CATCHWORDS CUSTOMS AND EXCISE - excise duty - diesel fuel rebate - production of salt by use of evaporation - whether or not operations on wet and dry stockpiles of salt "mining operations" - meaning of "recovery" in the definition of the term "mining operations" as used in Excise Act 1901. STATUTORY INTERPRETATION - development of meaning of words - use of State Statutes in interpretation of a Federal Statute. Administrative Appeals Tribunal Act 1975 s 44 Customs Act 1901 s 164; sub-s 164(7) Customs and Excise Legislation Amendment Act 1905 sub-ss 2(1), (2), 5(4); Schedule 1 (Item 7) Dampier Solar Salt Industry Agreement Act 1967 (W.A.) Evaporites (Lake McLeod) Agreement Act 1967 (W.A.) Excise Act 1901 s 78A Jetties Act 1926 (W.A.) Land Act 1904 (W.A.) Mining Act 1978 (W.A.) Collector of Customs v. B.H.P. Australia Coal Ltd. (1994) 53 F.C.R. 499 Collector of Customs v. Cliffs Robe River Iron Associates (1985) 7 F.C.R. 271 Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. (1993) 43 F.C.R. 290 F.C.T. v. Henderson (1943) 68 C.L.R. 29 F.C.T. v. I.C.I. Australia Limited (1972) 127 C.L.R. 529 Parker v. Federal Commissioner of Taxation (1953) 90 C.L.R. 489 State Rail Authority (N.S.W.) v. Collector of Customs (1991) 33 F.C.R. 211 DAMPIER SALT (OPERATIONS) PTY. LTD. V. COLLECTOR OF CUSTOMS WAG111 OF 1994 LEE J. PERTH 16 NOVEMBER 1995 IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG111 OF 1994 ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL B E T W E E N: DAMPIER SALT (OPERATIONS) PTY. LTD. Applicant and COLLECTOR OF CUSTOMS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: LEE J. DATE OF ORDER: 16 NOVEMBER 1995 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Tribunal be set aside. 2. The matter be remitted to the Tribunal for re-determination according to law. 3. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG111 OF 1994 ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL B E T W E E N: DAMPIER SALT (OPERATIONS) PTY. LTD. Applicant and COLLECTOR OF CUSTOMS Respondent CORAM: LEE J. DATE : 16 NOVEMBER 1995 PLACE: PERTH REASONS FOR JUDGMENT This is an "appeal" on a question of law pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Collector") made on 17 June 1992 rejecting a claim by the applicant ("Dampier Salt") under s.78A of the Excise Act 1901 for the payment of a rebate of the duty paid on diesel fuel purchased by Dampier Salt for use in the salt production operations conducted by it at Dampier and at Lake McLeod in Western Australia. The question of law on which the appeal turns is the meaning of the phrase "mining operations" as used in s.78A of the Excise Act. In the hearing before the Tribunal the parties submitted a statement of agreed facts and the Tribunal made findings of fact accordingly. The following is a summary of the facts accepted by the Tribunal. Dampier Salt produces salt at two locations in the north-west of Western Australia. The first site is on the coast at Dampier and the second is north of Carnarvon at Lake McLeod, about 15kms inland from the coast. The operation conducted at Dampier is in performance of obligations undertaken in an agreement made between the State of Western Australia and Dampier Salt Limited. The relationship between Dampier Salt and Dampier Salt Limited is not explained in the facts presented to the Tribunal. The agreement was approved and ratified by the Dampier Solar Salt Industry Agreement Act 1967 (W.A.) ("the Agreement Act"). Pursuant to the agreement Dampier Salt Limited was granted a long-term lease of the land ("the production site") on which the solar salt plant has been constructed. Under the agreement a lease under the Land Act 1904 (W.A.) and a licence under the Jetties Act 1926 (W.A.) were granted for the stockpile of salt produced from the production site and for the construction of ship loading facilities. All leased areas are contiguous and all vehicle movements in respect of the production, stockpiling and loading of salt are made on private roads within the boundaries of the leases. In the Dampier project sea water from the Indian Ocean is pumped into an intake pond. Over a period of months the sea water is transferred between concentrating ponds until it is reduced to about 11 percent of its original volume by solar evaporation. The resulting saturated brine is pumped into crystallizing ponds ("the crystallizers") where further evaporation causes salt crystals to be deposited on a pre-formed salt pavement. Each crystallizer is harvested once a year. The harvested salt is hauled by road trains to a stockpile on the production site ("the wet stockpile"). The harvested salt is dumped in hoppers and fed into a washing plant to remove impurities. After washing the salt is removed by conveyor to the wet stockpile where it drains for about three months. The salt delivered to the wet stockpile is sampled every twenty minutes and the samples analysed hourly to obtain a profile of the product being delivered to the stockpile and the level of impurities remaining. The stockpile is divided into segments according to the analysed quality of the product. The brine evaporation process at Lake McLeod is conducted by Dampier Salt as assignee of the rights and obligations of Texada Mines Pty. Ltd. ("Texada") under an agreement made between the State of Western Australia and Texada. The agreement was approved and ratified by the Evaporites (Lake McLeod) Agreement Act 1967 (W.A.) ("the Agreement Act"). Pursuant to the agreement a mineral lease has been granted to the operator of the solar salt plant. The lease includes the area of Lake McLeod and adjoining land giving access to the port of Cape Cuvier where stockpiles and ship loading facilities are situated. The saturated salt solution for the Lake McLeod operation is obtained from a brine aquifer situated beneath the layer of gypsum that forms the lake surface. Lake McLeod is a large coastal lake in excess of 2,000 sq km in area. The brine is collected in a ditch cut into and through the gypsum and is transported by channel and by pump directly to the crystallizers, a distance of approximately 8kms. As with the Dampier operation the salt harvested from the crystallizers is put through a washing procedure and conveyed to a wet stockpile. After approximately three months on the wet stockpile it is conveyed by road trains to the dry stockpile near the port facilities at Cape Cuvier. The principal issue raised by the question of law on this appeal is whether the operations conducted on the wet and dry stockpiles come within the meaning of "mining operations" under s.78A of the Excise Act. It is appropriate to set out in full the facts as found by the Tribunal in respect of those operations: "10. By the time the product is harvested from the crystallisers it is common salt (that is, sodium chloride) but the chemical properties of the salt in each crystalliser vary because the various impurities concentrate out at different stages of the crystallisation process. For instance, the first stage crystalliser will have more calcium and the second and third stage crystallisers will have more magnesium. Also, in each crystalliser fine salt crystals, which have a higher calcium content, tend to accumulate around the edges. The way the product is handled after washing is designed (in part) to evenly distribute the different batches from the different crystallisers to ensure a homogeneous product. As the product is spread out layer upon layer on the wet stockpile, a continuous analysis of the chemical quality of the product is made and recorded by a computer so that a profile of the pile exists. This is then used to guide a bulldozer and a loader which work the pile so as to break up the crust which forms on the surface and blend the salt as required, in order to achieve a more homogeneous product. Computerised knowledge of the wet stockpile analysis is also used to guide the loader in selecting which part of the pile to load onto the road trains which eventually transport the product some 15 kilometres at Dampier, and 23 kilometres at Lake McLeod, to a dry stockpile at the wharf. Salt may remain on the wet stockpile for two to three months, being occasionally worked over in this way. Throughout that time a process of draining and evaporation also occurs, which removes impurities and alters the calcium/magnesium balance; bringing more and more of the salt within the 'contract specification' and the 'typical specifications'. 11. The contract specification and typical specifications are two important salt qualtiy measures which customers of the applicant consider when entering into salt purchase contracts. The contract specification specifies the maximum limits of specific impurity content which the customer will commercially and operationally accept. The typical specifications are the 'typical' sodium chloride, impurity and moisture content ranges of the salt produced by the applicant and are used as a marketing tool to differentiate the applicant's salt from that of other suppliers. The typical specifications describe salt of a higher grade than the acceptable minimum standard described in the contract specifications. 12. The operations at the wet stockpile at both locations have the following purposes: a) spreading the salt laterally for blending purposes; b) caving-in the pile to promote vertical blending of the layers of salt; c) breaking up the crust to promote evaporation; d) loading the salt onto road trains for transportation to the port facility; e) reducing the water content; and f) reducing the level of impurities. 13. As part of a continuing process a front end loader loads road trains with salt taken from different parts of the wet stockpile. This is then driven to the port site where it is dumped through grizzly bars onto a conveyor belt which elevates it onto the dry stockpile. As it is passing up the elevator to the dry stockpile, samples are taken which are subjected to analysis which then forms the basis for a computer record. As the samples are processed and the results fed into the computer, a print-out indicates whether the product being elevated onto the dry stockpile is within the typical specifications. If the product is not within the typical specifications this fact is relayed to the person in charge of loading at the wet stockpile and the loadng operation for the next day is varied so that a blend closer to or within the typical specifications is obtained and loaded onto the road trains and eventually fed onto the dry stockpile. 14. As the salt falls from the elevator onto the (smaller) dry stockpile a bulldozer working on top of the pile pushes the salt from under the elevator to the edges of the pile to make room for more salt to be dropped onto the pile as well as to further blend the salt. When a ship is loading, the bulldozer pushes the salt through grizzly bars onto a conveyor belt which carries the salt beneath an electric magnet to remove any remaining tramp metal which may be present and then on to the wharf from which it is loaded onto the ship. Final chemical and moisture analysis is also made at this point to check whether the salt is within contract and typical specifications." Dampier Salt has received a rebate on diesel fuel used in all operations up to and including the loading of salt from the wet stockpile onto road-trains for transport to the dry stockpile. Dampier Salt contends that transport of the salt to the dry stockpile and operations on the dry stockpile are part of the mining operation conducted by Dampier Salt to which s.78A of the Excise Act applies. The relevant parts of s.78A of the Excise Act read as follows: "78A.(1) A rebate is, subject to subsections (2) and (3) and to such conditions and restrictions as are prescribed (being conditions and restrictions that relate to goods generally, to goods included in a class of goods that includes diesel fuel or to diesel fuel only), payable to a person who purchases diesel fuel for use by him: (a) in mining operations (otherwise than for the purpose of propelling a road vehicle on a public road); ... (7) In this section, 'mining operations', 'primary production', 'residential premises', 'road vehicle' and 'use' have the same respective meanings as in section 164 of the Customs Act 1901." The definition of "mining operations" in s.164 of the Customs Act 1901 read as follows at the time of the hearing of the appeal: "164.(7) ... '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 mining occurs; (ca) other operations connected with the dressing or beneficiation of minerals, or ores bearing minerals, where that dressing or beneficiation is an integral part of the operation for the recovery of the minerals or of the ores, being operations that are carried out in, or at a place adjacent to, the area in which the dressing or beneficiation occurs; (d) where minerals, or ores bearing minerals, are dressed or beneficiated, at a place other than the mining site, as an integral part of operations for their recovery - the transporting of the minerals or ores from the mining site to the place where they are dressed or beneficiated; (da) the undertaking: (i) of voyages to or from an Australian port by a ship that is proposed to be, or that is, used wholly or primarily in carrying out northern mining activities within the meaning of this section for the purposes of refitting or repairing the ship or its equipment for, or as a result of, carrying out those activities; or (ii) of trials in connection with such a refit or repair of the ship or its equipment; (e) the liquefying of natural gas; (f) where natural gas is liquefied at a place other than the mining site - the transporting of the natural gas from the mining site to that place; or (g) the production of common salt by means of evaporation; but does not include quarrying operations carried on for the sole purpose of obtaining stone for building, road making or similar purposes;" On 1 July 1995 the Customs and Excise Legislation Amendment Act 1995 ("the Amending Act") came into force upon receipt of the Royal Assent. From that date the amendment by Item 7 of Schedule 1 of the Amending Act of the definition of "mining operations" contained in s.164 of the Customs Act, and adopted by the Excise Act, is to be taken to have commenced on 1 August 1986. By those amendments paras.(c) and (ca) of the definition of "mining operations" were deleted. Items 8 and 9 of Schedule 1 of the Amending Act further amended the definition "mining operations" from 1 July 1995. Sub-section 5(4) of the Amending Act states that for the purpose of proceedings in relation to a rebate application commenced in this Court before 1 July 1995 and not determined before that date, the law governing the right to be paid such a rebate is the law as in force after the commencement of the Amending Act. The definition of "mining operations" in force after 1 July 1995 is as follows: "'mining operations' means: (a) exploration, prospecting the removal of overburden and other activities undertaken in the preparation of a site to enable mining to commence or mining for minerals; or (b) the dressing or beneficiation of minerals, or ores bearing minerals, as an integral part of operations for their recovery; and includes: (c) if minerals, or ores bearing minerals, are dressed or beneficiated at a place other than the mining site as an integral part of operations for their recovery: (i) the transporting of the minerals or ores from the mining site to that place; and (ii) the return journey from that place to the mining site of the vehicles or equipment used in transporting the minerals or ores, if that journey is for the purpose of later carrying out the mining operation referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or (d) the undertaking: (i) of voyages to or from an Australian port by a ship that is proposed to be, or that is, used wholly or primarily in carrying out northern mining activities for the purposes of refitting or repairing the ship or its equipment for, or as a result of, carrying out those activities; or (ii) of trails in connection with such a refit or repair of the ship or its equipment; or (e) the liquefying of natural gas; or (f) if natural gas is liquefied at a place other than the mining site - the transporting of the natural gas from the mining site to that place; or (g) the production of common salt by evaporation; or (h) the reactivation of carbon for use in the beneficiation of ores bearing gold; or (i) coal stockpile management for the prevention of the spontaneous combustion of coal if the management is carried out: (i) by a person who carries on a mining operation referred to in paragraph (a) or (b); or (ii) by a person contracted by that person to carry out the management; at the place where the mining operation is carried on; or (j) the generation of electricity solely for, or the provision of electricity solely to, a mining town if: (i) the existence of the town is necessary to enable a mining operation referred to in paragraph (a) or (b) to be undertaken; and (ii) the generation or provision is carried out by the person who carries on the mining operation; or (k) the rehabilitation at places affected by a mining operation referred to in paragraph (a) or (b) has been carried on if the rehabilitation is carried out by: (i) the person who carried on the mining operation at the place; or (ii) a person contracted by that person to carry out the rehabilitation; or (l) searching for ground water solely for use in a mining operation referred to in paragraph (a) or (b), or the construction or maintenance of facilities for the extraction of such water, solely for that use, if the searching, construction or maintenance: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the searching, construction or maintenance; or (m) the pumping of water solely for use in a mining operation referred to in paragraph (a) or (b) if the pumping: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the pumping; or (n) the supply of water solely for use in a mining operation referred to in paragraph (a) or (b) if: (i)the supply is to the place where the mining operation is carried on; and (ii)the water comes from that place or a place adjacent to that place; and (iii)the supply is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the supply; or (o) the construction or maintenance of private access roads for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (p) the construction or maintenance of storage dams or tailings dams for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (q) the construction or maintenance of private airstrips, buildings, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (r) the construction or maintenance of power stations or power lines solely for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (s) the removal of waste products of a mining operation referred to in paragraph (a) or (b) from the place where the mining operation is carried on; or (t) the disposal of waste products of a mining operation referred to in paragraph (a) or (b) at the place where the mining operation is carried on; or (u) the service, maintenance or repair of vehicles, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the service, maintenance or repair: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the service, maintenance or repair; or (v) the service, maintenance or repair of transport networks, vehicles or equipment solely for use in a mining operation referred to in paragraph (c) if the service, maintenance or repair is carried out by: (i) the person who carries on the mining operation; or (ii) a person contracted by that person to carry out the service, maintenance or repair; but does not include quarrying operations carried on solely for the purpose of obtaining stone for building, road making or similar purposes; or (w) the use of diesel fuel at residential premises in: (i) providing food and drink for; or (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of; residents of the premises if: (iv) the use is by a person who carries on a mining operation referred to in paragraph (a) or (b); and (v) the residential premises are situated at the place where the mining operation is carried on, or at a place adjacent to that place." The object of s.78A of the Excise Act is to reduce the cost of diesel fuel purchased for use in mining operations. As defined by the Excise Act a mining operation includes the activity of exploring for minerals as well as the mining of minerals for production and sale. It is accepted that the purpose of s.78A is to provide financial assistance that may encourage persons to undertake mining operations. The provisions of the Excise Act amount to a statement by Parliament that the public interest will be served by providing assistance from the public revenue to persons engaged in activities that produce, or may lead to the production of, minerals the sale and export of which would produce income from foreign sources. In follows from the foregoing that the construction intended by Parliament to be applied to the phrase "mining operations" will be one that is cognizant of, and gives effect to, such a beneficial purpose. That is not to say that Parliament has applied a special meaning to the words used, or adopted a technical or commercial meaning which differs from the ordinary meaning of the words. What it does mean is that it would not be consonant with the intention of Parliament to apply a narrow meaning to the words if a broader meaning may be applied without straining the ordinary use of the words. (See: F.C.T. v. I.C.I. Australia Limited (1972) 127 C.L.R. 529 per Gibbs J. at 581; Collector of Customs v. Cliffs Robe River Iron Associates (1985) 7 F.C.R. 271 at 274-275; Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. (1993) 43 F.C.R. 280 at 290.) Pursuant to the definition of "mining operations" now inserted in sub-s.164(7), "mining operations" means, inter alia, the mining for minerals or the beneficiation of minerals as an integral part of operations for the recovery of minerals and that meaning extends to the production of common salt by evaporation. The broad nature of the activities listed as being included within the definition of "mining operations" shows that the meaning of "mining for minerals and the beneficiation of minerals as an integral part of operations for their recovery" is expansive. For example, the meaning of "mining operations" includes the reactivation of carbon for use in the beneficiation of ores bearing gold; the management of coal stockpile for the prevention of spontaneous combustion of coal; the generation of electricity for use in a mining town; the rehabilitation of a place where a mining operation has been carried out; the supply of water for use in a mining operation; and the removal or disposal of waste products of a mining operation. At an earlier time the primary meaning of the words "mine" and "mining" may have been limited to subterranean excavation for the purpose of getting minerals. However, further development of the meaning of the words, by acceptance of statutory definitions or by the use of new techniques and technologies to extract and produce minerals from a natural resource, has the consequence that whenever used in modern parlance and in statutes it has a meaning broader than the original primary sense. Regard should also be given to the Mining Act 1978 (W.A.) which, together with the relevant Agreement Acts, controls the operations conducted at Dampier and Lake McLeod. As Latham C.J. said in Federal Commissioner of Taxation v. Henderson (1943) 68 C.L.R. 29 at 44: "Definitions enacted for the purpose of a State statute cannot control the interpretation of a Federal statute, but these definitions show that it would not be inconsistent with the use of those terms in State legislation to hold that the sluicing and treatment of tailings were mining operations." And as Gibbs J. said in F.C.T. v. I.C.I Australia Limited (at p.581) an operation treated as a mining operation by State legislation that applies to the case is relevant in considering whether it is also a mining operation within the meaning of a Commonwealth Act which so applies. The Mining Act (W.A.) defines "mining operations" in the following terms: "'mining operations' means any mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes - (a) the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral; (b) operations by means of which salt or other evaporites may be harvested; (c) operations by means of which mineral is recovered from the sea or a natural water supply; and (d) the doing of all lawful acts incident or conducive to any such operation or purposes;" It is clear that it would not be inconsistent with the definition of "mining operations" in the Mining Act (W.A.) to hold that both the Dampier and Lake McLeod operations are within that definition. Mining ventures in Australia commonly involve operations of vast scale which, to secure the commitment of sufficient capital to develop the resource in the manner required by a State, are the subject of detailed agreements between the mining venturers and the State, ratified by special State legislation under which the State supplies access to the resource, security of tenure and concessions and the mining venturers commit themselves to an integrated operation likely to be more extensive than the historical concept of a mining operation. The Dampier and Lake McLeod projects fall into that class. Whether the current ordinary meaning of "mining operations" includes an evaporative extraction process using water obtained from the sea or a lake (see: Federal Commissioner of Taxation v. I.C.I. Australia Limited (1972) 127 C.L.R. 529 per Walsh J. at 544, Barwick C.J. at 565, Gibbs J. at 579-581) is unnecessary to determine. In its terms the definition of "mining operations" in sub-s.164(7) of the Customs Act includes any process by which common salt is produced by the use of evaporation and there is no reason to consider that the process contemplated by that definition is less extensive than the process included in the definition of "mining operations" contained in the Mining Act (W.A.) As Dixon C.J. said in Parker v. Federal Commissioner of Taxation (1953) 90 C.L.R. 489 at 494: "Mining operations means operations pertaining to mining and operations is a very large expression." and further "...draftsmen frame definitions for their own convenience without regard either to the natural or the possible meanings of the words defined." Mining operations for the production of common salt by evaporation to which the Excise Act applies include not only the production of common salt by use of evaporation but also operations pertaining to that process of production. It includes operations directed to the beneficiation of the compound produced by evaporation until the point is reached where the mineral sought to be recovered has been recovered. As was stated in State Rail Authority (N.S.W.) v. Collector of Customs (1991) 33 F.C.R. 211 at 215 recovery of the mineral is the central theme and the key element of the definition of "mining operations" in para.(b). Therefore, diesel fuel purchased for use in any part of an operation undertaken to recover a mineral as a saleable product will attract a rebate under the Excise Act. Until that point is reached in the process of recovery it cannot be said that the mining operator has recovered the mineral the object of the mining operation. The evidence before the Tribunal established that the operation Dampier Salt was required to undertake was not the production of common salt of low quality for which there was little or no demand. Under the Agreements Acts Dampier Salt was committed to conducting a mining operation by evaporation capable of producing a substantial volume of common salt of sufficient quality to meet the demands of export markets. Until it recovered such a product it had not completed the mining operation it had undertaken to carry out under the Agreement Acts. The evidence presented to and accepted by the Tribunal shows that up to the point where the salt product is loaded on vessels for export there is an integrated set of steps required to be carried out before the marketable product for export becomes available to be loaded. That product finally becomes available by careful manipulation of the dry stockpile. All steps up to that point are progressive and an integral part of the mining operation the object of which is to recover the product to meet the requirements of the purchasers under the export contracts. The Tribunal found that the deposit of common salt on a wet stockpile was the production or recovery of a mineral for the purpose of the definition of "mining operation" under s.78A of the Excise Act and determined, therefore, that a rebate on the purchase cost of diesel fuel was not available for fuel used by Dampier Salt in activities undertaken after that point. However, the delivery of common salt of variable quality to the wet stockpile is not the point at which the recovery of the mineral under the mining operation conducted by Dampier Salt is effected. The Tribunal accepted that work carried out on the wet stockpile amounted to beneficiation of the mineral sought to be recovered but went on to say that it was not an integral part of the recovery operations. It appeared to accept that the work on the dry stockpile was also part of the beneficiation of the mineral but regarded those activities, and the transport of the salt from the wet to the dry stockpile, as "marketing operations" and not "an integral part of operations for the recovery of the minerals". Those conclusions resulted from a misunderstanding of the meaning of the word "recovery" in the term "mining operations", namely, the production of a mineral as a marketable product achieved by the mining operation. The mining operation conducted by Dampier Salt was to recover common salt of a standard suitable for export in quantities that made the operation viable. The totality of that operation in all its integrated steps was a mining operation within the meaning of that term as used in the Excise Act. (See: Collector of Customs v. B.H.P. Australia Coal Ltd. (1994) 53 F.C.R. 499.) For the reasons set out above the meaning of "mining operation" applied by the Tribunal was too narrow to meet the liberal intent of the Excise Act and in applying that restricted meaning the Tribunal erred in law. At that point the law as in force after 1 July 1995 falls to be applied. As set out above, the facts as found by the Tribunal fall within the primary meaning of the term "mining operation" before and after 1 July 1995 and the deletion of paras.(c) and (ca) of the definition have no effect upon that conclusion. It may also be noted that the definition of "mining operations" inserted by the Amending Act has a meaning of sufficient breadth to include operations that relate to ancillary elements in the conduct of substantial mining operations including the provision of infrastructure, renovation of plant and rehabilitation of mined areas. It is a provision that has been inserted in the Excise Act with knowledge of the scope of mining operations as defined by State legislation. The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for redetermination in accordance with these reasons. I certify that the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date: APPEARANCES Counsel for the Applicant: D.H. Bloom Q.C. A. Sweidan Solicitors for the Applicant: Andre Sweidan Counsel for the Respondent: M.J. Buss Q.C. C.A. Wyatt Solicitors for the Respondent: Australian Government Solicitor Date of Hearing : 19 April 1995 Date of Judgment : 16 November 1995