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 subregulation 151 (3), CASA may give prior written authority for the pilot to do so, subject to conditions specified in the authority.
Under subregulation 250 (1) 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. 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. Under subregulation 250 (3), CASA may, when granting a permission, specify conditions subject to which a person may be carried.
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 CAR 1988. Subregulation 11.170 (3) provides that 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.
ATSB’s strategic objective is to “independently investigate transport safety matters”, and ATSB is empowered to perform this function under the Transport Safety Investigation Act 2003.
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. The exemption 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. The exemption applies to these AOC holders and the pilot in command of a helicopter operated by any of the eligible operators.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO), and CASA later issues an instrument that in any way affects the operation of the CAO, the later instrument is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA 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 and 4.1 of CAO 29.11 and is, therefore, legislative.
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, specified staff of ATSB, specified AOC holders and a pilot in command of a helicopter and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required to assist in transport accident investigations by ATSB.
Compatibility with human rights and freedoms
This 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. The instrument does not engage any of the applicable rights or freedoms.
Commencement and making
The instrument comes into effect on the day after registration and stops having effect at the end of March 2015.
The instrument has been made by the Director of Aviation Safety in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX61/12]