Non-compliance with s 61A of the Commons Management Act
80Ground 1 of the applicant's challenge to the revocation of the setting aside of the land as a common turns on two critical questions: first, what is the source of the power exercised to revoke the setting aside of the land as a common and, secondly, did the notice (or notices) comply with s 61A of the Commons Management Act?
81As to the first question, I find that there was power under s 87(1) of the Crown Lands Act to reserve the land previously devoted to temporary commonage for a different purpose and that inconsistent reservation impliedly revoked the previous devoting of the land to temporary commonage. The reservation was required to be by notification in the Gazette (s 87(1) of the Crown Lands Act) and took effect on publication of the notification (s 87(2) of the Crown Lands Act). Thereupon, revocation by implication was effected by the same notification published in the Gazette, as required by s 61A(1) of the Commons Management Act. I will explain my reasons for so concluding.
82In 1876, when the land was devoted to temporary commonage under the Crown Lands Occupation Act 1861, the land remained Crown land. "Crown Lands" were defined in s 1 of the Crown Lands Occupation Act 1861 as "All 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 to any person in fee simple."
83The devoting of lands to temporary commonage did not "dedicate" land to a public purpose. Dedication involves a grant by the Crown of land for a public purpose. Dedication involves more formality and permanency than mere reservation. Land dedicated for a public purpose is removed from the control of the Crown; it ceases to be Crown land because of the definition of "Crown lands". It could therefore not be dealt with or disposed of, such as being leased or sold. However, this immutability and perpetuity yields to a statute. Hence, Crown lands legislation prescribed a formal procedure for revocation of earlier dedications, including laying the proposal for revocation of the dedication before both Houses of Parliament: Randwick Corporation v Rutledge (1959) 102 CLR 54 at 74-77; Andrew G Lang, Crown Land in New South Wales (1973) Butterworths at 77-78, 80-82; and see now s 84 of the Crown Lands Act.
84Reservations of Crown land, including devoting land to temporary commonage, were temporary reservations of the land from certain uses or transactions, such as from sale or lease, for any public purpose. Reservations could be revoked by the Governor or by subsequent reservation inconsistent with the prior reservation: see Randwick Corporation v Rutledge at 74-77; and Lang, Crown Land in New South Wales at 83, 89-90.
85Reservations did not remove Crown land from the control of the Crown: the reserved land remained Crown land. In other words, the mere reservation of Crown land did not constitute a dedication of the land, dedication being a separate process: Ex parte Penniment (1891) 12 LR (NSW) 68 at 69-71; Randwick Corporation v Rutledge at 74, 77; and Lang, Crown Land in New South Wales at 84-85.
86This distinction between dedication and reservation continues to date, with the current power to dedicate land being s 80 of the Crown Lands Act while the power to reserve land is s 87 of the Crown Lands Act.
87The status of the land devoted to temporary commonage in this case as Crown land was not altered by subsequent Crown land legislation. The definition of "Crown lands" under s 4 of the Crown Lands Act 1884 (48 Vic No 18) and s 5 of the Crown Lands Consolidation Act 1913 was slightly different to the definition of "Crown lands" in s 1 of the Crown Lands Occupation Act 1861 in that it referred to lands which had not been "permanently dedicated". Crown lands meant "lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple". However, this had no effect on the land in this case as the devoting of the land to temporary commonage neither "dedicated" nor "permanently dedicated" the land for public purpose.
88The definition of "Crown land" in s 3(1) of the Crowns Lands Act 1989 reverted to the terminology of the 1861 Act of excluding "land dedicated for a public purpose" without reference to permanent dedication. "Crown land" is defined in s 3(1) of the Crown Lands Act to mean "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."
89The land in this case was vested in the Crown and has not been "dedicated for a public purpose", because the devoting of the land to temporary commonage did not constitute dedication. The land therefore continued to be Crown land.
90A reservation of land can be revoked either by exercise of an express power of revocation of a reservation of land or by implication by reservation of the land, which reservation is inconsistent in its intended effect on the land, such as reserving it for a different public purpose, to the prior reservation of the land: Minister for Lands v Nestrom (1899) 20 LR (NSW) 167 at 168; Taylor v Minister for Lands (1902) 19 WN (NSW) 178 at 179; In re Gleeson (1903) 3 SR (NSW) 470 at 472-473, 474; and Lang, Crown Land in New South Wales at 90.
91Under the current Crown Lands Act, the express power to revoke a reservation is s 90, but revocation by implication can occur by exercise of the power to reserve land or add land to a reservation under ss 87 and 88 respectively and, upon publication of a notification of reservation or addition to a reservation, any other reservation applying to the land is revoked, unless the notification expressly provides otherwise: s 89(2) of the Crown Lands Act.
92The applicant submits, however, that the power to reserve land under s 87 of the Crown Lands Act, and hence the power of revocation by implication, is not available for two reasons. The first reason is that the land was not "Crown land" and hence s 87, which empowers the Minister to reserve Crown land, was not applicable. This submission was originally based on s 24 of the Commons Management Act, which provides that, upon the revocation of the setting aside of a common, the trust established for that common is dissolved and the Minister may deal with any property of the trust as if it were Crown land. The applicant submitted that this showed that the land set aside as a common in this case was not Crown land and could not be dealt with as if it were Crown land until the setting aside of the land as a common was revoked or otherwise terminated. Hence, the land which had been set aside as a common could only be revoked expressly and not by implication because the power of reservation for an inconsistent public purpose (and hence revocation by implication) was not available.
93This submission fails to recognise that the notification published in 1876 devoting the land to temporary commonage did not remove the land from being Crown land; the land remained Crown land ( Ex parte Penniment (1891) 12 LR (NSW) 68 at 69-71) and hence able to be reserved under s 87 of the Crown Lands Act.
94The second reason was that the verb "reserve" in s 87 of the Crown Lands Act had the same meaning as the definition for the noun "reserve" in s 78 which excludes a common within the meaning of the Commons Management Act. That section defines "reserve" to mean:
"land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913 , not in either case being:
(a) a common within the meaning of the Commons Management Act 1989 ,
(b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902 , or
(c) land, or land of a class, in respect of which an order under section 79 is in force."
95Hence, the applicant submits, the Minister did not have power under s 87 of the Crown Lands Act to reserve land that was a common within the meaning of the Commons Management Act. The land in this case, being devoted to temporary commonage, was a common within the meaning of that word in s 3(1) of the Commons Management Act.
96The respondents submit that the verb "reserve" in s 87 of the Crown Lands Act does not bear the meaning of the noun "reserve" in s 78 of the Crown Lands Act because, first, as a matter of construction, the defined word "reserve" only applies to the noun "reserve" where it occurs in Part 5 and Schedules 3, 4 and 5 of the Crown Lands Act and not to the verb "reserve" where it occurs in Part 5 and Schedules 3, 4 and 5 and, secondly, a definition always only applies unless the contrary intention appears: Buresti v Beveridge (1998) 88 FCR 399 at 401; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at 389.
97I agree with the respondent's submissions. The definition of "reserve" in s 78 of the Crown Lands Act only applies if the word "reserve" is used as a noun or an adjective describing a noun (such as in Divisions 4-8 of Part 5 and Schedules 3, 4 and 5) and not where the word "reserve" is used as a verb (such as in Division 3 of Part 5). Indeed, if this were not to be so, there would be no power to reserve land as a common under s 87 of the Crown Lands Act and there is no other power to reserve land as a common under the Crown Lands Act or under the Commons Management Act.
98The provisions of Division 3 of Part 5 of the Crown Lands Act govern the process of reservation of land. The provisions of Divisions 4-8 of Part 5 then apply to land that has been reserved by this process (or the process under former Crown lands legislation) and thereby has become a reserve, except for certain types of reserve, and govern the management of the reserve. The definition of "reserve" in s 78 specifies these excluded types of reserve, one of which is a common with the meaning of the Commons Management Act. The management of these excluded types of reserves is dealt with under other legislation referred to in the definition, including for a common, the Commons Management Act.
99Hence, the definition of "reserve" in s 78 of the Crown Lands Act has no application to the word "reserve" in s 87(1) and "reservation" in s 87(2) of the Crown Lands Act.
100For these reasons, the Minister did have power under s 87(1), by notification in the Gazette, to reserve the land in this case, which had been devoted to temporary commonage, for future public requirements or other public purpose.
101As a matter of fact, the Minister stated by the notifications published in the Gazette on 16 April 2010 with the Erratum published in the Gazette on 30 April 2010 that he exercised the power under s 87 to reserve the land for the public purpose of rural services.
102The second question is whether the notifications published in the Gazette on 16 and 30 April 2010 were effective to reserve the land (and hence impliedly revoke the prior setting aside of the land as a common).
103The applicant submits that s 61A of the Commons Management Act is an example of a statutory provision where the publication of the notice in the Gazette is the very act by which the power to revoke the setting aside of land as a common is exercised and is distinguishable from a statutory provision which confers a power to make a decision, evidence of which is to be published by notification in the Gazette: Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 353; Nicholson-Brown v Jennings [2007] FCA 634; (2007) 162 FCR 337 at [26]-[27]. Hence, the applicant submits, the validity of the purported revocation in this case depends on the adequacy of the notices published in the Gazette on 16 and 30 April 2010.
104The applicant then submits that neither of the notices published on 16 and 30 April 2010 could be said to be a notice under s 61A of the Commons Management Act. The notice published in the Gazette on 16 April 2010 was not a notice under s 61A because it:
" • makes no reference to the revocation of the setting aside of any land as common;
• makes no reference to a common;
• does not purport to be a notice under the CM Act;
• makes no reference to the CM Act;
• purports to give notice of the reservation of Crown land;
• purports to deal with Crown land;
• represents that the land in Column 1 of the Schedule to the Reservation Notice is Crown land; and
• purports to give notice of the exercise of powers under s 87 of the Crown Lands Act." (para 28 of Applicant's Outline of Submissions).
105The applicant submits the note to Schedule 2 ("Note: Reserve 170176 is hereby auto revoked by this notification") appears to be a reference to the effect of s 89(2) of the Crown Lands Act. However, the applicant submits, because the Minister could not reserve the land under s 87 of the Crown Lands Act, no other reservation applying to the land could be revoked by the operation of s 89(2) of the Crown Lands Act.
106The applicant submits that the Erratum notice published on 30 April 2010 is not itself a notice under s 61A of the Commons Management Act and also does not effect any alteration to the notice of 16 April 2010 but rather simply gives notice of the errors the earlier notice contained.
107Furthermore, the applicant submits that the correction made by the Erratum notice to the note in Schedule 2, so that it read "Note: Common 170176 is hereby revoked pursuant to s 61A of the Commons Management Act 1989", was not effective because there was no indication that the note to Schedule 2 was intended to operate independently of Schedule 2 and hence, when the balance of Schedule 2 fails, the note must fail with it.
108I reject the applicant's submissions that the notices published in the Gazette on 16 and 30 April 2010 do not effect revocation of the setting aside of the land as a common for three reasons: first, s 61A(1) of the Commons Management Act is not the only source of power to revoke the setting aside of land as a common; secondly, the notice published in the Gazette on 16 April 2010 was effective under ss 87 and 89 of the Crown Lands Act to reserve the land and revoke by implication the setting aside of the land as a common; and thirdly, the notice published in the Gazette on 16 April 2010 as amended by the Erratum notice published in the Gazette on 30 April 2010 was effective under s 61A of the Commons Management Act to revoke the setting aside of the land as a common. I will deal with each reason.
109First, the applicant's submissions are founded upon s 61A(1) of the Commons Management Act being the only source of power to revoke the setting aside of the land as a common and that ss 87(1) and 89(2) of the Crown Lands Act are inapplicable. For reasons I have provided earlier, this is incorrect. There is power under s 90(1) of the Crown Lands Act to expressly revoke a reservation of the land (although this power was not exercised in this case). There is also power under s 87(1) of the Crown Lands Act to reserve land for a different public purpose, such as rural services, and the exercise of that power to reserve the land for a purpose inconsistent with the prior reservation of the land, such as devoting land to temporary commonage, by implication revokes the prior reservation of the land by operation of s 89(2) of the Crown Lands Act.
110The reservation of the land was required to be effected by notification in the Gazette (s 87(1) of the Crown Lands Act) and the reservation took effect on publication of the notification in the Gazette of that reservation (s 87(2) of the Crown Lands Act). Revocation of any other reservation of the land also took effect on publication of the notification of reservation (s 89(2) of the Crown Lands Act). These requirements for notification and taking effect of the reservation of land and the revocation of any prior reservation are coterminous with the requirements of s 61A(1) of the Commons Management Act that revocation is to be effected by notice published in the Gazette.
111Hence, the publication of notification in the Gazette of the reservation of the land can have two simultaneous effects: first, the reservation of the land for the specified public purpose (by operation of s 87(2) of the Crown Lands Act) and, secondly, the revocation by implication from that reservation of any prior reservation of the land (by operation of s 89(2) of the Crown Lands Act).
112Once it is recognised that there is power in the Crown Lands Act to revoke a prior reservation of land, both expressly and by implication from an inconsistent subsequent reservation, the applicant's argument that publication of a notice under s 61A(1) of the Commons Management Act is the very act by which the power to revoke the setting aside of land as a common is exercised can be seen to be incorrect. Undoubtedly, s 61A(1) does require notice of any revocation of the setting aside of land as a common to be published in the Gazette. But this requirement does not make s 61A the only source of power of revocation of the setting aside of land as a common or the publication of the notice the act by which such power is exercised. As the respondents submit correctly, the decision in Edenmead Pty Ltd v Commonwealth is distinguishable both in terms of the legislative provision and scheme there involved, compared to the legislative provisions and schemes involved here, and in terms of the reasoning employed.
113Secondly, the notice published in the Gazette on 16 April 2010 was effective under ss 87(1) and 89(2) of the Crown Lands Act. The notice described the two effects of reservation and implied revocation: first, the notice described the land affected (relevantly the land described in Column 1 of Schedule 2), the manner in which it was affected (reservation for the public purpose of rural services as specified in Column 2 of Schedule 2) and the statutory authority under which the Minister was acting (s 87 of the Crown Lands Act) and, secondly, the notice stated that such reservation of the land revoked the prior reservation applying to the land (by the note to Schedule 2 stating that "Reserve 170176 is hereby auto revoked by this notification").
114The note to Schedule 2 was a fair description of the operation and effect of s 89(2) of the Crown Lands Act which provides that, on publication of a notification of reservation, any other reservation applying to the land is revoked. The reference to "Reserve 170176" was the identifier given to the land described in Column 1 of Schedule 2 which had been devoted to temporary commonage. I do not consider that the provisions of s 89(2) of the Crown Lands Act require, as a condition of validity of the notification of reservation and the consequential operation of s 89(2) to revoke any prior reservation, that the notification of reservation expressly specify the terms of any other reservation of the land. Indeed, s 89(2) of the Crown Lands Act operates to the contrary so as to revoke any other reservation of the land unless the notification expressly provides otherwise. The section, therefore, requires express provision of what is not to be revoked not what is to be revoked.
115It is sufficient in this case that the notification of reservation identified that there was a prior reservation of the lands described in Column 1 of Schedule 2 ("Reserve 170176") and that the effect of publication of the notification of reservation of the land for a different purpose was that the prior reservation was revoked ("is hereby auto revoked by this notification").
116The notification published in the Gazette on 16 April 2010 did, therefore, satisfy the statutory requirements in s 87(2) of the Crown Lands Act and effect both the reservation of the land for the public purpose of rural services under s 87(1) of the Crown Lands Act and the revocation of the prior setting aside of the land as a common under s 89(2) of the Crown Lands Act.
117Thirdly, the notification published in the Gazette on 16 April 2010 as amended by the Erratum notice published in the Gazette on 30 April 2010 also satisfied the requirements of s 61A(1) of the Commons Management Act.
118On one construction of s 61A(1) of the Commons Management Act, the notification published in the Gazette on 16 April 2010 did what was required by s 61A(1): it was a "notice published in the Gazette" and by operation of s 87(1) and (2) and s 89(2) of the Crown Lands Act, the notice effected the revocation of the setting aside of the land as a common. Hence, in the terms of s 61A(1) of the Commons Management Act, the revocation of the setting aside of land as a common was effected by the Minister by notice in the Gazette. On this construction, it is not necessary that the notice be specified expressly to be a notice under s 61A(1) of the Commons Management Act; it is sufficient if it is a notice published in the Gazette under any applicable statutory provision which effects the revocation of the setting aside of land as a common (which could be, but would not have to be, s 61A(1) of the Commons Management Act but could also be s 87(1) or s 90(1) of the Crown Lands Act which all provide for notification in the Gazette).
119This is not such a strange construction given that s 61A was only inserted in 2005 (by Schedule 1.5(3) of the Statute Law (Miscellaneous Provisions) Act (No 2) 2005). Prior to that, from the date of commencement on 1 September 1991, the Commons Management Act had no requirement for publication of a notice of revocation of the setting aside of land as a common. Yet, there were other provisions which dealt with the consequences of revocation of a common (such as s 24 of the Commons Management Act). The powers to revoke the setting aside of a common lay outside the Commons Management Act and were in the Crown Lands Act. These powers included the express power to revoke a reservation of land under s 90(1) as well as the power to reserve land or add land to reserved land under ss 87(1) and 88(1), which reservation or addition to a reservation revoked any other reservation applying to the land (s 89(2) of the Crown Lands Act). The requirements for publication of a notification that expressly or impliedly effected a revocation of a reservation also lay outside the Commons Management Act and were in the Crown Lands Act (s 90(3) for express revocation and ss 87(2), 88(2) and 89(2) for implied revocation). One cannot conceive that it was the legislature's intention, by inserting s 61A into the Commons Management Act, to render these provisions ineffective.
120Nevertheless, the provision in s 61A must be given some work to do. I consider the provision can be given work to do by construing it as providing a requirement for notification supplementary to the requirements for notification which otherwise apply under the Crown Lands Act where the nature of the prior reservation of Crown land being revoked is of the setting aside of Crown land as a common. It is to be remembered that Crown land can be reserved in different ways; it can be reserved from sale, lease or licence or for future public requirements or other public purpose. The setting aside of Crown land as a common is but one of the ways Crown land can be reserved. Whilst the provisions in the Crown Lands Act for notification of revocation, either expressly or by implication from later reservation, apply generally, where the reservation being revoked either expressly or by implication from later reservation is of the setting aside as a common, notification must also be given under s 61A(1) of the Commons Management Act. Hence, where there is proposed to be revocation of a reservation of the land as a common by implication from a later reservation under s 87(1) of the Crown Lands Act, the notification required must also satisfy the requirements of s 61A(1) of the Commons Management Act.
121There is no statutory requirement as to the content of a notice under s 61A(1) of the Commons Management Act. Nevertheless, the applicant submits that s 61A(1) requires, at a minimum, that the notice: identify the relevant land; give notice that the setting aside of the land as a common is revoked; and identify the source of power which is being exercised. The applicant submits that the notice published in the Gazette on 16 April 2010 does not satisfy the second and third requirements and the Erratum notice published in the Gazette on 30 April 2010 did not cure these deficiencies.
122The respondents submit that none of these requirements are found in the wording of s 61A. The respondents further submit, in relation to the third requirement, that it would be contrary to a long line of authority commencing with Moore v Attorney-General for the Irish Free State [1935] AC 484 at 498 to imply a requirement that an exercise of power is valid only if the statutory source of power is correctly identified: see R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Brown v West (1990) 169 CLR 195 at 203; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85-89; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124].
123The respondents submit that the notice published on 16 April 2010 met the first and second requirements but even if it did not, the Erratum notice altered the first notice so that the two notices, read together, complied with the first and second requirements. The third requirement was not a requirement at law and did not need to be satisfied.
124I consider that, if s 61A(1) is to be construed as imposing supplementary requirements for notice where the revocation is of the setting aside of land as a common, then s 61A(1) should be construed as requiring the notice published in the Gazette to identify the land affected, that the land has been set aside as a common, and that by the notice the setting aside of that land as a common is revoked. I do not consider it is a requirement to identify the source of the power of revocation being exercised by the Minister. One reason is that the power of revocation being exercised by the Minister may not be s 61A of the Commons Management Act but may be under the Crown Lands Act. Another reason is the submission by the respondent that it would be contrary to the authorities, that a mistake as to the source of power works no invalidity, to imply a requirement that the notice must correctly identify the source of power in order to be valid.
125By reference to these requirements of s 61A(1), the notice published in the Gazette on 16 April 2010 is deficient. The notice does identify the land affected by the notice (being, the land identified in Column 1 of Schedule 2) as a common but does not state that such land has been set aside as a common or that such setting aside as a common has been revoked. The reference to "Reserve 170176" does not disclose that such a reserve is a common and hence the statement that "Reserve 170176 is hereby auto revoked by this notification" does not disclose that it is the setting aside of the land as a common that is being auto revoked by the notification.
126The Erratum notice published in the Gazette on 30 April 2010, however, corrects these deficiencies by the substituted note to Schedule 2. The Erratum provides that the land identified in Column 1 of Schedule 2 which was described in the former note in the 16 April 2010 notice as "Reserve 170176" should have been described as "Common 170176" and that it is the common that is "hereby revoked" by the notice published in the Gazette. The note substituted by the Erratum goes further to identify that Common 170176 is revoked "pursuant to s 61A of the Commons Management Act 1989". Express reference in the notice to s 61A may not be a requirement of s 61A(1) but the inclusion of the reference to that section (which deals with revocation of the setting aside of land as a common) makes it clear that it is the setting aside of the land identified as Common 170176 that is revoked by the notice published in the Gazette.
127I agree with the respondents' submissions that there is power to publish an erratum which effects an alteration of the original notice. The respondents referred to ss 3(2) and 48 of the Interpretation Act 1987 and Edenmead Pty Ltd v Commonwealth at 353-354. In this case, the Erratum notice effected an alteration of the original notice. The two notices are, therefore, to be read together.
128I reject the applicant's submission that the Erratum notice is ineffective to cure the deficiencies in the original notice. It is true that the Erratum notice is not by itself a notice that complies with s 87(1) of the Crown Lands Act or s 61A(1) of the Commons Management Act, but it was not intended to be. Rather, the Erratum notice corrected the errors perceived to exist in the original notice. Although the Erratum notice uses the words "should have read" rather than more imperative words such as "is to read", the intent of the Erratum is plain enough: the original notice is to be corrected by omitting the identified, erroneous words and inserting instead the specified, substitute words. Relevantly, as to the note to Schedule 2, the Erratum notice was intended to have the effect of omitting the former note "Note: Reserve 170176 is hereby auto revoked by this notification" and inserting instead a new note "Note: Common 170176 is hereby auto revoked pursuant to s 61A of the Commons Management Act 1989." I consider that the Erratum notice should be construed as actually having this effect.
129On this basis, the notice published in the Gazette on 16 April 2010, as altered by the Erratum notice published in the Gazette on 30 April 2010, satisfied the statutory requirements of s 61A(1) of the Commons Management Act and effected the revocation of the setting aside of the land as a common.
130For these reasons, I reject the applicant's challenge in Ground 1 of the Amended Points of Claim.