Bills Digest no. 98 2007–08
Sydney Airport Demand Management Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Sydney Airport
Demand Management Amendment Bill 2008
Date introduced: 20
March 2008
House: House
of Representatives
Portfolio: Infrastructure,
Transport, Regional Development and Local Government
Commencement: The
substantive provisions commence 6 months from the day of Royal Assent
or earlier by Proclamation.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The Bill amends the Sydney Airport Demand Management
Act 1997 removing technical inconsistencies in key terminology, so
as to clarify and strengthen the regulatory arrangements relating to the
demand management scheme.
Background
Sydney Airport Demand Management
Act 1997
The Sydney Airport Demand Management Act 1997 (SADM
Act) provides the framework for the long-term management of aviation demand
at Sydney Airport. The SADM Act is intended to meet the commitment made
by the Howard Government prior to the March 1996 Federal election that
aircraft movements at Sydney Airport would be capped at 80 per hour. In
this respect, the requirements of the SADM Act take precedence over voluntary
coordination practices advocated by the International Air Transport Association
(IATA), and in place at other major Australian airports.[1]
The SADM Act requires Airservices Australia[2] to monitor actual movements and to report quarterly
to the Minister for Transport and Regional Services on the extent of infringements
of the 80 per hour limit in the quarter.
The SADM Act limits aircraft movements at Sydney Airport to a maximum
of 80 per hour. Each arm of the operational requirements created by the
SADM Act is put into effect by legislative instruments made under the
Act. The two most important are:
- The Slot Management Scheme, under which aircraft operators
are required to seek a slot (a permission to undertake an aircraft movement)
from the Slot Manager
- The Compliance Scheme, which requires operators to carry out
authorised aircraft movements within a prescribed tolerance period before
or after the scheduled slot time. The Compliance Scheme also deals with
certain matters concerning the application of penalties to aircraft
operators who operate aircraft without a slot or outside of the prescribed
tolerances.
The combined action of these two instruments is intended to implement
the movement limit, by controlling the scheduling of aircraft movements
under the Slot Management Scheme and requiring timely performance through
the Compliance Scheme.[3]
Key Issues
In 2006 the Australian National Audit Office (ANAO) undertook an audit
to assess the performance of the Demand Management Scheme established
under the existing legislation. The Report was finalised on 7 March 2007.
Amongst other things, the ANAO analysis showed that:
- Elements of the legislative scheme are unclear, do not operate in
the way intended or are ineffective.
- There is evidence of a high number of unauthorised aircraft movements
(i.e. movements without a slot and movements outside the slot tolerances)
having occurred at Sydney Airport. However, since the scheme commenced
in 1998, no infringement notices have been issued to operators or other
penalties applied.
- There is evidence to suggest that record keeping has been unreliable
and consequently reporting and monitoring of breaches of the aircraft
movement limit to Parliament through the Minister have therefore been
inaccurate.[4]
The Bill is aimed at addressing the first of these points.
The concept of ‘aircraft movement’ underpins the operation of the demand
management scheme. In this respect, valid and effective definitions of
aircraft movement are necessary to underpin:
- the allocation of slots
- the enforcement of compliance with the requirement to have a slot
and operate in accordance with the allocated slot time, and
- incumbent aircraft operators retaining historical precedence to slots
they have previously operated.[5]
The definition of aircraft movement in the SADM Act relates to movements
of aircraft on and off runways. Airservices Australia’s monitoring
of the movement limit accords with this definition.
However a different definition is used to administer the Slot Management
Scheme and the Compliance Scheme. This definition relates to movements
from gates, and was adopted for ease of administration by the industry.[6]
During the course of the audit, ANAO drew attention to this inconsistency
in the definition/interpretation of aircraft movement, which is fundamental
to the effectiveness of the demand management scheme.
Legal advice subsequently obtained by the Department of Transport and
Regional Services (DOTARS) was that:
In so far as the definitions in the Compliance Scheme
are inconsistent with the Act, they are invalid and of no effect. However,
while this invalidity has important consequences for the administration
of the SADM Act, the Slot Management Scheme and the Compliance Scheme,
I do not think that it necessarily makes the Act unworkable or the Schemes
as a whole invalid or otherwise unworkable.[7]
ANAO recommended that in view of the importance of valid and effective
aircraft movement definitions to the demand management scheme, DOTARS
take steps to ensure consistency between the Compliance Scheme and the
SADM Act.[8]
DOTARS agreed with this recommendation stating:
The Department has initiated action to seek agreement
to the passage of legislative amendments to improve consistency between
the Act and the Compliance Scheme.[9]
The key change proposed by the Bill is to introduce a distinction between
aircraft movements on the runway and aircraft movements at the gate. The
distinction is significant because the slot management scheme as set out
in the regulations is based on gate movements and the movement limit (i.e.
80 per hour) applies to runway movements.
The proposed amendments would overcome the flaw identified in the ANAO
audit that the day-to-day administration of slot allocation and compliance
do not technically comply with the current SADM Act. More particularly,
the term ‘aircraft movement’ is interchangeably used to describe the two
separate but related actions.[10]
The Minister’s second reading speech emphasises that the Bill does not
change any of the fundamental policy settings but rather the amendments
are essentially technical and will clarify, strengthen and tighten the
regulatory arrangements.[11]
There will be no financial impact.
Existing section 4 provides a summary of the various Parts contained
in the SADM Act. Items 1-3 would amend the section to reflect the
changes proposed by the Bill. Item 1 clarifies that the maximum
movement limit at Sydney Airport is specifically related to aircraft
movements. Item 2 specifies that penalties in Part 3 relate
to unauthorised gate movements and not to unauthorised aircraft
movements. Item 3 adds that Part 5 (Compliance Scheme) will
also deal with the power of the Minister[12]
to determine modifications of the Compliance Scheme.
Section 6 is the central provision of the Act. It restricts the aircraft
movements to a maximum of 80 in any regulated hour of airport operation.
Hourly movements are measured at 15 minute intervals. A regulated hour
is defined to exclude any curfew period. Regulation within the curfew
period is covered by a separate statute, the Sydney Airport
Curfew Act 1995 (the Curfew Act). Items 4 and 5 amend
section 6 clarifying terminology relating to aircraft movement.
Item 6 corrects a drafting error in subsection 8(4). It replaces
a reference to the Legislative Instruments Act 1997 with Legislative
Instruments Act 2003. Item 38 makes an identical amendment
to subsection 46(6).
Items 7–24 propose amendments to Part 3, which is the Part
setting out the penalty regime for the Slot Management Scheme. The majority
of these amendments would replace the term ‘aircraft movements’ with the
concept of ‘gate movements’. For example item 7 amends the title
of Part 3 so that it would read ‘Part 3—Penalties for unauthorised gate
movements’. Item 8 repeals and replaces section 10 setting out
the gate movements (as opposed to the aircraft movements) to which
Part 3 would apply. With the exception of certain movements that are exempt
under the Act, Part 3 will apply to all gate movements (as opposed
to aircraft movements) at Sydney Airport.
Existing part 4 (sections 33 to 47) sets out the Slot Management
Scheme. It is, essentially, a system for the allocation of permission
for an aircraft movement at Sydney Airport within the maximum aircraft
movement limit of 80 per regulated hour. A slot is issued for a specified
aircraft movement at a specified time on a specified day. Again many of
the amendments to Part 4 relate to terminology and will replace the term
‘aircraft movement’ with ‘gate movement’.
For example, existing subsection 33(2) sets out that the basic purpose
of the Slot Management Scheme is to provide a system for the allocation
of permissions for aircraft movements at Sydney Airport within the maximum
movement limit (aircraft movements being defined as runway movements).
Item 25 amends subsection 33(2) so that the basic purpose of the
Scheme would be to provide a system for the allocation of permissions
for gate movements. The system must be consistent with the maximum
movement limit of 80 aircraft movements.
Section 34 deals with the concept of a ‘slot’ and is amended by items
26 and 27 so that a slot would be a permission for a scheduled
gate movement (rather than an aircraft movement). A slot
allocated will permit a specified gate movement at a specified time on
a specified day. Item 28 repeals and replaces subsection 34(3)
so that other laws will apply to gate movements as well as aircraft movements.
Section 35 deals with the contents of the Slot Management Scheme. Items
29, 31 and 34 make similar amendments to this section, replacing
the term ‘aircraft movements’ with ‘gate movements’.
Item 30 amends subsection 35(1) to remove the reference to ‘other
than movements during the curfew period’. The rationale being that this
is an unnecessary phrase as slots cannot be allocated for movement during
the curfew period. The curfew period is dealt with under the Curfew Act.
New subsection 35(1B) is inserted by item 32. It clarifies
that the Scheme must not allow slots to be allocated for times during
curfew periods.
Part 5 of the Act (sections 48–59) deals with the Compliance Scheme
for the Slot Management Scheme. Item 40 would repeal subsection
49(6) to remove the requirement that the Compliance Scheme must include
definitions of when an aircraft takes off or lands. The definitions are
no longer necessary as the Schemes are based on a concept of gate movements
rather than take offs and landings.
Item 41 proposes new section 59A giving the Minister a
new power to make modifications to the Compliance Scheme in exceptional
circumstances. The modifications would be made via a determination which
must be given to the Compliance Committee as soon as practicable. The
determination must set out the Minister’s reasons for the modifications.
The determination would be a legislative instrument but not subject to
disallowance by the Parliament. New subsection 59A(4) clarifies
that modifications made by the Minister under this section do not have
to comply with the Compliance Scheme. The Explanatory Memorandum states
that exceptional circumstances will be events, such as major changes to
the operations of all airlines for reasons beyond the airlines’ control,
that impact on airline on-time performance for a period of time. It cites
as examples the collapse of Ansett in 2001 and the events immediately
following September 11, 2001.[13]
Part 8 of the Act deals with miscellaneous matters including Ministerial
delegations. Section 71 allows the Minister to delegate certain powers
to the Secretary and Senior Executive Service officers in the Department.
Item 44 amends section 71 so that the Minister may also delegate
the power to make appointments to the Compliance Committee.[14]
According to the Explanatory Memorandum the seven members of the Compliance
Committee are representatives of domestic, regional and international
airlines, Airservices Australia and Sydney Airport Corporation Limited.[15]
In addition, it states that members of the Committee are ‘nominated’ by
their respective organisations[16]
– although as a matter of law these nominees are appointed to the Committee
by the Minister (or under proposed item 44, the Minister’s delegate)
under existing subsection 66(3).
Items 43 and 45 are savings provisions. Their effect is
that delegations in force under section 70 made prior to commencement
of the Bill and evidentiary certificates made under section 71 prior to
commencement would continue to have effect.
Item 46 amends paragraph 74(2)(b). It would allow the regulations
to prescribe penalties of up to 50 penalty units for offences against
the regulations.[17] The
current limit is 10 penalty units. In the second reading speech the Minister
outlined his commitment to producing regulations to penalise both ‘no-slot’
and ‘off-slot’ gate movements. A regulation to enable the Slot Manager
to require operators to provide information and impose penalties for failure
to comply is proposed.[18]
However the regulation had not been publicly released at the time of preparing
this bills digest. The increased amounts in item 46 relate to that proposed
regulation.
Schedule 1 of the Act contains definitions relevant to the Act. Items
47 – 54 make amendments to these definitions to reflect the changes
proposed in the Bill. For example item 51 inserts a new definition
of ‘gate movement’ to reflect that a gate movement is the first movement
of an aircraft in preparation for an aircraft movement that is a take-off
and the last movement after a landing when the aircraft comes to a standstill
and the engines are turned off.[19] This new definition is related to the numerous amendments that
replace ‘aircraft movement’ with the concept of a ‘gate movement’.
Items 52 and 54 would remove the definitions of land and
take off. This is consequential to the fact that the Compliance Scheme
would no longer define when an aircraft takes off or lands.
Concluding comments
The 2007 ANAO audit highlighted the need for some improvement in administration
of the slot management scheme at Sydney Airport. It states:
… the SADM Act requires Airservices Australia to monitor
and report breaches of the movement limit to the Parliament through
its Minister. However, reliable and accurate records do not exist to
evidence past monitoring of compliance with the movement limit, and
support the reports made to the Parliament. The available data indicates
that some of the 61 reported breaches may not, in fact, have occurred.
This data also indicates that there may have been many other, unreported,
breaches of the movement limit.[20]
The possibility that these Ministerial reports made to Parliament may
have been inaccurate is a matter of serious concern. Whilst this Bill
and the previously mentioned proposed regulations should improve the scheme’s
compliance framework, it would useful if the Government provided more
information on the specifics on how it will ensure the accuracy of all
future reporting.
http://www.anao.gov.au/uploads/documents/2006-07_Audit_Report_29.pdf
Accessed on 24 April 2008
This section of the Digest draws heavily on the ANAO report.
[6]. DOTARS advised ANAO in February
2007 that the Slot Management Scheme and the Compliance scheme are premised
on definitions of ‘take off’ and ‘land’ consistent with worldwide practice.
ibid., p. 22.
[12]. The Minister for Infrastructure,
Transport, Regional Development and Local Government.
Mary Anne Neilsen
6 May 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
|
