Sole purpose of constructing an infrastructure facility
135 Two questions arise on the appeal: whether the DSEA to be constructed pursuant to ML 29881 would be an infrastructure facility within the meaning of the NTA and whether the sole purpose of the rights conferred by ML 29881 is the construction of the DSEA. The respondents do not dispute that the DSEA is associated with mining.
136 It is convenient to address the second question first as it admits of a short answer. Mount Isa Mines advanced an argument that ML 29881 did not satisfy s 24MD(6B)(b) because the sole purpose of ML 29881 is not to construct the DSEA but to operate the DSEA in order to undertake dredging. That argument should be rejected as it is contradicted by the evidence. The Summary of Proposed Works which formed part of the application for ML 29881 stated that the capacity of the existing spoil area (within MLN 1126) had been reached and "an additional dredge spoil area needs to be constructed". The Summary stated that the proposed works would "include the construction of a new dredge spoil area similar in size and design to the existing spoil area and will include engineered internal and external walls and internal and external drains to carry sea water to the existing drainage channel and back out to sea". It is clear from the application that the purpose of the proposed mineral lease is to construct the DSEA. As submitted by the appellants, the fact that a facility constructed pursuant to a mineral lease will then be used and operated is not inconsistent with the conclusion that the sole purpose of the mineral lease is the construction of the facility. A contrary conclusion would render s 24MD(6B)(b) inutile, as the mining industry would not seek a mineral lease to construct a facility that is not intended for use.
137 The more difficult question is whether the DSEA to be constructed pursuant to ML 29881 would be an infrastructure facility within the meaning of the NTA. The difficulty arises from the form of the definition of "infrastructure facility" in s 253 of the NTA, which is expressed to include "any of the following" things listed in paras (a) to (i) of the definition, and where (i) is "any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purposes of this paragraph". The appeal raises the question whether the definition is intended to be inclusive, such that the statutory phrase "infrastructure facility" will encompass things within the ordinary meaning of that phrase, or whether the definition is intended to be exhaustive. The difficulties in interpreting a definition in this form is discussed by Prof Pearce in Statutory Interpretation in Australia (LexisNexis Butterworths, 9th Ed, 2019), where he observes (at [6.7]):
… The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word.
…
Unfortunately, this neat distinction has not always been adhered to by either drafters or judges. Particular confusion has arisen where the word 'includes' has been used in a definition and then one or more items that would usually fall within the accepted meaning of the word have been specified together with some items that would not. The problem that then arises is whether the definition, notwithstanding the use of the word 'includes', is intended to be exhaustive. …
138 The ordinary meaning of the word "includes" is that the object of the clause is part of the subject; for that reason, the use of the word "includes" in a statutory definition ordinarily indicates that the definition is not intended to be exhaustive. In approaching such a definition, it is reasonable to start with the presumption that the word "includes" takes it ordinary meaning. As observed by Lord Selborne LC in Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 at 801:
An interpretation clause of this kind [ie, one which uses the word 'includes'] is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.
139 However, a number of cases illustrate circumstances in which contrary indications may arise from the statutory text, context and purpose. As explained by Lord Watson in Dilworth v Stamps Commissioner [1899] AC 99 at 106:
… the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expression defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.
140 In YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395 (YZ Finance), the High Court considered whether a promissory note fell within the definition of "security" in s 24 of the Moneylenders and Infants Loans Act 1941 (NSW), which provided that "'security' includes bill of sale, mortgage, lien and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan". It was accepted that if "security" were to be given its ordinary meaning, then the promissory note would fall within the definition. Justices McTiernan, Kitto, Taylor and Windeyer concluded that the list of matters in the definition was intended to be exhaustive, notwithstanding the use of the word "includes", principally because each of the enumerated items were within the ordinary meaning of the word "security", thus indicating a legislative intention to define the term exhaustively (McTiernan J at 399, and Taylor and Windeyer JJ agreeing at 404 and 406 respectively, and Kitto J at 403). Justice Kitto discerned a drafting pattern by which the word "means" was used where the purpose was to impose upon an expression an artificial meaning to the exclusion of any other, while the word "includes" was used where the purpose was to choose one out of two or more otherwise possible meanings by specifying the intended coverage (at 404).
141 A contrary conclusion was reached in R v McN [1963] SR (NSW) 186 where the New South Wales Court of Criminal Appeal considered the following definition of "vehicle" in the Crimes Act 1900 (NSW): "vehicle" includes any cart, wagon, cab, carriage, aeroplane or other aircraft, motor car, caravan trailer, motor lorry, motor or other bicycle. Unlike the definition under consideration in YZ Finance, in which all of the items listed fell within the ordinary meaning of the definition of "security", the items listed within the definition of "vehicles" included items that would not normally fall within the ordinary meaning of that word. Herron CJ and Manning J concluded that the definition was not exhaustive (while Brereton J considered that it was). Taking into consideration "the nature of the legislation, the language used, the evil sought to be remedied and the nature of the offences specified", their Honours found that the word "includes" was "capable of being read literally, and the circumstances do not justify it being read in any other way" (at 188).
142 The definition of "infrastructure facility" in s 253 of the NTA was considered by the Full Federal Court in Slipper. The case concerned the proposed compulsory acquisition of land in South Australia by the Commonwealth for the purpose of establishing a national repository for the disposal of radioactive waste under the Lands Acquisition Act 1989 (Cth) (Lands Acquisition Act). The case raised a number of issues. South Australia was successful in the appeal on the basis that the Commonwealth Minister exercised power under s 24(1) of the Lands Acquisition Act for an improper purpose and obtained orders quashing various decisions of the Commonwealth (at [70] per Branson J, with whom Finn and Finkelstein JJ agreed). Nevertheless, Branson J went on to consider a number of other issues raised on the appeal, including the question whether the proposed national radioactive waste repository was an infrastructure facility within the meaning of s 253 of the NTA. Her Honour concluded that it was not (at [85]), reasoning as follows:
80 The Oxford English Dictionary defines "infrastructure" as follows:
A collective term for the subordinate parts of an undertaking; substructure, foundation; spec. the permanent installations forming a basis for military operations, as airfields, naval bases, training establishments etc.
81 The Macquarie Dictionary contains the following, it would seem wider, definitions:
1. the basic framework or underlying foundation (as of an organisation or a system) 2. the roads, railways, schools, and other capital equipment which comprise such an underlying system within a country or region. 3. the buildings or permanent installations associated with any organisation, operation etc.
82 If the drafter of s 253 proceeded on the basis that the ordinary meaning of the word "infrastructure" was the meaning indicated by the Oxford English Dictionary, the reason for expanding that meaning of the expression "infrastructure facility" for the purpose of the Lands Acquisition Act is readily identified. The ordinary meaning would be too narrow to achieve the purpose behind the exclusion from Subdiv P of compulsory acquisition of native title rights and interests where the purpose of the acquisition is to provide an infrastructure facility. The purpose behind the exclusion may be presumed to be to exclude the right to negotiate where the acquisition is to provide a facility for the economic benefit of the nation or a region of the nation.
83 However, if the drafter of s 253 proceeded on the basis that the ordinary meaning of the term "infrastructure" was the wider meaning reflected in the second Macquarie Dictionary definition, nothing would seem to be achieved by the provisions of s 253 touching on the meaning of "infrastructure facility". In particular, para (i) would, on this assumption, appear to be unnecessary as any thing "similar to any or all of the things mentioned in paragraphs (a) to (h)" would almost certainly fall within the ordinary meaning of the words "infrastructure facility".
84 Although the issue is not, as it seems to me, free from doubt, I conclude that the better view is that the Native Title Act has been drafted on the basis that the ordinary meaning of the words "infrastructure facility" is relatively narrow. It is, I consider, in accordance with ordinary usage for "infrastructure facility" to be used to describe a subordinate part of a particular undertaking or a facility intended to serve or support a particular undertaking. If this view is the correct view, a national radioactive waste repository not designed as a subordinate part of any particular undertaking or facility would not be an "infrastructure facility".
143 Each of Finn J (at [88]) and Finkelstein J (at [148]) agreed with Branson J on that issue.
144 While the Full Court's consideration of the definition of "infrastructure facility" was obiter, it was considered reasoning and therefore should be accorded considerable weight: Port of Newcastle v Australian Competition Tribunal [2017] FCAFC 124; 253 FCR 115 at [111]. However, it does not appear from the reasons that any party in Slipper advanced the contention that the definition is exhaustive, rather than inclusive, and the Full Court's reasons do not advert to that possibility. That is the contention advanced in this appeal. It is therefore necessary to consider the reasons in Slipper in conjunction with the arguments advanced by the parties in this appeal.
145 The use of the word "includes" in the definition of "infrastructure facility" in s 253 is a strong indicator that the definition is intended to be non-exhaustive. It should also be noted that each of the words "means" and "includes" is used in other definitions in s 253 of the NTA in accordance with the orthodox usage of those terms as explained by Prof Pearce. By way of example, and as discussed above, it was common ground that the definition of "mine" in s 253 of the NTA is intended to be a non-exhaustive definition. There is a statutory presumption that words in legislation are used consistently: Franzon at 618 per Mason J. However, this presumption is readily rebuttable if the context compels a different construction: Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579 at 590 per Higgins J; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643 per Gibbs ACJ. Further, the presumption is less strong in respect of words within large and frequently amended statutes: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; 197 FCR 374 at [35] per Murphy J. In this case, the presumption that the word "includes" is used consistently in s 253 is weakened by the fact that the definition of "infrastructure facility" was inserted into the NTA by the 1998 amendments, whereas most of the other definitions, such as "mine", were part of the NTA from its inception.
146 Accepting that the use of the word "includes" is a strong indicator that the definition of "infrastructure facility" is intended to be non-exhaustive, it is necessary to consider whether contrary indications arise from the statutory text, context and purpose. In this case, there are a number of strong indicators in favour of an exhaustive construction of the definition.
147 First, each of the things enumerated in paras (a) to (h) of the definition appears to fall within the ordinary meaning of the phrase "infrastructure facility". As observed by Branson J in Slipper, the definition of "infrastructure" given by the Oxford Dictionary is narrow in comparison to the Macquarie Dictionary. In our view, the latter definition reflects ordinary usage in Australia. That definition is:
1. the basic framework or underlying foundation (as of an organisation or a system)
2. the roads, railways, schools, and other capital equipment which comprise such an underlying system within a country or region.
3. the buildings or permanent installations associated with any organisation, operation etc.
148 This suggests, as was the case in YZ Finance, that the legislature sought not to expand the ordinary meaning of the term, but to provide an exhaustive explanation of its meaning for the purpose of the Act.
149 Second, the highly specific nature of some of the types of "infrastructure facilities" enumerated in the definition appear to qualify the ordinary meaning of the phrase. By including specific qualifying words within those categories, for example by specifying "a storage or transportation facility for coal, any other mineral or any mineral concentrate" (para (g)), the legislation affords a strong indication that any other kind of storage or transportation facility is to be excluded from the statutory meaning of the phrase. It is difficult to reconcile this drafting style with a non-exhaustive understanding of the definition, which would mean, for instance, that other kinds of storage or transportation facilities might still be covered by the definition because they fall within the ordinary meaning of the term.
150 Third, para (i) empowers the Minister to determine, by legislative instrument, that "any other thing that is similar to any or all of the things mentioned in paras (a) to (h)" is an infrastructure facility for the purpose of the definition. It is significant that the Minister's power is constrained to expanding the list only in respect of things that are similar to the things in paras (a) to (h). If the definition were intended to be inclusive, para (i) would be unnecessary. As the things mentioned in paras (a) to (h) fall within the ordinary meaning of the phrase "infrastructure facility", anything similar to those things would also fall within the ordinary meaning of the phrase (as observed by Branson J in Slipper). The inclusion of para (i) affords a strong indication that the definition is intended to be exhaustive, and the Minister is empowered to expand the list but only in respect of "similar things".
151 Fourth, although perhaps a lesser indicator, the use of the phrase "includes any of the following" is consistent with a legislative intention to enumerate an exhaustive list.
152 Fifth, there is a discernible statutory purpose for limiting the definition to the enumerated things. The phrase "infrastructure facility" was introduced into the NTA with the 1998 amendments and is used in only three operative provisions: ss 24MD(6B)(b), 26(1)(c)(i) and 26(1)(c)(iii). In ss 26(1)(c)(i) and 26(1)(c)(iii), the phrase is used in a provision that excludes the right to negotiate from two categories of future act. In s 26(1)(c)(i), the creation of a right to mine is a future act to which the right to negotiate applies, but not if it is for the sole purpose of the construction of an infrastructure facility. Similarly, in s 26(1)(c)(iii), the compulsory acquisition of native title rights and interests is a future act to which the right to negotiate applies, but not if the purpose of the acquisition is to provide an infrastructure facility. Future acts in those excluded categories are addressed in s 24MD(6B), with paragraph (a) applying to compulsory acquisitions of the requisite kind (through the operation of s 24MD(6)(a)) and paragraph (b) applying to rights to mine of the requisite kind. As explained in the 1997 Supplementary EM, the foregoing provisions were enacted because the Government considered that it was not appropriate to subject future acts of that kind to the right to negotiate, being the provision of infrastructure, such as roads, gas pipelines and the like, as such infrastructure was increasingly being provided by non-Government entities, especially in remote and regional Australia. Having regard to that statutory context and purpose, it is understandable that Parliament defined the categories of infrastructure facility to be excluded from the right to negotiate in exhaustive terms.
153 Against those textual and contextual indications in favour of an exhaustive meaning, the appellants placed reliance on statements in the 1997 EM that the term "infrastructure facility" has its ordinary meaning, but also includes a number of listed facilities, and that, within its ordinary meaning, an infrastructure facility is a facility (generally a fixture) necessary for the provision of services or to support the development and operation of major developments (at [19.7]-[19.8]).
154 The meaning of the definition of "infrastructure facility" is ambiguous, which permits recourse to the 1997 EM as an aid to construction: s 15AB(1) of the Acts Interpretation Act. However, statements made in an explanatory memorandum or in the course of a second reading speech have never been regarded as determinative of the legal meaning of statutory enactments: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. While statements explaining the background to the enactment, the mischief being addressed and the legislative purpose will usually inform the process of construction undertaken by the court, statements as to the legal meaning or effect of particular words of the enactment are usually given less weight in that process: see for example Nominal Defendant v GLG Aust Pty Ltd [2006] HCA 11; 228 CLR 529 at [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ and at [82] per Kirby J; Harrison v Melham [2008] NSWCA 67; 72 NSWLR 380 at [12] per Spigelman CJ and at [168]-[173] per Mason P (with whom Beazley and Giles JJA agreed).
155 In the present case, we consider that little weight should be accorded the statements in the 1997 EM in the construction of the phrase "infrastructure facility". The statements first appeared in the original explanatory memorandum released in respect of the 1997 Bill (No 1). Relevantly, that Bill differed from the 1998 amendments in a significant respect. In the proposed amended s 26, the infrastructure facility exclusion only applied to future acts that were compulsory acquisitions, not rights to mine. Thus, the work of the definition of "infrastructure facility" in that Bill was more limited than the final enactment. That remained the case in respect of the first version of the 1997 Bill (No 2) (and paras 19.7 and 19.8 of the explanatory memorandum in respect of that Bill were not altered). The 1997 Bill (No 2) was subsequently revised to apply the infrastructure facility exclusion to future acts that were rights to mine, and that change was referred to in the 1997 Supplementary EM. That document did not, though, refer to the definition of "infrastructure facility". The 1998 amendments were extensive and the legislative process was lengthy. In that context, statements that appeared in an early version of an explanatory memorandum expressing a conclusion as to the legal effect of a statutory definition, where the substantive provisions that deploy the definition are subsequently amended in a material way, cannot be given significant weight in ascertaining the meaning and effect of the resulting enactment.
156 The appellants also placed reliance on the difference in statutory drafting used in s 24KA(2), which was inserted into the NTA at the same time as the definition of "infrastructure facility" in s 253. Section 24KA concerns future acts that permit or require the construction, operation, use, maintenance or repair of any of the things listed in s 26KA(2), or consist of the construction, operation, use, maintenance or repair of any of those things by or on behalf of the Crown, or a local government body or other statutory authority of the Crown. There is considerable overlap between the list of things in s 26KA(2) and the things listed in the definition of "infrastructure facility" in s 253. The appellants drew attention to the chapeau to s 26KA(2) which states: "[f]or the purposes of paragraph (1)(b), the things are as follows". The appellants submitted that, by those words, the legislature clearly indicated that the list was exhaustive. So much may be accepted, but the statutory language used in s 24KA(2) provides little if any assistance in construing the definition of "infrastructure facility" in s 253. Section 24KA uses a different style of drafting. The legislature chose not to use a descriptive term, such as infrastructure facility, in the substantive provision and then define that term. Instead, the legislature chose to refer to a list of things in a different subsection. Further, at the conclusion of the list in para (m), the legislature included an omnibus category being "any other thing that is similar to any one or more of the things mentioned in the paragraphs above". It is not possible to draw any conclusions about the intended meaning of the definition of "infrastructure facility" in s 253 based on the different form of drafting used in s 24KA.
157 What emerges from an analysis of the statutory text, context and purpose are strong indications that the definition of "infrastructure facility" is an exhaustive definition. Although (like many questions of statutory construction) the question is arguable, the better view is that the use of the word "includes" in the definition of "infrastructure facility" indicates specific enumeration of the items covered by the definition, and the definition should be read as exhaustive. This conclusion involves something of a departure from the reasoning of the Full Court in Slipper. However, as noted earlier, the Full Court did not hear argument on the question raised by this appeal: whether the definition is exhaustive. We also note that the conclusion that the definition is exhaustive would not have altered the Full Court's finding in Slipper that the proposed national radioactive waste repository was not an infrastructure facility within the meaning of the NTA.
158 The appellants contend that the DSEA, proposed to be constructed pursuant to ML 29881, is an infrastructure facility within the meaning of paras (f) or (g) of the definition. We do not accept those contentions and agree with the primary judge that the DSEA does not meet the definition in para (f) or para (g) (PJ at [140]).
159 Paragraph (f) of the definition refers to a storage or transportation facility for coal, any other mineral or any mineral concentrate. The appellants argued that the primary judge's finding (at [96]) that the DSEA would "facilitate the transportation" of mineral concentrates supports the conclusion that it is a transportation facility. We do not accept that argument. In certain contexts, the noun "facility" can take the meaning of something that makes possible the easier performance of an action, being a meaning that is reflective of the verb "facilitate". However, in the context of the definition of "infrastructure facility", and in the phrase "storage or transportation facility", the word "facility" simply means a physical structure of some kind, whether a building or piece of equipment. The words "storage" and "transportation" describe the function or purpose of the physical structure. In the present case, the function or purpose of the DSEA is properly characterised as the storage of dredge spoil. As such, it is neither a storage facility for minerals or any mineral concentrate nor a transportation facility.
160 Paragraph (g) refers to a dam, pipeline, channel or other water management, distribution or reticulation facility. The appellants argued that the Summary of Proposed Works for ML 29881 refers to walls, drains and a channel "to carry sea water" and the Future Act Notice states that the particular infrastructure or activities ancillary to mining include "surface water management works to control the discharge of sea water run-off and sediment from the project site". On that basis, the appellants argued that the DSEA would be a water management facility within para (g). Again, we do not accept the appellants' argument. Paragraph (g) describes facilities the function or purpose of which is water management, distribution or reticulation (of which dams, pipelines and channels are the primary examples). That is not the function or purpose of the DSEA which, as already noted, is to store dredge spoil. The mere fact that the DSEA has a pipe or drain to enable the escape of excess sea water does not convert it into a water management, distribution or reticulation facility. As Mount Isa Mines submitted, even if the pipe or drain could itself be described as such, the construction of that pipe or drain is not the sole purpose of ML 29881.
161 It follows that the DSEA to be constructed pursuant to ML 29881 would not be an infrastructure facility within the meaning of the NTA.
162 Given our conclusion as to the proper construction of the definition of "infrastructure facility", it is unnecessary to determine whether the DSEA would be an infrastructure facility within the ordinary meaning of that term. Nevertheless, as the matter was fully argued, we will briefly express our conclusion that the DSEA would be an infrastructure facility within the ordinary meaning of the term. The mere fact that the DSEA is to be constructed from natural material does not prevent it from being a facility. The Summary of Proposed Works states that the DSEA will include engineered internal and external walls and internal and external drains. The function or purpose of the DSEA is to manage the relocation and deposition of dredge spoil. The evidence of Mr Rooney described the operation of Mount Isa Mine's current dredge spoil emplacement area on MLN 1126, and the primary judge found that that description broadly corresponded to the description of the proposed works set out in the Summary of Proposed Works. Mr Rooney's evidence was that the DSEA consists of ponds (commonly referred to as "cells") and a retention basin and that, as dredge spoil is deposited into the cells the silt within the dredge spoil begins to separate from the water and gravity is used to pass the dredge spoil between cells to drop out further silt and fine sediment from the water. This decantation of the water from the dredge spoil leaves a dry silt within the cells and supernatant water being released through the dredge spoil drain. The cells contain the residue dry silt and some of that dry silt is then pushed up and redeposited to be able to recreate the walls of each cell for subsequent lifts of the DSEA. The cell walls are created so that there is control of the deposition of the dredge spoil and the cells are monitored and maintained to ensure the operational integrity of the DSEA. In our view, the sophistication of the construction of the DSEA is sufficient to satisfy the requirements of being a facility. The function or purpose of the DSEA is to support the operation and functioning of the barge channel and thereby the Bing Bong Loading Facility. The DSEA is therefore an infrastructure facility (within the ordinary meaning of that term) within Mount Isa Mine's port operations.