Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX75/21 — Life Jacket Standard (Heli-Aust Whitsundays Marine Transfer Operations) Exemption 2021
Purpose
The purpose of the instrument of exemption is to allow the use of certain personal flotation devices (SOS PFDs) during shore-to-ship, ship-to-shore or ship-to-ship transfer operations conducted by Heli-Aust Whitsundays Pty Limited (the exempted operator). The term SOS PFDs refers to SOS‑6167‑8 and SOS‑6167‑15 personal flotation devices manufactured by Case Investments Pty Ltd, trading as S O S Marine.
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 Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR).
Emergency and lifesaving equipment
Subregulation 207 (2) of CAR states that a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with, or carrying, equipment, including emergency equipment, that the Civil Aviation Safety Authority (CASA) has approved and directed.
Subregulation 207 (3) states that a person must fit, carry or use the item of equipment on the aircraft only in accordance with the directions (if any) of CASA.
Subregulation 252 (1) of CAR gives CASA the power to give directions in relation to the provision in Australian aircraft of such emergency systems and equipment, and life-saving equipment, as CASA considers necessary to safeguard the aircraft and persons on board. Under subregulations 252 (1A) and (1B) of CAR, it is a strict liability offence for a person to contravene such a direction.
Regulation 253 of CAR relates to the competency and testing of crew members of aircraft in the use of emergency and life-saving equipment and the familiarity of passengers in the use of emergency equipment. Subregulation 253 (5) requires the training and testing of crew members and the familiarisation of passengers required by regulation 253 to be carried out in such manner as CASA specifies to be satisfactory.
Under regulation 5 of CAR, if CASA is empowered to issue a direction under CAR, it may do so in a Civil Aviation Order (CAO).
CAO 20.11, which relates to emergency and lifesaving equipment, is expressed to be made under subregulations 207 (2), 252 (1) and 253 (5) of CAR. Paragraph 5.1 of CAO 20.11 relates to life jackets. Subparagraph 5.1.6 (a) of CAO 20.11 requires that life jackets must comply with a standard approved by CASA. The SOS PFDs are life jackets.
Subsection 3 of CAO 20.11 requires that an operator must ensure that emergency and lifesaving equipment, carried or installed in an aircraft to meet the requirements of CAO 20.11, is maintained in such condition that it will satisfactorily perform its design function.
Exemptions
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 the regulations or of a CAO.
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 of CASR provides that CASA may impose any condition on an exemption under Subpart 11.F that is 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 an obligation imposed by a condition.
Regulation 11.225 of CASR requires an exemption under Subpart 11.F to be published on the internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Background
The exemption allows the use of SOS PFDs by the exempted operator on overwater flights although they do not comply with a standard approved by CASA. This is because they include advanced features that require specialist user knowledge, procedures and training, such as an automatic inflation feature and buckles for a deck tether harness.
The exempted operator conducts shore-to-ship, ship-to-shore or ship-to-ship transfer operations for marine pilots (marine transfer operations). During those operations, the marine pilot is required to wear a life jacket at all times. The exemption permits the exempted operator, the helicopter pilot and the marine pilot to use the SOS PFDs to meet that requirement.
Apart from the complexity of the auto-inflation and deck tether harness safety features, the SOS PFDs are of a type and quality that meet CASA emergency equipment standards.
The exempted operator previously held an exemption, CASA EX16/18 — Life Jacket Standard (Heli-Aust Whitsundays Transfer Operations) Exemption 2018 (CASA EX16/18), which allowed use of the SOS PFDs. That exemption was repealed on 31 January 2021 in accordance with its terms. This instrument renews the exemption subject to substantially the same conditions. In accordance with subregulation 11.175 (4) of CASR, CASA is satisfied that doing so preserves at least an acceptable level of safety.
Instrument
Section 1 names the instrument.
Under section 2, the instrument commences on the day after it is registered on the Federal Register of Legislation and is repealed immediately after the commencement of Schedule 1 of the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions ) Regulations 2021 (the Flight Operations—Consequential Amendments Regulations). The repeal of provisions, such as regulations 207, 252 and 253 of CAR, in that Schedule will remove the need for the exemption as well as the basis on which CAO 20.11 was issued. The instrument is repealed at the end of 31 May 2024 if Schedule 1 of the Flight Operations—Consequential Amendments Regulations does not commence before that time.
Section 3 of the instrument contains definitions:
exempted operator is defined to mean Heli-Aust Whitsundays Pty Limited.
exempted person is defined to mean a person, including the exempted operator, who fits, carries or uses an SOS PFD during a marine transfer operation. That definition uses the expression “a person … who fits, carries or uses” an SOS PFD for consistency with the wording of subregulation 207 (3) of CAR. The definition intends persons of that kind to include the pilot in command of a marine transfer operation and a marine pilot transferred during the operation.
marine transfer operation means a helicopter operation, conducted by the exempted operator, to transport a marine pilot wearing an SOS PFD in a shore-to-ship, ship-to-shore or ship-to-ship operation.
The definition of required maintenance refers to annual servicing and testing, performed in accordance with the manufacturer’s instructions and required under subsection 3 of CAO 20.11.
The definition of SOS PFD refers to an SOS‑6167‑8 model, or an SOS‑6167‑15 model, personal flotation device manufactured by Case Investments Pty Ltd, registered under the business name of S O S Marine.
In relation to an SOS PFD, subsection 4 (1) of the instrument exempts the exempted operator from compliance with subregulation 207 (2) of CAR, to the extent that the subregulation requires an Australian aircraft used during a marine transfer operation to carry equipment, including emergency equipment, that CASA has approved and directed.
In relation to an SOS PFD, subsections 4 (2) and (3) of the instrument exempt an exempted person from compliance with:
(a) for subsection 4 (2), subregulation 207 (3) of CAR, to the extent that where CASA approves or directs that an item of equipment be fitted or carried on an aircraft, a person must fit, carry or use the item of equipment on the aircraft only in accordance with the directions (if any) of CASA; and
(b) for subsection 4 (3), subparagraph 5.1.6 (a) of CAO 20.11, to the extent that the subparagraph requires a life jacket worn by an individual during a marine transfer operation to comply with a standard approved by CASA.
Subsection 4 (4) of the instrument makes the exemptions in subsections 4 (1), (2) and (3) subject to the conditions mentioned in sections 5 and 6.
Section 5 of the instrument sets out the conditions to which the exemptions in subsections 4 (1), (2) and (3) are subject.
Subsection 5 (1) sets out certain equipment that an exempted PFD must have. These are:
(a) reflective markings; and
(b) a whistle; and
(c) a light; and
(d) a manual inflation function.
In addition, the exempted operator must ensure that the required maintenance for an SOS PFD is performed as required by an appropriate organisation.
Under subsection 5 (2), the exempted operator must ensure that each person who wears an SOS PFD during a marine transfer operation has demonstrated competence in certain matters relating to use of an SOS PFD.
Under subsection 5 (3), the exempted operator must ensure the following:
(a) each individual who wears an SOS PFD during the marine transfer operation weighs 60 kg or more; and
(b) the pilot in command of the operation and each individual who wears an SOS PFD during the operation have reviewed a copy of this instrument and are familiar with its conditions; and
(c) the pilot in command of the operation has, in the previous 6 months, demonstrated competence to the exempted operator to:
(i)identify that the auto-inflation feature is disarmed; and
(ii) disarm and re-arm the auto-inflation feature.
It has been ascertained that for the safe and efficient use of an SOS PFD a person must weigh more than 60 kg. There is a manufacturer’s requirement to that effect.
Under subsection 5 (4), the exempted operator is required to keep certain records relating to:
(a) the periodic demonstration of competencies in use of the automatic inflation feature and buckle system of the SOS PFD, and helicopter emergency escape procedures; and
(b) performance of the required maintenance of SOS PFDs.
Subsection 5 (5) of the instrument sets out the requirements that a person wearing an SOS PFD must comply with as a condition of their exemption. These are requirements that are already applicable to them as previously mentioned in section 5, but not as direct conditions.
Section 6 imposes a condition on the pilot in command of a marine transfer operation to ensure that the auto-inflation function of all SOS PFDs on board the helicopter is deactivated before each flight.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act states that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Also, paragraph 98 (5AA) (a) states 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 applies to classes of persons under the definition of exempted person and is a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA
Consultation
This instrument replaces a previous instrument (CASA EX16/18) which was repealed at the end of 31 January 2021 and is made in substantially similar terms. The exemption is of beneficial effect to the safety of the marine transfer operations, subject to the conditions of the exemption being satisfied. CASA will issue similar exemptions to other operators on proof that the appropriate safety conditions will be met. The exempted operator has requested this instrument and has provided CASA with a satisfactory safety case for reissuing it. In those circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
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 for 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 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The right to safe working conditions is positively engaged because the SOS PFDs provide a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard. The minimum weight of 60 kg may be considered discriminatory against lighter persons, but it is a limitation that the manufacturer considers necessary in the interests of safety for proper functioning of the equipment.
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 commences on the day after it is registered. It is repealed at the earlier of: the commencement of Schedule 1 of the Flight Operations—Consequential Amendments Regulations and the end of 31 May 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX75/21 — Life Jacket Standard (Heli‑Aust Whitsundays Marine Transfer Operations) Exemption 2021
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 instrument of exemption allows the use of particular models of personal flotation devices (SOS PFDs), not approved by CASA, during operations, conducted by Heli-Aust Whitsundays Pty Limited, to transfer marine pilots between ships and land. The SOS PFDs have not been approved for use by CASA because they include some advanced features that require specialist user knowledge, procedures and training. The SOS PFDs are life jackets that otherwise meet CASA’s safety standards.
The instrument of exemption is subject to conditions imposed by CASA in the interests of aviation safety.
Human rights implications
This legislative instrument engages with the right to safe working conditions in Article 7 of the International Covenant on Economic, Social and Cultural Rights. The right is positively engaged because the SOS PFDs provide a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard.
The minimum weight for use of the SOS PFDs of 60 kg may be considered discriminatory against lighter persons, but it is a limitation that the manufacturer considers necessary for the safe use of an SOS PFD and the proper functioning of the equipment. The instrument does not prevent the use of life jackets that meet the CASA standard by persons weighing less than 60 kg during marine transfer operations.
Conclusion
This legislative instrument is compatible with human rights because it promotes the right to safe working conditions.
Civil Aviation Safety Authority