Article from Brisbane times:
They can’t stop the Intermodals at Moorebank also:
Premier can’t stop second airport, say legal experts
April 25, 2012
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THE Premier, Barry O’Farrell, is powerless to stop a second airport being built in Sydney if the federal government decides to proceed, say constitutional law experts who believe it is simply a matter of political will.
Professor George Williams, from the University of NSW, and Professor Anne Twomey, from the University of Sydney, say it is clear the federal government has the power to build a second airport, despite the objections of the NSW government.
Mr O’Farrell has ruled out a second airport in the Sydney basin and favours using Canberra Airport with a high-speed rail link.
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Following the release in March of a joint federal-state report on future aviation needs, Mr O’Farrell’s opposition was criticised by the federal Minister for Transport and Infrastructure, Anthony Albanese, who believes an airport should be built at Wilton, in south-west Sydney.
Mr Albanese has said construction of a second Sydney airport is ”a national economic issue” and that the federal government ”will be constrained in terms of planning and other issues if NSW refuses to co-operate”.
Professor Williams said a unanimous decision of the High Court in 1992 in relation to Botany Council’s opposition to a third runway at Sydney Airport made it clear that the federal government could override state planning laws.
”It held that the Commonwealth … can specifically deny the force of things like planning legislation or any other impediment that might be in its way,” he said.
Section 109 of the Constitution says that where Commonwealth and state laws overlap, the Commonwealth law will prevail, Professor Williams said.
This meant the decision about whether to build a second Sydney airport was ”a political question, ultimately. When it comes to the law the Commonwealth has broad power in this area, as that third runway case shows”.
Professor Twomey said the Commonwealth ”absolutely” had the power to build a second airport in Sydney.
the federal government had a choice of powers it could invoke to override the NSW government, she said.
She highlighted section 52 of the Constitution, which gives the Commonwealth ”exclusive power” over areas it acquires for public purposes.
”If it did that for the public purpose of an airport, then it would have exclusive legislative power over it,” Professor Twomey said.
”[It is] quite clear that the Commonwealth would have power to construct and run a second airport in Sydney if it wished to do so. The issue really is one of political will.”
Despite this, Mr Albanese said NSW government approvals were needed.
”Ultimately, the state government’s zoning and planning, land transport and environmental approvals are required for a second airport and the infrastructure and land use around that airport,” he said.
”That is why we have made every effort to get the co-operation of NSW on this issue, including the establishment of the joint study.”
The federal-state study says planning for a second airport must begin immediately. It identifies Wilton as the only viable site apart from Badgerys Creek, which has been ruled out by both sides of federal politics.
If Sydney’s future aviation needs cannot be met, the potential impact to the Australian economy could total $59.5 billion in foregone expenditure and $34 billion in foregone gross domestic product by 2060, the report says.