EHL Burgess Properties Pty Ltd v Commissioner of State Revenue

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TAXATION LIST

S CI 2014 04670

EHL BURGESS PROPERTIES PTY LTD (ACN 004 267 878)	Appellant
v
COMMISSIONER OF STATE REVENUE	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2015
DATE OF JUDGMENT:	3 July 2015
CASE MAY BE CITED AS:	EHL Burgess Properties Pty Ltd v Commissioner of State Revenue
MEDIUM NEUTRAL CITATION:	[2015] VSC 295

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TAXATION – Land Tax Act 2005, ss 64, 65 – Primary production exemption – Whether land lies outside “greater Melbourne” – Melbourne and Metropolitan Board of Works Act 1958, s 201(1) (definition of “metropolitan area”).

STATUTES – Statutory interpretation – Definition incorporated from another Act of Parliament – Meaning of “any instrument or document” – Interpretation of taxation legislation – Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378.

LOCAL GOVERNMENT – Reorganisation and amalgamation of municipalities in Victoria – Meaning of “the municipal district of the Shire of Whittlesea” – Town and Country Planning Act 1961 – Local Government Act 1989 – Government Gazette, No S 97, 15 December 1994.

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

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Issues.................................................................................................................................................... 3

Grounds of appeal............................................................................................................................. 3

Legislation........................................................................................................................................... 5

The proper construction of “greater Melbourne”........................................................................ 9

History of the exemption under s 65(1) of the 2005 Act................................................. 9
Meaning of “the municipal district of the Shire of Whittlesea”................................. 13
The MMBW legislation..................................................................................................... 19

Application of s 64 of the 2005 Act................................................................................................ 24

Transitional provisions................................................................................................................... 41

Approach to statutory construction............................................................................................... 46

Land in the Mitchell Shire.............................................................................................................. 53

Conclusions....................................................................................................................................... 55

Orders................................................................................................................................................. 57

HIS HONOUR:

Introduction

This is an appeal under s 106 of the Taxation Administration Act 1997 against an assessment to land tax, dated 29 November 2013, made by the Commissioner of State Revenue (“the Commissioner”) under the Land Tax Act 2005 (“the 2005 Act”).

The land the subject of the assessment is identified in the assessment as being:

(a)300 Hume Highway, Beveridge (volume 8709, folio 198; volume 9371, folio 922; volume 5804, folio 612; part of vo1ume 3481, folio 102);
(b)1450 Hume Highway, Kalkallo (part of volume 3481, folio 102);
(c)1440 Hume Highway, Kalkallo (volume 10910, fo1io 445);
(d)O 1440 Hume Highway, Kalkallo (volume 4403, folio 496);
(e)110 Dwyer Street, Kalkallo (volume 9402, folio 314).

The appellant, EHL Burgess Properties Pty Ltd (“Burgess”), contends that, together, the five addresses are one contiguous farm property known as “Lockerbie”. This property currently runs approximately 4,500 first cross ewes producing in excess of 5,700 prime lambs per annum. This is not, however, a matter in issue, and the appeal was conducted on this basis.

In summary, the issue on appeal is whether any, and if so which, of the land identified in the assessment is entitled to a “primary production land” exemption from land tax pursuant to s 65 of the 2005 Act. I will come to the precise terms of s 65 and also s 64 to the 2005 Act in due course but, at this point, it is sufficient to note the principal effect of those provisions is to grant an exemption from land tax where land is used primarily for primary production and the land is outside the “greater Melbourne” area. There is no dispute that each of the areas of land identified in the assessment is used for primary production for the purposes of those provisions. Consequently, the critical issue for resolution turns on identifying whether any of the land lies outside “greater Melbourne” within the meaning of s 64 of the 2005 Act. Burgess does not rely upon any other primary production exemption. The issue, so framed, looks deceptively simple. The problem arises, however, on the basis of the further issues raised by the parties with respect to the definition of “greater Melbourne”.

The land the subject of the assessment is identified, in yellow, in a report filed in the appeal by Burgess (“the Expert Report”).[1] In that report, the boundaries of the municipal districts as they existed before 14 December 1994 are identified in blue. The Commissioner (who has not raised any concern or objection with respect to the Expert Report) contends that the blue line drawn on the map identifying these municipal districts that runs roughly east-west is the boundary of “greater Melbourne”. On this basis, he says that the land which lies to the north of that blue line is outside “greater Melbourne” and thus entitled to the land tax exemption. Moreover, it is common ground that the City of Whittlesea and the Shires of Kilmore and Bulla identified in this map did not exist as municipalities in the year in dispute.
[1]Report of Mr Marco Negri (December 2014) 6.

The Commissioner originally assessed Burgess to land tax on the basis that it was not entitled to a “primary production land” exemption. The Commissioner, in his determination, contended that to qualify for an exemption, the appellant must satisfy s 67 of the 2005 Act and that it did not do so. As will be seen in more detail in the reasons which follow, s 67 of the 2005 Act provides the basis upon which an exemption of primary production land in an urban zone in "greater Melbourne” applies. The Commissioner also contended that the exemption granted by s 65 of the 2005 Act was not available because of the “primacy” of the provisions of s 67 of the 2005 Act over the provisions of s 65 where land that comprised one “parcel” was partly within “greater Melbourne” and partly outside the boundary of the metropolis thus defined.

The Commissioner now accepts that the land at 300 Hume Highway, Beveridge,[2] being all of the land marked in yellow north of the blue line on the map in the Expert Report to which reference has been made, is exempt from land tax pursuant to s 65 of the 2005 Act. The Commissioner says that this is because that land is outside “greater Melbourne” within the meaning of s 64 of the 2005 Act and that the Commissioner now agrees that the availability of the exemption granted by s 65 of the 2005 Act is to be assessed on its own terms.
[2]The Commissioner notes that, for the sake of clarity, there is a mismatch between the land described in the assessment as comprising 300 Hume Highway, Beveridge and the land described in the map produced by Mr Negri as comprising 300 Hume Highway, Beveridge. As noted above at [2], the assessment includes within 300 Hume Highway, part of the land described by Mr Negri as comprising 1450 Hume Highway, being part of volume 3481, folio 102.

Issues

The Commissioner contends that the case presents a single question for determination, which is whether any, and if so which, of the land identified in the assessment is outside “greater Melbourne” within the meaning of s 64 of the 2005 Act. The Commissioner contends that the answer is that the land at 300 Hume Highway, Beveridge is outside “greater Melbourne”, but that the balance of the land identified in the assessment is not outside “greater Melbourne”. Moreover, the Commissioner accepts that so much of the land identified in the assessment that is outside “greater Melbourne” is entitled to the exemption granted by s 65 of the 2005 Act. Burgess, on the other hand, contends that the application of the exemption with respect to the land identified in the assessment is not so limited. It follows that in order to arrive at the answer to this critical question, the relevant legislation must be examined and construed.

Grounds of appeal

The Commissioner assessed Burgess to land tax in the amount of $2,100,375 for the 2013 tax year. By letter dated 29 November 2013, the Commissioner advised Burgess that, as of June 2012, Burgess was no longer entitled to the “primary production” exemption in s 67 of the 2005 Act. The assessment the subject of this appeal was issued on the same day. By letter dated 29 January 2014, Burgess objected to the assessment, contending that it was entitled to an exemption under s 65 of the 2005 Act. On 10 June 2014, the Commissioner disallowed Burgess’ objection, and on 2 July 2014, Burgess requested the Commissioner to treat the objection as an appeal and cause it to be set down for hearing before the Court.

Burgess seeks leave of the Court under s 109 of the Taxation Administration Act 1997 to add the two additional grounds for the reasons set out in its written submissions.[3] It is not, however, necessary to consider the bases of this application in any detail, having regard to the Commissioner’s position, which is that he does not oppose Burgess having leave under the two additional grounds to its grounds of objection. The Commissioner contends that those two grounds of objection concern the first question of construction about the definition of “greater Melbourne”.
[3]Appellant’s Outline of Submissions (2 April 2015) [11]–[17].

The grounds now relied upon by Burgess in this appeal are concisely stated in the summary of its submissions as follows:[4]
[4]Appellant’s Outline of Submissions (2 April 2015) [2]–[10] (emphasis in original).

2Ground 1: All of the land owned by EHL Burgess was exempt under s 65(1) of the … [Act] — as all of the land was located outside of “greater Melbourne”, as defined at the relevant time (31 December 2012). None of the land owned by EHL Burgess was located in any of the municipal districts of any of the Cities or Shires named in the Third Schedule to the Melbourne and Metropolitan Board of Works Act 1958 (as in force immediately before its repeal) (“the MMBW Act”).
3All of the Cities and Shires referred to in the Third Schedule of the MMBW Act (“the Third Schedule”) (except the City of Melbourne) were abolished by Orders in Council made in 1994,[5] as part of the overhaul of local government councils in this State.
[5]See Affidavit of Andrea Peta Towson (19 December 2014) [30]–[39] (“the Towson Affidavit”).
4There is no principle of statutory construction, such as the principle that legislation is ”deemed to be always speaking”, that can be invoked, or applied, to the abolished Cities and Shires in the Third Schedule to give the references to the abolished Cities and Shires any relevant meaning after December 1994.
5Nor was there any amendment made to the MMBW Act in December 1994, or at any other time, to provide that references to the abolished Cities and Shires in the Third Schedule were to be read as references to the new City Councils and Shire Councils, as constituted on and from December 1994.
6Nor was there any amendment to the Land Tax Act 1958 (“the LTA 1958”) in 1994, or at any other time, to alter the definition of “greater Melbourne” in paragraphs (ga) and (h) of s 9(1) of that Act to account for the abolition of the Cities and Shires listed in the Third Schedule. Nor was the required change made to the definition of “greater Melbourne” in s 64(1) of the LTA 1958 when Parliament introduced, and passed, the … [2005 Act] (in 2005). Instead, the definition in s 64(1) of the … [Act] adopted the same definition of “greater Melbourne”, being the definition of “greater Melbourne” in s 201 of the MMBW Act.
7There was a transitional clause included in the Order in Council of 15 December 1994[6] but, as an Order in Council under the Local Government Act 1989, it had no application, and did not purport to have any application, to the Third Schedule of the MMBW Act and was, in any case, limited to matters within its sphere of operation, being matters “necessary or convenient to give effect to this Part [of the Local Government Act 1989] and to enable the effective implementation of any restructuring.”[7]Furthermore, it was limited to “instruments and documents” and therefore did not apply, and did not purport to apply, to Acts of Parliament (assuming, as an Order in Council, it could have so applied).
8There is therefore no rule of statutory construction, much less any statutory provision, which permits the abolished Cities and Shires in the Third Schedule to have any continued application after 15 December 1994. As French CJ and Hayne J have stated:[8]
The identification of statutory purpose and legislative intent is the product of those processes [of statutory construction], not the discovery of some subjective purpose or intention.

9Ground 2: Alternatively to Ground 1, and without prejudice to it, if the reference to the “Shire of Whittlesea” in the Third Schedule is capable of being construed as meaning the “Whittlesea City Council” after 15 December 1994, the effect would be that only the land owned by EHL Burgess that is located in the Whittlesea City Council, and no other land, is in “greater Melbourne”.[9] All the other land is outside of “greater Melbourne” and therefore exempt under s 65(1).
10Ground 3: Further or alternatively, all the land owned by EHL Burgess that is located in the Mitchell Shire Council is land that is located outside of “greater Melbourne”, and is therefore exempt under s 65(1).
[6]Towson Affidavit, Exhibit APT-1.
[7]Local Government Act 1989, s 220R.
[8]Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 at 390 [25].
[9]See Expert Report, 12 Fig 5.1.

Legislation

Land tax is imposed in respect of each year on all taxable land in Victoria.[10] Taxable land is land that is not exempt land.[11] At the time relevant to the disputed assessment, which was midnight on 31 December 2012,[12] the 2005 Act contained exemptions for “primary production land”. The exemption relevant to this appeal is granted by s 65(1) of the 2005 Act in the following terms:
[10]Land Tax Act 2005, s 7.
[11]Land Tax Act 2005, s 3.
[12]Land Tax Act 2005, s 36.

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

…

Section 64(1) of the 2005 Act contained a definition of “greater Melbourne” in the following terms:

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 in the metropolitan area.

Section 64(3) of the 2005 Act provided that:

The 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.

No Order in Council to this effect has been made pursuant to this provision.

The definition of “greater Melbourne” in the 2005 Act has been amended subsequently.

In any event, s 201 of the Melbourne and Metropolitan Board of Works Act 1958 (“the MMBW Act”) provided, immediately before its repeal, as follows:

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.

In respect of these provisions in the present context, it is to be noted that the definition of “greater Melbourne” in s 64(1) of the 2005 Act does not simply adopt and incorporate the Third Schedule to the MMBW Act which is referred to in these provisions. Rather, the “greater Melbourne” definition incorporates the whole of the definition of “metropolitan area” as provided for in s 201 of the MMBW Act — including the empowering provisions of s 201(2). It follows that under these empowering provisions the definition of “metropolitan area”, hence the definition of “greater Melbourne”, could be modified from time to time as the Government saw fit — including modifications which might have been thought necessary to accommodate any issues with respect to the application and operation of the Third Schedule.

As the Commissioner observes, the Third Schedule to the MMBW Act is lengthy and needs to be read in full:[13]
[13]Melbourne and Metropolitan Board of Works Act 1958, sch 3 (emphasis in original).

THIRD SCHEDULE
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.

This version of the Third Schedule was first inserted into the MMBW Act in 1985 by s 43 of the Town and Country Planning (Transfer of Functions) Act 1985. Subject to amendments not presently relevant, this is the version of the legislation that was in force immediately before repeal of the MMBW Act which took place with effect from 1 July 2007. The Water (Governance) Act 2006 both repealed the MMBW Act and adopted the definition of “greater Melbourne” found in the MMBW Act, which is the subject of this appeal.
The proper construction of “greater Melbourne”
History of the exemption under s 65(1) of the 2005 Act

At the relevant time, 31 December 2012, “greater Melbourne” was defined in s 64(1) of the 2005 Act (with reference to s 64(3)) in terms set out previously.[14]
[14]See above [13]–[17].

As a matter of history, the land tax exemption for primary production land outside “greater Melbourne” was first introduced in 1975, in the Land Tax Act of that year, which amended the Land Tax Act 1958. Sub-section 4(1) of the 1975 amending Act provided as follows:

For paragraph (h) of sub-section (1) of section 9 of the … [Land Tax Act 1958] there shall be substituted the following paragraphs:—
“(ga) land outside the metropolitan area (within the meaning of the Town and Country Planning Act 1961) which is 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;”.

The Second Schedule to the Town and Country Planning Act 1961 did, at that time, include the words: “So 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 201 of the MMBW Act was amended by s 34 of the Town and Country Planning (Transfer of Functions) Act 1985 to define “metropolitan area” by reference to the Third Schedule of the MMBW Act, instead of by reference to the Second Schedule to the Town and Country Planning Act 1961. The new Third Schedule included in it the municipal district of the Shire of Whittlesea. Item 43 of the Schedule to the Planning and Environment Act 1987 amended sub-ss 9(1)(ga) and (h) of the Land Tax Act 1958 to substitute the reference to “the Town and Country Planning Act 1961” with the words “section 201 of the Melbourne and Metropolitan Board of Works Act 1958”.

Effective from 1 January 2006, the Land Tax Act 1958 was repealed and replaced with the 2005 Act; though sub-s 65(1) has remained in the same terms throughout the period of legislative activity to which reference has been made. Between 1 January 2006 and 31 December 2012, the only amendment made to the definition of “greater Melbourne” in s 64(1) of the 2005 Act was to add after the words: “the Melbourne and Metropolitan Board of Works Act 1958”, the following words: “(as in force immediately before its repeal)”.[15] This was a consequential amendment made by item 3.1 of Schedule 1 of the Water (Governance) Act 2006; the legislation which repealed the MMBW Act. This was the only amendment made to the definition of “greater Melbourne” in the period from 1 January 2006 (being the commencement date of the 2005 Act) until 31 December 2012, being the land tax liability date for the purposes of this appeal. Since then, very substantial amendment has been made to the definition of “greater Melbourne” in sub-s 64(1) of the 2005 Act; though no amendment has been made to sub-s 65(1) of the 2005 Act; presumably as it was then thought unnecessary to do so having regard to the nature of the amendments made to sub-s 64(1).
[15]A provision which would appear to add nothing to the operation of s 17(1)(d) of the Interpretation of Legislation Act 1984 with respect to these provisions.

Under the Building a Better Victoria (State Tax and Other Legislation Amendment) Act 2014 (“the 2014 Amendment Act”), the definition of “greater Melbourne” in sub-s 64(1) of the 2005 Act was replaced with a new definition. Sub-section 22(1) of the 2014 Amendment Act amended sub-s 64(1) of the 2005 Act to insert a new definition in the following terms:

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.

By s 25 of the 2014 Amendment Act, a new Schedule 2 was inserted into the 2005 Act, which was to be read with the new definition of “greater Melbourne”. The new Schedule 2 is in the following terms:
SCHEDULE 2
Section 64(1)
GREATER MELBOURNE
PART 1
Banyule City Council
Bayside City Council
Boroondara City Council
Darebin City Council
Glen Eira City Council
Maribyrnong City Council
Melbourne City Council
Monash City Council
Moonee Valley City Council
Moreland City Council
Port Phillip City Council
Stonnington City Council
Whitehorse City Council
Yarra City Council
PART 2
Brimbank City Council
Cardinia Shire Council
Casey City Council
Frankston City Council
Greater Dandenong City Council
Hobsons Bay City Council
Hume City Council
Kingston City Council
Knox City Council
Manningham City Council
Maroondah City Council
Melton City Council
Mitchell Shire Council
Mornington Peninsula Shire Council
Nillumbik Shire Council
Whittlesea City Council
Wyndham City Council
Yarra Ranges Shire Council

Those amendments as effected by the 2014 Amendment Act to which reference has been made took effect, subject to transitional provisions, from 18 June 2014.[16] The Explanatory Memorandum to the Bill which introduced these amendments stated:[17]

The current definition of greater Melbourne is defined by reference to the metropolitan area within the Melbourne and Metropolitan Board of Works Act 1958. This definition is difficult to apply because it refers to administrative boundaries that are no longer in use, such as old council boundaries.

The difficulties which were evidently being posed by the reliance on repealed legislation and former municipal boundaries were highlighted by the Assistant Treasurer when the Bill for the amending legislation was being presented to the Legislative Council in the course of the Second Reading Speech:[18]
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.

[16]See Building a Better Victoria(State Tax and Other Legislation Amendment)Act 2014, s 2(1).

[17]Explanatory Memorandum, Building a Better Victoria (State Tax and Other Legislation Amendment) Bill 2014, 13–4 (emphasis in original).

[18]Parliamentary Debates, Legislative Assembly, 7 May 2014, 1448 (Michael O’Brien).

Returning to the legislative chronology prior to these 2014 amendments, it is to be observed that the 2005 Act commenced on 1 January 2006, at a time during which the MMBW Act was still in force.

The MMBW Act was repealed with effect from 1 July 2007. The provisions of s 201 of that legislation immediately prior to that date — provisions which define “metropolitan area” — have already been set out.[19] Likewise, the Third Schedule to that legislation — to which reference is made in s 201(1) for the purposes of the definition of “metropolitan area” — is also set out above.[20] These provisions of the MMBW Act and the Third Schedule must also be read having regard to the position that no area of land had been declared to be part of the “metropolitan area” under sub-s 201(2)(a) or excised from the “metropolitan area” under sub-s 201(2)(b) of this legislation.
[19]See above [16].
[20]See above [17].

The effect of these provisions was that the Third Schedule (in the context of s 201 of the MMBW Act) defined, at that time, the “metropolitan area” to consist of, among other areas, “the municipal district of the Shire of Whittlesea”. The significance of this in the present circumstances is, of course, that the definition of “metropolitan area” within the meaning of s 201 of the MMBW Act was, at the relevant time, part of the definition of “greater Melbourne” in sub-s 64(1) of the 2005 Act.

Meaning of “the municipal district of the Shire of Whittlesea”

Having regard to the importance of the definition of “metropolitan area” under the MMBW Act and its effect for the purposes of sub-s 64(1) of the 2005 Act, it is important to understand what was meant by the reference to “the municipal district of the Shire of Whittlesea” as words to that effect were used in the Third Schedule of the MMBW Act immediately before its repeal on 1 July 2007. The issue is one of importance, as the Commissioner contends that the area of “greater Melbourne” is, in the present context, relevantly defined by the northern boundary of the municipal district of the Shire of Whittlesea on the basis that this is a municipality listed in the Third Schedule in force immediately before the repeal of the MMBW Act. Burgess, on the other hand, contends that that there is no correlation between the municipal district of the former Shire of Whittlesea and the municipal district of the newly-created Whittlesea City Council. It is to this issue that this historical analysis is directed.

The history of the incorporation of the municipal district of Whittlesea, from the earliest days when the Whittlesea Road District was proclaimed and declared in 1862 until the proclamation of the City of Whittlesea in 1988, is outlined in some significant detail in the submissions of Burgess which, given the issues raised, are helpfully set out as follows:[21]
[21]Appellant’s Outline of Submissions (2 April 2015) [43]–[75].

43By a Proclamation dated 1 December 1862, made by the Captain-General and Governor-in-Chief of the Colony of Victoria, pursuant to An Act for Making and Improving Roads in the Colony of Victoria 1853, being a proclamation published in the Government Gazette on 12 December 1862, the area of land therein specified was proclaimed and declared to be “The Whittlesea Road District”.
44By An Act to Establish Road Districts and Shires and Generally to Provide for the Administration of Local Affairs without the Limits of Boroughs 1863, … it was provided in s II that “[e]very road district existing at the commencement of this Act shall be and be deemed to be a district within the meaning of this Act”.
45Section CCLXXIX of that Act provided that “it shall be lawful for the Governor in Council to proclaim if it shall seem fit such district by such name as in and by such Order in Council may be assigned thereto to be a shire within the meaning of this Act and such district shall thereupon be and be called such shire accordingly”.
46Section CCLXXXI of that Act provided that “[e]very shire shall after proclamation thereof as such be and be deemed to be and have been such and the same district as such shire was at the time of the proclamation and ... all the provisions of this Act relating to districts shall continue and be of full force and effect with regard to such shire and be read accordingly.”
47Section CCLXXXII of that Act provided that “[i]n addition to the rights and privileges conferred by the last mentioned provisions the body corporate and council of every such shire shall have an enjoy the further rights and privileges”.
48On 24 December 1874 an Act entitled An Act to Consolidate and Amend the Laws Relating to Local Government was passed, and took effect from 1 January 1875 (cited as the Local Government Act 1874).
49Section 3 of that Act provided that “[e]very city and town shall be deemed to be a borough; the corporation of every borough shire and road district shall be deemed to be a municipality; the district under the local government of a municipality shall be called its municipal district”.
50Section 10 of that Act provided that:
Notwithstanding the repeal of the Acts hereby repealed—
The boundaries as set forth in the Second Schedule hereto of all shires and boroughs existing at the commencement of this Act, and of those created by this Act, shall be the boundaries of all such shires and boroughs until altered under this Act ...

51 Section 12 of that Act provided that:
The inhabitants of every shire borough town and city for the time being subject to the provisions of this Act shall under the name of the president councillors and ratepayers of such shire ... be a body corporate with perpetual succession and a common seal ... and the corporation of every shire ... as constituted under this Act shall be the same corporation as the corporation of the same shire ... existing at the commencement of this Act.

52Under the Second Schedule of that Act, below the heading “Shires and Road Districts”, at item 101 appears “Whittlesea”, with its land area specified.
53By the Local Government Act 1890, those provisions of the 1874 Act not already repealed were repealed, and provisions similar to those set out above were re-enacted, under the 1890 Act. Section 13 of that Act provided as follows:
The boundaries as set forth in the Second Schedule hereto of all municipal districts existing at the commencement of this Act shall be the boundaries of all such municipal districts unless and until altered under this Act ...

54Item 124 of that part of the Second Schedule entitled “Shires”, was entitled “Whittlesea” and set out the boundaries for the Shire. (The first part of the Schedule was entitled “Cities, Towns and Boroughs”).
55By the Local Government Act 1897, an amendment was made, deeming references to “council” in the principal Act to include “the City of Melbourne” and “the Town of Geelong”.
56Under the Local Government Act 1903, s 12(1) provided that “[t]he boundaries of all municipal districts existing at the commencement of this Act shall be the boundaries of all such municipal districts unless and until altered under this Act.”
57By Governor in Council proclamations between 1903 and 1958, declarations were made defining, and re-defining the boundaries of the Shire of Whittlesea.[22]
[22]Government Gazette, No 115, 15 September 1915, 3342–3; Government Gazette, No 497, 30 May 1956, 2864–5.
58In 1958, the Local Government Act 1958 was passed, in which s 3(2)(a) provided:
Every city and town shall be deemed to be a borough: the corporation of every borough and shire shall be deemed to be a municipality: the district under the local government of a municipality shall be called its municipal district ...

59Section 4 of that Act provided that “[t]his Act shall apply to every municipality constituted or to be constituted but shall not apply to the city of Melbourne or the city of Geelong except where expressly stated.”
60Section 8(1) of that Act provided:
The inhabitants of every shire borough town and city for the time being subject to the provisions of this Act shall, under the name of the president councillors and ratepayers of such shire ... the mayor councillors and citizens of such city as the case may be, be a body corporate with perpetual succession and a common seal ... and shall by such name be capable in law of suing and being sued ... and of doing and suffering subject to the provisions of this Act all such other acts and things as bodies corporate may by law do and suffer.

61Section 8(2) of that Act provided that “[t]he corporation of every shire borough town and city as constituted under this Act shall be the same corporation as the corporation of the same shire ... or city existing at the commencement of this Act.”
62Section 12(1) of that Act provided that: “The boundaries of all municipal districts existing at the commencement of this Act shall be the boundaries of all such municipal districts unless and until altered under this Act.”
63Section 34(1) of that Act, at that time, provided:
(1)After the taking effect of any Order declaring any shire a borough or any borough a city or town constituting any borough a shire under section thirty of this Act the same shall be called a borough city town or shire (as the case may be), and the name of the corporation thereof shall be changed accordingly.
(2)After the taking effect of any Order changing the name of any municipal district and of the corporation thereof the name shall be changed accordingly.
(3)Every such corporation shall notwithstanding be deemed the same before and after such change of name, and no action or other matter or thing shall be affected or abated thereby.

64By the Local Government (Board of Review) Act 1982, s 24B was introduced, which conferred upon the Governor in Council various powers relating to, inter alia, the constitution, subdivision, [and] abolition of municipal districts generally. Under paragraph (k) of s 24B, the Governor in Council was given the power to proclaim a shire or borough to be a city.
65A new s 24C of the Local Government Act 1958 was introduced by the 1982 Act, which provided, inter alia, that “a city may not be constituted or proclaimed unless it is substantially urban in character and has a population of not less than 10 000 inhabitants.”
66By the Local Government (General Amendment) Act 1983, s 8A was introduced, which provided as follows:[23]
[23]Local Government (General Amendment) Act 1983, s 6.
(1)Notwithstanding the provisions of section 8(1), where after the commencement of section 6 of the Local Government (General Amendment) Act 1983 an Order of the Governor in Council is made to provide for any of the matters referred to in paragraph (a) [or] … (k) ... of section 24B that Order may provide that the inhabitants of the shire, borough, town or city in respect of which the Order is made shall be a body corporate under the name given to that shire, borough, town or city ... in that Order and shall under that name—
(a)have perpetual succession;

(b)have a common seal ... ;
(c)be capable in law of—
(i)suing and being sued;
…

(2)The name given to a shire, borough, town or city in an Order referred to in sub-section (1) shall be in whichever of the following forms is applicable:
(a)The President, Councillors and Citizens of the Shire of ... ;
…
(d) The Mayor, Councillors and Citizens of the City of ...

67Section 7(5) of the 1983 amending Act then repealed s 34 of the … [Local Government Act 1958]. Section 34(3) had provided that “[e]very such corporation shall notwithstanding be deemed the same before and after such change of name, and no action or other matter or thing shall be affected of abated thereby.” However, the 1983 amending Act repealed this provision.
68Section 24F, introduced by the … [Local Government (Board of Review) Act 1982], provided that where the Minister was “to make a recommendation to the Governor in Council with respect to any proposal which may be given effect to under paragraphs (f) to (l) of section 24B without referring the proposal [which is the subject of that recommendation] to a Division the Minister shall cause to be given notice of the impending order in the Government Gazette and in a newspaper generally circulating in the municipalities which in his opinion are likely to be affected by the proposal.”
69By Notice, published in the Government Gazette on 9 March 1988, the Minister stated that “[n]otice is given of my intention to make a recommendation to the Governor in Council to proclaim the Shire of Whittlesea to be the City of Whittlesea, without referring the proposal to a Division of the Local Government Commission.”[24]
[24]Government Gazette, No G 9, 9 March 1988, 573.
70By Proclamation, published in the Government Gazette No S 23 on 30 March 1988, the Governor, acting on the advice of the Executive 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.”
71As stated above, s 8A(1) of the … [Local Government Act 1958, as introduced by s 6 of the Local Government (General Amendment) Act 1983,] permitted such an Order to “provide that the inhabitants of the shire ... or city in respect of which that Order is made shall be a body corporate under the name given to that shire ... or city (as the case may be) in that Order and shall under that name— (a) have perpetual succession; (b) have a common seal … ; and (c) be capable in law of— (i) suing and being sued”. However, as can be seen from the terms of the Proclamation, of 30 March 1988, no provision to this effect was made by this Proclamation. Further, s 34 of the … [Local Government Act 1958] had been repealed by that time.
72The Local Government Act 1989, which together with Local Government (Consequential Provisions) Act 1989 repealed and replaced the Local Government Act 1958, received Royal Assent on 9 May 1989. …
73 Section 5 of the Local Government (Consequential Provisions) Act 1989 provided as follows:
(1)The repeal of the Acts specified in Schedule 1 or 3 does not affect the incorporation of any municipality in existence immediately before the commencement of this sub-section.
(2)As from the commencement of this section every corporation (including that of the city of Melbourne and the city of Geelong) is deemed to have been constituted under the Local Government Act 1989.
(3)As from the commencement of this section the body corporate of each municipality is deemed to be the Council of the municipality and any references to a municipality in any document whatsoever is deemed to be a reference to the Council of the municipality.
(4)The name of a shire, borough, town or city in existence immediately before the commencement of this section remains the same until the name is changed in accordance with the Local Government Act 1989.
…

74From the time of its enactment until now, s 4 [of the Local Government Act 1989] has provided:
(1)A Council may be constituted as a—
(a)City Council; or
(b)Rural City Council; or
(c)Shire Council.

(2)The municipal district of a City Council must be predominantly urban in character.
(3)The municipal district of a Rural City Council must be partly urban and partly rural in character.
(4)The municipal district of a Shire Council must be predominantly rural in character.

75Section 5(2) of the Local Government Act 1989 has always provided that: “A Council— (a) is a body corporate with perpetual succession; and (b) must have a common seal; and (c) may sue or be sued in its corporate name”.

The MMBW legislation

The development of this legislation, the MMBW legislation, is also of relevance to the matters in issue. Again, Burgess has provided detailed submissions in relation to the relevant development of this legislation, which it is helpful to set out, as follows:[25]
[25]Appellant’s Outline of Submissions (2 April 2015) [76]–[86].

76Upon its introduction [in 1958], the MMBW Act repealed the … [Melbourne and Metropolitan Board of Works] Act 1928. …
77Section 201 of the MMBW Act provided, at that time, that “metropolitan area” meant “the area described in the Schedule to the Town and Country Planning Act 1958.”
78The Third Schedule to the Town and Country Planning Act 1958 provided as follows:
The Metropolitan Area consists of the following areas:—
(a)The municipal districts of the cities of Box Hill, Brighton, Broadmeadows, Brunswick, Camberwell, Caulfield, Chelsea, Coburg, Collingwood, Essendon, Fitzroy, Footscray, Hawthorn, Heidelberg, Kew, Malvern, Melbourne, Moorabbin, Mordialloc, Northcote, Nunawading, Oakleigh, Port Melbourne, Prahran, Preston, Richmond, Sandringham, South Melbourne, St. Kilda, Sunshine and Williamstown, and of the borough of Ringwood, and of the shires of Altona, Dandenong, Springvale and Noble Park, Doncaster and Templestowe, Keilor and Mulgrave.
(b)So 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.
(c)So much as lies within a distance of twenty-six miles from the said post office of the municipal district of the shire of Frankston and Hastings.
(d)The following portions of the shires of Berwick and Cranbourne:—
Commencing at a point on the boundary of the shire of Cranbourne being the south-east angle of Crown allotment 54, parish of Lyndhurst; thence westerly, northerly, and easterly along that boundary to the boundary of the shire of Berwick; thence northerly along that boundary to the southwest corner of a Public Purposes Reserve in the parish of Narree Worran; thence easterly along the southern boundary and northerly along the eastern boundary of the said Reserve to the south-west angle of Crown allotment 73; thence easterly along the southern boundaries of that allotment and allotments 72, 71, 60, 54, and 53 to the south-east angle of allotment 53; thence southerly along the western boundaries of allotments 1 and 3, section 21, and the eastern boundary of the parish of Eumemmering to the south-east angle of the said parish; thence westerly along the southern boundary of the parish to the north-east angle of Crown allotment 45, parish of Lyndhurst; thence southerly to the northeast angle of allotment 47; thence westerly to the north-east angle of allotment 48; thence southerly to the south-east angle of allotment 43; thence westerly to the south-east angle of allotment 49; thence southerly to the north-east angle of allotment 52; thence westerly to the north-east angle of allotment 54; thence southerly along the eastern boundary of the said allotment to the point of commencement.

(e)The following portion of the shire of Melton:—
Commencing on the southern boundary of the parish of Derrimut at the south-western angle of Crown section 5; thence northerly by Robinson-road to the Kororoit Creek at the north-western corner of section 21; thence northerly and westerly by that creek to the western boundary of the parish of Derrimut; thence southerly by that boundary and easterly by the southern boundary of the parish to the south-western angle of section 5, being the point of commencement.

(f) The following portion of the shire of Fern Tree Gully:—
All that piece of land in the parish of Scoresby, county of Mornington, commencing at the south-western corner of Crown allotment 14B; thence easterly along the southern boundary of that allotment for a distance of 895 links; thence south-westerly by a line across High Street road to the north-western corner of Crown allotment 13A; thence southerly along the western boundary and westerly along the northern boundary of the last-mentioned allotment for a distance of 303 links; thence southerly by lines bearing 180 degrees 929 links and 135 degrees 735 links to the northern boundary of lot 10, lodged plan No. 3723; thence easterly the last-mentioned boundary for a distance of 750 links; thence southerly by a line west of and parallel to the eastern boundaries of lots 10,11 and 12 to the northern boundary of lot 13; thence easterly along the northern boundary and southerly along the eastern boundary of the last-mentioned lot to the northern boundary of Crown allotment 9; thence easterly along the last-mentioned boundary to the western boundary of creation of easement No. 1098188 in favour of the State Electricity Commission; thence southerly along the last-mentioned boundary to the centre of Dandenong Creek; thence generally northerly along the centre of the Dandenong Creek to a point on the continuation of the southern boundary of Crown allotment 14B; thence easterly by a line to the commencing point.

79While not relevant in any way to the question of construction that arises in this appeal, it is noted that ss 202–204 of the MMBW Act dealt with bridges “within the metropolitan area” which were declared to be “metropolitan bridges”. Sections 205–213 dealt with streets or roads in the “metropolitan area”, which had been declared to be “metropolitan highways”. Sections 213–217 dealt with parks and foreshores in the “metropolitan area”, over which the Board had powers of acquisition. Sections 218–223 gave the Board a power to impose a “‘Metropolitan Improvement Rate’ over the whole of the metropolitan area.”
80The Town and Country Planning Act 1961 consolidated and replaced the Town and Country Planning Act 1958. Section 3(1) [of the Town and Country Planning Act 1961] provided a definition of “metropolitan area”, by reference to the Second Schedule “and any other area which the Governor in Council pursuant to this section declares to be added to the metropolitan area.”
81The Town and Country Planning Act 1961 was subsequently amended by the Town and Country Planning (Transfer of Functions) Act 1985. By [s 34 of] this 1985 Amending Act, s 201 of the MMBW Act was replaced with the following provision:
(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.

82By s 43 of this 1985 Amending Act, a new Third Schedule was introduced into the MMBW Act, as follows:
After the Second Schedule to the Principal Act there shall be inserted the following Schedule:
“THIRD SCHEDULE
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 Bullartoroad; 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 southeastern 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 areas deemed by section 55 of the Port of Melbourne Authority Act 1958 to be severed from the municipal districts of the Cities of Footscray, Melbourne, Port Melbourne, and Williamstown.”

83The effect of these amendments in 1985 was to ensure the definition of “metropolitan area” was contained entirely within the MMBW Act.
84By s 51 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”.
85By s 163 of the Water (Governance) Act 2006, the MMBW Act was repealed, with effect from 1 July 2007.
86At the time that the Shire of Whittlesea was declared to be a City — with effect from 15 April 1988 — s 201 of the MMBW Act and the Third Schedule took the form as set out above, at [82] above.

Application of s 64 of the 2005 Act

Reference has already been made to the provisions of sub-s 65(1) of the 2005 Act and the definition of “greater Melbourne” under sub-s 64(1) of that Act and the relevance of the definition of “metropolitan area” under the provisions of s 201 of the MMBW Act.[26] As indicated in the preceding material to which reference has been made, the Third Schedule to the MMBW Act as it existed at the relevant time makes no reference to the Whittlesea City Council, or the City of Whittlesea. The Third Schedule only makes reference to the “municipal district of the Shire of Whittlesea.” For the purposes of the application of sub-s 65(1) of the 2005 Act, which provides that “[l]and outside greater Melbourne that is used primarily for primary production is exempt land”, it is necessary to identify, for the purposes of sub-s 64(1) of that Act, what is meant by the reference to the “municipal district of the Shire of Whittlesea” at the time immediately before 1 July 2007.
[26]See above [12]–[26].

As indicated previously, the Shire of Whittlesea was proclaimed a City with effect from 15 April 1988. Accordingly, the “Shire of Whittlesea” ceased to exist at that time. Moreover, there was no provision made in the Order of the Governor in Council “that the inhabitants of the shire ... or city in respect of which that Order is made shall be a body corporate under the name given to that shire ... or city (as the case may be) in that Order and shall under that name— (a) have perpetual succession”, as provided for in s 8A of the Local Government Act 1958 (as inserted by s 6(1) of the Local Government (General Amendment) Act 1983).[27] Additionally, s 34 of the Local Government Act 1958 had been repealed by the same 1983 amending legislation.[28]
[27]See Government Gazette, No S 23, 30 March 1988.
[28]Local Government (General Amendment) Act 1983, s 11(6).

An alternative view is that the reference to the “Shire of Whittlesea” in the Third Schedule should be read, after the proclamation in March 1988, as referring to the City of Whittlesea; invoking the rule of statutory construction that legislation is “deemed to be always speaking”.[29] There are, however, some significant difficulties with this approach as Burgess contends; some real problems with construction of various legislative provisions and Orders in Council. It is to these difficulties to which I now turn in some detail.
[29]See Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 156–60 [4.9]–[4.12].

More particularly, Burgess submits that if it were sought to apply the “always speaking” approach so that the expression the “the Shire of Whittlesea” meant the “City of Whittlesea” from 15 April 1988, then the real problem of construction arises from the later abolition of almost all of the Cities and Shires, including the City of Whittlesea, in 1994. In 1994, as part of the then State government’s overhaul and restructuring of local government, all Cities and Shires were abolished, except the City of Melbourne which was established by its own Act of Parliament. A reduced number of City Councils and Shire Councils were created in their place, as new and distinct bodies corporate. And, lest it be said that highlighting and relying on these problems is to give the provisions for the definition of “greater Melbourne” no effective operation, it should be observed that s 201 of the MMBW Act provided the necessary machinery, in s 201(2), to address any such difficulties prior to the repeal of this legislation — machinery which was never activated.[30]
[30]See above [12]–[16], [25]. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

As a precursor to the overhaul of local government councils in the State, the Local Government (General Amendment) Act 1993 was enacted. Section 3 of that Act inserted a new s 220Q into the Local Government Act 1989, which provided as follows:

220Q Power to make Orders
The Governor in Council may on the recommendation of the Minister make an Order in Council to do any one or more of the following—

(a)alter the boundaries of a municipal district by adding or removing an area to or from an existing municipal district or an outlying district;
(b)constitute a new municipal district by amalgamating existing municipal districts;
(c)declare an existing boundary of a municipal district;
(d)re-constitute an existing Council;
(e)constitute a new Council;
(f)abolish an existing Council;
(g)constitute a Council as a Shire, Rural City or City;
(h)give a name to, or alter the name of, a Council;
(i) divide a municipal district into wards;
(j)re-constitute a municipal district as an un-subdivided municipal district;
(k)alter the boundaries of the wards of a municipal district by adding or removing an area to or from an existing ward;
(l)reduce the number of wards into which a municipal district is divided;
(m)give a name to, or alter the name of, a ward of a municipal district;
(n) alter the number of Councillors assigned to a Council or each ward;
(o)provide for the interim administration of a new or re-constituted Council until an election is held.

The Local Government (General Amendment) Act 1993 also inserted a new s 220R into the Local Government Act 1989, which relevantly provided:
220RMatters which may be included in Order
(1)The Governor in Council may by Order in Council provide for any matter necessary or convenient to give effect to this Part or to any other Order in Council under this Part and to enable the effective implementation of any restructuring.
(2)Without limiting the generality of sub-section (1), an Order in Council may provide for—
…
(g)transitional provisions in relation to any act, matter or thing done or required to be done by or in relation to any Council affected by the Order in Council.

Acting under the provisions of these amendments, various restructuring Orders in Council were made in 1994, as set out in the Burgess submissions:[31]
[31]Appellant’s Outline of Submissions (2 April 2015) [102]–[106] (citations omitted).

102By Order in Council dated 13 December 1994, and published in the Government Gazette,[32] the following Orders were made (among others):[33]
[32]Government Gazette, No S 97, 15 December 1994, 4–37.
[33]Government Gazette, No S 97, 15 December 1994, 4–6.
Whereas
A.On 1 July 1994 the Acting Minister for Local Government, the Hon. Robert Maclellan, MLA, required the Local Government Board to conduct a review under Part 10B of the Local Government Act 1989 (“the Act”), on the most appropriate structure for the area comprising the municipal districts of the … City of Whittlesea (“the review”).
…
C.As required by sections 220M and 220P of the Act, the Minister has considered the report and has recommended to the Governor in Council that an Order in Council be made in the following terms.

NOW THEREFORE, the Governor in Council acting under Part 10C of the Act ORDERS THAT:
…
3. Constitution of New Councils
(1) On the appointed day there is constituted—
…
(i) a body corporate constituted as a City Council by the name of the Hume City Council.

…
(u) a body corporate constituted as a City Council by the name of the Whittlesea City Council;

…

103Clause 3(2) of the Order in Council provided as follows:[34]
[34]Government Gazette, No S 97, 15 December 1994, 6 (emphasis added).
(2)On the appointed day the following councils cease to exist—
(an) City of Whittlesea.

104Under Part 28 of the Order in Council, clause 61 provided as follows:[35]
[35]Government Gazette, No S 97, 15 December 1994, 12.
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.

105Schedule 27 of the Order in Council was entitled “Boundaries of the Municipal District of the Whittlesea City Council”, and set out the boundaries of the Whittlesea City Council from the appointed day.[36]
106Clause 85 of the Order in Council provides as follows:[37]
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.

[36]Government Gazette, No S 97, 15 December 1994, 30–1.

[37]Government Gazette, No S 97, 15 December 1994, 15.

It is apparent on the basis of the amendments made to the Local Government Act 1989 by the Local Government (General Amendment) Act 1993, and on the basis of the Orders in Council to which reference has been made that the entity known as the City of Whittlesea was abolished and “ceased to exist” as and from 15 December 1994. It follows that even if the “municipal district of the Shire of Whittlesea” referred to in the Third Schedule to the MMBW Act was capable of being read as the “municipal district of the City of Whittlesea”, after the proclamation of the municipality as a City in 1988, the City of Whittlesea was abolished by the Order in Council in 1994 and ceased to exist at that time.

The abolition of the City of Whittlesea and the constitution of a new City Council, being the Whittlesea City Council, was not an isolated, or discrete, change. It was one of a raft of changes under which all of the previously existing Cities and Shires were abolished (except for the City of Melbourne), and under which new City Councils and Shire Councils were created, together with the complete re-definition of municipal boundaries among a greatly reduced number of councils. Moreover, the City of Whittlesea and the Whittlesea City Council were not, and were apparently not intended to be “mirror municipalities”, whereas the Shire of Whittlesea and the City of Whittlesea may have been described as such. The Expert Report shows that the boundaries of the City of Whittlesea were substantially different from the boundaries, and therefore the “municipal district” of the Whittlesea City Council. This was intentional, and was part of the rationalisation of councils in Victoria.[38] The Expert Report also shows that all of the land owned by Burgess south of what was then the Shire of Kilmore was, prior to the Order in Council of 15 December 1994, located in the City of Whittlesea. However, as a result of the Order in Council of 15 December 1994, almost all of the land owned by Burgess (south of what was then the Shire of Kilmore) was located, not in the municipal district of the newly constituted Whittlesea City Council, but in the municipal district of the newly constituted Hume City Council.
[38]See Expert Report, Attachment 7, Local Government Board, Middle and Outer Melbourne Final Report (Local Government Board, 1994) 57, 59.

In these circumstances, it is not possible to regard, simply, the use of the term “Shire of Whittlesea” in the Third Schedule as being capable of meaning the “Whittlesea City Council”, from 15 December 1994. Clearly, some flexibility must be conceded to allow statutory language to adapt to future changes in circumstance under the “always speaking” rule of statutory construction. However, that rule of construction cannot assist in cases where, not only has there been a complete abolition of the relevant legal entities, but where there has also been a pronounced re-definition of the boundaries applying to the former municipalities, such that it is not possible to compare the new with the old with any accuracy. This inability — which, in my view, is demonstrated quite clearly by the provisions to which reference has been made, statutory and Orders in Council, together with the evidence provided by the Expert Report — prevents the “always speaking” rule of construction applying to the legislation in this case.

More particularly, the difficulty here is that, prior to the Order in Council of 15 December 1994, all of the land owned by Burgess south of the boundary of the Kilmore Shire Council (now the Mitchell Shire Council) was situated within the City of Whittlesea but, following the restructuring of the municipalities, most of it was located in the municipal district of the new Hume City Council. This circumstance does, in my view, reinforce the contention by Burgess that this reason to conclude that the ambulatory approach to statutory construction advocated by the Commissioner cannot apply to the Third Schedule, following the Order in Council of 15 December 1994, together with the other restructuring Orders in Council made around this time.

Additionally, and I think equally seriously, the fact that the creation of completely new City Councils and Shire Councils, with no direct “antecedent” to the former Cities and Shires as listed in the Third Schedule, makes it impossible now for the ambulatory approach to statutory construction to be applied to the Third Schedule. A particular and relevant example in point here is the Hume City Council, a newly created municipality in December 1994.[39] It was, therefore, not listed in the Third Schedule to the MMBW Act because prior to December 1994, there was no “municipal district of the City of Hume”. Consequently, on an “always speaking” approach to statutory interpretation, there was no relevant municipal entity in the Third Schedule which can now be taken as referring to the Hume City Council. There is, of course, another dimension to the extent to which the Third Schedule might be said to be ambulatory — but only prior to the repeal of s 201 of the MMBW Act. Thus, prior to this repeal and while the Third Schedule was “alive”, so to speak, it was ambulatory in that its ambit could vary as a result of, for example, the area of the municipal districts described changing in extent, or the area of lands referred to with respect to the Melbourne Port Corporation or the docklands area changing.[40] This ambulatory dimension does not, however, assist where, as now, the Third Schedule is no longer “alive” and there is not even continuity in the municipal corporate entities.
[39]Government Gazette, No S 97, 15 December 1994, 5.
[40]See, with respect to the latter areas, Third Schedule, paragraphs (d) and (e). See also below [72].

Moreover, at best, on an ambulatory approach to statutory interpretation with respect to this legislation at the present time, the term “Shire of Whittlesea” could be read as meaning the “Whittlesea City Council”, but this would only pick up the land owned by Burgess that is east of Merri Creek.[41] This would, as Burgess submits, produce a mis-match in municipal districts.
[41]See the Expert Report, 12 Fig 5.1.

It follows, for these reasons, that there was no satisfactory basis and no rule of statutory construction for attributing to the expression the “Shire of Whittlesea” the meaning of the “Whittlesea City Council”, following the 15 December 1994 Order in Council, because the two entities, and the municipal districts pertaining to these two entities, are radically different. There is no effective common identity between the two, such as to support the application of the “always speaking” rule, much less to support its universal application to all terms used in the Third Schedule. In fact, of the 50 Cities and Shires listed in the Third Schedule, only four retain the same name in some form, being Whittlesea, Frankston, Knox and Melton. It is therefore impossible to read the Third Schedule in this way and, even then, it would fail to produce a mirror image of the former municipality, as demonstrated in the case of Whittlesea. Consequently, it follows that following the Order in Council of 15 December 1994, there was “no municipal district of the Shire of Whittlesea”, nor was there any “municipal district of the City of Whittlesea”.

An alternative view is that the Third Schedule is designed merely to delineate a physical area by reference to what are now former municipal administrative boundaries but, nevertheless, boundaries that remain ascertainable.

In support of this view and position, the Commissioner makes the following observations in relation to the “greater Melbourne” definition:[42]
[42]Commissioner’s Outline of Written Submissions (1 May 2015) [31].

31.We make four observations about the definition of “greater Melbourne”:
(a)First, the draftsperson took care to identify which version of the definition of “metropolitan … [area]” in the MMBW Act should be incorporated into the Act: it was the version in force immediately before its repeal;
(b)Secondly, the draftsperson knew when selecting which definition .to import, that the MMBW Act would cease to apply from 1 July 2007. That may be inferred from the fact that provisions for both the repeal of the MMBW Act and the introduction of the definition of “greater Melbourne” are contained in the same amending Act. Notwithstanding its imminent repeal, the draftsperson wanted to deploy language used in the MMBW Act to be the language which would define “greater Melbourne”;
(c)Thirdly, the language of s 201 incorporated into the Act defines “greater Melbourne” by reference to a defined “area” which is then described in the Third Schedule. The Third Schedule then proceeds to identify “the following areas”. It does so by reference to the boundaries of municipal districts. Those boundaries are precisely ascertainable. Indeed, there is no dispute in this case about the boundaries of those areas. They have relevantly been identified by the Appellant’s own expert, Mr Negri [in the Expert Report];
(d)Fourthly, neither party contends that the statutory context of the MMBW Act should alter the composition of the “area” called by s 64 “greater Melbourne”. This is a case where the language of s 201 and the Third Schedule may be transposed across and into s 64 without difficulty.

On this basis, the Commissioner contends that “greater Melbourne” is, in the present circumstances, relevantly defined by the northern boundary of the municipal district of the Shire of Whittlesea, being a municipality listed in the Third Schedule in force immediately before the repeal of the MMBW Act. The land north of that boundary formed part of the Shire of Kilmore, which is not listed in the Third Schedule. It is therefore not part of “greater Melbourne”. The Commissioner observes that this boundary was not altered following the creation of replacement municipal districts in 1994 and that whilst it ceased to be of significance for the MMBW Act following its repeal, it continued to be applicable under the 2005 Act precisely because it was the relevant boundary selected by the draftsperson in 2005 which Parliament intended should thereafter be operative.

The Commissioner submits that the contention by Burgess that the definition of “greater Melbourne” has no meaning because at the time the definition was to be applied (here, 31 December 2012), the Cities and Shires identified in the Third Schedule to the MMBW Act had ceased to exist is misconceived. The efficacy of the definition incorporated into the 2005 Act from the MMBW Act is not dependent, the Commissioner says, in any way, on the continued existence in 2012 of the municipal corporations identified in the Third Schedule. The definition remains, he says, efficacious precisely because it permits a boundary to be fixed which delineates greater Melbourne. It does this by identifying the boundaries of former municipal districts. In essence, the Commissioner submits, the draftsperson selected a definition of “greater Melbourne” that is a “fixed-time” provision.[43] Whether an enactment is a “fixed-time” provision is a matter of construction.[44]
[43]See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 14 [23]; Giannarelli v Wraith (1988) 165 CLR 543 at 567; Oliver Jones and Francis A.R. Bennion, Bennion on Statutory Interpretation (LexisNexis Butterworths, 6^th ed, 2013) 909.
[44]Section 17 of the Interpretation of Legislation Act 1984 is not relevant to this task of construction. That is because there was nothing in s 201 or the Third Schedule of the MMBW Act that was relevantly amended. The text of the MMBW Act stayed the same. Rather, the issue of construction is what is connoted by the phrase “municipal districts of the Shires of Bulla and Whittlesea”.

The Commissioner also seeks support for his contentions in this respect by reference to the text of s 64 of the 2005 Act and s 201 and the Third Schedule to the MMBW Act. There are, he says, six matters in these provisions that demonstrate it was a “fixed-time” provision:[45]
[45]Commissioner’s Outline of Written Submissions (1 May 2015) [38].

(a)There was a notable difference in s 64 of the [2005] Act between the definition of “greater Melbourne” and the definition of “urban zone”. The definition of “urban zone” expressly included the words “in force” to demonstrate the ambulatory nature of that definition. There are no comparable words in either s 64 of the [2005] Act or in s 201 or the Third Schedule of the MMBW Act.
(b)The Act was re-made in 2005. At that time, it was notorious that the Cities and Shires referred to in the Third Schedule of the MMBW Act had been abolished. If the Parliament intended to refer to the then-existing municipal boundaries of the then-existing Councils under the Local Government Act 1989 it would have done so. There is no basis for suggesting that the continued reference to the Cities and Shires in the Third Schedule of the MMBW Act was an oversight.
(c)Furthermore, notwithstanding the MMBW Act was repealed with effect from 1 July 2007, the [2005] Act continued to refer to the Third Schedule of the MMBW Act. Again, had Parliament intended to refer to municipal boundaries of the then-existing Councils under the Local Government Act 1989 it would have done so. Instead, the Parliament amended s 64 of the [2005] Act in 2006 to make plain that for the purposes of that section, s 201 of the MMBW Act continued to have effect. Prior to that amendment, the original definition of “greater Melbourne” in the [2005] Act was:
“greater Melbourne” has the same meaning that “metropolitan area” has in section 201 of the Melbourne and Metropolitan Board of Works Act 1958.

(d)By item 3 of Schedule 1 of the Water (Governance) Act 2006, this old definition was repealed and replaced with the definition set out at par 15 above. The new words inserted in the definition of “greater Melbourne” — “(as in force immediately before its repeal)” — do not demonstrate that the definition was to have an ambulatory operation. Rather, those words make clear that the future repeal of the MMBW Act would not deprive the definition of meaning; those words confirm that notwithstanding the repeal of the MMBW Act, it continues to have operation for the purposes of s 64 of the [2005] Act.
(e)Paragraphs (b) and (c) of the Third Schedule prescribe very specific portions of identified Shires. They do so by taking identified starting points on a municipal boundary. That can only sensibly be done if the municipal boundaries were (and remain) fixed in time.
(f)Section 201 of the MMBW Act conferred an express power on the Governor-in-Council to add land to, or excise land from, the “metropolitan area”. The existence of that power is more consistent with the “metropolitan area” otherwise being fixed in time.
(g)Further, the powers to amend the “metropolitan area” conferred by s 201 include language about the exercise of the power that confirms the ambulatory nature of the power: “from time to time” and “for the time being”. However, and in contrast, that language is conspicuously absent from the Third Schedule.

That the approach advocated by the Commissioner involves impermissible reconstruction or writing of legislation is demonstrated by careful consideration of the transitional clause in the Order in Council, which applies so that any reference in “any instrument or any other document of any kind to the former Council is … to be construed as a reference to a newly constituted Council”.[70] Clearly, the “instruments” or “documents” to which this clause is referring are instruments or documents according to their legal meaning.
[70]Government Gazette, No S 97, 15 December 1994, 15.

An Act of Parliament is not any “instrument” or “document”, but is the constitutional manifestation of a State’s lawmaking authority. In any delegated, and primary, legislation, where it is the intention to refer to legislation, the words “Act, or provision of an Act”, or the like, are used. Acts and provisions of Acts of Parliament are not referred to as “instruments” or “documents” in legislation itself, primary or delegated.

In Azevedo v Secretary, Department of Primary Industries and Energy,[71] the meaning of “instrument” was considered. In that case, French J (as his Honour the Chief Justice then was) said:[72]

Section 7B of the Fisheries Act 1952 (Cth) requires that the determination of a plan of management be by instrument in writing. The word “instrument” as used in s 46 of the Acts Interpretation Act 1901 (Cth) is not defined except to the extent that it includes rules, regulations and bylaws. The ordinary meaning in this context is a “formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form”: Shorter Oxford English Dictionary. It may be debatable whether a plan of management could be said to have a direct legal effect in the way that regulations or bylaws do.

[71](1992) 35 FCR 284.

[72](1992) 35 FCR 284 at 299–300.

Moreover, an “instrument” is generally a document issued, with relevant authority, under an Act of Parliament, or a formal legal document to which, for example, stamp duty may be applied — which, traditionally, operated as a tax on “instruments”, as opposed to a tax on transactions. In relation to the former concept of “instrument”, Bowen CJ, Beaumont and Wilcox JJ said in Barton v Croner Trading Pty Ltd:[73]

The word “instrument” is of wide import ... In the Acts Interpretation Act 1901 (Cth) the word is used to include, at least, any writing designed to carry into effect a statute … The authorisation of the Attorney-General is therefore, an instrument to which s 46(b) [of the Acts Interpretation Act 1901 (Cth)] applies.

[73](1984) 3 FCR 95 at 110.

Accordingly, it is clear from the authorities and from common legislative usage that the reference to “any instrument or document” is considered to be, or include, a reference to instruments or documents to which the local government entity may be a party — such as a contract or deed — or any official document representing the due exercise of power by a council, under, ultimately, the Local Government Act 1989. In my view, it is clear that the intention behind clause 85 of the Order in Council was, as appears from the language used and its terms, to ensure that all pre-15 December 1994 contracts entered into by the Council in the conduct of council business, and all instruments reflecting the due exercise of power by a Council under the Local Government Act 1989 before 15 December 1994 remained valid and enforceable. For these reasons, I accept the contention by Burgess that on no view of clause 85 of this Order, given its limited purpose under the Local Government Act 1989, could it be said that this clause could apply to Acts of Parliament — or, particularly, for these purposes, the MMBW Act, to which the Local Government Act 1989 had no relevant relationship. This position is, in my view, reinforced by a variety of other considerations, to which I now turn.

The Order in Council published on 15 December 1994 was made pursuant to the power conferred by sub-s 220R(1) of the Local Government Act 1989, a provision which permitted Orders to be made “for any matter necessary or convenient to give effect to this Part or to any other Order in Council under this Part to enable the effective implementation of any restructuring.” The Order in Council of 15 December 1994, and clause 85 within it, was made for the purpose of enabling the “effective implementation of the restructuring” of the local councils at the time — and for no other purpose. Consequently, clause 85 of this Order, whatever else may be its limitations, must be construed in this light.

Moreover, clause 85 of the Order in Council published on 15 December 1994 cannot be applied in any manner in construing any provision in primary legislation, much less the MMBW Act or the land tax legislation of 1958 or 2005. When considering a similar question, Edmonds and Nicholas JJ said, in Federal Commissioner of Taxation v Macoun:[74]

With great respect, this process of reasoning is flawed in two main respects. First, it adopts a “bottom up” approach to the construction of a statute ... by reference to the terms of relevant delegated regulation … rather than a “top down” approach. As French CJ said in Plaintiff M47/2012 v Director-General of Security:[75]
Generally speaking an Act, which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations.[76] That would be a case of the tail wagging the dog.

Similarly, in Hunter Resources Ltd v Melville,[77] Mason CJ and Gaudron J said that: “Of course it is not permissible to interpret the statute by reference to the regulations.”

[74](2014) 277 FCR 265 at 274–5 [40].

[75](2012) 251 CLR 1 at 42 [56].

[76]Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244.

[77](1988) 164 CLR 234 at 244.

An additional point made by Burgess which reinforces the position as previously indicated is that sub-s 220S(1) of the Local Government Act 1989 has no application in the present case. First, the scope of any Order in Council is confined to the purpose for which it was made. In this case, the Order was made for the purpose of establishing “the most appropriate local government structure for the area comprising the municipal districts” of the Cities and Shires named in the Preamble to the Order, and was made pursuant to the Local Government Act 1989.[78] The Order in Council of 15 December 1994 was not made for the purpose of amending the MMBW Act or the land tax legislation of 1958 or 2005. In any event, it would have been ultra vires had it purported to do so. Second, subordinate legislation, whatever its status, cannot amend, or alter, primary legislation — much less primary legislation unrelated to the statute pursuant to which the delegated legislation was made. The only “exception” in this respect might be a “Henry the Eighth clause”, but which is not relevant in the present circumstances.[79] Thirdly, even if the Order in Council was said to have legislative status — which it cannot have for the purpose of amending other legislation — clause 85 of the Order only applies, or only purports to apply, to “instruments” and “documents”. As indicated previously, an Act of Parliament is not relevantly an “instrument” or “document”. The amendment of statutes is not effected, and cannot be effected, by delegated legislation providing that references in “instruments” and “documents” are to be construed in a particular manner.
[78]Government Gazette, No S 97, 15 December 1994, 4.
[79]See Perry Herzfeld, Thomas Prince and Stephen Tully, Interpretation and the Use of Legal Sources: The Laws of Australia (Thomson Reuters, 2013) 312 [25.1.2800].

Approach to statutory construction

It is clear, from the authorities to which reference has been made, and is made in the reasons which follow, that regard may not be had to subordinate legislation under unrelated legislation when seeking to interpret that unrelated legislation. This is, of course, an even more remote position from a position that subordinate legislation may have some relevance to its empowering legislation — a proposition which must also be rejected. It follows that in the present circumstances, regard may not be had to the Order in Council published on 15 December 1994 when seeking to interpret the Third Schedule, much less the land tax legislation of 1958 or 2005.

In Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross, French CJ and Hayne J said:[80]
[80](2012) 248 CLR 378 at 388–9 [23], [25] (citations omitted).

23 It is as well to begin with consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[81]
[81](2009) 239 CLR 27 at 46–7 [47] (citations omitted).
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.

…
25… The purpose of a statute resides in its text and structure. 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. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[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.”[82]
[82]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] (emphasis added).

French CJ and Hayne J continued:[83]
[83]Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 at 389–90 [25]–[26] (citations omitted).
25… The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
26A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:[84]
Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.

And as the plurality said in Australian Education Union v Department of Education and Children’s Services:[85]
In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.

[84]Justice James Spigelman, “The Intolerable Wrestle: Developments in Statutory Interpretation” (2010) 84 Australian Law Journal 822, 826.

[85](2012) 248 CLR 1 at 14 [28] (citations omitted).

In the Lloyd's Underwriters case,[86] the question also concerned the adoption of a defined term in one statute, the “source statute”, by another statute. It is not necessary to consider the facts of that case for present purposes — and the particular cross-referenced definition in that case — but the joint judgment of French CJ and Hayne J (with whom Kiefel J agreed) is, in my view, very sound authority for the care that is needed when applying a defined term from a “source statute” to the statute under consideration. Thus, French CJ and Hayne J said:[87]

The reasons of the Court of Appeal illustrate the dangers of reasoning from legislative “intention” that is not based, as it must be, in the text of the relevant legislation. The Court of Appeal stated that there was “no basis” in “the policy underlying the legislation” ... for imposing the costs limiting provisions of the latter Act “without reference to the carefully crafted exclusions in s 9(2)” of the Civil Liability Act 2002 (NSW). No foundation for making such an assumption about “the policy underlying the legislation” was identified, whether in the reasons of the Court of Appeal or in argument in this Court ... To say, as the Court of Appeal did, that there was “no basis” in extrinsic material or “in terms of the policy underlying the legislation” for imposing the costs limiting provisions on all claims for personal injury damages is to assume the answer to the question of construction and then ask whether the assumed answer is falsified.

[86]Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378.

[87]Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 at 394–5 [40] (citations omitted).

In my opinion, the authorities to which reference has been made and the legislative provisions relied upon support the following submissions by Burgess:[88]
[88]Appellant’s Outline of Submissions (2 April 2015) [152]–[162] (citations omitted).

152Accordingly, the adoption of the definition of “metropolitan area” in s 201 of the MMBW Act by s 64 of the … [2005 Act] is an exercise to be undertaken without resort, or reference, to any perceived purpose of the incorporation of s 201 of the MMBW Act into the … [2005 Act]. That is, the adoption of a cross-referenced definition is not the occasion for licence. It is, in this respect, a mechanical exercise — a form of statutory “transplant”.
153The language of the Third Schedule is therefore to be adopted direct into s 64 (and s 65(1) of the … [2005 Act]), without the making of any “a priori assumptions about its [the Third Schedule’s] purpose”, and without modification.
154The one thing that the s 64(1) definition does do — by way of qualification — is stipulate that the definition to be adopted is the definition under the MMBW Act at the time “immediately before its repeal”. Accordingly, the … [2005 Act] requires that the definition to be adopted be the meaning of the term as at 30 June 2007 — being a time when all the named Cities and Shires in the Third Schedule (except for the City of Melbourne) had long been abolished — being a fact which Parliament knew in 2005 when the … [2005 Act] was passed.
155This, therefore, is not a case of interpreting the … [Land Tax Act 1958] where, in some circumstances, cross-referenced definitions in other legislation may have accommodated an ambulatory operation. A simple, and clear, example of this relates to paragraph (e) in the Third Schedule, which refers to “the docklands area within the meaning of the Docklands Act 1991.”When paragraph (e) was first added to the Third Schedule, in 1998, it read: “the docklands area within the meaning of the Docklands Authority Act 1991”. By an amendment made in 2003 (s 91 of the Victorian Urban Development Authority Act 2003), the name of the Act referred to in (e) was changed from the “Docklands Authority Act 1991” to the “Docklands Act 1991”. In those circumstances, it is considered that, had there not been the consequential amendment made to paragraph (e) of the Third Schedule (in 2003), the reference to the former “Docklands Authority Act 1991” would have been given an ambulatory operation and would have, as a result, been construed as a reference to the “Docklands Act 1991”.[89]. That, it is submitted, is a typical example of the (uncontroversial) ambulatory operation of terms used in legislation. However, as it happened, Parliament made a specific (but not necessary) consequential amendment to paragraph (e) of the Third Schedule.
[89]See Interpretation of Legislation Act 1984, s 17(1)(a).
156It is also noted that, while the title to the Docklands Authority Act 1991 was changed, there were no amendments made, by that amending Act, to the definition of the “docklands area” in that Act. Had there been any such change, s 17(1)(a) [of the Interpretation of Legislation Act 1984] would have applied so that the reference to the “docklands area” would have been a reference to that expression in the Docklands Act 1991, as amended from time to time.
157Accordingly, while Parliament was alive to this formal name-change in 2003, and made this amendment to paragraph (e) of the Third Schedule, Parliament did not at this time (or at any other time) make any amendments to paragraphs (a), (b) or (c) of the Third Schedule — all of which had become obsolete many years before 2003 (being the year of the Docklands Authority Act 1991 amendment).
158In this respect, it is observed also that, in 1997, an amendment was made to the Third Schedule to add the Melbourne Port Corporation land to the “metropolitan area” under the Third Schedule (by … [s 12(11) of the Water Acts (Further Amendment) Act 1997], by … [substituting a new] paragraph (d) [in]to the Third Schedule). But, again, while Parliament had taken the trouble to make this amendment to the Third Schedule in 1997, no amendments were made to paragraphs (a), (b) or (c) of the Third Schedule in 1997.
159Finally, in relation to the process of statutory construction, reference is made to the following statements by Croft J in Clarke v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq):[90]
[90][2014] VSC 516, Annexure [463], [466] (citations omitted).
[463]Unfortunately, judicial utopia does not exist. The question of construction having been raised, this Court must now construe the statute; a process which is more than choosing between the plaintiffs’ and the defendants’ interpretations. …
[466]The requirement to identify the legislative intention disclosed by the meaning of the statutory language directs attention to the legislative text. In their work, Interpretation and the Use of Legal Sources: The Laws of Australia, Herzfeld, Prince and Tully observe that statutory construction is always a text-based activity and the task of construction must begin with the text itself. The intention of Parliament is ascertained by determining the meaning of the statute having regard to the applicable common law and statutory rules of construction.

160At [465] of the Annexure, Croft J referred to the High Court decision in CIC Insurance Ltd v Bankstown Football Club Ltd, where it was held:[91]
Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

161Reference, in this respect, is made to s 35 of the Interpretation of Legislation Act 1984 which provides that: “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 … shall be preferred to a construction that would not promote that purpose or object”. As is apparent from our submissions above, there is, respectfully, no alternative construction that is open, or even reasonably open, in light of the drafting of the Third Schedule to the MMBW Act.

162As observed above, the Cities and Shires named in paragraphs (a)–(c) in the Third Schedule (except for the City of Melbourne) had, at the relevant time (30 June 2007), been abolished — and had not been “continued” by any transitional provision in any legislation. These terms therefore had no meaning, and were incapable of being applied as legislation. This is the only construction open on the drafting of the Third Schedule; there is no alternative construction open in light of the legislative drafting used. And inconvenience, or improbability, of outcome is not, of itself the basis for an alternative construction. The basis for a legitimate alternative construction must be identified from the language used by the statute (and not from “the making of some a priori assumption about its purpose”).[92]

[91](1997) 187 CLR 384 at 408 (emphasis added).

[92]Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 at 390 [26].

In my opinion, relying on the authorities and having regard to the issues of construction and the relationship between the various legislative regimes which are examined in the Burgess submissions, the approach to the interpretation of these provisions as contended by Burgess must be accepted. The issues of construction and the relationship between legislation and delegated legislation is not addressed, other than in a broad brush way by the Commissioner, an approach which does not have regard to the statutory language and the hierarchy of sources of legislative power.

Thus, the conclusion contended for by Burgess does, in my view, state the position with respect to the relevant legislative positions:[93]

162As observed above, the Cities and Shires named in paragraphs (a)-(c) in the Third Schedule (except for the City of Melbourne) had, at the relevant time (30 June 2007), been abolished - and had not been “continued” by any transitional provision in any legislation. These terms therefore had no meaning, and were incapable of being applied as legislation. This is the only construction open on the drafting of the Third Schedule; there is no alternative construction open in light of the legislative drafting used. And inconvenience, or improbability, of outcome is not, of itself the basis for an alternative construction. The basis for a legitimate alternative construction must be identified from the language used by the statute (and not from “the making of some a priori assumption about its purpose”[94]).

[93]Appellant’s Outline of Submissions (2 April 2015) [162].

[94]Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 at 390 [26].

A further aspect with respect to the approach to statutory construction relied upon by Burgess is the taxation and fiscal nature of the provisions on which the Commissioner relies. There can be no doubt, in my view, that the provisions of ss 64 and 65 of the 2005 Act are provisions of this nature. It follows that other provisions upon which they rely or “incorporate”, such as s 201 of the MMBW Act are, in the context of the present circumstances, to be treated as part of the suite of taxation and fiscal provisions they relied upon as part of a legislative regime imposing taxation — land tax in this case.

The authorities with respect to the proper approach to the construction of taxation and fiscal legislation are discussed by Pearce and Geddes.[95] It is helpful for present purposes to set out their opening discussion of the approach to be applied with reference to some leading authorities:[96]
[95]Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 385–96 [9.35]–[9.49].
[96]Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 385–87 [9.35].

In Commissioner of Stamp Duties (NSW) v Simpson Barton J referred to the literal rule as that which should be applied to taxing statutes in the same way as it is applied to any other statute.[97] He cited Viscount Haldane LC in Lumsden v Inland Revenue Commissioners:[98]
[97](1917) 24 CLR 209 at 215–16.
[98][1914] AC 877 at 896–7.
[T]he duty of judges in construing statutes is to adhere to the literal construction unless the context renders it plain that such a construction cannot be put on the words. This rule is especially important in cases of statutes which impose taxation.

While this general approach is cited in most cases, it usually has added to it the corollary that a person is only to be taxed if clearly falling within the words of the section. If the Act in the end leaves a doubt as to its meaning, the taxpayer is to be given the benefit of the doubt. The position was summarised by Lord Russell of Killowen in the following words in Inland Revenue Commissioners v Westminster (Duke):[99]
[99][1936] AC 1 at 24–5.
I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a Court’s view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord Cairns said many years ago in Partington v Attorney-General:[100] “As I understand the principle of all fiscal legislation it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.”
[100](1869) LR 4 HL 100 at 122.

This passage was cited with approval by Latham CJ in Anderson v Commissioner of Taxes (Vic).[101] However, even this concession to the taxpayer seems to be assuming less significance. Sangster J said in Symington v City of Port Adelaide:[102]
[101](1937) 57 CLR 233 at 239.
[102](1974) 8 SASR 209 at 214–15.
One only has to read a series of tax cases on any one point, however, to notice that the emphasis given by the High Court of Australia to this principle has markedly diminished over the years, until by now this principle must, in my opinion, merely take its place amongst the other principles available to be invoked in any given case, and as subordinate to the primary task of looking at the words used and ascertaining whether they have an ordinary and natural meaning, and to the ultimate task of ascertaining what the Legislature meant by the words it used.

This passage has been cited with approval in Norfolk Estates Ltd v Cadiz Corp Pty Ltd;[103] Walsh v Federal Commissioner of Taxation.[104] In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, Mason and Wilson JJ said:[105]
The fact that the Act is a taxing statute does not make it immune to the general principles governing the interpretation of statutes. The courts are as much concerned in the interpretation of revenue statutes as in the case of other statutes to ascertain the legislative intention from the terms of the instrument viewed as a whole.

… In Deputy Federal Commissioner of Taxation (Vic) v Sheehan Tadgell J commented:[106]
If … there are two constructions of which a taxing Act is capable, one of which would facilitate the evident object of the legislature and the other of which would plainly thwart it, one is not justified in preferring the latter merely because it would be more favourable to the subject.

[103](1978) 9 ATR 252 at 271–2.

[104](1983) 13 ATR 861 at 874.

[105](1981) 147 CLR 297 at 323.

[106](1986) 86 ATC 4718 at 5728.

In the present circumstances, it is, in my view, clear from the preceding reasons that the Commissioner’s contentions do not advance a construction of the relevant provisions which provide, with the construction contended for by Burgess, “two constructions of which a taxing Act is capable” (in the words of Tadgell J). Ordinary principles of statutory construction do not provide a construction of which the legislation is capable. Imposing liability on the basis contended for by the Commissioner would be to impose taxation “by inference” (in the words of Lord Russell of Killowen).

In any event, in my view, the characterisation of the relevant legislation as taxation or fiscal is not critical in the reasons which lead me to reject the Commissioner’s contentions in favour of the position contended for by Burgess. Rather, they merely strengthen the position I have reached in any event with respect to the proper construction of the relevant legislation.

Land in the Mitchell Shire

Burgess owns land that is located within the boundaries of the Mitchell Shire, namely, the land represented by Certificates of Title volume 8709, folio 198; volume 9371, folio 922 and volume 5804, folio 612; as well as part of the land represented by Certificate of Title volume 3481, folio 102. Rates notices have been issued by the Mitchell Shire Council for those properties.

The Mitchell Shire Council was created by Order in Council dated 15 November 1994, and published in the Government Gazette on 18 November 1994. Clause 3(1) of this Order in Council provided that, inter alia: “On the appointed day there is constituted— … (i) a body corporate constituted as a Shire Council by the name of the Mitchell Shire Council”.[107] Under Part 10 of this Order in Council, clause 21 provided that: “On the appointed day the boundaries of the municipal district of the Mitchell Shire Council shall be fixed as described in Schedule 10.”[108] Following the constitution of the Mitchell Shire Council on 18 November 1994, the land owned by Burgess to which reference has been made continued to be located in the Shire of Kilmore up until the time immediately after 15 December 1994, the date of the other “restructuring Order”, to which reference has previously been made.[109]
[107]Government Gazette, No S 87, 18 November 1994, 2.
[108]Government Gazette, No S 87, 18 November 1994, 4.
[109]See Expert Report, 9 Fig 4.1, 10 [24].

Following the creation of the Mitchell Shire Council on 18 November 1994 and the fixing of the municipal boundaries for the Mitchell Shire Council at that time, the boundaries of that Shire Council were adjusted by a later Order in Council, dated 17 January 1995; which was published in the Government Gazette No S 2 on 19 January 1995. Under Part 9 of that Order, clause 19 provided that: “On the appointed day the boundaries of the municipal district of the Mitchell Shire Council shall be fixed as described in Schedule 7.”[110] Sub-clause 3(2) of this Order provided that: “On the appointed day the following councils cease to exist— ... (h) Shire of Kilmore”.[111] The effect of this Order in Council was that the land formerly within the Shire of Kilmore became part of the Mitchell Shire.[112]
[110]Government Gazette, No S 2, 19 January 1995, 4.
[111]Government Gazette, No S 2, 19 January 1995, 2.
[112]See also Expert Report, 10 [25], 12 Fig 5.1, 13 [31].

Burgess contends and the Commissioner does not dissent from the proposition that as the Shire of Kilmore is not listed in the Third Schedule and nor is the Mitchell Shire, it follows, consequently, that land situated within the boundaries of the Mitchell Shire is land situated outside of the “metropolitan area”, as defined by s 201 of the MMBW Act and is, therefore, land situated outside “greater Melbourne”. It follows from this that the land owned by Burgess located within the boundaries of the the Mitchell Shire (as depicted in Fig 5.1 of the Expert Report), is exempt land under sub-s 65(1) of the 2005 Act. Moreover, the Commissioner concedes that the effect of these provisions is that that part of the land represented by Certificate of Title volume 3481, folio 102 which is within the boundaries of the Mitchell Shire, is exempt land for the purposes of these provisions and the fact that the whole parcel is not outside “greater Melbourne” does not affect this position.

Conclusions

It follows for the preceding reasons that, based on the language used in the 2005 Act and the MMBW Act, “greater Melbourne” 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.

As submitted by Burgess, it is, naturally, not necessary to prove that none of the municipalities, except the City of Melbourne, were in “greater Melbourne” for the purposes of this appeal; though this is said to be the consequence of the abolition of all the Cities and Shires in 1994. It is the position that all Burgess is required to show is that the land which it owned was not in “greater Melbourne” or was outside of “greater Melbourne”. As indicated and as is common ground, the land owned by Burgess located within the Mitchell Shire Council was, without question, and accepted to be located outside of “greater Melbourne”. Moreover, the land owned by Burgess located in the Hume City Council was also not land in “greater Melbourne” as the Hume City Council is not named in the Third Schedule and the Hume City Council is not, by any permissible means, a statutory construction, referred to in or by the Third Schedule.

The land owned by Burgess located within the Whittlesea City Council is also not land located in “greater Melbourne”, as the Whittlesea City Council is not listed in the Third Schedule. Moreover, in this regard, the Shire of Whittlesea, which is listed in the Third Schedule, ceased to exist on 15 April 1988 when it was proclaimed a City and the City of Whittlesea (if the Shire of Whittlesea may, as I think it may, be read as referring to the City of Whittlesea after 15 April 1988) was abolished as a legal entity on 15 December 1994. In light of the radical changes made to both the local government entities and the municipal districts of the then newly constituted local government entities in 1994, it is not possible now to apply an “always speaking” approach to the entities or land areas described in the Third Schedule. As indicated previously, of the 50 local government entities listed in paragraphs (a) to (c) of the Third Schedule, all but one was abolished and, of the new entities that were created, only four used names that were used in the 45 entities listed in the Third Schedule. One of these was Whittlesea. However, as the Expert Report shows, there was no real correlation between the municipal district of the former City of Whittlesea and the municipal district of the newly created Whittlesea City Council. I accept, as explained in the preceding reasons, that there is, consequently, no safe, or accurate, basis for applying an ambulatory approach to this expression, or to any of the expressions used in the Third Schedule.

I do also accept the submission by Burgess, in the alternative, that if it were wrong with respect to the matters that I have now found and there was considered to be a basis for reading the reference to the “Shire of Whittlesea” as meaning the newly created Whittlesea City Council, it would mean that only the land owned by Burgess located in the municipal district of the Whittlesea City Council would be located in “greater Melbourne”. The only land owned by Burgess within that municipal district within “greater Melbourne” would, on this basis, only be the land described in the Expert Report (at Fig 5.1), being the land described in paragraph 31 of the Expert Report. Accordingly, the only land owned by Burgess that could, on this basis, be said to be within “greater Melbourne” is this Whittlesea City Council land, east of Merri Creek — but no other land.

Orders

For the preceding reasons, the appeal is successful to the extent that it is now pursued.

I reserve the question of costs.

[2015] VSC 295

3 July 2015