Fortescue Metals Group Limited and Ors v The Commonwealth of Australia - [2013] HCATrans 43

[2013] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S163 of 2012

B e t w e e n -
FORTESCUE METALS GROUP LIMITED ACN 002 594 872
First Plaintiff
CHICHESTER METALS PTY LIMITED ACN 109 264 262
Second Plaintiff
FMG PILBARA PTY LIMITED ACN 106 943 828
Third Plaintiff
FMG MAGNETITE PTY LIMITED ACN 125 124 405
Fourth Plaintiff
FMG NORTH PILBARA PTY LIMITED ACN 125 154 243
Fifth Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 MARCH 2013, AT 10.00 AM

(Continued from 7/03/13)

____________________

FRENCH CJ: Please call the part‑heard matter. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, may I go immediately to the issue raised by your Honour Justice Hayne at the conclusion of proceedings yesterday? It is at the transcript lines 7005 to 7015, and could I give your Honours first the answer to the question and then the reasons why I make that answer? Your Honours, our answer is that the expression used in section 91 “from granting any aid to or bounty on mining” and the similar expression in the second part of section 91, does not refer only to outlays of money. Your Honours, it includes, we would submit, aid by way of reduction or deferral of payment of moneys which otherwise would be payable.

Now, your Honours, the reasons why that view, in our submission, should be adopted is that, first, there were many forms of monetary aid provided for by the States. One can be seen in Victoria and may I come to it in three stages ‑ in relation to mining? First of all, your Honours, there was the Mining Statute 1865 (Vic), the precursor of Australian mining laws. It should be amongst the papers your Honours have today.

I said it was a precursor of Australian mining laws. That is discussed in a document that is attached to the small bundle by Lang and Crommelin, Australian Mining and Petroleum Laws at page 3, paragraph [105]. All I want to refer to this statute for is to refer particularly to sections 43 and 45. They provided in relatively general terms for the making of regulations as to royalties - that is section 43 – and then for the “Governor in Council notwithstanding any such regulation” to prescribe in relation to a particular lease what the royalties should be, et cetera – that is section 45. Your Honours, that is the starting enactment.

That enactment was replaced by the Mines Act 1890 and your Honours will see provisions to similar effect in section 77 in the second item of the regulation‑making power, and also in section 79, the power “for the Governor in Council, notwithstanding” the regulations, to act differently.

Now, your Honours, that Act came into force on 1 August 1890 and very…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fortescue Metals Group Limited and Ors v The Commonwealth of...

Details

AGLC: Fortescue Metals Group Limited and Ors v The Commonwealth of Australia [2013] HCATrans 43
Case: [2013] HCATrans 43
Decision Date

CaseChat Overview and Summary

Fortescue Metals Group Limited and Ors (the applicants) brought proceedings against the Commonwealth of Australia (the respondent) in the High Court of Australia concerning the validity of certain legislative amendments. The dispute centred on the constitutional validity of amendments to the *Native Title Act 1993* (Cth) that were enacted in response to the High Court's decision in *Western Australia v Brown*. The applicants challenged these amendments, arguing they were beyond the legislative power of the Commonwealth Parliament.

The High Court was required to determine whether the amendments to the *Native Title Act 1993* (Cth) were constitutionally valid, specifically whether they infringed upon the implied constitutional prohibition against the Commonwealth acquiring property on unjust terms, as established by section 51(xxxi) of the *Constitution*. A further issue was whether the amendments impermissibly impaired the legislative power of the States.

The Court held that the amendments were constitutionally valid. It reasoned that the amendments did not involve the acquisition of property by the Commonwealth. Instead, they altered the statutory framework for the determination of native title rights and interests, including the extinguishment of certain native title rights in favour of mining leases. The Court applied the principle that legislative changes to the operation of a statute, even if they affect existing rights, do not constitute an acquisition of property unless the Commonwealth itself takes possession or control of that property. The Court also found no impairment of State legislative power.

The High Court dismissed the applicants' application.

Orders