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NEWS

 

Selwyn Johnston

INDEPENDENT COMMUNITY REPRESENTATIVES'

ADVOCATE

(Cairns... Far North Queensland)

 

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Sincerely,

Selwyn Johnston

 

One person, with the support of the community, can make a difference

 

THE BRIGALOW CORPORATION

THE TRUTH and THE MYTHS

 

INDEX

 

BACKGROUND

SUMMARY

REFERENCES

CONCLUSION

 

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BACKGROUND

 

The Brigalow Corporation was established in 1962 [i] to administer the Fitzroy Brigalow Land Development Trust Fund and Agreement. Until 1993 the Brigalow Corporation was known as the Corporation of the Land Administration Commission. [ii]

 

Under the Fitzroy Brigalow Land Development Agreement the Commonwealth agreed to provide the State of Queensland with financial assistance to develop approximately 4,976,000 acres of land in the Fitzroy River Basin. The development proposal involved terminating existing tenancies and re-subdividing the area into between 250 and 400 blocks of land. Each existing leaseholder was to be offered a new title in respect of part of the leaseholder’s existing holding on the condition that the block be developed to minimum standards.

 

At least one quarter of the remaining blocks were to be sold by auction with the condition that they also be developed to minimum standards. The remaining blocks (of less than 10,000 acres) were to be leased as purchase leases on the condition they also be developed to minimum standards. The State could offer to develop and partly stock each block on behalf of the lessee subject to the repayment to the State of the cost of the development and stocking.

 

The lessee also had the right to purchase the block when it had been developed to the minimum standard and all money had been repaid to the State.[iii] The Corporation could make advances to a lessee for certain purposes. [iv]

 

Land Administration Commission Report – 1977...

 

The Report of the Land Administration Commission for the year ended 30 June 1977 provided the following information about the Fitzroy Brigalow Land Development Trust Fund:[v]

 

The total expenditure from the Fund to 30th June 1977 was $19,861,439. Expenditure of $2,245,793 for the period 1st July 1976 to 30th June 1977 included repayments to the Commonwealth of $1,765,900. Over the same period collections from all sources totalled $2,829,351 including advances from the Commonwealth of $1,909,120.

 

There are now no further advances to be drawn from the Commonwealth.

 

The Fund balance as at 30th June 1977 is $1,792,966.

 

Now that all the land acquired for the purpose of the Scheme has been allocated and practically all development loan funds have been expended, the major administrative function involves the collection of loan repayments from settlers and the repayment of Commonwealth Government loans.

 

Review of statutory offices, formation of the Brigalow Corporation – 1993...

 

In 1993 a number of statutory offices were abolished including the Land Administration Commission. [vi] The powers of the offices were assigned to the chief executive of the relevant department. [vii] As the Fitzroy Brigalow Land Development Trust Fund and Agreement were still operational, it was necessary to replace the Corporation with another body. [viii] The replacement body was the Brigalow Corporation. The Land Act 1994 states that ‘a reference to the Corporation of the Land Administration Commission in any Act or in any document is taken to be a reference to the Brigalow Corporation.’ [ix]

 

The Land Act 1994 declares the Brigalow Corporation to be a ‘corporation sole.’ [x] A corporation sole is a corporation consisting of only one person and that person’s successors to a particular position. [xi] In the case of the Brigalow Corporation this is the Chief Executive of the Department of Natural Resources and Water. [xii] Other examples of corporations sole include the Queensland Treasury Corporation, [xiii] the Public Trustee of Queensland [xiv] and the Co-ordinator General. [xv]

 

At 1 July 1995 [xvi] all amounts in the Fitzroy Brigalow Land Development Trust Fund became part of the consolidated fund and all amounts to be paid to or from the Fitzroy Brigalow Land Development Trust Fund were paid to or from the consolidated fund. [xvii]

 

In 2008 the Department of Natural Resources and Water confirmed that the Brigalow Corporation continued in existence because a small number of advances made by the Corporation to lessees under the Fitzroy Brigalow Land Development Agreement were still outstanding. The Corporation had the power to receive these repayments and pay the money into the consolidated fund. [xviii] The Department confirmed that the last loan was repaid in November 2005, making the Brigalow Corporation redundant. Consequently, the Land Act 1994 would be amended in due course to remove all references to the Corporation. [xix]

 

In 2008 the Department of Natural Resources and Water confirmed that the process was underway to have the provisions relating to the Brigalow Corporation removed from the Land Act 1994.

 

In February 2009 section 43 of the Land and Other Legislation Amendment Act 2009 removed Chapter 8, Part 7A (Brigalow and other lands development provisions) from the Land Act 1994. Section 514 of the Land Act 1994 now relates to the closure of the Brigalow Corporation.

 

Section 514 states: Closure of Brigalow Fund...

 

(1) All amounts in the Fitzroy Brigalow Land Development Trust Fund established under the Brigalow and Other Lands Development Act 1962, immediately before the commencement is transferred to and becomes part of the consolidated fund. [xx]

 

(2) On and from the commencement, all amounts to be paid to or from the Fitzroy Brigalow Land Development Trust Fund must be paid to or from the consolidated fund. [xxi]

 

Court Cases...

 

A group of people, who opposed the State’s vegetation management legislation on the basis that it adversely affects the rights of landowners, claimed that all land in Queensland is now owned by the Brigalow Corporation.

 

Information prepared by Farmers Land Ownership Rights in Australia (FLORA) claims that: [xxii]  

". . . the government of Qld has moved all the crowns land AND all crown land that was sold (fee simple) into the Brigalow Corporation through the Land Act, Land Title Act, Property Law Act etc, etc, etc. ”  

The Save Australia website [xxiii] states that:

"OUR STATE IS NOW A CORPORATION

 

It is called The Government Corporation, or the 'Brigalow Corporation'. The Queensland Government is no longer a governing body, but instead [has] made itself a business corporation. Just read the letter heads [sic] on paperwork you receive from any State office. They called the new business of governing the land of the people of Queensland the "Brigalow Corporation" under which all the land in our state has been removed from our ownership to be used as collateral for this corporation?"

A number of these websites refer to High Court decisions about the Brigalow Corporation; however, the High Court decisions referred to are applications for special leave to appeal against decisions relating to the imposition of a penalty for clearing native vegetation on freehold land without a development permit. These decisions do not relate to the Brigalow Corporation. The applicants argued that the requirements did not apply to freehold land held in fee simple. The High Court rejected three such applications [xxiv] confirming decisions of the Queensland Court of Appeal. [xxv]

 

As District Court Judge Nase of the Queensland District Court stated in Glasgow v. Hall: [xxvi]

 

There can be no doubt the grant of power to the State to make laws for the ‘peace, welfare and good government’ of the State includes the power to regulate land clearing in the State. The power to regulate the use of the land does not deny Mr Glasgow’s title to the land he purchased. As White DCJ commented in an earlier case, although the ownership of the land is alienated, the land itself is not alienated from the sovereign State of Queensland. Just as the State has power to prohibit the use of Mr and Mrs Glasgow’s land to grow illegal drug crops so it has the power to regulate land clearing. Both powers derive from the authority of the State legislature to enact laws for the ‘peace, welfare and good government’ of the State.

 

Property rights and fee simple land holdings...

 

The power to regulate the use of land does not deny title to land purchased in fee simple. [xxvii] The State’s power to regulate land use derives from its law-making power. [xxviii]

 

The Property Law Act 1974 provides for the creation and existence of freehold estates in fee simple. [xxix] Under the Land Title Act 1994 the registered owner of land is defined as ‘the person recorded in the freehold land register as the person entitled to the fee simple interest in the lot.’ [xxx]

 

According to the Department of Natural Resources: [xxxi]  

Freehold land is the most complete form available for land alienation from the State.  It is purchased from the State.  Ownership by the titleholder is not absolute however, as the State is empowered to withhold certain rights, such as the right to any materials or petroleum. In addition, use of the land may be controlled by legislation (e. g. the Local Government Act 1993). 

 

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SUMMARY

The Land Administration Commission administered the Fitzroy Brigalow Land Development Trust Fund and Agreement.

In 1993, the Brigalow Corporation replaced the Land Administration Commission with the Commission’s powers being given 
to the Chief Executive of the Department of Natural Resources and Water
.  

By 2005 all outstanding monies were repaid to the Brigalow Corporation

In 2009 the Land Act 1994 was amended to reflect the closure of the Brigalow Corporation.  

Community group references to High Court decisions relate to vegetation management penalties and are not related to the 
Brigalow Corporation, despite assertions to the contrary


Assertions that Queensland is owned by the Brigalow Corporation are inaccurate

The common law continues to be part of Queensland law

Private individuals continue to be able to hold land in fee simple  

 

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CONCLUSION 

The above information negates the assertions of 'uninformed' groups and individuals who claim the current (2010) existence of the Brigalow Corporation. Those 'doom-sayers & alarmists' who continue to espouse such nonsense must be treated with the contempt they rightly deserve. 

It would also appear that the purveyors of misinformation regarding the Brigalow Corporation are unaware that, '... you may fool some of the people some of the time but you cannot fool all of the people all of the time'! 

AND, the old adage, '... a little bit of knowledge is a dangerous thing', certainly applies to the authors of the Brigalow Corporation myth! 

REFERENCES

[i] Brigalow and Other Lands Development Act 1962 (Qld) – repealed in 1995 following the relocation of certain sections to the Land Act 1994 (Qld) 

[iii] Brigalow and Other Lands Development Act 1962 (Qld) Second schedule

[iv] Brigalow and Other Lands Development Act 1962 (Qld) s. 23

[v] Queensland. Report of the Land Administration Commission for the year ended 30 June 1977, at p. 8

[vi] Lands Legislation Amendment Act 1992

[vii] Explanatory Notes to the Lands Legislation Amendment Bill 1992 at 1 - http://www.legislation.qld.gov.au/Bills/47PDF/1992/LandsLegislationAmdB92E.pdf 

[viii] Explanatory Notes to the Lands Legislation Amendment Bill 1992 at 3

[ix] Land Act 1994, section 506B (4)

[xi] Butterworths Concise Australian Legal Dictionary, 1997 – definition of ‘corporation sole’

[xiii] Queensland Treasury Corporation Act 1988

[xiv] Public Trustee Act 1978

[xv] State Development and Public Works Organisation Act 1971
 
[xvi] At the commencement of the Land Act 1994

[xvii] Land Act 1994, section 514

[xviii] Land Act 1994, sections. 506H and 506I

[xix] Information received by phone from the Department of Natural Resources and Water on 22 February 2008 & 29 April 2008

[xx] Land Act 1994, section 514(1)

 
[xxi] Land Act 1994, section 514(2)

[xxiv] Glasgow v.  Hall [2007] HCATrans 557 (3 October 2007) – http://www. austlii. edu. au/au/other/HCATrans/2007/557. html

Wilson v.  Raddatz [2007] HCATrans 558 (3 October 2007) - http://www.austlii.edu.au/au/other/HCATrans/2007/558. html

Burns v.  State of Queensland [2008] HCASL 68 (28 March 2008) - http://www.austlii.edu.au/au/cases/cth/HCASL/2008/68.html

[xxv] Bone v. Mothershaw [2002] QCA 120 – http://archive.sclqld.org.au/qjudgment/2002/QCA02-120.pdf

Burns v. State of Queensland [2006] QCA 235 - http://archive.sclqld.org.au/qjudgment/2006/QCA06-235.pdf

Wilson v. Raddatz [2006] QCA 392 – http://archive.sclqld.org.au/qjudgment/2006/QCA06-392.pdf

Glasgow v. Hall [2007] QCA 19 - http://archive.sclqld.org.au/qjudgment/2007/QCA07-019.pdf

[xxvi] Glasgow v. Hall [2006] QDC 042 at [12] - http://archive.sclqld.org.au/qjudgment/2006/QDC06-042.pdf

[xxviii] Constitution Act 1867, section 2; Constitution ofQueensland Act 2001, section 8; Also see Australia Act 1986 (Cth), section 2. 

[xxx] Land Title Act 1994 schedule 2 – definition of ‘registered owner’ -  http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LandTitleA94.pdf

[xxxi] Queensland - Department of Natural Resources. A Guide to Land Tenure in Queensland, 1998 at p. 5 -
 http://www.nrw.qld.gov.au/land/state/pdf/landtenureqld.pdf

 

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Written and Authorised by Selwyn Johnston, Cairns FNQ 4870