Energy Resources of Australia Ltd v Chief Executive Officer of Customs [1998] FCA 109

FEDERAL COURT OF AUSTRALIA CUSTOMS AND EXCISE - Diesel fuel rebate - whether Jabiru a "mining town" - whether Jabiru "administered by" Jabiru Town Council - whether Jabiru Town Council "a council" - whether incorrect findings were errors of law. Administrative Appeals Tribunal Act 1975 (Cth) s 44 Customs Act 1901 (Cth) s 164(7) Jabiru Town Development Act 1979 (NT) ss 4(4), 5, 19A, 23, 24, 25D, 29A, 31 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, appl NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509, appl Re Reference under section 11 of the Ombudsman Act 1976 (1979) 2 ALD 86, appl Waterford v Commonwealth (1987) 163 CLR 54, appl ENERGY RESOURCES OF AUSTRALIA LTD v CHIEF EXECUTIVE OFFICER OF CUSTOMS NG 526 of 1997 DAVIES J 27 FEBRUARY 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 526 of 1997

BETWEEN: ENERGY RESOURCES OF AUSTRALIA LIMITED

Applicant

AND: CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

JUDGE: DAVIES J

DATE OF ORDER: 27 FEBRUARY 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 526 of 1997

BETWEEN: ENERGY RESOURCES OF AUSTRALIA LIMITED

Applicant

AND: CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

JUDGE: DAVIES J

DATE: 27 FEBRUARY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal rejected a challenge to a decision refusing to approve the payment of rebate on diesel fuel purchased by the applicant, Energy Resources of Australia Limited ("ERA"), for use in the generation of electricity for the township of Jabiru in the Northern Territory. The appeal raises only questions of law. The only issue debated before the Tribunal was whether Jabiru was a "mining town" as defined in s 164 of the Customs Act 1901 (Cth). The definition reads: "`mining town' means a town constructed by or on behalf of a person engaged in mining operations, in an area where immediately prior to its construction there was no town, principally to house employees of the person, but does not include a town administered by: (a) a council that is constituted under local government legislation of a State or Territory; or (b) an organisation taken to be a council under such legislation;" The issues before the Tribunal were whether the Jabiru Town council was "a council", whether it was "constituted under local government legislation" and whether Jabiru was "administered by" the Jabiru Town Council. The Tribunal answered those questions in the affirmative. In the present proceedings, it has been conceded that the Jabiru Town Council, which was formed in accordance with the Jabiru Town Development Act 1979 (NT) ("the JTD Act"), was "constituted under local government legislation". Counsel for ERA has contended that the Tribunal erred in law in its interpretation and application of the terms "administered by" and "a council". I do not propose to mention the facts in any great detail; however, an outline is essential. The township of Jabiru was established in 1979 for the purposes of the proposed Ranger Uranium Mine. Both the Township and the mine are situated within the Kakadu National Park. The JTD Act was passed to establish the Jabiru Town Development Authority, which was to control the town. The Authority comprised a Chairman and six other members, all of whom were appointed. In the early days, the Authority had a strong input from the Northern Territory Government. Over the years, the influence of the government representatives probably declined and the influence of ERA's representatives would have grown. The Authority was required by s 4(4) of the JTD Act to comply with any directions given to it by the Minister. Section 5 of the JTD Act conferred upon the Authority the following functions, inter alia: (a) to develop and maintain the town of Jabiru; (b) to give leases of land and premises and parts of premises in the town of Jabiru; (c) to administer, manage and control the town of Jabiru; (d) to carry out such local government functions as are conferred on it by or under this Act; ..." Section 23 provided that the Authority may declare a rate or charge on rateable land at Jabiru. Section 31 provided that the Authority may make by-laws to prescribe all things required or permitted to be prescribed or which were necessary or convenient in the performance of its functions. It was under the control of the Authority that the construction of the town proceeded. The Commonwealth was the owner of the relevant land. It granted a lease to the Authority. The Authority subleased land to others for residential and business purposes. By 1981, consideration had been given to achieving some form of participation by citizens residing in the town in the decision-making processes relating to the town. It was contemplated that there would be a staged development leading ultimately to a fully elected local government representation. The JTD Act was amended in 1982 to provide for a Jabiru Town Advisory Council, of which five members were to be elected and of which five members were to be appointed by the Minister. That Council when established advised the Authority on local government issues affecting Jabiru. The JTD Act was amended again in 1984 to establish the Jabiru Town Council. That Council consists of five members elected by persons residing in the district and three members appointed by the Minister. The functions of the Council are specified in s 25D which provides: "The function of the Council is to exercise a power or perform a function delegated to it by the Authority in so far as the power or function - (a) falls within the powers of the Authority under or by virtue of this Act; (b) is exercised or performed in or in relation to the area administered by the Authority; and (c) is or is in relation to a function specified in Schedule 2 of the Local Government Act." (emphasis added) Section 19A provides for a delegation by the Authority of its powers. The section provides, inter alia: "(1) Subject to sub-sections (4) and (5), the Authority may, by instrument in writing, delegate to a person any of its powers and functions under this Act, other than this power of delegation. ... (4) Where the person to whom the Authority has, under sub-section (1), delegated a power or function is the Council, the Council may delegate the power or function to - (a) one or more of the members of the Council; or (b) a person who is a member of the staff of the Council."