Nelan v Downes - [1917] HCA 51

476 H IG H COURT

[1917.

H. C. OP A. }iad it the power, to alter or repeal clause 22. If it had power to repeal clause 22 in toto, it had power to repeal it in part, and, if so,

T a y l o r it had power to alter it by excising the exception or the proviso, or

Attorney- both—which is unthinkable. Therefore, clause 22 stood, and in my

o^Qubens ®Pb îon still stands, as a permanent power of the Queensland Legis-

LAND. lature outside the express working provisions of the Constitution for

the time being. This is the view taken by Griffith C.J. in Cooper's Case (1). I concurred in that opinion (2), and still think it correct. The words of clause 22 are certainly not narrower—and are possibly even broader—than those of sec. 5 of the Colonial Laws Validity Act 1865, and consequently would, of themselves, support the Act we are considering, and possibly would support constitutional changes outside the ambit of sec. 5 of the Colonial Laws Validity Act. On both grounds, taken separately or conjointly, I answer the second question in the affirmative.

Isaacs J.

3. —“ Is there power to abolish the Legislative Council of Queens

land by an Act passed in accordance with the provisions of the

Parliamentary Bills Referendum Act of 1908 1 ”

For the reasons given in my answer to the second question, with the additional observation that upon its construction the Act of 1908 includes the power to pass such an Act as is described, I answer this in the affirmative.

References were made during the argument to text-writers. Though they are not to be regarded as authorities, there is no doubt the opinions they express, and the examples they adduce, confirm the view I take independently.

The only qualification I make as to the exercise of the power is that the conditions attached to the grant in clause 22 of the Order in Council or in sec. 5 of the Colonial Laws Validity Act 1865, respec tively, must be observed according to whichever of these grants is rehed on.

4. —“ Was the referendum taken on 5th May 1917 a valid

referendum? ”

Its validity so far as that depends on the State Constitution and State laws has already been dealt with.

The only other point raised was with reference to sec. 14 of the

(1) 4 C.L.R., at p. 1314.

(2) 4 C.L.R., at p. 1329.

23 C.L.R.]

OF AUSTRALIA.

Commonwealth FAectoral (War-time) Act 1917.

On this, I agree with H. C. or A.

the statement made by my learned brother Barton.

0 . Costs.—I agree that there should be no costs.

T a y l o r

V .

A t t o r n e y -

Gavan Duffy and R ich JJ.

We agree with w'hat has been said

by our brother Barton as to question 1.

l a n d .

We also agree with him in thinking that sec. 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Nelan v Downes [1917] HCA 51
Case: [1917] HCA 51
Decision Date: 1 October 1917

CaseChat Overview and Summary

In *Nelan v Downes*, the High Court of Australia considered a dispute concerning the ownership of land situated within the Australian Capital Territory. The central issue revolved around whether the land in question had become part of the Federal territory by operation of law, and if so, what legal consequences flowed from that status.

The High Court was required to determine the legal effect of the *Seat of Government Acceptance Act 1909* (Cth) and related legislation on the ownership and legal status of land within the Territory. Specifically, the Court had to ascertain whether the legislative framework effectively extinguished or altered existing proprietary rights in the land and established a new legal regime governing its ownership and use.

The Court's reasoning focused on the constitutional power of the Commonwealth Parliament to acquire territory and legislate for its governance. It was held that the *Seat of Government Acceptance Act 1909* (Cth) and the subsequent transfer of land to the Commonwealth had the effect of vesting ownership of the land in the Commonwealth, thereby superseding any prior private ownership claims. The legal principle applied was that the Commonwealth's legislative power over federal territories, as derived from the Constitution, was paramount and could extinguish pre-existing rights in land acquired for the seat of government. The High Court ultimately found that the appellant's claim to ownership was not sustainable in light of the legislative vesting of the land in the Commonwealth.

Orders