OZ Minerals Ltd and Commissioner Of State Revenue - [2012] WASAT 188

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STAMP ACT 1921 (WA)
TAXATION ADMINISTRATION ACT 2003 (WA)

CITATION: OZ MINERALS LTD and COMMISSIONER OF STATE REVENUE [2012] WASAT 188

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: 4 JULY 2012
WRITTEN SUBMISSIONS 25 JULY 2012 AND 15 AUGUST 2012

DELIVERED : 19 SEPTEMBER 2012

FILE NO/S: CC 1397 of 2011

BETWEEN: OZ MINERALS LTD
First Applicant
OZ MINERALS AGINCOURT PTY LTD
Second Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent

Catchwords:

Stamp duty Change of controlling interest Whether company is a landholder Mining tenements Right of occupancy Whether rights are similar Under the law of another jurisdiction Jurisdiction of the Tribunal Tribunal to consider the limits of its own authority when standing in the shoes of a decisionmaker

Legislation:

Interpretation Act 1984 (WA), s 5
Iron Ore (Hamersley Range) Agreement Act 1963 (WA), cl 2
Iron Ore (Wittenoom) Agreement Act 1972 (WA), cl 2, cl 4, cl 5, cl 32(2)
Mining Act 1904 (WA), s 276
Mining Act 1978 (WA), s 5, s 8, s 40(2), s 46, s 66(b), s 66(c), s 75(7), s 50(1), s 70A, s 70C, s 70C(2A), s 85(1)(a), s 85(1)(b), s 87(1), s 91(b)
Stamp Act 1921 (WA), s 76, s 76AB, s 76AN, s 76ATG, s 76ATH, s 76ATI, s 76ATI(1), s 76ATI(2)
State Administrative Tribunal Act 2004 (WA), s 46(1)
Taxation Administration Act 2003 (WA), s 40

Result:

Application upheld
Decision of respondent set aside
Reassessment ordered

Category: B

Representation:

Counsel:

First Applicant             :     Mr D Williams QC and Mr A Willinge
Second Applicant         :     Mr D Williams QC and Mr A Willinge
Respondent:     Mr S Wright and Mr B Prentice

Solicitors:

First Applicant             :     Ernst & Young Law
Second Applicant         :     Ernst & Young Law
Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Broken Hill South Limited v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60
Nicholas v State of Western Australia (Supreme Court WA, unreported 23 September 1971, LIB 947)
Nicholas v State of Western Australia [1972] WAR 168
Re Michael; ex parte WMC Resources Limited (2003) 27 WAR 574
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Victrawl Pty Ltd v Telstra Corporation Limited (1994) 183 CLR 595

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 30 March 2007, Oxiana Agincourt Holdings Ltd acquired a controlling interest in a company then named Agincourt Resources Ltd.
Under the Stamp Act 1921 (WA), which was then in force, a company in which the controlling interest changes may be liable for stamp duty if it is a 'listed landholder corporation'. Under the Act, a company is a landholder if it owns land in Western Australia valued at $1 million or more and if 60% or more of that company's assets comprise land in Western Australia and elsewhere.
Land is defined in the Act to include mining tenements, rights of occupancy under some State Agreements and 'similar' tenements, rights and interests held elsewhere in the world.
Agincourt Resources at the time of the acquisition held, through one of its subsidiaries, certain mining interests in Indonesia. The Commissioner of State Revenue included those interests when valuing Agincourt Resources' 'land' and other assets. That led the Commissioner to assess duty of approximately $7.5 million on the share acquisition. Agincourt Resources objected, saying that its mining interests in Indonesia, because of their nature, did not fall within the definition of 'land'. The Commissioner disallowed the objection and Agincourt Resources (along with its parent company, OZ Minerals Ltd) made an application to the Tribunal for a review of that decision.
The Tribunal examined the nature and characteristics of the Indonesian mining interests and considered that those interests were not similar to the mining tenements or rights of occupancy specified in the Act. The Tribunal therefore ordered that the assessment be set aside and that duty be reassessed.

Facts

The facts in this matter are not in dispute and have been drawn from the statement of agreed issues and facts dated 2 March 2012 and filed on behalf of the parties on 6 March 2012.

Acquisition of Agincourt

The first applicant is OZ Minerals Ltd (formerly named Oxiana Ltd) (OZ Minerals). The second applicant, Oxiana Agincourt Holdings Ltd (Oxiana) is a wholly owned subsidiary of OZ Minerals. On 29 January 2007, Oxiana made an offer to the shareholders of Agincourt Resources Ltd (now named OZ Minerals Agincourt Pty Ltd) (Agincourt) to acquire all of the issued share capital of Agincourt.
On 30 March 2007, Oxiana acquired 93.5% of the shares in Agincourt and by 25 May 2007, Oxiana had become the holder of all of the shares in Agincourt.
At all relevant times, PT Agincourt Resources (PTAR) was a subsidiary of Agincourt. PTAR was incorporated under the laws of the Republic of Indonesia on 14 April 1997. PTAR, formerly and then named PT.Damau Toba Mining, is a party to a document entitled Contract of Works dated 28 April 1997 between the Government of Indonesia and PTAR (Martabe CoW).
Assets held by Agincourt and its subsidiaries (including PTAR) at the relevant time included applications for exploration licences, mining leases located in various Australian jurisdictions, mining interests in Guinea and Namibia in Africa and the rights and interests granted or conferred under the Martabe CoW.
Agincourt was at the relevant time entitled to land situated in Western Australia, the unencumbered value of which is not less than $1 million.
At the relevant time, the shares in Agincourt were quoted on the Australian Stock Exchange.

The respondent's decision and the application to the Tribunal

On 22 October 2008, the respondent (Commissioner) assessed stamp duty on the acquisitions made by Oxiana on 30 March 2007 in the amount of $7,568,609.40 (Assessment). OZ Minerals paid the Assessment on 21 November 2008.
On 22 December 2008, an objection was lodged against the Assessment and on 8 July 2011 the Commissioner disallowed the objection.
OZ Minerals under s 40 of the Taxation Administration Act 2003 (WA) applied to the Tribunal on 2 September 2011 for a review of the Commissioner's decision.
On 6 December 2011, the Tribunal ordered that Agincourt be added as an applicant to the proceedings and the final hearing took place on 4 July 2012.

The law

Section 76ATG of the Stamp Act 1921 (WA) (Stamp Act) provides that if a person acquires a controlling interest in a listed landholder corporation, that corporation shall within two months after the date of acquisition lodge a statement with the Commissioner in respect of that acquisition. That statement is chargeable with duty; s 76ATH of the Stamp Act.
Section 76ATI(1) of the Stamp Act defines 'listed landholder corporation', being a body corporate registered outside Western Australia listed on a recognised financial market and being a landholder within the meaning of subsection 2. Subsection 2 of s 76ATI provides:
A corporation is a landholder for the purposes of this Division if at the time of an acquisition of a controlling interest
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a coowner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the corporation is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (4),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the corporation at the time of the acquisition of the controlling interest but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
Section 76 of the Stamp Act defines 'land' to include a 'mining tenement'. That section also defines 'mining tenement' as follows:
mining tenement means
(a)a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act or the Mining Act 1904;
(b)a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978; and
(c)a tenement, right or interest that is
(i)similar to a tenement or right referred to in paragraph (a) or (b); and
(ii)held under the law of another State, a Territory, the Commonwealth or another jurisdiction;
Paragraph (a) of that definition refers to a mining tenement held under the Mining Act 1978 (WA) (1978 Act). A mining tenement is defined in s 8 of the 1978 Act as follows:
'Mining tenement' means:
… a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired;
The reference in that definition to the 'repealed Act' is to the Mining Act 1904 (WA) (1904 Act). The words 'or by virtue of the repealed Act' give rise to the operation of the transitional provisions in the second schedule to the 1978 Act which provide for specified mining tenements under the 1904 Act to continue in force for a period of time following the commencement of the 1978 Act.
Paragraph (a) of the definition of 'mining tenement' in the Stamp Act also refers to a mining tenement held under the 1978 Act 'being a mining tenement within the meaning of … the 1904 Act'.
Paragraph (b) of the definition of 'mining tenement' in the Stamp Act refers to a mining tenement or right of occupancy continued in force by s 5 of the 1978 Act. Section 5 of the 1978 Act provides as follows:
(1)Nothing in this Act shall affect the provisions of any Act in force on the commencing date that approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement.
(2)Notwithstanding anything in the Second Schedule, a party to an agreement referred to in subsection (1)
(a)who is the holder of an existing mining tenement under that agreement may continue, subject to that agreement, to exercise the rights conferred by that mining tenement; or
(b)to whom an existing right of occupancy has been granted under section 276 of the repealed Act or that agreement, or under both section 276 of the repealed Act and that agreement, as the case requires, may continue, subject to that agreement, to exercise that right of occupancy,
as though the repealed Act had not been repealed.
(3)Subject to the relevant agreement referred to in subsection (1), a person may, in accordance with this Act, apply for a mining tenement in respect of an area or part thereof that is the subject of a mineral lease granted in accordance with that agreement.
Again, the reference in s 5 of the 1978 Act to the 'repealed Act' is to the 1904 Act.
Section 276 of the 1904 Act provides as follows:
[The] Minister, and, pending a recommendation to the Minister, a Warden, may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.
The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit.
'Crown land' is defined under s 3 of the 1904 Act to mean:
All land of the Crown which has not been dedicated to any public purpose, or reserved, or which has not been granted in fee or lawfully contracted to be so granted, or which is not held under lease for any purpose except pastoral and timber purposes. The term includes commons, State forests, timber reserves, and any reserve declared by the Governor to be subject to mining, and all land between high and lowwater mark on the seashore and on the margin of tidal rivers, and below lowwater mark.
An agreement referred to in s 5 of the 1978 Act (State Agreement) is, as s 5 provides, an agreement ratified by an Act of Parliament and entered into between the State of Western Australia and another party. It is scheduled to the relevant ratifying Act and it operates and takes effect despite the provisions of any other Act or law. However, its terms are contractual and binding only on the parties to it and it is not given statutory force; see Re Michael; ex parte WMC Resources Limited (2003) 27 WAR 574 at 26.

The agreed issues

The parties have agreed that the determinative issues in this matter are as follows:
1)Was Agincourt a landholder as at 30 March 2007 within the meaning of that term in s 76ATI of the Stamp Act? Agincourt will only be a listed landholder if the contractual rights held by PTAR pursuant to the Martabe CoW as at 30 March 2007 fall within the definition of 'mining tenement' in s 76 of the Stamp Act. Paragraph (c) of that definition is the only paragraph that may apply.
The parties say that this raises the following subissues:
a)As at 30 March 2007, was the Martabe CoW, or any right or interest granted or conferred by the Martabe CoW, a 'tenement, right or interest'?
b)As at 30 March 2007, was the Martabe CoW, or any right or interest granted or conferred by the Martabe CoW, similar to a tenement or right referred to in (a) or (b) of the definition of 'mining tenement' in s 76 of the Stamp Act?
c)As at 30 March 2007, was the Martabe CoW, or any right or interest granted or conferred by the Martabe CoW, held under the law of Indonesia?
2)If the decision on issue 1 is yes, is the assessment issued by the Commissioner on 22 October 2008 unconstitutional and invalid on the ground that it is beyond the power of the Western Australian legislature to impose under the Stamp Act a liability that is dependent upon the characterisation of an item of property that has no territorial connection with the State of Western Australia?

Mining in Indonesia

The parties have agreed the following brief summary of the relevant principles of Indonesian law which may apply:
•Indonesian law recognises three main forms of company, one of which is a 'PMA' company, being a company which has foreign shareholding.
•Indonesian law also recognises different forms of mining rights, including:
a)mining authorisations (KPs) which can only be held by entities that are 100% Indonesian owned or controlled; and
b)contracts of works (CoWs) which are entered into between the Government of Indonesia and PMA companies.
•There are differences between CoWs and KPs, including the following:
a)a CoW is a legally binding agreement under which the parties are required to submit disputes to an agreed dispute resolution mechanism. There are laws relating to CoWs but these only set out the procedure for the application of a CoW and do not specify the content of a CoW; and
b)KPs are issued at the discretion of the Indonesian Government and the rights they confer are defined by legislation (with no right to sue for breach of contract).
•CoWs are subject to the doctrine of lex specialis and are not subject to subsequent changes to the general law and regulations of Indonesia.
•CoWs have followed a series of evolving standard form agreements.

Expert evidence

Expert evidence was provided to the Tribunal by Susandarini, an Indonesian citizen and an advocate licensed by the Indonesian Advocates Association. She is a partner of Norton Rose Australia and based in Jakarta. She says that she has acted on numerous mining projects in Indonesia, including advising on acquisitions, permitting, financing and joint ventures. She also says that she acts for 'several holders of' CoWs.
An expert witness statement dated 4 April 2012 was filed by the first and second applicants (EWS) and the first and second applicants also filed a supplementary expert witness statement dated 23 July 2012 (EWSS). Counsel for the Commissioner confirmed at the hearing of this matter that the Commissioner accepts the expert witness's opinions contained in the EWS (T:13; 04.17.12). However, the Commissioner does not accept some of the evidence provided in the EWSS and because the Commissioner did not have the opportunity to crossexamine the witness on her statements contained in the EWSS it is appropriate that I give it less weight than I give to the EWS.
From the EWS, it is possible to draw the following further points in respect of mining rights in Indonesia as at 30 March 2007 and subsequently:
•As at 30 March 2007, the key legislation in Indonesia with respect to mining was a law passed by the People's Representative Assembly called the Previous Mining Law.
•Implementing regulations were issued under the Previous Mining Law, called the Previous Mining Law Implementation Regulations.
•As a result of the Previous Mining Law and the Previous Mining Law Implementation Regulations, Indonesia recognises three ways by which mining may be conducted in Indonesia, being:
1)KPs;
2)CoWs; and
3)Coal Contracts of Work.
•KPs can only be held by 100% Indonesian owned companies, or other forms of legal entity which are 100% Indonesian controlled and Indonesian nationals. A KP is in the nature of a licence to conduct mining activities.
•CoWs were entered into by the Government of Indonesia with companies that have any amount of foreign shareholding, known as foreign investment companies. A CoW is separate to a KP as a means of conducting mining, in the nature of an agreement between the Government of Indonesia and the relevant foreign investment company which contemplates that mining will be conducted in a particular area, subject to the relevant foreign investment company fulfilling its obligations under the CoW.
Under a CoW, the Government of Indonesia appoints the foreign investment company as the sole contractor of the Government of Indonesia. The foreign investment company is granted the sole right to explore, mine, process, store, transport, market, sell and dispose of minerals within the particular area of land specified in the CoW (Contract Area), subject to fulfilment of certain conditions, including payment obligations, imposed by the Government of Indonesia.
•The process for authorisation of a CoW requires the consent of:
1)the President;
2)the Parliament of Indonesia; and
3)a board known as the Capital Investment Coordinating Board.
•The Previous Mining Law only recognises the authority of the Government of Indonesia to execute CoWs, and neither the Previous Mining Law nor the Previous Mining Law Implementing Regulations deal with the content of a CoW itself.
•Since 30 March 2007, Indonesia's mining regulatory regime has been subject to significant change. The New Mining Law was passed by the People's Representative Assembly and came into effect on 12 January 2009, replacing the Previous Mining Law in its entirety. The New Mining Law created a new form of mining right, being a Mining Business Permit. The expert witness says that a Mining Business Permit 'is closer in legal concept to a KP, being a licence, rather than a CoW … which is an agreement …' (EWS para 42).
•The expert witness says that the New Mining Law initially created some confusion with respect to the status of existing KPs and CoWs. As a result, the Ministry of Energy and Mineral Resources confirmed that all KPs were required to convert to Mining Business Permits and CoWs would be honoured by the Government of Indonesia provided that the relevant holder complied with 'certain requirements' (EWS para 45).
•The Government of Indonesia has further confirmed by way of regulation that CoWs in existence at that time would remain valid for their stated term.

The Martabe CoW

The Martabe CoW is in both English and Indonesian and it provides that 'both texts are valid'. It comprises a preamble, some recitals, 32 'Articles' and a number of annexures.
Under Article 2, PTAR, then named PT.Danau Toba Mining, is appointed the sole contractor by and for the Government of Indonesia to explore for certain minerals in the relevant Contract Area, to mine any deposited minerals, to process, store and transport by any means certain minerals extracted therefrom and to market, sell or dispose of all the products of such mining and processing inside and outside Indonesia.
Article 3, headed Modus Operandi, sets out the different stages of the agreement and says that PTAR 'contemplates a program' commencing with a general survey of the Contract Area, followed by exploration on selected areas. The whole program is divided into five periods or stages, referred to as the general survey period, the exploration period, the feasibility study period, the construction period and the operating period.
Article 4 describes the relevant Contract Area, which initially covers approximately 659,000 hectares of land, part or all of which PTAR may relinquish by request. PTAR must, however, reduce the Contract Area to 75% of its original area before the end of the general survey period and to 50% before the second anniversary of the commencement of the exploration period. Before the end of the feasibility study period, PTAR must reduce the Contract Area to 25% of its original area.
Article 5 sets out PTAR's rights and obligations during the general survey period and provides that, within six months after the date of signing of the CoW, PTAR is to conduct a survey of the Contract Area to determine, within 12 months, in what parts of the Contract Area deposits of minerals are most likely to occur.
Article 6 deals with the exploration period, which commences upon completion of the general survey and during which PTAR 'shall engage in an Exploration program'. The Exploration program includes such detailed geology, geophysics, geochemistry and sampling and drilling activities as PTAR considers appropriate. PTAR can discontinue exploration in any part or parts of the Contract Area on the grounds that such exploration is no longer commercially feasible or practical. If at any time during the exploration period PTAR discovers one or more deposits of minerals of apparent commercial grade and quantity and decides to proceed with further evaluation, it must submit a written notice to such effect and enter into a feasibility study period with respect to such exploration area.
Article 8 deals with the feasibility study period and provides that at any time during that period PTAR may make an application to proceed with the construction of a mine and facilities. I will make further reference to the rights and obligations of PTAR during the feasibility study period later in these reasons.
Article 9 provides that once design and timing conditions have been approved, PTAR can commence construction of its required facilities.
Article 10 then provides that upon completion of construction, PTAR 'shall commence operation of the [balance of the Contract Area remaining at the end of the feasibility study period] or part thereof for which such facilities have been constructed'.
Article 18 provides for access and other rights and again I deal with that Article in more detail later in these reasons.
The expert witness says that 'the various stages of the [Martabe CoW] are distinct and mutually exclusive, that is, the general survey stage comes to an end before the commencement of the exploration stage, which in turn terminates before the feasibility study stage' (EWS para 78). However, because PTAR is permitted to proceed to the next stage of the operation in respect of parts of the Contract Area without affecting its rights in respect of the remaining parts, it would seem possible for PTAR to be at different stages of the operation in respect of different parts of the Contract Area at any given time.
In any event, the parties have agreed that as at 30 March 2007, the Martabe CoW was in the feasibility study period and that the general survey period and the exploration period were both at an end.

The first issue was the Martabe CoW, or any right or interest granted or conferred by the Martabe CoW a 'tenement, right or interest'?

The applicants concede that PTAR had rights under the Martabe CoW at 30 March 2007. They say, however, that these rights were contractual and that the words 'tenement, right or interest' mentioned in paragraph (c) of the definition of 'mining tenement' in the Stamp Act refer to interests and rights of a proprietary nature, not rights of a merely personal or contractual nature.
I can see no reason to conclude that 'right or interest' should be limited to proprietary rights or interests. However, even if those words were to be read in that way, there is clear authority for the view that contractual rights may themselves be proprietary: see Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373.
I answer this question in the affirmative.

The second issue was the Martabe CoW or any right or interest granted or conferred by the Martabe CoW similar to a tenement or right referred to in paras (a) or (b) of the definition of 'mining tenement' in s 76 of the Stamp Act?

The meaning of 'similar'

The word 'similar' where it appears in para (c)(i) of the definition of 'mining tenement' in the Stamp Act should be given its ordinary and natural meaning which, according to the Shorter Oxford Dictionary (6th edition, 2007) is, when followed by the word 'to':
Having a resemblance or likeness; of the same nature or kind.
The primary Macquarie Dictionary meaning of 'similar' is:
Having likeness or resemblance, esp. in a general way.

Was the Martabe CoW or any right or interest granted or conferred by the Martabe CoW similar to a tenement referred to in para (a) of the definition of 'mining tenement' in s 76 of the Stamp Act?

As has already been said, on 30 March 2007 the Martabe CoW was in the feasibility study stage, described in Article 8.
Also as I have previously mentioned, if at any time during the exploration period PTAR discovers one or more deposits of minerals of apparent commercial grade and quantity it may elect to proceed with further evaluation of those mineral deposits. In respect of those deposits, the exploration period then ends and the feasibility study period begins. The feasibility study period ends upon the commencement of the construction period (EWS para 78).
The purpose of the feasibility study period is to allow PTAR to determine the feasibility of commercially developing the deposits in question and is for a period of 12 months, which may be extended for a further period of 12 months, during which PTAR is to select and delineate the parts of the Contract Area proposed for mining operations.
At any time during the feasibility study period, PTAR may submit a written application that it desires to proceed with the construction of a mine and facilities to be used by PTAR in its proposed mining operations. Upon approval of that application, PTAR must commence and complete the design of the facilities and submit those designs, together with an estimate of the cost of such facilities and a time schedule for the construction thereof.
Upon completion of the feasibility study, PTAR must submit a Feasibility Study Report which is to contain the details outlined in an Annexure to the Martabe CoW, including an environmental impact assessment.
The right to delineate the area in which PTAR wishes to conduct mining operations is subject to the approval of the Government of Indonesia if the relevant Minister considers that there are issues of national security, environmental issues or that the proposed area will significantly 'disrupt the socio-political stability in the region'.
I note that PTAR, as at 30 March 2007, did not have any rights to extract or mine any minerals, except to the limited extent necessary to conduct the feasibility study (EWS para 77).
The issue under consideration is whether the rights conferred on PTAR as at 30 March 2007 are similar to rights of a holder of any of the mining tenements referred to in para (a) of the definition of 'mining tenement' in s 76 of the Stamp Act.
I agree with the Commissioner's submission that the question of whether two things are 'similar' necessarily involves a comparison to determine their likeness. I also agree with the Commissioner that this comparison requires a consideration of the substance of the things being compared rather than their form. I do not, for example, regard it as determinative that the rights of PTAR under the Martabe CoW are contractual rights rather than statutory rights.
To determine this issue, I accept the applicants' submission that, rather than examining individual mining tenements granted under the 1978 Act, I need to consider the general features and characteristics of the rights of a holder of each of the types of mining tenements available under the 1978 Act, the general features and characteristics of the rights of PTAR under the Martabe CoW and then establish whether the rights under the Martabe CoW are similar to one or more of those tenements.
A prospecting licence is granted under the 1978 Act for the purpose of the prospecting of minerals on a relatively small scale (200 hectares in respect of each licence granted; 1978 Act, s 40(2)), although a person may be granted more than one licence. Every prospecting licence is deemed to be granted subject to the condition that the holder will prospect for minerals; 1978 Act, s 46. Significantly, it carries with it the right to convert the licence to a mining lease; 1978 Act, s 75(7). Further, the holder of a prospecting licence has the right to dig pits, trenches and holes and sink bores and tunnels for prospecting purposes in, on or under the land. The holder also has the right to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances not exceeding 500 tonnes or a greater amount approved by the Minister. The holder is subject to expenditure conditions; 1978 Act, s 50(1).
During the feasibility study period, there were no prospecting rights conferred under the Martabe CoW and although PTAR may submit designs for the construction of a mine and related facilities, it is possible that the relevant Minister may not approve those designs, so that mining operations may not proceed (EWS para 79).
I conclude that the Martabe CoW was not similar to a prospecting licence and the rights of a holder of a prospecting licence are not similar to the rights under the Martabe CoW at the relevant date.
The Commissioner submits that the rights held under the Martabe CoW as at 30 March 2007 are similar to the rights of the holder of an exploration licence or a retention licence, both of which allow for feasibility studies to be conducted following a period of exploration and for an application to subsequently be made for permission to mine. The Commissioner also says that the rights under the Martabe CoW were similar to the rights under a mining lease, which also allows for studies to be conducted and approval sought to commence mining.
An exploration licence authorises the holder to enter land for the purpose of exploration for minerals and includes the right to undertake operations and works necessary, including digging pits, trenches and holes and sinking bores and tunnelling; 1978 Act, s 66(b). The holder may remove earth, soil, rock, stone, fluid or mineral bearing substances of up to 1,000 tonnes or greater if the Minister so approves; 1978 Act, s 66(c). Again, the holder of an exploration licence has the right to apply for, and the Minister must grant to the holder a mining lease in respect of some or all of the same land, unless there is no significant mineralisation in, on or under the land the subject of the relevant licence.
The Martabe CoW does not, during the feasibility study period, confer exploration rights on PTAR. Under the Martabe CoW, any rights of exploration had come to an end at the commencement of the feasibility study period. I conclude that the Martabe CoW was not similar to an exploration licence and the rights of a holder of an exploration licence are not similar to the rights under the Martabe CoW at the relevant time.
A retention licence is by definition a mining tenement, but such a licence may only be granted to the holder of a 'primary tenement', namely a prospecting licence, an exploration licence or a mining lease; 1978 Act, s 70A. The retention licence relates to the whole or part of the land the subject of the primary tenement. The application process for a retention licence requires the applicant to lodge a statutory declaration that there is an identified mineral resource in the area but that the mining of that resource is impracticable for one or more of the reasons referred to in subsection (2) of s 70C of the 1978 Act; 1978 Act, s 70C(2A). The holder is then authorised to enter and reenter the land, further explore the land, and extract earth, rock or mineral bearing substances.
Once more, I conclude that the Martabe CoW during the feasibility study period was not similar to a retention licence and the rights of a holder of a retention licence are not similar to the rights under the Martabe CoW at the relevant time.
A mining lease carries with it the right to mine the land the subject of the lease for any minerals and confers upon the holder the right to remove and sell all minerals lawfully mined from that land; 1978 Act, s 85(1)(a) and (b). Section 82 of the 1978 Act provides that the holder of a mining lease must arrange and pay for a survey of the land the subject of the lease, but under s 80 of the 1978 Act it is not necessary for the survey to be carried out prior to the granting of the lease.
During the feasibility study period, the Martabe CoW does not confer on the holder any right to mine.
I conclude that the Martabe CoW during the feasibility study period was not similar to a mining lease and the rights of a holder of a mining lease are not similar to the rights under the Martabe CoW at the relevant time.
The other tenements falling within the definition of 'mining tenement' under the 1978 Act are, respectively, general purpose leases and miscellaneous licences. A general purpose lease entitles the lessee to exclusive occupation of the relevant land for one or more of the permitted purposes set out in s 87(1) of the 1978 Act. Those purposes include erecting, placing and operating machinery on the land in connection with the lessee's mining operations and for depositing or treating minerals or tailings obtained from that land.
A miscellaneous licence is granted for such purposes as the construction of roads, pipelines, power generation and transmission facilities, jetties and workshop and storage facilities. These purposes must be directly connected with mining operations; 1978 Act s 91(6).
I do not consider that the Martabe CoW during the feasibility study period was similar to a general purpose lease or a miscellaneous licence and the rights of a holder of a general purpose lease or a miscellaneous licence are not similar to the rights under the Martabe CoW at the relevant time.
The Stamp Act defines 'mining tenement' to mean a mining tenement held under the 1978 Act, 'being a mining tenement within the meaning of the 1978 Act or the 1904 Act'. Under the 1904 Act, mining tenements include business areas, dredging claims, gold mining leases, machinery areas, market garden areas, mineral claims, mineral leases, miners' homestead leases and prospecting areas. The transitional provisions in the second schedule to the 1978 Act provide that gold mining leases, coal mining leases and mineral leases under the 1904 Act are deemed to be mining leases granted under the 1978 Act, which are to remain in force for the unexpired period for which they were granted or renewed and shall then expire. While any such lease is in force, the holder of that lease has the right in priority to any other person to mark out and apply for a mining tenement under the 1978 Act in respect of the land or any part of the land which is the subject of that lease.
I have already concluded that the Martabe CoW was not similar to a mining lease and that the rights of a holder of a mining lease were not similar to the rights under the Martabe CoW at the relevant time.
Other tenements under the 1904 Act such as mineral claims, dredging claims, miners' homestead leases, residential leases, residents' areas, business areas, garden areas and other tenements granted under the 1904 Act continued for a short period after the commencement date of the 1978 Act and then expired. The holder of any such tenement could during the period of its temporary continuation apply for an appropriate tenement under the 1978 Act.
It is therefore unnecessary to consider the characteristics and features of these tenements. I do not understand the Commissioner to be contending that I should do so.
I do not consider that the Martabe CoW during the feasibility study period was similar to a mining tenement within the meaning of the 1904 Act or that the rights of a holder of a mining tenement within the meaning of the 1904 Act were similar to the rights under the Martabe CoW at the relevant time.

Was the Martabe CoW or any right or interest granted or conferred under the Martabe CoW similar to a right of occupancy continued in force by s 5 of the 1978 Act?

I accept the submission of the Commissioner that the Martabe CoW confers on PTAR a right of occupancy of the Contract Area for the purpose of carrying out the feasibility study. However, the right of occupancy specified in para (b) of the definition of 'mining tenement' in the Stamp Act is not simply any right of occupancy granted for mining purposes. The right of occupancy to be included as 'land' under s 76 of the Stamp Act is confined to a right of occupancy continued in force by s 5 of the 1978 Act and is therefore limited to a right of occupancy held by a party to a State Agreement which was in force at the commencement date of the 1978 Act, 1 January 1982, granted under either s 276 of the 1904 Act or under the State Agreement or both.

Right of occupancy under the Martabe CoW

Article 18 of the Martabe CoW is entitled 'Enabling Provisions' and provides as follows:
1.The Government will grant the Company the necessary rights and will take such other action as may be desirable to achieve the mutual objectives of this Agreement. The Company shall have the following rights:
(i)the sole right to enter the Contract Area or any Mining Area for the purposes of this Agreement, to make drill holes, test pits and excavations, and to take and remove, without royalty or other charge, samples for assays and for metallurgical, pilot plant and laboratory research purposes, including bulk samples for such purposes provided that the Company shall have received the approval by the Government prior to the export of any such samples, to be given on a yearly basis, and shall pay any royalties applicable thereto.
(ii)to enter upon and remain within the Contract Area and the Project Areas (related to the Contract Area including portions of the air space and shore line), subject to the right of the Department to object to any Mining Area as provided in paragraph 2 of Article 8. The Company shall recognize the items referred to in Article 16 of Law No. 11 of 1967, subject to the provision of paragraph 2 of the said Article 16.
2.In carrying out its activities under this Agreement, the Company subject to the laws and regulations from time to time in effect in Indonesia, shall have the right to construct facilities as it deems necessary, provided that
(i)in connection with the use of land by the Company for construction of facilities as provided in this Agreement, the Company shall pay the usual surveying and registration fees charged by the Land Registration Office. In acquiring titles to land outside any Mining Area, the Company shall comply with laws and regulations of general application from time to time in effect.
(ii)in connection with the activities of the Company, but subject to the provisions of Article 13, the Company shall pay generally applicable fees and charges for services performed, facilities provided and special rights granted by the Government; provided that such services, facilities and rights are requested by the Company.
3.Subject to laws and regulations which may from time to time be in force in Indonesia, and subject also to the provisions of paragraph 2 of Article 25 and paragraph 2 of article 16, the Company may at any time file with the Department a plan or plans and may thereafter file additional or amended plans covering:
(i)the Mining Area or Areas in which the Company proposes to construct facilities related to production;
(ii)all other areas in which the Company proposes to construct any other facilities necessary for the Enterprise and the location of all such rights in and over land including easements, rights of way and rights to lay or pass on, over or under land, any roads, railways, pipes, pipelines, sewers, drains, wires, lines or similar facilities as may be necessary for the Enterprise; and
(iii)all other areas in which the Company shall have the right to construct such additional facilities as the Company deems necessary or convenient for the Enterprise,
The Government shall thereupon make arrangements for the Company to utilize and remain within all such areas and such land covered by such plans (or such comparable areas as may be agreed between the Government and the Company) and to exercise the other rights specified above with respect to each such area. The use and occupancy of any areas covered by such plans shall not be subject to payment by the Company of any charges or fees other than those specified elsewhere in this Agreement. The plans filed pursuant to this paragraph shall, to the extent practicable, give description in sufficient detail to permit precise identification of the designated areas. The Government shall assist the Company in arrangements for any necessary resettlement of local inhabitants whose resettlement from any part of the Contract Area or the Project Areas is necessary and the Company shall pay for the resettlement and give reasonable compensation for any dwelling, privately owned lands (including such land ownership based on any Indonesian customs or customary laws, generally or locally applicable) privately owned crops and flora or other improvements in existence on any such parts which are taken or damaged by the Company in connection with its activities under this Agreement.
4.Subject to the payments provided for in Article 13 of this Agreement and payments and provisions laid down in generally applicable Central Government, Regional Government and Provincial laws and regulations, and without prejudice to the rights of private parties and to payments of reasonable compensation as may be customary in the Contract Area, the Company at its own expense after approval of the Government may take and use from the Contract Area such timber (for construction purposes), soil, stone, sand, gravel, lime; water, other products and materials as are necessary for or are to be used by the Enterprise. In doing so, the Company shall observe the then effective regulations governing the exploitation and use of said natural resources.
5.The Company shall also have the right subject to the approval of the Government and in compliance with existing rules and regulations, to clear away and remove such timber, overburden and other obstructions as may be necessary or desirable for the mining, construction of facilities and any other operations of the Company under this Agreement, provided that the Company shall take into account other rights granted by the Government such as grazing, timber cutting and cultivation rights, and rights of way, by conducting its operations under this Agreement so as to interfere as little as possible with such rights.
6.The Company may, at its own expense, also take and use any of such products and materials from other areas outside the Contract Area subject to the rights of other parties, and with the approval of the Government, and to the payment of such compensation as may be agreed between the Company and such other parties or the Government and in accordance with the prevailing laws and regulations.
7.At the request of the Company, the Government shall cooperate in a joint endeavor to alleviate any interference which may arise from others operating under conflicting rights.

It is evident from the opening words of para 1 of Article 18 that the rights conferred on PTAR under Article 18 are not all intended to be available immediately upon execution of the Martabe CoW. Those rights will be granted or will arise as and when required, depending on what stage has been reached under that agreement.
It is also clear that the Contract Area comprises or includes privately owned land, at least some of which is used for residential purposes (EWS paras 64, 66 and 67 and Article 18 para 3).
PTAR cannot exercise its occupancy rights under the Martabe CoW unless and until PTAR, with the assistance of the Government of Indonesia, has made 'arrangements for any necessary resettlement of local inhabitants' and subject to paying 'reasonable compensation' to the landowners (Article 18 para 3).

Right of occupancy preserved by s 5 of the 1978 Act

The Commissioner has provided the Tribunal with two examples of State Agreements which were in force on the commencement of the 1978 Act and which include provisions dealing with a right of occupancy under s 276 of the 1904 Act. The first of those is the agreement dated 10 March 1972 (Wittenoom Agreement) and scheduled to the Iron Ore (Wittenoom) Agreement Act 1972 (WA) and the second is the agreement dated 30 July 1963 (Hamersley Range Agreement) and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 (WA).
Clause 2 of the Wittenoom Agreement relevantly provides as follows:
(1)The State shall
(a)forthwith … cause to be granted to the Joint Venturers and to the Joint Venturers alone rights of occupancy for this [sic] purposes of this Agreement (including the sole right to search and prospect for iron ore) over the whole of [areas of land shown on the relevant plan] under Section 276 of the [1904 Act] … for the period expiring on the 31st December, 1972 and shall then and thereafter subject to the continuance of this Agreement cause to be granted to the Joint Venturers as may be necessary successive renewals of such last mentioned rights of occupancy (each renewal for a period of twelve (12) months at the same rental and on the same terms) …
…
(c)to the extent reasonably necessary for the purposes of clauses 4 and 5 hereof allow the Joint Venturers to enter upon Crown lands (including land the subject of a pastoral lease) and survey possible sights for a port, the Joint Venturers' wharf, a railway, the deposits' townsite and for stockpiling and other areas required for the purposes of this Agreement[.]
Clause 4 of the Wittenoom Agreement then provides for, amongst other things, a study to be carried out of the technical and economic feasibility of the mining being contemplated, including geological and geophysical investigations of the iron ore deposits. Clause 5 provides that the Joint Venturers must submit proposals to the Minister for the proposed mining and development of the relevant areas. If, after a process, the proposals are not accepted then the Wittenoom Agreement comes to an end.
The rights of occupancy granted under the Hamersley Range Agreement, are again contained in cl 2 of that agreement. They are in substantially the same terms as those contained in cl 2 of the Wittenoom Agreement and for substantially the same purposes as those in the Wittenoom Agreement.
Both the Wittenoom Agreement and the Hamersley Range Agreement were subsequently varied between the parties. In the case of the Wittenoom Agreement, a variation agreement (Variation Agreement) is included in a schedule to the ratifying Act and the Variation Agreement itself has been ratified. The Variation Agreement refers to other variations which had previously been made to the Wittenoom Agreement, so that there are references in the Variation Agreement to specific clauses of the Wittenoom Agreement which do not actually appear in the Wittenoom Agreement.
It may be that the Wittenoom Agreement has been further varied since the date of the Variation Agreement.
The same Hamersley Range Agreement has also been varied, and there are in fact 14 supplementary agreements scheduled to the ratifying Act.
It is therefore at least difficult to establish the precise terms of those State Agreements at the commencement date of the 1978 Act and the rights of occupancy to which s 5 of that Act applies.
However, I do not believe that the Parliament intended that, if the Commissioner (or, indeed, a potential taxpayer) is to determine whether a dutiable statement is required to be lodged under s 76AN of the Stamp Act, the Commissioner must consider the terms and conditions of the rights of occupancy under each of the State Agreements in existence at the date of commencement of the 1978 Act, and also the terms and conditions of each right of occupancy subsequently granted by the Minister. It is hard to see how the Commissioner could do this. Having identified each of the relevant State Agreements, the Commissioner would then need to establish whether the State Agreements had been subsequently varied prior to the commencement date of the 1978 Act. Taking the Wittenoom Agreement as an example, it provides that the agreement may from time to time be varied by agreement in writing, but the terms of such variation would not necessarily be generally available. Clause 32(2) of the Wittenoom Agreement provides that if the Minister is of the opinion that the variation would constitute a material or substantial alteration to the rights or obligations of either party to the agreement, the variation must be tabled in each house of Parliament. However, assuming that the variation is not disallowed, there seems to be no provision for the publication of the terms of that variation.
In other words, the provisions of a State Agreement in the form scheduled to a ratifying Act are not necessarily the provisions which were in force at the date of commencement of the 1978 Act.
The Commissioner in his supplementary submissions to the Tribunal included a witness statement from Mr Bradley John Prentice, a solicitor from the State Solicitor's Office, dated 15 August 2012. Attached to that statement are copies of documents which he had obtained from the Department of Mines and Petroleum 'evidencing the right of occupancy granted in respect of temporary reserve TR70/5616', presumably the temporary reserve created in respect of the Wittenoom Agreement. One of those documents is a copy of the conditions which apparently apply to the right of occupancy granted under the Wittenoom Agreement. It is unclear whether this document is intended to be the grant of that right of occupancy.
The other documents attached to that witness statement appear to be copies of entries in a register, and to the extent that they are legible I find them difficult to understand.
None of them assisted me other than to confirm my view that the Commissioner (or a potential taxpayer) would have great difficulty in determining the specific rights of occupancy held under relevant State Agreements.
It seems to me that if the Commissioner is to determine what rights of occupancy fall within the meaning of para (b) of the definition of 'mining tenement' in s 76 of the Stamp Act, he would again need to have regard only to the general features and characteristics of a right of occupancy continued in force by s 5 of the 1978 Act, rather than endeavouring to consider the terms and conditions of each and every such right, and then compare those with the general features and characteristics of the rights of occupancy conferred under the Martabe CoW.
I will accept that the Wittenoom Agreement and the Hamersley Range Agreement, in the form of Schedule 1 of both ratifying Acts, are typical of State Agreements to which s 5 of the 1978 Act applies.
What then are the general features and characteristics of the rights of occupancy under those agreements?
In Nicholas v State of Western Australia(Supreme Court WA, unreported 23 September 1971, LIB 947), Hale J said that:
… [t]he first step under s 276 [of the 1904 Act] is for the Minister … to reserve from occupation what is at the time Crown land: when that is done the reserved land ceases to be 'Crown land' as that expression is defined in s 3 [of the 1904 Act] and it follows that any rights which might otherwise have been exercisable by an individual under the [1904 Act] over that land while it was Crown land cease to be exercisable. Then once the reserve has been created the Minister may authorise any person to temporarily occupy the reserve on terms fixed by the Minister: …
He went on to say that once there has been a reservation under s 276, there can be no right to occupy the land in question unless such right is granted by the Minister, supported by the Governor in Council.
On appeal (Nicholas v State of Western Australia [1972] WAR 168), Jackson CJ, at 172, agreeing with Hale J, explained:
… rights of occupancy of Crown land for the purpose of prospecting for minerals could only be granted in accordance with an Act of Parliament, and since the Mining Act of 1904, in accordance with its provisions. It is clear from ss 276 and 277 of that Act that the right to occupy temporary reserves was jealously guarded by Parliament, which permitted the Minister to grant such a right only with the approval of the Governor in Council, and which retained for each House the right to disallow any original grant of a right of occupancy exceeding 12 months, and the renewal of a grant for any period. Hale, J. construed these sections as a code defining exclusively the manner in which a right to occupy a temporary reserve under s 276 can arise.
Jackson CJ continued:
But, in any case when the [1904] Act is read as a whole, it is clear that it is concerned with the development of mining and resources already discovered and has nothing to do with prospecting or the grant of temporary rights to occupy land for the purpose of exploratory work.
Taking these observations and the provisions of either the Wittenoom Agreement or the Hamersley Range Agreement into consideration, the general features and characteristics of the right of occupancy preserved under s 5 of the 1978 Act would seem to be as follows:
1)The right of occupancy originates in an agreement ratified by an Act of Parliament. It operates and takes effect despite the provisions of any existing Act or law.
2)It is granted over an area of what was Crown land as defined in the 1904 Act.
3)It creates an exclusive and immediate right of occupancy over the whole of the land the subject of the relevant State Agreement.
4)It is for the purpose of the State Agreement, including the sole right to prospect for iron ore.
5)It is granted for successive periods each of no more than 12 months' duration.
6)It contemplates the payment of rent.
In contrast, the right of occupancy granted under the Martabe CoW as at 30 March 2007 is:
1)created by way of an agreement entered into between the Government of Indonesia and PTAR, and it operates and takes effect subject to the provisions of the existing laws of Indonesia;
2)granted over an area of occupied land and is subject to agreement for resettlement being reached with the occupants;
3)granted for the purpose of the agreement, which at the relevant date is the carrying out of a feasibility study period;
4)granted only for the duration of the feasibility study; and
5)not subject to the payment of any rent.
The Martabe CoW and a relevant State Agreement may well share some common characteristics. Both were intended to result in the development of proposals to mine and thereafter the creation of mining rights. However, I do not accept that the rights of occupancy preserved by s 5 of the 1978 Act and the rights of occupancy conferred under the Martabe CoW during the feasibility study period are similar.

Was the Martabe CoW or any right or interest granted or conferred by the Martabe CoW similar to a tenement referred to in para (b) of the definition of 'mining tenement' in s 76 of the Stamp Act?

Paragraph (b) of the definition of 'mining tenement' in the Stamp Act also refers to 'a mining tenement … continued in force by s 5 of the [1978] Act'.
Both the Wittenoom Agreement and the Hamersley Range Agreement provide that, after mining proposals have been approved, the State will upon application grant mineral leases to the company concerned in the form of the Schedule to the relevant State Agreement; Wittenoom Agreement cl 8, Hamersley Range Agreement cl 9. The rights of occupancy granted under s 276 of the 1904 Act will cease upon the date of that application; Wittenoom Agreement cl 2(1)(a)(i), Hamersley Range Agreement cl 2(a)(i).
These leases are granted subject to the provisions of the 1904 Act, except as modified by the relevant State Agreement.
I have already found earlier in these reasons that the Martabe CoW was not similar to a mining lease or a mineral lease and that the rights of a holder of a mining lease or a mineral lease are not similar to the rights under the Martabe CoW at the relevant time. It follows that I do not consider that the Martabe CoW or any right or interest granted or conferred by the Martabe CoW was at the relevant time similar to a mining tenement preserved by s 5 of the 1978 Act.

Conclusion

For the reasons set out above, I conclude that the contractual rights held by PTAR pursuant to the Martabe CoW as at 30 March 2007 do not fall within the definition of 'mining tenement' in s 76 of the Stamp Act. The parties have agreed that, if this is my conclusion, then Agincourt was not a landholder as at 30 March 2007 within the meaning of that term in s 76ATI of the Stamp Act, and I find accordingly.

The third issue was the Martabe CoW, or any right or interest granted or conferred by the Martabe CoW, held under the law of Indonesia?

In the light of the foregoing finding, it is unnecessary to consider this issue but, because arguments were put by both parties, I will provide my decision and my reasons on this issue also.

The parties' submissions

The applicants contend that a tenement, right or interest in para (c) of the definition of 'mining tenement' in the Stamp Act should extend only to a tenement, right or interest that is held under a statute of another jurisdiction. They say that para (c) should not be construed so broadly as to include contractual rights but should be limited to rights 'derived from legislation'.
The applicants cite a number of authorities for their proposition that the expression 'under the law' means that the source of the rights in question needs to be derived from the law. They submit that, because the Martabe CoW is an agreement between two parties, it is the agreement which is the source of the rights and obligations of the parties to that contract, not the law.
The Commissioner submits that para (c) does not direct attention to any particular law. The Commissioner says that the cases cited by the applicant 'deal with particular circumstances under other legislation [and] are of no assistance in resolving the issues in this case'.

The Tribunal's findings on the third issue

Section 5 of the Interpretation Act 1984 (WA) provides that the word 'under' in relation to a written law or a provision of a written law, includes 'by', 'in accordance with', 'pursuant to' and 'by virtue of'.
The expert witness has confirmed that while the Previous Mining Law and Previous Mining Law Implementation Regulations do not deal with the content of a CoW, they recognise the authority of the Government of Indonesia to execute CoWs and the procedures for such execution (EWS paras 34 36).
In Victrawl Pty Ltd v Telstra Corporation Limited (1994) 183 CLR 595, at 612 the Court said:
… the word 'under' in the phrase 'claim under a law' can be understood in a broader and less exact sense which comprehends claims which are the subject of, in the sense of being drafted and qualified by, the relative law.
It is clearly open to me to give the expression 'under the law' a broad interpretation. Because para (c) uses the very general word 'similar', I have concluded that it is unlikely that it was intended that the definition should then be restricted by a narrow interpretation of the phrase 'held under the law of … another jurisdiction'.
The Martabe CoW at Article 32 provides that it is governed by the law of Indonesia. The Martabe CoW is recognised by the law of Indonesia (EWS para 30) and subject to the doctrine of lex specialis (EWS para 59).
While I accept that the parties to the Martabe CoW do not derive their rights and obligations from legislation, I am satisfied that for the purposes of para (c) of the definition of 'mining tenement' in the Stamp Act, the Martabe CoW is held under the law of another jurisdiction, namely Indonesia.

Is the Assessment unconstitutional and invalid on the ground that it is beyond the power of the Western Australian legislature to impose under the Stamp Act a liability that is dependent upon the characterisation of an item of property that has no territorial connection with the State of Western Australia?

In respect of this issue, I am assured by the applicants that they are not suggesting that the Tribunal has jurisdiction to make a declaration as to the constitutional validity or otherwise of parts of the Stamp Act. However, the applicants say, correctly in my view, that the Tribunal's role is to stand in the shoes of, in this case, the Commissioner and to reach the correct and preferable decision and so, based on the conclusions of both Her Honour Deputy President Judge Pritchard (as she then was) in Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79 and His Honour Deputy President Judge Chaney (as he then was) in Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60, the applicants submit that the Tribunal has the power to decide whether or not the Commissioner had the authority to make the decision under review.
The applicants then go on to argue that it is beyond the power of the Commissioner to issue the Assessment and to deal with the objection to it because it is beyond the power of the Western Australian Parliament to impose a liability to taxation which is dependent upon the characterisation of an item of property which has no territorial connection with the State of Western Australia.
Two points arise. First, the two decisions of the Tribunal referred to at [123] both relate to questions as to whether the relevant decisionmaker in each case had the power to grant or refuse development approvals under the relevant planning legislation. In neither case was it suggested that the legislation itself was invalid.
Second, it seems to me that, however this issue is framed, it seeks a finding by the Tribunal as to the power, or want of power, by the Western Australian legislature to enact Div 3b of Pt IIIBA of the Stamp Act, which is, of course, beyond the jurisdiction of the Tribunal.
However, if I have misunderstood the applicants' position or if I am wrong in my conclusion as to the jurisdiction of the Tribunal, I will briefly deal with the issue as it has been put to me.
The parties accept that the statement of Dixon J in Broken Hill South Limited v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375 as being the relevant test for determining whether Div 3b of Pt IIIBA of the Stamp Act is a valid exercise of the State's legislative power in its application to this matter. There his Honour said:
… The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.

I also note the statement of the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14 that the requirement for the relevant connection between the circumstances on which the legislation operates and the State should be liberally applied and even a remote and general connection between the subject matter of the legislation and the State will suffice.
The applicants say that there must be a sufficient connection between the matter that is being taxed and the law making jurisdiction. They say that a tenuous or slight connection with the law making jurisdiction will not satisfy the nexus requirement. They contend that Div 3b of Pt IIIBA of the Stamp Act seeks to impose stamp duty on the acquisition of a controlling interest in listed landholder corporations that are incorporated outside Western Australia and that hold (either directly or through a subsidiary) Western Australian land of a value of least $1 million. They say that Div 3b is beyond power because:
a)the duty arises in respect of an acquisition of shares in a corporation incorporated outside Western Australia and therefore there is no sufficient nexus between the subject matter of the tax and the land in Western Australia; and
b)the liability to duty also turns on the characterisation of property outside Western Australia as 'land' to which Agincourt is entitled.
I do not accept these contentions. The territorial nexus is Agincourt's land in Western Australia and duty is levied only on property in Western Australia, not on any property in Indonesia or elsewhere.
Accordingly, to the extent that I need to be satisfied, I am satisfied that the Commissioner, and therefore the Tribunal, has the authority to make the decision under review.

Orders

1.The application of OZ Minerals Ltd dated 2 September 2011 is allowed.
2.The Commissioner's assessment of stamp duty in respect of the acquisition of shares by Oxiana Agincourt Holdings Ltd the subject of these review proceedings is set aside.
3.The Tribunal sends the matter back to the Commissioner for a new assessment to be issued in accordance with the decision of the Tribunal that OZ Minerals Agincourt Pty Ltd was not a landholder as at 30 March 2007 within the meaning of that term in s 76ATI of the Stamp Act 1921 (WA).

I certify that this and the preceding [132] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT