Opinion Number. 8



Key Legislation

CONSTITUTION, ss. 51 (vi), 52(H), 69, 70 : DEFENCE ACT 1903, s. 69 : CROWN LANDS ACT OF 1884 (QLD), ss. 95, 96, 97, 121


The proposal apparently is to ask the Queensland Government to proclaim a reserve under section 95 of the Queensland Crown Lands Act of 1884, which empowers the Governor in Council 'to grant in trust or by Proclamation reserve from sale or lease, either temporarily or permanently, any Crown lands which, in his opinion, are or may be required' for various public purposes, and amongst others 'for any other purpose of public defence, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the colony, or for any special purpose which may be approved by resolution of botfiiHouses of Parliament'.

Section 96 enables the Governor in Council, by proclamation, to place any lands so reserved under the control of trustees, to declare the trusts of the land, and to empower the trustees to make by-laws for carrying out the objects of the trust, and impose penalties for their breach.

Section 97 provides that for the purposes of any legal proceeding the trustees shall be deemed to be the absolute owners of the land.

Section 121 provides that the Governor may by proclamation rescind, either in whole or in part, any reservation of any Crown lands as reserves for public purposes.

'Crown lands' means all lands vested in His Majesty which are not for the time being dedicated to any public purpose, or subject to any deed of grant, lease, contract, promise, or engagement, made by or on behalf of His Majesty; and all lands subject to a right of depasturing or held under occupation licence.

Section 51 (vi) of the Constitution gives the Federal Parliament power to legislate as to 'the naval and military defence of the Commonwealth and of the several States'. Section 52 gives the Parliament exclusive power to legislate on 'matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth'. By proclamation under section 69, the departments of naval and military defence in each State have become transferred to the Commonwealth.

The questions arise:

  1. Whether the power of the Governor in Council of Queensland in this matter has passed to the Governor-General under section 70.
  2. Whether, if not, that power can still be exercised by the Governor in Council of Queensland.
  3. What, in the latter case, would be the position of the Commonwealth.

(a) I do not think that this power is 'in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth'. It is a power to reserve Crown lands from sale or lease for certain purposes, of which public defence is one. It is essentially a power with respect to dealings with Crown lands. The Commonwealth, in the exercise of its power to legislate as to defence, has power to make necessary provisions for enabling the troops to manoeuvre (see for instance clause 115 of Defence Bill(1)); and in the exercise of its power of eminent domain it may acquire land for defence purposes; but it has no power to suspend the operation of the Crown Lands Act of the State.

(b) Notwithstanding that legislative power as to defence, and exclusive legislative power as to matters relating to the Department of Defence, has been given to the Commonwealth, I think that the Governor of Queensland may still exercise the power of proclaiming reserves for defence purposes. The purpose of'public defence5 is wide enough to cover defence whether undertaken by the Queensland Government, the Imperial Government, or the Commonwealth Government.

(c) If the Governor in Council makes a proclamation under section 95, reserving the land from sale or lease, the effect will not in any way be to vest the land in the Commonwealth. If he makes a proclamation under section 96, placing the land under the control of the Commonwealth as a trustee, I am of opinion that the land would not be vested in the Commonwealth, so as to entitle the State to any compensation. The land would, for purposes of legal proceedings by or against the Commonwealth as such trustee, be deemed to be vested in the Commonwealth; but not for any other purpose. And the reservation would be revocable by the Governor in Council at any time.

[Vol. 1, p. 46]

(1) Enacted as section 69 of the Defence Act 1903.