The significance of s 24IC(2) and s 24IC(2A)
135 The applicant placed considerable weight on an argument based on the similarity in wording between s 24IC(1)(a) and s 26D(1)(a), the legislative history of those provisions, and the lack of anything in s 26D that corresponds with s 24IC(2) or s 24IC(2A). All those provisions are set out above. To recap, the point is that both s 24IC(1)(a) and s 26D(1)(a) refer to:
(i) the renewal; or
(ii) the re-grant or re-making; or
(iii) the extension of the term …
of a previous instrument such as a 'lease, licence, permit or authority' (s 24IC) or a 'right to mine' (s 26D). But s 24IC(2) and s 24IC(2A) expressly provide for splits or consolidations as between the original and subsequent instruments, while s 26D does not.
136 From this the applicant seeks to draw at least two inferences:
(a) the fact that the legislature saw a need to make express provision for splits and consolidations in s 24IC shows that, without that express provision, the wording of s 24IC(1)(a) would not accommodate them, from which it follows that the similar wording of s 26D(1)(a) also does not accommodate them; and
(b) it can be inferred from the decision to make that express provision in s 24IC but not in s 26D that the legislature intended for the former section to encompass splits and consolidations and intended for the latter section not to do so.
137 The applicant also makes the same point by reference to the history of the provisions. It submits that the introduction of s 24IC(2A) in 2007 indicates that the legislature considered that without that provision, s 24IC(1) would not provide for the consolidation of multiple leases etc., and that the amendment would have been unnecessary if s 24IC(1) did provide for it. No similar amendment was made to s 26D.
138 All this is reasoning by inference. The applicant puts an inference that, because Parliament saw a need to insert the deeming provisions in s 24IC, splits and consolidations would not have come within the section if those provisions were absent. The applicant also puts an inference that, because Parliament expressly provided for splits and consolidations in one place, the omission of a similar provision in another, comparable place was deliberate (this is essentially the principle of expressio unius est exclusio alterius, though the applicant did not put it in those terms).
139 I accept that those inferences are open. The task of statutory interpretation is to discover the intention of 'a notional person', a Parliament, with its intentions, objects, purposes and designs attributed from context: "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have"': Harvey HC at [107] (Edelman J) quoting from Project Blue Sky at [78]. If qualities such as omniscience, absolute thoroughness, rigorous consistency and logical infallibility are attributed to that notional person, then the inferences may be strong.
140 But that is not what the process of statutory interpretation requires. Reality is permitted to intrude. That is certainly so with legislation as cumbersome, labyrinthine and frequently amended as the NTA. In Australian Rail Track Corp Ltd v Dollisson [2020] NSWCA 58 at [47]-[48] Bell ACJ (Macfarlan JA agreeing) said of different legislation (the Accident Compensation Act 1985 (Vic) or ACA):
Expressio unius reasoning of the kind sought to be invoked by ARTC attributes a rigorous linguistic logic and consistency to the author of the statute or instrument under consideration. Such characteristics, whilst not unattainable, are far from inevitable, especially when the authorship of a frequently amended statute undoubtedly changes over time and where it may be that amendments to existing Acts or the passage of new bills are subject to last minute political debate and compromise cf. Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15]. 'Patchwork' statutes, to borrow Lord Hoffmann's language in National Grid Co plc v Mayes [2001] 1 WLR 864 at [55] (Mayes), rarely contain the linguistic logic and consistency upon which the expressio unius maxim depends for it to operate as a useful construction tool. His Lordship described such arguments as 'often perilous': Mayes at [55].
In this regard, the ACA is a statute that has, as has been illustrated, grown 'like topsy', coinciding with changes of government and changes of policy in Victoria in relation to the ambit and quantum of benefits available to injured workers. The amendments made to the ACA since the 1990s have been extensive and often of byzantine complexity.
141 'The need for caution in the application of the expressio unius rule has often been remarked upon': O'Sullivan v Farrer (1989) 168 CLR 210 at 215 (Mason CJ, Brennan, Dawson and Gaudron JJ). In this case, it would be unwise to place too much store on canons of construction or any similar inference that attribute to the notional person of Parliament the often fictional qualities mentioned above. There are many reasons for that: the frequency of amendment of the NTA over time; the byzantine complexity of Pt 2 Div 3; the variety of future acts covered by the Division; and the palpable air of political compromise that permeates it.
142 That is especially so where, as here, there is no evident purpose or policy that would be served by facilitating splits and consolidations in one place and not in another: see Esso Australia at [71] quoted at [78] above. There is no apparent reason why the purpose and policy of the NTA, or any part of it, would be served by doing both of the following things:
(a) permitting a number of 'original lease[s] etc.' under s 24IC to be consolidated into one (with the same term, total area and accompanying rights), which becomes a 'permissible lease etc. renewal' and so potentially valid under Subdiv I; and
(b) providing that the consolidation of a number of mining leases, say, into one mining lease (with the same term, total area and accompanying rights) will trigger the right to negotiate, when renewing those leases without consolidation will not.
143 In all its submissions, the applicant was unable to point to a reason why this should be so. The closest it got was when, in oral submissions, counsel for the applicant said that the scheme of the NTA was, in effect, to extend 'a certain level of grace' to acts done pre-Wik, which was not necessarily extended to post-Wik acts. But that does not explain why consolidations and splits would be treated differently as between s 24IC and s 26D, as both potentially encompass acts that trace their 'root of title' (in AngloGold's phrase) to pre-Wik acts: s 24IC(b)(i) and s 26D(1)(b)(i).
144 The problem becomes even more acute when one considers the potential interaction between s 24IC and s 26D in connection with particular instruments. Suppose a future act consists of the grant by the State of a consolidated mining lease in the place of two previous mining leases which covered the same area and which were granted before the date of the Wik decision. The future act will comply with the conditions at s 24IC(b) to (e) and, by virtue of s 24IC(2A), will also clearly comply with s 24IC(1)(a). The act will therefore be valid, subject to Subdiv P. Because the act creates a right to mine, Subdiv P will apply to it: s 26(1A). And yet, on the applicant's construction, despite being treated as the renewal of the earlier leases for the purposes of Subdiv I, the consolidated lease will be treated as if it were not a renewal of them for the purposes of Subdiv P. The right to negotiate will be triggered, even though, in substance, the mining tenement granted by the future act is the same as the two pre-Wik tenements.
145 In that case, not only would Parliament be facilitating consolidations in one place and not in another, it would be approaching the question differently at different points in the analysis of the same future act. The applicant has identified no plausible rationale as to why the NTA would recognise continuity of tenure for the purpose of setting the precondition for validity in Subdiv I, which is subject to Subdiv P, and yet not recognise that continuity in the application of Subdiv P itself.
146 One way of reconciling s 24IC and s 26D, suggested by the State, may be discarded immediately. The State submitted that s 24IC(2) and s 24IC(2A) may be read as applying directly to s 26D. I do not see how that can be so. As the applicant pointed out, each of the subsections says in terms that it operates for the purposes of s 24IC(1). It is impossible to somehow read them in to s 26D as well.
147 There is a more promising way of explaining the difference between the provisions, and why Parliament included s 24IC(2) and s 24IC(2A). It emerges after it is remembered that, while s 24IC and s 26D can both apply in a particular situation, they have different places in the statutory scheme, and do different things. Section 24IC, and Subdiv I generally, are part of the cascading hierarchy of categories of future acts that may be valid. Subdivision P is not part of that hierarchy. It provides for a further requirement - the right to negotiate - in relation to certain acts that may be valid under that cascading hierarchy, and stipulates when that requirement does and does not apply.
148 Further, it is important to recall that s 24IC applies to a much wider range of acts than s 26D. Section 26D applies to mining tenements and, as various as they may be, they are a discrete class of instrument with well-understood characteristics. As already outlined, there is no difficulty in applying s 23(b) of the Interpretation Act to them. Section 24IC, in contrast, applies to a 'lease, licence, permit or authority'.
149 As the State points out, s 24IC thus would, for example, provide for the valid renewal of a wide range of interests and rights, including a fishing licence or a pastoral lease, none of which have any intersection with s 26D. In view of that, the drafters of Pt 2 Div 3, conscious of its much broader potential application compared to s 26D, could well seek to make it clear for the avoidance of doubt that the grant of multiple leases, licences, permits or authorities in the place of a single lease, licence, permit or authority (and vice versa) will not result in invalidity. Sections 24IC(2) and (2A) therefore have utility. In relation to the narrower class of instruments covered by s 26D, however, the drafters may well have been content to rely on the Interpretation Act.
150 In my view, the legislative history of the relevant provisions does not add much to the analysis. Both Subdiv I containing s 24IC and Subdiv P containing s 26D were introduced in the Native Title Amendment Act 1998 (Cth), which was passed to take account of what the government of the day perceived to be consequences of the Wik decision. Before that amending legislation was passed, the right to negotiate applied to a wider category of 'permissible future act', including the creation of a right to mine, the variation of such a right to extend the area to which it related, and the extension of the period for which it had effect (other than under an option or right of extension or renewal inherent in the instrument that created the right to mine): ss 26(1) and (2) of the NTA as it stood before it was amended by the Native Title Amendment Act 1998. Relevantly, acts that renewed rights created before 1 January 1994 were excluded from these provisions.
151 After the changes in the Native Title Amendment Act 1998 came into force, the much more intricate regime that has been described above applied. Section 24IC(2) was introduced as part of the Act. The extrinsic material sheds no light on why it was introduced, with the EM merely describing the effect of the subsection. The inference that it was because of the need to avoid doubt in connection with the wide variety of things covered by s 24IC remains open.
152 Section 24IC(2A) was introduced some 10 years later, in 2007, in the Native Title Amendment (Technical Amendments) Act 2007 (Cth). The title of that Act is self-explanatory. It is easy to see why the Parliament, some 10 years after it had included a provision deeming splits of leases, licences, permits and authorities to be renewals of those things would see, as a desirable technical amendment, a provision making it clear that the converse situation, a consolidation, would also be a renewal. The expressio unius inference would otherwise be strong within s 24IC itself. But as to why no provisions similar to s 24IC(2) and s 24IC(2A) were included in s 26D, the history provides no clue.
153 The explanation I have posited above is not contradicted by the text or context of the relevant provisions. No more plausible explanation has been advanced. The inquiry is not, of course, a forensic one as to why, as a matter of fact, the legislation is how it is. It is part of the process of attributing an intention to the notional person that is the Parliament. In my view, this explanation is sufficient to displace the inferences that the applicant seeks to make on the basis of ss 24IC(2) and (2A), which were already weak given the complicated nature of the NTA and the lack of any apparent purpose that would be served by reading the legislation that way. As 'deliberately structured' as Pt 2 Div 3 is (see Harris at [37] above), it is unlikely that the inferences the applicant puts are a deliberate feature of that structure.
154 On the contrary, reading both s 24IC and s 26D to permit of splits and consolidations in relevant leases etc. or rights to mine gives the Division a harmonious operation in the context of the statutory scheme as a whole. It prioritises substance over form, it avoids the need for distinctions that make no real difference - distinctions that might otherwise need to be drawn at different stages in relation to the same act - and it promotes the purpose of s 26D(1) that emerges from the text of the provision itself.