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AFR 15/11/23
Kylar Loussikian

Infrastructure Department officials are considering cancelling special allowances given to major cargo operators to fly outside the Sydney Airport curfew after Scott Morrison wrote to Labor demanding it be scrapped.

In one of the few domestic policy interventions by the former prime minister since the Coalition lost the last federal election, Mr Morrison said special dispensation for Qantas, Team Global Express and another carrier to fly freight out of Sydney Airport was likely to be against the law. The special rights were first granted to the operators – Australia Post has partnered with Qantas for airfreight – by the Coalition during the COVID-19 pandemic as the number of passenger flights fell. Airfreight is most often transported on passenger flights, and the lack of travel meant new arrangements were required to fly cargo earlier in the day.

Despite the end of the pandemic, the government agreed to extend the special dispensation until Western Sydney Airport opens in 2026. It is expected that the new airport will not have a curfew.

In his letter to Infrastructure Minister Catherine King, Mr Morrison wrote that the residents of Kurnell, in his electorate of Cook in Sydney’s south, were “unfairly denied the protections” of the Sydney Airport curfew.

The curfew prevents flights after 11pm and before 6pm. There have been between 10 and 18 flights every night under the exemption.

“No doubt a business case could be mounted for the abolition of the curfew in its entirety, but that would not be consistent with the interests of residents who live adjacent to the airport,” his letter reads, adding that legal advice sought from Mark Robinson SC concluded that “the dispensations contravene relevant provisions of all three legislative instruments and subverts the rightful and lawful role of parliament”.

In response, the Infrastructure Department has launched a review of the special allowance and have flagged to the three carriers that there is a “realistic” chance it will be scrapped, two sources involved in discussions who were not permitted to speak publicly said.

Ms King declined to comment, citing the review. Department officials had allowed the pre-curfew flights to continue because demand for freight had increased dramatically during the pandemic, and because larger aircraft which had operated domestically were now being used on international routes, reducing the capacity to transport freight around the country.

Mr Morrison told The Australian Financial Review that he had not sought to publicise his intervention. But he said it was “very clear you can’t do a workaround to the curfew”. “It’s not transparent or proper, [if the government wants to change the rules] they should bring in a change to the law,” he said.

A Sydney Airport spokesman said the argument over the exemption “just highlighted how out of date the current rules are”.

“Whether the dispensation stays or goes, the fact is that the existing legislation mandates using older, noisier freight aircraft during curfew,” he said, a reference to DC-9s and BAe-146s which have long been able to travel in and out of Sydney Airport earlier than 6am under the rules. Neither aircraft is commonly used, having been replaced by quieter planes.

Since February, BAe-146s have no longer been permitted to fly to Bankstown Airport, creating more demand for freight to arrive at Sydney Airport.

“We would like to see a commonsense modernisation of the rules to permit quieter, next-generation aircraft,” the Sydney Airport spokesman said.

However, in his letter, Mr Morrison said the timetable for Western Sydney Airport’s opening had been “established prior to the pandemic and any new business generated temporarily under dispensation agreements cannot be used as grounds to continue the dispensation, when the exceptional circumstances that enabled the dispensation are no longer present”.

“The additional overnight flying has allowed air freight operators to meet the structural increase in demand for e-commerce as well as help with the timely movement of freight into regional parts of the country,” a spokesman for Qantas Freight said on Tuesday.

Australia Post and Team Global Express declined to comment, or detail how much freight they carried on flights which faced cancellation.

Sydney Airport, which is now owned by IFM Investors and New York-based Global Infrastructure Partners after being acquired in a $23.6 billion takeover last year, has long argued that the rules around the number of flights that can use the airport daily should change. Along with a curfew, there are other restrictions including one on the number of flights per hour – 80.

The Infrastructure Department has indicated that it intends to decide on whether to revoke the special dispensation by January 31.

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[L]egal advice sought from Mark Robinson SC concluded that “the dispensations contravene relevant provisions of all three legislative instruments and subverts the rightful and lawful role of parliament”.

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20 Dispensations in exceptional circumstances

(1) The Minister may grant a dispensation authorising an aircraft to take off from, or land at, Sydney Airport in circumstances that would otherwise contravene section 7, 10 or 11 if the Minister is satisfied that there are exceptional circumstances justifying the take‑ off or landing.

(2) A dispensation may be granted subject to conditions including, for example, conditions relating to when the take‑off or landing must occur and the runway to be used.

(3) In granting dispensations, the Minister must have regard to guidelines made under subsection (5).

(4) A dispensation need not be in writing, but a written record of each dispensation and the reasons for granting it must be made and must be tabled in each House of the Parliament within 5 sitting days of that House after the dispensation is granted.

(5) The Minister must, by legislative instrument, make guidelines about the granting of dispensations under this section including, in particular:

(a) what constitutes exceptional circumstances; and

(b) the conditions to which dispensations should be subject.

(7) The consultation procedures set out in the Schedule apply if the Minister proposes to make guidelines under subsection (5).

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4.3 GROUP OF AIRCRAFT THAT CAN OPERATE.
Only the following aircraft may take off or land at Sydney Aerodrome between 2300 and 0600 HR local time.
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(b) The following types of aircraft with a MTOW of 34,000KG or less:...

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