50 Pastoral Management contends that the Rectification Order was invalid for three reasons. They are:
i. the Rectification Order was beyond the power conferred upon the Governor by s 9.64 of the LG Act; ii. the Rectification Order was made for an improper purpose; and
iii. the Rectification Order is an executive order which cannot override the operation of s 6.29 of the LG Act.
Is the Rectification Order beyond power? 51 The applicant contends that the Rectification Order went beyond the scope of orders permissible under s 9.64. It makes that submission on two bases. The first is that the section is enlivened only if there has been an impediment or accidental omission, neither of which, it contends, was present in this case. The second is that there must be a 'requirement' for something to be done by or under the LG Act which has not been done either at all or in the prescribed time, manner or form, and no such requirement is found in s 6.29(3). Pastoral Management also argue that there is significance in the use of the word 'validate' in s 9.64(3) and that the Minister's determination was not itself invalid, but rather merely ineffective.
Impediment or accidental omission
52 There is no suggestion of any impediment which prevented the Minister from expressly excluding s 6.29(2). The Minister argues, however, that the failure to include the exclusion was an accidental omission.
53 In support of that contention, the Minister sought to rely on affidavits of two officers involved in the preparation of the June briefing note, Ms Mary Verna Adam and Mr Brad Jolly. Ms Adam is a government lawyer who reviewed the June briefing note, after its preparation by another officer of the Department, for the purpose of ensuring that the appropriate legal requirements were met and articulated in the assessment of the application in the briefing note. She said that she failed to advert to the need to expressly exclude s 6.29(2) of the LG Act and, therefore, to bring that matter to the attention of the Minister in the briefing note.
54 Paragraph 10 of Ms Adam's affidavit deposed to what she said was the Department's intention when preparing the briefing note. Objection was taken to that paragraph of her affidavit, and parties agreed that I should rule on the objection in the course of giving these reasons. I would uphold the objection. It is not open to Ms Adam to give evidence as to the Department's intention.
55 Mr Jolly was, at the relevant time, the Executive Director, Governance and Legislation, at the Department. He reviewed the June briefing note with a view to ensuring that the appropriate legal requirements were met and articulated in the assessment and briefing note. He said that he failed to advert to the need to expressly exclude s 6.29(2) and, therefore, failed to bring that matter to the Minister's attention. He said that if he had picked up the failure to include the reference to that requirement, he would have brought it to the attention of Ms Adam in accordance with the standard procedure for settling briefing notes.
56 Objection was taken to par 5 of Mr Jolly's affidavit which referred to 'the intention of the briefing note' and to the fact that the need to exclude s 6.29(2) 'was unfortunately overlooked'. The form in which par 5 of Mr Jolly's affidavit is drawn is objectionable to the extent that it goes to the state of mind of anyone other than Mr Jolly. I consider, however, that the statement can be read as an expression of Mr Jolly's own intention as to what the briefing note should convey, and to his own overlooking of s 6.29(3). I would allow the evidence on that basis.
57 Quite separately from Mr Jolly's stated intention, however, the only sensible inference to be drawn from the June briefing note is that it was intended to cause the Minister, should he agree to the recommendation, to make a determination which was effective to change the basis the rating of the interests with which it dealt from UV to GRV. More particularly, there can be no doubt that the Minister intended to change the basis of rating when he made his determination. The question is whether his failure to specifically exclude s 6.29(2) was an accidental omission.
58 The Minister can be taken to have adopted the analysis and reasoning contained within the June briefing note in coming to his decision.1 The failure in the briefing note to mention the requirement of s 6.29(3) arose by reason of the failure by Ms Adam and Mr Jolly, and, it can be inferred, other officers of the Department involved in the preparation of the briefing note, to address their minds to that requirement. Those omissions led to the omission by the Minister to address his mind to that requirement.
59 In the context of the slip rule under the High Court rules, which enables the High Court to correct an error arising from an accidental slip or omission, the High Court has said that the rule extends to authorise an omission resulting from the inadvertence of a party's legal representative.2 By analogy, I consider that the expression 'accidental omission' is sufficiently broad to encompass an accidental omission by those preparing the briefing note to the Minister which was undoubtedly the proximate cause of the Minister's omission to include the exclusion of s 6.29(2) in his determination. Pastoral Management seeks to distinguish between a slip rule available to a Court, and s 9.64 of the LG Act for the purpose of considering the meaning of 'accidental omission'. I do not accept that there is any relevant distinction. Both are designed to facilitate the rectification of things done in error so as to avoid unintended consequences.
Was there a requirement under the Act?
60 Pastoral Management argues that the exclusion of the application of s 6.29(2) is not something 'required to be done by or under' the LG Act. Rather, it submits that s 6.29 merely provides that, if a determination is made under s 6.28(1) that does not expressly exclude s 6.29(2) in respect of a relevant interest, then UV is to be the method of valuing the relevant interest.
61 In my view, that is an unduly narrow construction of the expression 'required to be done'. Pastoral Management argues that s 9.64 should not be construed liberally, since it, in effect, amounts to a taxing provision. That is not the appropriate characterisation of s 9.64, which has general application to the many and varied provisions of the LG Act. The fact that it may operate in the context of provisions of the LG Act relating to rating does not call for a narrow reading of the expressions used in s 9.64. Clearly, the purpose of s 9.64 is to enable the correction of accidental omissions so as to achieve the purposes and intention of the LG Act. I will return to the purpose and intention of s 6.29 below in discussion of Pastoral Management's improper purpose argument.
62 In order for the Minister to do what he clearly intended to do, namely change the basis of rating of the relevant interest to GRV, it was necessary that he expressly exclude the application of s 6.29(2). In that sense, the exclusion was a 'requirement' under the Act in order to achieve the desired result.
Significance of the word 'validate'
63 Pastoral Management argues that the failure to expressly exclude s 6.29(2) did not lead to the invalidity of the determination and thus the power to 'validate' under s 9.64 is not enlivened. There is no substance in that submission.
64 The word 'validate' appears in s 9.64(3). It is used in connection with the validation of 'anything which has been done otherwise then in the prescribed time, manner or form'. The substantive power exercised by the Governor in making the Rectification Order was that found in s 9.64(2). That power is to 'take such measures as are necessary for rectifying the omission ...'. Section 9.64(1) makes the section applicable not only to things 'not done in a prescribed time, manner or form' (to which s 9.64(3) applies) but also to things required to be done which are not done at all. In relation to those things, the Governor may 'take such measures as are necessary for rectifying an omission'. That is what was done in this case by the publication of the Rectification Order. Questions of invalidity do not arise.
Was the rectification made for an improper purpose?
65 The second basis upon which the Rectification Order is said to be invalid was that the order was made for an improper purpose. It is submitted that the purpose of the Rectification Order was not for 'the purpose of giving effect to the intention and purposes of 'the LG Act, but rather for 'giving effect to the purported intention of the Minister to determine that the Eramurra Camp should be rated on a GRV basis'. Pastoral Management argues that the relevant intention and purpose of s 6.29 is that a relevant interest is to be rated on the basis of UV regardless of any determination under s 6.28(1) except if there is an express exclusion under s 6.29(3). That is an unduly narrow expression of 'intention and purposes of this Act' as those words apply to s 6.29. The intention of s 6.29 is that relevant interests should generally be rated on the basis of UV notwithstanding that the interests are held within areas which, by virtue of a determination under s 6.28, may generally be rated by GRV. The purpose of s 6.29 also includes enabling the Minister to determine that GRV should apply as the rating basis to a relevant interest in a portion of land on which capital improvements are located, provided no other estate in that portion of land is rateable on the basis of GRV. The Rectification Order did no more than give effect to the intention and purpose of s 6.29 in the sense of its intention to enable the Minister to apply GRV to a relevant interest in a portion of land on which capital improvements are located.
Does the Rectification Order override s 6.29 of the LG Act?
66 Pastoral Management contends that the effect of the Rectification Order is to override, or disapply, s 6.29 of the LG Act. It argues that s 9.64 is not a 'Henry VIII clause' in that it does not expressly confer power on the Governor to amend or disapply the LG Act. It refers to the observations of Woodhouse P in Combined State Unions v State Services Co-ordinating Committee3 where Woodhouse P said:
It is an important constitutional principle that subordinate legislation cannot repeal or interfere with the operation of a statute except with the antecedent authority of Parliament itself. It is a constitutional principle because it gives effect to the primacy of Parliament in the whole field of legislation. And as a corollary a rule of construction springs from it that the Courts will not accept that Parliament has intended its own enactments to be subject to suspension, amendment or repeal by any kind of subordinate legislation at the hand of the Executive unless direct and unambiguous authority has been expressly spelled out to that effect, or is to be found as a matter of necessary intendment, in the parent statute.
67 The Rectification Order does not override or disapply the LG Act. It is an order expressly contemplated in s 9.64, and its effect is to achieve, consistent with the purpose of s 6.29 of enabling the Minister to determine rating methods for certain relevant interests, what the Minister intended to achieve by the making of the rating determination. It corrects the Minister's omission so as to give effect to the consequences contemplated by s 6.29. 68 Pastoral Management argues that the principle enunciated in Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia4 is applicable so that the specific power to determine the basis of rates which is found in s 6.29 excludes the use of the more general power found in s 9.64. The relevant principle is found in the passage from the joint judgment of Gavan Duffy CJ and Dixon J where they said:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
69 Anthony Horden was discussed by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom.5 They explained:
Anthony Horden concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) ("the Conciliation and Arbitration Act") which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only "other things being equal". The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan Duffy CJ and Dixon J, McTiernan JJ; Starke and Evatt JJ dissenting) held that those general powers did not authorise the judge to make an award which "ignored the exception[s]"44 contained in s 40. McTiernan J concluded as follows:
Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference.' I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40.
This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members. (footnotes omitted)
70 The relevant power being exercised by the Minister in this case is that found in s 6.28 of the LG Act which is conditioned for its effectiveness in relation to relevant interests by s 6.29(3). The power of the Governor under s 9.64 is not a power to determine the method of rating. It is a power to rectify error. It cannot be categorised as a more general power to do that which can be done under s 6.28. The principle in Anthony Horden has no application to this case. 71 It follows that the declaration sought by Pastoral Management should not be made, and the application in CIV 1850/2014 should be dismissed. It is, thus, necessary to turn to the challenges to the validity of the Minister's determination.
72 I have set out above the grounds as expressed in the amended application, upon which Pastoral Management seeks to have the Minister's determination quashed. The complaints about the Minister's decision were put in slightly different way in each of Pastoral Management's written submissions and oral submissions. There is clearly an overlap in the different grounds, but some of Pastoral Management's oral submissions appeared to traverse matters not clearly arising from the grounds as expressed in the amended application. I propose to deal with the grounds in the terms as expressed in the amended application, as distinct from the way, and sequence, in which they were expressed in various written and oral submissions of Pastoral Management.
Ground 1(a) - Irrelevant considerations
73 There are two irrelevant considerations said to have been taken into account. The first is cl 25 of sch 1 of the State Agreement. The second is that the Minister took into account that sufficient financial benefits had been provided to the applicant when those benefits were not specified and were illusory.
74 It is not an issue that the May briefing note and the June briefing note both made reference to cl 25(1) of the State Agreement which was not then applicable, and were thus in error in suggesting otherwise. The precise terms of cl 25(1) were as follows:
Rating 25(1) The State shall ensure that notwithstanding the provisions of any Act or anything done or purported to be done under any Act the valuation of all lands within Area A, Area B1 and Area B2 from time to time the subject of this Agreement (except any accommodation area and any other parts of the lands the subject of this Agreement on which accommodation units or housing for the Company's workforce is erected or which is occupied in connection with such accommodation units or housing and except as to any part upon which there stands any improvements that are used in connection with a commercial undertaking not directly related to a Project carried out by Project Proponents pursuant approved proposals) shall for rating purposes under the Local Government Act 1995, be deemed to be on the unimproved value thereof shall subject to subclause (2) be calculated on the basis that they are mining leases under the Mining Act.
75 The effect of cl 25(1) was that the requirement that lands dealt with by the State Agreement be rated on unimproved value contained an exception for accommodation areas. In other words, it was open, under the State Agreement, to rate accommodation areas on a GRV basis. 76 When cl 25(1) was removed, there was no change to the potential for accommodation areas to be rated on GRV. The capacity to do so existed by virtue of s 6.29(3) which permits the Minister to determine that land on which capital improvements are located is to be rated on GRV. The relevant issue for the Minister was whether or not it was permissible to determine rating for Eramurra Camp on a GRV basis. Clearly, it was.
77 Pastoral Management argues that the reference to cl 25 in the briefing note suggests that the Minister took into account an expressed exclusion and differentiation of accommodation units from other mining property, a consideration which was flawed. There is no basis to impute that distinction in the Minister's consideration. The relevance of cl 25(1) related to the power of the Minister to determine a GRV basis for rates in the context of considering whether it would be in accordance with the government's mining interests valuation policy. The reference was no doubt directed to a specific issue of whether the proposed determination would be prevented by the State Agreement. The determination did not contravene the State Agreement, regardless of whether or not cl 25(1) formed part of the State Agreement. Whether or not cl 25(1) remained part of the State Agreement was thus immaterial to the Minister's position. Reference to it did not misdirect him to any irrelevant consideration.
78 The second irrelevant consideration said by Pastoral Management to have been taken into account by the Minister was a consideration of whether 'sufficient financial benefits had been provided to the applicant, notwithstanding that such financial benefits were not specified and were, in fact, not provided to the applicant or, alternatively, were illusory or, alternatively, were merely that the Shire had not rated the camps on a GRV basis previously'.
79 In my view, Pastoral Management have elevated the reference to financial benefits in the past to a level of importance which it simply did not have in the Minister's decision-making.
80 Pastoral Management's argument arises from the reference in the June briefing note to the passage set out above (at [44]) concerning the Minister's 'rising concerns relating to the application of Local Government rates to mining interests, and to the Department's approach to the Shire concerning the possibility of gradually phasing in the proposed rates. The briefing note then outlines the Shires response to that concern, namely that it declined to gradually phase in the rates, 'arguing that the affected landholders have already received financial benefits in the past'.