Explanatory Statement
Airspace Regulations 2007
Repeal – determination of controlled aerodrome – Port Hedland
Purpose
The purpose of this instrument is to repeal instrument CASA OAR 061/13, which determines that Port Hedland aerodrome is a controlled aerodrome. CASA OAR 061/13 would have commenced on 13 November 2014 if it was not repealed.
Legislation
Section 15 of the Airspace Act 2007 (the Act) provides that the Governor-General may make regulations for the Act.
Under subsection 11 (1), the regulations may confer functions and powers on CASA in connection with the administration and regulation of Australian-administered airspace.
Under paragraph 11 (2) (g), the regulations may make provision for, and in relation to, the determination of controlled aerodromes.
Under subregulation 5 (1) of the Airspace Regulations 2007 (the AsR 2007), CASA may, in writing, make various determinations about the aviation status of aerodromes and the airspace for whose management Australia has responsibility under the Chicago Convention.
Under paragraph 5 (1) (e) in particular, CASA may determine that an aerodrome is a controlled aerodrome.
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
CASA conducted an aeronautical study of Port Hedland in 2011. Following analysis of data, it was recommended that Airservices Australia (AA) prepare strategies for Port Hedland aerodrome to become a controlled aerodrome with associated change to the airspace classification.
Subsequent to the release of this report, CASA received updated information on Port Hedland aerodrome infrastructure developments. Additionally, CASA acquired a fast time simulation tool which was used to analyse air traffic movements. The results were published in a supplementary report in 2012. It was concluded that a Class D air traffic control (ATC) service was an appropriate mitigator against the risks identified during the analysis.
In January 2013, in response to the findings of the Port Hedland aeronautical study and supported by the additional analyses in the supplementary report, AA informed CASA that it intended to introduce Class D ATC services at Port Hedland in November 2014.
CASA made instrument CASA OAR 061/13, which was registered on 20 June 2013 and was to commence on 13 November 2014. That instrument would have determined that Port Hedland aerodrome was a controlled aerodrome.
At the time of the aeronautical study in 2011, traffic and passenger numbers were expected to continue to rise. However, updated movement data provided by AA indicates that movements have declined since the study was conducted. CASA has reviewed and validated the data provided by AA.
AA has requested CASA to review its determination that Port Hedland aerodrome be established as a controlled aerodrome. In light of the updated data and the consultations with industry discussed below, CASA has decided to repeal instrument CASA OAR 061/13.
Legislative Instruments Act
Under section 5 of the Legislative Instruments Act 2003 (the LIA), a written instrument is a legislative instrument if it is of a legislative character and is made under a power delegated by the Parliament. In effect, an instrument is taken to be of a legislative character if it makes new law (rather than applying existing law to a case) and in doing so affects rights, privileges or obligations.
CASA OAR 061/13 was, therefore, a legislative instrument. It was subject to registration, and to tabling in the Parliament, under sections 24 and 38 of the LIA respectively. However, under items 1B and 3 of Schedules 2 and 3, respectively, of the Legislative Instruments Regulations 2004, a determination relating to aviation safety made under regulation 5 of the AsR 2007 is not subject to either disallowance or sunsetting.
Under subsection 33 (3) of the AIA, this instrument is likewise subject to registration and tabling in the Parliament, but is not subject to disallowance or sunsetting. Under section 48A of the LIA, this instrument is repealed on the day after registration.
Consultation
Consultation under section 17 of the LIA was undertaken with AA in relation to the preliminary determination that Port Hedland will be a controlled aerodrome from 13 November 2014. That consultation took into account the aeronautical study carried out by CASA of the development of Port Hedland aerodrome and the growth of air traffic at that aerodrome.
In May 2014, AA provided CASA with updated movement data and a qualitative risk assessment of Port Hedland, and proposed that Port Hedland aerodrome remain an uncontrolled aerodrome.
CASA staff attended industry meetings in Perth and northern Western Australia where discussions on Port Hedland were conducted. Feedback from major airlines and fly in/fly out operators was that the provision by AA of an aerodrome flight information service at Port Hedland had mitigated risks sufficiently and that introduction of an ATC service was unnecessary at this time.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
The instrument repeals a determination that has not yet commenced. Therefore, the instrument does not alter existing arrangements. The instrument is, in effect, an approval for the aerodrome to remain a non-controlled aerodrome. In these circumstances, 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: 14507).
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 Act.
The instrument commences on the day of registration. Under section 48A of the LIA, this instrument is repealed on the day after registration.
[Instrument number CASA 193/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal – determination of controlled aerodrome – Port Hedland
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 legislative instrument repeals a determination that Port Hedland aerodrome is a controlled aerodrome.
The primary purpose of the legislative instrument is to allow Port Hedland aerodrome to remain an uncontrolled aerodrome.
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