Compensation for access to airports for defence‑related purposes and for emergency or disaster relief
251 Compensation for access to airports for defence‑related purposes and for emergency or disaster relief
Designated agency in relation to a notice
A notice under subsection 250(1) must specify a Commonwealth agency as the designated agency in relation to the notice.
If a notice under subsection 250(1) relates to any of the following purposes:
the defence of Australia;
the operation of the Australian Defence Force in connection with the defence of Australia;
the operation of an aircraft owned by the armed forces of a foreign country, where the operation is in accordance with an arrangement approved by the Australian Defence Force;
the notice must specify the Defence Department as the designated agency in relation to the notice.
If a notice under subsection 250(1) relates to the management of an emergency or a disaster (whether natural or otherwise), including the management of an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates the notice may specify:
the Defence Department; or
any other Commonwealth agency that is involved in the management of the emergency or disaster;
as the designated agency in relation to the notice.
Liability for loss or damage
If:
a notice under subsection 250(1) is given to an airport‑operator company for an airport; and
a person covered by one of the following subparagraphs suffers loss or damage in consequence of the giving of access, or the giving of priority of access, in accordance with the notice:
an airport‑operator company for the airport;
a person who is a lessee of the airport‑lessee company for the airport;
a person who holds a licence relating to an airport lease for the airport;
the Commonwealth is liable to pay to the person an amount equal to the loss or damage.
If:
the person; and
the head of the designated agency in relation to the notice (on behalf of the Commonwealth);
do not agree on the amount of loss or damage mentioned in subsection (4), the person may recover the amount of the loss or damage by action against the Commonwealth in a court of competent jurisdiction.
In determining the amount of any loss or damage mentioned in subsection (4), regard must be had to anything done in mitigation of the loss or damage (including any remedial work).
A payment under subsection (4) or (5) is to be made out of amounts appropriated by the Parliament for the purposes of the designated agency in relation to the notice.
Compensation—constitutional safety‑net
If:
apart from this section, the operation of section 250 would result in the acquisition of property from a person otherwise than on just terms; and
the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
If the Commonwealth and the person do not agree on the amount of the compensation mentioned in subsection (8), the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Section 70 of the Defence Act 1903
This section has effect despite anything in section 70 of the Defence Act 1903.
Definitions
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Commonwealth agency means:
a Department; or
an agency or instrumentality of the Commonwealth.
designated agency, in relation to a notice, means the Commonwealth agency specified in the notice as the designated agency in relation to the notice.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
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