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Lang v Westside Corporation Pty Ltd[2024] QSC 190

Lang v Westside Corporation Pty Ltd[2024] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

Lang v Westside Corporation Pty Ltd [2024] QSC 190

PARTIES:

MERVYN KEITH LANG AND MARGARET LANG

(applicants)

v

WESTSIDE CORPORATION PTY LTD (ACN 117 145 516)

(respondent)

FILE NO/S:

BS 3915 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

26 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2024

JUDGE:

Bowskill CJ

ORDER:

Paragraph 1A of the amended originating application is dismissed. 

CATCHWORDS:

ENERGY AND RESOURCES – OIL – OTHER MATTERS – where the applicants are the owners of three rural properties on which they run cattle and those properties are within the area of a petroleum lease granted under the Petroleum Act 1923 (Qld) – where the respondent has authority to act for and on behalf of the tenement holders – where the applicants contend that the respondent has failed to prevent the introduction and spread of weeds on the properties – where the applicants are a “registrable biosecurity entity” under s 141 of the Biosecurity Act 2014 (Qld) and have implemented a biosecurity management plan for their properties – where s 94H of the Biosecurity Regulation 2016 (Qld) requires that a person entering, present at or leaving a management area for a biosecurity management plan must comply with the plan, unless, inter alia, the person is required or permitted, under an Act, to enter the management area – whether the respondent is required, by s 94H of the Biosecurity Regulation 2016, to comply with the applicants’ biosecurity management plan when entering and working on the applicants’ land – whether the provisions of the Petroleum Act 1923 and associated legislation permit the respondent, under an Act, to enter the applicants’ land

Acts Interpretation Act 1954 (Qld), s 6, s 14A(1), sch 1

Biosecurity Act 2014 (Qld), s 4(1), s 5, s 15, s 16, s 17, s 23, s 25, s 26, s 28, s 134, s 141, s 151, s 503(2)(b)

Biosecurity Regulation 2016 (Qld), s 41A, s 41B, s 41C, s 47, s 94G, s 94G(1) s 94G(4), s 94H, s 94H(4)(c)

Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), s 9, s 10, s 11, s 15A, s 15B, s 16, s 36, s 39, s 43, s 47, s 83(1)

Mineral and Energy Resources (Common Provisions) Regulation 2016 (Qld), s 16, s 16(7)

Petroleum Act 1923 (Qld), s 44, s 51, s 74X, s 78L, s 78M, s 79P, s 79R, s 78S, s 79U, s 74A

Petroleum and Gas (Production and Safety) Act 2004 (Qld), s 24A, s 497, s 499

Council of the Shire of Sarina v Dalrymple Bay Coal Terminal Pty Ltd [2002] 1 Qd R 548; [2001] QCA 146

Eckersley v Medical Board of Queensland [1998] 2 Qd R 453; [1996] QCA 528

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7

R v A2 (2019) 269 CLR 507; [2019] HCA 35

COUNSEL:

P Hackett for the applicants

A Skoien for the respondent

SOLICITORS:

Redmond & Redmond Lawyers for the applicants

Hopgood Ganim Lawyers for the respondent

  1. [1]
    The applicants, Mr and Mrs Lang, own three rural properties, located at Kianga in Queensland, on which they run cattle.  The properties are within the area of a petroleum lease (PL 94), granted under the Petroleum Act 1923 (Qld).  PL 94 is held by three companies which are members of an unincorporated joint venture.  The respondent is the operator of the joint venture and has authority to act for and on behalf of the tenement holders, including by carrying out activities on the land within the area of PL 94.
  2. [2]
    The applicants have been involved in an ongoing dispute with the respondent, in relation to what the applicants say is the respondent’s failure to prevent the introduction and spread of weeds onto their properties and in relation to the long-term effects of chemicals the respondent proposes to use for the treatment and control of weeds.
  3. [3]
    The applicants are a “registrable biosecurity entity” under s 141 of the Biosecurity Act 2014 (Qld), because they keep designated animals on their properties (s 134), namely, cattle.  They are registered as such, and their properties have been allocated a property identification code (PIC) as required by s 151 of the Act.
  4. [4]
    Section 94G of the Biosecurity Regulation 2016 (Qld) enables a registered biosecurity entity for a designated place to make a plan, called a “biosecurity management plan”, “stating reasonable measures to prevent, control or stop the spread of biosecurity matter[1] into, at or from the place” (s 94G(1)). 
  5. [5]
    The applicants have made a biosecurity management plan for their properties.  Section 94G(4) requires a registered biosecurity entity that makes a biosecurity management plan to ensure people coming onto their land are aware of its existence, by doing certain things.  That section provides:

“(4) If an entity mentioned in subsection (1) or (2) makes a biosecurity management plan for a place, the entity must—

  1. keep the plan as a separate document at the place; and
  1. make the plan available for inspection at the place, on request, during ordinary business hours; and
  1. ensure a sign is conspicuously displayed at each management area for the plan stating that –
  1. a biosecurity management plan applies to the place; and
  1. it is an offence for a person entering, present at, or leaving the management area to fail to comply with the measures stated in the plan unless the person has a reasonable excuse.”
  1. [6]
    The applicants did place a sign at the entrance to their land, as required by s 94G(4)(c).  The evidence does not address whether sub-sections (a) and (b) were satisfied generally, but does establish that the applicants communicated the contents, and provided a copy, of the plan to the respondent.
  2. [7]
    Section 94H of the Regulation then provides:

“94H Requirement to comply with biosecurity management plan

  1. A person entering, present at or leaving a management area for a biosecurity management plan must comply with the measures stated in the plan.
  1. However, subsection (1) does not apply if—
  1. the person does not know, and could not reasonably have known, a biosecurity management plan applied to the management area; or
  1. the entity that made the biosecurity management plan is not complying with section 94G(4); or
  1. the person is required or permitted, under an Act, to enter the management area.”[2]
  1. [8]
    In the context of the dispute between the applicants and the respondent about the introduction of weeds, the applicants contend, by reference to s 94H, that the respondent should be required to comply with their biosecurity management plan in order to enter and work on their land.  The respondent says it does not need to, because it is permitted to enter the relevant area “under an Act”, namely the Petroleum Act.  The respondent emphasises that it is already required to comply with biosecurity obligations by force of arrangements required under that, and associated, legislation.
  2. [9]
    It is in that context that the applicants apply, by paragraph 1A of their amended originating application, for a “declaration as to whether the respondent is required by regulation 94H of the Biosecurity Regulation 2016 (Qld) to comply with the applicants’ biosecurity management plan when entering and working on the applicants’ land”.  The applicants also apply for an injunction restraining the respondent, by its “affiliates or associates”, from accessing their property, unless it provides a written undertaking to the court that it will comply with the biosecurity management plan.  By order made on 17 June 2024, the statutory construction point underpinning the declaration sought by paragraph 1A was ordered to be heard separately, and came on for hearing in the applications list on 31 July 2024. 
  3. [10]
    At the hearing, it was agreed that the appropriate question, for the purposes of paragraph 1A of the amended originating application is, on the assumption that the applicants:
    1. are a registered biosecurity entity; and
    2. have made a biosecurity management plan under s 94G(1) of the Regulation; and
    3. have complied with s 94G(4) of the Regulation,

is the respondent required by s 94H of the Biosecurity Regulation to comply with the applicants’ biosecurity management plan when entering and working on the applicants’ land?

  1. [11]
    The answer to this question depends upon the proper construction of s 94H of the Biosecurity Regulation and the relevant provisions of the Petroleum Act and associated legislation,[3] to determine whether (or not), for the purposes of s 94H of the Regulation, by virtue of holding the petroleum lease (PL 94), the respondent is permitted, under an Act [the Petroleum Act], to enter the applicants’ land.
  2. [12]
    The approach to construction of a statute is well-settled.  It involves construing the words of the provision, having regard to the context for and purpose of the provision – which includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole and, if relevant, the “mischief” which the statute was intended to remedy.[4]
  3. [13]
    The main purposes of the Biosecurity Act are set out in s 4(1) of the Act, and include the provision of a framework for an effective biosecurity system for Queensland that helps to minimise biosecurity risks and facilitates responding to impacts on a “biosecurity consideration” (defined in s 5(a)) and “biosecurity events” (defined in s 14)  in a timely and effective way (s 4(1)(a)).
  4. [14]
    The ways in which the purposes of the Act are primarily to be achieved is articulated in s 5, and include the following:

“(a) imposing a general obligation on persons to prevent or minimise the impact of biosecurity risks on human health, social amenity, the economy and the environment (each a biosecurity consideration); and

  1. regulating activities involving biosecurity matter[5] or carriers;[6] and

…

  1. providing for flexible and timely ways of minimising and mitigating biosecurity risks;[7]…”
  1. [15]
    The “general biosecurity obligation” arises under s 23 of the Act, which provides as follows:

“23 What is a general biosecurity obligation

  1. This section applies to a person who deals with biosecurity matter or a carrier, or carries out an activity, if the person knows or ought reasonably to know that the biosecurity matter, carrier or activity poses or is likely to pose a biosecurity risk.
  1. The person has an obligation (a general biosecurity obligation) to take all reasonable and practical measures to prevent or minimise the biosecurity risk.
  1. Also, the person has an obligation (also a general biosecurity obligation)–
  1. to prevent or minimise adverse effects on a biosecurity consideration of the person’s dealing with the biosecurity matter or carrier or carrying out the activity; and
  1. to minimise the likelihood of causing a biosecurity event, or to limit the consequences of a biosecurity event caused, by dealing with the biosecurity matter or carrier or carrying out the activity; and
  1. not to do or omit to do something if the person knows or ought reasonably to know that doing or omitting to do the thing may exacerbate the adverse effects, or potential adverse effects, of the biosecurity matter, carrier or activity on a biosecurity consideration.

Examples of things that may exacerbate the adverse effects, or potential adverse effects, of biosecurity matter, a carrier or an activity–

  • failing to isolate an infected animal from a herd
  • failing to wash footwear before leaving a property on which anthrax is present
  • inappropriately disposing of leaf litter containing a plant virus or disease
  • failing to take reasonable steps to reduce contaminants in plants and animals, including, for example, by allowing designated animals (not including bees) to graze on land contaminated with heavy metals or by using water that may contain a contaminant to irrigate crops
  • failing to manage the impact of invasive plants and animals on a person’s land
  1. For subsection (1), carrying out an activity includes entering, being present at or leaving a place where biosecurity matter or a carrier is present.
  1. [16]
    A person on whom a “general biosecurity obligation” is imposed, who fails to discharge that obligation, commits an offence (s 24 of the Act).  The prescribed penalty depends on whether the offence is an “aggravated offence” (s 27) or not.
  2. [17]
    The Act contemplates that a regulation may prescribe “ways in which a person’s general biosecurity obligation can be discharged to prevent or minimise a biosecurity risk” (s 503(2)(b)).  In that regard, s 25 of the Act provides:

“25 Effect of regulation for discharge of general biosecurity obligation             

  1. This section applies if a provision of a regulation (regulation provision) is identified in the regulation as a provision that prescribes a way of discharging a person’s general biosecurity obligation.
  1. Unless otherwise stated in the regulation, the regulation provision does not prescribe all that a person to whom the provision applies must do, or must not do, to discharge the person’s general biosecurity obligation.
  1. However, for applying the general biosecurity obligation offence provision [section 23], the person fails to discharge the general biosecurity obligation if the person contravenes the regulation provision.”
  1. [18]
    The Act also contemplates that a code of practice[8] may state a way of discharging a person’s general biosecurity obligation (s 26). 
  2. [19]
    Section 28 provides for a defence of due diligence.  Relevantly, it is a defence for a person to prove that they took all reasonable precautions and exercised proper diligence to prevent the commission of the offence by the person or another person under their control if they prove that:
    1. “the person took the precautions that were reasonable in all the circumstances to prevent the spread of any biosecurity matter” (s 28(2)(d)); or
    2. “if a regulation prescribes a way in which a person’s general biosecurity obligation can be discharged to prevent or minimise a biosecurity risk posed by the relevant biosecurity matter or carrier of the biosecurity matter – the person followed the prescribed way” (s 28(3)(a)).
  3. [20]
    Chapter 5 of the Biosecurity Regulation contains provisions dealing with “prevention and control measures for biosecurity”.  By s 47 of the Regulation, chapter 5 is “identified as a provision that prescribes a way of discharging a person’s general biosecurity obligation in relation to (a) dealing with biosecurity matter or a carrier; or (b) carrying out an activity”.  Various parts of chapter 5 deal with statewide restrictions and requirements, requirements for particular areas and for particular “pests”. The final part of chapter 5, is part 13, which deals with biosecurity management plans – this is where s 94G and s 94H are found.
  4. [21]
    Chapter 5, part 13 was inserted into the Biosecurity Regulation in 2020 by the Agriculture and Other Legislation Amendment Act 2020 (Qld).  Prior to this, there were similar provisions contained in chapter 2, part 10 of the Regulation (ss 41A, 41B and 41C); but these provisions were not identified as a way of discharging a person’s general biosecurity obligation. 
  5. [22]
    The structure of the previous provision, the equivalent of s 94H, was slightly different, although of similar effect.  The previous section provided as follows:

“41C Requirement to comply with biosecurity management plan

  1. A person entering, present at or leaving a management area for a biosecurity management plan must comply with the measures stated in the plan unless the person has a reasonable excuse.

Example of a reasonable excuse –

the person is required or permitted, under an Act, to enter the management area in a way that is inconsistent with the measures

Maximum penalty – 20 penalty units.

  1. However, subsection (1) does not apply if –
  1. the person does not know, and could not reasonably have known, a biosecurity management plan applied to the management area; or
  1. the entity that made the biosecurity management plan is not complying with section 41B(4)”.[9]
  1. [23]
    Section 41C was introduced by the Biosecurity and Other Legislation Amendment Regulation 2019 (Qld).  In relation to the example of a “reasonable excuse” provided in the regulation, the explanatory note to the amendment regulation noted that “this example may be applicable in circumstances where work is required on power transmission lines or authorised officers are exercising entry powers under the Act”.[10]
  2. [24]
    More broadly, in relation to the later amending legislation, the justification for the provisions was outlined in the explanatory notes as follows:

“These provisions are justified because the person making the biosecurity management plan has unique knowledge about what activities occur at the place including which activities might pose a risk and what would be reasonable and practical measures to prevent, control or stop the spread of biosecurity matter into, at or from the place. It is not mandatory that a biosecurity management plan be made, but where the person develops a plan it will also assist others at the place to comply with the general biosecurity obligation which applies to everyone.”[11]

  1. [25]
    As is apparent from the language used in s 25(1) and s 28(3)(a) of the Biosecurity Act and s 47 of the Biosecurity Regulation, compliance with the regulation is “a way” of complying with a person’s general biosecurity obligation, but not “the [only] way”.  But of course the question for present purposes is whether the respondent is required, under s 94H of the Regulation, to comply with the measures contained in the applicants’ biosecurity management plan.  The answer depends on whether or not the respondent is “required or permitted, under an Act, to enter the management area”, within the meaning of s 94H(2)(c).
  2. [26]
    There is little assistance to be gained, from the Biosecurity Act or the Biosecurity Regulation, as to what is meant by the phrase “required or permitted, under an Act, to enter the management area”.  The example given, in the explanatory notes in relation to the earlier version of s 94H, is no more than that, an example of a circumstance in which a person may be required or permitted, under an Act, to enter.
  3. [27]
    Having regard to the words used (“under an Act”), the first point to note is that the requirement or permission may be under any Act of the Queensland Parliament.[12] 
  4. [28]
    In the present case the relevant concept is permission, as opposed to requirement.  The word “permitted” should be given its ordinary meaning.  As informed by the Oxford English Dictionary, in this context it means “allowed”.  A person who holds a right to enter certain land is “permitted” to enter that land.
  5. [29]
    The word “under” is broadly defined in schedule 1 to Acts Interpretation Act 1954 (Qld), as follows:

“under, for an Act or a provision of an Act, includes –

  1. by; and
  1. for the purposes of; and
  1. in accordance with; and
  1. within the meaning of.”
  1. [30]
    The meaning of the phrase “under an Act” was considered in Council of the Shire of Sarina v Dalrymple Bay Coal Terminal Pty Ltd [2001] QCA 146, in the context of s 4(1)(g)(i) of the Local Government Act 1993 (Qld) (which defined an “owner” of land as, among other things, the holder of “an occupation permit under an Act”).  Justice Williams, with whom McPherson JA and Dutney J agreed, construed the phrase as referring to “any permit granted pursuant to a power conferred by an Act giving to the grantee a right of occupancy” (at [15]).  In the course of his Honour’s reasons, Williams JA observed at [26] that:

“Gibbs CJ in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 295 considered the meaning of the expression ‘under an enactment’, which, in my view, must mean the same thing as ‘under an Act’…  After referring to a number of authorities he said that ‘under’ in the context ‘means in pursuance of or under the authority of’; in other words, it is referring to the source of the power to do something.”[13]

  1. [31]
    A person will be “permitted, under an Act, to enter” an area of land where an Act is the source of the power under which the person’s right to enter is conferred.
  2. [32]
    The applicants submit that the words used in s 94H(2)(c) of the Regulation were intended to refer to “an inspector appointed under the Animal Care and Protection Act 2001” or to “animal welfare inspectors [who] enter premises without a warrant”.  This submission is said to be based on statements contained in the explanatory notes to the Agriculture and Other legislation Amendment Bill 2019 (which became the 2020 Act by which chapter 5, part 13, including s 94H, was inserted into the Regulation).  There is no rationale, by reference to the accepted principles of statutory construction, for construing s 94H in this way.  It does not emerge from the words used in the section itself; nor is there any justification, having regard to the broader context or apparent purpose of the provision, for reading s 94H in such a specifically narrow way (which requires reading in a number of additional words).  Although the explanatory notes to the Bill contain a number of references to “animal welfare” and “animal welfare inspectors”, the 2020 Act does not; nor does the Biosecurity Act or Biosecurity Regulation.
  3. [33]
    The respondent submits that it is “permitted, under an Act” to enter the area to which the biosecurity management plan applies, because it holds a right to enter the area under PL 94, the source of the power for which is the Petroleum Act.  The applicants say this is incorrect – that the source of the respondent’s right of entry is the lease itself; not the Act.
  4. [34]
    The question for determination in this case turns upon the proper construction of the relevant provisions of the legislation under which PL 94 was granted – namely, the Petroleum Act 1923 – and associated legislation, which governs the exercise of rights under PL 94.
  5. [35]
    The petroleum lease, PL 94, was first granted, to another entity, in 1996 for a term of 35 years.  It was transferred to various entities over the subsequent years; ultimately, in January 2013, to the three companies which form the joint venture of which the respondent is the operator.
  6. [36]
    Under the Petroleum Act in force at the time of the initial grant,[14] the Minister was empowered to grant an authority to prospect on any land (s 18(1)) and to fix the area to be held, “the terms, rent and the conditions, provisions, and stipulations as to labour and other matters” (s 18(2)).  By s 18(4), the authority “shall entitle the holder, upon payment in advance of the rent fixed … to undertake exploration or prospecting … or generally to do all things in respect of the search for and discovery of petroleum”.  Section 18(5) then provided that “[c]ompensation under this Act shall be payable by the holder of an authority to prospect on any private land or improved land before the holder enters thereon”, with such compensation to be agreed or determined by the Wardens Court.  The holder of the authority was required to report to the Minister if they discovered “payable deposits of petroleum” (s 18(6)), and the Minister could then call on the holder to apply for a lease (s 18(7)), and a lease could be granted (s 18(8)(b)).
  7. [37]
    Under that earlier version of the Petroleum Act, s 17(1)(b) empowered the Governor in Council to grant petroleum leases.  The provisions in relation to leases were contained in part 6 (ss 40 to 53).  Section 43 required an applicant for a lease, before the grant of the lease, to deposit with the Minister an amount of money by way of security, for compliance by the lessee with the provisions of the Act “and for the payments of any compensation or damages which may be or become payable by the lessee to any owner or occupier of improved land or private land comprised in the lease”.  An obligation to pay compensation to such an owner or occupier is contemplated, by s 88, as arising from the conduct of operations on the land (for example, damage to crops or improvements on the land).
  8. [38]
    The form of a petroleum lease granted under the Act was prescribed by s 44, which included a requirement that “[e]very lease shall”:
  1. “(b)
    confer upon the lessee the exclusive right to prospect for, mine, extract, recover, remove, and dispose of all petroleum in or under the land demised, with the right to construct and maintain thereon all works buildings plant waterways (including any pipelines for conveying water) roads pipelines reservoirs tanks pumping stations and other structures necessary to the full enjoyment thereof…”
  1. [39]
    The “reservations, covenants and conditions” of every lease granted under the Petroleum Act was dealt with by s 47.  The relevant conditions included covenants by the lessee to pay rent and royalties, as well as covenants to “work the land demised”, and “to use the land bona fide exclusively for the purpose for which it is demised…”.  Section 47(2) provided that:

“When an application for a lease has been approved and notwithstanding that the instrument of lease has not been executed and whether or not the applicant shall have entered upon the land as provided for in this Act, the applicant and the applicant’s assigns shall be deemed to have entered into the covenants and to have accepted the reservations and conditions provided for in subsection (1) and shall in all respects be bound thereby.”

  1. [40]
    Section 48 imposed on the lessee a requirement to expend a minimum sum of money per square kilometre on drilling for petroleum, consistent with the covenant to “work the land demised”.
  2. [41]
    The form of the petroleum lease granted in the present case reflects these statutory requirements, relevantly, conferring upon the holder of the lease:

“… the exclusive right to prospect for, mine, extract, recover, remove, and dispose of all petroleum in or under the demised land, with the right to construct and maintain thereon all works, buildings, plant, waterways (including any pipelines for conveying water), roads, pipelines, reservoirs, tanks, pumping stations, and other structures necessary to the full enjoyment thereof with, under and subject to the reservations hereinafter particularly mentioned and with, under and subject to the rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, reservations, and provisos referred to, contained or prescribed by the said Act [the Petroleum Act 1923] or any Acts amending the said Act…”[15]

  1. [42]
    Section 51(1) dealt with the use and occupation of a mining area on private or improved land, as follows:

“With respect to the use and occupation by a lessee of any of the land demised, every lessee shall –

  1. as against the owner or occupier only of any such land, but not otherwise, be and be deemed to be in occupation of only such area of such land as the lessee from time to time requires for effectively carrying on and adequately protecting all the mining operations and the storing, refining, transporting, and communication works in connection with all the lessee’s mining operations carried on or to be carried on from time to time or at any time during the term of the lease or any extension thereof, together with all rights and easements incidental to such occupation;
  1. during such time have the right personally or by agents or workers, to take and divert water from any natural spring, lake, pool, or watercourse situated on or flowing through any such land, and may use such water for any purpose necessary or incidental to the mining operations and to the bona fide occupation of the land leased; and may cut and use any timber on any such land for building purposes, construction works, firewood, or other necessary purposes; and may depasture on such land all stock used in connection with all such mining or other operations or used by workers or employees of such lessee; subject however to any conditions prescribed with respect to payment for water timber or agistment in cases where the making of such payment is deemed necessary;
  1. cause to be surveyed and securely fenced each surface area on any such land which the lessee requires so as to effectively carry on and adequately protect the lessee’s mining operations and works.”[16]
  1. [43]
    Section 64 dealt with trespass, as follows:
  1. “64(1)
    Every entry upon, occupation of, or interference with any land the subject of any permit or lease or authority to prospect shall be deemed a trespass unless such entry, occupation, or interference is authorised by the Minister in pursuance of the powers vested in the Minister under this Act.
  1. However, the owner or occupier of any private land or improved land may continue in occupation, use, and enjoyment of all such land, save and except such parts thereof as are required by such permittee or lessee or holder of the authority to prospect for mining purposes and construction work under this Act.
  1. Every permittee or lessee or holder of an authority to prospect may proceed in the Wardens Court for such trespass and for damages in respect thereof.”
  1. [44]
    It is clear from those provisions that the holder of a petroleum lease granted under the Petroleum Act at this time, was permitted, under the terms of the Act itself, to enter the land the subject of the lease. 
  2. [45]
    A parallel regime was introduced in 2004, with the enactment of the Petroleum and Gas (Production and Safety) Act 2004 (Qld). This Act did not repeal or amend the Petroleum Act 1923, with petroleum leases (and other tenures) granted under the 1923 remaining in their original form.
  3. [46]
    The Petroleum and Gas (Production and Safety) Act 2004 introduced the concept of an “entry notice”, required to be given by a petroleum authority holder to the owner and occupier of private land, before entering the land (ss 497, 499).  It was implicit in these provisions that the authority holder had a right of entry – the provisions did not contemplate seeking the owner or occupier’s agreement or consent to enter, they merely required notice of entry to be given.  There remained a requirement to address compensation before entering private land (s 536); but again, that was a condition imposed on the exercise of the right of entry otherwise conferred by the authority granted under the Act.
  4. [47]
    The requirement for an entry notice was subsequently also applied to petroleum tenures already granted under the 1923 Act, by amendments made by the Petroleum and Other Legislation Amendment Act 2004 (Qld).  As amended in 2004, s 78L of the 1923 Act provided that the new part 6 of the Act “applies for a 1923 Act petroleum tenure in relation to all private land unless –
    1. the tenure holder owns the land; or
    2. the tenure holder has the right, other than under this Act, to enter the land to carry out authorised activities for the tenure.”[17]
  5. [48]
    Section 78M imposed the requirement for an “entry notice” to be given.  Section 78R imposed an additional requirement, for a further notice to be given before carrying out authorised activities.  By s 78S, failure to give the further notice was an offence, but did not “prevent the authorised activities from being carried out on the land”.  Section 79U provided that a 1923 Act petroleum tenure holder must not enter private land to carry out an authorised activity unless, inter alia, they had the right “other than under this Act” to enter the land or each eligible claimant for the land was a party to a compensation agreement.  An “eligible claimant” may be either an owner or an occupier  of the relevant land (see s 79P) and the compensation may be for deprivation of the possession of the surface of the land, diminution of its value, diminution of the use made of the land or any cost or loss arising from the carrying out of the authorised activities (s 79P(5)).
  6. [49]
    Once again, the rights of the holder of a petroleum lease to enter land the subject of it are appropriately described as conferred “under the Act”.  Requirements such as giving an entry notice, or entering into a compensation agreement, are preconditions upon the exercise of the right.
  7. [50]
    The Petroleum and Other Legislation Amendment Act 2004 also amended the Petroleum Act 1923 by adding “general mandatory conditions” applying to any “1923 Act petroleum tenure holder”.  This included, as at 2004, an obligation to prevent the spread of declared pests (s 74X).  
  8. [51]
    In 2014 (around the time the current holders became the holders of PL 94), the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) was enacted.  One of the purposes of this Act was to consolidate particular provisions common to each of the “Resource Acts”, which includes the Petroleum Act 1923 (s 9).  A lease granted under the Petroleum Act 1923 is a “resource authority” for the purposes of the Common Provisions Act (s 10) and the area to which the lease (authority) relates is the “authorised area” (s 11). 
  9. [52]
    As defined in schedule 2 to the Common Provisions Act, the “authorised activity” for a “resource authority” has the meaning given by the particular Resource Act under which the resource authority is granted – in this case, the Petroleum Act 1923.
  10. [53]
    Chapter 3 of the Common Provisions Act deals with land access.  Part 1, which contains only s 36, provides for a “land access code” to be made, by regulation.[18]  Section 16 of the Mineral and Energy Resources (Common Provisions) Regulation 2016 (Qld) makes, for s 36 of the Act, a land access code for all Resource Acts that:
    1. states best practice guidelines for communication between the holders of resource authorities and owners and occupiers of private land; and
    2. imposes on resource authorities mandatory conditions concerning the conduct of authorised activities on private land (s 16(1)).
  11. [54]
    Section 16(2) provides that the land access code consists of best practice guidelines for communication (said to be “stated in parts 1 and 2 of the document called ‘Land Access Code’ dated June 2023 and published by the department on its website”) and “schedule 1”.  Schedule 1 to the Common Provisions Regulation sets out the “mandatory conditions” concerning conduct of authorised activities on private land for, among others, a resource authority under the 1923 Act.  The mandatory conditions cover a number of things, under the following headings:[19] (4) induction training; (5) access points, roads and tracks; (6) livestock and property; (7) obligations to prevent spread of declared pests; (8) camps; (9) items brought onto land; and (10) gates, grids and fences.
  12. [55]
    Relevantly, section (7) “obligations to prevent spread of declared pests” provides as follows (and has done so since the Common Provisions Regulation was made, in 2016):
  1. “7
    Obligations to prevent spread of declared pests
  1. A relevant person must take all reasonable steps to ensure that, in carrying out authorised activities, the person does not spread the reproductive material of a declared pest.
  1. A relevant person must take all reasonable steps to ensure that, in entering or leaving land in the area of a resource authority, the person does not spread the reproductive material of a declared pest.
  1. Subsections (1) and (2) do not apply to the release of a declared pest authorised under the Biosecurity Act 2014 .
  1. A holder must ensure each person acting for the holder under a Resource Act washes down vehicles and machinery before entering a landholder’s land in the area of the resource authority, if the risk of spreading a declared pest is likely to be reduced by the washing down.
  1. The holder must keep a record (the wash-down record) of all wash-downs under subsection (4) carried out during the period in which the holder is allowed access to the landholder’s land.
  1. If asked by the landholder, the holder must give a copy of the wash-down record to the landholder.
  1. In this section –

declared pest means a plant or animal, other than a native species of plant or animal, that is—

  1. invasive biosecurity matter under the Biosecurity Act 2014 ; or

Notes—

  1. 1
    See the Biosecurity Act 2014 , schedule 1, part 3 or 4 or schedule 2, part 2.
  1. 2
    See also the notes to the Biosecurity Act 2014 , schedules 1 and 2.
  1. controlled biosecurity matter or regulated biosecurity matter under the Biosecurity Act 2014.

reproductive material, of an animal or plant, means any part of the animal or plant that is capable of asexual or sexual reproduction.

Examples of reproductive material of an animal—

semen, egg, or part of an egg

Examples of reproductive material of a plant—

  1. 1
    seed or part of a seed
  1. 2
    bulb, rhizome, stolon, tuber or part of a bulb, rhizome, stolon or tuber
  1. 3
    stem or leaf cutting

wash down, a vehicle or machinery, means remove reproductive material from the vehicle or machinery using an appropriate cleaning process.”

  1. [56]
    Section 74X of the Petroleum Act 1923 now provides that a “1923 Act petroleum tenure holder” must comply with the mandatory provisions of the land access code to the extent it applies to the holder and must also ensure any other person carrying out an authorised activity for the holder also complies with those provisions.  Section 44 of the 1923 Act still confers the rights referred to at paragraph [38] above and s 51 still confers essentially the same rights of use and occupation referred to at paragraph [42] above.
  2. [57]
    Part 2 of chapter 3 of the Common Provisions Act deals with entry to private land for the purpose of carrying out an authorised activity and crossing or gaining entry to “access land” (that is, land required to be crossed or entered, in order to get to the authorised area (s 47)).  The first requirement under this part is to give an entry notice to owners and occupiers, before entering private land (s 39) – which reflects the obligation first introduced in 2004.  If a resource authority holder wants to enter private land to carry out an “advanced activity” (anything other than a preliminary activity (see ss 15A and 15B)), they must also have entered into a “conduct and compensation agreement” about that activity and its effects (s 43) – which also reflects the obligation under the earlier legislation (see paragraph [48] above).
  3. [58]
    Under the terms of s 83(1) of the Common Provisions Act, a conduct and compensation agreement may deal with:
    1. how and when the holder may enter the land for which the eligible claimant is an eligible claimant; and
    2. how authorised activities, to the extent they relate to the eligible claimant, must be carried out; and
    3. the holder’s compensation liability to the claimant or any future compensation liability that the holder may have to the claimant.
  4. [59]
    However, a conduct and compensation agreement cannot be inconsistent with the Common Provisions Act, the relevant Resource Act (here, the Petroleum Act 1923), a condition of the resource authority or a mandatory provision of the relevant land access code, and is unenforceable to the extent of the inconsistency.  So, for example, a conduct and compensation agreement could not prevent the holder of a petroleum lease from entering the land and exercising the rights conferred by the Petroleum Act 1923.  But such an agreement could make provision for how the holder may enter the land, and how it may carry out the authorised activities, including in a manner that addresses biosecurity concerns.  If there is a dispute about the agreement, there are provisions in the Common Provisions Act to deal with this, starting with a “conference with an authorised officer” and ending with a proceeding in the Land Court.
  5. [60]
    The applicants and the respondent entered into conduct and compensation agreements, in June 2016; those agreements do not appear to have been renewed or replaced more recently.
  6. [61]
    The legislative scheme is complex.  However, the relatively brief summary of it set out above, taken together with the meaning of the words “under an Act”, suffices to demonstrate that the respondent’s submission, that it is “permitted, under an Act, to enter” the relevant land, is correct and should be accepted.  The right of entry is conferred under the Petroleum Act 1923, in the sense that that legislation is the source of the power for the petroleum lease, and which confers on the holder(s) the right of entry.  The exercise of the right is regulated, among other things, by the Petroleum Act 1923 (as amended), the Common Provisions Act and Regulation (including the land access code).  That the exercise of the right is conditional on certain things does not detract from or negate the conclusion that the respondent is permitted, under an Act, to enter the relevant land.
  7. [62]
    It follows that the answer to the question:

“On the assumption that the applicants:

  1. are a registered biosecurity entity; and
  2. have made a biosecurity management plan under s 94G(1) of the Regulation; and
  3. have complied with s 94G(4) of the Regulation,

is the respondent required by s 94H of the Biosecurity Regulation to comply with the applicants’ biosecurity management plan when entering and working on the applicants’ land?”

is no.

  1. [63]
    Paragraph 1A of the amended originating application will therefore be dismissed.
  2. [64]
    This conclusion does not exclude the requirement which otherwise arises under the Biosecurity Act for an entity, such as the respondent, to comply with the “general biosecurity obligation”.  This conclusion simply means that the respondent is not required to do so by complying with the measures set out in the applicants’ biosecurity management plan.
  3. [65]
    It seems appropriate that costs should follow the event, so that the appropriate order is that the applicants pay the respondent’s costs of the hearing of paragraph 1A of the amended originating application.  However, since both parties did not make submissions about this at the time of the hearing, I will give them an opportunity to be heard at the time of delivering these reasons.

Footnotes

[1]The term “biosecurity matter” is broadly defined in s 15 of the Act.

[2]Underlining added.

[3]Although the applicants’ submissions, at [3], stated that the tenure holders also hold mining leases over the applicants’ properties, there is no evidence about these mining leases.  The evidence relied on refers only to PL 94.  Accordingly, I have limited my consideration to such access rights as are held by the holders of PL 94.

[4]R v A2 (2019) 269 CLR 507 at [32]-[37]; see also s 14A(1) of the Acts Interpretation Act 1954 (Qld).

[5]See the definition of “biosecurity matter” in s 15 of the Act.

[6]A biosecurity “carrier” is defined in s 17 of the Act to mean any animal or plant or any other thing (a) capable of moving biosecurity matter attached to or contained in the animal, plant or thing [including a human] from one place to another, or (b) containing biosecurity matter that may attach to or enter another animal or plant or thing.

[7]As defined in s 16 of the Act, a “biosecurity risk” is a risk of any adverse effect on a biosecurity consideration caused by, or likely to be caused by (a) biosecurity matter; or (b) dealing with biosecurity matter or a carrier; or (c) carrying out an activity relating to biosecurity matter or a carrier.

[8]Defined by reference to a code of practice made under a regulation under chapter 5, part 1 of the Act.

[9]Underlining added.

[10]Explanatory notes to the Biosecurity and Other Legislation Amendment Regulation 2019, at p 4.

[11]Explanatory notes to the Agriculture and Other Legislation Amendment Bill 2019, at p 26.

[12]See s 6 of the Acts Interpretation Act 1954 (Qld).

[13]See also the earlier Court of Appeal decision in Eckersley v Medical Board of Qld [1996] QCA 528 at 18 and Griffith University v Tang (2005) 221 CLR 99 at [78] and [89]. Underlining added.

[14]Which is taken to be reprint no. 3, reprinted as in force on 3 June 1996 (and including amendments up to Act No. 1 of 1996, assented to on 18 April 1996).

[15]Affidavit of Sheehy, commencing at p 96 of the exhibits.

[16]Underlining added.

[17]Underlining added.

[18]Provision was first made for a “land access code”, by s 24A of the Petroleum and Gas (Production and Safety) Act 2004 (enacted in 2010, by the Geothermal Energy Act 2010).

[19]The mandatory conditions start at heading numbered 4, with headings 1, 2 and 3 dealing with introductory matters.

Close

Editorial Notes

  • Published Case Name:

    Lang v Westside Corporation Pty Ltd

  • Shortened Case Name:

    Lang v Westside Corporation Pty Ltd

  • MNC:

    [2024] QSC 190

  • Court:

    QSC

  • Judge(s):

    Bowskill CJ

  • Date:

    26 Aug 2024

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Council of the Shire of Sarina v Dalrymple Bay Coal Terminal Pty Ltd[2002] 1 Qd R 548; [2001] QCA 146
3 citations
Jump To
Cite 1 - [2001] QCA 146
Cite 2 - [2001] QCA 146
Cite 3 - [2002] 1 Qd R 548
Eckersley v Medical Board of Queensland[1998] 2 Qd R 453; [1996] QCA 528
3 citations
Jump To
Cite 1 - [1996] QCA 528
Cite 2 - [1996] QCA 528
Cite 3 - [1998] 2 Qd R 453
Griffith University v Tang (2005) HCA 7
1 citation
Jump To
Cite 1 - (2005) HCA 7
Griffith University v Tang (2005) 221 CLR 99
2 citations
Jump To
Cite 1 - (2005) 221 CLR 99
Cite 2 - (2005) 221 CLR 99
R v A2 [2019] HCA 35
1 citation
Jump To
Cite 1 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
The Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
1 citation
Jump To
Cite 1 - (1985) 157 CLR 290

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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