EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 117

 

 

Subject - Airports Act 1996

 

Airports Amendment Regulations 2009 (No. 2)

 

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

 

Section 155 of the Act relevantly provides that the Australian Consumer and Competition Commission (ACCC) has the function of monitoring and evaluating the quality of ‘aspects of airport services and facilities’ specified in the regulations.

 

Part 8 of the Airports Regulations 1997 (the Principal Regulations) provides for quality of service monitoring at specified airports and prescribes a set of ‘performance indicators’ against which the ACCC measures quality of service. However, Part 8 of the Act was substantially amended in 2007 such that all references to ‘performance indicators’ were removed.

 

The Regulations amend Part 8 of the Principal Regulations to:

-         remove all references to ‘performance indicators’ and insert references to ‘aspects of airport services and facilities’;

-         prescribe the five airports to be monitored by the ACCC for quality of service. This reflects the Productivity Commission’s recommendation in 2006 that quality of service monitoring should apply at Australia’s five major airports: Adelaide, Brisbane, Melbourne (Tullamarine), Perth and Sydney (Kingsford-Smith);

-         specify the aspects of airport services and facilities to be evaluated and monitored by the ACCC. This ensures consistency with amended section 155 of the Act which provides that the ACCC has the function of monitoring and evaluating the quality of ‘aspects of services and facilities’ specified in the regulations; and

-         list the matters about which airport-operator companies must keep records. The list is an amalgamation of current Schedule 3 to the Principal Regulations and the ACCC’s quality of service information requirements contained in its ‘Airport Monitoring Quality of Service Guidelines- October 2008’.

 

Details of the amended Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised. A comprehensive consultation process was undertaken when the Act was amended in 2007. The amendments to the Principal Regulations are consequential to the 2007 amendments to the Act and their regulatory impact on business, individuals or the economy is nil or low.

 

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

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

The Minute recommends that Regulations be made in the form proposed.

 

Authority: Section 252 of the Airports Act 1996

 

 

ATTACHMENT

 

Details of the amended Airports Amendment Regulations 2009 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Airports Amendment Regulations 2009 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after registration.

 

Regulation 3 – Amendment of Airports Regulations 1997

 

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

 

Regulation 4 – Transitional

 

This regulation provides that an airport-operator company must retain existing records required under subregulation 8.02(1) (as in force immediately before the commencement of these amendments) for five years after the financial year to which the record relates as required in subregulation 8.02(2).

 

Schedule 1 – Amendments

 

Item [1] – Regulation 8.01

 

Item 1 replaces existing regulation 8.01, which specifies the airports to which Part 8 of the Act applies, with a new regulation 8.01. The new regulation specifies the five airports that the ACCC is currently monitoring for quality of service, namely: Adelaide, Brisbane, Melbourne (Tullamarine), Perth and Sydney (Kingsford-Smith).

 

Item [2] - After regulation 8.01

 

Currently, the Principal Regulations refer to ‘performance indicators’ and specify criteria used to assess indicators in Schedule 2.  This is inconsistent with requirements of the Act, as amended in 2007. The Act no longer uses the phrase ‘performance indicators’. The Act, as amended, provides that the ACCC should monitor and evaluate ‘aspects of airport services and facilities’ specified in the Principal Regulations.  There is no requirement under the Act to prescribe criteria for monitoring and evaluating ‘aspects’ in the Principal Regulations.  This is a matter determined by the ACCC in consultation with various government departments.  In light of this, item 2 effectively replaces the criteria contained in existing Schedule 2 by inserting new regulation 8.01A which enumerates the ‘aspects’ of passenger-related services and facilities, and aircraft-related services and facilities to be monitored by the ACCC.

 

 

 

Item [3] – Subregulation 8.02(1)

 

Subregulation 8.02(1) requires an airport-operator company to retain records on certain matters (currently, specified in Schedule 3 to the Principal Regulations) for each financial year beginning on or after 1 July 2000. Item 3 substitutes ‘on or after 1 July 2000’ for ‘on or after 1 July 2008’.

 

The new quality of service monitoring arrangements conducted by the ACCC were fully implemented after 1 July 2008 as a result of the ACCC’s Airport Quality of Service Monitoring Guideline (October 2008) coming into operation after this date. Therefore, the requirements under new subregulation 8.02(1) become operational from the start of the 2008-2009 financial year.

 

Further, the item substitutes the reference to ‘Schedule 3’ for ‘Schedule 2’ as existing Schedule 2 is now deleted. New Schedule 2 as inserted by item [6] outlines the matters about which airport-operator companies must keep records.

 

Item [4] – Subregulation 8.02(2), note

 

This item replaces the note after subregulation 8.02(2) with two new notes. The notes acknowledge that the penalty for an airport-operator company failing to retain records is specified in subsection 156(5) of the Act. They also acknowledge subregulation 8.02(2) continues to apply to records that started before 1 July 2008.

 

Item [5] – Subregulation 8.03(2)

 

Currently, subregulation 8.03(2) provides that if an airport-operator company carries out a survey about ‘a performance indicator’, the company must give the ACCC results of the survey within a specified time. This item removes the reference to ‘a performance indicator’ and inserts a reference to ‘a quality of service matter’. This is being done to be consistent with the Act which no longer uses the term ‘performance indicator’.

 

Item [6] – Schedules 2 and 3

 

Current ‘Schedules 2 and 3’ are deleted and replaced with the new ‘Schedule 2 - Records relevant to quality of service matters’. New Schedule 2 is divided into two parts:

 

·        Part 1 provides a definition of ‘peak hour’. This term is referred to on several occasions in Part 2 of the new Schedule and it has a slightly different meaning depending on the context in which it is used. There are separate definitions for matters relating exclusively to arriving passengers or inbound luggage as opposed to departing passengers or outbound luggage.

·        Part 2 outlines the ‘aspects of airport services and facilities to which records are relevant’. These ‘aspects’ range from car parking service facilities to aircraft parking facilities and bays. The list is an amalgamation of current Schedule 3 and the ACCC’s quality of service information requirements contained in its ‘Airport Monitoring Quality of Service Guideline (October 2008)’. The ACCC consulted extensively with airport stakeholders in late 2007 and 2008 regarding the guidelines. Part 2 also specifies matters about which the five monitored airports must keep records.