The Aviation Green and White Papers
The Aviation Green Paper is a wide-ranging consultation paper through which the Commonwealth Government is seeking feedback on issues affecting the aviation industry now and into the future. Responses to the Green Paper will inform the drafting of the Aviation White Paper which will set out the Government’s long-term policies to 2050.
Airports and the Green Paper
The Green Paper contains a number of sections of significance to Australian aerodrome operators, with the key propositions summarised below.
Triggers for major development plans
The Government acknowledges major flaws with the existing Major Development Plan (MDP) process, including the $25 million costs trigger (which has not kept pace with inflation), long approval lead times and the fact that MDPs are often required for developments with minimal impact on air operations or the surrounding community.
The Green Paper consultation process provides industry with an opportunity to explain to Government the issues faced by airports in relation to major developments and to suggest improvements that would reduce red tape and costs and streamline approvals.
Slots at Sydney Airport
The Green Paper discusses capacity constraints at Sydney Airport during peak times and the contentious issue of “slot hoarding”.
In summary, an airline is entitled to retain a slot if it can demonstrate that it operated the relevant flight at least 80% of the time in the previous season. ‘Slot hoarding’ refers to a practice where an airline obtains more slots than it needs, then cancels surplus services and consolidates passengers onto remaining flights. This is said to allow the airline to retain its slots by spreading the cancellations (so that no particular slot breaches the 80% rule) and by so doing prevent other airlines from using the affected slots to provide competing flights.
The practice, which is denied by the major airlines, has been recently alleged by industry stakeholders and the ACCC.
The Green Paper will be a disappointment to anyone hoping for regulatory reform in this area. The paper simply refers to the 2021 Harris Review released more than two and a half years ago and states that the Government is still considering its position. The Harris Review highlighted many issues with the scheme, including with respect to its compliance and enforcement procedures which lag behind the global standard and make it difficult to accurately determine compliance in time for the next scheduling season.
Notwithstanding the current lack of Government action, there appears to be public and political momentum to make change in this space and the Green Paper foreshadows impending Government announcements. Industry participants who are concerned about slot allocation at Sydney Airport should use the Green Paper process to make submissions, including as to the recommendations made in the Harris Review.
No new curfews or movement caps
The Green Paper quashes any suggestion of new curfews or movement caps in Australian airports: “the Australian Government is not considering imposing any additional constraints on airports such as curfews or movement caps.” This will be welcome news to industry given that the Greens recently announced a Bill seeking to introduce a curfew and movement caps at Brisbane Airport.
Despite the Government’s clear position, industry participants may still wish to submit a response to the Green Paper outlining the adverse impact such measures would have, including on jobs, the industry and connectivity.
Balancing aviation and non-aviation uses
The Green Paper discusses the ongoing balance that must be struck between the core aeronautical use of an airport (and in particular, general aviation) and non-aviation use (such as business parks and industrial developments) which provide an import income stream which in turn supports aeronautical activities. It also considers how the Department determines whether to approve or refuse a draft Master Plan based on its consideration of this issue.
Airport operators and users should make submissions about how the balance between aeronautical and non-aeronautical uses can be best maintained to benefit the broader industry.
Economic regulation of airports
The current economic regulation of airports consists of ACCC monitoring of prices, financial performance and quality of service at Sydney, Melbourne, Brisbane and Perth airports, as well as periodic reviews by the Productivity Commission.
The Green Paper does not foreshadow any major changes to the current ‘light touch’ regime. Instead, it calls for submissions on:
- What aviation market data should the Government collect and analyse?
- What measures should be taken to ensure airports operate efficiently and deliver optimal consumer outcomes?
- Are the current non-binding Aeronautical Pricing Principles (APPs) fit-for-purpose? How could they be improved, and should they be mandatory?
Many of these issues were canvassed in the most recent Productivity Commission review in 2019. However, airport operators and airlines who negotiate terminal and airside pricing agreements will likely continue to have strong views about these issues and should make a submission to ensure their concerns are considered as part of the long-term policy direction.
The Green Paper identifies noise as a key Government focus as aircraft movements are estimated to increase from their current level of 3 million per annum to between 8 million and 10 million per annum by 2050.
In the Green Paper, the Government encourages airports to mitigate the impact of noise by engaging with communities and providing easy-to-understand information. Most airports already undertake such measures (with Federal leased airports required to include noise forecasts and community consultation plans in each Master Plan and Major Development Plan). It therefore appears likely that the Government will be seeking to incrementally improve these existing processes rather than introducing wholesale change.
The Green Paper also flags the Government’s intention to develop a Community Engagement Standard to guide consultation on airspace designs and provides some detail about its proposed content.
Submissions are sought on:
- Improvements that could be made to the Noise Complaints Information Service;
- Improvements to the ANEF and other noise metrics that could be used;
- How to better communicate aircraft noise issues to the public, property buyers, local government, residents, town planners and developers;
- How to manage noise from unmanned systems (drones); and
- Whether community consultation groups work, and how they can be improved.
The Government is currently in the process of remaking the Airports (Environment Protection) Regulations 1997, which are due to sunset in April 2025 and will release the first package of laws for public consultation later this year.
The Green Paper seeks input on how the Government can improve regulation in this space that will both protect the environment and preserve the use of the airport for aviation.
Climate impacts on regional and remote aerodromes
The Green Paper asks participants to consider the specific challenges faced by regional and remote aviation and airports posed by climate change and to make submissions on how local governments and aerodrome operators can or should consider climate resilience when managing their aviation assets.
HWL Ebsworth Lawyers strongly encourages all participants in the aviation industry to make a submission to the Green Paper and have a say in developing Australia’s aviation policy settings and are happy to assist in drafting a response.
Submissions are open to anyone until 30 November 2023.
The Green Paper is available in full here.
For further insight and legal support, please contact Jayne Heatley.
This article was written by Matthew Brooks, Partner, Jayne Heatley, Partner and Richard Davis, Consultant.