Part 138 MOS Amendment Instrument 2023 (No. 1)

Explanatory Statement

Acts Interpretation Act 1901

Civil Aviation Safety Regulations 1998

Purpose

The Part 138 MOS Amendment Instrument 2023 (No. 1) (the MOS amendment) amends the Part 138 (Aerial Work Operations) Manual of Standards 2020 (the MOS).

The MOS, which commenced on 2 December 2021, sets out the operational, procedural and safety risk management standards for the conduct of aerial work operations in aeroplanes and rotorcraft. The MOS was made under regulation 138.020 of Part 138 of the Civil Aviation Safety Regulations 1998 (CASR). It contains rules relating to aerial work which were in force before the commencement of Part 138 of CASR, and also some new rules to enhance operational flexibility and improve aviation safety.

The MOS amendment is necessary to make a small number of related minor or machinery amendments to the MOS. Their purpose is to restore to certain aerial work operators the possibility of conducting rappelling, and to make other amendments of an editorial nature.

Rappelling in aerial work operations is a form of Class D external load operation — that is, an operation in which the external load is a person. Rappelling is defined in subsection 1.04 (6) of the Part 138 MOS as any of the following:

(a) a person lowering themselves from an airborne rotorcraft by going down a line hanging from the rotorcraft;

(b) a person being lowered from an airborne rotorcraft by controlled release from the rotorcraft of a line to which the person is securely attached;

(c) a person lowering themselves down a line hanging from an airborne rotorcraft, with descent of the person controlled by a person on the ground;

(d) a person coming down from, or going up to, an airborne rotorcraft by using a flexible ladder hanging from the rotorcraft.

The option of conducting permitted rappelling had been available before 2 December 2021 under Civil Aviation Order 29.11, but when Part 138 of CASR was made it only allowed for emergency service operations (ESO) to carry out rappelling, and not for other aerial work operators with a relevant rappelling approval.

The MOS amendment rectifies this by, in effect, removing the limitation under which only ESO could conduct rappelling. It makes corrections to ensure the consistent use of the defined term rappelling. It clarifies what is necessary in an application for Civil Aviation Safety Authority (CASA) approval of an external load operation. It adds some explanatory Notes, in particular explaining that the initial conduct of rappelling constitutes a significant change for which an operator must have CASA approval as required under subparagraph 138.012 (a) (vii) of CASR.

In making these changes, the MOS amendment does not substantially alter the existing regulatory arrangements as applied or understood.

Legislation

The Civil Aviation Act 1988 (the Act) establishes the regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

Subsection 98 (1) of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. CASR are made under the Act.

Under regulation 138.020 of CASR, CASA may issue a Manual of Standards for Part 138 of CASR that prescribes matters required or permitted by that Part to be prescribed, or necessary or convenient for carrying out or giving effect to Part 138. This power is complemented by other provisions throughout Part 138 which empower CASA to prescribe specific matters in the MOS.

Under regulation 138.410 of CASR, the MOS is empowered to prescribe requirements relating to flights of aircraft involving external load operations.

Under regulation 201.025 of CASR, for subsection 98 (5A) of the Act, CASA may issue instruments prescribing matters for definitions in the regulations relating to matters mentioned in the subsection (the subsection empowers regulations which in turn empower the issue of instruments for, in effect, aviation safety).

Under subsection 33 (3) of the Acts Interpretation Act 1901 (in effect) where regulations empower the making of a MOS, the power includes a parallel power to amend the MOS. The MOS amendment is made under the same head of power, and on the same basis, as the MOS itself.

For convenience in this Explanatory Statement, unless a contrary intention appears, mention of a provision with the prefix “138.” is a reference to that provision in Part 138 of CASR.

The MOS amendment

More details about these minor or machinery MOS amendments are set out in Appendix 1 of this Explanatory Statement.

Aviation safety

Under subsection 9A (1) of the Act, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

The MOS amendment reinstates the possibility that non-ESO aerial work operators might, with relevant “significant change” approval, conduct rappelling. CASA considers that the circumstances, risk assessments, required advanced training, operations manual changes, and approvals required before this may occur are such as to ensure that an acceptable level of aviation safety is preserved by the MOS amendment.

Legislation Act 2003 (the LA)

Under subsection 8 (4) of the LA, an instrument is a legislative instrument if it is made under a power delegated by the Parliament, and any provision determines the law or alters the content of the law, and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. The MOS satisfied these requirements and was a legislative instrument. Under paragraph 10 (1) (d) of the LA, for subsection 8 (5), an instrument that amends a legislative instrument is also itself a legislative instrument. Consequently, the MOS amendment is a legislative instrument.

Under paragraphs 98 (5A) (a) and (5AA) (a) of the Act, an instrument made under regulations is a legislative instrument if it is issued in relation to matters affecting the safe navigation and operation of aircraft, and is expressed to apply to classes of persons.

On each of these criteria, the MOS is a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA. The same provisions and conclusions apply to the MOS amendment.

Sunsetting

As the MOS amendment relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. As such, the MOS amendment is, prima facie, intended to have enduring operation and it would not be appropriate for it to be subject to sunsetting.

The exemption from the sunsetting provisions affects parliamentary oversight by not requiring the MOS amendment to be remade at the end of the sunsetting period (remaking would have the effect that the whole instrument must be retabled and would become subject to disallowance in the Parliament under sections 38 and 42 of the LA). However, amendment instruments are generally spent as soon as the amendments they contain take effect. Also, it is likely that, before the end of the nominal sunsetting time, the MOS will be further amended and, like the present MOS amendment, such instruments will be subject to tabling and disallowance in the Parliament in the normal way. The sunsetting exclusion, therefore, causes no practical diminution of parliamentary oversight.

Incorporations by reference

Under subsection 98 (5D) of the Act, the MOS may apply, adopt or incorporate any matter contained in any instrument or other writing. A non-legislative instrument may be incorporated into a legislative instrument made under the Act, as that non-legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).

Under paragraph15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained. A Table was included in the Explanatory Statement for the MOS listing and explaining the various incorporated documents.

The MOS amendment refers to the following which, when brought into existence, may be considered to be documents applied, adopted or incorporated into the MOS:

an operator’s advanced operational training in rappelling
an operator’s detailed risk assessment and mitigation processes for a rappelling operation
an operator’s proposed operations manual content for a rappelling operation
an operator’s proposed training and checking manual content for a rappelling operation.

The nature of these operational documents is self-explanatory from their names. The requirements set out in the documents are at the operator-specific level and will apply only to the operator and its personnel. The operator is under obligations to make the contents of each of the documents available to its personnel who have obligations under the document.

It is most unlikely that any of the documents would be a document that is publicly or freely available. Each document and its specialised contents would be proprietary to the operator who owns its intellectual property and each would generally include commercial-in-confidence information about the operator’s business and operations.

However, CASA will, as far as practicable, make arrangements with any willing relevant operator to make a suitably redacted copy of any particular documents available for requested inspection by appointment at a relevant CASA office.

Consultation

Under regulation 11.280 in Subpart 11.J of CASR, if CASA intends to issue a MOS, CASA must, in effect, engage in public consultation on the draft MOS. This requirement also applies to a MOS amendment.

However, under paragraph 11.275 (1) (d), CASA is not obliged to consult if the Director of Aviation Safety (the Director) determines that the MOS is of a minor or machinery nature that does not substantially alter existing arrangements. In such circumstances, under subregulation 11.275 (2), CASA must publish the determination, and a statement of reasons for it, on the internet within 28 days after making the determination.

The purpose of the MOS amendment is to make a small number of related modifications to the MOS which do not substantially alter the existing arrangements as in place or understood. They are, therefore, considered to be of a minor or machinery nature. Consequently, the Director has made a relevant determination (CASA 20/23) that consultation is not required. The determination with a statement of reasons for it are on the CASA website.

There has, nevertheless, been informal consultation in the sense that the amendments have arisen from feedback from the aviation industry to CASA about the discrepancy between the pre- and post-2 December 2021 positions and the need for remediation of that.

Office Impact Analysis

An Impact Analysis (IA) was prepared by CASA for the new Part 138 (in the form of the then utilised Regulatory Impact Statement or RIS) and this RIS also covered the MOS and the MOS amendment which the regulations empowered. The RIS was assessed by the Office of Best Practice Regulation (OBPR) as compliant with the Best Practice Regulation requirements and contained a level of analysis commensurate with the likely impacts (OBPR id: 24505). A copy of the RIS was included in the Explanatory Statement for Part 138: Civil Aviation Safety Amendment (Part 138) Regulations 2018 (legislation.gov.au).

In this context, and given the minor or machinery stairs of the amendments, a further IA is not required.

Sector risk, economic and cost impact

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.

In terms of economic and cost impacts for subsection 9A (3) of the Act, by broadening the scope for approved rappelling, the MOS amendment removes an obstruction to commercial operations which were possible pre-2 December 2021. It thus brings the MOS more closely into alignment with its original purpose and intent, and meets the agreed expectations of relevant sectors of the aviation industry whose participants were consulted before it was made.

Thus, the MOS amendment will not have the effect of increasing any cost burdens and is likely to have the effect of lowering some costs for industry that might otherwise have arisen, for example, removing the need for exemptions in relation to matters for which some rules are modified in line with previous expectations during consultation.

Sector risk

The MOS is specifically designed to regulate aerial work operations and has effect only with respect to such operations. The MOS amendment, like the MOS, takes into account the differing risks associated with this industry sector. However, as such, it does not increase any particular sector costs or safety risks.

Rural and regional impacts

The Minister’s Statement of Expectations for the CASA Board states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”.

The MOS amendment does not give rise to any identified rural and regional impacts that differ in any material way from the more general economic and cost impacts, or sector risks described above.

Environmental impact

Under subsection 9A (2) of the Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.

It is not anticipated there will be any specific negative environmental impacts as a result of the MOS amendment as compared to the baseline that existed on 1 December 2021, since the instrument is designed to correct and clarify rules in line with the original purpose, intent and expectations of the MOS.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Appendix 2. This concludes that the MOS amendment, as a set of minor or machinery amendments, is compatible with human rights.

Commencement and making

The MOS amendment commences on 27 March 2023.

The MOS amendment has been made by the Director, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

Appendix 1

Details of the Part 138 MOS Amendment Instrument 2023 (No. 1)

1 Name of instrument

This section provides for the naming of the Part 138 MOS Amendment Instrument 2023 (No. 1) (the MOS amendment).

2 Commencement

This section provides for the commencement of the MOS amendment on 27 March 2023.

3 Amendment of the Part 138 Manual of Standards

This section provides that Schedule 1 amends the Part 138 (Aerial Work Operations) Manual of Standards 2020.

Schedule 1 Amendments

[1] Subsection 14.02 (4)

This amendment is consequential on the definition of rappelling and allows consistent use of the term.

[2] Section 15.01, the Note

The amendment adds a new Note explaining that it is a significant change requiring CASA approval for an operator to begin any kind of class D external load operation for the first time, whether it involves winching, a belly hook, a platform, rappelling, or a hover entry/exit).

[3] Subsection 15.06 (6)

This amendment removes the previous constraint which limited rappelling to emergency service operations. It now provides that for a Class D external load operation, that involves rappelling, the operator and the pilot in command must ensure that the operation is conducted by personnel who have successfully completed the operator’s advanced operational training in rappelling; or that is for the purpose of training personnel for such an operation.

[4] After section 15.07

This amendment inserts a guidance Note to explain that under subsection 15.09 (2), external load operations may be conducted over a populous area or a public gathering.

[5] Section 15.09, the heading

This amendment inserts a more suitable section heading.

[6] Subsection 15.09 (4)

This section clarifies the requirements for an application for written approval to conduct a Class C external load operation (one not involving a person but where the load remains in contact with the ground), or a Class E external load operation (one involving an aeroplane). The application must be accompanied by the operator’s detailed risk assessment and mitigation processes; and include the operator’s proposed operations manual content (and applicable training and checking manual content), with the operational procedures to enable compliance with the relevant requirements for external loads.

A Note explains that aerial work certificate holders who are required to have a formal training and checking system under regulation 138.125 of CASR must have a training and checking manual. Other aerial work certificate holders may choose to include their training and checking requirements in a separate training and checking manual, or in their operations manual.

Appendix 2

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

Part 138 MOS Amendment Instrument 2023 (No. 1)

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 Part 138 MOS Amendment Instrument 2023 (No. 1) (the MOS amendment) amends the Part 138 (Aerial Work Operations) Manual of Standards 2020 (the MOS).

(a) a person lowering themselves from an airborne rotorcraft by going down a line hanging from the rotorcraft;

(b) a person being lowered from an airborne rotorcraft by controlled release from the rotorcraft of a line to which the person is securely attached;

(c) a person lowering themselves down a line hanging from an airborne rotorcraft, with descent of the person controlled by a person on the ground;

(d) a person coming down from, or going up to, an airborne rotorcraft by using a flexible ladder hanging from the rotorcraft.

In making these changes, the MOS amendment does not substantially alter the existing regulatory arrangements as applied or understood.

Human rights implications

When it was made, the Explanatory Statement for the MOS explained that, of their very nature in addressing aviation safety issues, its provisions may engage the following human rights:

the right to life under Article 6 and the right to privacy and reputation under Article 17 of the International Covenant on Civil and Political Rights (the ICCPR)
the right to work under Article 6 (1) and the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR).

That earlier Explanatory Statement concluded that the MOS was a legislative instrument that was compatible with human rights and, to the extent that it may also limit human rights, the limitations were reasonable, necessary and proportionate to ensure the safety and the integrity of the aviation safety system upon which all aviation operations rely.

The MOS amendment is also a legislative instrument but it contains only minor or machinery amendments as explained above, and these do not, of themselves, directly engage human rights, nor do they increase any engagement with human rights already recorded in the earlier Explanatory Statement. The instrument is, in itself, therefore, compatible with human rights.

Conclusion

The MOS is a legislative instrument that is compatible with human rights.

Civil Aviation Safety Authority

Part 138 MOS Amendment Instrument 2023 (No. 1)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Explanatory Statement

Acts Interpretation Act 1901

Civil Aviation Safety Regulations 1998