Mineralogy Pty Ltd & Anor v State of Western Australia; Palmer v The State of Western Australia - [2021] HCATrans 107

[2021] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B54 of 2020

B e t w e e n -
MINERALOGY PTY LTD (ACN 010 582 680)
First Plaintiff
INTERNATIONAL MINERALS PTY LTD (ACN 058 341 638)
Second Plaintiff
and
STATE OF WESTERN AUSTRALIA
Defendant

Office of the Registry
Brisbane No B52 of 2020

B e t w e e n -
CLIVE FREDERICK PALMER
Plaintiff
and
THE STATE OF WESTERN AUSTRALIA
Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 JUNE 2021, AT 10.00 AM

(Continued from 16/6/21)

____________________

KIEFEL CJ: Yes, Mr Solicitor. I am afraid that for most of us your note on resolution of issues did not quite reach us before we left the Court, so you might need to take us through it.

MR THOMSON: I certainly will. I apologise if that is the case. It represents a little bit of complexity, but I wonder if I might, if it is convenient for the Court, finish what I was saying about State agreements and then come directly to that. Is that a convenient course?

KIEFEL CJ: Yes, thank you, Mr Solicitor.

MR THOMSON: Thank you. In relation to State agreements, I think I said yesterday that I would take the Court to a couple of passages in Sankey v Whitlam in order to just demonstrate a distinction which I drew yesterday between different types of primary category of case – that is, the category of case which has a covering Act on the agreement that says “as if enacted” and the other type where it is along the lines that it has used in our covering Act in this case.

If I can take you to Sankey v Whitlam, which is in that joint book of authorities in volume 15, tab 105, the distinction that I have mentioned was drawn in respect of considering a financial agreement which was made under the Financial Agreement Act 1927, a Commonwealth Act. If I can take you first to the judgment of the Acting Chief Justice at page 29 or 6178 of the joint book of authorities and starting about five lines down that page he says:

Where a law of the Commonwealth does no more than approve of or validate an agreement, the purpose of breaking that agreement could not be said to be “unlawful under a law of the Commonwealth”.

So, he is drawing out the point that the agreement is not unlawful – sorry, is not statutory where the covering Act simply talks of approving or validating an agreement. Can I take you then to the judgment of his Honour Justice Stephen at page 6226 and page 77 of the reports. Starting at the first main paragraph, his Honour said:

The Act of 1929, which validated the Agreement following the amendment of the Constitution, was passed…

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.

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Details

AGLC: Mineralogy Pty Ltd & Anor v State of Western Australia; Palmer v The State of Western Australia [2021] HCATrans 107
Case: [2021] HCATrans 107
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from the Supreme Court of Western Australia in proceedings brought by Mineralogy Pty Ltd and Mr Clive Palmer against the State of Western Australia. The dispute concerned the validity of certain legislative amendments made by the State of Western Australia that purported to extinguish or diminish rights held by Mineralogy under a State Agreement.

The central legal issues before the High Court were whether the *Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2012* (WA) and the *State Agreements Act 2012* (WA) were invalid by reason of contravening section 109 of the *Constitution* (Cth) due to inconsistency with the *Native Title Act 1993* (Cth), and whether the amendments were invalid on other grounds, including that they were beyond the legislative power of the Western Australian Parliament.

The High Court held that the amendments were invalid. A majority of the Court found that the amendments were inconsistent with the *Native Title Act 1993* (Cth) and therefore invalid under section 109 of the *Constitution*. The Court reasoned that the amendments, by seeking to extinguish or diminish native title rights and interests without the procedural protections afforded by the *Native Title Act*, directly conflicted with the operation of the Commonwealth legislation. The Court also considered arguments relating to the legislative power of the State, but the section 109 inconsistency was determinative.

The High Court allowed the appeals and declared the impugned legislative amendments invalid.

Orders