Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW - [2022] NSWSC 1763

Supreme Court

New South Wales

Medium Neutral Citation: Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763
Hearing dates: 20 April 2022
Date of orders: 20 December 2022
Decision date: 20 December 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [302]-[305]

Catchwords:
EQUITY – trusts – charitable trusts – relationship with statute – Necropolis Act establishes cemetery with denominational burial grounds on Crown land – Necropolis Act vests denominational burial ground land in trustees and provides for appointment, removal, functions and responsibilities of trustees – Necropolis Act amended to bring appointment, removal, functions and responsibilities of trustees under Crown Lands Act – Necropolis Act repealed – Crown Lands Act re-enacted to vest land in Crown and extinguish any trust over burial ground land - whether Necropolis Act established charitable trust or only “statutory trust” over burial ground land and proceeds of operation of burial ground – effect of re-enactment of Crown Lands Act on burial ground proceeds

Legislation Cited:
Australian Colonies Waste Lands Act 1842, 5 & 6 Vict, c 36 (Imp)
Cemeteries and Crematoria Act 2013
Charitable Uses Act 1601, 43 Eliz 1, c 4
Church Act 1836, 6 & 7 Wm 4, c 71 (Imp)
Constitution Statute 1855 (Imp)
Conversion of Cemeteries Act 1974
Corporations Act 2001 (Cth)
Crown Lands Act 1884
Crown Lands Act 1989
Crown Lands Alienation Act 1861
Crown Lands and Other Acts (Reserves) Amendment Act 1974
Crown Lands Consolidation Act 1913
Crown Land Management Act 2016
General Cemetery Act 1847
Interpretation Act 1987
Land Act 1933 (WA)
Local Government Act 1919
Necropolis Act 1867
Necropolis Act 1901
Necropolis Act Amendment Act 1884
Necropolis (Additional Areas) Act 1893
Necropolis (Amendment) Act 1923
Necropolis (Amendment) Act 1954
Necropolis (Amendment) Act 1973
Necropolis (Amendment) Act 1986
New South Wales Constitution Act 1855, 18 & 19 Vict, c 54 (Imp)
Public Parks Act 1854
Public Parks Act 1884
Public Parks Act 1902
Public Parks Act 1912
Public Trusts Act 1897
Public Trusts (Amendment) Act 1944
Rookwood Necropolis Amendment Act 2004
Rookwood Necropolis Repeal Act 2009
Trustee Act 1925

Cases Cited:
Attorney-General (NSW) v Eagar (1864) 3 SCR (NSW) 234
Attorney-General (NSW) v Williams (1913) 13 SR (NSW) 295
Attorney-General (NSW) v Williams (1915) 19 CLR 343
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Baba v Sheehan [2021] NSWCA 58
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Carr v Carr [2022] NSWSC 166
Fouche v Superannuation Fund Board (1952) 88 CLR 609
General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515
Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5
Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619
London Association of Shipowners and Brokers v London India Docks Joint Committee [1892] 3 Ch 242
Mayor of Lyons v Advocate-General of Bengal (1876) 1 App Cas 91
Metropolitan Petar v Mitreski [2012] NSWSC 16
New South Wales v Commonwealth (1926) 38 CLR 74
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Re Eighmie; Colbourne v Wilks [1935] Ch 524
Re Manser; Attorney-General v Lucas [1905] 1 Ch 68
Re Vaughan; Vaughan v Thomas (1886) 33 Ch D 187
Registrar of Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145
Scottish Burial Reform & Cremation Society Ltd v Glasgow Corporation [1968] AC 138
Tomlin v Ford Credit Australia Ltd [2005] NSWSC 540
Wellington Capital Ltd v Australian Securities and Investments Commission (2014) 254 CLR 288
Western Australia v Ward (2002) 213 CLR 1
Williams v Attorney-General (NSW) (1913) 16 CLR 404

Texts Cited:
Heydon, J D, Leeming, M J and Turner, P G, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths)
Murray, L A, “Cemeteries in Nineteenth-Century New South Wales: Landscapes of Memory and Identity” (PhD Thesis, 2001, University of Sydney) (Permalink A, The Constitution of New South Wales (2004, The Federation Press)

Category: Principal judgment
Parties: Rookwood General Cemeteries Reserve Land Manager (Plaintiff)
Attorney-General for New South Wales (Defendant)
Representation:
Counsel:
AP Cheshire SC/A Oakes (Plaintiff)
P Herzfeld SC/C Langford (Defendant)
Solicitors:

File Number(s): 2021/353046
Publication restriction: Nil

Judgment

These are charitable trust proceedings. They concern a sum of money (more than $20 million in 2012) built up over the years from the operation of the Anglican burial ground at Sydney’s Rookwood Cemetery. The Cemetery (which was historically referred to as “the Necropolis” and then as the “Rookwood Necropolis”) was established in the 1860s. It is the largest cemetery in the Southern Hemisphere and still accounts for about 30% of Sydney’s burials.
The Cemetery is, and always has been, divided into different burial grounds for the use of different religious denominations. There is also a “General” burial ground for non-denominational burials. In the past, each burial ground had its own management structure and its own separate finances.
The questions which have led to these proceedings arise out of a change in the way in which the State Government regulates the Cemetery. Originally, the Cemetery was governed by its own Act of Parliament. There was a separate trustee body for each burial ground. Common facilities were managed by a joint committee made up of representatives of each group of trustees.
The Act was amended and re-enacted over time until it was finally repealed in 2009. In 2012, the trustee bodies of five of the Cemetery’s burial grounds were amalgamated (this did not include the Catholic burial ground, which maintained its own separate management body). Later legislation had the effect of formally converting the Cemetery into Crown land and abolishing any trusts over it.
The questions in these proceedings have arisen because the legislation made no provision (or, at least, no express provision) about the ownership and use of the moneys and other assets accumulated as a result of the operation of the affected portions of the Cemetery. The issue posed by these proceedings is what legal regime applies to those moneys and other assets.
The plaintiff (“the Manager”) is the successor of the trustee body formed by the amalgamation in 2012. It continues to manage the relevant portions of the Cemetery and it continues to hold the moneys and other assets originally built up by the five predecessor trustee bodies.
These proceedings only concern the moneys, and other assets, derived from the Anglican portion of the Cemetery. I will refer to those moneys and other assets as the “Anglican Cemetery Proceeds” in this judgment. Likewise, I will refer to the Anglican portion of the Cemetery as the “Anglican Cemetery Land”.

Issues for determination

The proceedings were initially constituted as judicial advice proceedings. But, when it became clear that declarations were to be sought as to the charitable status (or otherwise) of the Anglican Cemetery Proceeds, I thought that the proceedings should continue as inter partes proceedings. The Attorney-General was then joined as the defendant.
The first question to be determined is the trust status of the Anglican Cemetery Proceeds. Although the Cemetery has always been regulated by statute, the Manager’s contention is that the effect of the former Act of Parliament was to subject the Anglican Cemetery Land, and the Proceeds derived from it, to a charitable trust enforceable in equity. So far as the Land is concerned, that trust has been extinguished; but it continues, according to the Manager’s contention, to apply to the Proceeds. The Attorney-General takes the same view. Nevertheless, both parties accept that the Court must be persuaded that this agreed view is correct.
If the Court is satisfied that the Anglican Cemetery Proceeds are held under the terms of a charitable trust, questions arise as to how they should be managed in future. In particular, the Manager has pooled the assets of the five amalgamated trust bodies so that the Anglican Cemetery Proceeds are no longer held separately. And it is now proposed to consolidate the management and operation of the five portions of the Cemetery, including the Anglican portion, and the associated assets and liabilities, into a broader management body which will be responsible for Crown cemeteries throughout New South Wales. The Manager has proposed a series of questions upon which judicial advice is sought.

Chronology

The question of the charitable status of the Anglican Cemetery Proceeds is essentially one of construction of various statutory provisions and statutory instruments. There are no factual issues to be resolved. Some historical evidence was tendered about the operations of the Rookwood Cemetery, and the Anglican portion of it in particular. None of this was the subject of any contest.
Earlier this year, Leeming JA, when sitting at first instance in the Common Law Division, had to consider the history of Old Dubbo Cemetery, which was established in the 1870s: Carr v Carr [2022] NSWSC 166. In preparing his judgment, his Honour made use of a University of Sydney PhD thesis authored by Lisa Anne Murray. Dr Murray’s thesis was published in August 2001 and is entitled “Cemeteries in Nineteenth-Century New South Wales: Landscapes of Memory and Identity” (Permalink It is clearly the product of extensive historical research into the establishment of cemeteries in colonial New South Wales.
Although the thesis was not in evidence before his Honour, his Honour considered that he could take judicial notice of the fruit of Dr Murray’s historical research: see Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196. In the present case, I propose to take the same approach. Dr Murray’s description of events is consistent with, but provides more detail than, the historical material which is before me. While it may not necessarily be essential on any particular issue, it provides useful background to the discussion. As I will not be making any substantive orders when I hand down this judgment, if either party has any objection to the use I have made of Dr Murray’s thesis, I will consider that objection before proceeding further.
The legal issues raised in these proceedings concern the potential application of the Court’s charitable trust jurisdiction to land, and the proceeds of the use of land, held for the purpose of operating a public cemetery. In this part of the judgment, I provide a chronological summary of the relevant legislation by way of background. I then deal with the development of the Cemetery before setting out the facts about the Anglican portion.
In dealing with the legislation, it is convenient to begin with the prerogative powers and legislation applying to Crown lands generally. I will then turn to cemeteries in particular. I deal first with the use of Crown land for cemeteries under the prerogative-based system which operated until 1861. Next I deal with the bespoke legislation which governed Rookwood Cemetery from 1867 to 2009 and then other State cemetery legislation.

Crown land: prerogative power and general legislation

In his judgment in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 (the Randwick Racecourse case) Windeyer J described (at 71-77) the way in which the setting aside and use of Crown lands for public purposes developed in New South Wales following settlement. Other historical analyses may be found in the joint judgment of Gaudron, McHugh, Gummow, Hayne and Callinan JJ in the Bathurst City Council case (Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566) at [58]-[59], and in the judgment of Gageler J in the Berrima Gaol case (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232) at [101]-[136].
Royal prerogative: From settlement, all lands in the Colony were, until alienated, vested in the Crown. The Governor was authorised to make grants of land on the Crown’s behalf. Instructions given to the Governor also required him to reserve, out of the lands available for alienation, sufficient lands for public purposes. The instructions contained a list of those purposes, a representative example being quoted by Windeyer J in the Randwick Racecourse case at 71-2.
Lands reserved for public purposes in this way remained in the ownership, and under the control, of the Crown. No formal conveyancing steps were required; arrangements for the management and use of the land and its revenue could be made, and altered, by executive action. But the Governors also made some specific grants of land to trustees for public purposes. Examples include the grants to the Clergy and School Lands Corporation referred to at [33]-[42] below. Other examples are given by Windeyer J in the Randwick Racecourse case at 74.
In reserving lands for public use, and in making grants, the Governors were acting under authority from the Crown in right of the United Kingdom (or, the “Imperial Crown”). Legislative authority over such lands and supervision of the exercise of the prerogative remained with the Imperial Parliament in London.
That authority was exercised in the Australian Colonies Waste Lands Act 1842, 5 & 6 Vict, c 36 (Imp) (“1842 Waste Lands Act”). That Act was passed in order to regulate, and restrict, future grants of land. The background to its enactment appears to have been the adoption of a policy, starting in the 1830s, that surplus Crown land be sold off to settlers on the open market rather than allocated by the Governors on a discretionary basis (see Windeyer J in the Randwick Racecourse case at 72-3).
For the purposes of the Act, “waste lands” were defined as lands which had not already been granted, or contracted to be granted, or “dedicated and set apart for some public use” (s 23). And s 3 provided, so far as future grants were concerned, that nothing should prevent the Crown from excepting from sale such lands as might be required for a list of specified public purposes, or from reserving those lands to itself or disposing of them in such manner as the Crown, acting in the public interest, might see fit.
Constitution Statute 1855 (Imp): One of the issues involved in the sometimes fractious debate between Sydney and London about responsible government was control over “waste lands”: see Anne Twomey, The Constitution of New South Wales (The Federation Press, 2004) at 4 ff. This was addressed in s 2 of the Constitution Statute 1855 (Imp) (or, as it is otherwise known, the New South Wales Constitution Act 1855, 18 & 19 Vict, c 54 (Imp)). That section provided that “the entire management and control of the waste lands belonging to the Crown” and the appropriation of revenue derived from those lands, were to pass to the Colonial Parliament. The term “waste lands” was not defined in the Act, and, as will be seen below, there was later some debate about its scope.
Public Parks Act 1854: Meanwhile, the Governor and Legislative Council had enacted the Public Parks Act 1854. That Act provided for the management of public parklands by boards of trustees. It was to apply both to parklands under existing grants and parklands to be established in the future.
Section 1 applied to the trustees of any lands the subject of an existing grant from the Governor “for the purpose of recreation convenience health and enjoyment” of inhabitants of the Colony. Such trustees were constituted as a body corporate, with perpetual succession, having the right to sue and be sued in their corporate name, and having the capability of holding the relevant land in trust in perpetuity for the purposes for which the land had been granted.
Section 2 dealt with the future establishment of public parklands. The Governor was empowered to appoint a board of trustees of any lands dedicated (whether previously or subsequently) for the relevant purpose, whereupon the provisions of s 1 would apply without the need for any grant.
The Act gave the Governor a power to appoint a replacement if any trustee were to die, resign, refuse to act, become incapable of acting, or be absent from the Colony for more than twelve months (s 3). There was no power (or, at least, no express power) of removal. The trustees were otherwise permitted to regulate their own internal affairs such as meetings (s 4).
The Act conferred on the trustees “the powers of absolute owners (except for the purposes of alienation)” over the relevant land (s 5). The Act contained no other limitation on the trustees’ powers or prescription on the way in which the land was to be managed.
The Act also gave the trustees power to make rules and regulations for regulating the “use and enjoyment” of the land. That power specifically extended to protecting the plant life on the land and the removal of trespassers. The trustees were also empowered to impose fines for breach of the rules and regulations. All of this was subject to approval by the Governor and Executive Council (s 5). The police force was to assist the trustees by removing trespassers and other troublemakers from the land (s 6). Proceedings for the recovery of fines could be taken by the trustees, and moneys recovered were to be paid to the trustees “for the purposes of their trust” (or, where the recovery proceedings were brought by anyone else, the trustees were to receive half): s 7.
Crown Lands Alienation Act 1861 (“1861 Crown Lands Act”): This Act was the first general Colonial legislation on the alienation of Crown lands for public purposes. The Act applied to all Crown lands which were not the subject of a dedication, grant, or contract for a grant. Such lands could not be alienated except under the provisions of the Act (s 3).
Section 5 created a system whereby land could be formally set aside for public purposes, by executive action, in the form of a notice or proclamation published by the Governor, with the advice of the Executive Council, in the Government Gazette. This set a pattern for future legislation, and, for simplicity, in the rest of this judgment I will refer to the process as one of the Governor publishing such a notice or proclamation. I will similarly refer to powers of management over Crown land conferred by statute on the Governor and the Executive Council as powers conferred on the Governor.
Section 5 provided that the Governor might, by notice, “reserve or dedicate” Crown land for a specified public purpose. Upon publication, the lands would “become and be” so reserved or dedicated to that purpose. They might then be the subject of a grant for that purpose in fee simple. Section 5 contained a list of the permissible public purposes, which were similar to those contained in the Governor’s instructions and the reservation provisions of the 1842 Waste Lands Act.
The term “dedication” was, at common law, confined to public roads. But, in the context of the Act and its predecessors, the term clearly had a wider meaning: namely, the devotion of land to a public purpose in a way which was binding on all, including the Executive. But the Act also spoke of “reservation” and this introduced uncertainty. Originally, the reservation of land had simply referred to keeping the land back so that it would not be sold. But “reservation” in the Act seemed to refer to a process akin to dedication (see Windeyer J in the Randwick Racecourse case, 102 CLR at 77). As we will see, in the end, the language of reservation seems, perhaps confusingly given its origins, to have taken over the field.
Clergy and School Lands Corporation case: The Clergy and School Lands Corporation was established in 1826 by way of charter, issued as letters patent under the public seal of the Colony, in accordance with instructions given to the Governor. It was a corporation aggregate, consisting of a body of individual trustees, but with corporate status, including the right to sue and perpetual succession. Its official corporate name was the “Trustees of the Clergy and School Lands in the Colony of New South Wales”.

The Corporation was established as a vehicle for holding and administering land for religious and educational purposes in New South Wales. Grants were thereafter made by the Governor to the Corporation on terms that the land would be used and administered in accordance with the terms of the letters patent. The lands were not directly used for religious or education purposes. Rather, they functioned as a glebe: they were rented out so as to produce income which could be applied to those purposes.
The charter contained express provision for the Corporation to be dissolved if that were considered “expedient”. On this happening, any lands vested in the corporation would vest in the Crown, subject to any mortgages or contracts for the sale thereof, to be held, applied, and disposed of in such manner as should “appear most conducive to the maintenance and promotion of religion and the education of youth in the Colony”.
The Corporation was duly dissolved by letters patent in 1833. Following the dissolution, the income from the lands, which had now revested in the Crown, was paid to the Colonial Treasurer. The Treasurer held the moneys apart from Consolidated Revenue of the Colony and paid the income to church (and presumably educational) bodies. This was done under the instructions of the Secretary for State for the Colonies in London. It was considered, consistently with the then constitutional position, that the lands, and the income derived from them, was held by the Crown of the United Kingdom.
In 1864, following the coming of responsible government, this arrangement was challenged by the Attorney-General, acting on behalf of the Colonial Executive. The questions raised were referred for determination by the Full Court of the Supreme Court of New South Wales (Attorney-General (NSW) v Eagar (1864) 3 SCR (NSW) 234).
The Attorney-General argued that the effect of the land revesting in the Crown in 1833 had been to return it to the status of “waste lands” which might be disposed of by the Executive as it saw fit. As “waste lands”, those lands had passed under the control, both executive and legislative, of the Colony. This argument was rejected by the Court. The Court held that the lands formerly held by the Corporation were not “waste lands”, and the revenue from them did not form part of Consolidated Revenue. Rather, the lands, and the income from them, were held by the Crown (presumably, the Crown in right of the United Kingdom) on trust for religious and educational purposes.
Stephen CJ gave the leading judgment. The other members of the Full Court reasoned similarly.
His Honour accepted that the charter, taken on its own, merely provided for the incorporation of the Trustees as a body corporate; it did not of itself impose any trust obligations on the land. But the grants did, by providing that the land was to be held by the Trustees for the purposes referred to in the charter.
In his Honour’s view, the effect was to create a charitable trust of the type enforceable in equity, and, upon the land being revested in the Crown, the Crown became trustee of that land in exactly the same way a subject would have. The purposes were widely defined, but this was permissible. His Honour cited already longstanding authority for the proposition that the court would not permit property, once dedicated to charitable purposes, to be applied to other purposes.
Because of this, it followed, in his Honour’s view, that the lands in question were not “waste lands” for the purposes of the 1842 Waste Lands Act. Nor were they “waste lands” for the purposes of the Constitution Statute 1855 (see at 260). Thus, it seemed, they fell outside both the control of the Colonial Executive and the authority of the Colonial Parliament.
Crown Lands Act 1884 (“1884 Crown Lands Act”): This Act replaced several statutes, including the 1861 Act. It adopted the same basic structure as the repealed Act. Crown land could only be alienated in accordance with its terms (s 5). The new Act also carried forward the provisions allowing the Governor to dedicate or reserve land for specified public purposes by issuing a formal notice to that effect (s 104).
But, in a new departure, s 105 provided for a dedication or reservation to be rededicated to other purposes. This was done by the publication of a proposal for rededication in the Gazette, which was then laid before Parliament. If not disallowed by Parliament, the Governor was entitled to proceed by proclaiming such revocation or fresh dedication or reservation, and carrying out such conveyancing steps, as were necessary to give effect to the proposal.
Section 105 specified various circumstances where the power could be exercised. These were where (in the Governor’s opinion):

the purposes for which the dedication or reservation was made had “failed”, wholly or in part;

there was “any doubt or uncertainty as to such purposes”;

the “trusts annexed to any land dedicated or reserved” had failed or could not reasonably be carried out; or

it was expedient in the public interest to resume the land so dedicated or reserved land for other land of “equivalent value or nearly so” to be dedicated or reserved “on similar trusts or for like purposes”.

The Governor was also, by s 106, empowered to appoint a board of individuals as trustees “charged with the care and management” of Crown land that had been dedicated or reserved pursuant to the Act. This power was somewhat wider in its terms than the equivalent power under the Public Parks Act 1854. The Governor might issue a grant to the trustees conferring such estate, and such powers, on them as he might think fit. The Governor was empowered to remove and replace any trustees (whether appointed under the Act “or otherwise”) as well as to fill vacancies. Alternatively, the Governor could, “without placing [the] land in trust”, make rules and regulations for its “management and control”. Those rules and regulations might impose fines up to a statutory limit and were to have the force of law.
Public Parks Acts 1884, 1902 and 1912: The Public Parks Act 1854 was replaced by the Public Parks Act 1884. That Act substantially had the same application as the former Act and worked in the same way, except that the Governor was empowered to appoint a local Council as a trustee of the land in question, rather than a board of individual trustees (s 5). The Act also dealt specifically in s 6 with the “estate” conferred on trustees under the Act:

Trustees shall for all purposes of this Act and of any by-law thereunder be deemed to hold an estate in fee simple in the land for which they were appointed but shall not be capable of alienating charging or in any way disposing of such land or any part thereof.

Substantially the same provisions were carried forward when the Act was repealed and replaced by the Public Parks Act 1902, and again when that Act was repealed and replaced by the Public Parks Act 1912. In the rest of this judgment, I will refer to the 1854, 1884, 1902 and 1912 Acts collectively as the “Public Parks Act”.
Public Trusts Act 1897: By the turn of the century, land dedicated or reserved under the Crown Lands Act was still not, apart from the terms of any consequent grant which might have been made, the subject of any detailed statutory regulation so far as its management, and the use of funds derived from it, were concerned. The 1861 Act did not address this subject at all and the 1884 Act hardly touched it either (apart from the Governor’s regulation-making power).
This situation led to the enactment of the Public Trusts Act 1897. As the second reading speech (New South Wales, Parliamentary Debates, Legislative Assembly, 26 May 1897, 667 (Mr Carruthers)) records:

The chief object of this measure is to provide that in the case of trusts for public purposes, where land is held by trustees, they shall be subject to some controlling influence … At present a large area of country is dedicated to certain public purposes. Portions of it are under the control of trustees. But these trustees may proceed at their own sweet will in regard to the management of the public estate. Now, it is recognised that it is better to have some controlling influence over these bodies, and to require them to furnish, at certain set periods, a report of their management and of their financial proceedings.

The Act applied to land dedicated, reserved, or “set apart”, both before and after the date of commencement of the Act, “for any public purpose, under any Act”. It therefore applied to land under the Crown Lands Act and the Public Parks Act. The Governor was empowered, by notice published in the Gazette, to vest such land in trustees, for such estate and subject to such terms and conditions as the Governor should think fit (s 3).
Natural or corporate persons, or a local Council, could be appointed trustee(s) of land falling within the purview of the Act. Any trustees to whom the Public Trusts Act applied were subjected to specified obligations to the responsible Minister. These included: an obligation regularly to report to the Minister about the management of the land (s 5); an obligation to permit inspection of books and documents by the Minister or an authorised delegate (s 6); and an obligation to permit inspection of the land by the Minister or an authorised delegate (s 9).
The Act appears not to have extended to trusts of land consequent upon grant (that is, a grant that was not preceded by a dedication or reservation under the Crown Lands Act or the Public Parks Act). Private trustees holding under a non-statutory grant, accordingly, fell outside of the Act’s ambit.
Government House case: This case arose out of a political controversy about the use of Government House in Sydney. Government House had been built in the 1840s in part of the Domain reserved by Governor Macquarie. In 1900, pursuant to arrangements between the New South Wales Government and the Commonwealth Government, the Governor moved out and Government House was used as the Sydney residence for the Governor-General. This arrangement ceased in 1912. The Premier thereupon announced that the use of the land (or at least part of it) would change. The grounds were thrown open to use by the public and plans were made for the stables to be converted into the Conservatorium of Music.
Relator proceedings were brought to challenge these actions. This Court held (Attorney-General (NSW) v Williams (1913) 13 SR (NSW) 295) that the Government House land was dedicated to a public purpose, namely the provision of a residence for the Governor. Use for other purposes by the Executive was thus held to be unlawful.
On appeal, the High Court overturned that decision (Williams v Attorney-General (NSW) (1913) 16 CLR 404). It was argued, based on Attorney-General (NSW) v Eagar that, although there had been no formal grant or dedication, in substance the lands had been dedicated to a public use and were in effect the subject of a charitable trust. This argument was rejected by the Court. The Court noted that, if indeed the land had been dedicated to the public purpose alleged, that would have been a public purpose of the Crown in right of the United Kingdom, which was not represented in the proceedings. But, in any event, the actions of the Colonial Government amounted to nothing more than making arrangements to use the land as it saw fit. No dedication had taken place and no trust had been established.
Furthermore, the Court ruled that the land in question formed part of the “waste lands” which had passed to the control of the Colonial Executive with the coming of responsible government. As Barton ACJ explained, the phrase “waste lands” was broader in the 1842 Waste Lands Act than in the Constitution Statute 1855 (see at 425-7). In the latter, “waste lands” was confined to lands of which the Crown had become owner “and had not made the subject of any proprietary right on the part of any citizen”. Finally, even if the lands were not “waste lands”, the Court held that they did not fall outside of the legislative competence of the Colonial (now State) Parliament.
An appeal to the Privy Council was dismissed: Attorney-General (NSW) v Williams (1915) 19 CLR 343. The dismissal was primarily on procedural grounds, though the Board expressed support for the view that the use of the land had been “more consistent with a bare temporary permission or a revocable licence” than a dedication, and, accordingly, were “in entire accord with the High Court … in thinking that no such case was made out and that no trust was declared and no charity established” (at 346).
Crown Lands Consolidation Act 1913 (“1913 Crown Lands Act”): This Act replaced the 1884 Act. As with its predecessor, it prohibited the alienation of Crown land except in accordance with its provisions (s 6).
The Act carried forward from its predecessor provisions empowering the Governor, by proclamation, to dedicate land for specified public purposes and to grant the land in fee simple accordingly (s 24), and to revoke dedications previously made (s 25). It was specifically provided that a dedication could be revoked notwithstanding that the land in question might have been the subject of a grant. The effect of revocation, where the land was not re-dedicated for another purpose, was to revest the land in the Crown. This made it clear that the dedication could be revoked without the need to rededicate the land to some other public purpose.
So far as management of the land was concerned, s 26 of the Act carried forward the provisions of its predecessor which empowered the Governor to appoint a board of trustees or make rules and regulations governing the land without placing it in trust. The Act did not disturb the Public Trusts Act, which continued to operate alongside it. Nor did the Act affect the Public Parks Act.
Garden Island case: Garden Island in Sydney Harbour had been Crown land which was dedicated as a naval depot in 1865-1866 under the 1861 Act. It was used by the Government of the United Kingdom for the purposes of the Royal Navy. In 1913, following the establishment of the Royal Australian Navy, the United Kingdom Government handed over control to the Commonwealth Government.
In 1923, the New South Wales Government decided to resume legal control of the island. A formal notice of revocation of the 1865-1866 dedications was published under s 25 of the 1913 Crown Lands Act.
The Commonwealth contested the validity of the revocation. Among other things, it was said that the dedication had been a dedication in perpetuity. The State brought ejectment proceedings in the High Court (New South Wales v Commonwealth (1926) 38 CLR 74).
The Commonwealth’s argument was rejected by the majority of the High Court (Knox CJ, Gavan Duffy, Rich and Starke JJ). The majority held (at 83, citations omitted):

The Island formed part of the lands of the Crown in New South Wales, and was unalienated at the time of the passing of the Constitution Act for New South Wales in 1855. It was part of the waste lands of the Crown, the entire management and control whereof was vested in the Legislature of New South Wales by force of sec. 2 of that Act. This grant of legislative power to New South Wales gives it an authority in respect of the waste lands of the Crown in New South Wales “as plenary and as ample … as the Imperial Parliament in the plenitude of its power possessed and could bestow”. The constitutional validity of the Crown Lands Alienation Act of 1861 and of the Crown Lands Consolidation Act 1913 is indisputable.

Crown Lands and Other Acts (Reserves) Amendment Act 1974 (“1974 Crown Lands Act”): This Act inserted into the 1913 Act a new Part 3B which replaced the existing s 26 with comprehensive provisions for the management of land devoted to public purposes. It covered not only land dedicated or reserved under Crown Lands legislation (including the Public Trusts Act), but also lands managed by trustees under the Public Parks Act. The latter two Acts were repealed.
For the purposes of Part 3B, land which was so held was defined as a “reserve” (s 37M(1)). Each reserve was to be managed by a group of individuals as trustees. The management provisions of Part 3B were similar in outline to those in the Public Parks Act and the Public Trusts Act, but generally more prescriptive and more detailed.
As in the predecessor legislation, s 37R charged the trustees with the “care, control and management of the reserve”. To this end, s 37T obliged the trustees to furnish at prescribed intervals financial statements arising from the management of the reserve. Section 37CC conferred on the Minister or an authorised delegate a power of inspection of a reserve. New provisions empowered the Minister to cause a plan of management to be prepared with respect to any reserve (s 37U(1)); the trustees were then obliged to carry it out (s 37U(8)).
Once more, provision was made for the creation of by-laws by the Governor. Section 37II empowered the Governor to make by-laws with respect to a wide number of matters relevant to the administration and maintenance of a reserve. Those matters included by-laws regulating: “the care, control and management of any reserve” (s 37II(1)(a)); the operation of trustees’ meetings (s 37II(1)(c)); the preservation of a reserve’s environs (ss 37II(1)(h)-(m)); the imposition of charges on entry onto a reserve (s 37II(1)(n)); and the appointment and removal of rangers (s 37II(1)(r)). Any money recovered from an offender following prosecution for a breach of by-law was to be paid to the reserve’s trustees for “the purposes of their trust” (s 37II(5)).
Section 37O empowered the Minister of appoint a board of no less than three individuals as trustees of a reserve, and thereafter to fill any vacancies. Individual trustees could not be more than 70 years old. By s 37Q, the Minister could declare the trustees to be a corporation. Alternatively, the Minister might appoint a council or any other corporation as the trustee of the reserve (s 37P).
A trustee’s office was to be vacated automatically in certain circumstances, including, in the case of an individual, on attaining the age of 70 (s 37S(1)(f)). The Minister had overarching power to remove any trustee “for any cause which to the Minister seems sufficient” (s 37S(3)).
Section 37X dealt with the estate of the trustees. Subsection (1) provided that, except that to the extent that they might already have an estate in fee simple in the reserve, the trustees would be deemed to have such an estate, but for the purposes only of Part 3B and of any by-law. Subsection (2) provided that the trustees were not capable of alienating, charging, leasing or licensing the reserve or any part of it, except in accordance with Division 3 (see below). A trustee’s estate would be divested on the trustee’s removal or upon the revocation on the setting apart, dedication or reservation of the reserve (subsections (3) and (4)).
Subsection (1) thus expressly recognised that the trustees of a reserve might already have an estate in fee simple in the land. No doubt this reflected the fact that reserves under the 1913 Act and its predecessors might have been the subject of a grant. Land under the Public Parks Act might also have been the subject of a grant, whether originally alienated before or after 1854. But while subsection (1) left the trustees’ estate under a grant undisturbed, subsections (2), (3) and (4) applied to any trustees, whether holding under a grant or not. Thus such trustees’ estates were subjected to the provisions of the Act.
Section 37VV dealt with the transfer of other assets and liabilities consequent upon the appointment and removal of trustees. Subsection (2) provided, where a group of individual trustees was appointed under s 37O, or a corporate trustee was appointed under s 37P, for the automatic transfer of the assets and liabilities of any existing trustees to the newly appointed trustee body. The subsection made equivalent provision in the case of the incorporation of a group of individual trustees as a body corporate under s 37Q. Where one of a group of trustees holding office under s 37O was removed, there was an equivalent provision for the transfer of the assets and liabilities of the previous group of trustees to the new group. But subs (8) provided that where a former trustee of the reserve would otherwise be personally liable for breach of trust for which that trustee would have had no right of indemnity for any of the funds of the reserve’s trustees, nothing in s 37VV took away that trustee’s personal liability nor imposed it on any other person.

Division 3 of Part 3B dealt with sales, mortgages, leases and other dispositions of reserve land. Sections 37KK and 37MM provided that the trustees had power to enter into such transactions with the consent of the Minister, in accordance with the terms of that consent, and not otherwise.
Section 37PP provided that the proceeds of a transaction under the Division were to be held by the trustees after the payment of costs, expenses and encumbrances, for the “general purposes of the trust”. But this was subject to any direction the Minister might give as to the application of the proceeds.
It was also expressly recognised for the purposes of Division 3 that the reserve land might be held under a grant. Section 37JJ(4) provided that the powers of trustees and of the Minister under Division 3 were not affected by anything contained in any grant previously issued for the reserve. Section 37QQ provided that lands conveyed pursuant to Division 3 were to vest in the recipient free from any trust.
In 1964, s 24 of the 1913 Act had been amended so as to empower the Minister, by notification, to amalgamate one parcel of dedicated Crown land with another (Crown Lands (Amendment) Act 1964 s 7). The effect of such an amalgamation was that the land being amalgamated was to be governed by the dedication, and the terms of any grant, applying to the other land.
The effect of such an amalgamation was also dealt with by s 37VV of the 1913 Act. The assets and liabilities of the reserve trust whose land was being amalgamated were transferred to the receiving reserve trust. Where part only of the land held by a reserve trust was being amalgamated, the donor trust and the recipient trust were to apportion the assets and liabilities of the donor trust by agreement; to the extent agreement could not be reached, the apportionment was to be determined by the Minster (see subss (2), (3), (5)).
The 1913 Act still permitted lands dedicated under s 24 to be the subject of a subsequent grant in fee simple. This practice appears to have fallen into disuse. Section 24 had by 1985 been amended to remove reference to it.
Crown Lands Act 1989 (“1989 Crown Land Act”): This Act repealed and replaced the 1913 Act, including the 1974 amendments which had swept up the Public Trusts Act 1897 and the Public Parks Act. The prohibition in the predecessor Act on dealing with land within the purview of the Act except in accordance with its terms was carried forward by s 6.
Part 5 of the 1989 Act dealt with the process of dedication of Crown lands, and the management of such lands. The dedication provisions largely reflected the provisions of the 1913 Act. In particular, they provided for dedication by Ministerial notification (s 80); amalgamation of dedicated land into other dedicated land (s 83); and revocation of dedications, resulting, if there were no rededication, in the land revesting in the Crown (s 84). Assets and liabilities associated with the reserve trust whose land was being amalgamated were transferred to the recipient reserve trust in the same manner as under s 37VV of the 1913 Act (s 125).
The 1989 Act did, however, make substantial changes to the trusteeship provisions of the 1913 Act. The practice of appointing natural persons as trustees of dedicated or reserved land was discontinued. Instead, s 92 of the Act provided that such land was to be managed by a “reserve trust” appointed by the Minister. A reserve trust could be managed: pursuant to section 93 of the 1989 Act, by a “trust board” of between 3-7 persons; pursuant to s 95(1)(b) or section 95(1)(c), by a corporation; or, pursuant to s 95(1)(a), by a local Council. Any such reserve trust could be dissolved by the Minister upon publication of a notification to that effect in the Gazette (s 92(3)).
Where a reserve trust had no members appointed to its trust board, or where a corporation had vacated its office as manager of a reserve trust, the Minister was empowered to appoint an administrator to the reserve trust (s 117(a)-(b)). Any administrator so appointed was tasked with managing the trust’s affairs for so long as the appointment continued (s 118).
Section 100 carried forward the qualifications attached to the estate held by trustees in dedicated land. As with its predecessor, the Act recognised the possibility that land subject to its provisions might have been the subject of a grant. Section 99(2), however, went further, by providing that nothing in a Crown grant should affect the powers of the Minister or the trustee of the reserve (cf s 37JJ(4) of the former Act (see [77] above), which was limited to dealings).
The 1989 Act also prescribed the manner in which money received during the course of managing dedicated or reserved land was to be applied (previously dealt with by s 37PP of the 1913 Act). But s 106 of the 1989 Act expanded upon the previous version of this section by empowering the Minister to direct a transfer of a reserve trust’s assets to a different reserve trust or to the Consolidated Fund.
Section 107 of the 1989 Act also seems to have had its origin in s 37PP of the 1913 Act. Section 107 empowered the Minister to make directions as to the application of a reserve trust’s income and revenue toward the “gradual extinction of any debt” (s 107(1)). Any such direction was binding on the reserve trust’s managers (s 107(2)). It also empowered a reserve trust, in the absence of a ministerial direction as to the application of income, to invest its funds “as authorised by” the Trustee Act 1925 (s 107(3)).
Section 112 again empowered the Minister to make a plan of management for a “reserve”; and section 114 again obliged a trustee to adhere to any such plan of management. Obligations were placed on the managers of a reserve trust to report regularly to the Minister on the financial affairs of the reserve trust (s 122(1)-(3)). A correlative right was conferred upon the Minister and his or her authorised delegates to inspect a reserve trust’s books and to audit the records of the reserve trust (s 123(1)-(3)). The Governor’s power to make by-laws with respect to the matters previously enumerated in s 37II of the 1913 Act was carried forward by s 128 of the 1989 Act.
Upon the 1989 Act coming into force, all trustees of reserves had to be corporate reserve trusts under the Act. The transitional provisions (Sch 8, cll 4-6) dealt with this in a way which was analogous to s 37VV of the former Act (see [74] above). On the commencement of Part 5, a reserve trust was taken to have been constituted for each reserve. The land and any other property held by the former trustees was transferred, by means of the deemed application of s 125, to the new reserve trust. The transfer was subject to “such modifications” as might be necessary or as the Minister might direct. Later, s 111A was inserted into the Act to give the same effect as between a reserve trust dissolved under s 92(3) and the reserve trust which replaced it.
Crown Land Management Act 2016 (“2016 Crown Lands Act”): This Act repealed and replaced the 1989 Act. The new Act makes a further structural change to the Crown land system. Instead of reserve land being vested in, and managed by, a reserve trust, the land is now vested directly in the Crown and managed by a “statutory land manager”. Like the former reserve trusts, statutory land managers under the Act are corporate bodies which may be internally administered in a variety of ways according to the method selected by the Minister (s 3.3).
Like its predecessor legislation, the Act recognises that it might apply to land which had originally been the subject of a grant. But, rather than simply providing that the grant should not limit the powers of the Minister, as in s 99 of the 1989 Act, the 2016 Act provides that, upon land becoming Crown land to which the Act applied, it is “freed and discharged from all estates, interests, trusts or obligations” (s 1.10(2)). The extinguishment is subject to some exceptions, but relevantly only those contained in dedications or reservations of the land, or estates, interests, trusts, or obligations continued over the land by the provision or declaration under which the land became Crown land (subparagraphs (c) and (d) of s 1.10(3)).
Under the transitional provisions, from the commencement date of the 2016 Act (1 July 2018) all land held by reserve trusts constituted under s 92(1) of the 1989 Act became Crown land for the purposes of the 2016 Act (sch 7, cl 6.1(b)). The reserve trusts were reconstituted as statutory land managers (sch 7, cl 11.4, quoted below). Further provisions, which I discuss in more detail below, effected the transfer of other assets and liabilities of the reserve trust to the newly constituted statutory land manager.
Conversion to Crown land resulted in extinguishment of any trusts in the land under s 1.10(2). Furthermore, cl 11.2 of sch 7 (quoted below) expressly provided that any trusts over the land were abolished.
Section 3.16 of the 2016 Act expands upon the Ministerial control of moneys derived from dedicated or reserved land which featured in the 1989 Act. That section particularises the “permitted purpose[s]” to which directed income could be applied. As expressed in s 3.16(3) of the 2016 Act, those purposes include the making of improvements to the land; the acquisition of easements over the land; the preparation of a plan of management; and any purpose referred to in s 2.12 of the Act (which includes, for example, any “purposes for which” the land in question has been “dedicated or reserved” (s 2.12(a)).

Use of Crown land for cemeteries under Governor’s prerogative powers

From the outset, the public purposes for which Crown land could be set aside in New South Wales included the burial of the dead. That purpose was expressly mentioned in the Governor’s instructions on the reservation of land (see the instruction quoted by Windeyer J in the Randwick Racecourse case at 72). That power of the Governor was expressly preserved by s 3 of the 1842 Waste Lands Act.
At pages 63-74 of her thesis, Dr Murray describes the way in which early cemeteries were established and administered. As she describes it, the first colonial cemeteries were products of necessity rather than strategic governmental planning. In the exercise of his powers under his instructions, the Governor simply selected sites for use as cemeteries, without granting or otherwise formally alienating the land. This seems to have been the model applied to the first public cemetery in the new colony, named “Cathedral Close” or the “Old Burial Ground”, which was situated at the current site of Town Hall.
Over time, it became usual for the Governor to grant land to religious denominations for use as a cemetery. In the period before the passage of the Church Act 1836, 6 & 7 Wm 4, c 71 (Imp), it was the Church of England that took responsibility, and received moneys for, the burial of the dead (irrespective of the deceased’s religious affiliation). That changed after 1836, by which time other religions and religious sects were able to bury their own dead according to their rites and receive income for doing so (in the event that they owned the land on which those rites were performed). Where a grant of land took place, Dr Murray records that it was usual for the relevant clergymen to appoint trustees from the faith for the purpose of managing the cemetery.
The system of grants was apparently quite inefficient. On average, the time between application for, and then issuance of, a grant of land for the purposes of a cemetery could stretch into years. To some extent, this problem was circumvented by the private purchase of lands by Churches for use as burial grounds, and by donations of land by parishioners for that purpose.

Necropolis legislation

Necropolis Act 1867 (“1867 Necropolis Act”): A plan of management produced for the Cemetery in 2014 described its origin in the following way:

The Haslem Creek Cemetery, as Rookwood was originally named, was the result of urban encroachment. By the 1840s, only half a century after the arrival of the First Fleet, Sydney’s third cemetery at Devonshire Street was facing the same fate as its predecessors: it was running out of space and suffering from urbanisation. ... In response the Government of New South Wales embarked on a great Victorian enterprise – mirrored only ten years earlier at Brookwood outside London – the search for a large enough parcel of land to bury Sydney’s dead in perpetuity. Preconditions included being far enough away from centres of population, appropriate soil, adequate drainage and convenient transportation. In 1862, four years after Haslem’s Creek station opened, this sparsely populated site was surveyed before being selected as Sydney’s new burial ground.

The bill for what became the 1867 Act was propounded by a private MP, Mr Wilson. His second reading speech in the Legislative Assembly was reported as saying:

[I]t was some years ago since the attention of the public of Sydney was directed to the impropriety of interring the dead within a city so densely populated as Sydney, and a portion of land, to the extent of [2]00 acres, was purchased from private parties by the Government at Haslem Creek as a public cemetery. By [s 5 of the 1861 Crown Lands Act], the Government was empowered to dedicate Crown lands for the purpose of a cemetery, and they had no authority to dedicate any other. Although burials had been prohibited in Sydney, and although ground had been allotted to the various denominations at Haslem Creek, one denomination at least had refused to take any active steps to improve the portion of ground allotted to them until the land was dedicated and set apart to them in a legal manner. It was consequently necessary to provide for this difficulty. The bill had been prepared for the purpose of improving land at Haslem Creek to be used for a cemetery. It provided for the appointment of trustees, defined their powers, and dealt with the regulations and fees necessary in the interment of the dead.

A similar explanation was given in the second reading speech in the Legislative Council.

Dr Murray’s thesis again fills in some extra background detail. In 1845 the Government began investigating the feasibility of a general (that is, interdenominational) cemetery on the then outskirts of Sydney. After two years of inquiry, the General Cemetery Act 1847 was passed, the preamble to which recounted that:

… it is intended by Her Majesty the Queen to grant certain land in the neighbourhood of the City of Sydney for the purposes of a General Cemetery for burying the dead of all denominations of religious faith to be called “The Necropolis” and it is expedient that the same should be vested in Trustees with perpetual succession who shall have power to regulate the use thereof and to do and cause to be done all such acts matters and things as may be requisite or proper for the preservation of such Cemetery and all buildings and erections thereon and of ornamenting the grounds thereof in a suitable manner.

The provisions of the 1847 Act were very similar to those of the later 1867 Act, described below, except that, in the 1847 Act, there was to be only one body of trustees responsible for the management of the cemetery. It also seems that different burial areas were not contemplated for different sects; rather all “Christians” would be buried together (see ss 1 and 10).
It was hoped that the creation of a new general cemetery would address the overcrowding problems experienced in the colony’s burial grounds up to that point. But the grant contemplated by the 1847 Act did not take place, and the Act remained a dead letter until the land at Haslem’s Creek was acquired and the 1867 Necropolis Act was passed twenty years later. In Dr Murray’s view, this was due to sectarian disputes, primarily between the Church of England and the Roman Catholic Church. It seems that those disputes arose partly from separatist religious sentiment, but also from a desire by each Church to control the administration of burial rites for, and to collect the fees accruing from, the burial of its own members.
Section 1 of the 1867 Act empowered the Governor, by proclamation published in the Gazette, to “dedicate and set apart” the Haslem’s Creek land for the purpose of the land being “used as a Cemetery”. Section 2 then empowered the Governor to set apart a separate portion of the Cemetery’s land for each of six specified religious denominations (including the Church of England, the Roman Catholic Church, Presbyterians, Methodists and Jews) for the purpose of the portion so set aside “being used as a Burial Ground for burying the dead of such denomination”. Equivalent provision for the General portion of the Cemetery was made by s 3. This was “to be used as a Burial Ground for burying the dead for whose burial none of the several portions of land set apart under section 2 may from any cause whatever be applicable”.
Sections 2 and 3 also provided for the Governor to appoint a board of individuals as trustees of each portion of the Cemetery so set aside. The trustees of each denominational portion were to belong to the denomination in question. Section 4 (set out in full below) provided for the vesting of each set-aside portion in the relevant board of trustees.
Section 5 empowered the Governor, by proclamation, to remove and replace any of the trustees. Requirements for meetings of the trustees and the keeping of minutes were laid down by s 19.
Section 6 provided that the trustees should, subject to the approval of the Governor, lay out the portion of land vested in them in an appropriate manner, and undertake any consequential landscaping and enclosures. Section 15 empowered the trustees to build a mortuary church or chapel for funeral rites and ceremonies for the burial of the dead. This was subject to the prior approval of the plans of any such building by the Governor. The trustees were empowered to borrow for this purpose, and to charge the fees and other borrowing expenses against income received by them.
Section 8 gave the trustees power to sell and grant exclusive rights of burial and rights to construct vaults or erect gravestones. The restrictions and conditions upon which this was to be done were to be determined by the trustees, but subject to prior approval by the Governor.
Section 9 empowered the trustees to charge fees for interment of bodies for the grant of such burial rights. The scale of fees and charges was to be fixed by the trustees; that scale required approval from the Governor and was to be notified in the Gazette.
Section 12 dealt with religious services in the denominational portions of the Cemetery. The trustees were empowered to appoint a “recognised minister” of the denomination as chaplain to perform the burial services within their portion of the Cemetery. The chaplain was to be paid an annual stipend, not to exceed a statutory limit. Alternatively, the trustees might choose not to appoint a chaplain and instead to allow burials to be conducted by visiting ministers of the denomination, who were to be entitled to a fee fixed by the trustees (with the approval of the Governor). By s 7, any recognised minister of the denomination had the right to attend the Cemetery and conduct services, but was not entitled to any fee for doing so unless that was sanctioned by the trustees.
Section 18 dealt with regulations. It empowered the trustees (subject to approval from the Governor) to make rules and regulations “in respect of” the portion of the Cemetery vested in them. It also empowered them to do whatever was necessary for “carrying out the purposes of this Act” and in particular for siting graves and vaults and protecting buildings, monuments etc from destruction or damage. They were also empowered to prosecute anyone doing or causing any such damage. A proviso limited these powers so that they could not be used to interfere with performance of any religious ceremony conducted at a burial within the relevant portion of the Cemetery.

Sections 16 and 17 dealt with overall management and administration. The “business and general management” of the affairs of the Cemetery were to be placed in the hands of a secretary and such clerks as might be necessary, who were to be appointed by the Governor, subject to any regulations made by the trustees. The secretary, whom I will describe as the “general secretary”, was to receive all moneys payable under the Act or levied by the various boards of trustees (but was to keep a separate book of income and expenditure for each trustee board). An abstract of the accounts was to be verified annually by the general secretary before being sent to the Minister of Lands published in the Gazette. For “any matter arising with respect to interments” in any of the separate portions of the Cemetery not provided for by the Act or the regulations, the general secretary was to have power to act under the directions of the trustees in whom that portion was vested.
Section 14 provided that the fees, charges, and other income derived by the trustees was to be applied in a prescribed order. That order was:

meeting their expenses as trustees under the Act;

maintaining their portion of the Cemetery;

paying the stipend of the minister or ministers conducting burials in their portion of the Cemetery;

paying the salary of the Secretary, clerks and other officers “appointed to carry out this Act” (presumably there must have been some arrangement for these expenses to be shared between the different boards of trustees);

laying out and embellishing their portion of the Cemetery.

Sections 20 to 24 dealt with offences. Fines for anyone committing a nuisance or “wantonly or wilfully” damaging any monument or the like were imposed by ss 20 and 21. Damage, whether wilfully or wantonly or not, made the perpetrator liable to pay compensation either at the suit of the relevant trustees or the owner of the property damaged. To enforce the penalties, the Act conferred powers of apprehension and made provision for summary prosecution before a Justice of the Peace.
Necropolis Act Amendment Act 1884 (“1884 Necropolis Act”): This Act repealed the provisions of the 1867 Act (ss 16 and 17) concerning the appointment of a general secretary and clerks to manage and administer the Cemetery as a whole (see s 1). The operation of those provisions had been found inconvenient (see New South Wales, Parliamentary Debates, Legislative Assembly, 19 March 1884, 2377 (Mr Cohen)). Instead, s 2 of the Act conferred on each body of trustees “entire control and management” of their portion of the Cemetery. The duty to keep accounts and to provide annual reports to the Minister (for Justice) was transferred to them. The trustees were also empowered to appoint their own secretary or manager, and other officers, to assist them in the discharge of their functions.
Section 3 of the Act clarified the trustees’ powers to make rules and regulations, which were thought to be inadequate for their purposes (see New South Wales, Parliamentary Debates, Legislative Assembly, 19 March 1884, 2377-8 (Mr Cohen)). The section provided that regulations made by the Trustees might provide for: the performance of duties by the chaplain and by the secretary, manager and other officers appointed by the trustees; for the “regulation” of all persons employed in the Cemetery; for the “good order and government” of the Cemetery; and for the enforcement of any regulation by the imposition of a fine (not exceeding £10) for breach, which was to be recoverable in the manner prescribed by the regulations or otherwise under the summary procedures of the 1867 Act.
Section 4 of the Act went on to authorise the secretary or manager appointed by the trustees to prosecute any offence committed within the limits of the trustees’ portion of the Cemetery. This applied not only to offences under the Act but also any offences created by the regulations made by the trustees.
Necropolis (Additional Areas) Act 1893 (“1893 Necropolis Act”): This Act was apparently passed to bring under the 1867 Act an additional 577 acres dedicated for the Cemetery’s purposes in 1889 (see [156] below). The Act provided for the appointment of boards of trustees for two additional denominations and vested a specified portion of the additional land in each of the (now) eight boards of denominational trustees (in the case of the Church of England portion, at least, the land had already been set aside). The trustees were to hold the lands so vested “as burying grounds for burying the dead of their respective denominations” (s 3).
The Act went on to empower the Governor, by proclamation, to set apart as denominational or general burial grounds any land later reserved or dedicated for burial purposes. The denominations were not limited to the eight denominations mentioned in the Act, and if burial grounds for further denominations were set aside the Governor might also, by proclamation, appoint a corresponding body of trustees. The Governor was also empowered, on the application of a body of trustees, to adjust the boundaries of their burial ground, even by including parts of a burial ground already vested in the trustees for another denomination. The land so set apart was to vest in the relevant body of trustees.
The Act made the provisions of the 1867 and 1884 Acts applicable to the lands newly vested by the Act. Those Acts were also to apply to lands later vested in trustees pursuant to the powers conferred on the Governor under the 1893 Act.
Necropolis Act 1901 (“1901 Necropolis Act”): This Act was passed for statutory consolidation purposes. It repealed the 1867, 1884 and 1893 Acts, but expressly preserved proclamations, notifications, appointments and regulations made under those Acts by deeming them to have been made under the 1901 Act (ss 3-5). Section 7 expressly continued existing dedications of land for the purposes of the Cemetery and the vesting of portions of that land in the existing Trustees.
Sections 8 to 11 reflected the provisions of the 1867 and 1893 Acts for the setting aside of further portions of land for denominational burial grounds (s 8); for the adjustment of boundaries on the application of trustees and consequential vesting (or re-vesting) of additional parts of the Cemetery land in those trustees (s 10); and for the vesting of lands set apart by proclamation in the relevant trustees (s 11); and for the nature of the trusts on which the trustees were to hold the land (s 12, quoted below).
The remainder of the Act largely reflected the provisions of the 1867, 1884 and 1893 Acts. It re-enacted provisions: giving ministers of the relevant denomination a right to conduct burial services (s 13); empowering the Governor to appoint and remove trustees (s 14); prescribing the powers and duties of trustees (ss 15 and 16); empowering trustees to levy charges for burial plots and monuments and burial fees (s 17); prescribing the manner in which income was to be applied (s 18); requiring an annual report to the Minister containing an abstract of moneys received and expended by the Trustees (s 19); empowering the trustees to appoint a secretary or manager and other officers, and also to appoint a chaplain or prescribe fees for visiting ministers to undertake burials (ss 20 and 21); empowering the trustees to sell and grant rights of burial, construction of vaults and monuments etc (ss 24) and to construct mortuary churches and chapels (s 23); empowering them to make rules and regulations (s 26); prescribing rules for the meetings of trustees and keeping of minutes (s 27); and providing for offences and compensation for damage to monuments etc (ss 28 to 34).
Necropolis (Amendment) Act 1923 (“1923 Necropolis Act”): This Act provided for the establishment of a crematorium within the Cemetery. The Act empowered the Governor to set aside a specified area of land as the site for a crematorium within the area dedicated for the purposes of the Cemetery. It made provision for the appointment of trustees of the crematorium land along the same lines as the provisions of the 1901 Act governing the burial grounds.
The Act also provided, for the first time, a formal mechanism for undertaking and funding expenditure on “common areas” within the Cemetery. A new s 18A was inserted. Subsection (1) empowered the boards of trustees, individually or in combination, to use their funds for fencing, roads, paths, drains, plantations, and other works “necessary for the proper or more effective management” of the whole of the Cemetery (to which I will refer as “common works”). Subsection (2) empowered the Governor to appoint a joint committee of trustees, consisting of one representative from each separate board of trustees, to direct and control expenditure on such works. The committee was to make an estimate of such expenditure for each year, and was empowered to levy an assessment, with the approval of the Governor, on the income of each body of trustees (but not exceeding 10% of that income) in order to fund that expenditure (subsections (3) and (4)). Subsection (5) empowered the Minister to have the works carried out by the committee inspected, and to direct the committee to undertake repairs or maintenance of the common works.
Necropolis (Amendment) Act 1954 (“1954 Necropolis Act”): This Act expanded s 18A to give the joint committee power, with the approval of the Governor, to make regulations with respect to roads and paths under the committee’s care, control, or management. The powers of the trustees of the separate portions of the Cemetery, via a secretary or manager, to prosecute for offences under s 34 of the 1901 Act, were limited to offences or contravention of regulations made by those trustees.
Necropolis (Amendment) Act 1973 (“1973 Necropolis Act”): Among other things, this Act conferred on the Minister powers previously exercised and performed by the Governor. It also introduced a new section 18B, spelling out in more detail provisions for the appointment and replacement of members of the joint committee. The trustees’ power to make regulations (existing s 26) was removed, as was the equivalent power of the joint committee. Instead, the Governor was given power to make regulations (new s 37).
Necropolis (Amendment) Act 1986 (“1986 Necropolis Act”): According to the second reading speech (New South Wales, Parliamentary Debates, Legislative Council, 1 December 1986, 7206-11 (JR Hallam)), this Act was the product of several years’ consideration about reorganising and modernising the administration of the Cemetery. The Government contemplated abolishing the separate trusts and placing the whole Cemetery under a single trust, but in the end decided against it. Ultimately, it was decided to retain the separate trusts, but to make the regime under the 1913 Crown Lands Act (which included the amendments made in 1974) applicable to the trustees.
The 1986 Act accordingly inserted into the 1901 Act a new s 7A, which deemed the portions of the land set aside and held by the trustees to have been dedicated for a public purpose under s 24 of the 1913 Crown Lands Act. The effect was to pick up the general Crown land provisions concerning dedication, revocation and rededication in the 1913 Act (see [60] above). Each portion of the Cemetery also became a “reserve” for the purposes of the 1913 Act, bringing the general Crown land management provisions of Part 3B into play (see [66]-[79] above).
The 1986 Act repealed the provisions of the 1901 Act dealing with appointment and removal of trustees (existing s 14) and the conferral of control and management over the land and the other responsibilities and obligations on the trustees (existing ss 15 to 16). In their place, the Act substituted provisions for the appointment of trustees in accordance with Part 3B of the 1913 Act (new s 14) and specifying that each body of trustees should have, and might exercise, the functions conferred or imposed by or under either or both of the 1901 Necropolis Act and 1913 Crown Lands Act (new s 15).
The 1986 Act also repealed the provisions of the 1901 Act dealing with the application of income and the making of annual reports to the Minister (existing ss 18 and 19) and the appointment of a secretary or manager and other officers (existing s 20). Evidently, the view was taken that these provisions were redundant, because the regime under the 1913 Act would cover the field.
The provisions of the 1901 Act relating to the joint committee (existing ss 18A and 18B) were repealed and re-enacted in a different form (new ss 20 to 20F). The effect was a significant expansion in the role of the joint committee, and increased direct supervision and control by the Minister of the committee’s activities.
The committee was formally given responsibility to construct, care for, control and maintain the common works. The individual boards of trustees were to contribute the funds for the works under an assessment procedure which was to be the subject of regulations and approval by the Minister. It was contemplated that, under the regulations, assessments might differ between different boards of trustees; the limit of 10% of the trustees’ income was dropped. Provision was also made for the committee to provide services to the trustees on a contractual basis to enable them to manage their own portions of the Cemetery, and for the committee to provide financial assistance to boards of trustees.
The joint committee became a corporate body. Alongside representatives from each of the board of trustees were additional members of the committee appointed by the Minister. The Minister was given power to direct the committee to cause a plan of management to be prepared, to which the relevant provisions of the 1913 Crown Lands Act, ss 37U and 37V (see [68] above), were to apply. The Minister was also given power to require the joint committee to report on such activities as the Minister might from time to time require.
Schedule 5 to the 1986 Act, which dealt with savings and transitional matters, provided that, upon its commencement, existing trustees vacated their office but were eligible for reappointment. It made s 37VV(2) of the 1913 Crown Lands Act (see [74] above) applicable between the old boards of trustees and the new boards. Thus, the assets and liabilities of the existing boards of trustees who had been appointed according to the provisions of the 1901 Necropolis Act passed to new boards of trustees appointed according to the provisions of the 1913 Crown Lands Act.
Rookwood Necropolis Amendment Act 2004 (“2004 Necropolis Act”): This Act (which renamed the 1901 Act as the Rookwood Necropolis Act 1901) took the process of subjecting the Cemetery to the Crown Lands Act regime a step further. The Act repealed the provisions of the 1901 Act dealing with dedication and setting aside the land (ss 7, 7A, 8 and 8A) and the “nature of trust” provision (s 12). A new s 6A empowered the Minister, by publication of a notification in the Gazette, to set aside land within the Necropolis for cemetery use (s 6A(1)(a)). The Act repealed the provisions for the appointment and removal of trustees and their powers (ss 14 and 15 as substituted in 1986). It also repealed the provisions dealing with cremation and the provision authorising the payment of the chaplains’ stipend (ss 18 and 19).
What was left of the 1901 Act was the Minister’s power to set aside further land for use as a cemetery (s 6A); the Minister’s power to adjust boundaries and effect divestiture of land within the Necropolis with the consent of the reserve trust (ss 10 and 10A); the vesting of lands set apart for the use of the reserve trust (s 11); the joint committee (ss 20-20H); and the Governor’s power to make regulations (s 37).
Rookwood Necropolis Repeal Act 2009 (“2009 Necropolis Act”): This Act repealed what was left of the 1901 Act, as just described. A savings provision was inserted into the 1989 Crown Lands Act (sch 8, cl 54) preserving dedications and reserve trust appointments under Part 5 of that Act. It also preserved any prior vesting of land under s 11 of the 1901 Act, but subject to Part 5. Nothing else was carried forward from the 1901 Act.

Other cemetery legislation

It does not appear to have been considered that the scope of the Public Parks Acts was wide enough to cover cemeteries. But the 1861 Crown Lands Act included the “interment of the dead” in its list of “public purposes” for which land could be dedicated (s 5), and this has been carried through by all of its successor Acts.
Following the passage of the original Necropolis Act in 1867, there were occasional further statutes dealing with specific cemeteries. But there was no overarching statutory scheme. The specific Acts appear to have been passed when a statutory solution was needed to a particular tenure or conveyancing problem. Overwhelmingly, cemeteries continued to be established and operated under the Crown Lands Act regime.
Old Dubbo Cemetery, referred to by Leeming JA in Carr, appears to have been a case in point. The land for that cemetery was dedicated in 1871, pursuant to the 1861 Act. In 1877, a notice was published in the Gazette to the effect that several boards of trustees had been appointed by the Governor for different portions of the cemetery (this followed the structure of the Rookwood Cemetery, which was influential, see Dr Murray’s thesis at pages 96-8). The notification presumably took the form which it did because the 1861 Act did not include a statutory mechanism for appointment of trustees by notification in the Gazette. Presumably, the trustees were appointed by means of a grant: although a grant was not necessary under the 1861 Act, the Act did not prevent a grant being made.
The potential for grants to be used in association with dedications continued under 1884 Crown Lands Act. Trustees of cemeteries would therefore have been among the targets of the Public Trusts Act in 1897. Indeed, there was a 1944 amendment to the 1897 Act (s 2 of the Public Trusts (Amendment) Act 1944) which expressly applied the 1897 Act to trustees of any lands “set apart, dedicated or reserved for the purposes of a cemetery”. This would have included not only cemetery lands dedicated under the Crown Lands Act from 1861 onwards, but also lands vested in trustees by grant prior to or after that date. In turn, such lands were brought under the Crown Lands Act regime as a result of the 1974 amendments to the 1913 Act.
It should be mentioned that some cemeteries were vested in, and operated by, local Councils. This was acknowledged by the Legislature, which permitted local Councils to convert cemetery land no longer used for that purpose into public parkland: Conversion of Cemeteries Act 1974. It is unnecessary for the purposes of this judgment to say anything more about this part of the history.
In 2013, the Parliament passed, for the first time, a general statute regulating cemeteries in New South Wales. This was the Cemeteries and Crematoria Act 2013. That Act repealed the specific cemetery statutes to which I have referred above (the Necropolis Act had of course by then already been repealed). The Act also repealed and replaced the Conversion ofCemeteries Act 1974.
The Act establishes a system for the regulation of what it describes as the “interment industry”. This is overseen by a regulatory agency called “Cemeteries and Crematoria NSW” (referred to in the Act as the “Cemeteries Agency”). The Agency is subject to the control of the Minister. Its functions include: the provision of advice and recommendations on planning for future interment needs; the collection of information; and the conduct of research. It also develops codes of practice for the industry and administers a registration and licensing system for cemetery and crematorium operators.
Apart from overseeing the industry generally, the Cemeteries Agency also exercises direct control over cemeteries and crematoria on Crown land. Part 5 of the Act deals with the operation of Crown cemeteries and crematoria. For the purpose of the Act, “Crown cemetery” means “Crown managed land, or part of Crown managed land, dedicated, reserved or used … for the purposes of a public cemetery” under the Crown Lands Act. Pursuant to s 73(1) of the 2013 Act, the Agency may recommend to the Minister the appointment of a “Crown land manager as a Crown cemetery operator … for any Crown cemetery”. The Minister is then able, but not obliged, to make an appointment accordingly (see s 73(2)).

It should be remembered that s 4 of the 1867 Act referred to the land being held by the trustees upon the “trusts and purposes” and “subject to the provisions” “of this Act”. Built into that formulation was the possibility, as happened in 1901, of the “trusts” or the “purposes” being amended. That is not necessarily a fatal contention that the land is held on the terms of a trust in equity. The Parliament can, if it chooses, vary the terms of any trust, whether public or private. But it is a relevant factor in addressing the construction question which is before the Court.
I conclude that, on enactment of the 1901 Act, the Anglican Cemetery Land previously set aside and vested in the Anglican Board of Trustees was held by the Trustees on the new, slightly revised, purpose in s 12. The further parts aggregated to the Land in December 1935 were likewise vested in the Trustees by s 11 of the Act and thereafter held on the terms in s 12.
The parcel added to the Anglican Cemetery Land by way of boundary adjustment in 1968 was potentially in a slightly different position. There was no equivalent provision expressly providing for that parcel to be vested in the Trustees. However, counsel submitted that the scheme of the legislation was that when land was transferred by way of boundary adjustment, it must necessarily have been intended that the land so transferred was divested from the existing trustee owners and vested in the receiving trustees. I agree with this submission, which I will not set out in detail.
Section 12 of the 1901 Act remained unchanged until it was amended by the 1986 Act. The amendment replaced the reference to trustees “appointed under this Act” with a reference to trustees “appointed for the purposes of this Act”.
Textually, this was a minor textual alteration which merely recognised that the trustees were, in future, to be appointed under the Crown Lands Act. But, as we have seen, that was, on the face of it, a potentially significant change. It appeared to open up the possibility that the Minister could require the trustees to use the burial ground lands for purposes which went beyond the original terms of the Necropolis Act, or even that the Minister could, by rededication or revocation, devote the land to other purposes entirely.
But, as counsel for the Manager pointed out, there might still have been some debate about how far the adoption of the Crown Lands Act regime could, in this regard, go. In its post-1986 form, s 12 retained the wording which required the trustees to hold “for ever” the land vested in them “on the trusts and purposes” of “this Act” (meaning the 1901 Necropolis Act). Had the Minister sought, under the Crown Lands Act regime, to require the Trustees to use the Anglican Cemetery Land for some different purpose, there might have been questions about whether that could prevail over the express wording of s 12.
Repeal: In the end, the later enactment of the 2004 Necropolis Act makes it unnecessary to go into such questions. That Act repealed s 12 of the 1901 Act entirely. Any obstacle which that section presented to the full sweep of Ministerial powers under the Crown Lands Act disappeared. The Act also repealed all of the dedication provisions under the 1901 Act, leaving the Crown Lands Act provision for dedication as the only remaining one. This clearly would have permitted the Minister to exercise powers of amalgamation, rededication or revocation.
On this view, if any trust in equity subsisted at all after the repeal of s 12, it would properly have been characterised as a trust for purposes under the Crown Lands Act. But, on the arguments by counsel for both parties, this was not so. Counsel contended that, a true trust having been created prior to 2004, that trust remained unimpaired by the repeal of s 12.
The first point to make about this contention is that it involves a distinction which is extraordinarily fine. It is concerned solely with whether relief was available in the equitable jurisdiction derived from the Statute of Elizabeth. It should be emphasised that, even if the Act did not create a charitable trust in the strict sense, that would not mean that no relief was available from this Court. On the authority of the Bathurst City Council case, there was still a statutory trust with statutory obligations enforceable against the trustee by injunction. And, on the authority of Fouche v Superannuation Fund Board, equitable remedies would still be available against defaulting trustees as fiduciaries (and against third parties), even if the trust were only a statutory trust.
It must also not be forgotten that the question turns on the availability of relief under the Court’s administrative jurisdiction derived from Chancery. That jurisdiction has been supplemented by statute (currently, the Trustee Act 1925), but whether relief derived from those supplementary statutory provisions is available is a matter of construction of the provisions themselves. They may apply, or not apply, irrespective of whether the trust is a trust in equity or a statutory trust.
It is not easy to see what practical role the Chancery jurisdiction could have played. That jurisdiction includes the power to settle property cy-près in the event of the trust becoming unworkable. But it seems inconceivable that the Court would have entertained an application to exercise that power in the face of the Minister’s power to revoke the relevant dedication and dedicate the Cemetery lands to other uses. Similar comments apply to the Court’s powers to direct the trustees to provide statements of account and to take other actions to execute the trust. The only practically possibility that springs to mind is the Court’s power to give judicial advice to the trustees (meaning the Chancery power; the availability of the statutory power under s 63 of the Trustee Act depends upon the construction of that section).
Counsel for the Manager relied on the proposition that a charitable trust, once established, cannot fail or lapse. Counsel relied for that proposition on Mayor of Lyons v Advocate-General of Bengal (1876) 1 App Cas 91.
The proposition is well established and was, as we have seen, part of the reasoning of the Full Court in the Clergy and Church Lands Corporation case (see [41] above). But in that case, grants had been made to the Corporation which, on any view, gave rise to a trust in equity. I think that there is a difficulty in applying the principle in the context of construing legislation, especially repealing legislation.
The jurisdiction over charitable trusts which this Court exercises pursuant to the Statute of Elizabeth is ultimately designed to serve the public interest in the proper administration of charities benefitting the public. The reach of that jurisdiction has inevitably been carried along in the wake of statutory developments. This is clearly visible in the passage from the Scottish Cremation case which I have quoted at [214] above. Cremation services provided by a private trustee were seen as having the necessary quality of public benefit because they were analogous to services provided to the public generally pursuant to statute.
This is, of course, entirely consistent with the view that equity is an appendix to the common law (see Sir Frank Kitto’s foreword to the first edition of Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies, reproduced in the fifth edition at page vi). But the argument in the present case involves reversing the process. The repeal of a statutory provision consequent upon a new statutory regime being applied is, according to the argument, read down so as to coincide with the supposed existence of an equitable institution which was ultimately dependent on the enactment of the statute in the first place. I am not sure that that is either jurisprudentially or historically sound.
The consequences of counsel’s contention create further difficulties. What would be the purposes and the terms of trust which had supposedly been in existence, in equity, all along? Counsel for the Manager submitted, consistently with their submission about the amendment of the trust’s purpose, that the terms of the 1867 Act would, in effect, revive. But this seems a bizarre consequence to attribute to the 2004 statute. Would it result, for instance, in the Governor’s power to appoint the trustees being resurrected?
The analysis by counsel for the Attorney-General would seem to result in the terms of the trust in equity being the terms of the Act as amended. But this only makes the nullification of the repeal statute more obvious. I do not think that either analysis is satisfactory.
Counsel for the Manager pointed out that s 11, which provided for the vesting of the Land in the Trustees, was left unaffected by the repeal. That may be so, but s 11 on its own merely provided for the vesting of the legal title in the Trustees. It was s 12 which was said to have imposed a trust obligation on that legal title, and that section was repealed.
Counsel also relied on s 30(1)(c) of the Interpretation Act 1987 which provides that the repeal of an Act does not affect any obligation or liability acquired or accrued under the repealed Act. But this provision preserves rights and obligations, not institutions. At most, if a trust had subsisted and there had been accrued rights or liabilities of the Trustees (for instance, a right of indemnity) then those specific rights and liabilities would have been preserved. The enactment would not have continued the trust itself.
Counsel for each of the parties submitted that the explanatory memorandum contained no indication of any desire to abolish a trust. The memorandum relevantly stated that the purpose of the amendment was “statute law revision” and explained:

The Necropolis Act 1901 contains a number of provisions that have fallen into disuse. It has also been affected by the repeal of the Crown Lands Consolidation Act 1913 and the enactment of the Crown Lands Act 1989. Moreover, the Act is written in a style that no longer conforms to current drafting practice …

Again, I think that this takes matters no further. There is no sign of any appreciation in the memorandum that there was a trust, let alone a trust in equity as opposed to a statutory trust.
For these reasons, I think that the better view is that any trust in equity over the Anglican Cemetery Land ceased to exist when the 2004 Necropolis Act came into force. The same conclusion applies, a fortiori, to the situation following the 2009 Act. As already noted, after the passage of that Act there was simply nothing left of the Necropolis legislation apart from the bare vesting of the Land in the Trustees.
Subsequent developments illustrate the problems which would arise if any other view were taken. The reorganisation undertaken by the Minister in April 2012 clearly proceeded on the assumption that the Cemetery was regulated by the Crown Lands Act and nothing else. Even more importantly, it clearly must have been intended by Parliament that the regulatory regime established by the Cemeteries and Crematoria Act 2013 would apply to the Rookwood Cemetery. Had the Necropolis Act still be in force when the 2013 Act was passed it would undoubtedly have been repealed along with the other specialist cemetery legislation which was repealed at the same time. Had a trust survived to that point, it probably would have been abolished by necessary intendment because of its inconsistency with the system of regulation established by the 2013 Act.

Anglican Cemetery Proceeds

It was common ground between the parties that, following the abolition of any trust over the Anglican Cemetery Land on 1 July 2018, moneys derived by the Manager from the operation of the Anglican portion of the Cemetery was governed by s 3.16 of the 2016 Crown Lands Act, and there was no room for any trust in equity over those moneys. But counsel for both parties contended that the proceeds of the Anglican Cemetery Land up to 1 July 2018 were subject to a charitable trust for the same purposes as the trust which, on their arguments, subsisted over the Land. That trust, so the argument ran, had not been abolished when the trust over the Land had been abolished, and therefore still subsisted.
If property is held on the terms of a charitable trust, income derived from that property are likewise impressed with the terms of the trust: see Metropolitan Petar v Mitreski [2012] NSWSC 16 at [58] per Brereton J (as his Honour then was). I accept in principle that, if the Anglican Cemetery Land were subject to a charitable trust in equity for specified purposes, so too would the Proceeds derived by the Trustees from their ownership and use of the Land.
In its application to a trust in equity, however, this principle must give way to any express provision of the trust deed, if there is one. In the present case, it can only take effect within the confines marked out, expressly or impliedly, by the Act.
1867 Necropolis Act: As we have seen, s 14 of the 1867 Act made specific provision for identified sources of income deriving from the use of the Cemetery lands as burial grounds. It also placed a set of priorities according to which of the proceeds of those burial grounds should be expended.
This was a departure from to the type of trust over the proceeds which would arise on the principle stated by Brereton J. In the first place, under such a trust, the principle would apply to all income derived by the trustees from the land, not merely specific items. Secondly, the trustees would ordinarily have full power to choose how to spend the proceeds, provided that the purposes for which they spent them complied with the terms of the trust.
What this means is that, even if the Anglican Cemetery Land had been held on trust, it would not have been correct to see the Anglican Cemetery Proceeds as being held on trust for purposes formulated in precisely the same terms. Rather, the proceeds, if held on trust in equity, would have been held for the purposes, and according to the terms, specified in the Act, and specifically in accordance with the order of priorities laid out in s 14.
Later Necropolis Acts: Section 14 of the 1867 Act was replaced by s 18 of the 1901 Act. By parity of reasoning with effect on the Anglican Cemetery Land (see [123] above), any trust for the Anglican Cemetery Proceeds thereafter was expressed in terms of s 18 of the 1901 Act.
There was in fact little, if any, difference between the wording of s 18 of the 1901 Act and its predecessor. But a significant change was made by the amendments in the 1923 Act which introduced the joint committee to manage “common areas” of the Cemetery. The Trustees were thenceforth obliged to pay any levies imposed by the joint committee. No doubt specific statutory authorisation was provided for such expenditure in the 1923 Act because it might have fallen outside s 18. Effectively this was a modification of the “trust” under which the Trustees held the Proceeds. Later legislative amendment of the arrangements between the Trustees and the joint committee made further modifications of that “trust”.
Again, by parity of reasoning with the Land, the effect of the amendments made by the 1986 Act was to subject the moneys, in the hands of the Trustees, to the provisions of the Crown Lands Act. In the case of the Land, there was, as we have seen, a potential obstacle to uses authorised under the Crown Lands Act but not by the provision of the Necropolis Act, because of the terms of s 12 of the 1901 Act. There was, however, no equivalent obstacle in the case of the Proceeds.
One of the changes made by the 1986 Act was the repeal of s 18. This left no provision in the remaining parts of the 1901 Act which governed how the moneys received by the Trustees were to be applied (apart from meeting any levies imposed by the joint committee). So, for instance, there would have been an express obligation to use those moneys to pay for activities undertaken pursuant to a plan of management imposed by the Minister, whether or not such activities fell within the scope of s 12.
It follows that, from this point forward, any trust over the Proceeds could only have been described in terms of use of the moneys for purposes required or permitted under the Crown Lands Act. Clearly, such a purpose would not necessarily be charitable for the purposes of the Statute of Elizabeth. In my view, any trust in equity over the Proceeds ceased at that point.
This conclusion in theory leaves open the question whether the Anglican Cemetery Proceeds (and the Anglican Cemetery Land) as they stood at the commencement of the 1986 Act (1 April 1988) were subject to a trust in equity.
On the commencement of the 1986 Act, s 37VV of the 1913 Crown Lands Act vested the Land and Proceeds in the new Anglican Board of Trustees appointed by the Minister, but s 37VV(8) specifically contemplated the possibility that the outgoing Board of Trustees might have a right of indemnity which could be exercised against that property. On the other hand, as already mentioned, the presence of the provisions such as s 37VV(8) may be explained on the basis that land under the Crown Lands Act might, unlike land under the Necropolis Act, have been the subject of a grant. And the existence of such a right of indemnity would not necessarily be inconsistent with a general intention that the moneys should be applied to the new purposes rather than held in “trust” for the old purposes. Why else, after all, would such a transfer be made?
In the end, I do not think it is necessary to answer these questions. It would be a Herculean task to try to identify the extent to which, if at all, the assets now held by the Manager might be traced back to the Anglican Cemetery Proceeds as they stood on 1 April 1988. It is vanishingly unlikely that any question could now arise about a right of indemnity of the Anglican Board of Trustees holding office prior to 1 April 1988 out of such assets.
Repeal: Again, by parity of reasoning with the Land, any trust in equity over the Proceeds which survived the 1986 Act would have been extinguished by the repeals in the 2004 Act, or, failing that, by the repeal of the remainder of the Necropolis Act in 2009.
2016 Crown Land Act: It remains to deal with the parties’ submissions about the effect of the reconstitution of the RGC Trust Corporation as the Manager on 1 July 2018, which I will consider for completeness.
Schedule 6 to the 2016 Act deals with the transfer of assets, rights and liabilities. Clause 3 relevantly provides:

Vesting in transferee
(1)   When any assets, rights or liabilities are transferred by a transfer to which this Schedule applies, the following provisions have effect:
(a)   the assets of the transferor vest in the transferee by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,
(b)   the rights or liabilities of the transferor become by virtue of this Schedule the rights or liabilities of the transferee,
...
(e)   the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time the transfer took effect,
…

The Act’s savings and transitional provisions are found in schedule 7. Clause 11 deals with the reconstitution of reserve trusts as statutory land managers upon commencement of the Act. The RGC Trust Corporation was what is described as an “administered reserve trust”, as it was being managed by an administrator as at the commencement date. The relevant provisions of cl 11 are:

…
(2) Trust over trust land of reserve trusts abolished Any trust over the trust land of each reserve trust … is abolished on the repeal day.

…
(4)   Administered reserve trusts The following provisions apply in relation to an administered reserve trust on and from the repeal day:
(a)   the administered reserve trust is taken to have been reconstituted as a statutory land manager under this Act without a board,
(b)   the name of the reconstituted reserve trust is taken to be the name of the administered reserve trust (excluding the word “Trust” if it forms part of its name) and ending with the words “Land Manager”,
(c)   the administrator of the administered reserve trust is taken to have been appointed as the administrator of the reconstituted reserve trust,
(d)   the reconstituted reserve trust is taken for all purposes (including the rules of private international law) to be a continuation of, and the same legal entity as, the administered reserve trust,
(e)   the reconstituted reserve trust is taken to have been appointed as the Crown land manager of the former trust land.

…
(7)   Assets, rights and liabilities of reconstituted or abolished reserve trusts Schedule 6 applies to a transfer of any assets, rights or liabilities under this clause.
(8)   To avoid doubt, the following provisions apply in relation to reconstituted reserve trusts:
(a)   subclauses (3), (4) and (5A) do not operate (except to the extent another provision of this Part provides differently):
(i)   to preserve any functions of [an] administered reserve trust in relation to former trust land (including any trust functions or other equitable rights or duties in relation to such land), or
(ii)   to preserve any interest of [an] administered reserve trust in former trust land, or
(iii)   to affect the operation of Division 2 of this Part in its application to the former trust land of [an] administered reserve trust,

(b) subject to paragraph (a), the assets, rights and liabilities of [an] administered reserve trust continue to be those of the reconstituted reserve trust (including in relation to the accounts of the board or administered reserve trust in authorised deposit-taking institutions or with utility providers and its insurance policies),
...

Counsel for the Manager submitted that the effect of these provisions was clear. Clause 11(7) of sch 7 made sch 6 applicable to the “transfer” between the Corporation and the Manager. Clause 3(1) of sch 6 had the effect that liabilities, including potential liabilities, of the Corporation passed to the Manager. If a trust of the Proceeds subsisted at that point, the trust obligations passed to the Manager.
But, as counsel for the Attorney-General pointed out, it is not clear that sch 6 was applicable. By sch 7, cl 11(4), the Manager was to be taken for “all purposes” as the same legal entity as the RGC Trust Corporation. It was therefore inapposite to speak of a “transfer” between the Corporation and the Manager, and sch 7, cl 11(7) did not apply.
Counsel further pointed out, however, that this was not inconsistent with the continuation of trust in equity over the Proceeds which already subsisted as at 1 July 2018. Schedule 7, cl 11(2) only abolished any trust over the Land and conspicuously failed to deal with the Proceeds. And although cl 11(8) referred to the non-continuation of obligations “in relation to” the Land, this fell far short of being a clear abolition. It was expressed to be in order to avoid doubt. In the context, the words “in relation to” should not be read as extending beyond obligations attaching to the Land.
I accept these submissions, so far as they go. If a charitable trust subsisted over the Proceeds on 1 July 2018, I agree the transitional provisions did not expressly abolish it. For reasons already given, however, the statutory scheme may have done so by necessary intendment, subject perhaps to any right of indemnity of the former trustee. But as I have concluded that any such trust, if it ever existed, had ceased to do so well before 1 July 2018, it is not necessary to consider this further.
What the argument does point up is that it would be desirable if the question were expressly addressed in the Crown lands Act, as it has been for land converted into Crown land under the Act (s 1.10(2)), and for the future proceeds of such land (s 3.16). Indeed, there is a wider legislative gap. Since the passage of the 1913 Crown Lands Act, there has been an express provision that, upon revocation of a previous dedication of land under the Act, not accompanied by some further rededication, the land vests in the Crown. There is however no equivalent provision for moneys and other assets derived from the land prior to the revocation. Although this gap is not a problem in the present case, it may be something which the Parliament ought to deal with for the future.

Administration questions

In the light of the conclusions I have reached, there is no need to address the questions posed by the Manager on specific questions about administration of the assets it holds. Indeed, there is a question about whether the Court has jurisdiction to give judicial advice on those questions.

Conclusions and orders

I have concluded that:

the Anglican Cemetery Proceeds are not the subject of a charitable trust for denominational purposes, but rather fall to be administered pursuant to the terms of the Crown Lands Act;

the specific questions posed concerning the administration of the Proceeds do not need to be decided (assuming the Court has jurisdiction to do so).

It seems to me that the proceedings should probably be dismissed. But I will adjourn them until early in the next Term to enable the parties to consider this judgment. The parties are also invited to identify any errors or omissions in my reasons.
To some it might appear disturbing that moneys built up over more than a century from the operation of a religious burial ground should now be capable of being used for purely secular purposes. But that does not mean that that will happen. As I have tried to demonstrate in this judgment, the way in which those moneys are used in future is very much a matter under the ultimate control of the Minister. There is no reason to think that the Minister will be insensitive to the issue. It might even be a situation where Parliament should intervene to strike a balance between the competing factors, and clarify the law about what is to happen with assets left over when the public purpose for which Crown land is being used ceases or changes in its nature.
The orders of the Court are:

Adjourn the proceedings to 9:30 am on 3 February 2023 or such other time as may be arranged with my Associate.

Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.

**********

Decision last updated: 21 December 2022

Medium Neutral Citation:	Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763
Hearing dates:	20 April 2022
Date of orders:	20 December 2022
Decision date:	20 December 2022
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [302]-[305]
Catchwords:	EQUITY – trusts – charitable trusts – relationship with statute – Necropolis Act establishes cemetery with denominational burial grounds on Crown land – Necropolis Act vests denominational burial ground land in trustees and provides for appointment, removal, functions and responsibilities of trustees – Necropolis Act amended to bring appointment, removal, functions and responsibilities of trustees under Crown Lands Act – Necropolis Act repealed – Crown Lands Act re-enacted to vest land in Crown and extinguish any trust over burial ground land - whether Necropolis Act established charitable trust or only “statutory trust” over burial ground land and proceeds of operation of burial ground – effect of re-enactment of Crown Lands Act on burial ground proceeds
Legislation Cited:	Australian Colonies Waste Lands Act 1842, 5 & 6 Vict, c 36 (Imp) Cemeteries and Crematoria Act 2013 Charitable Uses Act 1601, 43 Eliz 1, c 4 Church Act 1836, 6 & 7 Wm 4, c 71 (Imp) Constitution Statute 1855 (Imp) Conversion of Cemeteries Act 1974 Corporations Act 2001 (Cth) Crown Lands Act 1884 Crown Lands Act 1989 Crown Lands Alienation Act 1861 Crown Lands and Other Acts (Reserves) Amendment Act 1974 Crown Lands Consolidation Act 1913 Crown Land Management Act 2016 General Cemetery Act 1847 Interpretation Act 1987 Land Act 1933 (WA) Local Government Act 1919 Necropolis Act 1867 Necropolis Act 1901 Necropolis Act Amendment Act 1884 Necropolis (Additional Areas) Act 1893 Necropolis (Amendment) Act 1923 Necropolis (Amendment) Act 1954 Necropolis (Amendment) Act 1973 Necropolis (Amendment) Act 1986 New South Wales Constitution Act 1855, 18 & 19 Vict, c 54 (Imp) Public Parks Act 1854 Public Parks Act 1884 Public Parks Act 1902 Public Parks Act 1912 Public Trusts Act 1897 Public Trusts (Amendment) Act 1944 Rookwood Necropolis Amendment Act 2004 Rookwood Necropolis Repeal Act 2009 Trustee Act 1925
Cases Cited:	Attorney-General (NSW) v Eagar (1864) 3 SCR (NSW) 234 Attorney-General (NSW) v Williams (1913) 13 SR (NSW) 295 Attorney-General (NSW) v Williams (1915) 19 CLR 343 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Baba v Sheehan [2021] NSWCA 58 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Carr v Carr [2022] NSWSC 166 Fouche v Superannuation Fund Board (1952) 88 CLR 609 General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515 Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5 Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619 London Association of Shipowners and Brokers v London India Docks Joint Committee [1892] 3 Ch 242 Mayor of Lyons v Advocate-General of Bengal (1876) 1 App Cas 91 Metropolitan Petar v Mitreski [2012] NSWSC 16 New South Wales v Commonwealth (1926) 38 CLR 74 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 Randwick Municipal Council v Rutledge (1959) 102 CLR 54 Re Eighmie; Colbourne v Wilks [1935] Ch 524 Re Manser; Attorney-General v Lucas [1905] 1 Ch 68 Re Vaughan; Vaughan v Thomas (1886) 33 Ch D 187 Registrar of Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145 Scottish Burial Reform & Cremation Society Ltd v Glasgow Corporation [1968] AC 138 Tomlin v Ford Credit Australia Ltd [2005] NSWSC 540 Wellington Capital Ltd v Australian Securities and Investments Commission (2014) 254 CLR 288 Western Australia v Ward (2002) 213 CLR 1 Williams v Attorney-General (NSW) (1913) 16 CLR 404
Texts Cited:	Heydon, J D, Leeming, M J and Turner, P G, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Murray, L A, “Cemeteries in Nineteenth-Century New South Wales: Landscapes of Memory and Identity” (PhD Thesis, 2001, University of Sydney) (Permalink A, The Constitution of New South Wales (2004, The Federation Press)
Category:	Principal judgment
Parties:	Rookwood General Cemeteries Reserve Land Manager (Plaintiff) Attorney-General for New South Wales (Defendant)
Representation:	Counsel: AP Cheshire SC/A Oakes (Plaintiff) P Herzfeld SC/C Langford (Defendant) Solicitors:
File Number(s):	2021/353046
Publication restriction:	Nil