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Airport Assets (Restructuring and Disposal) Bill 2008
Airport Assets (Restructuring and
Disposal) Bill 2008
Explanatory Notes
General Outline
Policy Objectives
The purpose of the Bill is to facilitate the restructure and divestment of the
State's interest in Cairns and Mackay Airports held by Cairns Ports Ltd
(Cairns Ports) and Mackay Ports Ltd (Mackay Ports), together with Port of
Brisbane Corporation Ltd's shareholding in Brisbane Airport, held by
Gateway Investments Corporation Ltd (Gateway) (a subsidiary of the Port
of Brisbane Corporation Ltd) by the end of December 2008, and associated
purposes; and to amend the Energy Assets (Restructuring and Disposal)
Act 2006 (EARDA) to revive certain powers in relation to the continuing
project to sell the Government Owned Corporation wind farm at Emu
Downs (and development opportunities) (SWAG Project).
Reasons for the Bill
Legislation is required to facilitate the restructure and disposal of the
Cairns and Mackay Airports, the disposal of the Government's
shareholding in Brisbane Airport, and to provide for a planning regime and
other particular matters about the continuing operation of the airports at
Cairns and Mackay; and to amend the EARDA to continue in effect certain
powers to complete the SWAG Project.
Achievement of the Objectives
The Bill achieves its main policy objectives by:
(a) facilitating the creation of stand alone airport businesses operated by
new subsidiaries of Cairns Ports Ltd and Mackay Ports Ltd
(collectively the ports corporations);
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Airport Assets (Restructuring and Disposal) Bill 2008
(b) facilitating a competitive disposal process being conducted for the
divestment of the State's interest in Cairns and Mackay Airports,
together with its shareholding in Brisbane Airport;
(c) modifying the current planning regime for the airport land, so as to
transfer assessment powers from the ports and Queensland Transport
to the Department of Infrastructure and Planning and ensure that the
integrated development assessment system (IDAS) applies more
effectively to the assessment of applications;
(d) conferral on the Treasurer of the power to give directions and to make
transfer notices to transfer the assets of ports corporations (including
the exercise of powers under various legislation) to restructure and
divest the airport businesses of the ports corporations;
(e) conferral on the Treasurer of a power to deem the form of an
instrument and which parties (including third parties) are bound by
that instrument as part of the divestment process;
(f) ensuring that appropriate controls are available to the airport operators
over the airport land, including the provision for certain exemptions to
be granted from local laws, where application of such laws would not
be appropriate for the operation of the airport;
(g) clarification of the position in respect of land tax and rates with
respect to the airport lessees; and
(h) amending the Energy Assets (Restructuring and Disposal) Act 2006 to
revive the Treasurer's powers to give project directions and make
transfer notices to complete the SWAG Project.
Alternatives to the Bill
The policy objectives can only be implemented through primary
legislation.
Estimated Cost for Government Implementation
The cost of administering the Bill in respect of the divestment of the airport
businesses and the shareholding in Brisbane airport will be defrayed by the
proceeds of the disposal of these assets. The ongoing costs of the
administration of the planning regime and other administrative provisions
in respect of the airport land at Mackay and Cairns, will be primarily be
defrayed from the receipt of fees from the airport lessee (and sub-tenants)
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Airport Assets (Restructuring and Disposal) Bill 2008
for planning applications and certificates under the Integrated Planning Act
1997.
Consistency with Fundamental Legislative Principles
On 15 April 2008, the Government announced the divestment of its interest
in Cairns International Airport and Mackay Airport, together with its
shareholding in Brisbane Airport. The Government intends to apply the
funds realised from the divestment of the Cairns International Airport and
Mackay Airport towards new health infrastructure in North Queensland.
The Government Airport Transaction Team (ATT) has
commenced:
(i) the process of identifying and examining the airport assets and
liabilities of the Mackay Ports and Cairns Ports for the purpose of
restructuring the businesses into airport entities; and
(ii) the disposal processes for the State's shareholding in Brisbane
Airport.
The Bill is essential to enable the Queensland Government to restructure
and dispose of the airport businesses. It is a preference of the Government
that the disposal be affected on the basis of a 99 year lease of the land
involved. Thus the restructuring of Cairns Ports and Mackay Ports airport
businesses for disposal will require the establishment for each of the Ports
Corporations of an airport lessor company and an airport lessee company
which will be the disposal vehicles. This will involve a complex
commercial and legislative process due to amongst other things:
(a) improvements in the planning regime for the airport land;
(b) the provision of appropriate powers to the airport lessee to control the
behaviour of people and the movement of vehicles on airport land to
ensure the operation of the airport and safety and security of users;
and
(c) the provision of safeguards to ensure that airport lessees handle their
powers in a responsible manner.
The timeframe for the disposal of the appropriately structured airport
entities is set for the end of 2008. The restructuring provisions under the
Bill, particularly in relation to the Minister's powers, will cease to operate
on 30 June 2009. The Bill is essential to facilitate the restructure of the
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Airport Assets (Restructuring and Disposal) Bill 2008
airport entities within this strict timeframe and to ensure that the best
commercial outcome is achieved for the State. Any delay in the restructure
or disposal processes will reduce the receipts to Government for the
commercial value of the businesses.
The Bill is designed to deal with a complex range of novel issues that arise
out of the restructure of the airport entities within the current legislative
framework that regulates these entities
The Bill raises the following issues relevant to fundamental legislative
principles:
(a) Rights and liberties of individuals, facilitation of evidence by
certificate - Legislative Standards Act section 4(3) and 4(3)(a). The
Bill may not be consistent with the principles of natural justice in that
clause 29 provides that the Treasurer may issue a certificate as
conclusive evidence in relation to matters done under Chapter 2. For
example, the Treasurer may issue a certificate identifying that certain
information was authorised to be disclosed by a Ports Corporation or
its subsidiaries to a prospective purchaser for the purpose of this
project. Such a certificate would prevent a person bringing any
contrary evidence to challenge the validity of the certificate. Given
the State's proposed timeframe and the need for certainty for this
project, any legal proceedings would "derail" the disposal process.
(b) Rights and liberties of individuals, decisions not reviewable -
Legislative Standards Act section 4(3) and 4(3)(a). Clause 20
provides that a decision under this Act is final and conclusive; cannot
be challenged, appealed against, reviewed, quashed, set aside or called
into question in any other way, under the Judicial Review Act 1991 or
otherwise (whether by Supreme Court, another court, a tribunal or
another entity); and is not subject to any writ or order of the Supreme
Court, another court, a tribunal or another entity on any ground.
Given the State's proposed timeframe and the need for certainty and
speed in which things need to be done for this project, any legal
proceedings would "derail" the divestment process. The exclusion of
review in relation to things done under this Bill is on the basis that this
is a significant commercial project and the purchasers of the airport
assets require certainty in the current economic conditions. Also, the
State would suffer a significant financial detriment if it was delayed in
restructuring the State owned airport assets and their subsequent
disposal. It is necessary to limit the ability of third parties to
unreasonably delay the implementation of this project.
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Airport Assets (Restructuring and Disposal) Bill 2008
(c) Rights and liberties of individuals, no entitlement to compensation -
Legislative Standards Act section 4(3) and 4(3)(a). Clause 52
provides a person is not entitled to compensation under the Planning
Act, chapter 5, part 4, or any other law in relation to a change to a
LUP affecting the person's interest in any airport land. There is no
common law right to compensation if a land use plan is amended.
However, it is arguable that there may possibly be a right to
compensation which arises from the operation of the Acts
Interpretation Act 1954 to existing rights. The Bill balances this
possible impact upon the rights and liberties of an individual by
providing for the person's existing uses and rights under current
development approvals to continue despite any change to the LUP.
Such a provision is appropriate having regard to the fact that there is a
clear process for the review of LUPs in the Bill, generally every 8
years, involving public consultation.
(d) Rights and liberties of individuals, liability for acts of authorised
officers and related persons. - Legislative Standards Act section 4(3)
& conferring immunity from liability - Legislative Standards Act
section 4(3)(h). Clause 96 provides that the airport lessee is civilly
liable for the actions of an authorised officer, rather than the airport
lessor and confers immunity on an authorised officer acting honestly
and without negligence. This provision sheets liability to the airport
operator rather than to the State owned airport lessor of the airport
land. This is consistent with the high standard of responsible conduct
required by the Government of private sector airport operators of the
Cairns International Airport and the Mackay Airport. Further the
rights of persons who allege loss or damage arising from the conduct
of authorised officers are preserved, since such claims may be brought
against the airport lessee.
(e) Rights and liberties of individuals, disclosure of confidential
information and the deeming of a third party's consent - Legislative
Standards Act section 4(3) & conferring immunity from liability -
Legislative Standards Act section 4(3)(h). There are three
circumstances in which third parties' commercial rights may be
affected by the Bill in respect of the restructuring and disposal
provisions:
� the disclosure of confidential information without third parties'
consent;
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Airport Assets (Restructuring and Disposal) Bill 2008
� the transfer of businesses, assets and liabilities between the Ports
Corporation and its subsidiary without third parties' consent by
gazetted transfer notice issued by the Treasurer; and
� the deeming of third party consent eg to a change of control provision
in a commercial agreement upon disposal of the airport entities to a
purchaser.(i.e. parties to the Deed of Covenant in respect of the
Brisbane airport shareholding;
(i) For the purposes of this project, the Ports Corporations have been
required by direction under section 124 of the Government Owned
Corporations Act 1993 ("the Shareholding Ministerial direction") to
co-operate with the State and its advisors in identifying and examining
the assets and liabilities of. Cairns Ports, Mackay Ports and Gateway.
The Ports Corporations and their subsidiaries are concerned that they
and their employees may be sued by a third party for a breach of
contract or confidence in relation to the disclosure of confidential
information to the State and its advisors. This is particularly the case
for Gateway which can not be given a Shareholding Ministerial
direction and thus acts voluntarily to disclose confidential information
to the Port of Brisbane Corporation Ltd and the State's advisors which
may be to the detriment of the directors of Gateway.
(ii) The ATT has established a "vendor data room" which contains
information in the possession and control of the Ports Corporations
and their subsidiaries. Pursuant to clause 23, the State is entering into
a confidentiality agreement with prospective purchasers for the
purpose of giving access to information in the possession or control of
a Ports Corporation or its subsidiaries.
(iii) Clauses 24 and 25 authorise a Ports Corporation or its subsidiary to
disclose information to persons involved in the project, prospective
purchasers and other Ports Corporation or its subsidiaries for the
purpose of the project. Clause 25 overrides any condition contained in
an agreement between a third party and a Ports Corporation or its
subsidiaries that certain information (including the terms of the
relevant agreement) cannot be disclosed to any person without that
third party's consent.
(iv) To achieve the State's proposed timeframe, it is not possible to obtain
the necessary consents from the relevant third parties to disclose the
requisite information to the prospective purchasers. At the same time,
this information needs to be provided to prospective purchasers for the
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Airport Assets (Restructuring and Disposal) Bill 2008
purpose of them being able to make an informed decision. If this
information is not provided, the State is at risk of being guilty of
providing false and misleading information. The purpose of clauses
24 and 25 is to facilitate the due diligence and disposal processes.
This clause will also overcome the need for the relevant Ministers to
continue to issue directions to the Ports Corporations and their
subsidiaries relating to disclosure of information to the ATT for the
purposes of the project
(v) Similar provisions to clause 12 (Transfer Notice), clause 23
(Confidentiality Agreement with Prospective Purchasers), clause 24
(Disclosure and Use of Information for the Project), clause 25 (Effect
on Legal Relationships) and clause 29 (Evidentiary Aids) were
contained in the Energy Assets (Restructuring and Disposal) Act
2006.
(v) The transfer notice power in this Bill will also empower the Treasurer
to deem the form of an instrument and which parties (including third
parties) are bound by that instrument. This is intended to deal with the
divestment of part of Port of Brisbane Corporation's interest in the
Brisbane Airport. The BACH Shareholders Agreement requires that
all other shareholders consent to the divestment of the Port of
Brisbane Corporation's subsidiary Gateway's interest in the Brisbane
Airport by agreeing and signing a deed of covenant. In a previous
divestment of part of Gateway's interest in the Brisbane Airport, the
process of signing a deed of covenant was protracted due to the
conduct of other shareholders seeking a collateral commercial
advantage. Further the State has experienced difficulties in
completing the sale of Emu Downs Wind Farm in Western Australia
due to the refusal of a joint venture party to consent to the sale. The
powers would, if used, affect third party rights but this is considered
appropriate in this circumstance if this large capital value divestment
were to be unreasonably held up or prevented by other shareholders
seeking to hold the State to ransom to gain a collateral commercial
advantage.
(vi) The Bill's objective is to facilitate and ensure the completion of the
disposal process by December 2008. If the Bill does not override
some third parties' rights, it would not be possible for the restructure
of the businesses to occur in a manner which maximises the return to
the State, and enable this project to be completed within the State's
proposed timeframe. This is a significant commercial project and the
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Airport Assets (Restructuring and Disposal) Bill 2008
purchasers of the airport assets require certainty. Also, the State
would suffer significant financial detriment, if the State was delayed
in restructuring the airport business of the State-owned Ports
Corporations and the subsequent disposal of those businesses.
Consultation
Community and Business Policy consultation on this issue is not
considered appropriate. However, consultation will occur with the local
governments at Mackay and Cairns when the Bill has been introduced to
Parliament.
The Department of Infrastructure and Planning and the Department of
Transport have been closely consulted on the Bill, having regard to the
impact upon their responsibilities. Comments received from both
Departments in response to Ministerial briefing notes have been reflected
in the legislation, particularly in respect of Chapter 4, Planning.
Given that clause 16 of the Bill provides that the acts of the Minister under
this Act is an excluded matter for the Corporations Act, it will be necessary
to consult with the Ministerial Council as soon as possible, seeking their
comments about the proposed section.
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Airport Assets (Restructuring and Disposal) Bill 2008
Notes on Provisions
Chapter 1 Preliminary
Part 1 Introduction
Clause 1 specifies the name of the Act.
Clause 2 provides for the commencement of the Bill. Sections 130 and
Chapter 7 Part 7 commence on a proclamation. The balance of the Bill
commences on Royal Assent.
Clause 3 states the main purposes of the Act.
Part 2 Interpretation
Clause 4 refers to the dictionary in schedule 3 where particular words used
in the Act are defined.
Clause 5 defines the term "project". This definition assists to circumscribe
the limits of the powers granted in the Bill to affect the purpose.
Clause 6 defines the term "airport entities". This definition assists to define
the extent of the powers granted under Chapter 2 in respect of the
restructure of the airport entities.
Clause 7 defines the term "airport land". This definition assists to limit the
application of the powers under of the Minister under the Bill.
Clause 8 defines the term "Cairns airport land". The operation of the
definition is delayed until completion day, which is defined in schedule 3
for Cairns International Airport, or Mackay Airport (as the case may be) as
the day on which an entity is declared under section 100(1)(c) of the Act to
be an airport lessee for that airport.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 9 defines the term "Mackay airport land". The operation of the
definition is delayed until completion day.
Clause 10 defines the term "functions".
Chapter 2 Restructure and disposal of
airport entities and related
matters
Part 1 Particular Ministerial powers and
activities relating to the project
Clause 11 provides that the Minister may take any necessary or incidental
action for the purposes of facilitating the disposal of an airport entity or of
a business, asset or liability of an airport entity, and to ensure the continued
operation of airport entities. The operation of this clause is limited to the
purpose of the project and only in relation to airport entities.
Clause 12 provides that the Minister may, by gazette notice, do a number of
things for the purposes of the project, including:
(a) transferring an asset and related records from an airport entity to
another airport entity;
(b) making certain transactions under the Land Act 1994 in relation to
airport land;
(c) licensing the airport entities under such acts as the Environmental
Protection Act 1994, Nature Conservation (Administration)
Regulation 2006, the Water Supply (Safety and Reliability) Act 2008
and the Dangerous Goods Safety Management Regulation 2001; and
(d) deeming the form of an instrument and which parties (including third
parties) are bound by that instrument.
The Minister's power under clause 12 is limited to the purpose of the
project and to airport entities.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 13 provides limitations on the Minister's power to second
employees of an airport entity under clause 10. For example, the
secondment of an employee under a transfer notice must not reduce the
employee's status or unreasonably change the employee's duties, without
the employee's consent.
Clause 14 provides that the Minister may give a direction to an airport
entity or its board requiring it to do something necessary and convenient to
assist in the disposal of an airport entity or the business, assets or liabilities
of an airport entity. A board is required to comply with a direction given
pursuant to this section. This clause is similar to provisions relating to
project directions under the Energy Assets (Restructuring and Disposal)
Act 2006
Part 2 Application of other laws and
instruments
Clause 15 provides for the validity of acts done under the Chapter 2 of the
Act despite contrary provisions under any other Act or instrument.
Clause 16 is a displacement provision for the purposes of section 5F of the
Corporations Act 2001(Cth).
Clause 17 provides that no duty under the Duties Act 2001 is payable in
relation to anything done under a transfer notice issued by the Minister
under the Act.
Clause 18 excludes the operation of section 121 of the Property Law Act
1974 (Provisions as to covenants not to assign etc. without licence or
consent) over the lease of airport land granted by an airport lessor. Thus
the airport lessor is not subject to a statutory obligation to act reasonably in
considering a request by the airport lessee to assign the lease of the airport
land.
Clause 19 provides that where a transfer notice or project direction results
in the disposal of a public record, the public record is taken to be disposed
of under legal authority, justification or excuse for the purposes of section
13 of the Public Records Act 2002.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 20 provides that a decision made under the Act is final and
conclusive and is not subject to challenge or review under the Judicial
Review Act 1991, or otherwise.
Part 3 Miscellaneous
Clause 21 provides that the Minister may not perform a function under
Parts 3, 4 or 5 of the Act on or after 1 July 2009.
Clause 22 provides that the registrar of titles may without formal
application register the transfer of an asset or liability under a transfer
notice issued by the Minister under the Act. However, the registrar of titles
must register the transfer if a written application is made by a transferee
entity. This clause also requires the registration of a transaction related to a
transfer under a transfer notice even if the transferee entity has not been
registered as a proprietor of the asset or liability provided that the
transaction is effected by an instrument otherwise in registrable form. In
addition, this clause provides that the registrar of titles is not obliged to
enquire as to whether an asset or liability has been transferred under a
transfer notice provided that the asset or liability is registered in the name
of a transferor entity before registering a dealing.
Clause 23 provides that a prospective purchaser may enter into a
confidentiality agreement with the State for the purpose of obtaining access
to information in the possession or control of an airport entity.
Clause 24 (1) provides that a person may disclose information in the
possession or control of an airport entity for the purpose of the project.
Clause 24(1) limits disclosure to those persons who are involved with the
project or have entered into a confidentiality agreement mentioned in
clause 23, and to airport entities (including any employee or agent). Clause
24(2) compels an airport entity or its board to comply with a request by the
Minister for the disclosure of information for the purpose of the project. A
person, who in acting honestly discloses or uses information under clause
24 or pursuant to a confidentiality agreement mentioned in clause 23, is not
liable in relation to any civil, criminal or other administrative action under
the Act in relation to that use or disclosure.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 25 provides that existing legal relationships continue despite
anything done under the Act and protects the State and other prescribed
entities from liability for things done under the Act. Clauses 25(2) and (3)
provide that where notice or consent is required to do something under the
Act that notice or consent is taken to be given unconditionally.
Clauses 23, 24 and 25 are read together to facilitate the restructure and
disposal of the selected airport entity assets. For example, if a commercial
agreement contains a confidentiality clause permitting the disclosure of
confidential information to another person if required by law, clause 24(2)
will be regarded as a sufficient lawful authority to do so. If a commercial
agreement includes a condition that certain information (including terms of
the relevant agreement) cannot be disclosed to any person without that third
party's consent, clause 25 will operate to override that condition by
deeming that consent has been given unconditionally. Clause 23 will
ensure that a prospective purchaser who is the recipient of such information
is subject to confidentiality obligations that may be attached to the
information.
Clause 26 provides that a thing is taken to be done under this Act in
compliance with a transfer notice or a project direction even if steps are
required to be taken under another Act. For example if the Minister grants
a sub-lease of land under the Land Act 1994 by way of a transfer notice, the
grant is deemed to be done under this Act and due to the operation of
clause 23(2) of the Act, any consent required under the Land Act 1994,
section 322 is taken to have been given unconditionally.
Clause 27 preserves all rights, benefits, entitlements or remuneration of
employees seconded from an airport entity to another airport entity as part
of any action taken to facilitate the disposal of the assets and liabilities of
an airport entity to the extent permitted by the Workplace Relations Act
1996 (Cth).
Clause 28 preserves all rights, benefits, entitlements or remuneration of
employees transferred from an airport entity to another airport entity as part
of any action taken to facilitate the disposal of the assets and liabilities of
an airport entity to the extent permitted by the Workplace Relations Act
1996 (Cth).
Clause 29 provides that the Minister's certificate is conclusive evidence
that a stated thing was, or is being done for the purpose of facilitating the
disposal of the assets and liabilities of an airport entity, or that person is, or
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Airport Assets (Restructuring and Disposal) Bill 2008
was at a stated time involved in the process of facilitating the disposal of
the assets and liabilities of an airport entity, or that a company was
established for the purpose of facilitating the disposal of the assets and
liabilities of an airport entity.
Chapter 3 Provisions about land use
plans and development on
airport land
Part 1 Land use plans for airport land
Division 1 Preliminary
Clause 30 provides definitions relevant to the contents of land use plans
and their assessment.
Division 2 Airport lessee's first land use plan
Clause 31 enables the Minister to gazette and notify the first land use plan
for each of the airports after completion day. These initial land use plans
will be based on plans which had previously been prepared by the port
authorities, when the airport land was strategic port land, with appropriate
modifications for the purpose of the planning regime under this Chapter.
Similar to Section 319A Mineral Resources Act 1989 in relation to mining
tenements, there is a new provision enabling a notation to be placed
immediately on local government planning schemes identifying the airport
land, for the information of the public.
Clause 32 provides for the first land use plan to take effect upon gazettal.
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Airport Assets (Restructuring and Disposal) Bill 2008
Division 3 Initial requirement to make new plan
or amend first land use plan
Clause 33 requires an application for amendment or replacement of the first
land use plan within 2 years. This will enable the airport lessee to propose
changes to the plan and also for additional contents to be included at that
stage, in particular as a minimum, a schedule of charges and a priority
infrastructure plan. In the meantime, charges will be assessed on a
case-by-case basis.
Division 4 Land use plans - generally
Clause 34 requires review of land use plans at least every 8 years,
consistently with the requirement for land use plans for strategic port land
under the Transport Infrastructure Act 1994.
Clause 35 sets out the minimum content requirements for land use plans
and also some examples of additional contents which may be included.
Clause 36 provides for a statement of proposal process similar to the
process applicable to amendments or replacements of land use plans for
strategic port land under the Transport Infrastructure Act 1994, except that
this will not be required either to remove land from a land use plan or for
defined minor amendments, consistently with the minor amendment
definition applicable to planning instruments under the Integrated Planning
Act 1997.
Clause 37 provides for preparation of a draft plan for the amendment or
replacement of a land use plan, similar to the process for land use plans for
strategic port land under the Transport Infrastructure Act 1994.
Clause 38 provides for a consultation process similar to the process for land
use plans for strategic port land under the Transport Infrastructure Act
1994, except that the consultation period for a statement of proposals is
proposed to be reduced, given that there is a second consultation period
available for the draft plan itself.
Clause 39 requires the planning Minister to consider whether or not State
interests would be adversely affected, consistent with the requirement for
assessment of planning instruments under the Integrated Planning Act
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Airport Assets (Restructuring and Disposal) Bill 2008
1997. It also introduces a new requirement for the planning Minister to
respond to any submission by a local government.
Clause 40 provides for the planning Minister to require amendments to a
draft plan, consistently with the process for land use plans for strategic port
land under the Transport Infrastructure Act 1994.
Clause 41 provides criteria for the planning Minister's consideration of the
draft amendment or replacement land use plan, reflecting both the
consultation process and content requirements. If the planning Minister is
satisfied that the local government has raised a substantial objection which
has not been addressed by an amendment under Clause 40, the planning
Minister must refer the draft plan and the substantial objection to the
Governor in Council for consideration.
Clause 42 requires the airport lessee to publish the current plan on its
website.
Division 5 Local government charges for
infrastructure
Clause 43 relates to the preparation process and the contents of the charges
schedule, which is required to be included in a land use plan after the first 2
years. A consultation process is applicable to preparing the charges
schedule, whether this is done by way of an amendment or replacement
land use plan. In particular, sub-section (3) is intended to prevent charges
from being calculated on the basis of notional yield rates for the airport
land or any part of it. Given that airport land normally includes areas such
as buffer precincts and other minimally developed areas, the methodology
that has been used to calculate local government charges in some local
government areas in Queensland, on the basis of higher notional yield rates
for development than the actual development assessed, would be
inappropriate for airport land.
Division 6 Other matters
Clause 44 provides for the local government to be notified of any amended
or replacement plan and enables the local government's planning scheme to
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Airport Assets (Restructuring and Disposal) Bill 2008
be updated accordingly, similar to the notification of mining tenements to
local governments under Section 319A Mineral Resources Act 1989.
Clause 45 provides for a land use plan to cease to apply immediately upon
any parcel of land ceasing to be part of the airport land.
Clause 46 enables the planning Minister to give notice to the airport lessee
in the event of non-compliance with a requirement under this part to make
or amend a land use plan, or in other limited circumstances where an issue
has arisen which requires attention before the next land use plan is due for
review. The airport lessee must comply with a direction.
Part 2 Relationship with Planning Act
and particular matters about
development on airport land
Division 1 Preliminary
Clause 47 provides for the Integrated Planning Act 1997 to apply to
development on airport land, to avoid any doubt. If there is any
inconsistency between this part and the Integrated Planning Act 1997, this
part prevails.
Division 2 Particular provisions about
development on airport land
Clause 48 continues to exempt the airport land from planning schemes,
consistently with the previous exemption applicable under the Transport
Infrastructure Act 1994.
Clause 49 enables land use plans to state that consistent development is
exempt, self-assessable or assessable development under the land use plan,
consistently with provisions relating to planning schemes under the
Integrated Planning Act 1997. However, land use plans cannot override the
list of exempt development under Schedule 9 Integrated Planning Act 1997
or the list of self assessable development under Schedule 8 Part 2
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Airport Assets (Restructuring and Disposal) Bill 2008
Integrated Planning Act 1997, in the same way as planning schemes cannot
override these provisions. Land use plans also cannot make defined 'core
airport infrastructure' that is consistent with the land use plan assessable
development.
Clause 50 introduces a new role for the relevant local government as advice
agency upon any development application which is required to be assessed
by the planning chief executive. Thus with respect to any such
development application, the local government will be notified and
consulted through the advice agency process under the Integrated Planning
Act 1997.
Clause 51 imposes additional restrictions on the types of conditions that
can be imposed upon development approvals for the airport land, in
addition to the restrictions under the Integrated Planning Act 1997.
Monetary contributions were not required to be paid to local governments
for development on airport land until this Bill, so it is appropriate to impose
restrictions to ensure relevance of the charges to the airports.
Reconfiguration was exempt development for the airport land until this Bill
and would generally only relate to applications for reconfiguration of land
by sub-lease, which would not be an appropriate event for imposing
monetary contributions.
Clause 52 exempts the airport land from local government powers to
acquire land for planning purposes. This arises as a consequence of the
fact that airport land is exempt from local government planning scheme
controls under the Act. This clause also confirms that a person is not
entitled to claim compensation as a result of a change to a land use plan.
There was not previously any provision stating that a person was entitled to
claim compensation in this event during the period that the land was
strategic port land, but this provision is intended to avoid any doubt.
Clause 53 enables planning and development certificates to be obtained for
any premises located within the airport land, similar to the position for land
under planning schemes, but with necessary and appropriate modifications.
Clause 54 provides that if the local government registers any local heritage
places within the airport land, this is of no effect while the land remains
airport land.
Clause 55 enables Ministerial designation of community infrastructure
within the airport land. This will enable designation of any future
infrastructure corridors that may potentially need to cross planning scheme
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Airport Assets (Restructuring and Disposal) Bill 2008
land and airport land, such as electricity or water pipeline corridors. It does
not enable local government designation.
Clause 56 exempts the airport land from master plans by the local
government, consistently with the fact that responsibility for the
administration of the planning regime in respect of the airport land rests
with the planning chief executive rather than local government.
Division 3 Notice of development approval
Clause 57 provides a procedure for the planning chief executive to update
the local government's records with copies of development approvals and
infrastructure agreements relating to the airport land. This will both ensure
that the local government is properly kept informed and also provide a
basis for the planning chief executive to delegate any ongoing
administrative and enforcement powers to the local government, for
example to provide planning and development certificates.
Division 4 Protection of existing uses and rights
Clause 58 protects existing development approvals for the airport land from
any changes to land use plans.
Clause 59 protects existing development approvals for the airport land in
the event that the relevant part of the land ceases to be airport land and a
planning scheme becomes applicable to the land.
Division 5 Other matters
Clause 60 provides for the planning chief executive to delegate relevant
administrative functions to the local government. These functions are
defined to relate to ongoing administration and enforcement of existing
development approvals and the functions delegable to local governments
do not include assessment of development applications.
Clause 61 enables the local government to amend its planning scheme
promptly to reflect consequential changes required because of this chapter,
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Airport Assets (Restructuring and Disposal) Bill 2008
without the need for the amendments to undertake the normal full process
for planning scheme amendments.
Chapter 4 Control of activities at airports
Part 1 Airport Notices
Clause 62 enables an airport lessor to display or publish a notice regarding
particular activities on airport land. The activities relate primarily to the
movement of people, vehicles and goods. It should be noted that this and
the following clauses in Chapter 4 will have no effect until completion day
is reached and the declaration of the entity that is the "airport lessor" under
clause 100 takes place.
Clause 63 provides for the manner in which airport notices must be
displayed or published and requires that copies of the notices must be made
available for inspection or purchase.
Clause 64 permits airport notices to require compliance with a stated
document held by the airport operator. Certain requirements in regard to
providing a summary of the document, and making it available at the office
of the airport operator apply. This provision allows for requirements under
international, State and Commonwealth laws regarding operations at
airports to be implemented.
Clause 65 specifies certain requirements for the contents and display of
airport notices.
Clause 66 is an evidentiary aid in establishing that a person was aware of
information in a notice. If the requirements of the section are adhered to,
the person is taken to be aware of the information in the notice.
Clause 67 provides that it is an offence not to comply with an airport notice
unless the person has a reasonable excuse.
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Airport Assets (Restructuring and Disposal) Bill 2008
Part 2 Authorised Officers
Clause 68 provides that authorised officers may be appointed by an airport
lessor, if the airport lessor is satisfied the person is qualified for
appointment. A regulation may be made about the appointment of
authorised officers.
Clause 69 provides that the authorised officer holds office subject to
conditions as may be imposed in the instrument of appointment, a signed
notice or a regulation.
Clause 70 provides for the issue of an identity card to each authorised
officer by an airport lessor, and the required contents for such a card.
Clause 71 requires that an authorised officer must produce an identity card
or have it clearly visible before exercising a power under the Act.
Clause 72 provides for certain circumstances in which the authorised
officer ceases to hold office.
Clause 73 requires that a person who ceases to be an authorised officer
must return the person's identity card to the airport lessor, within a
specified time unless the person has a reasonable excuse. A breach of this
provision is an offence.
Part 3 Directions
Clause 74 empowers an authorised officer to give verbal directions. The
power is constrained by the need for the direction to be reasonably
necessary to ensure the safety or security of the airport land, its users or the
airport operator's employees or invitees; or to prevent the person's
activities or conduct from affecting the airport's operation. An authorised
officer is specifically authorised to give a verbal direction to leave the
airport or an area of the airport in circumstances where a person is
committing an offence, or is reasonably suspected of having just committed
an offence, or the person's presence at the airport may pose a threat to
safety or security or the person is in an area without lawful justification or
excuse.
Clause 75 provides for a process that may be followed by an authorised
officer, if a person does not comply with a verbal direction of an authorised
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Airport Assets (Restructuring and Disposal) Bill 2008
officer. In these circumstances, the authorised officer can give a written
notice, (with or without a further verbal direction), and with such notice or
further verbal direction, must warn the person that an offence may be
committed if the direction is not complied with within a stated time.
Clause 76 requires that a person comply with a direction given by an
authorised officer. In circumstances where a person does not comply
within a reasonable time, and does not have a reasonable excuse, an offence
may be committed. The most severe penalty of 200 penalty units is
reserved for where the contravention results in a significant delay to airport
operations. Other offences with lesser penalties are also specified.
Part 4 Moving contravening property
Clause 77 empowers an authorised officer to move and deal with
contravening property, which includes aircraft, vehicles and goods parked
or left at the airport in contravention of an airport notice or a direction of an
authorised officer. In certain circumstances the property can be dealt with
under other provisions in the Act as abandoned property.
Part 5 Other powers and offences
Clause 78 provides that an authorised officer has power to require a person
to state the person's name and address, in cases where the person is found
committing an offence, or the authorised officer reasonably suspects the
person as having committed an offence.
Clause 79 permits an authorised officer to require a person who is or may
be liable to pay a charge to the airport operator, to produce for inspection
certain documents. Failure to comply with the requirement without
reasonable excuse, is an offence.
Clause 80 allows an authorised officer to enter and inspect a conveyance
(being an aircraft or a vehicle), or inspect goods on or in the conveyance.
This section only applies where an authorised officer needs to decide
whether a charge is payable and the amount of the charge.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 81 provides that it is an offence for a person to obstruct an
authorised officer in the exercise of a power under this part of the Act.
Clause 82 provides that it is an offence for a person to state anything to an
authorised officer that the person knows is false or misleading in a material
particular. There is an evidentiary aid in this clause in that a complaint for
an offence need only specify that a statement is "false or misleading",
without specifying which of these terms applies in the particular case.
Clause 83 provides that it is an offence for a person to give an authorised
officer a document containing information the person knows is false or
misleading in a material particular. The clause does not apply where a
person provides clarifying information to the authorised officer as stated in
the clause. There is an evidentiary aid in this clause in that a complaint for
an offence need only specify that a statement is "false or misleading",
without specifying which of these terms applies in the particular case.
Clause 84 provides for the offence of pretending to be an authorised officer.
Clause 85 provides for the offence of being disorderly or creating a
disturbance at an airport facility.
Clause 86 provides for the offence of unlawfully interfering with an airport
notice.
Part 6 Disposal of abandoned property
Clause 87 specifies the definitions of the key terms "abandoned property"
and "insufficient value property" for this part.
Clause 88 provides for the process for dealing with particular abandoned
property found at the airport facility. The airport operator must take
reasonable steps to locate the owner of the property, but is empowered to
move the property. The owner's rights in respect of the property are
protected, in that the airport operator must give a located owner written
notice about the property. If however, the airport operator has not located
the owner within 28 days of finding the property, the airport operator must
publish a notice in a newspaper. Property that is of insufficient value or is
perishable and impracticable to be kept is not within the scope of the
section.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 89 provides for the return of abandoned property in circumstances
where a person satisfies the airport operator that the person is the owner of
the property and pays the expenses reasonably incurred, within 28 days
after the notice under the previous clause is given.
Clause 90 authorises the airport operator to sell abandoned property which
is not claimed.
Clause 91 authorises the airport operator to sell perishable abandoned
property which is not able to be kept.
Clause 92 imposes accounting requirements upon the airport operator in
respect of the proceeds from the sale of abandoned property. Any surplus
of the proceeds over the costs of the airport operator must be paid to the
Public Trustee.
Clause 93 authorises the airport operator to dispose of abandoned property
of no value in the way the airport operator considers appropriate.
Part 7 General
Clause 94 authorises the airport lessor which will be a State owned
company to delegate its functions (including powers) under the Act to the
airport lessee or to the airport manager, such as the power to issue airport
notices or to appoint authorised officers. The clause also establishes a
regime for the airport lessor to monitor and regulate the exercise of the
delegated functions by the airport lessee or the airport manager.
Clause 95 authorises the airport lessor (and the airport lessee with the
written approval of the airport lessor) to appoint an airport manager.
Clause 96 provides that the airport lessee is civilly liable for the actions of
an authorised officer, rather than the airport lessor or the authorised officer
acting honestly and without negligence.
Chapter 5 Local government matters
and land tax
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 97 provides for a regulation to state whether and to what extent a
local law applies to airport land.
Clause 98 provides for a local law made after completion day not to apply
for a period of 3 months after it is made. The local law's application to
airport land may be affected by a regulation under clause 97.
Clause 99 provides that for the purposes of the Local Government Act 1993
and the Land Tax Act 1915 that the airport lessee is the owner of the airport
land and not the airport lessor. It should be noted that this clause will have
no effect until completion day.
Chapter 6 General provisions
Part 1 Miscellaneous
Clause 100 provides that the Minister may by a gazette notice declare an
entity to be the lessor of the Cairns International Airport or the Mackay
Airport, and also declare an entity to be the airport lessee for the Cairns
International Airport or the Mackay Airport.
Clause 101 provides that where the lease of the airport land terminates that
the airport lessor may do those things that Chapters 3 requires the airport
lessee to do.
Clause 102 provides that the Minister may delegate the Minister's
functions under the Act, except for the power to issue a transfer notice
under clause 12, to declare entities as airport lessors or airport lessees
under clause 100, and to gazette the first land use plan for each of the
airports after completion day under clause 31.
Clause 103 facilitates the provision of evidence about the state of mind of a
corporation or an individual for proceedings for an offence against the Act.
Clause 104 provides that an offence under the Act is a summary offence.
The clause also makes provision for limitations on commencing
proceedings and contains an evidentiary aid as to statements made in the
complaint as to the complainant's knowledge.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 105 applies provisions of the Criminal Code concerning attempts to
offences under the Act.
Clause 106 provides that penalties are payable to the consolidated fund.
Clause107 provides for the Governor make regulations under the Act.
Part 2 Transitional
Clause 108 provides a definition for Part 2.
Clause 109 permits port notices to continue in effect as airport notices from
completion day for that airport.
Clause 110 permits the appointment of authorised officers for a port
authority for Cairns International Airport or Mackay Airport under the
Transport Infrastructure Act 1994 to continue for a period of three months
after completion day for that airport.
Clause 111 deems property abandoned at Cairns International Airport or
Mackay Airport prior to completion day to be property abandoned under
Chapter 4 Part 6 and requires the relevant port authority to deliver up the
property to the airport operator.
Clause 112 provides that the proceeds of sale of property abandoned at
Cairns International Airport or Mackay Airport prior to the completion day
for the relevant airport to be held by the relevant Ports Corporations
pursuant to section 289M of the Transport Infrastructure Act 1994.
Clause 113 provides that the power of the Governor in Council to amend or
repeal the Integrated Planning Regulation 1998 or the State Penalties
Enforcement Regulation 2000 is not affected by the amendment of those
regulations in this Act.
Clause 114 provides that the Planning Chief Executive will be the
development assessment manager for development applications made to,
but not decided by, the Ports Authorities before the completion date. It also
makes provisions for the assessment process.
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Airport Assets (Restructuring and Disposal) Bill 2008
Chapter 7 Amendment of other
legislation
Part 1 Amendment of Energy Assets
(Restructuring and Disposal) Act
2006
Clause 115 states that Chapter 7 Part 1 of the Airport Assets (Restructuring
and Disposal) Act 2008 amends the Energy Assets (Restructuring and
Disposal) Act 2006.
Clause 116 amends section 52 (Time within which the Minister may act) of
the Airport Assets (Restructuring and Disposal) Act 2008 by providing that
the Minister may perform a function under Part 3 for the 2007 project from
the commencement of the Airport Assets (Restructuring and Disposal) Act
2008 until 30 June 2009. The Minister may issue a project direction under
the Energy Assets (Restructuring and Disposal) Act 2006 in relation to the
2007 project.
Part 2 Amendment of Integrated
Planning Act 1997
Clause 117 provides that Chapter 7 Part 2 of the Airport Assets
(Restructuring and Disposal) Act 2008 amends the Integrated Planning Act
1997.
Clause 118 expands the jurisdiction of the Planning and Environment
Court upon declaration proceedings to include construction of a land use
plan for airport land, consistent with the Court's jurisdiction to construe
planning instruments.
Clause 119 makes consequential changes to Schedule 8 Integrated
Planning Act 1997 as a result of the land ceasing to be strategic port land
and becoming airport land.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 120 provides for the planning chief executive to be the assessment
manager for development completely or partly on airport land. This is on
the basis that if the application is only partly on airport land, the agency
which would have been assessment manager for the balance of the land
becomes the concurrence agency for that part of the land.
Clause 121 inserts consequential amendments to the Dictionary in the
Integrated Planning Act 1997, in particular new definitions of 'airport land',
'core airport infrastructure' and references to 'core airport infrastructure'
within existing relevant definitions.
Part 3 Amendment of Integrated
Planning Regulation 1998
Clause 122 provides that Chapter 7 Part 3 of the Airport Assets
(Restructuring and Disposal) Act 2008 amends the Integrated Planning
Regulation 1998.
Clause 123 provides that assessable development on airport land must be
assessed against the land use plan, whether it is consistent or inconsistent
with the land use plan. This is on the basis that the Integrated Planning Act
1997 provides a procedure for inconsistent development to be approved
notwithstanding the inconsistency if sufficient grounds are demonstrated.
Clause 124 continues the existing jurisdiction of the Transport Minister as
concurrence agency for any development applications inconsistent with a
land use plan.
Part 4 Amendment of Land Tax Act
1915
Clause 125 states that Chapter 7 Part 4 of the Airport Assets (Restructuring
and Disposal) Act 2008 amends the Land Tax Act 1915.
Clause 126 amends section 13(1)(k) (Land exempted from land tax) of the
Land Tax Act 1915 preserves the port authorities' exemption in favour of its
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Airport Assets (Restructuring and Disposal) Bill 2008
wholly owned subsidiaries and after completion date provides an
exemption from land tax for "airport land" within the meaning given by the
Airport Assets (Restructuring and Disposal) Act 2008.
Part 5 Amendment of Local
Government Act 1993
Clause 127 states that Chapter 7 Part 5 of the Airport Assets (Restructuring
and Disposal) Act 2008 amends the Local Government Act 1993.
Clause 128 amends section 957 (What land is rateable) of the Local
Government Act 1993 by including a new category of land that is not
rateable land, namely airport land that is used for a runway, taxiway, apron,
road, vacant land, buffer zone or grass verge. The clause also extends the
application of subsection 957(1)(e)(i) to land held by a wholly owned
subsidiary of a port authority
Part 6 Amendment of State Penalties
Enforcement Regulation 2000
Clause 129 states that Chapter 7 Part 6 amends the State Penalties
Enforcement Regulation 2000.
Clause 130 omits the entry for section 282J, paragraph (c) in schedule 3 of
the Transport Infrastructure Act 1994.
Clause 131 inserts a schedule of offences and penalties into the State
Penalties Enforcement Regulation 2000.
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Airport Assets (Restructuring and Disposal) Bill 2008
Part 7 Amendment of Transport
Infrastructure 1994
Division 1 Preliminary
Clause 132 states that that Chapter 7 Part 7 of the Airport Assets
(Restructuring and Disposal) Act 2008 amends the Transport
Infrastructure Act 1994.
Division 2 Amendment commencing on assent
Clause 133 inserts a new Chapter 8, Part 1A into the Transport
Infrastructure Act 1994.
(a) New section 267AB provides for a port authority to delegate its
functions and powers to a wholly owned subsidiary. This only applies
to Cairns International Airport and Mackay Airport.
(b) New section 267AC provides that from the completion day for either
Cairns International Airport or Mackay Airport that any reference in
the Transport Infrastructure Act 1994 to:
(i) "an airport" does not include either Cairns International Airport
or Mackay Airport airport; and
(ii) "strategic port land" does not include airport land of either Cairns
International Airport or Mackay Airport.
It ought to be noted that the completion day may be different days for
Cairns International Airport and Mackay Airport.
(c) New section 267AD provides that this part of the Act expires on the
commencement date for section 134 of the Act.
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Airport Assets (Restructuring and Disposal) Bill 2008
Division 3 Amendment commencing on
proclamation
Clause 134 amends section 267 (Definitions for Chapter) of the Transport
Infrastructure 1994 by omitting the definition of "airport".
Clause 135 amends section 267A (Meaning of port facilities) of the
Transport Infrastructure Act 1994 by omitting "an airport" as an example
of "port facilities".
Clause 136 amends section 276(3) (Port services functions) of the
Transport Infrastructure Act 1994 by omitting the definition of a "port".
Clause 137 amends section 279(2)(a) and (b) (Port authority may impose a
charge) of the Transport Infrastructure Act 1994 by omitting "or an
aircraft".
Clause 138 omits section 281 (Liability for a charge in relation to an
aircraft) of the Transport Infrastructure Act 1994.
Clause 139 omits section 281A(f) (Liability for a charge in relation to an
aircraft) of the Transport Infrastructure Act 1994 and renumbers section
281A(g) as section 281A(f).
Clause 140 omits section 281B (Liability for a charge in relation to
passengers) of the Transport Infrastructure Act 1994 and inserts new
section 281B (Liability for a charge in relation to passengers) which deletes
references to "aircraft".
Clause 141 amends section 281D (Liability for movement of ships, aircraft,
vehicles, goods or rolling stock) of the Transport Infrastructure Act 1994
by deleting references to "aircraft" in section 281D heading, and sections
281D(1) and (2).
Clause 142 omits section 281E (Liability for damage to port authority's
port facilities) of the Transport Infrastructure Act 1994 and inserts new
section 281E (Liability for damage to port authority's port facilities) of the
Transport Infrastructure Act 1994 which deletes references to "aircraft".
Clause 143 amends section 282(2)(c) (Port Authority may control activities
by port notice) of the Transport Infrastructure Act 1994 by deleting ", or
parking aircraft".
Clause 144 omits section 282B (Port notice -aircraft parking) of the
Transport Infrastructure Act 1994.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 145 amends section 282C (port notice -movement, handling and
storage of goods).
Clause 146 amends section 282H(5) (Port notice may refer to documents
held by port authority) of the Transport Infrastructure Act 1994 by deleting
paragraph (h)(v) and (vi) from the defined word "standard".
Clause 147 omits section 282J penalty paragraph (c) (Offence of not
complying with a port notice) of the Transport Infrastructure Act 1994 and
renumbers section 282J penalty, paragraphs (d) and (e) as paragraphs (c)
and (d).
Clause 148 omits from the examples to section 282Q(1) (Authorised
officer may give directions ) of the Transport Infrastructure Act 1994 "the
parking of an aircraft or".
Clause 149 omits the penalty at section 282S(b)(iii) (Offence of not
complying with a direction) of the Transport Infrastructure Act 1994 and
renumbers section 282S(b)(iv) and (v) as (b)(iii) and (iv).
Clause 150 omits the following from section 282T (Moving contravening
property) of the Transport Infrastructure Act 1994:
(a) "an aircraft" from section 28T(1)(a);
(b) definition of contravening property, "an aircraft" from section
282T(4);
(c) paragraph (b) of the definition of "person in charge" from section
282T(4); and
renumbers the definition of "person in charge", paragraphs (c) and (d) as
(b) and (c).
Clause 151 omits references to an aircraft from section 283B (Inspection of
ships, aircraft, vehicles, rolling stock and goods) of the Transport
Infrastructure Act 1994.
Clause 152 amends the words in section 285(c)(i) (Land use plans) of the
Transport Infrastructure Act 1994.
Clause 153 omits the definition of abandoned property in section 289H
(Definitions for pt 4 B) of the Transport Infrastructure Act 1994.
Clause 154 omits section 291 (2) (Carrying on port activities outside port
limits) of the Transport Infrastructure Act 1994.
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Airport Assets (Restructuring and Disposal) Bill 2008
Clause 155 omits section 292(4) (Offences) of the Transport Infrastructure
Act 1994.
Clause 156 omits the definitions of "airport" and "charterer" and omits ",
and includes an airport for which the authority is responsible" from the
definition of "port" from Schedule 6 (Dictionary) of the Transport
Infrastructure Act 1994
Schedule 1
Part 1 contains real property descriptions for the Cairns Airport Land.
Part 2 contains real property descriptions for the Mackay Airport Land.
Schedule 2
Schedule 2 contains a definition of core airport infrastructure.
Schedule 3
Schedule 3 contains a dictionary which defines particular words used in the
Act.
� State of Queensland 2008
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