Airports (Protection of Airspace) Amendment Regulations 2017 [F2017L00969]-Concluded matters [2017] AUSStaCSDLM 372 (18 October 2017)

• Chapter 2
• Concluded matters

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Chapter 2

Concluded matters

This chapter sets out matters which have been concluded following the receipt of additional information from ministers.

Correspondence relating to these matters is available on the committee's website.^[1]

Instrument	Airports (Protection of Airspace) Amendment Regulations 2017 [F2017L00969]
Purpose	Amends the Airports (Protection of Airspace) Regulations 1996 to exempt certain controlled activities on and around the Sydney West Airport site during airport construction and prior to the commencement of air transport operations
Authorising legislation	Airports Act 1996
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) The time to give a notice of motion to disallow expired on 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 11 of 2017

The committee previously commented in relation to two matters as follows:

Manner of incorporation

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

Item 11 of the regulations inserts new section 16A into the Airports (Protection of Airspace) Regulations 1996 which declares controlled activities in three classes to be exempt from Division 4 of Part 12 of the Airports Act 1996 (the Act). With reference to the above, the committee notes that new subsection 16A(4) appears to incorporate an airport plan for the Sydney West Airport (SWA). While the explanatory statement (ES) notes that the Minister for Urban Infrastructure determined an airport plan for SWA under section 96B(1) of the Act on 5 December 2016, neither the instrument nor the ES state the manner in which this document is incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at a particular time). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[2]

The committee requested the advice of the minister in relation to the above.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available (i.e. without cost) to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that the instrument appears to incorporate an airport plan for the Sydney West Airport (SWA), and that the Minister for Urban Infrastructure determined an airport plan for SWA under section 96B(1) of the Act on 5 December 2016. However, the ES does not contain any further description of this document, or indicate how the document may be obtained.

In this instance, the committee notes that the current airport plan for the SWA is available for free online.^[3] Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[4]

The committee drew the above to the minister's attention.

Minister's response

The Minister for Urban Infrastructure advised:

1. Manner of incorporation
The airport plan is a non-legislative instrument that authorises the initial airport development for SWA. As the airport plan for SWA is not a legislative instrument, subsections 14(1)(b) and 14(2) of the Legislation Act 2003 (the Legislation Act) have the effect that the Amending Regulations can only operate in relation to the airport plan for SWA as in force at the time the Amending Regulations commenced (27 July 2017), and not by incorporating the airport plan 'as in force or existing from time to time'.
I note the Committee's comments on facilitating the public's ability to understand the operation of the Amending Regulations. For this reason, I instructed the Department of Infrastructure and Regional Development to amend the Explanatory Statement (ES) to explicitly state that the exemption provided for under 16A(4) relates to a controlled activity that is, or comprises part of, a development covered by Part 3 of the airport plan for SWA as in force at the date of commencement of the Amending Regulations.
2. Access to incorporated document
I understand the importance of ensuring persons interested in or affected by an instrument have adequate access to its terms, including any incorporated documents. As the Committee has noted, the airport plan for SWA is readily available for free online. In line with best-practice and consistent with section 15J of the Legislation Act, I instructed the Department to amend the ES to include the website where the airport plan for SWA can be accessed.
A marked up copy of the revised ES, as amended by the Department, to address the issues raised by the Committee is enclosed for your information.I understand the replacement ES will shortly be registered on the Federal Register of Legislation.
Relevant extract from the replacement ES:
The Minister for Urban Infrastructure determined an airport plan for SWA under section 96B(1) of the Act on 5 December 2016. The airport plan for SWA is a transitional planning instrument that authorises the intial airport development for SWA and specifies the Australian Government's requirements for the airport. This exemption relates to a controlled activity that is, or comprises part of, a development covered by Part 3 of the airport plan for SWA as in force at the date of commencement of the Amending Regulations.
...The airport plan for SWA is available to download free of charge at http://westernsydneyairport.gov.au/.

Committee's response

The committee thanks the minister for his response and notes that the replacement ES received by the committee has now been registered and published on the Federal Register of Legislation.

The committee has concluded its examination of the instrument.

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[1] See www.aph.gov.au/regords_monitor.

^[2] See Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.

^[3] See Department of Infrastructure and Regional Development, Airport Plan, available at http://westernsydneyairport.gov.au/about/airport-plan/index.aspx

(accessed 4 September 2017).

^[4] See Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.