Airports Act 1996

No. 42, 1996

An Act about airports

Contents

Airports Act 1996

No. 42, 1996

An Act about airports

[Assented to 9 October 1996]

The Parliament of Australia enacts:

Part 1—Introduction

1 Short title

This Act may be cited as the Airports Act 1996.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Objects

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 ensure diversity of ownership and control of certain major airports;

(h) to implement international obligations relating to airports.

4 Simplified outline

The following is a simplified outline of this Act:

5 Definitions

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 195.

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 195.

demand management scheme has the meaning given by section 201.

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.

pair of airport-operator companies has the meaning given by section 49.

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.

significant ANEF levels means a noise above 30 ANEF levels.

this Act includes the regulations.

unacceptable airline-ownership situation has the meaning given by section 44.

unacceptable cross-ownership situation has the meaning given by section 50.

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)

6 Sydney West Airport

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.

7 Meaning of core regulated 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.

8 Crown to be bound

(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.

9 External Territories

This Act extends to all the external Territories.

10 Extra-territorial operation

This Act extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.

Part 2—Leasing and management of airports

Division 1—Simplified outline

11 Simplified outline

The following is a simplified outline of this Part:

Division 2—Scope of Part

12 Airports to which Part applies

(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.

Division 3—Grant of airport leases

13 Commonwealth may grant airport lease

The Commonwealth may grant an airport lease under this section.

14 Rules about airport leases

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).

15 Termination of airport lease if lessee ceases to be a qualified company

(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.

16 Person may acquire only one airport lease

(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.

17 No simultaneous grant of leases to the same person

(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.

18 Sydney (Kingsford-Smith) Airport and Sydney West Airport to be under common ownership

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.

19 Only one lease per airport site

(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.

20 No simultaneous grant of leases relating to the same airport site

(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.

21 No grant of lease if Part 3 contravened

(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; or

(c) both:

(i) the company would become a member of a pair of airport-operator companies in the event of the grant; and

(ii) an unacceptable cross-ownership situation in relation to the pair would come into existence in the event of the grant.

(2) If a purported grant contravenes this section, it is of no effect.

22 Airport lease granted subject to existing interests in the land

(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.

Division 4—Restrictions on acquisition and transfer of airport leases

23 Restriction on acquisition of airport lease

(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.

24 No transfer of airport lease without approval of Minister

(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.

25 No transfer of lease if Part 3 contravened

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; or

(c) both:

(i) the company would become a member of a pair of airport-operator companies in the event of the transfer; and

(ii) an unacceptable cross-ownership situation in relation to the pair would come into existence in the event of the transfer.

26 No declaration of trust in respect of airport lease

(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.

27 Beneficial interest in airport lease must not be transferred independently of legal interest

(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.

28 Notification of acquisition of lease—enforcement of 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.

29 Re-transfer of lease—enforcement of loan security

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.

30 Termination of airport lease otherwise than under this Act

This Act does not, by implication, prevent an airport lease from being terminated otherwise than under a provision of this Act.

Division 5—Authority to use airport site as an airport

31 Authority to use airport site as an airport

(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.

Division 6—Restrictions on lessees

32 Airport-operator company must not carry on non-airport business

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.

33 Airport-management agreements

(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; or

(c) both:

(i) the company would become a member of a pair of airport-operator companies in the event that the agreement was entered into; and

(ii) an unacceptable cross-ownership situation in relation to the pair 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).

34 Regulations may prohibit subleases of airport leases

(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.

35 Regulations may prohibit licences relating to airport leases

(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.

Division 7—Lands Acquisition Act 1989 not to apply to anything done under this Part

36 Lands Acquisition Act 1989 not to apply to anything done under this Part

The Lands Acquisition Act 1989 does not apply to anything done under this Part.

Division 8—Entries in title registers

37 Entries in title registers

(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.

Part 3—Restrictions on ownership of airport-operator companies

Division 1—Simplified outline

38 Simplified outline

The following is a simplified outline of this Part:

Division 2—Definitions in Schedule

39 Definitions in Schedule

The Schedule sets out definitions of expressions used in this Part.

Division 3—49% limit on foreign ownership

40 Meaning of unacceptable foreign-ownership situation

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—sec the Schedule.

Note 2:  A person’s stake includes the interests of the person's associates—see the Schedule.

41. Acquisitions of shares

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.

42 Compliance by airport-operator company

(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.

43 Remedial orders

(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.

Division 4—5% limit on ownership by airlines

44 Meaning of unacceptable airline-ownership situation

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.

45 Acquisitions of shares

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.

46 Compliance by airport-operator company

(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.

47 Remedial orders

(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.

Division 5—Limits on cross-ownership of pairs of airport-operator companies

Subdivision A—Simplified outline

48 Simplified outline

The following is a simplified outline of this Division:

Subdivision B—Pairs of airport-operator companies

49 Pairs of airport-operator companies

For the purposes of this Act, a group of 2 airport-operator companies constitute a pair of airport-operator companies if:

(a) one of the companies is mentioned in a box in the left-hand column of the following table; and

(b) the other company is mentioned in the corresponding box in the right-hand column of the table.

For the purposes of this Act, the members of that pair are those companies.

Subdivision C—15% limit on cross-ownership

50 Meaning of unacceptable cross-ownership situation

For the purposes of this Act, an unacceptable cross-ownership situation exists in relation to a pair of airport-operator companies (the first company and the second company) and in relation to a particular person if:

(a) the person holds a particular type of stake in the first company of more than 15%; and

(b) the person holds any type of stake in the second company of more than 15%.

Note:  A person’s stake includes the interests of the person’s associates—see the Schedule.

51 Acquisitions of shares

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 a particular pair of airport-operator companies (the first company and the second company), that:

(i) an unacceptable cross-ownership situation comes into existence in relation to the pair and in relation to a person; or

(ii) if an unacceptable cross-ownership situation already exists in relation to the pair and in relation to a particular person—there is an increase in any type of stake held by the person in either the first company or the second 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.

52 Compliance by airport-operator companies

(1) A member of a pair of airport-operator companies must take all reasonable steps to ensure that an unacceptable cross-ownership situation does not exist in relation to that pair.

(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.

53 Remedial orders

(1) If an unacceptable cross-ownership situation exists in relation to a pair of airport-operator companies, the Federal Court may, on application by the Minister or a member of the pair, make such orders as the court considers appropriate for the purpose of ensuring that the 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.

Subdivision D—Practical control

54 Meaning of control

In this Subdivision:

control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

55 Minister may declare person to have practical control of an airport-operator company

Declaration

(1) If:

(a) the Minister is satisfied that:

(i) the directors of an airport-operator company are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person (either alone or together with associates); or

(ii) a person (either alone or together with associates) is in a position to exercise control over an airport-operator company; and

(b) the Minister is satisfied that:

(i) the person does not have any type of stake in the company; or

(ii) if the person has one or more types of stake in the company—each of those stakes is not more than 15%;

the Minister may declare that the person has practical control of the airport-operator company for the purposes of this Act.

Declaration has effect

(2) A declaration under this section has effect accordingly.

Revocation of declaration

(3) If:

(a) a declaration is in force under this section; and

(b) the Minister ceases to be satisfied of the matters referred to in paragraphs (1)(a) and (b);

the Minister must revoke the declaration.

Gazettal and notification of declaration

(4) If a declaration under this section is made or revoked, the Minister must arrange for a copy of the declaration or revocation:

(a) to be published in the Gazette; and

(b) to be given to the airport-operator company and the person concerned.

56 Requirement to relinquish practical control or reduce stake

(1) If a person:

(a) has practical control of a particular airport-operator company (the first company); and

(b) the first company is a member of a pair of airport-operator companies; and

(c) either of the following subparagraphs applies to the other member of the pair:

(i) the person has practical control of the other member;

(ii) the person has a particular type of stake in the other member of more than 15%;

the person must take such steps as are necessary to ensure that there is at least one member of the pair where both of the following paragraphs apply:

(d) both:

(i) the directors of the company are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and

(ii) the person (either alone or together with associates) is not in a position to exercise control over the company;

(e) either:

(i) the person does not have any type of stake in the company; or

(ii) if the person has one or more types of stake in the company—each of those stakes is not more than 15%.

The person must take those steps:

(f) within 90 days after receiving the copy of the most recent declaration under section 55 relating to the practical control of the first company or the other member of the pair; or

(g) if the Minister, by written notice given to the person, allows a longer period for compliance—before the end of that longer period.

Note:  Practical control has the meaning given by section 55.

(2) A person who knowingly or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 400 penalty units.

57 Remedial orders

(1) If a person:

(a) has practical control of a particular airport-operator company (the first company); and

(b) the first company is a member of a pair of airport-operator companies; and

(c) either of the following subparagraphs applies to the other member of the pair:

(i) the person has practical control of the other member;

(ii) the person has a particular type of stake in the other member of more than 15%;

the Federal Court may, on application by the Minister, make such orders as the court considers appropriate to ensure that there is at least one member of the pair where both of the following paragraphs apply:

(d) both:

(i) the directors of the company are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and

(ii) the person (either alone or together with associates) is not in a position to exercise control over the company;

(e) either:

(i) the person does not have any type of stake in the company; or

(ii) if the person has one or more types of stake in the company—each of those stakes is not more than 15%.

Note: Practical control has the meaning given by section 55.

(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 Minister’s 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.

Division 6—Head office of airport-operator company and citizenship/residency of directors of airport-operator company

58 Head office to be in Australia

(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.

59 Majority of directors must be Australian citizens or Australian residents

(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.

Division 7—Record-keeping and giving of information

60 Record-keeping and giving of information

(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 6 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/control matter:

(a) whether a person holds a particular type of stake in an airport-operator company and, if so, the level of that stake;

(b) whether the directors of an airport-operator company are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person (either alone or together with associates);

(c) whether a person (either alone or together with associates) is in a position to exercise control over an airport-operator company.

For this purpose, control has the same meaning as in section 54.

Division 8—Concurrent operation of State/Territory laws

61 Concurrent operation of State/Territory laws

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.

Division 9—Validity of acts done in contravention of this Part

62 Validity of acts done in contravention of this Part

An act is not invalidated by the fact that it constitutes an offence against this Part.

Division 10—Acquisition of property

63 Acquisition of property

(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.

Part 4—Anti-avoidance

64 Simplified outline

The following is a simplified outline of this Part:

65 Anti-avoidance—assets etc.

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.

66 Anti-avoidance—airport-management agreements

(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.

Part 5—Land use, planning and building controls

Division 1—Simplified outline

67 Simplified outline

The following is a simplified outline of this Part:

Division 2—Scope of Part

68 Airports to which Part applies

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.

Division 3—Airport master plans

69 Simplified outline

The following is a simplified outline of this Division:

70 Final master plans

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.

71 Contents of draft or final master plan

(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 plans, developed following consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for

managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and

(f) the airport-lessee company’s assessment of environmental issues that might reasonably be expected to be associated with the implementation of the plan; and

(g) the airport-lessee company’s plans for dealing with the environmental issues mentioned in paragraph (f) (including plans for ameliorating or preventing environmental impacts); and

(h) if a draft environmental strategy for the airport has been approved—the date of that approval; and

(i) such other matters (if any) as are specified in the regulations. Paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) do not, by implication, limit paragraph (j).

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 plans, developed following consultations with the airlines that use the airport, local government bodies in the vicinity of the airport and the Department of Defence, for managing aircraft noise intrusion

in areas forecast to be subject to exposure above the significant ANEF levels; and

(f) the airport-lessee company’s assessment of environmental issues that might reasonably be expected to be associated with the implementation of the plan; and

(g) the airport-lessee company’s plans for dealing with the environmental issues mentioned in paragraph (f) (including plans for ameliorating or preventing environmental impacts); and

(h) if a draft environmental strategy for the airport has been approved—the date of the approval; and

(j) such other matters (if any) as are specified in the regulations.

Paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) do not, by implication, limit paragraph (j).

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 72.

(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).

(8) In developing plans referred to in paragraph (2)(e) and (3)(e), an airport-lessee company must have regard to Australian Standard AS2021—1994 (“Acoustics — Aircraft noise intrusion — Building siting and construction”).

(9) Subsection (8) does not, by implication, limit the matters to which regard may be had.

72 Planning period

A draft or final master plan must relate to a period of 20 years. This period is called the planning period.

73 Assumption of continuity of lease

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.

74 Plan does not lapse when lease transferred

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.

75 Draft master plan to be given to Minister after acquisition or grant of airport lease

(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.

76 New draft master plan to be submitted before expiry of old plan

(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.

77 Duration of final master plan

(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 78 (which deals with replacement of plans).

78 Replacement of final master plan

(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) within 180 days after the day on which the notice was given; or

(b) 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.

79 Public comment

(1) Before giving the Minister a draft master plan for an airport under section 75, 76 or 78, 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.

80 Consultations

(1) This section applies if:

(a) an airport-lessee company gives the Minister a draft master plan under section 75, 76 or 78; and

(b) before the publication under section 79 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.

81 Approval of draft by Minister

(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.

82 Transfer of airport lease during approval process

(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.

83 Effect of approval

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.

84 Minor variation of final master plan

(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.

85 Notification of matters that may affect the achievement of final master plan

(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.

86 Publication of final master plan or variation of final master plan

(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) he 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 is guilty of an offence punishable on conviction by a fine not exceeding 250 penalty units.

87 Transitional—adoption of FAC documents

(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 71 and 72.

(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 79.

(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 86.

Division 4—Major development plans

88 Simplified outline

The following is a simplified outline of this Division:

89 Meaning of major airport development

(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 that is likely to have significant environmental or ecological impact; or

(n) if a final environmental strategy is in force for the airport—a development which affects an area identified as environmentally significant in the environmental strategy; or

(o) a development of a kind specified in the regulations.

(2) Paragraphs (1)(a), (b), (c), (d), (e), (f), (g), (h), (j). (k), (l), (m) and (n) do not, by implication, limit paragraph (1)(o).

(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.

90 Major airport development must not be carried out except in accordance with an approved major development plan

(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 2000 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 or company that intentionally or recklessly contravenes subsection (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding 400 penalty units.

91 Contents of major development plan

(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) the airport-lessee company’s plans, developed following consultations with the airlines that use the airport, local government bodies in the vicinity of the airport and—if the airport is a joint user airport—the Department of Defence, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and

(g) 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

(h) the airport-lessee company’s assessment of the environmental impacts that might reasonably be expected to be associated with the development; and

(j) the airport-lessee company’s plans for dealing with the environmental impacts mentioned in paragraph (h) (including plans for ameliorating or preventing environmental impacts); and

(k) if a draft environmental strategy has been approved—the date of the approval; and

(l) such other matters (if any) as are specified in the regulations.

(2) Paragraphs (1)(a) to (k) (inclusive) do not, by implication, limit paragraph (1)(l).

(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).

(6) In developing plans referred to in paragraph (1)(f), an airport-lessee company must have regard to Australian Standard AS2021—1994 (“Acoustics — Aircraft noise intrusion — Building siting and construction”).

(7) Subsection (6) does not, by implication, limit the matters to which regard may be had.

92 Public comment

(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.

93 Consultations

(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 92 of a notice about the plan, the company consulted a person covered by any of the following subparagraphs:

(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

(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.

94 Approval of major development plan by Minister

(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).

95 Minor variation of major development plan

(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.

96 Publication of major development plan or variation of major development plan

(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 is guilty of an offence punishable on conviction by a fine not exceeding 250 penalty units.

Division 5—Building control

Subdivision A—Simplified outline

97 Simplified outline

The following is a simplified outline of this Division:

Subdivision B—Interpretation

98 Interpretation

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.

Subdivision C—Building approvals

99 Building activities not to be carried out without approval

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.

100 Regulations about building approvals

(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.

101 Building approval to be consistent with final master plan and major development plan

(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.

102 Offence of contravening conditions

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.

103 Remedial directions

(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.

Subdivision D—Certificates of fitness

104 Certificates of fitness

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.

105 Eligible alterations

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).

106 Requirement for certificate of fitness

(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 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.

107 Regulations about certificates of fitness

(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.

108 Offence of contravening conditions

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.

109 Remedial directions

(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.

110 Transitional—buildings and structures in existence when airport lease first granted

(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 106, 108 and 109 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.

Division 6—Miscellaneous

111 Infringement notices

(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.

112 Exclusion of State/Territory laws

(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).

Part 6—Environmental management

Division 1—Simplified outline

113 Simplified outline

The following is a simplified outline of this Part:

Division 2—Environment strategies

114 Airports to which Division applies

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.

115 Final environment strategies

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 128.

116 Contents of draft or final environment strategy

(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 areas if any within the airport site which the airport-lessee company, in consultation with State or Territory and Federal conservation bodies, identifies are environmentally significant; and

(c) the sources of environmental impact associated with airport operations; and

(d) 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

(e) the time frames for completion of those studies and reviews and for reporting on that monitoring; and

(f) 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

(g) the time frames for completion of those specific measures; and

(h) details of the consultations undertaken in preparing the strategy (including the outcome of the consultations); and

(j) such other matters (if any) as are specified in the regulations.

Paragraphs (a) to (h) (inclusive) do not, by implication, limit paragraph (j).

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 areas if any within the airport site which the airport-lessee company, in consultation with State or Territory and Federal conservation bodies, identifies are environmentally significant; and

(c) the sources of environmental impact associated with civil aviation operations at the airport; and

(d) 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

(e) the time frames for completion of those studies and reviews and for reporting on that monitoring; and

(f) 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

(g) the time frames for completion of those specific measures; and

(h) details of the consultations undertaken in preparing the strategy (including the outcome of the consultations); and

(j) such other matters (if any) as are specified in the regulations.

Paragraphs (a) to (h) (inclusive) do not, by implication, limit paragraph (j).

(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 117.

(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.

117 Strategy period

A draft or final environment strategy must relate to a period of 5 years. This period is called the strategy period.

118 Assumption of continuity of lease

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.

119 Strategy does not lapse when lease transferred

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.

120 Draft environment strategy to be given to Minister after acquisition or grant of airport lease

(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.

121 New draft environment strategy to be submitted before expiry of old strategy

(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.

122 Duration of final environment strategy

(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 123 (which deals with replacement of strategies).

123 Replacement of final environment strategy

(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) within 180 days after the day on which the notice was given; or

(b) 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 (1) is guilty of an offence punishable on conviction by a fine not exceeding 250 penalty units.

124 Public comment

(1) Before giving the Minister a draft environment strategy for an airport under section 120, 121 or 123, 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.

125 Consultations

(1) This section applies if:

(a) an airport-lessee company gives the Minister a draft environment strategy under section 120, 121 or 123; and

(b) before the publication under section 124 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.

126 Approval of draft by Minister

(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 the carrying out of the strategy would be likely to have on:

(i) biota or habitat; or

(ii) natural or heritage values; or

(iii) sites of significance to Aboriginal or Torres Strait Islander people;

(c) the effect that carrying out the strategy would be likely to have on noise exposure levels;

(d) 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.

127 Transfer of airport lease during approval process

(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.

128 Effect of approval

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.

129 Minor variation of final environment strategy

(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.

130 Compliance with final environment strategy

(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.

131 Publication of final environment strategy or variation of final environment strategy

(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.

Division 3—Environmental standards at airports

132 Regulations about environmental standards at airports

(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) impacts on biota or habitat; or

(c) interference with sites of heritage value; or

(d) interference with sites of significance to Aboriginal or Torres Strait Islander people; or

(e) the emission of noise generated at airport sites (other than noise generated by aircraft in flight); or

(f) 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 133 does not, by implication, limit subsection (1) of this section.

133 Regulations about monitoring, and remedying breaches of, environmental standards at airports

(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 contraventions of section 132 regulations relating to impacts on biota or habitat; or

(c) monitoring, mitigating, remedying or rectifying contraventions of section 132 regulations relating to interference with sites of heritage value; or

(d) monitoring, mitigating, remedying or rectifying contraventions of section 132 regulations relating to

interference with sites of significance to indigenous people; or

(e) monitoring, mitigating, remedying or rectifying the emission of noise generated at airport sites (other than noise generated by aircraft in flight); or

(f) monitoring, mitigating, remedying or rectifying contraventions of section 132 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 132 does not, by implication, limit subsection (1) of this section.

134 Remedying breaches of environmental standards—recovery of expenses by airport-operator company

(1) If:

(a) a person has contravened regulations made for the purposes of section 132 or 133; 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.

135 Remedying breaches of environmental standards—recovery of expenses by the Commonwealth

(1) If:

(a) a person has contravened regulations made for the purposes of section 132 or 133; 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.

136 Operation of State/Territory laws

(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 132(1)(a), (b), (c), (d), (e) or (f) or 133(1)(a), (b), (c), (d), (e) or (f).

Note: A law may be specified by name, by inclusion in a specified class or in any other way.

137 Severability

(1) This section applies to regulations made for the purposes of section 132 or 133.

(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.

Division 4—Infringement notices

138 Infringement notices

(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 133;

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.

Part 7—Accounts and reports of airport-operator companies

Division 1—Simplified outline

139 Simplified outline

The following is a simplified outline of this Part:

Division 2—Scope of Part

140 Airports to which Part applies

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.

Division 3—Accounts

141 Preparation and retention of accounts

(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