|Description of this FunctionDescription of this Function|
Since the first occupation of the Port Phillip District the Government of Victoria has been responsible for the management of the publicly-owned land and water of the State. As at 1988 approximately two-thirds of the States land had been alienated from the Crown. The Government also plays a role in the protection of this ly-owned land and water. The management of Crown (unalienated) land and protection of ly-owned (alienated) land has had a complex history and is encompassed by a number of related functions.
In the 19th century, Crown land administration included the survey of land, regulation of the sale (alienation) of Crown land by auction and selection; settlement of disputes regarding alienation and occupation; issue of occupation licences and leases and ensuring compliance with the conditions of such licences and leases; issue of Deeds of Grant for alienated land and for reserves granted for public purposes such as schools and churches; issue of licences for pastoral occupation and determination of rents; control and management of public parks, reserves and commons, alpine resorts and prevention of the unauthorised use or occupation of crown lands.
In the 20th century the focus of land administration has been the management of the State's public land through the issue of leases and licences for unreserved land; the support, co-ordination and monitoring of committees of management responsible for over 4000 Crown reserves; the control of pests and weeds and development of conservation and management plans for public land.
In order to gain some understanding of the various ways that the States land has been managed and regulated it is useful to understand some of the ways in which land has been classified.
Overview of land classification and management
The land and waters of Victoria have, since their first occupation, been classified in various ways and have often been managed according to their classification. The primary classifications are:
Under presumption of the legal doctrine of "terra nullus" the land and waters of Australia were seized in 1770 from the indigenous population and annexed to and vested in the Crown of the United Kingdom of Great Britain and Ireland. From the time of the annexation property rights could be derived only from the Crown. The administration of these rights in the Port Phillip District was initially through the Crown Colony of New South Wales. Since 1851 the land and waters of Victoria have been administered by the Crown Colony of Victoria and its successors. As land was sold to interests it became known as alienated land.
Under legislation Crown (unalienated) land and water can be reserved permanently or temporarily for a variety of purposes. The permanent reservation of land can only be revoked by Act of Parliament. Remaining Crown land is unreserved.
There are a number of special forms of reservation which have determined the way the land and/or water is managed. These include:
State Forests:The Forests Act 1907 provided for the creation of permanent or reserved forest which can be excised only by Act of Parliament, by a resolution of Parliament, for specific public purposes or by exchange for or unoccupied Crown land. The Forests Commission is vested with sole control and management of all areas of reserved forest.
National Parks: The National Parks Act 1956 (No.6023) provided for the establishment of national parks under the control of the National Parks Authority. Under the National Parks Act 1975 the types of parks and reserves managed as national parks were expanded to include wilderness parks and state parks.
Since 1987 the management of Crown lands has been separated according to whether the land is classified as public land or as Government land. Public land has been identified as that land which needs to be retained permanently for the "public benefit" because of its natural resource, environmental resource or heritage attributes, and includes:
unreserved public land (including forests and plantations)
native forest reserves
public parks, gardens and recreation reserves
national and state parks, historic sites
wildlife and wilderness reserves.
Government land has been identified as land used for the provision of goods and services by public agencies, and includes:
declared roadways (used)
railway permanent way and rail reserves
sites of premises and other land use for delivery of goods and services, eg. offices, schools, laboratories, depots etc.
Unreserved lands subject to classification review are managed as Public land until their classification into Government or Public land.
A Bill of Parliament to authorise the transfer of Government land management, lease and sale functions to the Minister for Property and Services (VRG 69) was prepared but never tabled. In order to effect the intention of the Bill, sections of the Land Act 1958 (No.6284) were subsequently transferred to the Minister for Property and Services via Administrative Arrangements Order (No. 58) 1988. This transfer of functions has been described as "administratively clumsy".
The authority to manage and undertake the lease and sale of government land was transferred to the Minister of Property and Services to enable a co-ordinated assets sales program. Although the power to sell Crown land was transferred to Property and Services (VRG 69), the ability to lease designated government land (usually in the metropolitan area) had to be effected by the Department of Property and Services (VA 430) acting as an agent for the Department of Conservation, Forests and Lands (VA 1034). Similarly the Department of Conservation, Forests and Lands exercised responsibility for the sale of Crown land (usually in rural areas) by acting as a land agent for the Department of Property and Services.
Public Crown lands
Although the distinction between public and government land is relatively recent, for the purposes of functional analysis the distinction has been applied retrospectively.
This function, ie. the management of Crown land classified as public land, has included the following broad activities:
regulation of occupation and use of unreserved land by lease and licence
reservation of land for public purposes
regulation of the management of reserved land.
Unreserved land subject to classification review is managed as public land until it is classified.
Regulation of occupation and use of unreserved land
The first Act to restrain the unauthorised occupation of Crown Lands (commonly known as the Squatting Act) was passed on 29 July 1836 authorising the issue of depasturing licences for grazing stock on vacant Crown land outside the limits of settlement. The Act imposed penalties for the illegal occupation of land. The first squatters licences were not granted however until July 1838 when the first full-time Commissioner of Crown Lands was appointed.
The regulation of occupation and use of unreserved Crown land has since been governed either by short term (annually renewable) tenure or guaranteed long term tenure, neither of which embodied the right to purchase. Authorised forms of occupation have included land held under lease, licence or permit within the following categories: primary production, residential, recreational, public utility, industrial and commercial. Examples of temporary occupancies have included grazing licences, permits to remove gravel and bee range licences. Examples of long term occupancies have included Mallee grazing leases and industrial leases.
Crown land occupation has been controlled and administered pursuant to a number of Acts, including the Squatting Act mentioned above. Until the establishment of the Department of Crown Lands and Survey (VA 538) in 1857, primary responsibility for policing the occupation of Crown lands rested with the various district Commissioners of Crown Lands. From 1853 to 1857 the district Commissioners were organised into a Department of Crown Lands (VA 2878) under the supervision of a Chief Commissioner of Crown Lands.
After 1829, as white settlement in New South Wales (and the Port Phillip District) grew, the emphasis of land administration shifted from small-scale land grants encouraging agricultural production, to tickets of occupancy, later to become the pastoral licence and leases of the 1830's and 1840's. In the years from first European settlement in the Port Phillip District in the early 1830s, the fertile regions of Victoria had been turned into sheep runs by squatters whose possession of the land rested on simple occupancy. By 1838 practically the whole of the present Western District had been occupied and flocks numbered more than 310,000. By 1840 this number had almost doubled. [Australian Encyclopaedia, Grollier, Sydney, n.d, Volume IX, p.118]
After 1838 the occupiers of these pastoral runs in the Port Phillip District had to obtain an annual 10 licence based on a stock assessment which was conducted by the Commissioners of Crown Lands. Under the provisions of 1847 Orders in Council all persons in occupation of licensed runs had to lodge applications for leases and the pre-emptive rights of the squatters were thus recognised. In the newly defined Intermediate and Unsettled Districts of New South Wales, which encompassed most of the Port Phillip District except land near the townships of Melbourne and Geelong, pastoral occupants were to be granted eight and fourteen year leases respectively, together with the right of prior purchase and compensation for improvements.
The leases were never granted. Instead 1852 Orders in Council continued the system of yearly tenure. The 1862 Land Act allowed a nine year tenure which was to expire in 1870. Under the terms of the 1869 Land Act the annual licences were not assured beyond 1880. The annual licences constituted a chattel interest and were transferable, but after 1873 no new licences were issued - all new runs and old surrendered runs were held under "grazing licences". Pre-emptive rights to homestead sections were secured to all licensed tenants, but after 1870 no claims were allowed for compensation for improvements made by outgoing licensees. Until 1852 rents were based on the amount of stock actually carried. Later, the basis for assessment was the grazing capacity of the run. This was calculated from estimates sent in by the run holders and verified or amended following occasional inspection and arbitration.
Reservation of land for public purposes
The disposal (sale, reservation or otherwise) of Crown lands in the Australian Colonies was initially regulated by Imperial legislation. An 1842 Act (5 & 6 Victoria, c. 36) provided for Her Majesty, or persons acting on her behalf, to reserve or dispose of in some other manner
such lands as may be required for public roads or other internal communications, whether by land or water, or for the use or benefit of the aboriginal inhabitants of the country, or for purposes of military defence, or as sites of places of public worship, schools or other public buildings, or as places for the interment of the dead, or places for the recreation and amusement of the inhabitants of any town or village, or as the sites of public quays or landing places on the sea coast or shores of navigable streams, or for any other purpose of public safety, convenience, health or enjoyment....
Crown lands reserved, temporarily or permanently for public purposes are known as Crown Reserves. Some are surveyed allotments while others are large tracts of land whose boundaries are loosely defined. A permanent reserve can only be revoked by an Act of Parliament.
Until 1988 all Crown reserves were managed by the one department. The division of responsibility for Crown lands in 1988 introduced a distinction between Crown reserves for public purposes and Crown reserves for government purposes. Examples of Crown reserves for public purposes are: recreation reserves, foreshores, municipal parks and gardens, camp reserves, public halls, timber reserves, commons, water reserves, fauna reserves and early national parks.
Until 1871 Crown land was also reserved for church purposes, however, after the 1871 Act for the Abolition of State Aid to Religion [No. 391] this practice ceased and provision was made for church trustees to obtain a freehold title to any land which had previously been promised or reserved.
Further research is required into the administration of Crown reserves between 1853 when the Colonial Secretarys Office ceased to have prime responsibility and 1857 when responsibility was assumed by the Department of Crown Lands and Survey. It is believed that the Surveyor-Generals Department (VA 2921) was primarily responsible during this time although it is not yet certain what relationship existed, and how Crown lands responsibilities were divided, between the Surveyor-Generals Department and the Department of Crown Lands (VA 2878).
Regulation of the management of reserved land
Crown lands reserved for public purposes are in most cases directly controlled by Committees of Management which are appointed by the Minister responsible for Crown lands. In most cases the local municipal council is appointed, in others, local individuals are elected to the committees. These Committees of Management are supported, co-ordinated and monitored by the Department responsible for Crown land and from the 1980s, through jointly developed management plans. In some matters the Committees are subject to statutory control by the government agencies which deal with fire protection, land conservation, planning etc.