Energy Resources of Australia Limited v Chief Executive Officer of Customs

Case [1997] AATA 11928

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(Decision by: BJ McMAHON)

Energy Resources of Australia Limited
v Chief Executive Officer of Customs No. N96/504 AAT No. 11928

Tribunal:

Member:
BJ McMAHON (Deputy President)

Hearing date: 26-27 May 1997
Decision date: 6 June 1997.

Sydney

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Decision by:
BJ McMAHON

REASONS FOR DECISION

1. This is an application to review a decision made on 26 March 1996 refusing to approve payment of rebate on diesel fuel purchased by the applicant for use, or used, in the generation of electricity for the township of Jabiru.

2. This town is unusual in a number of respects. Both it and the Ranger uranium mine are situated within the Kakadu National Park. They are located on land owned by authorities that control the park. Even the town roads are vested in that body. Reference will be made later to the details of the governing legislation.

3. The mine is approximately 10.5 kilometres east of the township of Jabiru. Located at the mine is a single power station, powered by five diesel alternators and one steam generator. This power station provides electricity to all areas of the mining operation at the site, Jabiru airport, Jabiru town and industrial area, and off site water pumps, by way of above ground transmission lines.

4. When the town was first established, it was clearly identified primarily as a mining town in the everyday meaning of that word, designed to provide accommodation and services to the employees of the mine. Deposits of uranium had been found in the Alligator River region within the boundaries of the National Park. Originally, three companies, Ranger Uranium Mine Pty Limited, Peko-Wallsend Operations Limited and Electrolytic Zinc Co of Australasia Limited intended to mine in the area. Jabiru was intended to service employees of all three mines and certain consequential arrangements were made between the relevant companies. Ultimately, however, because of changes of government policy only one mine proceeded. The applicant was formed to acquire all the shares in Ranger Uranium Mine Pty Limited and to acquire the mining rights of the other two companies. The change of policy, however, meant that a considerable amount was spent on infrastructure which became unnecessary. The number of employees originally intended to be housed in the town was considerably smaller by the time construction of the town had been completed.

5. The cost of construction was shared by way of loans as to approximately seventy two per cent by the applicant and as to the balance by the Commonwealth and Northern Territory Governments. The Jabiru Town Development Authority (`the Authority' - to which reference will be later made in more detail) was established for the purpose of constructing the town. The assets it acquired through this method of financing, it continued, and still continues, to hold in trust. It is not necessary to resolve the question how trusts could result from loans. Administration of these assets and the consequent financial arrangements are covered by a document dated 14 May 1985, recording an agreement between the Authority and the applicant and generally referred to as the cost sharing agreement. Construction took place between 1979 and 1983.

6. It is generally acknowledged that the Authority, by now, has delegated most of its functions to the Jabiru Town Council (`the Council') to which I will later refer. It has, however, retained control over the approval of the Council's budget through control over the rates and over the setting of terms and conditions of employment for its employees. The Authority has approximately $2.7 million in its trust account arising from the sale of land in Jabiru, initial contributions made towards the construction of the town and interest on those contributions. Moneys advanced for the construction costs totalling some $30 million are still owing by the Authority. Of the seven members of the Authority, the applicant has the right to nominate three. Its influence, however, is considerable because of its position as a substantial creditor.

7. Resolution of the present review will ultimately depend upon the way in which the definition "mining town" in the relevant statute is to be applied . However, it can be observed at this stage, that Jabiru is unlike other councils in many respects. It is true that all its membership is elected by residents of the area except for one person who is nominated by the applicant. There are approximately 1,700 people who live in the Jabiru town area. All of them have adult franchise. There are a few who live outside the town boundaries. They also have a right of election of councillors because of the particular arrangements made in the constitution of this body. There are, however, only seventeen ratepayers in the town area. Most of these are organisations, the applicant being by far the largest of the ratepayers. The Council is subject to certain special rules concerning its internal management which were set out in paragraph 14 of the Town Clerk's statement tendered in evidence.

8. Rules relating to land ownership are unusual in Jabiru. All of the land situated within the Kakadu National Park is aboriginal land except the leased area in which Jabiru is situated. This is owned by the Commonwealth and administered by the Director of the Park, who has leased the area on which the town is situated to the Jabiru Town Development Authority. This Authority then has discretion to grant sub-leases over the land to people falling within four specific classes. These are confined to people who are, or are about to become, a resident of Jabiru, people conducting businesses in or around Jabiru, people approved to hold a sub-lease by the Authority and people conducting mining operations in or around Jabiru. There is no property investment or property speculation possible within the town. There are also specific rules that are peculiar to Jabiru brought about by the fact that it is located within a National Park. These rules relate to conservation, licences, leaseholding, liquor licensing and the approval of the town plan.

9. As will later be seen, however, the Council does have many powers and functions in common with other councils in the Northern Territory. Apart from these powers and functions it is treated as a local government body in various contexts. For example, it was declared as a "local governing body" under the Local Government (Financial Assistance) Act 1986 (Cth) and continues to enjoy this status under the current Local Government (Financial Assistance) Act 1995 (Cth). The fact that this is Commonwealth legislation is significant when considering the terms of the statutory definition. However within the Northern Territory, it is also significant to note that the Jabiru Town Council was a foundation member of the Local Government Association of the Northern Territory which is presently constituted under s 224 of the Northern Territory Local Government Act 1993. Membership is restricted to local governing bodies constituted under the laws of the Northern Territory or Commonwealth.

10. I turn now to some of the documentary evidence and to the relevant legislation.

CUSTOMS ACT AND EXPLANATORY MEMORANDUM

11. Sub-section 164(1) provides that a rebate of duty is payable to a person who purchases diesel fuel for use by him in mining operations. Previously "mining operations" was defined with reference to the direct act of mining and was further defined to include "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."

12. A series of amendments in 1995 and 1996 re-defined "mining operations" by abandoning the concept of including operations "connected with" mainstream mining and by defining with more precision those operations that were intended to be included in the definition.

13. As a result of these amendments, the relevant activity included in the definition of "mining operations" is now to be found in paragraph (j) which is in the following terms--

"(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; ... "

"Mining Town" is defined to mean the following --

"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."

14. The amendments were largely introduced by the Customs and Excise Legislation Amendment Bill 1995. This Bill lapsed when Parliament was prorogued. It was re-introduced as Customs and Excise Legislation Amendment Act 1995 (Number 87 of 1995). There was a further piece of amending legislation (Number 21 of 1996) said to be intended to clear up technical defects in the drafting. The word "principally" had appeared before the words "administered by." The amending Act moved the adverb to its present position so that the definition reads "principally to house employees." It was said that in the flurry of amendments in the Senate to the legislation, an error of transcription occurred when the final form of the Bill was certified.

15. The applicant places some reliance on this amendment. It submitted that it was relevant in rebutting the argument that the Jabiru Town Council might be regarded as an organisation falling within paragraph (b) of the definition. In the applicant's submission, the deletion of the word "principally" was significant and must be given effect to. It was submitted that whilst it was true that the Council had principal (but not exclusive) responsibility for providing municipal services in Jabiru, it was the Authority which had ultimate statutory power and responsibility for administering the town and plainly the Authority was not a council nor should it be taken to be one. The explanatory memorandum introduced with the amending legislation referred to the transposition of the word "principally" as a technical amendment and in my view this is a correct characterisation of the amending legislation. The applicant has sought to reject the explanatory memorandum in this case and to put its own gloss on the effect of the amendment. In my view, nothing turns upon the transposition of the word and certainly the amendment does not, in my view, alter the meaning of the word "administered." What may be important, however, is that the amendment shows that the terms of the definition were considered at least three times by Parliament -- firstly when the Bill was first introduced in 1995, secondly when the Bill was reintroduced later that year and thirdly when the amendment was considered in 1996. I must assume therefore, that the words of the definition now reflect a considered decision by Parliament.

16. The importance of this is that the applicant relies to some extent upon a reading of the definition in the light of the original explanatory memorandum. It is not suggested that the words in that explanatory memorandum should be substituted for the words in the statute. It is, however, submitted by the applicant that for the purposes of s 15AA of the Acts Interpretation Act 1901, the purpose or object of the statute should be discerned from the explanatory memorandum and it should be interpreted in such a way as to give effect to that purpose or object.

17. In the past, rebates of duty have been allowed in respect of diesel fuel purchased for use in generating electricity to be supplied to towns associated with mining operations. Examples can be seen in Re Western Mining Corporation and Collector of Customs (1985) 9 ALN N148a, Re Western Mining Corporation and Collector of Customs (No. 2) (1985) 9 ALN N26 and Re Mt Newman Mining Co Pty Limited & Others and Collector of Customs (1985) 9 ALN N146. In District Council of Coober Pedy v Collector of Customs (1993) 17 AAR 369 at 383 Hill J observed that in most of those cases the suppliers of electricity were also miners and that they were required as part of their obligations in the development of the mines to provide electricity. From the time of Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 , it might be said that there was a discernible trend in decisions of the Federal Court to include activities of electricity generation as activities connected with mining in circumstances less direct than those considered in the earlier cases. At any event, this seems to have been the view adopted by the Government. It is referred to in the explanatory memorandum introducing the first amending Bill.

18. The memorandum explains --

"The amendments are principally designed to tighten the eligibility criteria for rebates of customs or excise duty which have been paid on purchases of diesel- fuel, so that the integrity of the Scheme as it was introduced in 1982, to assist those engaged in mainstream primary production and those engaged in mainstream mining operations, can be maintained."

19. The explanatory memorandum went on to indicate that the amendments were intended to specify a clear list of activities in which the use of diesel fuel was to be eligible for the payment of the rebate. The so-called "sweeper clauses" (referring to the concept of "connected with") were to be revoked. Instead, the memorandum proposed to clarify the ambit of the scheme as "a targeted scheme intended to provide rebate of duty paid on diesel fuel used by those who are genuinely involved in the business of mining or farming, or those who undertake activities that are intimately bound up with mining or farming." The memorandum referred to the earlier cases in these words --

"Rebate was originally intended to be payable to those who the ordinary person would have considered to be `farmers' and `miners.' However, as the years have progressed, various decisions of courts and tribunals have expanded the ambit of the [diesel fuel rebate scheme] to the extent that many activities that should never have been regarded as being eligible to receive rebate have received, and continued to receive, rebate."

20. The amended definition of "mining operations" targeted activities "that are sufficiently connected with mining." The memorandum explained that the "amendment proposed by [the sub-section] removes any doubt that the [diesel fuel rebate scheme] is a targeted scheme providing rebate of customs and excise duty in respect of diesel fuel used in those activities that fall fully within the activities specified in the new definition of "mining operations", rather than in respect of activities that may, in a loose sense, go towards "encouraging" mining operations."

21. The legislature chose to identify eligible mining towns in the terms quoted above. Other criteria could have served to define the types of mining towns intended to be eligible for the rebate. Some of the tests referred to by Hill J above could have been adapted for that purpose. Instead Parliament chose to define "mining town" in the above terms and to exclude from the general definition towns administered by councils as above described. The explanatory memorandum then sets out the reasoning behind the definition. This extract was heavily relied upon by the applicant for the purposes to which I have referred. It was explained in the memorandum that the proposal was for diesel fuel for use in certain activities to be eligible to receive the rebate. These activities included the generation of electricity for the provision of electricity for a "mining town when the electricity had to be produced so as to allow the mining of minerals to take place at all". It then went on to explain the new definition in these words --

"The new definition of "mining town" for the purposes of the [diesel fuel rebate scheme] is inserted into subsection 164(7) of the Customs Act by item 10 of the [Customs and Excise Legislation Amendment Act 1995]. A mining town is essentially a town that had to be built from scratch by a mining company in an isolated location somewhere near the mine site to house its employees, and which has not yet matured sufficiently as a community in its own right so as to be controlled by a town council established pursuant to the local government legislation of the States and Territories".

22. The applicant relied particularly upon the word "controlled" in submitting that the town council in question did not control the community, but was itself controlled by another entity. The applicant secondly relied on the explanatory memorandum because of the definite article "the" before "local government legislation." It was submitted that this word (which does not appear in the statutory definition) in the present circumstances was a reference to the Northern Territory Local Government Act 1993 and not to any other legislation which might have a local government application.

23. The primary rule of statutory construction is of course that words must be given their ordinary meaning. In the context of this legislation, there is ample authority for the proposition that one should adopt a "common sense and commercial approach to construction." Authorities for this proposition are collected and referred to in Re Boral Resources (NSW) Limited & Others and Chief Executive Officer, Australian Customs Service (1996) 24 AAR 253 at 277. Nevertheless, if there is a clear dichotomy between the language of the statute and the language of the explanatory memorandum, the former must prevail.

24. In my view, there is no such dichotomy. The statutory definition can be read comfortably in conjunction with the explanatory memorandum when one bears in mind the intention of the legislation set out earlier in the explanatory memorandum. Section 15AA of the Acts Interpretation Act merely restates a rule of construction which the common law had recognised for many years as a desirable rule. What the applicant really sought to do, in the reliance it placed upon the explanatory memorandum, was to seek to invoke the provisions of s 15AB. It sought to do this by construing the memorandum as if it were a legal document and by seeking to read down some words in the statute by reference to the explanatory note as so construed. In my view, this is not a permissible use of the explanatory note (Re Australian Federation of Construction Contractors; ex parte Billing (1986) 68 ALR 416 at 420). Once the analytical approach to the memorandum is set aside, however, it seems to me that there is no significant inconsistency between its terms and the resultant statutory definition. One can understand an approach by the draftsperson in equating the legislative intent to describe a community sufficiently matured in its own right with a town administered by a town council. One can also understand a draftsperson's approach to the phrase "the local government legislation" to mean "all the local government legislation" rather than the most important Act in that category. Looked at in this light, the terms of the definition, it seems to me, are consistent with the language of the sponsors of the Bill.

25. In the present application there is no dispute that the remaining terms of paragraph (j) of the definition "mining operations" have been complied with. The only issues arise out of the application of the definition of "mining town." The first issue is whether Jabiru was constructed by or on behalf of the applicant. This is a question of fact. The town was legally constructed by the Authority which engaged project managers for that purpose. The cost of construction was paid for partly by the applicant and partly by government authorities. Having regard to the fact that some government presence must be expected in any mining town, a commonsense and commercial approach requires a finding that as with the traditional mining towns, Jabiru was constructed by, or on behalf of, the mining company. There was no dispute that Jabiru is in an area where, immediately prior to its construction, there was no town. There is also no dispute that Jabiru exists principally to house employees of the applicant, if one takes a commonsense and commercial view of the phrase to include associated businesses and organisations such as the Housing Commission, the police station, the Town Council and so on. The real question to be decided is the second issue, namely, whether Jabiru is "a town administered by a Council that is constituted under local government legislation" of the Northern Territory. The primary meaning of "administer" given by the Macquarie Dictionary is to manage the affairs of, or have charge of, or the execution of. Whether the affairs of the town are administered by the Jabiru Town Council, therefore, is a question of fact. To succeed in avoiding the application of this exemption, the applicant would need to show that "administered" meant more than factual management but also implied legal control. Of course, no council has absolute control in the government of its local government area. What the applicant sought to show was that the degree of legal control over the affairs of the council was such that the council could not be said to be administering the town.

JABIRU TOWN DEVELOPMENT ACT 1981 (NT)

26. This is an Act of the Parliament of the Northern Territory. Section 4 establishes the Jabiru Town Development Authority originally intended to supervise "the construction and management of the town of Jabiru." The Authority consists of the Chairman and not more than six other members, all of whom are appointed by the Minister. The functions of the Authority are set out in s 15. These include the development and maintenance of the town of Jabiru, the giving of leases of land and premises and parts of premises in the town, the administration, management and control of the town and the carrying out of such local government functions as are conferred on it by or under that Act. In carrying out these functions, the Authority exercises the powers set out in s 16. These include the control, management and maintenance of property works, utilities and other services and amenities and other community related activities.

27. Section 19A gives the Authority power to delegate any of its powers or functions to the Jabiru Town Council or to one or more of the members of the Council or to a member of Council's staff. In fact the evidence was that most of the powers and functions (with two important exceptions) were so delegated prior to the relevant collection year.

28. The Jabiru Town Council is established by s 25B as a corporation by the name of the Jabiru Town Council. Its functions, as set out in s 25D, are to exercise any power or perform any function delegated to it by the Authority or any of the powers and functions specified in schedule 2 of the Local Government Act 1993 (NT) (to which reference will later be made). The Act provides in s 25E for the election of members of the Council and further provisions are made for its internal management and finances. Although the Authority retains the power to make by-laws, there have been delegations of this power to the Council. Section 31 empowers the Council to administer the by-laws.

LOCAL GOVERNMENT ACT 1993 (NT)

29. Sub-section 121(2) of this Act describes the basic functions of Councils constituted under this Act by reference to schedule 2. These functions are incorporated by reference and are conferred upon the Jabiru Town Council. The Jabiru Town Development Act empowered the Jabiru Town Council to concern itself with all or any of these functions subject to any other limitations to be found in that Act. These functions include general public services, such as street lighting, aerodromes, markets, municipal administration and animal control; health services, such as those provided for infants and mothers, health inspection and ambulance services; social services such as those provided for child care, aged and disabled persons and community and social development; housing and community services, for example, cemeteries, storm water drainage, sanitation and garbage, street cleaning and town planning; recreation and related cultural services, such as swimming pools, libraries and museums and sport and recreation, and road works construction or maintenance such as the maintenance of roads, bridges, footways and cycle tracks, as well as traffic control.

30. This Act provides for the incorporation of Councils generally throughout the Northern Territory, both Municipal Councils and Community Government Councils. The Act provides for the way in which Councils are to be constituted and elected. It provides for their power to levy rates. It provides for control of roads, and gives power to make by-laws. Some of the general powers provided for in this umbrella legislation are not to be found among the legal powers of the Jabiru Town Council. There was a good deal of evidence directed to what was referred to as "normalising" the town of Jabiru. This was a reference to the general intention of those who are promoting the process to arrange for the incorporation of the Jabiru Town Council ultimately under the provisions of the Northern Territory Local Government Act.

ACTIVITIES OF JABIRU TOWN DEVELOPMENT AUTHORITY

31. The legal structure no longer reflects the day to day activities of either the Authority or the Council. As construction of the town was completed, the Authority divested itself of most of its management activities. It now has only one executive officer housed at Darwin in a section of the premises of the NT Department of Local Government. It meets quarterly. The diesel fuel rebate is claimed in respect of fuel used between 7 July 1995 and 16 January 1996. It is therefore to the fiscal year 1995/1996 that one must look to establish the reality of the Authority's activities carried out in Jabiru. Much of the material tendered in evidence (particularly past annual reports) can be regarded only as background leading up to the actual situation obtaining in the relevant collection year.

32. The annual report of the Authority for that year notes in its "overview" that since it was established "to develop and manage the town of Jabiru", it has gradually delegated responsibility for almost all of its local government service functions to the Council. Amongst its objectives and strategies, the Authority lists encouraging the social and economic development of Jabiru, the promotion of the tourism potential of the town, the acknowledgment and endorsement within the Kakadu National Park Plan of Management of changes, developments and opportunities proposed for the future of Jabiru, adding value to Jabiru's assets and enhancing its investment appeal, a mutual commitment by the NT Government and the applicant to a negotiated resolution to the cost sharing agreement, and negotiation of a mutually acceptable settlement between the applicant and the NT Government concerning arrangements with respect to the future provision of power, water and sewerage services to the town. The activities of the Authority, therefore, do not include an involvement in day to day local government activities. The primary functions of the Authority relate to matters of high policy affecting the future of the town. The Authority simply does not have the resources to carry out the types of day to day activities with which the Council concerns itself.

33. The cost sharing agreement was signed in 1985 when the town was originally designed to cater for a population of six thousand people in anticipation of three mines operating in the area. The Commonwealth Government's three mines policy subsequently permitted only one mine in the area, and as a consequence, the original investors are carrying the debts incurred as a result of the over investment in infrastructure. The resolution of the costs sharing agreement is an ongoing objective of the Authority.

34. The land encompassed within the Jabiru Town boundary is freehold land vested in the Director of the Australian Nature Conservation Agency. The Authority holds the head lease over the land from the Director of that agency for a period of forty years expiring in the year 2021. The Authority sees the head lease extension issue as being of paramount importance to the long term development and "normalisation" of Jabiru and states in its report that it has been endeavouring to obtain an extension for a number of years. The Authority considers that Jabiru as a town has significant potential for future development and desires to encourage further investment in the area.

35. The Authority has been involved in reviewing the Jabiru Town Plan (into which the Council has had some input) and in commenting on the 1997 draft Kakadu National Park Plan of Management. The Authority acknowledges that the Council has been delegated functions for local government services with the exception of staffing and the setting of land rates. It endorses an ultimate goal of seeing incorporation of the Council under the Local Government Act (NT) as a "fully democratic" local government body.

36. The revenue and expenditure statement of the Authority reflects the degree of its activities. Its total income for the year ended 30 June 1996 was $273,195. Of this amount, $198,295 was derived from interest on the so-called trust account. There was a grant of $72,000 and the sub-lease fees amounted to a mere $2,900. Expenditure was $128,496 leaving a surplus of $144,699. In the expenditure accounts, the largest items were for amortisation, consultants' fees and management fees.

ACTIVITIES OF JABIRU TOWN COUNCIL

37. As one would expect, the accounts of the Council indicate a much greater degree of activity than is reflected in the accounts of the Authority. Revenue of $970,179 was derived from rates. A further $470,727 was derived from user charges and other miscellaneous sources. Grants and donations provided a further $364,582 which, together with other incidentals, brought the total revenue to $1,830,548.

38. This was spent as to $682,032 on employees, $625,297 on materials and contracts, $11,396 on interest and further sums set aside for depreciation and other expenses, bringing the total expenditure to $1,818,924.

39. The Council is divided into two principal committees. The Works Committee is concerned with waste management, animal control, health and safety, environmental protection, water supply, sewerage, roads, car parks and paths, town lake, parks and reserves. The Administration Committee is concerned with financial management, inter government relations, personnel management, public relations, corporate services, town planning, risk management, motor vehicle registry, housing commission, children's services, library, community centre, aboriginal services, community development, sport and recreation, arts and culture, swimming pool, cemetery, tourism and economic development. Each of these functions is reflected in a particular program undertaken by the Council in the relevant year. Details of each of the programs, their objectives, backgrounds, achievements and costs are set out in the Council's Annual Report. Each of the programs indicates a considerable level of activity in the nominated areas.

CONCLUSION

40. Jabiru Town Council is constituted under the Jabiru Town Development Act. This is an Act relating to government of a particular locality. It can not be anything other than local government legislation. The applicant submits that this term should be read to mean "the local government legislation" and that the definition should be confined in its operation to Councils that are constituted under the NT Local Government Act. In my view, this is too restrictive an interpretation of the statute involving as it does the interpolation of a single word having a considerable narrowing effect. There are reasons why Jabiru was not incorporated under the NT Local Government Act. Its circumstances were unusual, both in origin and development. Although its functions may now be normal in the every day sense of the word, they have not always been so. It is true that it is not a municipal or community council. Nevertheless, at this stage of its development it must be regarded as a Council. In the primary definition set out in the Macquarie Dictionary, council is defined as "an assembly of persons summoned or convened for consultation, deliberation, or advice." The third meaning given is "a body of persons specially designated or selected to act in an advisory, administrative, or legislative capacity." Only in the last suggested definition does the dictionary define the word council as "the local administrative body of a city, municipality or shire."

41. On any view of the facts, the persons who together form the Jabiru Town Council must be regarded as a Council convened to deal with the affairs of Jabiru, so far as they can, and the body corporate which is the Council must, in my view, be regarded as having been constituted under local government legislation of the Northern Territory. The only question then is whether Jabiru is "administered by" that Council. As I have previously indicated, I consider that this is a question of fact. Whilst recognising that there are legal limitations on the extent of the powers of the Jabiru Town Council, it seems to me that there is clear agreement that the every day affairs of the area are administered by the Council and its officers. If a citizen of Jabiru wishes to complain about a neighbour's dog, that complaint is not lodged with a remote executive officer in Darwin. If a resident is unhappy about management of the town swimming pool, he or she will complain to the Town Council which will attend to the complaint, notwithstanding the fact that the swimming pool is owned beneficially by the applicant. If shopkeepers complain about parking conditions in the shopping centre, they will not take their complaints to the applicant, even though it is a large ratepayer and has a considerable influence in determining decisions of the Council.

42. The local resident will not be concerned with the conditions of the cost sharing agreement, nor with the high policy deliberations of the Authority. The local resident will be concerned to see that the peace and order of his or her neighbourhood are preserved and maintained in an appropriate day to day manner. He or she will be concerned to see that streets are swept, that drains are cleaned, that water is kept pure and made available, that social services are provided and that economic development is undertaken. The Council will provide these services and, in doing so, will administer the town. The evidence was that Jabiru is becoming a centre of tourism. There are two notable tourist hotels in the area. Whilst the definition does not preclude other industries from being carried on in a "mining town", it is important to note that the affairs of those industries are governed by the Council in the same way that all other local affairs are managed.

43. The legal anomalies identified by the applicant do not, in my view, detract from the general thrust of the factual evidence. Whatever happened prior to 1983, the fact is that in the relevant collection year the affairs of the town of Jabiru were administered by the Jabiru Town Council, a Council that was constituted under local government legislation. In my view, this puts the town squarely within the terms of the exception in the definition and excludes fuel purchased for the generation of electricity for supply to that town from eligibility for rebate.

44. Accordingly, the decision under review is affirmed.

Counsel for the Applicant Dr J Griffiths

Solicitor for the Applicant Ms A Archer, Blake Dawson Waldron

Solicitor for the Respondent Mr R Northcote, Australian Customs Service