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AIR SERVICES REGULATIONS 1995 NO. 223
EXPLANATORY STATEMENTSTATUTORY RULES 1995 No. 223
Issued by the Authority of the Minister for Transport
Air Services Act 1995
Air Services Regulations
Subsection 77(1) of the Air Services Act 1995 (the Act) empowers the Governor-General to make regulations prescribing matters required or permitted under the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act establishes Airservices Australia (AA) as a government business enterprise to provide Australia's national airways system. Together with the Civil Aviation Safety Authority (CASA), which will be responsible for the safety regulation of civil aviation in Australia, these two bodies will replace the Civil Aviation Authority (CAA). Under the Act AA has the functions, inter alia, to provide air traffic, rescue and firefighting, search and rescue, and aeronautical information services to the aviation industry.
Subsection 77(2) of the Act sets out the matters with which the regulations may make provision and these include:
* setting out the particulars of the services provided by AA and, in particular, specify the powers exercisable by AA or its employees in respect of those services;
* providing for a system of compensation for damage arising from wake vortices caused by the operation of "Commonwealth jurisdiction aircraft"; and
* prescribe the matters required to be prescribed in Part 5, Division 4 of the Act.
The Air Services Regulations (the Regulations):
* set out the powers of AA in relation to the designation and management of airspace;
* specify the functions, duties and powers of the Air Traffic Service, the Rescue and Firefighting Service, the Search and Rescue Service and the Aeronautical Information Service and the legal powers that the employees of AA have to perform these services;
* specify a system of compensation for damage arising from wake vortices caused by the operation of "Commonwealth jurisdiction aircraft". Wake vortices are particularly strong eddies, generated by aircraft wings as they descend to land on still days, that can cause damage to property especially through the removal of roof tiles. AA will assume the function of compensating property owners and recovering the cost of this from the aviation industry through its charges; and
* prescribing certain matters for the purposes of the Statutory liens provisions of the Act.
Details of the Regulations are contained in the Attachment.
PART 1 - PRELIMINARY
Regulation 1.01 - Citation
The Regulations will be known as the Air Services Regulations.
Regulation 1.02 - Commencement
The Regulations commence on the same day as the Act. The Act will commence on a day to be fixed by proclamation.
Regulation 1.03 - Interpretation
This regulation defines terms used in the Regulations that do not appear in the Act.
PART 2 - AIRSPACE MANAGEMENT
Regulation 2.01 - Purposes of Part 2
This regulation specifies that the provisions of Part 2 are to enable AA to carry out its function of providing an Air Traffic Service in accordance with its powers set out in Part 3 of the Regulations.
Regulation 2.02 - Designation of air routes and airways
This regulation empowers AA to:
* designate air routes and airways in Australian administered airspace for the purposes of assisting the safe navigation of aircraft; and
* determine the conditions of use of a designated air route or airway.
A designation or condition will have no effect until published.
Regulation 2.03 - Directions relating to air routes, airways and facilities
This regulation empowers AA to give directions, relating to the safety of aircraft, in connection with the use or operation of a designated air route or airway or a facility to permit the safe navigation of aircraft within Australian administered airspace.
Regulation 2.04 - Determination of controlled aerodromes and airspace etc.
This regulation empowers AA to determine that:
* an aerodrome is a controlled aerodrome, that is, aircraft movements are subject to air traffic control;
* airspace within specified horizontal and vertical points is either a control area; a control zone, a flight information area, a flight information region or Class A, B, C, D, E, F OR G airspace as defined in accordance with Annex 11 of the Chicago Convention.
Subregulation (2) allows AA, subject to specified conditions, to determine airspace to be of more than one class.
Subregulation (3) provides that, unless revoked, a determination by AA under subregulation (1) has effect for a specified period, or until a specified event occurs or for the duration of specified circumstances.
Subregulations (4) and (5) provide that a determination has no effect until published or during any period in which the relevant air traffic services are not provided.
Regulation 2.05 - Particulars of air traffic purposes
This regulation requires AA to publish details of the air traffic services that are to be provided, and the manner in which they are to be provided, at a controlled aerodrome, in controlled airspace of any class, in a flight information area or region, or in a control area or control zone.
Subregulations (2) and (3) enable AA to provide certain air traffic services in the airspace above an area that has been declared a restricted area or a danger area.
Regulation 2.06 - Notice of unavailability of air traffic services
This regulation requires AA, if it is practicable to do so, to publish details of the times that air traffic services are unavailable at a controlled aerodrome, in controlled airspace of any class, in a flight information area or region or a control area or a control zone.
Under this regulation AA will publish the general operating hours of air traffic services in the AIP. If there was to be a temporary change to these because of a special event or natural catastrophe then these would be notified generally by a NOTAM. If air traffic services were temporarily unavailable due to an equipment malfunction or a fire AA would notify aircraft of the change through its air traffic and flight information services.
Regulation 2.07 - Declaration of prohibited, restricted or danger areas
This regulation allows AA to declare prohibited areas, restricted areas or danger areas.
Under subregulation (2) AA must not declare an area to be a prohibited area unless, in the opinion of AA, it is necessary to prohibit the flight of aircraft over the area for military reasons. AA will use this power to "close" airspace because certain areas are being used for military purposes eg high speed aerial combat is being practised or a military exercise is being conducted. There are no areas in Australia that are currently prohibited.
Under subregulation (3) AA must not declare an area to be a restricted area unless, in the opinion of AA, it is necessary in the interests of public safety or the protection of the environment to restrict, by the imposition of conditions, the flight of aircraft over the area. AA will use this power to impose conditions on the flight of aircraft in areas that are contaminated or being used to send high frequency transmissions into outer space.
Under subregulation (4) AA must not declare an area to be a danger area unless, in the opinion of AA, there exists within or over the area an activity that is a potential danger to aircraft flying over the area. AA will use this power in circumstances where there was not a sufficiently high public safety requirement to declare an area to be restricted but nevertheless aircraft flying over the area should be alerted to a potential danger. An example would be aircraft using the airspace over an area that is involved in surveying or other unusual or emergency work such as the ferrying of passengers or cargo between two sites.
Subregulation (5) requires a declaration to specify an area by reference to its boundaries.
Subregulation (6) provides that, unless revoked, a declaration has effect for a specified period, until a specified event occurs or for the duration of specified circumstances.
Subregulation (7) provides that a declaration has no effect until published in accordance with regulation 2.08.
Regulation 2.08 - Publication of a declaration
This regulation specifies the manner in which a declaration of a prohibited area, a restricted area or a danger area must be published.
Regulation 2.09 - Designation of flying training areas
This regulation empowers AA, by written notice, to designate areas as flying training areas.
Subregulation (2) requires a designation to specify an area by reference to its boundaries.
Subregulation (3) provides that, unless revoked, a declaration has effect for a specified period, until a specified event occurs or for the duration of specified circumstances.
Subregulation (4) will provide that a designation has no effect until published.
PART 3 - AIR TRAFFIC SERVICES
Regulation 3.01 - Purpose of Part 3
This regulation specifies that the provisions of Part 3 are to set out the functions and powers of AA in relation to the provision of air traffic services.
Regulation 3.02 - Functions of the Air Traffic Service
This regulation identifies the functions of the Air Traffic Service provided by AA.
These functions accord with those in Annex 11 to the Chicago Convention. Unlike previous regulations made under the Civil Aviation Act 1988, the functions of the Flight Information Service and the Air Traffic Control have been amalgamated into those of the Air Traffic Service.
Regulation 3.03 - Air Traffic Services - directions and instructions
This is an important regulation which sets out the powers AA has to ensure that the Air Traffic Service can perform its functions.
Subregulation (1) empowers qualified AA employees to give directions, instructions, or clearances to aircraft at a controlled aerodrome or in a specified class of airspace. In practice this will:
* enable air traffic ground and approach controllers to give aircraft clearances to land and to take-off;
* empower radar controllers to tell pilots to change altitude or course to maintain a safe "separation" distance from other aircraft operating in the area; and
* allow directions and instructions to be given to pilots to change their speed so that an efficient flow of air traffic is maintained to minimise delays at busy aerodromes and throughout the entire airways system.
A qualified employee is one who holds an air traffic controller's licence in accordance with the Civil Aviation Regulations and who meets any other standards set by CASA and AA for personnel involved in the provision of air traffic services.
Subregulation (2) is an interpretive provision which clarifies that an air traffic clearance given in conjunction with air traffic instructions forms part of those air traffic instructions.
Subregulation (3) enables AA to give directions or instructions to aircraft involved in either IFR (Instrument Flight Rules) or VFR (Visual Flight Rules) flights about the use of a controlled aerodrome or in a specified class of airspace. AA will use this power to set out the procedures IFR or VFR aircraft are to follow at, controlled aerodromes or in a specified class of airspace.
Subregulations (4) and (5) enable AA to give specified instructions about the use of airspace above a restricted or danger area which vary from, and prevail over, instructions given under subregulation (3).
Subregulation (6) provides that an instruction under subregulation (3) or (4) has no effect until published.
Subregulation (7) defines the terms "air traffic instruction" and "air traffic clearance".
Regulation 3.04 - Removal of safety hazards
This regulation empowers AA to authorise persons to remove hazards to air traffic from any part of an aerodrome where it is necessary in the interests of safety or to facilitate and maintain an orderly flow of air traffic.
AA would use this power in emergency situations, for example, where:
* an aircraft had force landed and had not cleared the runway thereby preventing other aircraft from landing at that aerodrome;
* a vehicle had broken down on a taxiway or runway at a busy airport thereby creating an impediment to the efficiency of aircraft movements at the airport,
* animals have strayed onto an aerodrome and present a potential hazard to aircraft movements.
Under subregulation (2) AA will not be liable for any damage caused to the hazard by reason of its removal.
Subregulation (3) is an interpretive provision which clarifies that AA can exercise this power at a joint-user aerodrome, that is, an aerodrome under the control of the Defence Force under which civil operations are permitted by reason of an arrangement under section 20 of the Civil Aviation Act 1988.
PART 4 - OTHER AA SERVICES
Division 1 - Preliminary
Regulation 4.01 - Purpose of Part 4
This regulation specifies that the purpose of Part 4 is to set out the functions and powers of AA in relation to the provision of:
* rescue and firefighting services;
* search and rescue services; and
* an aeronautical information service.
Division 2 - Rescue and firefighting services
Regulation 4.02 - Functions of the Rescue and Firefighting Service
This regulation specifies the functions of the Rescue and Firefighting Service (RFFS) provided by AA.
Regulation 4.03 - Designation of officers in charge
This regulation empowers AA to designate a qualified employee, being one who has passed the tests and standards prescribed by CASA (if any) or AA for rescue and firefighting operations, as the officer in charge at a particular aerodrome. Subparagraph (b) allows officers to be appointed in respect of specified parts of an aerodrome so that the responsibility for RFFS operations at large aerodromes, such as Sydney (KingsfordSmith) Airport, may be allocated to more than one officer.
Regulation 4.04 - Duties and powers of officer in charge
This regulation specifies the powers exercisable by an officer in charge or a fire fighter during an RFFS operation.
Regulation 4.05 - Arrangements with State or Territory fire brigades
This regulation enables AA to enter into arrangements with the fire brigade of a State or Territory or a fire fighting service provided by the Defence Force or any other person or organisation.
Regulation 4.06 - Action not to lie against AA etc.
This regulation confers an immunity on AA, or an employee or agent, against an action for injury or damage arising from the exercise of a power under regulation 4.04.
Division 3 - Search and rescue services
Regulation 4.07 - Functions of the Search and Rescue Service
This regulation specifies the functions of the Search and Rescue Service (SAR) provided by AA.
Regulation 4.08 - Requisitioning transport for search and rescue operations
This regulation empowers AA, for the purposes of a SAR operation, to requisition (and engage persons to operate) any aircraft, water craft or land vehicle.
Regulation 4.091 - Compensation for loss caused by requisitioning
This regulation enables the owner of a requestioned aircraft, water craft or land vehicle (or person engaged to operate the same) to recover compensation from AA for any loss sustained as the result of the requisition or engagement.
Regulation 4.10 - Claims for compensation for requisition loss
This regulation sets out the procedures that AA must follow when processing a claim for compensation under regulation 4.09. Provision is made for merits review of compensation decisions under regulation 7.02.
Division 4.3 - Aeronautical information service
Regulation 4.11 - Function of the Aeronautical Information Service
This regulation specifies the function of the Aeronautical Information Service (AIS) provided by AA.
Regulation 4.12 - Aeronautical information publication and notices to airmen
This regulation requires AA to publish the Aeronautical Information Publication (AIP) and Notices to Airmen (NOTAMS).
Subregulations (2) and (3) specify the contents of the AIP and NOTAMS respectively.
Subregulation (4) specifies the time limits for the publication of the AIP and NOTAMS.
Subregulation (5) requires AA to forward copies of the AIP (and any amendments) and each NOTAM to the International Civil Aviation Organization.
PART 5 - ADDITIONAL FUNCTIONS OF AA
Division 1 - Preliminary
Regulation 5.01 - Purpose of Part 5
This regulation specifies the purpose of Part 5.
Division 2 - Compensation for wake vortices damage
Regulation 5.02 - Meaning of damage to property
This regulation is an interpretive provision which limits the concept of damage to property for the purposes of Division 2.
Regulation 5.03 - Application for compensation for wake vortices damage
This regulation enables the owner of property which has been damaged by wake vortices produced by a Commonwealth jurisdiction aircraft to apply to AA for compensation in respect of that damage. Wake vortices are particularly strong eddies, generated by aircraft wings as they descend to land on still days, that can cause damage to property, especially through the removal of roof tiles. The term "Commonwealth jurisdiction aircraft" is defined by reference to the Commonwealth's constitutional powers to regulate the non-safety aspects of civil aviation.
Regulation 5.04 - Investigation and consideration of applications
This regulation requires AA, upon receipt of an application for compensation, to investigate the damage and, if satisfied that the damage is compensatable damage, to pay compensation. Provision is made for merits review of compensation decisions under regulation 7.02.
Regulation 5.05 - No right to compensation conferred by this Part
This regulation provides that the Division does not confer a right on any person to receive compensation for damage caused by wake vortices.
Division 3 - Other functions
Regulation 5.06 - Provision of meteorological information
This regulation empowers AA to make arrangements with the Director of Meteorology for the provision of such meteorological information that AA considers necessary for the safe, regular or efficient operation of aircraft.
PART 6 - STATUTORY LIENS
Regulation 6.01 - Purpose of Part 6
This regulation specifies the purpose of Part 6.
Regulation 6.02 - Register entries on imposition of statutory lien
This regulation prescribes, for the purposes of subsection 58(1) of the Act, the manner in which an entry is to be made in the Register of Statutory Liens.
Regulation 6.03 - Who may request a certificate of statutory lien?
This regulation prescribes, for the purposes of subsection 60(1) of the Act, the persons who may request a certificate of statutory lien.
Regulation 6.04 - Register entry on cessation of statutory lien
This regulation prescribes, for the purposes of subsection 61(2) of the Act, the Register entry on cessation of a statutory lien.
Regulation 6.05 - Notices relating to statutory lien
This regulation prescribes, for the purposes of subsection 62(1) of the Act, the particulars which must accompany notices published in the Gazette in relation to the imposition or cessation of a statutory lien.
Regulation 6.06 - How the Register of Statutory Liens is to be maintained
This regulation prescribes, for the purposes of subsection 63(2) of he Act, the manner in which the Register of Statutory Liens is to be maintained and the time during which it is open for public inspection.
Regulation 6.07 - Who has the benefit of insurance of seized aircraft?
This regulation prescribes, for the purposes of subsection 65(2) of the Act, the persons for whose benefit an aircraft which has been seized by AA under section 64 of the Act is to be insured.
Regulation 6.08 - Sale of aircraft
This regulation prescribes, for the purposes of paragraph 66(2)(a) of the Act, the manner in which an aircraft which has been seized by AA under section 64 of the Act must be sold.
Regulation 6.09 - Proceeds of sale - Claims by creditors
This regulation specifies, for the purposes of section 67 of the Act, the manner in which creditors may make a claim in respect of a prior security interest in an aircraft. Provision is made for merits review of decisions to accept or reject claims under regulation 7.02.
Regulation 6.10 - Distribution of proceeds of sale
This regulation specifies, for the purposes of section 67 of the Act, the manner in which the proceeds of sale are to be distributed.
PART 7 - MISCELLANEOUS
Regulation 7.01 - Purpose of Part 7
This regulation specifies the purpose of Part 7.
Regulation 7.02 - Review of decisions
This regulation provides for the merits review of decisions under:
* regulation 4.10 (compensation in respect of requisition); or
* regulation 5.04 (compensation for wake vortices damage); or
* regulation 6.09 (proceeds of sale of an aircraft).
Regulation 7.03 - Evidence of flight
This regulation prescribes the types of documents which would identify a flight by an aircraft for the purpose of establishing liability to any service charge or late payment penalty, and provides that such documents are prima facie evidence of the matters therein.
Regulation 7.04 - Evidence - general
This regulation enables AA to prepare evidentiary certificates in respect of specified matters.
Regulation 7.05 - Exercise of powers etc. in relation to existing instruments
This transitional regulation enables AA to perform its functions and exercise its powers in relation to Part 2 (Airspace Management) and Part 3 (Air Traffic Services) under an instrument previously made by the CAA under the Civil Aviation Regulations as if that instrument was made under these Regulations.