Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 33/22 — Interception of Civil Aircraft (CASA 73/17) Amendment Instrument 2022
Purpose
This instrument amends instrument CASA 73/17, which would otherwise expire at the end of 31 July 2022, to continue its operation in relation to foreign registered aircraft. The purpose of the amendments is to enable the enforcement after this date of procedural requirements established by international agreement to be followed by the pilot in command of a foreign registered aircraft operating in Australian territory under a foreign air transport AOC or New Zealand AOC with ANZA privileges, in the event of an aircraft interception by the Australian Defence Force or Australian Federal Police acting under the authority of the Commonwealth.
Regulation 91.695, inserted into the Civil Aviation Safety Regulations 1998 (CASR) by the Civil Aviation Safety Amendment (Part 91) Regulations 2018, commenced on 2 December 2021. Regulation 91.695, together with section 23.02 of the Part 91 Manual of Standards, now provide for the enforcement of specified procedures about interception of aircraft, set out in Annex 2 of the Chicago Convention, for aircraft other than foreign registered aircraft mentioned above. CASA 73/17 is amended also to provide consistency with regulation 91.695 and to update the drafting style.
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 CASR.
Section 3A of the Air Navigation Act 1920 provides for the approval of ratification of the Convention on International Civil Aviation (the Chicago Convention) of 1944.
Section 22 of the Act provides for the interception of an aircraft registered in Australia or operated by an Australian operator that is in flight over the territory of a foreign country.
Subpart 11.G of CASR provides for the Civil Aviation Safety Authority (CASA) to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.
Regulation 91.695 of CASR makes it an offence if an aircraft is intercepted by another aircraft and the pilot in command does not comply with requirements prescribed in the Part 91 Manual of Standards. Section 23.02 of the Part 91 Manual of Standards prescribes for this purpose, interception procedures set out in Annex 2 of the Chicago Convention. Under regulation 91.020, regulation 91.965 does not apply in relation to:
(a) a foreign registered aircraft that is operated in Australian territory under a foreign air transport AOC; or
(b) a foreign registered aircraft that is operated in Australian territory under a New Zealand AOC with ANZA privileges that is in force for Australia.
Under subsection 14 (1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14 (2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98 (5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Under subsection 33 (3) of the Acts Interpretation Act 1901, 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. Under subsection 13 (1) of the LA, subsection 33 (3) applies to legislative instruments as if each provision of the instrument were a section of an Act.
Overview of instrument
The amendments extend the operation of CASA 73/17, which would otherwise self‑repeal on 31 July 2022. Interception procedures for aircraft (other than foreign registered aircraft) are now dealt with under regulation 91.695 of CASR. The instrument removes aircraft that are now dealt with under Part 91 of CASR from the scope of CASA 73/17. However, it continues the effect of that instrument for foreign registered aircraft to which regulation 91.695 does not apply due to the effect of regulation 91.020 of CASR. Additionally, the instrument provides for the interception procedures to be referred to in a way consistent with section 23.02 of the Part 91 Manual of Standards (prescribed for the purpose of regulation 91.695). The instrument incorporates the interception procedures from their legal source, being Annex 2 to the Chicago Convention. The instrument also updates some matters of drafting style.
The amended instrument is necessary in order to continue to enforce compliance with the interception procedures in respect of foreign registered aircraft operating in Australian territory under a foreign air transport AOC, or under a New Zealand AOC with ANZA privileges. CASA considers that the amended instrument mitigates against any adverse risks to the safety of air navigation by ensuring that interception aircraft follow globally recognised procedures and limitations.
CASA intends to amend Part 91 at a later date to ensure regulation 91.695 of CASR applies to the foreign registered aircraft mentioned in regulation 91.020 of CASR.
Documents incorporated by reference
Under subsection 98 (5D) of the Act, the instrument may apply, adopt or incorporate any matter contained in any instrument or other writing. A non-legislative instrument may be incorporated into a legislative instrument made under the 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. Item [10] incorporates the following into CASA 73/17:
- ICAO Annex 2 – Appendix 1 – Signals – Section 2 – Signals for use in the event of interception;
- ICAO Annex 2 – Appendix 2 – Interception of Civil Aircraft, Attachment A – Interception of Civil Aircraft.
These documents are incorporated as in force from time to time, and contain the applicable procedures for the pilot in command of an aircraft that is intercepted during flight. Annex 2 to the Chicago Convention sets out general rules, visual flight rules and instrument flight rules and applies to a contracting State to the Chicago Convention.
Annex 2 is publicly available but subject to copyright that belongs to ICAO. As a copyright, commercial product, it is made available by ICAO for a fee (https://store.icao.int/). The cost of obtaining a copy of a document is a matter for the operator of the aircraft. CASA has no effective control over those costs. However, the Annex is made available by ICAO for viewing free of charge, at an online library at https://elibrary.icao.int/home.
Content of instrument
Section 1 provides that the title of the instrument is CASA 33/22 — Interception of Civil Aircraft (CASA 73/17) Amendment Instrument 2022.
Section 2 provides that the instrument commences at the time it is registered.
Section 3 provides that Schedule 1 in the instrument amends CASA 73/17, Direction — interception of civil aircraft in Australian territory.
Schedule 1
Item [1] amends the name of CASA 73/17, in line with updated drafting practices.
Item [2] inserts a citation provision that provides the instrument is CASA 73/17 — Civil Aircraft in Australian Territory (Interception) Direction 2017.
Item [3] extends the duration of the instrument to the end of 31 July 2025.
Item [4] inserts a note below the heading to the definitions section, explaining that certain terms and expressions in the instrument are defined in the Act or regulations.
Items [5] and [6] omit the definition of ENR 1.12 and insert a definition for ICAO Annex 2. The interception procedures were initially incorporated as published by Airservices Australia in AIP ENR 1.12. The incorporation of the interception procedures is changed under item [10] so that they are now incorporated from Annex 2 to the Chicago Convention, which is the legal source of the procedures. The definition ICAO Annex 2 incorporates the documents mentioned in section 4, as they are in force from time to time.
This also makes CASA 73/17 consistent with regulation 91.695 of CASR and section 23.02 of the Part 91 Manual of Standards.
Item [7] amends the chapeau of section 3 to remove mention of civil aircraft that are now dealt with under regulation 91.695 of CASR.
Item [8] amends section 3 so that the instrument is stated to apply to a foreign registered aircraft that is operating in Australian territory under a foreign air transport AOC or a New Zealand AOC with ANZA privileges that is in force for Australia. The application provision in section 3 provides that the instrument applies to the pilot in command of the aircraft mentioned above that is intercepted by another aircraft during flight.
Item [9] inserts a note below section 3 to point to the changes in CASR under which interception procedures for aircraft other than foreign registered aircraft are now provided for in Part 91.
Item [10] amends the direction in section 4 such that the pilot in command must comply with the interception procedures, incorporated into the instrument from ICAO Annex 2. The incorporated documents are:
(a) ICAO Annex 2 – Appendix 1 – Signals – Section 2 – Signals for use in the event of interception; and
(b) ICAO Annex 2 – Appendix 2 – Interception of Civil Aircraft, Attachment A – Interception of Civil Aircraft.
The amendment in item [10] updates the drafting of the direction in section 4 in line with modern drafting practices.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument contains a direction to pilots in command of a foreign registered aircraft to comply with interception procedures. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
As the instrument relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
In this case, the instrument amends the principal CASA 73/17, and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. CASA 73/17 itself will be repealed at the end of 31 July 2025, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any further renewal of the principal instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case.
The instrument continues the effect of an existing instrument and ensures Australia continues to meet its international obligations under the Chicago Convention regarding the interception of civil aircraft. The instrument does not alter the Part 91 interception procedures but provides a mechanism for the enforcement of those procedures. For these reasons, CASA is satisfied that no further consultation is appropriate or reasonably necessary for this instrument under section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A (1) of the 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 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.
CASA assesses that the economic impact of the amended CASA 73/17 would be unchanged compared to the existing CASA 73/17. However, if a foreign registered aircraft conducting an operation in Australian territory was intercepted and escorted to a different landing destination, this could result in economic (i.e., direct costs) impacts on the operator of the aircraft, or the persons on board the aircraft. These direct cost impacts could be due to increased fuel to the alternate destination and fuel to move the aircraft to a future departure destination, or increased costs for the persons on board the aircraft to get to their originally intended destination. However, these costs are assessed as a reasonable consequence in the context of national security concerns that would underpin any such interception of such a foreign registered aircraft by an Australian authority.
Also, CASA has assessed that the amended CASA 73/17 would not have direct negative environmental impacts. However, if intercepted aircraft were escorted to alternative landing destinations, then this could result in increased fuel usage compared to the planned flight, with potential indirect environmental consequences.
Benefits
The amendments are in the public interest as they ensure legal clarity regarding the obligations of the affected foreign registered aircraft to comply with published interception procedures in Australian territory.
Impact on regional and remote communities
CASA assesses that the direction to foreign registered aircraft to comply with interception procedures when operating in Australian territory would not have any negative consequences for regional or rural areas. The normal landing destinations of such aircraft are aerodromes in capital cities. If a significant national security event did necessitate the widespread interception and escort of such aircraft to alternative landing destinations, some of these destinations are likely to be in regional or rural areas (due to the relative scarcity of capital city major aerodromes). This could result in limited but positive economic benefits to the regional or rural area.
Office of Best Practice Regulation (OBPR)
A regulation impact Statement (RIS) was not required in this case as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 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.
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 CASR.
The instrument commences at the time that 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 33/22 — Interception of Civil Aircraft (CASA 73/17) Amendment Instrument 2022
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 amendments extend the operation of instrument CASA 73/17, Direction — interception of civil aircraft in Australian territory, which would otherwise self-repeal on 31 July 2022. Interception procedures for aircraft (other than foreign registered aircraft) are now dealt with under regulation 91.695 of the Civil Aviation Safety Regulations 1998 (CASR). The instrument amends CASA 73/17 to remove aircraft that are now dealt with under regulation 91.695 from the scope of CASA 73/17 but continues the effect of that instrument for foreign registered aircraft mentioned in regulation 91.020 of CASR. Additionally, the instrument provides for the interception procedures to be referred to in a way consistent with section 23.02 of the Part 91 Manual of Standards (prescribed for the purpose of regulation 91.695). The instrument incorporates the interception procedures from their legal source, being Annex 2 to the Convention on International Civil Aviation. The instrument also updates some matters of drafting style.
The amended instrument is necessary in order to continue to enforce compliance with the interception procedures in respect of foreign registered aircraft operating in Australian territory under a foreign air transport AOC, or under a New Zealand AOC with ANZA privileges.
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