Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania
[2012] TASSC 20
•27 April 2012
[2012] TASSC 20
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20
PARTIES: TASMANIAN ADVANCED MINERALS PTY LTD
v
FORESTRY TASMANIA
FILE NO/S: 689/2011
DELIVERED ON: 27 April 2012
DELIVERED AT: Hobart
HEARING DATES: 27 October 2011, 13 March 2012
JUDGMENT OF: Porter J
CATCHWORDS:
Administrative Law – Review of decisions – Other States and Territories – Decision of Forestry Tasmania to impose a charge for the use of forest roads for commercial purposes based on maintenance costs – Forestry Tasmania a public corporation and a government business enterprise – Whether statutory power to impose any charge – Whether power to impose a particular type of charge.
Forestry Act 1920 (Tas), s20B(3).
Government Business Enterprises Act 1995 (Tas), s9(1).
Aust Dig Administrative Law [1185]
Energy and Resources – Forests - Decision of Forestry Tasmania to impose a charge for the use of forest roads for commercial purposes based on maintenance costs – Forestry Tasmania a public corporation and a government business enterprise – Whether statutory power to impose any charge – Whether power to impose a particular type of charge.
Forestry Act 1920 (Tas), s20B(3).
Government Business Enterprises Act 1995 (Tas), s9(1).
Aust Dig [1031.4]
Energy and Resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Other matters – Mining lease – Statutory provision giving leaseholder power to enter on and pass over Crown land for the purposes of carrying out mining operations on lease area – Holder of mining lease using road on Crown land to access lease area – Crown land made up entirely of State forest – Forestry Tasmania given exclusive management and control of State forest – Whether provision prevented Forestry Tasmania from imposing a charge for the use of forest roads.
Forestry Act 1920 (Tas), ss20B(3).
Government Business Enterprises Act 1995 (Tas), s9(1).
Mineral Resources and Development Act 1995 (Tas), s84(1)(b).
Aust Dig Energy and Resources [1070]
REPRESENTATION:
Counsel:
Applicant: P L Jackson
Respondent: J R McDonald
Solicitors:
Applicant: Simmons Wolfhagen
Respondent: John McDonald
Judgment Number: [2012] TASSC 20
Number of paragraphs: 78
Serial No 20/2012
File No 689/2011
TASMANIAN ADVANCED MINERALS PTY LTD v FORESTRY TASMANIA
REASONS FOR JUDGMENT PORTER J
2012
Introduction
Tasmanian Advanced Minerals Pty Ltd (TAM) is in the business of mining silica on the west coast of Tasmania. It operates three mines, one of which is at Hawkes Creek where commercial operations started in May 2011. One of the other two is at Blackwater and was opened in 2008.
TAM is the holder of a mining lease over the area on which the Hawkes Creek mine is situated. It is on Crown land which is State forest. In order to gain access to the Hawkes Creek mine, it is necessary to use about 20 kilometres of roads through State forest, which roads are maintained by Forestry Tasmania (FT).
FT is seeking to impose on TAM a toll for the use of the Hawkes Creek roads. The word "toll" is used by FT, as it often is generally, in the sense of a fee for the use of a road or bridge. Previously, under protest at FT's power to impose a toll, TAM had entered into an "access licence" agreement with FT to access the Blackwater mine, by which agreement a "quarterly road toll payment" was paid for the use of FT maintained roads.
No such agreement has been entered into in relation to the Hawkes Creek mine. TAM has applied to this Court for orders under Part 26 of the Supreme Court Rules 2000 (SCR) pursuant to the Court's inherent supervisory powers, or in the alternative, orders of review under the Judicial Review Act 2001. There was some debate about whether FT could be the subject of relief under Part 26 of the Rules, but FT does not dispute that the Judicial Review Act applies to its relevant decisions. (There is an argument about one aspect of review under that Act, but I will deal with it much later in these reasons.) In any event, the parties have agreed that if the applicant succeeds in its argument at this stage, the only relief which should be granted is declaratory in nature. This can be done either by way of the Court's power as recognised in SCR, r103, or by way of s27(1)(c) of the Judicial Review Act.
The relief sought relates to two identified decisions said to have been made by FT, the effect of both of which is, to quote from the originating application, to "charge the applicant … a road toll by way of an 'access licence' … for the use by the applicant of a State forest road, … by reference to the amount of silica transported on the said road and to prohibit the applicant's use of the said road and thereby prevent all mining activities on the applicant's mining site if the charge was not agreed to and/or not paid." The first decision sought to impose an amount of 40 cents per tonne plus GST, whilst the second decision, which followed some negotiations (for want of a better word) sought to impose a rate of $2.78 per tonne. This charge is based on FT's maintenance costs, but it seems that TAM has taken into account a network of roads, wider than the particular roads.
The grounds of the application challenge the statutory power of FT to impose a toll, or indeed any charge. This is because although the toll was sought to be levied by way of an access licence agreement, it remains a "compulsive demand" notwithstanding the device by which it is claimed: The Commonwealth v ColonialCombing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 per Isaacs J at 445. If there is a power to impose a charge, there is a consequential issue as to FT's power to impose a "toll"; the word here being used in the more confined sense of a charge intended to defray the capital or (more relevantly) maintenance costs.
There is a further issue which arises subject to the resolution of the two preceding ones. If there is power to impose a "toll" in the sense just mentioned, TAM challenges the decision as to the rate itself. The grounds of this challenge fall within the description of "irrationality" grounds and include relevant and irrelevant considerations, unreasonableness, and improper purpose and bad faith. I heard some, but not all, of the evidence as to these grounds, but it was agreed that I approach the resolution of the application in stages.
This judgment concerns the first two issues, the existence of the second depending on the resolution of the first. The first question to be decided is whether FT has the power to impose any charge in respect of TAM's use of State forest roads. If there is power to impose a charge, the next question is the nature of the charge. That issue is whether FT may impose a "toll" in the confined sense of one intended to defray maintenance costs and calculated by reference to maintenance costs, whether ultimately expressed in terms of the tonnage taken away from the mine or otherwise. For the reasons which follow, I conclude that TAM has not established that FT does not have the power to impose a charge. Additionally, I can see no limitations on FT imposing a toll, used in the sense just mentioned.
Further facts
Access to TAM's mining lease is by way of one route consisting of a number of differently named roads. The start of the relevant part of these roads is a point on Roger River Road; a public road at that point. The route follows Leenson's Road, Salmon River Road and Chatlee Road. Chatlee Road seems to run into the mining lease area by about 500 metres. To the mining lease, in a general west to south westerly direction, is a distance of 23.1 kilometres. From the commencement point which I have identified, the route crosses about four kilometres of State forest, before travelling over private property for a distance of 1.1 kilometres. The road over private property is a road reserve under the Crown Lands Act 1976. For all intents and purposes, the balance of the road crosses State forest, and accordingly the whole of the road is on Crown Land.
There is evidence that the roads are used by "forestry industry vehicles for carting timber and related activities". Additionally, the roads are used by FT for carting gravel from a quarry which it operates, and which is off Chatlee Road just north of the mining lease. There is another quarry operated by someone other than FT, and which is to the west of Salmon River Road. The operator of that quarry also uses the roads, to the necessary extent. It is convenient if I refer to all of the relevant roads as one, except where it is necessary to distinguish a part.
The term "forest road" is defined in the Forestry Act 1920 (the FA), s4, as meaning:
"(a) any road constructed or maintained by or for the corporation; or
(b)any other road on State forest, other than a State highway, or subsidiary road, within the meaning of the Roads and Jetties Act 1935; or
(c)any other road that is —
(i) on Crown land; and
(ii) being managed by a person for the purpose of timber production; or
(d)…".
Apart from the private land, all of the land through which the road passes is in the Register of Multiple Use Forest Land maintained under s17(2) of the FA and by virtue of the definition in s4B(1)(c), is State forest. The area of the mining lease itself is also in the Register and is State forest. The evidence is that FT maintains the entirety of the road, including by arrangement with the local council that part which crosses over the parcel of private property for 1.1 kilometres. It follows from the application of the definition that because it is maintained by FT, and in any event is on Crown land, the whole of the road is a forest road within the meaning of the FA.
The legislation
TAM principally relies on the Mineral Resources Development Act 1995 (the MRDA), s84(1)(b). The subsection as a whole reads as follows:
"84 Authority of mining lease
(1) A lease authorises the lessee —
(a)to carry out mining operations in the area of land specified in the lease for minerals specified in the lease; and
(b)for that purpose, to enter on, and pass over, Crown land; and
(c)to enter on, or carry out mining operations on, private land within the mining lease if a compensation agreement is in force with the owner or occupier of that land.
(2) …".
Both parties rely on various provisions of the FA. They are as follows:
· s7, which makes the objectives of FT, "As a manager of forest land with a commitment to multiple use, … to optimise:
(a) the economic returns from its wood production activities; and
(b) the benefits to the public and the State on the non-wood values of forests.";
· s8(1), which gives to FT a number of functions. By virtue of s4, "functions" includes duties. The relevant functions are:
"(a)the development, control and delivery of —
(i) land use policy for State forest; and
(ii) sustainable forest management and forest produce production policy;
…
(c)the exclusive management and control of —
(i) all State forest; and
(ii) all forest products on State forest including the processing, removal, selling or other disposition of those forest products; and
(iii) the establishment and tending of forests, and all forest operations, on State forest; and
(iv) the granting of all permits, licences, forest leases and other occupation rights, and the making of all contracts of sale, under this Act;
(d)to use multiple use forest land for wood production and, in a manner that is consistent with sustainable forest management and forest produce production policy, for other purposes including —
(i) the conservation of flora and fauna; and
(ii) the conservation of landforms; and
(iii) the conservation of cultural heritage; and
(iv) the care of the environment including scenery; and
(v) recreation."
· s10(1) which gives "additional functions and powers". They include:
"(a)the promotion and encouragement of the use of State forest for purposes other than wood production, including in particular:
(i) the conservation of flora and fauna; and
(ii) the conservation of landforms; and
(iii) the conservation of cultural heritage; and
(iv) the care of the environment including scenery; and
(v) recreation; and
(vi) in the case of multiple use forest land, the exploration and development of mineral resources;
…
(e)the provision and maintenance of forest roads and other facilities for public access to and through State forest."
FT says that s20B has particular significance. It reads as follows:
"20B Public access to State forest
(1) The corporation must exercise its powers so as to afford members of the public access to State forest for such recreational purposes as are not incompatible with the management of State forest under this Act.
(2) Nothing in subsection (1) prevents the corporation from prohibiting a person from —
(a)entering, or remaining in, an area of State forest —
(i) that has been declared under section 68 of the Fire Service Act 1979 to be an area of extreme fire hazard; or
(ii) that is an area in respect of which another person has a right of exclusive possession; or
(iii) contrary to a restriction contained in a forest management plan pursuant to section 22C(6); or
(iv) …
(b)using a forest road in contravention of the regulations or a forest road that has been temporarily or permanently closed.
(3) Nothing in subsection (1) prevents the corporation from charging a person a
(a)a forest road; or
(b)any facilities or conveniences provided by the corporation in areas of State forest for the benefit of visitors to those areas.
(4) ...".
Associated with s20B is FT's power under s26(2) to close a forest road to all traffic, or to a class of traffic, if it "considers that the closure is necessary or expedient - (a) for the purposes of discharging its responsibilities, or (b) in the interests of safety". Additionally, FT relies on its status as a "Government Business Enterprise" ("GBE") within the meaning of the Government Business Enterprises Act 1995 ("the GBEA"). I will identify the particular provisions in their context.
The parties' arguments
TAM points firstly to the two different objectives of FT as mandated by s7 of the FA. It is given the specific role as manager of forest land with a commitment to multiple use, with objectives to optimise two things. The first is economic return from wood production activities. The second is the benefits to the public and the State of the non-wood values of forests. TAM says that this so-called "dichotomy" is significant. The main thrust of the submission is that it is not an objective or duty of FT that it generate economic returns from the use of State forest for purposes other than wood production.
The following points are put in support of the submission:
· TAM is included in the reference to "the public" in s7(b), and is a member of the public whose activities benefit the State;
· the dichotomy in s7 is carried through to s8(1)(d) which details one of FT's functions as the use of multiple-use forest land for both wood production, and for other activities – one of which is recreation – which activities are not intended to generate economic returns for FT.
· the dichotomy is further reflected in s10(1)(a) which puts (in the case of multiple-use forest land) "the exploration and development of mineral resources" alongside conservation, environmental care and recreation as a purpose other than wood production, for which the use of State forest is to be promoted and encouraged;
· the inclusion of the exploration and development of mineral resources as a purpose under s10(1)(a) is significant, in that such mining activities are obviously commercial, but are put alongside others which, it is said, "are not commercial activities at all", and none of the purposes referred to in s10(1)(a) involve wood production activities.
Consideration of FT's function to promote and encourage the use of State forest for the purposes set out in s10(1)(a), leads to the function and power to provide and maintain forest roads referred to in s10(1)(e). TAM submits that this is directly related to both objectives set out in s7, meaning of course, that the function and power to provide and maintain forest roads is an ancillary part of the objective to optimise the benefits of the non-wood values of forests. As I understand it, TAM's submission is that it follows from all of this, that in the absence of any specific power to impose a charge for the use of forest roads, such action would be contrary to the objective relating to the non-wood values of forests, and the ancillary functions which directly relate to that objective.
Of course, there is reference "to charging a person a fee for the right to use a forest road" in s20B(3) but, in strict terms at least, the simple effect of the provision is that nothing in subs(1) – which requires FT to conditionally exercise its powers so as to afford public access to State forest – prevents such a charge. TAM firstly submits that s20B(3) does not itself confer any power to charge a fee, but simply seems to assume the existence of such a power. The submission is "that it is not sufficiently unambiguous to be properly construed as itself conferring a power …".
TAM relies on the proposition that charges or levies by Executive action can only be imposed by clear, distinct and unambiguous statutory language.[1] TAM points to the absence elsewhere in the FA of any reference to a power to charge fees for the use of forest roads. Secondly, TAM says that if there is such a power, then it must be confined to the context in which it is specifically mentioned. That context is public access to State forest for recreational purposes as referred to in s20B(1).
[1] In support, TAM cites Attorney-General v Wilts United Dairies (1922) 91 LJ KB 897, The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, Dowling v Commissioner of Water Resources [1993] 1 Qd R 70 and Confederation of Passenger Transport UK v Humber Bridge Board [2004] 4 All ER 533 per Clarke LJ at [27].
TAM submits that in any event, s84 of the MRDA "provides a complete answer" to FT's claim that it is entitled to charge for the use of forest roads, at least to the extent that they are on Crown land. TAM makes the following points:
· s84(1)(b) gives to TAM, by virtue of it being a lessee under a mineral lease, unqualified authority to enter on and pass over Crown land;
· the grant of authority in s84(1)(b) is unconditional, and does not require anything more to be done for the authority to be exercised;
· the prohibition in s84(2) on hindering or obstructing a lessee from carrying out any activity under the lease, extends to any hindrance or obstruction to entering on and passing over Crown land for the purpose of carrying out mining operations in the lease area;
· seeking to extract a toll for the use of the road under threat of denying access is a hindrance or obstruction within the meaning of s84(2);
· the authority under s84(1)(b) overrides any right FT may have to close a forest road by way of its exclusive management and control of State forest under s8(1)(c) of the FA, or the specific power to close a forest road if "the closure is necessary or expedient for the purposes of discharging FT's responsibilities" under s26 of that Act.
Lastly, TAM submits that if there is power to impose a charge, it is not a power to impose a "toll" in the confined sense of being referable to maintenance costs. As argued, the issue seemed to be confined to whether, if the power is to be found in s20B(3), such a toll could be imposed. This may have arisen from FT's initial and almost exclusive reliance on the section as the source of power. In short, TAM's argument is that there "is no basis for construing a bare power to charge a fee for the right to use a forest road in order to obtain access to or through a State forest for recreational purposes as a power to defray the cost of providing and maintaining a forest road by imposing a fee calculated by reference to those costs".
As I have just alluded to, in correspondence with TAM, FT asserted that it "derives its entitlement to charge a fee to any person for the right to use a forest road from s20B… ." The argument is now more broadly based. FT submits that there is nothing to prevent it obtaining economic returns from any of its activities other than those of wood production. Putting it the other way, the submission is that FT is able to generate income from any of its activities. The starting point for the argument is really FT's status as a GBE. FT is a body corporate under the GBEA, although it continues to be taken to be the Crown.[2]
[2] Under s110 of the GBEA, a GBE specified in Schedule 8 to the Act is taken not to be the Crown for the purposes of that or any other Act, and does not have any status, privilege or immunity of the Crown. FT is not specified in Schedule 8. However, by s108 of the GBEA, FT is not the Crown for the purposes of the Crown Lands Act 1976.
The principal objectives of a GBE include the performance of its functions and the exercise of its powers so as to be a successful business, the performance on behalf of the State of its community service obligations in an efficient and effective manner, and the performance of any other objectives specified in the particular Act by or under which it is established. Under s9(1) of the GBEA, FT's powers include:
"(i) to set charges, terms and conditions relating to work done, or services, goods or information supplied, by it except where the Portfolio Act provides otherwise;
…
(k)to carry on any business which may conveniently be carried on in conjunction with the performance of its functions;
(l)to do all other things it is authorised to do by or under this or any other Act;
(m)to do all things necessary or convenient to be done in connection with, or incidental to, the performance and exercise of its functions and powers."
Referring in particular to the power set out in s9(1)(i) of the GBEA, FT says that the powers given to a GBE are sufficient in themselves to authorise the imposition of a charge for the commercial use of a forest road, being a charge for the service of providing a maintained road and permitting its use for commercial purposes. FT also relies on its exclusive management and control of State forest under s8(1)(c) of the FA, and the asserted ability to charge "a person" a fee for the right to use a forest road under s20B(3) of that Act.
Lastly, FT submits that the provisions of the two Acts are capable of being construed so that they operate without any conflict. It relies on the presumption noted in Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 per Kirby P at 294 that Parliament intended two statutes which are in apparent conflict to work harmoniously together so that each operates within its respective field of application. See also Manly Council v Malouf (2004) 61 NSWLR 394 at 408. In this case, there is no need to go further than answering the question whether there is any irreconcilable conflict between the relevant provisions.
FT says that a construction of the provisions which avoids irreconcilable inconsistency is one which recognises TAM's right to enter on, and pass over, the relevant Crown land, but otherwise than by using forest roads. If TAM wishes to use the road as its means of ingress and egress with respect to the mining lease area, payment for the use of that road is not inconsistent with the right.
In response, TAM says that the only harmonious construction is that for which it contends. Unhindered and unobstructed access across Crown land is complementary to, and facilitative of, the function of FT to promote and encourage the use of State forest for purposes other than wood production. Those purpose include, in the case of multiple-use forest land, the exploration and development of mineral resources. That is a non-wood value of forests, and it is one of FT's principal objectives to optimise the benefits to the public and the State of such a value.
Some further issues
It is convenient to separately set out these arguments. The first issue is one about FT's powers under the GBEA, and an argument of TAM's based on legislative history, which argument suggests that the powers under s9 of the GBEA do not extend to the imposition of a charge for the use of a forest road.
The Forest Amendment (Forestry Corporation) Act 1994 made FT a corporation. It repealed the section dealing with the former Commission's powers, and substituted a new s9, giving the corporation power to do all things necessary or convenient to be done in connection with the performance of its functions. Section 9(2) contained the following:
"(2) Without limiting subsection (1), the corporation has power to: —
(a)…
(b)set charges, terms and conditions relating to work done, services, goods, facilities or information supplied, or rights granted by it; and
(c)impose charges, and approve the imposition of charges by other persons, for the use of forest roads for the transport of forest products and other things in the course of carrying on, or the purposes of, business;
…".
Section 9 of the FA in that form was repealed by the Government Business Enterprises (Consequential Amendments) (No 2) Act 1995. The repealed s9(2)(b) is in similar terms to s9(1)(h) of the GBEA. However, generic powers were given to GBEs, and the specific power which FT previously had to impose a charge for the use of forest roads for the transport of things in the course of carrying on, or for the purposes of, a business, was discarded. TAM says that it is significant that Parliament saw fit to specifically empower FT when it became a corporation, but did nothing at all about preserving that power when the corporation became a GBE. FT says this is of no consequence, and that the general powers of a GBE, combined with the specific provisions of the FA, give it such a power.
The second issue concerns s10(2). That reads as follows:
"(2) Without limiting the purposes for which that portion of the funds of the corporation consisting of money provided by Parliament may be used, the costs and expenses incurred by the corporation in the performance and exercise of the functions and powers specified in subsection (1) are to be paid out of money provided by Parliament for the purpose."
Quoting from the grounds of the originating application, TAM argues that s10(2) means that FT "is prohibited from using its powers in relation to the … forest road by use of any money other than money provided by Parliament for the purpose of the promotion and encouragement of the use of State forest it provided for in s10(1)(a)." Of course, TAM highlights the purpose of the promotion and encouragement of the exploration and development of mineral resources or multiple use forest land referred to in s10(1)(a)(vi). Even accepting the power to charge a fee for the right to use a forest road for access to State forest for a recreational purpose, that does not mean that there is a power to impose a charge by reference to the cost to FT of the provision and maintenance of forest roads.
FT's response is that the provision requires costs and expenses incurred by FT in the performance and exercise of its functions and powers under s10(1), to have priority in payment over other expenses. That is to say, money for the performance and exercise of the function and powers, comes first out of money provided by Parliament for the purpose. I observe that the operation of the subsection presupposes the provision by Parliament of money for the purpose of the performance and exercise of the s10(1) function and powers. If no money is provided "for the purpose", then on its face, the section would have no operation. In any event, it presupposes money being made available by Parliament. I was told by counsel for FT, without objection, that no money has been made available to FT by Parliament for some time. I am not sure whether that meant generally, or for the purpose of the performance and exercise of the functions and powers in s10(1).
Discussion
The exercise of course is to decide, on the basis of the three relevant pieces of legislation, what Parliament intended as to FT's powers to impose a charge in circumstances such as these. Unfortunately, that intention has not been made easily discernible.[3] Although not directly relevant to the questions which I need to answer, it seems to me that there is a background issue of the uncertainty of the position of public corporations, particularly those taking the form of a GBE, a phenomenon now not uncommon in Australia and elsewhere.
[3] Compare for instance the clear and unequivocal conferral of a power to levy and collect fees and charges given by the Port Arthur Historic Site Management Authority Act 1987, s8(1)(l), to the Authority.
Public corporations have long been a feature of government administration. When given the specific objective of operating as a successful business, it raises particular complexities in the context of their dealings with the public. There may be some tension between the activities of a publicly owned corporation acting on a commercial basis, and the interests of the public. As a public authority, a GBE would still be required to act in the public interest because it has no legitimate private interest.[4]
[4] In Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, Finn J dealt with a number of claims against a public corporation arising out of a tender process. Matters which his Honour considered included the implication in law of the duty of good faith and fair dealing, generally, in contractual performance, and whether the duty to deal fairly in the performance of the contract should be implied as a necessary incident because the corporation was an agency of government or a public body expected to act fairly with those with whom it deals in such contracts: see 191 – 197. At 179 his Honour described the case as sitting "unhappily on two rather significant fissures in Australian jurisprudence". The first related to "statutory corporations that by statute are subject to prescribed (hence, presumably, correspondingly limited) powers of ministerial direction". His Honour questioned whether they fell within the Executive, or whether they were a fourth arm of government, and after noting how the case before him was to be put, continued:
"I would have to say, though, that the absence of authoritative guidance on the place of statutory corporations in our system of government — and, importantly, on their proper relationship both with Parliament and the Executive — is an abiding difficulty in divining the proper resolution of cases of this variety."
In the end, resolution of the issues in this case comes down to the application of principles of statutory interpretation but, as I have observed, the waters of parliamentary intention are muddied a little, by giving to a public corporation a desired characteristic of a successful business operating in a broad commercial context within its field of operation. It seems to me that the best approach in the present case is to firstly resolve whether or not FT has power to impose a charge for the use of a forest road, irrespective of what effect s84(1)(b) of the MRDA has. If there is no such power, then there is no need to consider that provision. If the power exists, there is a need to consider the extent to which it is affected by s84(1)(B).
Does FT have the power to impose a charge?
Section 5(1) of the GBEA says that the provisions of that Act and of the "Portfolio Act" – in this case, the FA – are to be read as one Act. Section 5(2) provides that in the event of any inconsistency between provisions in the two, the provisions in the GBEA prevail, and the provision of the Portfolio Act is invalid to the extent of the inconsistency except where the Portfolio Act expressly provides otherwise.
The following short summary is produced by reading the relevant parts of the two Acts as one, and may be helpful in providing an overview of the combined operation.
· FT must perform its functions and exercise its powers so as to be a successful business.
· FT may set charges relating to services supplied by it except where the FA provides otherwise, and may do all things necessary and convenient to be done in connection with, or incidental to, the performance and exercise of its functions and powers.
· One of two of FT's statutory objectives is to optimise the benefits to the public and the State of the non-wood values of forests, and is given the exclusive management and control of all State forest. This, by virtue of s28 of the FA, extends to the ability to grant easements over Crown land in State forest.
· One of FT's functions is to use multiple-use forest land for purposes other than wood production, an additional function or power being to promote and encourage such use of State forest for purposes which include in particular (amongst others) "in the case of multiple use forest land, the exploration and development of mineral resources".
· FT has a function and power of the provision and maintenance of forest roads[5] and other facilities for public access to and through State forest.
· FT is required to exercise its powers so as to afford members of the public access to State forest for such recreational purposes as are not incompatible with the management of the forest, but that does not prevent it from charging a person a fee for the right to use a forest road, or any facilities or conveniences provided by FT in areas of State forest for the benefit of visitors.
[5] There is some difficulty applying the definition to "forest roads" as used in s10(1)(e). There is an aspect of circularity in that "forest road" means any road constructed or maintained by FT. Under the definition some roads are "forest roads" without construction or maintenance by FT. Further, a road which was not constructed by FT but is maintained by it, is a "forest road".
The general approach to construing provisions which purportedly impose a tax or charge is to apply the usual principles of statutory interpretation, but with the rider that such an intention must clearly be seen in the words. That is, the words are to be given their ordinary and natural meaning viewed in their context, but "clear and unambiguous language must be used before a financial burden is imposed": Epic Energy (WA) Nominees Pty Ltd v Michael (2003) 27 WAR 515 at 521 [25]. See also the cases cited in footnote 1 par[21] of these reasons, and see generally, Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) at 312 – 314 [9.35].
Has Parliament in clear terms authorised the imposition of a charge for the use of a forest road?
To begin with, Parliament has given FT exclusive management and control of State forest. The effect of that is self evident, FT's powers of excluding all persons being qualified only by s20B(1): Richardson v Walford (1997) 6 Tas R 426 at 430. I now turn to s20B(3)(a). On its face there seems to be merit in TAM's submission that this provision is not sufficient of itself to create the power to charge a fee for the right to use a forest road. The statement that an earlier subsection (in the same section) does not prevent the charging of such a fee is arguably a long way from specifically authorising the charging of that fee. It can be interpreted as an acknowledgment that the power exists elsewhere, but does not of itself achieve that object.
On the other hand, the provision was enacted in 1991 before FT became a corporation. There was then a Commission which, under s9 of the FA as it then stood, exercised the powers and carried out the functions of a Department. That department had the management and control of, amongst other things, the "collection and recovery of all rents, fees, royalties, charges and revenues".[6] From the statutory scheme, it seems that all such things were set by the relevant regulations, or were as otherwise prescribed. I can find no reference in any part of the statutory scheme to the charging of a fee for the use of a forest road until 1994 when the Commission was made a corporation. It might follow that Parliament's purpose behind s20B(3) was to create the power to charge for the use of forest roads and "facilities or conveniences … for the benefit of visitors … ". For present purposes, I am prepared to assume so.
[6] See for instance the Forestry Regulations 1976, and the replacement Forestry Regulations 1993, which were rescinded in 1999.
However, I do not think that assists FT in its argument. I would in any event hold that the identity of "a person" who may be charged the fee for the right to use the forest road, is restricted to that class of persons who seek access to State forest for recreational purposes. This is because if the power to charge a fee is created by s20B(3), the words creating that power have to be put in their context. The context provided by subsection (1) is public access to State forest for such recreational purposes as are not incompatible with the management of State forest under the Act. The use of forest roads is dealt with, albeit as a separate paragraph, in the same subsection as the a paragraph which specifically relates to facilities or conveniences for visitors.
Additionally, one of the ordinary meanings of "fee" would suggest the correctness of this construction. In addition to being a payment to a professional person or body for services, the word has an additional meaning of a sum paid for a admission to a public building: New Shorter Oxford English Dictionary (1993). As suggested by the Macquarie Dictionary, this might imply a charge for the privilege of admission. As to access to State forest being a privilege, FT has exclusive management and control of State forest, the access contemplated by s20B(1) is conditional, and FT may, under s26(2), close any forest road if it is necessary or expedient.
There is no other provision in the FA which could, either alone, or in conjunction with FT's exclusive management or control of State forest, give rise to the power to impose a charge. In my view the only source of power can be s9(1)(i) of the GBEA. That, it will be recalled, gives FT the power to set charges relating to services supplied, in addition to work done and goods or information supplied. Other than an assertion that it was relying on it to afford the power, and that FT was providing a service, FT made no submissions as to why the provision would apply in the circumstances. I think the wording of the provision needs to be considered.
The use of the word "set" is a little curious, although in the provision the word also relates to "terms and conditions". I do not imagine that there can be any quarrel with the proposition that "setting" a charge carries with it the power to actually impose it[7]. Next, the word "service" has many meanings. In I W v City of Perth (1997) 191 CLR 1, the issue was whether the giving of planning approvals by a local council was the provision of a service for the purposes of anti-discrimination legislation. At 11, Brennan CJ and McHugh J noted that the term "services" had a wide meaning, and referred to the Macquarie Dictionary definition which included a meaning of the provision "of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance".
[7] The GBEA does not contain any provisions dealing with the creation of liability for charges imposed. However, where a contractual or restitutional remedy would not arise, the law is that where an act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery unless the legislation contains some provision to the contrary. See for example Secretary, Department of Transport (Vic) v Commissioner of Taxation (Cth) (2009) 261 ALR 39 at 53.
At 12 their Honours noted common examples of services provided by councils, such as the supply of water, and said: "Moreover, in an appropriate case allowing the use of property or facilities owned by or under the Council's control may constitute the provision of a service by that Council". In that respect, I note that the Macquarie Dictionary definition also includes a meaning of "supplying … any articles, commodities, activities etc, required or demanded".
From all of that, I think the word "services" as used in the GBEA encompasses the provision by FT of the use of a road, on land of which it has exclusive management control, and which it maintains. It is not necessary to go further, but it may be that the power in s9(1)(m) to do all things necessary or convenient to be done in connection with, or incidental, to the performance and exercise of its functions and powers, is an alternative source of the power. Again, this was relied on but no justification advanced for its application. I think that the imposition of a charge for the use of a forest road might be said to be something necessarily or conveniently done in connection with, or incidental, to the performance of FT's function and power to provide and maintain forest roads.
Ordinarily, it is recognised that a statutory power to do something carries with it the implied power to do things which are reasonably ancillary to the purpose. This is a recognition that there may be some things which are not expressly said but which need to be done in order to give effect to the statutory object and power: see the discussion by Young J in Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 at 536 – 537. Commonly, as with s9(1) of the GBEA, express provision is made for doing things incidental to the execution of specific functions and powers. Those things need to be both "necessary or convenient", and done "in connection with, or incidental, to" such execution.
"Necessary" may well mean reasonably necessary, but in any event the act need only be "convenient". It is true though that the words "necessary" or "convenient" in this context involve an objective standard of reasonableness: Epic Energy (WA) Nominees Pty Ltd v Michael (above) at 523 [43] – [44]. Used in this type of context, the word "incidental" would mean that the matter can "sufficiently be characterised as tied to achieving the purpose": Metro Transport Sydney Pty Ltd v City of Sydney Council [2009] NSWLEC 37 at [27]. But in this setting, words such as "incidental" or "supplemental" are of the widest import: The City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 1214 at [200].
Some guidance as to the parameters of the operation of such a provision can be gained from the Streetscape Projects case. The City was specifically empowered to provide goods, services and facilities. It had an additional power to do all such things that were supplemental, incidental or consequential to the performance of its functions. It developed a particular type of multifunction street pole, over which it claimed intellectual property, and entered into an agreement licensing its use. One of the issues was whether it was within the City's power to deal with the actual intellectual property on a commercial basis. Einstein J held that it fell within the "incidental" power. The distinction between something which was convenient or economically advantageous, as opposed to "incidental" was rejected: see [198] – [208]. It may well be said that the imposition of a charge to defray the costs of providing and maintaining roads, which is a function and power of FT, would be something which is necessary or conveniently done, and connected to or incidental to the execution of that function.
The remaining point in relation to this issue of power to impose the charge, is whether the FA "provides otherwise" than that FT may set charges for work done, or services, goods or information supplied. By its terms, s9(1)(i) applies to FT unless the FA provides otherwise. (By virtue of s5 of GBEA, s9(1)(m) applies, unless the FA expressly provides otherwise.)
The principal feature of the FA which arises for consideration is the function to promote and encourage the use of multiple use forest land for the purpose of the exploration and development of mineral resources. It might be argued that imposing a charge on an active miner for the use of forest roads to access the mine, would be contrary to that function. Nonetheless, I do not think that the provision creating this function is one which provides otherwise in terms of setting charges for the use of the road. I do not think that Parliament should be taken as having intended that it operate to prevent charges being made for the use of forest roads by a miner which has an established mine, and one operating on a commercial basis.
Furthermore, the terms of s20B(3) contemplate the power to charge for the use of a forest road. The point is that assuming the section is concerned with recreational purposes, "recreation" is also a purpose other than wood production, the promotion and encouragement of which is a function under s10(1)(a) of the FA. I would add that although it is odd that in 1995 the specific power to impose charges for the use of forest roads disappeared with the repeal of s9(2)(c) of the FA, I do not consider that in all of the legislative change, Parliament should be attributed with the intention that such a power be proscribed.
Consideration of s10(2) also arises. It will be recalled that this requires FT to pay costs and expenses incurred by it in the performance and exercise of its functions and powers under s10(1) out of money provided by Parliament for the purpose. In my view the effect of this subsection is not to "provide otherwise" in relation to setting charges for the use of forest roads. I have already commented that the subsection presupposes the provision by Parliament of money for the particular purpose, and if no money is provided, then the section has no practical operation.
For those reasons, I hold that by virtue of s8(1)(c) of the FA and s9(1)(i) of the GBEA (and – if it be necessary – s9(1)(m) of that Act), FT has the power to impose a charge for TAM's use of the forest road. That leads to a consideration of the nature of the charge which may be imposed. As to that issue, I am not able to see any limitation on the imposition of a "toll" in the confined sense as used by TAM, that is, a toll calculated by reference to maintenance costs.
However, although the point was not argued, it seems to me that there may be some limitation on what FT can charge for the use of a forest road. It does seem questionable whether FT can impose any charge which it sees fit. A controlling mechanism on the exercise of the power in that respect might be one of reasonableness. This point may trespass onto, or overlap with, the issues yet to be determined concerning the charge itself, but I think it is appropriate to raise it here.
In the Epic Energy case (above), McKechnie J was dealing with a challenge to the validity of the Gas Pipeline Access (WA) (Funding) Regulations 1999 and the proper construction of those regulations. Notices of charges for the services of the Gas Pipelines Access Regulator had been served. A regulation in question enabled the Regulator to give written notice requiring the person to pay a charge in connection with the performance of a particular function of the Regulator, or the doing of anything that was necessary or convenient to be done, or in connection with the performance of that function. Having held that the regulations in relation to the recovery of the Regulator's costs were within power and valid, his Honour considered the "service charges" under the particular regulation.
At 523 [41], his Honour said that the regulation required a connection between the performance of a function and the imposition of a charge, and noted Epic Energy's submission that only reasonable costs which are attributable to matters which are reasonably necessary or convenient to be done, may be the subject of a service charge. At 524 he noted the Regulator's position:
"46 The Regulator accepts that the regulations import the following:
• the charge must reflect the costs actually incurred by the Regulator;
• the charge must reflect costs incurred by the Regulator acting reasonably in the performance of functions under the Act;
• the charge must be reasonably connected with the performance of functions under the Act.
47The Regulator submits that there is no requirement to construe the regulations as requiring the following additional elements:
• the charge must be reasonably related to the performance of the functions in relation to the person being charged; or
• the charge must be for an amount that is reasonable."
His Honour did not accept this submission. He noted some particular aspects of the regulation which militated against the Regulator's position, and continued at 524 – 525:
"50There are additional reasons why I would infer a requirement of reasonableness into the costs which are to be converted into service charges. Although regulations are subject to scrutiny by Parliament, the actual costs cannot be scrutinised by Parliament. Nor need they be scrutinised elsewhere. The Regulator may have no particular interest in scrutinising costs if they can be passed on by raising a service charge. …
51The fact that the costs cannot be scrutinised by Parliament provides a further reason for construing the regulations as implicitly invoking a notion of reasonableness into the service charges.
…
55It is hardly to be supposed that Parliament intended services rendered to a government agency would be free from scrutiny simply because all costs would be directly passed on to a third party for payment. Such a construction would not promote the purpose of good governance, whereas a requirement for reasonableness would.
56A construction to import a requirement of reasonableness would not create any particular difficulty or confusion. The Regulator has power to recover the service charge as a debt. In appropriate cases, the question of the reasonableness of the service charge would be determined by a court of competent jurisdiction as to the true extent of the debt."
McKechnie J went on to detail a number of aspects of the concept of reasonableness which should be imported into the regulation under consideration. There is no need for me to detail these. It is at least arguable in this case that reasonableness, in the sense of a reasonable relationship with the performance of the functions relating to the person being charged, and reasonableness of amounts charged, should be implied into the power to set a charge for the use of a forest road.
As I have said, the point was not argued, but it does seem to intersect with what remains to be decided. At this stage at least, I will not consider the point further. Subject of course, to the attitudes and wishes of the parties, in practical terms I see no difficulties if the point is raised in any further hearing of what remains of the application.
The effect of s84(1)(b) of the MRDA
Section 84(1)(b) enables the lessee under a mining lease to enter on, and pass over, Crown land for the purpose of carrying out mining operations in the area of land specified in the lease. Section 3 of the MRDA defines "Crown land" as meaning any land vested in the Crown. That includes State forest land, and land reserved under the Nature Conservation Act 2002, although the Crown Lands Act 1976, by s2A of that Act, does not apply to such land. The term "mining operations" is defined in s3 as meaning "any operations or work carried out on a lease area (a) to obtain or treat minerals, or (b) to store or contain minerals generated by mining on that lease area, or (c) associated with mining."
Plainly enough, the provision provides the authority in relation to any Crown land, provided it is that the entry on, and passing over, of that land is for the specified purposes. Neither counsel seemed keen to venture any submission as to the full import of the provision, although I would think there must be some limitations in its application. For instance, there is no apparent limitation on the location of the Crown land in respect of which the authority is given. The limitation is contained in the purpose of the entry. In this respect, I note that TAM's actual lease contains language which reflects s84, but limits the authority over Crown land to land which is adjacent to the lease area.
Looking at the apparent purpose of the provision might assist in assessing the nature and extent of its operation. It seems that no other jurisdiction in Australia has a similar provision. No similar provision was contained in the predecessor to the MRDA, the Mining Act 1929, although the holder of a miner's right was able to enter upon Crown land not in the lawful possession or occupation of any person, for the purpose of marking out and taking possession of a claim of a prescribed area.
What may have given rise to the enactment of the provision, at least in an underlying sense, is the state of law concerning what rights, if any, the public has in relation to Crown land, whether it be unallocated or the subject of reservation, but where there is no apparent restriction on entry. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35, the court was considering a claim for certain areas of land at Shoalhaven Heads in accordance with the Aboriginal Land Rights Act 1983 (NSW). Claimable land included land that was not lawfully used or occupied. As to some parcels of the land, the Minister argue that lawful use existed in use by the public for recreational purposes. After an extensive review of the parties' submissions, her Honour said:
"47The common law recognises certain common or public rights, as the authorities noted by the Land Council disclose. Such rights have been said to include passing and re-passing along a highway, fishing in the sea and tidal waters, navigating the sea and tidal waters, and, perhaps, the right to cross the foreshore when dry for fishing and when in peril (Brinckman v Matley and the cases cited therein). These rights are sourced from different principles, and are amenable to alteration or abrogation by statute (The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 at [60] and [282] and Harper at 329). Their extent has long been recognised to involve a 'difficult question' (Williams-Ellis v Cobb [1935] 1 KB 310 at 320 cited in Georgeski at [84] and in Gumana v Northern Territory of Australia at [89]).
48The decisions relied on by the Minister … do not support the existence of any public or common right to enter upon and use Crown land merely because the land is unenclosed, unfenced, open, and accessible public land, not subject to any outstanding estate or interest granted to any person, and in respect of which no prohibition on entry exists.
…
55It follows that, when analysed, none of the decisions relied on by the Minister establish the existence of the asserted generalised and amorphous right of the public to enter upon and use Crown land not dedicated or reserved for any public purpose if it happens not to be enclosed or sign-posted, unless and until the Crown says to the contrary. Nor, for the reasons given above, does the Crown Lands Act create any such right merely be specifying certain activities that are offences."
It may be that Parliament thought it necessary to clarify this position as it related to the use of Crown land by the holder of a mining lease. Whatever be the case, the provision is certainly, on the face of it, of broad general application. It might be analogous to the grant of a right-of-way where the route over the servient tenement is undefined. The grant is not necessarily void, with the grantee having to take "the nearest way he can": Wimbledon and Putney Commons Conservators v Dixon (1875) LR 1 Ch D 362 at 369; Maurice Toltz Pty Ltd v Macy's Emporium Pty Ltd [1970] 1 NSWR 474 at 480. However, I do not need to decide the precise effect and extent of the provision's operation.
FT's submissions on the operation of the different statutes raise the principle of statutory construction that where there is a conflict between specific provisions and more general later provisions, the specific provisions prevail: generalia specialibus non derogant. See generally Statutory Interpretation in Australia 7th ed at 271 – 272 [7.20] – [7.22]. In The Ombudsman v Laughton (2005) 64 NSWLR 114, Spigelman CJ at 118 [19] explained the situation as follows:
"The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character."
In the approach to any given case, the underlying principle needs to be addressed first. Is there true inconsistency between the provisions? A process of reconciliation may be necessary to resolve apparent conflicts. To apply the maxim, the court needs to be satisfied that the two provisions are truly inconsistent and cannot be reconciled, although that does "not prevent the underlying principle being invoked when determining whether or not a conflict is in fact irreconcilable" Laughton at 118 [23].
In Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282, Kirby P, in discussing the maxim, referred to a number of principles which had emerged from decisions on its application. At 294 – 295, his Honour set out one of those principles, (references omitted):
"4In giving meaning to the language used by Parliament in succeeding statutory provisions, the court will not look to hypothetical or possible conflicts. Legislation being concerned with the highly practical business of lawmaking, the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises. In answering this question it is relevant to consider whether one of the statutes applies to a special class or subject matter whereas the other applies to a more general or wider subject matter:.. ."
The view I take is that those provisions of the FA and the GBEA which give to FT the relevant powers, are not irreconcilably in conflict with s84(1)(b) of the MRDA. Parliament has provided for a detailed regime for the management and control of State forest by a corporation to which it has given specific powers to set charges, and to do all things necessary or convenient to be done in connection with, or incidental to, those functions and powers. Section 84(1)(b) applies very generally to all Crown land. Further, s84(1)(b) was enacted after those provisions, although not by much. The generality of that provision must mean that Parliament is taken to have intended that it operates subject to any existing particular regime applicable to the Crown land in question. An obvious example is reserved land in one of the classes provided for under the Nature Conservation Act, s11, one such classes being "national park".
In this case, the Crown land the subject of the purported right to enter on and pass over, is State forest, and obviously the subject of the detailed provisions of the earlier FA enactment. The management and control of State forest is given to FT which, in turn, has the powers of a GBE. It follows that any right to enter on and pass over Crown land afforded by s84(1)(b) is to be governed by particular provisions which relate to the land in question. Accordingly, I hold that s84(1)(b) does not operate to make TAM immune from any charge sought to be imposed by FT for the use of the forest road.
Resolution
The JRA – a decision under an enactment?
There was a preliminary point which was taken by FT but which is more conveniently dealt with now. It is that any decision taken by it to impose a charge is not a decision "proposed to be made, or required to be made, under an enactment" within the meaning of the JRA, s4(1). Because of the scope of this Court's supervisory powers, and the power to grant declaratory relief, it seems to me to be strictly unnecessary to resolve it. However, as it might have some consequences in relation to further arguments which may be had in this case, I will deal with it.
The submission relies on the second criterion in the test set out in Griffith University v Tang (2005) 221 CLR 99 at 130 – 131 [89], and is that a decision to impose a charge is not one which itself confers, alters, or otherwise affects legal rights or obligations. I must say that I had some difficulty in following it, but as I understand the argument it is a follows:
· FT has the power to enter into contracts.
· The grant of such a capacity "does not suffice to endow subsequent contracts with the character of having been made under that enactment": Tang at [82].
· FT has the exclusive management and control of State forest, inherent in which is the power to require payment for the use of a forest road, which payment may be the subject of a contract as is the case with the Blackwater Mine.
· TAM has no "inherent legal right" to use the road for commercial purposes.
· The end point of the argument is that any decision to impose a charge, or to deny access for commercial purposes, is a commercial decision made pursuant to FT's contractual powers given to it as a corporation, and specifically given to it by s9(1)(c) of the GBEA.
FT relies on the decision in Khuu & Lee Pty Ltd v Adelaide City Corporation (2011) 110 SASR 235. In that case, a local council licensed the use of areas for the purpose of a vegetable stall in a market. It resolved not to renew the licence relating to one of the areas. Proceedings for judicial review were dismissed. On appeal, it was held that the source of the council's power to enter into a lease, or grant a licence to occupy a space in the market, was its general power to contract, and not a statutory power to grant a lease or licence over community land given to it by local government legislation. It was further held that the decision was "an ordinary decision made in the course of the conventional commercial relationship": per Vanstone J at 240, [19] (Sulan and Peek JJ agreeing). That case is clearly and readily distinguishable from this. It is clear that a decision to terminate a contract entered into with general statutory authority, is usually founded on the contract itself rather than the enactment: see for example Australian National University v Burns (1982) 64 FLR 166; Post Office Agents' Association Ltd v Australian Postal Commission (1988) 84 ALR 563.
In this case TAM asserts a right to use the road unhindered by commercial impost or otherwise. In that debate, FT relies on its powers under the FA to control State forest and to regulate access to it, together with its powers as a GBE. It particularly relied on its power to charge a fee for the right to use a forest road. It is quite clear that the only way in which the fee can be unilaterally imposed is by way of FT's statutory powers. Any decision to impose a fee by way of "compulsive demand" must of necessity be one which at least alters or affects TAM's legal obligations. Whether the existence of the power to impose a charge leads, or might lead, one way or another, to a commercial arrangement, is irrelevant. Any such decision is, I think, undoubtedly a decision "made under an enactment".
Outcome
At this point at least, TAM has failed to persuade me that it is entitled to any declaratory relief. Subject to hearing from the parties, I will resume the hearing of the application for review. That will deal with FT's decision as it relates to the quantum of the charge which it seeks to impose. In the meantime, the only order required is one adjourning the further hearing of the application to a date to be fixed.
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