Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW

1. [1]

   These are charitable trust proceedings. They concern a sum of money (more than $20 million in 2012) built up over the years from the operation of the Anglican burial ground at Sydney’s Rookwood Cemetery. The Cemetery (which was historically referred to as “the Necropolis” and then as the “Rookwood Necropolis”) was established in the 1860s. It is the largest cemetery in the Southern Hemisphere and still accounts for about 30% of Sydney’s burials.

2. [2]

   The Cemetery is, and always has been, divided into different burial grounds for the use of different religious denominations. There is also a “General” burial ground for non-denominational burials. In the past, each burial ground had its own management structure and its own separate finances.

3. [3]

   The questions which have led to these proceedings arise out of a change in the way in which the State Government regulates the Cemetery. Originally, the Cemetery was governed by its own Act of Parliament. There was a separate trustee body for each burial ground. Common facilities were managed by a joint committee made up of representatives of each group of trustees.

4. [4]

   The Act was amended and re-enacted over time until it was finally repealed in 2009. In 2012, the trustee bodies of five of the Cemetery’s burial grounds were amalgamated (this did not include the Catholic burial ground, which maintained its own separate management body). Later legislation had the effect of formally converting the Cemetery into Crown land and abolishing any trusts over it.

5. [5]

   The questions in these proceedings have arisen because the legislation made no provision (or, at least, no express provision) about the ownership and use of the moneys and other assets accumulated as a result of the operation of the affected portions of the Cemetery. The issue posed by these proceedings is what legal regime applies to those moneys and other assets.

6. [6]

   The plaintiff (“the Manager”) is the successor of the trustee body formed by the amalgamation in 2012. It continues to manage the relevant portions of the Cemetery and it continues to hold the moneys and other assets originally built up by the five predecessor trustee bodies.

7. [7]

   These proceedings only concern the moneys, and other assets, derived from the Anglican portion of the Cemetery. I will refer to those moneys and other assets as the “Anglican Cemetery Proceeds” in this judgment. Likewise, I will refer to the Anglican portion of the Cemetery as the “Anglican Cemetery Land”.

Issues for determination

1. [8]

   The proceedings were initially constituted as judicial advice proceedings. But, when it became clear that declarations were to be sought as to the charitable status (or otherwise) of the Anglican Cemetery Proceeds, I thought that the proceedings should continue as inter partes proceedings. The Attorney-General was then joined as the defendant.

2. [9]

   The first question to be determined is the trust status of the Anglican Cemetery Proceeds. Although the Cemetery has always been regulated by statute, the Manager’s contention is that the effect of the former Act of Parliament was to subject the Anglican Cemetery Land, and the Proceeds derived from it, to a charitable trust enforceable in equity. So far as the Land is concerned, that trust has been extinguished; but it continues, according to the Manager’s contention, to apply to the Proceeds. The Attorney-General takes the same view. Nevertheless, both parties accept that the Court must be persuaded that this agreed view is correct.

3. [10]

   If the Court is satisfied that the Anglican Cemetery Proceeds are held under the terms of a charitable trust, questions arise as to how they should be managed in future. In particular, the Manager has pooled the assets of the five amalgamated trust bodies so that the Anglican Cemetery Proceeds are no longer held separately. And it is now proposed to consolidate the management and operation of the five portions of the Cemetery, including the Anglican portion, and the associated assets and liabilities, into a broader management body which will be responsible for Crown cemeteries throughout New South Wales. The Manager has proposed a series of questions upon which judicial advice is sought.

Chronology

1. [11]

   The question of the charitable status of the Anglican Cemetery Proceeds is essentially one of construction of various statutory provisions and statutory instruments. There are no factual issues to be resolved. Some historical evidence was tendered about the operations of the Rookwood Cemetery, and the Anglican portion of it in particular. None of this was the subject of any contest.

2. [12]

   Earlier this year, Leeming JA, when sitting at first instance in the Common Law Division, had to consider the history of Old Dubbo Cemetery, which was established in the 1870s: Carr v Carr [2022] NSWSC 166. In preparing his judgment, his Honour made use of a University of Sydney PhD thesis authored by Lisa Anne Murray. Dr Murray’s thesis was published in August 2001 and is entitled “Cemeteries in Nineteenth-Century New South Wales: Landscapes of Memory and Identity” (Permalink http://hdl.handle.net/2123/16784). It is clearly the product of extensive historical research into the establishment of cemeteries in colonial New South Wales.

3. [13]

   Although the thesis was not in evidence before his Honour, his Honour considered that he could take judicial notice of the fruit of Dr Murray’s historical research: see Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196. In the present case, I propose to take the same approach. Dr Murray’s description of events is consistent with, but provides more detail than, the historical material which is before me. While it may not necessarily be essential on any particular issue, it provides useful background to the discussion. As I will not be making any substantive orders when I hand down this judgment, if either party has any objection to the use I have made of Dr Murray’s thesis, I will consider that objection before proceeding further.

4. [14]

   The legal issues raised in these proceedings concern the potential application of the Court’s charitable trust jurisdiction to land, and the proceeds of the use of land, held for the purpose of operating a public cemetery. In this part of the judgment, I provide a chronological summary of the relevant legislation by way of background. I then deal with the development of the Cemetery before setting out the facts about the Anglican portion.

5. [15]

   In dealing with the legislation, it is convenient to begin with the prerogative powers and legislation applying to Crown lands generally. I will then turn to cemeteries in particular. I deal first with the use of Crown land for cemeteries under the prerogative-based system which operated until 1861. Next I deal with the bespoke legislation which governed Rookwood Cemetery from 1867 to 2009 and then other State cemetery legislation.

6. [16]

   In his judgment in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 (the Randwick Racecourse case) Windeyer J described (at 71-77) the way in which the setting aside and use of Crown lands for public purposes developed in New South Wales following settlement. Other historical analyses may be found in the joint judgment of Gaudron, McHugh, Gummow, Hayne and Callinan JJ in the Bathurst City Council case (Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566) at [58]-[59], and in the judgment of Gageler J in the Berrima Gaol case (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232) at [101]-[136].

7. [17]

   Royal prerogative: From settlement, all lands in the Colony were, until alienated, vested in the Crown. The Governor was authorised to make grants of land on the Crown’s behalf. Instructions given to the Governor also required him to reserve, out of the lands available for alienation, sufficient lands for public purposes. The instructions contained a list of those purposes, a representative example being quoted by Windeyer J in the Randwick Racecourse case at 71-2.

8. [18]

   Lands reserved for public purposes in this way remained in the ownership, and under the control, of the Crown. No formal conveyancing steps were required; arrangements for the management and use of the land and its revenue could be made, and altered, by executive action. But the Governors also made some specific grants of land to trustees for public purposes. Examples include the grants to the Clergy and School Lands Corporation referred to at [33]-[42] below. Other examples are given by Windeyer J in the Randwick Racecourse case at 74.

9. [19]

   In reserving lands for public use, and in making grants, the Governors were acting under authority from the Crown in right of the United Kingdom (or, the “Imperial Crown”). Legislative authority over such lands and supervision of the exercise of the prerogative remained with the Imperial Parliament in London.

10. [20]

    That authority was exercised in the Australian Colonies Waste Lands Act 1842, 5 & 6 Vict, c 36 (Imp) (“1842 Waste Lands Act”). That Act was passed in order to regulate, and restrict, future grants of land. The background to its enactment appears to have been the adoption of a policy, starting in the 1830s, that surplus Crown land be sold off to settlers on the open market rather than allocated by the Governors on a discretionary basis (see Windeyer J in the Randwick Racecourse case at 72-3).

11. [21]

    For the purposes of the Act, “waste lands” were defined as lands which had not already been granted, or contracted to be granted, or “dedicated and set apart for some public use” (s 23). And s 3 provided, so far as future grants were concerned, that nothing should prevent the Crown from excepting from sale such lands as might be required for a list of specified public purposes, or from reserving those lands to itself or disposing of them in such manner as the Crown, acting in the public interest, might see fit.

12. [22]

    Constitution Statute 1855 (Imp): One of the issues involved in the sometimes fractious debate between Sydney and London about responsible government was control over “waste lands”: see Anne Twomey, The Constitution of New South Wales (The Federation Press, 2004) at 4 ff. This was addressed in s 2 of the Constitution Statute 1855 (Imp) (or, as it is otherwise known, the New South Wales Constitution Act 1855, 18 & 19 Vict, c 54 (Imp)). That section provided that “the entire management and control of the waste lands belonging to the Crown” and the appropriation of revenue derived from those lands, were to pass to the Colonial Parliament. The term “waste lands” was not defined in the Act, and, as will be seen below, there was later some debate about its scope.

13. [23]

    Public Parks Act 1854: Meanwhile, the Governor and Legislative Council had enacted the Public Parks Act 1854. That Act provided for the management of public parklands by boards of trustees. It was to apply both to parklands under existing grants and parklands to be established in the future.

14. [24]

    Section 1 applied to the trustees of any lands the subject of an existing grant from the Governor “for the purpose of recreation convenience health and enjoyment” of inhabitants of the Colony. Such trustees were constituted as a body corporate, with perpetual succession, having the right to sue and be sued in their corporate name, and having the capability of holding the relevant land in trust in perpetuity for the purposes for which the land had been granted.

15. [25]

    Section 2 dealt with the future establishment of public parklands. The Governor was empowered to appoint a board of trustees of any lands dedicated (whether previously or subsequently) for the relevant purpose, whereupon the provisions of s 1 would apply without the need for any grant.

16. [26]

    The Act gave the Governor a power to appoint a replacement if any trustee were to die, resign, refuse to act, become incapable of acting, or be absent from the Colony for more than twelve months (s 3). There was no power (or, at least, no express power) of removal. The trustees were otherwise permitted to regulate their own internal affairs such as meetings (s 4).

17. [27]

    The Act conferred on the trustees “the powers of absolute owners (except for the purposes of alienation)” over the relevant land (s 5). The Act contained no other limitation on the trustees’ powers or prescription on the way in which the land was to be managed.

18. [28]

    The Act also gave the trustees power to make rules and regulations for regulating the “use and enjoyment” of the land. That power specifically extended to protecting the plant life on the land and the removal of trespassers. The trustees were also empowered to impose fines for breach of the rules and regulations. All of this was subject to approval by the Governor and Executive Council (s 5). The police force was to assist the trustees by removing trespassers and other troublemakers from the land (s 6). Proceedings for the recovery of fines could be taken by the trustees, and moneys recovered were to be paid to the trustees “for the purposes of their trust” (or, where the recovery proceedings were brought by anyone else, the trustees were to receive half): s 7.

19. [29]

    Crown Lands Alienation Act 1861 (“1861 Crown Lands Act”): This Act was the first general Colonial legislation on the alienation of Crown lands for public purposes. The Act applied to all Crown lands which were not the subject of a dedication, grant, or contract for a grant. Such lands could not be alienated except under the provisions of the Act (s 3).

20. [30]

    Section 5 created a system whereby land could be formally set aside for public purposes, by executive action, in the form of a notice or proclamation published by the Governor, with the advice of the Executive Council, in the Government Gazette. This set a pattern for future legislation, and, for simplicity, in the rest of this judgment I will refer to the process as one of the Governor publishing such a notice or proclamation. I will similarly refer to powers of management over Crown land conferred by statute on the Governor and the Executive Council as powers conferred on the Governor.

21. [31]

    Section 5 provided that the Governor might, by notice, “reserve or dedicate” Crown land for a specified public purpose. Upon publication, the lands would “become and be” so reserved or dedicated to that purpose. They might then be the subject of a grant for that purpose in fee simple. Section 5 contained a list of the permissible public purposes, which were similar to those contained in the Governor’s instructions and the reservation provisions of the 1842 Waste Lands Act.

22. [32]

    The term “dedication” was, at common law, confined to public roads. But, in the context of the Act and its predecessors, the term clearly had a wider meaning: namely, the devotion of land to a public purpose in a way which was binding on all, including the Executive. But the Act also spoke of “reservation” and this introduced uncertainty. Originally, the reservation of land had simply referred to keeping the land back so that it would not be sold. But “reservation” in the Act seemed to refer to a process akin to dedication (see Windeyer J in the Randwick Racecourse case, 102 CLR at 77). As we will see, in the end, the language of reservation seems, perhaps confusingly given its origins, to have taken over the field.

23. [33]

    Clergy and School Lands Corporation case: The Clergy and School Lands Corporation was established in 1826 by way of charter, issued as letters patent under the public seal of the Colony, in accordance with instructions given to the Governor. It was a corporation aggregate, consisting of a body of individual trustees, but with corporate status, including the right to sue and perpetual succession. Its official corporate name was the “Trustees of the Clergy and School Lands in the Colony of New South Wales”.

24. [34]

    The Corporation was established as a vehicle for holding and administering land for religious and educational purposes in New South Wales. Grants were thereafter made by the Governor to the Corporation on terms that the land would be used and administered in accordance with the terms of the letters patent. The lands were not directly used for religious or education purposes. Rather, they functioned as a glebe: they were rented out so as to produce income which could be applied to those purposes.

25. [35]

    The charter contained express provision for the Corporation to be dissolved if that were considered “expedient”. On this happening, any lands vested in the corporation would vest in the Crown, subject to any mortgages or contracts for the sale thereof, to be held, applied, and disposed of in such manner as should “appear most conducive to the maintenance and promotion of religion and the education of youth in the Colony”.

26. [36]

    The Corporation was duly dissolved by letters patent in 1833. Following the dissolution, the income from the lands, which had now revested in the Crown, was paid to the Colonial Treasurer. The Treasurer held the moneys apart from Consolidated Revenue of the Colony and paid the income to church (and presumably educational) bodies. This was done under the instructions of the Secretary for State for the Colonies in London. It was considered, consistently with the then constitutional position, that the lands, and the income derived from them, was held by the Crown of the United Kingdom.

27. [37]

    In 1864, following the coming of responsible government, this arrangement was challenged by the Attorney-General, acting on behalf of the Colonial Executive. The questions raised were referred for determination by the Full Court of the Supreme Court of New South Wales (Attorney-General (NSW) v Eagar (1864) 3 SCR (NSW) 234).

28. [38]

    The Attorney-General argued that the effect of the land revesting in the Crown in 1833 had been to return it to the status of “waste lands” which might be disposed of by the Executive as it saw fit. As “waste lands”, those lands had passed under the control, both executive and legislative, of the Colony. This argument was rejected by the Court. The Court held that the lands formerly held by the Corporation were not “waste lands”, and the revenue from them did not form part of Consolidated Revenue. Rather, the lands, and the income from them, were held by the Crown (presumably, the Crown in right of the United Kingdom) on trust for religious and educational purposes.

29. [39]

    Stephen CJ gave the leading judgment. The other members of the Full Court reasoned similarly.

30. [40]

    His Honour accepted that the charter, taken on its own, merely provided for the incorporation of the Trustees as a body corporate; it did not of itself impose any trust obligations on the land. But the grants did, by providing that the land was to be held by the Trustees for the purposes referred to in the charter.

31. [41]

    In his Honour’s view, the effect was to create a charitable trust of the type enforceable in equity, and, upon the land being revested in the Crown, the Crown became trustee of that land in exactly the same way a subject would have. The purposes were widely defined, but this was permissible. His Honour cited already longstanding authority for the proposition that the court would not permit property, once dedicated to charitable purposes, to be applied to other purposes.

32. [42]

    Because of this, it followed, in his Honour’s view, that the lands in question were not “waste lands” for the purposes of the 1842 Waste Lands Act. Nor were they “waste lands” for the purposes of the Constitution Statute 1855 (see at 260). Thus, it seemed, they fell outside both the control of the Colonial Executive and the authority of the Colonial Parliament.

33. [43]

    Crown Lands Act 1884 (“1884 Crown Lands Act”): This Act replaced several statutes, including the 1861 Act. It adopted the same basic structure as the repealed Act. Crown land could only be alienated in accordance with its terms (s 5). The new Act also carried forward the provisions allowing the Governor to dedicate or reserve land for specified public purposes by issuing a formal notice to that effect (s 104).

34. [44]

    But, in a new departure, s 105 provided for a dedication or reservation to be rededicated to other purposes. This was done by the publication of a proposal for rededication in the Gazette, which was then laid before Parliament. If not disallowed by Parliament, the Governor was entitled to proceed by proclaiming such revocation or fresh dedication or reservation, and carrying out such conveyancing steps, as were necessary to give effect to the proposal.

35. [45]

    Section 105 specified various circumstances where the power could be exercised. These were where (in the Governor’s opinion):

36. [46]

    The Governor was also, by s 106, empowered to appoint a board of individuals as trustees “charged with the care and management” of Crown land that had been dedicated or reserved pursuant to the Act. This power was somewhat wider in its terms than the equivalent power under the Public Parks Act 1854. The Governor might issue a grant to the trustees conferring such estate, and such powers, on them as he might think fit. The Governor was empowered to remove and replace any trustees (whether appointed under the Act “or otherwise”) as well as to fill vacancies. Alternatively, the Governor could, “without placing [the] land in trust”, make rules and regulations for its “management and control”. Those rules and regulations might impose fines up to a statutory limit and were to have the force of law.

37. [47]

    Public Parks Acts 1884, 1902 and 1912: The Public Parks Act 1854 was replaced by the Public Parks Act 1884. That Act substantially had the same application as the former Act and worked in the same way, except that the Governor was empowered to appoint a local Council as a trustee of the land in question, rather than a board of individual trustees (s 5). The Act also dealt specifically in s 6 with the “estate” conferred on trustees under the Act:

38. [48]

    Substantially the same provisions were carried forward when the Act was repealed and replaced by the Public Parks Act 1902, and again when that Act was repealed and replaced by the Public Parks Act 1912. In the rest of this judgment, I will refer to the 1854, 1884, 1902 and 1912 Acts collectively as the “Public Parks Act”.

39. [49]

    Public Trusts Act 1897: By the turn of the century, land dedicated or reserved under the Crown Lands Act was still not, apart from the terms of any consequent grant which might have been made, the subject of any detailed statutory regulation so far as its management, and the use of funds derived from it, were concerned. The 1861 Act did not address this subject at all and the 1884 Act hardly touched it either (apart from the Governor’s regulation-making power).

40. [50]

    This situation led to the enactment of the Public Trusts Act 1897. As the second reading speech (New South Wales, Parliamentary Debates, Legislative Assembly, 26 May 1897, 667 (Mr Carruthers)) records:

41. [51]

    The Act applied to land dedicated, reserved, or “set apart”, both before and after the date of commencement of the Act, “for any public purpose, under any Act”. It therefore applied to land under the Crown Lands Act and the Public Parks Act. The Governor was empowered, by notice published in the Gazette, to vest such land in trustees, for such estate and subject to such terms and conditions as the Governor should think fit (s 3).

42. [52]

    Natural or corporate persons, or a local Council, could be appointed trustee(s) of land falling within the purview of the Act. Any trustees to whom the Public Trusts Act applied were subjected to specified obligations to the responsible Minister. These included: an obligation regularly to report to the Minister about the management of the land (s 5); an obligation to permit inspection of books and documents by the Minister or an authorised delegate (s 6); and an obligation to permit inspection of the land by the Minister or an authorised delegate (s 9).

43. [53]

    The Act appears not to have extended to trusts of land consequent upon grant (that is, a grant that was not preceded by a dedication or reservation under the Crown Lands Act or the Public Parks Act). Private trustees holding under a non-statutory grant, accordingly, fell outside of the Act’s ambit.

44. [54]

    Government House case: This case arose out of a political controversy about the use of Government House in Sydney. Government House had been built in the 1840s in part of the Domain reserved by Governor Macquarie. In 1900, pursuant to arrangements between the New South Wales Government and the Commonwealth Government, the Governor moved out and Government House was used as the Sydney residence for the Governor-General. This arrangement ceased in 1912. The Premier thereupon announced that the use of the land (or at least part of it) would change. The grounds were thrown open to use by the public and plans were made for the stables to be converted into the Conservatorium of Music.

45. [55]

    Relator proceedings were brought to challenge these actions. This Court held (Attorney-General (NSW) v Williams (1913) 13 SR (NSW) 295) that the Government House land was dedicated to a public purpose, namely the provision of a residence for the Governor. Use for other purposes by the Executive was thus held to be unlawful.

46. [56]

    On appeal, the High Court overturned that decision (Williams v Attorney-General (NSW) (1913) 16 CLR 404). It was argued, based on Attorney-General (NSW) v Eagar that, although there had been no formal grant or dedication, in substance the lands had been dedicated to a public use and were in effect the subject of a charitable trust. This argument was rejected by the Court. The Court noted that, if indeed the land had been dedicated to the public purpose alleged, that would have been a public purpose of the Crown in right of the United Kingdom, which was not represented in the proceedings. But, in any event, the actions of the Colonial Government amounted to nothing more than making arrangements to use the land as it saw fit. No dedication had taken place and no trust had been established.

47. [57]

    Furthermore, the Court ruled that the land in question formed part of the “waste lands” which had passed to the control of the Colonial Executive with the coming of responsible government. As Barton ACJ explained, the phrase “waste lands” was broader in the 1842 Waste Lands Act than in the Constitution Statute 1855 (see at 425-7). In the latter, “waste lands” was confined to lands of which the Crown had become owner “and had not made the subject of any proprietary right on the part of any citizen”. Finally, even if the lands were not “waste lands”, the Court held that they did not fall outside of the legislative competence of the Colonial (now State) Parliament.

48. [58]

    An appeal to the Privy Council was dismissed: Attorney-General (NSW) v Williams (1915) 19 CLR 343. The dismissal was primarily on procedural grounds, though the Board expressed support for the view that the use of the land had been “more consistent with a bare temporary permission or a revocable licence” than a dedication, and, accordingly, were “in entire accord with the High Court … in thinking that no such case was made out and that no trust was declared and no charity established” (at 346).

49. [59]

    Crown Lands Consolidation Act 1913 (“1913 Crown Lands Act”): This Act replaced the 1884 Act. As with its predecessor, it prohibited the alienation of Crown land except in accordance with its provisions (s 6).

50. [60]

    The Act carried forward from its predecessor provisions empowering the Governor, by proclamation, to dedicate land for specified public purposes and to grant the land in fee simple accordingly (s 24), and to revoke dedications previously made (s 25). It was specifically provided that a dedication could be revoked notwithstanding that the land in question might have been the subject of a grant. The effect of revocation, where the land was not re-dedicated for another purpose, was to revest the land in the Crown. This made it clear that the dedication could be revoked without the need to rededicate the land to some other public purpose.

51. [61]

    So far as management of the land was concerned, s 26 of the Act carried forward the provisions of its predecessor which empowered the Governor to appoint a board of trustees or make rules and regulations governing the land without placing it in trust. The Act did not disturb the Public Trusts Act, which continued to operate alongside it. Nor did the Act affect the Public Parks Act.

52. [62]

    Garden Island case: Garden Island in Sydney Harbour had been Crown land which was dedicated as a naval depot in 1865-1866 under the 1861 Act. It was used by the Government of the United Kingdom for the purposes of the Royal Navy. In 1913, following the establishment of the Royal Australian Navy, the United Kingdom Government handed over control to the Commonwealth Government.

53. [63]

    In 1923, the New South Wales Government decided to resume legal control of the island. A formal notice of revocation of the 1865-1866 dedications was published under s 25 of the 1913 Crown Lands Act.

54. [64]

    The Commonwealth contested the validity of the revocation. Among other things, it was said that the dedication had been a dedication in perpetuity. The State brought ejectment proceedings in the High Court (New South Wales v Commonwealth (1926) 38 CLR 74).

55. [65]

    The Commonwealth’s argument was rejected by the majority of the High Court (Knox CJ, Gavan Duffy, Rich and Starke JJ). The majority held (at 83, citations omitted):

56. [66]

    Crown Lands and Other Acts (Reserves) Amendment Act 1974 (“1974 Crown Lands Act”): This Act inserted into the 1913 Act a new Part 3B which replaced the existing s 26 with comprehensive provisions for the management of land devoted to public purposes. It covered not only land dedicated or reserved under Crown Lands legislation (including the Public Trusts Act), but also lands managed by trustees under the Public Parks Act. The latter two Acts were repealed.

57. [67]

    For the purposes of Part 3B, land which was so held was defined as a “reserve” (s 37M(1)). Each reserve was to be managed by a group of individuals as trustees. The management provisions of Part 3B were similar in outline to those in the Public Parks Act and the Public Trusts Act, but generally more prescriptive and more detailed.

58. [68]

    As in the predecessor legislation, s 37R charged the trustees with the “care, control and management of the reserve”. To this end, s 37T obliged the trustees to furnish at prescribed intervals financial statements arising from the management of the reserve. Section 37CC conferred on the Minister or an authorised delegate a power of inspection of a reserve. New provisions empowered the Minister to cause a plan of management to be prepared with respect to any reserve (s 37U(1)); the trustees were then obliged to carry it out (s 37U(8)).

59. [69]

    Once more, provision was made for the creation of by-laws by the Governor. Section 37II empowered the Governor to make by-laws with respect to a wide number of matters relevant to the administration and maintenance of a reserve. Those matters included by-laws regulating: “the care, control and management of any reserve” (s 37II(1)(a)); the operation of trustees’ meetings (s 37II(1)(c)); the preservation of a reserve’s environs (ss 37II(1)(h)-(m)); the imposition of charges on entry onto a reserve (s 37II(1)(n)); and the appointment and removal of rangers (s 37II(1)(r)). Any money recovered from an offender following prosecution for a breach of by-law was to be paid to the reserve’s trustees for “the purposes of their trust” (s 37II(5)).

60. [70]

    Section 37O empowered the Minister of appoint a board of no less than three individuals as trustees of a reserve, and thereafter to fill any vacancies. Individual trustees could not be more than 70 years old. By s 37Q, the Minister could declare the trustees to be a corporation. Alternatively, the Minister might appoint a council or any other corporation as the trustee of the reserve (s 37P).

61. [71]

    A trustee’s office was to be vacated automatically in certain circumstances, including, in the case of an individual, on attaining the age of 70 (s 37S(1)(f)). The Minister had overarching power to remove any trustee “for any cause which to the Minister seems sufficient” (s 37S(3)).

62. [72]

    Section 37X dealt with the estate of the trustees. Subsection (1) provided that, except that to the extent that they might already have an estate in fee simple in the reserve, the trustees would be deemed to have such an estate, but for the purposes only of Part 3B and of any by-law. Subsection (2) provided that the trustees were not capable of alienating, charging, leasing or licensing the reserve or any part of it, except in accordance with Division 3 (see below). A trustee’s estate would be divested on the trustee’s removal or upon the revocation on the setting apart, dedication or reservation of the reserve (subsections (3) and (4)).

63. [73]

    Subsection (1) thus expressly recognised that the trustees of a reserve might already have an estate in fee simple in the land. No doubt this reflected the fact that reserves under the 1913 Act and its predecessors might have been the subject of a grant. Land under the Public Parks Act might also have been the subject of a grant, whether originally alienated before or after 1854. But while subsection (1) left the trustees’ estate under a grant undisturbed, subsections (2), (3) and (4) applied to any trustees, whether holding under a grant or not. Thus such trustees’ estates were subjected to the provisions of the Act.

64. [74]

    Section 37VV dealt with the transfer of other assets and liabilities consequent upon the appointment and removal of trustees. Subsection (2) provided, where a group of individual trustees was appointed under s 37O, or a corporate trustee was appointed under s 37P, for the automatic transfer of the assets and liabilities of any existing trustees to the newly appointed trustee body. The subsection made equivalent provision in the case of the incorporation of a group of individual trustees as a body corporate under s 37Q. Where one of a group of trustees holding office under s 37O was removed, there was an equivalent provision for the transfer of the assets and liabilities of the previous group of trustees to the new group. But subs (8) provided that where a former trustee of the reserve would otherwise be personally liable for breach of trust for which that trustee would have had no right of indemnity for any of the funds of the reserve’s trustees, nothing in s 37VV took away that trustee’s personal liability nor imposed it on any other person.

65. [75]

    Division 3 of Part 3B dealt with sales, mortgages, leases and other dispositions of reserve land. Sections 37KK and 37MM provided that the trustees had power to enter into such transactions with the consent of the Minister, in accordance with the terms of that consent, and not otherwise.

66. [76]

    Section 37PP provided that the proceeds of a transaction under the Division were to be held by the trustees after the payment of costs, expenses and encumbrances, for the “general purposes of the trust”. But this was subject to any direction the Minister might give as to the application of the proceeds.

67. [77]

    It was also expressly recognised for the purposes of Division 3 that the reserve land might be held under a grant. Section 37JJ(4) provided that the powers of trustees and of the Minister under Division 3 were not affected by anything contained in any grant previously issued for the reserve. Section 37QQ provided that lands conveyed pursuant to Division 3 were to vest in the recipient free from any trust.

68. [78]

    In 1964, s 24 of the 1913 Act had been amended so as to empower the Minister, by notification, to amalgamate one parcel of dedicated Crown land with another (Crown Lands (Amendment) Act 1964 s 7). The effect of such an amalgamation was that the land being amalgamated was to be governed by the dedication, and the terms of any grant, applying to the other land.

69. [79]

    The effect of such an amalgamation was also dealt with by s 37VV of the 1913 Act. The assets and liabilities of the reserve trust whose land was being amalgamated were transferred to the receiving reserve trust. Where part only of the land held by a reserve trust was being amalgamated, the donor trust and the recipient trust were to apportion the assets and liabilities of the donor trust by agreement; to the extent agreement could not be reached, the apportionment was to be determined by the Minster (see subss (2), (3), (5)).

70. [80]

    The 1913 Act still permitted lands dedicated under s 24 to be the subject of a subsequent grant in fee simple. This practice appears to have fallen into disuse. Section 24 had by 1985 been amended to remove reference to it.

71. [81]

    Crown Lands Act 1989 (“1989 Crown Land Act”): This Act repealed and replaced the 1913 Act, including the 1974 amendments which had swept up the Public Trusts Act 1897 and the Public Parks Act. The prohibition in the predecessor Act on dealing with land within the purview of the Act except in accordance with its terms was carried forward by s 6.

72. [82]

    Part 5 of the 1989 Act dealt with the process of dedication of Crown lands, and the management of such lands. The dedication provisions largely reflected the provisions of the 1913 Act. In particular, they provided for dedication by Ministerial notification (s 80); amalgamation of dedicated land into other dedicated land (s 83); and revocation of dedications, resulting, if there were no rededication, in the land revesting in the Crown (s 84). Assets and liabilities associated with the reserve trust whose land was being amalgamated were transferred to the recipient reserve trust in the same manner as under s 37VV of the 1913 Act (s 125).

73. [83]

    The 1989 Act did, however, make substantial changes to the trusteeship provisions of the 1913 Act. The practice of appointing natural persons as trustees of dedicated or reserved land was discontinued. Instead, s 92 of the Act provided that such land was to be managed by a “reserve trust” appointed by the Minister. A reserve trust could be managed: pursuant to section 93 of the 1989 Act, by a “trust board” of between 3-7 persons; pursuant to s 95(1)(b) or section 95(1)(c), by a corporation; or, pursuant to s 95(1)(a), by a local Council. Any such reserve trust could be dissolved by the Minister upon publication of a notification to that effect in the Gazette (s 92(3)).

74. [84]

    Where a reserve trust had no members appointed to its trust board, or where a corporation had vacated its office as manager of a reserve trust, the Minister was empowered to appoint an administrator to the reserve trust (s 117(a)-(b)). Any administrator so appointed was tasked with managing the trust’s affairs for so long as the appointment continued (s 118).

75. [85]

    Section 100 carried forward the qualifications attached to the estate held by trustees in dedicated land. As with its predecessor, the Act recognised the possibility that land subject to its provisions might have been the subject of a grant. Section 99(2), however, went further, by providing that nothing in a Crown grant should affect the powers of the Minister or the trustee of the reserve (cf s 37JJ(4) of the former Act (see [77] above), which was limited to dealings).

76. [86]

    The 1989 Act also prescribed the manner in which money received during the course of managing dedicated or reserved land was to be applied (previously dealt with by s 37PP of the 1913 Act). But s 106 of the 1989 Act expanded upon the previous version of this section by empowering the Minister to direct a transfer of a reserve trust’s assets to a different reserve trust or to the Consolidated Fund.

77. [87]

    Section 107 of the 1989 Act also seems to have had its origin in s 37PP of the 1913 Act. Section 107 empowered the Minister to make directions as to the application of a reserve trust’s income and revenue toward the “gradual extinction of any debt” (s 107(1)). Any such direction was binding on the reserve trust’s managers (s 107(2)). It also empowered a reserve trust, in the absence of a ministerial direction as to the application of income, to invest its funds “as authorised by” the Trustee Act 1925 (s 107(3)).

78. [88]

    Section 112 again empowered the Minister to make a plan of management for a “reserve”; and section 114 again obliged a trustee to adhere to any such plan of management. Obligations were placed on the managers of a reserve trust to report regularly to the Minister on the financial affairs of the reserve trust (s 122(1)-(3)). A correlative right was conferred upon the Minister and his or her authorised delegates to inspect a reserve trust’s books and to audit the records of the reserve trust (s 123(1)-(3)). The Governor’s power to make by-laws with respect to the matters previously enumerated in s 37II of the 1913 Act was carried forward by s 128 of the 1989 Act.

79. [89]

    Upon the 1989 Act coming into force, all trustees of reserves had to be corporate reserve trusts under the Act. The transitional provisions (Sch 8, cll 4-6) dealt with this in a way which was analogous to s 37VV of the former Act (see [74] above). On the commencement of Part 5, a reserve trust was taken to have been constituted for each reserve. The land and any other property held by the former trustees was transferred, by means of the deemed application of s 125, to the new reserve trust. The transfer was subject to “such modifications” as might be necessary or as the Minister might direct. Later, s 111A was inserted into the Act to give the same effect as between a reserve trust dissolved under s 92(3) and the reserve trust which replaced it.

80. [90]

    Crown Land Management Act 2016 (“2016 Crown Lands Act”): This Act repealed and replaced the 1989 Act. The new Act makes a further structural change to the Crown land system. Instead of reserve land being vested in, and managed by, a reserve trust, the land is now vested directly in the Crown and managed by a “statutory land manager”. Like the former reserve trusts, statutory land managers under the Act are corporate bodies which may be internally administered in a variety of ways according to the method selected by the Minister (s 3.3).

81. [91]

    Like its predecessor legislation, the Act recognises that it might apply to land which had originally been the subject of a grant. But, rather than simply providing that the grant should not limit the powers of the Minister, as in s 99 of the 1989 Act, the 2016 Act provides that, upon land becoming Crown land to which the Act applied, it is “freed and discharged from all estates, interests, trusts or obligations” (s 1.10(2)). The extinguishment is subject to some exceptions, but relevantly only those contained in dedications or reservations of the land, or estates, interests, trusts, or obligations continued over the land by the provision or declaration under which the land became Crown land (subparagraphs (c) and (d) of s 1.10(3)).

82. [92]

    Under the transitional provisions, from the commencement date of the 2016 Act (1 July 2018) all land held by reserve trusts constituted under s 92(1) of the 1989 Act became Crown land for the purposes of the 2016 Act (sch 7, cl 6.1(b)). The reserve trusts were reconstituted as statutory land managers (sch 7, cl 11.4, quoted below). Further provisions, which I discuss in more detail below, effected the transfer of other assets and liabilities of the reserve trust to the newly constituted statutory land manager.

83. [93]

    Conversion to Crown land resulted in extinguishment of any trusts in the land under s 1.10(2). Furthermore, cl 11.2 of sch 7 (quoted below) expressly provided that any trusts over the land were abolished.

84. [94]

    Section 3.16 of the 2016 Act expands upon the Ministerial control of moneys derived from dedicated or reserved land which featured in the 1989 Act. That section particularises the “permitted purpose[s]” to which directed income could be applied. As expressed in s 3.16(3) of the 2016 Act, those purposes include the making of improvements to the land; the acquisition of easements over the land; the preparation of a plan of management; and any purpose referred to in s 2.12 of the Act (which includes, for example, any “purposes for which” the land in question has been “dedicated or reserved” (s 2.12(a)).

85. [95]

    From the outset, the public purposes for which Crown land could be set aside in New South Wales included the burial of the dead. That purpose was expressly mentioned in the Governor’s instructions on the reservation of land (see the instruction quoted by Windeyer J in the Randwick Racecourse case at 72). That power of the Governor was expressly preserved by s 3 of the 1842 Waste Lands Act.

86. [96]

    At pages 63-74 of her thesis, Dr Murray describes the way in which early cemeteries were established and administered. As she describes it, the first colonial cemeteries were products of necessity rather than strategic governmental planning. In the exercise of his powers under his instructions, the Governor simply selected sites for use as cemeteries, without granting or otherwise formally alienating the land. This seems to have been the model applied to the first public cemetery in the new colony, named “Cathedral Close” or the “Old Burial Ground”, which was situated at the current site of Town Hall.

87. [97]

    Over time, it became usual for the Governor to grant land to religious denominations for use as a cemetery. In the period before the passage of the Church Act 1836, 6 & 7 Wm 4, c 71 (Imp), it was the Church of England that took responsibility, and received moneys for, the burial of the dead (irrespective of the deceased’s religious affiliation). That changed after 1836, by which time other religions and religious sects were able to bury their own dead according to their rites and receive income for doing so (in the event that they owned the land on which those rites were performed). Where a grant of land took place, Dr Murray records that it was usual for the relevant clergymen to appoint trustees from the faith for the purpose of managing the cemetery.

88. [98]

    The system of grants was apparently quite inefficient. On average, the time between application for, and then issuance of, a grant of land for the purposes of a cemetery could stretch into years. To some extent, this problem was circumvented by the private purchase of lands by Churches for use as burial grounds, and by donations of land by parishioners for that purpose.

89. [99]

    Necropolis Act 1867 (“1867 Necropolis Act”): A plan of management produced for the Cemetery in 2014 described its origin in the following way:

90. [100]

    The bill for what became the 1867 Act was propounded by a private MP, Mr Wilson. His second reading speech in the Legislative Assembly was reported as saying:

91. [101]

    Dr Murray’s thesis again fills in some extra background detail. In 1845 the Government began investigating the feasibility of a general (that is, interdenominational) cemetery on the then outskirts of Sydney. After two years of inquiry, the General Cemetery Act 1847 was passed, the preamble to which recounted that:

92. [102]

    The provisions of the 1847 Act were very similar to those of the later 1867 Act, described below, except that, in the 1847 Act, there was to be only one body of trustees responsible for the management of the cemetery. It also seems that different burial areas were not contemplated for different sects; rather all “Christians” would be buried together (see ss 1 and 10).

93. [103]

    It was hoped that the creation of a new general cemetery would address the overcrowding problems experienced in the colony’s burial grounds up to that point. But the grant contemplated by the 1847 Act did not take place, and the Act remained a dead letter until the land at Haslem’s Creek was acquired and the 1867 Necropolis Act was passed twenty years later. In Dr Murray’s view, this was due to sectarian disputes, primarily between the Church of England and the Roman Catholic Church. It seems that those disputes arose partly from separatist religious sentiment, but also from a desire by each Church to control the administration of burial rites for, and to collect the fees accruing from, the burial of its own members.

94. [104]

    Section 1 of the 1867 Act empowered the Governor, by proclamation published in the Gazette, to “dedicate and set apart” the Haslem’s Creek land for the purpose of the land being “used as a Cemetery”. Section 2 then empowered the Governor to set apart a separate portion of the Cemetery’s land for each of six specified religious denominations (including the Church of England, the Roman Catholic Church, Presbyterians, Methodists and Jews) for the purpose of the portion so set aside “being used as a Burial Ground for burying the dead of such denomination”. Equivalent provision for the General portion of the Cemetery was made by s 3. This was “to be used as a Burial Ground for burying the dead for whose burial none of the several portions of land set apart under section 2 may from any cause whatever be applicable”.

95. [105]

    Sections 2 and 3 also provided for the Governor to appoint a board of individuals as trustees of each portion of the Cemetery so set aside. The trustees of each denominational portion were to belong to the denomination in question. Section 4 (set out in full below) provided for the vesting of each set-aside portion in the relevant board of trustees.

96. [106]

    Section 5 empowered the Governor, by proclamation, to remove and replace any of the trustees. Requirements for meetings of the trustees and the keeping of minutes were laid down by s 19.

97. [107]

    Section 6 provided that the trustees should, subject to the approval of the Governor, lay out the portion of land vested in them in an appropriate manner, and undertake any consequential landscaping and enclosures. Section 15 empowered the trustees to build a mortuary church or chapel for funeral rites and ceremonies for the burial of the dead. This was subject to the prior approval of the plans of any such building by the Governor. The trustees were empowered to borrow for this purpose, and to charge the fees and other borrowing expenses against income received by them.

98. [108]

    Section 8 gave the trustees power to sell and grant exclusive rights of burial and rights to construct vaults or erect gravestones. The restrictions and conditions upon which this was to be done were to be determined by the trustees, but subject to prior approval by the Governor.

99. [109]

    Section 9 empowered the trustees to charge fees for interment of bodies for the grant of such burial rights. The scale of fees and charges was to be fixed by the trustees; that scale required approval from the Governor and was to be notified in the Gazette.

100. [110]

     Section 12 dealt with religious services in the denominational portions of the Cemetery. The trustees were empowered to appoint a “recognised minister” of the denomination as chaplain to perform the burial services within their portion of the Cemetery. The chaplain was to be paid an annual stipend, not to exceed a statutory limit. Alternatively, the trustees might choose not to appoint a chaplain and instead to allow burials to be conducted by visiting ministers of the denomination, who were to be entitled to a fee fixed by the trustees (with the approval of the Governor). By s 7, any recognised minister of the denomination had the right to attend the Cemetery and conduct services, but was not entitled to any fee for doing so unless that was sanctioned by the trustees.

101. [111]

     Section 18 dealt with regulations. It empowered the trustees (subject to approval from the Governor) to make rules and regulations “in respect of” the portion of the Cemetery vested in them. It also empowered them to do whatever was necessary for “carrying out the purposes of this Act” and in particular for siting graves and vaults and protecting buildings, monuments etc from destruction or damage. They were also empowered to prosecute anyone doing or causing any such damage. A proviso limited these powers so that they could not be used to interfere with performance of any religious ceremony conducted at a burial within the relevant portion of the Cemetery.

102. [112]

     Sections 16 and 17 dealt with overall management and administration. The “business and general management” of the affairs of the Cemetery were to be placed in the hands of a secretary and such clerks as might be necessary, who were to be appointed by the Governor, subject to any regulations made by the trustees. The secretary, whom I will describe as the “general secretary”, was to receive all moneys payable under the Act or levied by the various boards of trustees (but was to keep a separate book of income and expenditure for each trustee board). An abstract of the accounts was to be verified annually by the general secretary before being sent to the Minister of Lands published in the Gazette. For “any matter arising with respect to interments” in any of the separate portions of the Cemetery not provided for by the Act or the regulations, the general secretary was to have power to act under the directions of the trustees in whom that portion was vested.

103. [113]

     Section 14 provided that the fees, charges, and other income derived by the trustees was to be applied in a prescribed order. That order was:

     1. (1)

        meeting their expenses as trustees under the Act;

     2. (2)

        maintaining their portion of the Cemetery;

     3. (3)

        paying the stipend of the minister or ministers conducting burials in their portion of the Cemetery;

     4. (4)

        paying the salary of the Secretary, clerks and other officers “appointed to carry out this Act” (presumably there must have been some arrangement for these expenses to be shared between the different boards of trustees);

     5. (5)

        laying out and embellishing their portion of the Cemetery.

104. [114]

     Sections 20 to 24 dealt with offences. Fines for anyone committing a nuisance or “wantonly or wilfully” damaging any monument or the like were imposed by ss 20 and 21. Damage, whether wilfully or wantonly or not, made the perpetrator liable to pay compensation either at the suit of the relevant trustees or the owner of the property damaged. To enforce the penalties, the Act conferred powers of apprehension and made provision for summary prosecution before a Justice of the Peace.

105. [115]

     Necropolis Act Amendment Act 1884 (“1884 Necropolis Act”): This Act repealed the provisions of the 1867 Act (ss 16 and 17) concerning the appointment of a general secretary and clerks to manage and administer the Cemetery as a whole (see s 1). The operation of those provisions had been found inconvenient (see New South Wales, Parliamentary Debates, Legislative Assembly, 19 March 1884, 2377 (Mr Cohen)). Instead, s 2 of the Act conferred on each body of trustees “entire control and management” of their portion of the Cemetery. The duty to keep accounts and to provide annual reports to the Minister (for Justice) was transferred to them. The trustees were also empowered to appoint their own secretary or manager, and other officers, to assist them in the discharge of their functions.

106. [116]

     Section 3 of the Act clarified the trustees’ powers to make rules and regulations, which were thought to be inadequate for their purposes (see New South Wales, Parliamentary Debates, Legislative Assembly, 19 March 1884, 2377-8 (Mr Cohen)). The section provided that regulations made by the Trustees might provide for: the performance of duties by the chaplain and by the secretary, manager and other officers appointed by the trustees; for the “regulation” of all persons employed in the Cemetery; for the “good order and government” of the Cemetery; and for the enforcement of any regulation by the imposition of a fine (not exceeding £10) for breach, which was to be recoverable in the manner prescribed by the regulations or otherwise under the summary procedures of the 1867 Act.

107. [117]

     Section 4 of the Act went on to authorise the secretary or manager appointed by the trustees to prosecute any offence committed within the limits of the trustees’ portion of the Cemetery. This applied not only to offences under the Act but also any offences created by the regulations made by the trustees.

108. [118]

     Necropolis (Additional Areas) Act 1893 (“1893 Necropolis Act”): This Act was apparently passed to bring under the 1867 Act an additional 577 acres dedicated for the Cemetery’s purposes in 1889 (see [156] below). The Act provided for the appointment of boards of trustees for two additional denominations and vested a specified portion of the additional land in each of the (now) eight boards of denominational trustees (in the case of the Church of England portion, at least, the land had already been set aside). The trustees were to hold the lands so vested “as burying grounds for burying the dead of their respective denominations” (s 3).

109. [119]

     The Act went on to empower the Governor, by proclamation, to set apart as denominational or general burial grounds any land later reserved or dedicated for burial purposes. The denominations were not limited to the eight denominations mentioned in the Act, and if burial grounds for further denominations were set aside the Governor might also, by proclamation, appoint a corresponding body of trustees. The Governor was also empowered, on the application of a body of trustees, to adjust the boundaries of their burial ground, even by including parts of a burial ground already vested in the trustees for another denomination. The land so set apart was to vest in the relevant body of trustees.

110. [120]

     The Act made the provisions of the 1867 and 1884 Acts applicable to the lands newly vested by the Act. Those Acts were also to apply to lands later vested in trustees pursuant to the powers conferred on the Governor under the 1893 Act.

111. [121]

     Necropolis Act 1901 (“1901 Necropolis Act”): This Act was passed for statutory consolidation purposes. It repealed the 1867, 1884 and 1893 Acts, but expressly preserved proclamations, notifications, appointments and regulations made under those Acts by deeming them to have been made under the 1901 Act (ss 3-5). Section 7 expressly continued existing dedications of land for the purposes of the Cemetery and the vesting of portions of that land in the existing Trustees.

112. [122]

     Sections 8 to 11 reflected the provisions of the 1867 and 1893 Acts for the setting aside of further portions of land for denominational burial grounds (s 8); for the adjustment of boundaries on the application of trustees and consequential vesting (or re-vesting) of additional parts of the Cemetery land in those trustees (s 10); and for the vesting of lands set apart by proclamation in the relevant trustees (s 11); and for the nature of the trusts on which the trustees were to hold the land (s 12, quoted below).

113. [123]

     The remainder of the Act largely reflected the provisions of the 1867, 1884 and 1893 Acts. It re-enacted provisions: giving ministers of the relevant denomination a right to conduct burial services (s 13); empowering the Governor to appoint and remove trustees (s 14); prescribing the powers and duties of trustees (ss 15 and 16); empowering trustees to levy charges for burial plots and monuments and burial fees (s 17); prescribing the manner in which income was to be applied (s 18); requiring an annual report to the Minister containing an abstract of moneys received and expended by the Trustees (s 19); empowering the trustees to appoint a secretary or manager and other officers, and also to appoint a chaplain or prescribe fees for visiting ministers to undertake burials (ss 20 and 21); empowering the trustees to sell and grant rights of burial, construction of vaults and monuments etc (ss 24) and to construct mortuary churches and chapels (s 23); empowering them to make rules and regulations (s 26); prescribing rules for the meetings of trustees and keeping of minutes (s 27); and providing for offences and compensation for damage to monuments etc (ss 28 to 34).

114. [124]

     Necropolis (Amendment) Act 1923 (“1923 Necropolis Act”): This Act provided for the establishment of a crematorium within the Cemetery. The Act empowered the Governor to set aside a specified area of land as the site for a crematorium within the area dedicated for the purposes of the Cemetery. It made provision for the appointment of trustees of the crematorium land along the same lines as the provisions of the 1901 Act governing the burial grounds.

115. [125]

     The Act also provided, for the first time, a formal mechanism for undertaking and funding expenditure on “common areas” within the Cemetery. A new s 18A was inserted. Subsection (1) empowered the boards of trustees, individually or in combination, to use their funds for fencing, roads, paths, drains, plantations, and other works “necessary for the proper or more effective management” of the whole of the Cemetery (to which I will refer as “common works”). Subsection (2) empowered the Governor to appoint a joint committee of trustees, consisting of one representative from each separate board of trustees, to direct and control expenditure on such works. The committee was to make an estimate of such expenditure for each year, and was empowered to levy an assessment, with the approval of the Governor, on the income of each body of trustees (but not exceeding 10% of that income) in order to fund that expenditure (subsections (3) and (4)). Subsection (5) empowered the Minister to have the works carried out by the committee inspected, and to direct the committee to undertake repairs or maintenance of the common works.

116. [126]

     Necropolis (Amendment) Act 1954 (“1954 Necropolis Act”): This Act expanded s 18A to give the joint committee power, with the approval of the Governor, to make regulations with respect to roads and paths under the committee’s care, control, or management. The powers of the trustees of the separate portions of the Cemetery, via a secretary or manager, to prosecute for offences under s 34 of the 1901 Act, were limited to offences or contravention of regulations made by those trustees.

117. [127]

     Necropolis (Amendment) Act 1973 (“1973 Necropolis Act”): Among other things, this Act conferred on the Minister powers previously exercised and performed by the Governor. It also introduced a new section 18B, spelling out in more detail provisions for the appointment and replacement of members of the joint committee. The trustees’ power to make regulations (existing s 26) was removed, as was the equivalent power of the joint committee. Instead, the Governor was given power to make regulations (new s 37).

118. [128]

     Necropolis (Amendment) Act 1986 (“1986 Necropolis Act”): According to the second reading speech (New South Wales, Parliamentary Debates, Legislative Council, 1 December 1986, 7206-11 (JR Hallam)), this Act was the product of several years’ consideration about reorganising and modernising the administration of the Cemetery. The Government contemplated abolishing the separate trusts and placing the whole Cemetery under a single trust, but in the end decided against it. Ultimately, it was decided to retain the separate trusts, but to make the regime under the 1913 Crown Lands Act (which included the amendments made in 1974) applicable to the trustees.

119. [129]

     The 1986 Act accordingly inserted into the 1901 Act a new s 7A, which deemed the portions of the land set aside and held by the trustees to have been dedicated for a public purpose under s 24 of the 1913 Crown Lands Act. The effect was to pick up the general Crown land provisions concerning dedication, revocation and rededication in the 1913 Act (see [60] above). Each portion of the Cemetery also became a “reserve” for the purposes of the 1913 Act, bringing the general Crown land management provisions of Part 3B into play (see [66]-[79] above).

120. [130]

     The 1986 Act repealed the provisions of the 1901 Act dealing with appointment and removal of trustees (existing s 14) and the conferral of control and management over the land and the other responsibilities and obligations on the trustees (existing ss 15 to 16). In their place, the Act substituted provisions for the appointment of trustees in accordance with Part 3B of the 1913 Act (new s 14) and specifying that each body of trustees should have, and might exercise, the functions conferred or imposed by or under either or both of the 1901 Necropolis Act and 1913 Crown Lands Act (new s 15).

121. [131]

     The 1986 Act also repealed the provisions of the 1901 Act dealing with the application of income and the making of annual reports to the Minister (existing ss 18 and 19) and the appointment of a secretary or manager and other officers (existing s 20). Evidently, the view was taken that these provisions were redundant, because the regime under the 1913 Act would cover the field.

122. [132]

     The provisions of the 1901 Act relating to the joint committee (existing ss 18A and 18B) were repealed and re-enacted in a different form (new ss 20 to 20F). The effect was a significant expansion in the role of the joint committee, and increased direct supervision and control by the Minister of the committee’s activities.

123. [133]

     The committee was formally given responsibility to construct, care for, control and maintain the common works. The individual boards of trustees were to contribute the funds for the works under an assessment procedure which was to be the subject of regulations and approval by the Minister. It was contemplated that, under the regulations, assessments might differ between different boards of trustees; the limit of 10% of the trustees’ income was dropped. Provision was also made for the committee to provide services to the trustees on a contractual basis to enable them to manage their own portions of the Cemetery, and for the committee to provide financial assistance to boards of trustees.

124. [134]

     The joint committee became a corporate body. Alongside representatives from each of the board of trustees were additional members of the committee appointed by the Minister. The Minister was given power to direct the committee to cause a plan of management to be prepared, to which the relevant provisions of the 1913 Crown Lands Act, ss 37U and 37V (see [68] above), were to apply. The Minister was also given power to require the joint committee to report on such activities as the Minister might from time to time require.

125. [135]

     Schedule 5 to the 1986 Act, which dealt with savings and transitional matters, provided that, upon its commencement, existing trustees vacated their office but were eligible for reappointment. It made s 37VV(2) of the 1913 Crown Lands Act (see [74] above) applicable between the old boards of trustees and the new boards. Thus, the assets and liabilities of the existing boards of trustees who had been appointed according to the provisions of the 1901 Necropolis Act passed to new boards of trustees appointed according to the provisions of the 1913 Crown Lands Act.

126. [136]

     Rookwood Necropolis Amendment Act 2004 (“2004 Necropolis Act”): This Act (which renamed the 1901 Act as the Rookwood Necropolis Act 1901) took the process of subjecting the Cemetery to the Crown Lands Act regime a step further. The Act repealed the provisions of the 1901 Act dealing with dedication and setting aside the land (ss 7, 7A, 8 and 8A) and the “nature of trust” provision (s 12). A new s 6A empowered the Minister, by publication of a notification in the Gazette, to set aside land within the Necropolis for cemetery use (s 6A(1)(a)). The Act repealed the provisions for the appointment and removal of trustees and their powers (ss 14 and 15 as substituted in 1986). It also repealed the provisions dealing with cremation and the provision authorising the payment of the chaplains’ stipend (ss 18 and 19).

127. [137]

     What was left of the 1901 Act was the Minister’s power to set aside further land for use as a cemetery (s 6A); the Minister’s power to adjust boundaries and effect divestiture of land within the Necropolis with the consent of the reserve trust (ss 10 and 10A); the vesting of lands set apart for the use of the reserve trust (s 11); the joint committee (ss 20-20H); and the Governor’s power to make regulations (s 37).

128. [138]

     Rookwood Necropolis Repeal Act 2009 (“2009 Necropolis Act”): This Act repealed what was left of the 1901 Act, as just described. A savings provision was inserted into the 1989 Crown Lands Act (sch 8, cl 54) preserving dedications and reserve trust appointments under Part 5 of that Act. It also preserved any prior vesting of land under s 11 of the 1901 Act, but subject to Part 5. Nothing else was carried forward from the 1901 Act.

129. [139]

     It does not appear to have been considered that the scope of the Public Parks Acts was wide enough to cover cemeteries. But the 1861 Crown Lands Act included the “interment of the dead” in its list of “public purposes” for which land could be dedicated (s 5), and this has been carried through by all of its successor Acts.

130. [140]

     Following the passage of the original Necropolis Act in 1867, there were occasional further statutes dealing with specific cemeteries. But there was no overarching statutory scheme. The specific Acts appear to have been passed when a statutory solution was needed to a particular tenure or conveyancing problem. Overwhelmingly, cemeteries continued to be established and operated under the Crown Lands Act regime.

131. [141]

     Old Dubbo Cemetery, referred to by Leeming JA in Carr, appears to have been a case in point. The land for that cemetery was dedicated in 1871, pursuant to the 1861 Act. In 1877, a notice was published in the Gazette to the effect that several boards of trustees had been appointed by the Governor for different portions of the cemetery (this followed the structure of the Rookwood Cemetery, which was influential, see Dr Murray’s thesis at pages 96-8). The notification presumably took the form which it did because the 1861 Act did not include a statutory mechanism for appointment of trustees by notification in the Gazette. Presumably, the trustees were appointed by means of a grant: although a grant was not necessary under the 1861 Act, the Act did not prevent a grant being made.

132. [142]

     The potential for grants to be used in association with dedications continued under 1884 Crown Lands Act. Trustees of cemeteries would therefore have been among the targets of the Public Trusts Act in 1897. Indeed, there was a 1944 amendment to the 1897 Act (s 2 of the Public Trusts (Amendment) Act 1944) which expressly applied the 1897 Act to trustees of any lands “set apart, dedicated or reserved for the purposes of a cemetery”. This would have included not only cemetery lands dedicated under the Crown Lands Act from 1861 onwards, but also lands vested in trustees by grant prior to or after that date. In turn, such lands were brought under the Crown Lands Act regime as a result of the 1974 amendments to the 1913 Act.

133. [143]

     It should be mentioned that some cemeteries were vested in, and operated by, local Councils. This was acknowledged by the Legislature, which permitted local Councils to convert cemetery land no longer used for that purpose into public parkland: Conversion of Cemeteries Act 1974. It is unnecessary for the purposes of this judgment to say anything more about this part of the history.

134. [144]

     In 2013, the Parliament passed, for the first time, a general statute regulating cemeteries in New South Wales. This was the Cemeteries and Crematoria Act 2013. That Act repealed the specific cemetery statutes to which I have referred above (the Necropolis Act had of course by then already been repealed). The Act also repealed and replaced the Conversion of Cemeteries Act 1974.

135. [145]

     The Act establishes a system for the regulation of what it describes as the “interment industry”. This is overseen by a regulatory agency called “Cemeteries and Crematoria NSW” (referred to in the Act as the “Cemeteries Agency”). The Agency is subject to the control of the Minister. Its functions include: the provision of advice and recommendations on planning for future interment needs; the collection of information; and the conduct of research. It also develops codes of practice for the industry and administers a registration and licensing system for cemetery and crematorium operators.

136. [146]

     Apart from overseeing the industry generally, the Cemeteries Agency also exercises direct control over cemeteries and crematoria on Crown land. Part 5 of the Act deals with the operation of Crown cemeteries and crematoria. For the purpose of the Act, “Crown cemetery” means “Crown managed land, or part of Crown managed land, dedicated, reserved or used … for the purposes of a public cemetery” under the Crown Lands Act. Pursuant to s 73(1) of the 2013 Act, the Agency may recommend to the Minister the appointment of a “Crown land manager as a Crown cemetery operator … for any Crown cemetery”. The Minister is then able, but not obliged, to make an appointment accordingly (see s 73(2)).

137. [147]

     The 2013 Act establishes a system of supervision by the Cemeteries Agency over Crown cemetery operators that has similarities to some aspects of the management regime which applies under the Crown Lands Act. Pursuant to s 93(1) of the Act, the Agency may direct a Crown cemetery operator to prepare a plan of management for the cemetery in question, which, when approved, constrains the operator’s ability to manage the cemetery (see s 96). Subdivision 5 of Part 5 of the Act imposes a number of financial reporting obligations on Crown cemetery operators, including the preparation of an annual financial report to be provided to the Agency (see s 99). To this end, s 102 confers a power of inspection and audit on the Agency.

138. [148]

     There are also provisions in the 2013 Act which parallel provisions of the former Necropolis Act. Section 106 of the Act empowers the Cemeteries Agency to “make such provision as it considers necessary” for a number of matters involved in the running of a cemetery (including, for instance, “the conduct of religious or other ceremonies of interment or commemoration”, see s 106(m)). Pursuant to s 107 of the Act, the Agency is given a general power to impose, and manage, “fees or charges payable for the services provided in respect of the cemetery”. This includes a power to set those fees or charges aside (see s 107(2)-(3)).

139. [149]

     These parallels are not surprising. They reflect the enduring public and religious interests in the establishment and operation of cemeteries for the purpose of the interment of the dead.

140. [150]

     As already noted, the Cemetery originated with 200 acres of land at Haslem Creek, which had previously been granted to private owners, and had been reacquired by the Colonial Government for the proposed Necropolis. In April 1868, following the passing of the 1867 Necropolis Act, the 200 acres were formally dedicated and set apart under s 1 of the Act (see [104] above) as land for the Cemetery.

141. [151]

     In November 1879, the Colonial Government purchased from private owners a further 577 acres of land adjoining the Cemetery. This land was dedicated under s 104 of the 1884 Crown Lands Act (see [43] above) as an extension to the Cemetery in December 1887.

142. [152]

     A small additional parcel of land was dedicated for the Cemetery in August 1934, under s 24 of the 1913 Crown Lands Act (see [60] above). There were two further dedications of land for the Cemetery, one in 2000 and one in 2014. The parcels of land covered by those dedications do not come into this judgment, and it is not necessary to say anything more about them.

143. [153]

     Set out below is a current plan showing when the different parts of the Cemetery were dedicated:

144. [154]

     In April 1868, immediately following the dedication of the initial 200 acres for the Cemetery, 53.75 acres were, by proclamation under s 2 of the 1867 Necropolis Act (see [105] above), set aside as the Church of England portion of the Cemetery and vested in a board of individual trustees who were members of the Church. I will refer to the trustees, and their successors, collectively as the “Anglican Board of Trustees”.

145. [155]

     As we have seen, the 1867 Act conferred on the Trustees powers to manage the Land, and, in particular, to levy charges for burial plots and monuments. Although there is no evidence of the Trustees’ receipts and expenditure, it is plain that, over time, they would have purchased equipment and supplies, and built up monetary reserves, out of the charges levied by them under the Act.

146. [156]

     By proclamation in February 1889, 190.75 acres of the land dedicated in 1887 were set aside for the Church of England burial ground, in addition to the existing 53.75 acres, and the existing Anglican Board of Trustees were appointed as trustees of the additional land. This proclamation was made, not under the 1867 Necropolis Act, but under s 104 of the 1884 Crown Lands Act (see [43] above). The proclamation did not provide for the formal vesting of the additional land in the Trustees. But the 1893 Necropolis Act had the effect of vesting that land in them (see [118] above).

147. [157]

     The 1901 Necropolis Act repealed the 1867 and 1893 Acts, but deemed the setting aside of land under those Acts to have occurred under the 1901 Act. The new Act, by s 7, continued the vesting of that land in the existing Anglican Board of Trustees in accordance with the terms of that Act (see [121] above).

148. [158]

     Three further alterations were made to the Anglican Cemetery Land by proclamation in May 1935. First, a further 56 acres which had been dedicated for the Cemetery in 1887 (see [156] above) was set aside for Church of England use. Second, a further 0.5 acres of land which had been dedicated in 1934 (see [152] above) was set aside for Church of England use. Third, by boundary adjustment, about 2.5 acres of the existing Anglican Cemetery Land was transferred to the General portion of the Cemetery.

149. [159]

     In January 1968, there was a further proclamation adjusting the boundaries of the Church of England portion of the Cemetery by adding back the 2.5 acres of land which had been transferred in 1935. Further adjustment was made in September 1978 when some of the Anglican portion was transferred to the Muslim portion of the Cemetery. Further land was transferred from the Anglican portion to the Catholic portion of the Cemetery by notification in November 1985.

150. [160]

     The combined effect of these proclamations and notifications was to add three additional parcels of land to the Anglican Cemetery Land: 56 acres in May 1935, out of the December 1887 dedication; 0.5 acres in May 1935, out of the August 1934 dedication; and 2.5 acres in January 1968, being the re-transfer of land previously transferred to the General portion of the Cemetery. As I explain below, in each case the additional land vested in the Anglican Board of Trustees in accordance with the terms of the 1901 Necropolis Act.

151. [161]

     Despite the Anglican Cemetery Land having originally been set aside for the burial of members of the Church of England denomination, over time some parts of the Land were, by arrangement with the Trustees, used or promised for burial of members of other, smaller, denominations. Indeed, the 2.5 acres transferred in 1935 to the General portion of the Cemetery were, when transferred back in 1968, described in the proclamation as the “Church of England Burial Ground (Russian Orthodox)”. The understanding on the part of the current administrator of the Manager is that this was done to secure income for the Trustees. Part of the Land was also given over to war graves.

152. [162]

     The provisions of the 1986 Necropolis Act which placed the management of the Cemetery under the 1913 Crown Lands Act (see [129] above) came into effect on 1 April 1988. Acting under both the Crown Lands Act and the Necropolis Act (see [123] above), the Minister appointed a new board of trustees for the Anglican Cemetery Land. The Minister then, acting under the Crown Lands Act (see [70] above), declared the new board of trustees to be a corporation under the name “Anglican Cemetery Trust, Necropolis”.

153. [163]

     The effect (see [74] above) was to vest the Land held by the former Anglican Board of Trustees in that Corporation, to which I will refer as the “Anglican Trust Corporation”. There was a consequential transfer (see [74] above) of the Anglican Cemetery Proceeds held by the former Board of Trustees to the Corporation.

154. [164]

     Under the 1986 Act, the existing dedications of the Anglican Cemetery Land made or continued under the Necropolis Act were taken to be dedications for the purposes of the 1913 Crown Lands Act. Those deemed dedications were preserved when the 1913 Act was replaced by the 1989 Crown Lands Act. None of this affected the continued ownership of the Anglican Cemetery Land by the Anglican Trust Corporation.

155. [165]

     In December 1994, there was a boundary adjustment between the Catholic, Independent, General, and Anglican portions of the Cemetery. This resulted in the addition to the Anglican portion of about 7,300m2 of land which vested in the Anglican Trust Corporation pursuant to the 1901 Necropolis Act.

156. [166]

     The partial repeal of the 1901 Act by the 2004 Necropolis Act did not repeal the provision vesting the Anglican Cemetery Land in the Anglican Trust Corporation. That provision was repealed when the rest of the 1901 Act was repealed by the 2009 Necropolis Act, but the transitional provisions preserved the appointment of the Corporation and the vesting of the Land in the Corporation

157. [167]

     In April 2012, acting under the Crown Lands Act, the Minister dissolved the Anglican Trust Corporation and the trustee corporations for four other portions (Independent, General, Jewish, and Muslim) of the Cemetery (each of which, like the Anglican Cemetery Land, was a reserve for the purposes of the Crown Lands Act). A new reserve trust was constituted under the name “Rookwood General Cemeteries Reserve Trust” (“RGC Trust Corporation”) and appointed as the trustee of each of the five reserves. An administrator was appointed to the Corporation, ending the system of management by denominational community members.

158. [168]

     These changes were part of a wider reorganisation. The Catholic portion of the Cemetery was dealt with separately. It was transferred to a reserve trust named the Catholic Metropolitan Cemeteries Trust (“CMCT”). The joint committee was also reconstituted and continued its management of the “common areas” as a reserve trust under the name of the “Rookwood Necropolis Reserve Trust”.

159. [169]

     For operational purposes, the Cemetery was now divided between the RGC Trust Corporation and the CMCT. A diagram showing its layout in 2014 appears below. The five combined portions managed by the RGC Trust Corporation are shown in pale yellow.

160. [170]

     The intended effect of the steps taken by the Minster in April 2012 was to transfer all of the assets of the five former reserve trusts to the RGC Trust Corporation. But counsel for the Manager identified a potential complication so far as the appointment of the RGC Trust Corporation as trustee of the Anglican Cemetery Land was concerned. The published instrument of appointment referred only to those parts of the Land dedicated in 1868 and 1887. It did not refer to the small piece of land derived from the 1934 dedication. Counsel suggested that this could now be a problem if there had been income derived specifically from that piece of land.

161. [171]

     It seems highly unlikely that any such specific income could be identified. There was no evidence before me on the question and it is not even clear to me whether there are in fact graves on that particular part of the site. In any event, it is not necessary to go into this question given the conclusions which I have reached.

162. [172]

     The establishment of the RGC Trust Corporation in April 2012 was referred to in some of the evidence as an “amalgamation”. In a management sense, it was. But each of the five constituent portions of the land in question remained a separate reserve. Nevertheless, under s 111A of the 1989 Crown Lands Act (see [89] above) the Minister made a direction about the transfer of assets and liabilities between the former reserve trusts (including the Anglican Trust Corporation), referred to as the “Five Former Trusts”, and the new RGC Trust Corporation, referred to as “The Trust”, which provided:

163. [173]

     No board was never appointed for the RGC Trust Corporation, and it continued under the management of an administrator. Following the passage of the Cemeteries and Crematoria Act 2013, the operation of the combined portions of the Cemetery under the management of the RGC Trust Corporation came under the supervision of the Cemeteries Agency. The Corporation was appointed by the Agency as an authorised cemetery operator for the purposes of the Act.

164. [174]

     As at April 2012, the former Anglican Trust Corporation held $20.7 million in cash and investments. After what was described in the affidavit filed for the Manager as a “period of transition”, the Corporation operated from late 2013 “with a consolidated pool of finances”. If the parties’ contention that the Anglican Cemetery Proceeds are held on trust succeeds, some accounting exercise will be required. Whether that will be so in any event, given the apparent non-compliance with the Minister’s direction, was not the subject of any further evidence, or any submission, in these proceedings.

165. [175]

     On 1 July 2018, the 2016 Crown Lands Act came into effect. The result was that the Anglican Cemetery Land, together with the other four portions making up the RGC land, was converted to Crown land, and any trust over the land was abolished: see [93] above. The RGC Trust Corporation was reconstituted as a statutory land manager under the name “Rookwood General Cemeteries Reserve Land Manager” (the plaintiff, which I have already defined as “the Manager”). The Corporation’s assets and liabilities were taken over by the Manager. The effect of the transitional provisions on the trust status, if any, of those assets will be discussed below.

166. [176]

     In November 2019, the Government commissioned a review of cemeteries in New South Wales, with particular emphasis on the space problems facing Sydney’s major cemeteries. The review resulted in a report which was completed in August 2020 and published in February 2021. The report, which was titled “The 11th Hour: Solving Sydney’s Cemetery Crisis”, noted that Sydney’s major cemeteries would be full within the next few years. This was earlier than had previously been expected. The report recommended regulatory changes and the acquisition of further land.

167. [177]

     To this end, the report recommended that the management and operation of Crown cemeteries in New South Wales, including the non-Catholic portion of Rookwood Cemetery, be further consolidated. The recommendations were accepted by the Government, which established a single Crown cemetery operator for this purpose, named “OneCrown”.

168. [178]

     In September 2021, the Manager received a copy of an advice prepared for the CMCT which drew attention to the potential existence of charitable trusts over the land at Rookwood. The Manager sought its own advice, which culminated in these proceedings.

169. [179]

     It is clear that, as a result of the 2016 Crown Lands Act, there can be no charitable trust over the Anglican Cemetery Land at Rookwood. But, if the Anglican Cemetery Proceeds were, at the commencement of the Act on 1 July 2018, and remain, subject to a charitable trust, then questions arise about the use of those Proceeds (now forming part of the RGC Trust Corporation funds being administered by the Manager) in the future. Can the funds be applied to the purchase of cemetery land not at Rookwood; or for non-Anglican cemetery purposes; or for more general purposes associated with the reform of the cemetery sector generally? Questions may also arise about the propriety of using funds for the ongoing maintenance and operation of those parts of the Anglican Cemetery Land devoted to other denominations, or to war graves. The land so devoted accounts for almost 20% of the Anglican Cemetery Land in total.

Trust status of Anglican Cemetery Land and Proceeds

1. [180]

   In summary, the Manager’s argument consisted of four propositions. First, the effect of the vesting of the initial portion of the Anglican Cemetery Land in the Anglican Board of Trustees pursuant to the 1867 Necropolis Act was to establish a charitable trust, enforceable in equity in the usual way, for the use of the Land as a burial ground of members of the Anglican denomination, and for the use of the Proceeds to support those operations. Second, later accretions to the Anglican Cemetery Land, and the Proceeds derived from those accretions, were subject to the same trust. Third, the trust subsisted, despite the Cemetery being brought under the Crown Lands Act from 1986 onwards, and the repeal of part, and then the remainder, of the 1901 Necropolis Act in 2004 and 2009. Fourth, the later abolition of any trust over the Land, as a result of its conversion to Crown land on 1 July 2018, left the trust in place over the Proceeds.

2. [181]

   Broadly speaking, counsel for the Attorney-General agreed with each of these propositions. There were, however, some differences in detail and in emphasis.

3. [182]

   Before dealing with these propositions, it is necessary to summarise the case law on two issues to which I was referred. First, I will summarise the general principles established by cases on the interpretation of statutes which provide for land or other property to be held “on trust” for specified persons or purposes. Next, I will address the cases on charitable trusts for burial and cremation. I will then address the four propositions in counsel’s arguments, as they apply to the Anglican Cemetery Land and he Anglican Cemetery Proceeds.

4. [183]

   It is convenient to begin with the decision of the House of Lords in Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619. The case concerned treasure taken as war booty by British armed forces in the campaign following the Indian Mutiny. By Order in Council, the Crown expressed an intention to grant and distribute among the armed forces the proceeds of the campaign, “in such manner as may be hereafter determined”. By Royal Warrant issued in June 1864, the treasure in question was granted by the Crown to the Secretary of State for India, sitting in Council, “in trust for the use of” designated classes of military personnel. Disputes arose about the distribution of the proceeds. The appellant, a chaplain in the armed forces, brought an action against the Secretary of State for an account.

5. [184]

   The argument for the appellant seems to have had two limbs. First, it appears to have been submitted that a trust over the treasure arose upon the promulgation of the Order in Council. Secondly, it was submitted that the vesting of the treasure in the Secretary of State by the Royal Warrant established a trust in equity for those entitled to share in it.

6. [185]

   Those submissions were unanimously rejected by the House. The first argument was rejected on the basis that the Order in Council did not actually make a grant; it only expressed the Crown’s intention to do so in due course. On the second argument, the House held that the Royal Warrant, although it used the language of grant and trust, did not give rise to a trust in equity.

7. [186]

   Lord Selborne LC, with whom Lord O’Hagan, Lord Blackburn and Lord Watson agreed, said (at 625-6):

8. [187]

   His Lordship also noted that the Warrant expressly adverted to the procedure to be undertaken in the event of a dispute about distribution of the treasure. Any such disputes were to be determined in the first instance by the Secretary in Council, with recourse then to the Commissioners of the Treasury. His Lordship remarked (at 626-7):

9. [188]

   In a concurring judgment, Lord O’Hagan commented (at 630):

10. [189]

    In Fouche v Superannuation Fund Board (1952) 88 CLR 609 the High Court had to consider the nature of the obligations owed to members of the Tasmanian Government Superannuation Fund, which was a statutory body with a board appointed by the Government. The case concerned a grossly improvident investment of the Fund’s moneys. At first instance, before the Chief Justice of Tasmania, the board members were found liable on the footing that the assets of the Fund were subject to a trust of which the members were beneficiaries. The appeal was dismissed, but on somewhat different grounds

11. [190]

    The judgment of the Court (Dixon, McTiernan and Fullagar JJ) stated (at 640, emphasis original):

12. [191]

    Nevertheless, their Honours concluded that the board members had rightly been made personally liable in equity. The board members owed a duty to invest the assets of the Fund which was fiduciary in nature, and the duty was sufficiently similar to a trustee’s duties with respect to the investment of to attract equity’s intervention (see at 641).

13. [192]

    I come now to the Randwick Racecourse case (cited at [16] above). The racecourse land was vested in trustees pursuant to a Crown grant made in 1863. The case concerned the application of s 132(1)(c) of the Local Government Act 1919, which created a rates exemption for land “vested in … trustees and … used for a public reserve”. The phrase “public reserve” was relevantly defined to mean “any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purposes of the like nature”.

14. [193]

    The Court held that the exemption was not available. The main ground of the decision appears to have been that, although the land had been used as a racecourse from the beginning, the grant actually covered a variety of purposes not all of which fell within the exemption (see at 93-5). Windeyer J gave the leading judgment in the case, in which Dixon CJ, Fullagar J, and Kitto J each concurred.

15. [194]

    Among the cases discussed by Windeyer J in his historical review were the Clergy and School Lands Corporation case (Attorney-General (NSW) v Eagar), the Government House case, and the Garden Island case. Windeyer J stated (at 75, emphasis original, citations omitted):

16. [195]

    In this passage, his Honour makes it clear that, whatever restrictions might be imposed upon the executive in its dealings with land which is subject to a “public trust”, there is no restriction on legislative power. As his Honour put it later in his judgment, the “seeming immutability and perpetuity” of a dedication of land to public purposes “would always yield to a statute” (see at 77). In this regard, his Honour referred specifically to the decision in the Garden Island case, upholding the constitutional validity of the revocation of a prior dedication of land for specified public purposes.

17. [196]

    His Honour continued, at 75-6:

18. [197]

    Two contextual points should be made about this passage. The first is that the Randwick Racecourse case was about the rating of the racecourse land. Ultimately, the result turned on the construction of the rating legislation, and, in particular, the meaning of the phrase “dedicated or reserved for public purposes”.

19. [198]

    The second contextual point is that the land in the Randwick Racecourse case had actually been the subject of a grant to individual trustees, who held the legal title as private citizens (see at 83-85). So too the lands which were the subject of the Clergy and School Lands Corporation case had been granted to the Corporation. Neither case involved the question whether land vested in trustees by statute, without a grant or conveyance, was subject to a charitable trust enforceable against the trustees in equity.

20. [199]

    The next decision is Registrar of Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145. The case concerned Victorian legislation which provided that statutory compensation for victims of crime was to be held by the Registrar on trust for them. The question was whether the income derived on that compensation was trust income for income tax purposes. It was argued for the Registrar that such income was to be dealt with on a “governmental or administrative basis”, and was not subject to income tax as the income of a trust.

21. [200]

    As described by the High Court, at 162-3 (citations omitted):

22. [201]

    The High Court thus indicated that the Kinloch principle is not an inflexible rule. Its force depends upon the subject-matter and context of the legislation. The Court decided that the Registrar held the compensation money under a trust enforceable in equity. An important factor in this conclusion was that the holding of the money before it was paid out to victims did not involve any matter of governmental interest or policy.

23. [202]

    In the Bathurst City Council case (cited at [16] above), the plaintiff, PWC, was the owner of a shopping centre. Adjoining the shopping centre was a carpark built on land vested in the Council. Originally, the land had belonged to the developer of the shopping centre. It had been transferred to the Council as part of the arrangements under which the developer had originally obtained approval to build the shopping centre. The construction of a carpark had been essential to the development. Later, after the development had been constructed, the Council decided to seek expressions of interest for its sale or redevelopment. PWC became concerned that the carparking arrangements for the shopping centre might be unfavourably altered by the redevelopment.

24. [203]

    In order to pursue expressions of interest, the Council purported to resolve to classify the land as “operational land” for the purposes of the Local Government Act 1919. That classification would have been impermissible if the land were “subject to a trust for a public purpose” within the meaning of cl 6(2)(b) of sch 7 to the Act. PWC challenged the resolution and sought declaratory and injunctive relief preventing the Council from proceeding with the proposed sale or redevelopment.

25. [204]

    The Council accepted that, in receiving the land, it had subjected itself to an obligation to use the land as a site for a carpark. The High Court accepted (at [31]-[33]) that there was “force in” PWC’s argument that such a use would be the type of use which could be the subject of an ordinary charitable trust in equity. But, in the end, it was unnecessary to decide this question.

26. [205]

    The Court considered that the use of the term “trust” in cl 6(2)(b) was not to be construed “wholly in its technical sense” (see at [44]). Instead, the Court commented (at [48], citations omitted):

27. [206]

    The Court concluded (at [67], citations omitted):

28. [207]

    That last sentence is important. The High Court expressly contemplated that the Court, in its equitable jurisdiction, could grant declaratory and injunctive relief, at the suit of the Attorney-General, to enforce the use of the land in accordance with a public purpose, even if the purpose was not charitable (see also at [65]). Indeed, the High Court upheld the grant of declaratory and injunctive relief granted at the suit of PWC. Presumably, that relief was granted pursuant to the equitable jurisdiction to grant such relief against the breach of a statute, at the suit either of the Attorney-General or of another person having a “sufficient interest” (see Heydon, JD, Leeming, MJ and Turner, PG, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) at [21-170]-[21-175]).

29. [208]

    Western Australia v Ward (2002) 213 CLR 1 was a native title case. The question was whether native title had been extinguished over an area by reservation under the Land Act 1933 (WA). Section 33 of that Act had relevantly provided that:

30. [209]

    The High Court held that native title had been extinguished. The Court reasoned as follows (citations omitted):

31. [210]

    In Wellington Capital Ltd v Australian Securities and Investments Commission (2014) 254 CLR 288 the High Court referred to s 601FC(2), one of the provisions of the Corporations Act 2001 dealing with managed investment schemes. The section provides that “the responsible entity holds scheme property on trust for scheme members”. The Court appears to have seen this provision as creating a statutory trust rather than a “true trust”, and emphasised that the question of the trustees’ duties in such a case is fundamentally a matter of statutory interpretation (see [12]-[13]). However, the result of the case turned on the application of another section in the Act. The observations made by the High Court did not form part of the ratio of the Court’s decision.

32. [211]

    More recently, in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5 the High Court was faced with a contention that a trust had been created by the terms of an airport lease. Two of the judgments referred to the Kinloch principle by way of analogy. Gageler and Gleeson JJ at [60] stated that an intention on the part of the legislature to create a trust in the true sense is not “to be imputed” in the absence of an ambiguous indications to the contrary. Edelman and Steward JJ, on the other hand, emphasised the earlier decision of the Court in Registrar and saw the question as turning on the presence or absence of governmental functions (at [126]). But even if no purely governmental function was involved in that case, their Honours still considered, as a matter of construction, that no trust arose.

33. [212]

    The burial of the dead has been recognised as a charitable purpose falling within the “spirit and intendment” of the Statute of Elizabeth (the Charitable Uses Act 1601, 43 Eliz 1, c 4). The relevant authorities were summarised by the House of Lords in Scottish Burial Reform & Cremation Society Ltd v Glasgow Corporation [1968] AC 138.

34. [213]

    In Re Vaughan; Vaughan v Thomas (1886) 33 Ch D 187, a trust for the maintenance of a churchyard (though, not of the settlor’s family tomb) was held to be charitable in nature (see at 190-1 per North J; see also Re Manser; Attorney-General v Lucas [1905] 1 Ch 68 at 74-5 per Warrington J). In Re Eighmie; Colbourne v Wilks [1935] Ch 524, Eve J recognised (at 528) as charitable a trust for the maintenance of a cemetery appurtenant to the yard of a parish church.

35. [214]

    In the Scottish Cremation case, the House of Lords accepted that the provision of cremation services, even if not involving a religious element, had a sufficient element of public interest to constitute a valid charitable purpose. Lord Upjohn, with whom Lord Pearson agreed, said at 150-51:

36. [215]

    The parties’ arguments about the trust status of the Anglican Cemetery Proceeds began by analysing the trust status of the Anglican Cemetery Land. This means that, although it is now clear that any trust which may have subsisted over the Land has been extinguished, it is still necessary to begin by analysing the trust status of the Land as it was up until 1 July 2018, when the extinguishment provision came into force.

37. [216]

    Counsel for the Manager submitted that the use of land as a public burial ground was, on the authority of the Scottish Cremation case, a charitable purpose. Counsel further submitted that the authorities set out above show that it is possible to create a trust, cognisable in equity under its jurisdiction over trusts, or a “true trust”, by statute. Whether, in a particular case, the Parliament has done so is a question of construction.

38. [217]

    I accept all of these propositions. The first question is, therefore, whether, on the true construction of the 1867 Necropolis Act, land set aside under the Act for the Church of England burial ground was subjected to a charitable trust. If so, it is necessary to ask whether that remained the case under the 1901 Act, and whether it was affected by the repeal of that Act. In what follows I will for convenience refer to trust cognisable in equity in the ordinary way as a “trust in equity”, and a “trust” created by statute which only gives rise to statutory obligations as a “statutory trust”.

39. [218]

    1867 Necropolis Act: The critical provision is s 4 of the 1867 Act, which was described in the side note as dealing with the “nature of trusts”. The section provided:

40. [219]

    Counsel for the Manager submitted that the language of the Act, and particularly s 4, was the technical language of trust law. Counsel submitted that, even if the Kinloch principle created what was effectively a presumption against the finding of a trust in equity, that presumption was overcome. Counsel contended that the original Church of England portion of the Cemetery was, by force of the 1867 Act, held by the trustees for the purpose “a burial ground for burying the dead of [the Church of England] denomination”.

41. [220]

    Out of the cases to which I have referred, Western Australia v Ward provides the strongest apparent support for counsel’s submission. But it is not determinative.

42. [221]

    In Western Australia v Ward the High Court cited the passage which I have quoted at [194] above from the judgment of Windeyer J in the Randwick Racecourse case about the dedication of lands for public purposes. I have already pointed out the contextual limitations on that passage. Furthermore, as the Bathurst City Council case shows, the constructional choice facing the Court is between a charitable trust in equity, enforceable under the Court’s equitable jurisdiction over the administration of trusts, and a statutory trust enforceable by injunction. It was not necessary to choose between these two alternatives in Western Australia v Ward. The result would have been the same whether the effect of the Western Australian legislation had been to create a trust in equity or a statutory trust (see at [241], quoted at [209] above).

43. [222]

    Counsel for the Attorney-General took a somewhat different line. Counsel acknowledged that the references in the Act to land being “dedicated” and “set apart” were not, in themselves, enough. Counsel observed that these terms have a long history in the Crown Lands Acts, referring to Windeyer J’s judgment in the Randwick Racecourse case. Counsel thus appeared to accept that Crown lands dedicated for public purposes are not necessarily subject to a trust in equity even if those purposes happen to be charitable.

44. [223]

    Counsel pointed out, however, that s 4 went further than merely dedicating or setting apart the Anglican Cemetery Land. The “legal estate” in the Land was “vested” in the Anglican Board of Trustees. Counsel submitted that this was an indicator of a trust in equity, not merely a statutory trust.

45. [224]

    Counsel also contended that the background to the enactment of the 1867 Act supported the conclusion that the Parliament had created a trust in equity. Counsel pointed out, by reference to the second reading speeches, that it may have been thought that the 1861 Crown Lands Act did not apply to land which had originally been granted to a private individual and then reacquired by the Crown. Counsel submitted that the purpose of the Act was to ensure the development of the Cemetery by overcoming this perceived problem.

46. [225]

    I agree that there seems to have been a perceived difficulty with applying the 1861 Act to land which had been reacquired by the Crown. But this, in my view, does not much assist counsel’s argument that a trust in equity was created. The perceived difficulty would equally have been a barrier to the establishment of a statutory trust by making a dedication under the 1861 Act.

47. [226]

    Had there been a conscious desire to create a trust in equity, this could presumably have been done by making a grant to private trustees for the relevant purpose. Perhaps there was some doubt about whether the purpose was charitable. Perhaps the then-recent decision in the Clergy and School Lands Corporation case was thought to have implications, or potential implications, for Governmental control of the Cemetery which were undesirable. But whatever the explanation may have been, a grant structure was not used.

48. [227]

    What is clear is that the 1867 Act was passed against the background of sectarian debate and that the Act sought to regulate the Cemetery, as a public institution, in the public interest. That regulation manifested itself in at least three ways. First, by imposing restrictions on the powers of the trustees to alienate the land and prescribing the way in which the trustees should conduct themselves, including in their internal governance. Secondly, by giving the Executive of control of the appointment and removal of the trustees and requiring prior approval from the Executive for the laying out and development of the land and the charging of fees. Thirdly, by conferring power on the trustees themselves, subject to the approval of the Executive, to make rules and regulations governing the land vested in them.

49. [228]

    There are clear and close parallels with the system of regulation of public parks established by the Public Parks Act in 1854. The same three forms of public interest regulation appear in that Act also.

50. [229]

    The public interest in making cemeteries available for the interment of the dead is clearly brought out in the Scottish Cremation case and needs no further emphasis. The fees and costs charged also brought in an element of consumer protection. There were also religious interests to consider, as shown by the provision which secured access by any minister of the relevant denomination to the relevant denominational portion of the Cemetery.

51. [230]

    Counsel for the Attorney-General observed that the statutory provisions limiting the trustees’ powers, and prescribing the manner in which they should be exercised, were functionally equivalent to restrictive and prescriptive terms in a trust deed. Those provisions could, and would, be enforced by the Court in trust administration proceedings. But as the Bathurst City Council case shows, in a statutory trust such restrictions and prescriptions could similarly be enforced by way of injunction, not only at the suit of the Attorney-General but also at the suit of anyone having a “sufficient interest”.

52. [231]

    Counsel observed that Ministerial power over appointment and removal of the trustees again reflected the type of power which is often provided for in a trust deed. The same might be said of requirements for Ministerial approval of the trustees’ actions. But, again, this does not take the argument very far. The effect, both in a trust in equity and in a statutory trust, is that control over a part of the administration of the “trust” is conferred on a third party and the Court’s power to intervene is correspondingly limited.

53. [232]

    The exercise of a power of appointment under a trust deed attracts the Court’s cognisance under the doctrine of fraud on a power (as, for example, in Baba v Sheehan [2021] NSWCA 58). Strictly speaking, however, this stands outside the Court’s jurisdiction over the administration of trusts; indeed, the doctrine may apply to powers other than those conferred by trust deed: see, eg, Tomlin v Ford Credit Australia Ltd [2005] NSWSC 540 at [120] per McDougall J. If that is so, the exercise of a power conferred by statute would likewise be subject to review in equity. But in the present case, powers conferred on the Minster would be subject to administrative law review in any event.

54. [233]

    This brings me to the power to make rules and regulations protecting the monuments on the land vested in the trustees, and for other purposes, and to prosecute for breach of those by-laws. Counsel for the Attorney-General submitted that the boards of trustees were not organs of the Government for relevant purposes. That may be so, but the Kinloch doctrine is not limited to high Governmental officials. It extends to any persons discharging any functions which are governmental in nature (Registrar at 162-4).

55. [234]

    Counsel for the Manager submitted, as I understood the argument, that the regulation-making power only really covered things which were within the trustees’ control as owners of the land vested in them. Counsel instanced a regulation requiring visitors to “keep off the grass”. But I think that is too narrow a view.

56. [235]

    In the first place, the regulations applied to, and were binding on, the general secretary and the clerks administering the Cemetery. The general secretary and the clerks were appointed by the Governor and were not servants of the trustees.

57. [236]

    Secondly, the regulations would not necessarily depend upon the existence of any contractual relationship. They could apply to trespassers and invitees as well as entrants under contract, and would be enforceable by way of a fine exacted through the criminal justice system. Such regulations might have been described instead as by-laws. The observations of Lindley LJ in London Association of Shipowners and Brokers v London India Docks Joint Committee [1892] 3 Ch 242 at 252 are in point:

58. [237]

    In my view, the exercise by a board of trustees of the regulation-making power would not have been cognisable in this Court’s charitable trust jurisdiction. A challenge to a regulation on the ground that it had not been made in accordance with the requirements of the Act, express or implied, would have invoked the Court’s administrative law jurisdiction. Whether that is sufficient to stamp the whole of the “trust” as a statutory trust does not in the end need to be decided. But if the Act did create a trust in equity, the regulation-making power, at least, stood outside that trust.

59. [238]

    Later Necropolis Acts: It is convenient to deal first with the general characterisation of the later Acts. I will then return to the amendments to the vesting provisions and the accretions of further land.

60. [239]

    In general, the later changes to the 1867 Act were matters of detail only. The main features of the Act, and much of its language, were preserved in the 1901 Act, and retained thereafter. These included the features of regulation in the public interest which I have described.

61. [240]

    If there were any doubt about the public nature of the Trustees’ power to make rules and regulations under the 1867 Act, the position was put beyond doubt in the 1884 Act. The amendments made by that Act provided in express terms that the trustees could (with the consent of the Executive) make regulations which would result in those who infringed them being fined.

62. [241]

    The power to make rules and regulations, as clarified by the 1884 Act, was carried forward to the 1901 Act. The power was eventually removed from the Trustees and transferred wholly to the Executive, but that did not happen until 1973. Whether the later making of that amendment could have altered the characterisation of the 1901 Act in terms of the distinction between a trust in equity and a statutory trust was not addressed in argument and does not need to be considered.

63. [242]

    One of the notable things about the statutory history is the way in which the management provisions of Crown Lands Act converged with the management provisions of the Necropolis Act over time. Following the 1974 amendments to the Crown Lands Act, it had adopted a system of management by trustees, with statutory restriction on powers of dealing and statutory prescription of governance and accounting, which was virtually the same as the system under the Necropolis Act. Under the Necropolis Act, the Cemetery lands were actually vested in the trustees, whereas, under the Crown Lands Act, trustees were deemed (unless the land had originally been the subject of a grant) to hold a fee simple. But this was a difference of form rather than substance.

64. [243]

    By 1974, the Crown Lands legislation in fact went further than the Necropolis Act in some respects so far as Executive control over the use and management of land was concerned. The Minister had power to amalgamate or rededicate land, thereby devoting it to different purposes, or even to revoke the dedication entirely and revest the land in the Crown. The Minister also had power, in the event of sale of the land, to decide what was to be done with the proceeds of sale, without any limitation from the terms of the original dedication. The could also, in effect, direct the trustees as to how to use and manage the land by adopting a plan of management.

65. [244]

    On the face of it, the effect of the provisions placing the Cemetery under the Crown Lands Act effected by the 1986 Necropolis Act was to subject the Cemetery land to this additional level of Executive control. The deemed dedication of the land for the purposes of the Crown Lands Act brought the powers of amalgamation, rededication and revocation into play, and the new s 15, conferring functions and obligations on the trustees derived from the Crown Lands Act as well as the Necropolis Act, picked up the power to propound a plan of management and thereby direct the trustees as to the use of the land.

66. [245]

    Counsel for both the Manager and the Attorney-General submitted however that there was no discernible intention in the 1986 Act that the trust status of the Cemetery land was to be disturbed. They referred to the explanatory memorandum which stated the purpose of the amendments made by the Act as having been:

67. [246]

    In my view, this does not really advance the argument. The explanatory memorandum (and the second reading speech) made it clear that the trustees were to be subjected to the Crown Lands Act regime. The implications of this in terms of a trust in equity or a statutory trust were not addressed. They may not even have been perceived at the time.

68. [247]

    Turning now to the post-1867 vesting provisions, the 1893 Act provided for further land set aside under it for existing denominations to vest in the existing trustees, to be held “as burying grounds for burying the dead of their respective denominations”. This language was relevantly the same as that used in s 4 of the 1867 Act. The additional land set aside for the Church of England in 1889 was therefore held on the same basis as the land originally set aside in 1868 had been.

69. [248]

    In the 1901 Act, s 4 of the 1867 Act was replaced by s 12. That section provided:

70. [249]

    There was a slight difference in wording between the purpose as specified by the 1867 and 1901 enactments. The purpose for which the trustees would hold the land vested in them, as specified in the 1867 enactment, was the use of the land as a burial ground for burying the dead of their denomination. The purpose as stated in the 1901 Act was for “burying the dead”.

71. [250]

    This change created a potential difficulty for the argument presented by counsel for the Manager. It is a fundamental principle of the law of charitable trusts that the terms of the trust are fixed at the inception of the trust and cannot thereafter be changed, at least while it is possible to carry out the trust in accordance with its original terms: see General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515. Counsel recognised that, on the face of it, if a charitable trust in equity had been established for purposes defined by the terms of the 1867 Act, then there was a difficulty in explaining how those terms could, in equity, have changed.

72. [251]

    Counsel for the Manager sought to square the circle by arguing that s 12 of the 1901 Act, as a matter of construction, effectively picked up the additional words in s 4 of the 1867 Act. Counsel pointed out that, under both versions of the Act, the trustees were required to be members of the relevant denomination. The power to set aside land also referred to use by the denomination. Counsel also referred to the provision about burials being carried out by ministers of the denomination. Implicit in this was, so counsel submitted, that the burials needed to be carried out in accordance with the rites of the Church of England.

73. [252]

    Counsel for the Attorney-General stopped short of this step. Counsel accepted that the purpose of the trust, and its terms, could be varied by statute. In counsel’s formulation, the purpose for which the land was held had to derive from, and conform to, the terms of the governing Act.

74. [253]

    On this point, I think the argument for the Attorney-General must be preferred. As a matter of legislative effect, the terms of the 1901 Act, so far as they defined the purpose for which the land is to be held, were picked up and applied to land already vested under the 1867 and 1893 Acts. In that sense, the 1901 Act effected an amendment to the terms upon which the land was vested.

75. [254]

    And the fact is that the relevant vesting terms were different, albeit slightly, in the way in which they defined the purpose. The formulation in the 1867 Act required that the person to be buried was actually a member of the denomination in question. This would arguably not have extended to the burial of a person in accordance with the rites of the denomination, who was not actually, or was not known to be, a member of the denomination.

76. [255]

    It should be remembered that s 4 of the 1867 Act referred to the land being held by the trustees upon the “trusts and purposes” and “subject to the provisions” “of this Act”. Built into that formulation was the possibility, as happened in 1901, of the “trusts” or the “purposes” being amended. That is not necessarily a fatal contention that the land is held on the terms of a trust in equity. The Parliament can, if it chooses, vary the terms of any trust, whether public or private. But it is a relevant factor in addressing the construction question which is before the Court.

77. [256]

    I conclude that, on enactment of the 1901 Act, the Anglican Cemetery Land previously set aside and vested in the Anglican Board of Trustees was held by the Trustees on the new, slightly revised, purpose in s 12. The further parts aggregated to the Land in December 1935 were likewise vested in the Trustees by s 11 of the Act and thereafter held on the terms in s 12.

78. [257]

    The parcel added to the Anglican Cemetery Land by way of boundary adjustment in 1968 was potentially in a slightly different position. There was no equivalent provision expressly providing for that parcel to be vested in the Trustees. However, counsel submitted that the scheme of the legislation was that when land was transferred by way of boundary adjustment, it must necessarily have been intended that the land so transferred was divested from the existing trustee owners and vested in the receiving trustees. I agree with this submission, which I will not set out in detail.

79. [258]

    Section 12 of the 1901 Act remained unchanged until it was amended by the 1986 Act. The amendment replaced the reference to trustees “appointed under this Act” with a reference to trustees “appointed for the purposes of this Act”.

80. [259]

    Textually, this was a minor textual alteration which merely recognised that the trustees were, in future, to be appointed under the Crown Lands Act. But, as we have seen, that was, on the face of it, a potentially significant change. It appeared to open up the possibility that the Minister could require the trustees to use the burial ground lands for purposes which went beyond the original terms of the Necropolis Act, or even that the Minister could, by rededication or revocation, devote the land to other purposes entirely.

81. [260]

    But, as counsel for the Manager pointed out, there might still have been some debate about how far the adoption of the Crown Lands Act regime could, in this regard, go. In its post-1986 form, s 12 retained the wording which required the trustees to hold “for ever” the land vested in them “on the trusts and purposes” of “this Act” (meaning the 1901 Necropolis Act). Had the Minister sought, under the Crown Lands Act regime, to require the Trustees to use the Anglican Cemetery Land for some different purpose, there might have been questions about whether that could prevail over the express wording of s 12.

82. [261]

    Repeal: In the end, the later enactment of the 2004 Necropolis Act makes it unnecessary to go into such questions. That Act repealed s 12 of the 1901 Act entirely. Any obstacle which that section presented to the full sweep of Ministerial powers under the Crown Lands Act disappeared. The Act also repealed all of the dedication provisions under the 1901 Act, leaving the Crown Lands Act provision for dedication as the only remaining one. This clearly would have permitted the Minister to exercise powers of amalgamation, rededication or revocation.

83. [262]

    On this view, if any trust in equity subsisted at all after the repeal of s 12, it would properly have been characterised as a trust for purposes under the Crown Lands Act. But, on the arguments by counsel for both parties, this was not so. Counsel contended that, a true trust having been created prior to 2004, that trust remained unimpaired by the repeal of s 12.

84. [263]

    The first point to make about this contention is that it involves a distinction which is extraordinarily fine. It is concerned solely with whether relief was available in the equitable jurisdiction derived from the Statute of Elizabeth. It should be emphasised that, even if the Act did not create a charitable trust in the strict sense, that would not mean that no relief was available from this Court. On the authority of the Bathurst City Council case, there was still a statutory trust with statutory obligations enforceable against the trustee by injunction. And, on the authority of Fouche v Superannuation Fund Board, equitable remedies would still be available against defaulting trustees as fiduciaries (and against third parties), even if the trust were only a statutory trust.

85. [264]

    It must also not be forgotten that the question turns on the availability of relief under the Court’s administrative jurisdiction derived from Chancery. That jurisdiction has been supplemented by statute (currently, the Trustee Act 1925), but whether relief derived from those supplementary statutory provisions is available is a matter of construction of the provisions themselves. They may apply, or not apply, irrespective of whether the trust is a trust in equity or a statutory trust.

86. [265]

    It is not easy to see what practical role the Chancery jurisdiction could have played. That jurisdiction includes the power to settle property cy-près in the event of the trust becoming unworkable. But it seems inconceivable that the Court would have entertained an application to exercise that power in the face of the Minister’s power to revoke the relevant dedication and dedicate the Cemetery lands to other uses. Similar comments apply to the Court’s powers to direct the trustees to provide statements of account and to take other actions to execute the trust. The only practically possibility that springs to mind is the Court’s power to give judicial advice to the trustees (meaning the Chancery power; the availability of the statutory power under s 63 of the Trustee Act depends upon the construction of that section).

87. [266]

    Counsel for the Manager relied on the proposition that a charitable trust, once established, cannot fail or lapse. Counsel relied for that proposition on Mayor of Lyons v Advocate-General of Bengal (1876) 1 App Cas 91.

88. [267]

    The proposition is well established and was, as we have seen, part of the reasoning of the Full Court in the Clergy and Church Lands Corporation case (see [41] above). But in that case, grants had been made to the Corporation which, on any view, gave rise to a trust in equity. I think that there is a difficulty in applying the principle in the context of construing legislation, especially repealing legislation.

89. [268]

    The jurisdiction over charitable trusts which this Court exercises pursuant to the Statute of Elizabeth is ultimately designed to serve the public interest in the proper administration of charities benefitting the public. The reach of that jurisdiction has inevitably been carried along in the wake of statutory developments. This is clearly visible in the passage from the Scottish Cremation case which I have quoted at [214] above. Cremation services provided by a private trustee were seen as having the necessary quality of public benefit because they were analogous to services provided to the public generally pursuant to statute.

90. [269]

    This is, of course, entirely consistent with the view that equity is an appendix to the common law (see Sir Frank Kitto’s foreword to the first edition of Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies, reproduced in the fifth edition at page vi). But the argument in the present case involves reversing the process. The repeal of a statutory provision consequent upon a new statutory regime being applied is, according to the argument, read down so as to coincide with the supposed existence of an equitable institution which was ultimately dependent on the enactment of the statute in the first place. I am not sure that that is either jurisprudentially or historically sound.

91. [270]

    The consequences of counsel’s contention create further difficulties. What would be the purposes and the terms of trust which had supposedly been in existence, in equity, all along? Counsel for the Manager submitted, consistently with their submission about the amendment of the trust’s purpose, that the terms of the 1867 Act would, in effect, revive. But this seems a bizarre consequence to attribute to the 2004 statute. Would it result, for instance, in the Governor’s power to appoint the trustees being resurrected?

92. [271]

    The analysis by counsel for the Attorney-General would seem to result in the terms of the trust in equity being the terms of the Act as amended. But this only makes the nullification of the repeal statute more obvious. I do not think that either analysis is satisfactory.

93. [272]

    Counsel for the Manager pointed out that s 11, which provided for the vesting of the Land in the Trustees, was left unaffected by the repeal. That may be so, but s 11 on its own merely provided for the vesting of the legal title in the Trustees. It was s 12 which was said to have imposed a trust obligation on that legal title, and that section was repealed.

94. [273]

    Counsel also relied on s 30(1)(c) of the Interpretation Act 1987 which provides that the repeal of an Act does not affect any obligation or liability acquired or accrued under the repealed Act. But this provision preserves rights and obligations, not institutions. At most, if a trust had subsisted and there had been accrued rights or liabilities of the Trustees (for instance, a right of indemnity) then those specific rights and liabilities would have been preserved. The enactment would not have continued the trust itself.

95. [274]

    Counsel for each of the parties submitted that the explanatory memorandum contained no indication of any desire to abolish a trust. The memorandum relevantly stated that the purpose of the amendment was “statute law revision” and explained:

96. [275]

    Again, I think that this takes matters no further. There is no sign of any appreciation in the memorandum that there was a trust, let alone a trust in equity as opposed to a statutory trust.

97. [276]

    For these reasons, I think that the better view is that any trust in equity over the Anglican Cemetery Land ceased to exist when the 2004 Necropolis Act came into force. The same conclusion applies, a fortiori, to the situation following the 2009 Act. As already noted, after the passage of that Act there was simply nothing left of the Necropolis legislation apart from the bare vesting of the Land in the Trustees.

98. [277]

    Subsequent developments illustrate the problems which would arise if any other view were taken. The reorganisation undertaken by the Minister in April 2012 clearly proceeded on the assumption that the Cemetery was regulated by the Crown Lands Act and nothing else. Even more importantly, it clearly must have been intended by Parliament that the regulatory regime established by the Cemeteries and Crematoria Act 2013 would apply to the Rookwood Cemetery. Had the Necropolis Act still be in force when the 2013 Act was passed it would undoubtedly have been repealed along with the other specialist cemetery legislation which was repealed at the same time. Had a trust survived to that point, it probably would have been abolished by necessary intendment because of its inconsistency with the system of regulation established by the 2013 Act.

99. [278]

    It was common ground between the parties that, following the abolition of any trust over the Anglican Cemetery Land on 1 July 2018, moneys derived by the Manager from the operation of the Anglican portion of the Cemetery was governed by s 3.16 of the 2016 Crown Lands Act, and there was no room for any trust in equity over those moneys. But counsel for both parties contended that the proceeds of the Anglican Cemetery Land up to 1 July 2018 were subject to a charitable trust for the same purposes as the trust which, on their arguments, subsisted over the Land. That trust, so the argument ran, had not been abolished when the trust over the Land had been abolished, and therefore still subsisted.

100. [279]

     If property is held on the terms of a charitable trust, income derived from that property are likewise impressed with the terms of the trust: see Metropolitan Petar v Mitreski [2012] NSWSC 16 at [58] per Brereton J (as his Honour then was). I accept in principle that, if the Anglican Cemetery Land were subject to a charitable trust in equity for specified purposes, so too would the Proceeds derived by the Trustees from their ownership and use of the Land.

101. [280]

     In its application to a trust in equity, however, this principle must give way to any express provision of the trust deed, if there is one. In the present case, it can only take effect within the confines marked out, expressly or impliedly, by the Act.

102. [281]

     1867 Necropolis Act: As we have seen, s 14 of the 1867 Act made specific provision for identified sources of income deriving from the use of the Cemetery lands as burial grounds. It also placed a set of priorities according to which of the proceeds of those burial grounds should be expended.

103. [282]

     This was a departure from to the type of trust over the proceeds which would arise on the principle stated by Brereton J. In the first place, under such a trust, the principle would apply to all income derived by the trustees from the land, not merely specific items. Secondly, the trustees would ordinarily have full power to choose how to spend the proceeds, provided that the purposes for which they spent them complied with the terms of the trust.

104. [283]

     What this means is that, even if the Anglican Cemetery Land had been held on trust, it would not have been correct to see the Anglican Cemetery Proceeds as being held on trust for purposes formulated in precisely the same terms. Rather, the proceeds, if held on trust in equity, would have been held for the purposes, and according to the terms, specified in the Act, and specifically in accordance with the order of priorities laid out in s 14.

105. [284]

     Later Necropolis Acts: Section 14 of the 1867 Act was replaced by s 18 of the 1901 Act. By parity of reasoning with effect on the Anglican Cemetery Land (see [123] above), any trust for the Anglican Cemetery Proceeds thereafter was expressed in terms of s 18 of the 1901 Act.

106. [285]

     There was in fact little, if any, difference between the wording of s 18 of the 1901 Act and its predecessor. But a significant change was made by the amendments in the 1923 Act which introduced the joint committee to manage “common areas” of the Cemetery. The Trustees were thenceforth obliged to pay any levies imposed by the joint committee. No doubt specific statutory authorisation was provided for such expenditure in the 1923 Act because it might have fallen outside s 18. Effectively this was a modification of the “trust” under which the Trustees held the Proceeds. Later legislative amendment of the arrangements between the Trustees and the joint committee made further modifications of that “trust”.

107. [286]

     Again, by parity of reasoning with the Land, the effect of the amendments made by the 1986 Act was to subject the moneys, in the hands of the Trustees, to the provisions of the Crown Lands Act. In the case of the Land, there was, as we have seen, a potential obstacle to uses authorised under the Crown Lands Act but not by the provision of the Necropolis Act, because of the terms of s 12 of the 1901 Act. There was, however, no equivalent obstacle in the case of the Proceeds.

108. [287]

     One of the changes made by the 1986 Act was the repeal of s 18. This left no provision in the remaining parts of the 1901 Act which governed how the moneys received by the Trustees were to be applied (apart from meeting any levies imposed by the joint committee). So, for instance, there would have been an express obligation to use those moneys to pay for activities undertaken pursuant to a plan of management imposed by the Minister, whether or not such activities fell within the scope of s 12.

109. [288]

     It follows that, from this point forward, any trust over the Proceeds could only have been described in terms of use of the moneys for purposes required or permitted under the Crown Lands Act. Clearly, such a purpose would not necessarily be charitable for the purposes of the Statute of Elizabeth. In my view, any trust in equity over the Proceeds ceased at that point.

110. [289]

     This conclusion in theory leaves open the question whether the Anglican Cemetery Proceeds (and the Anglican Cemetery Land) as they stood at the commencement of the 1986 Act (1 April 1988) were subject to a trust in equity.

111. [290]

     On the commencement of the 1986 Act, s 37VV of the 1913 Crown Lands Act vested the Land and Proceeds in the new Anglican Board of Trustees appointed by the Minister, but s 37VV(8) specifically contemplated the possibility that the outgoing Board of Trustees might have a right of indemnity which could be exercised against that property. On the other hand, as already mentioned, the presence of the provisions such as s 37VV(8) may be explained on the basis that land under the Crown Lands Act might, unlike land under the Necropolis Act, have been the subject of a grant. And the existence of such a right of indemnity would not necessarily be inconsistent with a general intention that the moneys should be applied to the new purposes rather than held in “trust” for the old purposes. Why else, after all, would such a transfer be made?

112. [291]

     In the end, I do not think it is necessary to answer these questions. It would be a Herculean task to try to identify the extent to which, if at all, the assets now held by the Manager might be traced back to the Anglican Cemetery Proceeds as they stood on 1 April 1988. It is vanishingly unlikely that any question could now arise about a right of indemnity of the Anglican Board of Trustees holding office prior to 1 April 1988 out of such assets.

113. [292]

     Repeal: Again, by parity of reasoning with the Land, any trust in equity over the Proceeds which survived the 1986 Act would have been extinguished by the repeals in the 2004 Act, or, failing that, by the repeal of the remainder of the Necropolis Act in 2009.

114. [293]

     2016 Crown Land Act: It remains to deal with the parties’ submissions about the effect of the reconstitution of the RGC Trust Corporation as the Manager on 1 July 2018, which I will consider for completeness.

115. [294]

     Schedule 6 to the 2016 Act deals with the transfer of assets, rights and liabilities. Clause 3 relevantly provides:

116. [295]

     The Act’s savings and transitional provisions are found in schedule 7. Clause 11 deals with the reconstitution of reserve trusts as statutory land managers upon commencement of the Act. The RGC Trust Corporation was what is described as an “administered reserve trust”, as it was being managed by an administrator as at the commencement date. The relevant provisions of cl 11 are:

117. [296]

     Counsel for the Manager submitted that the effect of these provisions was clear. Clause 11(7) of sch 7 made sch 6 applicable to the “transfer” between the Corporation and the Manager. Clause 3(1) of sch 6 had the effect that liabilities, including potential liabilities, of the Corporation passed to the Manager. If a trust of the Proceeds subsisted at that point, the trust obligations passed to the Manager.

118. [297]

     But, as counsel for the Attorney-General pointed out, it is not clear that sch 6 was applicable. By sch 7, cl 11(4), the Manager was to be taken for “all purposes” as the same legal entity as the RGC Trust Corporation. It was therefore inapposite to speak of a “transfer” between the Corporation and the Manager, and sch 7, cl 11(7) did not apply.

119. [298]

     Counsel further pointed out, however, that this was not inconsistent with the continuation of trust in equity over the Proceeds which already subsisted as at 1 July 2018. Schedule 7, cl 11(2) only abolished any trust over the Land and conspicuously failed to deal with the Proceeds. And although cl 11(8) referred to the non-continuation of obligations “in relation to” the Land, this fell far short of being a clear abolition. It was expressed to be in order to avoid doubt. In the context, the words “in relation to” should not be read as extending beyond obligations attaching to the Land.

120. [299]

     I accept these submissions, so far as they go. If a charitable trust subsisted over the Proceeds on 1 July 2018, I agree the transitional provisions did not expressly abolish it. For reasons already given, however, the statutory scheme may have done so by necessary intendment, subject perhaps to any right of indemnity of the former trustee. But as I have concluded that any such trust, if it ever existed, had ceased to do so well before 1 July 2018, it is not necessary to consider this further.

121. [300]

     What the argument does point up is that it would be desirable if the question were expressly addressed in the Crown lands Act, as it has been for land converted into Crown land under the Act (s 1.10(2)), and for the future proceeds of such land (s 3.16). Indeed, there is a wider legislative gap. Since the passage of the 1913 Crown Lands Act, there has been an express provision that, upon revocation of a previous dedication of land under the Act, not accompanied by some further rededication, the land vests in the Crown. There is however no equivalent provision for moneys and other assets derived from the land prior to the revocation. Although this gap is not a problem in the present case, it may be something which the Parliament ought to deal with for the future.

Administration questions

1. [301]

   In the light of the conclusions I have reached, there is no need to address the questions posed by the Manager on specific questions about administration of the assets it holds. Indeed, there is a question about whether the Court has jurisdiction to give judicial advice on those questions.

Conclusions and orders

1. [302]

   I have concluded that:

   1. (1)

      the Anglican Cemetery Proceeds are not the subject of a charitable trust for denominational purposes, but rather fall to be administered pursuant to the terms of the Crown Lands Act;

   2. (2)

      the specific questions posed concerning the administration of the Proceeds do not need to be decided (assuming the Court has jurisdiction to do so).

2. [303]

   It seems to me that the proceedings should probably be dismissed. But I will adjourn them until early in the next Term to enable the parties to consider this judgment. The parties are also invited to identify any errors or omissions in my reasons.

3. [304]

   To some it might appear disturbing that moneys built up over more than a century from the operation of a religious burial ground should now be capable of being used for purely secular purposes. But that does not mean that that will happen. As I have tried to demonstrate in this judgment, the way in which those moneys are used in future is very much a matter under the ultimate control of the Minister. There is no reason to think that the Minister will be insensitive to the issue. It might even be a situation where Parliament should intervene to strike a balance between the competing factors, and clarify the law about what is to happen with assets left over when the public purpose for which Crown land is being used ceases or changes in its nature.

4. [305]

   The orders of the Court are:

   1. (1)

      Adjourn the proceedings to 9:30 am on 3 February 2023 or such other time as may be arranged with my Associate.

   2. (2)

      Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.