Airports Amendment Regulations 2003 (No. 3) 2003 No. 302
EXPLANATORY STATEMENT
STATUTORY RULES 2003 No. 302
Issued by the authority of the Minister for Transport and Regional Services
Airports Act 1996
Airports Amendment Regulations 2003 (No. 3)
Section 252 of the Airports Act 1996 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted under the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 33(1) of the Airports Act 1996 provides for an airport-lessee company to enter into an airport-management agreement with a qualified company that is approved in writing by the Minister. Under subsection 33(7), the criteria for an airport-management agreement is that the airport-management company, either alone or together with the airport lessee company and/or another person(s), must be in a position to exercise control over either or both of the following:
• the operation of the whole or a substantial part of the airport; or
• the direction to be taken in relation to the development of the whole or a substantial part of the airport.
Paragraph 2.09(1)(a) of the Airports Regulations 1997 (the Principal Regulations) provided that an airport sublease is required to contain terms to the effect that the sublease is automatically terminated upon the creation of an interest in the sublease in favour of a person who is in a position to exercise the type of control described in subsection 33(7) of the Act. This provision raised uncertainty as to whether an airport-management company was precluded from having a sublease on the airport. This was an unintended consequence of the wording of regulation 2.09.
The Regulations amend paragraph 2.09(1)(a) of the Principal Regulations to clarify that a sublease entered into by an airport-management company is not terminated by the operation of regulation 2.09.
Paragraphs 1.03(1)(ia) and (pa) of the Principal Regulations provide that, for the definition of airport site in section 5 of the Act, Hoxton Park and Sydney (Kingsford Smith) Airports are the places made up of the land described in Parts 1.9A and 1.16A of Schedule 1 of the Principal Regulations respectively.
The descriptions in those parts of Schedule 1 required updating because the Commonwealth disposed of an area of Hoxton Park Airport to the NSW Roads and Traffic Authority for the construction of the Westlink M7 (Western Sydney Orbital). Also, the Commonwealth has acquired access rights over a railway line from NSW StateRail to provide access between Sydney Airport and land acquired from Pacific Power and the NSW Department of Public Works and Services.
The amendments changed the definition of the Hoxton Park and Sydney (Kingsford Smith) Airports sites to reflect the new property descriptors of the changed areas.
Accordingly, the Regulations amended Schedule 1 "Airport Sites" as follows:
1) "Part 1.9A Hoxton Park Airport" - replaced reference to folio identifier 1/546264 with folio identifier 22/1042996; and
2) "Part 1.16A Sydney (Kingsford Smith) Airport" - added folio identifier 1/1054373.
The Act specifies no conditions that needed to be met before the power to make the Regulations could be exercised.
The Regulations commenced on gazettal.
Overview
The Airports Amendment Regulations 2003 (No. 3) were enacted to address certain ambiguities and update the property descriptors within the Airports Regulations 1997, as required by the Airports Act 1996. This set of regulations was issued under the authority of the Minister for Transport and Regional Services, aiming to ensure clarity and accuracy in the legal framework governing airport management and subleasing. The primary issue the Regulations sought to resolve was the uncertainty surrounding the automatic termination of airport subleases when an airport-management company gained control over the airport, an unintended consequence of previous regulatory wording. Additionally, the Regulations updated the descriptions of Hoxton Park and Sydney (Kingsford Smith) Airports to reflect changes in land ownership and usage, thereby ensuring the regulatory framework remains current and reflective of the physical realities on the ground. The amendments were designed to streamline operations and provide legal clarity for airport-related activities, ensuring that all stakeholders have a clear understanding of their rights and obligations.
Scope and Application
The Airports Amendment Regulations 2003 (No. 3) applies to entities such as airport-lessee companies, airport-management companies, and sublessees involved in the management or operation of airports in Australia, specifically Hoxton Park Airport and Sydney (Kingsford Smith) Airport. The Regulations aim to amend and clarify the terms of airport subleases under the Airports Act 1996 and the Airports Regulations 1997, ensuring that airport-management companies can enter into subleases without automatic termination due to the exercise of control over the airport. The geographic scope of the Regulations is national, applying to all airports listed in the Schedule 1 of the Principal Regulations, and they are enacted under the authority of the Minister for Transport and Regional Services. The Regulations include specific amendments to reflect changes in property descriptors following disposals and acquisitions of airport land, and they do not impose any exclusions, exemptions, or thresholds. The Regulations also extend the application of the Act by amending the Principal Regulations to address unintended consequences in the previous wording of regulation 2.09, and they commenced upon gazettal, immediately becoming effective.
Key Provisions
The Airports Amendment Regulations 2003 (No. 3) clarify and update certain provisions of the Airports Regulations 1997, primarily addressing the definition of airport sites and the termination of subleases for airport-management companies. Section 33 of the Airports Act 1996 allows the Minister to approve airport-management agreements under which a qualified company can control the operation or development of an airport. Regulation 2.09(1)(a) of the Principal Regulations previously caused confusion regarding whether an airport-management company could sublease an airport, as it implied such subleases would automatically terminate if the sublessee gained control over the airport. To rectify this unintended consequence, the Regulations amend paragraph 2.09(1)(a) to clarify that a sublease by an airport-management company is not automatically terminated by the operation of regulation 2.09.
The Regulations also update the definitions of the Hoxton Park and Sydney (Kingsford Smith) Airport sites in Schedule 1 to reflect changes in the areas of these airports. Specifically, the folio identifier for Hoxton Park Airport has been updated to 22/1042996, replacing the previous reference, due to the disposal of part of the airport land to the NSW Roads and Traffic Authority for the construction of the Westlink M7 (Western Sydney Orbital). Additionally, the definition of Sydney (Kingsford Smith) Airport has been amended to include a new folio identifier, 1/1054373, to account for the acquisition of access rights over a railway line from NSW StateRail.
The Regulations impose no specific obligations or requirements on the parties or entities they govern beyond those already stipulated in the Airports Act 1996 and the Airports Regulations 1997. The amendments serve to provide clarity and ensure that the regulations align with current property descriptors and do not inadvertently terminate valid subleases. The Regulations came into effect immediately upon gazettal.
There are no offences, penalties, or civil or criminal consequences specified for breach of these Regulations. The primary purpose of the amendments is to correct misinterpretations and update property descriptions to ensure the continued smooth operation of the airports and their management agreements.