Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX46/19 — Victoria Police (Special Operations Group) Instrument 2019
Purpose
The purpose of this instrument is to enable an operator, the State of Victoria, acting through the Victoria Police Air Wing (the operator), to conduct a range of operations for or related to the law enforcement or counterterrorism functions of the Victoria Police that would otherwise contravene the Civil Aviation Regulations 1988 (CAR).
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CAR and the Civil Aviation Safety Regulations 1998 (CASR).
Civil Aviation Regulations 1988
Subregulation 151 (1) of CAR prohibits the pilot in command of an aircraft in flight from allowing persons to be picked up by the aircraft. However, under subregulation 151 (3), it is a defence if the Civil Aviation Safety Authority (CASA) gave prior written authority for the person to be picked up while the aircraft was in flight and the person was picked up in accordance with any conditions specified in the authority.
Subregulation 207 (3) of CAR provides that where CASA approves or directs that an instrument or item of equipment be fitted or carried on an aircraft, a person must carry or use the instrument or item of equipment only in accordance with any direction CASA may give having regard to the safety of air navigation.
Under subregulation 215 (3) of CAR, CASA may give a direction requiring an operator engaging in commercial operations to include particular information, procedures and instructions in its operations manual. Subregulation 215 (9) makes it an offence for a member of the operations personnel of an operator to fail to comply with an instruction contained in the operator’s operations manual insofar as it relates to the member’s duties.
Subregulations 235 (7) and (7A) of CAR provide that a person must comply with a direction that CASA makes for the purpose of ensuring the safety of air navigation with respect to the method of loading persons or goods on aircraft.
Subregulations 250 (1) and (1A) of CAR prohibit the operator and pilot in command of an aircraft from permitting a person to be carried on anything attached to the aircraft or any part of the aircraft that is not designed for the accommodation of the crew or passengers. Subregulation 250 (2) provides that CASA may, in respect of certain flights, permit a person to be carried on or in a part of an aircraft that is not designed for the carriage of the crew or passengers.
Subregulation 251 (1) of CAR requires seat belts to be worn by all crew members and passengers during take-off and landing, during an instrument approach, when the aircraft is flying at a height of less than 1 000 feet above the terrain, and at all times in turbulent conditions.
Civil Aviation Orders
Under regulation 5 of CAR, where the regulations empower CASA to issue a direction, CASA may do so in Civil Aviation Orders (CAOs).
Paragraphs 3.1 and 4.1 of CAO 20.16.3, respectively, require a person to occupy a seat, and to wear a seat belt or harness while the aircraft is flying at a height of less than 1 000 feet above the terrain.
Paragraph 9.1 of CAO 20.16.3 requires loose articles in the cabin of an aircraft, including items of equipment and crew members’ and passengers’ personal effects, to be stowed so as to avoid the possibility of injury to persons or damage to the aircraft through the movement of such articles caused by in-flight turbulence or by unusual accelerations or manoeuvres. Paragraph 9.3 of CAO 20.16.3 requires all solid articles to be placed in approved stowage at all times when seat belts are required to be worn in accordance with paragraph 4.1.
Civil Aviation Safety Regulations 1998
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations and CAOs. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations or a CAO.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons and may specify the class by reference to membership of a specified body or any other characteristic. Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if the conditions are necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, it is an offence of strict liability to contravene a direction under regulation 11.245.
Regulation 21.305 of CASR provides for the approval by CASA of materials, parts, processes and appliances.
Under Subpart 21.O of CASR, an Australian Technical Standard Order (ATSO) contains minimum performance standards for specified articles used on civil aircraft. ATSO-C1001 relates to dispatcher’s restraint straps and ATSO-C1003 relates to winchman’s or rescue harnesses. The ATSOs can be found in the Part 21 Manual of Standards (Federal Register of Legislation reference F2017C01160).
Background
The operator operates a fleet of multi-engine helicopters that support policing activities in Victoria. The operator has applied for exemptions and authorisations to allow it to conduct winching, rappelling, emplaning and deplaning from helicopters in the hover, and helocasting during operations in support of its law enforcement and counterterrorism functions. Helocasting involves a person disembarking a helicopter into water while it is travelling at slow speed at an established height.
Overview of instrument
The instrument enables the operator to conduct a range of operations that involve a person engaging in winching, rappelling, emplaning and deplaning in the hover, and helocasting from helicopters. CASA has assessed the operator’s submission for the instrument, including documents and procedures, and is satisfied the instrument will maintain an acceptable level of safety of the operator’s aviation operations.
Content of instrument
Section 1 of the instrument states the name of the instrument.
Section 2 of the instrument states when the instrument commences and is repealed. A note confirms that the directions made under regulation 11.245 of CASR cease to be in force on the day the instrument is repealed.
Section 3 of the instrument provides definitions for terms used in the instrument. Importantly, it defines the terms relevant aircraft, SOG member and SOG operation, which are used to define the scope of the instrument.
A relevant aircraft is a helicopter, operated by the operator under an Air Operator’s Certificate (AOC) that authorises the conduct of helicopter winching and rappelling operations, emplaning and deplaning from the hover and helocasting, that is fitted with specified restraint straps and harnesses. Conditions in the instrument also require the helicopter to have an approved attachment point.
An SOG member is an individual who is conducting activities for an SOG operation. If the person is not an employee of the Victoria Police, the person must be a member of a military, paramilitary or police organisation and must be acting under an arrangement between the Victoria Police and that organisation. Such organisations may include the Australian Defence Force, the Australian Federal Police, the police force of another Australian State or Territory, and the military or police force of another country. An aircrew member and the pilot in command of the relevant aircraft are not SOG members.
An SOG operation is an operation conducted by the operator using a relevant aircraft for, or related to, the law enforcement or counterterrorism functions of the Victoria Police, or related training.
Section 3 also includes definitions of the terms helocast and hover exit or entry and definitions relating to various safety fittings and equipment used in SOG operations.
Section 4 of the instrument lists the persons to whom the instrument applies, being: the operator and the Victoria Police Special Operations Group; the pilot in command and aircrew members of a relevant aircraft; and SOG members.
Section 5 of the instrument is a written authority under subregulation 151 (3) of CAR allowing an SOG member, and an object accompanying an SOG member, to be picked up while a relevant aircraft is in flight.
Sections 6 to 9 of the instrument grant exemptions to the operator, the pilot in command of a relevant aircraft, SOG members and aircrew members of a relevant aircraft, respectively, from specified provisions of CAR and CAO 20.16.3. Each exemption is subject to specified conditions in section 12 of the instrument.
Section 6 exempts the operator, when conducting an SOG operation, from the requirements in paragraphs 9.1 and 9.3 of CAO 20.16.3 in relation to the stowage of loose articles. It also exempts the operator from subregulations 207 (3) and 235 (7A) of CAR to the extent that they require compliance with those paragraphs of CAO 20.16.3. The exemption is subject to the condition in subsection 12 (1) relating to carriage and stowage of loose articles.
Section 7 exempts the pilot in command of a relevant aircraft conducting an SOG operation from the requirements in paragraphs 9.1 and 9.3 of CAO 20.16.3 in relation to the stowage of loose articles. It also exempts the pilot from subregulations 207 (3) and 235 (7A) to the extent that they require compliance with those paragraphs of CAO 20.16.3. The exemption is subject to the condition in subsection 12 (1) relating to carriage and stowage of loose articles.
Section 8 grants exemptions to SOG members on a relevant aircraft being used in an SOG operation. It exempts them from subregulation 251 (1) of CAR and paragraphs 3.1 and 4.1 of CAO 20.16.3 in relation to occupying a seat and wearing a seat belt. It also exempts SOG members from subregulations 207 (3) and 235 (7A) to the extent that they require compliance with those paragraphs of CAO 20.16.3. The exemption from compliance with subregulation 251 (1) is subject to the condition in subsection 12 (4) requiring the SOG member to wear an approved harness.
Section 8 also exempts SOG members from the requirements in paragraphs 9.1 and 9.3 of CAO 20.16.3 in relation to the stowage of loose articles and from subregulations 207 (3) and 235 (7A) to the extent that they require compliance with those paragraphs of CAO 20.16.3. These exemptions are subject to the condition in subsection 12 (2) relating to carriage and stowage of loose articles.
Section 9 grants the same exemptions to an aircrew member on a relevant aircraft being used in an SOG operation as section 8 grants to an SOG member. The exemptions granted to the aircrew member are subject to the same conditions as the exemptions granted to an SOG member, except that the exemption from compliance with subregulation 251 (1) of CAR is subject to the condition in subsection 12 (3) requiring the aircrew member to wear a winchman’s or rescue harness, rather than an approved harness.
Section 10 of the instrument is a permission under subregulation 250 (2) of CAR. It permits an SOG member to be carried on part of a relevant aircraft that is not designed for the carriage of the crew or passengers, such as the undercarriage, or anything attached to the aircraft, such as a rope used for rappelling, for an SOG operation.
Subsection 11 (1) of the instrument is a direction under subregulation 215 (3) of CAR requiring the operator to include a copy of the instrument in its operations manual.
Subsections 11 (2) and (3) of the instrument issue directions under regulation 11.245 of CASR that are necessary in the interests of the safety of air navigation.
Paragraph 11 (2) (a) requires the operator to ensure that each winchman’s or rescue harness worn by an aircrew member on a relevant aircraft used for an SOG operation is secured to an approved attachment point by a dispatcher’s restraint strap.
Paragraph 11 (2) (b) requires the operator to ensure that an approved harness is attached to each dispatcher’s restraint strap that is available for use by an SOG member in a relevant aircraft.
Subsection 11 (3) directs the operator and its pilot in command of a relevant aircraft to ensure that SOG members do not engage in a helocast or a hover exit or entry at a location if a normal landing at the location is possible and safe. The exception to this requirement is if the helocast or hover exit or entry is for the purposes of training related to the law enforcement or counterterrorism functions of the Victoria Police.
Subregulation 215 (6) of CAR requires the operator to give a copy of its operations manual to its personnel. Paragraph 11 (2) (c) also requires the operator to provide a copy of the instrument, or at least a document reproducing the directions and conditions in sections 11 and 12 of the instrument, to each pilot in command of, and each SOG member and aircrew member on, a relevant aircraft being used for an SOG operation.
Section 12 of the instrument contains the conditions imposed by CASA on the various exemptions in sections 6 to 9 of the instrument.
Subsection 12 (1) requires the operator and pilot in command to ensure that aircrew members and SOG members comply with the requirements in subsection 12 (2) relating to carriage and stowage of loose articles. Subsection 12 (2) requires an aircrew member or SOG member who takes a loose article onto a relevant aircraft to stow the article within or secure the article to the aircraft, or to hold on to or otherwise secure the article on the person’s body during the flight, to avoid the possibility of injury or damage to the aircraft caused by movement of the article.
Subsection 12 (3) requires an aircrew member, when on board a relevant aircraft for an SOG operation, to wear a winchman’s or rescue harness secured to an approved attachment point by a dispatcher’s restraint strap.
Similarly, subsection 12 (4) requires an SOG member, when on board a relevant aircraft for an SOG operation, to wear an approved harness attached to a dispatcher’s restraint strap secured to an approved attachment point in the aircraft. However, subsection 12 (4) is subject to subsection 12 (5), which excuses the SOG member, in limited specified circumstances, from wearing an approved harness attached to a dispatcher’s restraint strap secured to an approved attachment point in the aircraft.
Under subsection 12 (5), the SOG member is excused from compliance with subsection 12 (4) if non-compliance will enable the SOG member to engage in a hover exit or entry or a helocast for the purposes of an SOG operation. For a hover exit or entry, the helicopter must be established in the hover at the height at which the hover exit or entry will take place. For a helocast, the helicopter must be established at the height at which the SOG member will leave the helicopter and have a ground speed of not more than 10 knots.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons, whereas paragraph 98 (5AB) (a) of the Act provides that such an instrument is not a legislative instrument if it is expressed to apply in relation to a particular person. Although it is not beyond doubt, it is arguable that SOG members are a class of persons, rather than particular persons, and that the instrument is, therefore, a legislative instrument. To avoid doubt, the instrument is registered as a legislative instrument and, therefore, under subsection 8 (3) of the LA, is a legislative instrument. The instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument has been made at the request of the operator and has been developed in consultation with the operator. The instrument is similar to an instrument issued in relation to similar operations conducted by the New South Wales Police Force (CASA EX87/18). CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions, permissions and exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day after it is registered and is repealed at the end of 30 April 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX46/19 — Victoria Police (Special Operations Group) Instrument 2019
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 grants authorisations and exemptions to the State of Victoria, acting through the Victoria Police Air Wing, its pilots, aircrew members and Special Operations Group members, to enable the conduct of certain types of helicopter operations. Those operations include operations that involve winching and rappelling, or a person embarking and disembarking a helicopter when it is in the hover, or helocasting from a helicopter.
The purpose of the instrument is to, in limited circumstances, remove legislative restrictions that would otherwise prevent such operations. The instrument also contains conditions and directions in the interests of the safety of air navigation.
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