EXPLANATORY STATEMENT

ATTACHMENT A

 

 

Statement of Compatibility with Human Rights

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

 

Civil Aviation Safety Amendment (Part 90) Regulation 2017

 

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 Disallowable Legislative Instrument

The proposed Regulation would make various amendments to the Civil Aviation Safety Regulations 1998 (CASR). The majority of changes would be minor amendments to terminology to enhance consistency with other parts of the CASR and to improve understanding.

In addition to these minor amendments, the proposed Regulation would remove the need for some operators to apply for an exemption in order for certain seats in certain aircraft to be fitted with a single shoulder safety harness instead of a symmetrical shoulder harness. The proposed Regulation would also ensure that the regulations reflect that aircraft seats are not the only item of equipment that may potentially block an emergency exit, with the proposed Regulation to recognise other items such as stretchers on aeromedical aircraft.

Finally, the proposed Regulation would expand the head of power for the Part 90 Manual of Standards, which would allow CASA to ban certain fire extinguishing agents being used in aircraft fire extinguishing system. This permits CASA to meet its ICAO obligations with respect to high Ozone Depleting Potential (ODP) substances listed in the Montreal Protocol.

Human rights implications

This Disallowable Legislative Instrument engages the right to the presumption of innocence in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

Presumption of Innocence

The presumption of innocence imposes on the prosecution the burden of proving the charge, and guarantees that no guilt can be presumed until charges have been proved beyond reasonable doubt.

Strict liability offences engage the presumption of innocence through the imposition of liability without the need to prove fault.

One offence provision specified in this legislative instrument is a strict liability offence. This offence engages the right to the presumption of innocence by applying strict liability to all elements of the relevant offences. However, the defence of honest and reasonable mistake of fact, as set out in section 9.2 of the Criminal Code, will be available to the defendant.

Regulation 90.150 specifies an offence that relates to any operator of an aircraft mentioned in the Part 90 Manual of Standards operating an aircraft that has a banned fire extinguishing agent in specified fire extinguishing systems.

Limitations on rights need to be prescribed by law, in pursuit of a legitimate objective, be rationally connected to the objective, and be reasonable, necessary and proportionate.

To the extent the imposition of strict liability offences in the amendments limits the right to be presumed innocent, this limitation is necessary to ensure that firefighting equipment used on aircraft is not detrimental to the health of crew, passengers or the general public.

The strict liability offences in the proposed Regulation are considered justified and therefore not inconsistent with the presumption of innocence, in that they are regulatory in nature, meaning that there is an expectation that individuals who participate in the aviation sector have accepted certain conditions, particularly where activities carry public safety risks. The offence relates to administrative and safety requirements that must be adhered to by regulated individuals, operators or organisations involved in the aviation industry to ensure the integrity of the aviation safety system.

These amendments are consistent with the right to presumption of innocence because they are aimed at the legitimate objective of ensuring safety of air navigation in Australia and its territories, and the safety and integrity of the aviation industry and the public. Further, these amendments are reasonable, necessary and proportionate in achieving this objective.

Conclusion

The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

 

 

 

ATTACHMENT B

 

Details of the Civil Aviation Safety Amendment (Part 90) Regulations 2017

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulations is the Civil Aviation Safety Amendment (Part 90) Regulations 2017.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Civil Aviation Act 1988.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to the instrument will be amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument will have effect according to its terms.

 

 

Schedule 1 - Amendments

 

Civil Aviation Safety Regulations 1998

 

Item [1] After regulation 90.005

 

Item [1] inserts a new regulation 90.007 to explain the intent of the application of Part 90 of CASR by clarifying that if a requirement in Part 90 is also addressed by an applicable requirement in another regulation of the Civil Aviation Regulations 1988 (CAR) or CASR, then the more stringent requirement prevails.

 

Item [2] Subregulation 90.020(1)

 

Item [2] repeals, for consistency with other CASR Parts, the existing subregulation and substitutes a new subregulation 90.020(1) to provide a head of power for matters to be prescribed in the Part 90 Manual of Standards (MOS).

 

Item [3] Subregulation 90.020(2)

 

Item [3] inserts 'matters relating to the airworthiness of, or design standards for, aircraft, including' after 'set out' to align with terminology used in other CASR parts.

 

Item [4] Subregulations 90.105(2) and (3)

 

Item [4] omits 'equipped' and substitutes 'fitted' to clarify that the requirement in these subregulations relates to a fixed installation rather than a temporary or portable one. This aligns the terminology with that used in other CASR Parts.

 

Item [5] At the end of subregulation 90.105(4)

 

Item [5] inserts a new paragraph 90.105(4)(c) to prescribe that, for aircraft types listed in the applicable regulation of the Part 90 MOS, it is permissible for any observer's seat in the cockpit to be fitted with a single shoulder strap harness. This amendment will reduce the number of routine exclusions issued by CASA under regulation 90.010 of CASR to operators of certain aircraft.

 

Item [6] Subregulation 90.110(3)

 

Item [6] inserts '(other than a side-facing seat)' after 'A seat', as regulation 90.120 separately considers the unique attributes and associated requirements of side-facing seats.

 

Item [7] Paragraph 90.120(1)(b)

 

Item [7] omits reference to 'subregulation (2)' and substitutes with 'this regulation' to ensure that the change that made by Item [6] is interpreted correctly.

 

Item [8] Subregulation 90.120(2)

 

Item [8] omits 'A side-facing seat in the aircraft must be equipped' and substitutes with 'In the aircraft, a side-facing seat that is to be used during take-off or landing must be fitted' to exclude from the prescribed occupant restraint requirements those seats that are only used in-flight and not intended for use during take-off and landing, such as search and rescue observer seats and airline lounge chairs.

 

Item [9] After subregulation 90.120(2)

 

Item [9] inserts a new subregulation 90.120(2A) to provide that a side-facing seat must not be used during take-off or landing if it is not fitted with an approved lap belt or approved safety harness as mentioned in subregulation 90.120(2). It also provides that the seat must carry a placard to this effect. This provision removes the requirement for prescribed occupant restraints to be fitted to seats that are only used in-flight, such as search and rescue observer seats and airline lounge chairs.

 

Item [10] Paragraph 90.125(1)(b)

 

Item [10] repeals the existing paragraph and substitutes a new paragraph to clarify that the seat and related equipment that must meet the standards specified in the Part 90 MOS are the cabin crew seat and any related equipment. This clarification helps to avoid confusion about the requirements that apply if a cabin crew member sits in another seat, such as a passenger seat, by recognising that the requirements in the Part 90 MOS would not apply in that situation.

 

Item [11] Before subregulation 90.130(1)

 

Item [11] inserts a new subregulation 90.130(1A) to clarify that the emergency exit requirements prescribed in regulation 90.130 do not apply to doors that are only used for cargo.

 

Item [12] Subregulation 90.135(2)

 

Item [12] omits 'unobstructed access to at least 1 emergency exit' and substitutes 'access to at least 1 emergency exit that meets the requirements prescribed by the Part 90 Manual of Standards' to clarify that the emergency exit must comply with the technical standards prescribed in the Part 90 MOS for the applicable class of aircraft.

 

Item [13] Paragraph 90.135(6)(a)

 

Item [13] inserts 'self-illuminated or' after 'must be' to clarify that the lighting requirement can be met by the instructions being self-illuminated, and does not need to be met by some form of separate cast lighting source as long as the emergency exit instructions are readable in darkness.

 

Item [14] Paragraph 90.135(6)(b)

 

Item [14] repeals the paragraph and substitutes a new paragraph 90.135(6)(b) to clarify any misconception that seats are the only item of equipment that may potentially block an emergency exit. This is particularly an issue for aeromedical aircraft and business jets. The new paragraph makes clear that the requirement applies to any item of equipment including 'stretchers or other items of equipment'. Additionally it now recognises other potentially conflicting provisions in regulation 90.215 around emergency exits that apply to other categories of aircraft.

 

Item [15] Paragraph 90.140(2)(b)

 

Item [15] omits the term 'insulated' and substitutes the term 'designed'. This provision prescribes requirements for protecting cargo or baggage from damage caused by excessive heat emitted by light sources. It clarifies that excessive heat transfer can be prevented by means other than insulation, such as use of a cool light source, separation from baggage and cargo, and improved ventilation.

 

Item [16] At the end of Subpart 90.B

 

Item [16] adds a new regulation 90.150, including subregulations 90.150(1) and 90.150(2).

 

Subregulation 90.150(1) provides that a registered operator commits an offence if they operate, or allow another person to operate, an aircraft regulated by Subpart 90.B and that aircraft carries or is fitted with a fire extinguisher that contains a proscribed agent, as specified in the Part 90 MOS. This amendment allows CASA to meet its ICAO obligations to prohibit the use of high ozone depleting potential (ODP) substances that are listed in the Montreal Protocol on Substances that Deplete the Ozone Layer. The penalty for the offence has been set at 50 penalty units.

 

Subregulation 90.150(2) provides that contravention of subregulation 90.150(1) is an offence of strict liability.

 

Item [17] Subregulation 90.205(2)

Item [17] omits 'equipped' and substitutes 'fitted' to clarify that the requirement in this subregulation relates to a fixed installation rather than a temporary or portable one. This aligns the terminology with that used in other CASR Parts.

 

Item [18] Paragraph 90.255(2)(b)

 

Item [18] omits 'flight crew member's seat cushion' and substitutes 'flight crew seat cushion' to clarify that the requirement refers to the piece of equipment rather than where the flight crew member may be sitting. For long-range regular public transport flights with multiple flight crews, a flight crew member may not necessarily be seated in a flight crew (pilot) seat.

 

 

Item [19] After subregulation 90.270(2)

 

Item [19] inserts a new subregulation 90.270(2A) to provide that the wording 'NO CIGARETTE DISPOSAL' or a graphic with the same meaning must be placed on each toilet waste receptacle.

 

Item [20] Subregulation 90.270(3)

 

Item [20] omits the term 'equipped' and substitutes 'fitted' to clarify that the requirement is for a fixed installation rather than a temporary or portable one. This aligns the terminology with that used in other CASR Parts.

 

Item [21] Paragraph 90.270(3)(b)

 

Item [21] omits 'built-in' because Item [20] introduces the term 'fitted'.

 

Item [22] Subpart 202.EA (notes to heading)

 

Item [22] repeals the notes that reserved the Subpart future use and specifies the regulation numbers reserved for the Subpart because they have been replaced by transition requirements introduced by Item [23].

 

Item [23] Subpart 202.EA

 

Item [23] inserts a new regulation 202.400 after the heading, inclusive of subregulations 202.400(1) to 202.400(3).

 

Subregulation 202.400(1) provides that this regulation applies to the Part 90 MOS in force immediately before this amendment instrument commences.

 

Subregulation 202.400(2) provides that the Part 90 MOS referred to in subregulation 202.400(1) is considered to have been made under the new head of power provided by regulation 90.020 at Item [2].

 

Subregulation 202.400(3) prescribes that the regulation will be repealed on 1 January 2018.