NEW SOUTH WALES. Statute-Discretionary power-Mandamus-Statutory Commission-" Entirely in the
discretion of the Commission '-Purposes of statute-Policy of Commission- Lease of irrigation farm-Transfer of lease-Application for consent of Commis- MELBOURNE,
sion-Refusal-Proposed transferee naturalized in Australia but of enemy origin- May 29;
The Irrigation Act 1912-1944 (N.S.W.) constituted the Water Conservation and Irrigation Commission, gave it control of irrigation areas and empowered it to dispose of lands in irrigation areas under the law relating to Crown lands. The Crown Lands Consolidation Act 1913-1944 (N.S.W.) provided, by S. 145A, that an irrigation-farm lease should not be transferred without the consent of the Commission and that the granting or refusing of consent shall be entirely in the discretion of the Commission" and, by S. 241, that aliens might acquire leases in irrigation areas, provided they became naturalized within a certain period.
Held that it was not beyond the Commission's discretion to refuse its consent to a transfer of an irrigation-farm lease on the ground that the proposed transferee, though naturalized, was of enemy origin.
Decision of the Supreme Court of New South Wales (Full Court): Browning V. Water Conservation and Irrigation Commission (N.S.W.), (1947) 47 S.R. (N.S.W.) 395 64 W.N. 120, reversed.
An application to the Water Conservation and Irrigation Com- mission of New South Wales for its consent to the transfer of an irrigation-farm lease from Eric Browning to Antonio Carbone having been refused, Browning obtained from the Supreme Court of New South Wales a rule nisi, returnable before the Full Court, for a writ of mandamus calling upon the Commission to deal with and determine according to law the application for transfer on the ground that the BROWNING discretion of the Commission in rejecting the application was not duly exercised in accordance with law. The Full Court made the rule absolute.
By special leave (which was granted subject to the condition that the appellant pay the respondent's costs of the appeal in any event) the Commission appealed from this decision to the High Court. The facts appear in the judgments hereunder.
Dwyer K.C. (with him C. M. Collins), for the appellant. The relevant power of the Commission is now to be found in S. 145A of the Crown Lands Consolidation Act 1913-1944 (N.S.W.). See also SS. 137, 139, 141, of that Act and S. 8 of the Irrigation Act 1912- 1944 (N.S.W.). The Crown Lands Consolidation Act, S. 241, in providing that aliens may, subject to a condition, acquire lands in irrigation areas, merely removes a disability. It does not confer any right which limits the Commission's discretion as was thought in the Supreme Court. The Commission's general policy in relation to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21
Case
[1947] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the refusal of the Water Conservation and Irrigation Commission (the Commission) to consent to the transfer of an irrigation-farm lease. The dispute arose when Eric Browning sought to transfer his lease to Antonio Carbone, a naturalized Australian of Italian origin. The Commission refused consent, citing its policy regarding the acquisition of land by naturalized persons of enemy origin. The Supreme Court had previously granted a writ of mandamus, finding that the Commission had not exercised its discretion lawfully.
The central legal issue before the High Court was whether the Commission's refusal to consent to the transfer, based on its policy concerning naturalized persons of enemy origin and the perceived suitability of Italians as irrigation farmers, constituted a lawful exercise of the discretion vested in it by section 145A of the Crown Lands Consolidation Act 1913 (NSW). This section stated that the granting or refusing of consent to the transfer of an irrigation-farm lease was "entirely in the discretion of the Commission." The Supreme Court had held that this discretion was not unlimited and that the Commission's stated reasons were extraneous and irrelevant to the purposes of the legislation.
The High Court, in allowing the appeal, reasoned that the discretion granted to the Commission under section 145A was broad and intended to encompass considerations relevant to the effective control and development of irrigation areas. The Court found that the Commission's policy, which took into account the suitability of potential transferees as farmers, the integration of individuals into the irrigation community, and broader policy considerations such as keeping land available for Australians, were not necessarily irrelevant to its statutory functions. While acknowledging that a discretion must be exercised for reasons germane to the statute, the Court held that the Commission had not acted arbitrarily or capriciously. The Court concluded that the Commission had considered the application in light of its established policy and the specific circumstances of the case, and therefore had exercised its discretion in a manner that was not unlawful.
Consequently, the High Court reversed the decision of the Supreme Court, setting aside the order for a writ of mandamus. The appeal was allowed, with the appellant Commission ordered to pay the respondent's costs of the appeal as per the terms of the special leave granted.