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The truth about the Brigalow Corporation

This is the truth about the creation of the Brigalow Corporation. In this post I will also try to debunk some of the myths behind David Walter's conspiracy theories about how he believes it came to take over all the land in Queensland.

The Brigalow Lands Development Scheme in Queensland began in 1962 and involved the clearing and development of brigalow scrub land for producing beef cattle and other primary products. Originally, about 1.73 million hectares in the Fitzroy River Basin were to be developed. In 1965 the area of the Scheme was increased to about 2.01 million hectares, and in 1967 the area increased to about 4.52 million hectares with an extra 2.51 million hectares in the McKenzie-Isaacs River Basin being included in the Scheme.

The Land Administration Commission was constituted as a corporation under the Brigalow and Other Lands Development Act 1962 for the purpose of administering the Brigalow Land Development Trust Fund and Agreement.

Commonwealth funding was provided to the Land Administration Commission for subdividing and allocating blocks of land to settlers, and for the clearing of brigalow and the provision of fencing, yards, dips and watering points. Loans were provided by the Commission to lessees for clearing and development of the land.

About 250 lots were made available for lease by way of public competition by either public auction or ballot. Once the land had been developed, the lessees were able to apply to convert their leases to freehold.

In 1992, when the Land Administration Commission was abolished, the Brigalow Land Development Trust Fund and Agreement were still operational, therefore it was necessary to replace the Land Administration Commission with an appropriate body. This replacement body was called the Brigalow Corporation, and the sole reason for its existence was to carry out the function of making advances under the Brigalow Scheme.

This link is to the explanatory notes for the amendment to the Land Act 1962 which explains just what the Brigalow Corporation was established for. The Chief Executive of the then Department of Lands was the sole person who comprised the Brigalow Corporation.

http://www.legislation.qld.gov.au/Bills/47PDF/1992/LandsLegislation...

As all the loans under the scheme have now been repaid, the Brigalow Corporation was abolished and the Land Act 1994 was amended in February 2009 to remove the provisions that related to it.

Now for the myths in the EnviroWild letter to the Governor General October 2007,

http://www.nickmaine.info/Documents/beware_criminals_at_work.htm

“On 29th January 1999 the Governor of the State of Queensland, the Representative of the Crown in Queensland was moved into the Constitution Act 1867 as a parliamentary secretary and a public official.”

The only reference in legislation I can find that has Governor and Parliamentary Secretary in the same section is in Section 24(1) of the Constitution of Queensland Act 2001 (CQA) where it says the Governor in Council may appoint members of the Legislative Assembly as Parliamentary Secretaries. Section 26(3) also says the Governor in Council, at any time, may end the appointment.

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ConstofQA01.pdf

As only members of the Legislative Assembly may be appointed as Parliamentary Secretary by the Governor, how the conclusion was reached that the Governor is a Parliamentary Secretary is totally beyond me.

“I refer to the following Acts - the Reprints Act 1992, the Statutory Instruments Act 1992, the Legislative Standards Act 1992. These Acts were used in conjunction with the Constitution of Queensland 2001, section 92 to create the corporation Government of the State and then further to repeal those Acts under section 95 of that Constitution. Those Acts moved back in time, one may say like the Tardis, reprinting, removing the Crown out of all Acts as far back as the Magna Carta then reprinting back to the Australia Acts (Requests) Act 1985 and removing all the positions as cited in that Act.”

Section 92 did not create the corporation Governor of the State, it merely says that references in other legislation, as repealed by the CQA, to the Legislative Council are taken to refer only to the Queen and the Legislative Assembly.

Section 95 says that the laws mentioned in Schedule 3 of the CQA are repealed and Imperial laws in schedule 4 are repealed so far as they are part of the law of Queensland.

The reason these laws are repealed is because all the required parts of this Acts are now contained in the Constitution of Queensland Act 2001.

Nothing that was contained in those repealed Acts that was still required has been removed.

“By using the Australia Acts (Request) Act 1985 section 12 in conjunction with the other three State Acts, the Acts reprinted Queensland into a corporate State. In conjunction with the Acts Interpretation Act 1954 section 15DA(2) which allowed for the automatic commencement and assent of any Act that had been laying dormant for a period of twelve months, Acts which were framed to create the corporate State of Queensland in 1992, 1993 and 1994 were reprinted by the Reprints Act 1992 which is under the Department of the Premier.”

Legislation that is passed by Parliament has to receive royal assent by the Governor before it can commence. The legislation can say that it commences on the day of assent, or on a date that mentioned in the legislation, or on a date that is published later in a regulation. Legislation automatically commences 12 months from the date of assent, if another date is not given for it to commence. Within the first 12 months a regulation may extend the period before commencement to not more than 2 years after the assent day.

When an Act is reprinted it is because the Act was amended, and the date of the reprint is the date of commencement of the amendments, either the date of assent or the date of the regulation that commenced, or the automatic commencement date. There is no hidden agenda in the term “Reprinted as in force on …date…” on the front page of the legislation.

If the legislation says that it “binds the State” (and many do, some even say they bind the Commonwealth where it can), then the State and all its entities that represent it are bound by the legislation, and must comply with it just like everyone else.

“As the corporation of Queensland, when it was formed, had no assets, it had to acquire assets if they wished to borrow. Under the Queensland Government (Land Holding) Amendment Act 1992, they immediately took all the Crown land and estates in fee simple registered under the Property Law Act 1974 as equity for the corporation without compensation…”

Up until 1992, the State of Queensland (as an entity) could not hold freehold title to land in Queensland. Land that was required for government use had to be set aside as a reserve under the Land Act 1962. In 1992, the government decided that it was more appropriate for land that was required for operational government use, such as schools, hospitals, police stations and so forth should be held as freehold land rather than as reserves under the Land Act because of the restrictions that Act placed on the use that could be made of the land outside of the gazetted use.

So the statement that they “immediately took all the Crown land and estates in fee simple registered under the Property Law Act as equity for the corporation” is patently wrong. All reserves and all vacant Crown land at the time the State was given the power to hold freehold land was already the property of the State and it could now be held under freehold title, and progressively since that time government departments have been obtaining freehold title over all their reserves. Incidentally, ownership of land is not registered under the Property Law Act, it was registered under the Real Property Act 1861, now the Land Title Act 1994.

There was no power given to take control or ownership of land that was in the ownership of anyone else. The only power to take land is under the Acquisition of Land Act 1967, and compensation must be paid to the owner for the land taken.

“The Acts Interpretation Act 1954(Qld) defines property both present and future, owned by you as an 'individual and a corporation' as subject to a statutory instrument only and that statutory instrument is not only applicable to your land, but all property as you, as a person now own, as opposed to the previous common law indefeasible deed of grant in fee simple, only an interest in your land under a statutory title. All land, including private land held previously in the common law estate of inheritance in fee simple by private individuals, is now held by the corporation of the State of Queensland known as the Brigalow Corporation.”

The State of Queensland is a corporation that has all the powers of any other individual or company in Australia, including the power to buy and sell land freehold land.

I appears to me the fact that the Brigalow Corporation "represented the Crown" and "had all the privileges and immunities of the Crown" - a common occurrence for some government bodies and not just for the Brigalow Corporation – seems to be the basis for this claim. It has been interpreted to mean that the Brigalow Corporation replaced the Crown, which quite clearly it didn’t. . A search of much of the Queensland legislation will reveal all number of bodies “represent the Crown”, though these days they represent the State and have all the privileges and immunities of the State. The change from “Crown” to “State” was a change of name only. The Governor still represents Her Majesty.

The term “privileges and immunities of the State” relate to such things as being exempt from State taxes and charges such as Stamp Duty and Land Tax, payment of registration fees, that sort of thing.

Every freehold land owner in Queensland still holds full title to their land. When land was granted by the Crown in fee simple it didn’t mean it gave it away absolutely. It meant the land was granted by the Crown who retained certain rights over it – the right to resume it, or to pass laws relating to how the land may be used.

Those laws have not taken our land away from from our ownership. They have just placed restrictions on how we may use our land.

“The 3 October 2007 High Court of Australia rulings that removes all land ownership from the people of Queensland and puts it into the hands of the State Government.”

The High Court ruling on 3 October 2007 was the dismissing of applications for special leave to appeal against the orders of the Court of Appeal of the Supreme Court of Queensland refusing leave to appeal a penalty for starting an assessable development without a development permit (clearing of native vegetation). The Court of Appeal rejected the applicants' arguments that the Integrated Planning Act did not apply to land held in fee simple and that the land was not comprehended by the term "freehold land" in the Act.

Conclusion:

It would appear that the belief the Brigalow Corporation has removed land ownership from the people of Queensland comes from the restrictions on tree clearing on freehold land brought about by the Vegetation Management Act. The numerous court cases relied on to support that belief are all founded on either prosecutions for tree clearing without a permit or appeals against the refusal of an application for tree clearing.

The people who started the conspiracy theories have taken a few words from a number of court judgements and relied on them for support of their beliefs that their property rights have been removed. They have then gone searching for something to support that belief, and fell upon the creation of the Brigalow Corporation in 1992. The fact that the Brigalow Corporation "represented the Crown" and "had all the privileges and immunities of the Crown" - a common occurrence for some government bodies and not just for the Brigalow Corporation - has been taken out of context and they have interpreted it mean that the Brigalow Corporation replaced the Crown, which quite clearly it didn’t.

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Replies to This Discussion

Permalink Reply by Carol Petith on January 26, 2010 at 12:27pm

Lynette

I live in NSW but the following statement made by you would apply to all land I presume.

Every freehold land owner in Queensland still holds full title to their land. When land was granted by the Crown in fee simple it didn’t mean it gave it away absolutely. It meant the land was granted by the Crown who retained certain rights over it – the right to resume it, or to pass laws relating to how the land may be used.
Those laws have not taken our land away from from our ownership. They have just placed restrictions on how we may use our land.
Could you point me to where this is stated on my title deeds. The right to resume it, or to pass laws relating to how the land may be used.
Where did the Crown retain those rights if they are not specified on my title deed.

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Permalink Reply by Lynette McDougall on January 26, 2010 at 1:37pm

That is what "fee simple" land is - the State when it grants land retains the right to pass laws relating to how it may be used.

This http://en.wikipedia.org/wiki/Fee_simple will explain it far better than I can.

The state grants fee simple land, but retains the right to pass laws regarding its use, to collect taxes (Land Tax).

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Permalink Reply by Carol Petith on January 26, 2010 at 2:07pm

Lynette
Would this also apply to old system titles?

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Permalink Reply by Lynette McDougall on January 26, 2010 at 4:45pm

Hi Carol

I am from Queensland and I have no knowledge of old systems titles in New South Wales, but it would be my understanding that as all land in Australia would have been originally granted by the Governor of whatever State the land was in, then yes - it would apply. The Govenor had the power to grant land in fee simple, and the government that granted it retained the power to control its use.

When Queensland became a separate colony in 1859, all the deeds of grant for land granted in what was now the colony of Queensland were sent from the New South Wales Registrar General to Queensland. In 1861, the Real Property Act was proclaimed and all freehold land was registered in the Titles Register. Old system land (which would have been all the titles that existed prior to 1861) were over the years converted to Torrens Titles, which provided for a much more streamlined transfer and mortgage registration system. There is no old system land left in Queensland - it has all been converted to the Torrens system and is recorded in the Automated Title System managed by the Registrar of Titles.

But regardless of whether you have old system titles or Torrens Titles, the State still has the power to control use of that land by statute.

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Permalink Reply by Carol Petith on January 26, 2010 at 5:14pm

Lynette
Thanks for that reply. So are you saying that before the introduction of Torrens Titles System that land held via Old System Titles would have been treated the same way regardles of the title. By that I mean that the right to resume etc would apply.

Would there be any old documentation to show that the Government retained this right to control the use of that land? Where would this be? Would you know?

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Permalink Reply by Lynette McDougall on January 26, 2010 at 6:30pm

As the link to the article in provided above about the meaning of fee simple shows, the grantor of the land (the State, the Crown or whoever) retained the power to make laws about the land and to resume it. That would be regardless of the form of title that issued.

Old system land is really the same as Torrens Title land. Torrens merely simplified the way land dealings were recorded. Under old system land, you had to keep the deed, and the transfer document that transferred it to you when you bought it from the original owner, and then when you sold it, the new owner had to keep everything and so on and so forth. And if you mortgaged it, you handed everything to the mortgagee, and hoped they kept it all together. After a few transfers, you could end up with the original deed of grant, 3 or 4 transfer documents and it could very easily get confused and documents lost. Very difficult to prove ownership.

With the Torrens system, the copy of deed of grant held by the titles registry when it was enrolled became the method by which transfers and mortgages and so forth with registered. The title document was stamped with a little box stamp, on which was written the details of the mortgage, or when it was transferred, details of the new ownership. All of this was kept in a central register and therefore, everyone knew where to look to see who owned what land.

It was a much simpler system, and the government guaranteed that if you registered you land with the Torrens system and lodged transfers for registration, you were guaranteed your title. With old system land, if you lost the document that transferred the land to you, the previous owner could come along and claim it back.

So old system land was granted in fee simple by deed of grant, and it is subject to the same rules as Torrens title land.

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Permalink Reply by Lynette McDougall on January 26, 2010 at 6:32pm

I would like to, with your indulgence, for you to reference the attachment and quite specifically to [LH] line 272 which refers to the Referendum section, or if you like, Entrenched Provisions of the 1867 Constitution. Could you tell us how it was possible for section 14 to be deleted between the Reprints ?? Could you also point to the ‘Amendment’ Act that proclaims this deletion ?? Why was a referendum not called to enact this deletion ?? Would, in your opinion, this deletion provide for the “Movement” of the Governor given that the position of “Governor” was no longer an “Entrenched Provision” ?? The amendment act specifically for this I am having trouble finding.

Section 14 is still there, it just appears in a different position on the table – on the right in red it is line 177, on the left in blue it is line 179. It’s all about appointment of certain public service positions, department heads and the like.

Line 272 says that there is no provision to remove the position of Governor without a referendum, not any public service position. Therefore, as we have not had a referendum, the position of Governor still exists….

With your further indulgence, would you now reference [LH] Line 216. This directly affects landowners and you will notice that the ‘Preamble’ or unnumbered section for section 40 of this Constitution has been deleted between the reprints. It would appear to me that this preamble is some sort of crown guarantee for the land sold by the crown into private ownership. Again, could you point to the ‘Amendment’ Act that enables this deletion ?? And, do you think it unimportant, in the Constitutional context, that this preamble was deleted ??

This refers to contracts made BEFORE the Constitution Act was proclaimed, because it said not to affect any PREVIOUS contracts of Her Majesty respecting any such lands…

Additionally, I’m not entirely sure that you know exactly what “Governor in Council” means. For example, most Acts of Parliament make a provision which says – “the Governor in Council may make Regulations not inconsistent with this Act” [or something similar] – Are you implying that the “Governor” actually makes any “Regulations” attached to Acts ?? and; if the Governor does not make any regulations, who or what assumes the ‘Role’ of the Governor to make any such regulations so he or she can be “In Council” ?? further; If the Governor’s role can be ‘Assumed’ this way, in what other ways can the Governor’s role be assumed and by whom ??

I knew perfectly well what the Governor in Council means and what the role undertakes. The Governor in Council approves Regulations submitted to her following the recommendation of Cabinet. The Governor signs an Order in Council on the recommendation of Cabinet that approves the Regulation. She also signs an Order in Council that approves the issue deeds of grant, and signs those deeds of grant, before they get delivered to the Registrar of Titles for enrolment in the Titles Registry.

What do you think Governor in Council means?

You quote from the 2001 Queensland Constitution in all its glory, is it not a fact that the 1867 Constitution is in force as well ?? And; Why does the State of Queensland have 2 Supreme Court Acts or is this of little importance ??

Yes the Constitution Act 1867 is still in force, and it needs to be because of what it contains – the power of the Governor which can only be removed by way of a referendum. The fact that there are 2 Supreme Court Acts is also of little importance.

Finally, would you reference [RH] lines 312 to 329. What is your opinion on these inclusions ??

That is a reference to the power of the Governor in Council to appoint Parliamentary Secretaries (assistant Ministers) which is also contained in Section 24 of the Constitution of Queensland Act 2001. Seems pretty clear cut to me.

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Permalink Reply by Suzi Lilburn on January 26, 2010 at 7:24pm

Interesting Lynette. Doesn't land history tell us that the Queen owned the land and that the governor-general sold it into private hands as her representative.

Your comments indicate that the govt themselves own the land and sell it into private hands under "free and common socage", at the same time retaining "socage."

Wouldn't that be called a lie, and wouldn't that lie render a contract void?

I am also quite interested in the fact that when I copied wikipedia's information on both Fee Simple AND Torrens Title over 2 years ago - it carried a completely different meaning.

But then wikipedia allows anyone to change it, and I did note that wikipedia's data on fee simple and torrens title had been changed on - surpise, surprise - December 29 2009!

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Permalink Reply by Lynette McDougall on January 26, 2010 at 7:40pm

The governor-general can't sell any land into private hands. It's the State governors sold the land into private hands as her representative, because only the States have the power, under their Constitutions, to dispose of the waste lands of the State (or colony as they were before 1901). The position of governor-general would not have come into place until Federation in 1901. Even the federal government has to go cap in hand to the States to ask for State land to be granted to them, though they do have the power under the Commonwealth Acquistion of Land Act to acquire it from the State.

The State government sells its vacant land on behalf of the Crown - as each of the deeds of grant in Queensland have the words "Elizabeth the Second by the Grace of God" on them. The governor signs them on hehalf of Her Majesty - the wording is along the lines of "Witness our wellbeloved ............, Governor of our State of Queensland this day of whatever in the whatever year of our reign. "The State" has replaced "The Crown" in the terminology in Queensland, however deeds are still signed by the representative of the Sovereign, the Governor of Queensland, as appointed by the Queensland Constitution.

Wikipedia is a user update web site, I know that. Perhaps you could highlight what the difference is between when you visited there 2 years ago and what is there now. I would love the opportunity to compare it. I don't see any conspiracy in the update date of December 29, 2009. I can assure you it wasn't me. I wouldn't have a clue how to. By the way, the page when I viewed it just now was said to have been last updated on 25 December 2009. Hmmmm....

The concept of fee simple and Torrens Title as explained in Wikipedia is how I have always believed it to be.

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Permalink Reply by Suzi Lilburn on January 26, 2010 at 8:12pm

The High Court has ruled in a case commonly called "1923" as follow:“Real Property Act 1900 provides by s13, as follows:
(1) All waste (which means crown) lands……when alienated in fee (meaning sold), be subject to the provisions of this Act.
(2) the grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed.”

“It will be observed that it is only when land in this class is ‘alienated in fee’ by the Crown that it becomes subject to the provisions of the Act (in other words its got to be sold first BEFORE it can be registered under Torrens Title)………Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is not authorized by the real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. Unless……there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land.”

“His action is a State service, not an individual service.”

So if as you say, the government retain all these rights to keep for themselves so much of our ownership, is it that they make that claim through the Torrens Title registration, which is not an ownership registration, but a registration of the ownership?

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Permalink Reply by Lynette McDougall on January 26, 2010 at 8:28pm

Because the land is granted in fee simple [see the explanation on Wikipedia of what fee simple means and the rights retained by the grantor], the grantor (the Sovereign through the Governor at the request of the Executive Council via an Executive Council Minute submitted by the Minister administering the State government department that administers the disposal of the waste land - Crown land - State land whatever it is now called) retains the right to resume the land (proclamations resuming land are also signed by the Governor), and to make laws about how the land can be used. It is the Governor who signs the laws on behalf of the Sovereign, and it is the Governor on behalf of the Sovereign who grants the land, then as the Sovereign grants the land and signs the laws of the State (through the Governor appointed by the Sovereign), the State, with the approval of the Governor on behalf of the Sovereign, can pass laws about how the land may be used.

Torrens title registration is how all freehold land in Queensland is now registered. Other States have differ. I can only comment on what happens in Queensland.

When the Governor signs the deed of grant (only one copy is now signed - duplicates were done away with when the computersed Automated Title System (ATS) was created back in 1994) it is delivered to the Registrar of Titles, who creates an indefeasible title in ATS. It is that title that is then subject to all the laws of the State. The State can resume all or part of that title. Through the planning laws it can dictate what you can and can't do with that land.

Incidentally, all land in Queensland is now registered in ATS - leasehold, reserves, unallocated State land, state forests, national parks. The leasehold and reserves registers were included in 1995 (administered under the Land Act 1994); unallocated State land and state forests and national parks a couple of years ago.