Bills Digest no. 115 2006–07
Airspace Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Airspace
Bill 2006
Date introduced:
29 November 2006
House:
House of Representatives
Portfolio:
Transport and Regional services
Commencement:
Sections 1 to 3 commence on Royal Assent. The operative
provisions (sections 3 to 15) commence on proclamation, or failing that,
six months after Royal Assent.
To transfer legislative responsibility for civilian airspace
management from Airservices Australia (ASA) to the Civil Aviation Safety
Authority (CASA).
Background
Under the Air Services Act 1995, ASA is the statutory
body with responsibility for Australian civilian airspace management.
By comparison, under the Civil Aviation Act 1988, CASA’s primary
responsibility is aviation safety regulation.
On 14 September
2006, it was announced
by the Minister for Transport and Regional Services the Hon Warren Truss
that plans to move airspace regulatory responsibility from ASA to the
Transport Department had been changed in favour of giving it to CASA:(1)
The Government has decided to transfer the airspace regulatory
function from Airservices Australia
to the Civil Aviation Safety Authority (CASA). This will address any
perceived conflict of interest between Airservices Australia's
service delivery functions and its role as the airspace regulator.
It has previously been announced that the function would
be shifted from Airservices Australia
to the Department of Transport and Regional Services. The decision to
transfer the function to the Civil Aviation Safety Authority (CASA)
was taken after careful note of industry views - especially that a dedicated
new unit within the safety regulator is the best home for the airspace
regulator. The decision reflects the Government's confidence in the
reform program currently underway in CASA and CASA's focus on improved
regulatory outcomes.
This function will become the responsibility of a distinct
operational unit within the Civil Aviation Safety Authority. This unit
will be called the Office of Airspace Regulation (OAR) and will have
the decision making powers for regulating civil airspace. The primary
objective of the airspace regulator is to put in place decisions that
ensure the safe, orderly and efficient flow of air traffic, cognisant
of national security, the protection of the environment, and the equitable
use of Australian airspace
Under the move, the costs of airspace regulation would
continue to be met through ASA’s en-route charges system and not through
any new charges.(2)
The Federal Government’s announced intention is to prescribe
ASA as a Government Business Enterprise (GBE) under the Commonwealth
Authorities and Companies Act 1997 following the removal of regulatory
functions to the Office of Airspace Management.(3) The corporation
will no longer necessarily be the domestic monopoly provider of tower
air traffic and aviation rescue and fire-fighting (ARFF) services.(4)
Note that ASA declared services prices of terminal navigation, ARFF and
en route services charges are monitored by the ACCC under Part VIIA of
the Trade Practices Act 1974.
Minister Truss also announced that a National Airspace
Plan would be developed by the Department of Transport and Regional Services
(DoTARS) as a statutory instrument to set out levels of service to be
provided to aircraft with a risk management and cost-benefit emphasis.
While safety has primacy, the Government believed that factors including
the environment, national security, access and efficiency deserve consideration
(i.e. obviously under its direction).(5) In the Airspace Bill,
this plan has been renamed as the Australian Airspace Policy Statement.
Aviator Dick
Smith has expressed concern that our airspace classifications and
procedures have never been properly updated since the old Flight Service
non-radar days. He believes that if these changes are not made that we
will end up with a major airline crash – most probably a controlled flight
into terrain caused in part by the lack of the proper use of the ASA radar
system, or even more likely a collision in the circuit area or on the
runway at an aerodrome because the air traffic controllers are not using
modern international procedures, or at a non-controlled aerodrome because
we do not have a UNICOM local radio operator.(6)
The Airspace Bill 2006 passed the House on 7 December
and awaits Senate debate. The issues it raises and the airspace debate
generally will continue to be acrimonious due to the strong personalities
involved and the contention that safety may be compromised in return for
cost savings. Any time airspace is changed and with cost savings as the
probable driver we might expect safety implications to be raised as an
issue. Until the cost versus safety nexus issue is resolved to the satisfaction
of all parties involved, aviation controversy will continue.
The Bill was referred to the Senate Standing Committee
on Rural and Regional Affairs and Transport. The committee tabled its
report
on 28 February 2007. Its recommendations were:
Recommendation 1
2.51 The Committee recommends
that clause 8 of the Airspace Bill 2006 be amended to require that a
statement made under subclause 8(1) must be made not later than 1 July 2007 and that such a statement
must be published in a readily accessible form in addition to the tabling
requirements which apply pursuant to subclause 8(5) of the bill.
Recommendation 2
2.52 The Committee recommends
that subclause 9(1) of the Airspace Bill 2006 be amended to require
the Minister to consult with key representatives of the Australian aviation
industry, as selected by the Minister, before making the Australian
Airspace Policy Statement.
Recommendation 3
2.53 The Committee recommends
that subclause 11(8) of the Airspace Bill 2006 be amended to either
specify the range of powers and functions which can be delegated or
the category of person to whom such powers and functions can be delegated.
Recommendation 4
2.54 The Committee recommends
that, subject to the preceding recommendations, the Senate pass the
Airspace Bill 2006 and the Airspace (Consequentials and Other Measures)
Bill 2006.
The Explanatory Memorandum states that:(7)
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.
It goes on to say that the cost to DoTARS will be $4.2
million for the 2007-08, with funding for subsequent years to ‘be reviewed’.
A major element of this cost is the development of the Australian Airspace
Policy Statement, which will presumably require an expansion of the current
Office of Airspace Management within DoTARS. Note that this office is
a different entity to the proposed Office of Airspace Regulation, which
will be a part of CASA.
No information is provided with respect to CASA. Presumably
the costs involved to CASA of its assumption of airspace management responsibility
will be recouped by appropriate ‘user pays’ charges.
New section 3 sets out the object of the Airspace
Bill 2006 (the Bill). It 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;
(d) national security.
Thus, although safety is the primary objective that must
guide the decisions and practices of CASA and the DOTARS Minister (the
Minister), they are obliged to consider the matters listed in (a)-(d)
as far as they are relevant to the particular decision or practice. However,
the weighting to be given to any of them in such consideration is, within
reason, a matter for CASA and the Minister.
New section 8 requires for the Minister to make
an Australian Airspace Policy Statement. The intent seems to be to put
various matters relating to how the Government intends to manage airspace
on the public record. Notably, the Statement must outline the Government’s
objectives for airspace and air navigation services and also set out the
processes to be followed where consideration is being given to changing
airspace classifications and the like: new subsection 8(2). In
relation to the latter, the Parliament Secretary’s second reading speech
comments:(8)
Importantly, the statement will require that major changes
to Australian airspace will be made only after the results of a risk
analysis, a detailed examination of the potential costs and benefits,
and inclusive consultation with stakeholders to rigorously test proposed
changes before they are implemented.
Note that new section 8 does not actually make
mention of risk analysis or cost benefit analysis. Presumably however
it is the Government’s policy intention to include such concepts in the
Statement – new subsection 8(3) effectively provides that the Minister
may include any matter in it that he or she thinks appropriate.
The Statement must be consistent with the Chicago Convention,
except where Australian airspace management or standards are different
from Chicago standards and
these differences have been duly notified as required under Chicago Convention
procedures.(9) In such cases, the Statement must be consistent
with the notified different standards.
The Minister must consult CASA, ASA and any ‘other person
or body the Minister thinks appropriate’ before making the Statement.
According to the Explanatory Memorandum, the Department of Defence will
be consulted,(10) although again this is not required under
the legislation.
In terms of the scope of the Statement, the Explanatory
Memorandum comments:
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.
New section 10 requires the Statement to be reviewed
every three years. It does not require a new one to be made as a consequence
of the review. There is no explicit requirement for consultation in the
review process, although new section 9 implies such consultation
will occur if a new Statement is made.
The Statement is a legislative instrument, but is not
disallowable: new subsection 8(5).
New section 11 allows for regulations to be made
under the Airspace Bill 2006 giving CASA the powers and functions relevant
to the administration and regulation of Australian-administered airspace.
These regulations may set out that CASA can charge a
fee for the ‘performance of a function, or the exercise of a power’: new
subsection 11(5). There is standard provision that such charge must
not amount to taxation: new subsection 11(7) – in other words any
charge must reasonably reflect the total cost of the relevant service
provided by CASA.
New subsection 11(8) allows the regulations to
deal with circumstances under CASA may delegate its functions and powers
to another person: new subsection 11(8). The Bill itself does not
place any limitations on the delegation. The Explanatory Memorandum comments:(11)
… 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.
As noted earlier in this Digest, the Senate Committee
reviewing the Bill recommended changes to the delegation power.
New section 12 deals with matters bearing on CASA’s
performance of the functions and powers conferred on it by the Regulations
made under new section 11.
CASA must ‘foster’ the efficient use of Australian-administered
airspace and equitable access to it by all users: new subsection 12(1).
It must also ‘take into account’ the capacity of Australian administered
airspace to accommodate changes in its use and national security: new
subsection 12(2). As mentioned above,(12) the requirement
to ‘take into account’ confers significant discretion on the decision-maker
as to the weight given to the relevant matter and as such it is arguable
that it is less onerous than the requirement to ‘foster’ in subsection
12(1). Subsection 12(4) states that the above matters are subject
to 9A to 11A of the Civil Aviation Act 1988. Section 9A states
that safety navigation is the most important priority for CASA, and section
11 requires CASA’s actions to be consistent with the Chicago Convention
and any other international agreements on air navigation. Section 11A
is to be inserted by the Airspace (Consequentials and other Measures)
Bill 2006 – it requires that CASA cannot act inconsistently with the Australian
Airspace Policy Statement unless it first informs the Minister.
New section 13 requires that CASA must conduct
‘regular reviews’ of airspace classifications and air navigation service
providers, as well more general matters including airspace use and management
covering safety, efficiency of use and equitable access. No timeframe
is specified, and the section is silent on whether the reviews are to
be made public.
New section 14 allows the Minister (or the Secretary,
if the Minister so delegates) to require CASA to give written advice to
him or her on any matter related to the Statement, or CASA’s functions
or powers set out in the regulations made under new section 11.
New section 15 is a standard provision
on making regulations.
- Airspace Management Reform in Australia,
the Hon Warren Truss, Media Release
14 September 2006. Note that the media release incorporated
a Ministerial Statement from which this quote is taken.
- ibid.
- ASA Corporate Plan July 2006-June 2011, 2006,
section 1.3. The Plan can be accessed at: http://www.airservices.gov.au/aboutus/corpdocuments/corporateplan.pdf.
- ibid., section 4.1.
- ibid.
- Brad Norington, ‘Air
Crash Inevitable, says Smith’ The Australian 7
December 2005 p. 8.
- Explanatory Memorandum, p. 2.
- The Hon De-Anne Kelly,
House of Representatives, Debates 29
November 2006, p. 7.
- Article 37 of the Chicago Convention provides standards
and recommended practices dealing with wide range of matters concerned
with the safety, regularity and efficiency of air navigation. These
standards and practices are generally included in Annexes to the Chicago
Convention. In cases where a State finds it impracticable to comply
in all respects with a standard, or to bring its own regulations or
practices into full accord with a standard, that notification be given
to ICAO, the State must notify ICAO of this difference under Article
38 of the Convention
- Explanatory Memorandum, p. 6.
- Explanatory Memorandum, p. 8.
- See discussion of new section 3.
Angus Martyn
Law and Bills Digest Section
Matthew James
Science, Technology, Environment and Resources Section
16 March 2007
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