Mineralogy Pty Ltd & Anor v State of Western Australia; Palmer v The State of Western Australia
[2021] HCATrans 106
[2021] HCATrans 106
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 WEDNESDAY, 16 JUNE 2021, AT 10.05 AM
(Continued from 15/6/21)
Copyright in the High Court of Australia
____________________
KIEFEL CJ: Yes, Mr Jackson. I see you have a fair bit of ground to cover before lunchtime.
MR JACKSON: Your Honour, I appreciate that. Your Honours, may I deal first with three matters arising from yesterday. One is that your Honours will see that the agreement is a schedule to the Act, and you will see that it is made a schedule by section 3, I think. The second thing I would say in relation to that is that if one goes to the Interpretation Act (WA) – and we have given your Honours a copy of that in the supplementary volume of material; it is the first document in that – what your Honours will see is that section 31(2) says that a schedule to a written law “forms part of the written law”. “Written law” is defined by section 5 of the Act to mean, as one might expect, all Acts, et cetera.
The term “Act” is also defined in the definition section in the manner in which one might expect to refer to the statutes. Your Honours, could I also say that if one goes to section 28 of the Interpretation Act that:
Every Act . . . shall be deemed to be a public Act unless the contrary is expressly provided in the Act and shall be judicially noticed as such.
So, the effect of section 31(2) is that a schedule to a written law forms part of the written law. That is the first thing I wanted to mention, your Honours. That is a provision which, in similar terms or perhaps somewhat equivalent terms, is in some but not all Interpretation Acts of the various polities in Australia.
The second matter I wanted to mention is this. A question was asked by your Honour Justice Gageler concerning the identity of the Minister in terms of the definition of “government agreement” in section 2. We had pointed I think in submissions, paragraph 93, to the fact that there are very many references to the Minister and the agreement, et cetera – it needs to be someone to make it workable.
I also said, I think, your Honours, that I did not think it was in issue that the Act was applicable. Your Honours, we have discussed this with our learned friends, and we agree, not surprisingly, the appointment of an appropriate Minister was notified. We can provide your Honours with copies of the relevant Government Gazette. It is the one of 30 June 2003, page 2647, and records the Minister for State Development as being the relevant Minister.
The third matter I wanted to deal with concerned a question your Honour Justice Gleeson asked yesterday about section 5 of the agreement, of the Act, and the reference in it to clause 27. Now, your Honours, the enthusiasm, if I can put it that way, for particular reference to clause 27 seems to be – and, your Honour, I do not use the word in any adverse sense, a peculiarity of Western Australian legislation.
Even in the case where the Act providing for the State agreement contains a provision stating specifically that the agreement has the effect as if enacted in the Act itself, there still are found provisions equivalent to section 5. I do not think I need to take your Honours to them, but could I give your Honours one reference? You will see in the legislation referred to in our learned friend’s submissions in B52, paragraph 94(a) - and the relevant section there is section 9 of the legislation, if I could give it a short version, the “McCamey’s Monster” legislation. Your Honours, there may be various reasons of good politics why one has specific reference to it.
Your Honours, in our submission, the observations of members of the Court in earlier cases suggest that the agreement should be regarded as a law made by the Parliament. Could I give your Honours two references? One is Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 353. Your Honours will see that in materials volume 9, tab 75, page 3820.
Your Honours will see first of all in paragraphs 9 to 10 in the reasons for judgment of Chief Justice Brennan and Justice McHugh a reference to “indirect express amendment”, “effects a partial repeal”, albeit the text of the Act is unchanged. Your Honours will see - I will not read out the quotation of course - after the quotation the last paragraph of paragraph 10 on page – sorry, after the last paragraph:
In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed.
That is elaborated upon, your Honours, in the next paragraph. Your Honours, could I also refer to paragraphs 66 to 68 in the same reasons for judgment, Justices Gummow and Hayne, and you will see particularly at paragraph 67:
to amend a statute “is to alter its legal meaning”, in particular its territorial, temporal or personal dimension.
Your Honours will see that their Honours elaborate upon that and go on to paragraph 68. Could we refer also, your Honours, to what was said in Duncan v Independent Commission Against Corruption (2015) 256 CLR 83. It is volume 8, tab 63. The page numbered in the book of authorities is page 3118, paragraph 12, where your Honours will see that four Justices said:
In this way, cll 34 and 35 operate to amend s 8(2) . . . ‑ ‑ ‑well settled that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as “an amending statute”.
Your Honours, may I go to one aspect of our learned friend’s submissions on this issue, which is to be found in their submissions in B52, paragraph 94(a). Your Honours, there the State speaking of section 4(3) says that the provision:
does not invest the State Agreement with statutory force; rather –
and somewhat metaphorically perhaps, says:
it clears any legislative obstacle out of the path of the Agreement taking effect.
The obstacles being spoken of, your Honours, are not snow or a fallen tree or bush, they are legislation. To get rid of them – to push them out of the way, as it were, one needs, in our submission, legislation. That is what section 4(3) does and what section 3(b) of the Government Agreements Act does in very specific terms. Your Honours, section 3(b) says it modifies Acts to the contrary.
Your Honours, to put it shortly, in our submission, the agreement has the characteristics of, in terms of section 6 of the Australia Act, a law made by the Parliament. Could I come, your Honours, to ‑ ‑ ‑
KEANE J: But yet, section 4 of the 2002 Act and section 3 of the Government Agreements Act do not – so, why would not one read the 2020 Act insofar as it effects an alteration in the operation of the law? Why would not one read by reference to the authorities you have just given us as indicating an amendment of section 4 of the 2002 Act and section 3 of the Government Agreements Act in terms of their operation?
MR JACKSON: May I say two things about that. The first, your Honour, is that if one looks at the 2020 Act, it does not amend or purport to amend in terms section 4(3). Nor does it ‑ ‑ ‑
KEANE J: The cases that you have just taken us to show it does not have to.
MR JACKSON: With respect, may I come to that, your Honour. What I just wanted to say was that if one looks first of all at the terms of the 2020 Act, you will see that it leaves untouched the provisions of sections 4(3), 6(3) and also the provision that says that the Government Agreements Act continued in operation. It does not touch those at all.
So, if one is looking as a matter of construction of the 2020 Act, it is not purporting to affect those provisions except to the extent that those provisions may have an operation in relation to the subject matter of the agreement. It seeks to amend the agreement. But, your Honour, one does have to bear in mind that the terms of clause 32 of the agreement are as much entrenched, in our submission, as any other part of the agreement. One has to go through the method of clause 32 to amend, for example, ultimately clause 32 itself.
Your Honours, I was going to say, reliance has been placed by the defendant and by some interveners on earlier decisions of State courts dealing with agreements which have received statutory approval. Your Honours, in our written submissions at paragraphs 103 to 107 we discuss Re Michael; Ex parte WMC Resources Ltd which is, if I can just give the shorter reference, 27 WAR 574. It is tab 151 in volume 21, a decision of the Full Court per Justice Parker with Justices Templeman and Miller agreeing.
It considered provisions similar to those of the 2020 Amending Act and your Honours can see them referred to – I think I should have said the 2002 Act – your Honours will see the provisions referred to at paragraph 20 at page 574. At paragraph 21, your Honours will see that Justice Parker took the view that the statutory expression takes effect despite any other Act or law, and did not give the agreement there in question the force of law but rather was to show that, as he put it:
the general body of law in the State was not to stand in the way of the implementation of the agreement.
You will see that in the last eight or nine lines of paragraph 21. After referring at paragraphs 22 to 25 to passages from Sankey v Whitlam, he went on to say if I could take your Honours to paragraph 26, first of all, that while:
the terms of the State Agreement remain contractual –
I am sorry, I will start again, he said that while section 4(3) of the agreement had the effect that the provisions of the State agreement have the force of law or create statutory duties and obligations, at 26 also he said that the terms of the agreement:
remain contractual terms with force and effect as a contract.
Pausing at that point, it is very difficult to see how that fits in with section 31(2) of the Interpretation Act to which I took the Court this morning. It seems to be quite contrary to it:
As such it is binding on the parties to the contract and not on others.
Your Honours will, to the same effect, see paragraph 30. Your Honours, in our submission, there are significant difficulties in adopting his Honour’s constructions. We refer to them in our written submissions at paragraph 105. If the provisions are to take effect despite any other Act or law, it must have effect in changing, in amending the other Act or law. That is so because the assumption underlying the phrase is that the other Act or law would operate were it not for the words in question.
KIEFEL CJ: Mr Jackson, is the claim for damages which was the subject of the third arbitration which was not concluded, a claim for damages under the agreement which is the subject of the 2002 Act?
MR JACKSON: Yes.
KIEFEL CJ: Or was it a claim for damages for breach of the arbitration agreement itself?
MR JACKSON: A claim for damages for breach of clauses 6 and 7, I think, your Honour.
KIEFEL CJ: I think it was the State agreement.
MR JACKSON: Yes, your Honour, the claim for damages for breach of the agreement.
KIEFEL CJ: So it was a claim for damages for breach of contract.
MR JACKSON: Yes. I can give your Honour such details as appear in the statement of claim – as appear in the pleading in the special case, but it was a claim for damages and the ‑ ‑ ‑
KIEFEL CJ: So the rights under the contract survived the enactment of the agreement as a statute. Is that what you say?
MR JACKSON: No, your Honour. That is the whole point of it, one of the points, because the provisions of the 2020 statute, which we are attacking, bring to an end the previous awards and they bring to an end the arbitration agreement that was to ‑ ‑ ‑
KIEFEL CJ: The 2020 Act assumes that it is dealing with contractual rights.
MR JACKSON: Yes.
KIEFEL CJ: But that is a premise you say is wrong.
MR JACKSON: No, your Honour. May I put it this way, your Honour. The 2020 Act deals with contractual rights. There is no doubt about that. It also eliminates them and provides various other matters to which I have referred, but having said that, it seeks to do so in a manner which is not, in our submission, permitted pursuant to clause 32 and ultimately section 6.
Your Honours, reverting back to Justice Parker’s judgment, as we have said in our written submissions, paragraph 106, the notion that the terms of the agreement would have no binding legal force on those not party to it is, with respect, just not correct.
We have given two examples in paragraph 106. Could I give your Honours very briefly some other examples. First of all, clause 21(3), at page 187 of the special case book, regarding the use by third parties of wharf and port installations, wharf machinery and equipment and wharf and port services, et cetera; clause 22(4) regarding the carriage of iron ore products of third parties via the railway, and clause 40 at page 204 regarding the rights of the third parties to the agreement to carry out activities authorised under the agreement.
GAGELER J: So you say third parties would have the ability to enforce those rights?
MR JACKSON: I am sorry, your Honour, it is very difficult to hear with the distances here.
GAGELER J: Your case is that third parties would have the ability to enforce those rights as statutory rights?
MR JACKSON: Yes, your Honour. Yes, of course. Your Honours, I will not take your Honours to paragraph 107 where we have already referred to section 3(b) of the Government Agreements Act. Could I just say this, your Honours, if I may say so, with respect to Justice Parker, a very distinguished West Australian. The approach taken by his Honour does not involve a course of reasoning; it is simply a choice of view which he has taken. The notion relied on by his Honour at paragraphs 45 to 46, that Parliament cannot bind itself not to legislate in particular ways, may be true enough.
But as Justice Gaudron observed in the passage from Kartinyeri to which we have referred in our written submissions in footnote 103, that is subject to any validly enacted applicable manner and form requirement. Nor, in our submission, your Honours, do the other Western Australian decisions advance the matter.
May I refer in that regard, your Honour, and I do not intend to go to them one by one, but may I refer particularly to those that have been referred to ‑ Hancock Prospecting v BHP Minerals [2003] WASCA 259, paragraphs 66 to 67; an earlier Mineralogy case, Mineralogy Pty Ltd v Western Australia [2004] WASC 275 at paragraph 13; Kidd v Western Australia [2014] WASC 99 at paragraphs 111 to 112, and Commissioner of State Revenue v Oz Minerals (2013) 46 WAR 156 at paragraphs 179 to 183.
Your Honours, the position, in our submission, is not advanced by any cases in other courts relied on by the State or by interveners. Firstly, the decision of the Full Court of the Federal Court in Western Australia v Graham (2016) 242 FCR 231. Your Honours will see that ‑ if your Honours want to look at it, it is volume 23, tab 156, page 9257. The relevant passages are at page 239, paragraph 38, and 240, paragraphs 40 to 41. In our submission, they add nothing to the reasoning.
Secondly, the three strands of reasoning in the Comalco Case, Commonwealth Aluminium Corporationv Attorney‑General for Queensland [1976] Qd R 231, tab 126, page 7764, do not in the end advance the matter. Your Honours will see that referred to in paragraph 108, the Full Court must have been misled by the argument of junior counsel for Queensland, I think.
Your Honours, the question then is, is clause 32, relevantly speaking, the only method of alteration to the terms of the agreement. Your Honours, the first thing we would say about it is that clause 32 is, if I could use again perhaps slightly dated language, a provision reflecting double entrenchment. On the one hand, it is a requirement that future laws must comply with the manner and form required by it and, on the other hand, future laws repealing the manner and form provision itself must follow its procedure. Your Honours will recall that the terms of clause 32 apply to any of the provisions of the agreement…..phrase which includes clause 32 itself.
Your Honours, the next feature is whether the operation of clause 32 can simply be defeated or got around or avoided by enactment of a statutory provision to the contrary. That involves, your Honours, with respect, two aspects. One is a question of statutory construction, the other the effect of the Australia Act.
The question of statutory construction arises in the sense because, if I could put it in a sense at the highest for the other side, the agreement does not express the negative. It does not say in terms, we accept, that the agreement may only be amended by the procedure in clause 32. But the question whether that is the effect of clause 32 is to be determined by the provisions of the agreement as a whole.
Could I, in that regard - your Honours, I do not think I need to take your Honours to the passage but may I give your Honours a reference to the observations of four members of the Court, Chief Justice Dixon and Justices McTiernan, Taylor and Windeyer in Clayton v Heffron (1960) 105 CLR 214 at 246, that is volume 7, tab 56, where it was said that one has to look at the whole of the provisions and consider them together to determine what is the relevant effect.
In that regard, your Honours, the terms of the agreement recognise that its operation may be affected in some but limited ways by a statutory change. Your Honours will see in clause 2(f) references to various – where it is said that references to various enactments includes references to their amendments. You will see that clause 21(1) speaks of development of port facilities, with clause 21(2) requiring:
All shiploading and shipping facilities shall be subject to and shall be constructed, operated and maintained in accordance with relevant legislation.
That must mean in accordance with relevant legislation from time to time. To similar effect, is clause 22(3) in relation to railways and could I refer also to clause 22(6)(c). We have given other examples but to put it shortly what we are seeking to say, your Honours, in that regard, is that when an amendment by a statute is contemplated, the agreement actually says so.
Your Honours, also could we say the breadth of the force majeure clause in clause 33(2) is also relevant. The specific provision for when a party may be discharged from its obligations suggests that there was no contemplation that the legislative power to amend the agreement, other than in conformity with clause 32, could be exercised in a way that amended the agreement and discharged the obligations of the State.
Could we refer your Honours to the specific power conferred on the Minister to vary dates given by clause 34, which is expressly conferred notwithstanding any provision of the agreement. That too supports the view that the power to vary in clause 32 was otherwise intended to be exclusive.
It is necessary, as the passage from Clayton v Heffron to which I referred a moment ago says, to have regard to the nature of the power conferred, the consequences which flow from its exercise and the purpose of the procedure prescribed, those factors, in our submission, favour construing clause 32 as a mandatory manner and form agreement.
If I can give one specific example. If the Minister’s power in section 31 of the 2020 Act to make orders, to which I will come a little later, is valid, the very specific power to vary dates in the agreement in clause 34 would serve very little purpose.
Your Honours, could I say that the other point we would make in this context is that section 6 of the Australia Act actually requires it. The opening words of section 6 make very clear indeed that a State’s legislative power is now subject to section 6 and compliance with section 6 is a mandatory constitutional requirement for the exercise of State legislative powers and should not be regarded as a triviality or a technicality or, as it is so elegantly put by our learned friends in paragraph 5 of their submissions, a procedural‑type matter. Your Honours, I have spent some time on that. May I move on?
EDELMAN J: Mr Jackson, before you move on, I have a brief question. The 2002 Act was amended in 2008, was it not?
MR JACKSON: Yes.
EDELMAN J: Those amendments in 2008 were against the background of the Full Court decision in Re Michael.
MR JACKSON: Well, Re Michael was there, your Honour. What part it played in particular aspects I could not say, your Honour.
EDELMAN J: Is not the ultimate question as to the meaning of clauses like clause 4 a question of statutory intention or parliamentary intention, and that parliamentary intention needs to be understood against the background of judicial decisions that preceded it?
MR JACKSON: Yes.
EDELMAN J: So, at least insofar as the amending provisions or the variations in 2008 are concerned – those variations need to be understood in light of the decision in Re Michael.
MR JACKSON: Well, your Honour, what one sees in the 2008 amendments is that the procedure that was gone through was the procedure of clause 32 and then there was an enactment brought in – now, your Honour, it may have been necessary, it may have been unnecessary – but that was the course that was adopted. But, your Honour, that does not – when your Honour says “against the background of Re Michael”, it is a question of course of being safe doing things this way, avoiding problems, but it does not operate, in our submission, as an endorsement of Re Michael and it is difficult to see, with respect, how one could endorse a decision which, we would submit – as I have said before, with respect – is wrong and itself gives no regard to section 31(2) of the Interpretation Act.
Could I come then, your Honours, to another topic. The topic, your Honour, relates to State legislative power. It derives, in the first place, from section 107 of the Constitution and section 2(1) of the Australia Act declares that each State’s legislative powers include full powers to make law that have extraterritorial operation.
State legislative power, of course, unlike Commonwealth legislative power, is not limited to a list of possible subject matters, although there are areas where it has no legislative power, for example, sections 52, 90, 115 to 117, and otherwise valid to say legislation cannot operate during inconsistency with valid Commonwealth legislation, section 109.
Your Honours, those are preliminaries, of course. But as section 5 of the Australia Act itself makes clear, as do sections 106 to 108 of the Constitution itself, the legislative power of the State is exercisable subject to the Constitution and subject to the implications to be drawn from it, and the implications which, in our submission, are reflections of the values inherent in it. Views will differ about them, views will differ - in the judgment given this morning about the application of the implied freedom of communication, but there are implications to be drawn from the Constitution.
Now, your Honours, it is clear, of course, that a phrase “peace, order and good government” as used in section 2(1) of the Australia Act, gives a legislative power which is broad. That was referred to in the Union Steamship Co of Australia v King 166 CLR 1 at 10. It is volume 17, tab 112. What your Honours will see is that, as the last seven or eight lines of the main paragraph on that page indicate, there may be a question:
Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law -
There are several aspects with which we wish to deal on this aspect, which we discuss in our written submissions at paragraph 50 - your Honour, the first matter is the rather narrower issue – paragraphs 50 to 68 – which concerns incompatibility of the legislation in question with the institutional integrity of State courts. Then there is the rather broader question, namely application of the observations in Union Steamships v King. May I deal with them in that order.
Your Honours, in that regard may I commence by reference to observations of the Court in Knight v Victoria 261 CLR 306 at 317. That is in volume 10, tab 78, page 4044. The Court – it said that two discrete arguments were advanced. Each seeks in a different way to invoke the principle associated with Kable, which the Court there described as being a law:
which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction ‑ ‑ ‑
under Chapter III:
is constitutionally invalid.
Now, your Honours, that is, if I may say so, with respect, a development in Australian constitutional law as occurs from time to time with the passage of time. Constitutional law, of course, is not embalmed. One comes then to the observations on a similar topic of four Justices in Kuczborski v Queensland 254 CLR 51 at 98, volume 10, tab 79, page 4102. I want to refer your Honours to paragraphs 139 and 140.
We have referred in our written submissions in paragraph 52 to paragraph 140 of Kuczborski, but one should look too at paragraph 139, citing the earlier decision of Emmerson, where your Honours will see in paragraph 139 a summary of the Kable principle by six members of the Court and the principle is, if I can go to the fourth line:
State legislation which purports to confer upon such a court power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
Then, your Honours, in paragraph 140 it said:
Decisions of this Court establish that the institutional integrity of a court is taken to be impaired by legislation which enlists the court in the implementation or the legislative or executive policies of the relevant State or Territory, or which requires the court do depart, to a significant degree, from the processes which characterise the exercise of judicial power.
Now, your Honours, could I refer also to two further passages from Kuczborski - at paragraph 226, where there is a reference, your Honours, to the processes which characterise the judicial function usefully, but not exhaustively summarised and your Honours will see:
“open and public inquiry . . . the application of the rules of natural justice, the ascertainment of the facts . . . and the identification of the applicable law –
and so on. Then, your Honours, paragraph 228 – your Honours, I will not read it out, but may I refer your Honours to it. Your Honours, in our written submissions in paragraphs 53 and 54, we have referred to two decisions in which laws were invalidated on this basis: South Australia v Totani, and International Finance Trust v New South Wales Crime Commission.
Your Honour, each case, of course, turns on its own circumstances; and your Honours will see that referred to in our written submissions at paragraphs 50 and 51. But we deal with this case, your Honours, first in our submissions at paragraphs 55 to 58 and we seek there to make the following points.
The first is that the 2020 Act targets a single party, Mr Palmer, directly and through companies that he controls, for adverse treatment, and directs the precise disposition of pending and potential civil claims – if you look at section 9(1) of the Act, for example. The enlistment of the courts and dictation to them is, in our submission, at the heart of the legislation.
It occurs in multiple respects, if one looks at section 10(5) or section 10(6). As we seek to say more generally at paragraph 56 of our submissions, the provisions of the 2020 Act purport to eliminate the ability of the courts independently or impartially to adjudicate a dispute – and I have referred already, your Honours, to sections 8 to 11, which dictate the answers to questions which are quintessentially, in our submission, judicial.
GAGELER J: Mr Jackson, you chose section 9(1) as an example. If we look at that, what is it about section 9(1) that infringes the Kable principle?
MR JACKSON: I did not hear the last word of your Honour’s question to me, I am sorry.
GAGELER J: The word was “principle”.
MR JACKSON: Your Honour, what I was seeking to say about section 9(1) is that it is a provision that is saying to anybody that has to decide the issue that the two proposals have no contractual effect.
GAGELER J: In other words, it is a provision that changes legal rights.
MR JACKSON: It certainly has a dramatic effect to that but it is not just that, your Honour. It is saying, if this issue arises, it cannot succeed. Now, undoubtedly your Honour, that does effect a change in legal rights but the manner in which it does so is by saying to courts, “If this issue arises, it has to be decided in this and only in this way”.
KIEFEL CJ: But the effect of section 9(1) would be that the issue does not arise for the Court. There is no question for the Court to answer. As Justice Gageler points out, it deals with rights, it takes them away, there is nothing for the Court to deal with.
MR JACKSON: Your Honour, the point about it, with respect, however is that, if one seeks to claim relief which otherwise would fall within section 9(1), the Court is obliged to take the course which your Honour has referred to and that is to dispose of the matter because the Court is directed to do so by, in effect, section 9.
EDELMAN J: Mr Jackson, if section 9(1) had instead provided that any of the plaintiff rights arising from the first Balmoral South proposal or the second Balmoral South proposal are hereby extinguished, would there be any Kable argument that could arise then?
MR JACKSON: I reckon it does say that, your Honour, but in our submission yes, it does.
EDELMAN J: So the mere extinguishment of rights or acquisition of property by legislation would give rise to a Kable difficulty?
MR JACKSON: Your Honour, it is capable of doing so. I use that qualified expression because one accepts that it has been established in a number of cases that a State may acquire property compulsorily without the obligation to pay just terms, for example, without the just terms obligation that one would find in 51(xxxi) of the Constitution. But at the same time it becomes a question of looking at the whole of the legislation and this is part of it, your Honour, this is the ‑ ‑ ‑
GORDON J: Rather than looking at the whole, can we just go back to 9(1) for a moment. There are a number of cases in this Court which have held legislation valid where it attaches a new legal status or a new legal consequence to an historical fact, why is that not this type of provision, section 9(1) doing exactly that? I mean, in a sense, it is not dissimilar to the provision which was held valid in Duncan v ICAC that you took us to, at paragraph 25.
MR JACKSON: Well, your Honour, what we would say is that if one looks at section 9(1) together with the other provisions of the Act, what it is doing is directing how ‑ and it is dealing with this part of the argument for the moment ‑ directing how courts must deal with it and directing how courts must deal with it without there being any opportunity for the court itself to formulate a view on the issue because to do so is proscribed. Now, your Honour ‑ and the manner in which any matter coming before the court is to be dealt with ‑ ‑ ‑
GORDON J: The problem with that, Mr Jackson, is that in paragraph 26 of Duncan, the Court goes on to say that it is:
well‑settled that a statute which alters substantive rights does not involve an interference with judicial power –
or, in effect, a Kable argument, contrary to Chapter III, even if those rights are in issue in pending litigation.
MR JACKSON: Your Honour, we are not challenging Duncan as such but, I think, your Honour, in a passage to which your Honour is referring, there is a recognition perhaps a little further up the paragraph, perhaps I have mixed up the two Duncan cases, but the Kable principle is capable of applying.
GORDON J: Well, the contrast they draw, of course, is the legislation in Bachrach where it did fall foul of Kable.
MR JACKSON: Your Honour, in Bachrach, if one goes to it, one sees that the members of the Court in Bachrach were saying that the legislation was not directed ‑ I mean, in fact, it was, of course, but it was not directed in terms to the particular case. This is a much more specific case than that.
EDELMAN J: Mr Jackson, does your submission ultimately come down to the fact that section 9 is not merely a section that is concerned with extinguishing rights or altering legal statuses but it is one which is concerned to do that in a particular way and a particular way is by directing courts as to what to do rather than implementing that effect itself?
MR JACKSON: Yes, your Honour.
EDELMAN J: How does that submission then fit with section 11 because section 11 is effectively a “no liability” provision, why would not section 9 be read effectively as a “no rights” provision? In other words, it is a cumbersome way of extinguishing rights rather than a direction to courts as to the way courts need to deal with the issues.
MR JACKSON: Well, your Honour, provisions, of course – to use a phrase which I think I used yesterday – can have dual or multiple characterisations. In one sense, section 9 has the operation to which your Honour just referred; in another sense, it has the operation to which we are referring and that is as a direction to courts. Your Honours, could I - - -
STEWARD J: Just before you go on, Mr Jackson, do I take it that your case is that we actually should not be asking the question, is section 9(1) invalid, or is section 10(4) invalid. Your case is, please look at the thing in aggregate and ask the question in aggregate, is this an intrusion into the judicial power that infringes Kable?
MR JACKSON: Yes.
STEWARD J: Is that not your case?
MR JACKSON: Yes, it is, your Honour. I am going to come to that a little more fully in just a few moments. But your Honours will see that we have endeavoured to summarise, I think in paragraphs 75 and 77 of our written submissions, the argument which we would advance in relation to, if I can put it, the qualification in the Union Steamship v King. But may I come to that in just a moment ‑ ‑ ‑
STEWARD J: When you get to it at the right moment, you will then need to deal with the proposition, that is the question to be asked, is it better asked in one of the extant proceedings, or new proceedings, as the case may be?
MR JACKSON: Yes, I will, your Honour.
STEWARD J: Thank you for that.
MR JACKSON: Your Honour, just coming back to what your Honour Justice Gordon was putting to me, in the passage in Duncan v ICAC to which your Honour was referring, which I think is paragraphs 27 and 28 of that judgment, in our submission, the terms of the Act cannot really be characterised satisfactorily as simply a retrospective alteration of the substantive law to be applied by courts in accordance with their ordinary processes, to use a passage in Duncan.
Could I go then, your Honours, to the matters that are set out in our written submissions in paragraphs 57 and 58 and, your Honours, if I could take your Honours briefly to paragraphs 57 and 58 of our written submissions. I do not intend to read them out, but may I direct your Honours’ attention to what we have put there.
Could I move then, your Honours, to the next aspect of the issue and that is one with which we deal at paragraphs 59 to 68. We advance the contention, first of all, at the higher level that the Parliament of the State is precluded from exercising judicial power. Your Honours, may I say immediately I leave aside matters relating to its own discipline and privileges of course, but at the more specific level that the 2020 Act should be regarded as an attempted exercise of judicial power.
We deal, your Honours, with the broader aspect of the issues in paragraphs 60 to 65 and we seek to make, to put it shortly, these points. First of all in paragraph 61, a necessary aspect of the integrated judicial system referred to in Kable and in Rizeq is that an exercise of judicial power in a State must be amenable to the supervision of the Supreme Court.
We elaborate upon that in paragraph 61, but importantly, as we submit in the last sentence of paragraph 61 and also in paragraph 62 that if, as is said in Kirk in the passaged quoted at footnote 48, the State Supreme Courts are the mechanism for enforcement of the limits on the exercise of State executive and judicial powers, how in any realistic sense could that work by enforcing the limits on the exercise of judicial power by Parliament? Parliament is the body seeking to do so. We seek to elaborate upon those propositions in paragraphs 63 to 65.
Could I come then to the particular case and I am referring now to paragraph 66 of our written submissions. The joint reasons of the seven members of the Court in Duncan v New South Wales (2015) 255 CLR 388 at 408, in paragraph 42, volume 8, tab 64, described the typical features of an exercise of judicial power. Your Honours will see in paragraph 42 that it is said in the first sentence:
the Amendment Act exhibits none of the typical features of an exercise of judicial power.
The typical features are then identified:
It quells no controversy between parties. It precludes no future determination by a court of past criminal or civil liability. It does not determine the existence of any right that has accrued or any liability that has been incurred. Save for the limited immunity it confers on the State and its current or former employees, it does not otherwise affect any accrued right or existing liability.
Your Honours, if one seeks to apply those concepts to the 2020 Act and asks the same questions, does it quell a controversy? Well, your Honours, could we refer to sections 10(1) and 11(1). Does it preclude future determination by a court of past criminal or civil liability? Could we refer to sections 11(1), 20(1) and 20(10). Does it determine the existence of any right that has been accrued, or any liability that has been incurred? And could we refer to sections 9(1), 10(1), 19(1) and 27.
The fourth question, does it otherwise affect any accrued right or existing liability? And could we refer again to section 27. And, your Honours, we would submit that, as we say at paragraph 68 in our submissions ‑ as we submit at paragraph 68, the Act is quintessentially an exercise of a power which is judicial. Your Honours, may I move from that ‑ ‑ ‑
KEANE J: Mr Jackson, just before you do.
MR JACKSON: I am sorry, your Honour.
KEANE J: Do it take it that last submission you are making, you do not accept that there is a difference between the notion of quelling a controversy and obviating the occasion for a controversy?
MR JACKSON: Your Honour, it is very difficult to hear some of this. The difference between obviating and – I did not quite catch ‑ ‑ ‑
KEANE J: The difference – does your submission depend on the contention that there is no difference between quelling a controversy and obviating the occasion for a controversy?
MR JACKSON: Well, it may vary from case to case, your Honour. It depends how it is done. It is sought to be done in a number of ways here. The sometimes unsightly look of belt and braces has been used.
GLEESON J: What is the particular controversy here? How would you define the relevant controversy here?
MR JACKSON: Well, the controversy here, your Honour, I suppose is one that exists because we seek to obtain damages for breaches of a contract that we have with the State. The breaches have been found to exist; the claim is being made for damages in consequence of the breach. We may be entitled to $10 nominal damages. We may be entitled to much larger sums which seem to have been bruited about.
That is the controversy, your Honour. We have a contract. We are prepared to perform it. It has been breached, broken by the State on two occasions, and independently found to be the case. And then not only are we put in a position where our attempt to have an independent determination of the matter, as contemplated by our agreement, but also we are put into a situation of having to pay not just all the costs, but losses and liabilities brought about that the State might suffer because they breached their contract with us.
GORDON J: Could I ask a specific question about sections 9 and 10 and those provisions you identified? As you know, there has been a distinction drawn in the authorities between interferences with the judicial process itself rather than being the substantive rights at issue in the proceeding when looking at these sorts of sections. Do you contend that sections 9 and 10 actually interfere with the judicial process itself rather than the substantive rights which are at issue?
MR JACKSON: Well, they – section ‑ ‑ ‑
GORDON J: I am dealing just with 9 and 10 for the moment, Mr Jackson.
MR JACKSON: Your Honour, dealing first with section 9, your Honour will see that section 9(1) and section 9(2) purport to state what legal effect is to be given to the various matters there referred to. Now, your Honour, that must be an interference with any proceedings in which we seek to enforce the terms of the agreement – any proceedings whether they are taken in a court or elsewhere but so far as courts are concerned, they are proceedings which affect the result by telling the court what to do.
If one goes to section 10, if one seeks to rely on the terms of – if one seeks to rely upon the award, for example, referred to in 10(4) or the award referred to in 10(6) and to claim in any fashion based upon it then a judgment based upon it must be one that is a court dealing with that question is directed to find against us.
Your Honours, may I move then to the question of the contravention of the rule of law and what are the unwritten principles of the Constitution? This is the area with which we deal in our written submissions in paragraphs 69 to 77 and 28 to 30 of the reply. Could I go first to our written submissions at paragraphs 69 to 70 where we have referred to the observation of Sir Owen Dixon in the Communist Party Case that the rule of law forms an assumption of the Constitution.
At paragraph 70 we have referred to the reasons of Chief Justice Gleeson and Justice Heydon in the APLA v Legal Services Commissioner that the rule of law is an assumption upon which the Constitution depends for its efficacy and that is a passage which is referred to in later cases, as we refer to in footnote 64, and it could be referred to the references to Kartinyeri and to Momcilovic in paragraphs 65 and 66.
But moving on from that, your Honours, we seek to make the point set out in our submissions in paragraphs 71 to 73 that whilst one cannot identify in advance the outer limits of what obedience to the rule of law may involve, it is possible to identify cases where it has not been complied with in the exercise of State legislative power. We mentioned particularly your Honours, if I could go, for a moment, to paragraph 71 of our submissions ‑ ‑ ‑
KIEFEL CJ: That might be a convenient time for the Court adjournment, Mr Jackson.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honour. Your Honours, I was about to refer the Court to paragraph 71 of our written submissions dealing with the topic of the contravention of the rule of law and written principles. Your Honours, in paragraphs 71 to 73 of our submissions we seek to make the point that whilst one cannot identify in advance the outer limits of what obedience to the rule of law may require, it is possible to identify some aspects where it has not been complied with in the exercise of State legislative power. We mention particularly, your Honours, paragraph 71, the “access to impartial courts”, in paragraphs 72 and 73 the ability to assert and “vindicate” rights under the law.
We quote in paragraph 73 Justice Hayne post‑judicially, setting out three relevant features in the passage that we have there quoted. Could we say in summary that if one seeks to apply those approaches to the 2020 Act, it does not comply with any of them. Could I take your Honours particularly to the matters we have identified in paragraph 75 of our submissions - the denial of “reality of past events”; the specificity of the legislation it not being of general application; the proscription of challenges to the “legality of government action”; the exclusion of “liability for legal costs”; the provisions of section 12(1):
no conduct of the State connected with a “disputed matter” can in any proceedings be “challenged” -
and the indemnity provisions – you pay us for the losses and costs we have incurred because we were in breach of our contract with you. The legislation seeks to punish parties for asserting successfully their legal rights. Of course, there is the Henry VIII clause to which I will come – may I deal with that specifically a little later.
Finally on this issue, could I go to paragraphs 76 and 77 of our written submissions. Your Honours will see that in Durham Holdings 205 CLR 399, volume 8, tab 65, at page 410, in paragraph 14 of the reasons for judgment, it says that it is recognised that there are limits on State legislative power which are not spelt out in the Constitution.
Your Honours, that has been recognised of course in a number of other cases – one, the freedom of political communication, mentioned earlier today, and the other, the limitation recognised in Kirk v Industrial Court. This is a case, in our submission, where it is necessary to consider whether the Act has gone beyond State legislative power.
Can I take your Honours to our submissions in paragraph 77. In the first two sentences we set out what, in our submission, are the tests which should be applied. We seek to identify the features which we submit are gross contraventions of the mores of a civilised and modern society – I will not read them out, but your Honours will see them there set out.
We conclude with the observation that hopefully cases of this kind will be rare. The Court might be swamped by them or be drawn into being some kind of second legislature. This is a case, in our submission, where the legislation does offend identified criteria and criteria established by decisions of the Court and should be held, in our submission, invalid on that ground.
May I move then, your Honours, to another topic. It is the issue dealt with in our written submissions in paragraphs 78 to 86. It deals with what I would call, to put it shortly, the interference with the functions of other States and Territories. We would submit that the conclusion should be drawn that a law of one State cannot proscribe the exercise of jurisdiction by the courts of another.
In paragraph 82 of our submissions we refer to a number of provisions which have that effect and they have that effect because they apply specifically to proceedings in courts outside Western Australia. If one goes to section – could I go to section 11(3) and section 11(4) by way of example and also may I refer to sections 19(3) and 19(4). Those provisions refer to proceedings and “proceedings” is a term defined by section 7. If one goes to the definition of “proceedings” you will see that the definition means, amongst other things, in paragraph (a)(i):
an action, suit, complaint, arbitration or other proceedings brought or made before or to an adjudicator –
et cetera. The term “adjudicator” is itself defined in section 7(1) to mean – it is the first definition in section 7(1):
any of the following –
(a) a court;
(b) a tribunal;
(c) an arbitrator –
Going back to the definition of “proceedings” it will be seen that in paragraph (c) it includes non‑WA proceedings, and if I can go to the definition of that term, again in section 7(1), it means, to put it shortly:
anything that corresponds . . .
(a)under the law of the Commonwealth, another State or a Territory –
et cetera. Now, your Honours, if I could return then to our submissions in paragraphs 83 to 85, the application of the Melbourne Corporation doctrine reciprocal as it has been held to be, requires for it to be brought into play ‑ and we accept this in our written submissions at paragraph 84 ‑ requires that there be a significant impairment, curtailment or weakening of the capacity of the States to exercise their constitutional powers or functions.
But we would seek to say two things in that regard. First of all, we pick up what we say in our submissions in footnote 91, that the functions include – I am sorry, your Honours, I should have said our submission in paragraph 84 and footnote 91 that the constitutional powers and functions of the States encompass the working of the judicial branch of government.
Secondly, your Honours, what greater impairment from one Parliament could there be than to say, as sections 11(3) and (4) do, that no proceedings may be brought in another State, and if they were, they are terminated. Significance, in this regard, in our submission, is not just a question of – or the significance of impairment is not just a question of size, but a question of quality and nature as well. Your Honours, as to the Territories, your Honours will see in our submissions in paragraph 86.
May I move then to a topic that I have foreshadowed more than once, I fear – that I will be coming to – and that is the delegation of legislative power and this relates to the Henry VIII provisions to be found in section 30 of the 2020 Act. Our submissions on this issue can be seen at paragraphs 110 to 116, and in the reply at paragraphs 42 to 47.
The starting point, your Honours will see, is section 30(2). Section 30(2) confers on the Governor a power by order to “do either or both” of the matters there set out. Those matters are, first of all, by subsection (2)(a) to amend Part 3 of the Act, Part 3 being the part which is the view – which is the substantive part of the 2020 Act. By subsection (2)(b), to:
make any other provision –
that is other provision amending, for example:
necessary or convenient to address the circumstances.
The Governor’s power to make such an order is not to be exercised of his own motion. Rather the making of the order is to be on the Minister’s recommendation. May I deal with two matters: first, the circumstances in which the Minister may make such a recommendation, and secondly the orders which may be made in consequence of that.
The circumstances in which the Minister may make such a recommendation are set out in section 30(1). They are provisions of extraordinary breadth. They are prefaced by the words:
having regard to the purposes and subject matter of this Part -
but the Minister may find compliance with that direction a touch elusive because he or she will look in vain for an objects provision or a purposes provision, and consideration of the subject matter of this part will tell the Minister nothing more than that Parliament intended what was said in the existing provisions.
Now, your Honours, as we say in our written submissions in paragraph 11, there is power, but not unlimited power, to delegate subordinate legislation. May we refer, also as we have done in paragraph 112, to the observations in Giris. But the language used in section 30(1) is of the most non‑specific kind. Could I go first to section 30(1)(a).
Now, your Honours, Parliament has enacted, in terms of Part 3 - the purposes of the Act, as we have said, are not stated, except by reference to its terms. How can the Minister say that Part 3 as enacted has not adequately or appropriately dealt “with a matter or thing”? Your Honours, if one goes to section 30(1)(b), even more so, how can the Minister, having regard to the Act, determine that its terms do not apply to something to which it would be appropriate for it to apply? Even worse, the test is whether – in section 30(1)(c) – the Minister is saying, in effect, Parliament got it wrong and worse again, if I could jump over (d) for the moment to 30(1)(e)(ii), where the test is whether:
it is appropriate for this Part to be otherwise improved –
. . .
(ii) in any other way.
So, one has the Minister seeking to improve the work of Parliament.
KIEFEL CJ: Mr Jackson, as you would appreciate, it is very difficult for courts to rule on invalidity in relation to provisions such as this, when there are no concrete factual circumstances to which they might apply.
MR JACKSON: Well, your Honour, there are, with respect – and it depends on the level of generality in which one ‑ ‑ ‑
KIEFEL CJ: Well, the provision for the Minister’s action, the circumstances have not arisen and there is nothing to indicate that it is likely to arise, at least at the present.
MR JACKSON: Your Honour, the present situation is that we are, first of all, in terms of the agreement that we have with the State, the terms of the agreement have been altered in futuro by the Act itself – that is the first thing. That operates immediately. Secondly, the decisions in our favour about whether there has or has not been a breach of the provisions have been determined against us and determined immediately by the operation of the Act itself.
Thirdly, we have a situation where there is created by the Act an obligation to indemnify in respect of past expenses and an obligation potentially to identify in the future. In relation to the obligation to indemnify, there is, as the special case says, a claim already made under the indemnity.
Your Honour, if one goes, for example, to a passage to which I have not yet gone in section 30, (1)(d), that deals with the Minister’s functions in relation to the indemnity. This is not a case where one can say the Act has - nothing may ever happen. It is a case where we are presently subject to and made subject by the Act to immediate liabilities, the terms of our contract have been changed and we are subject to indemnities. I do not know that I can take it beyond that, your Honours, but that is what we would say.
Could I just say that one sees in section 30 – I think I was referring before to section 30(1)(e)(ii), what you have is a situation where the Minister can form the view that the Act should be otherwise improved:
in any other way.
So the Minister is seeking to improve the work of Parliament while taking into account the subject matter of the part. One notes also section 30(1)(e)(i) where it is said it is appropriate for the part to be improved:
by removing . . . an inconsistency with a law of the Commonwealth -
Your Honours, section 109 has managed to do that for quite some years without the Minister’s assistance? Section 30(1)(d) gets a little closer in terms of specificity, but it too turns on a formation of view as to appropriateness. Where the indemnity provisions to which section 30(1)(d) is referring are themselves entirely statutory in nature and ambit. Any change in them to improve their effectiveness is necessarily different from what Parliament has prescribed.
Your Honours, extraordinarily broad too are the powers which may be exercised under section 30(2). The Governor is given power to amend this part, that is, to address the circumstances, and subsection (3) makes it apparent that the changes can be retrospective. Could we refer your Honours to what we have put in our written submissions in paragraph 114. Your Honours, the Interpretation Act means that it includes a power to amend future laws. Your Honours will see we referred to the view of the provisions expressed by the Attorney‑General and we make the submissions that are set out in paragraph 114.
Could I go for a moment to our submissions in reply at paragraphs 42 to 47 dealing with this topic. As we note there in footnote 61 at page 14, I think, of the document, this is categorised as well by the defendant as a procedural‑type ground. Rather, we would suggest, it is a matter close to the heart of State legislative power. Each of the contentions, in our submission, put against us should be rejected.
May I go, first of all, to the one to which we refer in paragraph 42 of the reply and, your Honours, we would submit that is a matter completely bereft of substance. If one goes to the submission with which we deal in paragraph 43, the proposition that is put is that the – it should be section 31 should be regarded as only permitting orders to perfect the intention as opposed to orders made to supplement the intention.
But a better starting point is to look at the actual words of section 30 and if one looks at 30(1)(a) it says it does “not deal adequately”, 30(1)(b) “does not apply” et cetera, 30(1)(c) seems to be all about supplementation and section 31(b) says that the new provision applies with specified modification. Now, is that not supplementation?
Your Honours, the third basis relied on is a supposed ability to obtain judicial review. We deal with that in paragraph 44 and, your Honours, we would say that is practically no limitation at all. There is a discussion of this issue in the recent Canadian case by - a very lengthy recent Canadian case to which we there refer and give your Honours the reference.
There are two further matters, your Honours. One is the contention to which we refer in paragraph 45 of the reply and we have earlier dealt with in our submissions in paragraph 115. May I deal with that in reply in due course to go further? The second is a question which I have dealt with already in passing, the question of prematurity. It is the argument – it is referred to by our learned friends in their submissions in B52, paragraphs 106 to 107.
This legislation is legislation, as its main provisions in sections 9 and following indicate is against us, and it is concerned with the past, present and future dealings we have with the State. As I have said before, we are the subject of the indemnities and if one adds to that the indications given by the Attorney‑General in Parliament, referred to in sections 114 to 116 it is clearly directed – clearly likely to be used.
Your Honours, we have referred in our written submissions in footnote 119 to what was said by Justices Gaudron, McHugh and Gummow in Croome v Tasmania 191 CLR 119. It is volume 8, tab 62 at page 136 of the reasons, in the joint reasons, as I said at page 162, about point 3 going to about point 7 on the page where the argument was being advanced that the case was one that the – where the Court should not entertain it because it was outside the judicial function at that point. Could we just say this, your Honours. If one goes to about halfway down the page, your Honours will see the paragraph commencing:
Their Honours in re Judiciary and Navigation Acts are not to be take as lending support to the notion that, where the law of a State imposes a duty upon the citizen attended by liability to prosecution and punishment under the criminal law, and the citizen asserts that, by operation of s 109 of the Constitution, the law of the State is invalid, there can be no immediate right, duty or liability to be established by determination of this Court, in an action for declaratory relief by the citizen against the State, unless the Executive Government of the State has, at least, invoked legal process -
MR THOMSON: I am not aware of anything that particularly says we have these two common formulations and we choose one over the other. But your Honour is quite right, and clearly there was a point at which it was considered that government agreements should be brought into some conformity, and that is why there was enacted the Government Agreements Act of 1979, I think, which had the formulation that was adopted there in section 3.
GAGELER J: Mr Solicitor, Mr Palmer helpfully took us to some of the provisions of the agreement and he pointed out, for example, that in clause 9(2) the Mining Act is given a modified application in relation to topics covered by the agreement, and in clause 9(8), the Mining Regulations are given a modified or amended operation in relation to this agreement. As I understood his argument he is saying, well, look at that, a contract cannot amend an Act or a regulation. These provisions of the agreement, if they are to be effective according to their terms, must be effective as a matter of legislative force. What do you say about that?
MR THOMSON: The operation of those Acts would stand in the way of or would interfere with the operation of the agreement as between the parties. So, to that extent, the covering provisions in sections 4 and 6 of this Act clear aside any interference with the operation of the contractual agreement. So that for the purpose of the agreement between the State’s Premier and the parties to the agreement, they have agreed that particular Acts do not apply but instead other obligations will be in force as between them.
Now, if the covering Act had not been enacted, then whatever they had agreed contractually could not operate as between them because the other Act would interfere with the operation, or stand in the way of it operating, but the statutory force of the covering legislation means that the royalty provisions of the Mining Act do not apply.
So, in that sense, you do not have to have the agreement itself having statutory force and effect, you have to have the operation of the covering Act which removes anything that would stand in the way of the contractual obligations being effected between the parties.
GLEESON J: What about Mr Jackson’s submission that third parties may enforce rights under the agreement? Do you accept that?
MR THOMSON: So, whether a third party could enforce rights under the agreement would have to be assessed, we say, as a matter of contractual law. I mean, clearly in Western Australia there is the right of third parties who are named specifically in an agreement to do so under section 11 of the Property Law Act.
I think we deal with this in our reply where there was an example given about the workforce renting premises and it was suggested that the workforce would have a right to ensure that there was free accommodation provided by the State – sorry, the examples about accommodation, the third parties, that is, the workforce, could not insist on free accommodation being provided by the employer or the party to the State agreement to them. It is an obligation as between the State and the employer who is the mining company that develops the infrastructure.
GLEESON J: What about the access right in relation to shipping facilities in clause 21(3) which refers to – provides for third parties to claim access and participate in a dispute resolution process involving an independent person.
MR THOMSON: So it would be up to the State to enforce that obligation if it did not think that third parties were getting the right access. Really this is a contract to allow the State to act in the public interest and it is for the State to make those types of decisions. It is not for a third party who wants regulatory access to the wharf to rely upon the provisions of this contract effectively to engage what would otherwise be a regulatory exercise to get access to another person’s infrastructure.
KEANE J: Unless there is likely to be there is a third‑party access regime that applies under the general law.
MR THOMSON: Yes, and then there might be a question about whether or not that applies in the face of the covering Act or is consistent with it. But it all comes back to ‑ ‑ ‑
KEANE J: And whether opposition to such access on the part of the companies would be a breach of the contract with the State.
MR THOMSON: Yes.
KEANE J: Mr Solicitor, just in relation to section 31(2) of the Interpretation Act, section 3(1) of the Interpretation Act says:
The provisions of this Act apply to every written law . . . unless [there is] . . .
(a) express provision is made to the contrary; or
(b) . . . the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application ‑
Do you submit that section 4 of the 2002 Act is within the exception mentioned in 3(1)?
MR THOMSON: In fact, that was about the next point I was going to make, that you have a regime in the coveringAct, which is carefully defined and delineated to express an intention, we would say, and that is obviously a contrary intention to the general intention contained in the section 31, and therefore it would come within the operation of section 3.
We also mention, and have mentioned in our submissions, the fact that there is a particular provision in the covering Act that gives statutory force to clause 27, and that is relating to the resumption of land, and that is where a third party might be involved and you actually do need to have some statutory force in order to exercise powers to take land. I noticed that that is one of the provisions that is actually referred to in Mr Palmer’s schedule, but it is in a separate category because of section 5 of the covering Act.
GAGELER J: What work do you give the Government Agreements Act 1979? Does it have an overlapping effect on these agreements?
MR THOMSON: The primary operation is clearly through the covering Act here and that is because the Iron Ore Processing Agreement Act was enacted after the Government Agreements Act. As I said, the purpose of the Government Agreements Act was to bring some conformity to an approach to the number of agreements that existed at that point in time. But in Re Michael it is said that the operation of section 3 of the Government Agreements Act is no different in substance to the operation of the type of clause that you find in sections 4 and 6 of this Act.
So there is, in fact, no different outcome if the Government Agreements Act were to apply, but to the extent of any inconsistency, the particular provisions of the covering Act must be the ones that are particularly in force.
GAGELER J: Is there inconsistency?
MR THOMSON: No.
GAGELER J: Well, I am looking at section 3(b) of the Government Agreements Act, just relating it to the provisions of the type that Mr Palmer took us to, the ones that purport to amend the Mining Act, for example. It says:
any purported modification of any other Act –
provided for in a provision of a government agreement:
shall operate and take effect so as to modify that other Act –
That looks like a statutory amendment to me.
MR THOMSON: So the force of the modification comes from the operation of the Government Agreements Act itself, not from the underlying contractual obligation.
GAGELER J: Yes.
MR THOMSON: And so, according to the same principle, to the same view that there is, perhaps, a piece of legislation that interferes with the operation of the contractual obligations, the Government Agreements Act equally clears the way. So there might be statutory interference with the performance of the contract by another piece of legislation. The operation of the covering Act in the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act, or the Government Agreements Act, prevents a statute that would otherwise impede the performance of the contractual obligations from having that effect.
GAGELER J: There is perhaps a difference between clearing away an impediment and changing the operation of a statutory regime, perhaps.
MR THOMSON: Well, in both cases there will inevitably be a restriction in the scope of the operation of the statutory regime to allow the contract to be performed according to its terms. And so in that sense perhaps there is a distinction without a difference and that is why the effect of the Government Agreements Act we say is the same. But if there be any problem about that, then we would submit that it has to be controlled by the terms of the covering Act itself.
EDELMAN J: The relevant party to the agreement is the Executive?
MR THOMSON: Yes.
EDELMAN J: The agreement has as a condition precedent to its operation the passage of the Bill with the exception of the opening clauses, and the purpose for that, it appears from section 3, is ratification of the agreement.
MR THOMSON: Yes.
EDELMAN J: What precisely is the ratification, or is the effect of ratification by Parliament? What is it doing, and why is it a condition precedent to the agreement?
MR THOMSON: Otherwise you have the Executive entering into a contract which might – and indeed clearly does, because it disapplies certain statutory provisions, you would have the Executive entering into a contract which if it is performed according to its terms, is inconsistent with the statutes of the Parliament.
EDELMAN J: So, the ratification is no more than a clearing of the way of any inconsistent statute?
MR THOMSON: Yes, and can I point out that if you look at where this comes from, if you go to Sankey v Whitlam, and perhaps I can take you to Sankey v Whitlam – perhaps I will do that first thing in the morning. In Sankey v Whitlam the various members of the Court approved a distinction between an Act which validated or approved an agreement and an Act which imposed an obligation upon parties to implement and fulfil the terms of the agreement.
So, on the one hand, there was an Act which validated or approved ‑ which is similar to authorised and ratified ‑ and on the other hand there was an Act which imposed an obligation, a statutory oath – sorry, an obligation to implement and fulfil the terms of the agreement which in modern parlance we would say is equivalent to enacting the obligations into statutory force such the McCamey’s Monster legislation. That distinction was based off the type of decision in Caledonian Railway Company v Greenock and Wemyss Bay Railway which was approved by various members of the Court in Sankey v Whitlam. We say in this case the particular terms of the Act conform with the first type of category as opposed to the second type of category. That is to say, ratification and authorisation is equivalent to validation and approval.
GLEESON J: Is the language of ratification possibly to overcome any potential illegality in the agreement?
MR THOMSON: Potentially, yes, and the illegality arising because the agreement is in conflict with statutes that would otherwise interfere with the operation of the – the performance of the contractual obligations.
GORDON J: Or otherwise seen as a fetter on statutory power.
MR THOMSON: Yes, and all of that line of case law. In terms of Sankey v Whitlam, can I make these comments. The Court in that case actually agreed that the financial agreement in that case which was in issue did not have the force of law. That was a financial agreement that was made under section 105A of the Constitution and that was a pretty different type of provision, in any event. They agreed with the distinction that I have just mentioned between the two categories of case and that distinction we say is what has permeated the two different forms of drafting that has been adopted in Western Australia.
In the Caledonian Railway Case what was in issue there was whether there was an ability to insist upon arbitration as opposed to litigation of a dispute, and the arbitration of the dispute was something that was required by the contractual agreement that was annexed to a statute and in that case, because the parties were required to implement and fulfil the terms of the agreement, it overcame the objection to an agreement which was contrary to law for ousting the court’s jurisdiction. So, in that case, the agreement fell into the second category rather than the first category.
Can I say that there was a submission that was made that the reasoning of Justice Parker in Re Michael was bereft of analysis or bereft of reasoning. In fact, his Honour Justice Parker went through Sankey v Whitlam, the very case that is relied upon, and he looked at the actual words of the provision and gave them an interpretation, which is consistent with what we have advanced to the Court, and which has been accepted in WA, we would suggest that the Court ought not to accept that there was any difficulty about his reasoning process, and that it was fully exposed and not bereft.
KIEFEL CJ: That might be a convenient time, Mr Solicitor.
MR THOMSON: Yes.
KIEFEL CJ: In relation to the matters that you are coming back to, the issue of hypotheticality and various provisions, a supplementary short outline or note which we could follow would be of assistance to the Court and, no doubt, to the plaintiffs as well.
MR THOMSON: Certainly. Your Honours will have one.
KIEFEL CJ: Thank you. The Court will now adjourn until 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 17 JUNE 2021
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