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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.
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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 +4.2
(A+B+C+D)
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.
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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).
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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
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(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.
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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
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(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.
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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.
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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.
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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.
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