Federal Court of Australia
Charlie on behalf of the North Eastern Peninsula Sea Claim Group v State of Queensland (No 2) [2024] FCA 612
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The separate question be answered as follows:
On the basis of the agreed facts filed on 17 February 2023 as amended, and such other evidence as the parties adduce, were the special leases listed in Attachment A to these orders, or either of them, invalid by reason that the responsible Minister did not sign the relevant lease instrument?
Answer: No.
2. The parties notify the Court as to whether they intend to seek any consequential orders by 4.30 pm on 27 June 2024.
3. The parties file and serve any submissions as to any consequential orders by 4.30 pm on 18 July 2024.
4. Any determination as to consequential orders will be made on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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RANGIAH J:
1 On 30 November 2022, Mortimer J (as the Chief Justice was then) made a consent determination recognising native title over certain waters and islands of the Torres Strait and northern Cape York in Queensland: see David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430.
2 In 1964 and 1985, special leases (the Special Leases) had been granted under s 203 of the Land Act 1962 (Qld) over an area on Albany Island in the Adolphus Channel off the north-eastern coast of Cape York Peninsula. As there was an unresolved controversy about whether the Special Leases were effective to extinguish native title, that area was excluded from the consent determination.
3 The issue presently before the Court concerns the validity of the Special Leases. On 22 September 2023, I ordered, pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), that the following separate question be determined:
On the basis of the agreed facts filed on 17 February 2023 as amended, and such other evidence as the parties adduce, were the special leases listed in Attachment A to these orders, or either of them, invalid by reason that the responsible Minister did not sign the relevant lease instrument?
4 The two leases listed in Attachment A of the order are:
(a) special lease SL28274 granted on 28 May 1964 in respect of Portion 18 on SO18 (the 1964 Special Lease); and
(b) special lease SL47434 granted on 28 November 1985 in respect of the same land (the 1985 Special Lease).
5 The parties are in agreement that if either Special Lease is valid, then its grant would be a “previous exclusive possession act” within s 23B(2)(c)(iv) and (viii) of the Native Title Act 1993 (Cth) that operated, under s 20(2) of the Native Title (Queensland) Act 1993 (Qld), to extinguish native title in relation to the area covered.
6 The applicant contends that the Special Leases are invalid because the Governor in Council purported to grant them under s 203 of the Land Act 1962 when the Governor in Council lacked legal authority to do so. The applicant argues that the responsible Minister was conferred with exclusive power under s 203 to issue the Special Leases, and this required the Minister to personally sign the instruments of lease. The applicant submits that as the Minister failed to do so, the leases were not validly issued.
7 For the reasons that follow, I have concluded that the leases were valid and the separate question must be answered, “No”.
Execution of the 1964 Special Lease
8 In respect of the 1964 Special Lease, the Minute of Proceedings of the Executive Council of Queensland from 9 April 1964 contain a minute proposing:
Special Leases of the areas of land mentioned in the attached Schedule marked “A” be issued to applicants named in said Schedule on the terms and conditions set forth in the Annexures thereto.
9 The minute was expressed to have been proposed, “at the instance of the Honourable Minister for Lands”. The minute was signed and approved by the Deputy Governor, acting for and on behalf of the Governor.
10 Schedule “A” to the minute identified Barrier Pearls Pty Ltd (Barrier Pearls) as the applicant for the proposed special lease. The “terms and conditions” of the proposed special lease were identified in the Schedule as those in Annexure 7. Annexure 7 referred to s 203(a) of the Land Act 1962 and identified the term of the lease, the purpose of the lease and a number of conditions that were to be imposed.
11 The lease instrument for the 1964 Special Lease had the heading, “Lease for Special Purposes, under Section 203(a) of the [Land Act]”. The recitals recorded that Barrier Pearls had made an application for the lease under that provision, and that:
[t]he Governor of Our State of Queensland, with the advice of the Executive Council thereof, has granted such application, and has agreed to issue a Lease of the said Land….
12 The instrument then stated that:
…We, in pursuance of the said Acts, “do hereby for Us, our Heirs and Successors, Demise and Lease unto the said BARRIER PEARLS PTY LIMITED…for Business Purposes…All that parcel of land particularly described in the First Schedule…for and during the term of twenty years….
13 The First Schedule identified the parcel of land that was the subject of the lease. The parcel was approximately five acres in area. The Second Schedule identified a series of conditions attaching to the lease.
14 The lease instrument was signed by the Deputy Governor and sealed with the Public Seal of Queensland.
Execution of the 1985 Special Lease
15 The Minute of Proceedings of the Executive Council of Queensland from 7 November 1985 were in a similar form to those referring to the 1964 Special Lease. The terms of the Minute proposed:
That Deeds of Grant and Instruments of Lease be issued, in accordance with the accompanying schedules marked “A”, “B” and “C”.
16 The 1985 Special Lease was included in Schedule “C”.
17 The lease instrument for the 1985 Special Lease was headed, “Special Lease under the [Land Act]”. The recitals record that the instrument was issued, “with the advice of the Executive Council of Our State of Queensland, and in pursuance of the provisions of s 203(a) of the [Land Act]”.
18 The 1985 Special Lease was issued to Barrier Pearls. The parcel of land that was the subject of the 1985 Special Lease was defined by reference to Schedule I of the instrument and its purpose was identified in that schedule as, “Business (Pearl Culture)”. The conditions of the 1985 Special Lease provided that, “[t]he Lessee shall use the leased land for Business (Pearl Culture) and purposes incidental thereto”. The lease term was for 10 years, commencing on 1 October 1985.
19 The 1985 Special Lease instrument was signed and approved by the Governor, his Excellency Sir Walter Campbell, and sealed with the Public Seal of Queensland.
20 It may be noted that the 1985 Special Lease was in respect of the same parcel of land that had been the subject of the 1964 Special Lease.
21 The applicant submits that the Special Leases are invalid because they were purportedly granted by the Governor in Council under s 203 of the Land Act 1962 when the power to “issue” special leases under that provision is held exclusively by the responsible Minister.
22 The applicant submits that the plain language of s 203 of the Land Act 1962 conferred power on the Minister to “issue” a special lease.
23 The term “issue” in s 203 is submitted to confer complete power upon the Minister to grant a special lease: that is, to prepare and execute such a lease for any Crown land. This is submitted to be consistent with numerous other provisions which use “issue” to refer to the grant of a lease.
24 The applicant submits that the concluding words of s 203, “subject to such conditions as to rent or otherwise as the Minister thinks fit”, are consistent with conferral of complete power to the Minister to decide and execute a lease instrument.
25 The applicant submits that s 203 envisaged that the Minister would make a decision to issue a lease and decide its conditions, then submit that unexecuted lease to the Governor in Council for approval, then, having obtained approval, execute the lease by signing it. The applicant relies on s 4 of the Statute of Frauds and Limitations of 1867 (Qld) and ss 10 and 11 of the Property Law Act 1974 (Qld) which required that leases must be granted in writing signed by the party granting the lease to be valid to pass an interest in the land.
26 The applicant accepts that the Minister made the decision to issue the Special Leases and made a recommendation to the Governor in Council for approval. The dispute is whether the failure of the Minister to execute the relevant lease instruments constituted a failure to “issue” the Special Leases. The applicant submits that “issue” in s 203 requires a physical act of signing the lease instrument done by the Minister personally; and it is insufficient for the Minister to cause the lease to be executed by the Governor in Council.
27 The applicant points to s 179 of the earlier Land Act 1910 (Qld) which provided that the Governor in Council “may issue a lease” and also provided for the Governor in Council to determine the conditions. The applicant submits that by deliberately changing the repository of power from the Governor in Council under the Land Act 1910 to the Minister under the Land Act 1962, Parliament intended that the function in respect of special leases formerly performed by the Governor in Council was to be performed by the responsible Minister.
28 The applicant contrasts s 205(1) of the Land Act 1962 with s 203. The former specifically empowers the Governor in Council to issue a special lease in respect of land, which, in the opinion of the Minister is abnormally costly to develop. It is submitted that, in contrast, a special lease under s 203 is limited as to area and period and is entrusted to the Minister.
29 The applicant submits that if a construction were adopted that authorised the Governor in Council to both grant approval to the Minister to issue a lease and execute the lease, the Minister would be left with no work to do under the provision.
30 The applicant submits that s 203 was the sole source of the power to create a special lease, and s 6(1) had no application since the power vested in the Governor in Council to issue a lease under that provision was expressly qualified by the words, “[s]ubject to this Act”. It is submitted that a number of provisions authorise a decision-maker other than the Governor in Council to deal in Crown land, demonstrating that it was not unusual for the Land Act 1962 to confer such a power on a Minister.
31 The applicant relies on Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510 (Forrest). In that case, the High Court explained at [64] that in respect of the grant of a right to exploit the resources of a State:
…statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.
(Footnote omitted.)
32 The applicant submits that as the relevant statutory conditions under the Land Act 1962 were not observed, the Special Leases are invalid.
Submissions of the State of Queensland
33 The State submits that the applicant’s case that the Special Leases are invalid should be rejected for two reasons. First, the Minister in fact “issued” each Special Lease under s 203 of the Land Act 1962. Second, even if the Minister did not issue the Special Leases, they were validly granted by the Governor in Council under s 6(1) of the Land Act 1962.
34 The State submits that s 6(1) of the Land Act 1962 vested overall power to dispose of and deal with Crown land in the Governor in Council subject to legislative control, reflecting a feature of land law in Queensland dating from Queensland’s establishment as a colony. The State submits that the power of the Governor in Council to grant a lease of any Crown land under that provision was not affected by s 203.
35 The State contrasts the advantages of a lease granted under s 6(1) with a lease issued under s 203, pointing to anomalies it is said the legislature cannot have intended. The State submits that s 6(2) ensured that leases made by the Governor in Council in the prescribed form would be valid without any requirement of registration, and would vest upon their grant rather than only on entry into possession. If the power to create special leases of the kind described in s 203 were placed in the hands of the Minister alone, to be effective, the special leases would need to be enrolled in a register and could not vest upon being made. In addition, such leases would be unable to be granted to the Commonwealth under s 6(6). The State argues that, given that Parliament had dispensed with these requirements for Crown land around the turn of the century, and that these requirements would conflict with all other leases of Crown land under the Land Act 1962, the applicant’s construction should not be accepted.
36 The State points to statutory provisions and regulations with which the applicant’s construction of s 203 is said to conflict:
(a) Section 202 contemplated that a person who purchased a special lease at auction was entitled to the “issue” of a special lease. Consistently with s 6, the Governor in Council would have had to issue that lease, for no power to issue the lease was conferred on the Minister.
(b) Section 204 governed the terms, conditions and rent of special leases issued under Part VIII, Division 1, including leases issued under ss 203 and 205. Section 204 did not treat special leases issued under s 203 as a distinct kind of lease that had little in common with other special leases, all of which were issued by the Governor in Council.
(c) Section 7 empowered the Governor in Council to grant a lease in the name of deceased persons where they were, or would have been, entitled to the grant of that lease. That broad power is difficult to reconcile with the idea that a special lease of the kind under s 203 could only be issued by the Minister.
(d) Under the Land Regulations 1962 (Qld), the prescribed forms for special leases made it clear that the leases were to be executed by the Governor in Council using the public seal of Queensland. There was no provision for Crown land to be issued by the Minister using some different process.
37 The State submits that the Minister’s power under s 203 to “issue” a special lease should be interpreted as meaning, “cause to be issued”. The submission continues that by the Minister recommending to the Executive Council that the Governor in Council approve the special Leases, and the Governor acting in accordance with the convention of acting on the advice of the Executive Council, the Minister caused the Special Leases to be issued.
38 The State also contests the applicant’s submission that if s 203 were construed as authorising the Governor to both approve the Minister issuing a lease and execute the lease, the Minister would have no work to do. First, the State submits that the applicant’s construction assumes “issue” in s 203 refers to the execution and creation of a lease, whereas the Land Act 1962 does not define or otherwise explain what “issue” means, and uses the word “issue” for a variety of purposes. Second, to give effect to the unity of the statutory scheme and accord with the principle of harmonious operation, the Court may be required to adjust the meaning of “issue” in s 203 from its meaning under other provisions. Third, the principles of responsible government mean that the Governor would act in accordance with ministerial advice. Fourth, the word “issue” can be read as referring to the Minister’s role in bringing about the demise by the Governor, in the form of a recommendation to the Governor in Council that the demise be made by execution of the lease document.
39 For these reasons, the State submits that the leases were valid.
Submissions of the Commonwealth
40 The Commonwealth contends that the Special Leases were validly issued in accordance with ss 6 and 203 of the Land Act 1962. The Commonwealth submits that the Minister would “issue” the lease by advising the Governor in Council to exercise their powers and thereby, bearing in mind the convention that the Governor acts on the advice of their Ministers, obtaining formal approval for that course. The Commonwealth submits that the Minister’s power to “issue” a lease is an administrative act and is not a power to grant a lease or demise land. It is submitted that another way of expressing the concept is that the Minister “issues” a lease by causing the Governor in Council to grant the lease under the power in s 6(1).
41 In submitting that “issuing” a lease under s 203 does not mean “granting” a lease, the Commonwealth contrasts s 78(1) (the Minister may “grant” an occupation licence) with ss 54(5)(a) and 93(3) (the Minister may “grant” a new lease). The Commonwealth also submits that ss 160, 165 and 205, which expressly empower the Governor in Council to issue a new lease or a lease, must be understood in the context of the Governor in Council having been vested with the power to demise land under s 6(1).
42 The Commonwealth submits that the only power to demise is that reposed in the Governor in Council under s 6(1). It is submitted that the whole scheme of the Land Act 1962 is based on the general power vested in the Governor in Council being applied to any grant or demise of Crown land in respect of grants of fee simple and all the various kinds of demises of land.
43 The Commonwealth points out that ss 198 to 202 set out a process of public auction for special leases, whereas s 203 deals with the issue of special leases without notification, not based on any market process, and submits that the evaluation and acceptance of the application occurred contemporaneously with the decision to demise or deal with the relevant land. The Commonwealth then submits that s 205 only applied where the Minister formed the opinion that the land is abnormally costly to develop, and empowered the Governor in Council, “after or without by public advertisement inviting applications therefor, issue a special lease in pursuance of this Division”. The Commonwealth submits that, reading these provisions harmoniously, s 205 acknowledged that the Governor in Council would issue a lease under either the ss 198 to 202 pathway or the s 203 pathway, either through a public market-based process or without notice.
44 The Commonwealth further submits that even if a special lease were created inconsistently with s 203, the lease would not be invalid, as leases that complied with the two requirements in s 6(2) would be valid. They submit that the regulations prescribing the form of special leases were framed on the basis that the Governor in Council would execute them.
45 Further, the Commonwealth submits that nothing in s 203 indicated that it was intended to supplant the Governor in Council’s power to grant, demise or otherwise deal with Crown land under s 6(1), and there was nothing in the terms of s 203 that indicated an irregularity in the grant of a lease would result in its invalidity (cf s 345).
46 Finally, the Commonwealth submits that Forrest can be distinguished from the present case, where the requirement under s 203 cannot be characterised as an essential preliminary, the invalidity would arise from the indeterminacy of a single word (as opposed to a clearly articulated rule), and interpretation of the word “issue” as going to jurisdiction could have implications for the property rights of third parties (rather than those with some responsibility for non-observance).
47 The Commonwealth submits that the Special Leases are valid either because the applicant’s construction fails to have regard to s 6 of the Land Act 1962, and the Governor in Council possessed the power to deal with land and the Minister could issue a special lease with the approval of the Governor in Council, or because any irregularity in the process by which the Special Leases were created did not render them invalid.
Submissions of the applicant in reply
48 In reply, the applicant submits that the State’s submission concerning the granting of leases by the Governor in Council generating advantages not present for leases granted by the Minister ought to be rejected, as there is no reason to think that the exercise of the Ministerial discretion to grant a special lease is not effective according to its terms.
49 The applicant argues that shifting the statutory power to lease unallocated State land from the Governor in Council to a responsible Minister is not radical, as was demonstrated by the amendment of s 15 of the Land Act 1994 (Qld) in 2007. They further submit that a change of the repository of power to grant a special lease should operate according to its terms, not previously operative common law principles.
50 The applicant submits that an inability to grant a special lease to the Commonwealth (which the State suggested would flow from the Commonwealth’s construction) was obviated by overriding Commonwealth legislation.
51 The applicant dismisses the State’s construction of “issue” on s 203 on the basis that it would produce a strained construction whereby the Minister required the approval of the Governor in Council to consider an application and make a recommendation to the Governor in Council; it would ignore the role of the Land Administration Commission as the body under the Land Act 1962 responsible for considering and evaluating applications; and the construction of the word “issue” would apply to other Ministerial functions under the Land Act 1962, which would be implausible.
52 The applicant also argues against the Commonwealth’s submissions. The applicant submits that the Commonwealth’s construction of the word “issue”, whereby the Minister issues a special lease by making a recommendation to the Governor in Council, rests on s 6 being the source of power to grant special leases. It is submitted that this does not explain the change between the Land Act 1910 (where s 179 conferred the power to issue special leases upon the Governor in Council) and the Land Act 1962 (where under s 203 the responsible Minister issued special leases). The applicant submits that the Commonwealth’s construction of “issue” as a clerical function rather than a statutory power is incompatible with the context.
53 Section 6 of the Land Act 1962 appeared in Part II, concerning “Administration”, in a Division headed “General Provisions”. The marginal heading reads “Grants and leases”.
54 Section 6 provided, relevantly:
Grants and leases (1910, s. 6)
(1) Subject to this Act, the Governor in Council may, in the name of Her Majesty, grant in fee-simple, or demise for a term of years or in perpetuity, or deal otherwise with any Crown land within Queensland.
(2) The grant or lease shall be made subject to such reservations and conditions as are authorised or prescribed by this Act or any other Act, and shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated.
…
(6) The power under this Act of the Governor in Council, in the name of Her Majesty, to grant in fee-simple, or demise for a term of years or in perpetuity any Crown land within Queensland includes power to make such a grant or demise to the Commonwealth of any Crown land in Queensland acquired by the Commonwealth by agreement between the Commonwealth and the Governor in Council (who is hereby thereunto authorised) or between the Commonwealth and any person or authority thereunto authorised by any other Act of the Parliament of this State.
55 Section 203 appeared in Part VIII, Division I of the Land Act 1962, which was concerned with “special leases”.
56 Section 203, as it applied on 28 May 1964, provided:
Issue of special leases without notification (1910, s. 179)
The Minister, with the approval of the Governor in Council, may, without notification published in the Gazette, issue to any person a special lease of—
(a) any Crown land, for any manufacturing, industrial, residential or business, or for any racecourse or recreational purposes; or
(b) any land reserved and set apart for public purposes, for any purpose not inconsistent with the reservation,
for such term not exceeding thirty years and subject to such conditions as to rent or otherwise as the Minister thinks fit.
57 Section 204 then set out restrictions upon the terms of the lease and certain conditions that must be included.
58 Section 203, in its form on 28 November 1985, provided:
Issue of special leases without notification (1910, s. 179)
The Minister, with the approval of the Governor in Council, may, without notification published in the Gazette, issue to any person a special lease of—
(a) any Crown Land;
(b) any land reserved and set apart for public purposes, for any purpose declared by the Governor in Council to be not inconsistent with the reservation or this Act,
subject to such conditions as to rent or otherwise ad the Minister thinks fit.
The powers, authorities, functions and duties conferred or imposed by or under this section upon the Governor in Council or Minister with respect to land shall apply and extend and those powers and authorities may be exercised and those functions and duties performed with respect to layers and strata below and air space above the surface of such land.
The term of such a lease shall not exceed thirty years except where—
(c) the proposed conditions of the lease require the erection of substantial structural improvements which, in the opinion of the Minister, would be abnormally costly; or
(d) by reason of a proposed condition of the lease or a provision of this Act the tenure of the land in question could not be converted under section 207 of this Act,
when the term of such a lease shall not exceed seventy-five years.
If there are improvements on the land the declared or provisional value thereof shall be notified to the person to whom the offer of the issue of a special lease is made.
Such person shall pay the declared or provisional value of the improvements within one month or such extended period as the Minister, in his discretion, in a particular case, allows, after the date when he accepts the offer.
The provisions of Division II of Part X of this Act shall, with and subject to all necessary adaptations, apply as if the offer were an opening or sale notification in respect of the land.
Principles of statutory interpretation
59 It is established that the task of statutory construction involves the attribution of meaning to statutory text: Thiess v Collector of Customs (2014) 250 CLR 664 at [22].
60 In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (SZTAL) at [14], Kiefel CJ, Nettle and Gordon JJ held that:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(Footnotes omitted.)
61 Further, in SZTAL Gageler J (as the Chief Justice was then) held at [37]–[39] that:
…The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.
Integral to making such a choice is discernment of statutory purpose….
(Footnotes omitted.)
62 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the plurality of the High Court explained at [69] that:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
63 In Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority (2020) 280 FCR 397, Perry and Stewart JJ considered the meaning of “context” at [48]:
Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”. To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation. As a result, as Dawson J also explained with respect to Victoria’s equivalent to s 15AA, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction”. That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.
(Citations omitted.)
64 There is no doubt that the Governor in Council purported to issue the Special Leases, and to do so under s 203 of the Land Act 1962. The lease instruments expressly stated they were issued under s 203. They were signed for or on behalf of the Governor.
65 The applicant’s contention is that the Special Leases are invalid because the requirement of s 203 of the Land Act 1962 for the Minister to “issue” a special lease required that the Minister sign the lease instrument. It is clear that the Minister did not sign either of the Special Leases.
66 At this stage, it is necessary to identify a matter of terminology and substance that features heavily in the parties’ arguments. The applicant argues that the power of the Minister to “issue” a lease under s 203 was a power to “grant” a lease, which in turn has the same meaning as “demise” (an expression used in s 6(1)). The meaning of “grant” and “demise” in the context of a lease was considered by McHugh J in Western Australia v Ward (2002) 213 CLR 1 at [484]:
The usual words by which a lease is made are “demise and lease”, “lease”, “let” and “grant”.
67 Justice McHugh continued at [490]:
“[D]emise” is a technical term whose effect is to transfer the whole, or in the case of leaseholds part, of the estate of the grantor to the grantee. When it is used in an instrument – whether the instrument is a statute, a deed or a contract – it means that an interest in land has passed from the grantor to the grantee.
68 Accordingly, the applicant’s submission must be that the Minister’s power to, “issue to any person a special lease”, under s 203 was a power to transfer an interest in Crown land to a lessee under a lease. As the applicant’s construction of “issue” is in dispute, I will generally use the expression “grant” or “demise” when referring to a transfer of an interest in Crown land under a lease.
69 Underlying the applicant’s contention that the Special Leases are invalid because they were not “issued” by the Minister is a premise that s 203 was the only provision of the Land Act 1962 that authorised the Special Leases to be granted, and that no provision authorised the Governor in Council to grant the Special Leases.
70 The State submits that the applicant’s contentions should be rejected for two reasons. First, the requirement under s 203 of the Land Act 1962 that the Minister “issue” the special lease was satisfied by the Minister deciding that the Special Leases ought to be issued and causing the Governor to issue the leases; and the Minister was not required to personally sign the instruments. Second, s 6(1) of the Land Act 1962, authorised the Governor in Council to grant the Special Leases and they were validly granted by the Governor in Council under that provision. The first of these arguments seems to involve acceptance that the power of the Minister to “issue…a special lease” under s 203 means granting such a lease, although there are some aspects of the State’s submissions that suggest a contrary position.
71 The Commonwealth argues that “issue” in s 203 does not mean “demise” or “grant”, so that the provision conferred no power on the Minister to transfer an interest in Crown land. The Commonwealth submits that the only power to demise or grant a lease was that reposed in the Governor in Council under s 6(1). The Commonwealth submits that the Minister’s power to “issue…a special lease” in s 203 involved the Minister proposing that the Executive Council recommend that the Governor in Council grant a lease, and thereby securing the grant of the special lease by the Governor in Council under s 6(1). The Commonwealth relies upon the principle that the Governor in Council, “acts on the advice of his Ministers, and it is to be expected that such advice will be based upon the recommendation of the Minister in charge of the Department concerned”: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 349. In this way, “issue” refers to an administrative act performed by the Minister and not to a grant of a lease by the Minister.
72 There are, accordingly, three different contentions as to the source or sources of power to demise or grant a special lease of the kind described in s 203:
The applicant submits that s 203 conferred that power exclusively on the Minister (“issue” meaning “demise” or “grant”), and the Governor in Council accordingly had no power under s 6(1) to grant such a lease.
The Commonwealth submits that s 203 conferred no power on the Minister to demise or grant a special lease of the kind described in that section (“issue” referring to procuring a demise by asking the Executive Council to recommend the making of the demise to the Governor in Council, and not referring to the transfer of an interest in Crown land), and that the only power to grant a lease was that reposed in the Governor in Council under s 6(1).
The State submits there were concurrent powers in the Governor in Council under s 6(1) and the Minister under s 203 to grant a lease of the kind described in s 203 (the word “issue” meaning “grant” or “demise”, although the State’s submission is ambivalent).
73 The applicant conceded that if either the Commonwealth’s or the State’s construction is correct, the Special Leases were validly granted under the power of the Governor in Council under s 6(1).
74 However, if the applicant’s construction is correct, it will be necessary to go on to consider the State’s alternative argument that the Minister did “issue” (grant) the Special Leases by causing the Governor to sign the lease instruments.
75 It is convenient to begin by considering the parties’ arguments about the meaning of “issue” in s 203.
The meaning of “issue” in s 203
76 Section 6(1) of the Land Act 1962 provided that:
Subject to this Act, the Governor in Council may, in the name of Her Majesty, grant in fee-simple, or demise for a term of years or in perpetuity, or deal otherwise with any Crown land within Queensland.
77 As has been explained, the power of the Governor in Council to “demise” was a power to transfer an interest in Crown land by granting a lease.
78 The authority of the Governor in Council under s 6(1) was expressed to be, “Subject to this Act”. The applicant submits that under the terms of s 203, the power to “issue” (or demise or grant) a special lease of the kind dealt with in that provision was conferred exclusively upon the Minister, thereby confining the general power possessed by the Governor in Council under s 6(1).
79 At the time of the 1964 Special Lease, s 203 provided:
The Minister, with the approval of the Governor in Council, may, without notification published in the Gazette, issue to any person a special lease of—
(a) any Crown land, for any manufacturing, industrial, residential or business, or for any racecourse or recreational purposes; or
(b) any land reserved and set apart for public purposes, for any purpose not inconsistent with the reservation,
for such term not exceeding thirty years and subject to such conditions as to rent or otherwise as the Minister thinks fit.
80 At the time of the 1985 Special Lease, the terms of s 203 were not relevantly different.
81 For the reasons that follow, I prefer the applicant’s construction of the verb “issue” in s 203 as demising or granting a lease to the Commonwealth’s construction as involving the Minister merely making a recommendation that the Governor in Council grant a lease under s 6(1) (which can naturally be expected to be adopted by the Governor in Council).
82 The parties have located very few authorities bearing upon the meaning of the word “issue” in any context comparable with s 203 of the Land Act 1962.
83 It may be observed that, in the context of leases under s 6 of the Land Act 1910 and s 6 of the Land Act 1962, in Wik Peoples v Queensland (1996) 187 CLR 1 at 68, 80, 81, 88 and 97, Brennan CJ used “issue” synonymously with “demise” or “make”. I do not suggest that this is authority for the proposition that the same meaning applies under s 203, but it is instructive to note that in some legal contexts they may have the same meaning.
84 The noun “issue” has been defined as, “[t]he act of delivery; emission; sending”: Peter E Nygh and Peter Butt (eds), Butterworths Concise Australian Legal Dictionary (Butterworths, 2nd ed, 1998). As a verb, the corresponding meaning is, “to deliver, emit or send”.
85 In my opinion, in the context of s 203, the verb “issue” may refer to demising or granting a lease, or it may refer to an administrative act involving creation and delivery of an instrument of lease.
86 The Commonwealth submits that the historical position supports its submission that s 6(1) provided the only power under the Land Act 1962 that allowed the transfer of an interest in Crown land.
87 When Queensland was established as a colony in 1859, the power and authority to grant and dispose of Crown land was vested in the Governor in Council subject to legislative control. The Letters Patent of 6 June 1859 issued to Sir George Bowen, the first Governor of Queensland, stated:
And we do hereby give and grant to you the said Sir George Ferguson Bowen full power and authority by and with the advice of the said Executive Council to grant in our name and on our behalf any waste or unsettled lands in us vested within our said colony which said grants are to be passed and sealed with the Great Seal of Our said colony and being entered upon record by such public officer or officers as shall be appointed thereunto shall be effectual in law against us our heirs or successors provided nevertheless that in granting the disposing of such lands you do conform to and observe the provisions in that behalf contained in any law which is or shall be in force within our said colony or within any part of our said colony for regulating the sale and disposing of such lands.
(Emphasis added.)
88 In Bone v Mothershaw [2003] 2 Qd R 600, McPherson JA (Williams JA and Byrne J agreeing) discussed the history of s 6(1) of the Land Act 1962 and its predecessors before concluding at [18]:
…The primary function of s. 6(1) and other such legislation is facultative. Its object and effect are to confer on the Crown legislative, as distinct from prerogative, authority to grant waste lands, and so to transfer the power of doing so from the uncontrolled discretion of the Crown to the Governor in Council acting under the direction of the legislature, while at the same time limiting the range of interests that can be granted in such land to those designated in the section. Crown land may be granted, demised or dealt with only “subject to this Act”.
89 The power under s 6(1) to grant an estate or interest in land (relevantly, here, a leasehold interest) was subject to the provisions of the Land Act 1962 that otherwise regulated such a transfer. Accordingly, s 6 provided that the Governor in Council, in the name of the Crown, could demise Crown land in Queensland for a term of years or in perpetuity (s 6(1)); that the demise was subject to reservations and conditions prescribed by an Act (s 6(2)); the demise was to be made in “the prescribed form” (s 6(2)); and that the lease “so made” was valid and effectual to vest in the person the interest stated (s 6(2)).
90 The Commonwealth submits that the language of s 203 did not demonstrate any intention to change the long-standing position that only the Governor in Council could demise Crown land in Queensland.
91 However, there are numerous examples in the Land Act 1962 of “issue” being used as a verb to refer to demising Crown land or granting a lease, or as a noun to refer to a lease that has been or will be granted:
s 5 definition of “lessee” (“includes…any person who, having complied with all requirements of this Act prescribed to be complied with by him before the issue of the lease, is awaiting the issue of the lease”);
s 5 definition of “pastoral lease” (“includes a pastoral holding…the lease whereof was issued”).
s 7 (“the Governor in Council may nevertheless…issue such grant or lease”);
s 58(2) and (3)(b) (a person shall be “entitled to the issue of a lease”);
s 61(a) and (d) (“a pastoral lease issued”), and (b) (“the lease shall be issued to him”);
s 62(3) (“the lease whereof issued”)
s 73(1) (“a new lease…shall be issued”);
s 83(1) and (4) (a lease “may be issued”);
s 86(2) (“to hold any new lease of the whole or part of such selections issued”);
s 99(2) and (3)(b) (“entitled to the issue of a lease in his name”);
s 102(a) (“the lease shall be issued to him”);
s 103 (“shall be entitled to the immediate issue of his lease”);
s 160(1) (“the Governor in Council shall issue a new lease to him”);
s 165(1) (“the Governor in Council shall issue a new lease to the late lessee”);
s 202 (“shall…be entitled to the issue of a special lease”); and
s 205 (“the Governor in Council…may…issue a special lease”).
92 However, the phrases, “shall be deemed to have been issued”, and, “shall be deemed to have issued”, were used in ss 4(11) and (12) respectively in reference to permits to destroy trees and noxious plants. The issuing of such permits obviously did not operate to effect any transfer of an interest in Crown land.
93 The Commonwealth contrasts the use of the word “issue” under s 203 with provisions specifically providing that the Minister may “grant” a licence or lease. Under s 78(1), the Minister may “grant” an occupation licence, and under ss 54(5)(a) and 93(3), the Minister may “grant” a new lease. It is true that s 203 does not specifically accord a power to, “grant a special lease”.
94 However, it can be concluded that where “issue” was used in the Land Act 1962 in reference to a lease, it generally referred to a demise or grant of a lease of Crown land.
95 Further, the language and structure of s 203 does not fit with the Commonwealth’s submission that the Minister’s power to “issue” a special lease was exercised by merely making a recommendation that the Governor in Council authorise the grant of the lease. Section 203 provided that the Minister, “with the approval of the Governor in Council”, may, “issue to any person a special lease”. The provision in its terms distinguished between the obtaining of the approval and the issuing of the special lease. It envisaged that the Minister would do two things: first, obtain the approval of the Governor in Council to issue the special lease; and, second, issue the special lease. The section assigned the task of “issuing” the special lease to the Minister, not the Governor in Council. In my opinion, the Minister’s power was not exercised by merely making a recommendation that the Governor in Council grant a lease. It required the Minister to take another step after obtaining the approval of the Governor in Council, namely issuing the lease. In this sense, the power of the Minister to “issue” a lease involved granting the lease.
96 This view finds support in the legislative history. Under s 179 of the Land Act 1910, the Governor in Council was empowered to “issue” a lease for any manufacturing, industrial, residential, or business purposes, or for any racecourse or recreation purposes, for a term not exceeding thirty years. In that context, the power of the Governor in Council was to demise or to grant a lease of Crown land. The equivalent kind of lease under the Land Act 1962 was a special lease under s 203, where the power to “issue” the lease was now reposed in the Minister. The retention of the word “issue” suggests a legislative intention that the word should retain the same meaning: cf Baini v R (2012) 246 CLR 469 at [43]. That suggests that the power of the Minister under s 203 was to demise or to grant a lease of Crown land.
97 In addition, the other provisions concerning special leases under Part VIII point to the power under s 203 to “issue” a special lease being a power to demise or grant a lease. Section 198(1) allowed the Minister, “with the approval of the Governor in Council”, to, “cause to be offered for sale by public auction as a special lease”, certain Crown land. That provision contemplated that the Minister would first obtain the approval of the Governor in Council before causing the land to be offered for sale as a special lease. There was symmetry with s 203 in the sense of the Minister being required to do an act after obtaining approval. Section 202 then provided that the purchaser of any lot shall, “be entitled to the issue of a special lease of the land comprised in the lot”. In this context, “issue” referred to the Governor in Council demising or granting a special lease.
98 Section 205 provided that with respect to land which the Minister considered abnormally costly to develop, the Governor in Council could, “issue a special lease”. Again, “issue” referred to demising or granting a lease. The power to “issue” a special lease in Part VIII consistently referred to the power to demise or grant a lease.
99 Another indication that power to “issue” under s 203 enabled the Minister to grant a special lease is found in the stipulation that the lease was, “subject to such conditions as to rent or otherwise as the Minister thinks fit”. The conferral of power on the Minister to determine conditions of a special lease issued by the Minister can be compared with the conferral of power on the Governor in Council under ss 199(2)(b) and 205 to determine conditions of special leases granted by the Governor in Council. That comparison suggests that the power to determine (subject to statutory restrictions) the conditions of a special lease was conferred in the entity conferred with power to grant the special lease.
100 I reject the Commonwealth’s submission that the Minister’s power under s 203 to “issue” a special lease merely involved recommending that the Governor in Council grant a lease. In my opinion, the power of the Minister under s 203 to “issue” a special lease was to effect a transfer of an interest in Crown land by demise or granting a lease.
101 In the discussion that follows, the word “issue” should be taken to have the same meaning in respect of a lease as “grant” or “demise”.
Whether s 203 conferred the Minister with exclusive power to issue a special lease of the kind described in that provision
102 The next question is whether the legislature by conferring power upon the Minister to issue a special lease of the kind described in s 203, excluded the power of the Governor in Council to grant a lease of that kind under s 6(1) of the Land Act 1962.
103 Section 203 did not in its terms exclude the broad power of the Governor in Council under s 6(1) to grant a lease of the kind described in s 203. The power under s 6(1), on its face, applied to a demise of any kind. If it is to be determined that the power of the Governor in Council was excluded in respect of the kind of special lease described in s 203, that exclusion must appear by implication from the context.
104 The applicant submits that its construction of the limitation upon the power under s 6(1) is supported by the principle from Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern). It that case, Gavan Duffy CJ and Dixon J held at 7 that:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
105 In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom), Gummow and Hayne JJ explained at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Footnotes omitted.)
106 In Nystrom, Heydon and Crennan JJ held at [165] that the principle in Anthony Hordern had no application for reasons including that:
…[T]here is no repugnancy between the two powers. In fact, they are consonant with each other.
107 The applicant’s argument that s 203 confers exclusive power on the Minister to issue a special lease of the kind described in that section requires identification of the characteristics of a lease of that kind. Such a lease was over any Crown land. It was for any manufacturing, industrial, residential or business, or for any racecourse or recreational purposes; or for land reserved and set apart for public purposes, for any purpose not inconsistent with the reservation. It was for such a term not exceeding thirty years. The applicant’s submission must be that the Governor in Council has no power under s 6(1) to issue a lease with that combination of characteristics.
108 The applicant advances their argument that the Land Act 1962 conferred power exclusively on the Minister to issue a special lease of the kind described in s 203 by contrasting the repository of that power with the repository under s 179 of the Land Act 1910. Section 179 of the Land Act 1910 conferred on the Governor in Council the power to “issue a lease’ while s 203 of the Land Act 1962 confers on the Minister the power to “issue a special lease” for similar purposes. The applicant submits that the deliberate change of the repository of power in the Governor in Council under the Land Act 1910 to the Minister under the Land Act 1962 in respect of a similar kind of lease, demonstrates that Parliament intended that the function in respect of special leases formerly performed by the Governor in Council was thereafter to be performed exclusively by the responsible Minister. I accept the applicant’s argument to be persuasive, although it is far from decisive.
109 It may be observed that s 6(1) of the Land Act 1962 was reproduced in almost identical terms as s 6(1) of the Land Act 1910 and continued to allow the Governor in Council to, “demise for a term of years…any Crown land within Queensland”. Section 6(1) was not amended to exclude the application of that provision to a lease of the kind described in s 203.
110 At this stage, it is convenient to summarise my conclusion on the question of whether the Minister was conferred with exclusive power to grant a lease of the kind described in that provision before explaining my reasons for that conclusion. My opinion is that the legislative intention under the Land Act 1962 was that while the Minister should be granted the power to issue special leases of the kind described in s 203, the Governor in Council should retain the power to also grant leases of the same kind. That is because there were certain legal consequences that were different for a demise under s 6(1) compared to a lease issued by the Minister under s 203. In addition, the Governor in Council had the power to grant leases to the Commonwealth of the kind described in s 203 whereas the Minister did not. The intention was that either power should be available depending on the circumstances. In other words, there was no repugnancy between the two powers and they were consonant with each other. Further, no reason is apparent as to why the legislative intention could have been to cut down the width of the power of the Governor in Council when the Governor in Council was otherwise conferred with power to grant almost every other kind of lease of Crown land under the Land Act 1962.
111 My reasoning towards this conclusion commences with the history of s 6(1) of the Land Act 1962, which I have already discussed. To reiterate, from the time Queensland was established as a colony, the power and authority to grant and dispose of Crown land was vested in the Governor in Council subject to legislative control. In Bone v Mothershaw, McPherson JA held that the object and effect of s 6(1) was to confer on the Crown legislative, as opposed to prerogative, authority to grant Crown land, while at the same time limiting the range of interests that could be granted in such land.
112 The power under s 6(1) was to grant an estate or interest in land (relevantly, here, a leasehold interest) subject to the provisions of the Land Act 1962 that otherwise regulated such a transfer. Accordingly, s 6 provided that the Governor in Council, in the name of the Crown, could demise Crown land in Queensland for a term of years or in perpetuity (s 6(1)); that the demise was subject to reservations and conditions prescribed by an Act (s 6(2)); the demise was to be made in “the prescribed form” (s 6(2)); and that the lease “so made” was valid and effectual to vest in the person the interest stated (s 6(2)).
113 The Land Act 1962 contained numerous provisions that expressly authorised the Governor in Council to grant or issue leases of various kinds (ss 160(1), 165(1), 207(3), 208, 209(1), 210(1), 214(1), 223, 269(1), 269(10) and 371). In respect of numerous other kinds of leases, there was no entity specifically identified as having the power to grant or issue the lease (ss 58(2), 58(3)(b), 61(b), 83(1), 83(4), 99(2), 99(3)(b), 102(a), 103, 185 and 272(4)). Where no entity was specified, the power to grant the lease lay with the Governor in Council under s 6(1).
114 There were provisions in ss 54(5)(a) and 93(3) that allowed the Minister to grant a “new lease” in circumstances where a lease had previously been granted by the Governor in Council. Section 203 is the only section identified by the parties as conferring power on the Minister rather than the Governor in Council to grant or issue a lease (other than a “new lease”) of Crown land.
115 In the context of the Governor in Council being conferred with power to grant every other type of lease of Crown land, a legislative intention to remove the power of the Governor in Council to grant a lease of the kind described in s 203 would seem quite anomalous. That is particularly so when there is nothing peculiar about a lease of that kind that would suggest an advantage in granting the Minister exclusive power to grant such a lease. The extrinsic material does not explain why the Minister was conferred with the power under s 203. It can be surmised that the power was devolved to the Minister because a lease of that kind was subject to greater legislative restrictions than many other types of leases were. A special lease of that kind could only be granted for specified purposes, and for not more than 30 years (subject to exceptions by the time of the 1985 Special Lease). It may have been seen as administratively convenient for the Minister to have power to grant such a lease, perhaps, as the applicant submitted, for reasons of speed (although there would not seem to be much time-saving in the Governor in Council approving the issuing of a lease compared to granting a lease). However, the conferral of that power on the Minister did not indicate that it was intended to deprive the Governor in Council of the power under s 6(1) to also grant a lease of that kind.
116 It is significant that the legal consequences of the exercise of the Governor in Council’s power under s 6(1) were not completely co-extensive with the legal consequences of the exercise of the Minister’s power under s 203. Under s 6(2), the lease was required to be made in, “the prescribed form”, and a lease, “being so made” was, “valid and effectual to convey to and vest in the person therein named” the estate or interest stated. The significance of s 6(2) was that leases made by the Governor in Council in the prescribed form conferred a right to possession and exclusive possession from the time when the lease was issued, irrespective of whether the lessee had actually entered into possession and when the lease was registered. In Wik Peoples v Queensland, Brennan CJ explained at 83–84 that s 6(2) of the Land Act 1910 (which was relevantly in the same form as s 6(2) of the Land Act 1962) had modified the common law:
In…the case of the Mitchellton Leases, no lessee ever went into actual possession. At common law, a lessee who had not entered into possession had an interest known as interesse termini which carried a right to enter and to maintain an action for ejectment but not an action for trespass. And, as the lessee acquired no estate in the land prior to taking possession, no reversion expectant on the termination of the leasehold interest arose until possession was taken. The landlord's estate remained unaffected until possession was taken by the tenant.
However, s 6(2) of the 1910 Act provided, inter alia, that “[t]he grant or lease ... shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated''. Whatever be the position in other States, in Queensland s 6(2) vested in the named lessee the estate or interest conferred by the instrument of lease when the instrument was ''so made”, that is, “made in the prescribed form”.…It follows that on the grant of a pastoral lease under the 1910 Act, the pastoral lessee was, in point of law, in possession of the land demised, irrespective of the lessee actually going into possession of the land. It follows that, in point of law, the lessees of the Mitchellton Leases were in the same position as a lessee at common law who entered into possession forthwith on the granting of the lease. In my opinion, the lessees under each pastoral lease had possession and a right to exclusive possession at the latest from the moment when the lease was issued. And, for reasons presently to be stated, the Crown had the reversion expectant on the termination of the lease.
(Footnotes omitted.)
117 The same point was made by Gummow J at 198–199:
…Section 6(2) is not merely a procedural provision. By stating that compliance with this requirement was effectual to vest the interest in question, it marks off, to a significant degree, pastoral leases from leases granted under the common law.
If the Mitchellton Pastoral Leases were treated as attended in their creation by the same requirement as those attending the creation of leases under the common law, neither of those instruments would have vested the term in the lessees. At common law, the term would have vested only upon entry and there was no such entry. Before entry, the lessees would have had merely an interest in the term, or interesse termini. With effect from 1 December 1975, the doctrine of interesse termini was abolished by s 102 of the Property Law Act 1974 (Q) and s 12 of the Residential Tenancies Act 1975 (Q).…The interesse termini gave not an estate but a right of entry. This reflected the origin in covenant of the rights of the lessee against the lessor, so that, if the lessor failed to deliver possession, the lessee could not bring a real action. The remedy was one for breach of covenant. Entry was essential to create the estate in reversion. However, as indicated earlier in these reasons, the 1910 Act operated without the creation in favour of the Crown of what at common law would be regarded as a reversionary estate.
(Footnotes omitted.)
118 In contrast, a lease issued by the Minister under s 203 would be subject to the common law and would not confer a right to possession and to exclusive possession from the time the lease was issued.
119 Further, the effect of s 6(2) was that a lease issued under s 6(1) would be valid without any requirement to be enrolled in a register kept by the Registrar-General or in a superior court of record: see E Campbell, Crown Land Grants: Form and Validity (1966) 40 ALJ 35 at 38–40. That may be contrasted with a lease under s 203 where such enrolment or registration was required for a grant of an interest in Crown land to be effective.
120 Accordingly, a lease issued by the Minister under s 203 would not have precisely the same legal consequences as a lease of the same kind issued by the Governor in Council under s 6(1). That ss 6(2) and 203 produce different consequences is inconsistent with the legislature conferring exclusive power to the Minister to grant a lease of the kind described in s 203, and is consistent with reserving to the Governor in Council a discretion to grant a lease of that kind when that was appropriate.
121 The applicant points to s 343, which allowed trustees of a reserve to lease land under their control with the approval of the Minister, and submits that since the Land Act 1962 was tolerant of that category of leases not getting the benefit of s 6(2), it was not inconsistent that leases under s 203 would similarly not receive the benefit of s 6(2). That may be so, but it fails to address the issue that the differential operation of ss 6(2) and 203 is consistent with those powers operating concurrently, rather than s 203 providing exclusive power to issue leases of the kind described in that section.
122 Another relevant matter is that s 6(6) expressly allowed the Governor in Council to lease Crown land to the Commonwealth, whereas no such power was granted to the Minister under s 203. The specific grant of that power to the Governor in Council and the omission of such a grant to the Minister indicates that the Minister had no such power. Since the Governor in Council had power to grant a lease of the kind described in s 203 to the Commonwealth, it seems unlikely that the legislature would intend to deprive the Governor in Council of that power in relation to other classes of lessee.
123 In my opinion, there was no repugnancy between the respective powers under ss 6(1) and 203 and they were consonant with each other. The conferral of the power to issue special leases under s 203 does not mean that the Governor in Council was deprived of the power to grant leases of that kind under the power in s 6(1). The power to grant such leases was held concurrently by the Governor in Council and the Minister.
124 The applicant has conceded that if the Governor in Council (under s 6(1)) and the Minister (under s 203) had concurrent powers to grant the Special Leases, then they were validly granted. While the Governor in Council proceeded upon a misunderstanding that its power to issue the Special Leases arose under s 203, that error does not affect the validity of the Special Leases. That is because a mistake as to the source of a statutory power does not render an action invalid if another power was in fact available: see Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124] (Heydon J); Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [34]. The applicant’s concession was properly made.
125 I hold that the Special Leases were validly issued.
Whether the Minister issued the Special Leases under s 203
126 My conclusion that the power to grant the Special Leases was held concurrently by the Governor in Council and the Minister, requires that the separate question be answered in the negative. In case I am wrong, I will consider the State’s further argument that the Special Leases were in fact “issued” by the Minister under s 203. My consideration of this argument proceeds on the basis that the word “issue” under that provision meant “demise” or “grant”.
127 The State submits that the Minister’s power under s 203 to “issue” a special lease should be understood as “cause to be issued”. The State submits that by the Minister recommending to the Executive Council that the Governor in Council approve the Special Leases, and by the Governor acting upon the advice of the Executive Council, the Minister caused the Special Leases to be issued. The State submits that there was no requirement for the Minister to sign the Special leases in order to issue them.
128 The applicant submits that the requirement of the term “issue” in s 203 was for the Minister to sign the lease instrument personally, and the requirement was not met by the Minister causing the lease to be executed by the Governor in Council. The applicant submits that s 203 envisaged that the Minister would make a decision to issue a lease and decide its conditions, then submit that unexecuted lease to the Governor in Council for approval, then, having obtained approval, execute the lease by signing it.
129 The applicant relies on s 4 of the Statute of Frauds and Limitations of 1867 which provided:
No leases estates or interests either of freehold or terms of years or any uncertain interest of in to or out of any messuages lands tenements or hereditaments shall be assigned granted or surrendered unless it be by deed or note in writing signed by the party so assigning granting or surrendering the same or their agents thereunto lawfully authorised by writing or by act and operation of law.
130 That provision was ultimately replaced by s 10(1) of the Property Law Act 1974 which provides:
No assurance of land shall be valid to pass an interest at law unless made by deed or in writing signed by the person making such assurance.
131 In addition, s 11(1) of the Property Law Act 1974 provides, relevantly:
(1) Subject to this Act with respect to the creation of interests in land by parol—
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent lawfully authorised in writing, or by will, or by operation of law; and
132 The applicant argues that the power of the Minister to “issue” a special lease under s 203 of the Land Act 1962 created a power to transfer an interest in Crown land to the lessee. The applicant submits that the legislature must have had in contemplation the requirement that a valid transfer of such an interest had to be, “in writing signed by the party so…granting”. Neither the State nor the Commonwealth provided any response to this aspect of the applicant’s argument.
133 I accept the applicant’s argument. Under s 6(2), a demise made by the Governor in Council in the prescribed form was valid and effectual to convey to and vest in the lessee the interest stated. The position in respect of a lease issued by the Minister under s 203 was different. Section 4 of the Statute of Frauds and Limitations of 1867 required a lease for a term of years to be granted, relevantly, by deed or note in writing signed by the party granting the lease. Section 11(1) of the Property Law Act 1974 is in similar terms. Under s 203, it was the Minister who granted the special lease and it follows that the Minister was required to sign the lease instrument to effect a transfer of an interest in Crown land.
134 In Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, Kirby P held at 722–724:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation.…
We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.
135 The legislature should be taken to have had the requirement of s 4 of the Statute of Frauds and Limitations of 1867 in contemplation when it conferred power on the Minister to “issue” a special lease under s 203 of the Land Act 1962. Accordingly, the word “issue” should be understood to encompass a requirement that the Minister sign the instrument of lease.
136 It was not submitted that the Minister could validly delegate, and had delegated, the power to issue the lease instrument to the Governor in Council.
137 It is apparent that the Minister did not sign the lease instruments for either the 1964 Special Lease or the 1985 Special Lease. I conclude that they were not “issued” by the Minister under s 203 of the Land Act 1962. However, this does not ultimately affect the outcome of the case.
138 The separate question asks:
…[W]ere the special leases listed in Attachment A to these orders, or either of them, invalid by reason that the responsible Minister did not sign the relevant lease instrument?
139 I have concluded that the Governor in Council was conferred with power under s 6(1) of the Land Act 1962 to grant the Special Leases and validly exercised that power. Section 203 did not confer power exclusively on the Minister to issue special leases of the kind referred to in that provision.
140 The separate question must be answered, “No”.
141 I was not asked to make any orders consequent upon my answer to the separate question and have not done so. However, I will give the parties the opportunity to make submissions as to any consequent orders.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. |
Associate:
QUD 115 of 2017 | |
TORRES SHIRE COUNCIL | |
Fifth Respondent: | BRUCE IAN DAVEY |
Sixth Respondent: | GREGORY DOUGLAS HOWARD |
Seventh Respondent: | IWTS INVESTMENTS PTY LIMITED ACN 123 360 038 |
Eighth Respondent: | MATT QUADRELL |
