EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 307

Subject - Airports Act 1996

Airports Amendment Regulations 2009 (No. 3)

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.

The Act provides for a comprehensive regulatory regime for leased federal airports including the regulation of the ownership of airports. The Airports Regulations 1997 (the Principal Regulations) provide for, among others, the regulation of the ownership of airports, record keeping and the provision of information to the Minister relating to an ownership matter.

The Regulations amend the Principal Regulations to clarify the regulatory provisions in order to aid compliance and assist airport operators to meet annual reporting obligations.

The Regulations, among others:

·      clarify the definition of ‘reporting period’ which, as currently worded, is ambiguous and causes confusion to some stakeholders. This ensures that the original intention of the Principal Regulations when made in 1997 is achieved—that is, that an airport operator company must provide to the Minister for Infrastructure, Transport, Regional Development and Local Government (the Minister) annual ownership reports within the period specified in the regulations from the anniversary of the company becoming the lessee or management company for a leased federal airport; and

·      enable the airport-operator company to request ownership information from persons in order to assist that company to comply with its statutory obligation of providing ownership information to the Minister.

Details of the Regulations are set out in the Attachment.

The Act specifies no other conditions that need to be satisfied before the power to make the Regulations may be exercised.

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

Airport-operator companies have been consulted in accordance with section 17 of the Legislative Instruments Act 2003. The Regulations were formed after consideration of this consultation.

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

Authority: Section 252 of the Airports Act 1996

ATTACHMENT

Details of the Airports Amendment Regulations 2009 (No. 3)

Regulation 1 – Name of Regulations

The regulation provides that the title of the Regulations is the Airports Amendment Regulations 2009 (No. 3).

Regulation 2 – Commencement

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

Regulation 3 – Amendment of Airports Regulations 1997

The regulation provides that the Airports Regulations 1997 are amended as set out in Schedule 1.

Schedule 1 – Amendment of Airports Regulations 1997

Item [1] – Regulation 3.23

Subregulation 3.23(1) defines ‘reporting period’. The existing definition is amended to provide clarity and assist airport operator companies in understanding their regulatory obligations. The regulatory requirements, however, are unchanged. The amended subregulation 3.23(1) provides that a ‘reporting period’ is:

·        a period of 12 months from the date that an airport-lessee company became an airport-lessee company and each subsequent 12 months after that; or

·        12 months from the date that an airport-management company became an airport-management company and each subsequent 12 months after that.

Subregulation 3.23(2) requires an airport-operator company to give the Minister:

(a)    a declaration that there is no unacceptable foreign-ownership, airline-ownership or cross-ownership situation; and

(b)   a written return providing the information specified in subregulation 3.23(3).

Subregulation 3.23(2) is amended to delete existing paragraph 3.23(2)(b)(ii), which currently allows an airport-operator company to provide information in the form of a statement that ‘no change had occurred since the previous reporting day’. The experience of regulators in monitoring an airport’s compliance concerning disclosure of ownership information indicates that a mere ‘statement of no change’ has been unsatisfactory and has led regulators to ask for further clarification, particularly where the information previously provided by the airports has been archived and is no longer easily accessible to the current regulators. To avoid this, airport-operator companies are now required to provide the Minister with annual written ownership returns detailing their ownership structures and not merely a ‘statement of no change’.

New subregulation 3.23(2AA) is inserted as a housekeeping amendment. It makes it clear that the requirement to make a declaration of any unacceptable ownership situations under subregulation 3.23(2) should be complied with within 30 business days after the end of the reporting period or within such period allowed by the Minister under existing subregulation 3.23(2C).

The amended provisions provide clarity in the existing reporting requirements. As a result, there will be greater certainty as to when airport-operator companies must comply with their statutory obligations concerning ownership matters. The amendments also assist regulators to monitor ownership matters by ensuring that information relevant to ownership matters must be provided to the Minister every 12 months.

Item [2] – After regulation 3.26

At present, there is no requirement for a person with information relevant to an ownership matter, as defined in subsection 60(6) of the Act, to provide the airport-operator company with that information. However, paragraph 60(1)(c) of the Act provides that the regulations may provide for, and require, a person to give information to an airport-operator company where that information is relevant to an ownership matter. Subsection 60(2) provides that this information may be required by the regulations to be in the form of a statutory declaration.

Item [2] inserts new regulation 3.26A to enable an airport-operator company to request a person to provide information relating to an ownership matter (that concerns that airport-operator company) within a period of at least 14 days as specified in the request. New regulation 3.26A further requires that the information provided by the person be in the form of a statutory declaration.

The new requirements will assist the airport-operator companies to comply with their record-keeping and reporting obligations under the Principal Regulations.