Attorney-General (ACT) v Commonwealth

95 ALR 739
26 FCR 82; 1990 - 0904A - FCA; No. ACT G29 OF 1990 FED NO. 490

---

(Judgment by: Gallop J, Lockhart J, Neaves J)

Between: Attorney-General (ACT)
And: Commonwealth

Court:

Judges:
Gallop J
Lockhart J
Neaves J

Subject References:
Constitutional Law

Judgment date: 4 September 1990

Canberra

---

Judgment by:
Gallop J
Lockhart J
Neaves J

The issue in this appeal, which is from a judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) given on 31 May 1990, is whether certain land situate at Northbourne Avenue, Canberra City and known as Block 1, Section 3, Division of Braddon and on which is erected a building known as "Gowrie Private Hotel" was validly declared under sub-s 27(1) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ("the Planning and Land Management Act") to be "National Land."  

The Planning and Land Management Act forms part of what has been described as a "package" of legislation to provide a measure of self-government for the Australian Capital Territory.  The other elements of the "package" are the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act"), the Australian Capital Territory (Electoral) Act 1988 (Cth) and the ACT Self-Government (Consequential Provisions) Act 1988 (Cth).  

Each of the four statutes mentioned was assented to on 6 December 1988. While some of the provisions commenced on the day of Royal Assent, other provisions commenced on various days as fixed by Proclamation.  Section 27 of the Planning and Land Management Act with the provisions of which this appeal is primarily concerned commenced on 31 January 1989 (see Commonwealth of Australia Gazette 1989, No. S39).  

The Self-Government Act, by s 7, established the Australian Capital Territory as "a body politic under the Crown by the name of the Australian Capital Territory".  The body politic consists of a Legislative Assembly (s 8) and an Australian Capital Territory Executive (s 36).  The Legislative Assembly ("the Assembly") consists, initially at least, of 17 members (sub-s 8(2)) elected as provided by Part VIII of the Self-Government Act and by the Electoral Act (s 66).  It has power to make laws for the peace, order and good government of the Territory (s 22) though some matters are, by s 23, excluded from its legislative power.  The Governor-General may, in the circumstances mentioned in s 35, disallow a law made by the Assembly.  The Australian Capital Territory Executive ("the Executive") consists of the Chief Minister elected under s 40 from the members of the Assembly and such other Ministers, initially three in number, as are appointed by the Chief Minister from among the members of the Assembly (ss 39-41). By s 37 the Executive has the responsibility of:  

"(a)

governing the Territory with respect to matters specified in Schedule 4;

(b)

executing and maintaining enactments and subordinate laws; and

(c)

exercising such other powers as are vested in the Executive by or under a law in force in the Territory or an agreement or arrangement between the Territory and the Commonwealth, a State or another Territory."

The matters specified in Schedule 4 are numerous and wide ranging.  An "enactment" is a law made by the Assembly under the Self-Government Act or a law, or part of a law, that is an enactment because of s 34 (s 3). A "subordinate law" is an instrument of a legislative nature made under an enactment (s 3).  

The Self-Government Act also makes provision with respect to matters of administration and finance (Parts VI and VII).  

The day on which the Assembly became empowered to make laws was 11 May 1989, (ss 7 and 22 and Commonwealth of Australia Gazette 1989, No. S164), that date being referred to in the Planning and Land Management Act as "Self-Government Day."  

The Planning and Land Management Act repealed the National Capital Development Commission Act 1957 (Cth) and provides for the planning of the Territory and the management of land in the Territory.  It established an Authority by the name of the National Capital Planning Authority (s 5).  The functions of the Authority include the function of preparing and administering a National Capital Plan (s 6).  The object of the National Capital Plan is to ensure that Canberra and the Territory are planned and developed in accordance with their national significance (s 9).  The Plan is to define the planning principles and policies for giving effect to the object of the Plan and to set out the general policies to be implemented throughout the Territory, being policies of land use and the planning of national and arterial road systems (sub-s 10(2)).  The Plan may specify areas of land that have the special characteristics of the National Capital to be Designated Areas (sub-s 10(1)) and it may set out the detailed conditions of planning, design and development in those areas (sub-s 10(2)).  

Part IV is headed "The Territory Plan".  Section 25 provides that the Assembly is, as soon as practicable, to make laws providing for establishing a Territory planning authority and conferring functions on that authority, including the function of preparing and administering a plan in respect of land (other than Designated Areas), not inconsistent with the National Capital Plan.  The object of the Territory Plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the Territory to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation (sub-s 25(2)).  The Territory Plan is to define the planning principles and policies for giving effect to the object of the plan and may include the detailed conditions of planning, design and development of land (other than Designated Areas) (sub-s 25(3)).  

Part V has the heading "Land Management".  It comprises ss 27-32, the text of which should be set out in full.  They provide:   

"27.(1)

The Minister may, by notice published in the Commonwealth Gazette declare specified areas of land in the Territory to be National Land.

(2)

The Minister shall not declare an area to be National Land unless the land is, or is intended to be, used by or on behalf of the Commonwealth.

(3)

If an Act vests the management (however described) of specified land in the Territory in a person or body, the land is National Land for the purposes of this Act.

(4)

Subsection (3) does not apply to the vesting of an estate in land.

28.

At any time when any land in the Territory is not National Land, that land is Territory Land for the purposes of this Act.

29.(1)

The Executive, on behalf of the Commonwealth:

(a)

has responsibility for the management of Territory Land; and

(b)

subject to section 9 of the Seat of Government (Administration) Act 1910, may grant, dispose of, acquire, hold and administer estates in Territory Land.

(2)

The Executive shall perform its functions under subsection (1) subject to enactment and in accordance with the principles:

(a)

that new estates in Territory Land shall be granted only in accordance with procedures that are notified to the public; and

(b)

that appropriate classes of decisions relating to the administration of estates in Territory Land shall be subject to just and timely review without unnecessary formality.

(3)

The term of an estate in Territory Land granted on or after Self-Government Day shall not exceed 99 years or such longer period as is prescribed, but the estate may be renewed.

(4)

The Authority may intervene in any proceedings for review of a decision relating to the administration of an estate in Territory Land.

30.(1)

Where, apart from this section, the Commonwealth would be liable in respect of an act done or omitted to be done by the Territory in the performance of its functions under section 29, the liability is vested in the Territory and ceases to be a liability of the Commonwealth.

(2)

Where:

(a)

a liability arises in respect of land at a time when it is Territory Land; and

(b)

the liability arises from a covenant given by the Commonwealth at any time in its capacity as owner of the land;

the liability is vested in the Territory and ceases to be a liability of the Commonwealth.

31.(1)

Where any money would, apart from this section, be payable to the Commonwealth in respect of any land in discharge of a liability existing at a time when the land is Territory Land, the money is payable to the Territory instead of the Commonwealth.

(2)

Where any Territory Land that is not subject to a leasehold interest becomes National Land, the Commonwealth shall pay to the Territory an amount equal to the reasonable compensation that would be payable to the Territory under the Lands Acquisition Act if:

(a)

immediately before the land became National Land, the Territory had been granted a leasehold interest in the land by the Commonwealth for the maximum term allowable under subsection 29(3);

(b)

that interest was granted for any purpose for which a leasehold interest in that land could be granted;

(c)

that interest was subject to any estate in the land existing immediately before it became National Land;

(d)

subject to paragraph (c), the Territory was not bound by any express or implied covenants (including covenants to pay rent or rates) in relation to that interest; and

(e)

when the land became National Land, that interest was acquired by the Commonwealth.

(3)

Subsection (2) applies only to Territory Land that becomes National Land at any time after the first declaration of National Land.

32.(1)

The Lands Acquisition Act does not apply in relation to:

(a)

anything done by or on behalf of the Commonwealth or a Commonwealth authority in respect of an interest in Territory Land while the interest is vested in the Commonwealth or a Commonwealth authority; or

(b)

the acquisition (compulsory or not) of an estate in Territory Land by the Territory, whether acting on behalf of the Commonwealth or not.

(2)

In subsection (1):

'estate' includes the interest of the Commonwealth in land in which no person other than the Commonwealth holds an estate."

The reference in sub-s 29(1) to the Executive is a reference to the Australian Capital Territory Executive established by s 36 of the Self-Government Act. The references in ss 31 and 32 to the Lands Acquisition Act are to the Act for the time being in force relating to the acquisition of land by the Commonwealth and associated matters (s 4).  

As has already been mentioned, s 27 commenced on 31 January 1989. Sections 28-32 commenced on 11 May 1989 (Commonwealth of Australia Gazette 1989, No. S 164).  

The provisions of the Planning and Land Management Act are to be read against the background that the fee simple of land in the Territory remains vested in the Commonwealth, as it has been since 1 January 1911 when the land within the territorial boundaries of the Federal Capital Territory, as it came to be called, was surrendered by the State of New South Wales to the Commonwealth.  The surrender was effected by the Seat of Government Surrender Act, 1909 (NSW): its acceptance by the Commonwealth as a Territory was provided for by the Seat of Government Acceptance Act 1909 (Cth).  So read, the effect of the Planning and Land Management Act is that the Territory may grant lesser estates or interests in so much of the land in the Territory as is not National Land.  The Territory also stands in the shoes of the Commonwealth with respect to estates or interests created by the Commonwealth prior to Self-Government Day in land that is not National Land.  It is to be noted, however, that sub-s 29(1) provides that the responsibility of the Executive for the management of Territory Land is a responsibility to do so "on behalf of the Commonwealth."  

What has been said provides the setting against which the issue arising on the appeal is to be determined. That issue concerns a declaration made on 2 March 1989 under sub-s 27(1) of the Planning and Land Management Act by the Minister of State for Administrative Services acting on behalf of the Minister of State for the Arts and Territories. By that declaration the Minister declared to be National Land a large number of areas of land that were described in the schedule to the declaration.  One of the parcels described in the schedule was the land here in question.  The declaration included a statement that the areas of land described in the schedule were used, or were intended to be used, by or on behalf of the Commonwealth.  The Commonwealth did not contend, either in the Supreme Court or on the appeal, that the land on which Gowrie Private Hotel is erected was, at the date of the declaration, intended to be used by or on behalf of the Commonwealth. The case was conducted on the basis that, on the relevant date, that land was being used by, or on behalf of, the Commonwealth .  

When the declaration was made on 2 March 1989, much of the Self-Government Act had not commenced and the body politic for which s 7 of that Act provided had not come into existence.  Hence, immediately before the declaration, the land in question was neither National Land nor Territory Land and there was not yet in existence an Executive which was capable of exercising responsibility for the management of Territory Land or of granting or otherwise dealing in estates or interests in such land.  On Self-Government Day, land in the Territory which was not National Land became Territory Land and subject to the relevant provisions of the Planning and Land Management Act.  

Soon after the establishment of Canberra as the National Capital, the Commonwealth provided short and long term accommodation for its public servants by the establishment of guest houses.  Public servants coming to the capital could be accommodated reasonably cheaply in guest houses constructed and managed by or for the Commonwealth. The cost of such accommodation to public servants was subsidised by the Commonwealth, a feature which assisted in the recruitment and transfer of public servants from other parts of Australia.  Subject to priority being given to Commonwealth public servants, accommodation in these guest houses was available to members of the public. Guest houses operated by or for the Commonwealth were a feature of the Canberra scene for many years.  

As Canberra grew, the need for guest house accommodation for public servants declined.  This was particularly so in the 1970's and 1980's and the number of guest houses was reduced.  Those that survived became known as hostels or private hotels.  They were promoted by the Commonwealth as providing budget accommodation for visitors to Canberra as well as for public servants.  By 1988, there were only two such institutions remaining, namely Gowrie Private Hotel at Northbourne Avenue, Canberra City with which this case is concerned and Macquarie Private Hotel at Barton. Around the time of the making of the declaration on 2 March 1989 Gowrie Private Hotel, which had over 500 rooms, had approximately 290 occupants of whom about 80 were public servants.  

Gowrie Private Hotel consists of two high rise towers comprising single and twin rooms linked together at ground level by a single storey structure. Service facilities are included in the complex which is surrounded by car and bus parking areas as well as grassed areas.  The evidence does not disclose when the complex was built but it has been used as a Commonwealth hostel since at least 1970.  

It is necessary to refer to the arrangement under which Gowrie Private Hotel and other guest houses in the Territory have been managed for the Commonwealth.  Prior to the incorporation of Commonwealth Hostels Limited the guest houses that then existed were managed by officers of one of the Departments of State.  Commonwealth Hostels Limited was incorporated under the Companies Act 1938 (Vict.) on 13 September 1951 as a company limited by guarantee.  The company was incorporated on the initiative of the Commonwealth Government.  All the members of the company were public servants.  The relationship of the company to the Commonwealth was considered by the High Court in The Commonwealth of Australia v. Bogle (1953) 89 CLR 229 .  

In the 1970's the name of the company was changed to Commonwealth Accommodation and Catering Services Limited.  On a date not disclosed by the evidence the company was converted to a company limited both by shares and by guarantee, the whole of the issued shares being beneficially owned by the Commonwealth.  On 2 May 1989 its name was changed to Advanced Food Systems International Limited.  This followed the sale by the Commonwealth in July 1988 of its shareholding in the company to a joint venture of United Kingdom and United States interests.  

From the time of its incorporation, the company managed many, if not all, of the guest houses operated by the Commonwealth in Canberra as well as other Commonwealth residential institutions elsewhere, such as migrant hostels and migrant flats.  In the directors' report forming part of the company's published accounts for the year ended 30 June 1988, the principal activities of the company during the year were described as -  

"the operation for the Commonwealth of Australia of food services and guest houses for Commonwealth employees, and, on behalf of the Department of Immigration, Local Government and Ethnic Affairs, the management of accommodation, catering and property maintenance services at migrant centres and the management of migrant flats."

 

Towards the end of 1988, a view was taken within the Department of Administrative Services, the relevant Commonwealth department, that the demands of all public servants seeking guest house type accommodation in Canberra could be satisfied at Macquarie Private Hotel and that Gowrie Private Hotel could be sold as a going concern and a lease granted over the land on which it was constructed.  There was, however, uncontroverted evidence before the learned primary Judge that, at the time of the making of the declaration dated 2 March 1989, there had been no decision taken, in principle or otherwise, to sell a lease over the site and that, although the future of the private hotel was under review, the intention of the Commonwealth at the time of the declaration was that Gowrie Private Hotel should remain as a guest house for the long-term accommodation of Commonwealth public servants and short-term accommodation for other people.  

As at the date of the relevant declaration, the relationship between the Commonwealth and the company, then still known as Commonwealth Accommodation and Catering Services Limited, was governed by two documents which interact, and are generally consistent, with each other. One of these documents, which will be referred to as "the CACS contract", takes the form of a contract between the Commonwealth and the company.  It is undated though its effective date of commencement appears to have been 1 July 1985.  The second document, which is described on its cover sheet as "Heads of Agreement", is concerned only with Gowrie Private Hotel and Macquarie Private Hotel and a third property providing guest accommodation known as Brassey House.  The parties are agreed that it constitutes what is described in the CACS contract as Schedule 2 to that contract.  

The CACS contract clearly replaced agreements which had previously been in force between the Commonwealth and the company relating to the provision of services by the company of a like or similar nature to those described in the contract (cl.2.1).  The contract provided (cl.2.2) that, in consideration of certain payments as between the parties and upon the terms and subject to the conditions set out in the contract, the company was to provide services in accordance with terms and conditions provided therein.  Those services related to migrant centres, guest houses, migrant flats and migrant detention centres and food and beverage services at other locations.  In relation to guest houses, cl.2.4.2 provided:   

"The Contractor shall provide accommodation in Guest Houses to a class or classes of persons nominated by the Commonwealth from time to time in preference to any other person and in the order of preference, if any, determined by the Commonwealth."

The references in the CACS contract and in the Heads of Agreement to "the Contractor" are references to the company.  

The CACS contract deals with a variety of matters to which it is unnecessary to refer in detail.  It is sufficient to note that the contract provides for such matters as the responsibility of the company for the various facilities which it is to manage for the Commonwealth (cl.5), the obligation of the company to report to the Commonwealth from time to time (cl.6), the conditions of labour and the payment of wages to the company's staff (cl.8), the keeping by the company and any sub-contractor of proper wages books and time sheets (cl.9), the right of the Commonwealth to inspect such books and sheets and interview employees as to their rates of pay, hours and conditions of employment (cl.9), worker's compensation insurance (cl.12), access by the Commonwealth to the premises where the company is providing services under the contract and to the company's records (cl.13), the circumstances in which the company is to indemnify the Commonwealth (cl.18), arbitration in the event of disagreement (cl.19) and termination of the contract upon default by the company (cl.20).  

The document described as the Heads of Agreement recites that the Commonwealth desires that the guest houses, being Gowrie Private Hotel, Macquarie Private Hotel and Brassey House, should be managed on its behalf and that the company has agreed to undertake their management. Clause 1 provides that the Commonwealth appoints the company to manage the guest houses upon the terms and conditions set out in the Heads of Agreement.  

Clause 3 of the Heads of Agreement provides:   

"3.1

The Commonwealth shall make available to the Contractor certain Guest Houses located in the Australian Capital Territory and referred to in this Schedule and shall make available to the Contractor certain items of equipment listed in Appendixes to this Schedule in respect of each Guest House.

3.2

The Contractor on being informed in writing by the Commonwealth of the class or classes of persons for whom accommodation is required, shall ensure that satisfactory arrangements are made for such accommodation.

3.3

The Contractor shall maintain standards of accommodation and service not inferior to those existing at the date of commencement of this Agreement, unless otherwise agreed by the Commonwealth."

 

The company agreed (cl.6.1) to pay to the Commonwealth by monthly instalments certain annual amounts which are referred to as "rent" in respect of each of the guest houses to which the Heads of Agreement relate.  The company agrees, if it increases tariffs in accordance with the Heads of Agreement, to vary the "rent" payable to the Commonwealth by reference to a prescribed formula (cl.6.1 ).  

The company agrees "to charge and collect tariffs from guests at the rates as determined by the Commonwealth" (cl.8.1).  A formula is prescribed by cl.8.2 in accordance with which the company may vary the tariffs at intervals of not less than six months .  

The company agrees to carry out, at its own cost, all maintenance on the buildings comprising the guest houses, other than what is defined as "major maintenance" (cl.9).  

The company agrees that it will not sub-let, use or cause to be used any part of a guest house for any purpose not consistent with the purpose of the guest house, namely to provide accommodation and meals and to manage the guest house, unless otherwise approved by the Commonwealth (cl.10).  Such approval, if given, is to be in writing and may include such conditions as the Commonwealth sees fit, consistent with the terms and conditions of the Heads of Agreement (cl.10).  

Under provisions contained in both the CACS contract and the Heads of Agreement, the arrangements embodied therein were to remain in force, so far as Gowrie Private Hotel was concerned, until 30 June 1990.  

The primary Judge found, and his findings are not challenged, that Commonwealth public servants are, and have been, given preference in accommodation at Gowrie Private Hotel in two ways.  The first is in being given priority in the allocation of rooms.  The second is that they pay a reduced tariff upon presentation of a statement from their supervisors confirming that they are employed in the Public Service in a particular classification.  The difference between the normal rate and the discounted rate is paid by the Commonwealth.  The particular classifications of public servants entitled to the discount were reduced over a period of three years or so until in 1988 the highest classification entitled to the discount was Administrative Services Officer Class 2.  

Counsel for the appellant submitted that the company operates, and at all material times has operated, Gowrie Private Hotel as a private commercial venture for its own profit, that it conducts its own business, not a business for the Commonwealth, and that, in all the circumstances of the case and according to the proper construction of the relevant statutory provisions, the land on which Gowrie Private Hotel is built was not, at the time of the declaration of that land as National Land, used "by or on behalf of the Commonwealth" within the meaning of sub-s 27(2) of the Planning and Land Management Act.  

Counsel argued that land is only "used" by the Commonwealth within the meaning of that expression in sub-s 27(2) if the land is in actual personal use by the Commonwealth at the relevant date.  The concept is not satisfied, so it was submitted, by merely showing that the land answered the description, at the relevant date, of land that had been made available by the Commonwealth for use by others for a particular purpose which the Commonwealth wished to permit or have pursued. Counsel placed reliance upon the judgment of Stephen J. in Ryde Municipal Council v.  Macquarie University (1978) 139 CLR 633 at p 647 to support the submission that the Commonwealth did not "use" land within the meaning of sub-s 27(2) simply by exercising the incidents of ownership, for example by granting a lease.  Counsel further submitted that, if this proposition were not correct, the power conferred by s 27 of the Planning and Land Management Act to declare land to be National Land would extend to all land in the Territory in respect of which a lease from the Commonwealth was subsisting at the date of the declaration. The section was not intended, so it was argued, to have such a wide spread.  Counsel further argued that sub-s 27(2) does not refer to the purpose being pursued by the use of the land: instead, it focuses attention on the identity of the party making actual personal use of the land.  The correct conclusion upon the material before the Supreme Court was, so it was submitted, that the land in question was at the relevant date being used by the company and not by the Commonwealth.  

Counsel for the respondent submitted that, on 2 March 1989, the land on which Gowrie Private Hotel stands was "used" by the Commonwealth within the meaning of sub-s 27(2), such "use" being for the purpose of providing accommodation for Commonwealth public servants, for the purpose of providing accommodation to members of the public and for the purpose of obtaining a return on the capital invested by the Commonwealth in the premises.  It was submitted that, at any one point of time, land may be "used" by different persons for different purposes. For example, where the owner of land leases it for reward to a lessee for the purpose of the lessee carrying on a business on the land, both the lessor and the lessee could be said to "use" the land, the lessee using it for the purpose of carrying on his business and the lessor using it for the purpose of deriving income.  

Counsel for the respondent argued, in the alternative, that on 2 March 1989 the land in question was being used by the company "on behalf of the Commonwealth", a proposition which was denied by counsel for the appellant.  

It is trite that the words of a statute must be read in their context. The verb "to use" and its derivatives are words whose meaning will depend, to a very great extent, upon the context in which they are employed.  The wide variety of contexts in which the verb appears is graphically illustrated by a perusal of Stroud's Judicial Dictionary, 5th ed., and Words and Phrases Legally Defined, 3rd ed.  However, most of the decided cases which have considered the verb "to use" or its derivatives have done so in a context very different from the context of sub-s 27(2) of the Planning and Land Management Act and are, in consequence, of limited assistance in the present case.  

Many of the authorities describe the verb "to use" as one of wide import: see, for example, Council of the City of Newcastle v. Royal Newcastle Hospital (1957) 96 CLR 493 per Taylor J. at p 515:  Ryde Municipal Council v. Macquarie University (supra) per Gibbs A.C.J. at p 637:  see also what was said by Lord Evershed M.R., speaking for the Court of Appeal, in Shell-Mex and B.P. Limited v. Clayton [1955] 3 All ER 102 at p 117.  His Lordship referred, with obvious approval, to the following statement by Stirling J. in British Motor Syndicate Limited v. Taylor and Son (1900) 1 Ch 577 at p 583:   

"The first meaning assigned to the word 'use' in Johnson's Dictionary is 'to employ to any purpose'; it is, therefore, a word of wide signification."

This is probably as close as one can get to an accurate, albeit broad, definition of the word for presently relevant purposes.  Land may be said to be "used" within the meaning of sub-s 27(2) if it is held or possessed so as to derive revenue, profit or other benefit from it: The Shorter Oxford English Dictionary.  

Not only is "use" a word of wide signification, it is also a word which does not have a precise meaning:  Arbuckle Smith and Co. Limited v. Greenock Corporation [1960] 1 All ER 568 per Lord Radcliffe at p 574. His Lordship added that "in general it conveys the idea of enjoyment derived by the user from the corpus of the object enjoyed".  

A decision which is of assistance in determining the meaning to be ascribed to the word "used" in the context in which it appears in sub-s 27(2) is Ryde Municipal Council v. Macquarie University (supra). That case concerned sub-s 132(1) of the Local Government Act, 1919 (NSW) whereby all land in a municipality was declared to be rateable, the section, however, containing a number of exceptions including:   

"(fii)

Land which is vested in the Macquarie University, or in a college thereof, and is used or occupied by the University or college, as the case may be, solely for the purposes thereof."

 

Parts of a building erected in the grounds of the University were let to tenants who conducted therein with a view to profit retail shops, a travel centre and branches of two banks.  The shops and the banks principally served the convenience of the staff and students of the University, but they were also open to the general public.  It was held by Gibbs A.C.J., Stephen and Murphy JJ., Jacobs and Aickin JJ. dissenting, that the land on which the shops and commercial facilities were conducted was "used" by the University "solely for the purposes thereof" within sub-s 132(1)(fii).  Gibbs A.C.J., after reference to authority, said (at p 643) that land vested in the University may be "used ... solely for the purposes thereof" within par.(fii) "notwithstanding that it is occupied by a tenant holding under a lease." His Honour said (at pp 638-9):   

"A person who owns land may be said to use it for his own purposes notwithstanding that he permits someone else to occupy it, even under a lease.  That is almost beyond argument when the owner's purpose is to acquire income.  In the ordinarily accepted meaning of the word a building is 'used' for the purposes of acquiring income if rents are derived from it, and an owner of premises who leases them is making use of those premises by employing or applying them for the purpose of letting: Commissioner of Income Tax v. Hanover Agencies Ltd [1967] 1 AC 681 at p 689.  But that is not the only way in which an owner of land may use it by letting it to someone else.  An employer who provides premises in which he requires an employee to live so that the employee may perform more efficiently the duties of his position is in my opinion himself using those premises ... Where use, and not occupation, is in question, I can see no reason to disregard the indirect use which an employer makes of a house by providing it as a residence for the use of his employees.  If, for example, a university considered it desirable in its own interests that the vice-chancellor should live in particular premises which the university owned, the university would, in my opinion, use those premises if it made them available as a residence for the vice-chancellor, and this would be so whether the premises were let or occupied under licence."

 

Stephen J., in whose judgment Murphy J. agreed, (at p 647) concluded that the word "used" in the phrase "used ...  by the University ... solely for the purposes thereof" referred not to the active, personal use of the land by the University as the owner of it but to its use by being made available by the University for use by others for a particular purpose.  

Another principle to be derived from the cases, though somewhat obvious, is that where the word "used" appears in a statute in conjunction with the word "occupied", the words are not necessarily synonymous.  As Isaacs J. said in Knowles v. The Council of the Municipality of Newcastle (1909) 9 CLR 534 at p 545 the word "used", in such a context, "probably points to utilization in some other way than merely actual occupancy":  see also Ryde Municipal Council v. Macquarie University (supra) per Aickin J. at pp 658-9.  

The meaning of the word "used" in sub-s 27(2) is significant because it determines the division between the Commonwealth and the Territory of the powers of management of land in the National Capital.  These powers of management are more than mere management of land as that expression is ordinarily understood, as an examination of the relevant provisions of the Planning and Land Management Act, when read together with the other legislation that together established self-government for the Australian Capital Territory, demonstrates.  

For the land on which Gowrie Private Hotel stands to have answered, as at the relevant date, the description of land "used" by the Commonwealth for the purposes of sub-s 27(2), the Commonwealth must be shown to have employed or made use of it for its purposes.  The Commonwealth need not have been the sole user of the land, nor need it have been in occupation of it.  If the true description of the company's interest in the land was that of lessee, that would not necessarily preclude the land being described as land used by the Commonwealth.  Whether the company held the land as tenant or for some lesser estate or interest or as licensee is not a question which it is necessary to decide.  

The primary Judge concluded that the land was, as at 2 March 1989, used by the Commonwealth and that, in consequence, the Minister was entitled to declare it to be National Land.  In our opinion his Honour was, on the basis of the material before him, entirely justified in reaching that conclusion. It is one with which we agree.  

Reference has been made earlier in these reasons to the history concerning the provision by the Commonwealth of guest house accommodation in the National Capital for public servants and others. Having regard to that history and the manner in which the guest houses were operated and managed, first by a Department of State and later by a company which was wholly owned by the Commonwealth, we do not doubt that, if at any time while that situation pertained the question had arisen whether the land on which the guest houses stood answered the description of land used by the Commonwealth, the question would have required an affirmative answer.  We do not find anything in the decision of the High Court in The Commonwealth v. Bogle (supra) to warrant a different conclusion.  The situation was that the Commonwealth at all times retained the right to dictate who should be accommodated in the premises and it was in a position to determine the tariffs that might be charged.  By the requirement that the company pay an annual amount for its use of the premises the Commonwealth obtained a return on the capital it had invested. The company had no right to use the guest houses for any other purpose than the provision of accommodation of those whom it was required or permitted by the Commonwealth to accommodate.  

That was clearly the position so far as Gowrie Private Hotel was concerned at least until July 1988 when the Commonwealth sold its shareholding in the company which had been charged by the Commonwealth with the management of the premises.  But, as appears from the terms of the CACS contract and the Heads of Agreement to which detailed reference has been made, the situation did not differ after that date from what it had been before.  The CACS contract and the Heads of Agreement continued to bind the company to provide accommodation at Gowrie Private Hotel for the class or classes of persons nominated by the Commonwealth from time to time and to require the company to do so in preference to any other person and in the order of preference, if any, determined by the Commonwealth.  The company continued to be obliged to operate the premises only as a guest house or private hotel. Thus the Commonwealth continued to have power to ensure that the premises were used to accommodate those persons whom it wished to have accommodated there, whether they be public servants, tourists or other members of the public.  The circumstance that the company operated its own business on the site for the purpose of earning profit does not, in our opinion, deny the fact that the land was at the critical date used by the Commonwealth in the relevant sense.  

The question whether the land was used by the Commonwealth is to be answered as at 2 March 1989.  Just as it is not necessary, in order to give an affirmative answer to that question, to show that the Commonwealth intended as at that date that the land should continue to be used by it after that date, it is equally irrelevant to take into account in answering the question that the Commonwealth may, at the relevant date, have intended that at some time in the future it should cease to use the land either for the purpose for which it was then being used or for any other purpose.  The question is simply one of fact:  Was the land being used by the Commonwealth on the date the declaration under sub-s 27(2) was made?  

The matters to which reference has been made lead us to the clear conclusion that the land on which Gowrie Private Hotel stands was validly declared by the Minister to be National Land on the basis that at the relevant date the land was being used by the Commonwealth.  In the light of that conclusion it is unnecessary to consider whether it can properly be said that at the relevant date the land was being used by the company "on behalf of the Commonwealth".

The appeal is dismissed with costs.