Council of the Municipality of Botany v Federal Airports Corporation

[1992] HCATrans 277

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4

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IN THE HIGH COURT OF AUSTRALIA •

Registry No Cl6 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

Airports(4) 1 29/9/92

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 SEPTEMBER 1992, AT 10.15 AM

Copyright in the High Court of Australia
SIR M. BYERS, QC: If the Court pleases, I appear with my

learned friend, MR R.A. BONNICI, for the Botany

Council. (instructed by Houston Dearn &

Associates)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friends, DR G.A. RUMBLE and

MR S.J. GAGELER, for the respondent. (instructed

by Blake Dawson Waldron)

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours, before my learned friend

commences, may I mention one matter which concern

some events which have occurred since the questions

were reserved by Your Honour the Chief Justice. It

concerns page 11 of the application book, and in

particular paragraph 18. We have agreed that I

should tell Your Honours that the matters set out

in paragraph 18 have occurred. Paragraph 18(a),

the acquisition of the fee simple, occurred on

27 August 1992. The construction site was

incorporated into the airport on 28 August 1992 and

the regulations commenced on 31 August 1992. Your Honours, so far as paragraph 19 is

concerned, the interests in the dredging site were

acquired on 27 August 1992. It may be convenient

if I were to hand to the Court copies of a document

which would add two additional paragraphs to the

questions reserved and the documents which support

those propositions if Your Honour the Chief Justice

was minded to add those matters to it. May I hand

to Your Honours copies of those documents.

MASON CJ: Yes.

MR JACKSON:  Your Honours will see reference to an error.

The nature of the error was simply that the first

declaration of vesting was in the Commonwealth

rather than the Corporation.

MASON CJ:  I am willing to add those to the statement of

facts in the questions reserved, Mr Jackson. Yes,

Sir Maurice.

SIR MAURICE:  Your Honours may be amused to notice that in

the second of the two notices the vesting of the

land in the Commonwealth was said to have been

occasioned by "a clerical error or obvious mistake

by describing the acquiring authority".	I assume
that is seriously meant.

Now, Your Honours, we are both, Mr Jackson and

I, conscious that there have been written

submissions and, pursuant to the order Your Honour

the Chief Justice made, they are comprehensive and,

Airports(4) 2 SIR M. BYERS, QC 29/9/92

naturally, I do not propose, so far as I can avoid

it, to repeat what I have said there, which

Your Honours will be relieved to hear.

I trust Your Honours will pardon me if I take

Your Honours to the legislation, in particular the

Environmental Planning and Assessment Act, and then

to the Federal Airports Corporation Act and,

perhaps, then to the regulations which have been

made to, as we would say, set aside State law, a

statement which the Corporation vehemently denies.

SIR MAURICE:  But could we go, Your Honours, to the

Environment Planning and Assessment Act first, and

could I just remind Your Honours of some of its

more relevant provisions.

From our point of view, if Your Honours start

off with a long title, Your Honours will see it is

it is "An Act to institute a system of

environmental planning and assessment for the State

of New South Wales." Then go to section 5 which,

if Your Honours have a print, is at the bottom of

page 6 and the top of page 7 and Your Honours will

find stated, as is the habit these days, the
objects of the Act, and they include the protection
of the environment, the proper management of

conservation, man-made resources and so on.

Then section 6 says that:

This Act binds the Crown, not only in

right of New South Wales but also, so far as

the legislative power of Parliament permits,

the Crown in all its other capacities.

So that would mean the Crown in right of the

various States and the Commonwealth.

At the moment I would come back to this, but

if Your Honours go back to page 5 at the top of the

page, Your Honours will see a definition of

"public authority" as meaning:

a public or local authority constituted by or

under any Act -

And so we would say that that means Act, whether

State Act, Act of another State or Commonwealth

Act.

BRENNAN J:  Does that accord with the New South Wales

Interpretation Act, Sir Maurice?

SIR MAURICE:  Yes, we submit it does, Your Honour. The New

South Wales Interpretation Act says you "may

describe a New South Wales statute by the word

Airports(4) SIR M. BYERS, QC 29/9/92

Act." That is the 1987 Act which differs in that

respect from the 1987 Act which puts in as a matter

of intention. But then, it is always subject, of course, to a contrary intention. So we would say

that where one has a positive statement in the

legislation, saying that the legislation is

intended and its subject-matter supports an

operation upon all instrumentalities of the Crown,

itn doing things in New South Wales which fall

within in the ambit of these provision. For

example, the Tourist Bureau of Queensland is, I

think, incorporated on a public statute, but I

speak subject to correction and maybe a number of

the other States and there are, of course, numerous

Commonwealth bodies incorporated by Commonwealth

law.

So the question would be whether this law of

the New South Wales Parliament was intended to
apply only to authorities which were incorporated

under New South Wales statutes or to authorities

incorporated under the statutes of other States,
and the Commonwealth, and the United Kingdom, for

that matter as well.

MASON CJ: But would you not expect something explicit if

there was an intention to include that which was

outside New South Wales, the Commonwealth, or

another State?

SIR MAURICE:  One, in our respectful submission, could get

little more explicit than section 6. When it says:

This Act binds the Crown ..... in all its

other capacities.

Now that, just reading it as a matter of English,

means the Crown in right of other States, the Crown

of the Commonwealth. They are saying that that is	in right of the United Kingdom, and Crown in right
what the Act is intended to do. You cannot have
anything more explicit than that.

DEANE J:  Why is it, because of something later in the

argument, that you focus on "public authority" as

distinct from "statutory body"?

SIR MAURICE: Well, Your Honour, it is because one of the

arguments is whether the Airports Corporation is a

determining authority within the meaning of this

Act. And that depends upon the meaning of

"determining authority" which picks up "public

authority".

DEANE J:  So you do not want it to be a statutory body

representing the Crown?

Airports(4) 4 SIR M. BYERS, QC 29/9/92

SIR MAURICE:  Only in the right of New South Wales. I say

even if it is incorporated under a law of another

jurisdiction, section 6 indicates an intention that

when a statutory body incorporated under the law of

another State is referred to, this Act is intended

to apply to it and that there is, therefore, a

contrary intention which displaces section 65 of

the New South Wales Interpretation Act of 1987.

MASON CJ: But that is limited to the Crown.

SIR MAURICE: Well, it is limited to the Crown, yes, but if

Your Honour goes to the definition of "public authority", it includes:

a statutory body representing the Crown -

for example.

McHUGH J: But Sir Maurice, is not the whole context of the

Act such that it is plain that "public authority"

is referring only to New South Wales authority, you

can get consent without - in some cases you can

make applications, can you not, provided you get

your consent of a public authority and the minister

can give directions to public authorities?

SIR MAURICE:  It is not explicit, it is not obvious; indeed

we say the reverse. It is clear that it was

intended to apply to authorities incorporated under

the law of another State by a statute. Now, for

example, when you look at the subject-matter and

you say the subject-matter of this is the

environment of New South Wales, that is what they

are talking about, they say that is what they want

to do, that is what they want to protect. And they

are protecting it by the statutory measures set out

in the Act and they have an express provision which

says, "Well this binds the Crown in all its rights"

and one of the things we are directing our

attention to, they say, are statutory bodies

representing the Crown, and that means statutory

bodies representing the Crown in other rights.

McHUGH J: Well, look at section 117, for example:

The Minister may direct a public authority or

person having functions under this Act ..... to

exercise those functions at or within such

times as are specified in the direction. Is that intended to allow a State minister to

direct a Commonwealth public authority?

SIR MAURICE:  Yes, Your Honour; there is nothing strange in

that. If, as is the admitted case here, what the

Airports Corporation proposes to do is to engage in

Airports(4) SIR M. BYERS, QC 29/9/92

an activity that admittedly falls within

section 112, because it is a determining authority;

it is carrying on an activity and that activity is

likely to significantly affect the environment;

they concede all that, they say "Yes, and we have

no intention of abiding by this provision." Now,

what I am saying so early, Your Honour, but perhaps

it is one of the problems one has got to face, of

course, is that when you have the Act dealing with

a subject-matter, which is the environment in New

South Wales, and you have an expressed provision

that is to bind the Crown in all its rights, then

it is a natural and indeed inevitable reading of

the statute that it should apply to the activities

of bodies incorporated under foreign law, law of

Victoria, and so on, who are engaged in New South

Wales in an activity that is likely to

significantly affect the environment.

So there is nothing surprising about it. It

would be surprising if there was a gap and the only

part of the environment that was intended to be

affected was that which statutory bodies

incorporated under the law of New South Wales might

harm. We would submit, Your Honours, that not only

does one have an express statutory indication in

section 6 but the subject-matter would support a

reading of that type.

DEANE J: Sir Maurice, I am missing something. Why is it

that some consideration down the tortuous path

causes you to focus on public or local authority

under an Act instead of statutory body representing

the Crown?

SIR MAURICE:  I was about to say that the Crown in that

definition includes the Crown in right of other

States.

DEANE J:  I follow that, but that way you have not the

problem of the definition of "Act" under the

Interpretation Act.

SIR MAURICE:  No, that is what I am endeavouring laboriously

to arrive at.

DEANE J:  I misunderstood, I thought you said that you did

not want it to be a statutory body representing the

Crown.

SIR MAURICE:  Your Honour, all I am saying is that if the

presence of the words "statutory body representing the Crown" indicates an express intention to apply

the Act to corporations formed under the law of

States other than New South Wales, formed under the law of the Commonwealth if they represent the

Crown, therefore, what that supports is the notion

Airports(4) 6 SIR M. BYERS, QC 29/9/92

that the word "Act" when used in this definition is

not confined to Acts made by New South Wales.

DEANE J:  I am still not quite clear. You do not say that

this is a statutory body representing the Crown in

right of the Commonwealth and, therefore, by reason
of the definition of "Crown", a public authority

for the purposes of the Act?

SIR MAURICE:	I do say that, and that is probably the simplest way to say it, but I do also want to say,
Your Honour, that even if it is not a statutory
body representing the Crown in the sense of that
phrase, it is caught because it is a statutory body
incorporated under a statute other than a statute of the New South Wales Parliament. That is what I
was perhaps very laboriously endeavouring to get
to, although I had not thought it would arrive
quite so soon.  However, Your Honour, that is all I
want to say at this stage about it. Obviously it
is a matter that agitates Your Honours, and I will
perhaps come to that.
Can I just take Your Honours to some of the other provisions. Would Your Honours go to
section 24. It says that:

an environmental planning instrument may be

made in accordance with this Part for the

purposes of achieving any of the objects of

this Act.

They are the objects no doubt set out in section 5.
Then the contents of them are set out in

section 26, but I do not think that particularly

matters at the moment. If Your Honours then would

go to section 37, it says:

(1) The Director may, after consultation

with such public authorities as he determines,

prepare a draft State environmental planning
policy with respect to such matters as are, in
the opinion of the Director, of significance

for environmental planning for the State, and

may submit it to the Minister.

(2) The Minister may, after consultation

with such Ministers as he determines, cause to

be prepared by the Director for submission to
the Minister a draft State environmental

planning policy with respect to any matter

specified -

Then we can skip 38, Your Honours. 39 says:

(1) The Minister may, on the submission

to him by the Director of a draft State

Airports(4) SIR M. BYERS, QC 29/9/92

environmental planning policy, recommend to

the Governor the making of a State

environmental planning policy -

(a) in accordance with that draft State

environmental planning policy submitted to the

Minister; or

(b) in accordance with that draft State

environmental planning policy with such

alterations as the Minister thinks fit -

Then under subsection (4):

The Governor may make a State environmental

planning policy in accordance with a

recommendation made under this section.

Now, Your Honours, one was made called "State

Environmental Planning Policy No. 31". What I

would propose to do, Your Honours, would be to hand the Sydney (Kingsford Smith) Airport, and it says:

up to Your Honours State Environmental Planning

The aims of this Policy are:

(a) to ensure that the environmental

assessment of any proposal to construct a

third runway at Sydney (Kingsford Smith)

Airport is carried out in accordance with

Part 5 of the Act;

Now, that Part 5 of the Act, in relation to which

the proceedings have been removed into this Court,

were instituted by the Council against the Airports

Authority. Then:

(b) to ensure that the environmental

assessment of certain related development is

also carried out in accordance with Part 5 of

the Act; and

(c) to co-ordinate and rationalise -

and then, if Your Honours go to 4, they say:

Except as provided by this clause, this Policy

applies to:

(a) land within the Municipality of Botany and

land within the Municipality of Rockdale as

shown edged heavy black on the map; and

(b) Botany Bay.

Airports(4) SIR M. BYERS, QC 29/9/92

And it is at Botany Bay that this proposed runway

is to be a three kilometre runway.

This Policy does not apply to:

(a) land shown hatched on the map; and

(b) land declared to be the Towra Point

Aquatic Reserve.

Now, I understand, Your Honours, although we have

been unable to find a copy of the map to hand to

Your Honours, that the land - no doubt my friend

will correct me - edged heavy black on the map is the land which is the subject of the construction

site and the dredging site.

TOOHEY J: Sir Maurice, I do not know whether it is of any

significance, but the definition of "public utility

undertaking" makes express reference to a

Commonwealth or State Act.

SIR MAURICE:  Yes, Your Honour.

TOOHEY J: Is that sort of language to be found anywhere

else in the documents?

SIR MAURICE:  No, I do not think so, Your Honour. Its

presence here, we would respectfully submit, is

consonant with the interpretation of the Act which

we have endeavoured to argue. They say:

(1) This Policy amends the environmental

planning instruments specified in

Schedule .....

(2) Interim Development Order -

and I can just leave that aside for a moment,

Your Honour -

(3) In the event of an inconsistency between

this Policy and another environmental planning

instrument (whether made before, on or

after ..... ) this Policy prevails to the extent

of the inconsistency -

which is familiar language. Then:

6. On land shown edged heavy black on the map,

development for the purpose of an airport may

be carried out without the necessity for

obtaining development consent.

What that does is remove development consent. That is to say the sort of consent which local

Airports(4) 9 SIR M. BYERS, QC 29/9/92

authorities are authorized to give, to remove that

sort of consent from the sites. It also says:

7. On land shown edged heavy black on the map,

development for the purpose of public utility

undertakings -

and that is the definition which Your Honour

Justice Toohey referred to -

may be carried out without the necessity for

obtaining development consent.

So that again means the consent of the Botany

Council, really, it being the relevant council.

8. On land to which this Policy applies,

development for the purpose of winning

extractive material may be carried out without

the necessity for obtaining development

consent -

again, that means the consent of the local

council -

if the extractive material is to be used for

the purposes of Sydney (Kingsford Smith)

Airport.

So what this planning policy in terms does is to

indicate an intention that Part V of the Act

applies to what the Corporation proposes to do in

relation to the construction of the runway and the

dredging.

TOOHEY J: Sir Maurice, could I just ask you this and I do

not want you to take us to the sections but is the

reference to development consent in paragraphs 5,

6, 7 and 8 a reference to something that is dealt

with in the Environmental Planning and Assessment Act itself?

SIR MAURICE:  Yes, Your Honour.

TOOHEY J: That is enough for my purposes.

SIR MAURICE:  If Your Honour pleases. I can give

Your Honours, section 54, section 70 deal with

local plans and Your Honours will find in the

definitions section a definition of "development"

which is at page 3, "development application",

"development area" and "development consent"; also

"development standard", so far as that is relevant.

TOOHEY J: ·Thank you.

Airports(4) 10 SIR M. BYERS, QC 29/9/92

SIR MAURICE:  So those provisions are provisions which

committed to local councils the duty of consenting

in accordance with this Act to building

applications, change of use and that sort of thing.

I do not want to take Your Honours to that sort of

provision, having given Your Honours the reference.

The other type of plan, Your Honours, is a

regional plan, which is at section 51, which

enables the minister to:

make a regional environmental plan -

and section 51(2) says -

The Minister may not make a regional

environmental plan except with respect to such

matters as are, in his opinion, of
significance for environmental planning for
the region or part of the region to which that

regional environmental plan applies.

So you would have State-wide, region-wide and then

local plans, and the local plans Your Honours will

remember. They are in section 54 which provides

for the local authorities to prepare draft
environmental plans, section 70 which provides for

the making of a local environmental plan, and

section 76 which provides for the restriction on

development. So, Your Honours, that is the

approach: policy, State planning policy, regional
planning policy, local plan. That was to cover all

matters affecting the environment in New South

Wales.

Your Honours, could we then come to

section 110. The definition of "activity" - it is

at page 69 of the pamphlet print, if Your Honours have the pamphlet print - is a building, carrying

out of a work, the use of a land or a building -

carrying out of a work in, on, over or under land.

Then "determining authority" - that is over the

page, Your Honours:

means a Minister or public authority -

which Your Honours will remember we have had some

debate about -

and, in relation to any activity, means that

Minister or public authority by or on whose behalf the activity is or is to be carried out or whose approval to the carrying out of the

activity is required -

We say of course that that definition would apply

to the Federal Airports Corporation. Section 111

Airports(4) 11 SIR M. BYERS, QC 29/9/92

says you have got to consider the environmental

effect of the activity that you propose to do.

Then section 112 says that a determining authority shall not carry out an activity being an activity

that is likely to significantly affect the

environment unless:

(a) the determining authority has obtained,

examined and considered an environmental

impact statement in respect of that activity -

(i) prepared in the prescribed form and

manner by or on behalf of the proponent -

Of course, there is a definition of "proponent" on the top of page 70 in section 110, which means the

person proposing to carry out the activity.

(a) the determining authority has obtained,

examined and considered an environmental

impact statement in respect of that activity -

(i) prepared in the prescribed form and

manner by or on behalf of the proponent -

an environmental impact statement -

(ii) except where the proponent is the
determining authority, submitted to the

determining authority in the prescribed

manner;

(b) notice referred to in section 113(1) has

been duly given -

by the determining authority -

the period specified in the notice has expired

and the determining authority has examined and

considered any representations made to it -

or any other determining authority -

in accordance with section 113(2);

(c) the determining authority has complied

with section 113(3) -

I do not think I need to worry about (d).

Now, Your Honours, the facts establish that,

in paragraphs 20 and 21':

The dredging activity is an activity as

defined in Part V of the Environmental

Planning and Assessment Act and is likely to

significantly affect the environment.

Airports(4) 12 SIR M. BYERS, QC 29/9/92

And:

The FAC has not obtained an environmental

impact statement in relation to the activity

of dredging pursuant to section 112 ..... and

has not complied with the provisions of

Part v ..... in respect of the dredging

activity.

So what they propose to do falls clearly

within the statute and within the State planning

policy, which indicates an intention to imply the

statute to this very activity. That is all I want

to say about the Environmental Planning and

Assessment Act for the moment.

Can I just now say a word or two,

Your Honours, about the Federal Airports

Corporation Act. That has been amended on a number

of occasions but if Your Honours have -

DEANE J: Sir Maurice, is there anything in the

Environmental Act that expressly says if they do not get this statement they cannot go ahead, or is

that left to be implied?

SIR MAURICE:  I think, Your Honour, that is left to be

implied, but can I check that? Your Honour, I am

told - section 23 enables a person to apply to a

court. Your Honour sees that:

Any person may bring proceedings in the

Court -

that is the Land and Environment Court -

for an order to remedy or restrain a breach of

this Act, whether or not any right of that

person has been or may be infringed by or as a

consequence of that breach.

And then, section 125 provides for penalties.

TOOHEY J: Sir Maurice, since you have been taken back to

the Act, can I just ask you this: it is apparent

from the definition of "development" and also the

definition of "activity" that a course of conduct

could fall within both, in fact the two definitions

begin in identical terms. Are we concerned with

the developmental side of what has been done?

SIR MAURICE:  No, Your Honour. Your Honours are concerned

with a proposed dredging and the proposed

construction of the third runway, that is all.

TOOHEY J: But only to the extent that that constitutes an

activity?

Airports(4) 13 SIR M. BYERS, QC 29/9/92

SIR MAURICE:	Yes, Your Honour.
TOOHEY J:	Not to the extent that it constitutes a

development?

SIR MAURICE:  No, Your Honour, because, in the sense it

constitutes a development to which section 70 would apply, then the State planning policy seems to have

removed it from section 70. Your Honour will

remember that section 70 says that the local

councils - or beginning with section 54: "The local

council are to prepare local environmental plans"

and then section 70 and 76, as Mr Jackson reminds

me, I think I do mean section 76, because

section 70 only deals with the making of the

environmental - if Your Honour goes to section 76,

which I mention in passing, it says:

where an environmental planning instrument

provides that development specified therein

may be carried out without the

necessity ..... being obtained therefor, a

person shall not carry out that development on

land to which that provision applies except in

accordance with the provisions of that

instrument.

where an environmental planning instrument

provides that development specified therein

may not be carried out except with consent

under this Act being obtained therefor, a

person shall not carry out that development on

land to which that provision applies unless -

(a)	that consent has been obtained ..... and
(b)	the development is carried out in

accordance with the provisions of any

conditions -

And then, Your Honour will see that section 70

deals with the making of development applications.

What this State planning order 31 purports to do is

to remove the necessity for development consent in

relation to the land which is edged black on the

plan, which, as we understand it, is the

construction site and the dredging site. So that

meant that the consent of the Botany Council was

dispensed with if this was a valid provision,

otherwise the Act would apply.

TOOHEY J:  I am sorry, I take you not to be saying, though,

that the instrument in its terms exempts compliance

with Part V of the Act?

SIR MAURICE:  No, Your Honour, it does not; it says you must comply with Part V, as I understand it. It says,

Airports(4) 14 SIR M. BYERS, QC 29/9/92

if one is to treat the statement of the object as a

statement of what the draftsman had in mind, which

I suppose is not a bad approach, it means that an

environmental assessment of any proposal to

construct a third runway is carried out in

accordance with Part V.

TOOHEY J: But it seems to remove the environmental control

from the local authority to a determining authority

under Part V.

SIR MAURICE: That is so, Your Honour.

TOOHEY J: Yes, thank you.

DEANE J:  And if the FAC be not a determining authority, is

there one relevant to this case?

SIR MAURICE:  No, Your Honour, I do not think so. I think I

must answer that no. One way of looking at it

might be to say, but I do not think it would be a -

it is certainly not a matter that has been raised

in the matter before Your Honours, is to say that

those who actually do the work are "determining

authorities". But this case has been instituted on

the basis that the Corporation which is responsible

is the "determining authority".

DEANE J: Can I finally ask you this: if you be right and

Part V applies on the basis of the FAC as the

"determining authority", what is the effect of

that, in that obviously it is required to get an

environmental statement, but can anyone stop it

doing what it wants to do?

SIR MAURICE:  Yes, Your Honour. One can take an

application, as this application was, before the

Land and Environment Court, to require the

"determining authority" - the Corporation - to

obtain the consent - - -

DEANE J:	To obtain the consent?
SIR MAURICE:	I am sorry, to carry out the procedures in

accordance with Part V.

DEANE J:  Yes, I follow that, but having gone through the

environmental statement and listened to people, is

there anything that could stop the FAC from doing

what it wants to do?

SIR MAURICE:  Yes, Your Honour. We could apply to the

Court, as we have, to -

DEANE J:  I think I am being obscure, Sir Maurice. Assume

that the FAC goes through the whole of this

procedure and gets its environmental statement and

Airports(4) 15 SIR M. BYERS, QC 29/9/92

listens to the Minister and listens to everybody

else. At the end of the day is there anyone or

anything that can stop it from going ahead?

SIR MAURICE:  If it gets no consent, the answer is yes.

DEANE J: If it gets no consent from whom?

SIR MAURICE:  From the Minister.

DEANE J: That is what I am trying to find out. Is the

effect of this, as you would see it, that the FAC

is prohibited from extending the airport in the way

it wants to unless somebody else consents to it

doing it?

SIR MAURICE:  Yes, Your Honour.

DEANE J: That answers my query.

BRENNAN J: Sir Maurice, can I just ask you one more

question before you leave the Act? Is it within

the power of the Parliament of New South Wales to

create an offence capable of being committed by a

statutory body representing the Crown in right of

the Commonwealth?

SIR MAURICE: Well, Your Honour, yes, I would say it is

that. It could not, as I understand what has been

said in this Court, impose any authority on the

Crown.

However, if it is just a statutory body, so

that you say it is a statutory body that is

representing the Crown because, one assumes, of the

sort of shield of the Crown notion, then there is,

in our respectful submission, no reason why it

cannot be subject to penalty, because it is a

statutory body that is subject to penalty, and no

reason of power. That is the way I would answer

Your Honour's question.

DEANE J: Sir Maurice, can I trouble you, just one final

matter, what is the section that says, having gone

through all the procedures, it cannot do it without

the consent of the minister?

SIR MAURICE:  Yes, I was fearful that Your Honour would be

coming to that because I must confess, Your Honour, it is somewhat obscure, but we would when one looks

to section 113 - sorry, I should go back to 112. 112(1) says you shall not carry out the activity

unless the determining authority has obtained an

environmental impact statement in prescribed form,

and also that notice in - as referred to in section

113(1) that is, to -

Airports(4) 16 SIR M. BYERS, QC 29/9/92

give notice in the prescribed form and manner

that a copy of the environmental impact

statement ..... may be inspected -

and the determining authority has complied with

113(3):

shall, as soon as practicable and not less

than 21 days before -

carrying out or granting an approval in relation to

an activity furnish a copy - well, that does not

assist me really, and: Except where the Minister has directed that an

inquiry be held in accordance with

section 119, the Director may examine ..... an

environmental impact statement.

I do not think that assists me either.	May I come
back to this later?

BRENNAN J: Yes.

SIR MAURICE: Because, the only thing I can think of, quite

honestly, Your Honour, is section 123 which is an

order of the court to restrain a breach of the act.

BRENNAN J: Except, all that would require, unless there be

some section, would be that the FAC comply with the

procedures.

SIR MAURICE:	Yes.
DEANE J:	I mean, no doubt for your client's long-term

desires, some means of stopping it would be

something to be sought for the purposes of this

case and inconsistency, I would think, if there is

a means of prohibiting, it makes your case very,

very difficult at the outset.

SIR MAURICE:  I am indebted to Your Honour for that

expression of view.	I will do what I can to cope
with it.

DEANE J: Perhaps I should not have put it so strongly, but

I did not mean to lead you into thinking that I

thought you needed to find a consent for the

purposes of your case. I was seeing it as

something possibly against your overall case.

SIR MAURICE:  Yes. I am indebted to Your Honour for saying

that to me. I do not want to go to section 125

again, but those are the only sections which, as

presently advised, I can refer Your Honours to.

Airports(4) 17 SIR M. BYERS, QC 29/9/92

Your Honours, I have said that I would just

like to take Your Honours, if I may, to some of the

provisions of the Federal Airports Corporation Act

and there there are a number of amendments but the

main Acts are No 4 of 1986 and No 26 of 1990.

Unless my friend wishes me to refer to others,

those are the only Acts that I propose to refer to.

I am told there is one up-to-date print.

DEANE J:  We have as at 31 May 1992, I think.

SIR MAURICE:  Yes, Your Honour. We were unable to acquire

it. There is an amendment, my learned friend

Mr Jackson tells me, Act No 71 of 1992, but he says

that does not seem to affect the issue greatly.

Your Honours, can I just refer to some of the provisions of this Act and of the amendments. When

I say the amendments - because the amendments of

1990 are, in our respectful submission, when

considered with the amendments made to Act No 25 of

1990, that is the Civil Aviation Act, which was a

cognate measure, they throw some light on what was

intended in 1990 in relation to the Federal

Airports Corporation.

Your Honour, section 5 says it is

incorporated, which is not very illuminating.
Section 6 says that:

6.      The functions of the Corporate are -

(a) to operate Federal airports and

participate in the operation of jointly used

areas in Australia.

Now, I think we can forget the "jointly used

areas", and I do not propose to worry about

paragraphs (b) and (c). Then section 7(1) says:

The Corporation may perform the functions -

referred to in 6 -

to the extent only that they are not in excess

of the functions that may be conferred on it
by virtue of any of the legislative powers of

the Parliament, and, in particular, may

perform its functions for purposes in relation

to:

(a) trade and commerce with other countries,

or among the States;

(b) a Territory;

(c) external affairs; and

Airports(4) 18 SIR M. BYERS, QC 29/9/92

(d) a Commonwealth place within the meaning of

the Commonwealth Places (Application of Laws)

Act 1970.

Now, Your Honour, the last - (d) - is somewhat

Delphic, but one would assume that the airport is, for reasons which I will take Your Honours to in a

moment, a Commonwealth place and, perhaps - so that

within it the legal regime is that of State law as
applied by the (Application of Laws) Act and, of

course, the application of the Airports Corporation

itself.

Then subsection (2) says it is to:

endeavour to perform its functions in a manner

that:

(a) is in accordance with the policies of the

Commonwealth Government -

and so on.

Your Honours, can I go to section 8. I think

my friend may want to refer to section 7(2) but it

had nothing, we submit, that throws any light on

the present question. Section 8 says:

The functions of the Corporation referred to

in paragraph 6(a) -

that is to operate federal airports -

extend to -

(a) reviewing the use and capacity of existing

Federal airports, determining the necessity or
desirability of extending or otherwise

altering Federal airports and carrying out

necessary or desirable extensions to, or

alterations of, Federal airports;

(b) carrying on commercial activities at, or

in relation to, Federal airports (including

carrying on such activities in co-operation,

or as joint ventures, with other persons;

(c) providing, or arranging for the provision

of, facilities and services .....

(d) disposing of, or otherwise dealing with,

land which was previously a Federal

airport ..... and

(e) co-operating with, and providing

assistance to, the Department ..... in relation

Airports(4) 19 SIR M. BYERS, QC 29/9/92

to matters dealt with by the Department in

respect of Federal airports; and

(f) co-operating with, and providing

assistance to, the Civil Aviation Authority in

relation ..... to Federal airports.

Then, they say -

(2) The functions of the Corporation do not

extend to -

(a) Air Traffic Control .....

(b) matters relating to the control, by

persons engaged in Air Traffic Control, of

vehicles on manoeuvring areas at Federal

airports -

Could Your Honours turn over to subsection (3) and

Your Honours will see that the last definition in

subsection (3) is of a "manoeuvring area" which:

means that part of a Federal airport to be
used for the take-off and landing of aircraft

and for the movement of aircraft associated with take-off and landing excluding aprons.

"Apron" is defined as meaning:

that part of a Federal airport to be

used ..... enabling passengers to board, or

disembark ..... for loading cargo ..... or for

refuelling -

So it had nothing to do with:

(a) Air Traffic Control .....

(b) matters relating to the control, by

persons engaged in Air Traffic Control, of

vehicles on manoeuvring areas at Federal

airports;

(c) the provision of non-visual navigational

aids, communication services, or

meteorological services and facilities,

relating to aircraft;

(d) Flight Service and facilities associated

with Flight Service;

(e) the provision of rescue, fire fighting or

search and rescue services relating to

aircraft .....

Airports(4) 20 SIR M. BYERS, QC 29/9/92

(f) the investigation of the need for

additional Federal airports and the

desirability of replacing existing Federal

airports with new Federal airports; and

(g) the preparation of plans for, and the

establishment of, airports that are to be

Federal airports.

So what is left is the function of a manager of the

realty. Then it is to carry on that function

divorced from bringing the planes in and sending

them off and so on.	It is the actual management of
the realty that it is to exercise its powers.	Then
section 9 says it has:

power to do all things necessary or convenient

to be done -

One would think it would have that in any event but

there it is.	Then there are a number of specific
things:

to enter into contracts ..... grant a person a

lease -

and so on which I do not propose to read to

Your Honours and they do not throw any light on it.

If Your Honours now would go to section 12A.

That was introduced by Act No 26 of 1990 and it

says:

There is to be a Board of the Corporation.

And 12B says:

(1) The purposes of the Board are:

(a) to decide the objectives, strategies and

policies to be followed by the Corporation;

and

(b) to ensure that, in performing its

functions, the Corporation has proper regard

to the matters referred to in subsection 7(2). ·

Those are the matters which it must carry on, like

being a good neighbour. I think Your Honours will

find that somewhere in (f):

ensures that the Corporation and community

serviced by Federal airports are good

neighbours.

Airports(4) 21 SIR M. BYERS, QC 29/9/92

I am not quite sure what that amounts to but it is

certainly not done here.	But that is the sort of
thing.

There are a number of amendments made which Your Honours have in the May reprint, which we were

unable to obtain, which relate to the board and its

functions. They indicate, in our respectful

submission, that the board has a significant area

of independence from the government. That was the

purpose of instituting a board both in this Act and

in the Civil Aviation Authority Act, which was done

by an Act No 25 of 1990.

Your Honours, can I now go to the realty.

Your Honours will find that in section 23:

The Minister ..... shall, by notice in

writing ..... fix a day ..... as the day on which

the Schedule airports are to become Federal

airports. If Your Honours turn to the back of the Act,

Your Honours will find schedule airports which

begin with Kingsford Smith Airport, thyen they go

to Bankstone and end up with Launceston. So they

are really the main airports in Australia, I should

think. Section 24 says:

If, immediately before the transfer day, any

land forming part of a Schedule airport is not

owned by the Commonwealth, that

land ..... shall, for the purposes of this Act,

be taken not to form part of that Schedule

airport on the transfer day.

They can enter into arrangements for management.

For new federal airports, the minister can decide

on that and transfer those as well.	Then
section 26, which my learned friends rely on:

The Minister, on the recommendation of the

Corporation, may ..... declare that ..... a	place
owned by the Commonwealth or by the

Corporation and specified in the notice shall

form part of a Federal airport specified in

the notice and, where the Minister makes such

a declaration, the declaration has effect

accordingly.

Of course, what that section has in mind, no doubt,

is in relation to contiguous areas, but it could

not mean that you would place Timbuctoo as part of

Kingsford Smith Airport. No doubt what needs to be

done about it is to read it in conjunction with

sections 24, 25 and 26.

Airports(4) 22 SIR M. BYERS, QC 29/9/92

Your Honours, then there are provisions about

how a place ceases to be a development - a federal

airport.	Can I take Your Honours, however, to
section 28:

where, by virtue of this Part, land owned by

the Commonwealth becomes a Federal airport or

part of a Federal airport, that land

(including all rights, title and interests in

that land) is vested in the Corporation

without any conveyance, transfer or

assignment.

(2) Where a notice containing a declaration

under subsection 25(1) or 26(1) states that

because of the declaration is not to -

land owned by the Commonwealth constituting or

included in a place or places becoming a

It does not ..... That is hardly surprising

perhaps. Subsection (3) says:

if land that is owned by the Commonwealth

becomes a Federal airport development

site ..... the land is vested in the Corporation

without any conveyance -

Then if Your Honours go to section 29:

While a place owned by the Corporation is a

Federal airport or part of a Federal airport, that place is held by the Corporation for and

on behalf of the Commonwealth.

I would imagine, Your Honours, that what that is

directed to is, amongst other things, to ensure

that it remains a Commonwealth place, because what
this Act does is work a statutory transfer really

on the land. So on one view of that, you would say	once the Commonwealth has disposed of the land, the
provisions of section 52 cease to be relevant. It
is only a sort of historical statement, but whether
it is effective or not is a question perhaps that
does not immediately arise.

Can I take Your Honours now to section 37:

The Board shall, as soon as practicable after

the commencement of the Act, develop a

corporate plan.

And then section 38 says that:

The Board shall, as soon as practicable after

developing the Corporate plan, give the

Minister a copy of that plan.

Airports(4) 23 SIR M. BYERS, QC 29/9/92

Then section 39 says:

The Board, when setting -

the corporations -

financial targets to be included in a

financial plan under paragraph 38(3)(b), shall

consider the following matters:

And it sets out the various matters that it is to

consider. A: Minister may vary financial plan and

the Board is to notify the Minister of significant

events that effect the achievement of its

objectives. And then there is a power to give

directions and reimbursements of the cost in

section 42 of complying with the rest. If you give

a direction you have got to pay for it; that is the

notion.

Now then section 43 provides for the capital

structure; that is land, building, within the

airport; they are to determine the value of the

assets under 2(a) and then the rest of subsection

(2) really works out what is the capital of the

airport for the purpose of a dividend to the

Commonwealth. And Your Honours will see under

section 44, that:

The capital of the Corporation at any time is

the sum of -

(a) the values that have been determined

under -

section 43.

less the sum of -

(d) amounts that have been determined under -

other sections as, in effect, right-offs or

deductions.

Then if Your Honours go to section 46 you will see

that the board:

shall, before the expiration of 4 months after

the end of each financial year, by notice in

writing given to the Minister, recommend that

the Corporation -

(a) pay to the Commonwealth ..... a dividend of

an amount specified in the notice; or

(b) not pay a dividend -

Airports(4) 24 SIR M. BYERS, QC 29/9/92

So, the result of that is, the realty and the buildings and so on go into the Corporation; there

is a board, the Commonwealth right or interest is a

dividend interest, plus powers of direction.

Now, that is the plan of this, and there are

powers about borrowing in section 47 and 48, which

I would not propose to read to Your Honours - my

learned friend can always to it himself. And then

there are provisions about audit in section 54B and

section 54C.

Now, Your Honours, in section 73, there is a

provision as to how by-laws operate inside the

airport. So it says:

By-laws in force under paragraph 72(1)(k) are not intended to exclude or limit the operation of any provision of a law of a State or

Territory that deals with the use of vehicles

and is capable of operating concurrently with

those by-laws.

Now, it is not quite clear to me, I must confess

Your Honour, whether they are referring to areas within the airport, which one would think they

must, and that that is therefore a statutory

amendment of the (Application of Laws) Act. And

then by-laws in force under 72(l)(p), in respect of

a federal airport, have effect in relation to the

airport site to the exclusion of any provisions of

a law of a State. Now Your Honour, 72(l)(p) is on

page 53, it is liquor sale, supply -

So they have unrestricted liquor rights. And by-

laws in force under paragraph 72(l)(q) have effect

to the exclusion of a provision of a law of a State

or Territory relating to gambling activities, so

liquor and gambling, they say. Otherwise a State

regime is picked up and applied by the Commonwealth

(Application of Laws) Act, and though the

assumption behind this Act, underlying this Act, is

that the Commonwealth Places (Application of Laws)

Act applies its laws or operates in relation to the

legal regime within the airport.

There was one matter I wished to refer

Your Honours to, if I may. I have mentioned that

the Civil Aviation Act was amended by Act No 25 of

1990 and Your Honours will have observed, it is the

case, that amendments made to the Corporations Act

were made by Act No 26 of 1990. The point of me

mentioning the Civil Aviation Amendment Act is that

that Act of 1990 introduced provisions into the

Civil Aviation Act, analogous to those made by the

Airports Corporation Amendment Act relating to the

Airports(4) 25 SIR M. BYERS, QC 29/9/92

Board and an increase in the power and corporate
plans and the like, into the Civil Aviation

Authority staff and increased authority.

Your Honours, I do not want to take

Your Honours through all that but Your Honours will

find also - and this is the section I wanted to

Civil Aviation

mention - that by Section 5 of the inserted into it a provision which says:

Subject to ..... (3), a law of a State or

Territory, being a law to which this section applies, does.not apply in relation to:

(a) the Authority; or

(b)	the property or transactions of the Authority; or
(c)	any act or thing done by or on behalf of

the Authority.

Then subsection (2) says:

This section applies to a law to the extent

that the law relates to:

(a)	the use or proposed use of land or premises; or
(b)	the environmental consequences of the use of land or premises.

And then they say:

Subsection (1) -

that is, the immunity provision -

does not apply in relation to any property,

transaction, act or thing that is wholly

unconnected with the use of land by the

Authority for the purpose of performing any of the Authority's functions referred to in

paragraphs 9 (l)(b), (c), (d) and (e) -

of the Act. If Your Honours go to those, they are:

(b) is to provide air route and airway facility;

(c) is to provide air traffic control services; (d)
is to provide~ they are section 9 - to provide

rescue and fire-fighting services; (e) is to

provide a search and rescue service. When one

looks to the statutory scheme, one had excluded

from the ambit of the control of the Federal

Airports Corporation the activities in relation to

air traffic control, providing air route and airway

facilities and the like.	From the beginning they
were excluded.

Airports(4) 26 SIR M. BYERS, QC 29/9/92

Then in 1988 the Civil Aviation Authority Act

No 63 of 1988 created a Civil Aviation Authority

and gave it those specific functions. Then two

Acts were amended in 1990 so as to create in the

application to each of a board in parallel form.

In the Civil Aviation Amendment Act there was a provision that it - the Authority - was to be

immune from State laws, which nowhere is repeated

in the Corporations Act.

Now, Your Honour, that is the statutory

scheme, we submit. So you have a clear and express

statement, excluding State law in one; you have
silence in the other. Your Honours, the first
argument that we have mentioned in our written

submissions is an argument as to power, and that is to say whether one can look to section 8(1) and say

that it which is an incidental power, really, a

subsidiary power, enforceable in the long run by a

compulsive process, namely the Land Acquisition

Act, once it exceeds the boundaries of the airport,

whether you can give that a wide meaning, and we

would submit not.

Your Honours, what the Corporation proposes to

do here is to build a runway three kilometres long

into Botany Bay and then it proposes to dredge from

Botany Bay itself sand to be used as fill for the

runway to depths varying from 10 metres to 22.5

metres. So that is down to 70 feet. So it is a

massive undertaking.

BRENNAN J:  Why is it that 8(1) is not simply a dictionary

for the function specified in 6(a)?

SIR MAURICE:  I am not quite sure what that involves,

Your Honour, so Your Honour will excuse a

pardonable hesitation before I assent to what

Your Honour rather beguilingly says to me.

BRENNAN J:  I understand you to be placing some reliance on

the notion that 8(1) is, as it were, ancillary to,

subordinate to, the leading function which is

specified in 6(a).

SIR MAURICE:  Yes, Your Honour.

BRENNAN J: Looking at 8(1), there is nothing in the

introductory words which suggest that there is any

subordination but rather that it is providing a

dictionary which allows you to understand what 6(a)
extends to, because it is not here conferring a

power but merely defining a function.

SIR MAURICE: Well, that is the same thing, Your Honour. It

is like giving an object - when one is thinking

about what function means, it is like an object to

Airports(4) 27 SIR M. BYERS, QC 29/9/92

the company, that is all. This is one of your

objects so you have got power to do it. So you can

therefore perform acts which would extend or alter

a federal airport.

What I am saying is, when one thinks of the

reach of that, one has to bear in mind that it is a

provision which enables the Corporation to

interfere with the rights of other people by way of

compulsive acquisition. Of course they get

compensation but that is still what it enables one

to do.

So that you are not talking about a trading

power, as - the cases that my learned friend

referred to - for example, Railway Company. And I

will just refer Your Honour briefly to what my

learned friend said about this. But this is a

power that is exercisable against the rights of

other people and, therefore, one would construe it

narrowly; that is what I am saying. Then when you

come to consider what use the Corporation seeks to

make of that power, one finds that it has this

massive 3000 yards or three kilometres long runway

into Botany Bay; not on the land but into the

water. And, as it agrees in its plan, it will

affect fishing - commercial and recreational

fishing rights, and it will affect the rights of

people to come and go in Botany Bay. So the whole

notion of it is that it is going to operate

adversely to individuals.

What we are submitting, Your Honour, with

respect, and the authorities are referred to, we

say, the reasoning behind the interpretation of such provisions is the rule of reason. I think

Your Honour the Chief Justice referred to

"common sense". I have taken the word, the rule of

reason from the Standard Oil case, as Your Honours

will remember. That is the notion, was it intended	to enable the Airports Corporation, without regard	to anything else, in relation to an airport in the
middle of a large metropolitan area. It is
different if you have a railway out in Bourke or somewhere like that, you can enlarge that perhaps
indefinitely. But when you have an airport in the
middle of a metropolitan area and with its margin
on the bay, what they propose to do is to extend it
out into the bay, and we say that is a massive undertaking on any view, and what they propose to
do by their dredging is a massive interference with
the bay and we respectfully submit that one would
not construe this power to authorize that activity.

Now, Your Honours, we have written out the

argument in support of that, and I do not want to

repeat it, but that is what we submit. Now,

Airports(4) 28 SIR M. BYERS, QC 29/9/92

Your Honours, can I just say a word about what my

learned friend - - -

DAWSON J:  I did not understand that last submission,

Sir Maurice. The activity of extending the runway

is not authorized at all, you are not suggesting

that, are you?

SIR MAURICE:  No.

DAWSON J: It is not authorized in contravention of State

environmental - - -

SIR MAURICE:  It may be a question, Your Honour

DAWSON J: And if I can just follow that, it is authorized

within the framework you say of the State

legislation by section 8(l)(a)?

SIR MAURICE:	Yes, depending - Your Honour, I do not disagree, if I may say so with respect, to what
Your Honour Mr Justice Dawson puts to me, but what
I am saying also - - -
DAWSON J:	I was just trying to find out what you were

saying.

SIR MAURICE:  I am sorry, but I am saying what Your Honour

says, and I am also saying a lot of things, perhaps

some of them unnecessary but, Your Honour, I am

also endeavouring to submit that one must have

regard to the extent of what is proposed and say,

does this paragraph authorize so large an extension

into the bay by this three kilometres, and I

suppose I am submitting two things; I submit first

of all, it is certainly envisaged that it comply

with State law and secondly, that it envisages

minor operations. Not extreme operations. For

example - - -

DAWSON J:  That is what I was getting at. Do you say this

is an extension of the airport, or an alteration,

for that matter, or not?

SIR MAURICE:  I say it is not an alteration within the

meaning of section 8(l)(a). I know Your Honour

will find that difficult, but what I am saying is

that alteration means some act that leaves the

thing substantially as it was before, and I have
quoted the dictionary definition; and we say this

does not leave it substantially as it was before,

it introduces a totally new and massive addition to

the airport. And we say that the word "extension",

it says:

extending or otherwise altering -

Airports(4) 29 SIR M. BYERS, QC 29/9/92

so what, in the second line -

the necessity or desirability of extending or

otherwise altering Federal airports -

so extending is analogous to "alter", and "alter"

means to leave it in its nature as it was, and we

respectfully submit this does not do so.

Then the question is, I suppose - or a

question is, what is the alternative to such a

view? What my learned friend says is the

alternative is this: he says the words "commit to

the Corporation" - that is the words of paragraph

8(1)(a) - "the choice of itself determining the

ambit of what is an extension and what is an

alteration and no-one may question that choice".

Now, that, as I understand the submissions of the Corporation - I doubt my friend would disavow

them but he may - they say, at page 2, paragraph 6,

"Section 8(l)(a) also commits to the FAC the
determination of what extensions or alterations of
Federal airports are necessary or desirable" and
they refer to a case which, of course, does not
deal with Commonwealth power where you cannot have,

perhaps, or it would be very difficult to have an

unexaminable discretion, when you have got to say

the law has to answer one of the characteristics in

a relief from the prohibition under (1) plus a

relief from applicable State law. It is that

second operation that I find extraordinary in

concept.

MR JACKSON: Well, Your Honour, that is, with respect, to

divide the whole into two parts. Could I just say

this, Your Honour. If one took, for example, there

is an absolute prohibition by regulation 9(1),

absolute as in the prohibition against export of

rutile, for example, in Murphyores v The

Commonwealth. Now, Your Honour, that being so, it

is possible for the absolute prohibition to be the

subject of relief upon really any terms.

Now, Your Honour, if one is identifying what

the terms are - and, Your Honour, it performs both

functions, to give the scope of the licence as well

as any other matter - but in dealing with the scope

of the licence, it says, "These are the things that

you are authorized to do" and, in doing that, in

saying that, it says, "You are authorized to carry

out a number of things".

Your Honour, one has to bear in mind that one

sees in 9(1) the works and the rights expressed in

the most brief fashion: they have to have some

Airports(4) 29/9/92

content. What I mean by that, if Your Honour looks

at the term "works", it means the works set out in

Schedule 2, that is at pages 14 and 15, and they

deal with the particular works. In relation to

those works, they are works which there is an

authority given to carry out and it is a direct

authority given.

Your Honour, in relation to those, by saying

in the negative, in effect, that that authority

authorizes you to do things and you do not need a licence of this kind, that kind, that kind or any
other kind that you might otherwise need by the

State, it is just defining what the ambit of the

authority is.

BRENNAN J:  Mr Jackson, I will ask you just one further

question and leave it be. Let us assume that the

regulations had been drafted so that there was no

subregulation (1) but only a subregulation (2)

which said, "The licensee is authorized to carry

out part of the works nominated in the licence in

spite of the law or provision of the law in New

South Wales that", so that the only effect of the

licence is to relieve from the operation of the law

or the provision of the law.

MR JACKSON:  Your Honour, if those were the only provisions,

we would submit again, with respect, that what that

does is to define the ambit of the authority

conferred by the licence. Even if one were to

excise regulation 9(1), one would still be left

with, for example, regulation 10(1) which says

that:

The Chief Executive Officer may direct a

licensee to -

do things -

in a particular manner -

for particular specified purposes. One would also see that there remains regulation 5(a) which says:

The objects of these Regulations are:

(a) to ensure that the works are carried out

and the rights are exercised -

not in accordance with State laws but

in accordance with the environmental standards

as defined. That is why what is not being done by

regulation 9(2) is to say State laws have no

Airports(4) 85 29/9/92

application simpliciter. What is being said is,

"We have our own regime. This regime is to be

followed and the State laws, because of that, are

to apply."

GAUDRON J: Could I ask you, Mr Jackson, when one looks to

the definition of the works, are they confined to

what I might call the airport site or do they

extend also to the dredging site?

MR JACKSON:  Your Honour, they are confined to the

construction site, as I would understand it.

Your Honour, may I correct myself if I am wrong tomorrow perhaps. But one then sees the rights -

and that deals with the other part of it, in

effect, and Your Honour will see the rights being

defined in regulation 3(1) as being "the rights"

which were acquired in respect of the dredging

site, to put it shortly.

So essentially what one has - and Your Honour

will recall that "the rights" code dealt with a

large number of individual matters and what is

being said in regulation 9(1) is that you cannot

carry out the works or exercise any of the rights,
unless you had a licence, and then the licence is
one that is a licence to do things that the

Corporation is entitled to do and you can only do

it if you follow through the regime that it has set

up for the purposes of the activity.

Now, Your Honours will also see that there is

a provision allowing cancellation of the licence in

regulation 11 and the grounds appear in

regulation 11(4) and Your Honours will see once

again the reference to:

the environmental standards -

and also, if a person who has a licence is acting

in a manner which interferes with the

implementation of those standards by someone else,

that is ground for cancellation of a licence. And Your Honours will also see at the top, (c) and (d).

So, Your Honours, these are not sterilization

provisions in the abstract; they are provisions

which are directed to provide - Your Honour, I do

not want to use the word again, "the regime" within

which the licence is to operate.

BRENNAN J: It looks to me, Mr Jackson, as though somebody

drafted it in a way that would be useful to a truck
driver; he must be held up by a State official and he wants to show the State official that he can do

it.

Airports(4) 86 29/9/92

MR JACKSON: Well, Your Honour, there is nothing wrong with

that.

BRENNAN J:  I am not saying there is; all I am saying is

that it just seems to me that that is perhaps what

underlies the drafting of it.

MR JACKSON:  Your Honour, without using the same expression,

if one if setting up a regime of this kind, why not

do it in a way which is specific, or as specific as

the circumstances admit, rather than, in effect,

pussyfooting around and letting someone work it out

when charged with an offence.	Your Honours, may I
come back to that in a moment.

We would submit that the terms of the

regulations, clearly we would submit with respect,

have the effect that the State Act provision is

inapplicable.

Now, Your Honours, one really never gets to

the provisions - I am sorry, may I start that

again. The regulations are in terms expressed to operate in respect of provisions which are of two

kinds. Your Honours will recall I referred to the

drafting technique which had been adopted of

referring to a law of the State of New South Wales,

on the one hand, and a provision of a law of the

State of New South Wales on the other. In relation

would not suggest that the dredging site is, by

to the latter class, that is, the provisions which

might otherwise be applicable, by virtue of the

reason of the rights which we have, made a

Commonwealth place. So far as the construction

site is concerned, of course it is a Commonwealth

place. It is land which the Commonwealth owns and

which it is part of the federal airport.

Your Honours, one does not really ever get, we

would submit, to the latter provisions in the sense

to the provisions otherwise made applicable by the

Commonwealth Places (Application of Laws) Act

because, we would submit, there is an inconsistency

which would apply in any event, and that is the

inconsistency of the regulations, or in a sense,
the other part of the regulations, because, of
course, the Application of laws Act, because of

section 4(2), would not apply.

Could I just give a reference to

R v Loewenthal; Ex parte Blacklock, (1974) 131 CLR

338.       I do not think I need to take Your Honours to

the actual passages, but there are three passages

in it in which the Court accepted what in effect

section 4(2) says, and that is that the State laws

do not apply if they would otherwise be

Airports(4) 87 29/9/92

inapplicable by reason of a provision other than

section 52. They are to be seen at page 340 about

point 2, Chief Justice Barwick; page 342 about

point 3, Justice Menzies; and page 346 about

point 6, Your Honour the Chief Justice.

Your Honours, I wonder if I could ask

Your Honours to go for a moment to our written submissions and, in particular, to paragraphs 59 to

62.       I have, I think, really addressed to the Court

orally the argument which we would seek to address

derived from those provisions, but could I simply

ask Your Honours to note our submissions that are

set out there and also the cases to which we refer.

Your Honours, might I move then to the terms

of the Environment Protection (Impact of Proposals)

Act 1974 and to the next argument which we wish to

advance, namely the question of inconsistency.

Could I say - I will not say in answer to

Your Honour Justice Brennan, but in answer to a

question that I suspect Your Honour Justice Brennan

would ask me - and that concerns the question
whether by regulation under the Federal Airports

Corporation Act it would be possible to make inapplicable a provision otherwise made applicable

by the Commonwealth Places (Application of Laws)

Act. May I deal with that a little later.

BRENNAN J:  It does not arise if the dredging site is not a

Commonwealth place.

MR JACKSON: Well it does not arise, that is right,

Your Honour. Your Honours, the issue is one that

also arises if one takes the view of the single
rather than the double application of the

regulations.

MASON CJ:  Mr Jackson, that might be a convenient point at

which to adjourn.

AT 4.14 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 30 SEPTEMBER 1992

Airports(4) 88 29/9/92