Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX92/18 — Carriage of Children with a Serious Medical Condition (Virgin Australia International Airlines) Instrument 2018
Purpose
The purpose of this instrument is to enable Virgin Australia International Airlines Pty Ltd (VAIA) to carry on its aircraft children who have serious medical conditions without them having to occupy their own seat and use the kind of seat belt worn by other passengers. 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 exempts these children from the requirement in subregulation 251 (1) of the Civil Aviation Regulations 1988 (CAR) to wear seat belts in certain circumstances during flight, and includes CASA directions to VAIA that are designed to ensure a child’s safety, including a direction that VAIA must ensure that each child wears an approved infant seat belt as a restraint whilst sitting on an accompanying adult’s lap.
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 CAR.
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. Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Subregulation 11.175 (4) of CASR provides that in deciding whether to renew an exemption, on application by a person, 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 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.
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.
Background
In mid-2014, VAIA was granted an exemption (CASA EX46/14) from subregulation 251 (1) of CAR that allowed the operator to carry, in VAIA’s B737, A330 and E190 type aircraft, children over 2 years of age who weighed under 16 kilograms and who suffered from a serious medical condition that prevented them from sitting upright unaided. In 2015, VAIA and these children were granted a similar exemption (CASA EX132/15) that specified that the child must be carried in a Boeing 737 NG aircraft or Boeing 777 series aircraft. Instrument CASA EX132/15 expires at the end of July 2018.
A further exemption is necessary so that VAIA can carry children suffering from serious medical conditions who cannot wear adult seat belts. 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.
Overview of instrument
This instrument exempts a relevant child, who is flying in an aircraft operated by VAIA, from the requirement in subregulation 251 (1) of CAR for a passenger to wear the kind of seat belt that must be worn during take-off and landing, during an instrument approach, when the aircraft is flying at less than 1,000 feet and during turbulent conditions. Instead, the child must wear an approved infant seat belt as a restraint and sit in an accompanying adult’s lap. Relevant child is defined in the instrument as meaning a person who is at least 2 years old and not more than 12 years old, who has a serious medical condition preventing the child from sitting upright unaided and who VAIA is satisfied on reasonable grounds weighs less than 16 kg and is fit to travel.
The instrument also exempts VAIA from the requirement in subregulation 251 (5) of CAR that operators must detail a member of the crew to ensure that a seat belt or safety harness is worn by each occupant of the aircraft during the specified times and is adjusted to fit without slack. As the child will not be wearing a seat belt in these times, VAIA requires an exemption from this provision.
The exemptions apply in relation to all aircraft types in VAIA’s fleet, as approved in VAIA’s Air Operator’s Certificate and covered by the procedures in VAIA’s operations manual.
The instrument also includes directions issued by CASA to VAIA in the interests of the safety of air navigation. The directions include that VAIA must ensure that its operations manual includes procedures for the carriage of relevant children on its aircraft, and that a medical practitioner provides a statement regarding the child’s medical condition. VAIA may refer to this statement when deciding, for the definition of relevant child, if it is satisfied on reasonable grounds that the child weighs less than 16 kg and is fit to travel.
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 the operator’s operations.
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 1 August 2018 and is repealed at the end of 31 July 2021. The repeal provision states when directions cease to be in force for regulation 11.250 of CASR.
Section 3 sets out some definitions for the instrument, including relevant child.
Section 4 provides an exemption for a relevant child from compliance with subregulation 251 (1) of CAR, and for VAIA from compliance with subregulation 251 (5) of CAR to the extent that it requires VAIA to detail a crew member to ensure that a seat belt or safety harness is worn by a relevant child and adjusted to fit without slack during the times specified in subregulation 251 (1) of CAR.
Section 5 provides directions to VAIA that relate to the exemption. The directions made under regulation 11.245 of CASR are: that VAIA must ensure that a medical practitioner provides a statement regarding the child’s medical condition that includes specified matters, such as the weight of the child and that the child is fit to travel, that VAIA must ensure that all staff who may be in contact with the child are informed about the child and his or her medical condition, and that the relevant child sits in an accompanying adult’s lap and wears an approved infant seat belt as a restraint when other passengers must wear seat belts.
The directions made under paragraph 215 (3) (a) of CAR are that VAIA must ensure that its operations manual includes both procedures for the carriage of relevant children on its aircraft and a copy of this instrument.
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 is expressed to apply to a class of persons as it exempts from a requirement of CAR children who are at least 2 years old who 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
This instrument has been issued at the request of VAIA, and replaces CASA EX46/14 and CASA EX132/15 that were issued for the same purpose. Before CASA EX46/14 was issued, VAIA conducted an initial risk assessment on the safety and corporate implications of carrying children, and the risk severity was found to be very low in each case. Also, during the assessment of this application, CASA sought further information from VAIA in support of the application. Having consulted with VAIA in relation to its request, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the primary reason for the instrument is to provide an exemption and it is therefore covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions or 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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 1 August 2018 and ceases to be in force when it is repealed at the end of 31 July 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX92/18 — Carriage of Children with a Serious Medical Condition (Virgin Australia International Airlines) 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
This legislative instrument allows children who have a serious medical condition that prevents them from sitting upright unaided to be carried on aircraft operated by Virgin Australia International Airlines (VAIA) without wearing a seat belt of the kind worn by other passengers at those times when the Civil Aviation Regulations 1988 require passengers to wear a seat belt. The instrument includes directions to VAIA that are issued in the interests of aviation safety, including that a child must instead be restrained by an approved infant seat belt while sitting in an accompanying adult’s lap.
Human rights implications
This legislative instrument engages positively with the rights of children with disabilities by protecting their right to access air transportation. The risks of exempting these children from wearing a seat belt at specified times is mitigated by the directions given to VAIA 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