Goodwin v Phillips

[1908] HCA 55

7 CLR 1

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Statutes, construction of-Repeal by implication-Provisions of later Act inconsis-

tent with those of earlier Act-Proviso or exception from earlier ct-Crown Lands Act 1884 (N.S. (48 Vict. No. 18), sec. 93-Crown Lands Act 1895 (N.S.W.) (58 Vict. No. 18), sec. -Improvement lease-Ringbarking of timber -Condition of lease.

Sec. 26 of the Crown Lands Act 1895, which by sec. 1 (c) is to be read with and as part of the Crown Lands Act 1884 and the intervening Acts deal- ing with the same subject, authorizes the Governor to grant improvement" leases of Crown lands which by reason of inferior quality, heavy timber, or other cause are not suitable for settlement until improved and can only be rendered suitable by heavy expenditure, and to insert in such leases such covenants and provisions as may seem expedient according to circumstances,

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and provides, further, that the leases shall contain covenants and provisions for the improvement of the land and the expenditure of money thereon, pay. ment of rent, and the determination of the lease upon breach of its covenants or provisions.

Sec. 93 of the Crown Lands Act 1884 made it an offence, punishable on con- viction before justices by fine and forfeiture of the lease, for any lessee to ringbark timber on his lease without the permission of the Local Land Board.

Held, that, the scheme of the later section with regard to the preservation and the destruction of timber being altogether different from that of the earlier section, the later section should be construed as authorizing the Governor, if he thinks fit, to grant an improvement lease on conditions which will have the effect of excepting the lessee from the operation of the earlier section, so far as the conditions are inconsistent with that section, and, therefore

That, an improvement lease containing a covenant by the lessee to preserve certain classes of timber and giving him the right to destroy any other timber by ringbarking or otherwise at his option, and also providing a different penalty for breach, and a different tribunal for dealing with any question arising as to breach of conditions or covenants from those provided by sec. 93 of the Act of 1884, exempts the lessee from liability under the latter section for ringbarking timber on his lease without the permission of the Local

Decision of the Supreme Court (Ex parte Phillips, (1908) 8 S.R. (N.S.W.), 52), affirmed.

APPEAL from a decision of the Supreme Court of New South Wales.

The respondent W. O. Phillips, the holder of an improvement lease under sec. 26 of the Crown Lands Act 1895 (58 Vict. No. 18) of Crown lands near Warialda, was proceeded against on an information laid by the appellant, alleging that he, being a lessee of Crown lands, that is to say, the holder of the improvement lease mentioned, did, without obtaining permission to do SO from the Local Land Board, unlawfully cause to be ringbarked on his leasehold a large number of trees, contrary to the provisions of sec. 93 of the Crown Lands Act 1884 (48 Vict. No. 18). The respondent was convicted and fined at the rate of 2s. per tree, £600, and costs £35, in default imprisonment for twelve months with light labour. One of the conditions of the respondent's lease was as follows:-" (2) The lessee shall carefully preserve clumps of timber for shade purposes of not less than 60 acres in extent at suitable intervals on the area the total area of such clumps to be

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not less than 685 acres, and shall also carefully preserve" all trees H. of certain sizes specified "which are useful or likely to be useful for fencing or building purposes &., subject to the provision that the lessee may cut and use any timber for fencing or other improvements within the leased area. Subject to the above excep- tions the lessee may at his own option ringbark and destroy all trees on his area." "(3) The lessee shall not cut or remove any timber for sale or otherwise except as before provided." Con- dition 10 provided that the Minister for Lands might charge the lessee any sum not exceeding £25 as a fine for breach of any condition which he did not think grave enough to warrant forfeiture. Condition 19 provided that any question of fine or forfeiture arising from a breach of the conditions might be referred by the Minister for Lands to the Local Land Board, whose decision should be final unless appealed from in the manner prescribed by the Crown Lands Act 1899. Condition 23 provided that in the event of failure to comply with any of the conditions, provisions or covenants of the lease, the lease and improvements should be liable to forfeiture without compensation.

A rule nisi for a prohibition against further proceeding upon the conviction was made absolute by the Supreme Court: Ex parte Phillips 1, on the grounds that the information disclosed no offence, inasmuch as the penal provisions of sec. 93 of the Act of 1884 did not apply to improvement leases, and there was nothing in the information to negative the possibility of the acts alleged being justified by the conditions of the lease held by the respondent.

From this decision the present appeal was brought by special leave.

Pike (Pickburn with him), for the appellant. The Act 58 Vict. No. 18, under sec. 26 of which the improvement lease is granted, is by sec. 1 (c) to be read with and as part of the Act of 1884 (48 Vict. No. 18), and the intervening Acts. The Acts must, therefore, be construed as one, and the later should if possible be read in such a way as not to be inconsistent with the earlier. The fact that sec. 26 of the Act of 1895 gives the

1(1908) 8 S.R. (N.S.W.), 52. 7 CLR 4

Governor power to impose conditions on the lessee does not

necessarily take such leases out of the operation of sec. 93 of the Act of 1884. All leases under the Crown Lands Acts are subject PHILLIPS.

to conditions all provisions as to leases subsequent to 1884 should be read subject to the limitation imposed by see. 93. If the Governor inserts a condition giving power to ringbark inconsistent with sec. 93, he has exceeded his power and the condition has no effect; the lessee has still to obtain permission. But it is not necessary to decide that in this case, for the lease does not purport to exclude the provisions of sec. 93. The fact that two penalties are imposed is not an objection to the pro- visions of sec. 93 operating upon the lease. One of the conditions of sec. 26 is to suppress rabbits, and that is also provided under sec. 49 of the Pastures Protection Act, No. 111 of 1902.

[GRIFFITH C.J.-But that is different from the case of one Act saying that a man may do a thing and another saying that he may not. There are two different duties here and two different penalties. There is a great difference between cumulative and inconsistent provisions.]

The mere fact that the same subject is dealt with by the lease is not enough to take the case out of the Statute. Clause 2 of the lease is not an improvement condition. It does not compel the lessee to touch the timber or even to spend any money on the area. Even if sec. 26 is construed as giving the Governor power to override sec. 93, this lease does not go SO far. It does not carry the matter any further than the Act itself. [He referred to 48 Vict. No. 18, secs. 2, 88, 89, 90, 92, 93, 94, 95 53 Vict. No. 21, secs. 35, 37; 58 Vict. No. 18, sec. 25 Regulation 324; Form 88.]

[ISAACS J. referred to Garnett v. Bradley 1.] Canaway and Holman, for the respondent. The Court below held that as the lease dealt with the whole of the timber in the leasehold area, and imposed conditions as to preservation and destruction with respect to the whole, the lease was taken out of the operation of sec. 93 of the Act of 1884. So far as the lease gives the lessee power to ringbark, if that is within the power of the Governor, the lease must be outside the

13 App. Cas., 944. 7 CLR 5

sec. 93. As to the trees which he was bound to preserve, clearly he could not get permission to ringbark under sec. 93, or the object of sec. 26 would be wholly defeated. Sec. 93 is, therefore, inapplicable to that extent, and it would be a strange construction to make the lessee liable to the penalties of that section, without giving him the benefit of its enabling pro- visions. The second part of sec. 93 can only apply to such trees as the Board could give permission to destroy. The lessee of this improvement lease, in view of the conditions contained in it, is not a lessee within the meaning of sec. 93. Sec. 26 of the Act of 1895 substitutes a new scheme, totally inconsistent with that of the Act of 1884. Its object is the improvement of the land leased, by the destruction of timber, clearing of the land, and SO on, and that is provided for in the lease subject to the preserva- tion of trees necessary for the occupation of the land, or valuable for other purposes. Conditions imposed in the exercise of a statutory power have the effect of a Statute, if within the limits of the power. If both sec. 93 and the lease conditions operate upon the lessee he is liable to be doubly punished for the same offence. Moreover, under some leases the lessee might be bound to destroy timber which, in the opinion of the Governor, was injuring the land, but if the permission of the Land Board is withheld, he is liable to a penalty, whatever he does. Though the Acts are to be read together, the later Act must, if repugnant to the earlier, operate as a repeal to the extent of the repugnancy, and if the later Act confers a power which may be exercised inconsistently with the provisions of the earlier Act, then SO far as that power is SO exercised the earlier Act does not apply. The new provision is substituted for the old in the case of particular leases. [They referred to Maxwell on Interpretation of Statutes, 4th ed., p. 280; Reg. v. Youle (Youle v. Mappin) 1; Michell v. Brown 2; Mitchell v. Scales 3; Pilkington v. Cooke 4; Wrightup V. Greenacre (5); In re Williams; Jones v. Williams 6 Surrey Commercial Dock Co. v. Bermondsey Corporation 7.]

16 H. &N., 753; 30 L.J.M.C., 21 El. &E., 267 28 L.J.M.C., 35 C.L.R., 405. 416 M. &W., 615. 636 Ch. D., 573, at pp. 576, 577. 7(1904) 1 Q. B., 474. 7 CLR 6

Pike, in reply, referred to 48 Vict. No. 18, secs. 20, 139.

Cur. adv. vult.

GRIFFITH C.J. The Crown Lands Act 1884, as has been often pointed out, dealt with the whole subject of Crown lands in the Colony. It established a number of new tenures, includ- ing several forms of lease, and the conditions attached to these leases varied considerably, being in each case such as were prescribed by the Act. Sec. 93 contained a provision that every lessee of Crown lands desiring to ringbark trees upon his lease- hold land should obtain a permit to do SO from the Land Board, giving particulars of the boundaries and area of the land he proposed to ringbark, and provided further that the Land Board might in their discretion refuse or grant permission to ringbark accordingly. That was one of the many conditions of tenure provided by the Act, and it was attached to all leases, except, possibly, scrub leases, which were provided for in sec. 87, since repealed. This particular condition had a sanction in the latter part of the section, which provided that any person who should ringbark without the required permission should be liable to a penalty of not less than one shilling nor more than ten shillings for each tree ringbarked, and for a second or subsequent offence to a like penalty and the forfeiture of his lease.

The present respondent was prosecuted and convicted for ringbarking trees without the permission of the Local Land Board, he being the holder of what is called an improvement lease. An improvement lease was a new tenure introduced by the Crown Lands Act 1895 (58 Vict. No. 18), sec. 26, which provided that the Governor might under it grant leases of Crown lands which by reason of inferior quality, heavy timber, scrub, noxious animals, undergrowth, or other cause, were not suitable for settlement until improved, and could only be rendered suitable by the expenditure of large sums in improvement. In a case of that sort the main purpose of the lease would be not the preser- vation of the timber, provided for by sec. 93 of the Act of 1884, but the destruction of timber, and therefore, there might easily be an inconsistency in a particular case between the provisions of

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the two sections, or at any rate an inconsistency between the H. general requirement of the protection of timber and the purpose of the new form of lease, which was the destruction of timber. The Act 58 Vict. No. 18 was by sec. 1 to be read with the Crown Lands Act of 1884 and the intermediate Acts, and to "form part of the said Acts and each and every of them, to the extent to which and SO far as the provisions of any of the said Acts are unrepealed." The effect of that provision is this: SO far as possible the Acts are to be read together and as forming one document, and SO far as there is anything in a later Act incon- sistent with the provisions of the earlier Acts the later Act must be read as a proviso or exception to the former, if possible, but if the provisions are quite inconsistent the later must necessarily operate as a repeal of the earlier. As I pointed out in the case of Mitchell v. Scales 1, a law may be repealed by necessary implication. I there said I think that the cases of Michell V. Brown 2 Youle v. Mappin 3; and Fortescue v. Vestry of St. Matthew, Bethnal Green 4, establish this proposition, that when by a Statute the elements of an offence are re-stated, and a different punishment is indicated for it, that is a repeal by implication of the old law." That proposition is only an instance of a more general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.

In the Act of 1895 the legislature made special provision with regard to improvement leases, and provided in sub-sec. iv. of sec.

15 C.L.R., 405, at p. 412. 21 El. &E., 267 ; 28 L.J.M.C., 53. 330 L.J.M.C., 234, at p. 237. 4(1891) 2 Q.B., 170. 7 CLR 8

OF A. 26, that "the lease may contain such covenants and provisions as

to the Governor may seem expedient according to the circum- stances of each case, and all such covenants and provisions shall be notified in the Gazette and in a local newspaper before the lease is offered for sale or tenders called for. The lease shall contain covenants and provisions for the improvement of the land leased and for the expenditure of money thereon, for the payment of rent, and for the determination of the lease upon any breach by the lessee of the covenants and provisions thereof." It was faintly suggested, but I do not think seriously argued, that any covenants or provisions which the Governor could direct to be inserted in a lease must necessarily be such as were consistent with the provisions of the Act of 1884. But in respect of the provisions against ringbarking, the Act of 1884 was altogether inconsistent with the object of the legislature in providing for the case of lands to be let upon improvement lease conditions, that is to say, lands which by reason of heavy timber or other cause are unfitted for settlement until improved. I think that sec. 26 must be read as authorizing the Governor to insert in any lease any directions he may think fit with respect to the preservation or destruction of timber, including ringbarking, and the pro- visions SO inserted become the law quoad that lease, just as much as if they had been expressly enumerated in the Act itself. If the provisions of the lease having that effect are found to be inconsistent with the provisions of the earlier Acts, the result is that the lease must be read as an exception from the earlier Acts as to that particular piece of land. There can be no doubt that that was the intention of the legislature. On the other hand, the lease may contain nothing inconsistent with the Act of 1884. If so, that Act operates upon it to its fullest extent. Or it may operate inconsistently with the lease only in some one or more particulars. If so, effect can be given to it accordingly. In each case the question is what are the obligations of the lessee under the particular improvement lease, and in the present case the question is whether the obligations contained in the lease are consistent with the obligations that would be imposed by sec. 93 of the Act of 1884 if it were applicable.

The lease was granted in pursuance of a notification in the

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Gazette setting out the conditions. The second condition was that " the lessee shall carefully preserve clumps of timber for shade purposes of not less than 60 acres in extent at suitable intervals on the area the total area of such clumps to be not less than 685 acres and shall also carefully preserve all trees of four inches or over in diameter measured at three feet from the ground which are useful or likely to be useful for fencing or building purposes or for railway sleepers subject to the provision that the lessee may cut and use any timber for fencing or other improvements within the leased area. Subject to the above exceptions the lessee may at his own option ringbark and destroy all trees on the area." This lease therefore made quite a different provision from that contained in sec. 93 of the Act of 1884. It required the lessee to preserve certain trees according to their quality-which is a matter of opinion in many cases-and to the likelihood of their being useful for certain purposes, and with that exception authorized him to ringbark the rest of the trees as he pleased. Under that lease, if he had gone to the Local Land Board and asked for permission to ringbark trees which he was forbidden by the lease to ringbark, the Board would have been bound to refuse permission, but he was certainly not bound to ask the Board for permission to ringbark trees which he had permission to ringbark by the lease. The application to the Board, therefore, from either point of view would have been futile. That alone seems to me to show that the terms of this lease were quite inconsistent with the continuance of the obligations that would otherwise have been imposed upon the lessee by sec. 93. Again, the consequences of a breach were provided for under the Act of 1884. The consequence of ringbarking without lawful permission was a fine of not less than one shilling or more than ten shillings per tree, and for a second offence a similar fine and forfeiture of the lease. In the lease, however, it was provided, by condition 10 that the Minister for Lands should have the power to charge the lessee any sum not exceeding £25 as a fine for any breach of the con- ditions which he might consider not sufficiently grave to warrant forfeiture. It was also provided by condition 19 that any ques- tion of fine or forfeiture for breach of conditions might be

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referred by the Minister to the Local Land Board, whose decision

after investigation in open Court should be final unless appealed from in the prescribed manner. So that not only was the obliga- tion itself different, but the consequences of breach of the obligation were different. In the one case it was a fine imposed by justices, in the other a fine imposed by the Minister. In the one case there might be a forfeiture upon a second conviction, in the other case upon the first conviction at the option of the Minister. In the first case the tribunal appointed was the jus- tices in a Court of Petty Sessions (subject to review in the manner prescribed by law) who had to decide merely the question of fact whether permission had been granted. In the second case, under the lease, the question might be referred to the Land Board, from which an appeal would lie to the Land Appeal Court, and from that to the Supreme Court, and from that to other tribunals. It seems to me, therefore, that the scheme of the lease for the destruction of timber is entirely inconsistent with the condition as to ringbarking in sec. 93 of the Act of 1884, and, therefore, that by necessary implication this lease is excepted from the operation of that section.

For these reasons I am of opinion that the decision of the Supreme Court was right, and that the appeal should be dismissed.

BARTON J. Before coming to the conclusion that there is a repeal by implication "The Court must," to use the words of Hardcastle in his work on the Interpretation of Statutes (Craies on Statute Law, 4th ed., p. 303) be satisfied that the two enact- ments are SO inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication." If, therefore, there is fairly open on the words of the later Act, a construction by adopting which the earlier Act may be saved from repeal, that construction is to be adopted. And as has been already pointed out by the learned Chief Justice, it is easy in this case to construe the second Act not as working a repeal, but as enabling the Governor to make exceptions from the obligations

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imposed by the earlier Act, by means of terms and conditions im- posed upon the lessee. If the conditions are irreconcilable with the prior enactment, then to that extent the two cannot stand together. But as this lease is an exercise of a power, then to the extent of its exercise the later Act may be read as authorizing an exception to the earlier Act. That seems to me the reason of the matter, and seems also to be in accordance with the recognized canons of construction.

For these reasons I agree with the learned Chief Justice in the judgment which he has just delivered.

O'CONNOR J. read the following judgment The respondent was summarily convicted upon an information under sec. 93 of the Crown Lands Act 1884 charging that "he, being the holder of a certain improvement lease, did, without obtaining permission to do SO from the Local Land Board, unlawfully cause to be ringbarked on the said improvement lease certain trees, &., contrary to the Act," &. It was clear on the evidence that the respondent had ringbarked the trees, and it was not denied that he had done SO without obtaining permission from the Local Land Board. His defence was that the terms and conditions of his holding under sec. 26 of the Crown Lands Act 1895 removed his lease from the operation of sec. 93. The Supreme Court upheld that defence, and this Court is called upon to decide whether they were right in SO doing.

The Act of 1884 provided for several kinds of leases. In those for pastoral purposes, involving in most cases the improvement of the grazing capabilities of the land, ringbarking came directly under the control of the Local Land Boards by the operation of sec. 93. In scrub leases under secs. 86, 87, and 88, the only other kind of lease in which ringbarking might be necessary for the profitable occupation of the land, the Government were em- powered to insert conditions defined by regulations as to clearing and destruction of scrub. Ringbarking might no doubt be dealt with in these conditions. But the conditions were to be carried out at the time and in the manner prescribed by the Local Land Board. Thus in those cases also ringbarking came ultimately under the control of the Local Land Boards.

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It appeared therefore from the various provisions that the policy of the Act of 1884 was to place all ringbarking on leased lands of the Crown under the control of the Local Land Boards. In pursuance of this policy sec. 93, a modification of the Crown Lands Ringbarking Act 1881, was enacted, and its main purpose is, no doubt, that set out in the first portion, which directs any lessee who wishes to ringbark trees on his lease to make applica- tion in the specified form to the Local Land Board for permission. The Board may inquire into the application, and may refuse it or grant it with or without conditions. It is to enforce obedience to that direction, and thus make the control of the Land Board effective, that the offence with which the respondent is now charged was created.

Eleven years after the enactment of that Statute a new kind of lease, described as an improvement lease, was authorized by sec. 26 of the Act of 1895. The opening words of the section at once define its nature and differentiate it from leases under the earlier Acts. "The Governor may" (I leave out the words added in 1903), "under this section, grant leases of Crown lands, which, by reason of inferior quality, heavy timber, scrub, noxious animals, undergrowth, marshes, swamps, or other similar cause, are not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the im- provement thereof." Then follow provisions of which sub-sec. (iv.) is the only one material:- The lease may contain such covenants and provisions as to the Governor may seem expedient according to the circunstances in each case, and all such coven- ants and provisions shall be notified in the Gazette and in a local newspaper before the lease is offered for sale or tenders called for. The lease shall contain covenants and provisions for the improvement of the land leased and for the expenditure of money thereon, for the payment of rent, and for the determina- tion of the lease upon any breach by the lessee of the covenants and provisions thereof."

It was not, I think, seriously disputed that the sub-section conferred ample power on the Government to insert in the lease conditions dealing completely with the ringbarking of the area. Indeed, the conditions of the lease itself, all of which are in my

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opinion valid under the Act, very well illustrate the scope of the sub-section. By the second condition the lessee covenants to pre- serve certain clumps of timber for shade purposes and also to carefully preserve" all trees of a certain measurement " which are useful or likely to be useful for fencing or building purposes or for railway sleepers." The last words of the condition are as follow :- Subject to the above exceptions the lessee may at his own option ringbark and destroy all trees on the area." The 23rd condition renders the lease liable to forfeiture for failure on the part of the lessee to comply with any of the conditions, pro- visions, or covenants, and condition 10 empowers the Minister for Lands 'to charge the lessee any sum not exceeding £25 as a fine for any breach of the foregoing conditions which he may not consider sufficiently grave to warrant forfeiture." By the 19th condition, following the terms of sec. 20 of the Act of 1884, any question of fine or forfeiture arising from a breach of the con- ditions may be referred by the Minister to the Local Land Board, and the decision of the Board "after due investigation in open Court shall be final unless appealed from in the manner pre- scribed in the Crown Lands Act 1889."

Sec. 26 may be taken to embody potentially all these provisions, and when the conditions of the lease deal with ringbarking, the subject matter of ringbarking is taken out of the Local Land Board's control and arranged by contract between the parties. The lessee thus knows before he undertakes the liabilities of the lease exactly what his rights of ringbarking will be instead of being obliged, as he is in regard to ordinary pastoral holdings, to bind himself to a lease without any certainty as to the con- ditions or limitations which the Local Land Board may think fit to impose in ringbarking on the area.

The first section of the Act of 1895 directs that the Act shall be read with and form part of the other Acts then in force relating to Crown lands, including the Act of 1884, and it is the duty of the Court to read the Acts SO that each section shall as far as possible have its full effect. The word " lease " in sec. 93 is undoubtedly wide enough to include any lease of Crown lands, but it is clear that it cannot be applied to an improvement lease such as this without manifest contradiction and inconsistency.

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Sec. 93 cannot be applied except in cases where the lessee is free

to ask and the Local Land Board to grant permission to ringbark with or without conditions. But the Local Land Board could give no permission to the improvement lessee to ringbark in contravention of the conditions of his lease, and if they did, the permission would be no justification for a breach by the lessee of those conditions. It would seem to follow that the improvement lessee cannot be liable for ringbarking without the permission which the Local Land Board have no power to grant. It is clear, therefore, that the provisions of sec. 93 are not applicable to an improvement lease containing these conditions.

The conflict between the two sections is one of the kind to which Sir George Jessel M.R., refers in Taylor v. Oldham Cor- poration 1. Where there is a general provision which, if applied in its entirety, would neutralize a special provision deal- ing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general pro- vision, in SO far as it is inconsistent with the special provision, must be deemed not to apply. It has been contended that under this rule all improvement leases are excepted from the operation of sec. 93. If sec. 26 of the Act of 1895 had made it imperative in the Government to insert conditions in all improvement leases similar to those in the lease under consideration, there would be strong ground for contending that the new method of dealing with the whole subject of ringbarking in the new tenure, providing a new control under a new scheme complete in itself, with its conditions, its tribunal for determining questions as to breach and its fines and penalties for ensuring compliance, was intended to replace the old, and that there was an implied repeal of sec. 93 in regard to all improvement leases on the principle laid down in Michell v. Brown 2.

But that is not the case here. The form and nature of the conditions depend entirely upon the discretion of the Government. They may exercise that discretion, as in this case, in such a way as to render the provisions of sec. 93 entirely inapplicable. On the other hand, they may SO exercise their discretion as to grant an improvement lease on terms which are entirely consistent with

14 Ch. D., 395, at p. 410. 21 El. &E., 267. 7 CLR 15

the full operation of that protection of Crown lands from unauthorized ringbarking which it is the object of sec. 93 to ensure. In other words, the form of tenure created by sec. 26 of the Act of 1895 is not necessarily inconsistent with the applica- tion of sec. 93 of the Act of 1884. But power is conferred upon the Government to issue leases under that tenure containing conditions which might become impossible of fulfilment if sec. 93 is applicable.

Pilkington v. Cooke (1), cited by Mr. Holman, is exactly in point. The question in that case was whether the Statute 29 Eliz. c. 4 (against extortion by sheriffs) was wholly repealed by 1 Vict. c. 55, which gave the Judges certain powers fixing sheriffs' fees, or whether it was repealed only to the extent of being inapplicable SO far as the Judge's order in any particular case might extend. Parke B. said (2) :- The question then is, whether the enactment of the Statute of Victoria is not in effect the same thing as a positive contingent exemption from the operation of the Statute of Elizabeth, which still continues in force. We think that it is, and that the operation of the Statute of Victoria is to constitute an exemption from the Statute in those cases, in the same way as if it had been expressly enacted that such cases should be exempt from the operation of the Statute of Elizabeth."

In my opinion, therefore, sec. 26 of the Act of 1895 must be read as a proviso to sec. 93 of the Act of 1884, but in such a way as to make the latter inapplicable to improvement leases only in those cases in which the conditions of the lease have dealt with ringbarking in the area in such a way as to be inconsistent with any power in the Local Land Board to grant permission to the lessee to ringbark in the area. For the reasons I have given the conditions of the lease now under consideration are, in my opinion, such as to be entirely inconsistent with the exercise of any power by the Local Land Board over ringbarking on the area.

It follows that the lease does not come within sec. 93, and that the respondent was wrongly convicted. In my opinion, therefore, the Supreme Court was right in setting aside the conviction, and this appeal must be dismissed.

I (1) 16 M. &W., 615.

(2) 16 M. &W., 615, at p. 627.

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ISAACS J. read the following judgment The respondent was not prosecuted for ringbarking trees which he had permission by his lease to ringbark. If he had been, Pilkington v. Cooke 1 would have been a direct answer, because it decided that an act authorized under a subsequent Statute cannot be treated as unlawful by reason of an earlier enactment. He was proceeded against in respect of the trees, which the lease not only did not permit him to destroy, but positively provided he should not destroy. The decision in Pilkington v. Cooke (1) does not extend to that branch of the case, because there the defendant was not charged with any excess of the later authority. Here there has been such excess. But the fundamental principle underlying both branches is the

The latest expression of the will of Parliament must always prevail. An express repeal of or exemption from an earlier enactment is not more effectual than if it were created by impli- cation. The only difference is in ascertaining the fact and extent of the implied exemption or repeal. It is clear in this case that the power of the Governor to insert in the lease such provisions as to him may seem expedient enables him to authorize a lessee to ringbark timber and SO to make that conduct lawful, notwithstanding an earlier prohibition. In Powell v. Apollo Candle Co. 2 the Judicial Committee of the Privy Council said that Customs duties, which under the authority of an Act of the New South Wales legislature were by Order in Council directed to be levied, were really levied by the authority of the Act under which the Order was issued. So here the provisions inserted by the Governor under the authority of the Act permitting certain trees to be ringbarked have parliamentary sanction, and are as effectual as if directly enacted. The right of ringbarking those trees under the later Act, and the unlawfulness of doing SO if sec. 93 is to apply are as Fry J. says in dealing with a case of implied repeal, physically inconsistent": Yarmouth Corporation V. Simmons 3. The exemption when the Act and lease are read together is SO far express.

116 M. &W., 615. 210 App. Cas., 282, at p. 291. 310 Ch. D., 518, at p. 527. 7 CLR 17

But the other branch is not SO easily determined, namely, how far the provisions of the lease exempt the case from the opera- tion of sec. 93. As to this the exemption is not express, and the implication depends entirely upon construction. I repeat what I said in Mitchell v. Scales 1 that every Act "which is relied upon as a repeal" (and I add exemption) " must be considered to see whether its necessary implication is to abrogate the former law." The Court must determine whether upon a fair construction of the later Statute the legislature intended to supersede either wholly or pro tanto the former enactment.

Here the Act of 1895 enables the Governor to cover to any extent he pleases, in relation to improvement leases, the whole or any part of the subject matter of ringbarking dealt with in sec. 93 of the Act of 1884, and to prescribe any covenants or pro- visions he considers expedient. These may not unnaturally include a specific penalty for breach, more particularly for dis- regarding the limits of a permission to do what would otherwise be unlawful, and therefore, to the extent to which the field of the lessee's responsibility is covered by the authority of the later enactment, the former, though not repealed, is on an exactly similar principle inapplicable. The provisions of the two enact- ments cannot in such case stand together and operate at the same time and for the same purpose, but with varying effect, upon the same set of circumstances.

To illustrate what I mean :-If an improvement lease says nothing whatever about ringbarking, there is nothing to affect the operation of the Act of 1884 upon facts that come within sec. 93.

If the lease gives unlimited permission to ringbark, sec. 93 cannot apply to penalize what Parliament has by later legislation sanctioned. If the lease absolutely prohibits ringbarking but makes no provision as to penalty, sec. 93 can well operate with- out collision. Although the Land Board could not in such a case lawfully give permission to ringbark, that is no more than if sec. 93 contained a proviso prohibiting permission where the Governor forbade ringbarking. The lessee would know that per- mission would be unlawful, and therefore he could not lawfully

15 C.L.R., 405, at p. 417. 7 CLR 18

ringbark. A mere prohibition in a lease without more, leaves

the general law to otherwise operate. But if the lease prohibits, GOODWIN

either in toto or partially, the ringbarking of trees and also pro- PHILLIPS.

ceeds to declare its own penalty for breach, thereby specifying the limits of responsibility for contravention, and states the tribunal to determine as to liability and as to amount of the penalty, it appears to me to be more than a cumulative or auxiliary provision. It could not be intended by Parliament that a lessee should suffer the two penalties for the same act. It is substitutory, and takes the place of the earlier provision. That is precisely the present case. I therefore think the judg- ment of the Full Court was correct and should be affirmed.

Appeal dismissed with costs. Solicitor, for appellant, The Crown Solicitor for New South Wales.

Solicitors, for respondent, Brown &Beeby.

[HIGH COURT OF AUSTRALIA.] CHARLES GRIERSON

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF 1908. MELBOURNE,

Licensed premises-Presence thereon "in contravention of" provisions of the Act- Oct. 9, 12,

Purpose of presence-Licensing Act 1906 (Vict.) (No. 2068), sec. 76. Griffith C.J.,

The words "in contravention of the provisions of this Act" in sec. 76 (2) of the Licensing Act 1906, mean " in prosecution of a purpose inconsistent with observance of the provisions of this Act."