ATTACHMENT A

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

Civil Aviation Legislation Amendment (Flight Operations--Fees and Consequential Amendments) Regulations 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 Disallowable Legislative Instrument

The instrument makes consequential amendments to regulations, following on from amendments made to the Civil Aviation Regulations 1988 (CAR) and Civil Aviation Safety Regulations 1998 (CASR). The amendments update the Civil Aviation (Fees) Regulations 1995 to align the fees for services provided by CASA with provisions of the CASR that are replacing provisions of the CAR. The amendments otherwise update legislative cross-references in several other Commonwealth regulations.

The instrument amends paragraph 6(1)(b) of the Disability Discrimination Regulations 2019 (DDR), by repealing the reference to Civil Aviation Order 20.16.3 and replacing it with the relevant references to carriage of persons or passengers who require assistance due to sickness, injury or disability contained in regulations 121.270, 121.275, 133.225, 133.230, 135.265 and 135.270 of the Civil Aviation Safety Regulations 1998 (CASR).

The instrument also inserts paragraph 6(1)(c) into the DDR, to refer to regulation 131.405 (Carriage of persons requiring assistance) of the CASR and the related Manual of Standards.

The purpose of these amendments is to prescribe these laws for the purposes of subsection 47(2) of the Disability Discrimination Act 1992 (DDA). Subsection 47(2) of the DDA provides that acts done by a person in direct compliance with a prescribed law is not unlawful discrimination under Part 2 of the DDA.

Related to this, the instrument will make small but important amendments to regulations 121.275, 133.230 and 135.270 (carriage of passengers with reduced mobility) of the CASR to clarify that duties undertaken by aircraft crew under these Parts and in respect of which discrimination is not unlawful, are those duties which are "safety duties", i.e. duties that relate to the safety of the aircraft and persons on board.

Human rights implications

The instrument engages the following rights:

•                      Right to equality and non-discrimination in Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD);

•                      Right to an effective remedy in Article 2(3) of the ICCPR.

 

Right to equality and non-discrimination

Article 26 of the ICCPR and Article 5 of the CRPD provide that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Right to an effective remedy

Article 2(3) of the ICCPR provides that State Parties must ensure that any persons whose rights or freedoms are violated shall have an effective remedy and that a competent authority shall determine and enforce that remedy.

Civil Aviation Safety Regulations 1998

The CASR Dictionary defines a suitable person as:

a person is a suitable person to occupy an emergency exit row seat or a seat adjacent to an emergency exit if the person:

(a) is reasonably fit, strong, and able to assist with the rapid evacuation of the aircraft in an emergency; and

(b) would not, because of a condition or disability, including an inability to understand oral instructions, hinder:

(i)  other passengers during an evacuation of the aircraft in an emergency; or

(ii)  the aircraft’s crew in carrying out their duties in an emergency.

Part 121 of CASR -- Australian air transport operations--larger aeroplanes

Regulation 121.270 (4) requires at least one crew member for a flight to be satisfied that each person occupying an emergency exit row seat is a suitable person. Regulation 121.275 (1) as being amended provides the operator and the pilot in command of an aeroplane for a flight each contravene this subregulation if, during the flight, a passenger with reduced mobility occupies a seat where the passenger could: (a) hinder the crew in their safety duties; or (b) obstruct access to emergency equipment; or (c) hinder the evacuation of the aeroplane in an emergency.

Part 131 of CASR -- Balloon operations

Regulation 131.405(1) provides the operator and the pilot in command of a Part 131 aircraft for a flight each contravene this subregulation if: (a) a passenger is carried on the flight who is likely to require assistance; and (b) a requirement prescribed by the Part 131 Manual of Standards for the purposes of this paragraph is not met for the flight.

Part 133 of CASR -- Australian air transport operations--rotorcraft

Regulation 133.225 (2) requires the pilot in command of the rotorcraft for the flight to be satisfied that each person occupying a seat adjacent to an emergency exit: (a) is a suitable person; or (b) is accompanied or assisted, for the flight, by a suitable person who can access the emergency exit.

Regulation 133.230 (1) as being amended provides the operator and the pilot in command of a rotorcraft for a flight contravene this subregulation if, during the flight, a passenger with reduced mobility occupies a seat where the passenger could: (a) hinder the crew in their safety duties; or (b) obstruct access to emergency equipment; or (c) hinder the evacuation of the rotorcraft in an emergency. This does not apply in relation to a passenger with reduced mobility if: (a) the passenger is accompanied or assisted, for the flight, by a suitable person who is seated adjacent to an emergency exit; and (b) the suitable person is accompanying or assisting only that passenger for the flight; and (c) the suitable person has agreed to assist the rotorcraft's crew with the evacuation of the rotorcraft in an emergency.

Part 135 of CASR -- Australian air transport operations--smaller aeroplanes

Regulation 135.265 requires that the pilot in command of the aeroplane for the flight must be satisfied that each person occupying a seat adjacent to an emergency exit: (a) is a suitable person; or (b) is accompanied or assisted, for the flight, by a suitable person who can access the emergency exit.

Regulation 135.270 (1) as being amended provides the operator and the pilot in command of an aeroplane for a flight contravene this subregulation if, during the flight, a passenger with reduced mobility occupies a seat where the passenger could: (a) hinder the crew in their safety duties; or (b) obstruct access to emergency equipment; or (c) hinder the evacuation of the aeroplane in an emergency. This does not apply in relation to a passenger with reduced mobility if: (a) the person is accompanied or assisted, for the flight, by a suitable person who is seated adjacent to an emergency exit; and (b) the suitable person is accompanying or assisting only that person for the flight; and (c) the suitable person has agreed to assist the aeroplane's crew with the evacuation of the aeroplane in an emergency.

The above laws restrict a person with a disability from occupying emergency exit row seating in aircraft for safety reasons. The above laws also restrict a person with a disability from occupying a seat, the location of which could: (a) hinder the crew in their safety duties; or (b) obstruct access to emergency equipment; or (c) hinder the evacuation of the aircraft in an emergency. Regulations 133.230 and 135.270 provide that this does not apply in relation to a passenger with reduced mobility if: (a) the passenger is accompanied or assisted, for the flight, by a suitable person who is seated adjacent to an emergency exit; and (b) the suitable person is accompanying or assisting only that passenger for the flight; and (c) the suitable person has agreed to assist the aircraft's crew with the evacuation of the aircraft in an emergency.

Application

The above laws, by restricting certain access for people with a disability, limit the right to equality and non-discrimination. Further, prescribing the above laws may limit the right to an effective remedy as it protects aircraft operators, and pilots in command, when acting in direct compliance with the prescribed laws, from a claim of unlawful discrimination under the DDA.

However, the limitations are necessary, reasonable and proportionate in achieving the objective of ensuring safety of everyone on board an aircraft. Access is limited only to what is strictly necessary to achieve safety outcomes, as evidenced by restricting hindrance of crew's duties to safety duties. Further, there is an exception that will apply if the person is accompanied or assisted by a suitable person who can access the emergency exit.

Further, providing certainty that operators, and pilots in command, when acting in direct compliance with the prescribed laws, are protected from a claim of unlawful discrimination, is also reasonable, necessary and proportionate in achieving the objective of ensuring safety of everyone on board an aircraft.

The prescription of the above laws is also consistent with subsection 98(6B) of the Civil Aviation Act 1988, which provides that regulations made under that Act may contain provisions that are inconsistent with the Disability Discrimination Act 1992, if the inconsistency is necessary for the safety of air navigation.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

 

 

ATTACHMENT B

Details of the Civil Aviation Legislation Amendment (Flight Operations--Fees and Other Consequential Amendments) Regulations 2021

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulations is the Civil Aviation Legislation Amendment (Flight Operations--Fees and Other Consequential Amendments) Regulations 2021.

 

Section 2 - Commencement

 

This section provides that the provisions of the instrument commence as specified in the table following the section. Schedule 1 Part 1 and Schedule 2 Part 1 commence on the day after registration. Schedule 1 Part 2 and Schedule 2 Part 2 commence on 2 December 2021, to coincide with the commencement of the FOR, comprising Parts 91, 103, 105, 119, 121, 131, 133, 135 and 138 of the Civil Aviation Safety Regulations 1998.

 

Section 3 - Authority

 

This section lists the various Commonwealth Acts under which the Regulations are made.

 

Section 4 - Schedules

 

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

Schedule 1 - Fees

Part 1 - Amendments commencing day after registration

Civil Aviation (Fees) Regulations 1995

Item 1 Part 3 of Schedule 1 (table item 3.3)

This item amends table item 3.3 by clarifying its wording and stating that the approval referred to is issued under regulation 37 of CAR.

Item 2 Part 8 of Schedule 1 (table item 8.44)

This item replaces references to "Approval of a special flight authorisation - processing and consideration" in table item 8.44 with "Special flight authorisation under regulation 135A of CAR - processing and consideration of application".

Item 3 Part 24 of Schedule 1 (at the end of the table)

This item inserts 14 new fee items (24.18 to 24.31) in the table at Part 24 and repeal 50 other fees. Items 24.18 to 24.30 relate to specific provisions of CASR that provide for the issue of an approval or other authorisation by CASA to a person, on application, and for which a fee would be assessed and charged by CASA. Early commencement of this item is necessary because the Civil Aviation Legislation Amendment (Flight Operations - Consequential Amendments and Transitional Provisions) Regulations 2021 provide for applications to made for approvals and other authorisations under the FOR on and from 7 June 2021. Prior to commencement of the FOR on 2 December 2021, persons may apply for flight operation approvals and other authorisations either under the FOR or under related provisions of the CAR. When the FOR commence, the relevant CARs will be repealed and all applications for flight operations approvals and other authorisations will be made under the FOR. The new fee items are effectively replacement fee items rather than additional fee items.

Item 4 Part 24 of Schedule 1 (at the end of the Part)

This item adds a note at the end of Part 24 to the effect that applications can be made for approvals and other authorisations under the FOR mentioned in fee items 24.18 to 24.30 of the table before the FOR commence, as provided for by Division 202.EAA.1 of CASR.

Part 2 - Amendments commencing 2 December 2021

Division 1 - Main amendments

 

Civil Aviation (Fees) Regulations 1995

Item 5 Subregulation 3(1) (definition of ASETPA)

This item repeals the definition of ASETPA (Approved Single Engine Turbine Powered Aircraft) in subregulation 3(1), as the fee items which use the term ASETPA are repealed by item 8 of this division.

Item 6 Part 3 of Schedule 1 (table item 3.3)

This item repeals table item 3.3 (minimum equipment list application processing) as it is no longer required. All minimum equipment lists will be approved under Subpart 91.Y of CASR when the FOR commence.

Item 7 Part 5 of Schedule 1 (table items 5.4, 5.5 and 5.30 to 5.33)

This item repeals table items 5.4. 5.5 and 5.30 to 5.33 under the fees for qualifications of flight crew, as these are no longer required.

Item 8 Part 8 of Schedule 1 (table items 8.1 to 8.30, 8.32 to 8.37 and 8.41 to 8.45)

This item repeals all the listed Part 8 table items under the fees for aircraft operations generally, except for items 8.31 and 8.38 to 8.40. The repealed Part 8 table items relate to provisions of the CAR that are being repealed and replaced by the FOR.

Item 9 Part 14 of Schedule 1 (table items 14.1, 14.2 and 14.3)

This item omits references to "air traffic controller licence" in the three table items and substitutes "ATC licence", which is a defined term in the CASR Dictionary.

Division 2 - Other amendments

 

Civil Aviation (Fees) Regulations 1995

Item 10 Before regulation 1

This item effectively restructures the Civil Aviation (Fees) Regulations 1995 (Fees Regulations) into parts, by inserting the title "Part 1 - Preliminary" before regulation 1.

Item 11 Before regulation 4

This item inserts the title "Part 2 - Fees" before regulation 4.

Item 12 After regulation 6

This item inserts the title "Part 3 - Application, saving and transitional provisions" after regulation 6. This item also establishes a Division 1 title for these provisions and inserts a new regulation 7 that is a transitional provision. The provision establishes the fees that apply in relation to an application for services made before 2 December 2021 but not decided upon by 2 December 2021, in circumstances where Division 202.EAA.1 of CASR provides that the old Regulations continue to apply in relation to the application.

Item 13 Part 24 of Schedule 1 (note)

This item repeals the note, as it is no longer relevant when this measure commences on 2 December 2021.

Schedule 2 - Other amendments

Part 1 - Amendments commencing day after registration

Civil Aviation Safety Amendment (Part 121) Regulations 2018

Measure 1 Item 1 of Schedule 1 (paragraph 121.275(1)(a))

This measure inserts the word 'safety" before "duties" in paragraph 121.275(1)(a) of CASR. This measure is directly related to measure 13 of Schedule 2 Part 2 for amendments to the Disability Discrimination Regulations 2019 regarding exemptions against the prohibition to discriminate. The measure clarifies that the crew member duties referred to in the paragraph are safety duties and hence that the exemption provided in measure 13 for the regulation relates only to duties that are safety duties.

Civil Aviation Safety Amendment (Part 133) Regulations 2018

Measure 2 Item 1 of Schedule 1 (paragraph 133.230(1)(a))

This measure inserts the word 'safety" before "duties" in paragraph 133.230(1)(a) of CASR. This measure is directly related to measure 13 of Schedule 2 Part 2 for amendments to the Disability Discrimination Regulations 2019 regarding exemptions against the prohibition to discriminate. The measure clarifies that the crew member duties referred to in the paragraph are safety duties and hence that the exemption provided in measure 13 for the regulation relates only to duties that are safety duties.

Civil Aviation Safety Amendment (Part 135) Regulations 2018

Measure 3 Item 1 of Schedule 1 (paragraph 135.270(1)(a))

This measure inserts the word 'safety" before "duties" in paragraph 135.270(1)(a) of CASR. This measure is directly related to measure 13 of Schedule 2 Part 2 for amendments to the Disability Discrimination Regulations 2019 regarding exemptions against the prohibition to discriminate. The measure clarifies that the crew member duties referred to in the paragraph are safety duties and hence that the exemption provided in measure 13 for the regulation relates only to duties that are safety duties.

 

Part 2 - Amendments commencing 2 December 2021

Air Navigation (Aircraft Noise) Regulations 2018

Measure 4 Subsection 4(1) (definition of maximum take-off weight)

This measure makes an editorial amendment to the definition and omits the reference to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

Air Navigation (Essendon Fields Airport) Regulations 2018

Measure 5 Section 5 (definition of maximum take-off weight)

This measure omits the reference in the definition to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

Measure 6 Paragraph 11(b)

This measure omits the reference to the Civil Aviation Regulations 1988 to and substitutes a reference to the Civil Aviation Safety Regulations 1998.

Air Navigation (Gold Coast Airport Curfew) Regulations 2018

Measure 7 Section 5 (definition of maximum take-off weight)

This measure omits the reference in the definition to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

Measure 8 Paragraph 14(b)

This measure omits the reference to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

 

Air Services Regulations 2019

Measure 9 Section 4 (definition of air traffic)

This measure omits the reference in the definition to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

Measure 10 Section 4 (definition of IFR flight)

This measure repeals the definition and substitutes a new definition that refers to the Civil Aviation Safety Regulations 1998.

Measure 11 Section 4 (definition of VFR flight)

This measure repeals the definition and substitutes a new definition that refers to the Civil Aviation Safety Regulations 1998.

 

Aviation Transport Security Regulations 2005

Measure 12 Regulation 1.03 (definition of air traffic control

This measure omits the reference in the definition to the Civil Aviation Regulations 1988 and substitutes a reference to the Civil Aviation Safety Regulations 1998.

 

Disability Discrimination Regulations 2019

Measure 13 Paragraph 6(1)(b)

This measure repeals the paragraph and substitutes a new paragraph (b) that refers to passenger emergency exit row seats and carriage of passengers with reduced mobility, under regulations 121.270, 121.275, 133.225, 133.230, 135.265 and 135.270 of the Civil Aviation Safety Regulations 1998, and a new paragraph (c) which refers to regulation 131.405 of the Civil Aviation Safety Regulations 1998 and the Part 131 Manual of Standards. The effect of this measure is to ensure that actions taken by aircraft operators and pilots to comply with the listed provisions are not considered unlawful under the Disability Discrimination Act 1992. The listed provisions address the seating of passengers in emergency exit rows, in seats adjacent to emergency exits and in other seats at which the passenger could hinder the crew in their safety duties, obstruct access to emergency equipment or hinder the evacuation of the aircraft in an emergency.

 

In some cases, it would not be in the interest of safety to seat a person with reduced mobility or other disability in such a seat. The CASR provide for the accommodation of passengers with special needs by requiring crew members to discuss with passengers with reduced mobility how the crew member can best assist the passenger if the emergency evacuation of the aircraft becomes necessary.