Corowa v State of Queensland and Judy Niota Benton

[2006] NSWLEC 312

Land and Environment Court

of New South Wales

CITATION:	Corowa v State of Queensland and Judy Niota Benton [2006] NSWLEC 312
PARTIES:	APPLICANT Robert Ian Corowa FIRST RESPONDENT State of Queensland SECOND RESPONDENT Judy Niota Benton
FILE NUMBER(S):	40423 of 2006
CORAM:	Pain J
KEY ISSUES:	Jurisdiction :- whether state laws apply in commonwealth place being airport land - inconsistency between state and commonwealth laws Interlocutory injunction :- whether should issue for protection of Aboriginal objects
LEGISLATION CITED:	Airports Act 1996 (Cth) s3, s7, s68, s71, s79, s81, s85, s89, s90(4), s91, s92, s94, s98, s99, s112, s116, s124, s126, s130, s131, s132, s133, s136 Airport (Environment Protection) Regulation 1997 (Cth) cl 3.03, cl 3.06, cl 4.05 Air Force Act 1923 (Cth) Anti-Discrimination Act 1977 Cadet Forces Regulations 1977 (Cth) Commonwealth of Australia Constitution Act 1900 (Cth) s52, s109 Commonwealth Places (Application of Laws) Act 1970 (Cth) s4, s7 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s160, s163, s528 Judiciary Act 1903 (Cth) s78B Land and Environment Court Act 1979 s16, s20 Life Insurance Act 1945 (Cth) National Parks and Wildlife Act 1974 s2A, s86, s90
CASES CITED:	Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 ; Commonwealth and Anor v Wood and Anor (2006) 148 FCR 276; Re Residential Tenancies Tribunal of New South Wales and Henderson and Another; Ex parte the Defence Housing Authority (1997) 190 CLR 410; The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 ; Westfield Management Ltd v Brisbane Airport Corporation Ltd [2005] FCA 32
DATES OF HEARING:	31/05/06
DATE OF JUDGMENT:	06/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Alan Oshlack (Agent) FIRST RESPONDENT Bret Walker (Senior Counsel) Adrian Galasso (Barrister) SOLICITORS Blake Dawson Waldron SECOND RESPONDENT No Appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 June 2006

40423 of 2006 Robert Ian Corowa v State of Queensland and Judy Niota Benton

JUDGMENT

1 Her Honour: The Applicant has filed Class 4 proceedings seeking declarations and orders in relation to aboriginal objects affected by the Tugun bypass project. That project is the construction of a highway from Queensland to New South Wales which passes over Coolangatta Airport land, which is a Commonwealth place (“the airport land”).

2 An interlocutory injunction is sought on the basis that s 86 and s 90 of the National Parks and Wildlife Act 1974 (“the NPW Act”) are not being complied with on the airport land.

3 The Respondent argued that the Court has no jurisdiction to hear this matter because those particular provisions of the NPW Act can have no application to the airport land because of s 109 of the Commonwealth Constitution.

4 The Applicant is seeking an order restraining the First Respondent, its servants, agents, employees or contractors from carrying out any work or activity including vegetation clearing, earth excavation, and soil stockpiling until such time as it has been issued with a s 90 consent by the Director- General of the Department of Environment and Conservation (“DEC”).

5 The Applicant also seeks an order restraining the Second Respondent, her employees, contractors or agents from carrying out any work or activity including auguring, digging, excavation, soil stockpiling for the purposes of discovery and collection of aboriginal objects on the land, until such time as valid approval pursuant to s 87 of the NPW Act has been issued by the Director-General of DEC. The Director-General of DEC is not a party to these proceedings.

Legislation
National Parks and Wildlife Act 1974 (New South Wales)

6 Section 2A of the NPW Act sets out the objects of the Act. The object of s 2A relevantly provides:

(a) the conservation of nature, including, but not limited to, the conservation of:
…

(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:

(i) places, objects and features of significance to Aboriginal people, and

(ii) places of social value to the people of New South Wales, and

(iii) places of historic, architectural or scientific significance,

7 Section 86 of the NPW Act states:

A person, other than the Director-General or a person authorised by the Director-General in that behalf, who:
(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object,

(b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust,

…
except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.

8 Section 90 provides:

Destruction etc of Aboriginal objects or Aboriginal places
(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).


(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. …

Commonwealth of Australia Constitution Act 1900 (Cth)

9 Section 52 of the Commonwealth of Australia Constitution Act 1900 (Cth) (“the Constitution”) states:

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to

(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purpose;
(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth;
(iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

10 Section 109 provides:

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.

Commonwealth Places (Application of Laws) Act 1970

11 Section 7 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (“the Application of Laws Act (Cth)”) deals with the jurisdiction of the Court and provides at s 7(1):

The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place.

12 Section 4 of the Application of Laws Act (Cth) states:

(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.
(2) This section does not:
(a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth place
…

Airports Act1996 (Cth)

13 Section 3 of the Airports Act 1996 (Cth) (“the Airports Act”) relevantly provides that:

The objects of this Act are as follows:
(a) to promote the sound development of civil aviation in Australia;
(b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c) to promote the efficient and economic development and operation of airports;
…

14 Part 5 is entitled “Land Use, Planning and Building Controls”.

15 Div 2 section 68 provides that Pt 5 applies to a core regulated airport. Section 7 prescribes Coolangatta Airport to be a core regulated airport.

Part 5 – Division 3 – Airport Master Plans

16 Section 71 requires the airport lessee company to prepare a draft master plan.

17 Section 79 requires the draft master plan to be publicly exhibited.

18 Section 81 provides that the Minister for Transport (Commonwealth) may approve or refuse to approve the master plan. Section 81(3) states that:

In deciding whether to approve the plan, the Minister must have regard to the following matters:
…
(b) the effect that carrying out the plan would be likely to have on the use of land:
(i) within the airport site concerned; and
(ii) in areas surrounding the airport;

(c) the consultations undertaken in preparing the plan (including the outcome of the consultations);

…

19 Section 85 provides that if a final master plan for an airport is in force and the airport-lessee company for an airport becomes aware that a particular matter may significantly affect the achievement of the plan, the company must, within 60 days after it becomes aware of that matter, give the Minister a written notice setting out the particulars of the matter and explaining the effect of the matter on the achievement of the plan.

20 An approved master plan is in force for Coolangatta Airport.

Part 5 – Division 4 – Major Development Plans

21 Section 89 outlines the concept of a major airport development. A major airport development is a:

… development that is carried out at an airport site and that consists of:

(a) constructing a new runway; or

(b) extending the length of a runway; or
…

(m) a development of a kind that is likely to have significant environmental or ecological impact; or

(n) if a final environmental strategy is in force for the airport—a development which affects an area identified as environmentally significant in the environmental strategy;
…

22 A trigger for the requirement to prepare a major development plan is development which has a significant environmental or ecological impact or which affects an area identified in the approved environment strategy as environmentally significant in the environment strategy. Division 2 of Pt 6 (set out below) contains the process for preparing and approving an environment strategy at the airport including identifying sites of environmental significance.

23 Section 90(4) provides that:

A person (other than an airport-lessee company) must not:

(a) carry out a major airport development relating to an airport; or

(b) cause or permit to be carried out a major airport development relating to an airport;

unless:

(c) the carrying out of the development is in accordance with a major development plan approved under this Division; or

(d) the development is of a kind declared by the regulations to be exempt from this Division.

24 Section 91 states that a major development plan must set out:

…
(h) the airport-lessee company’s assessment of the environmental impacts that might reasonably be expected to be associated with the development; and
(j) the airport-lessee company’s plans for dealing with the environmental impacts mentioned in paragraph (h) (including plans for ameliorating or preventing environmental impacts); and
(k) if a draft environmental strategy has been approved—the date of the approval; …

25 Section 92 states that the draft major development plan must be publicly exhibited.

26 The Minister may approve or refuse to approve the plan. Section 94(3) provides that:

In deciding whether to approve the plan, the Minister must have regard to the following matters:
…

(c) the impact that carrying out the plan would be likely to have on the environment;

(d) the consultations undertaken in preparing the plan (including the outcome of the consultations);
…

27 Section 94(5) provides that:

If a final master plan is in force for the airport, the Minister must not approve the draft major development plan unless it is consistent with the final master plan.

28 Section 94(7) provides that:

The Minister may approve the draft major development plan subject to one or more conditions.

Part 5 – Division 4 – Major Development Plans – Integration with Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”)

29 Section 160(1) and (2) of the EPBC Act relevantly provide that:

(1) Before a Commonwealth agency or employee of the Commonwealth gives an authorisation (however described) of an action described in subsection (2), the agency or employee must obtain and consider advice from the Minister in accordance with this Subdivision.

…
(2) Subsection (1) applies in relation to:
…
(c) the adoption or implementation of a major development plan (as defined in the Airports Act 1996);

30 Part 8 of the EPBC Act (except certain sections) apply in relation to the assessment and consideration of the major development plan by the Minister for the Environment.

31 Section 163 of the EPBC Act provides that:

The Minister must give advice on the following matters to the Commonwealth agency or employee of the Commonwealth who referred the proposal to give an authorisation of the action:
(a) whether the agency or employee should give the authorisation;
(b) what conditions (if any) should be attached to the authorisation (if possible) to protect the environment;
(c) any other matter relating to protection of the environment from the action.

32 Section 528 of the EPBC Act defines “environment” to include:

(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b) or (c).

33 The Minister for the Environment gave advice in relation to the major development plan for the Tugun Bypass under Pt 4 of the EPBC Act prior to its approval by the Minister for Transport and Regional Planning.

Part 5 – Division 5 - Building Control

34 Section 98(1) of the Airports Act provides that:

For the purposes of this Division, the following activities are building activities:
(a) constructing buildings or other structures;
…
(c) undertaking, constructing or altering earthworks (whether or not in relation to buildings or other structures);
…

(e) demolishing, destroying, dismantling or removing:
(i) buildings or other structures; or
(ii) earthworks; or
(iii) engineering works; or
(iv) electrical works; or
(v) hydraulic works.

35 Section 98(3) provides that:

For the purposes of this Division, the following are taken to be earthworks or engineering works:
…

(e) roads;

36 Section 99(3) provides that:

A person other than an airport-lessee company must not:

(a) carry out a building activity on an airport site; or

(b) cause or permit to be carried out on an airport site a building activity;

unless:

(c) carrying out the activity is in accordance with an approval granted under regulations made for the purposes of this Subdivision; or

(d) all of the following conditions are satisfied:

(i) the activity is of a kind declared by the regulations to be exempt from this Subdivision;

(ii) in a case where a final master plan is in force for the airport—the activity is consistent with the plan;

(iii) in a case where the building activity is an element of a major airport development (within the meaning of Division 4) and a major development plan is in force for that development—the activity is consistent with the plan.

37 Part 5 Div 6 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).

Part 6 – Environmental Management

38 Part 6 entitled “Environmental Management” also contains a number of Divisions. Division 2 deals with environment strategies for core regulated airports. Section 115 requires that each airport have a final environment strategy.

39 Section 116(2) of the Airports Act provides:

In the case of an airport other than a joint-user airport, a draft or final environmental strategy must specify:
(a) the airport-lessee company’s objectives for the environmental management of the airport; and
(b) the areas if any within the airport site which the airport-lessee company, in consultation with State or Territory and Federal conservation bodies, identifies are environmentally significant; and
(c) the sources of environmental impact associated with airport operations; and

…

(f) the specific measures to be carried out by the airport-lessee company for the purposes of preventing, controlling or reducing the environmental impact associated with airport operations; and
…

(j) such other matters (if any) as are specified in the regulations.

Airport (Environment Protection) Regulation 1997 (Cth)

40 Clause 3.03 of the Airport (Environment Protection) Regulation 1997 (Cth) provides that:

Sites of Indigenous significance
For paragraphs 116(2)(j) and (3)(j) of the Act, a matter that must be specified in an environmental strategy is in area, within the airport site to which the strategy applies, that the airport lessee for the company has identified as being a site of indigenous significance, following consultation with:
(a) any relevant indigenous communities and organisations; and
(b) any relevant Commonwealth or State body.

41 Clause 3.06 relevantly provides that:

An airport lessee company, in specifying any environmental strategy objectives for the airport under paragraph 116(2)(a) or (3)(a) of the Act, must address its policies and targets for:
…
(d) identification, and conservation by, the airport lessee company and other operators of undertakings at the airport, of objects and matters at the airport that have natural, indigenous or heritage value

42 Section 124 of the Airports Act provides that the draft environment strategy is to be publicly exhibited.

43 Section 126 sets out the matters that the Minister must consider when granting approval to the environment strategy. Section 126(3) provides that:

(3) In deciding whether to approve the strategy, the Minister must have regard to the following matters:
(a) the effect that carrying out the strategy would be likely to have on the standard of air quality, water quality and soil quality;

(b) the effect that the carrying out of the strategy would be likely to have on:

(iii) sites of significance to Aboriginal or Torres Strait Islander people;
(c) the effect that carrying out the strategy would be likely to have on noise exposure levels;

(d) details of the consultations undertaken in preparing the strategy (including the outcome of the consultations).

44 Section 130 relevantly provides that:

(1) If a final environmental strategy is in force for an airport, the airport-lessee company for the airport must take all reasonable steps to ensure that the strategy is complied with.

45 Sections 131B to 131E contain offences relating to environmental pollution.

46 Section 132 relevantly provides:

(1) The regulations may make standards and impose requirements that are to be complied with in relation to, or in relation to the prevention or minimisation of:

(a) environmental pollution (including air, water or soil pollution) generated at airport sites; or

(b) impacts on biota or habitat; or

(c) interference with sites of heritage value; or

(d) interference with sites of significance to Aboriginal or Torres Strait Islander people; or

(e) the emission of noise generated at airport sites (other than noise generated by aircraft in flight); or

(f) the disposal or storage of waste at airport sites.

47 Section 133 relevantly provides that:

(1) The regulations may make provision for and in relation to:
…
(c) monitoring, mitigating, remedying or rectifying contraventions of section 132 regulations relating to interference with sites of heritage value; or
(d) monitoring, mitigating, remedying or rectifying contraventions of section 132 regulations relating to interference with sites of significance to indigenous people;

Clause 4.05 of the Airport (Environment Protection) Regulation 1997 relevantly states:
(1) The operator of an undertaking at an airport who, in the course of operating the undertaking, or carrying out work in connection with the undertaking, discovers an object, species or ecological community that indicates that the site of the undertaking, or other work, is a site of previously unrecognised significance:
(a) for local biota or the ecosystems and habitats of native species; or

(b) of the kind mentioned in paragraph 132 (1) (c) or (d) of the Act;

must give written notice of the discovery to the airport-lessee company for the airport and the airport environment officer.
…
(1A) An offence against subregulation (1) is an offence of strict liability.

(2) An airport-lessee company, or airport environment officer, receiving notice under subregulation (1) must:
(a) seek expert advice from an appropriate person on appropriate conservation measures (if any); and

(b) consult with the operator of the undertaking about reasonable means of giving effect to the recommended measures; and

(c) record the discovery in the environmental site register for the airport kept under subregulation 6.02 (3).


(3) For subregulation (2), appropriate person means:

(a) the Department of the Environment, Sport and Territories; or

(b) a body established in the State in which the airport is located, having responsibilities in relation to conservation of local biota, habitat, heritage or kindred matters.

48 Part 6 Div 3 s 136 states:

(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.

Background facts

49 No major development can be carried out at an airport unless carried out in accordance with a Major Development Plan approved by the Minister for Transport and Regional Planning. The approval from the Commonwealth Minister for Transport dated 20 February 2006 for the work on the airport land was for a draft major development plan. This is enabled by s 94(7) of the Airports Act. The approval was made subject to numerous conditions including the preparation and implementation of a Cultural Heritage Management Plan which included:

(a) sub-surface testing of likely sensitive areas prior to construction

(b) measures to minimise impact on the site on the Register of the National Estate, and

(c) emergency measures to be adopted in the event of an unexpected find during construction.

50 That approval was given under Div 4 Pt 5 of the Airports Act.

Applicant’s case

51 The provisions of a State law can operate by means of s 4(1) of the Application of Laws Act (Cth) in a Commonwealth place and s 86 and s 90 of the Act apply to the airport land. Further the Commonwealth Parliament can legislate to give the States the powers to make laws for Commonwealth places. Other aspects of the Applicant’s submissions are referred to in the findings section.

Respondent’s case

52 Section 7 of the Application of Laws Act (Cth) specifies circumstances where State courts have federal jurisdiction in relation to Commonwealth places. State law can only apply as federal law to Commonwealth places if it is applied law by virtue of s 4(1) Application of Laws Act (Cth). Section 4(2)(a) makes clear that State laws which cannot apply because of reasons other than inconsistency with s 52 of the Constitution are not applied laws. Consequently s 7 cannot apply to them and this Court will not have jurisdiction in relation to the Commonwealth place. It is agreed that the exception in s 4(2)(b) does not apply in this case.

53 Development work is authorised under the Airports Act by s 90 which requires that major airport development should not be carried out unless in accordance with a Major Development Plan approved by the Minister for Transport and Regional Planning. The conditions of approval required the preparation of a Cultural Heritage Management Plan.

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 Act1903 (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.