Commissioner of State Revenue v EHL Burgess Properties Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0071

Commissioner of State Revenue	Applicant
v
EHL Burgess Properties Pty Ltd	Respondent

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JUDGES:	TATE and KYROU JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 August 2015
DATE OF JUDGMENT:	29 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 269
JUDGMENT APPEALED FROM:	EHL Burgess Properties Pty Ltd v Commissioner of State Revenue [2015] VSC 295 (Croft J)

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TAXATION – Land tax – Exemption for land outside ‘greater Melbourne’ that is used primarily for primary production – Meaning of ‘greater Melbourne’ – Whether respondent’s land located outside ‘greater Melbourne’ – Land Tax Act 2005 ss 64(1), 65(1).

TAXATION – Land tax – Definition of ‘greater Melbourne’ in s 64(1) of the Land Tax Act 2005 relied on definition of ‘metropolitan area’ in s 201(1) of the Melbourne and Metropolitan Board of Works Act 1958 as in force on 30 June 2007 – Definition of ‘metropolitan area’ relied on areas described in Third Schedule of 1958 Act – Those areas were described by reference to the municipal districts of Cities and Shires all but one of which (the City of Melbourne) had ceased to exist in 1994 or earlier – Whether judge erred in finding that references to such municipal districts lacked any legal meaning or effect – Application for leave to appeal granted – Appeal allowed.

STATUTORY INTERPRETATION – Principles – Context – Ascertaining legislative intention – Relevance of legislative history – Circumstances in which courts can read words into a statute – Circumstances in which an alternative interpretation can be adopted to avoid anomalous consequences – Whether courts have power to hold that a statutory provision is void for uncertainty – Circumstances in which a statute can operate on historical facts which have no other ongoing legal consequences.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S H Steward QC with Mr C P Young	Solicitor to the Commissioner of State Revenue
For the Respondent	Mr S R Morris QC with Mr T M Grace	Arnold Bloch Leibler

TATE JA
KYROU JA
ROBSON AJA:

Introduction and summary

This application for leave to appeal concerns the meaning of the phrase ’greater Melbourne’ in s 64(1) of the Land Tax Act 2005 (‘LTA’) primarily as it applies to the exemption from land tax in s 65(1) of that Act.

As at 31 December 2012 — which was the liability date for the land tax assessment that is the subject of this application — ss 64(1) and 65(1) of the LTA relevantly provided as follows:

64 Definitions
(1) In this Division—
…
greater Melbourne means—
(a) metropolitan area within the meaning of section 201 of the Melbourne and Metropolitan Board of Works Act 1958 (as in force immediately before its repeal); or
(b) any area declared by the Governor in Council under subsection (3) to be the metropolitan area.

…
65 Exemption of primary production land outside greater Melbourne
(1)Land outside greater Melbourne that is used primarily for primary production is exempt land.[1]

[1]Pursuant to s 7 of the LTA, land tax is imposed in respect of each year on all ‘taxable land’ in Victoria. That phrase is defined in s 3(1) to mean ‘land that is not exempt land’.

Section 64(3) of the LTA provided that ‘[t]he Governor in Council may, by Order published in the Government Gazette, declare an area to be the metropolitan area for the purposes of this section’. It is common ground that no such order was ever made that is relevant to this application.

Immediately before its repeal on 1 July 2007, s 201 of the Melbourne and Metropolitan Board of Works Act 1958 (‘MMBW Act’) provided:

201 Metropolitan area
(1) In this Part ‘metropolitan area’ means the area described in the Third Schedule and any other area which the Governor in Council declares pursuant to this section to be added to the metropolitan area but does not include any area which the Governor in Council declares pursuant to this section to be excised from the metropolitan area.
(2) The Governor in Council may from time to time by Order published in the Government Gazette—
(a) declare any area of land to be added to the metropolitan area for the purposes of this Part; or
(b) excise from the metropolitan area any area of land included in the metropolitan area for the time being.

It is common ground that the power in s 201(2) of the MMBW Act was not exercised in respect of any area of land that is relevant to this application.

Although it is lengthy, it is necessary to set out the Third Schedule to the MMBW Act (‘Third Schedule’) in full:

The Metropolitan Area consists of the following areas:
(a) The municipal districts of the Cities of Altona, Berwick, Box Hill, Brighton, Broadmeadows, Brunswick, Camberwell, Caulfield, Chelsea, Coburg, Collingwood, Croydon, Dandenong, Doncaster and Templestowe, Essendon, Fitzroy, Footscray, Frankston, Hawthorn, Heidelberg, Keilor, Kew, Knox, Malvern, Melbourne, Moorabbin, Mordialloc, Northcote, Nunawading, Oakleigh, Port Melbourne, Prahran, Preston, Richmond, Ringwood, Sandringham, South Melbourne, Springvale, St Kilda, Sunshine, Waverley, and Williamstown, and of the Shires of Bulla, Diamond Valley, Eltham, Melton, Werribee and Whittlesea.
(b) The following portion of the Shire of Cranbourne:
That portion commencing at a point on the municipal boundary at the north-eastern angle of Allotment 71C, Parish of Cranbourne; thence southerly by a road on the eastern boundary of that allotment to Bullarto-road; thence westerly by that road to the north-eastern angle of the Parish of Langwarrin; thence southerly by a road on the eastern boundary of that parish to the south-eastern angle of allotment 11; thence westerly by a road to the north-western angle of allotment 58; thence southerly by a road to the south-eastern angle of allotment 62; thence westerly to a road to the north-western angle of allotment 81; thence southerly by a road to the southern boundary of the said parish being a point on the municipal boundary; and thence generally westerly, generally northerly and generally south-easterly by that boundary to the point of commencement.
(c) The following portion of the Shire of Pakenham:
That portion west of a line commencing at a point on the municipal boundary being the north-eastern corner of Crown Allotment 21, Section F, Parish of Gembrook, County of Evelyn; thence southerly by the eastern boundary of that allotment and the western boundary of Crown Allotment 73 to the northern boundary of the County of Mornington; thence generally southerly by that boundary and the eastern boundary of Crown Allotment 97 to the north-eastern angle of Crown Allotment 97A; thence westerly by the southern boundary of that allotment to Bourkes Creek; thence southerly by that creek to the northern boundary of Crown Allotment 67, Section C; thence southerly and westerly by that allotment and the southern boundary of Crown Allotment 68, Section C, to the north-west corner of Crown Allotment 65, Section C; thence generally southerly and easterly by that allotment to Toomuc Creek; thence generally southerly by that creek to the southern boundary of the municipality.
(d) All the lands which are vested in, or purchased or acquired by, or under the management of, the Melbourne Port Corporation under the Port Services Act 1995.
(e) the docklands area within the meaning of the Docklands Act 1991.

It is common ground that all of the Cities and Shires — other than the City of Melbourne —that are referred to in paras (a), (b) and (c) of the Third Schedule ceased to exist prior to the commencement of the LTA on 1 January 2006. Most of them were abolished in 1994. The Shire of Whittlesea (which is referred to in para (a)) ceased to exist as a shire on 15 April 1988. The City of Whittlesea was proclaimed on that day and was subsequently abolished on 15 December 1994. The history of the Whittlesea municipal district is discussed further at [35] to [41] below.

The dispute between the parties arises from a notice of assessment dated 29 November 2013 (‘Assessment’) by which the applicant required the respondent to pay land tax for the 2013 tax year. The Assessment was in respect of the following parcels of land which comprised the respondent’s farming property known as ‘Lockerbie’: 300 Hume Highway, Beveridge; 1450 Hume Highway, Kalkallo; 1440 Hume Highway, Kalkallo; O1440 Hume Highway, Kalkallo; and 110 Dwyer Street, Kalkallo.

The land referred to at [8] above (‘Lockerbie Land’) is situated partly within the boundaries of the Shire of Whittlesea, as they existed on the day before the Shire ceased to exist on 15 April 1988 (‘Lockerbie Land within the Shire of Whittlesea’) and partly within the boundaries of the Shire of Kilmore until 18 January 1995 and its successor after that date, the Mitchell Shire Council (‘Lockerbie Land within the Mitchell Shire Council’). The Lockerbie Land within the Mitchell Shire Council comprises 300 Hume Highway, Beveridge.

It was common ground that all of the Lockerbie Land was used primarily for primary production for the purposes of the exemption in s 65(1) of the LTA. The issue in contention was whether any part of that land was outside ‘greater Melbourne’.

By letter dated 29 January 2014, the respondent objected to the Assessment (‘Objection’). In relation to the Lockerbie Land within the Mitchell Shire Council, the respondent objected on the basis that it engaged the exemption in s 65(1) of the LTA. In respect of the remainder of the Lockerbie Land, the respondent objected on other grounds.

On 10 June 2014, the applicant disallowed the Objection. In his Notice of Determination, the applicant determined that the s 65(1) exemption was not available because s 67, the provisions of which were said to have primacy over s 65(1), was not satisfied. Section 67 is not presently relevant, as the applicant now accepts that s 65(1) is to be assessed on its own terms.

On 2 July 2014, the respondent requested that the applicant treat the Objection as an appeal and cause it to be set down for hearing in the Trial Division of this Court.

At trial, the respondent sought leave to add as a ground of Objection that all of the Lockerbie Land (and not just the Lockerbie Land within the Mitchell Shire Council) was exempt under s 65(1) of the LTA on the basis that all of it was outside ‘greater Melbourne’. The applicant did not oppose that leave being granted. The respondent contended that, because the City of Whittlesea[2] had been abolished on 15 December 1994, the land that was previously within its boundaries did not fall within the Third Schedule as at 31 December 2012 and was, accordingly, not within ‘greater Melbourne’.
[2]The relationship between the Shire of Whittlesea and the City of Whittlesea is discussed at [38] below.

The applicant accepted that the Lockerbie Land within the Mitchell Shire Council was exempt from land tax pursuant to s 65(1) of the LTA on the basis that that land was outside ‘greater Melbourne’. However, in respect of the Lockerbie Land within the Shire of Whittlesea, the applicant contended that that land fell within the boundaries of the Shire of Whittlesea prior to its cessation and, by virtue of this historical fact, constituted an area designated by para (a) of the Third Schedule and, accordingly, formed part of ‘greater Melbourne’.

The judge held that the abolition or cessation of the Cities and Shires listed in paras (a), (b) and (c) of the Third Schedule — other than the City of Melbourne — prior to 31 December 2012 meant that there was no statutory criterion by which the definition of ‘greater Melbourne’ could extend beyond the City of Melbourne by virtue of paras (a), (b) or (c). Accordingly, the judge concluded that all of the Lockerbie Land was exempt from land tax under s 65(1) of the LTA.[3]
[3]See [43]–[44] below.

The practical effect of the judge’s decision was to limit the operative words of the Third Schedule to the following:

The Metropolitan Area consists of the following areas:
(a) The municipal [district] of the [City] of … Melbourne …

…
(d) All the lands which are vested in, or purchased or acquired by, or under the management of, the Melbourne Port Corporation under the Port Services Act 1995.

(e) the docklands area within the meaning of the Docklands Act 1991.

For reasons that follow, the application for leave to appeal will be granted,[4] the appeal will be treated as having been instituted and heard at once and the appeal will be allowed.
[4]At the hearing of the application for leave to appeal, the respondent conceded that the matter raised a question of public importance which this Court has held is relevant to a consideration of whether the appeal has a real prospect of success: Supreme Court Act 1986 s 14C; Kennedy v Shire of Campaspe [2015] VSCA 47; Note Printing Australia Ltd vLeckenby (2015) 106 ACSR 147, 169–71 [78]–[82]. The respondent accepted, on that basis, that the application should be granted but submitted that the appeal should be dismissed.

History of the LTA and the MMBW Act

In order to understand the parties’ contentions on the interpretation of the definition of ‘greater Melbourne’, it is necessary to examine the history of the LTA and the MMBW Act.

With effect from 1 January 1969, s 2(f) of the Land Tax Act 1968 inserted an exemption from land tax for ‘[l]and or lands used for primary production’ in s 9(5) of the Land Tax Act 1958 (‘1958 LTA’). The exemption did not contain a geographical limitation.

The 1958 LTA was subsequently amended by s 3 of the Land Tax Act 1970 with effect from 24 December 1973. Section 9(5) of the 1958 LTA was replaced by s 9(1)(h), which provided an exemption for ‘land which is used for primary production’.

Section 8 of the Land Tax Act 1973 subsequently amended s 3 of the Land Tax Act 1970 with effect from 23 December 1973. Section 9(1)(h) was re-worded so that the exemption applied to ‘any parcel of land — none of which is within the metropolitan area (within the meaning of the Town and Country Planning Act 1961) and which is land used for primary production’. At that time, ‘metropolitan area’ was defined in the Town and Country Planning Act 1961 as the area described in the Second Schedule to that Act and any area declared by the Governor in Council to be added to the metropolitan area. Paragraph (a) of the Second Schedule stated that the metropolitan area consisted of areas comprising the ‘municipal districts’ of certain Cities and Shires. Paragraph (b) stated that the metropolitan area also consisted of ‘[s]o much as lies within a distance of fifteen miles from the post office situate at the corner of Bourke-street and Elizabeth-street in the city of Melbourne of the municipal districts of the shires of Bulla, Eltham, Werribee, and Whittlesea’.

Section 9 of the 1958 LTA was again amended by s 4(1) of the Land Tax Act 1975, which replaced s 9(1)(h) with s 9(1)(ga) and (h), with effect from 1 January 1976. Section 9(1)(ga) and (h) provided that the following land was exempt from land tax:

(ga) land outside the metropolitan area (within the meaning of the Town and Country Planning Act 1961) which is land used for primary production;
(h) land comprising one parcel which is wholly or partly within the metropolitan area (within the meaning of the Town and Country Planning Act 1961) none of which is within an urban zone and which is land used for primary production …

With effect from 1 July 1985, s 34 of the Town and Country Planning (Transfer of Functions) Act 1985 inserted a new s 201 into the MMBW Act, which provided as follows:

(1) In this Part, ‘metropolitan area’ means the area described in the Third Schedule and any other area which the Governor in Council declares pursuant to this section to be added to the metropolitan area but does not include any area which the Governor in Council declares pursuant to this section to be excised from the metropolitan area.
(2) The Governor in Council may from time to time by Order published in the Government Gazette—
(a) declare any area of land contiguous with the area described in the Third Schedule, or with any area added under this Act to the metropolitan area, to be added to the metropolitan area for the purposes of this Part; or
(b) excise from the metropolitan area any area of land included in the metropolitan area for the time being.

Section 43 of the Town and Country Planning (Transfer of Functions) Act 1985 inserted a new Third Schedule into the MMBW Act with effect from 1 July 1985. Paragraph (a) of that schedule remained in the form set out at [6] above until the MMBW Act was repealed on 1 July 2007.

With effect from 16 February 1988, s 9(1)(ga) and (h) of the 1958 LTA were amended by item 43 of the Schedule to the Planning and Environment Act 1987 to provide that the meaning of ‘metropolitan area’ in those provisions was that in s 201 of the MMBW Act as opposed to the Town and Country Planning Act 1961.

By s 51(2) of the Melbourne Water Corporation Act 1992, s 201(2)(a) of the MMBW Act was amended by the removal of the words ‘contiguous with the area described in the Third Schedule, or with any area added under this Act to the metropolitan area’. Section 201 was not amended again until it was repealed on 1 July 2007.[5]
[5]See [4] above.

With effect from 1 January 2006, s 116 of the LTA repealed the 1958 LTA Act.

In its original form, the definition of ‘greater Melbourne’ in s 64(1) of the LTA provided that that phrase ‘has the same meaning that “metropolitan area” has in section 201 of the [MMBW Act]’. The MMBW Act was repealed on 1 July 2007 by s 163 of the Water (Governance) Act 2006 (‘WGA’). Schedule 1 items 3.1 and 3.2 of the WGA replaced the definition of ‘greater Melbourne’ in s 64(1) of the LTA with the definition set out at [2] above and inserted s 64(3) in the LTA. The new definition made clear that, despite the repeal of the MMBW Act, the definition of ‘metropolitan area’ in that Act as in force immediately before its repeal would continue to apply for the purposes of the LTA.

Although amendments to the LTA after the liability date of 31 December 2012 do not affect this application, they are set out below to indicate how Parliament has recently clarified the meaning of ‘greater Melbourne’.

In 2014, pursuant to s 22(1) of the Building a Better Victoria (State Tax and Other Legislation Amendment) Act 2014 (‘2014 Act’), the definition of ‘greater Melbourne’ in s 64(1) of the LTA was replaced by the following definition:

greater Melbourne means the aggregate area consisting of—
(a) the area within the municipal district of each Council listed in Part 1 of Schedule 2; and
(b) the area within an urban growth boundary specified in a planning scheme that is in force in the municipal district of each Council listed in Part 2 of Schedule 2 …

Section 25 of the 2014 Act inserted sch 2 into the LTA, which relevantly provides:

GREATER MELBOURNE
PART 1
Banyule City Council
…
Melbourne City Council
…
Yarra City Council
PART 2
Brimbank City Council
…
Hume City Council
…
Mitchell Shire Council
…
Whittlesea City Council
Wyndham City Council
Yarra Ranges Shire Council

The Explanatory Memorandum to Building a Better Victoria (State Tax and Other Legislation Amendment) Bill 2014 (‘2014 Bill’) relevantly provided:

The current definition of greater Melbourne is defined by reference to the metropolitan area within the [MMBW Act]. This definition is difficult to apply because it refers to administrative boundaries that are no longer in use, such as old council boundaries.[6]

[6]Explanatory Memorandum, Building a Better Victoria (State Tax and Other Legislation Amendment) Bill 2014, 13–14.

During the second reading speech in the Legislative Assembly for the 2014 Bill, the Treasurer relevantly stated:

The definition of ‘greater Melbourne’ relies on an old Melbourne board of works definition and refers to administrative boundaries that are no longer in use, such as old council boundaries. It is also inconsistent with the boundaries used for other planning regimes and, over time, has become somewhat confusing and difficult to apply. This bill aligns the definition of ‘greater Melbourne’ with the more recently introduced urban growth boundary, a more appropriate way to define the greater Melbourne boundary for the purposes of the primary production land exemptions.[7]
[7]Victoria, Parliamentary Debates, Legislative Assembly, 7 May 2014, 1448 (Michael O'Brien).

History of the Whittlesea municipal district

The following summary of the recent history of the Whittlesea municipal district will assist in understanding the judge’s decision and the parties’ contentions.

The Shire of Whittlesea and its municipal boundaries were established in the nineteenth century.[8] Those boundaries changed from time to time.
[8]See, eg, item 124 of the Second Schedule to the Local Government Act 1890.

Section 3(2)(a) of the Local Government Act 1958 provided that the corporation of every Shire shall be deemed to be a municipality and that the district under the local government of a municipality shall be called its municipal district.

Section 24B of the Local Government (Board of Review) Act 1982 conferred upon the Governor in Council various powers relating to the constitution, subdivision and abolition of municipal districts generally. Under s 24B(k), the Governor in Council was given the power to proclaim a Shire or Borough to be a City. By proclamation dated 29 March 1988, the Governor in Council ‘proclaim[ed] the Shire of Whittlesea to be a City under the name of the City of Whittlesea with effect on and from 15 April 1988.’[9] The proclamation did not contain any further provisions. Accordingly, the ‘Shire of Whittlesea’ ceased to exist on 15 April 1988.
[9]See Victoria, Victoria Government Gazette, No S23, 30 March 1988, 1.

Section 5 of the Local Government (Consequential Provisions) Act 1989 provided as follows:

(a) as from the commencement of that section:

(i) every corporation was deemed to have been constituted under the Local Government Act 1989 (‘LGA’); and

(ii) the body corporate of each municipality was deemed to be the Council of the municipality and ‘any references to a municipality in any document whatsoever [was] deemed to be a reference to the Council of the municipality’; and

(b) the name of a Shire, Borough, Town or City in existence immediately before the commencement of that section remained the same until the name was changed in accordance with the LGA.

In 1993, s 3 of the Local Government (General Amendment) Act 1993 inserted a new pt 10C into the LGA, which was titled ‘Restructuring Orders’ and comprised of ss 220P to 220T. Section 220Q gave extensive powers to the Governor in Council, including the power to alter the boundaries of a municipal district by adding or removing an area to or from an existing municipal district and the power to constitute a new municipal district by amalgamating existing municipal districts.

On 13 December 1994, the Governor in Council made the following order under pt 10C of the LGA which abolished the City of Whittlesea and many other municipalities with effect from the appointed day (15 December 1994):

3. Constitution of New Councils
(1) On the appointed day there is constituted—
…
(u) a body corporate constituted as a City Council by the name of the Whittlesea City Council;

…
(2) On the appointed day the following councils cease to exist—
…
(an) City of Whittlesea.

…
61. Boundaries of the municipal district of the Whittlesea City Council
On the appointed day the boundaries of the municipal district of the Whittlesea City Council shall be fixed as described in Schedule 27.

62. Whittlesea City Council is Successor in Law
On the appointed day … the Whittlesea City Council is the successor in law of the [City of Whittlesea].

…
85. References — Transitional Provisions
From the appointed day, any reference in any instrument or any other document of any kind to the former Council is, except as otherwise provided in this Order, to be construed as a reference to a newly constituted Council, as the case may be, unless the contrary intention appears.[10]

[10]See Victoria, Victoria Government Gazette: Special, No S97, 15 December 1994, 5, 6, 12, 15.

As a matter of interest, the Mitchell Shire Council was constituted by an Order in Council dated 15 November 1994 and became the successor in law to the Shires of Broadford and Pyalong and the Rural City of Seymour.[11] By a further Order in Council dated 17 January 1995, with effect from 19 January 1995: the Shire of Kilmore was abolished; the area within the boundaries of the Shire of Kilmore was added to the Mitchell Shire Council; and the Mitchell Shire Council became the successor in law of the Shire of Kilmore.[12]
[11]See Victoria, Victoria Government Gazette: Special, No S87, 18 November 1994.
[12]See Victoria, Victoria Government Gazette: Special, No S2, 19 January 1995.

Decision of the trial judge

The judge concluded that the area of ‘greater Melbourne’, as defined in s 64(1) of the LTA, ‘did not include any of the municipal districts in any of the named Cities or Shires in the Third Schedule, with the exception of the City of Melbourne.’[13]
[13]EHL Burgess Properties Pty Ltd v Commissioner of State Revenue [2015] VSC 295, [83]( ‘Reasons’).

The judge reached this conclusion partly by adopting the written submissions of the respondent. The main focus of his reasons was in rejecting the applicant’s submission that para (a) of the definition of ‘greater Melbourne’ in s 64(1) of the LTA was a ‘fixed time’ provision. By this, the applicant meant that para (a) relied upon physical areas delineated by the boundaries of municipal districts and that, notwithstanding that all but one of those districts had ceased to exist well before the last day upon which s 201 of the MMBW Act was in force (30 June 2007), those boundaries were nevertheless ascertainable on that day for the purposes of the definition of ‘greater Melbourne’. The judge’s reasons for rejecting this submission may be summarised as follows:

(a) The language of s 64 of the LTA, s 201 of the MMBW Act and the Third Schedule did not indicate which time was to be treated as the ‘fixed time’ by reference to which the definition of ‘greater Melbourne’ was to be given operative effect.[14] Likewise, the legislative history of the definitions of ‘greater Melbourne’ and ‘metropolitan area’ did not assist in identifying the ‘fixed time’.[15]
[14]Reasons [47]–[48], [55].
[15]Reasons [49]–[51].

(b) While the Third Schedule referred to various physical areas of land, those areas were identified or ‘tagged’ by reference to a local government entity such as a ‘City’ or a ‘Shire’. Once any given physical area of land ceased to be able to be identified by reference to the named local government entity, there was no longer any identifiable physical area of land for the purposes of the definition of ‘greater Melbourne’. This was because, in order for a physical area of land to exist, it must attach to the named municipality.[16]
[16]Reasons [54]–[55].

(c) Thus, in the case of the reference to the Shire of Whittlesea, the Third Schedule spoke of ‘the municipal [district] of the … [Shire] of … Whittlesea’ which s 64(1) of the LTA required to be identified as at the last day on which s 201 of the MMBW Act was in force (30 June 2007). While that area of land was capable of being identified as at 14 April 1988 (and as at 14 December 1994 when the municipal district was known as the City of Whittlesea) it was not capable of being identified at any time on or after 15 December 1994, such as 30 June 2007.[17]
[17]Reasons [54].

(d) In the light of the abolition of all but one of the ‘Cities’ and ‘Shires’ referred to in paras (a), (b) and (c) of the Third Schedule in December 1994 and the absence of any transitional provisions in the MMBW Act or the LTA, after that time the ‘metropolitan area’ consisted of the municipal district of the City of Melbourne and the areas of land described in paras (d) and (e) of the Third Schedule.[18] The abolition of the ‘Cities’ and ‘Shires’ listed in the Third Schedule — other than the City of Melbourne — in December 1994 without any transitional provision in any statute for their continuation meant that those terms had no meaning and were incapable of being applied as legislation. No other construction was open on the drafting of the Third Schedule. Inconvenience or improbability of outcome could not justify the adoption of an alternative construction because the language of the legislation did not support any such alternative construction. Likewise, an alternative construction could not be based on some a priori assumption about the purpose of the legislation.[19]

(e) The applicant’s preferred construction involved the addition of the word ‘former’ before ‘Cities’ and ‘Shires’ in para (a) of the Third Schedule. This approach was impermissible as a matter of statutory construction, as it involved the reconstruction, or rewriting, of legislation.[20]

(f) As no part of the Lockerbie Land was located in the only municipal district that had legislative meaning as at 30 June 2007, namely, the City of Melbourne, the whole of the Lockerbie Land was outside ‘greater Melbourne’ for the purposes of s 65(1) of the LTA.[21]

[18]Reasons [54].

[19]Reasons [72].

[20]Reasons [60].

[21]Reasons [84]–[85].

The judge made an order that the appeal be allowed, that the Assessment be reduced to nil and that the applicant pay the respondent’s costs of the appeal (‘Judge’s Order’).

Proposed grounds of appeal

The applicant’s application for leave to appeal relies on the following proposed grounds of appeal:

1. The primary judge erred … in construing the statutory definition of ‘greater Melbourne’ so that the areas of the Cities and Shires identified in the Third Schedule to the MMBW Act only had legal meaning and effect for so long as those Cities and Shires had continued legal existence in the applicable year of taxation.
2. The primary judge should have construed the statutory definition of ‘greater Melbourne’ so that the Cities and Shires in the Third Schedule, and their respective municipal districts, were matters of historical fact, and identified ‘greater Melbourne’ by reference to the boundaries of those ‘municipal districts’ as at the time immediately before the repeal of the MMBW Act (30 June 2007), or if earlier abolished, as at the time immediately before cessation; alternatively as at 1985; alternatively as at 1987.

Principles of statutory interpretation

A number of decisions of the High Court have adopted a purposive approach to statutory construction.[22] In Project Blue Sky Inc v Australian Broadcasting Authority,[23] the majority[24] stated that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. They stated that the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole. Thus, according to the majority, ‘the process of construction must always begin by examining the context of the provision that is being construed’.[25]
[22]The summary of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’) set out at [47]–[49] below is taken from Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230, [28]–[30] (‘Di Paolo’).
[23](1998) 194 CLR 355.
[24]McHugh, Gummow, Kirby and Hayne JJ.
[25]Project Blue Sky (1998) 194 CLR 355, 381 [69].

The majority later stated:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[26]

[26]Project Blue Sky (1998) 194 CLR 355, 384 [78] (citations omitted).

The majority also adopted the reasoning of Francis Bennion in Statutory Interpretation, who relevantly stated:

[T]here needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[27]

[27]Francis Bennion, Statutory Interpretation (Butterworths, 3^rd ed, 1997) 343–4 (citations omitted), quoted in Project Blue Sky (1998) 194 CLR 355, 384 [78].

The majority also stressed that ‘a court construing a statutory provision must strive to give meaning to every word of the provision.’[28]
[28]Project Blue Sky (1998) 194 CLR 355, 382 [71].

It is clear that the ‘context’ which a court is required to consider as part of the ‘modern approach to statutory interpretation’ encompasses the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy.[29] It is therefore not unusual for courts to examine a prior statutory provision or legislative scheme dealing with the same subject matter to enable them to construe a current statute.[30] The High Court and this Court have done so on previous occasions.[31] It has been observed that the history of a legislative scheme may assist in ascertaining the legislative intent.[32] It has also been observed that, by comparing succeeding legislative schemes that deal with a single subject, the function of particular provisions within each scheme is illuminated. For example, the introduction of particular provisions may be seen to have particular significance in the light of what has been retained and what has been removed.[33]
[29]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (‘CIC’).
[30]Geaghan v D'Aubert (2002) 36 MVR 542, 544 [22] (‘Geaghan’).
[31]Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, 256 [12], 258–60 [20]–[21]; Maroondah City Council v Fletcher (2009) 29 VR 160, 165 [26] (‘Maroondah’).
[32]Geaghan (2002) 36 MVR 542, 544 [22].
[33]Hodgson v Crane (2002) 55 NSWLR 199, 207 [29].

Context also may include time, place, and any other circumstance that could rationally assist understanding of meaning.[34] It may encompass the facts and circumstances which were within the knowledge or contemplation of the legislature.[35] Therefore, in construing a statute, a court may have regard to the matrix of facts in which the statute was enacted.[36]
[34]Singh v Commonwealth (2004) 222 CLR 322, 332 [12] (‘Singh’); Maroondah (2009) 29 VR 160, 166 [27].
[35]Singh (2004) 222 CLR 322, 332 [12].
[36]Minister for Immigration & Multicultural Affairs v WABQ (2002) 121 FCR 251, 281 [106] (‘WABQ’), citing Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 646. See also WABQ (2002) 121 FCR 251, 271 [71].

Similarly, a statutory definition must not be construed in isolation. Instead, one must read the words of the definition into the words of the substantive provision to which it applies and that provision must then be construed having regard to its purpose and the mischief it was designed to overcome.[37]
[37]Kelly v The Queen (2004) 218 CLR 216, 253 [103] (‘Kelly’).

Section 35(a) of the Interpretation of Legislation Act 1984 provides:

35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object …

Section 35(a) of the Interpretation of Legislation Act 1984 contemplates a limited choice between ‘a construction that would promote the purpose or object [of the Act]’ and one ‘that would not promote that purpose or object’.[38] It is distinguishable from, for example, s 14A(1) of the Acts Interpretation Act 1954 (Qld),[39] which requires preference to be given to that interpretation which will best achieve the purpose of the Act.[40]
[38]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262 (‘Chugg’); Lacey v A-G (Qld) (2011) 242 CLR 573, 593 [46] (‘Lacey’). Where a statute has multiple, and potentially conflicting, purposes, see My Environment Inc v Vic Forests [2013] VSCA 356.
[39]See also s 15AA of the Acts Interpretation Act 1901 (Cth).
[40]Lacey (2011) 242 CLR 573, 593 [46]; Chugg (1990) 170 CLR 249, 262; Govic v Boral Australia Gypsum Ltd [2015] VSCA 130, [128].

In more recent cases, the High Court has given renewed emphasis to the primacy of the actual language used in the text of the statutory provision under consideration.[41] For example, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[42] Hayne, Heydon, Crennan and Kiefel JJ stated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[43]

[41]The principles set out at [56]–[61] below are adapted from Di Paolo [2015] VSCA 230, [26], [32]–[35], [38]–[39]. See also SM v The Queen [2013] VSCA 342, [49].

[42](2009) 239 CLR 27 (‘Alcan’).

[43]Alcan (2009) 239 CLR 27, 46–7 [47] (citations omitted). This statement was endorsed by this Court in Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [99].

In that case, the High Court considered the approach of the Northern Territory Court of Appeal to the construction of a provision of the Taxation (Administration) Act (NT). French CJ stated that the Court of Appeal had construed that statute by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes which paid insufficient regard to the statute’s clear words.[44] Hayne, Heydon, Crennan and Kiefel JJ stated that fixing upon the general purpose of a particular statute carried with it the danger that the text did not receive the attention it deserved.[45]
[44]Alcan (2009) 239 CLR 27, 32 [5].
[45]Alcan (2009) 239 CLR 27, 47 [51].

In Saeed v Minister for Immigration and Citizenship,[46] the High Court considered whether a section of the Migration Act 1958 (Cth), inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), had the effect of excluding the hearing rule of natural justice with respect to the obligations of the Minister when dealing with applications by a non-citizen for a visa. Both the explanatory memorandum to the amending legislation and its second reading speech made it plain that the terms of the section were intended to overcome a previous High Court decision in which the majority held that the exclusion of the requirements of natural justice required a clear expression of intention and that no such expression was present in the Migration Act 1958 (Cth).[47]
[46](2010) 241 CLR 252 (‘Saeed’).
[47]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 85 [95], 94 [128], 113 [181], cited in Saeed (2010) 241 CLR 252, 263–4 [25].

French CJ, Gummow, Hayne, Crennan and Kiefel JJ stressed that, insofar as legislative ‘intention’ was to be ascertained, what was involved was an inquiry into the intention manifested by the legislation. Accordingly, they held that statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, could not overcome the need to carefully consider the words of the statute to ascertain its meaning.[48]
[48]Saeed (2010) 241 CLR 252, 264–5 [31].

Similarly, in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[49] the High Court, citing Alcan, stated:

‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[50]

[49](2012) 250 CLR 503 (‘Consolidated Media’).

[50]Consolidated Media (2012) 250 CLR 503, 519 [39] (citations omitted).

The above statement was endorsed by the High Court in Thiess v Collector of Customs.[51]
[51](2014) 250 CLR 664, 671 [22].

In Certain Lloyd's Underwriters v Cross,[52] French CJ and Hayne J stated that the purpose of a statute resides in its text and structure. They further stated that the determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted.[53] They also stated that a related danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose.[54]
[52](2012) 248 CLR 378 (‘Lloyd’s’).
[53]Lloyd’s (2012) 248 CLR 378, 389 [25].
[54]Lloyd’s (2012) 248 CLR 378, 390 [26].

Similarly, in Lygon Nominees Pty Ltd v Commissioner of State Revenue,[55] Redlich JA, with whom Ashley JA and Bell AJA agreed, stated:

The question that falls for determination is not to be answered by asserting the existence of any purpose or legislative intention unless that purpose or intention is found reflected in the provisions of the Act. Appeals to general notions of justice may do no more than mask the absence of the foundation in the legislation for the conclusion which is asserted.[56]

[55](2007) 23 VR 474 (‘Lygon’).

[56]Lygon (2007) 23 VR 474, 488 [49].

A related issue that arises is whether, in construing a statutory provision, a court is justified in reading that provision as though it contains additional words or omitted words.

In Wentworth Securities Ltd v Jones,[57] Lord Diplock set out three conditions that must be fulfilled in order to justify reading words into a statute. First, it must be possible to determine from a consideration of the provisions of the statute read as a whole precisely what the mischief was that it was the purpose of the statute to remedy. Secondly, it must be apparent that the draftsperson and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of the statute was to be achieved. Thirdly, it must be possible to state with certainty what additional words would have been inserted by the draftsperson and approved by Parliament had their attention been drawn to the omission.[58]
[57][1980] AC 74 (‘Wentworth’).
[58]Wentworth [1980] AC 74, 105. In Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586, 592, Lord Nicholls of Birkenhead reformulated the third condition to read: the court must be abundantly sure of the substance of the provision Parliament would have enacted, although not necessarily the precise words Parliament would have used, had the error been noticed.

In Director of Public Prosecutions v Leys,[59] this Court endorsed Lord Diplock’s three conditions and added another distinct requirement, namely, that the words of the statute as modified must be reasonably open having regard to the statutory scheme.[60] In order to meet this requirement, ‘the construction of the provision as modified [must not be] unnatural, incongruous or unreasonable and [must be] consistent with the statutory scheme’.[61]
[59](2012) 296 ALR 96 (‘Leys’).
[60]Leys (2012) 296 ALR 96, 127 [97].
[61]Leys (2012) 296 ALR 96, 131 [110].

In Taylor v Owners – Strata Plan No 11564,[62] the majority[63] referred to the analysis in Leys with approval. However, the majority held that it was unnecessary to decide whether Lord Diplock’s three conditions were always, or even usually, necessary and sufficient conditions for reading words into a statute. The majority also held that it may not be sufficient that the modified construction was reasonably open having regard to the statutory scheme.[64] This was said to be because the task remained the construction of the words the legislature had enacted and the meaning propounded must be consistent with the language in fact used by the legislature.[65]
[62](2014) 306 ALR 547 (‘Taylor’).
[63]French CJ, Crennan and Bell JJ.
[64]Taylor (2014) 306 ALR 547, 557–8 [39].
[65]Taylor (2014) 306 ALR 547, 557 [39].

The majority in Taylor stated that the answer to the question of when a court would be justified in reading a statutory provision as though it contained additional words involved a judgment of matters of degree. That judgment would be readily answered in favour of the addition or omission of words in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. However, the judgment would be answered against a construction that filled gaps disclosed in the statute or made an insertion which was ‘too big, or too much at variance with the language in fact used by the legislature’.[66] The majority adopted the reasoning of McHugh J in Newcastle City Council v GIO General Ltd,[67] stating that ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances’.[68] Finally, they observed that a purposive interpretation that required too great a departure from the statutory text in order to achieve what the court was satisfied was the underlying intention of Parliament may be too far-reaching and may violate the separation of powers in the Constitution.[69]
[66]Taylor (2014) 306 ALR 547, 557 [38] (citations omitted). The principles set out in this paragraph are adapted from Di Paolo [2015] VSCA 230, [44].
[67](1997) 191 CLR 85 (‘Newcastle’).
[68]Taylor (2014) 306 ALR 547, 558 [39], quoting Newcastle (1997) 191 CLR 85, 113.
[69]Taylor (2014) 306 ALR 547, 558 [40].

This Court has endorsed the proposition that ‘it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’[70] However, this Court has further stated that, where Parliament has chosen words which, if construed literally, would result in legislation missing the target at which it is aimed, and the words are reasonably open to another construction that will carry Parliament’s intention into effect, the court may construe the words in that fashion even if it involves the addition of words to those which have been used.[71]
[70]Commissioner of State Revenue v Australian Football League (2006) 14 VR 35, 40 [17], quoting Thompson v Goold & Co [1910] AC 409, 420.
[71]Byrne v Marles (2008) 19 VR 612, 628 [54].

Another related question is the extent to which a court may adopt a construction so as to avoid an absurd, unreasonable or anomalous consequence.[72] In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[73] Mason and Wilson JJ stated that, when a judge labels the operation of a statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he or she assigns a ground for concluding that Parliament could not have intended that statute to operate in a particular way, and that an alternative interpretation must be preferred.[74] They also stated that a court may depart from a literal interpretation of a provision where the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.[75]
[72]The principles set out at [70]–[72] below are adapted from Di Paolo [2015] VSCA 230, [45]–[46], [48].
[73](1981) 147 CLR 297 (‘Cooper’).
[74]Cooper (1981) 147 CLR 297, 321.
[75]Cooper (1981) 147 CLR 297, 321.

Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd,[76] the High Court stated that inconvenience or improbability of result may assist the court in preferring an alternative construction of a statute to its literal construction where the former is reasonably open and more closely conforms with the legislative intent.[77]
[76](1997) 187 CLR 384.
[77]CIC (1997) 187 CLR 384, 408.

However, especially when different views can be held about whether a particular consequence is anomalous on the one hand or acceptable or understandable on the other, the court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of Parliament.[78] Similarly, any anomaly must be a very serious one before a court will be justified in using it as a reason for rejecting what otherwise seems to be the correct construction of a statute. If courts act otherwise, they risk taking over the function of making policy choices which properly belongs to the legislature.[79] Caution should therefore be exercised before relying on anomalous results to reject what otherwise appears to be the correct construction of the statute.[80]
[78]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 83 FCR 511, 519. The decision of the Full Court of the Federal Court of Australia was overturned by the High Court on different grounds. See Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
[79]Ganter v Whalland (2001) 54 NSWLR 122, 131 [36], quoted in Turner v George Weston Foods Ltd [2007] NSWCA 67, [59].
[80]WBM v Chief Commissioner of Police (2012) 230 A Crim R 322, 333 [41].

A further issue that arises is whether a court is justified in regarding a statutory provision as meaningless because of uncertainty arising as to its proper construction.

In Scott v Moses,[81] the Court of Criminal Appeal stated that ‘[i]t is not within the competence of this Court to hold that the section in an Act of Parliament is void for uncertainty’ and that ‘[w]hatever the difficulties of construction may be, the Court is bound to give some meaning to the section, and upon no proper principles could a Court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used’.[82] This proposition has been endorsed at an appellate level on numerous occasions.[83] In R v Smith,[84] Street CJ adopted a less absolute position, leaving open the question of whether it was permissible for a court to regard a statute as meaningless. Nonetheless, he stated that, although he had on many occasions found himself confronted with an ‘extraordinarily difficult task’ in finding a statute’s meaning, he had not encountered a statutory provision that could properly be described as meaningless due to uncertainty as to that meaning.[85]
[81](1958) 75 WN (NSW) 101 (‘Scott’).
[82]Scott (1958) 75 WN (NSW) 101, 102.
[83]Kennedy v Lowe; Ex parte Lowe [1985] 1 Qd R 48, 49; Whittaker v Comcare (1998) 86 FCR 532; 543; Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273, 281.
[84][1974] 2 NSWLR 586 (‘Smith’).
[85]Smith [1974] 2 NSWLR 586, 589.

A final question that arises is whether a statutory provision may be construed as operating on historical facts.

In some cases, a statutory provision may expressly confine itself to a particular date. For example, in Giannarelli v Wraith[86] the High Court considered the operation of s 10(2) of the Legal Profession Practice Act 1958, which provided that ‘[e]very barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty-third day of November One thousand eight hundred and ninety-one liable to his client for negligence as a solicitor’. Wilson J, with whom Mason CJ agreed, and Toohey J, with whom Deane and Gaudron JJ agreed, described this provision as a ‘fixed time’ provision.[87]
[86](1988) 165 CLR 543 (‘Giannarelli’).
[87]Giannarelli (1988) 165 CLR 543, 561, 567, 587, 609, 610.

When a statute is construed as a whole and in context, it may also appear that a reference to particular entities should be confined to those entities existing at a particular time. For example, in Lord Colchester v Kewney,[88] the Court of Exchequer construed a statutory provision that granted a land tax exemption in respect of ‘any hospital’ as only applying to hospitals existing at the time of the relevant statute’s enactment.[89] Similarly, in Forsyth v Deputy Commissioner of Taxation,[90] a majority[91] of the High Court construed s 44(1)(a) of the District Court Act 1973 (NSW), which conferred jurisdiction on the New South Wales District Court in respect of ‘any action of a kind … which, if brought in the Supreme Court would be assigned to the Common Law Division of that Court’, as referring to actions which would had been assigned to the Common Law Division of the Supreme Court as at the time that that provision was enacted.[92]
[88](1866) LR 1 Ex 368 (‘Kewney’).
[89]Kewney (1866) LR 1 Ex 368, 380.
[90](2007) 231 CLR 531 (‘Forsyth’).
[91]Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.
[92]Forsyth (2007) 231 CLR 531, 549 [45].

In Australian Education Union v General Manager of Fair Work Australia[93] the High Court considered whether s 26A of the Fair Work (Registered Organisations) Act 2009 (Cth), which applied to any association ‘purportedly registered as an organisation … before the commencement of [that] section’, applied to the Australian Principals Federation (‘APF’). Relevantly, in 2006, the Australian Industrial Relations Commission granted the APF’s application for registration and the APF was placed on the relevant register. In 2008, however, the Full Court of the Federal Court made an order quashing the APF’s registration on the basis of a deficiency in the APF’s rules.
[93](2012) 246 CLR 117 (‘AEU’).

French CJ, Crennan and Kiefel JJ held that the registration of the APF was, from the outset, a ‘purported registration’, notwithstanding that the act of registration was devoid of legal effect by operation of the Full Court’s order.[94] They stated that, although the legal consequences of the act of registration had been quashed by the order of the Full Court, the act itself remained a historical fact that engaged s 26A.[95] Similarly, Heydon J held that s 26A referred to the steps taken to register an association as a matter of historical fact, as opposed to the legal consequences of that registration. As the effect of the court order was only to deprive those steps of consequences in law as opposed to treating them as if they had never happened as a matter of historical fact, the APF had been ‘purportedly registered as an organisation’ for the purposes of s 26A.[96]
[94]AEU (2012) 246 CLR 117, 137 [38].
[95]AEU (2012) 246 CLR 117, 140 [46].
[96]AEU (2012) 246 CLR 117, 160–1 [113].

It follows from AEU that legislation can operate upon historical facts, notwithstanding that those facts have no other ongoing legal consequences.

Parties’ submissions

The applicant submitted that, leaving aside possible alterations by Order in Council, the definition of ‘greater Melbourne’ or, alternatively, the Third Schedule was intended to be a ‘fixed time’ provision.[97] Further, so it was said, the boundaries of the municipal districts and of the Shires referred to in paras (a), (b) and (c) of the Third Schedule were knowable facts that could be ascertained notwithstanding that the legal entities associated with those municipal districts had ceased to exist.
[97]See [86] below.

In support of this contention, the applicant drew attention to the following textual indicia and contextual factors relevant to the construction of the LTA and the MMBW Act:

(a) the fact that, at the time of the enactment of the LTA, it was notorious that all the Cities and Shires referred to in the Third Schedule, other than the City of Melbourne, had ceased to exist but, notwithstanding this, the LTA retained a definition of ‘greater Melbourne’ that adopted the boundaries of those municipalities;

(b) the fact that the draftsperson of the WGA had carefully identified the version of the MMBW Act — and thus the version of the Third Schedule —which was to be used in the definition of ‘greater Melbourne’, and had therefore selected a historical fact to be part of the criteria for exemption;

(c) the fact that, in drafting the LTA in 2005 and the WGA in 2006, Parliament could have, but did not, refer to the then existing municipal boundaries of the then existing Councils under the LGA;

(d) the fact that the extrinsic materials to the 2014 Act, which are set out at [33] and [34] above, stated that the definition of ‘greater Melbourne’ at that time was difficult to apply because it referred to administrative boundaries that were ‘no longer in use’, such as ‘old’ council boundaries; [98]
[98]The applicant submitted that there was debate as to the circumstances in which an amending Act may be used to construe the meaning of the original Act. In support of this proposition, the applicant relied on Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651, 669 [52], 670 [54]. He accepted that it was not permissible to construe an unambiguous phrase in an earlier Act by an erroneous assumption of its effect contained in a later Act which did not purport to amend or alter the earlier Act: see Ormond Investment Co Ltd v Betts [1928] AC 143, 154–6. According to the applicant, this was not the case in this application.

(e) the notable difference between the definition of ‘urban zone’ and ‘greater Melbourne’ in s 64(1) of the LTA. Whereas ‘urban zone’ was defined as a zone under a planning scheme ‘in force’ under the Planning and Environment Act 1987, which was said to demonstrate the ambulatory nature of that definition, such language was absent from the definition of ‘greater Melbourne’;

(f) the fact that paras (b) and (c) of the Third Schedule prescribed very specific portions of identified Shires based on identified starting points on a municipal boundary. According to the applicant this could only sensibly be done if the municipal boundaries were and remained fixed in time;

(g) the fact that, by s 201(2) of the MMBW Act, the Governor in Council was empowered to declare land as added to, or excised from, the ‘metropolitan area’, which was said to be more consistent with the ‘metropolitan area’ otherwise being fixed in time; and

(h) the notable difference between the language of s 201(2) of the MMBW Act and the Third Schedule. Whereas s 201(2) included the phrases ‘from time to time’ and ‘for the time being’, which confirmed the ambulatory nature of the power conferred under that section, such language was conspicuously absent from the Third Schedule.

The applicant further contended that, in construing the definition of ‘greater Melbourne’, this Court should start with the assumption that Parliament ‘knew what it was doing’ when it enacted the LTA in 2005 and the WGA in 2006. According to the applicant, in circumstances where Parliament had expressly included references to Cities and Shires that it knew no longer existed, references to those entities must necessarily be construed as implicitly referring to the entity as it was immediately before it ceased to exist.

Relying on the principle set out at [80] above, the applicant submitted that the invocation of an historical definition or event was not an uncommon legislative drafting technique. In support of this proposition, he drew the Court’s attention to Giannarelli[99] and Forsyth.[100] The applicant also referred to s 15(1) of the Supreme Court Act 1958, which relevantly provided:

The [Supreme] Court shall have cognisance of all pleas civil criminal or mixed, and (subject to any enactment now in force to the contrary) shall have jurisdiction in all cases whatsoever as fully and amply to all intents and purposes in Victoria and its dependencies as the Courts of Queen's Bench Common Pleas and Exchequer at Westminster or any of them had by the common law in England at or previously to the commencement of the Act No 502 ...[101]

[99]See [76] above.

[100]See [77] above.

[101]Citations omitted.

The applicant observed that, although the various English courts referred to in s 15(1) of the Supreme Court Act 1958 were no longer in existence at the time of its enactment, it was plain that the Supreme Court was seized of all the jurisdiction of those courts as at the specified date.

Initially, the applicant advanced three alternative constructions of the relevant provisions of the LTA and the MMBW Act which had the effect of either fixing the boundary of ‘greater Melbourne’ or the bounds of the ‘municipal districts’ referred to in the Third Schedule and, in turn, giving statutory references to the municipal districts of the former Cities and Shires meaning and effect. Each of those alternative constructions, so it was said, provided certainty as to the time for determining which version of a particular boundary should be applied. Those constructions are as follows:

(a) the boundary of ‘greater Melbourne’ was fixed by reference to the last or latest manifestation of the boundary of each municipality listed in the Third Schedule as at the last day on which s 201 of the MMBW Act was in force (30 June 2007). For municipalities that had ceased to exist at that time, the relevant boundary was that applicable immediately before the cessation of that City or Shire; or

(b) the bounds of the ‘municipal districts’ of the Cities and Shires were fixed as at 1987, when the Third Schedule was first incorporated as part of the definition of ‘metropolitan area’ in the 1958 LTA;[102] or

(c) the bounds of the ‘municipal districts’ of the Cities and Shires were fixed as at 1985, when the Third Schedule was first enacted in the MMBW Act.[103]

[102]See [26] above.

[103]See [25] above.

During the hearing of the application, however, the applicant adopted the first alternative construction as its principal and preferred construction (‘preferred construction’), although he did not formally abandon the other two constructions. The preferred construction was said to be supported by the fact that the definition of ‘greater Melbourne’, as amended by the WGA, incorporated the definition of metropolitan area under s 201 of the MMBW Act ‘as in force immediately before its repeal’ — that is, as at 30 June 2007. The applicant also contended that the preferred construction was supported by the ‘history, functions and purposes’ of the LTA. On the basis of the preferred construction, the applicant submitted that, in the case of the municipal district of Whittlesea, the area falling within the boundaries of the Shire of Whittlesea on the day before it ceased to exist on 15 April 1988 formed part of the ‘metropolitan area’ and thus of ‘greater Melbourne’.

The applicant contended that the judge erred in concluding that the references to the Cities and Shires in para (a) of the Third Schedule — except for the City of Melbourne — had no meaning and were incapable of being applied as legislation. The applicant submitted that the efficacy of the definitions of ‘metropolitan area’ and ‘greater Melbourne’ did not depend on the continued existence as at the liability date (31 December 2012) of the Cites and Shires identified in the Third Schedule. According to the applicant, the definitions were efficacious because they required boundaries which delineated ‘greater Melbourne’ to be fixed by reference to the boundaries of former municipal districts. The references to former Cities and Shires were said to be capable of being deployed as part of the legislative criteria and to provide certainty as to which time was engaged.

The purpose of s 65(1) of the LTA and the legislative history of the LTA and the MMBW Act were said to support the applicant’s preferred construction. The purpose of the section was said to be to exempt from land tax farming land but not land used for that purpose within the metropolitan area. According to the applicant, his preferred construction gives effect to this purpose whereas the judge’s construction thwarts it. Likewise, so it was said, the applicant’s preferred construction is consistent with the legislative history of s 65(1) whereas the judge’s construction was not because at no stage was the ‘metropolitan area’ limited to the City of Melbourne for land tax purposes.

In support of his preferred construction, the applicant relied on the principle that a court should strive to give meaning to every word of a statutory provision[104] and the principle that a court should not lightly conclude that a statutory provision is meaningless.[105]
[104]See [50] above.
[105]See [74] above.

Relying on the principle set out at [71] above, the applicant submitted that the judge’s construction of s 64(1) of the LTA should not be preferred because it gave rise to manifest inconvenience and improbability of result, namely the creation of an exemption from land tax for land used primarily for primary production across Melbourne’s suburbs.

The applicant contended that his preferred construction of ‘greater Melbourne’ did not engage the principles elaborated by Lord Diplock in Wentworth[106] because Parliament had not inadvertently overlooked an eventuality which was required to be dealt with. Instead, according to him, Parliament knew exactly what it was doing and did so in clear and express terms. In those circumstances, so it was said, the Court would arrive at the preferred construction if it properly construed those terms, having regard to the purpose and history of the LTA.
[106]See [65] above.

The respondent disputed the applicant’s preferred construction on the basis that, while para (a) of the definition of ‘greater Melbourne’ was a ‘fixed time’ provision — in the sense that it relied on the definition of ‘metropolitan area’ as at 30 June 2007 — the definition contained no reference (express, implied or otherwise) to any matters of historical fact prior to that date by which the boundaries of the former Cities and Shires could be ascertained. Accordingly, so it was said, the definition did not import any condition that, in circumstances where the Cities or Shires had ceased to exist prior to 30 June 2007, the time for identifying the ‘municipal district’ of the relevant City or Shire was immediately before cessation of the City or Shire. Further, the respondent contended that there was no legislative basis for the alternative ‘fixed time’ constructions advanced by the applicant.

The respondent observed that the definition of ‘greater Melbourne’ was first introduced by the LTA on 1 January 2006, after all the Cities and Shires listed in paras (a), (b) and (c) of the Third Schedule, other than the City of Melbourne, had ceased to exist. Accordingly, so it was said, there was no pre-existing statutory area known as ‘greater Melbourne’ to give meaning to the new definition. In these circumstances, the respondent argued, this Court was required to construe the definition by reference to its language and statutory context, that is, by taking the words that Parliament used and applying them. According to the respondent, it would be erroneous to import into the definition the assumptions of an urban geographer in order to determine its meaning.

The respondent submitted that if the legislature had so intended, it could have inserted a transitional provision into the MMBW Act to give the terms of the Third Schedule effect notwithstanding the cessation of the relevant Cities and Shires. It followed, so it was said, that in the absence of such a transitional provision, no statutory operation or effect could be given to the references to the former Cities and Shires. According to the respondent, this Court should give little weight to the applicant’s contention that the draftsperson of the WGA had ‘carefully identified’ the version of the MMBW Act which was to be used in the definition of ‘greater Melbourne’ because it was more likely that the draftsperson had simply adopted the definition of ‘metropolitan area’ in the to-be-repealed MMBW Act without giving any consideration to the definition itself.

According to the respondent, the judge’s construction of ‘greater Melbourne’ did not render that provision meaningless but, rather, confined it to:

(a) the municipal district of the City of Melbourne;

(b) all the lands which were vested in, or purchased or acquired by, or under the management of the Melbourne Port Corporation as at 30 June 2007; and

(c) the Docklands area as at 30 June 2007.

The respondent submitted that the judge’s construction of the definition of ‘greater Melbourne’ was based on the ordinary or literal meaning of the words used by Parliament. On the other hand, so it was said, the applicant’s preferred construction was based on assumptions about the purpose of the legislation rather than the language used by Parliament. That construction was said not to be available because it did not satisfy the requirement that it must be reasonably open and more closely conform to the legislative intent of the statute.[107]
[107]The respondent relied on CIC (1997) 187 CLR 384, 408; Deputy Federal Commissioner v Sheehan (1986) 18 ATR 194, 205; Lloyd's (2012) 248 CLR 378, 390 [25]–[26]. See [62] and [63] above.

The respondent observed that, prior to the repeal of the MMBW Act on 1 July 2007, the Governor in Council was empowered under s 201(2) of that Act to declare land as added to, or excised from, the ‘metropolitan area’. Similarly, from 1 July 2007, the Governor in Council was given wider power under s 64(3) of the LTA to declare an area to be the ‘metropolitan area’ for the purposes of the definition of ‘greater Melbourne’. According to the respondent, Parliament provided these mechanisms to empower the Governor in Council to declare that any land, including land within previously abolished Cities and Shires, comprised the ‘metropolitan area’ and, thus, the definition of ‘greater Melbourne’.

Contrary to the submissions of the applicant, the respondent contended that the applicant’s preferred construction would require this Court to read into the definition of ‘greater Melbourne’ words which were not there. In particular, in the case of a reference to a municipal district that had ceased to exist, the additional words were ‘former’ before ‘municipal district’ and ‘as it existed at [a particular date]’ after the name of the municipal district. Accordingly, the respondent contended that, if this Court were to adopt the applicant’s preferred construction, that construction must satisfy the three conditions for reading words into a statute prescribed by Lord Diplock in Wentworth.[108] According to the respondent, the applicant failed to satisfy each of those conditions for the following reasons:
[108]See [65] above.

(a) the first condition was not satisfied because, although it was clear that the purpose of s 65(1) was to provide a land tax exemption for land outside ‘greater Melbourne’, this said nothing about the meaning of that term;

(b) the second condition was not satisfied because, having regard to the fact that the Governor in Council was empowered under the MMBW Act and the LTA to declare an area as a ‘metropolitan area’, it could not be said that, in defining ‘greater Melbourne’, Parliament had overlooked an eventuality with which this Court must now deal; and

(c) the third condition was not satisfied because it was impossible to identify the precise date that the legislature would have nominated for the purposes of assessing the boundaries of each of the municipal districts of the various Cities and Shires set out in para (a) of the Third Schedule.

During oral argument, in the context of the third condition, the respondent argued that a difficulty with the applicant’s preferred construction was that it required this Court to fix multiple dates for the purposes of assessing the boundaries of the relevant municipal districts. However, the respondent ultimately conceded that, so long as a criterion or formula by which the relevant dates for assessing the boundaries of each of the municipal districts could be identified in the legislation, this would provide sufficient certainty to the definition of ‘greater Melbourne’ even if the dates varied as between different municipal districts.

Decision

We will commence our analysis by focusing on the language of ss 64(1) and 65(1) of the LTA.

It is clear from s 65(1) that a person seeking to claim exemption from land tax under that provision was required to satisfy two requirements: first, the relevant land must be outside ‘greater Melbourne’; and, secondly, that land must be used primarily for primary production. The efficacy of the first requirement depended on the definition of the phrase ‘greater Melbourne’ being capable of providing a clear criterion by which a determination could be made as to whether any land for which the exemption was claimed fell inside or outside the area designated as ‘greater Melbourne’.

The definition of ‘greater Melbourne’ in s 64(1) provided two avenues by which the boundaries of ‘greater Melbourne’ could be ascertained. The first avenue was the definition of ‘metropolitan area’ in s 201 of the MMBW Act as in force immediately prior to its repeal on 1 July 2007, which in turn relied on the areas described in the Third Schedule. The second avenue was an Order in Council. The first avenue was a ‘fixed time’ mechanism which relied on boundaries existing at a specific point in time, and the second avenue was an ambulatory mechanism which could be used to alter boundaries from time to time. As no relevant Order in Council was ever made, we will focus on the definition of ‘metropolitan area’ in s 201 of the MMBW Act and the Third Schedule to which it refers.

What is striking about paras (a), (b) and (c) of the Third Schedule is that, apart from the City of Melbourne, the Cities and Shires that were listed there no longer exist as municipalities and the vast majority have not had that status since December 1994. This is a matter of public record of considerable notoriety. It is inconceivable that Parliament would not have been aware of this fact at all relevant times since 1994. Accordingly, it is safe to assume that, when Parliament enacted the LTA in 2005, it was aware that the definition of ‘greater Melbourne’ depended principally on areas which were described in paras (a), (b) and (c) of the Third Schedule by reference to Cities and Shires, all but one of which had long since been abolished.

In order to understand the scope of the definition of ‘greater Melbourne’ based on its reliance on the Third Schedule as in force on 30 June 2007, it is necessary to consider it in the context of s 65(1) of the LTA rather than in isolation.[109] Read in that context, the wording was relevantly as follows:

Land outside [the Metropolitan Area [which] consists of the following areas …. The municipal districts of the Cities of … and of the Shires of …] that is used primarily for primary production is exempt land.

[109]Kelly (2004) 218 CLR 216, 253 [103]. See [53] above.

What is immediately obvious about the definition of ‘greater Melbourne’ when it is grafted on to s 65(1) of the LTA in the above manner is the centrality of the references firstly to physical areas of land and, secondly, to the legal entities (Cities and Shires) associated with the municipal districts listed there.

As set out at [44] above, the judge concluded that the physical areas of land in the Third Schedule were identified or ‘tagged’ by reference to the legal entities associated with the named municipal districts, such that the cessation of a legal entity meant that no continuing meaning or effect could be given to the physical areas of land within the municipal district with which the entity was associated. The principles discussed at [75] to [80] above clearly establish that a statutory provision can operate by reference to a historical matter which has otherwise ceased to have any legal effect. As discussed below, there was nothing in the wording of s 65(1) of the LTA, the definition of ‘greater Melbourne’ or the provisions of the MMBW Act upon which the definition relied that supported the judge’s conclusion that the physical areas of land referred to in the Third Schedule depended for their meaning and effect on the continued existence of the legal entities associated with the named municipal districts. In our opinion, both the physical areas of land and the legal entities were independently capable of supplying a criterion for ascertaining what constituted the metropolitan area (and ‘greater Melbourne’) and thus the scope of the primary production land exemption.

In these circumstances, two alternative constructions of paras (a), (b) and (c) of the Third Schedule are available. The first construction, which the respondent urged and which the judge accepted, focuses on the legal entities listed in those paragraphs. According to that construction, those paragraphs applied to the areas covered by the named municipalities which existed as legal entities as at 30 June 2007. On the basis of the respondent’s preferred construction, if a municipality ceased to exist as a legal entity prior to 1 July 2007, then the area that was within the boundaries of that legal entity at the time that it ceased to exist was not within ‘greater Melbourne’ as at the liability date on 31 December 2012. As only the City of Melbourne was in existence as at 30 June 2007, the effect of this construction is that only the area within the boundaries of the City of Melbourne as at that date fell within ‘greater Melbourne’ by virtue of paras (a), (b) and (c) of the Third Schedule.

The second construction, which is the applicant’s preferred construction, focuses on the physical areas referred to in paras (a), (b) and (c) of the Third Schedule. According to that construction, paras (a), (b) and (c) applied to the areas covered by the legal entities of the named municipalities insofar as they existed as at 30 June 2007 and, insofar as an entity ceased to exist prior to 1 July 2007, as at the day before it ceased to exist as a legal entity. The effect of the applicant’s preferred construction is that it extended ‘greater Melbourne’ beyond the boundaries of the City of Melbourne and the land referred to in paras (d) and (e) of the Third Schedule so that it included, for example, the area within the boundaries of the Shire of Whittlesea as at 14 April 1988.

There was no express statement in ss 64 or 65 of the LTA or in the provisions of the MMBW Act upon which the definition of ‘greater Melbourne’ relied that favours either the applicant’s or the respondent’s preferred construction. However, the wording and purpose of these provisions when read in their context — including their history and the facts that were on the public record at the time the LTA was enacted[110] — support the applicant’s preferred construction.
[110]See [52] above.

The applicant’s preferred construction is consistent with a key principle of statutory interpretation, namely, that the court must strive to give meaning and effect to every word of a statute.[111] That construction does not overlook any words in the Third Schedule whereas the respondent’s preferred construction ignores the vast majority of those words. This is borne out by a comparison of the Third Schedule, which is set out at [6] above, and the operative words of that schedule as construed by the trial judge, which are set out at [17] above.
[111]See [50] above.

The applicant’s preferred construction is also consistent with the ‘fixed time’ nature of the definition of ‘greater Melbourne’. The question of which historical point in time applies to enable the areas to which the Third Schedule referred to be ascertained is answered by the words ‘as in force immediately before its repeal’ that were inserted on 1 July 2007 in the definition of ‘greater Melbourne’ in s 64(1) of the LTA after the words ‘section 201 of the [MMBW Act]’. Thus, the time at which the areas of land in the Third Schedule are to be ascertained is 30 June 2007. The respondent correctly conceded that if a single criterion or formula could be distilled from the statutory language and the context for assessing, as at 30 June 2007, which areas of land formed part of ‘greater Melbourne’, it was of no consequence that the criterion or formula produced different historical dates in respect of different areas of land.

In our opinion, when regard is had to the matters that we have already discussed and the matters that follow, the only sensible construction that can be given to the language of para (a) of the Third Schedule is as follows:

(a) where, as at 30 June 2007, a legal entity for a municipal district listed in para (a) remained extant, the area within the boundaries of that municipal district as at that date fell within ‘greater Melbourne’; and

(b) where, as at 30 June 2007, a legal entity for a municipal district listed in para (a) was no longer in existence, the area within the boundaries of that municipal district on the day before the legal entity ceased to exist, fell within ‘greater Melbourne’.

In our opinion, when one focuses on the land described in paras (a), (b) and (c) of the Third Schedule, it does not strain the language of either ss 64(1) and 65(1) of the LTA or s 201 of the MMBW Act and the Third Schedule to interpret the phrase ‘greater Melbourne’, insofar as it applies to that land, as not being coterminous or coextensive with ‘City of Melbourne’. Indeed, the opposite is true in that if Parliament intended that, as at 1 January 2006 (when the LTA commenced), all land outside the City of Melbourne and the areas described in paras (d) and (e) of the Third Schedule was to be designated ‘[l]and outside greater Melbourne’, it could have easily used the phrase ‘[t]he municipal district of the City of Melbourne’ for paras (a), (b) and (c) rather than continuing to rely on a lengthy list of Cities and Shires all but one of which were redundant.

As two competing constructions of the defined term ‘greater Melbourne’ are available, s 35(a) of the Interpretation of Legislation Act 1984 requires this Court to prefer the construction that would promote the purpose or object of s 65(1) of the LTA over a construction which would not do so. In our opinion, the applicant’s preferred construction promotes the purpose or object of s 65(1) whereas the respondent’s preferred construction does not. That purpose or object was to confer an exemption from land tax for land outside the main urban areas of Melbourne that was used primarily for primary production. The applicant’s preferred construction confines the geographical scope of the s 65(1) exemption to predominantly rural areas — as has been the case since 24 December 1973[112] — whereas the respondent’s preferred construction would extend the exemption to Melbourne’s suburbs where the land satisfies the primary production requirement.
[112]See [21]–[22] above.

There is nothing in the language of the LTA or its legislative history that provides any support for the proposition that Parliament intended the primary production land exemption in s 65(1) of the LTA to be capable of applying to land in the whole of Victoria other than land within the boundaries of the City of Melbourne and the land referred to in paras (d) and (e) of the Third Schedule. On the contrary, the very phrases ‘greater Melbourne’ and ‘metropolitan area’ indicate that the exemption is directed at land outside Melbourne’s suburban area. Further, since the introduction of a geographical limitation to the exemption on 24 December 1973, there has been no change in the language of the LTA and its predecessors or any provisions of other legislation upon which the exemption relied which indicates an intention by Parliament to dramatically broaden the geographical reach of the exemption.

We now turn to the facts of which Parliament was aware when it enacted the LTA in 2005. The first fact that was on the public record has been discussed already at [104] above. The second fact was that the Governor in Council had not exercised its powers under s 201(2) of the MMBW Act to alter any of the areas falling within the Third Schedule and thus forming part of the ‘metropolitan area’ in s 201(1) of the Act. Despite knowing these facts, when Parliament enacted the LTA in 2005, it assigned a meaning to ‘greater Melbourne’ by reference to the Third Schedule. This could only have been on the basis that the areas within the boundaries of the Cities and Shires specified in paras (a), (b) and (c) of that schedule had continuing relevance to the definition of ‘metropolitan area’, and, in turn, the definition of ‘greater Melbourne’, notwithstanding the cessation of the legal entities previously associated with those municipalities.

The applicant’s preferred construction, which we have adopted, does not involve the insertion into the LTA or the MMBW Act of words that are not there or a failure to give meaning or effect to any words that are there. Rather, that construction is based on an interpretation of the language that Parliament has used to express its legislative intention about the geographical limitation of the exemption in s 65(1) of the LTA, appropriately assisted by the statutory context which we have already described. It follows that the conclusion that we have reached does not engage the principles summarised at [64] to [69] above.

On any approach, the task for the Court would remain the construction of the words the legislature has enacted and to ensure that the meaning propounded is consistent with the language in fact used by the legislature.[113] The construction we have adopted achieves that consistency. The respondent’s preferred interpretation misses the target at which the legislation is aimed whereas the construction we have adopted is not only reasonably open on the wording used by Parliament, it also carries Parliament’s intention into effect.[114]
[113]See [67] above.
[114]See [69] above.

While the respondent’s preferred construction does not have the effect of denuding the definition of ‘greater Melbourne’ of any meaning — because the definition of ‘metropolitan area’ in s 201(1) of the MMBW Act can apply to the City of Melbourne and the land referred to in paras (d) and (e) of the Third Schedule — that interpretation is capable of leading to anomalous consequences. That is so because land which satisfied the primary production requirement would attract the exemption in s 65(1) of the LTA notwithstanding that it was located in a Melbourne suburb. It is highly improbable that Parliament intended this consequence. In any event, there is no indication anywhere in the LTA or its predecessors that such a consequence was intended at any time since the introduction of the geographical limitation on 24 December 1973.

We reject the respondent’s submission that its preferred construction is incapable of leading to anomalous consequences on the basis that, by enacting s 201(2) of the MMBW Act, Parliament established a mechanism by which particular areas could be included or excluded from the definition of ‘metropolitan area’ in s 201(1) of the MMBW Act through Orders in Council. We do so because the submission requires acceptance of the proposition that, when Parliament enacted the LTA in 2005, it intended that paras (a), (b) and (c) of the Third Schedule comprise only the area within the City of Melbourne, with that area being capable of expansion by an Order in Council. As discussed at [114] above, if that had been Parliament’s intention, it would have used different language for paras (a), (b) and (c) in the Third Schedule. If the respondent’s preferred construction were correct, there was no need to retain paras (b) and (c) and the vast majority of para (a), as no purpose was served by them.

Insofar as the respondent’s preferred construction relies on the proposition that in 2005 Parliament simply overlooked the fact that nearly all of the Cities and Shires in the Third Schedule had ceased to exist over 20 years earlier, it attributes to Parliament either incompetence or institutional amnesia. This Court must strive to avoid such improbable conclusions if at all possible.[115] In the present case, the Court is able to do so because the applicant’s preferred construction is consonant with the language of the relevant statutory provisions and their context, including their legislative history. On the other hand, there is no support in the language or context of the relevant statutory provisions for the proposition that Parliament intended to dramatically extend the geographical area that fell within the scope of the primary production land exemption which, since 24 December 1973, has not applied to land within Melbourne’s suburbs.
[115]See, eg, Spillers Ltd v Cardiff Assessment Committee [1931] 2 KB 21, 43; QBE Workers Compensation (Vic) Ltd v Freisleben [1999] VSCA 207, [19]; Francis Bennion, Bennion on Statutory Interpretation: A Code (LexisNexis, 5^th ed, 2008) 413.

We also reject the respondent’s submission that the applicant’s preferred construction is not open to this Court because it is too uncertain. In our opinion, that interpretation is not uncertain because the criterion or formula upon which it relies — the area of land falling within a municipal district as at 30 June 2007 or, if the legal entity for a district ceased to exist prior to 1 July 2007, the day before it ceased to exist — is capable of producing a precise delineation of that land. This is because, in the case of legal entities that were not extant as at 30 June 2007, the date upon which each of the legal entities referred to in paras (a), (b) and (c) of the Third Schedule ceased to exist is readily ascertainable, as are the boundaries of the municipal districts associated with those entities on the day before the entities ceased to exist.

It is true that the applicant’s submissions did not rely only on the ‘historical event’ referred to at [123] above to give meaning to para (a) of the Third Schedule. In the alternative, the applicant also relied on the two historical events referred to at [86(b)] and [86(c)] above. In our opinion, there is no support for the above alternatives in either the language of the relevant statutory provisions or their context or purpose. We note that the applicant relied principally on his preferred construction and that, although he did not formally abandon them, he did not seriously press the above alternatives. The fact that the applicant’s submissions acknowledged that his preferred construction was not the only interpretation that was open does not create any uncertainty about the practical application of that construction or cast any doubt about its correctness.

It follows from the above discussion that the fact that an area was within the City of Whittlesea between 15 April 1988 and 14 December 1994 and then formed part of the Whittlesea City Council could not affect the content of the definition of ‘metropolitan area’ and thus the definition of ‘greater Melbourne’. This is because the only area that was relevant to those definitions in relation to the Whittlesea municipal district was the area that was within the Shire of Whittlesea on the day before it ceased to exist. Accordingly, changes in the status of the area that was within the Shire of Whittlesea after that day (14 April 1988) were irrelevant to the definition.

In reaching our conclusion about the scope of the definition of ‘greater Melbourne’ we have not relied on the amendments to that definition after 31 December 2012 or their associated extrinsic materials, as they provide no assistance in the construction of the wording of the definition as at that date.

Conclusion

For the above reasons, the application for leave to appeal will be granted, the appeal will be treated as having been instituted and heard at once and the appeal will be allowed.

As stated at [15] above, it is no longer in dispute that the Lockerbie Land within the Mitchell Shire Council is exempt land pursuant to s 65(1) of the LTA. In accordance with our reasons, the Lockerbie Land within the Shire of Whittlesea constitutes land within ‘greater Melbourne’ and is not exempt land pursuant to s 65(1). In these circumstances, we will set aside the Judge’s Order[116] and make an order remitting the Objection to the applicant to be decided again according to law.
[116]See [45] above

[2015] VSCA 269

29 September 2015