New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 91 ALJR 177, 339 ALR 367

The royal prerogative has been the focus of attention lately with the UK Supreme Court’s controversial ruling in the Brexit Case [2017] 2 WLR 583. But closer to home, and of more relevance to Queensland, the High Court has also recently considered the royal prerogative as it relates to Crown lands in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 91 ALJR 177, 339 ALR 367.

The matter involved a claim by the NSW Aboriginal Land Council to land which had formerly been the site of the Berrima gaol. Under the Aboriginal Land Rights Act 1983 (NSW), the land could be claimed by the Land Council if it was ‘not lawfully used or occupied’. The Land Council argued that the land was not ‘occupied’ even though security guards were kept on-site, the buildings were locked, and on weekends offenders performed their community service by tending the gardens. In the alternative, the Land Council argued that even if the land was occupied, that occupation was not lawful as use and occupation of Crown lands requires statutory authorisation. This was because, so the argument went, the Crown’s prerogative or non-statutory executive power to use and occupy Crown lands had been abrogated by the New South Wales Constitution Act 1855 (Imp). Along with introducing responsible government to New South Wales, that Act provided in s 2 that ‘the entire Management and Control of the Waste Lands belonging to the Crown … shall be vested in the Legislature of the said Colony’.

The success or failure of the argument had direct relevance for Queensland. Upon separation from New South Wales in 1859, Queensland inherited similar provisions which remain in force today as ss 30 and 40 of the Constitution Act 1867 (Qld). It has always been understood that the State’s occupation of Crown lands is a matter of prerogative or non-statutory executive power. The Land Council’s argument would have inverted that understanding, with potentially significant implications for the management of Crown lands.

In the result, the High Court split 5:2. In a joint-judgment, French CJ, Kiefel, Bell and Keane JJ found that the land was in fact ‘occupied’ (at [28]). Writing separately, Gageler J came to the same conclusion (at [90]). Accordingly, their Honours had to decide the second question of whether that occupation of the land had to be authorised by legislation because of s 2 of the 1855 Constitution. Their Honours held that the purpose of s 2 was to devolve control over waste lands to the colonial parliament as distinct from the imperial parliament, rather than to vest control in parliament to the exclusion of the executive. The wider purpose of the 1855 Constitution was to bestow responsible government on the colony. By transferring control over waste lands from imperial authorities to the colonial legislature, the power of the colonial executive to deal with waste lands came under the superintendence of the colonial legislature (at, [49]-[52] (French CJ, Kiefel, Bell and Keane JJ), [100], [131] (Gageler J). Accordingly, legislation is not required to occupy waste lands. But if legislation is passed, the executive must comply with it. It followed that the site of the former goal was being occupied – pursuant to the executive’s non-statutory power – and therefore could not be claimed by the Land Council.

In a dissenting judgment, Nettle and Gordon JJ, held that the land was not being occupied (at [189]-[192]). As a result, the question of whether occupation was or needed to be authorised by statute did not arise (at [197]).

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