DURHAM HOLDINGS PTY LIMITED v THE STATE OF NEW SOUTH WALES

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : ALD 30033/98 LOWER COURT JUDICIAL OFFICER : Hulme J

COUNSEL : D F Jackson QC / G de Q Walker (Plaintiff) M G Sexton SC / S J Gageler (Defendant) SOLICITORS : Allen Allen & Hemsley (Plaintiff) I V Knight - Crown Solicitor (Defendant) CATCHWORDS : STATUTORY INTERPRETATION - Interpretation Act 1987 s30 - legislative intention that provision of Interpretation Act does not apply to an act; STATUTORY INTERPRETATION - common law presumption - no intention to expropriate property without compensation; STATUTORY INTERPRETATION - Racial Discrimination Act 1975 (Cth) - s8 "special measure" - s10 a corporation is not a person of a particular race, colour, national or ethnic origin; CONSTITUTIONAL LAW - Commonwealth Constitution s109- inconsistency with state law; CONSTITUTIONAL LAW - limit on legislative power of Parliament - no restriction on power to expropriate property without providing compensation Coal Acquisition Act 1981 Coal Acquisition (Amendment Act) 1990 Coal Mining Act 1973 Constitution Act 1902 ACTS CITED : Commonwealth Constitution Interpretation Act 1987 Native Title Act 1993 (Cth) Pitjantjatjara Land Rights Act 1981 (SA) Racial Discrimination Act 1975 (Cth) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 Brisbane City Council v Ace Waste Pty Ltd (1997) 97 LGERA 74 Bropho v Western Australia (1990-91) 171 CLR 1 Clancy v Butchers Shop Employees' Union (1904) 1 CLR 181 Coco v R (1994) 179 CLR 427 Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 Commissioner of Police v Tanos (1957-58) 98 CLR 383 Darling Casino Ltd v NSW Casino Authority (1997) 191 CLR 602 Director of Public Works v Ho Po Sang [1961] AC 901 Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 QdR 138 Esber v The Commonwealth (1991-92) 174 CLR 430 Ex Parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 G F Heublein & Bro Inc v Continental Liquers Pty Ltd (1962) 109 CLR 153 Gerhardy v Brown (1985) 159 CLR 70 Federal Commissioner of Taxation v Northumberland Development Co Pty Limited (1995) 59 FCR 103 Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at [89] Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162 CASES CITED: Lee v Secretary, Department of Social Security (1996) 68 FCR 491 Magrath v Goldsborough, Mort & Co Limited (1931-32) 47 CLR 121 Mabo v Queensland (1986) 166 CLR 186 Minister for Lands (NSW) v Pye (1951-52) 87 CLR 469 Newcrest Mining (WA) Limited v The Commonwealth (1996-97) 190 CLR 513 NSW Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 P J Magennis Pty Ltd v The Commonwealth (1949) 80 CLR 382 Public Service Association (SA) v Federated Clerks Unions (1991) 173 CLR 132 Pye v Renshaw (1951) 84 CLR 58 Pyneboard Pty Limited v Trade Practices Commission (1982-83) 152 CLR 328 R v Lieschke (1986-87) 162 CLR 447 R v Lord Chancellor; Ex parte Witham (1998) QB 575 Robertson v City of Nunawading [1973] VR 819 Teori Tau v The Commonwealth (1969) 119 CLR 564 Union Steamship Co of Australia Pty Limited v King (1988) 166 CLR 1 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 Wentworth v NSW Bar Association (1992) 176 CLR 239 Western Australia v The Commonwealth ('Native Title Act Case') (1995) 183 CLR 373 Wik Peoples v Queensland (1996) 187 CLR 1 Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 DECISION : Proceedings dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ HANDLEY JA GILES JA

DURHAM HOLDINGS PTY LIMITED v THE STATE OF NEW SOUTH WALES

The Plaintiff was the owner of coal which was subject to the expropriation and compensation regime instituted pursuant to the Coal Acquisition Act 1981 ('the Act') as amended and the Coal Acquisition (Compensation) Arrangements 1985 ('the Arrangements') as amended. The Plaintiff sought declarations as to the application and validity of a number of aspects of the compensation regime. The focus of the Plaintiff's submissions was subcl 22AA(3) of the Arrangements which was added to the Arrangements after the plaintiff had lodged a claim for compensation but before it had been determined. This subclause had the effect of capping the quantum of compensation payable to the Plaintiff.

The Plaintiff put forward four alternative propositions:

1 By reason of s30(1) of the Interpretation Act 1987, subcl 22AA of the Arrangements does not apply to the Plaintiff's claim for compensation.

2 By reason of the presumption in the law of statutory interpretation that an act will not be construed as taking property without compensation, subcl 22AA(3) of the Arrangements does not apply to the Plaintiff's claim for compensation.

3 Subsection 6(3) of the Act is inoperative by force of s109 of the Commonwealth Constitution. The Act is inconsistent with s10 of the Racial Discrimination Act 1975 (Cth) by reason of the combined effect of that Act and the Native Title Act 1993 (Cth).

4 Subsection 6(3) of the Act is invalid to the extent that it purports to authorise the making of an arrangement to the effect of subcl 22AA(3) of the Arrangements by reason of a restriction on the legislative power of the New South Wales Parliament.

Section 5(2) of the Interpretation Act provides that that the provisions of the Interpretation Act apply to an act except insofar as the contrary intention appears in that act. In this case a contrary intention appears in the Coal Acquisition Act and the Arrangements. Subsection 6(3) and subcl 22AA(3) were inserted into the Act and Arrangements in 1990 which was a time when there was no possibility of new claims for compensation. Viewed against this factual matrix, the provisions demonstrate an intention that the amendments were to apply to existing claims for compensation.

The presumption that Parliament does not intend to expropriate property without providing just terms may be rebutted if the intention to do otherwise is sufficiently clear: Bropho v Western Australia (1990-91) 171 CLR 1. Federal Commissioner of Taxation v Northumberland Development Co Pty Limited (1995) 59 FCR 103 distinguished.

The presumption that Parliament did not intend to alienate property without compensation is rebutted as the Act expressly authorises that provisions may be made to provide compensation which does not constitute full or adequate compensation.

Inconsistency under s109 of the Commonwealth Constitution

There is no inconsistency between the Coal Acquisition Act and the Racial Discrimination Act for two, alternative reasons. First, s10 of the Racial Discrimination Act only operates when, by reason of a law, persons of a particular race, colour or national or ethnic origin do not enjoy a right, or enjoy a right to a more limited extent that do persons of another race, colour, national or ethnic origin. The Plaintiff is a corporation and as such has no "race, colour or national or ethnic origin" within the meaning of s10 of the Racial Discrimination Act. There is thus no inconsistency by reason of the combined effect of the Commonwealth laws and the Coal Acquisition Act of NSW. Gerhardy v Brown (1985) 159 CLR 70 distinguished.

Secondly, s8(1) of the Racial Discrimination Act operates to limit the application of 10(1) to an act which is not a "special measure" within the meaning of Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination. The Native Title Act is such a special measure: Western Australia v The Commonwealth ('Native Title Act Case') (1995) 183 CLR 373, Gerhardy v Brown (1985) 159 CLR 70 applied.

There is no restriction on the legislative power of the New South Wales Parliament which prevents the expropriation of property without the provision of compensation: Teori Tau v The Commonwealth (1969) 119 CLR 564, Mabo v Queensland (1986) 166 CLR 186. P J Magennis Pty Limited v The Commonwealth (1949) 80 CLR 382, Pye v Renshaw (1951) 84 CLR 58, Minister for Lands (NSW) v Pye (1951-52) 87 CLR 469 considered.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ HANDLEY JA GILES JA

DURHAM HOLDINGS PTY LIMITED v THE STATE OF NEW SOUTH WALES

JUDGMENT 1 SPIGELMAN CJ: The Plaintiff was the owner of coal in New South Wales. That coal was subject to the expropriation and compensation regime instituted in this State pursuant to the Coal Acquisition Act 1981 (NSW) as amended ("the Act") and the Coal Acquisition (Compensation) Arrangements 1985 (NSW), as amended ("the Compensation Arrangements"). The Plaintiff instituted proceedings in the Supreme Court seeking a number of declarations as to the application and/or invalidity of a number of aspects of the scheme, culminating in a claim of entitlement to compensation in an amount exceeding $93 million, together with interest and costs. 2 By order of 22 September 1998 the proceedings were removed to the Court of Appeal pursuant to Pt 12 r 2(1)(b) of the Supreme Court Rules 1970 and the following statement in the form of an order was made: "States that the question to be decided in these proceedings is whether, on the Amended Agreed Facts filed in these proceedings, the plaintiff is entitled to all or any of the relief sought in the Amended Statement of Claim."

Agreed Facts 3 The Amended Agreed Facts were set out in 18 paragraphs as follows, omitting references to Annexures and the Annexures themselves: "1 The plaintiff is a company duly incorporated in the State of New South Wales and able to sue and be sued. 2 Immediately prior to 1 January 1982, the coal in Certificates of Title Volume 13948 Folio 110 and Volume 13948 Folio 112 and old system Conveyances No. 679 Book 3164 and No. 367 Book 2947 but excluding the coal in Conveyance No. 287 Book 3323 (the Coal) was vested in the plaintiff as sole proprietor in fee simple. 3 The Coal Acquisition Act 1981 (the Act) came into force: (a) as to sections 1 and 2, on 18 December 1981;

(b) as to the remainder, on 1 January 1982, and vested the Coal in the Crown. 4 The Coal Acquisition (Compensation) Arrangements 1985 (the Arrangements) were made by the Governor with the advice of the Executive Council pursuant to Section 6 of the Act on 19 June 1985 by Instrument published in the New South Wales Government Gazette on 21 June 1985 … 5 The New South Wales Coal Compensation Board (CCB) was established by Clause 4 of the Arrangements for the purposes of the Arrangements.

6 By Instrument signed on 11 September 1985, the Lieutenant-Governor made arrangements which amended the Arrangements. The Instrument was published in the New South Wales Government Gazette on 13 September 1985 … Those arrangements included new clauses 17A and 17B dealing with interim payments of compensation. 7 The plaintiff was eligible to make a claim under Clauses 9 and 11 of the Arrangements in respect of the Coal. Such a claim was made by the plaintiff in April 1986 and was recorded as claim No. CCB8991 (the Claim) …

8 The Coal Acquisition (Amendment) Act 1990 came into force on 22 June 1990. That Act added, inter alia, subsection 6(3) to the Act. 9 By Instrument signed on 27 June 1990, the Governor made arrangements which purported to amend the Arrangements. The Instrument was published in the New South Wales Government Gazette on 29 June 1990 … Those arrangements included, inter alia, a new subclause 22AA(3) to the Arrangements.

10 The plaintiff is the 'Durham Holdings Pty Ltd' referred to in subclause 22AA(3) of the Arrangements. 11 Between 1986 and 1995 the plaintiff received eleven interim payments pursuant to clause 17A of the Arrangements in the amounts, and on or about the dates, specified below: 4 Nov 86 $4,000,000 20 May 87 $5,000,000 28 Feb 89 $4,900,000 9 Feb 90 $2,000,000 27 Jan 94 $2,000,000 6 Apr 94 $2,000,000 17 Aug 94 $1,500,000 26 Oct 94 $1,500,000 14 Dec 94 $2,000,000 25 Jan 95 $1,800,000 11 May 95 $306,000

TOTAL $27,006,254 12 On 19 September 1989 and on 16, 13 and 30 May 1990, the responsible minister and other speakers on behalf of the Government in the Legislative Assembly and the Legislative Council expressed the Government's intention to impose a limit totalling $60 million on compensation payments to the three largest claimants, including the plaintiff …

13 The Government's intention in that regard was subsequently embodied in clause 22AA of the Arrangements as amended. 14 The defendant, between financial years 1990-91 and 1996-97, provided in excess of $300 million for payment of compensation under the Arrangements as amended and the Minister administering the Act authorised the making of payments of such compensation under provisions of the Arrangements as amended other than subclause 22AA(3) to claimants other than the plaintiff.

15 CCB issued a final assessment report in respect of the Claim in June 1997 … 16 CCB determined the Claim on 22 August 1997 and issued the Notice of Determination in respect of the claim to the plaintiff … (The reference to Clause 22AA(1) in the Notice of Determination is an error. The reference should be to Clause 22AA(3)).

17 The plaintiff lodged a Notice of Appeal against CCB's determination of the Claim with the New South Wales Coal Compensation Review Tribunal … 18 The Tribunal has adjourned the appeal by the plaintiff until 7 December 1998 pending a determination of these proceedings by the Court." Legislative Scheme 4 The Coal Acquisition Act 1981 as originally enacted included the following provisions: "5 All coal that, but for this Act, would be vested in - (a) an instrumentality or agency of the Crown; or (b) any person other than the Crown, is vested in the Crown freed and discharged from all trusts, leases, licences, obligations, estates, interests and contracts. 6(1) The Governor may make arrangements - (a) for the determination of the cases, if any, in which compensation is to be payable as a result of the enactment of this Act; and (b) if there are any such cases - for the determination of the amount and method of payment of any such compensation. (2) Except in the cases, if any, and to the extent, determined under subsection (1), compensation is not payable as a result of the enactment of this Act." 5 By the Coal Acquisition (Amendment) Act 1990 ("the Amendment Act") which was assented to on 14 June 1990, certain amendments were made. The Amendment Act was described as: "An Act to amend the Coal Acquisition Act 1981 for the purpose of making further provision with respect to determining the compensation that is to be payable as a result of the operation of that Act." 6 Section 6 of the original Act was amended by the addition of subsection (3) as follows: "(3) Arrangements under this section may differentiate between the persons to whom compensation is payable as a result of the enactment of this Act by providing that specified persons, or persons of a specified class, are not entitled to be paid more than a specified sum or specified sums of money in respect of coal vested in the Crown by the operation of section 5, irrespective of the amount of coal that they owned immediately before the commencement of this Act."

Compensation Scheme 7 By instrument of 19 June 1985 published in the New South Wales Government Gazette on 21 June 1985, the Governor of New South Wales made arrangements under s6 of the Coal Acquisition Act 1981. That instrument was proclaimed to take effect on the day after the day on which it was published in the Gazette. 8 The instrument contained the following provisions: "8 Compensation in respect of coal referred to clause 9(1), and in respect of a pecuniary loss referred to in clause 9(2), is payable in accordance with the provisions of this instrument and not otherwise.

9(1) Any person, other than the Crown or an instrumentality or agency of the Crown, is eligible to make a claim under clause 10 or 11 if - (a) saleable coal was, immediately before the base date, vested in that person; and (b) that coal was situated within a colliery holding at any time during the period beginning with the base date and ending with 1 January 1986. (2) Where a person claims to have sustained pecuniary loss which is directly attributable to the discharge of any trust, lease, licence, obligation, estate, interest or contract by virtue of the operation of section 5 of the Coal Acquisition Act 1981, and the loss is not one in respect of which a claim could be made under clause 10 or 11, the person is eligible to make a claim under clause 12." 9 Clause 10 made detailed provision for the making of claims by former coal owners who are holders of colliery holdings as defined in the Act; cl 11 made provision for claims by persons who were not holders of such colliery holdings and cl 12 made provision for claims by other persons. 10 As set out in the Agreed Facts, the relevant provision for present purposes is cl 11, which stated: "11(1) A claim for compensation under clause 9(1) shall, where the saleable coal that is the subject of the claim is or was, on or after the base date, within a colliery holding of which the claimant is not the registered holder - (a) be made in writing in a form provided or approved by the Compensation Board for the purposes of this clause; (b) contain or be accompanied by the particulars specified in clause 10(2)(a)-(e) unless those particulars are not known to, and cannot reasonably be ascertained by, the claimant or those particulars have been provided to the Board by the registered holder of the colliery holding; (c) be accompanied by - (i) the documents specified in clause 10(3) unless those documents are not in the possession of and cannot reasonably be obtained by the claimant or those documents have been provided to the Board by the registered holder of the colliery holding; and (ii) a copy of the lease, agreement or other instrument (not being a coal lease granted under the Coal Mining Act 1973) in force immediately before the base date providing for the payment of a royalty, return or other consideration in respect of the coal to which the claim relates; and (d) be lodged with the Compensation Board - (i) subject to subparagraph (ii), before 30th April 1986; or

(ii) if this instrument does not take effect on or before 31st October, 1985 - within the period of 6 months after this instrument takes effect. (2) Notwithstanding subclause (1), the particulars referred to in subclause (1)(b) and the documents referred to in subclause (1)(c) may be provided or lodged after the time by which the claim is required by subclause (1) to be lodged with the Compensation Board but, subject to clause 13, a claim for compensation made under that subclause shall not be entertained by the Board unless those particulars are provided, and those documents are lodged, before the expiration of 6 months after that time or within such further period as the Board may in any particular case allow." 11 Clause 13 stated: "13 Notwithstanding the provisions of clause 10, 11 and 12, a claim for compensation under any of those provisions may be lodged with the Compensation Board after the time by which the claim is required by clause 10(1), 11(1) or 12(1) to be so lodged if - (a) the Board considers that the failure to lodge the claim within that period was attributable to mistake, absence from New South Wales or other reasonable excuse; and (b) the claim is lodged with the Board before the expiration of the period of 24 months after that time." 12 Clause 19 contained a detailed formula for the computation of compensation, in the case of claims lodged under cl 11. 13 Subclause 19(1) provided: "19(1) Where, in the case of a claim made in accordance with clause 11, the Compensation Board is satisfied that the claimant is an eligible person to whom that clause applies and, but for the enactment of the Coal Acquisition Act 1981, would be or would have been entitled to the ownership of saleable coal within the colliery holding specified or referred to in the claim, the Board shall proceed to ascertain the number of tonnes of that saleable coal which has been or, as the case may be, will, in the opinion of the Board, be extracted from within the colliery holding during each relevant period beginning with the base date and ending with the last day of the relevant period within which that saleable coal has or, as the case may be, will, in the opinion of the Board, become exhausted." 14 Subclause 19(2) set out a formula in algebraic form which, it is sufficient to note, determined the amount of compensation by, inter alia, the tonnes of saleable coal determined under subclause (1). Subclause 19(3) provided for the calculation of compensation on the basis of an adjustment to the amount determined under subclause 19(2). The effect of the formula, shortly put, was to relate compensation to the amount of "saleable coal", a term defined in cl 3 to extend to coal "which might reasonably be expected to be extracted for sale or disposal". 15 Clause 24 made provision for interest on compensation. Clause 25 made provision for payment of compensation in the following form: "25(1) Where an amount of compensation has been determined in respect of a claim that has been finally determined, the Compensation Board shall transmit the determination to the Minister who, on receipt of the determination, may authorise payment of the amount of compensation specified in that determination." 16 There were also detailed arrangements for appeals from decisions of the Compensation Board to a Compensation Review Tribunal. Schedules 1, 2 and 3 of the instrument made detailed provision for the operations of the Board and the Tribunal. 17 By instrument dated 11 September 1985, published in the New South Wales Government Gazette on 13 September 1985, certain amendments were made to the Compensation Arrangements that do not need to be set out. 18 The issues in dispute in this case turn on amendments made to the Compensation Arrangements by instrument dated 27 June 1990, published in the Government Gazette on 29 June 1990. The crucial provision was the insertion of a new cl 22AA into the Compensation Arrangements. The respective subclauses of the new clause referred to three companies by name, including, relevantly, subcl (3) as follows: "22AA(3) If Durham Holdings Pty Limited has made claims for compensation in accordance with clauses 10, 11, 12 or 22AB and the total amount of compensation payable in respect of all of those claims would, apart from this clause, exceed $23,250,000, then, irrespective of the provisions of clauses 18-22, the total amount of compensation so payable is, subject to subclause (4), to be $23, 250,000 and no more."

Nothing turns, for present purposes, on subcl (4). The Compensation Arrangements of 1985 were further amended in a number of respects, to establish consistency with the new cl 22AA. 19 Clause 19, which related to the making of claims under cl 11 of the Compensation Arrangements, was itself amended by the insertion at the end of that clause of a new subclause: "(7) This clause is subject to clause 22AA." 20 Similarly, the obligation of the Compensation Board under pre-existing cl 17, to "as soon as practical after a claim is made …proceed to consider and determine the claim in accordance with …" various clauses of the Act, was amended to include cl 22AA as one of those clauses. 21 The instrument of 27 June 1990 was accompanied by an Explanatory Note which included the following: "The object of this instrument is to amend the Coal Acquisition (Compensation) Arrangements 1985 so as ……… (e) to limit to $60 million the total amounts that may be paid as compensation to certain specified coal mining companies under the Arrangements".

Plaintiff's Contentions 22 The Plaintiff put forward four alternative propositions:

(i) By reason of s30(1) of the Interpretation Act 1987 (NSW), subcl 22AA(3) of the Compensation Arrangements does not apply to the Plaintiff's claim for compensation.

(ii) By reason of the presumption in the law of statutory interpretation that an act will not be construed as taking the property of a citizen without compensation, subcl 22AA(3) of the Compensation Arrangements does not apply to the Plaintiff's claim for compensation.

(iii) Subsection 6(3) of the Act is inoperative by force of s109 of the Commonwealth Constitution , by reason of inconsistency with s10 of the Racial Discrimination Act 1975 (Cth).

(iv) Subsection 6(3) of the Act is invalid to the extent that it purports to authorise the making of an arrangement to the effect of subcl 22AA(3) of the Compensation Arrangements, by reason of a restriction on the legislative power of the New South Wales Parliament.

Interpretation Act 23 The Plaintiff relied on s30(1) of the Interpretation Act which relevantly provides: "30(1) The amendment or repeal of an Act or statutory rule does not: ……… (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or ……… (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability ... ……… … and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed." 24 Section 5(2) of the Interpretation Act provides: "5(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned." 25 The Plaintiff's submission was that, by reason of the statutory presumption created by s30(1), neither the inclusion of subs6(3) into the Act nor the inclusion of cl 22AA(3) of the Compensation Arrangements had any effect on the Claimant's claim. The Plaintiff submitted that its right to make a claim for compensation under the original Arrangements was a "right" or a "privilege" within s30(1)(c). Alternatively, it submitted that the claim for compensation made under the 1985 Arrangements gave rise to an "investigation, legal proceeding or remedy" within s30(1)(e). 26 As noted in par 7 of the Agreed Facts set out above, the Plaintiff made a claim in April 1986. That document was annexed to the Agreed Facts. It constitutes a claim under cl 11 of the Compensation Arrangements as a former coal owner, who is not the holder of a relevant "colliery holding". Even though the claim had not yet been determined, the Plaintiff submitted that its claim created a conditional "right" within s30(1)(c). (See eg Esber v The Commonwealth (1991-92) 174 CLR 430 at 440; NSW Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 694.) Alternatively, it asserted that the process of determining its claim was a "proceeding" etc within s30(1)(e). 27 The combined effect of cl 8 and cl 19 may well be to create what Hope JA described in NSW Aboriginal Land Council v The Minister (at 694 C-D), as a "right to have the claim granted", rather than a "right to have its claim investigated", so far as the proceedings before the Board was concerned. The decision of the Compensation Board was not discretionary. The Defendant did not submit that the use of the word "may" in cl 25 created a discretion in the Minister as to whether or not a payment should be made. 28 Accordingly, it is not necessary to consider whether the High Court in Esber intended to overrule the reasoning in earlier judgments, to which the High Court otherwise referred with approval, that indicated that there was a crucial distinction between discretionary and non discretionary decisions. (See NSW Aboriginal Lands Council v The Minister at 694, 696; Director of Public Works v Ho Po Sang [1961] AC 901 at 920, 921-922; Robertson v City of Nunawading [1973] VR 819. See also Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 300. The issue has been referred to in subsequent cases. See Lee v Secretary, Department of Social Security (1996) 68 FCR 491 at 496-498, 503-507, 513-516; Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 at 595-596; Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162 at 167-181; 183-184; 188-191; Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 QdR 138 at 148; Brisbane City Council v Ace Waste Pty Ltd (1997) 97 LGERA 74 at 77). 29 In written submissions filed on behalf of the Plaintiff no distinction was drawn, in terms of the application of s30(1) of the Interpretation Act, between subs6(3) of the Coal Acquisition Act and subcl 22AA(3) of the Compensation Arrangements. The written submissions focused on the latter. The assertion that the claim for compensation constituted a "right" or a "privilege" within s30(1)(c) was said to support the proposition that the right was "therefore not affected by the compensation cap introduced by cl 22AA(3) in June 1990". Similarly, the reliance on s30(1)(e) was said to constitute the claim for compensation lodged in April 1986 as "likewise not affected by the 1990 amendments to the Arrangements including cl 22AA(3)". 30 No different focus emerged in oral submissions. 31 In my opinion, there is a "contrary intention" within s5(2) of the Interpretation Act 1987 which is sufficient to override s30(1)(c) and s30(1)(e) in their application to subs6(3) and subcl 22AA(3). The existence of a contrary intention is a question of statutory construction. (See eg G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 at 159-162). 32 Although reference was made to the inclusion of subs 6(3) into the Act, during the course of the submissions on this aspect of the case no separate submission was made that either the right to claim compensation or the actual claim for compensation was protected in any way by reason of the fact that subs 6(3), considered on its own, could not be said to contain an indication contrary to the protection provided by s30(1) of the Interpretation Act. Nor, in my opinion, could any such proposition be sustained. 33 Subsection 6(3) empowered arrangements to be made which provided that "specified persons" could not receive "more than a specified sum" and that that was so "irrespective of the amount of coal that they owned immediately before the commencement of the Act". The Act had "commenced" almost a decade before the amendment which inserted subs6(3). It was, in my opinion, intended to apply to claims made but not yet determined. 34 Subclause 22AA(3) commences with the words: "If Durham Holdings Pty Limited has made claims for compensation …".This subclause was plainly intended to apply to the claims actually made by the Plaintiff. The subclause establishes a maximum payable to the Plaintiff in circumstances in which "the total amount of compensation payable in respect of all of those claims would" exceed the cap stipulated in the subclause. 35 The clear effect of this provision is reinforced by the insertion of subcl 19(7). As noted above, cl 19 is concerned with the calculation of compensation with respect to the relevant claims of the Plaintiff. Subclause 19(7) is an express provision that the clause making provision for computation is subject to cl 22AA. Until so amended, the computation would have required the determination of an amount in accordance with the quantity of "saleable coal". 36 Furthermore, cl 17 which obliged the Compensation Board to "consider and determine" claims "in accordance with" certain clauses, was amended to include cl 22AA as such a clause. 37 The factual matrix available to the Parliament and the Executive as at the dates that subs 6(3) was inserted and subcl 22AA(3) was added to the Compensation arrangements, makes the intention that they operate retrospectively, clear. 38 The Act of 1981 had led to the original Compensation Arrangements of 1985. Included in those arrangements were certain time limits with respect to each of the clauses, pursuant to which claims would be lodged in the respective factual situations to which they referred. These were subcl 10(1)(d), subcl 11(1)(d) and subcl 12(1)(d). Subclause 11(1)(d) is the relevant one. It is not necessary to set out the others. Each sub-clause provided for claims to be lodged with the Compensation Board before 30 April 1986. As noted above, cl 13(b) provided for a discretionary extension of time by the Board subject to a maximum of an additional 24 months. Accordingly, there was no provision in the Compensation Arrangements for the receipt of any claim from anybody after 30 April 1988. The Plaintiff made its claim in April 1986. When the Parliament came to make the amendments in 1990, and the Governor made the amendments to the Compensation Arrangements at that time, there was no possibility of new claims. In this factual matrix the correct conclusion is that there was a clear contrary intention within s5(2) of the Interpretation Act with respect to both subs6(3) and cl 22AA. 39 The only submission against this conclusion, made on behalf of the Plaintiff, was that this factual matrix turned on the existing provisions of the Compensation Arrangements, namely the particular time limits which it contained and the provision for an extension of time. The submission was made that there was nothing to prevent those arrangements being amended so as to allow further time for the making of claims and, if that had been done, then there may have been cases to which the amendment could apply. Counsel for the Plaintiff accepted that at the time the amendments under challenge were made to the Act and to the Compensation Arrangements, no amendment of the arrangements with respect to the time limit provisions had been made. In my opinion, there is no warrant for confining subs6(3) or cl 22AA to the possibility that the time limits in the Compensation Arrangements could be changed in the future. 40 In my opinion this aspect of the Plaintiff's case fails.

Construction of s6 of the Coal Acquisition Act 41 The Plaintiff relied on the rebuttable presumption that Parliament did not intend to alienate property without compensation. This is one of a number of such presumptions in the law of statutory interpretation. 42 In a six person joint judgment in Bropho v Western Australia (1990-91) 171 CLR 1, a case concerned with the appropriate test for determining whether an Act was intended to bind the Crown, the High Court considered the existing rule of statutory construction on that matter and added: "One can point to other 'rules of construction' which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such 'rules' are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively, which would deprive a superior court of power to prevent an unauthorised assumption of jurisdiction or which would take away property without compensation . The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used'. ( Potter v Minahan (1908) 7 CLR 277 at 304 and see, also, Ex parte Walsh & Johnson; In re Yates (1925) 37 CLR 36 at 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear." (at 17-18, emphasis added) 43 It may be that the strength of the presumption that Parliament does not intend the appropriation of property without compensation varies from time to time, such as legislation passed during time of war or by reason of changes in the dominant political philosophy from one era to another. Nevertheless there is no reason to doubt that in 1981, when the Coal Acquisition Act was passed, the presumption that Parliament did not intend to appropriate property without compensation was a strong one. 44 As with all such presumptions it is rebuttable. The formulation of the test for rebuttal has been variously expressed. A common form is the first of the three forms appearing in the above extract from Bropho, namely "clear and unambiguous words" See eg Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359; Wik Peoples v Queensland (1996) 187 CLR 1 at 146-147. . The other two formulations in Bropho itself - "unambiguously clear" and "irresistible clearness" - are intended to be alternative ways of expressing the same concept. There are also other equivalent formulations such as "express words of plain intendment" Commissioner of Police v Tanos (1957-58) 98 CLR 383 at 396; R v Lieschke (1986-87) 162 CLR 447 at 463; Annetts v McCann (1990) 170 CLR 596 at 559; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. ; "clear words or necessary implication" Wentworth v NSW Bar Association (1992) 176 CLR 239 at 252. ; "unmistakable and unambiguous" Coco v R (1994) 179 CLR 427 at 437, 438; Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at [89]. ; "expressly stated or necessarily to be implied" Clancy v Butchers Shop Employees' Union (1904) 1 CLR 181 at 204; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 at 160; Darling Casino Ltd v NSW Casino Authority (1997) 191 CLR 602 at 633. ; "clearly emerges whether by express words or by necessary implication" Pyneboard Pty Limited v Trade Practices Commission (1982-83) 152 CLR 328 at 341; Public Service Association (SA) v Federated Clerks Unions at 160. ; or "with a clearness which admits of no doubt" Magrath v Goldsborough, Mort & Co Limited (1931-32) 47 CLR 121 at 128, 134.. 45 As noted above, the joint judgment of the High Court in Bropho referred with approval to the reasoning of Isaacs J in Ex Parte Walsh & Johnson; In Re Yates (1925) 37 CLR 36 at 93, where his Honour said: "… the full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances, to overcome the presumptions." 46 The Plaintiff's submission was that by the operation of such a presumption, s6 of the Coal Acquisition Act should be construed so as not to authorise the inclusion in the Arrangements, for which s6 provides, of a clause such as subcl 22AA(3) which permits the acquisition of property for inadequate compensation. The Plaintiff pointed to the fact that the valuation, admittedly conducted on the basis of the amended scheme, led to an amount of in excess of $93 million. The Plaintiff received interim payments totalling approximately $27 million and the "cap" in subcl 22AA(3) is $23.5 million. 47 The Plaintiff relied on the reasoning of Beaumont J in Federal Commissioner of Taxation v Northumberland Development Co Pty Limited (1995) 59 FCR 103. Although it appears that the Board's decision there under consideration was made after the 1990 amendments to the Act and the Compensation Arrangements came into effect, nothing in the case turned on those provisions. Accordingly, Beaumont J set out s6 consisting, as originally enacted, of only the first and second subsections, notably omitting subsection (3) which was inserted in 1990, and then said: "It is clear that sections 5 and 6 of the Act were intended to be read together but a question then arises whether the use of the word 'may' in section 6(1) ('The Governor may make arrangements…') is a true or real discretion, in the sense that it is purely facultative on the one hand, or on the other whether, in certain situations it means 'must' so that it is then mandatory to exercise the discretion and to make the arrangements." (at 114)

His Honour went on to express the opinion that in his view the exercise of the discretion was rendered obligatory. 48 His Honour then went on to make the observation on which the Plaintiff relied: "In my opinion, when the Act is read as a whole, nothing appears which would contradict the ordinary presumption that the acquisition of the coal was not to take place except upon the basis that adequate compensation would be paid in those cases where justice so required. It is true that section 6(1)(a) speaks of 'the cases, if any in which compensation is to be payable …' (my emphasis) but in my view, this is consistent with the construction previously mentioned, that is, that the Governor was bound to provide machinery for the payment of adequate compensation in those instances where it was just to do so. The statutory arrangements were, in fact, made, and it is common ground that their provisions were within power." (at 114). 49 It is plain that Beaumont J was not concerned with the issue that is presently before this Court. His Honour was directing his remarks to the question whether or not the Governor was obliged to promulgate a scheme under s6(1) and s6(2). His Honour was not concerned with the proper construction of subs6(3), to which he made no reference. I note that Einfeld J took the opposite view with regard to the use of the word "may" as permissive and construed the words "if any" as conferring a discretion to decide whether or not any compensation was to be offered (at 114-118). His Honour also made no reference to subs6(3). The third member of the court was Davies J, who did refer to the fact that the Compensation Arrangements were changed in June 1990. His Honour did not find it necessary to address the issue to which I have referred, but it would appear that his reasoning tended to support the conclusions of Einfeld J (at 108). It is unnecessary to resolve this difference of opinion, because none of their Honours purported to construe subs6(3). 50 Submissions were made to this Court as to the stringency with which the presumption that Parliament did not intend to acquire property without compensation should be applied in a case such as the present, where substantial, albeit not complete, compensation was proffered. By reason of the clarity of subs6(3) itself, it is not necessary to decide the matter on any such basis. Furthermore, it is not necessary to consider whether or not a construction should, with respect to this particular presumption, be applied with particular stringency, so that it is difficult to perceive of any form of words capable of satisfying a 'necessary intention test' and that accordingly express words are, as a practical matter, required. (See R v Lord Chancellor; Ex parte Witham [1998] QB 575 at 584; Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at [137]). 51 Once one places the provisions of subs6(3) of the Act side by side with the provisions of subcl 22AA(3) of the Compensation Arrangements, it can readily be seen that the latter is expressly authorised by the former. 52 First, the Act expressly authorises a provision with respect to a specified person. Durham Holdings Pty Limited is so specified in the Compensation Arrangements. Secondly, the Act expressly authorises a provision that such a person is "not entitled to be paid more than a specified sum". Subclause 22AA(3) specifies such a sum. Thirdly, the Act expressly permits a sum to be so "specified" in a manner "irrespective of the amount of coal that they owned immediately before the commencement of this Act". This last provision makes it clear that the power extends to the specification of a sum which does not constitute either full or adequate compensation. Accordingly, the particular amount of $23,250,000 "and no more", found in subcl 22AA(3), is permitted. There is no other material part of subcl 22AA(3). 53 The rebuttable presumption, is, in my opinion, expressly rebutted. Accordingly, this aspect of the Plaintiff's claim should be dismissed.

Inconsistency under s109 of the Commonwealth Constitution 54 The Plaintiff submitted that subs6(3) of the Coal Acquisition Act is inconsistent with s10 of the Racial Discrimination Act, by reason of the combined operation of that Act and the Native Title Act 1993 (Cth). The submission was based on the proposition that, as just terms were made available to Aborigines under the Native Title Act, to deprive coal owners of just terms would be inconsistent with the operation of s10 of the Racial Discrimination Act. Accordingly, s109 of the Commonwealth Constitution would render the relevant provision of the inconsistent State Act inoperative. 55 The Racial Discrimination Act implements in Australia the International Convention on the Elimination of All Forms of Racial Discrimination 1966 ("the Convention"). Section 10 of the Act relevantly provides: "10(1) If, by reason of, or of a provision of, a law of the Commonwealth or of the State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the firstmentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origins. (2) A reference in subsection (1) to a right includes a reference to a right of the kind referred to in Article 5 of the Convention." 56 It is also relevant to note s8: "8(1) This part does not apply to, or in relation to the application of, special measures to which paragraph (4) of Article 1 of the Convention applies…" 57 Paragraph 4 of Article 1 of the Convention states: "4 Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights or fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved." 58 The Plaintiff accepted that as at the date on which the acquisition of its property occurred, being 1 January 1982, there was nothing to which s10 of the Racial Discrimination Act could attach. However, as at the date that the Native Title Act came into operation there was an undetermined claim for compensation made on behalf of the Plaintiff. This was said to have consequences, even though the cap of $23,250,000 had come into force prior to the Native Title Act. 59 The relevant discriminatory conduct was said to arise by reason of the fact that holders of native title rights and interests were entitled to just terms by reason of the provisions of s20, s23 and s51 of that Act. 60 Section 20 states: "20(1) If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to this State or Territory. (2) Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19. (3) The native title holders may recover the compensation from the State or Territory." 61 Section 23, as originally enacted, provided: "23(1) This section applies if an act is a permissible future act, other than one to which section 24 or 25 applies. (2) Subject to subdivision B (which deals with the right to negotiate), the act is valid. (3) If the act is the acquisition, under a Compulsory Acquisition Act, of the whole or part of any native title rights and interests: (a) the non-extinguishment principle applies to the acquisition; (b) nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests; and (c) if the Compulsory Acquisition Act does not provide for compensation of just terms to the native title holders for the acquisition, they are entitled for compensation for the acquisition in accordance with Division 5." 62 Section 51 states: "51(1) Subject to subsection (3) entitlement to compensation under division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests." 63 The Defendant submitted that there were a number of deficiencies in the Plaintiff's case in this respect. It is only necessary to deal with two. First, the Defendant submitted the Plaintiff, as a corporation, was not a "person of a particular race, colour or national or ethnic origin", within the meaning of s10(1) of the Racial Discrimination Act. Secondly, it submitted that the Native Title Act is a "special measure" within the meaning of Article 1(4) of the Convention and accordingly, by force of s8 of the Racial Discrimination Act, s10 of that Act did not apply. 64 As to the first matter, I agree that the Plaintiff has no "race, colour or national or ethnic origin". Accordingly s10 of the Act has no application to it. 65 No evidence was put before the Court as to the racial characteristics of any of the persons associated with the Plaintiff whether as shareholders or directors. This was not a matter referred to in the Agreed Facts. In its written submissions, the Plaintiff asserted that none of its directors were Aboriginals, though it did not say to what particular race or races the directors belonged. There is no basis on which the Court can take cognisance of this alleged fact. It was not within the Agreed Facts as set out above. Nor was it otherwise established. 66 Even if it had been established that all directors were non-Aboriginals, no reason was put forward why the race of directors would be at all relevant. They, in their capacity as directors, lost no property. It could be said that, indirectly, the shareholders in the Plaintiff were disadvantaged by the scheme of which complaint is made. No submission was made with respect to the race or races to which any shareholders belong, nor was there any evidence put before the Court on this matter. 67 In any event, I am of the opinion that this submission of the Defendant should be upheld, even on the assumption that every shareholder, and every director of the company was non-Aboriginal. A commercial corporation, like the Plaintiff, has no "race". 68 The Plaintiff submitted that this was an appropriate case to lift the corporate veil. It relied in this regard on the judgment of Brennan J in Gerhardy v Brown (1985) 159 CLR 70 in which it was submitted that his Honour lifted the corporate veil on the facts of that case. 69 The Plaintiff's submission referred to his Honour's reasoning at pp133-134. His Honour was there concerned with the question of special measures and the proper construction of Article 1(4) of the Convention, specifically of the words "securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection". His Honour was not concerned with the construction of the words "persons of a particular race, colour or national or ethnic origin" in s10(1) of the Racial Discrimination Act. His Honour laid down a series of indicia of a "special measure", the first of which was that "the beneficiaries of a special measure are natural persons, not a corporation" (133). This was because the Convention protected "human rights and fundamental freedoms" (133). 70 In order to decide the question, whether or not the Pitjantjatjara Land Rights Act 1981 (SA) was a "special measure", his Honour was considering the implications of the fact that the rights conferred on the Pitjantjatjaras was not the actual ownership of the lands, but the rights which they were individually or collectively able to exercise over, and in respect of, the land. In the course of this consideration his Honour said: "It is immaterial that individual Pitjantjatjaras are not the legal owners of the lands, for human rights and fundamental freedoms are not necessarily legal rights and freedoms." (at 133) 71 The relevant restriction on the rights with which his Honour was dealing, for the purposes of determining whether or not the Act was a "special measure", did not turn on lifting any corporate veil. Rather, his Honour was concerned to determine the implications, if any, for this question, of the fact that individual Pitjantjatjaras could not invite or permit other persons to enter upon the land, because this power was reposed exclusively in the Executive Board created by the Act. His Honour's reasoning has nothing to do with the kind of "lifting of the veil" for which the Plaintiff contended in the present case. 72 In any event, the relationship between individual Pitjantjatjaras and the body corporate created by the Act is of such a special character as to bear no comparison with a commercial corporation such as the Plaintiff. This is manifest by s5 of the Act there under consideration, which provides: "5(1) There shall be a body corporate entitled 'Anangu Pitjantjatjaraku'. (2) All Pitjantjatjaras are members of Anangu Pitjantjatjaraku."

It was to this body that the Governor was empowered by s15 of the Act to grant the lands in fee simple. As Brennan J noted: "The grant of title to the lands to Anangu Pitjantjatjaraku, pursuant to s15 guarantees Pitjantjatjaras' collective ability 'to take up' or 'rebuild' their traditional relationship with their country. … Control of access by non-Pitjantjatjaras to the lands is ancillary to the enjoyment by Pitjantjatjaras of the rights over or in respect of the lands which the other provisions of the Land Rights Act confer on them. The legal title to the lands is vested in Anangu Pitjantjatjaraku but the traditional owners and, subject to their wishes and opinions, all other Pitjantjatjaras may use any part of the lands without interference from non- Pitjantjatjaras except for the classes specified in subss (8) and (11) of s19. True it is that s19, in requiring a non-Pitjantjatjara to apply to Anangu Pitjantjaraku or a delegate for permission to enter and in requiring the permission to be written, precludes, perhaps harshly, an individual Pitjantjatjara from inviting a non- Pitjantjatjara onto the land. Individual convenience has given way to group protection. It is clear, however, that the purpose of s19 is to control the access by non-Pitjantjatjaras to the land in order to secure the uninterrupted enjoyment by Pitjantjatjaras of the use and management of the lands which the Land Rights Act permit. Section 19 came into force before and operates irrespective of the vesting of the legal title in Anangu Pitjantjatjaraku. Nevertheless, the vesting of legal title in a Pitjantjatjara corporation for the benefit of Pitjantjatjaras was the chief purpose of the Act and it is artificial to regard section 19 as having a purpose or operation divorced from their use and management of the lands. The Land Rights Act does not purport to restore to the present generation of Pitjantjatjaras any legal rights which their forebears possessed; it is intended to provide the legal means by which present and future Pitjantjatjara generations may take up and rebuild their relationship with their country in accordance with tradition." (at 117) 73 Nothing in his Honour's reasons suggests then that any lifting of the corporate veil is appropriate with respect to s10 of the Racial Discrimination Act, in the circumstances of a commercial corporation such as the Plaintiff. 74 The second submission made on behalf of the Defendant with respect to this matter was that s10(1) was not applicable because the Native Title Act is a "special measure" within the meaning of Article 1(4) of the Convention and, accordingly, s8 of the Racial Discrimination Act operated to prevent the application of s10(1) of that Act. 75 In Western Australia v The Commonwealth ('Native Title Act case') (1995) 183 CLR 373, the High Court indicated, without needing to formally hold, that the Act could be regarded as a "special measure" (at 483-484). Furthermore, when considering the formulation of the race power in the Commonwealth Constitution, namely "for whom it has been necessary to make special laws", the High Court held: "… The Native Title Act is 'special' in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the 'people of any race') a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races." ( Native Title Act case at 462). 76 In Gerhardy v Brown, it was held that the Pitjantjatjara Land Rights Act was a "special measure" within Article 1(4) of the Convention. 77 In its submissions, the Plaintiff emphasised that the Native Title Act created permanent rights and, accordingly, that it could not fall within the concept of a "special measure" for purposes of the Convention by reason of the proviso to Article 1(4): "… provided, however, that such measures do not, as a consequence lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved." 78 The Plaintiff submits that the Native Title Act was not a "special measure" and sought to distinguish Gerhardy v Brown. Specifically, the Defendant referred to each of the four "indicia" set out in the judgment of Brennan J (at 132-141) and submitted they were not made out. However, his Honour did not intend the proposed "indicia" to constitute a gloss on the statutory text. In my opinion, the Native Title Act is not distinguishable from the Pitjantjatjara Land Rights Act considered by the High Court in Gerhardy v Brown, on any of the grounds submitted by the Plaintiff. 79 The submission, in effect, was that no legislation was capable of being a "special measure" unless it contained within itself some form of sunset clause. I do not agree. Legislation is frequently amended and repealed. At least when, at the time legislation is enacted, there is no obvious basis on which to fix a time, in advance, when the "objectives for which" the special measures "were taken" can be said to "have been achieved", then the failure to specify a termination date does not deprive the legislation of the quality of a "special measure". 80 Indeed, in Gerhardy v Brown the relevant provisions contained no sunset clause of any character. Nevertheless, the High Court held that the State legislation constituted a special measure for purposes of Article 1(4) of the Convention. The Court explicitly recognised that the achievement of the objectives of the legislation could mean that at some time in the future, it would no longer constitute a special measure (see at 88-89, 106, 108, 113, 140-141,154). 81 The Plaintiff also submitted that the Native Title Act could not answer the description of a "special measure", by reason of the fact that it could not be found to be "necessary in order to ensure" Aborigines "equal enjoyment or exercise of human rights and fundamental freedoms" within Article 1(4). To quote from the Plaintiff's written submissions, it said: "If, contrary to the Plaintiff's submissions the New South Wales legislature has the power to expropriate without just compensation, then the Native Title Act gives holders of native title a degree of protection that is not equal to that enjoyed by members of other races, but greater. Consequently this requirement is not satisfied."

The submissions also stated: "In reality, native title land is today the property least likely to be expropriated without compensation. Under Mabo 1 , so long as any other property holder in the State has a right to compensation, native title obtains that some protection through the operation of section 10. The achievement of equality, factual or legal, gains nothing from the added protections in the NTA . And unlike the position in Gerhardy , the special measure here adds nothing to the preservation of Aboriginal cultural society, or to the restoration of 'hearth, home, the source and locus of life, and everlastingness of spirit' (Brennan J, 159 CLR at 136). It simply reinforces the more than equal protection assured to native title since Mabo 1 , under which it receives, via section 10, the benefit of the best of all existing regimes of legal compensation. The Parliament could have no reasonable basis for deciding that a measure of this kind was necessary to ensure to the holders of native title enjoy, equally with others, their right to own property." 82 There is a substantial political overlay in this submission, from which I have found it difficult to discern a relevant legal proposition. However, it is possible to discern a logical flaw at its heart. 83 The submission appears to concentrate exclusively on one specific matter, namely compensation for the acquisition of property, and to say that any different treatment with respect to that matter, considered separately, cannot answer the description of a "special measure" in circumstances where there is not "equality" with respect to the enjoyment or exercise by others of that particular matter, considered separately. Nothing in the scope, purpose or terminology of Article 1(4) suggests that it should be given so pedantic a construction. 84 The reference to "equal enjoyment or exercise of human rights and fundamental freedoms" extends to the full gamut of issues that can arise under that composite phrase. A unique measure, involving affirmative action or positive discrimination with respect to one particular aspect of conduct, may be justified for the purposes of ensuring "equal enjoyment or exercise" of other kinds of human rights and fundamental freedoms. So, relevantly, special provision in relation to matters of property for a group which has been traditionally deprived in various respects, including economic respects, can be justified as a "special measure" to permit the enjoyment of rights and freedoms unrelated to economic considerations alone, let alone limited to considerations with respect to the acquisition of the property itself. 85 In my opinion, the Native Title Act is a "special measure" and, accordingly, s8 operates to deprive s10 of the Racial Discrimination Act of any relevant effect for purposes of this case.

Powers of the New South Wales Parliament 86 The Plaintiff contended that if s6 of the Act authorised subcl 22AA(3) of the Compensation Arrangements, then s6 is beyond the legislative power of the Parliament of New South Wales. This was based on the contention in par 20(b) of the Plaintiff's Amended Statement of Claim to the following effect: "The provisions of subsection 6(3) of the Act, to the extent that they purport to authorise an arrangement to the effect of subclause 22AA(3), are beyond the legislative power of New South Wales in that they purport to deprive named persons of their property without just, or any properly adequate, compensation." 87 The Defendant denies this paragraph and, in addition, says that the Court should refuse to grant any relief to the Plaintiff on the basis of the seven interim payments of compensation totalling more than $11 million made under the Compensation Arrangements as amended in 1990. Submissions were not, however, directed to this issue. 88 The matter before the Court turns on the Amended Agreed Facts as set out above. The basic allegation of the Plaintiff was that the cap for which subcl 22AA(3) provides, is not a "just", or "properly adequate", "compensation". This is an issue of fact. No paragraph of the Statement of Agreed Facts touches on it. Rather the Plaintiff seems to submit that any form of compensation not expressly related to the quantum of property of the character in question in these proceedings, must necessarily be other than "just" or "properly adequate". It is by no means clear to me that this is so. Other circumstances may be relevant. However, rather than determine the matter on this basis, it is desirable to deal with the Plaintiff's legal submissions on the assumption that its factual allegation is correct. 89 The basic submission was that contrary to the conventional wisdom as to the scope of the doctrine of parliamentary supremacy, the legislative power of the Parliament of New South Wales is restricted. The relevant restriction is that the Parliament may not "deprive known persons of their property without just, or any properly adequate, compensation". 90 By s5 of the Constitution Act 1902 (NSW): "5 The legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act , have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever …" 91 Of such a provision, the High Court has said: "… a power to make laws for the peace, order and good government of a Territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words 'for the peace, order and good government' are not words of limitation. They did not confer on the courts of the colony, just as they do not confer on the courts of the State, jurisdiction to strike down legislation on the ground that in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in out democratic system of government and the common law ( Drivers v Road Carriers (1982) 1 NZLR 374 at 390; Frazer v State Services Commission (1984) 1 NZLR 116 at 121; Taylor v New Zealand Poultry Board (1984) 1 NZLR 394 at 398), a view which Lord Reid firmly rejected in Pickin v British Railways Board (1974) AC 765 at 782, is another question which we need not explore." ( Union Steamship Co of Australia Pty Limited v King (1988) 166 CLR 1 at 10). 92 The issue posed for our consideration in this case is whether or not the right to receive "just" or "properly adequate" compensation is such a "deeply rooted right" as to operate as a restraint on the legislative power of the Parliaments of the States. 93 In Pye v Renshaw (1951) 84 CLR 58, in a joint judgment, five members of the High Court said: "If a State Act provides for the resumption of land on terms which are thought not to be just, that is of no consequence legally: it cannot affect in any way the validity of the Act or of what is done under the Act and the effect of Act No 14 of 1950 is to make it perfectly clear that all relevant legislation of the Parliament of New South Wales is intended to take effect unconditioned by any Commonwealth legislation and irrespective of the existence of any agreement between the Commonwealth and the State of New South Wales … There is no possible ground of attack on the validity of this legislation, there is no ground whatever for saying that it is inoperative, and all courts are bound to give effect to it according to its tenor." (at 79-80) 94 The Plaintiff referred to the following sentence in the judgment in support of the proposition that the above passage in the joint judgment of the High Court was obiter dicta. Immediately after the above quoted passage, the Court said: "Counsel for the Plaintiff did not indeed profess to attack the validity or efficacy of any State legislation." 95 Pye v Renshaw involved a challenge to the validity of a Commonwealth State arrangement for the acquisition of land. An earlier version of this arrangement had been struck down by the High Court in P J Magennis Pty Limited v The Commonwealth (1949) 80 CLR 382 on the basis that it constituted an acquisition by the Commonwealth on other that just terms, contrary to the requirements of s51(xxxi) of the Commonwealth Constitution. 96 In Pye v Renshaw, the joint judgment referred to the effect of the decision in the Magennis case, and quoted with approval a passage from the judgment of Latham CJ in that case in the following way: "The position thus reached could not, of course, affect the validity of any State legislation authorising the acquisition of land, because State powers are in no way affected by s51(31). As Latham CJ said ( Magennis at 405): 'There is no doubt as to the power of the State Parliament to provide for compensation for land resumed upon any basis which it thinks proper.' " (at 78-79) 97 The Court explained that the effect of Magennis was that the State Act was treated as "inoperative" because there was no agreement binding on the Commonwealth, and accordingly nothing upon which the State Act could operate. The issue in Pye v Renshaw arose because the New South Wales Parliament repealed the Act which had been found to be "inoperative" in Magennis. The State Act no longer turned on the existence of a valid agreement with the Commonwealth, as the assumed basis for any acquisition of property under the State Act. The issue in Pye v Renshaw was whether or not the State was using the power of resumption for a purpose for which the power had been given by the State Act or, as the Plaintiff submitted, it was in fact being used for an improper purpose of carrying into effect the Commonwealth scheme. 98 On this basis, the above passage in Pye v Renshaw was not a necessary step in the reasoning of the High Court's decision. Nevertheless, this Court should follow such a clear statement of principle in a unanimous judgment of the High Court that has never been doubted. 99 Indeed, in another joint judgment in Minister for Lands (NSW) v Pye (1951-52) 87 CLR 469, the High Court said, again obiter: "… the legislative power of the Commonwealth with respect to the acquisition of property for Commonwealth purposes is limited by the constitutional requirement of just terms. There is no similar limitation upon the legislative power of the State of New South Wales. The Parliament of the State, if its sense of justice allows it to do so, can authorise people's property to be taken or their services to be conscripted without just recompense, or indeed without any recompense at all." (at 486) 100 The issue arose directly in Mabo v Queensland (1986) 166 CLR 186. In that case, the submission that the Queensland Parliament did not have the power to deprive a person of property rights without compensation was expressly put to the Court as a ground for the invalidity of the Queensland legislation which purported to extinguish native title rights. That submission was rejected by the Court (at 202 per Wilson J, with whom Mason CJ at 195 and Dawson J at 241, agreed; at 213 per Brennan, Toohey and Gaudron JJ; and at 224 per Deane J). This constituted part of the reasoning of the Court and cannot be dismissed as mere obiter dicta. 101 The position is, in my opinion, put beyond doubt by the decision of the High Court in Teori Tau v The Commonwealth (1969) 119 CLR 564. In that case the Court had before it an acquisition in an external Territory made on other than just terms. The issue before the Court concerned the Territories power in s122 of the Commonwealth Constitution. The Court was concerned to determine whether this power, like the powers found in s51 of the Constitution, had had abstracted from them a power to make laws for the acquisition of property, by reason of the provision in s51(xxxi), such that acquisition of property could only be effected by the Commonwealth on just terms. The Court in an unanimous judgment of a seven person bench, said: "In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called Federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth Territories in respect of which there is no such division of legislative powers. The grant of legislative powers by s122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s51(xxxi) or, for that matter, by any other paragraph of that section. While the Constitution must be read as a whole and as a consequence, s122 be subject to other appropriate provisions of it as, for example, s116, we have no doubt whatever that the power to make laws providing for the acquisition of property in the Territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition." (at 570) 102 In my opinion, an acquisition under the authority of a statute of a State Parliament is in the same position as an acquisition by statute under the Territories power of the Commonwealth Constitution. Teori Tau cannot be distinguished. It is binding on this Court and should be applied. 103 In Newcrest Mining (WA) Limited v The Commonwealth (1996-97) 190 CLR 513, the authority of Teori Tau was challenged and, by majority, affirmed. Even the reasoning of the minority would be of no assistance to the Plaintiff in the present case. The issue turned on whether or not the restriction in s51(xxxi) should be applied to laws passed in reliance upon s122. (See Gaudron J at 565; Gummow J at 614; and Kirby J at 652-657.) This analysis turned on the construction of the Commonwealth Constitution, and is of no avail to the Plaintiff with respect to a State power. 104 It appears that, in the early years of independence, State courts in the United States did develop a doctrine which denied a legislative power to acquire property without compensation. (See the cases referred to by Professor Sherry in a number of articles: "The Founders Unwritten Constitution" (1987) 54 University of Chicago Law Review 1127 at 1142; "The Ninth Amendment: Righting an Unwritten Constitution" (1988) Chicago-Kent Law Review 1001 at 1005-1006; "Natural Law in the States" (1992) 61 Cincinati Law Review 171 at 193-194, 204-207; "Independent Judges and Independent Justice" (1998) 61 Law and Contemporary Problems 15 at 16-18). 105 The Plaintiff was unable to point to any judicial pronouncements, let alone a decided case, which indicated, at any time, that any such principle existed in the common law of England, or of the Colonies of Australasia, or of Australia. It advocated the development of the common law, by the recognition of such a principle for the first time in this case. Even if it were open, which I do not believe it is, to this Court to develop the common law in this way, it should be slow to do so. 106 A reason for the courts not disturbing a principle which has been so well established in Australian constitutional law for so many years, is that in 1988, the people of Australia were asked to vote at a referendum on a proposal to alter the Constitution by introducing a new s115A as follows: "115A A law of a State may not provide for the acquisition of property from any person except on just terms." 107 This proposal was defeated at the referendum, albeit as one of four amendments put as a single question. The courts should not change the constitutional law of the States in a manner which the people of the States have so recently rejected.

Conclusion 108 The proceedings should be dismissed with costs.

110 GILES JA: I agree with Spigelman CJ. **********

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