CASA EX46/14 - Exemption — carriage of children suffering from a serious medical condition

Overview

The Civil Aviation Act 1988 was enacted to provide for the regulation of civil aviation safety in Australia, addressing the need for a comprehensive legal framework to govern the safety and efficiency of civil aviation. The Act empowers the Governor-General to make regulations concerning civil aviation safety, with the overarching aim of preserving an acceptable level of safety. Under this Act, the Civil Aviation Safety Authority (CASA) has the authority to grant exemptions from compliance with certain regulations if necessary for safety reasons. This authority is exercised under the Civil Aviation Safety Regulations 1998, which include provisions for the exemption process and the conditions under which such exemptions may be granted. The policy objective of these regulations is to ensure that safety remains the paramount consideration in any exemption granted by CASA. In response to specific operational needs, CASA has the authority to issue exemptions under the Civil Aviation Act 1988, which allows airlines such as Virgin Australia Airlines to carry children suffering from serious medical conditions under certain conditions. This exemption, which was initially introduced and subsequently renewed, permits children over the age of two who cannot sit upright unaided and weigh less than 16 kilograms to be carried on the lap of an accompanying adult, provided they are restrained using an approved infant seat belt. This measure balances the need to accommodate children with serious medical conditions with the stringent safety requirements of civil aviation. The exemption is subject to CASA’s paramount consideration of maintaining an acceptable level of safety and is applicable only to specific aircraft types operated by the airline.

Scope and Application

The Civil Aviation Safety Regulations 1998, as amended by the instrument CASA EX46/14, provide a specific exemption for Virgin Australia Airlines Pty Ltd, enabling the operator to carry children over the age of 2 years suffering from a serious medical condition on its Boeing 737-700/800, Airbus A330, or Embraer 190 aircraft. This exemption allows such children, who are unable to sit upright unaided and weigh less than 16 kilograms, to be carried on an accompanying adult's lap while restrained with an approved infant seat belt, instead of requiring them to occupy their own seat and use an adult seat belt. The exemption is subject to certain conditions, including the notification of relevant staff about the child's medical condition. The exemption is applicable only to the specified aircraft and does not extend to other aircraft or operators. This legislative instrument, being a regulatory exemption, is subject to the legislative processes outlined in the Legislative Instruments Act 2003, including tabling and disallowance in Parliament. The exemption has been crafted to balance the needs of passengers with serious medical conditions while maintaining an acceptable level of safety, as mandated by the Civil Aviation Act 1988.

Key Provisions

The Civil Aviation Safety Regulations 1998 (CASR 1998) provide the framework within which the Civil Aviation Safety Authority (CASA) may grant exemptions from compliance with certain regulations. Specifically, under subregulation 11.160(1), CASA can exempt individuals from adhering to a provision of the regulations, provided certain conditions are met. Regulation 11.165 outlines the process for applying for such an exemption, while subregulation 11.170(3) emphasises that the paramount consideration in granting an exemption must be the preservation of an acceptable level of safety. Furthermore, subregulation 11.205(1) allows CASA to impose conditions on exemptions if necessary for the safety of air navigation. Under the Civil Aviation Regulations 1988 (CAR 1988), all crew members and passengers are required to wear seat belts during specific phases of flight. This requirement is echoed in paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3), with an exception for infants, defined as those under three years old, who can be carried on an adult’s lap but must be restrained by an approved infant seat belt. Previously, individual exemptions were granted to allow certain children over three years old, who could not sit upright unaided and met specific weight limitations, to be carried on an adult’s lap using an approved infant seat belt. The new exemption extends this provision to children suffering from serious medical conditions, provided they are over two years old, unable to sit upright unaided, and weigh less than 16 kilograms. The new exemption granted to Virgin Australia Airlines Pty Ltd, Aviation Reference Number 567591, allows them to carry children with serious medical conditions who meet the specified criteria on their Boeing 737-700/800, Airbus A330, or Embraer 190 aircraft. Staff who may reasonably be expected to come into contact with the child must be informed of the exemption and the child’s medical condition. This exemption applies to a class of persons as defined under subsection 98(5A) of the Civil Aviation Act 1988 (the Act), making it a legislative instrument subject to tabling and disallowance in Parliament. In terms of compliance and enforcement, the Act and the Legislative Instruments Act (LIA) impose obligations on CASA to ensure that the exemption does not compromise safety. The LIA requires CASA to consider the compatibility of the exemption with human rights, as evidenced by the Statement of Compatibility with Human Rights attached to the instrument. Any breach of the conditions of the exemption could result in civil or criminal penalties, depending on the severity of the breach and its impact on safety. The maximum penalties for such breaches are not explicitly stated in the provided text but would typically be in line with other aviation safety regulations.