Explanatory Statement
Airspace Regulations 2007
Determination of airspace and controlled aerodromes etc Amendment Instrument 2012 (No. 1)
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 subsection 11 (2), the regulations may make provision for, and in relation to, the classification and designation of airspace, the designation of air routes, and the determination of controlled aerodromes, flight information areas, flight information regions and control areas and zones.
Legislation
Under subregulation 5 (1) of the Airspace Regulations 2007 (the AsR 2007), CASA may, in writing, make various determinations about the aviation status of the airspace for whose management Australia has responsibility under the Chicago Convention.
Under subregulation 5 (2) of the AsR 2007, if a determination provides that a volume of airspace of a specified class ceases to be airspace of that class and becomes airspace of another specified class, the determination must specify the date or times of the changed classification or the conditions under which the airspace becomes airspace of another specified class.
Under subregulation 5 (3), a determination must be made to take effect on, or after, the day on which the determination is published in the AIP or a NOTAM.
Under subregulation 5 (4), unless sooner revoked, a determination ceases to have effect at the time, in the event or in the circumstances specified in the determination or on revocation of the determination.
Under subregulation 5 (5), a determination has no effect during any period in which relevant air traffic services (ATS) are not provided.
Background
Under regulation 5 of the AsR 2007, CASA may make determinations that a volume of airspace is a flight information area, a flight information region, a control zone, a control area or is classified, in accordance with Annex 11 to the Chicago Convention, as Class A, B, C, D, E, F or G airspace. A determination may also be made that an aerodrome is a controlled aerodrome.
Each of these determinations is relevant for the purpose of defining and regulating the use, and relevant air traffic control, of the airspace.
For example, different airspace classifications give rise to differing requirements about the following: the type of flight permitted (whether under visual or instrument flight rules); how aircraft are to be separated; whether there are speed limitations; and whether there are radio communication and air traffic control requirements. A controlled aerodrome is an aerodrome at which an air traffic control service is provided to air traffic. A flight information region is an airspace of defined dimensions within which a flight information service and alerting service are provided.
Under subsection 13 (1) of the Act, CASA has responsibility for conducting regular reviews of the existing classifications of volumes of Australian-administered airspace to determine whether those classifications are appropriate.
The definitive description of Australian-administered airspace is compiled and monitored by Airservices Australia (AA). Currently, these descriptions are published in AA’s Designated Airspace Handbook (DAH) twice yearly every 24 or 26 weeks.
The DAH lists and describes, in tabular form, the lateral and vertical limits, and other relevant details, of Australian-administered airspace. The DAH, therefore, contains detailed airspace information in respect of the following: flight information regions, flight information areas, volumes of airspace that fall within the 5 current classifications of Australian-administered airspace (Classes A, C, D, E and G), volumes of airspace that fall within the 2 current control zones (for Class C airspace and Class D airspace), and controlled aerodromes.
On 1 July 2007, CASA took over from AA responsibility for the regulation of Australian airspace. Nevertheless, AA remains responsible for the definitive description of Australian-administered airspace.
AA published its DAH effective on 17 November 2011. This updated DAH contained some revision of the descriptions of relevant airspace information since the previous issue by AA in July 2011. The changes were essentially minor adjustments to lateral and vertical limits of airspace volumes. CASA, under regulation 5 of AsR 2007, therefore, updated the previous determination issued by CASA in July 2011. The new Determination (CASA OAR 0152/11) revoked the previous instrument of determination and re-determined it with minor changes effective on, and from, 17 November 2011.
Need for airspace releases as between AA and the RAAF
Schedules 2 and 5 of the Determination, specify the Department of Defence – RAAF (the RAAF) as the Controlling Authority for some of the volumes of airspace mentioned in the Schedules dealing with Flight Information Areas and Class C Control Zones.
Schedules 2, 3, 4 and 5 of the Determination specify AA as the Controlling Authority for many but not all of the volumes of airspace mentioned in the Schedules dealing with Flight Information Areas, Class A airspace, Class C airspace and Class C Control Zones.
It is sometimes necessary in practice, in the interests of safe and effective air traffic control for both military and civilian, for AA, or the RAAF, to release to each other, in accordance with their established written procedures, some airspace for which one but not the other is the Controlling Authority, so that relevant air traffic control services may be effectively provided. This is required, for example, when civilian air traffic controllers provide the approach services for adjacent RAAF airspace such as Richmond. Similarly, a portion of Class C airspace for which AA is the Controlling Authority is released to RAAF Williamtown under defined circumstances to facilitate the efficient flow of air traffic into Williamtown. There are established practices and procedures for relevant airspace to be regularly released by military air traffic controllers to civilian air traffic controllers and vice versa.
However, it is necessary to formalise this practice within the scope of the Determination by amending it as follows.
First, a new definition of Controlling Authority is inserted into the Determination, so that a Controlling Authority for a volume of airspace, or part of a volume of airspace, as mentioned in one of the Schedules to the Determination, means one of the following:
(a) subject to paragraph (b) and (c) below, the actual Controlling Authority named in the Schedule for the volume of airspace, including any part of it;
(b) the RAAF, for Schedule 2, 3, 4 or 5 (that is, Flight Information Areas, Class A airspace, Class C airspace and Class C Control Zones) where the Controlling Authority mentioned in the Schedule is not the RAAF, — but only by agreement between the RAAF and AA as expressed in acceptance by the RAAF of a voice telecommunication from AA releasing the airspace, to the RAAF;
(c) AA, for Schedule 2 or 5, (that is, Flight Information Areas and Class C Control Zones) where the Controlling Authority mentioned in the Schedule is not AA — but only by agreement between AA and the RAAF as expressed in acceptance by AA of a voice telecommunication from the RAAF releasing the airspace to AA.
A Note explains that releases are strictly in accordance with written procedures established by AA and the RAAF.
A second amendment is designed to remove any doubt about the meaning of section 4 of the Determination.
Previously, section 4 provided that the CASA had determined “the volumes of airspace described in a Schedule”. It was assumed that the mention of volumes of airspace described in a Schedule ensured that the Determination included, within the description, the airspace coordinates, the vertical limits and all the other information set out for the airspace, including hours of activity and Controlling Authority.
To remove any doubt about this, and to clarify and make explicit what may previously have been only implicit, section 4 now provides that CASA has determined the volumes of airspace described in a Schedule “in accordance with the details for each volume of airspace set out in the Schedule”.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of 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.
The amendment to the Determination is a legislative instrument. It is subject to registration and to tabling in the Parliament under sections 24 and 38 of the LIA respectively. However, under items 1B and 1A of Schedules 2 and 3 respectively of the Legislative Instruments Regulations 2004, the determination is not subject to either disallowance or sunsetting.
Consultation
CASA has consulted with AA and the RAAF on the proposed amendment to the Determination but not more broadly because of the need to make and issue the amendment expeditiously. However, CASA will post the amendment instrument on its website and invite aviation industry comment on it over a period of 21 days. At the end of that period, CASA will review the amendment Determination in light of any comments made.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement is not required by OBPR because a preliminary assessment of Business Compliance Costs indicates that the determination will have no impact on business or competition.
Making and commencement
The determination has been made by the Acting Executive Manager, Airspace and Aerodrome Regulation Division, a delegate of CASA, under subsection 94 (1) of the Civil Aviation Act 1988.
The amendment Determination has been published in a NOTAM and commenced on the day it was registered.