Williams v Attorney-General (NSW) [1913] HCA 33

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which latter was immaterial, but what was material was that the were outside a would-be purchaser's reach. If the Crown chose to make them available by bringing them within the definition, just as private lands subsequently sui dered to the Crown would be, there was nothing to cut down th Royal right to sell subject to the Statute. The all important consideration, in fine, with respect to the Act 5 & 6 Vict. ¢. 36, which it may be mentioned was passed in June of 1842, is that it represented a distinct line of policy - that of maintaining, under regulation, the exclusive Home right of dis- posing of waste lands. This fact of exclusive right was emphasized in the following month of July, when the Act 5 & 6 Vict. c. 76 was passed enlarg- ing the constitutional power of the Colony. Sec. 29, enabling - the legislature to enact laws for the peace, welfare, and good government of the Colony, forbade any interference with the sale a or other appropriation of the lands belonging to the Crown within the Colony or the revenue thence arising. Note, the prohibition is not merely as to "waste lands" as defined previously, but as to the lands belonging to the Crown, all of which might - in the opinion of Parliament - have otherwise come within its purview. (11) The Act 9 & 10 Viet. e. 104. - One well-known result of - the Land Sales Act (5 & 6 Vict. c. 36) was that squatters could - not afford to buy, at the price, the necessary tracts of lands for their runs. 'They simply occupied the land illegally. Difficulties arose, and these were met by the Act of 9 & 10 Vict. c. 104, which - was the complement of the earlier Statute and part of the same " policy: See Earl Grey's statement in a despatch to Governor - Fitzroy dated 29th November 1846 (House of Commons Papers, 1847, vol. xxxvuL, pp. 499, 500), and Merivale's Colonization and Colonies, pp. 470, 471. as Observations similar to those addressed to the principal Act - apply to this amending Act, and particularly may I refer to sec. 1, which speaks of "any waste lands of the Crown," and this necessitates the strict definition in sec. 9 of the words " waste E: lands of the Crown, as employed in this Act." When in 1850 the Act of 13 & 14 Vict. ¢. 59 was passed, the prohibition on the Colonial legislature was continued (sec. 14) against interfering

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no repetition of the definition contained in the former Acts, but the Imperial legislature, when transferring all legislative power over the waste lands of the Crown in New South Wales, was: careful to state expressly what limitations it intended once and for all to place upon its grant of power. In see. IL. it set that out in the proviso in the words : - *'That nothing herein contained - shall affect or be construed to affect any contract or to prevent the fulfilment of any promise or engagement made by or on - behalf of Her Majesty with respect to any lands situate in the ~ said Colony, . . . . nor to disturb or in any way interfere with or prejudice any vested or other rights which have accrued - or belong to the licensed occupants or lessees" under the re- pealed Acts or any Orders in Council- - the latter referring to the squatters. 7 It is abundantly plain to me that, except for vested interests and the proceeds of lands already sold (see sec. 3 of 18 & 19 Vict. - c. 56), the whole control and management of waste lands of New South Wales and their proceeds were parted with absolutely by the Crown, as well as all other powers of local government not _ expressly excluded as in sec. 45. The old Acts passed away with the policy of which they formed part, and the Colonial Govern . ment succeeded to control as if those Acts had never been passed, In accordance with this plan, sec. 1 of the Constitution dis- played a marked alteration. The power to make laws was now to be "in all cases whatsoever," and there was no longer any _ restriction as to Crown lands. Sec. 43 of the Constitution says : - "Subject to the provisions herein contained it shall be lawful for the legislature of this Colony to make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown within the said Colony." The only limiting provisions material to this case are contained in the proviso to sec. 58, which are those in the proviso to see. II. of the covering Act. Those limiting provisions long ago became exhausted, and sec. 8 of the Constitution Act 1902 significantly contains no limitation whatever. In Attorney-General v. Eagar - (1) the Supreme Court of New South Wales held the Crown bound on the ground that the land was dedicated to charity and, -

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Now, what evidence is there of any relinquishment of its full rights of ownership, on the part of the Crown? A number of documents, interesting historically, have been collected from the time of the first settlement by Governor Phillip onwards ; and it is urged that, as the result of these documents, it is to be inferred that the land was permanently dedicated to the public use of a residence for the Governor. There has been no Act to that effect ; there has been no proclamation to that effect ; there has not been any matter of record or deed to that effect. There certainly has been a series of letters, covering several years, passing between the Governors and the Secretary of State for the Colonies, as to the provision of a residence for the Governors; and in 1845 Governor Gipps entered this residence. When pressed to say when the dedication was complete, Mr. Know put this entry of Governor Gipps as being the latest date to which the dedi- cation or setting apart could possibly be referred. But there is no evidence of anything in the nature of dedication. It is doubtful whether there can be any effectual dedication, or setting apart, or appropriation by the Crown for the purpose of such a residence, except by matter of record: Chitty on Preroga- tive, p. 389. In the case of Attorney-General v. Eagar (1) the dedication to the purposes of religion and education was made by letters patent executed by the Queen ; and in these letters patent it was expressly provided that, if the corporation thereby created to be trustee should be dissolved, any lands granted to it should revert to Her Majesty to be held and applied to the same pur- poses of religion and education. Successive Governors " re- served " - held back - from sale a large but diminishing area of the frontage to the harbour, and the Jand in question was part of the area; but no evidence has been produced to show either that the Governors had power, or that they intended, to bind the Crown as to the purposes for which this land was to be used. The letters patent of the Governors have not been put in evidence, nor the commission, nor the instructions ; but, by consent of the parties, we have looked at the letters patent issued to the first Governor,

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of 17 Vict. No. 41, in the schedule). The Colonial legislature could make laws with respect to these lands; but what if there are no laws made applicable? If, by virtue of letters patent granted or other authority conferred before the Constitution, the Governor had power to manage the land, and to remove erections thereon (ef. 9 & 10 Vict. c. 104, sec. 10), that power was not affected by the Constitution, but remained. There is nothing in the Con- stitution to take away any power which the Governor had at _ .the time of the Constitution (and see secs. 42 and 57 of 17 Vict. No. 41); but, under the instructions given by his principal, his _ duty was, in the execution of his powers, legal and discretionary, _ to consult with his Executive Council. That is to say, the Governor in Council can exercise the powers of the Governor ; and the Governor in Council is the Government of New South Wales; and the nominal defendant Williams represents the Government. It is true that no evidence has been produced, no Act has been cited, to show that such a power of management was ever conferred on the Governor; but there is no issue raised by the information as to the rights of the King in the absence of dedication ; there is no issue to which such evidence, or such an Act, would have been relevant. The information is based solely on the allegation of a permanent dedication of the land to the public purpose of a residence for the New South Wales Governors (par. 8); and the allegation has not been proved. As there was no dedication, this case must fail. Besides, if the right of the King to this land, in his capacity as ruler of all parts of the Empire, were to be tested by litigation as against the King in his right of New South Wales, the Attorney-General for New South Wales could not fitly represent the King in asserting the former right as against the Government of New South Wales - a Government of which the Attorney-General is himself a member, a Govern- ment which, as appellant, now seeks to have the information dismissed.

Williams v Attorney-General (NSW) [1913] HCA 33 - HCA 1913 case summary — Zoe

At a glance

Court

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Before

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Judgment (212 paragraphs)