Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX54/18 — ATSB Winching Operations Instrument 2018
Purpose
The purpose of this instrument is to allow Australian Transport Safety Bureau personnel (ATSB personnel) to safely access transport accident sites by helicopter winching, including if necessary by being winched into confined areas.
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 the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, 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 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, 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), the maximum duration of an exemption is 3 years.
Under subregulation 151 (1) of CAR, the pilot in command of an aircraft in flight must not allow persons or objects to be picked up by the aircraft. However, under paragraph 151 (3) (a) of CAR, it is a defence to a prosecution under subregulation 151 (1) if CASA has given prior written authority for the person or object to be picked up while the aircraft was in flight.
Under subregulations 250 (1) and (1A) of CAR, 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 paragraph 251 (1) (c) of CAR, subject to subregulation 251 (2), seatbelts must be worn by all crew members and passengers when the aircraft is flying at a height of less than 1 000 feet above the terrain. However, under subregulation 251 (3), CASA may direct that a specified type of safety harness shall be worn in place of a seatbelt in the circumstances set out in the direction. Under subregulation 251 (9) of CAR it is a defence to a prosecution under paragraph 251 (1) (c) if CASA directs that seatbelts need not be worn in that circumstance.
Civil Aviation Order 29.11 (CAO 29.11) relates to winching and rappelling operations. Paragraph 3.2 of CAO 29.11 grants an exemption from compliance with paragraph 251 (1) (a) of CAR, subject to the conditions in CAO 29.11. This exemption is continued by regulation 202.011 of CASR. 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.
Paragraph 14 (1) (a) of the Legislation Act 2003 (the LA) provides that a legislative instrument may apply, adopt or incorporate any matter contained in a disallowable instrument, as in force at a particular time or as in force from time to time.
Background
Under section 12AA of the Transport Safety Investigation Act 2003, the function of the Australian Transport Safety Bureau (ATSB) is to improve transport safety by means that include independently investigating transport safety matters.
ATSB personnel must be able to expeditiously access accident sites for investigation purposes, including to preserve information. At times, an accident site may be remote or otherwise difficult to access and the best method of access involving the least risk is for ATSB personnel to be winched from a helicopter into a confined area that does not meet the requirements of paragraph 5.1 of CAO 29.11.
In making its decision to grant the exemption in this instrument, CASA has regarded as paramount the preservation of at least an acceptable level of safety.
Instrument
To enable ATSB personnel to safely access accident sites by winching, including sites that are difficult to access, the instrument provides an authorisation, a direction and a permission under CAR, and an exemption under CASR from paragraph 5.1 of CAO 29.11.
For safety reasons, the instrument requires the winching to be to or from a “relevant aircraft”. A relevant aircraft is defined in the instrument as a multi-engine helicopter operated under an Air Operator’s Certificate (AOC) that authorises the conduct of helicopter winching operations, that can hover out of ground effect with 1 engine operative during winching and that has been hired by the ATSB to transport ATSB personnel to or from an accident site.
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commenced on the day after it was registered and is to be repealed at the end of 30 April 2021.
Section 3 provides some definitions for the instrument. A key defined term is relevant aircraft. Another is ATSB personnel, defined as meaning persons who are employees of the ATSB or who are engaged by the ATSB to conduct at least one investigation. The terms winching and winch or hoist have the meanings as defined in CAO 29.11.
CAO 29.11 is defined as meaning Civil Aviation Order 29.11, as in force from time to time. For the purposes of paragraph 14 (1) (a) of the LA, CAO 29.11 is a disallowable instrument. It is readily and freely available from the Federal Register of Legislation at https://www.legislation.gov.au, as is the Transport Safety Investigation Act 2003 that is referred to in the definition of accident site.
Section 4 provides an authorisation that enables the pilot in command of a relevant aircraft to pick up ATSB personnel and their equipment during winching operations.
Section 5 grants a permission under subregulation 250 (2) of CAR for the operator and pilot in command of a relevant aircraft to carry 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 winching of ATSB personnel during an ATSB winching operation.
The authorisation and permission are subject to conditions imposed by CASA in the interests of the safety of air navigation. These conditions are set out in Schedule 1 to the instrument, and include that the relevant aircraft must not carry anyone other than the eligible operator’s crew and ATSB personnel and that winching must not be conducted over an accident site that is reasonably accessible from a place where the relevant aircraft is permitted to land.
Section 6 provides a direction under subregulation 251 (3) of CAR that a winchman’s or rescue harness must be worn by ATSB personnel in place of a seatbelt during an ATSB winching operation to the extent necessary to winch the personnel to or from a relevant aircraft flying at a height of less than 1 000 feet above the terrain.
Section 6 requires the winchman’s or rescue harness to be attached to either a dispatcher’s restraint strap or the winch or hoist. A winchman’s or rescue harness is defined in section 3 as meaning a winchman’s or rescue harness that complies with ATSO-C1003, as in force from time to time. A dispatcher’s restraint strap is defined in section 3 as meaning a dispatcher’s restraint strap that complies with ATSO-C1001, as in force from time to time.
ATSO-C1003 is Schedule 26 ATSO-C1003 — Helicopter external personnel lifting devices set out in Schedule 26 to the Part 21 Manual of Standards Instrument 2016, as in force from time to time, and ATSO-C001 is Schedule 24 ATSO-C1001 — Dispatcher’s restraint strap set out in Schedule 24 to the Part 21 Manual of Standards Instrument 2016, as in force from time to time. Subsection 13.2 (2) of the Part 21 Manual of Standards Instrument 2016 provides for the citation of these Australian Technical Standard Orders by their ATSO number. The ATSOs set out minimum performance standards for specified articles used on civil aircraft. Both ATSOs, as Schedules to the Part 21 Manual of Standards Instrument 2016, as in force from time to time, are readily and freely available from the Federal Register of Legislation.
Section 7 provides an exemption for the operator and pilot in command of a relevant aircraft from compliance with paragraph 5.1 of CAO 29.11 for an ATSB winching operation. The exemption is necessary to enable ATSB personnel to access accident sites that are not accessible by winching over operating areas that comply with the requirements of CAO 29.11 in relation to the size of the area, and obstructions and hazards within the area. The exemption is subject to conditions mentioned in Schedule 1 to the instrument.
Schedule 1 sets out the conditions that apply to the authorisation, permission and exemption. For the authorisation, permission and exemption, the pilot in command must comply with the conditions mentioned in clauses 1 and 7. For the permission and exemption, the operator must comply with the conditions mentioned in clauses 1 to 7, which include that a preflight risk assessment must be undertaken by the operator.
Legislation Act 2003
Subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. Additionally, paragraph 98 (5A) (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. The instrument is a legislative instrument as it authorises pilots in command of relevant aircraft to pick up ATSB personal and objects accompanying them during flight, permits operators and pilots in command of these aircraft to carry ATSB personnel in parts of the relevant aircraft where crew or passengers are not generally allowed to be carried, and exempts these operators and pilots from a requirement of CAO 29.11. The instrument is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument is required to assist in transport accident investigations by ATSB. ATSB has requested the instrument and previously commented on the instrument replaced by this instrument. Helicopter operators and pilots (the other persons affected by the instrument) have also operated under the earlier instrument and the instrument does not substantially alter the existing arrangements other than to require a preflight risk assessment to be conducted by the operator and agreed to by the pilot in command, to ensure an acceptable level of safety. In these circumstances, CASA considers that no further consultation under section 17 of the LA 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 instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commenced on the day after it was registered and is to be repealed at the end of 30 April 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX54/18 — ATSB Winching Operations Instrument 2018
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 purpose of this legislative instrument is to allow Australian Transport Safety Bureau personnel (ATSB personnel) to safely access transport accident sites by helicopter winching, including if necessary by being winched into confined areas.
The instrument exempts operators and pilots in command of specified kinds of helicopters from a provision of Civil Aviation Order 29.11 (CAO 29.11) that sets out requirements for the operating areas over which winching operations are to be conducted. The purpose of the exemption is to enable ATSB personnel to access accident sites that are not accessible from winching over operating areas that comply with the requirements of paragraph 5.1 of CAO 29.11 in relation to the size of the area, and obstructions and hazards within the area.
The instrument also provides an authorisation, a direction and a permission under the Civil Aviation Regulations 1988 so that ATSB personnel may be transported safely by helicopter to and from accident sites, and winched to and from helicopters to access accident sites, including sites that are difficult to access, for the conduct of investigations.
The instrument authorises pilots in command of specified kinds of helicopters to pick up persons or objects during flight and permits operators and pilots in command of these helicopters to carry ATSB personnel in parts of the helicopters that are not designed for the accommodation of the crew or passengers.
The authorisation, permission and exemption 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 ATSB winching operations to the operator’s crew and ATSB personnel.
The instrument includes a CASA direction that ATSB personnel must wear a winchman’s or rescue harness in place of a seatbelt during ATSB winching operations to the extent necessary to winch the personnel from a helicopter flying at a height of less than 1 000 feet.
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