Explanatory Statement
Civil Aviation Safety Regulations 1998
Part 139 Manual of Standards Amendment Instrument 2025 (No. 2)
Purpose
The Part 139 Manual of Standards Amendment Instrument 2025 (No. 2) (the instrument) makes minor, miscellaneous amendments to the Part 139 (Aerodromes) Manual of Standards 2019 (the Part 139 MOS).
The main purpose of the amendments is to clarify that the aerodrome reference code (the ARC) chosen by an aerodrome operator for an aerodrome facility at the aerodrome, under section 4.01 of the Part 139 MOS, does not conclusively determine which aeroplanes may use the facility.
Legislation
Civil Aviation Act 1988
Under section 9 of the Civil Aviation Act 1988 (the Act), the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of a range of matters including, under paragraph 9(1)(c), developing and promulgating appropriate, clear and concise aviation safety standards.
Section 98 of the Act empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).
Under paragraph 98(5A)(a), the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
CASR
Under regulation 139.005 of CASR, CASA may issue a Manual of Standards for Part 139 of CASR, prescribing:
(a) matters required or permitted by the regulations to be prescribed by the Part 139 MOS; or
(b) matters necessary or convenient to be prescribed for carrying out or giving effect to Part 139 of CASR.
Subregulation 139.065(1) of CASR provides that the Part 139 MOS may prescribe requirements relating to aerodrome facilities and equipment for certified aerodromes. Under subregulation 139.065(3), the operator of a certified aerodrome must ensure that the aerodrome facilities and equipment for the aerodrome comply with the requirements mentioned in subregulation (1).
Part 139 MOS
As far as is relevant, the Part 139 MOS sets out the standards for certified aerodromes. Section 2.01 of the Part 139 MOS includes a definition of the term, upgrade, for an existing aerodrome facility (which term is defined in the section). The term is defined to mean any change to the facility that, for the first time after the commencement of the MOS, enables any of the listed changes to aircraft operations using the facility. One of the listed changes (paragraph 2.01(f)) is a change that enables the aerodrome to accommodate aircraft of a higher category specified in the ARC under section 4.01 than was the case before the change.
Subsection 4.01(1) states that the standards that an aerodrome facility must meet to be suitable for use by aeroplanes within a particular range of performance and size are determined by the ARC chosen by the aerodrome operator. Subsections 4.01(2) to (5) set out the 3 elements of the ARC. The term aerodrome facility is defined in subsection 3.01(2) of the Part 139 MOS.
Section 6.38 of the Part 139 MOS prescribes the required minimum width of any section of a taxiway at an aerodrome and how this is calculated, having regard to the aeroplanes using the taxiway. The calculation is made by reference to the outer main gear wheel span (the OMGWS) of an aeroplane using the taxiway. The OMGWS of the aeroplane is an element of the ARC, for the taxiway, chosen by the aerodrome operator.
Acts Interpretation Act 1901 (the AIA)
Under subsection 33(3) of the AIA, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Content of instrument
Section 1 of the instrument gives the instrument its name.
Section 2 of the instrument provides for the instrument to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 of the instrument effects the amendments to the Part 139 MOS set out in Schedule 1 of the instrument.
Schedule 1
Schedule 1 sets out the amendments to the Part 139 MOS.
Item 1 of Schedule 1 inserts a Note after paragraph (f) of the definition of the term, upgrade in section 2.01, referring the reader to new subsection 4.01(6), inserted by the instrument into the Part 139 MOS.
Item 2 of Schedule 1 clarifies that the ARC chosen, under section 4.01, by the aerodrome operator for an aerodrome facility at the aerodrome does not prevent the use of the facility by an aeroplane if the aeroplane’s operational requirements, stated in the aircraft flight manual instructions for the aeroplane, enable the use of the facility by the aeroplane. The term, aircraft flight manual instructions, for an aircraft, is defined in the CASR Dictionary.
Item 3 of Schedule 1 clarifies it is the design of a taxiway at an aerodrome that must meet the requirements of section 6.38. The amendment accords with the equivalent provision in Annex 14, Volume 1, Aerodrome Design and Operations, to the Chicago Convention.
Items 4 and 5 of Schedule 1 amend section 6.38 to make it clear that the reference in the section to an OMGWS is a reference to the OMGWS of an aeroplane.
Legislation Act 2003 (the LA)
Paragraph 10(1)(d) of the LA provides that an instrument is a legislative instrument if it includes a provision that amends another legislative instrument. The instrument amends the Part 139 MOS, which is a legislative instrument. Therefore, the instrument is a legislative instrument, which is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Sunsetting
Part 4 of Chapter 3 of the LA does not apply to the instrument because the instrument relates to aviation safety and is made under CASR (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
In this case, the instrument amends the Part 139 MOS and is almost immediately spent and repealed in accordance with the automatic repeal provisions in section 48A of the LA. However, the Part 139 MOS, as amended by the instrument, has enduring effect.
The Part 139 MOS deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators, both domestic and international.
Consultation
Consultation on Manual of Standards Part 139 Amendment Instrument 2014 (No. 1) (the 2014 instrument)
On 24 May 2011, CASA commenced a regulatory project to separate the regulatory management of aeroplane operations from aerodrome operations on narrow aerodrome runways. This occurred by rationalising runway width requirements by amendments to regulation 235A of the Civil Aviation Regulations 1988 and the Manual of Standards (MOS) — Part 139 Aerodromes (the repealed MOS). The policy objective of the amendments was to correct the situation under the previous legislative scheme, which had the effect of strictly limiting aeroplane operations at an aerodrome by reference to the ARC chosen by the aerodrome operator for an aerodrome facility at the aerodrome, unless an exemption was granted by CASA to a relevant aeroplane operator.
The amendments to the repealed MOS were effected by the 2014 instrument. CASA’s consultation on the amendments is detailed in the Explanatory Statement for that instrument.
Consultation on the Part 139 MOS
It was intended that the abovementioned policy be continued under the Part 139 MOS, which replaced the repealed MOS. CASA’s consultation on the Part 139 MOS, as originally made, is detailed in the Explanatory Statement for the originating instrument. Despite the policy intent, there is uncertainty in the aviation industry about the application of subsection 4.01(1). The main purpose of the instrument is to confirm, and clarify, the policy intent.
Determination
The Director of Aviation Safety (the Director) has made a determination under paragraph 11.275(1)(d) of CASR (namely, CASA 69/25 – Determination – Non‑compliance with CASR Subpart 11.J Requirements – Part 139 Manual of Standards Amendment Instrument 2025 (No. 2)), in relation to the instrument, on the basis that the amendments to the Part 139 MOS in Schedule 1 of the instrument are of a minor or machinery nature that do not substantially alter existing arrangements.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Sector risk, and economic and cost impact
Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c) of the Act, CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses, and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution, and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
CASA has assessed that there will be no change to the economic or cost impact on individuals, businesses or the community. This is confirmed by the assessment made by the Office of Best Practice Regulation (OBPR), mentioned below.
Impact on categories of operations
The instrument does not have any impact on specific categories of aircraft operations.
Impact on regional and remote communities
The instrument does not have any impact that is specific to regional and remote communities.
Office of Impact Analysis (the OIA)
At the time, OBPR assessed that the proposed amendments in the 2014 instrument would have minor impacts and that no further analysis in the form of a Regulation Impact Statement was required (OBPR ID: 13895, 17497 and 17793).
Also, an Impact Analysis (an IA) is not required because the instrument is covered by a standing agreement between CASA and OIA under which an IA is not required for minor or machinery amendments to Manuals of Standards (OIA reference number: OIA23-06250).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by the Director, on behalf of CASA, in accordance with subsection 73(2) of the Act.
The instrument commences on the day after it is registered, and will be repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Part 139 Manual of Standards Amendment Instrument 2025 (No. 2)
The legislative instrument is compatible with the human rights and freedoms recognised, or declared, in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Part 139 Manual of Standards Amendment Instrument 2025 (No. 2) (the instrument) makes minor, miscellaneous amendments to the Part 139 (Aerodromes) Manual of Standards 2019 (the Part 139 MOS).
The main purpose of the amendments is to clarify that the aerodrome reference code chosen by an aerodrome operator for an aerodrome facility at the aerodrome, under section 4.01 of the Part 139 MOS, does not conclusively determine which aeroplanes may use the facility.
Human rights implications
The instrument does not engage any of the applicable rights or freedoms.
Conclusion
The instrument is compatible with human rights, as it does not raise any human rights issues.
Civil Aviation Safety Authority