Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Lands Acquisition Amendment (Public Purpose) Bill 2017

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

  2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

LANDS ACQUISITION AMENDMENT (PUBLIC PURPOSE) BILL 2017

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Hanson)



LANDS ACQUISITION AMENDMENT (PUBLIC PURPOSE) BILL 2017

 

 

OUTLINE:

 

The purpose of the Bill is to clarify the meaning of the definition "public purpose" as defined in the Lands Acquisition Act 1989 (Lands Acquisition Act)which has been the subject of consideration by various judgements over the years to determine whether a compulsory acquisition was lawful.

 

The reason and the appropriateness for the introduction of this Bill has been necessitated by the recent actions by the Department of Defence issuing notices of intent to acquire land which caused historical landowners distress and cost only then to be withdrawn particularly when it could not be demonstrated the acquisitions were within the current definition irrespective of its vagueness.

 

Section 6 of the Land Acquisition Act defines "public purpose" as follows:

 

public purpose means a purpose in respect of which Parliament has power to make laws and includes, in relation to land in a Territory, any purpose in relation to the Territory.

 

It is the vagueness of this definition which has resulted in a number of judicial reviews which has necessitated references to external sources to provide clarity and meaning.

 

The second reading speech at the time of introduction of this Act adds little to the meaning of the words other than referring to section 31 of the Act. However the following sentence is relevant as it gives the tenor of the purpose of the words within the meaning of the Act:

 

This government is concerned by the need to strike a balance between the rights of private property on the one hand and the legitimate needs of society for land for public purposes on the other.

 

This sentence within the second reading speech clearly delineates that the acquisition is for the benefit of society. There was no substantive debate on what the phrase “public purpose” meant.

 

The Australian Law Reform Commission report dated April 1980 on which the Land Acquisition Bill is largely based, commented on land acquisition for a “public purpose” at paragraph 79 as follows:

 

The acquisition power granted by s. 51(xxxi) is a separate head of legislative power but is qualified by reference to the other legislative powers. There is no power to acquire generally; the acquisition must for a purpose in relation to which the Parliament may make laws. It is no wider than would be an incidental acquisition power, attaching to the various heads of legislative power. The result is that each of the principal statutes which the Commonwealth Parliament has enacted, providing for land acquisition, has limited the executive power granted by it to acquisition for a specified ‘public purpose’.

 

Specification of a "public purpose " is therefore critical to the validity of an acquisition, although the courts will not go behind the proclamation to determine the purpose.

 

There are only a few cases that have considered the meaning of the words ‘public purpose’ in the Lands Acquisition Act 1989 .

 

The leading case is Clunies-Ross v Commonwealth . In this case, the phrase ‘public purpose’ is considered as used in the Lands Acquisition Act 1955. The majority of the judges agreed that:

If the power to acquire for a public purpose which the Act is constructed as extending to purposes quite unconnected with any need for or future use of land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, I would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws or, in the case of land in a Territory, “any purpose in relation to that Territory”.

 

That case was referred to in French v Gray, Special Minister of State 2013.

 

In this case Besanko J adopted the view of the High Court in Clunies-Ross v Commonwealth of Australia that:

It follows that the power compulsorily to acquire land for a purpose which is conferred by the [Lands Acquisition] Act is limited to a power to acquire land for some purpose related to a need for or proposed use (be it active or passive) or application of the land acquired.

 

The question of public purpose was extensively examined in the (2013) 22 Australian Property Law Journal page 61:

 

Contrast the majority in Griffiths with Prentice v Brisbane City Council where, as noted by Kiefel J (dissenting) in Griffith, the council was restrained from proceeding with an acquisition because its main purpose was to assist a developer ‘notwithstanding that in a broad sense the interests opening up of the lands’. In other words, the court in Prentice considered that the benefits to the public community were too remote, relative to the compulsion of the proposed acquisition.

 

The purpose of this Bill is to clarify the meaning of the words “public purpose” to apply to all future compulsory acquisitions of land.

 

Recent efforts by the Department of Defence to compulsorily acquire vast tracks of land for the publically stated purpose for the training of the Singapore army and air force could not be shown to be for the “benefit of” or a “purpose for” the Australian public.

 

The result of implementing these amendments as outlined in the Land Acquisition Amendment (Public Purpose) Bill 2017 will ensure such action will not re-occur as the amendments clearly define requirements at the time of a department making a declaration.

 

 

 

 

 

 



 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           The whole of this Bill will commence on the day on which the Bill receives the royal assent.

Clause 3 - Schedules

4.                   Legislation that is specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule concerned and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment

1.       Subsection 41(1)

This amendment deletes reference to section 42 only and inserts in lieu thereof the words “sections 41A and 42”. This change is consequential on the change made by item 2.

 

 

2.       Inserting the new section 41A -Purposes limited for acquisition by compulsory process.

 

The new section places the responsibility on the Minister making a declaration under section 41(1) to do so for the direct benefit of the Australian public or to provide necessary services to the Australian public which would not otherwise occur unless  the acquisition did not occur.

By so defining the public purpose in such unequivocal terms, any future declaration can never again be for the benefit of a third party or country.

3 Application provision

This proposed provision ensures that all pre-acquisition declarations made under section 22 or certificates issued under section 24 before the commencement of this Bill are unaffected.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Lands Acquisition Amendment (Public Purpose) Bill 2017

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This Bill clarifies that all future declarations for the compulsory acquisition of land not only must come within the current statutory legislative power of the department but it must demonstrate it is for the direct benefit of the Australian public or for an acquiring authority to provide necessary services to members of the Australian public which would not otherwise be provided if the acquisition did not occur.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

The introduction in fact helps to protect the rights of all Australians or land holders generally to ensure any proposed compulsory acquisition is only for the benefit of the Australian public and not for the benefit of a third party or country.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

Senator Hanson