EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 297
Issued by the Authority of the Attorney-General
Commonwealth Places (Application of Laws) Act 1970
Commonwealth Places (Application of Laws) Amendment Regulations (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 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.
The Commonwealth Places (Application of Laws) Regulations 1998 (the Principal Regulations) set out various matters necessary to give effect to the Act.
Vicary’s Winery is situated on Commonwealth land within New South Wales. It is subject to the laws of New South Wales by virtue of subsection 4(1) of the Act, which provides that State laws apply to Commonwealth places within a State. As such, it is subject to the Liquor Act 1982 (NSW) (the Liquor Act). Section 122 of the Liquor Act provides that it is an offence where a person sells, advertises or delivers liquor without authority. Section 18 of the Liquor Act provides that the New South Wales Licensing Court may issue a licence to sell liquor.
The doctrine of the separation of powers, which is inherent in Chapter III of the Constitution, restricts the Commonwealth Parliament’s legislative powers so that it cannot vest a non-judicial function on a judicial body. This principle also prevents the Commonwealth from adopting a State law that vests a non-judicial function in a judicial body.
The New South Wales Licensing Court is a judicial body that performs the non-judicial function of issuing licences. As such, the doctrine of the separation of powers prevents the Commonwealth from adopting the provisions that allow for the issue of licences under the Liquor Act. As a result, Vicary’s Winery is subject to the offence provisions of the Liquor Act, but is not able to obtain a licence under the Liquor Act.
To overcome this anomalous situation, subregulation 3(1) of the Principal Regulations provides that the Liquor Act does not apply to a place that:
(a) is subject to a lease that authorises the sale of liquor; and
(b) is acquired by the Commonwealth for the construction of a civil airport; and
(c) is not subject to an airport lease under the Airports Act 1996 or the Airports (Transitional) Act 1996.
The effect of subregulation 3(1) of the Principal Regulations is that the Liquor Act does not apply to Vicary’s Winery. Instead, the winery’s dealings with liquor are regulated by various provisions in its lease with the Commonwealth.
The purpose of the Regulations is to remove subregulation 3(2) of the Principal Regulations, which provides that regulation 3 will cease to have effect on 31 December 2005.
The Regulations allow Vicary’s Winery to continue to operate until a legislative solution is found or a decision is made about the future of the site. The New South Wales Government has prepared a consultation draft of the Liquor Bill and Liquor Court Bill, which propose changes to the judicial and administrative structures involved in liquor licensing in New South Wales. It is considered that, should the proposed laws be enacted, they may address the legal concerns which have required the making of a regulation preventing the Liquor Act from applying in certain Commonwealth places.
However, it is not clear if and when those laws will be enacted and the relevant Commonwealth places are currently subject to leases of five years with an option of a further five years, which makes the removal of the sunset clause, subject to the provisions of the Legislative Instruments Act 2003, desireable.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on registration.
Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct or substantial indirect effect on business.
Overview
The Commonwealth Places (Application of Laws) Amendment Regulations (No. 1) 2005 were enacted to amend the Commonwealth Places (Application of Laws) Regulations 1998, addressing a legal anomaly concerning Vicary’s Winery located on Commonwealth land within New South Wales. The original regulation, which excluded the application of the Liquor Act 1982 (NSW) to the winery due to the separation of powers doctrine preventing the Commonwealth from allowing a judicial body to issue non-judicial licences, was set to expire on 31 December 2005. These regulations were introduced to remove this sunset clause, allowing Vicary’s Winery to continue operations until a legislative solution is found or a decision is made regarding the future of the site. The policy objective is to provide a temporary regulatory solution while awaiting potential legislative changes from the New South Wales Government that may address the underlying legal issues.
Scope and Application
The Commonwealth Places (Application of Laws) Amendment Regulations (No. 1) are a legislative instrument designed to address specific legal issues arising from the application of state laws to Commonwealth places, particularly focusing on Vicary’s Winery located within New South Wales. This winery, situated on Commonwealth land, falls under the jurisdiction of state laws as per the Commonwealth Places (Application of Laws) Act 1970, which mandates that state laws apply to Commonwealth places within a state. However, Vicary’s Winery is exempt from the application of the Liquor Act 1982 (NSW) due to the doctrine of the separation of powers, which prevents the Commonwealth from adopting state laws that confer non-judicial functions on judicial bodies, such as the issuance of liquor licenses by the New South Wales Licensing Court. Consequently, while Vicary’s Winery remains subject to the Liquor Act’s offence provisions, it cannot obtain a liquor license under the Act. To rectify this, subregulation 3(1) of the Commonwealth Places (Application of Laws) Regulations 1998 excludes certain places from the Liquor Act, including Vicary’s Winery, provided it meets specific criteria such as being subject to a lease authorising the sale of liquor and not being subject to an airport lease. The Amendment Regulations aim to extend the application of these provisions by removing the sunset clause, allowing Vicary’s Winery to continue operations until an alternative legislative solution is found. These Regulations are minor and do not significantly impact business operations or require extensive consultation.
Key Provisions
The Commonwealth Places (Application of Laws) Amendment Regulations (No. 1) primarily address the application of state laws to Commonwealth places, particularly in relation to the sale of liquor. Section 22 of the Commonwealth Places (Application of Laws) Act 1970 allows the Governor-General to create regulations that are not inconsistent with the Act and are necessary for its implementation. Subregulation 3(1) of the Principal Regulations, for example, specifies conditions under which the Liquor Act 1982 (NSW) does not apply to certain Commonwealth places, including those that are subject to a lease authorising the sale of liquor and have been acquired for the construction of a civil airport but are not under an airport lease. Vicary’s Winery, situated on Commonwealth land in New South Wales, falls under this regulation and is thus exempt from the Liquor Act's licensing requirements while still being subject to its prohibitions.
The Regulations impose certain obligations on entities operating on Commonwealth places, ensuring that they adhere to the specific conditions set out in the lease agreements with the Commonwealth. For instance, Vicary’s Winery must comply with its lease terms concerning the sale of liquor, as the Liquor Act’s licensing provisions do not apply to it. This means that while Vicary’s Winery can sell liquor, it cannot obtain a licence under the Liquor Act due to the doctrine of the separation of powers, which prevents the Commonwealth from adopting state laws that vest non-judicial functions in judicial bodies.
Any breach of the provisions set out in the Liquor Act 1982 (NSW), even though it does not apply to Vicary’s Winery directly, could result in significant legal consequences. Under Section 122 of the Liquor Act, selling, advertising, or delivering liquor without authority is an offence. Although Vicary’s Winery is exempt from the licensing requirements, it must still comply with the overarching prohibitions against unauthorised dealings in liquor. Failure to do so could result in penalties as prescribed by the Liquor Act, which may include fines or other sanctions. The Regulations aim to mitigate the legal uncertainties by allowing Vicary’s Winery to continue operating until a legislative solution is found, thus avoiding any abrupt disruptions.