Newcrest Mining (WA) Ltd & Another v Commonwealth & Another

(1997) 190 CLR 513

---

(Judgment by: Toohey J)

NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE

Court:

Judges: Brennan CJ
Dawson

TooheyGaudron
McHugh
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

---

Judgment by:
Toohey J

In respect of the appeal from the Full Court of the Federal Court and in respect of the matter reserved by order of the Chief Justice made 21 May 1996, I agree with the orders proposed by Gummow J.

As to the reasons which lead me to concur in the making of those orders, I agree with what Gaudron J has written including her agreement with the reasons of Gummow J, save in one respect, namely, her Honour's concurrence with Gummow J that Teori Tau v. The Commonwealth ^[F108] should no longer be treated as authority denying the operation of the constitutional guarantee in s 51(xxxi) of the Constitution in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution.

I acknowledge the force of the critical analysis to which Gummow J has subjected the judgment in Teori Tau . And I am not persuaded by the argument of the Commonwealth that the application of s 51(xxxi) to reduce the content of the legislative power conferred by s 122 would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the Northern Territory since 1911, to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law.

Nevertheless, it would be a serious step to overrule a decision which has stood for nearly 30 years and which reflects an approach which may have been relied on in earlier years. If, as Gaudron J has shown (and as Gummow J agrees), par (xxxi) does fetter the legislative power of the Commonwealth where property is sought to be acquired "for any purpose in respect of which the Parliament has power to make laws" and if a purpose of the National Parks and Wildlife Conservation Act 1975 (Cth) is the performance of Australia's international obligations, Teori Tau is not an obstacle to giving effect to the guarantee in s 51(xxxi) in respect of that legislation. Indeed, it seems almost inevitable that any acquisition of property by the Commonwealth will now attract the operation of s 51(xxxi) because it will be in pursuit of a purpose in respect of which the Parliament has power to make laws, even if that acquisition takes place within a Territory. It will only be if a law can be truly characterised as a law for the government of a Territory, not in any way answering the description in par (xxxi), that Teori Tau will constitute such an obstacle. And that is an unlikely situation on the view I take of the operation of the paragraph. If that be right, any implications overruling Teori Tau would have would likely be for the past rather than the future.

It is particularly unlikely, since the Northern Territory (Self-Government) Act 1978 (Cth), that a law of the Parliament for the acquisition of property from any person in the Northern Territory will be a law only "for the government of any territory" within s 122 and not a law which attracts the operation of par (xxxi) because the property is sought to be acquired for a purpose in respect of which the Parliament has power to make laws in terms of s 51(xxxi).