Council of the Municipality of Botany v Federal Airports Corporation

[1992] HCATrans 279

...

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• -, .. ~·31!'

IN THE HIGH COURT OF AUSTRALIA

Registry No C16 of 1992

B e t w e e n -

THE COUNCIL OF THE

MUNICIPALITY OF BOTANY

First Applicant

and

FEDERAL AIRPORTS

CORPORATION

Respondent

Cause removed pursuant to

section 40(1) of the Judiciary

Act 1903

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Airports(4) 89 30/9/92

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

'

AT CANBERRA ON WEDNESDAY, 30 SEPTEMBER 1992, AT 10.23 AM

(Continued from 29/9/92)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  Your Honours, may I, before moving on to the

Environment Protection (Impact of Proposals) Act,

just give Your Honours a couple of references in

relation to matters arising concerning the Federal

Airports Corporation regulations. The first matter

with which I wish to deal in that connection

concerns the method adopted in terms of the

specificity of the references in the regulations to

the State laws which do not affect the licensee's

exercise of rights.

Your Honours, the possibility that legislative

measures might specify in terms the State

provisions which are inapplicable has been adverted

to by the Court on a number of occasions. The

first reference to which I would take the Court is

Wenn v Attorney-General, (1948) 77 CLR 109, where

the provision in question was section 24(2) of the

relevant Commonwealth Act which appears at page 107

commencing at about point 4 on the page.	You will
see that it is said:

tt(l) The provisions of this Division shall
apply to the exclusion of any provisions,

providing -

et cetera. In the reasons of two members of the

Court, there is reference to the fact that there

may be an exclusion of specific provisions.

In that regard may I go first to the reasons

for judgment of Chief Justice Latham, with whose

reasons Justice McTiernan agreed, at page 108.

Your Honours will see in the last paragraph on
page 108 in a passage which commences there and

goes through the whole of page 109, that His Honour

deals with the general principles concerning

inconsistency, and having done that, at the top of
page 110 deals with the particular point.	I invite

Your Honours to read the whole of the first paragraph on page 110, and Your Honours will see

that the way in which His Honour approaches it is

to refer first to the possibility that it may be

ascertained from inference from a Commonwealth

statute that it was the intention that its

provision should be the only law. Then

Your Honours will see two-thirds of the way through

the paragraph the observation:

In the Commonwealth Act now under

consideration, however, the Commonwealth

Parliament has not left this matter to be

determined by an inference (possibly

Airports(4) 90 30/9/92

disputable) from the nature and scope of the

statute.

It then goes on to say it has most expressly stated the intention.

Your Honours, to the same effect are the

observations of Justice Dixon, with whose reasons

Justice Rich agreed, at page 119, commencing in the

paragraph half-way down the page and going through

to the top of page 120. The passage to which I

have referred concludes with the relevantly

important part of it whe·re it says at the top of

page 120 in the second line:

This is a case where the Federal legislation

undertakes a regulation or statutory

determination of the very subject and then

goes on to express an intention that it shall

be an exhaustive declaration of the law on

that particular subject.

Now, Your Honours, that is the first of the two

cases to which I wish to refer. The second is

Australian Coastal Shipping Commission v O'Reilly,

(1962) 107 CLR 47.

DEANE J:  How do you justify Mr Justice Starke's approach in

Wenn? It seems a very good one to me.

MR JACKSON:  I am sorry, does Your Honour have the page?

DEANE J: Page 114.

MR JACKSON:  Your Honour, might I ask why me, with respect?

Your Honour, it should be the other way around, if

I might say so, with profound respect.

Your Honours, I was going to refer to Australian

Coastal Shipping Commission v O'Reilly, (1962)

107 CLR 47 and the passage to which I wish to take

Your Honours is at page 56.

Now, the reasons for judgment to which I am

about to refer were agreed in by Justices Kitto and

Taylor. Your Honours, the relevant passage

commences a little past half-way down page 56 and

the relevant provision was one which provided

expressly that State taxation laws were not to

apply to the Commission. Your Honours will see, if

I could invite Your Honours to read the passage

commencing with:

Once that view is taken -

through to the end of that paragraph on page 57,
the relevant provision of the Act excluding the

State laws was section 36(1), and Your Honours will

Airports(4) 91 30/9/92

see, for example, at page 56, about point 7, His

Honour said:

The form of the provision is to exclude State

taxation by express words.

And Your Honours will see His Honour goes on to say

that:

The argument that under a legislative power of

the Commonwealth the operation of State laws

cannot be directly and expressly excluded has

been used without effect in a succession of

cases -

and, Your Honours, he rejects that proposition.

Your Honours, could I just pause for a moment

to say one thing. I said in answer to Your Honour

Justice Dawson yesterday that one really has to see

that the operation of the law which excludes the

State laws is one which is relevant to a head of power and, Your Honours, it would be sometimes

difficult to demonstrate that if the law, in which

it was to be found or by reference to which it was

to be construed, did not provide for some other

regulation of activities which might be related to

a head of power. Your Honours, there is perhaps a

qualification to that. The qualification could

arise at a number of circumstances, but if one were

to take, for example, State laws which provided,

for example, that tracked vehicles should not be

used on State-owned roads.

Now,it might well be the case that in respect of, for example, armed personnel carriers or other light armoured vehicles used for defence purposes,

that the Commonwealth would wish to prevent, in

effect, the application of that law in respect of

particular roads, and it might be, Your Honours,

that the form in which the legislation was effected

was one which simply made the State law inoperative	in respect to a particular area without saying
more.

And, Your Honours, it perhaps leaves open a

question which I do not think that the Court has

decided and that is that it may be necessary to go

outside the terminology only of the enactment to

see whether the law, which would prevent the State

law being operative, is one justified by the head

of power.

DAWSON J:	On the other hand, you cannot simply have a Commonwealth law excluding legislative activity on
the part of the State.

Airports(4) 92 30/9/92

MR JACKSON: Excluding legislative activity, Your Honour,

yes.

DAWSON J:  Even in relation to a particular subject-matter,

perhaps.

MR JACKSON:  Yes, Your Honour. May I just add a

qualification to that? If that is all that the law

does, it would probably be difficult to seek to

relate it to a head of power. But, it might yet -
Your Honour, I do not wish to argue the point for

the particular case, but to flag the possibility
that there may be circumstances in which, by

reference to other Commonwealth laws or by
reference to particular states of fact, particular

circumstances, that it would be possible to justify

a law which effectively prevented State legislation

having a particular effect.

If I could perhaps just give one example in

relation to that. If there were a military
training area in a particular part of the State,

and one had, if I could the light armoured vehicle
example again, it might be possible to justify a

law which prevented effectively State legislation

regulating or preventing the use of light armoured

vehicles on the State roads in that immediate area,

by reference to factual as distinct from

legislative circumstances.	I do not want to argue
that one can or one cannot.

DAWSON J: It is the line that Mr Justice Dixon was speaking

of in Wenn's case. He said that that case fell

clearly on one side of the line but the mere

attempt to prevent the State exercising its

concurrent legislative power would not be within

Commonwealth power.

MR JACKSON:  Yes. Your Honour, that really is because, one

would think, of a combination of two things in the

end: one would be the notion underlying the

existence of section 109 and also perhaps sections

107 and 106; but also the notion covering clause 5.

DAWSON J:  When the power is exercised, it might be

desirable to use less provocative words than "in

spite of", words such as "to the exclusion of".

MR JACKSON:  Your Honour, directness of approach may be

something - - -

SIR MAURICE:  Mamby-pamby, I think.

MR JACKSON: Directness of approach, one would think, if I

may say so, with respect, would be an indicium of

validity rather than - effectiveness to render

invalid rather than to do the opposite. One could

Airports(4) 93 30/9/92

understand their sensibilities, but they are

sensibilities rather than legal effects.

BRENNAN J:	Mr Jackson, the test must be whether the freedom from State law ordained by the Commonwealth law is
itself within Commonwealth power, is that not so?
MR JACKSON:	Your Honour, put that way, of course, yes.

BRENNAN J: There has to be the inconsistency, does there

not?

MR JACKSON:  I am sorry, Your Honour.

BRENNAN J: There has to be a section 109 inconsistency?

MR JACKSON:  No doubt, Your Honour, for some - I am sorry,

perhaps I am not with Your Honour on what

Your Honour is putting to me.

BRENNAN J:  It seems to me that one cannot simply legislate

to say that this law shall not apply unless there

is power to say that the regime governing the

federal activity will be one that is free from the

kind of restrictions which are imposed by the State

law.

MR JACKSON:  Yes, Your Honour, yes. Your Honour, I would

not debate that proposition. All I was seeking to

say before was that it is possible that if the

Court were to adopt a rule that was expressed in a

way that said, "If the law does no more than

prohibit the operation of a State law, it does not

attract section 109", that that might be, in

effect, closing a door which perhaps, with respect,

should be left open.

I have referred so far to what was said by

Chief Justice Dixon in Australian Coastal Shipping

Commission v O'Reilly.	May I take Your Honours
also to what was said by Justice Windeyer at

page 70. Your Honours will see at the bottom of

of the argument:

the page, about ten lines from the bottom,

that the Commission ..... could not validly be

given an immunity from State taxation.

And His Honour said, Your Honours will see:

If the section be robbed of all its context it

appears no doubt only as a restraint on State

power ..... But, in the first place, it is not

to be robbed of its context as part of the Act

which sets up the Commission and regulates its

functions.

Airports(4) 30/9/92

And His Honour goes on to elaborate upon that.

Your Honours, that, if I may say so, with

respect, is - the approach there rejected has a

degree of similarity to the approach which might

obtain if one were simply to take regulation 9(2)

and look to its operation as distinct from putting

it in the context of the regulations and,

Your Honours, one would be, in a sense, robbing it

of its context.

Your Honours, I will come back, if I may, in

just a moment to the context of the regulations,

but that is the proposition which we would seek to

advance in relation to that.

Your Honours, could I say finally, in relation

to this case one thing: if one goes back to what

was said by Chief Justice Dixon in a passage

earlier than that to which I had referred,

commencing at page 55, what one sees is a

discussion of the legislative power commencing on

the sixth line on the page. In relation to the the

legislative power under section 51(1), and of

course section 51(1) is at least part of the power

under which the Corporation operates, the

Corporations Act is made. What he is dealing with

there is the power to protect, and so on,

corporations created under the federal power and

the same would obtain, we would submit, in relation

to the ability to facilitate the exercise by

Commonwealth corporations of rights which they hold, including the property rights, in the

dredging site. The relevant passage, Your Honours,

is one to which Your Honours would have no doubt

been referred many times in the past, but it

commences on page 55 in the sixth line:

The legislative power seems ample not only -

et cetera. It goes through the whole of that page

to half-way down page 56. Your Honours, amongst

other things, I would refer Your Honours to the

concluding sentence of that passage, half-way down

page 56:

The various taxes of the six States -

et cetera. May I move back then - and I shall do

so for just a moment - to the terms of the Federal Airports Corporation regulations. Your Honours, I

do not know that I referred Your Honours to the

provisions dealing with the application for a grant

of the licence under those regulations. That is

dealt with by regulation 7(1), which is how one

applies, then regulation 7(2), what must be

specified in the application. Regulation 8(1)

Airports(4) 95 30/9/92

confers the power to grant the licences and

regulation 8(2) is a limitation on the power to

grant:

unless the Chief Executive Officer is

satisfied that the applicant, the applicant's

employees and the applicant's minor

contractors:

(a) will act in accordance with the

environmental standards -

and so on. I would refer also to paragraph (b).

The ambit of the licences must be specified - that

is regulation 7(3).	I would refer to 7(4) and
7(6).	One then comes to regulation 9 which

Your Honours have seen, and then there is the power

to give the directions in regulation 10, and then

the ability to cancel or suspend by regulation 11,
the bases of that being regulation 11(4).

Your Honours, might I move then to the topic

with which I was about to deal at the conclusion of
yesterday. That consists of the question whether
the provisions of the Environment Protection

(Impact of Proposals) Act 1974 give rise to an

inconsistency with the provisions of Part V of the

New South Wales Act.

Your Honours, it might be convenient, if I

might say so, with respect, to have a copy of the New South Wales Act to hand because I wish at one

point to take Your Honours to a comparison between
the two provisions, and what seems to be the
case - perhaps I should not say what seems to be

the case - one might infer that the draftsman of

certainly some parts of the New South Wales Act,

Part V, had had reference to the provisions of the

earlier Commonwealth enactment.

If one goes to the Commonwealth Act,

Your Honours will see its long title and that it

is:

An Act to make provision for Protection of the

Environment in relation to Projects and

Decisions of, or under the control of, the

Australian Government -

and, Your Honours, it is designed one might think
if one took that solely, to achieve a common

nationwide approach by the Commonwealth in its

activities.

If Your Honours note in section 3 the wide

ambit of the definition of the term "authority

Airports(4) 96 30/9/92

of Australia", and also the breadth of the

definition of the term "environment" in section 3.

Could I move then immediately to section 5,

and Your Honours will see that it sets out the

objects of the Act, and could I ask Your Honours to

note a couple of features concerning it. First of

all in relation to section 5(1) Your Honours will

see the use of the words in the opening part of

5 ( 1) -

to the greatest extent that is practicable -

and also two lines further down that matters are -

fully examined and taken into account in and

in relation to -

(b) the carrying out of works and other

projects -

and paragraph (a), of course -

(a) the formulation of proposals.

Your Honours will then see in the concluding three lines of section 5(1) the reference to the words -

either alone or in association with any other

government authority, body or person.

Now, those provisions to which I have just referred

and the earlier parts of section 5(1), including

its ambit, which is very wide, suggest that the Act

is to govern the situation so far as the

Commonwealth and its authorities are concerned on the occasions on which there is an involvement in an activity of the nature referred to in

section 5(1).

Towards the end of the submissions that I wish

to make concerning the operation of the Act I will

be seeking to say something concerning the fact

that the provisions of the Act have an operation in

a number of circumstances, and its effect will be

different, really quite different, if one is

considering on the one hand something such as the

granting of approval under the Customs (Prohibited

Export) Regulations to export, for example, rutile,

as was the case in Murphyores where the

Commonwealth permission is simply an export

permission, from the situation which obtains where
the Commonwealth approval is in relation to

carrying out the actual work of mining itself, for

example.

Airports(4) 97 30/9/92

But, Your Honours, may I, if I could use the expression again, flag the fact that I am coming to

that, but simply seek to indicate at this point

that section 51 is intended to have a wide

operation. It specifies the objects.

One sees also, if one goes to the State Act,

that it too specifies the objects which it is

intended to achieve, again in section 5, and

Your Honours will see that the subject-matter,

though differently expressed, is, broadly speaking,

similar and, Your Honours, one sees a number of

other objects, of course; for example the object

referred to in section 5(b):

to promote the sharing of the responsibility

for environmental planning between the

different levels of government in the State;

And one sees the greater specificity in

paragraph (a) .

Your Honours, could I move back to the

Environmental Protection (Impact of Proposals) Act

to section 6(1). The scheme which is adopted is to

empower the establishment of administrative

procedures for the purpose of achieving the object

of the Act and they are said to be procedures that

are consistent with relevant laws as affected by

regulations under this Act. Your Honours, may I

come, in a few moments, to the meaning of the term

"relevant laws". Our submission will be that it

relates to laws of the Commonwealth and laws of the

Territories.

Your Honours, if one then goes to

section 6(2), which sets out particular matters

which may be included in the approved procedures,

one sees a distinct similarity between the matters

that are referred to there and the procedures

contemplated by it and the equivalent provisions in

Part V of the State Act. Your Honours, if I could

go to Part V of the State Act and in particular to
section 112, Your Honours will see in

section 112(l)(a), the provision for the,

environmental impact statement. Now, Your Honours

will see, if one looks at the same time at

section 6(2) of the Commonwealth Act, that the

desirability of having such statements is a matter

which may be the subject of administrative

procedures.

Now, Your Honours, could I invite Your Honours

to look through the succeeding provisions of

section 6(2) which empowers the Governor-General in

making the approved procedures to deal with matters

such as, if one looks at (c), the content of the

Airports(4) 98 30/9/92

environmental impact statement and reports and,

Your Honours, if one looks at paragraph 6(2)(c), it

seems to cover much the same area as one would see

in section 115(b) of the State Act, which allows

there to be regulations providing for:

the preparation, contents, form and submission

of environmental impact statements;

And Your Honours will also see the various matters

listed in section 115 really seem to relate to the

same subject-matter, broadly speaking, as set out

in section 6(2) of the Commonwealth Act.

Your Honours, if I could pass over in the

Commonwealth Act the procedures set out in sections 7, 7(a), 7(b) and 7(c) for the making of

administrative procedures and move to section 8.

Your Honours, I am sorry, I should have said

one further thing in relation to section 6(2) and

that is that Your Honours will see that one of the

things that may be done, as appears from

section 6(2)(h), is that the approved procedures

may provide for exemptions from all or any of the
requirements of the procedures set out above.

Your Honours, if I could move then to

section 8, Your Honours will see that under
section 8 it is the minister's duty to:

give all such directions and do all such

things as ..... can be given or done by the

Minister -

to do two things. The first is to ensure:

that procedures for the time being approved

under this Act are given effect to -

et cetera.	And thenr under section 8(b), to
ensure -

that any final environmental impact statement

or public environment report ..... suggestions

or recommendations made ..... are taken into

account -

by, amongst other things -

authority of Australia -

That casts a duty, Your Honours, on the minister to

do those things.

Your Honours, if one turns to the expression

used there and also used in section 6, "relevant

Airports(4) 99 30/9/92

laws", we would submit that is a provision which

does not contemplate the laws of a State. What the

minister is doing, if I could say, first of all, is

to act consistently with the laws by which the

minister is bound, that is the laws of the

Commonwealth, and they may be, of course, not just

enactments themselves but also delegated

legislation.

Your Honours, it would seem a little odd, if

one looks at section 9, which is the provision

which, if at all, would seem to confer the power to

vary laws or to affect laws, to use the words of

the second line of section 8, it seems a provision

which, we would submit, is not very apt to be

referring to the operation of laws of the State

because Your Honours will see that all that is said

in section 9 is that:

the regulations may:

(a) make provision for or in relating to
requiring or permitting a prescribed authority

of Australia to take into account ..... matters

affecting the environment .....

(b) prescribe matters necessary or convenient

to be prescribed .....

and regulations so made have effect

notwithstanding any other law.

Your Honours, the only other power to make

regulations is the regulation-making power

contained in section 25 and we would submit that

the provisions are not, in terms, sufficiently

specific to enable there to be relevant laws, being State laws, affected in their operation in some way

by regulations made pursuant to the federal

enactment.

Your Honours, it is possible, no doubt, to

apply, as Commonwealth law, State laws by, for

example, section 64 and so on, or to apply them by,

in effect, analogy as laws of the Commonwealth.

But when one sees the expression "relevant laws" in

sections 6, 8 and 9, we would submit that prima

facie what is being looked at there are relevant

laws of the Commonwealth or of the polities or

bodies which are authorized by Commonwealth laws to

make delegated legislation.

Now, Your Honours, moving from section 9

through to section 11, one sees that there is, in a

manner very similar to that of section 119 of the

State Act, a power to conduct an inquiry. Could I ask Your Honours to, in effect, keep one finger on

Airports(4) 100 30/9/92

the State Act and if I could just indicate to

Your Honours the provisions of the State Act which seem to mirror the Commonwealth Act.

First, if one takes section 11(1) of the

Commonwealth Act, the equivalent provision is

section 119(1) and, in particular, paragraphs (b)

and (c) which use the same expression, "the

environmental aspects of". Your Honours,

section 11(2) is in terms very similar to those of

section 119(2); section 11(3) is represented by
section 119(3) and (4); section 11(3A) does not, I
think, have an analogue; section 11(4) is the

equivalent of section 119(6); section 11(5) is the

same as section 119(7); and section 11(6) is in
terms similar to those of section 119(5).

If I could move then to section 13. It is the equivalent of section 120(2) and, Your Honours, in

section 14 of the Commonwealth Act, section 14(1)

is the equivalent of section 120(1); section 14(2)

is mirrored by section 120(5); 14(3) by 120(6);

section 14(4) by 120(7); (5) by 120(8); (6) by

120(9); and section 14(7) by 120(11),

Your Honours, the only other provisions to

which I will refer are sections 15, 16 and 17,
which respectively are the same as sections 120(3),

120(4) and 120(10).

The Environment Protection (Impact of

Proposals) Act, Your Honours, which as is apparent

from the terms of section 5, has an application in

relation to a wide arrange of activities. What

that means is that the field which is covered by

that Act will, in a sense, vary depending on the

type of approval which is in question.

Might I, in that regard, refer Your Honours to

two examples.	The first is the one to which I
adverted earlier, and that is reflected in the

Court's decision in Murphyores Incorporated v The

Commonwealth, (1976) 136 CLR 1. Now, Your Honours,

in that case the Environment Protection (Impact of

Proposals) Act was attracted because of the need

for permission to be granted to export of the
minerals to be mined from Fraser Island, because of

the need for an exemption to be granted under the

Customs prohibitive export regulations and,

Your Honours, was was held in the case was that the

Commonwealth, in arriving at that decision, might

properly consider the effect on the environment of

the granting of it, by encouraging mining, and

might consider the report to the commission

established under the Commonwealth Act.

Airports(4) 101 30/9/92

But, Your Honours, because of the nature of

the Commonwealth power that was in issue, that did
not mean that the mining warden's inquiry in

relation to whether the lease should be granted,
might not itself consider the effect of mining on
the environment in Queensland. What, no doubt, a
Queensland Act might not have done, consistent with
section 109, was to provide for the mining warden

to determine whether Commonwealth approval should

be granted or not.

The second instance to which I refer is that

which is exemplified by the Court's decision in

Commercial Radio Coffs Harbour Limited v Fuller,

(1986) 161 CLR 47. Your Honours, in that case the

argument that was sought to be advanced was that

the granting of a licence to conduct a particular

type of station under the Broadcasting Act had the

effect that the State Environmental Planning and

Assessment Act was not applicable. Your Honours,

the submission appears at page 55 in the

penultimate paragraph on the page about point 8.

If Your Honours go to page 57 about half-way down

the page there is a reference to Airlines of NSW

Pty Ltd v New South Wales where the Court said:

The Court unanimously held that there was no

inconsistency between the two statutes since

each employed a licensing system to serve a

different end.

And that, in a sense, was the view taken by the

Court in that case. Your Honours will see what was

dealt with by the Court at page 56, the first new

paragraph on the page, going to the bottom of the

page - where what was said about five lines from

the bottom:

There is nothing in the Act -

meaning the Broadcasting Act -

which suggests that it confers an absolute

right or positive authority to broadcast so

that the grantee, because he has a licence, is

immune or exempt from compliance with State

laws.

Your Honours, the point I would seek to make about

that, which I am afraid I have done in a rather

roundabout way, is that if one is looking at the

operation of the Environmental Protection (Impact

of Proposals) Act, what one has to look at is its

operation in relation to a body such as the

Corporation where the powers being exercised by the

Corporation under its Act are ones to which the

Airports(4) 102 30/9/92

Environmental Protection (Impact of Proposals) Act

relates.

Your Honours, in that context, when one

compares those provisions in that context with the

provisions of the Environment Planning and

Protection Act, we would submit that the State Act is in conflict with it or inconsistent with it. I do not suggest that the case to which I have just

referred itself deals with the (Impact of

Proposals) Act; I am simply seeking to indicate

the type of case which may be different from a case

such as the present.

Your Honours, those are the submissions which

I wish to make. May I do two further things. One

is: could I hand to Your Honours a slightly

expanded note on one aspect of the matter dealt

with in our written submissions, and that is the

question of the circumstances in which

inconsistency arises from regulations.	I do not
want to address any oral submissions on that.	We
had thought we might have espied a note of

heterodox in our learned friend's written

submissions which we wished, if at all possible, to

dispose of.

Your Honours, the second thing is that the

submissions which we have made have been directed

of course to all the questions except the last

question reserved by Your Honours. As we

understand the position, that issue is one which

may or may not arise for further argument.

MASON CJ: Yes, Sir Maurice?

SIR MAURICE:  Your Honours, whether heterodox or not, my

learned friend's note really adds little by way of

contradiction or amplification of what I have said.

Can I just say a word or two about my learned

friend's arguments about determining authority, in

particular the Environmental Planning and

Assessment Act.

Your Honours, what section 6 of that Act is is

an indication of the legislative intention of the

ambit of operation of the Act. So that therefore

one reads all the provisions in light of that
expression of legislative intention. My learned
friend says, as I appreciate him, that section 6
operates to attract the provisions of this Act only
to applications under section 76 of the Act, namely

applications to subdivide land, to erect buildings

and so on.

So that if the Commonwealth or if the

Corporation wished to build a garage in Zetland, it

Airports(4) 103 SIR M. BYERS, QC 30/9/92

would have to apply and obtain the consent of the

local council. It might, however, so my friend

says, erect a graving dock in Rose Bay, or worse,

Clifton Gardens, without regard to any provision of

the local plan. As I appreciate him, Your Honours,

he says that section 39, which is the section which

authorizes State environmental planning policies,

is not susceptible of a meaning which would enable

a State environmental planning policy to apply to

anyone other than New South Wales corporations and

New South Wales individuals.

Now, Your Honours, there is nothing in the

section, whether by what is said - that is in

section 39 - or what is omitted to support such a

view. It contains a power to make an environmental

planning policy in relation to matters which are of

significance to the State; that is all. And then,

when the Governor gives effect to that under

subsection (4), it operates according to its terms.

Now, it is clear beyond dispute that a State

environmental planning policy was made, intended

and in terms applicable to this very undertaking.

Now, Your Honour, my learned friend, as he was

driven to, must say that that is misconceived - I

think was his words, I think in answer to

His Honour Mr Justice Deane. Now, Your Honours,

the reason why that was misconceived is, with great

respect to my learned friend, still obscure, and we

submit there was no reason in point of principle

and no reason in point of language why you should

give this Act such a skewed operation that it operates in the manner that my learned friend

suggests, namely section 76, that must apply, but

instruments under section 39 cannot apply.

Now, Your Honours, the only other

considerations which I heard my friend advance, to suggest that the Commonwealth authorities or other

were committed to organs of the State. Well, of	State authorities were not embraced by the legislation, was that the enforcement provisions	course, they would be committed to organs of the
State; one could hardly expect that an
environmental planning policy, an expression of
State law, should only apply to a Commonwealth
organization if, instead of the premier, just to
choose an example, being mentioned, the
Prime Minister was mentioned. One would not expect
the State regime to give to the offender the choice
of whether to abide by its provisions.

So we submit, Your Honours, that those

considerations really do not support the argument my learned friend advanced to say, that section 6 applies, admittedly, he says, it applies in

Airports(4) 104 SIR M. BYERS, QC 30/9/92

relation to section 76, but he denies it applies in

relation to section 39. Now, once you say

section 6 does apply, it must apply throughout, and

not only as a matter of text, but it is a matter of

subject-matter, because we are talking about a law

designed to protect the environment of New South

Wales.

McHUGH J: But the definition of "activity" in section 110

in Part V excludes any act, matter or thing for

which development consent under Part IV is required

or has been obtained.	So there are two separate
regimes, are there not?

SIR MAURICE:	Yes, Your Honour, but what we are concerned about is Part V.
McHUGH J:	The point I am making is that there is nothing

anomalous in the Act seeking to bind the

Commonwealth in relation to Part IV and not in

relation to Part V.

SIR MAURICE: There is something anomalous in the Act

seeking to bind the Commonwealth in relation to

decisions of local authority and leaving it free in

relation to matters of State concern. There is

something anomalous, we respectfully submit, in

such a view.

McHUGH J: Well, why is it then, in section 19, the

legislation draws the distinction between public

authorities and Commonwealth government departments

and authorities?

SIR MAURICE:  Your Honour, section 19 is not, as we would

respectfully submit, the key to undo the Act; all

it is concerned about is the setting up of an

advisory committee.

McHUGH J:	But does it not throw light on the meaning of public authorities, particularly when you look at
schedule 2, the advisory co-ordinating committee
that section 19 sets up, and you look at the
various public authorities, they are all State
authorities.
SIR MAURICE:	Yes, Your Honour, but of course they are,

because what one is concerned with is a State

regime. One does not find in the Commonwealth

(Impact of Proposals) Act a selection of State

authorities; one finds only a selection of

Commonwealth authorities. One find~ it for exactly

the same reasons as one finds State authorities in

this Environmental Planning Act.

McHUGH J: But, Sir Maurice, section 19(2):

Airports(4) 105 SIR M. BYERS, QC 30/9/92

The functions of the Committee shall be -

(a) to advise the Minister on means to ensure effective co-ordination of the activities

and programmes of public authorities.

SIR MAURICE:  Yes, Your Honour.

McHUGH J: You would hardly imagine that that section was

directed to Commonwealth authorities. Is the

Minister to ensure effective co-ordination of the

programmes of Commonwealth authorities?

SIR MAURICE: But, Your Honour, subsection (3) says:

The director shall have power to co-opt or invite representatives of other departments

and authorities, Commonwealth Government

departments and authorities.

McHUGH J:  And "private utility undertakings to

participate".

SIR MAURICE:  Yes. So if one is going to disjoin the power

to co-opt from the power to invite and say it is

only the invitation which is capable of extension

to Commonwealth authorities, then really

section 19(3) is not happily framed to meet that.

So he is given two powers, and one of them is

compulsive in relation to a Commonwealth authority,

and that is what I am saying to Your Honour, with

great respect.

McHUGH J:	A State Minister can co-opt; can compel?
SIR MAURICE:	If one is seeking the clue to the ambit of the

Act in section 19, I suppose one has got to have a

look at subsection (3), so therefore you have this

power to co-opt. I do not say that is a powerful

or perhaps significant matter because, with great

respect, we submit section 19 has got little - and

I say this with the greatest of respect - has

little to do with the question and that the

question really is:  how does one construe the

section 6; is it an expression of legislative

intention, as we would respectfully submit that it

is; and do you then read the entire Act, bearing in

mind that that is the expressed intention?

We submit that that is the proper approach and an approach which ties section 6 to the presence of

words, susceptible of embracing foreign State

bodies - if I may use the word to cover them all

is mistaken. That is why my friend says it,

because he says "person" is capable of embracing

the whole mass.

Airports(4) 106 SIR M. BYERS, QC 30/9/92

Your Honour, I do not think I can say anything

further about that. We submit that it is really

the effect of what my learned friend does is to turn protection environment on its head and say

that you can protect the environment in little

matters, but not in great matters, and that is

absurd.

Your Honours, may I just say this about the

(Impact of Proposals) Act and the Airports

Corporation Act. If the Airports Corporation Act

was intended to be immune from State law - which is
what my friend is really saying - why was there no

amendment to its provision in 1990 when the cognate

provisions were inserted into the Civil Aviation

Amendment Act?	We say that the answer to that is
quite clear.	What the authorities contemplated was

that there should be two positive orders for the

protection of the environment: one imposed by

federal law and another positive order imposed by

State law. There is no conflict between the two.

The only other thing I think I need say,

Your Honours, is about these regulations and really

what my learned friend sought to do - if I

understood him right, and I think I did - with the

words in regulation 3(2). That says:

A reference in these Regulations -

without restriction -

to a provision of a law of the State of New

South Wales is a reference to a law of that

State applied in and in relation to

Commonwealth places -

That is quite clear. So that means, if you give it

its ordinary meaning, wherever you see a reference

to a provision of law for the State of New South

Wales, you mean that law as applied in the

Commonwealth Places Act. Well then, one may ask,

where do you find references to a provision? And

the answer is: in regulation 9(2) and nowhere

else. And every reference to a provision, every

reference in regulation 9(2), is a reference to a

provision.

McHUGH J: Well no, it is in spite of a law or a provision

of a law of the State of New South Wales. And so

the argument that is put against you is that "law",

when first referred to, is referring to the State

law operating of its own right, and "a provision of

a law" means, by definition, a law applied by the

Application Act.

Airports(4) 107 SIR M. BYERS, QC 30/9/92

SIR MAURICE:  So that means where you see, if I can apply

that, where you see section so-and-so written, it

is a provision of the law. If you see "provision

of the law", that means law applied in accordance

with the (Application of Laws) Act. All I was

saying was if you go to 9(2) that is where you find

the reference to "provisions", and you do not find

reference to "provisions" anywhere else.

Then if one takes regulation 3(3), it goes on

and says:

In these Regulations, an example of a law, or

a provision of a law, of the State of New

South Wales is an example of the kind of law,

or provision of a law, that is referred to in

that subregulation or paragraph.

We would submit, Your Honour, and I do not know

what my learned friend says to this, that a

provision of the law referred to in
sub-regulation (3) is the same as a provision of

the law referred to in subregulation (2), and that

is its obvious meaning. Subregulation (2) is

without restriction, so that nowhere in the

regulations can you find a capacity to restrict it.

And really, if you look at subregulations (3) and

(4) it is apparent that their object and the object

of the sole regulation which contains references to

laws of the State is to exclude their operation.

Now, I have already said that and I do not want to

say it again. Your Honour, I do not think there is

anything else we would wish to say in reply.

I am sorry, Your Honour, there is one other

thing. My friend referred to the Interpretation

Act of New South Wales. If one looks to section 65 one sees that it says that the

legislature may indicate a law of the State of New

South Wales by the word "Act" alone.

Then you go on to section 66 and it says, "If

you want to cite an Act this is how you do

it" - short title, and so on. If you want to cite

a Commonwealth Act, specifically mention it. That

is how you do it, and so on. So really, section 66

is not relevant to the present provisions.

If you go to section 68, for example, you find

that -

(1) In any Act or instrument, a reference to
some other Act or instrument extends to the

other Act or instrument as in force for the

time being.

Airports(4) 108 SIR M. BYERS, QC 30/Q/92

I do not think I need read subsection (2).	And
then -

(3) Notwithstanding subsection (1), in any

Act -

(a) a reference to an Act that has been

repealed -

and so on. There is reference to an Act that has

been repealed. And then they say:

(4) In this section -

(a) a reference to an Act includes a reference

to -

(i) a Commonwealth Act; and

(ii) an Act or Ordinance of some other State

or Territory; and

(iii) a British Act -

and so on. So in the Interpretation Act itself you

find the word "Act" used as intended to apply to

Acts of other legislative bodies.

There is one other matter, if Your Honours

please. We would ask the Court to remit to the

Land and Environment Court so much of the matter as has been removed into this Court which would allow

the Council to apply for injunctive relief in that

court. My learned friends have informed us by

letter that they have made a number of necessary

arrangements, and the document handed up yesterday

indicates that there are a number of measures

presently taken on the way to execution of the

works.

MASON CJ:  How soon is it anticipated that steps would be

taken?

SIR MAURICE:  My friends have not informed us of that, if

Your Honour pleases, but they have informed us that

they have taken steps. We received a communication
saying, "The following steps have been taken", and
they referred to the promulgation of the matters

under the Acquisition of Lands Act, and so on.

MASON CJ:	But you are concerned with activities in the bay.
SIR MAURICE:	I am concerned with activities.
MASON CJ:	The question would be whether they

Airports(4) 109 SIR M. BYERS, QC 30/9/92

SIR MAURICE:  Yes, and I imagine, Your Honour, that we were

informed of the steps that have been taken with the

object of saying, "Well, if you don't apply for an

injunction, you can't say you didn't know.".	So
that is really the reason, perhaps, behind it.

Your Honours, that is all I think I can say about

it but we would ask Your Honours to make such an

order or perhaps Your Honour the Chief Justice.

MASON CJ:  Do you want to say anything about that,

Mr Jackson?

MR JACKSON:  Your Honours, it comes without notice so may I

just say these things: as we understand the

position, we would wish to start dredging on

28 October with major dredging being due to start

in mid-November. I am instructed it is very

difficult to obtain the vessels which have to carry

out the dredging and the down time for

interruptions to dredging once started is of the

order of $45,000 a day. We would oppose the matter

being remitted to the Land and Environment Court at

present. The case is, however, one in which there

is an element of urgency in very significant

financial terms. Your Honours, I am conscious of

the Court's commitments.

Your Honours, so far as any remitter is

concerned, it is a case where we would also wish to

submit that it would be an appropriate case if

there were to be a remitter to remit the matter to
the Federal Court, we being a Commonwealth

instrumentality. We would wish to put some

submissions about remitter more fully but I would

be happy to do that in writing if necessary.

MASON CJ:  I think it is sufficient if I say at the moment

that the Court will consider the questions which

have been raised in argument as a matter of

urgency.

MR JACKSON: If Your Honours please.

SIR MAURICE: If Your Honour pleases.

MASON CJ:  The Court will consider its decision in the matter.

AT 11.28 AM THE MATTER WAS ADJOURNED SINE DIE

Airports(4) 110 30/9/92