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

1913. lic use - Alteration of use - Interest of public - New South Wales Constitution aS Act 1855 (18 & 19 Vict. c. 54), secs. IL. II. SYDNEY, it 3 F a = May 5, 6, 7, Practice - Parties - Action by Crown as representing one set of persons against 8, 9. Crown as representing another set of persons - Action to enforce a public trust Mrinourne, 8 £0 Orown land - Claims against the Government and Crown Suits Act 1912 June 19. (N.S. W.) (No. 27 of 1912), sec. 3, 4. Taal Prior to the New South Wales Constitution Act 1855, Government House, Tasos, Higeini Sydney, and the land on which it stands were used by the Crown for @ Powers and residence for the Sovereign's representative in New South Wales.

Held, that they were not so dedicated or set apart as to confer on the pub- lic, either of New South Wales or of the United Kingdom, any right against the Crown to have them used for that purpose.

Held, further, that the land was " waste land of the Crown" within the meaning of the Constitution Act 1855, and that by virtue of that Act the con- trol and management of it passed to the legislature of New South Wales, and, subject to the legislature, to the Executive Government.

Sec. 3 (1) of the Claims against the Government and Crown Suits Act 1912 provides that " Any person having or deeming himself to have any just claim

or demand whatever against the Government of New South Wales" may H. C. or A.

petition the Governor to appoint a nominal defendant, and that the Governor may appoint a nominal defendant accordingly. Sec. 4 provides that ' the petitioner may sue such nominal defendant at law or in equity in any compe- tent Court, and every such case shall be commenced in the same way, and the proceedings and rights of the parties therein shall as nearly as possible be the saine, and judgment and costs shall follow or may be awarded on either side as in an ordinary case between subject and subject."

Held, that an action may be brought in the Supreme Court of New South Wales under those sections by the Crown as representing one set of persons against the Crown as representing another set of persons and in respect of competing rights.

Where an action was brought under those sections by the Attorney-General for New South Wales on the relation of certain persons against a nominal defendant as representing the Government of New South Wales, alleging that certain land in New South Wales belonged to the King in his Imperial right, and was impressed with a trust in favour of the public, either of New South Wales or of the United Kingdom, and claiming a declaration to that effect, and a consequent injunction,

Held, that the Attorney-General for New South Wales did not represent the King in his Imperial right, whether as owner or as trustee, that such right was the foundation of the suit, and that the non-representation of the Crown in that right was fatal to the suit.

Queere, per Higgins J., whether the Attorney-General for New South Wales can succeed in an information against the Government of New South Wales for a trespass to which, as a member of the Government, he is a con- senting party ; and quere, whether in his capacity of adviser of the Governor he can sue himself in his capacity of adviser of the Governor.

Decision of the Supreme Court of New South Wales: Attorney-General v. Williams, 13 8.R. (N.S.W.), 295, reversed.

On the relation of Arthur Alfred Clement Cocks, Sir William MeMillan and Thomas Henley, an information was filed by the Attorney-General of New South Wales against James Leslie Williams (a nominal defendant appointed under the Claims against the Government und Crown Suits Act 1912 to represent the Government of New South Wales), which was as follows : -

In or about the year 1812 it was publicly proclaimed by His Excellency Governor Macquarie, the then Governor of New South Wales, that certain lands in New South Wales, extending from the present Circular Quay to Woolloomooloo Bay, had been enclosed and were reserved as a Government domain.

In or about the year 1817 a portion of the said enclosed and reserved lands was utilized for the purpose of building stabl for the use of the Governor, the said stables being the present, : Government House stables.

In or about the year 1829 the then Governor of New South Wales, His Excellency Governor Darling, caused to be duly published in the Government Gazette a list of the lands set apart - for public purposes, which list included the said enclosed and * reserved lands.

In or about the year 1832 an official report was made by the Surveyor-General of the Colony that it was expedient to erect a new residence for the Sovereign's representative in New South Wales, that certain portions of the said enclosed and reserved . lands should be sold and the proceeds expended in the building of the said proposed residence.

In or about the year 1836 a Committee of the Tense Council of New South Wales was duly appointed to consider the - question of a site for the said proposed residence, and the said Committee by its report recommended as such site an area of - land including what are now known as Government House - Grounds, which forms a portion of the said enclosed and reserved lands.

Acting upon the said reports, portions of the said reserved 3 and enclosed lands in Phillip Street, near Circular Quay, were sold, and the proceeds of such sales, together with a sum of money voted for the purpose by the said Legislative Council and - certain money supplied by the authorities in England, were - devoted to building the said proposed residence upon the said _ site for the Sovereign's representative aforesaid, which is the present Government House. ie

The said house and grounds became ready for occupation in or about the year 1845, and have ever since that time until Ist_ December 1912 been occupied as a residence for the Sovereign's : representative in New South Wales. ;

8, The informant submits that the said house and grounds were, by virtue of the matters hereinbefore set out, permanently dedicated to the public purpose of a residence for the Sovereign's representative in New South Wales, and that it is not within the

powers of the Government of New South Wales or the Governor in Council to interfere with or alter the said public purpose or to use or cause or allow to be used the said house and grounds for any purpose other than the public purpose aforesaid.

9. By an arrangement made between the Government of the Commonwealth of Australia and the Government of New South Wales, the said house and grounds were from the year 1900 to 1st December 1912 occupied as his residence in New South Wales by the Governor-General of the said Commonwealth as the repre- sentative of the Sovereign; the said arrangement has recently come to an end, and the members of the Government of New South Wales, after having met in Cabinet, have determined and announced publicly that the said house and grounds shall no longer be used as a residence for the Sovereign's representative in New South Wales but shall be devoted to some other purpose, and by reason of such determination the said house and grounds are now no longer used as a residence for the Sovereign's repre- sentative in New South Wales. The said grounds have recently been officially thrown open by the said Government and are now being used by members of the public.

10, The informant fears that, unless restrained by the order and injunction of this Court, the Government of New South Wales will carry this determination into effect so as to per- manently exclude the Sovereign's representative in New South Wales therefrom contrary to the public purpose to which the said house and grounds were dedicated.

1, That it may be declared that the said house and grounds are vested in His Majesty the King, dedicated to the public purpose of a residence for the Sovereign's repre- sentative in New South Wales;

2. That it may be declared that neither the Government of New South Wales nor the Governor in Council has power to interfere with or alter the said purpose to which the said house and grounds are dedicated ;

3. That the defendant, as nominal defendant for and on behalf of the Government of New South Wales, the Ministers, officers, and servants of the Crown may be

H. ©. or A. restrained by the order and injunction of this Court 7 a from using or causing or allowing to be used the said es house and grounds for any purpose other than the - a

graph of the prayer for relief, as well as in the formal decree, the H.C. or A.

intention to so regard him is placed beyond controversy. The distinction between an individual defendant and the Crown defendant is clear from Nireaha Tamaki v. Baker (1).

(2) The Decree. - The decree (1) declares that the house and grounds "are vested in His Majesty the King, dedicated to the public purpose of a residence for His Majesty's representative in New South Wales " ; (2) declares " that the action or concurrence of His Majesty's Imperial Government is necessary to divert the same from such purpose" ; and (3) orders an injunction against the defendant as nominal defendant for and on behalf of the Government of New South Wales and the officers and servants of the said Government - in other words, against the King repre- senting New South Wales and his servants in that character - against any unauthorized interference with that purpose. It is a decree denying the substantive right of the Crown on behalf of New South Wales to divert the land from the stated purpose. But nothing turns on the question of executive authority.

The decree assumes the contemplated act to be that of the Crown itself, so far as it can act locally. The Crown is in law the Executive; the Governor is the administrator of the Govern- ment (sec. IX. of 18 & 19 Vict. c. 54). He has a council to advise him in executive matters called the Executive Council, but, as it is assumed the contemplated act will be done by him though advised by his Executive Council, we must either assume that a formal order is unnecessary or that it will be made. This case, then, cannot be determined on the absence of executive formalities.

The real question is: Can the decree be substantially supported in law?

The first declaration consists of two parts: (a) that the house and grounds are vested in His Majesty the King - I take that to mean by virtue of his Imperial right; (b) that they are dedicated to the public for the purpose of a residence for the Governor of New South Wales - that, of course, means the public of New South Wales. The rest of the decree is consequential on those two findings. And the problem here is: Are those two findings correct ?

(3) Grounds of the Decree. - The conclusions of the learned

Chief Justice and Street J. certainly, and perhaps of Simpson

C.J. in Eq. also, were founded upon two considerations which, taken together, are thought to cover the whole ground.

One is - that when about 1835 or 1836, or at all events before 1842, the land in controversy - say 47 acres - was "dedicated or set apart" for the purpose of a Government House, the Imperial Government, which controlled the Colony, and the Governor, as its agent, dedicated or set apart the land for what was then and still is an Imperial purpose, and therefore - there is much virtue in the "therefore " - for the Imperial Government. That, it is said, vests the land definitely in the Imperial Government to start with, and, unless it is divested from that Government either by Statute or grant or despatch, it remains vested in the Home authorities.

The second consideration is of a negative character. It is - that, notwithstanding the grant of responsible government in 1855, the Colonial Government obtained no right to or control over this land. It is said that the Act 18 & 19 Vict. c. 54 did not by the general plenary grant of legislative jurisdiction confer pro- prietary rights; so that those rights, if then granted, must be sought elsewhere : that the Act gave the Colony the entire manage- ment and control of "the waste lands belonging to the Crown in the said Colony," preserving certain rights, but not of any other Crown lands; that the expression "waste lands" there used must be understood as it is defined in the Acts 5 & 6 Viet. c. 86 and 9 & 10 Vict. c. 104, and that, consequently, as this land was not within that definition, because dedicated or set apart for a public purpose, it was never placed under the proprietorship or management or control of the local Government, and still remains Imperial property.

On these two considerations, the executive "setting apart" of the land while New South Wales was still controlled from the

Colonial Office, and the effect of the legislative grant of respon: -

sible government - together with a third consideration, not adverted to in argument, viz. the present New South Wales Constitution - the matter depends.

In my opinion, it is quite impossible to arrive at a just appre-

ciation of the position, whether of fact or of law, unless the cir- H.C. or A.

cumstances are viewed as they occurred with the contemporary surroundings. Attorney-General of British Columbia v. Attorney- General of Canada (1), which is much relied on by Cullen C.J. and by Mr. Know, is a signal example of the necessity of follow- ing this course ; and, for that and another important reason, that case is a valuable precedent for the present case.

Before summarizing the various events one or two introductory observations must be made, because they indicate, so to speak, the soil upon which the events themselves were to operate.

(4) The Crown's Title to Colonial Lands. - It has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show a title. When Colonies were acquired this feudal principle extended to the lands oversea. The mere fact that men discovered and settled upon the new territory gave them no title to the soil. It belonged to the Crown until the Crown chose to grant it. Professor Jenks, in his History of the Australasian Colonies, at p. 59, observes that this purely technical and antiquarian fiction settled a question of the first magnitude. i

There was, as he says, "no Statute, no struggle, no heated debate. The Crown quietly assumed the ownership of Austra- lian land." I should add, this doctrine received very practical application when the Crown, by Governor Bourke's proclamation, approved by the Colonial Office, refused to recognize Batman's treaty with the native chiefs in 1835, and notified that persons found in possession of the lands would be treated as trespassers and intruders. So we start with the unquestionable position that, when Governor Phillip received his first Commission from King George III. on 12th October 1786, the whole of the lands of Australia were already in law the property of the King of England.

It follows that no act of appropriation, or reservation, or setting apart, was necessary to vest the land in the Crown.

The effect of any specific reservation or setting apart must depend upon the purpose and object with which it was made. This receives illustration in the British Columbia Case (1).

(5) Waste Lands of the Crown. - Then the expression " waste lands" of the Crown, apart from legislative definition, appears to have been understood long before Phillip's time down to 1842 to designate Colonial lands not appropriated under any title from the Crown. It is found in a despatch in 1800 from Licutenant- Governor Milnes of Lower Canada to the Duke of Portland (Egerton and Grant's Canadian Constitutional Development, p. 115); in 1829 in the New South Wales Act 10 Geo. IV. No. 6. In 1836 Mr. Wakefield, in giving evidence to the House of Com- mons Committee, on whose report the Act 5 & 6 Vict. c. 36 was framed and passed, constantly referred to the " waste lands" of Australia as opposed to the land appropriated, that is, by settlers: See, for instance, questions 995 and 1006 (printed by order of the House of Commons, Ist August 1836). I need hardly say my reference to these and similar materials is not for the purpose of construing the Acts, but to ascertain the prior sense in which terms used in the Acts were used, and, particularly, in materials before Parliament when the Acts were passed. See also the term "waste lands" in question 1002 in relation to the public lands of the United States. In Mr. Merivale's lectures on " Coloniza- tion and Colonies," delivered in 1839, 1840 and 1841, a critical period so far as this case is concerned, the term is freely used in its full general sense - see, for instance, pp. 107 and 432, which will be referred to later in another connection.

Finally, the term is used in Earl Grey's despatch to Governor Fitzroy of 29th November 1846: See House of Commons Papers 1847, vol. XXXVIIL., p. 497.

(6) "Set Apart," its Meaning and Effect - Another expression found in the Act of 1842 requires reference. I mean the words "set apart." After full consideration, that term appears to me to denote merely a segregation in fact, a laying aside from the general mass. It does not necessarily involve the creation of a right in another ; though in many cases it is the preliminary step to the creation of such a right.

But the setting apart is complete before and independently of the creation of any rights, The term as will be seen was used as early as 1763. i

Before the Act of 1842 was passed, the term was freely used

before the Select Committee referred to, in the sense of setting H.C. or A.

aside in fact: See, for instance, questions 1711 to 1724 in the evidence of Mr. Kelsey of the Colonial Office. Indeed, it is shown in that evidence that in some cases after reserves had been "set apart" for various purposes, as for villages or clergy, the reservations were abandoned, and the land fell, in the language of Sir George Grey (question 1720), "into the mass of general undisposed of land in the Colony " - which is only a comprehen- sive definition of "waste lands of the Crown." And the import- ance of that evidence is that it was material before Parliament in framing its enactments.

IT have looked at various decisions, among which I may men- tion In re Ponsford and Newport District School Board (1), the British Columbia Case (2), and Attorney-General for the Pro- vince of Quebec v. Attorney-General for the Province of Ontario (3); and I feel quite convinced that to satisfy the words "set apart," as used in 1842 and since, no creation of an adverse right is necessary.

Turning now to Governor Phillip's Instructions of 25th April 1787, we find they directed him to reserve to the Crown proper quantities of land for named purposes, not includ- ing any mention of a Government residence. Those that were mentioned were not peculiar to Australia, except so far as they were necessary to a perfectly new country. Most of them find their counterpart in secs. 46 and 54 of the Instructions of 7th December 1763 to Governor Murray of Quebec: Lgerton and Grant, pp: 15 and 16.

Phillip had also, by a clause towards the end of his Additional Instructions of 20th August 1789, directions to "set apart" land for a church (See Historical Records of New South Wales, vol. L, part 2, p. 259). This followed clause 47 of Murray's Instructions of over 25 years before.

There is no doubt that in 1792 Phillip set apart a large tract of land for public purposes generally ; in 1807 Bligh enclosed a portion of this from the rest; and in about 1835 or 1836, or at all events before 1842, the 47 acres now in question were "set

(1) (1894) 1 Ch., 454. * (2) (1906) A.C., 552, at p. 556. (3) (1910) A.C., 627.

sd Witrrams ° ATTORNEY- Gen! L For New Sourn Wates.

apart" in fact as a residence for the Governor of New South Wales, and so they have remained until recently.

{- The first point made by the informant is that the 47 acres were reserved as Imperial property, and are still so; or, even if Colonial in title, were impressed with a trust in favour of the public for an Imperial purpose.

It is a mere truism to say that the title of the King to the lands of the Colony was in right of his Sovereignty of the Colony, in other words in right of the Colony. They were His Majesty's Colonial lands. To transfer land to him in right of the United Kingdom only must depend on some overt act, and the onus of proving this lies on the informant. The setting apart is said to be this overt act. But it is necessary to ask what object the Crown had in view in so setting apart the land. Was it set apart from all other Colonial lands, and as the special property of the Mother Country, attached, so to speak, specifically to the Colonial Office, in the same way as, in the British Colwmbia Case (1), Deadman's Island, as the facts were held to show, was specifically attached to the Home Government, the War Office, for the pur- pose of defending the Empire? The facts there were - that the reserve was for military purposes ; that the history of the country was one of conquest and of special solicitude from a military and naval standpoint ; that an Imperial officer, Colonel Moody R.E, was specially detailed to serve there with a party of Royal Engineers, though he acted also as Commissioner of Lands; that, in selecting the site of a capital, he reported on the necessity of protecting it; that his plans were laid by the Home Government before the Admiralty and the War Office, and approved; that he was in direct communication with the War Office; and that the Colonial Office had to turn to the War Office for a schedule of the reserved lands for transfer; and the Home Government showed they regarded the lands as theirs specially by transferring them. In these circumstances - not merely because the reserve was of a military nature - the Judicial Committee concluded that the object of the original reservation was to secure the land to the Home Government for military operations operated or directed by the Imperial Government.

But, with great deference, it is a great fallacy to say that the local habitation of a Governor, which is as purely incidental to his official presence as is his daily sustenance, is an Imperial pur- pose in the same sense as the site of a naval base or fortification to defend a Colonial capital from foreign foes. On the latter, the safety of the national fleet or the defeat of an enemy may depend; the protection of a military station may involve the honour of the Empire or determine the fate of war.

Even between military posts there is a difference. Had the military reserve been one intended merely to guard against the Indians, there would have been no necessary conclusion that the title of the land was intended to be vested, so to speak, in the War Office. The Judicial Committee treated the question as a pure question of fact dependent on the special circumstances, and so I treat the present one.

(7) How Government House Lands were Set Apart. - I have

_ carefully examined the evidence with a view of ascertaining (a) whether this reservation or setting apart of the 47 acres was in order to appropriate them to the Home Government as such, or merely to allot them as part of the Colonial Domain to the Governor as an official residence ; and (b) whether there was any dedication or trust in favour of the public contemplated.

I have come, unhesitatingly, on both points to a conclusion adverse to the informant. 'The salient features of the documents are all that are necessary to mention.

In 1792 Governor Phillip under special instructions from the Home Government - for no general instructions on this subject appear - reserved by marking on a plan a large tract for " public purposes," specially indicating a portion for the Governor's residence.

In 1807 Governor Bligh issued a proclamation notifying per- sons who had built houses on what he termed "part of the Domain of the Governor's Residence" to remove, adding " the said grounds being wanted for Government purposes." I will only observe that there is so far nothing indicative of what one would have expected to find if the informant's case were correct, namely, a special appropriation to the Home Government ; but,

on the contrary, the expression "Government purposes" would -

In 1811, 7th September, a publie notice was issued stating that Garden Island should be comprised in and considered in future as "part of the Government Domain."

In 1816 Governor Macquarie gave public warning against trespassing by injuring the trees, shrubs, &., on the "Govern- ment Domain," but intimating there was no objection to innocent recreation. There is still no sign of specific appropriation to the Home Government, and no dedication for any purpose. The recreation appears to be permissive only. i

On 25th May 1825 Governor Brisbane wrote to Lord Bathurst on "the very important subject of the Government Domain as it is called in Sydney," and the want of a suitable "Government House and Public Offices." Note the conjunction of the two sets

of buildings. The writer states that "it will be perceived by -

referring to Captain King's chart of Port Jackson that one half of Sydney Cove in which Sydney Harbour is situated has been reserved by Government." He manifestly means reserved from sale. He proceeds to say it affords a pleasing prospect; but that the other half of the Cove is needed for commercial purposes. He then suggests disposing of the whole of the water side of the Domain, and applying the revenue from the sales to erecting suitable residence for the Governor in Sydney, instead of the then present Government House, which was very dilapidated and might be converted into public offices; the suggestion included a proposal to convert the Gothic stables into a Government resi- dence. He adds it would be a great gain to the public and to commerce, and a saving of expense to the Government.

Now, I attach much importance to this document. It betrays no suspicion of any differentiation of title between the site of the then Government House and the rest of the Domain; its sugges- tion to sell parts, and to turn the then existing site of Govern- ment House into public offices, is inconsistent with any notion of dedication for Imperial purposes, or in any way to the public. The transfer to public offices does not appear to be any radical change of title or object - they are both " Government purposes ;"

| 16 CLR] OF AUSTRALIA. 445 oe ee and the final words indicate that the arrangement, including the H. C. or A.

new Government House, will be of great local advantage. ee Rees,

: It is obvious that if the original site of Government House wrrzsans were reserved for "an Imperial purpose" in the distinctive sense dies: contended for, that fact would have been known and referred to Genera by the Governor, and, as it was not, it would be very unlikely heed that the new house would be treated differently from the first. Wats.

On 30th June 1825 Lord Bathurst authorizes the construction _ tsaacs J. of a new Government House, as he deemed it very "essential to the public service that His Majesty's representative in that distant quarter of the world should be accommodated with a convenient and suitable residence." That is the strongest ex- pression I can find in informant's favour, but it is consistent with either view. Lord Bathurst there speaks not of land but of the condition of the building, wherever it may be; he is stating the reason operating in his mind, not for vesting land in the Home Government but entirely alio intuitu, for authorizing expense in buildmg a new house.

On. 8th June 1829 Governor Darling publishes for general information a list of land reserved for "public purposes," and includes this land.

On 2nd November 1832 Governor Bourke reports on the existing Government House, and suggests erecting a new house on a different site and " giving up to the public" a portion then enclosed in Government gardens for quays, &c.

He says : - "I considered in what way a new house might be built with least expense to the public" - language extremely unlikely if he knew that the site had been or was intended to be taken away from the public, and specially vested in the Home authorities.

He says, further, that " the land about 47 acres to be enclosed as the Government Grounds" are, with a small exception, not fertile; and that Grose Farm, containing about 200 acres, should be allotted also for the use of the Governor. So that the genesis of the enclosure of the 47 acres is here found, with no intimation of vesting in the Home Government, and with the mention of Grose Farm in such a connection that, if the 47 acres were intended to be so vested, Grose Farm was similarly intended; and if the public

were to be cestwis que trustent of the 47 actes, they could hardly

escape the same fate with respect to the 200. The Imperial ;

purpose would be poorly served by providing a fine house for the

yovernor and leaving him to starve. But the Governor says of

the farm : - "The expense of labour and implements for the management of this farm should be borne by the Governor; that of supporting the new farm buildings now upon it should be charged to the public" - again, the " public," not as the objects of a public charity but as persons paying for important services rendered locally by His Majesty's representative.

In August 1836 the Committee of the Legislative Council report favourably, and, inter alia, state that £25,000 will be re- quired and may be provided by the sale of Government land, and 20 acres, part of the Inner Domain, may be "dedicated" to the improvement of part of Sydney for streets, &c. "Dedication" there first makes its appearance; and, as to 20 acres other than these, the Chief Justice would scarcely have signed a report in those terms had there already been a dedication of land for any other purpose, or if he had heard of any specifie appropria- tion to the Home Government. The whole proceeding so far is "Colonial," with, of course, the necessity, in the then mode of government, of the Home authorities' approval.

The new house was finished in 1845, just as Governor Gipps was on the point of leaving for England, and in his parting despatch to Lord Stanley there appears no trace of Imperial ownership in the special sense, and no suggestion of a trust for the public excepting that, as is said in Calvert on Parties, p. 26, "according to the principles of our law the interest of the public is vested in the Crown."

(8) How the Lands have been since treated by both Govern- ments. - From that time onwards to 1855 no indication is given that the position is altered as to title or trust. During all that time the property was treated as if it were Colonial property.

In the Appropriation Act 1832 (No. 17), among the ordinary Colonial purposes, appears an item of £500 for the furniture for the reception rooms of Government House, Sydney; in the Appro- priation Act 1834 (No. 5), we find a significant item, " not exceed- ing £600 to defray the expense of furniture for Government

Houses and the several Public Offices." These buildings are thus H. C. or A.

In the Appropriation Act 1835 (No. 5) the language is to my mind practically decisive. Under the general heading for "Miscellaneous Services for 1836" there is an item indicated by the marginal note " £1,500 for repairs to Public Buildings." The item is, "not exceeding £1,500 to defray the expense of casual repairs to Government Houses Courts of Justice and other Colonial Public Buildings." It is to be noted, too, that the Parramatta House was never considered, according to the argument, an Imperial property. Yet it was a Government Domain. See Appropriation Act 1836 (No. 5), in which a sum of £676 Os. 10d. was voted for it. In the same Act appears the vote of £10,000 to defray in part the expense of building a new Government House at Sydney. The item appears under the head of " Miscellaneous Services for 1837," and is included in Colonial purposes, being inserted between a vote for Sydney fire- men and one for accommodation for Botanic Garden workmen. A noticeable item is the last, namely, £600 for the Royal Engi- neer Commanding "whilst employed upon Colonial Services." In the Act of 1837 (No. 4) the same important phraseology occurs as above italicized in the Act of 1835.

In 1838, while the old Government House and the Parramatta House continued, the Appropriation Act of that year (No. 15) provided £500 "to defray the expense of furniture for Govern- ment Houses and Public Offices," drawing no distinction between them, and mingling them with other ordinary public buildings as Courts, lunatic asylums, &. So in 1839 (Act No. 24), 1840 (Act No. 20) and 1841 (Act No.7). In 1842 (Act No. 12) there is under the heading of " Department of Public Works and Buildings " and wedged between the " Colonial Architect's Department" and " New Gaol and Court House Darlinghurst," the item "£2,500 towards defraying the expense of building the new Government House Sydney"; in 1843 (Act No. 20) under " Public Works and Build- ings,' and inserted between "Colonial Architect" and "New Custom House," we find "the further sum of £1,000 towards defraying the expense of building the new Government House Sydney "; in 1844 (Act No. 18), between the " Road over the Blue

~ Wittiams v. ATTORNEY- GENERAL For NEw Sours WaALEs.

WirrraMs v. ATTORNEY- GENERAL For New Sovurn Wates.

Mountains" and " Removing and repairing the Clock and Carters' Barracks," there is "the further sum of £500 towards completing the new Government House, Sydney "; in 1845 (Act No. 24) £450 for erecting a Guard-house at the new Government House, Sydney, - and £250 for providing iron entrance gates to the new Government - House. That was the year when Sir George Gipps was to move in. _ Sueceeding Appropriation Acts provided similarly for sums forthe - enclosures, fences, and ornamental shields of arms down to 1853,

It is history that the Home Government ceased before 1850 to contribute to the expenses of the Colonial Government: See Jenks's History of the Australasiun Colonies, at p. 229, and Earl Grey's Colonial Policy of Lord John Russell's Administration, vol. 1, p. 48. It would be, indeed, a strange notion that the Home Government distrustfully insisted on remaining the owner of the property for the purpose of ensuring a proper home for its Imperial servant, and yet abandoned the cost and responsibility of the matter to the Colonial Government.

That is certainly not characteristic of the British Colonial Office, 'and is not supported by anything the Home authorities ever did or ever said. It is noteworthy that, with reference to the present controversy, the Home Government has not - so far as we have heard - given the least sign of a claim to this pro- perty. If there had been any impression of title in the Colonial Office, one would have expected to have some direct evidence of it; in this regard the absence of such a claim is significant. It is notorious, and the Appropriation Acts of New South Wales show, that the Colonial Government have always maintained the pre- mises as if they were their own: See, for instance, the early Act of 1856-1857 (No. 42), the Supplementary Service ; the Act of 1858, under Establishments of Secretary for Lands and Public Works.

(9) Responsible Government. - In 1855 responsible government was obtained by New South Wales. There had beena protracted and heated struggle between the Home authorities and the colonists as to the grant of full powers of self-government. By successive steps the local powers had widened - first direct Crown rule, and then in 1823 a limited legislature, in 1828 a further advance, in 1842 representative institutions, but a denial of any

right to interfere with the land question, and in 1850 a further H. ©. or A.

a grant, with a denial of the same right. The insistence of the _ public for complete powers, added to the revolutionary change on

the subject of emigration, which took place on the discovery of gold, led to the final concession.

No one can read the despatch of Lord John Russell to Governor Denison of 20th July 1855 (printed by command 24th July 1856, and see New South Wales Parliamentary Handbook, 7th ed., p. 195), transmitting the new Constitution of that year - and more especially the last paragraph of that despatch - without the deepest conviction of the confidence, the unrestricted confidence, which the mother country reposed in the people of her distant possession. Isay this because the suggestion was made throughout the argu- ment that the Home Government took care to hold in its own hands the residence of its Imperial representative, for fear the local authorities should leave him without appropriate shelter.

And it is said that this was so notwithstanding the change to responsible Government.

(10) The Land Sales Act, 5 & 6 Vict. c. 36 - Until 1855 the Home Government held these 47 acres, together with all its other Crown lands, jealously in its own power. This was not by reason of any mistrust, but as a matter of high policy. To briefly eluci- date this, is to clear the way to a proper understanding of the Acts 5 & 6 Vict. c. 36 and 9 & 10 Vict. c. 104, which have been strangely misunderstood. That would be trifling if it did not lead to a misconstruction of the Constitution of 1855.

As a matter of history the land of the Colony down to 1831 was entirely administered by the Governor at his discretion or according to directions received from the Colonial office.

In that year Lord Ripon's regulations introduced the principle of public sale and certain principles of action. At that period, and for some years afterwards, a serious question of public policy was agitated in England and more and more strenuously con- tested in the Colony, namely, how far the Crown should pursue the notion prevalent among Imperial statesmen of the time that the Colonies should be developed, not merely with a view to their own advantage, but also, and largely, with a view to find a home

for the surplus population of the United Kingdom and a market VOL. XVI. 29

for its manufactures. The right of disposal of the public lands was most carefully preserved as an Imperial means of effecting the desired object. In 1836 a Select Committee of the House of Commons investigated the problem of how best to secure this composite purpose. Its report was followed by a principle formu- lated in 1840, namely, that "the Crown lands in the Colonies are held in trust not merely for the existing colonists, but for the people of the British Empire collectively." At the same time it was admitted that public local claims should be the first charge, and emigration projects should come next.

These matters were before Parliament when it undertook the new legislation, and it is apparent that it was for the purpose of definitely laying down these principles that the Act of 5 &6 Vict. c. 36 was passed in 1842. See. 19 appropriates the gross proceeds of the lands less certain expenses to " the public service of the . . . Colonies," provided one-half is applied to emigration from the United Kingdom to the Colony. This Act (see see. 2) was a Parliamentary fetter on the existing absolute power of the Crown. It fixed the policy by prescribing the method of sale and application of proceeds. But it strictly maintained the Home Government's control of the undisposed of lands, termed " waste lands," as against Colonial control.

Parliament defined "waste lands of the Crown," but expressly added "as used in the present Act," and said that by those words so used were intended and described any lands situate therein then or thereafter vested in the Crown, which were not already granted or contracted to be granted, or " dedicated and set apart for some public use."

It is extremely material to bear in mind that the Act was a restriction on the power of the Home Government to dispose of the waste lands and apply the proceeds, but it did not in any manner profess to confer any such power on the Colonial legisla- ture. It was intended as a just and permanent settlement of a much vexed question which received at the time great public prominence. See, for instance, Merivale's Colonization and Colonies, at p. 433, and Earl Grey's Colonial Policy of Lord John Russells Administration, vol. 1, p. 308, letter v1.

The Colony obtained fixed rights with regard to the proceeds,

_ but the exclusiveness of the Home Government's powers of dis- H. ©. or A. posal was maintained. At the same time provisions of mandatory es character were inserted, requiring the Governor to convey and Wyss alienate in fee simple to the purchasers thereof "any waste os

ATTORNEY- lands of the Crown" in the Colony, subject to the prescribed Grnerat regulations (sec. 5). son Nay So sweeping and compulsory a clause needed qualifications; and W™®s- _ such were inserted in sec, 3, which preserved the discretionary Isaacs J.

right of the Crown to except lands for public uses, and in sec.

23, which was not discretionary, but binding, and which gave the

definition of the expression "waste lands of the Crown" as used _ in that Act - so as to prevent, inter alia, any demand being pos- sibly made asa statutory right, by a would-be purchaser, for lands reserved or set apart for public purposes. It is to be remembered that there was no detraction in the Act from the power of the Crown to abandon the public purpose for which any waste lands were set apart - provided always no adverse rights had arisen, A tract of waste forest land marked out on a map, and formally set aside for a future township, or reservoir, or police station, was still waste land of the Crown in fact and in ordinary parlance, but it was reserved waste land. If, however, the reservations were formally revoked, and the purpose abandoned, the land naturally fell back into the general stock of Colonial waste lands. Instances of this have been already mentioned in connection with Mr. Kelsey's evidence in 1836. It was altogether in the discretion of the Crown to reserve, or to cancel a reserve, and thus throw the particular lands into the purchasable mass. There was nothing in the Act 5 & 6 Vict. c. 36, so far as I can see, to prevent the Crown from abandoning its purpose in respect of the 47 acres, and then selling them as ordinary waste lands; though until abandonment no claim could be made to purchase them: See per Wise J. in The Attorney-General v. Eagar (1). Such a right has never been parted with, except under specific provisions in the New South Wales Lands Acts. The prohibition to sell except under the statutory regulations and conditions extended only to waste lands within the definition; but while these lands were set apart they were outside the definition and were also outside the prohibition,

(1) 3S.C.R. (N.S. W.), 234, at p. 268, lines 8 to 11.

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

_ with the sale or appropriation of "the lands belonging to the H.C. or A.

Crown " - not the " waste lands as defined by the existing Acts." sine It will be seen, therefore, how revolutionary a change was Wrasams effected by the Constitution of 1855. a:

aie ATTORNEY- (12) Constitution of 1855 - The long struggle for complete Grnerat

self-government had ended in the Colonial legislature itself ates

framing a new Constitution and providing a civil list, but it | WA™®S was stipulated - as is recited in the preamble of the Imperial tsaacss. Act - that the new Constitution should not come into force until

the Acts of 5 & 6 Vict. c. 36 and 9 & 10 Vict. c. 104 and 13 & 14

Vict. c. 59 and other Acts restricting the Colonial power over the

_ Customs and otherwise affecting the Government of the Colony were repealed, and "the entire management and control of the

waste lands belonging to the Crown in the said Colony a .

and also the appropriation of the gross proceeds of the sales of any such lands,. . . . shall be vested in the legislature of the said Colony."

See. II. did so vest the required powers with certain exceptions. Istop there, for a moment, to observe that there is no syllable in that recital or in see. II. to cut down the inherent meaning of the phrase "the waste lands belonging to the Crown in the Colony." It meant all the waste lands. The suggestion is that the defi- nition contained in the two Acts 5 & 6 Vict. ¢ 36 and 9 & 10 Vict. c. 104 governed the words in the Act of 1855. With very great deference to such eminent men as Sir William Atherton and Sir Roundell Palmer, in their opinion dated 17th January 1862,1 am forced to think otherwise. Their view that the definition did govern the later Act was not necessary to their opinion, and the history of the legislation and the events surrounding it do not seem to have been drawn to their attention, but the Acts were apparently collocated as if the Statutes in the case laid before them were all successive steps in the same process.

On the contrary, the last was a complete reversal of policy ; it was the deliberate and final abandonment of a system of political control with reference to which the Acts had been framed, and it was the adoption of an entirely new line of action, a complete transfer of political power, and all the local control of the subject matter which that political power required. Not only was there

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, -

therefore, was really not land belonging to the Crown: See per H- ©. or A.

Stephen C.J. (1) and Milford J. (2). The proviso to sec. 58 of the Constitution of 1855 operated (2); per Wise J. (3). These were the real and substantial grounds. It was not argued that the lands in controversy were not waste lands within the meaning of the Constitution, except on the ground that they were affected by a trust, and therefore were not really the property of the Crown. This, said the learned Chief Justice (4), was the real question. An obiter dictum of Wise J. (5), as to the meaning of " waste lands" in the Constitution, is not definite. That learned Judge, when Solicitor-General, did not, when giving his opinion in July 1857, think it necessary to refer to that. The reference by Stephen C.J. (6) to the 20th section of the Act 5 & 6 Vict. c. 36 appears to rest on a misapprehension of the purview of that section. It was to enable the Crown, notwithstanding the prohibitive vigour of the enactment, to sell lands on other terms if so promised to settlers or intending settlers previously,

(13) Hifect of New Constitution on Control of Lands. - Now, it is true that the grant of legislative power contained in sec. 1 of the Constitution does not confer proprietorship. If it did, it would make the State the owner of all private property and of all persons in the territory.

But the fact that carries importance is that the King always owned the Colonial land in right of his Colony; that, even when the local legislature regulated public conduct in most things, there were reserved for Imperial control such departments of Colonial government as lands, and, to some extent, Customs, because trade was long considered an Imperial interest too (See Lewis's Government of Dependencies, pp. xliii. (n.) and li, and Merivale's Colonization and Colonies, pp. 192, 198). Merivale, p. 107, refers to "the control exercised by the mother State over the sale of all other waste lands" (that is, other than church reserves), as "perhaps the most important function of government in new countries."

(1) 3 S.C.R. (N.S.W.), 234, at p. 254. 260. (5) 3 S.C.R. (N.S.W.), 234, at p. (2) 8 S.C.R. (N.S.W.), 234, at p. 271, lines 2 et seq. 265. (6) 3 S.C.R, (N.S.W.), 234, at p. (3) 38.C.R. ow W.), 234, at p.271. 259. W.), 234, at p.

The express statutory control of the sale and other disposal of ' the waste lands (sec. 43 of the Constitution) was transferred to - the Colony not as a matter of title - as has been tacitly assumed -

• but as a matter of governmental function. It was given, not - to the King in his Executive capacity, but to the legislature, which doubly evinces that it was not as a matter of title or pro- perty. If, indeed, it were necessary to be considered as a gift of . property, and if, according to Mr. Knoa's arguments, the maxim expressio wnius exclusio alteriustis to apply, then, if he is right also as to the definition of 5 & 6 Vict. c. 36 still continuing, it follows that not a single piece of land set apart for public pur- : poses ever passed to the Colonial Government. The Supreme Court buildings, the post offices, the Treasury buildings, the : gaols, &e., if that argument prevails, would all have remained Imperial property.

(14) Nature of Governor's Office - Pressed with that difficulty, Mr. Know declared he was not bound to contest it, though he declined to admit it, because he relied also on the Imperial nature of the Governor's office. In the end, that is all that can distinguish the matter from any other case of land reservation. Said learned counsel, the land was analogous to a military reserve, and, indeed, the Governor was Captain-General of the forces, and so the reservation for his residence must have been to the exclu- sive use, and therefore as the exclusive property, of the Home authorities. I have already indicated to some extent the distine- tion between a local residence of a Governor and a military reserve, but the differences are numerous and vital. First, let me observe that "though he may be styled commander-in-chief, he is not thereby invested, without a special appointment from the Sovereign, with the command of the regular forces in the Colony:" Todd's Parliamentary Government in the British Colonies, 2nd ed. (1894), p. 41; see also p. 375; and Colonial Regulations, reg. 4 (Colonial Office List 1912, p. 646).

It must be further borne in mind that the Commonwealth now has exclusive military power in Australia.

As to the general nature of a Governor's position: He is, of course, an Imperial officer in the sense that he receives his com- mission direct from the Sovereign. But the Lieutenant-Governor

• though a citizen of the Colony - is in the same position, and the Chief Justice or Senior Judge acting under a dormant com- mission is in no different situation.

Dr. Todd's work contains numerous and scattered references to the position of a constitutional Governor, as, for instance, at pp. 32, 33, 36, 52, 132, 626, 630, 679 and 819. From these, and from common knowledge and experience, it is undoubted that while the Governor is an Imperial officer of exalted rank and the local representative of the Sovereign, not as Viceroy, nor as even generally representing the King, but with authority limited by his commission and instructions and any relevant Act of Parlia- ment (see Musgrave v. Pulido (1) ). He is selected by,and owing a duty to, the Crown; his duty is as constitutional Governor __ of the Colony to which he is accredited. From the moment he

arrives, he is also controlled by those practical constitutional understandings not reducible to written law which go to form responsible government. He is, in fact, a part of the Colonial Government, he is incorporated into its working system as an indispensable, and in theory the chief, element of its mechanism ; and, though he is an Imperial officer, he is an officer whose primary function is to regard himself and to act as the head of the Colonial Government. His principal and daily duty is to follow his Minister's advice in conducting the political life of the community - the exceptions being exceptions only, and con- fined to Imperial interests, the responsibility for which he may transfer to his Principal, or to transparent improprieties, the responsibility for which he may transfer to Parliament or the people. He is an integral part of the Government, not an outside element controlling it.

Consistently with this, if questions of an Imperial nature present themselves, if matters of general Imperial policy or of the interests of other parts of the Empire are involved, he is warranted and may be bound to consult with his Sovereign through Constitutional channels ; and he always is bound to obey his Instructions so far as they are not opposed to the law of the Constitution and of the Colony, which law he is present to assist

H.C. or A, 1913, ee Witiiams v. ATTORNEY- GENERAL For New Sourn Wates.

in carrying into effect. But the overwhelming characteristic of a constitutional Governor's functions is that they are Colonial.

(15) Constitutional Provisions as to the Governor - Those general considerations are verified in respect of New South Wales by reference to the Constitutions of 1855 and 1902. The former expressly made the Governor an organic portion of the legislature, and the executive officer of the Colony. The suggestion that for the protection of Imperial interests the land was required to be retained in the hands of the Home Government lest the Colonial legislature should refuse to provide any residence for him, is answered by the legal necessities of the Constitution itself. No vote, resolution or bill for the appropriation of revenue of any tax or impost, could be passed without a Governor's message (sec. 54); not a penny could be obtained from the Treasury without the Governor's warrant (sec. 55); Parliament could not meet after a general election until summoned by the Governor (sec. 24). No member of either House could sit or vote until he took oath before the Governor or someone appointed by him (sec. 38); and, of course, no law could be passed without the Governor's assent, except the Acts reserved, which always need personal assent of the Sovereign.

The Commonwealth Constitution, 1900, contemplates the Governor as an indispensable representative of his State for certain federal purposes.

The New South Wales Constitution of 1902 repeats the neces- sary functions of the Governor, Thus, though it is true the Governor's office is an Imperial purpose, still more must we recognize the existence, the welfare and the constitutional - government of the State of New South Wales an Imperial purpose. If, however, it be replied that "Imperial" means as distinct from "Colonial," the reply is wasted, because, as shown, the functions of a Governor are more distinctly Colonial than Imperial in that contrasted sense.

His legislative functions are not and cannot be performed in his official residence; his executive functions rarely are; and, unless he is to be understood as not required to visit other por- tions of his Colony, his residence elsewhere must be equally Imperial with his residence in the capital.

The actual understanding of both legislatures, Imperial and Colonial, on the subject of the residence, is to some extent reached by a reference to the Governor's residence which was before the Imperial Parliament when the Act 18 & 19 Vict. c. 54 was passed.

On 17th September 1852 a Select Committee of the Legislative Council of New South Wales made a report in anticipation of the grant of responsible government. That was forwarded in a despatch by Governor-General Fitzroy to Sir John Pakington dated 1st November 1852, presented to the Imperial Parliament, and printed, by command, 14th March 1853. After referring to the Governor-General's new dignity and proposed salary, the report quotes, as applicable to the Colony, some observations by Lord Elgin relative to Canada, and this passage occurs : - " If the Governor-General adheres faithfully to the principles of con- stitutional government in the direction of public affairs, it becomes all the more necessary that his residence should be open to leading persons of different parties, and that he should be able by visiting different parts of the province, and taking a lead in works of public utility and benevolence which are not of a party character, to manifest personal sympathy with all sections of the community."

It would be hard to indicate more effectually the view that his place of residence was closely bound up with Colonial interests and considerations. The salary fixed by the Colonial legislature on the basis declared in the report was accepted by the Imperial Parliament, and appears in the schedule to the Constitution.

(16) Effect of Responsible Government. - The truth, then, is that when responsible government was introduced a vital change was made.

Lord Chancellor (then Mr.) Haldane, in his speech in May 1900, in the House of Commons, on the Commonwealth Constitu- tion Bill, said: - " This Bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire - I mean the institution of responsible government, a government under which the Executive is directly responsible to - nay, is almost the creature of - the legislature." Now, when New

South Wales in 1855 received this "the greatest institution" in the Empire, and with it the full control of the waste lands and the full control of her Customs, which she had not before (see 7 &8 Vict. c. 72), and, as part of all this, the uncontrolled manage- ment of all land occupied by her public buildings, it would be marvellous indeed if there were refused to her the control of these 47 acres. Clearly that passed, not as specifically given over to the control of the legislature, but as part of the governmental means and property taken over by the self-governing com- munity.

And if it were to be assumed that the original nature of the Governor's office meant Imperial control of the land, the transi- tion to constitutional government, by parity of reason, meant Colonial control.

One word as to the Order in Council of 26th October 1899. This was apparently a clearing up of lands held for Imperial purposes. The lands in the first schedule had been granted to ordnance officers under 4 Vict. No. 2.

The second schedule lands are stated to have been "reserved as appropriated or used for military and naval purposes but never granted for ordnance purposes."

Reading that statement with the recital of 40 & 41 Vict. ¢. 23, it appears that they were held in trust for the defence of the Colony within the meaning of that Act and that they were held by the Imperial authorities. That implies that the original reser- vation had, in fact, been practically to the Sovereign in his Imperial capacity ; and that is a question of fact dependent, as in the British Columbia Case (1), on the circumstances. What these circumstances were we are not aware, and so the instance does not help, especially as to a reserve for civil purposes.

The third schedule: Garden Island was dedicated by the New South Wales Government under its own Land Act 1861.

In any event the agreement and its resulting conveyance go no further than the lands actually concerned, and I not think they help to any conclusion in this case.

I am of opinion the appeal should be allowed, and the action" dismissed with costs.

Hicers J. The terms of the decree, which is the subject of appeal, have been already stated by the Acting Chief Justice.

One of the grounds of appeal is that the property was not dedicated as declared in the decree ; but I understand that in the Court below, as in this Court, the main argument has been on the other problems of the case. At all events, the dedication has been treated as clear ; and the inference has been drawn that, if dedi- cated, the land was not " waste land" over which the Parliament of New South Wales was given control under the Constitution (18 & 19 Vict. c. 54, sec. IL.; 17 Vict. No. 41 (N.S.W,) ).

According to the case of the Attorney-General v. Eagar (1), and the opinions of the British Law Officers appended thereto, the meaning of the words " waste lands belonging to the Crown" used in sec. II. of the British enabling Act, is to be found in the definition contained in sec. 23 of the Act 5 & 6 Vict. c. 36; or, it may be, in that definition taken with the detinition contained in sec. 9 of the amending Act 9 & 10 Vict. c. 104. There is some ground for the opinion that the true meaning of the words is broader than the definitions contained in these Acts; but, so far as the decision of this case is concerned, the narrower meaning may be admitted.

The Act 5 & 6 Vict. c. 36, sec. 23, provides that the waste lands of the Crown shall be disposed of by sale only, and in the manner prescribed ; but the rights of Her Majesty are saved to except from sale and either to reserve or dispose of the lands for roads and certain other public purposes; and, by sec. 23 the words "waste lands of the Crown," as employed in the Act, mean any land situated in New South Wales and vested in the Queen, " and which have not been already granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years, and which have not been dedi~ cated and set wpart for some public use." By the amending Act (9 & 10 Vict. c. 104), power was given to grant lands for 14 years, or licences to occupy ; and, by sec. 9, it was provided that " the words ' waste lands of the Crown,' as employed in this Act" (the amending Act), "are intended to describe any lands in the said Colonies whether within or without the limits allotted to settlers

H.C. or A. forlocation,and which . . . are . . , vested in Her Majesty, Res . . and which have not been already granted or lawfully eee cumernied to be granted by Her Majesty, . . . to any person _ or persons in fee simple, and which have not been dedicated or

set apart for some public use." For some reason the word "or

appa is substituted for "and" in the second definition ; but in all other

Watrs. - yespects, and for the purposes only of the amending Act, the aim

Higgins J. seems to be to enlarge rather than to narrow the class of waste lands. But the principal Act, with its definition of " waste lands," still remains. One may conjecture that the draftsman of the amending Act felt a difficulty in applying the word " dedication" to the appropriation of lands for purposes other than the purpose of highways ; that he meant the words "set apart" to refer to the appropriation of lands for recreation or for hospitals or for pub- lie purposes other than the purpose of highways. But, whatever may have been the motive for the change of language, there isno doubt, to my mind, that both expressions, "dedicate" and "set apart " - " for some public use " - connote the giving to the publie of some rights in the land which subtract from the Crown's full ownership ; the appropriation of the land for some definite public purpose, not for public purposes generally ; and for some estate or interest better than at mere will. Probably - though this is not so certain - the appropriation of the land for the public use must also be permanent. In the case of highways there can be no dedication unless permanent (Corsellis v. London County Couneil (1)); and the words "set apart" should take their colour and force from the context. Lands granted in fee are excepted from " waste lands" which the Crown may sell or lease ; lands contracted to be granted are excepted ; and lands dedicated and/or set apart for some public use are excepted. The object clearly is to pre- serve existing rights against the Crown; and there is no such existing right to be preserved unless the Crown has bound itself in some way to keep the land for some public use. If the Crown has built a house for one of its servants, there is nothing to pre- vent it from changing its intention at any moment, and letting in another servant, or pulling down the house. The servant has no right to the house as against the Crown; and what is more to the

purpose - the public have no right that can be recognized in a Court of law against the Crown.

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,

Governor Phillip, as set out in a book of historical records of New South Wales. Governor Phillip certainly seems to have had no power to dedicate, or even (with a few immaterial exceptions) to grant lands without valuable consideration ; and unless further powers were granted to subsequent Governors, they had no power either. A Governor is a special, not a general, agent (Musgrave v. Pulido (1)); and the Governor of New South Wales had no such "autocratic power" with regard to Crown land as the Governor of British Columbia had (see Attorney-General of British Columbia v. Attorney-General of Canada (2)). But the solid ground on which to rest the decision of this case is, to my mind, this - that the royal will, so far as it is indicated by the facts before us, was, as to this land as yet kept back from sale, not to give the land at all, to the public any more than to private persons, but to retain it for the use of the royal servants, the Governors; and the fact that the Governors are to be treated as useful to the public of the Colony should not blind us to the essential fact that their position is that of special deputies of the King. The transaction of building and enclosing this residence was approved by the Queen, not animo donandi but animo retinendi, By the very next mail the Queen could have directed that the residence should be used for an admiral or for an asylum.

If this view is right, this land was " waste land belonging to the Crown" within the meaning of the Constitution ; and, under the Constitution, it became subject to the power of the legislature of two houses thereby created. We have not been referred to any provision in the numerous and complicated Acts of New South Wales relating to Crown land that is in the nature of a dedication of this area of 47 acres, or that alters the rights of the King with respect thereto; and it has not been made clear where the power over this land really rests pending legislation of the New South Wales Parliament. By the Act 18 & 19 Vict. c. 54, sec. IL, "the entire management and control of the waste lands belonging to the Crown in the said Colony and also the appropriation of the gross proceeds of the sales of any such lands and of all other proceeds and revenues of the same from whatever source " are vested in the legislature of the Colony (and see sec. 43

(1) 5 App. Cas., 102. (2) (1906) A.C., 552, at pp. 554, 555.

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.

In this view of the merits of the case, it becomes unnecessary to speak more at length as to the unusual framework of this _ information. We have been relieved of some difficult questions by the appellant's admission that the Government - including the

_ Governor - intended to open the grounds to the public. But, so oe VOL. XVI. 30

WitriaMs ° ATTORNEY- GENERAL ror New Sour Wags.

far as I am personally concerned, I desire not to be taken as accepting the position that the Attorney-General for New South Wales, who is a member of the Ministry for New South Wales, can succeed in an information against the Government for an actual or threatened trespass to which, in the absence of evidence to the contrary, he must be taken to have been a consenting party: See Burt v. British Nation Life Assurance Association (1). Moreover, the Government of New South Wales is not a corporation; and if the name of the nominal defendant is to be treated as a short expression for the names of the Governor and the councillors who advise him, we find Mr. Holman, in his capacity of adviser of the Governor, suing himself in his capacity of adviser of the Governor. If the injunction granted should be disobeyed by the Government, Mr. Holman may be found in the position of moving for an attachment against himself. It is not a question of the King in one capacity suing the King in another capacity ; it is a question of the Attorney-General suing himself. But I am glad that the case is to be decided on its merits ; and, on the merits, I concur in the view that the appeal should be

The judgment of Gavan Durry and Ricu JJ. was read by

Gavan Durry J. The informant's claim in this case is based on the hypothesis that there has been a dedication or setting apart of land by the Sovereign so as to constitute something in the nature of a trust for the benefit of the public of New South Wales, and that the right so created can be enforced, and any interference with its exercise can be prevented, by the Attorney-General of New South Wales suing on behalf of the public of New South Wales.

The Supreme Court of New South Wales were of opinion that this claim was well founded. The decree appealed against declares that the land in question is vested in the King dedicated to the public purpose of a residence for His Majesty's representative in New South Wales, and that the action or concurrence of the Imperial Government is necessary to divert it from such purpose ;

it also enjoins the Government of New South Wales, its officers and servants from any interference with that purpose.

On a consideration of the evidence we find no ground for say- ing that there is any such right in the public of New South Wales. It is true that the land was reserved, and has long been used, as a residence and domain for the Governor of New South Wales; but the reservation was not intended to confer on the public of New South Wales any rights as against the Sovereign. Its intention and its effect were to retain the land for the purpose of the King's Government in the Colony. It created no right which could be enforced in a Court of law by any individual or set of individuals, or by the public of New South Wales; the Sovereign still retained complete and undivided ownership and dominion, and he alone could complain of any interference with the land or with the method of dealing with it. The reservation gave to the public no more than it would have given had the land been reserved and used for a post office, a Court of Justice, or a Custom house. Such purposes are commonly called public purposes, but the public has no right with respect to them which can be enforced in a Court of law, apart from the proprietary right which the Sovereign can enforce and defend.

This is enough to dispose of the case, for, if the public has no right which can be asserted in a Court of law, it is unnecessary to inquire whether the Government of New South Wales has inter- fered with the rights of the Imperial Government. Were it necessary to decide the question, we should be disposed to hold with our brother Isaacs, whose judgment we have had the advan- tage of reading, that the Imperial Government is no longer con- cerned with the land, and that the Government of New South Wales is within its legal rights in all that it has done or threatened to do.

Powers J. I cannot add, nor do I think it necessary to add, any further reason why the appeal should be allowed on the merits. Ido not propose to repeat any of the reasons already given. I concur in the opinions expressed by all my colleagues, that the appeal should be allowed.

468 HIGH COURT H.C. or A. Appeal allowed. Order appealed from dis- 1918: charged. Suit dismissed with costs. mee Respondent to pay the costs of the Arronxty- appeals GENERAL 5S ror New Solicitor, for the appellant, J. V. Yillett, Crown Solicitor for | New South Wales. Solicitors, for the respondent, Cope & Co. B.L. Wael gee ae 7" [HIGH COURT OF AUSTRALIA.1 MAYBURY AND ANOTHER . APPELLANTS ; DEFENDANTS, AND PLOWMAN . RESPONDENT.

H.C. or A. Assault and false imprisonment - Arrest - General power to apprehend person found committing offence - Special power to apprehend for offence in respect of inclosed land - Construction of consolidating Statute - Criminal Law Amendment Act

Barton A.C.J., Teaacs, Gavan Duffy, Powers and Rich JJ.

' W.) (46 Vict. No. 17), sec. 429 - Crimes Act 1900 (N.S. W.) (No. 40 of

1900), sec. 352 - Inclosed Lands Protection Act 1854 (N.S.W.) (18 Viet. No.

27), secs. 1, 3 - Lnclosed Lands Protection Act 1901 (NV. secs. 4, 6.

Sec, 352 (1) of the Crimes Act 1900 (N.S.W.) provides that: 'Any con-

stable'or other person may without warrant apprehend,

act of committing, or immediately after having committed, an offence punish-

able, whether by indictment, or on summary conviction,

Held, that see, 352 (1) (a) of the Crimes Act 1900 applies to offences created by, and punishable under, other Statutes as well as to offences created by, and