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R Areas - Shoalwater Bay

Old 12th Nov 2022, 06:31
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R Areas - Shoalwater Bay

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

Last edited by Geoff Fairless; 12th Nov 2022 at 06:34. Reason: Formatting
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Old 12th Nov 2022, 08:07
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The maritime jurisdiction maps published by Geoscience Australia may help, Geoff. This is the relevant one (warning: big fat file): https://d28rz98at9flks.cloudfront.ne.../AMJ_69717.pdf

Let me know if you can’t open it.

Key points:

The territorial sea extends 12nm from the territorial sea baseline, which is generally a line along the low water mark at the lowest tide of the year but there are ‘closing lines’ across bays and inlets. The baseline is the black line on the map.

The territorial sea is the greyish fat texta line next to the black line.

But fun key point for Queensland: Queensland includes all islands within 60 miles (I assume nautical but I’ve never tied off that loose end) from the mainland. Each of those islands has its own baseline and ‘generates’ a 12nm territorial sea. You can also see some (most) of those in the map. Note, therefore, that there are gaps between some of the territorial seas generated by those islands and the territorial sea generated by the ‘mainland’, because some of the baselines of those islands are more than 24nms from another baseline.

A common mistake is to assume that Australia’s EEZ is its territory. As you know, it isn’t. Australia has some sovereign rights over the EEZ, but does not have sovereignty.
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Old 12th Nov 2022, 10:12
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Something relating to this has been in train since ICAO issued CASA with a non-compliance relating to declarations pertaining to Australian administered airspace that fell beyond Australian territory back in 2019. History here and temporary measure here. It is meant to be resolved this month.
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Old 12th Nov 2022, 11:54
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Thanks LB, I have read the Geoscience stuff, and you are correct, everyone quotes the EEZ these days without knowing what it is!
Also correct MickG0105; regrettably CASA OAR thought they had for ever to address the issue. (That seems to be the nature of ICAO audits, I am also a Lead Auditor for the ICAO Universal Safety Oversight Audit Programme). I don't believe they took it seriously until I wrote through Avsef about Talisman Sabre 2021. You know you have got through when CASA phones and asks, "we want to know what you are up to?"
I would be interested in your opinions about the new AIC, I personally do not believe it addresses the problem safely, but I hope there is more going on behind the scenes.

For information I have already received a reply from the ADF:Good evening Mr Fairless,

Thank you for concern. I think you might find the following CASA Policy Proposal of interest:

https://consultation.casa.gov.au/reg...P%202108AS.pdf

Defence are working alongside CASA in an endeavour to resolve this longstanding issue.

In terms of the current proposal to expand SWBTA, I can assure you that all new restricted area volumes will be compliant with both domestic law and international conventions.

Kind regards,

Daniel Olsen
Squadron Leader

SO2 Airspace Operations, Joint Airspace Control Cell
Air and Space Operations Centre




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Old 12th Nov 2022, 23:14
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What a joke. A “Policy Proposal”.

Purported declarations by Australia of Romeos beyond Australian territory are unlawful even as a matter of Australia’s own domestic law. Full stop.

I’m no longer surprised at how many public officials have difficulty in comprehending that compliance with the law is not supposed to be optional. The concept of a “Policy Proposal” and consultation to deal with unlawful declarations is the product of a busted bureaucracy.

This is how Robodebt happened. Implement the “policy proposal” and the law be damned.
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Old 13th Nov 2022, 00:15
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Not sure I follow LB. They are proposing to change Restricted areas to Military Exercise/Training Areas. Doesn't that address the ICAO compliance problem?
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Old 13th Nov 2022, 06:35
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Geoff, based on your previous thread creations, anybody would think you have a vendetta against our military and national interests. It shouldn't require much explanation, however clearly you need it. Airspace must be designated as PRDs at times, often for our military largely to ensure it remains effective and capable, but equally to ensure the safety of uninvolved aircraft. They almost always deactivated when not in use.

What happened in the SCS is very different, China built up submerged ground so that it ended up above sea level, and then tried to claim it as legitimate territory that should be afforded 12nm sovereign buffers, impacting freedom of navigation. This is clearly in contravention of international law. Are you proposing other airspace Australia control's (e.g. FIRs) outside 12nm's is 'illegitimate', or just restricted area's? They are no different in concept - just application. Every other nation in the world imposes rightfully their authority to control aircrafts movements in their airspace through active management (e.g. ATC flow management) or latent airspace procedures such as restricted areas. Your issue with these PRDs comes across as seated in a disdain for the purpose of them, not their legitimacy.
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Old 13th Nov 2022, 09:24
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In my view the point is this:
  • The relevant text from the Policy Statement (not widely distributed) is in the first paragraph:
Australia has a long-standing practice of declaring predominantly military restricted areas outside Australian territory in Australian-administered airspace. This is unacceptable to ICAO and unlawful under international law, with 93 permanent restricted areas declared in this manner. Restricting aircraft outside Australian territory contravenes The United Nations Convention on the Law of the Sea (1962) (UNCLOS) which confirms the concept of freedom of navigation and unrestricted overflight of ‘high seas’ (those areas which are not part of the territorial waters or internal waters of a State). These concepts are also found in Articles 1 and 2 of the Chicago Convention on International Civil Aviation (1944) (the Chicago Convention) which refers to the UNCLOS (1962) for its definition of high seas.
  • The AIC H29/22 (very widely distributed) however then tells fibs by saying:
The Chicago Convention does not permit any member State (such as Australia) to enforce flight restrictions on foreign registered aircraft in such international airspace

The AIC statement is untrue because, the Convention as quoted in the Policy Statement, does not allow the establishment of R Areas at all!

The only conclusion that can be drawn is that Australia, by declaring restrictions on airspace outside of territorial waters, is in defiance of International law.
So much for the rule of law so often quoted by our politicians.
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Old 13th Nov 2022, 09:27
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What’s so difficult about understanding the concept of “outside” Australian territory, Chronic snoozer? Australia has power over Australians and Australian aircraft outside Australian territory, but there’s a word for purporting to push anyone else around outside one’s own territory while they’re minding their own business.

As Geoff has alluded to, a number of countries including Australia are in the habit of flying through airspace a long way away from Australia to remind a foreign country - who has been named by Geoff - of the freedom of air navigation of even military aircraft.

And CASA’s (OAR’s) airspace powers are expressly confined to airspace declarations within Australian territory (probably for the very reasons articulated by Geoff and me). So who’s going to implement the ‘Policy Proposal’ and what powers will they be exercising?

(PS: Post after Geoff’s, which is self-explanatory.)

Last edited by Lead Balloon; 13th Nov 2022 at 09:38.
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Old 13th Nov 2022, 09:53
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I wasn’t referring to that LB, perhaps I’m missing the point of the argument. Isn’t the policy, although not explicit in its text, proposing that existing R areas outside Australian territory be designated under D areas as a new subset MEA and MTA? Wouldn’t that address the issue?
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Old 13th Nov 2022, 10:08
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CASA’s (OAR’s) power to declare ‘D’ areas is also confined to declarations of areas within Australian territory. So, no matter what ‘subsets’ are dreamed up by the brains trust, how does CASA declare a D area that purports to extend beyond Australian territory?
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Old 13th Nov 2022, 10:35
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Originally Posted by spoony View Post
Geoff, based on your previous thread creations, anybody would think you have a vendetta against our military and national interests. It shouldn't require much explanation, however clearly you need it. Airspace must be designated as PRDs at times, often for our military largely to ensure it remains effective and capable, but equally to ensure the safety of uninvolved aircraft. They almost always deactivated when not in use.

What happened in the SCS is very different, China built up submerged ground so that it ended up above sea level, and then tried to claim it as legitimate territory that should be afforded 12nm sovereign buffers, impacting freedom of navigation. This is clearly in contravention of international law. Are you proposing other airspace Australia control's (e.g. FIRs) outside 12nm's is 'illegitimate', or just restricted area's? They are no different in concept - just application. Every other nation in the world imposes rightfully their authority to control aircrafts movements in their airspace through active management (e.g. ATC flow management) or latent airspace procedures such as restricted areas. Your issue with these PRDs comes across as seated in a disdain for the purpose of them, not their legitimacy.
What nations in the world assert authority to “control” foreign aircraft movements outside the nation’s territory? Please name them.

We get it that erecting artificial islands and purporting to establish a territorial sea around them is not kosher in international law. But that doesn’t mean Australia gets to purport to declare airspace outside its own territory. The regulation of aviation movements outside territorial boundaries relies on the rules imposed by each nation on aircraft with the nationality of that nation.

It has nothing to do with disdain for the ADF or a lack of understanding as to its training needs. It’s about Australia’s own compliance with international laws which, if breached by another country, occasionally leads to the engagement of the ADF in unpleasantness.

(And, for the love of whatever deity you worship, please learn how to use apostrophes.).
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Old 13th Nov 2022, 10:49
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Originally Posted by Lead Balloon View Post
CASA’s (OAR’s) power to declare ‘D’ areas is also confined to declarations of areas within Australian territory. So, no matter what ‘subsets’ are dreamed up by the brains trust, how does CASA declare a D area that purports to extend beyond Australian territory?
I can only quote from the document “The declaration of danger areas in Australian-administered airspace is acceptable to ICAO and lawful under international law, with 16 permanent danger areas declared in this manner. However, the Regulations only allow declaration of danger areas over Australian territory, unnecessarily limiting options to address airspace risk and making the current danger area declarations unlawful under domestic law.”

So they are acting to remedy this anomaly. I’m still not following your point. Perhaps you could dispense with the condescending tone, it does not enhance your posts.
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Old 13th Nov 2022, 11:14
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The point is blatantly obvious, except to someone who’s been drinking bureaucrat KoolAide.

Something unlawful isn’t an ‘anomaly’. It’s unlawful. And you don’t spend months on a ‘policy proposal’ to deal with something unlawful. You JUST STOP F*CKING DOING IT BY FIXING IT, NOW.
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Old 13th Nov 2022, 11:48
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Thanks for caps. Helpful. So your issue is that it isn’t moving quickly enough. Roger.
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Old 14th Nov 2022, 04:14
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[QUOTE=spoony;11330040]Geoff, based on your previous thread creations, anybody would think you have a vendetta against our military and national interests. It shouldn't require much explanation, however clearly you need it. Airspace must be designated as PRDs at times, often for our military largely to ensure it remains effective and capable, but equally to ensure the safety of uninvolved aircraft. They almost always deactivated when not in use.

Hi Spoony,
Welcome to the world of PPRuNe, a forum where ideas can be circulated and commented on. Regrettably you have jumped into the first trap and attacked the writer instead of the idea; ad hominin, I think the lawyers call it.

No, my vendetta is not against "our military and national interests", in this case it is against governments using illegal means to achieve their aims, while crowing about the rule of law.

You use that very contentious word "clearly" in your post, yet you then go on to claim that without PRDs our military would not be capable or effective, and then assume that without PRDs uninvolved aircraft would be unsafe. Have you not heard of radar surveillance and air traffic control? To mention only two nations, do you know that most US military airfields are assigned only a 5NM Class D area surrounded by Class E, or that most UK military airfields do not even get Class D or E protection, but have to get by with what is called a Military Air Traffic Zone (MATZ) surrounded by Class G airspace? "Clearly" their militaries are neither capable or effective!

To be clear, I have no issues with Prohibited or Danger Areas, it is the prolific use of Restricted Areas in Australia that I find an unnecessary restriction on our citizenry. Therefore, whenever I can, I take the opportunity to remind the "powers that be" of their responsibilities under the law and ask, otherwise, for them to justify R Areas. CASA has reneged on it's airspace responsibilities by setting up the AVSEF system, whereby all corresondence about airspace changes is directed to the proposer. Hence my challenges end up on the desk of some poor Squadron Leader who in the end will only be able to tell me that CASA will eventually decide. As far as I can see that decision will only be communicated to the proposer, the rest of us find out when the chart is published or the NOTAM is issued. A fine system, indeed!
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Old 14th Nov 2022, 11:18
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"Have you not heard of radar surveillance and air traffic control?"

Geoff, obviously...
Have you perhaps considered that this control is ineffective against fast moving powerful aircraft that are a little more dynamic than your avg civil aircraft. Separating a package of fastjets in the middle of an exercise against a slow moving interloper, is a laughable suggestion. These are not benign constant altitude/spd separation conditions. Were you not a controller ?

Further, not all threats mentioned are related to keeping aircraft from swapping paint. Think weapons, [email protected], jamming, high energy emitters. The bottom line is Restricted areas are essential, and for good reason are often out away from populated areas which don't permit uninvolved aircraft.

You can exercise freedom of navigation - what do you think the bear bombers in the cold war did... exercised this right, didn't stop them from being intercepted by F-4s every day off the coast.
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Old 15th Nov 2022, 00:48
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Originally Posted by Chronic Snoozer View Post
Thanks for caps. Helpful. So your issue is that it isn’t moving quickly enough. Roger.
You may have sensed some frustration in the tone and format of the post to which you responded. But I am, frankly, sick and tired of the indolence and casual corruption of government bureaucracies. (Watching the Robodebt Royal Commission hearings for the last fortnight has probably made me just a little more nauseous than usual.) For some reason aviation cops more than its fair share (all dressed up in the rhetoric of ‘safety’ and – in the case of airspace locked up for the ADF – ‘security’ and ‘public interest’ of course).

It would probably surprise CASA OAR and the ADF to learn that the existence of aircraft with “weapons, [email protected], jamming, high energy emitters” in airspace does not, of itself, actually satisfy the criterion for declaring that airspace a Romeo. All you have to do is read the legislation conferring the power to declare Romeos to know that. But hey – who cares what the law says? And even if I’m wrong on that point, Romeos are supposed to be usable on the conditions which must accompany the declaration of the Romeo. Again, you just need to read the legislation to know that but, again, who cares what the law says?

When spoony says: “The bottom line is Restricted areas are essential, and for good reason are often out away from populated areas which don't permit uninvolved aircraft.”, s/he’s just expressing an opinion based on delusions of dangerous grandeur rather than by the objective evidence of risk. As Geoff has pointed out, our allies like the UK and the USA manage to train and sustain formidable airborne defence capabilities without the equivalent volumes of Restricted airspace.

In another thread I posted an ex-RAAF mate of mine’s answer to a question I asked him recently about the airspace arrangements around the pommie equivalent of a Willytown and Amberley. My mate’s been flying in pommieland for decades. This is part of his response:
In UK there’s a concept called MATZ (MIL Air Traffic Zone). Technically they’re optional for us to avoid, but we “should” seek permission to enter. They’re treated as class G otherwise. This is the main form of protection for fighter bases in our busy airspace like at Coningsby. Some RAF stations have Class D around them, notably Brize Norton. That you can’t ignore but I’ve never had a problem asking for a crossing.

Also in UK we have no designated Low Flying lanes for the fast jets: they can (and do) this any/everywhere. We all just have to see and avoid!
Think about that, spoony: Even the airspace around the RAF bases themselves is not a Romeo or Class C, much less great swathes of airspace in which the aircraft based there train. How is it that the RAF isn’t "swapping paint" with civil “interlopers” and bringing down Jumbo jets with [email protected] and high energy emitters? Isn’t Restricted airspace “essential” to avoid that?

My mate also gave an example of the kinds of circumstances that would satisfy the criterion for the declaration of a Romeo in Australia:
Note the nearby red areas [in the chart my mate sent me]: that’s army space over Salisbury Plain and that’s more serious: we almost never cross there as they grunts are shooting at each other in there with tanks etc (currently a lot of Ukrainian units in there being trained on SL ordnance).
You see: the actual criterion for the declaration of a Romeo turns on risks created by what’s happening under the airspace that creates risks in the airspace.

But what do we have in Australia? Delusions of dangerous grandeur resulting in the normalised deviation of locking up vast volumes of airspace so that aircraft whose numbers can usually be counted on the fingers of one hand – and sometimes on one finger of one finger – can operate without the prospect of being disturbed by and having to respond to irritating “interlopers”. (That word “interlopers” manifests an attitude that’s so typical in Australia. In the USA it’s actually the military aircraft that are interlopers in the citizens’ airspace.) If Romeos were declared in accordance with the law, the “interloper” would not be a surprise because their use of the airspace would be in accordance with the published conditions and the military operations would be adjusted accordingly. But we can’t have that. Romeos that are unusable on any conditions when active are “essential” from the perspective of folks like spoony whose opinions will no doubt weigh heavily in the solemn deliberations of CASA OAR in the consultation process, in which process the law is unlikely to intrude.
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Old 15th Nov 2022, 02:02
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Thanks for the support LB, I think you have said it all.
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Old 16th Nov 2022, 02:20
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Just a small point: the "Department of Defence" referred to in this thread is in fact "Defence Australia."

I'm not sure the Squadron Leader would appreciate his name and even his email being reprinted here. Often there's a caveat at the bottom of such emails referring to sharing of the information. Posting that detail is a sloppy misjudgement.

While at it I have no issue with Australia managing the airspace in that area for our national needs. This is low-grade muck-raking and, if you really feel you need to engage in it, is better discussed in-house in some green leftist anti-establishment shame group not shared here in an attempt to sling mud. There are many real shortcomings of the government much more worthy of being made public than this non-event. Thank you.

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