Commonwealth v Western Australia

Case [1999] HCA 5

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

THE COMMONWEALTH OF AUSTRALIA   PLAINTIFF

AND

THE STATE OF WESTERN AUSTRALIA                 FIRST DEFENDANT

THE WARDENS OF THE SOUTH WEST
MINERAL FIELD  SECOND DEFENDANT

MINERAL SAND MINING &
DEVELOPMENT PTY LTD   THIRD DEFENDANT

ENMIC PTY LTD  FOURTH DEFENDANT

Commonwealth of Australia v State of Western Australia
(C4-1998) [1999] HCA 5
11 February 1999

ORDER

  1. Demurrer by the State of Western Australia to the Commonwealth's Amended Statement of Claim filed on 22 May 1998 allowed in so far as it relates to that part of the defence practice area outside the land within Melbourne Locations 3988, 3989 and 4004 but otherwise overruled.

  1. Demurrer by the Commonwealth to the State of Western Australia's Counterclaim filed on 25 May 1998 allowed.

  1. Matter stood over to be listed before a single Justice to make further or consequential orders.

  1. Costs of each demurrer, if they be sought, reserved for consideration of a single Justice.

2.

Representation:

H C Burmester, Acting Solicitor-General for the Commonwealth, with M J Hawkins and M A Perry for the plaintiff (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia, with J C Pritchard for the first defendant (instructed by Crown Solicitor for the State of Western Australia)

No appearance for the second, third and fourth defendants

Interveners:

D Graham QC, Solicitor-General for the State of Victoria, with C M Caleo intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia, with J Hughes intervening on behalf of the Attorneys-General for the States of South Australia and New South Wales (instructed by Crown Solicitors for the States of South Australia and New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Commonwealth of Australia v The State of Western Australia & Ors

Statutes – Construction – Whether Mining Act 1978 (WA) applies to land owned or leased by the Commonwealth.

Real property – Grants – Freehold grant – Crown lease – Reservations for mining and minerals – Construction of reservations.

Constitutional law – Effect of s 64 of the Judiciary Act 1903 (Cth) – Application of Mining Act 1978 (WA) to land owned or leased by the Commonwealth.

Constitutional law – Inconsistency of laws – Whether Lands Acquisition Act 1989 (Cth) inconsistent with Mining Act 1978 (WA).

Constitutional law – Inconsistency of laws – Whether Defence Force Regulations (Cth) inconsistent with Mining Act 1978 (WA).

Constitutional law – Acquisition of property – Whether Defence Force Regulations (Cth) effect an "acquisition of property" under s 51 (xxxi) of the Constitution.

Words and phrases – "Crown land" – "operational inconsistency" – "private land".

The Constitution, ss 51(xxxi), 109.
Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1).
Judiciary Act 1903 (Cth), s 64.
Lands Acquisition Act 1955 (Cth),…

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AGLC
Commonwealth v Western Australia [1999] HCA 5
Case
[1999] HCA 5
Decision Date

CaseChat Overview and Summary

The Commonwealth of Australia brought proceedings against the State of Western Australia and others concerning the application of Western Australian mining legislation to land owned or leased by the Commonwealth. The High Court of Australia was required to determine whether the *Mining Act 1978* (WA) applied to such land, and whether certain Commonwealth legislation, specifically the *Lands Acquisition Act 1989* (Cth) and regulations made under the *Defence Act 1903* (Cth), was inconsistent with the Western Australian Act. The case also involved a question regarding the constitutional validity of the Defence Force Regulations under section 51(xxxi) of the Constitution, concerning the acquisition of property.

The central legal issues before the High Court were the construction of reservations for mining and minerals in Crown grants and leases, and the effect of Commonwealth legislation on the application of state mining laws to Commonwealth land. Specifically, the Court had to consider whether section 64 of the *Judiciary Act 1903* (Cth) rendered the *Mining Act 1978* (WA) applicable to Commonwealth land, and whether the *Lands Acquisition Act 1989* (Cth) or the Defence Force Regulations were inconsistent with the *Mining Act 1978* (WA) under section 109 of the Constitution. The Court also examined whether the Defence Force Regulations constituted an acquisition of property for the purposes of section 51(xxxi) of the Constitution.

The High Court allowed the demurrer by the State of Western Australia in part, specifically concerning a perimeter area, but overruled it in relation to freehold and leasehold lands owned or leased by the Commonwealth. The Court also allowed the Commonwealth's demurrer to the State's counterclaim. The reasoning focused on the construction of the *Mining Act 1978* (WA) and its interaction with Commonwealth legislation. The Court determined that the *Mining Act 1978* (WA) did not apply to the freehold and leasehold lands held by the Commonwealth. Furthermore, the Court found that the provisions of the Defence Force Regulations did not effect an acquisition of property.

Consequently, the High Court ordered that the demurrer by the State of Western Australia to the Commonwealth's Amended Statement of Claim be allowed in part and otherwise overruled. The demurrer by the Commonwealth to the State of Western Australia's Counterclaim was allowed. The matter was stood over to be listed before a single Justice for further or consequential orders, with costs of each demurrer reserved for consideration by that Justice.

Orders

Orders of the court

1.

Demurrer by the State of Western Australia to the Commonwealth's Amended Statement of Claim filed on 22 May 1998 allowed in so far as it relates to that part of the defence practice area outside the land within Melbourne Locations 3988, 3989 and 4004 but otherwise overruled.

2.

Demurrer by the Commonwealth to the State of Western Australia's Counterclaim filed on 25 May 1998 allowed.

3.

Matter stood over to be listed before a single Justice to make further or consequential orders.

4.

Costs of each demurrer, if they be sought, reserved for consideration of a single Justice.

2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ GAUDRON J HUGH J GUMMOW J CALLINAN J
It follows that none of the provisions specified in the State's counterclaim effect any acquisition of property. Thus the Commonwealth's demurrer must be upheld.Conclusion So far as concerns the freehold and leasehold lands, the State's demurrer should be overruled; so far as concerns the perimeter area, the State's demurrer should be upheld. The Commonwealth's demurrer to the State's counterclaim should also be upheld. The matter should be stood over to be listed before a single Justice to make orders for the disposition of the action, including a declaration that the Mining Act does not apply to the freehold and leasehold lands, and orders dismissing the State's counterclaim and providing as to costs, if they be sought. Mc Subject to two matters, I agree with the judgment of Hayne J in this matter. The first matter to which I refer is his Honour's discussion of the capacity of the States to bind the Commonwealth. I have expressed my views on that subject in my judgment in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[47] in terms which do not fully accord with the discussion of Hayne J in this case. No doubt it will some day be necessary to determine whether the views expressed by Dawson, Toohey and Gaudron JJ in ReResidential Tenancies[48] to which Hayne J refers have finally settled the question of the States' capacity to bind the Commonwealth. But it is not necessary to do so for the purposes of this case.[47](1997) 190 CLR 410.[48](1997) 190 CLR 410. The second matter is whether the Crown grants created contractual rights in favour of the State. I think that the better view of those instruments is that they created contractual rights in favour of the State. But assuming that is so, those rights cannot bear on whether the Mining Act 1978 (WA), on its proper construction, applies to the land held by the Commonwealth. Nevertheless, I think that the arguable existence of these rights should be noted. If they exist, they may be exercised by the State against the Commonwealth. Their scope will depend not only on the terms of the grants but also on any restrictions which arise from valid Commonwealth legislation. If those contractual rights exist and if Commonwealth legislation has the effect of modifying them, the legislation may effectuate an acquisition of property within the terms of s 51(xxxi) of the Constitution. In that event, the modification will be unlawful unless the legislation provides just terms for the modification. However, these matters do not arise for decision in this case. The Commonwealth has not sought to deny that the State has contractual rights under the Crown grants; nor has the Commonwealth sought to argue that there is any legislation which would impact upon these rights. Furthermore, the State has not attempted to enforce any contractual rights that it may have under the grants. That being so, it is not necessary to determine either the scope of the grants or whether, if the State sought to rely upon them, they would or could be affected by Commonwealth legislation.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON J, HUGH J, GUMMOW J, CALLINAN J

The Regulations made under the Defence Act 1903 (Cth) relevantly provide as follows:"Declaration of defence practice area49(1) The Minister may, by notice published in the Gazette, declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice.(2) The Minister shall not make a declaration under subregulation (1) in respect of private land unless:(a) the consent in writing of the occupier of the land has first been obtained; or(b) it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out on that land a defence operation or practice of a kind specified in the notice without that consent. (3) The Minister shall not, in a notice under subregulation (1), declare an area of sea or air to be a defence practice area unless it is an area of sea or air in which it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out a defence operation or practice of the kind specified in the notice.(4) Where the Minister declares a defence practice area under subregulation (1), a chief of staff may from time to time, by notice published in the Gazette, authorise the installation, for a period not exceeding 2 years that is specified in the notice, of equipment for defence purposes:(a) in an area of sea that is, or is part of, the defence practice area; or(b) on the sea-bed or in the subsoil beneath that area; or(c) in the superjacent waters.Tabling and disapproval of declarations50(1) Where private land is the subject of a declaration made under subregulation 49(1), the Minister shall cause a copy of the declaration to be laid before each House of the Parliament within 15 sitting days of that House after the date on which the declaration was made.(1A) If a copy of a declaration is not laid before each House of the Parliament in accordance with the provisions of subregulation (1), the declaration shall be void and of no effect.(2) If either House of the Parliament, within 15 sitting days of that House after a copy of a declaration referred to in subregulation (1) has been laid before that House, passes a resolution disapproving of the declaration, then:(a) if the declaration has not come into operation – it shall not come into operation; or(b)if the declaration has come into operation – the declaration shall cease to have effect on the day on which the resolution is passed.Authorisation to carry out a defence operation or practice51(1) A chief of staff may, in writing, authorize the carrying out in a defence practice area, at a time specified in the instrument, of a defence operation or practice in which:(a) members of the Defence Force;(b) members of the armed forces of a country other than Australia; or(c) members of the Defence Force and the armed forces of a country other than Australia;are to take part. There are several matters to notice about the Regulations. A Declaration made under them may be made unilaterally. A Declaration may be made as a matter of expediency. Equipment, in the discretion of a chief of staff may be installed for up to two years (and presumably for successive periods of two years after notice published in the Gazette) anywhere within a declared area. A Declaration has, in a relevant respect, the character of subordinate legislation in that it must be laid before Parliament and be subject to disallowance there. It is entirely within the discretion of a Chief of Staff when, and where a defence operation or practice may be carried out. It is impermissible for a person or a person's vehicle, vessel or aircraft to be in an area subject to a Declaration, at the place of, and during the period of a notified defence practice without reasonable excuse. Conditions with respect to the presence of a person in a defence practice area may be imposed by the Chief of Staff or another officer. A breach of a notification or condition constitutes an offence.