New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act - [2015] NSWCA 349 - NSWCA 2015 case summary — Zoe

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

[2015] NSWCA 349

Court of Appeal (NSW)|2015-08-13|Before: Beazley P, Macfarlan JA, Leeming JA

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Court

Court of Appeal (NSW)

Decision date

2015-08-13

Before

Beazley P, Macfarlan JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Vict c 55) Cases Cited: Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Barton v The Commonwealth (1974) 131 CLR 477 Breskvar v Wall (1971) 126 CLR 376 Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; 242 CLR 195 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149 Colon Peaks Mining Co v Wollondilly Shire Council (1911) 13 CLR 438 Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Daruk) (1993) 30 NSWLR 140 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 DPP v Hilzinger [2011] NSWCA 106; 80 NSWLR 629 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 Grassby v The Queen (1989) 168 CLR 1 Haines v Tempesta (1995) 37 NSWLR 24 Jones v Dunkel (1959) 101 CLR 298 Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 Leahy v Attorney-General (NSW) [1959] AC 457 Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1992) 75 LGRA 133 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council (Bathurst) [2009] NSWCA 138; 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v La Perouse Aboriginal Land Council (Malabar Police Station) [2012] NSWCA 359 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Wagga Wagga) [2008] HCA 48; 237 CLR 285 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee claim) [2012] NSWCA 358; 84 NSWLR 219 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar No 3) (1988) 14 NSWLR 684 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Department of Education Claim) (1992) 76 LGRA 192 New South Wales v The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (Wagga Wagga CA) [2007] NSWCA 281; 157 LGERA 18 Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415 R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283 Randwick Corporation v Rutledge (1959) 102 CLR 54 Rowe v Electoral Commissioner [2010] HCA 46; 243 CLR 1 Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; 80 NSWLR 226 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; 206 LGERA 450 Williams v Attorney-General (1913) 16 CLR 404 Woolley v Attorney General of Victoria (1877) 2 App Cas 163 Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45 Texts Cited: Australian Encyclopaedia (5th ed 1988, Australian Geographic Society), Vol 2 R Cross and J W Harris, Precedent in English Law (4th ed 1991, Clarendon Press) J Jervis, A History of the Berrima District 1798-1973 (2nd ed 1973, Library of Australian History) A Melbourne, Early Constitutional Development in Australia (1963, University of Queensland Press) A Twomey, The Constitution of New South Wales (2004, Federation Press) Category: Principal judgment Parties: New South Wales Aboriginal Land Council (Appellant) Minister Administering the Crown Lands Act (Respondent) Representation: Counsel: S E Pritchard SC, B K Lim (Appellant) A M Stewart SC, N M Kelly (Respondent)

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] On 24 February 2012, the appellant, New South Wales Aboriginal Land Council (NSWALC), lodged Claim 36016 on its own behalf in respect of two adjacent parcels of Crown land in Berrima. The claim was lodged pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) (the Act). The claimed land included the site of Berrima gaol and associated gardens, outbuildings and recreational facilities. The claimed land was subject to three dedications, made under the predecessors of the Crown Lands Act 1989 (NSW): for "Gaol Site (extension)" in 1891, "Gaol Purposes" in 1894, and "Gaol Site (addition)" in 1958. These dedications were in force at the date of the claim, but the gaol itself had been decommissioned with effect from around October 2011. On 20 November 2012, the Minister rejected NSWALC's claim, pursuant to s 36(5)(b), on the basis that the land was lawfully used and occupied by Corrective Services NSW (CSNSW). NSWALC appealed to the Land and Environment Court. On 1 December 2014, the primary judge rejected NSWALC's appeal on the basis that the claimed land was lawfully occupied by CSNSW, as a manifestation of the Crown in NSW, at the date of the claim. NSWALC's appeal gave rise to four issues: (a) whether the primary judge's reasoning disclosed error of law in the finding of facts, including shifting the evidential burden to NSWALC; (b) whether the primary judged erred in finding that the claimed land was occupied in fact at the date of the claim; (c) whether, in determining occupation, the primary judge erred in failing to consider each of the four decommissioned buildings individually; and (d) whether the primary judge erred in holding that occupation of the claimed land by CSNSW was lawful. Held by Leeming JA, Beazley P and Macfarlan JA agreeing, rejecting the appeal: First issue: evidential burden and erroneous findings of fact

Where a statute imposes a burden of proof on a particular party (here, the Minister per s 36(7) of the Act), this does not preclude a court from drawing inferences nor does it displace the ordinary processes of fact finding: at [70], [74]. Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69, followed and applied
NSWALC chose not to adduce evidence and not to cross-examine opposing witnesses to fill gaps in the affidavit evidence; these decisions are not indicative of incapacity to respond, but rather reflect a failure to investigate in circumstances where NSWALC selected the timing of lodgement of the claim: at [80]. R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283; Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415, considered Second issue: occupation
The primary judge was correct in her approach to assessing whether there was occupation in fact, by considering all the acts taking place on the land in their totality: at [97].
The findings of fact, including the presence of security 24 hours a day 7 days a week and regular visits by offenders serving Community Services Orders to perform work in the grounds and gardens under the supervision of a CSNSW officer, were sufficient to sustain a finding of occupation in fact. It was not the case that the land had ceased to be used for the purposes of punishment of offenders nor had the land been "mothballed" pending a decision as to its future use. The primary judge's analysis amounted to a qualitative evaluation of the acts, facts, matters and circumstances pertaining to the whole and each part of the claimed land: at [91], [100]-[101].
A mere complaint as to the outcome of the primary judge's qualitative evaluation of the evidence is outside the scope of an appeal to this Court restricted to errors of law: at [101]. Minister Administering the Crown Lands Act v La Perouse Aboriginal Land Council (Malabar Police Station) [2012] NSWCA 359, applied Third issue: failure to consider buildings individually
The primary judge's reasons reflected the limited nature of the alternative submission propounded at trial. It is for the parties to identify the extent to which the individual areas of land should, in the alternative to the whole of the land, be transferred to the council. The failure of the primary judge to address individually the buildings erected on the claimed land, when no such submission was raised at trial, does not amount to an error of law: at [104]-[105]. Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531, considered; Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; 206 LGERA 450, applied Fourth issue: lawful occupation
Section 2 of the New South Wales Constitution Act 1855 (18 & 19 Vict c 54) did not produce the result that statutory authorisation was required in order for any occupation of Crown land to be lawful. It did not abrogate Crown prerogative power, which is not abrogated save by express words or necessary implication: at [130]-[131]. The Queen v Wilson (1874) 12 SCR (L) 258; Woolley v Attorney General of Victoria (1877) 2 App Cas 163; Colon Peaks Mining Co v Wollondilly Shire Council (1911) 13 CLR 438; Williams v Attorney-General (1913) 16 CLR 404; Breskvar v Wall (1971) 126 CLR 376; Barton v The Commonwealth (1974) 131 CLR 477; New South Wales v The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337; Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; 242 CLR 195, followed and applied The enactment of the New South Wales Constitution Act 1855, the Crown prerogative and the relationship with Torrens title, discussed
In relation to the question of whether CSNSW could lawfully occupy the land: (a) This part of the primary judge's reasoning was not material or operative; even if it disclosed error, it would not affect the outcome of the appeal: at [142]. Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339; Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298; Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45, applied (b) Neither CSNSW nor the Department of which it forms part are legal persons; it is unhelpful to ask whether something which is not a legal person lawfully occupied land, but if it is necessary to do so then it is conventional to say that the land was lawfully occupied by the Crown in right of New South Wales, which includes the Government of New South Wales: at [145]-[146]. Leahy v Attorney-General (NSW) [1959] AC 457; Crown Proceedings Act 1988 (NSW), s 3, considered

[5]

Judgment

BEAZLEY P: I have had the advantage of reading in draft the detailed reasons of Leeming JA with which I agree. I also agree with the orders his Honour proposes.
MACFARLAN JA: I agree with the judgment of Leeming JA and add the following observations.
Contrary to the appellant's submissions, the primary judge did not err in law in her application of the word "occupied" in s 36(1) of the Aboriginal Land Rights Act 1983 (NSW). It is evident from the plurality judgment in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 that no exhaustive definition of the word "occupied" should be attempted (at [69]). Rather, "attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being 'not lawfully used or occupied'" and "to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land" (ibid). This is what the primary judge did.
Moreover, again contrary to the appellant's submissions, her Honour did not confine her consideration to the question of control of the property. She treated this as relevant but not conclusive and had regard also to physical acts that occurred on the property.
There was no error of law in the primary judge's conclusion that the property was relevantly "occupied" as her Honour did not make any error of principle and there was evidence that could reasonably found the conclusion, in particular, evidence that there was a security guard at the premises 24 hours a day, working in two shifts of 12 hours each. This amounted to a physical presence on the property on behalf of the Crown.
It was not necessary for the primary judge to consider whether part only of the land was "occupied" as the evidence upon which her Honour relied, in particular that relating to the security arrangements, was capable of supporting a finding that the whole site was occupied.
LEEMING JA: On 24 February 2012, the appellant (NSWALC) lodged a claim on its own behalf pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) (the Act) for two parcels of land in Berrima in the Southern Highlands of New South Wales which had long been associated with Berrima gaol. The Registrar accepted the claim as Claim 36016.
The claim was over lot 7304 of DP 1146099 and lot 447 of DP 751252. Lot 7304 is considerably the larger. On it had been built the gaol itself (comprising stone buildings around two inner yards all surrounded by a sandstone wall), as well as three separate buildings, known as the superintendent's house, the corner residence, and the print house. The buildings occupied somewhat less than half of the land. There were also substantial gardens, outbuildings, and some recreational facilities. Lot 447 is a thin strip of land adjoining lot 7304 to the south, which was substantially occupied by gardens and a small building. To the east of both lots is the Old Hume Highway. The western boundaries of both lots adjoin the Wingecarribee River. Together, the lots comprised some 2.2 hectares.
On 20 November 2012, the joint Crown Lands Ministers refused the claim, on the basis that the land was "lawfully used and occupied" within the meaning of s 36(1)(b) of the Act. The primary judge dismissed NSWALC's appeal. For the reasons which follow, I have concluded that NSWALC's further appeal to this Court should be dismissed.

[6]

Applicable legislative regime and procedural history

Section 36 of the Act is, relevantly, in the following terms: "36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, ... (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. … (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it. (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council."
NSWALC's claim was lodged on 24 February 2012. Following an investigation, by letter dated 20 November 2012, the Deputy Premier advised NSWALC that he and the Minister for Primary Industries were joint Crown Lands Ministers for the purposes of the Aboriginal Land Rights Act, and that both were satisfied that when the claim was made the land was lawfully used and occupied by Corrective Services NSW (CSNSW). The consequence was that, pursuant to s 36(5)(b), the Ministers were required to refuse the claim.
By application in Class 3 of the jurisdiction of the Land and Environment Court filed 18 March 2013, NSWALC appealed pursuant to s 36(6) of the Act, within the four months provided by Land and Environment Court Rules 2007, r 7.1(b). NSWALC's appeal joined as a respondent the "Minister Administering the Crown Lands Act". It will be convenient in these reasons to follow the approach of the parties and refer to the (singular and masculine) Minister.

[7]

Applicable legal principles

It has long been established that despite the permissive language of s 36(7) ("may, if the relevant Crown Lands Minister fails to satisfy the Court ... order that the lands ... be transferred to the claimant"), the power conferred on the Land and Environment Court "is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection": New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar No 3) (1988) 14 NSWLR 684 at 693.
The Minister accepted, correctly, that he bore the onus of demonstrating that the claimed lands were not "claimable Crown lands" within the meaning of s 36. To do so, he relied only upon paragraph (b) of s 36(1), which requires the land to be "not lawfully used or occupied". But the Minister's approach was narrower still. He did not rely upon lawful use. The Minister contended, and the primary judge found, that the land was "lawfully occupied" at the time the claim was lodged. There was no notice of contention.
There is an outstanding question whether those words "not lawfully used or occupied" are to be construed as a single composite phrase, or as comprised of separate limbs; cf Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Wagga Wagga) [2008] HCA 48; 237 CLR 285 at [73]. That decision shows that it is an available approach to proceed solely on one limb of the paragraph, and given the approach taken by the parties, there is no occasion in this appeal to revisit the question left outstanding by the High Court; cf Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council (Bathurst) [2009] NSWCA 138; 166 LGERA 379 at [248]-[250]. As Basten JA there noted, the distinction between use and occupation lacks substance once it is accepted that physical acts amounting to actual occupation are required, although where land is leased it may be proper to consider use separately from occupation: see (in relation to the same words, but in a rating context) Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304; and Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327 at [60].
Mere proprietorship is insufficient to constitute occupation: Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1992) 75 LGRA 133 at 140.
The actual occupation required must be occupation in fact and to more than a notional degree: Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Daruk) (1993) 30 NSWLR 140 at 162, a judgment of Priestley JA described as a "seminal judgment" in Minister Administering the Crown Lands Act v La Perouse Aboriginal Land Council (Malabar Police Station) [2012] NSWCA 359 at [41], and applied in Bathurst by Tobias JA at [159]-[162], and discussed by Basten JA at [225]-[229]. However, continuous physical presence on every part of the land is not necessary: Tweed Byron at 140.
In the High Court in Wagga Wagga, Hayne, Heydon, Crennan and Kiefel JJ said at [69]-[70] (citations omitted): "[A]ttention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being 'not lawfully used or occupied'. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land. ... [A] combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital … shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be 'used or occupied by the hospital for the purposes thereof'. Hence the importance of directing attention to what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of 'not lawfully used or occupied'. It is the specification of those acts, facts, matters and circumstances which will provide the greatest help in deciding whether land meets the relevant description."
The matters alleged to comprise occupation or use are to be evaluated in light of the purpose of the putative user or occupier and the surrounding circumstances: Malabar Police Station at [35]. That will be the subject of an evaluative judgment by the Land and Environment Court at first instance. There will be cases where there will be room for disagreement as to whether or not the activities proven sufficed to establish use or occupation. In such cases, where the primary judge has correctly formulated the test to be applied, a party's disappointment with the outcome of that assessment will be outside the scope of the appellate jurisdiction of this Court: Malabar Police Station at [58].
The occupation (or use) must also be lawful. In the present proceedings, this element of the definition directs attention to the consequences of Crown land being dedicated or reserved. Two propositions are of particular importance for present purposes. The first (which relates to grounds one and two of the appeal) is that dedicated or reserved lands fell within the waste lands of the Crown. The second is that activities on dedicated or reserved land which are contrary to the purpose of the dedication or reservation are not "lawful" for the purposes of s 36(1)(b) of the Act.
In relation to the first, the history of reservation and dedication of Crown lands in colonial New South Wales was authoritatively recounted by Windeyer J in Randwick Corporation v Rutledge (1959) 102 CLR 54 at 69-80. Reservation came first. Legislative recognition of dedication commenced with Acts dealing with waste lands in 1842 and 1846 (5 & 6 Vict c 36 and 9 & 10 Vict c 104). After referring to the dedication of roads and highways at common law, Windeyer J said at 74-75: "But it seems more probable that 'dedicate' came to be used in New South Wales without any concern for its limited common law sense. It seems to have been thought to indicate something more formal than mere reservation from sale, something binding the Crown and creating some right in members of the public or of a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons. ... But could land while still held by the Crown be said to be dedicated to a particular public purpose? The question was agitated in New South Wales before responsible government; and it became important after the new constitution came into operation in 1856 and the colonial legislature got control of the waste lands of the colony. It was finally settled by this Court and the Privy Council in 1915."
His Honour then traced a series of developments, reaching the conclusion that dedicated lands did fall within the definition of waste lands in the New South Wales Constitution Act 1855 (18 & 19 Vict c 54). His Honour said at 75-76: "But, in so far as the decision in Attorney-General v Eagar (1864) 3 SCR (NSW) 234 appeared to place dedicated lands outside the authority of the legislature, it was mistaken. It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose. All this was fully considered in Williams v Attorney-General for New South Wales (the Government House Case (1913) 16 CLR 404; [1915] AC 573; (1915) 19 CLR 343). It suffices to say here that there can be no dedication in any strict sense unless a public trust be created."
In relation to the second, it is to be taken as settled that use or occupation which is unrelated to the purpose for which land is dedicated or reserved is not lawful use or occupation. That flows from the unanimous judgment of a five member Court in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee claim) [2012] NSWCA 358; 84 NSWLR 219. Basten JA said at [37], with the agreement of Beazley, McColl, Macfarlan JJA and Sackville AJA, that "where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised". Consequently, a grazing licence in respect of land the subject of a reservation from sale for the purpose of public recreation was found to be invalid and the use for the purpose of grazing was without lawful authority and therefore unlawful: at [38]-[39].
Section 6 of the Crown Lands Act 1989 provides (just as s 6 of the Crown Lands Consolidation Act 1913 (NSW) provided) that "Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by [specified Crown lands legislation]". That important obligation was regarded, rightly, by Bryson J, as of the utmost importance: "All dealings in reserve lands and other Crown lands were subject to the overriding control in s 6 of the [Crown Lands Consolidation Act] which had the effect that all dealings with Crown land including leases must be made in accordance with statutory authority. This should be regarded as a constitutional principle for New South Wales": Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 at [5].
The same approach must apply here. There can be no relevant difference between Crown land which is the subject of a reservation, and Crown land which is the subject of a dedication. Indeed, as Basten JA said in Bathurst at [239]: "As was accepted in New South Wales v The Commonwealth (1926) 38 CLR 74 (the Garden Island Case) a dedication or reservation of land for the purposes of a naval depot 'restricted the use of the land' at 84 (Knox CJ, Gavan Duffy, Rich and Starke JJ). Isaacs J, who dissented as to the outcome, but not in relation to this principle, after referring to the predecessor to s 28 of the Crown Lands Consolidation Act referred to above, stated at 91: 'That impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated.'"
Further, there can be no relevant difference between the use and occupation limbs of the definition of claimable Crown lands in this respect. Action which is contrary to a dedication or reservation is not lawful and thus does not assist to establish a lawful use or a lawful occupation. As much was said by Tobias JA in Bathurst at [183]: "Furthermore, the [Act] deals with Crown lands most of which comprise large tracts of natural bushland. Such lands are claimable if, inter alia, they are reserved or dedicated for any purpose under the 1913 Act: s 36(1)(a). If it is to be asserted that such lands are 'lawfully occupied' within the meaning of s 36(1)(b), it is difficult to envisage how that could be unless any acts of physical occupation relied upon are for the purpose for which the lands are dedicated or reserved. The same observation can be made with respect to urban Crown lands including, in particular, those with buildings erected thereon. How, one asks rhetorically, can it be said that a building is physically or actually occupied other than for its reserved or dedicated purpose?"

[8]

Evidence before the primary judge

The Minister served affidavit evidence in relation to the maintenance, security and other services connected with the land from: Mr Harrington, a community corrections officer employed by CSNSW; Mr West, a member of the Illawarra/Southern Highlands branch of Heritage Roses in Australia Inc; Mr Tate, who had been in charge of work conducted in the gardens on the land by persons serving Community Service Orders; and Mr Hay, who was a Director, Asset Management, within CSNSW. None of the witnesses was cross-examined.
It will be necessary, in dealing with grounds four and five of the appeal, to deal in some greater detail with the evidence. In general terms, this evidence established that a decision had been taken to close Berrima correctional centre with effect from around October 2011. Thereafter, there was a reduced security presence at the correctional centre, although at the time of the claim that still amounted to one security guard being present 24 hours a day, 7 days a week. Electricity, water and sewerage services remained connected to the centre. A fire alarm system remained in place, and from time to time was checked by a contractor (although the evidence only established one inspection between October 2011 and the date of the claim). Apparently some assets continued to be stored in the correctional centre in February 2012, although more recently they had been removed. There was no evidence as to what those assets were or their number or bulk.
Further, groups of persons serving Community Service Orders regularly visited the land to work on the gardens. For example, in February 2012, groups of between 7 and 14 participants attended on Saturdays 4, 18 and 25 and Sundays 5, 12, 19 and 26 February, under the supervision of Mr Tate, to conduct work at the front and the back of the gaol and inside the gaol. Mr Tate said that after collecting the offenders from Minto at around 8am, the group usually arrived at Berrima gaol around 9:30am and worked until around 2:15 or 2:30pm, in order to return to Minto by 3:30pm.
That is to say, offenders were working on the claimed land in the performance of their sentences, under the supervision of Mr Tate, on both days of the two weekends immediately preceding and following the lodging of the claim.
The work concentrated on the roses, but extended to fruit trees at the back of the gaol, mowing the lawns and maintaining and weeding the gardens. A chicken coop was replaced with a vegetable garden, with around 20 different vegetables growing there, most of which were given to charity. The interior of the gaol was mown about once per month, which would take about half an hour. Finally, in December 2011 and January 2012, the offenders began repairing an irrigation system on the grounds at the front and back of the gaol, as the old sprinkler system had stopped working. Mr Tate said that that work was ongoing after January 2012 as various pieces needed to be replaced.
In order to access the interior, Mr Tate had to get the security guards to let him in, except for one period during which he had a key to the main gate. Mr Tate said that on occasions he left a wheelbarrow and gardening tools in the store room, to which he had a key. Save for going into the store room, Mr Tate did not have a key for, and did not go inside, any of the other buildings.
Mr West gave evidence that the gardens contained a "noteworthy collection of roses, both in terms of its diversity and presentation". He had taken steps, in early February 2012, to arrange a visit to the gaol. That visit (by him and five other members of Heritage Roses) took place on 10 March 2012, after the claim had been made. Mr West obtained permission from Corrective Services do to so. He observed that the roses were being maintained, there was no disease on the foliage, the bushes were in good order and had been pruned.

[11]

Dedications in 1891, 1894 and 1958 - continuing in force until February 2012

The land was in fact used for a gaol for many decades prior to 1891. J Jervis, A History of the Berrima District 1798-1973 (2nd ed 1973, Library of Australian History) at 33-35, describes the construction and use of the gaol from the 1830s shortly after the town was founded, as does the entry for Berrima in the Australian Encyclopaedia (5th ed 1988, Australian Geographic Society) Vol 2 at 425. (Those works were not in evidence, but may be relied on, in accordance with the course taken in, for example, Rutledge at 81-83 and Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; 242 CLR 195 at [76]-[84].) I mention this to explain the language used in the 1891 dedication.
The evidence of use of the land commenced at the end of the nineteenth century. In April 1891, the Governor of Berrima Gaol applied for "an additional area for Gaol purposes", and supplied a surveyor's plan of the part of the claimed land. Pursuant to s 104 of the Crown Lands Act 1884 (NSW), the Governor dedicated the land described on that application for the purpose of "Gaol Site (extension)". The Gazettal was made on 11 November 1891, and stated that the area was 1 acre and 30 perches: see New South Wales Government Gazette, 11 November 1891, at 8883. Eventually, that dedication was identified as "dedication reserve No 1001173".
A second dedication for "Gaol Purposes", also pursuant to s 104 of the Crown Lands Act 1884 (NSW), was made on 19 October 1894 in respect of land comprising part of the claimed land, this time amounting to 3 acres, 3 roods and 8 perches: see New South Wales Government Gazette, No 626, 19 October 1894, at 6598. That dedication was identified as "dedication reserve No 1001174". It followed upon an application and accompanying survey commissioned by the Department of Justice for the purpose of a larger parcel of land to be dedicated for "Police Court House and Gaol Purposes"; the larger parcel of land included land to the north of the claimed land.
There is a (slight) discrepancy between the slightly more than 5½ acres which was dedicated in 1891 and 1894, and the 2.2 hectares claimed in 2012. Nothing turns on this. The parties proceeded on the basis of an agreed statement of facts, reproduced in [10] of the reasons of the primary judge, that the 1891 and 1894 dedications each fell within Lot 7304 and each covered separate sections.
The parties' agreement extended to Lot 447 being subject to a third dedication, notified on 5 December 1958, pursuant to s 24 of the Crown Lands Consolidation Act 1913 (NSW), for "Gaol Site (addition)".

[12]

Proclamations under prisons legislation - all revoked prior to February 2012

Although it may readily be inferred that the land was under the control of the Governor of Berrima Gaol in 1891, the material in evidence commences in 1944. A metes and bounds description of the land was used in that year to declare the land as "a place of detention for the purpose of employment of prisoners to be known during the period of such employment as the Berrima prison camp": see New South Wales Government Gazette, No 94, 22 September 1944, at 1621. That proclamation was revoked in 1949, and replaced by a proclamation under s 35 of the Prisons Act 1899 (NSW). The latter proclamation made the land a "place of detention" for the purposes of that section, to be known as "Berrima training centre": see New South Wales Government Gazette, No 207, 4 November 1949, at 3320.
The whole of the claimed land, again defined by a metes and bounds description, but stated to have an area of 2.206 hectares, was the subject of a proclamation by the Lieutenant-Governor on 3 September 1997 pursuant to subsections 5(1) and (2) of the Correctional Centres Act 1952 (NSW). The whole of the land thereby became a "correctional complex", to be known as "Berrima correctional complex": see New South Wales Government Gazette, No 99, 12 September 1997, at 8038‑39.
The 1997 proclamation was revoked by gazettal on 19 October 2001, and on the same day the land was declared to be a correctional centre with the same name, but this time under the Crimes (Administration of Sentences) Act 1999 (NSW): New South Wales Government Gazette, No 158, 19 October 2001, at 8693-8694.
By gazettal on 10 February 2012 (14 days before the claim was lodged) the 2001 proclamation was revoked, pursuant to s 224(3) of the Crimes (Administration of Sentences) Act: see New South Wales Government Gazette, No 18, 10 February 2012, at 404.
It was common ground that, as at the date of the claim, all of the proclamations under colonial and state legislation relating to the detention of prisoners had been revoked.

[13]

Heritage status of the land

The evidence suggested that the whole of the claimed land had, by gazettal dated 2 April 1999, been included on the State Heritage Register pursuant to s 37 of the Heritage Act 1977 (NSW). The gazettal itself was not in evidence, and in any event, nothing turns on this directly. As New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Department of Education Claim) (1992) 76 LGRA 192 shows, orders under the Heritage Act do not disentitle the making of a claim under the Act: at 195.
However, the historical and architectural significance of the land was at the forefront of debate within the State government, the local council and the local community as to the use of the land following the decision to close the gaol at the time the claim was lodged. The following facts were agreed: "15. An email from George Rounis of the State Property Authority [SPA] dated 13 February 2012 states, amongst other things, that: 15.1 The local council had expressed an interest in working with Crown Lands to retain the asset in a Reserve Trust, the process for which was to be managed by Crown Lands, with an officer from the Goulburn Office of Crown Lands having been appointed to work on the project; 15.2 Crown Lands were to manage the disposal of the adjoining cottage; 15.3 Corrective Services NSW had requested SPA attend a meeting in early March with Corrective Services, the local council and Crown Lands to 'assist in ensuring all parties work towards a May 1 2012 handover' of the claimed land. 16. In a Ministerial Briefing, signed by the Parliamentary Secretary on 15 February 2012, it was noted that: 'In investigating possible future uses SPA has concluded that, under the existing constraints, the property would have no significant commercial value. Furthermore, even if the dedication were lifted, the other constraints on the site would limit its commercial value to the extent that the potential return is unlikely to justify the risks to this approach, including strong community opposition. SPA has consulted with the Crown Lands Division of the Department of Trade and Investment, Regional Infrastructure and Services (Crown Lands) regarding the appropriate future ownership and/or management arrangements for the property. One such model under consideration is the creation of a Crown Reserve under the management and care of a Reserve Trust.' 17. A letter from the Parliamentary Secretary for Treasury and Finance to the Wingecaribee Shire Council enclosed with that Ministerial Briefing stated: 'With regard to your request for a meeting, it is suggested that this be deferred until the Crown Lands Group has determined a suitable model for future management of the property, at which point Council's role can be discussed with more certainty.'"

[14]

Continuing significance of the 1891, 1894 and 1958 dedications

It was also common ground that the dedications for "Gaol Site (extension)", "Gaol Purposes" and "Gaol Site (addition)" had not been revoked. The consequence was that the land was not "Crown land" within the meaning of the Crown Lands Act 1989 (NSW), for that definition excludes land dedicated for a public purpose.
The significance of the continuing operation of the 1891 and 1894 dedications was twofold. First, they were an essential element of the appellant's claim. That is because the definition of "claimable Crown lands" in s 36(1)(a) of the Aboriginal Land Rights Act 1983 (NSW) extends to "lands vested in Her Majesty that, when a claim is made for the lands under this Division … are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901" (emphasis added). It was common ground that the dedications answered the description of "dedicated for any purpose under the Crown Lands Consolidation Act 1913" within the meaning of that section. The Minister's concession to that effect was properly made, not merely in respect of the 1958 dedication under that Act, but also in respect of the 1891 and 1894 dedications under the Crown Lands Act 1884, having regard to the deeming provision in s 3 of the 1913 Act. Further, by reason of cl 1 of Pt 1 of Sch 8 of the Crown Lands Act 1989, all three dedications were taken to have effect as if they "had been made under" the Crown Lands Act 1989, with the result that they were amenable to the power of revocation in s 84 of that Act.
Secondly, elaborate submissions were made at first instance and on appeal as to the confining effect of the terms of the dedications, and the consequences of the revocation of the proclamations under the Crimes (Administration of Sentences) Act 1999. The present case was relevantly different from others which have turned upon the terms of dedications and reservations of Crown land. There could be no suggesting that what was occurring was contrary to the dedication, so as to make the activities occurring on the land unlawful in accordance with the principles stated in Bathurst and the Goomallee claim. But NSWALC submitted that upon the revocation of the proclamations under prisons legislation, anything which took place on the land by way of occupation had ceased to be "lawful", at least insofar as it was done by CSNSW. These submissions are addressed when dealing with grounds one and two of the appeal.

[15]

The decision of the primary judge

The primary judge identified two principal issues arising on the appeal: whether the land was in fact occupied at the time of the claim, and, if so, whether that occupation was lawful.
After summarising the legislative regime and the evidence, the primary judge addressed the first issue - whether the claimed land was occupied in fact: at [43]-[126]. Her Honour first summarised the Minister's submissions, NSWALC's submissions and the Minister's submissions in reply: at [43]-[79]. Her Honour then addressed the test for occupation, and summarised four decisions dealing with Crown land surplus to requirements: the Department of Education case, Wagga Wagga, Bathurst and Malabar Police Station. Her Honour then addressed the question whether occupation required a purpose, and accepted the Minister's submission that no purpose was required: at [92]. Alternatively, to the extent that it was necessary for occupation to be seen to serve a purpose, then the primary judge rejected NSWALC's submission that occupation must be for the purpose of a gaol, given the dedications, and accepted the Minister's alternative submission that "the purpose of the occupation was to hold the land pending a decision on its future use": at [93]. Her Honour added that such a purpose did not require substantial occupation in order to be fulfilled. Her Honour then said, at [93]: "That purpose is not unlawful for the Crown as owner of the land a matter which I consider extensively in relation to the second question below. The occupation at the date of claim to possess, control, secure and maintain the claimed land pending a further decision on its future use did not conflict with the dedication of land for the public purpose of use as a gaol."
Her Honour then gave reasons, by reference to the evidence, for her conclusion that the Minister had discharged his onus of establishing occupation as a matter of fact: at [96]-[122]. In particular, the primary judge recorded the Minister's submission that "the following indicia of occupation established maintenance and control of the claimed land pending a decision on its future at the date of the claim": at [103], and reproduced the following nine matters said to have been established by the evidence: "(a) 24 hour on-site security was maintained; (b) the premises on the claimed land were kept locked; (c) water supply to the claimed land was maintained; (d) electrical supply to the claimed land was maintained; (e) sewerage services to the claimed land were maintained; (f) there was a continuing contract for the maintenance of essential services and any emergency maintenance at the claimed land; (g) approximately every week, 8 to 15 CSO workers attended the claimed land, including replacement of the sprinkler system [sic]; (h) gardening tools and implements were stored on the claimed land for the use of CSO workers; and (i) members of the public wanting to visit the gardens sought permission from CSNSW and/or the on-site security personnel." Those "indicia" corresponded to the matters relied on in the Minister's Statement of Facts and Contentions to establish occupation.
NSWALC submitted before the primary judge that the evidence did not sustain findings in accordance with the "indicia of occupation" referred to above. The way in which the primary judge resolved those submissions is the subject of several grounds of appeal.
In a separate section, her Honour dealt with whether part of the land might be claimable, and rejected it: at [123]-[125]. This is relevant to ground nine.
Her Honour then addressed the second issue, whether the occupation was lawful within the meaning of s 36(1)(b), at [127]-[169]. As had been foreshadowed at [93], her Honour concluded that the Crown could lawfully occupy the land it owned so long as it did not use the land for a purpose contrary to the dedications: at [164]. Her Honour considered that statutory authorisation to undertake activities on land was not required, so long as the activities fell within the Crown's prerogative power and were not prohibited by statute. Finally, her Honour concluded that CSNSW could occupy the land, rejecting NSWALC's submission that the only function of CSNSW was the carrying out of functions under the Crimes (Administration of Sentences) Act, which no longer applied to the land at the time the claim was lodged. This second section of her Honour's reasons is the subject of grounds one and two.

[19]

Ground four - no shifting of the onus

NSWALC submitted that what precisely had occurred on the land was a matter peculiarly within the knowledge of Corrective Services, and could and should have been described by way of direct evidence. It was submitted that the approach of the primary judge involved a shifting of the evidentiary burden to the Land Council, and that that involved an error of law. I do not agree.
The documents demonstrated the presence of one and two, later one, security guards on the site 24 hours a day 7 days a week. The primary judge explicitly relied upon a process of inferential fact finding, rather than the discharging of an onus. The primary judge formed the view that it was reasonable to infer that the reference to "static guards" did not mean that the guard stood in the one place at all times, but rather was in contrast to a mobile security service. The fact that direct evidence could have been given of that does not mean that it was inappropriate for the primary judge to infer that fact from the contemporaneous documents tendered. Still less does it mean that there has been any shifting of an evidential burden such as to give rise to an error of law.
The primary judge used similar reasoning, which was the subject of similar submissions on appeal, in relation to a contract for the maintenance of the gaol building (and other buildings throughout New South Wales). The evidence made it clear that the contract related only to the buildings, not the grounds, and that the contractor (ProGroup Management Pty Ltd) had been asked, at around the time the decision to close the gaol was announced, to reduce the level of service provided. The primary judge recorded at [24]: "During November 2011 to March 2012 ProGroup continued to perform work at Berrima Correctional Centre but on a reduced service delivery model compared to what had been previously arranged. This reduced service delivery model was for work to be conducted on a 'when needed' basis. That is ProGroup remained engaged by CSNSW in relation to Berrima Correctional Centre. However, rather than performing services on a regular basis, ProGroup only conducted work when requested by CSNSW".
Once again, that appears to have been uncontroversial. NSWALC submitted that the existence of the contract did not prove actual occupation, that the evidence suggested that there had only been a single visit in November 2011 to test a fire panel, and that this fell well short of occupation in fact to more than a notional degree.
The primary judge relied on what had been said in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69 at [39]. In light of the nature of NSWALC's submission in this appeal, it is as well to reproduce that paragraph from Macfarlan JA's judgment, and the passages immediately preceding and following it, in full (but with citations omitted): "38. That leaves remaining as the only reasonable inference available that the Ministers made the grants for the purpose of having the land maintained to facilitate its use in the future for 'public requirements'. The various obligations imposed upon the grantees (see [9] and [10] above) appear to have been conducive to that end. The question for the Land and Environment Court was not (and for this Court is not) whether those provisions would have had that effect. The question was instead one for the Ministers. The question for the Land and Environment Court was simply whether it may be inferred that that was what the Ministers, rightly or wrongly, thought would be the case. 39. This conclusion does not depend upon the making of a presumption of regularity upon which the appellant Minister disclaimed reliance. Rather, it depends upon the drawing of a commonsense inference. The fact that the Minister, as he accepted, bore the burden of proving that the Permissive Occupancy and Licence were lawfully granted does not preclude the Court taking account of the respondent's failure to adduce evidence of, or identify in submissions, any sensible competing and alternative inference that could be drawn. It is in effect an example of a party failing, by evidence or argument, to discharge an evidential, as distinct from a legal or persuasive, burden that rests upon it in the particular circumstances of a case. 40. My conclusion therefore is that the primary judge erred in finding that the Minister had not established that the claimed lands were 'lawfully used or occupied'."
First NSWALC submitted that the passage in [39] was obiter dicta. I disagree. It was an essential strand in the reasoning supporting the conclusion, stated in [40], that there was error falling within this Court's limited appellate jurisdiction. The ratio decidendi includes any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his or her conclusion: Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; 80 NSWLR 226 at [41], applying the formulation of R Cross and J W Harris, Precedent in English Law (4th ed 1991, Clarendon Press) at 72.
Further, Bergin CJ in Eq agreed with the whole of Macfarlan JA's reasons. It follows that, contrary to NSWALC's submission, the passage was binding upon the primary judge. (The third member of the Court, Barrett JA, expressed short reasons of his own, concurring in the orders proposed by Macfarlan JA. At [57], he too referred to "the absence of evidence indicating any other purpose" in more readily reaching a conclusion that the land was lawfully used or occupied.)
Secondly, NSWALC made no application for that aspect of Limbri to be overturned. This Court will only depart from one of its earlier decisions with caution, when compelled to the conclusion that the earlier decision was wrong: see the decisions collected in DPP v Hilzinger [2011] NSWCA 106; 80 NSWLR 629 at [43]. In my view, far from being convinced that that aspect of Limbri is clearly wrong, it is clearly correct.
NSWALC submitted that error was disclosed in the statement by the primary judge that the Minister was "not required in proceedings of this type to establish a compelling case before an evidential burden shifts to the NSWALC": at [97]. It submitted that "the evidential burden cannot 'shift' to the applicant when s 36(7) is clear that it is the Minister who must 'satisfy the Court' the land is not claimable". These submissions must be rejected. There is nothing special about s 36(7). It is merely an example of a statute which makes it clear which party bears the burden of establishing a particular matter (in this case, whether the land falls within the exceptions to the definition of "claimable Crown lands" in s 36). Such a provision does not preclude a court from drawing inferences. Nor does it displace the ordinary processes of fact finding. To paraphrase what was said by Heydon J in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [53], once the Minister (who bears the onus) has called "evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [the Minister's favour]", then the claimant Land Council will run a tactical risk if it chooses not to (or is unable to) adduce countervailing evidence.
True it is that the exceptions are to be construed narrowly, in light of the beneficial and remedial purpose of the Act: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665 at 674. But once again, that consideration does not bear upon the ordinary process of making findings by reference to the evidence and, to the extent necessary, inferences available from the evidence. There is nothing to suggest that the "appeal" granted to a land council by s 36(6) involves the finding of facts any differently from other civil litigation, save for the fact that the Minister bears the onus of proof. (The "appeal" is not an appeal in the strict sense of the term, but rather the first occasion by which a court exercising judicial power reviews an administrative determination: Bathurst at [211].)
NSWALC submitted that none of the senses of "evidential burden" used by Heydon J in Strong v Woolworths Ltd involved the drawing of adverse inferences from a failure to provide evidence. That submission appears to confuse two distinct ideas. It is not suggested that an adverse inference, in the sense associated with Jones v Dunkel (1959) 101 CLR 298, is to be drawn from the failure by a claimant Land Council to adduce evidence. However, it seems that the submission regards as an "adverse inference" any inference on the ultimate question which leads to a conclusion which is unfavourable to the claimant Land Council. That is not the sense in which the term "adverse inference" is used in this area.
There is a more general point. NSWALC's submissions reiterated its inability to adduce any evidence as to the occupation of the claimed land. For example, it was said that "in effect, the primary judge reversed settled principle, holding that the Minister, by adducing very slight evidence, shifted the onus to a party with no knowledge or capacity to respond."
NSWALC's submissions recalled what had been said by Lord Lowry in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283 at 300: "In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified."
Lord Sumption JSC, in Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415 at [44], adopted Lord Lowry's formulation, subject to one presently immaterial modification.
It may readily be accepted that at all times the onus rested with the Minister, and that the Minister was well-placed to adduce evidence of occupation. However, it is going too far to assert that the claimant Land Council had no knowledge or capacity to respond. It is to be recalled that it is the Land Council, by choosing to lodge a claim and in particular by selecting the timing of the lodgement of the claim, which determines the time at which it is to be determined whether or not the land is claimable Crown land. It is easy to contemplate ways in which a Land Council could assemble evidence of the use or occupation of land in the days, weeks or months leading up to the lodgement of a claim. It would for example have been possible for persons to visit the land in the days and weeks prior to the claim being made, and give evidence of what they observed. It would also have been possible to cross-examine the Minister's witnesses. NSWALC chose to do neither. It was entitled to approach its appeal in that way, and there may have been good reason to do so. Cross-examination to identify gaps in another party's affidavit evidence regularly causes them to be filled. However, contrary to NSWALC's submissions, there was undoubtedly capacity to respond, and to the extent that NSWALC had no knowledge of what occurred on the land, it was a consequence of it seemingly having taken no steps to investigate the matter.

[20]

Ground 5 - no findings unsupported by evidence or contrary to evidence

In support of ground five it was submitted that there was "no evidence that any guard was actually on site, or if so, what they did and where". Further, and separately, NSWALC was critical of a statement in [76] of the reasons of the primary judge that "at least one of the buildings was used by security guards". NSWALC said that that finding was not supported by any evidence and was contradicted by a "finding" in the same paragraph that the "buildings were not used".
The first aspect of NSWALC's submission understates the uncontested evidence. The evidence was that the State paid in excess of $100,000 for the provision of "static guards" at the "DCS Berrima complex" on two 12 hour shifts, 7 days a week. There was uncontroverted evidence that "the keys to the Berrima CC were issued to [ATMAAC] security". There was uncontroverted evidence that it was necessary for Mr Tate to obtain the keys from the security guard on most occasions when the interior of the gaol was to be mowed by offenders under his supervision. Further, the Minister adduced evidence that electricity, water and sewerage remained connected following the withdrawal of inmates, inter alia, "for the purpose of the security officers provided by [ATMAAC]"; that evidence was not challenged.
In those circumstances, the inference was available - indeed, to my mind it is irresistible - that there was a guard actually on site, although of course the extent to which he or she patrolled the land and entered all the buildings is not disclosed. But it is not necessary to go so far. It suffices to say that the foregoing refutes NSWALC's contentions that there was no evidence that any guard was actually on site, and that there was no evidence of what the guards did and where.
The second aspect of NSWALC's submission (written submissions, paragraphs 60 and 61) misstated the primary judge's reasons. The submission was that: "The primary judge 'inferred' (at [105]) that 'a guard was stationed at the land, in contrast to a mobile security service.' The primary judge then held: 'It is accepted that the buildings were not used. It is not correct that the buildings were never entered. There was 24 hour security so at least one of the buildings was used by security guards. The only inference that can be drawn is from human experience and the evidence reveals that they kept the keys.' The finding that 'at least one of the buildings was used by security guards' is not supported by any evidence. It is contradicted by the finding that the 'buildings were not used'."
The quote on which this submission is based is from [76] of the judgment, a paragraph which records the Minister's submissions, not her Honour's findings. As much is clear from the heading above [71] ("Minister's submissions in reply") and what was said in oral submissions (transcript, 6 May 2014, pp 34.37-44, 35.30-34).
Thus, although the submission that there was a contradiction was introduced by the words "the primary judge then held" (emphasis added), in fact the quote relied on by NSWALC is found 40 paragraphs earlier. Any force in NSWALC's submission falls away once it is realised that [76] of the reasons of the primary judge, said to contain the "finding", is in a section summarising the Minister's submissions in reply, and does not, when the judgment is read as a whole, contain any findings at all.
NSWALC advanced more elaborate submissions in relation to maintenance. There was in evidence a contract to provide maintenance services to 24 correctional centres throughout the State. During the period November 2011 to March 2012, there was evidence that the contractor "continued to perform work at the Berrima CC" but on a limited basis: "[T]his was in a reduced service delivery model to what had previously been arranged. This reduced service delivery model was for work to be conducted on a 'when needed' basis (that is ProGroup remained engaged by Corrective Services in relation to the Berrima CC, however, rather than performing work on a regular basis, only conducting work when requested by Corrective Services)."
The primary judge found that there was "specific evidence of only one visit before the date of claim" in relation to the fire management service: at [113]. NSWALC submitted that, notwithstanding that finding, her Honour's earlier statement that "invoices were received and payment was made under that contract" (at [106]) was a finding without any evidentiary basis, because only one service report was provided prior to the date of claim. NSWALC's submission focussed on the plural "invoices". But the submission ignored the fact that in the immediately following paragraph, her Honour referred to "the single report" and NSWALC's criticism of that report "as not establishing this service as a permanent activity". At most there is an infelicitous use of language in her Honour's reasons. This is far distant from identifying vitiating error of law. It is to be recalled that "the determination of facts by a reasoning marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law": Azzopardi v Tasman UEB Industries Ltd at 156-157.
For those reasons, I reject the challenges to the findings of fact made by the primary judge.

[21]

Grounds three, six, seven and eight

Ground three asserted error on a question of law by the primary judge accepting that occupation for the purpose of holding land pending a decision on its future use was capable of constituting lawful occupation, and then (further) legal error in assessing whether the land was occupied by reference to such purpose. NSWALC stressed that although the land remained dedicated for "Gaol Site (extension)" and "Gaol Purposes", the buildings had been decommissioned, vacated and "mothballed" and the use of the land as a prison had ceased with no new use having been identified. NSWALC criticised the assessment of occupation by the primary judge through the prism of holding the land pending a decision on its future use, particularly insofar as it was submitted by the Minister and accepted by the primary judge that such a purpose was one "that does not require substantial occupation in order to be fulfilled": at [93]. NSWALC submitted that the correct approach required an assessment of the activities occurring on the land by reference to the purpose of its (extant) dedication, and said that the approach adopted by the Minister was the same as that which had been described by Mason P as "self-levitating" in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (Wagga Wagga CA) [2007] NSWCA 281; 157 LGERA 18 at [55]. It said that surplus Crown land is "precisely the type of land which may be expected to be claimed".
The first difficulty with this submission is that there was, on any view, evidence of regular use of the land surrounding and within the gaol buildings by offenders serving Community Service Orders - groups of between seven and 14 participants on every weekend in February 2012, mostly on both Saturday and Sunday, for around five hours each day. Although NSWALC submitted that "the CSO workers were all occasional visitors to the land, they didn't occupy the land", I see no error, let alone an error of law, in the primary judge relying on the presence of offenders serving Community Service Orders on weekends as sustaining a factual finding of occupation. It was not the case that the land had ceased to be used for the purposes of punishment of offenders, and all that was occurring on the land was that it was "mothballed" pending a decision as to its future use.
That is sufficient to decide this ground of appeal, and it is not necessary to express a concluded view on the status of the reasoning of this Court in Wagga Wagga CA. However, I am inclined to reject NSWALC's submission based on what Mason P had said about the "self-levitating" approach of accepting acts preparatory to a sale as amounting to lawful use (or occupation). It is to be recalled that Giles JA differed from Mason P in this respect. His Honour said at [65]: "The use of land to accommodate public servants can include its sale if, for example, the government department has outgrown the accommodation and there is sale of the land and purchase of other land with a prompt transition. That is, a decision to sell land and steps taken to do so can be part of its use; but on the other hand, if land is held for a period unused, and then sold, the sale is antithetical to use and itself will not suffice for use of the land."
True it is that Tobias JA agreed with the President's reasons, such that if the matter were left there, those reasons bind courts at first instance and would be followed by this Court absent a compelling reason to the contrary. But the matter has not been left there. Although the High Court dismissed the Minister's appeal in Wagga Wagga, it did so narrowly, expressly refraining from deciding whether there are steps taken on land in preparation for its sale which could constitute use or occupation of the land: at [77]. The joint judgment considered the steps that had been taken on the land, and found that nothing was being done on the land when the claim was made or for some considerable time beforehand, save for some transitory visits by a surveyor and a real estate agent: at [76]. On one view, which I presently favour, the approach taken by the joint judgment is inconsistent with what had been said by Mason P with the concurrence of Tobias JA (for on the approach of the latter, no regard would be had at all to the visits by the surveyor and the real estate agent) and is consistent with what was said by Giles JA.
All of that said, the foregoing was not the subject of submissions and is not necessary to resolving this ground of the appeal.
Ground six asserted an error on a question of law in "effectively holding (at [113], also [114]) that 'CSNSW exercising control over the claimed land in order to maintain it' was capable of amounting to occupation within the meaning of s 36(1)(b)". This ground is readily addressed, because it does not fairly characterise the reasoning of the primary judge.
At [113], her Honour said: "I agree with the Minister that the various activities should be considered collectively rather than individually. When this is done it is not accurate to describe the premises as locked up and abandoned. It is true to say the maintenance visits were likely to be of short duration and in the case of the fire management service there is specific evidence of only one visit before the date of claim. These activities of security and maintenance for the gaol buildings, provision of services as well as grounds maintenance should be assessed as being part of CSNSW exercising control over the claimed land in order to maintain it."
First, this paragraph was a response to, and a rejection of, the submission made by NSWALC that the land was effectively abandoned. Secondly, as is apparent from the first sentence ("considered collectively") and the last sentence ("assessed as being part of CSNSW exercising control") it is clear that her Honour was relying upon the limited security and maintenance carried out as but part of the facts on which a conclusion of occupation would be grounded. That reflects the correct approach, which is to look at all of the acts taking place on the land in their totality. Certainly, it discloses no error of law. Thirdly, if this ground is to be read as based on the proposition that the acts of security and maintenance by themselves cannot amount to lawful occupation, then I would adopt what was said by her Honour at [114]: "When assessed as a whole all the activity taking place at the date of claim was more than nominal and was not insubstantial, being directed to the maintenance of the claimed land pending a decision about its future use. The NSWALC's submissions seek to disaggregate the activities to minimise their significance."
Finally, NSWALC submitted that "in fixing upon whether the claimed land was 'abandoned' her Honour failed to consider whether it was in fact 'occupied'".
I disagree. The submission cited (in footnote 62) two paragraphs, [76] and [113]. The former was a fair summary of the Minister's submissions in response to NSWALC's submission that the land had been abandoned. The latter, which is reproduced above, represents part of her Honour's reasoning, reflecting an acceptance of the Minister's submissions and a rejection of NSWALC's. Given the way in which this aspect of the case had been advanced, it is understandable that her Honour's reasons are so expressed, but it is incorrect to characterise them as "fixing" upon the question of whether the land was "abandoned". Read as a whole, her Honour addressed the submissions advanced by the parties and then turned to the question posed by the Act by reference to the entirety of the evidence before her.
Ground seven asserted that there was error in law in concluding at [113]-[114] and [125] that there was actual occupation of the claimed land by CSNSW "when the facts found were only capable of constituting constructive occupation". That ground is readily rejected. It suffices to observe that the findings of fact included a 24 hours a day, 7 days a week presence of security on the site, retained by the State, who kept the buildings locked, coupled with regular visits on Saturdays and Sundays by offenders under the supervision of a CSNSW officer. Those findings alone sufficed to sustain a finding of occupation.
Ground eight was not the subject of separate submissions. It asserted that the primary judge erred in law by "failing to undertake a qualitative evaluation of the acts, facts, matters and circumstances pertaining to the whole and each part of the claimed land". In part, that ground overlaps with ground 9, which is considered below. Otherwise, for the reasons already given, I consider that her Honour did undertake a qualitative evaluation of all the evidence before her. A mere complaint as to the outcome of the evaluation by the court at first instance is outside the scope of the appeal to this Court: Malabar Police Station at [57]-[58].

[22]

Ground nine - divisibility of claimed land

Section 36(7) of the Act empowers the transfer of part of a parcel of land claimed, if some but not the whole of the land the subject of a claim is not "claimable Crown lands". The Minister had contended at trial that the Act did not authorise a subdivision of an existing lot of land, but formally withdrew the submission, by written submission supplied after judgment was reserved, when the terms of s 4B(3)(d) of the Environmental Planning and Assessment Act 1979 (NSW) and s 23G(k) of the Conveyancing Act 1919 (NSW) were drawn to his attention by NSWALC. However, the parties' submissions during and after the hearing are helpful in identifying what precisely was in issue before the primary judge.
As formulated in its notice of appeal, NSWALC maintained that the primary judge erred on a question of law in failing to consider whether each part of the claimed land "including the decommissioned buildings and the areas other than where the fruit trees, rose bushes and gardens were located, was not claimable Crown lands". As refined in NSWALC's submissions, this ground reduced to a submission that there was error in failing to consider each of the four decommissioned buildings individually. However, NSWALC conceded, very properly, that no such submission had been advanced at trial. All that had been submitted was a single alternative submission that the buildings, considered collectively, should be transferred to it if the evidence relating to the gardens was held to amount to lawful occupation. NSWALC's alternative submission at trial was "[even if there were actual occupation by the CSO workers], there is no evidence capable of establishing any occupation of the decommissioned prison buildings".
That was the submission to which the primary judge directed attention at [123]-[125]. Her Honour found that the activities that established occupation, principally in the grounds and gardens, applied to the land as a whole, such that the entirety of the claimed land was occupied. Her Honour further considered that, if she were wrong about that, then the gaol buildings and surrounding gardens were "integrally related", not least because access to the former was through the latter. That conclusion on a fair reading is focussed upon the principal gaol complex, and ignores the fact that some of the buildings, notably the print room, had access directly from the road. But it was reasoning which reflected the limited nature of the alternative submission propounded at trial.
As a general principle, it is difficult to conclude that a court or tribunal has erred in law by failing to address an argument that was neither raised before the decision-maker nor addressed in the reasons: see Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; 206 LGERA 450 at [57]. I acknowledge that, consistently with what was held in Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [90], there may be reviewable error of law even where the parties have agreed on a particular approach, if that is contrary to some constraint binding the Court (in Kirk, error of law was found in the consensual dispensing with the rules as to competence and compellability of witnesses). However, considerations of this nature have no place in relation to ground nine (indeed, the contrary was not submitted). Both NSWALC and the Minister are regular, sophisticated litigants in s 36(6) appeals. It is for them to identify the extent to which it is asserted that part, as opposed to all, of a parcel of land amounts to claimable Crown land and should in the alternative be transferred to the council.
Even if this were an appeal by way of rehearing, I would strain to find appellable error in failing to deal with a submission of this nature that was not squarely advanced at first instance. This is not an appeal by way of rehearing. This appeal is confined to questions of law. I do not consider that there is appellable error within the limited scope of this Court's appellate jurisdiction in failing to deal individually with the buildings erected on the site, when no such submission was advanced at trial. Nor do I consider that there is any error on a question of law in her Honour's conclusion that the various activities to which the Minister pointed were related to the land as a whole.

[24]

Ground one

NSWALC's submission turned on the enactment by the Imperial Parliament of s 2 of the New South Wales Constitution Act 1855 (18 & 19 Vict c 54), which provided that "the entire Management and Control of the Waste Lands belonging to the Crown … shall be vested in the Legislature of the same Colony". (Here, and in what follows, I shall use the short titles authorised by the Short Titles Amendment Act 1896 (59 & 60 Vict c 14) to refer to imperial legislation.) NSWALC relied upon the distinction between title, on the one hand, and management and control, on the other, invoking what Isaacs J had said in Williams v Attorney-General (1913) 16 CLR 404 at 456: "The express statutory control of the sale and other disposal of the waste lands (sec. 43 of the Constitution) was transferred to the Colony not as a matter of title - as has been tacitly assumed - but as a matter of governmental function. It was given, not to the King in his Executive capacity, but to the legislature, which doubly evinces that it was not as a matter of title or property."
It was submitted that the extant dedications, for "Gaol Site (extension)" and "Gaol Purposes", did not of themselves confer any rights of management and control of the land on the Crown, and that after the proclamations under prisons legislation had been revoked (the last on 10 February 2012), Corrective Services lacked the requisite lawful authority to cause any actions to take place on the land.
Against this the Minister relied on the fact that the claimed land was held under the Real Property Act 1900 (NSW): "The 1855 constitutional reference to Williams and so on doesn't take the matter anywhere with submissions because there is this legislative consequence, legislative power which is provided for by definition by the legislature through the Real Property Act which gives the Crown the ability as owner to maintain the land and maintain it in such a way as it chooses to save for any restriction."
When pressed about Crown land not held under Torrens title, the Minister acknowledged that there might be other answers, but was not in a position to assist the Court.
I cannot accept NSWALC's submission. Nor can I accept the Minister's response to it. I shall deal with the latter first, because it is easier.

[25]

Torrens title did not make occupation lawful

The Minister's submission was that the status of the land as "claimable Crown land" altered in around 2009 when it was brought under the Real Property Act as a "Crown land conversion". The facility to do so is relatively recent, as Beazley JA explained in Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 at 469, following amendments which took effect in 1981 made by the Real Property (Crown Land Titles) Amendment Act 1980 (NSW).
True it is that bringing land under the Torrens system alters some incidents of a landowner's title (for example, a third person asserting an interest in the land will have to satisfy an exception to indefeasibility, and the defrauded landowner may have a right to compensation from the Torrens Assurance Fund). The estate of the registered proprietor is that stated on the register: Real Property Act 1900 (NSW), s 42, and title to the land is of course vested in the registered proprietor by the fact of registration: Breskvar v Wall (1971) 126 CLR 376 at 385-386; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149 at [20] and [53]. But those matters distract from the self-evident truths that the owner of land not held under Torrens title remains the owner of land after the land is brought under Torrens title, and that irrespective of whether title to land derives from the Real Property Act, the fact that the Crown is the owner is an essential integer in the claimant Land Council's claim.
The proposition advanced by NSWALC is that only if there is statutory authority for the activities taking place on the land may it be concluded that the occupation was lawful. The fact that title is conferred under the Real Property Act does not say anything about the lawfulness of the activities taking place on the land. As Basten JA said in Bathurst at [225], by reference to earlier decisions including Daruk: "[T]he legal status of the Crown as the holder of the land (whether by way of radical title, fee simple or other interest), being a precondition to land being claimable, must be treated as insufficient to constitute lawful use or occupation, even though it may carry with it a right of control and, possibly, statutory obligations attaching to land ownership."
The Minister's reliance on the claimed land being held under Torrens title is not an answer to NSWALC's submissions.

[26]

The effect of s 2 of the 1855 Imperial Act

I turn to NSWALC's submissions. The parties proceeded on the assumption that s 2 remained in force. So far as I can see, s 2 has not been repealed expressly, either by the Parliament at Westminster, or by the New South Wales Legislature, which had power to do so at the latest upon enactment of the Australia Acts 1986 (Cth) and (UK). I shall make the same assumption as the parties, although it strikes me that an argument might reasonably be made that the 1855 Imperial Act is no longer in force. (Of course, the 1853 Constitution Act (the bill which passed through the colonial Legislative Council in 1853 and to which assent was given in 1855, which was a schedule to the 1855 Imperial Act), was repealed no later than 1902, by s 2(1) of the Constitution Act 1902 (NSW). One possible basis for concluding that s 2 of the 1855 Imperial Act has been impliedly repealed turns on the fact that, following the commencement of the Australia Acts 1986 (Cth) and (UK), s 34A of the Interpretation Act 1987 (NSW) in effect requires treating statutes such as the Constitution Act 1902 (NSW) and the Crown Lands Act 1989 (NSW) as being capable of impliedly repealing s 2.)
The essential purpose of s 2 of the 1855 Imperial Act was to confirm that it would henceforth be the colonial legislature, not the imperial government, which regulated dealings with the "waste lands of the Crown". The context was summarised shortly by Barwick CJ in New South Wales v The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 at 369: "[T]he control of the disposal of the unalienated lands in the colonies was long retained by the Imperial government for Imperial purposes. The Imperial authorities, apart from any other matter of policy, desired to use part of the proceeds of the disposal of the waste lands to assist the financing of migration from England to the colonies. Indeed, control of the unalienated land may be said to have been wrested by the colonists from the Imperial authorities by continued argument and protestation. However, in July 1855, nearly seventy years after the first settlement, the Imperial Parliament passed 'an Act to repeal the Acts of Parliament now in force respecting the Disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies' which placed, or enabled the placement of, the control of the disposal of such waste lands in the hands of the legislatures of the colonies."
So much is well-known. In order to assess NSWALC's submission based on s 2, it is necessary to explain in more detail why the 1855 Imperial Act was needed, and what other legislation was enacted by the imperial Parliament on the same day.

[27]

Local constitutions enacted pursuant to the Australian Constitutions Act 1850

The Australian Constitutions Act 1850 (13 & 14 Vict c 59) authorised the creation of a new local Legislature with power to make laws for the peace, welfare and good government of the colony. However, such laws were not, inter alia, to "interfere in any Manner with the Sale or other appropriation of the Lands belonging to the Crown within any of the said Colonies, or with the Revenue thence arising": s 14. The existing colonial Legislative Council issued a "declaration, protest and remonstrance" in 1851 which "expressed objection to the 'pernicious Land Sales Act', sought control over waste lands and the revenue from their sale": A Twomey, The Constitution of New South Wales (2004, Federation Press) at 8. In 1853, a draft Constitution bill was passed through the Legislative Council and numbered 17 Vic No 41. The bill was reserved by the Governor. The details are described by A Melbourne, Early Constitutional Development in Australia (1963, University of Queensland Press). Of present relevance is the fact that, contrary to the proviso in the Australian Constitutions Act, the draft Constitution proposed to include the following provision: "Subject to the provisions herein contained, it shall be lawful for the Legislature of this colony to make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown within the said colony."
That reflected what had been intimated by the new Secretary of State for the Colonies, Sir John Pakington, who had replaced Earl Grey. Gold had been discovered in New South Wales and Victoria in 1851. Sir John Pakington's despatch in 1852 has been summarised thus: "He placed particular emphasis upon the discovery of gold and its stimulation of the population, wealth and prosperity of the colonies. The British Government was aware that the financial resources existed within Australia to give substance to threats to declare independence. Pakington agreed to the transfer of the administration of the wastelands of the Crown to New South Wales, once constitutional reform had taken place": A Twomey, The Constitution of New South Wales, at 10.
Although certain provisions from the 1853 Bill were deleted, ultimately the Westminster Parliament was amenable to the 1853 Constitution. The provision referred to above became s 43 of the Schedule to 18 & 19 Vict c 54, and s 1 of the same Act made it lawful for her Majesty to assent to it.
Section 2 of the New South Wales Constitution Act 1855 provided that, from the time the Act and the 1853 Bill commenced, two things would happen. 1. First, "so much and such Parts of the several Acts of Parliament mentioned in the Schedule (2) of this Act as severally relate to the said Colony of New South Wales, and are repugnant to the said reserved Bill, amended as aforesaid, shall be repealed". 2. Secondly, "the entire Management and Control of the Waste Lands 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, shall be vested in the Legislature of the said colony". The seventh of the seven Acts identified in Schedule (2) was the Australian Constitutions Act 1850.
The Victoria Constitution Act 1855 (18 & 19 Vict c 55) followed the pattern of the New South Wales Constitution Act (18 & 19 Vict c 54) - because that colony had likewise sought authority to deal with revenues from the waste lands of the Crown. In contrast, the constitutions proposed by the colonies of South Australia and Van Diemen's Land respected the limits in the Australian Constitutions Act 1850 concerning the waste lands of the Crown. To place those colonies on the same footing as New South Wales and Victoria, the Imperial Parliament enacted, also on 16 July 1855, the Australian Waste Lands Act 1855 (18 & 19 Vict c 56) which in s 5 empowered the Legislatures of Van Diemen's Land and South Australia to "regulate the sale and other disposal of the waste lands of the Crown", notwithstanding earlier imperial legislation precluding them from so doing.
As is plain from the events immediately prior to 1855, and which may also be seen in the reasons of Crennan J in Rowe v Electoral Commissioner [2010] HCA 46; 243 CLR 1 at [336]-[342], the economic independence of the Australian colonies brought about by the discovery of gold was an essential aspect of the introduction of responsible government.

[28]

The construction of s 2 of the 1855 Imperial Act

NSWALC's primary submission was that s 2 of the 1855 Imperial Act denied to the Crown any prerogative or non-statutory powers with respect to the waste lands of the Crown.
That submission stands or falls on the construction of s 2. As a matter of construction, s 2 does not bear the legal meaning for which NSWALC contends. That is so for these reasons.
First, s 2 was on any view primarily directed to empowering the newly constituted Legislatures to do that which they could not do by reason of the Australian Constitutions Act 1850. Section 2 served the same function as s 5 of the Australian Waste Lands Act 1855 enacted on the same day in respect of Van Diemen's Land and South Australia. There is nothing to suggest that the newly constituted colonies would operate on the basis that all executive action on Crown land would be unlawful unless authorised by statute. To the contrary, the section is best read as a response to the proposed conferral in the bill which passed through the colonial Legislative Council of legislative power to sell, let, dispose and occupy the waste lands of the Crown.
Secondly, a prerogative of the Crown will not be abrogated save by express words or necessary implication. That is settled law now: see Barton v The Commonwealth (1974) 131 CLR 477 at 488 (Barwick CJ), 501 (Mason J), 508 (Jacobs J). The same was true in 1855. In Woolley v Attorney General of Victoria (1877) 2 App Cas 163 at 167-8 it was said that "it is a recognised principle of the construction of statutes that the prerogative rights of the Crown can be affected only by express words or necessary implication". Section 2 does not contain sufficiently clear language to deprive the Crown of non-statutory rights to occupy land owned by it.
Thirdly, were there any doubt about that, it is removed once it is seen that s 2 expressly proceeds on the basis that it does not abrogate the prerogative rights of the Crown in respect of waste lands. The power vested in the colonial Legislature extends to appropriating the "Proceeds and Revenues ... arising from ... all Royalties, Mines and Minerals". An important aspect of the Crown's prerogative was the right to royal metals. Far from impliedly abrogating that prerogative, s 2 proceeds on the basis that it continued. The reference to royalties, mines and minerals necessarily includes a reference to the Crown's prerogative to royal metals.
NSWALC's submission is thus contrary to the body of law which holds that the Crown prerogative in respect of royal metals continued after 1855 and did not require separate statutory confirmation or preservation. Two examples will suffice (I do not intend to be exhaustive). In The Queen v Wilson (1874) 12 SCR (L) 258 at 269, Martin CJ referred to gold belonging to the Crown by the prerogative, and at 281, Faucett J said that "whenever a grant issues, all gold and gold mines in the land so granted are, by virtue of the royal prerogative, excepted or reserved even without express words".
NSWALC's submission also faces difficulties with the result and reasons in Cadia. The grants of land in question in that case had been made between 1852 and 1859 - both before and after s 2 came into force. The whole case was about how the Crown's prerogative in respect of gold and silver mines was treated.
French CJ referred in terms to the continuation of prerogative rights enjoyed by the Crown in the colonies at [30] and [50]. The joint judgment in Cadia at [69] quoted with approval what Griffith CJ had said in Colon Peaks Mining Co v Wollondilly Shire Council (1911) 13 CLR 438 at 443: "Before the Crown Lands Act 1884 (NSW) Crown grants of land in New South Wales did not usually contain any express reservation of minerals. Royal mines were, however, held to be reserved or excepted by the common law."
Thus Cadia proceeds on the basis that the Crown's prerogative with respect to royal metals remained in place after 1855. That has, more recently, been confirmed by statute. Section 379 of the Mining Act 1992 (NSW) provides that, "Except as expressly provided by this Act, this Act does not affect any prerogative of the Crown in respect of gold mines and silver mines."
For those reasons, s 2 did not perform the work required of it by NSWALC's submission. Section 2 confirmed that the newly reconstituted colonial Legislature had legislative power which it would otherwise have lacked because of the limitations imposed by earlier imperial legislation applicable to the colony. It did not impose a new restriction on executive power within the colony in relation to the wastelands of the Crown, making all activity unlawful unless there were statutory authority. There is no sound principle of construction supporting such a restriction, which in any event would be contrary to the express terms of s 2 insofar as it dealt with the revenue from royal metals mined from the wastelands of the Crown, which was premised upon the continuation of the Crown's prerogative rights.

[29]

A further response to NSWALC's submission

There is a further answer to NSWALC's submissions on ground one. At the time the claim was lodged, the land remained Crown land, subject to dedications which were deemed to have been made under the Crown Lands Act 1989 (NSW). Section 84 of the Act conferred a power to revoke those dedications (Windeyer J traced the provision back to s 105 of the Crown Lands Act 1884 (NSW) in Rutledge at 77). It seems clear that at the time the claim was lodged, steps were being taken, including with the local community and council, to determine the appropriate future use of the land. That included the possibility of revoking the existing dedications, thereafter dedicating or reserving the land and establishing a reserve trust in accordance with Part 5 of the Act. The Crown Lands Act 1989 provided that land could only be dedicated or reserved if it had first been assessed, unless the Minister was satisfied that it was in the public interest to dedicate or reserve the land without assessment and due regard was had to the principles of Crown land management: ss 85 and 91.
Carrying out those statutory functions would, inevitably, take time. The evidence disclosed that that was occurring at the time the claim was lodged. If, contrary to my earlier conclusions, there were need for separate statutory authority in order for the activities taking place on the land after the prison proclamations were revoked to be lawful, then there would be in my view implied statutory authority under the Crown Lands Act to maintain and secure the land for the time reasonably needed to perform the obligations imposed by that Act. I see no difficulty in the Crown Lands Act impliedly conferring power to maintain the land to the extent that that is necessary for the effective exercise of the power to assess the land pending the decision to revoke the dedication: cf Grassby v The Queen (1989) 168 CLR 1 at 17. Given the timeframes in this litigation, no question arises as to whether an excessive time has elapsed.

[30]

Ground two

Ground two was directed to whether CSNSW could lawfully occupy the land, and her Honour's reasoning in [165]-[168] that it could. I would dismiss this ground, for the following reasons.
First, this aspect of her Honour's reasoning was not material to the outcome of the appeal. The question posed by s 36 is whether the claimed land was, at the time the claim was lodged, lawfully occupied. It matters not whether the land is occupied by the Crown, or a statutory authority, or a private individual. If the Minister establishes that the land is lawfully occupied, then it is not claimable Crown land.
Thus, even if her Honour's reasoning disclosed error, it would not affect the outcome in this Court that NSWALC's appeal should be dismissed. It was not material or operative in the sense described by Basten JA in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [17] or Bathurst CJ in Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45 at [92]-[96]. An error of law must vitiate the operative determination before it will ground an appeal: see the authorities collected and analysed in Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 at [8]-[27] and [108]-[112].
Secondly, it is, in my view, highly artificial to speak of the lawful occupation by "Corrective Services NSW". As NSWALC correctly submitted, "Corrective Services NSW" is not a legal person. The term is defined, in s 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) as follows: "Corrective Services NSW means that part of the Department of Justice comprising the group of staff who are principally involved in the administration of this Act."
Thus "Corrective Services NSW" is a collection of people, varying from time to time, defined by reference to their being "principally" involved in the administration of the Act. Neither CSNSW, nor the Department of which it forms part, is a legal person: Haines v Tempesta (1995) 37 NSWLR 24 at 30.
In my view, it is unhelpful to ask whether something which is not a legal person lawfully occupied land. The inquiry begs the question what does it mean for something other than a legal person to occupy land? A similar difficulty arises in relation to applying legal doctrines to an unincorporated association. Viscount Simonds referred to "the artificial and anomalous conception of an unincorporated society which, though it is not a separate entity in law, is yet for many purposes regarded as a continuing entity and, however inaccurately, as something other than an aggregate of its members" in Leahy v Attorney-General (NSW) [1959] AC 457 at 477. True it is that it is regularly necessary to deal with the question of what, in law, is a gift to an unincorporated association (prima facie, it is a gift to its members at the time, although that may be displaced in the particular circumstances by the words and context as well as by statute such as s 43 of the Succession Act 2006 (NSW)). But here there is no occasion to ask what is meant in law by lawful occupation by "Corrective Services NSW".
Thirdly, if it be necessary to attribute the acts constituting lawful occupation to a particular legal person, then it is conventional to say that the lawful occupation was by the Crown in right of New South Wales, which includes the Government of New South Wales: Crown Proceedings Act 1988 (NSW), s 3.
My reasons on these grounds diverge from those of the primary judge. Even so, it has not been shown that her Honour erred in law in concluding that there was lawful occupation and dismissing NSWALC's appeal.

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

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Legislation Cited (22)

Cases Cited (38)

Cited By (9)