Corowa v State of Queensland and Judy Niota Benton

54 Sections 86 and 90 which are criminal provisions under State law are inconsistent with the Commonwealth regime as set out in the Airports Act and the EPBC Act for the regulation of development on the airport land.

55 Further s 112 of the Airports Act provides that it is the intention of the Parliament that Pt 5 of the Airports Act is to apply to the exclusion of a law of a State or Territory.

56 Part 6 is separate from Pt 5 and relates to the conduct of operations on airport land. It does not apply to the building work which is the subject of a major development plan approval under Pt 5. Finding 57 The issue raised by the Applicant concerns the operation of the Commonwealth Constitution and consequently falls within s 78B of the Judiciary Act 1903 (Cth) whereby the Attorneys-General of the States and Commonwealth must be notified of the proceedings and given the opportunity to intervene. As this application is for urgent interlocutory relief s 78B(5) applies so that this Court can determine the issue of whether it has jurisdiction if the Court thinks it necessary in the interests of justice to do so.

58 Because of s 52 of the Constitution, State laws can only apply to Commonwealth places if s 4 of the Application of Laws Act (Cth) renders them "applied laws". This Court only has jurisdiction under s 7 of the Act if the relevant State laws are applied laws under s 4. 59 If an inconsistency arises between Commonwealth and State laws by virtue of s 109 of the Constitution the State law cannot be applied law because of s 4(2)(a). Such an inconsistency arises apart from s 52 of the Constitution, which is expressly excluded as a relevant matter by s 4(2)(a). Accordingly this Court will not have jurisdiction if there is inconsistency as referred to in s 109 of the Constitution.

60 The provisions of the Airports Act in Div 5 and 6 have been set out in some detail above as it is necessary in order to understand the arguments of the parties to also understand the nature of the regulatory scheme in place for development on airport land. It is clear that the regulatory scheme under the Airports Act is extensive and, under Div 5, comprehensive. That needs to be considered in light of the Applicant's argument that criminal provisions in s 86 and s 90 of the NPW Act apply to development on airport land.

61 The Applicant argued that there is no direct inconsistency between the State and Commonwealth laws in this case so that both can apply. There is no equivalent Commonwealth law which has authorisations or prohibitions concerning the preservation or disposal of aboriginal objects contained in the Airports Act. Further, s 136 is in Div 6 of the Airports Act, applies so that s 86 and s 90 of the NPW Act can be said to apply to the airport land.

62 The Applicant also argued that the Airports Act did not "cover the field" for the management of development on airport land. The Respondents argued that s 86 and s 90 of the NPW Act if applied would alter, impair or detract from the Commonwealth regulatory scheme for airport land.

63 Division 5 is concerned with the regulation of major development work on airport land. Major development is defined and includes that part of the Tugun bypass which is to take place on the airport land. It is clear that the Tugun bypass project to the extent it takes place on airport land has been regulated under Pt 5 Div 4. Relevant sections are set out at par 21 - 33. A draft major development plan was approved by the relevant Commonwealth Minister on 20 February 2006 after referral to the Minister for the Environment as required by Pt 4 Div 4 of the EPBC Act (s 160(2)(b)). Approval was given under Pt 9 of the EPBC Act on 16 February 2006 by the Minister for the Environment (relevant sections are set out at par 29 - 33). The approval under the Airports Act required the preparation and implementation of a Cultural Heritage Management Plan before the commencement of construction which requires certain matters to be addressed as set out in par 49. That Cultural Heritage Management Plan has been prepared and approved by the Commonwealth Department of Transport and Regional Services and the Commonwealth Department of Environment and Heritage. 64 Part 5 Div 3 (par 16 - 20) provides for the making of airport master plans which must be approved by the Minister in relation to the use of airport land. Part 5 Div 5, parts of which are set out at par 34 - 36 concerns building control and requires that no building or earthworks may be carried out on airport land unless they are consistent with a major development plan in force for that development. 65 The scheme of the Airports Act in Div 5 suggests that it is a comprehensive scheme for the regulation of major development at core airports. Once Div 5 together with the requirements of the EPBC Act has been complied with and the approval of the relevant Commonwealth Minister obtained under it, I consider that any State law which seeks to further regulate the activity for which approval has been obtained under Pt 5 will operate in a way that is inconsistent with that Part. As the Respondent argued, the particular provisions of the NPW Act if applicable do alter, detract from or impair the Commonwealth scheme under the Airports Act.

66 This view is further reinforced by s 112(1) in Pt 5. The Applicant argued that s 112(1) in Pt 5 Land Use Planning and Building Controls did not exclude s 86 and s 90 of the NPW Act from operating because that provision only concerned laws relating to land use, planning and building, as reflected in the heading of the Division. The section is not in its terms limited, as the Applicant argued, to land use, planning and building laws. While s 112(2) does particularly refer to the exclusion of land use planning and building laws of a State, s 112(1) is not so limited. Its application is not limited by the division heading "Land Use, Planning and Building Controls" to refer only to laws dealing with that subject matter as the Applicant argued. It contains a broad prohibition on the application of State laws to those matters regulated by Pt 5. The development on airport land the subject of this injunction application is regulated by Pt 5.

67 I agree with the First Respondent's submissions that Pt 5 and Pt 6 have different work to do, one is not subject to the other. Part 6 is directed to the conduct of operations on airport land. The Tugun bypass project on the airport land does not fall under Pt 6. 68 The Applicant also argued that the subject provisions of the NPW Act are not concerned with land use, planning and building controls but rather should be considered as relevant to the maintenance of environmental standards pursuant to Div 3 Pt 6 of the Airports Act (1996). Because s 136 in Div 6 provides that State law is to apply (see par 48) the Applicant argued that s 112(1) did not apply to the NPW Act provisions in issue. I have already held that s 112(1) does apply to the proposed development of the Tugun bypass on airport land. 69 Division 3 of Pt 6 relates to environmental standards at airports. It specifies environmental offences on airport land. Section 132 provides that regulations may make standards and impose requirements in relation to, inter alia, interference with sites of significance to Aboriginal and Torres Strait Islander people. While s 136 states that it is the intention of the Parliament that Div 3 of Pt 6 is not to apply to the exclusion of a law of a State to the extent that law is capable of operating concurrently with this Division, that section does not apply to major development approved under Pt 5. Nor does s 136 apply to the requirement for an environment strategy specified in Div 2 of Pt 6 (s 114 - s 131). As set out above there is an approved environment strategy in place for Coolangatta Airport. Clause 3.03 of the Regulation set out above provides that sites of indigenous significance must be identified in an environment strategy.

70 In arguing that the Airports Act does not cover the field in relation to the matters the subject of s 86 and s 90 of the NPW Act, the Applicant relied on Commonwealth and Anor v Wood and Anor (2006) 148 FCR 276. That case involved the bringing of a complaint under the Anti-Discrimination Act 1998 (Tas), to the Tasmanian Anti-Discrimination Tribunal in relation to the operation of the Tasmanian Squadron of the Air Training Corps. That body was regulated by Commonwealth legislation, the Cadet Forces Regulations 1977 (Cth), created pursuant to the Air Force Act 1923 (Cth). The Tasmanian Act purported to bind the Crown. The Commonwealth took action to terminate the complaint before the Tribunal. It argued that the Tasmanian Act did not apply because of Ch III of the Constitution, s109 of the Constitution and because the Act impaired the capacity of the Commonwealth executive. It was held by Heerey J at [34] that the Act does bind the Commonwealth. This was because the Anti-Discrimination Act was beneficial legislation which ought to be given wide application. His Honour applied Re Residential Tenancies Tribunal of NSW and Henderson and another; ex parte Defence Housing Authority (1997) 190 CLR 410 where at 427 Brennan J stated that: There is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter.

71 The Applicant in the present case also sought to rely on Re Residential Tenancies Tribunal to argue that the respective State and Commonwealth regimes were complementary. That case involved the leasing of NSW property under the Residential Tenancies Act 1987 to the Defence Housing Authority, a Commonwealth authority created under the Defence Housing Authority Act 1987 (Cth). Section 24(4) of the NSW Act enabled the landlord to make an application to the Residential Tenancy Tribunal for the making of an order authorising it to enter residential premises, and s29(5)(c) of that Act empowered the tribunal to order that a tenant provide a copy of a key to the Tribunal to enable this. The landlord in this case made such applications, and the Commonwealth argued against these, contending that the NSW Act was constitutionally invalid or beyond the power of the NSW Parliament to enact, to the extent that it purported to confer jurisdiction on the Tribunal over the Authority. A majority of the High Court, Kirby J dissenting, held that the matters dealt with by the NSW Act did not fall within the exclusive power of the Commonwealth under s 52(ii) of the Constitution (see Brennan J at 424, Dawson, Toohey and Gaudron JJ at 438, McHugh J concurring with Dawson, Toohey and Gaudron JJ at 449, and Gummow J concurring at 462). They also held that the Commonwealth Act assumed the operation of the common law as modified by statute and therefore there was no inconsistency between the State and Commonwealth Acts regarding s 109 of the Constitution (see Brennan J at 424, Dawson, Toohey and Gaudron JJ at 432-434, McHugh J at 460 and Gummow J concurring at 462). Finally, the Court held that a State law may not validly restrict or modify the capacities of the Crown in right of the Commonwealth but may validly regulate the activities in which the Crown chooses to engage in exercising those capacities (see Brennan J at 427, Dawson, Toohey and Gaudron JJ at 447, McHugh J at 455 and Gummow J at 473). The facts of the case before me which relate to the regulation of development on airport land, a Commonwealth place, the subject of an extensive regulatory regime under Commonwealth legislation are quite different to the circumstances addressed by these cases. Section 52 was also held not to apply to confer exclusivity, unlike this matter where s 52 clearly must operate subject to the Application of Laws Act (Cth). They do not require the same analysis of the application of s 4 of the Application of Laws Act (Cth) as this case requires. I do not consider they can apply here to support the Applicant's arguments.

72 The Respondent relied on the case of Australian Mutual Provident Society v Goulden and Others (1986) 160 CLR 330. In this case, the High Court held that s 49K(1) of the Anti-Discrimination Act 1977 (NSW) had no application because of s109 of the Constitution, in that it was inconsistent with s 78 of the Life Insurance Act 1945 (Cth). The majority of the Court held at 339 that the NSW Act would have rendered unlawful any refusal to insure a person on the ground of "physical impairment" and this was held to be inconsistent because it negated the essential legislative scheme of the Commonwealth legislation which allowed insurance companies to classify risks and fix premiums regarding insurance according to their own judgment, based on actuarial advice. These facts also differ from those before me but to the extent they can be considered analogous to the facts of this case they are similar to the extent that I consider the Airports Act does seek to regulate development of airport land comprehensively. What is clear from reviewing all these cases is that whether there is inconsistency under s 109 between a Commonwealth and State statute is very much dependent on the particular legislative provisions in issue. 73 The Applicant relied on Westfield Management Ltd v Brisbane Airport Corporation Ltd [2005] FCA 32 as an example of a case where there was acceptance of the "layering" effect of planning regulations under the Airports Act to support its argument that Pt 6 could apply as well as Pt 5. That case concerned the operation of a tenant on airport land under an airport lease. Cooper J held at [52] that: Where an airport lease permits uses other than as an airport those additional uses, if the airport-lessee company wishes to engage in them, must be included in a draft or final master plan and must address the extent of inconsistency (if any) with planning schemes in force under a law of the State or Territory in which the airport is located: s 71(6). The control of land use and related development at a core regulated airport, including the use of the airport site as an airport, lies in the power of the Minister to approve, or refuse to approve, a master plan under s 81. Once approved the final master plan controls land use and related development at a core regulated airport by limiting it to development which is consistent with what has been approved in the final master plan.

74 While this case was referred to in the written submissions relied on by the Applicant's agent there was no elaboration in those submissions of how this case assisted the Applicant's arguments. The case does not support the argument made by the Applicant in my view. If anything the operation of the regime under the Airports Act relied on by the Respondents as it confirms that use of land on airport sites is controlled by the relevant Commonwealth Minister who must approve the final master plan under which any use is to take place. 75 The submission from the Applicant that there is no equivalent authorisation or prohibitions concerning the preservation or disposal of aboriginal objects contained within the Airports legislation is not to the point given the provisions of s 112(1) and the scheme for the regulation of major development contained in the Airports Act in Pt 5. Having examined the Commonwealth legislative regime which is set out in some detail above I consider that the Commonwealth is intending in the Airports Act to provide a comprehensive legislative scheme in relation to development on airport land in Pt 5. Whether there are similar offence provisions under Commonwealth law as apply under s 86 and s 90 of the NPW Act is not relevant in these circumstances. 76 That is really all I need to consider on that submission but I also note that there are provisions for the management of cultural heritage under Pt 6 Div 2 in relation to the preparation and implementation of an environment strategy and Regulations also dealing with cultural heritage (see par 38 - 40). That scheme includes regulation of activities in relation to cultural heritage matters and requires their assessment and that measures be taken in relation to their protection. It is unnecessary for this judgment that I undertake an exhaustive analysis of these matters.

77 Three further arguments made by the Applicant were as follows. The Applicant argued that the Court must determine if the State law is within the legislative competence of the Commonwealth, apart from s 52. In other words, the Court should ask whether the Commonwealth could validly enact s 86 or s 90 of the NPW Act. If the answer is in the negative s 4(2)(a) of the Application of Laws Act (Cth) cannot exclude these sections under s 4(1). I agree with counsel for the First Respondent that this argument is misconceived. If the answer is in the negative it does not mean that State law applies under s 4(1). I do not consider this is the correct inquiry to be made when assessing whether State law is applied law under s 4.

78 The Applicant also argued that neither the Airports Act or the EPBC Act includes express provisions detracting from the subject provisions of the NPW Act. Neither deals with the preservation or disposal of aboriginal objects, remains or relics. Neither suggests that the offences in s 86 and s 90 of the NPW Act do not apply. I agree with the First Respondent's counsel it is not correct in law to ask whether a Commonwealth law specifically excludes particular State laws and if it does not these are presumed to apply.

79 The Applicant also argued that because there were references to the DEC in the documents relied on to obtain approval for the Tugun bypass, this suggests that DEC has a regulatory role in relation to the project. The references relied on refer to, inter alia, the delivery of recovered objects to the DEC, as is specifically provided for in cl 4.05 of the Regulations in relation to the discovery of objects that indicate that there is a site of previously unrecognised significance. There is simply no legal basis for so concluding simply because there are references to the DEC in the documents relating to the Tugun bypass. I note that the Cultural Heritage Management Plan was prepared for three bodies, the New South Wales Roads and Traffic Authority, the Queensland Department of Main Roads and the airport operators, and was intended to satisfy the requirements of New South Wales, Queensland and Commonwealth legislation.

80 I do not consider that s 86 and s 90 of the NPW Act apply to airport land being a Commonwealth place as they are not applied laws within s 4(1) of the Application of Laws Act (Cth). Consequently these provisions cannot be enforced pursuant to s 16 and s 20(1) of the Land and Environment Court Act 1979 as this Court does not have jurisdiction in this matter. The Applicant must fail in its application for interlocutory relief.

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