Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1997
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
AVIATION LEGISLATION AMENDMENT BILL (NO. 1) 1997
EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister
for Transport and Regional
Development, the Hon John
Sharp MP)
80624 Cat. No. 96 5915 3 ISBN 0644 496975
Aviation Legislation Amendment Bill (No. 1) 1997
The Aviation Legislation Amendment Bill (No. 1) 1997 (‘the Bill’) amends the Air Navigation Act 1920, the Airports Act 1996 and the Airports (Transitional) Act 1996.
The primary amendments to the Air Navigation Act 1920 relate to the approval of international charter flights. These amendments will provide increased flexibility to deal with the increased range of programmes of international non-scheduled flights for which approval is sought.
The amendments will also merge the approval processes for non-scheduled applications from both Australian and foreign charter operators and remove the existing distinction drawn in the Act between aircraft from contracting and non-contracting States to the Convention on Civil Aviation signed at Chicago, 1944 (‘the Chicago Convention’).
Further, they will strengthen consumer protection mechanisms in relation to charter operations by providing for operators to indemnify fare paying passengers for any financial loss caused by the failure of the charter operator to fulfil its obligations or to complete a programme of flights.
The Bill also amends the Air Navigation Act 1920 to allow a national register of encumbered aircraft to be established pursuant to regulations to be made under the Act. The register will benefit the aviation industry by providing buyers and sellers of aircraft with information on registered security interests held by lenders and creditors over aircraft, including airframes, engines and avionics.
However, the register will provide no legal protection on transactions and will not deem a person who has not searched the register to have notice of its contents.
It is envisaged that Airservices Australia will be responsible for the development and ongoing administration of the register of security interests over encumbered aircraft . The register is to be established on a national basis and will operate on as a fully cost-recovered system.
All the States and Territories have given their in-principle approval for the establishment of the register. The States, with the exception of Victoria, have complementary legislation in the form of their Air Navigation Acts which pick up the regulations made under the Commonwealth’s Air Navigation Act 1920. Victoria has agreed to pass legislation so that the register can be established as a comprehensive national register.
In summary the amendments to the Airports Act 1996 make several technical amendments, clarify some issues which are unclear and amend a number of regulation making powers.
The amendments also propose to insert important new offences into the Act that deal with the deliberate causing of harm to the environment at an airport site (that is the acts are carried out intentionally or recklessly). The new offences are an integral part of the Commonwealth regime to protect the environment on leased Commonwealth airports and employ a ‘tiered’ approach with escalating penalties for more serious damage to the environment. Provision is made for persons charged with more serious offences to be found guilty of a lesser charge where there is insufficient evidence to convict them of the more serious charge.
The other amendments to the Airports Act 1996 include provisions which :
• provide regulation making powers
which:
- prescribe appropriate penalties in the
regulations for breaches of environmental standards and requirements;
and
- allow pre-existing contamination to be
addressed;
• require all persons who carry out activities at an airport site to comply with a final environment strategy in force for that airport;
• provide regulation making powers
which:
- prohibit or require certain provisions to be
incorporated into subleases or licences; and
-
prohibit trusts from holding subleases or licences;
• require airport-lessee companies to seek public comment prior to submitting minor variations of master plans and major development plans to the Minister for approval;
• provide for parties, other than the airport-lessee
company, to be consulted by the Minister before he or
she:
- makes a declaration subjecting an airport to
statutory demand management; or
- formulates a
demand management scheme for such an airport; and
• authorise the ACCC to publish accounts and reports provided to it under Part 7 of the Act.
The amendment to the Airports (Transitional) Act 1996 corrects a minor typographical error.
Financial Impact Statement
The amendments to the Air Navigation Act 1920 in relation to the approval of international charter flights are of a machinery nature, and will have no financial impact.
It is proposed that the register of encumbered aircraft will be operated by Airservices Australia on a full cost-recovery basis. A minimal one-off cost to establish the register will be borne initially by Airservices Australia as part of its running costs.
The amendments to the Airports Act 1996, being of a technical nature, will have little financial impact.
Aviation Legislation Amendment Bill (No. 1) 1997
Clause 1 provides that the Bill may be cited as the Aviation Legislation Amendment Act (No. 1) 1997.
The Act will commence on the day on which it receives the Royal Assent.
This clause specifies that the Acts specified in the Schedule are amended or repealed (as the case may be) as per the items set out in the Schedule.
Item 1 of the amendments to the Air Navigation Act 1920, repeals the definition of “non-scheduled flight” in subsection 3(1) of the Act, and substitutes a new definition.
This amendment extends the current definition to cover all non-scheduled flights irrespective of the nationality of the aircraft.
Item 2 contains the substantive amendments to the international charter provisions of the Air Navigation Act. Existing sections 13A, 14 and 15 of the Act are repealed and replaced by new sections 14, 15, 15A, 15B, 15C, 15D, 15E and 15F.
A new section 14, replicating the repealed section 14(1), is inserted which provides that aircraft possessing the nationality of a Contracting State to the Chicago Convention may fly in transit non-stop across Australian territory or land in Australian territory for non-traffic purposes. The section gives effect to Article 5 of the Chicago Convention.
Terms used in sections 15A to 15F are defined in this section. Importantly, new definitions of “charterer” and “charter operator” are introduced. A charterer is defined as a person who makes the arrangements for the carriage of passengers, cargo or mail, and could be, for example, a travel agent or a package tour organiser. A charter operator is defined as either the owner of the aircraft or the operator of the aircraft.
This section effectively requires international charters to have permission to operate into, within, and out of Australia. Subsections 15A(1) and (2) provide that in Australian territory, aircraft operating non-scheduled international flights shall not take on or discharge passengers, cargo or mail for reward unless a permission for such carriage is in force and the carriage is in accordance with the permission. The operator and pilot of an international charter that breaches these provisions are liable to imprisonment for a period of no more than two years see subsection 15A(5).
Subsection 15A(3) provides that the Secretary of the Department may determine that a permission is not required for a category of commercial non-scheduled flights. Subsection (4) provides that a permission is not required for aircraft which are included in a category of flights in relation to which a determination under subsection (3) is in force. These provisions will give the Department the flexibility to permit certain categories of flights, e.g. “own-use charters”, to be operated without the need to obtain prior approval.
Nevertheless, operators of aircraft which do not require permission by virtue of subsection 15A(4) will have to provide certain information in relation to the flight and the passengers in writing to the Secretary, see subsection (6). Regulations will be made detailing the information which operators must provide under this subsection.
Subsection 15A(7) provides that a determination made under subsection (3) is a subject to Parliamentary scrutiny as a disallowable instrument.
This section provides that applications to operate non-scheduled flights may be made only by the owner of the aircraft or the operator of the aircraft which will be used.
The purpose of this section is to lay the onus of obtaining permission from the Secretary on the person who owns or operates the aircraft rather than the person who merely makes the arrangements for the charter programme. It is considered that this will provide greater consumer protection as permission will only be granted to bona fide owners or operators of aircraft who are reasonably capable of fulfilling their obligations to provide air transport services, particularly in light of the information required to be produced, see e.g. subsection 15C(2).
This section sets out the details that an applicant for permission to operate non-scheduled flights has to provide to the Secretary. These details will enable the Department to assess the application on its merits.
Subsection 15C(2) provides that the Secretary may request satisfactory evidence in the application that holders of passenger tickets for the flight or flights will be indemnified for financial loss caused by failure of the charter operator to fulfil its obligations or to complete the programme. It is considered that this statutory requirement will increase protection for consumers from possible failure of charter operators to fulfil their obligations e.g. by failing to provide return flights to passengers who have bought round trip tickets.
It also provides that the Secretary may give written notice to the applicant to provide further information to determine the application and that the Secretary is not bound to consider the application until this information is received.
This section provides for the Secretary to grant or refuse permission for the application. It also provides for the form in which the permission must be granted and provides powers for the Secretary to attach conditions deemed appropriate to the permission.
Subsection 15D (3) provides that the Secretary must have regard to certain matters in determining the application. They include:
• the public interest, including the demand for air transport, the promotion of trade and tourism, and whether a wide range of places will be served by the charter program;
• the availability of capacity on scheduled flights; and
• relevant advice provided to the Minister by the International Air Services Commission regarding the public interest.
These statutory provisions will ensure that the Government’s policy to promote trade and tourism, particularly at locations not served by scheduled international flights, will form part of the consideration of applications received for the operation of non-scheduled flights.
This section provides that on application from a charter operator, the Secretary may vary a permission granted to the operator. It further provides that the Secretary may request further information from the applicant if necessary, and the Secretary is not bound to consider the application till the information is provided.
This section provides that the Secretary may vary, suspend or cancel a permission if:
• the charter operator has not complied with a condition attached to a permission or if there has been substantial change in any of the matters to which the Secretary had regard in granting the permission; or
• the Secretary is satisfied that it is in the public interest.
Because of the repeal of sections 13A, 14 and 15 of the Air Navigation Act 1920 and their replacement by new provisions, a consequential amendment to subsection 17(1) is made.
Because of the repeal of sections 13A, 14 and 15 of the Air Navigation Act 1920 and their replacement by new provisions, a consequential amendment to section 18 is made.
Item 5 of the amendments to the Air Navigation Act 1920 repeals section 22ZW of the Act. Section 22ZW provides for the review by the Administrative Appeals Tribunal (‘AAT’) of certain decisions in relation to aviation security. The section is remade as section 23A of the Act, with the inclusion of review of decisions in relation to international charters, see Item 6 below.
Item 6 of the Schedule inserts a new section 23A in Part 4 of the Air Navigation Act. Section 23A provides for AAT review of decisions made by the Secretary under the Act. The provision copies current section 22ZW in relation to review of decisions relating to aviation security (see paragraphs 23A(1)(f) to (u)), but also empowers the AAT to review decisions under sections 15D(1), 15D(2)(c), 15E(4), 15F(1), and 17(1) of the Act, see paragraphs 23A(1)(a) to (e). That is, decisions of the Secretary under the new international charter provisions appearing at Item 2 are subject to review by the AAT.
Because of the repeal of sections 13A, 14 and 15 of the Air Navigation Act 1920 and their replacement by new provisions, consequential amendments to paragraphs 27(2)(d) and (f) are made.
Paragraphs 27(3)(a), (b) and (c) of the Air Navigation Act are repealed and substituted with a new paragraph 27(3)(c). This is a consequential amendment because of the repeal of sections 13A, 14 and 15.
Item 9 of the Schedule inserts a new section 27A into the Air Navigation Act 1920.
The new section will enable the making of regulations which will provide for an Australia-wide register of encumbered aircraft and aircraft components. Once this provision is enacted, the Governor-General will be empowered to make regulations under subsection 26(1) of the Air Navigation Act which establish such a register and provide for its administration.
Proposed subsections 27A(1) and (2) provide for the application of the section. Simply put, the subsections provide that the section applies to the limits of the Commonwealth’s legislative power in relation to aircraft, relying upon the trade and commerce power (s. 51(i) of the Constitution) and the corporations power (s. 51(xx) of the Constitution).
Proposed subsection 27A(3) defines the terms “hire-purchase agreement”, “instalment purchase agreement” and “security interest” for the purposes of the section. The term “security interest” is very broadly defined, so that it will be possible to record a large number of hiring, leasing and purchasing arrangements in any register made under the regulations. The regulations will also be able to prescribe security interests which are not caught by the present provision, see subparagraph (a)(iii) under the definition of “security interest”.
Proposed subsection 27A(4) provides the basis for regulations to be made which relate to a register of encumbered aircraft and aircraft components. Regulations may be made under the Air Navigation Act 1920 which can deal with any of the matters listed in paragraphs 27A(4)(a) to (n). Importantly, it is envisaged that a register of encumbered aircraft will be operated on a cost-recovery basis, and accordingly fees-for-service may be implemented under the regulations, see paragraph 27A(4)(l) and subsection 27A(5).
Proposed subsection 27A(6) provides that a person is not taken to have notice of any matter relating to a security interest merely because of something entered on the register of encumbered aircraft and aircraft components. Thus, a person will not have constructive notice of encumbrances if he or she has failed to search the register.
This amendment to the simplified outline of the Act in section 4 is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment defines the meaning of lender, in relation to a loan security, to mean the person who is entitled to enforce the security.
This amendment inserts a new interpretative section 7A which clarifies references in the Act to the terms “transfer by way of enforcement of a loan security” and “acquisition by way of enforcement of a loan security”.
This amendment to the simplified outline of Part 2 in section 11 is consequential to the insertion of a new section 28A at item 16 and new subsections into section 29 set out in item 17.
This amendment to the simplified outline of Part 2 in section 11 is consequential to the amendments of subsections 31(1) and (2) set out in items 21 and 22.
This amendment to the simplified outline of Part 2 in section 11 is consequential to the insertion of new sections 34A, 34B, 34C 34D, 35A, 35B, 35C, 35D, 35E and 35F in items 29 and 32.
This item inserts a new subsection (2) into section 28.
The proposed subsection 28(2) requires a person who enters into possession of an airport lease which is subject to a loan security by way of enforcement of that loan security to notify the Minister in writing within 7 days after acquiring the lease. Failure to do so is an offence.
This item and the following item 17 have been inserted to clarify the Act and provide certainty for lenders to airport-lessee companies where the airport lease has been used as security for the loan.
This item inserts a new subsection (1A) into section 29.
The proposed subsection 29(1A) requires a person who enters into possession of an airport lease which is subject to a loan security by way of enforcement of that loan security to cause the lease to be transferred to a qualified company within 90 days after acquiring the lease or such longer period as the Minister advises the person in writing. this requirement will apply even if the lender who enters into possession is already a qualified company, so that the Minister’s approval of the transfer will be required under section 24. This will also ensure that the lease is transferred to a qualified company which complies with the requirements of section 32. Section 32 limits the substantial trading and financial activities of an airport-operator company to activities relating to the operation and/or development of the airport, and activities incidental to the operation and/or development of the airport.
This amendment to subsections 29(2) and (3) is consequential to the insertion of the proposed new subsection 29(1A) in item 17.
This amendment to paragraph 29(4)(b) is consequential to the insertion of the proposed new subsection 29(1A) in item 17.
This item amends the heading to Division 5 of Part 2 to “Obligation to use airport site as an airport”
This item amends subsection 31(1) by repealing the existing subsection and inserting a new subsection 31(1).
The proposed new subsection 31(1) states that section 31 has effect for the purposes of determining whether an airport-operator company for an airport, or a person acting on behalf of that company, has a defence to, or an immunity from actions or proceedings in a court, administrative proceedings or proceedings in a tribunal.
The proposed new subsection clarifies the operation of the section
This item amends subsection 31(2) and (3) and makes it clear, for the purposes of this subsection that an airport operator has an obligation to operate an airport.
This item inserts a new subdivision heading before section 32 “Subdivision A - Airport-operator company must not carry on non-airport business”.
This item inserts a new subdivision heading before section 33 “Subdivision B - Airport-management agreements”.
This amendment inserts new subsections (4A), (4B), (4C), (4D), (4E) and (4F) into section 33.
The new subsection (4A) provides that an airport-lessee company for an airport must not enter into an airport-management agreement unless the agreement has been approved in writing by the Minister. This will enable the Commonwealth to ensure that the public interest is not prejudiced in these agreements.
The new subsection (4B) provides that if a purported agreement contravenes subsection (4A) it is of no effect.
The new subsection (4C) provides that the Minister in making a decision to approve an airport-management agreement under subsection (4A) must take into account the matters specified in the regulations as well as any other matters the Minister thinks is relevant.
The new subsection (4D) provides that an airport-management agreement must not be varied unless it has been approved in writing by the Minister.
The new subsection (4E) provides that if a purported agreement contravenes subsection (4D) it is of no effect.
The new subsection (4F) provides that the Minister in making a decision to approve an airport-management agreement under subsection (4D) must take into account the matters specified in the regulations as well as any other matters the Minister thinks is relevant.
This item inserts a new subdivision heading before section 34 “Subdivision C - Subleases and licences”.
This item amends sections 34 by repealing subsections(2) and (3) and inserting new subsections 34(2) and (3).
The proposed new subsections 34(2) and (3) provides that a sublease of an airport lease must not be granted or varied in contravention of regulations made under the existing subsection 34(1) and that a purported grant or variation which is in contravention of those regulations is of no effect. These amendments bring section 34 in line with the language used in the new sections proposed in item 29.
This item inserts a new subsection (4) into section 34.
The proposed subsection 34(4) provides a period of 90 days before a sublease in force at the time regulations are made under subsection 34(1) of the Act must comply with these regulations. This is a consequential insertion to section 34 to bring it in line with the language used in the new sections proposed in item 29.
This item inserts new sections 34A, 34B, 34C and 34D.
This proposed new section provides that the regulations may prohibit specified kinds of terms from being included in subleases of airport leases, that a sublease must not be granted or varied in contravention of those regulations and that a purported grant or variation which is in contravention of those regulations is of no effect.
The proposed subsection (4) provides a period of 90 days before a sublease in force at the time regulations are made under subsection (1) must comply with these regulations.
The proposed section is intended to ensure that subleases are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may require specified kinds of terms from being included in subleases of airport leases, that a sublease must not be granted or varied in contravention of those regulations and that a purported grant or variation which is in contravention of those regulations is of no effect.
The proposed subsection (4) provides a period of 90 days before a sublease in force at the time regulations are made under subsection (1) must comply with these regulations.
The proposed section is intended to ensure that subleases are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may provide that the sublessee of an airport lease must not dispose of the lease by way of declaration of trust and that a purported disposal which contravenes those regulations is of no effect.
The proposed section, together with the proposed new section 34D will prevent any separation of the legal and beneficial interests in a sublease of an airport lease. The proposed sections are is intended to ensure that subleases are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may provide that the beneficial interest in a sublease of an airport lease must not be transferred independently of the legal interest and that a purported disposal which contravenes those regulations is of no effect. These provisions do not apply to an assignment by way of the enforcement of a loan agreement.
This item amends sections 35 by repealing subsections(2) and (3) and inserting new subsections 35(2) and (3).
The proposed new subsections 35(2) and (3) provides that a licence relating to an airport lease must not be granted or varied in contravention of regulations made under the existing subsection 35(1) and that a purported grant or variation which is in contravention of those regulations is of no effect. These amendments bring section 35 in line with the language used in the new sections proposed in item 32.
This item inserts a new subsection (4) into section 35.
The proposed subsection 35(4) provides a period of 90 days before a sublease in force at the time regulations are made under subsection 35(1) of the Act must comply with these regulations. This is a consequential insertion to section 35 to bring it in line with the language used in the new sections proposed in item 32.
This item inserts new sections 35A, 35B, 35C and 35D
This proposed new section provides that the regulations may prohibit specified kinds of terms from being included in licences relating to airport leases, that a licence must not be granted or varied in contravention of those regulations and that a purported grant or variation which is in contravention of those regulations is of no effect.
The proposed subsection (4) provides a period of 90 days before a licence in force at the time regulations are made under subsection (1) must comply with these regulations.
The proposed section is intended to ensure that licences are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may require specified kinds of terms from being included in licences relating to airport leases, that a licence must not be granted or varied in contravention of those regulations and that a purported grant or variation which is in contravention of those regulations is of no effect.
The proposed subsection (4) provides a period of 90 days before a licence in force at the time regulations are made under subsection (1) must comply with these regulations.
The proposed section is intended to ensure that licences are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may provide that the holder of a licence relating to an airport lease must not dispose of the licence by way of declaration of trust and that a purported disposal which contravenes those regulations is of no effect.
The proposed section, together with the proposed new section 35D will prevent any separation of the legal and beneficial interests in a licence relating to an airport lease. The proposed sections are is intended to ensure that licences are not used to avoid other provisions of the Act.
This proposed new section provides that the regulations may provide that the beneficial interest in a licence relating to an airport lease must not be transferred independently of the legal interest and that a purported disposal which contravenes those regulations is of no effect. These provisions do not apply to an assignment by way of the enforcement of a loan agreement.
This proposed new section clarifies that a sublease or licence may be terminated for other reasons than those provided under this Subdivision.
This proposed new section requires any acquisition of property as a result of this Subdivision to be consistent with paragraph 51 (xxxi) of the Constitution, that is, the acquisition of property is to be on just terms.
This item makes a minor typographical amendment to subsection 60(6).
This amendment to the simplified outline of Part 5 in section 67 is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This item makes a minor typographical amendment to paragraph 71(2)(h).
This item makes a minor typographical amendment to paragraph 71(3)(h).
This item inserts a new section 84A.
Proposed subsection 84A(1) requires an airport-lessee company to advertise and provide an opportunity for public comment on a preliminary version of a minor variation to a master plan before submitting the draft variation to the Minister for approval. The proposed subsection includes requirements for advertising the availability to the public of a preliminary version of the draft variation, for inspection and sale of the copies of the preliminary version of the draft variation and for inviting written public comment on the preliminary version within a period of 30 days.
Proposed subsection (2) provides that, if members of the public have given written comment about the preliminary version, the draft variation submitted to the Minister must be accompanied by a written certificate from the company about the comments which states, among other things, that the company has had due regard to them.
Proposed subsection (3) clarifies that the airport-lessee company must have regard to matters other than public comment in formulating a draft variation.
This item makes a minor typographical amendment to paragraph 89(1)(n)
This item makes a minor typographical amendment to paragraph 91(1)(k).
This item inserts a new section 95A.
Proposed subsection 95A(1) requires an airport-lessee company to advertise and provide an opportunity for public comment on a preliminary version of a minor variation to a major development plan before submitting the draft variation to the Minister for approval. The proposed subsection includes requirements for advertising the availability to the public of a preliminary version of the draft variation, for inspection and sale of the copies of the preliminary version of the draft variation and for inviting written public comment on the preliminary version within a period of 30 days.
Proposed subsection (2) provides that, if members of the public have given written comment about the preliminary version, the draft variation submitted to the Minister must be accompanied by a written certificate from the company about the comments which states, among other things, that the company has had due regard to them.
Proposed subsection (3) clarifies that the airport-lessee company must have regard to matters other than public comment in formulating a draft variation.
This amendment to the simplified outline of Division 5 in section 97 is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This item makes a minor typographical amendment to paragraph 100(2)(d) which is made necessary by the insertion of paragraphs 100(2)(e) and (f) set out in item 43.
This item allows:
• standards made by or by an authority of, the United States of America; or
• standards made by or by an authority of, a member state of the European Union;
to be applied, adopted or incorporated into regulations concerning approvals of building activities made under subsection 100(1).
This amendment will allow regulations made under section 100 to make use of US and European standards, where the Building Code of Australia, or Standards proposed or approved by the Standards Association of Australia, do not cover that type of airport building activity.
This amendment to the heading of Subdivision D of Division 5 is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This item amends the section 104 by repealing the current section and inserting a new section 104.
The amendment has the effect of repealing the definition of ‘certificates of fitness’ and replacing it with the definition of ‘certificate of compliance’ as set out in item 50.
This amendment to paragraph 106(1)(c) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment to paragraph 106(1)(d) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50. It clarifies that certificates of occupancy or use issued before a lease for an airport is granted under the Airports (Transitional) Act 1996 will remain in force after an airport lease is granted over an airport.
This amendment to paragraph 106(4)(c) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment to paragraph 106(4)(d) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50. It clarifies that certificates of occupancy or use issued before a lease for an airport is granted under the Airports (Transitional) Act 1996 will remain in force after an airport lease is granted over an airport.
This item amends paragraph 107(1)(a) by repealing the current paragraph and inserting a new paragraph 107(1)(a)
The proposed new paragraph 107(1)(a) allows regulations to be made for and in relation to certificates of compliance, and defines the nature of the certificates as stating that “a building, structure, earthworks, engineering works, electrical works, hydraulic works or eligible alteration is to be treated as complying with the regulations”.
This amendment to paragraphs 107(1)(b), (c), (d), and (e) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This item makes a minor typographical amendment to paragraph 107(2)(d) which is made necessary by the insertion of paragraphs 107(2)(e) and (f) set out in item 53.
This item allows:
• standards made by or by an authority of, the United States of America; or
• standards made by or by an authority of, a member state of the European Union;
to be applied, adopted or incorporated into regulations concerning certificates of compliance made under subsection 107(1).
This amendment will allow regulations made under section 107 to make use of US and European standards, where the Building Code of Australia, or Standards proposed or approved by the Standards Association of Australia, do not cover that type of airport building activity.
This amendment to subsection 107(5) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment to section 108 is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment to subparagraph 109(1)(c)(i) is consequential to the amendments to section 104 and paragraph 107(1)(a) set out in items 45 and 50.
This amendment inserts a new point into the simplified outline for part 6, noting that it is an offence to cause environmental pollution at an airport site. This is consequential to the insertion of new sections 131A, 131B, 131C and 131D as set out at item 61.
This amendment inserts a new subsection (1A) into section 130.
The proposed new subsection 131(1A) provides that all people carrying out activities at an airport take all reasonable steps to comply with the environment strategy in force at that airport. This reflects the central role that the environment strategy (required under section 115) is intended to play as the centrepiece of a performance-based regulatory regime under which all persons are responsible for environmental impacts associated with their activity.
This amendment to subsections 130 (2) and (3) is consequential to the insertion of a new subsection 130(1A), as set out at item 58.
This amendment inserts a new subsection 130(4) into section 130 which draws specifically on the Commonwealth’s power to regulate constitutional corporations as a basis for giving effect to the new subsection 130(1A), as set out at item 58.
This item inserts new sections 131A, 131 B, 131C, 131D, and 131E.
These proposed sections establish three ‘tiered’ offences to deal with persons causing deliberate damage to the environment at an airport site (that is persons intentionally or recklessly carrying out acts to damage the environment). The inclusion of these offences will ensure that persons who cause harm to the environment at airports through pollution can be charged with offences appropriate to the damage they cause.
The proposed offences are structured to deal with escalating levels of damage to the environment. The proposed new section 131E provides for alternative verdicts where, if a person is charged with a more serious offence, a court may find that person guilty of a lesser offence where the more serious offence cannot be proved beyond reasonable doubt.
These amendments, in conjunction with the controls set out in the Airports (Environment Protection) Regulations made under the Airports Act 1996, will ensure that the environment is adequately protected on leased Commonwealth airports.
Note that the offences do not deal with noise pollution as this is already controlled under the Airports (Environment Protection) Regulations, the Air Navigation (Aircraft Noise) Regulations and other Commonwealth laws.
This proposed new section provides that Division 3 of Part 6 applies to a core regulated airport (as defined in section 7), or an airport specified in the regulations where there is an airport lease for the airport.
The proposed new subsection (1) provides that it is an offence to cause environmental pollution that affects an area on an airport site and causes serious environmental harm. The indicators of serious environmental harm are set out below.
The pollution which causes harm to the environment either:
• affects an area identified in the environment strategy as being environmentally significant; or
• is, or has the potential to be, of high impact and irreversible; or
• results, or has the potential to result in substantial harm to public health or public safety; or
• results, or has the potential to result in substantial damage to property.
One example of the type of harm to the environment contemplated by this section would be the extinction of a species.
Subsection (2) makes it an offence to intentionally or recklessly cause serious environmental harm under subsection (1), and provides for a maximum penalty for a company not exceeding $250,000 on conviction ($50,000 for an individual).
Subsection (3) specifies that subsection (1) applies to acts or omissions by a person even where the act or omission was not the sole cause of the pollution.
Subsection (4) notes that this section does not limit the regulation-making powers under Sections 132 or 133.
Subsection (5) provides that references in this section to environmental pollution includes air, water and soil pollution, but does not include noise pollution.
The proposed new subsection (1) provides that it is an offence to cause environmental pollution that affects an area on an airport site and causes serious environmental harm. The indicators of serious environmental harm are set out below.
The pollution which causes harm to the environment either:
• is, or has the potential to be, of significant impact; or
• results, or has the potential to result in harm to public health or public safety; or
• results, or has the potential to result in damage to property (other than minor damage).
The type of harm to the environment contemplated by this section is that which although falling short of that which is serious harm to the environment is harm that is not negligible or trivial. One example would be the intentional discharge of fuel into a watercourse on the airport.
Subsection (2) makes it an offence to intentionally or recklessly cause material environmental harm under subsection (1), and provides for a maximum penalty for a company not exceeding $100,000 on conviction ($20,000 for an individual).
Subsection (3) specifies that subsection (1) applies to acts or omissions by a person even where the act or omission was not the sole cause of the pollution.
Subsection (4) notes that this section does not limit the regulation-making powers under Sections 132 or 133.
Subsection (5) provides that references in this section to environmental pollution includes air, water and soil pollution, but does not include noise pollution.
The proposed new subsection (1) provides that it is an offence to cause environmental pollution that is an environmental nuisance to an area on an airport site. It provides that all acts or omissions which cause environmental pollution of this type are covered by this offence, except those which are authorised by or under this Act (for example, under the Airports (Environment Protection) Regulations), or other Commonwealth law. This subsection also specifies that environmental nuisance has occurred where either the:
• pollution takes the form of smoke, dust or odour; or
• effect of the pollution is of low impact and is transient; or
• effect of the pollution interferes unreasonably with people’s enjoyment of the area.
One example of the type of harm to the environment contemplated by this section would be the large scale burning of rubbish on the airport.
Subsection (2) makes it an offence to intentionally or recklessly cause serious environmental harm under subsection (1), and provides for a maximum penalty for a company not exceeding $25,000 on conviction ($5,000 for an individual).
Subsection (3) specifies that subsection (1) applies to acts or omissions by a person even where the act or omission was not the sole cause of the pollution.
Subsection (4) notes that this section does not limit the regulation-making powers under Sections 132 or 133.
Subsection (5) provides that references in this section to environmental pollution includes air, water and soil pollution, but does not include noise pollution.
This proposed new section provides that a court may find a person to guilty of a lesser offence (the offences under 131C or 131D) if they have been charged with the more serious offence (under 131B or 131C), where the court is satisfied that the person is guilty of the lesser offence.
This item makes the meaning of the section more specific by adding the word “particular” before “provision” in subsection 132(2).
This amendment to subsection 132(2) replaces the specific limit of 250 penalty units in existing subsection 132(2) and enables regulations to declare maximum penalties (up to a limit of 250 penalty units) for a contravention of that subsection. This reflects the move to flexible “tiered” penalties which are aligned to match the seriousness of an offence and is consistent with the insertion of new sections 131A, 131B, 131C and 131D, as set out at item 61.
This amendment inserts a new subsection (3A) into section 132.
The proposed new subsection 132(3A) allows regulations to be made for the purposes of subsection (1) which apply, adopt or incorporate (with or without modification) matters set out in Standards Association of Australia standards.
This amendment inserts a new paragraph 133(1)(aa) into Subsection 133(1).
The proposed new paragraph 133(1)(aa) allows for regulations to be made in relation to monitoring, mitigating, remedying or rectifying contraventions of sections 131B, 131C or 131D. This item is consequential to the insertion of these new sections, as set out at item 61.
This amendment inserts new subsections (3A) and (3B) into section 133.
The proposed new subsection 133(3A) allows regulations to be made for the purposes of subsection (1) which apply, adopt or incorporate (with or without modification) matters set out in Standards Association of Australia standards.
The proposed new subsection 133(3B) clarifies that regulations made for the purposes of subsection 133(1) may deal with monitoring, cleaning up, remedying or rectifying environmental pollution which occurred prior to the making of this Act or regulations made under this Act (see the Airports (Environment Protection) Regulations).
This item amends paragraph 134(1)(a) by repealing the current paragraph and inserting a new paragraph 134(1).
The proposed paragraph 134(1)(a) allows for recovery of expenses by an airport-operator company where a person contravenes the new sections 131B, 131C or 131D and is consequential to the insertion of these new sections, set out at item 61.
This item amends paragraph 135(1)(a) by repealing the current paragraph and inserting a new paragraph 135(1)(a).
The proposed paragraph 135(1)(a) allows for recovery of expenses by the Commonwealth where a person contravenes the new sections 131B, 131C or 131D and is consequential to the insertion of these new sections, set out at item 61.
This amendment provides that the new sections 131B, 131C and 131D are identified in subsection 136(2) as being matters on which regulations may declare that a specified law of a State or Territory has no effect.
This amendment provides that the new subsection 133(1)(aa) is identified in subsection 136(2) as being a matter on which regulations may declare that a specified law of a State or Territory has no effect.
This item amends subsection 137(1) by repealing the current subsection and inserting a new subsection 137(1).
The proposed new subsection 137(1) allows for the new sections 131B, 131C and 131D to be included as provisions to which this section applies and is consequential to the insertion of these new sections, set out at item 61.
This item makes a minor typographical amendment to subsection 137(2).
This item inserts a new section 143A.
This proposed new section allows the Australian Consumer and Competition Commission to publish accounts and statements given to it under section 143, and to charge fees for this.
This item inserts a new section 145A.
This proposed new section allows the Australian Consumer and Competition Commission to publish accounts and statements given to it in accordance with a requirement covered by section 145, and to charge fees for this.
This item makes a minor typographical amendment to subsection 147(1).
This item inserts a new subsection (3) into section 147 and is consequential to the insertion of the proposed new section 143A in item 74.
The proposed subsection 147(3) applies a provision of the Prices Surveillance Act 1983 which protects the confidentiality of information given to the ACCC under that Act to information contained in accounts and statements, and airport reports which the ACCC may publish under the proposed new section 143A.
This item amends subsection 200(1) by repealing the current subsection and inserting a new subsection 200(1).
This proposed new subsection 200(1) expands the range of specified persons who are invited to give the Minister a submission about the proposed declaration under Section 198, beyond just the airport-operator company.
This item makes a consequential technical amendment to subsection 200(2).
This item amends subsection 202(1) by repealing the current subsection and inserting a new subsection 202(1).
This proposed new subsection 202(1) expands the range of specified persons who are invited to give the Minister a submission about the proposed declaration under Section 201, beyond just the airport-operator company
This item makes a consequential technical amendment to subsection 202(2).
This amendment to paragraph 242(2)(c) is consequential to the insertion of new subsections (4A), (4B), (4C), (4D), (4E) and (4F) into section 33 set out in item 25.
This item inserts a new paragraph (g) into subsection 242(2) and provides that decisions by the Minister under section 233 (which deals with authorised officers for the purposes of exercising monitoring powers) is a type of decision to which applications cannot be made to the Tribunal.
This item inserts a clarification into subsection 242(5) that provides that for the purposes of section 242, the expression “this Act” does not include the regulations.
This item inserts a new subsection (6) into section 242.
The proposed subsection 242(6) clarifies that the regulations may make provision for applications to the AAT for the review of decisions made under the regulations.
This amendment to paragraph 243(1)(c) is consequential to the insertion of new subsections (4A), (4B), (4C), (4D), (4E) and (4F) into section 33 set out in item 25.
This item makes a typographical amendment to subsection 30(3).