John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

I rise to express my deep concern about some important aspects of the Airports Amendment Bill 2006, which affect directly or indirectly the constituents of Lowe and others who are affected by Sydney basin airports, such as Bankstown Airport. The electorate of Lowe is located directly under the northern flight paths of Sydney airport. Residents of Lowe have long suffered from the reckless and irresponsible policies of the Howard government and its surrender to the interests of Macquarie Bank and its affiliates in the elimination of pricing surveillance, thus causing massive rises in airline landing fees and retail fees, including parking.

Prices for aviation landing fees have forced regional airlines out of Sydney airport and into Bankstown Airport. Prices for landing fees have risen hundreds of times higher than the consumer price index, despite the categorical promises made in 2001 by the former Deputy Prime Minister and Minister for Transport and Regional Services that this would not occur. In particular, prior to the privatisation of Sydney airport, airports were subject to price regulation in the form of price notification and price monitoring by the Australian Competition and Consumer Commission. This price regulation included the regulation of prices notification for aeronautical services and monitoring of aeronautical related services under the Prices Surveillance Act.

Prior to the exploration of the price caps for Sydney airport, in December 2000 the Commonwealth government asked the Productivity Commission to inquire as to whether price regulation was required at privatised airports, and Sydney airport was one of them. The Productivity Commission opted for a light-handed approach in its recommendations and recommended that price caps and prices notification arrangements at Sydney airport should be replaced by a mandatory price monitoring arrangement for a probationary five-year period. The then minister for transport announced on 13 May 2002 that the government had accepted the Productivity Commission’s recommendation that Sydney airport be subject to price monitoring for five years, effective from 1 July 2002.

The minister further announced on 13 May 2002 that the new arrangements would not impact on regional airline operations into and out of Sydney and that regional airlines would continue to be guaranteed reasonable access to Sydney airport under the slot management system and with a prohibition on any increases in aeronautical charges that exceeded the CPI. I note from the ACCC media statement titled ‘ACCC decision on Sydney airport prices of 11 May 2001’ that a decision, too, was made to increase Sydney Airport Corporation Ltd aeronautical revenue in 2000-01 from $93 million to around $183 million—an increase of $90 million or 97 per cent. This compares with the increase sought by SACL of 130 per cent. Since privatisation, aeronautical revenue at Sydney airport has increased to a far higher rate than CPI.

This point is most relevant to today’s bill. The Airports Amendment Bill 2006 is but one more item in a litany of acts of betrayal against the people of Sydney in order to pander to the vested interests of Macquarie Bank and its affiliates. Macquarie Bank is not content to make normal operating profits. It must now purchase Qantas itself and thus force the people of Sydney to use Macquarie Bank motorways, Macquarie Bank taxi services, Macquarie Bank airports and now Macquarie Bank airlines.

One underhand purpose of the Airports Amendment Bill 2006 is found in item 21. Item 21 of the bill allows regulations to be made that would permit airlines to own more than five per cent of an airport-operator company which owns or manages a non-core regulated airport, such as Bankstown Airport. It is more than fortuitous that this bill would enable an airline to own more than five per cent of a non-core airport such as Bankstown Airport. This is so in light of the much publicised moves by Macquarie Bank and its affiliates to purchase Qantas. The duplicity could not be more pronounced or transparent.

I place on the record my total opposition to Bankstown Airport becoming one of the non-core regulated airports subject to the lifting of the five per cent airline ownership cap. Any consortium with an interest in swallowing up Bankstown Airport would do well to keep the corks in the Bollinger on hold. Should regulations be proposed to allow Bankstown Airport to become exempt from the five per cent airline ownership prohibition, I can assure members that I will pursue this matter most vigorously.

It is further noted that another purpose of the bill is to ‘improve the pool of available investment funds’ for relevant airports. To do so, it appears that this bill supplements the existing section 32 by explicitly incorporating into that section the interpretation found in Westfield Management Ltd v Brisbane Airport Corporation Ltd [2005] FCA 32. In essence, non-aeronautical development in a lease agreement between an airport operator and the Commonwealth will be permissible. Item 16 further provides that such businesses must also be consistent with the master plan.

I note other provisions of this bill, particularly the slashing of time proposed in these provisions in which the public interest stakeholders have to respond to amendments to airport master plans, major and minor development plans and environment strategies found in parts 5 and 6 of the Airports Act. I am appalled at the attempt by the government to justify the savaging and slashing of community consultation periods and public comment periods. Again, quoting from the Bills Digest, I note:

... the Bill also reduces the time allowed for public comment on drafts of Master Plans, Major Development Plans and Environment Strategies. It is currently 90 calendar days and this is being reduced to 45 business days. Disregarding any allowance for any public holidays, this represents a reduction from approximately 13 weeks to 9 weeks for comment.

And further:

... the public comment period for (so-called) minor variations of Master Plans, Major Development Plans and Environment Strategies has been reduced from 30 days to 15 days ...

Mr Deputy Speaker, you are doubtless aware that there has been a revolt about that. How can the community and the public interest possibly be served with the cynical, savage cuts in consultation that are attempted in the original bill? Airport master plans, major development plans and environment strategies are instruments of the utmost complexity. These instruments contain reams of technical data, statistics and complex calculations. We know from experience that an airport lessee company can take over three years of research and preparation for a master plan, major development plan and environment strategy. So I ask the Minister for Transport and Regional Services: how is a member of the public, a local council or a state government supposed to be able to respond adequately within 45 days to a plan that may take upwards of three years to prepare? To demand that members of the public do so is to deny them natural justice.

It is sophistry to suggest that a 45-day consultation period will bring airport consultation times in line with other jurisdictions such as local government. What a load of humbug that is. That is what the government were proposing. One can hardly compare a development application for a two-storey home at the local government level with the preparation of a highly technical master plan or major development plan for Sydney airport. The impact of a two-storey home on the amenity of any neighbourhood is nothing like the impact of new flight paths or a 48,000 square metre shopping centre at Sydney airport. To compare the two is preposterous and dishonest. The only validity of such bastardy and cutbacks in time can be to delimit and effectively annihilate the public interest so that the only researched submission to these plans and strategies is the proponent itself.

Ordinary members of the public, like the people I represent in Sydney’s inner west, should have months, not days, to investigate the many complex issues that will arise, such as noise and traffic, not to mention the potential disastrous impacts on some of the property values in the area. Members of the public, local councils and state governments should have time to obtain detailed expert analysis on technical matters raised in master plans and major development plans. They should have time to challenge the assertions and obfuscation of airport owners such as Sydney Airport Corporation Ltd. Why should the only substantive submission to an airport master plan or major development plan be from the applicant itself? Why should these mini-republics in major cities have carte blanche to do what they want with even greater ease?

Without amendment, the government’s changes will impede and do violence to an already flawed maladministration of Commonwealth law. I am particularly galled, as is the rest of the community, that Airports Act laws could be amended with such reckless indifference towards the public interest. That is what the government were intending. Indeed, as I noted from the Bills Digest, which cites the contribution to the debate by the member for Dawson, the purpose of this bill is to ‘improve the available pool of investment funds’. This so-called ‘improvement’ really translates into the same, tired old anarcho-capitalist mentality of the government in removing all environmental, airport control and pricing regulatory regimes so as to turn all Sydney Basin airports into a money-raking, gouging exercise.

This bill yet again further lowers the bar for the chosen few, such as Macquarie Bank and Colonial First State Bank, who own Bankstown Airport Corporation. These banks are allowed to purchase airport leases and airport corporations whilst enjoying windfall after windfall as this government makes amendment after amendment to regulatory laws so as to accommodate these corporations at the expense of my constituents. I do not call these ‘profits’, because these moneys are being obtained at the expense of both the environment and aviation safety.

I turn now to the two social costs from this bill, namely the costs from this bill to the people of Sydney on the environment as well as to the fundamental issue of aviation safety. In environmental terms, this bill continues to persist in the legal fiction that core and non-core airports are operated upon land which is not the subject of state planning, pollution and other environmental laws. This is a major point of controversy for our state government parliamentary colleagues, who support airports such as Sydney and Bankstown airports. I commend my parliamentary colleagues in the New South Wales parliament who have fought vigorously and consistently on the manifest injustice to the resident ratepayers of New South Wales, who must suffer the ignominy of seeing the airport lessee companies exempted from state environmental laws.

I am aware of the litigation that has occurred in the cases of Westfield Management Ltd v Brisbane Airport Corporation Ltd [2005] FCA 32 and Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2005] FCA 34. Item 16 of this bill attempts to overcome the limitations of the existing section 32, which is apparent in the fact that the Federal Court in these cases considered the non-aeronautical development to be not inconsistent with the provisions of section 32. However, this is only part of the story. It is in fine style that this government would wait until commercial imperatives in direct harm occur before being shunted into action. I speak for the broader application of state environmental laws being locked out of application in development generally.

I point out what I consider to be the core constitutional issue of the operation of the Airports Act 1996. I specifically refer to section 112 of the act titled ‘Exclusion of State/Territory Laws’. Members of this House should note that section 112 refers exclusively to part 5 of the Airports Act, dealing only with master plans and major and minor development plans and building activities. Section 112 states:

(1)

It is the intention of the Parliament that this Part is to apply to the exclusion of a law of a State or Territory.

(2)

In particular, it is the intention of the Parliament that this Part is to apply to the exclusion of a law of a State or Territory relating to:

(a)

land use planning; or

(b)

the regulation of building activities (within the meaning of Division 5).

I turn to clause 122 of the bill, which prescribes a purpose statement of a final environment strategy. I note that one of these purpose statements in the bill is to:

… ensure that all operations at the airport are undertaken in accordance with relevant environmental legislation and standards …

So what does ‘relevant environmental legislation and standards’ mean? To answer this question, it is necessary to refer to the provision found in section 136 under part 6 of the act titled ‘Environmental management’. It is significant to note the distinctly different, indeed opposite, intention of section 136 of the act to that found in section 112:

(1)

Subject to this section, it is the intention of the Parliament that this Division is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Division.

(2)

The regulations may declare that a specified law of a State or Territory has no effect in relation to a specified airport to the extent to which the law makes provision for and in relation to a matter referred to [certain provisions] ...

I quote sections 112 and 136 to show that the Airports Act 1996 contemplates diametrically opposite legislator’s intentions, depending on whether we are talking about, on the one hand, airport land use, planning and building controls in instruments such as master plans and major development plans or, on the other hand, environmental management found in environmental strategies.

For airport land use instruments, Commonwealth law is to apply to the exclusion of state law, whereas with environmental management, part 6 is not to apply to the exclusion of state laws, including environmental laws. What are we to make of these provisions? A plain reading of section 136 would mean that environmental management is subject to state environmental laws of New South Wales. If so, the issue is whether the minister will make laws consistent with New South Wales environmental law, including its planning and development and pollution laws, concerning the environmental management of airports.

I ask this parliament a question that I have asked on several occasions: has the Minister for Transport and Regional Services thought through the legislation he puts to this House? It is clear to me that this bill, and in particular item 122, contemplates that the purpose of airport environmental strategies is to ensure that airport operations are undertaken in conformance with environmental legislation, including New South Wales state environmental law pursuant to section 136.

This is what the significant grievance throughout the broader community is about—that is, whether state and territory laws apply to their relevant airport lands. Why should Macquarie Bank at Sydney airport or Colonial First State at Bankstown Airport be permitted to develop airport lands as retail outlets, shopping centres and the like, apparently exempt—so we are told—from state planning, environmental and pollution laws, whilst other corporate and Australian families must be subjected to those stringent New South Wales planning, environmental and pollution laws?

I note that the New South Wales legislature has a comprehensive and well-formulated environmental and planning regime developed over decades of refinement. New South Wales planning and development legislation, pollution regimes and other environmental laws are excellent law, administered by professional agencies such as the New South Wales Environment Protection Authority, the New South Wales Department of Planning, the New South Wales National Parks and Wildlife Service and the New South Wales Department of Local Government. To deny such agencies their natural jurisdictional powers is to do grave violence to the administration of laws. To do so by the stroke of a pen in a provision such as section 112 is equally galling.

I further put to this House today that it is time to revisit this legal fiction that state and territory law has no application on airport lands. I share in the justified outcry from those public interest stakeholders, including, critically, the New South Wales state government and its statutory agencies who are routinely ignored by this arrogant government. I refer to the outrageous example most correctly cited in the Bills Digest concerning the conflict of laws with respect to Canberra airport, which is subject to the Australian Capital Territory (Planning and Land Management) Act 1988, which is a piece of Commonwealth legislation. The effect of clause 112A is that the Canberra airport master plan will override the National Capital Plan. I therefore raise the question as to the applicability of those provisions of the Commonwealth Places (Application of Laws) Act 1970, in particular section 4 of that act with regard to whether state environmental law generically applies to Commonwealth land, including airport land. I further question this point in light of the express provisions of sections 112 and 136. There is the additional question of whether these two provisions, in light of the amendments before us here today, impede state and territory laws and whether this impediment, if any, creates an inconsistency of laws, thus triggering the constitutional law found in section 109 of the Commonwealth Constitution. Section 109 states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

These are all questions that require revisiting. We cannot sit as a parliament making such amendments here today, with the presumption that these land developments in Sydney Basin airports such as Sydney and Bankstown operate with immunity from state planning, pollution and environmental laws. I challenge that presumption here today and seek that this parliament revisit this long mantra of presumption.

I finally move to the issue first flagged by the June 2000 Report on the Inquiry into the Development of the Brisbane Airport Corporation Master Plan by the Senate Standing Committee on Rural and Regional Affairs and Transport. This report made eight recommendations, one of which is very pertinent to this bill today:

1.24. That the Airports Act 1996 be amended to specify the relationship a major development plan has to a master plan.

Item 75 of this bill does provide a purpose statement of major development plans. Clause 91(1)(c)(ca) and existing paragraph 91(1)(d) provide ‘whether or not the development is consistent’ with the lease and master plan. I note from the Bills Digest that this wording is at best ambiguous and at worst does not fulfil the Brisbane Airport inquiry’s recommendation 1.24. It is clear that after six years this government is still not prepared to define precisely the relationship between major development plans and the airport master plan; thus, it is still possible for a major development plan to be inconsistent with the master plan. This I consider to be a major flaw of this bill.

I ask the Senate to consider carefully and accept amendments to this bill proposed by the opposition. All residents affected by airports, particularly those that have become mini republics, deserve better than the carte blanche being offered by this bill to those fiefdoms. This is particularly true of Sydney airport and Macquarie Bank.

I have long argued that, as an airport, Sydney (Kingsford Smith) Airport operates very well as a shopping centre and car park. Since I last made that statement it is clear that the Howard government has allowed Sydney airport to expand beyond its ecologically sustainable limits. Development does not come without its fair share of problems, many of which are created as a result of the minister’s apparent disdain for proper planning and approval processes and for the people of Lowe, whom I represent.

Labor’s amendments will ensure that there are no reductions in consultation or approval times. This is particularly important in light of the distrust many have towards the Howard government in relation to this issue that is so critical to my constituents in Lowe and the people of the inner west of Sydney.

The government have form on this. They have not properly implemented the long-term operating plan. We are supposed to be getting only 17 per cent of movements to the north of Sydney airport and we have been getting up to double that over my electorate. Moreover, the government have abandoned any idea that Sydney will ever have a second airport to take pressure off Sydney airport. (Time expired)

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