Explanatory Statement
Airspace Regulations 2007
Determination of airspace and controlled aerodromes etc Amendment Instrument 2012 (No. 2)
Purpose
The purpose of the Determination of airspace and controlled aerodromes etc Amendment Instrument 2012 (No. 2) (the Determination amendment) is to permit, in certain limited circumstances, early deactivation of Class C Control Zones by voice telecommunication instead of NOTAM, in the interests of more effective airspace management
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 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.
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 a volume of 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 152/11) revoked the previous instrument of determination and re-determined it with minor changes effective on, and from, 17 November 2011.
It is now necessary to amend that Determination to permit, in certain limited circumstances, early deactivation of Class C Control Zones by voice telecommunication instead of NOTAM, in the interests of more effective airspace management.
Need for early deactivation of Class C Control Zones by voice telecommunication
The air traffic management of Class C Control Zones is shared between AirServices Australia (AA) and the Department of Defence (represented by the RAAF). Generally speaking, there is currently no streamlined method to permit the lawful early deactivation of a Class C Control Zone which is activated by a NOTAM that states a specified finish time — other than by the issue of another amending NOTAM.
Because of delays in the NOTAM Office (up to 2 hours on occasions), such amending NOTAMs for comparatively short periods of early cessation of Class C Control Zone activity are impracticable.
The result is that airspace, that could be readily utilised by aircraft in flight, remains legally inaccessible because validating NOTAMs for early termination of a control zone lag far behind the fact and are of no practical use to pilots in flight.
The Determination amendment remedies this by enabling the originating NOTAM, that states the start and finishing times for the control zone, to flag the potential for early curtailment of up to 60 minutes without the need to issue a NOTAM. An amending NOTAM would still be required outside that time frame.
Details of Determination amendment
To achieve this, a new section 7 (Determination for voice deactivation of Class C Control Zones) is inserted into the Determination. This expressly provides for the temporary cessation of Class C Control Zones in certain circumstances so that the underlying airspace classification may resume. The Determination amendment is made subject to the presence of the relevant circumstances.
Thus, new subsection 7 (1) provides that, subject to the remainder of the section, CASA determines that a volume of airspace, described in Schedule 5 of the Determination as a Class C Control Zone, temporarily ceases to be a Class C Control Zone and becomes airspace of another specified class if:
(a) the details for the Control Zone set out in Schedule 5 provide for its activation in accordance with an hours of activity statement that is a NOTAM (an activating NOTAM); and
(b) the activating NOTAM specifies a finish time for the activation (the specified finish time); and
(c) the Controlling Authority for the Control Zone uses voice telecommunication to a receiving air traffic control (ATC) authority to deactivate the Control Zone earlier than the specified finish time (early deactivation) in accordance with subsection (2).
Subsection 7 (2) provides that early deactivation may only be carried out if the activity for which the activating NOTAM was published has been completed or otherwise terminated.
Subsection 7 (3) provides that early deactivation may not occur earlier than 60 minutes before the specified finish time — unless an amending NOTAM is issued. The combined effect of subsections 7 (1) to (3) is, therefore, that, for an early deactivation within the 60 minutes before the specified finish time, an amending NOTAM is not required. Thus, although for each relevant control zone the hours of activity are regulated by NOTAMs with specified finish times, these now operate subject to section 7.
Subsection 7 (4) provides that, to avoid doubt, the period of activation of a Control Zone activated by NOTAM may not be extended by voice telecommunication past the specified finish time.
For the guidance of users, a series of Notes explain, and provide information on the implications of, the new section.
Thus, Note 1 explains that for an early deactivation within the 60 minutes before the specified finish time, an amending NOTAM is not required.
Note 2 explains that for an early deactivation that is earlier than 60 minutes before the specified finish time, an amending NOTAM is required.
Note 3 explains that for any extension to the specified finish time, an amending NOTAM is required.
Note 4 sets out a pro forma for an activating NOTAM so that the potential for early voice deactivation is flagged to pilots using the NOTAM. The details in Part E) of relevant NOTAMs would include the following statement about the control zone: “active; however may be subject to early deactivation. Check status with [relevant ATC authority].”
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 amendment 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 has not consulted more broadly first, because of the need to make and issue the amendment expeditiously and, secondly, because the effect of the Determination amendment is considered beneficial as it permits an agreed, fast, consistent and lawful means of making fuller use of some relevant airspace for potential users. 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 Determination amendment 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 amendment will have no impact on business or competition. It is designed to facilitate greater potential accessibility to commercially used airspace.
Statement of Compatibility with Human Rights
For Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Determination amendment is considered compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The instrument is facilitative and advantageous for relevant persons and, therefore, does not engage any of the applicable rights or freedoms or raise any human rights issues.
Making and commencement
The Determination amendment has been made by the Executive Manager, Airspace and Aerodrome Regulation Division, a delegate of CASA, under subsection 94 (1) of the Civil Aviation Act 1988.
The Determination amendment has been published in a NOTAM and commenced on 16 March 2012.
[Instrument number CASA OAR 038/12]