ATLANTIC VANADIUM PTY LTD and SHIRE OF MOUNT MAGNET
[2024] WASAT 16
•19 MARCH 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: ATLANTIC VANADIUM PTY LTD and SHIRE OF MOUNT MAGNET [2024] WASAT 16
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 23 JANUARY 2024
DELIVERED : 19 MARCH 2024
FILE NO/S: DR 143 of 2023
BETWEEN: ATLANTIC VANADIUM PTY LTD
Applicant
AND
SHIRE OF MOUNT MAGNET
Respondent
Catchwords:
Local government - Objection to rate notice - Rates - Whether land the subject of a miscellaneous licence under the Mining Act is rateable land - Miscellaneous licence - Whether mining tenement is an estate in land
Legislation:
A New Tax System (Luxury Car Tax) Act 1999 (Cth), ss 15-30
Copyright Amendment Bill 2006 (Cth)
Copyright Act 1968 (Cth), s 111
Interpretation Act 1984 (WA), s 19(2)(h)
Land Administration Act 1997 (WA)
Local Government (Financial Management) Regulations 1996 (WA), reg 56
Local Government Act 1960 (WA) (repealed)
Local Government Act 1995 (WA), s 1.3(1)(d), s 1.3(2)(d), s 1.4, s 1.4(e), s1.4(f), s 6.26(1), s 6.26(2), s 6.26(2)(a), s 6.26(2)(a)(i), s 6.26(2)(a)(ii), s 6.26(2)(a)(ii)(I), s 6.26(2)(a)(ii)(II), s 6.27, s 6.28, s 6.28(2), s 6.29, s 6.29(2), s 6.29(3), s 6.32(1), s 6.33, s 6.39, s 6.39(1), s 6.39(3), s 6.41(2), s 6.43, s 6.44(1), s 6.50, s 6.52, s 6.76(1), s 6.76(5), s 6.77, s 6.81, s 8, Div 6, Pt 6
Local Government Bill 1995 (WA), cl 24, cl 25(2)(a)
Mining Act 1978 (WA), s 8(1), s 18, s 27, s 40(2), s 43, s 45(1), s 45(1a), s 48(a), s 48(c), s 56A, s 56A(6aa), s 57(2), s 61, s 61(1), s 61(2), s 66, s 66(a), s 66(b), s 70, s70E(1), s 70E(2), s 70J, s 78(1), s 78(1)(a), s 78(1)(b), s 85(1)(a), s 85(1)(d), s 85(3), s 85B, s 87(1), s 88(1)(b), s 88(2), s 88(3), s 91, s 91(6), s 91(7), s 91(8), s 91A, s 91B, s 94A, s 94A(2), s 117, Pt 3, Div 6
Mining Regulations 1981 (WA), reg 14, reg 23G, reg 42B, reg 42B(q), reg 42B(x)
State Administrative Tribunal Act 2004 (WA), s 27(2)
Result:
Preliminary issue determined
Category: A
Representation:
Counsel:
| Applicant | : | Mr TC Russell & Ms L Holland |
| Respondent | : | Ms P Honey & Mr A Watts |
Solicitors:
| Applicant | : | DLA Piper Australia - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Automotive Invest Pty Limited v Commissioner of Taxation [2023] FCAFC 129
Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362
City of Rockingham v PMR Quarries Pty Ltd (Trading as WA Limestone Co) [2001] WASCA 317; (2001) 118 LGERA 93
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87
Fly by Night Musicians Club Ltd v City of Fremantle [2004] WASCA 161
Golden Pig Enterprises Pty Ltd v O'Sullivan [2021] WASC 396
LS v Mental Health Review Board [2013] WASCA 128
Mohammadi v Bethune [2018] WASCA 98
National Rugby League Investments Pty Ltd (ACN 081 778 538) v Singtel Optus Pty Ltd (ACN 052 833 206) (NSD 201 of 2012) (2012) 201 FCR 147; 289 ALR 27
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 33
Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296
Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 456
Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641
Retirees WA (Inc) and City of Belmont [2010] WASAT 56
Shire of Katanning and Bride [No 2] [2011] WASC 248
TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576
The City of Rockingham v Port Kennedy Resorts Pty Ltd [1999] WASCA 300
Trecap Pty Ltd and City of Swan [2006] WASAT 142
REASONS FOR DECISION OF THE TRIBUNAL:
What is the proceeding about?
These reasons deal with a novel question of statutory construction in the context of rates levied under the Local Government Act 1995 (WA) (LG Act).
That question is whether land the subject of miscellaneous licences granted pursuant to the Mining Act 1978 (WA) (Mining Act) held by Atlantic Vanadium Pty Ltd (Atlantic or Applicant) are 'rateable land' for the purposes of the LG Act.
For the reasons that follow, I find that the land the subject of the miscellaneous licences is not rateable land under the LG Act.
Factual background
The following facts are agreed. Accordingly, I find as follows.
Atlantic holds six miscellaneous licences (L58/27, L58/28, L58/29, L58/30, L58/32 and L58/35)[1] (Miscellaneous Licences) over land, relevantly, within the Shire of Mount Magnet (Shire or Respondent). These licences were granted between 23 June 1998 and 12 June 2009.[2]
[1] L58/30, L5827 and L58/28 are partially within the Shire of Mount Magnet.
[2] Refer Exhibit 1 – Tengraph map of the Miscellaneous Licences.
Atlantic acquired the Miscellaneous Licences in around 2016 and they form part of its Windimurra Vanadium project.
The Miscellaneous Licences cover a total area of 5,633.39 ha, of which 4,237.59 ha sits within the Shire. The remaining portions are within the adjoining Shire of Sandstone.
On or about 15 June 2023, the Shire (Respondent) issued rates notices to Atlantic in respect of the Miscellaneous Licences following a review of its rate record under s 6.39 of the LG Act. Prior to 15 June 2023, the Shire did not issue rates notices for any of its Miscellaneous Licences (Rates Notices).
Mr Russell, counsel for the Applicant, also submitted that so far as the Applicant's research indicated, no other rates notices have been issued under the LG Act on any of the 4345 miscellaneous licences in Western Australia.[3] Of course, even if that is correct, it does not inform the question of statutory construction that arises.
[3] ts 7 and 8, 23 January 2024.
Upon receipt of the Rates Notices, Atlantic and the Shire exchanged a series of communications on the question as to whether the land the subject of the Miscellaneous Licences is rateable land.[4]
[4] Letters were sent by the Respondent on 12 July 2023 and 14 August 2023; the Applicant sent letters on 29 June 2023, 27 July 2023 and 22 August 2023.
On 23 August 2023, the Applicant lodged an application to review the Shire's decision relating to the rate record pursuant to s 6.77 of the LG Act.
The preliminary issue
The parties formulated a preliminary issue for determination. That question is the proper construction of s 6.26(2)(a)(ii)(I) of the LG Act and which is framed as follows:
Whether the land the subject of [the Miscellaneous Licences] held by the Applicant is, on the proper construction of section 6.26(2)(a)(ii)(I) of the [LG Act], not rateable land.
Statutory framework
The mining context
The preliminary issue arises under the LG Act, but concerns mining tenements granted under the Mining Act. Accordingly, as a matter of context, the operation of the Mining Act must be considered.[5]
[5] The Respondent's submissions, helpfully, include a detailed explanation of the operation of the Mining Act which is not contested by the Applicant. These submissions have been of assistance to me. I am grateful to the Respondent in this regard.
Land which is 'open for mining' is identified in Pt 3 of the Mining Act. Section 18 provides that all Crown land, not being Crown land that is the subject of a mining tenement, is open for mining.
'Crown land' is relevantly defined to mean, in effect, all land in Western Australia, except for land reserved for any public purpose; land granted by the Crown in freehold or leasehold; or land designated as a townsite.[6]
[6] Mining Act, s 8(1).
Section 27 provides that private land is open for mining. The premise that land is 'open for mining' reflects the primary object of the Mining Act, being to encourage and promote prospecting and exploration for, and mining of, mineral deposits.[7] In pursuit of this object, the Mining Act provides for the grant of a range of mining tenements. The term 'mining tenement' is defined as follows:
Mining tenement means a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired.
Mining tenements under the Mining Act
Exploration tenements
[7] Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 [75] (Quinlan CJ) (Blue Ribbon).
The first phase of mining involves exploration. A person must not undertake exploration activities without either a prospecting licence or an exploration licence.
A prospecting licence authorises the holder to enter land for the purpose of prospecting for minerals with employees and contractors and such vehicles, machinery and equipment as may be necessary and expedient.[8] A prospecting licence holder may excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances not exceeding a prescribed amount.[9] There is no minimum area for a prospecting licence, but it cannot exceed 200 ha.[10] A prospecting licence has an initial duration of 4 years from the date of issue[11] and can be extended by the Minister for a further 4 year period.[12]
[8] Mining Act, s 48(a).
[9] Mining Act, s 48(c). Pursuant to reg 14 of the Mining Regulations 1981 (WA) (Mining Regulations), the prescribed amount that may be 'excavated, extracted or removed' is 500 tonnes. Any larger amount requires the Minister's written approval.
[10] Mining Act, s 40(2).
[11] Mining Act, s 45(1).
[12] Mining Act, s 45(1a).
An exploration licence may be granted over a much larger area of land for a much longer duration and permits the holder to extract a greater volume of materials than a prospecting licence. An exploration licence may be granted over a maximum of 70 blocks.[13] An exploration licence remains in force for a period of 5 years,[14] and may be extended.[15]
[13] Mining Act, s 57(2). A 'block' is part of the graticular boundary system and identifies land by latitude and longitude.
[14] Mining Act, s 61(1).
[15] Mining Act, s 61(2).
An exploration licence authorises the holder to enter land for the purpose of exploration for minerals with employees and contractors and such vehicles, machinery and equipment as necessary or expedient.[16] It provides for the exploration of minerals and the undertaking of operations and works necessary for that purpose, including digging pits, trenches and holes and sinking bores and tunnelling.[17]
Retention licence
[16] Mining Act, s 66(a).
[17] Mining Act, s 66(b).
A retention licence may be obtained if, during exploration, an identified mineral resource has been located but is impracticable to mine at present. A retention licence carries with it an assurance of being able to obtain title to mine once practical to do so.[18]
[18] Respondent's submissions dated 16 November 2023, para 14.
A retention licence authorises the holder to enter the subject land for further exploration, taking such plant and carrying out such works as are necessary, including digging pits, trenches and holes, excavating, extracting and removing mineral bearing substances not exceeding 1000 tonnes, and to take water.[19] A retention licence has a maximum term of 5 years,[20] and may be renewed.[21]
Mining leases
[19] Mining Act, s 70J, Mining Regulations 1981 (WA) (Mining Regulations) reg 23G.
[20] Mining Act, s 70E(1).
[21] Mining Act, s 70E(2).
A mining lease is required for the development of any mineral deposits discovered during the exploration phase. The holder of a prospecting licence, or an exploration licence, enjoys the right to apply for a mining lease in respect of all or part of the area licensed to them.
A mining lease authorises the holder to mine for, and dispose of, any minerals on the land in respect of which the lease is granted.[22] The holder of a mining lease is entitled to use, occupy and enjoy the land for mining purposes and do all acts and things necessary to effectively carry out mining operations.[23]
[22] Mining Act, s 85(1)(a).
[23] Mining Act, s 85(1)(d).
A mining lease confers rights of exclusive possession.[24] A mining lease remains in force for 21 years,[25] and the holder has an option for a further term of 21 years.[26]
Ancillary tenements
[24] Mining Act, s 85(3); Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87 [96] (RobertsSmith J).
[25] Mining Act, s 78(1)(a).
[26] Mining Act, s 78(1)(b).
There are two further tenements provided for in the Mining Act which are ancillary in nature and facilitate the conduct of mining activities.
A general purpose lease entitles the holder to the exclusive occupation of the land for one or more permitted purposes. The purposes are the erecting, placing and operating of machinery in connection with mining operations, the depositing or treating of minerals or tailings and use of the land for any other specified purpose directly connected with mining operations.[27] A general purpose lease is granted for a term of 21 years,[28] and may be renewed.[29]
[27] Mining Act, s 87(1).
[28] Mining Act, s 88(1)(b).
[29] Mining Act, ss 88(2) and (3).
A miscellaneous licence is granted for one of the purposes prescribed in reg 42B of the Mining Regulations. Such purposes include, inter alia, roads, power lines, pipelines, mine site accommodation facilities, jetties etc. Its purpose must be directly connected with mining.[30] A miscellaneous licence is granted for 21 years and may be renewed for further terms.[31]
Operation of mining tenements
[30] Mining Act, s 91(6).
[31] Mining Act, s 91B.
As a general proposition, both Crown land and private land may be the subject of an application for a mining tenement. Furthermore, and again in general terms, where such land is subject to a mining tenement, no other mining tenement may be granted over that land or co-exist with the existing tenement.[32]
[32] Blue Ribbon [78].
The exception to the basic scheme of the Mining Act is a miscellaneous licence. This is because a miscellaneous licence may be granted over land the subject of another mining tenement and vice versa.[33] The two tenements can apply, and co-exist, concurrently on the land.[34]
[33] Mining Act, ss 91 and 94A; Blue Ribbon [80].
[34] Mining Act, ss 91(8) and 94A(2).
Section 117 of the Mining Act serves to protect existing mining tenements from the effect of later grants of tenure, including other mining tenements. However, despite s 117, the Mining Act does provide for a special prospecting licence to be granted (after 12 months) notwithstanding that extant mining tenement.[35]
[35] Mining Act, s 56A (on a prospecting licence); s 70 (on an exploration licence); s 85B (on a mining lease).
A special prospecting licence allows the holder to prospect for gold only and must not exceed 10 ha. A special prospecting licence may be granted for a period of 3 months, or for any period which is a multiple of 3 months, but which does not exceed 4 years.[36]
[36] Mining Act, s 56A(6aa).
Although a miscellaneous licence may be granted over land the subject of another tenement, there is an implied prohibition on the grant of the miscellaneous licence having the effect of 'revoking or injuriously affecting any existing tenement'.[37]
[37] Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 456 550 (Malcolm CJ) (Western Reefs); cited in Blue Ribbon [86].
A mining tenement granted over private land operates concurrently with the tenure of the private landowner or occupier.[38]
The LG Act
[38] Mining Act, s 27.
The long title of the LG Act is to provide for a system of local government in Western Australia. The LG Act provides for a system of local government by, inter alia, 'providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs'.[39] One of the intended results of the LG Act is more efficient and effective local government.[40]
[39] LG Act, s 1.3(1)(d).
[40] LG Act, s 1.3(2)(d).
Part 6 of the LG Act deals with the financial management of local governments. Division 6 of Pt 6 is directed to rates and service charges. In broad terms, rates are one basis on which local governments are funded. Section 6.32(1) requires a local government to impose a general rate on rateable land in order to make up the budget deficiency in its annual budget.
Rates may be made by local government and levied on all rateable land within its district. In general terms, and subject to some exemptions, all land within a local government is rateable.[41] Section 6.26(2) of the LG Act sets out the land that is not rateable land.
[41] LG Act, s 6.26(1).
One exception is land which is the 'property of the Crown' and 'is being used or held for a public purpose'.[42] There is a further exemption for land that is unoccupied which is then subject to two exemptions in paragraphs (I) and (II) of s 6.26(2)(a)(ii). Paragraph (I), which is set out at [51] below, is the focus of these reasons.
[42] LG Act, s 6.26(2)(a)(i).
The term 'owner', where used in relation to land in the LG Act includes, relevantly, a person who holds in respect of the land a mining tenement under the Mining Act (which includes a person holding a miscellaneous licence).[43]
[43] LG Act, s 1.4(e).
Section 6.27 deals with multiple rates. It provides, relevantly, that where under the Mining Act a person either 'holds' or 'occupies, uses or enjoys' 'in respect of land in a mining tenement within the meaning given to that term by the Mining Act',[44] the land the subject of that tenement is rateable land for the purposes of the LG Act in the hands of the holder of another estate in that land. I will return to the question of what constitutes an 'estate' in land later in these reasons.[45]
[44] 'Mining tenement' is defined in the Mining Act to include, relevantly, a miscellaneous licence: LG Act, s 8.
[45] Refer [127] – [128] below.
Section 6.28 of the LG Act is directed to the basis on which rates are to be calculated. The Minister is to determine the valuation method by which rates will be calculated and is required to publish that determination in the Government Gazette. In determining that method, regard is to be had to the general principle that the basis for a rate on any land is to be the unimproved value, or the gross rental value, of the land.[46]
[46] LG Act, s 6.28(2).
Section 6.29 deals with the method of valuation to rate for mining and petroleum interests. A 'relevant interest' as referred to in that section, means, for present purposes, a mining tenement held under the Mining Act. The effect of s 6.29(2) is that the basis for a rate on a relevant interest is the unimproved value of the land, except as provided for in s 6.29(3).[47]
[47] LG Act, s 6.29(2).
Section 6.29(3) provides that s 6.29(2) does not apply to a relevant interest in a portion of land on which capital improvements are located, if the Minister has determined that the gross rental value of the land shall be used as the basis for the rating of that interest, and the determination expressly excludes the application of the sub-section.
Rates can be imposed either uniformly or differentially.[48] Differential rates may be imposed according to any, or a combination, of the following characteristics: (a) zoning; (b) the purpose for which the land is held or used; (c) whether the land is vacant or not; or (d) any other characteristic or combination of characteristic prescribed.[49]
[48] LG Act, s 6.32(1).
[49] LG Act, s 6.33.
As soon as practicable after a local government has resolved to impose rates in a financial year, it is required to compile a rate record in relation to, relevantly, all rateable land within its district.[50]
[50] LG Act, s 6.39(1).
A local government is required to give the rate notice to the owner of the rated land.[51] The notice must state the date on which the rate notice was issued as well as prescribed particulars.[52] Rates are a charge on the rated land.[53] The owner of the land on which the rate has been imposed is liable to pay the rate to the local government.[54]
[51] LG Act, s 6.41(2).
[52] Local Government (Financial Management) Regulations 1996 (WA), reg 56.
[53] LG Act, s 6.43.
[54] LG Act, s 6.44(1).
Rates become due and payable on such date as determined by a local government, but not earlier than 35 days after the date noted on the rate notice.[55]
[55] LG Act, s 6.50.
Section 6.52 provides that rates are apportionable: (a) as between successive owners (in instances where the ownership of the land may be transferred within the financial year); and also (b) as between owners of several portions of the rated land, according to the respective values of the portions.
Subdivision 7 of Div 6 deals with objections and review. Section 6.76(1) provides that a person may object to the rate record of a local government on the ground that, relevantly, the rated land is not rateable land. The local government must promptly consider the objection and may either disallow it or allow it wholly or in part.[56] The making of an objection does not affect the liability to pay any rate pending determination of the objection.[57]
[56] LG Act, s 6.76(5).
[57] LG Act, s 6.81.
A person dissatisfied with the local government's decision on an objection may apply for a right of review.[58] In this proceeding, the Applicant objects to the Rate Notices for the Miscellaneous Licences on the basis that the Shire's rate record is incorrect because inter alia the land the subject of the Miscellaneous Licences is not rateable land under the LG Act.
Section 6.26(2)(a)(ii)(I)
[58] LG Act, s 6.77.
The focus of these reasons is the proper construction of s 6.26(2)(a)(ii)(I) of the LG Act. For ease of reference, I set out s 6.26(2) below:
(2)The following land is not rateable land —
(a)land which is the property of the Crown and —
(i)is being used or held for a public purpose; or
(ii)is unoccupied, except —
(I)where any person is, under paragraph (e) of the definition of owner in section 1.4,[59] the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10 ha or a miscellaneous licence held under that Act; or
[59] 'Owner' is defined in s 1.4(e) of the LG Act to mean, relevantly, 'a person who' 'under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act …'.
(II)where and to the extent and manner in which a person mentioned in paragraph (f) of the definition of owner in section 1.4[60] occupies or makes use of the land;
[60] 'Owner' is defined in s 1.4(f) of the LG Act to mean 'where a person is in the unauthorised occupation of Crown land, means the person so in occupation'.
and
(b)land in the district of a local government while it is owned by the local government and is used for the purposes of that local government other than for purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the local government; and
(c)land in a district while it is owned by a regional local government and is used for the purposes of that regional local government other than for the purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the regional local government; and
(d)land used or held exclusively by a religious body as a place of public worship or in relation to that worship, a place of residence of a minister of religion, a convent, nunnery or monastery, or occupied exclusively by a religious brotherhood or sisterhood; and
(e)land used exclusively by a religious body as a school for the religious instruction of children; and
(f)land used exclusively as a non‑government school within the meaning of the School Education Act 1999; and
(g)land used exclusively for charitable purposes; and
(h)land vested in trustees for agricultural or horticultural show purposes; and
(i)land owned by Co‑operative Bulk Handling Limited or leased from the Crown or a statutory authority (within the meaning of that term in the Financial Management Act 2006) by that co-operative and used solely for the storage of grain where that cooperative has agreed in writing to make a contribution to the local government; and
(j)land which is exempt from rates under any other written law; and
(k)land which is declared by the Minister to be exempt from rates.
The contest as between the parties
The Applicant submits that the drafting of s 6.26(2)(a)(ii)(I) could be 'clearer'.[61] That somewhat understated submission may be accepted.
[61] ts 18, 23 January 2024.
What is clear, and agreed as between the parties, is that the general position is that land which is the property of the Crown, and which is unoccupied is not rateable land for the purposes of the LG Act. That is the plain meaning of s 6.26(2)(a)(ii) read in isolation up until the word 'except' before the em-dash.[62] That general position is subject to two exemptions. Those exemptions are set out in s 6.26(2)(a)(ii) following the em-dash.
[62] Australian Guide to Legal Citation, Fourth Edition, Melbourne University Law Review, cl 1.6.3 states that an em-dash may be used to indicate an interruption within a sentence or in place of a colon.
The contest is as to the meaning of paragraph (I) and precisely what is exempted from the general position that land that is the property of the Crown and which is unoccupied is not rateable land.
The Applicant's construction, reduced to its simplest terms, is that s 6.26(2)(a)(ii)(I) means that any prospecting licence (not exceeding 10 ha) and any miscellaneous licence held under the Mining Act are not rateable land. That is to say, these two forms of licences under the Mining Act are exempt from the payment of rates under the LG Act, regardless of whether the land in question is occupied.[63]
[63] The Applicant does not concede that the land is occupied in this case.
Against this, the Respondent's construction, reduced to its simplest terms, is that s 6.26(2)(a)(ii)(I) means that any prospecting licence (not exceeding 10 ha) and any miscellaneous licence held under the Mining Act are only exempt from being rateable land if, in fact, the land in question is unoccupied. That is to say, the question of whether such land is rateable land turns on whether the land is unoccupied. Only if unoccupied, is the land exempt from the obligation to pay rates.
Applicant's submissions
The Applicant submits as follows. Firstly, the plain and ordinary meaning of the text of s 6.26(2)(a)(ii) creates an exemption to the general presumption under s 6.26(1), whereby land which is the property of the Crown and unoccupied is not rateable land. The exception in s 6.26(2)(a)(ii) that land must be unoccupied is subject to two further exemptions set out in paragraphs (I) and (II).
When read with the definition of 'owner' in paragraph (e) in s 1.4, paragraph (I), in effect, reads that land which is the property of the Crown and unoccupied is not rateable land except in the case of a mining tenement (as defined under the Mining Act) other than by reason of that person being the holder of a miscellaneous licence or a prospecting licence which does not exceed 10 ha.
In this context, the words 'other than' carry their ordinary meaning and, when used together, have been judicially considered to mean 'besides, except, apart from' in the construction of legislative provisions.[64] The Applicant submits that this meaning accords with its construction.
[64] Automotive Invest Pty Limited v Commissioner of Taxation [2023] FCAFC 129 [31] in the context of ss 15 – 30 of the A New Tax System (Luxury Car Tax) Act 1999 (Cth) (Logan J).
The words 'by reason of' have been interpreted to be synonymous with 'because of' in the context of other provisions in the LG Act.[65]
[65] City of Rockingham v PMR Quarries Pty Ltd (Trading as WA Limestone Co) [2001] WASCA 317; (2001) 118 LGERA 93 [90] (Hasluck J).
The overall effect of s 6.26(2)(a)(ii)(I) is that all forms of mining tenements (other than a prospecting licence not exceeding 10 ha and a miscellaneous licence) are excluded from the application of s 6.26(2)(a)(ii) and, as a result, the land the subject of those tenements is rateable land regardless of whether the land is occupied.
By excluding all other forms of mining tenements from the application of s 6.26(2)(a)(ii), the statutory text indicates that the two forms of tenement referred to in paragraph (I) are to be treated differently. The Applicant submits that this is a significant textual indication that all tenement holders, other than the two forms to which paragraph (I) is expressly directed, are to be treated as rateable land under the LG Act.[66]
[66] Applicant's submissions, para 29.
For the tenements that paragraph (I) is directed to (being prospecting licences less than 10 ha and miscellaneous licences), the effect of s 6.26(2)(a)(ii)(I) is that the land the subject of these tenements is not rateable under the LG Act regardless of whether the land is occupied.
The Applicant submits that such a construction accords with the intent of the LG Act which includes a 'more efficient and effective local government'.[67] In this regard, Mr Russell submitted as follows:
… we say that broader object of having an efficient and effective system of levying rates is more consistent with our construction, which is simpler and more readily identifies those tenements which are rateable land and those which are, we say, exempt in the sense that they are not subject to the exception that land must not be occupied under 6.26(2)(a)(ii).
We say our construction is far simpler and provides for a more readily administered and effective system of levying rates[.][68]
[67] LG Act, s 1.3(2)(d).
[68] ts 13, 23 January 2024.
Secondly, the exception under s 6.26(2)(a)(ii)(II) supports the Applicant's construction that the exception in s 6.26(2)(a)(ii) applies to a miscellaneous licence regardless of whether it is occupied.
Paragraph (II) provides that any land which is the property of the Crown is rateable land if any person is, in fact, in unauthorised occupation or makes use of the land. The effect of paragraph (II) is similarly to exclude from the application of s 6.26(2)(a)(ii), land which is, in fact, occupied and treat that land as rateable (where an unauthorised occupier is an owner for the purposes of the LG Act).[69] In contrast to the exception in paragraph (I), there is no further exception of the type that follows the words 'other than by reason of'.
[69] LG Act, s 1.4, paragraph (f) of the definition of 'owner'.
Thirdly, extrinsic materials support the Applicant's construction in that it was intended by Parliament that miscellaneous licences would be exempt from the obligation to pay rates under the LG Act, unlike other tenement holders under the Mining Act.
Whilst there is no explanatory memorandum for the Local Government Bill 1995 (Bill), earlier drafts of the Bill included an 'exempt mining tenement' in (then) cl 6.25(2)(a)(ii)(I) and defined that term to mean 'a prospecting licence held under the [Mining Act] in respect of land the area of which does not exceed 10 hectares or a miscellaneous licence held under that Act'.[70]
[70] Bill, cl 6.24.
Clause 6.25(2)(a) of the Bill relevantly provided that the following was not rateable land, being land which is the property of the Crown, a local government or a regional local government and:
(ii)is unoccupied, except —
(I)where any person is, under paragraph (e) of the definition of "owner" in section 1.3, the owner of the land other than by reason of that person being the holder of an exempt mining tenement; or
(II)where and to the extent and manner in which a person mentioned in paragraph (f) or (g) of the definition of "owner"in section 1.3 occupies or makes use of the land[.]
The LG Act, as passed, 'replaced' the term 'exempted mining tenement' in paragraph (I) with the current wording 'a prospecting licence held under the [Mining Act] in respect of land of which does not exceed 10 ha or a miscellaneous licence held under that Act'.[71]
[71] Applicant's submissions, para 32.
The Applicant explains that the Committee notes do not address why the amendment was made but regard may be had to the Bill, in the form that it was introduced.[72] The Bill, as introduced, manifests an intention to treat land the subject of a miscellaneous licence as being exempt from being rateable land.
[72] Intepretation Act 1984, s 19(2)(h); see also National Rugby League Investments Pty Ltd(ACN 081 778 538)v Singtel Optus Pty Ltd (ACN 052 833 206) (NSD 201 of 2012) (2012) 201 FCR 147; 289 ALR 27 [81] (Finn, Emmett and Bennett JJ).
Fourthly, the reason that miscellaneous licences are expressly identified by paragraph (I) as not being rateable land reflects the nature of the ancillary and subsidiary rights conferred by such licences.[73] Unlike other mining tenements, miscellaneous licences can co-exist with other mining tenements. This is because:
(a)in general terms, a mining tenement cannot be applied for, or granted, in respect to land that is already the subject of a mining tenement under ss 18 and 27 of the Mining Act;[74]
(b)the basic scheme of the Mining Act is that there should not be competing mining tenements over the same ground and that the rights conferred by them should be held exclusively.[75] Miscellaneous licences represent an exception to this basic scheme;[76] and
(c)miscellaneous licences may be granted over the land the subject of another mining tenement and vice versa,[77] but only if they can meaningfully co-exist.[78]
[73] Prospecting licences that do not exceed 10 ha under the Mining Act are generally for minor or ancillary purposes or use.
[74] Blue Ribbon [61].
[75] Western Reefs, 550 (Malcom CJ); Blue Ribbon [79].
[76] Blue Ribbon [80].
[77] Mining Act, s 94A; Blue Ribbon [80].
[78] Mining Act, s 117; Blue Ribbon [84] – [86].
The term 'unoccupied' is not defined in the LG Act. The term 'occupier' is defined under s 1.4 as:
the person by whom or on whose behalf the land is actually occupied, or if there is no occupier, the person entitled to possession of the land and includes a person in unauthorised occupation of Crown land and where under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right …'.
The Applicant submits that that definition may assist in determining the meaning of 'unoccupied'.[79]
[79] Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641, 645 (Menzies J).
In TheCity of Rockingham v Port Kennedy Resorts Pty Ltd,[80] Wheeler J considered the meaning of land which is the property of the Crown and unoccupied under s 6.26(2)(a) in the context of the (then) Local Government Act 1960 (WA) but did not express any view on the exception under paragraph (I). In that case, the licence conferred a right to exclusive possession which weighed heavily in favour of the land being occupied, and therefore rateable land irrespective of whether it was, in fact, occupied.[81]
[80] TheCity of Rockingham v Port Kennedy Resorts Pty Ltd [1999] WASCA 300 (Port Kennedy Resorts).
[81] Port Kennedy Resorts, [34] (as to the licence), [42] – [49] (as to occupation). In Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296 (Pidgeon J, Ipp J, Parker J) (Port Kennedy Resorts Appeal) the Full Court observe that whether land is not rateable by reason of it being Crown land that is unoccupied does not necessarily involve the question of exclusive possession but concluded in that particular case the licence carried with it a right to exclusive possession: [20] – [21].
The question of whether land is unoccupied is not necessarily answered by the question of 'exclusive possession', but in determining that question, courts will consider the nature of the rights held.[82] The Applicant observes that the rights granted under a miscellaneous licence are of a different character to all other forms of tenement under the scheme of the Mining Act.
[82] Port Kennedy Resorts Appeal, [20] – [21].
In practical terms, a mining tenement (other than a miscellaneous licence) may either be occupied or unoccupied but will confer primary exploration or mining rights on a tenement holder upon grant. No other mining tenement (aside from a miscellaneous licence (s 91) or a special prospecting licence (s 43)) may be granted over that same land. The Applicant submits that this may inform the intent behind the exemptions set out in s 6.26(2)(a)(ii)(I).
The Applicant submits that, in contrast, a miscellaneous licence confers ancillary or subsidiary rights for purposes that are 'directly connected with mining',[83] and any rights of the holder must co-exist with any other rights under any other mining tenements in respect of the same land.[84] Another mining tenement may also be marked out, applied for or granted in respect of the same land that is the subject of a miscellaneous licence.[85] This regime, the Applicant submits, supports its construction that the land the subject of a miscellaneous licence is treated differently under the LG Act and is not rateable regardless of the question of occupation.
[83] Mining Act, s 91(6).
[84] Mining Act, s 91(7).
[85] Mining Act, s 94A.
Fifthly, the Applicant points to a scenario where both a miscellaneous licence and another form of tenement co-exist over the same land. The Applicant submits that, on the construction advanced by the Respondent, the land is rateable (if occupied) and each owner (being each tenement holder) is liable to pay rates.
This gives rise, the Applicant contends, to the prospect that two rates may be levied against different tenement holders as to the same land. The Applicant submits that this is not a circumstance contemplated by s 6.27 of the LG Act, which provides for multiple ratings where land the subject of a tenement, permit, drilling reservation, lease or licence under the Mining Act is rateable and the land may be rateable 'in the hands of the holder of another estate'.
In other words, multiple rating is only permitted where the other estate is not an estate arising from a grant under the Mining Act. This is a further indication that land the subject of a miscellaneous licence is to be treated differently under the LG Act and is not rateable.
Respondent's submissions
The Respondent's submissions draw attention to the fact that the effective levying of rates under the LG Act is an important purpose, in order to ensure the efficient and effective operation of local government.[86] Further, it is apparent that it is the 'land' that is rateable.[87]
The exception in s 6.26(2)(a)(ii)
[86] Trecap Pty Ltd and City of Swan [2006] WASAT 142; referred to with approval in Retirees WA (Inc) and City of Belmont [2010] WASAT 56 [46] – [48] and Shire of Katanning and Bride [No 2] [2011] WASC 248 [25].
[87] Fly by Night Musicians Club Ltd v City of Fremantle [2004] WASCA 161 [15] (Fly by Night Club).
The Respondent submits that it is plain, from the legislative text, that all land is rateable land unless the land falls within a prescribed exemption.[88]
[88] Fly by Night Club [33].
The Respondent observes that s 6.26(2) of the LG Act sets out the exemptions to the requirement, perforce of s 6.26(1), that all land within a local government district is rateable. One of the exceptions is unoccupied Crown land. The term 'Crown lands' is defined to mean:[89]
… lands of the Crown —
(a)not granted or contracted to be granted in fee simple; or
(b)not held or occupied —
(i)under conditional terms of purchase; or
(ii)with a right to acquire the fee simple[.]
[89] LG Act, s 1.4.
The State is authorised to lease or licence Crown land under various written laws, including the Land Administration Act 1997 (WA) and the Mining Act. Crown land that is within a local government district may be occupied or unoccupied.
The Respondent submits that on an ordinary reading of s 6.26(2)(a)(ii) of the LG Act, it was the legislature's intention to exempt unoccupied Crown land from the obligation to pay rates.
The term 'unoccupied' is not defined in the LG Act. The Respondent submits its meaning, in the context of the LG Act, appears to be unsettled.[90] At its highest, being occupied connotes a requirement of exclusive possession. At its lowest, it requires some physical act of occupation. A lease, by its nature, may amount to occupation, whereas a licence may not. In any event, the question of whether land is occupied or not for the purposes of s 6.26(2)(a)(ii) of the LG Act is a question of fact.[91]
The exception to the exception
[90] Port Kennedy Resorts [42] – [43].
[91] Port Kennedy Resorts [44].
There are two exceptions to the exception that unoccupied Crown land is not rateable. The relevant exception is where a person is the owner of a mining tenement, other than by reason of that person owning, relevantly, a miscellaneous licence. To be an 'owner' for the purposes of s 1.4(e) of the LG Act, the person only needs to hold a relevant mining tenement.
Section 18 of the Mining Act provides that all Crown land, not being Crown land that is the subject of a mining tenement, is open for mining.
The term 'mining tenement' is defined.[92] By its terms, it is plain that a mining tenement is granted in relation to land. The different types of mining tenements provide very different rights to holders.[93] For example, a mining lease provides a holder with rights of exclusive possession for a period of 21 years (with an option to renew).[94] However, an exploration licence provides a holder with the right to enter and explore the land for a period of 5 years (with options to renew).[95]
[92] Mining Act, s 8(1); refer [15] above.
[93] Refer [17] – [28] above.
[94] Mining Act, s 78(1).
[95] Mining Act, ss 61 and 66.
Given the nature of the different mining tenements, it is conceivable that, as a matter of fact, the holder of a mining tenement may not be in actual occupation of the land, or at least all of the land, the subject of the grant.
The Respondent submits that the grammatical meaning of subsection (2)(a)(ii) is that if a person owns land by reason of them holding a mining tenement, then, even if the land is unoccupied, the land is nevertheless rateable.
The exception to the exception to the exception
The exception above is subject to two further exceptions. Those two exceptions are if the mining tenement is either a prospecting licence less than 10 ha or a miscellaneous licence.
A miscellaneous licence is an ancillary instrument, in that it is granted in connection with mining operations. Unlike a general purpose lease, which is the other form of ancillary tenement, a miscellaneous licence does not provide rights of exclusive possession in relation to land.
Also, unlike other tenements, a miscellaneous licence may be granted over the land the subject of another mining tenement and vice versa.[96]
[96] Blue Ribbon [80]; Mining Act, ss 91 and 91A.
The purposes for which a miscellaneous licence can be granted are wide ranging, from a search for groundwater to the construction of minesite accommodation facilities.[97]
[97] Mining Regulations, reg 42B.
A prospecting licence is granted for a shorter term (4 years with an option to renew) and provides limited rights connected with exploration.
The Respondent submits that, plainly, the legislature did not intend for a miscellaneous licence or a small prospecting licence (less than 10 ha) to be construed as a general exception to subsection (2)(a)(ii). That is to say, the legislature did not intend that the holders of such tenements would be required to pay rates regardless of whether the land in question was occupied or not.
The Respondent submits that the grammatical meaning of s 6.26(2)(a)(ii)(I) is that if a person owns land by reason of them holding either a prospecting licence of less than 10 ha or a miscellaneous licence then:
(a)if the land is unoccupied, it is not rateable; or
(b)if the land is occupied, it is rateable.
In summary, the construction advanced by the Respondent is that the question of whether land the subject of a miscellaneous licence is rateable turns on whether that land is occupied. The Respondent submits that this construction is consistent with the ordinary meaning of the words used in the provisions, and is otherwise consistent with the context, objects and purpose of the LG Act.
Use of the land the subject of a miscellaneous licence for the purpose of, for example, the construction of minesite accommodation facilities, power generation and transmission facilities or storage facilities for minerals, inherently involve a substantial level of physical occupation.
A construction which would deny a local government rates in respect of Crown land which is 'occupied', simply because the owner of that land holds it pursuant to a miscellaneous licence, would not be consistent with the purpose of the LG Act.
Consideration
This proceeding arises in the Tribunal's review jurisdiction.[98]
[98] LG Act, s 6.77.
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[99] Neither party carries an onus.[100] The reference to 'correct and preferable' recognises that, where there is a discretion to be exercised, there may be more than one 'correct' decision.[101] However, the task before me does not involve an exercise of discretion. Rather, it is a question of statutory construction.
[99] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(2).
[100] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 33 [115] (Buss P, Murphy JA, Mitchell JA).
[101] LS v Mental Health Review Board [2013] WASCA 128 [92] (Murphy JA); Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [29] (Allanson J).
The principles of statutory construction are well known and settled. They were set out by the Court of Appeal in Mohammadi v Bethune,[102] as follows:
[102] Mohammadi v Bethune [2018] WASCA 98 [31] – [36] (Martin CJ, Mazza JA, Beech JA) (Mohammadi).
31The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
32The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
33The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
34Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. As we will explain later in these reasons, we think this is such a case.
35Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
36Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.
(citations omitted)
I must say that the proper construction of s 6.26(2)(a)(ii)(I) is not at all clear. I accept that both constructions that are contended for, are open.
Some of the construction arguments advanced by the Respondent are forceful and persuasive. In particular, it is apparent that a miscellaneous licence may be used for substantial purposes, such as a minesite accommodation facility[103] or a workshop and storage facility.[104]
[103] Mining Regulations, reg 42B(q).
[104] Mining Regulations, reg 42B(x).
Viewed in this way, it would seem to be inconsistent with the purpose of the rating scheme of the LG Act which, in general terms, only exempts land which is used for charitable, religious, or not-for-profit purposes from the requirement to pay rates, for some aspects of commercial mining activities to be exempt.
Aside from the exemption in paragraph (I), the only real commercial use that is otherwise exempt under s 6.26(2) are co-operative grain handling facilities, but only where a contribution will be made to the relevant local government. I accept that, as a matter of context, this is not an insignificant point that very much favours the construction advanced by the Respondent.
Nevertheless, in my view, the Applicant's construction of s 6.26(2)(a)(ii) is to be preferred for the following eight reasons.
Firstly, the starting point is that, by reason of s 6.26(1), all land is rateable land unless that land falls within an exemption as set out in s 6.26(2). One of those exemptions is land which is the property of the Crown[105] and is, relevantly, unoccupied. It is not in contest that the land the subject of the Miscellaneous Licences is the property of the Crown.
[105] In my view, the term 'property of the Crown' is broader than 'Crown lands'. However, in the context of this proceeding, nothing turns on that.
Paragraph (I) provides for an exception to the general position that unoccupied land which is the property of the Crown is not rateable. That exception is where land is 'owned' under a mining tenement granted pursuant to the Mining Act.
That is to say, land that is the subject of a mining tenement is rateable land; it matters not whether the land in question is unoccupied. That much is, in my view, plain from paragraph (I).
However, paragraph (I) then provides an exception to that exception in the case of two mining tenements: being miscellaneous licences and prospecting licences less than 10 ha. The effect of the exception to the exception is that land held under either of these forms of tenements is not rateable. Again, it is not a question of occupation. The exception applies to all such licences. In my view, it is, albeit just, tolerably clear that that is the intended overall effect of paragraph (I) as it relates to these two mining tenements.
Secondly, the structure, language and syntax of subsection (2)(a)(ii) supports this conclusion. In my view, the question of whether the land is unoccupied or not is irrelevant to what follows after 'unoccupied, …' in s 6.26(2)(a)(ii) for the purposes of paragraph (I). The word 'except' in this context relevantly means 'with the exclusion of' or 'otherwise than'.[106]
[106] Macquarie Dictionary Online.
Following the word 'except' paragraph (I) does two things. First, it provides that all land that is the property of the Crown that is owned for the purposes of s 1.4(e) (being land the subject of a mining tenement) is rateable land. Second, it exempts two forms of mining tenements from being rateable land; being land held under either a miscellaneous licence or a prospecting licence less than 10 ha.
The grammatical basis for the exemption for miscellaneous licences and prospecting licences less than 10 ha arises by the words 'other than by' and 'reason of' in paragraph (I) which, taken together, in this context mean, in effect, 'apart from' and 'because of'. That is to say, land that is the property of the Crown that is held under either a miscellaneous licence or a prospecting licence of less than 10 ha, is not captured by the general tenor of paragraph (I) that all mining tenements are rateable.
The overall meaning of paragraph (I) is that all other mining tenements, on land that is the property of the Crown, are rateable under the LG Act regardless of whether they are occupied or not.
Put another way, on its proper construction, s 6.26(2)(a)(ii)(I) has the result that:
(i)the question of whether land that is the property of the Crown is occupied or not is irrelevant where the land in question is the subject of a mining tenement; and
(ii)save for land held under a miscellaneous licence or a prospecting licence less than 10 ha, all land that is the subject of mining tenements under the Mining Act is rateable under the LG Act.
Thirdly, on this point, and as a matter of context, if the Respondent's construction were correct, and paragraph (I) was intended to invite an inquiry or assessment as to whether land that was the subject of a miscellaneous licence or a prospecting licence less than 10 ha was in fact occupied, one would expect to see the kind of language deployed in paragraph (II) in the context of a person who is in unauthorised occupation of Crown land.
In paragraph (II) the focus is very much on the 'extent and manner in which' the land may be being occupied. Yet those words do not appear in paragraph (I). There is no inquiry to be had into the 'extent and manner' by which a miscellaneous licence or a prospecting licence less than 10 ha may be occupied or not. In my view, that omission is not without significance and supports the construction that the question of occupation is simply not relevant under paragraph (I).
Fourthly, in my view, the nature of the rights that are granted pursuant to a miscellaneous licence or a prospecting licence less than 10 ha also inform the question of statutory purpose.
As was emphasised by the Applicant, in particular, miscellaneous licences and special prospect licences are licences only. They do not result in a grant of, in effect, exclusive possession over the tenement land. That is to say, a miscellaneous licence and a special prospecting licence coexist with any other mining tenements that have been granted.
In saying that, while paragraph (I) does refer to a 'prospecting licence held under the Mining Act 1978 in respect of an area of land which does not exceed 10 ha' it is a provision which in my view is largely, but I accept not exclusively, directed to special prospecting licences which cannot exceed 10 ha and only permit prospecting for gold.
However, even in the context of a prospecting licence that is not greater than 10 ha (not being a special prospecting licence), the requirement that such a licence be not greater than 10 ha indicates that the activities in question must be, in a relative sense, minor in scale and thus should be exempt from the requirement to pay rates.
In my view, these considerations provide a sound and logical explanation as to why Parliament would treat such tenements differently for the purposes of rating.
Fifthly, I agree with the Applicant that its construction provides for a simpler and more efficient rating system for local governments.
If the Respondent's construction were to be accepted, it would mean that local governments in some of the geographically largest, yet most remote, municipal areas (such as the Shire) would be required, on an annual basis, to interrogate and investigate each miscellaneous licence (on land that is the property of the Crown) to ascertain if the relevant tenement is occupied or not. That hardly provides for an efficient and effective rating system. That is especially so in circumstances where, as I have explained at [120] and [121] above, unlike paragraph (II), paragraph (I) does not include language directed to the 'extent and manner' in which the tenement holder 'makes use of the land'.
Sixthly, I accept the Applicant's submission that the fact that there may be multiple miscellaneous licences granted over the same land makes the question of rating extremely difficult.
I do not accept the Respondent's submission that s 6.27 of the LG Act contemplates the simultaneous rating of multiple mining tenements on the same land. Rather, I find, that s 6.27 is directed to the rating of other estates in land together with a mining tenement; not the rating of multiple mining tenements granted under the Mining Act. In this regard, I note that, contrary to the Respondent's submissions,[107] a mining tenement is not an estate in land nor is it a fixture. Rather, it is in the nature of personal property.[108]
[107] ts 35, 23 January 2024.
[108] TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576 [39] (French CJ, Gummow, Heydon, Crennan, Kiefel JJ); Golden Pig Enterprises Pty Ltd v O'Sullivan [2021] WASC 396 [45] (Allanson J).
As a result, in my view, the LG Act does not provide for the rating of multiple mining tenements over the same land. That result leaves a significant lacuna in the construction advanced by the Respondent.
Seventhly, the Bill is relevant parliamentary material to which regard may be had.[109] In National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (NRL Investments),[110] the Full Court of the Federal Court was dealing with an exemption to copyright infringement provided by s 111 of the Copyright Act 1968 (Cth), in the context of the broadcasting and the private recording of rugby league matches for domestic purposes.
[109] Interpretation Act 1984 (WA), s 19(2)(h).
[110] National Rugby League Investments Pty Ltd(ACN 081 778 538)v Singtel Optus Pty Ltd (ACN 052 833 206) (NSD 201 of 2012) (NRL Investments) (2012) 201 FCR 147; 289 ALR 27 [81] (Finn, Emmett and Bennett JJ).
The legislative history of s 111 was that it had been redrafted, and its meaning affected by other amendments, during the passage of the Copyright Amendment Bill 2006 (Cth). Three explanatory memoranda were prepared to explain the effect of the amendments.
The Full Court stated:[111]
We have referred earlier both to various iterations of the s 111 exception in the sequence of drafts which culminated in the provisions enacted and to the various Explanatory Memoranda dealing with those iterations. We note this for this reason. If earlier draft provisions and Explanatory Memoranda are to be referred to (whether for the purposes of s 15AB of the Acts Interpretation Act 1901 (Cth) or as a matter of common law principle for the purposes of construction of the Act: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408) care must be taken to ensure that the observations in the Explanatory Memorandum being relied upon were not addressed to, and were to be understood by reference to, a version of the provision in question which was later amended in a relevantly operative way prior to its enactment: see Pearce and Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis, 2011) at [3.27] and see also Avel Pty Ltd v Attorney-Generalfor New South Wales (1987) 11 NSWLR 126 at 128-129.
[111] NRL Investments [81].
Ultimately the Full Court examined the legislative history and concluded:[112]
The changes made by the two pre-enactment amendments removed the requirements that the copies be made and watched in domestic premises. There is nothing to suggest that they in any way affected the clear premise of both the originally proposed s 111 and s 111 as enacted[.]
[112] NRL Investments [88].
Here, I do not have the benefit of any explanatory memorandum. I am also mindful that I am being asked to consider an iteration of s 6.26(2)(a)(ii) that was not passed by the legislature. I therefore proceed, as I must, with care in considering how the Bill may inform the constructional choice before me.
Nevertheless, the Bill did provide that miscellaneous licences and prospecting licences less than 10 ha were intended to be exempt from being rateable land.
That is plain from the definition of 'exempt mining tenement' in the context of the (then) draft cl 6.25 in the Bill.[113] While it is true that Parliament ultimately saw fit to change the drafting of (what became) s 6.26(2)(a)(ii)(I), I accept the Applicant's submission that the same intent is still apparent in the version that was passed (albeit expressed far less clearly). Put another way, in my view, there is nothing in the language of s 6.26(2)(a)(ii), as passed, that indicates a change of intent.
[113] Refer [69] above.
I say this because, as I have explained at [114] and [115] above, paragraph (I) is not premised on the question of occupation. If the redrafting of cl 6.25(2)(a)(ii) of the Bill was to evince a change of intent that there should be some inquiry into the fact of occupation for the exemption to apply then, in my view, language would have been included that referred to the manner and extent to which the relevant land was being occupied or used and how that would inform or otherwise the operation of the exemption.
In an overall sense and as a matter of context, I find that the Bill supports the Applicant's construction.
Finally, in my view and building on what I explained at [122] to [126] above, it is not without significance, at least in the context of miscellaneous licences, that they are tenements that grant ancillary and subsidiary rights only.
The purposes for which miscellaneous licences may be granted must be directly connected to, but are not part of, 'mining operations',[114] as that term is defined in the Mining Act. That is to say, a miscellaneous licence is premised on there being extant mining activity on other mining tenements.
[114] 'Mining operations' is defined in s 8(1) of the Mining Act to mean 'any mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted combusted or refined or dealt with for the purpose of obtaining any mineral or processed mineral resource therefrom whether it has been previously disturbed or not and includes —
Miscellaneous licences can be granted only for one of the purposes identified in reg 42B of the Mining Regulations. Those purposes include:
(a) a road;
(m) a sulphur dioxide monitoring station;
(b) a tramway;
(n) a communications facility;
(c) an aerial rope way;
(o) a drainage channel;
(d) a pipeline;
(p) a pump station;
(e) a power line;
(q) a minesite accommodation facility;
(f) a conveyor system;
(r) a bore;
(g) a tunnel;
(s) a bore field;
(h) a bridge;
(t) a water management facility;
(i) taking water;
(u) a power generation and transmission facility;
(ia) a search for groundwater;
(v) a storage or transportation facility for minerals or mineral concentrate;
(j) hydraulic reclamation and transport of tailings;
(w) a minesite administration facility;
(k) an aerodrome;
(x) a workshop and storage facility;
(l) a meteorological station;
(y) a jetty.
While it may be accepted that some of these purposes would involve the substantial physical occupation of land, it is also the case that they are all purposes that are only ancillary to mining operations.
My point being that while the mining tenements upon which mining operations are conducted are rateable under the LG Act, a miscellaneous licence which accommodates only support infrastructure, is not. In my view, there seems to be some logic to that which provides an explanation as to why such tenements should not be subject to rates.
In this regard, I note that a general purpose lease, which is rateable, is also ancillary in nature. Two things can be said about that. The first is that a general purpose lease delivers exclusive occupation to the holder. The second is that a general purpose lease is for 'erecting, placing and operating machinery thereon in connection with mining operations carried on by the lessee', 'for depositing or treating thereon minerals or tailings' or 'for using the land for any other specified purpose directly connected with mining operations'. Such purposes are directly related to mining operations, not ancillary purposes.
Conclusion
I accept that both constructions that are contended for are open and that my conclusion is not free from doubt. Nevertheless, as the Court of Appeal explained in Mohammadi, where more than one construction is open, the construction that best serves the object of the legislation is to be preferred.
Here, for the reasons I have explained, it is my view that on its proper construction, the effect of s 6.26(2)(a)(ii)(I) is that, relevantly, a miscellaneous licence, the purposes of which are to support mining operations being conducted on other tenements, should not be rateable under the LG Act.
Contrary to the Respondent's submissions, such a construction does not deny a local government rates from mining operations. Rather, the result is that a miscellaneous licence, which only provides support for mining operations elsewhere, and which is not granted on an exclusive basis, is not rateable.
It follows that in my view the Miscellaneous Licences are not rateable under the LG Act and, as a result, there was no authority to issue the Rates Notices.
The parties should confer on the orders necessary to give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
19 MARCH 2024
(a)the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral; and
(b) operations by means of which salt or other evaporites may be harvested; and
(c)operations by means of which mineral is recovered from the sea or a natural water supply; and
(da) operations by means of which a processed mineral resource is produced and recovered; and
(d) the doing of all acts incident or conducive to any such operation or purposes[.]
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