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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AIRPORTS (ON-AIRPORT ACTIVITIES ADMINISTRATION) VALIDATION BILL
2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport,
Regional Development and Local Government
the Honourable Anthony Albanese, MP)
AIRPORTS (ON-AIRPORT ACTIVITIES ADMINISTRATION) VALIDATION BILL
2010
OUTLINE
The Airports (Control of On-Airport Activities) Regulations 1997 (the Regulations) regulate
the following matters at specified airports: liquor, commercial trading, vehicle movements,
gambling and smoking.
Certain persons may be appointed as `authorised persons' under various provisions of the
Regulations. These `authorised persons' may perform certain functions and exercise certain
powers including issuing an infringement notice under Part 7 of the Regulations to a person
who they reasonably believe committed an infringement notice offence under a provision of
the Regulations that creates the offence.
Following a recent examination of the appointment of authorised persons, it became apparent
that the appointment of authorised persons at a number of the specified airports has not been
kept up to date since 2004. In some cases, people who do not fall within any of the categories
of persons who may be appointed under the relevant provisions of the Regulations have been
purportedly appointed as `authorised persons'. There were other cases where, as the result of
an administrative oversight, no appointment at all was made, although it was intended for
these appointments to be made. The consequence of this is that actions taken by such persons
purportedly pursuant to the Regulations, including issuing infringement notices, as far back as
2004, may be ineffective or invalid.
The Airports (On-Airport Activities Administration) Validation Bill 2010 (the Bill) ensures
the effectiveness and validity of all actions performed and powers exercised under the
Regulations, including the issue of infringement notices, before the commencement of this
legislation to the extent that they were performed or exercised by persons, not appointed, or
not validly appointed, as authorised persons under any of the provisions of the Regulations.
The Bill gives these actions the same effect as if the person who performed these actions had
been, and had always been, properly appointed as an authorised person. In particular, the Bill
ensures that persons who have paid the administrative penalty specified in an infringement
notice issued by such a person for an alleged offence continue to enjoy the immunity from
prosecution and protection from liability for the alleged offence that a payment in respect of
an infringement notice issued by a properly authorised person confers.
The Bill, however, does not affect rights or liabilities arising between parties to proceedings
heard and finally determined by a court on or before the commencement of this clause, to the
extent that those rights or liabilities arose from, or were affected by, an invalid or ineffective
infringement notice.
FINANCIAL IMPACT STATEMENT
There will be no impact on Commonwealth expenditure; therefore, a financial impact
statement is not required.
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AIRPORTS (ON-AIRPORT ACTIVITIES ADMINISTRATION) VALIDATION BILL
2010
NOTES ON CLAUSES
Clause 1: Short Title
1. This provision specifies the short title of the Act.
Clause 2: Commencement
2. Clause 2 specifies the commencement of the Act (that is, the day this Act receives the
Royal Assent).
Clause 3: Validation of issue of infringement notices
3. Clause 3 ensures the legal effectiveness at all times of a notice purportedly issued, prior to
the day on which this proposed clause would commence, as an infringement notice for an
infringement notice offence under the Regulations to the extent that, apart from this clause,
the notice would not be valid or effective as an infringement notice because either:
· the notice was issued by a person who was not appointed, or was not validly
appointed, as an authorised person for the purpose of the provision of the Regulations
that creates the offence; or
· a thing did not, or could not, happen as required by the Regulations because the
person was not appointed, or was not validly appointed, as an authorised person. For
example, subregulation 149(2) provides that a copy of an infringement notice served
on the person to whom the notice is issued must show the distinguishing number
allotted to, or the signature and job classification of, the authorised person who issued
the notice. A person who was never appointed or not validly appointed as an
authorised person would not have been able to sign such a notice as an `authorised
person'.
4. Subclause (2) makes it clear that subject to subclause (3) the notice is as valid and
effective, and is taken always to have been as valid and effective as an infringement notice,
as it would have been if the person who issued the notice was validly appointed as an
authorised person for the purpose of the provision concerned, and the thing did happen.
5. Clause 3 ensures that everyone is and was in the same position that he or she would be in,
or would have been in, had the notices been issued by a properly appointed person.
6. Accordingly, where a person has paid the amount specified in such a notice as the
administrative penalty for the alleged offence, there will be no doubt that that person will
continue to enjoy the immunity from prosecution for the offence for which the purported
notice was issued, notwithstanding the flaw relating to the appointment of the issuer of that
notice.
7. However, this clause does not affect rights or liabilities arising between parties to
proceedings heard and finally determined by a court on or before the commencement of
this clause, to the extent that those rights or liabilities arose from, or were affected by, a
notice referred to in subclause (1).
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Clause 4: Validation of other things done
8. In addition to having power to issue infringement notices, authorised persons may perform
certain actions and exercise certain powers under certain provisions of the Regulations.
For example, under regulation 110 of the Regulations, an authorised person for an airport
may direct a driver of a vehicle used at the airport in contravention of a parking control
provision to move the vehicle. Regulation 111 gives an authorised person the power to
move an abandoned vehicle if the vehicle is causing interference with the normal flow of
traffic at the airport or with the operation of the airport. If a vehicle has been moved under
regulation 111 and the driver or owner of the vehicle is not found, or if found has not
recovered the vehicle within three months after the day the vehicle was moved, the airport-
operator company may sell the vehicle after giving the appropriate notice.
9. Clause 4 ensures that the purported performance of any function or the purported exercise
of any power of an authorised person under any of these other provisions of the
Regulations is valid and effective. Clause 4 also ensures that to the extent that the doing of
the action or the exercise of the power would, apart from this clause, be invalid or
ineffective because the person was not appointed, or was not validly appointed, as an
authorised person for the purpose of the provision, that action or exercise of power is
effective and valid.
10. Subclause (2) provides that, subject to subclause (3), the thing done is as valid and
effective, and is taken always to have been as valid and effective, as it would have been if
the person who did it was validly appointed as an authorised person for the purpose of the
provision concerned.
11. Subclause (3) provides that proposed clause 4 does not affect rights or liabilities arising
between parties to proceedings heard and finally determined by a court on or before the
commencement of this clause, to the extent that those rights or liabilities arose from, or
were affected by, a thing done by a person as described in subclause (1).
Clause 5: Extended operation of clauses 3 and 4
12. This clause provides that proposed clauses 3 and 4 apply in relation to a place that, during
a period that ended before the commencement of proposed clause 5, was a Commonwealth
place (as defined in the Airports Act 1996), in the same way as they apply in relation to
other places.
13. An example of such a place is the land which formerly constituted Hoxton Park Airport.
This land was a Commonwealth place until it was sold by the Commonwealth in 2008.
Various provisions of the Regulations applied in relation to Hoxton Park Airport, while it
was a Commonwealth leased airport, prior to its sale. By virtue of proposed clause 5,
proposed clauses 3 and 4 have the same effect in relation to actions taken purportedly
under the Regulations in respect of Hoxton Park Airport as they have in relation to other
Commonwealth leased airports to which the Regulations apply.
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Clause 6: Compensation for acquisition of property
14. Subclause (1) provides that if the operation of this Act would result in an acquisition of
property from a person otherwise than on just terms, the Commonwealth is liable to pay a
reasonable amount of compensation to the person.
15. Subclause (2) provides that if the Commonwealth and the person do not agree on the
amount of the compensation, the person may institute proceedings in a court of competent
jurisdiction for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.
16. Subclause (3) provides that in this clause `acquisition of property' has the same meaning as
in paragraph 51(xxxi) of the Constitution and that `just terms' has the same meaning as in
paragraph 51(xxxi) of the Constitution.
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