Minister for Lands (NSW) v Bank of NSW [1909] HCA 54; (1909) 9 CLR 322 (25 August 1909)

The Minister for Lands (New South Wales) and Perry Appellants; and The Bank of New South Wales Respondents.

The Minister for Lands (New South Wales) and Lake Appellants; and The Bank of New South Wales Respondents.

The Minister for Lands (New South Wales), Norman and Others Appellants; and Scott and Others Respondents.

The question for determination in this case depends upon the construction of the Act No. 42 of 1906. The title, which is rather long and comprehensive, describes the Act as "An Act to provide for the cancellation and forfeiture of certain improvement leases; for the disposal of the land included in such leases, and for the constitution of a board to deal with such land; to amend the Crown Lands Acts; and for purposes consequent thereon and incidental thereto." The subject matter is primarily certain improvement leases. Improvement lease is a tenure of Crown lands which was first set up by the Crown Lands Act 1895, 58 Vict. No. 18, sec. 26. The subject matter of improvement leases is, as that section states, "Crown lands, which by reason of inferior quality, heavy timber, scrub, noxious animals, undergrowth, marshes, swamps, or other similar cause, are not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improvement thereof." The maximum area that may be granted is 32 square miles. Before the passing of the Act of 1906 it had been alleged, —as may be gathered from the provisions of the Act—that certain improvement leases had been improperly obtained. No doubt these leases, if improperly obtained, might have been revoked by the Crown by suit. But that would have been a very expensive process, and the result would have been uncertain. Under these circumstances a Royal Commission consisting of Mr. Justice Owen had been appointed to inquire into the allegations, and the Act of 1906 provided a summary way of dealing with the cases. [His Honor read sec. 2 and continued:] That got rid of the leases. Then the Act proceeded to provide for the case of the lessees, who might be either innocent or guilty, and, if guilty, the degree of culpability might vary. Accordingly the Act first of all made provision for a temporary tenure pending the inquiry. It did not turn out the lessee at once. Sec. 3 provided that on cancellation or forfeiture of a lease the lessee should become the holder of a preferential occupation licence, and the land comprised in it should thereupon "become reserved from sale or lease generally" until the reservation should be revoked in whole or in part by notification by the Governor in the Gazette. I pause for a moment to remark that the terms used in that section are quite unintelligible without reference to some other Acts. I will refer to the Acts directly. The same section also contained a provision that within 60 days from the cancellation the lessee might make a fresh application for an improvement lease or for another kind of lease that was open to holders under preferential occupation licence under another Act. Sec. 4 provided a special mode of dealing with the merits of these cases by a Board of three persons appointed by the Governor, one of whom was to be a Judge of the Supreme Court, who were to inquire and finally determine whether any part of the land might be leased under improvement lease or the other kind of tenure specified; secondly, if so, for what terms—the minimum being 28 years —and under what conditions, rent, &c.; thirdly, whether, having regard to the circumstances surrounding the granting of the cancelled lease and the equities of the case, the former lessee should have a preferential right to an improvement lease or whether such lease should be by auction or tender; fourthly, whether and to what extent the former lessee should be entitled to a preferential right, as defined in sec. 51 of the Crown Lands Act 1895, in improvements effected during the currency of the cancelled lease; and fifthly, the amount of the preferential licence fee, that is, pending the currency of the preferential occupation licence. It is obvious that the whole of these provisions were unintelligible in themselves, and that in order to understand them you must read the provisions of the Crown Lands Acts of which this Act is described in the title as an amendment. Now I go back to sec. 3. Two consequences followed from the cancellation; first of all, the lessee became entitled to a preferential occupation licence, and secondly, the land became reserved from sale and lease generally until the reservation was revoked by the Governor. What is the meaning of giving the lessee a preferential occupation licence? The tenure of occupation licence was recognized in the first instance by the Crown Lands Act 1884, sec. 81, which provided that under certain conditions certain persons, run-holders, should be entitled to an occupation licence of land resumed from their run if they applied for it. The rental was called a licence fee of £2 per 640 acres, to be paid at the beginning of the tenure, and was liable to be increased upon appraisement by the Land Board. Under sub-sec. 4 of that section, upon the granting of any lease or sale of any land under occupation licence, the licensee's right of occupation ceased as to such portion, and he became entitled to a proportionate refund of the fee and reduction of future rent. That tenure was in fact a preferential occupation licence though not so described, because only certain persons, that is the run-holders, were entitled to get it. By sec. 33 of the Crown Lands Act 1889 another similar provision was made, and an occupation licence was granted to other persons upon the expiration of their lease, not upon resumption of their holding as under the former Act. By sec. 43 another class of persons was declared entitled to an occupation licence, which was expressly called a preferential occupation licence. That was the first introduction of the term into the Crown Lands Acts. Then by the Crown Lands Act 1895, 58 Vict. No. 18, sec. 4, another class of persons obtained the privilege of obtaining a preferential occupation licence, and the holders of that particular kind had a tenant right in improvements in certain specified cases. They must have been improvements made with the consent of the Crown while the land was held under pastoral lease or preferential occupation licence. Neither of these provisions applied, of course, to the case of an improvement lease. Now we understand the meaning of preferential occupation licence when the term is used in the Act No. 42 of 1906, and the nature of the privileges conferred primâ facie upon the former holder of the cancelled lease.

I now proceed to inquire into the meaning of the word "reservation" and the consequences of the provision that "the land shall ... become reserved from sale and lease generally until such reservation is revoked," &c. Again I refer to the older Acts. By sec. 101 of the Crown Lands Act 1884 the Governor had power to reserve land from sale. By sec. 102 it was provided that Crown lands temporarily reserved from sale under the Act should not be sold before the expiration of 60 days after the reservation should have been revoked. By sec. 39 of the Act of 1889 the Governor was empowered to reserve land from being sold or let on lease or licence, but land was not to be "reserved or exempt from sale or lease generally" unless expressly otherwise declared. The same section provided that the reservation might be revoked by the Minister, and that the revocation should take effect in respect of any reserve from lease or licence from the date of the notification of it. By sec. 32 of the Act of 1889 it was provided that in certain cases, where land was reserved from sale and from lease or licence under one notification for any public purpose, the Governor might by notification in the Gazette revoke or vary any such reservation. The same reservation might in some cases be made by the Minister. Sec. 46 of the same Act provides for the automatic reservation of land in certain cases. Land acquired by the Governor for certain purposes specified was upon acquisition to "be deemed to be reserved from sale and lease" and might on revocation of the reserve "be dealt with, in accordance with the Principal Act or this Act." That is to say, that in certain cases land acquired by the Government fell automatically within these provisions of the general law. In 1895 the Reserves Declaratory Act, 58 Vict. No. 16, was passed. That Act by sec. 6 provided that "after the commencement of this Act the revocation of any reservation from lease, or of any reservation from occupation licence, or of any reservation from lease and occupation licence, shall not take effect until after the expiration of sixty days from the day of the publication in the Gazette of the notice of revocation." Now we know the meaning of the expression in sec. 3 of the Act No. 42 of 1906, "the land shall be reserved from sale and lease generally until such reservation is revoked in whole or in part," &c. It is clear that the tenant was to have all the rights of a holder of a preferential occupation licence. Upon notice of cancellation or forfeiture the reservation was, as under sec. 46 of the Act of 1889, to be automatic, and the revocation, as under sec. 32 of that Act in similar cases, was to be by the Governor and not by the Minister. But I think it is clear that it was not intended to create by the Act of 1906 a new kind of reservation or revocation, but merely to adopt an old process or condition called a reservation and one of the old modes of revocation, and that in both respects the old law should apply except as altered by the Act itself. So far I have applied the ordinary principle of construction. Then sec. 4 of the Act of 1906 states in what respect the old general law is to be altered, as applied to the persons with whom the Act is dealing. Sec. 2, sub-sec. (a), authorizes tenant right in improvements to be granted in certain cases. The cases in which that right existed under the Crown Lands Act 1895 did not cover them: therefore that additional privilege was given, and a further alteration was that the amount of the licence fee was to be fixed by the special Board presided over by a Judge of the Supreme Court, instead of by the Land Board. Those are the only alterations. They were in one way important privileges. I have already pointed out that the holder of an occupation licence was liable to be turned out at a moment's notice upon the granting of a lease of the land included in the run, and that an application for the land by way of selection or other tenure authorized by the Acts operated automatically to determine the tenancy as to the land so applied for, and it has been held by the Supreme Court that the right of the new tenant operated retrospectively so that the holder of the occupation licence became a trespasser retrospectively. The provisions of the Reserves Declaratory Act made important modifications in that respect, because the effect of it was that, if the land held under occupation licence was land reserved from sale or lease, the holder had 60 days' notice before eviction, and in the case of land under occupation for pastoral purposes some notice to enable the holder to remove his stock and plant is a matter of great consequence. So the Reserves Declaratory Act made an important change for the better in the nature of the tenure of holders under occupation licence which came within its provisions. It follows, in my opinion, that land when reserved automatically under the Act of 1906 becomes a reserve subject to the general law. One incident of that law is that it cannot be made available for sale until the expiration of 60 days after revocation of the reservation. In the present case the applications by the appellants were made within 60 days of the revocation of the reservation of the land from sale and lease, and for the reasons I have given I think that the land was not open at that time to be applied for, and, therefore, that the decision of the Supreme Court was correct and the appeal should be dismissed.

The matters to be determined arise in the same form in three appeals, which have accordingly been consolidated. The questions are these:—

(1)

Whether the revocation of the reservations from sale and lease, as expressed to be made by the Gazette notices of 15th July 1908, had taken effect before or on the dates of the several settlement lease applications, the validity of which is contested—the date of two of such applications being 13th August 1908, and the date of the remainder 13th September 1908?

(2)

Whether, on the dates of those applications, the lands, the reservation of which was revoked by the Gazette notices, were available for settlement lease?

These questions, in effect, resolve themselves into one, namely, whether the revocation of the reservations had taken effect before and at the date of those applications so as to enable the land to be made available to satisfy them. The answer to this depends on the answer to another question, stated by Cohen J. in the judgment now under appeal. It is this: whether land held under preferential occupation licence, and so reserved from sale or lease by virtue of sec. 3 of the Improvement Leases Cancellation Act 1906, is subject to sec. 6 of the Reserves Declaratory Act 1895? That enactment provides that after the commencement of that Act, of which it is part (27th March 1895) the revocation of any reservation from lease, or of any reservation from occupation licence, or of any reservation from lease and occupation licence, is not to take effect until after the expiration of 60 days from the day of the publication in the Gazette of the notice of the revocation. The settlement lease applications of the appellants associated with the Minister for Lands in this case were all made within that period of 60 days from the publication of the notice of revocation. If the revocation was not affected by sec. 6 of the Reserves Declaratory Act, the lands were available for the applications and the appeal succeeds. If the revocation was subject to the operation of the section named, then the lands were not available until 60 days after the date of the notice, and the appeal fails.

The Improvement Leases Cancellation Act, No. 42 of 1906, was passed after an inquiry had been held by Mr. Justice Owen, as a Royal Commissioner, into the administration of the Lands Department and the circumstances under which certain run-holders had obtained the acceptance of their applications for improvement leases under sec. 26 of the Land Act 1895. Acting under the authority of the second section of that Act the Royal Commissioner certified that certain of these leases had been granted under circumstances evidencing improper acts or serious irregularity, and should be dealt with under the Act. His certificates were notified in the Gazette, and under the same section the leases became cancelled and forfeited. They included all the lands now in question. By virtue of sec. 3, the former lessees at once became the holders of "preferential occupation licences" of the land of which their improvement leases had been taken from them, and the land became "reserved from sale and lease generally until such reservation" should be "revoked in whole or in part by notification by the Governor in the Gazette." It is the meaning of the words last quoted that we have now to determine. Where a reservation from sale and lease generally, effected purely by the operation of the new Act, has been revoked by the Governor, that is, of course, by the Governor in Council, does that revocation take effect instanter, or is its effect postponed, as in cases of revocation under the previous Acts, till the expiration of 60 days from the date of the Gazette containing the notice of revocation?

The revocations in these cases were notified by the Minister, as already stated, in the Gazette of 15th July 1908. In the same Gazette there appeared further notifications of the setting apart by the Minister of settlement lease areas, included in the areas of the cancelled improvement leases, which were to be made available for original settlement leases on the respective dates already mentioned, both within 60 days of the date of the revocation notices. The Minister's co-appellants applied for settlement leases within the areas set apart for that purpose on the respective dates on which the notices of the setting apart purported to make the lands available.

Of course, notwithstanding the revocations of the reservations from sale or lease, the former lessees continued to hold by virtue of their preferential occupation licences save as to any area covered thereby which might be lawfully disposed of. The contention of the respondents that the lands were not available for settlement leases on 13th August and 13th September 1908 means that they were not lawfully disposed of on those dates by the granting of the applications, and that the preferential occupation licences therefore remained in force.

An occupation licence is a very old tenure under the Land Acts. It was by an occupation licence that the pastoralist held Crown lands for grazing purposes under the Act of 1861. When that law was repealed and the Act of 1884 came into force, the runs were divided into leasehold areas, as to which pastoral leases were issued to the run-holder, and resumed areas, of which he was given an occupation licence of the same character as his former grazing right. He paid rent for his pastoral lease, and an appraised licence fee for his occupation licence. Sec. 81 of the Act of 1884, providing for the issue of these licences, shows that they were preferential so far as the pastoral tenant was concerned, though if he failed to apply for one, or forfeited or surrendered that which he had, the right to the occupation licence might be sold by auction or tender. Whether an occupation licence is preferential or not, the land held under it, unless within a reserve, is open to alienation by conditional sale or by any of the other tenures devised under the Acts with the view of encouraging the kinds of settlement distinct from purely pastoral occupation, though, in the case of some of these tenures, the land must first be set apart in special areas and a date notified in the Gazette on and after which it is to become available for such holdings. Sec. 33, the proviso to sec. 43 of the Act of 1889, secs. 3 (b), 4, and the second part of sec. 8 of the Act of 1895, may be referred to as showing under what circumstances preferential occupation licences are gained, how they are held, and the extent to which the lands held under them are subject to invasion under the law. It will appear clearly, from a reference to these sections among others, that the preferential occupation licence given by the Improvement Leases Cancellation Act differs in no respect from any holding of the same description under the preceding Acts. It is also clear, on the face of the Act in question, that, unless the term is explained by reference to preceding legislation on the subject, this Act creates a holding the incidents of which are entirely at large. Also, the "preferential licence fee," to be determined under sec. 4 (e), is unexplained as to its effect or the period for which it is payable until we turn back and find that it is the appraised annual occupation fee for such a licence, determined under the prior Acts by the Minister after appraisement by the local Land Board.

Now as to reservations. It may be remarked that the reservation under the Improvement Leases Cancellation Act is a temporary one. While power to reserve from sale was given by the Acts of 1861 and 1884, it was not until 1889 that a distinct power to reserve from lease or licence as well as sale was given. By sec. 39 of the Act of that year the Governor was empowered to make temporary reservations from sale or lease or licence in any particular manner, but not generally unless he so declared, by Gazette notice, and the Minister was granted a power to revoke or modify by similar means any such existing or future reserve. But by the Act of 1884, sec. 102, revocations of temporary reserves from sale could not take effect so as to authorize a sale of the lands comprised, until the expiration of 60 days after the revocation. The 39th section of the Act of 1889 therefore went on to provide that the revocation or modification should take effect in accordance with the 102nd section of the Act of 1884, so far as reserves from sale were concerned, that is at the end of 60 days, but that in respect of reserves from lease or licence, it should take effect at the date of the notification. And until 1895, when the Reserves Declaratory Act was passed, this distinction was preserved. By sec. 6 of that Act, however—a departure from its general declaratory character—revocations of reserves from lease (or from occupation licence), were placed on an even footing with revocations of reserves from sale. It is enacted that they must "not take effect until after the expiration of sixty days from the day of the publication in the Gazette of the notice of revocation."

Now it is argued that this very clear provision is to be ignored when we come to deal with the Improvement Leases Cancellation Act. The grounds of this argument seem to be that under that Act the temporary reservation from sale and lease generally is effected automatically and not by the Governor under a power (a provision which, by the way, so far from being an innovation, finds a precedent in the 46th section of the Land Act 1895 as applied to land acquired for purposes stated in that section); that the authority who may revoke it is to be the Governor, and not as in previous cases the Minister; and that the preferential occupation licences which follow the cancellations of the improvement leases come into operation automatically instead of being issued by the Governor. I find it impossible to see how the effect of the reservation is altered by its being accomplished by a short cut; or how its revocation is any the less a revocation because the authority which declares it is the Executive and not the Minister. Equally am I unable to see that this revocation is to take effect immediately instead of at the time prescribed by the Reserves Declaratory Act, because Parliament has chosen to grant the preferential occupation licences itself instead of directing some other authority to issue them. It is also urged that the provisions of sec. 4 alter the character of the revocation. These relate to the duties cast upon a special tribunal constituted to deal with the land comprised in the cancelled improvement leases. This Board has really to determine matters in relation to the applications of the former lessees for improvement leases or for leases under sec. 18 of the Act of 1903. The action of the Government in revoking the reserves had no necessary relation to their inquiries. The revocation might take place before their initiation or after their completion, so far as the exercise of the revoking power is concerned, although of course the reasonable course was for the revocation to be held over until the determinations of the Board were made known. If the Minister had made up his mind to set apart for settlement lease under the authority of the prior Land Acts so much of the lands as were not made, under the findings of the Board, the subject of the fresh improvement leases or of leases under sec. 18 of 1903, then he would of course wait as he did to see how much of these areas he would be able to dispose of by that method. But there is nothing in sec. 4 which helps one to conclude that the revocation authorized was not subject to the terms of the existing law. We were told that the Improvement Leases Cancellation Act was not to be read with the series of Land Acts. Well, with the exception of sec. 2 there is no part of it which can be understood without reference to those Acts. We should have to read them together even if the Interpretation Act 1897 did not provide, as it does by sec. 12, that an amending Act is to be construed with the Act which it amends, and as part thereof, unless the contrary intention appears in the amending Act. Certainly the arguments I have referred to do not furnish any evidence that Parliament intended this Act to be divorced in construction from the Land Acts which preceded it. If an ambiguity appeared on the face of the Improvement Leases Cancellation Act or by its necessary application to its subject matter, then we might look at the title for light. But the light thus gained is disconcerting to the appellants, for one of the purposes disclosed in the title is the amendment of the Crown Lands Acts; and its terms, like the body of the Act, are such as to show that the holdings to which it relates are part of the tenures created and regulated by the Land Acts, and that their nature and incidents can only be grasped by reference to these Acts. Read then with the other Land Acts, the terms of that of 1906 show plainly that the reserves dealt with are reserves from sale and lease within the meaning of these Acts, although effected by a special process: and that the revocation referred to is such a revocation as was already known to the statutory law. Indeed no special power of revocation is given. Resort is had to the existing power of the Government to revoke reserves, although the instrument of revocation is to be the Executive and not as previously the Minister. This in fact was a reverter to the method of revocation which prevailed under the Acts of 1861 and 1884, and which lasted until the Act of 1889. But in each instance the alteration has been in the method, and has not touched the governmental power or the limitation attached to its exercise.

I am of opinion that the conclusions of the Supreme Court are right; that is, that the questions must both be answered in the negative.

The land in dispute was part of an improvement lease in respect of which Mr. Justice Owen had issued his certificate under sec. 2 of the Improvement Leases Cancellation Act 1906. By the operation of that and the following section the lease, on notification of the certificate in the Gazette, became cancelled and forfeited, the lessee became the holder under preferential occupation licence, and the land became reserved from lease or sale generally until the reservation should be revoked in whole or in part by notification of the Governor in the Gazette. Afterwards the preferential licence was renewed for a year and the respondent Bank acquired the interest in it which they now represent. During the currency of the renewed licence, and considerably over a year after the Gazette notification of Mr. Justice Owen's certificate, the Governor issued a Gazette notification declaring that by virtue of sec. 3 of the Act he had as to certain portions of the land revoked the reserve. On the same date the Minister for Lands published a Gazette notification setting apart those portions for original settlement leases, and declaring that they should be available for that purpose on and after a certain date. That date was thirty days after the Governor's Gazette notification of revocation. On the day named the portions set apart were applied for as settlement leases and were afterwards confirmed to the applicants by the Land Board. During the proceedings for confirmation the respondents objected that the Governor's revocation of the reserve could not take effect until after the expiration of sixty days from the date of its notification in the Gazette, and that the lands applied for were therefore not open or available for settlement lease at the time when the applications were made. The Land Board overruled the objection. The Land Appeal Court, on appeal, took the same view, but submitted a special case for the opinion of the Supreme Court on the question involved. The Supreme Court, affirming the judgment of the Land Appeal Court, decided that the objection could not be sustained, and now this Court is asked to say whether that decision is right. If we had only to consider the Improvement Leases Cancellation Act 1906 the objection could hardly arise, for the revocation would take effect from the moment of publication in the Gazette. The respondents' contention is really based on the Reserves Declaratory Act 1895, sec. 6 of which enacts that the revocation of any reservation from lease shall not take effect until after the expiration of sixty days after the publication in the Gazette of the notice of revocation. It is, I think, clear that the Improvement Leases Cancellation Act 1906 must be held to be an Act amending the several Land Acts, and must, therefore, in accordance with the Interpretation Act 1897, sec. 12, be construed with them and as incorporated in them. Indeed, apart altogether from the Interpretation Act, the well known rules applicable in the interpretation of Statues make it impossible to construe the Act so as to be effective unless it is taken as modifying pro tanto in some cases, and incorporating pro tanto in other cases, many provisions of the Crown Land Acts. We must therefore, I think, take it as a starting point in the discussion of the question submitted that sec. 3 of the Act of 1906, and sec. 6 of the Reserves Declaratory Act 1895 must be read and construed as if they were part of the one enactment. Before considering the bearing of these provisions on one another, it is necessary to say something of the subject matter of the Act of 1896, of the object at which it is directed, and the method by which the legislature has directed that object shall be attained. It is unnecessary for the Court to inquire into the history of the Act, or to know anything more of the subject matter than appears in its provisions. It is intended to deal with certain portions of land to be definitely ascertained by Mr. Justice Owen's certificate. The Act operates upon those portions, when ascertained, and upon those only. The purport of the certificate is, to quote the words of sec. 2, that an "improvement lease" of the land "was granted or purported to be granted under circumstances evidencing improper acts or serious irregularity." The object of the legislature, apparent on the face of the Act, is to do what is fair as between the lessee, the Crown, and the public who are interested directly and indirectly in the administration of the public lands of the State. For the purpose of informing the Government as to all facts necessary to be considered, a special Board is created, and the lessee is permitted within a limited time to apply for a new lease. In order to enable the Government to deal with each case untrammelled by any rights under the settlement lease, that lease becomes by the operation of sec. 3 cancelled and forfeited on the Gazette notification of the certificate, and the lessee becomes the holder of a preferential occupation licence over the land which is by operation of the same section reserved from sale and lease generally until the reserve shall be revoked by the Governor. If after the determination of the Board the Government should decide to grant the lessee's application, the public have for the time being no further concern with the land. If, on the other hand, the Government should decide that the lessee's application for a new lease is to be refused, they may, as they think fit, either keep the lands under reserve or revoke the reserve and open them to public application. The Act is, therefore, on the face of it, not intended to be applicable to Crown lands generally. It has to do solely with certain specific portions of Crown lands and with the conduct and rights of the persons who held them. We have, therefore, these two enactments dealing with the revocation of reserves. Sec. 6 of the Act of 1895, on the one hand, enacting with reference to all Crown lands which may be reserved from lease generally that no revocation of such a reserve will be allowed to have effect until after the expiration of sixty days from the date of notification. We have, on the other hand, sec. 3 of the Act of 1906 providing definitely that the reserve effected by operation of the section on the specific lands effected by the Act shall remain in force until after it is revoked by the Governor's notification in the Gazette. The rule of construction to be applied in such cases is well known. It is, to so interpret the enactments that they shall be if possible consistent. But if they cannot be fairly read in such a way as to give full meaning to each consistently with the other, then one must give way, and the one to give way will be the general provision. In such a case the later special Act will be taken to have amended the earlier general Act in so far as the matters dealt with in the specific Act are concerned—(see the cases collected in Craies' Statute Law, 4th ed., at p. 203). The Court however will assume that the legislature, in enacting the sections as separate provisions of the same Statute or groups of Statutes, intended full effect to be given to each. It is only when there becomes apparent an inconsistency which it is impossible to avoid by any reasonable interpretation of the words used, that a Court will in general draw the conclusion that the legislature intended the later special Statute to repeal the earlier general Statute. I was at first disposed to think that there was in the case of these two Acts such an inconsistency; that unless the revocation was to operate immediately there would be difficulty in giving full effect to the provisions of the special Act in cases where the determination of the Board was favourable to the lessee. But on a fuller examination of the sections that difficulty disappeared. The second paragraph of sec. 3 must, I think, be read as a proviso to the first. On the Gazette notification of the certificate the land becomes reserved from sale and lease generally until the reserve is revoked, but subject to the exception that the lessee may make application in respect of the land for one or other of the classes of lease specified. On that interpretation the reserve from lease does not apply to his application, and a lease may be granted to him on a favourable determination of the Board without the delay of obtaining the Governor's revocation of the reserve and waiting for sixty days after that before the new title can be vested in him. When the determination of the Board is unfavourable to the lessee, or is of such a nature that the Government decides to displace him and throw the land open to other applications, there appears to be no reason why the incident of sixty days delay should not attach to revocations under the Act of 1906, as it does to revocations under the Reserves Declaratory Act 1895. Sec. 6 of the Reserves Declaratory Act 1895 on the face of it is not restricted to reservations and revocations declared and notified in accordance with the methods prescribed by existing Acts. It will apply to any reservation, and any revocation which comes reasonably within the ordinary meaning of those words as used in the section. Whether the reserve is notified as being by the Governor with the advice of the Executive Council or by the Minister for Lands, or whether it is revoked by one of these methods or by the other cannot affect the operation of the section. The delay of sixty days after the Gazette notice of revocation has been published is an incident which can be attached to any notice of revocation by whatever method issued, and unless the attaching of that incident to the notification of revocation under sec. 3 of the Act of 1906 would be inconsistent with some of the provisions of that Act, or would in some particular stand in the way of its effective operation, there would seem to be no reason why the incident should not attach to that Gazette notification as to any other Gazette notification of revocation issued under any of the Crown Lands Acts. After a careful examination of the Act of 1906, and of its objects and the method it has provided for their accomplishment, I am unable to see that the full and effective carrying out of the Act could be interfered with by interposing automatically a period of sixty days between the Gazette notification and the actual and effective operation of the revocation, nor can I find any portion of the Act which is inconsistent with that provision. There is, therefore, no valid ground on which consistently with giving full weight and effect to their respective provisions the two Statutes should not be read together. My opinion is that they must be so read, and that there must be attached to the revocation issued by the Governor under sec. 3 of the Act of 1906 the incident that it is not to take effect until the expiration of sixty days after the date of its notification in the Government Gazette. The land in question therefore continued under reserve from sale or lease until the expiration of that period. When it was applied for as a settlement lease only thirty days had elapsed, it was therefore not then open to settlement lease, and the Land Board came to an erroneous conclusion in confirming the application. It follows that the Land Appeal Court were wrong in upholding the confirmation. For these reasons I think that the Supreme Court took the right view of the enactments under consideration, and answered correctly the questions submitted in the special case for their consideration, and that, in my opinion, the appeal must be dismissed.

The Act No. 42 of 1906, the title of which includes the statement that it is to amend the Crown Lands Acts, was an Act to undo the public wrong of improperly granting certain improvement leases, and to restore the lands comprised in them to the Crown, to be again susceptible of being dealt with under the Crown Lands Acts already in force, the powers of which had been abused. With necessary safeguards introduced against possible injustice to the leaseholders, that shortly indicates the whole purpose and intent of the Statute. And when that position is once reached there does not seem to me any great difficulty in interpreting the Act. Notification in the Gazette of the certificate of Mr. Justice Owen worked a cancellation and forfeiture of the lease. That undid the grant, but left the ultimate disposal of the land in doubt. Before that doubt could be resolved it had to be determined whether the land ought to be granted on improvement lease at all, and, if so, on what term not exceeding 28 years, and at what rent and on what conditions whoever should become lessee; and, if so, whether in justice the former lessee, if he applied for a lease, should have the preference over all other persons, and, if not, whether he should be entitled to tenant right.

A special Board was to be appointed to consider and determine all these things, and in the meantime the land was declared reserved from sale and lease generally so to remain until the reservation was revoked by the Governor. Pending final determination, the former lessee was left in possession, as preferential occupation licensee, and with a special right of applying for an improvement lease within sixty days after cancellation of the lease. The amount of his licence fee was also determinable by the Board. It is obvious that the Act contemplates the determination of the Board before the Governor revokes the reservation, and that connotes the prior application of the former lessee or the lapse of the sixty days after cancellation, for otherwise the Board could not complete the duties assigned to it, and the Crown could not know how it might dispose of the land. Assuming, then, the complete determination of the Board, and assuming that to include a decision that the land should be thrown open for lease, the next step is to revoke the reservation by the Governor's notification in the Gazette. As soon as that is done, the land is restored to the ordinary operation of the Crown Lands Acts, qualified only by the determination of the Board and such provisions of the later Statute as are either expressly or by necessary implication a a qualification of those Acts. An express qualification exists in sec. 5.

It is said that such a necessary implication exists in respect of the provision for revocation. As I understand the argument, it may be put most strongly thus: The Act is a special Act; it effects a forfeiture of leases and imposes a statutory reservation from sale and lease, which is new and outside the provisions of the Crown Land Acts, and the enactment as to the revocation is equally new and outside those Acts, and consequently outside the provisions of sec. 6 of the Reserves Declaratory Act. But the purpose of the Act was to undo what had been wrongly done—that could only be effected by Statute. The interim reservation was incidental merely, and in order to afford full opportunity to the Executive, subject to the determination of the Board, to determine how best to dispose of the lands for the public benefit, without private injustice, and the revocation was merely to remove that temporary restriction as soon as the proper disposal of the land could be determined and the ordinary law set in motion again.

Revocation by the Governor is not a novel power. The power exists in sec. 101 of the Act of 1884 in respect of reservations from sale. Sec. 102 provides that in such case the land shall not be sold before the expiration of sixty days after revocation. By sec. 39 of the Act of 1889 the Minister is also given power of revocation of reservations from sale, and it is declared that his revocation shall "take effect in accordance with sec. 102 of the Principal Act."

This makes it clear that prohibition from sale for 60 days is what is meant by not "taking effect."

But as to revocation of a reserve from lease sec. 39 expressly provides that it should take effect "at the date of the notification."

In 1895 the legislature changed its mind and made revocation of a lease reservation "take effect" also only after 60 days from notification. The provision (sec. 6 of No. 16) is quite general—it is not limited to a Minister's revocation—it is a constantly speaking enactment applying to whatever mode of revocation the law may provide for, unless the contrary should appear by the latter enactment. Besides, as Dr. Cullen pointed out, in sec. 32 of the Act of 1889 there was at the time of the passing of the Act of 1895 an excellent reason for not limiting it to a ministerial revocation, namely, the fact that the Governor may by notification in the Gazette revoke a reservation from sale and from lease and licence.

The Act of 1895 added to sec. 102 of the Act of 1884 therefore fixed the policy of the law uniformly, that 60 days should in all cases elapse after revocations of reservations from sale and from lease before the land was dealt with, and therefore I see no necessary or even reasonable ground in the Act of 1906 for implying an intention on the part of the legislature that the general provisions of sec. 6 of the Act of 1895 should not apply to revocations under the latest Statute.

All the reason seems to me the other way. It is in the highest degree unlikely that Parliament desired a more hurried dealing with the very lands that had already been improperly disposed of, and that required so much trouble to restore. On the contrary, I think it far more consistent with the object of the Act to allow both to the Executive and the public the fullest period ordinarily provided by the law to consider what course they should respectively take with regard to these lands. If the legislature desired so marked and unexpected a departure from the ordinary consequence of a revocation, it is far more probable they would have inserted some specific words indicating their intention such as those that I have referred to in sec. 39 of the Act of 1889. But no such words appear. Where it was intended to vary the general law Parliament expressly so enacted, as by sec. 5 of the Act, by which the condition as to the quality of the land for improvement leases is abrogated.

No injustice or practical inconvenience to the former lessee can be suggested, even if that were sufficient to raise the supposed implication, and altogether I am of opinion that the decision of the Supreme Court was right and should be affirmed.

Appeal dismissed with costs. The Minister to pay the costs of the appeal in accordance with the undertaking between the parties.

Solicitor, for the appellants, J. V. Tillett, Crown Solicitor for New South Wales.

High Court of Australia

Minister for Lands (NSW) v Bank of NSW [1909] HCA 54; (1909) 9 CLR 322 (25 August 1909)

HIGH COURT OF AUSTRALIA