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Australian Government airSerVICeS Department ofDefence

Memorandum of Understanding

between

the Department of Defence

and

Airservices Australia

and

the Aircraft Noise Ombudsman

for

An Independent Noise Complaint and Review Mechanism for Australian Defence Force Flying Operations in Australia

Signed as authorised Signed by the Aircraft Noise ~n1Csentative for Airservices Ombudsman

Aus ali

Paul Thomas Lucas Ronald Ian Brent Chair of the Board Aircraft Noise Ombudsman Environment Committee of Airservices Australia

Datedt 01 z- 1y- Dated (0 I2 J4shy

DOCUMENT INFORMATION

Defence

Chief of Air Force R1-6-C001 PO Box 7902 Canberra BC ACT 2610 Ph (02) 6265 5474 geoffreybrowndefencegovau

Owners Airservices Austraiia

Airservices Australia Alan Woods Building 25 Constitution Avenue Ganberra ACT 2600 Ph (02) 6268 4111 leahkennedyairservicesaustr aliacom

Aircraft Noise Ombudsman

Aircraft Noise Ombudsman GPO Box 1985 Canberra City ACT 2601 Ph 1800 266 040 anoanogovau

2

Purpose

1 The purpose of this Memorandum of Understanding (MoU) is to detail the relationship between the Department of Defence (Defence) Airservices Australia (Airservices) and the Aircraft Noise Ombudsman (AND) in relation to Defences utilisation of the ANO as an independent noise complaint mechanism for Australian Defence Force (ADF) flying operations in Australia

Background

The ANO

2 The Board of Airservices established the position of the ANO in order to provide an independent review mechanism of Airservices handling of civilian aircraft noise complaints provision of information about aircraft noise and consultation on matters related to aircraft noise The ANO may also make recommendations to the Board of Airservices for improvements relating to these matters

3 The ANO is independent and impartial The ANO reports directly to the Board of Airservices and sits outside of Airservices executive or management structures The person holding the position of the ANO is not an employee of Airservices but rather reports directly to the Board of Airservices under the terms of a contract and a Charter This MoU cannot and is not intended to limit the powers of the ANO

Super Hornet flying operations at RAAF Base Amberley OLD

4 On 23 March 2010 the (then) Minister for Environment Protection Heritage and the Arts granted Defence approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to conduct Super Hornet flying operations at and around RAAF Base Amberley subject to a number of conditions (Ministerial Approval) Condition 3 of the Ministerial Approval requires Defence to establish a qualified independent noise complaint mechanism similar in role and function to the ANO An extract of the 23 March 2010 Ministerial Approval is at Attachment 1

An independent noise complaint mechanism for ADF flying operations in Australia

5 In order to comply with the conditions of the Ministerial Approval and in light of Defences broader requirement for a dedicated independent noise complaint mechanism for all ADF flying operations Defence has asked the ANO to act as an independent noise complaint mechanism for all ADF flying operations in Australia including Super Hornet flying operations at RAAF Base Amberley

6 Drawing on its considerable expertise in handling aircraft noise complaints the ANO has agreed to provide an independent noise complaint and review mechanism for ADF flying operations in Australia The Board of Airservices supports the ANO accepting this role

3

Provision of services by the ANO to Defence

7 The ANO will perform the following roles and functions in relation to Defences handling of aviation noise complaints and in accordance with the ANO Charter as amended from time to time

a reviewing the handling of complaints or enquiries made to Defence about aircraft noise

b monitoring and reporting on the effectiveness of community consultation processes relating to aircraft noise undertaken by Defence

c monitoring and reporting on the effectiveness of the presentation and distribution of aircraft noise-related information

d providing targeted reviews of specific aspects of aircraft noise management as requested by Defence and

e making recommendations to the Chief of Air Force for improvements relating to the above matters

Provision of funding to the ANO

8 Defence will provide funding to the ANO through Airservices in accordance with the Funding and Support Agreement at Attachment 2 which may be amended from time to time

9 As stated in clause 17 the parties intend for the Funding and Support Agreement to be legally binding

Confidential information

10 A party may not use any confidential information of another party for any purpose other than performing its obligations under this MoU or disclose any confidential information except with the prior written consent of the party whose confidential information is being used or disclosed

Meetings and communications between the parties

11 The parties will meet annually or as otherwise required to discuss the operation of this MoU

12 To ensure effective communications between Defence Airservices and the ANO the parties have agreed that those holding the following positions will be the first points of contact

Defence Director Combat Capability-Air Force

Airservices Board Secretary

ANO Unit Manager

4

13 Notwithstanding the above any party may where they deem it necessary raise significant issues with more senior staff members in Defence Airservices or the ANO as the case may be

14 Defence will immediately advise Airservices and the ANO of any decisions Defence takes that may inhibit or materially affect the operations of the ANO both in terms of the management of aircraft noise complaints information provision and consultation and in terms of the funding provided to the ANO through Airservices

Reporting

15 The ANO will account to Airservices in relation to the costs of the service provided to Defence on an annual basis in a format agreed between the ANO and Airservices

16 The ANO will provide a report on an annual basis to Defence and Airservices which includes an overview of the use of funding the services provided and statistical data on the cases considered

Legal effect

17 Except for Attachment 2 the parties do not intend for this MoU to be legally binding

Management of this MoU

18 The parties will review the performance and content of this MoU on an annual basis or as otherwise deemed necessary by the parties Each party will inform the other parties of the results of the annual review that they conduct

19 The parties may vary or extend this MoU by agreement in writing

20 This MoU will come into effect on the date on which the MoU is signed by the parties or if signed on different days the date of the last signature The MoU will remain in force for a period of three years unless terminated earlier by any party in accordance with clause 21

21 Any party may terminate this MoU by giving the other parties 60 days written notice of its intention to do so

22 Any dispute arising with respect to the interpretation or implementation of this MoU will be settled amicably through consultation between the parties

23 This MoU may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument

24 A notice or other communication in connection with this MoU must be in writing marked for the attention of the relevant contact person indicated in clause 12 and sent by hand delivery post or email to the address advised by the relevant party to the other parties from time to time

5

Attachment 1 Ministerial approval

AUSTRALIAN SUPER HORNET FLYING OPERATIONS RAAF Base Amberley QLD

Australian Government

Department of the Environment Water Heritage and the Arts

Approval

Australian Super Hornet Flying Operations RAAF Base Amberley Qld (20084410)

This decision is made under sections 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999

Proposed action

person to whom the approval is granted

Department of Defence

proponents ACN (if applicable)

proposed action Proposed flying operations of a new military aircraft the Australian Super Hornet at and around RAAF Base Amberley in South East Queensland

Approval decision

Controlling Provision Decision

Commonwealth land (sections 26 amp 27A) Approved

Commonwealth action (section 28) Approved

conditions of approval This approval is subject to the conditions specified below

expiry date of approval This approval has effect until 31 March 2060

Decision-maker

name and position

signature

date of decision

Garrett MP ironment Protection Heritage and the Arts

6

3 The person taking the action must submit for approval by the Minister an Australian Super Hornet Noise Mitigation and Complaint Resolution Strategy that includes

a A process for the establishment of an appropriately qualified independent mechanism (eg panel person committee) similar in role and function to the Aircraft Noise Ombudsman to be established in accordance with the White Paper on National Policy Flight Path to the Future released by the Australian Government on 16 December 2009 to

i Consider complaints regarding noise generated by the Australian Super Hornet flying operations not resolved through the process outlined in paragraph 2

Ii Assess complaints for compliance with the Australian Super Hornet Noise Management Plan at paragraph 1

iii Conduct an independent review of lioise complaint handling undertaken in accordance with paragraph 2 and

iv Make recommendations and identify measures to the person taking the action to resolve complaints

b A process for the person taking the action to consider the recommendations made including the measures identified by the independent mechanism and to communicate to affected persons any decisions or actions to be taken

c A requirement for the person taking the action to publish an annual report noting the recommendations made and the measures identified by the appropriately qualified independent mechanism specifying the action taken by the person in response and to the extent that recommendations and measures have not been implemented reporting on the reasons why

d A process for resolving appeals against decisions made by the person taking the action in relation to decision or actions with respect to complaints

7

e A timeframe for the implementation of the strategy that includes the following

i Identification of the period of time over which noise data to be used by the independent process will be collected

ii When the independent body will be established

iii The period of time during which the mechanism will assess and process complaints which must begin no later than 1 January 2012

f A consultation process to provide a draft of the Australian Super Hornet Noise Mitigation and Complaint Resolution Strategy for public comment and incorporate comments prior to submission to the Minister

8

Attachment 2

Funding and Support Agreement

Parties

A Airservices Australia ABN 59698720886 (Airservices)

B Commonwealth of Australia represented by the Department of Defence ABN 68 706 814312 (Defence)

Terms and conditions

1 Definitions

In this Agreement unless expressed otherwise

Additional Fees means the fees payable by Defence for the Additional Services

Additional Services means services that are in addition to and outside the scope of the Services which are provided by Airservices through the ANO after Defence accepts a Work Proposal

Agreement means this agreement between Airservices and Defence

Annual Fee means the annual fee specified in clause 9(a) for providing the Services as varied each year in accordance with clause 9(b)

ANO means the person currently holding the position of the Aircraft Noise Ombudsman as appointed by the Board of Airservices from time to time

Background IP means alilP that is in existence at the date this Agreement comes into force or is subsequently brought into existence other than as a result of the performance of this Agreement and is embodied in or attaches to the Services or is otherwise connected to the Services

Commencement Date means the date on which the MoU is signed by the parties or if signed on different days the date of the last signature

Fees means the Annual Fee and any Additional Fees and includes all expenses incurred in supplying the Services

Foreground IP means all IP which is created under or otherwise in connection with this Agreement

GST has the same meaning as in the GST Law

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated regulations

Intellectual Property or IP means all copyright and all rights in relation to inventions (including patent rights) registered and unregistered trademarks (including service marks) registered and unregistered designs and circuit layouts and any other rights resulting from intellectual activity in the industrial scientific literary and artistic fields recognised in domestic law anywhere in the world

Invoice Address means Finance Manager-Business Headquarters Air Combat Group Building 133 Medowie Road Williamtown NSW 2314 or such other address notified to Airservices from time to time

9

MoU means the memorandum of understanding between Airservices Defence and the ANO to which this Agreement forms Attachment 2

Personal Information has the same meaning as in the Privacy Act 1988 (Cth)

Request for Additional Services means a request for the provision of Additional Services issued by Defence to Airservices in accordance with clause 4(a) of this Agreement

Services means the services described in clause 3(a)

Tax includes

a any tax withholding tax charge rate duty (including stamp duty and customs duty) impost excise tax by whatever name called and whether Australian foreign state municipal provincial county or local (including GST unless the context requires otherwise) and

b any interest charge penalty fee fine or other amount of any kind assessed charged or imposed on orin respect of the above

Tax Invoice has the same meaning as in the GST Law

Taxable Supply has the same meaning as in the GST Law

Work Proposal means a proposal for Additional Services prepared by Airservices in accordance with clause 4(c)

2 Term

The term of this Agreement aligns with that of the MoU

3 Services

a Subject to clause 3(b) and in consideration for the Annual Fee Airservices will provide the following Services to Defence through the ANO

i reviewing the handling of complaints or enquiries made to Defence about aircraft noise

ii monitoring and reporting on the effectiveness of community consultation processes relating to aircraft noise undertaken by Defence

iii monitoring and reporting on the effectiveness of the presentation and distribution of aircraft noise-related information

iv providing targeted reviews of specific aspects of aircraft noise management as requested by Defence and

v making recommendations to the Chief of Air Force for improvements relating to the above matters

b The parties acknowledge that the provision of the Services is subject to the operational constraints of Airservices and the ANO

10

4 Additional Services

a If Defence requires the ANO to provide Additional Services Defence may submit to Airservices a Request for Additional Services at least 30 days prior to the Additional Services being required

b A Request for Additional Services is not binding on Airservices and does not impose any obligation on Airservices to accept the Request for Additional Services

c Upon receipt of a Request for Additional Services Airservices will in its absolute discretion consider if Airservices and the ANO have the availability and spare capacity to provide the Additional Services and if so will provide a Work Proposal to Defence which includes

i a description of the scope of the Additional Services that can be provided

ii a quote for the Additional Fees that will be payable

iii any limitations on Airservices or the ANOs ability to supply the Additional Services and

iv if applicable the location where the Additional Services will be provided

d Defence may reject negotiate or accept any Work Proposal by giving Airservices written notice

e If Defence accepts a Work Proposal the Additional Services will be undertaken in accordance with the terms and conditions of this Agreement and subject to any conditions specified in the Work Proposal

f No legal or equitable obligation in respect of the Additional Services will arise between the parties unless and until such time that a Work Proposal for the Additional Services is accepted by Defence

g In the event of any inconsistency between this Agreement and a Work Proposal this Agreement will prevail to the extent of the inconsistency

5 Access to Defence facilities and personnel

a Where Defence provides the ANO with access to any Defence place area or facility the ANO must comply with any security and safety requirements notified to the ANO by Defence or of which the ANO is aware and ensure that its officers employees and agents are aware of and comply with such security and safety requirements

b Subject to Defence security requirements Defence must provide the ANO with

i access to Defences sites and premises to the extent reasonably required by the ANO to perform the Services and any Additional Services

ii adequate working space and facilities and access to and use of all necessary information to provide the Services and the Additional Services and

iii reasonable access to those Defence personnel required for the delivery of the Services and any Additional Services

11

6 Intellectual Property

a Nothing in this Agreement affects the ownership of Background IP

b Ownership of all Foreground IP vests on its creation in Airservices

c Defence grants to Airservices a royalty free irrevocable non-exclusive perpetual world wide licence (including the right to sub-licence) in respect of all Background IP owned or controlled by Defence to use copy communicate maintain modify and develop the Services or Additional Services

d Airservices grants to Defence a royalty free non-exclusive non-transferable irrevocable perpetual world wide licence in respect of all Background IP and Foreground IP owned or controlled by Airservices (including the right to subshylicence) to use for purposes connected with the MoU

7 Disclaimer of liability

a Defence acknowledges that except as expressly stated otherwise in entering into this Agreement it has not relied on any representations warranties promises or undertakings by Airservices but has relied on its own knowledge or independent advice and uses the Services and any Additional Services at its own risk

b Airservices total liability to Defence for all loss arising out of breach of this Agreement or in connection with the relationship established by it is limited in the aggregate for any and all claims to the Annual Fee applicable at the time

8 Privacy

a Either party must

i if they obtain Personal Information in the course of performing this Agreementuse or disclose that Personal Information only for the purposes of this Agreement subject to any applicable exceptions in the Privacy Act 1988 (Cth)

ii comply with their obligations under the Privacy Act 1988 (Cth) and

iii not do any act or engage in any practice which would be a breach of the Australian Privacy Principles

b Where a party

i becomes aware of a breach or possible breach of any of the obligations contained or referred to in this clause 8 whether by Defence Airservices or any other person to whom the Personal Information has been disclosed for the purposes of this Agreement or

ii in relation to Personal Information obtained in the course of performing the Agreement becomes aware that a disclosure of Personal information may be required by law or

iii is approached by the Privacy Commissioner

the other party must be notified as soon as reasonably practicable

c Both parties will ensure that their officers employees and agents who deal with Personal Information for the purposes of this Agreement are aware of and comply with this clause 8

12

9 Annual Fee

a The Annual Fee for the Services is $70342 (GST exclusive) for the first year of this Agreement

b Prior to each anniversary of the Commencement Date the parties will negotiate and agree a Fee for the following year which will permit Airservices to recover the full costs associated with providing the Services In doing so the parties will refer to and be guided by considerations including

i Airservices entitlement to fully recover the costs associated with providing the Services through the ANO

ii the Fees incurred in the previous year for providing the Services

iii the anticipated workload for the following year and

iv any other issues relevant to the calculation of the Fees

c Airservices and the ANO will maintain and share relevant records with Defence to substantiate the costs of any claim for payment made in accordance with this Agreement

d Any Fees paid to Airservices under this Agreement that are not expended within the relevant year will be returned to Defence within 30 days of a request for the return of funds from Defence

10 GST and Taxes

a Unless specified otherwise the Fees include GST for supplies made under this Agreement that are a Taxable Supply

b Unless expressly specified otherwise (for example in relation to GST)

i all amounts payable consideration provided or monetary limits in this Agreement are exclusive of any Taxes and

ii Defence must pay all Taxes arising in respect of this Agreement (other than Taxes arising in respect of any gain made by Airservices under this Agreement)

11 Invoicing and payment

a Defence must pay Airservices the Fees for the Services and any Additional Services

b Airservices will invoice Defence

i for the Services at the Commencement Date and at each anniversary of the Commencement Date of this Agreement and

ii for the Additional Services at the conclusion of the Additional Services

c Invoices will be in the form of a valid Tax Invoice will set out the Fees and will be sent to the Invoice Address

d Defence must pay correctly rendered invoices by the payment method specified in the Tax Invoice within 30 days of invoice receipt

13

12 Dispute resolution

a If a party believes a dispute has arisen in connection with this Agreement that party must give written notice to the other party adequately identifying and providing details of the dispute

b On receipt of a dispute notice the parties must use their best efforts to resolve the dispute without delay including by escalating the dispute to senior management if necessary

c If those efforts described in clause 12(b) are unsuccessful then no later than 20 days after the dispute notice is received the parties must meet in person at an agreed time and place in order to discuss the dispute in an attempt to resolve the dispute by negotiation Each party must be represented at the meeting bya person with authority to resolve the dispute

13 Termination and reduction

a Either party may terminate this Agreement or reduce its scope at any time by 60 days written notice to the other party

b Where the scope of this Agreement is proposed to be reduced in accordance with clause 13(a) the Fees will be reduced proportionately to reflect the reduction in Services and the parties will execute a variation to reflect this

clf this Agreement is terminated under clause 13(a) Airservices will

i provide Defence with an itemised financial acquittal covering the period from the start of the relevant year to the date of termination and

ii reimburse Defence for any Fees that have not been expended prior to the effective termination date

14 Agreement management

a The parties will meet at least annually to discuss and review the operation of this Agreement

b This Agreement may only be varied if the parties execute a written variation

c This Agreement may consist of a number middotof counterparts and the counterparts taken together constitute one and the same instrument

15 Applicable law

This Agreement is governed by and is to be construed in accordance with the laws applicable in the Australian Capital Territory and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of the Australian Capital Territory and its courts of appeal

16 Entire agreement

This Agreement represents the parties entire agreement in relation to the subject matter and supersedes all prior representations communications agreements statements and understandings whether oral or in writing

14

Execution page

Executed as an agreement

SIGNED by Paul Thomas Lucas as authorised representative for Airservices Australia in the presence of I

Name of witness (block letters)

SIGNED by GC Brown AO as authorised representative for the Commonwealth of Australia as represented by the Department of Defence in the presence of

Signature of witness


By executing this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of Airservices Australia

By ecu this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of the Commonwealth of Australia as represented by the Department of Defence

Date

15

DOCUMENT INFORMATION

Defence

Chief of Air Force R1-6-C001 PO Box 7902 Canberra BC ACT 2610 Ph (02) 6265 5474 geoffreybrowndefencegovau

Owners Airservices Austraiia

Airservices Australia Alan Woods Building 25 Constitution Avenue Ganberra ACT 2600 Ph (02) 6268 4111 leahkennedyairservicesaustr aliacom

Aircraft Noise Ombudsman

Aircraft Noise Ombudsman GPO Box 1985 Canberra City ACT 2601 Ph 1800 266 040 anoanogovau

2

Purpose


Background

The ANO








3


















ANO Unit Manager

4



Reporting



Legal effect










5





Approval



Proposed action





Approval decision






Decision-maker

name and position

signature

date of decision


6










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15

Purpose


Background

The ANO








3


















ANO Unit Manager

4



Reporting



Legal effect










5





Approval



Proposed action





Approval decision






Decision-maker

name and position

signature

date of decision


6










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15


















ANO Unit Manager

4



Reporting



Legal effect










5





Approval



Proposed action





Approval decision






Decision-maker

name and position

signature

date of decision


6










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15



Reporting



Legal effect










5





Approval



Proposed action





Approval decision






Decision-maker

name and position

signature

date of decision


6










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15





Approval



Proposed action





Approval decision






Decision-maker

name and position

signature

date of decision


6










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15










7






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15






8

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15

Attachment 2


Parties




1 Definitions















9





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15





Tax includes






2 Term


3 Services








10



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15



















11









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15









8 Privacy

a Either party must




b Where a party






12

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15

9 Annual Fee









10 GST and Taxes












13















15 Applicable law


16 Entire agreement


14

Execution page









Date

15















15 Applicable law


16 Entire agreement


14

Execution page









Date

15

Execution page









Date

15

Documents

e • ?' airSerVICeS - Department of Defence · relationship between the Department of Defence (Defence), Airservices Australia (Airservices) and the Aircraft Noise Ombudsman (AND)