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Wednesday, 18 July 1906


Senator KEATING (Tasmania) (Honorary Minister) . - I move -

That the Bill be now read a second time.

In moving that this Bill be now read a second time, I wish to draw the attention of honorable senators to the fact that it is, shortly stated, in the main, a re-statement of the principles that Parliament affirmed in the first session, whenwe provided legislation by which the Commonwealth was enabled to acquire property for any of the purposes in respect of which it had power to legislate. It was, I think, fairly early in the session' of 1901-2 that a Bill to provide for the acquisition of property for public purposes was introduced in the Senate. After a considerable amount of discussion, it was passed on to another place, and eventually became law. Since then ;t'he Commonwealth has been working under the provisions of that Act. It was drawn with the experience of the different States to guide the draftsmen. Those experiences were crystallized in legislative form in the statute-books of the different States, in the shape of Acts founded on precedents adopted from Great Britain. As many honorable senators are doubtless aware, about the twenty-ninth year of the reign of her late Majesty, a very important Statute found its place upon the Imperial Statute-book. It is .known as the Lands Clauses Consolidation Act. By means of its provisions, private corporations and others carrying out undertakings that necessitated their requiring the property of individuals, were empowered, after fulfilling certain formalities, to acquire from individuals the properties required for such corporate undertakings. In giving such a large power to private corporations, it was absolutely essential that the private individual who must sacrifice some of his property rights to them should be most amply and fully safeguarded. He should be protected from any aggressive action on the part of corporations, and he should also be assured of receiving from them a very liberal compensation when they do acquire his property for the actual property transferred to them. In addition . to that, he should also be assured, by legislation, of receiving substantial compensation for any incidental damage that might be occasioned to the remainder of his property, either by the severance caused bv the acquisition by the corporation, or incidentally in any other way through the corporation carrying out its works. To that end, the Legislature of the United Kingdom amply protected the individual in every instance. We recognise the same principle in Australia; and. although, many undertakings that properly fall within the domain of private enterprise in the United Kingdom aTe carried out in Australia by public bodies - either bv the Government of the State itself or by municipal corporations - still, it has always been recognised that the private individual whose interest and whose pro- perty rights must, in many instances, be subordinated to these great public enterprises, should be amply compensated for any land of which he may be deprived, or for any property which may be taken from him, and should also be liberally compensated for any damage which may be occasioned to him. In all the States, therefore, we have had legislation enabling the different -States Governments to acquire property for public purposes. In my own State of Tasmania we operated, to a very great extent - at any rate, for the construction of railways - under the Lands Clauses Consolidation Acts. We also had, auxiliary to that, important provisions which specifically dealt with railway construction ; and for other purposes we had other Acts, such as The Lands Vesting and Lands Resumption Acts, which enabled the State, by virtue of a proclamation published in the Gazette, to resume land for different purposes.


Senator Guthrie - What is meant by " public purposes " ?


Senator KEATING - The term is defined in this Bill.


Senator Guthrie - What is meant by the term in Tasmania?


Senator KEATING - They were analogous to the " public purposes " defined here. In- this Bill they are specifically defined, always securing to the individual that full, measure of compensation to which he is entitled for being dispossessed of land, or for any incidental damage that may be occasioned by the dispossession. When the draftsmen originally attempted to provide a corresponding Bill, for the Commonwealth in the early days of the first session of this Parliament, he naturally drew, to a very large extent, upon the existing State enactments, and some of those enactments, as I have said, were based upon precedents which are a good many years old. Though, of course, I do not mean to suggest that they lack any virtue by reason of their antiquity, yet the drafting in itself is totally different from the style or system of drafting to which we have been accustomed in more recent years, at least in connexion with our Commonwealth legislation. That newer style of drafting, I think honorable senators will admit, permits of a more ready perception on the part of the ordinary reader of the principles that are embodied in the different sections; and, apart altogether from the fact that the drafting of the Property for Public Purposes Acquisition Act was not . what we may call up-to-date, and did not permit the ordinary reader to grasp the principles of the measure as readily as we should like, it has been found in actual practice that the working of the Act has effected very many inconveniences. It was the intention of the Government, therefore, in the light of the experience that they and previous Governments have had in the working of the Property for Public Purposes Acquisition Act, to introduce into this Parliament a Bill which, whilst not radically departing from any of the principles of that measure, will supplement those principles by new provisions of which experience has dictated the necessity. Honorable senators who were not present in the first session of the Federal Parliament, when we passed our Property for Public Purposes Acquisition Act, have doubtless made themselves familiar with it, if not before the introduction of this Bill, at any rate since the 03111 has. been before the Senate. For their benefit, I should like to indicate in a few words, without going into details, what are the main provisions of that Act. In the Property for Public Purposes Acquisition Act we provided that the States might dispose bv sale or lease to the Commonwealth of any State lands for the public purposes of the Commonwealth. We provided also that an individual who had the title to lands might likewise sell them or lease them to the Commonwealth for public purposes. Very often an individual holds lands under a title which casts upon him certain obligations, or certain trusts, on behalf of particular persons. It may be that lands are held on behalf of an infant, or of a married woman, or of some other person who is under certain legal disabilities in connexion with the disposition of lands. Our Act accordingly provided that such a person having the legal1 title to land, would be enabled to dispose of it to the Commonwealth, under the provisions of the Act, for the public purposes of the Commonwealth. Provision was also made with regard to the purchase money paid in cases such as those of which I have given illustration. It should be applied in such a way that those who were properly entitled to the interest in the land should receive that purchase money. Then there were provisions, not extensive, but sufficient, to enable the Commonwealth to acquire lands. Power was given to acquire land for public purposes, either from an individual or from a State, and we inserted provisions enabling those lands to be acquired either by private agreement or by compulsory process. So far as the former method is concerned, when the Commonwealth did enter into a private agreement with a State or an individual for the acquisition of land, the Act was practically no longer needed, because all the details as to compensation - when and to whom compensation had to be paid, and everything of that kind - would naturally form part of the agreement that the Commonwealth and the other party entered into. But so far as compulsory purchase or compulsory acquisition was concerned, provision was made, and the system established by the Bill was that the Commonwealth should acquire the lands on publishing a notice in the Gazette and in a newspaper circulating in the district where the lands were situated. Further, it was) provided, if I remember rightly, by an amendment introduced in the Senate, that the owner himself, immediately after the publication of the proclamation in the Gazette, should receive a notice directing his attention to the fact that the Commonwealth was about to acquire the land. Provision was also made to enable Parliament, in the next succeeding session after any such acquisition, to avoid the acquisition within a certain period - that is, to declare that- the acquisition should not take place, when, of course, the land would go back to the person from whom it had been sought to acquire it. The ordinary provisions were made for registering any such acquisition, so that the Commonwealth should gel: the title registered in its name, like any ordinary purchaser in the case of conveyance or transfer. Provision was made enabling the Commonwealth, in connexion with the compulsory powers of purchase, to enter on land to inspect, and to ascertain' if it was suitable for the purpose under consideration) at the time. The Commonwealth was also empowered to take materials from the land under certain circumstances, always subject to a provision that the owner should be compensated by way of rent for such temporary occupation, and also directly for the materials removed. There was a chapter in the Act in which the whole question of compensation was dealt with very extensively. Provision was made for the person who was entitled to compensation to forward his claim to the Minister of the particular Department acquiring the land, and also to the Attorney-General. Then, if the Commonwealth did not acquiesce in the amount claimed, provision was made for the determination of the question. We decided, after considerable discussion, that the tribunal should be a Judge, without_a jury or assessors. It is needless for me to enter into all the reasons which animated honorable senators on that occasion in providing that a Judge of the High Court, or, until the High Court was established, a Justice of a Supreme Court should be the tribunal. It is sufficient for me to say that, after the little experience I have had in such matters, it was a decision which had, at any rate, my hearty concurrence. We also made provision for the payment of compensation when determined, and for the investment or the deposit of compensation in the Treasury, when it had not been taken up by the claimant, and for the right of the claimant to the interest that would accrue on the amount determined in his favour and unpaid.


Senator Millen - I see that the time limit within which the compensation had to be paid is absent from the Bill, although provided for in the original Act.


Senator KEATING - I think I shall be able, in Committee, to explain that to the satisfaction of the honorable senator, who, I think, will see that the Bill as it stands is much preferable to the provision of a time limit. We also placed in the Act the necessary provisions as to the claimant executing all necessary conveyances and transfers, the costs in connexion with the same being charged to the Commonwealth. A chapter in the Act dealt with the different interests that would arise in cases where the lands transferred were subject to mortgage, lease, or any incumbrance. Those, in -general terms, are the particular matters with which the existing Act deals. Honorable senators, who have had the Bill in their hands for some time, are naturally anxious to know to what extent this Bill affects the existing Act. At the outset, I may say that in the main the Bill is a redraft or re-casting of the existing Act. The Bill is, I think, drafted in better form, making the law more easily understood bv all who may have recourse to it. It is well for us to remember that this legislation does not merely concern the Departments of the Commonwealth, but may affect at different times quite a large number of persons of all ranks, and classes in the community. The Bill empowers the Common wealth, under certain circumstances, when it requires property for public purposes, to acquire that property, and therefore the Bill is one to which recourse may not improbably be very often had by quite a number of private individuals. It is essential that, complicated as the subject may be, the law should be as easily understandable as possible by every one. The Bill, therefore, is to a large extent a re-cast of the original Act. There has been no radial interference with the principles of the Act, but. as I said before, some supplementary provisions have been included, which the experience of the different Departments of the Commonwealth have shown to be necessary. There have been some amendments of the existing provisions ; and I propose now to point out what these amendments are, and to indicate shortly some of the reasons why they have been introduced. If I take that course it may possibly bring more directly home to the minds of honorable senators what is, in effect, the alteration in the law that the Bill proposes to bring about.


Senator Mulcahy - Under the Bill, is there a right to enter on and survey land it mav be desired to acquire?


Senator KEATING - Yes,,


Senator Mulcahy - Is there that right under existing legislation?


Senator KEATING - Yes; and we have the power to remove certain materials under the existing legislation. But we shall have to deal with all these matters in Committee, when I shall be very pleased to help honorable senators as far as I possibly can to a proper understanding of the differences which exist between the clauses of the Bill and the sections of the present Act. A few alterations have been made in the definition clause, and amongst these is a re-definition of "Crown lands." Previously we had a definition of " Crown lands," which excluded from its scope land in respect to which what might be called a bargain was going on between the Crown and a private individual. By the definition of "Crown lands" in the Bill we mean any land, the property of a State, whether reserved or dedicated for any public purpose or not. Previously if there were negotiations going on for the purchase of the land, and an individual in the community had some interest or modified title in it, the land ceased to be under the Statute Crown land.- Under the Act, the Commonwealth could not deal with the

State as proprietor, but was compelled to enter into arrangements with the person who had a modified interest in the land, and also with the State. Under this Bill, the Commonwealth will deal directly with the Slate in respect of such lands; and the relations of the State and the individual, who may have what might be called an incohate title, will be determined as between those parties themselves.


Senator Millen - That is nice for the conditional purchasers of New South Wales !


Senator KEATING - I am perfectly satisfied that the conditional purchasers of New South Wales, or of any other State, can very well trust* to the State with whom they are dealing, and with whom they find themselves in contractual relation. But hitherto the experience of the Commonwealth is that in such cases negotiations have beer considerably hampered through the Commonwealth having to deal with two parties. It is obviously to our advantage to narrow down our negotiations to as few as possible. I am now indicating what is the nature and scope of the amendments. We have in the Bill a definition of " land " which does not appear in the original Act. There is a definition of "land " in the Acts Interpretation] Act, but that is intended to cover a wide variety of Statutes, and it is not a comprehensive definition. This Bill deals peculiarly, and, I might say, almost exclusively, with land, and it is essential that there should be a much more comprehensive definition than the ordinary bald definition in the Acts Interpretation Act, which, though very suitable for general purposes, is scarcely applicable to a measure which deals specifically with land. Clause 6 is a new provision, the object of .which is to make it abundantly clear that when the Governor of a State on behalf of the State exercises the power of disposing of the lands of that State to the Commonwealth for public purposes, he exercises that power directly under the authority of this Act. As honorable senators know, our legislation on all these subjects within our legitimate domain is supreme. If there is any repugnance between our legislation and that' of a State on a subject in the common domain, of both State and Commonwealth, the legislation of the State is void to the extent of the repugnance. Under the existing legislation, there is some doubt in the minds, at any rate of some persons in the States, whether, when the Governor exercises the power of alienation to the 'Commonwealth, he does so subject to the limitations of the State law. I have been assured that there is no doubt that a State Governor is not, in such cases, subject to the limitations of the State -law. But to set at rest any such doubts, the new clause 6 provides that the Governor of a State, when acting, does so " by force of the Act, notwithstanding anything to the contrary in the law of any State."


Senator Clemons - Is that the whole difference ?


Senator KEATING - That is the whole substantial difference, though I do not say it is the whole verbal difference.


Senator Clemons - I mean the whole substantial difference. The original Act gives the Governor power to execute conveyance, ' whereas the Bill seems to give him power to sell, and that surely is a wide difference.


Senator KEATING - I think the honorable senator will fmd that there is no difference.


Senator Sir Josiah Symon - The only power under the original Act was to enable the Governor of a State to execute an instrument, whereas the Bill enables the Governor of a State by Executive act to repeal the laws of a State.


Senator KEATING - I can assure honorable senators opposite that I am indicating to the fullest extent the object of the different alterations. There is no intention on the part of the Government of the Commonwealth, or, so far as I now, of the States, to alter the procedure at present in vogue on the point indicated. The idea is to rest the authority of the Governor of a State, in whatever he does, entirely on this Bill, so that there shall be no doub't as to whether, in the exercise of the powers thus vested in him, he is limited by any State legislation. That is the only object of the clause. I am particularizing these amendments so that I may indicate what their object is; I do not particularize them now for the purpose of entering into any discussion, which would only be anticipating, so to speak, our deliberations in Committee.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - I presume the Minister will not simply indicate the alterations, but will give some reasons for their having been made?


Senator KEATING - That is what I purpose doing, and the course I am taking will, I think, simplify the matter for all honorable senators. If by any chance any clause goes further, or does not go as far as the particular object intended, honorable senators will have an opportunity, if they agree with the object, to bring that fact under consideration in Committee. A corresponding addition is made in clause 8 ofl this Bill. Honorable senators will see in that clause certain words included within parenthesis which 'are introduced from the original English legislation upon the subject, and do not find a place in the existing Act. They will serve to rest the authority of a private individual disposing of land under this Bill purely on this Bill, and he will not be hampered in any way by any consideration of State legislation. Such a person as an executor or administrator, a lessee for life, or for a number of years, a guardian, or committee for* a lunatic or idiot, and other persons referred to in the paragraphs of the clause, in exercising the power given by this Bill will have their authority resting upon this Bill alone, and not subject to the limitations df any State law. That is the object of the inclusion of the words referred to.


Senator Sir Josiah Symon - Is there not the same power under the existing Act?


Senator KEATING - There may be. I am not certain as to that, but this is to make it abundantly clear. Questions have arisen with regard to the point, and different views have been taken of it by different persons, and, I understand, in different States.,


Senator Sir Josiah Symon - Will the honorable and learned senator mention some of the views which render this amendment necessary ?


Senator KEATING - I have not the details, but I have been informed by the Department that persons have raised the question whether they can, under the authority df the existing Act, execute transfers, assignments, or sales, seeing that they are limited, by reason of State legislation, on account of the peculiar position in which they stand with regard to the land. It is eminently desirable that every scintilla of doubt in the matter should be removed in order that the Commonwealth mav as expeditiously and as reasonably as possible effect the acquisition of any land which may be required for public purposes. In different parts of the Bill, honorable senators will find references made to the Supreme Court. Generally speaking, when in the existing Act reference is made to the Court, it is the High Court of. the Commonwealth, or a Justice -thereof, or, pending the establishment of the High Court, the Supreme Court, or a Justice of the Supreme Court of a State .that is meant. In many instances, since the establishment df the High Court, it has been found that work in connexion with the acquisition of land for public purposes has had to be taken to the High Court, which might much more easily and equally advantageously to all concerned, and' with much more expedition, have been dealt with by the Supreme Court df a State, or a Justice of the Supreme Court of a State. Consequently, honorable senators will find in more than one place in this Bill that the Supreme Court of a State is invested with co-ordinate powers with the High Court in connexion with various matters affecting the acquisition of land for public purposes. For instance, in clause 11, dealing with the application of the purchase money when paid to persons having partial interest, it is provided in paragraph d that it shall be applied -

In such a manner as the High Court or the Supreme Court directs.

At present, and since the establishment of the High Court, the Supreme Court of a State has no jurisdiction to make such a direction. Again, there is a corresponding re-introduction of the Supreme Court in the first line of clause 12, dealing with the power df the Court to make order's 'as to purchase money, and it is provided that -

The High Court or the Supreme Court may, on the application of any person interested, order that any purchase money - and so on. Later on. in clause 38, which deals with actions for compensation, it is provided that - '

An action for compensation may be instituted by the claimant against the Commonwealth in the High Court, or in any State Court of competent jurisdiction.

Under the existing law, the High Court alone can entertain suits of this character. In some instances where the amount of compensation is verv small, the claimant can, though honorable senators may think it somewhat strange, practically hold the High Court, so to speak, over the Commonwealth, and force the Hands of the Commonwealth. The provisions as to the payment of costs in connexion with these compensation cases, as honorable senators are aware, are in our existing legislation, as well as in most corresponding legislation elsewhere, very favorable indeed to claimants. It is only in very special instances that costs are awarded against, them. Therefore, where a claimant has a very small claim, he knows that if the Commonwealth authorities do not come to terms with him, he can take them to the High Court, and he may do so in a case in which the costs would be altogether disproportionate to the amount of compensation to which he is entitled. As a consequence, claimants, recognising this, have not been slow, in some instances, to take advantage of the situation, and to refuse to come to terms with the Commonwealth. They have been able to say, " If you do not come to terms with us quickly, we will have to institute an action, which must be heard in the High Court, and the odds are that you will have to pay your own costs and ours as well."


Senator Sir Josiah Symon - That is not effectively met in this Bill, because it gives the alternative of a State Supreme Court or the High Court


Senator KEATING - But there is, later on, a provision that the Court may, in its discretion, award costs against the party claiming, if it be thought that the action should have been brought in another Court of competent jurisdiction.


Senator Sir Josiah Symon - That might be so under the existing Act, because costs under that Act are in the discretion of the Court.


Senator KEATING - I think not. I think that costs are differently provided for. If the honorable and learned senator can strengthen the provision here sought to be made, without doing injustice to the Commonwealth or the individual claimant, his efforts in that direction will be welcomed.


Senator Clemons - Has the honorable and learned senator passed clause 15 in his consideration of the Bill?


Senator KEATING - [I have' not yet referred to it. We have made an amendment in clause 13, the marginal note to which reads - " Person in possession to be deemed the owner." Previously, that provision was limited to cases where compensation was actually paid or deposited. Under this Bill the provision applies, to all cases where compensation is merely payable, and, further, it is not necessary that a person should make out what is called a prima facie title before he shall be deemed to be the owner. ' That provision in the corresponding section of the existing Act is practically inoperative, because the effect of it is that a person shall be deemed to be the owner who is prima facie proved to be the owner. There have not been many alterations made in .Part II. of the Bill, which deals with the acquisition of land. The provisions of the existing Act have been re-arranged, and I think honorable senators will find that they have been made more clear to the intelligence as well as to the eye. The clauses in this part of the Bill set out succinctly and in small paragraphs the effect of what is contained in very_ lengthy and cumbersome sections of the existing law.


Senator Clemons - Why are the words "required for public purposes" omitted after the word " land " in sub-clause 1 of clause 15? These words appear in section 3 of the existing Act.


Senator KEATING - The only object is to shorten the drafting of the clause.


Senator Sir Josiah Symon - But as the clause stands it does not limit the acquisition to public purposes.


Senator KEATING - The Bill itself does that.


Senator Sir Josiah Symon - No. Where?


Senator KEATING - It is a Bill for an Act relating to the acquisition by the Com'monwealth of land required for public purposes.


Senator Clemons - Does the honorable and learned senator rely entirely upon the title?


Senator KEATING - Yes. The omission of the words referred to is merely to shorten the section of the existing Act - there is no other design in it.


Senator Lt Col NEILD (NEW SOUTH WALES) -Gol. Gould. - It would be much safer to have the words in.


Senator Clemons - The existing Act has practically the same title, but it repeats these words in section 3.


Senator KEATING - Many of the superfluous words in the drafting of the existing Act have been omitted in the draft.ing of this Bill. As no doubt Senator Clemons has noticed more than once, the existing Act in many of its sections has been drafted on what might be called the old system of conveyancing. Many of the old conveyancers were abundantly cautious, and very often unnecessarily extended the clauses of documents drafted by them. There is no object in the omission of the words referred to in clause 15. other than that of shortening the section.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould.-- Brevity is sometimes dangerous.


Senator KEATING - Quite so; but I think that honorable senators will find that certainty has not been subordinated to brevity in this case. It .has been possible to reduce the verbiage of the sections of the original Act. The corresponding clause in the existing Act reads -

The Governor-General may agree with the owners of any land which is required for any public purpose, and with any State where such land is Crown land of the State - and so on. In the definitions in the Bill before honorable senators the word "land" will include the Crown land of a State, and a reference to the Crown land of a State in the various clauses becomes unnecessary. This enables us to considerably reduce the verbiage of sub-clause i of clause 15 in comparison with that of section 3 of the existing Act.


Senator Clemons - That reduction is arrived at by the definitions, but I have referred to what is a very significant omission.


Senator KEATING - In the same part of the Bill dealing with the acquisition bycompulsory process we take advantage again of the fact that the word "owner" under this Bill includes a State by providing in sub-clause 1 of clause 16 that -

The Governor-General may direct that any land may be acquired by the Commonwealth from the owner by compulsory process.

In sub-cluase 2 of this clause there is an alteration. According to the existing law, it was necessary that the notification should only be published in the Gazette, but that it should also be published in a newspaper published or circulated in the State or part of the Commonwealth wherein the land is situated. That portion of the original provision has been eliminated, and the publication under this Bill would only appear in the Gazette. If I recollect rightly, when the Property for Public Purposes Acquisition Bill was first introduced in the early part of the first session, the notification was required to be published in the Gazette, and by advertisement in a newspaper in or circulated in the State or district. Subsequently to that, I think on the motion or suggestion of Senator Symon, additional provision was made for notice, and we find that in a subsequent section of the existing Act the obligation is thrown upon the Commonwealth of sending notice to the person whose land is to be acquired. At any rate, we have, in addition to the Gazette notice, provision that the person concerned' must receivenotice if he is reasonably getatableLater on, we shall come to a clause in which an amendment has been made in regard to that matter, and which, providesfor still further precaution in the case of an owner of land who may be absent from, the Commonwealth. The next amendment of any consequence is contained in. sub-clause 2 of clause 17. It really makesprovision as to the effect of the notification of resumption or acquisition in thecase of Crown lands. It deals with the effect of it, so far as the dedication or reservation is concerned. Clause 19 dealswith the subject of giving notice directly to the owner of the intention to acquirehis land. Sub-clause 2 says -

If the owner cannot after diligent inquiry befound, a copy of the notification, together witha plan of the land, shall be left with the occupier of the land, or if there is no occupier, shall be affixed upon some conspicuous part of the land.


Senator Sir Josiah Symon - Substantially, it is the same as sub-section 1 of section 13 of the present Act.


Senator KEATING - The effect of thealteration is that if the owner is out of the Commonwealth, we still must serve him,, or send him a notice. Under the existing Act it is not necessary to send? him a notice; a copy need only be left with the occupier of 'the land. So far when owners are out of the Commonwealth that apparently is the only procedure adopted. Under the proposed' amendment, if the owner is out' of the Commonwealth it will still be necessary tosend him a notice bv registered- letter. But if it is not get-at-able by post or otherwise, then and then only can recourse behad to the method of serving the occupier with a notice, or posting it upon a conspicuous part of the land. In clause 27 we find a corollary to the definition, of" Crown land, which, as I said before, results in placing the Commonwealth in thisposition, that iri connexion with these landsit will deal with one party only, and that is the State. There are' no other substantial amendments of the existing law until we come to Division 2 of this part of theBill, headed " Claims for Compensation."" Clause 33 deals with the question of claims being served upon the Minister. As I said previously, a claimant will r.o longer be under the necessity of serving a duplicate notice of his claim, that is to say. one- upon the Minister affected by the acquisition, and another upon the AttorneyGeneral. A claim to the Attorney-General will be absolutely unnecessary. Then provision is made in the clause for prescribing the forms in which claims shall be sent in. At present there is a lengthy provision dealing with the question of claims, which is somewhat complicated, and not very readily intelligible, at any rate, to the lay mind. In clause 34 we have effected a substantial alteration, which is rendered necessary through what must have been an oversight in the drafting of the present Act. In paragraph b we provide that in a claim for damage suffered by reason of the exercise of any powers under Part III., the notice of the claim shall be given within 120 days after the completion of the acts in respect of which compensation is claimed. In the corresponding section of the present Act we placed together, and dealt with jointly in this connexion, a claim for compensation for the land itself, and a claim for incidental damage. We provided that in each case the claim should be forwarded within 120 days after the acquisition, or after the notification. Obviously the matters of incidental damage and compensation for land actually acquired need not necessarily date from the same moment. The lands may have been gazetted as acquired ; they may have been entered upon 100 days afterwards, and on the tenth day after they had been entered upon the incidental damage may have been occasioned. Under the present law, the claim for that damage will have to be served upon the Minister within 120 days from the acquisition. By this Bill it is made 120 days from the acts complained of occasioning the damage. It puts these cases of compensation not upon the same but upon an exactly parallel plane to a case of compensation for land actually acquired. Sub-clause 2 of this clause enables the Minister to extend the time for putting in a claim. At present the time may be extended, but in order to get an extension the claimant has to apply to the High Court. In clause 35 we re-enact, in effect, the existing legislation; but we do not tie the Minister down to any particular time within which he must forward the claim on for report, nor do we tie down the officers to whom he sends for a report to any particular time within which they may furnish it. It makes the existing provision much more elastic. In future, after the Minister has obtained a report as to the valuation which the Commonwealth should set upon the land, he will not be bound to communicate it to the claimant.


Senator Lt Col Gould - But will the claimant be able to get compensation if the Minister does not want to give him any?


Senator KEATING - There is a time within which the claimant may sue the Minister after the notification of the acquisition. Sub-clause 3 of clause 35 is a new and very important provision. It casts upon the claimant the onus of accepting or rejecting by notice in writing the offer that the Minister may make to him to compensate him. There is no similar provision in the present law, and the consequence is that, when the Minister has the claim examined, he may obtain a valuation which is utterly disproportionate to the amount of the claim. He may notify the claimant of that fact, and of how much he is going to pay him, and the claimant can simply sit idly back and do nothing. He, so to speak, is upon velvet. The Minister cannot force him to take the money, and the claimant need not take it.


Senator Sir Josiah Symon - As the Minister has the land, why need he bother?

SenatorKEATING. - The claimant knows that his money is bearing interest all the time. Practically, he can hang the matter up. I am sure that my honorable and learned friend would not like to have a lot of moneys in connexion with different lands hung up.


Senator Sir Josiah Symon - They are not the Minister's moneys. . He pays in the smallest sum which he is advised to pay in respect of the land. That belongs to the owner of the land, and why should he not leave the money there at interest, if he likes ?


Senator KEATING - Quite so. No Minister wants to have the public accounts hampered by a number of accounts such as these, which require acertain amount of attention and watching. Under this provision, it is proposed that the claimant shall, within sixty days, notify his acceptance or rejection of the offer.


Senator Sir Josiah Symon - But the money can remain there, all the same?


Senator KEATING - Quite so.


Senator Sir Josiah Symon - It is not proposed that, if the claimant should not notify within sixty days, the Minister shall take out the money, and the land-owner forfeit it?


Senator KEATING - Certainly not. In a later part of the Bill there are provisions dealing with, money so left with the Government, and other steps are taken to induce a claimant to lift his money as speedily as possible. In Division 3 of Part IV. of the Bill, provision is made for the methods by which any dispute or difference as to compensation shall be determined - agreement, action for compensation, or by a proceeding in the Federal or a State Court on the application of the Minister. Paragraph c of clause 37 is entirely new. The Departments have found that sometimes a claim has been put in, the Minister has notified the amount which he will pay to the claimant, and the claim is one in dispute. The onus now is upon the claimant to take an action for compensation, and unless he does, the matter remains absolutely hung up. In order that it shall be expedited, if the claimant shows an indisposition to take proceedings in a Court, we now empower the Minister to initiate proceedings to prevent the whole matter from being hung up indefinitely. That, I repeat, is a new provision. I have already made a reference to clause 38, which gives to the States' Courts jurisdiction, or enables them to share juris- diction, which at present is exclusively enjoyed by the High Court. In paragraph c,Senator Symon will see more particularly the matter to which I referred, when he raised the question as to the alternative still being open to a claimant to go to the High Court, or to any other Court. It says -

If the Court is of opinion that the action might have been brought in a lower Court, costs, if awarded to the claimant, shall only be allowed on the scale applicable to costs in the lower Court, unless the Court certifies that special circumstances existed which made it proper to institute the action in the higher Court.

That is a provision which I have no doubt > has its analogy in the legislation in many qf the States. In Tasmania, we have a similar provision in connexion with actions which are maintainable, both in the Supreme Court and in -inferior Courts of statutory jurisdiction. \


Senator Sir Josiah Symon - Is there any definition or indication of the proceeding which the Minister may take, under paragraph c of clause 37?


Senator KEATING - Yes, in later provisions, to which I shall, refer presently. Clause 39 is another provision which is designed as far as possible to prevent matters from being hung up as they have been in many instances. That is, if within six months the claim has not been determined, and no proceeding has been taken, then the Minister may apply to the High Court, or to a State Court, in which an action for compensation may be instituted, to determine the claim, and1 the Court shall, after notice to such persons as it directs, hear the application and determine the amount of compensation. It is also provided that the determination of the Court shall be final and conclusive, and that the Court may make such an order for costs as it thinks fit. That is a provision which enables the Minister to invoke the jurisdiction of the Court in such cases. As I have said, the object of this is to prevent matters being hung up. I understand that some of the Departments have been considerably hampered, under existing legislation, by reason of the indisposition of claimants to pursue their claims. In other instances where money has been determined' upon as the compensation to be paid toclaimants, that money has not been takenup by them. The ultimate responsibility to hand it over to the claimants, and to guard it in the meantime, rests with theGovernment, and the Government does not welcome any responsibility other than that which it owes generally to the public. Consequently, this legislation is designed to induce claimants, when their compensation has been fixed, to lift it as early aspossible.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - They get no interest after it Kas been paid into the Treasury.


Senator KEATING - We have a provision as to when payment of interest shall cease. That is contained in clause 41 of this Bill. Clause 40 is analogous, in somerespects, to the- preceding clause. But, whereas the latter provides that where the party does not go on with his proceedings for compensation, this is to deal .with a case where no application for compensation is made at all - where the acquisition has taken place, where the owner, so far as was possible, has been notified, and where noclaim has been put forward1. I may mention here a matter that I overlooked in dealing with another part of the Bill - that this measure abolishes the right at present enjoyed by claimants in respect of claims not exceeding ,£1,000, to have recourse to arbitration. Under the existing legislation -I think it is embodied in section 18, subsection 1, of the Act - the claimant has the option, without the consent of the other party, of having the matter determined by arbitration. This Bill abolishes that right.


Senator Mulcahy - Why take away the power to arbitrate in small cases?


Senator KEATING - The reasons why arbitration was dispensed with in the larger cases over£1,000 apply, we think, equally to cases in which the amount involved is less than that amount. I have no doubt that my honorable friend has had some experience of arbitration proceedings, and I think that, with all due deference to those who generally take part in those proceedings, it must be admitted that the superiority of the tribunal that is proposed by this Bill - namely, a Judge - is very considerable.


Senator Mulcahy - But why abolish the right in small cases?


Senator KEATING - I do not care to pit my own personal opinion against the judgment of my honorable friend, who has been the administrator of the Lands Department of one of the States, but, so far as I have seen, in cases where arbitration has been the method of determining disputed amounts, it has been peculiarly inappropriate, more especially where the Government had to pay the costs in every instance where the claimant received more than the amount which he claimed. We know, for instance, that such cases as the following have occurred where there have been many small properties to be acquired. A person who is a claimant appoints his arbitrator. Does he go round looking for a man of a judicial turn of mind? No. He naturally selects his best friend. His best friend in such cases often happens to be his next-door neighbour, who, indeed, himself happens very often to be closely interested in the transaction. It may be that next day the next-door neighbour himself will be a claimant. So that Mr. A., the claimant of to-day, appoints Mr. B., his nextdoor neighbour, who may be a claimant to-morrow, as his arbitrator ; and when Mr. B. claims against the Government he appoints Mr. A. to arbitrate for him. That is by no means a hypothetical case.


Senator Lt Col Gould - Then the Government appoints its own man, and the two arbitrators appoint an umpire.


Senator KEATING - In many instances the great battle takes place over the appointment of the umpire. Each arbitrator naturally endeavours to secure the appointment of one who will take his own view of things. I do not think that arbitration, especially in small matters, is the best method of procedure. As a matter of fact, a man who is appointed an arbitrator can very rarely escape the knowledge of nearly all the evidence relating to the transaction long before it is officially brought before him.


Senator Fraser - And arbitration is not very cheap either.


Senator KEATING - No; in small matters the costs of arbitration are usually disproportionate to the results. In clause 41provision is made with the object of discouraging the indisposition on the part of claimants to terminate their transactions with the Government. Where the compensation is not more than the amount offered by the Government in satisfaction of the claim it is provided that the claimant shall only receive interest up to the date when the offer of the Minister was made. Under the existing law the interest runs from the time of the acquisition until the payment of the money to the claimant, or until the deposit of the compensation in the Treasury. A claimant claims from the Government, say,£1,500 for certain land which has been acquired for defence purposes, or for the Post Office, or for a Customs building. Say that he is granted or offered£850. He declines to take that sum. When he finds that he has to take it, he lets it lie, and gets 3 per cent. interest on it from the time when, the land was acquired - not from the time when the amount was awarded to him - until the amount is paid over to him. He says, " I am not going to take it away; let it lie with the Government, who will pay me 3 per cent.interest upon it." The transaction is completed, so far as the Government is concerned, and why should the Government be compelled to keep accounts for people who want investments for their money or who cannot find a better means of investing it? They want the Govern ment to take the responsibility of holding their money for them, and to pay it over to them whenever it suits their convenience to take it. Of course, that interest would cease if the amount were deposited in the Treasury ; but under this provision, where the claimant gets less money when the compensation is determined than he was offered by the Minister, the interest is only to run from the time of the acquisition of the land until the time when the money was actually offered to him. In clause 43 there is an alteration, to which Senator Millen has referred. It also belongs to the time limit provision, and it says -

Any claimant or person entitled to any compensation shall, upon application to the Minister and upon making out, lo the satisfaction of the Attorney-General, a title to the land in respect nf which the compensation is payable, and upon executing such conveyances or assurances as the Attorney-General directs, be entitled to receive payment of the compensation.

The section of the Acf which that clause amends is, I think, section 20. The reason why the time in which to pay is proposed to be abolished is because it is provided that the claimant shall be entitled to his payment forthwith.


Senator Millen - But we know what " forthwith " means in the eyes of a public Department when it has to pay money.


Senator KEATING - The provision as to payment within one month was more directory than anything else.


Senator Millen - If it is only directory there is no objection to retaining it.


Senator KEATING - The whole object of this Bill is to insure expedition in disposing of claims of this character. The Government wants to get these matters out of hand as quickly as possible.


Senator Sir Josiah Symon - Does not the Minister think that an effectual means of doing that is to stop the claimant's interest? He will pretty quickly take his money when his land is gone.


Senator KEATING - If he succeeds in. getting by way of compensation more than the Minister offered to him, of course his interest does not cease to run. His interest runs from the time of acquisition to the time of the deposit of the money in the Treasury; and this Bill would enable the Treasurer to invest such deposits in the Government securities of any State.


Senator Millen - Where a man's land has been acquired by the Crown, and his claim has been adjusted, and he is entitled to a certain sum, the existing Act says that that sum shall be paid within the month. This Bill leaves it optional for the Minister to hang on to it for twelve months.


Senator KEATING - The Act has not been altered with the view to enable the Government to hang on. to the money.


Senator Millen - There seem to be so many provisions which increase the power. of the Government as against the owners of property that I am a little bit suspicious.


Senator KEATING - No alterations are made in the original Act, except such as are justifiable in the public interest. Although I have explained that many claimants have not taken the compensation awarded to them, yet this Bill is not put forward in any spirit of revenge, but simply to enable the Departments in future to get these bothering claims out of the way as speedily as possible. There are some honorable senators present who have been Ministers of the Crown in various States, and I am sure that they will agree with me that the determination and dealing with these claims takes up a considerable amount of the Minister's time, especially in connexion with the acquisition of lands for public purposes. Under clause 44 it is provided that the amount awarded as compensation is to be deposited in the Treasury, and that the Minister shall also deposit in the Treasury a memorandum setting out the proceedings in connexion with which the money has been deposited. That is a new provision. Under clause 45 the Treasurer is empowered to invest the compensation deposited in the Treasury in the Government securities pf any State. One condition is that the investment is at the risk of the person entitled to the compensation, and another is the power to make a small charge for the supervision of the account. Honorable senators will observe that once the compensation has been awarded, it becomes in effect the property, of the claimant. If he does not take it up, the Minister may deposit the amount in the Treasury ; and if the Government choose to invest the compensation in Government securities for the benefit of the claimant, it should be at his risk - the compensation is waiting there, and the Government do not wish it to remain - and there should be a small charge for supervision.


Senator Fraser - Will the Commonwealth keep the security in which they invest the money?


Senator KEATING - The Commonwealth will invest the money, and hold the security until the claimant takes the compensation.


Senator Millen - What possible risk can there be in the Commonwealth, on behalf of the claimant, investing in Commonwealth security?


Senator KEATING - I do not know that there would be any risk; but at present there are no Commonwealth securities.


Senator Millen - The Minister does not mean to reflect on the States securities ?


Senator KEATING - Certainly not ; but it is a trouble and an annoyance to have to look after such accounts. If a number of people take advantage of the law providing that the money may be paid into the Treasury, and of the fact that the Minister may invest the money in State securities, and that, I think, is highly desirable, then the persons who will ultimately receive the interest ought to pay something for supervision. A claimant ought to be prepared to incur some risk, and pay a small chargefor a desirable investment, in which both principal and interest are looked after.


Senator Sir Josiah Symon - That only applies to a case where a claimant is entitled to interest.


Senator KEATING - Yes.


Senator Sir Josiah Symon - The Commonwealth say, "We will pay the interest, but as we have so much money, it is only fair we should have leave to invest."


Senator KEATING - Quite so.


Senator Sir Josiah Symon - Why. should the risk be taken by a person to whom the Commonwealth is liable?


Senator KEATING - The claimant is at liberty to take the money and invest it for himself.


Senator Trenwith - A claimant has no right to force a loan on the Commonwealth.


Senator KEATING - A claimant has no right to force money on the Commonwealth.


Senator Sir Josiah Symon - But the Commonwealth will have the claimants land. Does the Minister think that many will leave their money in the Treasury?


Senator KEATING - We are not liable to pay the claimant interest after the amount is deposited in the Treasury ; but, if the money is lying there, and he is not likely to take it up for two years or, possibly, twenty year's, is it not as well that it should be invested in the Government securities of the States?

SenatorSir Josiah Symon. - But why at the claimant's risk? The claimant is not entitled to interest, and the Commonwealth is under no obligation to invest. Why not avoid risk by not investing the money ?


Senator KEATING - This is the power for which the Treasurer asks, though he does not say he is going to exercise it. If the optional course of investing the money is taken, it is quite right that those who will reap the benefit should take the risk and pay a small charge. By clause 46 we, for the first time, provide for a certificate from the Attorney-General to the effect that the claimant has executed all the necessary conveyances, transfers, and other documents before being entitled to compensation. By clause 50, we enable a mortgagee to have his interest represented, and his amount of compensation determined in cases of compulsory acquisition,. There is no similar provision in the existing legislation. The clause enables the mortgagee to join with the mortgagor, or to make an independent claim ; or if the mortgagee is generous enough, or the circumstances warrant it, he is enabled to waive his rights altogether to any compensation. There are only two other important amendments of the law made by the Bill. One amendment is dealt with in clause 63, which is entirely new, and the other is dealt with in clause 66. The latter is a small clause, which, in some circumstances, might or might not be important. It simply empowers persons dealing with the Minister to serve notices on him by sending them through the post. The Minister already has power to deal in that way with persons who are affected by the compulsory acquisition of land ; and the clause gives a corresponding right to the other parties. Clause 63, which is more important, enables the Governor-General to authorize the grant of mining leases and licences, and provides as to the law which shall operate in connexion with the exercise of any rights so conferred. I shall give some concrete illustrations of the necessity for this clause. The Commonwealth, in various States, possesses, in and around mining districts, properties occupied for rifle ranges, postoffices, and so forth. In some instances, it has been found that the mining operations bring those engaged right up against what may be called the boundary line between Commonwealth and State; and the question has arisen, if those mining operations are continued, and extend over the Commonwealth boundary, what particular law is applicable. Applications have been made to the Commonwealth Government for the right to mine under rifle ranges in different parts of the Commonwealth; and, seeing that the Commonwealth has jurisdiction over its territory independently of any State authority, the question arises what law shall operate in relation to such mining. To get over that difficulty, provision is made in clause 63 that, subject to the regulations, the laws of the States in which the land is situated, relating to mining, shall, as far as applicable, apply to leases and licences granted under the clause.


Senator Millen - Is it proposed to start a Mines Department under the Commonwealth?


Senator KEATING - Certainly not; we propose to take full advantage of the laws relating to the several States Departments of Mines. It is simply provided that if a mining lease or licence be granted by the Governor-General to carry on mining on Commonwealth property, say, in Victoria, the mining laws of Victoria shall apply.


Senator Sir Josiah Symon - But preliminary to that you take away from the States, and hand over to the Common-' wealth, the mining rights under the surface. Supposing that in York Peninsula an area is devoted to a drill ground, then all the mining rights vested in any company pass to the Commonwealth, and the Governor-General has to grant them anew.


Senator KEATING - The Commonwealth will own the whole of the land, and all the mining rights, amongst other rights.


Senator Sir Josiah Symon - By the first paragraph of the clause all these rights are taken away from the States.


Senator KEATING - They are not taken away from the States.


Senator Sir Josiah Symon - Yes, because the lease must be granted by the Commonwealth.


Senator KEATING - But at present the State cannot grant a lease in respect of the land.


Senator Sir Josiah Symon - The State can do so for mining, because the Commonwealth only wants the surface.


Senator KEATING - When the Commonwealth acquires land, it does not simply acquire the surface right.


Senator Sir Josiah Symon - That may or may not be.


Senator KEATING - That is one of the questions which arose betweenthe States and the Commonwealth, and which is determined by section 6 of the Act.


Senator Sir Josiah Symon - It is a question, is it not, of what is acquired? If the Commonwealth simply acquires ah area for a drill ground, the existing mining rights will not pass without some express arrangement.


Senator KEATING - That may or may not be, but, in most of the cases, property comes to the Commonwealth direct from the Crown in the States. There was no reservation, as against the Commonwealth, when the properties were transferred; they came over bodily by operation of the Constitution.


Senator Sir Josiah Symon - Some of them.


Senator KEATING - The great majority of them, in connexion with which difficulty has arisen.


Senator Lt Col Gould - Other lands may be acquired by the Commonwealth in the future.


Senator KEATING - Quite so, and from a private individual, who has already acquired the land from the Crown in the State subject to a reservation. That reservation in those other cases might still be operative against the Commonwealth.


Senator Sir Josiah Symon - In some places there always is, or was, a reservation in regard to mining.


Senator KEATING - That is the case in Tasmania.


Senator Mulcahy - And it is most desirable that there should be the reservation in the other States.


Senator KEATING - That is so, and the clause to which I am referring clears up the whole question.


Senator Millen - Does it?


Senator KEATING - It does.


Senator Sir Josiah Symon - The States ought to be consulted.


Senator KEATING - I know some cases in which the States have declined to deal in any way in relation to mining on properties that have been transferred to the Commonwealth. I think honorable senators will find that this clause solves the difficulty ; and there is no intention on the part of the Commonwealth to establish a Mines Department. Let us take, for instance, the barracks reserves throughout the Commonwealth, which, at the time of Federation, were transferred from the States to the Commonwealth. These reserves, from the surface right down to the centre of the earth, so to speak, were transferred - there was no reservation as against the States as to a higher authority in relation to mining rights. These properties, exactly as they stood, were bodily transferred to the Commonwealth by the operation of the Constitution.


Senator Lt Col Gould .- Were they? They were not all occupied by the Crown for public purposes.


Senator KEATING - I am speaking of lands that were exclusively used in connexion with the transferred Departments.


Senator Lt Col Gould - The transfer of a drill ground does not mean the transfer of the minerals.


Senator KEATING - But I am pointing out that there are many properties in the Commonwealth formerly exclusively used by the States in connexion with the transferred Departments, and these were handed over.


Senator Lt Col gould - The surface rights.


Senator KEATING - More than the surface rights.


Senator Mulcahy - Does not the feesimple of a rifle range become the property of the Commonwealth?


Senator Sir Josiah Symon - That may or may not be ; there may be only the right to shoot over a strip.


Senator Lt Col Gould - In all grants the minerals are reserved.


Senator KEATING - In many instances, those properties had not been dedicated, but were held without any express proclamation. To solve the difficulty, it is proposed that the Governor-General may authorize the granting of licences or leases to mine in respect of such lands. I know one instance in which an application was made by a person for a quarrying licence in connexion with property that had come over to the Commonwealth under the Constitution. The Mines Department of the particular State declared that it had no jurisdiction; and the applicant then came to the Commonwealth Government, which was naturally very loth to grant, under any terms, a quarrying right. For some time it was considered what course should be followed - whether the applicant should be allowed to enter into a private arrangement with the Commonwealth to exercise a quarrying right, or whether the Commonwealth should notify that it would grant such a right to any successful tenderer. Eventually, the matter was hung up, it being concluded that nothing should be done until some uniform practice, sanctioned by Parliament, had been adopted. To that end, this clause has beer introduced; and it is a fair and reasonable proposal, to which I invite the consideration of honorable senators. I think I have finished outlining all the provisions in this Bill which affect the existing law. I may have departed to some extent from the traditional second-reading speech, but it has been with the object of bringing clearly to the minds of all honorable senators the important bearings of the new provisions which we invite them to pass. This Bill deals with a subject which in many respects is complicated and intricate, and rather than indicate in a general fashion what is the proposed alteration of the law, I thought it would be better for honorable senators if I dealt seriatim, and as they occur in the Bill, with the different amendments of the existing law which the Government are asking honorable senators to consider. I trust that, with the explanation I have given of those amendments, as complete an explanation as I could possibly give, honorable senators will be enabled to approach the consideration of the Bill with perhaps a little more advantageous attention than if they had had to study it through clause by clause with the existing legislation. As I said at the outset, it is a recast, so to speak, of our existing law, but a recast, as I anticipate honorable senators will agree, in a far better form for Parliament, the public, and all who will be directly or indirectly affected by the law. The new provisions, the reasons' for which I have sought to indicate as clearly as I could at this stage, have been decided upon only after four or five years' experience of the working of the existing law. While they will enable the Commonwealth Government to carry on its functions, and to acquire property which may be required for the discharge of those functions as expeditiously as possible, it will, I think, be found that there is in them no derogation from the rights of the individual. The individual will be amply protected by the provisions of this Bill, and will have insured to him the fullest measure of compensation for whatever sacrifices he may be called upon to make to the Commonwealth'. He will also be liberally compensated for any incidental damage that may be occasioned to him. In these circumstances, I have very much pleasure in submitting to the kindly and generous consideration of honorable senators the Bill the second reading of which I have moved.

Debate (on motion by Senator Sir Josiah Symon) adjourned.







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