CIVIL AVIATION SAFETY AMENDMENT (PART 90) REGULATIONS 2017 (F2017L01149)
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. That subsection also provides that the Governor-General may make regulations for the purpose of carrying out and giving effect to the provisions of the Convention on International Civil Aviation (Chicago Convention) relating to safety and in relation to the safety of air navigation, being regulations with respect to any other matters for which the Parliament has power to make laws.
Subsection 9 (1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.
The Civil Aviation Safety Amendment (Part 90) Regulations 2017 (the Regulation) makes various amendments to the Civil Aviation Safety Regulations 1998 (CASR). The majority of these changes would be minor amendments to terminology to enhance consistency with other CASR Parts and to improve understanding of the regulations.
In addition to these minor amendments, the Regulation removes 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 Regulation will 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 Regulation recognising other items such as stretchers on aeromedical aircraft.
The Regulation introduces a provision 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 would prevail. Additionally, it clarifies that the Part does not intend to limit any other provision of the regulations that permits an aircraft to operate with a defect or inoperative equipment.
Finally, the Regulation expands the head of power for a Part 90 Manual of Standards, to allow CASA to ban certain fire extinguishing agents being used in aircraft fire extinguishing system. This permits CASA to meet its International Civil Aviation Organization (ICAO) obligations with respect to high Ozone Depleting Potential (ODP) Substances listed in the Montreal Protocol.
CASA consulted on the proposed changes:
* with the Certification Standard Subcommittee, which is a forum of aviation community and CASA participants, at the meeting held on 15 October 2014;
* with the Certification Standards Subcommittee and Standards Consultative Committee, which are forums of aviation community and CASA participants, from 22 August - 5 September 2016;
* through public consultation from 4 November - 5 December 2016.
CASA received 3 responses to the consultation draft; comments were editorial in nature, with no comments received opposing the technical content of the proposed changes.
Regulation Impact Statement
The Office of Best Practice Regulation assessed that the proposed amendments will have minor or machinery impacts and that no further analysis in the form of a Regulation Impact Statement was required (OBPR ID: 21075).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment A.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003. Details of the Regulations are set out in Attachment B.
The provisions of the Civil Aviation Safety Amendment (Part 90) Regulations 2017 commence the day after registration on the Federal Register of Legislation.
Authority: Subsection 98(1) of the
Civil Aviation Act 1988
Statement of Compatibility with Human Rights
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.
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.
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  After regulation 90.005
Item  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  Subregulation 90.020(1)
Item  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  Subregulation 90.020(2)
Item  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  Subregulations 90.105(2) and (3)
Item  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  At the end of subregulation 90.105(4)
Item  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  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  Paragraph 90.120(1)(b)
Item  omits reference to 'subregulation (2)' and substitutes with 'this regulation' to ensure that the change that made by Item  is interpreted correctly.
Item  Subregulation 90.120(2)
Item  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  After subregulation 90.120(2)
Item  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  Paragraph 90.125(1)(b)
Item  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  Before subregulation 90.130(1)
Item  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  Subregulation 90.135(2)
Item  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  Paragraph 90.135(6)(a)
Item  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  Paragraph 90.135(6)(b)
Item  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  Paragraph 90.140(2)(b)
Item  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  At the end of Subpart 90.B
Item  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  Subregulation 90.205(2)
Item  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  Paragraph 90.255(2)(b)
Item  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  After subregulation 90.270(2)
Item  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  Subregulation 90.270(3)
Item  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  Paragraph 90.270(3)(b)
Item  omits 'built-in' because Item  introduces the term 'fitted'.
Item  Subpart 202.EA (notes to heading)
Item  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 .
Item  Subpart 202.EA
Item  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 .
Subregulation 202.400(3) prescribes that the regulation will be repealed on 1 January 2018.