Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption and permission — AOC holders with winching and rappelling privileges and the Australian Transport Safety Bureau (ATSB)
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.
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 subregulations 250 (1) and (1A) of CAR 1988, the operator of an aircraft and the pilot in command must not permit a person to be carried on the wings or undercarriage, 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. However, under subregulation 250 (6), it is a defence to a prosecution under subregulation 250 (1) or (1A) if the person has CASA’s permission under subregulation 250 (2). Under subregulation 250 (2), a person may, with CASA’s permission given in respect of certain flights, be carried on, or in, a part of an aircraft that is not designed for the accommodation of the crew or passengers, or on, or in, anything attached to the aircraft. Under subregulation 250 (3), CASA may, when granting a permission, specify conditions subject to which a person may be carried.
Under paragraphs 251 (1) (a) and (c) of CAR 1988, subject to other provisions of regulation 251, 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 relates to winching and rappelling operations. Paragraph 3.2 of CAO 29.11 grants an exemption from compliance with paragraphs 251 (1) (a) and (c) of CAR 1988, subject to the conditions in CAO 29.11. Paragraph 5.1 of CAO 29.11 contains a condition requiring the operating area over which winching and rappelling operations are conducted to meet specified standards relating to the size of the area, and obstructions and hazards within the area.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that CASA may exempt a person, or class of persons, from compliance with a provision of CASR 1998, CAR 1988 or a CAO. Subregulation 11.170 (3) provides that, in making its decision whether to grant an exemption, CASA must regard the preservation of a level of aviation safety that is at least acceptable as paramount. Regulation 11.205 provides that CASA may impose on an exemption any condition necessary in the interests of safety and set out that condition in the instrument of exemption. Under regulation 11.230, the duration of an exemption cannot be more than 3 years.
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.
Background
Under section 12AA of the Transport Safety Investigation Act 2003, ATSB’s function is to improve transport safety by means that include independently investigating transport safety matters.
ATSB operations require that it is able to expeditiously access the site of an immediately reportable matter, that is a transport accident, to, among others things, preserve information. The location of transport accidents cannot be controlled or predicted. At times, an accident site is highly inaccessible and the least risk method of access, commensurate with Parliament’s expectation of a prompt response, may be by helicopter. On occasions, helicopter winching into confined areas may be the preferable option.
Instrument
The instrument will ensure that this is able to be done. ATSB has to rely on AOC holders whose AOC allows them to conduct winching and rappelling operations (eligible operators). The exemption applies to these AOC holders and the pilot in command of a helicopter operated by any of the eligible operators.
The instrument exempts eligible operators and their pilots, and the ATSB, from subregulation 151 (1) and paragraphs 251 (1) (a) and (c) of CAR 1988 and paragraph 5.1 of CAO 29.11, but only for accident investigations which use the eligible operator’s helicopter and are conducted by ATSB.
The instrument also grants a permission under subregulation 250 (2) of CAR 1988 to the eligible operators and pilots, to allow the transport of ATSB personnel on, or in, part of the helicopter that is not designed for the accommodation of the crew or passengers, or on, or in, anything attached to the helicopter for the purpose of emplaning or deplaning when carrying out accident investigations.
The exemption and permission are subject to conditions imposed by CASA in the interests of the safety of air navigation. Those conditions include that the helicopter must not carry anyone other than the eligible operator’s crew and staff approved by the ATSB, and that all requirements of CAO 29.11 (other than paragraph 5.1) must be complied with.
CASA made a similar instrument, CASA EX61/12, in 2012. That instrument expires at the end of 31 March 2015. This instrument repeals and replaces CASA EX61/12.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption or permission that affects the operation of the CAO, the later instrument is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The instrument affects the operation of paragraph 5.1 of CAO 29.11 and is, therefore, a legislative instrument.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. 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 or aircraft. The instrument applies to a class of persons, namely, holders of AOCs which authorise the conduct of helicopter winching and rappelling operations and pilots in command of helicopters operated by such an operator, and is, therefore, a legislative 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 instrument is required to assist in transport accident investigations by ATSB. ATSB has requested the instrument and has commented on a draft of the instrument. As no other persons are affected by the instrument, CASA considers that no further consultation under section 17 of the LIA is appropriate or necessary.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
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 under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 April 2015 and expires at the end of March 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX50/15]
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 — AOC holders with winching and rappelling privileges and the Australian Transport Safety Bureau (ATSB)
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 eligible helicopter operators and their pilots, and the Australian Transport Safety Bureau (ATSB), from provisions of the Civil Aviation Regulations 1988 and Civil Aviation Order 29.11, and grants permission to the operators and pilots, to allow the transport of ATSB personnel when carrying out accident investigations.
The exemption and permission allow the eligible operators 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; and specify the requirements for an operating area over which winching is conducted.
The exemption and permission are subject to conditions, imposed in the interests of the safety of air navigation, including a condition limiting the people carried on a helicopter for a winching and rappelling operation to the eligible operator’s crew and staff approved by ATSB.
The purpose of this legislative instrument is to allow the operator to conduct winching operations, and emplaning and deplaning from helicopters, for the purpose of carrying ATSB personnel to accident sites.
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