New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCATrans 229 (5 October 2016)

Last Updated: 5 October 2016

[2016] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S168 of 2016

B e t w e e n -

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Appellant

and

MINISTER ADMINISTERING THE CROWN LANDS ACT

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 OCTOBER 2016, AT 10.17 AM

(Continued from 4/10/16)

Copyright in the High Court of Australia

FRENCH CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, in the outline – I hope this is not deceptively optimistic – I am up to 3(b). In particular, I am up to the last illustrative proposition in that that might be called the constitutional point. It is, without quoting from it, to remind your Honours of the way in which the 1855 provisions were seen in the description of Justice Gummow, to be found in Wik 187 CLR, pages 173 to 174. Of course, his Honour was speaking of the Queensland equivalent which is verbatim the same, and as is shown in the succeeding pages, his Honour is dealing with matters of social and political history in which those laws of New South Wales in 1855 played a part, and were indeed both cause and effect. Importantly, the way his Honour puts it is that:

The result [of such provisions] was to withdraw from the Crown, whether represented by the Imperial authorities or by the Executive Government of Queensland –

for which, in our case, read New South Wales:

significant elements of the prerogative.

His Honour then goes on in a passage I will not read extensively to refer, as I did yesterday, to the antecedent; partially, at the beginning of the 18th century for the United Kingdom itself, this was not an oddity – that is, not a radical result for which we contend – the effect of the 1855 provision.

Now, that leads to the need obviously to respond to the Chief Justice’s question raised at the end of proceedings yesterday and I do so, I stress not by any work of original analysis on our part. I am largely drawing on the description which is to be found in Acting Chief Justice Barton’s reasons in Williams.

FRENCH CJ: This is not something which is covered by the proviso?

MR WALKER: No. It is covered by what I will call the savings provision. It is not accurately, I think, entirely described as “grandfathering” because what it did – and here I am paraphrasing; I do not want to read it, but the passage that I am referring to really picks up in his Honour’s historical disquisition at 16 CLR 424 and the passage goes right over to, I suppose, 428.

In essence, it is to be recalled that there were two Imperial Acts of 1842 and 1846 respectively dealing with the alienation in the first and the – I will call it occupation - leases and licences second of wastelands in the Australian colonies. They had the effect of regulating the mode of what had formerly been executive conduct. They did not have the effect of placing within what I will call local political control any of the aspects of that matter at all. There could be local use of funds but only by imperial fiat and that can be seen from the description by Sir Edmund Barton at pages 423 and 424 of Williams.

The 1855 suite of legislation constituted, among others, the Imperial Act authorising assent to the Colonial Act, which might be called the Constitution, but it also included a repeal Act. Your Honours will find that in the bundle of authorities. In New South Wales’ list it is 18 & 19 Vict c 56. It is an Act to repeal the 1842 and 1846 Acts.

Your Honours will recall that the 1855 Constitution was enacted so as not to take effect until the repeal of those Acts. You will see that in section LVIII, in particular, of the Colonial Bill annexed to the Imperial Constitution Act. Section I of that repeal Act of 1855 repeals the 1842 and 1846 Acts and, in section IV, gives legislative power, relevantly, to the newly constituted New South Wales Parliament to:

repeal, alter, or amend any Order in Council made under Authority of the said Act -

So, there were Orders in Council made under and for the purposes of the 1842 and 1846 Acts and they were having an afterlife following repeal of the statutes pursuant to which they were made and they could be repealed, altered or amended by the colonial legislature and in 1861 that was eventually complete and we have handed up to your Honours from the New South Wales legislature of 1861, Acts 1 and 2. They are again respectively regulating the alienation of Crown lands and regulating the occupation of Crown lands reflecting to a degree the pair of 1842 and 1846 imperial enactments and the pattern - - -

GORDON J: Was that as a result, though, of section 43 of the 1855 Constitution Act which gave express power to the legislature to make laws in relation to those matters?

MR WALKER: Yes, indeed, your Honour. It is also pursuant to the imperial grant in section 4 of the 1855 repeal Act to which I have drawn attention and it is also, one would think, within the general grant of legislative power. There are two specific heads that could be called in aid plus a general head. The effect of the 1861 statutes is to, if your Honours will forgive me, render the witching hour 22 February 1858 - that was the period up to which engagements pursuant to the Orders in Council and leases, et cetera, would operate. Various provisions deal with that date, it is not of significance.

What is of significance is the transitional period where the Orders in Council had regulated alienation and occupation was brought to an end by section 2 of these 1861 Acts and so in answer to the Chief Justice’s question, what happened after 1855 came into effect upon repeal of those imperial statutes of 1842 and 1846, the Orders in Council under those repeal Acts continued to regulate the matters at hand until they themselves were repealed, effectively in 1861 by section 2 of that pair of Acts.

Thereafter, pursuant to the – I will call it section 2 vesting, but also pursuant to the legislative powers both generally and specifically granted by section 3 of that pair of 1861 Acts, there was the stipulation that thereafter the dealings – see section 3 of the Alienation Act:

Any Crown lands may lawfully be granted . . . or dedicated . . . subject to the provisions of this Act but not otherwise -

and thereafter a regulation of that exercise. Then section 2 of the Occupation Act repeals the Orders in Council with a grandfather clause and thereafter there are regulations recognising what I called old runs and runs by reference to the critical date in relation to grant of lease, and thereafter the colonial legislature exercised the powers – in particular your Honours are aware of the succession of what I will call Crown Lands Acts, an expression used in the Crown Lands Act itself.

I may not have made it sufficiently clear in an answer yesterday in relation to the reference to the Crown Lands Consolidation Act 1913, in section 36 of the Aboriginal Land Rights Act – I think I may have mentioned this, but that is a reference which by clause 21 of Schedule 8 of the Crown Lands Act is to be read as a reference to, among other things, the Crown Lands Act. So that section 36 of the Aboriginal Land Rights Act continues to pick up dedications under the current form of the Crown Lands Act as well as all previous dedications.

FRENCH CJ: On the question of dedications – you may have said this yesterday – you adopt the characterisation that Justice Isaacs attached to dedication in the Garden Island Case. That is conferring a statutory status which limits the purpose for which it can be used.

MR WALKER: I do. His Honour at page 92 of 38 CLR used another expression which is evocative; “a statutory disposition”, a dedication as a statutory disposition. We, of course, rely on the majority in that case; Sir Isaac was dissenting in the result - - -

FRENCH CJ: Yes.

MR WALKER: - - - but we would rely on the dictum to the same effect of the majority that I quoted to your Honours at page 84 of 38 CLR. I am not going to add substantively to what I stumbled through yesterday in answer to Justice Gageler’s question. I hope I am going to be a bit crisper, and I will certainly cite a number of statutory provisions, but they all boil down to this. Nowhere will you find, except in the case law to which I have just referred, a statutory stipulation in terms of what I will call an original dedication entails by way of what may or may not be done with the land.

It is for those reasons that we respectfully suggest that the word “dedicate” is what some linguistic philosophers would call a factitive verb. It does what it says it does. It is, as it were, self-accomplishing. By saying this land is dedicated, something is done to it which withdraws it from any other lawful purpose. That, of course, is wholly consistent with the common law usage of the expression “dedicate”, whereby, of course, once land, for example, is dedicated as a highway, the law, including the law of public nuisance, prevents it from being used for any other purpose.

The statutory use of “dedication”, which has been found in what I will call public lands statutes from before the Colony, and certainly before self-government and certainly thereafter, involves on any view the unlawfulness of the use of the land for any other purpose; thus, the need for revocation and thus the nowadays automatic statutory revocation upon sale, where sale is effected pursuant to, among other things, the Crown Lands Act.

Now, there is more to be said by reference to Part 5 of the Crown Lands Act, to which I turned yesterday, to make good that proposition about the meaning of “dedicate” being a restriction as to the purpose to which the land in question can be put or used. To remind your Honours, by way of preamble, the Crown Lands Act in fact deals with more than Crown lands. It deals with land which is not within the definition of “Crown lands” - see section 3(1). That is a definition which, as I think everyone has pointed out, excludes dedicated land. Dedicated land is land which, upon revocation of dedication, reverts to being Crown land - section 84 in Part 5.

The objects of the Crown Lands Act extend beyond Crown land strictly described because object (e) is making provision for the “management and use of . . . dedicated land” which is not Crown land but may become so by ministerial fiat subject to disallowance in one of the houses. Subsection 12(1), as pointed out yesterday, gives the relevant Minister responsibility for the objects.

I should have drawn attention yesterday, but did not, to subsection 18(1), not apropos this point concerning dedication but apropos relation between ministers. You will see there is an express power to make what are called agency arrangements with respect to Crown land. There is a further reference to which I am going to come in relation to inter-ministerial arrangements.

Then in Part 5 itself, section 78, I need to remind your Honours, defines “reserve” so as to include not just reserved lands but also dedicated lands, and the definition in the extended version you see in section 78 requires reference off that I do not need to make to section 37M of the Crown Lands Consolidation Act 1913, which had a similar definition – that is, it included dedicated land.

I have already noted that the relation of dedicated land to Crown land is that, as it were, every dedicated land may become upon revocation Crown land – section 84. In section 87 the general power of reservation evokes a contrast with section 36 of the Aboriginal Land Rights Act. You will see that the Crown Lands Minister’s reservation of:

Crown land from sale, lease or licence –

also includes:

or for future public requirements or other public purpose.

And so the priorities or policy of section 36 obviously places the restoration, so to speak, of indigenous ownership above future public requirements or other public purpose, as that expressed and is used in subsection 87(1) of the Crown Lands Act. Why is that? Because reserved land, of course, is available as claimable Crown land under section 36. Notwithstanding it has been reserved, say, for future public requirements, it remains claimable. So the priority is given to the indigenous land rights.

Sections 103 and 104 can be briefly passed over. Where there is a reserve trust – and there need not be and there was not in this case – there is a power of sale in section 104, frees upon sale, with ministerial consent only, where there is a sale the dedication is revoked. One sees that in subsection 104(2). There can be other uses of reserved and dedicated land and this is part of the answer to Justice Gageler’s question: where is the beef?

There can be other uses of reserved and dedicated land, and this is part of the answer to Justice Gageler’s question: where is the beef? One sees in section 108 that specific provision is necessary for the grant of temporary licences for grazing or any other prescribed purpose where there is a reserve trust. One sees in particular, answering the description that I gave yesterday, in response to which Justice Gageler asked the question, the provisions of Division 6. This is the strict regime to which I was referring.

Leaving aside those aspects I have already noted, that revocation requires a ministerial decision and parliamentary participation by the possibility of disallowance, under Division 6 there are very detailed provisions involving ministerial participation where there is a reserve trust, reserve trust participation and public participation in what are called plans of management. They are not, so far as we read these provisions, mandatory in the case of all dedicated land. But it does appear that they are mandatory if the dedication is to be altered in a particular fashion, which is very informative of the meaning of “dedicated”.

One starts with the definition – section 112A. There are two concepts at play in the whole of this Division: additional purpose and declared purpose. A declared purpose might be called the original purpose, the dedication which named the public purpose for which the land was dedicated. A declared purpose:

means the public purpose for which the land has been dedicated or reserved under this Part, and includes any purpose or use permitted under, or in connection with, the declared purpose.

So there is a concept already, just for the original purpose, of that which is permitted. Every time there is a concept of that which is permitted there has to be, in order for that to have any meaning, the counter-concept of that which is not permitted, that which is outside the category of what is permitted.

An additional purpose then is something that may be added – that is, added as something which is permitted – by the process that starts with section 112. The phrase which is used in subsection (1) and is then repeated throughout the succeeding subsections and sections is this idea of a purpose, “a draft plan that would, if adopted, authorise the reserve to be used for an additional purpose”. Again, the notion of authorising involving, necessarily, the concept of a limit to the authority – that is, outside the authority a purpose will not be authorised.

GAGELER J: But connoting also I take it that the dedicated purpose is a purpose which the Executive is permitted to pursue by virtue of the statutory dedication.

MR WALKER: Of the dedication, yes.

GAGELER J: So a positive grant of authority.

MR WALKER: A positive grant of authority which has, correlatively and unremarkably, a limit and thus a prohibition on anything outside that purpose. If it is dedicated for gaol purposes it may not, while that remains the case, be used as barracks – not until we get penal regiments, that is. It is a positive grant, of course, and at that point, by reason of it being land subject to dedication, subject to matters that do not matter at all concerning both the funding and other regulation of activities, as to land use, nothing more is needed.

In the definition of declared purpose, the inclusion of “any purpose or use permitted under, or in connection with, the declared purpose”, we respectfully submit, would include that which goes without saying; that is, those things which are necessary and are incidental in that sense. I raise that because obviously - I think it was Justice Bell yesterday asked about, in what I call the carryover period - after it could no longer be used as a gaol, that is, its only dedicated purpose, because the proclamation permitting that had ceased to operate. May it be said that there is a purpose or use of what I will call mothballing, looking after; it comes with the declared purpose and, we submit, no, not at all.

There is a Crown Lands Minister, who is perfectly able to do that and has an obligation, as I am about to come to, in relation to adding additional purposes to a dedication, to consult with other ministers. Section 112(5), (6) and (7) repeat that notion of draft plan which, if adopted, would:

authorise the [land] to be used for an additional purpose.

So, it is quite plain that both dedication and the adding of another purpose provides a limit to that which may lawfully be done. Then in subsection (8) one sees this concept that is evocative for this gaol, namely:

a reserve –

that means dedicated lands:

that is being used or occupied by -

I draw to attention that collection of words:

or is being administered by –

so administration does not equate to use or occupation. No doubt a government agency may use “occupy and administer land” all at the same time but the words of the statute contemplate that use and occupation may be separate from administration.

A government agency is defined in section 3 so as to include a department such as Corrective Services. So, “the Minister”, that means the Lands Minister, “may not cause” or “a draft plan” et cetera “unless the Minister has consulted with the Minister to whom that agency is responsible”, in this case, Corrective Services justice.

So that one can see there that the deciding hand is that of the Lands Minister, the role of a not so mandatory consultation is the agency Minister. I call it, not so mandatory because of the specific provision one finds in subsection (9) where the obligation in subsection (8) is immediately dispensed with as a condition of validity. Now, that is a pattern which one then sees repeated in section 113, section 114. See, for example, the phrase in the provision for:

Adoption of plan of management –

In subsection (1A) referring to:

a plan . . . that authorises a reserve to be used for an additional purpose –

If one goes in section 114 to paragraph (2)(b), one sees that upon adoption of a plan of management:

no operations may be undertaken on or in relation to the reserve unless they are in accordance with the plan.

So the plan is one that would authorise an additional purpose. No operations can be undertaken unless they are in accordance with the plan, so going outside the additional purpose authorised will be contrary to paragraph 114(2)(b). Subsection (3) then is the positive grant of authority to use for the additional purpose, again showing that in the absence of the additional purpose going through this mill of process for adoption of a plan of management, the reserve may not be used for that additional purpose, all of which of course bolsters the notion that the original dedication restricts as to use and if the use is to be changed or expanded, that is by way of adding an additional purpose, that goes through this strict regime and there is no executive power to sidestep what Parliament has required by way of process. There is no residual or parallel unregulated executive power to use dedicated land otherwise than in accordance with the dedication.

GAGELER J: Mr Walker, I understand no part of your case is to say what is happening on the land is outside the scope of the existing dedication. Am I wrong in that?

MR WALKER: Looking after the land is, in our submission, conduct that is authorised by an implication of reasonable necessity, notwithstanding the revocation of the proclamation permitting it to be used as a gaol and that is because whether it is visits by a security guard or round the clock shifts by a security guard onsite or offsite, or both, that, in our submission, goes without saying as something that the Crown Lands Minister can do by way of the responsibility imposed with respect to Crown land on that Minister. I do not want to repeat anything I said yesterday. That of course leaves a separate question as to whether that state of affairs constitutes lawful use and occupation within the meaning of paragraph 36(1)(b).

GAGELER J: That is your proposition 1, I think.

MR WALKER: Yes.

GAGELER J: But with proposition 3, if you accept that the dedication is a positive grant of authority and if you accept that what is being done on the land falls within the scope of the dedication, what is left of this point?

MR WALKER: There is this. It does not fall within the scope of the dedication, or the prison’s authorities – the corrective services – to be looking after the land, or through them the power of the Crown Lands Minister to make arrangements for that to be done.

GAGELER J: That is your proposition 2?

MR WALKER: Yes.

GAGELER J: I am asking about proposition 3.

MR WALKER: Proposition 3 is that there has to be statutory authority. Proposition 3 has as its - - -

GAGELER J: I am sorry; you are accepting that the dedication is a positive grant of statutory authority, as I understand it?

MR WALKER: Yes, but not to do what is being done now, if that be use and occupation contrary to my first argument. The three arguments are separate, and it can almost be awkward – not to say embarrassing – to argue as your third point something which involves the demise of your first point. If we win on the first point, we do not need to come to the question of the need for statutory authority.

The need for statutory authority is what brought up the 1855 Constitution, and it does involve the proposition that if we are wrong on our first point and if this be lawful use and occupation, then we say since 1855 at least, anyone, including an agent of the Crown – perhaps especially an agent of the Crown – must point to a statute that authorises the occupation. Indeed, in the 1861 Act, the first of the domestic Acts to exercise that 1855 power, there is a provision which specifically provides for the ejectment of trespassers; those who are unlawfully occupying. That actual expression is used in – I think it is section 32 of that 1861 Occupation Act.

So, we say, if we get to the third point, having failed on 1 and 2, we say the Crown cannot as a matter of law discharge its onus if it relies upon use, or in this case occupation, being lawful, that is, the occupation constituted by items (a) to (i) where item (a) surely dominates and gives the flavour, without which combination could not achieve occupation. You must look for a statute that does that. You cannot look for a statute that talks about the conduct of the prison, because they are not conducting a prison on the land.

KEANE J: But are you not assuming that occupation has to be purposive?

MR WALKER: Yes. I am not so much assuming as arguing that the word is a word that necessarily – the collocation is “lawfully used or occupied”. It necessarily involves a consideration of what the law provides with respect to the land, and I think in every case that can be imagined – particularly in relation to dedication by necessity – that involves being grounded in a public purpose of necessity, so that one cannot use or occupy dedicated land otherwise than in accordance with the dedication. In this case, one could not do that because of the prohibition on being used a prison. It was not being used for gaol purposes.

Now, that is not breaching the dedication because the dedication does not require a gaol to be conducted. It permits no other and it positively authorises it to be used for gaol purposes.

KIEFEL J: But the phrase in paragraph (b) of section 36(1) is “not lawfully used or occupied”. Why could that not be taken to refer to a use or occupation which is not lawful, that is, unlawful, prohibited, and that that is really the narrower concept of what is involved here rather than looking to see if, on a broader view, there is some coincidence or that the use or occupation accords with a power or authority given with respect to land?

MR WALKER: Our argument is that those are not actually two different ways of looking at the matter.

KIEFEL J: They could be.

MR WALKER: I am suggesting that the word “lawfully” only has one meaning and I am arguing that use or occupation contrary to the limited use to which the land may be put is by definition unlawful.

NETTLE J: But you do not say it is unlawful for the Crown Lands Minister to occupy the land for the purposes of mothballing it?

MR WALKER: That is right.

NETTLE J: If that is so, then why is not Justice Kiefel correct, as it were, in saying it would be lawfully occupied in those circumstances?

MR WALKER: That activity would be lawful. That would not be a use or occupation for the reasons in relation to use that this Court explained in Wagga Wagga.

NETTLE J: I wonder if that is right. In Daruk, which was referred to in Wagga Wagga, it was said that it was enough for the trustee of the reserve to occupy the land to enforce its security and to attend to its maintenance.

MR WALKER: Yes. In our submission, however, that will mean – and I fear I am repeating myself from yesterday – that by dint of that which is to be expected of a responsible Crown lands administration – namely, looking after property that might be vandalised – upon its ceasing to be used for its dedicated purpose and while pondering whether or not and, if so, what further public use there may be, that would be by definition land unavailable for claim, whereas, in our submission, a paradigm case to be seen from the scheme of the Aboriginal Land Rights Act and in section 36 is that, unless it be needed for something of the particular kind – residential (b1), essential public purpose (c) – unless it be in that category, then notwithstanding it is reserved or dedicated, it is claimable unless - - -

FRENCH CJ: Falls below the threshold of occupation or occupied, as you would construe it.

MR WALKER: The threshold is more than the holding which is the premise of the application of 36 in any event. Section 36 is premised expressly and obviously inherently on the Crown Lands Minister being the steward of this land. If that premise were sufficient to prevent the land from being claimable, the scheme is a mockery because the occupation could simply be effected, as I say, by deciding that the patrol cars might call, a car will drive up and stay there on the site 24 hours a day with however many shifts that requires and thus, by dint of something which is in industrial terms a triviality – that is, it would be a question of operational judgment as to whether it needs constant on-site attendance, frequent on-site attendance or fleeting on-site attendance, maybe depending on the time of the year, et cetera, et cetera - the land would, on that argument, be occupied or not.

In our submission, the purpose, in further answer to Justice Keane, which is an express core concept of dedication, the purpose of the use or occupation to which the authorities are restricted by reason of the dedication informs the notion of use or occupation as found in 36(1)(b). In the case of dedicated land, it requires that the use or occupation be in accordance with the dedication and our point simply is that if we get to this point, what the Crown relies upon are actions by agents of the Crown, contractors ultimately, that are not conducting a gaol on the land and are doing simply that which constitutes the holding of the land by the Crown Lands Minister looking after it while considering what to do.

That, in our submission, certainly opens up, as Justice Nettle has invited me to consider, the question whether the necessarily implied power of looking after vulnerable land which could be done in many different ways – fire control, pest control, anti-vandalism and the like – it could be done, as we know, mechanically, remotely or by physical presence either from time to time or, in rare cases, more or less around the clock. The prospect which is opened up is that because that would be lawful and that is – I am sorry if I have appeared to baulk at Justice Gageler’s question here but, yes, I have always said that is lawful to look after the land.

But what we argue is that that will not be use or occupation in the collocation “lawfully used or occupied”. That is simply the lawful conduct of holding the land which, in our submission, can only be lawfully used or occupied pursuant to statute. That is our third point. Our first point is, and the statute relevantly is, the combination of the lands and prisons legislation which is the dedication and the proclamation, so the - - -

KIEFEL J: Could I take up a little more the point you made earlier about the point at which the Aboriginal Land Rights Act takes effect?

MR WALKER: Yes.

KIEFEL J: On your submission, it is to deny the option to the Minister of considering what, if any, further purpose should be given to the land once - - -

MR WALKER: Yes.

KIEFEL J: - - - occupation is not achieved. On one view, the decision in Wagga, although not expressed, might permit the inference that it – or it is consistent with the notion that in that case the land could be seen as no longer necessary because a decision had been to sell it. It had not been used for a long time and a decision had been made to sell it.

MR WALKER: Yes.

KIEFEL J: But here this is a point which was not really raised in Wagga. We are in different territory.

MR WALKER: No, that is correct.

KIEFEL J: Here it is not necessarily so clear that the land is considered no longer necessary for any particular purpose, but rather that it is being occupied whilst that decision is being made. So why would the Aboriginal Land Rights Act necessarily take effect to deny an inference about the land being redundant or necessary?

MR WALKER: The answer goes back to matters I have already put about the interrelations between paragraphs (b), (b1) and (c) in subsection 36(1) of the Land Rights Act. Items (b1) and (c) are the only cases of what I will call need, a public need, which removes the land from being claimable. They are the only stipulations and they stand in contrast to the rather less demanding public desirability that I drew attention to in the Crown Lands Act for a reserve.

There are two kinds of need that are seen in each of (b1) and (c). There is a present need and there is a probable future need – so needed or likely to be needed. That indicates very clearly that in order to be disqualified on those grounds, the Crown needs to point, the relevant Minister needs to point, either to a current state of affairs which amounts to a need – and it was not attempted in this case – or a state of affairs probable – it need not be imminent, I suspect, but certainly a probable state of affairs – as to a future need. That was not attempted in this case either, neither for residential lands nor the central public purpose.

The position in relation to need for this land was that the only four kinds that could be posited – residential, present need, future need, essential public purpose – did not exist so far as the forensic stance of the Minister was concerned. We are not concerned to try and make that out.

What Justice Kiefel’s question raises is a possibility that on reading section 36 as part of a scheme, and in particular the integers of section 36 itself in that scheme, there is also a concept of need of a less precise kind that informs paragraph (b) or, to put it another way, during a period when it is not known whether the land is needed or not does an understanding of how 36(1)(b) operates result in the land in the meantime being lawfully, say, occupied precisely because the state of need is not known?

That would be odd because, in our submission, it would have been extremely straightforward to provide that land is not claimable if it is not known whether or not it is needed for any public purpose. That is obvious because both dedicated and reserved land can be claimable, and both dedicated and reserved land can be described as being regarded as appropriate at least and in many cases needed for a public purpose.

That is a sensible way to describe the trigger both for reserving and dedicating. That does not suffice to make it non-claimable, notwithstanding that higher priority is given to the land rights. “Lawfully used and occupied” cannot be read as meaning a state of affairs where there is a need of a kind shown by reservation or dedication – we know that is so, because it would be absurd to make them claimable in that case – and it does not mean thinking about whether the needs in (b1) and (c) are true, because the date the claim is made, a decision has to be made under (b1) and (c) as to whether it is needed or is likely to be needed for that purpose. If the answer is “do not know yet”, then that means you do not make that out, that disqualifying - - -

FRENCH CJ: You cannot hold it and occupy it for the purpose of, as it were, providing time while determining what use it would be put to.

MR WALKER: Exactly. That is our point.

GORDON J: Your pragmatic solution is that at the time that the proclamation is withdrawn or revoked, if a decision had been made then or a decision was likely to have been made then under (b1) or (c), it should have been made at the same time?

MR WALKER: Quite. It is not a normative proposition but, yes, if it factually was the case that they were needed, one assumes that a property as prominent as the Berrima Gaol would not, as it were, simply be - - -

GORDON J: Go back into the pool.

MR WALKER: It would not go back indifferently into a pool; that is, it is not just bushland. It is not land that no pastoralist wants to take up, et cetera; not wasteland in any sense.

Your Honours, it is for those reasons that paragraph (b) cannot or should not be interpreted as being informed by a concept of needed or not needed and, in particular, does not authorise a reading which regards the state of wondering or doubt or indecision where it is not presently needed, and it is not known whether it is going to be likely to be needed in the future. That does not appear from paragraph (b) at all, and occupation is not a concept – that is, the notion of activities on and in relation to the land – informative of possession, authorised by possession, and therefore only for those purposes to which the land can be put lawfully.

None of that is suggestive of it being made out simply upon proving that in the mind of the State, it is not yet known whether this is land that will be needed either for (b1) or (c), or indeed for anything else for which it may later come to be lawfully used and occupied. In this case, it would need a revocation of the dedication; either a new dedication, if it is to be treated as dedicated land, or being dealt with as Crown lands either by way of sale or lease.

But along the way, those administrative decisions do not themselves either before they are made, while they are being considered or after they have been made, none of them in themselves amount to use or occupation. It is lawful to consider whether to sell Berrima Gaol, but it is not a use or occupation of Berrima Gaol to be considering whether to sell it.

It would be unlawful to use the site for anything other than gaol purposes apart from those matters that this Court looked at in relation to sale in Wagga Wagga which did not amount, so the Court said, to lawful use or occupation for the purposes of section 36. It was not unlawful to be selling the former police station, not unlawful at all. There were provisions of the Crown Lands Act being invoked that authorised it, but it did not amount to lawful use or occupation within the meaning – lawful use within the meaning of 36(1)(b) because, as I say, of the schematic need to understand that 36 makes available land which is not required for the specific purposes that section 36 contemplates.

Subsection (b1) and (c) are obvious, (d) and (e) are the parallel federal system, (b) respects the rights of the persons or agencies. They may be private persons under a lease. It respects the rights of those who are lawfully using and occupying and, in our submission, that will never by definition be simply the action of the Crown Lands administration in holding the land, including whatever is reasonably necessary involved in holding the land, visiting it, working on it, et cetera, pending a decision.

It is that period of a pending decision which is the open window for the land rights claim. The land rights scheme does not turn on a definitive decision being made that the land is not needed. That could not be right because you can make a claim against a current dedication or reserve and it is clear, as I say, that there is a priority given to another public purpose, which is land rights, and is a priority that only has two superior to it in section 36, neither of which applied in this case.

It is for those reasons that the holding pending decision on need or public importance bespeaks both the absence of either of the two specific needs which disqualifies from being claimable, and urges against that being in itself either use or occupation which is lawful. It is a consideration and a holding of the land and, as I said, the holding of the land is that it has got to be vested. But being vested, the holding is a premise of the whole scheme.

Could I just return to a reference in further answer to Justice Nettle’s reference to Daruk? As your Honours know, particularly for our point 1, we say error occurs if question of lawful use or occupation is not addressed in the circumstances that pertain to the particular land, so the facts and acts which constitute the putative use or occupation need to be considered, and so does the state of law concerning the status of the land. Ours is gaol.

In Daruk it was public recreation and so the acts and facts which might constitute occupation in relation to a public recreation reserve are manifestly entirely different from that which might constitute use and occupation for a gaol. A grim humour can be got in the contrast between the lack of voluntariness and the duration of the use and occupation at least by prisoners of a gaol and the picnicking on a public reserve.

A more concrete example, closer to this case, can be seen in the approach taken by Justice Tobias in the Court of Appeal in the Wagga Case, which we cite in our written submissions at paragraph 30, where your Honours may recall his Honour specifically noted the inadequacy of security patrols as constituting, in that case, the state of affairs which section 36(1)(b) calls “lawful use or occupation”.

KIEFEL J: Mr Walker, I think the width of reference in section 36(1)(a) was touched on yesterday in a question. Are you able to say now whether there is something which qualifies as Crown lands that would fall outside the definition of 36(1) as lands vested which are able to be lawfully sold or leased, et cetera, as per paragraph (a)?

MR WALKER: Yes. The most obvious one, which is pretty large, I guess, are the reserves under sections 30A and 53 of National Parks and Wildlife Act 1974. What are called “nature reserves” are able to be created and are then enforceable by the prohibition of any other purpose and that is land reserved under a statute other than the Crown Lands Acts or the Western Lands Act and so it would fall outside 36(1)(a) and not claimable at all.

KIEFEL J: I see, but this land is dedicated under the Crown Lands Consolidation Act?

MR WALKER: In sequence, it is dedicated under statutes which, by transitionals and savings, are Crown Lands Acts.

KIEFEL J: Come into the Crown Lands Consolidation Act?

MR WALKER: Yes. National parks obviously in physical extent are a very large exception from claimable lands but the same principle would apply – reservation under any other statute apart from those referred to here. And that, of course, accords with what I call “the priorities question”. So politically there is a priority given over what I am going to call Crown lands and settlement reservations and dedications, the general kind, as a priority given for land claims except for the need or likely to be needed for residential purposes or essential public purposes, but otherwise a priority given to land claims, land rights.

Specific statutes otherwise which reserve may be thought and obviously are being treated as not subject to that priority at all. They are simply not available. Those statues which for specific purposes, such as national parks, reserve Crown land, remain in exactly that state - unable to be claimed. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours will see that our outline of argument is divided into five points. If I could start with the first of those – the capacity of the Crown to occupy its own land – and I will just talk at the moment prior to the 1855 Imperial Act. When referring to the Crown in this context, we are essentially referring to the Executive Governments, first of the United Kingdom and then of New South Wales, although of course in the case of the United Kingdom the prerogative powers of the Crown were at one time personal powers for the sovereign.

Justice O’Connor noted in South Australia v Victoria (1911) 112 CLR 667 at 710 to 711 that, as the rights of self-government were conferred on the colonies, those colonies assumed executive power in relation to the possession of public lands for public purposes from the sovereign. It may not matter for these purposes whether the Crown’s powers in relation to its own lands are described as instances of the prerogative or simply an incident of ownership under presumably the common law.

It seems to us, however, that they are best described as prerogative powers in Walsh v Minister for Lands for New South Wales [1960] HCA 52; (1960) 103 CLR 240. Justice Windeyer at 254 referred to the Crown prerogative of disposing of the wastelands of the Colony at will. In Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164, Chief Justice Barwick, with whom Justices McTiernan and Stephen agreed, noted at 169 to 170 that, in the absence of a contrary statute, the Executive’s powers in relation to Crown land – in this case land of the Commonwealth – found their source in the prerogative and not in proprietorship.

KIEFEL J: But were these lands which were also held as owner?

MR SEXTON: Yes, in this case, your Honour.

KIEFEL J: In these cases that you have just referred to?

MR SEXTON: In Johnson certainly, yes. Johnson was a case, your Honour, about the Black Mountain Tower. Justice Jacobs expressed the same view at 174 and in Commonwealth v Tasmania (1983) 158 CLR 1 at 211 Justice Brennan referred to the effect of legislation on quoting the prerogative exercisable over the wastelands of the Colony – in this case, of course, being Tasmania. Justice Evatt noted in Farley [1940] HCA 13; (1940) 63 CLR 278 at 322 that, after Federation, those prerogatives exercisable by the Executive in the colonies, so far as they were in the nature of proprietary rights, were inherited by the Executives of the States.

Now, if the powers to deal with its own land do not arise or did not arise from the prerogative, they would nevertheless, we would say, arise from the fact of ownership on the basis that the Executive, for these purposes, would be in the same position as any individual. Your Honour the Chief Justice discussed this question without, in a sense, answering it because it did not need to be answered in those cases – in Pape (2009) 238 CLR 1 at paragraph 126 and Williams [2012] HCA 23; (2012) 248 CLR 156 at paragraph 22. I think your Honour observed there that Professor Winterton had said that this distinction was not one perhaps of great utility.

This is, of course, not a case about the alienation or the lease of Crown land but simply occupation, although all of these powers would be exercisable by the Executive, we would say, in the absence of a contrary statute. As Sir Edmund Barton observed in Williams - your Honours have already been taken to that case[1913] HCA 33; , (1913) 16 CLR 404, but in this passage at 429 to 430, the empowering of the colonial legislature to deal with Crown lands necessarily empowered the Executive Government of the Colony to manage, control and use those lands, subject to the oversight of course of the legislature. Now, your Honours, can I move to the second of our points which - - -

KEANE J: Mr Sexton, just before you do, I know this is not in issue but can you just explain how it is that land that has been the grant of a fee simple to the State of New South Wales, as this land has been, how is it that it is also land vested in Her Majesty?

MR SEXTON: Well, your Honour, that is the term that is used in the Aboriginal Land Rights Act.

KEANE J: Quite, and this land, in 2009, I think, became the subject - it was bought under the Torrens title, and the effect of the Real Property Act, as I understand it, is that it is held by the State of New South Wales as for an estate in fee simple.

MR SEXTON: Your Honour, that term, in the Aboriginal Land Rights Act, seems to us to encompass land that perhaps in terms of the title deeds, would be described as owned by the State of New South Wales, perhaps, by the Crown in right of New South Wales. I am not sure there is any distinction between any of those.

KEANE J: Well, as I say, it is not in issue but it might have been thought that under the Crown Lands Act and the Crown Lands Alienation Act, land vested in Her Majesty was a description of land held under the radical title of the Crown before any disposition was made.

MR SEXTON: I am just looking at something that has been passed to me, your Honour. Section 13H of the Real Property Act 1900 (NSW), which says that:

Where the Registrar-General becomes aware that land . . . comprised in a folio of the Register has become Crown land . . . the Registrar-General shall make such recordings –

in a sense to that effect and may record:

“The State of New South Wales” as the registered proprietor -

So, it seems to us, your Honour, that, as I say, those terms “land vested in Her Majesty”, “State of New South Wales”, “Crown in right of New South Wales” - - -

GORDON J: I think the answer may lie in section 13 of your Interpretation Act which provides that:

(a) a reference to the Sovereign, (whether the words “Her Majesty” . . . is a reference to the Sovereign for the time being, and

(b) a reference to the Crown is a reference to the Crown in the right of New South Wales.

That might provide some assistance.

MR SEXTON: Thank you, your Honour.

KEANE J: But on any view, this land now being held by the State of New South Wales as for an estate in fee simple, occupation is an incident of the right of ownership so that occupation, if there is occupation in fact, why would not that be the basis on which the land would be lawfully occupied, if it is occupied in fact, that it is occupied lawfully because it is occupied by its owner?

MR SEXTON: Well, that is certainly what we say, your Honour. What my learned friend says is that, in the absence of some express statutory authorisation that that would not be the case.

KEANE J: Well, it might be said that that depends upon the notion that occupation has to be purposive whereas if one has not vacated the land, if one is actually in occupation and one has a right to be in occupation, one is lawfully in occupation.

MR SEXTON: Well, as your Honour appreciates, we say that as an incident of the executive power that is the situation here. There is a number of ways in which one can reach that result, but we say that there does not need to be any statutory authorisation.

KEANE J: To the extent that there needs to be statutory authority for the occupation, the statutory provisions which authorise the issuing of certificate of title by way of fee simple would answer the need, would they?

MR SEXTON: Well, they do not. I think what the Court of Appeal said, and we would be inclined to accept, is that the conversion here to the Torrens system did not alter the essential position of ownership, so that from our point of view it is the ownership, the criterion of ownership, that determines and allows the occupation.

KEANE J: All right.

MR SEXTON: Your Honours, I was going to move to the question of whether what we say were the original powers and capacities of the Crown to occupy its own land were in any way affected by the 1855 Imperial Act. Your Honours have been taken to that provision, section 2, but we would say that in its natural and ordinary meaning and in its historical context that what this provision did was allow the New South Wales legislature to deal with Crown lands as it had not been able to do up till that time, but without affecting the power of the Executive in areas where the legislature chose not to exercise those new powers.

This proposition seems to us to have been assumed by Sir Edmund Barton in the passage that I have already referred to from Williams and in the same case by Justice Higgins where he said at 465 that following the passage of the 1855 legislation in the absence of a contrary statute the power that the Governor had in relation to Crown lands in New South Wales remained in what was by that time the Executive.

So it is not really necessary, we would say, to invoke the presumption that the Crown’s prerogative for other capacities can only be affected by express words or necessary implication in a statute. But it would certainly be true, in our submission, that section 2 does not meet that particular standard and we - - -

GORDON J: And sections 1 and 43 of the Constitution that deal specifically with the express power of the legislature to make these sorts of laws?

MR SEXTON: We would say the same, your Honour. They certainly give the power, that is right, but they do not exclude the Executive from exercising power, as it always had.

GORDON J: And Justice Gummow in Wik at 172 to 174?

MR SEXTON: Yes. We assume from Justice Gummow’s comments there that what he is saying about the Queensland equivalent of the New South Wales legislation is that it did withdraw the prerogative power to the extent that the legislature filled that gap. That was the context in which he was looking at it there. He refers to a number of authorities which deal with alienation of Crown land, not with occupation. Perhaps more importantly we would say that that is the context in which he made those comments.

I was going to refer your Honours to Barton v The Commonwealth, [1974] HCA 20; (1974) 131 CLR 477, where that presumption is referred to by Chief Justice Barwick at 488 as being extremely strong and also by Justice Mason at 501 and Justice Jacobs at 508.

There may also be, as the Court of Appeal suggested, an argument that section 2 of the Imperial Act has been impliedly repealed. That is of course possible now by reason of section 3(2) of the Australia Act 1986 and section 6 of the Crown Lands Act requires legislative authorisation for all dealings with Crown land including occupation. So there is, it seems to us, certainly an argument, if one were to get to that stage, which we say is not necessary really on the earlier arguments that we have presented.

Your Honours, our third point, the question of whether there is any New South Wales statute that would affect the Crown’s right to occupy its own land, putting the imperial legislation aside for these purposes – can I say it is a general point, with respect to my learned friend. His argument seems to us to involve a highly artificial analysis of the functions of government. He has really atomised the operations of the New South Wales Government in a way to suggest that almost any action requires some sort of express statutory authorisation and we would say that really flies in the face of the history of public administration in all of the States and the Commonwealth.

In one sense, the answer to the question of whether there is any New South Wales statute that would affect the Crown’s right to occupy its own land is no, because the land here being dedicated for a public purpose does not fall within the definition of “Crown land” under the Crown Lands Act. However, obviously, the Crown Lands Act deals with land that is being dedicated for a public purpose, and before that land can be disposed of, it may be necessary to comply with various procedures under the legislation, which your Honours have been taken to, dealing with the revocation of dedications, assessments, et cetera. Arguably, on another basis, the legislation, the Crown Lands Act, impliedly authorised the occupation of the land pending those procedures being implemented. There are a number of ways, really, of reaching, we would say, the same answer to that question.

GAGELER J: How does the implication arise?

MR SEXTON: Your Honour, on the basis that pending those procedures being implemented, the land needs to be continued, of course, to be occupied by the Crown.

GAGELER J: One way of reading it would be to say you start with section 6. If the land is not dedicated, then there is a prohibition on any use or occupation and then you would move to the point of saying if the land is dedicated, then that prohibition no longer applies; in other words, the dedication itself carries the necessary statutory authorisation to act within the dedicated purpose.

MR SEXTON: Your Honour, one of the problems here is that, in a sense, the dedicated land is taken out of the definition of “Crown land”. On the other hand, dedications are dealt with extensively by the legislation. That is why we say that, in one sense, the legislation does not deal with the land here, but in another sense, of course, there is provision under the legislation for the revocation of dedications for assessments when that is going to happen. Impliedly under the legislation, there may be authorisation for occupation.

GAGELER J: What, in your submission, is the effect of dedication? What is the statutory effect of dedication?

MR SEXTON: Your Honour, it designates the public purpose for which the land is to be used. I will come to this, but we say that there cannot be a use that is inconsistent - - -

GAGELER J: Does it limit, or does it empower, or does it do both?

MR SEXTON: It does both, in a sense, your Honour. I will come to it in a moment, your Honour, just that question of what we say is occupation here, of course.

GORDON J: Do you accept that when we are looking at the concept of dedication for the purposes of the 36(1)(a) and (b) analysis that one takes into account the way in which dedications are treated under the Crown Lands Act as part of the statutory context?

MR SEXTON: I am not sure there is that interaction between the two statutes, your Honour. Under the Aboriginal Land Rights Act, one of the exceptions to claimable Crown land is the question of lawful use or occupation. The real question is what is entailed in that, and the fact that the land may have been dedicated does not seem to us to say that it cannot fall within those categories. My learned friend’s argument, really, is that in a sense, the Crown can never rely on – perhaps in the absence of some sort of express statutory authorisation – that particular provision of lawful use or occupation.

NETTLE J: Mr Solicitor, it is plain enough, is it not, that dedication of land in forms what is required to establish the use of the land for the purpose of 36(1)? That much is plain.

MR SEXTON: Yes.

NETTLE J: Now the question is: does the same sort of consideration apply to the word “occupation” in that collocation?

MR SEXTON: Well, your Honour, obviously the notion of occupation will need to be consistent with the - or not inconsistent with the dedication but it does not perhaps have the same connection as in the case of use – I do not think so.

Our fourth point, a question about emanations of the Crown occupying the land at the time in question, in our submission, again on my learned friend’s submission, there is an artificial element to the way in which he puts this particular aspect of the case.

We would say that the Executive Government of New South Wales operates through a range of individuals and entities, one of which is Corrective Services New South Wales, which is an agency of the Department of Justice – it is not a legal entity. In those circumstances, we would say that the occupation – I will come to the question of occupation as a factual question in a moment – can be arranged, organised, conducted by officers of Corrective Services New South Wales or, indeed, by the officers of any department or agency of the Executive Government of New South Wales.

GORDON J: And who, in your submission, is the occupier here?

MR SEXTON: Your Honour, we would say it does not matter. It is the Crown in the right of New South Wales, the Executive Government of New South Wales, the State of New South Wales – all of those, operating through its servants and agents.

NETTLE J: That power of occupation you say is implied in sections 84 and 85 of the Crown Lands Act?

MR SEXTON: On one view, yes, that is right, your Honour. It may not need – does not need, we would say – that kind of implied statutory authority.

NETTLE J: It is enough that it can be done and exercise the prerogative power or something analogous to that?

MR SEXTON: That is right, yes, but there is an argument that, as I said, because of the way in which those provisions deal with changes from dedications that what happened here would be authorised as well by that statute.

GAGELER J: Mr Solicitor, at the Commonwealth level there is an administrative arrangements order which specifies the areas of responsibility of various Government departments. Is there an equivalent for the States?

MR SEXTON: Yes, there is, your Honour. Well, there is in New South Wales, your Honour.

GAGELER J: I know there is one that deals with those Acts which specific Ministers are to administer, but is there an instrument signed by the Governor or approved by the Governor that also allocates responsibilities to various departments?

MR SEXTON: Yes. Not to the departments; I think to the Ministers administering the various Acts, your Honour.

GAGELER J: I see.

MR SEXTON: Your Honours, if I can come to the fifth point, the question of lawful occupation. As I have already I think indicated in answers to questions, at the outset we say that what occurred in this case was not circumscribed by the dedications applying to the land, given that the Acts in question were in the furtherance of, incidental to and ancillary to the purposes for which the land was dedicated.

I refer your Honours to Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 88. Justice Windeyer, of course, has referred to his dealings with the history of land law in his judgment. He refers here to the question of incompatibility with dedications and reservations. We will come to it in detail in a moment, but what we say is the occupation of land in these circumstances is not inconsistent with the dedications in question. The land stopped being used as a gaol, but if it was going to be used for some other purpose or disposed of then various procedures had to be implemented, and while those were taking place we would say that the land could be occupied by the Crown and that that leads to the question of whether the facts and circumstances here allow for a finding of lawful occupation.

BELL J: But this argument does not depend upon a view that the people undertaking community service were in some way connected with a gaol purpose.

MR SEXTON: That is so, your Honour.

BELL J: There could have been people from an educational institution there or whatever.

MR SEXTON: Yes, quite so, your Honour.

FRENCH CJ: This is a kind of penumbral zone at the end of the dedication use.

MR SEXTON: Yes.

FRENCH CJ: And you say is attached to that necessarily in terms of the possibility of using it for something else.

MR SEXTON: Yes, different we would say from what happened – I will come to those factual matters in a moment – but different from the Wagga Case, for example, where quite different circumstances in relation to what happened to the land after it ceased being used – it was a motor registry. I am trying to remember.

FRENCH CJ: There is a constructional question, of course, is there not, which is the anterior question? How high is the threshold of occupation which is necessary to exclude land from claimable Crown land for the purposes of the Aboriginal Land Rights Act having regard to the purposes of that Act?

MR SEXTON: Yes, and we accept that - your Honours would be aware there is Wagga Case in this Court, there are various decisions of the New South Wales Court of Appeal and I think the - the occupation has to be more than notional. So it has to meet a certain test. We accept all of that and say that the test is meeting this case. The Court of Appeal primary judge found to that effect.

If I can say to your Honours in relation to that particular question that the Berrima Correctional Centre closed in November 2011 and that same month - this is in the appeal book at 35. I do not know that your Honours need to necessarily go to it at the moment. I will just refer to them – but the same month the State Property Authority wrote to the Crown Lands Office advising that Corrective Services New South Wales had requested it to undertake initial due diligence for each of the properties to assess their likely future use.

Then by 19 December 2011 the State Property Authority had completed its initial review and concluded that, as I said, the preferred use of the property is likely to involve the creation of a Crown reserve under the management and care of a reserve trust. They recommended that ownership of land would transfer to Crown lands. That is still at page 35 of the appeal book, paragraph 14.

So the appellant’s land claim was made on 24 February 2012, a little over three months after the closure of the correctional centre, we would say not an unduly lengthy period here in which to consider and arrange the future use and ownership of the land in question.

It needs to be understood or noted, in our submission, that on the appellant’s case that if the gaol here had closed on Tuesday, a land claim would be available on the Wednesday, even if steps had been put in motion to arrange a new use or the sale of the site and even if there were physical acts that demonstrated occupation in the meaning of the relevant provision of the Aboriginal Land Rights Act. We say that, in a sense, from the point of view of public administration, cannot be right and it would be a very unusual conclusion to reach on the basis of the Aboriginal land rights legislation.

So what we really say is that there must be some scope within the term “occupation” for the holding of the land by the Crown pending a decision as to a change from one use to another, or the disposal of the land.

BELL J: Here the proposed change was that the land might presumably have the dedication revoked prior to it becoming a Crown reserve subject to a reserve trust. Is that so?

MR SEXTON: Yes, your Honour.

BELL J: So your contention is that it might be lawfully used or occupied notwithstanding the dedication for gaol purposes for a sufficient period to enable a decision of that character to be made notwithstanding that the intention was not that it was land needed as residential lands or for an essential public purpose?

MR SEXTON: Yes.

BELL J: Yes.

MR SEXTON: Exactly, your Honour. There was to be – I do not have those provisions – but I think there was going to be consultation with the local community as to some of the possible uses that could be made of this land. Obviously there may be some limit on the time that could be – this is a matter of degree, the time that could be taken and still amount to a reasonable period, but the period here was relatively short, we would say.

Now, your Honours have been taken to the physical acts in a sense on which we rely because they were set out in – and your Honours were taken to them by my learned friend in the judgment of the primary judge which is in the appeal book at pages 314 to 319. My learned friend, I think, in a sense concedes that the 24 hour on-site security is a significant factor. He was not as enthusiastic about the other matters that were listed by the primary judge, but we would say that they need to be taken collectively, of course. The primary judge and the Court of Appeal were satisfied that they amounted to occupation.

It is significant, in one sense, we would say, that in relation to the community service visits that Justice Bell referred to, and we do not, as

her Honour pointed out, rely on them as being a gaol activity, but it is significant we would say that in addition to the various visits that were made that there were seven visits to the site by such groups of persons to carry out work in the very month in which the land claim was made; that is, February of 2012.

So, in our submission, this is in terms of occupation and the facts of occupation a very different case from some of the other cases that have been dealt with by the courts in this area. Unless there is anything else, your Honours, those are our submissions.

FRENCH CJ: Yes, thank you, Mr Solicitor. Solicitor-General for Tasmania.

MR O’FARRELL: If it please the Court. Your Honours, Tasmania is here effectively to protect what residue of the prerogative there might be surviving after the enactment of legislation which affects its lands. Now, your Honours, yesterday afternoon we felt that perhaps the case that we came to meet was being put in a slightly more qualified way. We thought, and I think it has come back to this this morning, that the case was really all or nothing, but there is no non-statutory power left to the Crown and the right of the State to deal with its wastelands.

But yesterday, as I understood my learned friend, Mr Walker, when he opened this point, it was suggested that there were factual circumstances which affected the availability of the power. He said, effectively, that there were a combination of circumstances, including the presence of security guards on-site – I do not want to put words into his mouth – which I understood him to mean, affected the question of whether a prerogative power is available to lawfully use and occupy the site.

Now, if that is the way the case is put, that the State’s prerogative power really depends upon the circumstances, then there was probably no need for us to turn up. It also occurs to us, as Justice Nettle put to my learned friend yesterday, that there is really no need to deal with this point in the context of this case because it will be taken up under the appellant’s proposition 1. However, as a result of what has been said this morning, we simply say that at the moment just to ensure we have covered what we apprehend as being said in Court - in light of what has been said this morning, we really come back I think to the case that we came here to meet.

Tasmania is in a slightly different position, I suppose, than New South Wales in the sense that the power that was given to us in 1855 was conferred by the Australian Waste Lands Act 1855 which was part of the schedule to the Imperial Act and the wording is slightly different, but in the authorities which have dealt with these statutes, effectively the powers that were given to the States are said to be co-extensive. So, that is the way we would put our case. We say that effectively New South Wales, under their Constitution Act 1885, and Tasmania under the Australian Waste Lands Act 1855, are in the same boat.

Now, it is common ground, as we understand it, that on the ground of responsible government to the colonies, there was effectively no divestment of the Crown’s proprietary rights in its wastelands. In our outline, we have given your Honours references to Commonwealth v Tasmania (1983) 158 CLR 1 at 211 – that is the judgment of Justice Brennan, as he then was – and also New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 439; that was Justice Stephen.

The sovereign’s title was only affected in that it was now held in the right of the colonies. That is the way that Justice Isaacs put it in Williams’ Case. We would submit from that that effectively what was transferred by the Constitution Acts, by the 1855 Acts, was consistent with what was said in Williams, a function of government – it was a governmental function. We also submit that with that transfer of legislative power came a transfer of executive power. We rely for that proposition on Williams, the judgment of Acting Chief Justice Barton at page 430. We also rely on the judgment of Justice O’Connor in South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667 at 710 to 711, to the effect that there was accession of executive power to the Colony necessary for the purpose of its self-government.

We would submit that effectively the legislature’s response to a conferral of power such as that given in the 1855 Acts could only be a legislative response. The legislature cannot effectively do anything with Crown lands. It cannot occupy the lands; it could not effectively manage them; it could not use them for any purpose – not in a sense that the Executive can undertake that function. All the legislature can do on the ground of power is to say something about it in an act of legislation. Effectively, the Executive, in Tasmania for example, would have had nothing to do with its lands from 1855 until it first enacted its Crown lands legislation in 1858.

So, in our submission – and this was taken up by his Honour the Chief Justice yesterday – what is to be done in the hiatus? Now, we would then take up what Justice Higgins asked himself at page 465 of Williams where he said that effectively – in dealing with a factual proposition about that case, but he nonetheless said at the top of page 465:

The Colonial legislature could make laws with respect to these lands; but what if there are no laws made applicable?

Then, having asked himself that question, a little further down the page he said:

There is nothing in the Constitution –

that is, the 1855 Act:

to take away any power which the Governor had at the time of the Constitution -

We also refer your Honours to again Acting Chief Justice Barton at page 430, Justice Isaacs at 455 to 456. The point is made quite plainly, we submit, in the Tasmanian Dams Case – I thought I had brought with me - at page 211, and what we would submit is certainly the blueprint that Tasmania has been operating under. So, in the first substantive paragraph on that page his Honour said:

When the first Ministry of a responsible government took office in Tasmania . . . in December 1856, the waste lands of the Colony and their proceeds were in its control. It had not been necessary to convey title to those lands; what was important was the legislative power to affect the prerogative exercisable over the waste lands of the Colony and to determine the disposition of revenue derived from the exercise of the prerogative. With responsible government, the Tasmanian Ministers became the advisers of the Crown upon the exercise of the prerogative over the waste lands of the Colony. The colonists thus wrested control of the waste lands and their proceeds from the Colonial Office –

Then further down in the second paragraph on that page:

The administration of Tasmanian waste lands thus became a function of the Colonial government . . . The Crown’s prerogative, that fund of powers that is held and administered in the interests of the public, was controlled by Ministers responsible to the Tasmanian Parliament and was amenable to modification or extinction by Act of that Parliament –

We say, your Honours, that New South Wales was no different and so much appears from the judgment of Justice Stephen in the Seas and Submerged Lands Case at page 439. If your Honours please.

FRENCH CJ: Thank you, Mr Solicitor. The Solicitor-General for Victoria.

MR NIALL: If the Court pleases. The foundational proposition for point 3 of our learned friend for the plaintiff is that the State needs statutory authority to use or occupy Crown land and the source of that principle, as we understood the written submissions, was section 2 of the 1855 Act. In that respect, as we say in proposition 1, it fails to appreciate the distinction between on the one hand grants and expropriation of Crown land into the private domain, and appropriation to itself, either by way of dedication, reserve, use or occupation.

In relation to the latter, section 2 did not abrogate that aspect of the problem. In relation to the former – that is, grants and expropriation – it is not necessary, in our respectful submission, for the Court to deal with that question because that is not in issue in the case. There is no grant or expropriation to the private domain.

The purpose of section 2 was to ensure that revenue from sale was brought into the local control, and the two Acts that our learned friends took your Honours to in 1861 were both about alienation or the creation of rights. One, of course, was alienation by way of grant and the other one occupation, but the occupation there referred to is by leasehold. Of course, both of those involved the creation of proprietary interests in the private domain. Prior to 1855, of course, the Imperial Government used the revenue for encouraging or paying for people to come to the colonies, but after 1855 the money came to local control. Justice Windeyer deals with the history in Rutledge at page 72.

In our submission, when one looks at management and control in section 2, it is satisfied where the Executive appropriates to itself an interest in the relevant Crown land. Of course, there are at least two ways to look at it. One is that that is just an incident of responsible government. The Colonial Government retained the land and the Executive were responsible to the Parliament in the uses to which they put that land. Another way to look at it is that it remained wastelands for the purposes of section 2. So there was no divestiture of wastelands into the private domain. Once that dichotomy is appreciated there is really no reason why section 2 would be seen to abrogate the prerogative.

Justice Brennan deals with this in Mabo [No 2] 175 CLR in an extensive analysis at page 68 of the report. The dichotomy is seen at page 68, point 9 of the page where his Honour refers to:

dispossessed by the Crown’s exercise of its sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown’s purposes.

Of course, at the time of 1855 it was assumed that the Crown had full beneficial ownership, but in fact it had radical title when it could exercise sovereignty in respect of it as a predicate, as Justice Brennan explains. Justice Brennan returns to the passage at the bottom of page 70 of the report where his Honour refers to, at point 9:

These propositions leave for resolution by the general law the question of the validity of any purported exercise by the Crown of the power to alienate or to appropriate to itself waste lands of the Crown. In Queensland, these powers are and at all material times have been exercisable by the Executive Government subject, in the case of the power of alienation, to the statutes –

His Honour goes on and refers expressly to the existence of prerogative power in 71.

Your Honour Justice Gordon referred to Justice Gummow’s judgment in Wik at 173 to 174, 187 CLR 1. In that passage, Justice Gummow refers to the proposition that:

The management and control . . . was vested in the legislature and any authority of the Crown in that respect had to be derived from statute.

His Honour gives a reference at footnote 628 to Justice Brennan in Mabo at 63 to 64 where his Honour is expressly dealing at the bottom of 63 with the Crown’s power to grant an interest in land. Your Honours will see that at the bottom of 63.

Once one puts those pieces together, in our respectful submission, section 2 simply said nothing about the capacity of the Executive in right of the Colony to appropriate to itself by use or by occupation, by dedication or by reservation, and that is made clear by Justice Barton’s judgment in Williams 16 CLR at 429 to 430, and in the Privy Council in Lord Sumner’s speech at (1915) AC 582.

In our submission, no statutory power is required. In this case, it appears in our submission in propositions 2 and 3 that there are two sources of statutory power to occupy the land. One is as owner of fee simple, recorded under section 13D of the Real Property Act with the rights that are attached in 13J, and the second by way of dedication under the Crown Lands Act.

In terms of dedication, in our submission, the relevant point of inquiry is whether the dedication limits the rights of the Crown as owner.

Where the Crown holds it as statutory title in fee simple is owner in fee simple and the question is does the dedication cut down or limit the ability of the owner, in this case the State, to use or occupy the land? That is a question of inconsistency with the dedication.

What one does not look for in a dedication is the source of the authority to occupy or the authority to use. So as the appellant would have it, the State needs to look for both some ownership interest plus statutory authority as to use and occupation. In our submission, the relevant question is, having identified ownership, either statutory or radical title together with an exercise of sovereignty, one looks to see whether there is any statutory prohibition or limit which would circumscribe the ability of the State to use and occupy the land. In our submission, the State does not need, either by section 2 or otherwise, any statutory authority in order to exercise rights of occupation and use in respect of Crown land. They are the matters, if the Court pleases.

FRENCH CJ: Thank you. Yes, Mr Quinlan.

MR QUINLAN: May it please the Court. As will be apparent from our outline of oral argument, in paragraphs 2 and 3, Western Australia intervenes in relation to what is essentially the second and third propositions in my learned friend Mr Walker’s outline, and as we note it is of course not necessary to go there or to consider the submissions that we make if the case is determined on the basis of point 1.

We then go on, in relation to what we submit in relation to the question of whether or not the Crown requires any statutory authority to use, occupy land over which it has beneficial ownership. In paragraph 5 we have dealt with section 2 of the New South Wales 1855 Act, or the Imperial Act of 1855. I do not propose to rehearse the submissions that have been made in relation to that, save to note that, in our respectful submission, the result in Williams’ Case itself supports the conclusion that no statutory authority was required by the Executive Government of New South Wales to do that which it proposed to do in relation to the Crown land in that case.

Each of the members of the Court specifically in the context of section 2 concluded that the proposed use was within the power of the Executive of the State and we have collected both the references to our written submissions and their Honours’ judgments in paragraph 5.

Now, your Honours, can I just finally, in relation to that point and concerning the passage in Wik of Justice Gummow which refers to the effect of the Queensland equivalent of section 2, just note one reference. That passage itself was referred to in the joint judgment of Chief Justice Gleeson, Justices Gaudron, Gummow and Hayne in Western Australia v Ward [2002] HCA 28; 213 CLR 1, in relation to their Honours’ discussion of the history of land law in Western Australia.

Their Honours, recounting the similar history that resulted in a provision equivalent to section 2 in the 1890 Imperial Western Australia Constitution Act, referred to Justice Gummow’s comment at paragraph 167, which is at page 121 of the report, and we simply note in that context their Honours specifically placed Justice Gummow’s observation in Wik in the context of disposal of Crown lands being wholly regulated by statute, following the passage of those provisions.

We then go on in the oral outline to address what, in our respectful submission, was the tension which was inherent in the appellant’s case between points 3 and point 1. That is the fact that the argument in relation to the Crown needing statutory authority as a result of section 2 of the 1855 Act, must be a proposition of general application which applies outside the operation of section 36 of the Aboriginal Land Rights Act and the tension was evident, in our respectful submission, in the ultimate recognition by our learned friends that there must be some room for what my learned friend characterised yesterday as responsible stewardship of a public asset, that there must be some basis beyond lawful use or occupation within the Land Rights Act where the Crown is lawfully using or occupying land but not in a way which fits - - -

FRENCH CJ: How does this impact on Western Australia’s interests or concerns?

MR QUINLAN: It impacts on Western Australia’s interests or concerns because the submission in relation to section 2 would apply equally to Western Australia in relation to the abrogation of the prerogative to use - - -

FRENCH CJ: I am sorry, I was really looking at your remarks in relation to the Land Rights Act.

MR QUINLAN: Yes, we were simply pointing out that the answer that is given by our learned friends to the resolution of the statutory powers, that is, the resolution posed by our learned friends which is, effectively, that there is an implied statutory authority to hold or preserve pending a change, we simply point out in the outline is not when one looks at the history of the operation of the prerogative powers of the Crown, a sufficient answer to the tension which our learned friends identify. That is, there is a great deal of use, activity, management, occupation of Crown lands which must be done and has traditionally been done by the Executive pursuant to prerogative which goes well beyond what might be described as the traditional power to hold land pending change in determination. We dealt with that in paragraphs 12 and following of the outline, for example, in relation to reserves under the Crown Lands Act for which there is no reserve trust created by the Minister for Lands.

In relation to land of that kind, there must be somebody, in our respectful submission, charged with the care and management of that land and the only available person that could be so, in our respectful submission, is the Crown, the Executive government as a whole. In that, in my respectful submission, I note my learned friend referred this morning to section 112(8) of the Crown Lands Act which refers to reserves that are being:

used or occupied by, or is being administered by, a government agency –

which in the definition of the Act includes government departments. Whilst that expression “administered by, a government agency” is used on a number of occasions throughout the Crown Lands Act, there is no provision of that Act which enables or empowers a government agency to be given control and management of a reserve for which there is no dedicated reserve trust. That is, the Act proceeds upon the assumption and, we say, with respect, the correct assumption that the Executive authority for a government department to use, occupy or administer Crown lands already existed and upon which the Act assumes and the Act does not remove. So it is not necessary to look to any statutory power for a government to do that but rather it is a matter of the prerogative which is continued.

The final submission we make at paragraph 15, in relation to the occupation of Crown land pursuant to executive powers that are non-statutory, there is no room, in our respectful submission, for any distinction to be drawn between, as our learned friends put it, the Crown Lands Minister or the Minister for Corrective Services and the government department under that Minister. Rather, in our respectful submission, when one is dealing with non-statutory executive powers that have not been conferred on a particular Minister by particular legislation, it is correct to say that it is the Crown who is doing the relevant acts, the Crown who is the occupant, the Crown acting through the principal executive officers, being the Ministers and their departments.

That was, as we point out in our outline at paragraph 14 and we refer to the House of Lords decision in Town Investments v Department of Environment, precisely the conclusion reached in that case; that is, that it was the Crown who was the occupant, albeit that the Crown was exercising those powers through the responsible Ministers and the departments. For that reason, in our respectful submission, there is, because it is executive non-statutory power being exercise, no relevant distinction necessary to be

drawn between the different Ministers and the different departments. If your Honours please, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Walker.

MR WALKER: If it please your Honours. In relation to the submissions of the respondent, and using my friend’s written outline for reference, shortly in response to 2.2 of course issue was well and truly joined between us as a matter of argument. The entire control and management being vested in the legislature of the Colony, those are words which, in our submission, by the express words called for by canons of statutory interpretation achieve really the only thing that those words can mean.

As to 2.3, section 6 of the Crown Lands Act does not speak to the entire control and management of all the land in question, including this land. This was Crown land that came to be dedicated and section 6, of course, excludes from its operation lands which, having been Crown land, have become dedicated.

As to 4.1, it is true of course that the Executive operates through a range of individuals and entities. In this case, leaving aside – well, perhaps not leaving aside – there is the possibility of tourists and found facts concerning CSO offenders and those supervising them and there were the round-the-clock shifts of security guards. The argument of my learned friend, the Solicitor-General, does amount to the proposition that their presence in the various ways and for the purposes that they are shown by the findings to have had, amounts to occupation by the Crown, by the Executive, by the State, in each case my learned friend says by its servants or agents.

In our submission, this is a point at which the otherwise difficult notion of notional occupation – that which is considered in the Wagga Wagga decisions in the Court of Appeal and in this Court – must have some play. There comes a point where sending a vermin trapper to spend a few weeks clearing some Crown land before it is offered for sale as pastoral land is not to be regarded as occupation for the purposes of section 36, just as we submit the hiatus or temporary phase brought about precisely because the premises were unoccupied and disused does not amount to any more than notional occupation by the Crown in the guise of the security guards.

It is significant, in our submission, that it is not suggested that it is the occupation of the security guards any more than it would be the occupation of the rabbit trapper in the case I gave which would answer the description of “lawfully used or occupied”. In each case, in our submission, something more than that notional occupation is required in order to prevent, as it were, a long and difficult plumbing job being all that is required to make unclaimable Crown land which is the subject of plumbing work simply in order to recognise that it is about to be turned to account as surplus land. Land which is about to be turned to account as surplus land is the paradigm of land intended to be claimable.

In relation to proposition 5 of the States’ answer, could I simply observe in relation to 5.2 that what the Chief Justice called, in a comment to my friend, a “penumbra notion” is what I intended by my expression “the carryover”. In our submission, it is the facts of the case that my learned friend, with respect, fairly put that provide the foundation for the answer to this. It is the combination of the restriction imposed by the extant dedication but the expiry of the statutory authority, the requisite authority to detain people – that is, to use it as a gaol – by reason of the revocation of the proclamation which brought about the position that obtained the so-called carryover or penumbra.

On the facts, as my learned friend points out, a preferred position included removing this land from the strictures of the dedication which would involve a revocation of the dedication and subjecting it to the regime of a reserve. Now, I do not mean a reserve in the defined sense that includes both dedication and reserve; I mean a reserving within that combined definition, and furthermore, having a reserve trust, the elaborate machinery for which your Honours have seen, the reserve of course being for a designated purpose.

Now, here there is something very anti-purposive, contrary to the scheme on any view to be seen in the Aboriginal Land Rights Act, thrown up because if that had been realised and the land had been freed of the dedication and subjected to a reserve trust and was not lawfully used or occupied, and the two do not go together necessarily; the reserve trust can be created and people still holding the meetings quarrelling about how it is to be actually enjoyed, without it being used or occupied. That would make it again the paradigm of land available – claimable land, because being dedicated and being reserved does not exclude land from this higher but not highest priority given to land rights.

So the oddity would be that while thinking about whether to bring about a status which would keep it claimable simply by holding it and looking after it passively, as our friends put it in their written submissions, there is a bar against it being claimed. That, in our submission, is not the hallmark of a transitional penumbra or carry-over period. That is a very large, injusticial reading of the words of section 36 and, in particular, reading into the notion of occupy, reading into that this notion of an administrative period of cogitation.

When one sees that on the facts of this case that period of cogitation was at the time in question appearing likely to come up with a status which would keep the land claimable, one wonders what was the purpose during that period of cogitation from preventing it on account of that cogitation from being claimable. Now, that is why (b1) and (c) are important because if it could not be shown that it was needed or likely to be needed at the date of claim for those higher priorities then they were not available as an answer to claimability.

It would be odd with respect if a reserve for what I will call a lower priority than land rights being the subject of uncompleted cogitation and the looking after meantime amounted to an occupation which would prevent it from being claimable until if that project came to fruition it would become claimable upon the reserve and it being noticed that there is no use or occupation.

That, in our submission, is the upshot of the argument against us and shows the lack of textual support for this idea of an interregnum of thought and passive looking after meantime of a kind which would involve maintenance of unoccupied and disused premises and the guarding of unoccupied and disused premises.

As to that matter, the argument against us gives rise to the possibility that by dint of maintaining unoccupied premises, they become occupied within the meaning of section 36. By dint of guarding unoccupied premises, they become occupied within the meaning of section 36. That seems odd and, in our submission, it gives rise again to a concern already voiced that we echo in our submissions, the need to avoid notional occupation satisfying the substantive proposition that ought to be seen as the category strictly to be construed which would stand in the way of this being claimable land.

Finally, in relation to the State as respondent, the matter that Justice Keane raised with my learned friend needs to be confronted by us. The switch in language from Her Majesty and, if you go back long enough, His Majesty, to Crown and later to State, may, I say this tentatively, be able to be justified as not an issue and it is not an issue between us, never has been, by reason, as Justice Gordon points out, if I may put it this way, of screwing up one’s eyes and looking sideways at section 13 of the Interpretation Act. It is not really quite right. Or noting the statutory mandate for the practice, see section 13H of the Real Property Act that my friend and I have drawn to your attention.

I could also note that the history of the Crown lands refers in its earlier iterations – you will see it in the first version of the 1913 Act, for example – to the lands as being lands vested in Her Majesty or His Majesty. That seems indifferently then to become Crown, which gives rise to the possibilities of the word “sovereign” and its cognates in section 13 of the Interpretation Act.

It suffices to say that so far as the parties to this litigation are concerned and so far as administration of the Aboriginal Land Rights Act is concerned, hitherto it has been, as we understand it, accepted that the expression “vested in Her Majesty” includes the land in question in this case by dint of that which was the – if I may use the expression – root of the title by which the State had a certificate of title issued in its name, because of that state of affairs that the certificate of title was issued.

Now, as my learned friend for Victoria and as the question asked by Justice Keane comes back to, however, but now that that certificate of title is issued and we are at least one perhaps two removes from radical title, what is the position with respect to lawful use and occupation within the meaning of section 36?

Your Honours will not be surprised to know that we say of it that the Crown or, I should say, the State of New South Wales is simultaneously no ordinary owner and like any other owner subject to the law. Let me explain. The State does not own this land for what I will call any private purpose. Thus, the notion in the argument, see proposition 7 in the Victorian outline, that the land can be used as it, the State, sees fit, can be rejected unless it is understood that we are talking about a public purpose. There is no private element in the absence of vitiating corruption in State-owned land and its use.

Next, it is like any other owner subject to the law and here the law restricted the use of this land and where occupation is purposive the occupation of the land for any other purpose than gaol purposes and that which opened the window for us – revocation of the proclamation prevented that only, that sole purpose from being carried out by use and occupation of the land. That is the reason why, in our submission, the proposition 5 in the State’s outline should be rejected.

Yes, in the absence of a dedication and a revoked proclamation, questions would arise concerning the assignment of contractors or officers of the State to Crown land – that is, no dedication, no reservation, just Crown land. Questions would arise as to whether anything more was necessary than to show the certificate of title in order to make good the notion of lawful use and occupation if those contractors and officers were doing things which amounted to the more than merely notional occupation of the State. That is not this case, of course.

Then, with respect, yes, lawfulness, perhaps primarily – that is, by first resort – comes to be examined by asking why are these people on the land? They are there with permission and doing the bidding of, they may be agents of, the owner, and the owner will be an invocation of legality for the reasons, with respect, that Justice Keane raised with my learned friend.

With respect to the Tasmanian submission, may I simply make it clear by way of disavowal that we certainly do not say that the prerogative comes and goes depending upon particular circumstances at particular times on particular pieces of land and I am sorry if I spoke obscurely in that regard.

In relation to the Victorian submission, I have already made an observation concerning proposition 7, or paragraph 7, in proposition 3. Management and control, in paragraph 1, proposition 1, is not a phrase which, understood historically and just linguistically, is confined to disposition whether wholly or for a term. In our submission, management and control are extremely apt and important words to describe, for example, the position of the Crown Lands Ministers under section 12 of the Crown Lands Act, which is more, of course, than simply disposition in the sense of alienation. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 12.44 PM THE MATTER WAS ADJOURNED