Part 172 (Air Traffic Service Providers) Amendment (Facilities & Equipment) Manual of Standards 2023

Explanatory Statement

Civil Aviation Safety Regulations 1998

Part 172 (Air Traffic Service Providers) Amendment (Facilities & Equipment) Manual of Standards 2023

Purpose

Chapter 3 of the Manual of Standards issued for Part 172 of the Civil Aviation Safety Regulations 1998 (CASR) provides standards for the design, siting, construction, equipping and maintenance of air traffic control facilities. A key purpose of the instrument is to amend Chapter 3 to enable electro-optical technology (known as visual surveillance systems, or VSS) in the provision of aerodrome control services at aerodromes. A VSS includes video cameras and optical surveillance systems that would augment or improve human surveillance at existing control towers. The technology could also enable “remote” towers, already in use in several countries. The amendments introduce standards for the use of VSS.

The instrument also extends the requirements that apply for control towers first commissioned after 1 July 2000, to runways newly commissioned or modified after 1 July 2000. This addresses an existing gap in the scheme.

Also, the duplication in Chapter 3 of standards mentioned in Annex 11 to the Chicago Convention, that are already applicable because they have been incorporated by reference in Part 172 of CASR, has been removed.

The instrument substitutes Chapter 3 to include the changes above. Other changes have been made to modernise the drafting styles and forms (including the numbering), in line with current drafting practices.

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR and Civil Aviation Regulations 1988.

Part 172 of CASR provides for approval of air traffic service providers (ATS providers) and their regulation. Division 172.C.3, deals with the standards for facilities and equipment used for providing air traffic services.

Under subregulation 172.022(1) of CASR, CASA may issue a Manual of Standards for Part 172 of CASR, setting out various standards for air traffic services. Under subregulation 172.095(1), an ATS provider must, at all times, make available for use by its personnel the facilities and equipment necessary for providing, in accordance with the standards set out in the Manual of Standards, the air traffic services covered by its approval.

Under subregulation 172.095(2), the equipment required for subregulation 172.095(1) must include equipment of the kinds specified in the Manual of Standards.

Under subregulation 172.095(3), any facilities and equipment mentioned in Chapter 6 of Annex 11 to the Chicago Convention that the provider uses in providing an air traffic service must comply with the standards of that chapter.

Under paragraph 11.250(a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.

Under subsection 14(1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14(2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98(5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

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. Under subsection 13(1) of the LA, subsection 33(3) applies to legislative instruments as if each provision of the instrument were a section of an Act.

Background

Control towers can be found at many larger aerodromes. Their prominence above an aerodrome’s skyline is necessary to give local air traffic controllers clear unobstructed views of the aerodrome surfaces and surrounding airspace.

Control towers must be designed and positioned with careful consideration of the viewing needs of the controllers. For aerodromes that are required to have an air traffic control tower, the current standards (as set out in the Manual of Standards) require this tower to have an unobstructed view if commissioned prior to the year 2000 and for control towers commissioned from the year 2000, a more prescriptive definition of adequate line of sight for runways and other manoeuvring areas, such as taxiways. An unobstructed view or adequate line of sight of these areas is essential for the safe, expeditious and efficient provision of air traffic control services to aircraft using the aerodrome.

An unintended consequence of the exclusive focus on newly-constructed control towers is that nothing covers the situation on an aerodrome with an existing control tower where a runway is newly constructed or modified (for example, lengthened). On several occasions since 2000, a runway has been constructed or modified and the ATS provider has found after the event that the views or movement detection capabilities for the runway were not the same as would have been required if a new control tower had been constructed.

Replacing a control tower or modifying the existing control tower (e.g., increasing its height) is a way, albeit an expensive one, to address a deficiency in viewing needs. This is recognised internationally and alternative options are available, including the use of electro-optical systems called visual surveillance system (VSS). For example, video imagery of obscured parts of an aerodrome can be displayed in the control tower to assist controllers to perform their duties. Going a step further, traditional control towers in some countries have been completely replaced by a more cost-effective solution of a VSS located in a facility without the visual prominence of a traditional control tower building. London City Airport is an example of an aerodrome where aerodrome control services are entirely provided with the use of VSS.

The European Union Aviation Safety Agency (EASA) validated the technology through extensive trials and VSS is recognised by the International Civil Aviation Organization (ICAO) as a means for meeting the observational requirements for aerodrome control services. However, the existing standards in Chapter 3 of the Manual of Standards, require direct human observation from traditional control towers and thus inhibit any consideration of VSS within Australia for addressing observational issues or addressing future control tower needs.

Overview of instrument

The instrument amends the standards for control towers at controlled aerodromes to enable the use of VSS. The amendment also ensures that sightlines or views from existing facilities are preserved despite any infrastructure developments on an aerodrome. Further, the opportunity is being taken to omit any of the existing standards in the Manual of Standards that replicate an equivalent standard from Chapter 6 of Annex 11 to the Chicago Convention, that has been incorporated under the legislative framework.

The instrument inserts a new Chapter 3 into the Manual of Standards, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

Documents incorporated by reference

In accordance with paragraph 15J(2)(c) of the LA, the following table contains a description of the documents incorporated by reference into the legislative instrument, the organisation responsible for each document and how they may be obtained. The table also states how the document is incorporated.

ICAO Document 4444

ICAO Document 4444 is publicly available but subject to copyright, i.e., it is a commercial product for which there is a cost to obtain a copy. This cost is not considered to be unreasonably onerous for operators to whom the document is most relevant, but it does involve a modest impost for some others, although academic and other researchers may obtain free access through university library subscriptions.

CASA has no effective control over these costs, and it is considered extremely unlikely that the relevant owner of the intellectual property in the document would sell CASA the copyright at a price that would be an effective and efficient use of CASA’s appropriated funds, or would otherwise permit CASA to make the document freely available.

CASA has incorporated the document in the instrument because, under the Chicago Convention, it is appropriate and necessary to modernise the safety regulatory scheme in the Part 172 MOS, and because no other similar document that services the same aviation safety purpose is freely available.

CASA has noted the views of the Senate Standing Committee on Regulations and Ordinances (in its report Parliamentary scrutiny of delegated legislation, tabled out of session on 3 June 2019) that:

The incorporation of material by reference (particularly where that material is not publicly available) has been a longstanding concern for the committee. [para 3.65]

and:

The committee appreciates that it may in some cases be costly to provide free, public access to all incorporated Australian and international standards. Nevertheless, the committee reiterates that one of its core functions is to ensure that all persons subject to or interested in the law may readily and freely access its terms. It intends to continue to monitor this issue. Any justification for a failure to provide for public access to incorporated documents, and any action the committee takes in relation to this matter, will be determined on a case-by-case basis. [para 3.75]

CASA appreciates the Committee’s concern and to mitigate the situation as far as currently practicable proposes that where an incorporated document is copyright and not otherwise freely available to the public, but is available to CASA as a licenced subscriber, CASA will, by prior arrangement, make CASA’s copy available, for in-situ viewing, free of charge, at any office of CASA.

Aeronautical Information Publication, or AIP

The definition ICAO Doc. 4444 provides that the document is subject to the differences mentioned in Gen 1.7 of Part 1 of the AIP. Under section 13 of the Legislation Act 2003, an expression used in an instrument has the same meaning as in the enabling legislation. AIP is defined in the CASR Dictionary to have the same meaning as in the Air Services Regulations 2019. The Air Services Regulations define Aeronautical Information Publication or AIP to mean “the Aeronautical Information Publication published in accordance with section 14, as amended from time to time”. It is, therefore, incorporated as in force or existing from time to time.

Content of instrument

Section 1 sets out the name of the instrument.

Section 2 provides that the instrument commences the day after it is registered.

Section 3 provides that the Manual of Standards issued under regulation 172.022 of CASR is amended as set out in Schedule 1.

Schedule 1

Item [1] substitutes a new Chapter 3. Much of the text being substituted is largely unchanged, other than to introduce the new requirements, and to remove reference to standards mentioned in Annex 11 that are already incorporated into the scheme by paragraph 172.065(1)(b). The substitution of the Chapter is to enable reformatting and numbering to reflect current drafting practices.

Section 3.01 sets out the scope of the Chapter, and that it is made for the purposes of regulation 172.095 of CASR (about facilities and equipment).

Section 3.02 sets out definitions of ICAO Doc. 4444 and visual surveillance system for the purposes of Chapter 3. The definition of ICAO Doc. 4444 serves to incorporate the document into the Chapter, as the document is in force from time to time. The meaning of the term visual surveillance system is incorporated from ICAO Doc. 4444.

Subsection 3.03(1) provides that a control tower must be designed, oriented and equipped to enable a controller to enable visual observation, achieved through direct out-of-the-window observation or indirect observation using a visual surveillance system (that meets the requirements of section 3.05) of the manoeuvring area and relevant runway strips, service roads, the aerodrome movement area and aircraft in flight at or in the vicinity of the aerodrome.

Subsections 3.03(2) and (3) provide standards for control towers relating to minimising the impacts of glare, reflection and noise on controllers, and having signal lamp facilities.

Subsection 3.04(4) provides the standards for control towers in relation to detecting the movement of a departing aircraft. A control tower must be designed, oriented and equipped to enable a controller to detect the movement of a departing aircraft as soon as possible after take off and no later than 5 seconds after the take-off run commences.

Subsection 3.04(1) applies this rule to control towers commissioned after 1 July 2000.

Subsection 3.04(2) applies the rule if a runway at a control tower commissioned on or before 1 July 2000 is modified after that date and, as a result, the controller’s ability to maintain visual observation of the runway or to detect departing aircraft has been degraded. In these cases, the rule will begin to apply from 20 March 2025 onwards.

Subsection 3.04(3) applies the rule in relation to a runway at an old control tower (commissioned on or before 1 July 2000) if the runway was commissioned after 1 July 2000. In these cases also, the rule will begin to apply from 20 March 2025 onwards.

Section 3.05 provides that a visual surveillance system may be used in the provision of aerodrome control service to perform a function listed in Section 7.1 of ICAO Doc. 4444 only if the visual surveillance system meets the standards in Section 7.12 of that document. This is modelled on Section 7.12.1.1 of ICAO Doc. 4444.

Note 1 to section 3.05 explains that Section 7.1 of ICAO Doc. 4444 lists the functions of aerodrome control towers. Note 2 provides a signpost to the definition of the key term aerodrome control service in the CASR Dictionary that incorporates the meaning in Annex 11. Note 3 explains some implications of the fact that a visual surveillance system is a telecommunication service within the definition of that term in regulation 172.012 of CASR.

Section 3.06 provides for the facilities that area control centres and approach control units must have. There are no new requirements added to the previous standards but some replication of other standards from Annex 11 that already apply under subregulation 172.095(3) has been omitted. The note to subsection (1) points to this.

Legislation Act 2003

Paragraph 10(1)(d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument amends the Manual of Standards issued for Part 172 of CASR and is, therefore, also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Subsection 8(4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Sunsetting

Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument because the instrument relates to aviation safety and is made under CASR (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).

In this case, the instrument amends the Manual of Standards for Part 172 of CASR and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. The principal instrument deals with aviation safety matters and is intended to have enduring operation. It, therefore, would not be appropriate for it to be subject to sunsetting. The exemption from the sunsetting provisions affects parliamentary oversight by not requiring the principal to be remade and subject to further tabling and disallowance in the Parliament under sections 38 and 42 of the LA. However, Part 172, including the Manual of Standards made under it, is currently the subject of a post-implementation review (PIR) within CASA. The amendments resulting from the PIR will be subject to parliamentary scrutiny.

Consultation

In accordance with section 17 of the LA, and section 16 of the Act, CASA carried out public consultation by publishing a summary of the proposed changes to Chapter 3 of the MOS on the CASA website on 26 September 2022 and inviting comment on it from the aviation industry and the public.

The consultation period ended on 24 October 2022. There were 6 responses: 1 from an ATS provider, 2 from air traffic controllers, 2 from pilots, and 1 from a CASA staff member. The majority of the responses were either supportive or “undecided/not my area of expertise”. On the other hand, one respondent challenged the concept of indirect human observation for air traffic services and the apparent contradiction between this concept and ATS provider assurances that controllers will always be locally based, and highlighting the vulnerability of the interconnecting data links. CASA considers it has satisfactorily addressed the comments, including agreeing to provide a 24-month transitional arrangement for aspects of the changes.

CASA is satisfied that no further consultation in relation to this instrument is necessary or appropriate.

Sector risk, economic and cost impact

Subsection 9A(1) of the 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 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.

The instrument makes minor or machinery changes to an existing instrument and there will be no significant change to the economic or cost impact on individuals, businesses or the community. The Office of Impact Analysis made the assessment that the amendments are unlikely to have a more than minor regulatory impact, as such, the preparation of an Impact Analysis (IA) is not required (OIA id: 23-04130).

Impact on categories of operations

The instrument is likely to have a beneficial effect on flight operations at controlled aerodromes by reducing delays potentially resulting from ATS having to take extraordinary precautions to determine visually that an aircraft has commenced take off or that an aircraft not in direct line of sight of the control tower is not causing a safety obstruction.

Impact on regional and remote communities

Similar to the assessment of sector risk, economic and cost impact, the instrument makes minor or machinery changes to an existing instrument and there will be no impact on regional and remote communities.

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Making and commencement

The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73(2) of the Act.

The instrument commences on the day after it is registered. As an amending instrument, it is automatically repealed in accordance with section 48A of the LA.

Attachment 1

Statement of Compatibility with Human Rights

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

Part 172 (Air Traffic Service Providers) Amendment (Facilities & Equipment)
Manual of Standards 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

Chapter 3 of the Manual of Standards issued for Part 172 of the Civil Aviation Safety Regulations 1998 (CASR) provides standards for the design, siting, construction, equipping and maintenance of air traffic control facilities. A key purpose of the instrument is to amend Chapter 3 to enable electro-optical technology (known as visual surveillance systems, or VSS) in the provision of aerodrome control services at aerodromes. A VSS includes video cameras and optical surveillance systems that would augment or improve human surveillance at existing control towers. The technology could also enable “remote” towers, already in use in several countries. The amendments introduce standards for the use of VSS.

The amendment also ensures that sightlines or views from existing facilities are preserved despite any infrastructure developments on an aerodrome. Further, the opportunity is being taken to omit any of the existing standards in the Manual of Standards that replicate an equivalent standard from Chapter 6 of Annex 11 to the Chicago Convention, that has been incorporated under the legislative framework.

The instrument inserts a new Chapter 3 into the Manual of Standards, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

Human rights implications

The instrument may engage the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR).

Right to life under the ICCPR

The instrument may engage the right to life. This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework, including Part 172 of CASR and the Manual of Standard for the Part, is to uphold aviation safety by prescribing standards for the provision of air traffic control services. It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote, and enhance aviation safety. Accordingly, the amendments to the Manual of Standards are crafted and intended, as far as practicable, to promote and enhance aviation safety standards for the provision of air traffic control services. The instrument promotes the right to life under Article 6 of the ICCPR by legislating for the standards to be met in the provision of air traffic control services, that will minimise the risk of accidents and prevent accidental death.

Conclusion

This legislative instrument is compatible with human rights as it promotes the right to life and does not raise any human rights issues.

Civil Aviation Safety Authority