Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 08/23 – Directions – TRAs and TDAs outside Australian Territory – Instrument 2023 (No. 1)
Purpose
The primary purpose of this direction instrument is to urgently facilitate the expeditious declaration of emergency or other short-notice temporary restricted areas (TRAs) in Australian-administered airspace outside Australian territory, or outside and straddling Australian territory (external TRAs).
The need for emergency or short-notice external TRAs to which the direction might apply is present and ongoing. It typically arises when there is unexpected, but unavoidable, temporary air traffic controller absence from an air traffic control (ATC) Group responsible for air traffic control in a particular segment of Australian-administered airspace. In these circumstances, for immediate safety purposes, controlled aircraft separation in Group airspace is replaced with an urgent TRA instrument imposing traffic information broadcast by aircraft (TIBA) procedures to preserve aircraft separation.
The direction instrument also facilitates the expeditious declaration of TRAs when temporary military exercises are planned involving offshore airspace, or when offshore rocket launch activities are to be undertaken.
The direction instrument also facilitates the expeditious declaration of temporary danger areas (TDAs) in Australian-administered airspace outside Australian territory (external TDAs).
The instrument applies only to Australian-registered aircraft.
Australian-administered airspace
Australian-administered airspace is airspace allocated to Australia by the International Civil Aviation Organization (ICAO) under the Chicago Convention and for which Australia has accepted responsibility.
Australian-administered airspace includes the airspace over Australian territory and significant volumes of international airspace around Australia, some of which straddles Australian territory and international airspace. Australian territory includes external Territories, territorial seas and related airspace.
Legislation — declaration designating airspace
Section 15 of the Airspace Act 2007 (the As Act) provides that the Governor-General may make regulations for the As Act.
Under subsection 11(1) of the As Act, the regulations may confer functions and powers on CASA in connection with the administration and regulation of Australian-administered airspace.
Under subsection 11(2) of the As Act, the regulations may make provision for, and in relation to, various matters, including the designation of volumes of Australian-administered airspace for the purposes of restricting access to, or (because of danger) warning about access to, that airspace.
For this purpose, under subregulation 6(1) of the Airspace Regulations 2007 (the AsR), CASA may make a declaration designating an area of Australian territory (up to the 12 nautical miles sea boundary) to be a prohibited, restricted or danger area.
Under subregulation 6(2) of the AsR, CASA must not declare a prohibited area unless, in the opinion of CASA, it is necessary for reasons of military necessity to prohibit the flight of aircraft over the area.
Under subregulation 6(3) of the AsR, CASA must not declare a restricted area unless, in the opinion of CASA, it is necessary in the interests of public safety (including the safety of aircraft in flight), or for the protection of the environment, or for security, to restrict the flight of aircraft over the area to aircraft flown in accordance with specific conditions.
Under subregulation 6(4) of the AsR, CASA must not declare a danger area unless, in the opinion of CASA, there exists within or over the area an activity that is a potential danger to aircraft flying over the area.
Under subregulation 6(6) and regulation 7 of the AsR, the declaration does not take effect until it is published in the Aeronautical Information Publication (the AIP) (for a declaration that is to have effect for longer than 3 months) or in a Notice to Airmen (NOTAM) (for declarations of lesser duration). Under subregulation 6(7) of the AsR, the declaration ceases to have effect on the day, event or circumstances specified in the declaration.
Under subregulations 9(2) and (3) of the AsR, if an area of Australian territory has been declared under regulation 6 to be a restricted area or danger area, CASA may make a determination that the air traffic services (ATS) to be provided for the relevant airspace are services that are at variance with the ATS that would otherwise be provided, and cause details of the services provided to be published in the AIP or NOTAM.
Legislation — directions
Section 98 of the Civil Aviation Act 1988 (the CA Act) empowers the Governor-General to make regulations for the CA Act and the safety of air navigation.
Under subregulation 11.245(1) of the Civil Aviation Safety Regulations 1998 (CASR), for subsection 98(5A) of the CA Act, the Civil Aviation Safety Authority (CASA) may, by instrument, issue a direction about, among other things, any matter affecting the safe navigation and operation of aircraft.
Under subregulation 11.245(2), CASA may issue such a direction: only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation; and only if the direction is not inconsistent with the CA Act; and only for the purposes of CASA’s functions.
Under regulation 11.250, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255(1), it is an offence to contravene a direction under regulation 11.245 that is applicable to the person.
Under subregulations 2C(1) and 3(2) of the Civil Aviation Regulations 1988 (CAR), regulation 11.245 has, in effect, the exterritorial application that regulation 6 of the AsR lacks.
Aviation safety
As noted above, although Australia has responsibility for ICAO-allocated Australian-administered international airspace, subregulation 6(1) of the AsR limits CASA’s powers to declare restricted areas or danger areas, temporary or otherwise, to Australian territory only.
It is expected that before the end of 2023, the AsR will be amended to remove the need for the direction instrument to support TRA and TDA instruments for Australian-administered airspace outside Australian territory.
In the meantime, however, aviation safety requires this relevant international airspace to be effectively managed through some lawful mechanism allowing temporary declarations of restricted or danger areas as the need arises.
Chicago Convention
While safety restrictions may be imposed (a) on any aircraft flying inside Australian territory, and (b) on any Australian-registered aircraft flying outside Australian territory, the Chicago Convention does not permit Australia to have or enforce any flight restrictions on foreign registered aircraft in international airspace.
The problems to be addressed
The direction instrument, having enforceable extraterritorial application, is primarily intended as an emergency or short-notice measure to address the 3 issues described above, namely:
- the current absence of power, under regulation 6 of the AsR, to declare TRAs or TDAs in Australian-administered airspace outside Australian territory
- the need that nevertheless exists to proclaim and regulate such areas, in particular on an emergency or short-notice basis in the interests of aviation safety
- the prohibition, under the Chicago Convention and CAR, on restricting the flight of foreign registered aircraft in relevant international airspace, that is, Australian‑administered airspace outside Australian territory.
Whether for TIBA procedures, rocket launches or military exercises, often relevant airspace will straddle Australian territory and international airspace in circumstances in which, in the description of the airspace, there is no disaggregation of coordinates into those for airspace over Australian territory, and those for international airspace. Consequently, a TRA or TDA instrument may appear to declare a TRA or TDA in relevant international airspace.
By virtue of the “reading down to validity” perseveration powers under section 15A of the Acts Interpretation Act 1901, such inclusions will not affect the validity of a TRA or TDA instrument in its application to any aircraft in airspace over Australian territory.
The direction instrument will complement the TRA or TDA instrument by directing the operator of an Australian-registered aircraft outside Australian territory to comply with any expressed extraterritorial application of the TRA or TDA instrument “as if” it applied to that operator. Consistent with ICAO requirements, there would, of course, be no application to foreign registered aircraft outside Australian territory.
The direction instrument
The direction instrument addresses these issues. It commences on the day after it is registered and is repealed at the end of 30 November 2023, by which time the AsR will have been amended to remove the need for the direction. The details of the direction instrument are set out in Appendix 1.
Legislation Act 2003 (the LA)
Directions under subregulation 11.245(1) of CASR are “for subsection 98(5A)” of the CA Act, that is, for regulations which empower the issue of certain instruments, like directions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The direction instrument is clearly in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98(5AA) of the CA Act, a direction issued under paragraph 98(5A)(a), for such matters, is a legislative instrument if it is expressed to apply in relation to a class of persons or a class of aircraft.
The directions apply to the class of aircraft, operators, and pilots in command who may fly in Australian-administered airspace outside Australian territory and it is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
Sunsetting
Under item 5 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015, an instrument relating to aviation safety made under regulation 6 or 9 of the AsR is, in effect, exempted from the sunsetting provisions under Part 4 of Chapter 3 of the LA.
Under item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015, a direction instrument relating to aviation safety made under regulation 11.245 of CASR is, in effect, exempted from the sunsetting provisions under Part 4 of Chapter 3 of the LA.
Being such an aviation safety instrument, the direction instrument is, therefore, exempted from the sunsetting provisions. In policy terms, this exemption is necessary because the instrument deals with safety matters that, once identified, require a risk response or treatment plan which may require a high degree of certainty in the interests of aviation safety.
Incorporations by reference
Under subsection 98(5D) of the CA Act, the direction instrument may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time, or from time to time.
A non-legislative instrument may be incorporated into a legislative instrument made under the CA Act, as that non-legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).
Under paragraph 15J(2)(c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained.
Relevant TRA and TDA instruments as they exist from time to time are applied, adopted or incorporated into the direction instrument.
In general terms, TRAs and TDAs, made under regulation 6 of the AsR, are not legislative instruments by virtue of paragraph (a) of item 1 of regulation 7 of the Legislation (Exemptions and Other Matters) Regulation 2015. This is because they deal with safety matters that, once identified, require a risk response or treatment plan which requires a high degree of certainty in the interests of aviation safety.
When TRAs or TDAs are made, they are expressed to operate subject to the direction instrument. They must also be NOTAM’ed (proclaimed in a formal notice to aviators) and relevant NOTAM notices also reference the direction instrument.
Although they are non-legislative instruments, despite section 14 of the LA, TRA and TDA instruments may be applied, adopted or incorporated into the legislative direction instrument as they are in force or exist from time to time, by virtue of subsection 98(5D) of the CA Act which expressly allows this.
Consultation
Under section 16 of the CA Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial, consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable, in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
There has been informal consultation with agencies likely to be impacted by the direction instrument, namely, the Department of Defence, and Airservices Australia.
Because the operation of the direction instrument is predicated upon the likely, but often unforeseeable, need for offshore TIBAs, it is not possible to identify and consult with the range of aircraft operators who may be planning, at some time in the future, to be in particular airspace that may be referenced in a TRA or TDA instrument.
CASA is satisfied that the nature, extent, and duration of the consultation it has conducted was appropriate and that no further consultation would be appropriate or necessary in these circumstances.
Office of Impact Analysis (OIA)
Consistent with OIA Guidance, an Impact analysis (IA) is not required for the direction instrument because it is a machinery direction which does not substantially alter existing arrangements and is required under the CA Act and the relevant regulations for the purposes of, and in the course of, their administration by CASA (OIA id: 14507).
Sector risk, economic and cost impact
Economic and cost impact
Subsection 9A(1) of the CA Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the CA Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), 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.
Australian-registered aircraft have long been subject to certain offshore airspace access controls. Consistent with the Chicago Convention, foreign registered aircraft are not so subject, but in practice they generally observe the access controls in the interests of aviation safety rather than alter existing practices and routes. Operators are generally familiar with TRA and TDA requirements, and operations are adjusted to them without any significant objections or impacts.
Sector risks
There are no increased, or differential, sector risks arising from the instrument.
Regional and remote Australia impacts
The Minister’s Statement of Expectations for the CASA Board states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”.
There are no identified regional and remote impacts that differ in any material way from the general economic and cost impacts described above.
Environmental impact
Under subsection 9A(2) of the CA Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any specific negative environmental impacts as a result of the instrument. Thus, the instrument as such will have no specific new effects on the environment.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the HR Act). The direction instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the HR Act and, to the extent that it engages relevant rights, it does so in a reasonable, necessary and proportionate way to promote relevant rights to life, to work and to safe and healthy working conditions.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73(2) of the CA Act. It commences on the day after it is registered.
Appendix 1
CASA 08/23 – Directions – TRAs and TDAs outside Australian Territory – Instrument 2023 (No. 1)
1 Name
This section names the instrument
2 Duration
This section provides for the instrument’s commencement and repeal.
3 Definitions
This section provides definitions for some key words and expressions in the instrument
4 Directions for temporary restricted areas and temporary danger areas outside Australian territory
Under this section, if an instrument (a TRA or TDA instrument) is issued by CASA’s Office of Airspace Regulation (OAR), is expressed as made under either or both of regulations 6 and 9 of the AsR, and purports to create 1 or more temporary restricted areas or temporary danger areas in Australian-administered airspace outside Australian territory (an external TRA or TDA), then the operator of an Australian‑registered aircraft must comply with the requirements of the TRA or TDA instrument and its conditions (if any) as if they applied to the operator, while the aircraft is in the external TRA or TDA.
A Note explains that this section applies whether or not the TRA or TDA instrument also creates temporary restricted areas or temporary danger areas inside Australian territory. Such instruments for temporary areas inside Australian territory are separately valid and enforceable as applicable under section 15A of the Acts Interpretation Act 1901 (being non-legislative instruments), and regulations 6 and 16 of the AsR.
A second Note explains that it is an offence under regulation 11.255 of CASR to contravene the direction in section 4.
A third Note explains that there is no requirement for a separate subsection to deal with foreign registered aircraft. If a TRA or TDA instrument creates a TRA or TDA inside Australian territory, then the instrument applies to foreign registered aircraft by force of section 6 of the AsR.
However, if a TRA or TDA instrument purports to create 1 or more temporary restricted areas or temporary danger areas in Australian-administered airspace outside Australian territory (an external TRA or TDA), under the Chicago Convention, as applied by subsection 3(3) of the Civil Aviation Regulations 1988, the direction instrument has no application to foreign registered aircraft.
For an external TRA or TDA as applied by the direction instrument, the operator of a foreign registered aircraft is not required to comply with the requirements (if any) of the instrument while the aircraft is in the external TRA or TDA. However, CASA strongly recommends that such operators should comply in the interests of aviation safety, given that the relevant reasons for the declaration of the external TRA or TDA may constitute a threat to aviation safety.
A fourth Note explains that TDA instruments are advisory warning instruments and do not restrict flight in any airspace for any aircraft. However, CASA strongly recommends that all operators should comply with any requirements or advice in a TDA instrument in the interests of aviation safety, given that the relevant reasons for the declaration of the TDA may constitute a threat to aviation safety.
5 Direction – Airservices Australia – Air Traffic and Aeronautical Information Services
Under this section, for aircraft operating in, or in the airspace adjacent to, an external TRA or TDA of a kind mentioned in section 4, Airservices Australia must, as far as practical, provide air traffic services (ATS) and aeronautical information services in accordance with the conditions (if any) expressed in the TRA or TDA instrument that is for the area, as if the area were a declared restricted area or a declared danger area (as applicable).
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 08/23 – Directions – TRAs and TDAs outside Australian Territory – Instrument 2023 (No. 1)
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 legislative instrument
The primary purpose of this direction instrument is to urgently facilitate the expeditious declaration of emergency or other short-notice temporary restricted areas (TRAs) in Australian-administered airspace outside Australian territory, or outside and straddling Australian territory (external TRAs).
The need for emergency or short-notice external TRAs to which the direction might apply is present and ongoing. It typically arises when there is unexpected, but unavoidable, temporary air traffic controller absence from an air traffic control (ATC) Group responsible for air traffic control in a particular segment of Australian-administered airspace. In these circumstances, for immediate safety purposes, controlled aircraft separation in Group airspace is replaced with an urgent TRA instrument imposing traffic information broadcast by aircraft (TIBA) procedures to preserve aircraft separation.
The direction instrument also facilitates the expeditious declaration of TRAs when temporary military exercises are planned involving offshore airspace, or when offshore rocket launch activities are to be undertaken.
The direction instrument also facilitates the expeditious declaration of temporary danger areas (TDAs) in Australian-administered airspace outside Australian territory (external TDAs).
The instrument applies only to Australian-registered aircraft.
Human rights implications
The direction instrument may engage the following human rights:
- the right to freedom of movement in the air under Article 12 of the International Covenant on Civil and Political Rights (the ICCPR)
- the right to life under Article 6 of the ICCPR
- the right to work under Article 6(1) and the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR).
Right to freedom of movement in the air
The instrument may engage this right for Australian-registered aircraft operators by making access to certain TRAs conditional. However, to ensure conformity with the Chicago Convention, the right is not engaged for foreign registered aircraft in relevant international airspace.
The right is engaged in the interests of the safety of air navigation because of the potential risks arising from emergency or short-notice TIBAs, rocket launches or military exercises in relevant airspace. The condition restricting access to a TRA area, namely, to conform to TIBA listening watch and broadcast requirements, is not onerous and is relatively easily complied with.
Right to life under the ICCPR
Right to work and to safe and healthy working conditions under the ICESCR
The instrument may engage these rights. This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework, including in the instrument, is to uphold aviation safety by prescribing appropriate safety rules and practices.
It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote and enhance aviation safety. The instrument promotes the right to life under Article 6 of the ICCPR by legislating for the safe use of threatened or potentially dangerous airspace.
As a consequence of the foregoing, for Article 7 of the ICESCR, the direction instrument will also promote the right to safe and healthy working conditions for pilots of aircraft in the relevant airspace.
For the right to work under Article 6(1) of the ICESCR, the instrument will require aircraft operators and pilots in command to observe the requirements and conditions of TRA instruments. This is reasonably required in the interests of aviation safety, is not an unduly onerous obligation, and it is not expected to result in any change of actual flying practices from those previously followed.
Human rights implications
The direction 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.
To the extent that the instrument does engage any of the applicable rights or freedoms, it does so either out of necessity in the interests of aviation safety, or positively to promote the right to life under the ICCPR and the right to safe and healthy working conditions under the ICESCR. Any relevant engagement is considered to be reasonable, necessary and proportionate to the risks the instrument seeks to address.
Conclusion
This legislative instrument is compatible with human rights, and to the extent that it engages relevant rights, it does so in a reasonable, necessary and proportionate way.
Civil Aviation Safety Authority