Explanatory Statement
Civil Aviation Regulations 1988
CASA 03/19 — Repeal of CASA 178/10 Instrument 2019
Purpose
The purpose of instrument CASA 03/19 — Repeal of CASA 178/10 Instrument 2019 is to repeal CASA 178/10 – Designation – Class E airspace at Avalon for VFR broadcasts; Directions – VFR broadcasts and frequency for Avalon ATC tower hours.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Regulations 1988 (CAR).
Under paragraph 99A (1) (b) of CAR, the Civil Aviation Safety Authority (CASA) may designate airspace within defined horizontal and vertical limits as an area (a designated area) in which broadcast requirements apply.
Under subregulation 99A (3) of CAR, CASA may give directions specifying:
(a) the broadcast requirements that apply; and
(b) the radio frequency on which broadcasts must be made;
in a designated area.
Under subregulation 99A (5) of CAR, a pilot in command of an aircraft that is operating in a designated area must not contravene a direction that applies to the area. Subregulation 99A (6) states that an offence against subregulation (5) is an offence of strict liability.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Since 2010 Avalon aerodrome has operated as a Class D aerodrome, with a region of Class E airspace above and, to the north and south, lateral to the Class D control zone (CTR). Due to the surveillance requirements associated with this airspace configuration and equipment limitations at Avalon aerodrome, the air traffic management service in the Class D CTR is not provided by the Avalon air traffic control (ATC) tower on the local frequency, but rather by the Melbourne Terminal Control Unit (TCU) on the Avalon Approach (AV APP) frequency.
Traffic in the Class E airspace surrounding Avalon aerodrome is likewise managed by the Melbourne TCU on the AV APP frequency.
Overview of instrument
Instrument CASA 142/10 – Directions and determinations – Class D airspace (FRL ID F2010L01275) requires that before entering Class D airspace, and while in it, the pilot in command of an aircraft must establish 2-way radio communication with the relevant ATC tower. Relevant ATC tower, for this purpose, is defined as the ATC tower or other facility that provides ATC services for a particular Class D CTR, or its associated Class D airspace. For Avalon aerodrome the relevant ATC tower is the Melbourne TCU, and radio communications are broadcast on the AV APP frequency.
The instrument to be repealed, CASA 178/10, requires that before entering Class E airspace in proximity to Avalon aerodrome, and while in it, the pilot in command of an aircraft must establish 2-way radio communication on the local Avalon ATC tower frequency. This requirement was intended to mitigate risks arising from transiting or approaching traffic in Class E airspace listening to, and broadcasting on, a different frequency to that in use by Class D traffic in circumstances where ATC services are provided by the local ATC tower. Since the ATC services at Avalon aerodrome are provided by the Melbourne TCU on the AV APP frequency for traffic in both Class D and Class E airspace around Avalon aerodrome, CASA is repealing CASA 178/10 in accordance with subsection 33 (3) of the AIA.
Content of instrument
This instrument repeals CASA 178/10.
Legislation Act 2003 (the LA)
Under paragraph 10 (1) (d) of the LA, an instrument is a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument repeals CASA 178/10, which is a legislative instrument. Therefore, this instrument is also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA has consulted Airservices Australia, which supported the proposed repeal of CASA 178/10.
In these circumstances, and given the long-standing arrangements for management of air traffic at Avalon aerodrome using the AV APP frequency, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because this instrument is covered by standing agreements between CASA and OBPR under which a RIS is not required (OBPR id: 24429, 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
This instrument has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of the Civil Aviation Safety Regulations 1998.
This instrument commences on the day after it is registered, and is automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 03/19 — Repeal of CASA 178/10 Instrument 2019
The legislative instrument is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of this legislative instrument is to repeal instrument CASA 178/10 – Designation – Class E airspace at Avalon for VFR broadcasts; Directions – VFR broadcasts and frequency for Avalon ATC tower hours.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority