Explanatory Statement
Airspace Regulations 2007
CASA OAR 226/23 — Determination of Airspace and Controlled Aerodromes, Etc. (Designated Airspace Handbook) Instrument 2023
Purpose
The purpose of CASA OAR 226/23 — Determination of Airspace and Controlled Aerodromes, Etc. (Designated Airspace Handbook) Instrument 2023 (the determination) is to determine, for the use of aviators and others, the revised Australian airspace architecture which, effective on 30 November 2023, is derived from the Designated Airspace Handbook (the DAH) of the Aeronautical Information Publication (the AIP).
The airspace architecture determination is similar to the repealed predecessor instrument with generally only relatively minor adjustments for the most part. For example, there are some minor lateral changes to correct geoborders that do not induce any functional changes in terms of how the airspaces are used or viewed. The exception to this is the 2 sets of changes to airspace associated with the Royal Australian Air Force (the RAAF) base at Williamtown, NSW.
These involve the replacement of the Class C Control Zone with 2 new Class C Control Zones, and the replacement of numerous restricted areas with 9 new Class C controlled airspace volumes. These changes, resulting from an earlier Joint Aeronautical Study of Williamtown Airspace by CASA and the RAAF, are broadly supported by industry and, in fact, yield greater access to uncontrolled airspace around Newcastle to civilian aircraft.
The new Class C airspace that has been created at Williamtown, NSW replaces the non‑standard use of restricted areas to manage this airspace, and is supported by industry.
The creation of 2 new control zones at Williamtown, NSW standardises the associated airspace structure.
However, for both these major changes and the more routine minor changes in the updated instrument, the normal Office of Airspace Regulation (OAR) consultation processes have been followed and recorded.
Legislation — the Act
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, the regulations may confer functions and powers on CASA in connection with the administration and regulation of Australian-administered airspace.
Under subsection 11(2) of the Act, the regulations may make provision for, and in relation to, various matters, including the classification and designation of airspace, and the determination of controlled aerodromes, flight information areas, flight information regions and control areas and zones.
Legislation — the regulations
Under subregulation 5(1) of the Airspace Regulations 2007, as amended (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 Convention on International Civil Aviation (the Chicago Convention)
Under subregulation 5(2) of 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 repealed, a determination ceases to have effect at the time, in the event or in the circumstances specified in the determination or on repeal 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.
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 (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Under regulation 5 of 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 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 radiocommunication, navigation or ATC requirements. A controlled aerodrome is an aerodrome at which an ATC 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 twice yearly in an alternating 24- or 28-week cycle, in AA’s DAH, which is part of the AIP.
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. While AA remains responsible for the definitive description of Australian‑administered airspace, CASA underpins the legality and enforceability of AA’s DAH descriptions by embodying them in a determination under regulation 5 of AsR 2007.
AA has published its latest DAH, effective on, and from, 30 November 2023. This updated DAH contains some revision of the descriptions of relevant airspace information since the previous issue by AA in June 2023. Other than changes to the airspace associated with the RAAF base at Williamtown, the changes to the determination are essentially minor amendments to airspace volumes that are required to achieve operational outcomes. Consequently, it is necessary for CASA, under regulation 5 of AsR 2007, to update the previous determination issued by CASA in June 2023.
Summary of the determination
The determination repeals the previous instrument of determination (CASA OAR 046/23 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2023 (CASA OAR 046/23)) and redetermines it in an instrument with a range of changes effective on, and from, 30 November 2023.
This instrument determines relevant volumes of airspace as flight information regions and areas, as classifications of airspace, and as control zones, and determines relevant controlled aerodromes.
Details of the determination
More details of the determination are set out in Appendix 1.
Legislation Act 2003 (the LA)
Under subsection 8(4) of the LA, a written instrument is a legislative instrument if it is made under a power delegated by the Parliament and it determines, or alters the content of, the law with consequential effects on privileges, interests, obligations or rights. In effect, an instrument is relevantly taken to be a legislative instrument if it makes new law (rather than applying existing law to a case) and in doing so affects privileges, interests, obligations or rights.
The determination, by repealing and remaking in altered form the existing airspace management determinations is, therefore, a legislative instrument. It is subject to registration, and to tabling in the Parliament, under sections 15G and 38 of the LA, respectively. However, under items 3(a) and 5(c) of the tables in sections 10 and 12, respectively, of the Legislation (Exemptions and Other Matters) Regulation 2015, the determination is not subject to either disallowance or sunsetting as follows.
Disallowance
As the instrument relates to aviation safety and is made under AsR 2007, Part 2 of Chapter 3 of the LA (the disallowance provisions) does not apply to the instrument (as per item 3(a) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). The instrument is specifically prescribed, being a determination made under regulation 5 of AsR 2007.
As such, the instrument, which is of indispensable operational and navigational significance for both domestic and international aviation in Australia, is intended, in the interests of aviation safety, to have unqualified operation, certainty and clarity. It would cause serious confusion and safety risk for operators if disallowed, particularly for international operators. Therefore, it would not be appropriate for it to be subject to disallowance.
In any event, as a matter of longstanding and continuing practice, these determinations are repealed and remade every 6 months. In the unlikely event that an instrument of this kind would be one to which the Parliament, or a House of the Parliament, made its objections known to CASA, it would certainly not be remade in the same or similar form within 6 months without CASA considering and, as far as safe and practicable, addressing those parliamentary concerns.
Sunsetting
As the instrument relates to aviation safety and is made under AsR 2007, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 5(c) of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
The instrument, which is of indispensable operational and navigational significance for both domestic and international aviation, is intended, in the interests of aviation safety, to have unqualified operation and certainty, and it would not be appropriate for it to be subject to sunsetting. In any event, as a matter of longstanding and continuing practice since 2007, these determinations are repealed and remade with minor updating modifications every 6 months.
Although not applicable in this instance, it may be noted in passing that section 15 of AsR 2007 requires CASA to review all operationally-significant instruments at least once within every 5-year period after the instrument is made. In practice, determinations are reviewed every 6 months before being reissued in appropriately amended form.
Incorporations by reference
Under subsection 98(5D) of the Civil Aviation Act 1988 (the CA Act), the instrument may apply, adopt or incorporate any matter contained in any instrument or other writing.
A non-legislative instrument may be incorporated into a legislative instrument made under the CA Act, as that non-legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).
Under paragraph 15J(2)(c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained.
There are no such specific documents incorporated into the determination.
Consultation
Consultation on the determination was carried out using a standardised procedure as follows.
The specific airspace change proposals contained in the determination were made available for consultation, which in some instances included by being posted by CASA on its website. Public and aviation industry comments, especially those of the airspace users of any particular airspace, were invited on these proposals.
In addition, where possible, relevant Aviation State Engagement Forums (AvSEFs), previously known as Regional Airspace and Procedures Advisory Committees (RAPACs), were notified of the proposed adjustments and their views sought.
AvSEFs are State-based aviation forums who are advised of papers promulgated on the AvSEF website, covering all matters relating to airspace and related procedures in Australia in their particular areas of responsibility. AvSEF membership is open to all stakeholders of the Australian aviation industry, including associations, organisations, and independent entities.
Any representations made by airspace users and others in the course of this consultation process are taken into account by CASA. There were no substantive objections or reservations concerning the changes proposed for the airspace classification determination.
The next DAH revision, and the associated determination instrument, are expected to be made on or about 13 June 2024.
CASA is satisfied that the nature, extent, and duration of the consultation it conducted was appropriate and that no further consultation would be appropriate or necessary in these circumstances.
Office of Impact Analysis (OIA)
CASA considers that this instrument represents the administration of existing regulatory requirements. OIA has provided general advice that the administration of existing regulatory requirements are exempt from the preparation of an Impact Statement.
Sector risk, economic and cost impact
Economic and cost impact
Subsection 9A(1) of the CA Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the CA Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses, and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution, and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
While the changes to the airspace around the RAAF base at Williamtown appear significant, the introduction of Class C controlled airspace in place of restricted areas provides greater clarity to users around expectations for operating within the airspace and has been extensively consulted with industry. The determination is, in most other respects, almost identical to its predecessor from 6 months ago with which operators are familiar and to which operations have been adjusted without any significant objection. The key changes made by the determination from its predecessor are described on page 1, and are predominantly minor in nature. Therefore, in terms of economic and cost impacts for subsection 9A(3) of the CA Act, the determination will have no detrimental material, economic or cost impact on aircraft operators or pilots in command.
Sector risks
There are no increased, or differential, sector risks arising from the determination.
Rural and regional impacts
As far as practicable, Explanatory Statements drafted by CASA for subordinate legislation seek to identify the impact on the various categories of operations, as well as on communities, in regional and remote Australia served by those operations and how these impacts have been considered.
In the case of the determination, there are no identified rural and regional impacts that differ in any material way from the general economic and cost impacts, or sector risks, described above.
Environmental impact
Under subsection 9A(2) of the CA Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any specific negative environmental impacts as a result of the determination, as compared to its repealed predecessor. Thus, the instrument as such will have no specific new effects on the environment.
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 is compatible with human rights and, to the extent that it may also limit human rights by imposing certain limitations on freedom of movement by aviators, those limitations are reasonable, necessary and proportionate to protect aviation safety in the use of airspace.
Making and commencement
The instrument has been made by the Branch Manager, Air Navigation, Airspace & Aerodromes, National Operations & Standards Division, a delegate of CASA, in accordance with subsection 73(2) of the CA Act.
As required by subregulation 5(3) of AsR 2007, following registration, the determination commences on 30 November 2023, the day it is published in the AIP DAH.
Appendix 1
Details of CASA OAR 226/23 — Determination of Airspace and Controlled Aerodromes, Etc. (Designated Airspace Handbook) Instrument 2023
Section 1 — Name
Under this section, the determination is named CASA OAR 226/23 — Determination of Airspace and Controlled Aerodromes, Etc. (Designated Airspace Handbook) Instrument 2023 to identify its purpose.
Section 2 — Commencement
Under this section, the determination commences on 30 November 2023. It was published in the AIP DAH as required by subregulation 5(3) of AsR 2007.
Section 3 — Repeal
Under this section, the previous determination, CASA OAR 046/23, is repealed.
Section 4 — Definitions
Under this section, some terms and phrases are defined for clarity.
Section 5 — Determinations of airspace and controlled aerodromes, etc.
Under subsection 5(1), the CASA delegate determines that the volumes of airspace described in a Schedule listed in an accompanying table (the Table, see below), are the areas, regions or zones, or have the airspace classifications (in accordance with Annex 11 to the Chicago Convention), mentioned in the Table for the Schedule. The Table indicates as follows:
Schedule | Areas, regions, zones or classifications |
Schedule 1 | Flight information regions |
Schedule 2 | Flight information areas |
Schedule 3 | Class A airspace |
Schedule 4 | Class C airspace |
Schedule 5 | Class C Control Zones |
Schedule 6 | Class D airspace |
Schedule 7 | Class D Control Zones |
Schedule 8 | Class E airspace |
Schedule 9 | Class G airspace |
Schedule 10 | Controlled aerodromes |
Under subsection 5(2), the CASA delegate determines that the aerodromes mentioned in Schedule 10 are controlled aerodromes.
Under subsection 5(3), it is provided that, subject to sections 6 and 7, each of the determinations made by subsections 5(1) and 5(2) ceases to have effect only if the instrument is repealed or amended, and then only in accordance with the amendment.
Section 6 — Determination that airspace of a class becomes airspace of another class
Under subsection 6(1), the CASA delegate determines that the airspace classified as Class A, C, D, E or G by section 5 above (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 6(2).
Under subsection 6(2), and subject to subsection 6(3), a volume of airspace with an initial classification ceases to be airspace of that class and becomes airspace of another specified class 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 6(3), airspace that would become classified as airspace of another class 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 6(4), the airspace becomes the specified class as intended when the temporary requirement ceases.
Under subsection 6(5), the determination made by subsection 6(1) ceases to have effect only if the determination instrument is repealed or amended, and then only in accordance with the amendment.
Section 7 — Emergency determination that airspace of a class becomes airspace of another class
Under subsection 7(1), the CASA 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 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 7(2).
Under subsection 7(2), 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 the delegate.
Under subsection 7(3), 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. Under subsection 7(4), an authorisation mentioned in subsections (2) and (3) must include the delegate’s determination that the grounds mentioned in subsection (3) exist.
Under subsection 7(5), an authorisation mentioned in subsections (2) and (3) may not remain in force for longer than 7 days but may be renewed in accordance with this section. Under subsection 7(6), the determination made in subsection (1) ceases to have effect only if the instrument is repealed, or amended, and then only in accordance with the amendment.
Section 8 — Determination for voice deactivation of Class C Control Zones
Under subsection 8(1), the CASA delegate determines that a volume of airspace described in Schedule 5 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 ATC authority to deactivate the Control Zone earlier than the specified finish time (early deactivation) in accordance with subsection (2).
A Note explains that activation times specified in a NOTAM are in Universal Time Coordinated (UTC) unless otherwise indicated.
Under subsection 8(2), early deactivation may only be carried out if the activity for which the activating NOTAM was published has been completed or otherwise terminated, and the early deactivation has been authorised by the delegate.
Under subsection 8(3), early deactivation may not occur earlier than 60 minutes before the specified finish time unless an amending NOTAM is issued.
Under subsection 8(4), 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. However, section 8 applies subject to section 9 which will override this provision and permit voice extension in certain airspace for a time-limited trial period.
A series of Notes offers guidance. 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 an extension to the specified finish time, an amending NOTAM IS required.
Note 4 sets out the proper pro forma for an activating NOTAM as follows:
Reference/year NOTAMN
A) [Insert details]
B) [Insert start time specified in UTC]
C) [Insert finish time specified in UTC]
D) [Insert periods of activity details]
E) [Insert details of Control Zone, including the following statement:
“active; however, may be subject to early deactivation. Check status with [insert details of ATC authority].”]
Schedule 1 — Flight information regions
This Schedule describes the flight information regions (FIR). These FIR encompass the entire airspace overlying continental Australia out to 12 nautical miles beyond the coastline, plus other airspace allocated to Australia by the International Civil Aviation Organization (ICAO). The effect of the determination is that this airspace is to be provided with a flight information service and an alerting service. For guidance only, a Note inserts a map of the FIR.
The impact of the new determination of Australian FIR is expected to be nil as these regions are in existence solely for the delineation for the flight information centre’s area of responsibility.
Schedule 2 — Flight information areas
This Schedule describes the flight information areas (FIA). These FIA encompass the entire airspace overlying continental Australia out to 12 nautical miles beyond the coastline plus other airspace allocated to Australia by ICAO. The effect of the determination is that FIA are airspace of defined dimensions, excluding controlled airspace, within which flight information and alerting services are provided by an ATS unit.
The impact of the new determination of Australian FIA is expected to be nil as these regions are in existence solely for the delineation for the flight information centre’s area of responsibility.
Schedule 3 — Class A airspace
This Schedule describes the Class A airspace. The effect of the determination is that in these areas only instrument flight rules (IFR) aircraft are permitted. All flights are to be provided with an ATC service and be separated from each other.
The impact of the new determination of Class A airspace is expected to be negligible as the majority of this airspace is already in existence as previously established airspace for IFR operations within the Australian FIR. Any changes are minor adjustments only.
Schedule 4 — Class C airspace
This Schedule describes the Class C airspace. The effect of the determination is that in these areas IFR and visual flight rules (VFR) aircraft are permitted. All flights are to be provided with an ATC service and IFR flights are to be separated from other IFR and VFR flights. VFR flights are to be separated from IFR flights and receive traffic information in respect to other VFR flights.
The impact of the new determination of Class C airspace is expected to be negligible as the majority of this airspace is already in existence as previously established airspace for IFR and VFR operations within the Australian FIR. The new Class C airspace that has been created at Williamtown, NSW replaces the non-standard use of restricted areas to manage this airspace and is supported by industry.
Schedule 5 — Class C Control Zones
This Schedule describes the Class C Control Zones. The effect of the instrument is that these areas contain the paths of IFR flights arriving and departing from aerodromes to be used under instrument meteorological conditions (IMC).
The impact of the new determination of Class C Control Zones is expected to be negligible. These zones are established for current IFR and VFR operations within the Australian FIR. Generally, any changes are minor adjustments only, but noting that the replacement of the control zone at Williamtown with 2 new control zones reduces the footprint of the primary control zone.
Schedule 6 — Class D airspace
This Schedule describes Class D airspace. The effect of the determination is that in these areas IFR and VFR aircraft are permitted. All flights are to be provided with an ATC service and IFR flights are separated from other IFR flights and receive traffic information in respect of VFR flights. VFR flights receive traffic information in respect of all other flights.
The impact of the new determination of Class D airspace is expected to be negligible. This airspace is established airspace for current IFR and VFR operations within the Australian FIR. Any changes are minor adjustments only.
Schedule 7 — Class D Control Zones
This Schedule describes the Class D Control Zones. The effect of the instrument is that these areas contain the paths of IFR flights arriving and departing from aerodromes to be used under IMC.
In terms of the minor adjustments made, the impact of the new determination of Class D Control Zones is expected to be negligible. These zones are established for current IFR and VFR operations within the Australian FIR.
Schedule 8 — Class E airspace
This Schedule describes Class E airspace. The effect of the determination is that in these areas IFR and VFR aircraft are permitted. IFR flights are to be provided with an ATC service and IFR flights are separated from other IFR. All flights will receive traffic information so far as practical.
The impact of the new determination of Class E airspace is expected to be negligible as the majority of this airspace is already in existence as previously established airspace for IFR operations within the Australian FIR.
Schedule 9 — Class G airspace
This Schedule describes Class G airspace. The effect of the determination is that in these areas IFR and VFR aircraft are permitted. The impact of the new determination of Class G airspace is expected to be negligible as the majority of this airspace is already in existence as previously established airspace for all flight operations within the Australian FIR. Any changes are minor adjustments only.
Schedule 10 — Controlled aerodromes
Under regulation 3.03 of the Air Services Regulations 1995, certain qualified employees of AA may give air traffic instructions and air traffic clearances to an aircraft at a controlled aerodrome or in airspace that is determined to be of a particular class. This Schedule lists the aerodromes that are controlled aerodromes. The effect of the determination is to identify the aerodromes at which licensed AA air traffic controllers may issue enforceable directions and instructions to aircraft. Any changes are minor adjustments only.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA OAR 226/23 — Determination of Airspace and Controlled Aerodromes, Etc. (Designated Airspace Handbook) Instrument 2023
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 5 of the Airspace Regulations 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 Convention on International Civil Aviation (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. Such a determination is a legislative instrument.
Human rights implications
Each of the determinations in the legislative instrument may indirectly engage the right to freedom of movement in the air under Article 12 of the International Covenant on Civil and Political Rights (the ICCPR). This arises because, under other civil aviation rules, not all aircraft are permitted to fly in every classification of airspace as they might choose. However, this right is more directly engaged by the primary requirements of airspace regulation designed for aviation safety and conformity with the standards of the International Civil Aviation Organization under the Chicago Convention.
The orderly regulation of classes of airspace for different kinds of flight also has the effect in increasing aviation safety generally. To this extent, the determination instrument engages the right to life under Article 6 of the ICCPR, and the right to safe and healthy working conditions for air crew under Article 7 of the International Covenant on Economic, Social and Cultural Rights. However, in each instance, the engagement has the effect of directly or indirectly promoting the relevant right.
The instrument is otherwise 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. To the extent that the instrument engages relevant rights, the engagement is either reasonable, necessary and proportionate, or the right is positively promoted.
Conclusion
The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate to protect aviation safety in the use of airspace.
Civil Aviation Safety Authority