The Australian Dilemma
What Australians believe. What the law says. And the gap between them.
Most Australians believe the minerals, oil, and gas beneath their feet belong to them. They assume that electing a government means the government manages those resources on their behalf. They assume that royalties and taxes paid by mining companies flow back to the public through schools, hospitals, and roads. They assume that if politicians fail to deliver a fair share, a better election result will fix it.
Every one of those assumptions is wrong. Not morally wrong. Legally wrong.
This is the Australian dilemma. The people believe one thing. The law says another. And the path between those two positions has been blocked at every turn for 125 years.
What the Law Says
All minerals, oil, and gas beneath Australian soil belong to the Crown. Not to the landowner above. Not to the community nearby. Not to the Traditional Owners of the Country. To the Crown.
The Crown is not the people. The Crown is the King of Australia, currently King Charles III, acting through appointed representatives. At the federal level, the Governor-General. At the state level, six State Governors, one for each state.
These are not the same Crown. They are seven separate legal entities. The King of Australia, the King of New South Wales, the King of Victoria, the King of Queensland, the King of Western Australia, the King of South Australia, and the King of Tasmania are seven legally distinct positions, confirmed as separate by the High Court in a 1999 case (known in law as Sue v Hill (1999) 199 CLR 462). They can sue each other. They hold separate assets. The Prime Minister cannot instruct a State Governor.
The minerals under New South Wales belong to the King of New South Wales, administered by the NSW government. The minerals under Queensland belong to the King of Queensland, administered by the Queensland government. And so on. The people of each state elected the government that administers those minerals. They did not elect the King who owns them.
This is not new law. The Crown's ownership of minerals traces back to an English court decision in 1568. That decision held that all mines of gold and silver belong to the monarch by the personal legal powers of the monarch, inherited from medieval times (known in law as royal prerogative). Australian colonial legislatures inherited that principle and extended it to cover every mineral under Australian soil. It has never been repealed. Not by federation in 1901. Not by the Australia Acts in 1986. Not by the Mabo decision in 1992. Not by the republican referendum in 1999.
What the Treasuries Are
People assume that government treasuries hold public money in trust for citizens. That is not what Australian law says.
The Commonwealth of Australia Constitution Act 1901, Section 81, describes the federal Treasury as a Consolidated Revenue Fund to be allocated by Parliament (known in law as appropriated) for the purposes of the Commonwealth. Not held in trust for Australians. Allocated for the purposes of the Commonwealth Crown, as directed by Parliament. Every state Constitution contains the same provision for its own Consolidated Revenue Fund.
Royalties paid by mining companies go into those funds. Parliament decides how to spend them. The people vote for Parliament. But Parliament is not legally required to direct one dollar of resource revenue to the communities living above the mines. What communities receive through public services is a political decision. It is not a legal entitlement.
There is no Australian law that says the community above a mineral deposit is owed a share of what is extracted from beneath it.
Why the Political System Cannot Fix This
If the law does not give communities a share, the obvious response is to change the law. Elect politicians who will do it. Pass new legislation. This has been attempted. It has not worked.
1975: The Whitlam removal
In 1975, Prime Minister Gough Whitlam moved to redirect resource wealth toward Australians. He was removed from office by an unelected Governor-General using the discretionary powers of the Governor-General that are not fully written down in the Constitution (known in law as Crown reserve powers). The Loans Affair and a Senate supply blockade preceded the dismissal. Subsequent declassified material (government documents later released to the public) has surfaced allegations of foreign intelligence involvement which remain historically contested. No Australian court has ruled that removal unconstitutional. The reserve powers used that day remain available to any future Governor-General.
2010: The Resources Super Profits Tax
In 2010, Prime Minister Kevin Rudd introduced the Resources Super Profits Tax, designed to deliver a greater share of mining profits to the Australian public. The mining industry spent approximately $22 million on advertising against it, per Australian Electoral Commission disclosures and published industry reports. Industry total spend on the combined advertising and lobbying campaign was reported at over $100 million. Rudd was replaced as Prime Minister by his own party shortly after. His successor gutted the tax before it passed. The version that became law collected so little revenue it was abolished in 2014.
1987 onwards: The Petroleum Resource Rent Tax
The Petroleum Resource Rent Tax, introduced under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth), is a profit-based tax that does not apply until a company has recovered all of its costs. Companies can defer payments and claim offsets. The Callaghan Review in 2017 found it was collecting far less than it should from Australia's gas boom. In several of those years, Australia was the world's largest or second largest LNG exporter on earth. Some of the largest LNG projects paid zero PRRT.
The mining industry is one of the largest donors to both major political parties in Australia. This is a matter of public record, published by the Australian Electoral Commission. Politicians who challenge the industry's tax arrangements face well-funded opposition. Politicians who do not challenge them do not.
The Australian people vote once every three to four years on a package of policies. The mining industry engages with politicians continuously, with significant financial resources. The people are the least organised and least resourced participant in this relationship.
This is not corruption in the criminal law sense. It is the legal operation of a political funding system built without adequate separation between private resource wealth and public political decision-making.
What Mabo Did and Did Not Change
The Mabo decision in 1992, Mabo v Queensland (No 2) (1992) 175 CLR 1, was a profound legal and moral recognition of First Nations peoples' connection to Country. The High Court overturned the legal fiction that Australia was empty of people and law when the British arrived (known in law as terra nullius) and held that Native Title can survive colonisation where it has not been cancelled by a valid Crown action, such as a freehold grant (known in law as extinguishment).
It did not change who owns the minerals.
The majority judgments in Mabo explicitly preserved the Crown's underlying ultimate ownership of land (known in law as radical title) over all land in Australia. Native Title, where it exists, is a right to use and occupy the surface of the land. It is not a right to the minerals, oil, or gas beneath it. The Native Title Act 1993 (Cth) confirmed this. The High Court further confirmed it directly in Western Australia v Ward (2002) 213 CLR 1, a 2002 High Court case which held there is no Native Title right or interest in minerals and petroleum. The Crown's ownership of subsurface resources is preserved by the common law foundation of Mabo itself, by the structure of the Native Title Act, and by the Ward decision.
Native Title gives Traditional Owners the right to be consulted before a mining lease is granted on their Country. Not the right to ownership. Not the right to a share of what is extracted. Consultation is not ownership.
Thirty years after Mabo, the minerals under Bundjalung Nation Country in northern New South Wales still belong to the King of New South Wales.
The Dilemma Stated Plainly
The people believe the resources are theirs
The law says they belong to the King.
The people believe electing governments means resource revenues are held for them
The Constitution says those revenues belong to the Crown's Consolidated Revenue Fund, to be spent at Parliament's discretion.
The people believe they can fix this by electing better politicians
History says every serious attempt at structural reform has been stopped, by Crown reserve powers, by industry funding of political parties, or by legislation being gutted before it reached its purpose.
The people believe Mabo gave First Nations communities ownership of what lies beneath their Country
The High Court and the Native Title Act say it did not.
The gap between what Australians believe and what the law provides is not a small one. It is structural. It is 450 years old. It has survived every reform attempt in the 125 years since federation.
The One Door That Is Open
The Crown owns the minerals. But the Crown grants exploration licences and mining leases to companies. Those companies are regulated by the Corporations Act 2001 (Cth). Every person who holds a CHESS-registered share in an ASX-listed company holds direct rights given by Act of Parliament, not by the company's permission (known in law as statutory rights) inside it.
The right to attend general meetings
Every CHESS-registered shareholder can attend the annual general meeting of the company and speak on the record.
The right to vote on resolutions
Shareholders vote on board appointments, remuneration, and major decisions about how the company operates its tenements.
The right to question the board
Directors must answer questions from shareholders at general meetings.
The right to participate in any dividend the company's board declares, on equal terms with every other shareholder of that class
Every shareholder participates in distributions equally by share class.
These rights do not come from the Crown. They come from the Corporations Act. The Crown cannot override them. A Premier cannot override them. A Prime Minister cannot override them. They are enforceable in court regardless of the size of the holding.
The Crown owns the minerals. But the Corporations Act opens the door to the room where decisions about those minerals are made.
COGS of Australia Foundation puts community members in the room where those decisions are made. The Trustee holds CHESS-registered shares as trust property. Members direct how those shares are voted at portfolio company general meetings through the proprietary cryptographic governance system. The Trustee executes valid member directions. The legal voice in the room is the members' voice, exercised through a structure designed to keep day-to-day control with the community.
Not charity. Not politics. The law, used by the people it was never intended to serve.
Not a protest. Not a political movement. A legal structure we can all stand on.
Continue reading: Australian Mineral Law: the full legal reference. The Fifty Years: the political record.