Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION AMENDMENT REGULATIONS 2000 (NO. 7) 2000 NO. 294

Statutory Rules 2000 No. 294

Issued by the Authority of the Minister for Transport and Regional Services

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2000 (No. 7)

Subsection 98(1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation. Paragraphs 98(3)(s) and (t) of the Act provide that such regulations may deal with, inter alia, the planning, construction, establishment, maintenance, operation and use of air traffic services and the personnel engaged in providing those services.

Officers of the Australian Defence Force (ADF) provide air traffic control services in airspace at a number of locations around Australia. These services are provided to civil aircraft as well as military aircraft. Following a decision of the Northern Territory Magistrate's Court in late 1999, there has been some concern that air traffic control instructions and clearances issued by ADF controllers to civil aircraft are not legally binding upon those aircraft, giving rise to concerns about the efficacy of those instructions and clearances and the safety of airspace controlled by the ADF.

The concerns stem principally from the operation of regulation 100 of the Civil Aviation Regulations 1988 (CARs). CAR 100 makes air traffic control instructions (as defined) binding on civil aircraft, and requires civil aircraft to obtain air traffic control clearances before operating in certain controlled airspace. Air traffic control instructions and clearances may only be issued by persons "performing duty in Air Traffic Control". Through a convoluted series of definitions, it is arguable that only Airservices Australia or its agents at law can issue binding air traffic control instructions and effective air traffic control clearances for the purposes of CAR 100.

The amendments clarify the position that the ADF has the same powers and obligations in relation to civilian air traffic control as Airservices Australia (at least in relation to those aerodromes and that airspace which are under the control of the ADF). Defence has given assurances that it will provide air traffic services in accordance with CASA standards; CASA will participate in audits of the provision of these services by Defence.

The Regulations also make a number of corrections to the CARs of a typographical or consequential nature.

Details of the Regulations are attached.

The amendments commenced on gazettal.

ATTACHMENT

Civil Aviation Amendment Regulations 2000 (No. 7)

DETAILS OF THE REGULATIONS

Regulation 1 - Name of Regulations

The regulations are called the Civil Aviation Amendment Regulations 2000 (No. 7).

Regulation 2 - Commencement

The regulations commenced on gazettal.

Regulation 3 - Amendment of the Civil Aviation Regulations 1988

The Civil Aviation Regulations 1988 are amended as set out in the Schedule 1.

Schedule 1 - Amendments

Item 1 - Subregulation 2 (1), both definitions of air traffic

Due to inadvertent errors in past amendments to the Civil Aviation Regulations 1988, subregulation 2 (1) contains two slightly different definitions of air traffic. Item 1 repeals both definitions and replaces them with a single definition which is consistent both with Annex 11 of the Chicago Convention and the Air Services Regulations.

Item 2 - Subregulation 2 (1), definition of Air Traffic Control

Item 2 repeals the current definition of Air Traffic Control, which is limited to Airservices Australia, and replaces it with a definition which includes the Defence Force in its capacity as provider of air traffic control services. Because the definition is no longer a proper noun, it is not capitalised.

Item 2 effects the key amendment to the CARs. By adding the Defence Force to the definition, wherever "air traffic control" appears in the CARs it is to be read as including the Defence Force. The Defence Force thereby has the same powers and obligations in relation to civilian air traffic control services as Airservices Australia, in relation to aerodromes and airspace over which it has control. Because the CARs generally do not apply to military aircraft, the Defence Force's powers and obligations in relation to control of military aircraft are unaffected.

Item 3 - Subregulation 2 (1), definition of air traffic control service

The definition of air traffic control service no longer relies upon a cross-reference to the Air Services Act 1995, but is amended to make it consistent with the definition in Annex 11 to the Chicago Convention.

Items 4 and 5 - Subregulation 2 (1), definitions of Air Traffic Service, ATS, and Flight Service

With the rephrasing of the definitions of air traffic, air traffic control, and air traffic control service, the definitions of Air Traffic Service and ATS become superfluous. They are simply definitions which feed into those other definitions (as well as the definition of Flight Service, see Item 5). Item 4 repeals the definitions of Air Traffic Service and ATS.

Item 5 replaces "ATS" with "AA" (that is, Airservices Australia), in the definition of Flight Service, as the definition of ATS is repealed by Item 4.

Item 6 - Subregulation 2 (1), definition of flying training area, paragraph (b)

Item 6 corrects an error in paragraph (b) of the definition of flying training area, by replacing "Air Services Act" with "Air Services Regulations".

Items 7, 8 and 10 - Regulations 101, 102 and 241, headings

Items 7, 8 and 10 replace the headings of regulations 101, 102 and 241, to replace "Air Traffic Control" with "air traffic control" (see also Item 11).

Item 9 - Paragraph 102 (1) (a)

Regulation 102 of the Civil Aviation Regulations 1988 prohibits properly trained and qualified people from acting in air traffic control. The only people permitted to perform duty in air traffic control are those authorised by CASA or holding air traffic controller licences issued under the CARs. Item 9 of the Schedule amends CAR 102 to enable the Defence Force to authorise people to perform duty in air traffic control.

Item 11 - Further amendments - references to Air Traffic Control

The definition of air traffic control is no longer capitalised, as it is not a proper noun (see also Items 2, 7, 8 and 10). Item 11 replaces all references to "Air Traffic Control" in the CARs with "air traffic control".

Item 12 - Further amendments - references to Air Traffic Control unit etc

Item 12 replaces all references to "Air Traffic Control unit" in the CARs with "air traffic control".