Principality of Range View - Fee simple title __

HIGH COURT OF AUSTRALIA

The Commonwealth of Australia -v- The State of New South Wales and Another [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)

The Commonwealth of Australia Plaintiff; against The State of New South Wales and Another Defendants.
H C of A

9 August 1923

Knox C.J. , Isaacs, Higgins, Gavan Duffy and Starke JJ.

Flannery K.C. (with him Barton ), for the plaintiff.

Leverrier K.C. (with him Bavin ), for the defendants.

Latham, for the State of Victoria (which had obtained leave to intervene).

Flannery K.C., in reply,

Flannery K.C. and Barton , for the plaintiff.

Leverrier K.C. and Bavin , for the defendants.

Latham K.C. (with him Herring ), for the intervener.

The following written judgments were delivered:—

Aug. 9, 1923

Knox C.J. and

Starke J.

The several parcels of land to which the questions raised by this special case relate, fall into three classes, namely, (a) lands which became vested in the Commonwealth by virtue of sec. 85 of the Constitution—being the parcels described in pars. 5 and 6 of the indorsement on the writ; (b) lands acquired by compulsory process under the Lands Acquisition Act which had not at the date of acquisition been alienated by the Crown—being the parcels described in pars. 1 and 2 of the indorsement on the writ; and (c) lands acquired by compulsory process under that Act which had before the date of acquisition been alienated by the Crown—being the parcels described in pars. 3, 4 (a) and 4 (b) of the indorsement on the writ. It will be convenient to refer to the parcels comprised in class (b) as "unalienated Crown lands." It is stated in the special case that all the said parcels of land contain royal metals or other minerals, i.e., minerals other than gold or silver. The lands comprised in class (c) passed from the Crown (1) by Crown grant dated 1st May 1849 containing the following reservations, namely, (i.) all mines of gold, of silver, and of coals; (ii.) power to resume any part of the said land for public purposes; (iii.) power to make and conduct through the said land drains and sewers deemed expedient; (iv.) a quit rent of £216s. 6d. for ever: and (2) by Crown Grant dated 30th June 1823 containing the following reservations, namely, (i.) timber for naval purposes; (ii.) part or parts of the said land for highway or highways.

The substantial question at issue is whether the parcels of land in all or any of the classes above mentioned, including the royal metals and minerals therein, are vested in the Commonwealth absolutely freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales.

As to the parcels of land comprised in class (a)—i.e., lands vesting in the Commonwealth under sec. 85 of the Constitution—we are of opinion that the effect of sec. 85 is to vest in the Commonwealth the whole title of the State of New South Wales to these lands, and whatever minerals or metals they may contain. That section provides that "all property of the State, of any kind, used exclusively in connection with" a transferred Department, "shall become vested in the Commonwealth." "Property" of course includes land. The section requires in the case of land that it shall be (i.) the property of the State and (ii.) at the relevant date used exclusively in connection with such a Department. The first question is whether the lands in class (a) are within the description "property of the State." The expression "property of the State" is popular rather than legal. It has always been recognized that the waste lands of Australia and royal metals wherever found in Australia are vested in the King (Attorney-General v. Brown[1]; Woolley v. Attorney-General of Victoria[2]); the management and control of waste lands and royal metals have, however, by various Imperial Acts been conferred upon the legislative organs of the several States of Australia. In addition, the States have often acquired lands from private owners for public purposes. All these lands (including royal metals) may not inaptly be described as the "property of the State" and consequently potentially within the operation of sec. 85. It is said, however, that a rule of construction prevents the royal metals from passing under general words such as the land or property of the King or of a State (see Woolley v. Attorney-General of Victoria). But here we have not to deal with the construction of a Crown grant, the words of which must be taken most strongly against the grantee and most favourably for the King, but with a Constitution distributing property and powers between different organs of the King's Government. Moreover, the rule must give way to the expressed intention of the instrument to be construed; and here the Constitution is explicit—"all property of the State, of any kind, used exclusively in connection with" a transferred Department is to vest in the Commonwealth. If the property used includes royal metals, those metals must pass with the property. The statements in the books that the royal metals are not regarded as partes soli does not mean that they are not physically part of the soil, but that for the purpose of title a Crown grant of the land will not as a rule pass the royal metals found in that land. But if the context be sufficiently clear, the royal metals will pass under a Crown grant of the land.

The question remains whether the royal metals in these lands were used exclusively in connection with the Department. It is stated in the special case that the land comprised in these parcels respectively was at the time of the transfer to the Commonwealth of the Department of Naval and Military Defence and of the Department of Post, Telegraph and Telephones used exclusively in connection with the said Departments respectively. This statement, read literally, imports that every portion of the soil in each parcel from the surface to the centre of the earth was used in connection with the transferred Departments and for no other purpose. But it was contended that the statement did not admit that the royal metals in the subjacent strata were used in connection with the Departments. It is true that the royal metals were not worked for the purpose of the Department but, on the other hand, the strata in which they are alleged to exist were not segregated from the rest of the land. There is no allegation that any of the subjacent strata was being used for any other purpose, and we think it follows that the land usque ad coelum et ad inferos was used exclusively in connection with the Departments.

The next question to be determined is as to the parcels of unalienated Crown land (class (b)). We feel no doubt that under sec. 51 (XXXI.) of the Constitution the Commonwealth Parliament has power to make laws providing for the acquisition of land belonging to any State with all the minerals or metals that may be contained in such land. The power is given to make laws with respect to "the acquisition of property ... from any State"; and property is the most comprehensive term that can be used. No limitation is placed by the Constitution on the property in respect of which Parliament may legislate. How far the Parliament has exercised this power depends on the true construction of the Lands Acquisition Act 1906. By that Act "land" includes any estate or interest in land (legal or equitable), and any easement, right, power, or privilege over or in connection with land and also Crown land. "Crown land" means "any land the property of a State, whether reserved or dedicated for any public purpose or not, but does not include any estate or interest granted by the State to any person." "Owner" includes, with respect to Crown land, the State to which the land belongs. By sec. 13 power is conferred on the Commonwealth to acquire any land for public purposes by agreement with the owner or by compulsory process. Sec. 15 provides for the publication of a notification of acquisition; and sec. 16 provides that upon such publication the land described shall by force of the Act be vested in the Commonwealth freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein together with all rights and powers incident thereto or conferred by this Act shall be vested in the Commonwealth. Sub-sec. 2 of sec. 16 provides that where the land described is Crown land of a State the notification shall also have the effect of cancelling any dedication or reservation to which the land was subject at the date of publication. Sec. 17 provides that upon publication of the notification the estate and interest of every person entitled to the land and the title of the State to any Crown land specified in the notification shall be taken to have been converted into a claim for compensation. By sec. 27 (1) it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee simple, but by sub-sec. 3 the State is not to be entitled to compensation in respect to the loss of any rights of dominion, taxation or revenue. By sec. 62 (1) the Governor-General is empowered to authorize the grant of a lease or licence to any person to mine for any metals or minerals on any land the property of the Commonwealth.

The Act thus empowers the Commonwealth to acquire by compulsory process any land the property of a State. The sole question is what meaning is to be given to the phrase "land the property of a State"? The Act contains no limitation on the meaning of the phrase. It does not distinguish between the title which the King has in the land as the Lord Paramount (Co. Lit., 65a) and the title which he has in royal metals by virtue of his prerogative. So far as the States of Australia are concerned, constitutional power has been conferred upon the legislative organs of the States to make laws for regulating the sale and disposal of the waste lands of the Crown and all mines and minerals therein. And lands which fall within this power are rightly described, in our opinion, as land the property of a State. If so, "land the property of a State" covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the royal metals. It was said that the royal metals were not partes soli and therefore were not subject to a power to acquire "land"; and the words of Lord Watson in Attorney-General of British Columbia v. Attorney-General of Canada[3] were relied on. So far as the argument rests on the proposition that the royal metals are not partes soli, it has been already considered. And so far as it rests upon the authority of that case, the question there arose on the construction of statutes and grants very different from the statutes we have to construe. According to Lord Watson, the claim in question in that case did not profess to deal with jura regia; it merely embodied the term of a commercial transaction by which the one Government undertook to make a railway and the other to give a subsidy by assigning part of its territorial revenues. The only conveyance contemplated was a transfer to the Dominion of Canada of the Provincial right to manage and settle the lands and to appropriate their revenues[4]. For these reasons we are of opinion that the royal metals contained in unalienated Crown lands passed to the Commonwealth upon the acquisition of such lands by compulsory process under the Lands Acquisition Act.

Lands alienated by the Crown remain to be considered. The contention on the part of the State was that the taking of such lands under the Act did not operate to vest in the Commonwealth the paramount or prerogative rights of the King in the land or affect the reservations in the respective Crown grants. The power given by sec. 13 is to acquire "land," and prima facie that means to acquire the soil from the surface to the centre. The notification in each case purports to take certain land described therein by metes and bounds, and upon publication thereof sec. 16 vests such land in the Commonwealth. There is nothing in the Act which suggests that the Commonwealth may not acquire by one notification a parcel of land part of which belongs to a subject and part to the Crown. We see no reason to doubt that the Parliament might pass laws enabling the Commonwealth to acquire land divided either vertically or horizontally; and the Lands Acquisition Act, by its definition of the word "land," enables the Commonwealth to acquire interests in, or rights, powers or privileges over, land as well as land in its ordinary meaning, namely, "that in respect of which you have a right from the centre of the earth to the heaven above" (see In re Metropolitan District Railway Co. and Cosh[5]). The determination of the question rests, we think, upon the interpretation to be given to the word "land" in secs. 13 and 15. These sections may empower the Governor-General to acquire the estates or interests or rights of persons or of States in or over land, or to take some defined portion of the terrestrial globe. In our opinion they do both. The Governor-General may direct that some estate or interest in or right over land be acquired or that a definite portion of the terrestrial globe be acquired, in which case the rights of every owner, whether the State or a subject, are converted into claims for compensation.

The effect of the Act is that if a notification under sec. 15 contains a description of a piece of land, without more, then that piece of land usque ad coelum et ad inferos and all its constituent parts and all interests in and rights over it, whether in the ownership of the Crown or a subject, vest in the Commonwealth. In the present case each notification covers simply a piece of land described by metes and bounds. This is a description of a defined portion of the terrestrial globe. The effect of the notification, therefore, is that the land described and all its constituent parts, including metals and minerals, and all estates and interests in and rights over that land vest in the Commonwealth by force of the Act.

Questions 2 and 3 of the special case involve the consideration of the duty of the Registrar-General in respect of (a) registration of notification of acquisition, and (b) issue of certificates of title to the Commonwealth, and incidentally of the power of the Commonwealth Parliament to enact sec. 20 of the Lands Acquisition Act. That section runs as follows: "If a copy of the notification in the Gazette, certified under the hand of the Attorney-General, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Commonwealth." The registration of land and of dealings therewith under what is commonly known as the Torrens System is regulated in New South Wales by the Real Property Act 1900. In relation to the operation of that Act the several parcels of land described in the writ considered as at the dates of the respective notifications fall into three classes, namely, (i.) land which had not been alienated in fee by the Crown—being the land described in pars. 1, 2, 5 and 6 of the indorsement to the writ; (ii.) land which had been alienated in fee by the Crown and had been brought under the provisions of the Real Property Act—being the land described in par. 3 of the indorsement to the writ; (iii.) land which had been alienated by the Crown before 1863, but had not been brought under the provisions of the Real Property Act—being the land described in pars. 4 (a) and 4 (b) of the indorsement to the writ.

As to class (i.) the Real Property Act 1900 provides, by sec. 13, as follows:—"(1) All waste lands and all lands set apart for public purposes remaining unalienated from the Crown at the passing of this Act shall, when alienated in fee, be subject to the provisions of this Act. (2) The grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed." It will be observed that it is only when land in this class is "alienated in fee" by the Crown that it becomes subject to the provisions of the Act, and the terms of sub-sec. 2 show that the Crown grant, i.e., a grant in fee from the Crown, is to be the root of the title under the Act. Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is not authorized by the Real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. In the present case there has in respect of the class of land under consideration been (a) no alienation by Crown grant, (b) no creation by the Crown of an estate in fee simple. The method of registration of Crown grants which fall within the scope of sec. 13 is prescribed by sec. 32 of the Act, which provides (i.) that the Registrar-General shall keep a book to be called the register-book and shall bind up therein the duplicates of all grants and certificates of title, and (ii.) that each grant and certificate of title shall constitute a separate folium of such book and the Registrar-General shall record thereon particulars of all instruments, dealings and other matters required by the Act to be registered or entered on the register-book affecting the land included in each such grant or certificate of title distinct and apart. Until a Crown grant or certificate of title of land described therein has been delivered to the Registrar-General to be bound up in the register-book and marked by him in accordance with sec. 35, there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land (see Richards v. Cadman[6]). By sec. 39 read with sec. 35 it is provided that the Registrar-General shall not register any instrument purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of the Act except by entering the same in the register-book upon the folium constituted by the existing grant or certificate of title of such land. It is clear therefore that as to the parcels of land comprised in class (i.) the Registrar-General has under the State Act no power or authority to make any entry in the register-book or to issue any certificate of title.

With regard to the parcel of land comprised in class (ii.) the conclusion is the same. By sec. 39 of the Real Property Act the Registrar-General is expressly forbidden to register any instrument purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of the Act, unless such instrument be in accordance with the provisions thereof. By sec. 46 transfer of land under the Act is to be in the form of the 5th, 6th or 7th Schedule, and to contain certain particulars specified in the section. It is clear—it was indeed not disputed—that the notification of acquisition of this land is not an instrument in accordance with the provisions of this Act, and until registration of some dealing no fresh certificate of title can be issued.

The parcels of land comprised in class (iii.) were alienated in fee by the Crown before 1863 and had never been brought under the provisions of the Act. There is no entry in the register-book in respect of this land; and no such entry can lawfully be made by the Registrar-General under the State Act unless the land be brought under the provisions of the Act in the manner prescribed by sec. 14 and following sections. It follows that as to this land also the Registrar-General is not authorized by the State Act to make any entry in the register or to issue a certificate of title. The question remains whether the Registrar-General is authorized or bound by the provisions of sec. 20 of the Lands Acquisition Act to register notifications or to issue certificates of title in respect of these parcels of land or any of them.

We have already pointed out that under the Real Property Act the right to registration of any title or dealing is dependent on the performance of conditions prescribed by the Act, and that the Commonwealth has not complied with the statutory conditions in respect of the lands of which it claims to be registered as proprietor. But it is argued that the Commonwealth is entitled by force of sec. 20 of the Lands Acquisition Act to insist upon registration of its title without complying with the conditions imposed by the statute. Assuming sec. 20 to be within the power of the Commonwealth Parliament, we think this would be so as to all the parcels except two. That section provides that, if a copy of a notification in the Gazette be lodged with the Registrar-General, he shall register in the register and shall deal with and give effect to it as if it were a grant or conveyance or memorandum or instrument of transfer of the land duly executed under the laws in force in the State. In the present case a copy of the notification of acquisition of each parcel of land described in the writ, except those which passed under sec. 85 of the Constitution, has been lodged with the Registrar-General; and it follows that the section purports to impose upon him the obligation to make such entries in the register as he would have made if the land had been granted by the Crown or conveyed or transferred to the Commonwealth. In respect of all the parcels except those described in pars. 4 (a) and 4 (b) of the writ, the section plainly requires the Registrar-General to enter the name of the Commonwealth in the register as grantee or transferee of the respective parcels; and it therefore becomes necessary to consider whether this provision is within the power of the Commonwealth Parliament.

The power conferred by sec. 51 (XXXI.) and (XXXIX.) of the Constitution is to make laws with respect to the acquisition by the Commonwealth of property, including land, and with respect to matters incidental thereto; and the question is whether a provision entitling the Commonwealth to insist on the registration under the Real Property Act of its title to land acquired under the Lands Acquisition Act, without complying with the conditions imposed by State law on such registration, is incidental to the complete exercise of the power of acquisition. Effective acquisition of (inter alia) land by the Commonwealth is the object to be attained, and the power is completely exercised by enabling the Commonwealth to vest absolutely in itself the land which it desires to acquire. The object is attained by the method provided by sec. 16 of the Act, namely, that upon the publication of a notification of acquisition the land described therein shall "by force of this Act be vested in the Commonwealth." This section, the validity of which is not, and cannot be, disputed, confers on the Commonwealth a statutory title to the land required which must, by force of sec. 109 of the Constitution and of sec. V. of the covering Act, be paramount to any title dependent on a law of the State. The Commonwealth acquires the land and a statutory title to it under a law of the Commonwealth independently of any State law. But it does not follow that the Commonwealth Parliament is entitled to insist upon the State registration of its title to the land acquired unless upon compliance by the Commonwealth with the conditions imposed by State law. The provisions of the Real Property Act 1900 which stand in the way of the Commonwealth in this case in no way prevent or interfere with the acquisition by the Commonwealth of any land in New South Wales: they do no more than prescribe the conditions on which the State will permit the registration of title to land; and in our opinion the Commonwealth, if it desires to obtain registration of its title under the Real Property Act, must comply with the conditions imposed by that Act. As our brothers Isaacs and Rich said, in Commonwealth v. New South Wales[7], "if it" (i.e., the Commonwealth) "seeks to obtain the registration provided by the statute, it must take it on the terms of the Act which it invokes." No substantial reason was suggested in argument, and we can find none, for holding that the exemption of the Commonwealth from compliance with these conditions is a necessary step in the acquisition of land. The title of the Commonwealth to the land in question exists independently of registration under the Act, and is not and cannot be affected by the refusal of the Registrar-General to register.

Our brother Gavan Duffy desires us to say that he agrees with the conclusion at which we have arrived on questions 2 and 3. In the circumstances of the case, and more especially as it is not stated in the special case that any royal metals are contained in the lands in question, he does not think it necessary or desirable to answer any other question.

Isaacs J .

This is a special case stated by the parties for the opinion of the Court. The material facts are that the Commonwealth has acquired various parcels of lands in New South Wales. Some of those lands were unalienated Crown lands, acquired solely by virtue of sec. 85 of the Constitution operating directly as a self-executing provision. The other portions of land were acquired by compulsory process under the provisions of sec. 15 of the Lands Acquisition Act 1906. Of these last mentioned lands two portions were unalienated Crown lands, and two had been alienated in fee simple in 1823 and 1849 respectively before any Crown Lands Act was passed (1861); and in the grants reservations had been made, in the one case, of gold, silver, coal and powers of resumption, and, in the other, of timber and power to make highways. As to both groups of land three questions are asked. The first question is whether the lands have vested in the Commonwealth for an absolute and unconditional estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales. The second question has reference to the lands acquired by the second method of acquisition, and, in effect, inquires whether the notification of acquisition by the Governor-General has the same effect in law as if the State had granted the land to the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations. The third question has reference to both classes of land, and asks whether the Registrar-General of New South Wales is bound to issue to the Commonwealth a clean certificate of title, without noting any reservations or exceptions to the State of New South Wales, as if there had been a grant under the law of New South Wales.

As to the first class of lands, sec. 85 of the Constitution says: "(1) All property of the State, of any kind, used exclusively in connection with the Department, shall become vested in the Commonwealth." These lands were, as the case states, used exclusively in connection with two Departments respectively, namely, Defence and the Post Office. They were acquired in 1901, upon the transfer of the Defence and Post Office Departments from the State to the Commonwealth. It follows from the terms of the Constitution quoted, which as to those Departments are unqualified as to interest, that "the lands" passed in fee simple. The word "property" in sec. 85 is large enough to include, and does as there used, include, not only real but also personal property "of any kind." The reservations, &c., which the State claims still to possess are unquestionably "property." The only ground on which the argument for the State is maintained is that some special words indicating a transfer of prerogative rights of the Crown to royal metals are always necessary to pass the title to those metals to the Commonwealth. This is a proposition which applies to both branches of this case; and, therefore, we defer its consideration for the moment.

The second class of lands consists of various allotments acquired, not by operation of sec. 85 of the Constitution, but under the power contained in sec. 51 (XXXI.) as exercised by the Lands Acquisition Act 1906. They were acquired in various years, namely, 1910 and 1912, the last relevant date being 4th April 1912. By Act No. 39 of 1912, passed on 24th December 1912, it is provided as follows:—Sec. 2. "Any notification by the Governor-General made before the commencement of this Act, and purporting to be in pursuance of the Lands Acquisition Act 1906, and published in the Gazette, and declaring that any land therein mentioned has been acquired by the Commonwealth for Commonwealth purposes, shall be deemed to be sufficient for the purposes of that Act, and the lands specified therein shall be deemed to have been vested in the Commonwealth in accordance with section sixteen of that Act as from the date of the publication of the notification in the Gazette." We thus reach this standing ground: that the lands comprised in the second branch of this case—whatever they include—must be deemed to have been vested in the Commonwealth in 1912 in accordance with sec. 16 of the Lands Acquisition Act 1906. The language of that is plain and decisive, and its legal effect unmistakable. The occasion which led to its enactment is immaterial (McCawley v. The King[8]). Sec. 16 of the Act of 1906 is as follows:—"(1) Upon the publication of the notification in the Gazette, the land described therein shall, by force of this Act, (a) be vested in the Commonwealth; and (b) be freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth. (2) Where the land described in the notification is Crown land of a State, or is by virtue of any law of a State vested in any person on behalf of the Crown or for any public purpose, the notification shall also have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification."

It is contended for the State, as in the case of the first branch, that the word "property" in sec. 51 (XXXI.) is not sufficient in itself to enable Parliament to authorize the transfer of the prerogative rights of the State in the royal metals; and that, even supposing it were sufficiently large for that purpose, Parliament has limited itself to the word "land," which either by itself or as defined in the Act is not sufficient in law to include gold and silver. The Commonwealth maintains that both classes of lands acquired under the statutory provisions respectively applying to them, include whatever royal metals may exist in them. The contention of the Commonwealth is correct. The determination as to both branches of this case rests primarily on considerations that apply to one as much as to the other, and, once those considerations are stated, the result follows in each case with equal certainty. The word "property" is undoubtedly capable of including the prerogative right referred to; and the first question is whether there exists some rule of law, as suggested by the defendants, that notwithstanding the generality of the term, the prerogative is not affected without express words. The word "land" is, as has been said, nomen generalissimum, and it has been defined by sec. 5 of the Lands Acquisition Act as including "any estate or interest" in land—legal or equitable—and any easement, right, power or privilege over, in, or in connection with land, and also as including "Crown land." One point of distinction between the two branches of this case should be here adverted to. The property that passed to the Commonwealth under sec. 85 of the Constitution was property that was "used" in connection with the Department while in the hands of the State. Under the Act prior use is immaterial. It was argued on behalf of the State that only the surface was "used," or at all events only so much of the land below the surface as at the time of transfer was necessary in the circumstances then existing. The practical futility of such a limitation, both with regard to the future use to which the land might be put and with regard to ascertaining the extent of right that passed, drove the defendants to the further contention that, at all events, the Court could indicate the extreme limits of depth which the Commonwealth could possibly require at any time under any conceivable circumstances, and so exclude the precious metals. This is plainly unsustainable. In the first place, the Court is not the constitutional organ to determine such matters; next, it has no materials for performing such a function; and, lastly, it is impossible for any one either to say what depth is or will be sufficient for Commonwealth purposes, or, if that were possible, to say that the precious metals would thereby be excluded, for they are found at all depths, in all situations, and at times permeate the soil. That single point of difference between the Constitution and the Act being disposed of, there is now to be considered the principle upon which the first and second questions should be answered.

Reliance was placed by the defendants on three cases decided by the Privy Council, namely, Woolley v. Attorney-General of Victoria[9], Attorney-General of British Columbia v. Attorney-General of Canada[10] and Esquimalt and Nanaimo Railway Co. v. Bainbridge[11]. In all of those cases it was held that the general words used did not pass from the Crown owning the land to the transferee, to use a general term, the rights possessed by the transferor in the gold and silver contained in the land. No decision given upon the words of another instrument can in itself constitute an authority which will govern this case. Everything depends upon the principle upon which the cases referred to were decided, because whatever that principle was we are bound by it. Perhaps the most convenient course will be to refer at once to the case of Attorney-General of British Columbia v. Attorney-General of Canada. The passage most strongly relied on by the defendant is found at pp. 302-303, where Lord Watson says:—"According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, are not regarded as partes soli, or as incidents of the land in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title from that to which its right to the precious metals must be ascribed. In the Mines Case4(1568) 1 Plowd., 310, at pp. 336, 336a. all the Justices and Barons agreed that, in the case of the baser metals, no prerogative is given to the Crown; whereas all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore. In British Columbia the right to public lands, and the right to precious metals in all Provincial lands, whether public or private, still rest upon titles as distinct as if the Crown had never parted with its beneficial interests; and the Crown assigned these beneficial interests to the Government of the Province, in order that they might be appropriated to the same State purposes to which they would have been applicable if they had remained in the possession of the Crown. Although the Provincial Government has now the disposal of all revenues derived from prerogative rights connected with land or minerals in British Columbia, these revenues differ in legal quality from the ordinary territorial revenue of the Crown. It therefore appears to their Lordships that a conveyance by the Province of public lands, which is, in substance, an assignment of its right to appropriate the territorial revenues arising from such lands, does not imply any transfer of its interest in revenues arising from the prerogative rights of the Crown." That case depended upon the meaning to be given to the words "public lands," in sec. 2 of a British Columbia Act. The defendants have read the words quoted as laying down (1) that gold and silver are no part of the soil or incidents to the land in which they are found; (2) that for these reasons and because the Crown's title to them rests on prerogative as distinct from ordinary territorial rights, special words are always necessary to transfer them. The passage and its relation to the rest of the judgment and to the general law have been altogether misunderstood.

As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth, which is called "land." In Thomson v. St. Catherine's College, Cambridge[13], Lord Finlay said: "The word soil is apt to denote the surface and everything above and below it." Naturally, nothing else is land; for instance, a chattel is not land, but it may, in fact, be so dealt with as to become in law part of the land. "Fixtures" become, as Williams J. expresses it in Lancaster v. Eve[14], "incorporated with the soil." A wall is taken to be, as Fry J. says in Moody v. Steggles[15], "part of the soil." In Bain v. Brand[16] Lord Cairns L.C. said: "Whatever is fixed to the freehold of land becomes part of the freehold or inheritance." He refers[17] to the judgment of Lord Gifford, who spoke of fixtures as "partes soli." Lord Chelmsford[18], speaking of the word "fixture," says: "Whatever is so annexed becomes part of the realty." Those cases must be read with Leigh v. Taylor[19], which lays down the principle that in determining whether chattels have by annexation become in law part of the reality—in other words, have come to be "regarded as partes soli," to use Lord Watson's expression in Attorney-General of British Columbia v. Attorney-General of Canada[20]—no rule can be laid down which will in itself solve the question, but the circumstances of the particular case must be looked at. The issue is thus tersely stated by Lord Wrenbury (then Buckley J.) in In re Hulse; Beattie v. Hulse[21]: "The question is, not what is the nature of the attachment of the chattel to the soil, but what, having regard to all the facts of the case, must have been the intention." We thus arrive at the position that a mere chattel may be so dealt with as to become in law pars soli, provided such is the intention. On the other hand, trees growing on land are, according to the received legal definition of "land," regarded as part of it. But if reserved in the grant of the land, "the trees in property are divided from the land, though in fact they remain annexed to it" (Herlakenden's Case[22]), quoted by Lord Atkinson for the Privy Council in Eastern Construction Co. v. National Trust Co.[23]. It is precisely this principle that is embodied in the case of Attorney-General of British Columbia v. Attorney-General of Canada, although the difference of subject matter and the relevant rules of law require converse application, and a different result. The words that have been quoted from that case, it will be observed, only say that gold and silver mines are not regarded as partes soli or as incidents of the land in which they are found "until" they have been aptly severed from the title of the Crown, and, adds Lord Watson, "vested in a subject." The words used plainly contemplate that, when they are so severed and vested in a subject, they do form partes soli. The learned Lord proceeds to refer to the decision in the Mines Case[24] and to the Sovereign's title by prerogative. But the prerogative right as laid down in the Mines Case is simply a rule of law that substances which naturally are part of the land shall not be so regarded unless and until the Crown indicates the contrary. It is the converse to the law of fixtures, and the Privy Council in that case unmistakably manifest their view not merely that the Crown may indicate its intention by the use of express words added to the word "lands" or the words "public lands," but that such intention may be deduced from the nature of the transaction. Lord Watson points out[25] that whether the precious metals passed to the Dominion Government depended upon the meaning to be attributed to the words "public lands" in the 11th Article of Union. He pointed out that the conveyance contemplated was a transfer to the Dominion simply of the Provincial right to manage and settle the lands and to appropriate their revenues, that is to say, that the Dominion was merely to act towards subjects in relation to those lands as the Province would have done. Then says Lord Watson, in a passage which entirely distinguishes that case from the present[26]:—"It was neither intended that the lands should be taken out of the Province, nor that the Dominion Government should occupy the position of a freeholder within the Province. The object of the Dominion Government was to recoup the cost of constructing the railway by selling the land to settlers. Whenever land is so disposed of, the interest of the Dominion comes to an end. The land then ceases to be public land, and reverts to the same position as if it had been settled by the Provincial Government in the ordinary course of its administration." His Lordship, in a very important passage, says[27]: "If the 11th Article of Union had been an independent treaty between the two Governments, which obviously contemplated the cession by the Province of all its interests in the land forming the railway belt, royal as well as territorial, to the Dominion Government, the conclusion of the Court below would have been inevitable." That makes it perfectly plain that the Privy Council laid down no such rule as that contended for by the defendants. The Privy Council go on to show the nature of the enactment of the 11th Article and they say[28]: "The article in question does not profess to deal with jura regia; it merely embodies the terms of a commercial transaction." Nothing could be plainer than this, that Lord Watson for the Judicial Committee took special pains to make it clear that the nature of the instrument and the purposes for which it was made were the dominating considerations in construing it.

The Esquimalt Case[29] may be very briefly disposed of. It dealt not with sec. 2 of the British Columbia Act as the former case did, but with sec. 3, and the question was whether the words "mines, minerals, and substances" in that section included the precious metals. The same learned Lord delivered the opinion of the Judicial Committee, and held in the negative, on the grounds[30] that the words in question were not words "necessarily including the precious metals," and therefore must be construed according to the usual rule in such a case as alia similia with the minerals or substances previously enumerated.

In many cases of very high authority, and in circumstances sufficiently analogous to the present case, the test that, as above expounded, was applied in Attorney-General of British Columbia v. Attorney-General of Canada[31] has been adopted; for instance, Lord Provost &c. of Glasgow v. Farie[32], where Lord Watson states the "principle" in the following passage:—"The only principle which I can extract from these authorities is this; that in construing a reservation of mines or minerals, whether it occur in a private deed or in an Inclosure Act, regard must be had, not only to the words employed to describe the things reserved, but to the relative position of the parties interested, and to the substance of the transaction or arrangement which such deed or act embodies. Mines and minerals are not definite terms: they are susceptible of limitation or expansion, according to the intention with which they are used." One of the expressions to be there interpreted by the aid of that "principle" was "the land"[33]. See also per Lord Herschell[34] with reference to "the object of the Legislature" in considering the construction of the Act. See also, as another instance of the test of "intention," the cases of Elwes v. Brigg Gas Co.[35] and Reynolds v. Ashby & Son Ltd.[36]. The most recent example of the application of the principle to a case analogous to this is Thomson v. St. Catherine's College, Cambridge[37] — see pp. 481, 486, 500, and particularly p. 503, where Lord Sumner refers to "the paramount intent of the whole transaction."

We have now to apply that principle to the present case, that is to say, to determine what is the true meaning of the word "property" in the Constitution and of the word "land" in the Act. The ample nature of the Commonwealth Constitution as a grant of the King's sovereign authority to be exercised in Australia has been fully expounded in the recent case of Amalgamated Society of Engineers v. Adelaide Steamship Co.[38]. It is sufficient here to recall the principle that within the ambit of its jurisdiction the Commonwealth Parliament is as unlimited as the Imperial Parliament, and, to quote the words of Lord Watson, "the prerogative of the" Sovereign, "when it has not been expressly limited by local law or statute, is as extensive in" His "Majesty's colonial possessions as in Great Britain" (Liquidators of Maritime Bank of Canada v. Receiver-General of New Brunswick[39]). No implied limitation can be placed on the fullest meaning that can be given to the word "property" in secs. 51 (XXXI.) and 85 of the Constitution. The power of the Commonwealth Parliament to carry out "public purposes" cannot be effectively exercised unless the amplest connotation be attached to the word "property." If that be so, then, by force of the very words of sec. 85, the whole physical mass of the soil from the surface contained within the metes and bounds of the land actually used to the centre of the earth, that mass, including all minerals, royal or otherwise, passed directly to the Commonwealth on the transfer of the respective Departments.

As to the acquisitions under the Act, assuming the power of the Parliament to take the royal metals, the question is whether the word "land" as used in the Act is large enough to cover them. The first point to notice with regard to the statutory definition of "land" is that that definition is not restrictive; the word used is "includes" not "means" (see Dilworth v. Commissioner of Stamps[40]). From what has been already said, having regard to the natural fact that "land" includes in its mass everything from the surface downwards, that it requires some rule of law either to include something not naturally part of it or to exclude something that is naturally part of it, and having regard to the principle of construction stated, it follows that, if no definition whatever had been given, the simple word "land" used in the particular statute under consideration would have sufficed to pass the precious metals unless the context of the Act showed a contrary intention. So far from that being the case, the Act discloses what has been variously described in the cases already cited as "a purpose," "an intention" and "an object" of such a nature as to require, just as the Constitution itself requires, the fullest possible meaning to be given to the word "land." In the first place, the title of the Act refers to "public purposes." The definition of Crown land in sec. 5 expressly includes "land the property of a State, whether reserved or dedicated for any public purpose or not"; and it adds "but does not include any estate or interest granted by the State to any person." We have, therefore, in that definition, the most express declaration of intention to disregard, wherever that definition applies, all State reservations or dedications of every kind including those for public purposes, and later, in the course of the definition of "land," excepting from "Crown land" only such parks, &c., as are there excepted. It cannot, in this connection, be overlooked that State Crown Lands Acts, as, for instance, sec. 235 of the New South Wales Act of 1913, combined with the definition of minerals in sec. 5, include among reservations those of royal metals. And sec. 6 forbids the disposition of Crown lands except under the Act. Consequently it is impossible to read the definition referred to as not applying to such reservations under the Crown Lands Acts. If that be so, a most important legal consequence follows. In In re De Keyser's Royal Hotel Ltd.; De Keyser's Royal Hotel Ltd. v. The King[41], the late Lord Swinfen Eady, then Master of the Rolls, held, and with the consent of the Solicitor-General of England, that "where a matter within the prerogative is provided for by statute, the prerogative is merged in the statute." His Lordship's reasons are fully set out, and we refer to them. The other members of the Court were in accord.

In Woolley v. Attorney-General of Victoria[42] the grants were made before the passing of the Constitution Act conferring responsible Government. In that case it must be observed, although the point is generally overlooked, that the Privy Council held that in the then existing state of the law, the Governor of the Colony of Victoria, acting under the statute 5 & 6 Vict. c. 36, had no power to grant away the prerogative rights of the Crown to the precious metals. In Chitty on Prerogatives, p. 35, it is stated: "Nor can there be any doubt that the King may enable the Governor to grant Crown lands, franchises, and possessions in the Colonies." But, in accordance with the principle already referred to in De Keyser's Case[43], the Privy Council held that as Parliament had regulated the matter the King's power depended upon the terms of the statute. The words of their Lordships at the foot of p. 167 show that the construction they gave to the statute after consideration of its "object" was that it did not include authority to grant the precious metals. In passing, we may call further attention to that case as an additional instance of a meaning being given to "lands" in accordance with the purpose of the instrument in which that expression is found. The judgment concludes with the observation that "the state of things that existed when these grants were made, has been altered by the later Imperial statute and the subsequent legislation in the Colony." The observations we have made lead us to the conclusion that the definition of "Crown land" in the Lands Acquisition Act 1906 does include the royal metals in all lands not alienated before 1855, or at least 1861. We prefer to say 1855, because of the words "royalties mines and minerals" in sec. 2 of the Act 18 & 19 Vict. c. 54, as these words would at all events include reservations in prior grants. It would be strange indeed if the Commonwealth Act could have this clear application to alienations since 1855, and yet not be intended to cover in like manner the case of Crown lands wholly unalienated or lands previously alienated.

It must not be overlooked that the only relevant intention in the present case is that of the Commonwealth Parliament. Unlike ordinary cases where the intention sought for is that of the giver of the land, it is here a question of the intention of the taker of the land. The intention so far manifested by the Act is maintained and strengthened by other portions; for instance, in the definition already referred to there are words of exclusion, namely, "but" the expression "Crown land" "does not include any estate or interest granted by the State to any person." "Land" is defined as already quoted in part, but that definition is made "inclusive" to enable the authority to take under the name of "land" not only "land" in the strictest sense, but also what would not strictly come within that term, namely, "easement, right, power or privilege over, in, or in connection with land." For instance, the "liberty to dig and carry away the ores thereof" (i.e., of all mines of gold and silver) "and with other such incidents thereto as are necessary to be used for the getting of the ore," is a "power over, in, or in connection with land" of the subject in which the ore is found. In Rowbotham v. Wilson[44] Lord Wensleydale says: "By grant of mines is granted the power to dig them." That in itself would be sufficient to pass to the Commonwealth, when taking the land specified, the "power" of digging for any mineral whatever in that land. Moreover, it would be immaterial whether the common law prerogative reservation, or the present statutory reservation, of that power does or does not carry with it the right of affecting the surface.

To prevent misapprehension, though saying nothing definite on the subject, it does not follow that the Crown, where such a reservation exists, would not have the right of disturbing the surface. The known conditions in which gold in Australia exists in the soil, varying in depth and location, are very material factors in determining that question (see Welldon v. Butterley Co.[45]). But that the "power" to get the gold and silver in whatever way is permissible passes under the word "powers" is, we think, incontestable. The Act further defines "public purpose," and uses the word "means." It extends to "any purpose in respect of which the Parliament has power to make laws." That includes "defence," and even assuming the State remaining owner of the royal metals and having the obligation in getting them to leave support to the surface—that is, natural support without buildings—how can it be imagined that the Commonwealth Parliament intended to leave excavations so close to the surface under (say) a fort?

Several sections tend very strongly to show the broader intention. For instance, sec. 6 provides for the case of the "sale or lease of any Crown land to the Commonwealth" by agreement with a State. As the Commonwealth's power to take depends on this Act, is sec. 6 to be construed as excluding, even by agreement, the sale of the whole physical mass, or must the sale be subject to excision of the royal metals? And, further, if a subject is a holder of a mining lease, is the land excluded from the Act except subject to the mining rights of the leaseholder? Sec. 16 shows that this cannot be so. But if not, how are the precious metals excluded at all? Sub-sec. 2 of that section connects up with the definition of "Crown land," and by its express terms includes land vested in any person (1) on behalf of the Crown or (2) "for any public purpose," and provides that the notification shall cancel any dedication or reservation. It would therefore be clear that, as to land vested in (say) the Treasurer "on behalf of the Crown" for any purpose whatever, all reservations—statutory or common law—cease upon the notification. Having regard to the governmental nature of the enactment, why should the particular reservation be excluded? Sec. 17 converts "the title of the State" to any Crown land to a claim for compensation. "Title" is as applicable to prerogative title as to ordinary territorial title, and, read with the other provisions, this extreme generality of expression supports the wider view. Sec. 27, providing for compensation to the State, enacts by sub-sec. 2 that "the compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth. " The words "estate in fee simple" in this sub-section must not be misunderstood. It merely denotes the quantity of interest remaining in the State after carving out whatever interests the State has parted with. The word "fee" in this connection has no reference to "fee" denoting feudal tenure (see Halsbury's Laws of England, vol. xxiv., p. 164, note (c)). In the case of Vigers v. Dean of St. Paul's[46] Henry VIII. and Charles II., as well as other Sovereigns, were alleged to be seised of lands "as of fee." In Challis's Real Property, 3rd ed., p. 218, it is stated with perfect accuracy:—"In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; not, as in the language of the feudists, a subject of tenure as distinguished from an allodium. Allodium being wholly unknown to English law, the latter distinction would in fact have no meaning. A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and, for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers an absolute right, both of alienation inter vivos and of devise by will."

[ "inter vivos" is Latin, meaning: from one living person to another living person. ]

Sec. 27 of the Commonwealth Act also enacts by sub-sec. 3 that "the State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue." Nothing could, we think, manifest more openly the intention of the Parliament that the Commonwealth acquisition of "land" should, if necessary, override any of the State's prerogative and other Government rights of property. The prerogative right to the royal metals is an incidental part of the "revenues" of the Crown (see per Lord Watson in the passage quoted supra). The Constitution, sec. 52, by sub-sec. I., confers on the Commonwealth Parliament exclusive legislative power over "places acquired by the Commonwealth for public purposes." This undoubtedly includes "places" acquired for public purposes. In America the powers of Congress may not be quite so extensive (see Camfield v. United States[47]), but the Australian Constitution expressly makes the legislative power of the Commonwealth Parliament exclusive. That does not set up a state of anarchy, for sec. 108 of the Constitution applies to prevent that. Sec. 62 of the Lands Acquisition Act is in terms sufficiently broad to include the gold and silver. The phrase "the laws of the State in which the land is situate relating to mining" would be bereft of its ordinary Australian signification if "gold mining" were excluded. Reference to the various mining Acts of the States will show that the mining laws contemplate gold mining par excellence. Applying to sec. 62 the method of investigation adopted by the Privy Council in the Esquimalt Case[48], we say as to sec. 62, (1) the words "metals or minerals" and "mining" do not in themselves necessarily include gold and silver; (2) they are not associated with any context which could cause them to be regarded as alia similia; (3) on the contrary, the word "any" in sub-sec. 1 preceding "metals or minerals" and the ordinary meaning in Australia of "laws relating to mining" in sub-sec. 2 and the general object of the Act lead to the construction that the words in question do include gold and silver. The first question therefore, ought to be answered in the affirmative.

After the former argument my brother Rich and I prepared in collaboration, as a joint judgment, the judgment I have just read upon the contentions then addressed to the Court. As he was out of Australia during the reargument I am not able to deliver it on his behalf as well as my own. Consequently I deliver what is our joint opinion simply as my own judgment, omitting only some observations as to questions 2 and 3, which have become unnecessary in consequence of some of the later contentions. For what follows the responsibility is, of course, my own.

On the reargument the parties made an amendment by adding a question alternative to question 1, but as question 1 is more comprehensive an answer dealing with that question includes an answer to the alternative question. The reargument was elaborate and raised discussions on various points, some of which were new and some merely additional aspects of the contentions originally made. The new contentions touched the following subsidiary questions:— (1) Does sec. 85 (I.) of the Constitution transfer to the Commonwealth the physical substance of the land "used" in the given case and for an estate of fee simple, or does it merely transfer some abstract right of ownership commensurate with the "use" existing at the time of transfer? (2) If the physical substance of the land is transferred by sec. 85, is the title held from and under the State or independently of the State? (3) Does sec. 85 of the Constitution transfer to the Commonwealth any royal metals or mines in the land? (4) Where "land" is acquired under the Lands Acquisition Act 1906, what is the position with respect to the matters mentioned in questions 1, 2 and 3? (5) What in either case is the result with respect to other "reservations" &c.?

(1)

As to the first subsidiary question:—It is involved in the joint opinion of my learned brother Rich and myself that it is the physical substance which is transferred. The Constitution, having determined on the transfer from State to Commonwealth of certain Government Departments, recognized that the physical apparatus, so to speak, in the form of property entirely belonging to the State and used in connection with the transferred Departments, should pass, together with the governmental functions, to the Commonwealth. Land, buildings, material of all kinds actually and exclusively used for the particular departmental purposes were to pass by force of the Constitution itself, sec. 85 (I.). It was no shadowy conception that passed but the solid things themselves. It has been indicated in the joint opinion how absurdly any other interpretation would operate.

Learned counsel for the State of Victoria insisted on the measure of the "use" being taken as the measure of the ownership transferred. As a test I asked "How could such use be measured? Is it by the size and weight, for instance, of the particular structure upon the land at the moment of transfer?" Obviously the difficulty would be insurmountable. Unless further rights were transferred as a heavier building was superimposed, the Commonwealth would be fettered in attempting to provide for growing necessities: and, if they were, when? When should, in the latter case, the compensation be fixed? Nothing but confusion could ensue from such an arrangement. It was attempted to assimilate the position of the Commonwealth to a Health Board or municipality in which a street "vests" for its statutory purposes, but it is impossible to accept such a standard. The necessities of national defence, for instance, requiring unlimited control above and below the surface, place the comparison out of serious consideration. The question must be solved on the principles laid down in the above joint opinion, and a very recent authority gives further support to the views there expressed (Attorney-General for Quebec v. Attorney-General for Canada[49]). Nothing short of complete control of the physical substance would give the necessary power to the Commonwealth, and so, having regard to the nature of the instrument—a national Constitution, the purpose—the King's Government, and the word "property"—that being even a more general term than "land"—it is the proper construction that the full contents of the parcel of land pass; the "land," being measured superficially by metes and bounds and extending actually downward indefinitely and notionally upward indefinitely, is that which is "passing to the Commonwealth" (sec. 85 (III.)) when the conditioning fact occurs.

With respect to the expression "fee simple," the view enunciated in the joint opinion that "fee simple" indicates the quantum of estate, and not feudal tenure, is confirmed by the observation of Viscount Haldane for the Privy Council in the White Cap Case (Amodu Tijani v. Secretary, Southern Nigeria[50]), where the learned Lord refers to "an estate in fee" as "the most comprehensive estate in land which the law recognizes." On the same page Lord Haldane also speaks of a case where "the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached." The same learned Lord in Matamajaw Salmon Club v. Duchaine[51] says that in England "there has always been permitted great latitude in splitting up the title to the fee simple." The same learned Lord, again for the Privy Council, had already in Smith v. Vermillion Hills Municipality[52] recognized the principle when he spoke of certain land "the fee of which is in the Crown."

It is obviously right, therefore, to say that under sec. 85 (I.) the Commonwealth holds the land for an estate of fee simple in possession, that having no reference to any tenure under the State.

(2)

The title transferred by sec. 85 is taken from the State, as I have already said, adversely to State law and by a law superior, and by that superior law is vested in the Commonwealth; and, as that superior law is the sole source of title, it follows that nothing henceforth can depend on State registration laws or State laws of any kind.

But as the land—not being in Commonwealth "territory" properly so called, that is, outside a State—remains in the State boundaries, it was necessary to provide that the governmental powers of the Commonwealth—exclusive in themselves—should, for the purpose for which the land was transferred, be entirely free from State jurisdiction. To this end sec. 52 (I.) was shaped in the form in which it exists. It enacts that the Commonwealth Parliament shall have exclusive power to legislate for "the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes." Even in America, it may be necessary to repeat, where no such explicit law exists, it is held that the Congress may validly legislate for the protection of its public lands, even within a State. As Brown J. said for the Court, in Camfield v. United States[53], "a different rule would place the public domain of the United States completely at the mercy of State legislation." This was a decision in 1897, and the later Commonwealth Constitution has provided specifically, and in larger terms, for the Federal power. The grant of exclusive power carries an inevitable inference with it. It shows that the proprietorship and the sovereignty were intended to go together in this respect.

(3)

The Royal Mines and Metals.—It was contended that these appertained to sovereignty, and therefore should remain with the States. A strange theory, in view of the higher "sovereignty," if that term be permissible in this relation, seeing it is the King — the same King — throughout. Why, when the King for his wider Australian powers, took over by virtue of Imperial legislation the land appertaining to the transferred governmental functions, he should be supposed, out of regard for the State prerogative, to ignore his Commonwealth prerogative, I am at a loss to understand. But let us see how the matter stands on principle. We must not confuse prerogative and sovereignty; often these coincide—sometimes they do not. "There are certain supreme powers and prerogatives inherent in, and inseparably annexed to the royal character. These form the political capacity of the King, and are incommunicable; the Constitution having entrusted the King alone with the discretion and power of exercising them" (Chitty on Prerogative, p. 384). Others are mentioned as not the subject of grant (pp. 385-386). But there are again some prerogatives that are grantable, and, therefore, not necessarily part of the sovereignty. The distinction is indicated with great clearness by Lord Watson in Coomber v. Justices of Berks[54], where he speaks of "the primary and inalienable functions of a constitutional government." Chitty (at p. 387) enumerates a number of things grantable, and they include "franchises." Franchises (p. 119) include "mines." Mines are one of the "jura coronae or rights of the Crown" which "so long as they are attached to the King are called prerogatives; but when such prerogatives are delegated to a subject they acquire the appellation of franchise." Mines, though among the jura coronae, are not among jura regalia.

(4).

Clearly, since the Lands Acquisition Act 1906 was passed under the power granted in sec. 51 (XXXI.) of the Constitution, any "property" specified in the statute may be taken provided "just terms" are available by law. Clearly also the same result must follow in the case of land taken compulsorily under the statute as in the case of the Constitution. The Constitution suo vigore passes instanter on transfer of the "Departments" the property used in connection therewith; the statute, under constitutional authority, passes, when its conditions are satisfied, the property taken for the "purposes" indicated. The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title.

But, as to the statute, it was said that the expression "Crown land" did not extend to cover the easements, reservations, powers and privileges of the State in lands which it had alienated; and further, supposing that expression sufficiently wide, that the power enacted to acquire them was illegal, because not accompanied by a provision for compensation—that is, "just terms." Now, whether the expression "Crown land" is intended by the Legislature to include such rights must, of course, depend on what the Legislature itself has said. It is easy enough, having regard to the Act of 1912 already referred to in the joint opinion, to say that the Legislature has thereby decisively silenced any adverse contention concerning the lands in question here. Whatever the occasion for passing that Act, its clear, unmistakable language, leaves no room to doubt its effect. But since the question has been again raised, and as many years have elapsed since 1912, and the Commonwealth's position on the main Act ought not to be left in doubt, a few additional observations are very desirable.

The meaning of the expression "Crown land" is, of course, "land belonging to the Crown." It is not the phrase familiar in State Acts, "Crown lands," which has a different signification, specially framed for the purposes of the State Department. But in the Commonwealth Act, framed for a totally different purpose, a different expression is used, namely, "Crown land." It is defined by sec. 5 to mean any "land" the property of a State, whether reserved or dedicated for any public purpose or not, but does "not include any estate or interest granted by the State to any person." But before we can tell what is meant by "land" the property of a State, we have to read the whole Act to see whether the Legislature meant that word to be confined to the physical substance, entirely unalienated for any estate or interest from the State, or whether it was left to be operated on by sec. 22 of the Acts Interpretation Act 1901 (see per Lord Robertson in Coster v. Headland[55]) so as to include "messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein," and "estate" to include "any estate or interest charge right title claim demand lien or incumbrance at law or in equity"; or whether some greater or less signification was enacted by the Act of 1906 itself, for the purposes of that Act.

First, we find in the definition of the expression "Crown land" the provision that it "does not include any estate or interest granted by the State to any person." It follows from this, that the Legislature contemplated "Crown land" within the meaning of the Act, although there had been a subdivision of the rights which constitute full ownership, and some or perhaps only one of such rights remaining in the Crown. For instance, a life estate or a lease for 1,000 years might have been granted in the land appearing on the plan, and, even so, the "land" to be taken might be "Crown land." Then we come to the word "land." We find it defined to "include" (not "mean") "any estate or interest in land (legal or equitable), and any easement, right, power or privilege over, in, or in connection with land." I stop there for a moment to say that unquestionably in the case of land in which a subject has any such interest as is there enumerated, his interest is "land" within the meaning of the Act, and so far as he is concerned the "land" may be taken. But the word "includes" allows the same result to follow if he has the fee simple absolute in the land. That is because of the natural and primary meaning of the word "land," the statutory definition merely extending it.

But, in addition, the Acts Interpretation Act applies both as to the word "land" and as to the word "estate," the latter being defined to include "any estate or interest charge right title claim demand lien or incumbrance at law or in equity." All that, there not being any contrary intention, must be read into the word "estate" in the Lands Acquisition Act 1906. So far there could hardly be any hesitation in reading "Crown land" in that enlarged sense. But the definition of "land" goes on to say it "also includes Crown land," but does not include public parks and other lands the subject of certain special reservations or dedications. That reference is supposed by the argument for the defendants to result in excluding from the expression "Crown land" the whole of the enlarged definition of "land," and to confine it to cases where the unqualified fee is still in the Crown. The result of that would be that the Commonwealth could take as land (1) Crown land wholly unalienated for any estate or interest, and (2) private land to the extent of any private interest, but not (3) Crown estates or interests in land alienated for any estate or interest. If the extended definition of "land" be excluded from the statutory definition of "Crown land," the word "land" must necessarily be confined to the physical substance. One can scarcely imagine Parliament intended such a state of things, at once so anomalous, and so crippling. Nor, in my opinion, is that a correct interpretation. The reason that the definition of "land" includes "Crown land" is plain. As the definitions are arbitrary, it might be argued that where "land" alone is used, it is used in the larger sense, but that, as "Crown land" is a composite phrase, the word "land" in that phrase had not the extended signification it had when used alone, either in the 1906 Act or the Acts Interpretation Act of 1901. That might be said for two reasons. One is that the Crown is said not to be bound unless expressly mentioned; another is that, where the Crown is expressly mentioned in certain portions, its omission in others is an additional indication that Parliament did not intend to bind the Crown in those other portions, and this not-withstanding that the Acts Interpretation Act by sec. 2 is declared to be "binding on the Crown." Therefore, in the definition of "land" as a specific expression, it is expressly enacted that wherever that word alone is used it is, in the absence of contrary intention, to include Crown land. But there is this qualification: where the word "land" alone is used it does not include certain lands dedicated or reserved as described; whereas where the full expression "Crown land" is used those lands are included. One section alone will bring forcibly into practical consideration the effect of the contention. Sec. 6, which for another purpose has been referred to in the joint judgment, enables, or recognizes that sec. 13 enables, the Governor of a State to agree with the Governor-General to sell or lease to the Commonwealth "any Crown land." Is there to be adduced from this section, read with the Acts Interpretation Act and the definition section, the intention of the Commonwealth Parliament that the State is incompetent to sell, grant or convey such fragments of ownership as are here in question? I cannot think so; and yet the contention goes so far.

It is very plain to me that in the expression "Crown land" the word "land" is as extensive as in the case of private land, and the word "Crown" signifies simply that the land in that extended sense belongs to a State, but the combined phrase includes parks not included in the single word "land."

In addition to the observations made on this subject in the joint opinion, I may refer to the following circumstances. Coming to Part II., we find it headed "Acquisition of Land." By sec. 13 of the Acts Interpretation Act 1901, that heading is "deemed to be part of the Act." What does "land" there mean? Clearly it includes, in addition to the primary meaning of "land," also the statutory inclusions. Then sec. 13 of the 1906 Act, in using the term "any land," intends to include so much in par. (a) by agreement with the owner. And when we come to par. (b) how can it be limited? Sec. 14 applies to sec. 13 (a); secs. 15 to 20 apply to sec. 13 (b). Sec. 15 uses the term "any land," which retains its full extensive meaning. Sec. 16 is exhaustive as applied to "the land described" in the notification in the Gazette. In sub-sec. 2 we find the phrase "Crown land," showing that "Crown land" is understood to be included in the expression "land" previously appearing. "Crown land" shares the variety of meaning, and is no more by sub-sec. 2 restricted to any particular form of that variety than it is by that sub-section restricted to land that was in fact dedicated or reserved. As to sec. 17, the land described in the notification may be so described as to mean all the land as the subject of acquisition in totality of ownership—as in the present case — or it may be so described as to specify some private interests only, or some Crown interests only. If the first, then all title, estates and interests cease, and the former owners have a transformed right, namely, to compensation, the nature and extent of which appear later. The word "title" is the proper and technical term to use with regard to the State, if the whole "title" proprietary and prerogative is intended to be taken. "Estate and interest" might be limited in construction as applied to a State, but "title" is all-embracing.

Then, when we come to sec. 27 to see the provisions for compensation, the same unrestricted plan is preserved. "Crown land" is there used so as to be understood as included in "land" unless specifically excluded.

And sec. 17 says simply to the owners: "Your property is now transformed from land into money." But to see what that is precisely we have to look to the Compensation Part. Sec. 26 deals with private "land." It says: "Where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act." Now, the word "land" where it first occurs is unquestionably used in the large statutory sense. Why not, then, also where it secondly occurs, namely, in "Crown land"? If, for instance, a man had an estate for life or a lease for twenty years, the Act contemplates that, if taken by compulsory process, the "land" in the fullest sense may be taken. What, then, happens when Crown land is taken? Sec. 27 applies to that. It says: "(1) Where any Crown land is acquired by compulsory process, the State shall be entitled to compensation under this Act." Now, before going further, does "Crown land" exclude the case where a private owner has the fee simple or any other estate or interest? Sub-sec. 2 seems to me to give a very plain answer in the negative. It says: "The compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth." That appears to me to cover every possible case of State interest in land taken. For the purpose of compensation you assume first that the State has a fee simple absolute—that is, you assume, until the contrary is shown, that the State is to receive the full value of the land held in complete ownership; and then you inquire how far that has been cut down by grants to private individuals, by reason of which such individuals have any "estate or interest" in the enlarged sense, and are entitled to compensation under sec. 26. The total value of the absolute fee simple is distributed accordingly between those former owners (see definition section) whose "estates or interests" and "title" have passed to the Commonwealth and been transformed into money claims. It may be useful at this point to say that the words "saving and reserving" used in a grant, with reference to minerals, have been held by the Privy Council to be more appropriately expressed by "excepting" (Mackenzie v. Bing Kee[56]). But, then, says sub-sec. 3 of sec. 27 "the State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue." This is perfectly correct, because proprietorship is to be fully paid for under whatever "title" it was held; but the Constitution itself, once that proprietorship passes, affixes a necessary legal consequence by sec. 52 (I.), and, therefore, sub-sec. 3 is declaratory and prevents misapprehension, lest it should be thought that the Commonwealth, in the earlier words of the section, was providing for more than mere proprietorship. Sub-sec. 3 has also this interpretative force: it indicates that land in which the State has any degree of right or interest may be the subject of compulsory acquisition. The amplitude of the ownership to be acquired is further indicated by sec. 62 relating to mining—as to which sufficient has been said in the joint judgment—and by sec. 64, which assumes for the Commonwealth Government the ordinary power of the Crown as exercised in the States.

For the reasons given I answer question 1 in the affirmative as to all the lands referred to.

Questions 2 and 3.—As to the second and third questions, an entirely new view was debated, and this may be conveniently disposed of at once. At the original hearing the only question contended for was incidental to the first question, namely, whether the proper title to be registered in favour of the Commonwealth was, so to speak, a clean title free from all State "reservations," including in that term royal mines and powers to make highways, &c. On this occasion a much more radical question was propounded, namely, whether the Registrar-General, as a State officer acting under and by virtue of the State enactment—the Real Property Act,—could be called upon to register any devolutions of title other than those effected as that Act requires, that is, by State Crown grant in the first instance, and then by the various instruments prescribed by the statute as the Registrar's authority to register the new proprietorships. This question, in my opinion, so presented, admits of no doubt. The Commonwealth Parliament has, by sec. 20 of the Lands Acquisition Act 1906, purported to require the State Registrar to register a copy of the Governor-General's notification as if it were a grant or conveyance or memorandum or instrument of transfer duly executed under the laws in force in the State. Sec. 64 also declared that the acquisition under sec. 85 of the Constitution shall for the purposes of the Act be deemed an acquisition and vesting under the Act. But as to this there is not even a declaration that any document is to be regarded as a grant, &c., as in sec. 20, and I take this provision to be one for compensation in accordance with the Constitution, sec. 85. In any case sec. 20 of the Act, purporting to require the State officer to treat the copy notification as a State instrument, is invalid. It is, of course, not pretended that, unless expressly authorized, the Commonwealth Parliament can directly repeal or amend State legislation. Where competent, either by concurrent or exclusive powers, Commonwealth Acts repugnant to any State law prevail (see Attorney-General for Ontario v. Attorney-General for the Dominion[57]). Sec. 20, however, is really an amendment of the Real Property Acts of the States, and is a command to a State official as such in the performance of his State functions to disregard the conditions of his statutory authority and to act in accordance with Commonwealth directions. His action is a State service, not an individual service. Sec. 20 attempts to create, not a new individual duty on the part of an inhabitant of the Commonwealth, but a new State governmental duty towards the Commonwealth. In the circumstances here appearing, that is not warranted by any provision of the Constitution, and the attempt fails. But I feel bound to point out that there is even a deeper fallacy underlying sec. 20 of the Lands Acquisition Act which is perhaps brought out, in the first instance, more vividly by reference to sec. 85 (I.) of the Constitution. Sec. 85 (I.) is a transfer of property from State to Commonwealth, not by State law or State authority, but by Imperial statute enacting the Constitution. The conditioning facts are the transfer of a State Department and the exclusive use of the property in question. But, given these conditioning facts, the sub-section is the charter of Commonwealth ownership, complete in itself, independent of any grant, and superior to any State law to the contrary. The new source of title is entirely outside State law, and therefore outside any executive authority of the State. The land is no longer within the operation of the Act; it is no longer the subject of a State assurance of good title or the subject of possible error or unauthorized transfer to a bona fide purchaser for value without notice, leaving the rightful former owner—the Commonwealth in this instance—with a mere claim against the assurance fund. The Commonwealth title rests on a wholly inconsistent basis so far as sec. 85 (I.) is concerned. Sec. 85 (II.) is a statutory permission to the Executive to acquire property where one of the conditioning facts is changed, and what I am about to say with reference to the Lands Acquisition Act in this connection applies to the second sub-section of sec. 85. The Act of 1906 was passed under the power granted by sec. 51 (XXXI.) of the Constitution. It provides two distinct methods of acquisition—voluntary and compulsory. As this power of the Commonwealth is to legislate with respect to the acquisition of property, legislation by the Commonwealth under an admitted power is not only independent of a State law but is superior to any State law, so long as it is confined to the ambit of the authority. The "acquisition" of property includes modes of acquisition, and the legislation may select the mode most convenient to the Commonwealth, unlimited by anything except the conditions prescribed by the Constitution. The compulsory method selected by the Act is "notification." That is quite apart from any State law or State mode of conveyance, and is as original a starting-point of title in the Commonwealth as the transfer by sec. 85. I say nothing about the voluntary method until a case arises calling for an opinion as to this. It may or may not be an adoption of the State grant and its subsequent devolutions according to State law. But the compulsory system, not only founded on an independent basis—the Constitution—but following an entirely independent route, is resultant in vesting the property in the Commonwealth entirely of its own force and outside the operation of State law, and therefore outside the operation of the Real Property Act. It is true that the Act provides very distinctly (sec. 45) for a conveyance to the Commonwealth by the claimant (whether State or individual) of the claimant's title or interest to the satisfaction of the Attorney-General. But that is not necessary for title, since the Act has already done all that and more (sec. 16). It is rather to record the transaction as an acknowledgment on the part of the claimant that he has no further claim in respect of the land.

For these reasons I answer questions 2 and 3 in the negative. These, however, are only questions of secondary importance. The main one is the first which relates to the respective substantive rights of the Commonwealth and the State, and it is as to their respective substantive rights that they desire to be informed.

Higgins J .

There are three classes of land referred to in the special case—(1) lands not alienated from the Crown, acquired by the Commonwealth compulsorily under the Lands Acquisition Act 1906 (pars. 2 to 5 of the case); (2) lands alienated from the Crown, acquired as aforesaid (pars. 6 to 11); (3) lands vested in the Commonwealth under sec. 85 of the Constitution (pars. 12 to 15). I propose to consider question 1 as amended in the order of the paragraphs, not of the question as subdivided, as the lands in class 3 seem to me to present additional and special difficulty.

As to class 1 (pars. 2 to 5), I am of opinion that the Crown's prerogative right to the royal metals has not been acquired by the Commonwealth.

I pass by what seems to me to be certain inaccuracies in the statement of the case, such as the assumption that the Crown's prerogative right to royal metals is founded on reservations, &c., contained in the Crown grant and/or imposed by the law of the State (par. 18); and I shall endeavour to answer the questions of substance which the parties wish to have determined.

I base my opinion on the principle that when land is granted by the Crown, or by the State under the Crown's authority, or under an Act which relates to land and interests in land only, royal metals in the land do not pass. The title to the land and the title to the royal metals are quite distinct—as distinct as the titles to the King's land and the King's horses thereon (Case of Mines[58]; Attorney-General of British Columbia v. Attorney-General of Canada[59]; Esquimalt and Nanaimo Railway Co. v. Bainbridge[60]). The other minerals in the land, of course, pass with the land, being incident to the land—unless expressly excluded. There is a special principle of prerogative law involved; the law is not neutral on the subject of prerogative rights, and it leaves no room for conjecture or inference. It is not suggested, of course, that the Crown's prerogative rights as to property do not apply in Australia (and see In re Bateman's Trust[61]).

Question 1 (b) (pars. 2 to 5).—Certain unalienated Crown lands at Stockton and at Kenilworth were acquired compulsorily by the Commonwealth for defence purposes and for post office purposes under the Lands Acquisition Act 1906. The land vested in the Commonwealth under sec. 16 of the Act on the publication of the notification in the Gazette; as to Stockton, 4th April 1912. The description in the Gazette was merely by metes and bounds—as to the Stockton land, "all that piece or parcel of land containing 71 acres ... commencing at a point ... to the commencing point." Royal metals, like treasure trove, belong to the Crown by virtue of the prerogative, and do not pass as part of the land under which they lie unless the grant or statute say that they are to pass (see, in addition to the cases above mentioned, Attorney-General v. Trustees of the British Museum[62]).

That this doctrine is not a mere rule of conveyancing is made clear by the Magdalen College Case[63]. One of the resolutions of the Judges was that "where the King has any prerogative, estate, right, title, or interest ... by the general words of an Act he shall not be barred of them." In the famous case as to royal metals under Australian land— Woolley v. Attorney-General of Victoria[64]—the Judicial Committee of the Privy Council spoke of the doctrine as a recognized rule of construction of statutes—"the prerogative rights of the Crown can be affected only by express words or necessary implication." When the Federal Parliament passed a law for the acquisition of land by the Commonwealth, it did not legislate for the acquisition of royal metals; in fact, royal metals are not mentioned from first to last in the Act, although the widest interpretation is given to "land" in the interpretation section (sec. 5).

That the title to royal mines is absolutely distinct from the title to royal lands is shown emphatically by Lord Watson's language in delivering the opinion of the Judicial Committee in Attorney-General of British Columbia v. Attorney-General of Canada[65]:—"According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, are not regarded as partes soli, or as incidents of the land in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title from that to which its right to the precious metals must be ascribed. In the Mines Case2(1568) 1 Plowd., at p. 336a. all the Justices and Barons agreed that, in the case of the baser metals, no prerogative is given to the Crown; whereas all mines of gold and silver within the Realm, whether they be in the lands of the Queen or of subjects, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof and with other such incidents thereto as are necessary to be used for the getting of the ore. In British Columbia the right to public lands, and the right to precious metals in all Provincial lands, whether public or private, still rest upon titles as distinct as if the Crown had never parted with its beneficial interests." In that case, in pursuance of Articles of Union sanctioned by both the Canadian and the British Columbia Legislatures, the latter Legislature granted to the Dominion of Canada by statute the "public lands" for twenty miles on each side of a railway to be constructed by the Dominion through British Columbia (sec. 2), and also another area of land in Vancouver Island (sec. 3); and it was held by the Judicial Committee of the Privy Council that this statutory grant did not carry the royal mines. In a subsequent case, reliance was placed on the specially strong words in sec. 3 as to Vancouver Island; for the statute had, in addition to the lands, the words "including all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances whatsoever thereupon, therein, and thereunder"; but the argument was rejected by their Lordships, as not one of these expressions necessarily included royal metals or royal mines (Esquimalt and Nanaimo Railway Co. v. Bainbridge[67]).

These Canadian cases show further that the rule as to prerogative rights applies even where the grant or transfer of title is made from one agency of the Crown to another — from the Provincial Government to the Canadian Government. It applies to a statutory transfer from the Crown in right of the Province (or State) to the Crown in right of the Dominion of Canada (or Commonwealth of Australia). In a subsequent case before the Judicial Committee under the same statute, but relating to fisheries, the expressions of Lord Watson quoted above were restated and affirmed (Attorney-General for British Columbia v. Attorney-General for Canada[68]).

The Esquimalt Case[69], moreover, throws light on another very important aspect of the position—the relation of the statutory grant to the mining laws of the province. It was held that the Mining Acts of British Columbia, enabling the Government to grant "placers'" rights (equivalent to Australian "miners'" rights) to men to mine for gold were still operative to confer on the holders of the placers' rights the right to mine for gold under the land granted to the Dominion. It would be extremely awkward if the New South Wales laws as to gold mining were to be arrested abruptly at the boundary of land sold to or acquired by the Commonwealth. After all, the land acquired still remains part of New South Wales, politically, and subject to New South Wales laws; though not to New South Wales taxation of property (sec. 114 of the Constitution). The numerous lands acquired from New South Wales by the Commonwealth as property do not constitute a series of Commonwealth enclaves, in which New South Wales writs cannot operate or New South Wales police perform their functions. It is only the property in the lands (at most) that passes to the Commonwealth; the pieces of land acquired are not Alsatias for Jack Sheppards.

It is true that even this point has been contested. Under sec. 122 of the Constitution the Parliament may make laws for the government of any territory surrendered by any State and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit; and under sec. 52 of the Constitution the Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to (1) the seat of government of the Commonwealth and all places acquired by the Commonwealth for public purposes. In my opinion, the words "places" acquired by the Commonwealth in sec. 52 do not apply to lands acquired as property under the Lands Acquisition Act; they refer to "places" acquired in the sense of sec. 122, any territories acquired in a political sense. Sec. 122 actually refers to the parliamentary representation of the place acquired. The section of the Constitution relating to the seat of government confirms this opinion (sec. 125); for in that section not only is the territory to be granted to or acquired by the Commonwealth, but the property in the soil is to be vested also. My point is that the Lands Acquisition Act does not deal with the property in royal mines although it deals with the property in land. I do not say that under the Constitution the property in royal mines could not be affected by an appropriate Act under sec. 51 (XXXI.) of the Constitution. Perhaps it may; for in that section the word used is "property"—"the acquisition of property"; but the question does not arise. The present Act has very wide definitions of the words "land," "Crown land," "owner"; but there is nothing in the definitions, or throughout the Act, expressly or necessarily referring to royal mines or to anything but land. It is true that under sec. 16 (1) the land acquired by notification vests in the Commonwealth "freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth"; but full effect can be given to these words by treating them as confined to land, as not including royal mines which are not part of the land or incident thereto. The distinct prerogative right to the royal mines is not touched. It is true that under sec. 16 (2) the notification in the Gazette has the effect of cancelling any "dedication or reservation" to which the Crown land was subject at the date of the notification; but this is not a case of "dedication or reservation." These are technical terms. According to Davidson (Conveyancing, 4th ed., vol. i., p. 96), "an exception must be part of the thing granted, and of a thing in esse at the time of the grant; but a reservation must be of some new thing issuing out of the thing granted. Thus, an exception may be of a house, or close of land comprised in the property granted, or of trees generally, or specified trees; while a reservation is of a rent or a right-of-way." Sec. 17 provides that "upon the publication of the notification in the Gazette, the estate and interest of every person entitled to the land specified in the notification, and the title of the State to any Crown land specified in the notification, shall be taken to have been converted into a claim for compensation"; but the title to the royal mines is not an estate or interest in land, is not included in the title to Crown land. It is true that sec. 62 of the Act enables the Governor-General to "authorize" the grant of a lease or licence to mine for any metals or minerals on any land the property of the Commonwealth. This power is not confined to lands acquired under the Act; but, assuming it to be valid, it does not necessarily apply, and therefore does not apply at all, to royal mines. There are no express words, there is no necessary implication, that royal mines are to pass to the Commonwealth by the Gazette notification. Further, the provision for compensation for the land taken appears to me to be wholly inconsistent with the view that royal mines pass to the Commonwealth as part of the land; for the compensation is to be "estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth" (sec. 27 (2)). Now, the proprietor of a mere estate in fee simple in the land would not be entitled to any royal mines in the land, and would not be entitled to compensation therefore. It is the fair inference that the Commonwealth takes and pays for what the proprietor in fee simple could give, and no more. It would be the extraordinary result of the argument for the Commonwealth that if there were under the land acquired a gold mine as rich as Mount Morgan, to the parties knowledge, and if the Commonwealth acquired it under the Act, the Commonwealth would have only to pay compensation for the value of the land as land held in fee simple, and be entitled to all the gold without paying anything for it. The provision in sec. 27 (3), that "the State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue," does not mean that the political rights over the land taken pass to the Commonwealth; it refers mainly, I think, to the provision of sec. 114 of the Constitution, forbidding the State to tax property of the Commonwealth. Under the Act the State is not to be paid compensation for its loss of taxation, revenue, &c.

The argument on both sides assumes—probably rightly—that the unalienated land in a State is "land the property of a State" within the meaning of the definition of "Crown land" in the Act (sec. 5). Indeed, unless Crown land over which the New South Wales Parliament has power to sell and to appropriate the proceeds is to be treated as "property of the State," there is no other land to which the words "property of the State" can refer. But the exact legal position of the State of New South Wales, as well as of the Province of British Columbia, seems to be not that of owner but rather that of administrator (with power to appropriate the proceeds). For, under the New South Wales Constitution Act (18 & 19 Vict. c. 54, sec. 2), the State Legislature got "the entire management and control of the waste land belonging to the Crown in the said Colony and also the appropriation of the gross proceeds of the sales of any such lands and of all other proceeds and revenues of the same from whatever source arising within the said Colony including all royalties mines and minerals." Having regard to the word "royalties," I do not say that the New South Wales Legislature had not power to sell or lease any subjacent royal mines; but, whatever it sells or leases, it apparently acts as donee of a power. The expressions used by Lord Watson in the British Columbia Case[70] seem to be substantially applicable to New South Wales—that "the title to the public lands ... has all along been, and still is, vested in the Crown; but the right to administer and to dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the Province, before its admission into the federal union." The word "convey" was applied in the agreement and in the Act to the lands the subject thereof; but, "leaving the precious metals out of view for the present, it seems clear that the only conveyance contemplated was a transfer to the Dominion of the Provincial right to manage and settle the lands, and to appropriate their revenues. It was neither intended that the lands should be taken out of the Province, nor that the Dominion Government should occupy the position of a freeholder within the Province"[71]. But the draftsman of the Lands Acquisition Act seems not to have recognized any distinction between the vesting of State land in the Commonwealth and the vesting of private land in the Commonwealth (see sec. 16). This aspect of the subject, however, has not been argued.

For these reasons I am of opinion that the Commonwealth has not acquired the royal metals in the lands at Stockton or at Kenilworth (pars. 2 to 5); but that it has acquired any other minerals—the ordinary minerals—under these lands—whatever "acquired" means.

Question 1 (c) (pars. 6 to 11).—The Richmond land was alienated in fee simple from the Crown on 1st May 1849, and was compulsorily acquired by the Commonwealth from one Way, who was then registered as the proprietor of an estate in fee simple subject to the "reservations" (sic) of "all mines of gold of silver and of coals," of "power to resume any part of the said land for public purposes," of "power to make and conduct through the said land drains and sewers deemed expedient," of "a quit rent of £2 16s. 6d. per annum for ever."

The Pennant Hills land was alienated in fee simple from the Crown on 30th June 1823, and was compulsorily acquired by the Commonwealth from Murray and others who held title under the old law of conveyancing. The grant in fee simple was subject to reservations in favour of the Crown—power to take timber for naval purposes and power to take part or parts of the land for highway or highways.

For the reasons which I have stated in my answer to question 1 (b), I think that any royal metals contained in either of these lands did not pass to the grantees of the land, or through their successors in title to the Commonwealth; but this question is not asked. The only question asked is as to the so-called "reservations or conditions."

In my opinion, sec. 16 (1) of the Act applies; so that the land described in the notifications became vested in the Commonwealth "freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth." The Commonwealth takes the corporeal land notified free from all interests held by the Crown (in right of New South Wales) or by others, in the land or over it or in connection with it.

The Commonwealth, as to this land, is free from any outside control or restriction. I think that the words of sec. 16 (1), "freed" &c., should be taken in the widest sense. Sec. 17 provides that upon the publication of the notification in the Gazette "the estate and interest of every person entitled to the land specified in the notification ... shall be taken to have been converted into a claim for compensation"; and in view of the wide definition of the word in sec. 5 it is not doing violence to the words of the section to say that the word in sec. 17 includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over in or in connection with that land. "Every person" includes the King, as a body politic and a corporation sole; and the interest of the Crown as owner of any easement over the land specified, or of any interest in or over or in connection with the land specified, is, in my opinion, converted into a claim for compensation. In brief, I regard sec. 17 as converting into a claim for compensation not only the interest of the owner of the land in the ordinary sense, but the interest of everyone who has an interest, right or privilege in or over the land specified. It has been so held under the English Lands Clauses Consolidation Act, under similar words. A mere power to sink pits for coal in land (not demised) was held to be an interest in that land for the purpose of compensation (In re Masters and Great Western Railway[72]; and see Duke of Bedford v. Dawson[73]; R. v. St. Luke's, Chelsea[74]).

But it was suggested in the course of the argument that there is no provision for compensation to be paid to the owners of any outside interests in or over or in connection with the land; and that if there is no provision for such compensation, the acquisition of the lands under the Act is not "on just terms" within the meaning of the Constitution (sec. 51 (XXXI.)), and that therefore the Act is unconstitutional, invalid — at all events so far as regards the outside interests. No reference to the Constitution, or to the limits of the powers of the Commonwealth Parliament, appears in the special case; and I am strongly disposed to think that the case assumes the Act to be valid, and that it is our duty to answer the questions on that assumption. There is a wholesome rule adopted in the United States and followed here, that the Court should not pronounce on the validity of an Act of Parliament unless it becomes absolutely necessary to do so for the determination of the issues presented; and it may be that a decision against the validity of this Act will cause dire confusion as to past transactions. But these considerations as to our duty have not been argued.

If, however, we are to decide the matter, I am of opinion that the Act does, lamely but effectually, provide for compensation for these interests destroyed by the operation of the Act. Sec. 26 provides that "where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act." "Owner" may be read as applying to "owners" under the familiar principle that the singular may be read as including the plural (Acts Interpretation Act 1901, sec. 23). Indeed, in sec. 18, where the distribution of copies of the notification makes the singular noun inappropriate, the expression "owners of the land or such of them as can with reasonable diligence be ascertained" is actually used; but in sub-sec. 2 the Act naturally reverts to the word "owner." Then under sec. 5, the interpretation section, the word "owner" includes, with respect to the land, "any person who under this Act is enabled to sell or convey the land to the Commonwealth"; and "land" includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interests appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (sec. 61 (1) (a)); and this right would be anomalous if such owners were not also entitled to compensation. Then, although there is no express provision that lessees of land acquired are to be compensated for their loss in addition to the person seised in fee simple, sec. 30, from its form of language, assumes that such lessees are to be compensated: "If any person having a greater interest than as a tenant at will of any land acquired by compulsory process makes a claim for compensation in respect of any unexpired term or interest under any lease" the Attorney-General may require production of the lease. Sec. 32 is thus expressed: "(1) Any State or person claiming to be entitled to compensation under this Act may make a claim for compensation." If the only person who can claim for compensation is the "owner" in the popular sense—the man who has the fee simple—it is curious that the word "owner" as used in sec. 26 is not used here also. Again, there is the principle laid down in Commissioner of Public Works (Cape Colony) v. Logan[75] that the Courts, in interpreting such an Act, should presume, unless the contrary intention is expressed in unequivocal terms, that Parliament did not intend to take away a man's property without compensation.

My opinion is that question 1 (c) should be answered in the affirmative as to all the lands referred to therein.

Question 1 (a) (pars. 12 to 15).—The Crown land at Wollongong was, at the time that the Constitution came into force, used by the New South Wales Department of Naval and Military Defence exclusively in connection with that Department—for a fort; this Department was transferred to the Commonwealth by proclamation of 1st March 1901; and, under sec. 85 of the Constitution, "all property of the State, of any kind, used exclusively in connection with the Department," became ipso facto vested in the Commonwealth. The word here used is "property"—a wider term than "land"; and I assume, as the parties assume, in favour of the Commonwealth, that any royal mines under the New South Wales Crown land as well as the Crown land itself may be treated as "property of the State." I shall assume also, in favour of the Commonwealth, that if there were no royal metals under the land, the whole land from the surface downwards to the centre, the whole conical figure, should be treated as "used exclusively" in connection with the Department; for there was no other use of any of the subjacent strata at the time (see Hooper v. Bourne[76]; Clark v. Elphinstone[77]; Midland Railway Co. v. Wright[78]). The use of the surface is pr