Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Safety Regulations 1998
Exemption — carriage of children suffering from a serious medical condition
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) empowers the
Governor-General to make regulations.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of the regulations. Under regulation 11.165 of CASR 1998, a person may apply for an exemption.
Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under subregulation 251 (1) of the Civil Aviation Regulations 1988 (CAR 1988), all crew members and passengers must wear seat belts during certain phases of flight. Paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) reflects this requirement but makes an exception for infants, who are defined as passengers who have not reached their 3rd birthday (subsection 2 of CAO 20.16.3). Infants may be carried on the lap of an adult passenger (paragraph 13.2 of CAO 20.16.3) but must be restrained by an approved infant seat belt to meet the requirements under subregulation 251 (1) of CAR 1988. Some individual exemptions have been issued previously, to allow children who are at least 3 years old, who are incapable of sitting upright and meet certain weight limitations, to be carried on an accompanying adult’s lap while restrained with an approved infant seat belt.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This instrument repeals and remakes instrument CASA EX66/11 which has an expiry date of 30 June 2014. The new instrument allows Virgin Australia Airlines Pty Ltd, Aviation Reference Number 567591 (the operator) to carry children suffering from a serious medical condition without their having to occupy their own seat and use an adult seat belt. The child must be over 2 years old, suffer from a serious medical condition that makes it impossible for him or her to sit upright unaided and weigh less than 16 kilograms. An approved infant seat belt must be used to restrain the child while sitting on an accompanying adult’s lap. The conditions relating to the size of the child make it possible for him or her to be carried as mentioned.
Among other conditions, staff of the operator who may reasonably be expected to come into contact with the child during carriage must be informed that the child will be carried under this exemption and of the medical condition of the child.
The exemption will apply only to carriage in the operator’s Boeing 737-700/800, Airbus A330 or Embraer 190 aircraft.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons. The exemption applies to a class of persons that is children over 2 years old who are suffering from a serious medical condition. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
The instrument has been requested by the operator. The instrument remakes a previous instrument CASA EX66/11, which expires at the end of 30 June 2014. The operator applied for the renewal of the exemption. 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.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 July 2014, and expires at the end of June 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX46/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — carriage of children suffering from a serious medical condition
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
The legislative instrument allows children suffering from a serious medical condition to wear an infant seat belt instead of a standard seat belt on specified aircraft operated by Virgin Australia Airlines Pty Ltd.
The purpose of the instrument is to enable children who meet specified criteria, including being unable to sit upright unaided, to be carried on the aircraft.
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