New South Wales v The Commonwealth

The case of *New South Wales v The Commonwealth* was heard in the High Court of Australia. The State of New South Wales sought possession of Garden Island, or alternatively, a declaration of entitlement to possession, against the Commonwealth. The dispute arose from the State's purported revocation of a dedication of Garden Island for use as a naval depot.

The central legal issues before the Court were whether the dedications of Garden Island for naval depot purposes in 1865 and 1866 were perpetual and could be lawfully revoked by the Minister administering the Crown Lands Consolidation Act 1913 (NSW), and whether an Imperial Order in Council of 26th October 1899, and the agreement recited therein, affected the State's power to revoke such dedications. The Court was also required to determine whether the Commonwealth, claiming in right of the Imperial Government, had a superior right to possession of the Island.

A majority of the High Court (Knox C.J., Gavan Duffy, Rich and Starke JJ.) held that the State of New South Wales was entitled to possession of Garden Island as against the Commonwealth. The Court reasoned that Garden Island was part of the waste lands of the Crown, the management and control of which was vested in the Legislature of New South Wales by the New South Wales Constitution Act 1855. The subsequent dedications for naval depot purposes under the Crown Lands Alienation Act 1861 (NSW) did not confer any legal or equitable right upon the Imperial Government or any other authority that could prevent the State from revoking the dedication. The Court found that the Imperial Order in Council of 1899, made pursuant to the Colonial Fortifications Act 1877, did not interfere with the constitutional powers of New South Wales regarding its Crown lands and did not dedicate Garden Island in perpetuity. Therefore, the revocation of the dedications by the Minister in 1923 under section 25 of the Crown Lands Consolidation Act 1913 was lawful and effective.

Consequently, the majority of the Court ordered that a declaration of right to possession in favour of the State of New South Wales would be sufficient, with liberty to apply. Isaacs J. dissented, arguing that the State's claim should fail on equitable grounds, and Higgins J. also dissented, disagreeing with the majority's conclusion on the lawfulness of the revocation.