Explanatory Statement
Airspace Regulations 2007
Revocation of designation of air routes
Revocation of determination of conditions for use of air routes
Section 15 of the Airspace Act 2007 (the Act) provides that the Governor-General may make regulations for the Act.
Under subsection 11 (1) of the Act, regulations may confer functions and powers on CASA in connection with the administration and regulation of Australian-administered airspace.
Under paragraph 11 (2) (e) of the Act, regulations may make provision for, and in relation to, the designation of air routes and airways in Australian-administered airspace, and the conditions for use of a designated air route or airway.
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 the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal any such instrument.
Legislation
Under subregulation 11 (1) of the Airspace Regulations 2007 (the AsR 2007), CASA may, in writing, designate air routes and airways in Australian-administered airspace.
Under subregulation 11 (2) of AsR 2007, CASA may determine the conditions that apply to the use of a designated air route or airway.
Under subregulation 11 (3) of AsR 2007, a designation or determination must be made to take effect on, or after, the day on which the designation or determination is published in the AIP or a NOTAM.
Background
Under regulation 11 of the AsR 2007, CASA may make designations of air routes and determine conditions for their use.
An air route is a specified route between 2 points, the purpose of which is to channel the flow of air traffic to facilitate the provision of air traffic services.
The definitive description of various air routes in 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 navigable segments of the air routes in Australian-administered airspace.
AA has published its DAH, effective on and from 30 May 2013. This updated DAH contains some revision of the descriptions of air routes since the previous issue by AA in November 2012. The changes are essentially minor adjustments to waypoints which constitute those air routes.
Revocation of determination and discontinuance of determining
The current list of air routes published in the DAH is no longer representative of all air routes available to pilots and nor is it a requirement for pilots to follow the air routes published in the DAH. Following consultation with AA, CASA has determined that no effective purpose is served by its legislating for DAH air routes. The instrument, therefore, revokes the previous instrument of designation of air routes, namely, CASA OAR 141/12 — Designation of air routes.
All published air routes will continue to appear on aviation charts as issued every 24-26 weeks by AA to assist with the management of air traffic. In addition, optional air routes known as “flex-tracks” – which are widely used and have never required to be legislated – will continue to be available to allow pilots to follow routes which achieve maximum fuel efficiency.
The effect of ceasing to legislate the DAH air routes is nil since the routes, although incomplete and non-compulsory, remain available for optional use under the DAH.
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. Further, the instrument by which such an instrument is revoked is also a legislative instrument.
The previous designation and determination instruments for air routes were legislative instruments, subject to registration, and to tabling in the Parliament, under sections 24 and 38 of the LIA respectively (although under items 1B and 1A of Schedules 2 and 3 respectively of the Legislative Instruments Regulations 2004, the designations were not subject to either disallowance or sunsetting). The instrument revoking the existing designation and determination instrument is a legislative instrument, similarly subject to registration and tabling.
Consultation
CASA consulted with AA on its proposal to no longer expressly legislate for the non‑compulsory air routes appearing in the DAH. Broader consultation was considered to be unnecessary for the following reasons.
First, the use of air routes, whether as published in the DAH or as legislated for in the previous designation and determination instruments, was not compulsory – except if directed by ATC for specific circumstances and ATC has the authority to direct any appropriate air route for particular circumstances.
Secondly, the air routes, whether as published in the DAH or as legislated for in the previous designation and determination instruments, are not a complete set of all available air routes but merely a sample or selection which have been commonly used. and in any case do not contain the frequently used “flex-tracks”.
Thirdly, the air routes, whether as published in the DAH or as legislated for in the previous designation and determination instruments, do not contain the optional and frequently used air routes known as “flex-tracks”.
Fourthly, information about certain air routes will continue to appear in the DAH which, as part of the AIP, is for pilots the principal source of information about these air routes. This information will remain available in exactly the same form as before. Notwithstanding its formal status as the official designation of the relevant air routes (whereas the DAH was a particular form of publication of air routes), few, if any, pilots would ever have used the CASA instruments as their principal source of information about air routes.
CASA considered that there was no longer a need to legislate for a non-compulsory selection of air routes, and considered that, in the circumstances listed above, this decision would have nil impact on pilots or operations. Publication in NOTAM of the revocation of the existing designation and determination instrument will notify pilots and operators.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement because the revocation of the existing designation and determination instrument will have no impact on business or competition.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is 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 designation and determination 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.
As required by subregulation 11 (2) of the AsR 2007, following registration the instrument commences on 30 May 2013, the day it is published in NOTAM.
[CASA OAR 59/13]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Airspace Regulations 2007
Revocation of designation of air routes
Revocation of determination of conditions for use of air routes
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
Under regulation 11 of the Airspace Regulations 2007, CASA may make designations of air routes and determine conditions for their use. An air route is a specified route between 2 points, the purpose of which is to channel the flow of air traffic to facilitate the provision of air traffic services. The definitive description of various air routes in 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 navigable segments of the air routes in Australian-administered airspace.
AA has published its DAH, effective on and from 30 May 2013. This updated DAH contains some revision of the descriptions of air routes since the previous issue by AA in November 2012. The changes are essentially minor adjustments to waypoints which constitute those air routes.
The current list of air routes published in the DAH is no longer representative of all air routes available to pilots and nor is it a requirement for pilots to follow the air routes published in the DAH. Following consultation with AA, CASA has determined that no effective purpose is served by its legislating for DAH air routes. The instrument, therefore, revokes the previous instrument of designation of air routes, namely, CASA OAR 141/12 — Designation of air routes.
All published air routes will continue to appear on aviation charts as issued every 24-26 weeks by AA to assist with the management of air traffic. In addition, optional air routes known as “flex-tracks” – which are widely used and have never required to be legislated – will continue to be available to allow pilots to follow routes which achieve maximum fuel efficiency.
The effect of ceasing to legislate the DAH air routes is nil since the routes, although incomplete and non-compulsory, remain available for optional use under the DAH.
Human rights implications
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. The 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
[Instrument number CASA OAR 059/13]