Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 22 August 1906


Mr GROOM (Darling Downs) (Minister of Home Affairs) . - I move -

That the Bill be now read a second time.

Paragraph xxxi., of section 51, empowers the Parliament - to make laws for the peace, order, and good government of the Commonwealth with respect to -

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

Pursuant to that provision, the Property for Public Purposes Acquisition Act was passed in 1901, and sets, out the present law relating to the exercise by us of the power possessed by sovereign communities to acquire private property for public purposes; but, as the title of the measure is rather lengthy, it has been thought desirable to shorten it by adopting the " Lands Acquisition Bill " as the title of the measure, the second reading of which honorable members are now asked to pass-. It is not proposed to introduce any drastic alteration of principle. In the first instance, the whole of the existing law has been recast with a view to simplify the language and make it easier to comprehend. The old statute was built up upon the experience of the States, and, as some of the provisions were rather complex, it was desired by the Crown Law authorities to recast the Act and draft it upon simpler lines, rather than to merely make any amendments suggested by the experience gained under the operation of the Statute. The Bill does not purport to introduce into the principles relating to the acquisition of public property for public purposes any drastic provisions. If honorable members will look at the measure, they will find that it is divided into six parts. Part I. contains a number of preliminary provisions. Part II. deals with the acquisition of land. Fart III. deals with the exercise of certain powers in relation to lands. Part IV. deals with compensation. Part V. relates to mortgages and encumbrances upon any land that mav be acquired under the Bill ; and Part VI. contains certain miscellaneous provisions. As regards Part I., it will be seen that several new definitions have been added with a view to making the measure more explicit. Additions have also been made to one or two of the definitions which, perhaps, could be better explained in Committee. In view of a suggestion that has been made. I wish honorable members to particularly notice the fact that the Bill relates solely to the acquisition by the Commonwealth of land required for public purposes, and for dealing with the land so acquired. It is not intended to "serve any other purpose. " Public purpose" is defined to mean -

Any purpose in respect of which the Parliament has power to make laws, but shall not include the acquisition of territory for the seat of Government of the Commonwealth under the Constitution.


Mr Glynn - We could not possibly go beyond that.


Mr GROOM - No; and I am merely mentioning the matter because some misconception has arisen as to the purpose of the Bill. We could not go beyond the powers possessed by us under the Constitution, and this is merely a machinery Bill for the purpose of enabling us to exercise the authority we possess. In clause 6, a slight change has been made from the original provision. It is provided that after arrangements have been made between the Governor of a State and the GovernorGeneral of the Commonwealth for the acquisition of lands by the Commonwealth, the Governor of the State shall, by virtue of the measure, have power to execute the documents necessary for the transfer of the land. This provision is made in order to overcome- certain difficulties which have arisen under the States laws. Clause 7 does not depart from the original provision. Clauses 8 and 9 relate to cases in which persons have certain interests of a limited nature in connexion with land, which it is sought to acquire, and is intended to enable them to execute the necessary transfer to the Commonwealth. The provision relates to trustees, guardians, committees in respect of lunatics,, executors or administrators, and others whose powers are limited under various State Acts such as the Settled Lands Act. A provision has been inserted in order to make it clear be yond all doubt that such persons possess power to transfer land to the Commonwealth under this Bill. The extent to which such power could be exercised was practically provided for in the original statute.


Mr McCay - Would this provision dispense with the necessity for registration under States Acts?


Mr GROOM - No.


Mr McCay - I think that it is very capable of being so construed. Would this provision dispense with the necessity of registration by the Commonwealth?


Mr GROOM - The provision deals with cases in which property is transferred to the Commonwealth, and whose interest will be registered under the States Acts.


Mr Glynn - The provisions set out that they " may " be registered.


Mr GROOM - Yes; but the Commonwealth is placed in the position of a corporation, and provision is made for the necessary presentation to the registrars of the States with a view to the registration of the Commonwealth interest, and it is not likely that we shall depart from that. In clause 10. a change has been made. Under the existing Act provision is made that where land is conveyed to the Commonwealth by trustees or others, such as are referred to in the previous clause, the purchase money paid over to them shall be applied in the manner indicated in sub-clause 2. Now it is proposed that the money may, with the consent of the parties interested, be handed to the trustees, subject to the provisions of a trust declared by a deed approved by the AttorneyGeneral, or mav be paid into the High Court or the Supreme Court, to be applied by the Court in the manner prescribed in sub-clause 2. This provision has been made in order to insure that money which is held practically in trust should be applied to the purposes of the trust.


Mr Glynn - Paragraph d is pretty wide.


Mr GROOM - That provision was contained in the original statute. The Court always pays due regard to certain well-established principles. In clause 12 a slight change has been made. It is provided that where a person is in possession of land, he shall be regarded as the prima facie - not the actual - owner of it. This provision is necessary, because we have met with certain difficulties in dealing with persons who have not been able to give us a satisfactory title.


Mr Johnson - But how could the Commonwealth acquire land from a person unless they knew he was the owner?


Mr GROOM - There is nothing to prevent us from acquiring the land, but it is merely a question of paying over the purchase money.


Mr Johnson - The money might be paid ever to the wrong person.


Mr GROOM - The Attorney-General does not pay over the money until he is perfectly satisfied as to the right of the claimant to be regarded as the owner of the property. This provision would meet the case of a person who had been in adverse possession of land for a considerable time. Part II. deals with the acquisition of land, and is practically a re-draft of the original statute. No important departures have been made. The Commonwealth may acquire land in two ways - either by agreement or by compulsory purchase. It is provided that the Commonwealth may acquire any land, but that does not mean that we may acquire land for other than public purposes - an interpretation which, "I am sorry to say, has been placed upon it. The whole measure relates to the acquirement of land for public purposes, and the word " land " is used merely for the purpose of short reference in drafting, because it is not considered necessary to specify in every case that the land is to be used for public purposes. Sub-clause 2 of clause 14 is a new provision intended to enable the Minister, without obtaining the authority of the Governor in Council, to enter into short leases of a minor character, such as might be necessary in the case of post-office premises. In a later clause, the Minister is empowered to .give short leases as well as to acquire them. The provisions relating to the acquisition of land by compulsory process are practically the same as those contained in the Act. The Governor-General has power to acquire land after giving notice, which is to be published in the Government Gazette. At present, it must also be advertised in the newspapers. The notice is to be published in the Gazette, and laid upon the table of the House, and in clause 18 provision is made for the service of the notice. Under clause 16 the publication of the notice in the Gazette will have the effect of vesting in the Commonwealth the interests of the owner in the land that has been acquired.


Mr McCay - Paragraph b of sub-clause 1 might operate very harshly against many persons. Take, for instance, the case of the owner of an adjoining, tenement having an easement over the land acquired.


Mr GROOM - We could also acquire the easement by compulsory acquisition, if necessary.


Mr Reid - But the owner of the easement could not make a claim.


Mr GROOM - The owner of any interest in the land is afforded an opportunity to make his claim.


Mr Glynn - The definition of "land" covers easements.


Mr Reid - That meets the difficulty.


Mr GROOM - -Part III. deals with the powers of the Commonwealth in relation to lands. When it is necessary to acquire land it sometimes becomes essential to make surveys beforehand, and clause 21 empowers the Minister or any persons authorized by him to enter upon any land' and make surveys, take levels, sink pits, and1 examine the soil, and do any thing necessary for ascertaining the suitability of the land for any public purpose. I am sorry to say that this provision seems to have been misunderstood. The Minister will be empowered merely to enter upon the land and to make the necessary examination so that he may ascertain its suitability for any public purposes. For example, if we desired to acquire land to be used as a site for a fort, or any work of that description, we should have power to enter upon the land and find out whether suitable foundations could be obtained.


Mr Glynn - That is quite a common provision in the States Acts.


Mr GROOM - Yes, it is.


Mr Johnson - Would mining be regarded as a public purpose within the meaning of the Bill?


Mr GROOM - We have no power under the Constitution to deal generally with mining. The sinking of pits referred to would have nothing to do with mining, but would merely enable us to ascertain whether suitable foundations could be obtained for the contemplated public buildings or works.


Mr Johnson - What I mean is, would the acquisition of land entitle the Commonwealth to all the minerals lying in or under the land?


Mr GROOM - That is another point, with which I shall deal later on. I am merely explaining the purpose of the provision, because some misconception has arisen in regard to it. Part IV. deals with compensation, and is practically a redraft of the sections of the existing law. With regard to the claim for compensation, some slight change has been made. Under the existing law, it is necessary to serve notice of claim upon the Minister of Home Affairs and also upon the Attorney-General. . Only one notice is really necessary, and accordingly we provide that notice shall he served upon only one Minister. Under clause 33, we further extend the time within which a person may serve that notice. He mav present it within 120 days after the publication of the notification of acquisition, or within 120 days after the completion of the acts in respect of which compensation is claimed. We further give the Minister power to extend the time for making any claim, instead of requiring the matter to be referred to the High Court. Clause 36 of Division III., however, does contain important alterations of the existing law. The existing methods of settling disputes are to be superseded. It provides three ways in which disputed claims may be settled. A disputed claim may arise in this way : After the Minister has acquired the land in the manner prescribed bv the Bill, a notice of claim for compensation may be served upon him. The Minister may then offer the claimant a certain amount in satisfaction of his claim, and if the claimant does not, within sixty days thereafter, accept it or if the Minister notifies the claimant that he disputes the claim for compensation, the claim shall be regarded as a. disputed one. Clause 36 provides three ways in which such a claim may be determined : (1) By agreement between the Minister and the claimant; (2) by an action for compensation by the claimant against the Commonwealth; and (3) by a proceeding in a Federal or State Court on the application of the Minister. The first method is, of course, a simple one, in which the parties either arrive at an agreement that a certain price shall be paid, or consent to refer the matter to arbitration. The second method enables an action to be brought by the claimant' against the Commonwealth. In this connexion we have made a departure from the existing law. At the present time an action for compensation can be brought only in the High Court. That is an expensive proceeding. In some instances, where very small claims have been in dispute, the Commonwealth has been called upon to pay more than it thought was just, rather than incur the expense of fighting an action in the High Court, and possibly- owing to the peculiar rules in connexion with the payment of costs - be obliged to pay more in the nature of costs than the amount in dispute. With a view to getting' rid of that difficulty, and to providing a tribunal for the settlement of disputed claims, the Bill sets out that an action for compensation may be brought either in the High Court or in any State Court of competent jurisdiction. If an action be brought in a higher Court which ought to have been brought in a lower Court, the Judge is empowered to fix a scale of costs proportionate to the amount awarded. In clause 38 a new provision has been introduced. Our trouble has been that, when we acquire a piece of land, and the claim for compensation is in dispute, litigants sometimes decline to proceed with an action. We have an instance of the kind pending at present. It is a case in which we shall have to pay interest upon a large sum which is claimed for compensation, and in which the litigant disputed the amount, and would not institute an action in the High Court. In that instance the hands of the Commonwealth' were stayed. With a view to overcoming that anomaly, we provide in clause 38 that, if within siX months after a claim for compensation becomes a disputed claim, no action is brought by the claimant, the Minister has power to refer the matter to the High Court, and to have it determined.

In clause 39 another new provision has been inserted. Unfortunately, under the existing law, if the owner of any land which may be acquired be absent from the Commonwealth, there is no method of having the amount of compensation to which he is entitled determined, because there is nobody present to institute an action. Accordingly, we provide that in cases where the owner of land which we wish to acquire is absent from the Commonwealth, and no claim is made within six months, the Commonwealth may make an application to the Court to determine the amount which is payable. We are thus able - according to the amount of the claim which is likely to be involved - to take advantage of a Court of competent jurisdiction.


Mr Reid - Is that a new provision?


Mr GROOM - It is. Under the existing law we can acquire the land, and the Attorney-General is empowered to pay compensation into the Treasury, but there is no means of determining the amount of that compensation. Then the procedure in connexion with the payment of compensation has been altered slightly, and a proviso has been added to clause 40, with a view to expediting that procedure. That is to say, if a claim has been made, and the compensation which has been awarded is less than the amount which the Minister has offered, the compensation shall carry interest only from the date of the claim up to the date on which the offer was made.


Mr Reid - That is a very harsh provision.


Mr GROOM - I do not think so.


Mr Reid - How can the Minister be satisfied upon the point until the tribunal has determined the amount of compensation payable?


Mr GROOM - Under the clause the claimant will get the interest to which he is entitled.


Mr Reid - Suppose that after the claim has been made he does not accept the offer of the Minister.


Mr GROOM - The provision applies on l v to cases where the claimant proceeds to 1 iti cation. However, that is a matter for consideration in Committee. There are one or two minor alterations to which it is not necessary to refer at this stage. Division V. is a re-enactment of the provisions of the existing law, with the exception of clause 49, which relates to the rights of a mortgagee in connexion with lands which are acquired compulsorily. That is a new provision. In the miscellaneous clauses the only provision to which I wish to refer is clause 62, which relates to mining leases and licences. When the Federation was established, it took over a large number of properties from the States, including rifle ranges in mining districts. These properties passed to the Commonwealth absolutely, and are subject to its exclusive jurisdiction. In Victoria especially, our attention has been drawn1 to a difficulty which has arisen in this connexion, and the Commonwealth has been asked to consider claims relating to mining operations upon properties which are used for defence purposes. Under the existing Act we have no power to issue mining leases, and yet the State could not lake any action regarding the properties to which I allude, because thev had passed to the control of the Commonwealth. The matter was brought forward at the last Premiers' Conference, at the request of the Premier of Victoria. It was discussed, and a promise was made that we would introduce legislation upon the lines suggested in clause 62. Under that provision the Governor-General has power to authorize the grant of a lease or licence to any person to mine for metals or minerals on any land- which is the property of the Commonwealth.


Mr Johnson - In New South Wales, when the Crown parts with any land, a reservation is always made in its favour in respect to minerals which mav be found there.


Mr GROOM - That does not alter the position that when the Commonwealth, was established a large number of these properties, by virtue of the Constitution, passed over to it. When we took over the land, we took with .it everything that might be found under as well as above the surface. This clause has been introduced in pursuance of a promise which was made at the Premiers' Conference.


Mr Johnson - I do not think we have power to invade the rights of the States.


Mr GROOM - There is no invasion of State rights, and this clause was introduced in pursuance of the promise which was made to the Premiers that we would issue licences to enable persons to mine upon these properties. Inasmuch as it was not deemed advisable to introduce a Commonwealth Mining Act which would apply to all the States, we suggested that the States laws should operate in each_ in- stance, and that they should be administered by the State officers.


Mr McCay - By whom may the GovernorGeneral authorize the grant of a lease ?


Mr GROOM - He authorizes the grant of the lease.


Mr McCay - Would it not be much simpler to enact that leases might be issued under State Laws with the consent of the Commonwealth ?


Mr GROOM - I think that the method provided in the Bill is the better one.


Mr McCay - If the Commonwealth consent is required at any time, it would be much simpler to insert a provision such as I have suggested.


Mr GROOM - The idea is not to pass a Mining Act for the Commonwealth, but where mining operations can be carried on without detriment to any land which is vested in the Commonwealth, to enable them to be undertaken. Our object is not - as has been suggested - to acquire land for mineral purposes in order that mining operations may be conducted independently of any public purpose.


Mr Johnson - The point which I have in mv mind is that the sovereign rights of the States to these minerals is not recognised.


Mr GROOM - Under the Constitution, the Commonwealth has power to acquire all lands which are necessary for public purposes. If it were found, for example, that if mining operations were carried on underneath a large fort, they would seriously interfere with the value of the land for a fort, we would have power to acquire the whole of that land' and everything in connexion with it.


Mr Johnson - There is a difference of opinion in regard to State rights.


Mr GROOM - I do not think that the honorable member has comprehended the position, or he would not have made any such suggestion. It is absolutely essential that we should exercise that power, in order that we mav discharge our duties.


Mr McCay - As a matter of fact, there are many cases in which mining might well be carried on, but in which operations are blocked owing to the existing law.


Mr GROOM - Exactly. Some of our large rifle ranges embrace areas of 500 or 600 acres.


Mr McCay - At any rate, mining operation below certain depths will be quite harmless.


Mr GROOM - That is so. In some cases, it is sufficient for the Commonwealth to take a grant from the States, still leaving, to the latter a reservation as to minerals. We have done that already. The object of the provision is merely to give the Commonwealth rights which are absolutely essential for the acquisition of land for public purposes.


Mr Johnson - I can see that it is capable of extension far beyond that.


Mr GROOM - The honorable member is misconceiving the position. These are the only important changes in the existing Act which we contemplate making, and I now move the second reading of the Bill.







Suggest corrections