State Rail Authority of New South Wales v Collector of Customs

[1992] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S169 of 1991

B e t w e e n -

STATE,.RAIL AUTHORITY OF

NEW SOUTH WALES

Applicant

and

COLLECTOR OF CUSTOMS

Respondent

Application for special

leave to appeal

MASON CJ
TOOHEY J

McHUGH J

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TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 1992, AT 10.05 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

for the applicant, with my learned friend,

MR R.B. WILSON. (instructed by Billington McClure

Lee)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR L.S. KATZ, for the

respondent. (instructed by Australian Government

Solicitor)

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	Your Honour, I hand up five sets of an outline

of submissions, which is certainly not a grandiose

brief, together with two authorities.

MASON CJ: Yes.

MR BENNETT:  Your Honours, the Acts Interpretation Act and

all the State Interpretation Acts contain an

extraterritoriality provision, substantially in the

form of section 21 which appears on page 16 of the

application book. I have called it section 2l(a) in the submissions; that is a mistake for section

21(b). This case involves the primary question, I

suppose, which arises whenever one seeks to apply

that provision. One starts with the concept that:

references to localities jurisdictions and

other matters and things shall be construed as

references to such localities jurisdictions

and other matters and things in and of the

Commonwealth.

The problem is, where one has a statutory provision

which contains a number of elements, how does one

apply it in that way?

There is a direct decision on the subject in

the Court of Appeal of New South Wales in 1967 in
the context of workers' compensation in

O'Connor v Healey. That was a case where the

employment was in New South Wales; the worker lived in Victoria. The statute said if he was injured on

a journey between his place of employment and place

of abode, he recovered compensation. He was

injured in New South Wales and it was argued that

because he was travelling to his place of abode in

Victoria, one must construe the words "place of

abode" in accordance with this provision so that it

would not be compensable.

That argument was rejected and there is a very

clear passage in the judgment giving the reason for

rejecting it. If Your Honours go to

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O'Connor v Healey was delivering the judgment of the court - His

in the judgment of

Honour at about line 7, immediately after the

reference to the Interpretation Act, said this:

When there are a number of circumstances which

have a local content, such as, in the present

case, injury, journey, place of abode and
place of work, I do not think that ordinarily
it is possible to apply the terms of the

Interpretation Act to each and every one of

them as a matter of course. It seems to me

that the intention of section 17 is to provide

the natural limit of legislation, so that it

applies in its subject matter to those

situations which have a nexus with

New South Wales. However, it is not every

aspect of every sentence or clause of

legislation which can be given the local

New South Wales connotation.

Now, it is that which, we respectfully submit, has

been violated in the present case. The relevant

provision is at page 15 of the application book.

A rebate is payable -

if Your Honours go to the top of the page - in

relation to the use of diesel fuel:

in mining operations (otherwise than for the

purpose of propelling a road vehicle on a

public road);

"Mining operations" are then defined as including:

the dressing or beneficiation (at the mining

site or elsewhere) of minerals, or ores

bearing minerals, as an integral part of

operations for their recovery -

and there was no dispute here that the

beneficiation was an integral part of operations

for their recovery. It was the smelting of

minerals for the purpose of removing impurities,

and it includes, in (d):

where minerals, or ores bearing minerals, are

dressed or beneficiated, at a place other than

the mining site, as an integral part -

et cetera -

the transporting of the minerals -

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and, of course, the relevant transporting by train,

from the mine to the seaport, took place in

New South Wales.

TOOHEY J: Why is that the relevant journey, Mr Bennett? I

mean, why is it not the journey from the site of

the mining operations to wherever overseas

the - - -

MR BENNETT:  Because the rebate was only claimed on the

train journey, Your Honour.

TOOHEY J: Yes, I appreciate that, but on your argument,

would it not be claimable in respect of the

transport of the ore wherever the ultimate

destination was?

MR BENNETT: 

Your Honour, if the first of the three ways of

applying it was accepted, it would not cover that;
if the second was accepted, it would not; if the

third was accepted, it would. And there are three

ways which are set out on page 1 of my submissions,

and it really depends which of the three one does.

MASON CJ: What policy reason would there be for allowing a

rebate in relation to beneficiation that takes

place overseas?

MR BENNETT:  Your Honour, the rebate is allowed for

transportation in the present case and the result

is that it would be paid in relation to

transportation, which is provided by an Australian

transporter within Australia, creating Australian

jobs and having every relevant connection with

Australia.

But, Your Honour, there are three ways one can

do it: one can start by applying it to the

specific concept relevant for the particular

decision, which is what we say you do.	You start
with saying, what is relevant is the

transportation, the specific transportation we are

concerned with. In O'Connor v Healey, the vital

factor in the end was that the injury occurred in

New South Wales, although there was a statutory

provision which would have operated if the injury

had occurred in Victoria. Here, the specific thing

is the transportation of the goods for the

particular part of their journey which we say is in

New South Wales or within Australia.

The second way one can do it is to do what the Administrative Appeals Tribunal accepted and what

the respondent submitted below which is to apply

it, in effect, to each element separately and say,

"Well, unless every element is satisfied, one of

the elements being place of beneficiation" - that

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being the terminus ad quern - "one does not

succeed." So every element must be satisfied, is

the second approach.

The third approach is the one which the

Full Court took and it is an intermediate approach

and we submit that it is a permissible approach if

applied properly, but that there was an error in
applying it. That was to apply it to the

subject-matter of the provif:$ion and create a

concept called the subject-matter of the provision

and look at that. If one treated that narrowly, of

course, it would be the transportation, but the

subject-matter here, treated broadly, was the

mining operations. Now, "mining operations", of

course, are defined as including the beneficiation

and the transportation to the place of

beneficiation, so long as they are an integral part

of operations for recovery. The steps taken by the

Full Court are set out in paragraph 3 of our

submissions on page 2.

They start by applying the third approach in

saying section 2l(b) must be applied to the
subject-matter of the provision. Then they say the
subject-matter of the provision is mining

operations. That is clear. Then thirdly, they

said the "central point of reference" and "key

element" in the definition - and I have given the

reference to that - is the concept of the recovery

of minerals; so be it. Then they have

saidbeneficiation and transportation to the place

of beneficiation, must be "an integral part of the

operations for the recovery of minerals". That

appears in the definition and what that means on

the authorities is a functional relationship rather
than a spacial relationship, and there is no

problem with that. But then they jumped; then they

said therefore section 2l(b) requires that all

these elements take place in Australia.

That, in our respectful submission, is the

non sequitur. If one is looking to the overall

concept of mining operations as being the whole

process, clearly substantially, that takes place in

Australia where the mineral is one, where it is loaded on trains, where it is transported to the

seaport, and the lesser part, transportation by sea
and the overseas beneficiation, is not part of the

central core of the definition of "mining

operations".

So, we would submit, that if one was to apply

the third approach, one would have concluded that

the test was whether the key element was

predominantly taking place in Australia, and it

was. So, in our submission, what the Full Court

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has done is really to take a test contrary to

O'Connor v Healey.	What it has said is that every
element must be in Australia.	We have found an

element outside Australia, the place of

beneficiation, that is the end of it.

Now, Your Honours, we submit that is an

important point of statutory construction. The

manner in which these clauses should be interpreted

and applied to legislation is a matter of

importance. There are three quite different ways

of doing it. There is a decision of the Court of

Appeal of New South Wales which is contrary to the

decision of the Full Federal Court; there is no

other matter in dispute in these proceedings; there

were agreed facts, such a short simple point, which

would take probably half a day or less to argue; it

involves the public interest, because it affects

the operations of a statutory authority; there is

more than $1 million involved indirectly and

finally, we simply note that the Full Court decided

the appeal on the basis that was never really part

of the dispute between the parties because the

argument was between the first and second methods

and the approach of saying that the third method of
taking subject-matter involved every element was

one which was not really put or argued.

MASON CJ:  Mr Bennett, have you got a copy of the

Excise Act?

MR BENNETT:  No, Your Honour.

TOOHEY J: The substantive provisions are to be found in the

Customs Act itself.

MASON CJ: In the Customs Act. Yes, I just wondered whether

there is anything in the surrounding subsections of

78A(7) that are at all significant?

MR BENNETT:  My learned junior is more efficient than I gave him credit for. We do have copies of parts of it.

MASON CJ:  He does not seem to be glowing as a result of

that commendation.

MR BENNETT:  It seems to be the end of this passage which

has the amendments. It is the page in the bundle I

have handed up which has the number 19 in the top

right-hand corner. It is about half-way through

the bundle.

MASON CJ: No, it does not do anything apart from

subsection (7).

MR BENNETT:  No. May I just say this, in answer to a

question Your Honour Justice Toohey asked me about

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the policy, that of course it is in the interests

of the Australian economy that the mineral should

be produced and available for sale. If it requires

a process to be applied to it outside Australia,

that nevertheless is part of a series of steps

which are, in my respectful submisssion, of

advantage to the Australian economy and there is no

reason why one would exclude that from the

legislation and, of course, the legislation

specifically contemplates the transportation may be

to a place some distance from the place of actual

mining.

So, Your Honours, for those reasons it is my

respectful submission this is an important issue

and special leave should be granted.

MASON CJ:  The Court need not trouble you, Mr Jackson.

In the view of the Court, the question sought

to be raised here is a question of statutory

construction which does not raise any question of

general principle. Accordingly, the case is not

one in which it is appropriate to grant special

leave to appeal. The application is refused.

MR JACKSON:	I ask for costs of the application?
MASON CJ:	You do not oppose costs, Mr Bennett?
MR BENNETT:	No, Your Honour.
MASON CJ:	The application is refused, with costs.

AT 10.21 THE MATTER WAS ADJOURNED SINE DIE

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