For these reasons I answer questions 2 and 3 in the negative. These, however, are only questions of secondary importance. The main one is the first which relates to the respective substantive rights of the Commonwealth and the State, and it is as to their respective substantive rights that they desire to be informed.

There are three classes of land referred to in the special case - (1) lands not alienated from the Crown, acquired by the Commonwealth compulsorily under the Lands Acquisition Act 1906 (pars. 2 to 5 of the case); (2) lands alienated from the Crown, acquired as aforesaid (pars. 6 to 11); (3) lands vested in the Commonwealth under sec. 85 of the Constitution (pars. 12 to 15). I propose to consider question 1 as amended in the order of the paragraphs, not of the question as subdivided, as the lands in class 3 seem to me to present additional and special difficulty.

As to class 1 (pars. 2 to 5), I am of opinion that the Crown's prerogative right to the royal metals has not been acquired by the Commonwealth.

I pass by what seems to me to be certain inaccuracies in the statement of the case, such as the assumption that the Crown's prerogative right to royal metals is founded on reservations, &c., contained in the Crown grant and/or imposed by the law of the State (par. 18); and I shall endeavour to answer the questions of substance which the parties wish to have determined.

I base my opinion on the principle that when land is granted by the Crown, or by the State under the Crown's authority, or under an Act which relates to land and interests in land only, royal metals in the land do not pass. The title to the land and the title to the royal metals are quite distinct - as distinct as the titles to the King's land and the King's horses thereon (Case of Mines[58]; Attorney-General of British Columbia v. Attorney-General of Canada[59]; Esquimalt and Nanaimo Railway Co. v. Bainbridge[60]). The other minerals in the land, of course, pass with the land, being incident to the land - unless expressly excluded. There is a special principle of prerogative law involved; the law is not neutral on the subject of prerogative rights, and it leaves no room for conjecture or inference. It is not suggested, of course, that the Crown's prerogative rights as to property do not apply in Australia (and see In re Bateman's Trust[61]).

Question 1 (b) (pars. 2 to 5). - Certain unalienated Crown lands at Stockton and at Kenilworth were acquired compulsorily by the Commonwealth for defence purposes and for post office purposes under the Lands Acquisition Act 1906. The land vested in the Commonwealth under sec. 16 of the Act on the publication of the notification in the Gazette; as to Stockton, 4th April 1912. The description in the Gazette was merely by metes and bounds - as to the Stockton land, "all that piece or parcel of land containing 71 acres ... commencing at a point ... to the commencing point." Royal metals, like treasure trove, belong to the Crown by virtue of the prerogative, and do not pass as part of the land under which they lie unless the grant or statute say that they are to pass (see, in addition to the cases above mentioned, Attorney-General v. Trustees of the British Museum[62]).

That this doctrine is not a mere rule of conveyancing is made clear by the Magdalen College Case[63]. One of the resolutions of the Judges was that "where the King has any prerogative, estate, right, title, or interest ... by the general words of an Act he shall not be barred of them." In the famous case as to royal metals under Australian land - Woolley v. Attorney-General of Victoria[64] - the Judicial Committee of the Privy Council spoke of the doctrine as a recognized rule of construction of statutes - "the prerogative rights of the Crown can be affected only by express words or necessary implication." When the Federal Parliament passed a law for the acquisition of land by the Commonwealth, it did not legislate for the acquisition of royal metals; in fact, royal metals are not mentioned from first to last in the Act, although the widest interpretation is given to "land" in the interpretation section (sec. 5).

That the title to royal mines is absolutely distinct from the title to royal lands is shown emphatically by Lord Watson's language in delivering the opinion of the Judicial Committee in Attorney-General of British Columbia v. Attorney-General of Canada[65]: - "According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, are not regarded as partes soli, or as incidents of the land in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title from that to which its right to the precious metals must be ascribed. In the Mines Case2(1568) 1 Plowd., at p. 336a. all the Justices and Barons agreed that, in the case of the baser metals, no prerogative is given to the Crown; whereas all mines of gold and silver within the Realm, whether they be in the lands of the Queen or of subjects, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof and with other such incidents thereto as are necessary to be used for the getting of the ore. In British Columbia the right to public lands, and the right to precious metals in all Provincial lands, whether public or private, still rest upon titles as distinct as if the Crown had never parted with its beneficial interests." In that case, in pursuance of Articles of Union sanctioned by both the Canadian and the British Columbia Legislatures, the latter Legislature granted to the Dominion of Canada by statute the "public lands" for twenty miles on each side of a railway to be constructed by the Dominion through British Columbia (sec. 2), and also another area of land in Vancouver Island (sec. 3); and it was held by the Judicial Committee of the Privy Council that this statutory grant did not carry the royal mines. In a subsequent case, reliance was placed on the specially strong words in sec. 3 as to Vancouver Island; for the statute had, in addition to the lands, the words "including all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances whatsoever thereupon, therein, and thereunder"; but the argument was rejected by their Lordships, as not one of these expressions necessarily included royal metals or royal mines (Esquimalt and Nanaimo Railway Co. v. Bainbridge[67]).

These Canadian cases show further that the rule as to prerogative rights applies even where the grant or transfer of title is made from one agency of the Crown to another - from the Provincial Government to the Canadian Government. It applies to a statutory transfer from the Crown in right of the Province (or State) to the Crown in right of the Dominion of Canada (or Commonwealth of Australia). In a subsequent case before the Judicial Committee under the same statute, but relating to fisheries, the expressions of Lord Watson quoted above were restated and affirmed (Attorney-General for British Columbia v. Attorney-General for Canada[68]).

The Esquimalt Case[69], moreover, throws light on another very important aspect of the position - the relation of the statutory grant to the mining laws of the province. It was held that the Mining Acts of British Columbia, enabling the Government to grant "placers'" rights (equivalent to Australian "miners'" rights) to men to mine for gold were still operative to confer on the holders of the placers' rights the right to mine for gold under the land granted to the Dominion. It would be extremely awkward if the New South Wales laws as to gold mining were to be arrested abruptly at the boundary of land sold to or acquired by the Commonwealth. After all, the land acquired still remains part of New South Wales, politically, and subject to New South Wales laws; though not to New South Wales taxation of property (sec. 114 of the Constitution). The numerous lands acquired from New South Wales by the Commonwealth as property do not constitute a series of Commonwealth enclaves, in which New South Wales writs cannot operate or New South Wales police perform their functions. It is only the property in the lands (at most) that passes to the Commonwealth; the pieces of land acquired are not Alsatias for Jack Sheppards.

It is true that even this point has been contested. Under sec. 122 of the Constitution the Parliament may make laws for the government of any territory surrendered by any State and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit; and under sec. 52 of the Constitution the Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to (1) the seat of government of the Commonwealth and all places acquired by the Commonwealth for public purposes. In my opinion, the words "places" acquired by the Commonwealth in sec. 52 do not apply to lands acquired as property under the Lands Acquisition Act; they refer to "places" acquired in the sense of sec. 122, any territories acquired in a political sense. Sec. 122 actually refers to the parliamentary representation of the place acquired. The section of the Constitution relating to the seat of government confirms this opinion (sec. 125); for in that section not only is the territory to be granted to or acquired by the Commonwealth, but the property in the soil is to be vested also. My point is that the Lands Acquisition Act does not deal with the property in royal mines although it deals with the property in land. I do not say that under the Constitution the property in royal mines could not be affected by an appropriate Act under sec. 51 (XXXI.) of the Constitution. Perhaps it may; for in that section the word used is "property" - "the acquisition of property"; but the question does not arise. The present Act has very wide definitions of the words "land," "Crown land," "owner"; but there is nothing in the definitions, or throughout the Act, expressly or necessarily referring to royal mines or to anything but land. It is true that under sec. 16 (1) the land acquired by notification vests in the Commonwealth "freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth"; but full effect can be given to these words by treating them as confined to land, as not including royal mines which are not part of the land or incident thereto. The distinct prerogative right to the royal mines is not touched. It is true that under sec. 16 (2) the notification in the Gazette has the effect of cancelling any "dedication or reservation" to which the Crown land was subject at the date of the notification; but this is not a case of "dedication or reservation." These are technical terms. According to Davidson (Conveyancing, 4th ed., vol. i., p. 96), "an exception must be part of the thing granted, and of a thing in esse at the time of the grant; but a reservation must be of some new thing issuing out of the thing granted. Thus, an exception may be of a house, or close of land comprised in the property granted, or of trees generally, or specified trees; while a reservation is of a rent or a right-of-way." Sec. 17 provides that "upon the publication of the notification in the Gazette, the estate and interest of every person entitled to the land specified in the notification, and the title of the State to any Crown land specified in the notification, shall be taken to have been converted into a claim for compensation"; but the title to the royal mines is not an estate or interest in land, is not included in the title to Crown land. It is true that sec. 62 of the Act enables the Governor-General to "authorize" the grant of a lease or licence to mine for any metals or minerals on any land the property of the Commonwealth. This power is not confined to lands acquired under the Act; but, assuming it to be valid, it does not necessarily apply, and therefore does not apply at all, to royal mines. There are no express words, there is no necessary implication, that royal mines are to pass to the Commonwealth by the Gazette notification. Further, the provision for compensation for the land taken appears to me to be wholly inconsistent with the view that royal mines pass to the Commonwealth as part of the land; for the compensation is to be "estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth" (sec. 27 (2)). Now, the proprietor of a mere estate in fee simple in the land would not be entitled to any royal mines in the land, and would not be entitled to compensation therefor. It is the fair inference that the Commonwealth takes and pays for what the proprietor in fee simple could give, and no more. It would be the extraordinary result of the argument for the Commonwealth that if there were under the land acquired a gold mine as rich as Mount Morgan, to the parties knowledge, and if the Commonwealth acquired it under the Act, the Commonwealth would have only to pay compensation for the value of the land as land held in fee simple, and be entitled to all the gold without paying anything for it. The provision in sec. 27 (3), that "the State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue," does not mean that the political rights over the land taken pass to the Commonwealth; it refers mainly, I think, to the provision of sec. 114 of the Constitution, forbidding the State to tax property of the Commonwealth. Under the Act the State is not to be paid compensation for its loss of taxation, revenue, &c.

The argument on both sides assumes - probably rightly - that the unalienated land in a State is "land the property of a State" within the meaning of the definition of "Crown land" in the Act (sec. 5). Indeed, unless Crown land over which the New South Wales Parliament has power to sell and to appropriate the proceeds is to be treated as "property of the State," there is no other land to which the words "property of the State" can refer. But the exact legal position of the State of New South Wales, as well as of the Province of British Columbia, seems to be not that of owner but rather that of administrator (with power to appropriate the proceeds). For, under the New South Wales Constitution Act (18 & 19 Vict. c. 54, sec. 2), the State Legislature got "the entire management and control of the waste land belonging to the Crown in the said Colony and also the appropriation of the gross proceeds of the sales of any such lands and of all other proceeds and revenues of the same from whatever source arising within the said Colony including all royalties mines and minerals." Having regard to the word "royalties," I do not say that the New South Wales Legislature had not power to sell or lease any subjacent royal mines; but, whatever it sells or leases, it apparently acts as donee of a power. The expressions used by Lord Watson in the British Columbia Case[70] seem to be substantially applicable to New South Wales - that "the title to the public lands ... has all along been, and still is, vested in the Crown; but the right to administer and to dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the Province, before its admission into the federal union." The word "convey" was applied in the agreement and in the Act to the lands the subject thereof; but, "leaving the precious metals out of view for the present, it seems clear that the only conveyance contemplated was a transfer to the Dominion of the Provincial right to manage and settle the lands, and to appropriate their revenues. It was neither intended that the lands should be taken out of the Province, nor that the Dominion Government should occupy the position of a freeholder within the Province"[71]. But the draftsman of the Lands Acquisition Act seems not to have recognized any distinction between the vesting of State land in the Commonwealth and the vesting of private land in the Commonwealth (see sec. 16). This aspect of the subject, however, has not been argued.

For these reasons I am of opinion that the Commonwealth has not acquired the royal metals in the lands at Stockton or at Kenilworth (pars. 2 to 5); but that it has acquired any other minerals - the ordinary minerals - under these lands - whatever "acquired" means.

Question 1 (c) (pars. 6 to 11). - The Richmond land was alienated in fee simple from the Crown on 1st May 1849, and was compulsorily acquired by the Commonwealth from one Way, who was then registered as the proprietor of an estate in fee simple subject to the "reservations" (sic) of "all mines of gold of silver and of coals," of "power to resume any part of the said land for public purposes," of "power to make and conduct through the said land drains and sewers deemed expedient," of "a quit rent of £2 16s. 6d. per annum for ever."

The Pennant Hills land was alienated in fee simple from the Crown on 30th June 1823, and was compulsorily acquired by the Commonwealth from Murray and others who held title under the old law of conveyancing. The grant in fee simple was subject to reservations in favour of the Crown - power to take timber for naval purposes and power to take part or parts of the land for highway or highways.

For the reasons which I have stated in my answer to question 1 (b), I think that any royal metals contained in either of these lands did not pass to the grantees of the land, or through their successors in title to the Commonwealth; but this question is not asked. The only question asked is as to the so-called "reservations or conditions."

In my opinion, sec. 16 (1) of the Act applies; so that the land described in the notifications became vested in the Commonwealth "freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth." The Commonwealth takes the corporeal land notified free from all interests held by the Crown (in right of New South Wales) or by others, in the land or over it or in connection with it.

The Commonwealth, as to this land, is free from any outside control or restriction. I think that the words of sec. 16 (1), "freed" &c., should be taken in the widest sense. Sec. 17 provides that upon the publication of the notification in the Gazette "the estate and interest of every person entitled to the land specified in the notification ... shall be taken to have been converted into a claim for compensation"; and in view of the wide definition of the word in sec. 5 it is not doing violence to the words of the section to say that the word in sec. 17 includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over in or in connection with that land. "Every person" includes the King, as a body politic and a corporation sole; and the interest of the Crown as owner of any easement over the land specified, or of any interest in or over or in connection with the land specified, is, in my opinion, converted into a claim for compensation. In brief, I regard sec. 17 as converting into a claim for compensation not only the interest of the owner of the land in the ordinary sense, but the interest of everyone who has an interest, right or privilege in or over the land specified. It has been so held under the English Lands Clauses Consolidation Act, under similar words. A mere power to sink pits for coal in land (not demised) was held to be an interest in that land for the purpose of compensation (In re Masters and Great Western Railway[72]; and see Duke of Bedford v. Dawson[73]; R. v. St. Luke's, Chelsea[74]).

But it was suggested in the course of the argument that there is no provision for compensation to be paid to the owners of any outside interests in or over or in connection with the land; and that if there is no provision for such compensation, the acquisition of the lands under the Act is not "on just terms" within the meaning of the Constitution (sec. 51 (XXXI.)), and that therefore the Act is unconstitutional, invalid - at all events so far as regards the outside interests. No reference to the Constitution, or to the limits of the powers of the Commonwealth Parliament, appears in the special case; and I am strongly disposed to think that the case assumes the Act to be valid, and that it is our duty to answer the questions on that assumption. There is a wholesome rule adopted in the United States and followed here, that the Court should not pronounce on the validity of an Act of Parliament unless it becomes absolutely necessary to do so for the determination of the issues presented; and it may be that a decision against the validity of this Act will cause dire confusion as to past transactions. But these considerations as to our duty have not been argued.

If, however, we are to decide the matter, I am of opinion that the Act does, lamely but effectually, provide for compensation for these interests destroyed by the operation of the Act. Sec. 26 provides that "where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act." "Owner" may be read as applying to "owners" under the familiar principle that the singular may be read as including the plural (Acts Interpretation Act 1901, sec. 23). Indeed, in sec. 18, where the distribution of copies of the notification makes the singular noun inappropriate, the expression "owners of the land or such of them as can with reasonable diligence be ascertained" is actually used; but in sub-sec. 2 the Act naturally reverts to the word "owner." Then under sec. 5, the interpretation section, the word "owner" includes, with respect to the land, "any person who under this Act is enabled to sell or convey the land to the Commonwealth"; and "land" includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interests appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (sec. 61 (1) (a)); and this right would be anomalous if such owners were not also entitled to compensation. Then, although there is no express provision that lessees of land acquired are to be compensated for their loss in addition to the person seised in fee simple, sec. 30, from its form of language, assumes that such lessees are to be compensated: "If any person having a greater interest than as a tenant at will of any land acquired by compulsory process makes a claim for compensation in respect of any unexpired term or interest under any lease" the Attorney-General may require production of the lease. Sec. 32 is thus expressed: "(1) Any State or person claiming to be entitled to compensation under this Act may make a claim for compensation." If the only person who can claim for compensation is the "owner" in the popular sense - the man who has the fee simple - it is curious that the word "owner" as used in sec. 26 is not used here also. Again, there is the principle laid down in Commissioner of Public Works (Cape Colony) v. Logan[75] that the Courts, in interpreting such an Act, should presume, unless the contrary intention is expressed in unequivocal terms, that Parliament did not intend to take away a man's property without compensation.

My opinion is that question 1 (c) should be answered in the affirmative as to all the lands referred to therein.

Question 1 (a) (pars. 12 to 15). - The Crown land at Wollongong was, at the time that the Constitution came into force, used by the New South Wales Department of Naval and Military Defence exclusively in connection with that Department - for a fort; this Department was transferred to the Commonwealth by proclamation of 1st March 1901; and, under sec. 85 of the Constitution, "all property of the State, of any kind, used exclusively in connection with the Department," became ipso facto vested in the Commonwealth. The word here used is "property" - a wider term than "land"; and I assume, as the parties assume, in favour of the Commonwealth, that any royal mines under the New South Wales Crown land as well as the Crown land itself may be treated as "property of the State." I shall assume also, in favour of the Commonwealth, that if there were no royal metals under the land, the whole land from the surface downwards to the centre, the whole conical figure, should be treated as "used exclusively" in connection with the Department; for there was no other use of any of the subjacent strata at the time (see Hooper v. Bourne[76]; Clark v. Elphinstone[77]; Midland Railway Co. v. Wright[78]). The use of the surface is probably, under such circumstances, to be held as use of the whole soil beneath. The word "used" implies more than "possessed"; but it is clear that if a person having title to land is in possession of the surface he is to be treated as in possession of the land to the centre of the earth, if no one else is in actual possession of subjacent strata. There is constructive possession of the whole because it is in accordance with the title. But constructive possession ends where the title ends; and if the title ends at a mine reserved by grant or lease, the owner of the surface is not to be treated as being in constructive possession of the mine (Richard Cotton's Case[79]; Hodgkinson v. Fletcher[80]; McDonnell v. McKinty[81]; Smith v. Lloyd[82]; Keyse v. Powell[83]; Earl of Dartmouth v. Spittle[84]; Low Moor Co. v. Stanley Coal Co.[85]; Lord Advocate v. Wemyss[86]; Glyn v. Howell[87]). Therefore, if (as I have already suggested) the title to the land is distinct from the title to the royal mines, possession of the surface of the land cannot be treated as possession of the royal mine; and, a fortiori, use of the surface cannot be treated as use of the royal mines; the royal mine (if any) was not "used exclusively" in connection with the State Department on 1st March 1901; and the property in the mines is not vested in the Commonwealth under sec. 85. The very words of the special case, indeed, limit the allegation of exclusive possession to the "land" - "certain property of the said State to wit the land described" &c. (pars. 13, 15); and "land" does not include royal mines. The rule is very strict and applies to treasure trove (the King's by prerogative) found embedded in land as well as to royal mines. In Attorney-General v. Trustees of the British Museum[88] it was held that treasure trove did not pass by a royal grant of land which included, in exhaustive enumeration, "the whole ground or soil, ... waived chattels, ... rights, ... franchises, ... privileges, profits, commodities, advantages, emoluments, and hereditaments whatsoever, with all their appurtenances."

The fact that the royal mines give, or may give, certain support to the surface may give certain right to support against the King, or other owner of the royal metals; but it does not alter the ownership.

My answer is No, to question 1 (a) as to royal metals. The other minerals pass as of course as incidents of the land.

Question 2 is as to the duties of the Registrar-General - is he to give effect to the notifications under the Lands Acquisition Act, entering them in the register as if they were grants or transfers?

So far as regards the lands already alienated from the Crown acquired from the registered proprietors under the Real Property Act 1900 (numbered 3 in writ, referred to in pars. 6 to 8 of special case). I feel little difficulty. The notification operates as a transfer of the fee simple from Way to the Commonwealth, and the transfer should be registered; and the title should not be subject to any incumbrances, easements, reservations or other interests (sec. 16 of the Lands Acquisition Act).

So far as regards the land already alienated, acquired from Murray and others as seised in fee simple under the old law of conveyancing (numbered 4 (a) and (b), in the writ, referred to in par. 9 of the special case), I cannot find anything in either Act obliging the Registrar to treat a conveyance under the old law as if it were a transfer of land under the Real Property Act; and the notification does not operate as anything more than such a conveyance. At present, the lands under the old law are not within the scope of the Real Property Act at all. Under the 13th section of that Act "all waste lands and all lands set apart for public purposes remaining unalienated from the Crown at the passing of this Act" (1900) "shall, when alienated in fee, be subject to the provisions of this Act"; and "the grants of such land shall be in duplicate, and every such grant ... shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed"; that is to say, by binding up the duplicate of the grant in the register, &c. (sec. 32). Under the 14th section of the same Act these lands, having been alienated before 1863, can be brought under the Act; but they have not been so brought as yet; and sec. 20 of the Lands Acquisition Act does not oblige the Registrar to deal with and give effect to the notification as if it were more than a conveyance under the old law; and if it were a conveyance under the old law, the Registrar should refuse to treat it as a transfer (Real Property Act, sec. 39).

In my opinion, the question is answered as to these lands by saying that the Registrar is not bound to deal with and give effect to the notification as if it were a transfer under the Act.

The question is more difficult as to lands not previously alienated from the Crown, but acquired from the Crown under the Lands Acquisition Act (numbered 1 and 2 in writ, referred to in pars. 2 and 4 of the special case). Sec. 13 of the Real Property Act provides (as set out above) that all grants shall be in duplicate containing a diagram on a prescribed scale; and sec. 32 provides that the duplicate shall be bound up in the register. These provisions do not fit the case of a notification under the Lands Acquisition Act. An effort has been made to meet the difficulty by sec. 20 of the Act. This directs that the Registrar shall, if a certified copy of the notification in the Gazette be lodged with him, register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant duly executed. But a grant for what estate? The Act does not say. Assuming that the intention is that the Crown in right of the Commonwealth is to take just the same kind of property as the Crown in right of the State had at the time of the notification - the Crown still retaining its allodial property, but subject henceforth to the administration of its Commonwealth agency instead of its State agency - the Crown in right of the Commonwealth could not, I think, convey the land to a purchaser except for an estate known to the law - and the highest estate known to the law is a fee simple. The Commonwealth may think well to dispose of the land as superfluous (sec. 63). It is not easy to see why the Federal Parliament should be so anxious to get the Commonwealth, or the Crown in right of the Commonwealth, registered itself as allodial owner, if it can get a grantee from the Crown registered for an estate in fee simple or other estate; but, apparently, under sec. 20 the notification is to be registered as if it were a "grant."

But it has been suggested that sec. 20 is invalid - that it is an encroachment by the Federal Parliament on the reserved powers of the States. This point is not referred to in the questions asked, or in the contentions of the parties as stated; though it might be logically within the scope of any final answer to question 2. I am not at all satisfied that it is not our duty, for the purpose of this case, to assume, as the special case seems to assume, that the whole of the Lands Acquisition Act is valid. For aught that we know, any decision for invalidity may gravely affect titles heretofore obtained in good faith. But, assuming that the point of invalidity of the section is open, I am not convinced that it can be sustained. The Registrar is, in effect, told by the Commonwealth Act that, for the purposes of Commonwealth land acquired by the Commonwealth under the Constitution (sec. 51 (XXXI.)), he must open a new page in the register by entering the Gazette notification. There is really nothing alarming in such a process - no arrogant interference with the State's system of registration. The process is confined to Commonwealth land so acquired; and it may assist the Commonwealth, in selling any superfluous land, to reassure purchasers as to their title. The confidence which the public have in a title "under the Act," acquired from a vendor who has title "under the Act," is such as often to induce people to bid higher. If this question must be answered, I must say, in the absence of full argument on the subject, that at present I think sec. 20 is valid under the powers contained in sec. 51 of the Constitution - to make laws "with respect to ... the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws" (pl. xxxi.), and "with respect to ... matters incidental" to the powers of the Federal Parliament to make laws under the placitum (pl. xxxix.).

It would follow from this position, if my opinion as to the effect of sec. 16 of the Lands Acquisition Act is right, that this land should appear in the register as belonging to the Crown in right of the Commonwealth, freed from all reservations, interests, &c.

Question 3. - In my opinion, under present circumstances and on the facts as stated, the Registrar is not bound to issue to the Commonwealth a certificate of title as to any of the lands acquired under the Lands Acquisition Act except the Richmond land (numbered 3 in the writ, referred to in par. 6 of the case stated). That title is already under the Real Property Act. No question is asked as to the nature of the title which the certificate should show.

As to the lands which vested in the Commonwealth under sec. 85 of the Constitution (numbered 5 and 6 in the writ, referred to in pars. 13 and 15 of the case stated), they vested in the Commonwealth by the operation of the Constitution - an Imperial Act - without any deed of grant or other document. The Constitution does not say for what estate they vest; but having regard to the words used in sec. 85 and the difficulties of treating the Crown as tenant of itself, even in another capacity, I think that the Crown in right of the Commonwealth took just the same full property and rights as to the land, that the Crown in right of the State had before the transfer of the Department. The Crown remains the owner, but deals with the land under Commonwealth law instead of under State law. Under sec. 64 of the Lands Acquisition Act any land that by virtue of sec. 85 of the Constitution become vested in the Commonwealth, shall for the purposes of the said Act be deemed to have been acquired thereunder, and to be vested in the Commonwealth as if acquired thereunder. Therefore, if sec. 20 is valid, as at present I think it is, the Commonwealth is entitled to have this land, vested under sec. 85 (lands only, not royal mines), entered in the register as vested in the Crown in right of the Commonwealth. This does not mean that it is entitled, on the facts stated, to demand a certificate of title.

My answer to question 3 is that the Commonwealth is not entitled to demand a certificate of title to any of the lands except the Richmond land; and that it is entitled to a clean certificate of title to that land without any reservations or exceptions noted thereon.

Questions stated answered as follows: - (1) All the lands in the said question referred to including royal and other metals therein vest in the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales, subject to compensation provided pursuant to the Constitution, sec. 85, and by the Lands Acquisition Act respectively. Alternative questions (1) (a), (b) and (c) - The Court in view of the answer to 1 does not deem it necessary to answer these questions specifically. (2) No. (3) No. Declare that the lands in the writ of summons mentioned including royal and other metals therein vest in the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales, subject to compensation provided pursuant to the Constitution and by the Lands Acquisition Acts respectively. Declare that the Commonwealth is not entitled to a certificate of title under the Real Property Act 1900 N.S.W. to the said parcels of land in the writ of summons mentioned.

Solicitor for the plaintiff, Gordon H. Castle , Crown Solicitor for the Commonwealth.

Solicitor for the defendants, J. V. Tillett , Crown Solicitor for New South Wales.

Solicitor for the intervener, E. J. D. Guinness , Crown Solicitor for Victoria.

[1] (1847) 2 N.S.W. S.C.R. (App.), 30.

[3] (1888-89) 14 App. Cas., at p. 302.

[4] (1888-89) 14 App. Cas., at pp. 300-302.

[5] (1879-80) 13 Ch. D., 607, at p. 612.

[6] [1891] VicLawRp 50; (1891) 17 V.L.R., 203; 12 A.L.T., 194.

[7] [1918] HCA 44; (1918) 25 C.L.R., 325, at p. 340.

[8] (1920) A.C., 691, at p. 709; [1920] UKPCHCA 1; 28 C.L.R., 106, at p. 120.

[10] (1888-89) 14 App. Cas., 295.

[12] (1568) 1 Plowd., 310, at pp. 336, 336a.

[13] (1919) A.C., 468, at p. 480.

[14] [1859] EngR 257; (1859) 5 C.B. (N.S.), 717, at p. 728.

[15] (1879) 12 Ch. D., 261, at p. 267.

[16] (1876) 1 App. Cas., 762, at p. 767.

[17] (1876) 1 App. Cas., at p. 769.

[18] (1876) 1 App. Cas., at p. 772.

[19] [1902] UKHL 1; (1902) A.C., 157.

[20] (1888-89) 14 App. Cas., at p. 302.

[21] (1905) 1 Ch., 406, at p. 411.

[23] (1914) A.C., 197, at p. 208.

[25] (1888-89) 14 App. Cas., at p. 301.

[26] (1888-89) 14 App. Cas., at p. 302.

[27] (1888-89) 14 App. Cas., at p. 303.

[28] (1888-89) 14 App. Cas., at p. 304.

[31] (1888-89) 14 App. Cas., 295.

[32] (1888) 13 App. Cas., 657, at p. 675.

[33] (1888) 13 App. Cas., at p. 679.

[34] (1888) 13 App. Cas., at p. 682.

[36] (1904) A.C., 466, at p. 474.

[38] [1920] HCA 54; (1920) 28 C.L.R., 129.

[39] (1892) A.C., 437, at p. 441.

[40] (1899) A.C., 99, at pp. 105-106.

[41] (1919) 2 Ch., 197, at pp. 216-217.

[44] [1860] EngR 892; (1860) 8 H.L.C., 348, at p. 360.

[45] (1920) 1 Ch., 130, at p. 149.

[46] (1849) 14 Q.B., at pp. 910, 912.

[47] [1897] USSC 142; (1897) 167 U.S., 518.

[49] (1921) 1 A.C., 401, particularly at p. 409.

[50] (1921) 2 A.C., 399, at p. 403.

[51] (1921) 2 A.C., 426, at p. 435.

[52] (1916) 2 A.C., 569, at p. 574.

[54] (1883) 9 App. Cas., 61, particularly at p. 74.

[55] (1906) A.C., 286, at p. 289.

[56] (1919) 48 D.L.R., 287, at p. 288.

[58] (1568) 1 Plowd., at p. 336a.

[59] (1888-89) 14 App. Cas., at pp. 301-302.

[63] (1615) 11 Rep., 66b, at p. 74b.

[64] (1877) 2 App. Cas., at p. 167.

[65] (1888-89) 14 App. Cas., at p. 302.

[66] (1568) 1 Plowd., at p. 336a.

[68] (1914) A.C., 153, at p. 165.

[70] (1888-89) 14 App. Cas., at p. 301.

[71] (1888-89) 14 App. Cas., at pp. 301-302.

[74] (1871) L.R. 6 Q.B., 572; aff. (1871) L.R. 7 Q.B., 148.

[82] [1854] EngR 217; (1854) 23 L.J. Ex., 194.