Mackinnon v Attorney-General (NSW)

The appeal concerned the rights of the appellant, Mr. Mackinnon, as the holder of a preferential occupation licence over land previously held under an improvement lease. This lease had been cancelled under the Improvement Leases Cancellation Act 1906. The Attorney-General for New South Wales sought declarations that the Crown was entitled to grant settlement leases over this land and that the appellant's occupation licence would be determined upon the issue of such leases. The Supreme Court of New South Wales, in Equity, found in favour of the Attorney-General, and Mr. Mackinnon appealed to the High Court of Australia.

The central legal issue before the High Court was whether the preferential occupation licence granted to the appellant under the Improvement Leases Cancellation Act 1906 was determinable by the Governor granting a settlement lease of the land, or if the appellant held a perpetual tenure until further legislation was enacted. This required the Court to interpret the scope of the Improvement Leases Cancellation Act 1906 in conjunction with the broader Crown Lands Acts.

The High Court, affirming the decision of the Supreme Court, held that the preferential occupation licence was not a new tenure but a recognised form of occupation licence under the Crown Lands Acts. Consequently, it was subject to the same incidents and conditions as other occupation licences. The Court reasoned that the Act did not curtail the Governor's general power to alienate Crown lands. The provisions for reserving the land from sale and lease generally, and the subsequent revocation of these reservations, indicated that the land remained subject to the ordinary powers of the Crown to grant new leases, such as settlement leases. The Court applied the principles established in *Minister for Lands v. The Bank of New South Wales*, finding that the holder of a preferential occupation licence, like other occupation licensees, loses their right when the land is opened for selection and subsequently selected.

The appeal was dismissed.