Federal Register of Legislation - Australian Government

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CASA 26/21 Directions/Civil Aviation as made
This instrument makes new rules governing the use of certain airspace in Australian-administered airspace outside Australian territory. International airspace is allocated to Australia for the purposes of airspace administration.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 29 Apr 2021
Tabling HistoryDate
Tabled HR11-May-2021
Tabled Senate11-May-2021
To be repealed 30 Nov 2022
Repealed by Self Repealing

Instrument number CASA 26/21

I, graeme mills crawford, Acting Director of Aviation Safety, on behalf of CASA, make this instrument under subregulation 11.245 (1) of the Civil Aviation Safety Regulations 1998.

[Signed G.M. Crawford]

Graeme M. Crawford
Acting Director of Aviation Safety

29 April 2021

1          Name

                 This instrument is CASA 26/21 – Direction – Australian Aircraft and Foreign Registered Aircraft in Australian-administered Airspace Instrument 2021.

2          Commencement

                 This instrument:

(a)   commences on 29 April 2021; and

(b)   is repealed at the end of 30 November 2022 (thereby ceasing to be in force on and from the beginning of 1 December 2022).

Note   This instrument may be sooner repealed following the commencement of substitute regulations currently under development.

3          Definitions

        (1)     In this instrument:

Australian-administered airspace means airspace that has been allocated to Australia by ICAO under the Chicago Convention and for which Australia has accepted responsibility.

Note   Australian-administered airspace includes the airspace over Australian territory and ICAO-allocated airspace that is outside Australian territory. In this instrument, there are references to Australian territory airspace and to “other Australian-administered airspace”.

Australian aircraft means an aircraft registered in Australia.

Australian territory means:

(a)   the territory of Australia and of every external Territory; and

(b)   the territorial sea of Australia and of every external Territory; and

(c)   the airspace over any such territory or sea.

danger area means an area that is, or that purports to be, a danger area under Schedule 2 of the Declaration Instrument.

Declaration Instrument means the bi-annual CASA instrument titled Designation of Prohibited, Restricted and Danger Areas — Declaration and Determination (Permanent PRDs) Instrument, made under regulations 6, 7 and 9 of the Airspace Regulations 2007.

foreign registered aircraft means an aircraft registered:

(a)   in a foreign country; or

(b)   under a joint registration plan or an international registration plan.

Part 141 certificate means a certificate issued under regulation 141.060 of CASR.

Part 141 operator means the holder of a Part 141 certificate.

restricted area means an area that is, or that purports to be, a restricted area under Schedule 1 of the Declaration Instrument.

Schedule 1 means Schedule 1 of the Declaration Instrument for restricted areas.

Schedule 2 means Schedule 2 of the Declaration Instrument for danger areas.

Schedule 1 OAAA area means so much of an area, described in Schedule 1, as lies outside Australian territory in other Australian-administered airspace.

Schedule 2 OAAA area means so much of an area, described in Schedule 2, as lies outside Australian territory in other Australian-administered airspace.

temporary danger area declaration instrument means a temporary CASA instrument made under regulations 6, 7 and 9 of the Airspace Regulations 2007 referring to areas expressed to be danger areas.

temporary restricted area declaration instrument means a temporary CASA instrument made under regulations 6, 7 and 9 of the Airspace Regulations 2007 referring to areas expressed to be restricted areas.

        (2)     In this instrument, other words and phrases have the same meaning as in the Civil Aviation Act 1988 or the CASR Dictionary.

        (3)     In this instrument, references to any instrument (however described) are to the instrument as in force from time to time.

4          Direction – Australian aircraft – restricted areas and danger areas

        (1)     This section applies to the operator and the pilot in command of an Australian aircraft in relation to:

(a)   a Schedule 1 OAAA area; and

(b)   a Schedule 2 OAAA area.

        (2)     The pilot in command must not fly over a Schedule 1 OAAA area except in accordance with the conditions expressed in Schedule 1 of the Declaration Instrument as if they applied for permitted flight over the area.

Note   The operator and the pilot in command must treat the Schedule 1 OAAA as if it were a restricted area subject to the conditions, as set out in Schedule 1 of the Declaration Instrument for the area. It is possible that within a Schedule 1 OAAA area, activities threatening to safe navigation may occur, for example, military training flying. Under this direction, Australian aircraft MUST NOT enter the area without the permission of the body described as the Controlling Authority for the area.

        (3)     If flying over a Schedule 2 OAAA area, the pilot in command must take such precautions, and make such contacts, as a reasonable pilot, in the same circumstances, would take and make for an area within or over which exists an activity that is a potential danger to aircraft flying over the area.

Note   An aircraft may fly within or across a Schedule 2 OAAA area. However, it is strongly recommended that before the flight, the pilot in command should be demonstrably aware of the specific activity which causes the area to be a Schedule 2 area in the Declaration Instrument; and both before and during the flight, the pilot in command should take appropriate precautions against any safety risks that could arise from the flight.

        (4)     The operator of the aircraft must ensure that subsections (2) and (3) are complied with.

5          Direction – foreign registered aircraft operated under an Australian AOC or by a Part 141 operator – restricted areas and danger areas

        (1)     This section applies to the operator and the pilot in command of a foreign registered aircraft that is operated under an Australian AOC or a Part 141 certificate, in relation to:

(a)   a Schedule 1 OAAA area; and

(b)   a Schedule 2 OAAA area.

        (2)     The pilot in command must not fly:

(a)   into Australian territory:

             (i)  from a Schedule 1 OAAA area; or

            (ii)  having, during the flight, flown in a Schedule 1 OAAA area; or

(b)   from Australian territory:

             (i)  into a Schedule 1 OAAA area; or

            (ii)  on a flight that flies into a Schedule 1 OAAA area;

                 unless the flight in the Schedule 1 OAAA area was or is conducted in accordance with the conditions expressed in Schedule 1 of the Declaration Instrument as if they applied for permitted flight over the area.

Note   The operator and the pilot in command must treat the Schedule 1 OAAA as if it were a restricted area subject to the conditions, as set out in Schedule 1 of the Declaration Instrument for the area. It is possible that within a Schedule 1 OAAA area, activities threatening to safe navigation may occur, for example, military training flying. Under this direction, a foreign registered aircraft that is operated under an Australian AOC MUST NOT enter the area without the permission of the body described as the Controlling Authority for the area.

        (3)     The pilot in command may fly:

(a)   into Australian territory:

             (i)  from a Schedule 2 OAAA area; or

            (ii)  having, during the flight, flown over a Schedule 2 OAAA area; or

(b)   from Australian territory:

             (i)  into a Schedule 2 OAAA area; or

            (ii)  on a flight that flies into a Schedule 2 OAAA area;

                 provided that the pilot in command takes such precautions, and makes such contacts, as a reasonable pilot, in the same circumstances, would take and make for an area within or over which exists an activity that is a potential danger to aircraft flying over the area.

Note   An aircraft may fly within or across a Schedule 2 OAAA area. However, it is strongly recommended that before the flight, the pilot in command should be demonstrably aware of the specific activity which causes the area to be a Schedule 2 area in the Declaration Instrument; and both before and during the flight, the pilot in command should take appropriate precautions against any safety risks that could arise from the flight.

        (4)     The operator of the aircraft must ensure that subsections (2) and (3) are complied with.

6          Direction – foreign registered aircraft – restricted areas and danger areas

        (1)     This section applies to the operator and the pilot in command of a foreign registered aircraft (other than one mentioned in section 5) in relation to:

(a)   a Schedule 1 OAAA area; and

(b)   a Schedule 2 OAAA area.

        (2)     If flying over a Schedule 1 OAAA area, the pilot in command of the aircraft must take such precautions, and make such contacts, as a reasonable pilot, in the same circumstances, would take and make for an area within or over which exist threats to the safe navigation of aircraft flying over the area.

Note   While not legislatively obliged to do so, it is strongly recommended that the operator and the pilot in command treat the Schedule 1 OAAA as if it were a restricted area subject to the conditions, as set out in Schedule 1 of the Declaration Instrument for the area. It is possible that, within a Schedule 1 OAAA area, activities threatening to safe air navigation may occur, for example, high speed military flying and live weapon firing. While aircraft may enter, out of prudence and caution they SHOULD NOT enter, the area without first contacting the Controlling Authority for the area.

In the event that an operator and a pilot in command refuse to follow this strong recommendation, they should be aware that, apart from the potential threats to safe navigation:

(a)     on entering controlled airspace from a Schedule 1 OAAA area, airways clearance may not be available due to the requirements of aircraft separation or because of the non‑availability of an ATC service; and

(b)     permission for onwards transit from the Schedule 1 OAAA area through a contiguous restricted area over Australian territory is unlikely to be granted unless under a pre-existing arrangement with the Controlling Authority for the restricted airspace. Significant re‑routing may result at the Australian territory boundary.

        (3)     If flying over a Schedule 2 OAAA area, the pilot in command must take such precautions, and make such contacts, as a reasonable pilot, in the same circumstances, would take and make for an area within or over which exists an activity that is a potential danger to aircraft flying over the area.

Note   An aircraft may fly within or across a Schedule 2 OAAA area. However, it is strongly recommended that before the flight, the pilot in command should be demonstrably aware of the specific activity which causes the area to be a Schedule 2 area under the Declaration Instrument; and both before and during the flight, the pilot in command should take appropriate precautions against any safety risks that could arise from the flight.

        (4)     The operator of the aircraft must ensure that subsections (2) and (3) are complied with.

Note   The combined effect of this direction instrument and the Declaration Instrument is that:

(a)     Australian aircraft, and foreign registered aircraft operated under an Australian AOC or a Part 141 certificate, must observe the requirements for all areas expressed to be restricted areas or danger areas in Australian-administered airspace, whether lying within Australian territory or otherwise; and

(b)     foreign registered aircraft (other than one mentioned in paragraph (a)):

                  (i)   must observe the requirements for so much of an expressed restricted area or danger area as lies within Australian territory; and

                 (ii)   are strongly recommended to observe the requirements for so much of an expressed restricted area or danger area as lies outside Australian territory in other Australian‑administered airspace.

7          Direction – Australian and foreign registered aircraft – temporary restricted areas and temporary danger areas

        (1)     This section applies to:

(a)   the operator and the pilot in command of an Australian aircraft; and

(b)   the operator and the pilot in command of a foreign registered aircraft (other than one mentioned in paragraph (c)); and

(c)   the operator and the pilot in command of a foreign registered aircraft operated under an Australian AOC or a Part 141 certificate.

        (2)     The directions in sections 4, 5 and 6 of this instrument also apply, mutatis mutandis, to the relevant operator and pilot in command for aircraft flight in relation to an area:

(a)   expressed in a temporary restricted area declaration instrument to be a temporary restricted area; or

(b)   expressed in a temporary danger area declaration instrument to be a temporary danger area;

                 as if, in this direction instrument:

(c)   references to a Schedule 1 OAAA area — were to an area described in the temporary restricted area declaration instrument as a restricted area, outside Australian territory in other Australian-administered airspace; and

(d)   references to a Schedule 2 OAAA area — were to an area described in the temporary danger area declaration instrument as a danger area, outside Australian territory in other Australian-administered airspace.