Mineralogy Pty Ltd & Anor v State of Western Australia; Palmer v The State of Western Australia
[2021] HCATrans 104
[2021] HCATrans 104
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 TUESDAY, 15 JUNE 2021, AT 2.15 PM
Copyright in the High Court of Australia
____________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR M.A. KARAM and MR H.C. COOPER, for the plaintiffs in B54. (instructed by Jonathan Shaw)
MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MR S.J. FREE, SC, MS J.E. SHAW and MS Z.C. HEGER for the defendant in B54 and B52. (instructed by State Solicitor’s Office (WA))
MR C.F. PALMER appeared in person in B52.
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MS F.I. GORDON, MR T.M.WOOD and MR J.G. WHERRETT, for the Commonwealth Attorney‑General intervening in both matters. (instructed by Australian Government Solicitor)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.S. CALDWELL, for the Attorney‑General for New South Wales, who intervenes in both matters. (instructed by Crown Solicitor’s Office NSW)
MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MR L.S. PEATTIE, on behalf of the Attorney‑General for the Northern Territory, intervening in both matters. (instructed by Solicitor for the Northern Territory)
MS R.J. ORR, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MR G.A. HILL and MR M‑Q.T. NGUYEN, for the Victorian Attorney‑General intervening in both matters. (instructed by Victorian Government Solicitor’s Office)
MS E.J. LONGBOTTOM, QC: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney‑General of the State of Queensland intervening in both matters. (instructed by Crown Law Qld)
KIEFEL CJ: Thank you. Yes, Mr Jackson.
MR JACKSON: Your Honours, the Court will have our outline of oral argument, I think.
KIEFEL CJ: Yes.
MR JACKSON: As is apparent, your Honours, from the special case, the central question is whether Western Australia’s Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 is in toto or in any and which part a valid law of that State. May I describe that Act, your Honours, for brevity as the 2020 Act.
The legislative context in which the Act is found commences with the agreement which is referred to in paragraph 5 of the special case. That agreement can be found in annexure A to the special case, page 141. Could I say, your Honours, the page numbers are the numbers in red at the top of the page. Could we note particularly, your Honours, the agreement which is referred to in paragraph (d) of the recital to that agreement.
That annexure – annexure A to the special case is of course itself part of an enactment of the Parliament of Western Australia, first in 2002 – it commences at page 137. There were some amendments to the 2002 agreement by a further agreement between the parties in 2008, that is the subject of the 2008 Amending Act. The effect of the two sets of provisions together, your Honours will see in the version of the agreement at page 131 of the special case which sets out in red the amendments made in 2008.
Your Honours, I need to go, and I will do so as briefly as I possibly can, to the background circumstances, and again will go as briefly as I can to the structure of the 2020 Act and after that to the submissions on the various issues which we seek to raise.
Your Honours, in terms of background, could I go first to annexure A to the special case, page 139. It is clear, of course, that the terms of the agreement were to be binding on the State of Western Australia. That is made apparent from sections 4 and 6, which ratified the 2002 agreement and the 2008 variation agreement authorised their implementation and said that they operated and took effect despite any other Act or law. Your Honours, I will be coming back to the effect of those provisions somewhat later.
May I go then, your Honours, to clause 6(1) of the agreement, which you will see at page 155. As is apparent from its terms, the plaintiff, Mineralogy, or Mineralogy with a “Co-proponent” was entitled to make what are there described as project proposals. The matters to be dealt with by such project proposals were set out in clause 6(2) and your Honours there were other requirements as well. One can see them, for example, in clause 6(6) at page 158.
Two such proposals have provided for the basis – or the occasion, perhaps – for the legislation presently in issue. They are described in paragraphs 23 and 24 of the special case at page 126. The earlier consists of the documents which are referred to in paragraph 23. They were submitted in two parts in August of 2012.
If I could pause at this point to say, they are described collectively in section 2020 – I am sorry, your Honour, may I start again - they are described collectively in section 7 of the 2020 Act as the “first Balmoral South proposal”. Your Honours will find the impugned legislation in the joint book of authorities, tab 1, volume 1. The relevant definition is at page 30. The later proposal consists of further documents submitted to the Minister on or about 21 June 2013. They are described in section 7 of the 2020 Act as the “second Balmoral South proposal” – again volume 1, tab 1, page 37.
As the special case, your Honours, says at paragraph 25 – and this is at page 127 of the special case – a difference of view arose between Mineralogy and International Minerals – the plaintiffs, on the one hand, and the State on the other - on whether we had made a valid proposal with which the Minister was required to deal under clause 7.
The agreement contemplates arbitration to resolve disputed differences of view between the contracting parties. There is a very broad arbitration clause, clause 42, which your Honours can see at page 205 – I will be returning to its actual terms somewhat later.
The issue went to arbitration with the award, which I will call the first award, being made on 20 May 2014. Your Honours will see that it is annexure B to the special case at page 256. May I go to it for just a moment, your Honours. Your Honours will see that in that arbitration the State’s position on the construction of the agreement was held to be erroneous and ours correct. You will see that in paragraphs 66 and 67 of the award, which are at page 305. Your Honours will see at paragraph 66:
The Minister was required to deal with it under Clause 7 of that Agreement, which he has failed to do.
Your Honours, in paragraph 67, about point 7 on the page:
The failure of the Minister to give a decision within that time means that he is in breach of the State Agreement and is liable in damages for any damage that the Applicants may have suffered as the result of the breach.
Your Honours will see then that the orders made by the arbitrator are at page 306, paragraphs under the heading “Award”. You will note in paragraph 70, just above that, that we had at that point:
foreshadowed a potential claim for damages by reason of the Minister’s breach in failing to deal with the August 2012 submission under clause 7(1).
As to the orders made by the award, the State paid the costs there referred to and in the period shortly after the first award, a Minister sought to deal with the arbitrator’s order – order 1 – by imposing conditions precedent to granting approval to the first Balmoral South proposal.
Again, your Honours, there was a difference of view on whether the Minister was entitled to act in that way under the agreement. That resulted in a further referral to arbitration, this time of the issues which are referred to in the special case at page 128. Again, our view prevailed before the arbitrator. The award is annexure D to the special case at page 383. The orders actually made by the arbitrator can be seen at page 423 and may I go to those for just a moment. First:
AWARD
1.DECLARE that the Applicant’s right to recover damages was not heard and determined in the Award of 20 May 2014.
2.…are not foreclosed from further pursuing claims for damages -
and paragraph 4:
has not been inordinate and inexcusable delay on the part of the Applicants -
Your Honours, hardly surprisingly, we then sought to proceed with our claim for damages and the third arbitration was set in motion. The matters it was to decide can be seen in the special case at paragraph 39 at page 130.
They include damages for breach of contract in relation to the first proposal, and damages for the Minister’s later attempts to impose conditions, and the arbitration was to commence its hearings on 30 November last year. That was the point which the matter had reached, but the prospect of that occurring was brought to an end by the enactment of the legislation in question in these proceedings.
May I turn now, your Honours, to the structure of the 2020 Act. Could I say that I will do so as briefly as possible and with a view to being able to deal more directly with provisions when I come to the actual submissions. The way in which the 2020 Act operates is to add to the Act itself a new Part 3 commencing – perhaps a little confusingly – at section 7. You will see that commencing at page 26 of volume 1 tab 1 of the joint book.
The Act deals, speaking very broadly, with two concepts: one called disputed matters, the other called protected matters. May I go first to disputed matter. It is defined at page 29 and it has several parts. They commence with paragraphs (a) to (e) which are, in effect, the matters the subject of the first and second arbitrations, or which were to have been the subject of the third arbitration which, as I said, was to commence on 30 November last year. The next category is paragraph (f). It includes in “disputed matter” conduct satisfying these criteria. First:
any conduct of the State –
itself a term defined in section 7:
or of a State agent –
also defined in section 7. Your Honours will see the definitions at page 38. The conduct must be:
connected with the Balmoral South Iron Ore Project ‑
noting that “connected with” has more than one meaning. You will see the meanings referred to in section 7 and the definition of “connected with” at page 28.
There is also the provision of section 7(3). It relates back to subsection (2). Your Honours, unless one is keen on those games that appear in the holiday parts of newspapers, I will not go into the detail of how the two operate, but I invite your Honours’ attention to them. There is also a requirement that the:
conduct of the State, or of a State agent, occurring or arising before . . . commencement -
“Commencement” is a term used on a number of occasions. It is defined at page 27 to mean:
the coming into operation of section 7 -
and section 2 provided that:
This Act comes into operation on the day on which it receives the Royal Assent ‑
which was 13 August 2020. You will see that at page 25 and commencement began at the start of that day. That comes from section 21 of the Interpretation Act 1984. I do not think I need go to that. The third category, your Honours, of “disputed matter” is in paragraph (g) of the definition. It refers to:
any other conduct of the State, or of a State agent -
That conduct may have occurred or arisen at any time ‑ that is, before or after commencement – and the only further requirement is that the conduct be connected with a matter defined as a disputed matter in one of the earlier paragraphs. The fourth and final category is “pre-agreement State conduct”, a term which is defined in section 7 at page 34. It refers to:
any conduct of the State, or of a State agent –
(a)occurring or arising before the making of the agreement . . . and connected with the making –
That is the 2002 and the 2008 agreements. Could I pause to say this. It will be obvious that the title “disputed matters” is not an accurate depiction of matters currently in dispute. Some of these matters have already been decided against the State and could no longer be in dispute. Clause 42(1) refers to - that is the arbitration clause - them having been settled by arbitration and, of course, the arbitration award was binding on the State ‑ section 35 of the Commercial Arbitration Act. I will not take your Honours to it at the moment, but your Honours will find it behind tab 25 at page 246 – tab 25 of the joint book.
The Court will note that we have, in our written submissions in paragraph 24, and in footnote 12 to those written submissions, referred to forms of statutory drafting which adopt untrue or bland terms to make the subject matter more reasonable or palatable. There are circumstances, of course, where the adoption of that approach is perfectly justifiable - an aspirational title to an Act, A New Tax System for Australia I think was one much‑lauded in years gone by. But there can be difficulties with the use of, if I could use an Americanism, fake names, fake titles and descriptions, in the body of legislation.
One is that when the Court comes to consider whether the legislation falls outside the State’s legislative power on the ground that the exercise of such power is subject to some restraints by reference to matters deeply rooted in our democratic system – and I am referring to the qualification, if I can use that term, in Union Steamship v King – it is relevant that the members of the Houses of Parliament have been invited to vote on something, a central part of the legislation, which is presented to them in terms likely perhaps designed to mislead.
GAGELER J: Mr Jackson, some of these matters were disputed, some of the matters are disputed, and some of them might be disputed. What is wrong with calling them disputed matters?
MR JACKSON: Well, your Honour, it has two difficulties, in our submission. It is wrong because in referring to quite a number of those things, they have been resolved. They are not disputed. They can be called disputed if one likes to. But if one calls them “disputed”, then it brings about a situation that the Members of Parliament who are voting on something are voting on something that is presented to them as being disputed. It has been settled.
What I am saying about it in this regard is that of course there are circumstances where it is appropriate to give a short name to a number of things collectively, for example. But having said that, if your Honour is dealing with a matter of importance where a vote is expected on it, then surely if one is looking to see whether there has been an excessive action by Parliament – your Honour, I have used the term sort of relatively neutrally - but it is relevant to see how the matter was presented to the Members of Parliament voting for it - not decisive, but relevant.
The second thing about it, your Honours, is that the use of a type of language does create difficulties if one gets to the question, say it is question 3 here, of severance, because if you go to the instructions given by the 2020 Act, say by section 8, and try to apply them to these circumstances, what you have is that section 8(7) says that to avoid doubt the provisions of Part 3 contain matters of substantive, not procedural law. Presumably that means that those concepts are to be applied in the operation of the severance provision in section 8(5). One adds to that the concept which you will see in section 26(2) at page 81, that:
an applicable provision does not limit any other applicable provision.
But if one is looking at the question of severance what is to be done with disputed matters which are really disputed, which, true or false, is to be applied.
GLEESON J: Mr Jackson, do claims arising in relation ‑ ‑ ‑
MR JACKSON: I am sorry, your Honour, it is difficult to hear.
GLEESON J: Do claims arising in relation to (a) through to (e), would it be fair to say that those claims have merged in the relevant arbitral awards?
MR JACKSON: I am sorry – in relating – I am sorry, it is very difficult to hear, I am sorry.
GLEESON J: I am wondering whether claims relating to the matters that are listed in (a) through to (e) merged in the relevant arbitral awards?
MR JACKSON: Well, your Honour, in the ordinary course of events the result of the arbitrations would have produced, in a sense, a merger of the claims giving rise to estoppels, for example. That is a matter dealt with in some observations to which I will come a little later in a decision of the Court dealing with arbitration - a relevantly recent decision - referring to the fact that the resolution of the matter by arbitration can give rise to an estoppel without there being actual enforcement of the terms of the arbitration. So, your Honour, I have used, I think, the expression before, coming from clause 42, that the matter was settled, was settled by arbitration - “settled” means as between the parties to it.
Your Honours, could I come then to the course taken by the Act in relation to the – the 2020 Act in relation to disputed matters. It commences with section 9, which you will see at page 41. Your Honours, it provides in section 9(1) that neither of the Balmoral South proposals:
has, nor can have, any contractual or other legal effect under the Agreement or otherwise -
and goes on then in subsection (2) at page 42, to provide only documents submitted:
after commencement can be proposals for the purposes of the Agreement -
That is, of course, completely contrary to the agreement. It is completely contrary also to the results of the arbitrations referred to earlier and it operates to amend the agreement. But there remain the extant arbitrations and awards. These, the Act seeks to deal with by section 10. It deals with the first award in section 10(4) – that is said to be:
of no effect and is taken never to have had any effect.
The arbitration agreement pursuant to which the first award was made is said to have no relevant validity at section 10(5).
A similar course, your Honours, is adopted in relation to the second award. You will see that in section 10(6) and (7). The third arbitration, that is the one which was to commence on 30 November last year is said to be terminated at section 10(1) as is the arbitration agreement underlying it, subsection (2).
Section 11 deals with the State’s liabilities in relation to a disputed matter. You will see that at page 43. Your Honours will see that section 11(1) says that:
the State has, and can have, no liability –
in respect of first of all:
any loss . . . that is the subject of a . . . relevant arbitration -
and secondly:
any other loss, or other matter or thing, that is, or is connected with, a disputed matter -
and thirdly:
in any other way connected with a disputed matter.
Your Honours will see that the two terms, “liability” and “loss”, are defined. First of all, “liability” is very broadly defined – you will see it at page 31 – as is “loss” at page 32. Then section 11(2) says that:
Any liability of the type described in subsection (1) –
that existed before commencement is extinguished. Section 11(3) goes on to prohibit the bringing of proceedings in respect of such a liability. Section 11(3) speaks of a period “On and after commencement” – such proceedings are terminated by section 11(4) if they have not completed by the time the Act received the Royal Assent.
But turning to sections 11(5) and 11(6), they seek to extinguish any order made in respect of proceedings in the time gap referred to in section 11(5) – your Honours, I will not spend time on that. But section 11(8) absolves the State from any liability for the legal cost of a relevant arbitration that is subject to section 26(3) which looks after the cost of the arbitrator. Costs otherwise fall within the concept of a liability. Section 12 is concerned with litigation - you will see that at page 46. It provides in subsection (1) that:
Any conduct of the State that is, or is connected with, a disputed matter cannot in any proceedings –
(a) be . . . challenged –
et cetera – I will read out the details of it - - -
EDELMAN J: Mr Jackson, just before you move from section 11, is section 11 effectively a cognate provision with section 9 in this sense, that section 11 is removing – in a very broad sense – all liability, whereas section 9 is extinguishing all rights? Or is section 9 doing something different? For example, is section 9 purporting to make a declaration as to what the state of law is in relation to contractual effect of the documents?
MR JACKSON: Your Honour, section 9 seems to have two functions. The first function is that referred to in subsection (1), where what it is saying is that the two Balmoral South proposals have no contractual effect. The second thing is that it is saying in the future only those submitted after commencement can have any effect. So, that is dealing with the past - in a sense it is saying for the future the agreement has this operation.
EDELMAN J: I think my question was a bit more specific than that. It is asking is the way in which, or the intended way in which section 9 is to achieve that purpose intended as an extinguishment of the contractual rights, or is it intended effectively as a dictation to courts in the future as to how courts should deal with the agreements?
MR JACKSON: Well, it does seek to have both operations, your Honour. I do not mean to – your Honour, it would – there is no doubt that section 9(1), for example, is saying if an issue arises and the issue is, if it is going to arise anywhere one would have thought in a court or perhaps in arbitration, but is it saying neither of the proposals has or can have any contractual effect which means it cannot be treated as having an effect. It is clearly a dictation telling courts how that issue is to be resolved.
Then if you come to section 11 it is closer to saying that there can be no liability, it is closer to saying your damage is limited to 5 million – a simple type of Act of this kind – damage is limited to 5 million, but, as your Honour mentioned, so far as section 9 is concerned it is unquestionably telling anybody that has to decide a matter, the subject of it, how it is to be decided. Section 12, your Honours will see, is connected with litigation. It provides in subsection (1) that conduct which:
is, or is connected with, a disputed matter cannot –
be challenged and so on, as your Honours will see set out there at great length.
GAGELER J: Mr Jackson, that is a standard privative clause, I think. Does it cover jurisdictional error?
MR JACKSON: Yes and no. Your Honour, I answer that in that way because there is a provision towards the back of the document which ‑ ‑ ‑
GORDON J: Section 26(6).
MR JACKSON: Thank you, your Honour. Section 26(6) says:
No applicable provision affects the jurisdiction of a court to grant relief for jurisdictional error.
Presumably, 26(6) would prevail over the terms of section 12, one would think.
STEWARD J: Does 26(6) address only subparagraph (b) of 12(1) or does it also save, or attempt to save subparagraph (a)?
MR JACKSON: Well, your Honour, the concept in 26(6), one would think, reflects the notion of the ability of courts – Kirk and so on – to determine whether there has been jurisdictional error in a State court below the Supreme Court. The difficulty one sees is that that appears to be the only provision which can be regarded as a qualification to section 12. Now, no doubt, your Honours, the terms of section 12(1) are ones not uncommonly used in relation to privative clauses on the occasions when those are used. But, your Honours, one also sees that section 12 goes on ‑ ‑ ‑
GORDON J: Before you go on, can I ask how does this arise in this action? How does section 12 arise? We have no proceedings on foot, do we, which would attract that bar, or which has been pleaded in bar? So how does it fit into your argument?
MR JACKSON: Your Honour, the position at present, I think, is that there are currently proceedings in the Supreme Court of Queensland where there is an appeal for a dismissal of an application on our side and there are some proceedings referred to in the Federal Court dealing with it.
GORDON J: But it is still hypothetical until section 12 is raised, is it not?
MR JACKSON: But, your Honour, the position of course is that we are plaintiffs in those proceedings. It would be extraordinary if the – I am sorry, I am putting it badly. What I am seeking to say is that in those proceedings, when the proceedings come on for hearing, this case having been disposed of no doubt, the question will be whether some reliance is placed upon that. But it would be very difficult to see, your Honour, how reliance would not be placed on it in circumstances where there already has been a claim made under the indemnity made against us.
GORDON J: No, as I read paragraph – I think it is the last paragraph of the stated case, it is you have been put on notice only, have you not?
MR JACKSON: We were put on notice that ‑ ‑ ‑
GORDON J: They may.
MR JACKSON: ‑ ‑ ‑ a claim is made, is being made under the indemnities. Your Honour, we are the people named as people liable under the indemnities. Your Honours, what I was going to go on to say to assist, if I may, you will see from section 12(2) that in any event:
the rules of natural justice . . . do not apply to, or in relation to, any conduct of the State that is, or is connected with, a disputed matter.
So far as section 12(3) is concerned, that makes it apparent that is the case whenever the conduct occurred. Then there are the provisions of section 13, which commence at page 48, which deny access to documents. That is done, if I could put it very shortly, by saying firstly the potentially relevant parts of the Freedom of Information Act are disapplied – that is subsection (1). Secondly, any extant application would be extinguished. Then by section 13(4), there can be no proceedings for discovery, et cetera, “of any document or other thing”, and finally, any proceeding of the type referred to in section 13(4) is terminated – that is subsection (5), and no costs, subsection (8).
Could I go then to the indemnity provisions, your Honours? They commence at page 50, and section 14. Now, your Honours, if I could go to 47 of the special case, your Honour Justice Gordon referred to the special case before. But what paragraph 47, which is at page 131 of the special case, says is that the State has put the plaintiffs on notice that the State intends to rely on the indemnity in section 14(4) in connection with the legal costs of earlier proceedings in the Supreme Court of Queensland.
So, it is not hypothetical, if I may say so, with respect, the status that it intends to rely on the indemnity to which I am about to come. Your Honours, the core provision is at section 14(4), and it imposes an obligation on every relevant person to indemnify and keep indemnified, et cetera. “Relevant person” is defined by subsection (2). That is the plaintiffs, Mr Palmer, and every relevant transferee or former transferee.
“Relevant transferee”, your Honours, section 14(4) deals with the ambit of the liability to indemnify, to which a relevant person is liable. First there is an indemnity against any “protected proceedings” – that is section 14(4)(a). That term “protected proceedings”, is defined by section 14(1).
GLEESON J: Mr Jackson, do you say these proceedings fall within the meaning of “protected proceedings”?
MR JACKSON: They could, your Honour. They could. Your Honour, a quite different problem would arise in relation to that, of course, because it would be taking away – it is, we will be submitting later, adding a condition to the jurisdiction given by the Constitution and the Judiciary Act to this Court. Your Honours, the second thing is there is an indemnity against:
any loss, or liability to any person, connected with a disputed matter -
There is a further definition of “loss” in section 14(1). There is the definition of “liability” I have been to before in section 7(1) and the indemnity extends to costs. You will see that from 14(4)(c). Now, the result of that, of course, is that the indemnity provisions, in a case of breach of contract, have made the party not in breach liable for the other party’s losses and, in addition, losses and costs, and, in addition, make Mr Palmer, who is not a party to the contract also liable.
I mentioned disputed matters. May I move to the second group of matters – protected matters. One commences with the definition of “protected matter”, again in section 7 at page 36, and your Honours will see that it deals with a number of topics. First, paragraphs (a) to (e) appear to deal with the steps involved from first thoughts about how to deal with disputed matters to the coming into operation of the 2002 Amending Act. Your Honours, I will be dealing with that more fully a little later.
The second feature is that paragraphs (f) to (j) deal with a similar course in relation to effectively what is called “Part 3 subsidiary legislation”. “Part 3 subsidiary legislation” is defined by section 7 at page 33 to mean “regulations under section 29” – your Honours will note that it is a pretty standard regulation‑making power ‑ but also orders “under section 30”. I will be coming to the orders under section 30 in a sense as a separate matter.
Could I go then to section 18(1) at page 61. It declares that “No protected matter” can have any of the effects referred to in paragraphs (a) to (i) on section 18(1). If it had such an effect before commencement, section 18(2) has the effect that it never had that effect.
Your Honours will see then also that by section 18(3), the concept of “protected matter” is enlarged upon, so too by section 18(4) is the concept of the “State”. Then, one sees in section 18(5) a provision saying that no evidence, written or oral, is admissible if against the interests of the State or its agents, nor can there be, a discovery, inspection or disclosure, section 18(6), no evidence can be given in any way concerning a protected matter, subsection (7).
Your Honours will see in section 19, page 64, a number of provisions in relation to protected matters which rather mirror those in earlier provisions dealing with disputed matters – may I mention them very quickly – there is the declaration of no liability in section 19(1), followed by extinguishment in 19(2). There is the prevention of legal proceedings in 19(3). There is the termination of proceedings in 19(4) and 19(6).
Section 20 which deals again at length with legal proceedings, section 21 access to documents, and then in section 22 “Mineralogy, International Minerals, Mr Palmer and relevant transferees” are, once again, made liable for an indemnity. That arises under section 22(4). Your Honours will note the expanded definition of “loss” in section 22(1). Finally, the ambit of the indemnity includes the matters referred to in section 22(8). Your Honours, those are the introductory matters I wanted to deal with.
I go now to the first of the matters we want to deal with by way of submissions and it is section 6 of the Australia Act. Your Honours, I am sure will have that, but it can be seen in any event at tab 4 of the joint book, page 109. It is dealt with in our submissions in‑chief, paragraphs 87 to 109 in B54. It is responded to in the defendant’s submissions in B52, paragraphs 92 to 100, and in our reply submissions paragraphs 92 to 100. I suspect there is an error in saying that.
May I commence by referring to the Australia Act itself in which section 6 is to be found. Your Honours will see that, as is apparent from the first paragraph of the preamble to the Australia Act, it was to bring Commonwealth‑State constitutional arrangements into conformity with the status of Australia as a sovereign, independent and federal nation.
If one goes to the second paragraph of the preamble, it records that this was an exercise of Commonwealth legislative power under section 51(xxxviii) at the request of the States. The States, on the one hand, gained in some respects. Operation of the United Kingdom legislation ceased – your Honours can see that from sections 1, 3(1) and 4. There was some accretion to the legislative powers of the State, extraterritoriality question was gone, section 2(1), and some former United Kingdom legislative powers now devolved on the States, section 2(2), but not all was gained for the States.
It said that the provisions of the Colonial Laws Validity Act, or section 5, there was now section 6 of the Australia Act, and it said, and says, that a law having the characteristics referred to in its terms:
shall be of no force or effect unless it is made in such manner and form . . . required by a law made by ‑
the Parliament of the State. Your Honours, I am going to come to each of those characteristics of course, but may we make two further preliminary comments. One is that, unlike section 109, section 6 does not require inconsistency with a law of the Commonwealth, apart from the Australia Act itself. It does not require consistency with another law of the Commonwealth. There is no need for there to be, as there is in the case of section 109, a relevant law.
The second point is that, unlike a State law, “invalidated” – if I could put the terms in inverted commas for the moment ‑ under section 109, a law made in a manner not complying with section 6 does not revive on the repeal of the relevant Commonwealth law. It is dead and buried.
May I make two additional preliminary comments about section 6. The first is that it is not in the same terms as its predecessor, section 5 of the Colonial Laws Validity Act. The differences between Australia Act provisions and pre ones are summarised conveniently in Professor Twomey’s, The Australia Acts 1986, 2010, at pages 242 to 243. You will see that in volume 24 of the joint books, tab 172, page 9601 – in particular paragraph 2, in summarising the main differences she says in paragraph 2:
Section 5 refers to the ‘constitution, powers and procedure’ of the legislature, whereas s 6 refers to the ‘constitution, powers or procedure’ of the Parliament.
So there is a difference in wording; that is the first thing. The second thing is, your Honours, section 6 was referred to in Attorney‑General v Marquet (2003) 217 CLR 545 at page 572. Your Honours will see that in tab 41, volume 2 of the joint book, at page 788. Four Justices of the Court left open the ambit of the expression:
constitution, powers or procedure –
in section 6. May I take your Honours to that for just a moment. Your Honours will see in paragraph 73 that there is a reference to section 5, and then you will see, your Honours, it said, this is about halfway down the page:
Nonetheless, the use of the expression “constitution, powers or procedure” in the Australia Act is evidently intended to build on the provisions of the Colonial Laws Validity Act.
It said, and I will come back to the sentence in parenthesis in a moment:
(The use of the conjunction “or” rather than “and” in the collocation is readily explained by the drafting change from grant of power to requirement to obey manner and form.)
That is adverted to earlier in paragraph 73. And then in paragraph 74:
On its face, the expression “constitution, powers or procedure” of a legislature describes a field which is larger than that identified as “the constitution” of a legislature.
Then the Court went on to say – and, your Honours, I will not read out the remainder of the paragraph, but your Honours will see what is there set out.
Now, your Honours, as is apparent from our submissions, the contentions that we make in relation to section 6 are, in essence, these. First, that the 2020 Act is a law respecting the powers and procedures of the Parliament - that has two elements, of course, respecting and powers and procedures. Secondly, the Act in its form prior to the 2020 Act was a law made by Parliament – and when I say the Act I mean the Act and agreement - and did provide a manner and form by which laws making provisions such as those of the 2020 Act were to be made. Thirdly, the earlier provision providing for such manner and form was to be found in clause 32 of the agreement and that the procedure of clause 32 – procedures ‑ ‑ ‑
KIEFEL CJ: This argument hinges upon clause 32 having statutory force essentially, does it not?
MR JACKSON: Ultimately, yes, of course, your Honour. Yes. Your Honour, I deal with each of these elements. The procedure was not complied with. Now, your Honours, could I just say this. Section 6, as its terms indicate, looks to two provisions, one earlier in time, one later. The later provision for present purposes is, of course, the 2020 Amending Act. For section 6 to have any application it would have to be a law made by the Parliament of the State. There seems no doubt that the 2020 Amending Act seems to satisfy at least that requirement.
It passed through the Houses of Parliament. It passed to the Governor for approval. It did so in the manner of a statute. Its form is under the law made by the Parliament of the State and it purports to amend the existing laws made by the Parliament.
That then gives rise to the next question – or two questions. One is whether the 2020 Act is a law respecting the powers or procedure of the Parliament of Western Australia and the other is the manner and form question. Could I come to the first of those now?
Your Honours, the question whether the 2020 Act is a law respecting the constitution, powers or procedures of the Parliament involves two aspects. One is the ambit of the concept which is conveyed by the word “respecting”. The other is the application of that concept to the 2020 Act. Could I deal with them in that order?
Your Honours, as to the ambit of the term “respecting”, all that is required in section 6 is that the law be one respecting, et cetera, the constitution, powers or procedure. No doubt a question may arise as to the practical ambit of that term. Is it synonymous with, for example, the breadth of the concept “with respect to” used in sections 51 and 52 of the Constitution? Is it a reflection of the broad usage in section 5 of the Colonial Laws Validity Act, a term which was referred to in McCawley v the King (1920) 28 CLR 106 at 117, a term which would not have been construed widely?
Your Honours, it may be that the term “respecting” in the context of section 6 should not be given as broad an interpretation as “with respect to” in sections 51 and 52. They serve different purposes after all, but “respecting” where used in section 6, if one goes to its term, must surely, in our submission, mean dealing with or about - a law dealing with or about “the constitution, powers or procedure”.
If I could turn then to “constitution, powers or procedure”, section 6, your Honours, does not use the older language. It does not speak of “constitution, powers and procedure”, it speaks in terms of “constitution, powers or procedure”. We would say there are two points to note about that. One is that the language used in section 6 – and, your Honours, may I be forgiven for saying – this is language used ultimately at the request of the States. It should be given its natural meaning.
You will see, however, how easy it is not to do so, how difficult it is to resist the temptation. You will see in the defendant’s submissions on this issue - paragraph 93 of their submissions in B52 - they treat the words as being as if they said, “respecting the constitution, powers and procedure”. The Court’s function, though, if I may say so, with respect of course, is to give effect to the words as used. These are words of constitutional effect and they should be given their meaning.
Your Honours, the second point about it is this, that the change in language from section 5 of the Colonial Laws Validity Act to the current usage was referred to in the passage at Marquet at paragraph 73, to which I earlier referred, as attributable to the change from grant of power to requirement to obey banner and form. If the terms of section 6 are seen as having their present form because of the change in function of section 6, they should be given their now, rather than a former and historical meaning, and your Honours they say what they say.
Could I turn to the next aspect, your Honours? Our submission is that it is apparent that the 2020 Act, in a number of respects, deals with the powers and procedure of Parliament. A starting point, your Honours, is that the 2020 Act refers specifically to matters in and in connection with Parliament in the definition of “protected matter” in section 7(1) – may I go to that, your Honours.
GAGELER J: But, Mr Jackson, as we go there, for the purpose of section 6 of the Australia Act, is the 2020 Act a law, or is every section or every provision of the 2020 Act a law?
MR JACKSON: The 2020 Act, your Honour, we say is a law - - -
GAGELER J: The whole of it?
MR JACKSON: Yes.
GAGELER J: We take it as a whole?
MR JACKSON: Yes, your Honour. Your Honour, I will come a little later to a – but the whole Act, in our submission, is a law. It is a – I admit – I am sorry, your Honour, I am hesitating – the question of form and substance – as a matter of form, it is clearly a law through - from start to finish. No matter how much the provisions of section 8(5) tend to divide it up into bits or to say it has to be – the Court has to divide it up into bits if there is a problem, the reality of it is that these things all appear to be as a practical matter connected.
If one goes to – and there are very considerable difficulties in working out what possible law one would end up with if one took only bits out of it. I will come back to that, your Honour, but could I just say that – we would seek to say that it is a law – a law in toto – a law made by the Parliament. The terms of section 6 speak of a law made:
respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect -
Now, your Honours, one looks to see what there is. It is not as though you have something saying it is dealing on the one hand with trying to farm goannas and on the other hand with sheep – it is something dealing with the course of events and the course of events all tied together. Could I just say, your Honours, the Bill for the Act was dealing with the same subject matter? If you take the parts of the definition of “disputed matter” I went to earlier, together with the parts of “protected matter” I am going to deal with now, one sees that they are all connected.
Your Honours, could I just go then to the definition of “protected matter”. If one looks at paragraphs (b), (c), (d) and (e) of the definition of “protected matter”, they are referring specifically to matters in and in connection with Parliament, and to that one should add paragraph (l). The very thing with which paragraph (d), for example, deals is the procedure of Parliament and it is not as if these definitions are left in the air and the Act actually makes use of them. Could I give an example, in section 20(1) it says that:
Any conduct of the State that is, or is connected with, a protected matter cannot in any proceedings –
(a) be . . . called into question on any basis; or
(b) be the subject of –
any of the remedies referred to in that provision. Your Honours, we would submit that a law that says that the exercise of power by the Parliament is unchallengeable is a law which is about, or dealing with, that power. It may well be capable of dual or multiple characterisations, but that does not render the characterisation of it as being a law about, dealing with, or as we would say, respecting.
GLEESON J: Mr Jackson, I understood you to say to Justice Gageler that the relevant law is the whole of the Act and you are just taking one provision of the Act.
MR JACKSON: Well, I am, your Honour, but there are others I came to too.
GLEESON J: But you are not putting a submission by reference to the whole of the Act as a law respecting the “constitution, powers or procedures”.
MR JACKSON: Well, I am, your Honour. Perhaps I am putting it in two ways. One is that I will be saying that the law is one respecting – not in every word of it, but of course, but the law considered as a whole is a law respecting the matters referred to in section 6.
The second thing we would be saying, your Honours, is that if one treats it as – if one looks at the various provisions of the Act and treats section 6 as applicable to individual provisions, then the result of the application of section 6 to a number of provisions has the result that the Act is a bit like a Swiss cheese, it has a sufficient number of holes to make it inedible, and could not be held to be valid, or I think question 3 of special case would have to be answered “none”.
EDELMAN J: Is your answer then effectively that a law is concerned with, at least in this case, the entirety of the Act. But when one characterises, for the purposes of asking what the law is respecting, the law, then one can look to particular provisions in order to characterise particular or some of the matters in which the law is respective.
MR JACKSON: Yes, your Honour. Your Honour, we would seek to put it this way, but if I can start de minimis, as it were. We would say there is a number of provisions that are ones that are laws falling – that the particular provisions fall directly within section 6.
What we would say, however, is that it is a case where, if one looks at the Act as a whole, there are the ones that are inseparable to the concept – inseparable from the concepts of the Act, so that they cannot be just taken out, leaving a remnant of an Act, but rather the whole Act falls within the characterisation that we would give to it in section 6. Is it a law, respecting the Constitution and powers of proceedings? Yes, it is. Can you describe it as a law doing other things? Probably you could too. But, if it satisfies the section 6 test, it satisfies, we would submit, in toto.
Your Honours, I was going to say that it is not as if the definition – sticking with the relevant part of the definition of “protected matter” for the moment – it is not as if it is just in the air – your Honours will see that in section 20(1) and your Honours will also see that by sections 19(1) and 19(2), the State is to have no liability:
in respect of any loss, or other matter or thing, that is, or is connected with, a protected matter ‑
Section 19(3) had the terms of section 18 , its provisions apply to all “protected matters”. So that if one looks at sections 18, 19 and 20, they contain a number of provisions which give to the powers exercised by the Parliament an additional quality and effect and they are provisions, in our submission, about, or dealing with, or respecting, the powers of the Parliament, and we would say about sections 10 and 11.
Your Honours, we would also refer to sections 17 and 25. No doubt, it may well be said that sections 17(2) and 17(3) are concerned, at least principally, with conduct of the Executive Government, but each of them enlarges the effect otherwise attributable to the exercise of powers by the Parliament and the same provision applies to section 24. And finally, your Honours ‑ ‑ ‑
GAGELER J: Did you say sections 10 and 11? Did I mishear you?
MR JACKSON: Would your Honour excuse me just one moment.
GAGELER J: I am sorry, I might have misheard you.
MR JACKSON: Yes, your Honour, I did refer to sections 10 and 11, your Honour. I simply referred to them without saying anything about them. But what I was saying, your Honours, was that the provisions of sections 10 and 11 are provisions which are, I think I used the expression, about or dealing with and respecting the powers of the Parliament. If one looks at sections 10 and 11, they are all provisions in relation to which the Parliament is exercising powers and has sought to exercise its powers in a way which prevents – I am sorry, I am putting it badly – in a way which deals with the position of the future. Now, I know that parliaments do that all ‑ ‑ ‑
GAGELER J: That is making a law; I mean, that is what parliaments do.
MR JACKSON: Well, they are, your Honour, but the laws that they make are ones which – perhaps I cannot take that further, I may have another go tomorrow. But, your Honours, could I say also, there is section 30 to which I will come in due course dealing ‑ ‑ ‑
GORDON J: Did you say 30, section 30?
MR JACKSON: Yes, 30 and 31.
GORDON J: Thank you.
MR JACKSON: Your Honour, I propose to deal with those separately, if I may. Your Honours, can I come then to the part of section 6 which refers to the manner and form required by law made by the Parliament. That involves two issues. The first of them is what is the provision which imposes the need for a manner and form? The second is, is it a law made by the Parliament? Your Honours, the relevant manner and form provision is clause 32, in our submission. I will come in a moment to whether it is a law made by the Parliament. But can I first go to clause 32 itself which you will find at page 197.
Clause 32 is clearly a provision – if one looks at clause 32(1) in the first place – which contemplates variation of the agreement or of agreements, or of instruments made under the agreement. Any agreed variation has to go before the Houses of Parliaments where it can be disallowed – section 32(2) – and if not disallowed it then has effect – 32(3).
Could I just say, this is not a case, your Honours, where clause 32 has the effect that unless the parties agree – unless we agree – there can be no amendment. It is not a case where we have some kind of veto. That is because the variations contemplated by clause 32 may, in the absence of agreement, be settled by arbitration. Your Honours will see if one goes to clause 42, the arbitration clause, for a moment, that the matters which are to be referred to arbitration include:
Any dispute or difference between the parties . . . as to –
amongst other things:
any matter to be agreed upon between the parties under this Agreement ‑
And, your Honours, variations to the agreement fall into that category. That can be seen from clause 32 itself, your Honours, because clause 32(1) provides that:
The parties . . . may from time to time by agreement . . . add to substitute for cancel or vary all or any of the provisions of this Agreement ‑
And there is no reason why, in terms of clause 42(1) a failure to ‑ ‑ ‑
EDELMAN J: Unless clause 42(1) is read as meaning any matter that is required to be agreed upon, rather than any matter which the parties might wish to agree upon.
MR JACKSON: Could I take your Honour back to clause 32. It empowers the parties:
by agreement . . . add to substitute for cancel or vary all or any of the provisions of this Agreement ‑
Now, one party puts up a proposal, the other does not agree, it is a matter falling directly within the arbitration clause, with respect, and in those circumstances the result of the arbitration would then stand in the place of the decision which otherwise might have been made by agreement under clause 32 and it too would have to go through the parliamentary procedures of clauses 32(2) and (3).
KIEFEL CJ: You are equating a disallowance procedure with a manner and form requirement?
MR JACKSON: I am sorry?
KIEFEL CJ: You are equating a procedure of disallowance with a manner and form requirement? You must be.
MR JACKSON: Not equated, your Honour. What I am seeking to say is that the procedure in clause 32 added to clause 42 is one which is the method which is provided for and in that sense is the manner and form, as your Honour has put to me, allowing for amendment of the agreement. That is how it goes. But if the parties were to agree, it still has to go before Parliament. If the parties do not agree and go to arbitration, the result goes before Parliament.
KIEFEL CJ: It has to go before Parliament so that the agreement reached between the parties can have the benefits that the 2002 statute gave to it.
MR JACKSON: Can have the benefit of statutory force, yes.
KIEFEL CJ: It is that statute which must be the foundation for clause 32 having itself a statutory effect.
MR JACKSON: Quite, your Honour, yes.
KIEFEL CJ: In that respect it is sections 4(3) and 6(3)?
MR JACKSON: Yes, 4(3) and 6(3) and also, your Honour, the Government Agreements Act.
KIEFEL CJ: Just concentrating on the 2002 Act, speaking for myself I have a little difficulty seeing that the subsection (3) of sections 4 and 6, which says that:
the Agreement operates and takes effect despite any other Act or law –
directly gives it statutory force.
MR JACKSON: Your Honour, I am going to come to that in just a moment, if I may.
KIEFEL CJ: I will not take you out of your sequence then.
MR JACKSON: Thank you. Your Honours, what I was going to say, the question which arises as your Honour has put to me is whether in a sense the course provided by clause 32 can be regarded as a law made by the Parliament of Western Australia itself, and one does need to start with the provisions of the legislation in sections 4 and 6 to which your Honour has referred.
Your Honours, could I go first of all to section 4(1). Section 4(1) provides that the making of the agreement is ratified. “Ratified” in the ordinary course seems to mean giving retrospectively lawfulness to promises which could not lawfully otherwise have been made by the Premier. By subsection (2), the implementation of the agreement is stated to be authorised. That appears to be of rather similar effect to ratification, except that it looks to the future.
But one comes then to section 4(3) which deals with the status of the agreement. It provides that it is to operate and take effect despite any other Act or law, and there is section 3 of the Government Agreements Act. Your Honours, dealing with provisions of that kind generally first, a view which has been adopted is that a distinction can be drawn between statutes which merely authorised or ratified or make valid a contract and those which give the contract the force of law.
The issue was discussed in Sankey v Whitlam (1978) 142 CLR 1, volume 15 of the joint book at tab 105. The test there developed, or the test there referred to, can be seen for example in Justice Stephen – I intend to give two references: Justice Stephen at page 77, and Justice Mason at page 89 of the original print, that is, that the statute should expressly enact that “the scheduled agreement shall be observed by the parties”. Your Honours will see that, if I could go to page 77. Your Honours will see Justice Stephen – it commences about point 4 on the page:
With this quite limited effect may be contrasted that of statutes which not only schedule agreements but expressly enact that the terms of the scheduled agreement shall be observed by the parties.
There is a reference to Lord Cairns and his Honour goes on to say – to put it shortly, the differences between those provisions, put neutrally, which require that there be performance or observance, and those which do not say that can be perhaps better seen ‑ ‑ ‑
GORDON J: The model used sometimes, is it not, is language which reads something like – and the statute provides that the agreement operates, or is given a force of law, as though it were an enactment of this Act?
MR JACKSON: Yes, that is ‑ ‑ ‑
GORDON J: That is not the form adopted here, is it?
MR JACKSON: No, no, it is not, your Honour, no, it is not.
KIEFEL CJ: The form that is adopted here says it operates despite any other Act or law, which suggests that its purpose is to overcome any obstacles posed by other statutes.
MR JACKSON: Well, that inevitably, in our submission, means amendment of a law, either as to area of operation, subject matter operation ‑ ‑ ‑
KIEFEL CJ: But is not the question at this point in your argument whether or not an Act which is said to operate in this way is one which gives statutory force to what would otherwise appear to be a contractual arrangement?
MR JACKSON: Well, your Honour, that is – I would like to develop that, if I may, that is what I wanted to do. I was just going to refer to what was said by Justice Aickin, for example, at page 105, last paragraph on the page, where he said, at the bottom of the page:
There is, however, a long established distinction between, on the one hand, legislation which merely gives validity to a contract and makes its provisions binding on the parties . . . and on the other hand, legislation which imposes a statutory obligation on the parties to carry out the terms of the contract, a provision which gives to those terms themselves the force of law.
Now, you will see he develops that a little. Could I refer also to what was said to the same effect by Justice Mason at page 89 and also Acting Chief Justice Gibbs at pages 30 and 31. But the terms of the 2002 Act, as amended by the 2008 Act, do provide, your Honours, for observance by the parties, and may I give some examples. If one goes to clause 5(1), page 151 in the special case book, Mineralogy is required to:
keep the State fully informed as to the progress and results of the field –
and office studies:
and other matters necessary to enable it and any Co‑Proponent to finalise and to submit the proposals referred to –
Under clause 5(3), Mineralogy is obliged to:
co‑operate with the State and consult with the –
State officers regarding the matters in clause 5(c). Under subclause (4) of clause 5A:
As soon as practicable after the variation date Sino Iron –
is to engage in the activities referred to in clause 5A(4)(a), and then is to prepare a plan, referred to in clause 5A(4)(b), and then, pursuant to clause 5A(4)(c), submit it to the Minister. There is provision in clauses 5A(5) and (6) for alteration to the plan by the Minister or by arbitration, but subclause (7) of clause 5A provides that Sino is obliged to:
implement the plan approved or deemed to be approved by the Minister –
Clause 6(1) in its first long sentence required that there be detailed proposals for a first project. Thereafter, there might be proposals for new projects. But clause 6(2) specified what each such proposal should deal with, in considerable detail. Under clause 7(6), the project proponents are required to implement approved proposals and there is also a requirement that:
the Project Proponents shall ensure continuous operation of the Project.
Now, your Honours, clause 8 recognises that there may be circumstances where the proponents wish to go beyond what has already been approved under clauses 6 and 7. Clause 8(2) recognises, in its final sentence, that there is an obligation to implement such proposals. Under clause 21(1), page 187, Mineralogy is obliged to develop and maintain:
port facilities for the Projects in accordance with approved proposals –
Under clause 22(2), it is Mineralogy which is to construct a railway if that is required for an approved project. Under clause 22(3), it is to keep the railway in operation. By clause 31(2) – it is the last provision I will refer to in this regard – the proponents “at all times” are to:
be and remain liable for the due and punctual performance of all the covenants and agreements –
et cetera. Could I refer also, your Honours, to the force majeure provisions in clause 33, which assume the existence of an obligation on a party to perform. Could I refer particularly to clauses 33(1) and 33(3)(c). But in any event, your Honours, if one looks at the test in the case to which I referred earlier, there are the enabling enactments – and may I come directly to those now.
In our submission, they make it apparent that their provisions give the force of law, statute law, to the provisions of clause 32. Your Honours, I intend, if I may, to go through those provisions and briefly to the decisions of the State courts relied on by the defendants and interveners as giving them a rather weaker or more insipid operation than is conveyed by their words.
Could I make one preliminary remark before doing so, and it is this. Whilst parties to a contract governed by the general law may agree to various terms, that cannot be done under the agreement by simple agreement to vary. It cannot be done because of the need to follow the procedure of clause 32(2). If a party sought to rely on a variation which had not been through the procedure contemplated by clause 32 the amendment would be of no effect. Your Honours, if one looks at it, that would be because the agreement or the obligation to comply with the agreement does have the force of law.
KIEFEL CJ: Would that be because it was not carrying to effect what the parties had agreed the procedure was to be? Why is it any more than that?
MR JACKSON: Well, why it is more, your Honour – because clause 32 is one of the provisions to which the earlier provisions of the Act itself speaks and it says that it has the force of law.
KIEFEL CJ: This is assuming your sections 4 and 6 argument to be correct?
MR JACKSON: Yes, your Honour, yes. Your Honours, could I just mention in relation to the point I was making - - -
GLEESON J: Mr Jackson, does not clause 5 of the legislation tell against your argument by giving the State power in accordance with clause 27 of the agreement?
MR JACKSON: Did your Honour say clause 5?
GLEESON J: Section 5 of the agreement says that:
The State has power in accordance with clause 27 of the Agreement.
Is that not unlimited?
MR JACKSON: Your Honour, I am going to come to that, if I may, in just a moment, because what I will be seeking to say about it is that when the power to amend by a statute is to be reserved, it is done so specifically - specifically, but specific to limited cases. But, your Honour may I come to that in just a moment.
I am just going to mention that, your Honour, there is a discussion by Justice Finn, when on the Federal Court, of the difference between the ability to agree, notwithstanding an agreement not to agree in effect in a contract not governed by statute and one there is – you will see that in GEC Marconi Systems (2003) 128 FCR 1 at 61, paragraph 216 – your Honours, I do not intend to go to it.
Your Honours, we would say that clause 32 is a mandatory requirement imposed by law that the parties are not free to ignore or vary by their own oral agreement. Could I go then to sections 4(3) and 6(3) and section 3 of the Government Agreements Act. Your Honours, each of sections 4(3) and 6(3) going first to them, says that the agreement is to operate and take effect despite any other Act or law.
It is apparent, we would submit, that sections 4(3) and 6(3), in saying that the agreement is to have effect despite any other Act or law means that the agreement is to have in the area which it covers an effect of statute – or an effect of amending a statute. Your Honours, as we have said in our written submissions, your Honours will see paragraph 92, the Act makes very express amendments to other legislation when it seeks to do so, and we then refer to clauses 10(3):
not be required to comply with the expenditure conditions imposed by or under the Mining Act -
Clause 20(6), the modification of the Land Administration Act, clause 20(7), the modification of the Aboriginal Heritage Act and clause 41(1), the exemptions from stamp duty.
KIEFEL CJ: What do you get out of that? These provisions are consistent with the operation of sections 4(3) and 6(3) because they say these statutes will not apply to require from the parties – the companies in particular – what they would otherwise require.
MR JACKSON: Your Honour, what those provisions do first of all is to say that there is a change in the operation of those statutes and that they are statutes which – I am sorry, I will start again. There is a change in the operation of the statutes and that so far as the law in the areas covered by the agreement is concerned, whether it be subject matter or geographical, the law is as provided by the agreement. Your Honours will see that ‑ ‑ ‑
KIEFEL CJ: It is not the law that is provided by the agreement. Those words do not appear in those sections. It is that the agreement is not affected by those other statutes. It operates despite ‑ ‑ ‑
MR JACKSON: But, your Honour, the terms of 4(3) and 6(3) say that the agreement operates and takes effect despite any other Act or law. That must involve, we would submit, there being variations of the law. And could I say, your Honour ‑ ‑ ‑
KIEFEL CJ: Of other statutes, but the question here is: how do those provisions give statutory force to clause 32?
MR JACKSON: Your Honour, if one were to go – first of all, we are dealing with 4(3) and 6(3). What they provide, in our submission, is that they say that the variation agreement operates and takes effect despite any Act.
Having said that, your Honour, what it is saying is that in the areas covered by the agreement or variation agreement, the result is that the law is as provided for by the variation agreement – I am sorry, your Honour, I keep saying that and I should not – is provided by the agreement. And that that is so, in our submission, is accentuated, if I could put it that way, by the terms of the Government Agreements Act.
Your Honours, the central provision of the Government Agreements Act is section 3, and your Honours will see that section 3(a) says that:
each provision of a government agreement –
takes effect:
according to its terms notwithstanding any other Act –
Now, your Honours, that must have the effect in it, we would submit, of modifying to the extent of the area, the geographical subject matter covered by it, any existing statute. Subsection 3(b) says that:
any purported modification of any other Act or law contained, or provided for –
in a provision of a government agreement:
shall operate and take effect so as to modify that other Act or law for the purposes of the Government agreement, and shall be deemed to have so operated and taken effect from its inception, according to its terms notwithstanding any other Act or law.
STEWARD J: Mr Jackson, could I ask is it the case that what, for example, exempts the project from stamp duty, is it the actual clause of the agreement or is it sections 4(3) and 6(3) and section 3 of the Government Agreements Act?
MR JACKSON: Well, it has to be the Act, your Honour.
KIEFEL CJ: Why so? The agreement precedes the Act; the Act, on your argument, is just giving effect to it.
MR JACKSON: But assuming, your Honour, that there is no power to exempt in the revenue statute and that what is being done by the – sorry, your Honour – and what is being done by the agreement and then by the empowering statute is to say that the operation of the revenue statute is altered in this way. That has to be done pursuant to statute, your Honour, your Honour, with respect. Whether it be revenue or whether it be ‑ ‑ ‑
STEWARD J: But is it by reason of the agreement and what it says or is by reason of these provisions of the 2002 Act and the Government Agreements Act?
MR JACKSON: Well, it is because of the ‑ ‑ ‑
STEWARD J: Or do you say it is both?
MR JACKSON: Well, it is both in a sense. It arises because of the agreement. Having arisen because of the agreement it could not be given efficacy without there being a statutory backing. It is a question then of what the statutory backing does, and the statutory backing, in our submission, is one where you see, for example, in section 3(b) of the Government Agreements Act, that the terms of the government agreement modify.
EDELMAN J: Mr Jackson, is there any suggestion that any other Act or law affected the operation of the clause 32?
MR JACKSON: Affected clause 32?
EDELMAN J: Yes.
MR JACKSON: I think not, your Honour.
EDELMAN J: So, in their terms, section 4(3) and section 6(3) do not affect clause 32 to the extent that they would remove any obstacle to the operation of clause 32?
MR JACKSON: No, your Honour, there is a kind of double entrenchment which comes about because clause 32 is itself part of the agreement. For example, section 4(3) says that the agreement takes effect “despite any other Act or law” and one of the things it is talking about is section 32 itself.
Your Honour, I am going to mention that a little later if I may, the double entrenchment aspect, but one has a situation where, whether it be by the operation of 4(3) and 6(3) or 3(b), you have a provision where clause 32 is itself a provision which is one which has the same status as other provisions of the agreement, whatever correctly that status might be.
GORDON J: It is interesting, is it not, because clause 32 is directed to variation of the agreement by the parties to the agreement and of course the parties to the agreement are not the State, they are the Executive, as I read, not the legislature.
MR JACKSON: The State is a party, your Honour.
GORDON J: It is not the legislature and yet you would have us read 32 as being in effect a fetter directed at legislative amendment by Parliament.
MR JACKSON: I am sorry, your Honour, but the State is a party to the agreement.
GORDON J: The legislature is not. Clause 32 is directed at variations by parties to the agreement, which are the then Premier and the relevant entities.
MR JACKSON: Well, the opening words, I would say, he is acting on behalf of the State, of course.
GORDON J: But you would have us read 32 as, in effect, a fetter on Parliament itself, by reference to 4(3) and 6(3).
MR JACKSON: Well, your Honour, what I would say is that Parliament is given the power by section 6 of the Australia Act to impose fetters on itself if it chooses. One of the ways of doing so is by what has been done in relation to clause 32, it has reserved to itself the ability of either House of Parliament to, in effect, knock out whatever is agreed, but subject to that, it is capable of doing so, but having done so – I am sorry, capable of doing so. If it is to do so, it has to follow the manner and form.
Could I just say, your Honours, if one goes to section 3(b) of the Government Agreements Act, it says, in terms, that the provision of the government agreement modifies the other Act or law, and for the purposes of the agreement, it is taken to have operated, et cetera. And, your Honours, there is no reason, in our submission, why, in consequence of those provisions, the agreement should not be regarded as a law made by the Parliament. In our submission ‑ ‑ ‑
KEANE J: Can Parliament repeal section 3(b)?
MR JACKSON: Yes, it could.
KEANE J: Of the Government Agreements Act?
MR JACKSON: No reason why it could not, I do not think, your Honour.
KEANE J: Is it not section 3(b) that gives effect to an agreement so that it operates as a law?
MR JACKSON: I am sorry?
KEANE J: Is not the effect of section 3(b) to give an effect to that which is juridically an agreement to give it an operation that trumps other laws, but it is section 3(b) itself that gives it that force?
MR JACKSON: Well, your Honour, it depends on the particular case. By that I mean, if you have a case like this where not only do you have section 3(b), but particular reference to section 3 in the statute, governing the particular agreements, and also provisions of the particular agreements, it is probably both.
KEANE J: So Parliament can repeal section 3(b) without needing to go through some manner and form procedure, but it cannot amend the agreement?
MR JACKSON: Well, your Honour, it must depend very much on the particular legislation.
KEANE J: Well, look at the legislation here. Your contention is, Parliament cannot override clause 32 but yet it could repeal ‑ without any limitation at all, it could repeal section 3(b) of the Government Agreements Act, presumably it could repeal section 4.
MR JACKSON: But it has not, your Honour.
KEANE J: But it could.
MR JACKSON: Well, your Honour, that is possible. May I think about that, your Honour, and give your Honour ‑ ‑ ‑
EDELMAN J: Well, your case, ultimately, is a case of single entrenchment, not double entrenchment, and because it is not doubly entrenched, Parliament could avoid the consequences of single entrenchment by repealing section 3, in your case, or section 4 and section 6 of the primary Act.
MR JACKSON: You have got to get rid of the lot, really.
GAGELER J: Mr Jackson, this is a question of absolute detail, which you might take on notice, but to be a government agreement, for the purpose of the Government Agreements Act, the agreement has to meet the description in paragraph (a) of section 2. It is not apparent to me, at least on your written submissions, how this agreement meets that description, which appears to turn on administrative arrangements from time to time.
MR JACKSON: I think, your Honour, we may have referred to that at our written submission by referring to the fact that it could not work without – the agreement could not work without intervention of the Minister satisfying those requirements, but I ‑ ‑ ‑
GAGELER J: But there must be either an administrative arrangements order, or whatever the instrument is called in Western Australia, or a proclamation, I think you would need one or the other to get into the provision.
MR JACKSON: Yes. Your Honour, I had not thought there was any dispute about ‑ ‑ ‑
GAGELER J: There may not be.
MR JACKSON: ‑ ‑ ‑ the operation of that, but if I might take that on notice. Your Honours, I was just going to refer to ‑ ‑ ‑
KIEFEL CJ: That might be a convenient time, unless you wish to finish a topic, Mr Jackson.
MR JACKSON: Your Honour.
KIEFEL CJ: The Court will adjourn until 10.00 am tomorrow.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 16 JUNE 2021
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