Supreme Court clarifies exemption for resource companies on biosecurity plans

Biosecurity is an important issue for landholders and resource authority holders alike.

Regulation 94H of the Biosecurity Regulation 2016 (Qld) requires a person to comply with a biosecurity management plan (BMP) that applies to private land (subject to various conditions¹). However, that requirement does not apply if the person is permitted or required, under an Act, to enter the land.

Recently, HopgoodGanim Lawyers acted successfully in the first Supreme Court decision² to consider the interpretation of regulation 94H and whether resource authority holders are required to comply with landholders’ biosecurity management plans.

The decision confirms that people entering private land pursuant to a petroleum lease issued under the Petroleum Act 1923 (Qld) (1923 Act) are exempt from the requirement to comply with a landholder’s BMP, because their entry is permitted by the 1923 Act.

The background

The applicants were the landholders of three rural properties on which they ran cattle. Each property was within the area of a petroleum lease granted under the 1923 Act.

The landholders were a registered biosecurity entity and had developed a BMP that applied to people entering their land. A dispute arose regarding the resource company’s obligation to comply with the landholders’ BMP. The landholders sought a declaration that the resources company was required to comply with their BMP pursuant to regulation 94H. The resources company argued that it was exempt from that requirement because it was “permitted” to enter the land “under an Act”.

The applicant’s arguments

Regulation 94H relevantly 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.

(2) However, subsection (1) does not apply if—

…

(c) the person is required or permitted, under an Act, to enter the management area.

In seeking the declaration the landholders argued that:

1. the words “required” and “permitted” were intended to refer to animal welfare inspectors entering premises under the Animal Care and Protection Act 2001 (Qld); and
2. the resources company was not permitted to enter the land “under an Act”, because the source of its right of entry was the petroleum lease itself, not the 1923 Act.

The decision

In dealing with the first issue, her Honour Chief Justice Bowskill found no rationale for limiting the exception in regulation 94H to animal welfare inspectors.

The second issue turned on the proper construction of the legislative scheme governing the grant of and exercise of rights under the petroleum lease – in this case, the 1923 Act and the provisions of the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act) and associated regulations.

Her Honour held that the right of entry was conferred under the 1923 Act, in the sense that that legislation is the source of the power for the petroleum lease, and which confers the right of entry. The exercise of the right is regulated by, among other things, the 1923 Act and the MERCP Act and associated regulations. However, the fact that the exercise of the right is conditional on certain things (e.g. the giving of notice and the payment of compensation) does not change the conclusion that access to the relevant land is permitted under an Act.³

On that basis, her Honour held that the resources company was “permitted, under an Act” to enter the land of the subject of the petroleum lease⁴ and was not required to comply with the landholders’ BMP in doing so.

It is important to note two things about the decision:

1. the decision was based on a petroleum lease under the 1923 Act. Whilst it comments on the Petroleum and Gas (Production and Safety) Act 2004 (Qld), it does not specifically contemplate petroleum leases under that Act, mining leases under the Mineral Resources Act 1969 (Qld) or other forms of resources tenure. However, it is likely that the same outcome would apply;⁵
2. whilst the decision means that people entering private land pursuant to a petroleum lease under the 1923 Act are not required to comply with a landholder’s BMP, they are still required to comply with their other biosecurity obligations, such as the general biosecurity obligation under the Biosecurity Act 2014 (Qld),⁶ obligations under the Land Access Code⁷ and any contractually agreed biosecurity obligations.⁸

Conclusion

The decision gives clarity to resources companies who are faced with navigating the “complex”⁹ legislative scheme regulating access to and authorised activities on private land, which include both general and proscriptive biosecurity obligations drawn from assorted Acts.

Whilst the decision confirms that people entering private land pursuant to a petroleum lease under the 1923 Act are exempt from complying with a landholders’ BMP, and are free to decide how best to meet their biosecurity obligations, resources companies should still consider whether compliance with a landholders’ BMP is a pragmatic way to comply with their biosecurity obligations.

^1. See Chapter 7 of the Biosecurity Act 2014 (Qld) and Chapter 5, Part 13 of the Biosecurity Regulation 2016 (Qld).
^2. [2024] QSC 190.
^3. [61] of the judgment.
^4. [44] of the judgment.
^5. For example, section 235 of the Mineral Resources Act 1989 (Qld) provides general entitlements for a holder of a mining lease, including to enter and be within the area of the mining lease and section 109 of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) provides that the lease holder may explore for and produce petroleum in the area of the lease.
^6. See section 23 of the Biosecurity Act 2014 (Qld) which broadly requires a person to take all reasonable and practical measures to prevent or minimise biosecurity risks when carrying out activities that they know, or ought to know, pose a biosecurity risk.
^7. For example, paragraph 7 of the Land Access Code sets out obligations to prevent the spread of declared pests.
^8. For example, weed management measures may be agreed as part of a Conduct and Compensation Agreement.
^9. [61] of the judgment.