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1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by authority of
the Minister for Transport and
Regional Services, the
Hon. John Anderson MP)
ISBN: 0642 389403
This Bill proposes to make several amendments to the
Airports Act 1996. These amendments have 3 purposes:
• to extend the time available to some airport lessees
to have access undertakings to airport services approved by the Australian
Competition and Consumer Commission (ACCC);
• to
capture activities of a non-structural nature that intrude into protected
airspace and may impair the ability to pilot an aircraft;
and
• to make minor technical changes to the
Airports Act 1996 to overcome some practical difficulties associated with day to
day administration of airport leases.
Further
detail on the proposed amendments can be found in the notes on
clauses.
The Airports Amendment Bill 1999 will have no impact on the Budget.
The principal problems with the Airports Act 1996
that are proposed to be addressed by this Bill are
twofold:
• insufficient time available to
negotiate undertakings with the Australian Consumer and Competition Commission
(ACCC) regarding access to services offered for use at airports;
and
• some activities have the potential to cause
intrusions into protected airspace, thus posing a threat to the safety,
efficiency or regularity of aviation
operations.
These problems are addressed separately
below.
1. Insufficient time available to
negotiate access
Under the current arrangements
under the Airports Act 1996, airport lessees have 12 months to get access
undertakings to airport services approved by the ACCC. The ACCC has advised
that this process normally takes at least 4
months.
At the end of the 12-month period, if
approval has not been granted, services are formally “declared”
under the Airports Act 1996 to be subject to Part IIIA of the Trade
Practices Act 1974. When an airport lessee has been “declared”
and a service user is unable to agree with the airport lessee on access to the
service, the ACCC must be notified that an “access dispute” exists.
The ACCC arbitrates the dispute in accordance with matters specified under Part
IIIA and makes a determination in regard to it. The kinds of determinations
that can be made are also restricted by Part IIIA.
The approval of an access undertaking with the
ACCC enables airport lessees to provide services and resolve disputes on terms
that are acceptable to service users, the ACCC and the service provider. No
such flexibility exists if the service provider is “declared”.
The 12-month time-period was originally imposed to
assist a speedy development of access arrangements, so that those seeking access
to leased airport services would have a convenient and tailored process by which
to do so.
Phase 1 sales commenced on 1 July 1997,
when leases were signed for Brisbane, Melbourne and Perth Airports. The Phase 1
lessees, Brisbane Airport Corporation Limited, Australian Pacific Airports
(Melbourne) Pty Ltd and Westralia Airports Corporation Limited attempted to
negotiate access arrangements, however they found that there was insufficient
time to complete negotiations by the 12 month
cut-off.
The 12 month period was not long enough
because of a combination of factors, including the significant workload on the
airport lessees to meet the requirements of the Airports Act 1996 to both
produce Master Plans and Environmental Strategies and negotiate with the ACCC
within the designated period. Phase 1 lessees were unable to satisfy the ACCC
within the designated period that they had adequately addressed all the issues
required in an access undertaking. Phase 1 lessees advise that they believe
they would have had their draft undertakings approved if they had more time.
The Phase 2 sales commenced on 28 May 1998. The
access arrangements for such sales are likely to be as complicated as they were
for Phase 1 sales.
2. Some activities are
causing intrusions into protected airspace that pose a threat to the safety,
efficiency or regularity of aviation operations
Currently, Part 12 of the Airports Act 1996
and the Airports (Protection of Airspace) Regulations (the Regulations),
address activities (such as constructing or altering buildings, poles, towers
etc) that intrude into prescribed airspace which must not be carried out without
an approval from the Secretary of the Department of Transport and Regional
Services. This is because the building of such structures and the occurrence of
temporary structures (such as cranes) pose a threat to the safety, efficiency or
regularity of aviation operations around the airport. Currently, fines of up to
$27,500 (250 penalty units) are imposed on those who build structures in such
airspace without the relevant authority. To obtain such authority, an applicant
must satisfy the requirements of the Regulations, by applying, through the
airport lessee of the airport which is affected by the proposed activity, to the
Department of Transport and Regional Services, which liaises with various air
safety authorities. The process normally takes no more than 35 days.
However, the current arrangements do not address
activities of a non-structural nature, which may intrude into prescribed
airspace causing interference to aviation. Examples of such activities include
industrial plants discharging efflux, which may endanger or restrict aviation
operations within the protected airspace due to the resulting air turbulence or
reduced visibility. In addition, any direct lighting (such as sport stadium
lights or laser beams) or reflected lighting (such as that created by solar
farms) can also affect the safety, efficiency or regularity of aircraft
operations by causing glare or confusion for aircraft.
The objectives of the current proposal are to:
• expedite fair and efficient access arrangements for users of airport facilities and services;
• extend the definition of “controlled
activity” to ensure adequate protection of airspace.
The options available to address to problems
are:
(a) Access
1. to
do nothing — the status quo;
2. provide more time to negotiate access undertaking
with the ACCC — for example 6 months, 12 months, 18 months;
(b) Airspace
1. to
require activities that may cause non structural interference to aircraft to be
authorised by the Department of Transport and Regional Services;
2. to ban all activities resulting in non-structural
intrusions into prescribed airspace;
and
3. no change.
The principal parties affected by the proposed amendments
are:
• airport lessees and the users of the
services provided by them at airports;
• persons
whose activities intrude into protected airspace, the pilots, crews and
passengers of aircraft and persons who occupy land within protected
airspace.
(a) Access
1. Option 1 - to do
nothing
If the Commonwealth does not make these
amendments:
• airport lessees and users of
services at airports will have to use a more expensive, less flexible and
time-consuming process to resolve disputes over the fair and efficient provision
of airport services.
• it is unlikely that access undertakings would be
agreed within the current specified
period.
2. Option 2 - to provide more time for
airport lessees to negotiate access undertaking with the
ACCC
Most airport lessees have indicated that
an extra 12 months would be ideal in order to allow them to agree their access
undertakings with the ACCC. This time-period was preferred to a lesser
time-period, given the burden of complying with the requirements of the Airports
Act to provide the Master Plans and Environmental Strategies referred to above.
The 12-month extension is superior to a further extension (such as 18 months)
because it still facilitates a relatively quick resolution of access
arrangements so that those seeking access will have a process to do so within a
reasonable amount of time. In practice, the current time-period has proved
unworkable.
However, under this option, those
seeking access may have to wait another 12 months before having a process by
which to do so. This may impose costs upon those businesses, as they may not be
able to compete effectively without such access. Of course, those seeking
access may use the provisions set out in Part IIIA of the Trade Practices Act
1974 at any time they choose. The ACCC has advised that the time and costs
involved in doing so are likely to be far greater than the time and costs
incurred in waiting for an access undertaking to be approved by the
ACCC.
(b) Airspace
1. Option
1 - to require activities that cause non-structural interference into prescribed
airspace to be authorised
Under this option,
those activities that could cause non-structural intrusion into prescribed
airspace would require departmental authority to
proceed.
This option may result in the proponents
of some controlled activities being required to either amend their design
specifications for a proposed plant or facility; or to vary the time when the
activity is carried out, so as not to affect aviation operations at the airport.
For example, the proponent of an power co-generation plant whose discharge would
result in air turbulence dangerous to aircraft, might be required to reduce the
exit velocity of the discharge; or alternatively might be required to organise
activities so that any dangerous discharges were emitted outside the normal
times of aviation operations.
While such
requirements could have some impact on the costs of the power co-generation
plant, state government planning requirements and the environment impact
assessment processes already require such development proposals to address
regulatory and community concerns (including aviation interests) during the
feasibility stage of such proposals. This option reinforces and clarifies
aviation requirements as part of such
processes.
This option provides the best
opportunity to preserve the safety, efficiency and regularity of existing and
future aviation operations.
2. Option 2 - to ban
all activities that could cause non-structural intrusion into prescribed
airspace
Under this option no activities could
be authorised that could allow non-structural intrusion into prescribed
airspace. This would be draconian in its impact on proposals for future
industrial development in the vicinity of airports. While this option would
provide a higher level of airspace protection, it would be delivered at a
prohibitive cost to those conducting activities around prescribed
airspace.
3. Option 3 - No
change
Allowing proponents to undertake
activities resulting in non-structural intrusions into protected airspace would
result in a considerable cost to the safety, efficiency and regularity of
aviation operations. Such intrusions would result in CASA declaring danger
zones around those sections of airspace, thereby rendering that section of the
airspace unavailable to aviation operations. As the number of such controlled
activities increased, more of the airspace would become unavailable to aviation
operations and the economic viability of the airport would be
threatened.
Regarding the timing for access negotiations, the ACCC and
the Department held a workshop with the airport lessees on 7 August 1998. In
light of the experience of the Phase 1 lessees, it was clear that 12 months was
not sufficient to both comply with the planning requirements of the Airports
Act 1996, and negotiate access arrangements with the ACCC.
Following the workshop, the Department consulted
with Phase 2 airport lessees and the ACCC to determine whether an additional 12
months would be sufficient time to achieve this. The Department received
unanimous support for the proposal.
Regarding the
non-structural intrusions into protected airspace, the Department has consulted
with Federal airports on the proposed amendments and there is widespread support
amongst them for the amendments. The Civil Aviation Safety Authority and
Airservices Australia also support the proposed amendments.
The same problems experienced by Phase 1 lessees, relating
to the creation and approval of access undertakings, now face the Phase 2
lessees. If the proposed change is not made before 28 May 1999 it is unlikely,
for similar reasons, that any of the Phase 2 lessees will have access
undertakings approved by the ACCC.
The preferred
option is to make the proposed amendment to allow 24 months to negotiate access
undertaking with the ACCC. The amendment should be made before 28 May 1999 as
the first Phase 2 airport lease was entered into on 28 May
1998.
The issue of protecting prescribed airspace
from activities of a non-structural nature is a long-standing one. All parties
agree that amendments to the Act are appropriate. This proposal addresses the
problem of non-structural activities impeding aviation, and allows sufficient
safety for aviation activities.
Section 192 of the Airports Act 1996 provides a one-off
opportunity for airport lessees and the users of the services they offer to have
access to an efficient and less costly system for the resolution of
disagreements over the fair and competitive provision of those services. If an
access undertaking is not agreed, the more complicated process set out in Part
IIIA of the Trade Practices Act 1974 automatically applies. The opportunity for
Phase 1 airport lessees to use this provision has passed. Without an extension
of time Phase 2 lessees will also miss the opportunity.
The proposal to amend the Airports Act 1996
to deal with activities of a non-structural nature that intrude into protected
airspace will enable to Commonwealth to monitor and regularly review activities
and technologies that have the capacity to pose a significant risk to the safety
of air travel in Australia.
The Bill, when enacted, will be known as the Airports Amendment Act 1999.
The Act will commence on the day it receives Royal Assent.
This clause provides that the Acts specified in the
Schedule(s) to the Bill are amended as set out in the
Schedule(s).
SCHEDULE 1 – AMENDMENT OF THE
AIRPORTS ACT 1996
Schedule 1 of the Bill provides for amendments of the Airports Act 1996 (the Act).
This item amends the simplified outline to the Act in section 4. It is consequential to the amendments in items 17 and 18 below.
Item 1 of the amendments to the Airports Act 1996 repeals the
definition of “airport lease” in section 5 of the Act and
substitutes a new definition.
The new definition of
‘airport lease’ in section 5 overcomes the practical difficulties
with variations to the boundaries of leased airports through acquisitions and
disposal of land, by removing the requirement that the site which is the subject
of the lease must include a runway.
The new
definition of airport lease also removes the distinction between airport leases
for joint-user airports and other airports. In practice, however, the only area
leased and subject to the Act at joint-user airports will remain the civil part
of the airport. The runways and defence part of the airport will remain under
the control and jurisdiction of the Department of Defence.
Item 3 omits from the current definition of interest the words
“does not include a sublease” and inserts new words that clarify the
meaning of an “interest” in land.
Section 23 of the Act only allows certain
companies to acquire airport leases or interests in airport leases. The
intention behind that section was to ensure that the ownership of the lease and
responsibility for the management and development of the airport, could not be
assigned to a party that was not subject to the ownership controls in the Act.
There are a number of interests in land which do not involve
the exclusive use or possession of it and it was never intended that the
Commonwealth would maintain detailed control over those types of property
transactions at leased airports. However, concerns have been expressed in some
quarters that the existing provision could be interpreted to include all
interests in land.
In order to put the matter
beyond doubt, the amendment excludes subleases, licenses, restrictive covenants,
easements and other incorporeal hereditaments from the
definition.
Subleases and licenses are regulated
under sections 34 to 35D of the Act and under the Airports Regulations. The
Commonwealth manages other interests in airport leases through its
administration of those leases.
These items make minor technical amendments to a number of “scoping” sections (ss 68, 114, 131A, 140, 151, 169 and 194) in the Act that apply various Parts or Divisions of the Act to airports that meet their conditions. The amendments will clarify that those Parts and Divisions of the Act apply within the boundaries of the airport site for that airport. The individual airport site descriptions are set out in the Airports Regulations.
This item amends the simplified outline to Part 9 of the Act and is consequential to the amendment in item 12 below.
These items are consequential to the amendment in item 2 above.
Item 12 inserts a new section s163A, dealing with reducing
leased areas, into the Act.
Section 163 provides
that an airport lessee company may surrender an airport lease to Commonwealth
either conditionally or unconditionally. However, situations in which only part
of the land that is the subject of an airport lease needs to be surrendered, are
not specifically dealt with.
Airport lessees are
already requesting amendments to airport sites to enable minor land acquisitions
and disposals at airport boundaries. While the current provisions of the Act
probably do not prevent partial surrender of airport lessees, the new section
163A will provide greater certainty by making it clear that airport lessees may
seek to vary airport boundaries without surrendering the whole lease.
Part 12 of the Act establishes a regime whereby
“controlled activities” that affect “prescribed
airspace” around airports require permission from the Department of
Transport and Regional Services under the Airports (Protection of Airspace)
Regulations. The regime is designed to ensure that developments around airports
are consistent with current and future air transport operations.
Item 14 expands the definition of
“controlled activity” in section 182 to include activities of a
non-structural nature which cause an intrusion into prescribed airspace through
either the intensity of glare from sources of artificial or reflected light, air
turbulence or reduced visibility from discharges into the
atmosphere.
Examples of such activities include
industrial plants discharging efflux, which may endanger or restrict aviation
operations within the protected airspace due to the resulting air turbulence or
reduced visibility - see new paragraphs (f), (g) and (h). Other examples
include:
• any direct lighting (such as sport
stadium lights or laser beams – see new paragraph (d)); or
• reflected lighting (such as that created by
solar power farms – see new paragraph (e)),
which affect the safety, efficiency or regularity of
aircraft operations by causing glare or impeding the clear perception of
aeronautical navigation lights on the ground.
This clause also enables the Commonwealth to make regulations specifying standards associated with such activities. The Commonwealth will be developing these standards after consulting CASA and other interested parties. Until the Commonwealth makes regulations specifying these standards, the activities listed in the new paragraphs (d) to (h) will not be controlled under the Part 12 regime.
Item 15 ensures that regulations for the new controlled
activities may only be made if they are pursuant to the objectives of airspace
protection, ie to protect airspace in the interests of safety, efficiency or
regularity of existing or future air transport
operations.
It also clarifies that the new
controlled activities do not extend
to:
• ordinary domestic or household activities,
which have virtually no impact on the safety, efficiency or regularity of air
transport around airports, nor
• activities
arising out of the operation of aircraft, which are regulated under other
Commonwealth legislation.
Item 16 is consequential to the amendment of section
182.
No amendment has been made to section 187 as a
result of the amendment in item 14. If required, the Minister will be able to
apply for an injunction under Part 15 of the Act to prevent any of the new
controlled activities from proceeding.
This amendment to the simplified outline of Part 13 in section 191 is consequential to the amendment of subsection 192(5) set out in Item 18.
Item 18 extends the period in which airport lessees can have
access undertakings approved by the Australian Consumer and Competition
Commission from 12 months from the date on which they acquire an airport lease
to 24 months from that date.
Section 192 of the Act
puts in place provisions that result in automatic ‘declaration’ of
‘airport services’ under Part IIIA of the Trade Practices Act
1974 12 months after airports are leased to private sector companies, unless
the airport lessee has an access undertaking approved by the ACCC.
Melbourne, Brisbane and Perth airports (Phase 1
lessees) did not have access undertakings approved by the ACCC within the
designated period. As a result, services for these airports were effectively
‘declared’ by way of Ministerial determination on 23 July 1998.
The Government and the ACCC consider that it is
appropriate to give the remaining core-regulated airports lessees a longer
period of time in which to develop and finalise their access
undertakings.
Item 19 makes it clear that the amendments to section 192
apply only to those
remaining core-regulated airport
lessees that participated in Phase 2 of the airport leasing process.