Dear Sqn.Ldr XXXXX,
I refer to the Airspace Regulations 2007, the AIR SERVICES ACT 1995 - SECT 3(1) and the Australian Law Reform Commission in regard to External Territories.
- Airspace Regulations 2007
- (1) CASA may, in writing, make a declaration designating an area of Australian territory to be a prohibited area, a restricted area or a danger area.
- AIR SERVICES ACT 1995 - SECT 3(1)
- 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 air space over any such territory or sea.
- Australian Law Reform Commission 15 Jul 2010 in regard to External Territories
10.4 Several important provisions in relation to the external territories exist outside the specific federal Act governing existence of the Territory. Section 15B(2) of the Acts Interpretation Act 1901 (Cth) deems any reference in a Commonwealth Act to a ‘Territory’ to include a reference to the ‘coastal sea of the Territory’ as if that coastal sea were a part of the relevant Territory. ‘Coastal sea’ is defined in s 15B(4) to be the territorial sea adjacent to the Territory. The territorial sea is the area 12 nautical miles offshore. Consequently the laws of the Commonwealth and the jurisdiction of the courts competent to hear matters relating to those laws extend throughout the relevant external territory and up to this limit.
Due to the many islands, it is difficult to establish from the diagrams that accompany this proposal, where Australian territorial waters, 12NM limit, cease.
While it appears from your proposal that the newer areas are within the 12 NM limit, the diagrams also contain the outline of other R Areas that may not be so contained.
CASA, by the laws quoted above, cannot declare a Restricted Area over international waters, if they do so (or have done in the past) then both the Department of Infrastructure and the Department of Defence would be violating the "International rule-based order" so often quoted in regard to the South China Sea.
Kind Regards
Geoff Fairless