New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

[2016] HCATrans 228

[2016] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S168 of 2016

B e t w e e n -

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Appellant

and

MINISTER ADMINISTERING THE CROWN LANDS ACT

Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 OCTOBER 2016, AT 2.19 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR B.K. LIM, for the appellant.  (instructed by Chalk & Fitzgerald Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR H. EL‑HAGE, for the respondent.  (instructed by Crown Solicitor (NSW))

MR M.E. O’FARRELL, SC, Solicitor‑General for the State of Tasmania:   May it please the Court, I appear for the Attorney‑General of Tasmania together with my learned friend, MS S.K. KAY.  (instructed by Office of the Solicitor‑General)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MS K.A. O’GORMAN, for the Attorney intervening.  (instructed by Victorian Government Solicitor)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:  May it please the Court, with my learned friend, MS J.E. SHAW, I appear for the Attorney‑General for Western Australia.  (instructed by State Solicitor for Western Australia)

FRENCH CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   May it please the Court. Under section 36 of the Aboriginal Land Rights Act 1983 (NSW), a scheme was enacted by which a central concept of claimable Crown lands denoted land and attached premises in New South Wales which might be required to be transferred to a relevant Aboriginal Land Council. The requirement of transfer came about by a combination of determinations at the root of which is the matter which concerns this case, namely, the character of the land and premises as claimable Crown lands.

As your Honours know, under section 36(5) transfer was not an act of grace on the part of the Crown Lands Minister responsible for such lands ‑ it was a requirement upon the prerequisites being made out – under subsection (7) there being ultimately the possibility of judicial determination.

The appeal in this case from the first instance decision adverse to my client was an appeal limited to questions of law and thus at the heart of the matter is the question whether the facts fully found, to which I will shortly be turning, made out an unanswerable place to this land and premises being claimable Crown lands.  What I hope will not be a tendentious expression, your Honours appreciate that the land and premises in question are what might be called the “disused Berrima Gaol”.  It would be tendentious for me to immediately say the “unoccupied Berrima Gaol”.

Claimable Crown lands under subsection (1), the central concept both of the scheme and of this case, starts with that which is not contested and is clear, namely “lands vested in Her Majesty”, moves to the critical temporal nexus which is again not in question in this case – that is, the matter is to be determined “when a claim is made” – and then moves to a combination of requirements, positive and negative, of which those germane to this case are as follows:  namely, that they are “reserved or dedicated for any purpose, under the Crown Lands Consolidation Act” et cetera and relevantly – and here are the critical words – “are not lawfully used or occupied”.

The facts found may conveniently be seen in what I am going to call summation form at pages 372 and 373 of the appeal book in the summary by Justice Leeming with whose reasons the others agreed.  In paragraph 54, in particular, his Honour is avowedly referring back to the trial judge, to whom I will be going in a moment, at her Honour’s paragraphs 96 to 122.  At the top of page 373, one conveniently sees, quoted from the trial judge, the particulars, if I may call them that, (a) through (i) of what was said to be the successful demonstration by the Minister of lawful occupation. 

At that point I should note that which your Honours will have seen from the reasons and exchanged written submissions that for reasons that may or may not be obvious and in a sense do not matter this case was fought quite specifically on the basis of not lawfully occupied as opposed to not lawfully used - what might be called the approach of an hendiadys which can be difficult in the negative is therefore not germane to this case.  The way in which ‑ ‑ ‑

FRENCH CJ:   The onus relates to the facts and circumstances and then the question of characterisation follows.

MR WALKER:   Exactly so.  The onus is on the Minister to prove those facts from which by the application of the statute properly understood to those facts fully found lawful occupation or not would appear.

Now, as your Honours have seen in our written submissions, the list starts with an item that we acknowledge may be the weightiest with which we have to contend.  I will come back to it because it is the best, as it were.  But if one looks through items (b) to (i), most of them, to use an epithet used in the written submission against us by the Minister, are passive.  I will explain that further in a moment.  You see the premises were kept locked.  I will not keep interpolating but that invites the obvious interpolation that that is, of course, a commonplace of disused and unoccupied premises generally.  They are not all kept locked, but they often are.

Items (c), (d) and (e) are matters of public utilities being reticulated and the reticulation remaining operative to the premises.  That, of course, does not require anyone being in occupation of, or for that matter, using the premises so as to take advantage of those utilities.  Electrical supply, for example, can be used by remote or time switches.

Items (f) and (g) are perhaps cognate with each other, that is, the physical presence from time to time of persons performing work by way of what is called maintenance, including emergency maintenance in the case of (f), or replacement of a sprinkler system or perhaps other such episodic necessities by reason of what are called CSO workers – community service order workers.  Behind that euphemism is the fact that they are persons convicted and sentenced to serve what is called community service.

Item (h) did not much impress her Honour at first instance.  That is passive presumably in the sense that tools and implements being stored for the use of those CSO workers would involve obviously a physical presence of persons retrieving them for use from time to time.

Item (i) is of course either equivocal or not at all relevant to the question of occupation, let alone use.  The fact that members of the public wanting to visit the gardens, the roses, sought permission from Corrective Services New South Wales - a collection of public servants to which I will come back later – and the on‑site security personnel obviously went nowhere in relation to lawful occupation.

So at the head of the list in at least two senses was (a), 24‑hour on‑site security being maintained.  That was pursuant to the contract, or at least a supposed contract, to which reference was made by her Honour at first instance in the appeal book at page 315, paragraph 104, about line 21 and following, where your Honours see that Mr Hay, who was the Director of Asset Management within Corrective Services New South Wales, had arranged “24 hour 7 day security” during a period which embraced the critical date of claim.

There were invoices – and I can tell your Honours that those invoices identify a unit within Corrective Services New South Wales as what might be called the party to pay.  Your Honours need not be troubled with, I think, chapter and verse on that which is common ground.  Corrective Services New South Wales is not a legal person.  It is not a separate entity in a way which is familiar.  It is a group, a working unit of public servants to whom various statutory authorities are committed subject to ministerial direction.  Presumably, if there was contract it was a contract with the State of New South Wales or arguably with the Minister for Corrective Services. 

So, one comes to the notion of “lawful occupation” as a legal test or standard to be assessed as to fulfilment or not by reference to a list of items which, taken altogether, support what might be regarded as a telling description by the Minister in the written submissions – paragraph 48 of the Minister – concerning the relevant state of affairs – and I quote – that the supposed occupation can be seen from the:

holding the land in its current state as the physical site of gaol buildings and associated gardens and pending a decision on future use.

That last phrase in particular, amply supported by the evidence upon which her Honour made findings of fact about which there is no controversy at all as to their legal effect, that last phrase seems to be explicable on the basis that an interim or hiatus period after a public use has come to an end and pending a decision on whether there would be any further public use and, if so, what, may present difficulties including by extrapolation from this Court’s decision in Wagga Wagga to which I will come - by Wagga Wagga I refer in this Court to 237 CLR 285. By reason of that, it might be supposed the Minister did not undertake to make out a case of use at the time of claim, that is, lawful use.

So in terms of occupation, unpacked, the appropriate concession, which is not the only way the matter could be paraphrased but which is convenient for my purposes - unpacked, it seems to amount to this:  that what was formerly used as a gaol indeed could only be used for corrective purposes and what could no longer be used as a gaol, because the proclamation under the corrective services legislation permitting that had been revoked, was being held holding the land in what is called its current state.  Unpacked, that simply means the State continued to own the vesting.  I should say, in this case, it was one of those pieces of State‑owned land which was actually registered, where the registered proprietor was the State, so it is more than, as it were, radical title, and it was in its current state – that is, nothing had been physically done to the land.

There may or may not have been a factual quibble which is beyond us in this Court or indeed in the Court of Appeal, but this idea of holding the State and its land in its current state rather overlooks the inevitable inference to be gathered from the fact that it could not lawfully any longer be used or occupied as a gaol or for corrective purposes and it could not lawfully be used for any other purposes.

FRENCH CJ:   The State had a right of exclusive possession and it was exercising that right, was it not?

MR WALKER:   Unquestionably.  It has that right with all the land of which it is the registered proprietor.  It has that right.  The manner in which that right is enjoyed – the first word I would use – will differ according to circumstances, but the content of the right never alters as a matter of law.  The way in which a right of exclusive possession may be exercised, of course, includes the purely hypothetical, which is the use of reasonable force to repel trespass through to the highly formal, namely, the commencement of litigation to vindicate a right, including perhaps by an ejectment.  There may be intermediate steps such as self‑help in the form of a fence, gates, locks, et cetera.

In this case, the right of exclusive possession could be described as being exercised by means of the physical exclusion of the public from the land and/or the requirement of appropriate permission in order for persons to go onto the land, whoever they may be.  The holding – that is, being the owner with a right of exclusive possession of the land in its current state, without altering the premises – therefore needs ‑ ‑ ‑

GORDON J:   Is that right, Mr Walker?  I thought there was a finding that it had been decommissioned, vacated and mothballed.  I do not know what that means.

MR WALKER:   I can address that immediately.  The decommissioning certainly refers to both the physical but more to the point the legal status of the premises as a place of detention pursuant to a proclamation by which, for example, being held there would be a proper answer to a habeas corpus.

GORDON J:   That is the revocation of the proclamation?

MR WALKER:   That is the revocation of the proclamation.  “Mothballed” is perhaps an unhelpful figure of speech; it was the Attorney‑General’s in dealings with the Council.  None the worse for being from the Attorney‑General, I should say, but perhaps unhelpful because we mothball clothes over summer because we are going to re‑use them next winter, God willing.  There was no suggestion that this was being mothballed, like the battleship that is too expensive to maintain but may be called back into service if hostilities break out.

Rather, this was mothballing in the sense that it was finished as a gaol and it was going to be something else, whether or not in public ownership of one kind or another, such as under a Crown reserve, had yet to be decided.  Hence the accuracy and fairness of the Minister’s submission that it was being held pending a decision on future use; in its current state therefore can only describe what I might call its gross physical state.  It does not extend to, as it were, a Miss Havisham preservation of the furniture, et cetera, et cetera.

Then the concession goes on to talk about as the physical site of gaol buildings and associated gardens.  Now, as attractive and famous as they are, the associated gardens add nothing to this.  What is critical is the gaol buildings, and as gaol buildings they had been in governmental terms ‑ nothing being irrevocable but nonetheless it being plainly held by her Honour – in governmental terms they were superseded, surplus to requirements, not being used and not lawfully able to be used unless there were a further proclamation.  There is no finding that this was being mothballed in the sense of perhaps being called back into service as a gaol.  Of course, that may have happened legally, but that was not the factual position as held by her Honour.

Now, that leads to a characterisation again in the Minister’s submissions that, in our submission, comes to the heart of the controversy upon which the Court of Appeal erred.  Our friends describe that state of affairs as amounting to the land being held for “an essentially passive” purpose.  At that point we step back and come back to the words with which we started in paragraph 36(1)(b) of the Act and, in our submission, there is nothing to be gathered from those two participles “used” or “occupied” which gives support to the notion that it may be carried out or may be shown to exist by something which is essentially passive.  Neither of those words is, with respect, a state of affairs which is to be superadded to ownership.  Ownership is a given; it is a premise.

Neither of those words supports the notion that being an owner and holding it while you think about what to do with it amounts to use or occupation and I stress the Minister did not argue use and one may guess for precisely the reason that I have just summarised.

One point in this case is whether, as it were, less is required of “occupied” than of “used”.  We submit that is counter‑intuitive.  If anything, it may be regarded that use, such as the hospital buffer zone for fresh air and quiet, without occupation, indeed a use shown by no one occupying the land, is an illustration of the fact that use may be less physical in its requirement than occupied.

Now, as we understand the case against us, it is, it is insisted, the combination of those items (a) through (i), to which I have taken you.  We accept it is the combination that is the basis of the finding against us but we say that it is appropriate in looking at any combination to appreciate the extent to which the individual items in it may add together so, as it were, the whole exceeds the sum of the parts.

In this case, it is, in our submission, impossible to see ‑ without the 24‑hour, seven day a week, two 12‑hour shifts, the evidence shows, of the security service – how one could have used what remains of the items to be combined as making out occupied.

FRENCH CJ:   Now, there is a constructional question in relation to occupied and I suppose you implicitly, if not explicitly, identify some necessary condition for the satisfaction of that characterisation in this statute in respect of which the facts established fall short.

MR WALKER:   Yes, exactly.  In our submission, in this statute the negative condition of “not lawfully used or occupied” is necessary for the land to be claimable.  The statute bespeaks an intent – I do not need to rehearse our written submissions on this – that there be, using the term generally, Crown lands, which may be by way of historic reparation returned or transferred to current indigenous ownership. 

It would utterly defeat, indeed make a mockery, of that beneficial purpose where the holding of the land by the Crown, pending a decision on future use following cessation of the only lawful use, to be regarded as, by definition, an occupation.

To be fair, that would be a travesty of the argument against us.  That is not said.  Something more needs to be said, as we apprehend it, than simply that the Crown – the State, I should say – registered proprietor with the right of exclusive possession which is the core proposition of the estate in fee simple.  Something more needs to exist than that in order to constitute lawful occupation, otherwise this statute would have elaborately proposed a scheme to which always the answer would be not claimable because the State owns this for an estate in fee simple and has the right of exclusive possession.

I stress, we appreciate that is not the argument against us, but that means there has to be something more.  That “something more”, in our submission, can be shown by consideration of the cases to which we have drawn attention – Wagga Wagga in this Court – where, no doubt, according to particular factual circumstances, some content is given to the protean meaning, which nonetheless must be given a fixed content so as to enable decisions to be made in relation to whether or not there is lawful occupation.

In our submission, one needs only consider by analogy a case of use, which was the decision of this Court in Wagga Wagga, to see the way in which a case such as the present ought to have been determined.  To remind your Honours, the findings in that case involved State premises no longer actually used for what had been their long‑time purpose, a decision having been made to ready it for, and then to carry out, sale, though the liquidation of the State asset.  To that end, the usual kind of activities being carried out offsite in order to make and give effect to the decision to sell, and onsite, a survey – and at least once, a real estate agent looking at that which he or she was preparing to sell.

It is clear from the decision of this Court that, in particular those last two matters, even in combination with the offsite administration and decision‑making, did not constitute a use of the land. One of the reasons for that, of course, is that land surplus to requirements so that it is being put through the statutory and administrative process of sale by the State is the very paradigm of the land which one would suppose from reading the Act as a whole, but particularly section 36(1), would be claimable. That is, it is land for which there is not some use or purpose in its being held by the State to stand in the way as a paramount claim in the public interest against it being transferred to a lands council.

Now, to put it another way, otherwise the interpretation of this Act would appear to make available as claimable land only land in relation to which the State through its responsible officers is not exercising even a minimal degree of stewardship, whether that be by way of preventing the vandalising of a building by the erection of a fence, the commissioning of patrols or the stationing of a guard, or any of the other ways in which surplus premises pending either sale or dedication to some other purpose might be looked after during an interim period, and the interim period may be short or long depending upon the circumstances.  The only question will be whether or not at the time the claim is made it can be said the land was not lawfully used or occupied.

In our submission, entailed in the reasoning of the Court of Appeal in this case, contrary to the analogy that may be drawn from the decision of this Court in Wagga Wagga as to the companion concept of use, is that “occupied” may be made out by conduct which is no more than what would be expected of the responsible stewardship of an important public asset, preventing others from damaging it or making unauthorised use of it.

Now, the next step in relation to occupation is we think common ground, though it may be that is hopeful on my part.  The next step is that there needs to be an actuality rather than a merely notional quality to that which is capable of satisfying the word “occupation”.  Now, here I should concede that of course there is actual physical presence of security guards, but that would be true whether they were visiting once every six hours, once every 24 hours, or whether they were there all the time – one or other of them were there all the time.  When we say they were there, the findings of fact by her Honour do not enable any more to be known apart from they being on the premises, and I do not suggest that anything in this case turns on no more than that being known.

But it does mean, for example, that the difference between the presence of somebody who is retained physically to go to and stay on the premises 12 hours at a time – the difference between that and a person who is required to visit it every fixed number of hours, unlock the door, go in, come back out, is, in our submission, the kind of adventitious difference upon which one would not expect such an important concept as “lawfully occupied” for the purposes of being claimable land to turn.

FRENCH CJ:   So it would make no difference if there were a 24‑hour‑a‑day caretaking presence?

MR WALKER:   That is what we submit.  It may well be that there are questions of degree that become differences of kind, and notoriously some land, both in public and private ownership, is either let or is the subject of a licence residentially precisely in order to prevent what would otherwise be its unoccupied state posing and exacerbating a danger – a case where there is a cottage, say, formerly a policeman’s cottage, being decommissioned as police barracks is probably going to be sold, but pending a review of the State’s property portfolio no decision has yet been made.  If that property is either let formally or simply licensed by an appropriate authority to a family to occupy then there would be, one would have thought, no difficulty with finding that it was lawfully used or occupied.

If, on the other hand, somebody who does not live there goes there for the purpose of carrying out his or her contracted duties then, in our submission, it is by no means obvious that it is being occupied.  Thus, for example, in the event of an emergency such as constituted by a fire, in our submission it is very counter‑intuitive and not called for by the notion of occupation to suggest that for the hours in a very serious fire, days during which officers of the fire brigade are present, that the property is, for the purposes of this Act, to be regarded as lawfully occupied. 

For the purposes of other statutes, including those regulating the conduct of the fire brigade, there is no question that what might be called physically their occupation – by which I mean their presence – would unquestionably be lawful, but that is answering a different question and for different purposes.

In our submission, if it so happened that the date of claim was the day upon which there were fire officers present all day, that would not defeat a claim.  That is because the notion of use or occupation is to be seen in light of a scheme which calls for the availability of such land if there is not what I am going to call a statutory prior public claim.

KIEFEL J: Speaking of that scheme, do the words “use” or “occupied” in section 36(1) gain anything from the surrounding context? You have used the word “availability”, I think.

MR WALKER:   Yes.  It is one of those questions, your Honour, to which the answer always has to be yes.

KIEFEL J:   But then it gets harder.

MR WALKER:   Yes, it does.

KIEFEL J: Section 36(1)(a) starts with a qualification or a quality that the land has to have. It is a positive quality. But the balance of the paragraphs there are directed to what the land is not.

MR WALKER:   Yes.  So there are two ‑ ‑ ‑

KIEFEL J:   And it is directed to “availability” – the word you used just a moment ago.

MR WALKER:   That is what we submit.  That is why I submit that.  There are two positive requirements - “vested in Her Majesty”.  So, there is – once it becomes, as it has in this case, where vesting is by the registration – there is exclusive possession.  So, that is self‑evidently not an answer to “not lawfully used or occupied”.  It will not be enough that you have the right of exclusive possession.

Then, (a), they are – if I can put it this way – already available to be dealt with under the statutory regime which has characterised the history and which is in our, perhaps, unnecessary constitutional part of the case, or (b), are not available in that broad sense because the words are reserved or dedicated, but they are already dealt with, that is, held under a regime of restriction and that is what all the reserving or dedication is – held under a regime of restriction which it is within the power of the State to lift or qualify. 

So the two limbs of availability are they are already able to be lawfully sold or leased or they are reserved or dedicated for any purpose.  That is, obviously, a very large category of land – that is, on the face of it that is ‑ ‑ ‑

KIEFEL J:   Sorry, what would that leave in relation to Crown lands that are not available?

MR WALKER:   Well, apart from the obvious one that overlaps with (b), namely, that which is already leased, that is, you cannot lease that which is already leased, could I come back and try and answer that more categorically.

KIEFEL J:   Yes, of course.  But, if you go on to (b) in relation to the question asked earlier ‑ ‑ ‑

MR WALKER:   Yes.

KIEFEL J:   ‑ ‑ ‑ putting “lawfully” to one side just for a moment, if the land – land is available if it is not used or occupied.  If one reads the following two paragraphs, we see that land is available where it is not needed for particular purposes.  Is (b) then directed to an inference that land may not be needed – is redundant to purposes, whatever – and is, therefore, available where it is, one, not used or occupied; or two, not “lawfully used or occupied” because if it is not used in accordance with its dedicated purpose, the inference may be that it is not required for that purpose.

MR WALKER:   That is right, yes.  That is one of the steps in our argument as your Honours have seen from our written submissions.  May I go on and develop what follows from paragraphs (b1) to (e) in subsection 36(1) of the Act.  They are all negative qualities and it can be seen that they refer to current, or what might be called solidly prospective, that is, concretely prospective future purposes to which the land may be put which in the legislative judgment ranks above availability for a land rights claim. 

So the obvious politics as well as the evident policy of (b1) in relation to residential lands is posited upon a ministerial opinion.  May I draw to attention that that is a Crown land ministerial opinion and a phrase which will no doubt be the subject of contest from case to case:

are needed or are likely to be needed as residential lands –

Then one finds cognate words in paragraph (c), where something broader in one sense, narrower in another, is the object, namely:

an essential public purpose –

interestingly, without the ministerial opinion as the trigger.  Then one has in (d) and (e) what might be called deference to the Commonwealth native title regime.

Now, what they add up to, in our submission, is the availability notion I spoke of earlier.  Subparagraphs (d) and (e) affect availability because a different regime for recognising the historic dispossession is there deferred to; native title.  Subparagraphs (b1) and (c) recognise what might be called the greater political claim as enacted by Parliament of “residential” needs, in a Minister’s opinion, or “essential public purpose” needs; the word “essential” being, I suppose, the clincher.

The policy is evident that the public purpose in question must be essential as opposed to, I suppose, merely desirable.  That bespeaks a form of policy priority in which the claim of a land council is to be assessed.  It is assessed by this criterion of so‑called claimable Crown lands.  It is assessed by making out that character.

It is for those reasons, in our submission, that “not lawfully used or occupied” is scarcely to be regarded as always made out whenever land is being held – which here seems to mean little more than “owned” – not being used for the only purpose to which it can lawfully be put, and occupied only for the purpose of it being safeguarded pending a decision on future use.  Now, “future use” may be in public ownership, but it might also be sold.  Being held for sale is, as we know from Wagga Wagga, not in itself a use.

FRENCH CJ:   Does that imply some concession – it may not be a concession – that the term “occupation” in a generic sense is applicable to the holding of the land for the purpose of being sold, or some decision being made about its future?  You spoke of “occupied” only for the purpose of it being, et cetera.

MR WALKER:   No, it is not intended to convey any concession at all.  Let me backtrack.  The occupation by a surveyor’s visit, the occupation by a real estate agent ‑ to use Wagga Wagga as an example ‑ in our submission, neither amounts to use, as this Court held in Wagga Wagga, nor could it sensibly have been argued as occupation, notwithstanding the physical presence.

“Occupied” within the statute means more than “physical presence”.  It must, as we have put in our primary argument, be assessed against the regime for the management and control of the land in question which binds the State and all its officers.  Here that regime involved the permitted use being only for a gaol and that use no longer being able to be carried out by any officers of the State, it would be unlawful to detain any prisoner in Berrima Gaol after the proclamation was revoked; that applies to corrective services and the police.  It would equally be unlawful, in this case applying to the whole of the State and its emanations, for that land to be used for any other purpose than gaol purposes ‑ ‑ ‑

KIEFEL J:   I am sorry, please finish.

MR WALKER:   ‑ ‑ ‑and occupied within a statute that is speaking of and only of what are called in this statute Crown lands perforce, in our submission, with a peculiar emphasis gathered from the constitutional history contemplates the lawful disposition and dealing with the State asset which are the Crown lands from which it follows that there could not be lawful use or occupation by conduct which falls short of obeying a prohibition.

Now, the question – and I am now combining my two statutory arguments – the question arises as to whether the hapless security guards are somehow wrongdoers by reason of what might be implied in the last part of my argument and, in our submission, the question is unrealistic in terms of the statutory interpretation involved in this case for the following reason.  If there be a defect in the public service regulation by which – when I say the public service regulation I mean the manner of the public service carrying out their work ‑ by which Corrective Services contracted with the security firm, after Corrective Services ceased to have any statutory permission to use the premises, then so be it.  That would not be the only case of a defect in what might be called the proper channels being employed for a self‑evidently beneficial act in the interest of the State. 

We have, as you know, argued that probably there is an implied power in the Crown Lands Act not special to ownership but coming from the Crown Lands Act itself to do things, such as fencing land or going on to investigate a fire risk et cetera, et cetera, which simply comes with the stewardship which is otherwise explicit in the Crown land statute, and that, most importantly as a matter of responsible government, is executed through the Crown Lands Act Ministers, not through the Treasurer, not through the Police Minister, not through the Education Minister, and not by any other officer of the State engaged in discharging statutory or other functions that have nothing to do with Crown lands.  The Corrective Services Minister, of course, has no Crown lands responsibility whatever.

Now, there is nothing that we have seen, either in the reasoning below, either court below, or in the arguments against us here that suggests that the Corrective Services Minister had some, as it were, carryover function in relation to authorising what the Attorney‑General called the mothballing of this property.

GAGELER J:   Mr Walker, have you moved to proposition 2?

MR WALKER:   Yes, I am mixing the two, yes, your Honour.

GAGELER J:   Are you coming back to proposition 1?

MR WALKER:   I was going to, yes, your Honour.

GAGELER J:   I will wait.

MR WALKER:   I am sorry.  That is the problem with mixing.  May I just finish that particular part of the blend and then I will come back.  In our submission, in the absence of any such statutory authority, one may simply observe that there appears to have been a mistaken view taken – perhaps I am being charitable.  If anyone thought about it, there seems to have been a mistaken view as to which department – that means the public servants assisting a Minister – as to which department or organisational group within the public service was responsible for not only keeping the water supply, the sewerage supply, the electricity supply, but also engaging the security service, whether or not they were to patrol and open the gate or whether they were to be there, 12 hour shifts, 24 hours a day.

It is for those reasons, in our submission, that we can in anticipation refute any suggestion that ours is an argument that would stymy that which commonsense cries out must be possible, namely, the State as owner of otherwise disused and unoccupied premises to be able to organise such activities to be conducted in relation to it, including on it, from time to time or continuously in order to look after it pending a decision as to future use.

Now, coming back to proposition 1, in our outline I had departed, as it were, at 1(b) at the top of page 2 of our outline, where your Honours will see that we call in aid within this colocation “lawfully used or occupied”, we call in aid that which in a non‑exhaustive way, avowedly non‑exhaustive in Wagga Wagga, was said by analogy in relation to the use component of it.

Clearly enough, if one has legal possession coupled with actual possession, that is, natural persons with authority being on the land with some degree of permanence or continuity about which there cannot be exactness, of course, then it is likely that there will be occupation.  Now, I accept that does not mean that in the absence of those indicia there will not be occupation, but it does suggest that there can be activities performed in relation to and on land by natural persons without constituting lawful occupation.

KIEFEL J:   Mr Walker, I take it that it is not suggested that the actions undertaken on the land, such that they are, were contrary to any dedicated purpose?

MR WALKER:   They are not contrary to any dedication because we say it is within the authority of the Crown Lands Ministers to have the land looked after – that is, guarded.

KIEFEL J:   But you, in your proposition 1, as I understand it, refer to the dedicated land purpose as being relevant to an understanding of occupation.

MR WALKER:   Yes, of the quality of the kind of activity which for this kind of land would amount to occupation, as opposed to ‑ ‑ ‑

KIEFEL J:   That is a question of degree as much as anything else, is it not?

MR WALKER:   Everything to do with occupation is a question of degree, as the most simple example will show.  I was about to say “pedestrian” for the following reasons.  When the postman, in the days when they did, walks up the path then, under this Act, that would not be occupation.

KIEFEL J:   That resort to purpose would not be so important or perhaps even relevant if the inquiry as to occupation or use and occupation is seen as part of a larger inquiry as to whether or not the land is needed or not anymore.

MR WALKER:   Quite so, yes.  It amounts to availability in the way I put it earlier, yes.  In our submission, there is something ‑ ‑ ‑

KIEFEL J:   Then you would be looking at factors such as whether it was simply deserted.

MR WALKER:   Yes, but in our submission, it would be bordering on the perverse to require neglected and deserted land only.

KIEFEL J:   That might be right at the end of the spectrum.

MR WALKER:   Yes.

KIEFEL J:   Deserted and not used for such time.  That was really the position in Wagga.  The land had simply not been put to good use for a very long time.

MR WALKER:   Quite so.  But this land has not been put to use either.  This is not a case about use.

KIEFEL J:   What I am really saying, following up on my earlier discussion with you, was whether or not one really needs to resort to purposes and other factors where if one can see that occupation is really just an inquiry as to a fact to help the drawing of an inference as to whether or not land is needed or useful anymore and therefore to make it claimable and available.

MR WALKER: Yes. The broader context within section 36(1) suggests that there is a present state of affairs captured by paragraph (b) which is contrasted with what I am going to call a present appreciation of a future state of affairs in each of the four following paragraphs.

KIEFEL J:   Working backwards, one could take (d) and (e) out of the present inquiry because it involves ‑ ‑ ‑

MR WALKER:   Recognising the other system ‑ ‑ ‑

KIEFEL J:   It is being excluded because it is to do with a different regime, as you have referred to, but (b), (b1) and (c) involve the fact or opinion that something is needed or not.  Really, what I suppose I am pointing to is whether or not (b) really has as its following inquiry or the purpose of its inquiry much the same thing.

MR WALKER:   In a sense, yes.  What I trying to put about (b1) and (c) is this.  They are about an assessment as at the date of claim and a state of affairs which in the one case is looked at through the prism of the Minister’s opinion and the other case seems to be ultimately for the Court, as to whether the land is needed or is likely to be needed either for residential lands or for an essential public purpose.

For something to be needed is, we suggest, by contradistinction with it being currently used for that purpose.  Needed looks to a future which may be imminent or may be more distant.  That is why I say it is no doubt a matter upon which there will, case to case, be controversy in characterisation.

KIEFEL J:   As I understand it, what you are saying there is that you still determine the question of need by reference to the purposes for which the land is to be put.

MR WALKER:   Yes.

KIEFEL J:   But the question of need from whose perspective then perhaps brings in the question which Victoria raises about whether the land is needed for its dedicated or formally proclaimed purpose or as an owner might need or intend to put the land to use as an item of property.

MR WALKER:   Quite so.  It does raise all of that, I agree.

GORDON J:    Can I clarify that from my perspective.  Does that mean that if I have got Crown land which is able to be lawfully sold or leased and nothing more and I come to look at lawful occupation or use I look at it differently from that to land which has been dedicated under paragraph (a)?

MR WALKER:   Yes.  If your Honour is asking me about paragraph (b) ‑ ‑ ‑

GORDON J:    I am asking about (b) in the context of identifying occupation and use and what I was putting to you is, if you take in effect the groups of types of Crown land able to be the subject of claimable land and claimable land claims, is it your proposition that when one gets to (b) one looks at (b) differently, through a different set of lenses, depending upon whether the land is simply just available for lease or sale as distinct from land which is dedicated?

MR WALKER:   Yes, that the reservation or dedication are part of lawfully used or occupied and must be.  That is why the other phrase in (a) is important.  It is either “able to be lawfully sold or leased” or something which is not lawfully able to be sold or leased; it is “reserved or dedicated”.

GORDON J:   So in the general scheme under this Act is the proposition that one has, in a sense, easier access?  How would you assess occupation or use if something is lawfully able to be sold or leased?

MR WALKER:   No, (b) is speaking of something quite different from the state of affairs in the opening words of (a).  The state of affairs in the opening words of (a) is of the lands that they are “able to be lawfully sold or leased” and so that does not bespeak any use or occupation at all.

GORDON J:    No, but the way of testing the content you give to (b) for each of those limbs is in effect to identify what would be the analysis for the purpose of construction if you were dealing with a claim of Crown lands able to be lawfully sold or leased by the Crown in determining what  is not lawfully used or occupied.

MR WALKER:   Yes, and as I say, land which is, for example, already leased – in that sense not able to be leased – and I do not know whether that is correct and I do not think it has ever been argued – would, nonetheless, be lawfully used and no doubt occupied.  So extant leases are as honoured as you might expect.  On the other hand, the potential of there being a lease which is able to be leased is something which does not constitute, we submit, a lawful use or occupation because we would then have (b) defeating a premise in (a) and (a) is one of the positive premises that is available if able to be lawfully sold or leased.  You do not have that collapsing by saying that if it is able lawfully to be sold or leased, then it is – even if all you are doing is looking after it pending the real estate agents doing their job, it is lawfully used or occupied.

Wagga Wagga says no to use and we submit the same is true of “occupied” when all one is doing is looking after something pending, deciding what to do with it.  “Reserved” or “dedicated” then has a similarly adapted but obviously different approach.  With “reserve” or “dedication”, which are very strict regimes, in particular, “dedication” ‑ ‑ ‑

GAGELER J:   Mr Walker, that is where I was going to ask you the question.

MR WALKER:   Yes.

GAGELER J:   Where do I find this strict regime and what is the precise legal effect of “dedication” or of these dedications?

MR WALKER:   In the Crown Lands Act – you pick it up at – it is Part 5, which your Honours will be relieved to know is actually called “Dedication and reservation of land”.  Section 80 empowers a minister, and that is the Crown Lands Minister, to dedicate.  There is one effect of that – it is seen in section 83(2) – so that dedication trumps reservation.

BELL J:   How does the colonial dedication of 11 November 1891 come to be dedication under the Act – under this Act?

MR WALKER:   There is a transitional ‑ ‑ ‑

BELL J:   I see.

MR WALKER:   ‑ ‑ ‑ which picks up all the then extant Crown Lands Acts, one of which – it is called actually, recognising the history of the Crown Lands Consolidation Act ‑ ‑ ‑

BELL J:   Consolidation Act 1913.

MR WALKER:   Yes.

GAGELER J:   I think that is Schedule 8, item 1.

MR WALKER:   Yes.

GAGELER J:   But, where is the beef – where does it go?

MR WALKER:   May I give your Honour a more categorical answer to that later?  It has ‑ ‑ ‑

GORDON J:   Under the 1913 Act, I thought that section 24 which provided for the dedication of Crowns Acts, and that dedication is picked up by item 1 of Schedule 8 of the 1989 Act, I thought under that 1913 Act what it did was to say, listen, the Minister may by notification in the Gazette in effect declare or dedicate something for any public purpose and upon such notification being public such land shall become and be dedicated accordingly, and it can be revoked under the 1913 Act under 25.

MR WALKER:   That is right, your Honour.  Yes.  But Justice Gageler’s question, with respect ‑ ‑ ‑

GORDON J:   It does not answer it.  The question is what is the legal effect of the dedication?  Is it only to be used for that purpose?  Is it to ‑ ‑ ‑

MR WALKER:   When one looks at the objects in section 10(e), there is this notion of the objects of the Act being to provide for:

the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land –

What I need to supply in answer to Justice Gageler is where that object is given, as it were, operative force.

GAGELER J:   Just reading section 81(2), particularly paragraphs (c) and (d), it seems like the regime is almost that once land is dedicated then it might be then dealt with under other legal regimes.

MR WALKER:   You see in particular that from paragraph 81(2)(b) this notion of being “subject to the same dedication”.  Now, I apologise to your Honours, I am not able at the moment to put my finger, as I should be able to, on the equivalent for dedication as one finds in the trust notion that informs reservation because there is not the same ‑ ‑ ‑

FRENCH CJ:   Maybe it is something less than that.  Maybe it is in part a kind of declaratory effect which then – within the framework of which the Crown then does particular things with the land that it can do anyway.  I think a very loose analogy is in Northern Territory v Alyawarr where the proclamation of the Hatches Creek town site - the proclamation simply set a framework, nothing was done, and that went to questions of extinguishment.  

MR WALKER:   The relation between dedication and reservation can be seen in section 83 from which it would not appear that dedication is less than a reserve, although that may only deal with an inconsistency.

KIEFEL J:   But the key to a dedication is the purpose to which it is directed.

MR WALKER:   That is right.

KIEFEL J:   And everything is shaped around that and, as Justice Gordon said ‑ ‑ ‑

MR WALKER:   Yes, but I would like to get chapter and verse for that.  I am sorry I cannot put my finger on it straightaway.

FRENCH CJ:   The question is whether it is empowering or limiting.

MR WALKER:   It is both.  Now, does it add to the powers the Crown – I should say the State – I am sorry about the interchangeable use, the history rather requires it – whether it adds to that which was in any event available as a purpose for which the land could be used is probably not a very important question because the history here is it had been dedicated and the dedication was in force and ‑ ‑ ‑

GORDON J:   I think one of the answers may be found – I do not know if it is a complete answer – in Division 5 of the Crown Lands Act 1989, which talks about the protection of public land. “Public land” is defined in section 153 to pick up land which has been dedicated “for a public purpose”. It then talks about offences on public land, and what you can and cannot do on it.

MR WALKER:   Yes.  That is much broader, of course, than simply dedicated land, because that has Crown reserves as well.

GORDON J:   But it includes dedicated land.

MR WALKER:   Yes, it does, and there are various ‑ ‑ ‑

GORDON J:   You cannot reside on it; you cannot do things on it.

MR WALKER:   Yes; none of which, I think, provides the answer that I need at the moment.

GORDON J:   It may be because – you can remove trespassers from it independently of your use and occupation.

MR WALKER:   I am reminded that, not in the statute but in the case law and following from the Garden Island Case 38 CLR 74, it can be said that a dedication restricts the use of the land, which is, in our submission, an expected outcome. That reference is at page 84 of 38 CLR, to which one can add a reference from Justice Isaacs dissenting in the result at page 91.

BELL J:   Then if you go to Justice Windeyer’s analysis in Randwick Corporation v Rutledge 102 CLR at 74, his Honour, in a discussion of the history, explains how in New South Wales the notion of dedication did not have its limited technical common law sense as in dedication of a highway, and his Honour ‑ ‑ ‑

MR WALKER:  

seems to have been thought to indicate something more formal than mere reservation from sale –

which is another explicit statutory expression in the New South Wales statute:

something binding the Crown and creating some right in members of the public or of a section of the public.

It is tempting to say the statutory dedication works a dedication, and it is tempting to say the dedication involves restriction, but I am sorry, I cannot think of express statutory words that make it plain that that restriction is – I will call it exclusive.

KIEFEL J:   Well, it might be restriction on the Crown to the extent of the public purposes, that is, the Crown’s ability to deal ‑ ‑ ‑

MR WALKER:   That is what we say.

KIEFEL J:   But it might also be an empowerment in the sense that there might be particular power provided to enforce the management around the public purpose as something ‑ ‑ ‑

There are provisions which involve, for example, the creation of statutory offences and the like which apply to dedicated land along with reserved land, but it is not the purpose of dedication to attract the enforcement mechanism of those offences.  It is rather the other way around.  Those enforcement mechanisms are there to bolster the dedication or reservation.

GORDON J:   It is interesting that 159(2) of the Crown Lands Act uses exactly the same language - “Unlawful occupation or use” in dealing with trespassers.

MR WALKER:   Yes, it does.  The, I think, short point before I see whether I can go further in my answer to Justice Gageler is this, that by those dicta in this Court, or that holding – the Garden Island Case in this Court - it can be seen that dedication requires that the land not be used for something else, which accords with the ordinary English of that word in most, if not all, contexts that it singles out a purpose to the exclusion of others.

What I wanted to complete in relation to section 36, and in further answer in particular to matters that Justice Kiefel has raised with me, is that the relationship between what I will call the two limbs of (a) and paragraph (b) must be such that paragraph (b) does not become impossible of achievement simply because a State has under consideration the future use, including sale or lease or indeed reserving, of land which is no longer being used for its only lawful use and that whereas one would expect land with that character, which is the Berrima Gaol, would not be available for the residential lease of the family to deter intruders, whose presence would deter intruders, that one looks at the putative occupation advanced by the State constituted by the guarding arrangements which have been adopted in the same way as one looks at the physical inanimate security which is conveyed by locks, fences, gates, roofs, et cetera, which from time to time require monitoring, including by physical presence.

If that means that work had to be done to secure the premises, for example, by building a fence where there had not been one, and accordingly contractors were on site, perhaps by reason of urgency 24 hours a day, seven days a week until the fence was completed, one would not say that was lawful occupation for the purposes of defeating the availability that section 36(1) is aimed at describing.

That can be seen from the non‑transitory, more or less continuous or, to the degree that anything lasts forever, permanent nature of the competing and paramount future uses described in (b1) and (c).  In our submission, one would certainly not regard essential public purpose as being the fencing temporarily of land that is unoccupied, unused and needs protection before decision as to its fate, and neither should one call that lawful occupation for the purposes of understanding availability under subsection 36(1).

NETTLE J:   Mr Walker, there is, in effect, no period of grace in which the Crown can continue to hold land which has ceased to be used for a dedicated purpose?

MR WALKER:   No.  That is the whole point of this Act.  At that point the Parliament has said – and when we do not need it; we are not using that for which it has been used for generations and we do not fit within (b1) and (c) ‑ ‑ ‑

NETTLE J:   The only protection would be a certificate, say, under 8, if a subsequent decision were made before the hearing that it was required for those purposes.

MR WALKER:   Exactly so.

FRENCH CJ:   That would still have to date back to the time of the claim, would it not?

MR WALKER:   Yes.

NETTLE J:   In fact, no decision had been made, as it were, at the time of the claim that could not be certified.

MR WALKER:   That is right.  Of that land – now that I think about it – that will not work.  The temporality is critical.  Yes, the whole point is that here is this public asset, all of which exists as a portfolio of property because of historic dispossession recognised by this statute as being a mischief calling for some response.  The response is to say it becomes claimable.  Whether the claim is going to be allowed is a different question, but it must be claimable.

In order to be claimable it has to have certain positive attributes, the most obvious of which is it is not private land.  It must have negative attributes.  Leaving aside the deference to the federal scheme, it must have negative attributes which bespeaks its availability in the sense that there is not either a current use or occupation which is lawful or an imminent or prospective need. 

The need is explicitly politically governmental in (b1), because of the opinion of the Minister, and explicitly political, and none the worse for that, by reason of the nature of being likely to be needed as residential lands.  In (c) it is equally political because of the nature inherently of an essential public purpose – again, the question of likely to be needed.  Those are matters which are the only matters which will prevent it from being claimable Crown lands.

In our submission, it is to start the understanding of this statute from a wrong vantage point to think in terms of the need for the State or the Crown to be able to repel claims.  This is a statute which allows and, we would submit, welcomes claims for lands which fit the positive attributes and do not fit any of the negative attributes.

It is for those reasons that if there is a disused gaol, unoccupied within the meaning of the statute, not least because it cannot be used as a gaol and it is simply being looked after pending whatever else it is going to be used for, or even perhaps sale, then I hope that no one thinks it is likely to be needed as residential lands – would be pretty grim apartments – and an essential public purpose which no doubt could be incarceration of malefactors has just been the subject of a political decision that it should not be used for that.

FRENCH CJ:   The purpose of the statute on your submission is to be pitched higher in favour of Aboriginal people than to provide Crown land which the Crown does not want.

MR WALKER:   It is certainly higher than “that the Crown does not want”.  I note that my next comment is bordering on the cynical because what the Crown wants if manifested through the position, including litigated position of its officers, would appear to be ‑ ‑ ‑

FRENCH CJ:   I am talking about the statutory purpose.

MR WALKER:   Obstructive, yes. But when one looks at the statute, the meaning of section 36 itself then – residential potential as a special status, essential public purpose no doubt for fear – no doubt (b1) has a history that reflects an apprehension that (c) “essential public purpose” might not fit residential potential. Those two, in our submission, more than adequately describe a policy enacted by section 36, that is, the purpose of the scheme to be understood which falls within a statute designed to facilitate rather than impede the return, to use a loaded phrase, of land to indigenous ownership.

It can be seen it is done by a system of what I will call priority.  The error that we have tried to identify and that we note in (1)(c) of our outline is that when considering “lawfully used or occupied” the interim period when land is being looked after, following the cessation of its only lawful use and occupation and before a decision has been made as to whether there will be any further use or occupation by the State, that interim period of looking after the land can hardly be supposed as being adequate to mean that (b) cannot be satisfied.

The dedication in particular is one which informs not merely the lawfulness – it clearly informs that, that it is not lawful to use or occupy land other than for its dedicated purpose, but it also informs the kind of acts and facts which would amount to occupation in the first place.  Visiting land, even staying on it 24 hours a day to ensure that it is not vandalised, is not, in our submission, to be regarded as either use or occupation in that context.

That covers, as well, the proposition (1)(d), apart from that conveyed by the last sentence.  Your Honours will recall that the presence of the community service order people was held by the court below to constitute a continued use for the punishment of offenders.  The point that you have seen developed in our written submission, that I do not need to elaborate at any great length, is that the site of the Berrima Gaol as where the gardening or other works were being done pursuant to a CSO, is purely coincidental in the sense that CSOs can be and are required to be fulfilled by activities at places other than gaols. 

One thing is for sure, by statutory requirement, that what is occurring at Berrima Gaol pursuant to a CSO could not be regarded as imprisonment, gaol purposes.  That is because in relation to the CSO itself it is an alternative, a mutually exclusive alternative to imprisonment, and as to Berrima Gaol that it is no longer a lawful place of detention.  It is not suggested they were detained.  That, in our submission ‑ ‑ ‑ 

GORDON J:   Does that rise any higher than if they were – that if it is right the contention that they are mowing the lawns of retirees or pensioners cannot equal occupation or use?

MR WALKER:   That is right.  In that part of the court’s reasons below though, your Honour, that appears to play a role in refuting “not lawfully used or occupied” by saying CSO people are there.  There is nothing, we say, significant about them being CSO people or it having once been a gaol.  You cannot put the two together.  It therefore becomes no more significant than tourists visiting the roses. 

It is for those reasons, in our submission, that everything seen in combination – (a) to (i) – being the facts to which section 36 needs to be applied, amounts to an indication that not only was the land not being used, neither was it being occupied, in both cases, lawfully. It is for those reasons that it should have been held that the land was claimable land.

Now, the next part of the argument which I have largely anticipated in address concerns the status of the on‑site guards – if one had to, I suppose, the status of those supervising both the tourists and the CSO people as being officers of Corrective Services New South Wales.

It is not possible to spell out from any of the statutes – I stress the statutes – any function of Corrective Services New South Wales to mothball, look after, maintain or guard places which are not gaols, which are not proclaimed.  Neither is it possible, nor was it attempted below, nor here against us, to argue that there is any necessary implication of such a power or authority.  If one locates it away from the people in uniform and up the political chain to a Minister, the point becomes even plainer, that there is no allocation to the Minister for Corrective Services of what might be called a property portfolio function in relation to properties which are not gaols.

BELL J:   The land nonetheless remained, on your analysis, subject to the colonial dedications for gaol purposes which had then been picked up.

MR WALKER:   That is right.

BELL J:   So that the argument is that Corrective Services personnel have no place looking after land that is dedicated for gaol purposes.

MR WALKER:   Yes, that is what I mean by there is no property portfolio function.  It is possible for land to be dedicated for gaol purposes, but to be illegal to be used as such.  That is this case.  And it may be that there would be what I will call historic grim places which are in that state of affairs.

NETTLE J:   Mr Walker, if the Minister for Crown Lands had authorised officers of Community Services to occupy the land pending a decision being made as to its redeployment, would that have been lawful occupation?

MR WALKER:   No, it would have been lawful, but not occupation.  It would have been lawful conduct, just as it would be lawful conduct to arrange for the plumber to go on to check a leak.

NETTLE J:   And that is only because it can be occupied lawfully for the purpose of gaol, is it?

MR WALKER: No, it is because in terms of the scheme in section 36, particularly subsection (1), merely looking after property pending a decision on how it will be used will not amount to occupation.

NETTLE J:   In your submission?

MR WALKER:   That is right.  It would be lawful conduct in relation to the land for the plumber to be retained, the lawnmower to go on at seasonal intervals, and for a guard to be employed, whether to look in from time to time ‑ ‑ ‑

NETTLE J:   Yes, I understand.

MR WALKER:   Yes, so that would all be lawful, but would need to be authorised by or under the Minister for Crown Lands, not Corrective Services.

GAGELER J:   Why?

MR WALKER:   Because there is no function given to Corrective Services to look after land which is no longer capable of being used as a prison, and it is with ‑ ‑ ‑

GAGELER J:   No statutory function granted?

MR WALKER:   No statutory function.

GAGELER J:   But why does statute need to be in play?

MR WALKER:   Well, for the Minister for Corrective Services qua Minister for Corrective Services, the only source of power will be a statute.  There is no prerogative to lock people up anywhere.

GAGELER J:   I am sorry.

MR WALKER:   Or to spend money to do so.

GAGELER J:   To maintain the property that was formerly a gaol.

MR WALKER:   Yes, and it is in the carry‑over – it is in the after the event period that I am talking about, but no one has indicated any statutory function or power or authority or one might say obligation which imposes on the Minister for Corrective Services and that part of the budget that he or she administers the burden of looking after what I will call former gaols.

GAGELER J:   Granted that, granted the absence of statute, my question is why does not executive power extend to that?

MR WALKER:   In our submission, because it does fall within the property portfolio ministry, which is the Crown Lands Act and its Ministers, and where there is a statute one does not look for competing executive power.  Were it otherwise, the inquiry would be why not the Education Minister, which the tart answer ought to be it is none of his or her business, and our submission is that was true also of the Corrective Services Minister.

BELL J:   And yet the land remains, on your argument, dedicated for gaol purposes ‑ ‑ ‑

MR WALKER:   Yes.

BELL J:   ‑ ‑ ‑so that one might think preservation of land dedicated for gaol purposes by that instrument of the Executive that has as its function administering gaols is not such a leap.

MR WALKER:   Well, the Crown Lands Act is the more natural home, indeed the only home, for property in the State portfolio which is not able to be used as a gaol because, notwithstanding the dedication, there can be, indeed as was evident in this case, there concretely was under consideration steps being taken of various kinds – nothing was decided at the relevant time – which would have had the effect of eventually revoking the dedication and, as I say, no one has pointed to anything. 

Justice Bell and Justice Gageler remind me statute is not the only source of power, but no one has pointed to anything first of all in the statute by which Corrective Services Minister remains, as it were, tagged with former gaol maintenance and guarding until a decision has been made.  The Crown Lands Act Minister plainly is not the ministry through which questions of dedication will be both made and unmade, and it is the dedication ‑ ‑ ‑

GORDON J:   Is that the limit of it though?  I thought that the way I understood your earlier submission about the objects of the Crown Act under section 10 which are the responsibility of the Minister under section 12 ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ does that take it one step further or is that the other side of the same coin?

MR WALKER:   It probably takes it further but it is all part of the same allocation to the Crown Lands Act Minister of responsibility for what I will call inactive parts of the portfolio.

GORDON J:   And when you said earlier it identified no – there was no submission put against you that there was any statutory power dealing with the Minister for Corrective Services, is that to say that because there is a statutory power vested in the Minister for Crown Lands that in a sense that executive power is vested in that Minister and that Minister only or that part of the executive power?

MR WALKER:   That would not logically follow.

GORDON J:    No, that is why I am trying to work out what the limits of it are.

MR WALKER:   In this case we need only point out that there is no further lawful use by the Minister for Corrective Services of this land to defeat the notion of an implied power, let alone obligation, to expend moneys on it.  That will suffice for our purposes.

It is not clear to demonstration from the enacted words of the Crown Lands Act, that is I cannot point to a section which says that the Crown Lands Minister has power to retain security guards, but it does follow as a matter of necessary implication that the powers in relation to control and management ‑ ‑ ‑

NETTLE J:   I wonder if you really need this aspect of your argument, given what you have said already about the meaning of use and occupation in 36(1).

MR WALKER:   No.

NETTLE J:   And you could accept, could you not, that there is implicit authority in the Minister for Corrective Services to look after a disused gaol until a decision is made about it and still succeed on that principal point.

MR WALKER:   Yes.  As we point out, any one of these points is sufficient.  Our first which really says this does not amount – you will forgive me, I will use the whole collocation to lawful use or occupation and given the way the Minister framed the case it certainly does not amount to lawful occupation.  That is notwithstanding the lawfulness of the conduct on the argument against me on my second point. 

I do stress, it is no part of our case to decry illegality and contract making with a security service.  If it turns out that they have contracted with officers who should not have contracted, then the Auditor‑General, if he or she cares, can do something about it.

KIEFEL J:  But more broadly, why would section 36 of the Aboriginal Land Rights Act have as its concern the kind of legality that you are relying upon?

MR WALKER:   It would not at all, in our submission.  It does not matter whether or not the allocation to among departments of power has been observed.  The lawful occupation in this case has to be seen in light of that for which the land has been dedicated and that which is actually happening on and to it at the time of the claim, and at the time of the claim all that was happening on or to it was it was being held pending a decision.  That is an adaption of the language of the Minister himself.

KIEFEL J:   So for the word “lawfully” you read “within its dedicated purpose”?

MR WALKER:   In the case of dedicated land, yes – that is, it could not be lawful if it was contrary to the dedication.

KIEFEL J:   I did not think this case had been run below on the basis that the actions were inconsistent with dedicated purpose.

MR WALKER:   Your Honour, it is not run on the basis that the actions were inconsistent but that they do not amount to lawful occupation if they are not being occupied for a gaol.  They are being looked after; they are not being occupied lawfully.  The two have to go together because the only occupation that is permitted is for the purposes of a gaol.  Otherwise, what is lawful and what occurred probably is that it is being looked after. 

No‑one says that the activities of maintaining these premises, be they 24 hours a day or less constantly, are in themselves unlawful.  What we say is they do not amount to lawful occupation for the purposes of defeating what would otherwise be its character as claimable Crown land.

We have, as your Honours have seen in our written submissions – I do not need to dwell on the point, I am now up to 2(b) in our outline – we have noted, bearing in mind where the onus lies, that there is no suggestion here of involvement of the Crown Lands Ministers.  It is for those reasons, in our submission, that we can put to one side what I will call “implied powers of stewardship or guarding” as ever amounting to an occupation in this case.  In particular, there was not, obviously, steps to revoke a dedication so as to permit, for example, a lease or licence in the short term pending a decision as to a longer term fate for the premises.  That would have been a classic example of “lawfully used and occupied”.

Your Honours, I then come to the third of the three independent ways of our succeeding by which I mean we only need one.  That turns on the notion that there cannot be, in the absence of statutory authority, any lawful use or occupation of – I am going to call it generally – Crown land.  As your Honours have seen, that is an expression which – not completely but nearly completely – is congruent with the historic term “wastelands of the Crown” which, again, nearly but not quite completely is to be understood as that part of the land to which radical title was obtained on sovereignty which has not been disposed of, relevantly, by grant.

That is necessarily an incomplete statement and all parties’ written submissions have drawn to your Honours’ attention the slight and not so slight variations in the perceptions of that at different times and in different cases.  But, in our submission, what there is not available in this case outside the relevant statutes is an executive power, whether or not it attracts the quality of being prerogative, or another quality of being formally understood to be the prerogative, by which the combination of circumstances, including the physical presence of the on‑site guards, amounts to lawful use or occupation.

There are two streams, as we see it, in the argument against us.  The first is that it appertains to the ownership of land, whoever be the owner to dispose of it by, for example, authorising the presence of guards round the clock.  The second is that it appertains to the Crown or State as a polity, particularly in relation to land which derives from the radical title, to deal with it - and I hope I am not traversing my friend’s arguments - however the Crown may from time to time see fit.

If the argument does not go as far as my last phrase mentions, then it immediately begs the question what are the limits apart from statutes, to which the answer must come back, well, it could only be statute because there is not some implication upon the Executive committing to the judiciary second guessing political decisions by the Executive as such, that is, on the merits.  It is our argument that from self‑government in 1855, there has been reposed not merely a power to make laws – that is true, there has been a power to make laws – but there has been reposed an allocation of control and management of what I am going to call Crown lands in the legislature of New South Wales.

Your Honours have seen the use that we make of the dicta which are part of ratio in Williams 16 CLR 404, particularly at 456 and 465. I do not need to take your Honours to the passages. They are well known. It is critical, in our submission, to see that their Honours do not regard the word “legislature” as indicating either the Crown indifferently of the arm of government, nor do they regard it as indicating merely a grant of legislative power. Rather, there is an allocation to the legislature as opposed to the Executive.

The argument, in our submission, has to be seen against the historical sweep of events.  I am not going to take them in full date order because I want at the outset to note that historical sweep of events included what I am going to call the tidying up of 1902, what might even be called the repatriation of the State Constitution by being enacted in a State Act as opposed to continue to be in force as a Colonial Act authorised by an Imperial Act.

In our submission, the first of the repeals that you see in the 1902 Constitution Act says nothing to the contrary of the argument that we have put.  We do not understand, with respect, that it is said that any constitutional structure was swept away by that tidying up, including that first repeal, that is, of the 1855 Colonial Act.  Naturally enough, 84 years before the event, there was not a purported repeal of the Imperial Act, whatever else may be said thereafter.

It is for those reasons that when comes back to the beginning of self‑government, in the swoop of events it is critical to understand that the wording of section 2 of the Imperial Act, section 58 of the Colonial Bill…..to and authorised to be enacted by the imperial Act.  What is critical about those words is that they allocated a control and management away from where it had hitherto reposed. 

It had hitherto reposed, certainly in political terms, in decisions made in London.  That is what self‑government sought to modify, so that decisions made in New South Wales would not only dispose of the lands, but – call me cynical – also spend the money raised by doing so; decide how to spend the money.

It does not matter for present purposes whether there was an Act of the United Kingdom – I will call it an Imperial Act – that regulated the control and management of wastelands of the Crown wherever situate in the Empire before 1855, but we have drawn to attention the Australian – that is the enactment aimed at the Australian colonies in 1842, the Australian Colonies Waste Lands Act of 1842. 

We have also drawn to attention going back further in time a statute of 1701 that we do not need to rely upon directly of its own force merely to indicate that the subjection of the Executive, the Crown, to the legislature in relation to dealing with wastelands – that which became the main source of what was later known as Crown lands – is by no means anything radical or unexpected. 

Your Honours appreciate that I am here making a run up, as it were, to Justice Leeming’s application of familiar canons of statutory interpretation against what we essay below about the 1855 Constitution, against the idea that it represented any abrogation of prerogative or, query, proprietorship. So we observed when 1855 came around, specifically in relation to the Australian colonies including New South Wales – I think it is really Australasian colonies – in 1842 there had been legislative control of kinds and to a degree of executive action.

Then, in 1855, together with the evocative word “entire” – the entire control and management was given to the legislature of New South Wales, the new organ of self‑government with its rudimentary element of democracy in the lower house.  It is not, with respect, possible to construe that as meaning anything other than the legislature as opposed to the Executive.

FRENCH CJ:   What happens between the coming into effect of section 2 and the first law with respect to wastelands of the Crown made by the local legislature?

MR WALKER:   The matter remains within, and only within, the grasp of the legislature.  There were grants that had already been effected, of course, and expenditures already approved.  The Executive – in answer to your Honour’s question – could not say until Parliament speaks either governor will continue without knowing the will of the chambers to grant land and to spend the proceeds.  What would happen, negatively – what will not happen is the Executive would take on that right.

FRENCH CJ:   That might be a convenient moment, Mr Walker.  The Court will adjourn until 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am for the resumption of this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY 5 OCTOBER 2016