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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Airports Bill
1996
No. ,
1996
(Transport and Regional
Development)
A Bill for an Act about
airports
9604720—1,650/21.5.1996—(47/96) Cat. No.
96 4590 X ISBN 0644 437154
Contents
A Bill for an Act about
airports
The Parliament of Australia enacts:
This Act may be cited as the Airports Act 1996.
This Act commences on the day on which it receives the Royal
Assent.
The objects of this Act are as follows:
(a) to promote the sound development of civil aviation in
Australia;
(b) to establish a system for the regulation of airports that has due
regard to the interests of airport users and the general community;
(c) to promote the efficient and economic development and operation of
airports;
(d) to facilitate the comparison of airport performance in a transparent
manner;
(e) to ensure majority Australian ownership of airports;
(f) to limit the ownership of airports by airlines;
(g) to implement international obligations relating to airports.
The following is a simplified outline of this Act:
• This Act sets up a system for regulating
airports.
• A Commonwealth-owned airport can only be
leased to a company. The company is called an airport-lessee
company.
• There will only be one airport-lessee company
for each airport and the company will not be allowed to lease another
airport.
• An airport-lessee company’s sole
business will be to run the airport.
• An airport-lessee company can contract out
the management of the airport to another company. The other company is called an
airport-management company.
• This Act uses the term airport-operator
company to cover both airport-lessee companies and airport-management
companies.
• Airport-operator companies are subject to the
following ownership restrictions:
(a) a 49% limit on foreign ownership;
(b) a 5% limit on airline ownership.
• For each airport, there will be an airport
master plan.
• Major development plans will be required for
significant developments at airports.
• Building activities on airport sites will
require approval.
• Buildings and structures on airport sites
must be certified as fit for occupancy or use.
• For each airport, there will be an
environment strategy.
• The regulations may deal with environmental
standards at airport sites.
• An airport-operator company may be required
to give accounts and reports to the Australian Competition and Consumer
Commission.
• The Australian Competition and Consumer
Commission will monitor the quality of airport services and
facilities.
• Airport-lessee companies must give written
consent before airport sites are varied or closed.
• The regulations may implement certain
international agreements relating to airports.
• The regulations may deal with the control of
the following matters at airports:
(a) liquor;
(b) commercial trading;
(c) vehicle movements;
(d) gambling;
(e) smoking.
• The regulations may control intrusions into
prescribed airspace around airports.
• An airport service will be
a declared service for the purposes of the access regime set out in Part IIIA of
the Trade Practices Act 1974 unless an access undertaking is given within
12 months after responsibility for the airport is transferred to the private
sector.
• The Minister may formulate demand management
schemes for airports.
• Airservices Australia will generally oversee
the provision of air traffic services and rescue and fire fighting services at
airports.
In this Act, unless the contrary intention appears:
ACCC means the Australian Competition and Consumer
Commission.
agreement means any agreement, whether formal or informal and
whether express or implied.
aircraft means a machine or craft that can derive support in
the atmosphere from the reactions of the air.
aircraft movement means:
(a) the landing of an aircraft at an airport; or
(b) the taking off of an aircraft from an airport.
airline means a person who carries on a commercial air
transport enterprise that involves offering or operating scheduled or chartered
air services.
airport means an airport in Australia.
airport capacity declaration has the meaning given by section
187.
airport lease means a lease of the whole or a part of an
airport site, where:
(a) the Commonwealth is the lessor; and
(b) if the airport is not a joint-user airport—the leased area
includes the airport runways; and
(c) if the airport is a joint-user airport—the leased area consists
of the area ascertained in accordance with the regulations.
airport-lessee company means a company that holds an airport
lease.
airport-management agreement has the meaning given by section
33.
airport-management company means a company that is a party to
an airport-management agreement with an airport-lessee company.
airport-operator company means an airport-lessee company or
an airport-management company.
airport site means a place that is:
(a) declared by the regulations to be an airport site; and
(b) a Commonwealth place; and
(c) used, or intended to be developed for use, as an airport (whether or
not the place is used, or intended to be developed for use, for other
purposes).
Note: The boundaries of an airport site are ascertained in
accordance with the regulations.
Australia, when used in a geographical sense, includes the
external Territories.
Commonwealth place means:
(a) a Commonwealth place within the meaning of the Commonwealth Places
(Application of Laws) Act 1970; or
(b) a place in a Territory, where the place is owned by the
Commonwealth.
company means a body corporate.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
core regulated airport has the meaning given by section
7.
declared capacity, in relation to an airport, has the meaning
given by section 187.
demand management scheme has the meaning given by section
193.
draft environment strategy means a draft environment strategy
under Division 2 of Part 6.
draft master plan means a draft master plan under Division 3
of Part 5.
Federal Court means the Federal Court of Australia.
final environment strategy means a final environment strategy
under Division 2 of Part 6.
final master plan means a final master plan under Division 3
of Part 5.
interest, in relation to an airport lease, means a right or
interest, whether legal or equitable, in the airport lease, by whatever term
called, and includes an option to acquire such a right or interest in the
airport lease, but does not include a sublease.
international air transport means air transport between a
place in Australia and a place outside Australia.
interstate air transport includes air transport between a
State and a Territory or between 2 Territories.
joint-user airport means:
(a) Canberra Airport; or
(b) Darwin Airport; or
(c) Townsville Airport.
lending money includes providing non-equity finance where the
provision of the finance may reasonably be regarded as equivalent to lending
money.
loan security means a security held solely for the purposes
of a moneylending agreement.
major development plan means a major development plan under
Division 4 of Part 5.
moneylending agreement means an agreement entered into in
good faith in the ordinary course of carrying on a business of lending money,
but does not include an agreement dealing with any matter unrelated to the
carrying on of that business.
qualified company means a company that:
(a) is a constitutional corporation; and
(b) is incorporated, or taken to be incorporated, under the Corporations
Law of a State or internal Territory; and
(c) has a share capital.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct, whether unilateral or otherwise.
this Act includes the regulations.
unacceptable airline-ownership situation has the meaning
given by section 44.
unacceptable foreign-ownership situation has the meaning
given by section 40.
Note: The Schedule sets out definitions of expressions used
in Part 3 (which deals with ownership restrictions).
For the purposes of this Act, Sydney West Airport is taken to be an
airport at a particular time even if, at that time, it is:
(a) merely intended to be developed for use as an airport; or
(b) being developed for use as an airport.
(1) For the purposes of this Act, each of the following airports is a
core regulated airport:
(a) Sydney (Kingsford-Smith) Airport;
(b) Sydney West Airport;
(c) Melbourne (Tullamarine) Airport;
(d) Brisbane Airport;
(e) Perth Airport;
(f) Adelaide Airport;
(g) Coolangatta Airport;
(h) Hobart Airport;
(i) Launceston Airport;
(j) Alice Springs Airport;
(k) Canberra Airport;
(l) Darwin Airport;
(m) Townsville Airport;
(n) an airport specified in the regulations, where the site of the airport
is a Commonwealth place.
(2) For the purposes of paragraph (1)(n), the boundaries of the site of an
airport are to be ascertained in accordance with the regulations.
(1) This Act binds the Crown in the right of the Commonwealth, of each of
the States, of the Australian Capital Territory, of the Northern Territory and
of Norfolk Island.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act extends to all the external Territories.
This Act extends to acts, omissions, matters and things outside
Australia, whether or not in a foreign country.
The following is a simplified outline of this Part:
• Airport leases are subject to the following
key rules:
(a) the lessee must be a company;
(b) the term of the lease must not be longer than 50 years (with or
without an option to renew for up to 49 years);
(c) the lease must provide for access by interstate and/or international
air transport;
(d) a company can only have one airport lease.
• The airport-lessee companies for Sydney
(Kingsford-Smith) Airport and Sydney West Airport must be wholly-owned
subsidiaries of the same holding company.
• Airport leases can only be transferred with
the Minister’s approval.
• The beneficial and legal interests in an
airport lease cannot be separated except in the case of the enforcement of a
loan security.
• If a lender acquires a lease by way of the
enforcement of a loan security, the lender must:
(a) notify the Minister; and
(b) transfer the lease to another company.
• An airport-lessee company has statutory
authority to use the airport site as an airport.
• An airport-lessee company’s sole
business will be to run the airport.
• An airport-lessee company can contract out
the management of the airport to another company. The other company is called an
airport-management company. An airport-management company must be
approved by the Minister.
• The regulations may prohibit certain
subleases and licences relating to airport sites.
(1) This Part applies to:
(a) a core regulated airport; or
(b) an airport specified in the regulations, where the site of the airport
is a Commonwealth place.
(2) For the purposes of paragraph (1)(b), the boundaries of the site of an
airport are to be ascertained in accordance with the regulations.
The Commonwealth may grant an airport lease under this section.
Grant
(1) The Commonwealth must not grant an airport lease unless the lease
complies with subsection (5).
Variation
(2) An airport lease must not be varied unless the varied lease complies
with subsection (5).
Transfer
(3) The Minister must not approve the transfer of an airport lease unless
the transferred lease complies with subsection (5).
Contravention
(4) If a purported grant, variation or approval contravenes this section,
it is of no effect.
Rules about airport leases
(5) An airport lease complies with this subsection if:
(a) there is a single lessee; and
(b) the lessee is a qualified company; and
(c) the term of the lease is not longer than 50 years (with or without an
option to renew the lease for up to 49 years); and
(d) if the airport is neither a joint-user airport nor Sydney West
Airport—the lease provides for the use of the site as an airport (whether
or not the lease also provides for other uses); and
(e) if the airport is a joint-user airport—the lease provides for
the use of the leased area for purposes in connection with the airport (whether
or not the lease also provides for other uses); and
(f) if the airport is Sydney West Airport—the lease provides for the
development of the site as an airport or the use of the site as an airport, or
both (whether or not the lease also provides for other developments or other
uses); and
(g) the lease provides for access to the airport by interstate air
transport or international air transport, or both (whether or not the lease also
provides for other access).
(1) This section applies to an airport lease if the lessee is a qualified
company.
(2) If, at a particular time, the lessee ceases to be a qualified company,
the lease terminates at that time.
(1) The Commonwealth must not grant an airport lease to a person who
already holds an airport lease or an interest in an airport lease.
(2) The Minister must not approve the transfer of an airport lease to a
person who already holds an airport lease or an interest in an airport
lease.
(3) If a purported grant or approval contravenes this section, it is of no
effect.
(1) The Commonwealth must not simultaneously grant to the same person 2 or
more airport leases.
(2) If purported grants contravene this section, they are of no
effect.
Grant of lease under this Act or under section 22 of the Airports
(Transitional) Act
(1) The Commonwealth must not grant an airport lease under section 13 of
this Act, or under section 22 of the Airports (Transitional) Act 1996,
for Sydney (Kingsford-Smith) Airport or Sydney West Airport unless each of the
airport-lessee companies is a subsidiary of the same company.
Grant of lease under section 21 of the Airports (Transitional)
Act
(2) If:
(a) an airport lease for Sydney (Kingsford-Smith) Airport is granted to a
company under section 21 of the Airports (Transitional) Act 1996;
or
(b) an airport lease for Sydney West Airport is granted to a company under
section 21 of the Airports (Transitional) Act 1996;
the Commonwealth must take such steps as are necessary to ensure that, in
the event of the disposal by the Commonwealth of its shares in either of those
companies, each of those companies becomes a subsidiary of the same
company.
Transfer of lease for Sydney (Kingsford-Smith) Airport
(3) The Minister must not approve the transfer of an airport lease for
Sydney (Kingsford-Smith) Airport unless the transferee and the airport-lessee
company for Sydney West Airport will be subsidiaries of the same
company.
Transfer of lease for Sydney West Airport
(4) The Minister must not approve the transfer of an airport lease for
Sydney West Airport unless the transferee and the airport-lessee company for
Sydney (Kingsford-Smith) Airport will be subsidiaries of the same
company.
Contravention
(5) If a purported grant or approval contravenes this section, it is of no
effect.
Termination of leases
(6) If, at a particular time when the Commonwealth does not beneficially
own all the shares in:
(a) the airport-lessee company for Sydney (Kingsford-Smith) Airport;
and
(b) the airport-lessee company for Sydney West Airport;
an unacceptable leasing situation comes into existence for Sydney
(Kingsford-Smith) Airport and Sydney West Airport:
(c) the airport lease for Sydney (Kingsford-Smith) Airport terminates at
that time; and
(d) the airport lease for Sydney West Airport terminates at that
time.
For this purpose, an unacceptable leasing situation exists
for Sydney (Kingsford-Smith) Airport and Sydney West Airport if the
airport-lessee companies for those airports are not subsidiaries of the same
company.
Subsidiaries
(7) For the purposes of this section, a company (the subsidiary
company) is taken to be a subsidiary of another company
(the holding company) if, and only if, all the shares in the
subsidiary company are beneficially owned by the holding company.
(1) The Commonwealth must not grant a lease of the whole or a part of an
airport site if there is already an airport lease for the airport.
(2) If a purported grant contravenes this section, it is of no
effect.
(1) The Commonwealth must not simultaneously grant 2 or more leases
relating to different parts of the same airport site.
(2) If purported grants contravene this section, they are of no
effect.
(1) The Commonwealth must not grant an airport lease to a company if the
Minister is satisfied that:
(a) an unacceptable foreign-ownership situation in relation to the company
would come into existence in the event of the grant; or
(b) an unacceptable airline-ownership situation in relation to the company
would come into existence in the event of the grant.
(2) If a purported grant contravenes this section, it is of no
effect.
(1) An airport lease is granted under section 13 subject to all existing
leases in relation to the land concerned.
(2) The following provisions have effect:
(a) all obligations and benefits of the Commonwealth under, or connected
with, such an existing lease:
(i) pass to the airport-lessee company; and
(ii) cease to be enforceable by or against the Commonwealth;
whether or not the obligations or benefits touch and concern the
land;
(b) an instrument relating to such an obligation or benefit continues to
have effect after the grant of the airport lease as if a reference in the
instrument to the Commonwealth or the Federal Airports Corporation were a
reference to the company;
(c) the company becomes the Commonwealth’s successor in law, in
relation to such an obligation or benefit, immediately after the grant of the
airport lease.
Note 1: The lessees of existing leases become lessees of the
airport-lessee company.
Note 2: Subsections (1) and (2) relate to the obligations
and benefits of the Commonwealth as lessor. Section 17 of the Airports
(Transitional) Act 1996 deals with a case where the Commonwealth is the
lessee under an existing lease.
(3) An airport lease is granted under section 13 subject to all other
existing interests in the land concerned.
(4) Paragraph (2)(b) does not modify any register kept by a land
registration official under a law of a State or Territory.
(5) In this section:
instrument includes a document.
(1) A person must not acquire an airport lease, or an interest in an
airport lease, unless:
(a) the person is a qualified company; or
(b) the acquisition is by way of the enforcement of a loan security and
the person is a constitutional corporation.
(2) If a purported acquisition contravenes this section, it is of no
effect.
(1) An airport lease must not be transferred without the written approval
of the Minister.
(2) If a purported transfer contravenes this section, it is of no
effect.
(3) The Minister may only refuse to approve the transfer of an airport
lease:
(a) on a ground specified in the regulations; or
(b) on the grounds set out in subsection 14(3); or
(c) the grounds set out in subsection 16(2); or
(d) on the grounds set out in subsection 18(3) or (4); or
(e) on the grounds set out in section 25.
(4) This section does not apply to a transfer by way of the enforcement of
a loan security.
The Minister must not approve the transfer of an airport lease to a
company if the Minister is satisfied that:
(a) an unacceptable foreign-ownership situation in relation to the company
would come into existence in the event of the transfer; or
(b) an unacceptable airline-ownership situation in relation to the company
would come into existence in the event of the transfer.
(1) The lessee of an airport lease must not dispose of the lease by way of
declaration of trust.
(2) If a purported disposal contravenes this section, it is of no
effect.
(1) A beneficial interest in an airport lease must not be transferred
independently of the legal interest in the lease.
(2) If a purported transfer contravenes this section, it is of no
effect.
(3) This section does not apply to a transfer by way of the enforcement of
a loan security.
If:
(a) a person acquires an airport lease; and
(b) the acquisition is by way of the enforcement of a loan security;
the person must, within 7 days after acquiring the lease, give the Minister
written notice of the acquisition.
Penalty: 100 penalty units.
Re-transfer
(1) If:
(a) a person acquires an airport lease; and
(b) the acquisition is by way of the enforcement of a loan security;
the person must transfer the lease to a qualified company:
(c) within 90 days after acquiring the lease; or
(d) if a longer period is specified in a written notice given to the
person by the Minister—within that longer period.
Offence
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 400
penalty units.
Court orders
(3) If:
(a) a person contravenes subsection (1) in relation to an airport lease;
and
(b) the Minister applies to the Federal Court for an order terminating the
lease;
the court may make such orders as the court considers appropriate for the
purpose of terminating the lease.
Criteria for making order
(4) In deciding whether to make such an order, the court must have regard
to:
(a) whether the person made reasonable efforts to obtain the
Minister’s approval for the transfer of the lease to another person;
and
(b) the reasonableness of the Minister’s decisions under paragraph
(1)(d) in relation to the lease; and
(c) such other matters (if any) as the court considers relevant.
This Act does not, by implication, prevent an airport lease from being
terminated otherwise than under a provision of this Act.
(1) This section has effect for the purposes of:
(a) an action or proceeding in a court (whether criminal or civil);
or
(b) an administrative proceeding; or
(c) a proceeding in a tribunal;
that involves:
(d) an airport-operator company; or
(e) a person acting on behalf of an airport-operator company.
Airports other than joint-user airports
(2) In the case of an airport other than a joint-user airport, the company
has, by force of this subsection, authority to use the airport site concerned as
an airport.
Joint-user airports
(3) In the case of a joint-user airport, the company has, by force of this
subsection, authority to use the airport site for purposes in connection with
the airport.
Licences
(4) This section does not free a person from a requirement to hold a
licence or permit (however described) under a law of the Commonwealth. For this
purpose, law of the Commonwealth does not include an applied
provision within the meaning of the Commonwealth Places (Application of Laws)
Act 1970.
Airports other than joint-user airports
(1) An airport-operator company for an airport (other than a joint-user
airport) must not carry on substantial trading or financial activities other
than:
(a) activities relating to the operation and/or development of the
airport; or
(b) activities incidental to the operation and/or development of the
airport; or
(c) activities that, under the regulations, are treated as activities
incidental to the operation and/or development of the airport.
Joint-user airports
(2) An airport-operator company for a joint-user airport must not carry on
substantial trading or financial activities other than:
(a) activities connected with the airport; or
(b) activities incidental to activities connected with the airport;
or
(c) activities that, under the regulations, are treated as activities
incidental to activities connected with the airport.
Offence
(3) A company that intentionally or recklessly contravenes subsection (1)
or (2) is guilty of an offence punishable on conviction by a fine not exceeding
2,000 penalty units.
Loan securities
(4) Subsections (1) and (2) do not apply to an airport-lessee company if
the company acquired its airport lease by way of the enforcement of a loan
security.
Validity of transactions
(5) A contravention of this section does not affect the validity of any
transaction.
(1) The airport-lessee company for an airport must not enter into an
airport-management agreement in relation to the airport unless the other party
to the agreement is both:
(a) approved in writing by the Minister; and
(b) a qualified company.
Note: Airport-management agreement is defined
by subsection (7).
Contravention
(2) If a purported agreement contravenes subsection (1), it is of no
effect.
Breach of ownership restrictions
(3) The Minister must not approve a company under subsection (1) if the
Minister is satisfied that:
(a) an unacceptable foreign-ownership situation in relation to the company
would come into existence in the event that the agreement was entered into;
or
(b) an unacceptable airline-ownership situation in relation to the company
would come into existence in the event that the agreement was entered
into.
Other grounds for refusing approval
(4) If subsection (3) does not apply to the approval of a company under
subsection (1), the Minister may only refuse to approve the company on a ground
specified in the regulations.
Termination of agreement if contractor ceases to be a qualified
company
(5) If:
(a) a qualified company (the contractor) enters into an
airport-management agreement in relation to an airport; and
(b) at a particular time, the contractor ceases to be a qualified company;
the agreement terminates at that time.
Other means of termination
(6) This section does not, by implication, prevent an agreement from being
terminated otherwise than under subsection (5).
Airport-management agreement
(7) For the purposes of this Act, an airport-management
agreement, in relation to an airport, is an agreement (other than a
contract of employment or a prescribed kind of agreement) between:
(a) the airport-lessee company for the airport; and
(b) another person;
under which the other person (either alone or together with the company
and/or one or more other persons) is in a position to exercise control over
either or both of the following:
(c) the operation of the whole or a substantial part of the
airport;
(d) the direction to be taken in relation to the development of the whole
or a substantial part of the airport.
Economic and commercial substance of agreement
(8) In determining whether an agreement is an airport-management
agreement, regard must be had to the economic and commercial substance of the
agreement.
(9) Subsection (8) does not, by implication, limit subsection
(7).
(1) The regulations may prohibit specified kinds of subleases of an
airport lease.
(2) The lessee of an airport lease must not grant a sublease of the lease
in contravention of those regulations.
(3) If a purported sublease contravenes those regulations, it is of no
effect.
(1) The regulations may prohibit specified kinds of licences relating to
an airport lease.
(2) The lessee of an airport lease must not grant a licence relating to
the lease in contravention of those regulations.
(3) If a purported licence contravenes those regulations, it is of no
effect.
The Lands Acquisition Act 1989 does not apply to anything done
under this Part.
(1) This section applies if an airport lease is granted under section
13.
(2) The relevant land registration official may make such entries or
notations in or on registers or other documents kept by the official (in
electronic form or otherwise) as the official thinks appropriate for the
purposes of drawing the attention of persons to the existence of this Act. For
this purpose, the relevant land registration official is the
Registrar of Titles or other proper officer of the State or Territory in which
the airport is situated.
The following is a simplified outline of this Part:
• Airport-operator companies are subject to the
following ownership restrictions:
(a) a 49% limit on foreign ownership;
(b) a 5% limit on airline ownership.
• Those limits relate to a person’s
stake in a company.
• A person’s stake includes the interests
of the person’s associates.
• There are 4 different types of stake. The
main types are:
(a) percentage of total paid-up share capital; and
(b) percentage of voting power.
• The ownership restrictions will be breached
if any type of stake goes over the relevant limit.
• Stake and other technical
expressions used in this Part are defined by the Schedule.
• The central management and control of an
airport-operator company must be exercised at a place in Australia.
• A majority of the directors of an
airport-operator company must be Australian citizens and/or Australian
residents.
• The regulations may require records to be
kept, and information to be given, for purposes relating to the ownership
restrictions.
The Schedule sets out definitions of expressions used in this
Part.
For the purposes of this Act, an unacceptable foreign-ownership
situation exists in relation to an airport-operator company if there is
a group of foreign persons who hold, in total, a particular type of stake in the
company of more than 49%.
Note 1: A group can consist of a single
foreign person—see the Schedule.
Note 2: A person’s stake includes the
interests of the person’s associates—see the
Schedule.
If:
(a) a person, or 2 or more persons under an arrangement, acquire shares in
a company; and
(b) the acquisition has the result, in relation to an airport-operator
company, that:
(i) an unacceptable foreign-ownership situation comes into existence in
relation to the company; or
(ii) if an unacceptable foreign-ownership situation already exists in
relation to the company—there is an increase in the total of any type of
stake held by any group of foreign persons in the company; and
(c) the person or persons mentioned in paragraph (a) knew, or were
reckless as to whether, the acquisition would have that result;
the person or persons mentioned in paragraph (a) are guilty of an offence
punishable on conviction by a fine not exceeding 400 penalty units.
(1) An airport-operator company must take all reasonable steps to ensure
that an unacceptable foreign-ownership situation does not exist in relation to
the company.
(2) A company that knowingly or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 500
penalty units.
(1) If an unacceptable foreign-ownership situation exists in relation to
an airport-operator company, the Federal Court may, on application by the
Minister or the company, make such orders as the court considers appropriate for
the purpose of ensuring that that situation ceases to exist.
(2) The Federal Court’s orders include:
(a) an order directing the disposal of shares; or
(b) an order restraining the exercise of any rights attached to shares;
or
(c) an order prohibiting or deferring the payment of any sums due to a
person in respect of shares held by the person; or
(d) an order that any exercise of rights attached to shares be
disregarded.
(3) Subsection (2) does not, by implication, limit subsection
(1).
(4) In addition to the Federal Court’s powers under subsections (1)
and (2), the court:
(a) has power, for the purpose of securing compliance with any other order
made under this section, to make an order directing any person to do or refrain
from doing a specified act; and
(b) has power to make an order containing such ancillary or consequential
provisions as the court thinks just.
(5) The Federal Court may, before making an order under this section,
direct that notice of the application be given to such persons as it thinks fit
or be published in such manner as it thinks fit, or both.
(6) The Federal Court may, by order, rescind, vary or discharge an order
made by it under this section or suspend the operation of such an
order.
For the purposes of this Act, an unacceptable airline-ownership
situation exists in relation to an airport-operator company and in
relation to a particular airline if the airline holds a particular type of stake
in the company of more than 5%.
Note: A person’s stake includes the
interests of the person’s associates—see the
Schedule.
If:
(a) a person, or 2 or more persons under an arrangement, acquire shares in
a company; and
(b) the acquisition has the result, in relation to an airport-operator
company, that:
(i) an unacceptable airline-ownership situation comes into existence in
relation to the company and in relation to an airline; or
(ii) if an unacceptable airline-ownership situation already exists in
relation to the company and in relation to an airline—there is an increase
in any type of stake held by the airline in the company; and
(c) the person or persons mentioned in paragraph (a) knew, or were
reckless as to whether, the acquisition would have that result;
the person or persons mentioned in paragraph (a) are guilty of an offence
punishable on conviction by a fine not exceeding 400 penalty units.
(1) An airport-operator company must take all reasonable steps to ensure
that an unacceptable airline-ownership situation does not exist in relation to
the company.
(2) A company that knowingly or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 500
penalty units.
(1) If an unacceptable airline-ownership situation exists in relation to
an airport-operator company, the Federal Court may, on application by the
Minister or the company, make such orders as the court considers appropriate for
the purpose of ensuring that that situation ceases to exist.
(2) The Federal Court’s orders include:
(a) an order directing the disposal of shares; or
(b) an order restraining the exercise of any rights attached to shares;
or
(c) an order prohibiting or deferring the payment of any sums due to a
person in respect of shares held by the person; or
(d) an order that any exercise of rights attached to shares be
disregarded.
(3) Subsection (2) does not, by implication, limit subsection
(1).
(4) In addition to the Federal Court’s powers under subsections (1)
and (2), the court:
(a) has power, for the purpose of securing compliance with any other order
made under this section, to make an order directing any person to do or refrain
from doing a specified act; and
(b) has power to make an order containing such ancillary or consequential
provisions as the court thinks just.
(5) The Federal Court may, before making an order under this section,
direct that notice of the application be given to such persons as it thinks fit
or be published in such manner as it thinks fit, or both.
(6) The Federal Court may, by order, rescind, vary or discharge an order
made by it under this section or suspend the operation of such an
order.
(1) An airport-operator company must ensure that the central management
and control of the company is ordinarily exercised at a place in
Australia.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Part 15.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) An airport-operator company must ensure that a majority of its
directors are:
(a) Australian citizens; or
(b) foreign citizens ordinarily resident in Australia.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Part 15.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) The regulations may make provision for and in relation to requiring a
person:
(a) to keep and retain records, where the records are relevant to an
ownership matter; and
(b) to give information to the Minister that is relevant to:
(i) an ownership matter; or
(ii) ascertaining whether Division 5 has been or is being complied with;
and
(c) to give information to an airport-operator company, where the
information is relevant to an ownership matter that concerns the
company.
Note: Ownership matter is defined by
subsection (6).
Statutory declarations
(2) The regulations may provide that information given in accordance with
a requirement covered by paragraph (1)(b) or (c) must be verified by statutory
declaration.
No self-incrimination
(3) An individual is not required to give information in accordance with a
requirement covered by paragraph (1)(b) or (c) if the information might tend to
incriminate the individual or expose the individual to a penalty.
Offence
(4) A person must not intentionally or recklessly contravene a requirement
covered by paragraph (1)(a), (b) or (c).
Penalty: 50 penalty units.
Regulations may confer discretionary powers on the
Minister
(5) Regulations made for the purposes of this section may make provision
for or in relation to a matter by conferring a power on the Minister. For
example, the regulations could provide that the Minister may, by written notice
given to an airport-operator company for an airport, require the company to give
the Minister, within the period and in the manner specified in the notice,
specified information about an ownership matter relating to the company.
Definition
(6) For the purposes of this section, each of the following matters is an
ownership matter:
(a) whether a person holds a particular type of stake in an
airport-operator company;
(b) if a person holds a particular type of stake in an airport-operator
company—the level of that stake.
It is the intention of the Parliament that this Part is not to apply to
the exclusion of a law of a State or Territory to the extent that that law is
capable of operating concurrently with this Part.
An act is not invalidated by the fact that it constitutes an offence
against this Part.
(1) The Federal Court must not make an order under this Part if:
(a) the order would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the order would be invalid because of paragraph 51(xxxi) of the
Constitution.
(2) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
The following is a simplified outline of this Part:
• This Part deals with schemes designed to
avoid:
(a) the rules about the leasing and management of airports; and
(b) the ownership restrictions that apply to airport-operator
companies.
Acquisition of assets
(1) If:
(a) one or more persons enter into, begin to carry out or carry out a
scheme; and
(b) it would be concluded that the person, or any of the persons, who
entered into, began to carry out or carried out the scheme or any part of the
scheme did so for the sole or dominant purpose of avoiding the application of
any provision of Part 2 or 3 in relation to any person or persons (whether or
not mentioned in paragraph (a)); and
(c) as a result of the scheme or a part of the scheme, a person (the
beneficiary) acquires any of the following assets:
(i) an airport lease or an interest in an airport lease;
(ii) a sublease of an airport lease;
(iii) a licence relating to an airport lease;
the Minister may give the beneficiary a written direction to dispose of the
asset within a specified time.
Acquisition of stake in airport-operator company
(2) If:
(a) one or more persons enter into, begin to carry out or carry out a
scheme; and
(b) it would be concluded that the person, or any of the persons, who
entered into, began to carry out or carried out the scheme or any part of the
scheme did so for the sole or dominant purpose of avoiding the application of
any provision of Part 2 or 3 in relation to any person or persons (whether or
not mentioned in paragraph (a)); and
(c) as a result of the scheme or a part of the scheme, a person (the
stakeholder) increases the stakeholder’s stake in an
airport-operator company;
the Minister may give the stakeholder a written direction to cease holding
that stake within a specified time.
Offence
(3) A person who intentionally contravenes a direction under subsection
(1) or (2) is guilty of an offence punishable on conviction by a fine not
exceeding 400 penalty units.
Definitions
(4) In this section:
increase, in relation to a stake in a company, includes an
increase from a starting point of nil.
stake, in relation to a company, has the same meaning as in
the Schedule.
(1) This section applies if:
(a) one or more persons enter into, begin to carry out or carry out a
scheme; and
(b) it would be concluded that the person, or any of the persons, who
entered into, began to carry out or carried out the scheme or any part of the
scheme did so for the sole or dominant purpose of avoiding the application of
any provision of Part 2 or 3 in relation to any person or persons (whether or
not mentioned in paragraph (a)); and
(c) as a result of the scheme or a part of the scheme, a person (the
contractor) enters into an airport-management agreement with the
airport-lessee company for an airport.
(2) The Minister may, by written notice given to the contractor and the
company, terminate the agreement with effect from a specified time.
The following is a simplified outline of this Part:
• For each airport, there is to be an airport
master plan.
• Major development plans will be required for
significant developments at airports.
• Building activities on airport sites will
require approval.
• Buildings and structures on airport sites
must be certified as fit for occupancy or use.
This Part applies to:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
The following is a simplified outline of this Division:
• For each airport, there is to be a final
master plan.
• A final master plan is a draft master plan
that has been approved by the Minister.
• A draft master plan is prepared by an
airport-lessee company after taking into account public comments.
• A final master plan is relevant to the
approval of major developments at the airport.
For each airport, there is to be a final master plan.
Note: A final master plan is a draft master
plan that has been approved by the Minister—see section
83.
(1) This section specifies the matters that must be set out in each draft
or final master plan for an airport.
Airports other than joint-user airports
(2) In the case of an airport other than a joint-user airport, a draft or
final master plan must specify:
(a) the airport-lessee company’s development objectives for the
airport; and
(b) the airport-lessee company’s assessment of the future needs of
civil aviation users of the airport, and other users of the airport, for
services and facilities relating to the airport; and
(c) the airport-lessee company’s proposals for land use and related
development of the airport site, where the proposals embrace airside, landside,
surface access and land planning/zoning aspects; and
(d) forecasts relating to noise exposure levels; and
(e) the airport-lessee company’s assessment of environmental issues
that might reasonably be expected to be associated with the implementation of
the plan; and
(f) such other matters (if any) as are specified in the
regulations.
Paragraphs (a), (b), (c), (d) and (e) do not, by implication, limit
paragraph (f).
Note 1: Airside means the part of the airport
grounds, and the part of the airport buildings, to which the non-travelling
public does not have free access.
Note 2: Landside means the part of the airport
grounds, and the part of the airport buildings, to which the non-travelling
public has free access.
Joint-user airports
(3) In the case of a joint-user airport, a draft or final master plan must
specify:
(a) the airport-lessee company’s development objectives for civil
use of the airport; and
(b) the airport-lessee company’s assessment of the future needs of
civil aviation users of the airport, and other civil users of the airport, for
services and facilities relating to the area of the airport site leased to the
company; and
(c) the airport-lessee company’s proposals for land use and related
development of the area of the airport site leased to the company, where the
proposals embrace:
(i) in all cases—landside, surface access and land planning/zoning
aspects; and
(ii) if the leased area includes one or more runways or
taxiways—airside aspects; and
(d) forecasts relating to the civil use of the airport; and
(e) the airport-lessee company’s assessment of environmental issues
that might reasonably be expected to be associated with the implementation of
the plan; and
(f) such other matters (if any) as are specified in the
regulations.
Paragraphs (a), (b), (c), (d) and (e) do not, by implication, limit
paragraph (f).
Note 1: Airside means the part of the airport
grounds, and the part of the airport buildings, to which the non-travelling
public does not have free access.
Note 2: Landside means the part of the airport
grounds, and the part of the airport buildings, to which the non-travelling
public has free access.
(4) The regulations may provide that the objectives, assessments,
proposals, forecasts and other matters covered by subsection (2) or (3) may
relate to either or both of the following:
(a) the whole of the planning period of the plan;
(b) one or more specified 5-year periods that are included in the planning
period of the plan.
Note: Planning period is defined by section
62.
(5) The regulations may provide that, in specifying a particular
objective, assessment, proposal, forecast or other matter covered by subsection
(2) or (3), a draft or final master plan must address such things as are
specified in the regulations.
(6) In specifying a particular objective or proposal covered by paragraph
(2)(a) or (c) or (3)(a) or (c), a draft or final master plan must address the
extent (if any) of consistency with planning schemes in force under a law of the
State or Territory in which the airport is located.
(7) Subsection (6) does not, by implication, limit subsection
(5).
A draft or final master plan must relate to a period of 20 years. This
period is called the planning period.
For the purposes of the application of this Division to a draft or final
master plan for an airport, it is to be assumed that the airport lease held by
the airport-lessee company will continue in force for the duration of the
planning period of the plan.
A draft or final master plan for an airport does not cease to be in force
if the airport lease is transferred. In that event, the transferee is taken to
have adopted the plan as its own.
(1) If:
(a) a company acquires or is granted an airport lease; and
(b) a final master plan for the airport is not in force at the time of the
acquisition or grant;
the company must give the Minister a draft master plan for the
airport:
(c) within 12 months after the acquisition or grant; or
(d) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) If a final master plan (the original plan) is in force
for an airport, the airport-lessee company must give the Minister a draft master
plan for the airport before the expiry of the original plan. The planning period
for the draft master plan must begin immediately after the expiry of the
original plan.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) A final master plan remains in force for 5 years. However, if, at the
end of that 5 years, a fresh final master plan does not come into force, the
original plan remains in force until a fresh plan comes into force.
(2) Subsection (1) has effect subject to section 68 (which deals with
replacement of plans).
(1) If a final master plan (the original plan) for an
airport is in force, the airport-lessee company for the airport may give the
Minister a draft master plan that is expressed to replace the original plan.
When the draft plan becomes a final master plan, the original plan ceases to be
in force.
(2) If a final master plan (the original plan) for an
airport is in force, the Minister may, by written notice given to the
airport-lessee company for the airport, direct the company to give the Minister
a draft master plan that is expressed to replace the original plan. The company
must comply with the direction:
(a) if the draft master plan is exempt from sections 69 and
70—within 180 days after the day on which the notice was given;
or
(b) if the draft master plan is not exempt from sections 69 and
70—within 270 days after the day on which the notice was given;
or
(c) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
When the draft plan becomes a final master plan, the original plan ceases
to be in force.
(3) A company that intentionally or recklessly contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) Before giving the Minister a draft master plan for an airport under
section 65, 66 or 68, the airport-lessee company for the airport must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the company has prepared a preliminary version of the
draft plan; and
(ii) stating that copies of the preliminary version will be available for
inspection and purchase by members of the public during normal office hours
throughout the period of 90 days after the publication of the notice;
and
(iii) specifying the place or places where the copies will be available
for inspection and purchase; and
(iv) inviting members of the public to give written comments about the
preliminary version to the company within 90 days after the publication of the
notice; and
(b) make copies of the preliminary version available for inspection and
purchase by members of the public in accordance with the notice.
(2) If members of the public have given written comments about the
preliminary version in accordance with the notice, the draft plan submitted to
the Minister must be accompanied by a written certificate signed on behalf of
the company:
(a) listing the names of those members of the public; and
(b) summarising those comments; and
(c) stating that the company has had due regard to those comments in
preparing the draft plan; and
(d) setting out such other information (if any) about those comments as is
specified in the regulations.
(3) Subsection (2) does not, by implication, limit the matters to which
the company may have regard.
(4) This section has effect subject to section 71 (which deals with
exemptions for draft plans given to the Minister under section 68).
(1) This section applies if:
(a) an airport-lessee company gives the Minister a draft master plan under
section 65, 66 or 68; and
(b) before the publication under section 69 of a notice about the plan,
the company consulted a person covered by any of the following
subparagraphs:
(i) a State or Territory government;
(ii) an authority of a State or Territory;
(iii) a local government body;
(iv) an airline or other user of the airport concerned;
(v) any other person.
(2) The draft plan submitted to the Minister must be accompanied by a
written statement signed on behalf of the company:
(a) listing the names of the persons consulted; and
(b) summarising the views expressed by the persons consulted.
(3) This section has effect subject to section 71 (which deals with
exemptions for draft plans given to the Minister under section 68).
(1) This section applies to a draft master plan that is to be given to the
Minister under section 68 by a company.
(2) The Minister may, by written notice given to the company, exempt the
draft plan from sections 69 and 70.
(1) This section applies if an airport-lessee company gives the Minister a
draft master plan.
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard
to the following matters:
(a) the extent to which carrying out the plan would meet present and
future requirements of civil aviation users of the airport, and other users of
the airport, for services and facilities relating to the airport
concerned;
(b) the effect that carrying out the plan would be likely to have on the
use of land:
(i) within the airport site concerned; and
(ii) in areas surrounding the airport;
(c) the consultations undertaken in preparing the plan (including the
outcome of the consultations);
(d) the views of the Civil Aviation Safety Authority and Airservices
Australia, in so far as they relate to safety aspects and operational aspects of
the plan.
(4) Subsection (3) does not, by implication, limit the matters to which
the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the plan
before the end of the period of 90 days after the day on which the Minister
received the draft plan, the Minister is taken, at the end of that period, to
have approved the plan under subsection (2).
(6) As soon as practicable after deciding whether to approve the plan, the
Minister must notify the company in writing of the decision.
(7) If the Minister refuses to approve the plan, the Minister must notify
the company in writing of the Minister’s reasons for the
refusal.
(8) If the Minister refuses to approve the plan, the Minister may, by
written notice given to the company, direct the company to give the Minister a
fresh draft master plan. The fresh draft master plan must be given to the
Minister:
(a) within 180 days after the day on which the direction was given;
or
(b) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(9) A company that intentionally or recklessly contravenes subsection (8)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) This section applies if:
(a) an airport lease is transferred; and
(b) before the transfer, a draft master plan had been submitted by the
transferor to the Minister; and
(c) immediately before the transfer, the Minister had not made a decision
whether to approve the draft plan.
(2) The transferee is taken:
(a) to have given the draft plan to the Minister immediately after the
transfer; and
(b) to have adopted the draft plan as its own;
unless, within 60 days after the transfer, the transferee gives the
Minister a written undertaking to give the Minister an alternative draft plan.
If the Minister approves a draft master plan, the plan becomes a final
master plan. The final master plan comes into force at the time of the
approval.
(1) This section applies if:
(a) a final master plan for an airport is in force; and
(b) the airport-lessee company for the airport gives the Minister a draft
variation of the plan; and
(c) the variation is of a minor nature.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) If the Minister neither approves, nor refuses to approve, the
variation before the end of the period of 90 days after the day on which the
Minister received the draft variation, the Minister is taken, at the end of that
period, to have approved the variation under subsection (2).
(4) As soon as practicable after deciding whether to approve the
variation, the Minister must notify the company in writing of the
decision.
(5) If the Minister refuses to approve the variation, the Minister must
notify the company in writing of the Minister’s reasons for the
refusal.
(6) If the Minister approves the variation, the plan is varied
accordingly.
(1) If:
(a) a final master plan for an airport is in force; and
(b) the airport-lessee company for the airport becomes aware that a
particular matter may significantly affect the achievement of the
plan;
the company must, within 60 days after it becomes aware of that matter,
give the Minister a written notice:
(c) setting out particulars of the matter; and
(d) explaining the effect of the matter on the achievement of the
plan.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(1) This section applies if:
(a) the Minister approves a draft master plan for an airport; or
(b) the Minister approves a draft variation of a final master plan for an
airport.
(2) The airport-lessee company for the airport must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the plan or variation has been approved; and
(ii) stating that copies of the plan or variation will be available for
inspection and purchase by members of the public during normal office hours
while the plan remains in force; and
(iii) specifying the place or places where the plan or variation will be
available for inspection and purchase; and
(b) make the plan or variation available for inspection and purchase by
members of the public in accordance with the notice.
The company must comply with this subsection:
(c) within 90 days after the approval of the plan or variation, as the
case requires; or
(d) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(3) A company that intentionally or recklessly contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) A draft or final master plan for an airport may make provision for or
in relation to a matter by applying, adopting or incorporating (with or without
modification) any matter contained in a document that:
(a) relates to the airport; and
(b) was prepared for or by the Federal Airports Corporation when the
airport was a Federal airport, or a Federal airport development site, within the
meaning of the Federal Airports Corporation Act 1986.
Note: All draft and final master plans must comply with the
content rules set out in sections 61 and 62.
(2) If subsection (1) applies to a draft master plan, the plan must be
accompanied by the document when:
(a) the plan is given to the Minister under this Division; or
(b) a preliminary version of the plan is made available for inspection and
purchase under section 69.
(3) If subsection (1) applies to a final master plan, the plan must be
accompanied by the document when the plan is made available for inspection and
purchase under section 77.
The following is a simplified outline of this Division:
• A major development plan is required for each
major development at an airport.
• A major development plan is prepared by the
airport-lessee company taking into account public comments.
(1) For the purposes of this Division, a major airport
development is a development that is carried out at an airport site and
that consists of:
(a) constructing a new runway; or
(b) extending the length of a runway; or
(c) constructing a new building wholly or principally for use as a
passenger terminal, where the building’s gross floor space is greater than
500 square metres; or
(d) extending a building that is wholly or principally for use as a
passenger terminal, where the extension increases the building’s gross
floor space by more than 10%; or
(e) constructing a new building, where:
(i) the building is not wholly or principally for use as a passenger
terminal; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(f) constructing a new taxiway, where:
(i) the construction significantly increases the capacity of the airport
to handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(g) extending a taxiway, where:
(i) the extension significantly increases the capacity of the airport to
handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(h) constructing a new road or new vehicular access facility,
where:
(i) the construction significantly increases the capacity of the airport
to handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(j) extending a road or vehicular access facility, where:
(i) the extension significantly increases the capacity of the airport to
handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(k) constructing a new railway or new rail handling facility,
where:
(i) the construction significantly increases the capacity of the airport
to handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(l) extending a railway or rail handling facility, where:
(i) the extension significantly increases the capacity of the airport to
handle movements of passengers, freight or aircraft; and
(ii) the cost of construction exceeds $10 million or such higher amount as
is prescribed; or
(m) a development of a kind specified in the regulations.
(2) Paragraphs (1)(a), (b), (c), (d), (e), (f), (g), (h), (j), (k) and (l)
do not, by implication, limit paragraph (1)(m).
(3) For the purposes of subsection (1), if:
(a) the parties to a transaction do not deal with each other at
arm’s length in relation to the transaction; and
(b) a cost arising out of that transaction is less than is
reasonable;
the amount of that cost is taken to be the amount of the cost that would
have arisen if the parties had dealt with each other at arm’s
length.
(1) An airport-lessee company for an airport must not:
(a) carry out a major airport development relating to the airport;
or
(b) cause or permit to be carried out a major airport development relating
to the airport;
unless:
(c) the carrying out of the development is in accordance with a major
development plan approved under this Division; or
(d) the development is of a kind declared by the regulations to be exempt
from this Division.
(2) If:
(a) a major airport development plan in relation to an airport is approved
under this Division; and
(b) the approval is subject to a condition that applies to the
airport-lessee company for the airport;
the company must comply with the condition.
(3) A company that intentionally or recklessly contravenes subsection (1)
or (2) is guilty of an offence punishable on conviction by a fine not exceeding
250 penalty units.
(4) A person (other than an airport-lessee company) must not:
(a) carry out a major airport development relating to an airport;
or
(b) cause or permit to be carried out a major airport development relating
to an airport;
unless:
(c) the carrying out of the development is in accordance with a major
development plan approved under this Division; or
(d) the development is of a kind declared by the regulations to be exempt
from this Division.
(5) If:
(a) a major airport development plan in relation to an airport is approved
under this Division; and
(b) the approval is subject to a condition that applies to a person (other
than the airport-lessee company for the airport);
the person must comply with the condition.
(6) A person who intentionally or recklessly contravenes subsection (4) or
(5) is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) A major development plan, or a draft of such a plan, must set
out:
(a) the airport-lessee company’s objectives for the development;
and
(b) the airport-lessee company’s assessment of the extent to which
the future needs of civil aviation users of the airport, and other users of the
airport, will be met by the development; and
(c) a detailed outline of the development; and
(d) if a final master plan for the airport is in force—whether or
not the development is consistent with the final master plan; and
(e) if the development could affect noise exposure levels at the
airport—the effect that the development would be likely to have on those
levels; and
(f) an outline of the approvals that the airport-lessee company, or any
other person, has sought, is seeking or proposes to seek under Division 5 or
Part 12 in respect of elements of the development; and
(g) the airport-lessee company’s assessment of the environmental
impacts that might reasonably be expected to be associated with the development;
and
(h) such other matters (if any) as are specified in the
regulations.
(2) Paragraphs (1)(a) to (g) (inclusive) do not, by implication, limit
paragraph (1)(h).
(3) The regulations may provide that, in specifying a particular
objective, assessment, outline or other matter covered by subsection (1), a
major development plan, or a draft of such a plan, must address such things as
are specified in the regulations.
(4) In specifying a particular objective or proposal covered by paragraph
(1)(a) or (c), a major development plan, or a draft of such a plan, must address
the extent (if any) of consistency with planning schemes in force under a law of
the State or Territory in which the airport is located.
(5) Subsection (4) does not, by implication, limit subsection
(3).
(1) Before giving the Minister a draft major development plan, the
airport-lessee company concerned must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the company has prepared a draft version of the plan;
and
(ii) stating that copies of the draft version will be available for
inspection and purchase by members of the public during normal office hours
throughout the period of 90 days after the publication of the notice;
and
(iii) specifying the place or places where the copies will be available
for inspection and purchase; and
(iv) inviting members of the public to give written comments about the
draft version to the company within 90 days after the publication of the notice;
and
(b) make copies of the draft version available for inspection and purchase
by members of the public in accordance with the notice.
(2) If members of the public have given written comments about the draft
version in accordance with the notice, the draft plan submitted to the Minister
must be accompanied by a written certificate signed on behalf of the
company:
(a) listing the names of those members of the public; and
(b) summarising those comments; and
(c) stating that the company has had due regard to those comments in
preparing the draft plan; and
(d) setting out such other information (if any) about those comments as is
specified in the regulations.
(3) Subsection (2) does not, by implication, limit the matters to which
the company may have regard.
(1) This section applies if:
(a) an airport-lessee company gives the Minister a draft major development
plan; and
(b) before the publication under section 83 of a notice about the plan,
the company consulted a person covered by any of the following
subparagraphs:
(i) a State or Territory government;
(ii) an authority of a State or Territory;
(iii) a local government body;
(iv) an airline or other user of the airport concerned;
(v) any other person.
(2) The draft major development plan submitted to the Minister must be
accompanied by a written statement signed on behalf of the company:
(a) listing the names of the persons consulted; and
(b) summarising the views expressed by the persons consulted.
(1) This section applies if an airport-lessee company gives the Minister a
draft major development plan.
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard
to the following matters:
(a) the extent to which carrying out the plan would meet the future needs
of civil aviation users of the airport, and other users of the airport, for
services and facilities relating to the airport;
(b) the effect that carrying out the plan would be likely to have on the
future operating capacity of the airport;
(c) the impact that carrying out the plan would be likely to have on the
environment;
(d) the consultations undertaken in preparing the plan (including the
outcome of the consultations);
(e) the views of the Civil Aviation Safety Authority and Airservices
Australia, in so far as they relate to safety aspects and operational aspects of
the plan.
(4) Subsection (3) does not, by implication, limit the matters to which
the Minister may have regard.
(5) If a final master plan is in force for the airport, the Minister must
not approve the draft major development plan unless it is consistent with the
final master plan.
(6) If the Minister neither approves, nor refuses to approve, the draft
major development plan before the end of the period of 90 days after the day on
which the Minister received the draft plan, the Minister is taken, at the end of
that period, to have approved the plan under subsection (2).
(7) The Minister may approve the draft major development plan subject to
one or more conditions.
(8) As soon as practicable after deciding whether to approve the draft
major development plan, the Minister must notify the company in writing of the
decision.
(9) If the Minister refuses to approve the draft major development plan,
the Minister must notify the company in writing of the Minister’s reasons
for the refusal.
(10) The regulations may provide for fees to be payable in respect of the
lodgment of a draft plan under subsection (1).
(1) This section applies if:
(a) a major development plan for an airport has been approved by the
Minister; and
(b) the airport-lessee company for the airport gives the Minister a draft
variation of the plan; and
(c) the variation is of a minor nature.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) If the Minister neither approves, nor refuses to approve, the
variation before the end of the period of 90 days after the day on which the
Minister received the draft variation, the Minister is taken, at the end of that
period, to have approved the variation under subsection (2).
(4) As soon as practicable after deciding whether to approve the
variation, the Minister must notify the company in writing of the
decision.
(5) If the Minister refuses to approve the variation, the Minister must
notify the company in writing of the Minister’s reasons for the
refusal.
(6) If the Minister approves the variation, the plan is varied
accordingly.
(1) This section applies if:
(a) the Minister approves a draft major development plan for an airport;
or
(b) the Minister approves a draft variation of a major development plan
for an airport.
(2) The airport-lessee company for the airport must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the plan or variation has been approved; and
(ii) stating that copies of the plan or variation will be available for
inspection and purchase by members of the public during normal office hours for
180 days after the publication of the notice; and
(iii) specifying the place or places where the plan or variation will be
available for inspection and purchase; and
(b) make the plan or variation available for inspection and purchase by
members of the public in accordance with the notice.
The company must comply with this subsection:
(c) within 90 days after the approval of the plan or variation, as the
case may be; or
(d) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(3) A company that intentionally or recklessly contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
The following is a simplified outline of this Division:
• Building activities on airport sites require
approval. Approvals are given under the regulations.
• Buildings and structures on airport sites
must be certified as fit for occupancy or use. Certificates are issued under the
regulations.
Building activities
(1) For the purposes of this Division, the following activities are
building activities:
(a) constructing buildings or other structures;
(b) altering the structure of buildings or other structures;
(c) undertaking, constructing or altering earthworks (whether or not in
relation to buildings or other structures);
(d) undertaking, constructing or altering engineering works, electrical
works or hydraulic works (whether or not in relation to buildings or other
structures);
(e) demolishing, destroying, dismantling or removing:
(i) buildings or other structures; or
(ii) earthworks; or
(iii) engineering works; or
(iv) electrical works; or
(v) hydraulic works.
Structures
(2) For the purposes of this Division, the following are taken to be
structures:
(a) bridges;
(b) fences;
(c) towers and pylons;
(d) tents and other temporary structures.
Earthworks or engineering works
(3) For the purposes of this Division, the following are taken to be
earthworks or engineering works:
(a) runways, taxiways and aprons;
(b) surface carparks;
(c) retaining walls;
(d) dams;
(e) roads;
(f) railways;
(g) pipelines;
(h) tunnels.
Contravention by an airport-lessee company
(1) An airport-lessee company for an airport must not:
(a) carry out a building activity on the airport site; or
(b) cause or permit to be carried out on the airport site a building
activity;
unless:
(c) carrying out the activity is in accordance with an approval granted
under regulations made for the purposes of this Subdivision; or
(d) all of the following conditions are satisfied:
(i) the activity is of a kind declared by the regulations to be exempt
from this Subdivision;
(ii) in a case where a final master plan is in force for the
airport—the activity is consistent with the plan;
(iii) in a case where the building activity is an element of a major
airport development (within the meaning of Division 4) and a major development
plan is in force for that development—the activity is consistent with the
plan.
Offence
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
Contravention by a person other than an airport-lessee
company
(3) A person other than an airport-lessee company must not:
(a) carry out a building activity on an airport site; or
(b) cause or permit to be carried out on an airport site a building
activity;
unless:
(c) carrying out the activity is in accordance with an approval granted
under regulations made for the purposes of this Subdivision; or
(d) all of the following conditions are satisfied:
(i) the activity is of a kind declared by the regulations to be exempt
from this Subdivision;
(ii) in a case where a final master plan is in force for the
airport—the activity is consistent with the plan;
(iii) in a case where the building activity is an element of a major
airport development (within the meaning of Division 4) and a major development
plan is in force for that development—the activity is consistent with the
plan.
Offence
(4) A person who intentionally or recklessly contravenes subsection (3) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) The regulations may make provision for and in relation to the
following:
(a) the grant of approvals authorising building activities to be carried
out on airport sites;
(b) conditions of such approvals;
(c) revocation, variation or surrender of such approvals;
(d) fees in respect of applications for such approvals;
(e) in a case where an airport lease is transferred—the transfer of
such an approval to the transferee.
(2) Regulations made for the purposes of subsection (1) may make provision
for or in relation to a matter by applying, adopting or incorporating (with or
without modification) any matter contained in:
(a) the Building Code of Australia; or
(b) the Building Code of Australia as it applies in a particular State or
Territory; or
(c) a law of a State or Territory; or
(d) a standard proposed or approved by the Standards Association of
Australia;
as in force or existing from time to time.
(3) A condition prescribed under paragraph (1)(b) may relate to the
carrying out of one or more inspections.
(4) Subsection (3) does not, by implication, limit the operation of
paragraph (1)(b).
(5) The regulations may provide that approvals must not be granted in
respect of particular kinds of building activity.
(1) This section applies to an approval of a building activity, where the
approval is granted under regulations made for the purposes of this
Subdivision.
(2) If a final master plan is in force for the airport concerned, the
approval must not be granted unless it is consistent with the plan.
(3) If:
(a) the building activity is an element of a major airport development
(within the meaning of Division 4); and
(b) a major development plan is in force for that development;
the approval must not be granted unless it is consistent with the
plan.
If an approval was granted to a person under regulations made for the
purposes of this Subdivision, the person must not, whether before or after
completion of the building activity concerned, intentionally or recklessly
contravene a condition of the approval.
Penalty: 50 penalty units.
(1) If:
(a) a building activity is carried out on an airport site; and
(b) subsection (4) does not apply to the activity; and
(c) either:
(i) the activity was not authorised by an approval granted under the
regulations; or
(ii) if such an approval was granted in relation to the activity—a
condition of the approval was contravened;
an authorised person may give another person a written direction requiring
the other person:
(d) to stop work on; or
(e) to carry out remedial work on; or
(f) to demolish, dismantle or remove;
the building, structure, earthworks, engineering works, electrical works or
hydraulic works concerned.
(2) An authorised person must not give another person a direction under
this section unless the other person is:
(a) an airport-operator company for the airport concerned; or
(b) a person who carried out the building activity concerned; or
(c) a person who arranged for the carrying out of the building activity
concerned.
(3) A person must not intentionally or recklessly contravene a direction
under this section.
Penalty: 50 penalty units.
(4) This subsection applies to a building activity if all of the following
conditions are satisfied:
(a) the activity is of a kind declared by the regulations to be exempt
from this Subdivision;
(b) in a case where a final master plan is in force for the
airport—the activity is consistent with the plan;
(c) in a case where the building activity is an element of a major airport
development (within the meaning of Division 4) and a major development plan is
in force for that development—the activity is consistent with the
plan.
(5) In this section:
authorised person means:
(a) the Secretary to the Department; or
(b) a person authorised in writing by the Secretary to the Department for
the purposes of this section.
For the purposes of this Subdivision, a certificate of
fitness is a certificate certifying that a building, structure,
earthworks, engineering works, electrical works, hydraulic works or eligible
alteration specified in the certificate is fit for occupancy or use.
For the purposes of this Subdivision, the following are eligible
alterations:
(a) alterations of the structure of a building or other structure;
(b) alterations of earthworks, engineering works, electrical works or
hydraulic works (whether or not in relation to buildings or other
structures).
(1) An airport-lessee company for an airport must not:
(a) occupy or use a building, structure, earthworks, engineering works,
electrical works, hydraulic works or eligible alteration on the airport site;
or
(b) cause or permit a building, structure, earthworks, engineering works,
electrical works, hydraulic works or eligible alteration on the airport site to
be occupied or used;
unless:
(c) a certificate of fitness for the building, structure, earthworks,
engineering works, electrical works, hydraulic works or eligible alteration, as
the case requires, is in force under regulations made for the purposes of this
Subdivision; or
(d) if the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration, as the case may be, was completed
before the time when an airport lease for the airport was granted under the
Airports (Transitional) Act 1996—a certificate of fitness or a
similar document was issued before that time in respect of the building,
structure, earthworks, engineering works, electrical works, hydraulic works or
eligible alteration, as the case requires, by:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority of the Commonwealth, a State or a Territory;
or
(iii) a local government body; or
(e) the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration, as the case requires, is of a
kind declared by the regulations to be exempt from this Subdivision.
(2) Paragraphs (1)(c) and (d) do not, by implication, limit paragraph
(1)(e).
(3) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(4) A person who is the sub-lessee of an airport lease for an airport must
not:
(a) occupy or use a building, structure, earthworks, engineering works,
electrical works, hydraulic works or eligible alteration on the airport site;
or
(b) cause or permit a building, structure, earthworks, engineering works,
electrical works, hydraulic works or eligible alteration on the airport site to
be occupied or used;
unless:
(c) a certificate of fitness for the building, structure, earthworks,
engineering works, electrical works, hydraulic works or eligible alteration, as
the case requires, is in force under regulations made for the purposes of this
Subdivision; or
(d) if the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration, as the case may be, was completed
before the time when an airport lease for the airport was granted under the
Airports (Transitional) Act 1996—a certificate of fitness or a
similar document was issued before that time in respect of the building,
structure, earthworks, engineering works, electrical works, hydraulic works or
eligible alteration, as the case requires, by:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority of the Commonwealth, a State or a Territory;
or
(iii) a local government body; or
(e) the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration, as the case requires, is of a
kind declared by the regulations to be exempt from this Subdivision.
(5) Paragraphs (4)(c) and (d) do not, by implication, limit paragraph
(4)(e).
(6) A person who intentionally or recklessly contravenes subsection (4) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) The regulations may make provision for and in relation to the
following:
(a) the issue of certificates of fitness;
(b) conditions of certificates of fitness;
(c) revocation, variation or surrender of certificates of
fitness;
(d) fees in respect of applications for certificates of fitness;
(e) in a case where an airport lease is transferred—the transfer of
a certificate of fitness to the transferee.
(2) Regulations made for the purposes of subsection (1) may make provision
for or in relation to a matter by applying, adopting or incorporating (with or
without modification) any matter contained in:
(a) the Building Code of Australia; or
(b) the Building Code of Australia as it applies in a particular State or
Territory; or
(c) a law of a State or Territory; or
(d) a standard proposed or approved by the Standards Association of
Australia;
as in force or existing from time to time.
(3) A condition prescribed under paragraph (1)(b) may relate to the
carrying out of one or more inspections.
(4) Subsection (3) does not, by implication, limit the operation of
paragraph (1)(b).
(5) The regulations may provide that certificates of fitness must not be
issued for particular kinds of buildings, structures, earthworks, engineering
works, electrical works, hydraulic works or eligible alterations.
If a certificate of fitness was issued to a person under regulations made
for the purposes of this Subdivision, the person must not, whether before or
after the building, structure, earthworks, engineering works, electrical works,
hydraulic works or eligible alteration concerned is first occupied or used,
intentionally or recklessly contravene a condition of the certificate.
Penalty: 50 penalty units.
(1) If:
(a) a building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration at an airport site is occupied or
used; and
(b) the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration is not of a kind declared by the
regulations to be exempt from this Subdivision; and
(c) either:
(i) a certificate of fitness issued under regulations made for the
purposes of this Subdivision is not in force in relation to the building,
structure, earthworks, engineering works, electrical works, hydraulic works or
eligible alteration, as the case requires; or
(ii) if such a certificate is in force in relation to the building,
structure, earthworks, engineering works, electrical works, hydraulic works or
eligible alteration, as the case requires—a condition of the certificate
is contravened;
an authorised person may give another person a written direction requiring
the other person:
(d) to cease to occupy or use; or
(e) to carry out remedial work on; or
(f) to demolish, dismantle or remove;
the building, structure, earthworks, engineering works, electrical works,
hydraulic works or eligible alteration concerned.
(2) An authorised person must not give another person a direction under
this section unless the other person is:
(a) an airport-operator company for the airport concerned; or
(b) a person who is occupying or using, or is proposing to occupy or use,
the building, structure, earthworks, engineering works, electrical works,
hydraulic works or eligible alteration concerned; or
(c) a person who has caused or permitted, or is proposing to cause or
permit, the building, structure, earthworks, engineering works, electrical
works, hydraulic works or eligible alteration concerned to be occupied or
used.
(3) A person must not intentionally or recklessly contravene a direction
under this section.
Penalty: 50 penalty units.
(4) In this section:
authorised person means:
(a) the Secretary to the Department; or
(b) a person authorised in writing by the Secretary to the Department for
the purposes of this section.
(1) This section applies to a building, structure, earthworks, engineering
works, electrical works, hydraulic works or eligible alteration on an airport
site that was completed before the time when an airport lease for the airport
was granted under the Airports (Transitional) Act 1996.
(2) Sections 97, 99 and 100 do not apply in relation to the building,
structure, earthworks, engineering works, electrical works, hydraulic works or
eligible alteration, as the case requires, throughout the 180-day period
beginning when the lease is granted.
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against this Part to pay a penalty to the Commonwealth
as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
(1) It is the intention of the Parliament that this Part is to apply to
the exclusion of a law of a State or Territory.
(2) In particular, it is the intention of the Parliament that this Part is
to apply to the exclusion of a law of a State or Territory relating
to:
(a) land use planning; or
(b) the regulation of building activities (within the meaning of Division
5).
The following is a simplified outline of this Part:
• For each airport, there is to be a final
environment strategy.
• A final environment strategy is a draft
environment strategy that has been approved by the Minister.
• A draft environment strategy is prepared by
an airport-lessee company after taking into account public comments.
• The regulations may deal with environmental
standards at airport sites.
This Division applies to:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
For each airport, there is to be a final environment strategy.
Note: A final environment strategy is a draft
environment strategy that has been approved by the Minister—see section
120.
(1) This section specifies the matters that must be set out in each draft
or final environment strategy for an airport.
Airports other than joint-user airports
(2) In the case of an airport other than a joint-user airport, a draft or
final environment strategy must specify:
(a) the airport-lessee company’s objectives for the environmental
management of the airport; and
(b) the sources of environmental impact associated with airport
operations; and
(c) the studies, reviews and monitoring to be carried out by the
airport-lessee company in connection with the environmental impact associated
with airport operations; and
(d) the time frames for completion of those studies and reviews and for
reporting on that monitoring; and
(e) the specific measures to be carried out by the airport-lessee company
for the purposes of preventing, controlling or reducing the environmental impact
associated with airport operations; and
(f) the time frames for completion of those specific measures;
and
(g) details of the consultations undertaken in preparing the strategy
(including the outcome of the consultations); and
(h) such other matters (if any) as are specified in the
regulations.
Paragraphs (a) to (g) (inclusive) do not, by implication, limit paragraph
(h).
Joint-user airports
(3) In the case of a joint-user airport, a draft or final environment
strategy must specify:
(a) the airport-lessee company’s objectives for the environmental
management of the area of the airport site leased to the company; and
(b) the sources of environmental impact associated with civil aviation
operations at the airport; and
(c) the studies, reviews and monitoring to be carried out by the
airport-lessee company in connection with the environmental impact associated
with civil aviation operations at the airport; and
(d) the time frames for completion of those studies and reviews and for
reporting on that monitoring; and
(e) the specific measures to be carried out by the airport-lessee company
for the purposes of preventing, controlling or reducing the environmental impact
associated with civil aviation operations at the airport; and
(f) the time frames for completion of those specific measures;
and
(g) details of the consultations undertaken in preparing the strategy
(including the outcome of the consultations); and
(h) such other matters (if any) as are specified in the
regulations.
Paragraphs (a) to (g) (inclusive) do not, by implication, limit paragraph
(h).
(4) The regulations may provide that the matters covered by subsection (2)
or (3) may relate to either or both of the following:
(a) the whole of the strategy period for the strategy;
(b) one or more specified 12-month periods included in the strategy period
for the strategy.
Note: Strategy period is defined by section
108.
(5) The regulations may provide that, in specifying a particular matter
covered by subsection (2) or (3), a draft or final environment strategy must
address such things as are specified in the regulations.
A draft or final environment strategy must relate to a period of 5 years.
This period is called the strategy period.
For the purposes of the application of this Division to a draft or final
environment strategy for an airport, it is to be assumed that the airport lease
held by the airport-lessee company will continue in force for the duration of
the strategy period for the strategy.
A draft or final environment strategy for an airport does not cease to be
in force if the airport lease is transferred. In that event, the transferee is
taken to have adopted the strategy as its own.
(1) If:
(a) a company acquires or is granted an airport lease; and
(b) a final environment strategy for the airport is not in force at the
time of the acquisition or grant;
the company must give the Minister a draft environment strategy for the
airport:
(c) within 12 months after the acquisition or grant; or
(d) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) If a final environment strategy (the original strategy)
is in force for an airport, the airport-lessee company must give the Minister a
draft environment strategy for the airport before the expiry of the original
strategy. The strategy period for the draft strategy must begin immediately
after the expiry of the original strategy.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) A final environment strategy remains in force for 5 years. However,
if, at the end of that 5 years, a fresh final environment strategy does not come
into force, the original strategy remains in force until a fresh strategy comes
into force.
(2) Subsection (1) has effect subject to section 114 (which deals with
replacement of strategies).
(1) If a final environment strategy (the original strategy)
for an airport is in force, the airport-lessee company for the airport may give
the Minister a draft environment strategy that is expressed to replace the
original strategy. When the draft strategy becomes a final environment strategy,
the original strategy ceases to be in force.
(2) If a final environment strategy (the original strategy)
for an airport is in force, the Minister may, by written notice given to the
airport-lessee company for the airport, direct the company to give the Minister
a draft environment strategy that is expressed to replace the original strategy.
The company must comply with the direction:
(a) if the draft environment strategy is exempt from sections 115 and
116—within 180 days after the day on which the notice was given;
or
(b) if the draft environment strategy is not exempt from sections 115 and
116—within 270 days after the day on which the notice was given;
or
(c) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
When the draft strategy becomes a final environment strategy, the original
strategy ceases to be in force.
(3) A company that intentionally or recklessly contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) Before giving the Minister a draft environment strategy for an airport
under section 111, 112 or 114, the airport-lessee company for the airport
must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the company has prepared a preliminary version of the
draft strategy; and
(ii) stating that copies of the preliminary version will be available for
inspection and purchase by members of the public during normal office hours
throughout the period of 90 days after the publication of the notice;
and
(iii) specifying the place or places where the copies will be available
for inspection and purchase; and
(iv) inviting members of the public to give written comments about the
preliminary version to the company within 90 days after the publication of the
notice; and
(b) make copies of the preliminary version available for inspection and
purchase by members of the public in accordance with the notice.
(2) If members of the public have given written comments about the
preliminary version in accordance with the notice, the draft strategy submitted
to the Minister must be accompanied by a written certificate signed on behalf of
the company:
(a) listing the names of those members of the public; and
(b) summarising those comments; and
(c) stating that the company has had due regard to those comments in
preparing the draft strategy; and
(d) setting out such other information (if any) about those comments as is
specified in the regulations.
(3) Subsection (2) does not, by implication, limit the matters to which
the company may have regard.
(4) This section has effect subject to section 117 (which deals with
exemptions for draft strategies given to the Minister under section
114).
(1) This section applies if:
(a) an airport-lessee company gives the Minister a draft environment
strategy under section 111, 112 or 114; and
(b) before the publication under section 115 of a notice about the
strategy, the company consulted a person covered by any of the following
subparagraphs:
(i) a State or Territory government;
(ii) an authority of a State or Territory;
(iii) a local government body;
(iv) an airline or other user of the airport concerned;
(v) any other person.
(2) The draft strategy submitted to the Minister must be accompanied by a
written statement signed on behalf of the company:
(a) listing the names of the persons consulted; and
(b) summarising the views expressed by the persons consulted.
(3) This section has effect subject to section 117 (which deals with
exemptions for draft strategies given to the Minister under section
114).
(1) This section applies to a draft environment strategy that is to be
given to the Minister under section 114 by a company.
(2) The Minister may, by written notice given to the company, exempt the
draft strategy from sections 115 and 116.
(1) This section applies if an airport-lessee company gives the Minister a
draft environment strategy.
(2) The Minister must:
(a) approve the strategy; or
(b) refuse to approve the strategy.
(3) In deciding whether to approve the strategy, the Minister must have
regard to the following matters:
(a) the effect that carrying out the strategy would be likely to have on
the standard of air quality, water quality and soil quality;
(b) the effect that carrying out the strategy would be likely to have on
noise exposure levels;
(c) details of the consultations undertaken in preparing the strategy
(including the outcome of the consultations).
(4) Subsection (3) does not, by implication, limit the matters to which
the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the strategy
before the end of the period of 90 days after the day on which the Minister
received the draft strategy, the Minister is taken, at the end of that period,
to have approved the strategy under subsection (2).
(6) As soon as practicable after deciding whether to approve the strategy,
the Minister must notify the company in writing of the decision.
(7) If the Minister refuses to approve the strategy, the Minister must
notify the company in writing of the Minister’s reasons for the
refusal.
(8) If the Minister refuses to approve the strategy, the Minister may, by
written notice given to the company, direct the company to give the Minister a
fresh draft environment strategy. The fresh draft environment strategy must be
given to the Minister:
(a) within 180 days after the day on which the direction was given;
or
(b) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(9) A company that intentionally or recklessly contravenes subsection (8)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) This section applies if:
(a) an airport lease is transferred; and
(b) before the transfer, a draft environment strategy had been submitted
by the transferor to the Minister; and
(c) immediately before the transfer, the Minister had not made a decision
whether to approve the draft strategy.
(2) The transferee is taken:
(a) to have given the draft strategy to the Minister immediately after the
transfer; and
(b) to have adopted the draft strategy as its own;
unless, within 60 days after the transfer, the transferee gives the
Minister a written undertaking to give the Minister an alternative draft
strategy.
If the Minister approves a draft environment strategy, the strategy
becomes a final environment strategy. The final strategy comes into force at the
time of the approval.
(1) This section applies if:
(a) a final environment strategy for an airport is in force; and
(b) the airport-lessee company for the airport gives the Minister a draft
variation of the strategy; and
(c) the variation is of a minor nature.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) If the Minister neither approves, nor refuses to approve, the
variation before the end of the period of 90 days after the day on which the
Minister received the draft variation, the Minister is taken, at the end of that
period, to have approved the variation under subsection (2).
(4) As soon as practicable after deciding whether to approve the
variation, the Minister must notify the company in writing of the
decision.
(5) If the Minister refuses to approve the variation, the Minister must
notify the company in writing of the Minister’s reasons for the
refusal.
(6) If the Minister approves the variation, the strategy is varied
accordingly.
(1) If a final environment strategy is in force for an airport, the
airport-lessee company for the airport must take all reasonable steps to ensure
that the strategy is complied with.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Part 15.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) This section applies if:
(a) the Minister approves a draft environment strategy for an airport;
or
(b) the Minister approves a draft variation of a final environment
strategy for an airport.
(2) The airport-lessee company for the airport must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the strategy or variation has been approved;
and
(ii) stating that copies of the strategy or variation will be available
for inspection and purchase by members of the public during normal office hours
while the strategy remains in force; and
(iii) specifying the place or places where the strategy or variation will
be available for inspection and purchase; and
(b) make the strategy or variation available for inspection and purchase
by members of the public in accordance with the notice.
The company must comply with this subsection:
(c) within 90 days after the approval of the strategy or variation, as the
case requires; or
(d) if the Minister, by written notice given to the company, allows a
longer period—within that longer period.
(3) A company that intentionally or recklessly contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) The regulations may make standards and impose requirements that are to
be complied with in relation to, or in relation to the prevention or
minimisation of:
(a) environmental pollution (including air, water or soil pollution)
generated at airport sites; or
(b) the emission of noise generated at airport sites (other than noise
generated by aircraft in flight); or
(c) the disposal or storage of waste at airport sites.
(2) If a person knowingly or recklessly contravenes a provision of
regulations made for the purposes of subsection (1), the person is guilty of an
offence punishable on conviction by a fine not exceeding 250 penalty
units.
(3) Regulations made for the purposes of subsection (1) may make provision
for or in relation to a matter by conferring a power on the Minister.
(4) Section 125 does not, by implication, limit subsection (1) of this
section.
(1) The regulations may make provision for and in relation to:
(a) monitoring, cleaning up, remedying or rectifying environmental
pollution (including air, water or soil pollution) generated at airport sites;
or
(b) monitoring, mitigating, remedying or rectifying the emission of noise
generated at airport sites (other than noise generated by aircraft in flight);
or
(c) monitoring, mitigating, remedying or rectifying contraventions of
section 124 regulations relating to the disposal or storage of waste at airport
sites.
(2) Regulations made for the purposes of subsection (1) may prescribe
penalties not exceeding 50 penalty units for offences against those
regulations.
(3) Regulations made for the purposes of subsection (1) may make provision
for or in relation to a matter by conferring a power on the Minister.
(4) Section 124 does not, by implication, limit subsection (1) of this
section.
(1) If:
(a) a person has contravened regulations made for the purposes of section
124 or 125; and
(b) an airport-operator company for the airport has incurred expenses or
other liabilities in relation to cleaning up, remedying or rectifying the act or
omission constituting the contravention;
the person is liable to pay to the company an amount equal to so much of
those expenses or liabilities as is reasonable.
(2) An amount payable under subsection (1) may be recovered, as a debt due
to the company by the person, by action in a court of competent
jurisdiction.
(3) An action under subsection (1) must be instituted within 3 years after
the act or omission occurred or within such longer period as the court
allows.
(4) Subsection (1) does not limit, restrict or otherwise affect any right
or remedy the company would have if this section had not been enacted.
(1) If:
(a) a person has contravened regulations made for the purposes of section
124 or 125; and
(b) the Commonwealth has incurred expenses or other liabilities in
relation to cleaning up, remedying or rectifying the act or omission
constituting the contravention;
the person is liable to pay to the Commonwealth an amount equal to so much
of those expenses or liabilities as is reasonable.
(2) An amount payable under subsection (1) may be recovered, as a debt due
to the Commonwealth by the person, by action in a court of competent
jurisdiction.
(3) An action under subsection (1) must be instituted within 3 years after
the act or omission occurred or within such longer period as the court
allows.
(4) Subsection (1) does not limit, restrict or otherwise affect any right
or remedy the Commonwealth would have if this section had not been
enacted.
(1) Subject to this section, it is the intention of the Parliament that
this Division is not to apply to the exclusion of a law of a State or Territory
to the extent that that law is capable of operating concurrently with this
Division.
(2) The regulations may declare that a specified law of a State or
Territory has no effect in relation to a specified airport to the extent to
which the law makes provision for and in relation to a matter referred to in
paragraph 124(1)(a), (b) or (c) or 125(1)(a), (b) or (c).
Note: A law may be specified by name, by inclusion in a
specified class or in any other way.
(1) This section applies to regulations made for the purposes of section
124 or 125.
(2) In addition to their effect apart from this section, those regulations
also have the effect they would have if their application was, by express
provision, confined to acts or omissions of constitutional
corporations.
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against:
(a) this Part; or
(b) regulations made for the purposes of section 125;
to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
The following is a simplified outline of this Part:
• An airport-operator company may be required
to prepare audited accounts and give those accounts to the ACCC.
• The regulations may require an
airport-operator company for an airport to give the ACCC written reports about
the airport.
• The regulations may require an
airport-operator company to keep records relating to the preparation of those
accounts and reports.
This Part applies to an airport-operator company for:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
(1) This section applies to a company if the company was an
airport-operator company throughout the whole or a part of a financial
year.
Preparation of accounts
(2) The company must, in respect of the whole or part, as the case may be,
of the financial year, prepare such accounts and statements as are specified in,
or ascertained in accordance with, the regulations. However, this rule does not
apply if the regulations declare that the company is exempt from this
section.
Regulations may deal with the preparation of accounts
(3) The regulations may make provision for and in relation to the
preparation of accounts and statements covered by subsection (2). If the
regulations make such provision, the accounts and statements covered by
subsection (2) must be prepared in accordance with the regulations. This
subsection does not, by implication, limit subsection (2).
Accounts to be signed
(4) The accounts and statements prepared in accordance with subsection (2)
must be signed by at least 2 directors of the company.
Retention of accounts for 5 years
(5) The company must retain the accounts and statements prepared in
accordance with subsection (2) for 5 years after the end of the period to which
they relate.
Offence
(6) A company that intentionally or recklessly contravenes this section is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
Incorporation of AASB accounting standards
(7) Regulations made for the purposes of this section may make provision
for or in relation to a matter by applying, adopting or incorporating (with or
without modification) any matter contained in an AASB accounting standard as in
force or existing from time to time. For this purpose, an AASB accounting
standard is an accounting standard made by the Australian Accounting
Standards Board under section 32 of the Corporations Act 1989.
(1) This section applies if a company prepares accounts and statements in
respect of a period (the accounting period) in accordance with
this Division.
Audit by approved auditor
(2) The accounts and statements must be audited by an approved auditor.
Note: Approved auditor is defined by section
136.
Company to arrange for audit
(3) The company must make such arrangements as are necessary to enable the
audit of those accounts and statements in accordance with this
Division.
Offence
(4) A company that intentionally or recklessly contravenes subsection (3)
is guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
Auditor’s certificate
(5) The auditor must, for the purposes of this Division, give the company
a certificate relating to the accounts and statements. The certificate must be
given within the prescribed period after the accounting period. The certificate
must be in the prescribed form.
Offence
(6) A person who intentionally or recklessly contravenes subsection (5) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) This section applies if a company prepares accounts and statements in
respect of a period (the accounting period) in accordance with
this Division.
(2) The company must, within the prescribed period after the accounting
period, give the ACCC:
(a) those accounts and statements; and
(b) the certificate given to the company by an approved auditor under
section 134 in respect of the accounting period.
Note: Approved auditor is defined by section
136.
(3) A company that intentionally or recklessly contravenes this section is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
For the purposes of this Division, an approved auditor is a
person registered as an auditor, or taken to be registered as an auditor, under
Part 9.2 of the Corporations Law of a State or an internal Territory.
(1) The regulations may make provision for and in relation to requiring an
airport-operator company for an airport to give the ACCC written reports about
the airport.
Offence
(2) A company must not intentionally or recklessly contravene a
requirement covered by subsection (1).
Penalty: 50 penalty units.
Regulations may confer discretionary powers on the ACCC
(3) Regulations made for the purposes of this section may make provision
for or in relation to a matter by conferring a power on the ACCC. For example,
the regulations could provide that the ACCC may, by written notice given to an
airport-operator company for an airport, require the company to give the ACCC,
within the period and in the manner specified in the notice, a written report
about specified matters relating to the airport.
(1) The regulations may make provision for and in relation to requiring a
company to keep and retain records, where the records are relevant to the
preparation of:
(a) the accounts and statements of the company mentioned in section 133;
or
(b) the reports of the company mentioned in section 137.
(2) A company must not intentionally or recklessly contravene a
requirement covered by subsection (1).
Penalty: 50 penalty units.
(1) This section applies to a document given to the ACCC:
(a) under section 135; or
(b) in accordance with a requirement covered by subsection
137(1).
(2) Sections 33 and 43 of the Prices Surveillance Act 1983 have
effect as if the document had been given to the ACCC under section 32 of that
Act.
Note: Sections 33 and 43 of the Prices Surveillance Act
1983 protect the confidentiality of information given to the
ACCC.
This Part does not, by implication, limit the powers conferred on the
ACCC by the Trade Practices Act 1974 or the Prices Surveillance Act
1983.
It is the intention of the Parliament that this Part is not to apply to
the exclusion of a law of a State or Territory to the extent that that law is
capable of operating concurrently with this Part.
The following is a simplified outline of this Part:
• The regulations may specify performance
indicators to be used in monitoring and evaluating the quality of airport
services and facilities.
• The ACCC is to monitor and evaluate the
quality of airport services and facilities.
• The regulations may require information about
quality of service matters to be given to the ACCC.
• The ACCC may publish reports about quality of
service matters.
This Part applies to:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
This Part applies to an airport service or facility if the service or
facility is provided:
(a) by an airport-operator company; or
(b) by a person other than an airport-operator company under an agreement
with an airport-operator company.
The regulations may specify, or specify methods of ascertaining,
performance indicators to be used in monitoring and evaluating the quality of
airport services and facilities for the purposes of this Part.
The following are examples of performance indicators that could be
prescribed under section 145:
(a) indicators relating to congestion of aeronautical facilities, terminal
facilities or ground access systems;
(b) indicators relating to the standard of runways, taxiways and apron
facilities;
(c) indicators relating to the standard of passenger services;
(d) indicators relating to the standard of freight services.
(1) In addition to any functions conferred on the ACCC by other laws, the
ACCC has the function of monitoring and evaluating the quality of airport
services and facilities against:
(a) the performance indicators prescribed under section 145; and
(b) such other criteria as the ACCC determines in writing.
(2) The ACCC must give a free copy of a determination under paragraph
(1)(b) to any person who asks for a copy.
(1) The regulations may make provision for and in relation to requiring a
person:
(a) to keep and retain records, where the records are relevant to a
quality of service matter; and
(b) to give information to the ACCC that is relevant to a quality of
service matter.
Note: Quality of service matter is defined by
subsection (7).
Limits on obligations
(2) Regulations made for the purposes of this section must not impose an
obligation on a person unless:
(a) the person is an airport-operator company; or
(b) the person provides airport services or facilities under an agreement
with an airport-operator company; or
(c) the person is an aircraft operator and uses airport services or
facilities in connection with aircraft operations carried on by the person.
Statutory declarations
(3) The regulations may provide that information given in accordance with
a requirement covered by paragraph (1)(b) must be verified by statutory
declaration.
No self-incrimination
(4) An individual is not required to give information in accordance with a
requirement covered by paragraph (1)(b) if the information might tend to
incriminate the individual or expose the individual to a penalty.
Offence
(5) A person must not intentionally or recklessly contravene a requirement
covered by paragraph (1)(a) or (b).
Penalty: 50 penalty units.
Regulations may confer discretionary powers on the ACCC
(6) Regulations made for the purposes of this section may make provision
for or in relation to a matter by conferring a power on the ACCC. For example,
the regulations could provide that the ACCC may, by written notice given to an
airport-operator company, require the company to give the ACCC, within the
period and in the manner specified in the notice, specified information that is
relevant to a quality of service matter.
Quality of service matter
(7) For the purposes of this section, a matter is a quality of
service matter if it is relevant to the monitoring or evaluation of the
quality of airport services or facilities against performance indicators
prescribed under section 145.
(1) The ACCC may publish reports relating to the monitoring or evaluation
of the quality of airport services and facilities against:
(a) performance indicators prescribed under section 145; and
(b) other criteria determined by the ACCC under section 147.
(2) The ACCC may charge fees for the supply of reports published under
subsection (1).
(1) This section applies if information is given to the ACCC in accordance
with a requirement covered by paragraph 148(1)(b).
(2) Sections 33 and 43 of the Prices Surveillance Act 1983 have
effect as if the information had been given in accordance with section 32 of
that Act.
Note: Sections 33 and 43 of the Prices Surveillance Act
1983 protect the confidentiality of information given to the
ACCC.
(3) Section 43 of the Prices Surveillance Act 1983 has effect as if
the functions conferred on the ACCC by section 149 of this Act were conferred
instead by a provision of that Act.
Note: This allows the ACCC to publish section 149
reports.
This Part does not, by implication, limit the powers conferred on the
ACCC by the Trade Practices Act 1974 or the Prices Surveillance Act
1983.
The following is a simplified outline of this Part:
• Airport-lessee companies must give written
consent before airport sites are varied or closed.
• An airport-lessee company may surrender its
airport lease to the Commonwealth, either unconditionally or on such terms and
conditions as are agreed between the company and the Commonwealth.
Airports other than joint-user airports
(1) If there is an airport lease relating to an airport site for an
airport other than a joint-user airport, the Governor-General must not make any
regulations varying the site unless the lessee has given written consent to the
making of those regulations.
Joint-user airports
(2) If there is an airport lease relating to an airport site for a
joint-user airport, the Governor-General must not make any regulations varying
the area referred to in paragraph (c) of the definition of airport
lease in section 5 unless the lessee has given written consent to the
making of those regulations.
(1) If there is an airport lease relating to an airport site, the
Governor-General must not make any regulations repealing the declaration of the
site as an airport site unless the lessee has given written consent to the
making of those regulations.
(2) If there is a lease of the whole or a part of an airport site, the
Commonwealth must not take any action that would have the effect of creating an
absolute prohibition of the use of the site as an airport unless the lessee has
given written consent to the taking of that action.
(1) If there is a lease of the whole or a part of an airport site, the
lessee may surrender the lease to the Commonwealth.
(2) The surrender may be:
(a) unconditional; or
(b) subject to such terms and conditions as are agreed between the lessee
and the Commonwealth.
(3) The terms and conditions may require the Commonwealth to grant the
lessee a new airport lease relating to the same airport and require the lessee
to pay or give the Commonwealth consideration for the new airport lease. The new
lease may be expressed to take effect when regulations varying the airport site
take effect.
(4) Subsection (3) does not, by implication, limit subsection
(2).
The following is a simplified outline of this Part:
• The regulations may implement certain
international agreements relating to airports.
In this Part:
another country includes a region:
(a) that is part of a foreign country; or
(b) that is under the protection of a foreign country; or
(c) for whose international relations a foreign country is
responsible.
designated international agreement means:
(a) the Convention on International Civil Aviation concluded at Chicago on
7 December 1944, as amended by the Protocols referred to in subsection 3A(2) of
the Air Navigation Act 1920; or
(b) an Annex to that Convention, where the Annex was adopted in accordance
with that Convention; or
(c) an agreement or arrangement between:
(i) Australia, or an entity or organisation nominated or otherwise
similarly authorised by Australia to enter into the agreement or arrangement;
and
(ii) another country;
under which the carriage by air of passengers or freight, or both
passengers and freight, between Australia and the other country is
permitted.
(1) The regulations may provide for and in relation to requiring the
operator of an airport to act in a manner consistent with Australia’s
obligations under:
(a) a designated international agreement; and
(b) an amendment of such an agreement;
in so far as the agreement, or any part of the agreement, is intended to
affect the operation of airports that are open to access by international air
transport.
(2) Regulations made for the purposes of this section must not come into
operation before:
(a) the agreement enters into force, or comes into effect, for Australia;
or
(b) the amendment enters into force, or comes into effect, for
Australia;
as the case requires.
If:
(a) the operator of an airport knowingly or recklessly contravenes a
provision of regulations made for the purposes of section 158; and
(b) the regulations declare that this section applies to that
provision;
the operator is guilty of an offence punishable on conviction by a fine not
exceeding 250 penalty units.
The following is a simplified outline of this Part:
• The regulations may deal with the control of
the following matters at airports:
(a) liquor;
(b) commercial trading;
(c) vehicle movements;
(d) gambling;
(e) smoking.
• If no regulations are in force about a
particular matter, the relevant State/Territory laws will generally
apply.
This Part applies to:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
(1) The regulations may make provision for and in relation to prohibiting
or regulating the sale, supply, disposal or possession of liquor at a specified
airport.
(2) In this section:
liquor means wine, spirits, ale, beer or any liquid
containing alcohol ordinarily used, or fit for use, as a beverage.
(1) The regulations may make provision for and in relation to:
(a) prohibiting or regulating the supply of goods or services at a
specified airport; or
(b) authorising the supply of goods or services at a specified
airport;
if the goods or services are acquired by an individual as a consumer
(within the meaning of section 4B of the Trade Practices Act
1974).
(2) In this section:
goods has the same meaning as in the Trade Practices Act
1974.
services has the same meaning as in the Trade Practices
Act 1974, but does not include:
(a) air transport services; or
(b) services relating to aircraft.
supply has the same meaning as in the Trade Practices Act
1974.
(1) The regulations may:
(a) make provision for and in relation to prohibiting or regulating the
parking or use of vehicles within a specified airport; and
(b) provide for signs and road markings for those purposes.
(2) In this section:
vehicle includes:
(a) a trailer, caravan or portion of an articulated vehicle; or
(b) an object that was designed or adapted for use as a vehicle but is
incapable of being so used because:
(i) one or more parts have been removed from it; or
(ii) it is in a wrecked or damaged condition.
(1) The regulations may make provision for and in relation to prohibiting
or regulating gambling activities at a specified airport.
(2) In this section:
gambling activity includes a game of chance and a lottery
(whether involving the use of a machine or otherwise).
The regulations may make provision for and in relation to prohibiting or
regulating smoking at a specified airport.
Regulations made for the purposes of this Part may prescribe penalties
not exceeding 50 penalty units for offences against those regulations.
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against regulations made for the purposes of this Part
to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
(1) Subject to this section, it is the intention of the Parliament that
this Part is not to apply to the exclusion of a law of a State or Territory to
the extent that that law is capable of operating concurrently with this
Part.
(2) The regulations may declare that a specified law of a State or
Territory has no effect at a specified airport to the extent to which the law
makes provision for and in relation to a matter referred to in section 162, 163,
164, 165 or 166.
Note: A law may be specified by name, by inclusion in a
specified class or in any other way.
(1) This section applies to regulations made for the purposes of this
Part.
(2) At least 30 days before regulations relating to a particular airport
are made, the Minister must give each airport-operator company for the airport a
notice:
(a) stating that there is a proposal to make those regulations;
and
(b) inviting the company to give the Minister a submission about the
proposed regulations within 30 days after receiving the notice.
(3) If a company gives the Minister a written submission in accordance
with the notice, the Minister must have due regard to the submission in dealing
with the proposal.
(4) Subsection (3) does not, by implication, limit the matters to which
the Minister may have regard.
The following is a simplified outline of this Part:
• The regulations may declare airspace to be
prescribed airspace if it is in the interests of the safety,
efficiency or regularity of air transport operations into or out of an airport
for the airspace to be protected.
• Activities that result in intrusions into
prescribed airspace are called controlled activities.
• Controlled activities require
approval.
• Approvals are given under the
regulations.
(1) This Part applies to:
(a) a core regulated airport, where the site of the airport is a
Commonwealth place; or
(b) an airport specified in the regulations, where the site of the airport
is a Commonwealth place; or
(c) an airport specified in the regulations, where the site of the airport
is not a Commonwealth place.
(2) For the purposes of subsection (1), the boundaries of the site of an
airport are to be ascertained in accordance with the regulations.
(1) For the purposes of this Part, a prescribed airspace is
an airspace specified in, or ascertained in accordance with, the regulations,
where it is in the interests of the safety, efficiency or regularity of existing
or future air transport operations into or out of an airport for the airspace to
be protected under this Part.
(2) Regulations made for the purposes of subsection (1) may make provision
for or in relation to a matter by applying, adopting or incorporating (with or
without modification) any matter contained in the Aeronautical Information
Publication as in force or existing from time to time.
(3) A reference in this section to the Aeronautical Information
Publication is a reference to the Aeronautical Information Publication
published by Airservices Australia in accordance with the Air Services
Regulations.
For the purposes of this Division, the following activities are
controlled activities in relation to a prescribed
airspace:
(a) constructing a building, or other structure, that intrudes into the
prescribed airspace;
(b) altering a building or other structure so as to cause the building or
structure to intrude into the prescribed airspace;
(c) any other activity that causes a thing attached to, or in physical
contact with, the ground to intrude into the prescribed airspace.
Note: Prescribed airspace is defined by
section 173.
(1) A person must not:
(a) carry out a controlled activity in relation to prescribed airspace;
or
(b) cause to be carried out a controlled activity in relation to
prescribed airspace;
unless:
(c) carrying out the activity is in accordance with an approval granted
under regulations made for the purposes of this Division; or
(d) the activity is declared by the regulations to be exempt from this
Division.
Note: Controlled activity is
defined by section 174.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(1) The regulations may make provision for and in relation to the
following:
(a) the grant of approvals authorising controlled activities to be carried
out in relation to prescribed airspace;
(b) conditions of such approvals;
(c) revocation, variation or surrender of such approvals;
(d) fees in respect of applications for such approvals.
(2) The regulations may provide that approvals must not be granted in
respect of particular kinds of controlled activities.
If an approval was granted to a person under regulations made for the
purposes of this Division, the person must not, whether before or after
completion of the controlled activity concerned, intentionally or recklessly
contravene a condition of the approval.
Penalty: 250 penalty units.
(1) The regulations may make provision for and in relation to requiring a
person to give information to the operator of an airport, where the information
is relevant to a proposal to carry out a controlled activity in relation to
prescribed airspace connected with the airport.
Offence
(2) A person must not intentionally or recklessly contravene a requirement
covered by subsection (1).
Penalty: 50 penalty units.
Regulations may confer discretionary powers on the
Minister
(3) Regulations made for the purposes of this section may make provision
for or in relation to a matter by conferring a power on the Minister. For
example, the regulations could provide that the Minister may, by written notice
given to a person, require the person to give to the airport-lessee company for
an airport, within the period and in the manner specified in the notice,
specified information about proposals to carry out controlled activities in
relation to prescribed airspace connected with the airport.
Unauthorised structures
(1) If:
(a) a controlled activity is carried out in relation to prescribed
airspace; and
(b) the activity is not declared by the regulations to be exempt from this
Division; and
(c) either:
(i) the activity was not authorised by an approval granted under the
regulations; or
(ii) if such an approval was granted in relation to the activity—a
condition of the approval was contravened;
the Federal Court may, on application by the Minister, make an order
requiring a person:
(d) to carry out remedial work on; or
(e) to mark and/or light; or
(f) to reduce the height of; or
(g) to demolish, dismantle or remove;
the building, structure or thing concerned.
Interference with safety, efficiency or regularity of air transport
operations
(2) If the Federal Court is satisfied that it is in the interests of the
safety, efficiency or regularity of existing or future air transport operations
into or out of a particular airport to do so, the court may, on application by
the Minister, make an order requiring a person:
(a) to carry out remedial work on; or
(b) to mark and/or light; or
(c) to reduce the height of; or
(d) to demolish, dismantle or remove;
a building, structure or object that intrudes into prescribed
airspace.
Ancillary orders
(3) In addition to the Federal Court’s powers under subsections (1)
and (2), the court:
(a) has power, for the purpose of securing compliance with any other order
made under this section, to make an order directing any person to do or refrain
from doing a specified act; and
(b) has power to make an order containing such ancillary or consequential
provisions as the court thinks just.
Notice of application
(4) The Federal Court may, before making an order under this section,
direct that notice of the Minister’s application be given to such persons
as it thinks fit or be published in such manner as it thinks fit, or
both.
Variation etc.
(5) The Federal Court may, by order, rescind, vary or discharge an order
made by it under this section or suspend the operation of such an
order.
Definition
(6) In this section:
object includes a tree or other natural obstacle.
(1) If:
(a) apart from this section, the operation of this Part would result in
the acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
In addition to its effect apart from this section, this Part also has the
effect it would have if each reference in this Part to air transport operations
were, by express provision, confined to:
(a) interstate air transport operations; and
(b) international air transport operations; and
(c) air transport operations carried on by constitutional corporations;
and
(d) air transport operations carried on by the Commonwealth or by an
authority or instrumentality of the Commonwealth; and
(e) air transport operations carried on for a purpose related to the
defence of Australia; and
(f) air transport operations in a Territory; and
(g) other air transport operations, where it is in the interests of the
safety, efficiency or regularity of, or it is otherwise incidental to, air
transport operations covered by paragraphs (a), (b), (c), (d), (e) and (f) for
those other air transport operations to be within the scope of this
Part.
This Part has effect in addition to, and not instead of, regulations
under the Civil Aviation Act 1988.
The following is a simplified outline of this Part:
• An airport service will be a declared service
for the purposes of the access regime set out in Part IIIA of the Trade
Practices Act 1974 unless an access undertaking is given within 12 months
after responsibility for the airport is transferred to the private
sector.
• This Part enables the Minister to formulate a
demand management scheme for an airport.
• The 3 main types of demand management schemes
are:
(a) category exclusion schemes;
(b) slot allocation schemes;
(c) movement limitation schemes.
• A demand management scheme is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
• Before formulating a demand management
scheme, the Minister must declare that the airport is subject to statutory
demand management.
• Before declaring that an airport is subject
to statutory demand management, the Minister must make a declaration about the
capacity of the airport to handle aircraft movements.
• A declaration subjecting an airport to
statutory demand management is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(1) As soon as practicable after the end of the designated period for a
core regulated airport, the Minister must, by notice in the Gazette,
determine that subsection (2) applies to the airport.
(2) If a determination is in force under subsection (1) in relation to an
airport, then each airport service in relation to the airport is a declared
service for the purposes of Part IIIA of the Trade Practices Act 1974
except to the extent (if any) to which that airport service is the subject
of an access undertaking that is in operation from time to time under
that Part.
(3) A determination under subsection (1) must specify the expiry date of
the determination.
(4) A determination under subsection (1) is irrevocable.
(5) In this section:
airport service means a service provided at a core regulated
airport, where the service:
(a) is necessary for the purposes of operating and/or maintaining civil
aviation services at the airport; and
(b) is provided by means of significant facilities at the airport, being
facilities that cannot be economically duplicated;
and includes the use of those facilities for those purposes.
designated period, in relation to a core regulated airport,
means the 12-month period beginning at whichever of the following times is
applicable:
(a) if, at any time, an airport lease for the airport was granted under
section 21 of the Airports (Transitional) Act 1996 to a company—the
sale time for that company (within the meaning of that Act);
(b) if, at any time, an airport lease for the airport was granted under
section 22 of the Airports (Transitional) Act 1996—the time of the
grant of that lease.
Part IIIA of the Trade Practices Act 1974 has effect subject to
Divisions 3 to 10 of this Part.
Airports within scope of demand management provisions
(1) Divisions 4 to 10 (inclusive) apply to:
(a) a core regulated airport; or
(b) an airport specified in the regulations;
if there is an airport lease for the airport.
Aircraft movements within scope of demand management
provisions
(2) Divisions 4 to 10 (inclusive) apply to an aircraft movement if the
movement involves the use of a runway.
(1) The Minister may make a written declaration setting out the capacity
(the declared capacity) that, in the Minister’s opinion,
represents a reasonable estimate of the capacity of a specified airport. The
declaration is called an airport capacity declaration.
(2) The declared capacity is to be expressed in terms of the maximum
number of aircraft movements that the airport is capable of handling during one
or more specified intervals of time (whether recurring or otherwise).
(3) A copy of the declaration is to be published in the
Gazette.
(1) Before making an airport capacity declaration for an airport, the
Minister must:
(a) cause to be published in a newspaper circulating generally in the
State or Territory in which the airport is situated a notice:
(i) stating that the Minister has prepared a draft version of the
declaration; and
(ii) stating that the draft version of the declaration was prepared on the
basis of an assessment of the capacity of the airport; and
(iii) stating that copies of the draft version and of the assessment will
be available for inspection and purchase by members of the public during normal
office hours throughout the period of 45 days after the publication of the
notice; and
(iv) specifying the place or places where the copies will be available for
inspection and purchase; and
(v) inviting members of the public to give written comments about the
draft version and the assessment to the Minister within 45 days after
publication of the notice; and
(b) make copies of the draft version and the assessment available for
inspection and purchase by members of the public in accordance with the
notice.
(2) If members of the public have given written comments about the draft
version or the assessment in accordance with the notice, the Minister must have
due regard to those comments in making the declaration.
(3) Subsection (2) does not, by implication, limit the matters to which
the Minister may have regard.
Note: If an airport capacity declaration is varied, the
variation must be dealt with under this section in the same manner as an
original declaration—see subsection 33(3) of the Acts Interpretation
Act 1901.
(1) Before the publication of a notice under section 188 relating to an
airport capacity declaration for an airport, the Minister must cause to be
published in the Gazette a notice:
(a) stating that the Minister is considering making an airport capacity
declaration for the airport; and
(b) inviting persons covered by any of the following subparagraphs to give
the Minister a capacity submission within 30 days after the publication of the
notice:
(i) an airport-operator company for the airport;
(ii) an aircraft operator who uses the airport;
(iii) Airservices Australia;
(iv) the Civil Aviation Safety Authority.
For this purpose, a capacity submission is a submission about
the capacity of the airport.
(2) If a person gives the Minister a written submission in accordance with
the notice, the Minister must have due regard to the submission in making the
declaration.
(3) Subsection (2) does not, by implication, limit the matters to which
the Minister may have regard.
Note: If an airport capacity declaration is varied, the
variation must be dealt with under this section in the same manner as an
original declaration—see subsection 33(3) of the Acts Interpretation
Act 1901.
(1) This section applies to an airport if an airport capacity declaration
is in force for the airport.
(2) The Minister may, by notice published in the Gazette, declare
that the airport is subject to statutory demand management under this
Part.
(3) If an airport capacity declaration for an airport is revoked, any
declaration under this section that relates to the airport is taken to be
revoked.
(4) A declaration under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) In deciding whether to make a declaration under section 190 about an
airport, the Minister must have regard to the following matters:
(a) whether demand for the handling of aircraft movements at the airport
exceeds, or is likely to exceed, the declared capacity of the airport;
(b) the effectiveness of any existing or proposed arrangements for
self-management or self-regulation of demand for the handling of aircraft
movements at the airport;
(c) the impact of the airport-lessee company’s existing or proposed
pricing arrangements on demand for the handling of aircraft movements at the
airport;
(d) the extent, or likely extent, of congestion at the airport;
(e) existing or proposed laws or other controls relating to environmental
matters (including noise matters);
(f) Australia’s international obligations.
(2) Subsection (1) does not, by implication, limit the matters to which
the Minister may have regard.
(1) At least 30 days before making a declaration under section 190 about
an airport, the Minister must give each airport-operator company for the airport
a notice:
(a) stating that the Minister is considering making a declaration under
section 190 about the airport; and
(b) inviting the company to give the Minister a submission about the
proposed declaration within 30 days after receiving the notice.
(2) If a company gives the Minister a written submission in accordance
with the notice, the Minister must have due regard to the submission in making
the declaration.
(3) Subsection (2) does not, by implication, limit the matters to which
the Minister may have regard.
Note: If a declaration is varied, the variation must be
dealt with under this section in the same manner as an original
declaration—see subsection 33(3) of the Acts Interpretation Act
1901.
(1) This section applies to an airport if a declaration under section 190
is in force for the airport.
Note: Under section 190, the Minister may declare that an
airport is subject to statutory demand management.
(2) The Minister may, by written instrument, formulate a scheme for the
management of demand for the handling of aircraft movements at the airport. Such
a scheme is to be known as a demand management scheme.
(3) If a declaration under section 190 relating to an airport is revoked,
any instrument under this section that relates to the airport is taken to be
revoked.
(4) An instrument under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) At least 30 days before making an instrument under section 193
relating to an airport, the Minister must give each airport-operator company for
the airport a notice:
(a) stating that the Minister is considering making an instrument under
section 193 about the airport; and
(b) inviting the company to give the Minister a submission about the
proposed instrument within 30 days after receiving the notice.
(2) If a company gives the Minister a written submission in accordance
with the notice, the Minister must have due regard to the submission in making
the instrument.
(3) Subsection (2) does not, by implication, limit the matters to which
the Minister may have regard.
Note: If an instrument is varied, the variation must be
dealt with under this section in the same manner as an original
instrument—see subsection 33(3) of the Acts Interpretation Act
1901.
For the purposes of this Part, there are 4 types of schemes for the
management of demand for the handling of aircraft movements at an
airport:
(a) category exclusion schemes (see section 196);
(b) slot allocation schemes (see section 197);
(c) movement limitation schemes (see section 198);
(d) schemes not covered by paragraph (a), (b) or (c).
(1) For the purposes of this Part, a category exclusion
scheme is a scheme that has the effect of prohibiting specified
categories of aircraft movements at an airport (except in cases relating to
emergencies or safety matters).
(2) The prohibitions may apply:
(a) at all times; or
(b) only during one or more specified intervals of time (whether recurring
or otherwise).
(1) For the purposes of this Part, a slot allocation scheme
is a scheme of a kind known in the civil aviation industry as a scheme for the
allocation of take-off and landing slots at an airport.
(2) A slot allocation scheme for an airport may provide for the Minister
to authorise a person to be the slot co-ordinator for the
airport.
(3) A slot allocation scheme for an airport may confer powers and
functions on the slot co-ordinator for the airport.
For the purposes of this Part, a movement limitation scheme
is a scheme that:
(a) limits the total number of aircraft movements that may be handled at
an airport during one or more specified intervals of time (whether recurring or
otherwise); or
(b) limits the total number of aircraft movements belonging to a specified
category that may be handled at an airport during one or more specified
intervals of time (whether recurring or otherwise).
This Part does not prevent 2 or more schemes from applying to the same
airport at the same time.
If:
(a) a person knowingly or recklessly contravenes a provision of a demand
management scheme; and
(b) the scheme declares that this section applies to that
provision;
the person is guilty of an offence punishable on conviction by a fine not
exceeding 250 penalty units.
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against section 200 to pay a penalty to the
Commonwealth as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
This Part has effect in addition to, and not instead of, the Sydney
Airport Curfew Act 1995.
This Part has effect in addition to, and not instead of, regulations
under the Air Navigation Act 1920.
For the purposes of this Part, the following periods are examples of
recurring intervals of time:
(a) a calendar year;
(b) a week;
(c) a day;
(d) a day (a business day) that is not a Saturday, a Sunday
or a public holiday;
(e) a 60-minute period that begins at 8 am on a business day;
(f) Christmas day.
(1) 2 or more intervals of time (whether recurring or otherwise) may be
specified in an airport capacity declaration or a demand management scheme even
if one or more of those intervals is included in any other of those
intervals.
(2) The following is an example of the operation of subsection
(1):
An airport capacity declaration for the XYZ airport is expressed in the
following terms:
(a) the airport is capable of handling a maximum of 186, 150 aircraft
movements each calendar year that is not a leap year, and 186,660 aircraft
movements each leap year;
(b) the airport is capable of handling a maximum of 510 aircraft movements
each day;
(c) the airport is capable of handling a maximum of 30 aircraft movements
each 60-minute period beginning at 8 am on a day that is not a Saturday, a
Sunday or a public holiday.
In addition to their effect apart from this section, Divisions 3 to 9
(inclusive) also have the effect they would have if each reference in those
Divisions to a scheme for the management of demand for the handling of aircraft
movements at an airport were, by express provision, confined to a scheme for the
management of demand for the handling of any or all of the following:
(a) aircraft movements at an airport, where the movements are in the
course of interstate air transport operations;
(b) aircraft movements at an airport, where the movements are in the
course of international air transport operations;
(c) aircraft movements at an airport, where the aircraft are operated by
constitutional corporations;
(d) aircraft movements at an airport, where the aircraft are operated by
the Commonwealth or by an authority or instrumentality of the
Commonwealth;
(e) aircraft movements at an airport, where the movements are for a
purpose related to the defence of Australia;
(f) aircraft movements at an airport in a Territory;
(g) other aircraft movements at an airport, where it is in the interests
of the safety, efficiency or regularity of, or it is otherwise incidental
to:
(i) interstate air transport operations; or
(ii) international air transport operations; or
(iii) air transport operations carried on by constitutional corporations;
or
(iv) air transport operations carried on by the Commonwealth or by an
authority or instrumentality of the Commonwealth; or
(v) air transport operations carried on for a purpose related to the
defence of Australia; or
(vi) air transport operations in a Territory;
for those other aircraft movements to be dealt with by the
scheme.
The following is a simplified outline of this Part:
• Airservices Australia will generally oversee
the provision of air traffic services, and rescue and fire fighting services, at
airports.
(1) An airport-lessee company for an airport must not:
(a) provide either of the following services in relation to the
airport:
(i) the operation and/or maintenance of air traffic control and/or
navigation technical facilities;
(ii) rescue and fire fighting services; or
(b) cause or permit either of the following services to be provided in
relation to the airport:
(i) the operation and/or maintenance of air traffic control and/or
navigation technical facilities;
(ii) rescue and fire fighting services;
unless:
(c) in any case—the services are provided by Airservices Australia;
or
(d) in any case—the services are provided in accordance with an
arrangement between:
(i) Airservices Australia and a third person; or
(ii) Airservices Australia and the company; or
(e) in the case of rescue and fire fighting services—the services
are provided in accordance with an arrangement approved in writing by the
Minister for the purposes of this section.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 250
penalty units.
(3) The reference in paragraph (1)(d) to an arrangement includes a
reference to an arrangement relating to the provision of additional services in
an emergency.
The following is a simplified outline of this Part:
• The Federal Court may grant injunctions
relating to contraventions of this Act or of a demand management
scheme.
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of this Act or of a demand management scheme, the
Federal Court may, on the application of the Minister, grant an
injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
(2) If:
(a) a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of section 41 or 45; and
(b) in the case of a contravention of section 41—the contravention
relates to the existence of an unacceptable foreign-ownership situation in
relation to an airport-operator company; and
(c) in the case of a contravention of section 45—the contravention
relates to the existence of an unacceptable airline-ownership situation in
relation to an airport-operator company;
the Federal Court may, on the application of the company, grant an
injunction:
(d) restraining the person from engaging in the conduct; and
(e) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of this Act
or of a demand management scheme;
the Federal Court may, on the application of the Minister, grant an
injunction requiring the person to do that act or thing.
(4) If:
(a) a person has refused or failed, is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of
subsection 50(4) that relates to a requirement covered by paragraph 50(1)(c) to
give information to an airport-operator company;
the Federal Court may, on the application of the company, grant an
injunction requiring the person to do that act or thing.
Grant of interim injunction
(1) If an application is made to the court for an injunction under section
210, the court may, before considering the application, grant an interim
injunction restraining a person from engaging in conduct of a kind referred to
in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
section 210, as a condition of granting an interim injunction, to give any
undertakings as to damages.
The court may discharge or vary an injunction granted under this
Part.
Restraining injunctions
(1) The power of the court under this Part to grant an injunction
restraining a person from engaging in conduct of a particular kind may be
exercised:
(a) if the court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person
engages in conduct of that kind.
Performance injunctions
(2) The power of the court to grant an injunction requiring a person to do
an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do
that act or thing—whether or not it appears to the court that the person
intends to refuse or fail again, or to continue to refuse or fail, to do that
act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
The powers conferred on the court under this Part are in addition to, and
not instead of, any other powers of the court, whether conferred by this Act or
otherwise.
The following is a simplified outline of this Part:
• This Part deals with the proof of offences
that involve employees, agents etc.
State of mind
(1) If, in proceedings for an offence against this Act in respect of
conduct engaged in by a corporation, it is necessary to establish the state of
mind of the corporation, it is sufficient to show that:
(a) a director, employee or agent of the corporation engaged in that
conduct; and
(b) the director, employee or agent was, in engaging in that conduct,
acting within the scope of his or her actual or apparent authority;
and
(c) the director, employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a corporation by a director,
employee or agent of the corporation; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of a prosecution for an offence
against this Act, to have been engaged in by the corporation unless the
corporation establishes that it took reasonable precautions and exercised due
diligence to avoid the conduct.
Extended meaning of state of mind
(3) A reference in subsection (1) to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Extended meaning of director
(4) A reference in this section to a director of a
corporation includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth, a State or a
Territory.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against this Act
(6) A reference in this section to an offence against this
Act includes a reference to an offence created by section 6, 7 or 7A or
subsection 86(1) of the Crimes Act 1914 that relates to this
Act.
State of mind
(1) If, in proceedings for an offence against this Act in respect of
conduct engaged in by a person other than a corporation, it is necessary to
establish the state of mind of the person, it is sufficient to show
that:
(a) the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(b) the employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a person other than a corporation
by an employee or agent of the person; and
(b) the conduct is within the employee’s or agent’s actual or
apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence
against this Act, to have been engaged in by the person unless the person
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
Limitation on imprisonment
(3) Despite any other provision of this Act, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections
(1) and (2) had not been in force;
the person is not liable to be punished by imprisonment for that
offence.
Extended meaning of state of mind
(4) A reference in this section to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against this Act
(6) A reference in this section to an offence against this
Act includes a reference to an offence created by section 6, 7 or 7A or
subsection 86(1) of the Crimes Act 1914 that relates to this
Act.
The following is a simplified outline of this Part:
• It is an offence to make a false statement,
or keep an incorrect record, in connection with the operation of this
Act.
(1) A person who knowingly or recklessly:
(a) makes a statement to a regulatory official that is false or misleading
in a material particular; or
(b) omits from a statement made to a regulatory official any matter or
thing without which the statement is misleading in a material
particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
(2) In this section:
regulatory official means a person exercising powers or
performing functions under or in relation to this Act.
statement made to a regulatory official means a statement
made to a regulatory official orally, in writing, in a data processing device or
in any other form and includes (but is not limited to) a statement:
(a) made in any information given, or purporting to be given, under this
Act; or
(b) made in an application made, or purporting to be made, under this
Act.
(1) A person must not, in purported compliance with a requirement covered
by paragraph 50(1)(a), subsection 138(1) or paragraph 148(1)(a), make a record
of any matter or thing in such a way that it does not correctly record the
matter or thing.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by imprisonment for a term not
exceeding 6 months.
A person who, in purported compliance with a requirement covered by
paragraph 50(1)(c) or subsection 178(1), knowingly or recklessly:
(a) gives information to an airport-operator company that is false or
misleading in a material particular; or
(b) omits from information given to an airport-operator company any matter
or thing without which the information is misleading in a material
particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
(1) A company must not, in purported compliance with section 133, prepare
any accounts or statements in such a way that they do not correctly record and
explain the matters or things to which they relate.
(2) A company that intentionally or recklessly contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding 150
penalty units.
A person who, in purported compliance with subsection 134(5), knowingly
or recklessly:
(a) gives a certificate to a company that is false or misleading in a
material particular; or
(b) omits from a certificate given to a company any matter or thing
without which the certificate is misleading in a material particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
The following is a simplified outline of this Part:
• This Part authorises leased airports to be
monitored for the purposes of ascertaining whether Part 5 or 6 has been complied
with.
• Parts 5 and 6 deal with land use, planning,
building control and environmental management.
(1) The Minister may make a written determination that a specified person
is an authorised officer for the purposes of this Part. The
determination has effect accordingly.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(2) The Minister may make a written determination that a specified
authorised officer does not have such of the powers conferred on an authorised
officer by this Part as are specified in the determination. The determination
has effect accordingly.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(3) The Minister may make a written determination that the powers
conferred on a specified authorised officer by this Part are subject to such
limitations as are specified in the determination. The determination has effect
accordingly.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(4) If the Minister makes a determination under subsection (2) or (3)
about a named individual, the Minister must give the individual a copy of the
determination.
(5) The Minister may issue a written certificate stating any or all of the
following:
(a) that a specified person was at a specified time, or was at all times
during a specified period, an authorised officer for the purposes of this Part;
(b) that at a specified time, or at all times during a specified period, a
specified person had such of the powers conferred on an authorised officer by
this Part as are specified in the certificate;
(c) that a specified time, or at all times during a specified period, the
powers conferred on a specified person by this Part were subject to such
limitations as are specified in the certificate.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(6) In any proceedings relating to this Act, a certificate under
subsection (5) is prima facie evidence of the matters in the
certificate.
(7) A document purporting to be a certificate under subsection (5) must,
unless the contrary is established, be taken to be a certificate and to have
been properly given.
(1) The Secretary to the Department may cause to be issued to each
authorised officer an identity card.
(2) An identity card must:
(a) be in a form approved in writing by the Secretary to the Department;
and
(b) incorporate a recent photograph of the person.
(3) A person who ceases to be an authorised officer must, as soon as
practicable after so ceasing, return his or her identity card to the Secretary
to the Department.
(4) A person who intentionally or recklessly, without reasonable excuse,
fails to return his or her identity card, as provided for in subsection (3), is
guilty of an offence punishable on conviction by a fine not exceeding 5 penalty
units.
(1) Subject to this section, an authorised officer may, to the extent that
it is reasonably necessary for the purpose of ascertaining whether Part 5 or 6
has been or is being complied with, enter any airport premises and exercise
monitoring powers at any time during the day or night.
Note 1: Airport premises is defined by section
231.
Note 2: Monitoring powers is defined by
section 230.
(2) An authorised officer may not, under subsection (1), enter any airport
premises unless the occupier of the airport premises has consented to the
entry.
(3) An authorised officer is not entitled to exercise any powers under
subsection (1) in relation to airport premises if:
(a) the occupier of the airport premises has required the authorised
officer to produce his or her identity card for inspection by the occupier;
and
(b) the authorised officer fails to comply with the requirement.
(4) Before obtaining the consent of a person for the purposes of this
section, the authorised officer must inform the person that he or she may refuse
to give consent.
(5) An entry by an authorised officer by virtue of the consent of a person
is not lawful unless the person voluntarily consented to the entry.
(1) An authorised officer may apply to a magistrate for a warrant under
this section in relation to particular airport premises.
Note: Airport premises is defined by section
217G.
(2) Subject to subsection (3), the magistrate may issue the warrant if
satisfied, by information on oath or affirmation, that it is reasonably
necessary that the authorised officer should have access to the airport premises
for the purpose of finding out whether Part 5 or 6 has been or is being complied
with.
(3) The magistrate must not issue the warrant unless the authorised
officer or someone else has given the magistrate, either orally (on oath or
affirmation) or by affidavit, any further information the magistrate may require
about the grounds on which the issue of the warrant is being sought.
(4) The warrant must:
(a) authorise any authorised officer named in the warrant, with such
assistance and by such force as is necessary and reasonable, from time to time
while the warrant remains in force, to enter the airport premises and exercise
monitoring powers; and
(b) state whether an entry under the warrant is authorised to be made at
any time of the day or night or during specified hours of the day or night;
and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
Note: Monitoring powers is defined by section
230.
(1) If an authorised officer is on or in airport premises because the
occupier of the airport premises consented to the officer’s entry, the
officer may ask the occupier to:
(a) answer any questions put by the authorised officer; and
(b) produce any documents requested by the authorised officer.
(2) An authorised officer who is on or in airport premises that he or she
has entered under a warrant may require any person on or in the airport
premises:
(a) to answer any questions put by the authorised officer; and
(b) to provide any documents requested by the authorised
officer.
(3) A person must not, without reasonable excuse, fail to comply with a
requirement under subsection (2).
Penalty: Imprisonment for 6 months.
(4) It is a reasonable excuse for a person to refuse or fail to answer a
question or produce a document on the ground that to do so would tend to
incriminate the person.
(1) A reference in this Part to monitoring powers is a
reference:
(a) in relation to airport premises—to the following
powers:
(i) to search the airport premises;
(ii) to take photographs (including a video recording), or make sketches,
of the airport premises or any substance or thing at the airport
premises;
(iii) to inspect, examine and take samples of, any substance or thing on
or in the airport premises;
(iv) to take extracts from, or make copies of, any document on the airport
premises;
(v) to take measurements, make surveys or take levels at airport premises
and, for those purposes, to dig trenches, break up the soil or set up any post,
stake or mark at the airport premises;
(vi) to take onto the airport premises any equipment or material
reasonably necessary for the purpose of exercising a power under subparagraph
(i), (ii), (iii), (iv) or (v); and
(b) in relation to certain documents on airport premises—to the
powers described in subsections (2) and (3).
(2) An authorised officer has power to operate equipment at the airport
premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the airport premises; and
(ii) can be used with or is associated with the equipment;
contains information that is relevant to determining whether there has
been compliance with Part 5 or 6.
(3) If the authorised officer, after operating equipment at the airport
premises, finds that the equipment, or that a disk, tape or other storage device
at the airport premises, contains information of that kind, he or she has
power:
(a) to operate the equipment or other facilities to put the information in
documentary form and copy the documents so produced; or
(b) if the information can be transferred to a disk, tape or other storage
device that:
(i) is brought to the airport premises; or
(ii) is at the airport premises and the use of which for the purpose has
been agreed to in writing by the occupier of the airport premises;
to operate the equipment or other facilities to copy the information to
the storage device and remove the storage device from the airport
premises.
A reference in this Part to airport premises is a reference
to:
(a) an airport site, if there is an airport lease for the airport;
or
(b) a building or other structure on such a site;
and includes a part of any such premises.
A reference in this Part to Part 5 or 6 includes a
reference to regulations made for the purposes of Part 5 or 6.
The following is a simplified outline of this Part:
• Certain decisions under this Act can be
reviewed by the Administrative Appeals Tribunal.
• The Minister is required to table statements
about certain decisions under this Act
• The Minister may delegate his or her powers
under this Act.
• Certain offences against Part 2, 3 or 4 are
indictable offences.
• Parts 3 to 8 (inclusive) do not apply to an
airport-operator company unless the company is a constitutional
corporation.
• This Act does not, by implication, limit the
application of the Trade Practices Act 1974. However, section 50 of that
Act does not prevent the common ownership of Sydney (Kingsford-Smith) and Sydney
West Airports.
• An airport-operator company may relocate an
abandoned aircraft within the airport site.
• Provision is made for access to airports for
defence-related purposes and for emergency or disaster relief.
• The Governor-General may make regulations for
the purposes of this Act.
(1) Applications may be made to the Administrative Appeals Tribunal for
review of decisions made by the Minister under this Act.
(2) Subsection (1) does not apply to the following decisions:
(a) a decision under Division 3 of Part 2 (which deals with the grant of
airport leases);
(b) a decision to approve, or to refuse to approve, the transfer of an
airport lease;
(c) a decision to approve, or to refuse to approve, a company under
section 33 (which deals with airport-management agreements);
(d) a decision under Part 13 (which deals with access to airports and
demand management schemes for airports);
(e) a decision under paragraph 208(1)(e) (which deals with arrangements
relating to rescue and fire fighting services);
(f) a decision to apply, or to refuse to apply, to the Federal Court for
an order or injunction;
(g) a decision under section 236 to delegate, or to refuse to delegate, a
power.
Notification of right of review
(3) If the Minister:
(a) makes a decision of a kind covered by subsection (1); and
(b) gives to the person or persons whose interests are affected by the
decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975, application may be made to the
Administrative Appeals Tribunal for review of the decision.
Validity of decision
(4) A failure to comply with subsection (3) does not affect the validity
of a decision.
Definition
(5) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
(1) This section applies to the following decisions under this
Act:
(a) a decision to grant an airport lease under section 13;
(b) a decision to approve, or to refuse to approve, the transfer of an
airport lease;
(c) a decision to approve, or to refuse to approve, a company under
section 33 (which deals with airport-management agreements);
(d) a decision to make a determination, declaration or other instrument
under Part 13 (which deals with access to airports and demand management schemes
for airports).
(2) If a decision is made, the Minister must:
(a) prepare a statement about the decision; and
(b) cause a copy of the statement to be laid before each House of the
Parliament within 15 sittings days of that House after the decision was
made.
(3) The Minister is not required to comply with subsection (2) to the
extent to which compliance could reasonably be expected to prejudice
substantially the commercial interests of a person.
(1) The Minister may, by writing, delegate to:
(a) the Secretary to the Department; or
(b) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department);
all or any of the Minister’s powers under this Act or under a demand
management scheme.
(2) In subsection (1):
Senior Executive Service office has the same meaning
as in the Public Service Act 1922.
An offence against any of the following provisions is an indictable
offence:
(a) Part 2;
(b) Division 3 or 4 of Part 3;
(c) Part 4.
Parts 3 to 8 (inclusive) do not apply to an airport-operator company
unless the company is a constitutional corporation.
In addition to its effect apart from this section, this Act also has the
effect it would have if each reference in this Act (other than in the definition
of Commonwealth place in section 5) to a Commonwealth place were a
reference to a place owned by the Commonwealth.
(1) This Act does not, by implication, limit the application of the
Trade Practices Act 1974.
(2) For the purposes of section 50 of the Trade Practices Act 1974,
if:
(a) a person directly or indirectly acquires shares in either or both of
the following:
(i) the airport-lessee company for Sydney (Kingsford-Smith)
Airport;
(ii) the airport-lessee company for Sydney West Airport; and
(b) the acquisition has the effect that those companies become
subsidiaries of another company;
that effect, when considered in isolation from any other effect of the
acquisition, does not, and is not likely to, substantially lessen competition in
any market.
(3) For the purposes of subsection (2), a company (the subsidiary
company) is taken to be a subsidiary of another company
(the holding company) if, and only if, all the shares in the
subsidiary company are beneficially owned by the holding company.
(1) If:
(a) an aircraft at an airport site is interfering, or is likely to
interfere, with the operation of the airport; and
(b) the aircraft is in a state of disrepair or is apparently
abandoned;
an airport-operator company for the airport may, with the approval of the
Secretary to the Department, cause the aircraft to be moved to another part of
the airport, so long as that movement is carried out with reasonable
care.
(2) A person is not liable to an action or other proceeding, whether civil
or criminal, for or in relation to an act done in accordance with subsection
(1).
(3) The Secretary may, by writing, delegate to a person holding or
performing the duties of a Senior Executive Service office in the Department all
or any of the Secretary’s powers under this section.
(4) This section has effect in addition to, and not instead of,
regulations under the Air Services Act 1995.
(5) Subsection (1) does not limit, restrict or otherwise affect any right
or remedy the company would have if this section had not been enacted.
(6) In addition to its effect apart from this section, this section has
the effect it would have if each reference to an airport-operator company were,
by express provision, confined to an airport-operator company that is a
constitutional corporation.
(7) In this section:
aircraft includes an object that was designed or adapted for
use as an aircraft but is incapable of being so used because:
(a) one or more parts have been removed from it; or
(b) it is in a wrecked or damaged condition.
Senior Executive Service office has the same meaning as in
the Public Service Act 1922.
(1) The Minister may, by written notice given to an airport-operator
company for an airport:
(a) require that access be given to specified kinds of airport services
for specified kinds of defence-related purposes; or
(b) require that priority of access be given to specified kinds of airport
services for specified kinds of defence-related purposes.
(2) The manner in which that access, or priority of access, is to be given
is to be set out in the notice.
(3) Subject to section 243, the terms and conditions on which that access,
or priority of access, is to be given are to be set out in the notice.
(4) A company must comply with a notice given to it under subsection
(1).
(5) A contravention of subsection (4) is not an offence. However, a
contravention of subsection (4) is a ground for obtaining an injunction under
Part 15.
(6) In addition to other methods of giving a notice to a company, a notice
under subsection (1) may be given to a company by facsimile
transmission.
(7) In addition to its effect apart from this section, this section has
the effect it would have if each reference to an airport-operator company were,
by express provision, confined to an airport-operator company that is a
constitutional corporation.
(8) In this section:
airport service means a service provided at an airport, where
the service is necessary for the purposes of operating and/or maintaining civil
aviation services at the airport, and includes the use of facilities at the
airport for those purposes.
defence-related purposes means a purpose related to any of
the following:
(a) the defence of Australia;
(b) the operation of the Australian Defence Force in connection with the
defence of Australia;
(c) the operation of an aircraft owned by the armed forces of a foreign
country, where that operation is in accordance with an arrangement approved by
the Australian Defence Force;
(d) the management of an emergency or a disaster (whether natural or
otherwise), where that management involves the Australian Defence
Force.
Designated agency in relation to a notice
(1) A notice under subsection 242(1) must specify a Commonwealth agency as
the designated agency in relation to the notice.
(2) If a notice under subsection 242(1) relates to any of the following
purposes:
(a) the defence of Australia;
(b) the operation of the Australian Defence Force in connection with the
defence of Australia;
(c) the operation of an aircraft owned by the armed forces of a foreign
country, where the operation is in accordance with an arrangement approved by
the Australian Defence Force;
the notice must specify the Department of Defence as the designated agency
in relation to the notice.
(3) If a notice under subsection 242(1) relates to the management of an
emergency or a disaster (whether natural or otherwise), the notice may
specify:
(a) the Department of Defence; or
(b) any other Commonwealth agency that is involved in the management of
the emergency or disaster;
as the designated agency in relation to the notice.
Liability for loss or damage
(4) If:
(a) a notice under subsection 242(1) is given to an airport-operator
company for an airport; and
(b) a person covered by one of the following subparagraphs suffers loss or
damage in consequence of the giving of access, or the giving of priority of
access, in accordance with the notice:
(i) an airport-operator company for the airport;
(ii) a person who is a lessee of the airport-lessee company for the
airport;
(iii) a person who holds a licence relating to the airport lease for the
airport;
the Commonwealth is liable to pay to the person an amount equal to the loss
or damage.
(5) If:
(a) the person; and
(b) the head of the designated agency in relation to the notice (on behalf
of the Commonwealth);
do not agree on the amount of loss or damage mentioned in subsection (4),
the person may recover the amount of the loss or damage by action against the
Commonwealth in a court of competent jurisdiction.
(6) In determining the amount of any loss or damage mentioned in
subsection (4), regard must be had to anything done in mitigation of the loss or
damage (including any remedial work).
(7) A payment under subsection (4) or (5) is to be made out of amounts
appropriated by the Parliament for the purposes of the designated agency in
relation to the notice.
Compensation—constitutional safety-net
(8) If:
(a) apart from this section, the operation of section 242 would result in
the acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(9) If the Commonwealth and the person do not agree on the amount of the
compensation mentioned in subsection (8), the person may institute proceedings
in the Federal Court for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
Section 70 of the Defence Act 1903
(10) This section has effect despite anything in section 70 of the
Defence Act 1903.
Definitions
(11) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
Commonwealth agency means:
(a) a Department; or
(b) an agency or instrumentality of the Commonwealth.
designated agency, in relation to a notice, means the
Commonwealth agency specified in the notice as the designated agency in relation
to the notice.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
The following Acts are repealed:
Airports (Business Concessions) Act 1959
Airports (Surface Traffic) Act 1960.
The object of this Schedule is to define terms used in Part 3 (which
deals with ownership restrictions).
In Part 3 and this Schedule, unless the contrary intention
appears:
acquisition includes an agreement to acquire, but does not
include:
(a) an acquisition by will or by devolution by operation of law;
or
(b) an acquisition by way of enforcement of a loan security.
aggregate substantial interest, in relation to a trust
estate, has the meaning given by clause 13.
arrangement has the meaning given by clause 4.
associate has the meaning given by clause 5.
constituent document, in relation to a company,
means:
(a) the memorandum and articles of association of the company;
or
(b) any rules or other documents constituting the company or governing its
activities.
direct control interest has the meaning given by clause
12.
director includes any person occupying the position of
director of a company, by whatever name called.
discretionary trust means a trust where:
(a) a person (who may include the trustee) is empowered (either
unconditionally or on the fulfilment of a condition) to exercise any power of
appointment or other discretion; and
(b) the exercise of the power or discretion, or the failure to exercise
the power or discretion, has the effect of determining, to any extent, either or
both of the following:
(i) the identities of those who may benefit under the trust;
(ii) how beneficiaries are to benefit, as between themselves, under the
trust.
foreign citizen means an individual who is not an Australian
citizen.
foreign company means a company incorporated outside
Australia.
foreign government body means:
(a) a foreign State (within the meaning of the Foreign States
Immunities Act 1985); or
(b) a separate entity of such a foreign State (within the meaning of that
Act).
foreign person means:
(a) a foreign citizen not ordinarily resident in Australia; or
(b) a foreign government body; or
(c) a company where:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign government body; or
(iii) a foreign company;
holds a particular type of stake in the company of not less than 15%;
or
(d) a company where a group of 2 or more persons, each of whom
is:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign government body; or
(iii) a foreign company;
holds, in total, a particular type of stake in the company of not less
than 40%; or
(e) the trustee of a trust estate in which:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign government body; or
(iii) a foreign company;
holds a substantial interest; or
(f) the trustee of a trust estate in which 2 or more persons, each of whom
is:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign government body; or
(iii) a foreign company;
hold an aggregate substantial interest.
group includes:
(a) one person alone; or
(b) a number of persons, even if they are not in any way associated with
each other or acting together.
increase, in relation to a stake in a company, includes an
increase from a starting point of nil.
interest in a share has the meaning given by clause
8.
officer, in relation to a company, includes:
(a) a director, secretary or employee of the company; or
(b) a receiver and manager of any part of the undertaking of the company
appointed under a power contained in any instrument; or
(c) a liquidator of the company appointed in a voluntary
winding-up.
ordinarily resident in Australia has the meaning given by
clause 3.
ownership provisions means Part 3 and this
Schedule.
power to appoint a director of a company has a meaning
affected by clause 6.
relative, in relation to a person, means:
(a) the person’s spouse; or
(b) another person who, although not legally married to the person, lives
with the person on a bona fide domestic basis as the husband or wife of
the person; or
(c) a parent or remoter lineal ancestor of the person; or
(d) a son, daughter or remoter issue of the person; or
(e) a brother or sister of the person.
share, in relation to a company, means a share in the share
capital of the company, and includes:
(a) stock into which any or all of the share capital of the company has
been converted; or
(b) an interest in such a share or in such stock.
stake, in relation to a company, has the meaning given by
clause 11.
substantial interest, in relation to a trust estate, has the
meaning given by clause 13.
voting power has the meaning given by clause 10.
For the purposes of the ownership provisions, a foreign citizen is
ordinarily resident in Australia at a particular time if, and only
if:
(a) the foreign citizen has been in Australia during 200 or more days in
the period of 12 months immediately preceding that time; and
(b) at that time, one of the following subparagraphs applies:
(i) the foreign citizen is in Australia and has permission to remain in
Australia indefinitely;
(ii) the individual is not in Australia but has a right to re-enter
Australia and, on re-entry, to be granted permission to remain in Australia
indefinitely;
(iii) the individual is in Australia, is a New Zealand citizen, holds a
New Zealand passport and has a special category visa under section 32 of the
Migration Act 1958;
(iv) the individual is not in Australia, is a New Zealand citizen, holds a
New Zealand passport and, on re-entry to Australia, would have the right to be
granted a special category visa under section 32 of the Migration Act
1958.
(1) For the purposes of the ownership provisions, a person is taken to
have proposed to enter into an agreement or arrangement if the person takes part
in, or proposes to take part in, negotiations with a view to entering into the
agreement or arrangement.
(2) A reference in the ownership provisions to entering into an
agreement or arrangement includes a reference to altering or varying an
agreement or arrangement.
(3) A reference in the ownership provisions to entering into an
arrangement is a reference to entering into any formal or informal
scheme, arrangement or understanding, whether expressly or by implication and,
without limiting the generality of the foregoing, includes a reference
to:
(a) entering into an agreement; or
(b) creating a trust, whether express or implied; or
(c) entering into a transaction;
and a reference in the ownership provisions to an arrangement is to be
construed accordingly.
(4) A reference in the ownership provisions to an arrangement
does not include a reference to a moneylending agreement.
(1) For the purposes of the ownership provisions, the following persons
are associates of a person:
(a) a relative of the person;
(b) a partner of the person;
(c) a company of which the person is an officer;
(d) if the person is a company—an officer of the company;
(e) an employee or employer of the person;
(f) an officer of a company of which the person is an officer;
(g) an employee of an individual of whom the person is an
employee;
(h) the trustee of a discretionary trust where the person or another
person who is an associate of the person by virtue of another paragraph of this
subclause benefits, or is capable (whether by the exercise of a power of
appointment or otherwise) of benefiting, under the trust, either directly or
through any interposed companies, partnerships or trusts;
(i) a company whose directors are accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person;
(j) a company where the person is accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the company;
(k) a company in which the person has, apart from this paragraph, a
particular type of stake of not less than 15%;
(l) if the person is a company—a person who holds, apart from this
paragraph, a particular type of stake in the company of not less than
15%;
(m) a person who is, because of this subclause, an associate of any other
person who is an associate of the person (including a person who is an associate
of the person by any other application or applications of this
paragraph).
(2) If a person (the first person) enters, or proposes to
enter, into an arrangement with another person (the second person)
that relates to any of the following matters:
(a) the first person and the second person being in a position, by acting
together, to control any of the voting power in a company;
(b) the power of the first person and the second person, by acting
together, to appoint or remove a director of a company;
(c) the situation where one or more of the directors of a company are
accustomed or under an obligation, whether formal or informal, to act in
accordance with the directions, instructions or wishes of the first person and
the second person acting together;
then, the second person is taken to be an associate of the first person for
the purposes of the application of a provision of the ownership provisions in
relation to the matter concerned.
(1) A reference in the ownership provisions to a power to appoint a
director includes a reference to such a power whether exercisable with
or without the consent or concurrence of any other person.
(2) For the purposes of the ownership provisions, a person is taken to
have the power to appoint a director if:
(a) the person has the power (whether exercisable with or without the
consent or concurrence of any other person) to veto such an appointment;
or
(b) a person’s appointment as a director of the company follows
necessarily from that person being a director or other officer of the
first-mentioned person.
For the purposes of the ownership provisions, a person is entitled
to acquire anything if the person is absolutely or contingently entitled
to acquire it, whether because of any constituent document of a company, the
exercise of any right or option or for any other reason.
(1) Subject to this clause, a person holds an interest in a
share if the person has any legal or equitable interest in the
share.
(2) A person is taken to hold an interest in a share if:
(a) the person has entered into a contract to purchase the share;
or
(b) the person has a right (otherwise than because of having an interest
under a trust) to have the share transferred to the person or to the
person’s order (whether the right is exercisable presently or in the
future and whether or not on the fulfilment of a condition); or
(c) the person has a right to acquire the share, or an interest in the
share, under an option (whether the right is exercisable presently or in the
future and whether or not on the fulfilment of a condition); or
(d) the person is otherwise entitled to acquire the share or an interest
in the share; or
(e) the person is entitled (otherwise than because of having been
appointed as a proxy or representative to vote at a meeting of members of the
company or of a class of its members) to exercise or control the exercise of a
right attached to the share.
(3) Subclause (2) does not, by implication, limit subclause (1).
(4) A person is taken to hold an interest in a share even if the person
holds the interest in the share jointly with another person.
(5) For the purpose of determining whether a person holds an interest in a
share, it is immaterial that the interest cannot be related to a particular
share.
(6) An interest in a share is not to be disregarded only because
of:
(a) its remoteness; or
(b) the manner in which it arose; or
(c) the fact that the exercise of a right conferred by the interest is, or
is capable of being made, subject to restraint or restriction.
(1) For the purposes of the ownership provisions, the following interests
must be disregarded:
(a) an interest in a share held by a person whose ordinary business
includes the lending of money if the person holds the interest as a loan
security;
(b) an interest in a share held by a person, being an interest held by the
person because the person holds a prescribed office;
(c) an interest of a prescribed kind in a share, being an interest held by
such persons as are prescribed.
(2) For the purposes of the ownership provisions, if:
(a) a person holds an interest in a share as a loan security;
and
(b) the ordinary business of the person includes the lending of money;
and
(c) the loan security is enforced; and
(d) as a result of the enforcement of the loan security, the person
becomes the holder of the share; and
(e) the person holds the share for a continuous period (the holding
period) beginning at the time when the security was enforced;
the person’s interest in the share must be disregarded at all times
during so much of the holding period as occurs during whichever of the following
periods is applicable:
(f) the period of 90 days beginning when the security was
enforced;
(g) if the Minister, by written notice given to the person, allows a
longer period—the end of that longer period.
(1) A reference in the ownership provisions to the voting
power in a company is a reference to the total rights of shareholders to
vote, or participate in any decision-making, concerning any of the
following:
(a) the making of distributions of capital or profits of the company to
its shareholders;
(b) the constituent document of the company;
(c) any variation of the share capital of the company.
(2) A reference in the ownership provisions to control of the voting
power in a company is a reference to control that is direct or indirect,
including control that is exercisable as a result of or by means of arrangements
or practices:
(a) whether or not having legal or equitable force; and
(b) whether or not based on legal or equitable rights.
(3) If the percentage of total rights to vote or participate in
decision-making differs as between different types of voting or decision-making,
the highest of those percentages applies for the purposes of this
clause.
(4) If a company:
(a) is limited both by shares and by guarantee; or
(b) does not have a share capital;
this clause has effect as if the members or policy holders of the company
were shareholders in the company.
(1) A particular type of stake that a person holds in a
company at a particular time is the aggregate of:
(a) the direct control interests in the company of that type that the
person holds at that time; and
(b) the direct control interests in the company of that type held at that
time by associates of the person.
(2) In calculating the stake that a person holds in a company, a direct
control interest held because of subclause 12(5) is not to be counted under
paragraph (1)(a) to the extent to which it is calculated by reference to a
direct control interest in the company that is taken into account under
paragraph (1)(b).
(3) For the purpose of calculating the total of the stakes of a particular
type that a group of persons holds in a company, if a particular stake that a
person holds in a company would be counted more than once because the person is
an associate of one or more other persons in the group, that interest is to be
counted only once.
(1) A person holds a direct control interest in a company at
a particular time equal to the percentage of the total paid-up share capital of
the company in which the person holds an interest at that time.
(2) A person also holds a direct control interest in a
company at a particular time equal to the percentage of the voting power in the
company that the person is in a position to control at that time.
(3) A person also holds a direct control interest in a
company at a particular time equal to the percentage that the person holds, or
is entitled to acquire, at that time of the total rights to distributions of
capital or profits of the company to its shareholders on winding-up.
(4) A person also holds a direct control interest in a
company at a particular time equal to the percentage that the person holds, or
is entitled to acquire, at that time of the total rights to distributions of
capital or profits of the company to its shareholders, otherwise than on
winding-up.
(5) If:
(a) a person holds a particular type of direct control interest (including
a direct control interest that is taken to be held because of one or more
previous applications of this subclause) in a company (the first level
company); and
(b) the first level company holds the same type of direct control interest
in another company (the second level company);
the person is taken to hold that type of direct control interest in the
second level company equal to the percentage worked out using the
formula:
where:
first level percentage means the percentage of the direct
control interest held by the person in the first level company.
second level percentage means the percentage of the direct
control interest held by the first level company in the second level
company.
(1) For the purposes of the ownership provisions:
(a) a person is taken to hold a substantial interest in a
trust estate if the person, alone or together with an associate or associates,
holds a beneficial interest in not less than 15% of the corpus or income of the
trust estate; and
(b) 2 or more persons are taken to hold an aggregate substantial
interest in a trust estate if the persons, together with an associate or
associates, hold, in the aggregate, beneficial interests in not less than 40% of
the corpus or income of the trust estate.
(2) For the purposes of subclause (1), if, under the terms of a trust, a
trustee has a power or discretion as to the distribution of the income or corpus
of the trust estate to beneficiaries, each beneficiary is taken to hold a
beneficial interest in the maximum percentage of income or corpus of the trust
estate that the trustee is empowered to distribute to that
beneficiary.
(1) This clause applies if:
(a) a foreign company holds a particular type of direct control interest
in another company (the designated holding company); and
(b) the designated holding company holds the same type of direct control
interest in a particular airport-operator company (the eligible
airport-operator company); and
(c) if the eligible airport-operator company is the airport-lessee company
for Sydney (Kingsford-Smith) Airport or the airport-lessee company for Sydney
West Airport—the designated holding company is operated solely
for:
(i) the purpose of holding direct control interests in the airport-lessee
company for Sydney (Kingsford-Smith) Airport and the airport-lessee company for
Sydney West Airport; and
(ii) such other purposes (if any) as are prescribed; and
(d) if the eligible airport-operator company is neither the airport-lessee
company for Sydney (Kingsford-Smith) Airport nor the airport-lessee company for
Sydney West Airport—the designated holding company is operated solely for
the purpose of holding direct control interests in one or more airport-operator
companies; and
(e) the designated holding company is incorporated, or taken to be
incorporated, under the Corporations Law of a State or internal Territory;
and
(f) the designated holding company has a share capital.
(2) In determining, for the purposes of section 40, whether there is a
group of foreign persons who hold, in total, that type of stake in the eligible
airport-operator company of more than 49%:
(a) the stake of that type that the foreign company holds in the eligible
airport-operator company is to be calculated on the basis that the designated
holding company is taken not to be an associate of the foreign company;
and
(b) the designated holding company is taken not to be a foreign
company.
(3) Subclause 12(5) is to be disregarded for the purposes of subclause (1)
of this clause.
Note: Subclause 12(5) deals with deemed direct control
interests.