Commonwealth v Western Australia

Commonwealth v Western Australia - [1999] HCA 5 - HCA 1998 case summary — Zoe

[25]

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] .

[77]

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.

Parties

Applicant/Plaintiff:

Commonwealth

Respondent/Defendant:

Western Australia

Cases Cited (97)

High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Commonwealth v Western Australia [1999] HCA 5

Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 194; Wik Peoples v Queensland (1996) 187 CLR 1 at 200-201; cf Wardle v Manitoba Farm Loans Association [1956] SCR 1 at 11-12.

In the first instance the Commonwealth rests its claim on the right at common law of the Crown to priority of payment when in any administration of assets debts of equal degree due to the Crown and due to subjects of the Crown come into competition. This right arose from the sovereignty of the Crown and was accordingly expressed in terms of prerogative but it is today one of the fiscal rights of government and of course it clearly attaches to the Commonwealth. Here, the term "bind the Crown" refers to the abridgement or abolition of some special right, privilege or immunity setting the executive government apart from citizens generally [58] . More generally, the "prerogative" may identify "the powers accorded to the Crown by the common law" [59] or "the power of the Crown apart from statutory authority" [60] . Here, the question whether a particular statute "binds the Crown" is more likely to turn upon the application, to such activities of the executive government as the making of contracts, of a law of general operation [61] . 1. (1962) 108 CLR 372 at 376-377. 2. cf In re Silver Brothers Ltd [1932] AC 514 at 524. 3. Barton v The Commonwealth (1974) 131 CLR 477 at 498. 4. Theodore v Duncan [1919] AC 696 at 706; (1919) 26 CLR 276 at 282; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 143. 5. Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 424-425, 453.

R v Registrar of Titles (Vic); Ex parte The Commonwealth (1915) 20 CLR 379 at 391, 397, 405-406; Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 26-27. 2. 53 & 54 Vic c 26. 3. Nicholas v Western Australia [1972] WAR 168 at 172. See also Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 424-428, 449-456, 464-465; South Australia v Victoria (1914) 18 CLR 115 at 121-122; The Commonwealth v New South Wales (1923) 33 CLR 1 at 38-39; Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 26; New South Wales v The Commonwealth (1975) 135 CLR 337 at 439; Wik Peoples v Queensland (1996) 187 CLR 1 at 108-110, 139-143, 188-189, 227-229. 4. (1947) 74 CLR 1 at 26; cf Jacobsen v Rogers (1995) 182 CLR 572 at 590-591.

(1944) 68 CLR 261

(1948) 76 CLR 1

(1993) 176 CLR 480

(1997) 190 CLR 513

(1998) 194 CLR 1

(1997) 190 CLR 410

(1920) 28 CLR 129

(1979) 145 CLR 107

(1990) 171 CLR 1

(1995) 182 CLR 572

(1904) 1 CLR 406

(1986) 161 CLR 254

(1998) 193 CLR 346

(1926) 38 CLR 153

(1957) 100 CLR 277

(1981) 147 CLR 617

(1987) 163 CLR 656

(1991) 173 CLR 167

(1979) 145 CLR 172

(1926) 37 CLR 466

(1948) 77 CLR 84

(1983) 153 CLR 280

(1937) 58 CLR 618

(1968) 117 CLR 253

(1992) 175 CLR 453

(1930) 43 CLR 472

(1995) 183 CLR 373

(1980) 142 CLR 237

(1990) 170 CLR 218

(1989) 166 CLR 518

(1969) 121 CLR 177

(1996) 187 CLR 1

(1996) 185 CLR 149

(1923) 33 CLR 1

(1973) 129 CLR 1

(1980) 54 ALJR 289

(1927) 39 CLR 455

(1982) 149 CLR 337

(1911) 12 CLR 667

(1914) 18 CLR 115

(1962) 108 CLR 372

(1974) 131 CLR 477

(1919) 26 CLR 276

(1940) 63 CLR 278

(1951) 83 CLR 1

(1947) 74 CLR 508

(1996) 189 CLR 253

(1915) 20 CLR 379

(1947) 74 CLR 1

(1913) 16 CLR 404

(1975) 135 CLR 337

(1947) 74 CLR 31

(1985) 159 CLR 192

(1970) 123 CLR 89

(1990) 169 CLR 436

(1976) 135 CLR 530

(1996) 186 CLR 630

(1993) 119 ALR 305

(1985) 3 NSWLR 565

(1987) 162 CLR 317

(1994) 181 CLR 583

(1982) 152 CLR 211

(1987) 162 CLR 574

(1961) 106 CLR 268

(1977) 138 CLR 399

(1965) 113 CLR 54

(1986) 161 CLR 47

(1948) 75 CLR 495

(1903) 1 CLR 13

(1962) 108 CLR 130

(1997) 189 CLR 579

(1999) 196 CLR 392

(1932) 48 CLR 128

(1983) 152 CLR 632

(1986) 160 CLR 330

(1994) 11 WAR 315

(1994) 179 CLR 155

(1994) 179 CLR 297

(1946) 72 CLR 269

(1941) 65 CLR 255

(1947) 75 CLR 1

(1983) 158 CLR 1

(1942) 66 CLR 77

(1943) 67 CLR 314

(1909) 8 CLR 330

(1930) 44 CLR 530

(1953) 89 CLR 229

(1977) 139 CLR 362

(1929) 43 CLR 235

(1998) 193 CLR 154

(1961) 105 CLR 361

(1976) 12 ALR 201

(1991) 24 NSWLR 156

At a glance

Court

Decision date

Before

Source

Judgment (281 paragraphs)

Parties

Cases Cited (97)