Supreme Court provides guidance on landholder biosecurity management plan exemption for Queensland resources sector

What you need to know

• In Lang v Westside Corporation Pty Ltd [2024] QSC 190, the Queensland Supreme Court held that a petroleum lease holder did not have to comply with the underlying landholder's biosecurity management plan because of an exemption in the Biosecurity Regulation 2016 (Qld).
• Under section 94H(2)(c) of the Biosecurity Regulation 2016 (Qld), a person entering, present at or leaving a management area for a biosecurity management plan does not have to comply with the plan if they are "required or permitted, under an Act, to enter the management area".
• The Supreme Court held that the Petroleum Act conferred a right of entry to the petroleum lease land, triggering the exemption in section 92H(2)(c), and the resource authority holder did not have to comply with the landholders' biosecurity management plan.
• However, the Court noted that resource entities are still required to comply with the "general biosecurity obligation" under section 23 of the Biosecurity Act 2014 (Qld).

Landholders argued resource authority holder should comply with biosecurity management plan

The landholders owned three rural properties within the area of a petroleum lease granted under the Petroleum Act 1923 (Qld). Westside Corporation, as the relevant operator of the petroleum lease, was authorised to carry out activities on the landholders' properties.

The landholders were a registered biosecurity entity under section 141 of the Biosecurity Act 2014 (Qld), because they kept cattle on their properties. Under section 94G of the Biosecurity Regulation, they had made a biosecurity management plan for their properties and had communicated the contents and provided a copy of the plan to Westside Corporation.

The landholders argued that Westside Corporation should be required to comply with their biosecurity management plan in order to enter and work on their land. Westside Corporation argued that it did not need to, because it was permitted to enter the relevant area "under an Act". Namely, under the Petroleum Act.

How did the Court interpret the exemption?

The Court firstly considered the meaning of the phrase "under an Act". This phrase was considered by the Court of Appeal in Council of the Shire of Sarina v Dalrymple Bay Coal Terminal Pty Ltd [2001] QCA 146, which construed the phrase as "any permit granted pursuant to a power conferred by an Act giving to the grantee a right of occupancy".

Adopting this reasoning, the Court concluded that "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."

Westside Corporation contended it was "permitted, under an Act" to enter the area of the landholders' biosecurity management plan as it held a right to enter the area under its petroleum lease, and the source of power for that right was the Petroleum Act. The question for the Court was therefore the proper construction of the relevant sections of the Petroleum Act and associated legislation governing the exercise of rights under the petroleum lease.

The Court summarised the legislative scheme and then agreed with Westside Corporation's submission that it was "permitted, under an Act, to enter" the relevant land. It held that:

• the Petroleum Act was the source of power of the petroleum lease, and conferred on the holder(s) the right to enter the land the subject of the lease;
• the exercise of this right of entry was regulated, among other things, by the Petroleum Act (as amended), and the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) and the Mineral and Energy Resources (Common Provisions) Regulation 2016 (Qld). They introduced requirements, such as giving an entry notice or entering into a conduct and compensation agreement, as preconditions upon the exercise of the right of entry conferred "under the Act";
• however, the fact that the exercise of the right of entry was conditional on certain things did not "detract from or negate the conclusion that Westside Corporation is permitted, under an Act, to enter the relevant land".

As a result of the above construction, the Court held that Westside Corporation was not required by section 94H of the Biosecurity Regulation to comply with the landholders' biosecurity management plan when entering and working on the relevant land.

Ongoing requirement to comply with the "general biosecurity obligation"

Nonetheless, the Court emphasised that entities such as Westside Corporation were still required to comply with the "general biosecurity obligation" arising under section 23 of the Biosecurity Act. That obligation requires entities dealing with biosecurity matters or carriers, or carrying out an activity, to "take all reasonable and practical measures to prevent or minimise" biosecurity risks if they know or ought reasonably to know that the biosecurity matter, carrier or activity poses or is likely to pose a biosecurity risk.

In this case, Westside Corporation remained subject to this general obligation despite the exemption from complying with the landholders' biosecurity management plan.

However, we are aware that in some instances, parties may negotiate provisions within conduct and compensation agreements that otherwise contractually bind resource entities to comply with a landholder's biosecurity management plan.

Other Author: Brigid Horneman-Wren, Lawyer.