11 Nov 2021

Major certification and safety changes for aviation industry participants

By James Kendal

To remain up to date with the changes to the aviation regulatory landscape, industry participants should review the legislative changes, latest industry advice and guidance published on the CASA website.

Amendments to the aerodrome certification requirements under the Civil Aviation Safety Regulations 1998 (Cth) (CASRs), which come into force on 2 December 2021, mean that some aerodromes that are currently not required to be certified will now require certification to allow certain types of aircraft to land. Similarly, aircraft operators of certain aircraft will need to ensure they meet relevant regulatory requirements when proposing to take off and land at un-certified aerodromes.

This change follows previous amendments that came into force on 13 August 2020, which removed a number of criteria requiring that aerodromes be certified.

So, as ever in the context of aviation regulation, aerodromes and aircraft operators will need to consider both the CASRs (as amended) and the impact of the further amendments before making any decision about whether certification is required and, for aircraft operators, that they are complying with the regulations when deciding to land at certain aerodromes.

Previous changes to certification requirements for aerodromes

Aerodrome certification requirements are regulated by Part 139 of the CASRs. Part 139 was amended in 2020 by the Civil Aviation Safety Amendment (Part 139) Regulations 2019 (Cth) (Part 139 Regulations):

  • to remove the distinction between 'registered' and 'certified' aerodromes;
  • to provide that all aerodromes for which:
    • there is a terminal instrument flight procedure for the aerodrome; and
    • the procedure is not only for use in a specialised helicopter operation,
  • must be "certified" under Regulation 139.025 of the CASRs; and
  • to remove the requirement for an aerodrome that:
    • has a runway suitable for use by aircraft with a maximum passenger seating capacity of more than 30 seats or a maximum carrying capacity of more than 3,400 kilograms; and
    • is available for use in in regular public transport operations or charter operations by such aircraft,
  • to be "certified".

Aerodrome operators may still voluntarily elect to have their aerodrome 'certified', even where it does not meet the criteria for mandatory certification under Regulation 139.025.

Transitional provisions implementing the Part 139 Regulations also came into force on 16 July 2020 to ensure the continuity of aerodrome registration or certification issued prior to the amendments coming into effect.

Further aerodrome requirements coming in December 2021

The amendments in August 2020 removed the requirements for certification of aerodromes based on the seating or carrying capacity, or regular public transport or charter operations of aircraft using the aerodrome. However, new aerodrome regulatory requirements are imposed by the Civil Aviation Safety Amendment (Part 121) Regulations 2018 (Part 121 Regulations) which will come into effect on 2 December 2021. The new Part 121 will apply to the operation of a multi-engine aeroplane for an Australian air transport operation that has either:

  • a maximum operational passenger seat configuration of more than 9; or
  • a maximum take-off weight of more than 8,618 kilograms.

    Under the new Part 121, Regulation 121.205, the operator and pilot in command of an aeroplane (of the kind referred to above) must not take off or land from an aerodrome that is not suitable for the aeroplane to take of or land and that does not have either:

  • certification; or
  • an operator's exposition that includes information on the matters required by sub regulation 121.210(1).

    There are also additional requirements for aircraft:

  • with a maximum seating capacity of 20 or more; and
  • that are a turbine engine aeroplane (other than a turbine-engine propeller-driven aeroplane), and
  • that are landing on an aerodrome runway and the aerodrome is the planned destination aerodrome.

These requirements are set out in Regulation 121.205(4) and are that:

  • the runway is equipped with an approved visual approach slope indicator system in accordance with Part 139; or
  • the runway is equipped with an approved visual approach slope indicator system in accordance with Part 139 that has been inoperative for no more than 7 days before the aeroplane lands on the runway and the operator’s exposition includes procedures for conducting an approach and landing on a runway with such a system inoperative; or
  • the aeroplane is equipped or fitted with an approach slope indicator system mentioned in the operator’s exposition that is suitable for use for the runway; or
  • the operator holds an approval for the aeroplane and the runway under Regulation 121.010.

Interestingly, whereas previous certification requirements relating to seat capacity and carrying capacity have been imposed on aerodrome operators, the new Part 121 obligations (and associated penalty provisions) have been placed upon aircraft operators.

Further changes on the horizon for aviation industry participants

The amendments coming into force on 2 December 2021 also amend other parts of the CASRs, including:

  • Part 91 – in respect of general operating and flight rules for all aviation in Australia;
  • Part 119 – in respect of certification and management requirements for Air Operator's Certificate holders; and
  • Part 121 – in respect of larger aeroplane air transport – including the requirements discussed above.

These amendments are intended to reduce the complexity of operating under the Civil Aviation Regulations 1988 (Cth) and the CASRs, by centralising safety requirements and instructions. As such, the amendments retain many of the existing rules but may result in the replacement of pre-existing documents, orders, exemptions and approvals. More complex provisions under the December 2021 regulations will likely be delayed and scheduled for commencement in 2022.

What next for aviation industry participants?

To remain up to date with the changes to the aviation regulatory landscape, industry participants should:

  • review the legislative changes, latest industry advice and guidance published on the CASA website;
  • consider whether your aviation operations and / or facilities comply with the new obligations under the amended CASRs, including the amendments commencing in December 2021 and in 2022; and
  • review and update aviation procedures, facilities and manuals to ensure compliance.

If you would like to discuss the impact these changes will have on your business, or how you can transition efficiently and quickly to the new regime, please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.