Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Safety Regulations 1998
Exemption — carriage of children suffering from a serious medical condition
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of the regulations. Under regulation 11.165 of CASR 1998, a person may apply for an exemption.
Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under subregulation 251 (1) of CAR 1988, all crew members and passengers must wear seat belts during certain phases of flight. Paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) reflects this requirement but makes an exception for infants, who are defined as passengers who have not reached their 3rd birthday (subsection 2 of CAO 20.16.3). Infants may be carried on the lap of an adult passenger (paragraph 13.2 of CAO 20.16.3) but must be restrained by an approved infant seat belt to meet the requirements under subregulation 251 (1) of CAR 1988. Some individual exemptions have been issued previously, to allow children who are at least 3 years old, who are incapable of sitting upright and meet certain weight limitations, to be carried on an accompanying adult’s lap while restrained with an approved infant seat belt.
This instrument revokes and remakes instrument CASA EX61/09 which has an expiry date of 30 September 2011. The previous instrument CASA EX61/09 was for Virgin Blue Airlines Pty Limited, Aviation Reference Number 567591 (the operator). The operator has changed its name to Virgin Australia Airlines Pty Ltd. The new instrument uses the new name and allows the operator to carry children suffering from a serious medical condition without their having to occupy their own seat and use an adult seat belt. The child must be over 2 years old, suffer from a serious medical condition that makes it impossible for him or her to sit upright unaided and weigh less than 16 kilograms. An approved infant seat belt must be used to restrain the child while sitting on an accompanying adult’s lap. The conditions relating to the size of the child make it possible for him or her to be carried as mentioned.
Among other conditions, staff of the operator, who may reasonably be expected to come into contact with the child during carriage, must be informed that the child will be carried under this exemption and of the medical condition of the child.
The exemption will apply only to carriage in the operator’s Boeing 737-700/800, Airbus A330 or Embraer 170/190 aircraft.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. 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. The exemption applies to a class of persons that is children over 2 years old who are suffering from a serious medical condition. The exemption is, therefore, a legislative instrument and 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 remakes a previous instrument CASA EX61/09. The remake has become necessary because of the change in name of the operator and the need to add a new aircraft type to those already exempted by the previous instrument.
The instrument commences on the day after registration and stops having effect at the end of 30 June 2014.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX66/11]
Overview
The Civil Aviation Act 1988 was enacted by the Australian Parliament to provide a comprehensive framework for the regulation of civil aviation in Australia. The Act aims to ensure the safety and efficiency of civil aviation while facilitating the development of the aviation industry. One of the key mechanisms through which the Act achieves its objectives is by empowering the Governor-General to make regulations under subsection 98(1) of the Act. This power allows for the creation of detailed rules and standards that govern various aspects of aviation operations. One such regulation is the Civil Aviation Safety Regulations 1998, which includes provisions for exemptions from compliance with certain regulations under specific conditions. For instance, the Civil Aviation Safety Authority (CASA) can grant exemptions from the requirement to wear seat belts during certain phases of flight for children who are unable to sit upright due to a serious medical condition, provided they meet certain weight and age criteria. This regulatory approach ensures that safety is maintained while accommodating the needs of individuals with special circumstances.
Scope and Application
The Civil Aviation Safety Regulations 1998 (CASR 1998) under the Civil Aviation Act 1988 provides the framework for granting exemptions from certain regulations to ensure safety in air navigation. Specifically, under subregulation 11.160(1) of the CASR 1998, the Civil Aviation Safety Authority (CASA) can grant an exemption from compliance with a regulation if it is necessary for safety reasons. This particular legislative instrument, CASA EX66/11, revokes and remakes the previous exemption CASA EX61/09, now applying to Virgin Australia Airlines Pty Ltd. The exemption allows the airline to carry children over 2 years old who suffer from a serious medical condition that prevents them from sitting upright unaided and who weigh less than 16 kilograms, on the lap of an accompanying adult if restrained by an approved infant seat belt. This exemption applies to specific aircraft types operated by the airline. The exemption is subject to certain conditions, including informing relevant staff of the child’s medical condition. The legislative instrument is classified as such under subsection 98(5A) of the Act and is subject to tabling and disallowance in Parliament as per the Legislative Instruments Act. This instrument, which comes into effect after registration, will cease to have effect by 30 June 2014.
Key Provisions
The Civil Aviation Safety Regulations 1998, under section 11.160, provide that the Civil Aviation Safety Authority (CASA) may grant exemptions from compliance with certain provisions of the regulations. This authority is exercised in accordance with subregulation 11.165, which allows for applications for exemptions. Importantly, under subregulation 11.170(3), when considering whether to grant such an exemption, CASA must prioritise the preservation of an acceptable level of safety. This ensures that any exemptions granted do not compromise the safety of air navigation. Furthermore, CASA may impose conditions on an exemption if necessary for safety reasons, as stipulated in subregulation 11.205(1).
The primary obligation imposed by this legislation is on Virgin Australia Airlines Pty Ltd to ensure that children who qualify for the exemption meet specific criteria. These criteria include being over 2 years old, suffering from a serious medical condition that makes it impossible for them to sit upright unaided, and weighing less than 16 kilograms. The child must be restrained using an approved infant seat belt while sitting on an accompanying adult’s lap. Additionally, the airline must inform relevant staff about the child’s condition and the exemption under which they are being carried. This obligation ensures that both the safety and comfort of the child are maintained throughout the flight.
Breaches of the conditions set forth in the exemption may result in serious consequences. Under the Civil Aviation Act 1988, failure to comply with the terms of an exemption can be considered a breach of the regulations. Such breaches may lead to enforcement actions by CASA, which could include fines or other penalties as stipulated in the Act. The specific maximum penalties are not detailed in the provided text, but they generally align with the broader regulatory framework governing civil aviation safety in Australia. The severity of the consequences underscores the importance of adhering to the conditions of the exemption to maintain safety standards.