Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX79/21 — Carriage of Children with a Serious Medical Condition (Regional Express) Instrument 2021
Purpose
The purpose of CASA EX79/21 — Carriage of Children with a Serious Medical Condition (Regional Express) Instrument 2021 (the instrument) is to enable Regional Express Pty Ltd (Rex) to carry on its aircraft children with a serious medical condition without them having to occupy their own seat. A child must be at least 2 years old and not more than 12 years old, weigh less than 16 kg and be prevented by the medical condition from sitting upright unaided.
The instrument gives a direction under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR) that paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) does not apply to such a seriously ill child, to the extent that the child is required to occupy a seat on the aircraft during a flight. The instrument also exempts Rex from compliance with subregulation 235 (7A) of CAR and the pilot in command of the aircraft, during a flight, from compliance with subregulation 235 (8) of CAR, to the same extent. (Paragraph 3.1 of CAO 20.16.3 requires all passengers and crew members to occupy a seat of an approved type on an aircraft during specified circumstances on a flight.)
Conditions are imposed on Rex’s exemption, including that Rex must ensure that, when seat belts must be worn by passengers during a flight (e.g. during take-off and landing), the child sits on an accompanying adult’s lap and wears an infant seat belt as a restraint.
Other directions are given to Rex under the instrument. These include that Rex must ensure its operations manual includes procedures for the carriage of seriously ill children.
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 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, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations or a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant 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.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Under regulation 215 of CAR, CASA may give directions requiring an operator to include particular information, procedures and instructions in the operator’s operations manual. Under subregulation 215 (3A), it is an offence to contravene a direction. Also, under subregulation 215 (9), the operations personnel of the operator must comply with all instructions contained in the operations manual that apply to their activities.
Under subregulation 235 (7) of CAR, CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading of persons and goods (including fuel) on aircraft.
Subregulation 235 (7A) of CAR provides that it is an offence if a person contravenes a direction under subregulation 235 (7) of CAR. Subregulation 235 (8) of CAR provides that it is an offence if the pilot in command of an aircraft allows the aircraft to take off or land if a direction given under regulation 235, about the loading of the aircraft, has not been complied with.
CAO 20.16.3 was made under regulations 207 and 235 of CAR. Paragraph 3.1 of CAO 20.16.3 provides that each crew member and each passenger shall occupy a seat of an approved type during take-off and landing, during an instrument approach, when the aircraft is flying at a height less than 1 000 feet above the terrain and in turbulent conditions. This requirement does not apply to children and other specified persons in specified circumstances, none of which apply in this case.
Under subregulation 251 (1) of CAR, subject to subregulation 251 (2), it is an offence of strict liability for crew members and passengers not to wear seat belts during take-off and landing, during an instrument approach, when the aircraft is flying at a height of less than 1 000 feet above the terrain and at all times in turbulent conditions.
Background
CASA has previously issued instruments CASA EX178/15 and CASA EX123/19 enabling the carriage by Rex of individual children with a serious medical condition that prevented the child from sitting upright unaided and occupying their own seat.
Relevant serious medical conditions are those associated with delayed growth and development, including those involving low muscle tone (hypotonia). Like other children, these children may need to be flown in passenger aircraft for many reasons, for example, to access family, hospitals or other medical treatment.
It is anticipated that this instrument will not need to be renewed as CASA proposes that amendments be made to the Part 91 (General Operating and Flight Rules) Manual of Standards 2020 (Part 91 MOS) before the Part 91 MOS commences that will provide for the carriage of these seriously ill children. The Part 91 MOS commences immediately after commencement of Part 91 of CASR. Part 91 of CASR is contained in the Civil Aviation Safety Amendment (Part 91) Amendment Regulations 2018. Section 2 of those regulations state that they are to commence on 2 December 2021.
Overview of instrument
The instrument applies in relation to the carriage of a relevant child on a flight of an aircraft operated by Rex if Rex has sighted a medical certificate to the effect that the relevant child has a serious medical condition that prevents the relevant child from sitting upright unaided and is fit to travel, and Rex is satisfied, on reasonable grounds, that the relevant child weighs less than 16 kg.
A relevant child is defined in the instrument as a person who is at least 2 years old and not more than 12 years old, and has a serious medical condition.
The instrument gives a direction under subregulation 235 (7) of CAR that paragraph 3.1 of CAO 20.16.3 does not apply to the child.
The instrument exempts Rex from compliance with subregulation 235 (7A) of CAR to the extent that the child is required to occupy a seat on the aircraft during a flight in accordance with paragraph 3.1 of CAO 20.16.3. The instrument also exempts the pilot in command, during a flight, from compliance with subregulation 235 (8) to the same extent. Conditions are imposed on the exemption for Rex that provide for the safety of the child.
The instrument gives a direction for paragraph 215 (3) (a) of CAR that Rex must ensure that its operations manual includes procedures for the carriage of a relevant child on its aircraft and a copy of the instrument. A direction is also given under regulation 11.245 of CASR that Rex may amend a part of its operations manual that relates to the carriage of a relevant child only if the amendment has been approved in writing by CASA.
The directions and exemptions apply in relation to all aircraft types in Rex’s fleet, as approved in Rex’s Air Operator’s Certificate and covered by the procedures in Rex’s operations manual.
CASA has assessed the operator’s case for the issue of the instrument and considers that issuing the instrument will have no impact on the safety of Rex’s operations. Rex has conducted a risk assessment on the safety and corporate implications of carrying children in these circumstances, and the risk severity was deemed very low. Also, Rex has obtained operating experience during the maintenance of the previous exemptions granted in relation to the carriage of individual children (CASA EX178/15 and CASA EX123/19).
The instrument does not incorporate any documents by reference.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on the day after it is registered and is repealed immediately after the earlier of the following:
(a) the commencement of Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021;
(b) the end of 31 May 2024.
Section 3 sets out definitions for the instrument. Infant seat belt is defined, for a relevant child, as a webbed supplemental loop belt that consists of 2 loops of webbing and is attached to the seat belt of the adult accompanying the relevant child by the passing of the adult seat belt through 1 of the loops.
A note below this definition provides that further information regarding supplemental loop belts can be found in the Civil Aviation Advisory Publication CAAP 235-2 (2) Carriage and restraint of small children in aircraft, as it exists from time to time.
Section 4 sets out the application of the instrument. See under the heading Overview of instrument. For the instrument to apply, Rex must sight a medical certificate with specified information about the child and be satisfied, on reasonable grounds, that the child weighs less than 16 kg. An example of reasonable grounds would be a recent medical certificate that sets out the weight of the child.
Section 5 provides a direction under subregulation 235 (7) of CAR that paragraph 3.1 of CAO 20.16.3 does not apply to the relevant child, to the extent that the relevant child is required to occupy a seat on the aircraft during a flight.
Section 6 provides an exemption for Rex from compliance with subregulation 235 (7A) of CAR, to the extent that the relevant child is required to occupy a seat on the aircraft during a flight in accordance with paragraph 3.1 of CAO 20.16.3. It also sets out a similar exemption for the pilot in command of the aircraft, during a flight.
Section 7 sets out the conditions imposed on the exemption for Rex. In summary, the conditions are that Rex must ensure that relevant crew members are informed about the child’s carriage and medical condition, and that when seat belts are worn by passengers in the circumstances mentioned in subregulation 251 (1) of CAR, the child sits on an accompanying adult’s lap, and wears an infant seat belt as a restraint.
Two notes are inserted after section 7. Note 1 states that the accompanying adult must wear a seat belt in these circumstances. Note 2 states that subsection 14 of CAO 20.16.3 sets out other requirements that apply to aircraft operators in relation to passengers who require assistance due to sickness, injury, or disability.
Section 8 sets out directions relating to Rex’s operations manual. The direction in subsection 8 (1) is made under paragraph 215 (3) (a) of CAR and provides that Rex must include in its operations manual procedures for the carriage of relevant children on its aircraft and a copy of this instrument. The direction in subsection 8 (2) is made under regulation 11.245 of CASR and provides that Rex may amend a part of its operations manual relating to the carriage of a relevant child only if the amendment has been approved in writing by CASA. A note under subsection 8 (2) is included for regulation 11.250 of CASR.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (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 applies in relation to persons who are at least 2 years old and not more than 12 years old, weighs less than 16 kg, and have a serious medical condition. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument has been issued on application by Rex. CASA provided Rex with a copy of the draft instrument for comment in July 2021 and Rex advised that it had no comments to make in relation to the instrument.
The instrument continues existing arrangements under which Rex has carried seriously ill children under similar instruments relating to individual children, and no concerns have been raised with CASA regarding the carriage of any child under these arrangements. The carriage of seriously ill children by operators under these arrangements seems accepted by industry.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The economic and cost impact of the instrument has been determined by:
(a) the identification of individuals and the businesses affected by the instrument;
(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements;
(c) a valuation of the impact, in terms of direct costs on individuals and businesses affected by the instrument to comply with the different requirements. This valuation is consistent with the principles of best practice regulation of the Australian Government;
(d) a valuation of the impact the different requirements would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly; and
(e) community impacts, beyond those direct impacts on individuals and businesses affected by the instrument, that are relevant if the instrument were to result in flow‑on effects to other aviation businesses, or local non-aviation businesses that experience a change in their activity due to the instrument.
Rex will be affected by this instrument as the instrument requires Rex to sight medical certificates and include in its operating manual procedures for the carriage of seriously ill children. However, Rex already has such procedures in place and is the applicant for the instrument. Carers of seriously ill children may also be affected by the instrument as they would need to obtain a medical certificate relating to the child before travel. However, carers would benefit from the instrument as it enables any such children in their care to be carried on Rex’s aircraft for purposes such as seeing extended family or obtaining medical care.
CASA has assessed that the economic and cost impact of the instrument is not significant. As there is no significant economic or cost impact on individuals or businesses, there will be no community impacts.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions and directions (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.
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, and is repealed immediately after the earlier of the following:
(a) the commencement of Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021;
(b) 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 EX79/21 — Carriage of Children with a Serious Medical Condition (Regional Express) Instrument 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
This legislative instrument allows children with serious medical conditions who cannot sit upright unaided to be carried on aircraft operated by Regional Express Pty Ltd (Rex) without them having to occupy their own seat. A child must be at least 2 years old and not more than 12 years old, weigh less than 16 kg and be prevented by the medical condition from sitting upright unaided.
The instrument includes a direction under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR) that paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) does not apply to a relevant child, to the extent that the child is required to occupy a seat on the aircraft during a flight. The instrument also exempts Rex from compliance with subregulation 235 (7A) of CAR and the pilot in command of the aircraft, during a flight, from compliance with subregulation 235 (8) of CAR, to the extent that such a child is required to occupy a seat on the aircraft during the flight in accordance with paragraph 3.1 of CAO 20.16.3. (Paragraph 3.1 of CAO 20.16.3 requires all passengers and crew members to occupy a seat of an approved type on an aircraft during specified circumstances on a flight.)
Conditions are imposed on Rex’s exemption. In summary, these conditions are that Rex must ensure that all relevant crew members are informed about the child’s carriage and medical condition and that, when seat belts must be worn by passengers during a flight (e.g. during take‑off and landing), the child sits on an accompanying adult’s lap and wears an infant seat belt as a restraint.
The Civil Aviation Safety Authority also gives some directions to Rex under the instrument. These include that Rex must ensure its operations manual includes procedures for the carriage of seriously ill children.
Human rights implications
This legislative instrument engages positively with the rights of children with disabilities by protecting their right to access air transportation. Any risks involved by not requiring them to be in their own seat during specified times are mitigated by requirements imposed on Rex aimed at protecting their safety.
Conclusion
This legislative instrument promotes the protection of human rights as it enables children with certain disabilities to access air transportation.
Civil Aviation Safety Authority