Airports Regulations (Amendment) (Cth)

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Statutory Rules 1997No. 177 1

__________________

Airports Regulations2 (Amendment)

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 30 June 1997.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

BRUCE SCOTT

Minister for Veterans’ Affairs for the

Minister for Transport and Regional Development

____________

1. Commencement

1.1 These Regulations commence on 1 July 1997.

2. Amendment

2.1 The Airports Regulations are amended as set out in these Regulations.

3. Regulation 2.01 (Interpretation)

3.1 Insert:

“‘existing interest’ means an interest subject to which an airport lease was granted (because of section 26 of the Airports (Transitional) Act 1996);

‘licence’ means a licence relating to an airport lease, and includes a proposed licence relating to an airport lease;

‘licensee’ includes a person who has agreed to become a licensee under a proposed licence;

‘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;

‘sublease’ includes a proposed sublease;

‘sublessee’ includes a person who has agreed to become a sublessee under a proposed sublease;

‘terms’ includes conditions.”.

4. Regulations 2.04 (Prohibited kinds of subleases and licences) and 2.05 (AAT review of decisions)

4.1 Omit the regulations, substitute regulations 2.04 to 2.20 set out in Schedule 1.

5. New Division 3.2

5.1 After Division 3.1 of Part 3, insert Division 3.2 set out in Schedule 2.

____________

Schedule 1 Regulation 4

new regulations 2.04 to 2.20

Prohibited kinds of subleases

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

(a)
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;
(b)
a sublease of premises within the airport site for prostitution;
(c)
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.

“(2) For subsection 34 (1) of the Act, a sublease of any of the following kinds is prohibited unless the Secretary makes a declaration about the sublease under regulation 2.05:

(a)
a sublease to a sublessee that 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)
if the sublease is solely for a single-site retail business—an individual;
(b)
a sublease for residential development.

“(3) For subsection 34 (1) of the Act, a sublease to a State or Territory government or authority is prohibited unless the Secretary approves the sublease under regulation 2.07.

“(4) However, if a sublease was, at the time of grant of the relevant airport lease, an existing interest referred to in section 26 of the Airports (Transitional) Act 1996, subregulations (1), (2) and (3) apply to the sublease only if its terms are varied after the commencement of this regulation.

“(5) If a sublease referred to in subregulation (4) is varied after the commencement of this regulation:

(a)
subregulation (1), (2) or (3) applies to it from the time of the variation; and
(b)
in the case of a sublease to which subregulation (2) applies—the sublease (as varied) is taken to be prohibited unless the Secretary makes a declaration under regulation 2.05 about the sublease (as varied); and
(c)
in the case of a sublease to which subregulation (3) applies—the sublease (as varied) is taken to be prohibited unless the Secretary approves the sublease (as varied) under regulation 2.07.

Secretary may declare that specified sublease not prohibited

“2.05. (1) On application by the sublessee under a sublease to which subregulation 2.04 (2) applies, the Secretary may declare, by instrument, that the subregulation does not prohibit the sublease.

“(2) The Secretary must make a decision on the application within 30 days after the application is made.

“(3) Before making a decision, the Secretary must be satisfied that, if the declaration is made, the sublease will not have the effect of frustrating the objects of the Act.

“(4) In considering whether to make a declaration under subregulation (1), the Secretary must take into account:

(a)
the duration of the sublease; and
(b)
the size of the area subject to the sublease; and
(c)
the terms of the sublease.

“(5) The Secretary must inform the applicant in writing of the decision within 7 days after making the decision, and must give the applicant:

(a)
if the Secretary made the declaration—a copy of the relevant instrument; or
(b)
if the Secretary refused to make the declaration—a statement of the reasons for the refusal.

“(6) If the Secretary makes the declaration, section 34 of the Act is taken not to prohibit the sublease until the Secretary revokes the declaration under regulation 2.06.

Revocation of declaration

“2.06. (1) If it appears that there has been a change in circumstances that justifies revoking a declaration under

regulation 2.05, the Secretary may, by notice in writing, require the sublessee to demonstrate, within a specified reasonable time, that there has been no such change.

“(2) The Secretary must revoke the declaration if he or she is satisfied that, after the change, the sublease has the effect of frustrating the objects of the Act.

“(3) In deciding whether a change justifies revocation of the declaration, the Secretary must take into account the circumstances before and after the change, including any change in:

(a)
the duration of the sublease; and
(b)
the size of the area subject to the sublease; and
(c)
the terms of the sublease.

“(4) If, after considering any evidence produced by the sublessee, the Secretary is satisfied that the declaration should be revoked, the Secretary may revoke the declaration.

“(5) If the Secretary revokes the declaration, the Secretary must give the sublessee notice in writing of the revocation, and a statement of the reasons for the revocation.

“(6) The revocation becomes effective 1 month after the notice is given to the sublessee.

Approval of sublease to State government etc

“2.07. (1) The Secretary may, by instrument, approve a sublease for subregulation 2.04 (3).

“(2) In considering whether to approve a sublease, the Secretary must take into account:

(a)
whether the activity for which the sublease is granted, or proposed to be granted, is being or 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 proposed sublease.

“(3) The Secretary may approve a sublease 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.

Prohibited terms in leases

“2.08. For subsection 34A (1) of the Act, a term in a sublease that imposes an obligation inconsistent with an obligation under the Act is prohibited.

Mandatory terms in subleases

“2.09. For subsection 34B (1) of the Act, a sublease is required to contain terms of the following kinds:

(a)
a term to the effect that the sublease is automatically terminated upon the creation of an interest in the sublease in favour of a person that 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;
(b)
a term to the effect that any underlease of the sublease must contain a term to the same effect as that required by paragraph (a).

Prohibition on dealings with subleases by way of trust etc

“2.10.(1) For sections 34C and 34D of the Act, the sublessee of an airport lease must not:

(a)
dispose of the sublease by way of declaration of trust; or
(b)
transfer a beneficial interest in the sublease independently of the legal interest in the sublease (other than by way of enforcing a loan security).

“(2) Subregulation (1) does not apply to a proposed dealing with a sublease if the Secretary has made a declaration under subregulation 2.11 (2) about the dealing.

Secretary may declare that specified dealing with sublease not prohibited

“2.11. (1) In this regulation:

‘deal with a sublease’ means:

(a)
dispose of the sublease by way of declaration of trust; or
(b)
transfer a beneficial interest in the sublease independently of the legal interest in the sublease (other than by way of enforcing a loan security).

“(2) On application by a person who proposes to deal with a sublease, the Secretary may declare, by instrument, that

regulation 2.10 does not prohibit the proposed dealing.

“(3) The Secretary must make a decision on the application within 30 days after the application is made.

“(4) In considering whether to make a declaration under subregulation (2), the Secretary must take into account:

(a)
the duration of the sublease; and
(b)
the size of the area subject to the sublease; and
(c)
the terms of the proposed dealing.

“(5) Before making a declaration under subregulation (2), the Secretary must be satisfied that the dealing, if made, will not frustrate the objects of the Act.

“(6) The Secretary must inform the applicant within 7 days after making a decision on the application, and must give the applicant:

(a)
if the Secretary made the declaration—a copy of the relevant instrument; or
(b)
if the Secretary refused to make the declaration—a statement of the reasons for the refusal.

“(7) If the Secretary makes the declaration, sections 34C and 34D of the Act are taken not to prohibit the dealing.

Prohibited kinds of licences

“2.12. (1) For subsection 35 (1) of the Act, the following kinds of licences are prohibited:

(a)
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;
(b)
a licence of premises within the airport site for prostitution;
(c)
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.

“(2) For subsection 35 (1) of the Act, a licence of any of the following kinds is prohibited unless the Secretary makes a declaration about the licence under regulation 2.13:

(a)
a licence to a licensee that 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)
if the licence is solely for a single-site retail business—an individual;
(b)
a licence for residential development.

“(3) For subsection 35 (1) of the Act, a licence to a State or Territory government or authority is prohibited unless the Secretary approves the licence under regulation 2.15.

“(4) However, if a licence was, at the time of grant of the relevant airport lease, an existing interest referred to in section 26 of the Airports (Transitional) Act 1996, subregulations (1), (2) and (3) apply to the licence only if its terms are varied after the commencement of this regulation.

“(5) If a licence referred to in subregulation (4) is varied after the commencement of this regulation:

(a)
subregulation (1), (2) or (3) applies to it from the time of the variation; and
(b)
in the case of a licence to which subregulation (2) applies—the licence (as varied) is taken to be prohibited unless the Secretary makes a declaration under regulation 2.13 about the licence (as varied); and
(c)
in the case of a licence to which subregulation (3) applies—the licence (as varied) is taken to be prohibited unless the Secretary approves the licence (as varied) under regulation 2.15.

Secretary may declare that specified licence not prohibited

“2.13. (1) On application by the licensee under a licence to which subregulation 2.12 (2) applies, the Secretary may declare, by instrument, that the subregulation does not prohibit the proposed licence.

“(2) The Secretary must make a decision on the application within 30 days after the application is made.

“(3) In considering whether to make a declaration under subregulation (1), the Secretary must take into account:

(a)
the duration of the licence; and
(b)
the size of the area to be subject to the licence; and
(c)
the terms of the licence.

“(4) Before making a decision, the Secretary must be satisfied that, if the declaration is made, the licence will not have the effect of frustrating the objects of the Act.

“(5) The Secretary must inform the applicant of the decision within 7 days after making the decision, and must give the applicant:

(a)
if the Secretary made the declaration—a copy of the relevant instrument; or
(b)
if the Secretary refused to make the declaration—a statement of the reasons for the refusal.

“(6) If the Secretary makes the declaration, section 35 of the Act is taken not to prohibit the licence until the Secretary revokes the declaration under regulation 2.14.

Revocation of declaration

“2.14. (1) If it appears that there has been a change in circumstances that justifies revoking a declaration under

regulation 2.13, the Secretary may, by notice in writing, require the sublessee to demonstrate, within a specified reasonable time, that there has been no such change.

“(2) The Secretary must revoke the declaration if he or she is satisfied that, after the change, the licence has the effect of frustrating the objects of the Act.

“(3) In deciding whether a change justifies revocation of the declaration, the Secretary must take into account the circumstances before and after the change, including any change in:

(a)
the duration of the licence; and
(b)
the size of the area subject to the licence; and
(c)
the terms of the licence.

“(4) If, after considering any evidence produced by the sublessee, the Secretary is satisfied that the declaration should be revoked, the Secretary must revoke the declaration.

“(5) If the Secretary revokes the declaration, the Secretary must give the licensee notice in writing of the revocation, and a statement of the reasons for the revocation.

“(6) The revocation becomes effective 1 month after the notice is given to the licensee.

Approval of licence to State government etc

“2.15. (1) The Secretary may, by instrument, approve a licence for subregulation 2.12 (3).

“(2) In considering whether to approve the licence, the Secretary must take into account:

(a)
whether the activity for which the licence is granted, or proposed to be granted, is being or 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 proposed licence.

“(3) The Secretary may approve a licence 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.

Prohibited terms in licences

“2.16. For subsection 35A (1) of the Act, a term in a licence that imposes an obligation inconsistent with an obligation under the Act is prohibited.

Mandatory terms in licences

“2.17. For subsection 35B (1) of the Act, a licence relating to an airport lease is required to contain terms of the following kinds:

(a)
a term to the effect that the licence is 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;
(b)
a term to the effect that any further licence of the licence must contain a term to the same effect as that required by paragraph (a).

Prohibition on dealings with licences by way of trust etc

“2.18. (1) For sections 35C and 35D of the Act, the holder of a licence relating to an airport lease must not:

(a)
dispose of the licence by way of declaration of trust; or
(b)
transfer a beneficial interest in the licence otherwise than by way of enforcing a loan security.

“(2)Subregulation (1) does not apply to a proposed dealing with a licence if the Secretary has made a declaration under subregulation 2.19 (1) about the dealing.

Secretary may declare that specified dealing with licence not prohibited

“2.19. (1) In this regulation:

‘deal with a licence’ means:

(a)
dispose of the licence by way of declaration of trust; or
(b)
transfer a beneficial interest in the licence otherwise than by way of enforcing a loan security.

“(2) On application by a person who proposes to deal with a licence, the Secretary may declare, by instrument, that

regulation 2.18 does not prohibit the proposed dealing.

“(3) The Secretary must make a decision on the application within 30 days after the application is made.

“(4) In considering whether to make a declaration under subregulation (2), the Secretary must take into account:

(a)
the duration of the licence; and
(b)
the size of the area subject to the licence; and
(c)
the terms of the proposed dealing.

“(5) Before making a declaration under subregulation (2), the Secretary must be satisfied that the dealing, if made, will not frustrate the objects of the Act.

“(6) The Secretary must inform the applicant within 7 days after making a decision on the application, and must give the applicant:

(a)
if the Secretary made the declaration—a copy of the relevant instrument; or
(b)
if the Secretary refused to make the declaration—a statement of the reasons for the refusal.

“(7) If the Secretary makes the declaration, sections 35C and 35D of the Act are taken not to prohibit the dealing.

AAT review of decisions

“2.20. Application may be made under the Administrative Appeals Tribunal Act 1975 to the Administrative Appeals Tribunal for review of a decision of the Secretary:

(a)
not to make a declaration under subregulation 2.05 (1); or
(b)
under subregulation 2.06 (4), to revoke a declaration made under subregulation 2.05 (1); or
(c)
under paragraph 2.07 (1), not to approve a sublease to a State or Territory government, or an authority of a State or Territory government; or
(d)
under subregulation 2.11 (2), not to make a declaration about a proposed dealing with a sublease; or
(e)
not to make a declaration under subregulation 2.13 (1); or
(f)
under subregulation 2.14 (4), to revoke a declaration made under subregulation 2.13 (1); or
(g)
under paragraph 2.15 (1), not to approve a licence to a State or Territory government, or an authority of a State or Territory government; or
(h)
under subregulation 2.19 (2), not to make a declaration about a proposed dealing with a licence.”.

____________

Schedule 2 Regulation 5

New Division 3.2

“Division 3.2—Record-keeping and reporting

Meaning of certain terms

“3.20. (1) In this Division:

‘details’ of a person means:

(a)
if the person is an individual:
(i)
the individual’s name; and
(ii)
the address of his or her usual residence; and
(iii)
his or her citizenship, or (if he or she claims more than 1 citizenship), each citizenship that he or she claims; and
(b)
if the person is a corporation:
(i)
the corporation’s name; and
(ii)
the place in which it is incorporated; and
(iii)
the address of its registered office or principal office; and
(c)
if the person is a foreign government body:

(i)
its name, or the name of the foreign government of which it is an entity; and
(ii)
the address of its principal office.

“(2) A reference to a pair of companies is a reference to a pair of companies set out in the table following section 49 of the Act.

“(3) A term that is used in both this Division and Part 3 of the Act has the same meaning in this Division as in that Part.

[Note: Certain terms used in this Division and Part 3 of the Act are defined in the Schedule to the Act.]

Relationship with Corporations Law

“3.21. To avoid doubt, it is declared that the requirements of this Division are in addition to, and not in substitution for, the requirements of the Corporations Law.

Airport-operator company to keep register

“3.22. (1) An airport-operator company must keep a register of:

(a)
any stake in the company that is held by a foreign person; and
(b)
any stake in the company that is held by an airline; and
(c)
if the company is a member of a pair of companies:
(i)
any stake in the company that is held by the other member of the pair; and
(ii)
any stake in the company that is held by a person that holds a stake in the other member of the pair; and
(iii)
any stake that the company holds in the other member of the pair.

“(2) The register must record, for each stake:

(a)
in the case of a stake that is composed of a direct control interest held by only 1 person:
(i)
the amount of the interest; and
(ii)
what type of interest it is; and
(iii)
details of the person that holds the interest; and
(b)
in the case of a stake that is composed of direct control interests held by 2 or more persons—the information specified in subparagraphs (a) (i), (ii) and (iii) about each of those interests.

[Notes:

1. A person’s stake of a particular type in an airport-operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates—see clauses 5, 11 and 12 of the Schedule to the Act.

2. For the meaning of ‘details’ of a person, see regulation 3.20.]

“(3) The register must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.

[Note: For penalty, see s 60 (4) of the Act.]

Airport-operator company to make return

“3.23. (1) In this regulation:

‘reporting period’, for an airport-operator company, means the period of 1 year ending at the end of the day before the first anniversary of:

(a)
in the case of an airport-lessee company—the date on which the company became the airport-lessee company for the airport; or
(b)
in the case of an airport-management company—the date on which the company became the airport-management company for the airport; or
(c)
the previous reporting day.

“(2) Within 14 days after the end of each reporting period for an airport-operator company, the company must give the Minister:

(a)
a declaration stating whether, in the opinion of the directors:
(i)
an unacceptable foreign-ownership situation existed in relation to the company at any time during the reporting period; and
(ii)
an unacceptable airline-ownership situation existed in relation to the company at any time during the reporting period; and
(iii)
if the company is a member of a pair of companies—an unacceptable cross-ownership situation existed in relation to the pair at any time during the reporting period; and
(b)
either:
(i)
a written return giving the information, as at the reporting day, specified in subregulation (3); or
(ii)
if the company gave a written return giving that information as at a previous reporting day, and there has been no change, for the company, in any matter mentioned in subregulation (3) since that return—a statement that no change has occurred since that return.

[Note: For penalty, see s 60 (4) of the Act.]

“(3) The information is:

(a)
if a foreign person holds a stake, of a particular type, of more than 5% in the company—the amount of the stake, what type of stake it is, and details of the person that holds it; and
(b)
the aggregate of all stakes of a particular kind held by foreign persons; and
(c)
if a stake in the company is held by an airline—details of the airline and the amount and type of the stake; and
(d)
if a person holds a stake, of a particular type, of more than 10% in the company—details of the person, and the amount and type of the stake; and
(e)
if the company is a member of a pair of companies:
(i)
the amount and type of any stake in the company held by the other member of the pair; and
(ii)
the amount and type of any stake in the company held by a person who also holds a stake in the other member of the pair; and
(ii)
the amount and type of any stake held by the company in the other member of the pair; and
(f)
the location of the place where the central management and control of the company is ordinarily exercised; and
(g)
details of any person who is in a position to exercise control over the company, or in accordance with whose directions the directors of the company are accustomed to act; and
(h)
details of each of the directors of the company.

[Notes:

1. A person’s stake of a particular type in an airport-operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates—see clauses 5, 11 and 12 of the Schedule to the Act.

2. For the meaning of ‘details’ of a person, see regulation 3.20.]

“(4) The declaration, and the return or statement, must be signed by a director of the company, and verified by statutory declaration by a director of the company.

“(5) The declaration, and the return or statement, must be approved by the directors of the company by resolution.

“(6) When the company gives the declaration and the return or statement to the Minister, the company must also give the Minister a copy of the resolution.

Minister may request information

“3.24. (1) The Minister may, by written notice given to an airport-operator company, require the company to give the Minister, within any period and in the manner specified in the notice, specified information about:

(a)
an ownership matter relating to the company; or
(b)
the location of the place where the central management and control of the company is ordinarily exercised; or
(c)
details of a director of the company.

“(2) If a period is specified in a notice as the period within which the information must be given to the Minister, the period must be at least 14 days.

“(3) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 14 days of the date of the notice.

“(4) An airport-operator company must comply with a notice under subregulation (1).

[Note: For penalty, see s. 60 (4) of the Act.]

Minister may request copy of the register

“3.25. (1) The Minister may, by written notice given to an airport-operator company, require the company to produce to the Minister, within any period and in the manner specified in the notice, a copy of the register kept by the company under regulation 3.22.

“(2) If a period is specified in a notice as the period within which the copy must be produced to the Minister, the period must be at least 14 days.

“(3) If no period within which the information must be given to the Minister is specified in the notice, the copy must be produced to the Minister within 14 days of the date of the notice.

“(4) An airport-operator company must comply with a notice under subregulation (1).

[Note: For penalty, see s. 60 (4) of the Act.]

Company must inform Minister in certain circumstances

“3.26. (1) An airport-operator company must give the Minister notice in writing if it has reason to believe that:

(a)
an unacceptable foreign-ownership situation, an unacceptable airline-ownership situation or an unacceptable cross-ownership situation exists in relation to the company; or
(b)
the central management and control of the company is no longer being exercised at a place in Australia; or
(c)
a majority of the company’s directors are no longer Australian citizens or persons ordinarily resident in Australia.

“(2) The notice must set out what steps the company has taken, or will take, to establish whether a state of affairs mentioned in paragraph (1) (a), (b) or (c) exists, and what steps it will take to remedy such a state, if it exists.

[Note: For penalty, see s. 60 (4) of the Act.]

Delegation

“3.27. The Minister may, by instrument, delegate any of his or her powers (other than this power of delegation) under this Division to:

(a)
the Secretary; or
(b)
an officer of the Senior Executive Service performing duties in the Department.”.

_____________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 June 1997.
2. Statutory Rules 1997 No. 8 as amended by 1997 Nos. 103, 104 and 113.

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