Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: applied
Further, in the majority judgment in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HC ') at 137-138 [218]-[219], their Honours observed: '218. Reservation of land under the relevant Western Australian provisions inhibited the Crown's future action in relation to that land. The inhibition, however, was not, and could not be, absolute. As Windeyer J pointed out in Randwick Corporation v Rutledge , even if land were dedicated to a public purpose, it did not take the land outside the authority of the legislature. Moreover, under the Western Australian statutes, reserves, other than those dealt with by the Permanent Reserves Act 1899 (WA) and its legislative successor, could be cancelled or the purpose of the reservation altered by executive act. Even permanent reserves could be cancelled or the purpose of the reservation altered by statute. Further, as had been held in Williams v Attorney-General for New South Wales ('the Government House Case '), the Crown appropriating lands to a particular purpose, without the creation of a trust, did not mean that the land became dedicated to that purpose, or that it could not later be used by the Crown for some other purpose. 219. Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as 'public utility', the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.' (footnotes omitted) 45 Although their Honours were not determining the precise legal consequences of a reservation of land for public purposes, there is nothing in the above passages that suggests that there is any particular difficulty with such a reservation. 46 For the above reasons, I am satisfied that reserve 631 was created for one of the purposes specified in reg 29 (13) and was validly created. 47 Reserves 1637, 1640 and 1644 were created for 'public purposes' under the Land Regulations 1887 (WA), which were not relevantly distinguishable from the Land Regulations 1882 (WA), save that the later regulations assumed that reserves could be created for 'public purposes': see regs 2 and 36 (which defined 'public purposes'). Thus, if there is any distinction to be drawn between the two sets of regulations, it is one that provides added support to the State's argument in favour of the valid creation of the relevant reserves. As it was accepted by the parties that the finding in respect of reserve 631 would determine the issue of validity in respect of all four of these reserves, I need not pursue this aspect of the matter further. It follows that reserves 1637, 1640 and 1644 were also validly created. 48 On 1 April 1930, a special lease was purportedly granted under s 153 of the Land Act 1898 (WA) ('the LA 1898 ') over Broome Lot 622 (which comprises all of area 2733). The lease, which was for a term of five years commencing on 1 April 1930, was for the purpose of 'a foreshore camp, store site and repairing boats'.