EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 8

 

 

Subject - Airports Act 1996

 

Airports Amendment Regulations 2009 (No. 1)

 

Section 252 of the Airports Act 1996 (the Act) provides that the Governor-General may make regulations prescribing matters required, or permitted by the Act to be prescribed or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

Subsection 141(2) of the Act relevantly provides that a company must prepare such accounts and statements as specified in the regulations. Section 145 provides that regulations may require an airport‑operator company to give written reports to the Australian Competition and Consumer Commission (ACCC).

 

The Airport Regulations 1997 (the Principal Regulations) refer to the Corporations Law when prescribing the form of the financial statements airport-lessee and airport-operator companies are required to prepare under Part 7 of the Principal Regulations. The Corporations Law has been superseded by the Corporations Act 2001 (Corporations Act), and the amendments update the Principal Regulations to reflect that change.

 

The amendments to Part 7 of the Principal Regulations:

-         change references from Corporations Law to the Corporations Act to reflect the current corporations legislation and accounting standards;

-         change references to specific provisions of the Corporations Law to the corresponding Corporations Act provisions or accounting standard;

-         recast the Part in line with current drafting practices; and

-         remove duplicate provisions.

 

Details of the amendments are set out in the Attachment.

 

Except for Treasury, other Government agencies and airport stakeholders have not been consulted as the amendments are minor and do not substantially alter existing arrangements.

 

The new Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The new Regulations commence on the day after registration on the Federal Register of Legislative Instruments.

 

Authority: Section 252 of the Airports Act 1996

 

 

 

 

 

 

ATTACHMENT

 

Details of the Airports Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Airports Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the amendments contained in Schedule 1 to commence on the day after registration.

 

Regulation 3 – Amendment of Airports Regulations 1997

 

This regulation provides that the Airports Regulations 1997 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Items [1] to [4] – subparagraph 2.03(1)(a)(ii), regulation 3.21 and paragraph 7.01(1)(a)

 

Subparagraph 2.03(1)(a)(ii), regulation 3.21 and paragraph 7.01(1)(a) of the Principal Regulations refer to Corporations Law. These items substitute ‘Corporations Act 2001’ (Corporations Act) for ‘Corporations Law’.

 

Item [5] – paragraph 7.01(1)(b), including the note

 

Paragraph 7.01(1)(b) of the Principal Regulations ensures that Part 7 applies to all specified airports irrespective of any exemption under the Corporations Act. This item also substitutes ‘Corporations Act 2001’ for ‘Corporations Law’.

 

Items [6] to [7] – paragraph 7.01(2)(a)

 

Paragraph 7.01(2)(a) of the Principal Regulations makes clear that nothing in the Part requires an airport-operator company to prepare half-yearly (within the meaning of subsection 50A(5) of the Corporations Law) ‘accounts or financial statements’ unless the half-year is the whole period during which the company was an airport-operator company. These items substitute ‘reports’ for ‘accounts or financial statements’ to bring the terminology in line with the Corporations Act, and also substitutes subsection 323D(5) of the Corporations Act 2001 for subsection 50A(5) of the Corporations Law, which contains the appropriate Corporations Act definition of half-year.

 

Items [8] to [10] – regulation 7.02

 

Regulation 7.02 of the Principal Regulations has definitions for ‘account’ and ‘financial statements’. These items omit ‘accounts’; insert definitions for ‘directors’ report’, ‘financial record’ and ‘financial report’; and change the definition of ‘financial statement’ to bring the terminology in line with the Corporations Act.

 

Item [11] – regulation 7.03

 

Regulation 7.03 of the Principal Regulations sets out what financial information airport-lessee and airport-operator companies must prepare annually. This item recasts regulation 7.03 to be consistent with the Corporations Act, to reflect current drafting practices and remove duplication.

 

The Corporations Act uses different terminology when referring to the reports required under the previous Corporations Law. Fundamentally, the type of information required in the reports is the same; however, there are some additional documents required to attest to the veracity of the information contained in the reports.

 

The new Regulations omit subregulations 7.03(2A) and (2B) of the Principal Regulations to avoid duplication. Currently, these subregulations restate reporting requirements which will be provided for in the definition of a ‘financial report’ in the new Regulations. A ‘financial report’ is defined in section 9 of the Corporations Act to mean a financial report prepared pursuant to Chapter 2M of that Act. Chapter 2M enumerates the content required in a financial report. In light of this, there is no need for current subregulations 7.03(2A) and (2B) to remain.

 

The key characteristics from regulation 7.03 of the Principal Regulations have been retained:

-         an airport-operator company must not consolidate its reports with a parent company;

-         an airport-lessee company must prepare consolidated reports for itself and all airport-management companies;

-         the reports must separate costs and revenue in relation to the provision of aeronautical and non-aeronautical services and facilities;

-         costs and revenue in relation to the provision of aeronautical services and facilities include those recovered directly or indirectly from airlines (that is, those recovered through third party suppliers, such as fuel throughput levies)

-         the reports must be compliant with the Corporations Act and the accounting standards; and

-         cost and revenue in relation to domestic terminal leases are not to be included in the reports.

 

Item [12] – regulation 7.04

 

Regulation 7.04 of the Principal Regulations prescribes the form the reports must take. This item omits this regulation because the recasting of regulation 7.03 implicitly requires that the form of the reports be consistent with the Corporations Act and any relevant accounting standard.

 

Items [13] to [16] – regulation 7.05

 

Regulation 7.05 prescribes 90 days after the accounting period as the timeframe within which an auditor’s certificate must be given to the ACCC. These items substitute:

·        ‘a financial statement’ with ‘financial statements’;

·        ‘accounts and financial statements’ with ‘reports prepared for regulation 7.03’; and

·        ‘Corporations Law for an auditor’s report under that Law’ with ‘Corporations Act 2001 for an auditor’s report under Part 2M.3 of that Act’.

 

These changes update the terminology in the Principal Regulations to reflect the changes in the corporations legislation with the replacement of the Corporations Law by the Corporations Act.