Commonwealth Numbered Regulations - Explanatory Statements

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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.


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.

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