SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: BHP Coal Pty Ltd & Ors v Minister for Natural Resources, Mines, Energy and Minister for Trade & Anor [2011] QSC 246 PARTIES: BHP COAL PTY LTD ACN (first applicant) and QCT MINING PTY LTD ACN (second applicant) and MITSUBISHI DEVELOPMENT PTY LTD ACN (third applicant) and QCT INVESTMENT PTY LTD ACN (fourth applicant) and BHP QUEENSLAND COALINVESTMENTS PTY LTD ACN (fifth applicant) and UMAL CONSOLIDATED PTY LTD ACN (sixth applicant) and QCT RESOURCES PTY LTD ACN (seventh applicant) v MINISTER FOR NATURAL RESOURCES, MINES, ENERGY AND MINISTER FOR TRADE (first respondent) and STATE OF QUEENSLAND (second respondent) and RIO TINTO ALUMINIUM LTD ACN (third respondent) and ALCAN SOUTH PACIFIC PTY LTD ACN (fourth respondent) FILE NO: SC No of 2010 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Division Application for judicial review Supreme Court of Queensland

2 2 DELIVERED ON: 18 August 2011 DELIVERED AT: Brisbane HEARING DATE: 22 February 2011 JUDGE: Daubney J ORDER: [1] There will be the following declarations: 1. A declaration that the applicants are entitled to the renewal of the SCMLs in accordance with clause 8(2) of Part III of the Agreement; 2. A declaration that upon any renewal of the SCMLs in accordance with clause 8(2) of Part III of the Agreement, the provisions of the Agreement: (a) continue to apply to the SCMLs as renewed; (b) except to the extent expressly exempted by the MRA, prevail over the provisions of the MRA to the extent of any inconsistency. [2] I will hear the parties as to any further orders, and as to costs. CATCHWORDS: ADMINISTRATIVE LAW JUDICIAL REVIEW GENERALLY where the applicant seeks a statutory order of review and order for review pursuant to the Judicial Review Act 1991 (Qld) whether the Mineral Resources Act 1989 (Qld) operated to repeal or abrogate rights of renewal conferred under the special coal mining leases whether the applicants are entitled to a renewal of the special coal mining leases in accordance with the Agreement Acts Interpretation Act 1954 (Qld), s 20A(2)(a) Central Queensland Coal Associates Agreement Act 1968 (Qld), ss 2,3,4 Judicial Review Act 1991 (Qld) Mineral Resources Act 1989 (Qld), ss 1.5, 1.7, 4, 7.43, 7.43A, Schedule 2 Offshore Minerals Act 1998 (Qld), s 446, Schedule 4 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited Commonwealth Aluminium Corporation Ltd v Attorney General [1976] Qd R 231, considered Commonwealth Custodial Services v Valuer General [2007] NSWCA 365, cited

3 3 COUNSEL: SOLICITORS: Deputy Federal Commissioner of Taxes (SA) v Elder s Trustee and Executor Co Ltd (1936) 57 CLR 610, cited Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, cited Goodwin v Phillips (1908) 7 CLR 1, cited Re Cape Flattery Silica Mines Pty Ltd (unreported, Supreme Court of Queensland, Byrne J, 10 February 1994), cited Saraswati v The Queen (1991) 172 CLR 1, cited S Doyle SC with S Brown for the applicants W Sofronoff QC SG with G Del Villar for the first and second respondents J D McKenna SC with A M Pomerenke for the third and fourth respondents Freehills for the applicants Crown Solicitor for the first and second respondents Allens Arthur Robinson for the third and fourth respondents [3] The principal proceeding in this matter is an application for a statutory order of review and order for review pursuant to the Judicial Review Act 1991 (Qld). The dispute arises because the applicants, who are the holders of a number of special coal mining leases which expired by effluxion of time on 31 December 2010, claim to be entitled to renew those leases in accordance with an agreement made between their predecessors in title and the State pursuant to specific legislation, while the respondents contend that the applicants rights of renewal are found under another statutory regime. [4] There are no factual disputes between the parties. On 1 February 2011, Margaret Wilson AJA made orders to give effect to a process by which the parties could come before the Court to have what is, in essence, a question of statutory construction determined. The consequential relief sought in the principal application has been left for subsequent determination (if required). Her Honour also permitted the joinder of Rio Tinto Aluminium Ltd and Alcan South Pacific Ltd ( the RTA parties ). The RTA parties have mining leases in similar terms to those held by the applicants, and it was common ground that determination of the current questions would also determine the similar questions in relation to the leases held by the RTA parties. Accordingly, I also had the benefit of submissions by the RTA parties. Background [5] The applicants are the present participants in the Queensland Coal Associates Joint Venture. [6] On 24 December 1968, the Central Queensland Coal Associates Agreement Act 1968 (Qld) ( CQCAAA ) received royal assent. Section 2 of the CQCAAA authorised the Premier of Queensland for and on behalf of the State of Queensland to make the Agreement, a copy of which was set out in the Schedule to the CQCAAA, with the applicants predecessors in title. Sections 3 and 4 of the CQCAAA provided:

4 4 3. Executed Agreement to have force of law. Upon the making of the Agreement the provisions thereof shall have the force of law as though the Agreement were an enactment of this Act. 4. Variation of Agreement. The Agreement may be varied pursuant to agreement between the Premier of Queensland and the Companies with the approval of the Governor in Council by Order in Council and no provision of the Agreement shall be varied nor shall the powers and rights of the Companies under the Agreement be derogated from except in such manner. Any purported alteration of the Agreement not made and approved in such manner shall be void and of no legal effect whatsoever. Unless and until the Legislative Assembly, pursuant to subsection (4) of section 5 of this Act, disallows by resolution an Order in Council approving a variation of the Agreement made in such manner, the provisions of the agreement making such variation shall have the force of law as though such lastmentioned agreement were an enactment of this Act. [7] The copy of the Agreement (as reproduced in the Schedule) contained the following recitals: AND WHEREAS deposits of coal have been found to exist in a considerable part of the lands described in the aforesaid Authority to Prospect and Proclamation north of latitude twenty-three degrees (23º) south and the Companies desire to bring the said deposits into large scale production for export purposes and also to continue to search for further deposits of coal; AND WHEREAS for such purpose it is necessary to construct works for the mining, treatment and shipment of large tonnages of coal; AND WHEREAS the Companies are prepared to provide and expend the large capital amount required for these and associated purposes; AND WHEREAS the State has agreed to construct and maintain a railway hereinafter referred to and the Companies have agreed to lodge with the State certain moneys by way of Security Deposit refundable to the Companies upon the Companies offering for transportation over the railway certain annual tonnages of coal for such period and at such freight rates as are more particularly hereinafter set forth; AND WHEREAS the State is satisfied that a large capital expenditure is necessary to ensure that the coal deposits are efficiently and economically developed for export purposes for a lengthy period that that it is in the interests of the State that such coal deposits should be developed by large scale operations and that the Companies are technically capable of so developing such deposits; AND WHEREAS it is therefore desirable that in consideration of the Companies entering into obligations on their part hereinafter set out the Companies should be granted the rights, titles and privileges hereinafter mentioned. [8] Part I Clause 2 of the operative part of the Agreement contained definitions for the Agreement, including:

5 5 The Coal Mining Acts means The Coal Mining Acts 1925 to 1967 and any Act in amendment thereof or in substitution therefore and any other Act or Acts relating to coal mining; [9] Part I Clauses 3 and 5 of the Agreement provided: 3. The making of this Agreement is authorised by the Parliament of the State of Queensland expressed in an Act entitled the Central Queensland Coal Associates Agreement Act Upon the making of this Agreement the provisions thereof shall have the force of law as though enacted in the Act This Agreement may be varied pursuant to agreement between the Minister and the Companies with the approval of the Governor in Council by Order in Council and no provision of this Agreement shall be varied nor shall the powers and rights of the Companies hereunder be derogated from except in such manner. [10] Part II of the Agreement contained provisions regulating the grant by the relevant Minister of an Authority to Prospect for coal over what was described in the Agreement as the Franchise Lands. [11] Part III of the Agreement then dealt with the grant of Special Coal Mining Leases. [12] Part III Clause 1 provided, inter alia, as follows: 1. (1) From time to time during the term of the Authority to Prospect the Companies may apply in writing to the Minister for a Special Coal Mining Lease over lands comprised in the Authority to Prospect at such time. Such application shall be accompanied by a proper description and plan of the lands to be included in such Special Coal Mining Lease. If such application is in accordance with the provisions of this Agreement, the Minister shall forthwith cause to be issued to the Companies a Special Coal Mining Lease over the lands so applied for. (2) The initial term of a Special Coal Mining Lease shall commence on the date of the grant thereof and shall expire on the Initial Expiry Date. (The Initial Expiry Date was earlier defined as 31 December 2010.) [13] By Part III Clause 4, every special coal mining lease was required to be in the form and contain the conditions set out in the Third Schedule... with such modifications thereof as may be necessary to meet the circumstances of any particular case. [14] Part III Clauses 7 and 8 provided: 7. (1) The Companies shall until the Initial Expiry Date pay a rent for all land held by them under a Special Coal Mining Lease or under any application for a Special Coal Mining Lease at the rate of one dollar ($1) per acre per annum as presently prescribed by subsection (4) of section 11 of the Coal Mining Acts.

6 6 (2) Upon each renewal of a Special Coal Mining Lease pursuant to Clause 8 of this Part, the Companies shall pay such rent thereunder as shall be agreed upon between them and the Minister and failing such agreement a rent equivalent to that as then prescribed by the Coal Mining Acts. (3) Such rent shall be paid annually in advance on or before the first day of January in each year. 8. (1) The period of a Special Coal Mining Lease granted hereunder shall be from the date of application therefore for such period as the Companies may require or until the Initial Expiry Date, whichever shall first occur and shall be renewable for two further periods, each not exceeding twenty-one (21) years as the Companies may require. (2) If the Companies at least three (3) months prior to the Initial Expiry Date of the lease satisfy the Minister that the Companies have duly performed and observed each and every of the conditions, covenants, and stipulations of the lease and have duly performed and observed all provisions of this Agreement applicable to such lease and that the Companies are in lawful possession thereof, the Minister shall grant a renewal of the term of such lease to the Companies for such further period as the Companies may require but not exceeding twenty-one (21) years on the same conditions and provisions as applied at the expiration of the original term except that the rent and royalty shall be that rent and royalty as is respectively provided by Clauses 7 and 10 of this Part. (3) The provisions of the preceding Sub-clause (2) shall apply mutatis mutandis to a further renewal of the term of the lease referred to therein for such further period as the Companies may require but not exceeding twenty-one (21) years. (4) Every such renewal of lease shall remain subject to all existing mortgages, encumbrances, liens and charges. [15] Part III Clause 14 provided: 14. The provisions of the Coal Mining Acts except as far as they are varied or modified by this Agreement shall apply to this Agreement and to any Special Coal Mining Lease granted hereunder: Provided that should the Companies have carried out the terms of this Agreement the sections of the Coal Mining Acts relating to labour and expenditure shall not apply to any Special Coal Mining Lease granted hereunder. [16] The third schedule to the Agreement contained the form of standard clauses for a special coal mining lease. The term specified in the form was forty-two (42) years from the 1 st day of January 1969 which said term shall be renewable for further periods and upon such terms as are expressed in the said the Central Queensland Coal Associates Agreements Act The form of lease expressly provided, in its first schedule, that: The conditions of the within special coal mining lease shall be those set out in the Agreement, the schedule to the Central Queensland Coal Associates Agreement Act 1968.

7 7 [17] The applicants predecessors in title executed the Agreement with the second respondent. It was common ground that I should regard the applicants and the second respondent as the present parties to the Agreement. [18] The first respondent is the Minister responsible for the administration of both the CQCAAA and the Mineral Resources Act 1989 (Qld) ( MRA ). [19] The applicants hold four special coal mining leases pursuant to the Agreement ( SCMLs ). The applicants lodged applications for the renewal of each of the SCMLs in June and October It is not suggested that these applications were not in time. [20] It was agreed before me that the applicants: (a) (b) (c) had duly performed and observed each and every one of the conditions, covenants and stipulations of each of the SCMLs; had duly performed and observed all provisions of the Agreement applicable to the SCMLs; were at all material times in lawful possession of the SCMLs. [21] It was also agreed that as at 23 December 2010, the first respondent was satisfied of each of these matters such as to satisfy the requirements for the renewal of the SCMLs under the CQCAAA and Part III Clause 8(2) of the Agreement (if they apply). [22] The applicants contend that they are entitled to have the SCMLs renewed in accordance with the provisions of the Agreement made under the CQCAAA. The respondents, however, contend that renewals of the SCMLs must occur under, and in accordance with the provisions of, the MRA. This is the issue for determination on this application. Mineral Resources Act 1989 [23] The MRA was assented to on 25 October Its operative sections were proclaimed to commence on 1 September [24] Section 1.5 of the MRA provided that the Acts specified in the First Schedule are repealed as and to the extent indicated therein. The CQCAAA was not mentioned in the First Schedule. [25] Section 1.7 of the MRA provided: 1.7 Savings, transitional and validation. The savings, transitional and validation provisions as set out in the Second Schedule shall have effect as therein provided. [26] Clause 3 in the Second Schedule to the MRA contained the following relevant provisions: 3. Mining leases. (1) (a) Notwithstanding that the provisions of section 7.1, 7.2 or 7.6 may be contravened or not complied with, a lease that is

8 8 (i) a gold mining lease, special gold mining lease, mineral lease, special mineral lease, dredging lease, coal mining lease, special coal mining lease or mining lease granted or deemed to have been granted under the repealed Acts or any other Act relating to mining or any other such lease or mining lease; or (ii) a mining lease, special bauxite mining lease, special mineral lease, coal mining lease or special coal mining lease granted pursuant to any of the Acts specified in the following table, and that is current immediately prior to the commencement of this Act shall, upon that commencement be deemed to be a mining lease granted for the balance of its term current at that date.... (c) Except as provided in subclauses (3) and (8), the holder of a lease referred to in paragraph (a) (ii) immediately prior to the commencement of this Act shall hold the mining lease subject to (i) the provisions of, and the conditions imposed under, this Act; (ii) the covenants and conditions to which it was subject at that commencement; And (iii) the provisions of the Act under which it was granted, but if a provision, covenant or condition referred to in provision (ii) or (iii) is inconsistent with this Act or a condition thereunder, that provision, covenant or condition, to the extent of the inconsistency shall prevail. TABLE The Alcan Queensland Pty. Limited Agreement Act of 1965 Aurukun Associates Agreement Act 1975 Central Queensland Coal Associates Agreement Act The Commonwealth Aluminium Corporation Pty. Limited Agreement Act of 1957 Queensland Nickel Agreement Act Mount Isa Mines Limited Agreement Act 1985 Queensland Cement & Lime Company Limited Agreement Act 1977 The Thiess Peabody Mitsui Coal Pty. Ltd. Agrements Acts, (2) The provisions of this Act relating to rental payable under this Act in respect of mining leases shall prevail over conflicting provisions that applied prior to the commencement of this Act from the times as prescribed by subclause (3). (3) Rental payable in respect of a lease that, pursuant to subclause (1), is deemed to be a mining lease shall be payable (a) until the mining lease is first renewed after the commencement of this Act, in accordance with any provisions applying in respect thereto prior to that commencement; and

9 9... (b) in respect of the period of any such renewals thereof, in accordance with the provisions of this Act. (8) The provisions of this Act relating to the payment of royalties shall prevail over conflicting provisions of any other Act or conflicting terms and conditions of any lease referred to in subclause (1). [27] Clearly enough, each of the SCMLs fall within clause 3(1)(a)(ii), and, upon commencement of the MRA, each was deemed to be a mining lease granted for the balance of its term. [28] Section 7.43 of the MRA (as enacted) provided: 7.43 Renewal of mining lease. (1) The holder of a mining lease, including a mining lease that is subject to a condition referred to in section 7.42, may, at least 6 months (or such shorter period as the Minister in a particular case allows) prior to and not more than 12 months before the expiration of the current term of the mining lease, make application for renewal of that mining lease. (2) An application for renewal of a mining lease shall (a) be made in writing in the prescribed manner and form to the mining registrar for the mining district in which is situated the land the subject of the mining lease; (b) be accompanied by the prescribed application for renewal fee. (3) If, in respect of an application for the renewal of a mining lease, the Minister is satisfied that (a) in a case where the mining lease is subject to a condition that the holder is not entitled to have the mining lease renewed or further renewed, the mining lease should be renewed; (b) the holder has observed and performed all the covenants and conditions applicable to the lease and on his part to be observed and performed; (c) the holder has complied with all the provisions of this Act applicable to him in respect of that mining lease; and (d) the land, the subject of the mining lease still contains workable quantities of mineral or mineral bearing ore or is otherwise required for purposes for which the mining lease was granted. then the Minister shall recommend to the Governor in Council who may grant a renewal of that mining lease in the name of the holder for such further term as the Governor in Council specifies subject to any prescribed conditions and such further conditions as the Governor in Council determines but the further term shall not include a period that is not covered by an agreement as to or a determination of compensation pursuant to section 7.36, 7.38 or The Minister s recommendation under this subsection in respect of a mining lease referred to in paragraph (a) shall specify that the mining lease is such a lease. (4) The Minister shall not reject an application for renewal of a mining lease until he has, by notice in writing in or to the effect of the prescribed

10 10 form served on the holder of the mining lease, called upon the holder to show cause within the time specified therein why the application should not be rejected and such cause has not been shown to the satisfaction of the Minister. (5) Where an application for renewal of a mining lease is duly made by the holder but the application has not been granted or rejected before the date on which the term of the mining lease then current would, but for this subsection have expired, then, subject to payment of the rental prescribed in section 7.47, royalties and other moneys required by this Act to be paid and compliance with this Act and the conditions of the mining lease, the mining lease shall continue in force until the application is granted unless it is sooner withdrawn or rejected. (6) The term of a mining lease that is renewed (whether the renewal is granted before or after the date the mining lease expires or would, but for the operation of subsection (5), have expired) shall commence or be deemed to have commenced on the day following that expiry date but the conditions of the renewed mining lease that differ from conditions of the expired mining lease shall apply from (a) the commencement of that term; or (b) the date the renewal is granted, whichever is the later. [29] By the Mineral Resources Amendment Act 1994 (Qld) (s 4), subsections 7.43(5) and (6) were omitted and the following subsections inserted: (5) If a mining lease is renewed under this section before or on the day the lease expires under its terms (the expiry day ), the term of the lease starts on the day after the expiry day. (6) If (a) an application for renewal of a mining lease is properly made by the holder, but is not withdrawn, rejected or granted, before or on the day the lease expires under its terms; and (b) after the expiry day, the holder of the lease (i) (ii) continues to pay rental on the lease, and to pay royalties and other amounts, required to be paid under this Act; and otherwise complies with this Act and the conditions of the lease; the lease continues in force until the application is withdrawn, rejected or granted. (7) If the mining lease mentioned in subsection (6) is renewed under this section after the expiry day, the term of the lease is taken to have tarted on the day after the expiry day.

11 11 (8) If a renewed mining lease contains conditions ( new conditions ) different from, or not included in, the conditions of the expired mining lease, the new conditions apply from the later of (a) the start of the term of the renewed lease; or (b) the day the renewal is granted. (9) However, the holder must pay rental on a mining lease continued in force under subsection (6) from the day after the expiry day at the rate that would have been payable, from time to time, if the lease had been renewed on the day after the expiry day, even though payment of rental may be a condition of the lease. [30] A new s 7.43A was also included: Application of s 7.43(5)-(9) 7.43A.(1) To remove any doubt, section 7.43(5) to (9) does not affect the rental payable on a mining lease before the date of assent because of a decision of a court made before the introduction day about the rental payable on that mining lease. (2) In subsection (1) introduction day means the day on which the Mineral Resources Amendment Bill 1994 was introduced into the Legislative Assembly. (3) This section expires the day after the date of assent. [31] Schedule 2 to the MRA was also amended to provide, relevantly, as follows: Mining leases 3.(1) Notwithstanding that the provisions of section 7.1, 7.2 or 7.6 may be contravened or not complied with, a lease that is (a) a gold mining lease, special gold mining lease, mineral lease, special mineral lease, dredging lease, coal mining lease, special coal mining lease or mining lease granted or deemed to have been granted under the repealed Acts or any other Act relating to mining or any other such lease or mining lease; or (b) a mining lease, special bauxite mining lease, special mineral lease, coal mining lease or special coal mining lease granted pursuant to any of the Acts specified in the following table; and that is current immediately prior to the commencement of this Act shall, upon that commencement be deemed to be a mining lease granted for the balance of its term current at that date Table Alcan Queensland Pty. Limited Agreement Act 1965 Aurukun Associates Agreement Act 1975 Central Queensland Coal Associates Agreement Act 1968

12 12 Commonwealth Aluminium Corporation Pty. Limited Agreement Act 1957 Mount Isa Mines Limited Agreement Act 1985 Queensland Cement & Lime Company Limited Agreement Act 1977 Queensland Nickel Agreement Act 1970 Thiess Peabody Mitsui Coal Pty. Ltd. Agreements Act (1B) Except as provided in subclause (3) and (8), the holder of a lease referred to in subclause (1)(b) immediately prior to the commencement of this Act shall hold the mining lease subject to (a) the provisions of, and the conditions imposed under, this Act; and (b) the covenants and conditions to which it was subject at that commencement; and (c) the provisions of the Act under which it was granted; but if a provision, covenant or condition referred to in paragraph (b) or (c) is inconsistent with this Act or a condition thereunder, that provision, covenant or condition, to the extent of the inconsistency shall prevail. (2) The provisions of this Act relating to rental payable under this Act in respect of mining leases shall prevail over conflicting provisions that applied prior to the commencement of this Act from the times as prescribed by subclause (3) and (3A). (3) Until a lease taken to be a mining lease under subclause (1) (other than a lease mentioned in subclause (1AA) expires under its terms, terminates or is renewed under this Act rental is payable after the commencement of this Act in accordance with the provisions applying to the payment of rental under the lease before the commencement. (3A) Until a lease mentioned in subclause (1AA) terminates or is renewed under this Act, rental is payable in accordance with this Act, from the day after the leased expired, for any period for which the lease was continued in force under the Mining Act 1968 or is continued in force under this Act. (3B) From the renewal under this Act of a lease taken to be a mining lease under subclause (1) (including a lease mentioned in subclause (1AA)), rental is payable in accordance with this Act.... (8) The provisions of this Act relating to the payment of royalties shall prevail over conflicting provisions of any other Act or conflicting terms and conditions of any lease referred to in subclause (1). [32] For completeness, it is noted that the Offshore Minerals Act 1998 (Qld) (s 446 and Schedule 4) had the effect, inter alia, of repealing Schedule 2 (which by 1998 was described simply as the Schedule ) of the MRA. Implied repeal

13 13 [33] The respondents fundamental contention is that the MRA operated to effect an implied repeal of the SCML renewal provisions contained in the CQCAAA and the Agreement. [34] The applicants, supported by the RTA parties, say that there was no such repeal, and that their entitlements to renew are to be found in the CQCAAA and the Agreement. [35] The notion that an earlier statutory provision may be impliedly repealed by a later enactment is not novel. 1 In Goodwin v Phillips 2 Griffith CJ said:... where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act. [36] In that same case, however, notes of caution were sounded in relation to making a finding of implied repeal. Barton J 3 adopted the following statement of Hardcastle in Craies on Statute Law: The Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e. the repeal must, if not expressed, flow from necessary implication. [37] More recently, in Saraswati v The Queen 4 Gaudron J said: 5 It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. [38] In Ferdinands v Commissioner for Public Employment 6 Gummow and Hayne JJ synthesised the principles drawn from numerous authorities in the following passage: 7 It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as The received convention is to refer to repeal, but the learned authors of Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, Australia, 2011, 7 th ed) suggest at [7.10] that the better language would be to say that the later Act displaces or supersedes the earlier. (1908) 7 CLR 1 at 7. At 10. (1991) 172 CLR 1. At 17. (2006) 225 CLR 130. At [18], omitting citations.

14 14 impliedly repealing the earlier if the two are inconsistent. Inconsistency lies at the root of this principle. But, as Isaacs J pointed out in 1907, [i]t is very hard to formulate a rule which will apply to every case of implied repeal. There are, however, two cardinal considerations. First, as Gaudron J said in Saraswati v The Queen, [t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate. Secondly, deciding whether there is such inconsistency ( contrariety or repugnancy ) that the two cannot stand or live together (or cannot be reconciled ) requires the construction of, and close attention to, the particular provisions in question. [39] Later in their judgment, their Honours re-emphasised the second of these cardinal considerations saying: 8 No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an [e]xplicit or implicit contradiction between the two, the later Act impliedly repeals the earlier. [40] It is also instructive to refer to the judgment of Gleeson CJ in Ferdinands, in which his Honour said: 9 The arguments The problem is one of statutory interpretation; a problem that arises only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. The legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on very strong grounds. An example of such implied repeal is found in Butler v Attorney-General (Vic). A Victorian statute of 1943 provided for preference in promotion in favour of discharged servicemen. A Victorian statute of 1946, relating specifically to the public service, provided that, in any appointment to an office in the public service, consideration should be given, first to relative efficiency, and then to relative seniority. A majority in this Court found that the later statute specified with apparent exhaustiveness the matters to be considered with respect to public service promotions and left no room for preference to discharged servicemen. Kitto J said that it was in the nature of the later Act, as much as in its words, that its incompatibility with the earlier Act appeared. [41] The primary position advanced on behalf of the respondents was that the transitional provisions of the MRA, particularly those referred to in [24] above, were manifestly inconsistent with the proposition that the SCMLs could continue to be renewed under the CQCAAA and the Agreement. In this regard, it was submitted: (a) The purpose of schedule 2 clauses 3(1)(a) and 3(1)(c), contained as they were within a schedule of savings, validation and transitional provisions, was to facilitate the change from one statutory regime to another At [47], omitting citations. At [4], omitting citations. Reliance was placed on the observations of Lord Keith of Kinkel in R v Secretary of State for Social Security; ex parte Britnell [1991] 1 WLR 198 at 202.

15 15 (b) (c) (d) (e) (f) The effect of clause 3(1)(a) was that the SCMLs granted pursuant to the CQCAAA were deemed to be mining leases under the MRA for the balance of their terms, i.e. until 31 December The assumption upon which clause 3(1)(a) operated was that after the expiry of the initial terms of the SCMLs, the transition to the regime under the MRA was complete and there was no further need for the deeming to operate. Clause 3(1)(c) complemented this transitional process by providing a mechanism for resolving inconsistencies while the SCMLs were deemed to be mining leases under the MRA. The proposition that renewal of the SCMLs must take place under the CQCAAA and the Agreement is manifestly inconsistent with the purpose of clause 3(1)(a)(ii). If the applicants submission is accepted, then upon renewal of the SCMLs under the Agreement, the new leases would not fall within clause 3(1)(a)(ii) of the MRA because that clause only applies to leases current immediately prior to the commencement of the MRA (i.e. 1 September 1990). Moreover, as the renewals would take place outside the provisions of the MRA, the new leases would fall outside the regime established by the MRA. These results are contrary to the purpose of clause 3(1)(a)(ii), which was to facilitate a transfer to that regime. There was therefore an implicit contradiction between clauses 3(1)(a)(ii) and 3(1)(c) on the one hand and the right to renewal under clause 8(2) of the Agreement on the other, leading to the conclusion that the right to renewal under the Agreement had been abrogated. [42] Central to the respondents arguments was the assumption that clause 3(1)(a) was integral to a mechanism to effect a complete change in the character of each of the SCMLs what had been an SCML granted under the terms of the CQCAAA and the Agreement would in all respects be a mining lease under the MRA. From this assumption, it was said that the rights of renewal attaching to each SCML must be those provided for mining leases under the MRA, and not those pursuant to the CQCAAA and the Agreement. In my view, however, this assumption, and the consequences said to flow from that assumption, are simply not what was provided for under Schedule 2 to the MRA, nor by the CQCAAA and the Agreement. [43] The starting point is the right of renewal for each of the SCMLs, conferred by Part III clause 8 of the Agreement (see above). By s 3 of the CQCAAA, this clause 8 was given the force of law as though it were an enactment. The CQCAAA has not been repealed. Section 3 at all times to the present has operated to provide that the Agreement has the force of law as if it were an enactment. Part III clause 8 of the Agreement has never been deleted or varied. [44] It is clear that Schedule 2 of the MRA did not effect an express repeal of the CQCAAA nor did it expressly amend or delete Part III clause 8 of the Agreement. Indeed, far from repealing or abrogating those previous provisions, it was clear on the face of clause 3(1)(c) that in the case of inconsistency, the provisions, covenants and conditions under which the SCMLs were granted were to prevail over the provisions of or conditions under the MRA. The only exceptions to this order of

16 16 precedence related to rental and royalty provisions, which are not relevant to this case. [45] I do not accept that there was an assumption underlying clause 3(1)(a) that after the expiry of the initial terms of the SCMLs they would henceforth in all respects be mining leases under the MRA subject to all the provisions and conditions provided for by the MRA (particularly with respect to renewal). There is no suggestion in any of the legislation that such an extensive regime change was intended. It is a matter of historical record that the CQCAAA and the Agreement were implemented as part of a statutory framework developed in Queensland to facilitate large projects of State significance. From the project companies perspective, this approach allowed for the grant of longer mining tenure than ordinarily permitted and for the adoption of specific terms of mining tenure appropriate for the particular project. By the 1960s, this approach had been used particularly in Queensland and Western Australia to establish major mining projects. 11 [46] The recitals to the Agreement make it clear (not that it was in issue) that these SCMLs were mining tenures in precisely such a major project. It is also clear that the CQCAAA, the Agreement, and the SCMLs granted thereunder operated to confer important and valuable proprietary rights on the applicants. The assumption advanced by the respondents is that these rights were displaced and replaced by the transition of the SCMLs to mining leases containing quite different terms and conditions. Such a divestment of existing rights and replacement with other rights would have required very clear language on the part of the legislature. It is hardly the sort of transition, in this context, which would simply be assumed. [47] Nor do I accept the respondents contention that the construction advanced by the applicants would lead to absurd results because it would result in the renewed SCMLs being outside the regime established by the MRA. The Agreement, which still subsists and continues to have statutory force, has always: (a) (b) (c) (d) described the SCMLs as having been granted under the provisions of the Coal Mining Acts ; defined the expression Coal Mining Acts so as to embrace successors, such as the MRA; provided that the provisions of the Coal Mining Acts (relevantly, the MRA) apply to the SCMLs except so far as varied or modified by the Agreement; provided that, save in respect of rent and royalty, renewal of the SCMLs under Part III clause 8 of the Agreement would be on the same terms and conditions as applied at the expiration of the original term, including the terms and conditions rendering the Coal Mining Acts (relevantly, the MRA) applicable to the SCML. [48] Renewal of the SCMLs does not lead to the sort of hiatus contended for by the respondents. Rather, as was submitted on behalf of the RTA parties, the outcome is precisely that which one would expect, namely the continuation of the legal status quo relating to a significant coal mining project (a project which, as the parties 11 L Warnick State Agreements The Legal Effect of Statutory Endorsement (1982) 4 AMPLJ 1.

17 17 recited in the Agreement, involves the expenditure of large capital amounts to ensure that the coal deposits are efficiently and economically developed for export purposes for a lengthy period and with an acknowledgement that this development of large scale operations and the technical capacity to develop these deposits is in the interests of the State ). That status quo is preserved by securing renewed SCMLs in accordance with the continuing, never-repealed provisions of the CQCAAA and the Agreement, noting that those renewed SCMLs will continue to be subject to the general mining legislation except so far as varied or modified by the Agreement. [49] This conclusion is also, in my view, consistent with the actual wording of clause 3 of Schedule 2 to the MRA (as enacted). It was submitted for the respondents that clause 3(1)(a)(ii) deemed other leases granted pursuant to specific Acts to be mining leases under the MRA for the balance of their term current on 1 September 1990 and that the SCMLs were therefore deemed to be mining leases until 31 December In fact, clause 3(1)(a) provided, relevantly, that each of the SCMLs shall... be deemed to be a mining lease granted for the balance of its term current at that date. (Underlining added) [50] The use of the word granted in this context cannot be overlooked. The clause contained a temporal limitation which was operative in respect of the assumed grant; it did not alter the character of the assumed mining lease. It is relevant again to recall that each of the SCMLs was, and is, subject to the provisions of the Coal Mining Acts except to the extent varied or modified by the Agreement. The term the Coal Mining Acts clearly caught the MRA. But the general provisions of the MRA did not contain a definition of mining lease, let alone a definition which dealt with the question whether the existing SCMLs were mining leases. I accept the applicants submission that Schedule 2 clause 3 was designed to resolve any ambiguity in this regard by deeming, inter alia, SCMLs to be mining leases and then describing the term of the deemed grant as being the balance of the terms of the SCMLs. [51] Importantly, however, when one reads clause 3 in this way, there is nothing to suggest that this deeming was intended to effect an abrogation of the rights of renewal of the SCMLs in the terms provided for under the Agreement. On the contrary, those were expressly given precedence by clause 3(1)(c). [52] The respondents advanced a separate argument based on the amendments made to Schedule 2 clause 3 of the MRA by the 1994 amendments (see [29] above). The respondents highlighted the fact that clause 3(3) was amended to provide that until a lease taken to be a mining lease under subclause (1)... is renewed under this Act and that clause 3(3B) commenced with the words From the renewal under this Act of a lease taken to be a mining lease under subclause (1)... (emphasis added) [53] It was submitted that, by these amendments, these sub-clauses displayed two features: they contemplated that renewals of the leases under clause 3(1) would occur under the MRA, and they did not distinguish between leases under clause 3(1)(a)(i) and the other leases under clause 3(1)(a)(ii). It was submitted that these clauses cannot be construed as if they were qualified by the words if the leases under clause 3(1) are renewed under this Act, nor are they purely mechanic or procedural provisions. It was argued that, to the extent that the original transitional

18 18 provisions in Schedule 2 of the MRA were ambiguous, these 1994 provisions confirmed that the renewal of leases under clause 3(1) of the schedule would occur under the MRA, not under the various special agreement Acts. [54] The words to which the respondents direct attention, however, cannot be read in isolation. They must be read in their proper context. That context includes that, even after the 1994 amendments, clause 3(1B) of Schedule 2 (as it then was) preserved the precedence of the covenants and conditions under the CQCAAA and the Agreement. When one has regard to whether a lease was renewed under this Act, therefore, one must have regard to the fact that, in the case of these particular deemed mining leases, clause 3(1B) preserved that precedence. [55] Moreover, I accept the submission that the mischief at which these amendments was directed had nothing to do with the right of renewal, but was concerned with the entitlement to rent from the date of renewal. Under the terms in which Schedule 2 was originally enacted, the exception was expressed in terms that made the MRA rental provisions apply not from the commencement of that Act but from the later renewal of the leases after the commencement of the MRA. This was determined by Byrne J (as he then was) in Re Cape Flattery Silica Mines Pty Ltd. 12 [56] It is permissible to have regard to the explanatory notes to identify the mischief sought to be addressed by an amendment. 13 The explanatory note for the Mineral Resources Amendment Bill 1994 (Qld) stated: Objectives of the Legislation The objective of this Bill is to confirm the obligation of a lease holder of a renewed mining lease to ay rental, at the prescribed rate, from the date of commencement of the renewed term of that lease. Reasons for the Bill Under provisions of the now repealed Mining Act 1968 and the Mineral Resources Act 1989, holders of mining leases are bound to pay prescribed rental, prescribed royalties and other lawful charges. In the case of a renewed lease, rental is payable at the rate prescribed at the time the lease is due for renewal. Because of the need to settle certain conditions pertaining to a renewed lease, renewal applications may not be finalised for an extended period of time. It is standard administrative practice in the case of a renewed lease, that the lease holder is charged back-rental for the interim period between the expiry of the lease and the date on which it is renewed. That standard practice was challenged in the Supreme Court (Re: Cape Flattery Silica Mines Pty Ltd) whereby it was successfully contended that the new rental rate was payable only from the date of grant of the renewal of the lease. Provisions in the Instrument of Lease prescribed by the Mining Regulations 1968 triggered the operation of the exception contained in s.7.43(6) of the Mineral Resources Act which provides that the conditions of a renewed mining lease that differ form the expired lease are (unreported, Supreme Court of Queensland, Byrne J, 10 February 1994). See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].

19 19 to apply from the commencement of the term, or the date the renewal is granted, whichever is the later. The intention of the Mineral Resources Act is to prevent retrospective and onerous application of conditions of mining leases rather than provide an opportunity for a leaseholder to continue mining operations for an extended period of time at a reduced rental. [57] As if that explanatory note were not clear enough, in the course of the second reading speech 14 the then Minister stated: The decision of the Supreme Court [i.e. Re Cape Flattery Silica Mines Pty Ltd] effectively applies to every mining lease granted under the Mining Act 1968, and that is to be renewed under the Mineral Resources Act This amendment to the Mineral Resources Act, to take retrospective effect, is necessary to ensure that all lease holders pay the appropriate rental on their mining leases. Members should note that while the proposed amendment may impose a retrospective statutory obligation, the amendment actually is needed only to give statutory effect to longstanding practice, which is well understood and accepted by the industry. [58] Counsel for the respondents sought to counter the applicants reliance on the clearly stated mischief to which the amendments were directed by referring to the observations of Spigelman CJ in Commonwealth Custodial Services v Valuer General: 15 The mischief rule is a valid approach to statutory interpretation so as to ensure that the purpose of the legislature is achieved. It does not necessarily lead to a reading down of general words, so as to confine the legislation to the mischief alone. Merely because a particular problem has been the trigger for a statutory amendment does not lead to the conclusion that the words are incapable of extending beyond the particular matter which caused the amendment. [59] The difficulty for the respondents is that the argument advanced by the applicants does not require a reading down of general words to confine the legislation to the mischief alone. The general words on which the respondents place emphasis are themselves statutorily subject to the other provisions within Schedule 2 clause 3, particularly clause 3(1B). Confirmation of the nature of the mischief that Parliament intended the amendments to address really confirms the construction of those words in their statutory context. [60] For completeness, I note that the respondents submitted that the operation of these provisions in the schedule to the MRA enured, notwithstanding their repeal. 16 In light of the view I have taken of the proper construction of those provisions, however, this proposition does not advance the respondents position. [61] The applicants also sought to bolster their arguments by relying on the fact that the CQCAAA has been amended and the Agreement has been varied on numerous occasions since the enactment of the CQCAAA. The applicants relied on the terms Hansard, 26 April Commonwealth Custodial Services v Valuer General [2007] NSWCA 365 at [16]. Acts Interpretation Act 1954 (Qld), s 20A(2)(a).