Minister for Lands (NSW) and Perry v Bank of New South Wales

[1909] HCA 54

322HIGH COURT

[1909.

H. C. OF A.

by-law with costa.

Respondents to pay

1909.  costs o f the appeal.

Co-

»

operative

Solicitors, for tiie appellants, Malleson, Stewart, Stawell &

Brick Co. F roprietary

Nankivell.

Ltd. Mavor &c. of

Solicitors, for the respondents, Derham c5 Derham.

B . L

THE City of H awthorm.

Con^A ppI

Machnnon

v

AttontĝGeneral

[HIGH COURT OF AUSTRALIA.]

THE MINISTER FOR LANDS (N E W )

A p p e l l a n t s ;

SOUTH WALES) AND PERRY . I

AND

THE BANK OF NEW SOUTH WALES

R espo n d en ts .

THE MINISTER FOR LANDS (NEW )

A ppella n ts ;

SOUTH WALES) AND LAKE .

J

THE BANK OF NEW SOUTH WALES R espo n d en ts .

THE MINISTER FOR LANDS (NEW

SOUTH WALES), NORMAN AND A ppella n ts ;

O T H E R S .....................................

H. C. of a .

1909.SCOTT AND OTHERS

R e spo n d e n t s .

c o n s o l id a t e d

a p p e a l s .

Sydney ,

Aug. 13. 1C,

ON APPEAL FROM THE SUPREME COURT OF

25.NEW SOUTH WALES.

Griffith C.J.

Barton, Improvement Leases Cancellation Act 19('6 (iV.S. IF.) (No. 42 of 1906), sec. 3 —

IsaacsJJ.

Reserves Declaratory Act 1895 (N.S. IF.) (58 Viet. No. 16), sec. 6—Cancellation

9 C.L.R.] OF AUSTRALIA.

323

and forftiture. o f improvement least— Reservation from sale and lease—Revoca­

H. C. OF A

tion of reservation—Suspension for sixty days—Operation o f existing Statutes

1909.

rehitina to the same subject matter—Construction o f Statutes.

Minister of

L ands

The Improvement Leases Cancellation Act 1906, whicli was passed to provide for the cancellation and forfeiture of certain improvement leases and other

(N.S.W.)

r.

'

purposes, one of whicli was “ to amend the Crown Lands Acts,” provided

Bank of

N ew

South

(sec. 2) that upon the notification in the Gazette of a certificate by a Royal

W ales.

Commission appointed by the Act that any improvement lease then in force

had been granted under circumstances evidencing improper acts or serious

M iS tS T F .R OF

irregularity and that the lease should be dealt with under the Act the lease

L ands

(N.S.W.)

should become cancelled and forfeited. By sec. .1 it was provided that upon

r.

such cancellation and forfeiture the lessee should become the holder of a

SCOT'I'.

preferential occupation licence of the land comprised in the lease, and the land should thereupon become “ reserved from sale and lease generally” until such reservation should be revoked by notification in the Gazette, and that certain other rights should be given to the lessee. Preferential occupation licence and improvement lease were not defined in tlie Act, those tenures having been constituted by earlier Crown Land Acts. The Reserves Declaratory Act 1895, sec. 6, provided that for the future a revocation of a reservation from lease should not take effect until after the expiration of sixty days from the notification of revocation. A number of leases were dealt with by the Commission and many of them were cancelled and forfeited.

Held, that the provisions of the Improvement Leases Cancellation Act with reference to tenures and reservations should be read with the provisions of the existing Crown Lands Acts and Acts dealing with the reservation of Crown Lands, and that on the revocation of a reserve which came into existence automatically under sec. .3, the provisions of sec. 6 of the Reserves Declaratory Act 1895 applied, and the revocation did not take effect until the expiration of 60 days from the notification.

Decision of the Supreme Court : Bank of Hem South Wales v. Perry, (1909) 9 S.R. (N.S.W.), 158, affirmed.

A ppea ls from decisions of the Supreme Court of New South

Wales on special cases stated by the Land Appeal Court.

These appeals were consolidated by order of Griifiih C.J., the ■same questions being involved in the tliree cases. The respon­ dents were holders of improvement leases which had been the subject of inquiry before Otven J. sitting as a Royal Commis­ sioner under the Impi^ovement Leases Cancellation Act 1906. The Royal Commissioner in each case certified that the leases had been granted under circumstances evidencing improper acts or serious irregularity within the meaning of sec. 2 of that Act, and as a consequence of such certificate the le.ssees became

324 HIGH COURT

[1909.

H.C. OF A.liolders of preferential occupation licences of the lands conipri.sed

1909.in the leases by virtue of sec. 3 of the Act, and the lands became reserved from sale and lease generally under that section until

M inister

of

Lands

(N.S.W.)

the reservation should be revoked by notitication in the Gazette.

V.I t will be sufficient for the purpose of this report to state the

B ank

of

N ew South

facts in the first mentioned appeal.

In tha t case the date of the

W ai.es.

Royal Commissioner’s certificate was 27tli February 1907. At

M inuster Lands of that time the Bank of New South Wales was the holder of the

(N.S.W.)

lease. On lo th July there was published in the Government

V.

Scott.Gazette a notice that the Governor in pursuance of sec. 3 of the Act revoked the reservation as to a stated portion of the land,s comprised in the original improvement lease, and on the same day a further notice was published in the Gazette that in pursuance of the provisions of the Crown Lands Acts a certain portion of the holding was set apart for original settlement lea.ses, to be available on and after 13tli August 1908. On the date last mentioned the appellant Perry applied for a settlement lease of one portion of the lands in question, and on 12th October the application was confirmed. At the hearing of the application before the local Land Board objection was taken by the respon­ dent Bank of New South Wales that the lands were not avail­ able on the date on which they were gazetted as available, as they were then covered by a reserve from sale and lease which continued in force until the expiration of 60 days from the notification of reservation. The Bank appealed to the Land Appeal Court, which dismissed the appeal, but, at the request of the Bank, submitted a case for the Supreme Court on the questions: (1) whether the revocation of the reserve from sale and lease expre,ssed in the Gazette notification of 15th July 1908 had taken effect before 13th August 1908, and (2) whether on 13th Augu.st 1908 the lands in question were available for settle­ ment lease. The Supreme Court answered both que,stions in the negative and allowed the appeal of the Bank with costs : Bank of Neiv South Wales v. Perry (1). The other cases ran a similar course, and the Supreme Court, following its decision in the first case, answered the questions in the negative. From the.se de­ cisions the present appeals wmre brought by special leave.

(I) (1909) 9 S.R. (N.S.W.), 158.

9 C.L.U.] OF AUSTRALIA.

325

H. C. OF A.

Ralston K.C. and H anhiiry Davies, for the appellants.

The

1909.

revocation of the reservation was not under the general law but

under the special Act, and took effect immediately. I t was not

Minister of

Lands

subject to the limitations attaching to revocation under the (N.S.W.)

Bank of V.

Reserves Declaratory Act 1895, sec. 6. Although one of the

express purposes of the Improvement Leases Cancellation Act

N ew South

W ales.

190(j was “ to amend tlie Crown Lands Acts,” it was not an

amending Act in the ordinary sense. Even if it is to be re­

Minister of

Lands

garded as an amending Act, it is not to be read with or as part of

(N.S.W.)

V.

the amended Acts if the contrary intention is shown in i t : In ter­

Scott.

pretation Act (No. 4 of 1897), sec. 12. A contrary intention is shown. The Act of 1906 really takes the impi’ovement leases to wliich it applies out of the operation of the existing Acts, deals with them on a new basis, and provides special machinery for that purpose. The new machinery is substituted for the old. [They referred to 48 Viet. No. 18, sec. 81, sub-sec. 4 ; 58 Viet. No. 18, sec. 4]. The Statute itself cancels the leases and grants

the licence.

Ordinarily that is granted by the Governor. I t is

now made automatic. Again, a revocation of an ordinary reserve from sale or lease under sec. 6 of the Reserves Declaratory Act 1895 is by notification in Gazette by the Minister. Here the Governor makes the revocation.

[B arton J.— That only shows the extent to which the earlier Acts are amended.]

The Act itself contains all the machinery neces.sary to carry through all cases to which it applies. The latter part of sec. 3 shows an intention to supersede entirely the provision for 60 days’ suspension in the Reserves Declaratory Act. The former lessee may make an application within 60 days for an improvement lease, and a special tribunal deals with the application. [They referred to 48 Viet. No. 18, sec. 102; 53 Viet. No. 21, sec. 39.] Whatever object was secured by the 60 days’ suspension under the earlier Act is now secured by the provisions in the latter part of sec. 3. The new Act is a special Act dealing with peculiar circum­ stances and for a time suspending the operation of the Crown Lands Acts with respect to certain particular lioldings. The tenure of a successful applicant under sec. 3 would be a tenure under the new Act, and his title would depend upon that Act.

326 HIGH COURT

[1909.

H. C. OF A.If tlie respoiulents’ contention i.s correct, he could not get a title ] 909.until the expiration of 60 days after a revocation of the reserve.

M inister of

The reserve was intended to preserve the holding for the licensee

Lands until the inquiry should be held.

When the period provided for

(N.S.W.)

Bank of V.has elapsed, the earlier Acts come again into operation. The

N ew SouTir

Governor would have no power to revoke the reserve except

W alks.

under this Act. The Reserves Declaratory Act, though general

M inister of in its terms, should not be read as extending to cases specially

Lands (N.S.W.)

dealt with by subsequent Acts.

V.

Scott.

Dr. Cullen K.C. ( Whitfeld with him), for the respondents.

In

the Act of 1906 the legislature dealt with tenures and used termso for the meaning of which it is necessary to I’efer to the existing Crown Lands and other Acts dealing with the same subject. Except to the extent to which the new Act expressly alters them, the incidents of those tenures are as they were before the Act was passed. So far as the special circumstances needed special treatment, the legislature gave it. Preferential occupation licence is a recognized form of tenure intended to keep the land comprised in it revenue producing after the expiration of the term of certain classes of holding. The Act extended the privilege of such a tenure to a new class of holder, i.e. improve­ ment lessees who were dealt with under sec. 2. I t was preferential in the same sense as in the case of pastoral lessees under sec. 4 of 58 Viet. No. 18. But the right to compensation for improvements conferred by the latter section was taken away in this particular case, and for it was substituted tenant right in improvements under sec. 51 of 58 Viet. No. 18 in cases where the special Board should think fit to grant it. [He referred to 48 Viet. No. 18, sec. 81, sub-sec. (4).] I t should be presumed that the incidents of the tenure, where not expressly altered, remain the same as under the earlier Acts. Reservation is not a new process. The fact that it is provided in this particular case by the new Act is not sufficient to make it a different thing from any other reserva­ tion under the amended Acta. I t is not the only case of an auto­

matic reservation; see 53 Viet. No. 21, sec. 32.

Under that section

the reservation may be revoked by the Governor. I t could not be contended that such a revocation is not subject to the suspen-

9 C.L.R.] OF AUSTRALIA.

327

sion prescribed by the Reserves Declaratory Act 1895, sec. 6.

H. C. OF A.

1909.

There is another instance of automatic reservation in sec. 46 of 53

Viet. No. 21. Tlie new Act merely grafts new incidents on the

M inister

of

Lands

old tenures. [He referred to

Sweeney v. Fitzhardirge (1)].

(N.S.W.)

V.

That is the natural inference from the use of the old terms. The

Bank of

latter part of sec. 3 is for a purpose altogether difierent from the

N ew South

Wales.

suspension of the effect of a revocation.

The 60 days date from

the cancellation, not from the revocation. Consequently until

Minister of

Lands

the expiration of 60 daj^s from the revocation the lands were not

(N.S.W.)

V.

available, and the applications in question here were invalid and

Scott.

could not be confirmed. [He referred to Minister for Lands V. Bolton (2); Minister of Lands v. Harrington (3); 53 Viet. No. 21, sec. 12].

Ralston K.C., in reply, referred to 58 Viet. No. 18, sec. 25.

Car. adv. vidt.

G r if f it h C.J. The question for determination in this case

August 25.

depends upon the construction of the Act No. 42 of 1906. The title, which is rather long and comprehensive, describes the Act as “ An Act to provide for the cancellation and forfeiture of certain improvement leases; for the disposal of the land included in such leases, and for the constitution of a board to deal with such land ; to amend the Crown Lands Acts ; and for purposes consequent thereon and incidental thereto.” The subject matter is primarily certain improvement lea.ses. Improvement lease is a tenure of Crown lands which was first set up by the Crown Lands Act 1895, 58 Viet. No. 18, sec. 26. The subject matter of improvement lea.ses is, as that section states, “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 improvement thereof.” The maximum area that may be granted is 32 square miles. Before the passing of the Act of 1906 it had been alleged, —as may be gathered from the provisions of the Act—that

(1) 4 C.L.R., 716.(.3) 20N.S.W. L.R.,253 ; (1899) A.C.

(2) 17 N.S.W. L.R., 389.

408.

328 HIGH COURT

ri909.

H.C. OF Acertain improvement leases liad been improperly obtained. No

1909.doubt these leases, if improperly obtained, might have been

M inister of I’evoked by the Crown by suit. But that would have been a very (N.S.W.)expensive proce.s.s, and the result would have been uncertain.

Lands

V.Under these circumstances a Royal Comrni.ssion consisting of

Bank of , . . . . .

”

N ew South Mr. Justice Owen had been appointed to inquire into the allegation.s, and the Act of 1906’ provided a summary way of M inister of dealing with the cases. [His Honor read sec. 2 and continued;]

(N.S.W.) That got rid of the leases. Then the Act proceeded to provide

Scott lessees, who might be either innocent or guilty,

and, if guilty, the degree of culpability might vary.

Accordingly

Griffith C.J.

the Act first of all made provi.sion for a temporary tenure pending the inquiry. I t did not turn out the lessee at once. See. 3 pro­ vided tha t on cancellation or forfeiture of a lease the lessee should become the holder of a preferential occupation licence, and the land comprised in it should tliereupon “become reserved from sale or lease generally ” until the reservation should be revoked in whole or in part by notification by the Governor in the Gazette. I pause for a moment to remark tha t the terms used in that section are quite unintelligible without reference to some other Acts. I will refer to the Acts directly. The same section also contained a provision that within 60 days from the cancellation the lessee might make a fresh application for an improvement lease or for another kind of lease that was open to holders under pre­ ferential occupation licence under another Act. Sec. 4 provided a special mode of dealing with the merits of these cases by a Board of three persons appointed by the Governor, one of whom was to be a Judge of the Supreme Court, who w'ere to inquire and finally determine whether any part of the land might be leased under improvement lease or the other kind of tenure .specified; secondly, if so, for what terms—the minimum being 28 years —and under what conditions, rent, &c.; thirdly, whether, having regard to the circumstances surrounding the granting of the can­ celled lease and the equities of the case, the former lessee should have a preferential right to an improvement lease or whether such lease should be by auction or tender; fourthly, whether and to what extent the former lessee should be entitled to a preferential right, as defined in sec. 51 of the Crown Lands Act 1895, in im-

329

9 C.L.R.]

OF AUSTRALIA.

provements effected during the currency of the cancelled lease; and

H. C. OF A.

1909.

fifthly, the amount of the preferential licence fee, that is, pending

the currency of the preferential occupation licence. I t is obvious

Minister ok

Lands

that the whole of these provisions were unintelligible in them­

(N.S.W.)

V.

selves, and that in order to understand them you must read the

Bank of

N ew W ales.South

provisions of the Crotvn Lands Acts of which this Act is described

in the title as an amendment. Now I go back to sec. 3. Two

Mini.ster of

consequences followed from the cancellation; first of all, the lessee

L ands

became entitled to a preferential occupation licence, and secondly,

(N.S.W.)

V.

the land became reserved from sale and lease generally until the

Scott.

reservation was revoked by the Governor. What is the meaning

Griffith C.J.

of giving the lessee a preferential occupation licence ? The tenure of occupation licence was recognized in the first instance by the Grcnun Lands Act 1884, sec. 81, which provided that under certain conditions certain persons, run-holders, should be entitled to an occupation licence of land resumed from their run if they applied for it. The rental was called a licence fee of £2 per 640 acres, to be paid at the beginning of the tenure, and was liable to be increased upon appraisement by the Land Board. Under sub-sec. 4 of that section, upon the granting of any lease or sale of any land under occupation licence, the licensee’s right of occupation ceased as to such portion, and he became entitled to a proportionate refund of the fee and reduction of future rent. That tenure was in fact a preferential occupation licence though not so described, because only certain persons, that is the run-holders, wmre entitled to get it. By sec. 33 of the Crown Lands Act 1889 another similar provision was made, and an occupation licence was granted to other persons upon the expira­ tion of their lease, not upon resumption of their holding as under the former Act. By sec. 43 another class of persons was declared entitled to an occupation licence, which was expressly called a preferential occupation licence. That was the first introduction of the term into the Crown Lands Acts. Then by the Crown Lands Act 1895, 58 Viet. No. 18, sec. 4, another class of persons obtained the privilege of obtaining a preferential occupation licence, and the holders of that particular kind had a tenant right in im­ provements in certain specified cases. They must have been improvements made with the consent of the Crown while the

VOL. IX.

330 HIGH COURT

[1909.

H.C. OF A.land was lield under pastoral lease or preferential occupation

1909.licence. Neither of these jirovisions applied, of course, to the

Mi .nister of case of an improvement lease. Now we understand the meaning

Lands

(N.S.W.)

of preferential occupation licence when the term is used in the

V.

B ank of

Act No. 42 of 1906, and the nature of the privileges conferred

N ew South

2>ri;md J'acie upon the former holder of the cancelled lease.

\V ALES.

I now pi'oceed to inquire into the meaning of the word “reserva­

M inister ok (N.S.W.)

Lands tion ” and the consequences of the provision that “ the land shall

. . . become reserved from sale and lease generally until such

V.

Scott.reservation is revoked,” &c. Again I refer to the older Acts.

Griffith C.J.By sec. 101 of the Crown Lands Act 1884 the Governor had pow'er to reserve land from sale. By sec. 102 it was provided that Crown lands temporarily reserved from sale under the Act should not be sold before the expiration of 60 days after the reservation should have been revoked. By sec. 39 of the Act of 1889 the Governor was empowered to reserve land from being sold or let on lease or licence, but land was not to be “ reserved or exempt from sale or lease generally ” unless expressly other­ wise declared. The same section provided that the reservation might be revoked by the Minister, and that the revocation should take effect in respect of any reserve from lease or licence from

the date of the notitication of it.

By sec. 32 of the Act of 1889

it was provided that in certain cases, where land was reserved from sale and from lease or licence under one notification for any public purpose, the Governor might by notification in the Gazette revoke or vary any such re.servation. The same reserva­ tion might in some cases be made by the Minister. Sec. 46 of the same Act provides for the automatic reservation of land in certain cases. Land acquired by the Governor for certain purposes specified was upon acquisition to “ be deemed to be reserved from sale and lease ” and might on revocation of the reserve “ be dealt with, in accordance with the Principal Act or this Act.” That is to say, that in certain cases land acquired by the Government fell automatically within these provisions of the general law. In 1895 the Reserves Declaratory Act, 58 Viet. No. 16, was passed. That Act by sec. 6 provided tha t “ after the commencement of this Act the revocation of any reservation from lease, or of any reservation from occupa-

331

0 C.L.R.]

OF AUSTRALIA.

tion licence, or of any reservation from lease and occupa­

H. C. OF A.

1909.

tion licence, shall not take effect until after the expiration of

sixty days from the day of tlie publication in the Gazette misisteeof

Lands

of the notice of revocation.” Now we know the meaning- of

(N.S.W.)

the expression in sec. 3 of the Act No. 42 of 1906, “ the land

V,

_

Bank ok

shall be ‘reserved from sale and lease’ irenerally until such reser- New South

®

"

W alks

vation is revoked in whole or in part,” &c. I t is clear that the

___1

tenant was to have all the rights of a holder of a preferential Minister of

L A N flS

occupation licence. Upon notice of cancellation or forfeiture

(N.S.W.)

V.

the reserv’ation was, as under sec. 46 of the Act of 1889, to

Scott.

be automatic, and the revocation, as under sec. 32 of that Act

Griffith C.J.

in similar cases, was to be by the Governor and not by the Minister. But I think it is clear that it was not intended to create by the Act of 1906 a new kind of reservation or revoca­ tion, but merely to adopt an old process or condition called a reservation and one of the old modes of revocation, and that in both respects the old law should apply except as altered by the

Act itself.

So far I have applied the ordinary principle of ,

construction. Then sec. 4 of the Act of 1906 states in what respect the old general law is to be altered, as applied to the persons with whom the Act is dealing. Sec. 2, sub-sec. (a), authorizes tenant right in improvements to be granted in certain cases. The cases in which that right existed under the Croton iMncls Act 1896 did not cover them ; therefore that additional privilege was given, and a further alteration was that the amount of the licence fee was to be fixed by the special Board presided over by a Judge of the Supreme Court, instead of by the Land Board. Those are the only alterations. They were in one way important privileges. I have already pointed out that the holder of an occupation licence was liable to be turned out at a moment’s notice upon the granting of a lease of the land included in the run, and that an application for the land by way of selection or other tenure authorized by the Acts operated auto­ matically to determine the tenancy as to the land so applied for, and it has been held by the Supreme Court that the right of the new tenant operated retrospectively so that the holder of the occupation licence became a trespas.ser retrospectively. The provisions of the Reserves Declaratory Act made important modi-

332 HIGH COURT

[1909.

H.C. OF A.fications in that respect, because the effect of it was that, if the

1909.land lield under occupation licence was land reserved from sale

M inister of or lease, the holder had 60 days’ notice before eviction, and in the (N.S.W.)case of land under occupation for pastoral purposes some notice

Lands

V.to enable the holder to remove his stock and plant is a matter of

B ank of

N ew South great consequence. So the Reserves Declaratory Act made an

Wades.

important change for the better in the nature of the tenure of

Minister of holders under occupation licence which came within its pro­

Land.s (N.S.W.)

visions.

I t follows, in my opinion, that land when reserved

V.

automatically under the Act of 1906 becomes a reserve subject to the general law. One incident of that law is that it cannot

Scott.

Griffith C.J.

be made available for sale until tlie expiration of 60 days after revocation of the reservation. In the present case the applica­ tions by the appellants were made within 60 days of the revoca­ tion of the reservation of the land from sale and lease, and for the reasons I have given I think that the land was not open at that time to be applied for, and, therefore, that the decision of tlie Supreme Court was correct and the appeal should be dis­ missed.

B a r to n J. read the following judgm ent:—The matters to be determined arise in the same form in three appeals, which have

accordingly been consolidated.

The questions are these :—

(1) Whether the revocation of the reservations from sale and lease, as expressed to be made by the Gazette notices of 15th July 1908, had taken effect before or on the dates of the several settlement lease applications, the validity of which is contested —the date of two of such applications being 13th August 1908, and the date of the remainder 13th September 1908 ?

(2) Whether, on the dates of those applications, the lands, the reservation of which was revoked by the Gazette notices, were available for settlement lease ?

These questions, in effect, resolve themselves into one, namely, whether the revocation of the reservations had taken effect before and at the date of those applications so as to enable the land to be made available to satisfy them. The answer to this depends on the answer to another question, stated by Cohen J. in the judgment now under appeal. I t is th is ; whether land held under

9 C.L.R.] OF AUSTRALIA.

333

preferential occupation licence, and so reserved from sale or lease

H. C. OF A.

1909.

by virtue of sec. 3 of the Improvement Leases Cancellation Act

1906, is subject to sec. 6 of the lieserves Declaratory Act 1895 ?

M̂inister of

Lands

That enactme2it provides tliat after the commencement of that

(N.S.W.)

V.

Act, of which it is part (27th March 1895) the revocation of any

Bank of

reservation from lease, or of any reservation from occupation

N kw Sodth

Wales

licence, or of any reservation from lease and occupation licence,

is not to take effect until after the expiration of 60 days from the

M inister

of

Lands

day of the publication in the Gazette of the notice of the revoca­

(N.S.W.)

V.

tion. The settlement lease applications of the ajjpellants

Scott.

associated with the Minister for Lands in this case were all made

Barton J.

within that period of 60 days from the publication of the notice of revocation. If the revocation was not affected by sec. 6 of the Reserves Declaratory Act, the lands were available for the appli­ cations and the appeal .succeeds. If the revocation was subject to tlie operation of the section named, then the lands were not avail­ able until 60 days after the date of the notice, and the appeal fails.

The Improvement Leases Cancellation Act, No. 42 of 1906, was passed after an inquiry had been held by Mr. Justice Owen, as a Royal Commissioner, into the administration of the Lands Department and the circumstances under which certain run- holders had obtained the accejitance of their applications for im­ provement leases under sec. 26 of the Land Act 1895. Acting under the authority of the second section of that Act the Royal Commi.ssioner certified that certain of these leases had been granted under circumstances evidencing impi'oper acts or serious irregularity, and should be dealt with under the Act. His cer­ tificates were notified in the Gazette, and under the same section the leases became cancelled and forfeited. They included all the lands now in question. By virtue of sec. 3, the former le.ssees at once became the holders of “preferential occupation licences” of the land of which their improvement leases had been taken from them, and the land became “ reserved from sale and lease gener­ ally until such reservation” should be “revoked in whole or in part by notification by the Governor in the Gazette.” I t is the meaning of the words last quoted that we have now to determine. Where a reservation from sale and lea.se generally, effected purely

334 HIGH COURT

[1909.

H. C. OF A.

by the operation of tlie new Act, lia.s been revoked by the

190!».

(Jovernor, that is, of coursi;, bj- the Governor in Council, does

M in ist k i : of that revocation take ett'cct instavfer, or is its effect postponed, as

Lands

(K.S.W.)

in cases of revocation under the previous Acts, till the expiration

V.

Rank of

of 60 da}\s from the date of the Gazette containing the notice of

N ew Socth

revocation ?

W

alk .s,

The revocations in these cases were notified by the Mini.ster, as

M i n i .ster

of

Lands already stated, in the Gazette of 15th Julj^ 1908. In the same (N.S.W.)

Gazette there appeared further notifications of the setting apart

V.

Scott.by the Minister of .settlement lease areas, included in the areas Barton J.of the cancelled improvement leases, which were to be made

available for original settlement leases on the respective dates already mentioned, both within 60 days of the date of the revo­ cation notices. The Mini.ster’s co-apjiellants applied for settle­ ment leases within the areas set apart for that purjjose on the respective dates on which the notices of the setting apart pur­ ported to make the land.s available.

Of course, notwithstanding the revocations of the reservations from sale or lease, the former lessees continued to hold by virtue of their preferential occupation licences save as to any area covered thereby which might be lawfully disposed of. The contention of the respondents that the lands were not available for settlement leases on tSth August and 13th September 1908 means that they were not lawfully disposed of on those dates by the grant­ ing of the applications, and that the preferential occupation licences therefore remained in force.

An occupation licence is a very old tenure under the Land Acts. I t was by an occupation licence that the pastoralist held Crown lands for grazing purposes under the Act of 1861. When that law was repealed and the Act of 1884 came into force, the runs were divided into leasehold areas, as to which pastoral leases were issued to the run-holder, and resumed areas, of which he was given an occupation licence of the same character as his former grazing right. He paid rent for his pastoral lease, and an appraised licence fee for his occupation licence. Sec. 81 of the Act of 1884, providing for the issue of these licences, shows that they were preferential so far as the pastoral tenant was con­ cerned, tliough if he failed to applj’ for one, or forfeited or sur-

9 C.L.R.] OF AUSTRALIA.

3:i5

rendered that which lie had, tlie right to the occupation licence

H . C. OF A .

1909.

might be sold by auction or tender. Whether an occupation

licence is preferential or not, the land held under it, unless

RJintsteb ok

Laniis

within a reserve, is open to alienation by conditional sale or by

(N.S.IY.)

any of the other tenures devised under the Acts with the view

V.

B ank

ok

of encouraging the kinds of settlement distinct from purelj’

N ew SoDTii

W ales.

pastoral occupation, though, in the case of some of these tenures,

M isistek of

the land must first be set apart in special areas and a date notified

Lands

in the Gazette on and after which it is to become available foi'

(N.S.W.)

V.

such holdings. Sec. 33, the provi.so to sec. 43 of the Act of

Scott.

1889, secs. 3 {b), 4, and the second part of sec. 8 of the Act of

Barton J-

189.5, may be referred to as showing under wdiat circumstances preferential occupation licences are gained, how they are held, and the extent to which the lands held under them are subject to invasion under the law. I t will appear clearly, from a reference to these sections among others, that the preferential occupation licence given by the Improvement Leases Cancellation Act differs in no respect from any holding of the same description under the preceding Acts. I t is also clear, on the face of the Act in ques­ tion, that, unless the term is explained by reference to preceding legislation on the subject, this Act creates a holding the incidents of which are entirely at large. Also, the “ preferential licence fee,” to be determined under sec. 4 (e), is unexplained as to its effect or the period for which it is payable until we turn back and find that it is the appraised annual occupation fee for such a licence, determined under the prior Acts by the Minister after appraisement by the local Land Board.

Now as to re.servations. I t may be remarked that the reserva­ tion under the Improvement Leases Cancellation Act is a tem­ porary one. AVhile power to reserve from .sale was given by the Acts of 1861 and 1884, it was not until 1889 that a distinct power to reserve from lease or licence as well as sale was given. By sec. 39 of the Act of that year tlie Governor was empowered to make temporary reservations from sale or lease or licence in anj' particular manner, but not generally unless he so declared, by Gazette notice, and the Minister was granted a power to revoke or modify by similar means any such existing or future reserve. But by the Act of 1884, sec. 102, revocations of temporary reserves

••336 HIGH COURT

[1909.

H . C . OF A .

from sale could not take effect so as to authorize a sale of the

1909.lands comprised, until the expiration of 60 days after the revoca­ tion. The 39th .section of the Act of 1889 therefore vî ent on to

M ikistkk

of

Lands

(N.S.W.)provide that the revocation or modihcation should take effect

V.in accordance with the 102nd section of the Act of 1884, .so far

B ank

of

N ew South

as reserves from sale were concerned, that is at the end of 60

Wales.

da}\s, but that in respect of reserves from lea.se or licence, it

(Minister of should take effect a t the date of the notification. And until

Lands

(N.S.W.)

1895, when the Reserves Declaratory Act was passed, this dis­

V.

tinction was preserved.

By sec. 6 of that Act, however—a

Scott.

Barton J.departure from its general declaratory character—revocations of

reserves from lease (or from occupation licence), were placed on an even footing with revocations of reserves from .sale. It is enacted that they must “ not take effect until after the expira­ tion of sixty days from the day of the publication in the Gazette of the notice of revocation.”

Now it i.s argued that this very clear provision is to be ignored when we come to deal with the Improvement Leases Cancellation Act. The grounds of this argument seem to be that under that Act the temporary reservation from sale and lease generally i.s effected automatically and not by the Governor under a power (a provision which, by the way, so far from being an innovation, finds a precedent in the 46th section of the Land Act 1895 as applied to land acquired for purposes stated in that section); tliat the authority who may revoke it is to be the Governor, and not as in previous cases the M inister; and that the preferential occupation licences which follow the cancellations of the improve­ ment lea.ses come into operation automatically instead of being issued by the Governor. I find it impossible to see how the effect of the reservation is altered by its being accomplished by a .short cut; or how its revocation is any the less a revocation because the authority which declares it is the Executive and not the Minister. Equally am I unable to see that this revocation is to take effect immediately instead of at the time prescribed by the Reserves Declaratory Act, because Parliament has chosen to grant the preferential occupation licences itself instead of directing some other authority to i.ssue them. I t is also urged that the provisions of sec. 4 alter the character of the revocation.

9 C.L.R.] OF AUSTRALIA.

337

These relate to the duties cast upon a special tribunal constituted

H. C. OF A.

1909.

to deal with the land comprised in the cancelled improvement

M inister

o r

leases. This Board has really to determine matters in relation to the applications of the former lessees for improvement lea.ses or

L ands

(N.S.W.)

V.

for leases under .sec. 18 of the Act of 1908. The action of the

B ank of

Government in revoking the reserves had no necessarj'^ relation

N ew South

W ales.

to their inquiries.

The revocation might take place before their

M inister of

initiation or after their completion, so far as the exercise of the Lands

revoking power is concerned, although of course the reasonable

(N.S.W.)

V.

course was for the revocation to be held over until the deter­

Scott.

minations of the Board were made known. If the Minister

Barton J.

had made up his mind to set apart for settlement lease under the authority of the prior Laud Acts so much of the lands as were not made, under the findings of the Board, the subject of the fresh improvement leases or of leases under sec. 18 of 1903, then he would of course wait as he did to .see how much of these areas he would he able to dispose of by that method. But there is nothing in sec. 4 which helps one to conclude that the revocation authorized was not subject to the terms of the existing law. We were told that the Improvement Leases Cancellation Act was not to be read with the series of Land Acts. Well, with the exception of .sec. 2 there is no part of it which can be under- .stood without reference to those Acts. We should have to read them together even if the Interpretation Act 1897 did not provide, as it does by sec. 12, that an amending Act i.s to be construed with the Act which it amends, and as part thereof, unless the contrary intention appears in the amending Act. Certainly the arguments I have referred to do not furnish any evidence that Parliament intended this Act to be divorced in construction from the Land Acts which preceded it. If an am­ biguity appeared on the face of the Improvement Leases Cancel­ lation Act or by its necessary application to its subject matter, then we might look at the title for light. But the light thus gained i.s disconcerting to the appellants, for one of the purposes disclosed in the title is the amendment of the Crown Lands A cts; and its terms, like the body of the Act, are such as to show that the holdings to which it relates are part of the tenures created and regulated by the Land Acts, and that their nature and inci-

338 HIGH COURT

[1909.

H . C . OK A .

dents can only be gni.sjDcd Ijy reference to tlie.se Acts. Read

1909.

then witli the other Land Acts, the terms of that of 1900 show

Minister ok plainly that the reserves dealt with are reserves from sale and

Lands

(N.S.W.)lease within the meaning of the.se Acts, although effected by a

V..special process; and that the revocation i-eferred to i.s such a

B ank

ok

N ew South

revocation as was already known to the statutory law.

Indeed

W ai.es,

no special power of revocation is given. Resort is had to the

Minister ok

L an ds existing power of the Government to revoke reserves, although

(N.S.W.)the instrument of revocation is to be the Executive and not as

V.

previously the Minister.

This in fact was a reverter to the

Scott.

method of revocation which prevailed under the Acts of 1861 and 1884, and which lasted until the Act of 1889. But in each instance the alteration has been in the method, and has not touched the governmental power or the limitation attached to its exercise.

Barton J.

I am of opinion that the conclusions of the Supreme Court are r ig h t; that is, that the questions must both be answered in the negative.

The appeal ought therefore to be dismissed.

O ’C o n n o r J. read the following judgm ent:—The land in dispute was part of an improvement lease in respect of which Mr. Justice Otven had issued his certificate under sec. 2 of the Improvement Leases Cancellation Act 1906. By the operation of that and the following section the lease, on notification of the certificate in the Gazette, became cancelled and forfeited, the lessee became the holder under preferential occupation licence, and the land became reserved from lease or .sale generally until the reservation should be revoked in whole or in part by noti­ fication of the Governor in the Gazette. Afterwards the prefer­ ential licence was renewed for a year and the respondent Bank acquired the interest in it which they now represent. During the currency of the renewed licence, and considerably over a year after the Gazette notification of Mr. Justice Owen’s certificate, the Governor issued a Gazette notification declaring that by virtue of sec. 3 of the Act he had as to certain por­ tions of the land revoked the reserve. On the same date the Minister for Lands published a Gazette notification setting apart

9 U.L.U.] OF AUSTRALIA.

339

tlio.se portions for original settlement leases, and declaring that

H . C . OF A .

1909.

the}’ should be available for that purpose on and after a certain

date. That date was th irty days after the Governor’s Gazette notification of revocation. On the day named the portions set

Minister of

L ands

(N.S.W.)

I'.

apart were applied for as settlement leases and were afterwards

Bank of

confirmed to the applicants by tlie Land Board. During the pro­

N ew South

W ales.

ceedings for confirmation the respondents objected that the

Minlster of

Governor’s revocation of the reserve could not take effect until

Lands

after the expiration of sixty days from the date of its notification

(N.S.W.)

V.

in the Gazette, and that the lands applied for were therefore not

Scott.

open or available for settlement lease at the time when the appli­

O’Connor J.

cations were made. The Land Board overruled the objection. The Land Appeal Court, on appeal, took the same view, but .sub­ mitted a special case for the opinion of the Supreme Court on the cjiiestion involved. The Supreme Court, affirming the judgment of the Land Appeal Court, decided that the objection could not be sustained, and now this Court is asked to say whether that decision is right. If we had only to consider the Improvement Leases Cancellation Act 1906 the objection could hardly arise, for the revocation w’ould take effect from the moment of publica­ tion in the Gazette. The respondents’ contention is really based on the Reserves Declaratory Act 1895, sec. 6 of which enacts that the I'evocation of any reservation from lease .shall not take effect until after the expiration of sixty days after the publica­ tion in the Gazette of the notice of revocation. I t is, I think, clear that the Improvement Leases Cancellation Act 1906 must be held to be an Act amending the .several Land Acts, and must, therefore, in accordance with the Interpi'etation Act 1897, sec. 12, be construed with them and as incorporated in them. Indeed, apart altogether from the Interpretation Act, the well known rules applicable in the interpretation of Statues make it im- po.ssible to construe the Act so as to be effective unless it i.s taken as modifying pro tanto in some cases, and incorporating pro tanto in other eases, many provisions of the Crown Land Acts. We must therefore, I think, take it as a starting point in the di.scu.ssion of the question submitted that sec. 3 of the Act of 1906, and .see. 6 of the Reserves Declaratory Act 1895 must be read and con.strued as if they were part of the one enactment.

340 HIGH COURT

[1909.

H.C. OF A.Before considering tlie bearing of tlie.se provisions on one anotlier,

1909.it is necessary to say soinetliing of tlie subject matter of the Act

Minister of of 1.890, of the object at which it is directed, and the method by

Lands

(N.S.W.)

which the legislature has directed that object shall be attained.

Bank of V.I t is unnecessary for the Court to imjuire into the history of the

N ew Sou'th

Act, or to know anything more of the subject matter than appears

Wales.

in its provisions. I t is intended to deal with certain portions of

Minister of

land to be definitely ascertained by Mr. Justice Owen’s certificate.

liANDS

(N.S.W.)

The Act operates upon those portions, when ascertained, and upon

F.those only.

The purport of the certificate is, to quote the words

Sc.’OTT.

O’Connor J.of sec. 2, that an “ improvement lease ” of the land “ was

granted or purported to be granted under circumstances evidenc­ ing improper acts or serious irregularity.” The object of the legislature, apparent on the face of the Act, is to do what is fair as between the lessee, the Crowm, and the jiublic who are inter­ ested directly and indirectly in the administration of the public lands of the State. For the purpo.se of informing the Govern­ ment as to all facts necessary to be considered, a special Board is created, and the lessee is permitted within a limited time to apply for a new lease. In order to enable the Government to deal with each case untrammelled by any rights under the settlement lease, that lease becomes by the operation of sec. 3 cancelled and for­ feited on the Gazette notiheation of^the certificate, and the lessee becomes the holder of a preferential occupation licence over the land which is by operation of the same section reserved from sale and lease generally until the reserve shall be revoked b}' the Governor. If after the determination of the Board the Govern­ ment should decide to grant the lessee’s application, the public have for the time being no further concern with the land. If, on the other hand, the Government should decide that the lessee’s application for a new lease is to be refused, thej? may, as they think tit, either keep the lands under reserve or revoke the reserve and open them to public application. The Act is, therefore, on the face of it, not intended to be applicable to Crown lands generally. I t has to do solely wdth certain specific portions of Crown lands and with the conduct and rights of the persons who held them. We have, therefore, these two enactments dealing with the revocation of reserves. Sec. 0 of the Act of 1895, on the one

9 C.L.R.] OF AUSTRALIA.

341

liand, enactiug with reference to all Crown lands whicli may

H. C. OF A.

1909.

be reserved from lease generally that no revocation of such

a reserve will be allowed to have effect until after the ex­

M inister of

L ands

piration of sixty days from the date of notification. We have,

(N.S.W.)

on the other hand, sec. 3 of the Act of 1906 providing definitely

V.

B ank

of

that the reserve effected by operation of the section on the

N ew SonTii

Wales .

specific lands effected by the Act shall remain in force until after

it is revoked bj" the Governor’s notification in the Gazette.

Minister of

The

L ands

rule of construction to be apjilied in such cases is well known. It

(N.S.W.) ,

V.

i.s, to so interpret the enactments that they shall be if possible

Scott.

consistent. But if they cannot be fairly read in such a way as

O’Connor J.

to give full meaning to each consistently with the other, then one must give way, and the one to give way will be the general pro­ vision. In such a case the later special Act will be taken to have amended the eaidier general Act in so far as the matters dealt with in the specific Act are concerned—(see the cases col­ lected in Craies’ Statute Law, 4th ed., at p. 203). The Court however will assume that the legislature, in enacting the sections as separate provisions of the same Statute or groups of Statutes, intended full effect to be given to each. I t is only when there becomes apparent an inconsistency which it is impossible to avoid by any reasonable interpretation of the M'ords used, that a Court will in general draw the conclusion that the legislature intended the later special Statute to repeal the earlier general Statute. I was at first disposed to think that there was in the case of these two Acts such an inconsistency; that unless the revocation was to operate immediately there would be difficulty in giving- full effect to the provisions of the special Act in cases where the determination of the Board was favourable to the lessee. But on a fuller examination of the sections that difficulty disappeared. The second paragraph of sec. 3 must, I think, be read as a pro­ viso to the first. On the Gazette notification of the certificate the land becomes reserved from sale and lease generally until the reserve is revoked, but subject to the exception that the lessee may make application in re.spect of the land for one or other of the classes of lease specified. On that interpretation the reserve from lease does not apply to his application, and a lease may be granted to him on a favourable determination of the Board

342 HIGH COURT

[1909.

H. C. OF A. witlioufc the delaj^ ot‘ obtaining the Governor’s revocation of tlie

reserve and waiting for sixty days after that before tlie new MiNi-sTER OK title can be vested in him. When the determination of the

(N s'^W ) i^oard is unfavourable to the lessee, or is of such a nature that

the Government decides to displace him and throw the land open

Nnw Sooth to other applications, there appears to be no rea.son why the

of sixty days delay should not attach to revocations

M inister ok under the Act of 1906, as it does to revocations under the Re­Lands

(N.S. W.)

nerves Declaratory Act 189.5.

Sec. 6 of the Reserves Declaratory

V.

Scott.Act 1895 on the face of it is not restricted to reservations and

revocations declared and notified in accordance with the methods prescribed by existing Acts. I t will apply to any reservation, and any revocation which comes reasonably within the ordinary meaning of those words as used in the section. Whether the reserve is notified as being by the Governor with the advice of the Executive Council or by the Minister for Lands, or whether it is revoked by one of these methods or by the other cannot affect the operation of the section. The delay of sixty daj^s after the Gazette notice of revocation has been published is an incident which can be attached to any notice of revocation by whatever method issued, and unless the attaching of that incident to the notification of revocation under sec. 3 of the Act of 1906 would be incon.sistent with some of the provisions of that Act, or would in some particular stand in the way of its effective operation, there would seem to be no reason why the incident should not attach to that Gazette notification as to any other Gazette notifi­ cation of revocation issued under any of the Crown Lands Acts. After a careful examination of the Act of 1906, and of its objects and the method it has provided for their accomplishment, I am unable to see that the full and effective carrying out of the Act could be interfered with by interposing automatically a period of sixty days between the Gazette notification and the actual and effective operation of the revocation, nor can I find any portion of the Act which is inconsistent with that provision. There is, therefore, no valid ground on which consistently with giving full weight and effect to their respective provisions the two Statutes should not be read together. My opinion is that they must be so read, and that there must be attached to the revoca-

O Connor •!.

343

9 C.L.R.]

OF AUSTRALIA.

H . C . OF A .

tion issued by the Governor under sec. 3 of the Act of 1906 the

1909.

incident tliat it is not to take effect until the expiration of sixty

days after the date of its notification in the Government Gazette.

M inister

of

Lands

The land in question therefore continued under resei've from sale

(N.S.W.)

V.

or lease until the expiration of that period. When it was applied

B.ank of

for as a settlement lease only th irty days had elapsed, it was

N ew Sodth

W ales. Minister of

therefore not then open to settlement lea.se, and the Land Board

came to an erroneous conclusion in confirming the application.

L ands

It follows that the Land Appeal Court were w ron g- in upholding

(N .S.W .)

V.

the confirmation. For these reasons I think that the Supreme

.Scott.

Court took the right view of the enactments under consideration,

O’Connor J.

and answered correctly the questions submitted in the special case for their consideration, and that, in my opinion, the appeal must be di.smissed.

I saacs J. read the following judgm ent:—The Act No. 42 of 1906, the title of which includes the statement that it is to amend the Crown Lands Acts, was an Act to undo the public wrong of improperly granting certain improvement leases, and to restore the lands comprised in them to the Crown, to be again su.sceptible of being dealt with under the Crown Lands Acts already in force, the powers of which had been abused. With nece.s.sary safeguards introduced against possible injustice to the leaseholders, that shortly indicates the whole purpose and intent of the Statute. And when that position is once reached there does not seem to me any great difficulty in interpreting the Act. Notification in the Gazette of the certificate of Mr. Justice Given worked a cancellation and forfeiture of the lease. That undid the grant, but left the ultimate disposal of the land in doubt. Before that doubt could be resolved it had to be deter­ mined whether the land ought to be granted on improvement lease at all, and, if .so, on what term not exceeding 28 years, and at what rent and on wdiat conditions whoever should become lessee ; and, if so, whether in justice the former lessee, if he applied for a lease, should have the preference over all other persons, and, if not, whether he should be entitled to tenant right.

A special Board was to be appointed to consider and determine all these things, and in the meantime the land was declared reserved

344 HIGH COURT

[1909.

H. C. OF A.

from sale and lea.se generally so to remain until the reservation

1909.was revoked by the Governor. Pending final determination, the

Minister of

former lessee was left in posse,ssion, as preferential occupation

Lands

(N.S. W.) licensee, and with a special right of applying for an improvement

r.

lease within sixty days after cancellation of the lease. The

Kank N ew South

ok

amount of his licence fee was also determinable by the Board.

It

W ales.

is obvious tha t the Act contemplates the determination of the

M inister Lands Board before the Governor revokes the reservation, and that

of

(N.S.W.)

connotes the prior application of the former lessee or the lapse of

V.

Scott. the sixty days after cancellation, for otherwise the Board could

not complete the duties assigned to it, and the Crown could not know how it might dispose of the land. Assuming, then, the com­ plete determination of the Board, and assuming that to include a decision that the land should be thrown open for lease, the next step is to revoke the reservation by the Governor’s notification in the Gazette. As soon as that is done, the land is restored to the ordinary operation of the Crown Lands Acts, qualified only by the determination of the Board and such provisions of the later Statute as are either expressly or by neeessary implication a a qualification of those Acts. An express qualification exists in sec. 5.

Isaacs J.

I t is said that such a necessary implication exists in respect of the provision for revocation. As I understand the argument, it may be put most .strongly thus : The Act is a special Act; it efiects a forfeiture of leases and imposes a statutory reservation from sale and lease, which is new and outside the provisions of the Crown Land Acts, and the enactment as to the revocation is equally new and outside those Acts, and consequently outside the provisions of sec. 6 of the Reserves Declaratory Act. But the purpose of the Act was to undo what had been wrongly done— that could only be effected by Statute. The interim reservation was incidental merely, and in order to afford full opportunity to the Executive, subject to the determination of the Board, to deter­ mine how best to dispose of the lands for the public benefit, with­ out private injustice, and the revocation was merely to remove that temporary restriction as soon as the proper disposal of the land could be determined and the ordinary law set in motion again.

345

9 C.L.R.]

OF AUSTRA.LIA.

H. C. OF A.

Eevocation by the Governor is not a novel power.

The power

1909.

exists in sec. 101 of the Act of 1884 in respect of reservations

from sale. Sec. 102 provides that in such case the land shall not

Ministkr of

Lands (N.S.W.)

be sold before the expiration of sixty days after revocation.

By

V.

sec. 39 of the Act of 1889 the Minister is also given power of

B ank of

revocation of reservations from sale, and it is declared that his

N ew Sou'jji

Wales.

revocation shall “ take effect in accordance with sec. 102 of the

Minister of

Principal Act.”

Lands

This makes it clear that prohibition from sale for 60 days is what is meant by not “ taking effect.”

(N.S.W.)

V.

Scott.

But as to revocation of a reserve from lease sec. 39 expressly

provides that it should take effect “ at the date of the notifica­

tion.”

Isaacs J.

In 1895 the legislature changed its mind and made revocation of a lease reservation “ take effect ” also only after 60 days from notification. The provision (sec. 6 of No. 16) is quite general— it is not limited to a Minister’s revocation—it is a constantly speaking enactment applying to whatever mode of revocation the law may provide for, unle.ss the contrary should appear by the

latter enactment.

Besides, as Dr. Cullen pointed out, in sec. 32

of the Act of 1889 there was at the time of the passing of the Act of 1895 an excellent reason for not limiting it to a ministerial revocation, namely, the fact that the Governor may by notifica­ tion in the Gazette revoke a reservation from sale and from lease and licence.

The Act of 1895 added to sec. 102 of the Act of 1884 thei’efore fixed the policy of the law uniformly, that 60 days should in all cases elapse after revocations of reservations from sale and from lease before the land was dealt with, and therefore I see no necessary or even reasonable ground in the Act of 1906 for implying an intention on the part of the legislature that the general provisions of sec. 6 of the Act of 1895 should not apply to revocations under the latest Statute.

All the reason seems to me the other way. I t is in the highest degree unlikely that Parliament desired a more hurried dealing with the very lands that had already been improperly disposed of, and that required so much trouble to restore. On the con­ trary, I think it far more consistent with the object of the Act to

VOL. IX.

.3iG

HIGH COURT

[1909.

H.C. OF A.allow both to the Executive and the public the fullest period

1909.ordinarily provided by the law to consider what course they

Minister of .should respectively take with regard to these lands. If the

Lands

(N.S.W.)legislature desired so marked and unexpected a departure from

V.the ordinary consequence of a revocation, it is far more probable

B ank N ew South

of

they would have inserted .some specific words indicating their

Wales.

intention .such as those that I have referred to in sec. 39 of the

Minister of Act of 1889. But no such words appear. Where it was intended (N.S.W.)

Lands

to vary the general law Parliament expres.sly so enacted, as by

V.

Scott.

sec. 6 of the Act, by which the condition as to the quality of the

fsaacs J.

land for improvement leases is abrogated.

No injustice or practical inconvenience to the former les.see can be suggested, even if that were sufficient to raise the supposed implication, and altogether I am of opinion that the deci.sion of the Supreme Court was right and .should be affirmed.

Ap2M(d dismissed w ith costs. The Minister to pay the costs o f the appeal in ac­ cordance witJi the undertaking between the parties.

Solicitor, for the appellants, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors, for the respondents, Macnamara & Smith.

C. A. W.