Commonwealth Places (Application of Laws) Amendment Regulations 2003 (No. 1) 2003 No. 116
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 116
Issued by the Authority of the Attorney-General
Subject: Commonwealth Places (Application of Laws) Act 1970
Commonwealth Places (Application of Laws) Amendment Regulations 2003 (No. 1)
Section 22 of the Commonwealth Places (Application of Laws) Act 1970 ('the Act') provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 4(6) of the Act permits the Governor-General to make regulations that exclude or modify the provisions of a State law in its application to Commonwealth places located in the State.
Subsection 4(1) of the Act provides that State laws apply in relation to each place in that State that is a Commonwealth place, ie a place (not including the Australian Capital Territory) for which the Commonwealth Parliament has the exclusive right to make laws by virtue of section 52 of the Constitution.
The Commonwealth Places (Application of Laws) Regulations 1998 ('the Principal Regulations') set out various matters necessary to give effect to that Act.
Vicary's Winery at Badgery's Creek, in New South Wales, is situated on Commonwealth land and is therefore a Commonwealth place. Accordingly, the winery is subject to the laws of New South Wales, including the Liquor Act 1982 ('the Liquor Act'). Under this Act, it is an offence to sell liquor without authority.
The Commonwealth Parliament's legislative power is subject to the restrictions arising out of the doctrine of the separation of powers which is inherent in Chapter III of the Constitution. The doctrine of the separation of powers prohibits the enactment of a Commonwealth law (including a State law applied as Commonwealth law in a Commonwealth place by the Act) which vests a non judicial function in a judicial body. The New South Wales Licensing Court is a 'court' within the meaning of subsection 77(iii) of the Constitution and is therefore a judicial body. However, the function of granting a licence is an administrative, or non judicial, function. Therefore, to the extent that the Liquor Act provides for the grant of licences by the New South Wales Licensing Court, it will be ineffective. Other provisions of the applied New South Wales law, such as the offence provisions in the Liquor Act, may apply to the Badgery's Creek site.
To overcome this anomalous situation the Principal Regulations disapply the Liquor Act to a class of Commonwealth places, including the airport development site at Badgery's Creek. The winery's dealings with liquor are regulated by various provisions in its lease with the Commonwealth which impose certain requirements and restrictions. The Principal Regulations operate until 30 June 2003. A provision was also inserted into the Principal Regulations giving them retrospective application between 31 March 2002 and 31 July 2002.
The regulations allow Vicary's Winery to continue operating until a decision on the future of the Badgery's Creek site is reached in 2005. This is achieved by extending the sunset provision in Regulation 3(b) of the Principal Regulations to 31 December 2005. The regulations also remove the provision in Regulation 3(a) applying the Principal Regulations between 31 March 2002 and 31 July 2002.
Details of the regulations are set out in the Attachment.
The regulations commence on 1 July 2003.
ATTACHMENT
The Regulations
Regulation 1 describes how the Regulations are to be cited.
Regulation 2 provides that the Regulations commence on 1 July 2003.
Regulation 3 provides that the Principal Regulations will be amended in accordance with Schedule 1 of the Regulations.
Schedule 1, Item 1 amends Regulation 3 of the Principal Regulations so that the Liquor Act 1982 (NSW) does not apply to certain Commonwealth places, including Vicary's Winery at Badgery's Creek. The Regulations also amend the sunset clause in the Principal Regulations so that the Regulations cease to have effect at the end of 31 December 2005. The Regulations also remove the retrospective provision applying the Principal Regulations between 31 March 2002 and 31 July 2002.
Overview
The Commonwealth Places (Application of Laws) Amendment Regulations 2003 (No. 1) were enacted to address a specific legal anomaly arising from the application of state laws to Commonwealth places, which are areas where the Commonwealth Parliament has exclusive legislative power. The Commonwealth Places (Application of Laws) Act 1970, under which these regulations were made, allows for the application of state laws to Commonwealth places, but it must adhere to constitutional constraints, particularly the separation of powers doctrine. This doctrine restricts the Commonwealth's legislative power to avoid vesting non-judicial functions in judicial bodies. In the case of Vicary's Winery at Badgery's Creek, located on Commonwealth land in New South Wales, the New South Wales Liquor Act 1982, which mandates the New South Wales Licensing Court to grant liquor licenses, conflicted with this doctrine as the function of granting licenses is administrative, not judicial. To resolve this issue, the regulations amend the Commonwealth Places (Application of Laws) Regulations 1998 to exclude the application of the Liquor Act 1982 to certain Commonwealth places, including the winery. Additionally, the regulations extend the sunset provision to allow the winery to operate until a decision on the Badgery's Creek site is made in 2005. These regulations were issued by the authority of the Attorney-General and aim to ensure that the administration of Commonwealth places complies with constitutional requirements while allowing for practical regulatory adjustments.
Scope and Application
The Commonwealth Places (Application of Laws) Amendment Regulations 2003 (No. 1) pertains to the application of state laws within Commonwealth places, which are areas under the exclusive legislative jurisdiction of the Commonwealth government outside the Australian Capital Territory. These regulations are an extension of the Commonwealth Places (Application of Laws) Act 1970, which provides the legislative framework for the application of state laws in Commonwealth places. The Act applies to all Commonwealth places, which are defined as locations where the Commonwealth Parliament has exclusive legislative authority under section 52 of the Constitution. The Act's application is contingent upon the state laws being compatible with the Commonwealth's legislative powers, which excludes any state law that would otherwise infringe upon the separation of powers as outlined in Chapter III of the Constitution. The Regulations amend the Principal Regulations to exclude certain Commonwealth places, such as Vicary's Winery at Badgery's Creek, from the application of the Liquor Act 1982 (NSW), while other applicable state laws continue to operate. The amendments also adjust the sunset clause of the Principal Regulations, extending their application to 31 December 2005 and removing a retrospective application provision that was in effect from 31 March 2002 to 31 July 2002. These regulations thus ensure a seamless transition and operation of Vicary's Winery until a definitive decision regarding the Badgery's Creek site is made in 2005.
Key Provisions
The Commonwealth Places (Application of Laws) Amendment Regulations 2003 (No. 1) (the 'Regulations') are amendments to the Commonwealth Places (Application of Laws) Regulations 1998 ('the Principal Regulations'). These Regulations make changes to the way state laws apply to certain Commonwealth places, as authorised by section 22 of the Commonwealth Places (Application of Laws) Act 1970 ('the Act'). Specifically, Regulation 3(b) of the Principal Regulations is amended to disapply the Liquor Act 1982 (NSW) to certain Commonwealth places, including Vicary's Winery at Badgery's Creek, and Regulation 3(a) is amended to remove the retrospective application of the Principal Regulations. The Regulations also extend the sunset clause in Regulation 3(b) of the Principal Regulations to 31 December 2005, allowing Vicary's Winery to continue operating until a decision on the future of the Badgery's Creek site is reached in 2005.
The Regulations impose obligations on the parties or entities they govern, including the Commonwealth and the relevant State governments. The Regulations require the Commonwealth to ensure that state laws do not apply to Commonwealth places in a way that conflicts with the doctrine of the separation of powers. The Regulations also impose obligations on the State governments to ensure that their laws do not vest non-judicial functions in judicial bodies, such as the New South Wales Licensing Court. The Regulations require Vicary's Winery to comply with the provisions of its lease with the Commonwealth, which impose certain requirements and restrictions on the winery's dealings with liquor.
Failure to comply with the Regulations may result in civil or criminal consequences, including penalties for offences under the Liquor Act 1982 (NSW). The maximum penalty for an offence under the Liquor Act is currently $11,000 for an individual and $55,000 for a body corporate. However, as the Regulations disapply the Liquor Act to certain Commonwealth places, including Vicary's Winery at Badgery's Creek, there are no offences under the Liquor Act that can be committed at the winery. The Regulations do not impose any additional penalties for breach, but failure to comply with the Regulations may result in legal action being taken by the relevant parties or entities.