GAGELER J. Berrima Gaol is located on land in the centre of the town of Berrima in New South Wales. The main gaol building is an imposing walled structure built in the nineteenth century from local sandstone. There are accompanying buildings and grounds which include lawns, fruit trees, a notable rose garden and a vegetable garden. "The State of New South Wales" is recorded in the Register maintained under the Real Property Act 1900 (NSW) ("the Real Property Act") as the proprietor of the land, as a consequence of which the State holds an "estate in fee simple" in the land by force of that Act.
Portions of the land, adding up to the whole, have long been dedicated for public purposes described respectively as "Gaol Purposes", "Gaol Site (extension)" and "Gaol Site (addition)". The earlier two of those three dedications were made in the 1890s under the Crown Lands Act 1884 (NSW) and the last was made in 1958 under the Crown Lands Consolidation Act 1913 (NSW). Each dedication was continued in force by the Crown Lands Act 1989 (NSW) ("the Crown Lands Act") as if made under that Act. Each dedication accordingly remains in force unless revoked by a Minister administering that Act acting in accordance with procedures for revocation set out in that Act. For so long as it remains in force, each dedication restricts use of the portion of the land to which it relates to use for the particular public purposes for which the portion was dedicated.
Berrima Gaol was in fact used as a gaol for a very long time. Most recently, it was operated as the "Berrima Correctional Centre", having been proclaimed a "correctional complex" and a "correctional centre" for the purposes of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Administration of Sentences Act"). Berrima Correctional Centre was operated by "Corrective Services NSW", the name given to the group of staff principally involved in the administration of that Act within the "Department of Justice and Attorney General" established as a Department of the Public Service of New South Wales by the Public Sector Employment and Management Act 2002 (NSW) ("the Public Sector Management Act").
That use of Berrima Gaol came to an end in November 2011, following a public announcement by Corrective Services NSW that Berrima Correctional Centre would be closed, its population of inmates relocated and its staff redeployed or offered redundancies. The proclamations of Berrima Correctional Centre as a correctional complex and a correctional centre for the purposes of the Administration of Sentences Act were subsequently revoked on 10 February 2012.
Beginning in November 2011 at the instigation of Corrective Services NSW and continuing through February 2012, the future use of Berrima Gaol was under consideration by the State Property Authority in consultation with the Crown Lands Division of the Department of Trade and Investment, Regional Infrastructure and Services. The State Property Authority was the corporation established by the State Property Authority Act 2006 (NSW). It had statutory functions which included managing, maintaining and disposing of property for the Government of New South Wales and for Departments of the Public Service and it was subject to the direction and control of the Minister for Finance and Services in the exercise of those functions. The Department of Trade and Investment, Regional Infrastructure and Services, like the Department of Attorney General and Justice, was established as a Department of the Public Service.
During the period in which the State Property Authority was considering its future use, Corrective Services NSW assumed continuing responsibility for Berrima Gaol. The buildings were kept locked. Corrective Services NSW entered into an arrangement with ATMAAC Pty Ltd for the presence of an on-site security guard 24 hours each day of the week. Electrical, water and sewerage services were kept on. Essential services and emergency maintenance of the buildings continued to be the subject of a pre-existing contract under which maintenance services were to be provided on request by ProGroup Management Pty Ltd. Corrective Services NSW also organised for groups of between eight and 15 offenders who were the subject of non-custodial community service orders imposed under the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSO workers") to be bussed from Campbelltown to Berrima each weekend to work in the grounds as part of their community service work. The CSO workers mowed the lawns and attended to the fruit trees, the rose garden and the vegetable garden.
That is how matters stood when, on 24 February 2012, the New South Wales Aboriginal Land Council ("the Land Council") made a claim for the land under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) ("the Land Rights Act"). The Minister for Regional Infrastructure and Services and the Minister for Primary Industries then had joint administration of the Crown Lands Act. Either therefore answered the description of the "Crown Lands Minister" for the purposes of the Land Rights Act. The Ministers acted jointly to refuse the claim under s 36(5)(b) of the Land Rights Act. From that refusal, the Land Council appealed to the Land and Environment Court of New South Wales under s 36(6) of the Land Rights Act.
No distinction was drawn in the appeal to the Land and Environment Court between the two Ministers who had jointly refused the claim. The single named respondent was styled the "Minister Administering the Crown Lands Act", corresponding to the "Crown Lands Minister" for the purposes of the Land Rights Act. Under s 36(7) of the Land Rights Act, that Minister bore the onus of satisfying the Court that the land was not "claimable Crown lands" within the definition in s 36(1) at the date of the claim.
The Minister did not contend before the Land and Environment Court that the land was not "vested in Her Majesty", was not dedicated under the Crown Lands Act or was any longer "used". The Minister sought to discharge the onus of satisfying the Court that the land was not claimable Crown lands at the date of the claim by satisfying the Court that the land was "lawfully occupied" within the meaning of s 36(1)(b). The Minister identified and relied on the cumulative effect of nine "indicia of occupation". They were: that 24-hour on-site security was maintained; that the buildings were kept locked; that the water supply was maintained; that the electricity supply was maintained; that sewerage services were maintained; that there was a continuing contract for the maintenance of essential services and emergency maintenance; that groups of CSO workers attended the land each week; that gardening tools and implements were stored on the land; and that members of the public wanting to visit the gardens sought permission from Corrective Services NSW or from an on-site security guard.
In the Land and Environment Court, Pain J found that the evidence led by the Minister was sufficient to establish each of the nine indicia on which the Minister relied. Her Honour went on to conclude by reference to those indicia that Corrective Services NSW lawfully occupied the land at the date of the claim. Being satisfied on that basis that the land was not claimable Crown lands at the date of the claim, her Honour dismissed the appeal from the refusal of the claim.
An appeal from the Land and Environment Court to the Court of Appeal of the Supreme Court of New South Wales is limited by s 57(1) of the Land and Environment Court Act 1979 (NSW) to an appeal on a question of law. On appeal by the Land Council from the decision of Pain J, the Court of Appeal rejected challenges to her Honour's findings of fact and held that her conclusion that Corrective Services NSW was in lawful occupation of the land at the date of the claim was not affected by legal error.
On further appeal by special leave to this Court, the Land Council advances three arguments challenging the Court of Appeal's holding that there was no legal error in the conclusion of Pain J. The first is that the conclusion that the land was occupied at the date of the claim was not open in light of the dedications which remained in force under the Crown Lands Act. The second is that Corrective Services NSW's occupation of the land was unlawful without statutory authority and that there was no statutory authority for Corrective Services NSW to occupy the land once the proclamations under the Administration of Sentences Act were revoked. The third, which is put in the alternative to the second, is that Corrective Services NSW lacked authority to exercise such non-statutory executive power to occupy the land as may then have existed. The arguments are best taken in turn.
Occupation
The Land Council's first argument - that the conclusion that the land was occupied was not open in light of the dedications which remained in force - has as its major premise that determination of whether land that is dedicated for public purposes is land that is occupied within the meaning of s 36(1)(b) of the Land Rights Act can only proceed by reference to those public purposes. The land on which Berrima Gaol stands could not have been occupied at the time of the claim, so the argument continues, because nothing then happening on the land had anything to do with the public purposes for which the land was still dedicated: what was then happening on the land did not constitute "occupation of a gaol".
The Land Council seeks support for its major premise in the decision of this Court in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("the Wagga Wagga Motor Registry claim case") and in the decisions of the Court of Appeal in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act ("Daruk") and in Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council ("La Perouse"). None of those decisions in truth provides that support.
The factual context of the decision in the Wagga Wagga Motor Registry claim case was that "subject to the possible qualification required by reference to some transitory visits to the land, nothing was being done on the land when the claim was made, and nothing had been done on the land for a considerable time before the claim was made". The plurality did not need to decide in that context whether "used or occupied" in s 36(1)(b) referred to one concept or two. The plurality commented that, on either view, "it is an expression that encompasses utilisation, exploitation and employment of the land". None of that was occurring.
The plurality in the Wagga Wagga Motor Registry claim case nevertheless acknowledged the reasoning of Kitto J in Council of the City of Newcastle v Royal Newcastle Hospital as illuminating consideration of when "acts, facts, matters and circumstances ... deprive the land of the characteristic of being 'not lawfully used or occupied'". The plurality went on to state in language derived from that of Kitto J that "a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land". The approach of the plurality was in those respects consistent with acceptance that the distinction drawn by Kitto J carefully between "occupation" and "use" of land when juxtaposed in a statutory context was apposite to s 36(1)(b).
Daruk was one of two early decisions of the Court of Appeal on s 36(1)(b) to which the plurality in the Wagga Wagga Motor Registry claim case referred without disapproval. The other was Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("the First Nowra Brickworks claim case").
The reasoning in Daruk drew heavily on the explanation of the concepts of occupation and use of land given by Bowen JA in Commissioner of Land Tax v Christie, which echoed the distinction drawn by Kitto J and which was made with express reference to Royal Newcastle Hospital. "Occupied" was explained to mean "'actually occupied' in the sense of being occupied in fact and to more than a notional degree", in respect of which "[p]hysical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant". "Used" was separately explained to mean "'actually used' in the sense of being used in fact and to more than a merely notional degree".
The reasoning in the First Nowra Brickworks claim case reiterated an important aspect of the concept of use of land as so explained. The holding was that whether land is used cannot be determined without taking into account the purpose for which the land is claimed to be used, in that "purpose will dictate the degree of immediate physical use required to decide whether [land is] actually used in more than a notional sense".
La Perouse was a unanimous decision of five members of the Court of Appeal reaffirming Daruk after the Wagga Wagga Motor Registry claim case. The Court of Appeal there reiterated that in the determination of whether land is used or occupied within the meaning of s 36(1)(b): transitory physical activities on land do not necessarily amount to either use or occupation; an evaluative process is to be undertaken in respect of the facts of each case; and the function of undertaking that evaluation (subject only to an appeal on a question of law) is that of the Land and Environment Court.
As I have explained, the explanations of the meanings of occupation and use given in Daruk, developed in the First Nowra Brickworks claim case in relation to use, and reaffirmed in La Perouse, were derived from and consistent with the distinction between occupation and use of land drawn by Kitto J in Royal Newcastle Hospital. There is utility in now recalling the terms in which that distinction was articulated and illustrated.
In Royal Newcastle Hospital, after noting that "conduct which satisfies the one word may also satisfy the other" and that the two words were for that reason unsurprisingly treated in some judgments as if they were interchangeable, Kitto J (with whom Fullagar J agreed) explained occupation and use of land to involve different concepts. The concept of "occupation" of land is that of "legal possession, conduct amounting to actual possession, and some degree of permanence". The concept of "use" of land is that of "physical acts by which the land is made to serve some purpose". The reasoning of other members of the High Court reflected the same distinction.
The reasoning of the Privy Council on appeal from the decision of the High Court in that case adopted that distinction and provided a useful illustration of it. The Privy Council was satisfied that the land in question - a large expanse of unfenced virgin bushland located adjacent to a sanatorium for tuberculosis patients - was used, despite having doubt about whether the land was occupied. The Privy Council explained its doubt:
"The hospital was undoubtedly in legal possession of the two hundred and ninety-one acres; for the simple reason that, where no one else is in possession, possession follows title. But legal possession is not the same as occupation. Occupation is matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering: see Pollock and Wright on Possession in the Common Law (1888) pp 12, 13. There must be something actually done on the land, not necessarily on the whole, but on part in respect of the whole. No one would describe a bombed site or an empty unlocked house as 'occupied' by anyone: but everyone would say that a farmer 'occupies' the whole of his farm even though he does not set foot on the woodlands within it from one year's end to another. Their Lordships have some doubt whether these two hundred and ninety-one acres were 'occupied' by the hospital, because they were not fenced in or enclosed in any way, and it is difficult to say they were so much linked with the hospital grounds as to form part of an entire whole."
The explanations in Daruk and in the First Nowra Brickworks claim case conform to the distinction spelt out by Kitto J and adopted and illustrated by the Privy Council in treating occupied and used as distinct in concept, albeit as overlapping in application. Land that is occupied will often be land that is used. But land can be occupied without being used, just as land can be used without being occupied.
The aspect of the distinction between occupation of land and use of land that assumes critical importance in the present case concerns the significance of purpose. Occupation of land can be occupation for a purpose, and the purpose for which physical acts are undertaken can inform whether those acts amount to occupation in fact. Unlike the concept of use, however, purpose is not intrinsic to the concept of occupation. Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken. To expand on the illustration given by the Privy Council, a farmer might remain in occupation of his farm by staying in his farmhouse and maintaining his fences despite having chosen to cease farming and despite not yet having chosen what else he might do with the farmland.
Had the question here been whether the land on which Berrima Gaol is situated was used at the date of the claim, an argument of the kind now advanced by the Land Council would have been unanswerable. The only lawful use to which the land could then have been put was use for the dedicated public purposes of a gaol. What was then happening on the land could not be described as use of the land for those purposes.
But the question tendered for the determination of the Land and Environment Court was not one of use. The question was one of occupation. Although Corrective Services NSW was not doing anything with the land at the date of the claim, Corrective Services NSW had a continuing presence on the land and remained active in asserting control over the land. The buildings were being kept locked and were not being allowed to fall into disrepair. There was someone on site 24 hours a day. The lawns and gardens were being maintained on a weekly basis. That state of affairs had been in place for some months and it could be expected to continue until the future use of the land was settled. The evaluative conclusion of the Land and Environment Court that the land was occupied was open.
The beneficial purposes of the Land Rights Act and the structure of s 36(1) suggest no oddity about that result.
The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation "rarely pursues a single purpose at all costs" and that "[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling".
Evidently employing "legislative intent" as an orthodox expression of the constitutional relationship that exists between an enacting legislature and a court doing its best to extract and articulate the meaning of an enacted text, the Supreme Court of the United States warned of the danger of overzealous or insufficiently nuanced purposive construction when it stated in Rodriguez v United States:
"Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law."
The beneficial purpose of the Land Rights Act is reflected in its recital and has repeatedly been acknowledged. Yet the beneficial purpose of the Land Rights Act says nothing of itself about how far the Act goes in pursuit of that purpose. In particular, it says nothing of itself about where the precise limits of claimable Crown lands are to be drawn in applying the detail of the definition in s 36(1). The principle that, as beneficial legislation, the Land Rights Act is to be construed beneficially does not mean that the most expansive view of claimable Crown lands must be taken whenever constructional choice arises in the application of that definition. The principle was not considered by the plurality in the Wagga Wagga Motor Registry claim case to provide relevant assistance in giving precise content to the words of s 36(1)(b). The principle provides no greater assistance in giving precise content to the same words here.
Placing s 36(1)(b) within the structure of s 36(1), it is apparent from s 36(1)(a) that land to which the application of s 36(1)(b) can fall to be considered is not limited to land that has been dedicated or reserved for a purpose. That land extends to land able to be lawfully sold or leased under the Crown Lands Act. Land able to be lawfully sold or leased under the Crown Lands Act is, by definition, land that is not dedicated for any public purpose. It is therefore apparent that the application of s 36(1)(b) to particular land is not tied by the structure of s 36(1) to such public purposes as for which the land might happen to be dedicated. Section 36(1)(b) mandates a stand-alone inquiry. It is also apparent that s 36(1)(c) is directed to the distinct and logically subsequent question of whether land, which may not currently be used or occupied at all, is land that is needed or likely to be needed for an "essential public purpose". Nothing in the inquiry mandated by s 36(1)(c), or by any other element of the definition of claimable Crown lands, can be read as limiting occupation of land within the meaning of s 36(1)(b) to occupation for public purposes for which that land is currently dedicated.
Lawful occupation without statutory authority
The Land Council's second argument - that occupation of the claimed land was unlawful without statutory authority - is founded primarily on the proposition that s 2 of the New South Wales Constitution Act 1855 (Imp) ("the Constitution Statute") operates to vest management and control of the land in the Parliament of New South Wales to the exclusion of non-statutory executive power.
The Land Council's reference to non-statutory executive power in this context is to the power or capacity which the Crown, as the executive branch of government, is recognised to have at common law. The argument makes no attempt to dice non-statutory executive power. Whether non-statutory executive power to occupy the land might be seen as an incident of the extraordinary power of executive governance fairly described by the traditional label "prerogative", or as an ordinary incident of "proprietorship", does not matter to the argument. The argument is simply that the power has been abrogated by statute.
Since the enactment of the Australia Act 1986 (Cth) under s 51(xxxviii) of the Commonwealth Constitution, the legislative power of the Parliament of New South Wales has included power to repeal or amend s 2 of the Constitution Statute. The Minister argues that the Parliament impliedly repealed s 2 by enacting s 6 of the Crown Lands Act, which the Minister argues "on its face, overtakes s 2". That argument is unfounded. There is no inconsistency. The later provision has not displaced or supplanted the earlier provision. For reasons to be explained, s 2 of the Constitution Statute and s 6 of the Crown Lands Act operate on altogether different planes.
The Attorney-General for Victoria, intervening, argues that conferral on the State of New South Wales of an estate in fee simple in the land by force of the Real Property Act was an exercise of legislative power of management and control of the land the result of which was to remove the land from the purview of s 2 of the Constitution Statute. The first part of that argument can be accepted, but the second cannot. For reasons again to be explained, s 2 of the Constitution Statute continues to operate in relation to the land.
The answer to the Land Council's argument is that the section does not confer legislative power to the exclusion of non-statutory executive power. Quite the opposite: the section confirms non-statutory executive power in the context of the system of responsible government ushered in by the Constitution Statute.
From the settlement of New South Wales in 1788, the Governor was authorised and empowered by the Crown to exercise non-statutory executive power to the extent and in the manner set out in Letters Patent. From 1823, the Governor was authorised and empowered by the Imperial Parliament to exercise legislative power for the welfare and good government of the Colony, and from 1828 the legislative power of the Governor was required to be exercised only on the advice of a local Legislative Council appointed by the Crown.
A New South Wales law promulgated in 1836 in the exercise of that legislative power recited that "Governors … and persons administering the Government of New South Wales" had from time to time been authorised and empowered by Letters Patent "to grant and dispose of the waste lands of New South Wales". For the avoidance of doubt, the law declared that past grants and conveyances were not invalid merely because they had not been executed under the public seal of the Colony.
Representative, but not yet responsible, government was established in New South Wales by the Australian Constitutions Act 1842 (Imp) ("the Australian Constitutions Act (No 1)"). The Legislative Council constituted under that Act was given authority "to make Laws for the Peace, Welfare, and good Government of the said Colony" subject to the presently relevant proviso "that no such Law shall ... interfere in any Manner with the Sale or other Appropriation of the Lands belonging to the Crown within the said Colony, or with the Revenue thence arising". The proviso reflected the influence on the Imperial Parliament at that time of the social theorist Edward Gibbon Wakefield, who advocated that colonial land should be sold at a substantial price and that the proceeds of its sale should be used to fund further emigration to the colonies.
Enacted barely a month earlier, the Australian Colonies Waste Lands Act 1842 (Imp) ("the Waste Lands Act") had instantiated the so-called Wakefield theory. That Act defined "Waste Lands of the Crown" to mean "any Lands situate therein, and which now are or shall hereafter be vested in Her Majesty, Her Heirs and Successors, and which have not been already granted or lawfully contracted to be granted to any Person or Persons in Fee Simple, or for an Estate of Freehold, or for a Term of Years, and which have not been dedicated and set apart for some public Use".
The Waste Lands Act provided for the alienation of "Waste Lands of the Crown" situated within the Australian colonies to occur only in accordance with the regulatory scheme set out in that Act. Under that regulatory scheme, alienation was to occur only as a result of conveyance by the Governor by way of sale at or above a specified minimum price. The Waste Lands Act went on to provide for the distribution of the gross proceeds of sale. Half of those gross proceeds were appropriated to be applied to the "public Service" of New South Wales in such manner as the Commissioners of the Imperial Treasury might from time to time direct. The other half were appropriated to be applied to defray expenses of emigration from the United Kingdom.
The Waste Lands Act contained a proviso to its restriction on alienation expressed in the following terms:
"Provided always, and be it enacted, That nothing in this Act contained shall extend or be construed to extend to prevent Her Majesty, or any Person or Persons acting on the Behalf or under the Authority of Her Majesty, from excepting from Sale, and either reserving to Her Majesty, Her Heirs and Successors, or disposing of in such other Manner as for the public Interests may seem best, such Lands as may be required for public Roads or other internal Communications, whether by Land or Water, or for the Use or Benefit of the aboriginal Inhabitants of the Country, or for Purposes of Military Defence, or as the Sites of Places of public Worship, Schools, or other public Buildings, or as Places for the Interment of the Dead, or Places for the Recreation and Amusement of the Inhabitants of any Town or Village, or as the Sites of public Quays or Landing Places on the Sea Coast or Shores of navigable Streams, or for any other Purpose of public Safety, Convenience, Health, or Enjoyment; and provided also, that nothing in this Act contained shall extend or be construed to extend to prevent Her Majesty, or any Person or Persons acting on her Behalf or under the Authority of Her Majesty, from fulfilling any Promise or Engagement made or hereafter to be made by or on the Behalf of Her Majesty in favour of any Military or Naval Settlers in the said Colonies respectively, in pursuance of any Regulations made by Her Majesty's Authority in favour or for the Benefit of any such Settlers."
Expressed as an exception to the legislatively imposed prohibition on alienation rather than as a legislative conferral of power, that proviso made clear that the prohibition against alienation imposed by the Waste Lands Act was not intended to affect the authority of the Governor and persons acting under his authority to exercise on behalf of the Crown non-statutory executive power to occupy, use and dispose of land for what can be described as public purposes. To the extent that an additional or subsidiary strand of the Land Council's argument that occupation of the claimed land was unlawful without statutory authority is founded on the proposition that the Waste Lands Act abrogated all non-statutory executive power to grant or assume any right of occupation of the waste lands of the Crown to which it referred, the argument is refuted by the terms of that Act.
From the beginning, and increasingly over the ensuing decade, the policy implemented by the Waste Lands Act was to be the source of tension between the Imperial Government and colonists in New South Wales. One of the first actions of the newly representative Legislative Council was to petition the Queen, the House of Lords and the House of Commons, calling for repeal of the Waste Lands Act and amendment of the Australian Constitutions Act (No 1) to place the management of waste lands belonging to the Crown and the proceeds of their disposal within the power of the Legislative Council. Those petitions were rejected by the Imperial Government in 1845.
The following year, the Australian Colonies Waste Lands Amendment Act 1846 (Imp) ("the Waste Lands Amendment Act") amended the Waste Lands Act to provide also for the lease or licence of "Waste Lands of the Crown", which it defined to mean described lands "which have not been already granted or lawfully contracted to be granted by Her Majesty, Her Heirs and Successors, to any other Person or Persons in Fee Simple, and which have not been dedicated or set apart for some public Use". The Waste Lands Amendment Act adopted the scheme of the Waste Lands Act in providing for the resulting "Rent or pecuniary Service" to be distributed in the same way as the gross proceeds of sale.
Very soon after the enactment of the Waste Lands Amendment Act in 1846, a "bold argument, which then had a political flavour" was put to, and rejected by, the Supreme Court of New South Wales in Attorney-General v Brown. The argument was advanced in response to an action for intrusion brought by the Attorney-General of New South Wales against a person who had engaged in mining coal the subject of express reservation from a Crown lease granted in 1840, two years before the enactment of the Waste Lands Act. The argument was that the Crown as represented by the Attorney-General did not have the legal possession necessary to found an action for intrusion for the reason "that the Crown has not and never had any property in the waste lands of the Colony - that is, any beneficial ownership or right to grant any of them without authority of Parliament". The conclusion firmly stated by the Supreme Court was:
"that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign's possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown."
In the course of explaining that conclusion, the Supreme Court noted the reference to the "Waste Lands of the Crown" in the Waste Lands Act. Of that reference, the Supreme Court said "[i]t will hardly be disputed, that by these words were meant all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor of such lands".
Attorney-General v Brown was very long afterwards overruled in Mabo v Queensland [No 2] to the extent that it held the Crown to be the absolute beneficial owner of all of the land in New South Wales from the time of settlement in 1788 and to the extent that (in disregard of Aboriginal inhabitants, their laws and their customs) it treated all land which had not been the subject of a grant from the Crown as unoccupied and having no other proprietor. The doctrine of the common law of Australia is now that what the Crown acquired at the time of "settlement" was "radical title" - "no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law" - and that "[a]bsolute and beneficial Crown ownership, a plenum dominium, was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown" either to grant an interest in land to another or to appropriate land to itself.
Momentous as Mabo [No 2] was in the development of the common law of Australia, its significance for those aspects of Attorney-General v Brown that are of present relevance is minimal. Given that the land in question had been the subject of the grant of a Crown lease from which the coal in question had been expressly reserved, it is difficult to see how the result in Attorney-General v Brown could have been different even if the view which was to prevail in Mabo [No 2] had been applied. What would have been different would have been the steps in the analysis leading to that result: instead of the grant and reservation being seen as the exercise by the Crown of a proprietary right which the Crown had as the original absolute owner of all land in New South Wales on and from settlement in 1788, the grant and reservation would have been seen as an exercise by the Crown of non-statutory executive power which had the consequence of creating rights of ownership in respect of the land in question, in the Crown and in the lessee, on and from the time of the exercise of that non-statutory executive power in 1840. Either way, the Crown as represented by the Attorney-General would still have had the possession necessary to found an action for intrusion.
The Australian Constitutions Act 1850 (Imp) ("the Australian Constitutions Act (No 2)") made no amendment to the Waste Lands Act or to the scope of the power conferred on the Legislative Council by the Australian Constitutions Act (No 1). The Australian Constitutions Act (No 2) did, however, grant permission to the Governor and Legislative Council to enact colonial legislation altering the constitution of the colonial legislature but not the scope of its legislative power. The procedural condition for the enactment of that legislation was that the Bill for the legislation had to be reserved for the signification of Her Majesty's pleasure and to be laid before the Imperial Parliament before that pleasure was signified.
To say that the Australian Constitutions Act (No 2) was not well received in New South Wales is an understatement; it provoked "a great crisis". The Legislative Council adopted in 1851 a "Declaration and Remonstrance against the New Constitution Act" recording its "deep disappointment and dissatisfaction" with the Australian Constitutions Act (No 2). Recording in the Declaration and Remonstrance that "[t]he exploded fallacies of the Wakefield theory [were] still clung to" and that "the pernicious [Waste Lands Act] [was] still enforced", the Legislative Council concluded by protesting, insisting and declaring, amongst other things: "[t]hat the Imperial Parliament has not, nor of right ought to have, any power to tax the people of this Colony, or to appropriate any of the monies levied by authority of the Colonial Legislature; - that this power can only be lawfully exercised by the Colonial Legislature"; "[t]hat the Revenue arising from the Public Lands, derived as it is 'mainly' from the value imparted to them, by the labour and capital of the people of this Colony, is as much their property as the ordinary Revenue, and ought therefore to be subject only to the like control and appropriation"; and "[t]hat plenary powers of Legislation should be conferred upon and exercised by the Colonial Legislature, for the time being".
The Declaration and Remonstrance was rebuffed by the Secretary of State for the Colonies in early 1852, but a resolution of the Legislative Council reiterating the same demands later in 1852 received a more conciliatory response from his successor. Then, in 1853, the Legislative Council adopted a Bill for a Constitution Act which had been drafted to give effect to those demands. Because the Bill went beyond the permission granted to the Governor and Legislative Council by the Australian Constitutions Act (No 2) to enact colonial legislation altering the constitution of the colonial legislature, further Imperial legislation was needed to authorise its enactment.
The upshot was the enactment by the Imperial Parliament not only of the Constitution Statute but also of the Australian Waste Lands Act 1855 (Imp) ("the Waste Lands Repeal Act").
The Constitution Statute authorised the Queen to assent to the Bill for what was to become the Constitution Act 1855 (NSW) ("the Constitution Act"), the text of which (slightly modified from that which had been adopted by the Legislative Council in 1853) was set out in a schedule to the Constitution Statute. The Constitution Act provided for the Parliament of New South Wales to have power "to make Laws for the Peace, Welfare, and good Government of the said Colony in all Cases whatsoever", adding for good measure that "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" and that "All Taxes, Imposts, Rates, and Duties, and all territorial, casual, and other Revenues of the Crown … from whatever Source arising within this Colony … shall form One Consolidated Revenue Fund, to be appropriated for the Public Service of this Colony".
Section 2 of the Constitution Statute relevantly provided in that context that (subject to a proviso of no present relevance) from the date of the proclamation of the Constitution Statute in New South Wales:
"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 Waste Lands Repeal Act was expressed to repeal the Waste Lands Act and the Waste Lands Amendment Act with effect from the date of proclamation of the Constitution Statute. The Waste Lands Repeal Act contained a savings provision to the effect that the regulations imposed by those Acts "respecting the Sale or other Disposal of the Waste Lands of the Crown" were to remain in force until the Parliament of New South Wales made other provision.
The Parliament of New South Wales made such other provision in 1861, when it enacted the Crown Lands Alienation Act 1861 (NSW) ("the Crown Lands Alienation Act") and the Crown Lands Occupation Act 1861 (NSW) ("the Crown Lands Occupation Act"). Defining "Crown Lands" to mean "[a]ll Lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple", the Crown Lands Alienation Act provided in s 3 that "[a]ny Crown Lands may lawfully be granted in fee simple or dedicated to any public purpose under and subject to the provisions of [that] Act but not otherwise" and that "the Governor with the advice of the Executive Council is hereby authorized in the name and on the behalf of Her Majesty so to grant or dedicate any Crown Lands". Adopting in substance the same definition, the Crown Lands Occupation Act regulated the renewal of existing leases on Crown lands.
Provisions similar in effect to s 3 of the Crown Lands Alienation Act have been a consistent feature of subsequent Crown lands legislation in New South Wales, just as they have been a consistent feature of Crown lands legislation in other States. Section 6 of the Crown Lands Act is the current incarnation. Those provisions have operated to displace non-statutory executive power within their fields of operation. The Privy Council in Cudgen Rutile (No 2) Pty Ltd v Chalk accepted as "fully established" the proposition that in Australian States "the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute". Together with subsequent statements of similar generality in the High Court, what was said in Cudgen Rutile (No 2) needs to be understood as a reference to the operation of provisions cognate to s 3 of the Crown Lands Alienation Act.
To understand the quite different operation of s 2 of the Constitution Statute, it is necessary to turn back to consider the significance which its language bore on 16 July 1855, the date of the proclamation of the Constitution Statute in New South Wales. Whereas the power to make laws for the peace, welfare and good government conferred on the Legislative Council constituted under the Australian Constitutions Act (No 1) had been expressly limited to exclude the enactment of laws concerning the sale or other appropriation of lands belonging to the Crown, the equivalent power to make laws conferred on the Parliament to be constituted by the Constitution Act, under the authority of the Constitution Statute, was expressly to extend to "all Cases whatsoever". This was a large, even dramatic, change in Imperial policy for which colonists in New South Wales had long campaigned: "[i]ndeed, control of the unalienated land may be said to have been wrested by the colonists from the Imperial authorities by continued argument and protestation".
Against the background of political struggle that had occurred, the principal concerns of which had been highlighted by the Declaration and Remonstrance, s 2 of the Constitution Statute served as a solemn and emphatic declaration by the Imperial Parliament of the scope of the legislative power that was finally being conferred on the Parliament of New South Wales. That legislative power was not to be relevantly constrained, whether by the paramount force of the Waste Lands Act and the Waste Lands Amendment Act or otherwise, but was to extend as declared by that section to "the entire Management and Control of the Waste Lands belonging to the Crown in the said Colony".
Section 2 of the Constitution Statute serving in that way to confirm the plenary scope of the legislative power of the Parliament, there appeared no reason to read its reference to the waste lands belonging to the Crown other than in the broadest sense of referring to all land in New South Wales which had not been the subject of a grant from the Crown as at 16 July 1855. That broad reading would eventually be confirmed by the High Court.
In the short term, however, the position was somewhat clouded by an opinion given by colonial law officers in 1862 and by a decision of the Supreme Court of New South Wales two years later in Attorney General v Eagar. Each contained statements linking the undefined reference to waste lands in s 2 of the Constitution Statute to the earlier defined meanings of waste lands in the Waste Lands Act and the Waste Lands Amendment Act. In so doing, they appeared to treat s 2 of the Constitution Statute as having the effect of taking land which the Crown had dedicated or set apart for some public use before 16 July 1855 outside the scope of the legislative power of the Parliament. That odd and restrictive reading featured prominently in argument in litigation which commenced with Attorney-General v Williams in the Supreme Court of New South Wales, and which wound its way through the High Court to the Privy Council between 1913 and 1915. It will be necessary to give some attention to that litigation after reflecting on what is for present purposes the critical aspect of s 2: that the section spoke only to the scope of legislative power.
If s 2 of the Constitution Statute spoke only to the scope of the legislative power of the Parliament of New South Wales, what of the scope of the non-statutory executive power of the Crown within New South Wales? The Constitution Statute did not address the non-statutory executive power of the Crown at all and the Constitution Act touched on it only to the extent of making provision for the appointment of public officers to be "vested in the Governor, with the Advice of the Executive Council, with the Exception of the Appointments of the Officers liable to retire from Office on political Grounds … which Appointments shall be vested in the Governor alone". The general understanding underlying the framing of the Constitution Act, to which that provision gave but a glimpse, was that its enactment would bring about "responsible government", the nature of which had been outlined in the Canadian context in the well-known report by Lord Durham in 1839.
In accordance with that conception of responsible government, non-statutory executive power no less broad as to its subject-matter than the legislative power exercisable by the Parliament would be exercisable by or on behalf of the Governor acting on the advice of the Executive Council, at least a majority of whom would in practice be Ministers and who would be members of and politically responsible to the popularly elected chamber of the Legislative Assembly as the Parliament. That conception was realised in practice. By the end of the nineteenth century, it had become constitutional doctrine.
An orthodox explanation was as follows:
"The essential features of Responsible Government as stated by Durham, and afterwards elaborated … were the division between imperial and local matters, and the giving over of the latter without reserve into the hands of the colonial legislature. Matters thus given over were to be administered by an Executive responsible to the Assembly. Imperial concerns on the other hand were to be retained absolutely in the control of the British Government; and in regard to these matters the Colonies were to remain mere dependencies. In accordance with this twofold division of powers, the functions of the Governor were to be dual. As regards Imperial matters he was to remain an Imperial officer responsible to the British Government, but as regards domestic affairs he was to assume a rôle comparable to that of a constitutional monarch."
The conferral of legislative power in that way brought with it corresponding executive power: "[a]s rights of self-government were conferred on each Colony exclusive rights of executive authority over matters within the ambit of the rights conferred became of necessity vested in the executive power of the Colony" to the effect that "[w]ithin the limits of self-government conferred by its Constitution the executive power of each self-governing Colony, though subject to control by Imperial enactment, [became] as independent of the executive power of the Empire as it [was] of the executive power of any Colony of the Empire".
The result was that, through "the silent operation of constitutional principles", there emerged in each Colony a distinct Executive Government of the Colony, conventionally referred to as "the Crown in right of the Colony", which on federation was to become the Executive Government of the State.
Within the twofold division of the executive responsibilities of the Governor of New South Wales ushered in by the advent of responsible government, management and control of what s 2 of the Constitution Statute described as the waste lands belonging to the Crown fell within that hemisphere of responsibilities in which executive power was to be exercised by or on behalf of the Governor on the advice of his New South Wales Ministers. The entire management and control of those lands came, in short, to be exercisable only by the Executive Government of New South Wales subject only to legislation enacted by the Parliament of New South Wales.
Doubt about that, if there ever could realistically have been any, was dispelled in 1913 by the decision of the High Court in Williams v Attorney-General for New South Wales, affirmed by the Privy Council two years later.
The litigation in Williams v Attorney-General for New South Wales was prompted by a decision of the Executive Government of New South Wales (that is, of the Cabinet, comprised of Ministers responsible to the Parliament) that Government House (which had from 1900 until 1912 been occupied as the Sydney residence of the Governor-General) and its grounds would be opened to the public and that its stable would be turned into an academy of music. The land in question had been set apart by the Crown as a residence for the Governor in the first half of the nineteenth century. Informants in a relator action in the Supreme Court of New South Wales relied on the narrow view of the reference to waste lands belonging to the Crown in s 2 of the Constitution Statute supported by Attorney General v Eagar to argue that the Parliament would not have power to alter the use of the land and that "a fortiori the Government could not". The Supreme Court, accepting that argument, was persuaded to declare that the land was "vested in His Majesty the King dedicated to the public purpose of a residence for the Sovereign's representative in New South Wales, and that the action or concurrence of His Majesty's Imperial Government is a necessary condition precedent to their diversion from that purpose". The Supreme Court also issued an injunction which enjoined the defendant "as nominal defendant for and on behalf of the Government of New South Wales and the officers and servants of the Government from any unauthorised interference with that purpose".
The High Court, on appeal, and the Privy Council, on further appeal, each held that the proceeding in the Supreme Court was irregularly constituted. That alone justified setting aside the relief that had been granted. But each also held the informants' arguments to lack merit. The reference to waste lands belonging to the Crown in s 2 of the Constitution Statute, a majority of the High Court held, did not have the restricted meaning in the Waste Lands Act and the Waste Lands Amendment Act. In the words of Barton ACJ, the reference was simply to "such of the lands of which the Crown became the absolute owner on taking possession of this country as the Crown had not made the subject of any proprietary right on the part of any citizen". Those lands fell within the power of the Executive Government of the State to manage and control, subject to legislation enacted by the Parliament of the State. If there was no relevant State law, there was no relevant restriction on the power of the Executive Government. The result, again in the words of Barton ACJ, was that "the Executive Government of [the] State [was] entitled to put the house and grounds in question to any use not expressly or impliedly forbidden by the terms of its Crown Lands Acts or any other of its laws".
The Land Council draws attention to a statement of Isaacs J to the effect that the management and control of waste lands was given under the Constitution Act "not as a matter of title" but "as a matter of governmental function" and "not to the King in his Executive capacity" but "to the legislature". Plainly, like that of Barton ACJ, the reasoning of Isaacs J proceeded on an unquestioned acceptance of the view stated in Attorney-General v Brown that the Crown had become absolute owner of the land at least from the time of settlement in 1788. His point was that the Constitution Act was concerned with the conferral of legislative power and was not concerned to alter that ownership. The point was not made in the context of suggesting that the conferral of legislative power operated to exclude executive capacity. That is made clear by his later specific discussion of the effect of responsible government. He referred in that context to the "uncontrolled management of all land occupied by … public buildings" in New South Wales and said "[c]learly that passed, not as specifically given over to the control of the legislature, but as part of the governmental means and property taken over by the self-governing community".
Williams v Attorney-General for New South Wales, no less than Attorney-General v Brown, has been overruled by Mabo [No 2] to the extent that it proceeded on the basis that the Crown had been the absolute owner of all of the land in New South Wales from the time of settlement. But also like Attorney-General v Brown, the result in Williams v Attorney-General for New South Wales would not have been different if the view which was to prevail in Mabo [No 2] had been applied. The reference to waste lands belonging to the Crown in s 2 of the Constitution Statute would simply have been read, as it is to be read now, as a reference to all land that had not been the subject of the grant of a proprietary right from the Crown. The power of the Executive Government of the State, to manage and control that land subject to legislation enacted by the Parliament of the State, would not have been couched in terms of a proprietary right. That power would have been couched, as it is sufficiently couched now, simply as within non-statutory executive power.
No argument was put to the High Court in Williams v Attorney-General for New South Wales to the effect that s 2 of the Constitution Statute abrogated executive power. But the outcome, and the whole thrust of the reasoning, stands against acceptance of the argument. That is so even allowing for aspects of the reasoning to be reconsidered in light of Mabo [No 2].
Before the Privy Council, an argument does appear to have been put for the first time to the effect that the "property could not be disposed of without some legislative act". From the scant reference to the argument in the report of the case, the argument appears to have been directed to a permanent disposition or alienation. The argument was rejected on the basis that it was based on a misapprehension that the change in use in that case was irrevocable. Implicit in that rejection is the proposition that statutory authority was not required for that change in use to occur.
The authority of the Privy Council is not needed, however, to demonstrate that the Land Council's argument that s 2 of the Constitution Statute abrogates executive power is unsound.
Lawful occupation by Corrective Services NSW
The Land Council's final argument - that Corrective Services NSW lacked authority to exercise non-statutory executive power to occupy the claimed land - can be dealt with quite briefly.
Corrective Services NSW, it will be recalled, was the name given to the group of staff principally involved in the administration of the Administration of Sentences Act within the Department of Attorney General and Justice. Established as a Department of the Public Service of New South Wales by the Public Sector Management Act, the Department of Attorney General and Justice had no separate legal personality. The Department was no more than a division of the Executive Government of the State.
The Executive Government of the State having non-statutory executive power to occupy the land, subject to statute, that power was capable in law of being exercised by any of its Ministers or through any of its Departments. There is no suggestion that Corrective Services NSW was disabled by statute from exercising that power.
Conclusion
None of the Land Council's three arguments can be accepted. The appeal must be dismissed with costs.