New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

Issue 1: Land vested in Her Majesty 18Understandably, the Land Council relies upon the fact that the "State of New South Wales" was the registered proprietor of Lot 7016 under the provisions of the Real Property Act at the date of the Land Claim. The nomination of the State as the registered proprietor had the consequence that, for the purpose of s 36(1) of the Land Rights Act, the land was vested in Her Majesty. 19In Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223, Bannon J was required to determine whether land was vested in Her Majesty for the purpose of the Land Rights Act where the "State of New South Wales" was recorded as the registered proprietor under the Real Property Act. When addressing that issue, his Honour said (at 13): "Obviously the subject land is not vested in the land mass known as New South Wales or in its legislature. In my opinion, the registered proprietor is the Queen, the head of the government of New South Wales. I do not consider the vesting of the property under the title 'State of New South Wales' has the effect of vesting the property in a Minister or a statutory corporation on behalf of the Crown." The effect of his Honour's conclusion was not disturbed on appeal (Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 per Cole JA at 461 D and Beazley JA at 472 E-G). 20The Minister accepts that if the Register under the Real Property Act correctly records the registered proprietor of Lot 7016 at the date of the Land Claim, then it was vested in Her Majesty for the purpose of s 36(1) of the Land Rights Act. However, he disputes that the Register does correctly record the entity in whom the fee simple of the Lot was vested at that date. 21Although acknowledging that "the Torrens System constitutes title by registration" (Breskvar v Wall [1971] HCA 70; 126 CLR 376 at 385), the Minister submits that s 42 of the Real Property Act is, in the present case, "ousted". That occurs, so it is submitted, by operation of s 14(1) of the Commons Management Act. 22As further developed, the submission is that the provisions of s 14(1) have the effect that the Boggabri Common Trust held the estate in fee simple in Lot 7016 at the date of the Land Claim. While title was so held, that Lot was not "Crown land" within the meaning of the Crown Lands Act 1989 (NSW). The expression "Crown land" is defined in s 3 of the Crown Lands Act as follows: "Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) ... ". Dedication of land as a common is dedication within the meaning of paragraph (a) of that definition. 23The Minister further submits that the provisions of s 14(2) of the Commons Management Act "dovetail" with the definition of "Crown land" in s 3 of the Crown Lands Act. Title to land dedicated as a common is vested in the common trust until the common is revoked. If dedication of the common is revoked "the estate in fee simple in the land that was subject to the common reverts to the Crown and the land reverts to being Crown land" (Respondent's outline submissions at [19]). 24Expressed succinctly, the Minister submits that s 14 "trumps the usual effect of registration because of the ouster of s 42 of the Real Property Act" (submissions at [21]). Initially, further support for the submission was said to be found in subsection (3) of s 14 of the Commons Management Act which provides: "(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900." 25However, it was later acknowledged that subsection (3) was added to s 14 by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW). As is obvious, that legislation was enacted after the date of the Land Claim and for that reason is not relevant for present purposes: the amending Act is not expressed to have retrospective effect. 26Support for the Minister's contention that s 42 of the Real Property Act was "ousted" is also said to arise because the later enacted Commons Management Act "must be given effect at the expense of the earlier Act" (submissions at [20]). Judgments of the High Court in South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; 62 CLR 603 (Latham CJ at 616 and Dixon J at 625) are cited in support of that submission. Application of the principle of interpretation there invoked turns upon inconsistency between the statutory provisions being considered. As Dixon J observed in that case (at 625): "But, unless it is found impossible to reconcile the later statute with sec.6 [of the earlier Act], there is no room for the conclusion that the later Act must be regarded as meaning to operate upon land under the earlier Act and to do so inconsistently therewith." 27For reasons that follow, I am not persuaded that there is inconsistency between the provisions of s 42 of the Real Property Act and s 14 of the Commons Management Act. I do not accept that s 14 operates in the manner for which the Minister contends. 28Consideration of s 14(1) of the Commons Management Act must commence with its text. The opening words "[f]or the purposes of this Act" are words of limitation. It cannot be assumed that the words have no work to do. Had it been the legislative intent that the interest vested in a trust of common land be an estate in fee simple for any purpose, the opening words of the subsection would be unnecessary. 29The concluding words of the subsection "unless it already has such an estate by virtue of some other enactment or instrument" support the conclusion just expressed. Those words acknowledge that there may be some other basis upon which an estate in fee simple is held by the trust, for example, by conveyance, transfer or grant effected otherwise than by operation of the subsection. However, unless an estate in fee simple has been acquired "independently", the title that is vested "by virtue of [the] subsection" is qualified as being for the purposes of the Act. It is not contended by the Minister that the interest of the trust in Lot 7016 was created otherwise than by virtue of s 14(1). 30Provisions similar to, although not identical with, s 14 of the Commons Management Act have been found in Crown lands legislation for many years. Part 3B of the Crown Lands Consolidation Act 1913 (now repealed) was headed "Management of and dealings with dedicated or reserved lands and certain other lands". Section 37X (a section within Pt 3B), relevantly provided: "Estate of trustees. 37X(1) Except to the extent that the trustees of a reserve have an estate in fee simple in the reserve apart from this section, the trustees shall, for the purposes only of this Part and of any by-law, be deemed to have that estate in the reserve." 31Part 5 of the current Crown Lands Act is headed "Dedication and reservation of land". Section 100, found in Pt 5, relevantly provides: "100 Estate of trust (1) For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate. (2) The reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part. (3) Revocation of the dedication or reservation of the whole or part of a reserve divests the reserve trust of any estate in the land affected by the revocation." 32The consequence for an Aboriginal land claim under the Land Rights Act, where the land in question was vested in a trustee pursuant to s 100 of the Crown Lands Act, was addressed by Bannon J in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 337. Having noted that s 100(1) of the Crown Lands Act was in substantially the same terms as s 37X(1) of the Crown Lands Consolidation Act, Bannon J said (at 340-341): "Both under the Crown Lands Consolidation Act and the Crown Lands Act, the vesting of the land in the trustees is for limited purposes only under those Acts, and I have reached the conclusion that the land claimed was, at the relevant date, vested in Her Majesty for the purposes of s 36(1) of the Act." 33The limiting operation of the opening words of s 100(1) of the Crown Lands Act was considered by Pearlman J in Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75. Her Honour was there determining a claim for compensation made under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). In seeking to apply the provisions of the that Act, it was necessary for her Honour to determine whether the Reserve Trust held an "interest in land", as that expression was defined in that Act, the first limb of which was the holding of "a legal or equitable estate or interest in the land". In addressing that aspect of the case, her Honour said (at 79): "Section 100 of the Crown Lands Act provides that, for the purposes only of Pt 5 of that Act, a reserve trust has an estate in fee simple in the reserve of which it is the trustee. In the respondent's contention, which I think is patently correct, the applicant does not have an estate in fee simple in Prince Alfred Park for the purpose of any other Act, and in particular, for the purpose of the Just Terms Act. It follows that it does not have an estate in fee simple for the purpose of limb (a) of the definition of 'interest in land'." 34Section 100 of the Crown Lands Act was also considered by Sheahan J in Ashfield Municipal Council v Roads and Traffic Authority of New South Wales [2000] NSWLEC 117, another case requiring the determination of compensation under the Land Acquisition (Just Terms Compensation) Act. Having made reference to the provisions of s 100(1), his Honour said (at [49]): "49 I accept Mr Ayling's contention that this means that the Crown holds the fee simple of the trust lands, but vests in the Council, for the purposes of the Council's exercise of its functions as trustee or trust manager under the CLA, those incidents of the fee simple which the Council needs in order to achieve those purposes." 35In Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224, Barrett J (as his Honour then was) was required to determine a claim of title by adverse possession to an area of land forming part of an adjoining public park. The land in question was part of a larger parcel of land that had been compulsorily acquired by a State instrumentality in 1886. The land was acquired for a public park. Following acquisition, Waverley Council was appointed as trustee of the land. By operation of a number of legislative provisions following its appointment, that Council came to hold the land as a reserve trust under the provisions of s 100 of the Crown Lands Act. In the context of considering the operation of that section, his Honour observed (at [20]): "The Act of 1989 thus follows the pattern of earlier legislation. It enacts that a reserve trust has an estate in fee simple in the relevant reserve for the purposes of Part 5 of that Act itself and a by-law under that Part. The statute is not the source of an estate in fee simple for any other purpose, with the result that such an estate cannot be said to exist when some different statute or other legal context is under consideration. The statutory fiction, if it may be so described, does not exist for all purposes of the Crown Lands Act 1989 itself." 36The Minister submits that the judicial exegesis given to s 100 of the Crown Lands Act should not be applied to s 14(1) of the Commons Management Act. He submits that while the latter subsection is expressed to apply for the purpose of the Act as a whole, the respective provisions of the Crown lands legislation that are addressed in the decided cases are expressly confined in their operation "for the purpose(s) only" of the Part of the Act in which the section is found. Emphasis is placed upon the use of the adverb "only" in s 100(1) of the Crown Lands Act and its absence from s 14(1) of the Commons Management Act. 37I do not accept that the distinction drawn by the Minister between the respective statutory provisions reflects a difference of any relevant consequence. The Crown Lands Act addresses a number of disparate topics pertaining to Crown land. It is therefore understandable that in addressing the separate topic of dedication and reservation of areas of Crown land (Part 5) and making provision for reserve trusts in respect of land so dedicated or reserved, the exercise of power by the reserve trust, including that which would otherwise be consequent upon the grant of an estate in fee simple, would be confined to the exercise of the powers conferred by that Part of the Act. Other parts of the Act address different powers to deal with Crown land. For example, by s 76 certain Crown land may be vested in a Local Government Act council "in fee simple", with potentially different consequences for such vesting from those afforded by the vesting of land in a reserve trust under s 100: s 77 of the Crown Lands Act demonstrates that proposition. Thus, the necessity to confine the operation of s 100 to Pt 5, a limitation emphasised by use of the adverb "only" in subsection (1) of that section. 38However, the fundamental flaw in the Minister's submission seeking to distinguish the cases directed to s 100 of the Crown Lands Act is that it fails to address or assign any legislative purpose to the opening words of s 14(1) of the Commons Management Act. As I have earlier indicated, had it been the legislative intent to invest title in a common trust for any purpose, transcending the performance of functions under the Commons Management Act, such that the title held good for the purpose of any legislative enactment, the opening words "[f]or the purposes of this Act" would be superfluous. 39Beyond the comparison between the terms in which each of s 14 of the Commons Management Act and s 100 of the Crown Lands Act are expressed, there are similarities that are apparent between the two Acts operating at a broader level, indicating a legislative intent that they should operate to similar effect. Both Acts deal with land reserved or dedicated under Crown lands legislation and establish a trust for the management of that land. As the Long title to the Commons Management Act indicates, the purpose of that Act is to provide for the management of commons through the statutory vehicle of a trust. 40By s 8(1) of the Commons Management Act, a trust is charged with responsibility for the "care, control and management" of the common. So also, by s 92(5) of the Crown Lands Act, a reserve trust is charged with the "care, control and management" of any reserve of which it is appointed trustee. 41Just as s 100(3) of the Crown Lands Act divests a reserve trust of its estate in land if the reservation or dedication of that land is revoked, so also by s 14(2) of the Commons Management Act a common trust "ceases to have" the estate in fee simple vested in it by subsection (1) of the same section if the common is revoked. Those provisions are significant. They are demonstrative of a legislative intent that the land title held by the trust is in aid of its management function rather than reflecting an intent to change the underlying title to the land. 42Section 16 of the Commons Management Act constrains the power of a common trust to enter into any "transaction" with respect to the land vested in it. A "transaction" is defined in s 3 to include a transfer, conveyance, lease or grant of any licence in respect of land. The constraints imposed by s 16 are, in substance, to the same effect as ss 102, 103 and 104 of the Crown Lands Act, as those provisions relate to land vested in a reserve trust. As the Land Council submits, the fact that the common trust may, in accordance with s 16, sell land that is the subject of the trust does not manifest an intention to require a change in title in favour of the trust enabling it so to do. By analogy, it could not be suggested that the power of the Minister to sell Crown land pursuant to s 34 of the Crown Lands Act is not able to be exercised unless title to land of which the State of New South Wales is the registered proprietor is first transferred to the Minister. 43The close similarities between the provisions of Pt 5 of the Crown Lands Act, addressing the creation and management of reserves under that Part, and the provisions of the Commons Management Act addressing the management of Commons suggests to me that the jurisprudence directed to s 100 of the Crown Lands Act is appropriate to be applied to the operation of s 14(1) of the Commons Management Act. That is, the latter section creates a "statutory fiction" (Townsend) of title that does not impact upon the real or underlying title to common land. 44In response to any such conclusion, the Minister relies upon the decision of the Court of Appeal in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12; 54 NSWLR 15. A claim made under s 36(3) of the Land Rights Act had been refused by the Minister on the ground that at the date of claim the land was lawfully used and occupied by Eurobodalla Shire Council for public recreation and camping. While the Land Council appealed to this Court pursuant to s 36(6) of the Land Rights Act, Eurobodalla Council commenced separate proceedings in the Supreme Court seeking a declaration that the land was not vested in Her Majesty and therefore did not fall within the definition of claimable Crown lands in s 36(1) of the Land Rights Act. The Council also sought a declaration that it held the estate in fee simple in the land for which the claim was made. The basis for that claim will be explained shortly. However, it was from orders made in favour of the Council in those proceedings that the Land Council appealed to the Court of Appeal. 45The decision on appeal affirmed the decision at first instance to the effect that the land in question (lot 8) was not vested in Her Majesty and that the estate in fee simple was vested in the Council. The leading judgment was delivered by Giles JA (Hodgson JA and Rolfe AJA agreeing). At [29] his Honour said: "Even if lot 8 had initially been vested in the shire council as a public reserve, in my opinion it was not thereby in a position akin to that of the municipal authorities earlier mentioned. The right to exercise every imaginable act of ownership may be circumscribed, by common law and by statute, while leaving the landowner's interest an estate in fee simple. But I see no reason to conclude that the vesting in the shire council of an estate in fee simple in lot 8, upon resumption and purportedly again upon the registration of deposited plan 258299, passed only powers of control and management and such proprietary interest as was necessary for the shire council's functions." 46Giles JA continued at [30]: "Unlike the cases on which the land council relied, what was vested in the shire council was unequivocally an estate in fee simple. It was not a collection of rights to be found only in, and limited by, a purpose or function ...". 47Despite their apparent attraction, the observations there made by his Honour do not, in the circumstances of this case, aid the Minister. Lot 8 was part of a larger area of land resumed by the Council pursuant to s 536 of the Local Government Act 1919 (now repealed). By dint of s 536A of that Act, upon publication of the resumption notice in the Gazette the resumed land was "vested in the Council for an estate in fee simple in possession freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights of way, or easements whatsoever." The land so acquired was subsequently subdivided by the Council. It was by that subdivision that lot 8 was created as a separate lot and recorded on the deposited plan as being "dedicated as a public reserve". Upon registration of the deposited plan a certificate of title issued recording the Council as the registered proprietor. It is by reference to the title so recorded that Giles JA referred to the right of the holder of an estate in fee simple as a right "to exercise every imaginable act of ownership",applying the observations of the plurality in Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96 at [43], a decision relied upon by the Minister in the present case. 48After the deposited plan had been registered and the Council recorded as the proprietor of lot 8, a declaration was made by the Minister under s 25A of the Crown Lands Consolidation Act declaring lot 8, together with other lands, to be dealt with "as if they had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act, 1913." Wrongly, as the Court determined, the Registrar-General had then amended the Register by deleting the Council as registered proprietor and recording that the land had "become Crown land within the meaning of the Crown Lands Acts". 49The circumstances in which lot 8 came to be vested in the Council is significant. There can be no question that in acquiring the land by compulsory process under the Local Government Act, without any overlay of Crown lands legislation, the Council was vested with an "unequivocal" estate in fee simple in lot 8. It was not an estate that was limited "by purpose or function". Moreover, as Giles JA determined at [34], the effect of the declaration under s 25A of the Crown Lands Consolidation Act did not purport to alter the ownership of the land but determined only the manner in which the Council could deal with the land (see also at [28]). 50The position that there pertained is in marked contrast to the ownership of Lot 7016. That Lot was never acquired by the Boggabri Common Trust. It held an estate in fee simple in that Lot only by virtue of s 14(1) of the Commons Management Act. The Common was declared as such under Crown lands legislation. Unlike the vesting of the estate in fee simple in Mogo, or the right conferred by the Crown grant in Fejo, the collection of rights vested in the Boggabri Common Trust are "found only in, and limited by, a purpose or function" provided for in the Commons Management Act. While s 14(1) acknowledges the possibility of an estate being vested in a common trust by "some other enactment or instrument", thereby contemplating a circumstance of the kind that occurred in Mogo, no other "enactment or instrument" is identified in the present case in order to sustain the title of the Common Trust. 51The provisions of s 14(1) of the Commons Management Act, read in the context of the decisions to which I have earlier referred, are consistent with a principle that while a statute may vest land in fee simple in a public body, that vesting may only be sufficient to facilitate the performance of those statutory functions imposed by the statute under which the vesting of that estate occurs. That limited operation of a statutory provision of the kind found in s 14(1) was the subject of observations by Williams J in City of Perth v Crystal Park Ltd [1940] HCA 35; 64 CLR 153 where his Honour said (at 168): "The word 'vest' is a word of elastic import, and a declaration that lands are vested in a public body for public purposes may 'pass only such powers of control and management and such proprietary interests as may be necessary to enable that body to discharge its public functions effectively' ...". That part of the passage in his Honour's observations that appear by way of quotation are taken from the advice of the Privy Council in Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 at 409 (cited with approval by Gummow J in Yanner v Eaton [1999] HCA 53; 201 CLR 351 at [94]). In the present context, I see no reason to differentiate between the "vesting" of an estate in fee simple and the holding of such an estate, as s 14(1) provides. 52For these reasons, I conclude that the statutory vesting or holding of an estate in fee simple in the Boggabri Common Trust pursuant to s 14(1) of the Commons Management Act does not impinge upon the underlying title to Lot 7016 nor do those statutory provisions result in a change in title to the land to which they relate. That title remains with Her Majesty. So understood, s 14(1) does not operate in a way that is inconsistent with or contradictory of the provisions of s 42 of the Real Property Act. 53For the purpose of s 36(1) of the Land Rights Act, Lot 7016 was, at the date of ALC 16751, vested in Her Majesty. Section 14(1) of the Commons Management Act does not operate to defeat that title.

Issue 3: Collateral challenge to the Interim Licence 153Although the validity of the Interim Licence dated 25 July 2008 has been addressed at length by me, as it was by the parties at the hearing, the Minister submitted that a determination of invalidity was not available in these proceedings. He submitted that such a determination could only be made in separate proceedings, commenced by the Land Council, seeking judicial review of the determination to grant the Interim Licence. 154The Minister's submission is directed to a collateral challenge in the sense used by McHugh J in Ousley v R [1997] HCA 49; 192 CLR 69. There, his Honour said (at 98-99, omitting citation of authority): "A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision ... However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term 'collateral challenge' is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues ... ". 155The argument of the Minister is said to be directed to the observance of correct procedures when collateral challenge is made in an appeal under s 36(6) of the Land Rights Act. In the absence of clear statutory authority, there should be no abrogation of the rule that a party with an interest in a decision or authorisation that is being challenged in such proceedings should be afforded the opportunity to be heard before that challenge is determined. Yet, so it is acknowledged, the Court of Appeal has determined that the only permissible parties to an appeal under s 36(6) are the claimant Land Council and the Minister. Unless and until the conflict between these "rules" is resolved, either by further decision of the Court of Appeal or by statute, the submission is that collateral challenge to the validity of a licence on the basis that there was no power to grant it, should not be allowed "where either the administrator in question or the beneficiary of the conduct is not a party" (Minister's reply submissions at [33]). 156The Court of Appeal decision to which reference is made is that of Meagher JA (Priestley JA and Simos AJA agreeing) in Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80. Following the refusal of a land claim, the claimant Land Council had appealed to the Court pursuant to s 36(6). After the hearing commenced, the parties proposed to resolve the appeal, with the Minister agreeing to the transfer of land to the Land Council. Upon learning of that proposal, Tweed Shire Council sought to be joined as a party in order to oppose the transfer of land. The Council sought to contend that the land was not claimable Crown land as it was needed by the Council for public recreation. The application for joinder was refused by the trial judge and his refusal was upheld by the Court of Appeal. In his judgment, Meagher JA said (at 83): "83 The statutory scheme contained in s 36(5), (5A), (6) and (7) - which I have endeavoured to summarise envisages a gladiatorial combat between two contestants, the land council and the Minister, nobody else. On the appeal it is the duty of the Minister to justify his refusal: it is difficult to see any person discharging this duty other than the Minister himself. The appellant [Council], whilst apparently accepting that it could not be, as it were one of the principal contestants, nonetheless could be made a party under [the rules of Court pertaining to the joinder of parties]. There are many reasons, in my opinion, why this sub-rule does not apply in the present case. The primary one is that if, as I think, the statute provides that there are only two parties to an appeal under the Land Rights Act, the statute itself makes the sub-rule inapplicable. Whilst there is a general rule that all interested parties should be joined in proceedings [citation of authority omitted] that is not a universal rule." 157The Minister's present submission is expressly stated to be raised as a matter of general principle. He submitted that, in general, where the validity of a licence is challenged by a Land Council in an appeal under s 36(6) of the Land Rights Act, the appropriate course is for the Land Council to commence separate proceedings in the Supreme Court for judicial review. However, the Minister acknowledged that in the present case the Interim Licence ceased to have effect on 19 December 2008 when notice of revocation of the Boggabri Common was published in the Gazette. Further, there is no evidence that Mr Tailby seeks to defend the validity of the Interim Licence. Moreover, the only other proper party to any such proceeding would be the Common Trust as that was the entity on whose behalf Ms Kelly entered into the Interim Licence with Mr Tailby. The Boggabri Common Trust was dissolved upon revocation of the Common in December 2008: s 24(1) Commons Management Act. 158Assuming the Minister's submission of principle has merit, its application in the present case would be impractical and moot. The licence sought to be impugned no longer has legal effect; the entity granting the Interim Licence has ceased to exist and there is no evidence of any interest by Mr Tailby in supporting the validity of the Licence. Moreover, the Minister's reliance upon the Interim Licence as a basis for opposing the Land Claim was only identified in April 2013. These circumstances militate against the appropriateness of any separate proceeding in the present case. 159Notwithstanding these matters, it is appropriate to address the Minister's submission. Without intending any disservice to the detailed argument in both written and oral submissions, it is appropriate to summarise the steps in the Minister's argument. 160First, it is submitted that generally speaking, an administrative act is to be treated as valid until set aside. A statement to that effect by Gummow J in Ousley v R at (130 - 131) is cited in support of that proposition. So also is the judgment of the plurality in State of New South Wales v Kable [2013] HCA 26 at [22] as well as the judgment of Gageler J in that same case at [52]. As a consequence so it is submitted, the Minister is entitled to rely upon the Interim Licence as having been validly granted under the Commons Management Act, there being no decision of a court of competent jurisdiction determining that the Licence is invalid. 161The Minister accepts that the jurisprudence determining when and the extent to which a collateral challenge will be allowed is inconclusive. So much is apparent from the different judgments in Ousley v R. That difference, so it is submitted, is illustrated in the more recent decision of the Victorian Court of Appeal in Director of Housing v Sudi [2011] VSCA 266; 33 VR 559. As Warren CJ at [28] and Maxwell P at [66]-[69] there observed, the extent to which collateral challenge may be allowed will depend upon the statutory provisions governing the proceedings in which the collateral challenge is sought to be made. 162The submission continues, the legislative regime under which this Court is given jurisdiction to hear and determine appeals of the present kind weigh against the power of the Court to allow a collateral challenge of the kind made in the present case. The reasons advanced by the Minister in support of that submission are: (a) there can only be two parties to the appeal under s 36(6) of the Land Rights Act; (b) by s 39(5) of the Land and Environment Court Act 1979 (the Court Act), applicable because the appeal is assigned to Class 3 of the Court's jurisdiction, the decision on appeal is deemed to be the final decision of the body whose decision is subject to appeal and as the Minister when determining the Land Claim would have no power to "quash" the Interim Licence, so also the Court would lack power so to do; (c) allowing a collateral challenge would by-pass "the protective mechanisms associated with judicial review proceedings as to standing, delay and other discretionary considerations"; (d) the process of the Court for determining an appeal under s 36(6) of the Land Rights Act is not conducive to the ventilation of issues raised in a collateral challenge to an administrative act, as there are no pleadings involved and the Minister bears an onus. 163The Minister accepts that there have been a number of cases involving an appeal under s 36(6) of the Land Rights Act in which the validity of licences or other form of authority granted by the Minister have been the subject of collateral attack in order to establish that the land, the subject of claim, is claimable Crown land within the meaning of s 36(1). The most recent examples of land claims that have turned upon the challenge to a licence or other right of occupation given by the Minister are Goomallee; New South Wales Aboriginal Land Council V Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69. In none of the cases in which a challenge of that kind has been made has the availability of collateral challenge been raised, either at first instance or in the case of Goomalle and Limbri, on appeal to the Court of Appeal. Thus, there is no appellate decision determining that a collateral challenge can be made in the course of an appeal under s 36(6) of the Land Rights Act. 164However, there are cases in which separate proceedings have been commenced in which a third party has sought to establish that land the subject of a land claim is not claimable Crown land within the meaning of s 36(1). The cases cited in support of that proposition are Mogo Local Aboriginal Land Council v Eurobodalla Shire Council and Tweed Shire Council v Minister Administering the Crown Lands Act (1996). 165The submissions of the Minister are, to my mind, answered by the provisions of s 36 of the Land Rights Act, coupled with the exercise of jurisdiction by the Court under the provisions of the Court Act. The obligation imposed upon the Court when determining an appeal under s 36(6) is expressed in s 36(7). That obligation is to order transfer of the land claimed to the claimant Land Council if the Minister fails to satisfy the Court that the land is not claimable Crown land (NSW Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (Windbar Claim [No 3]) (1988) 14 NSWLR 685 at 691 - 692). Necessarily, it is only by reference to the provisions of s 36(1) that the requisite satisfaction may be established. 166In the context of the present case, satisfaction that the land is not claimable Crown land requires acceptance of the Minister's contention that use or occupation of the claimed land was legally authorised (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1991) 75 LGRA 133 per Clarke JA at 142). Where, as here, the Minister relies upon user under a lease, licence or other right said to be granted under a statute authorising the use of land vested in Her Majesty, that reliance will inevitably give rise to the question as to whether the grant of the right was, in fact, authorised by the relevant statute. If the right of user upon which reliance is placed is not one for which the statute provides then occupation in accordance with that claimed right is not legally authorised. Importantly, once the Minister relies upon such a right in seeking to discharge the onus imposed by s 36(7), the Land Council may legitimately take issue with that reliance. 167As the Minister acknowledges, there are a number of cases both in this Court and in the Court of Appeal in which the validity of a lease, licence or permissive occupancy under Crown lands legislation has been considered in order to determine whether land is claimable Crown land within the meaning of s 36(1)(b) of the Land Rights Act when determining an appeal under s 36(6). While the entitlement of a Land Council to challenge the validity of any such lease, licence or permissive occupancy in the context of an appeal under s 36(6) has not been the subject of determination in the Court of Appeal, it has certainly been accepted in this Court. 168In Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Armidale) [2001] NSWLEC 268; 118 LGERA 356, an appeal under s 36(6), the Minister contended that the reservation of the land in question under the Crown Lands Act was unlawful. The Land Council submitted that the Court lacked jurisdiction to determine that question. Bignold J rejected the Land Council's submission. He said at [35] - [37]: "35 The submission must be firmly rejected as clearly this Court has the jurisdiction to determine the question as a disputed issue requiring adjudication in the course of the exercise of this Court's statutory jurisdiction to determine the applicant's appeal pursuant to the ALR Act, s 36(6): see National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 and Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115. 36 In Stables Perisher, Gleeson CJ said (at 582): 'The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim.' 37 Similarly, in Vaughan-Taylor, Meagher JA (at 123) said: 'It [the Land and Environment Court] had, as was conceded, no jurisdiction to determine a direct challenge to the mining lease as such, but it did have jurisdiction to determine that question in an indirect or collateral fashion.' 169In addition to those observations, reference should also be made to s 16(1A) of the Court Act. Subsection (1A) provides: (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act." The validity of the Interim Licence is ancillary, if not essential, to a decision as to whether Mr Tailby's occupation of Lot 7016 was legally authorised. As such, it is an issue that may be decided by the Court in the course of determining the present appeal (Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196 at [66] - [67]; [82] - [86]). 170These observations render it unnecessary to address the question as to whether the exercise of power in granting the Interim Licence should be regarded as valid until determined otherwise by order of a court of competent jurisdiction. However, I do not accept that a principle relevant to the circumstances of the present appeal, is determined by the decision of the High Court in Kable. The observations of the Court in that case were directed to a circumstance involving orders made by the Supreme Court which that Court had no jurisdiction to make. Those observations were directed to the effect of orders made by a superior court that were beyond power and not the consequence of an administrative decision made beyond power. 171The more relevant consideration is whether a collateral challenge is permissible. As the Minister acknowledges, there is no concisely expressed principle establishing the circumstance in which such a challenge may be entertained. In Ousley v R, McHugh J referred (at 100) to "the prevailing theory" that an administrative act or order made outside jurisdiction was void, with the consequence that "a litigant, affected by the act or order, may challenge it collaterally." His Honour continued: "Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation." 172In Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83 the plurality (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held (at [36]) that: " ... in the absence of legislative prescription to the contrary, [a decision of an administrative nature] would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seized." The significance of statutory provisions that confer jurisdiction to determine a particular controversy are emphasised by that decision and, as the Minister recognised, embraced by the Victorian Court of Appeal in Director of Housing v Sudi. As I have sought to demonstrate, the provisions of s 36 of the Land Rights Act pertaining to land claims and appeals to the Court make apparent that collateral challenge is available in the course of determining an appeal under the section. In the context of the observations in Breckler, there is certainly no legislative prescription to the contrary. 173The provisions of s 36 of the Land Rights Act are also relevant in addressing the Minister's submission directed to the absence of parties who may be thought to have an interest in the land that is the subject of claim. It must be remembered that the fundamental attribute of land that may be claimed is that it be land "vested in Her Majesty" at the time of claim. It is the Minister who exercises primary control of land so vested and as a consequence has the capacity to provide evidence of any matter relevant to the provisions of s 36(1) of the Land Rights Act in order to establish that the land sought is not claimable Crown land. The capacity of the Minister so to do extends to the identification of any third party interest together with the terms on which and circumstances in which that interest was created. 174In this context, I have earlier referred to the observations of Meagher JA in Tweed Shire Council v Minister Administering the Crown Lands Act as to the statutory scheme created under s 36. One of the decisions that was the subject of the appeal there being determined was the decision of Bignold J in Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 3] [The Fingal Claim] (1995) 89 LGERA 220. In the latter case, Bignold J said (at 224): "The legislative scheme in respect of land claims is, as I have noted, quite clear. Its justification for confining statutory functions to the claimant Aboriginal land council and to the Minister is likewise clear, and is no doubt substantially based upon the fact that principal, if not exclusive responsibility for Crown lands is vested in the Minister currently under the Crown Lands Act 1989 (NSW) .... Accordingly, the legislature is to be taken as deliberately leaving to the Minister's determination following his own investigation and enquiry (and subject to the statutory right of appeal) the question of whether the claimed lands are relevantly 'claimable Crown lands'. Neither the Minister's original function, nor the Court's appellate function in respect of this all important question has been treated by the legislature as requiring the participation of other persons, eg other persons claiming a relevant interest in, or status for, the lands which, if established, may disqualify the lands from being 'claimable Crown lands'." (Original emphasis.) I respectfully embrace his Honour's observations. 175The Minister's reference to s 39(5) of the Court Act as a basis for contending that the collateral challenge to the Interim Licence cannot or should not be entertained fails to have due regard to the provisions of s 36(7) of the Land Rights Act and of the Court Act itself. While it can be accepted that when exercising the function under s 36(5) of the Land Rights Act to make the initial determination of the present claim, the Minister did not have power to "quash" the decision to grant the Interim Licence or declare the Interim Licence to be invalid, the Court, on appeal under s 36(6), does not make any order or orders in those terms. Its function is to determine the appeal and, if upheld, to order the transfer of the claimed land. A determination that the Interim Licence was beyond the power of Ms Kelly to grant when exercising her function under the Commons Management Act was a decision to be made only in the course of determining the appeal. The reasons for so concluding have earlier been addressed. 176Moreover, s 36(7) of the Land Rights Act requires that the Minister satisfy the Court that the land claimed is not claimable Crown land. In making a land claim, there is no provision within s 36 that imposes an onus on a claimant Land Council to satisfy the Minister that the land claimed is claimable Crown land. The exercise of the Minister's function under s 36(5) appears to involve investigation by or on behalf of the Minister in order to be satisfied that the land is (s 36(5)(a)), or is not (s 36(5)(b)) claimable Crown land. What may satisfy the Minister that land is not claimable when exercising that function does not bind the Court. On the contrary, the Minister bears the onus that I have identified. Whether the Minister succeeds in so doing will not be determined on the evidence available to the Minister at the time of making the decision to refuse the claim but rather on the evidence that is adduced on the hearing of the appeal. That evidence may include, as it did here, evidence directed to the validity of the Interim Licence. The appeal is by way of rehearing and fresh or additional evidence directed to the issues may be received: s 39(3) of the Court Act. 177The Minister also points to the procedures of the Court for determining appeals in Class 3 of its jurisdiction as an indication that the Court cannot or should not determine the validity of an interest claimed to have been granted under legislation in respect of land owned by the Crown. However, as the Land Council submits, the procedures of the Court must and do yield to the provisions of s 36 of the Land Rights Act as they bear upon the determination of the appeal. The provisions of that section coupled with the provisions of the Court Act render appropriate the procedures for determination of all issues properly agitated in an appeal under s 36(6). The Court Act contains special provisions addressing the appointment of Commissioners able to exercise any function under the Court Act in proceedings arising under the Land Rights Act (s 30(2A) and requires that an appeal arising under the latter Act be heard by a Judge of the court, sitting with a Commissioner or Commissioners appointed for the purpose of exercising a function under that Act: s 37(2) of the Court Act. Those provisions, introduced to the Court Act upon the enactment of the Land Rights Act, speak against an interpretation of the Land Rights Act that would require questions essential to the determination of a land claim to be determined by a different court. 178Reliance by the Minister upon the procedures adopted in Mogo Aboriginal Land Council v Eurobodalla Shire Council (Mogo) and Tweed Shire Council v Minister Administering the Crown Lands Act (Tweed) as illustrative of the course that is advocated by the Minister for determination of the validity of a lease or licence said to sustain lawful user appears to me to be misplaced. In Mogo, although a number of orders were sought by Eurobodalla Shire Council in the proceedings commenced by it, as my earlier discussion of the case indicated, principal among them was an order seeking to have rectified an alteration made by the Registrar-General to the Register under the Real Property Act, removing the name of the Council as registered proprietor of the land and incorrectly recording the land as being Crown land. The Supreme Court was the only court with jurisdiction to require rectification of the Register. It was not a proceeding commenced by the Land Council seeking to have a right determined as a process associated with its land claim. 179The Minister's contention that in Tweed an appeal under s 36(6) was stayed to allow the Tweed Shire Council to commence separate proceedings for declaratory relief in relation to the claimed land is not supported by any recitation of background facts in the report of the case. The Council appealed to the Court of Appeal from the summary dismissal of Class 4 proceedings commenced by it in this Court in which it sought a declaration that the land in question was not claimable Crown land. At the same time it unsuccessfully sought joinder as a party in an appeal instituted under s 36(6) of the Land Rights Act (The Fingal Claim). The Minister's appeal in the Land Claim proceedings and the Council's appeal in its proceeding were heard together and are the subject of the decision of the Court of Appeal, the leading judgment in which was delivered by Meagher JA. 180The decision at first instance was given by Bignold J (Tweed Shire Council v The Minister Administering the Crown Lands Act (1995) 89 LGERA 187). He determined (at 189 - 190) that the declarations sought by the Council were beyond the jurisdiction of the Court - " ... for the reason that the legislature, by providing in s 36 of the Act the exclusive scheme for (i) the making and (ii) determination of land claims, must be taken to have impliedly ousted this Court's jurisdiction to make declarations in respect of the very same matters that are fundamental to the working out of the legislative scheme created by s 36 of the Act." (Original emphasis) The decision of the Court of Appeal to which I have earlier referred and articulated in the judgment of Meagher JA is to the same effect. The decision both at first instance and on appeal supports the Land Council's contention that all issues pertaining to the determination that land is claimable Crown land are appropriately determined in the context of an appeal under s 36(6). 181In summary, for the purpose of determining this appeal pursuant to s 36(7) of the Land Rights Act, I find no basis upon which the Court cannot or should not determine whether the Interim Licence dated 25 July 2008 was a Licence granted in conformity with the Commons Management Act. For reasons earlier stated, it was not.

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