The Appeals
24 Central to the phrase "mining operations" is the notion of the recovery of minerals: see Collector of Customs v BHP Australia Coal Limited (1994) 53 FCR 499; Federal Commissioner of Taxation v Broken Hill Proprietary Co Ltd (1969) 120 CLR 240; 120 CLR 267; The Commissioner of Taxation v ICI Australia Ltd (1972) 127 CLR 529. The phrase "as an integral part of the operations for their recovery", which qualifies the extended meaning given to "mining operations" in par (b) in that definition, underlines this. What one has regard to is the object of the operations undertaken: the end product: Broken Hill Co Ltd, 273, 274. Put another way, that is when the mining operation ends. So, in cases concerning the recovery of the mineral salt from brine pumped to the surface and subjected to evaporation, it has been held that mining operations were engaged in: ICI Australia, 557; Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108. The completion of recovery may be said to occur, and the mining operations conclude, when no further process is undertaken by the miner to separate the mineral from any material adhering to it or intermixed with it prior to sale: Abbott Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371, 380; Collector of Customs v BHP, 508; FCT v Broken Hill Co, 245. On the appeal from Kitto J in the last mentioned case, the Court expressed a reservation concerning work done subsequent to the winning of the mineral and as to whether it would come within the conception of "mining operations". The Court agreed with the broad view taken by his Honour of the words "mining operations" and that they referred to the separation of minerals from dirt and other material, but did not consider that they extended to the treatment of the mineral itself for the better utilisation of that mineral, for example, crushing bluestone for road making or turning brown coal into briquettes (272-274). That view has been subsequently reiterated.
25 The process of separation may however be a lengthy one and involve the application of forces or chemicals to recover the mineral, as the case referred to by Ryan J in David Mitchell illustrates (Chief Executive Officer of Customs v Tasmanian Electro Metallurgical Co Pty Ltd (1997) 76 FCR 476 (the 'Temco' case)). There Merkel J held that the recovery of a mineral can encompass not only the removal of impurities but also a chemical change and the introduction of additives: there sintering and smelting processes directed to the recovery of manganese, a mineral, within ore. In Dampier Salt, 116-7, it was held that the process of recovery continues until at least a saleable product emerges, but not necessarily upon the first production of a saleable product. That is to say, the focus is upon the desired end product.
26 Spender J in North Australian Cement Ltd v Federal Commissioner of Taxation (1989) 89 ATC 4765, held that the extraction of limestone for the purpose of the manufacture of cement was properly characterised as mining operations, limestone being a mineral. That might also be accepted for the purposes of the present case, although it does not assist the appellants, because of the exclusion of limestone from the definition of minerals. They go further, and point to calcite and lime occurring in the processes. In North Australian Cement, by comparison, the activity relied upon as mining operations involved the exploration for the deposit, determining its composition, planning its mining and carrying out what was for the most part extraction.
27 In the present case the end product sought is cement. The facts in David Mitchell are closer to those upon which the appellants would seek to rely, since the activities there concluded with lime as a product. The focus of that decision was upon whether lime could fall within the definition of "mineral", although Ryan J also expressed a view as to the question whether it could be said that recovery had taken place. It seems to us that the two questions overlap.
28 In our view it could not be said that in this case that lime was a "mineral" which was "recovered". Limestone is certainly recovered and the process which follows may be described as one of beneficiation of the limestone, but only as a part of a continuous process in the manufacture of cement. At the point of stockpiling of the blend prior to use, it was not suggested that a relevant mineral could be regarded as recovered and in a form to be saleable. The whole process undertaken is one which goes well beyond the removal of impurities to recover any mineral. Whilst the nature of the process applied in recovery will not always be conclusive of the question whether a mineral has been recovered, what is required is that the mineral be present when the material in which it is contained was taken from the earth, as Ryan J points out in David Mitchell. It is in that sense that one views a process or processes of recovery and what is said to be a "mineral": that which may be won by mining, albeit that other steps are necessary to render it useful or saleable. The fact that his Honour held limestone not to be an ore, which differs from the finding made here by the Tribunal, does not affect the approach otherwise taken. It is, in our view, highly artificial to speak of lime being "recovered" in a process such as this because it was possible to physically remove it. That is not and could not be undertaken in this process, the manufacture of cement.
29 On the view we have taken of the matter it is unnecessary to deal with the question whether the exclusion of "limestone" from the definition of "minerals" carries with it the exclusion of its constituents. Calcite is not the mineral mined or recovered. If that were the case we are however respectfully unable to agree with his Honour the primary Judge (with whom Ryan J agreed in David Mitchell) that any more was intended by the exclusion than a reference to limestone as such. An exclusion from beneficial legislation should not, in our view, be read widely unless it is clear that it was intended to incorporate more than is conveyed, namely the stated material. Calcite cannot, as a matter of language, be regarded as a derivative of the word limestone (as to which see Pearce, D. C., Statutory Interpretation in Australia, 4th ed. Sydney: Butterworths, 1996. [6.41]). The reference in the exclusion allowing for two constituents of clay should not be regarded as concluding the question whether the constituents of each of the materials there referred to were also to be taken as excluded, unless they were in turn excepted from it. At the most it creates an uncertainty. The extrinsic materials to which regard might then be had to resolve the question show that it was not intended to refuse rebate where a mineral within the stated minerals was sought to be recovered.