Explanatory Statement
Airspace Regulations 2007
Determination of airspace and controlled aerodromes etc Amendment Instrument (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 (ATC), 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, navigation and ATC requirements. A controlled aerodrome is an aerodrome at which an ATC 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 or E), 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 has published its DAH effective 2 June 2011. This updated DAH contains some revision of the descriptions of relevant airspace information since the previous issue by AA in November 2010. The changes are 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 November 2010. The Determination (CASA OAR 078/11) revoked the previous instrument of determination and re-determined it with minor changes effective on, and from, 2 June 2011.
Need for certain emergency reclassifications
Under subsection 5 (1) of the Determination (CASA OAR 078/11), the CASA delegate determined that the airspace classified as Class A, C, D, E or G by section 5 (initial classification), temporarily ceases to be airspace of that class and becomes airspace of another specified class in accordance with the condition mentioned in subsection 5 (2).
Under subsection 5 (2), and subject to subsection 5 (3), a volume of airspace with an initial classification ceases to be airspace of that class and becomes Class G airspace
outside the ATC service hours of activity specified in the AIP, or in a NOTAM authorised by the delegate, or, if the ATC service for the airspace has been suspended or has ceased functioning, in accordance with a NOTAM authorised by the delegate.
However, under subsection 5 (3), airspace that would become classified as Class G does not do so if AA continues temporarily to control the airspace under the initial classification because this is necessary for continued aircraft separation or other operational reasons. Under subsection 5 (4), the airspace becomes Class G when the temporary requirement ceases.
Under subsection 5 (5), the determination made by subsection 5 (1) ceases to have effect only if the determination instrument is revoked or amended, and then only in accordance with the amendment.
These provisions, dealing with temporary reclassifiations of airspace, are necessary to facilitate the work of AA.
However, there is currently no similar reclassification facility at CASA’s disposal to deal with actual or apprehended emergencies or similar situations in which a temporary reclassification of airspace is necessary, or would be prudent, in the interests of aviation safety.
The unforeseeable and unpredictable eruptions of active volcanoes, whose subsequent ash clouds infiltrate commercial aviation airspace, is a case in point.
Such infiltration can have a major effect on air transport. Flight in airspace supported by appropriate ATC services (that is, for Oceanic passenger services, Class A airspace at flight level (FL) 245) would be too hazardous for the safety of aircraft and passengers. However, to fly lower, such aircraft would enter Class G airspace and thus leave Class A airspace and the ATC services that support it.
CASA currently has no expeditious facility to deal with such a contingency by temporarily reclassifying Class G airspace as Class A space thereby mandating the provision of appropriate ATC services for the aircraft.
The amendment to the Determination (CASA OAR 078/11) would remedy this omission by enabling CASA to temporarily reclassify airspace, for up to 7 days, on the grounds that emergency or other conditions affecting, or that are likely to affect, the relevant airspace make the temporary reclassification of that airspace necessary or prudent in the interests of aviation safety.
More details of the determination are set out in Appendix 1.
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 also 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 not consulted on the proposed amendment Determination because of the need to make and issue it urgently. 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)
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 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 the AIP and commenced on the day it was registered.
Appendix 1
Determination of airspace and controlled aerodromes etc Amendment Instrument 2011
1 Name of instrument
Under this section, the instrument is the Determination of airspace and controlled aerodromes etc Amendment Instrument (No. 1) 2011.
2 Commencement
Under this section, the instrument commences on the day of registration, 15 June 2011.
A Note explains that the instrument was published in the AIP and that the instrument is a legislative instrument and was registered before it commenced.
3 Determination of airspace and controlled aerodromes etc
Under this section, Schedule 1 amends the Determination of airspace and controlled aerodromes etc.
A Note explains that the Determination of airspace and controlled aerodromes etc is contained in CASA OAR 078/11.
Schedule 1 Amendment
Schedule 1 amends the Determination (CASA OAR 078/11) by inserting a new section 6.
6 Emergency determination that airspace of a class becomes airspace of another class
(1)Under this subsection, the delegate determines that a volume of airspace, described in Schedule 3, 4, 5, 6, 7, 8 or 9 (a classification Schedule) as being of the class mentioned for it in the Table in section 4 (initial classification), temporarily ceases to be airspace of that class and becomes airspace of another specified class in accordance with the condition mentioned in subsection (2).
(2)Under this subsection, a volume of airspace with an initial classification as described in a classification Schedule ceases to be airspace of that class and temporarily becomes airspace of another specified class (the new class) if hours of activity for the new class are specified in a NOTAM that is authorised in writing by me.
(3)Under this subsection, an authorisation may only be given on the grounds that emergency or other conditions affecting, or that are likely to affect, the relevant airspace make the temporary reclassification of that airspace necessary or prudent in the interests of aviation safety.
(4)Under this subsection, an authorisation mentioned in subsections (2) and (3) must include my determination that the grounds mentioned in subsection (3) exist.
(5)Under this subsection, an authorisation mentioned in subsections (2) and (3) may not remain in force for longer that 7 days but may be renewed in accordance with this section.
(6)Under this subsection, the determination made in subsection (1) ceases to have effect only if this instrument is:
(a) revoked; or
(b) amended, and then only in accordance with the amendment.