Explanatory Statement
Civil Aviation Regulations 1988
CASA 82/20 — Conducting Right‑hand Circuits (Relevant Runways at Non‑controlled Aerodromes) Direction 2020
Purpose
There are approximately 257 entries that mention a right‑hand circuit for one or more runways at particular aerodromes (most of which are non‑controlled aerodromes) in the documents within the Integrated Aeronautical Information Package, published by Airservices Australia (AA) in its capacity as an Aeronautical Information Service (AIS) provider. The relevant documents are:
(a) the version of the document titled En Route Supplement Australia (AIP‑ERSA) effective on 5 November 2020; and
(b) the aerodrome charts in the version of the Departure and Approach Procedures (DAP) that is effective from 5 November 2020 to 24 March 2021.
The Civil Aviation Safety Authority (CASA) has identified that it is highly likely that a majority of those right‑hand circuits for runways at non‑controlled aerodromes were not published in accordance with a direction included in an instrument issued to the aerodrome operator of the relevant non‑controlled aerodrome.
To address that situation, this instrument would direct a pilot in command of an aircraft (other than a rotorcraft) for a flight to comply with instructions in authorised aeronautical information for the flight, if particular circumstances exist.
This instrument will operate until a provision that would have the same effect (subregulation 91.385 (1) of the Civil Aviation Safety Regulations 1998 (CASR)) commences. Subregulation 91.385 (1) of CASR is, along with the rest of the Civil Aviation Safety Amendment (Part 91) Regulations 2018 (the Part 91 Regulations), expressed to commence on 2 December 2021.
Legislation
Civil Aviation Act 1988 (the Act)
Section 98 of the Act empowers the Governor‑General to make regulations for the Act and in relation to safety of air navigation. Relevantly, the Governor‑General has made the CASR and Civil Aviation Regulations 1988 (CAR).
Subsection 98 (5D) of the Act provides that 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.
Acts Interpretation Act 1901 (the AIA)
Under subsection 33 (3) of 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.
CAR
Subregulation 2 (1) of CAR defines a military aerodrome as ‘an aerodrome under the control of any part of the Defence Force’
Subregulation 2 (1) of CAR also defines a non‑controlled aerodrome as ‘an aerodrome at which an air traffic control service is not operating.’ The note below that definition adds that a ‘non‑controlled aerodrome is also known as a non-towered aerodrome.’
Under subregulation 92 (2) of CAR, CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation. Subregulations 92 (3) and (4) of CAR provide, respectively, that a person must not contravene a direction and that an offence against subregulation 92 (3) is an offence of strict liability.
Subregulation 166 (2) of CAR provides that an aircraft is in the vicinity of a non‑controlled aerodrome if it is within:
(a) airspace other than controlled airspace; and
(b) 10 miles from the aerodrome; and
(c) a height above the aerodrome that could result in conflict with operations at the aerodrome.
Under subregulation 166A (1) of CAR, the pilot in command of an aircraft commits an offence if the aircraft is being operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome and the pilot engages in conduct that results in the contravention of a rule set out in subregulation 166A (2).
The rules set out in subregulation 166A (2) of CAR include the rule in paragraph 166A (2) (d) that, if the pilot joins the circuit pattern for the aerodrome for a landing at the aerodrome, the pilot must, after joining the circuit pattern, make all turns in accordance with subregulation 166A (3). The rule in paragraph 166A (2) (e) is that, if the pilot takes off from the aerodrome, the pilot must, after taking off, make all turns in accordance with subregulation 166A (3) while the aircraft is flying in the circuit pattern for the aerodrome.
Under subregulation 166A (3) of CAR, for paragraphs paragraph 166A (2) (d) and (e), the turns must be made:
(a) if CASA has, under subregulation 92 (2), directed that all turns at the aerodrome be made in a particular direction—in accordance with CASA’s directions; or
(b) if paragraph (a) does not apply and visual signals are displayed at the aerodrome indicating a direction to make all turns—in accordance with the visual signals; or
(c) in any other case—to the pilot’s left.
Therefore, if CASA has issued a direction under subregulation 92 (2) of CAR that all turns at the non‑controlled aerodrome be made in a particular direction, the pilot in command is not required to comply with the requirement, mentioned in paragraph 166A (3) (c) of CAR, that all turns must be made to the pilot in command’s left. If the pilot in command makes turns in accordance with the direction, the pilot would not be engaging in conduct that results in the contravention of the rules set out in paragraphs 166A (2) (d) and (e). Consequently, the conduct of the pilot in command would not give rise to an offence under subregulation 166A (1) of CAR.
CASR and the Air Services Regulations 2019
Part 1 of the CASR Dictionary defines Integrated Aeronautical Information Package as a package, in hardcopy or electronic form, consisting of the following:
(a) the AIP;
(b) AIP Amendments;
(c) AIP Supplements;
(d) NOTAMS and pre-flight information bulletins;
(e) aeronautical information circulars.
Part 1 of the CASR Dictionary defines Aeronautical Information Publication or AIP and NOTAM (short for Notice to Airmen) to have the same meaning as in the Air Services Regulations 2019. Regulation 4 of the Air Services Regulations 2019 includes the following definitions of those terms:
(a) Aeronautical Information Publication or AIP means the Aeronautical Information Publication published in accordance with section 14, as amended from time to time;
(b) Notice to Airmen or NOTAM means a Notice to Airmen published in accordance with section 15.
Subregulations 14 (1) to (5) and 15 (1) to (6) of the Air Services Regulations 2019 set out the following:
(a) when AA must and may publish the AIP and NOTAMS;
(b) where AA must publish the AIP and NOTAMS;
(c) the information that is required to be, and may be, included in the AIP and NOTAMS;
(d) additional circumstances in which AA may publish the AIP and NOTAMS;
(e) the requirements AA must comply with related to the timing and manner of publishing the AIP and NOTAMS;
(f) a provision empowering AA to make the information system where NOTAMS are published available to persons approved by AA.
Subregulations 14 (6) and 15 (7) of the Air Services Regulations 2019 provide that, respectively, the Aeronautical Information Publication and a Notice to Airmen, is not a legislative instrument.
Part 1 of the CASR Dictionary defines data service provider as a person who holds a certificate under regulation 175.295 of CASR. Subpart 175.C of CASR relates to aeronautical information management by data service providers. Regulation 175.295 relates to the issue of a data service provider certificate to an applicant.
Subregulation 175.295 (1) provides that, subject to regulation 11.055, CASA must issue a data service provider certificate to an applicant if CASA is satisfied that particular requirements have been met, including that the applicant is able and willing to conduct the data service activities mentioned in the application safely.
Subregulations 175.295 (2) to (4) of CASR set out matters that CASA must determine if it decides to issue a data service provider certificate, what the certificate must include, and when CASA must issue a new certificate.
Subpart 175.D of CASR relates to aeronautical information management by aeronautical data originators. Part 1 of the CASR Dictionary defines an aeronautical data originator as ‘a person who has been given a data product specification under regulation 175.160 that is in force.’ CASA is the aeronautical data originator responsible for ensuring that circuit directions for non‑controlled aerodromes are kept up to date in the Integrated Aeronautical Information Package, published by AA in its capacity as the AIS provider of the aeronautical data and aeronautical information contained in the publications that are part of that information package.
Relevantly, regulation 175.455 of CASR applies if an aeronautical data originator becomes aware of a change that is needed to aeronautical data or aeronautical information:
(a) for which the aeronautical data originator is responsible; and
(b) that has been published by an AIS provider:
(i) in the Integrated Aeronautical Information Package (other than in NOTAMS); or
(ii) on an aeronautical chart.
Under subregulation 175.455 (2) of CASR, an aeronautical data originator commits an offence if the aeronautical data originator does not, as soon as practicable after becoming aware of the need for change, provide the AIS provider with:
(a) the updated aeronautical data or aeronautical information; and
(b) the date on which the updated aeronautical data or aeronautical information becomes effective.
Future regulation 91.385 of CASR and definition of authorised aeronautical information
After the Part 91 Regulations commence, subregulation 91.385 (1) of CASR will provide that the pilot in command of an aircraft (other than a rotorcraft) for a flight contravenes that subregulation if:
(a) the aircraft is operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome; and
(b) after joining the circuit pattern for a landing or while flying in the circuit pattern after take‑off, the pilot does not:
(i) comply with instructions in the authorised aeronautical information for the flight to the effect that all turns be made in a particular direction; or
(ii) if there are no relevant instructions in the authorised aeronautical information for the flight—make all turns to the left.
Also, after the Part 91 Regulations commence:
(a) subregulation 91.385 (2) of CASR will provide that subregulation 91.385 (1) does not apply to the pilot in command of an aircraft if circumstances that are not relevant to the instrument exist; and
(b) subregulation 91.385 (3) of CASR will provide that a person commits an offence of strict liability if the person contravenes subregulation (1).
Like the Part 91 Regulations, the Civil Aviation Safety Amendment (Operations Definitions) Regulations 2019 (the Operations Definitions Regulations) are expressed to commence on 2 December 2021. They will insert the following definition of authorised aeronautical information into the CASR Dictionary:
authorised aeronautical information, for a flight of an aircraft, means the aeronautical maps, charts and other aeronautical information relevant to the route of the flight, and any probable diversionary route, that are published:
(a) if paragraph (b) does not apply:
(i) in the AIP; or
(ii) by a data service provider; or
(iii) in NOTAMs; or
(b) for a flight in a foreign country:
(i) in the document that in that country is equivalent to the AIP; or
(ii) by an organisation approved to publish aeronautical information by the national aviation authority of that country.
Background
There are currently a combined total of approximately 257 entries that mention a right‑hand circuit for one or more runways at particular aerodromes (most of which are non‑controlled aerodromes) in the AIP‑ERSA and the aerodrome charts in the DAP.
The combined total excludes entries in those publications for military aerodromes, which are expressly excluded from the scope of the aerodromes covered by the instrument. However, the combined total includes entries in those publications that mention a right‑hand circuit for one or more runways at the following kinds of aerodromes:
(a) joint civil and military aerodromes;
(b) civil aerodromes with a facilities (FAC) page in the AIP‑ERSA indicating that the aerodrome does not offer a 24 hour air traffic control service;
(c) civil non‑controlled aerodromes with a FAC page in the AIP‑ERSA.
The combined total includes the kinds of civil aerodromes mentioned in paragraph (b) of the preceding paragraph because, outside hours when an air traffic control tower is operating, an aerodrome of that kind is a non‑controlled aerodrome (even if the aerodrome is determined to be a controlled aerodrome under CASA OAR 058/20 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2020). Similarly, the combined total includes the kinds of civil aerodromes mentioned in paragraph (c) of the preceding paragraph because (based on the content of the FAC page for the aerodrome in the AIP‑ERSA) it appears that:
(a) an air traffic control tower does not operate at those aerodromes; or
(b) an air traffic control tower does not operate for 24 hours a day (some relevant entries in the AIP‑ERSA that don’t specify tower hours use expressions or abbreviations indicating that the aerodrome operates outside air traffic control tower hours).
Overview of instrument
The instrument would, until subregulation 91.385 (1) of CASR commences, or for a maximum of 5 years, direct a pilot in command of an aircraft (other than a rotorcraft) for a flight to comply with instructions in authorised aeronautical information for the flight if:
(a) the aircraft is operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome; and
(b) either of the following circumstances exist:
(i) the pilot in command has joined the circuit pattern for a landing on a relevant runway;
(ii) the pilot in command is flying in the circuit pattern after take‑off from a relevant runway.
Rotorcraft are more manoeuvrable than other kinds of aircraft and, as a result, do not need to fly circuits or fly in other fixed wing aircraft traffic patterns. Therefore, rotorcraft are excluded from the kinds of aircraft to which the instrument applies.
In accordance with subsection 33 (3) of the AIA, the instrument also repeals instrument CASA 278/14, Direction — to conduct right-hand circuits off Runway 12 (Brisbane West Wellcamp) (CASA 278/14), which is no longer required with the making of this instrument.
Documents incorporated by reference
The instrument incorporates by reference aeronautical maps, charts and other aeronautical information relevant to the route of a flight of an aircraft, and any probable diversionary route, that are published in the Integrated Aeronautical Information Package, as existing from time to time (see the definition of authorised aeronautical information in section 4). Relevantly, those maps, charts and information include instructions to the effect that pilots operating at particular non‑controlled aerodromes, or on particular runways at those aerodromes, must make all turns to the right. Those instructions are published in the following locations within the Integrated Aeronautical Information Package, as existing from time to time:
(a) the AIP‑ERSA;
(b) the DAP;
(c) NOTAMS.
The AIP‑ERSA and the DAP are freely available online at https://www.airservicesaustralia.com/aip/aip.asp. NOTAMS are freely available by registering for a free National Aeronautical Information Processing System account at www.airservicesaustralia.com/flight-briefing/.
The AIP‑ERSA, the DAP and a NOTAM are not legislative instruments. However, under subsection 98 (5D) of the Act, those documents may be incorporated by reference as existing from time to time.
Content of instrument
Section 1 names the instrument.
Section 2 repeals CASA 278/14, which is no longer required with the making of this instrument.
Section 3 sets out when the instrument commences and will be repealed.
Section 4 contains definitions.
The note below the heading of section 4 is intended to assist users of the instrument to identify defined terms located in the Act, CAR or CASR.
The instrument includes a definition of authorised aeronautical information because:
(a) that expression is used in subregulation 91.385 (1) of CASR, which has not yet commenced; and
(b) the direction in section 5 of the instrument is intended to have the same effect as that subregulation.
With three differences, the definition of authorised aeronautical information in section 4 mirrors the expression of paragraph (a) of the definition of authorised aeronautical information to be inserted into the CASR Dictionary by the Operations Definitions Regulations. The definition in the instrument includes the following differences:
(a) to reflect that the AIP‑ERSA, the DAP and NOTAMS (where right‑hand circuits are published) are part of the Integrated Aeronautical Information Package, paragraph (a) of the definition of authorised aeronautical information in section 4 of the instrument mentions the ‘Integrated Aeronautical Information Package’ instead of ‘AIP’ and ‘NOTAMS’;
(b) to reflect the intention of incorporating the relevant parts of the Integrated Aeronautical Information Package as existing from time to time, including that expression at the end of paragraph (a);
(c) not including the expression ‘if paragraph (b) does not apply’. Paragraph (b) of the definition of authorised aeronautical information to be inserted into CASR by the Operations Definitions Regulations is not relevant to the instrument because it relates to information of that kind for a flight in a foreign country.
After it commences, the definition of authorised aeronautical information in the CASR Dictionary (like the definition of authorised aeronautical information in the instrument) will include in its scope information of that kind published in the AIP‑ERSA and the DAP because that information will be published by data service providers.
The note below the definition of authorised aeronautical information in section 4 is intended to assist users of the instrument to identify and locate publications within the Integrated Aeronautical Information Package that publish right‑hand circuits for a runway at a non‑controlled aerodrome. The expression ‘a supplement to the Aeronautical Information Package (AIP)’, located at the end of paragraph (b) of that note, is intended to assist a particular (and large) group of users of the instrument – pilots – to identify and locate the related information. That expression is included because pilots are more familiar with references to the Aeronautical Information Publication or to the AIP than references to the Integrated Aeronautical Information Package.
Section 5 directs a pilot in command of an aircraft (other than a rotorcraft) for a flight to comply with instructions in authorised aeronautical information for the flight if:
(a) the aircraft is operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome; and
(b) either of the following circumstances exist:
(i) the pilot in command has joined the circuit pattern for a landing on a relevant runway; or
(ii) the pilot in command is flying in the circuit pattern after take‑off from a relevant runway.
The notes below section 5 are intended to assist users of the instrument to identify and locate a relevant definition and relevant provisions in CAR (including a provision that sets out other general requirements that must be met by a pilot in command of an aircraft being operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome).
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 repeals instrument CASA 278/14 that 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 on the new Part 91 of CASR, included in the Part 91 Regulations, from 27 March to 6 May 2018. The consultation included releasing an exposure draft of the Part 91 Regulations that included proposed regulation 91.385 of CASR. The direction in section 5 of the instrument is intended to have the same effect that subregulation 91.385 (1) of CASR will have when it commences. In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is 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. 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 CASR.
The instrument commences on the day after registration and is repealed at the earlier of.
(a) the commencement of the Part 91 Regulations; and
(b) the end of 31 October 2025.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 82/20 — Conducting Right‑hand Circuits (Relevant Runways at Non‑controlled Aerodromes) Direction 2020
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 directs a pilot in command of an aircraft (other than a rotorcraft) for a flight to comply with instructions in authorised aeronautical information for the flight if particular circumstances exist regarding:
(a) the location of the aircraft at, or in relation to, a non‑controlled aerodrome; and
(b) whether the pilot in command either has joined the circuit pattern for a landing on a relevant runway or is flying in the circuit pattern after take‑off from a relevant runway.
The instrument would define a relevant runway as a runway at a non‑controlled aerodrome, other than a military aerodrome, for which a right‑hand circuit:
(a) is mentioned in authorised aeronautical information on the day on which the instrument commences; or
(b) is published in authorised aeronautical information on or after the day on which the instrument commences.
The instrument would define authorised aeronautical information, for a flight of an aircraft, as the aeronautical maps, charts and other aeronautical information relevant to the route of the flight, and any probable diversionary route, that are published:
(a) in the Integrated Aeronautical Information Package, as existing from time to time; or
(b) by a data service provider.
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