(2005) 63 NSWLR 557
Certain Lloyd's Underwriters v Cross [2012] HCA 56
(2012) 248 CLR 378
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
(2012) 250 CLR 503
Director General, NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132
(2014) 87 NSWLR 465
El Cheikh v Hurstville City Council [2002] NSWCA 173
Source
Original judgment source is linked above.
Catchwords
(2005) 63 NSWLR 557
Certain Lloyd's Underwriters v Cross [2012] HCA 56(2012) 248 CLR 378
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55(2012) 250 CLR 503
Director General, NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132(2014) 87 NSWLR 465
El Cheikh v Hurstville City Council [2002] NSWCA 173(2002) 121 LGERA 293
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388(2006) 69 NSWLR 156
Miller v Miller [2011] HCA 9(2011) 242 CLR 446
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37(2009) 238 CLR 627
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349(2015) 215 LGERA 103
NSW Aboriginal Land Council v Minister Administering Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46(2009) 166 LGERA 137
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32(2011) 244 CLR 144
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28(1998) 194 CLR 355
Tasker v Fullwood [1978] 1 NSWLR 20
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9(2014) 253 CLR 581
Thiess v Collector of Customs [2014] HCA 12
(2014) 250 CLR 664
Wei v Minister for Immigration and Border Protection [2015] HCA 51
(2015) 257 CLR 22
Yango Pastoral Company Pty Limited v First Chicago Australia Limited [1978] HCA 42
Judgment (11 paragraphs)
[1]
The Proceedings
These are Class 3 proceedings concerning an appeal to the Land and Environment Court under s 36(6) of the Aboriginal Land Rights Act 1983 ("the ALRA"), from a decision of the Minister administering the Crown Lands Act ("the Minister") refusing Aboriginal land claim 17514 ("the claim") lodged by the New South Wales Aboriginal Land Council ("the Land Council") pursuant to s 36(2) of the ALRA.
The claim was lodged on 14 April 2009 by the Land Council. The claim was refused by the Minister on 7 October 2015 on the ground that, "when the Claim was made the land was not claimable Crown land as it was subject to a valid contract of sale and therefore not able to be lawfully sold or leased".
The land the subject of the claim is Lot 497 in DP 824135 in the Parish of Guntawang, County of Phillip, located at 11-13 Wynella St, Gulgong ("the land").
On 29 July 2016 Sheahan J made an order that the following questions be determined separately from any other question in the proceedings and before any further hearing:
As at 14 April 2009, was the land the subject of the application (being Lot 497 DP 824135):
(a) able to be lawfully sold or leased under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW); or
(b) reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW)?
The answers to the separate questions raise the proper construction and operation of s 90 of the Crown Lands Act 1989 ("the CLA"). That section empowers the Minister to revoke a reservation of land under the CLA.
More specifically, the separate questions turn on the consequences of non-compliance with the requirement contained in s 90(2) of the CLA that the Minister "may not" publish a revocation notice unless at least 14 days have elapsed since the publication of the notice of intention to publish the notification has been placed in a local or general newspaper circulating in the State. It is not in dispute that no such notice of intention was ever published pursuant to s 90(2) of the CLA.
The Land Council submits that the non-compliance renders the revocation of the reservation invalid, and therefore, the claimed land remained reserved for a public purpose. As a consequence, the Minister had no power to sell the land under s 34 of the CLA, with the result that as at the date of the claim, the land remained reserved for a public purpose under the CLA and was accordingly "claimable Crown land" within the meaning of that term in s 36(1)(a) of the ALRA.
Section 36(1)(a) of the ALRA relevantly defines "claimable Crown land" as:
36 Claims to Crown lands
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…
In the alternative, the Land Council contends that the contract of sale of the claimed land was unlawfully entered into and is void by reason of s 6 of the CLA, and hence, the land remained capable of being "lawfully sold or leased" under the CLA and was, again, claimable Crown land pursuant to s 36(1)(a) of the ALRA.
In response, the Minister argues that the reservation was lawfully revoked upon the publication of a notice of revocation in the New South Wales Government Gazette ("the Gazette"). This constituted sufficient compliance with s 90 of the CLA. If not, an earlier published notice under s 34(3) of the CLA was sufficient to constitute compliance with s 90(2) of that Act. And in any event, even if there was non-compliance with s 90(2) of the CLA, the breach did not invalidate the revocation of the reserve and there is nothing to impugn the contract of sale.
For the reasons that follow, the Land Council's argument should be accepted and the separate questions answered in the affirmative.
[2]
The Crown Lands Act
It is convenient to examine from the outset the scheme of the CLA to the extent that it is relevant to the determination of the separate question.
The term "Crown land" is defined in s 3 of the Act to mean:
"Crown land" means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:
(a) land dedicated for a public purpose, or
(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.
Importantly, s 6 provides that:
6 Crown land to be dealt with subject to this Act etc
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 this Act or the Crown Lands (Continued Tenures) Act 1989 .
The objects of the CLA are set out in s 10 as follows:
10 Objects of Act
The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for:
(a) a proper assessment of Crown land,
(b) the management of Crown land having regard to the principles of Crown land management contained in this Act,
(c) the proper development and conservation of Crown land having regard to those principles,
(d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with,
(e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and
(f) the collection, recording and dissemination of information in relation to Crown land.
The principles of Crown land management referred to in s 10 are articulated in s 11 as:
11 Principles of Crown land management
For the purposes of this Act, the principles of Crown land management are:
(a) that environmental protection principles be observed in relation to the management and administration of Crown land,
(b) that the natural resources of Crown land (including water, soil, flora, fauna and scenic quality) be conserved wherever possible,
(c) that public use and enjoyment of appropriate Crown land be encouraged,
(d) that, where appropriate, multiple use of Crown land be encouraged,
(e) that, where appropriate, Crown land should be used and managed in such a way that both the land and its resources are sustained in perpetuity, and
(f) that Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles
[3]
Events Surrounding the Sale of, and the Claim Over, the Land
The factual chronology giving rise to the appeal, and to the separate questions, was agreed to by the parties and was contained in both a comprehensive statement of agreed facts and an unchallenged affidavit of Mr Terry Childs, sworn 29 April 2016.
Mr Childs is a Senior Manager, Property Services, with the Department of Industry. However, at the relevant time, Mr Childs was employed with the Crown Lands Division of the Department of Lands, where he held the role of Senior Property Officer from 2007 until March 2011.
As at 29 June 2007 the register maintained for the purposes of the Real Property Act 1900 recorded the State of New South Wales as the registered proprietor of the land.
On 29 June 2007 the land was made the subject of Reserve No 755434 for the public purpose of future public requirements ("the reservation") pursuant to s 87 of the CLA, by publication of the reservation in the Gazette on that date.
On 3 September 2008 a valid "notice of intention to sell Crown Land", viz, the land, was placed in the Government Noticeboard of the The Sydney Morning Herald and The Daily Telegraph, pursuant to s 34(3) of the CLA ("the s 34 notice").
The s 34 notice was in the following terms:
Department of Lands
Notice of Intention to Sell Crown Land
Pursuant to section 34(3) of the Crown Lands Act 1989
The Minister for Lands intends to sell or lease for a term exceeding five years, on a date not less than 14 days from the publication of this notice, the Crown Land described hereunder.
Peter Walker
Regional Manager - Central West
(Enquires: Terry Childs 6360 4330)
Description
Location 11-13 Wynella Street Gulgong; Parish: Guntawang: County: Phillip; LGA: Mid Western Regional; Land District: Mudgee; Area: 1.275 Ha Identifier: Lot 497 in DP 824135: File: DB92R18
The notice did not refer to the reservation or its proposed revocation.
On 7 October 2008 an advertising order form for a notice of intention to revoke a Crown reserve under s 90(2) of the CLA was submitted by Mr Childs to the NSW Department of Commerce ("the Department") for placement in the Mudgee Guardian. However, there is no evidence that this notice of intention was published, and it does not appear that Mr Childs checked if the advertisement was published or not.
[4]
There is no suggestion that the wording of the notice in the Gazette was in any way deficient or that it did not comply with s 90(1). It did.
The contract for sale of the land ("the contract for sale") was signed by the Minister's delegate, and witnessed by a Departmental staff member, in the afternoon of 3 April 2009, after the notice of revocation had been published in the Gazette. The contract was dated 3 April 2009, and was posted to Ms Martin, by way of exchange, later that day.
Special condition 30 of the contract for sale provided that:
30. Crown Land
30.1 The Purchaser acknowledges that the land comprising the Property is Crown land within the meaning of the Crown Lands Act 1989 (or may be dealt with as a Crown Land) and the land is sold pursuant to and subject to the provisions of that Act.
30.2 The Minister warrants that all provisions of the Crown Lands Act 1989 that require or specify any matter or thing to be done before the land comprising the Property may be sold have been complied with and the Purchaser agrees that he will not make any requisition, objection or inquiry in respect of the Minister's authority or capacity to sell the Property or compliance by the Minister with any provisions of the Crown Lands Act 1989 or Regulations and hereunder.
30.3 The Vendor and the Purchaser agree that subclause 30.2 shall not merge on the completion of the this Contract.
On 9 April 2009 a fresh deposit cheque was received from Ms Martin and presented by the Department. It subsequently cleared.
On 14 April 2009 a copy of the land claim was sent by the office of the Registrar, Aboriginal Land Rights to the Minister and to the Aboriginal Land Claim Investigations unit in the Minister's Department.
On 5 May 2009 the Aboriginal Land Claim Investigations unit acknowledged receipt of the claim from the Registrar, Aboriginal Land Rights.
On 19 May 2009 completion occurred under the contract for sale, and around that date, a duly executed transfer of land was provided to Ms Martin.
A work list generated by Mr Childs, with a completion date of 26 May 2009, relevantly noted that:
6. Notice of intention to sell Crown land to be advertised in SMH on 3/09/08 end date of responses 17/09/08 no responses received.
…
12. Advert for Rev of Reserve in Local Paper advert 13/10/08 14 days end 28/10/08 - No responses.
…
17. Tender now complete and only one tender received from Mellinda Martin successful at $135,248.00
[5]
Issues for Determination
In short, the Minister's position was that either the s 34 notice was wholly sufficient to satisfy s 90(2) of the CLA, or in the alternative, that the s 34 notice was substantially or practically compliant such that a separate s 90(2) notice was not required as an essential precondition to the exercise by the Minister of his power to revoke the reservation under s 90(1). These arguments were refuted by the Land Council.
Upon closer analysis, the parties' respective positions gave rise to four discrete, but nonetheless intertwined, issues:
1. first, whether compliance with s 90(2) of the CLA was an essential precondition to the exercise of the power to revoke a reservation;
2. second, if so, was this precondition met by the publication of the s 34 notice;
3. third, if it was not, did non-compliance with s 90(2) invalidate the revocation of the reservation; and
4. fourth, if so, was the contract of sale therefore void and unenforceable.
[6]
Was Compliance With s 90(2) of the CLA an Essential Precondition to the Exercise of the Power of Revocation?
The Land Council submitted that, in light of the agreed fact that, albeit due to oversight, no separate notice was published pursuant to s 90(2) of the CLA, there had been no compliance with s 90(2) which was an essential precondition to the exercise of the power in s 90(1) of the CLA to revoke the reservation.
Section 6 of the CLA prohibits the Minister from dealing with Crown land unless authorised to do so under the Act. However, s 34(1) confers upon the Minister a discretionary power to, relevantly in this instance, sell Crown land. The power is expressly circumscribed by s 34(3) insofar as the power contained in s 34(1) to sell "may not" be exercised unless the matters referred to in that provision have been met.
Section 34(6), however, makes it plain that the provision does not empower the Minister to sell Crown land that is "reserved for a public purpose". Accordingly, either a power to sell Crown land subject to a reservation must exist elsewhere in the CLA - which it does not - or any Crown land that is to be sold must not be subject to a reservation. So much so is clear from the combined effect of ss 6 and 34(6) of the CLA.
Section 90 is structured almost identically to s 34. Section 90(1) confers a discretionary power on the Minister to, upon notification in the Gazette, revoke a reservation of land under the CLA. However, the power is confined by the matters set out in s 90(2) which preclude, until their completion, notification in the Gazette. This is important because revocation only takes effect upon publication of the notification in the Gazette (s 90(3) of the CLA). Put simply, if there is no notification in the Gazette, there is no revocation, and for notification to occur, the steps prescribed in s 90(2) of the Act arguably require completion.
Resolving whether the statutory obligation contained in s 90(2) of the CLA constitutes an essential precondition to the exercise of the Minister's discretionary power in s 90(1) turns on the proper construction of the former provision. This interpretative task is to be undertaken having regard to the text of s 90(2), with recourse to its wider statutory context (which includes its legislative history and extrinsic materials), and the general purpose or policy underpinning the provision (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]-[100]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[26], [69] and [88]; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 581 at [65]-[66] and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] and [23]).
[7]
Was the Publication of the s 34 Notice Sufficient to Comply With s 90(2)?
As a consequence of this finding, the next question to be determined is whether the s 34 notice placed in The Sydney Morning Herald and The Daily Telegraph was sufficient to comply with s 90(2) of the CLA? If it was, then notification of the revocation in the Gazette has lawfully occurred, thereby permitting the Minister to exercise his power to revoke the reservation and sell the land.
The Minister contended that the s 34 notice published on 3 September 2008 was sufficient for the purposes of compliance with s 90(2) of the CLA because it satisfied the required textual elements of that provision, namely:
1. the publication of a notice - this occurred;
2. the identification of location (either by piece or parcel) of the land to which the notice relates - the land was described in the notice by its street address and its folio identification;
3. the notice referred to in (a) to be published either in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State - the notice was in fact placed in both categories of newspaper; and
4. the notice to effectively indicate that the Minister intends to publish a notification of revocation of the reservation - the indication of the Minister's intention was implicit in the fact that the sale of Crown land referred to in the notice involved a revocation pursuant to s 34(6) of the CLA, and accordingly, the s 34 notice amounted to a notice of intention to publish a revocation notification.
The Minister also relied on the fact that the notice ultimately published in the Gazette was unimpeachable.
I accept the submission of the Minister that merely because the 3 September 2008 notice referred in its heading to s 34, and not s 90, does not, without more, constitute non-compliance with s 90(2) of the CLA.
But in this case there was more:
1. first, the notice was identified as a notice of intention to sell Crown land, and not a notice of intention to revoke a reservation;
2. second, there was no mention whatsoever of a reservation in the notice, irrespective of any intention to revoke it;
3. third, inconsistent with the heading of the notice, the body of the notice confusingly stated that the Minister intended to "sell or lease for a term exceeding five years" (emphasis added) the land. If the intention of the Minister were the latter, the implicit assumption upon which the Minister relies, namely, that any reservation burdening the land would have to be revoked, was not available. As the Minister accepts, a revocation of a reservation for public purposes is not required to lease the land on a long term basis;
4. fourth, and in any event, it cannot be assumed, as the Minister does, that the reasonable reader of the notice has a sufficiently sophisticated, or indeed any, understanding of the scheme of land dealings under the CLA that he or she would understand that the sale of Crown land would require the revocation of any reservation it was subject to; and
5. fifth, there was no way in which the reasonable reader could, from the notice, identify the reservation or determine its purpose.
[8]
Did the Failure to Comply With s 90(2) Result in Invalidity?
It is almost trite law that the consequence of an act done in breach of a statutory condition or prohibition is a matter of statutory construction (Project Blue Sky at [91]).
In the seminal decision of Project Blue Sky the test for invalidity for a breach of a statutory proscription was formulated as follows (at [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ, footnotes omitted):
91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
92. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:
"substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."
93. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
[9]
Was the Land Able to be Lawfully Sold if the Revocation is Invalid?
In conformity with the reasons expressed above, because no notice of intention was published as required by s 90(2) of the CLA on 3 April 2009, the purported revocation by publication of the notification in the Gazette was ineffective, and the land remained reserved for a public purpose. It follows that the land was "claimable Crown land" within the meaning of s 36(1)(a) of the ALRA.
Furthermore, by reason of s 6 of the CLA, the Minister had no power under s 34(1)(a) to sell the land, and the contract of sale was unlawfully entered into and is a nullity insofar as it is presently unable to be enforced by either party (Kinchela at [68]-[77], Yango Pastoral Company Pty Limited v First Chicago Australia Limited [1978] HCA 42; (1978) 139 CLR 410 at 413-414 per Gibbs ACJ, 423 per Mason J and 430 per Jacobs J and Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 at [24] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Consistent with the discussion above, there is nothing in the CLA that provides expressly, or by necessary implication, that a contract for sale made in breach of a statutory prohibition would be enforceable. If anything, s 6 of that Act evinces a clear intention to the contrary.
Therefore, as at the date of the claim (14 April 2009), the land remained capable of being "lawfully sold or leased" under s 36(1)(a) of the ALRA and was "claimable Crown land" for the purposes of that Act.
The present case is not dissimilar to the decision of the Court in Kinchela. In Kinchela a contract for the sale of Crown land was entered into after a public auction. As at the date of the entry into the contract for sale, the land was in fact reserved for "future public requirements". Prior to completion, however, the reservation was validly revoked by publication of the requisite notice in the Gazette. A land claim over the land was lodged.
The Court held that the contract for sale was unlawful by reason of the contravention of s 34(6) of the CLA, notwithstanding the lawful revocation. In so finding, it relied upon a number of authorities in support (at [72]-[77]):
72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands.
73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]:
Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. ... Any purported dealing with Crown land other than in accordance with that prohibition is unlawful ...
Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation.
74 Other authorities are to the same effect. For example in Watson's Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268, s 25 of the Crown Lands Consolidation Act 1913 empowered the Minister for Lands to publish in the Gazette a notice of his intention to revoke the dedication of Crown lands and, subject to Parliament not having dissented, to carry his intention into effect after a specified time. Section 63 provided that Crown lands may be sold by public auction at such times and places as the Minister shall direct. In respect of certain Crown land which had been resumed by the Crown and then dedicated as a public park, the Minister gave notice under s 25 of the Act to revoke the dedication and purported to enter into an agreement with the former owner that when the dedication was revoked, the land would be offered for sale by public auction and the purchase money would be accepted by the former owner in full satisfaction of its outstanding claim for compensation. The High Court held that the agreement was illegal and invalid on a number of grounds, but principally because it was an attempt to fetter in advance the discretion and public duty of the Minister - that is, the Minister was bound by the contract to exercise his statutory power as predetermined by the contract, but if unfettered the discretion might lead the Minister to retain the land as Crown land.
75 In Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70, the company had applied to purchase Crown land as a result of improvements made pursuant to s 2 of the Crown Lands Amendment Act 1875. The approval of the application had been published by notice in the Gazette and the purchase money had been lodged with Treasury. Vinecombe subsequently applied to purchase the land. Vinecombe's application to purchase was opposed by the company, which argued that the land was already lawfully contracted to be sold. The court held, however, that because the company's improvements were made before the reservation was revoked, there could be no lawful contract for sale in relation to the land. The subsequent Gazette notification could not cure the matter. The government had no power to sell the land or to lawfully contract to do so.
76 Other cases to a similar effect where conformity with the relevant statute has been insisted include, for example, Minister for Lands v Harrington [1899] AC 408 at 413 - 414, Minister for Lands v Bolton (1896) 17 NSWR 389 at 393, Roach v Bickle (1915) 20 CLR 663 at 669-671, Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438 at 443-444 and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998) at [51], [55], [56] and [58]. In Roach v Bickle, Issacs and Gavan Duffy JJ said at 671: "Where a Statute prohibits a transaction either expressly or by implication, no such transaction can be validly created".
77 These cases confirm the historical prohibition that the sale of lands reserved from sale has been regarded as a nullity, the cases including those decided both before and after Project Blue Sky. In particular, I can do no other than to follow the Court of Appeal in New South Wales v Scharer, a decision which is binding upon me. It is the publication of the notification in the Gazette under s 90(3) which has legal operation and the sale occurred prior to that happening in breach of s 34(6). The contract for sale is thus unlawful.
[10]
Conclusion and Orders
For the reasons given above, the Court answers the separate questions accordingly, namely, that as at 14 April 2009, the land:
1. was able to be lawfully sold or leased under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW); and
2. was reserved or dedicated for a purpose under the Crown Lands Consolidation Act 1913 or the Crown Lands Act 1989.
The Minister is to pay the Land Council's costs of the application for, and the hearing and determination of, the separate questions.
The exhibits are to be returned to the parties.
The matter is to be relisted before the List Judge on 3 February 2017, for further directions.
The parties are granted liberty to restore on two days' notice.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 December 2016
The requirements for dealings in Crown land are located in Pt 4 of the CLA. The general power of the Minister to deal in Crown land, including to sell Crown land, is contained in s 34 of the Act. That section relevantly states that:
34 Powers of Minister in relation to Crown land
(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:
(a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or
(b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land,
on behalf of the Crown.
…
(3) The Minister may not, under subsection (1):
(a) sell or exchange Crown land,
(b) lease Crown land for a term exceeding 5 years, or
(c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years,
unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
…
(6) This section does not authorise the sale of Crown land which is reserved for a public purpose.
Part 5 of the CLA deals with "Dedications and reservations of land".
The power of the Minister to dedicate land for a public purpose is conferred by s 80(1) contained in Div 2 of Pt 5 of the CLA. Section 84 sets out the power to revoke a dedication. It is in the following terms:
84 Revocation of dedication
(1) The Minister may, by notification in the Gazette, revoke the whole or part of a dedication under this Act, but only if:
(a) subsection (2) has been complied with, and
(b) the proposed revocation has not been disallowed under subsection (3).
(2) This subsection is complied with if:
(a) notice of the proposed revocation is published in the Gazette, and
(b) a copy of the notice is laid before each House of Parliament within 10 sitting days after its publication.
(3) Either House of Parliament may pass a resolution disallowing the proposed revocation if notice of the resolution is given within 14 sitting days of the House after the copy of the notice published in the Gazette is laid before it.
(4) On publication of the notification in the Gazette, the land affected vests in the Crown and becomes Crown land within the meaning of this Act.
Critically, Div 3 of Pt 5 deals with "Reservations". The power of the Minister to reserve Crown land is located in s 87(1) of the CLA. It provides that:
87 Power of Minister to reserve land
(1) The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose.
The term "public purpose" is defined in s 3 of the CLA for the purpose of that Act to mean:
"public purpose", in relation to a provision of this Act, means any purpose for the time being declared by the Minister, by notification in the Gazette, to be a public purpose for the purposes of that provision.
As foreshadowed above, s 90 provides for the revocation of a reservation and states that (emphasis added):
90 Revocation of reservation
(1) The Minister may, by notification in the Gazette, revoke the whole or part of a reservation of land under this Act.
(2) The Minister may not publish a notification under subsection (1) unless at least 14 days have elapsed after notice of intention to publish the notification has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
(3) The revocation takes effect on publication of the notification in the Gazette.
The unpublished s 90(2) notice was in the following form:
Under provisions of S90(2) of the Crown Lands Act 1989, the Department of Lands, after 14 days from publication of this notice intends to publish a notification in the Government Gazette under S90(1) revoking the reservation of Crown Land described as follows. Location: 11-13 Wynella Street, Gulgong, Parish: Guntawang, County: Phillip, Reserve 755434 for Future Public Requirements being Lot 497 in DP 824135. Contact Officer: Terry Childs, Telephone (02) 6391 433. Peter Walker Regional Manager - Central, Crown Lands Division. (GAI:720353).
The Minister does not cavil with the fact that this notice was never published.
On 12 November 2008 the Minister's delegate approved the appointment of a local real estate agent to manage the tender process. The reserve for the tender was set at $130,000.
A tender process was conducted from 14 November 2008, with the closing time for tenders nominated as 2.00pm on 27 January 2009. An advertisement was placed in the Mudgee Guardian on 28 November 2008, referring to the land as "for sale by tender". There was, however, no reference to the reservation.
By close of tender, the Department had received one tender for the purchase of the claimed land from Ms Melinda Martin in the sum of $135,248.00. The tender included an undated contract for the sale of land, filled out with Ms Martin's details, together with the proposed purchase price.
On 28 January 2009 Ms Martin was advised by the Department that her tender was successful. The writer of the letter was not the Minister's delegate and the Minister's delegate did not approve the writing of the letter.
On 30 March 2009 Ms Martin made out a cheque for the deposit amount. The cheque was received and presented by the Department on 31 March 2009, but it was dishonoured at some time on or after 3 April 2009.
Around 3 April 2009, the Minister's delegate approved a recommendation of the Department to accept Ms Martin's tender and to sign the contract of sale. The recommendation stated as follows:
With the completion of the tender we received only one tender which was above our agreed reserve price and approval is now sought for acceptance of this tender along with singing [sic] of the contract by the Regional Manager (being the Minister's delegate).
It is therefore recommended that:
4.1 The Regional Manager signs the contract for the successful tenderer which is above the approved reserve sale price.
On 3 April 2009 a notice of revocation of the reservation in respect of the land appeared in the Gazette in the following form:
REVOCATION OF RESERVATION OF CROWN LAND
PURSUANT to section 90 of the Crown Lands Act 1989, the reservation of Crown land specified in Column 1 of the Schedule hereunder is revoked to the extent specified opposite thereto in Column 2 of Schedule.
TONY KELLY, M.L.C.,
Minister for Lands
SCHEDULE
Column 1
Land District: Dubbo
Local Government Area: Column 2
Mid-Western Regional The part being:
Locality: Gulgong Lot 497, DP 824135,
Reserve No. 755434 Parish Guntawang
Public Purpose: Future County Phillip
public requirements of a total area of 1.275 ha
Notified: 29 June 2007
File Reference DB92R 18
On 22 June 2009 Ms Martin was recorded in the Register as the registered proprietor of the land. The Register has not been amended.
In my view, there are a number of textual and contextual indicators that demonstrate that properly construed, compliance with s 90(2) of the CLA was necessary prior to exercising the power contained in s 90(1).
First, the language of s 90(2) ("may not") clearly qualified the discretionary power ("may") contained in s 90(1) of the Act. The qualification of the power is in terms that are clear and imperative. Having said this, the fact that the words "may not" are used in s 90(2) of the CLA, while material, is not conclusive of the construction of the section (Director-General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132; (2014) 87 NSWLR 465 at [61]).
The Minister sought to argue that the words "may not" were inherently less strict than the positive obligation "shall", which was not used in s 90(2), by reference to s 9 of the Interpretation Act 1987. That provision provides that:
9 Meaning of may and shall
(1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.
(2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed.
The Minister noted that, by contrast, s 85(1) of the CLA stated that "land shall not be dedicated unless the Minister is satisfied that the land has been assessed under Part 3". The difference in the language between the two sections therefore supported the contention that the prohibition in s 90(2) was imposed only on the activities on the Minister, rather than on any exercise of power.
I agree with the response of the Land Council that reliance on s 9 of the Interpretation Act is of limited assistance in the present case. That section refers to the distinction between "shall" and "may" in the imposition of a duty. It references the traditional terminological distinction between an 'imperative' or 'mandatory' duty, on the one hand, and a 'directory' duty, on the other; with the former demanding strict compliance and the latter, while resulting in unlawfulness, not necessarily resulting in invalidity (Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [25]).
Nevertheless, as the High Court in Wei cautioned (at [26]):
26. Consistently with Project Blue Sky Inc, what is critical to be borne in mind is that assignation of one or other of those labels to a particular statutory duty imposed by a particular statutory provision marks "the end of the inquiry, not the beginning". To label a particular statutory duty either "imperative" or "directory" is to express the conclusion of a process of statutory construction. Central to that process of statutory construction is an inquiry as to whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.
Here, s 90(2) does not impose a duty to exercise a power. Rather, it confers a pre-condition to the exercise of discretionary power. In other words, if the Minister elects to exercise his power it must be exercised in the manner mandated.
Section 9 of the Interpretation Act is, in any event, silent on the meaning of the term "may not". In my opinion, those words have the same meaning as "cannot", "shall not", or "must not", and are indicative of an absence of a power failing any satisfaction of the preconditions necessary to enliven it. As the Court of Appeal observed in Mato in the context of the notification of a development consent (at [63] per Bathurst CJ, Fullerton and Bellew JJ):
63. First, although not conclusive, the use of the words "must, in accordance with the regulations" suggests that strict compliance is required for the notice to be effective.
Second, if accepted, the logical corollary of the Minister's submissions would be to render otiose s 90(2) whenever the Minister sought to deal with Crown Land in a manner prescribed by s 34(1). Compliance with that provision would always be satisfied by the publication of a notice under s 34(3) of the CLA. This offends the general principle that provisions should be construed as having work to do (Project Blue Sky at [71] and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [97]).
In response, the Minister submitted that the text of s 90 indicates that the effectiveness of the revocation of a reservation is independent of any notification process. Specifically, s 90(3), which nominates when a reservation is in fact revoked, must have work to do beyond simply reaffirming what is provided for in s 90(1), namely, that the reservation takes place upon (or "by") notification in the Gazette. The job that it performs, according to the Minister, is to provide an authoritative statement of when the reserve is revoked, irrespective of compliance with s 90(2).
The Minister drew support for its submission by comparing s 79 of the CLA to s 90. Section 79 (which is concerned with declarations that land is not to be reserved) is relevantly similar in structure to s 90, save that it does not contain an equivalent to s 90(3). The declaration is effected "by" order published in the Gazette with the result that the publication is determinative. Thus the Minister argued that, as a consequence, it was more likely that the notification requirement in s 79(2) was a pre-requisite to the validity of notification than the notification requirement in s 90(2).
But as the Land Council, correctly, in my opinion, observed, s 79 deals also with classes of Crown land which may require a more sophisticated and flexible temporal dimension as to when the declaration becomes operative. In addition, s 90(3) will not be otiose if its construction of s 90(2) is correct because s 90(3) specifies the precise time upon which a valid revocation commences, namely, the date the notice was published in the Gazette.
The Minister also sought comfort from s 84 of the CLA by submitting that if the legislature had intended s 90(2) to be the vehicle to the validity of the revocation, it would have followed the form of other provisions in the CLA where a failure to comply explicitly results in invalidity, such as s 84 (the Minister has the power to revoke a dedication "but only if" the matters referred to therein have been met). But as discussed later in this judgment, the form of s 84 is markedly different from s 90. It is equally arguable that the linguistic distinction seized upon by the Minister is one without a difference insofar as s 84(1) confers a power on the Minister "but only if" the pre-conditions in s 84(2) and (3) have been complied with, whereas s 90(1) confers a power on the Minister who may not ("must not") exercise the power unless the pre-condition in s 90(2) has been complied with. On this basis, the effect of the sections is the same.
The Minister further argued that s 90(2) did not, as a matter of language, go to the existence of the power to revoke the reservation insofar as the notification mandated by that provision was not a notice of intention to revoke, but was merely a notice of intention to publish the notification of revocation. In other words, it is no more than a mechanical provision dealing with the manner in which the power in s 90(1) is to be exercised. The words "may not" relate to the manner in which the Minister can publish the notice, and are not directed to matters of power.
As attractive as this argument is, its simplicity obfuscates the necessity to read s 90(2) in the wider context of s 90 as a whole and not as a standalone provision. Section 90(2) expressly and unambiguously qualifies the exercise of the power in s 90(1).
Third, to construe compliance with s 90(2) as a necessary precondition for the exercise of power contained in s 90(1) of the CLA is in conformity with its statutory purpose. The object of the section is to inform the general public (to whom the notification is directed) of an intention to revoke a reservation to enable the public to make submissions to the Minister in respect of the proposed revocation.
While the Minister accepted that "public notification in the process of dealing with Crown land is important" he nevertheless submitted that the notification requirement contained in s 90(2) was a "relatively minor aspect" of the overall scheme of management of Crown lands. He relied on the fact that, unlike the public notification provisions under the Environmental Planning and Assessment Act 1979 ("the EPAA"), the present statutory regime for the notification of an intention to deal in Crown land or an intention to revoke a reservation over Crown land did not give rise to cognate public participation rights, for example, a right to consultation, a right to formally object, or a right to appeal the merits of a Minister's decision. This indicated that the objective intention of Parliament in enacting s 90(2) of the CLA was that strict compliance with its terms was not necessary and that effective compliance would suffice.
But the absence of any formalised express mechanism for public participation similar to the regime under the EPAA does not mean that the requirement in s 90(2) can all but be ignored. As stated above, and was tacitly acknowledged by the Minister, it is tolerably clear that the purpose of s 90(2) of the CLA is to facilitate participation in dealings with Crown land by allowing the public to make representations to the Minister with respect to proposed revocations of reservations. If s 90(2) is to be construed as an optional step to be undertaken in the exercise of the Minister's revocation power, this object is wholly eroded. The 14 day advance notice of the Minister's intention to revoke a reservation may more than arguably, in my view, be characterised as a requirement to consult the public (or a right to consultation). Were it otherwise, and at the risk of repetition, s 90(2) serves scant legislative function.
The purpose s 90(2) has been curially recognised in NSW Aboriginal Land Council v Minister Administering Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 per Lloyd J (at [30]):
30. The purpose of such a public notice is to allow members of the public to make submissions to the Minister about the intended action - in this case the proposal to revoke the reservation and to sell the land. The notice in the present case clearly achieves that purpose. The use of the phrases "proposes to consider" the revocation and "proposed to sell" demonstrate that the Minister did not have a closed mind in relation to the public consultation process. That is, a final decision would only be made after taking into account any submissions received following the period of public notification.
This finding is in conformity with the objects of the CLA contained in s 10, particularly given those objects are stated as to generally "ensure that Crown land is managed for the benefit of the people of New South Wales" (emphasis added), the specific objects contained in s 10(a), (c), (e) and (f), and moreover, the principles of Crown land management contained in s 11 (see, in particular, s 11(c) and (e)).
The stated purpose is also consistent with the extrinsic materials. The Second Reading Speech of the Crown Lands Bill 1988 on 1 March 1989, emphasised, at least in respect of s 34(3), the desire for "public scrutiny" to "ensure that the public is aware of proposed dealings and, if they are concerned about the proposal, the provisions give them time to make such representations as they may wish" (New South Wales, Legislative Council, Hansard, 1 March 1989, p 5470 and see also the remarks at p 5474).
During the debate in the Legislative Council, an amendment was moved in order to establish similar notification requirements in relation to the revocation of a reservation under s 90 (Legislative Council, Hansard, 1 March 1989, p 5474). The Government agreed to the change (Legislative Council, Hansard, 1 March 1989, p 5474) and the amendments were subsequently endorsed to by the Legislative Assembly (Legislative Assembly, Hansard, 2 March 1989, p 5614).
It may therefore be safely concluded that, considerably more than mere machinery, ss 34(3) and 90(2) were inserted to facilitate public scrutiny of, and participation in, proposed dealings with Crown land, including revocations of reservations.
There is, moreover, a significant practical dimension to the obligation to notify enshrined in these provisions, particularly in the case of s 90. The 14 day advance notification period mandated in s 90(2) permits interested parties not only to make representations to the Minister prior to the relevant act of revocation coming into effect, it also permits parties to approach the Court to obtain appropriate equitable relief, including interlocutory relief. If, however, the public is not informed of the Minister's proposed dealings with respect to Crown land, and if, as the Minister contends, s 90(2) is not an essential precondition to the exercise of power conferred by s 90(1), achieving compliance with s 90(2) becomes all but impossible. This is because any challenge by a member of the public after the relevant notice in the Gazette had been published would lack utility, the dealing having become irrevocably effective upon the Gazettal of the notice of revocation.
By way of practical illustration, s 90(2) of the CLA provides Indigenous land councils with the opportunity to lodge land claims over claimable Crown land prior to its revocation thereby preserving a valuable right to make a claim over Crown land under the ALRA (see s 36(1)(a) of that Act).
That the purpose of s 90 is as described above is supported by the language of the provision itself. The decision to revoke the reservation is only effected by notification in the Gazette (s 90(1)). But such notification may not be, as has been previously observed, published unless the required time has passed after public advertisement of a notification of an intention to publish the notification (s 90(2)). It is only once the intention to revoke is notified, and a subsequent decision is made to publish the notification in the Gazette, that a decision to revoke a reservation is made. This deliberately enacted two-step process allows the Minister to receive, and presumably consider, submissions on the foreshadowed revocation proposal prior to determining to revoke the reservation by publication in the Gazette.
It is therefore not correct to say, as the Minister does, that "nothing concrete flows from a failure to comply with s 90(2)". A failure to comply with s 90(2) means that no notice can be published in the Gazette and no revocation can occur. This is made express by the subordinate clause in s 90(1) that provides for the manner in which the power may be exercised, that is to say, "by notification in the Gazette".
The presence of s 90(3) does not derogate from this conclusion. To reiterate, it specifies the time upon which a valid revocation commences. It does not and cannot undermine the precondition stipulated in s 90(2) by suggesting an alternative pathway to revocation, namely, publication, without more, in the Gazette. Again, were it otherwise, s 90(2) would have no work to do. Rather, in my view, s 90(3) reinforces the caveat on the exercise of the power to revoke a reservation in s 90(1), namely, that it is only upon notification in the Gazette that the power to revoke is exercisable, and that notification in the Gazette can only occur once the matters in s 90(2) have been attended to.
That there is no cognate provision to s 90(3) in s 34 does not, as the Minister submitted, undermine this conclusion. The reason for its absence is readily explicable by the fact that the date upon which the sale of Crown land takes effect will be the date specified in the contract for sale.
The Minister's alternative submission that the purpose of s 90(2) is limited to public notification of an existing notification decision is, as the discussion above establishes, discordant with its text. In addition, it serves no purpose given that, upon publication of the notification in the Gazette, the revocation takes effect (s 90(3)), thereby denying any opportunity for any public representations to, or consultation with, the Minister to occur.
Finally, the interpretation of s 90(2) posited above is harmonious with existing and historical case law which has construed Crown land legislation as prohibiting the Crown from dealing with such land except in strict compliance with the statutory regime permitting the dealing. See, for example, the extensive survey of case law in Kinchela, quoted below (per Lloyd J at [72]-[77] and the authorities cited therein).
A similar sentiment was more recently expressed by the Court of Appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 215 LGERA 103 (at [24] per Leeming JA):
24. 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].
In summary, having regard to the clear and unambiguous language of s 90(2), the surrounding statutory context, and the provision's purpose, I find that compliance with the section is an essential precondition to the exercise of the revocation power contained in s 90(1) of the CLA.
All of these deficiencies with the s 34 notice had the effect, in my opinion, of substantially undermining the purpose underpinning the promulgation of s 90(2), namely, to properly inform the public of the Minister's dealings in Crown land in order to facilitate and foster public scrutiny of the Minister's decision-making processes in respect of those dealings.
As Bathurst CJ opined in Mato (at [62], with whom Fullerton and Bellew JJ agreed, emphasis added):
62. In my opinion, a consideration of the context of the provision and its purpose in the legislative scheme leads to the conclusion that the notice of development consent must at least state accurately the critical matters required to be notified by the Regulation. …
While these remarks were made in the context of a notification of a development consent, which, as noted above, is the subject of a specific legislative consultation regime under the EPAA, they are nevertheless apposite.
In the present case, the s 34 notice did not "state accurately the critical matters" required by s 90(2) of the CLA. In particular, it did not state that the land to be dealt with was the subject of a reservation or that the Minister intended to revoke it. Put another way, the notice "failed to achieve its intended purpose" (Kinchela at [29]) and was "misleading" (El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293 at [2] per Sheller JA and [12] per Ipp AJA and Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156 at [110] per Tobias JA).
True it is that a member of the public reading the s 34 notice was put on notice as to the Minister's intention to deal with the Crown land identified, but not, in my view, that it was necessarily the intention of the Minister to alienate the land for all time. To repeat, the notice is equivocal as to whether or not the land was to be finally disposed of by way of sale, or merely leased. And, in any event, a contract for the sale of Crown land will not always result in its wholesale eternal alienation. The land can, for example, be sold subject to conditions, which if not fulfilled can cause its transfer back to the Crown (see generally Div 2 of Pt 4 of the CLA concerning sales of Crown land).
But more importantly, a person reading that notice would not have known that the land was subject to a reservation. This was, in my view, essential information which may have been influential in, if not determinative of, any decision by an individual to make further enquiries as to the circumstances of the Ministerial dealing in the Crown land in question.
A reservation placed over Crown land indicates to the community that it is being kept for a particular public purpose, usually beneficial - in this instance, "future public requirements". In other words, it signifies that there is something special about the Crown land. It is no doubt for this reason that the Minister's discretionary power to revoke the reservation is not unfettered. It is, therefore, entirely conceivable that a member of the public, knowing that Crown land is subject to a reservation, might take a greater interest in any intended dealing with the land by the Minister. In the present case, in the absence of any relevant information concerning the reservation, this was not possible.
That the reservation was ultimately identified in the Gazette notice did not, in my opinion, cure the vice in the s 34 notice (assuming, for present purposes, it was to also able to fulfil the role of the s 90(2) notice). A fair reading of that notice gives rise to the conclusion that the revocation had already occurred.
Likewise, there was no mention of the reservation or its proposed revocation in the tender advertisement.
And, while there are no statutorily enshrined rights of consultation, participation, or appeal contained in the CLA, the dual requirement to notify both any dealing in Crown land and any revocation of a reservation over that land, is a strong contextual indicator that the public's right to be properly informed of the Minister's decision-making is not to be lightly displaced. In this instance, the public was not properly informed because there was no mention whatsoever of the reservation in the s 34 notice or the Minister's intention to revoke that reservation.
Finally, the Minister relied on the fact that there had been no responses received as a result of the s 34 notice. This was used by the Minister in an attempt to establish that the notice had served to alert, in the manner statutorily mandated, all those who were interested in the land, and the Minister's contemplated dealing with it, in a manner inconsistent with the maintenance of the reservation. But this may be answered by the fact that those persons may not have responded to the notice because they were unaware that the land was subject to a reservation. As it transpired, after the sale was made public, a land claim was lodged.
Accordingly, I find that the s 34 notice was not sufficient for the purposes of compliance with s 90(2) of the CLA.
Earlier, the Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 (cited approvingly in Project Blue Sky) had described the interpretative endeavour in the following terms (at 23F-24B per Hope, Glass and Samuels JJA, footnotes omitted, emphasis added):
The submission raises a question of a type which is frequently encountered. The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court: Attorney-General (N.S.W.) ex rel. Franklins Stores Pty. Ltd. v. Lizelle Pty. Ltd and Hatton v. Beaumont. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v. The Commonwealth. From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: Franklins Stores Pty. Ltd. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth. …
The significance of the semantic difference in the formulations of the test in Project Blue Sky at [91] and [93] was remarked upon, and explained, by Spigelman CJ in Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 (at [107]-[108]):
107. There is a slight difference between the two formulations. The passage at [91] refers to a legislative intention "to invalidate any act that fails to comply". The second at [93] refers to a purpose to invalidate "an act done in breach". I do not understand the word "any" to be used in the sense of "every". The word "an" in [93] indicates that a court must look at what Parliament intended to be the consequences of the particular breach under consideration.
108. There may, of course, be legislative requirements with respect to which it is appropriate to conclude that Parliament intended every breach to lead to invalidity. (See, e.g., Hatton v Beaumont [1977] 2 NSWLR 211 at 266.) There are other requirements where it is appropriate to consider the particular circumstances of the case when determining what are the consequences of the defective compliance. The decisions of this Court, to which the High Court referred with approval, support this conclusion.
To summarise, in carrying out its interpretative function, in addition to a close examination of the text, context, and purpose of the subject legislation, the Court should also have regard to the following (and non-exhaustive) indicia:
1. acts done in breach of an essential precondition to the exercise of a statutory power, rather than acts done in breach of a procedural precondition for the exercise of power, are more likely to go to jurisdiction and are more likely to attract invalidity (Project Blue Sky at [94]);
2. the nature of the obligation imposed by the proscription. An obligation that has a "rule-like quality which can easily be identified and applied", rather than an obligation that will give rise to widely differing views as to whether or not the function has been carried out, will more likely result in invalidity. Therefore, where a power is to be carried out according to policy, this is less likely to speak of potential invalidity (Project Blue Sky at [95]);
3. the greater the public inconvenience that would result from the invalidity of the act or decision, the less likely that it was Parliament's intention that an act done or decision made in breach of the legislation would result in invalidity (Project Blue Sky at [97]); and
4. the consequences of the particular breach under consideration (World Best Holdings at [108]), or put another way, "the effect upon the validity of the act in question having regard to…the extent of the failure to observe the requirement": Tasker v Fullwood at 24B). Thus, the more trivial the breach, the less likely of resultant invalidity.
Turning first to an examination of the text of s 90(2), in addition to the textual, contextual and purposive analysis of the provision above, it should be observed that the text of s 90(2) of the CLA creates a distinct imperative prohibition on the Minister revoking a reservation of land. As a consequence, the ordinary and common sense meaning of s 90(2) is that the mandatory matters it specifies must be complied with, and until such time as they have been carried out, the revocation power conferred in s 90(1) is not enlivened.
The Land Council submitted that the statutory context within which s 90(2) was located suggested that the section should be strictly applied with the result that non-compliance has the consequence of invalidity. There were, it noted, a number of other provisions within the CLA that made it explicit that non-compliance with a statutory obligation was not intended to result in invalidity (see ss 34A(3), 112(9) and 121A(5))
While there is some force in this argument, it must be acknowledged that, in each legislative example referred to, the operative breach giving rise to the statutory affirmation of validity was predicated upon the failure of an express obligation by the Minister to consult. This, it could be argued, is a less onerous obligation than the requirement to publish a notice of intention to publish a notification, thereby demanding a lesser consequence than that of invalidity in the face of non-compliance.
The Minister was also quick to note that, ss 34A and 121A were inserted into the CLA in 2005, viz, after the publication of Project Blue Sky, thereby suggesting that their inclusion in the Act was designed to avoid any doubt as to the intended effect of their breach. This could not, however, be said of s 90.
But, the later amendment of the CLA to include these provisions, and to make explicit the legislature's intention as to the consequences of any non-compliance, also serves the point of demonstrating that it was equally available to Parliament to amend s 90 to expressly state that breach of s 90(2) would not invalidate any purported revocation other than in conformity with that section.
This contextual argument therefore appears evenly balanced.
The Land Council further sought to draw parallels between the structure of s 90 and that of s 84 of the CLA (the latter of which concerns the revocation of dedications of land), to contend that there was nothing particularly unique, within the context of the CLA, about a power that was conditioned upon compliance with obligations to notify and publish (for example, see s 84(2)). But again, the extent to which this provision assists the Land Council is, in my view, equivocal. Not only is the structure of s 84 very different to s 90, so too is its text. As the Minister emphasised, s 84(1) provides that the Minister may revoke the dedication "but only if" subsection (2) has been complied with and the proposed revocation has not been disallowed by Parliament under subsection (3). Therefore, had the legislature intended s 90(2) to be a gateway to the validity of a Gazetted revocation, it could be expected to have employed the same language.
As with the debate concerning ss 34A, 112 and 121A of the CLA, the respective submissions of the parties are equally compelling and ultimately do not take the interpretative task much further.
Second, having regard to the nature of the obligation imposed by s 90(2), the Minister submitted that the requirement for notification under s 90(2) did not confer important rights, or impose significant obligations, and therefore, having regard to the purpose of the provision, it could not be said that Parliament's objective intention in enacting the section was that an act done in breach of it was a nullity. This submission must be, however, eschewed in light of the discussion above with respect to the purpose of s 90(2). The right, one of "public information" (as described by the Minister), is, in my view, an important one. The right will not necessarily be, as the facts of the present case demonstrate, protected by a notice published pursuant to s 34(3) and/or publication of the notice in the Gazette.
Third, s 90(2), by reason of its clear and unambiguous language, has a "rule-like quality" which is both readily identifiable and is easily applied: either the notice of an intention to publish the notification in s 90(1) has been placed in the newspapers referred to therein, or it has not. No subjective evaluative policy is required in order to comply with the provision. That is to say, there is no "room for widely differing opinions as to whether or not a particular function has been carried out in accordance with" matters of policy (Project Blue Sky at [95]).
Section 90(2) may be contrasted with s 160(d) of the Broadcasting Services Act 1992 (Cth), the breach of which was at issue in Project Blue Sky. Section 160(d) of that Act provided that the Australian Broadcasting Authority was "to perform its functions in a manner consistent with…(d) Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country". The High Court held that an act done in breach of s 160 was not invalid for the following reasons (at [94]-[98]):
94. Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it "is to perform" those functions "in a manner consistent with" the four matters set out in the section. In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs. Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act. The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.
95. That indication is reinforced by the nature of the obligations imposed by s 160. Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a manner consistent with:
the objects of the Act and the regulatory policy described in s 4;
any general policies of the Government notified by the Minister under s 161;
any directions given by the Minister in accordance with the Act.
In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity.
96. Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language as the result of compromises made between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. The problems that might arise if the performance of any function of the ABA carried out in breach of Australia's international obligations was invalid are compounded by Australia being a party to about 900 treaties.
97. Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA.
98. Among the functions of the ABA, for example, are the allocation and renewal of licences (s 158(c)) and the design and administration of price-based systems for the allocation of commercial television and radio broadcasting licences (s 158(e)). It is hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. This is particularly so, given that the "general policies of the Government notified by the Minister under section 161" unlike the "directions given by the Minister in accordance with this Act" are not required to be publicly recorded and that even those with experience in public international law sometimes find it difficult to ascertain the extent of Australia's obligations under agreements with other countries. In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.
In my view, this reasoning bears no application to the text, context or purpose of s 90(2) of the CLA.
Fourth, in my opinion, the consequences of holding void every act done in breach of s 90(2) are not as publically inconvenient as the Minister contends. The Minister submitted that inconvenience will result because, if the Gazette is not determinative of the status of public land, persons will have to "go behind" the notification in the Gazette and check that a valid notice of the notification has been published, an admittedly difficult endeavour given that the search would not be limited either as to time or as to publication.
But, as the Land Council asserted, the Gazette is not, and does not purport to be, a conclusive register of Crown land holdings, and there is nothing especially novel about a legally ineffective Gazette notification. There would be (subject to a contrary clause in the contract for sale: cf special condition 30.2) nothing, for example, precluding an interested purchaser of Crown land requesting from the Department evidence of, or a warranty relating to (again, see, for example, special condition 30.2 of the contract for sale), compliance by the Minister with his statutory duties under the CLA. Moreover, the fanciful assumption implicit in the Minister's submission that the most widely read print medium among the wider public is the Gazette, and not, as is patently more likely the case, a local or general newspaper, should be rejected.
Fifth, the consequences of finding invalidity under s 90(2) generally, or in this instance, are not unacceptably broad. That non-compliance with s 90(2) might render a contract of sale of Crown land void is not, of itself, a reason to read s 90(2) in a manner that would denude it of all force (it is, in any event, s 34(6), read together with s 6, that would render the contract void).
A similar argument was rejected, correctly, in my view, by Lloyd J in Kinchela (at [68]-[77], and the authorities cited thereat).
Sixth, to the extent that the Minister complained that if the totality of the Land Council's submissions were accepted as correct, s 90(2) could be breached only "in a minor fashion" with resultant invalidity, the question before this Court is not whether the "intention that any departure" from s 90(2) "would result in invalidity without consideration of the extent and consequences of the departure" (Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [35] and see also at [34] and [36] per French CJ, Gummow, Hayne, Crennan and Bell JJ). Rather, the question before this Court is whether the wholesale failure to comply with the essential ingredients of s 90(2) of the CLA would result in invalidity. In my view, it did. The s 34 notice provided neither effective nor, to use the Minister's words, "substantial" compliance for the reasons given earlier.
It is not, of course, always the case that a statutory obligation, even one framed in imperative language, will inevitably create "inviolable restraints conditioning" executive decision-making (SZIZO at [36]). There are often questions of degree that accompany breaches of legislative prescription. In SZIZO it was therefore held that there was no denial of natural justice occasioned by a tribunal's failure to give notice to an authorised recipient strictly in accordance with the manner prescribed, in circumstances where there were no adverse consequences to the family because the family in fact attended the hearing, gave evidence and made submissions. The statutory scheme had provided that the tribunal "must give the authorised recipient, instead of the applicant, any document it would have otherwise given to the applicant". This never occurred.
The High Court nevertheless refused to find invalidity reasoning that (at [34]-[36]):
34. In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review.
35. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being "rather absurd". The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
34. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
This may be contrasted with the present case where, it was not so much a question of the "manner of providing timely and effective notice" (SZIZO at [34]), but the content of that notice, inasmuch as there was no s 90(2) notice and the s 34 notice was deficient in critical aspects. Put simply, there was no "effective notice" because the s 34 notice - the only one published - omitted to disclose that the land to be sold or leased was subject to a reservation that the Minister intended to revoke. As earlier stated, the omission denied members of the public the opportunity of objecting to the very subject-matter that s 90(2) of the CLA was directed to. The breach of that provision was, in my opinion, wholesale and not merely technical, as the Minister sought to characterise it.
This point also serves as the basis for dismissing the Minister's argument that, by analogy, where a prior failure to afford procedural fairness can sometimes be remedied by subsequently providing an opportunity to be heard during the same decision-making process (citing Area Concrete Pumping Pty Ltd v Childs (WorkCover) [2012] NSWCA 208 at [82] per Basten JA), in this instance, if there was a procedural defect in the decision to sell the land by the Minister, it was cured because, as a matter of practicality, notice had been provided to interested members of the public by the publication of the s 34 notice and the public tender advertisements identifying the land.
The fact remains, however, that no notice indicating an intention to revoke the reservation, or even that the land was subject to a reservation, was ever given. If an analogy with procedural fairness is apposite at all, it is to the effect that none was relevantly afforded.
Finally, the Minister emphasised that the particular non-compliance was neither deliberate nor malicious. As the evidence of Mr Childs establishes, this factual proposition should be accepted. But the factual finding is of no consequence. The absence of bad faith or fault cannot validate an otherwise invalid decision (Wei at [23]).
In my opinion, therefore, the correct interpretation of s 90(2) results in the conclusion that an act done in breach of the legal obligation imposed in that section is invalid.
There is no sound reason not to follow, and apply, both the reasoning and the authorities referred to in Kinchela. I propose to do so. The contract for sale is therefore invalid.
While the resultant consequence of this conclusion gives rise to issues that must be left for determination to another day, and perhaps, to another Court, this is no reason not to answer, as the Minister urged, the first separate question in the affirmative.
It follows, therefore, that both separate questions should be answered in the affirmative.