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Airspace Bill 2007

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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

AIRSPACE BILL 2006

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable Mark Vaile, MP)

 



 

AIRSPACE BILL 2006

 

OUTLINE

 

As a nation, Australia manages and provides air traffic services to eleven per cent of the airspace over the earth’s surface.

Australian-administered airspace is a finite resource to be managed and used safely, having regard to national security, environmental protection, efficiency and access.

The primary purpose of this Bill is to transfer the function of airspace regulation from Airservices Australia (Airservices) to the Civil Aviation Safety Authority (CASA). This will strengthen Australia’s planning and administration of airspace and address any perception of a conflict of interest between Airservices in its roles as both a commercial air navigation service provider and regulator of the level of service to be provided in particular volumes of Australian administered airspace. 

The Government considers it important that it set clear objectives for Australian administered airspace and that there be a rigorous process for reviewing and robustly assessing Australia’s airspace services and facilities and proposed changes to airspace administration. The proposed institutional arrangements will provide a solid base for decisions to be made on the future of Australian-administered airspace and the integration of Australian-administered airspace into the global system, while ensuring that Australian-administered airspace continues to make its contribution to a safe, secure and efficient aviation industry.

This Bill will require the Minister to make an Australian Airspace Policy Statement on the administration and regulation of, and policy objectives for, Australian administered airspace.

This Bill will provide power to make regulations to confer upon CASA functions and powers in relation to the administration and regulation of Australian administered airspace. In practice, this will accommodate the transfer of airspace regulation functions from Airservices Australia (Airservices) to the Civil Aviation Safety Authority (CASA). It will establish principles for the regulation and administration of Australian administered airspace, including fostering efficient use and equitable access, subject to the safety of air navigation as the most important consideration.

The Bill will not affect powers and functions related to the management and use of airspace in the Defence Act 1903 and the Defence Special Undertakings Act 1952 . The Department of Defence is a key stakeholder in Australia’s airspace arrangements and has had a long-standing relationship with Airservices on the regulation and administration of Australian administered airspace, and will work closely with CASA when the airspace regulatory functions are transferred, this would include consultation with Defence when making regulations, and other matters that may affect Defence activities, operations or practices.



Financial impact statement

 

A new ongoing policy function in the Department of Transport and Regional Services (‘DOTARS’) will be established. It will include provision of advice on airspace policy and development and maintenance of the Australian Airspace Policy Statement.  The costing of this administrative unit - to be drawn from the budget - is as per the following table

 

Financial Implications

 

 

2007-08

($ m)

Department of Transport and Regional Services

 

Change to Departmental Expenses (A)

+4.2

Change to Administered Expenses (B)

0.0

Departmental Capital

0.0

Administered Capital

0.0

 

 

Measure - Total Change in Resourcing (A+B+C+D)

+4.2

 

 

Measure Total (Impact on Departmental Equity):

0.0

Measure Total (Impact on Administered Equity):

0.0

 

 

Measure Total (Impact on Fiscal Balance)

- 4.2

Measure Total (Impact on Underlying Cash)

- 4.2

 

 

 

Further Details

 

The need for further funding for this function will be reviewed in the context of the 2008-2009 Budget.  

 

 

 



NOTES ON CLAUSES

Part 1 Preliminary

 

Clause 1: Short Title

 

1.       This Bill, once proclaimed, may be cited as the Airspace Act 2006 .

 

Clause 2: Commencement

 

2.       Clause 1, Short Title, and Clause 2, Commencement, will commence on the day on which this Bill receives the Royal Assent .  The remaining clauses in the Bill will commence on a single day to be fixed by Proclamation.  However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Bill receives the Royal Assent, they commence on the first day after the end of that period.

 

Clause 3: Object of this Bill

 

3.       The object of this Bill is to ensure that Australian-administered airspace is administered and used safely, taking into account the following matters:

(a)            protection of the environment;

(b)           efficient use of that airspace;

(c)            equitable access to that airspace for all users of that airspace; and

(d)           national security.

4.       This object will ensure that due account is taken of matters relating to national security, protection of the environment, efficient use of airspace and equity of access to that airspace for all users and an appropriate balance is struck between them, subject to the safety of air navigation as the most important consideration.

Clause 4: Definitions

 

5.       Clause 4 contains definitions of terms used in the Bill, including definitions of ‘Airservices Australia’, ‘Australian-administered airspace’, ‘Australian Airspace Policy Statement’, ‘CASA’ (meaning the Civil Aviation Safety Authority) and ‘Chicago Convention”.  The terms ‘Airservices Australia’, ‘CASA’ and ‘Chicago Convention’ have been defined by reference to definitions of these terms in existing relevant legislation. For the purpose of this Bill, ‘Australian-administered airspace” does not include airspace administered by Australia at the request of another country, as this would be the subject of separate arrangements. “Australian Airspace Policy Statement’ is a new term in Australian legislation.

Clause 5: Bill binds the Crown

 

6.       Clause 5 provides that the Bill binds the Crown in all its capacities (ie the Commonwealth, the States and Territories).

 

Clause 6: External Territories

 

7.       This clause extends the Bill to every external Territory.

 

Clause 7: Extraterritorial application

 

8.       This Bill extends to acts, omissions, matters and things outside Australia.   To illustrate this, the definition of Australian-administered airspace extends to airspace allocated to Australia by the International Civil Aviation Organization that extends beyond Australia’s sovereign boundaries.

Part 2 Australian Airspace Policy Statement

 

Clause 8: Minister must make Australian Airspace Policy Statement (the Statement)

 

9.       Subclause 8 (1) establishes the requirement for the Minister to make a Statement of national airspace policy - the Statement.  The purpose of the Statement is to: define the basis for Australia’s airspace architecture; outline the Government’s objectives for airspace and air navigation services; describe a process for airspace change, including a risk assessment; and provide clear guidance to airspace regulators of the policy frameworks under which they operate. The Statement will also set out a strategy for the administration and use of Australian administered airspace.



The Minister’s power to make the Statement will not be delegable. The details relating to this Statement are set out in the remainder of clause 8.  In general, CASA must exercise its powers and perform its functions in a manner consistent with this Statement.  Under the Airspace (Consequentials and Other Measures) Bill 2006 (the consequential amendments Bill), the Civil Aviation Act 1988 will be amended to include a new section 11A that stipulates that, subject to subclause 9A(1) of the Civil Aviation Act 1988 (which requires CASA to regard the safety of air navigation as the most important consideration), CASA must exercise its powers and perform its functions in a manner consistent with the Statement. This amendment to the Civil Aviation Act 1988 will also require that CASA notify the Minister in writing if it proposes to exercise a power or perform a function in a manner that is inconsistent with the Statement, and provide its reasons for doing so. Some matters described in the Statement will also be covered by regulations.

10.   Subclause 8 (2) sets out the items that must, at a minimum, be included in the Statement.  This list requires that the Statement must:

(a)            specify and describe the classifications to be used to administer Australian-administered airspace- these must be consistent with the International Civil Aviation Organization (ICAO) classification system for airspace described in the Chicago Convention, or with differences lodged by Australia under Article 38 of the Chicago Convention; and



(b)           specify and describe the designations to be used for the purposes of restricting access to, or warning about access to, particular volumes of Australian-administered airspace. The equivalent provision to these designations in the current regime are the volumes of airspace above areas of Australian territory declared by Airservices to be prohibited, restricted or danger areas under Part 2 of the Airservices Regulations. these volumes of airspace currently include the airspace above Prohibited, Restricted and Danger areas defined in Air Services Regulations to be transferred to CASA; and

(c)            describe the processes to be followed by CASA as the airspace regulator when changing the classifications or designations of particular volumes of Australian-administered airspace - the Statement will describe a robust risk based decision-making process for major changes to the classification and designation of airspace. It is intended that the process to be followed for such changes will require at least the following three elements: a risk assessment; a cost benefit analysis; and consistency with Government policy objectives. The Statement will also ensure that major changes to the administration of airspace will also be tested through consultation with stakeholders; and

(d)           outline the Government’s policy objectives for the administration and use of Australian administered airspace; and

(e)            include a strategy for the future administration and use of Australian-administered airspace.  This strategy will make future airspace changes more predictable. For example, the strategy may include descriptions of how Australian-administered airspace will accommodate technological change.

11.   Subclause 8 (3) allows the Minister to include any other matters the Minister thinks appropriate.

 

12.   Subclause 8 (4) states that the Statement described in clause 8 must be consistent with the Chicago Convention.  This includes the Annexes to the Convention. Where Australia has notified differences under Article 38 of that Convention, the Statement must be consistent with those differences.

13.   Subclause 8 (5) provides that the Australian Airspace Policy Statement will be a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the Statement. This means that the Statement must be tabled as required by the Legislative Instruments Act 2003 , but is not disallowable and is not sun-settable. However, Clause 10 of this Bill ensures that it will be subject to regular review that includes a comprehensive consultation process.



 

Clause 9: Consultation before making Statement

 

14.   Clause 9 requires the Minister, when developing the Statement, to consult CASA, Airservices Australia and any other person or body the Minister thinks appropriate.  Consultation under Subclause 9(2) will include consultation with the Minister for Defence. It is likely that the first Statement will be developed as an interim statement in order to be in place at the point that regulations conferring relevant airspace functions and powers upon CASA and removing those functions and powers from Airservices are made. This will ensure that CASA has a complete legislative framework for administering and regulating Australian-administered airspace in place. Once the first instrument has been made it will form the basis for a longer term plan.

Clause 10: Statement must be reviewed every 3 years

 

15.   The Statement will be reviewed at least once every three years.  Clause 10 directs that the Minister must cause this to occur.  The intent of this provision is to ensure that there is no more than three years between the end of one review commissioned by the Minister and the end of the next.  In practice, the first few reviews are likely to occur more often than required by this Clause.

Part 3 Airspace regulation

 

Clause 11: CASA to administer and regulate Australian-administered airspace

 

16.   Clause 11 makes provision for regulations to be made under the Airspace Bill 2006 that provide CASA with both the powers and functions necessary to administer and regulate Australian-administered airspace.  It is likely that the majority of these regulations will be in similar terms to the regulations currently contained in Air Services Regulations Part 2. 

 

17.   At the time that the Airspace Regulations are made, Part 2 of the Air Services Regulations will be repealed, and all instruments made under those regulations will be grandfathered in order to maintain continuity of the airspace architecture in Australian-administered airspace.  Transitional provisions enabling regulations to be made to put this arrangement into effect are included in Schedule 3 of the related consequential amendments Bill.

 

18.   Subclauses 11(2)(a) to 11(2)(k) list some of the matters that may be dealt with in regulations under this Bill. This list is not exhaustive - subclause 11(3) notes that the matters listed under subclause 11(2) do not limit the matters for which regulations may be made under this Bill.

 

19.   The following subclauses under 11(2) describe matters that may be put into regulations to allow CASA to determine the appropriate services for particular volumes of airspace:

(a) the classification of volumes of Australian-administered airspace - consistent with Australia’s obligations under the Chicago Convention, or with differences to the convention lodged by Australia under Article 38 of the Chicago Convention  

(c) the determination of the services and facilities to be provided by the providers of air navigation services in relation to particular volumes of Australian-administered airspace - to allow CASA to make more detailed determinations in relation to the services and facilities to be provided than is provided under the ICAO classification system. It is envisaged that CASA will apply regulatory best practice and seek outcomes based regulatory approaches to the provision of services by providers of air navigation services, rather than prescriptive determinations. However, where, in the view of CASA, the type of service can only be determined by incorporating a description of the facilities required to provide it, then CASA may also determine those facilities;

(d) the designation of volumes of Australian-administered airspace for the purposes of restricting access to, or warning about access to, that airspace - to allow CASA to prohibit or restrict the flight of aircraft over particular areas, or warn that an activity is a potential danger to aircraft flying over a particular area;

            (e) the designation of air routes and airways in Australian-administered airspace and          the conditions of use of a designated air route or airway;  

(f) the giving of directions in connection with the use or operation of a designated air route or airway or of air route or airway facilities;

            (g) the determination of aerodromes as controlled aerodromes;

            (h) the determination of volumes of Australian-administered airspace as flight        information areas or flight information regions;

            (i) the determination of volumes of Australian-administered airspace as control areas         or control zones.

20.   Regulations may be made that give details of the timing and manner of reviews to be carried out by CASA of existing classification and designations of airspace, as per subclause 11(2)(b).  Clause 13 of this Bill provides details of the items that CASA will review. 

21.   Regulations may be made that empower CASA to regulate the provision of aeronautical information services in Australia.  It is intended that Airservices Australia will remain the provider of Australia’s aeronautical information service (AIS) pursuant to Annex 15 of the Chicago Convention. Subclause 11(2)(j) will enable CASA to regulate the quality of the information provided by both Airservices Australia and other providers of civil aeronautical information services in Australia.

22.   Regulations may be made that empower CASA to obtain information from the operators of aerodromes, the owners or operators of aircraft, or the providers of air navigation services.  This information will assist CASA in exercising its powers and functions under this Bill, including the conduct of reviews under Clause 13 of this Bill.

23.   Subclause 11(3) notes that the matters listed under Subclause 11(2) do not limit the matters for which regulations may be made under this Bill.

 

24.   Subclause 11(4) provides for regulations to be made in relation to any matters that are included in Airspace Regulations that prescribe penalties for offences against those regulations.  A penalty must not be more than 50 penalty units. 

25.   Subclause 11(5) provides for regulations to be made allowing CASA to prescribe charges in relation to the performance of a function, or the exercise of a power.  Subclause 11 (6) allows that such a charge may be set either by fixing the amount or by setting a method of calculation, while subclause 11(7) states that such a charge must not amount to taxation.  The purpose of this clause is to allow the costs of performing the airspace regulation and administration function to be recovered from the civilian aviation industry.

26.   Subclause 11(8) provides for the regulations to make provision for and in relation to CASA delegating its functions and powers to another person. This delegation is most likely when decisions are required in the management of Australian-administered airspace. For example, this could occur with respect to the designation and conditions of use of an air route or airway, and the giving of directions in connection with the use or operation of designated routes and airways. 

27.   Subclause 11(9) contains definition provisions, including definitions for ‘aerodrome’, ‘aircraft’, ‘air route’, ‘air route facilities or airway facilities’, and ‘airway’.  For the sake of consistency, the meaning of ‘aircraft’ has the same meaning as in the Civil Aviation Act 1988 .  The other terms will be defined in the Airspace Regulations.  Where possible, they will be the same as definitions under the Chicago Convention.  If there is no definition for that term under the Chicago Convention, they will be the same as the meaning currently contained in either the Civil Aviation Act 1988 or the Air Services Act 1995 .

Clause 12: Matters affecting CASA’s administration and regulation of Australian-administered airspace

 

28.   Clause 12 provides direction to CASA on how it expected to perform the functions and powers given to it in the Airspace Regulations, in particular to achieve the balance of matters referred to at clause 3 of this Bill, subject to obligations in sections 9A, 11 and 11A of the Civil Aviation Act 1988 . Clause 12 requires that CASA must actively encourage the efficient use of Australian-administered airspace and equitable access to it and ensure that national security concerns are accounted for. This will be done through the development of a close working relationship between CASA and the Department of Defence. This clause also requires CASA to take account of the capacity of Australian-administered airspace to accommodate changes in its use. This will require a forward looking perspective by CASA in performing its functions and exercising its powers under the Airspace Bill.

29.   It is likely that there will be situations where differing approaches to regulation will have differing outcomes in terms of safety, efficiency, environmental protection, equitable access and national security. This clause requires that CASA be active in seeking airspace regulatory and administrative solutions that provide greater overall returns to the Australian community without compromising safety.     

30.   Subclause 12(3) states that the list of considerations included in subclause 12(2) does not limit the matters that CASA may take into account when exercising its powers and functions under the Airspace Regulations.





 

Clause 13: Regular reviews

 

31.   As part of its role as the airspace regulator, clause 13 specifies that CASA is expected to conduct regular reviews of:

Subclause 13(1)  the existing classifications of volumes of Australian-administered airspace in order to determine whether those classifications are appropriate; and

            Subclause 13(2)  the existing services and facilities provided by the providers of air           navigation services in relation to particular volumes of Australian-administered airspace in order to determine whether those services and facilities are appropriate; and

Subclause 13(3)  Australian-administered airspace in general - in order to identify risk factors and to determine whether there is safe and efficient use of that airspace and is equitable access to that airspace for all users of that airspace.

      It is expected that CASA will undertake regular and on-going reviews to ensure that it meets its obligations as a pro-active airspace regulator under Clause 13. The requirement in this Clause that CASA conduct these regular reviews is separate to any process that CASA may put in place to satisfy itself that delegations it makes under Subclause 11(8) are being used appropriately.

Part 4 CASA advice on Australian Airspace Policy Statement or airspace regulation

 

Clause 14: CASA advice on Australian Airspace Policy Statement or airspace regulation

 

32.   Subclauses 14(1) and (2) provides for the Minister to request advice from CASA, by writing to CASA, on a matter related to the Australian Airspace Policy Statement or related to CASA’s functions or powers under the regulations made under this Bill.   CASA will be required to provide written advice to the Minister in response to any such written request in the time specified by the Minister.  This clause supplements the relationship between CASA and the Minister determined by the Australian Airspace Policy Statement. For example, the Minister may seek advice from CASA on how a particular decision it has made will be consistent with the Statement, or with Clause 12 of this Bill. The Minister may also approach CASA for an assessment on a proposed change to the Statement in advance of it being sent for consultation.

33.   Subclause 14(3) provides for the Minister to, in writing, delegate the power described in Subclauses 14(1) and (2) to the Secretary of the Department.

 

 

 

Part 5 Other matters

 

Clause 15: Regulations

 

34.   Clause 15 makes provision for the Governor General to make regulations prescribing matters required or permitted by this Bill to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Bill.