The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on a land rights claim over a former prison. Under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW), Crown lands that may be subject to a land rights claim must not be lawfully ‘occupied’. After Berrima Gaol was decommissioned in 2011, the Crown Lands Minister rejected the appellant’s claim over the land on the basis that while the prison was no longer operating, the land and buildings were still occupied by Corrective Services NSW which guarded and maintained them, and used the site for working visits by community service order workers. The NSWCA held that the land was still occupied on the basis of regular use by the community service order workers, that no statutory authorisation was necessary for that occupation to be lawful, and that an authorisation could be implied under the Crown Lands Act to maintain and secure the land for the time reasonably required to make a decision about its future use. Before the High Court, the appellant sought to contend that while the meaning of ‘occupation’ is determined by reference acts, facts, matters and circumstances, the mere holding of surplus land pending a decision on its future use did not amount to lawful occupation (see details at [24]ff), and that the Crown lacked the necessary statutory authorisation for the occupation.

The Court, by a 5:2 majority, dismissed the appeal. This dismissal ends the appellant’s land rights claim under the Act.

The joint judges (French CJ, Kiefel, Bell and Keane JJ) rejected both of the appellant’s contentions. The joint judges noted that despite the beneficial and remedial purpose of the Act, a ‘beneficial construction’ of s 36 urged by the appellant was not warranted because the dispute was over the ordinary meanings of particular words ‘used’ and ‘occupied’ in the provision (see [30]–[34]). The joint judges then rejected the appellant’s contention that the purpose for which the land is dedicated or reserved must be actively pursued by the acts which are said to constituted occupation of that land: here, that land dedicated for gaol purposes can only be lawfully occupied if it is actively used as a gaol (see at [39]). While the Court of Appeal erred in holding that gardening by community service order workers was still use for the purpose of punishing offenders (see at [36]), and the land and buildings were not used or occupied for gaoling purposes, nonetheless there is no warrant for an implied requirement that the occupation be for the purposes for which the lands were dedicated or reserved: ‘Lands which are dedicated or reserved for any purpose qualify as claimable Crown lands. The phrase is merely descriptive of lands which are reserved or dedicated.’: at [41].

Turning to the statutory authority question, the joint judges held that the Crown is able to occupy the claimed land without additional statutory permission. The joint judges rejected the appellant’s argument that s 2 of the New South Wales Constitution Act 1855 (Imp), which provided that the ‘entire Management and Control of the Waste Lands belonging to the Crown … shall be vested in the Legislature [of the colony]’, made statutory authorisation necessary: that provision, read in context, did not abrogate the Crown’s powers but rather made them subject to the control of the legislature, ‘bring[ing] all the lands within the colony under the legal control of the colonial legislature so that the radical title of the Crown could be exercised only in conformity with the statutes of the colony’ (at [55], and see at [47]–[52]). With the acquisition of the fee simple estate in the land here, NSW gained the right to occupy the land, and that occupation would be lawful provided it is not subject to some other statutory prohibition upon occupation (at [61]). Finally, the joint judges rejected the appellant’s claim that Correctional Services was not empowered or authorised to occupy the land: it did so as an agent of the Crown, which was the real occupier (at [62]).

Gageler J also dismissed the appeal, collecting the appellant’s claims into three arguments and rejecting each. The first argument, that the land could not be occupied because its dedication as a prison remained in force and what was occurring on it currently had no connection to that purpose, was based on the premise that occupation under s 36(1)(b) can only proceed by reference to the public purposes of the dedication (at [76]). Gageler J rejected the appellant’s contention that several cases supported this interpretation (see discussion at [77]ff), and concluded that while occupation of land can be for a purpose, and the purpose of physical acts may inform whether acts amount to occupation in fact, purpose is not an intrinsic part of the concept of occupation: ‘Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken’ (at [88]). Given the continuing presence of Corrective Services NSW, it was open for the primary court to find that the land was occupied (see [90]), and the beneficial purposes of the Act and structure of s 36 did not change that result (see [91]–[95]). The appellant’s second argument, that occupation of the land was unlawful without statutory authority because s 2 of the New South Wales Constitution Act 1855 (Imp) removed the executive’s power of management and control of the land and vested it in the NSW legislature, fails because that section did not confer legislative power at the exclusion of non-statutory executive power: conversely, the section confirmed the executive’s power within the context of the new system of responsible government established by the 1855 Constitution (see [100], and [101]ff). Finally, Gageler J dismissed the argument that Corrective Services NSW lacked the non-statutory executive power to occupy the claimed land because it operated as a division of the executive government of the State of NSW, which held the power to occupy the land (at [140]–[142]).

In dissent, Nettle and Gordon JJ held that the land was not ‘occupied’ for the purposes of s 36. While in one sense the land is ‘occupied’ due to the presence of Corrective Services NSW, occupation may have a wider range of meanings as informed by the text, context and purpose of the legislation (see [182]–[184]). Here, the beneficial and remedial purposes of the Land Rights Act includes providing land rights for Indigenous persons and groups in acknowledgement of dispossession without compensation during colonisation, to be effected through claims made by the ALC. The Act’s terms and legislative history mean that a ‘more nuanced understanding of “occupation” better accords with [its] purpose’ (at [185]), and it is thus appropriate to read s 36(1) as requiring that occupation be tied in some way with the purposes of the relevant dedication (see [188]). In this case, following the decommissioning of the gaol, the land and buildings were no longer occupied in a way that was tied to the dedication for gaol purposes, and the land became claimable (at [189]–[192]). The Minister’s contention that the land and buildings are occupied pending a decision on future use should be rejected because the definition of ‘claimable Crown lands’ in s 36 exclude lands the Minister thinks are needed or are likely to be needed for residential or essential public purposes: a mere suggestion that they might be sold, or put to a different future use, or no use at all, precisely keeps them claimable under the Act (at [193]–[196]).