Air Services Amendment Bill 2016 - Commentary on Ministerial and Other Responses [2017] AUSStaCSBSD 80 (22 March 2017)

• Air Services Amendment Bill 2016
• Broad regulation-making power 9

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Air Services Amendment Bill 2016

Purpose	This bill seeks to amend the law in relation to air services by: • setting clear requirements for consultation and reporting on the part of Airservices Australia in relation to aircraft noise; and • establishing an independent Aircraft Noise Ombudsman and an independent Community Aviation Advocate
Sponsor	Mr Adam Bandt MP
Introduced	House of Representatives on 28 November 2016
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(iv)

2.14 The committee dealt with this bill in Scrutiny Digest No. 1 of 2017. Mr Bandt responded to the committee's comments in a letter dated 15 March 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Member's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Broad regulation-making power ^[9]

Initial scrutiny – extract

2.15 Proposed subsection 74B(1) provides that 'the regulations must prescribe a scheme for the establishment of an Aircraft Noise Ombudsman'. As such, this provision is a broad regulation making power which leaves all of the elements of the proposed Aircraft Noise Ombudsman scheme to delegated legislation (which is not subject to the same level of parliamentary scrutiny as primary legislation).

2.16 The committee will generally have scrutiny concerns where an entire regulatory scheme and/or significant matters, such as immunity from civil proceedings,^[10] are left to delegated legislation, unless a sound justification for the use of delegated legislation is provided.

2.17 Although proposed subsection 74B(2) sets out functions for the Ombudsman which must be included in the scheme and subsection 74B(3) provides that the scheme must provide for a number of specified matters, there is no information in the explanatory memorandum as to why the scheme should not be dealt with in the primary legislation.

2.18 The committee requests the Member's advice as to why it is considered necessary to leave the establishment of the proposed Aircraft Noise Ombudsman scheme to delegated legislation (rather than including at least the key elements of the scheme in the primary legislation).

Member's response

2.19 The Member advised:

The Air Services Amendment Bill 2016 addresses gaps in the laws relating to aircraft noise and its impacts on community amenity. It will ensure that communities affected by aircraft noise will have greater rights and stronger representation.
One outcome of this bill will be to establish an Aircraft Noise Ombudsman that is independent of Airservices Australia. The newly created independent Community Aviation Advocate and the independent Aircraft Noise Ombudsman will provide important representation for communities affected by aircraft noise.
The bill requires that the Aircraft Noise Ombudsman is established through regulations. In doing so, it lays out a number of requirements that must be met by these regulations.
The bill sets out in subsection 74B(2) the functions that must be granted to the Aircraft Noise Ombudsman.
The bill also sets out in subsection 74B(3) requirements that must be provided for in establishing the Aircraft Noise Ombudsman.

Committee comment

2.20 The committee thanks the Member for this response. The committee notes the Member's advice that proposed subsections 74B(2) and 74B(3) set out the functions that must be granted to the Aircraft Noise Ombudsman and the requirements that must be provided for in establishing the Aircraft Noise Ombudsman.

2.21 While these provisions provide some guidance in relation to the functions and potential powers of the proposed Aircraft Noise Ombudsman, the committee notes that the detail of how these powers will be exercised is left entirely to delegated legislation. For example, proposed subsection 74B(3) states that the regulations must provide for several significant matters, including the powers of the Ombudsman to obtain information and documents and the immunity of the Ombudsman from civil proceedings, however no detail in relation to these matters is provided on the face of the bill. As previously noted, the committee will generally have scrutiny concerns where significant matters are left to delegated legislation, unless a sound justification for the use of delegated legislation is provided.

2.22 The committee notes that the Member's response does not directly address the reason why such matters are appropriately left to be determined in the regulations.

2.23 In this instance, the committee leaves to the Senate as a whole the appropriateness leaving significant aspects of the establishment of the proposed Aircraft Noise Ombudsman scheme to delegated (rather than primary) legislation.

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[9] Schedule 1, item 8, proposed subsection 74B(1) of the Air Services Act 1995.

[10] See proposed paragraph 74B(3)(i).