Commonwealth v Western Australia

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

THE COMMONWEALTH OF AUSTRALIA   PLAINTIFF

AND

THE STATE OF WESTERN AUSTRALIA                 FIRST DEFENDANT

THE WARDENS OF THE SOUTH WEST
MINERAL FIELD  SECOND DEFENDANT

MINERAL SAND MINING &
DEVELOPMENT PTY LTD   THIRD DEFENDANT

ENMIC PTY LTD  FOURTH DEFENDANT

Commonwealth of Australia v State of Western Australia
(C4-1998) [1999] HCA 5
11 February 1999

ORDER

1. Demurrer by the State of Western Australia to the Commonwealth's Amended Statement of Claim filed on 22 May 1998 allowed in so far as it relates to that part of the defence practice area outside the land within Melbourne Locations 3988, 3989 and 4004 but otherwise overruled.

2. Demurrer by the Commonwealth to the State of Western Australia's Counterclaim filed on 25 May 1998 allowed.

3. Matter stood over to be listed before a single Justice to make further or consequential orders.

4. Costs of each demurrer, if they be sought, reserved for consideration of a single Justice.

2.

Representation:

H C Burmester, Acting Solicitor-General for the Commonwealth, with M J Hawkins and M A Perry for the plaintiff (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia, with J C Pritchard for the first defendant (instructed by Crown Solicitor for the State of Western Australia)

No appearance for the second, third and fourth defendants

Interveners:

D Graham QC, Solicitor-General for the State of Victoria, with C M Caleo intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia, with J Hughes intervening on behalf of the Attorneys-General for the States of South Australia and New South Wales (instructed by Crown Solicitors for the States of South Australia and New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Commonwealth of Australia v The State of Western Australia & Ors

Statutes – Construction – Whether Mining Act 1978 (WA) applies to land owned or leased by the Commonwealth.

Real property – Grants – Freehold grant – Crown lease – Reservations for mining and minerals – Construction of reservations.

Constitutional law – Effect of s 64 of the Judiciary Act 1903 (Cth) – Application of Mining Act 1978 (WA) to land owned or leased by the Commonwealth.

Constitutional law – Inconsistency of laws – Whether Lands Acquisition Act 1989 (Cth) inconsistent with Mining Act 1978 (WA).

Constitutional law – Inconsistency of laws – Whether Defence Force Regulations (Cth) inconsistent with Mining Act 1978 (WA).

Constitutional law – Acquisition of property – Whether Defence Force Regulations (Cth) effect an "acquisition of property" under s 51 (xxxi) of the Constitution.

Words and phrases – "Crown land" – "operational inconsistency" – "private land".

The Constitution, ss 51(xxxi), 109.
Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1).
Judiciary Act 1903 (Cth), s 64.
Lands Acquisition Act 1955 (Cth), ss 8, 51 & 53(2).
Lands Acquisition Act 1989 (Cth), Pt X.
Defence Force Regulations (Cth), Pt XI.
Mining Act 1978 (WA).

1. GLEESON CJ AND GAUDRON J.   The Commonwealth uses land at Lancelin in Western Australia as a defence practice area ("the defence practice area").  It owns the fee simple in part of the land known as Melbourne Locations 3989 and 4004 ("the freehold land").  It holds another part of the land, Melbourne Location 3988, as lessee under a Special Lease from the State of Western Australia ("the leasehold land").  The remaining land surrounds the leasehold land ("the perimeter area").  It is owned by the State of Western Australia.  The Commonwealth may have some arrangement with the State with respect to its use but, if so, that does not appear from the pleadings.

2. Application has been made by Mineral Sand Mining & Development Pty Ltd and Enmic Pty Ltd, the third and fourth defendants, respectively, for the grant pursuant to the Mining Act 1978 (WA) of exploration licences over part of the defence practice area. One application (No 70/1425) is in respect of an area which encompasses part of the leasehold land and part of the perimeter area. Another (No 70/1542) covers part of the freehold and leasehold lands and part of the perimeter area and the other application (No 70/1549) covers part of the freehold and leasehold lands. The applications were lodged on 10 February 1994, 9 November 1994 and 10 January 1995, respectively.

   The proceedings

3. Proceedings were commenced in this Court by the Commonwealth against the State of Western Australia, the Wardens of the South West Mineral Field ("the Mining Wardens") and the third and fourth defendants.  By its Amended Statement of Claim, the Commonwealth seeks declarations that the Mining Wardens do not have jurisdiction to entertain applications for mining tenements over any part of the defence practice area; that, to the extent that the Mining Act purports to apply to any part of that area, it is invalid; and, finally, that the Mining Act "does not bind the Crown in the right of the Commonwealth."

4. The State of Western Australia demurred to the Commonwealth's Amended Statement of Claim.  Additionally, it counterclaimed to the effect that the legislative provisions upon which the Commonwealth relies are invalid.  It will later be necessary to refer to the counterclaim in more detail.  For the moment, it is sufficient to note that the Commonwealth has demurred to it.

   History of and title to the defence practice area

5. Before turning to the precise issues raised by the demurrers, it is necessary to say something further with respect to the separate areas which together make up the defence practice area.

6. The freehold land was acquired by agreement with the State of Western Australia in two parcels, the first (Melbourne Location 3989) in 1975 and the second (Melbourne Location 4004) in 1977. The acquisition of both parcels was for a public purpose and was effected pursuant to s 7 of the Lands Acquisition Act 1955 (Cth) ("the 1955 Acquisition Act")[1].  Crown Grants were issued by the Governor of Western Australia and the Commonwealth became registered as proprietor in fee simple of both parcels pursuant to the Transfer of Land Act 1893 (WA).

   [1]The 1955 Acquisition Act has since been repealed. At the time of the acquisitions, s 7(1) provided:

   " The Minister may authorize the acquisition of land by the Commonwealth by agreement for a public purpose approved by him."

7. Each of the Crown Grants contains a reservation of minerals in the following terms:

   "... we do hereby save and reserve to Us, Our heirs and successors, all Mines, of Gold, Silver, Copper, Tin, or other Metals, Ore and Minerals, or other substances containing Metals, and all Gems or Precious Stones and Coal or Mineral Oil and all Phosphatic Substances in and under the said land, with full liberty at all times to search and dig for and carry away the same; and for that purpose to enter upon the said land or any part thereof".

   They also contain a reservation of petroleum in these terms:

   "... we do hereby, save and reserve to Us, Our heirs and successors all petroleum (as defined in the Petroleum Act, 1967, and all amendments thereof for the time being in force) on or below the surface of the said land with the right reserved to Us, Our heirs and successors and persons authorised by Us, Our heirs and successors to have access to the said land for the purpose of searching for and for the operations of obtaining petroleum in any part of the said land".

8. There is a distinct difference between the reservation of minerals and the reservation of petroleum.  The latter allows that access may be had not only by "Us, Our heirs and successors" but also by "persons authorised ... to have access ... for the purpose of searching for and ... obtaining petroleum".  So far as concerns the reservation of minerals, a right of entry is simply reserved "to Us, Our heirs and successors".

9. Whatever the extent of the reservation of petroleum and the associated right of access, it follows from the limited nature of the reservation of minerals that it does not, itself, permit any person to be authorised to search for minerals or to conduct mining activities on his or her own behalf.  Thus, contrary to the primary argument for the State of Western Australia, it is necessary to inquire with respect to the freehold land whether such authority can be conferred pursuant to the Mining Act.

10. The leasehold land was demised by the State of Western Australia to the Commonwealth for use as "a Naval Gunfire Support Range Danger Area and Army Training Area"[2]. It was demised pursuant to s 7(4) of the Land Act 1933 (WA) for a period of 21 years from 1 July 1978[3]. The leasehold was also acquired by the Commonwealth for a public purpose pursuant to s 7 of the 1955 Acquisition Act and the lease registered pursuant to the Transfer of Land Act.

    [2]Condition 1 of the Special Lease provides that the land is not to be used for any other purpose "without the prior approval in writing of the Minister for Lands."

    [3]At the relevant time, s 7(4) provided:

    "   The Governor is authorized to agree with the Governor General of the Commonwealth or other appropriate authority of the Commonwealth for the sale or lease of any Crown lands to the Commonwealth and to execute any instruments or assurance for granting, conveying or leasing the land to the Commonwealth."

    The Land Act has been repealed and replaced by the Land Administration Act 1997 (WA).

11. The Special Lease provides:

    "it [is] at all times ... lawful for Us, Our Heirs and Successors, or for any person or persons acting in that behalf by Our or Their authority, to resume and enter upon possession of any part of the said lands ... for the purpose of exercising the power to search for minerals and gems hereinafter reserved".

    The reservation of minerals and gems is in these terms:

    "... we do hereby save and reserve to Us, Our Heirs and Successors, all mines of gold, silver, copper, tin or other metals, ore, and mineral, or other substances containing metals, and all gems and precious stones, and coal or mineral oil, and all phosphatic substances in and under the said land, with full liberty at all times to search and dig for and carry away the same".

12. The reservation of access for the purpose of exploration is expressed to be "for Us, Our Heirs and Successors, or for any person or persons acting in that behalf by Our or Their authority", whilst in relation to the reservation of minerals and gems a right of entry is reserved "to Us, Our Heirs and Successors".  Given the limited nature of the latter reservation, the reservation of access for the purpose of exploration must be construed as confined to persons acting as servants or agents of the Crown.

13. It follows that neither the reservation of access for the purpose of exploration nor the reservation of minerals can be construed as extending to persons searching for minerals or conducting mining activities on their own behalf.  Thus, and again contrary to the primary argument for Western Australia, it is necessary to inquire with respect to the leasehold land, as with the freehold land, whether persons may be authorised pursuant to the Mining Act to engage in exploration or other mining activities on that land on their own behalf.

14. The precise status of the perimeter area does not appear from the pleadings, but the argument proceeded on the basis that it is unalienated Crown land which is included in the defence practice area either as a result of some agreement with the State of Western Australia or simply by force of declarations made pursuant to reg 49(1) of the Defence Force Regulations (Cth) ("the Defence Regulations"), to which detailed reference will later be made.

    Use of the defence practice area

15. In February 1944, an area around Lancelin Island was declared to be an air gunnery and bombing area.  On 28 October 1975 and 18 July 1978, authorisations were published in the Gazette pursuant to s 69(1) of the Defence Act 1903 (Cth) for the use of an area for military training. That land included part of what is now the defence practice area.

16. On 5 July 1985, 16 July 1987 and 17 October 1994, the defence practice area was declared a defence practice area pursuant to reg 49(1) of the Defence Regulations[4].  The first such declaration was for use as a naval gunnery, and the second and third for air to surface weapons firing.  The relevant parts of the first and third of those declarations were still in force when the applications for exploration licences were made[5].

    [4]Regulation 49(1) provides:

    "   The Minister may, by notice published in the Gazette, declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice."

    [5]The declaration of 16 July 1987 was revoked by that of 17 October 1994.  The relevant part of the declaration of 5 July 1985 has since been revoked by a declaration of 3 March 1998, published in the Gazette of 8 April 1998.

17. It seems that, so far as the perimeter area is concerned, the declarations made under reg 49(1) of the Defence Regulations were made with the consent of the State for no such declaration is to be made with respect to private land unless with the consent of the occupier or unless it is "necessary or expedient in the interests of the safety or defence ... to carry out ... a defence operation or practice"[6]. It is common ground that, for the purposes of reg 49(1), the perimeter area is private land[7].

    [6]Regulation 49(2) of the Defence Regulations. Note that by reg 50 declarations with respect to private land must be tabled in Parliament and are subject to disallowance.

    [7]Regulation 48 of the Defence Regulations defines "private land" as "land that is not Commonwealth land" and "Commonwealth land" as "land belonging to, or in the occupation of, the Commonwealth or a public authority under the Commonwealth but does not include land the subject of a lease from the Commonwealth unless that lease is subject to the condition that the land may be used by the Defence Force or an arm of the Defence Force for carrying out a defence operation or practice of a kind specified in a notice under subregulation 49(1)".

18. According to the Commonwealth's Amended Statement of Claim, the defence practice area has been used as follows:

    "During 1993 the Army conducted operations in the defence practice area on 203 days, the Navy on 125 days and the Airforce on 36 days.

    During 1994 the Army conducted operations in the defence practice area on 171 days, the Navy on 116 days and the Airforce on 36 days.

    During 1995 the Army conducted operations in the defence practice area on 190 days, the Navy on 117 days and the Airforce on 36 days.

    During 1996 the Army conducted operations in the defence practice area on 200 days, the Navy on 84 days and the Airforce on 36 days.

    During 1997 the Army conducted operations in the defence practice area on 207 days, the Navy on 125 days and the Airforce on 7 days.

    During 1998 to the 30th April 1998 the Army conducted operations in the defence practice area on 82 days and the Navy on 72 days."

    The Mining Act:  issues with respect to the freehold and leasehold lands

19. So far as concerns the freehold and leasehold lands, the Commonwealth contends that the Mining Act does not apply to them, or, as it is put in the Amended Statement of Claim, "does not bind the Crown in the right of the Commonwealth".  Further, it was put that the Mining Act does not apply to the freehold land because of s 52(i) of the Constitution[8].  It was also put by the Commonwealth that, if the Mining Act purports to apply to the freehold and leasehold lands, it is, to that extent, invalid by reason of inconsistency with the Defence Regulations, the 1955 Acquisition Act and the Lands Acquisition Act 1989 (Cth) ("the 1989 Acquisition Act").

    [8]Section 52 of the Constitution relevantly provides:

    " 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".

20. It was also argued for the Commonwealth that the Mining Act is invalid to the extent of its application to the freehold and leasehold lands by reason of implied constitutional limitations on State legislative power with respect to the use by the Commonwealth of its property and, also, with respect to Commonwealth property used in connection with defence.  It was also put that there is a wider immunity with respect to defence activities.  Further reference will be made to that argument in relation to the perimeter area.

    The Mining Act:  issues with respect to the perimeter area

21. So far as concerns the perimeter area, the Commonwealth argued that the Mining Act is inconsistent with the Defence Regulations and, to that extent, invalid by force of s 109 of the Constitution[9].  In the alternative, it was put that it was invalid because of an implied constitutional limitation on State legislative power with respect to the Commonwealth's capacity "to carry out defence activities as it determines on land set aside ... for those purposes".

    [9]Section 109 provides:

    "   When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

    Further issues with respect to the freehold and leasehold lands

22. By its counterclaim, the State of Western Australia contends that, if, by reason of any of the laws upon which the Commonwealth relies, the Commonwealth is entitled to prohibit or regulate exploration and mining on the freehold and leasehold lands or the Mining Act is rendered invalid "so that the [State] is unable to utilise the metals and minerals ... reserved to it", the Commonwealth laws which have that result are, to the same extent, invalid as an acquisition of property contrary to s 51(xxxi) of the Constitution[10].  This contention is restricted to "metals and minerals" reserved to the State of Western Australia by the Crown Grants and the Special Lease.  Thus, no question is raised as to the acquisition of minerals in the perimeter area.

    [10]Section 51(xxxi) of the Constitution confers power to the Commonwealth to legislate with respect to:

    "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".

    This section has been construed as a guarantee of just terms.  See, for example, Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 284-285 per Rich J; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349-350 per Dixon J; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509 per Mason CJ, Brennan, Deane and Gaudron JJ; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 565 per Gaudron J, 595 per Gummow J, 652-653 per Kirby J; The Commonwealth v WMC Resources Ltd (1998) 72 ALJR 280 at 296-297 per Gaudron J, 329 per Kirby J; 152 ALR 1 at 24, 70.

    The Mining Act:  the freehold and leasehold lands

23. If the Mining Act does not apply to the freehold or the leasehold lands, no issue arises as to its validity in relation to those areas.  It is, therefore, convenient to begin with the question of its application to those areas.  In this regard, it was put for the State of Western Australia that the Mining Act applies to the freehold and leasehold lands of its own force. In the alternative, it was argued that it is applied either by s 64 of the Judiciary Act 1903 (Cth) or by the Commonwealth Places (Application of Laws) Act 1970 (Cth).

24. The Mining Act provides as to the circumstances in which persons may engage in exploration or other mining activities on land in Western Australia and regulates the conduct of those persons with respect to those activities.  It has no provision expressly binding the government of Western Australia or that of any other polity in the federation.  Nor does it have any provision expressly indicating whether it applies to land owned by any other polity in the federation.  However, in terms, it applies to "Crown land" and land reserved for public purposes which are defined in such a way that the Act applies to land owned or held by the State of Western Australia, although not in the same manner as for private land.

25. So far as concerns Crown land, it is expressly provided in s 18 of the Mining Act that all Crown land that is not already the subject of a mining tenement is open for mining.  Subject to any contrary intention, "Crown land" is defined in s 8(1) to mean:

    "all land in the State, except -

    (a)land that has been reserved for or dedicated to any public purpose other than –

    (i)       land reserved for mining or commons;

    (ii)land reserved and designated for public utility for any purpose under the Land Administration Act 1997;

    (b)land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown;

    (c)land that is subject to any lease granted by or on behalf of the Crown other than –

    (i)a pastoral lease within the meaning of the Land Administration Act 1997, or a lease otherwise granted for grazing purposes only;

    (ii)      a lease for timber purposes; or

    (iii)a lease of Crown land for the use and benefit of the Aboriginal inhabitants;

    (d)land that is a townsite within the meaning of the Land Administration Act 1997"[11].

    [11]Section 8(1) of the Mining Act was amended with effect from 30 March 1998 to reflect the repeal of the Land Act 1933 and its replacement with the Land Administration Act 1997. As nothing turns on these amendments, it is convenient to refer to s 8(1) in its present form.

26. The exception from the definition of "Crown land" of land reserved or designated for a public purpose is of some significance. "Public purpose" is also defined in s 8(1) and, again subject to a contrary intention, means "any of the purposes for which land may be reserved under Part 4 of the Land Administration Act 1997, and any purpose declared by the Governor pursuant to that Act"[12].

    [12]Under s 41, which is in Pt 4 of the Land Administration Act, "the Minister may by order reserve Crown land to the Crown for one or more purposes in the public interest."  The Land Act, which was in force when the applications for exploration licences were made, contained a similar provision for the reservation of land (s 29). Clause 14(2) of Sched 2 of the Land Administration Act provides:

    " Any land reserved under section 29 of the [Land Act] and remaining so reserved immediately before the [day that this Act is proclaimed] is to be taken to be land reserved under section 41 of this Act."

27. Private land is also open for mining and, by s 27 of the Mining Act, it is provided that "a mining tenement may be applied for in respect of any private land ... and such land is open for mining in accordance with this Act."[13]  Again subject to a contrary intention, "private land" is relevantly defined in s 8(1) to mean:

    "... any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof (not being a pastoral lease within the meaning of the Land Administration Act 1997 or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or for timber purposes or a lease of Crown land for the use and benefit of the Aboriginal inhabitants) but –

    ...

    (c)no land that has been reserved for or dedicated to any public purpose shall be taken to be private land by reason only that any lease or concession is granted in relation thereto for any purpose".

    [13]Note that for the purposes of Div 3 of Pt III of the Act, which includes s 27, private land does not include "private land that is the subject of a mining tenement, other than in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B".

28. It is apparent from a comparison of the definitions of "Crown land" and "private land" that land within exception (b) to the definition of "Crown land" (for ease of reference, land granted in fee simple) falls within the definition of "private land" and that land within exception (c) (for ease of reference, Crown leases) also falls within the definition of "private land", apart from pastoral and grazing leases, timber leases and Aboriginal leases which are Crown land. Land within exceptions (a) and (d) to the definition of "Crown land" (for ease of reference, land reserved for a public purpose and townsites) falls within neither definition. However, townsites and land reserved for a public purpose may be open for mining in accordance with Div 2 of Pt III of the Mining Act. It will later be necessary to refer to the provisions of Div 2.

29. It is necessary to note three matters with respect to the definitions of "Crown land" and "private land" in s 8(1) of the Mining Act. The first is that, because of the definition of "public purpose", the exception of land that has been reserved for a public purpose from the definition of "Crown land" does not extend to land that has been acquired by the Commonwealth for a public purpose. The second is that, as a matter of ordinary language, the freehold and leasehold lands in the defence practice area fall, respectively, within exceptions (b) and (c) to the definition of "Crown land" (land granted in fee simple and Crown leases) and within the definition of "private land" ("land that has been ... alienated from the Crown for any estate of freehold, or is ... the subject ... of any lease"). Thus, subject to any contrary intention as allowed by s 8(1), the freehold and leasehold lands are "private land" for the purposes of the Mining Act and open for mining in accordance with s 27.

30. The third matter to be noted with respect to the definitions of "Crown land" and "private land" in s 8(1) of the Mining Act is that some land, namely, land reserved for a public purpose and townsites, falls within neither definition.  That is a matter which is relevant to the question whether there is to be discerned a contrary intention so that, notwithstanding the terms of the definitions, land acquired by the Commonwealth for a public purpose is neither "Crown land" nor "private land".

The Mining Act:  principles of construction and contrary intention

31. It should at once be noted that, subject to express and implied constitutional limitations, the various polities in the federation may enact legislation applying to each other and, also, to their property[14].  The question whether the legislation of one polity applies to another is usually framed as a question whether it "binds the Crown in right of a State" or, in the case of State legislation, "whether it binds the Crown in right of the Commonwealth".  In the present case, however, the question is not whether the Mining Act "binds the Commonwealth", but whether it applies to lands acquired by the Commonwealth for a public purpose.

    [14]As to a State law applying to the Commonwealth, see Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410. As to a Commonwealth law applying to a State, see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

32. There is a common law rule or presumption that "no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound"[15].  And it was held in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd that, within Australia, that presumption applies to "the Crown in all its capacities" and not simply "the Crown in right of the community whose legislation is under consideration"[16], to use expressions which were used in that case[17].

    [15]Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 116 per Gibbs ACJ. The presumption is not to be treated as an inflexible rule involving a stringent test of necessary implication. See Bropho v Western Australia (1990) 171 CLR 1.

    [16](1979) 145 CLR 107 at 122-123 per Gibbs ACJ, 129 per Stephen J, 136 per Mason and Jacobs JJ. See also Jacobsen v Rogers (1995) 182 CLR 572 at 585 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 444 per Dawson, Toohey and Gaudron JJ.

    [17](1979) 145 CLR 107 at 116 per Gibbs ACJ.

33. It would be preferable, in our view, and more consonant with our constitutional arrangements, if the presumption that a statute "does not bind the Crown" were expressed as a presumption that a statute which regulates the conduct or rights of individuals does not apply to members of the executive government of any of the polities in the federation, government instrumentalities and authorities intended to have the same legal status as the executive government, their servants or agents.  For ease of reference, we shall refer to that presumption as the presumption that legislation does not apply to members of the executive government.

34. As already indicated, however, this case is concerned with a slightly different presumption, namely, that a statute does not divest the Crown of its property, rights, interests or prerogatives unless that is clearly stated or necessarily intended[18].  Again, for ease of reference, we shall refer to that presumption as the presumption that legislation does not affect government property.

    [18]Attorney-General v Hancock [1940] 1 KB 427 at 439 per Wrottesley J, referred to in In re Telephone Apparatus Manufacturers' Application [1963] 1 WLR 463 at 479 per Upjohn LJ; [1963] 2 All ER 302 at 311. It seems that this presumption was also applied in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 124 per Gibbs ACJ, 129 per Stephen J, 137-138 per Mason and Jacobs JJ.

35. The rationale for the presumption that a statute does not apply to members of the executive government was identified in relation to the United States of America by Story J in United States v Hoar in these terms:

    "In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary force to the government itself."[19]

    The same reason was given by Gibbs ACJ in Bradken for holding that, in Australia, the presumption extends to all governments, not just the government of the enacting polity[20].

    [19](1821) 2 Mason 311 [26 Fed Cas 329 at 330], referred to in Roberts v Ahern (1904) 1 CLR 406 at 418.

    [20](1979) 145 CLR 107 at 122.

36. Speaking of legislation enacted by the Commonwealth Parliament, Gibbs ACJ observed in Bradken that legislation "may have a very different effect when applied to the government of a State from that which it has in its application to ordinary citizens."[21]  That is also true of State legislation when applied to members of the executive government of the Commonwealth.  And it is, perhaps, more obviously so in the case of legislation affecting government property, whether the legislation in question is that of a State or that of the Commonwealth.  For that reason, the presumption with respect to government property should be expressed as a presumption with respect to the property of all polities in the federation, not simply that of the enacting polity.  Moreover, it would be anomalous if the presumption were not to operate in the same way as the presumption with respect to members of the executive government.

    [21](1979) 145 CLR 107 at 123.

37. Reference was made earlier to the fact that there is land in Western Australia that falls neither within the definition of "Crown land" in s 8(1) of the Mining Act nor within the definition of "private land".  Were those definitions exhaustive, in the sense of embracing all land in Western Australia, the conclusion that the Mining Act was intended to apply to land acquired by the Commonwealth for public purposes would be inescapable.

38. Given, however, that the definitions of "Crown land" and "private property" are not exhaustive and given, also, the presumption that a statute does not detract from the property rights of a State or of the Commonwealth, it is necessary to ask whether the Act was intended to apply to Commonwealth land.  More precisely, it is necessary to ask whether there is to be discerned a contrary intention so that land acquired by the Commonwealth for a public purpose falls neither within the definition of "Crown land" nor that of "private land".

39. It is not unusual for a State statute to be expressed to bind "the Crown in right of" that State, but for the statute to be silent with respect to its application to the Commonwealth.  Nor is it unusual, in that situation, for there to be special provision as to the manner in which the statute is to apply to members of the executive government or to the property of the State.  In that situation, it may be taken that the Parliament recognised that it would be inappropriate for the statute to apply to government property or personnel in precisely the same way as it does to individuals.

40. Moreover, if it has been recognised by the legislature that it would be inappropriate for legislation to apply to government property or personnel in the same way as it applies to individuals, it may be inferred from its silence with respect to other polities in the federation that it was not intended that it should apply to their property or personnel.  That is because, if the legislature has recognised that a statute will or may have a different impact on government property or personnel, it ought not be assumed that it intended to subject the property and personnel of the other polities in the federation to a regime which it recognised was inappropriate in its own case.

41. As earlier indicated and unless a contrary intention appears, the Commonwealth's freehold and leasehold lands fall within the definition of "private land" in s 8(1) of the Mining Act.  However, the lands owned or held by the State of Western Australia are generally either "Crown land" as defined in the Act or land falling within exception (a) to that definition (land reserved for a public purpose).  And special provision is made in the Mining Act with respect to Crown land and land reserved for a public purpose. In this regard, the first provision that should be noted is s 19(1)(a) which enables the Minister to "exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor", from the operation of the Mining Act[22].

    [22]Section 19(1)(a) was amended with effect from 14 October 1995. The words "land, not being private land or" replaced the previous words "Crown land, not being Crown". As nothing turns on these amendments, it is convenient to refer to the section in its present form.

42. Further, as already noted, special provision is made in Div 2 of Pt III of the Mining Act with respect to land reserved for a public purpose[23]. As explained earlier, that land is not included within the definition of "Crown land". Under Div 2 of Pt III, no mining can be carried out on specified lands, including certain lands which are reserved under Pt 4 of the Land Administration Act[24], other than with the consent of the Minister[25].  And in the case of some of those lands[26], the grant of a mining lease is subject to the consent of both Houses of Parliament[27].

    [23]As noted earlier, such land does not include land acquired by the Commonwealth for a public purpose and the freehold and leasehold lands in the defence practice area do not otherwise come within Div 2 of Pt III of the Act.

    [24]Section 24(1)(a), (b) and (c). As noted earlier, the definition of "public purpose" in s 8(1) of the Mining Act includes "any of the purposes for which land may be reserved under Part 4 of the Land Administration Act".

    [25]Section 24(3)(a) and (5)(a).

    [26]Section 24(1)(a) and (b).

    [27]Section 24(4).

    The Mining Act does not apply of its own force to the freehold and leasehold lands

43. The Mining Act's provisions enabling the exemption of land that is not private land and requiring Ministerial consent for mining on land reserved under Pt 4 of the Land Administration Act are to be taken as legislative recognition that it was not appropriate for lands owned or held by the State to be dealt with in precisely the same way as private land.  It is not to be assumed that the legislature considered that land acquired by the Commonwealth for a public purpose was to be subject to a regime considered inappropriate for land owned or held by the State of Western Australia.

44. In the circumstances, the different treatment of that land is to be taken as signifying a contrary intention for the purposes of s 8(1) of the Mining Act.  More precisely, it is to be taken as signifying that land acquired by the Commonwealth for a public purpose falls neither within the definition of "Crown land" nor "private land".  In consequence, the Act does not apply of its own force to the freehold and leasehold lands in the defence practice area.

    Section 64 of the Judiciary Act

45. Section 64 of the Judiciary Act relevantly provides:

    "   In any suit to which the Commonwealth ... is a party, the rights of parties shall as nearly as possible be the same ... as in a suit between subject and subject."

46. It was contended for the State of Western Australia that the proceedings in this Court are a "suit" for the purposes of s 64 of the Judiciary Act and that the demurrer is to be determined on the basis that s 64 operates to apply the Mining Act to the Commonwealth.  Were that the issue, the argument would find support in The Commonwealth v Evans Deakin Industries Ltd[28].  It was held in that case that a State law which did not purport to apply to the Commonwealth operated to confer a right of action against the Commonwealth once proceedings were commenced against it.

    [28](1986) 161 CLR 254.

47. The issue in this case, however, is not the operation of s 64 of the Judiciary Act in proceedings in this Court.  The question is whether mining tenements may be granted pursuant to the Mining Act over the freehold and leasehold lands.  They can only be granted on application.  And as the Mining Act does not apply to those lands of its own force, they can only be granted if some other law – for present purposes, s 64 of the Judiciary Act - operates to apply that Act to the process of determining whether an application should be granted[29]. In this case, this question is whether s 64 applies the Mining Act to the proceedings in the warden's court[30].

    [29]The definition of "mining tenement" in s 8(1) of the Mining Act includes prospecting, exploration, retention and miscellaneous licences and mining and general purpose leases.  In an application for a prospecting or miscellaneous licence, the mining registrar determines the application, unless there is a notice of objection lodged in which case the warden hears and determines the application (ss 42, 91, 92).  In an application for any other mining tenement, the Minister has the power to grant or refuse the lease or licence.  If no notice objection is lodged, the mining registrar makes a recommendation to the Minister as to whether to grant or refuse the application.  When there is an objection, the warden hears the application and then makes a recommendation to the Minister (ss 59, 70D, 75, 86).

    [30]Three applications for exploration licences were lodged pursuant to the Mining Act.  The Commonwealth lodged an objection to each of the applications and so the applications came before the warden in accordance with s 59 of the Act.  On 23 June 1996, Mining Warden PG Malone SM held that he had jurisdiction to hear and make recommendations on one of the applications (No 70/1425).

48. As a matter of ordinary language and, also, as a matter of context, the word "suit" in s 64 of the Judiciary Act refers to proceedings for the determination of existing rights and obligations or other proceedings which involve the exercise of the judicial power of the Commonwealth[31].  An application for the grant of a mining tenement is not an application to determine existing legal rights and obligations.  Rather, it is an application for the creation of new rights and obligations.  In essence, that is an administrative function to be performed by wardens in accordance with the Mining Act.

    [31]Some powers have a "double aspect" so that "they are properly characterised as judicial if conferred on a court and non-judicial if conferred on another body":  Gould v Brown (1998) 72 ALJR 375 at 398 per Gaudron J; 151 ALR 395 at 424. See also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 177 per Isaacs J; R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305 per Kitto J; R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628 per Mason J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.

49. Although it may be that, in the discharge of some functions conferred by the Mining Act, wardens exercise what would ordinarily be regarded as judicial power, they do not exercise any part of the judicial power of the Commonwealth. Given that that is so and given, also, the nature of their function with respect to applications for the grant of mining tenements, proceedings in the warden's court are not a "suit" for the purposes of s 64 of the Judiciary Act[32]. It follows that s 64 does not operate to apply the Mining Act to the Commonwealth in those proceedings.

    [32]Section 64 only applies in suits in federal jurisdiction.  See China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 223 per Stephen J, 234 per Murphy J; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 474 per Gummow J. In relation to proceedings in an administrative tribunal see Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 448 per Dawson, Toohey and Gaudron JJ, 460-461 per McHugh J, 511 per Kirby J.

    Commonwealth Places (Application of Laws) Act

50. It was also put for the State of Western Australia that s 4(1) of the Commonwealth Places (Application of Laws) Act applies the Mining Act to the freehold and leasehold lands in the defence practice area. Section 4(1) provides:

    "   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."

51. When properly construed, the Mining Act does not apply, and does not purport to apply, to land acquired by the Commonwealth for public purposes. Section 4(1) operates to apply State laws "in accordance with their tenor", not to rewrite them. Accordingly, it does not operate to apply the Mining Act to the freehold and leasehold lands in the defence practice area.

    The State's demurrer:  freehold and leasehold lands

52. As the Mining Act does not apply of its own force to the freehold and leasehold lands and is not applied to them by s 64 of the Judiciary Act or by s 4(1) of the Commonwealth Places (Application of Laws) Act, the State's demurrer must be overruled so far as it concerns those lands.  That being so, it is unnecessary to consider the Commonwealth's contentions as to the invalidity of the Mining Act in relation to the freehold and leasehold lands by reason of inconsistency, s 52(i) of the Constitution or implied constitutional limitations on State legislative power.

    The Mining Act:  the perimeter area

53. As already indicated, the argument in this Court proceeded on the basis that the perimeter area is unalienated Crown land. It was common ground that, on that basis, it falls within the definition of "Crown land" in s 8(1) of the Mining Act and is open for mining unless, in its application to that land, the Mining Act is inconsistent with the Defence Regulations or is otherwise invalid by reason of a constitutional immunity with respect to land set aside for defence purposes.

    The Mining Act: inconsistency with the Defence Regulations

54. For the purposes of s 109 of the Constitution, the question of inconsistency is ordinarily determined by asking whether the Commonwealth law "covers the field"[33], or, whether the State law would, if valid, "alter, impair or detract from the operation" of the Commonwealth law[34].  On other occasions, the question may simply be whether, for example, the laws cannot be obeyed simultaneously[35] or whether one law takes away what the other confers[36].

    [33]See, for example, Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489-490 per Isaacs J; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 109 per Latham CJ; Viskauskas v Niland (1983) 153 CLR 280 at 291.

    [34]Victoria v The Commonwealth ("The Kakariki") (1937) 58 CLR 618 at 630 per Dixon J.

    [35]See, for example, Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259 per Barwick CJ.

    [36]See, for example, Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 at 464.

55. To say that a Commonwealth law "covers the field" is simply to say that there is to be discerned an intention on the part of the Parliament of the Commonwealth that its legislation should be an exclusive and exhaustive statement of the law on the topic with which it is concerned[37]. In this case, the question is whether the Defence Regulations evince such an intention with respect to private land included in a defence practice area.

    [37]See Ex parte McLean (1930) 43 CLR 472 at 483 per Dixon J; Viskauskas v Niland (1983) 153 CLR 280 at 291-292; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465-466 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

56. As already indicated, land which is private land for the purposes of the Defence Regulations may be declared a defence practice area under reg 49(1). By reg 51(1) of the Defence Regulations, a chief of staff may authorise the carrying out of a defence operation or practice in an area that has been declared a defence practice area. And where an authorisation is issued under reg 51(1), "such notice ... as is reasonably required for the protection of persons or property" must be given under reg 52(1).

57. By regs 53(1) and (2), it is an offence for a person to be in a defence practice area without reasonable excuse, or, to permit a vehicle, vessel or aircraft to be in a defence practice area (again, without reasonable excuse) "at a time specified in an instrument under subregulation 51(1)", except with the permission of the authorising officer or of a participating officer[38].  If permission is given, it is an offence to disobey a condition attached to that permission[39]. Moreover, by reg 54, persons, vehicles, vessels and aircraft in the defence practice area without permission at the time of a defence operation or practice authorised under reg 51(1) may be removed.

    [38]In each case, the penalty is $500 or imprisonment for 3 months or both.

    [39]Regulation 53(5).

58. One other provision of the Defence Regulations should be noted. Regulation 57(1) relevantly provides:

    "The Commonwealth shall pay reasonable compensation to a person who:

    ...

    (b)sustains loss or damage by reason that an area is declared to be a defence practice area under subregulation 49(1);

    (c)sustains loss or damage by reason of the use of land for the purposes of a defence operation or practice authorized under regulation 51; or

    (d)sustains loss or damage otherwise caused by the operation of this Part."[40]

    [40]Part XI, which comprises regs 48 to 57C inclusive.

59. It is clear that the regulations to which reference has been made constitute an exhaustive statement of the Commonwealth's rights and obligations with respect to private land in a defence practice area.  However, they make limited provision as to the rights and obligations of other persons.  Save to that limited extent, their rights and obligations are left to the general law[41]. Accordingly, it cannot be said that the Defence Regulations manifest an intention to "cover the field" with respect to the rights and obligations of persons other than those acting for or on behalf of the Commonwealth in relation to the perimeter area.

    [41]See with respect to laws which operate against the background of the general law, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 246 per Stephen J; Dobinson v Crabb (1990) 170 CLR 218 at 231 per Dawson and McHugh JJ; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 433 per Dawson, Toohey and Gaudron JJ.

60. Nor, in our view, can it be said that any provision of the Mining Act would, if valid, alter, impair or detract from the operation of the Defence Regulations or that the Act is otherwise inconsistent with the Regulations because, for example, the Act and the Regulations cannot be obeyed simultaneously or one takes away what the other confers. That is because the Mining Act does not confer rights to enter upon or use land in the perimeter area.  Rather, it simply allows that authority may be granted to persons to enter or conduct mining operations on that land.

61. The Defence Regulations do not operate to prevent entry or activity on the perimeter area, except if a defence operation or practice has been authorised by a chief of staff pursuant to reg 51(1). It would seem clear that, were authority to be granted pursuant to the Mining Act to enter upon or conduct mining activities on land in the perimeter area at a time or times specified in an authorisation under reg 51(1) for the conduct of a defence operation or practice, there would be direct inconsistency between that authorisation and the authority granted under the Mining Act.  That inconsistency would result from the inconsistent operation in the particular circumstances of the Mining Act and the Defence Regulations – "operational inconsistency", as it is called[42].

    [42]Victoria v The Commonwealth ("The Kakariki") (1937) 58 CLR 618; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 599-600 per Gaudron J.

62. Section 109 of the Constitution operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains[43].  Although there may be "operational inconsistency" between the Mining Act and the Defence Regulations in the event and to the extent that authority is conferred pursuant to the former to enter upon or engage in activities on land in the perimeter area at a time when a defence operation or practice is authorised under reg 51(1) of the Defence Regulations, that situation has not yet arisen. Thus, at the present time, there is no inconsistency between the Mining Act and the Defence Regulations.

    [43]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

    Implied immunity with respect to land "set aside for defence purposes"

63. The argument that there is an implied constitutional immunity from State laws which operate with respect to land "set side for defence purposes" must be rejected.  The Commonwealth Parliament has power to legislate with respect to defence[44] and, subject to just terms, to legislate for the acquisition of land or other property for purposes which include defence[45]. Moreover, s 52(i) of the Constitution confers immunity from State law in the sense that it makes Commonwealth legislative power with respect to "places acquired by the Commonwealth for public purposes" exclusive. Clearly s 52(i) includes places acquired for defence purposes.

    [44]Constitution, s 51(vi).

    [45]Constitution, s 51(xxxi).

64. Given the Commonwealth's power to legislate with respect to defence and the acquisition of property and, given also, the terms of s 52(i) of the Constitution, there is no room for an implication of the kind for which the Commonwealth contends.

    The State's demurrer with respect to the perimeter area

65. As there is no present inconsistency between the Mining Act and the Defence Regulations in their application to the perimeter area and no immunity of the kind for which the Commonwealth contends, the State's demurrer should be upheld so far as it concerns that area.

    The State's counterclaim:  acquisition other than on just terms

66. As already indicated, the counterclaim is confined to the freehold and leasehold lands.  It is in these terms:

    "If the operation of:

    (a)s 124 of the Lands Acquisition Act 1989 and s 53(2) of the Lands Acquisition Act 1955 (as applied by section 124(8) of the Lands Acquisition Act 1989 (Cth)); or

    (b)Part X of the Lands Acquisition Act 1989, including sections 51 and 53(2) of the Lands Acquisition Act 1955 (as applied by s 124(8) of the Lands Acquisition Act 1989); or

    (c)Section 8 of the Lands Acquisition Act 1955 and section 134 of the Lands Acquisition Act 1989; or

    (d)Regulations 49-53 of the Defence Force Regulations;

    have the consequence that:

    (e)the [Commonwealth] is entitled to prohibit or to regulate the exploration for, and mining of, all metals and minerals which are situated on or in land the subject of Melbourne Locations 3988, 3989 and 4004; or

    (f)the Mining Act 1978 is rendered invalid and inoperative so that the [State of Western Australia] is unable to utilise the metals and minerals or its rights associated therewith which are reserved to it;

    as the [Commonwealth] contends in its Statement of Claim,

    then those provisions effect an acquisition by the [Commonwealth] of property of the [State of Western Australia], otherwise than on just terms, and contrary to s 51(xxxi) of the Constitution."

67. Section 124(1) of the 1989 Acquisition Act permits of the making of regulations providing "for or in relation to prohibiting or regulating ...

    (a)the exploration for minerals on relevant land;

    (b)the mining for, or recovery of, minerals on or from relevant land;

    (c)the carrying on of operations, and the execution of works, for a purpose referred to in paragraph (a) or (b)."

    Section 51(1) of the 1955 Acquisition Act provides that "[t]he Governor-General may authorize the grant of a lease or licence ... to mine for minerals on land ... vested in the Commonwealth." And s 53(2) of that Act, relevantly allows the Minister to "authorize the grant of easements, or other rights, powers or privileges ... over or in connexion with, land vested in the Commonwealth." Both ss 51 and 53(2) are continued in force by s 124(8) of the 1989 Acquisition Act until regulations are made under s 124(1) of the latter Act.

68. Apart from s 124, no provision of Pt X of the 1989 Acquisition Act bears on the prohibition or regulation of exploration or mining on land vested in the Commonwealth. Further, neither s 8 of the 1955 Acquisition Act nor s 134 of the 1989 Acquisition Act bears on that issue. Each is concerned with the validity of assurances and provides to the effect that, where an instrument or assurance is executed by the Governor of a State to give effect to an agreement with the Commonwealth for the acquisition of an interest in Crown land, that instrument or assurance is "valid and effectual to vest the interest ... according to the tenor of the instrument or assurance."[46]

    [46]Section 134(1) of the 1989 Acquisition Act. Section 8(1) of the 1955 Acquisition Act is to the same effect except that it is concerned with "Crown land", rather than "an interest in Crown land".

69. Assuming that s 124(1) of the 1989 Acquisition Act and ss 51 and 53(2) of the 1955 Acquisition Act apply to minerals which are not owned or vested in the Commonwealth (although, that seems unlikely), it is possible that regulations might be made or steps taken to prohibit or regulate mining on land vested in the Commonwealth, including the freehold and leasehold lands in the defence practice area. In that event, the regulations or steps taken might operate to negate the reservations in the Crown Grants and the Special Lease. And in that event, a question could arise whether there was an acquisition other than on just terms. But until regulations are made pursuant to s 124(1) of the 1989 Acquisition Act or steps taken pursuant to ss 51 or 53(2) of the 1955 Acquisition Act, that question does not arise.

70. Even if regulations can be made under s 124(1) of the 1989 Acquisition Act or steps taken pursuant to ss 51 or 53(2) of the 1955 Acquisition Act to prohibit or regulate mining on the freehold and leasehold lands, no question arises as to inconsistency between those Acts and the Mining Act.  No question arises because the Mining Act does not apply to that land.  And for the same reason, no question arises as to inconsistency between the Mining Act and regs 49-53 of the Defence Regulations.

71. There remains the question whether regs 49-53 effect an acquisition of the minerals reserved to the State by the Crown Grants and the Special Lease.  The regulation central to this question is reg 51(1) which permits authorisations to be issued with the effect that no person, vehicle, vessel or aircraft can be on any part of the defence practice area at the time specified in the authorisations.

72. Neither reg 51(1) nor any of the other regulations in Pt XI of the Defence Regulations has any direct operation which might be thought to amount to an acquisition of property. It may be that authorisations under reg 51(1) have been so numerous that, if valid, the State's present rights of access and, perhaps, its rights to the minerals have been acquired, at least for the period during which those authorisations have been issued. However, that is simply a matter of speculation. The pleadings do not indicate how often authorisations have been given under reg 51(1), whether with respect to the freehold and leasehold lands or any other part of the defence practice area.

73. Even if it be the case that authorisations under reg 51(1) of the Defence Regulations have issued with such frequency as to raise a question of acquisition other than on just terms, no question would arise as to the validity of the regulation. That is because it would be read down within constitutional limits and, when read down in that way, it would not permit of authorisations effecting an acquisition of property other than on just terms.

74. It follows that none of the provisions specified in the State's counterclaim effect any acquisition of property.  Thus the Commonwealth's demurrer must be upheld.

    Conclusion

75. So far as concerns the freehold and leasehold lands, the State's demurrer should be overruled; so far as concerns the perimeter area, the State's demurrer should be upheld.  The Commonwealth's demurrer to the State's counterclaim should also be upheld.

76. The matter should be stood over to be listed before a single Justice to make orders for the disposition of the action, including a declaration that the Mining Act does not apply to the freehold and leasehold lands, and orders dismissing the State's counterclaim and providing as to costs, if they be sought.

77. McHUGH J.   Subject to two matters, I agree with the judgment of Hayne J in this matter.

78. The first matter to which I refer is his Honour's discussion of the capacity of the States to bind the Commonwealth.  I have expressed my views on that subject in my judgment in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[47] in terms which do not fully accord with the discussion of Hayne J in this case.  No doubt it will some day be necessary to determine whether the views expressed by Dawson, Toohey and Gaudron JJ in ReResidential Tenancies[48] to which Hayne J refers have finally settled the question of the States' capacity to bind the Commonwealth.  But it is not necessary to do so for the purposes of this case.

    [47](1997) 190 CLR 410.

    [48](1997) 190 CLR 410.

79. The second matter is whether the Crown grants created contractual rights in favour of the State.  I think that the better view of those instruments is that they created contractual rights in favour of the State.  But assuming that is so, those rights cannot bear on whether the Mining Act 1978 (WA), on its proper construction, applies to the land held by the Commonwealth. Nevertheless, I think that the arguable existence of these rights should be noted. If they exist, they may be exercised by the State against the Commonwealth. Their scope will depend not only on the terms of the grants but also on any restrictions which arise from valid Commonwealth legislation. If those contractual rights exist and if Commonwealth legislation has the effect of modifying them, the legislation may effectuate an acquisition of property within the terms of s 51(xxxi) of the Constitution. In that event, the modification will be unlawful unless the legislation provides just terms for the modification.

80. However, these matters do not arise for decision in this case.  The Commonwealth has not sought to deny that the State has contractual rights under the Crown grants; nor has the Commonwealth sought to argue that there is any legislation which would impact upon these rights.  Furthermore, the State has not attempted to enforce any contractual rights that it may have under the grants.  That being so, it is not necessary to determine either the scope of the grants or whether, if the State sought to rely upon them, they would or could be affected by Commonwealth legislation.

81. Subject to these matters, I agree with the judgment of Hayne J and the orders which he proposes.

82. GUMMOW J.   These cross‑demurrers raise issues of law respecting the relationship between Commonwealth and State law which bear upon the exploration for minerals at sites in Western Australia.  The Commonwealth (which is the plaintiff in the action) and the State (the first defendant) each assert that the operative legal regime is that established by its own laws.  In order to state the issues with more precision, it is convenient to begin with the immediately relevant federal law.

83. Section 124(1) of the Defence Act 1903 (Cth) ("the Defence Act") empowers the Governor‑General to make regulations, not inconsistent with the statute, which are necessary or convenient to be prescribed for carrying out or giving effect to the statute. Part XI (regs 48‑57C) of the Defence Force Regulations ("the Defence Regulations") made under the Defence Act is headed "DEFENCE PRACTICE AREAS". Part XI establishes a regime for the control of activities in defence practice areas. The phrase "defence practice area" means (reg 48) "any area of land, sea or air declared by the Minister under regulation 49". Regulation 49(1) empowers the Minister, by notice published in the Gazette, to declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice.

84. The Lancelin Training Area comprises defence practice areas which were declared for naval gunnery and air to surface weapons firing purposes by notices under reg 49(1) dated respectively 5 July 1985 and 17 October 1994. The Lancelin Training Area is situated on the coast of Western Australia, about 130 kms north of the naval base at HMAS Stirling, Cockburn Sound. Within, but not occupying the whole of, that area at Lancelin ("the Defence Practice Area") lie three parcels of land. In respect of two of these parcels ("Melbourne Location 3989" and "Melbourne Location 4004") the Commonwealth is registered as owner in fee simple under the Transfer of Land Act 1893 (WA) ("the Transfer of Land Act"). In respect of the third ("Melbourne Location 3988") the Commonwealth is lessee under a Special Lease from the State of Western Australia ("the Special Lease"). Save where the contrary is indicated, the term "Melbourne Locations" will be used in these reasons to identify the two freehold Melbourne Locations 3989 and 4004.

85. The Special Lease was acquired to provide a "buffer area".  It was executed and registered on 3 October 1978.  The term is 21 years from 1 July 1978 and there is a yearly rent of $360.  The Commonwealth's title to Melbourne Location 3989 was registered on 7 November 1977 and that to Melbourne Location 4004 on 9 January 1978.  The areas of the Melbourne Locations and of the Special Lease are respectively 591.7527 ha, 336.8413 ha and 11,853 ha.  The grants of the Melbourne Locations were made in consideration of payments by the Commonwealth to the State of $1,480.50 and $842 respectively.  The agreed price of $1,480.50 corresponded with a valuation and that of $842 at the time was considered reasonable by a valuer.

86. Section 7(4) of the Land Act 1933 (WA) ("the Land Act")[49], at all material times, has been in the following form:

    "The Governor is authorized to agree with the Governor General of the Commonwealth or other appropriate authority of the Commonwealth for the sale or lease of any Crown lands to the Commonwealth and to execute any instruments or assurance for granting, conveying or leasing the land to the Commonwealth."

    The title of the Commonwealth to the two Melbourne Locations and under the Special Lease was acquired consensually and respectively as grants and a lease pursuant to s 7(4) of the Land Act. It will be necessary later in these reasons to refer to other provisions of s 7 of the Land Act and to relevant enabling laws of the Commonwealth. It should be noted at this stage that the Lands Acquisition Act 1955 (Cth) ("the Acquisition Act") was effective by its own force to vest title in the Commonwealth. Section 8(1) thereof stated:

    "Where an agreement is entered into by the Commonwealth with a State for the acquisition of Crown land, an instrument or assurance executed by the Governor of that State for the purpose of carrying out the agreement is, by force of this Act and notwithstanding anything in the law of the State, valid and effectual to vest the land in the Commonwealth according to the tenor of the instrument or assurance."

    The Acquisition Act was repealed by the Lands Acquisition (Repeal and Consequential Provisions) Act 1989 (Cth) with effect at the commencement on 9 June 1989 of the Lands Acquisition Act 1989 (Cth) ("the 1989 Act").

    [49]The Land Act was repealed by s 281 of the Land Administration Act 1997 (WA) but with the transitional, savings and validation provisions set out in Sched 2 thereof.

87. Each of the Crown grants for the Melbourne Locations and the Special Lease contain what are identified therein as savings and reservations in respect of what might shortly be called mines and minerals.  The term "reservation" is to be understood to identify not subject‑matter newly created out of the grant or demise but that which was excepted or kept back from the grant or demise[50].  The Commonwealth does not contend that it has the property in the minerals so reserved to the State.  However, it contends that the law of the State is ineffective to dispose of rights to the surface and over the land embraced in the grants to the Commonwealth.

    [50]Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 194; Wik Peoples v Queensland (1996) 187 CLR 1 at 200‑201; cf Wardle v Manitoba Farm Loans Association [1956] SCR 1 at 11‑12.

88. The second defendants ("the Wardens") are the Wardens of South West Mineral Field established under Pt II (ss 10‑16) of the Mining Act 1978 (WA) ("the Mining Act"). Part IV, Div 2 (ss 56B‑70) provides for the grant by the Minister for Mines of exploration licences after the taking of steps which may involve the furnishing of a warden's report (s 59). The Minister is bound to consider such a report but may grant or refuse to grant an exploration licence irrespective of whether the warden has recommended for or against a grant[51]. The third and fourth defendants ("the Applicants") are companies incorporated under the law of the State and each has lodged applications for the grant of exploration licences under the Mining Act. The areas the subject of the applications are wholly within the Defence Practice Area. One application (No 70/1425) is in respect of an area partly within the Special Lease. The others (Nos 70/1542 and 70/1549) are areas partly within one or more of the Melbourne Locations and the Special Lease. In each case, the balance of the areas which fall outside the Melbourne Locations and the Special Lease, as the case may be, still fall within the Defence Practice Area.

    [51]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 166, 170‑175.

89. Section 53(2) of the Acquisition Act stated:

    "The Minister may authorize the grant of easements, or other rights, powers or privileges (other than leases or occupation licences), over or in connexion with, land vested in the Commonwealth."

    By instrument dated 29 November 1985 ("the Commonwealth Authority"), which recited the effect of s 53(2), that there was vested in the Commonwealth land within the State of Western Australia, minerals in or under which were owned by the State, and that the State desired empowerment to grant exploration licences with respect thereto, the Minister for Local Government and Administrative Services, on certain conditions, authorised the State to grant such exploration licences "on behalf of the Commonwealth". The State Minister for Mines does not intend to exercise the Commonwealth Authority in dealing with the Applicants. In substance, the case for the State is that it is unnecessary for the State Minister to rely upon any authority in addition to that conferred by State law, in particular by the Mining Act.

90. Exploration licences if granted to the Applicants would confer certain rights upon them.  These would include authority to enter and re‑enter the land subject to the licence and to perform operations such as the digging of pits and the sinking of bores in or under the land (Mining Act, s 66).  The Commonwealth submits that s 66 is ineffective to confer such authority not only with respect to so much of the Defence Practice Area as comprises the freehold and leasehold areas, being the land in the Melbourne Locations and under the Special Lease, but also with respect to the balance of the Defence Practice Area.  However, as will appear, the declaratory relief to which the Commonwealth is entitled is limited to the lack of State authority with respect to the freehold and leasehold areas.

    The issues on the demurrers

91. By its Amended Statement of Claim, the Commonwealth claims declarations that the Mining Act "does not bind the Crown in the right of the Commonwealth", that the Mining Act is invalid in so far as it purports to apply to land comprised within the Defence Practice Area or to the Special Lease or the Melbourne Locations, and that the Wardens do not have jurisdiction to deal with applications with respect to those areas.

92. The State demurs. The grounds for the State's demurrer are that (i) the Mining Act "binds the Crown in the right of the Commonwealth" and applies to the land within the Melbourne Locations and the Special Lease; (ii) contrary to the position taken by the Commonwealth, no relevant provisions of the Mining Act in their application to the Defence Practice Area, the Melbourne Locations and the Special Lease are rendered invalid by s 109 of the Constitution by reason of any inconsistency with the law of the Commonwealth, including Pt XI of the Defence Regulations; (iii) this has two limbs, namely (a) the Melbourne Locations are not "places acquired by the Commonwealth" within the meaning of s 52(i) of the Constitution and, in the alternative, (b) the Mining Act applies to the Melbourne Locations by virtue of the operation of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the Application of Laws Act"); (iv) the Mining Act, in so far as it applies to land within the Melbourne Locations and the Special Lease, does not interfere with or adversely affect the capacity of the Commonwealth to control and make use of the land nor does it derogate from or adversely affect the interest therein held by the Commonwealth; and (v) in the alternative to (ii), s 64 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") renders the Mining Act binding upon the Commonwealth, at least in the present suit in this Court.

93. If on its face the Application of Laws Act did not apply to the Melbourne Locations, ground (iii)(b) would be determined adversely to the State, even if the outcome of ground (iii)(a) were that the Melbourne Locations are not "places" upon which s 52(i) of the Constitution operates. Ground (iv) does not arise if the Mining Act does not apply to the areas of the Melbourne Locations and the Special Lease. There would then be no occasion to consider the decision in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[52].

    [52](1997) 190 CLR 410.

94. By its counterclaim, the State claims a declaration that, in so far as the laws of the Commonwealth relied upon by the Commonwealth to support its claim of inconsistency with the Mining Act result in the acquisition by the Commonwealth of the property of the State, they are invalid. To this the Commonwealth demurs. It does so on the grounds that (i) none of the laws in question "effect an acquisition of property on other than just terms"; (ii) the Commonwealth acquired its interest in each of the Melbourne Locations and the Special Lease "by voluntary agreement, and as such acquired its property on just terms"; and (iii) Pt XI of the Defence Regulations, in reg 57, "allows for the acquisition of property on just terms". If the Commonwealth fails upon its claims of inconsistency, the occasion for the counterclaim by the State, and the demurrer by the Commonwealth to it, will not arise.

    The subject‑matters of the grants and Special Lease

95. It is necessary to begin by determining the nature and extent of the subject‑matter comprised in the grants of the Melbourne Locations and the demise by the Special Lease. These were authorised by s 7(4) of the Land Act which provided for the making and implementation of agreements between the Governor and the Governor‑General with respect to "any Crown lands". In s 3(1), "Crown Lands" was defined, with immaterial exceptions, to mean and include "all lands of the Crown vested in Her Majesty".

96. The term "lands" was not defined. However, s 7(2) spoke of "grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate". This indicates a recognition in the Land Act of the distinction between the identity of the particular estate or interest in land which is the subject of the grant and the quantum of that estate or interest on the one hand and the ordinary meaning of "land" on the other. This ordinary meaning was identified by Knox CJ and Starke J in The Commonwealth v New South Wales[53] as some "defined portion of the terrestrial globe".

    [53](1923) 33 CLR 1 at 23. See also the drawing of this distinction in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 13, 28, 37; The Commonwealth of Australia v Maddalozzo (1980) 54 ALJR 289 at 290, 292, 294; 29 ALR 161 at 164‑165, 168‑169, 172‑173; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 629.

97. The State referred to the principle that the words of an instrument are to be taken against the party employing them except in the case of the Crown and emphasised that here the grantor and lessor was the Crown.  The consequence would be to render applicable the statement by Slade J in Earl of Lonsdale v Attorney‑General[54]:

    "[I]f the wording of a grant by the Crown is clear and unequivocal, the grantee is entitled to rely on it as much as if the grantor had been any other subject of the Crown; if, on the other hand, the wording is obscure or equivocal, the court must lean towards the construction more favourable to the Crown, unless satisfied that another interpretation of the relevant words in their context is the true one."

    However, the authorities, as is indicated in the statement by Slade J, have been concerned with cases arising between Crown and subject.  Here, the parties to the instruments are two bodies politic.  In those circumstances, the better approach is merely to seek the proper construction of the instruments in the light of the surrounding circumstances at the time they were executed[55].

    [54][1982] 1 WLR 887 at 901; [1982] 3 All ER 579 at 590‑591. See also Hume Steel Ltd v Attorney‑General (Vict) (1927) 39 CLR 455 at 463, 465; Minister for Mineral Resources v Brantag Pty Ltd, unreported, New South Wales Court of Appeal, 20 November 1997 at 7 per Mason P.

    [55]Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347‑352; cf Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912‑913; [1998] 1 All ER 98 at 114‑115.

98. In each grant in respect of the Melbourne Locations, the subject‑matter, to be held by the Commonwealth in fee simple, was identified as "the natural surface and so much of the land as is below the natural surface to a depth of 12.19 metres" of the tract or parcel of land comprising the specified hectares.  The demise the subject of the Special Lease also was identified as the natural surface and so much of the land as is below the natural surface to a depth of 12.19 metres of the piece or parcel of land containing the specified hectares.

99. Each Melbourne Location grant contained reservations expressed relevantly in identical terms[56].  There was (i) a reservation in favour of the Crown in right of the State of all minerals "in and under the said land, with full liberty at all times to search and dig for and carry away the same; and for that purpose to enter upon the said land or any part thereof"; (ii) a power to the Crown, and any person or persons acting on that behalf by authority of the Crown, to resume not more than one‑twentieth of the whole of the lands granted for the purpose of exercising the power to search for minerals reserved in (i); and (iii) a separate reservation in favour of the Crown of petroleum, as defined in the Petroleum Act 1967 (WA) ("the Petroleum Act"), with the right reserved to the Crown and persons authorised by it to have, subject to and in accordance with the provisions of the Petroleum Act, access to the land for the purpose of searching for and the operations of obtaining petroleum.

    [56]The text of the reservation in respect of Melbourne Location 3989 was as follows:

    "PROVIDED, NEVERTHELESS, that, subject to section 141 of the Land Act, 1933, it shall be lawful for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume and enter upon possession of any part of the said land which it may at any time by Us, Our heirs and successors, be deemed necessary to resume for roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour or river improvement works, drainage, or irrigation works, or quarries, and generally for any other works or purposes of public use, utility, or convenience, and for the purpose of exercising the power to search for minerals hereinafter reserved, and such lands so resumed to hold to Us, Our heirs and successors, as of Our or their former estate without making to the said Grantee [the Commonwealth], or any person lawfully claiming under him, any compensation in respect thereof, so nevertheless, that the land so to be resumed shall not exceed one‑twentieth part of the whole of the lands aforesaid, and that no such resumption be made of the part of any lands upon which any buildings may have been erected, or which may be in use as gardens, or otherwise, for the more convenient occupation of any such buildings, or on which any other improvements as defined by the Land Act, 1933, have been made, without compensation: AND PROVIDED, ALSO, that it shall be lawful at all times for Us, Our heirs and successors, or for any person or persons acting in that behalf, by Our or their authority, to search and dig for and carry away any stones or other materials which may be required for making or keeping in repair any roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour works, breakwaters, river improvements, drainage, or irrigation works, and generally for any other works or purposes of public use, utility, or convenience, without making to the said Grantee, or any person claiming under him, any compensation in respect thereof; and we do hereby save and reserve to Us, Our heirs and successors, all Mines, of Gold, Silver, Copper, Tin, or other Metals, Ore, and Minerals, or other substances containing Metals, and all Gems or Precious Stones and Coal or Mineral Oil and all Phosphate Substances in and under the said land, with full liberty at all times to seat and dig for and carry away the same; and for that purpose to enter upon the said land or any part thereof: and we do hereby, save and reserve to Us, Our heirs and successors all petroleum (as defined in the Petroleum Act, 1967, and all amendments thereof for the time being in force) on or below the surface of the said land with the right reserved to Us, Our heirs and successors and persons authorised by Us, Our heirs and successors to have access to the said land for the purpose of searching for and for the operations of obtaining petroleum in any part of the said land subject to and in accordance with the provisions contained in the Petroleum Act, 1967, and all amendments thereof for the time being in force."

257. For these reasons the Mining Act does not prescribe a regime for exploration or mining of the three parcels of land held by the Commonwealth in freehold or leasehold. But, of course, other considerations arise in relation to the balance of the Defence Practice Area. That is unalienated Crown land of the State of Western Australia. Subject to questions of inconsistency and acquisition other than on just terms, this land is open for mining in accordance with those provisions of the Mining Act that regulate mining and exploration on Crown land.

     Inconsistency and Acquisition of Property

258. No question of inconsistency between the Mining Act and Pt X of the Lands Acquisition Act 1989 arises. Neither the Mining Act nor the terms of the reservations on the Crown Grants and Special Lease authorise the granting of rights to explore for or mine on the three parcels of land in which the Commonwealth has an interest. Although the Mining Act does authorise the granting of rights to explore for or mine on the balance of the Defence Practice Area, the land has not been acquired by the Commonwealth under its lands acquisition legislation.

259. For the reasons given by Gummow J, there may be a question of inconsistency that arises from the particular operation of Pt XI of the Defence Regulations (dealing with Defence Practice Areas) and the Mining Act and a question of acquisition otherwise than on just terms. But those questions would arise (and could be resolved) only in the light of the particular circumstances of a concrete case. Thus, to take only one obvious example, very different considerations may arise if unconditional permission were given to conduct mining operations on the State's Crown land in the Defence Practice Area and notice was then given of a year long defence operation affecting that area, from the considerations that would arise if the permission to conduct mining operations was conditional, or if a particular defence operation would take only a few hours or days.

260. For the reasons given by Gummow J, I agree that the declaration sought by the State in its counterclaim should not be made.

261. I agree with the orders proposed by Gummow J.

262. CALLINAN J. In these reasons I refer to the land contained in the deeds of grant and the leased land as the alienated land, and the land outside the alienated land but covered by the Declaration made under the Defence Force Regulations (Cth) as the unalienated land.

263. Subject to the qualifications and additional matters which I will state I agree with the following conclusions and reasons for judgment of Hayne J:  that as a matter of construction the Mining Act 1978 (WA) has no application to the lands contained in the alienated land; that the Commonwealth Places (Application of Laws) Act 1970 (Cth) does not apply the Mining Act to the alienated land; and, that s 64 of the Judiciary Act 1903 (Cth) does not have the effect of enabling Western Australia and the Wardens of the South West mineral field to grant rights and interests in the alienated land in accordance with the Mining Act. 

264. However I also agree with the reasons and conclusion of Kirby J, again, subject to such qualifications as I state, that there is a direct conflict between State law, that is State law entitling the State to explore for minerals and mine them on any of the lands, and the Declaration made under the Defence Force Regulations, if they are effective according to their tenor.

     The effect of the reservations

265. Leaving aside for present purposes the effect of the Declaration, in my opinion, the reservations in the grants and the lease would entitle the State of Western Australia to search for, win and transport minerals from the alienated land (but not pursuant to the Mining Act).  Their language is explicit and ample for those purposes.  The reservations were obviously made for good reason.  Their language should be given practical utility.  Indeed, even in the absence of their explicit language, those rights would probably still be exercisable by the State.  As Porter LJ said in Borys v Canadian Pacific Railway Co[247], delivering the advice of the Committee:

     "… the absence of a clause giving a right to work does not abrogate or limit the powers of the respondents.  Inherently the reservation of a substance, which is of no advantage unless a right to work it is added, makes the reservation useless unless that right follows the grant.  The true view is that such a reservation necessarily implies the existence of power to recover it and of the right of working."

     [247][1953] AC 217 at 227-228.

266. Counsel for the Commonwealth, in argument went so far as to assert that the reservations would permit mining of a minimal kind only, mining he argued, by pick and shovel only perhaps.  At the time that the grants and lease were made large scale mining operations, utilizing open cuts, were commonplace in Australia.  That the possibility of operations of some magnitude was within the contemplation of the parties can be inferred from the reservation in the grants of the right to resume up to one twelfth of the land contained in them to explore for minerals.  The argument of the Commonwealth must be rejected.

267. To hold otherwise would be to confer upon the Commonwealth proprietary and other rights which it chose not to acquire and for which it did not pay.  For reasons which I will state I am of the opinion that a right to sterilize, restrict or adversely affect the rights of exploration and mining in or with respect to land, is a right for which the Commonwealth, acquiring or deriving the benefit of that right should pay compensation on just terms. 

     The Defence Force Regulations and the declaration made under them

268. The Regulations made under the Defence Act 1903 (Cth) relevantly provide as follows:

     "Declaration of defence practice area

     49(1) The Minister may, by notice published in the Gazette, declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice.

     (2) The Minister shall not make a declaration under subregulation (1) in respect of private land unless:

     (a) the consent in writing of the occupier of the land has first been obtained; or

     (b) it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out on that land a defence operation or practice of a kind specified in the notice without that consent.

     (3) The Minister shall not, in a notice under subregulation (1), declare an area of sea or air to be a defence practice area unless it is an area of sea or air in which it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out a defence operation or practice of the kind specified in the notice.

     (4)  Where the Minister declares a defence practice area under subregulation (1), a chief of staff may from time to time, by notice published in the Gazette, authorise the installation, for a period not exceeding 2 years that is specified in the notice, of equipment for defence purposes:

     (a)    in an area of sea that is, or is part of, the defence practice area; or

     (b)    on the sea-bed or in the subsoil beneath that area; or

     (c)    in the superjacent waters.

     Tabling and disapproval of declarations

     50(1) Where private land is the subject of a declaration made under subregulation 49(1), the Minister shall cause a copy of the declaration to be laid before each House of the Parliament within 15 sitting days of that House after the date on which the declaration was made.

     (1A) If a copy of a declaration is not laid before each House of the Parliament in accordance with the provisions of subregulation (1), the declaration shall be void and of no effect.

     (2) If either House of the Parliament, within 15 sitting days of that House after a copy of a declaration referred to in subregulation (1) has been laid before that House, passes a resolution disapproving of the declaration, then:

     (a) if the declaration has not come into operation – it shall not come into operation; or

     (b)if the declaration has come into operation – the declaration shall cease to have effect on the day on which the resolution is passed.

     Authorisation to carry out a defence operation or practice

     51(1) A chief of staff may, in writing, authorize the carrying out in a defence practice area, at a time specified in the instrument, of a defence operation or practice in which:

     (a)    members of the Defence Force;

     (b)    members of the armed forces of a country other than Australia; or

     (c) members of the Defence Force and the armed forces of a country other than Australia;

     are to take part.

Notice to public of operation or practice

52(1) Where, under subregulation 51(1), a person authorizes the carrying out of a defence operation or practice, that person shall cause such notice of the operation or practice to be given as is reasonably required for the protection of persons or property that may be affected by that operation or practice having regard to:

(a)    the time and place of the carrying out of the operation or practice;

(b) the nature of the equipment and ammunition proposed to be used in the course of that operation or practice and the risk to those persons or that property or the injury or damage that is likely to arise from that use; and

(c)the forms of communication available to that person for the giving of that notice to the public.

(2) Where a person authorises the installation of equipment under subregulation 49(4), the person must cause such notice:

(a) of the installation as is reasonably required to advise persons in reasonable proximity, within the defence practice area concerned, of the place where the equipment is installed; and

(b) of activities of those persons that would be likely to disturb the equipment or interfere with its operation;

to be given to those persons, having regard to:

(c)    the nature of the equipment; and

(d) the risk of damage to the equipment or interference with its operation; and

(e) the forms of communication available to that person for the giving of that notice to those persons.

Prohibition of being in a defence practice area

53(1) A person shall not, without reasonable excuse, be in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice, except with the permission of:

(a)the chief of staff or other officer who authorized the operation or practice; or

(b)    an officer participating in the operation or practice.

…

(2) A person shall not, without reasonable excuse, permit any vehicle, vessel or aircraft to be in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out of a defence operation or practice, except with the permission of:

(a)the chief of staff or other officer who authorized the operation or practice; or

(b)  an officer participating in the operation or practice.

…

(2A)Where the installation of equipment is authorised under subregulation 49(4), a person must not knowingly disturb the equipment or interfere with its operation, except with the permission of:

(a)    a chief of staff; or

(b)an officer participating in a defence operation or practice in relation to which the equipment was installed.

…

(3) Permission under subregulation (1), (2) or (2A):

(a)may be given if it is reasonably required for the protection of persons and property in the defence practice area or for the safety or defence of the Commonwealth;

(b)    shall be in writing;

(c)    is effective for such period as is specified in the instrument; and

(d) is subject to such conditions (if any) specified in the instrument as are reasonably required for the protection of persons and property in the defence practice area or for the safety or defence of the Commonwealth.

(4) Without limiting the generality of subregulation (3), the chief of staff or other officer giving permission under subregulation (1), (2) or (2A) may impose conditions in relation to the conduct of persons in a defence practice area or in relation to a vehicle, vessel or aircraft in that area.

(5) A person shall not, without reasonable excuse, fail to comply with a condition specified in an instrument of permission given to the person under this regulation.

…

(6) Where a vehicle, vessel or aircraft  is in a defence practice area in contravention of subregulation (2), (2A) or (5) each of:

(a)in the case of a vehicle – the driver, owner and the hirer (if any) of the vehicle;

(b)in the case of a vessel – the master, owner and the charterer (if any) of the vessel, and the agent (if any) for the vessel; or

(c)in the case of an aircraft – the pilot, owner and the charterer (if any) of the aircraft, and the agent (if any) for the aircraft;

is guilty of an offence against subregulation (2), (2A) or (5), as the case may be, but an offender is not liable to be punished more than once in respect of the same offence.

…

Removal from defence practice area

54(1) A person:

(a) who, in contravention of regulation 53, is, or permits a vehicle, vessel or aircraft to be, in a defence practice area at a time specified in an instrument under subregulation 51(1); or

(b) who fails to comply with a condition specified in an instrument of permission given to that person under regulation 53;

may, without affecting any other proceedings that may be taken against the person, be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.

(2) Any vehicle, vessel or aircraft in a defence practice area in contravention of regulation 53 may be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.

Duties etc. of authorized officers

55 Where a member of the Defence Force gives a direction to a person under regulation 54, the member shall, if requested by that person, produce evidence that he or she is a member of the Defence Force for inspection by that person and, if the member fails to do so, that person is not obliged to comply with that direction.

Obstruction etc. of member of Defence Force etc.

56 A person shall not, without reasonable excuse, obstruct or hinder a member of the Defence Force, a member or special member of the Australian Federal Police or a constable in the exercise by that member, special member or constable of a power conferred by this Part or obstruct or hinder a person acting under a direction referred to in regulation 54.

…

Compensation for loss, injury or damage

57(1) The Commonwealth shall pay reasonable compensation to a person who:

(a)sustains loss or damage by reason of entry upon, and survey of, land in accordance with regulation 58;

(b)sustains loss or damage by reason that an area is declared to be a defence practice area under subregulation 49(1);

(c) sustains loss or damage by reason of the use of land for the purposes of a defence operation or practice authorized under regulation 51; or

(d)sustains loss or damage otherwise caused by the operation of this Part.

(2) A claim for compensation under this regulation shall:

(a)    be in writing, signed by the person making the claim; and

(b)    be addressed to the Secretary.

(3) Where no decision is made in respect of a claim for compensation within the period of 60 days after the date on which the claim was made, a decision refusing compensation shall be deemed to have been made."

269. There are several matters to notice about the Regulations.  A Declaration made under them may be made unilaterally.  A Declaration may be made as a matter of expediency.  Equipment, in the discretion of a chief of staff may be installed for up to two years (and presumably for successive periods of two years after notice published in the Gazette) anywhere within a declared area.  A Declaration has, in a relevant respect, the character of subordinate legislation in that it must be laid before Parliament and be subject to disallowance there.  It is entirely within the discretion of a Chief of Staff when, and where a defence operation or practice may be carried out.  It is impermissible for a person or a person's vehicle, vessel or aircraft to be in an area subject to a Declaration, at the place of, and during the period of a notified defence practice without reasonable excuse.  Conditions with respect to the presence of a person in a defence practice area may be imposed by the Chief of Staff or another officer.  A breach of a notification or condition constitutes an offence.

270. Regulation 57 is concerned with the payment of "reasonable compensation".  The Commonwealth has 60 days within which to decide upon a claim.  There is no provision for the determination of a claim by a court, or any procedure for its enforcement, or the payment of interest.  The Regulations in this regard may be contrasted with the elaborate provisions in respect of these matters contained in the Lands Acquisition Act 1989 (Cth) Pts VII and VIII.

     Has there been an acquisition of property?

271. Loss or damage, the term used in reg 57, may not be a term entirely apt to describe a diminution in value of real property or its utility for mining purposes (permanent or temporary) by reason of what, if they were not otherwise authorised, would be regarded as major trespasses and nuisance able to be committed at will by a stranger.

272. A right to mine is a valuable right.  But that is not the only valuable right that a State has with respect to land in which there may be minerals.  The mere possibility of their existence will often, indeed usually, give rise to a valuable right, or interest, the right to explore for them, an assignable right and one for which a State may expect to receive rent or other consideration, and other benefits, both tangible and intangible, such as, perhaps, infrastructure on, and in the vicinity of the land, and economic and other advantages in a region that it may wish to promote.  Interference with a right of that kind plainly reduces the value of such a right either temporarily or permanently.  Here the measure of control for which the Commonwealth contends and which the Declaration commands would involve a very substantial restriction upon a right to explore for, win and transport minerals.  Whilst the test, whether what the Commonwealth has done (here the making of the Declaration) amounts to an "acquisition" in constitutional terms will depend on what might be able to be done under the statute or instrument authorising or effecting the "acquisition", rather than what the Commonwealth may at any one time in its discretion actually choose to do, in this case, the uncontradicted pleaded facts give a good insight into just how intrusive and incompatible with mining the Commonwealth's activities under the Declaration may be.  In this regard I refer to, without repeating, the details of the extensive periods and frequency of usage by the defence forces, which are set out in the reasons for judgment of Kirby J.

273. In Minister of State for the Army v Dalziel[248] Starke J said:

     "Property, it has been said, is nomen generalissimum and extends to every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and choses in action.  And to acquire any such right is rightly described as an ‘acquisition of property'.  On the other hand a mere personal licence such as is not assignable would not be rightly described as property[249]. There is no doubt, I think, that taking possession of land pursuant to reg 54 confers a definite legal right upon the Commonwealth in the nature of property[250], but I should not think that the right acquired pursuant to reg 54 is assignable.

     Now is this right of the Commonwealth an acquisition of property within the meaning of the Constitution?  It is said in the Imperial Dictionary that to gain a mere temporary possession of property is not expressed by the word acquire, but by such words as gain, obtain, procure, as to obtain (not acquire) a book on loan. But the construction of the Constitution cannot be based on such refinements. However, the ownership of the land the possession of which is taken under reg 54 is not transferred to the Commonwealth nor is any estate therein, but a temporary possession. The right conferred upon the Commonwealth may be classified, I think, under the denomination of jura in re aliena, and so a right of property, the subject of acquisition."

     [248](1944) 68 CLR 261 at 290.

     [249]cf Leake, Uses and Profits of Land, (1888) at 196-199.

     [250]cf Pollock and Wright, Possession in the Common Law, (1888) at 22-23.

274. And McTiernan J in the same case said[251]:

     "The word 'property' in s 51 (xxxi) is a general term. It means any tangible or intangible thing which the law protects under the name of property. The acquisition of the possession of land is an instance of the acquisition of property."

     [251](1944) 68 CLR 261 at 295.

275. The intervention of governments acting by the unilateral stroke of the executive pen, may produce quite different consequences from the transactions of ordinary citizens.  "[I]nnominate and anomalous interests" may be created[252].  Take this case.  It is not easy to find any perfect analogy between a proprietary right or interest that might be created in private law and what the Declaration, if valid, does for, and provides to the Commonwealth.

     [252]Bank of NSW v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 349 per Dixon J.

276. In The Tasmanian Dam Case[253] Deane J held that the prohibitions imposed by the World Heritage (Western Tasmania Wilderness) Regulations (Cth) and the World Heritage Properties Conservation Act 1983 (Cth), s 11 constituted an acquisition of property within the meaning of s 51(xxxi) of the Constitution, the property in question being the benefit of the prohibition of the exercise of the right to use and develop the land. But his Honour also held that other restrictions upon activities said to be of a less restrictive kind imposed by some other sections of the Commonwealth legislation precluded the proclamations in respect of those provisions from constituting an acquisition of property.

     [253]The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1.

277. His Honour also held that such acquisitions of property as had purportedly occurred were invalid because the relevant section of the legislation (s 17 of the World Heritage Properties Conservation Act) did not confer an immediate right to be paid compensation and was therefore intrinsically unfair. 

278. Mason J in his reasons drew a distinction between the approach to the Fifth Amendment to the United States Constitution, "… nor shall private property be taken for public use, without just compensation" and s 51(xxxi) of the Australian Constitution. His Honour said of the latter[254]:

     "To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."

     [254]The Tasmanian Dam Case (1983) 158 CLR 1 at 145. In Pennsylvania Coal Co v Mahon 260 US 393 (1922), the Supreme Court of the United States ruled that making it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it: at 414 per Holmes J delivering the opinion of the Court. But the Court said such matters were discretionary; they were matters of degree.

279. Mason J (whose reasoning was similar to that of Murphy J[255] and Brennan J[256]) then cited the following passage of Dixon J from the Bank Nationalisation Case[257]:

     "I take Minister of State for the Army v Dalziel[258] to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. Section 51(xxxi) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect."

     [255]The Tasmanian Dam Case (1983) 158 CLR 1 at 181-182.

     [256]The Tasmanian Dam Case (1983) 158 CLR 1 at 246-248.

     [257]Bank Nationalisation Case (1948) 76 CLR 1 at 349.

     [258](1944) 68 CLR 261.

280. For myself I would not regard that passage as authority for the proposition that, for there to be an acquisition within the meaning of s 51(xxxi), the Commonwealth must necessarily in all cases and for all purposes have acquired an interest in property, however slight or insubstantial it may be. The real point about the exercise of power in respect of property by governments (other than town planning and other special or like powers which may require separate consideration) is that they can effectively achieve the benefit of many aspects of proprietorship without actually becoming proprietors, either of a property as a whole or some component of it.

281. As I have already suggested analogies with dealings between voluntary parties at arms length in a free market place are in many respects illusory in the context of the exercise of government power falling short of the assumption of ownership by government.  To be able to prevent or restrict the usage of property in a certain way is just as much an incident of ownership as is an ability to use it without restriction.  It is no answer to say that an owner who remains the owner of the property in name, and can use it perhaps for one or two limited purposes, but not for other proper and permissible, valuable purposes, still has and enjoys proprietary rights.

282. But in any event, in this case, and in my view in The Tasmanian Dam Case, there has, in a real sense, been an acquisition of something in the nature of a valuable item of property.  The Declaration may be compared to a restrictive convenant:  if one person (for his or her own reasons) wishes to sterilize or restrict the usages of another person's land, the latter, in a free market place, would demand recompense, and the former would expect to have to pay it.  The parties' rights and obligations would be defined by a restrictive covenant, or perhaps in some cases an easement.  The benefit of each of these is valuable, and of a proprietary kind and may, in some circumstances, be assignable[259].  The covenantor or grantor (and successors) wishing to be relieved of the burden, are potential purchasers.  And, subject to the terms of the covenant and legislation governing assignments, persons other than the covenantor and successors, may also be potential purchasers and assignees[260].

     [259]Assignability may not be a definitive test of property. See Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 at 245 per Isaacs J.

     [260]See Bradbrook and Neave, Easements and Restrictive Covenants in Australia, (1981) par 1315 and following; Butt, Land Law, 3rd ed (1996) at pars 1713-1726.  See also Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 72 ALJR 621; 152 ALR 149.

283. In The Tasmanian Dam Case[261], Deane J said that "laws which merely prohibit or control a particular use of, or particular acts upon, property plainly do not constitute an 'acquisition'".  With respect I doubt whether such a statement can categorically be made.  However, in deciding that the legislation in The Tasmanian Dam Case went beyond, as his Honour had defined it, mere extinguishment or deprivation, he used language which might, with some adaptations be employed to describe the ambit of the Declaration made under the Regulations in this case[262]:

     "In the present case, the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the HEC land.  The range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the condition which the Commonwealth, for its own purposes, desires to have conserved.  In these circumstances, the obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported acquisition of property for a purpose in respect of which the Parliament has power to make laws.  The 'property' purportedly acquired consists of the benefit of the prohibition of the exercise of the rights of use and development of the land which would be involved in the doing of any of the specified acts.  The purpose for which that property has been purportedly acquired is the ‘application of the property in or towards carrying out’ Australia’s obligations under the Convention[263].  The compensation which would represent ‘just terms’ for that acquisition of property would be the difference between the value of the HEC land without and with the restrictions."

     [261](1983) 158 CLR 1 at 283.

     [262](1983) 158 CLR 1 at 287. See also Gummow J in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 595, 602, 634-635.

     [263]See Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 372 per Dixon CJ.

284. The caution expressed by Hamilton[264] in my opinion has much to commend it:

     "A necessary first step in formulating a test for s 51(xxxi) … is for Australian courts firmly to grasp the principle that the various separate rights of user of property are in themselves property. The Court in Dalziel's case[265] recognized that by taking away some rights of user, in particular the right to possession, the Commonwealth could make property practically worthless. … What needs to be recognized is that property is a bundle of rights, and each right in that bundle is itself property the subject of acquisition.  Whenever the Commonwealth seeks to control the exercise of one of the rights in the bundle a question of acquisition is on the threshold."

     [264]Hamilton, "Some Aspects of the Acquisition Power of the Commonwealth", (1973)  5 Federal Law Review 265 at 291.

     [265](1944) 68 CLR 261.

285. It follows, in my opinion, that the Declaration made under the Regulations in this case involves a purported acquisition of property within the meaning of s 51(xxxi).

     Just terms?

286. In Grace Bros Pty Ltd v The Commonwealth[266], Dixon J referred to the need for legislation authorising an acquisition by the Commonwealth to provide fair and just standards of compensation:

     "The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country.  I say ‘the individual’ because what is just as between the Commonwealth and a State, two Governments, may depend on special considerations not applicable to an individual."

     [266](1946) 72 CLR 269 at 290.

287. The Regulations that I have quoted do not in my opinion make provision for such fair and just standards of compensation.  There is no stated entitlement to interest[267].  They do not confer an immediate right to payment.  Payment depends, in the first instance at least, upon the outcome of an administrative process.  The fact that the process may be reviewable (and then only upon a very limited basis) by a Court of the Commonwealth[268] appointed pursuant to Chapter III of the Constitution can hardly be regarded as provision for fair and just standards of compensation for acquisition on just terms[269].

     [267]Bank Nationalisation Case (1948) 76 CLR 1 at 301 per Starke J; cf The Tasmanian Dam Case (1983) 158 CLR 1 at 291 per Deane J.

     [268]The Regulations provide a right to apply to the Administrative Appeals Tribunal for a review of decisions regarding compensation: r 57A(10). Appeal from decisions of the AAT to the Federal Court is available, but is limited to questions of law: Administrative Appeals Tribunal Act 1975 (Cth) s 44.

     [269]The defence power does not of course confer any greater right to acquire upon the Commonwealth on other than just terms than any other power:  See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 594 per Gummow J.

288. After all, until relatively recently substantial claims for compensation following acquisition by the Commonwealth, were routinely pursued in this Court[270].

     [270]See for example Albany v The Commonwealth (1976) 12 ALR 201. Section 62 of the Lands Acquisition Act 1955 (Cth) conferred jurisdiction upon the High Court and the courts of the States and Territories to deal with matters arising under the Act. Section 19 provided that land owners could, in the absence of agreement, take action against the Commonwealth in a court of competent jurisdiction, which included the High Court. Provision was made for removal of actions into the High Court where the amount claimed exceeded the jurisdiction of the lower courts (s 28(9)) and where proceedings had been instituted in the High Court and another court (s 28(10)). The Lands Acquisition Act was amended by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 (Cth). The amendments removed the relevant references to the High Court. Section 44 of the Judiciary Act, enacted in 1976, gave the High Court power to remit "any matter" to the Federal Court or to a Supreme Court. This replaced s 45. The change ensured the Court, of its own motion, could remit a matter.The original jurisdiction of the High Court in compensation matters, in consequence, has effectively ceased to be exercised.

289. In practice, actual loss or damage, and some of the effects of a Declaration, a defence practice or a defence operation, may not be ascertainable and calculable until they have long since occurred.  Unexploded and buried ordnance may constitute a special hazard, particularly to miners.  This alone is likely to raise very serious doubts in the mind of a prospective purchaser whether to purchase, and as to an appropriate purchase price.

290. Very large sums of money, rights of personal significance to the persons affected and distress at displacement are involved in many compensation cases.  So too, difficult questions, not only of law but also of fact regularly arise in such cases.  There will often be very marked differences between expert witnesses on factual matters and the final issue of fair value.  One very fruitful area of dispute in valuation cases is the identification of what is a discrete question of law or of fact, or, commonly, mixed law and fact.  In Melwood Units Pty Ltd v Commissioner of Main Roads [271], the Judicial Committee referred to errors in relation to principles of valuation interchangeably with errors of law.  All of this gives rise to special and difficult problems upon which the courts have not spoken with a unanimous voice as to what, in a particular valuation case, will constitute an appellable error of law[272].  The difficulties that have arisen in compensation cases are with respect well described by Kirby P in this passage[273]:

     "Because of the sparse economy and potential ambiguity of the phrase 'the value of the land', a vast body of common law 'principle' has been developed by courts to give meaning to the phrase as it applies to recurring fact situations following compulsory acquisition of the land.  About some of the 'principles' developed by the common law there may be debate.  Many of them appear to fresh minds to be ambiguous and contentious.  Others appear to be arbitrary categories of indeterminate reference, designed as much to obscure the judicial leaps to judgment that are required in these cases as to provide guidance about when, and how far, to leap[274]."

     [271][1979] AC 426 at 435, 437.

     [272]See the discussion and summary of the cases in Jacobs, The Law of Resumption and Compensation in Australia (1998) at pars 33.8 to 33.13.

     [273]Yates Property v Darling Harbour Authority (1991) 24 NSWLR 156 at 159.

     [274]cf Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 434.

291. These considerations highlight the undesirability of a determination of compensation other than by a proper judicial process including the availability of the usual, and not a restricted right of appeal or review.

292. Acquisition on just terms is synonymous, in my opinion, with acquisition according to justice and that means justice as administered by a court or tribunal fully and properly equipped to adjudicate upon all relevant matters and not subject to a truncated review or appellate process.  

293. In my opinion therefore, the State is entitled to explore for and win minerals on the alienated land.  The Declaration precludes mining on neither those lands nor on the unalienated land because it is invalid.  How in fact rights to explore and mine the alienated land are to be exercised does not fall for consideration in this case.  The Mining Act is not, as I have said the regime to regulate that exercise.  In the case of petroleum (save for the leased land in respect of which there is no such reservation) because of the express reference in the reservations to the Petroleum Act 1967 (WA), the State may act under that statute. As for the means to be adopted for the exploration for and exploitation of other minerals on the alienated land, I express no opinion.

294. Hayne J has pointed to some differences in language in the reservations.  These might suggest that for some purposes (perhaps quarrying) both the State and persons authorised by it may enter upon the alienated lands, whilst for mining purposes, this right of entry is confined to the State.  It is unnecessary to decide here whether a narrow construction of that reservation is required in light of the fact that at the time of the grants and to the knowledge of the parties, a State would rarely carry on a mining activity in its own right.  Nor is it necessary for this Court in these proceedings to determine whether the State would need a special statute or whether it has sovereign power otherwise to look for, and mine minerals other than petroleum on the land subject to the grants, or petroleum and other minerals on the leased land.

295. As for the unalienated land, in my opinion it is open for mining under the Mining Act, or otherwise as the State may determine and is lawful according to State law.

296. I would have asked the parties to agree upon the form of appropriate declarations and orders to reflect these reasons and granted liberty to apply.