Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

Administered by Department of Defence

Legislation au F2018L00344 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Defence Personnel

Defence Act 1903

Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

 

 

GENERAL SUMMARY

 

The Defence Act 1903 (the Act) has been amended by the Defence Legislation Amendment (Instrument Making) Act 2017 to insert new Part IXD—Defence aviation areas. Part IXD enables the Minister to declare an area to be a defence aviation area, including height restrictions that apply to buildings, structures and objects within the area.

 

New section 117AD of the Act provides that the regulations may prescribe certain matters in relation to defence aviation areas. The Defence Amendment (Defence Aviation Areas) Regulations 2018 (the Amending Regulations) are made under section 117AD of the Act. The Amending Regulations insert new Part 11A—Defence aviation areas in the Defence Regulation 2016 (the Defence Regulation).

 

This instrument is a declaration of a defence aviation area made under section 117AD of the Act. Together, Part IXD of the Act, Part 11A of the Defence Regulation, and declarations made under section 117AD of the Act replace the content of the Defence (Areas Control) Regulations 1989, which were scheduled to sunset on 1 April 2018.

 

The new scheme for defence aviation areas

 

Defence bases, air weapons ranges and low flying training areas play a significant role in the Defence strategy for Australia. They are essential for maintaining Defence’s high training standards, operational capability and ability to respond to emergencies. Safe aircraft operations at military and joint-user airfields are not only concerned with defence aviation, but are also essential for the safety of the local community. The new scheme for defence aviation areas imposes height controls around a number of defence airfields in order to provide obstacle-free airspace for aircraft, Defence navigation aids, radio equipment, and surveillance facilities such as airfield radars.

 

The new scheme for defence aviation areas is substantially the same as the scheme that was previously provided for in the Defence (Areas Control) Regulations 1989. The scheme includes:

 

  • legislative instruments declaring certain areas to be defence aviation areas, and specifying height restrictions that apply within those areas;

 

  • requirements to obtain approval before constructing a building, structure or object that either exceeds the height restrictions applying in a defence aviation area, or that will generate air turbulence or plumes above the height restrictions in a defence aviation area;

 

  • requirements to obtain approval before bringing in, having or using an object that is hazardous to aviation in a defence aviation area;

 

  • offences associated with constructing a building, structure or object, or bringing in, having or  using an object without a relevant approval, or in a way that breaches conditions of an approval;

 

  • powers to direct the removal, marking, lighting, screening, modification or relocation of a building, structure or object in a defence aviation area that exceeds the height restrictions or is otherwise hazardous to aviation, and offences if a person fails to comply with a notice;

 

  • provisions that are subject to monitoring  under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014, as modified by section 117AF of the Act, enabling entry to property by consent or with a warrant to monitor compliance or to take action to deal with buildings, structures or objects in a defence aviation area that is hazardous to aviation;

 

  • provisions providing for compensation to cover loss of land value, loss or damage or expenses incurred in certain circumstances, or any acquisition of property that may occur; and

 

  • merits review by the Administrative Appeals Tribunal of decisions to refuse to grant an approval or to grant an approval on conditions, and directions in relation to the removal, marking, lighting, screening, modification or relocation of a building, structure or object.

 

In civil aviation, similar content is included in regulations made under the
Airport Act 1996 and the Civil Aviation Act 1988, but these regulations do not generally apply in relation to defence aviation.

 

Purpose of the Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

 

This instrument declares an area in the vicinity of RAAF Base East Sale, in Victoria, to be a defence aviation area. The area is depicted in the map in Schedule 1, and includes height restrictions that apply throughout the area.

 

While the map has been improved, the boundaries of the defence aviation area and the applicable height restrictions are the same as those that were previously prescribed in Schedule 14 of the Defence (Areas Control) Regulations 1989.

 

Authority for Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

 

This instrument is made under section 117AC of the Act. Under section 117AC, the Minister may, by legislative instrument, declare an area of land, sea or airspace in or adjacent to Australia to be a defence aviation area. The Minister must not declare an area unless the Minister is satisfied that it is necessary for the defence of Australia for any of the matters mentioned in paragraphs 117AD(a) to (c) of the Act to apply in relation to the area, and in particular, the matters are necessary for the purpose of preventing or reducing hazards to aircraft or aviation-related communication, navigation or surveillance. Matters mentioned in paragraphs 117AD(a) to (c) include:

 

  • the regulation or prohibition of the construction or use of buildings, structures or objects within defence aviation areas;
  • the regulation or prohibition of the bringing of objects into, or having objects within, defence aviation areas; or
  • the removal (in whole or in part), marking, lighting, screening, modification or relocation of buildings, structures or objects (including trees or other natural obstacles) within defence aviation areas.

 

Communication of information about defence aviation areas to the public

 

Defence has developed a webpage, which will be available on the Defence website, providing detailed information about declared defence aviation areas, the processes for applying for relevant approvals under Part 11A of the Defence Regulation, and information about hazardous objects. The webpage will include accessible versions of the map at Schedule 1.

 

Defence is also working with local councils and other relevant planning authorities to provide information about defence aviation areas and approval requirements under the Defence Regulation, which can, where relevant, be conveyed to members of the public who seek planning or buildings approvals within defence aviation areas. 

 

Operation of the Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

 

Attachment A provides a provision-by-provision description of the operation of this instrument.

 

Legislative instrument

 

This declaration is a legislative instrument for the purposes of the Legislation Act 2003.

 

Consultation

 

It was not necessary to consult widely in relation to this declaration as the defence aviation area is the same as the affected area previously prescribed in the Defence (Areas Control) Regulations 1989. 

 

Commencement

 

This instrument commences on 26 March 2018.

 

Attachment

 

A: Provisions in the Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

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 instrument

The Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018 sets out an area in the vicinity of RAAF Base East Sale to be a defence aviation area, and specifies height restrictions that apply to buildings, structures and objects within that area. The declaration means that the provisions of Part IXD of the Defence Act 1903 and Part 11A of the Defence Regulation 2016 apply within the area.

Human rights implications

This legislative 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.


Attachment A –Provisions in the Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018

Section 1 – Name

 

Section 1 provides for the instrument’s name: Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018.

 

Section 2 – Commencement

 

Section 2 provides for the Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018 (the declaration) to commence at the same time as Part 2 of Schedule 1 to the Defence Legislation Amendment (Instrument Making) Act 2017 commences, which amended the Defence Act 1903 (the Act) to insert Part IXD – Defence aviation areas. The relevant Part of the amending Act commences on a day to be fixed by proclamation, which has been proclaimed to be 26 March 2018.

 

Section 3 – Authority

 

Section 3 provides that the declaration is made under subsection 117AC(1) of the Act.

 

Section 4 – Definition

 

This section includes a note that a number of expressions used in this instrument are defined in section 4 of the Act, including ‘defence aviation area’. 

 

In the declaration, ‘Act’ means the Defence Act 1903.

 

Section 5 – Declaration of RAAF Base East Sale Defence Aviation Area

 

Subsection 5(1) provides that for the purposes of subsection 117AC(1) of the Act, the RAAF Base East Sale Defence Aviation Area is declared to be a defence aviation area.

 

Subsection 5(2) provides that the ‘RAAF Base East Sale Defence Aviation Area’ is the areas of land in the vicinity of RAAF Base East Sale in Victoria that are depicted on the map set out in Schedule 1 to the instrument.  

 

Subsection 5(3) makes it clear that areas depicted by white space on the map set out in Schedule 1 are not included in the RAAF Base East Sale Defence Aviation Area.

 

Section 6 – Specification of height restrictions that apply within the area   

 

Subsection 6(1) provides that for the purposes of subsection 117AC(3), height restrictions apply in relation to buildings, structures and objects (including trees and other  natural obstacles) within the RAAF Base East Sale Defence Aviation Area.

 

Subsection 6(2) provides that the height restrictions described in the legend to the map set out in Schedule 1 apply in the corresponding area depicted on the map.

 

Schedule 1 – Map

 

Schedule 1 contains the map depicting the RAAF Base East Sale Defence Aviation Area. It also includes various height restrictions that apply within the area, as described in the legend.

 

 

 

Overview

The Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018 was enacted to address the need for an updated legislative framework governing defence aviation areas around Australian Defence Force bases. This Declaration was made under section 117AC of the Defence Act 1903, enabling the Minister for Defence Personnel to declare specific areas as defence aviation areas. The Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018, which came into effect on 26 March 2018, designates a particular area in the vicinity of RAAF Base East Sale in Victoria as a defence aviation area, imposing height restrictions on buildings, structures, and objects within this area. This legislation is aimed at ensuring safe aircraft operations at military and joint-user airfields, which are crucial for maintaining Defence’s high training standards, operational capability, and emergency response. The declaration and associated regulations replace the previous Defence (Areas Control) Regulations 1989, ensuring continued protection for the necessary obstacle-free airspace for aircraft, Defence navigation aids, radio equipment, and surveillance facilities such as airfield radars.

Scope and Application

The Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018 is a legislative instrument under the Defence Act 1903, establishing a defence aviation area around RAAF Base East Sale in Victoria and imposing height restrictions on buildings, structures, and objects within this area. The declaration applies to all persons and entities within the specified geographical boundaries, which include land in the vicinity of the base as depicted on the map in Schedule 1. The primary objective is to ensure obstacle-free airspace for aircraft and defence-related communication, navigation, and surveillance systems, thereby maintaining high training standards and operational capabilities of the Defence. The declaration is made under section 117AC of the Defence Act, which empowers the Minister to declare an area as a defence aviation area if it is necessary for the defence of Australia. The specific height restrictions are outlined in the legend of the map provided in Schedule 1. The declaration is effective from 26 March 2018, the same date that Part IXD of the Defence Act, which governs defence aviation areas, commenced. This declaration replaces the previous provisions in the Defence (Areas Control) Regulations 1989, ensuring continuity in the regulatory framework for defence aviation areas. The declaration includes provisions for obtaining approvals for constructions that exceed height restrictions or pose hazards, as well as powers to direct the removal or modification of hazardous objects. There are also provisions for compensation and merits review of certain decisions. The new scheme operates in conjunction with the Defence Amendment (Defence Aviation Areas) Regulations 2018 and the Defence Regulation 2016, which provide additional regulatory details and enforcement mechanisms. The declaration does not engage any of the applicable rights or freedoms under the international human rights instruments, thus is compatible with human rights.

Key Provisions

The Defence (RAAF Base East Sale Defence Aviation Area) Declaration 2018 (the Declaration) declares the area in the vicinity of RAAF Base East Sale in Victoria as a defence aviation area, as defined under the Defence Act 1903 (the Act). This area is depicted on the map set out in Schedule 1 of the Declaration and includes specified height restrictions that apply to buildings, structures, and objects within the area (sections 1, 5, and 6). The Declaration also specifies that the height restrictions described in the legend of the map in Schedule 1 apply to the corresponding areas depicted on the map (subsection 6(2)). The Declaration imposes several obligations on parties and entities within the declared defence aviation area. Firstly, it requires that any construction of buildings, structures, or objects that exceed the specified height restrictions, or that generate air turbulence or plumes above the height restrictions, must obtain approval (Part IXD of the Act and Part 11A of the Defence Regulation 2016). Additionally, any object that is hazardous to aviation must also obtain approval before being brought into, or used within, the defence aviation area (Part IXD of the Act and Part 11A of the Defence Regulation 2016). Failure to obtain the necessary approvals constitutes an offence under the Act (section 117AD(a) and (b) of the Act). The Act further outlines offences and penalties for non-compliance with the provisions of the Declaration. For instance, constructing a building, structure, or object without the required approval, or in a manner that breaches the conditions of an approval, is an offence (section 117AD(a) and (b) of the Act). Similarly, bringing into, or having, an object that is hazardous to aviation without approval, or in a manner that breaches the conditions of an approval, is also an offence (section 117AD(c) of the Act). The maximum penalties for these offences are not explicitly stated in the Declaration but would typically be determined under the applicable sections of the Defence Act and Defence Regulation. Moreover, the Minister has the power to direct the removal, marking, lighting, screening, modification, or relocation of buildings, structures, or objects within the defence aviation area that exceed the height restrictions or are otherwise hazardous to aviation (section 117AD(a) to (c) of the Act). Failure to comply with such a direction is an offence, and the Act provides for the imposition of penalties (section 117AD(a) to (c) of the Act). The Declaration also includes provisions for monitoring under the Regulatory Powers (Standard Provisions) Act 2014, enabling authorised persons to enter property to monitor compliance or to take action to deal with hazardous objects (section 117AF of the Act). Compensation provisions are included for loss of land value, loss or damage, or expenses incurred, or for any acquisition of property that may occur (section 117AE of the Act). Additionally, the Administrative Appeals Tribunal has jurisdiction to review decisions to refuse to grant an approval or to grant an approval on conditions, and directions in relation to the removal, marking, lighting, screening, modification, or relocation of buildings, structures, or objects (section 117AG of the Act).

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