Explanatory Statement
Airspace Regulations 2007
Revocation of Certain Determinations of Airspace and Controlled Aerodromes etc Instrument 2011
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, among other things, the determination of controlled aerodromes.
Relevant 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 (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.
Acts Interpretation Act 1901 (AIA)
Under subsection 33 (3) of the AIA (as applied for legislative instruments by section 13 of the Legislative Instruments Act 2003), where regulations confer a power to make an instrument, the power shall, unless the contrary intention appears, be construed as including a power, exercisable in like manner and subject to like conditions, if any, to repeal the instrument.
Background
Under regulation 5 of the AsR 2007, CASA may, among other things, make determinations to classify airspace, and that an aerodrome is a controlled aerodrome. A controlled aerodrome is an aerodrome at which an air traffic control service is provided to air traffic.
Such determinations are relevant for the purpose of defining and regulating the use, and relevant air traffic control, of the airspace.
The definitive classifications of airspace and listing of controlled aerodromes is compiled and monitored by Airservices Australia (AA) and published in AA’s Designated Airspace Handbook (DAH) twice yearly every 24 or 26 weeks.
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 2 June 2011. This latest DAH contained some revision of the descriptions of relevant airspace information since the previous issue by AA in November 2010. The changes were essentially minor adjustments to lateral and vertical limits of airspace volumes.
In CASA OAR 78/11, CASA, acting under regulation 5 of AsR 2007, repealed the previous determination, CASA OAR 173/10 issued in November 2010, and issued its determination to give the DAH legal force. The determination described airspace from 65 degrees south to 80 degrees south between flight level (FL) 245 and FL 600 as Class A airspace (the Class A southern airspace). The determination also listed controlled aerodromes, with details of their coding and updated location coordinates, and the list included the controlled aerodromes of Karratha and Broome.
Karratha, Broome and the relevant southern airspace
Karratha and Broome had originally been determined as controlled aerodromes in November 2009 by individual instruments, CASA OAR 192/09 and CASA OAR 193/09 (the original determinations).
The determinations had been drafted to have continuing effect, pending final decisions on the continuing status of the aerodromes. Thus, the original instruments had been expressed not to affect, and not to be affected by, subsequent Determinations of airspace and controlled aerodromes etc. This intentional formula enabled the aerodromes to remain as controlled aerodromes pending definitive decisions, without impliedly affecting, or being affected by, subsequent determinations in which they were not included.
Each aerodrome should eventually have been included in the AA DAH listing for November 2010 and the supporting CASA OAR 173/10, but they were overlooked.
This omission did not affect their status as controlled aerodromes because the original determinations had been drafted to have continuing effect.
The omissions were corrected by a specific amendment instrument, CASA OAR 179/10, issued in December 2010 (the amendment instrument).
However, the principal purpose of this amendment instrument was to bring about the creation of the Class A southern airspace.
The latest DAH, and supporting CASA instrument mentioned above (CASA OAR 78/11) each reflect the inclusion of Karratha and Broome as controlled aerodromes with appropriate location coordinates, and the classification of the Class A southern airspace.
Revocations
In these circumstances, since their legislative tasks are completed, it is appropriate to revoke the original instruments. It is also appropriate to revoke the amendment instrument which, dealing as it did with the now revoked CASA OAR 173/10, is spent.
The 2 aerodromes and the Class A southern airspace are definitively determined in CASA OAR 78/11. The revocation of the original instruments, and of the amendment instrument, does not affect that determination. Nor can the revocations have any effect on the previous status of the aerodromes as controlled aerodromes or of the southern airspace as Class A.
Summary of the determination
The determination revokes the 3 relevant instruments of determination (CASA OAR 192/09, CASA OAR 193/09 and CASA OAR 179/10).
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 original determinations, and the amendment determination, were each legislative instruments. Their revocation instrument is also a legislative instrument, 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 instrument is not subject to either disallowance or sunsetting.
Consultation
As a matter of standard practice, the airspace users of any particular airspace that may be subject to changed arrangements, are notified of the proposals by the proponent and consulted about them. Any representations made by the users about the proposals are taken into account by CASA. This consultation process was followed for the relevant determinations conferring controlled aerodrome status on Karratha and Broome, and for the creation of the Class A southern airspace. However, further consultation is not required for the revocation instrument which is merely a minor and machinery tidying up.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement because a preliminary assessment of Business Compliance Costs indicates that the determination will have only a low impact on business or competition.
Making and commencement
The 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 5 (2) of the AsR 2007, CASA OAR 078/11, containing the details for Karratha, Broome and the Class A southern airspace, was published in the AIP DAH on 2 June 2011. For the purpose of revoking the spent original determinations and the amendment instrument, the determination takes effect on the day after registration.
[Instrument number CASA OAR 087/11]