LIMITED DISTRIBUTION CATCHWORDS Meaning of "mining for minerals" in the definition of "mining operations" in s.164(7) of the Customs Act 1901 - Effect of the addition to the definition: "but does not include quarrying operations ..." ~ Sand dredging for building materials not "mining for minerals" and not within "mining operations". Excise Act 1901, s.78A Customs Act 1901, s.164 NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS -V- COLLECTOR OF CUSTOMS (QUEENSLAND QLD G.147 of 1986 Northrop, Spender & Burchett JJ. Brisbane 7 April 1987 i unek GUN OF "hu STRALIA ~ ony 2k aie IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G.147 of 1986 wee ww GENERAL DIVISION BETWEEN: NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS Appellant AND: COLLECTOR OF CUSTOMS (QUEENSLAND) Respondent MINUTE OF ORDER OF THE COURT Judges Making Order: Northrop, Spender and Burchett JJ. Where Order Made: Brisbane Date of Order: 7 April 1987 THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders is dealt with 1n Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G.147 of 1986 GENERAL DIVISION BETWEEN: NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS Appellant AND: COLLECTOR OF CUSTOMS (QUEENSLAND) ~ Respondent EX-TEMPORE REASONS FOR JUDGMENT NORTHROP J. I would ask Mr. Justice Burchett to express his opinion, please? BURCHETT J. This is an appeal from the Administrative Appeals Tribunal, in which the question of law raised concerns the true construction of the definition of "mining operations" in s.164 of the Customs Act 1901 as applied in s.78A of the Excise Act 1901, which provides in certain circumstances for a rebate in respect of diesel fuel purchased for use in (inter alia) mining operations. The appellant's activities, out of which its application to the Administrative Appeals Tribunal arose, involved dredging sand, together with other marine materials, and 2. pumping it ashore, where material not usable was separated out and the usable material was stockpiled for later building activities of the nature of land reclamation and retaining wall construction. These activities were summarised by the Tribunal as follows: "The operations' of the applicant were designed to provide to its co-contractors relatively clean overburden (which coincidentally contained mineral matter) for uses such as are recorded earlier. The applicant was not mining for minerals, the Tribunal finds, but dredging for 'homogeneous fill' (an expression used by Mr. Barr in his evidence). That this homogeneous fill may well have contained minerals, is beside the point in our view." The material parts of the definition of "mining operations" in s.164(7) are: "'mining operations' means - (a) exploration, prospecting or mining for minerals; or (b) the dressing or beneficiation (at the mining site or elsewhere) of minerals, or ores bearing minerals, as an integral part of operations for their recovery, and includes - (c) other operations connected with exploration, prospecting or mining for minerals that are carried out in, or at a place adjacent to, the area in which the exploration, prospecting or maining occurs; eee but does not include quarrying operations carried on for the sole purpose of obtaining stone for building, road making or similar purposes;". 3. "Minerals" are defined in the same sub-section to mean "minerals in any form, whether solid, liquid or gaseous, and whether organic or inorganic." What the appellant contends is that the statement, at the end of the "definition" of "mining operations", that certain quarrying operations are not included, implies a_ radically different understanding of "mining for minerals", where that expression is used in paragraph (a), from that which high authority would normally require. It is said the difference 1s such as to enable it to be held that the activities of the appellant were mining operations within the provision. It is, of course, undoubted that both "mining" and "minerals" are words of imprecise and potentially wide meaning, which must be understood according to the context in which they are used. But, in construing s.164, one cannot overlook the High Court's decisions on the similar usage of the expression "mining operations" in N.S.W. Associated Blue-Metal Quarries Limited vv. Federal Commissioner of Taxation (1956) 94 C.L.R. 509, and North Australian Cement Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1969) 119 C.L.R. 353. The word "minerals", as Dixon C.J. and Williams and Taylor JJ. pointed out in the appeal in the former of those cases, at p.522, is perhaps as difficult as the word "mining"; and the difficulty is emphasised if one looks at the definition given in the Shorter Oxford English Dictionary, which gives the first meaning as: "Any substance which 1s obtained by mining." A settled view would exclude activities, such as quarrying for blue 4. metal, which are unrelated to an ordinary understanding of "mining" as the word is used in Australia today. Likewise, in my opinion, the settled meaning of the expression "mining operations," and in particular of the expression "mining for minerals," would exclude the activities of the appellant. It would require a strong context to lead the Court to jettison the High Court learning, supported as it is by a wealth of earlier authority, even though the High Court decisions are, of course, not directly binding for the purposes of the construction of the section here in question. But the argument from the non-inclusory portion of the definition is in fact quite exiguous. In Corporate Affairs Commission (SA) v. Australian Central Credit Union (1985) 61 A.L.R. 236, a similar argument, applied to a statutory provision to which it could perhaps have been more readily applied than the argument presented here in relation to s.164, was rejected by the High Court. At p.242, in the joint judgment of Mason ACJ, Wilson, Deane and Dawson JJ., 1t was said: "It should be mentioned that it was also submitted, on behalf of the Commission and the Registrar, that the content of the specific exclusions from the general provisions of s 5(4) of the Code [this was a case concerned with the provisions of the Companies (South Australia) Code] supported a conclusion that the proposed offer in the present case would constitute an offer to a section of the public for the purposes of the sub-section. As King CJ pointed out in the Pull Court of the Supreme Court however, undue attention by courts to implications based on such exceptions is liable to lead to constructions which distort the true meaning of the relevant general substantive provisions." 5. In s.164, the words of non-inclusion are added to avoid any suggestion that the quarrying referred to 1s included: but there was a real risk that it might otherwise have been included by virtue of paragraph (c) of the so-called definition. That 1s a sufficient explanation of the presence of those additional words. There is, of course, no suggestion that paragraph (c) has any application in the present case. I may add that, in my opinion, on no view of the definition was it open to hold that the dredging operations in question in this case constituted mining for minerals. They were not to win anything having a characteristic of a kind which ordinary understanding would describe as mineral, but to win building materials for the uses outlined at the beginning of these reasons. In my opinion the appeal should be dismissed with costs. NORTHROP J. I will ask Mr. Justice Spender to express his opinion. SPENDER J. I agree. NORTHROP J. I also agree with the reasons given and, accordingly, the order of the Court is that the appeal be dismissed with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court. a Pa AS? Le Associate ! Dated: 7 April, 1987. Counsel for the Appellant: G. Davies Q.C. with J. Rivitt Solicitors for the Appellant: Cleary & Hoare Counsel for the Respondent: P. Dutney with J. Pyne Solicitors for the Respondent: Australian Government Solicitor Date of hearing: 7 April 1987. LIMIicv DIS1RIBULION CATCHWORDS Meaning of "mining for minerals" in the definition of "mining operations" in s.164(7) of the Customs Act 1901 - Effect of the addition to the definition: "but does not include quarrying operations ..." - Sand dredging for building materials not "mining for minerals" and not within "mining operations". Excise Act 1901, s.78A Customs Act 1901, s.164 NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS -V- COLLECTOR OF CUSTOMS (QUEENSLAND) QLD G.147 of 1986 Northrop, Spender & Burchett JJ. Brisbane 7 April 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No. G.147 of 1986 ) ) GENERAL DIVISION BETWEEN: NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS Appellant COLLECTOR OF CUSTOMS (QUEENSLAND) Respondent MINUTE OF ORDER OF THE COURT Judges Making Order: Northrop, Spender and Burchett JJ. Where Order Made: Brisbane Date of Order: 7 April 1987 THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G.147 of 1986 were vw GENERAL DIVISION BETWEEN: NEUMANN DREDGING CO. LTD. trading as NEUMANN CONTRACTORS Appellant AND: COLLECTOR OF CUSTOMS (QUEENSLAND) Respondent EX-TEMPORE REASONS FOR JUDGMENT NORTHROP J. I would ask Mr. Justice Burchett to express his opinion, please? BURCHETT J. This is an appeal from the Administrative Appeals Tribunal, in which the question of law raised concerns the true construction of the definition of "mining operations" in s.164 of the Customs Act 1901 as applied in s.78A of the Excise Act 1901, which provides in certain circumstances for a rebate in respect of diesel fuel purchased for use in (inter alia) mining operations. The appellant's activities, out of which its application to the Administrative Appeals Tribunal arose, involved dredging sand, together with other marine materials, and 2. pumping it ashore, where material not usable was separated out and the usable material was stockpiled for later building activities of the nature of land reclamation and retaining wall construction. These activities were summarised by the Tribunal as follows: "The operations of the applicant were designec to provide to its co-contractors relatively clean overburden (which coincidentally contained mineral matter) for uses such as are recorded earlier. The applicant was not mining for minerals, the Tribunal finds, but dredging for 'homogeneous fill' (an expression used by Mr. Barr in his evidence). That this homogeneous f111 may well have contained minerals, is beside the point in our view." The material parts of the definition of "mining operations" in s.164(7) are: ""'maning operations' means - (a) exploration, prospecting or mining for minerals; or (b) the dressing or beneficiation (at the mining site or elsewhere) of minerals, or ores bearing minerals, as an integral part of operations for their recovery, and includes ~ {c) other operations connected with exploration, prospecting or mining for minerals that are carried out in, or at a place adjacent to, the area in which the exploration, prospecting or mining occurs; but does not include quarrying operations carried on for the sole purpose of obtaining stone for building, road making or similar Purposes;". 3. "Minerals" are defined in the same sub-section to mean "minerals in any form, whether solid, liquid or gaseous, and whether organic or inorganic." What the appellant contends is that the statement, at the end of the "definition" of "mining operations", that certain quarrying operations are not included, implies a _ radically different understanding of "mining for minerals", where that expression 1s used in paragraph (a), from that which high authority would normally require. It is said the difference is such as to enable it to be held that the activities of the appellant were mining operations within the provision. It is, of course, undoubted that both "mining" and "minerals" are words of imprecise and potentially wide meaning, which must be understood according to the context in which they are used. But, in construing s.164, one cannot overlook the High Court's decisions on the similar usage of the expression "mining operations" in N.S.W. Associated Blue-Metal Quarries Limited v. Federal Commissioner of Taxation (1956) 94 C.L.R. 509, and North Australian Cement Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1969) 119 C.L.R. 353. The word "minerals", as Dixon C.J. and Williams and Taylor JJ. pointed out in the appeal in the former of those cases, at p.522, is perhaps as difficult as the word "mining"; and the difficulty is emphasised if one looks at the definition given in the Shorter Oxford English Dictionary, which gives the first meaning as: "Any substance which 1S obtained by mining." A settled view would exclude activities, such as quarrying for blue 4. metal, which are unrelated to an ordinary understanding of "mining" as the word 1s used in Australia today. Likewise, in my opinion, the settled meaning of the expression "mining operations," and in particular of the expression "mining for minerals," would exclude the activities of the appellant. It would require a strong context to lead the Court to jettison the High Court learning, Supported as it is by a wealth of earlier authority, even though the High Court decisions are, of course, not directly binding for the purposes of the construction of the section here in question. But the argument from the non-inclusory portion of the definition 1s in fact quite exiguous. In Corporate Affairs Commission (SA) v. Australian Central Credit Union (1985) 61 A.L.R. 236, a similar argument, applied to a statutory provision to which it could perhaps have been more readily applied than the argument presented here in relation to s.164, was rejected by the High Court. At p.242, in the joint judgment of Mason ACJ, Wilson, Deane and Dawson JJ., it was said: "It should be mentioned that it was also submitted, on behalf of the Commission and the Registrar, that the content of the specific exclusions from the general provisions of s 5(4) of the Code [this was a case concerned with the provisions of the Companies (South Australia) Code] supported a conclusion that the proposed offer in the present case would constitute an offer to a section of the public for the purposes of the sub-section. As King CJ pointed out in the Full Court of the Supreme Court however, undue attention by courts to implications based on such exceptions is liable to lead to constructions which distort the true meaning of the relevant general substantive provisions." 5. In s.164, the words of non-inclusion are added to avoid any suggestion that the quarrying referred to is included: but there was a real risk that it might otherwise have been included by virtue of paragraph (c) of the so-called definition. That is a sufficient explanation of the presence of those additional words. There is, of course, no suggestion that paragraph (c) has any application in the present case. I may add that, in my opinion, on no view of the definition was it open to hold that the dredging operations in question in this case constituted mining for minerals. They were not to win anything having a characteristic of a kind which ordinary understanding would describe as mineral, but to win building materials for the uses outlined at the beginning of these reasons. In my opinion the appeal should be dismissed with costs. NORTHROP J. I will ask Mr. Justice Spender to express his opinion. SPENDER J. I agree. NORTHROP J. I also agree with the reasons given and, accordingly, the order of the Court is that the appeal be dismissed with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court. 2: - Z 4 A Tt EAN: Associate ? Dated: 7 April, 1987. Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Date of hearing: G. Davies Q.C. with J. Rivitt Cleary & Hoare P. Dutney with J. Pyne Australian Government Solicitor 7 April 1987.