Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption and permission — winching operations and emplaning and deplaning
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Under subregulation 151 (1) of the Civil Aviation Regulations 1988 (CAR 1988), the pilot in command of an aircraft in flight must not allow persons or objects to be picked up by the aircraft.
Under subregulation 250 (1) of CAR 1988, the operator of an aircraft must not permit a person to be carried on the wings or undercarriage of the aircraft, or any part of the aircraft that is not designed for the accommodation of the crew or passengers, or on anything attached to the aircraft. Under subregulation 250 (2), CASA may give permission, in respect of flights of a particular kind, for a person to be carried on or in a part of the aircraft that is not designed for the accommodation of the crew or passengers, or on or in anything attached to the aircraft. It is a defence to a prosecution under subregulation 250 (1) if the person had CASA’s permission under subregulation 250 (2).
Under subregulation 251 (1) of CAR 1988, seat belts must be worn by all crew members and passengers during take-off and landing, and when the aircraft is flying at a height of less than 1 000 feet above the terrain.
Civil Aviation Order (CAO) 29.11 applies to the conduct of operations by helicopters engaged in winching. Under paragraph 5.1 of CAO 29.11, winching operations are to be conducted over an operating area with a diameter of a specified length, that has no obstruction higher than 3 metres. The operating area must have a zone at its centre with a diameter of at least 5 metres that is clear of any obstruction or other hazard and is reserved for winching only.
Paragraph 5.1 of CAO 29.11 is subject to paragraph 5.5, which provides that paragraph 5.1 does not apply to advanced operational training operations in winching conducted on land for trained emergency service personnel if the operations are conducted over an operating area that is clear of any obstruction that is likely to foul the winch cable, and clear of any obstruction or other hazard that is likely to endanger any person on, or coming off, the winch cable.
Subsection 7 of CAO 29.11 requires multi-engine helicopters capable of hovering out of ground effect with 1 engine inoperative during the actual winching operation to be used for charter operations involving the carriage of passengers for hire or reward to or from any place on land and all operations involving winching over offshore platforms or vessels. However, paragraph 7.3 allows single engine helicopters to be used in actual rescue operations or in emergency situations, such as the insertion of fire-fighters or emergency services personnel.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or the Civil Aviation Orders. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Exemption and permissions
The instrument of exemption and permission applies to the State of New South Wales, acting through NSW National Parks and Wildlife Service, in relation to aerial work operations that involve emplaning and deplaning or winching.
Section 3 of the instrument grants the operator an exemption from the requirements of subregulations 151 (1) and 251 (1) of CAR 1988 and paragraph 5.1 and subsection 7 of CAO 29.11 when carrying out any of the aerial work activities mentioned in Schedule 2 of the instrument. Those activities include, at locations where it is not appropriate to land or have a helicopter landing site, collection of rare or endangered flora samples, collection of samples from feral animals for disease control, and insertion of personnel for noxious plant control purposes and for infrastructure construction.
Subsection 4 (1) of the instrument grants a permission, under subregulation 250 (2) of CAR 1988, to the operator to carry passengers in a part of the helicopter that is not designed for the accommodation of the crew or passengers, or on or in anything attached to the aircraft for the purpose of emplaning or deplaning or winching when carrying out the activities mentioned in Schedule 2.
In addition, subsection 4 (2) of the instrument confirms that a single engine helicopter may be used for winching operations when carrying out the activities mentioned in Schedule 2. This allows the operations to be conducted to the same aircraft standard as rescue operations and the insertion of emergency service personnel in emergency situations.
The exemption and permissions are subject to compliance with the conditions mentioned in Schedule 1. The conditions include that emplaning and deplaning may only be conducted where normal landing is not possible, and that winching may only be conducted where normal emplaning and deplaning from the hover are not possible. Only full-time employees of the operator may emplane, deplane or be winched, and only essential crew may be carried on the helicopter.
The operations must be conducted in accordance with the procedures set out in the operator’s operations manual, which CASA has reviewed and assessed as satisfactory. The manual contains appropriate risk assessment processes and stringent standards for air and ground crew training and proficiency.
The operator must ensure that the operating area for winching operations meets the criteria specified for advanced operational training operations in paragraph 5.5 of CAO 29.11. This allows winching to be carried out for the activities mentioned in Schedule 2 in an operating area that meets the standards required for advanced operational training operations in winching conducted on land for trained emergency service personnel.
Other conditions relate to communication with the pilot, briefing of each person taking part in the operation, and compliance with conditions in the operator’s low flying general permit.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of paragraph 5.1 and subsection 7 of CAO 29.11 and is, therefore, declared to be a disallowable instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator has requested the instrument. The instrument is beneficial to the operator and does not affect operations by any other person. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA, relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It expires at the end of February 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX43/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption and permission — winching operations and emplaning and deplaning
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
This legislative instrument exempts the New South Wales National Parks and Wildlife Service (the operator) from provisions of the Civil Aviation Regulations 1988 and Civil Aviation Order 29.11, and grants permissions to the operator, to allow the conduct of winching operations, emplaning and deplaning for specified aerial work activities. Those activities include, in limited circumstances, the collection of rare or endangered flora samples, collection of samples from feral animals for disease control, and insertion of personnel for noxious plant control purposes and for infrastructure construction.
The exemption and permissions allow the operator to conduct the operations in a way that would otherwise be prevented by provisions that: prevent an aircraft from picking up persons or objects; prevent the carriage of persons on any part of the aircraft that is not designed for the accommodation of the crew or passengers; require the wearing of seat belts in specified circumstances; specify the requirements for an operating area over which winching is conducted; and specify the requirements for helicopters used in winching operations.
The exemption and permissions are subject to conditions, imposed in the interests of the safety of air navigation, including conditions relating to training and compliance with the operator’s operations manual.
The purpose of this legislative instrument is to allow the operator to conduct winching operations, emplaning and deplaning from helicopters for the purpose of specified aerial work activities at locations where it is not appropriate to land or have a helicopter landing site.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority