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Federal Court of Australia |
Last Updated: 1 September 1998
V
MINISTER FOR RESOURCES AND ENERGY, COMMONWEALTH OF AUSTRALIA, ENERGY RESOURCES OF AUSTRALIA LIMITED AND NORTHERN TERRITORY OF AUSTRALIA
SUMMARY
In accordance with the practice of the Federal Court in some other cases of public interest, the Court has prepared this brief summary to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 186 of 1998 |
| BETWEEN: | YVONNE MARGARULA
APPELLANT |
|
AND: | MINISTER FOR RESOURCES AND ENERGY
First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
ENERGY RESOURCES OF AUSTRALIA LIMITED Third Respondent
NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent |
|
JUDGES: | BEAUMONT, LINDGREN AND EMMETT JJ. |
| DATE OF ORDER: | 21 AUGUST 1998 |
| WHERE MADE: | SYDNEY |
These proceedings concerned the validity of a mining lease granted in 1982 by the Northern Territory to the predecessor in title of Energy Resources Australia Ltd. The lease permitted the exploitation of deposits of uranium ore in lands at Jabiluka.
The appellant is the principal custodian of those lands by Aboriginal tradition. She challenged the power of the Northern Territory's Minister for Mines and Energy to grant the lease. The essence of the appellant's case was that neither the Northern Territory, nor the Territory's Minister, had any valid authority under any Commonwealth law to execute the lease, or to grant to any person any entitlement to mine uranium from the land in question.
Several issues were raised by the appellant. These included:
* The relationship between the operation of the Mining Act 1980 (a Northern Territory Act) and the Atomic Energy Act 1953 (a Commonwealth Act); in particular, whether the Atomic Energy Act 1955 permitted a law of the Northern Territory to grant a right in relation to uranium, and whether the Mining Act authorised the grant of a lease which was binding on the Commonwealth in relation to uranium.
* Whether the Northern Territory's Legislative Assembly had the power to deal with uranium, which was Commonwealth property; and whether the Mining Act interfered with the Commonwealth's right to maintain and enjoy its property in uranium.
* Whether, given the change in status of the Northern Territory following self-government, the way in which Commonwealth laws applied to the Territory also changed. In particular, whether the Mining Act was inconsistent with the Lands Acquisition Act (Cth), with the consequence that the Mining Act 1978 was not available to allow a Northern Territory Minister to grant the lease, and whether, because of the introduction of the Northern Territory (Self-Government) Act (Cth), the relevant provisions of the Atomic Energy Act 1980 still applied.
* Whether uranium constituted a "place" acquired by the Commonwealth for public purposes under s 52(i) of the Constitution. (If it did, the Commonwealth had exclusive power to make laws with respect to the place and the question would then arise whether the Mining Act was consequently beyond power.)
* Whether the Northern Territory (Self Government) Regulations were a valid exercise of executive authority by the Northern Territory Minister.
The Court has upheld the decision of the trial Judge, and the appeal has been dismissed.
MINES & MINERALS - validity of mining lease in prescribed substances - lease granted by Northern Territory pursuant to Mining Act (NT) - relationship between operation of Mining Act 1953 and Atomic Energy Act - whether, pursuant to Atomic Energy Act 1955 , a right in relation to a prescribed substance may be granted under a law of the Northern Territory - whether Mining Act authorised grant of lease binding on Commonwealth in respect of prescribed substance - whether Territory's Legislative Assembly had power to deal with Commonwealth property - whether it should be presumed that Territory's Legislative Assembly intended to confer on Minister administering Mining Act power to dispose of interests vested in Commonwealth - whether Mining Act inconsistent with Lands Acquisition Act - whether s 35(4) of Atomic Energy Act 1978 continued to apply after Northern Territory (Self-Government Act) - whether Commonwealth had executive authority to agree to the grant of the lease - whether prescribed substances constitute a "place" acquired by the Commonwealth for public purposes - if so, whether Mining Act 1901 consequently beyond power - whether Northern Territory (Self-Government) Regulations inconsistent with Northern Territory (Self-Government) Act.
Acts Interpretation Act - ss 38(1), 49A(1)
Atomic Energy Act 1953 - ss 35, 41
Lands Acquisition Act 1955 - ss 5AA, 51
Mining Act 1980 (NT) - ss 4, 60, 175
Northern Territory (Self-Government) Act 1978 - ss 6, 9, 57, 69, 70
Northern Territory (Self-Government) Regulations - reg 4
Allders International Pty Ltd v Commissioner of State Revenue (Vict.) (1996) 186 CLR 630 - cited
Baxter v Ah Way (1909) 8 CLR 626 - cited
Booth v Wyvill (1989) 85 ALR 621 - cited
Butler v Attorney-General (Vict.) [1961] HCA 32; (1961) 106 CLR 268 - cited
Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 - cited
Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 - cons.
Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342 - dist.
Gould v Brown [1998] HCA 6; (1998) 72 ALJR 375 - cited
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 - cited
Minister for Primary Industry v Davey (1993) 47 FCR 151 - cited
Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 - cited
Newcrest Mining (WA) v Commonwealth [1993] FCA 528; (1993) 46 FCR 342 - cons.
Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 - cons.
Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 71 ALJR 1254 - cited
Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330 - cited
South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 - cited
Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 - cons.
Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 - cited
The Queen v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535 - cited
The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 - cited
Turner v Owen [1990] FCA 358; (1990) 26 FCR 366 - dist.
Wake v NT (1996) 109 NTR 1 - cited
YVONNE MARGARULA V MINISTER FOR RESOURCES AND ENERGY, COMMONWEALTH OF AUSTRALIA, ENERGY RESOURCES OF AUSTRALIA LIMITED AND NORTHERN TERRITORY OF AUSTRALIA
NG 186 of 1998
JUDGES: BEAUMONT, LINDGREN AND EMMETT JJ.
PLACE: SYDNEY
DATE: 21 AUGUST 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 186 of 1998 |
| BETWEEN: | YVONNE MARGARULA
APPELLANT |
|
AND: | MINISTER FOR RESOURCES AND ENERGY
First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
ENERGY RESOURCES OF AUSTRALIA LIMITED Third Respondent
NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent |
|
JUDGES: | BEAUMONT, LINDGREN AND EMMETT JJ. |
| DATE OF ORDER: | 21 AUGUST 1998 |
| WHERE MADE: | SYDNEY |
ORDERS:
1. Appeal dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 186 of 1998 |
| BETWEEN: | YVONNE MARGARULA
APPELLANT |
|
AND: | MINISTER FOR RESOURCES AND ENERGY
First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
ENERGY RESOURES OF AUSTRALIA LIMITED Third Respondent
NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent |
JUDGES:
BEAUMONT, LINDGREN AND EMMETT JJ. DATE: 21 AUGUST 1998 PLACE: SYDNEY
INTRODUCTION
This is an appeal from orders made by a Judge of the Court dismissing proceedings which challenged the validity of a mineral lease ("the Lease") granted in 1982 by the Northern Territory of Australia ("the Territory"), the fourth respondent, to predecessors in title of Energy Resources of Australia Limited ("ERA"), the third respondent. The Lease permitted the exploitation of deposits of uranium ore in lands at Jabiluka ("the Lands"). Yvonne Margarula, the appellant and the applicant for relief at first instance, claimed to be the principal custodian of the Lands by Aboriginal tradition. There was no dispute that she had standing to sue. Nor was there any dispute about the material facts, all of which are documented. The matters in issue were questions of law. The appellant challenged the power of the Territory's Minister for Mines and Energy to grant the Lease. It is common ground that the Commonwealth Minister for Resources and Energy, the first respondent, and the Minister administering the Atomic Energy Act 1953 , did not grant any lease to ERA, or its predecessors, under that Act. In order to understand the issues in the appeal, it will be necessary to describe the factual background and the legislative context.
The subject property
Most of the leased land is comprised within NT Portion 2253. The fee simple estate in the land comprised within NT Portion 2253 is vested in the Jabiluka Aboriginal Land Trust and is Aboriginal land for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). This land ("the Jabiluka Project Land"), of about 6,758 ha., was granted to the Jabiluka Aboriginal Land Trust by the Governor-General on 25 June 1982. Reserved and excepted from the grant was, inter alia, a reservation to the Commonwealth of the right to minerals vested in the Commonwealth. By Memorandum of Transfer dated 21 July 1982, the Commonwealth transferred to the Territory its rights to minerals in upon or under NT Portion 2253, with the exception of prescribed substances within the meaning of the Atomic Energy Act 1953 , which were reserved to the Commonwealth.
The Lease
The Lease, described as MLN1, was granted to ERA's predecessors in title by the Territory's Minister for Mines and Energy pursuant to the Mining Act 1980 (NT) on 12 August 1982. The Territory "...grant[ed]... a lease of... [the] land [there] described... and [the] mines and deposits of uranium ore and other prescribed substances [see below] together with the minerals associated or combined therewith so that they must necessarily be mined in the mining of any such uranium ore or other prescribed substances in or under the leased land, together with the rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining, excepting and reserving out of this lease the rights of ingress, egress and regress hereinafter provided [see below]; to hold... the same for the term of... [42] years from the date hereof for the purpose of mining thereon for uranium ore and other prescribed substances but no other mineral or gold unless... associated or combined in the leased land with the uranium ore or other prescribed substances... and for all purposes necessary effectually to carry on such mining operations thereon...".
By cl 1(f), the lessees covenanted, "unless prohibited by law, to permit and protect completely the exercise of free ingress, egress and regress at all times by persons who reside in the Jabiluka Project Area [being the leased lands] or who are from time to time authorised in that behalf under the laws in force in the Territory, to, from and across the leased land except those areas which, because mining, treatment or transport operations are being specifically conducted on them and the presence of those persons on them will cause safety hazards to personnel, operations or equipment, are designated by the lessees as restricted areas;".
By cl 7(a), it was provided that "prescribed substance" means "prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth".
By this Act, as amended in 1978, it is provided that "prescribed substance" means (a) uranium, thorium, any element having an atomic number greater than 92 or any other substance declared by the Regulations to be capable of being used for the production of atomic energy or for research into matters connected with atomic energy; and (b) any derivative or compound of a substance to which (a) applies (s 5(1)). The Act binds the Crown in right of the Commonwealth and of the Northern Territory (s 6).
Part III of the Act (ss 34-43) deals with "Control of Materials" relevantly as follows:
* By s 34 (as amended in 1978), it is provided that the powers conferred by Part III shall be exercised (inter alia) - "(f) in relation to substances situated in or recovered from, or things done or proposed to be done in or in connection with, a Territory".
* Section 35 deals with the title of the Crown to prescribed substances in Territories, whether existing in their natural condition, or in a deposit of waste material obtained from an underground or surface working, on or below the surface of land, whether alienated from the Crown or not (s 35(1)).
* Section 35 applies to several kinds of "prescribed substances" as follows:
First, a substance at the commencement of the Act in April 1953 which was not the property of the Commonwealth immediately before 11 September 1946 (being the date of commencement of the Atomic Energy (Control of Materials) Act 1946 , is declared to have become the property of the Commonwealth on that date (s 35(2)).
(By s 6 of the 1946 Act, all prescribed substances were thereby declared to be the property of the Commonwealth, subject to any rights granted after the commencement of that Act, by or under the law of any Territory, with express reference to the substance, but to no other rights. The 1946 Act was repealed by the 1953 Act.)
Secondly, a substance which became a prescribed substance after the commencement of the 1946 Act which was not, immediately before the date on which it became a prescribed substance, the property of the Commonwealth, becomes, by force of the Act, the property of the Commonwealth on that date (s 35(3)).
* However, the title of the Commonwealth is subject to any rights granted after 10 September 1946, by or under a law of a Territory, with express reference to that substance, but to no other rights (s 35(4)). (Emphasis added).
* Section 36 imposes a duty to notify the Minister upon any person who discovers a prescribed substance. Section 37 empowers the Minister to obtain information in that connection.
* By s 38, as amended in 1978, provision is made for the control of prescribed substances by regulations made under the Act. The regulations may prohibit activities in this regard, except under a licence granted under this section. By s 38(5), it is provided that s 38 and the regulations shall not be construed as intended to exclude or limit the operation of any provision of a law of a Territory that is capable of operating concurrently with this section and the regulations.
The Northern Territory (Self-Government) Act 1978 and Regulations
The mining of uranium in the Territory was dealt with by Regulations made under this Act ("the Self-Government Act"). Before going to the Regulations, some of the provisions of the Act should be mentioned.
Part IV of the Act (ss 31-42) deals with "Administration".
The Office of Administrator is dealt with by s 32. By s 32(3), subject to the Act, the Administrator shall exercise and perform all powers and functions that belong to his office, or that are conferred on him by or under a law in force in the Territory, in accordance with the tenor of his Commission and (in the case of powers and functions other than powers and functions relating to matters specified under s 35) in accordance with such instructions as are given to him by the Commonwealth Minister.
The Executive Council of the Territory is established by s 33(1) to advise the Administrator in the Government of the Territory in relation to matters in respect of which the Territory Ministers have executive authority under s 35.
The transfer of functions to the Territory Executive is dealt with by s 35, which provides that the Regulations (made by the Governor-General under s 75 of the Act) may specify the matters in respect of which the Territory Ministers are to have executive authority.
Regulation 4(1) provides that, subject to Reg 4(2), the Territory Ministers are to have executive authority under s 35 in respect of the following matters (inter alia): "Mining and minerals...".
By Reg 4(2), matters specified in Reg 4(1)(a) shall not be construed as including or relating to: "the mining of uranium or other prescribed substances within the meaning of the Atomic Energy Act 1953 ...". The application of Reg 4(2) is dealt with by Reg 4(6) (see below).
Additional executive authority under s 35 is conferred by reg 4(5)(b) and (f) which provides that the Territory Ministers are also to have such authority in respect of (inter alia) the following:
"(b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred by or under another Act in force in the Territory, or by or under an enactment or an agreement or arrangement referred to in paragraph (f), on the Administrator or a Minister or officer of the Territory;
...
(f) agreements and arrangements between the Territory and the Commonwealth..., including the negotiation and the giving effect to any such agreement or arrangement by the Territory by way of enactment, regulations or other instrument, or otherwise;".
Regulation 4(6) provides that Reg 4(2) does not apply to a matter specified in Reg 4(1) if the matter is also included in the matters specified in Reg 4(5).
Other provisions of the Self-Government Act 1980 were referred to in argument and are mentioned below.
The provisions of the Mining Act (NT)
Section 60(1)(a) of this Act authorises the Territory Minister, subject to the Act, in his or her discretion, to grant to an applicant a mineral lease for, inter alia, the mining of the mineral or minerals specified in the lease document.
In this Act, "mineral" is defined to mean, inter alia, a substance from time to time prescribed as a mineral (s 4(1)).
Section 175 deals with prescribed substances under the Atomic Energy Act. Notwithstanding anything elsewhere contained in the Mining Act or its Regulations, in respect of such a substance, the Territory Minister (a) shall exercise his powers in accordance with, and give effect to, the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act; and (b) shall not exercise his powers otherwise than in accordance with such advice (s 175(1)). (Emphasis added).
The 1982 Agreement between the Commonwealth and the Territory in relation to mining uranium
This Agreement, entered into on 8 February 1982, and partially amended on 12 May 1982, materially provided as follows:
* Whenever the Mining Act applies in relation to prescribed substances, the Territory Minister shall exercise or perform the duties, powers, functions and authorities imposed or conferred on the Minister by or under the Mining Act (cl 2).
* In all matters under the Mining Act relating to prescribed substances situated in the Territory, the Territory Minister:
(a) shall exercise or perform his duties, powers, functions and authorities in accordance with, and give effect to, the advice of the Commonwealth Minister, and
(b) shall not exercise or perform his duties, powers, functions and authorities otherwise than in accordance with that advice (cl 3).
* The Territory Minister shall ensure that, in any mineral lease for the mining of a prescribed substance granted under the Mining Act, there is specified, in terms approved by the Commonwealth Minister, all relevant matters relating to the determination, variation, assessment, and the royalty to be paid (cl 4(b)).
THE DECISION AT FIRST INSTANCE
At first instance, the appellant's application sought the following substantive relief:
"1. An order prohibiting [the Minister] from granting approval in writing to [ERA] pursuant to Reg. 11 of the Customs (Prohibited Exports) Regulations, to export... goods obtained by mining carried out on land held by the Jabiluka Aboriginal Land Trust...
2. A declaration that the [Commonwealth of Australia] is the owner of the uranium and other prescribed substances... within the land at Jabiluka... and has granted no valid interest to any other person or body in respect to the uranium."
The appellant's statement of claim then made the following allegations:
"3. ...ERA is the lessee under a mineral lease... which... purports to grant to ERA an interest in uranium ore and other prescribed substances in the Jabiluka Lands (the uranium).
4. The uranium is a prescribed substance... and all interests in respect of the uranium were at all material times and now remain vested in the [Commonwealth] pursuant to s.35 of the [Atomic Energy Act 1980 ].
5. No interest in the uranium has been granted, transferred or assigned by the [Commonwealth] by an any instrument or law to the Northern Territory of Australia, to ERA nor to its predecessors in title under the mineral lease.
...
8. On 12 August 1982, the Northern Territory of Australia purported to grant to the predecessors in title of ERA a lease...
9. Neither the Northern Territory of Australia nor its Minister for Mines and Energy had at the date of execution of the mineral lease... any valid authority under... any.... law of the Commonwealth to execute the purported lease, nor to grant to any person any entitlement to mine and remove the uranium from the Jabiluka Lands.
10. ERA does not have any valid lease or authority to mine and remove the uranium from the Jabiluka Lands.
...
13. The [Minister] has no power or authority to grant to ERA an approval in writing to export from Australia the uranium which is vested in the [Commonwealth] and to which ERA has no lawful right, title or interest."
The substance of the appellant's case at the trial was that neither the Territory, nor its Minister, had any valid authority under the Atomic Energy Act, or any other law of the Commonwealth, to execute the Lease, nor to grant to any person any entitlement to mine and remove the uranium from the land comprised within NT Portion 2253. On behalf of the appellant, several complex arguments were advanced in support of this contention, some of which are no longer pursued; and some new arguments were put before us.
His Honour rejected the challenge to the validity of the Lease (Yvonne Margarula v Minister for Resources and Energy, Sackville J, 11 February 1998, unreported). The primary Judge held that there was nothing in the Atomic Energy Act to suggest that rights could not be granted in respect of prescribed substances under Territory law. His Honour further held that the Mining Act (NT) was capable of operating so as to enable the Territory Minister to grant a lease in respect of prescribed substances; and that the Territory Minister had executive authority to execute the Lease on behalf of the Territory.
The argument before us on the appeal was limited to the allegations made in paras 9 and 10. However, the final assertion in para 13, which supports the relief sought in the application, is not necessarily dependent upon the validity of the lease but could be supported by the allegations in paras 4 and 5 which are true. However, in the course of pre trial procedures, the primary Judge apparently noted an agreement between the parties that the questions for determination of the proceedings (other than certain estoppel questions, which were deferred) were limited to the seven questions stated by his Honour as follows:
"(a) Whether the entitlement to mine, recover and remove prescribed substances from NT Portion 2253 [the Jabiluka Trust Land] could only be granted by the Commonwealth of Australia under the Atomic Energy Act 1953 (Cth)?.
(b) Whether the Mining Act 1980 (NT) was a law of the Northern Territory of Australia capable of operating concurrently with the Atomic Energy Act 1953 so as to entitle the Minister for Mines and Energy of the Northern Territory of Australia to grant a lease of and a right to mine prescribed substances?
(c) Whether the Atomic Energy Act as in force on 12 August 1982 on its true construction excluded the operation of a law of a Commonwealth Territory purporting to grant or authorise the grant of a leasehold mining interest in uranium or other `prescribed substance' within the meaning of that Act, in such a Territory?
(d) Whether the Northern Territory of Australia was entitled to grant a lease conveying a proprietary interest in prescribed substances within the [Jabiluka Trust Land] which are the property of the Commonwealth of Australia and not the property of the Northern Territory of Australia?
(e) Whether the Northern Territory (Self-Government) Act 1978 (Cth) on its true construction conferred legislative power on the Legislative Assembly of the Northern Territory with the assent as provided by that Act to enact legislation enabling or authorising the grant of a leasehold mining interest in uranium or other prescribed substance in the Northern Territory?
(f) Whether the Northern Territory (Self-Government) Act 1978 (Cth) and the Northern Territory (Self-Government) Regulations on their true construction enabled the conferral of executive authority on the Minister for Mines and Energy of the Northern Territory to grant the Mineral Lease ML N1 dated 12 August 1982 in the circumstances set forth in paragraphs 17 to 20 inclusive of the Defence of [the Minister and the Commonwealth] and sub-paragraphs 5.6 to 5.9 inclusive of [ERA's] Defence?
(g) If the answer to question 2(f) is yes, whether such executive authority was conferred in the circumstances set forth in [those] paragraphs?"
It appears to have been accepted by the appellant that if those questions were answered unfavourably to her, the application should be dismissed. In any event, the appeal proceeded upon that assumption.
THE APPELLANT'S GROUNDS OF APPEAL
The appellant now appeals upon these grounds:
(1) Properly construed, s 60 of the Mining Act did not extend to the grant of a right to mine in relation to prescribed substances held in an estate in fee simple in the Territory; and in particular did not extend to the grant of the Lease.
(2) If, contrary to the appellant's construction, s 60 purported to authorise the Territory Minister to grant the Lease, then s 60 exceeded the legislative power conferred on the Territory's Legislative Assembly by the Self-Government Act. Alternatively, s 60 was invalid because exclusive legislative power with respect to prescribed substances (being places acquired by the Commonwealth for public purposes within the meaning of s 52(i) of the Constitution) was vested in the Commonwealth.
(3) If valid, s 60 of the Mining Act was not an enactment giving effect to an agreement within Reg 4(5)(b) and (f) of the Self-Government Regulations.
(4) Properly construed, the Mining Act did not confer the necessary executive authority on the Territory Minister to grant the Lease; alternatively, if the Act should be so construed, it was inconsistent with the limitation on executive authority imposed by Reg 4(2) of the Self-Government Regulations.
CONCLUSIONS ON THE APPEAL
It will be convenient to deal with the issues in the appeal in the sequence adopted in the appellant's written submissions.
(a) Scope of the Mining Act on its true construction
As has been noted, the question arises whether, on its proper construction, the Mining Act authorises the grant of a lease in relation to Commonwealth property. In this connection, the respondents rely upon, inter alia, the provisions of s 175 of the Mining Act. It will be recalled that s 175 provided that, in respect of a prescribed substance within the meaning of the Atomic Energy Act, the Territory Minister: (a) shall exercise his powers in accordance with, and give effect to, the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act; and (b) shall not exercise his powers otherwise than in accordance with such advice.
On behalf of the appellant it is submitted that the presumption that the Mining Act was not intended to bind the Crown in right of the Commonwealth meant that the Territory's Legislative Assembly did not intend to confer power on the Territory Minister administering the Mining Act to dispose of interests vested in the Commonwealth.
In our opinion, the Mining Act was clearly intended to bind the Crown in right of both the Commonwealth and the Territory. Section 60 of that Act authorised the grant by the Territory of a mineral lease for the mining of the mineral or minerals specified in the lease document. "Mineral" was defined (s 4(1)) so as to include a "naturally occurring... inorganic element or compound... obtainable from land by mining...". This would include a "prescribed substance" within the meaning of the Atomic Energy Act. In this context, s 175 specifically regulated the manner in which the Territory Minister was to exercise his powers in respect of these prescribed substances. Further, s 175 made specific reference to the Atomic Energy Act. That Commonwealth Act both vested the prescribed substances in the Commonwealth (s 35(2)) and made the Commonwealth's title "subject to any rights granted... by or under the law of a Territory of the Commonwealth, with express reference to that substance..." (s 35(4)). We agree with the first and second respondents' submission that s 175 could not be given any meaningful operation unless s 60 were interpreted as authorising the grant of a mineral lease binding on the Commonwealth in respect of a prescribed substance.
We also agree with the submission of the fourth respondent that the Territory's Legislative Assembly had power to legislate in relation to the Northern Territory in a manner that binds the Commonwealth and its property for the reasons given by French J in Newcrest Mining (WA) v Commonwealth [1993] FCA 528; (1993) 46 FCR 342 at 408-410 (cf. Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 per Wilcox J at 297; but see now, in the case of a State, Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 71 ALJR 1254 at 1269-70, 1275-6). Even if there were any limit on the legislative power in the Territory to deal with Commonwealth property without its consent, the Commonwealth has evidenced its consent here, conditionally at least, in the provisions of s 35(2) and (4) of the Atomic Energy Act and of Reg 4(1), (2)(a), (5) and (6) of the Self-Government Regulations (read in the light of s 35 of the Self-Government Act) (see, as to Commonwealth consent, Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330 per Mason J at 357).
The learned primary Judge said (at 55-56):
"It is open to the Commonwealth Parliament, in the exercise of the power conferred by s 122 of the Constitution, to empower a Territory legislature to enact legislation creating or authorising the creation of rights adverse to the Commonwealth's title to land or minerals in the Territory. As I have explained, ss 35(4) and 41(4) of the Atomic Energy Act, read with s 6 of the Self-Government Act, had this effect in relation to prescribed substances vested in the Commonwealth. In particular, s 35(4) of the Atomic Energy Act specifically removed any barrier that otherwise might have prevented the Territory legislature granting rights adverse to the Commonwealth's title, provided the Territory legislation was `with express reference to [prescribed substances]'. In those circumstances, in my opinion, the conferral of plenary legislative power by s 6 of the Self-Government Act was sufficient to give power to the Northern Territory legislature, subject to the constraints in the Self-Government Act (such as the Governor-General's power of disallowance), to enact a law granting or authorising the grant of rights in prescribed substances adverse to the property of the Commonwealth.
Whatever construction is adopted of the words `with express reference to that substance', in s 35(4) of the Atomic Energy Act, I think they are satisfied in the present case."
We agree.
His Honour went on to find that the events preceding the execution of the Lease showed that the Territory Minister's powers were exercised in accordance with the advice and consent of the Commonwealth Minister. There was ample documentary evidence to justify that finding. The primary Judge said (at 56):
"If the words in s 35(4) of the Atomic Energy Act were intended to refer to legislation `with express reference to [prescribed substances]', the Mining Act 1980 satisfied that description. If the words were intended to refer to the grant of a lease itself, the Jabiluka Project Lease, satisfied the description. The Lease explicitly granted the lessees the right to mine uranium and other prescribed substances as defined in the Atomic Energy Act."
Again, we agree.
On behalf of the appellant it is submitted that it should not be presumed that the Legislative Assembly did intend to confer on the Minister administering the Mining Act power to dispose of interests vested in the Commonwealth. To do so, the argument runs, would have been for the Territory to "arrogate" to itself a power to dispose of Commonwealth property, a title to which was expressly reserved by s 69(4) of the Self-Government Act; and, the submission runs, implicit in that provision is a constraint on the power of the Territory to legislate for a contrary result.
For reasons we give later, we have difficulty accepting the argument.
Section 69 of the Self-Government Act deals with transfers of property from the Commonwealth to the Territory. All interests of the Commonwealth in land in the Territory, other than interests referred to in s 69(5), are, by force of s 69, vested in the Territory (s 69(2)). On, or as soon as practicable after, the date when a matter is specified under s 35, the Commonwealth Minister shall transfer or cause to be transferred to the Territory, inter alia, certain limited interests in land (not minerals) held by the Commonwealth, being interests that, in the Minister's opinion, were so held for the purposes of the Commonwealth in connection with that matter (s 69(5)). We will refer to s 69(4) below.
Section 70 deals with the acquisition of certain land by the Commonwealth vested in the Territory under s 69(2). The Commonwealth Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by s 69(2) be acquired from the Territory by the Commonwealth (s 70(1)). Upon acquisition of an interest by the Commonwealth, all interests held from the Territory are, by force of s 70, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory (s 70(6)).
Section 69(4) provides:
"(4) All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances within the meaning of the Atomic Energy Act and... regulations...) are, by force of this section, vested in the Territory on that date."
In support of this submission, the appellant relies upon observations as to the effect of ss 69 and 70 by Black CJ and Foster J in Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 (at 182) that they should not be characterised "as mere conveyancing provisions", and that, in passing s 70, the legislature -
"...was evincing a legislative intention of providing exhaustively for the rights and obligations of the Commonwealth in respect of re-acquired lands, and of persons holding previously acquired interests in those lands. It was not intended that the Northern Territory legislature would thereafter be competent to deal with those lands or those interests by its own legislation under s 6..."
However, as the primary Judge correctly pointed out in the present matter, these observations must now be considered in the light of the remarks made by Gummow J (with the agreement of Toohey, Gaudron and Kirby JJ) in Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 (at 1405) that ss 69 and 70 -
"...were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57 [of the Self-Government Act 1946 ]. Rather their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the Self-Government Act."
The primary Judge went on to say (at 53-54):
"Section 69(4) of the Self-Government Act vested in the Territory all Commonwealth interests in minerals, subject to an exception for prescribed substances. The sub-section was enacted against the background of an established legislative regime, whereby the Commonwealth's property in prescribed substances co-existed with Territorial legislation authorising the creation of rights in relation to those substances. The exception in s 69(4) preserved the position obtaining prior to self-government, namely, that the Commonwealth retained property in prescribed substances by force of the Act 1901 and the Atomic Energy Act. Prior to self-government... the Commonwealth's title to prescribed substances was subject to rights granted under Territory laws with express reference to those substances. This subjection flowed from the terms of s 35(4) of the Atomic Energy Act, which continued to apply after the Self-Government Act came into force. It was reinforced by s 41(4) of [that] Act."
Section 41 of the Atomic Energy Act authorised the mining of prescribed substances on behalf of, or in association with, the Commonwealth in certain circumstances. Except as provided by the regulations, this section shall not be construed as intended to exclude or limit the operation of any provision of a law of a State or Territory that is capable of operating concurrently with this section (s 41(4)).
His Honour proceeded to conclude (at 54) that -
"...there is no basis for attributing to Parliament the intention that s 69(4) withheld from the Territory legislature precisely that law-making authority in relation to prescribed substances as the Territory legislature had prior to self-government. Section 69(4) merely preserved the title of the Commonwealth in prescribed substances. Just as that title was subject to the law-making authority of the Territory prior to self-government, so it was thereafter."
It is contended for the appellant that this conclusion fails to take proper account of s 57 of the Self-Government Act.
We cannot accept this for the reasons we give below.
Section 57 deals with continuance of laws. Subject to the Act, all "existing laws" of the Territory have the same operation as they would have had if the Act had not been enacted, subject to alteration or repeal by or under an enactment (s 57(1)). An "enactment" means (a) a law passed by the Legislative Assembly under the Self-Government Act; or (b) an Ordinance continued in force under the Self-Government Act (s 4(1)). An "existing law" means (a) any law in force in the Territory immediately before the Act's commencing date, other than an Act or an instrument (not being an Ordinance or an instrument made under an Ordinance) made under an Act; or (b) an Ordinance then in force (s 57(3)). (Emphasis added).
It is true, as the appellant contended, that the operation of the Atomic Energy Act was not the subject of the operation of s 57(1): the word "Act" in s 57(3)(a) means an Act of the Commonwealth (see Acts Interpretation Act, s 38(1); The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 per Gibbs CJ at 403).
It is then said for the appellant that, even if it be accepted that s 35(4) of the Atomic Energy Act 1955 , as in force immediately prior to 1 July 1978, recognised that a right in relation to a prescribed substance might be granted under "the law of a Territory", that Act did not itself create such an authority. The appellant next says that after Self-Government, the status of the Territory changed, as did the manner in which the Commonwealth laws applied to the Territory. The argument instanced the amendment of provisions of the Lands Acquisition Act ("LAA"). Part VII of the LAA (ss 51-54) was concerned with "Dealings in Land Vested in the Commonwealth". Section 51 dealt with mining leases and licences. The Governor-General may authorise the grant of a lease or licence to a person to mine for metals or minerals on land, situate in a State, which is vested in the Commonwealth (s 51(1)). Subject to such exemptions and modifications as are prescribed, the laws of the State in which the land is situate relating to mining shall, so far as applicable, apply to a lease or licence under s 51 and to mining carried on under the lease or licence (s 51(2)).
Section 5(1) of the LAA provides that, unless a contrary intention appears, "land" includes an "interest in land"; and such an "interest" means (a) a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in connection with, the land.
The LAA was amended in 1978 by inserting s 5AA dealing with the application of the LAA to the Northern Territory, whereby a reference in the LAA to a State shall be read as including a reference to the Territory (s 5AA(a)).
The appellant submits that since, under the LAA, the authority to grant a mineral lease is vested in the Governor-General, and whilst it is possible (but unlikely) that the grant authorised by the Governor-General might include a grant made by another Australian polity, it would not be consistent with this provision for a grant to be authorised by a Commonwealth Minister or a Territory Minister. Accordingly, the argument runs, upon the introduction of s 5AA to the LAA, the provisions of the Mining Act 1985 became inconsistent with, or repugnant to, a Commonwealth law, namely the LAA. This inconsistency results in the Mining Act being unavailable after Self-Government to allow a Territory Minister to grant the Lease.
It is said, for the appellant, that this conclusion is also consistent with the view that s 57 of the Self-Government Act, at least by implication, does not permit the terms of s 35(4) of the Atomic Energy Act to continue to operate in relation to "a law of the Territory" so as to permit interests to be granted in the future under the Mining Act: either (a) there is an implied repeal of s 35(4); or (b) the phrase "the law of a Territory" in s 35(4) "had a meaning", as at the date of its enactment, which did not encompass laws of a territory where a separate polity had been established with a degree of independence, and with a status different from the Commonwealth's.
It follows, the argument goes, as a matter both of interpretation and of authority, that it is not appropriate to limit the operation of s 69(4) of the Self-Government Act, in its relation to s 6 in the manner adopted by the primary Judge. To the contrary, the correct approach is to give s 6 full and appropriate effect by reading it, in accordance with its opening words - "subject to this Act". If, as the High Court held in Newcrest, ss 69 and 70 were directed to the adjustment of rights between the Commonwealth and the new polity it created, then it cannot be that the Territory has the power to legislate inconsistently with the scheme of the Self-Government Act so as to vary the adjustment of rights effected by that Act.
We have difficulty accepting the appellant's arguments, both on the construction and the scope of the Mining Act and on the related suggestion of inconsistency or repugnancy. In our opinion, the approach taken by the primary Judge in this area was correct. As the first and second respondents have submitted, his Honour's conclusion that the observations of Black CJ and Foster J in Newcrest as to the operation of s 70(6) cannot apply to s 69(4) for three reasons:
(i) Unlike s 70(6), s 69(4) had a specific temporal operation - s 69(4) applied once and for all on 1 July 1978 to vest Commonwealth interests in minerals in the Territory, and the reservation of prescribed substances was no more than a reservation from the interests in minerals vested in the Territory at that time by force of the section. By contrast, s 70(6) had an ongoing effect - it continues, in a "transmogrified" form, certain interests in property following the re-acquisition of property from the Territory by the Commonwealth under s 70(4).
(ii) The reservation of prescribed substances by s 69(4) excludes prescribed substances entirely from the regime created by ss 69 and 70.
(iii) The terms of the reservation make clear that the provisions of the Atomic Energy Act were to continue to apply to prescribed substances in the Territory after the commencement of Self-Government on 1 July 1978, including the specific provision in s 35(4) making the Commonwealth's title to a prescribed substance "subject to any rights granted... by or under the law of a Territory, with express reference to that substance".
We further agree with his Honour that, whilst s 35(4) may not have been intended as an independent grant to the Territory of power to legislate for the grant of rights in prescribed substances, nonetheless, s 35(4) "removed a barrier" to the operation of a Territory law that otherwise might have arisen, authorising the grant of rights in prescribed substances in that Territory. Yet, as his Honour noted, any Territory law authorising the grant of such rights would have to find support in other legislation, for instance, the general assembly's power to make laws granted by s 6 of the Self-Government Act.
The appellant's argument that s 69(4) of the Self-Government Act had a limiting effect on the Territory's legislative power depends on a finding of repugnancy, and implied repeal by s 69(4), of s 35(4) of the Atomic Energy Act, something which, in the case of statutes in affirmative terms is "a very rare thing", since there is "a very strong presumption that the... legislature did not intend to contradict itself" (Butler v Attorney-General (Vict.) [1961] HCA 32; (1961) 106 CLR 268 per Fullagar J at 275-6; South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 171). As was submitted on behalf of the third respondent, it does not follow that a section which merely preserves the Commonwealth's retention of property in uranium beyond the grant of Self-Government makes it repugnant for the Territory to legislate with respect to uranium. Unlike s 70, which altered the source of mineral leases so that they were held from the Commonwealth, s 69(4) did not alter the ownership of prescribed substances. The root of the Commonwealth's title to prescribed substances continued to be s 35 of the Atomic Energy Act; and as s 35(4) expressly provided, that title was "subject to any rights granted... by or under a law of a Territory, with express reference to that substance, but to no other rights". Properly construed, the evident purpose of s 69(4) was to preserve the title of the Commonwealth in prescribed substances, and to ensure there was no implied repeal of s 35 of the Atomic Energy Act.
Although the appellant's argument referred to s 57 of the Self-Government Act, we agree with the first and second respondent's submission that s 57 was not needed in order to preserve the operation of s 35(4) of the Atomic Energy Act: s 35(4) continued to apply after the commencement of Self-Government of its own force; nor was it repealed, expressly or by implication, by any provision of the Self-Government Act. As the third respondent contended, nothing in s 57 prevents the continued operation of the Atomic Energy Act, or neutralises the intention evinced by ss 35(4) or 41(4) of that Act; they continue to have the same operation after Self-Government; and nothing in s 57 alters the inter-relationship between Commonwealth and Territory laws.
Further, in our view, there is no inconsistency between s 51 of the LAA (read with s 5AA) and s 60 of the Mining Act. Section 51 is clearly facultative and, in any event, should be read in the light of s 35(4) of the specific provisions of the Atomic Energy Act.
Moreover, as the third respondent argued, it appears that s 51 was intended to apply only in relation to land that is vested in the Commonwealth by virtue of the LAA, and to be concerned only with facilitating the exploitation of minerals on land vested in the Commonwealth. These lands were vested in the Jabiluka Aboriginal Land Trust under the Land Rights Act, and the prescribed substances are, or were, vested in the Commonwealth by virtue of s 35 of the Atomic Energy Act, subject to any rights granted under Territory laws; in any case, the authority given under s 51 is to grant a lease to mine "on" land, connoting, in our view, mining "on" land as such, and not mining on "an interest in land"; and the Commonwealth's special statutory interest in the prescribed substances under the Atomic Energy Act is not readily recognisable as a property law interest.
In short, as has been said, s 51 is purely facultative. Section 51(2) indicates that s 51 is not intended to cover the field or to exclude State or Territory laws. It is well established that the Commonwealth may confer upon a Territory the legislative or executive power to affect Commonwealth interests in property (see Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548; Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248).
In our opinion, there is no inconsistency between s 175 of the Mining Act and any Commonwealth legislation. As the third respondent submitted, s 175 does not, in its terms, purport to destroy or detract from the right of the Commonwealth to maintain or enjoy its property in uranium. To the contrary, its language imposes on the Territory Minister the imperative of acting only on the advice of the Commonwealth Minister; and the exercise of authority under s 175 is consistent only with Commonwealth ownership of prescribed substances.
(b) Commonwealth executive authority
In our opinion, the Commonwealth plainly had executive authority to (a) enter into the Agreement dated 8 February 1982 and (b) to agree to the grant of the Lease. The source of that authority is, of course, s 61 of the Constitution, confirmed specifically in this instance by the provisions of s 35 of the Atomic Energy Act, read with s 69(4) of the Self-Government Act.
(c) The Commonwealth's exclusive power to legislate with respect to "places acquired by the Commonwealth for public purposes" (Constitution s 52(i))
The appellant contends that because the Commonwealth held an estate in fee simple in the prescribed substances, they constituted a "place[] acquired by the Commonwealth for public purposes" within the meaning of s 52(i); and that since the Commonwealth has the exclusive power to make laws with respect to the place, the Mining Act is beyond power.
The appellant accepts that this argument cannot be pursued in this Court unless the High Court decision in Svikart, above, can be distinguished. But, in our view, it is difficult to see any basis for holding that it should be distinguished for present purposes. Brennan J there held (at 566) that s 52(i) did not include places in the Territory. Mason CJ, Deane, Dawson and McHugh JJ held (at 560) that s 52(i) simply confers on the Commonwealth Parliament a legislative power which is exclusive of the States.
In any event, as the first and second respondents submitted, there are other difficulties with the appellant's argument.
First, neither the land in respect of which the Lease was granted, nor or any part of it, was a s 52(i) "place" at the time of the grant of the Lease on 12 August 1982. By then, the fee simple in part of the land had been granted (on 25 June 1982) to the Jabiluka Aboriginal Land Trust under s 12 of the Land Rights Act, and the fee simple in the residue of the land the subject of the Lease had been transferred to the Territory on 21 July 1982. In each instance, the Commonwealth reserved to itself all right, title and interest in prescribed substances. Even if it could be assumed that the whole of the land had originally been acquired by the Commonwealth for a s 52(i) "public purpose", it ceased to be a "Commonwealth place" when it ceased to be within the ownership or possession of the Commonwealth before the grant of the Lease (cf. Allders International Pty Ltd v Commissioner of State Revenue (Vict.) (1996) 186 CLR 630 per McHugh, Gummow and Kirby JJ at 675).
Secondly, the appellant's argument assumes that the acquisition or retention by the Commonwealth of an "interest" in "land" which otherwise is owned in fee simple by another, can be characterised as a "Commonwealth place" for the purposes of s 52(i). But, in that context, a "place" is a geographic area, (see Svikart at 565; Allders at 639, 656). As the third respondent submitted, here there has been a severance of the interest in the uranium from the ownership held by the Aboriginal Land Trust in the lands, and a severance from the other minerals under that land which are owned by the Territory. In no sense has the Commonwealth acquired the land under which the uranium is deposited so as to make the land its place.
(d) Executive authority of the Territory Minister
On behalf of the appellant, it is submitted that a scheme for the division of executive authority is contained within the Self-Government Act, that is: (a) authority which is conferred by regulation on Territory Ministers; and (b) authority which remains with the Commonwealth, to be exercised by the Governor-General, the Federal Minister or the Territory Administrator, acting under the Minister's direction. According to the argument, paras (b) and (f) of Reg 4(5) of the Self-Government Regulations are inconsistent with this scheme since -
* The attempt to confer power on Territory Ministers to "enlarge" their executive authority by reaching agreements with the Commonwealth or a State amounts to an invalid subdivision of the powers conferred upon the Governor-General by ss 35 and 55 of the Self-Government Act.
It will be recalled that by s 35 it is provided that the Regulations "may specify the matters in respect of which the Ministers of the Territory are to have executive authority".
Section 55 provides, in the usual way, that the Governor-General "may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act". It is said, for the appellant, that the effect of paras (b) and (f) is that they purport to confer authority, the scope of which is to be determined by the scope of the agreements or arrangements which the Minister enters into; but that such a provision is neither "required" nor "permitted", nor "necessary" nor "convenient" as s 55 requires; so that, the argument runs, paras (b) and (f) "vary or depart from the positive provisions" of the Self-Government Act and "go outside the field of operation which the Act marks out for itself" (Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 at 410).
* Paragraphs (b) and (f) of Reg 4(5) are not the "specification" of a "matter" within s 35 because (i) the agreements by which the scope of the Minister's authority was not then required to be made publicly available (but were subsequently required - see Northern Territory (Self-Government) Regulations (Amendment) - Statutory Rules No 346) which, however, did not exist at the time the Regulations came into force and thus did not apply at the material time; and (ii) there may be a consequent expansion of the independent legislative authority of the Legislative Assembly.
Then the appellant says that, even if paras (b) and (f) are valid or should be read down so as to pick up only matters otherwise within the authority of Territory Ministers under Reg 4(1), they did not authorise the Agreement dated 8 February 1982; and they did not, alone or in combination with s 175 of the Mining Act, confer authority to grant the Lease.
It is further submitted for the appellant that even if the Regulations validly extended to this Agreement, it did not, of itself, impose or confer "duties, powers, functions or authorities"; rather, the Agreement concerns the manner of performance of duties, powers, functions and authorities imposed or conferred by or under the Mining Act.
We have difficulty accepting the appellant's arguments.
As was submitted on behalf of the first and second respondents, the subject-matter of the executive authority conferred by para (f) to negotiate and enter into inter-governmental agreements is, in truth, objectively defined, and is not dependent upon the subjective opinion or intentions of a Territory Minister: the existence of an inter-governmental agreement is an objective fact by reference to which authority is conferred and its scope defined (Baxter v Ah Way (1909) 8 CLR 626 per Isaacs and Higgins JJ at 641, 645-6). The definition of the authority is thus objectively stated, even if its execution can depend upon the Minister's intention or action at the time. In our view, there was no sub-delegation of the regulation-making power, and no failure to "specify" the relevant "matters" (see Booth v Wyvill (1989) 85 ALR 621 at 630-2).
Although strongly relied upon by the appellant, the decision in Turner v Owen [1990] FCA 358; (1990) 26 FCR 366 is, we think, distinguishable. There, a regulation purported to prohibit the importation of goods "which, in the opinion of the Minister, are of dangerous character..." (emphasis added). It was held that the informal and subjective nature of this decision-making process went beyond what the empowering statute contemplated. But, as has been said, the present process is structured differently and involves the application of objective criteria.
The appellant also relied in this connection upon the reasoning of Mason J and of Brennan J in Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342 at 352, 362. But, in our view, the case is distinguishable as concerned with a different subject, namely, whether a by-law made under Home Unit legislation appropriating the use of some of the common property was invalid if it left that property for later identification. In any event, Mason J and Brennan J were in the minority on this point, the majority (Gibbs CJ, Wilson and Dawson JJ) holding the by-law valid (at 351, 358 and 367).
Nor can we perceive any inconsistency with the scheme of the Self-Government legislation. On the contrary, to confer upon Territory Ministers authority to negotiate and enter into inter-governmental arrangements is not only appropriate, but in some areas necessary for practical reasons (see The Queen v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535 per Mason J at 560; Gould v Brown [1998] HCA 6; (1998) 72 ALJR 375 per Kirby J at 441-2). The conferral of power to give effect to such an arrangement is logical and no more than consequential. It is also to be borne in mind that the Commonwealth retains ultimate control over the situation: by s 9(1) of the Self-Government Act, the Governor-General may disallow any law within six months after the Administrator's assent (Wake v NT (1996) 109 NTR 1 at 14). The Governor-General also, of course, has the power to repeal or amend the Regulations. The existence of ultimate control in the Commonwealth is reflected in the course of the dealings between the Territory and the Commonwealth here: the Territory acted on the direction of the Commonwealth, in all relevant respects, including the terms of the Lease; royalty is payable to the Commonwealth, not the Territory (Lease, Fourth Schedule, cl 1(a)) and nothing the Territory has done affects the Commonwealth's ownership or title in the uranium.
We agree with the first and second respondents' submissions that para (b) does not require that the function or power exercised by a Territory Minister be itself conferred by an inter-governmental arrangement. It is sufficient that there be an arrangement by or under which duties are imposed on a Territory Minister. The executive authority conferred is not limited to the performance of those duties: the authority is expressed so as to extend to matters "in respect of" which duties are imposed; and the phrase "in respect of" has "a very wide meaning" (Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 per Brennan, Deane and Gaudron JJ at 47). In our opinion, the imposition by the Agreement of duties on the Territory Minister concerning the exercise of the Minister's powers under the Mining Act is sufficient to bring that exercise of power within para (b) as a matter "in respect of" which the duties are imposed. That Act, being a Territory law, is an "enactment" for this purpose (see Self-Government Act s 4(1); Acts Interpretation Act, s 46(1)).
The primary Judge said (at 58):
"The Territory Minister had executive authority (to use the awkward language of reg 4(5)(b)) in respect of matters in respect of which duties, powers or functions were imposed or conferred by or under an enactment of the kind referred to in par (f). The Mining Act 1980 was such an enactment, because it gave effect to the agreement of February 1982 between the Commonwealth and the Territory. Section 175 of that Act imposed duties on the Territory Minister in relation to the grant of a lease of prescribed substances. The Jabiluka Project Lease was a Lease of this description. Thus the execution of the Jabiluka Project Lease was a matter in respect of which duties and functions were imposed or conferred by a Territory enactment of the kind referred to in reg 4(5)(f)."
We agree.
It is further contended for the appellant that the Regulations are inconsistent with s 49A(1) of the Acts Interpretation Act, which provides as follows:
"49A(1) Where an Act authorizes... provision to be made for or in relation to any matter by regulations, the regulations may, unless the contrary intention appears, make provision for or in relation to that matter by applying, adopting or incorporating, with or without modification -
(a) the provisions of any Act, or regulations, as in force at a particular time or as in force from time to time; or
(b) any matter contained in any other instrument or writing as in force or existing at the time when the... regulations take effect;
but, unless the contrary intention appears, regulations shall not, except as provided by this sub-section, make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time."
On behalf of the appellant it is submitted that paras (b) and (f) purport to confer authority by reference to the contents of such agreements or arrangements as may exist from time to time in the future, but do not exist when the Regulations take effect, yet the empowering act contains no express provision to allow this.
We cannot accept the argument.
The evident object of operation of s 49A is to ensure that, as a general rule, regulations may not be so cast as to incorporate another instrument as in force from time to time; that is, regulations may not depend upon the ambulatory content of another instrument (Minister for Primary Industry v Davey (1993) 47 FCR 151 per Black CJ and Gummow J at 157). But, as the first and second respondents submitted, paras (b) and (f) do not, either as a matter of form or of substance, apply, adopt or incorporate anything contained in an inter-governmental agreement or arrangement: the "matter" that is the subject of paras (b) and (f) is one that is specified in those paragraphs themselves, that is, the conferring of executive authority in respect of all agreements of the kind then identified that may be made.
ORDERS
The appeal is dismissed, with costs.
|
I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of the Court |
Associate:
Dated: 21 August 1998
|
Counsel for the Appellant: | J Basten QC with N Williams and S Lloyd |
| Solicitor for the Appellant: | Bruce Donald |
| Counsel for the First and Second Respondent: | B Walker SC with S Gageler |
| Solicitor for the First and Second Respondent: | Australian Government Solicitor |
| Counsel for the Third Respondent: | N Young with N Mukhter |
| Solicitor for the Third Respondent: | Corrs Chambers Westgarth |
| Counsel for the Fourth Respondent: | A Sullivan QC with R Webb |
| Solicitor for the Fourth Respondent: | Freehill Hollingdale & Page |
| Date of Hearing: | 29 and 30 June 1998 |
| Date of Judgment: | 21 August 1998 |
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