Airports (Protection of Airspace) Regulations 2026

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

Airports Act 1996

Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026

Purpose and Operation

Leased Federal Airports[1] (LFAs) are nationally significant economic and transport infrastructure assets. Airspace architecture and its protection is complex and designed to be coherent with the International Civil Aviation Organization’s (ICAO’s) Standards and Recommended Practices (SARPs) in Annex 14 to the Convention on International Civil Aviation (also known as the Chicago Convention), which is given effect to in Australian legislation through the Civil Aviation Safety Regulations 1988 where appropriate.

The Airports (Protection of Airspace) Regulations 2026 (the Regulations) establish a system for the protection of airspace at, and around, airports in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of airports. The Regulations also provide a mechanism to assess proposals for, and manage intrusions into, prescribed airspace. The Regulations replace the Airports (Protection of Airspace) Regulations 1996 (the 1996 Regulations) which have been in place since the privatisation of LFAs in 1996.

LFA sites are Commonwealth land situated adjacent to or within areas where state and territory governments are responsible for land-use planning and development. While the safety, efficiency or regularity of air transport operations into and out of the airport are the fundamental considerations, the Regulations support land-use planning and development outcomes that are compatible with safe, efficient or regular airport operations.

The Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026 (the Repeal and Consequential Amendments Regulations) contains repeals and consequential amendments associated with the making of the Regulations.

Modernisation

The Regulations have been prepared to meet modern drafting standards while maintaining the broad intent and objective of the 1996 Regulations; to establish a system for the protection of airspace at, and around, airports in the interests of the safety, efficiency or regularity of air transport operations.

Since the privatisation of LFAs, there have been changes in the legislative and operating environments. The legislative and operating environments have matured and evolved, and in April 2025, ICAO introduced amendment 18 to the Annex 14 (Volume I) SARPs for establishing the Obstacle Limitation Surface (OLS) and for managing intrusions into prescribed airspace.

ICAO’s amendment 18 to the Annex 14 (Volume I) SARPs will result in an overall reduction in the volume of airspace that is protected, whilst also commensurately strengthening the protections for existing and future aircraft operations into and out of airports, particularly during critical stages of flight. The ICAO changes recognise that aircraft cannot easily adapt to obstacles during critical stages of flight. Therefore, the observed or expected performances of aircraft operating into, out of, and within the vicinity of aerodromes is a key consideration in ensuring the ongoing safety of air transport operations. The objects of the ICAO changes are to preserve the airspace necessary for existing and future/intended visual and instrument air transport operations at an aerodrome, and to differentiate obstacle requirements according to the effect of obstacles on the safety, efficiency or regularity of air transport operations.

As a signatory to the Chicago Convention, Australia undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organisation in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. Effective airspace management, including through the Regulations, is fundamental for ensuing safety outcomes. Intrusions into prescribed airspace may introduce hazards that erode the margin for operational error and deviate from agreed international standards, as implemented in Australia, thereby creating direct or indirect impacts to aviation safety.

As such, the Regulations have been drafted to:

ensure a fit-for-purpose regulatory regime with a continued focus on the safety, efficiency or regularity of air transport operations into and out of LFAs;
accord with ICAO’s Annex 14 aims and objectives for safety, efficiency or regularity of existing and future air transport operations;
provide continued safe, efficient or regular air transport operations that enhance existing and future aviation networks and support a sustainable aviation sector; and
streamline and improve the efficiency of assessment and decision-making processes for applications to undertake an activity that would result in an intrusion into prescribed airspace.

The Regulations replace the 1996 Regulations which sunset on 1 April 2026. Sunsetting is an automatic repeal of instruments after a fixed period, under the Legislation Act 2003. The aim is to ensure instruments remain fit-for-purpose and are only in force for as long as required.

The Regulations include savings and transitional provisions such as the transition of applications for controlled activities and savings of declarations of prescribed airspace.

The main purpose of this exposure explanatory statement is to outline the changes that have been made as part of the remaking process. The Federal Register of Legislation (FLR) provides the legislative history of the sunsetting Regulations, including past explanatory statements.

The latest versions of Australian Government Acts, Regulations and other legislative Instruments referenced in this exposure draft explanatory statement are available at the FLR (https://www.legislation.gov.au).

The Aeronautical Information Publication referenced in this exposure draft explanatory statement as in force or existing from time to time is at (https://www.airservicesaustralia.com/aip/aip.asp).

Further details of the Regulations are outlined in Attachment A.

Authority

The Airports Act 1996 (the Act) establishes a regulatory framework for LFAs. Section 252 of the Act provides that the Governor-General may make regulations 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. The Act identifies a range of matters which may be prescribed by regulations.

The original sunsetting date for the 1996 Regulations was 1 April 2019. This sunsetting date was extended on 3 occasions, on the first instance by the Legislation (Airport Instruments) Sunset-altering Declaration 2018 to 1 April 2024, then to 1 April 2025 by the Legislation (Deferral of Sunsetting – Airport Instruments) Certificate 2022, then to
1 April 2026 by the Legislation (Deferral of Sunsetting – Airport Instruments) Amendment Certificate 2024. The final deferral was sought to align the sunsetting of the
1996 Regulations with the issuing of ICAO’s amendment 18 to Annex 14 of the Convention of International Civil Aviation.

Further detail on enabling provisions for specific Parts of the Regulations, and the Repeals and Consequential Amendments Regulations, is included in Attachment A.

The Regulations, and the Repeals and Consequential Amendments Regulations, are disallowable legislative instruments under the Legislation Act 2003. The Airports (Protection of Airspace) Regulations 2026 commence on 1 April 2026. The Repeals and Consequential Amendments Regulations will commence in accordance with subsection 2(1) of these regulations.

Consultation

The approach to making the Regulations has been informed by the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts’ (the department’s) regular engagement with Airport Operator Companies (AOCs), Airservices Australia (Airservices), the Civil Aviation Safety Authority (CASA) and regulated entities throughout the administration of the 1996 Regulations.

The department formally consulted on the remaking of the 1996 Regulations from early 2023, including with AOCs, CASA, Airservices and regulated entities. The consultation continued through to 2025 and included targeted workshops, presentations and opportunities for stakeholders to provide feedback.

These consultation activities have confirmed that while the 1996 Regulations were generally fit for purpose, there were opportunities to:

modernise language, and make minor and technical updates;
reduce regulatory and/or administrative burden where appropriate;
improve the overall efficiency of administrative and decision-making processes; and
further align with the aims and objectives of the International Civil Aviation Organization’s 2025 amendment 18 to Annex 14 of the Convention of International Civil Aviation.

The department undertook public consultation on an exposure draft from December 2025 to January 2026.

The Attorney-General’s Department was consulted on the Regulations under the OPC Drafting Directions.

Subject matter experts at CASA and Airservices were consulted on the definition of TIFPOP surfaces.

CASA was consulted on consequential amendments to the Civil Aviation Safety Regulations 1998 outlined in Part 1 of Schedule 1 of the Repeals and Consequential Amendments Regulations.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is set out at Attachment B.

Attachment A

Details of the Airports (Protection of Airspace) Regulations 2026

Part 1—Preliminary

Section 1 - Name

Section 1 specifies that the name of the Regulations is the Airports (Protection of Airspace) Regulations 2026.

Section 2 - Commencement

Section 2 specifies that the Regulations will commence on 1 April 2026.

Section 3 - Authority

Section 3 specifies the Airports Act 1996 (the Act) provides authority for the Regulations to be made.

Section 4 - Object

Section 4 outlines the object of the Regulations.

Section 5 - Definitions

Section 5 sets out the definitions for terms used throughout the Regulations.
Some defined terms used in the Regulations are defined in the Act. These terms have not been further defined in the Regulations, as per section 13(1)(b) of the Legislation Act 2003, when used in the Regulations, the expressions used in the Regulations will have the same meaning as in the Act (subject to any contrary intention).
New terms include:

Aeronautical Information Publication (AIP)

This term has been introduced as it contains details of Instrument Flight Procedures that are integral to the establishment of certain Terminal Instrument Flight Procedures Obstacle Protection (TIFPOP) surfaces and TIFPOP areas. For the purposes of the Regulations, prescribed airspace is established in accordance with ICAO standards and recommended practices as implemented in Australia through the Civil Aviation Safety Regulations 1998 as administered by CASA.

primary airspace and primary surfaces

Aircraft operating in primary airspace or above a primary surface are configured for, and engaged in, critical stages of flight and cannot readily or safely manoeuvre to avoid obstacles. As such, primary airspace and primary surfaces are intended to be maintained as obstacle free surfaces to the extent possible. These terms have been introduced to support the consideration of applications to carry out a controlled activity under the Regulations.

secondary surface

Aircraft operating in secondary airspace are configured for, and engaged in, operations that provides a degree of flexibility to adapt to the obstacle environment. However, obstacles intruding into this airspace may present a safety risk and as such, an assessment is required to identify if the proposed intrusion would be hazardous and/or if any potential risks to aviation safety can be managed or mitigated. This term has been introduced to support the consideration of applications to carry out a controlled activity under the Regulations.

TIFPOP surfaces

The term TIFPOP surfaces replaces what was previously specified as Procedures for Air Navigation Systems Operations (PANS-OPS) surfaces in the 1996 Regulations. The term is intended to be applied broadly, so as to protect airspace in relation to any terminal instrument flight procedure for the airport. For the purposes of the Regulations, prescribed airspace is established in accordance with ICAO Annex 14 SARPs as implemented in Australia through the Civil Aviation Safety Regulations 1998 as administered by CASA.

The phrase 'associated with’ as used in section 5 of the Regulations has a meaning affected by the technical phrase ‘associated with' in the discipline of instrument flight procedure design. In section 5, the phrase 'associated with' is used in a way that is consistent with its use in ICAO Procedures for Air Navigation – Air Operations, Doc 8168-OPS/611, Volume II – Construction of Visual and Instrument Flight Procedures, as well as other technical design standards documents used by instrument flight procedure designers.

In general terms, within the discipline of instrument flight procedure design, and in the context of surfaces, the phrase ‘associated with’ denotes both the specific types of connection between a particular terminal instrument flight procedure for an airport and the surfaces that are derived, calculated, forecast, projected, ascertained or are otherwise necessary for that terminal instrument flight procedure. A qualified instrument flight procedure designer is able to calculate—with an extremely high degree of certainty and accuracy—all surfaces which are 'associated with' a given terminal instrument flight procedure which has been published in the Aeronautical Information Publication.

It is nessessary for aviation safety that the exact surfaces associated with TIFPOP surfaces are protected. It is accepted that persons other than qualified instrument flight procedure designers may not be easily able to determine the relevant surfaces. As such, the Regulations provide that the responsible entity for an airport makes available charts for prescribed airspace, including TIFPOP, which include the lower boundary. These charts are accessible resources that support members of the public to understand the practical effect of the surfaces on their proposed controlled activity.

Section 6 - Sensitive Controlled Activities

Section 6 provides a controlled activity is a sensitive controlled activity if it would intrude into airspace above a primary surface, and is not proposed to be carried out on an airport site. The reasons these kinds of activity are considered sensitve are explained later in this Explanatory Statement. An applicant seeking to undertake a sensitive controlled activity must seek permission to bring forward an application under section 13.
A controlled activity will not be a sensitive controlled activity if that activity is conducted on an LFA site. For example, some activities on an LFA site, if carried out, will unavoidably result in an intrusion into primary surface(s) due inherently to its the proximity to critical aviation infrastructure. As such, if an applicant is seeking to carry out a controlled activity that is likely to intrude into primary surface(s) on an LFA site, the applicant does not need to seek permission to bring forward an application under section 13. However, the applicant will still be required to bring forward an application to carry out the controlled activity for consideration and determination under the Regulations. To avoid doubt, the fact an applicant is not required to obtain permission to bring forward an application, does not pre-empt or affect the ultimate determination of that application by the Secretary (or delegate) - the Secretary (or delegate) still has the discretion to ultimately refuse that application.

Section 7 - Controlled activities on terrain that intrudes into secondary airspace

There are some areas around LFAs where the terrain itself intrudes into secondary surfaces. Under the 1996 Regulations, controlled activities in these areas, including, the erection of structures, buildings or things (such as a shed, or fence, etc.) were subject to the same regulatory application and assessment process as more complex controlled activity applications even though they are inherently less complex.
Under the Regulations, if the proposed controlled activity meets the requirements of section 7, then the AOC may consider the application under a truncated process that would not require additional specialist advice from aviation agencies to inform a determination. This allows for an expedited application process for applicants for these kinds of activities.
Note, ‘terrain’ refers specifically to land features and their physical characteristics. Components of terrain include elevation, slope and landforms of the landscape.

Part 2—Prescribed airspace

Section 8 - Prescribed airspace

For the purposes of section 181 of the Act, the Regulations set out that prescribed airspace is the airspace as:

above any part of an OLS or a TIFPOP surface for an airport; and
airspace connected with an airport specified in a declaration made under subsection 9(1).

Consistent with the 1996 Regulations, the Regulations maintain the requirement for the responsible entity for an airport to make available for inspection or purchase a chart of prescribed airspace connected with the airport, and to bring the chart up to date if there are changes to prescribed airspace connected with the airport.
The Regulations extend the time the responsible entity has to bring the chart up to date following a change to prescribed airspace, from 14 days in the 1996 Regulations to 40 working days. This is to support the consultation and verification processes between the responsible entity, CASA and Airservices in relation to updating prescribed airspace charts.
Subsection 8(5) has been modernised to require the responsible entity to publish a notice of the fact that a new chart or updated chart is available in a manner that results in the notice being accessible to the public and reasonably prominent. The 1996 Regulations set out that such a notice was to be published in at least one newspaper in general circulation in the state or territory in which the airport is located.
As a matter of practice, AOCs make prescribed airspace charts freely and readily available to the public, electronically on the AOC’s website. However, if a person requests a physical copy of the prescribed airspace charts and the AOC incurs costs relating to the printing or posting of those charts, as a private company providing a service, AOCs may charge for that service.

Section 9 - Declaration of prescribed airspace

Consistent with the 1996 Regulations, the Regulations continue to enable the Secretary to declare airspace connected with a particular airport to be prescribed airspace. This provision has been updated to enable the Secretary to declare prescribed airspace in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of the airport.
A mechanism to permit further airspace to be prescribed is to ensure that adequate airspace can be protected to secure the safety, efficiency or regularity of existing and intended air transport operations for the airport. For example:

Depending on the type of air transport operations that are carried out at the respective LFA, the airspace above the OLS and TIFPOP surfaces may not include all the airspace that is necessary for safe, efficient or regular air transport operations, for example, navigational devices, radar, and instrument landing systems vary across an airport and are not captured under the OLS and TIFPOP surfaces. As such, the Regulations provide for an AOC to request the Secretary declare any additional airspace above and around the airport requiring protection for existing and intended operations of the airport in the interest of safety, efficiency or regularity of air transport operations, in addition to the OLS and TIFPOP surfaces.
If an AOC is seeking to construct a new runway, an AOC may request the Secretary to declare the airspace in relation to that new runway in the interest of safety, efficiency or regularity of air transport operations to ensure the future operational viability of the new runway.
An AOC may request the Secretary to declare additional airspace associated with changes to the airspace architecture or flight path design for existing or intended operations of the airport in the interest of safety, efficiency or regularity of air transport operations.

Consistent with the 1996 Regulations, the Regulations retains the requirement that the Secretary, in making the declaration, must have regard to any changes to the OLS or TIFPOP surfaces for the airport proposed in the final master plan.
The Secretary’s functions and powers in relation to section 9, are generally exercised by an Australian Public Service (APS) employee who holds, or is acting in, an Executive Level 2 (EL2), or equivalent, position in the department. Departmental employees to whom the Secretary would delegate one or more of the Secretary’s functions or powers would possess the appropriate training, knowledge, skills or experience and would have responsibility for administering airport or aviation related regulatory functions. Most assessments and decisions relating to the declaration of prescribed airspace are uncontroversial, highly technical, and informed by the technical requirements, assessments and advice of CASA, Airservices and other industry specialists. It is appropriate that the power is able to be exercised by technical experts occupying roles at the EL2, noting that in the rare instances, if a declaration may raise wider issues, that decision can be referred to an SES officer or the Secretary to exercise the power.
Prescribed airspace charts may be updated multiple times within the master plan cycle. It is important that prescribed airspace charts that have been superseded are not used by regulated entities to inform land-use planning and development decisions or undertake assessments relating to carrying out a controlled activity into prescribed airspace. As such, entities seeking information relating to prescribed airspace should contact the relevant responsible entity as required under subsection 8(2) to make available for inspection or purchase a chart of prescribed airspace connected with the airport. If there is any doubt on the part of the applicant as to whether a particular activity will intrude into prescribed airspace, the preferable course from the position of aviation safety outcomes is for the applicant to make an application to enable the proposed activity to be assessed by relevant experts.
Subsection 9(5) specifies the declaration may declare that a surface below airspace specified in the declaration is a primary or secondary surface for the airport. This provision contributes to the management proposed obstacles into prescribed airspace and the associated management of controlled activity applications.

Part 3—Matters affecting whether an activity is a controlled activity

Section 10 - Level of air turbulence

The 1996 Regulations specified the level of air turbulence for turbulence caused by an emission from a stack or vent is upward vertical velocity of 4.3 metres per second at the point of emission. CASA advised that it is in the process of amending the standard and that the upward vertical velocity should be increased to 6.1 metres per second at the point of emission. Consistent with this advice, the Regulations specify the level of air turbulence for turbulence caused by an emission from a stack or vent is upward vertical velocity of 6.1 metres per second at the point of emission.

Part 4—Approval of controlled activities

Section 11 - Purpose of this Part

Section 11 specfies that Part is made for the purposes of section 184 of the Act.

Section 12 - Application for approval to carry out controlled activity

An unapproved controlled activity may present an unacceptable risk to aviation safety. A person may commit an offence against section 183 of the Act, and remedial orders may be made under section 187 of the Act, if a controlled activity is carried out other than in accordance with an approval.
A person seeking to undertake a controlled activity must obtain approval under the Regulations prior to undertaking that activity. Section 12 of the Regulations outlines the process and requirements for an application to carry out a controlled activity. Specifically, the applicant must apply to the responsible entity for the relevant airport. Subsection 12(2) sets out the requirements for what an application to carry out a controlled activity must contain. As a practical matter, applicants are encouraged to consult the relevant AOC in the course of preparing an application to ensure it is complete and so avoid unneccesary assessment delays.
Under paragraph 12(3)(a), the application must be accompanied by an assessment from Airservices, in relation to the activity, obtained by the responsible entity for the airport. In general terms, Airservices’ assessment will identify which (if any) airspace and instrument procedures may be affected by a proposed controlled activity. Airservices provides these assessments to airports free of charge (meaning there is no cost for an applicant arising from this process). An application is not considered to be complete, and the 40 working day decision making timeframe does not commence, until subsections 12(2) and (3) have been met.
Under the 1996 Regulations, the assessment of Airservices was sought at the same time as CASA, the Department of Defence (if that airport is a joint-user airport) and other relevant stakeholders. However, the assessment by Airservices as to the airspace and instrument flight procedures that may be affected by a proposed intrusion is integral to stakeholders being able to determine the application pathway, as well as informing the advice of CASA, the AOC, and the decision of the Secretary. As such, under the Regulations, an application must be accompanied by an assessment by Airservices, in relation to the activity, obtained by the responsible entity for the airport.
Under paragraph 12(3)(b), if the controlled activity is a sensitive controlled activity, the application must be accompanied by a copy of the notice given to the applicant under section 13, permitting the applicant to apply to carry out the activity. To avoid doubt, the fact that permission to bring forward an application has been given, does not pre-empt or affect the ultimate determination of that application by the Secretary (or delegate).—The Secretary (or delegate) still has the discretion to ultimately refuse that application.
Subsection 12(4) specifies that an applicant may withdraw their application at any stage before a decision is made. If the applicant withdraws the application, it will be taken as never having been made.
Subsection 12(6) sets out that the responsible entity for the airport must provide notice to an applicant within 10 working days of receiving the application, the timeframe within which the application will be deemed refused if a decision is not made. Subsection 12(6) informs the applicant of the decision-making timeframes and factors that could influence that timeframe.

Section 13 - Permission to apply to carry out sensitive controlled activities

Aircraft operating in primary airspace are configured for, and engaged in, critical stages of flight and cannot readily or safely manoeuvre to avoid obstacles. Intrusions into primary airspace therefore generally present an unacceptable impact on the safety, efficiency or regularity of air transport, hence the need to maintain primary surfaces as obstacle free surfaces to the extent possible. As such, the Regulations prohibit applications to carry out any intrusion into primary airspace that is not temporary.
The protection of primary surfaces is crucial for ensuring aircraft have a safe path for take-offs and landings, for both visual and instrument approaches. This section formalises controls for activities, that if carried out, would intrude into primary airspace and supports ongoing alignment with international standards for maintaining critical surfaces as obstacle free.
Section 13 sets out that a person must not apply under section 12 for approval to carry out a sensitive controlled activity unless the person has first been given permission. A person applying for permission to bring forward an application to undertake a sensitive controlled activity must in accordance with paragraph 13(4)(e) specify one of the following:

the emergency recovery works, emergency restoration works, or public infrastructure works for which the activity is required;
how the activity could be carried out without any significant interference to airport operations; or
the exceptional circumstances that the applicant believes justify the making of an application under section 12 for approval to carry out the activity.

As outlined earlier, aircraft operating in primary airspace or above a primary surface are configured for, and engaged in, critical stages of flight and cannot readily or safely manoeuvre to avoid obstacles. For this reason, primary airspace is intended to be maintained as obstacle free surfaces to the extent possible. As such intrusions into primary surfaces can only be capable of approval in limited circumstances and require permission to bring forward an application. This avoids the costs to the applicant of preparing a complete application, and the costs to CASA, Airservices, AOCs and the department of assessing applications when it is clear that the proposed intrusions do not fall within the limited permissible circumstances.
The Secretary (or delegate), may, by written notice to the applicant, give the permission requested under subsection (2) if the Secretary (or delegate) is satisfied that the proposed activity would be a temporary controlled activity and:

the activity is required to carry out emergency recovery works, emergency restoration works, or public infrastructure works; or
it is reasonably likely that the activity could be carried out without any significant interference to airport operations; or
exceptional circumstances exist that justify permitting an application to be made under section 12 for approval to carry out the activity.

The Secretary (or delegate), has discretion to give or refuse to give permission. A decision to give or refuse to give permission must be provided to the applicant, in writing. To avoid doubt, the fact that permission to bring forward an application has been given, does not pre‑empt or affect the ultimate determination of that application by the Secretary (or delegate) - the Secretary (or delegate) still has the discretion to ultimately refuse that application.
Subsection 13(9) provides that, if the Secretary (or delegate) refuses to give permission to make the application under subsection 13(8), the applicant may request, in writing, the Secretary (or delegate) to give a statement of reasons for the decision. The Secretary (or delegate) must comply with this request.
Section 24 provides for internal merits review of decisions made under subsection 13(8). If an officer or employee of an AOC, performing the functions of the Secretary under a delegation, refuses to give a person permission to make an application, the person may request that the Secretary, or the SES or APS EL2 performing the functions of the Secretary under a delegation, undertake an internal merits review of that decision.

Section 14 - Consultation on applications to carry out controlled activities

Section 14 sets out requirements for the responsible entity to give written notice of the application to, and invite submissions from, certain authorities within 10 working days of receiving an application under section 12. Subsection 17(5) specifies that the Secretary (or delegate), in considering the effect that the controlled activity, if carried out, will have on the safety, efficiency or regularity of existing or future air transport operations into or out of the airport concerned, must have regard to the advice from those authorities.
Under section 14, the responsible entity must seek submissions from CASA and/or the Department of Defence (if that airport is a joint-user airport) for all applications except for those to which section 7 applies. For applications to which section 7 applies – that is, controlled activities which do not exceed a maximum height of 30 metres Above Ground Level (AGL) and the activity is situated on terrain that intrudes into a secondary surface only, the responsible entity has discretion and needs only to seek submissions from CASA and Airservices and/or the Department of Defence (if that airport is a joint-user airport) on a case by case basis if required.
Subsection 14(3) provides a mechanism through which authorities may request a copy of an application. If requested, this may allow authorities to formulate their submissions regarding the full scope of the application, assess any interdependencies or cumulative impacts and ensure their advice is based on all available evidence.
The 1996 Regulations specified that the AOC must also seek submissions from the building authority concerned. This requirement has not been retained in the Regulations in order to clarify the responsibility of the building authority and eliminate any potential for conflict with the operation of section 23. Notwithstanding the above, this section does not preclude the AOC from seeking submissions from the building authority concerned or other relevant stakeholders such as users of the airport, on a case-by-case basis, if required.

Section 15 - Giving applications to the Secretary

Section 15 imposes an obligation on the AOC to refer the application to the Secretary for determination if no officer or employee of the AOC has been granted delegation to make a determination on the application. Subsections 15(2) and (3) specifies the AOC must give the application to the Secretary for decision within 30 working days of receiving an application, provide a copy of any submissions received in relation to that application, and must advise the Secretary of the date the application was received and whether the AOC supports the application.
To avoid doubt, even if an officer or employee of an AOC does in fact hold a delegation to make a decision on an application, the AOC may still decide at any stage to refer the application to the Secretary to make a decision - for example if the AOC considers the decision to be highly sensitive or to require escalation. Consistent with the usual legal principles applicable to delegation, the Secretary (as delegator) remains able at all times to exercise a power that has been delegated (see paragraph 34AB(1)(d) of the Acts Interpretation Act 1901, which applies to the Regulations because of paragraph 13(1)(a) of the Legislation Act 2003).

Section 16 - Requests for further information or documents

Section 16 provides a mechanism for the Secretary (or delegate) to request further information or documents from the applicant, if required, for the purposes of making a determination on a controlled activity application made under section 12.
If the Secretary (or delegate) requires further information or documents, the Secretary (or delegate) will issue a written notice to the applicant. The applicant must give the requested information or documents to the Secretary (or delegate) within 60 working days otherwise the application is taken to have been withdrawn.
While the Secretary (or delegate) is waiting for this further information, the decision-making period is paused as per subsection 18(5) and the Secretary (or delegate) is not obliged to make a decision in the absence of the further information that was requested.

Section 17 - Decision on application

Section 17 specifies that the Secretary (or delegate) must approve or refuse an application and sets out the matters the Secretary must take into account in considering an application.
Subsection 17(3) specifies that the Secretary (or delegate) must not approve an application if CASA advises that carrying out the controlled activity would have an unacceptable effect on the safety of air transport operations, or if the AOC does not support the application.
LFAs are significant national transport and economic infrastructure assets, and it is in the public interest to preserve the accessibility of these airports existing and intended operations. Existing and intended air transport operations into and out of airports must continue to be conducted safely. As such, the safety advice of CASA must be adhered to. ICAO’s Annex 14 aims and objectives as implemented in Australia, includes preventing the growth of obstacles into prescribed airspace that may affect the safety, efficiency or regularity of air transport operations.

Section 18 - Period for making decision on application

Subsection 18(1) specifies that the Secretary (or delegate) has 40 working days to make a decision on an application received under section 12. Subsection 18(2) specifies the Secretary (or delegate) may extend this timeframe, by notice in writing, by a period of no more than 10 working days.
If the Secretary (or delegate) does not make a decision within this period, the Secretary (or delegate) is taken to have refused the application. A deemed refusal is subject to merits review under the Administrative Review Tribunal Act 2024.

Section 19 - Notice of Decision

Section 19 requires the Secretary (or delegate) to notify the applicant and relevant entities, of the decision in writing as soon as practicable.
If the Secretary (or delegate) is taken to have refused an application under
subsection 18(6), a person affected can seek review of the deemed refusal in the Administrative Review Tribunal.

Section 20 - Approval may be subject to conditions

A building, structure, or thing that intrudes into prescribed airspace may create direct or indirect risks or implications for the safety, efficiency or regularity of air transport operations into or out of an airport.
Consistent with the 1996 Regulations, section 20 of the Regulations provides that the Secretary (or delegate) may approve an application under subsection 17(1) subject to conditions, if the Secretary (or delegate) reasonably believes that carrying out the controlled activity other than in accordance with the conditions would not be in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of the airport. A non-exhaustive list of examples of what a condition may require are included in note 1 under subsection 20(2) of the Regulations. As per section 15AD of the Acts Interpretation Act 1901 (which applies to the Regulations because of s 13(1)(a) of the Legislation Act 2003), the examples given of the operation of the provision for imposing conditions are not exhaustive, and may extend the operation of the provision.
A person who carries out a controlled activity other than in accordance with a condition of an approval commits an offence against section 185 of the Act. Section 185 of the Act provides for a penalty of 250 penalty units for each such offence.

Section 21 - Revocation and variation of approvals etc.

There may be certain circumstances that necessitate the Secretary (or delegate) to revoke an application, impose a condition on, or vary a condition of, an application that was approved under subsection 17(1) in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of an airport. For example, a delegate may revoke the approval, or vary the conditions of the approval of an application under subsection 17(1) if a safety risk emerges, that was not known at the time of approval, due to (not limited to) changes in prescribed airspace, or aviation operating environment. As such, section 21 enables the Secretary (or delegate) to revoke or vary an approval if the Secretary (or delegate) is satisfied that it is necessary to do so in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of an airport.

Part 5—Exempt controlled activities

Section 22 - Exemption for controlled activities in relation to Sydney West Airport

The 1996 Regulations exempt certain controlled activities in relation to the prescribed airspace for Western Sydney International (Nancy-Bird Walton) Airport (referred to as Sydney West Airport in the Act).
The exemption in section 22 covers controlled activities that are, or comprise part of, developments covered by Part 3 of the airport plan for Sydney West Airport; and are not carried out after 30 June 2026.
An airport plan for Sydney West Airport under subsection 96B(1) of the Act was determined on 5 December 2016. The exemption at section 22 recognises the detailed assessment of the interaction between activities covered by Part 3 of the airport plan and airspace restrictions that was completed as part of the airport plan development process. The purpose of limiting this exemption to relevant controlled activities carried out before 1 July 2026 is to provide an appropriate period of time between the end date of the exemption and the anticipated commencement of air transport operations to and from Sydney West Airport to enable affected stakeholders to develop sufficient awareness of, and familiarity with, the regulatory regime and approval requirements before Sydney West Airport operations commence.

Part 6—Notification of proposals to carry out controlled activities

Section 23 - Building authority to give notice of proposals to carry out controlled activities

Building authorities perform an integral role in minimising the risk of a person carrying out a controlled activity without the necessary approvals under the Act and the Regulations. Unauthorised controlled activities present an unacceptable risk to aviation safety. A person may commit an offence against section 183 of the Act, and remedial orders may be made under section 187 of the Act, if a controlled activity is carried out other than in accordance with an approval.
LFA sites are Commonwealth land situated adjacent to or within areas where state, territory and local governments are responsible for land-use planning and development. As such, development applications would generally flow through either state, territory or local governments, and from time to time applicants such as members of the public may not be aware of the requirements of the Act or Regulations. By requiring building authorities to refer applications to the relevant AOC, it connects state, territory or local governments’ land-use planning and development processes with the controlled activity assessment process under the Regulations.
Therefore, a building authority that receives a proposal for a building activity must notify the AOC of the relevant LFA of the proposal if the activity, if undertaken, would constitute a controlled activity in relation to prescribed airspace connected with the airport. The building authority must give such a notice as soon as reasonably practicable and before a final decision on the proposal is made. An unauthorised controlled activity may present an unacceptable risk to aviation safety and, as such, a building authority that fails to comply with section 23 commits an offence against section 186 of the Act.
State, territory and local governments recognise aviation considerations in their planning regimes to enable land-use planning and development decisions that are compatible with the safety of aviation operations. AOCs also have established processes with those state, territory and local government authorities to support information sharing and consultation. This includes through airport planning coordination forums, state, territory and local government-based development application referral/consultation processes and other regular engagements.

Part 7—Miscellaneous

Section 24 - Internal review of certain decisions

Administrative decisions under the Regulations will, or are likely to, affect the interests of a person and are therefore subject to merits review as set out under sections 24 and 25 of the Regulations.
Section 24 sets out that a person may request that the Secretary (or delegate) review the decision of an AOC employee performing the functions of the Secretary under a delegation under subsection 26(2) to refuse to give permission under subsection 13(8) to make an application.
The person must make such a request within 10 working days of the decision to refuse permission to make an application. The Secretary (or delegate) on receiving the person’s request must affirm, vary or set aside the decision of the AOC employee performing the functions of the Secretary under a delegation under subsection 26(2) within 30 working days.
No other decisions under the Regulations allow for an internal department review. For the course of previous application, the department has not received any requests for, or determinations requiring, internal merits review. For complex applications, delegates within the department with experience in assessing and making decisions on such applications would likely have already been involved in the assessment process or decision making for that application and therefore would not be well placed to undertake or support an internal review mechanism. For these large and complex applications, it is more appropriate for the Administrative Review Tribunal to review and if required, remake the decision. As such, the Regulations maintain that all other disputed decisions are subject to review by the Administrative Review Tribunal under the Administrative Review Tribunal Act 2024.

Section 25 - Administrative Review Tribunal

Under the Regulations, a decision of the Secretary (or delegate) made under the following sections may be taken to the Administrative Review Tribunal for merits review:

section 9 to make a declaration;
subsection 13(8) to refuse to give permission to make an application;
subsection 17(1) or 18(6) to refuse an application;
section 24 to affirm, vary or set aside a decision.

Section 26 - Delegation

Consistent with the 1996 Regulations, subsection 26(1) of the Regulations empowers the Secretary to delegate one or more of the Secretary’s functions or powers to an SES employee, or acting SES employee, or an APS employee who holds, or is acting in, an EL2, or equivalent, position in the department. APS employees to whom the Secretary delegates one or more of the Secretary’s functions or powers possess the appropriate training, knowledge, skills or experience.
Paragraph 26(1)(b) allows for delegation of the Secretary’s powers to an EL2 or acting EL2. Under the 1996 Regulations, EL2 employees, who exercised the Secretary’s delegated functions or powers, did so for a high volume of decisions. Maintaining delegation to this level balances administrative expediency with proportionate controls on decision making.
It is expected that the Secretary’s powers will continue to be exercised as frequently under the Regulations. Confining the delegation to SES employees, or acting SES employees only, would likely lead to delayed decision making given the volume of such decisions. This in turn could have adverse impacts on regulated entities including, applicants, building and construction industry, state, territory and local governments land-use and planning authorities, and LFAs.
Consistent with the 1996 Regulations, subsection 26(2) of the Regulations empowers the Secretary to delegate one or more of the Secretary’s functions or powers to an employee of an AOC of an LFA. An AOC employee who is delegated one or more of the Secretary’s functions or powers must hold a position of appropriate seniority, possess the necessary training, knowledge, skills or experience to administer their delegation; and demonstrate competency in having regard to the matters the Secretary is required to have regard to under the Regulations.
Thousands of controlled activity applications are submitted each year across all LFAs. The majority of these applications have been short-term (the intrusion into prescribed airspace does not exceed a period of 3 months) and are therefore determined by the AOC employees to whom the Secretary has delegated limited functions and powers. Under the 1996 Regulations, AOC employees who exercised the Secretary’s delegated functions or powers, did so for a very high volume of decisions. It is expected that the Secretary’s powers will be exercised by AOC delegates as frequently under the Regulations.
Considerably narrowing the delegation power by confining the delegation of the Secretary’s powers to APS employees only would cause substantial delays for the regulated community, potential negative financial implications and disbenefits for the public. It would increase the risk of applicants proceeding to carry out a controlled activity without the necessary approvals under the Act and the Regulations should the regulatory assessment process lack responsiveness. Unauthorised controlled activities present an unacceptable risk to aviation safety.
The determinations of all delegates exercising the Secretary’s functions or powers are informed by the technical assessments of Airservices and the Department of Defence (if the LFA is a joint-user airport), and the safety advice of CASA. Subsection 17(3) requires Delegates exercising the Secretary’s functions or powers to refuse an application if CASA advises that carrying out the proposed controlled activity would have an unacceptable effect on the safety of existing or future air transport operations into or out of the airport or if the AOC for the LFA does not support the application. Sections 24 and 25 provides details of an applicant’s right to merits review for decisions that are made by persons who are, or are not, government officials. Subsection 26(3) also provides that a delegate (under subsection 26 (1) or (2)) must comply with any written directions of the Secretary under subsection 26(4). Subsection 26(4) enables the Secretary to give written directions to delegates for the purposes of subsection 26(3).

Part 8—Transitional provisions

Division 1—Provisions relating to this instrument as originally made

Part 8 outlines provisions which enable the transition from the 1996 Regulations to the Regulations.
Applications to carry out a controlled activity or for the declaration of airspace that are brought forward on or after 1 April 2026 must be submitted, and a determination relevant to that application be made, under the Regulations.

Section 27 - Transitional provision—applications for controlled activities

Section 27 provides that if an application to carry out a controlled activity is submitted under the 1996 Regulations prior to the commencement of the Regulations, a determination on that application may be issued under the 1996 Regulations, including after the Regulations has commenced. For decisions to be made under the 1996 Regulations after 1 April 2026, the Secretary’s Instruments delegating powers to an employee of the department or an employee of an AOC of a LFA under regulation 18 of the 1996 Regulations remain in-force, unless otherwise revoked.

Section 28 - Transitional provision—declarations of prescribed airspace

Section 28 provides that any declaration of prescribed airspace that was in force under regulation 5 prior to the commencement of the Regulations, remains in-force as if it has been made under section 9 of the Regulations. As such, section 28 allows for the continued protection of prescribed airspace in the interests of safety, efficiency or regularity of air transport operations now and into the future.

Details of the Airports (Protection of Airspace) Legislation (Repeals and Consequential Amendments) Regulations 2026

Section 1 - Name

Section 1 specifies the name of the Repeals and Consequential Amendments Regulations is the Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026.

Section 2 - Commencement

Section 2 provides details of when the provisions of the Repeals and Consequential Amendments Regulations commence.

Section 3 - Authority

Section 3 specifies that the Airports Act 1996 and the Civil Aviation Act 1988 provide authority for the Repeals and Consequential Amendments Regulations.
The latest versions of these Acts are availiable on the Federal Register of Legislation (https://www.legislation.gov.au/).

Section 4 - Schedules

Section 4 includes schedules that specify each instrument, and the relevant section of that instrument, that is to be amended or repealed by the Repeals and Consequential Amendments Regulations.

Schedule 1—Amendments

Part 1—Main amendments

This part outlines regulations amended by this instrument.

Airports Regulations 2024

Item 1 – Paragraph 15(1)(a)

This item amends the identified paragraph in the Airports Regulations 2024 by omitting references to “OLS or PANS-OPS surfaces” and substituting the references to “OLS or TIFPOP surfaces”.

Item 2 – Subsection 15(3)

This item repeals the identified subsection in the Airports Regulations 2024 and substitutes a new subsection which provides definitions of the terms “OLS” and “TIFPOP surface”.

Item 3 - Application of amendments – airport master plans

This item inserts text into the appropriate position in Part 8 of the Airports Regulations 2024 to explain that the amendments in items 1 and 2 of the Repeals and Consequential Amendments Regulations apply in relation to a draft master plan for an airport given to the Minister under section 81 or 81A of the Act on or after the commencement of this item and a final master plan that comes into force under section 83 of the Act on or after the commencement of this item, where the draft master plan was given to the Minister on or after that commencement.

Civil Aviation Safety Regulations 1998

Item 4 – Paragraph 139.015(b)

This item omits the reference to the 1996 Regulations in the identified paragraph in the Civil Aviation Safety Regulations 1998 and substitutes a new reference to the Regulations.

Item 5 – Regulation 139.185 (paragraph (c) of note)

This item omits the reference to the 1996 Regulations in the identified paragraph in the Civil Aviation Safety Regulations 1998 and substitutes a reference to the Regulations.

Part 2 – Other amendments

This part outlines other regulations to be amended by this instrument.

Airports Building Control) Regulations 2025

Item 6 – Paragraph 22(b)

This item omits the words “the airport-lessee company for the airport, or the Secretary” in the identified paragraph of the Airports (Building Control) Regulations 2025 and substitutes it with the words “the Secretary”.

Schedule 2 - Repeals

Airports (Protection of Airspace) Regulations 1996

Item 1 – The whole of the instrument

This item repeals the whole of the identified instrument. The Regulations replace the 1996 Regulations. Part 8 of the Regulations preserves the effect of the 1996 Regulations to the extent necessary.

Attachment B

Statement of Compatibility with Human Rights

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

Airports Act 1996

Airports (Protection of Airspace) Regulations 2026

Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026

These Disallowable Legislative Instruments are 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 Instruments

Leased Federal Airports[2] (LFAs) are nationally significant economic and transport infrastructure assets. Airspace architecture and its protection is complex and designed coherent with the International Civil Aviation Organization’s (ICAO’s) Standards and Recommended Practices (SARPs) in Annex 14 to the Convention on International Civil Aviation, which are incorporated into Australian legislation through the Civil Aviation Safety Regulations 1988 where appropriate.

The Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026 set out the necessary repeals and consequential amendments associated with making the Regulations.

LFA sites are Commonwealth land situated adjacent to or within areas where state, territory and local governments are responsible for land-use planning and development. While the safety, efficiency or regularity of air transport operations into and out of the airport are the fundamental considerations, the Regulations support land-use planning and development outcomes that are compatible with airport operations.

The Regulations have been drafted to:

ensure a fit-for-purpose regulatory regime with a continued focus on the safety, efficiency or regularity of air transport operations into and out of LFAs
accord with ICAO’s Annex 14 aims and objectives for safety, efficiency or regularity of existing and future air transport operations
provide continued safe, efficient or regular air transport operations that enhance existing and future aviation networks and support a sustainable aviation sector, and
streamline and improve the efficiency of assessment and decision-making processes for applications to undertake an activity that would result in an intrusion into prescribed airspace.

Human rights implications

These Disallowable Legislative Instruments engage the following rights:

the Instruments positively and negatively engage article 14 of the International Covenant on Civil and Political Rights
the Instruments negatively engage article 17 of the International Covenant on Civil and Political Rights
the Instruments positively engage article 7 of the International Covenant on Economic, Social and Cultural Rights
the Instruments positively and negatively engage article 11 of the International Covenant on Economic, Social and Cultural Rights, and
the Instruments negatively engage article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights.

International Covenant on Civil and Political Rights

Article 14 - The right to justice (including presumption of innocence)

The right to justice is negatively engaged, by imposing strict liability for infringements under Part 12 of the Airports Act 1996, as implemented under these Disallowable Legislative Instruments. However, these strict liability offences are in line with expectations set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, published by the Attorney-General’s Department.

Strict liability is reasonable in the interest of ensuring public safety and the operational integrity of aviation through the enforcement of infringements under Part 12 of the Airports Act 1996. Unauthorised intrusions into prescribed airspace could endanger human lives and cause disruptions to the aviation sector and national economy. Imposing strict liability ensures strong compliance incentives and reduces the risk of harm caused by inadvertent or deliberate violations.

Article 17 – The right to privacy and quiet enjoyment of property

The right to privacy is negatively engaged by these Instruments, as they set out processes that may require the collection of personal information from individuals and corporate entities who make applications and seek permissions under the Instruments. The Secretary (or delegate) may also require further information related to a controlled activity application to determine an application. Application information may be shared with agencies such as an Airport Operator Company of an LFA, the Civil Aviation Safety Authority, Airservices Australia or the Department of Defence. However, the collection of personal information is proportionate to achieve the policy objectives of the Instruments and is compliant with the Privacy Act 1988.

The right to quiet enjoyment of property is also negatively engaged, as compliance with these Instruments may impact property use, requiring individuals or corporate entities to seek approval, as well as comply with any conditions of an approval, for controlled activities into airspace, prior to undertaking those activities. These measures are proportionate, applying only to areas within prescribed airspace and requiring approvals, rather than outright prohibitions.

International Covenant on Economic, Social and Cultural Rights

Article 7 – The right to safe and healthy working conditions

The right to safe and healthy working conditions is positively engaged through the policy intent of these Instruments by providing for the protection of airspace in the interests of aviation and public safety. By regulating activities that, if carried out, would intrude into prescribed airspace such as crane operations or construction, the Instruments reduce risks associated with potential collisions or interference with air transport operations. These measures help prevent accidents and injuries to humans, including through safeguarding activities intruding into airspace as well as air transport operations, thereby promoting a safer working environment.

Article 12 – The right of everyone to the enjoyment of the highest attainable standard of physical and mental health

The right to health is negatively engaged whereby restrictions may be placed on building heights or certain facilities where hospitals or health centres may be located, potentially reducing health accessibility. However, this restriction is reasonable and proportionate as the Instruments also positively engage this right by preventing interferences with aviation safety, which could have an adverse impact on the enjoyment of the highest attainable standard of physical and mental health.

Article 15(1)(a) – The right to take part in cultural life

The right to take part in cultural life is negatively engaged by regulating the conduct of commercial activity on the traditional lands of Indigenous Australians. However, these restrictions are reasonable as they only apply where commercial activity on traditional lands would conflict with the safety, efficiency or regularity of existing or future air transport operations into and out of an airport.

Conclusion

These Disallowable Legislative Instruments are compatible with human rights because they positively promote and engage some rights. To the extent that the engagement is negative and limits human rights, those limitations are reasonable, necessary and proportionate to achieving the objective of safe, efficient or regular aircraft operations at LFAs.

The Honourable Catherine King MP

Minister for Infrastructure, Transport, Regional Development and Local Government

[1] Leased Federal Airports are: Adelaide, Alice Springs, Archerfield, Bankstown, Brisbane, Camden, Canberra, Darwin, Essendon Fields, Gold Coast, Hobart, Jandakot, Launceston, Melbourne (Tullamarine), Moorabbin, Mt Isa, Parafield, Perth, Sydney (Kingsford Smith), Tennant Creek, Townsville and Western Sydney International (Nancy-Bird Walton).

[2] Leased Federal Airports are: Adelaide, Alice Springs, Archerfield, Bankstown, Brisbane, Camden, Canberra, Darwin, Essendon Fields, Gold Coast, Hobart, Jandakot, Launceston, Melbourne (Tullamarine), Moorabbin, Mt Isa, Parafield, Perth, Sydney (Kingsford Smith), Tennant Creek, Townsville and Western Sydney International (Nancy-Bird Walton).

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

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