Replacement Explanatory Statement
Civil Aviation Regulations 1988
CASA 50/21 – Designation of Airspace for Broadcast Requirements –Locations with Surveillance Flight Information Service
CASA 51/21 — CASA 490/05 Amendment Instrument 2021 (No. 2)
Purpose
The purpose of these 2 instruments is to make a machinery change to the arrangements for the radio broadcast requirements in the Ballina aerodrome designated area, in practical effect, replacing the existing certified air/ground radio service with the recently developed Surveillance Flight Information Service (SFIS) which uses instead a licensed air traffic controller.
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), CASA may give directions specifying for a designated area:
(a) the broadcast requirements that apply; and
(b) the radio frequency on which broadcasts must be made.
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, 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
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.
Instrument CASA 490/05 – Designation of airspace for broadcast requirements – aerodromes with certified air/ground radio services (as amended) designates areas at the non-controlled aerodromes known as YAYE/Ayers Rock and YBNA/Ballina/Byron Gateway (Ballina), and requires pilots in command of aircraft flying through, or landing at, or taking off from, the aerodrome to make specified broadcasts on specified radio frequencies.
The aerodrome operator for Ballina is the Ballina Shire Council. Under CASA EX44/20 — Air/Ground Radio Service Operation (Ballina/Byron Gateway Aerodrome) Instrument 2020, the aerodrome has a contracted third party air/ground radio service (a CA/GRS) certified under regulation 139.410 of the Civil Aviation Safety Regulations 1998 (CASR). A CA/GRS, using certified air/ground radio operators (CA/GROs) broadcasts aerodrome air traffic advice for the designated area, and aerodrome weather and operational information.
Regulation 139.410 was repealed by the Civil Aviation Safety Amendment (Part 139) Regulations 2019 (the new Part 139 regulations), but under regulation 202.703 of CASR, prior CA/GRS and CA/GRO certifications and approvals, if current, were preserved as if in force under the new Part 139 regulations and the Part 139 Manual of Standards.
Airservices Australia (AA) has proposed the introduction of an SFIS for Ballina. An SFIS is an AA flight information service, on a common traffic advisory frequency (CTAF), provided remotely from an air traffic control centre by a licensed air traffic controller to IFR and VFR aircraft within a designated area. AA considers, and CASA agrees, that, when compared to the CA/GRS, an SFIS will provide an enhanced service to airspace users between 5 and 15 nautical miles of Ballina, and an equivalent traffic information service within 5 nautical miles of Ballina.
AA have identified that SFIS and CA/GRS cannot co-exist on the CTAF due to the heightened risk of pilot confusion. The aerodrome operator has agreed to the repeal of the CA/GRS approval and the introduction of the SFIS. CASA has agreed to enable the provision of an SFIS at Ballina by designating mandatory radio calls within a particular volume of airspace, effective from 12 August 2021.
This is the first time an SFIS has been deployed for a designated area in Australia and CASA considers that it will provide an acceptable level of aviation safety.
To bring the new arrangements into place, CASA has made 2 legislative instruments and a third, repeal, instrument:
- CASA EX90/21 — Air/Ground Radio Service Operation (Ballina/Byron Gateway Aerodrome) Repeal Instrument 2021
- This repeals CASA EX44/20 — Air/Ground Radio Service Operation (Ballina/Byron Gateway Aerodrome) Instrument 2020. This was a non‑legislative instrument, as is its repeal, which is mentioned here only for completeness of information.
- CASA 51/21 — CASA 490/05 Amendment Instrument 2021 (No. 2)
- This amends instrument number CASA 490/05, Designation of airspace for broadcast requirements — aerodromes with certified air/ground radio services, solely to delete mention of Ballina as a designated area under the terms of that instrument. CASA 490/05 was a legislative instrument as is this amending instrument. There are no further relevant details to add in an Appendix about this instrument.
- CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service.
- This is a new instrument. It creates a virtually identical designated area for Ballina — as was previously the case but which is now marginally smaller than previously. It requires pilots in command of aircraft flying through, or landing at, or taking off from, the designated area during published hours of operation of the SFIS, to make specified broadcasts on a specified radio frequency (the same as before) directed to the SFIS and the air traffic. The actual broadcast requirements are broadly similar to the previous requirements. CASA 50/21 is a legislative instrument. Further details are set out in Attachment 1.
Legislation Act 2003 (the LA)
CASA 51/21
CASA 51/21 amends CASA 490/05, which was registered as a legislative instrument. Therefore, consistent with paragraph 10 (1) (d) of the LA, CASA 51/21 is also a legislative instrument, subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
CASA 50/21
Under subsection 8 (4) of the LA, an instrument is a legislative instrument if it is made under a power delegated by the Parliament, and any provision determines the law or alters the content of the law, and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. CASA 50/21, in designating a broadcast area, satisfies these requirements. Under paragraphs 98 (5A) (a) and (5AA) (a) of the Act, an instrument made under regulations is a legislative instrument if it is issued in relation to matters affecting the safe navigation and operation of aircraft, and is expressed to apply to classes of persons or aircraft. CASA 50/21 is expressed to apply to all aircraft in the designated area. On each of these criteria, CASA 50/21 is a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
Incorporation by reference
Under CASA 50/21, during the published hours of operation of the SFIS for a designated area, all initial and final radio broadcasts on the relevant frequency must be directed to the SFIS and the air traffic. The expression published hours of operation is a defined term meaning the hours of operation of the SFIS as published in the Aeronautical Information Publication Supplement, or the En Route Supplement Australia publication.
These 2 documents are, thereby, incorporated by reference in the instrument. The instrument records that the documents are incorporated as in force from time to time. They are so incorporated in accordance with subsection 98 (5D) of the Act which, relevantly, provides that a legislative instrument made under the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time, or as in force or existing from time to time. The documents incorporated by reference may be freely obtained from Airservices Australia, which publishes them at the following website address https://www.airservicesaustralia.com/aip/aip.asp
Consultation
Under section 16 of the 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.
AA has undertaken extensive consultation with relevant airspace users, utilising the Engage Airservices website, online fora, in-person fora, individual meetings, and email distribution lists. AA has shared with CASA the results of this consultation and CASA noted that the withdrawal of the CA/GRS and the introduction of the SFIS had broad support. CASA is satisfied that, given this form and level of consultation, there has been sufficient and appropriate consultation.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instruments embody what is, essentially, a machinery change, from CA/GRS to SFIS, in relation to the radio broadcast requirements for aircraft in the Ballina designated area (OBPR id: 44280).
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.
The legislative instruments make what is, essentially, a machinery change, from CA/GRS to SFIS, in relation to the radio broadcast requirements for aircraft in the Ballina designated area. They do not impose any additional radio carriage requirements. Thus, they do not give rise to any relevant economic and cost impact, and there are no 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 legislative instruments are 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. To the extent that the instruments engage certain of these rights, they do so in a way that is reasonable, necessary and proportionate to ensure the aviation safety of relevant aviation personnel.
Making and commencement
The instruments have been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
Instrument CASA 50/21 commences on 12 August 2021 and is expressed to be repealed at the end of 11 August 2024.
Instrument CASA 51/21 commences on 12 August 2021 and is automatically repealed in accordance with section 48A of the LA.
Attachment 1
Details of CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service
1 Name of instrument
This section names the instrument as CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service.
2 Duration
Under this section, the instrument commences on 12 August 2021 and is repealed at the end of 11 August 2024.
3 Definition
Under this section, Surveillance Flight Information Service or SFIS, is defined to mean the flight information service on a common traffic advisory frequency (CTAF) provided remotely from an air traffic control centre by a licensed air traffic controller to IFR and VFR aircraft within a designated area.
4 Designation of broadcast areas
Under this section, each area of airspace within the horizontal and vertical limits defined for the area (a designated area) in Schedule 1 is designated as an area in which broadcast requirements apply.
5 Direction of broadcast requirements
(1) Under this subsection, the broadcast requirements mentioned in Schedule 2 apply to all aircraft in each designated area.
(2) Under this subsection, the broadcast requirements do not apply to a remotely piloted aircraft or a model aircraft that is operated at or below 400 ft above ground level.
6 Direction of radio frequencies
Under this subsection, broadcasts in a designated area must be made on the radio frequency mentioned in Schedule 3 for the area.
7 Direction of radio callsign for Surveillance Flight Information Service
Under this subsection, broadcasts directed to the Surveillance Flight Information Service within a designated area must be directed to the radio callsign mentioned in Schedule 3 for the area.
Schedule 1 Limits of areas of airspace in which broadcast requirements apply
1 Horizontal limits
2 Vertical limits
3 Designated areas
These 3 sections define the limits of the Ballina designated area.
4 Restricted areas excluded
Under this section, a restricted area is excluded from a designated area whenever the restricted area is activated.
Schedule 2 Broadcast requirements for designated areas
1 Surveillance Flight Information Service
(1) Under this subsection, during the published hours of operation of the Surveillance Flight Information Service (SFIS) for a designated area, all initial and final radio broadcasts on the frequency mentioned in Schedule 3 must be directed to the SFIS and the air traffic.
(2) Under this subsection, outside the published hours of operation of the SFIS for a designated area, all radio broadcasts on the frequency mentioned in Schedule 3 must be directed to the air traffic.
(3) Under this subsection, published hours of operation means the hours of operation of the SFIS as published in any of the following, as in force from time to time:
(a) the Aeronautical information Publication Supplement;
(b) the En Route Supplement Australia publication.
2 Aircraft flying through a designated area without landing
Under this section, the pilot in command of an aircraft intending to fly through a designated area without landing must, before, or as soon as possible after, the aircraft enters the area, make a broadcast that includes the following information:
(a) the aircraft’s type and callsign;
(b) the aircraft’s position;
(c) the aircraft’s present level;
(d) the pilot’s intentions in relation to the flight.
3 Aircraft intending to land at an aerodrome in a designated area
Under this section, the pilot in command of an aircraft intending to land at an aerodrome in a designated area, must:
(a) before, or as soon as possible after, the aircraft enters the area — make a broadcast that includes the following information:
(i) the aircraft’s type and callsign;
(ii) the aircraft’s radial, bearing or quadrant from, and distance from, the aerodrome at which the pilot intends to land;
(iii) the aircraft’s altitude;
(iv) the pilot’s intentions in relation to the flight; and
(b) if and when the aircraft joins the circuit — make a broadcast that includes the following information:
(i) the aircraft’s type and callsign;
(ii) a statement that the aircraft is joining the circuit;
(iii) the leg in which the aircraft is joining the circuit; and
(c) if the pilot intends to make a straight in approach to the landing runway — make a prior broadcast of that intention; and
(d) if and when the aircraft lands on, and exits, the runway strip — make a broadcast that includes the following information:
(i) the aircraft’s callsign;
(ii) a statement that the runway has been vacated; and
(e) for a landing that is not associated with a runway — make a broadcast that includes:
(i) the aircraft’s callsign; and
(ii) a statement that operations are complete.
4 Aircraft taking off from an aerodrome in a designated area
Under this section, the pilot in command of an aircraft which is taxiing for take‑off from an aerodrome in a designated area must:
(a) when starting to taxi — make a broadcast that includes the following information:
(i) the aircraft’s type and callsign;
(ii) if the proposed flight is to be conducted under the IFR — a statement to that effect;
(iii) the name of the aerodrome;
(iv) whichever one or more of the following is applicable:
(A) the intended destination of the proposed flight;
(B) the direction in which the pilot intends to fly from the aerodrome;
(C) aerial work intentions;
(v) the runway proposed to be used for take-off; and
(b) immediately before entering the runway to be used for take-off — make a broadcast that includes the following:
(i) the aircraft’s type and callsign;
(ii) a statement that the aircraft is entering the runway and is either lining up or backtracking;
(iii) the runway identifier; and
(c) during the published hours of operation of the SFIS, for IFR aircraft departing the circuit area, immediately after intercepting the departure track or during a standard instrument departure — make a departure report directed to the SFIS; and
(d) during the hours of operation of the SFIS, for VFR aircraft departing the circuit area, immediately after intercepting the departure track — make a broadcast that includes the following:
(i) the aircraft’s type and callsign;
(ii) the aircraft’s position;
(iii) the aircraft’s present level;
(iv) the level climbing to.
5 Changes to previously advised intentions
Under this section, the pilot in command of an aircraft:
(a) who had previously advised the aircraft’s intentions; and
(b) who intends to deviate from those intentions;
must, before, or as soon as possible after, so deviating, make a broadcast that includes the following information:
(c) the aircraft’s type and callsign;
(d) the aircraft’s position;
(e) the aircraft’s present level;
(f) the pilot’s new intentions in relation to the flight.
Schedule 3 Designated area radio frequencies and callsigns
Under this Schedule, the Ballina designated area radio frequency and radio call sign are prescribed.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service
CASA 51/21 — CASA 490/05 Amendment Instrument 2021 (No. 2)
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 these 2 instruments is to make a machinery change to the arrangements for the radio broadcast requirements in the Ballina aerodrome designated area, in practical effect, replacing the existing air/ground radio service with the recently developed Surveillance Flight Information Service which uses instead a licensed air traffic controller.
Human rights implications
CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service positively engages the following applicable rights or freedoms:
the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR)
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 life under the ICCPR
Right to safe and healthy working conditions under the ICESCR
The imposition of radio broadcast requirements in the context of an SFIS for the Ballina designated area will continue to assist in the separation of aircraft and in the provision of pilot awareness of other aircraft. The continuation of these outcomes will promote the right to life for aircraft occupants and the right to safe and healthy working conditions for pilots.
CASA 51/21 — CASA 490/05 Amendment Instrument 2021 (No. 2) theoretically negatively engages the same rights and freedoms by removing the Ballina designated area from CASA 490/05, Designation of airspace for broadcast requirements — aerodromes with certified air/ground radio services, but solely so that it may be included under CASA 50/21. As compared to the previous CA/GRS system, the new SFIS system will provide an enhanced air traffic information service to airspace users between 5 and 15 nautical miles of Ballina, and an equivalent traffic information service within 5 nautical miles of Ballina.
Human rights implications
The legislative instruments are 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. To the extent that the instruments engage certain of these rights, they do so in a way that is reasonable, necessary and proportionate to ensure the aviation safety of relevant aviation personnel.
Conclusion
The legislative instruments are compatible with human rights, and to the extent that they engage certain rights, they do so in a way that promotes rather than limits those rights.
Civil Aviation Safety Authority