Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
FEDERAL AIRPORTS CORPORATION REGULATIONS 1992 NO. 255
EXPLANATORY STATEMENTSTATUTORY RULES 1992 No. 255
Issued by Authority of the Minister for Shipping and Aviation Support
Federal Airports Corporation Act 1986
Federal Airports Corporation Regulations
Section 74 of the Federal Airports Corporation Act 1986 (the Act) provides that the GovernorGeneral may make regulations for the purposes of the Act.
Paragraph 6(a) of the Act provides that the functions of the Federal Airports Corporation (the Corporation) include the operation of Federal airports. Paragraph 8(1)(a) of the Act provides that the functions of the Corporation referred to in paragraph 6(a) extend to, reviewing the use and capacity of existing Federal airports, determining the necessity or desirability of extending or otherwise altering Federal airports and carrying out necessary or desirable extensions to, or alternations of, Federal airports.
Following an extensive review of the use and capacity of Sydney (Kingsford Smith) Airport (the Airport) and a comprehensive environmental assessment under the provisions of the Environment Protection (Impact of Proposals) Act 1974 (the EP Act), the Corporation decided to construct a third runway at the Airport. Acquisition procedures have been carried out under the Lands Acquisition Act 1989 (the LA Act) to enable the Corporation to acquire the construction site, an area adjoining the existing Airport where the new runway is to be constructed. Once the acquisition of the construction site is complete it is proposed that the Minister of State for Transport and Communications acting under section 26 will incorporate the construction site into the Airport.
The fill for the site is primarily to be taken from areas in Botany Bay (the dredging site) adjoining the construction site. It was decided that, rather than acquiring full ownership of the dredging site, the Corporation should only acquire limited rights to have access and to remove and place fill. Procedures under the LA Act have been carried out to enable the Corporation to acquire dredging rights in the dredging site. It is expected that this acquisition will be completed by 31 August 1992.
The Federal Airports Corporation Regulations (the Regulations) establish a licensing regime for contractors working at the construction and dredging sites to ensure that environmental standards are complied with when the works (specified in Schedule 2 of the Regulations) are carried out or dredging rights are exercised. The environmental standards include the measures for monitoring, preventing and mitigating adverse environmental effects as set out in:
• the Environmental Impact Statement prepared in relation to the project on behalf of the Corporation in compliance with the EP Act,
• the recommendations made by the Minister for the Arts, Sport, the Environment and Territories in accordance with the Administrative Procedures applying under the EP Act, and
• the Botany Bay Environmental Management Plan Stage 1, prepared by the Corporation in consultation with the New South Wales State Department of Planning, for managing the potential effects on Botany Bay attributable to the carrying out of the works.
Under the licensing scheme, licensees are required to act in accordance with the environmental standards applicable to the particular activities they undertake. Also, licensees are required to carry out their activities in a way which does not interfere with the implementation of the environmental standards by the Corporation or by other contractors. A licence is only to be granted if the applicant satisfies the Corporation that the applicant and those it employs in the task will comply with these requirements. A licence may be cancelled or suspended for breach of these requirements. In addition, a licensee is required to comply with any directions from the Corporation made for the purposes of ensuring the environmental standards are met.
Licensees face a potentially demanding set of requirements in relation to their activities. However, the licensing system is not like an ordinary licensing system which stands between applicants and their ability to participate in their trade or profession. Rather, the Regulations provide for a system to control participation in the project in the exercise of the Corporation's property rights. The demanding requirements imposed on licensees reflect the requirements imposed on the Corporation itself in relation to the project. The Regulations provide an avenue for application to be made to the Administrative Appeals Tribunal for the review of a decision refusing to grant a licence, or suspending or cancelling a licence.
The Regulations are intended to remove any doubt about the extent to which the laws of New South Wales, including the provisions of State laws made applicable to the Airport under the Commonwealth Places (Application of Laws) Act 1970, apply when works are carried out and rights are exercised. Specifically, the Regulations are intended to ensure that specified classes of State laws relating to environmental assessment and development approval processes do not apply. While the preparation of these Regulations was being completed, two legal actions were commenced in the New South Wales Land and Environment Court seeking orders to compel the Corporation to follow EIS processes under State law. The application of these laws, which would involve significant delay to the project, is considered inappropriate in view of the exhaustive processes carried out under Commonwealth law to identify, assess and address environmental effects of the project.
The Corporation has a broad obligation under the EP Act and Procedures to ensure the environmental standards are met. Under section 8 of the EP Act, the Ministers in the Transport and Communications portfolio are to ensure that the Corporation takes into account the outcome of the EIS process. The obligations on the Corporation are discharged through the licensing scheme in the Regulations, through controls in the contracts issued by the Corporation for work on the project and through actions taken by the Corporation itself to monitor and contain the environmental effects. The stated object in regulation 5 of providing a system which ensures compliance with the environmental standards will guide the Corporation in the exercise of powers under the Regulations.
Details of the Regulations are in the Attachment.
The Regulations will commence on 31 August 1992 by which time the acquisition of the construction site and of rights in the dredging sites is to have been completed and the construction site is to have been incorporated into the Airport.
Attachment
In particular, the Regulations:
• prohibit the carrying out of works or the exercise of rights within or over, or partly within or over, the Airport and/or dredging site without a licence issued under the proposed Regulations;
• prohibit the Chief Executive Officer of the Corporation from granting a licence unless he or she is satisfied that the applicant and the applicant's employees and minor contractors will act in accordance with the required environmental standards and also allow others to do so. Specifically, subregulation 8(2) requires a licensee to act in accordance with the environmental standards applicable to the works or the rights which are subject to the application and to do so in a manner which does not interfere with the activities of others implementing or attempting to implement the standards.
The environmental standards cover a range of different activities involved in the project. Some will not apply to the activities to be carried out by a particular licensee. In some cases they set standards applying to overall impact on the project rather than to activities which can be tied to a particular contractor. Licensees are not expected to implement standards which do not apply to the specific activities in which they are engaged, but they are expected not to interfere with the activities of others involved in the project who are implementing or attempting to implement the standards. Where the environmental standards set overall requirements, the general responsibilities of the Corporation require it to supervise the activities of the various licensees to ensure that those overall requirements are met. The power under subregulation 10(1) to issue directions to licensees provides a vehicle to impose particular requirements on each contractor in order to enforce the overall limits. Any such direction must be consistent with the environmental standards;
• authorise licensees to carry out works and exercise dredging rights notwithstanding the requirements of certain specified classes of State laws;
• identify certain classes of State laws which are not excluded from operation; and
• enable the Chief Executive Officer to cancel or suspend a licence if the licensee fails to or is unlikely to:
- act in accordance with the environmental standards applicable to the works or the rights which are subject to the licence, or
- carry out the works or exercise rights subject to the licence without interfering with the activities of others implementing or attempting to implement the standards, or
- comply with a direction under proposed subregulation 10(1), or
- comply with the proposed Regulations.
Any decision to cancel or suspend a licence (as is the case for a decision to refuse to grant a licence) is reviewable by the Administrative Appeals Tribunal. The Regulations provide that when suspending, cancelling or refusing to issue a licence the Chief Executive Officer must provide reasons for the decision and notification of the right of appeal.