PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE

COUNSEL : Mr N Hutley SC / Mr G Moore Mr M Sexton SC / Mr I Mescher SOLICITORS : Brock Partners (Appellant) I V Knight (Respondent) CATCHWORDS : CONSTITUTIONAL LAW - Land tax - validity of State land tax over property - where property was previously a Commonwealth place - Commonwealth Constitution, s 52 - STATUTORY INTERPRETATION - Retrospective operation of taxation statute - where land tax Acts made effective by later Regulation - Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6. Acts Interpretation Act 1901 (Cth) AOTC Act 1991 (Cth) Commonwealth Constitution Commonwealth Places (Administration of Laws) Act 1970 Commonwealth Places (Application of Laws) Act 1970 (Cth) Commonwealth Places (Mirror Taxes Administration) Act 1998 Commonwealth Places (Mirror Taxes) Act 1998 (Cth) Heritage Building Protection Act 1990 (Qld) LEGISLATION CITED : Interpretation Act 1897 Interpretation Act 1987 Land Tax Act 1956 Land Tax Assessment Act 1910 (Cth) Land Tax Management (Amendment) Act 1991 Land Tax Management Act 1956 Local Government Act 1919 Queensland Heritage Act 1992 (Qld) State Revenue Legislation Amendment Act 1997 Attorney General (Qld) v Attorney General (Commonwealth) (1915) 20 CLR 148 Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 Bevelon Investments Pty Ltd v City of Melbourne (1976) 135 CLR 530 Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 Bropho v Western Australia (1990) 171 CLR 1 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 Carter v The Potato Marketing Board (1951) 84 CLR 460 Catlow v Accident Compensation Commission (1989) 167 CLR 543 Matadeen v Pointu [1999] 1 AC 98 Polyukhovich v The Commonwealth (1991) 172 CLR 501 CASES CITED: Queensland Heritage Council v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2001] 2 Qd R 504 R v Marshall; ex parte Baranor Nominees Pty Ltd [1986] VR 19 R v Young (1999) 46 NSWLR 681 Re Boulton; ex parte Beane (1987) 162 CLR 514 Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 Richardson v Austin (1911) 12 CLR 463 South Australia v The Commonwealth (1942) 65 CLR 373 State v Zuma (1995) 4 BCLR 401 Stock v Frank Jones (Tipton) Limited [1978] 1 WLR 231 The Queen v Phillips (1970) 125 CLR 93 Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40878/01

SPIGELMAN CJ STEIN JA HEYDON JA

Monday 11 November 2002 PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE

The Appellant Paliflex became the registered proprietor of 97 Elizabeth Bay Road ("the property") on 4 February 1998. The property, prior to that date, was owned by the Commonwealth. The Respondent objected to Notices of Assessment issued for land tax in the years 1999 and 2000 on the basis that the Land Tax Management Act 1956 ("the LTMA") and Land Tax Act 1956 ("the Rating Act") did not bind the property.

HELD (per Spigelman CJ, Stein and Heydon JJA agreeing) A The LTMA and Rating Act did not govern the land when enacted. The Acts were "with respect to… places acquired by the Commonwealth" within the meaning of s52 of the Constitution. To that extent they were within the Commonwealth's exclusive legislative power and invalid as State enactments.

Neither the ambulatory nature of the legislation nor s2 of the LTMA enabled the legislation to come into effect of its own force upon transfer of the land from the Commonwealth to the Respondent.

Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 applied. Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89, The Queen v Phillips (1970) 125 CLR 93, Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 and Queensland Heritage Council v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2001] 2 Qd R 504 referred to.

B Section 14(2) of the Commonwealth Places (Application of Laws) Act 1970 was itself a law with respect to Commonwealth places and invalid for the same reasons as LTMA and Rating Act were invalid.

Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 applied.

C The legislative scheme consisting of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), the Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW), the Commonwealth Places (Mirror Taxes) Regulations 2000 (Cth) and the "Arrangement between the Governor-General of the Commonwealth and the Governor of the State of New South Wales in relation to the application of State taxing laws in, or in relation to, Commonwealth places" was effective to retrospectively apply the relevant provisions of the land tax regime to the property. Upon transfer of the property, the relevant provisions, previously having force as enactments of the Commonwealth, operated of their own force and effect as State legislation. Accordingly, the Notices of Assessment for the land tax years 1999 and 2000 were valid.

ORDER Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40878/01

SPIGELMAN CJ STEIN JA HEYDON JA

Monday 11 November PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE Judgment 1 SPIGELMAN CJ: This appeal is concerned with the imposition of land tax on the Appellant as owner of property at 97 Elizabeth Bay Road, Elizabeth Bay, New South Wales ("the property"). 2 The Commonwealth of Australia acquired the property on 23 June 1922. It remained the registered proprietor until 3 February 1998. The Appellant entered into a contract to purchase the property on 5 September 1997. Settlement occurred on 30 January 1998. The Appellant became the registered proprietor of the property on 4 February 1998 and remains so. 3 On 20 February 2000, the Respondent issued a notice of assessment for land tax to the Appellant for the 2000 tax year, i.e. with respect to land owned as at 31 December 1999. A second notice of assessment was issued on 20 April 2000, for the 1999 year, i.e. with respect to land owned as at 31 December 1998. In each assessment the property was identified as land owned by the Appellant. 4 The Appellant objected to each of the assessments. The objections were disallowed by the Respondent on 24 August 2000. The Appellant instituted proceedings seeking declarations and orders designed to establish the proposition that it had no liability to pay the tax assessed with respect to the property for either the 1999 land tax year or the 2000 land tax year. 5 The proceedings came before Mason P sitting at first instance as a judge in the Equity Division of the Supreme Court. His Honour also had before him a cross-claim seeking judgment in the amount claimed to be due by way of land tax. There was no issue as to quantum. His Honour dismissed the Appellant's summons, entered judgment on the cross-claim for the amount sought ($310,221.21) and ordered the Appellant to pay the Respondent's costs of the proceedings. 6 The principal issue before Mason P, and before this Court, is the application of s52(i) of the Constitution of the Commonwealth of Australia which provides: "52 Exclusive Powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; …" 7 The tax in issue in these proceedings was said to be payable pursuant to the regime brought into effect by two interconnected Acts: the Land Tax Management Act 1956 (hereinafter "the LTMA"), which imposes tax in accordance with its terms, and the Land Tax Act 1956 (commonly referred to as the "Rating Act"), which establishes a rate of taxation applicable to a particular tax year. The rates relevant to the 1999 and 2000 land tax years were specified by s3AG and s3AH and attached schedules, as inserted by Sch 2 of the State Revenue Legislation Amendment Act 1997. This Act commenced on 1 July 1997. 8 The Appellant contends that the LTMA and the Rating Act are constitutionally invalid by reason of the operation of s52(i). The Respondent asserts the validity of the legislation, inter alia, on the basis on which Mason P found for the Respondent. Furthermore, the Respondent relies by way of Notice of Contention on the proposition that any invalidity was remedied by subsequent legislation which had the consequence of applying the land tax regime to the property as and from the date upon which it ceased to be a Commonwealth place. 9 The first provision on which the Respondent relied in its Notice is s14(2) of the Commonwealth Places (Administration of Laws) Act 1970 (NSW). Mason P did not find it necessary to deal with this contention. 10 Alternatively, the Respondent relied in its Notice on the effect of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) and the Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW). This legislation was not relied on before Mason P as the Arrangement necessary to bring the legislation into operation had not been made as at the time of his Honour's judgment. The requisite Arrangement has now been made and the Respondent contends that it has retrospective effect. 11 It is convenient to set out the relevant statutory provisions in the context of considering each of the separate arguments put to the Court. Of particular significance is the reasoning in judgments which establish the force of the exclusive legislative power found in s52(i) of the Constitution.

The Relevant Authorities 12 In 1970 the High Court determined three cases which form the foundation of s52(i) jurisprudence: Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; The Queen v Phillips (1970) 125 CLR 93 and Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262. This jurisprudence has been affirmed and applied in Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630, in which proceedings the High Court refused leave to reopen the 1970 trilogy of cases. It has also been applied in a pertinently similar context by the Court of Appeal of the Supreme Court of Queensland in Queensland Heritage Council v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2001] 2 Qd R 504. 13 This line of authority may be summarised in one extract from the judgment of Barwick CJ in Phillips at 103: "Once the place is acquired and as and from the date of its acquisition, the only statutory laws which, in my opinion, can validly operate to regulate or control the conduct of persons in the place acquired are laws which derive their authority from the Commonwealth. In other words, no statutory provisions operating to regulate or control the conduct of persons in that place can have validity unless they emanate directly or indirectly from the Parliament, the possessor of the relevant exclusive legislative power."

(Whilst the actual result in Phillips was left open, this passage was quoted with approval in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263 per Mason CJ, Dawson and McHugh JJ.) 14 The trilogy of 1970 cases covered three situations: (i) A State Act enacted at a time when a place was a Commonwealth place ( Worthing ).

(ii) A State Act in existence at the time that a place became a Commonwealth place and which remained such a place. ( Phillips ).

(iii) A State Act enacted at a time when a place was a Commonwealth place but which ceased to be a Commonwealth place ( Stocks & Holdings ). 15 The present case involves situation (iii). For that reason, Stocks & Holdings is particularly pertinent. 16 In Stocks & Holdings the Commonwealth had acquired the relevant property in 1929, for the purpose of using it as a rifle range. In 1965, a portion of the range was sold to the Randwick Council, which transferred it to Stocks & Holdings in 1968. The Cumberland County Planning Scheme, which had force as an Ordinance under the Local Government Act 1919, came into effect while the relevant property was a Commonwealth place. The rifle range was described on the map attached to the scheme and classified as "special uses". Pursuant to the scheme, property of that classification could not be subject to a change of use without consent of the responsible authority. The issue was whether Stocks & Holdings was required to obtain consent in order to erect a hotel on the land. 17 In Stocks & Holdings three questions were before the Court:

(i) Whether the Ordinance bound the Commonwealth at the time of its enactment.

(ii) Whether upon transfer by the Commonwealth, the Ordinance bound the new owner.

(iii) Whether a subsequent Interim Development Order suspending and, in effect, replacing the Ordinance, bound the new owner.

The Court answered each of these questions "No". 18 With respect to the first question it was clear that, at the time when the place was a Commonwealth place, the planning scheme neither had, nor could have had, any operation over the relevant land, either because the scheme did not intend to include the land in its operation, or if it had that intention, because it was rendered invalid to that extent. Windeyer J said at 279: "Whatever view be taken of the scope and effect of s. 52, this much is clear: first, that any law of a State made after the acquisition of a place by the Commonwealth has no force or effect in so far as it is a law with respect to that place: secondly, that a law, whether in general or specific terms, which restricts and controls the use to which a place can be put is a law with respect to that place. Therefore the Planning Scheme Ordinance could not have any lawful operation in respect of any place that had been acquired by the Commonwealth for public purposes before 27th June 1951, and which was at that date still held by the Commonwealth for such purposes." 19 Barwick CJ, McTiernan, Windeyer and Walsh JJ, with Menzies J dissenting, answered the second question "No". In so doing their Honours rejected the proposition that express provisions of the legislative scheme had the consequence of exempting the land from the application of the State Act for so long as the land remained the property of the Commonwealth, and no longer. 20 Section 652 of the Local Government Act 1919 provided: "652 The provisions of this Act shall be read subject to the provisions of the Commonwealth of Australia Constitution Act ." 21 This was reinforced by the Interpretation Act 1897 which provided: "14A(1) An Act shall be read and construed as operating to the full extent of, but so as not to exceed, the legislative powers of the State, to the intent that where any provision of the Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of those powers, it shall be a valid provision to the extent to which it is not in excess of those powers, and the remainder of the Act and the application of the provision to other persons, subject-matters or circumstances shall not be affected." 22 In any event, of course, there was the principle of the law of statutory interpretation that statutes should be read down on the basis that a parliament intended to legislate within the scope of its powers. However, neither the application of this principle nor the existence of the express provisions availed the State of New South Wales in the Stocks & Holdings case. 23 At 286-287, when outlining the submissions on behalf of New South Wales, Walsh J said: "I think it is essential also, that the submissions for the informant should include a submission that nevertheless the enactment did deal with the subject land and did make a law concerning it, namely, a law that if the land should cease at some future time to be owned by the Commonwealth, then the restrictions stated in the Ordinance to be imposed upon the erection of buildings upon, and the use of, land zoned as a 'Special Uses Area', would be applicable to it … … If the legislation is capable of the construction to which I have just referred, then it may be that it would not operate to burden the performance by the Commonwealth of its constitutional functions. But it would still be in my opinion in conflict with section 52(i), insofar as it operated in the manner for which, as I have said, the informant is in my opinion bound to contend in order to support his argument. I think it would be, to the extent to which upon that construction it would apply to the land, a law 'with respect to' the Commonwealth place, although its operation in relation to that place would not be immediate but would be prospective and would be contingent upon the cessation of Commonwealth ownership." 24 Walsh J referred to s652 of the Local Government Act and s14A of the Interpretation Act in his judgment at 287-288. His Honour found that these provisions were applicable and effective but did not avail the State in that they did not result in the consequence that the State legislation, there under consideration, became applicable upon the transfer of the land by the Commonwealth. 25 His Honour went on to refer to s652 of the Local Government Act and s14A of the Interpretation Act and to the general principle of law that an act will be read down so as not to extend beyond the competence of the legislature. 26 At 288, Walsh J considered that the appropriate approach was to read into any provision, which had the potential to exceed State legislative power, any necessary exception to render it within power: "I think that, in ascertaining the effect of the provisions, general words should be read and applied in the same way as they would have been read and applied if appropriate qualifications or exceptions had been expressly added to them so as to confine them within the scope of the legislative power. For example, in cl. 4 of the Ordinance the expression "all land" should be read as if places acquired by the Commonwealth for public purposes had been excepted and in cl. 29 a similar exception should be understood. In my opinion the Ordinance may properly be read down to the extent required to avoid any excess of constitutional power. But if it be so read, the result is that the subject land was not within the scheme at all. The provisions of the Ordinance had no application to it." 27 In Stocks & Holdings, a construction within State legislative power could only be achieved by specifically excluding the rifle range which was at that time a Commonwealth place. It would have been insufficient to include an exception for the Commonwealth alone, because this would be within the area of exclusive legislative power in s52(i). His Honour said at 288: "If the only constitutional impediment had been the principle that the State Parliament cannot lawfully dictate to the Commonwealth what it may do or allow to be done upon its property and cannot impede its performance of its constitutional functions, it may be that it would have been sufficient, in order to keep the provisions of the Ordinance within the power, to import into them the qualifications which would accord with the submissions for the informant. It may have been proper in that event to read these provisions as subject to a proviso that they were to have no operation or effect upon the Commonwealth or upon the use of any land so long as it remained Commonwealth land. But in my opinion if its provisions were understood to be subject to those qualifications, but to no more extensive qualification, the Ordinance would still be a law with respect to the Commonwealth places which at the time of its enactment were within the area to which the Ordinance referred. It is only if the provisions should be understood as having no application at all to lands which had been acquired by the Commonwealth for public purposes and were still held by it, that the Ordinance would avoid the consequences of s52(i). But if so understood, those lands, although marked upon the map, would not be within the scheme. The scheme would not apply to them." 28 His Honour went on to limit his remarks to the legislation there under consideration and concluded at 289: "I am of opinion that it is not competent for the State Parliament to declare in advance the uses which may be made of the land by any person who may succeed the Commonwealth as owner of it. Such a law would limit the extent and value of the rights which could be enjoyed by a new owner to whom the Commonwealth transfers the land. It might have the effect that the Commonwealth could not dispose of its land, except for use for one particular purpose e.g. as a park. In my opinion, such a law would be in conflict with s52(i)". 29 Barwick CJ at 266 adopted the reasons of Walsh J. His Honour, at 267, also referred to s652 of the Local Government Act and s14A of the Interpretation Act and to the submission that the planning scheme should be construed as if it contained a provision that its terms would not apply as long as the Commonwealth owned the land, but would apply when it transferred the land. His Honour concluded at 267: "In my opinion there are two answers to the submission. The first is that it would not be, in my opinion, an exercise of construction to import such a provision into the scheme. It would, in my opinion, amount to an attempt to legislate. But secondly and more importantly such a provision, in my opinion, would itself offend s52(i) for the reasons expressed by my brother Walsh." 30 McTiernan J came to the same conclusion. His Honour implicitly referred to the submission based on s652 and s14A when his Honour concluded at 269, (albeit in the context of answering the first question before the High Court, i.e. whether upon the enactment of the State Act the Ordinance bound the Commonwealth at a time when the Commonwealth was owner): "Even if the Ordinance were read down so as to avoid any excess of power, the result would be the same, for the scheme on its enactment would have had no application to the land in question." 31 His Honour went on at 269 to answer the second question and said: "But the Ordinance was not applicable to the land in question before the transfer by virtue of s52(i). In my opinion there was nothing entailed in the change of ownership which would have had the effect of applying the Ordinance to the rifle range." 32 Windeyer J did not expressly refer to s652 and s14A. However, his Honour said at 281-282: "The Solicitor General for New South Wales argued that the Ordinance should be read as if it provided that it should not affect any Commonwealth land while it was held by the Commonwealth but should take effect in respect of any such land shewn on the scheme map if the Commonwealth should cease to hold it. I do not think that the Ordinance can be read in that way, as prospectively and contingently bringing land not subject to its provisions within them in the future. Such an enactment would I consider be invalid, for the State Parliament has no power to make any law with respect to a place acquired by the Commonwealth for public purposes. A law would not be any the less an infringement of this prohibition because it was not to operate forthwith but only upon the contingency of the Commonwealth in the future abandoning the place … If the Ordinance did not bind the Commonwealth with respect to its use of the subject land, then I do not think that it could be said to bind its successors in title simply because the condition, Commonwealth ownership, which put the place beyond the reach of the Ordinance has come to an end. … If the land that the Commonwealth gave up has been made subject to the scheme, that must be as the result of something occurring after the Commonwealth gave it up effective in law for that purpose" 33 It is instructive to consider the dissenting judgment of Menzies J. His Honour identified at 272 a choice to be made between the "alternatives of invalidity or reading down". His Honour referred to s652 and s14A together with the general common law principle to which I have earlier referred. His Honour concluded at 275: "Here, it seems to me, that the exclusion of the Commonwealth and of Commonwealth land from the restrictions and prohibitions of the scheme was so obviously necessary for validity that it is proper to conclude that such exclusion was intended, and the mere fact that there are no express words of exclusion, does not warrant the invalidation of the scheme as a whole … Therefore, as a matter of interpretation, I have come to the conclusion that the prohibitions and limitations of the scheme do not apply to the Commonwealth or to lands at any time answering the description of 'places acquired by the Commonwealth for public purposes'. When, therefore, the scheme was adopted it did not apply to the Long Bay Rifle Range for two reasons - (1) that the scheme was not intended to control the Commonwealth in the exercise of its constitutional functions and (2) that it was not intended that the scheme should apply to lands of the Commonwealth situated within the County of Cumberland District. Once the Commonwealth disposed of land comprised in the Long Bay Rifle Range the first reason would no longer afford any ground for denying the application of the scheme for land which the Commonwealth had ceased to use. To the literalist, however, it is more difficult to conclude that land, having been acquired by the Commonwealth for public purposes, ceased to be land within that description once the Commonwealth had disposed of the land and it had been acquired from the Commonwealth by some other person. However, having regard to the purpose of s52 of the Constitution, it seems right to me to construe that section as authorizing Commonwealth legislation with respect to places being the property of the Commonwealth which have been acquired by the Commonwealth for public purposes. Land within the County of Cumberland District, owned by the State of New South Wales and then acquired by the Commonwealth for public purposes, would upon such acquisition, fall within s52 as being a place within the description to be found therein. On the other hand, it would seem to me an unreasonable construction of s52 to deny the application of State laws in respect of places merely because, at an earlier day, they had been acquired by the Commonwealth for public purposes. The word 'acquired' in s52(i) does not, I think, require such an unreasonable consequence and I read the phrase 'acquired by the Commonwealth' as carrying within itself the notion of being the property of the Commonwealth. Once land falls outside that description it is no longer one of the places with respect to which the Commonwealth has power to make laws under s52 and it is a place in respect of which the State Parliament may make laws. Any other conclusion would leave areas of land in which the Commonwealth had ceased to have any particular interest as subject to Commonwealth legislative power to the exclusion of State legislative power even if the land had become the property of the State. A construction of s52 producing such an arbitrary and unreasonable result should be adopted only if the language used compels it. As I have said, s52 is susceptible of a more rational construction." 34 His Honour went on to conclude, with reference to legislation of the very character now under consideration at 277-278: "… I do not think that s52 would prevent a State from enacting a valid law specifying property, including places acquired by the Commonwealth, but having no operation with respect to such places until they cease to be the property of the Commonwealth. The reason for this is that I think, for reasons already stated, that a Commonwealth law, expressed to operate with respect to a place acquired by the Commonwealth not only while it is the property of the Commonwealth but after it has ceased to be so, would not be a valid law. What the Commonwealth Parliament cannot do, a State Parliament can. Section 52, according to my construction, is an exclusive power to make laws for property so long as it fulfils the description of a place acquired by the Commonwealth but not thereafter. Accordingly, in my opinion, a State law imposing rates or land tax and passed before or during the time a place fell into the description of a place acquired by the Commonwealth, could apply, without further legislation to the place which had ceased to be a place acquired by the Commonwealth." 35 His Honour's powerful dissent cannot be regarded as a statement of the law. 36 In the same way that Commonwealth legislative power over a Commonwealth place commences with acquisition, State legislative power resumes when a place ceases to be a Commonwealth place by reason of a transfer of that property. (See Stocks & Holdings at 267, 284-285, 289. These references are described as "dicta" in the joint judgment in Allders at 675.) However, for the planning scheme in Stocks & Holdings to commence effective operation over the property in question, a fresh enactment of the State legislature was required. 37 The Attorney General claimed, in the context of the third question before the Court, that an Interim Development Order made subsequent to the transfer had this effect. A majority rejected that argument because, pursuant to the provisions of the Local Government Act, the force of the IDO was dependent on the suspension of the pre-existing scheme. As the scheme had no operation over the Commonwealth place, neither the suspension nor the IDO could affect it. (See Barwick CJ at 268, McTiernan J at 270 and Walsh J at 291. Windeyer J who otherwise agreed with the majority came to a different conclusion on this discrete question.) 38 Walsh J, with whom Barwick CJ agreed, concluded at 291: "In my opinion the subject land was not land to which the scheme applied when it was enacted in 1951. In the period since the land passed from the ownership of the Commonwealth, no legislation has been enacted and no step has been validly taken under legislative authority to apply to the land the provisions of the scheme or any other relevant restrictive provisions." 39 There is a suggestion in one of the majority judgments in Stocks & Holdings that some State laws may spring into operation of their own force upon a place ceasing to be a Commonwealth place. Windeyer J said at 281: "[T]he present question … is not a question of the application of general laws of a State in places that have ceased to be Commonwealth places. It is whether or not a particular State law, the Ordinance, which had previously no force with respect to the subject land, because that land was by law placed outside its purview, somehow came into force there when the Commonwealth relinquished its ownership." 40 The distinction between a "general" law and a "particular" law is fraught with difficulty. Its pertinence, as a distinction, was rejected in both Worthing and Phillips, albeit not with respect to a case involving a place that has ceased to be a Commonwealth place. I can see no principled basis on which it can be introduced in that category alone. 41 In Worthing, the majority specifically held that the power exclusively reserved to the Commonwealth by s52(i) extends to laws of general application and is not confined to laws which operate on a particular Commonwealth place. (See Barwick CJ at 101-2, Menzies J at 120, Windeyer J at 128 and Walsh J at 138.) This was affirmed in Allders in the joint judgment of McHugh, Gummow and Kirby JJ (with whom Gaudron J agreed) at 668: "… s52(i) excluded the power of the State Parliament, even by a law of general application, to regulate the conduct of persons engaged in activity in the acquired place." 42 In Stocks & Holdings the application of the State Act was "particular" as the rifle range appeared on the scheme map. Similarly, in Queensland Heritage, Hesketh House was listed in a schedule. However, the reasoning in those cases did not, in my opinion, turn on this element of particularity. The issue is whether the State law is a law "with respect to" a Commonwealth place. The express references in the legislation under consideration in Stocks & Holdings put that beyond argument. However, no such express reference is required to satisfy that test, as shown by Worthing and Phillips. 43 It may appear paradoxical that a provision of a State statute designed for the purpose of ensuring that the statute did not offend the Commonwealth Constitution, was itself a provision that offends the Constitution. However that is the effect of the majority judgments in Stocks & Holdings. The rationale is that a provision in a State statute that has the consequence of applying that statute at the time that the place ceases to be a Commonwealth place impinges on the rights and interests of the Commonwealth so that it can be characterised as a law "with respect to" that place. The result was that the statute could only be upheld on the basis that it did not apply to that place at all and did not spring into life when the legislative power of the State was restored. The legislative power had to be re-exercised afresh after that time. 44 In Allders the High Court considered the application of the Stamps Act 1958 (Victoria) to a transaction between a Commonwealth corporation that owned Tullamarine Airport on behalf of the Commonwealth and a company leasing space within the terminal for a duty-free store. 45 In a joint judgment, with which Gaudron J agreed (at 662), McHugh, Gummow and Kirby JJ said at 676: A useful test which has been adopted by the Court is to ask whether, if the federal Parliament were to enact a law similar to the impugned State law with respect to the place, such a law would be valid [ Worthing (1970) 123 CLR 89 at 120]. As we have previously noted, most of the questions which have arisen from consideration of s52(i) have concerned not the extent of the power granted to the federal Parliament but the exclusion of the power of State law-making [ Worthing (1970) 123 CLR 89 at 127]. Yet the one is the obverse of the other. If there is federal law-making power it is exclusive with respect to the place. If this test is applied to the present facts, there can be no doubt that federal law could impose a stamp duty on an instrument of lease of land within a place acquired by the Commonwealth for public purposes. A moment's reflection will therefore show why the principle that stamp duty is a tax on instruments cannot forcelose the constitutional characterisation required by a provision such as s52(i)." 46 The test of whether the Commonwealth Parliament could pass a law was referred to in Worthing at 103 per Barwick CJ, 119-120 per Menzies J and 139-141 per Walsh J and in Phillips at 129-130 per Gibbs J. See also Bevelon Investments Pty Ltd v City of Melbourne (1976) 135 CLR 530 at 545-546 and Allders at 638, 640 per Brennan CJ and at 670 per McHugh, Gummow and Kirby JJ. 47 As Menzies J put it in Worthing at 119-120: "s52 … is a grant of legislative power for the Commonwealth, and the limits of that grant measure the denial of power to the Parliaments of the State." 48 The Queensland Heritage Council case concerned the application of the Queensland Heritage Act 1992 to a property purchased by the Catholic Church from Australian and Overseas Telecommunications Corporation (AOTC). The AOTC was incorporated by a Commonwealth Act but was to all other intents and purposes a private corporation. The land had been owned by the Commonwealth for many years before it was vested in the AOTC in February 1992. 49 The Church sought to demolish the property (Hesketh House), in order to enhance a church building on adjacent land. The issue was whether the provisions of the Heritage Act prohibiting demolition of such buildings without consent of the Queensland Heritage Council applied to the property which had been acquired by the Church. 50 The history of application of laws to the property was that from 1945 or thereabouts until the property was passed to the AOTC, the Commonwealth had exclusive legislative power with respect to it. From 1970 onwards, the Commonwealth Places (Application of Laws) Act 1970 (Cth) had applied the laws of the State of Queensland to the property. As a result, the Heritage Act 1990 (Qld) had applied to the property, which was listed in the schedule to that Act as a heritage property. 51 The AOTC Act 1991 (Cth), pursuant to which the AOTC was created, also provided for the application of State and Territory laws to places occupied by the AOTC. Section 33 of that Act, however, provided a specific exception in relation to State laws governing, inter alia, building standards, the approval of construction of buildings, and the alteration or demolition of buildings, structures or facilities. 52 Macpherson JA, with whom De Jersey CJ and Williams J agreed in this respect, discussed at par [28] the status of the property prior to the 1991 Act. His Honour referred to the effect of Stocks & Holdings that the Commonwealth held exclusive legislative power with respect to Hesketh House from the period of Commonwealth acquisition, and that State laws could not have had any valid operation with respect to the property. His Honour referred to the Commonwealth Places (Application of Laws) Act 1970 (Cth) which had given effect to the Heritage Building Protection Act 1990 (Qld), with respect to Hesketh House, when the Queensland Parliament could not validly have legislated with respect to the property. At that stage the Heritage Act therefore applied, but only by force of the Commonwealth legislation. 53 When Hesketh House was transferred to the AOTC, the Commonwealth application of the Heritage Act ceased. As the Heritage Act 1996 could not have applied to Hesketh House from its enactment, neither could it be revived upon Hesketh House returning to State legislative power. The Queensland Heritage Act 1992 which came into effect after transfer to the AOTC but before transfer from the AOTC to the Church, was found not to apply as a matter of construction. The Act operated on the basis that an owner was given an opportunity to make submissions about whether its property should be listed for protection. 54 These authorities indicate that s52 of the Constitution is not concerned with State legislation. It is concerned with State legislative power. The Commonwealth has an "exclusive power" in the relevant respects. Section 52 does not deprive a State Act of effect. It deprives a State Act of validity because there was no power to enact it. 55 In Phillips the dissentients sought to distinguish between "legislative power" per se and "the operation and effect of laws made under legislative power". (See at 123 and 125 per Walsh J and at 131-133 per Gibbs J.) However that distinction did not prevail. (See also Allders at 639-640 per Brennan CJ.) 56 As Latham CJ said in South Australia v The Commonwealth (1942) 65 CLR 373 at 408: "A pretended law made in excess of power is not and never has been a law at all."

(This line of authority is summarised by Kirby J in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [57]-[60].)

Decision of Mason P 57 Mason P referred to the authorities, including Worthing, Phillips, Stocks & Holdings and Allders. His Honour acknowledged the particular pertinence of Stocks & Holdings and the conclusion, in that case, that the legislative scheme there under consideration "did not spring into operation qua the land when the Commonwealth transferred the land to the Council in 1965" (par [10]). His Honour distinguished Stocks & Holdings in the way I will set out below. 58 His Honour rejected the Appellant's submission that the Rating Act and the LTMA were rendered invalid from their inception by force of s52(i). His Honour noted that the LTMA provides a detailed regime for the imposition, assessment and collection of tax and that the Rating Act, pursuant to numerous subsequent amendments, imposes taxation at certain rates from different dates. He noted that the rates relevant for the two assessments in dispute in the present proceedings were enacted by legislation in 1997. 59 His Honour concluded: "[21] The charging provisions that give rise to the imposts at issue in these proceeding were therefore enacted at a time when the subject land was owned by the Commonwealth and a Commonwealth place. However, each provision remained entirely ambulatory until midnight on 31 December of the stipulated year. The tax would fall only upon those who were owners of land at midnight on 31 December of the stipulated year and not entitled to exemption or otherwise excluded from liability by the two enactments read together. Adopting the language of Isaacs J, when referring to the Land Tax Assessment Act 1910 (Cth) in Attorney General (Qld) v Attorney General (Commonwealth) (1915) 20 CLR 148 at 174: 'The taxing Act is always speaking in the present. It does not affect to change or menace men's actions, but is standing declaration of the law with respect to landed estates as they appear to exist at a given moment.' [22] Of even greater significance, the imposition of tax depended upon the provision of the LTMA; and that Act never purported to impose any tax on anyone referable to the land until 31 December 1998." 60 His Honour made reference to a number of sections of the LTMA which it is convenient to set out at this point. As originally enacted in 1956 the sections were: "7 Subject to the provisions of this Act, land tax at such rates as may be fixed by any Act shall be levied and paid upon the unimproved value of all lands situated in New South Wales which are owned by taxpayers, and which are not exempt from taxation under this Act. 8 Land tax shall be charged on land as owned at midnight on the thirty-first day of October immediately preceding the year for which the land tax is levied. In this section 'year' means the period of twelve months commencing on the first day of November. 9 (1) Land tax shall be payable by the owner of land upon the taxable value of all the land owned by him and not exempt from taxation under this Act. (2) The taxable value of all the land owned by a person is the total sum of the unimproved value of each parcel of the land … …" 61 Subsequently to 1956 there have been some immaterial amendments, e.g. the substitution of 31 December for 31 October in s8. 62 The Rating Act determines the amount payable. Relevantly, s3AG is in the following terms: "3AG(1) … in respect of the taxable value of all the land owned by any person … at midnight on 31 December 1998 there is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act, land tax for the period of 12 months commencing on 1 January in the next succeeding year and at the rate set out in Schedule 8." 63 Section 3AH is in identical terms, save that it refers to land owned at midnight on 31 December 1999 and following years and the relevant schedule is Sch 9. 64 As originally enacted s10(1)(a) of the LTMA relevantly provided: "10(1) Except where otherwise expressly provided in this Act the following land shall be exempt from taxation under this Act: (a) land owned by the Crown…" 65 Mason P noted that s10(1)(a) was repealed in 1991. However, the relevant exemption was re-enacted in s21C of the Act, which provided: "21C(1) The Crown … is not liable for land tax in respect of land it owns (except as specifically provided by Part 3). …." 66 There was no suggestion during the course of the submissions in this case that there was any relevant provision in Pt 3. 67 Mason P referred to s2 of the LTMA which states: "2 This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act , and so as not to exceed the legislative power of the State to the intent that where any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected." 68 After his Honour quoted this section he said: "[27] The first part of this section is a coy acknowledgment of the obvious. The second part seeks to preserve maximum operation of the Act by establishing a presumption, that to the extent that its operation is within the power of the State legislature, the law is to be valid notwithstanding that, as expressed, it is in excess of power. By establishing a presumption of severability it permits the LTMA to operate validly within Constitutional limits (see Carter v The Potato Marketing Board (1951) 84 CLR 460 at 484, 486)". 69 His Honour referred to the reliance by the Appellant on the decision in the Stocks & Holdings case. His Honour distinguished that case and said: "[10] The Court also held that the scheme did not spring into operation qua the land when the Commonwealth transferred the land to the Council in 1965: a fresh enactment would have been needed to subject the land to the regime of land management embodied in the 1951 Act. To my mind it is clear that this decision turned on the specific nature of a comprehensive and enduring planning scheme that purported to control the use of the land in question from its inception (see per Barwick CJ at 267, per McTiernan J at 269, per Windeyer J at 281-2, per Walsh J at 289)". 70 His Honour rejected the submission that the LTMA was a law with respect to a Commonwealth place. His Honour's reasoning was as follows: "[29] This analysis overlooks entirely the fact that the LTMA and the Rating Act failed to engage with the subject land in 1956. By expressly abrogating any intent to tax the Commonwealth or anyone else with respect to the land during its status as land vested in the Commonwealth Crown, the New South Wales Acts were so framed as to be incapable of characterisation as laws with respect to Commonwealth places, the subject land in particular. [30] In Stocks & Holdings (at 288) Walsh J discussed what would have been the position if the County of Cumberland Scheme had been read as subject to a proviso that it was to have had no operation or effect upon the Commonwealth or upon the use of any land so long as it remained Commonwealth land. He said that the Ordinance would still have been a law with respect to Commonwealth Places which at the time of its enactment were within the area to which the Ordinance referred. (See also per Barwick CJ at 267, per Windeyer J at 281-2). See also Queensland Heritage Council v Corporate Trustees, Roman Catholic Diocese of Brisbane (2000) 157 FLR 373 at 382 (although the citations to Stocks & Holdings appear confused). [31] The present legislative scheme is entirely distinguishable. The Rating Act and LTMA are laws of general application, but they do not purport to affect or bind all land in the State as from 1956. Liability descends upon taxable owners with respect to their ownership of non-exempt land as at 31 December in a particular year. Even then, the rates and tax thresholds vary from period to period. The provisions referred to in par 25 above have the effect that the Commonwealth Crown and Commonwealth places are expressly excluded. In these circumstances, it is quite fanciful to see any role for s52 of the Constitution. [32] The matter may be tested by asking whether, if the Commonwealth Parliament enacted the LTMA and the Rating Act in 1956, it would have been valid as a law with respect to Commonwealth Places (see Allders at 638, 642, 676). In my view it would not have been capable of such characterisation in light of the express exemption of land owned by the Crown and the absence of any other indicia sufficient to attract s52 of the Constitution." 71 The "provisions" referred to in his Honour's par [25] were s10(1)(a) of the 1956 LTMA and its replacement by s21C(1) of the present LTMA. Mason P gave particular weight to the exemption of the Crown in par [31] quoted above.

Submissions on s52(i) of the Constitution 72 The Respondent supported the reasoning of Mason P with respect to the application of s52(i) of the Constitution and the way in which his Honour distinguished Stocks & Holdings. Alternatively, the Respondent put forward a different basis on which Stocks & Holdings could be distinguished. The learned Solicitor General for New South Wales, Mr M Sexton SC, submitted: "At its highest, Stocks & Holdings is authority for the proposition that an interim development order made under State legislation in relation to land previously owned by the Commonwealth was not applicable to the land because the original zoning legislation was enacted during a period when the Commonwealth was the proprietor (at 282, per Windeyer J). The majority of the High Court confined their reasoning to the particular subject matter under consideration - namely a planning ordinance regulating the use of the relevant land (at 281 per Windeyer J; at 269 per McTiernan J; at 289 per Walsh J (with whom Barwick CJ agreed at 266)…)." 73 In the alternative, the Respondent made the formal submission that if Stocks & Holdings was authority for any broader proposition then it should not be followed. 74 The reasoning in Stocks & Holdings cannot be restricted to an Interim Development Order. That was the subject of the quite distinct third question in that case. It is the reasoning with respect to the second question that is relevant here. 75 The rest of the Respondent's quoted submission is similar to the reasoning of Mason P which emphasised the "comprehensive and enduring planning scheme". The Respondent pointed out that the Queensland Heritage Council case also involved a planning law regulating the use of land. 76 The Respondent also sought to distinguish Stocks & Holdings in the following way: "In order to make the 1999 and 2000 assessments applicable to the land, it is not necessary to refer back to any legislative exercise within the period of Commonwealth ownership as was necessary in Stocks & Holdings. The LTMA is premised on yearly assessments and the two assessments made in relation to the Plaintiff have been calculated by reference to periods subsequent to the years of Commonwealth ownership. There is no obligation on the State to ensure that fresh land tax legislation is passed subsequent to 4 February 1998 so as to validly levy land tax on the property." 77 In oral submissions the learned Solicitor identified the above submissions as a "variant of the approach that was taken by Justice Mason". He submitted that the State Acts operate at specific assessment dates, as determined by s3AG and s3AH of the Rating Act, and are applicable of their own force. In that respect, the learned Solicitor General referred to the scheme as an "ambulatory piece of tax legislation". He submitted that in order to make the assessments in 1999 and 2000 it was not necessary to refer back to any period of time when the land was in Commonwealth ownership. 78 Mr N Hutley SC, who appeared for the Appellant, focused his submissions on s2 of the LTMA. His basic submission was that this section in the context of the LTMA was such that the legislative scheme did purport to apply to Commonwealth land but proceeded, by way of a separate and distinct step, to exempt such land from its scope. In this regard he focused on the concluding part of s2 of the LTMA, which provides for severance of any provision found to be invalid either as such or in its application. On this approach, Mr Hutley contended, Mason P erred in characterising the legislative scheme as not "engaging" with the relevant land at all until after it had been transferred by the Commonwealth.

Ambulatory Legislation 79 The LTMA and the Rating Act are "ambulatory" in the sense that land tax is payable with respect to land owned on a particular date and at rates determined with respect to that particular year. The specification of a time, or of a time together with a rate applicable to a time period or time, is a characteristic which land tax shares with other forms of direct taxation. 80 It may well be that this alone is sufficient for purposes of determining when taxation is 'imposed' for purposes of s114 of the Constitution which relevantly provides: "A State shall not, without the consent of the parliament of the Commonwealth … impose any tax on property of any kind belonging to the Commonwealth …" 81 This Court did not receive any submissions on the effect of s114 and I refer to it only for purposes of contrasting the possible effect of that section with the nature of s52 as a denial of legislative power. 82 It is not necessary to consider the situation, if materially different, if s3AG and s3AH had been inserted into the Rating Act after the disposal by the Commonwealth of the land in question in these proceedings. They were in fact enacted prior to that disposal. It can be accepted, as Mason P said, that each of s3AG and s3AH have the effect of imposing taxation on the person who is the owner of land on 31st December of each of the respective years. That does not, however, in my opinion, mean that the legislation is not legislation with respect to a Commonwealth place in the case of property that is owned by the Commonwealth as at the date of the legislation. 83 As indicated above an appropriate test is to determine whether legislation of this character could have been passed by the Commonwealth Parliament. I hypothesise a Commonwealth land tax applicable within the area of Commonwealth legislative power encompassing the Territories, invoking a range of placita of s51 of the Constitution and extending to land acquired for public purposes within s52(i). 84 Such legislation could be structured in the same way as the provisions of the LTMA and the Rating Act by requiring land tax to be levied and paid in accordance with a rate fixed by another Act (s7(1) of the LTMA); charging such land as owned at midnight on 31 December immediately preceding the taxation year (s8 of the LTMA); specifying that land tax is payable by the owner of land on the taxable value of the land, which is not otherwise exempt (s9 of the LTMA). The rate at which such tax is to be "charged, levied, collected and paid", under the foregoing provisions, may be specified with respect to land owned on 31 December of certain specified future years (s3AG and s3AH of the Rating Act). 85 The fact that the legislation is ambulatory in the sense that it imposes taxation with respect to future years at a time when the person who owns property on the date of the enactment may no longer be the owner of that property, does not deprive the enactment of the character of being a law with respect to that property as at the date of the enactment. In this regard I am unable, with respect, to share the contrary conclusions reached by Mason P. In my opinion, the legislation did "engage" the land at the time of its enactment, albeit with practical effect from a future date. 86 Contrary to the submissions of the Respondent that the State acts operate at their assessment dates, in my opinion, they operate on the land from their enactment. The issue is not one concerning the operation and effect of State legislation. As I have indicated above such an approach was adopted by the dissentients in Phillips. It is not, in my opinion, consistent with the approach of the majority in that case and in Worthing. The primary proposition emerging from the 1970 trilogy of cases is that s52 concerns legislative power, not legislation. As at the date of enactment the property was a Commonwealth place. The New South Wales Parliament has no power to pass a law with respect to such a place.

The Exemption of the Commonwealth 87 As a matter of statutory construction, there is no doubt that the Parliament of New South Wales did not intend to impose a tax on land owned by the Commonwealth, relevantly the property at 97 Elizabeth Bay Road. Mason P determined, and the Respondent now contends, that the nature of that exemption in the legislative scheme for Commonwealth property was such that an obligation to pay tax arose, on the part of the new owner, when the property was transferred by the Commonwealth. It is, of course, the latter effect which is of central significance for the present proceedings. It is said to arise simply as a matter of statutory construction. Once the provisions which had the effect of exempting the Commonwealth from the obligation to pay land tax were no longer applicable, it is submitted the Acts applied of their own force to the new owner for the purposes of the 1999 and 2000 tax years. 88 Two provisions are identified by Mason P as having the requisite effect either separately or cumulatively. These are also relied upon by the Respondent. Those provisions concern the express exemption of Crown land and the provision in s2 of the LTMA that the Act be read subject to the Constitution. 89 There may be an issue as to whether or not the exemption of Crown land in s10(1)(c) of the LTMA, as originally enacted and continued in s21C as in force at the date of the transfer of the land in these proceedings, extends to land held by the Crown in the right of the Commonwealth (c/f s13 Interpretation Act 1987). The submissions in this Court proceeded on the assumption that it did. It appears that the proceedings before Mason P proceeded on the same assumption. 90 With respect to the exception of Crown land, there are three possible relevant points of time. First, in 1956 when s10(1)(a) was enacted as part of the original LTMA; secondly, in 1991 when s10(1)(a) was repealed and replaced by s21C by the Land Tax Management (Amendment) Act 1991; thirdly, in 1997 when s3AG and s3AH were inserted into the Rating Act. No submission suggested that anything turned on these respective dates. 91 In my opinion, as part of a general land tax act of the character to which I have referred above, the Commonwealth Parliament could pass a law exempting the Crown in the right of the Commonwealth from liability to land tax. Applying the test that whatever the Commonwealth Parliament may enact is excluded from the power of the State Parliaments, the State could not exempt the Crown in the right of the Commonwealth as a matter of legislative power under s52(i). As I have said above, this may seem to be a paradoxical result, but it appears to be required by the judgments in Stocks & Holdings. 92 With respect to s2 of the LTMA, Stocks & Holdings cannot be distinguished. Section 652 of the Local Government Act 1919 and s14A(1) of the Interpretation Act 1897 are to the same effect as s2 of the LTMA. These did not avail the State of New South Wales in that case. In my opinion, the same consequence must apply to s2 of the LTMA in the present case. All four of the majority judges in Stocks & Holdings found that provisions to identical effect as s2 of the LTMA were themselves provisions with respect to a Commonwealth place. 93 There are difficulties with the majority judgments in Stocks & Holdings. (See e.g. Dennis Rose, The Commonwealth Places (Application of Laws) Act 1970 (1971) 4 Fed Law Rev 263 esp at 280-282; P H Lane Lane's Commentary on the Australian Constitution (2nd ed) Sydney 1997 at p384.) Nevertheless, this Court is bound by that decision. The effect of the reasoning of the majority is, in my opinion, such as to prevent the Court from giving s2 of the LTMA, or the equivalent provisions in the Interpretation Act, or the general principle of statutory construction or the exemption of the Crown, an effect which permits the application of the LTMA and the Rating Act as and from the date upon which the Commonwealth might transfer the property. 94 There is a relevant point of distinction between the legislation under consideration in Stocks & Holdings and the legislation in the present case. In Stocks & Holdings the legislation in question operated in rem on the land itself. In the present case the legislation operates upon an owner of land and does not have the in rem quality of a planning scheme. This distinction lies at the heart of that part of the judgment of Mason P, adopted by the Respondent, upon which his Honour distinguished Stocks & Holdings. 95 With respect, I am unable to agree that the judgment in Stocks & Holdings turned on the particular legislation which, as a planning scheme, purported to control the use of the land. The issue is whether a law is "with respect to" a "place". A tax on property is as much such a law as is a restriction on its use. The test of whether or not the Commonwealth could pass the State statute is, as I have said, in my opinion, satisfied here. 96 A possible approach would be to read down the words "exclusive power" so as not to extend to legislative provision by a State intended to have the effect, and which has the effect, of ensuring adherence to the provisions of the Constitution, relevantly s52(i) and, in the particular circumstances of this case, s114. However, no such submission was advanced in this Court. Nor, in my opinion, is it consistent with the reasoning in Stocks & Holdings. 97 As at 1956, the LTMA must be read down so that the reference to "all land situated in New South Wales" is construed in the same way as the words "all land" in cl 4 of the Ordinance in Stocks & Holdings was construed i.e. "as if places acquired by the Commonwealth for public purposes had been excepted" (per Walsh J at 288, fully quoted above). A similar construction should be given to the words "all the land owned by any person" in each of s3AG and 3AH in the Rating Act. The consequence is stated by Walsh J at 288 "the result is that the subject land was not within the scheme at all". (For "scheme" here read "scope of the land tax system"). 98 The object of the exemption of Crown land by s10(1) and s21C, assuming it extends to the Commonwealth Crown, was directed to ensuring that the Acts did not operate with respect to the land. However, on the authority of Stocks & Holdings, that does not matter. The LTMA and the Rating Act can only be saved from complete invalidity if they are construed so that they do not extend to the land at all. 99 In a sense, this land had been excluded twice: once by the intention of the New South Wales Parliament and once by the Constitution. Because of the latter, as interpreted in Stocks & Holdings, the former was ineffective. There is a chicken and egg quality about this issue. Although Stocks & Holdings did not involve an express exclusion of Crown land of the Commonwealth, the reasoning which led the Court to conclude that other attempts to exclude the land were ineffective appear to me to apply to this exclusion also. I am unable to distinguish Stocks & Holdings. 100 In my opinion the Respondent's submissions should be rejected on the matters that arise on the appeal. That leaves the matters raised by way of Notice of Contention.

The Commonwealth Places Scheme 101 In response to the 1970 trilogy of cases, the Commonwealth and the States enacted co-operative legislation to overcome the consequences of the interpretation of s52(i). The Commonwealth passed the Commonwealth Places (Application of Laws) Act 1970, to which I will refer as the Commonwealth Application of Laws Act and New South Wales passed the Commonwealth Places (Administration of Laws) Act 1970, to which I will refer as the State Administration of Laws Act. 102 As the 1970 trilogy of cases made clear, the relevant operative enactment had to be a Commonwealth enactment. Section 4(1) of the Commonwealth Application of Laws Act provides: "4(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time." 103 However, this section, which applied the laws of the State as laws of the Commonwealth, was subject to the following relevant exception in s4(5): "4(5) Subsection (1) of this section does not: (a) have effect so as to impose any tax. …" 104 By reason of the exclusion in s4(5), the Respondent in these proceedings did not rely on any section of the Commonwealth statute as having the consequence of causing the State land tax legislation to come into force with respect to the property in issue in these proceedings as at the date of its transfer to the Appellant. Rather, the Respondent relied on s14(2) of the State Administration of Laws Act which provides: "14(2) Subject to subsection three of this section, when a place ceases or has ceased to be a Commonwealth place at a particular time the laws of the State in force at that particular time apply or shall be deemed to have applied in or in relation to that place as if those laws had come into operation at that particular time and every Act, whether passed before or after the commencement of this Act and every instrument made or having effect under any such Act, shall be read and construed as if it provided expressly that it was intended to so apply or to have so applied." 105 Nothing in s14(3) is pertinent. 106 The Respondent submitted that s14(2) applied in accordance with its terms. The Appellant submitted, however, that s14(2) was itself a law with respect to a Commonwealth place and accordingly invalid. The Appellant relied on those parts of the judgment in Stocks & Holdings which I have set out above, especially at pars [27]-[32]. 107 Applying the test of whether the Commonwealth Parliament could pass such a law, I am of the opinion that it could. The terms of s14(2) of the State Administration of Laws Act, if enacted by the Commonwealth, would be sufficiently closely connected with the legislative power to make laws "with respect to" a Commonwealth place. This is not an attempt to regulate a property at some point well after that property has ceased to be a Commonwealth place. It purports to operate at the time that a place ceases to be a Commonwealth place. 108 The example used by Walsh J in Stocks & Holdings at 289 is pertinent and I quote it again: "I am of opinion that it is not competent for the State Parliament to declare in advance the uses which may be made of the land by any person who may succeed the Commonwealth as owner of it. Such a law would limit the extent and value of the rights which could be enjoyed by a new owner to whom the Commonwealth transfers the land. It might have the effect that the Commonwealth could not dispose of its land, except for use for one particular purpose, eg as a park. In my opinion such a law would be in conflict with s52(i)." 109 Similarly, in the present case, the application of State laws by s4(1) of the Commonwealth Application of Laws Act was expressly subject to an exception with respect to laws that imposed taxation. Accordingly, no Commonwealth law restricted its ability to transfer to a new owner land which was not, at the time of transfer, liable for land tax. The liability to such tax would, to use the words of Walsh J again, "limit the extent and the value of the rights which could be enjoyed by a new owner to whom the Commonwealth transfers the land". 110 In my opinion, this contention in the Respondent's Notice should be rejected.

The Mirror Taxes Legislation 111 In the alternative, the Respondent relied on the applicability of a cooperative scheme adopted by the Commonwealth and the States in the wake of the High Court decision in Allders. This scheme comprises the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) (the "Commonwealth Mirror Taxes Act"); the Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW) (the "State Mirror Taxes Act") and the Commonwealth Places (Mirror Taxes) Regulations 2000 (Cth) ("the 2000 Regulations"). There is also an Arrangement between the Governor General of the Commonwealth of Australia and the Governor of the State of New South Wales in relation to the Application of State Taxing Laws in, or in relation to, Commonwealth Places ("the Arrangement"). 112 The Commonwealth Mirror Taxes Act came into force on the date of its assent, which was 17 April 1998. It is pertinent to note that at the time the Act came into force, the property in question in these proceedings was no longer a Commonwealth place. The State Mirror Taxes Act came into force even later, on 2 November 1998. The 2000 Regulations were gazetted on 4 May 2000. The Arrangement between the Commonwealth and the State of New South Wales is made pursuant to s9 of the Commonwealth Mirror Taxes Act and s5 of the State Mirror Taxes Act and is dated 14 February 2002. 113 The principal operative provision of the Commonwealth Mirror Taxes Act is s6(2) which provides: "6(2) Subject to this Act, the excluded provisions of a State taxing law, as in force at any time before or after the commencement of this Act, apply, or are taken to have applied, according to their tenor, at that time, in relation to each place in the State that is or was a Commonwealth place at that time." 114 The words "excluded provisions" are defined in s6(1) in the following terms: "(1) In this section: excluded provisions , in relation to a State taxing law, means provisions of that law to the extent that they are excluded by paragraph 52(i) of the Constitution." 115 Section 3 of the Commonwealth Act provides: " State taxing law, in relation to a State, means the following, as in force from time to time: (a) a scheduled law of the State; (b) a State law that imposes tax and is prescribed by the regulations for the purposes of this paragraph.…." 116 At the time of its enactment the Commonwealth Mirror Taxes Act listed in the schedule a number of forms of taxation, including debits tax, payroll tax and stamp duty. The list did not include the LTMA or the Rating Act. The Act was extended to the LTMA and the Rating Act, pursuant to par (b) of the definition of State taxing laws set out above, by the 2000 Regulations, which came into force on 4 May 2000. Regulation 4 specifies the Land Tax Act 1956 and the LTMA 1956 as prescribed for the purposes of par (b) of the definition set out above. Regulation 2 of the regulations states: "These Regulations commence on gazettal." 117 Section 6(2) of the Commonwealth Mirror Taxes Act operates "subject to this Act". A number of provisions limit its operation. 118 Section 6(3) provides: "6(3) Subsection (2) does not extend to the provisions of a State taxing law in so far as it is not within the authority of the Parliament to make those provisions applicable in relation to a Commonwealth place." 119 Of particular relevance for the present case are s6(6) and s9, which relevantly provide: "6(6) This section does not have effect in relation to a State unless an Arrangement is in operation under section 9 in relation to the State." "9(1) The Governor General may make an arrangement with the Governor of a State in relation to the exercise or performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied laws of the State. (2) Where such an arrangement is in force, the power, duty or function may or must, as the case may be, be exercised or performed accordingly. …" 120 No provision of the Commonwealth Mirror Taxes Act states in terms that the application by that Act of a State taxing law, as a law of the Commonwealth, no longer has such effect from and after the point of time at which the property ceases to be a Commonwealth place. Nevertheless, s22 of the Commonwealth Act appears to operate on the assumption that that occurs. Section 22 provides: "22(1) This section applies if an applied law ceases, or ceased, to have effect in relation to a place at a particular time because the place ceases, or ceased, to be a Commonwealth place at that time." 121 The equivalent of s22(1) in the State Mirror Taxes Act is s13(1) which provides: "13(1) This section applies if an applied law ceases, or ceased, to have effect in relation to a place at a particular time because the place ceases, or ceased, to be a Commonwealth place at that time." 122 Section 3(1) provides a definition of "applied law" in the following terms: " applied law means the provisions of a State taxing law that apply in relation to a Commonwealth place in accordance with the Commonwealth Act. State taxing law means a State law that is a State taxing law within the meaning of the Commonwealth Act. State Law means (a) any law in force in the State …" 123 Section 13(2) then provides: "13(2) The State taxing law to which the applied law corresponded immediately before that time: (a) applies, or is to be regarded as having applied, in relation to that place from that time, and (b) is to be read and construed as though it provided expressly that it was intended to apply in relation to that place from that time." 124 There is no equivalent to this s13(2) in the Commonwealth Mirror Taxes Act. 125 The Appellant did not make a submission that s13(2) of the State Act was unconstitutional by reason of the fact that it purported to apply to a Commonwealth place as and from the time it ceased to be a Commonwealth place, on the basis of Stocks & Holdings. The Appellant's submission focused on the terminology of s13 as a matter of construction. 126 The section applies only if "an applied law ceases, or ceased, to have effect … because the place ceases, or ceased, to be a Commonwealth place …". The Appellant submitted that there was never a point of time at which a State taxing law did in fact apply to the property when it was a Commonwealth place. Accordingly, there was never a time when the law "ceased" to so apply. The same construction should be applied to s22 of the Commonwealth Act if pertinent. 127 On the view I take of the construction of the Commonwealth legislation, the State does not have to rely on s13(2) of the State Mirror Taxes Act which, if valid, operates by way of restating the effect of s6(2) of the Commonwealth Act. It is the latter which has operative effect for present purposes. 128 By force of s6(2) of the Commonwealth Mirror Taxes Act: "Land tax at such rates as may be fixed by any Act is to be levied and paid on land value of all land situated in New South Wales which is owned by tax payers …" (s7 of the LTMA ) "The land tax should be charged on land as owned at midnight on the 31st day of December immediately preceding the year for which the land tax is levied". (s8 of the LTMA ) "Land tax is payable by the owner of land on the taxable value of all land owned by that owner which is not exempt from taxation under this Act". (s9 of the LTMA ) 129 By reason of the preservation of each of these provisions of the State taxing law as laws of the Commonwealth, during the period when the property was a Commonwealth place, it is not necessary to read down the legislation in the way the legislation under consideration in Stocks & Holdings had to be read down so as never to apply to the land in question at all. 130 The Commonwealth Mirror Taxes Act preserves all relevant provisions of the State taxing law in force as Commonwealth laws, until such time as they can operate of their own force. The Commonwealth Act, on its proper construction, covers the whole of the period of invalidity, i.e. including, on the authority of Stocks & Holdings, the immediate consequences of a place ceasing to be a Commonwealth place. The Constitution does not operate to invalidate any part of the State acts. 131 Accordingly, after the time that the property ceased to be a Commonwealth place, the provisions of ss7, 8 and 9 of the LTMA and the Rating Act operated in accordance with their terms as State acts. There was no need for subsequent State legislation. Specifically, there was no need for a provision such as s13(2) of the State Mirror Taxes Act to be subsequently enacted so that the State taxing laws springs back into existence. Perhaps s13(2) was enacted out of an abundance of caution. Whatever its purpose, it is not necessary to decide upon its constitutional validity. 132 I note that in the Queensland Heritage Council case, a Commonwealth law preserved the State heritage listing of Hesketh House. However, in that case, the Commonwealth law that had that effect was repealed. In the present case the Commonwealth law continues in effect up to and until the place is no longer a Commonwealth place. There is no State law which, as such, purports to state the effect of a place ceasing to be a Commonwealth place. 133 There is an alternative route to the same result. Section 2 of the LTMA, as set out above, states that the LTMA "shall be read and construed subject to" the Commonwealth legislation "so as not to exceed the legislative power of the State". In Stocks & Holdings the equivalent provision was struck down as itself being a law with respect to a Commonwealth place. 134 On this basis, s2 of the LTMA is itself an "excluded provision", within the definition of those words in s6(1) of the Commonwealth Mirror Taxes Act and, accordingly, is enacted as a Commonwealth law by s6(2) of that Act. In Stocks & Holdings the only construction of the State Act that could make the Act there under consideration consistent with s52(i) was a construction which wholly excluded the land from the legislative scheme. That is not the case with respect to the LTMA. 135 Section 2 of the LTMA operates as a law of the Commonwealth and enables the operative provisions of the LTMA to be read down in a different way, indeed, in the way rejected in Stocks & Holdings. In par [97] above I noted that the reference to "land" in both the LTMA and the Rating Act, when considered as State acts, had to be read down so as not to apply to the land at all. However, that is not the case if those same references were to be read down in accordance with s2 of the LTMA in its incarnation as a law of the Commonwealth. It is possible, in my opinion, to construe the references to land as limited to 'land that is a Commonwealth place'. 136 The critical operative words in s2 of the LTMA are "so as not to exceed the legislative power of the State". In accordance with Stocks & Holdings those powers are restricted to the period of time that a place is a Commonwealth place, up to and including the consequences of ceasing to be a Commonwealth place. Thereafter, a State law can apply. Indeed, only a State law can apply. 137 It is apparent from the terms of s22 of the Commonwealth Mirror Taxes Act that the application of State laws as laws of the Commonwealth ceases upon a place losing its character as a Commonwealth place. Furthermore, as a matter of construction, before the invalidating effect on s2 of the LTMA Act of s52(i) of the Constitution, the LTMA does not, considered as a State law, apply to a place that is a Commonwealth place. Can a Commonwealth law - namely the adoption of s2 of the LTMA as such - operate to ensure the constitutional efficacy of the proper construction of a State law considered as a State law, for those are the terms of s2 of the LTMA, i.e. "so as not to exceed the legislative power of the State"? 138 My own provisional view is that such a law would answer the description of 'a law with respect to a Commonwealth place', in the specific context of the adoption of the LTMA as a law of the Commonwealth for purposes of the Mirror Taxes co-operative scheme. This was not, however, a matter on which this Court received submissions. In view of the conclusion I have come to above, it is not necessary to express a final opinion on the matter.

Retrospectivity 139 The Appellant raised three separate issues of retrospectivity. They were alternatives, in the sense that if the Appellant's submissions on any one of them were accepted then the Mirror Taxes Legislation would not operate with respect to the two land tax years in question. 140 The first issue of retrospectivity arose from the fact that the land was no longer a Commonwealth place as at the date of the enactment of the Commonwealth Mirror Taxes Act. The Appellant submitted that the Commonwealth had no power to pass the legislation in reliance on s52(i), which is a legislative power with respect to Commonwealth places, not with respect to former Commonwealth places. 141 There is no doubt that the Commonwealth Mirror Taxes Act purports to have such retrospective effect. Section 6(2), as fully quoted above, applies the excluded provisions of a State taxing law "in force … before or after the commencement of this Act" to a place, that "is or was a Commonwealth place" at the time that an excluded provision was in force. 142 The Appellant did not rely on any proposition that the Commonwealth could not pass retrospective legislation. Rather, it relied on the proposition that at the time of the Commonwealth Mirror Taxes Act, the land was no longer a Commonwealth place. For reasons I have already given, in my opinion, at the least a Commonwealth Act that operates up to and including the point of time that the land ceases to be a Commonwealth place, is a law with respect to a Commonwealth place. It is not properly characterised as a law with respect to a former Commonwealth place or with respect to a place that is not a Commonwealth place. In my opinion, Stocks & Holdings is authority for that proposition. 143 The reason why a State law which purported to operate immediately upon a place ceasing to be a Commonwealth place was held to be invalid in Stocks & Holdings was precisely because it was within the exclusive legislative power of the Commonwealth. Compare Polyukhovich v The Commonwealth (1991) 172 CLR 501, where a law enacted forty years after events that occurred outside of Australia was held to be a law with respect to external affairs but was not, for those members of the Court who considered the issue, supported by the "purposive" defence power (see at 531, 603, 641, 692, 715 and c/f 592-3, 684, 697). A law with respect to a place is more closely analogous to the external affairs power than to the defence power. I note that no Chapter III issues were raised in submissions to this Court. 144 The second basis on which the Appellant challenged the applicability of the mirror taxing legislation, turned on the fact that the LTMA and the Rating Act were only brought within the scope of the Commonwealth Mirror Taxes Act by a Regulation that commenced on 4 May 2000. This was after the land ceased to be a Commonwealth place and, indeed, was after each of the assessments presently in contention were issued by the Respondent. 145 The Appellant contended that, if on its proper construction the 2000 Regulation was retrospective, it was constitutionally invalid by reason of the fact that, as at that date, the property in question was not a Commonwealth place. For the reasons I have discussed above, in my opinion, the power of the Commonwealth Parliament to make laws with respect to Commonwealth places authorises legislation which has the effect of applying State laws up to and including the time at which a place ceases to be a Commonwealth place. That is, in my opinion, the effect of s6(2) of the Commonwealth Mirror Taxes Act as made applicable by the 2000 Regulations. 146 The Appellant also submitted on the construction of the legislation and of the Regulation, that the Regulation was not retrospective in effect. It invoked the principle of the law of statutory interpretation that legislation will not be construed to apply retrospectively, unless the intention that it do so appear with clarity. 147 The proposition that the law operates prospectively is an important component of the principle of the rule of law and as such constitutes one of the fundamental rights and freedoms of the citizens of Australia. The protection of fundamental rights and freedoms by the common law is secreted in the law of statutory interpretation. The presumption against retrospectivity serves this purpose. 148 In Bropho v Western Australia (1990) 171 CLR 1 at 17, the presumption against retrospectivity was identified in the six judge joint judgment of the High Court as one of the rules: "… which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result." 149 Mr N Hutley SC submitted that the 2000 Regulation was not intended to have retrospective operation by reason of the fact that it was expressed to "commence on gazettal". However, there is a clear distinction between the commencement of a statute and its application. (See Brooking J in R v Marshall; ex parte Baranor Nominees Pty Ltd [1986] VR 19 at 24.) The time of commencement is not determinative, nor in my opinion particularly suggestive, of the temporal operation of a legislative instrument. For that one must look to the operative provisions of the instrument, applying the common law presumption against retrospectivity. 150 The Solicitor submitted that once the 2000 Regulation was made, the Commonwealth Mirror Taxes Act operates in accordance with its terms with retrospective effect. He relied on the terms of s6(2). 151 Section 6(2) does apply, as a law of the Commonwealth, a State taxing law "as in force at any time before or after the commencement of this Act". Furthermore, s6(2) extended the operative verb in the provision beyond the form "applied … at that time" (being the time at which the State law is "in force") to encompass the past tense: "are taken to have applied … at that time". Finally, s6(2) extends the places to which the law is to so apply beyond a place that "is" a Commonwealth place at that time, to encompass a place that "was" a Commonwealth place at that time. 152 The retrospective intent of the statute is reinforced by the operative date for applied laws found in s7 of the Commonwealth Act which provides: "7(1) An applied law does not have effect in relation to an amount that would (apart from this subsection) have become due for payment before 6 October 1997 under the applied law." 153 The date of 6 October 1997, was the date upon which the Treasurer of the Commonwealth announced the legislative scheme which had been developed between the Commonwealth and the States, to overcome the decision in Allders. It is for that reason that the imposition of taxes dates only from 6 October 1997. 154 There can be no doubt that the clear and unambiguous words, required to overcome the common law presumption, are present. The issue for present purposes, however, is whether that is so for all State taxing taxes, whether made applicable at the time or subsequently. The State laws which are made applicable by s6(2) are identified as each "State taxing law". As noted above, those words are defined in s3 to include laws "as in force from time to time" in two pertinent categories. 155 First, pursuant to par (a) "a scheduled law of the State". The laws identified in the schedule encompass payroll tax, debits tax, financial institutions, duty and stamp duties and were the subject of express announcement by the Treasurer of the Commonwealth on 6 October 1997. There is no doubt about the retrospective intent with regard to laws within par (a) of the definition. 156 These proceedings, however, are concerned with par (b) of the definition of State taxing law, which extends to "a State law that imposes tax and is prescribed by the regulations for purposes of this paragraph". This composite phrase is qualified by the introductory words of the definition "as in force from time to time". The phrase "as in force" in this legislation is generally employed with respect to a State Act being in force as a State Act. That is how it is used in s6(2) itself and in par (a) of the definition of State taxing laws. With respect to par (b) of the definition of State taxing law, that meaning of the introductory words "as in force from time to time" plainly attaches to the first of the two conditions, namely "a State law that imposes tax". The issue is whether or not the second of the two conditions i.e. "prescribed by the regulations" is similarly so qualified, so that at a time when no regulation was in existence, the combined condition in par (b), i.e. both a "State law" and a 'prescription by regulation', cannot be said to be "in force" as at the relevant time. 157 The regulation making power itself indicates that the Parliament intended regulations under the Act to be capable of retrospective effect. The regulation making power is found in s25 and is in the following terms: "25(1) The Governor General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Subsection 48(2) of the Acts Interpretation Act 1901 does not apply to regulations made under this Act." 158 Section 25(2) expressly abrogates s48(2) of the Acts Interpretation Act 1901 which provides: "48(2) A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result: (a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person; or (b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification." 159 The intention that regulations may have retrospective effect is manifest. 160 There may be sufficient ambiguity for purposes of s15AB of the Acts Interpretation Act 1901 (Cth) to justify resorting to extrinsic materials. The Explanatory Memorandum for the Commonwealth Mirror Taxing Act states in par 1.118 with respect to par (b) of the definition of "State taxing law": "There is flexibility in the legislation to include other State laws at a later date. Such later prescription of other taxing laws would effectively affect State revenues concerned as from 6 October 1997, the date of the Government's announcement. That is proposed to be done by means of the regulations." 161 On the other hand, the identification of 6 October 1997, as the furthest back that retrospectivity will extend, is itself of significance. That was the day on which the public was informed that a Commonwealth tax would be imposed to replace the existing State taxes. From that date, the sense of injustice often associated with retrospective legislation can be said to be attenuated by reason of the notice. The very fact that retrospectivity is not back dated before this time is, in effect, an application of the principle underlying the legal presumption against retrospectivity. This is affirmed by other parts of the Explanatory Memorandum which indicate the significance of the announcement. The Explanatory Memorandum notes at p31: "On 6 October 1997 the Treasurer announced that a legislative solution would be developed and that taxpayers should continue to make payments to State revenue authorities as if State taxes were still valid. Such prepayments would be credited against the liability for Commonwealth mirror taxes." 162 This important aspect of the legislative scheme could only have effect with respect to the taxes that were then known to be the subject of the scheme i.e. those that are scheduled to the Act. 163 The task of the courts in the process of statutory interpretation, is to interpret the words used by the Parliament. It is not to divine the intent of the Parliament (State v Zuma (1995) 4 BCLR 401 at 412; Matadeen v Pointu [1999] 1 AC 98 at 108). The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Re Boulton; ex parte Beane (1987) 162 CLR 514 at 518; Stock v Frank Jones (Tipton) Limited [1978] 1 WLR 231 at 236; Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D.) 164 As Griffith CJ said in Richardson v Austin (1911) 12 CLR 463 at 470: "[A]s to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in the Statute, and then proceed to find it." 165 In Re Boulton; ex parte Beane, even an express statement, equivalent in force to the extract from the Explanatory Memorandum I have quoted above, did not prevail. The High Court said at 518: "[The Second Reading Speech by the Minister] quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight and inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law." 166 The same result has been reached in other cases of apparent mistakes on the part of a drafter who failed to employ language which implemented the obvious purpose of the statute (see e.g. R v Young (1999) 46 NSWLR 681 esp at [33]-[37]). (See also Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 at [132] per McHugh J.) 167 I have not found this issue of construction easy to resolve. However, I have come to the conclusion that the introductory words in the definition of "State taxing law", namely "as in force from time to time" refer to the "State law that imposes tax" in its operation as a State law. It is not necessary for a regulation to have been "in force" at the relevant time for the "State law" to fall within the definition of a "State taxing law". Nor does the word "is" in par (b) of the definition before the word "prescribed" relate to any specific point of time. The word "is" is used in the sense of "comes to be". 168 I have come to this conclusion by reason of the combined effect of · the manifest retrospective effect of s6(2), the key operative provision; · the indication that retrospectivity would extend to matters to be prescribed by regulation in s25(2); · the use of the words "as in force", particularly in s6(2), to apply to a State act being in force as a State Act; · the overriding purpose to validate State taxes in a spirit of co-operative federalism. 169 This result is, in my opinion, sufficiently "clear and unambiguous" not to require resort to the Explanatory Memorandum. (See Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 550.) However, if I were of the view that there was sufficient ambiguity, the conclusion would be reinforced by the express terms of that Memorandum. 170 The third issue of retrospectivity raised by the Appellant arose from the fact that the Arrangement between the Governor-General of the Commonwealth and the Governor of the State of New South Wales, to which I have referred above, was not executed until 14 February 2002. Not only was this after the relevant tax years, it was after the date of the decision of Mason P in the present proceedings. 171 The Appellant relied on the constitutional argument that it had put with respect to the other two aspects of retrospectivity. It submitted that the Commonwealth Mirror Taxes Act could not operate with respect to the land because that land was not a Commonwealth place at the time the Arrangement came into force. For the same reasons as I have indicated earlier, this submission should be rejected. 172 The Appellant also relied on a construction argument, based on s6(6) of the Commonwealth Act which, to reiterate, provides: "This section does not have effect in relation to a State unless an Arrangement is in operation under s9 in relation to the State." 173 This provision, of course, is reinforced by the introductory words of the operative provision of the Act i.e. s6(2) which are: "Subject to this Act …". 174 The learned Solicitor-General directed attention to a note to s2 of the State Mirror Taxes Act to the following effect: "The operation of this Act and the Commonwealth Act will depend on the making of an arrangement under section 5 of this Act and section 9 of the Commonwealth Act. As soon as the arrangement is made, the State taxing laws are taken to have always applied in relation to Commonwealth places in the State, but not so as to impose any liability for tax for things that happen before 6 October 1997." 175 The Parliament of New South Wales understood the co-operative legislative scheme to have the effect that, upon an Arrangement being executed, the State taxing laws operated with retrospective effect by reason of the Commonwealth Act. 176 No such note appears in the Commonwealth Act, but in the context of what was clearly a co-operative scheme it is not, in my opinion, impermissible to have regard to this indication. However, it is not necessary to do so. 177 The terms of s6(6) deprive s6(2) of "effect in relation to a State". That consequence applies not only to a State law, such as the land tax, which is prescribed subsequently by regulation, but also to the payroll tax, stamp duty, debits tax and financial institution duty statutes which are expressly scheduled to the Act. As at the date on which the Commonwealth Mirror Taxes Act was passed, there was no "Arrangement" between the Commonwealth and any State in existence. 178 The express terms of s6(2) and s7(1) contemplate a retrospective operation of the scheme. It cannot have been the intention of the Commonwealth Parliament that the words "is in operation under s9" in s6(6) mean that s6(2) has no effect until such time as an Arrangement with a particular State is in existence. Section 7(1) would have no work to do if that were so. Indeed, as I understand the position, the whole scheme would fail. As a matter of construction I can see no proper basis for distinguishing between the two paragraphs of the definition of State taxing law in this regard. 179 Section 6(6) must be construed so as to require an Arrangement under s9 to exist, but that, once such an Arrangement does exist, the Commonwealth Mirror Taxes Act operates in accordance with its terms, so that it applies State taxing laws that are in force "at any time before or after the commencement of the Act" and extend to a place that "was" a Commonwealth place but which is no longer a Commonwealth place. The degree of retrospectivity is of course limited by s7(1) identifying the operative date of 6 October 1997.

Conclusion 180 The Respondent's Notice of Contention should be upheld on the basis of the Mirror Taxes Legislation. 181 For the above reasons, the appeal should be dismissed with costs. 182 STEIN JA: I agree with the Chief Justice. 183 HEYDON JA: I agree with the Chief Justice. **********

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