EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 152
Issued by the Attorney-General
Legislative Instruments Act 2003
Legislative Instruments Amendment Regulations 2007 (No. 1)
Section 62 of the Legislative Instruments Act 2003 (the LIA) provides that the
Governor-General may make regulations prescribing all matters required or permitted by the LIA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the LIA.
The LIA establishes a comprehensive regime for the management of Commonwealth legislative instruments, including the creation of the Federal Register of Legislative Instruments as a repository for Commonwealth legislative instruments, explanatory statements and compilations. The LIA also improves the mechanisms for Parliamentary scrutiny of legislative instruments. The LIA commenced operation on 1 January 2005. On the same day, the Legislative Instruments Regulations 2004 (the Principal Regulations) came into operation.
The Principal Regulations facilitate the operation of the LIA by (amongst other things) providing exemptions from the LIA or parts of the LIA.
The purpose of the Regulations is to amend the Principal Regulations to bring certain exemptions from the LIA or from parts of the LIA up to date as a consequence of changes in legislation to which those exemptions refer.
Details of the Regulations are set out in the Attachment, including the reasons why the particular amendments to the Principal Regulations were made.
The LIA specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the LIA.
Regulations 1 to 3 of and Schedule 1 to the Regulations commence the day after they are registered on the Federal Register of Legislative Instruments. The commencement of Schedule 2 to the Regulations coincides with the commencement of the Airspace Regulations 2007.
Consultation was unnecessary for this legislative instrument, as this instrument is of a minor or machinery nature only. It has no direct, or substantial indirect, effect on business.
ATTACHMENT
Details of the Legislative Instruments Amendment Regulations 2007 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the
Legislative Instruments Amendment Regulations 2007 (No. 1).
Regulation 2 – Commencement
This regulation provides that regulations 1 to 3 of and Schedule 1 to the Regulations commence on the day after they are registered and for the commencement of Schedule 2 to coincide with the commencement of the Airspace Regulations 2007.
Regulation 3 – Amendment of the Legislative Instruments Regulations 2004
This regulation provides that the Legislative Instruments Regulations 2004 (the Principal Regulations) are amended as set out in Schedules 1 and 2.
Schedule 1 – Amendment commencing on the day after registration
Item [1] – Schedule 1, Part 2, item 2
Schedule 1, Part 2, item 2 of the Principal Regulations provides an exemption from the Legislative Instruments Act 2003 (LIA) for Orders made under the Program and Awards Statute 2004, made under the Australian National University Act 1991.
These orders deal with the content of courses and programs offered by the
Australian National University (ANU). Other ANU statutes, rules and orders are exempt from disallowance and sunsetting under the LIA. However, because the orders under the Program and Awards Statute 2004 are largely administrative in nature, dealing in considerable detail with academic matters, are subject to frequent change and are available electronically to students, there was considered to be no particular benefit in registering them on the Federal Register of Legislative Instruments and so they were exempted from the whole of the LIA.
The Program and Awards Statute 2004 has been repealed and remade as the Program and Awards Statute 2006.
Item 1 repeals and replaces Schedule 1, Part 2, item 2, so that the exemption from the LIA applies to an Order made under paragraph 4.1(c) or (f) and subsection 6.2 of the Programs and Awards Statute 2006, made under the Australian National University Act 1991. This item updates the current exemption and includes a more specific description of the exempt provisions than previously contained in the Principal Regulations.
Schedule 2 – Amendments commencing on the commencement of the
Airspace Regulations 2007
The Principal Regulations contain a number of exemptions for provisions in the
Air Services Regulations 1995 (the Air Services Regulations). Parts of the latter regulations are replaced, with effect from 1 July 2007, by the
Airspace Regulations 2007 (the Airspace Regulations) in consequence of the transfer of airspace regulatory functions from Airservices Australia to the Civil Aviation Safety Authority (CASA).
Schedule 2 contains a number of amendments to the exemptions in Schedule 1, 2 and 3 to the Principal Regulations to update the references to the
Air Services Regulations which have been replaced with the equivalent provisions in the Airspace Regulations.
Item [1] – Schedule 1, Part 2, item 1A
Schedule 1, Part 2, item 1A of the Principal Regulations provides an exemption from the LIA for instruments made under subregulation 2.05(2) of the Air Services Regulations and declarations made under regulation 2.07 of the
Air Services Regulations. Subregulation 2.05(2) of the Air Services Regulations has been repealed and replaced by subregulation 9(2) of the Airspace Regulations and regulation 2.07 of the Air Services Regulations has been repealed and replaced by regulation 6 of the Airspace Regulations. The regulations in the
Airspace Regulations are of the same nature as the regulations which have been removed from the Air Services Regulations.
Regulation 6 of the Airspace Regulations allows CASA to declare an area of Australian territory to be:
- a prohibited area if, in the opinion of CASA, it is necessary for reasons of military necessity to prohibit the flight of aircraft over the area
- a restricted area if, in the opinion of CASA, it is necessary in the interests of public safety or the protection of the environment to restrict the flight of aircraft over the area to aircraft flown in accordance with specified conditions, or
- a danger area if, in the opinion of CASA, there exists within or over the area an activity that is a potential danger to aircraft flying over the area.
Subregulation 9(2) of the Airspace Regulations is a companion measure to
regulation 6. It provides that, where an area is declared a restricted or danger area, CASA may vary the air traffic services that would otherwise be provided, in accordance with Annex 11 of the Chicago Convention, for that airspace.
This item ensures that instruments made under regulation 6 and subregulation 9(2) of the Airspace Regulations are exempt from the LIA, as their predecessors were. The continuation of this exemption ensures that CASA can respond quickly and efficiently to emergency situations.
Instruments made under regulation 6 and subregulation 9(2) of the
Airspace Regulations may be required in urgent circumstances. Any delay in the enforcement of these instruments could adversely impact on the safety or integrity of air navigation or aircraft operation or could otherwise threaten public safety or environmental protection.
Item [2] – Schedule 2, item 1B
This item amends Schedule 2, item 1B of the Principal Regulations so that relevant references to the Air Services Regulations are replaced with references to the corresponding regulations in the Airspace Regulations.
Schedule 2, item 1B of the Principal Regulations provides that each of the following legislative instruments are not subject to disallowance:
(a) a designation or determination made under regulation 2.02 of the
Air Services Regulations
(b) a direction given under regulation 2.03 of those Regulations
(c) a determination made under regulation 2.04 of those Regulations
(d) a designation made under 2.09 of those Regulations, and
(e) instructions given under subregulation 3.03(3) or (4) of those Regulations.
Regulation 2.02 of the Air Services Regulations has been repealed and replaced by regulation 11 of the Airspace Regulations. Regulation 11 allows CASA to designate air routes and airways for the purpose of assisting the safe navigation of aircraft. Under subregulation 11(2), CASA may be able to determine the conditions of use of a designated air route or airway. Under subregulation 11(3), a designation or determination will not take effect until it is published in the Aeronautical Information Publication (AIP) or a Notice to Airmen (NOTAM).
Regulation 2.03 of the Air Services Regulations has been repealed and replaced by regulation 12 of the Airspace Regulations. Regulation 12 allows CASA to give directions, relating to the safety of aircraft, in connection with the use or operation of a designated air route or airway, or air route or airway facilities. Under subregulation 12(2), a direction will not take effect until it is published in the AIP or a NOTAM.
Regulation 2.04 of the Air Services Regulations has been repealed and replaced by regulation 5 of the Airspace Regulations. Subregulation 5(1) allows CASA to make the following determinations about controlled aerodromes and airspace:
(a) that a volume of airspace is:
(i) a flight information area, or
(ii) a flight information region
(b) that a volume of airspace extending upwards from ground or water to a specified altitude is a control zone
(c) that a volume of airspace extending upwards from a specified altitude is a control area
(d) that a volume of airspace is airspace classified in accordance with Annex 11 to the Chicago Convention, as Class A, B, C, D, E, F or G, and
(e) that an aerodrome is a controlled aerodrome.
Subregulation 5(3) provides that a determination does not take effect until it is published in the AIP or a NOTAM. However, under subregulation 5(4), a determination has effect for a specified period, or until a specified event happens, or for the duration of specified circumstances, unless earlier revoked.
Regulation 2.09 of the Air Services Regulations has been repealed and replaced by regulation 8 of the Airspace Regulations. Regulation 8 allows CASA to designate an area as a flying training area. Subregulation 8(4) provides that a designation will not take effect until it is published in the AIP or a NOTAM, as provided for in subregulation 8(6).
The regulations in the Airspace Regulations are of the same nature as the regulations which have been repealed from the Air Services Regulations.
This item ensures that instruments made under regulations 5, 8, 11 and 12 of the Airspace Regulations are exempt from disallowance, as their predecessors in the
Air Services Regulations were. Disallowance of instruments made under regulations 5, 8, 11 and 12 of the Airspace Regulations would adversely impact on the orderly management of the aviation industry, increasing uncertainty for commercial aircraft operators, providers of air traffic services and aviation regulators. The amendments to Schedule 2, item 1B ensure certainty in regulation of the industry contributing to reduction of commercial and safety risks for the industry and the public.
This item also amends Schedule 2, subitem 1B(e) of the Principal Regulations so that the words ‘those regulations’ have been replaced with
‘the Air Services Regulations 1995’. Subregulations 3.03(3) and (4) have not been repealed and will remain in the Air Services Regulations.
Item [3] – Schedule 3, after item 1
Subsection 54(2), table item 3 of the LIA provides that instruments relating to aviation safety made under the Air Services Act 1995 or the Air Services Regulations are not subject to sunsetting. This item inserts a new item 1A into Schedule 3 of the Principal Regulations so that instruments relating to aviation safety made under the Airspace Regulations are also exempt from sunsetting.