Statutory Rules 1997   No. 81

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Airports Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Airports Act 1996.

Dated 5 February 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

JOHN SHARP

 [Draft Only - not for Signature] 

Minister for Transport and Regional Development

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PART 1—PRELIMINARY

Citation

 1.01. These Regulations may be cited as the Airports Regulations.

[Note: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.].

Interpretation

 1.02. In these Regulations:

“Act” means the Airports Act 1996.

Airport sites

 1.03. For the purposes of the definition of “airport site” in section 5 of the Act, each of the following places is declared to be an airport site:

 (a) the place that is known as Melbourne (Tullamarine) Airport and that comprises the parcels of land specified in Part 1.1 of that Schedule;

 (b) the place that is known as Brisbane Airport and that comprises the parcels of land specified in Part 1.2 of that Schedule;

 (c) the place that is known as Perth Airport and that comprises the parcels of land specified in Part 1.3 of that Schedule.

PART 2—LEASING AND MANAGEMENT OF AIRPORTS

Interpretation

 2.01 In this Part:

“associate” has the meaning given by clause 5 of the Schedule to the Act.

Grounds for refusing to approve the transfer of an airport lease

 2.02. For paragraph 24 (3) (a) of the Act, the following grounds are specified:

 (a) that the proposed transferee does not have the financial strength and managerial capabilities necessary to:

 (i) operate and develop the airport over the remainder of the lease period; or

 (ii) provide high-quality airport services consistently with the sound development of civil aviation;

 (b) that the proposed transfer would if it took place, be destructive of diversity in the ownership of Australian airports;

 (c) that if the proposed transfer takes place, the employees of the transferor company will be unfairly or inequitably treated, or their accrued benefits not preserved;

 (d) that the Minister is satisfied that the proposed transferee will not act responsibly in matters concerning the environment;

 (e) that the Minister is satisfied that that the proposed transferee will not be responsive to:

 (i) the needs of the region in which the airport is located; or

 (ii) the interests of airport users.

Grounds for refusing to approve an airport-management company

 2.03. (1) For subsection 33 (4) of the Act, the ground is specified that the airport-management agreement into which the company proposes to enter does not comply with subregulation (2).

 (2) An airport-management agreement complies with this subregulation if it:

 (a) gives the airport-lessee company an option to purchase the assets of the airport-management company:

 (i) when the airport-management agreement is terminated; or

 (ii) if, under the Corporations Law, the airport-management company goes into liquidation or is wound up or if a liquidator is appointed (whether the liquidation is voluntary, provisional or otherwise and whether or not the liquidator is appointed provisionally or otherwise); and

 (b) provides that, if the airport lease is terminated for any reason, the Minister may direct that the Commonwealth, or a person nominated by the Minister, is taken to be substituted for the airport-lessee company as a party to the agreement; and

 (c) provides that, if the airport lease is terminated for any reason, and if the Minister gives a direction referred to in paragraph (b), the agreement continues to have effect according to its terms, except that:

 (i) the Commonwealth or person nominated by the Minister is to be taken to be a party to the agreement in the place of the airport-lessee company; and

 (ii) the Commonwealth or person nominated by the Minister is not liable under the agreement for liabilities arising before the Commonwealth or person is taken to have become a party to it; and

 (iii) the Commonwealth or person may terminate the agreement at any time, subject to the payment of fair and reasonable compensation; and

 (d) provides that the airport-lessee company may not terminate the agreement unless it gives the Secretary written notice, at least 21 days before the intended date of the termination, of its intention to do so, and gives the Secretary any information that the Secretary reasonably requires about the termination; and

 (e) either:

 (i) provides that the airport-lessee company may terminate the agreement only upon reasonable notice and for reasonable cause; or

 (ii) does not provide that the airport-lessee company may terminate the agreement at any time without cause; and

 (f) provides for financial information to be given by the airport-management company to the airport-lessee company to enable the airport-lessee company to comply with Part 7 of the Act (relating to accounts and reports).

 (3) In paragraph (2) (a):

“assets” of an airport-management company includes:

 (a) non-fixed plant and equipment, vehicles, machinery, office equipment, or computer systems owned by the airport-management company and used exclusively at, or in relation to, the airport concerned; and

 (b) any interest of the airport-management company as lessee or bailee of equipment referred to in paragraph (a); and

 (c) any interest of the airport-management company in a contract for the supply of goods and services for use at, or in relation to, the airport; and

 (d) any other tangible personal property of the airport-management company used in connection with the management, operation or maintenance of the airport; and

 (e) any interest of the airport-management company in intellectual property including computer software, or any right of the airport-management company to use computer software, in connection with the management, operation or maintenance of the airport.

Prohibited kinds of subleases and licences

 2.04. (1) For subsection 34 (1) of the Act, subleases of the following kinds are prohibited:

 (a) a sublease under which the sublessee is not:

 (i) a constitutional corporation: or

 (ii) a bank other than a bank established or operated by a State or Territory; or

 (iii) the Commonwealth or an authority of the Commonwealth; or

 (iv) a State or Territory government or an authority of a State or Territory government; or

 (v) if the lease is for the sole purpose of operating a single site retail business—an individual;

 (b) a sublease that imposes an obligation inconsistent with an obligation under the Act;

 (c) a sublease that is not automatically terminated upon the creation of an interest in the sublease in favour of a person who is, either alone or with 1 or more associates, in a position to exercise control over either or both of:

 (i) the operation of the whole, or a substantial part of, the airport concerned; or

 (ii) the direction to be taken in the development of the whole, or a substantial part of, the airport;

 (d) a sublease for the purpose of residential development;

 (e) a sublease for a purpose inconsistent with the continued use as an airport of the airport site concerned, as set out in the final master plan for the airport site;

 (f) a sublease of premises within the airport site for the purpose of prostitution;

 (g) a sublease to a State or Territory government or an authority of a State or Territory government, except a sublease approved by the Secretary for this paragraph; and

 (h) a sublease that is an airport-management agreement within the meaning given by subsection 33 (7) of the Act, unless the sublessee is a qualified company and has been approved by the Minister under paragraph 33 (1) (a) of the Act;

 (i) a sublease that does not contain a provision under which any further sublease of the sublease must be subject to the conditions in this subregulation.

 (2) For subsection 35 (1) of the Act, licences of the following kinds are specified:

 (a) a licence under which the licensee is not:

 (i) a constitutional corporation: or

 (ii) a bank other than a bank established or operated by a State or Territory; or

 (iii) the Commonwealth or an authority of the Commonwealth; or

 (iv) a State or Territory government or an authority of a State or Territory government; or

 (v) if the licence is for the sole purpose of operating a single site retail business—an individual;

 (b) a licence that imposes an obligation inconsistent with an obligation under the Act;

 (c) a licence that is not automatically terminated upon the creation of an interest in the licence in favour of a person who is, either alone or with 1 or more associates, in a position to exercise control over either or both of:

 (i) the operation of the whole, or a substantial part of, the airport concerned; or

 (ii) the direction to be taken in the development of the whole, or a substantial part of, the airport;

 (d) a licence for the purpose of residential development;

 (e) a licence for a purpose inconsistent with the continued use as an airport of the airport site concerned, as set out in the final master plan for the airport site;

 (f) a licence to use premises within the airport site for the purpose of prostitution;

 (g) a licence to a State or Territory government or an authority of a State or Territory government, except a licence approved by the Secretary for this paragraph;

 (h) a licence that is an airport-management agreement within the meaning given by subsection 33 (7) of the Act, unless the licensee is a qualified company and has been approved by the Minister under paragraph 33 (1) (a) of the Act;

 (i) a licence that does not contain a provision under which any sublicence of the licence must be subject to the conditions in this subregulation.

 (3) In considering whether to approve a sublease or licence under paragraph (1) (g) or (2) (g), the Secretary must take into account:

 (a) whether the activity for which the sublease or licence is granted will be carried out on a fully commercial basis; and

 (b) whether the State or Territory government or authority has given a written undertaking to comply with the laws of the Commonwealth (including any applied State or Territory law); and

 (c) whether an obligation or restriction imposed by a law of the State or Territory will be inconsistent with the Act, these Regulations or the sublease or licence.

 (4) For paragraphs (1) (g) and (2) (g), the Secretary may approve a sublease or licence, respectively, to a class of State or Territory government authorities or to a State or Territory government in relation to a class of functions of the government.

 (5) In paragraphs (1) (f) and (2) (f):

“prostitution” means the provision by a person to, or for, another person (whether or not the 2 persons are of different sexes) of sexual services for payment or reward.

PART 5—LAND USE, PLANNING AND BUILDING CONTROLS

Interpretation

 5.01. In this Part:

“Transitional Act” means the Airports (Transitional) Act 1996.

Contents of draft or final master plan

 5.02. (1) For paragraphs 71 (2) (j) and (3) (j) of the Act, the following matters are specified, that is, any change to the OLS or PANS-OPS surfaces for the airport concerned that is likely to result if development proceeds in accordance with the master plan.

 (2) For section 71 of the Act, an airport master plan must, in relation to the landside part of the airport, where possible, describe proposals for land use and related planning, zoning or development in an amount of detail equivalent to that required by, and using terminology (including definitions) consistent with that applying in, land use planning, zoning and development legislation in force in the State or Territory in which the airport is located.

 (3) For subsection 71 (5) of the Act, a draft or final master plan must:

 (a) address any obligation that has passed to the relevant airport-lessee company under subsection 22 (2) of the Act or subsection 26 (2) of the Transitional Act; and

 (b)  address any interest to which the relevant airport lease is subject under subsection 22 (3) of the Act, or subsection 26 (3) of the Transitional Act; and

 (c) if the development proposed in the plan relates to Canberra Airport—comply with and otherwise not be inconsistent with the National Capital Plan prepared under Part III of the Australian Capital Territory (Planning and Land Management) Act 1988.

 (4) In subregulation (1):

“OLS” and “PANS-OPS surface” have the same meanings as in the Airports (Protection of Airspace) Regulations.

Developments exempt from Division 4 of Part 5 of the Act

 5.03. (1) For paragraphs 90 (1) (d) and (4) (d) of the Act, a major airport development that is the subject of written permission or approval (however described) of the Federal Airports Corporation when it was the operator of the airport concerned, is exempt from Division 4 of Part 5 of the Act.

 (2) If a development referred to in subregulation (1) was approved subject to a condition, and the condition is not inconsistent with the Act or these Regulations, that condition is taken to continue to apply to the development.

Contents of major development plan

 5.04. For subsection 91 (3) of the Act, a major development plan must address the obligations of the airport-lessee company as sublessor under any sublease of the airport site concerned, and the rights of the sublessee under any such sublease, including:

 (a) any obligation that has passed to the relevant airport-lessee company under subsection 22 (2) of the Act or subsection 26 (2) of the Transitional Act; or

 (b) any interest to which the relevant airport lease is subject under subsection 22 (3) of the Act, or subsection 26 (3) of the Transitional Act.

PART 7—ACCOUNTS AND REPORTS OF AIRPORT-OPERATOR COMPANIES

Application of Part

 7.01. (1) The requirements of this Part apply to an airport-operator company:

 (a) whether or not the company is a disclosing entity for the purposes of the Corporations Law; and

 (b) whether or not the company is exempt under that Law from compliance (whether the exemption is by regulation or because of an exemption by the Australian Securities Commission) with Part 3.6 of that Law.

[Note: For “disclosing entity”, see section 111AC of the Corporations Law.]

 (2) To avoid doubt, nothing in this Part:

 (a) requires an airport-operator company to prepare, for the purposes of these Regulations, accounts or financial statements in respect of a half-year (within the meaning given by subsection 50A (5) of the Corporations Law) unless the half-year is the whole period during which the company was an airport-operator company; or

 (b) affects a company’s obligations under any other law.

Interpretation

 7.02. In this Part:

“accounts”, in relation to an airport-operator company and a period, means:

 (a) a profit and loss account of the company for the period; and

 (b) a balance-sheet of the company at the end of that period; and

 (c) a cash flow statement; and

 (d) statements, reports and notes, other than a directors’ report or an auditor’s report, attached to, or intended to be read with, that profit and loss account or balance sheet;

“financial statements” has the same meaning as in the Corporations Law.

Financial statements

 7.03. (1) For subsection 141 (2) of the Act, the airport-lessee company for a core regulated airport must prepare, for each relevant period:

 (a) consolidated accounts and financial statements, in accordance with AASB Standard No. 24 (“Consolidation of Accounts”) as in force for that period for itself and all airport-management companies for the airport, as if those airport-management companies were subsidiaries of the airport-lessee company; and

 (b) consolidated financial statements for the operations, in relation to the airport, of itself and all airport-management companies at the airport, showing financial details in relation to the provision of aeronautical services and non-aeronautical services separately.

 (2) For that subsection, an airport-operator company for a core regulated airport must prepare, for each relevant period:

 (a) the accounts and financial statements required by Divisions 4, 5 and 6 of Part 3.6 of the Corporations Law; and

 (b) financial statements for its operations at the airport, showing separately financial details in relation to the company’s operations at the airport in providing aeronautical services and non-aeronautical services.

[Note: “Airport-operator company” includes an airport-lessee company and an airport management company: see the Act, s. 5.]

 (3) The accounts and statements required by subregulation (2) are in addition to any statement that may be required by the Corporations Law for the purposes of that Law, and must not be consolidated with those of any other company.

 (4) In this regulation:

“AASB” has the same meaning as in subsection 141 (7) of the Act;

“aeronautical services” means services and facilities in relation to:

 (a) aircraft landings, take-offs and parking, including the provision of:

 (i) runways, taxiways, parking aprons and associated lighting; and

 (ii) airside roads and grounds, and associated lighting; and

 (iii) maintenance and repair services in relation to runways, taxiways, and parking aprons; and

 (iv) rescue, fire-fighting and safety services; and

 (v) environmental-hazard-control services; and

 (vi) services and facilities to ensure compliance with environmental laws; and

 (vii) airfield navigation services, including nose-in guidance and visual navigation aids; and

 (b) the embarkation or disembarkation and temporary accommodation of passengers, including the provision to passengers of:

 (i) toilets, seating, thoroughfares, transfer systems and aerobridges; and

 (ii) departure lounges and holding lounges; and

 (iii) flight-information and public-address systems; and

 (iv) facilities to permit the operation of terminal security services; and

 (c) the administrative processing of passengers, including the provision to passengers of:

 (i) facilities to enable the operation of customs, immigration and quarantine services; and

 (ii) passenger check-in facilities; and

 (iii) landside terminal access roads, lighting and covered walkways; and

 (iv) baggage handling services; and

 (v) facilities to enable the operation of baggage security services;

“airside” has the meaning it has in Division 3 of Part 5 of the Act;

“landside” has the meaning it has in Division 3 of Part 5 of the Act;

[Note: See the Note following section 71 of the Act.]

“non-aeronautical services” means services provided at an airport that are not aeronautical services.

“relevant period”, in relation to an airport-operator company, means:

 (a) if the company was an airport-operator company for the whole of a financial year—the financial year; or

 (b) if the company was an airport-operator company for only part of a financial year—that part.

[Note: For “financial year”, see paragraph 22 (1) (e) of the Acts Interpretation Act 1901.]

Form of statements

 7.04. For subsection 141 (3) of the Act, a statement referred to in this Part must be prepared in a way that complies with sections 297, 298, 299 and 300 of the Corporations Law.

Auditor’s certificate

 7.05. (1) For subsection 142 (5) of the Act, 60 days is prescribed.

[Note: This is the period (after the end of an accounting period) within which the auditor of an airport-operator company must give the company a certificate relating to the company’s accounts.]

 (2) For subsection 142 (5) of the Act, an auditor’s certificate must set out:

 (a) whether, in the auditor’s opinion:

 (i) the company concerned has kept financial records sufficient to enable a financial statement to be prepared and audited; and

 (ii) the auditor has been given all information, explanation and assistance necessary to carry out the audit; and

 (b) whether, in the auditor’s opinion, the accounts and financial statements of the company concerned:

 (i) comply with the Act and these Regulations and the relevant accounting standards; and

 (ii) give a true and fair view of the company’s operations; and

 (c) if the auditor considers that the accounts and financial statements do not comply with the Act or these Regulations, or relevant accounting standards, or do not give a true and fair view—why they do not do so; and

 (d) details of any matter that, in the opinion of the auditor, should be reported to the ACCC.

 (3) An auditor’s certificate for section 142 (5) of the Act is taken to comply with paragraphs (2) (a), (b) and (c) if it is in the form required by the Corporations Law for an auditor’s report under that Law.

Lodgement of accounts with the ACCC

 7.06. For subsection 143 (2) of the Act, 90 days is prescribed.

[Note: This is the period (after the end of an accounting period) within which the accounts of an airport-operator company must be lodged with the ACCC.]

Report on airports

 7.07. (1) For subsection 145 (1) of the Act, an airport-operator company must report to the ACCC, for each financial year, the total average staff equivalent of the persons employed at the airport concerned for the provision of aeronautical services and non-aeronautical services.

 (2) In subregulation (1):

“average staff equivalent” of a person employed at an airport means the number of hours in a day worked by the person at the airport, divided by the number of hours that the person would work at the airport in that day if working full-time.

Record-keeping

 7.08. For subsection 146 (1) of the Act, a company must keep records of the kind mentioned in that subsection, and must retain the records for 5 years after the end of the period to which the records relate.

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 SCHEDULE 1 Regulation 1.03

AIRPORT SITES

Part 1.1—Melbourne (Tullamarine) Airport

The declared airport site comprises, in addition to the General Law title found at Memorial Book 889 No. 390, the following parcels of land (or those parcels as consolidated from time to time, or references to the description of land in which are changed from time to time, without a change to the dimension of the boundary or the interest of the registered proprietor), in accordance with the system of land registration in Victoria:

Part 1.2—Brisbane Airport

The declared airport site comprises the following parcels of land (or those parcels as consolidated from time to time, or references to the description of land in which are changed from time to time, without a change to the dimension of the boundary or the interest of the registered proprietor), in accordance with the system of land registration in Queensland:

Part 1.3—Perth Airport

The declared airport site comprises the following parcels of land (or those parcels as consolidated from time to time, or references to the description of land in which are changed from time to time, without a change to the dimension of the boundary or the interest of the registered proprietor), in accordance with the system of land registration in Western Australia:

NOTE

1. Notified in the Commonwealth of Australia Gazette on 12 February 1997.