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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