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Lands Acquisition Legislation Amendment Bill 2007

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 2004-2005-2006-2007

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

LANDS ACQUISITION LEGISLATION AMENDMENT BILL 2007

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Parliamentary Secretary to the Minister for Finance and Administration, Senator the Hon Richard Colbeck)



LANDS ACQUISITION LEGISLATION AMENDMENT BILL 2007

 

OUTLINE

 

The purpose of this Bill is to amend the Lands Acquisition Act 1989 (‘the Act’) to reflect the changes in the modern Commonwealth property environment since the Act was last amended in 1989.  This was based on feedback from Commonwealth agencies and relevant stakeholders on the practical operation of the Act. 

 

Amendments to Section 124 of the Act, will lay a platform to promulgate Commonwealth Mining Regulations.  The amendments to section 124 would enable States and Territories to administer exploration and/or mining on Commonwealth land through regulations that incorporate or adopt appropriate State/Territory mining legislation.  The Commonwealth Mining Regulations will provide a consistent regulatory framework for the management and administration of mining on Commonwealth land.  The development of these Commonwealth Mining Regulations would involve continued consultation and negotiation with State/Territories as well as the Ministerial Council on Mineral and Petroleum Resources.

 

Empowering the Federal Court with jurisdiction in matters arising under the Commonwealth Mining Regulations will ensure consistency of judicial and review processes throughout the Act.

 

The penalty regime prescribed under regulations in the Act will now provide for a maximum penalty of 50 penalty units for an individual and 250 penalty units for a body corporate for breaching the regulations.  This is in line with the Commonwealth’s Criminal Law Policy.

 

The ability of the Minister to initiate an offer of compensation to an interest holder without a claim being made promotes efficiencies and fairness in the application of the Act.  Where the Minister identifies that a person’s interest has been acquired and no claim has been received within 12 months, the Minister will be able to make an offer of just terms compensation.  This should expedite the acquisition process and ease the financial and administrative burden associated with such a process.  The rights of recipients of offers to the review and determination processes under the Act are preserved.  In addition, recipients will have access to compensation for legal and professional costs reasonably incurred in relation to the acquisition in accordance with the Act. 

 

An agreed acquisition of an interest that is available in the market is reported on AusTender and is sufficient for transparency and accountability purposes.  AusTender provides a central publication for reporting Australian Government procurements and contracts awarded.  The amendment to remove the requirement to table these transactions in Parliament eliminates duplication in reporting but maintains transparency and accountability of the process through AusTender.  The amendment is consistent with the Commonwealth’s initiative to reduce red tape in Government administration.



The inclusion of Section 18B of the Cocos (Keeling) Islands Act 1955 into Section 5 of the Act, eliminates an inconsistency that arose when the Act was last amended in 1989.  The amendment to allow the Cocos (Keeling) Islands Act 1955 to administer land on Cocos Islands reflect similar provisions that are in place for Section 21A of the Christmas Island Act 1958 and Section 62 of the Norfolk Island Act 1979 .

 

The replacement of the reference to the Attorney-General with the Minister in Section 122 of the Act creates a more appropriate and efficient process, given that the Minister has the responsibility for administration of the Act.

 

The repeal of the Lands Acquisition (Defence) Act 1968 will eliminate redundant legislation which was created in order to acquire public parkland in New South Wales.  This acquisition has long since passed and that Act can now be repealed.

 

Financial impact statement

 

There are no net negative financial implications from the amendments.  There will be a reduction in administrative costs associated with changes to the tabling requirements for commercial, non-contentious transactions.  Furthermore, creation of a framework that allows the Minister to initiate the compensation process for an acquired interest is likely to reduce the financial burden of the acquisition process.



LANDS ACQUISITION LEGISLATION AMENDMENT BILL 2007

 

NOTES ON ITEMS

 

Clause 1: Short title

 

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

 

Clause 2: Commencement

 

2.   This clause provides a table outlining the time of commencement of each     provision of the Act.

 

Clause 3: Schedule(s)

3.   Each Act that is specified in a Schedule to this Act is amended or repealed as 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: Mining Regulations

 

Item 1: Subsection 124(2)(b)

 

i.                     This clause allows regulations under Section 124 of the Act to vest the Federal Court of Australia with jurisdiction in matters arising from regulations.  The inclusion of the Federal Court enables review of any issues arising under proposed mining regulations.

 

ii.                   The empowerment of the Federal Court to review matters arising under the regulations ensures that any mining regulations made under section 124 of the Act have a judicial and review process consistent with the rest of the Act.

 

Item 2: Subsection 124(3)

 

iii.                 The clause allows regulations made for the purposes of Subsection 124(1) of the Act to apply, adopt or incorporate (with or without modifications), State and Territory laws as in force at an existing time or as in force from time to time.



Item 3: Subsection 124(7)

 

iv.                  This clause defines the law of a State or Territory for the purposes of Section 124 of the Act. 

 

 

 

 

Item 4: Subsection 124(7)

 

v.                    This clause defines modifications for the purposes of subsection 124(3A) of the Act.

 

Schedule 2 - Offers by Minister of compensation where no claim is made

 

Item 1: After Section 74

 

vi.                  Section 74A has been inserted to allow the Minister to make an offer of just terms compensation to a person who has had an interest in their property acquired by the Commonwealth under Section 41 of the Act.

 

vii.                The clause specifies that prior to making an offer, the Minister must be satisfied that the person has had an interest acquired.

 

viii.              Subsection 74A(1)(a) specifies that 12 months must have passed before a Minister can make an offer of compensation to a person who has had an interest compulsorily acquired by the Commonwealth.  This will allow persons time to assess whether they have a compensable interest in the land and submit a claim for compensation.



ix.                  The Minister’s offer of compensation is the amount the Minister considers the person is entitled to in accordance with Division 2 of the Act. 



x.                    Subsection 74A(1)(c) requires that a Minister cannot make an offer under this Subsection if a claim has been submitted under Section 67 of the Act.  This ensures that a situation cannot arise where an offer has been made under both Section 70 and Subsection 74A of the Act.

 

xi.                  Where a Minister makes an offer of compensation, he or she must explain how the amount of the offer was arrived at.  This is consistent with

Section 70 of the Act.

 

xii.                Subsection 74A(3) provides that a claim cannot be made under Section 67 of the Act if an offer is made under Section 74A.  This ensures that a situation cannot arise where an offer has been made under both Section 70 and Section 74A of the Act.

 

Items 2-18:

 

xiii.              These clauses are consequential amendments as a result of the inclusion of Section 74A.  The clauses ensure that the Act is consistent throughout

Part VII.



xiv.              The clause amending section 82 allows the amount of compensation offered by the Minister to be reviewed in the Federal Court.

 

xv.                The clauses have been amended to encompass both a situation where a person has submitted a claim for compensation under Section 67 of the Act and where the Minister has made an offer under Section 74A of the Act.

 

xvi.              Most of these amendments involve the replacement of “claimant” with “person”.

 

Items 19-21:

 

xvii.            These clauses are consequential amendments as a result of the inclusion of Section 74A.

 

Item 22: After Section 101

 

xviii.          Section 101A has been inserted to allow the Minister to make an offer of compensation to a person who has suffered a loss.

 

xix.              Under Section 101A a person is entitled to compensation if they have suffered a loss as a result of: 

(a)     powers conferred under Part III of the Act;

(b)     the revocation of a pre-acquisition document because of either Subsection 44(4) or 46(3) of the Act; or

(c)     the revocation of a Section 24 certificate because of Subsection 46(3) of the Act.

 

i.                     This provision differs from that of Section 74A insofar that Section 101A relates to compensation for a loss suffered as opposed to compensation for a compulsorily acquired interest under Part VII of the Act.

 

ii.                   The clause specifies 12 months must have passed before a Minister can make an offer of compensation to a person who suffered a loss under Section 101A. 



iii.                 Should 3 years elapse since the loss was suffered, the Minister will not be able to make an offer for compensation.  This is consistent with similar provisions for losses incurred under this Part of the Act.

 

iv.                  If an offer of compensation is made under Section 101A, the Minister must explain how the amount of the offer was arrived at. 



v.                    This clause stipulates that a claim cannot be made under Section 97 of the Act if the Minister has made an offer under Section 101A.  This ensures that a situation cannot arise where a Minister makes an offer under both Section 98 and Section 101A of the Act.

 

Items 23-46:

 

vi.                  These clauses are consequential amendments as a result of the inclusion of Section 101A.  The clauses ensure that the Act is consistent throughout.

 

vii.                The clauses have been amended to encompass both a situation where a person has submitted a claim for compensation under Section 97 of the Act and where the Minister has made an offer under Section 101A of the Act.

 

viii.              Most of these amendments constitute the replacement of the word “claimant” with “person”.

 

 

Item 47: Subsection 127(1)(a)

 

ix.                  This clause enables the Federal Court to identify an interest in land with relation to either a claim for compensation under either Sections 67 or 97 Act or an offer of compensation under Subsections 74A(1) or 101A(1), (2) or (3).

 

x.                    The ability of the Federal Court to determine interest in relation to a Minister’s offer is consistent with the rest of the Act.

 

Item 48: Application

 

xi.                  This clause provides that the amendments listed in this Schedule commence on a single day to be fixed by proclamation or, if they do not commence within 6 months of the day the Bill receives Royal Assent, on the first day after the end of that period.

 

Schedule 3 - Other Amendments

 

Item 1: After Subsection 5(2)

 

xii.                This clause enables provisions under Section 18B of the Cocos (Keeling) Islands Act 1955 to apply to land on Cocos Islands, without reference to the Act.

 

xiii.              The purpose of this clause is to correct an oversight.  The Cocos (Keeling) Islands Act 1955 was unintentionally omitted from inclusion into Section 5 of the Act when it was amended in 1989.

 

xiv.              The inclusion of the Cocos (Keeling) Islands Act 1955 is consistent with similar provisions under Section 5 of the Act for the Section 21A of the Christmas Island Act 1958 and Section 62 of the Norfolk Island Act 1979 .

 

Item 2: Subsection 21(1)(a)

 

xv.               This clause is a consequential amendment as a result of the inclusion of Item 1 of this Schedule.



Item 3: Subsection 40(3)

 

xvi.              This clause provides that a statement will not have to be lodged with each House if its meets the criteria of Subsection 40(3A).

 

 

 

 

Item 4: After Subsection 40(3)

 

xvii.            This clause provides that an acquisition by agreement in the market need not be laid before each House. 



Item 5: Application

 

xviii.          This clause provides that the amendments listed in Items 3 and 4 of this Schedule commence on a single day to be fixed by Proclamation or, if they do not commence within 6 months of the day the Bill receives Royal Assent, on the first day after the end of that period.

 

Item 6: Subsection 117(1)(a)

 

xix.              This clause is a consequential amendment as a result of the inclusion of Item 1 of this Schedule.

 

Item 7: Subsection 122(3)

 

xx.                This clause transfers the responsibility under Subsection 122(3) from the Attorney-General to the Minister.

 

xxi.              This enables the Minister responsible for the administration of the Act, to authorise land title documents under Section 122 of the Act.

 

Item 8-9: Subsections 138(1) and 138(2)

 

xxii.            These clauses are consequential amendments due to the inclusion of the Minister in Item 7 of this Schedule.

 

Item 10: Section 140

 

xxiii.          This clause allows the Governor-General to make regulations prescribing penalties not exceeding 50 penalty units for an individual for offences against the regulations.  If a body corporate commits an offence against the regulations, they would be subject to a maximum penalty of 250 penalty units.

 

Schedule 4 - Repeal of the Lands Acquisition (Defence) Act 1968

 

Item 1: the whole of the Act

 

xxiv.           This clause will repeal the redundant Lands Acquisition (Defence) Act 1968 .