Commonwealth v Western Australia

1. Wardens Court (Perth), 23 June 1996, per Warden P G Malone SM (in the matter of an application for exploration licence 70/1425 and objection 63H/934). Although in terms confined to the application of Mineral Sand Mining & Development Pty Ltd, the reasoning was equally applicable to the application of Enmic Pty Ltd and has been so treated. 2. On 6 November 1996. 3. By order of Gummow J (in chambers): The Commonwealth v Western Australia (Transcript of Proceedings; High Court of Australia; 25 May 1998) at 29-30.

162. Affidavit material filed in the prohibition proceedings was left before the Court. It gives some background information, much of it in the public record, about the use of the Lancelin Training Area in Western Australia. It is a defence practice area (DPA) under the Defence Force Regulations (Cth) made pursuant to the Defence Act 1903 Cth (s 124). However, so far as the cross-demurrers are concerned, they confine attention to the facts which the parties have severally pleaded. They each ask whether those facts, if established, would have the legal consequences which the parties separately assert [110] . If the facts pleaded are insufficient, in law, to have the consequences suggested, the claim or counterclaim concerned must be sent for trial in the ordinary way.

1. Bond v The Commonwealth (1903) 1 CLR 13; South Australia v The Commonwealth (1962) 108 CLR 130 at 142; Levy v Victoria (1997) 189 CLR 579 at 649.

163. In elaboration of its demurrer, Western Australia annexed to its pleading a number of original documents, being those connected with two grants of interests in fee simple (Locations 3989 and 4004) and the special lease (Location 3988) all within the DPA. As well, Western Australia annexed the authorities approved under the Defence Act [111] and declarations made pursuant to the Defence Force Regulations (reg 49(1)). The latter define the DPA in question, and the area of sea off the coast which was declared part of the DPA for the purposes of the Regulations. According to the declarations in force at the relevant time, and still in force, the DPA may be used for naval gunnery and air to surface weapons firing [112] .

1. s 69. This section has since been repealed: Statute Law (Miscellaneous Provisions) Act (No 1) 1983 Cth, Sch 1. 2. Declarations of 5 July 1985 and 17 October 1994. See Commonwealth of Australia Gazette, S 289, 25 July 1985 at p 6; Commonwealth of Australia Gazette, GN 46, 23 November 1994 at p 2995.

164. The outer perimeter of the DPA, extending into the sea, defines its boundaries. The inner perimeter defines the interest acquired by the Commonwealth from Western Australia under the special lease (Location 3988). The two areas comprising the fee simple grant are within that area (Locations 3989 and 4004). The other lines on the map portray the perimeters of the land referred to in various mineral exploration licence applications lodged with the Wardens. It is sufficient to note that some of these extend over land held by the Commonwealth in fee simple and under the special lease. Some extend into the area within the outer perimeter where the land is not held by the Commonwealth pursuant to any grant of leasehold or freehold. This is unalienated Crown land of the State of Western Australia. The Commonwealth's interest in the land arises only as that land has been designated part of the DPA. A map shown in the attached Figure makes the position clearer (see map following p 456).

The Commonwealth's claim for relief is not theoretical or premature

165. I agree with Gummow J that, properly construed, the Mining Act of Western Australia does not bind the Commonwealth (or the Crown in right of the Commonwealth) and does not apply to the land held by the Commonwealth pursuant to the grants in fee simple or under the special lease. Other considerations arise in relation to the balance of the DPA. I also agree with Gummow J's reasons for holding that the Mining Act is not made applicable to the areas of land acquired in fee simple by force of the Commonwealth Places (Application of Laws) Act 1970 Cth, s 4(1). Similarly, I agree that the Judiciary Act 1903 Cth, s 64 cannot apply (even if The Commonwealth v Evans Deakin Industries Ltd [113] is correctly decided [114] ) to import into the rights of the parties the entitlements and obligations laid down by the Mining Act which do not, by their terms, apply to them. On this question, I also agree with the additional reasons given by Hayne J for coming to that opinion. The result, if the matter stopped here, is that the Commonwealth would be entitled to limited declaratory relief with respect to the freehold and leasehold areas. But the matter does not stop here. A more fundamental problem arises requiring broader relief.

1. (1986) 161 CLR 254 at 267. 2. cf Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 582-583, 604.

166. All of the foregoing conclusions have no greater effect than to demolish the primary foundation of Western Australia's demurrer, relying as it chiefly does upon the State's attempt to apply to the Commonwealth's freehold and leasehold lands the detailed regime of the State Mining Act which the Wardens have upheld. However, it seems apparent from the cross-demurrers, the history of the litigation and the relief which the parties severally seek from this Court, that such conclusion by no means resolves the practical dispute now before us. Gummow J and Hayne J have expressed the opinion that the other issues between the Commonwealth and Western Australia are not crystallised at this stage [115] , are premature or hypothetical [116] . Attractive as it would be to agree in those propositions, I cannot do so.

1. The Commonwealth v Western Australia (1999) 196 CLR 392 at 443, per Gummow J. 2. The Commonwealth v Western Australia (1999) 196 CLR 392 at 479, per Hayne J.

167. The issues in suit between the parties are by no means theoretical. Concrete applications for actual exploration licences under the Mining Act have been filed in the Warden's Court. They have been filed on behalf of the corporate parties to these proceedings (the third and fourth defendants). Jurisdiction to determine these applications has been upheld by the relevant Warden (the second defendant). His decision is supported in this Court by Western Australia. The Commonwealth seeks a declaration that the Wardens have no jurisdiction to consider applications for mining tenements in or over any of the land within the DPA. Alternatively, the Commonwealth seeks a declaration that there is no such jurisdiction over any land held by the Commonwealth in fee simple or under its special lease. Its submissions are either right or wrong. Unless this Court determines that question, the Wardens will presumably continue to exercise the jurisdiction which is in contest. In particular, unless this Court resolves the Commonwealth's assertion that the designation of the DPA covering the three categories of land renders the Mining Act inapplicable, there will be no legal impediment to the continued exercise of jurisdiction by the Wardens. This will be so despite the fact that the Commonwealth asserts that any such exercise of jurisdiction is inconsistent with federal law [117] and thus, to the extent of the inconsistency, is invalid under the Constitution (s 109). Only if this question is decided, will the validity of Western Australia's counterclaim arise for decision.

1. Either pursuant to the Defence Force Regulations or the Lands Acquisition Act 1955 Cth or the Lands Acquisition Act 1989 Cth.

168. It is true that a Minister in the Government of Western Australia is empowered by the Mining Act to grant or refuse an exploration licence in his or her discretion [118] . However, the scheme of that Act, and its proper operation according to its terms, envisages that such discretion will be exercised after receiving a report from the Warden which recommends the grant or refusal of the exploration licence and sets out reasons for such recommendation [119] . Clearly, the Warden is not expected to waste public time or the time of the parties. The hearing by the Warden's Court is the first step on a path towards an exploration licence in a specified area and subject to specified conditions. The Commonwealth contends that the exercise of such jurisdiction is fundamentally misconceived. Its contention goes beyond its assertion that the Mining Act does not, of its own terms, or by force of the application of federal law, apply to the three categories of land in which the Commonwealth is interested. The Commonwealth says that, even beyond its particular acquisitions under federal law [120] , the designation of the area as a DPA, containing all of the land in question, is fundamentally incompatible with the purported operation in such a DPA of a State legal regime enacted to facilitate, and result in, the grant of licences to explore for minerals and, by inference, eventually to exploit those which are discovered. In my view, this Court is obliged to decide the parties' competing claims. If jurisdiction does not exist in the Warden's Court, this Court must say so.

1. Mining Act, s 59(6). 2. Mining Act, s 59(5)(c). 3. Each of the interests in land were acquired by the Commonwealth pursuant to s 7 of the Lands Acquisition Act 1955.

Inconsistency: the Mining Act and Defence Force Regulations

169. The Mining Act does not apply to the land held by the Commonwealth in freehold or leasehold. No question of inconsistency between the Mining Act and the Defence Force Regulations therefore arises regarding such land. However, different considerations apply to the unalienated Crown land. Subject to questions of inconsistency and acquisition other than on just terms, that land is open to mining under the Mining Act.

170. It was not contested that the Defence Force Regulations were made for a purpose in respect of which the Parliament of the Commonwealth has powers to make laws. The most obvious head of power in question is that conferred to make laws with respect to "[t]he naval and military defence of the Commonwealth and of the several States" [121] . Plainly, even in a time of peace, it is essential to the nation's defence that its forces train with, and test, weapons including by the use of naval gunnery and by air to surface weapons firing. For that purpose, it is necessary and expedient to have designated areas of land and sea within which such weapons may be tested without unacceptable risks to human life or limb, property or the environment. The conduct of training, manoeuvres and other military exercises within designated DPAs is an inescapable concomitant of the effective defence of the Commonwealth. So potentially important is that activity to the continued existence of the Commonwealth (and of the States) that incompatible activities purportedly authorised by State law could not be permitted if doing so "would alter, impair or detract from" [122] the fulfilment of the federal law made for the purposes of national defence. Any such State law would then be inconsistent with the federal law in question. The latter would prevail. The former, to the extent of the inconsistency, would be invalid [123] .

1. Constitution, s 51(vi). 2. Victoria v The Commonwealth (1937) 58 CLR 618 at 630, per Dixon J. 3. Constitution, s 109.

171. As the Constitution provides, the comparison which is to be made is not, primarily at least, between possible applications of the federal and State laws in the particular case, although this may disclose operational inconsistency between them. It is no answer to a complaint of constitutional inconsistency that conditions might be imposed on an exploration licence granted under the Mining Act which could have the effect of avoiding conflict with the Defence Force Regulations and their requirements. Or that mining licensees could scurry in and out of the DPA, avoiding the weapons and military exercises and confining their activities to compatible works, perhaps with a "pick and shovel" [124] . The comparison mandated by the Constitution is between the laws themselves [125] . It is now clearly established that there may be inconsistency within s 109 of the Constitution although it is possible to obey both the State law and the federal law [126] . In Clyde Engineering Co Ltd v Cowburn [127] , Knox CJ and Gavan Duffy J explained:

Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties: they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it. It is for this reason that a State law may not impair the enjoyment of a right conferred by federal law. If a State law "would vary, detract from, or impair the operation of a law of the Commonwealth" [128] it is inconsistent with that law. It is thus invalid under the Constitution. For example, in Australian Mutual Provident Society v Goulden [129] , the Court held the provision of the State law to be invalid under s 109 of the Constitution as it "would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act ". 1. The Commonwealth v Western Australia (Transcript of Proceedings; High Court of Australia; 26 May 1998), at 33. 2. Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 406. 3. Viskauskas v Niland (1983) 153 CLR 280 at 291. 4. (1926) 37 CLR 466 at 478. See also at 489-490, per Isaacs J. 5. Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136, per Dixon J. See also Victoria v The Commonwealth (1937) 58 CLR 618 at 630; Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259; Australian Broadcasting Commission v Industrial Court (SA) (1977) CLR 399 at 406; Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 642-643; Dao v Australian Postal Commission (1987) 162 CLR 317 at 335, 338-339. 6. (1986) 160 CLR 330 at 339.

172. The Mining Act, which the Commonwealth says is invalid to the extent of inconsistency with the Defence Force Regulations confers a broad range of rights which devolve upon a person granted an exploration licence, such as the corporate defendants seek here. Such a licence authorises the holder to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary to explore for minerals in, on, or under, the land [130] . It authorises the licensee to carry on such operations as are necessary to explore for minerals (including by digging pits, trenches and holes, and sinking bores and tunnels) [131] . It authorises the licensee to excavate earth to the extent specified and to take and divert water [132] . The purpose of the Mining Act is obviously to encourage and promote mining and exploration. The grant of an exploration licence is therefore designed to impose on the licensee an obligation actively to exercise the licensee's privileges. The Act attaches various conditions to the grant of an exploration licence [133] . It also creates a number of corresponding offences. These include destroying marks or obstructing any person marking out or surveying any land pursuant to the Act, interfering with the carrying out of works by persons lawfully engaged in connection with a survey that is being made under the Act and, without lawful excuse, obstructing or hindering the holder of a mining tenement in the execution of rights conferred under the tenement [134] . The holder of an exploration licence may also hold a miscellaneous lease which may be granted for prescribed purposes [135] . These may include a road, pipeline, aerodrome or any other approved purpose directly connected with the mining operation [136] . In addition, the Act confers on the holder of an exploration licence the right to secure a mining lease over the land [137] . The latter has been described as a "statutory right" [138] , although the Minister enjoys power to terminate or summarily refuse some applications on public interest grounds [139] . Where a mining lease is granted, being the desired objective of a successful outcome of an exploration licence, the holder is entitled under the Mining Act to work and mine the land. It is then empowered to do all things that are necessary to carry out mining operations in, on or under the land and to occupy and enjoy the land in respect of which the mining lease is granted [140] . A general purpose lease may be granted to an exploration licence holder over land outside and subject to the exploration licence [141] . This will entitle the lessee "to the exclusive occupation of the land in respect of which the general purpose lease was granted" [142] .

1. Mining Act, s 66(a). 2. Mining Act, s 66(b). 3. Mining Act, s 66(d). 4. See, eg, Mining Act, ss 62, 63, 68. 5. Mining Act, ss 106, 115, 157. 6. Mining Act, Pt IV, Div 5. 7. Mining Regulations (WA), reg 42b. 8. Mining Act, ss 67, 75(7). 9. Re Warden French; Ex parte Serpentine (1994) 11 WAR 315 at 326. 10. Mining Act, s 111A. 11. Mining Act, ss 71, 85. 12. Mining Act, Pt IV, Div 4. 13. Mining Act, s 87(1).

173. The scheme which is thus set in place for the grant of mining tenements under the Mining Act (including exploration licences) may be compared with the federal law upon which the Commonwealth relies to oust the Mining Act and thus to expel the jurisdiction of the Wardens. Where an area of land is declared to be a DPA [143] , the Commonwealth thereby assumes the power to control access to such land. That power is in direct conflict with any purported grants of rights of access, entry and occupation which it would be the purpose of a mining tenement (including an exploration licence) to confer on the holder under the Mining Act. In particular, the Commonwealth is empowered by the Regulations to exclude and remove persons from a DPA for the duration of defence force practices specified by notice [144] . There is no limitation on the frequency of such practices. Nor is there any restriction on when operations may occur, or the length, variety or intensity of particular operations (whether for hours, days or months). The requirement that notice be given is not an absolute one (reg 52). It must be given "as is reasonably required" having regard to risks to persons and property. But so far as the federal law is concerned, it confers upon the Commonwealth powers to regulate access to, and use of, the land without any hint of the inhibition that might arise in the use of land susceptible to mining exploration approved and regulated by State officers under State law.

1. Defence Force Regulations, reg 49. 2. Defence Force Regulations, regs 53, 54.

174. Whereas by the Mining Act, the holder of a mining tenement (including an exploration licence) has rights of entry at will and, indeed, an obligation to exercise such rights which may not be lawfully impeded or obstructed, it is an offence against the Defence Force Regulations [145] to remain upon a DPA, without permission, at any time specified in an instrument. Persons on a DPA in contravention of this provision may be removed (reg 54). Interference with equipment or with the operation of equipment installed pursuant to the Regulations is prohibited (regs 49(4) and 53(2a)). This is so irrespective of whether a practice has been authorised or not.

1. reg 53(1). See also reg 53(2) in relation to vehicles, vessels or aircraft and reg 53(3) in relation to conditions on which permission may be given.

175. The foregoing provisions demonstrate to my mind a direct conflict between the provisions of the State law and of the federal law in question. The most obvious inconsistency concerns the designation of the person having the power to decide who may, and may not, have access to, enter upon or remain on the land comprising the DPA. The large powers conferred by the Mining Act upon a tenement holder in some circumstances override even the rights of a grantee of an estate in fee simple. This is apparent from the language of that Act [146] . The Act provides for the landowner to take possession of the land on termination of a mining tenement (including an exploration licence). This provision, if it were to apply to land within a DPA, would conflict directly with, and impair, the exercise of the power of the Commonwealth to control access to such land so long as it remained subject to a declaration under the Defence Force Regulations (reg 49).

176. To the terms of the Regulations must be added the facts pleaded by the Commonwealth which Western Australia does not dispute [147] . These assert that the land held in fee simple and pursuant to the special lease, as well as "the land outside those areas but within the [DPA]" is used for the purpose of defence and the training of defence forces on a large number of days of any given year. The particulars of use, accepted by Western Australia, indicate the intensiveness of the defence operations conducted in the Lancelin DPA. The number of operations are expressed in terms of succeeding years:

1993: Army, 203 days; Navy, 125 days; Airforce, 36 days

1994: Army, 171 days; Navy, 116 days; Airforce, 36 days.

1995: Army, 190 days; Navy, 117 days; Airforce, 36 days.

1996: Army, 200 days; Navy, 84 days; Airforce, 36 days.

1997: Army, 207 days; Navy, 125 days; Airforce, seven days.

1 January to 30 April 1998: Army, 82 days; Navy, 72 days.

177. Allowing for some overlap and for joint operations, the level of use is clearly substantial. It is open to inference that, during, immediately before and after such use, movement and operations (as for mineral exploration) would be out of the question. Similarly, vehicles, heavy equipment, mine shafts and the like would be at risk of destruction unless removed although doubtless a humble pick and shovel could be left behind. Even outside the actual periods of naval gunnery and the firing of air to surface weapons, there could be hazards in the use of the land arising from unexploded ordnance. With all respect to those of a different view, the notion that mineral explorations could proceed on such land in the way envisaged by the State Mining Act, at least otherwise than by the express authority of the Commonwealth and under its control [148] , appears completely fanciful.

1. By the Lands Acquisition Act 1955, s 53(2), the federal Minister is empowered to grant easements and other rights, powers and privileges over or in connection with land vested in the Commonwealth. Pursuant to that power, authority was envisaged to permit the State to grant licences for exploration for minerals in certain circumstances but under control of the federal Minister. Western Australia declined to invoke these powers preferring to rely on its asserted entitlements.

178. Once land is brought within a DPA, the Mining Act with its procedures and permissions conferring legal rights and imposing legal obligations cannot apply so long as the designation of the DPA remains in force. It is scarcely surprising that this should be so given the high constitutional function which the Defence Force Regulations secure. The corporate defendants have applied for the exercise by the Wardens of the jurisdiction conferred by the Mining Act directed to the grant of a mining tenement comprising an exploration licence. There is no ultimate purpose in such applications other than the grant of such licences. However, if such a licence were granted, it would be inconsistent with the incidents, nature and purposes of a DPA. Accordingly, the Wardens' jurisdiction does not exist in such an area. It is not a case that the jurisdiction might be warped and altered to conform to the requirements of federal law governing the DPA. That would amount to a distortion, not an application, of the Mining Act whose object is to facilitate and encourage exploration for minerals. Upon the land in the DPA, that purpose is simply not available, at least by the authority and decisions of a State Warden and a State Minister. To permit their decisions to affect the land in question would be to alter, impair or detract from the operation of federal law. To the extent that the State law purports to do this, it is invalid within the area of the DPA. If the federal law is valid, the land within the DPA is not available for mineral exploration governed by State law.

179. This conclusion of direct inconsistency between the Mining Act and Defence Force Regulations, taken on its own, would entitle the Commonwealth to the first declaration it claims, relating to the absence of jurisdiction in the Wardens. It would also warrant a declaration in the form secondly sought to the effect that the Mining Act, insofar as it purports to apply to any land within the DPA, is invalid. In order to achieve the Commonwealth's objectives, it would be unnecessary to make the third declaration and the alternative forms of the first and second. However, these conclusions require consideration of the counterclaim by Western Australia. It asserts, relevantly, that the Defence Force Regulations, regs 49-53, effect an acquisition of property of the State otherwise than on just terms and are thus invalid under the Constitution. To this counterclaim, the Commonwealth has demurred.

The State's interests in the land within the DPA are " property "

180. It was not disputed in these proceedings that the portion of the DPA which fell beyond the land held by the Commonwealth under the grants in fee simple, or pursuant to the special lease, amounted to unalienated Crown land vested in the Crown in right of Western Australia [149] . As such, the land was subject to disposal in accordance with the Land Act 1933 WA (s 7). Specifically, inconsistent federal law aside, it was open to the State, in accordance with the Mining Act and for fees recoverable by it, to provide for exploration licences in respect of such land. Even in relation to the land within the DPA in respect of which fee simple interests or leasehold interests had been granted to the Commonwealth, Western Australia retained defined rights over the minerals beneath the land surface which were not granted to the Commonwealth but reserved and "held back" to the Crown in right of the State [150] . To the extent that the Defence Force Regulations have the consequence that the Commonwealth is entitled to prohibit or to regulate the exploration for, and mining of, metals and minerals which are situated on or in the DPA, a question of acquisition otherwise than on just terms arises.

1. See Land Act 1933 WA, s 3(1) "Crown Lands". 2. The Commonwealth v Western Australia (1999) 196 CLR 392 at 441, per Gummow J.

181. The starting point is a reminder of the purpose of the constitutional "just terms" requirement. It is to ensure, in the interests of the community at large, that a State or other owner of property compulsorily acquired by the Commonwealth for its purposes is not required to sacrifice that property for less than it is worth [151] . Unless it is shown that what is gained is full compensation for what is lost, the "terms" provided by the Commonwealth are not "just". The acquisition law is invalid because it does not meet the standards set by the Constitution. The terms of the paragraph refer expressly to the acquisition of property "from any State or person" [152] . This Court is ordinarily concerned with acquisitions of property, or suggested acquisitions, from persons. But this is a case where the acquisition is alleged to be from a State and clearly that is contemplated by the power. Three questions are raised. Is what the Commonwealth secured "property"? Has there been an "acquisition" for a purpose in respect of which the federal Parliament has power to make laws? If so, does the law, pursuant to which the acquisition of property has occurred, provide "just terms"?

1. Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 639. 2. Constitution, s 51(xxxi). Emphasis added.

182. The concept of "property" has been applied most broadly [153] . It extends beyond conventional estates and interests recognised at law and in equity whether in realty or in personality. It includes "innominate and anomalous interests" [154] . The scope of "property" in the present context is best illustrated by Minister of State for the Army v Dalziel [155] . The National Security (General) Regulations, reg 54, provided for the Minister, on behalf of the Commonwealth, to take possession of any land for defence purposes and to use it as fully as if the Minister had an unencumbered interest in fee simple in the land. The Commonwealth, however, took neither the existing leasehold nor the fee simple. As in the present instance, there was no dispute that the Regulation was otherwise valid, being for the defence of the country [156] . As here, what was disputed was whether the Regulation provided for an "acquisition" within the Constitution and, if so, whether another regulation, reg 60h, afforded "just terms". This Court, by majority, answered the first question in the affirmative [157] and the second in the negative [158] . The contention that the Commonwealth's interest was a mere statutory creation, neither recognised by the common law nor equity and thus not "property", was rejected. Starke J explained [159] :

Now is this right of the Commonwealth an acquisition of property within the meaning of the Constitution? It is said that to gain a mere temporary possession of property is not expressed by the word acquire, but by such words as gain, obtain, procure, as to obtain (not acquire) a book on loan. But the construction of the Constitution cannot be based on such refinements. However, the ownership of the land the possession of which is taken under reg 54 is not transferred to the Commonwealth nor is any estate therein, but a temporary possession. The right conferred upon the Commonwealth may be classified, I think, under the denomination of jura in re aliena, and so a right of property, the subject of acquisition. Nothing is gained by comparing the right given by reg 54 to the Commonwealth with various estates or interests in land of limited duration or with rights over the land of another recognised by the law, for it is a right created by a statutory regulation and dependent upon that regulation for its operation and its effect. And the operation and effect of the regulation gives the Commonwealth the right to possession of the land of another for a period, limited only as already mentioned, and to do in relation to the land anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest The Commonwealth cannot so exercise its legislative power of acquisition unless the terms are just. 1. The Commonwealth v New South Wales (1923) 33 CLR 1 at 20-21; Minister for the Army v Dalziel (1944) 68 CLR 261 at 285. 2. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349. 3. (1944) 68 CLR 261. 4. Dalziel (1944) 68 CLR 261 at 271. 5. Per Rich, Starke, McTiernan and Williams JJ, Latham CJ dissenting. 6. Per Rich, McTiernan and Williams JJ, Latham CJ and Starke J dissenting. 7. Dalziel (1944) 68 CLR 261 at 290.

183. The Commonwealth submitted that it had not "acquired" such interests from Western Australia. Certainly, it had not gone through a process of compulsory acquisition as permitted by the successive federal Lands Acquisition Acts [160] . Yet, although the continuing or residual interests of the State (accepted as identical for present purposes with the interests of the Crown in right of the State) differed as between those parcels of land within the DPA in which the Commonwealth had its various interests, it is impossible to dispute that with respect to all of the land within the DPA, the State had interests in the nature of "property". Especially is this so if the reasoning in Dalziel is kept in mind. It is most obviously so in the areas of DPA beyond the Commonwealth's fee simple and leasehold interests. But it is also true of the freehold and leasehold areas themselves. To establish an "acquisition" it is sufficient to show that LANCELIN NAVY TRAINING AREA MINING APPLICATIONS 70/1542 AND 70/1549 the Commonwealth has derived an "identifiable benefit or advantage" [161] . The question is whether the State was deprived of "the reality of proprietorship" [162] . The value of Western Australia's interests would vary as between the different parcels, reflecting the State's separate interests in each. But "property" it is. And, relevantly, property of the State. If the Commonwealth has "acquired" such property, the law with respect to such acquisition must provide "just terms".

1. Lands Acquisition Act 1955, Pt II, Divs 1, 3; Lands Acquisition Act 1989, ss 16(b), 41. 2. Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 185. 3. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 595, 633; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 96.

184. The word "acquisition" is not to be treated pedantically. It is not limited to the physical taking of title or possession in, relevantly, a State's "property". Nor is it to be confined by reference to traditional conveyancing principles and procedures [163] . The present is not a case where the State's property interests have been extinguished by federal law. So far as the land acquired in fee simple is concerned, the mineral interests reserved by the grant would remain for exploitation or disposal by the State were the Commonwealth to terminate its interest in the Lancelin Training Area and surrender or sell the land to the State or sell it to a private purchaser. Similarly, the State's interest in the land governed by the special lease would revive at the conclusion of the term if there were no renewal of the lease, provided the designation of the entire area as a DPA were likewise terminated. It is this designation, and the consequent operation of the Defence Force Regulations which has the effect, whilst it endures, of "modifying" or "depriving" the State of its property interests [164] .

1. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 633-635. 2. Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 185.

185. So long as that modification or deprivation endures it represents an "acquisition" for constitutional purposes. It is a fundamental mistake to confine the notion of "acquisition" to the taking of full ownership of the "property" concerned. Dalziel illustrates this point beyond argument. There the "acquisition" comprised the taking of possession of vacant land and then for a period limited to the duration of the War and six months thereafter. It is sufficient that such advantage should flow from the use of the property for at least such time as constitutes "acquisition". Similarly, it is erroneous to conclude that the only "acquisitions" to which the Constitution addresses its attention are those achieved by the processes of compulsory acquisition established by the Lands Acquisition Acts. The constitutional provision is designed to provide protection against the taking of property interests which fall short of ownership and for durations of control falling short of permanency. All that is necessary is that the Commonwealth should have acquired an "identifiable benefit or advantage".

186. It is not essential that the benefit acquired by the Commonwealth should exactly correspond with the rights which the property owner has lost in the transaction [165] . Were it otherwise, the Commonwealth could readily avoid the constitutional guarantee [166] . It could evade the obligation to pay "just terms" for the loss of mining interests because a federal interest existed to establish a national park [167] . It could avoid the payment of just terms for large scale investment in petroleum exploration in the name of legitimate foreign policy objectives [168] . Or, as here, it could decline to provide just terms to compensate a State for the loss of its proprietary interests in minerals and their exploration because of the needs of national defence. Because national defence is also (as the Constitution states) the defence "of the several States" [169] it may be that in the future, as in the past, cooperative arrangements would be made by the States for the use by the Commonwealth of unalienated Crown land of the States for defence purposes. But where there is no agreement or the State disputes that the federal law providing for acquisition of property from it provides "just terms", the Constitution's requirements are clear. The federal Parliament can enact a law for the acquisition of property for a purpose in respect of which it has the power to make laws. But it cannot do so at the expense of a State or of any person. The prerequisite of the validity of such federal law is that it provides for acquisition of the property on "just terms".

1. Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304-305; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 634. 2. Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 223. 3. Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513. 4. As was held to be the case in The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1. 5. Constitution, s 51(vi).

187. In the view which I take of the effect of the Defence Force Regulations, it is unnecessary for me to examine the operation of the Lands Acquisition Acts as they provide the federal receptacle for the acquisition of the fee simple and leasehold interests within the DPA. Because of those Regulations the entire area, and access to it, come under the power of the Commonwealth. The identifiable benefit or advantage to the Commonwealth was the ultimately unimpeded control which it thereby gained over the entire DPA, undifferentiated as to parts. The loss of property interests suffered by the State is the loss of control over, and potential revenue from the exploitation of minerals found in the DPA during the currency of the designation of the area as a DPA. There is an adequate correspondence between the loss of the State's interest and the countervailing benefit or advantage gained by the Commonwealth [170] . The one is the result of the other. At the very least, the Commonwealth, by reason of the Defence Force Regulations, acquired the benefit of relief from the burden of the State's interests [171] . For that relief, which will endure during the currency of the DPA, the federal law to be valid must provide "just terms".

1. Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 185; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 634; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 35-37. 2. cf Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 530.

The federal law provides " just terms " and is valid

188. The Commonwealth argued that, if the foregoing conclusions were reached, the Defence Force Regulations adequately provided for the payment of just terms and so were valid. The relevant Regulations are regs 57 and 57a. They appear under the heading "Compensation for loss, injury or damage". The pertinent provisions of reg 57 read:

(1) The Commonwealth shall pay reasonable compensation to a person who:

(b) sustains loss or damage by reason that an area is declared to be a defence practice area under subregulation 49(1);

(c) sustains loss or damage by reason of the use of land for the purposes of a defence operation or practice authorized under regulation 51; or

(d) sustains loss or damage otherwise caused by the operation of this Part.

189. The machinery for the provision of such compensation involves the making of a written claim (reg 57(2)(a)). If no decision is made on such claim within sixty days a decision is deemed to have been made refusing compensation (reg 57(3)). Provision is made for the review of a decision refusing compensation or in respect of an amount of compensation paid which is claimed to be inadequate. Such review is conducted by a person or a board of persons appointed by the Secretary of the Department of Defence [172] . Within sixty days this "reviewing authority" is obliged to make a decision (reg 57a(6)). A person whose interests are affected is then entitled to apply to the Administrative Appeals Tribunal for further review of that decision (reg 57a(8)). Under the Administrative Appeals Tribunal Act 1975 Cth, an "appeal" to the Federal Court of Australia on a "question of law" lies from any decision of the Tribunal (see s 45). These provisions fall short of the conferral of an express right to just terms enforceable in a court of law [173] . Nor is there an express entitlement to interest. However, the Commonwealth submitted that the Regulations sufficiently met the constitutional requirement, if that were necessary. Western Australia submitted that they did not.

1. reg 57a(4). The Secretary may delegate the functions to an officer in the Defence Force or an officer in the Australian Public Service. See reg 57b. 2. cf Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 Cth, s 24.

190. In resolving the dispute it is appropriate to deal first with a point of construction argued by Western Australia. It was submitted that reg 57 did not "evince any intention to apply to a State" and that, therefore, the Regulations contained no provisions whatever for "just terms" where property was acquired from a State. This submission must be rejected. By the Acts Interpretation Act 1901 Cth (s 22(1)(a)) expressions used in any federal Act to denote persons generally (such as "person" ) are to be read, unless the contrary intention appears, as including a reference to a body politic. Thus, in a federal Act, a reference to "person" will ordinarily be broad enough to include a reference to a State. Also by the Acts Interpretation Act, it is provided that where an Act confers upon an authority power to make (relevantly) Regulations, unless the contrary intention appears, "expressions used in any instrument so made shall have the same meanings as in the Act conferring the power". Furthermore, the Acts Interpretation Act shall "apply to any instrument so made as if it were an Act and as if each such regulation were a section of an Act" (s 46(1)(a)).

191. Accordingly, where the Defence Force Regulations provide that the Commonwealth shall pay "reasonable compensation to a person who sustains loss or damage by reason that an area is declared to be a [DPA]" (reg 57(1)(b)) etc they are, by force of the Acts Interpretation Act, to be read as including an obligation to pay reasonable compensation to a State. There is no provision in the Regulations suggesting a contrary intention. If the requirement that such compensation be paid to a State were constitutionally essential to the validity of the Regulations (as I think to be the case), that would afford an additional reason for construing the Regulations in a way which would conform to the Constitution where the contrary construction would not.

192. But does the scheme for the payment of compensation provided in the Regulations meet the necessities established by the Constitution as explained by this Court? The requirement that the federal law permitting an acquisition of property by the Commonwealth should provide "just terms" is one essential to the valid exercise of constitutional power [174] . However, because it is part of the "composition" of the legislative power in question, a measure of latitude will be accorded to the Parliament in respect of the provisions it makes on the subject [175] . The use of the precise words of the constitutional formula is not essential, although it is not unknown for the Parliament, perhaps for greater safety, to make express its purpose that an Act shall provide "just terms" and that the phrase shall "have the same meaning as in paragraph 51(xxxi) of the Constitution " [176] . Alternatively, synonyms may be used [177] . There is no statement in the Defence Force Regulations which is precisely equivalent to these formulations; but that is by no means fatal.

1. Grace Bros Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290. 2. Grace Bros Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 291, 294-295. Ultimately, it is for the courts to determine whether "just terms" have or have not been provided invalidating the subject law: Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 300; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262. 3. As was done in Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 Cth, s 24(1). See The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 86. 4. See Lands Acquisition Act 1989, s 55(1) ("The amount of compensation [as] will justly compensate the person for the acquisition").

193. Where different language is used, it is for the courts to determine whether that language provides the "just terms" essential to validity, or not [178] . The word "compensation", which is common in this area of legislative discourse, has been held apt to meet the "just terms" requirement [179] . That word is used, for example, throughout the Lands Acquisition Acts dealing with the consequences of acquisition by the Commonwealth of property interests [180] . Various attempts have been made by this Court to explain what will be required of federal law so that it meets the "just terms" precondition to validity. Several of these attempts have been expressed in language to the effect that the law must make provision which is "not unreasonable" [181] . I regard this as a rather unhelpful elaboration [182] . It is devoid of any real content. It does no more than to distract attention from the language used in the Constitution itself.

1. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 300. 2. Andrews v Howell (1941) 65 CLR 255 at 264, 270, 282; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 216. 3. Lands Acquisition Act 1989, Pt VII. 4. Minister for the Army v Dalziel (1944) 68 CLR 261 at 291; Grace Bros Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 279-280; McClintock v The Commonwealth (1947) 75 CLR 1 at 24. 5. See Lane's Commentary on The Australian Constitution, 2nd ed (1997), p 327.

194. That language requires that the federal law should include appropriate "terms" to ensure economic fairness to the State or person whose property has been acquired. It is important not to lose sight of the object of the requirement. It reflects a basic principle of fundamental civil rights [183] . It ensures that, where the Commonwealth takes over the proprietary interests of others (whether permanently or for any period that qualifies as an "acquisition") it will compensate the subject of the acquisition justly. Doing so will ensure that the true costs of the Commonwealth's activities, at least where performed pursuant to federal law, will not fall unjustly on those whose property rights are extinguished or diminished. It will also ensure that, before acquisitions take place pursuant to federal law, proper consideration is given to the costs for which the Commonwealth is thereby rendered accountable. It is useful to keep these objectives in mind in testing whether a particular legislative provision for compensation meets the stringent constitutional requirements.

1. Universal Declaration of Human Rights, Art 17. See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-661 ("Interpretative principle").

195. Now turn back to the Defence Force Regulations. They use the words "reasonable compensation". It is to be paid in a broad range of circumstances where the person (ie the "State") sustains "loss or damage". It is true that this phrase falls short of one of the formulations in the Lands Acquisition Act 1989 which talks of "loss, injury or damage suffered, or expense reasonably incurred" (s 55(2)(c)). However, the additional words add little of substance or relevance in the circumstances of the State's potential claim here. That claim would be adequately encompassed by the words "loss or damage". The breadth of the circumstances giving rise to an entitlement to "reasonable compensation" goes beyond the "loss or damage" caused by the mere declaration of an area as a DPA (reg 57(1)(b)). Were there to be any damage to the mineral deposits of, or reserved to, the State by the defence operations or practice in the DPA, it would be covered (reg 57(1)(c)). To catch any possible residue of harm, the Regulations afford a right to the payment of "reasonable compensation" for any loss or damage sustained which is "otherwise caused by the operation of this Part" (reg 57(1)(d)). The scope of the circumstances encompassed by the entitlement to compensation could therefore not be broader. I see no reason why it would not be construed, in an appropriate case, to include provision for interest if this were necessary to render the compensation "reasonable" where otherwise it would not be.

196. It is true that the Defence Force Regulations do not contain an elaboration of the notion of "compensation" such as appears in the successive federal Lands Acquisition Acts. But neither is the concept of "just terms" elaborated in the language of the Constitution. If the words "reasonable compensation" in the Regulations were construed to conform to the constitutional requirements, content being provided to the extent necessary to validity, the brevity of the formula would present no ultimate difficulty. There is no reason why the regulation should not be construed to conform to the Constitution. There is every reason why it should.

197. But can it be said that the failure to afford a right of action against the Commonwealth immediately enforceable in a court of competent jurisdiction [184] deprives the Regulations of an essential attribute required by the Constitution? The facility to bring a claim directly to a court of law has been a feature of successive Lands Acquisition Acts. More recently, an alternative procedure of application to the Administrative Appeals Tribunal has also been provided under that law [185] . The scheme of the Regulations falls short of affording the facility of direct access to a court. However, the Administrative Appeals Tribunal is an independent national statutory body enjoying wide jurisdiction and large powers. Some of its presidential members are also federal judges. At least as it is presently constituted, I see no reason why a facility of access to it, with "appeal" on, and reference of, questions of law to the Federal Court would fall short of according "just terms" as constitutionally required. There is, for example, nothing intrinsically unjust in the Parliament's providing a procedure for determining a quantum of compensation "outside the ordinary judicial process" [186] provided procedural fairness is assured [187] , no purported attempt is made to confer on a tribunal the judicial power of the Commonwealth [188] , the tribunal's decisions are susceptible to judicial review including in this Court [189] and the ultimate compensation afforded measures up to the constitutionally essential requirement of "just terms". We should avoid imposing a formalist interpretation of the Constitution which confines all disputes about such compensation to the courts. For many claimants courts are too slow, expensive and effectively unavailable for the enforcement of their rights. Tribunals may be more innovative in their procedures, speedy and inexpensive and thus more likely, in a given case, to deliver the actuality of "just terms" as the Constitution envisages. The fact that, in this case, the compensation claimed would doubtless be substantial and the claimant is a State with access to skilled legal representation does not alter the general point. In contemporary Australian society, tribunals may often be more effective in affording true justice. No constitutional impediment prevents the Parliament, in proper cases, from enlisting the services of tribunals, at least in the way done here.

1. cf Lands Acquisition Act 1955, s 28; Lands Acquisition Act 1989, s 82. 2. Lands Acquisition Act 1989, ss 71, 81. 3. The Commonwealth v TasmaniaTasmanian Dam Case the(1983) 158 CLR 1 at 291. 4. Andrews v Howell (1941) 65 CLR 255 at 284; Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 at 87, 99; Johnston Fear & Kingham & Offset Printing Co Pty Ltd v The Commonwealth (1943) 67 CLR 314 at 324, 327; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 218, 300, 350-351. 5. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 542-543; [1931] AC 275 at 295-296; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 566. 6. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 276, 323, 368.

Most, if not all, of the questions of importance which would be likely to arise in compensation proceedings would be questions of law. They would thus eventually attract the jurisdiction of the Federal Court. In these circumstances, I would not invalidate the compensation provisions of the Regulations on the ground that they laid down procedures falling short of requirements deemed essential to validity. At least in the context, and for the purposes, of the compensation claims apt to arise under the Defence Force Regulations, the procedures of administrative, and ultimately judicial, review, are within the latitude which a court will accord to the lawmaker. Accordingly, the Regulations pass the test of affording "just terms" to any State whose property is acquired by the declaration of an area as a DPA or otherwise by the operation of the Defence Force Regulations.

The result is that Western Australia's counterclaim concerning the absence of "just terms" in the applicable federal law fails. It is unnecessary to consider whether the Lands Acquisition Acts of the Commonwealth, as applicable to the State's interests acquired here fall short of the constitutional requirements. As those requirements are met by the federal law most directly applicable to use of the land as a DPA, and each of the categories of Western Australia's proprietary interests are within such land, the complaints of the State about the other federal laws are inessential. For deprivation of any of its proprietary interests, Western Australia has entitlements to compensation under the Regulations. Those entitlements conform to the constitutional requirement. The Commonwealth is therefore entitled to succeed on its demurrer to Western Australia's counterclaim.

The demurrer by Western Australia to the Commonwealth's amended statement of claim should be dismissed. The demurrer by the Commonwealth to the counterclaim of Western Australia should be allowed and the counterclaim of Western Australia should be dismissed.

The matter should be stood over to be listed before a single Justice to make orders for the hearing and disposition of the action. The precise terms of that relief will be for the Justice concerned. Sufficient relief to the Commonwealth in this Court would include declarations:

(a) That the Wardens appointed pursuant to the provisions of the Mining Act 1978 WA do not have jurisdiction to consider applications for mining tenements in or over land within the Defence Practice Area at Lancelin, Western Australia so long as the land is declared to be a Defence Practice Area within the meaning of the Defence Force Regulations; and

(b) That the Mining Act 1978 WA, in so far as it purports to apply to any land comprised within the said Defence Practice Area, is invalid.

Such declarations should be made. Costs of the demurrers, if sought, should be reserved to the Justice disposing of the action. Hayne J.

The central question in this matter is whether the State of Western Australia can grant rights under the Mining Act 1978 WA in relation to any part of the land known as the Lancelin Training Area.

The Lancelin Training Area is on the coast of Western Australia, north of the naval base at HMAS Stirling, Cockburn Sound. It has been declared a Defence Practice Area under reg 49 of the Defence Force Regulations. (Those Regulations are made pursuant to s 124(1) of the Defence Act 1903 Cth.) The Lancelin Training Area is a large area of land, air and sea used for naval gunnery and for air to surface weapons firing. It includes three parcels of land in which the Commonwealth has an interest. The Commonwealth is registered under the Transfer of Land Act 1893 WA as proprietor of an estate in fee simple of two of those parcels - known as Melbourne Location 3989 and Melbourne Location 4004. The Commonwealth is lessee of the third parcel under a Special Lease from the State of Western Australia. The balance of the Defence Practice Area is neither owned nor leased by the Commonwealth.

The Commonwealth acquired its interests in the three parcels of land I have mentioned by agreements made under s 7(4) of the Land Act 1933 WA [190] . Section 8(1) of the Lands Acquisition Act 1955 Cth vested the land in the Commonwealth "according to the tenor of the instrument or assurance" [191] .

1. Section 7(4) provided at the relevant times: "The Governor is authorized to agree with the Governor General of the Commonwealth or other appropriate authority of the Commonwealth for the sale or lease of any Crown lands to the Commonwealth and to execute any instruments or assurance for granting, conveying or leasing the land to the Commonwealth." 2. Section 8(1) provided: "Where an agreement is entered into by the Commonwealth with a State for the acquisition of Crown land, an instrument or assurance executed by the Governor of that State for the purpose of carrying out the agreement is, by force of this Act and notwithstanding anything in the law of the State, valid and effectual to vest the land in the Commonwealth according to the tenor of the instrument or assurance." The Lands Acquisition Act 1955 was repealed by the Lands Acquisition (Repeal and Consequential Provisions) Act 1989 Cth at the commencement on 9 June 1989 of the Lands Acquisition Act 1989 Cth.

The Commonwealth paid $1,480.50 and $842 for the two freehold parcels. It pays a yearly rent of $360 for the leasehold land.

Both of the Crown Grants and the Special Lease reserve property in any minerals on the land to the State. The Commonwealth does not contend that it has any property in those minerals. It does deny that the State can grant rights under the Mining Act to enter any of the three parcels of land or to explore for or recover any minerals that may be found on that land. And the Commonwealth's contention is not confined to these three parcels of land. It contends that the State has no authority to grant rights under the Mining Act in relation to any of the other land in the Defence Practice Area.

By an instrument dated 29 November 1985, the Commonwealth Minister for Local Government and Administrative Services gave authority to the State to grant exploration licences on behalf of the Commonwealth in respect of land vested in the Commonwealth, the minerals in or under which were owned by the State. This authority referred to, and relied on, s 53(2) of the Lands Acquisition Act 1955. That subsection provided:

The Minister may authorize the grant of easements, or other rights, powers or privileges (other than leases or occupation licences), over or in connexion with, land vested in the Commonwealth. The State does not intend to, and contends that it need not, rely on this authority to grant rights under the Mining Act over any of the land within the Defence Practice Area.

The third and fourth defendants have applied for exploration licences under the Mining Act. The areas that are the subject of the applications are within the Defence Practice Area. One application is for an area of which part is in the land leased under the Special Lease; the other applications are for areas that are partly within one or more of the two freehold areas and the leasehold area. Each application extends to areas within the Defence Practice Area that are outside any of these three parcels of land.

The Mining Act provides for the steps that are to be taken on an application for an exploration licence (ss 56B-70). Those steps can include a Warden of Mines conducting a hearing (s 59(4)) and giving the Minister a report recommending the grant or refusal of the application and setting out the reasons for the recommendation (s 59(5)). The Wardens of South West Mineral Field (being the mineral field within which the Defence Training Area lies) are the second defendants to the action.

By its amended statement of claim, the Commonwealth seeks a declaration that the Mining Act "does not bind the Crown in the right of the Commonwealth", that the Mining Act is invalid in so far as it purports to apply to the Defence Practice Area or the three parcels of land, and that the Mining Wardens appointed under the Mining Act do not have jurisdiction to consider applications for mining tenements in or over any land within the Defence Practice Area or the three parcels.

The State of Western Australia demurred to this amended statement of claim and counterclaimed for a declaration that, in so far as the laws that the Commonwealth contends give rise to inconsistency of laws do so, they result in the acquisition by the Commonwealth of the State's property otherwise than on just terms contrary to s 51(xxxi) of the Constitution and are invalid.

The issues presented by the demurrers can be identified as follows:

1. In its terms, does the Mining Act give power to authorise exploration and mining of the Defence Practice Area, including the three parcels of freehold and leasehold land?

2. In their terms, do the two Crown Grants to the Commonwealth and the Special Lease to the Commonwealth reserve to the State of Western Australia power to permit exploration and mining of the land dealt with by the instrument?

3. Are some, or all, of the provisions of the Mining Act applied to any part of the Defence Practice Area by either the Commonwealth Places (Application of Laws) Act 1970 Cth (the Application of Laws Act) or s 64 of the Judiciary Act 1903 Cth?

4. If either of the first two questions is answered in the affirmative (a) is the grant or reservation of that power inconsistent with a law of the Commonwealth? (b) is that law of the Commonwealth a valid law; in particular does it constitute an acquisition of property otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?

Does the Mining Act in its terms purport to permit the State to grant rights over the land in the three parcels in which the Commonwealth has an interest or over the other parts of the Defence Practice Area?

Part III of the Mining Act identifies "land open for mining". It divides land open for mining into three categories - "Crown Land" (Pt III, Div 1, ss 18-22), "Public Reserves, etc" (Pt III, Div 2, ss 23-26A) and "Private Land" (Pt III, Div 3, ss 27-39) - and makes separate provision for each.

Section 18 provides that "[a]ll Crown land, not being Crown land that is the subject of a mining tenement, is open for mining ". Section 23 provides that "[s]ubject to this Act, a mining tenement may be applied for" in respect of a public reserve or other land of a kind referred to in s 24 or s 25 but "no mining shall be carried out on or under any such land otherwise than in accordance with a relevant consent obtained in relation to that land under section 24 or section 25" (s 23(a)). Section 27(1) provides that "[s]ubject to this Act, a mining tenement may be applied for in respect of any private land and such land is open for mining in accordance with this Act".

The Defence Practice Area does not come within any of the classes of land specified in ss 24 and 25 of the Mining Act (that identify the land described in Div 2 as "Public Reserves, etc").

The State submitted that for the purposes of the Mining Act the whole of the Defence Practice Area, including the three parcels in which the Commonwealth has interests in freehold or leasehold, is open for mining in accordance with the Act. It submitted that the three parcels in which the Commonwealth has interests are "private land" and that the balance of the Defence Practice Area is "Crown land". The latter submission (that the balance of the Defence Practice Area is Crown land) was not, and could not be, disputed. The former submission raises more difficult questions.

Private land is defined in s 8(1) of the Mining Act as meaning -

any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof (not being a pastoral lease within the meaning of the Land Act 1933 or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or for timber purposes or a lease of Crown land for the use and benefit of the Aboriginal inhabitants) but -

(a) in relation to mining for minerals other than gold, silver and precious metals, for the purposes of Division 3 of Part III, does not include land alienated before 1 January 1899, except as provided in that Division;

(b) other than in so far as the primary tenement may be treated as private land in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B, does not include land that is the subject of a mining tenement; and

(c) no land that has been reserved for or dedicated to any public purpose shall be taken to be private land by reason only that any lease or concession is granted in relation thereto for any purpose.

The State submitted that the two parcels of land in which the Commonwealth has a freehold interest is land that has been alienated from the Crown for an estate of freehold, that the third parcel is land that is the subject of a lease granted by the Crown and that accordingly all three parcels of land are private land for the purposes of the Mining Act.

In considering that submission, it must be noted that the definition of Crown land in s 8(1) excludes "land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown" and "land that is subject to any lease granted by or on behalf of the Crown" other than specified types of leases [192] that are not relevant for present purposes.

1. The leases excluded are pastoral leases, leases for grazing or timber purposes, and leases for the use and benefit of the Aboriginal inhabitants.

When the definitions of "private land" and "Crown land" refer to land that has been granted in fee simple by the Crown and to land that is subject to a lease granted by the Crown, do they refer to land that has been granted by the State to the Commonwealth?

It will be seen that the definition of "private land" does not use exactly the same expressions as the definition of "Crown land". The definition of private land speaks in terms of land "alienated from the Crown for any estate of freehold" and land that "is the subject of any lease" whereas the definition of Crown land refers to land "lawfully granted in fee simple by or on behalf of the Crown" and "land that is subject to any lease granted by or on behalf of the Crown". I do not consider that anything turns on these differences. There is nothing in the different expressions to suggest that land described as having been alienated from the Crown is different from the land that is described as having been lawfully granted by the Crown. For present purposes the important question is whether the land that is so described (as alienated from, or lawfully granted by, the Crown) is intended to include land that has been granted to the Commonwealth.

The references to grants by the Crown and to alienation from the Crown are to be understood in the light of the provisions made in that regard by the Land Act. In particular, they are to be understood having regard to the special provision made by s 7(4) of that Act which provides for the Governor of the State to agree with the Governor-General of the Commonwealth or "other appropriate authority of the Commonwealth" for the sale or lease of any Crown lands to the Commonwealth. By contrast, sub-ss (1)-(3) of s 7 authorise the Governor "in the name and on behalf of Her Majesty" to dispose of the Crown lands within the State and to make valid and effectual "[a]ll grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate" that are made in accordance with that Act.

The references in the Mining Act to land "alienated from" or "granted by" the Crown are more appropriate to describe land that has been dealt with in accordance with s 7(1)-(3) than land dealt with pursuant to the separate and distinct regime prescribed by s 7(4). Central to the operation of the latter provision is agreement between Western Australia and the Commonwealth for the sale or lease of the land whereas the focus of the former provisions is upon "grants and other instruments disposing" of the land. Accordingly, when the Mining Act definitions refer to land alienated from, or granted by, the Crown they are to be taken as referring to land dealt with in accordance with s 7(1)-(3); they do not refer to land dealt with in accordance with s 7(4). To read the Mining Act otherwise would be to ignore the distinction drawn by the Land Act.

This conclusion is reinforced by the presumption that one polity in the federation (here, Western Australia) does not intend to bind another polity (here, the Commonwealth) and it will be necessary to return to this subject. But before doing so, it is necessary to consider the consequences of adopting the construction I favour (namely, that the references in the definitions of private land and Crown land to land granted by or alienated from the Crown do not include land sold or leased to the Commonwealth pursuant to s 7(4) of the Land Act). In particular, although the State did not suggest that the three parcels of land held by the Commonwealth are Crown land, the definition of private land in the Mining Act must be understood in the light of the definition of Crown land.

(a) land that has been reserved for or dedicated to any public purpose other than -

(ii) land reserved and designated for public utility for any purpose under the Land Act 1933;

(b) land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown;

(c) land that is subject to any lease granted by or on behalf of the Crown other than -

(i) a pastoral lease within the meaning of the Land Act 1933, or a lease otherwise granted for grazing purposes only;

(iii) a lease of Crown land for the use and benefit of the Aboriginal inhabitants;

(d) land reserved or constituted as a townsite under the Land Act 1933.

It can be seen that Crown land is defined negatively, as "all land in the State" except the types of land referred to in pars (a)-(d). The three parcels of land held by the Commonwealth do not come within either par (a) or par (d). (They are not reserved for or dedicated to a public purpose as that term is defined in s 8(1) [193] and are not reserved or constituted as a townsite.) And if none of the three parcels is private land they would not come within par (b) or par (c). On its face then, this might suggest, contrary to the submissions of both the State and the Commonwealth, that the land is Crown land for the purposes of the Mining Act. But that is not so. The three parcels of land are neither private land nor Crown land. The statutory definitions of these expressions must be read in the light of the presumption referred to earlier, that one polity in a federation does not intend to bind another polity. 1. "[A]ny of the purposes for which land may be reserved pursuant to section 29 of the Land Act 1933, and any purpose declared by the Governor pursuant to that Act, by notification in the Government Gazette to be a public purpose within the meaning of that Act."

227. The Mining Act contains no express statement about whether it is intended to apply to the Crown (or as it is often put "binds the Crown") in right of Western Australia or the Commonwealth. Yet it is clear from the definition of Crown land and from the scheme of the arrangements made for mining on Crown land and for mining on land of the kinds dealt with in Div 2 of Pt III that the Act is intended to operate in relation to land that is held by the State of Western Australia. And that conclusion follows notwithstanding what the majority in Bropho v Western Australia [194] referred to as "the entrenched presumption that a statute does not bind the Crown" [195] . Nor, given the terms of the Mining Act, is it necessary to consider how strong that presumption may be. As was the case with the legislation considered in Bropho, there is here no difficulty in discerning in the provisions of the Mining Act a legislative intent that the provisions of the Act apply to land of the State of Western Australia [196] .

1. (1990) 171 CLR 1. 2. Bropho (1990) 171 CLR 1 at 14, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. 3. cf Bropho v Western Australia (1990) 171 CLR 1 at 24, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

228. But the conclusion that the Mining Act is intended to apply to land that is land of the enacting State is not conclusive of whether the Act is intended to apply to land that is no longer held by the enacting State but is now held by the Commonwealth. There are other considerations that affect that question.

229. It is as well to begin the examination of this question from some fundamental propositions. First, it is well accepted that "the Constitution is predicated upon the continued separate existence of the Commonwealth and the States, not only in name, but as bodies politic to which the Constitution proceeds to distribute powers of government" [197] . It has therefore been held that Commonwealth legislative powers are impliedly restricted so as to preclude their exercise by making laws that single out a State, or the States as a group, so as to impose on them some special burden or to inhibit or impair their continued existence or their capacity to function [198] . It is, however, clear that subject to that limitation, the Commonwealth may, in the exercise of its legislative powers affect the executive capacity of a State. The States, on the other hand, do not have specific legislative powers and do not have power to affect the capacities of the Commonwealth executive [199] .

1. Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 440, per Dawson, Toohey and Gaudron JJ. See also Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83, per Dixon J. 2. Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 217, per Mason J; Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 440, per Dawson, Toohey and Gaudron JJ. 3. Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 440, per Dawson, Toohey and Gaudron JJ.

The content and application of these principles has been controversial [200] and it may well be that there is still room for doubt about them. But it is clear that whatever the content or application of these principles, it is not right to say that State laws cannot by their own force bind the Commonwealth. A submission to that effect was expressly rejected by the majority in Re Residential Tenancies Tribunal [201] and it is a proposition that cannot be supported in principle. The contrary view expressed by Fullagar J in The Commonwealth v Bogle [202]

[t]o say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception should be rejected for the reasons given by the majority in Re Residential Tenancies Tribunal. No doubt, if State legislation contains no provision dealing with its effect on the Commonwealth, deciding whether a State law is intended to bind the Commonwealth may be difficult. Further, if the State law is intended to bind the Commonwealth, there may be a difficult issue about whether it is a law that affects the capacities of the Commonwealth executive (as distinct from the particular exercise of those capacities) [203] . But the first question is whether the State law, in this case the Mining Act, is to be construed as intending its operation to affect the Commonwealth. 1. The Commonwealth v Bogle (1953) 89 CLR 229 at 259, per Fullagar J; cf The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372. 2. (1997) 190 CLR 410 at 438, per Dawson, Toohey and Gaudron JJ. 3. (1953) 89 CLR 229 at 259. 4. Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 438-439, per Dawson, Toohey and Gaudron JJ.

In Jacobsen v Rogers [204] five members of the Court said that:

It must, we think, now be regarded as settled that the application of the presumption that a statute is not intended to bind the Crown extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation [205] . As was explained in Bropho [206] , the application of the presumption that legislation does not bind the Crown may require consideration of the strength that was given to it at the time the relevant legislation was enacted, at least in cases where the question is whether the legislation affects the executive of the enacting polity. But it may be doubted that difficulties of that kind intrude upon the present question which is one concerning the intention of a legislature to affect the executive of another polity in the Federation. 1. (1995) 182 CLR 572 at 585, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. 2. See Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107 at 135-136, per Mason and Jacobs JJ. 3. (1990) 171 CLR 1 at 22-23, per Mason CJ, Deane, Dawson, Toohey, Gaudron and per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The various cases referred to in Bropho as warranting the conclusion that the strength of the presumption may vary according to when particular legislation was enacted are cases that concern the effect of legislation on the executive of the polity that enacts it. The presumption now in question owes its origin to the fact of federation and is a presumption that is not encrusted with the extensive history of particular statements of the applicable rules of statutory construction that is mentioned in Bropho. That being so, it may be doubted that the strength of the presumption should be seen as varying over time.

There would be a powerful indication of an intention that the Mining Act should extend to land held by the Commonwealth if, on its face, it sought to prescribe a regime governing mining on all land in the State.

The generality of the definition of Crown land ("all land in the State except ") coupled with the apparent matching of some exceptions from the definition of Crown land with some inclusions in the definition of private land (notably the references to land granted by or alienated from the Crown) might suggest, at first sight, that the Mining Act is intended to apply one of three possible regimes for mining to all areas of land in the State. And the fact that the State claims ownership of all minerals might reinforce that impression. But closer examination of the Act reveals that this is not so.

As has already been noticed, the Mining Act makes special provision for "land that has been reserved for or dedicated to any public purpose" [207] . Such land (with some exceptions that are not material) is excluded from the definition of Crown land. Further, par (c) of the definition of private land makes plain that land "reserved for or dedicated to any public purpose" is not to be taken to be private land only because some lease or concession is granted in relation to it for any purpose.

Division 2 of Pt III (ss 23-26A) deals with some, but not all, of the land that is described as reserved for or dedicated to any public purpose. Sections 24 and 25 identify the kinds of land to which the division applies. The public purposes referred to in the definitions of private land and Crown land are limited to public purposes of the State [208] , but not all such land is dealt with by this division. In general, s 24 deals with national parks, nature reserves and the like and s 25 with the foreshore, sea bed and navigable waters and with land reserved as a townsite. The details of the application of these two sections is not important. What is significant is that consideration of these provisions reveals that the Mining Act does not prescribe a regime for mining in respect of all land in Western Australia.

Further, the exclusion of land reserved for any State public purpose from the definition of Crown land, coupled with the very limited provisions made in Div 2 of Pt III for mining of some, but not all, land reserved for such purposes, suggests strongly that the Mining Act is not intended to apply to land held by the Commonwealth.

This conclusion does not depend upon the application of principles of the kind considered in Melbourne Corporation v The Commonwealth [209] . If, as was submitted by Western Australia, the Mining Act did apply to land of the Commonwealth because Commonwealth land is, for the purposes of the Act, "private land", the Act would treat that land in the same way as it treats privately held land. Treatment in that way would not amount to some discrimination against the Commonwealth and would not amount to subjecting the Commonwealth to some special burden or disability [210] . No doubt, a conclusion that the Act was discriminatory or imposed some special burden or disability on the Commonwealth would be a powerful, perhaps decisive, reason for deciding that the Act is not to be construed in a way that leads to that result but, as I say, I do not reach my conclusion by this path. For present purposes it is important to note that, while there may be no relevant discrimination or imposition of burden or disability, the construction of the Act for which the State contends is one that does lead to the differential treatment of land held for State and for Commonwealth public purposes and the treatment of Commonwealth land as if it were private land. These are conclusions that one should be slow to reach given the presumption that one polity does not intend, by its legislation, to affect the other polities in the federation.

1. (1947) 74 CLR 31. 2. cf Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 61, per Latham CJ; at 74, per Starke J; at 99, per Williams J; Re Residential Tenancies Tribunal (1997) 190 CLR 410 at 507, per Kirby J.

239. There is one further (albeit less powerful) indication in the statute that should be noted and suggests that the Mining Act is not intended to apply to Commonwealth land. Section 21 of the Mining Act provides that land that is not the subject of a mining tenement or land on which mining operations are lawfully being carried on under an agreement in writing with the owner of the land may be "resumed on behalf of the Crown pursuant to the Land Acquisition and Public Works Act 1902 as though the taking or resumption were required for a public purpose". Section 22 then provides that "[w]here any private land is taken or resumed" under s 21 "that land shall for the purposes of this Act be taken to be Crown land". These provisions are more consistent with the private land provisions of the Mining Act applying only to land granted to private holders than it is with their application to land held by the Commonwealth.

240. Taking account of these various matters I consider that the Mining Act does not reveal an intention that it should apply to land granted to or leased by the Commonwealth under s 7(4) of the Land Act. And that is so notwithstanding that limiting the definition of private land to land that has been alienated to private persons requires that the equivalent exclusion from the definition of Crown land should be limited in like fashion. Read as a whole the definition of Crown land must be read as referring to that part of the waste lands in Western Australia [211] still under the control of the State. That is, the definition of Crown land should be read as referring to all land held by the State that does not fall within any of the exceptions mentioned. It is only if the definition of Crown land is read in that way that effect is given to the presumption that the legislature of one polity does not intend to bind the other polities in the federation.

1. The management of which was vested in the Western Australian legislature by the Western Australia Constitution Act 1890 Imp.

241. It is convenient to deal at this point with two particular arguments - that the Application of Laws Act applies the Mining Act to the three parcels of land held by the Commonwealth in freehold or leasehold; and that s 64 of the Judiciary Act requires that in the present proceeding the Court apply the provisions of the Mining Act to regulate the rights between the parties.

Section 4(1) of the Application of Laws Act provides that:

The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.

If (as I consider is the case) the Mining Act does not provide a regime for mining or exploration of the parcels of land owned or leased by the Commonwealth the Application of Laws Act can lead to no different result. Applying the Mining Act, in accordance with its tenor, provides no regime regulating mining on the land.

As for the balance of the Defence Practice Area, it is not a place "acquired by the Commonwealth for public purposes" within s 52(i) of the Constitution and is not a Commonwealth place under the Application of Laws Act. The Application of Laws Act may therefore be put to one side.

The present proceeding being one to which the Commonwealth or a State is a party, s 64 of the Judiciary Act provides that "the rights of parties shall as nearly as possible be the same as in a suit between subject and subject". The State submitted that because the Mining Act applies the regime set out in Div 3 of Pt III to exploration and mining on private land, s 64 of the Judiciary Act applies that regime to Commonwealth land.

The precise operation of s 64 may not yet have been fully elucidated. But it must now be accepted that the rights referred to in the section are more than procedural and include the substantive rights to which effect is to be given in the suit [212] . For present purposes, what is important is that the section requires that the rights of parties be as nearly as possible the same as in a suit between subject and subject.

1. South Australia v The Commonwealth (1962) 108 CLR 130 at 140, per Dixon CJ; Maguire v Simpson (1977) 139 CLR 362; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 262, per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.

No doubt issues of the meaning and validity of the legislation that has been relied on in the present proceeding could arise in litigation between subject and subject but if those issues did arise in such a suit, it could not be suggested that the legislation should be construed or given effect otherwise than in accordance with the terms of the legislation and ordinary principle. But the State's reliance on s 64 seeks to go further than having the legislation construed in accordance with its terms and having its validity assessed according to ordinary principles. It seeks to say that s 64 requires that those provisions of the Mining Act that apply to exploration and mining of private land should be applied to the three parcels of land held by the Commonwealth. That is not to make the rights of the parties to the present proceeding as nearly as possible the same as they would be in a suit between subject and subject. The State seeks to make the rights of the parties to the present proceeding as nearly as possible the same as they would be in a suit between the State and a subject. This is to create rights and obligations that are not provided for by the legislation and that would not be recognised or enforced in any proceeding between subject and subject. Section 64 does not lead to the conclusion for which the State contended.

The provisions of the Crown Grants and the Special Lease

The two Crown Grants and the Special Lease contain provisions dealing with minerals and mining. Do those provisions permit the State to grant rights under the Mining Act?

There are four reservations in the Crown Grants: first, a reservation in favour of the Crown "or for any person or persons acting in that behalf by Our or their authority" to resume and enter upon possession of any part of the land (not exceeding one-twentieth of the whole of the land) for purposes (among other things) of exercising "the power to search for minerals hereinafter reserved" and to do so without compensation; secondly, a reservation in favour of the Crown "or for any person or persons acting in that behalf by Our or their authority" to search and dig for stones or other materials for works; thirdly, a reservation in favour of the Crown of all mines and minerals "with full liberty at all times to search and dig for and carry away the same; and for that purpose to enter upon the said land or any part thereof"; and fourthly, a reservation in favour of the Crown of all petroleum on or under the surface of the land "with the right reserved to Us and persons authorised by Us to have access to the said land for the purpose of searching for and for the operations of obtaining petroleum in any part of the said land subject to and in accordance with the Petroleum Act 1967 "

The Special Lease contains reservations to the same effect as the first three reservations found in the Crown Grants; it does not contain a reservation equivalent to the fourth reservation about petroleum that is found in the two Crown Grants.

The first of these reservations confers a power to resume part of the land granted or leased (up to one-twentieth of it). And it speaks of persons "acting in that behalf by Our or Their authority" doing so "for the purpose of exercising the power to search for minerals and gems hereinafter reserved". The proposed grant of rights under the Mining Act is not a proposal to resume the land. The first reservation therefore does not apply to the circumstances now under consideration.

In considering the construction of the other reservations, it is important to note some differences between their terms. The first two reservations speak of persons "acting in that behalf by Our or their authority"; the third reservation concerning mines and minerals does not. The fourth reservation (found in the Crown Grants but not in the Special Lease) refers expressly to the Act that governs exploration for, and recovery of, petroleum (the Petroleum Act 1967 WA); the third reservation does not refer to the Mining Act.

The State contended that the reservations in the instruments should be construed amply and in favour of the grantor because the grantor was the Crown but I doubt that the construction of these instruments should be approached with any such predisposition when they are instruments made between two polities in the Federation. The principle of construction relied on by the State finds its place in the construction of grants by the Crown to a subject [213] . Other considerations intrude when the instruments are made between two polities. In any event, however, the language of the reservations does not admit of the construction urged by the State. The reservations do not reserve to the State the power to grant rights under the Mining Act.

1. Hume Steel Ltd v Attorney-General (Vic) (1927) 39 CLR 455 at 463, per Isaacs J; at 465, per Higgins J; Earl of Lonsdale v Attorney-General [1982] 1 WLR 887 at 901; [1982] 3 All ER 579 at 590-591, per Slade J.

The reservation of mines and minerals in favour of the Crown does not refer to "persons acting in that behalf by Our or their authority". It does not refer directly or indirectly to the Mining Act. In those circumstances it cannot be said that that reservation was intended to reserve to the State of Western Australia the power to grant rights under the Mining Act. Nothing else in the Crown Grants suggests the reservation of such a power.

One of the conditions of the Special Lease obliges the Commonwealth to permit occupation by authorised bee-keepers, fishermen, prospectors and miners, consistent with the safe and effective use of the area for its leased purpose of "Naval Gunfire Support Range Danger Area and Army Training Area". But even taking that condition into account in construing that instrument, the reservations that are contained in the Special Lease (and, in particular, the reservation of mines and minerals) cannot be read as reserving to the State the right to grant interests under the Mining Act.

For these reasons the Mining Act does not prescribe a regime for exploration or mining of the three parcels of land held by the Commonwealth in freehold or leasehold. But, of course, other considerations arise in relation to the balance of the Defence Practice Area. That is unalienated Crown land of the State of Western Australia. Subject to questions of inconsistency and acquisition other than on just terms, this land is open for mining in accordance with those provisions of the Mining Act that regulate mining and exploration on Crown land.

No question of inconsistency between the Mining Act and Pt X of the Lands Acquisition Act 1989 arises. Neither the Mining Act nor the terms of the reservations on the Crown Grants and Special Lease authorise the granting of rights to explore for or mine on the three parcels of land in which the Commonwealth has an interest. Although the Mining Act does authorise the granting of rights to explore for or mine on the balance of the Defence Practice Area, the land has not been acquired by the Commonwealth under its lands acquisition legislation.

For the reasons given by Gummow J, there may be a question of inconsistency that arises from the particular operation of Pt XI of the Defence Regulations (dealing with Defence Practice Areas) and the Mining Act and a question of acquisition otherwise than on just terms. But those questions would arise (and could be resolved) only in the light of the particular circumstances of a concrete case. Thus, to take only one obvious example, very different considerations may arise if unconditional permission were given to conduct mining operations on the State's Crown land in the Defence Practice Area and notice was then given of a year long defence operation affecting that area, from the considerations that would arise if the permission to conduct mining operations was conditional, or if a particular defence operation would take only a few hours or days.

For the reasons given by Gummow J, I agree that the declaration sought by the State in its counterclaim should not be made.

In these reasons I refer to the land contained in the deeds of grant and the leased land as the alienated land, and the land outside the alienated land but covered by the Declaration made under the Defence Force Regulations (Cth) as the unalienated land.

Subject to the qualifications and additional matters which I will state I agree with the following conclusions and reasons for judgment of Hayne J: that as a matter of construction the Mining Act 1978 WA has no application to the lands contained in the alienated land; that the Commonwealth Places (Application of Laws) Act 1970 Cth does not apply the Mining Act to the alienated land; and, that s 64 of the Judiciary Act 1903 Cth does not have the effect of enabling Western Australia and the Wardens of the South West mineral field to grant rights and interests in the alienated land in accordance with the Mining Act.

However I also agree with the reasons and conclusion of Kirby J, again, subject to such qualifications as I state, that there is a direct conflict between State law, that is State law entitling the State to explore for minerals and mine them on any of the lands, and the Declaration made under the Defence Force Regulations, if they are effective according to their tenor.

Leaving aside for present purposes the effect of the Declaration, in my opinion, the reservations in the grants and the lease would entitle the State of Western Australia to search for, win and transport minerals from the alienated land (but not pursuant to the Mining Act). Their language is explicit and ample for those purposes. The reservations were obviously made for good reason. Their language should be given practical utility. Indeed, even in the absence of their explicit language, those rights would probably still be exercisable by the State. As Lord Porter said in Borys v Canadian Pacific Railway Co [214] , delivering the advice of the Committee:

the absence of a clause giving a right to work does not abrogate or limit the powers of the respondents. Inherently the reservation of a substance, which is of no advantage unless a right to work it is added, makes the reservation useless unless that right follows the grant. The true view is that such a reservation necessarily implies the existence of power to recover it and of the right of working. 1. [1953] AC 217 at 227-228.

Counsel for the Commonwealth, in argument went so far as to assert that the reservations would permit mining of a minimal kind only, mining he argued, by pick and shovel only perhaps. At the time that the grants and lease were made large scale mining operations, utilising open cuts, were commonplace in Australia. That the possibility of operations of some magnitude was within the contemplation of the parties can be inferred from the reservation in the grants of the right to resume up to one twelfth of the land contained in them to explore for minerals. The argument of the Commonwealth must be rejected.

To hold otherwise would be to confer upon the Commonwealth proprietary and other rights which it chose not to acquire and for which it did not pay. For reasons which I will state I am of the opinion that a right to sterilise, restrict or adversely affect the rights of exploration and mining in or with respect to land, is a right for which the Commonwealth, acquiring or deriving the benefit of that right should pay compensation on just terms.

The Defence Force Regulations and the declaration made under them

The Regulations made under the Defence Act 1903 Cth relevantly provide as follows:

(1) The Minister may, by notice published in the Gazette, declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice.

(2) The Minister shall not make a declaration under subregulation (1) in respect of private land unless:

(a) the consent in writing of the occupier of the land has first been obtained; or

(b) it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out on that land a defence operation or practice of a kind specified in the notice without that consent.

(3) The Minister shall not, in a notice under subregulation (1), declare an area of sea or air to be a defence practice area unless it is an area of sea or air in which it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out a defence operation or practice of the kind specified in the notice.

(4) Where the Minister declares a defence practice area under subregulation (1), a chief of staff may from time to time, by notice published in the Gazette, authorise the installation, for a period not exceeding 2 years that is specified in the notice, of equipment for defence purposes:

(a) in an area of sea that is, or is part of, the defence practice area; or

(b) on the sea-bed or in the subsoil beneath that area; or

(1) Where private land is the subject of a declaration made under subregulation 49(1), the Minister shall cause a copy of the declaration to be laid before each House of the Parliament within 15 sitting days of that House after the date on which the declaration was made.

(1a) If a copy of a declaration is not laid before each House of the Parliament in accordance with the provisions of subregulation (1), the declaration shall be void and of no effect.

(2) If either House of the Parliament, within 15 sitting days of that House after a copy of a declaration referred to in subregulation (1) has been laid before that House, passes a resolution disapproving of the declaration, then:

(a) if the declaration has not come into operation - it shall not come into operation; or

(b) if the declaration has come into operation - the declaration shall cease to have effect on the day on which the resolution is passed.

Authorisation to carry out a defence operation or practice

(1) A chief of staff may, in writing, authorize the carrying out in a defence practice area, at a time specified in the instrument, of a defence operation or practice in which:

(b) members of the armed forces of a country other than Australia; or

(c) members of the Defence Force and the armed forces of a country other than Australia;

(1) Where, under subregulation 51(1), a person authorizes the carrying out of a defence operation or practice, that person shall cause such notice of the operation or practice to be given as is reasonably required for the protection of persons or property that may be affected by that operation or practice having regard to:

(a) the time and place of the carrying out of the operation or practice;

(b) the nature of the equipment and ammunition proposed to be used in the course of that operation or practice and the risk to those persons or that property or the injury or damage that is likely to arise from that use; and

(c) the forms of communication available to that person for the giving of that notice to the public.

(2) Where a person authorises the installation of equipment under subregulation 49(4), the person must cause such notice:

(a) of the installation as is reasonably required to advise persons in reasonable proximity, within the defence practice area concerned, of the place where the equipment is installed; and

(b) of activities of those persons that would be likely to disturb the equipment or interfere with its operation; to be given to those persons, having regard to:

(d) the risk of damage to the equipment or interference with its operation; and

(e) the forms of communication available to that person for the giving of that notice to those persons.

(1) A person shall not, without reasonable excuse, be in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice, except with the permission of:

(a) the chief of staff or other officer who authorized the operation or practice; or

(b) an officer participating in the operation or practice.

(2) A person shall not, without reasonable excuse, permit any vehicle, vessel or aircraft to be in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out of a defence operation or practice, except with the permission of:

(a) the chief of staff or other officer who authorized the operation or practice; or

(b) an officer participating in the operation or practice.

(2a) Where the installation of equipment is authorized under subregulation 49(4), a person must not knowingly disturb the equipment or interfere with its operation, except with the permission of:

(b) an officer participating in a defence operation or practice in relation to which the equipment was installed.

(3) Permission under subregulation (1), (2) or (2a):

(a) may be given if it is reasonably required for the protection of persons and property in the defence practice area or for the safety or defence of the Commonwealth;

(c) is effective for such period as is specified in the instrument; and

(d) is subject to such conditions (if any) specified in the instrument as are reasonably required for the protection of persons and property in the defence practice area or for the safety or defence of the Commonwealth.

(4) Without limiting the generality of subregulation (3), the chief of staff or other officer giving permission under subregulation (1), (2) or (2a) may impose conditions in relation to the conduct of persons in a defence practice area or in relation to a vehicle, vessel or aircraft in that area.

(5) A person shall not, without reasonable excuse, fail to comply with a condition specified in an instrument of permission given to the person under this regulation.

(6) Where a vehicle, vessel or aircraft is in a defence practice area in contravention of subregulation (2), (2a) or (5) each of:

(a) in the case of a vehicle - the driver, owner and the hirer (if any) of the vehicle;

(b) in the case of a vessel - the master, owner and the charterer (if any) of the vessel, and the agent (if any) for the vessel; or

(c) in the case of an aircraft - the pilot, owner and the charterer (if any) of the aircraft, and the agent (if any) for the aircraft;

is guilty of an offence against subregulation (2), (2a) or (5), as the case may be, but an offender is not liable to be punished more than once in respect of the same offence.

(a) who, in contravention of regulation 53, is, or permits a vehicle, vessel or aircraft to be, in a defence practice area at a time specified in an instrument under subregulation 51(1); or

(b) who fails to comply with a condition specified in an instrument of permission given to that person under regulation 53;

may, without affecting any other proceedings that may be taken against the person, be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.

(2) Any vehicle, vessel or aircraft in a defence practice area in contravention of regulation 53 may be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.

5 Where a member of the Defence Force gives a direction to a person under regulation 54, the member shall, if requested by that person, produce evidence that he or she is a member of the Defence Force for inspection by that person and, if the member fails to do so, that person is not obliged to comply with that direction.

6 A person shall not, without reasonable excuse, obstruct or hinder a member of the Defence Force, a member or special member of the Australian Federal Police or a constable in the exercise by that member, special member or constable of a power conferred by this Part or obstruct or hinder a person acting under a direction referred to in regulation 54.

(1) The Commonwealth shall pay reasonable compensation to a person who:

(a) sustains loss or damage by reason of entry upon, and survey of, land in accordance with regulation 58;

(b) sustains loss or damage by reason that an area is declared to be a defence practice area under subregulation 49(1);

(c) sustains loss or damage by reason of the use of land for the purposes of a defence operation or practice authorized under regulation 51; or

(d) sustains loss or damage otherwise caused by the operation of this Part.

(2) A claim for compensation under this regulation shall:

(a) be in writing, signed by the person making the claim; and

(3) Where no decision is made in respect of a claim for compensation within the period of 60 days after the date on which the claim was made, a decision refusing compensation shall be deemed to have been made.

There are several matters to notice about the Regulations. A Declaration made under them may be made unilaterally. A Declaration may be made as a matter of expediency. Equipment, in the discretion of a chief of staff may be installed for up to two years (and presumably for successive periods of two years after notice published in the Gazette ) anywhere within a declared area. A Declaration has, in a relevant respect, the character of subordinate legislation in that it must be laid before Parliament and be subject to disallowance there. It is entirely within the discretion of a Chief of Staff when, and where a defence operation or practice may be carried out. It is impermissible for a person or a person's vehicle, vessel or aircraft to be in an area subject to a Declaration, at the place of, and during the period of a notified defence practice without reasonable excuse. Conditions with respect to the presence of a person in a defence practice area may be imposed by the Chief of Staff or another officer. A breach of a notification or condition constitutes an offence.

Regulation 57 is concerned with the payment of "reasonable compensation". The Commonwealth has sixty days within which to decide upon a claim. There is no provision for the determination of a claim by a court, or any procedure for its enforcement, or the payment of interest. The Regulations in this regard may be contrasted with the elaborate provisions in respect of these matters contained in the Lands Acquisition Act 1989 Cth Pts VII and VIII.

Loss or damage, the term used in reg 57, may not be a term entirely apt to describe a diminution in value of real property or its utility for mining purposes (permanent or temporary) by reason of what, if they were not otherwise authorised, would be regarded as major trespasses and nuisance able to be committed at will by a stranger.

A right to mine is a valuable right. But that is not the only valuable right that a State has with respect to land in which there may be minerals. The mere possibility of their existence will often, indeed usually, give rise to a valuable right, or interest, the right to explore for them, an assignable right and one for which a State may expect to receive rent or other consideration, and other benefits, both tangible and intangible, such as, perhaps, infrastructure on, and in the vicinity of the land, and economic and other advantages in a region that it may wish to promote. Interference with a right of that kind plainly reduces the value of such a right either temporarily or permanently. Here the measure of control for which the Commonwealth contends and which the Declaration commands would involve a very substantial restriction upon a right to explore for, win and transport minerals. Whilst the test, whether what the Commonwealth has done (here the making of the Declaration) amounts to an "acquisition" in constitutional terms will depend on what might be able to be done under the statute or instrument authorising or effecting the "acquisition", rather than what the Commonwealth may at any one time in its discretion actually choose to do, in this case, the uncontradicted pleaded facts give a good insight into just how intrusive and incompatible with mining the Commonwealth's activities under the Declaration may be. In this regard I refer to, without repeating, the details of the extensive periods and frequency of usage by the defence forces, which are set out in the reasons for judgment of Kirby J.

In Minister for the Army v Dalziel [215] . Starke J said:

Property, it has been said, is nomen generalissimum and extends to every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and choses in action. And to acquire any such right is rightly described as an "acquisition of property". On the other hand a mere personal licence such as is not assignable would not be rightly described as property [216] . There is no doubt, I think, that taking possession of land pursuant to reg 54 confers a definite legal right upon the Commonwealth in the nature of property [217] , but I should not think that the right acquired pursuant to reg 54 is assignable.

Now is this right of the Commonwealth an acquisition of property within the meaning of the Constitution? It is said in the Imperial Dictionary that to gain a mere temporary possession of property is not expressed by the word acquire, but by such words as gain, obtain, procure, as to obtain (not acquire) a book on loan. But the construction of the Constitution cannot be based on such refinements. However, the ownership of the land the possession of which is taken under reg 54 is not transferred to the Commonwealth nor is any estate therein, but a temporary possession. The right conferred upon the Commonwealth may be classified, I think, under the denomination of jura in re aliena, and so a right of property, the subject of acquisition.

1. (1944) 68 CLR 261 at 290. 2. cf Leake, Uses and Profits of Land (1888), pp 196-199. 3. cf Pollock and Wright, Possession in the Common Law (1888), pp 22-23.

The word "property" in s 51(xxxi) is a general term. It means any tangible or intangible thing which the law protects under the name of property. The acquisition of the possession of land is an instance of the acquisition of property. 1. Dalziel (1944) 68 CLR 261 at 295.

275. The intervention of governments acting by the unilateral stroke of the executive pen, may produce quite different consequences from the transactions of ordinary citizens. "[I]nnominate and anomalous interests" may be created [219] . Take this case. It is not easy to find any perfect analogy between a proprietary right or interest that might be created in private law and what the Declaration, if valid, does for, and provides to the Commonwealth.

1. Bank of NSW v The CommonwealthBank Nationalisation Case the(1948) 76 CLR 1 at 349, per Dixon J.

276. In the Tasmanian Dam Case [220] four Justices, Mason, Murphy, Brennan and Deane JJ held that the prohibitions imposed by the World Heritage (Western Tasmania Wilderness) Regulations (Cth) and the World Heritage Properties Conservation Act 1983 Cth, s 11 constituted an acquisition of property within the meaning of s 51(xxxi) of the Constitution, the property in question being the benefit of the prohibition of the exercise of the right to use and develop the land. But they also held that other restrictions upon activities said to be of a less restrictive kind imposed by some other sections of the Commonwealth legislation precluded the proclamations in respect of those provisions from constituting an acquisition of property.

1. The Commonwealth v TasmaniaTasmanian Dam Case the(1983) 158 CLR 1.

The same judges also held that such acquisitions of property as had purportedly occurred were invalid because the relevant section of the legislation (s 17 of the World Heritage Properties Conservation Act) did not confer an immediate right to be paid compensation and was therefore intrinsically unfair.

Mason J in his reasons drew a distinction between the approach to the Fifth Amendment to the United States Constitution, " nor shall private property be taken for public use, without just compensation" and s 51(xxxi) of the Australian Constitution. His Honour said of the latter [221] :

To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be. 1. Tasmanian Dam Case (1983) 158 CLR 1 at 145. In Pennsylvania Coal Co v Mahon (1922) 260 US 393, the Supreme Court of the United States ruled that making it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it: at 414, per Holmes J delivering the opinion of the Court. But the Court said such matters were discretionary; they were matters of degree.

Mason J (whose reasoning was similar to that of Murphy J [222] and Brennan J [223] ) then cited the following passage of Dixon J from the Bank Nationalisation Case [224] :

I take Minister of State for the Army v Dalziel [225] to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognised at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. Section 51(xxxi) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect. 1. Tasmanian Dam Case (1983) 158 CLR 1 at 181-182. 2. Tasmanian Dam Case (1983) 158 CLR 1 at 246-248. 3. Bank Nationalisation Case (1948) 76 CLR 1 at 349. 4. (1944) 68 CLR 261.

For myself I would not regard that passage as authority for the proposition that, for there to be an acquisition within the meaning of s 51(xxxi), the Commonwealth must necessarily in all cases and for all purposes have acquired an interest in property, however slight or insubstantial it may be. The real point about the exercise of power in respect of property by governments (other than town planning and other special or like powers which may require separate consideration) is that they can effectively achieve the benefit of many aspects of proprietorship without actually becoming proprietors, either of a property as a whole or some component of it.

As I have already suggested analogies with dealings between voluntary parties at arms length in a free market place are in many respects illusory in the context of the exercise of government power falling short of the assumption of ownership by government. To be able to prevent or restrict the usage of property in a certain way is just as much an incident of ownership as is an ability to use it without restriction. It is no answer to say that an owner who remains the owner of the property in name, and can use it perhaps for one or two limited purposes, but not for other proper and permissible, valuable purposes, still has and enjoys proprietary rights.

But in any event, in this case (as in the Tasmanian Dam Case), there has, in a real sense, been an acquisition of something in the nature of a valuable item of property. The Declaration may be compared to a restrictive convenant: if one person (for his or her own reasons) wishes to sterilise or restrict the usages of another person's land, the latter, in a free market place, would demand recompense, and the former would expect to have to pay it. The parties' rights and obligations would be defined by a restrictive covenant, or perhaps in some cases an easement. The benefit of each of these is valuable, and of a proprietary kind and may, in some circumstances, be assignable [226] . The covenantor or grantor (and successors) wishing to be relieved of the burden, are potential purchasers. And, subject to the terms of the covenant and legislation governing assignments, persons other than the covenantor and successors, may also be potential purchasers and assignees [227] .

1. Assignability may not be a definitive test of property. See Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 at 245, per Isaacs J. 2. See Bradbrook and Neave, Easements and Restrictive Covenants in Australia (1981), par 1315 and following; Butt, Land Law, 3rd ed (1996), pars 1713-1726. See also Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154.

In the Tasmanian Dam Case [228] , Deane J said that "laws which merely prohibit or control a particular use of, or particular acts upon, property plainly do not constitute an "acquisition" ". With respect I doubt whether such a statement can categorically be made. However, in deciding that the legislation in the Tasmanian Dam Case went beyond, as his Honour had defined it, mere extinguishment or deprivation, he used language which might, with some adaptations be employed to describe the ambit of the Declaration made under the Regulations in this case [229] :

In the present case, the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the HEC land. The range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the condition which the Commonwealth, for its own purposes, desires to have conserved. In these circumstances, the obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported acquisition of property for a purpose in respect of which the Parliament has power to make laws. The "property" purportedly acquired consists of the benefit of the prohibition of the exercise of the rights of use and development of the land which would be involved in the doing of any of the specified acts. The purpose for which that property has been purportedly acquired is the "application of the property in or towards carrying out" Australia's obligations under the Convention [230] . The compensation which would represent "just terms" for that acquisition of property would be the difference between the value of the HEC land without and with the restrictions. 1. (1983) 158 CLR 1 at 283. 2. Tasmanian Dam Case (1983) 158 CLR 1 at 287. See also Gummow J in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 595, 602, 634-635. 3. See Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 372, per Dixon CJ.

The caution expressed by Hamilton [231] in my opinion has much to commend it:

A necessary first step in formulating a test for s 51(xxxi) is for Australian courts firmly to grasp the principle that the various separate rights of user of property are in themselves property. The Court in Dalziel's Case [232] recognised that by taking away some rights of user, in particular the right to possession, the Commonwealth could make property practically worthless. What needs to be recognised is that property is a bundle of rights, and each right in that bundle is itself property the subject of acquisition. Whenever the Commonwealth seeks to control the exercise of one of the rights in the bundle a question of acquisition is on the threshold. 1. Hamilton, Some Aspects of the Acquisition Power of the Commonwealth, Federal Law Review, vol 5 (1973) 265, at p 291 . 2. (1944) 68 CLR 261.

It follows, in my opinion, that the Declaration made under the Regulations in this case involves a purported acquisition of property within the meaning of s 51(xxxi).

In Grace Bros Pty Ltd v The Commonwealth [233] , Dixon J referred to the need for legislation authorising an acquisition by the Commonwealth to provide fair and just standards of compensation:

The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country. I say "the individual" because what is just as between the Commonwealth and a State, two Governments, may depend on special considerations not applicable to an individual. 1. (1946) 72 CLR 269 at 290.

The Regulations that I have quoted do not in my opinion make provision for such fair and just standards of compensation. There is no stated entitlement to interest [234] . They do not confer an immediate right to payment. Payment depends, in the first instance at least, upon the outcome of an administrative process. The fact that the process may be reviewable (and then only upon a very limited basis) by a Court of the Commonwealth [235] appointed pursuant to Ch III of the Constitution can hardly be regarded as provision for fair and just standards of compensation for acquisition on just terms [236] .

1. Bank Nationalisation Case (1948) 76 CLR 1 at 301, per Starke J; cf the Tasmanian Dam Case (1983) 158 CLR 1 at 291, per Deane J. 2. The Regulations provide a right to apply to the Administrative Appeals Tribunal for a review of decisions regarding compensation: r 57a(10). Appeal from decisions of the AAT to the Federal Court is available, but is limited to questions of law: Administrative Appeals Tribunal Act 1975 Cth, s 44. 3. The defence power does not of course confer any greater right to acquire upon the Commonwealth on other than just terms than any other power: see Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 594, per Gummow J.

288. After all, until relatively recently substantial claims for compensation following acquisition by the Commonwealth, were routinely pursued in this Court [237] .

1. See, eg, Albany v The Commonwealth (1976) 12 ALR 201. Section 62 of the Lands Acquisition Act 1955 Cth conferred jurisdiction upon the High Court and the courts of the States and Territories to deal with matters arising under the Act. Section 19 provided that land owners could, in the absence of agreement, take action against the Commonwealth in a court of competent jurisdiction, which included the High Court. Provision was made for removal of actions into the High Court where the amount claimed exceeded the jurisdiction of the lower courts (s 28(9)) and where proceedings had been instituted in the High Court and another court (s 28(10)). The Lands Acquisition Act was amended by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 Cth. The amendments removed the relevant references to the High Court. Section 44 of the Judiciary Act, enacted in 1976, gave the High Court power to remit "any matter" to the Federal Court or to a Supreme Court. This replaced s 45. The change ensured the Court, of its own motion, could remit a matter. The original jurisdiction of the High Court in compensation matters, in consequence, has effectively ceased to be exercised.

In practice, actual loss or damage, and some of the effects of a Declaration, a defence practice or a defence operation, may not be ascertainable and calculable until they have long since occurred. Unexploded and buried ordnance may constitute a special hazard, particularly to miners. This alone is likely to raise very serious doubts in the mind of a prospective purchaser whether to purchase, and as to an appropriate purchase price.

Very large sums of money, rights of personal significance to the persons affected and distress at displacement are involved in many compensation cases. So too, difficult questions, not only of law but also of fact regularly arise in such cases. There will often be very marked differences between expert witnesses on factual matters and the final issue of fair value. One very fruitful area of dispute in valuation cases is the identification of what is a discrete question of law or of fact, or, commonly, mixed law and fact. In Melwood Units Pty Ltd v Commissioner of Main Roads [238] , the Judicial Committee referred to errors in relation to principles of valuation interchangeably with errors of law. All of this gives rise to special and difficult problems upon which the courts have not spoken with a unanimous voice as to what, in a particular valuation case, will constitute an appellable error of law [239] . The difficulties that have arisen in compensation cases are with respect well described by Kirby P in this passage [240] :

Because of the sparse economy and potential ambiguity of the phrase "the value of the land", a vast body of common law "principle" has been developed by courts to give meaning to the phrase as it applies to recurring fact situations following compulsory acquisition of the land. About some of the "principles" developed by the common law there may be debate. Many of them appear to fresh minds to be ambiguous and contentious. Others appear to be arbitrary categories of indeterminate reference, designed as much to obscure the judicial leaps to judgment that are required in these cases as to provide guidance about when, and how far, to leap [241] . 1. [1979] AC 426 at 435, 437. 2. See the discussion and summary of the cases in Jacobs, The Law of Resumption and Compensation in Australia (1998), pars 33.8-33.13. 3. Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 at 159. 4. cf Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 434.

These considerations highlight the undesirability of a determination of compensation other than by a proper judicial process including the availability of the usual, and not a restricted right of appeal or review.

Acquisition on just terms is synonymous, in my opinion, with acquisition according to justice and that means justice as administered by a court or tribunal fully and properly equipped to adjudicate upon all relevant matters and not subject to a truncated review or appellate process.

In my opinion therefore, the State is entitled to explore for and win minerals on the alienated land. The Declaration precludes mining on neither those lands nor on the unalienated land because it is invalid. How in fact rights to explore and mine the alienated land are to be exercised does not fall for consideration in this case. The Mining Act is not, as I have said the regime to regulate that exercise. In the case of petroleum (save for the leased land in respect of which there is no such reservation) because of the express reference in the reservations to the Petroleum Act 1967 WA, the State may act under that statute. As for the means to be adopted for the exploration for and exploitation of other minerals on the alienated land, I express no opinion.

Hayne J has pointed to some differences in language in the reservations. These might suggest that for some purposes (perhaps quarrying) both the State and persons authorised by it may enter upon the alienated lands, whilst for mining purposes, this right of entry is confined to the State. It is unnecessary to decide here whether a narrow construction of that reservation is required in light of the fact that at the time of the grants and to the knowledge of the parties, a State would rarely carry on a mining activity in its own right. Nor is it necessary for this Court in these proceedings to determine whether the State would need a special statute or whether it has sovereign power otherwise to look for, and mine minerals other than petroleum on the land subject to the grants, or petroleum and other minerals on the leased land.

As for the unalienated land, in my opinion it is open for mining under the Mining Act, or otherwise as the State may determine and is lawful according to State law.

I would have asked the parties to agree upon the form of appropriate declarations and orders to reflect these reasons and granted liberty to apply.