Manner and form mysteries highlighted but unresolved in Mineralogy v WA

This is the first of two posts AUSPUBLAW is featuring on the High Court’s Decision in Mineralogy v WA. Jonathan Bonnitcha’s accompanying post is here.

Anne Twomey

01.12.2021

One of the difficulties in understanding and applying manner and form constraints on state legislative power is that there is little jurisprudence on the subject and what exists is often unclear, poorly reasoned and in some cases just wrong. That is why the manner and form arguments in Mineralogy Pty Ltd v State of Western Australia [2021] HCA 30 will be closely scrutinised, even though the case was not a good vehicle for such arguments and the judgments did not make any great advances in the development or explication of manner and form. 

The joint judgment of Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ, did not address most of the manner and form arguments made, finding that the easiest way home was to reject them on a single ground. Justice Edelman provided a more scholarly assessment of the range of manner and form issues, but joined the rest of the Court in resolving the manner and form issues on the same ground. 

The Facts 

In 2001, Mineralogy Pty Ltd, International Minerals Pty Ltd and the WA Government entered into an agreement concerning mining tenements (the State Agreement). The State Agreement and a variation of it were attached as Schedules to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (the State Act). Section 4 of the State Act stated that the State Agreement ‘is ratified’, that its implementation ‘is authorised’ and that ‘[w]ithout limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law’. 

Clause 32 of the State Agreement provided that the parties could, by agreement in writing, vary the State Agreement. Sub-clauses 32(2) and (3) then required the Minister to cause any such variation to be laid on the table of each House of Parliament within 12 sitting days of its execution. Either House had a further 12 sitting days to pass a resolution disallowing the variation agreement. If it did not do so within that period, the variation to the State Agreement would take effect. The variation of the State Agreement therefore required not only the agreement of the parties but also the default agreement of Parliament through its failure to disallow a variation during the requisite period. This parliamentary involvement presumably reflected the fact that legal effect was given to provisions of the State Agreement, once varied. 

In 2020, however, the State Act was amended by the enactment of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (the Amending Act). It inserted a new pt 3 in the State Act, which altered the effect of the State Agreement, including liability under it. The cl 32 procedure was not followed and there was no agreement between the parties to make the change. The plaintiffs, Mineralogy Pty Ltd and International Minerals Pty Ltd, claimed that the Amending Act was invalid for a range of reasons, all of which proved unsuccessful in the High Court. One significant argument was that the Amending Act was of no force or effect because it did not comply with the manner and form requirement in cl 32 of the State Agreement, contrary to the requirements of s 6 of the Australia Act 1986 (Cth) (ignoring the significance of the Australia Act 1986 (UK), which only Edelman J recognised in fn 93). 

Section 6 of the Australia Act 1986 (Cth) provides that: 

 … a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act. 

While s 6 is quite concise, it makes a number of critical distinctions that restrict its application to a narrow set of circumstances. It is therefore helpful to break it down to its elements. 

Is the Amending Act a law made by the Parliament of a State respecting the constitution, powers or procedures of the Parliament of the State? 

Section 6 of the Australia Act addresses the consequence of a failure to comply with the required manner and form of making a particular kind of law. It applies to a ‘law made… by the Parliament of a State’. In this case, the Amending Act clearly falls within that category. It was made after the Australia Act came into force on 3 March 1986, satisfying the temporal aspect of s 6.  

The law must also be a law ‘respecting the constitution, powers or procedure of the Parliament of the State’. This is where the first main problem arises. The Amending Act is addressed at issues concerning liability arising out of the application of the State Agreement and the State Act concerning mining tenements. It does not directly deal with how the Parliament is constituted or its powers of procedures. The plaintiffs, however, argued at [90] of their submissions (in B54/2020) that there were three aspects of the Amending Act which made it a law ‘respecting’ the constitution, powers or procedure of the WA Parliament.  

First, they pointed to the fact that ss 18 and 19, inserted by the Amending Act, deal with ‘protected matters’, including, with retrospective effect, the introduction into Parliament of the Bill for the Amending Act, its passage through Parliament and its enactment. The Amending Act provides that these ‘protected matters’ cannot give rise to the commission of a civil wrong, or any kind of liability on behalf of the state. These sections therefore attribute legal consequences to parliamentary procedures and exercises of parliamentary power. The plaintiffs contended that this was enough to make the Amending Act a law ‘respecting’ the powers or procedure of Parliament. The degree of connection required by the word ‘respecting’ in this context remains unclear, but the argument is at least plausible. 

Second, the plaintiffs noted that s 30 inserted by the Amending Act includes a Henry VIII clause. It empowers the Governor, on the Minister’s recommendation, to make an order that has the effect of amending the new pt 3 in the State Act. It classifies the order as subsidiary legislation. The plaintiffs appeared to be arguing that this was a law respecting the powers of Parliament because it was delegating the Parliament’s legislative powers to another body and permitting it to exercise those powers in a manner that altered statutes. But if the inclusion of a section in a law that confers delegated legislative power on the executive government is enough to make it a law respecting the ‘constitution, powers or procedure of Parliament’, then almost all laws would, or could easily be drafted to, fall within this category. This would make a mockery of the limitation deliberately included in s 6, which was intended to confine the effect of s 6 to a restricted category of laws. Accordingly, this argument was unlikely to succeed. 

Third, it was argued that a number of sub-sections inserted by the Amending Act involve Parliament enlarging the effect otherwise attributable to its exercise of power. This, it was claimed, made it a law with respect to the powers of the Parliament. At the oral hearing, however, Gageler J observed that Parliament was just making a law, which is what Parliaments do ([2021] HCATrans 104 (15 June 2021), line 928). Again, if the mere exercise of legislative power by the enactment of provisions of a law made it a law respecting the powers of Parliament, then the condition in s 6 of the Australia Act would be rendered otiose. 

The WA Solicitor-General argued ([2021] HCATrans 107 (17 June 2021), lines 6485-90) that the various noted provisions do not affect the ‘constitution, powers or procedure’ of the Parliament because they do not affect the ability or process of Parliament to legislate. In this sense, powers and procedures are interpreted in the light of the ‘constitution’ of Parliament – being the reconstitution of Parliament, such as the addition or removal of its constitutive parts for the purpose of passing legislation, and its associated powers or procedures to pass legislation. 

The High Court, however, did not determine the question of whether the Amending Act was a law respecting ‘the constitution, powers or procedure’ of the state Parliament, as it was unnecessary to do so ([75] and [154]). Consideration of what is meant by ‘powers’ in this phrase might have helped determine whether many purportedly entrenched measures in the Constitution Act 1975 (Vic), including a recently entrenched anti-fracking provision, were effective in binding a future Parliament. But the plaintiffs’ arguments in this case were relatively weak and it is understandable that the High Court was not prepared to wade into the murky waters of manner and form if it could be avoided. 

Was the Amending Act ‘made in such manner and form as may from time to time be required by a law made by that Parliament’? 

The other aspect of s 6 of the Australia Act addresses whether the law in question was ‘made in such manner and form as may from time to time be required by a law made by that Parliament’. Breaking it down further, it means that: 

(a) the requirement must be directed at the manner and form by which a law is made – not the abdication of legislative power; 

(b) the manner and form requirement must be imposed by a law made by that Parliament; and 

(c) the manner and form requirement must be directed to the making of a law by that Parliament. 

(a) Manner and form – not abdication 

The requirement must be addressed to the manner and form of the making of a law by Parliament. In this case, the claimed manner and form requirement, set out in cl 32, commenced with a condition that the parties to the State Agreement reach an agreement upon its variation. This is not a manner and form requirement for the making of a law, because it requires prior agreement of a third party – a corporation – independent of Parliament. If effective, this would amount to an abdication of legislative power, rather than a manner and form for its exercise. Section 6 does not operate to give effect to the abdication of legislative power – it only gives effect to requirements about the manner and form in which a law is made. 

Section 6 would, however, potentially accommodate a ‘reconstitution’ of Parliament, such as by adding an additional House for the purpose of enacting a particular type of law. While the electors, in a referendum, can be regarded as a part of Parliament, due to their constitutive role as electors, it is hard to see how a mining corporation could be regarded as a third House of Parliament for the passage of a particular law.  

The joint judgment did not address this issue, but Edelman J did so briefly. He observed at [151] that much clearer words would have been required to evince an intention that Parliament be reconstituted for the purpose of the alteration of the State Agreement. He also noted at [152] that such a constraint may in fact be regarded as the removal of legislative power, rather than a manner and form provision. This would mean it was not given effect by s 6 of the Australia Act. 

(b) The manner and form requirement must be imposed by a law 

Section 6 of the Australia Act only addresses ‘such manner and form as may from time to time be required by a law made by that Parliament’. In this case, however, it was purportedly imposed by cl 32 of the State Agreement. This raised the question of whether cl 32 had become a law, by virtue of the application of the State Act and the Government Agreements Act 1979 (WA).  

This issue was again not addressed in the joint judgment, but was addressed by Edelman J. He noted at [123] that Western Australia and the interveners had argued that the provisions of the State Agreement are only given effect by state legislation to the extent that they remain enforceable as a matter of contract law, clearing any legislative obstacles out of their path to take legal effect. His Honour found, however, that the Government Agreements Act went further. It not only removed obstacles to the contractual operation of provisions in agreements, but it also gave statutory effect to provisions ‘notwithstanding any other Act or law’, and allowed them to modify any other Act or law. Justice Edelman concluded at [134] that this ‘could only be possible if the provision of the Government agreement had the force of statutory law’.  

Further, there were numerous provisions in the State Agreement that purported to modify laws. For example, cls 9(2) and 9(5) purported to modify the Mining Act 1978 (WA) and cl 20(7) purported to modify the Aboriginal Heritage Act 1972 (WA). Justice Edelman concluded at [144] that by ‘altering the manner in which a provision can “have effect” as a statute, cl 32 itself is a provision that must have the force of statute law’. 

If cl 32 did amount to a law of the WA Parliament, through the application of the State Act or the Government Agreements Act, this raised a further manner and form issue. Such a law, to the extent that it provided for the reconstitution of the Parliament or imposed limitations on the exercise of legislative power, could itself be held to be of no force or effect for having not complied with the manner and form provision in s 73 of the Constitution Act 1889 (WA). Section 73 entrenches s 2 of the Constitution Act, which constitutes the Western Australian Parliament and confers plenary legislative power upon it. The passage of any law that reconstitutes the Western Australian Parliament or limits its plenary power would therefore appear to need to meet the required manner and form, being the approval of an absolute majority in both Houses and the approval of the electors in a referendum. Neither cl 32, nor the statutes that gave it legal effect, met these manner and form requirements, leaving their effectiveness at imposing their own manner and form requirements doubtful. This argument was noted by Edelman J at [153], but for the reasons below, he did not have to decide upon it.  

(c) Constraint upon the making of a law by Parliament 

Even if cl 32 could be regarded as a having statutory force, it did not purport to control the enactment of legislation, such as the Amending Act, which did not arise from an agreement between the parties.  

Section 6 of the Australia Act only operates where the manner and form requirement applies to the making of a law by Parliament. Clause 32 is directed to the making of variations of the State Agreement. Even if the variation may be given legal effect (due to the application of the State Act and the Government Agreements Act) once the cl 32 procedure is completed, this has no impact upon Parliament passing any law, including one to amend the State Act. This was the decisive point for all members of the Court. The joint judgment observed at [79]: 

Neither in form nor in substance does cl 32 of the State Agreement prescribe a requirement as to the manner or as to the form in which a law is to be made by the Parliament of Western Australia. Rather, cl 32(1) prescribes the parameters within which the parties to the State Agreement may agree to a variation of the State Agreement.  

Although tabling and disallowance conditions were included in cl 32(2) and (3), they were directed at the effectiveness of the variation of the State Agreement. Disallowance is a procedure for ‘unmaking’ delegated legislation that had been made by the executive, not for the making of a law by Parliament. As the joint judgment pointed out at [79], the ‘involvement of the Houses of Parliament does not make the process for which the clause provides a process of making a law by the Parliament’.  

Nothing in cl 32 is directed at restricting the manner and form in which Parliament may enact a law amending the State Act. The plaintiffs, however, argued that it must be implied that cl 32 was the exclusive way in which the State Agreement could be varied, including any variation as a consequence of the enactment of a statute by Parliament. This would have meant that Parliament could not, without first having the agreement of the parties to the State Agreement, enact amendments to the State Act which affected the operation of the State Agreement. The joint judgment, at [80], rejected such an implication. Their Honours did not accept that such a ‘drastic step of attempting to limit the legislature’s freedom to legislate’ could be discerned from the wording of cl 32.  

Justice Edelman addressed the issue in greater detail. He, too, rejected the argument for such an implication on a number of grounds. He distinguished the provisions in the State Agreement from the more direct provisions in the earlier case of Commonwealth Aluminium Corporation Ltd v Attorney-General [1976] Qd R 231, which did purport to limit legislative power. He concluded at [150] that cl 32 could not be regarded as the exclusive method of altering the State Agreement because it was clear that an order made in arbitration could also do so.  

Justice Edelman also pointed out that if the argument were to be accepted, cl 32, as given effect by statute, would have purported to abdicate the legislative power of the Parliament by preventing it from enacting such a law without the prior agreement of non-parliamentary third parties. But it was unnecessary to pursue this issue because he concluded at [154] that as a matter of interpretation, ‘cl 32 imposed no manner and form requirement upon Parliament in unilaterally enacting the Amendment Act’.  

Observations 

The Mineralogy case illustrated the complexity of the law concerning the application of state manner and form constraints and the many issues which have still not been adequately resolved, or even addressed, by the courts. We will have to continue waiting for guidance on the meaning of the ‘constitution, powers or procedure’ of the Parliament and the relationship between the reconstitution of Parliament and the abdication of legislative power. 

Of greater note, perhaps, is that the case illuminated the problems that arise when statutes give contractual agreements between the Government and private parties the effect of law or permit the terms of those agreements to alter existing statutes. This means that non-parliamentary and non-government parties are involved in making law and deciding matters that overrule statutes passed by Parliament. Henry VIII clauses have always been a source of democratic concern, as they allow the executive, through the making of delegated legislation, to alter statutes. But the executive is at least formed by those holding the confidence of the lower House, who are responsible to it. It is surely of much greater concern when it is non-government corporations, which are only responsible to their shareholders, that can exert control over the law in this way. 

It is also unclear how such powers interact with manner and form constraints. The Mineralogy case highlighted how s 6 of the Australia Act hinges upon the manner and form requirement constraining the enactment of a law ‘by Parliament’. What if the law is not enacted by Parliament, but is instead made by the executive or by a contractual agreement and given the force of law by an existing statutory provision? Does this render the manner and form constraint ineffective and is it therefore a way around inconveniently entrenched provisions?  

For example, s 7A of the Constitution Act 1902 (NSW) entrenches both the existence and powers of the NSW Legislative Council, requiring the approval of electors in a referendum for its abolition or any alteration of its powers. What if a state emergency statute contained a Henry VIII clause that allowed the Health Minister, during a pandemic, to make orders that facilitate the management of law and order, and allowed those orders to alter any inconsistent law? If the management of law and order during the pandemic was being impeded by the refusal of the Legislative Council to pass certain laws, could the Health Minister make an order that abolished the Legislative Council or reconstituted Parliament so that laws relevant to a pandemic need only be passed by the Legislative Assembly? It would not be a law made by the Parliament of the state, as it was made by the Minister. Hence, s 6 of the Australia Act would appear not to apply.  

If such a situation arose, the likely outcome would be that the Henry VIII clause would be read down so as to exclude the making of an order that would give rise to an indirect breach of the manner and form constraint. Nonetheless, one can see the complications that arise once we move away from Parliament having full responsibility for the enactment of laws and we allow others to make laws that alter statutes enacted by Parliament. Manner and form constraints are predicated upon laws being made by Parliament. The further one moves away from that position, the greater the legal difficulties that arise.

—

Anne Twomey is a Professor of Constitutional Law and Director of the Constitution Reform Unit at the University of Sydney.

Suggested citation: Anne Twomey, ‘Manner and form mysteries highlighted but unresolved in Mineralogy v WA’ on AUSPUBLAW (1 December 2021) <https://auspublaw.org/blog/2021/12/manner-and-form-mysteries-highlighted-but-unresolved-in-mineralogy-v-wa-_/>