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Tuesday, 6 November 1973
Page: 1549


Senator BYRNE (Queensland) -The Australian Democratic Labor Party has given this matter a great deal of attention and investigation, and certain facts have been presented to it on behalf of those who are affected by the provisions of the Bill. The question at issue, first of all, is the extent to which this matter in the Australian Capital Territory should be put into a different category from the position which would arise in relation to the resumption of land by the Commonwealth in the right of the Crown lying within the sovereignty of a State. The position in the States would be different because section 5 1 of the Constitution requires the acquisition to be made on just terms. It has been held in the High Court in the case of Teori Tau v Commonwealth that the power of resumption by the Commonwealth does not stem from section 51 and the appropriate placitum under that section but from section 122 of the Constitution.


Senator Wheeldon - Can. you tie this in with Dibb v Cockle?


Senator BYRNE - I have grave doubt whether I should find that an authority on the subject. I think it could be said that the fact that there is such a discrimination is highly undesirable. As this discrimination is implicitly embodied in this legislation it is a matter of grave concern to the Senate that we should perpetuate such a system. We have had occasion many times in this place over the years since my re-election to this chamber to participate in what might be called the normalisation of the Australian Capital Territory; that is, in trying to provide a system of law and to provide an administrative system which would be in harmony with that which applies in other parts of the Commonwealth, whether in the Commonwealth Territories or in the States. We have seen many actions taken in this place and we have seen the imposition of particular types of duty so that this separation, this differentation, between the Australian Capital Territory and the States should be minimised. We have always considered that a highly desirable process in the progress towards what I call the normalisation of this particular section of Australia. Yet implicit in this legislation is an attempt to perpetuate what is a very gross discrimination. It is one which puts the Commonwealth, in right of the Crown, in a particularly favourable and advantageous position in relation to its administration of the Australian Capital Territory as against a citizen who lives and owns land in any other part of the Commonwealth.

I know that there is a natural concern, particularly in these days of rising land prices, the exploitation of land and a tremendous capital accretion in the value of land, by governments to make land available to the public at large at a reasonable price. It would appear that the Bill which is now before the Senate is in terms of this solicitude, concern and philosophy. But it is not sufficient that, in order to propound such a body of ideas, one should be prepared to discriminate against or perpetuate group or individual unjustices. If a situation which requires rectification is in existence the rectification should be done in general terms and not in circumstances which will operate in a discriminatory fashion against those who happen to be affected by it because there is a current problem in this area. That is a very bad system of legislation. It is one which, to my knowledge, has not been followed in any of the legislation which has come before this Parliament. I remember that there was an attempt years ago to amend the estate duty legislation to provide that there should be retrospectivity in its provisions to exclude certain people who had been affected adversely by the then law. That effort did not succeed. Therefore, to select a group of people in this community who can be adversely affected by the proposed law when their rights are already, in one case, in the process of litigation and, in other cases, where the Commonwealth itself has, as far as I have been able to ascertain, by its own laches been instrumental in delaying the acquisition of and payment of compensation for property is to discriminate against these people. To ask them to accept the harshness of the proposed law is, in my opinion, indefensible.

There are people in this community whose families have held land for many years. To give an illustration of the type of situation that has arisen and without mentioning names I will take a case at large in which land is proposed to be acquired by the Commonwealth. In this case Commonwealth officers visited the owner of the land towards the end of 1971 and advised him that resumption would take place. On 15 Septemberabout 5 days later- a letter was received from the Department of the Interior confirming the visit. On 24 September 1971 the owner replied to the letter stating that he was prepared to negotiate. On 9 March 1972 he submitted a valuation. On 26 September of the same year he received a notice to treat under the Act. On 30 November 1972 the property was gazetted for resumption. On 28 March of this year the owner submitted on the prescribed form a formal application for compensation under the Act. On 28 June this year the Department of Services and Property advised him officially that the claim had been accepted for determination.

Those negotiations went on for 2 years or more after the Commonwealth Government first put the shadow of resumption upon this property. In the midst of them this legislation was introduced which gravely imperils and even destroys the rights which people would have enjoyed under the existing law to compensation under the terms that then applied. If the Commonwealth has been, as its own instance, responsible for delays or if the processes were so cumbersome that it was impossible to have the proceedings finalised within that time, I think it must accept the responsibility and that it should not deny to the person whose land it intends to resume the rights he would have enjoyed under the existing law. Therefore, both for the reason which Senator Withers advanced that in one case there is litigation actually in being and rights are still in the process of determination and because of the series of other cases where the quantum of compensation is still a matter for negotiation and consideration and where certain formal steps have taken place over a number of years, it does not appear just or proper that the Commonwealth should intervene by way of this legislation and truncate, deny or circumscribe rights.

I believe, in any case, that compensation should be on just terms in terms of the Constitution as it would apply to property within the States. If, because of the terms of the Constitution, the Commonwealth is not bound by that in law, I think it is certainly bound by it in equity.

Again in the processes of normalisation, I do not think the Commonwealth is entitled to place resumptions in the Australian Capital Territory on a basis that is different from those applying in the States merely because constitutionally it has the power to do so. There is no obligation on the Commonwealth to compensate other than on just terms; in other words, it may compensate in the Federal Territories on the same terms as it is required to compensate in the States. I certainly think that is an option which it should exercise in the proper way. This is a most important principle. I think that on reflection the Government will see fit to reconsider its attitude to this matter. This is a matter of fundamental justice. It is a matter which, if the whole situation is not reviewed, could result in very grave inequities to the people concerned.

For those reasons and because we think it is highly undesirable that one area of Australia, because it happens to come under Commonwealth jurisdiction and finds itself exempt from some other constitutional requirement, should be able to have a discriminatory administrative policy in this respect, the Australian Democratic Labor Party will oppose the legislation and vote against it. If the legislation is rejected in this chamber, we hope that the Commonwealth will reconsider the matter and come to terms with those whose properties are already the subject of compensation discussions and those involved in the other matter and will negotiate on the proper terms in the light of what I would call the principles of equity that should prevail irrespective of the constitutional technicalities. In my opinion the Commonwealth is not entitled to rely on those technicalities. For those reasons the Democratic Labor Party will oppose the Bill and will support the attitude taken by the official Opposition.







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