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AIRPORTS (ENVIRONMENT PROTECTION) REGULATIONS (AMENDMENT) 1997 NO. 112
EXPLANATORY STATEMENTSTATUTORY RULES 1997 No. 112
Issued by the Authority of the Minister for Transport and Regional Development
Airports Act 1996
Airports (Environment Protection) Regulations (Amendment)
Section 252 of the Airports Act 1996 (the Act) provides that the Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The sections of the Act which specify the regulation making powers upon which this Amendment relies are set out in Attachment 1.
Airports (Environment Protection) Regulations (the Regulations), made under Divisions 2 and 3 of Part 6 of the Act, deal with environmental matters at leased Commonwealth airports.
The Amendment has been made to deal with concerns of the Regulations and Ordinances Committee of the Senate and as a consequence of recent changes to the Act.
This Amendment to the Regulations:
* makes a number of technical amendments to correct typographical and drafting errors, and to correct cross-referencing errors. For example items 2, 4, 7, 8, 9, 10, 12, 18, 20 & 21.
* makes technical amendments to ensure consistency with the Act as amended. For example item 2 - references to Australian Standards so numbered or identified as in force or existing from time to time.
* defines the penalties for various offences (eg failure to comply with an Environment Protection Order under regulations 7.05 and 7.06) consistent with subsection 132(2). For example items 5, 6, 13, & 14.
* removes the "intentional and reckless" offences set out in Division 2 of the regulations as these offences have been inserted in the Act.
* consistent with subsection 133(3B), makes it clear that a remediation order can be issued for environmental pollution that took place before the commencement of these regulations.
Details of the Amendment to the Regulations appear in Attachment 2.
The amendments to the Regulations commenced upon notification in the Gazette.
Attachment 1
Regulation making powers under the Airports Act 1996 for the Airports (Environment Protection) Regulations (Amendment)
Subsection 132(1) of the Act provides that 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."
Subsection 132(2), as amended by the Aviation Legislation Amendment Act (No. 1) 1997, stipulates that 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 the number of penalty units (not exceeding 250 penalty units) that is declared by those regulations to be the maximum number of penalty units for a contravention of that provision.
Subsection 132(3) provides that regulations made for the purposes of subsection 132(1) may make provision for or in relation to a matter by conferring a power on the Minister.
Subsection 132(3A), inserted by the Aviation Legislation Amendment Act (No. 1) 1997, provides that 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 standard proposed or approved by the Standards Association of Australia, being a standard as in force or existing from time to time.
Subsection 132(4) provides that section 133 does not by implication, limit subsection 132(1).
Subsection 133(1) of the Act provides that 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 and habitat
(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 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 standards relating to the disposal or storage of waste at airport sites."
Under subsection 133(2), regulations may be made for the purposes of subsection (1) which prescribe penalties not exceeding 50 penalty units for offences against those regulations.
Subsection 133(3) provides that regulations made for the purposes of subsection 133(1) may make provision for or in relation to a matter by conferring a power on the Minister.
Subsection 133(3A), inserted by the Aviation Legislation Amendment Act (No. 1) 1997, provides that 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 standard proposed or approved by the Standards Association of Australia, being a standard as in force or existing from time to time.
Subsection 133(3B), inserted by the Aviation Legislation Amendment Act (No. 1) 1997, provides that to avoid doubt, regulations made for the purpose of paragraph (1)(a) may make provision for and in relation to the monitoring, cleaning up, remedying or rectifying, after the regulations take effect, of environmental pollution, even if the environmental pollution was generated:
(a) before the commencement of this subsection; or
(b) before the regulations took effect.
Subsection 133(4) provides that section 132 does not by implication, limit subsection 133(1).
Section 138 provides that the regulations may make provision enabling a person who is alleged to have committed an offence against Part 6 or regulations made for the purposes of section 132 to pay a penalty to the Commonwealth as an alternative to prosecution. Under subsection 138(2) this penalty must be equal to one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Attachment 2
AIRPORTS (ENVIRONMENT PROTECTION) REGULATIONS (AMENDMENT)
Item 2 - Regulation 1.06 (References to Australian Standards {"AS"})
Regulation 1.06 has been amended to provide that references to an Australian Standard in the Regulations refer to those Standards so numbered or identified as in force or existing from time to time.
Item 3 - Regulation 1.08 (Testing Standards)
A replacement regulation 1.08 has been inserted and states that, for the purposes of the Regulations, testing must be done in accordance with a suitable NATA method or another method of equivalent accuracy/reliability (eg methods approved by the USEPA, APHA or ASTM).
Item 4 - Regulation 4.01 (General duty to avoid polluting)
A technical amendment has been made to subregulation 4.01(3) to ensure consistency with the wording used in subregulations 4.04 (3) and 4.06 (3).
Item 5 - Regulation 4.05 (Duty to give notice of cultural, etc discovery)
A penalty of 50 penalty units has been inserted into subregulation 4.05 (1) for failure to give notice of a discovery.
Item 6 - Regulation 5.18 (Failure to comply with condition of authorisation)
A penalty of 50 penalty units has been inserted into regulation 5.18 for failure to comply with condition of authorisation.
Item 7 - Regulation 5.19 (Authorisation may be transferred)
Consistent with the Airport Environment Officer's obligation under regulation 5.14, the AEO is required to notify the Airport Lessee Company after receiving notice of the transfer under this regulation.
Item 8 -Regulation 6.02 (Airport - lessee company to monitor pollution levels)
A number of minor technical amendments have been made to cross-references in subregulation 6.02(1).
Item 9 - Regulation 6.06 (Inaccurate or incomplete report to be corrected)
Regulation 6.06 has been amended to clarify that it applies to all information and reports provided under the Division.
Item 10 - Regulation 6.11 (Conduct of examination)
A technical amendment has been made to paragraph 6.11(3)(b).
Item 11 - Regulation 6.14 (Occupier may prepare remedial plan)
A new subregulation 6.14(5) has been inserted requiring the Airport Environment Officer to approve a plan submitted under subregulation 6.14(1) within 30 days.
Item 12 - Regulation 6.18 (Power to order remedial work)
A technical amendment has been made to correct a cross reference in subregulation 6.18(4).
A new paragraph 6.18(7)(d) has been inserted which indicates that a remediation order can be given under the regulations even if the environmental pollution that took place was before the commencement of these regulations.
Subregulation 6.19(9) has been repealed.
Items 13 & 14 - Regulations 7.05 and 7.06 (Compliance with an order, etc)
A penalty of 250 penalty units for failure to comply with regulations 7.05 or 7.06 has been specified.
Item 15 - Division 2 (Intentional and reckless offences)
As a consequence of the new sections 131B, 131C, 131D and 131E, inserted into the Act by the Aviation Legislation Amendment Act (No. 1) 1997, regulations 7.07 and 7.08 have been repealed.
Item 16 - Regulation 8.02 (Purpose of this Division)
Regulation 8.02 has been amended to clarify that its purpose is to provide a procedure under which a person who is alleged to have committed an offence against part 6 of the Act may as an alternative to having the matter dealt with by a court, dispose of the matter by payment of a monetary penalty specified in a notice served on the person.
Item 17 - Regulation 8.03 (Infringement notices)
Consistent with the amendment in item 14, regulation 8.03 has been amended to require infringement notices to advise that if the fine is paid, then the payment not only discharges the liability and prevents any prosecution for the matter, but also ensures the person concerned is not regarded as having been convicted of an offence.
Item 18 - Regulation 9.01 (Decisions reviewable by Secretary)
A technical correction has been made to a cross reference in Regulation 9.01.
Item 19 - Regulation 10.04 (Giving notices, directions etc)
Regulation 10.04 has been amended to provide that notices can be sent to any person, the Airport Environment Officer or the Secretary by prepaid certified post. Prepaid certified post is defined to mean a postal service in which there is a proof of posting and proof of receipt.
Items 20 and 21 - Schedule 2 (Water Pollution)
Technical corrections have been made to cross references.