RE MINISTER FOR RESOURCES; EX PARTE CAZALY IRON PTY LTD [2007] WASCA 175 (28 August 2007) - WASCA 2007 case summary — Zoe

[137]

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council ((1976) [1976] HCA 58; 136 CLR 106 at 109); Salemi v MacKellar (No 2) ((1977) [1977] HCA 26; 137 CLR 396 at 419); R v MacKellar; Ex parte Ratu ((1977) [1977] HCA 35; 137 CLR 461 at 476); Heatley v Tasmanian Racing and Gaming Commission ((1977) [1977] HCA 39; 137 CLR 487 at 498-499); FAI Insurances Ltd v Winneke ((1982) [1982] HCA 26; 151 CLR 342 at 360, 376-377); Annamunthodo v Oilfields Workers' Trade Union ([1961] AC 945). ...

The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi (No 2) (at 404) Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (at 508-509); FAI (at 348, 351-352, 369, 412); Attorney-General (Hong Kong) v Ng Yuen Shiu ([1983] 2 AC 629 at 636). The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service ([1985] 1 AC 374 at 401). The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

[139]

"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke ((1982) [1982] HCA 26; 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412)). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar [No 2] ((1977) [1977] HCA 26; 137 CLR 396, at 452); Kioa v West ((1985) [1985] HCA 81; 159 CLR 550, at 563)). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (Cth) ((1963) [1963] HCA 41; 113 CLR 475, at 504)), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

[162]

" ... what Brennan J said about 'information that is credible, relevant and significant' takes its meaning from the point his Honour had made [at 628] only a few sentences earlier: that '[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made'. Moreover, what is meant by 'credible, relevant and significant' must be understood having regard also to the emphasis that his Honour had given earlier in his reasons [at 622] to the fundamental point that principles of natural justice, or procedural fairness, 'are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise'. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is 'credible, relevant and significant' are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached."

[266]

"Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. 'Persons', says Coke, 'are of two sorts, persons natural created of God, and persons incorporate or politique created by the policy of man (and therefore they are called bodies politique), and those be of two sorts, viz, either sole, or aggregate of many.' A corporation aggregate is an incorporated group of co-existing persons, and a corporation sole is an incorporated series of successive persons.

The former is that which has several members at a time, while the latter is that which has only one member at a time. Corporations aggregate are by far the more numerous and important. Examples are a registered company, consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for example, is said to be a corporation of this kind at common law, while the Postmaster General, the Solicitor to the Treasury, the Secretary of State for War, the Minister of Town and Country Planning, and the Minister of Education have been endowed by statute with the same nature.

... In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever."

[300]

"[Mr Stevens] said that the major companies such as BHP and Rio would be using the policy as a defence. He said that the policy that had been applied since the 1960's was to give the major companies accommodation in return for their development of the Pilbara iron ore industry. He said that the major's [sic] attitude was that this had gone on for many years and had been an understanding that they had had with Government over many years. He said that they felt that if they had received 11th extension of term [sic] on that basis why shouldn't they receive the 12th extension of term? If the policy was going to be changed then they needed to have notice of it.

He said that when you look at Section 102A of the Mining Act the policy is clearly expressed that iron ore tenements should be given exemptions from expenditure. He said that the majors were arguing that they had made massive decisions in relation to investment on the back of that policy and it would be unfair to change it now.

He said however that the policy was now being reviewed. He said that this started several years ago when the Department had noticed that some junior companies were started [sic] to move into the iron ore sector as a result of higher iron ore prices. He said that the policy review had moved at glacial speed up until about a year ago when FMG had started writing in to the Minister complaining that BHP were being given extensions of term and exemption applications being granted [sic] for no reason. He said that FMG had plainted two tenements which were exploration licences and were asking the Minister not to grant extensions of term or exemptions from expenditure obligations. These were not under any State agreement. BHP got wind of this and applied for mining leases over the area, which FMG has objected to. FMG is objecting on the grounds that it would not be in the public interest to grant the tenements. ...

...

I asked whether it was a Departmental policy rather than a Government policy.

[Mr Stevens] said it was a Departmental policy but one that the government knew about. He said in particular it was a DRD policy. When these renewal applications or exemption forms came in he said that DoIR (the old DME) used to ask DRD whether they had any problem with it. They would said [sic] no and then DME would process the application.

...

He made the point that it only applied outside the State agreement areas. The policy was that the majors had to demonstrate an inferred resource but not more than that. Once an inferred resource had been demonstrated then they could treat the tenement as a 'holding tenement'. When retention licences came in 1994 no-one used them because of native title difficulties. The old policy in relation to iron ore tenements continued.

I asked [Mr Stevens] how he thought the policy would play with Government in the sense that how would Government react to it? He said that he did not know.

He said the policy had been spectacularly successful in helping set up the iron ore industry and keep it running.

I said to him that I did not think it was relevant to the Section 111A issue. He said it wasn't directly relevant but it would come into consideration to the extent that there was an allegation that Rio had not done any work on the tenement. Rio would say 'of course we didn't do any work - we didn't have to because we had an understanding with the Government about these matters'. That understanding had been in place for a long time and if it was going to be changed they should have been given notice of it.

..."

Legislation Cited (12)

Amendment (Mining) Act 1982

Amendment Act 1987

Amendment Act 1994

Information Act 1992

Sector Management Act 1994

Amendment (Mining) Act 1981

Ore (Rhodes Ridge) Agreement Authorisation Act 1972

Act](/cgi-bin/viewdoc/au/legis/wa/consol_act/ma197881/) Amendment Act 1993

Amendment Act 1985

Amendment Act 2004

(Validation and Amendment) Act 1986

Information Act 1982

Cases Cited (71)

RE MINISTER FOR RESOURCES; EX PARTE CAZALY IRON PTY LTD [2007] WASCA 175 (28 August 2007)

12 The power conferred on the Minister by s 111A may only be exercised if the Minister's reasons are "in respect of" the whole or part of the land to which the application relates. The words "in respect of" have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer. See McDowell v Baker [1979] HCA 44; (1979) 144 CLR 413 at 419. There can be no doubt that there is a connection between the land to which Cazaly's application relates and the Minister's decision.

14 The expression "on reasonable grounds" imports an objective test. This is explained in George v Rockett [1990] HCA 26; (1990) 170 CLR 104, a case in which the High Court considered a provision in the Queensland Criminal Code which provided "if it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house ... (a) Anything in respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have committed ..." then the Justice may issue a warrant directing a police officer to search the house. In the joint judgment, the Court said at 112:

15 The consequence is that when the Minister's decision comes under review, as it does in these proceedings, it is not enough that the Minister should think he had reasonable grounds in the public interest that the application should not be granted: McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549 at [10] per Gleeson CJ and Kirby J; and see the now orthodox view in the dissenting speech of Lord Atkin in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 at 231 and 247.

19 The expression "in the public interest", when used as the criterion for the exercise of a statutory discretion, usually imports a discretionary value judgment confined only by the subject matter and the scope and purpose of the legislation. The ascertainment of the subject matter and the scope and purpose of the legislation will enable a court to determine whether reasons which are given are definitely extraneous to any object a legislature could have had in view. See O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216, and Water Conservation Commission v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505: McKinnon's case per Hayne J at [55]: Visnic v Australian Securities and Investments Commission [2007] HCA 24; (2007) 81 ALJR 1175 at [36] per Kirby J. Although Jacobs J said in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 at 487, that the public interest is an "indivisible concept", there may be competing aspects to the public interest. See Re Queensland Electricity Commission; Ex parte Electrical Trades Union [1987] HCA 27; (1987) 61 ALJR 393 at 400 and the examples given by Jacobs J in (). Jacobs J in was considering the meaning of the words "public interest" in a regulation which required a Warden to recommend rejection of an application if, in his opinion, "the public interest or right will be prejudicially affected" by its grant. Jacobs J, at 487, referred to the width of the expression "public interest", and noted that the public interest in that case could tell against the grant of the mining lease even though particular interests of an individual were the only interests primarily affected.

63 The Mining Act confers on the holder of an exploration licence (and the holder of a mining lease) rights which are significantly more extensive than those conferred on the holders of other tenements. See Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195, where Brinsden J said, at 204:

69 Section 59(6) of the Mining Act does not expressly state the matters which the Minister is entitled or obliged to take into account in deciding whether to grant or refuse an application for an exploration licence. The factors which the Minister is entitled or obliged to consider (in addition, of course, to the report, including the recommendation, of the Mining Registrar or the Warden) are to be ascertained by implication from the subject matter, scope and purpose of the provisions of the Act relating to exploration licences in the context of the Act as a whole. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40.

70 The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State. See The Commonwealth of Australia v The State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 per Kirby J at 450 - 451 [172]. Part III of the Act specifies land which is "open for mining"; that is, relevantly, land which may be made the subject of an application for a mining tenement, subject to and in accordance with the Act. Part III distinguishes between and makes particular provision for Crown land, public reserves and private land. The primary object of the Act is sought to be carried into effect by making available specific tenements for, relevantly, prospecting, exploration and mining, subject to reasonably stringent conditions, including conditions with respect to expenditure, the reporting of the discovery of minerals of economic interest, and the rehabilitation of the surface of land which is disturbed in the course of operations conducted under the tenement in question. See Nova Resources NL v French (1995) 12 WAR 50 per Rowland J (with whom Kennedy and Pidgeon JJ agreed) at 57 - 58.

"The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) [1919] HCA 41; 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker."

77 In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, Gibbs J observed, at 118, that it is not uncommon for statutes to provide that a decision-maker shall or may take certain action if satisfied of the existence of specified matters. After noting that whether a decision under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the decision-maker is required to be satisfied, his Honour said, at 118 - 119:

78 In my opinion, s 111A(1)(c) imposes on the Minister an obligation to assess whether or not it is in the public interest that, in respect of the whole or any part of the relevant land, the land should not be disturbed or the application should not be granted. Subject to the existence of reasonable grounds for the Minister's satisfaction, it is the existence of his or her satisfaction that it is in the public interest that the relevant land should not be disturbed or the application should not be granted which enlivens the power. Compare Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ at 302 - 304; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 at 90 - 91.

"... the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning [(1947) [1947] HCA 21; 74 CLR 492 at p 505], per Dixon J."

81 Accordingly, whether it is "in the public interest", within s 111A(1)(c), that any land should not be disturbed or an application should not be granted in respect of any land involves a judgment about which reasonable minds may well differ. Compare Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 per Lockhart J at 59; McKinnon at 1561 - 1562 [55].

"The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds (Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 574 - 575; Nakkuda Ali v MF De S Jayaratne [1951] AC 66; Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952)."

91 Cazaly submitted that the maxim expressio unius est exclusio alterius (a rule of statutory construction to the effect that the express mention of one thing is the exclusion of another) should be applied to confine the scope of s 111A(1)(c) by reference to s 111A(1)(d). It is established that the maxim expressio unius must be applied with care. It is not of universal application and applies only when the intention it expresses is apparent from the language of the provision. See Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW [1982] HCA 2; (1982) 148 CLR 88 per Stephen, Mason, Aickin, Wilson and Brennan JJ at 94. As their Honours noted:

Earlier in his reasons, Franklyn J cited, at 324, a passage from the judgment of Jacobs J in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 at 487 as to the meaning of the concept of "public interest", and said, at 325, that the observations of Jacobs J appeared appropriate to the concept of "public interest" in the context of the Mining Act. The passage from the judgment of Jacobs J was this:

136 A decision-maker may take into account a policy if the policy is consistent with the statute under which the relevant power is conferred, and if the policy does not preclude the decision-maker from taking into account relevant considerations or involve the decision-maker in taking into account irrelevant considerations. See Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277, where Gleeson CJ said, at 289 [24]:

154 Section 102(2)(e) is distinct from s 102(2)(f). Section 102(2)(f) contemplates, for example, that it may not be economic for the holder of a mining tenement to undertake "mining operations" (see the definition in s 8(1)) separately in relation to a particular mineral deposit, but it may become economic at a later stage to carry out mining operations on that deposit in conjunction with mining operations on other mineral deposits of the holder. Another example contemplated by s 102(2)(f) is that although it may be economic for the holder of a mining tenement to undertake "mining operations" immediately, a better use of existing infrastructure and vast reserves over time may require that mining operations in relation to the mineral deposit in question be deferred. A subjective test may be applied in relation to s 102(2)(f). By contrast, s 102(2)(e) imports an objective test. See Re Plutonic Operations Ltd; Ex parte Roberts [1999] WASCA 133 per Malcolm CJ (with whom Pidgeon and Ipp JJ agreed) at [50].

163 The term "exceptional circumstances" in s 61(2)(b) was not defined. The ordinary meaning of "exceptional" is "forming an exception or unusual instance; unusual; extraordinary". See The Macquarie Dictionary (4th ed, 2005) at 492; R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at 208. The term "exceptional circumstances" in s 61(2)(b) must be construed in the context of ss 65, 102, 102A and 111 and the evident object of the Parliament in enacting those provisions.

(1979) 144 CLR 413

(2006) 80 ALJR 1549

(1975) 132 CLR 473

(1987) 61 ALJR 393

(1995) 12 WAR 50

(1994) 11 WAR 315

(1997) 18 WAR 320

(1999) 197 CLR 611

(1982) 148 CLR 88

(2003) 216 CLR 277

(1997) 187 CLR 384

(1978) 142 CLR 1

(2003) 77 ALJR 1165

(2005) 148 FCR 446

(2003) 216 CLR 212

(2003) 214 CLR 1

(2000) 205 CLR 337

(2001) 205 CLR 507

(2002) 210 CLR 438

(1985) 159 CLR 550

(1990) 169 CLR 648

(1995) 183 CLR 273

(1990) 170 CLR 104

(1992) 28 NSWLR 125

(1989) 168 CLR 210

(1947) 74 CLR 492

(2007) 81 ALJR 1175

(1996) 185 CLR 149

(1991) 7 WAR 375

(1986) 162 CLR 24

(1999) 196 CLR 392

(1976) 135 CLR 110

(1997) 187 CLR 297

(1999) 46 NSWLR 78

(1995) 56 FCR 50

(1973) 128 CLR 557

(2001) 206 CLR 323

(1997) 191 CLR 85

(2002) 123 FCR 499

(1990) 170 CLR 1

(2006) 81 ALJR 515

(1987) 9 NSWLR 268

(2001) 75 ALJR 982

(1969) 122 CLR 546

(1999) 85 FCR 286

(1997) 18 WAR 408

(2005) 225 CLR 88

(2002) 115 FCR 561

(1951) 83 CLR 521

(1985) 159 CLR 22

(2003) 211 CLR 441

(1994) 49 FCR 576

RE MINISTER FOR RESOURCES; EX PARTE CAZALY IRON PTY LTD [2007] WASCA 175 (28 August 2007)

At a glance

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Judgment (354 paragraphs)

Legislation Cited (12)

Cases Cited (71)

RE MINISTER FOR RESOURCES; EX PARTE CAZALY IRON PTY LTD [2007] WASCA 175 (28 August 2007)