Newcrest Mining (WA) Ltd & Another v Commonwealth & Another
(1997) 190 CLR 513(Decision by: Gaudron J)
NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE
Court:
Judges:
Brennan CJ
Dawson
Toohey
GaudronMcHugh
Gummow
Kirby JJ
Subject References:
CONSTITUTIONAL LAW
Validity of proclamations made under National Parks and Wildlife Conservation Act 1975 (Cth)
Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution.
Characterisation of a law capable of dual characterisation
Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation.
Meaning of "acquisition of property" in s 51(xxxi) of the Constitution
Whether proclamation prohibiting mining effects an acquisition of mining tenements.
MINING
Validity of mining leases
Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth)
Whether right of renewal in existence.
Whether government approval or authority necessary for renewal of particular lease
Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth).
Other References:
Constitution of the Commonwealth, ss 51(xxxi), 122.
Northern Territory (Self- Government) Act 1978 (Cth) ss 50(2), 70.
Northern Territory (Administration) Act 1910 (Cth).
National Parks and Wildlife Conservation Act 1975 (Cth).
National Parks and Wildlife Conservation Amendment Act 1987 (Cth).
Mining Ordinance 1939 (NT).
Mining Act 1980 (NT).
Judgment date: 14 AUGUST 1997
Decision by:
Gaudron J
I agree generally with the reasons for judgment of Gummow J and with the orders he proposes.
While I agree with his Honour that the constitutional guarantee contained in s 51(xxxi) of the Constitution operates in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution, there are other routes leading to the conclusion that par (xxxi) operated in respect of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act") and the Proclamations made under that Act in relation to Kakadu National Park ("Kakadu").
The Conservation Act is expressed in its long title to be
"An Act to make provision for and in relation to the Establishment of National Parks and other Parks and Reserves and the Protection and Conservation of Wildlife".
It came into operation on the day on which it received the Royal Assent [F109] , 13 March 1975. The object of Pt II - Parks and Reserves is expressed to be [F110]
"to make provision for the establishment and management of parks and reserves:
- (a)
- appropriate to be established by the Commonwealth Government, having regard to its status as a national government;
- (b)
- in the Territories;
- (c)
- in the Australian coastal sea;
- (d)
- for purposes related to the rights (including sovereign rights) and obligations of Australia in relation to the continental shelf of Australia;
- (e)
- for facilitating the carrying out by Australia of obligations under, or exercise by Australia of rights under, agreements between Australia and other countries; or
- (f)
- conducive to the encouragement of tourism between the States and between other countries and Australia".
It is apparent from the way in which these categories have been formulated that reliance is placed on various sources of power. The reference in par (a) to the status of the Commonwealth Government "as a national government" picks up the notion of that Government's "capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation" [F111] . As to par (b) of s 6(1), "Territory" is defined to mean "an internal Territory or an external Territory to which this Act extends" [F112] . Thus reliance is placed also on s 122 of the Constitution. Although Pt II contains express reference to the Northern Territory, to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and to Kakadu, neither Pt II nor the Conservation Act generally is confined to any particular geographical area. Paragraph (e) is clearly an invocation of the external affairs power, s 51(xxix), and is intended to include the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") which is referred to in par 3 of the Schedule to the Conservation Act.
Section 7(2) of the Conservation Act empowers the Governor-General, by Proclamation, to declare an area to be a park or reserve and assign a name to that park or reserve, and to declare the whole or a specified part of the park or reserve to be a wilderness zone [F113] . On 5 April 1979 Stage 1 of Kakadu was proclaimed pursuant to s 7(2). Stage 2 was proclaimed on 22 February 1984. Stage 3 of Kakadu was originally proclaimed on 5 June 1987.
The first Proclamation with which these proceedings are concerned was made under s 7(8) of the Conservation Act on 13 November 1989. That sub-section empowers the Governor-General, by Proclamation, to revoke or amend a Proclamation made under the section. The Proclamation effected a significant increase to Stage 3 of Kakadu. The second Proclamation, effecting a further extension of Kakadu, was made on 21 June 1991. The statement of claim pleads that the first of these two Proclamations purported to vest in the second defendant, the Director of National Parks and Wildlife ("the Director"), various parcels of land by adding them to Kakadu. This was said to effect an acquisition of the first appellant's property, namely, Mining Leases 78-89 [F114] . The statement of claim then pleads that the second Proclamation purported to vest in the Director further parcels of land by adding them to Kakadu. This was said to effect a further acquisition of the first appellant's property, namely, Mining Leases 19, 23-28 and 751-756.
The respondents admitted in their defence that an object of the making of the Proclamations
"was to facilitate the carrying out by Australia of obligations under, or the exercise by Australia of rights under, an agreement between Australia and other countries, namely the Convention for the Protection of the World Cultural and Natural Heritage".
The defence then simply denies that "the said object was the only object of the making of the Proclamations".
As to the sequence of events, the Convention was adopted and given effect to by the World Heritage Properties Conservation Act 1983 (Cth) [F115] . Nothing turns upon that statute for this case. However, the Conservation Act itself had been enacted some eight years earlier, and in The Tasmanian Dam Case [F116] the Court held that, in so far as s 69 enabled regulations to be made for giving effect to the Convention, the Conservation Act was within the legislative power of the Commonwealth under the external affairs power. At that time Australia was a State Party to the Convention.
In Richardson v. Forestry Commission [F117] , it was decided that the Convention does not merely impose an obligation on a State Party with respect to areas already entered on the World Heritage List but obliges it to identify areas appropriate for protection. The steps to be taken for inclusion on the World Heritage List were outlined by Mason J in The Tasmanian Dam Case [F118] . Section 6(1)(e) of the Conservation Act, set out above, is to be read against that background.
It is common ground that Stage 3 of Kakadu was nominated by Australia on 23 December 1991 for inclusion on the World Heritage List, that the nomination was accompanied by copies of the Proclamations and that Stage 3 was inscribed by the World Heritage Commission on the List at its December 1992 meeting. That these steps were taken after the making of the relevant Proclamations is not critical for the present argument. The point is that the external affairs power supplied a source for the Proclamation-making power, and the making of the Proclamations facilitated the carrying out by Australia of its obligations, or the exercise by it of its rights, under the Convention.
The Schedule to the Conservation Act identifies several international agreements for the purpose of s 69(1) which empowers the Governor-General to make regulations "for and in relation to giving effect to an agreement specified in the Schedule". Thus the case comes before this Court on the footing that the external affairs power is relied upon by the Commonwealth as a source of the Proclamation-making power.
The relief claimed by the appellants included a declaration that certain provisions of the Conservation Act [F119] and the Proclamations are invalid and of no effect in so far as they purported to vest in the Director the land over which the Mining Leases existed and in so far as they purported to prevent the carrying out of mining operations on the land. The claim of "invalidity" arises on the footing that s 51(xxxi) empowers the Parliament to make laws with respect to
"[t]he acquisition of property on just terms from any ... person for any purpose in respect of which the Parliament has power to make laws".
Hence a law with respect to the acquisition of property on other than just terms is not a law which can be supported under par (xxxi). To that extent the law is invalid. It is to meet that argument that the respondents invoke s 122 of the Constitution as a source of power to enact s 7 and to make the Proclamations in so far as they relate to land in the Northern Territory.
In Spratt v. Hermes [F120] Windeyer J spoke in the following terms:
"[W]hen the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."
The respondents rely upon this approach as being no more than a particular application of the more general doctrine by which a law expressed in general terms may be read down so as to give the law validity within its constitutionally supported field of operation. What the respondents argue for is in effect a reading down of the Conservation Act to give it, for present purposes, a limited territorial operation. But the power conferred by s 51(xxxi) is a power to acquire property "for any purpose in respect of which the Parliament has power to make laws". If the purpose of the Act is to make provision for the establishment of national parks and reserves and that purpose is supportable under the external affairs power (or the implied nationhood power), why is not par (xxxi) applicable?
In Mutual Pools & Staff Pty Ltd v. The Commonwealth [F121] , Mason CJ said in relation to par (xxxi):
"[T]he other legislative powers reposed in the Parliament must be construed so that they do not authorize the making of a law which can properly be characterized as a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms.
...
Hence, the effect of s 51(xxxi) when read in conjunction with the other legislative powers of the Parliament is that, subject to any contrary intention, it forbids the making of laws with respect to the acquisition of property from any State or person for a relevant purpose on terms that are not just [F122] ."
While Mason CJ spoke of s 122 standing "in a separate position", referring to Teori Tau v. The Commonwealth [F123] , there was in Mutual Pools no challenge to that decision. In expressing my general agreement with the judgment of Gummow J I include his Honour's conclusion that Teori Tau should no longer be treated as authority denying the operation of the constitutional guarantee in par (xxxi) in respect of laws passed in reliance upon the power conferred by s 122.
The appellants argue that, on any view, the Conservation Act is intended to be a law for the peace, order and good government of the Commonwealth, having application throughout the Commonwealth and extending to "every external Territory" [F124] . Equally, they contend that the provisions of the Conservation Act, in so far as they authorise the making of the Proclamations and in turn the acquisition of the mining leases, cannot be characterised as a law "for the government of" the Northern Territory. Thus there are two issues involved in relation to s 122. One is whether the section can have any operation in the circumstances. The other is whether, if it can, but another power is capable of supporting the legislation, the respondents may rely upon s 122 only, with a view to avoiding the operation of s 51(xxxi).
In Australian Capital Television Pty Ltd v. The Commonwealth [F125] , I referred to certain statements in the judgment of Dixon CJ in Lamshed v. Lake [F126] and in the judgments of Barwick CJ in Spratt v. Hermes [F127] and in Capital TV and Appliances Pty Ltd v. Falconer [F128] . I continued:
"It seems to me that the statements to which reference has been made were directed to emphasizing [the amplitude of the power conferred by s 122 and its qualitative difference from that conferred by s 51] and not to asserting that a law which applies in a Territory is, to that extent, a law authorized by s 122. Such a view would be inconsistent with what was said in Lamshed v. Lake and with the accepted approach to characterization which treats a law of general application that is not supported by s 51 as invalid in its application to the Territories unless there is some indication that it should nevertheless apply in them."
It has been said that a law is authorised by s 122 if it has "a sufficient connexion or nexus with the good government of the Territory" or "a rational connexion with the government of the Territories". These expressions derive from the judgments of Mason J and of Murphy J in Attorney-General (WA) v. Australian National Airlines Commission [F129] . I have no difficulty with these "tests" as far as they go. However, they do not directly touch the situation where a law of the Parliament is supportable under a head of power in s 51 but the Commonwealth seeks to rely on s 122 in order to avoid a requirement of s 51. In Australian National Airlines Commission the law of the Parliament under attack was held invalid except in so far as it was a law for the government of a Territory under s 122.
It is, I think, important to identify again the particular point under discussion. If a law is not a law for the government of a Territory, s 122 cannot sustain it. But what if some part of it can be so described but the law is of wider operation? Is the answer simply that if a law is of wider operation it cannot be a law for the government of a Territory? Or is it possible to single out part of the law and sustain that under s 122 even though the whole of the law is sustainable under a head of power in s 51? Or is this just two ways of asking the same question?
A law, valid by reason of s 51, may operate within a Territory. In Lamshed v. Lake [F130] Dixon CJ said that "it rather taxes legal credulity" to believe that within s 51 a law of the Parliament could not extend to the Northern Territory, it being the Territory with which the Court was there concerned. As already noted, the Conservation Act is one for the establishment of national parks throughout the Commonwealth and extending to the external Territories. Although, as also noted, the Conservation Act makes particular reference to Kakadu, s 7 contains no geographical limitation. It is the source of the power to declare by Proclamation an area to be a park or reserve.
In Australian Capital Television Pty Ltd [F131] Deane and Toohey JJ said that "in a context where both of the internal Territories have been granted self-government, it is unlikely that the provisions of Pt IIID of the [ Broadcasting Act 1942 (Cth)] were ... enacted as a law for the government of a Territory pursuant to s 122". I took the view that since the Commonwealth had enacted legislation with respect to the establishment of the Australian Capital Territory and the Northern Territory, in each case establishing a separate body politic, Pt IIID of the Broadcasting Act , which dealt with broadcasting in relation to Commonwealth parliamentary elections and referenda, could not be viewed as having a sufficient connexion with the government of those Territories as to make it a law within s 122.
It is true that the provisions of the Broadcasting Act related to the conduct of elections. Nevertheless the principle holds good. It is unlikely that an Act of general application throughout the Commonwealth will also be a law passed pursuant to s 122. And so it is in this case. Indeed, in a context in which the Conservation Act operates throughout the Commonwealth, its Territories and coastal seas and is expressed to have been enacted for purposes connected with the Commonwealth's rights and obligations with respect to the continental shelf, its international treaty obligations and international and interstate tourism, I do not think it possible to characterise it as a law for the government of the Northern Territory, however widely "government" may be construed.
Whether or not that be so, the situation here is that the Conservation Act is supportable under s 51(xxix) as claimed by the respondents. The appellants do not challenge that proposition; indeed they accept it while also contending that the requirement of just terms in s 51(xxxi) applies to an exercise of legislative power under s 122. This is in sharp contrast to the situation where the Commonwealth asserts two heads of power in the event that one may fail, as in Leask v. Commonwealth [F132] .
Section 51(xxxi) operates so as to restrict other legislative powers conferred by the section where the Commonwealth seeks to acquire property from any State or person. As Dixon J observed in Bank of NSW v. The Commonwealth [F133] :
"In requiring just terms s 51(xxxi) fetters the legislative power by forbidding laws with respect to acquisition on any terms that are not just."
In referring to this passage, I am not concerned with the argument as to whether s 122 is so constrained. I have already expressed my concurrence with Gummow J in that regard [F134] . Whether or not one agrees with that view, the point is that par (xxxi) does fetter the legislative power where property is sought to be acquired "for any purpose in respect of which the Parliament has power to make laws".
It is clear, as the respondents contend in this case, that a law may have more than one purpose. Even if s 51(xxxi) is construed as referring to "any purpose in respect of which the Parliament has power to make laws [under this section]", a law which has a purpose of that kind clearly falls within its terms whether or not it is also a law "for the government of [a] territory" [F135] .
It is one thing to read down s 51(xxxi) so that it does not apply to a law enacted pursuant to s 122 of the Constitution. It is another to treat it as not applying to a law which has two purposes, one of which falls within the terms of s 51(xxxi) and the other of which is for the government of a Territory. That is to rewrite the terms of s 51(xxxi), not to read them down. Neither course is permissible. Rather, the proper approach is to construe constitutional guarantees as liberally as their terms will allow [F136] .
However, it is not necessary to take a liberal approach in this case. On the assumption that par (xxxi) is to be read down so that it applies only to laws enacted under s 51, its terms, even when strictly construed, extend to a law a purpose of which is one "in respect of which the Parliament has power to make laws [under s 51]". In P J Magennis Pty Ltd v. The Commonwealth [F137] Williams J said of par (xxxi):
"In my opinion the paragraph applies to all Commonwealth legislation the object of which is to acquire property for a purpose in respect of which the Commonwealth Parliament has power to make laws."
A purpose of the Conservation Act is the performance of Australia's international obligations; that is a purpose in respect of which the Parliament has power to make laws under s 51(xxix); par (xxxi) operates to fetter the implementation of that purpose by means of a law with respect to the acquisition of property [F138] . The Commonwealth cannot enact laws for a purpose which falls within s 51 without the condition which attaches by par (xxxi) [F139] .