Explanatory Statement
Civil Aviation Regulations 1988
CASA 04/21 — CASA 490/05 Amendment Instrument 2021 (No. 1)
Purpose
The purpose of CASA 04/21 — CASA 490/05 Amendment Instrument 2021 (No. 1) (the instrument) is to amend instrument number CASA 490/05, Designation of airspace for broadcast requirements — aerodromes with certified air/ground radio services (CASA 490/05) to expand the designated broadcast area, for Ballina/Byron Gateway aerodrome (Ballina aerodrome), in which broadcast requirements apply under section 99A of the Civil Aviation Regulations 1988 (CAR).
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 CAR.
Under subregulation 2 (1) of CAR, the term non-controlled aerodrome is defined to mean an aerodrome at which an air traffic control service is not operating. Also, under the subregulation, the term air traffic control service is defined to mean a service provided for the purpose of:
(a) preventing collisions:
(i) between aircraft; and
(ii) on the manoeuvring area between aircraft and obstructions; and
(b) expediting and maintaining an orderly flow of air traffic.
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), 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.
CASA has given these types of directions under sections 3 and 4 of CASA 490/05.
Under subregulation 99A (5), a pilot in command of an aircraft 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.
Overview of instrument
To address safety or operational requirements, CASA may require the pilot in command of an aircraft operating in the designated area for a non-controlled aerodrome to make radio broadcasts using a common frequency.
Ballina aerodrome is a non-controlled aerodrome with a certified air/ground radio service. CASA has, under section 2 of CASA 490/05, designated an area of airspace in the vicinity of the aerodrome as being a designated area.
CASA is aware of instances in which the pilots in command of aircraft operating in the vicinity of the aerodrome are not making the required radio broadcasts, which makes it difficult for the pilots in command of other aircraft to maintain situational awareness of aircraft operations in the vicinity of the aerodrome. CASA is, under the instrument, expanding the designated area for the aerodrome to enhance the radio communications of aircraft operating in the area. The objective is to reduce the incidences of unknown aircraft engaged in Visual Flight Rules (V.F.R.) flights conflicting with regular public transport, and other V.F.R., aircraft, and thereby minimise residual airspace risk in the vicinity of the aerodrome.
In accordance with subsection 33 (3) of the AIA, the instrument amends CASA 490/05 accordingly.
Content of instrument
Amendment 1 of Schedule 1 to the instrument replaces the description in clause 3 of Schedule 1 to CASA 490/05 of the horizontal limits of the designated area for Ballina aerodrome. This has the effect of expanding the area.
Legislation Act 2003 (the LA)
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends, or repeals, another legislative instrument. The instrument amends CASA 490/05, which was registered as a legislative instrument. Therefore, the instrument is also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA consulted with airlines servicing Ballina aerodrome, local stakeholders and Airservices Australia in relation to the proposed amendment of CASA 490/05 and did not receive any objection to the amendment.
CASA is satisfied no further consultation is appropriate, or reasonably practicable, for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR, under which a RIS is not required (OBPR id: 24429).
Sector risk, economic and cost impact
Subsection 9A (3) of the Act states that subject to regarding the safety of air navigation as the most important consideration, in developing and promulgating aviation safety standards under paragraph 9 (1) (c) of the Act, CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
Pilots in command of aircraft flying through the expanded designated area for Ballina aerodrome, without landing at the aerodrome, will need to make radio broadcasts under CASA 490/05, when they were previously not required to. CASA has identified a small volume of airspace within the expanded area in which a fly-through may happen. A fly-through in this volume of airspace will require the carriage of a radio on the aircraft, to enable the radio broadcasts to be made, when previously such carriage was not required. CASA has considered the cost impact on the limited number of affected aircraft operators, and believes this cost impact is offset by the need to maintain the safety of air navigation in the vicinity of the aerodrome.
Pilots in command of aircraft intending to land at, or take off from, the aerodrome remain subject to the same requirements stated in CASA 490/05, albeit within the expanded designated area for the aerodrome. There are no significant differential safety risks or impacts by industry sector.
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. The 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
The 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.
The instrument commences on 28 January 2021 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 04/21 — CASA 490/05 Amendment Instrument 2021 (No. 1)
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 the legislative instrument is to amend instrument number CASA 490/05, Designation of airspace for broadcast requirements — aerodromes with certified air/ground radio services to expand the designated broadcast area, for Ballina/Byron Gateway aerodrome, in which broadcast requirements apply under section 99A of the Civil Aviation Regulations 1988.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority