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Thursday, 19 July 1906

Debate resumed from 18th July (vide page 1393), on motion by Senator Keating -

That the Bill be now read a second lime.

Senator Sir JOSIAHSYMON (South Australia) [4.15] - In moving the second reading of thi s Bill, the Honorary Minister, Senator Keating, said that it is very complicated and intricate. I do not think that that was an exaggeration in describing the nature of the Bill. It was certainly no exaggeration in that it sufficiently described a measure which requires in its preparation care and experience, and in its consideration at the hands of honorable senators, patience and judgment. I think we may all feel that it is a merit of this Parliament, as it is of most English Parliaments, that measures of this description - and, indeed, all measures of important public concern - are proceeded with with a great deal of care and patience, and that as a general rule very few are passed as the result of mere impulse. Very often, . where that does happen, as no doubt it sometimes does, the result is unsatisfactory, and we find undone in one session what was done in another We have in this particular Bill an example and a warning. It is barelv four years since a Bill for exactly the same purpose, so I understand, was placed on the statute-book as one of the machinery Bills required to be passed for the purpose of enabling the Commonwealth engine to work satisfactorily and promptly. If there are defects in that measure I dare say that some, if not all, are due to the fact that most of us treated it as largely a machinerv Bill, and relied largely upon the care which we supposed had been devoted' to its preparation by the Parliamentary Draftsman, and to the care and consideration, which we assumed had been given to the scheme embodied in it by the Government of the day. This particular Bill. Senator Keating says, is in substitution of that measure of 1901, on two grounds - one, that the drafting of the earlier measure was not so up-to-date that the ordinary reader couldeasily understand its provisions ; and, secondly, that it had been found that in operation it inflicted many hardships. I really have some difficulty in understanding why this Bill has been introduced. I am not complaining of its introduction. If it is necessary that a Bill passed even last session should be revised from top to bottom in this session, whilst that may not be exactly reasonable or a precedent that should be encouraged, it is right that it should be done in order that the statute-book may be purged of defects, inaccuracies, and inconvenient enactments inadvertently made. But the mere inartistic drafting of a Bill in one session would scarcely justify the introduction in the next session of a long measure of similar purport and enacting a similar scheme. If t'here were hardships inflicted under the original measure, they should be redressed, but Senator Keating did not refer us to any of the hardships that he might have had in mind as inflicted upon the citizens of the Commonwealth under the existing measure. There may be such, but the honorable and learned senator did notpoint them out in moving the second reading of this Bill. It may be that when we get into Committee some of them will be brought under our notice. It is, however, remarkable, that, so far as the Senate is concerned, no particular instances of hardship arising under the existing measure, and towards which any new provisions of this Bill are directed have been brought before us. It is therefore difficult to understand for what particular reason this Bill has been introduced. I have a sort of feeling that there is some purpose, which at the moment mav not be very apparent, in some of the provisions of this Bill, which is the moving reason for its introduction. So far as hardships are concerned, there are two things observable aboutthis Bill. In the first place, I am afraid I must say that the marginal notes exhibit a considerable degree of carelessness in their insertion. A large number of them do not accurately describe the provisions of the Bill from which they purport to be taken. I propose to mention a few, not in any spirit of mere criticism, but because, relying upon the information that we receive, we are in the habit of asking that marginal references shall be placed' in Bills in order to facilitate their considera- tion. It is extremely important that this should be done, but it ig of still greater importance that 'the marginal references when they are supplied shall be accurate. I particularly desire to direct the attention of Senator Keating and other honorable senators to a few of the marginal references in this Bill, in order that in future greater care may be taken to see that such notes are accurate and not misleading. I refer honorable senators first of all 10 clause 5 - the definition clause. The marginal note to that clause is "Of . 1, No. 13, 1901, s. 2." That is to say, " Compare section 2 of the Act of 1 90 1." That does not assume that every one of the definitions in this clause are the same as those in section 2 of the Act of 1:901. The greater number of these definitions are new. The definition of "owner" and of "land" are altogether new, and the definition of "land"' extends beyond and emphasizes, what honorable senators will see, when I come to refer to one or two of the other clauses, is at least a very important portion of this measure. Clause 6 is said to be identical with section 5 of the Act of .1901. That is misleading, because it is very greatly different from that section. Clause 8 is said to be identical with section 4 of the Act of 1901, but it is different.


Senator Keating - It is not said to be identical with it, but there is a reference to it.


Senator Sir JOSIAH SYMON - These clauses are said to be identical with the sections referred to. My honorable and learned friend will see that where they are not said to be identical, the marginal note used is " Cf " - compare. Clause 8 is said to be identical with sub-section 1 of section 4 of the Act of 1901.


Senator Keating - No: the word "ibid" is generally used where that is intended.


Senator Sir JOSIAH SYMON - No.


Senator Keating - Will the honorable and learned senator look at the marginal note to clause 7, which refers to section 48 of the existing Act. He will see that the note there is "lb. s. 48."


Senator Sir JOSIAH SYMON - I will refer my honorable and learned friend to clause 12, where the marginal note is "ibid." I mention the matter in order that these marginal references may be corrected. The honorable and learned' senator will see that where it is not indicated that the clauses are identical, the note used is "Cf." - that is, that we should .compare the two provisions. That is done where there is some variation between them, though, perhaps, not an important one.


Senator Keating - I think I explained very fully yesterday that many of' these clauses are redrafts.


Senator Sir JOSIAH SYMON - That is so, but I am dealing at present with what is certainly evidence df carelessness in the preparation of these marginal notes. Yesterday, Senator Keating properly, and I think, instructively, directed attention to t large number of variations to be found in clauses of this Bill, which purport to be copied from the existing Act. I may say that that is the reason why yesterday, although upon points of principle in the Bill I had intended following my honorable and learned friend at once, I thought it, was due to him, in consequence of the care he had taken in referring to certain alterations in the existing Act thai1, before speaking on the second reading, I should take an opportunity of comparing them myself, which I did. The marginal notes to clauses .11 and 32 are misleading, since they show that these clauses are identical with the sections of the existing Act referred to. Clause j 6, which contains a highly important provision, is not merely section 6 of tho existing Act, as the. note would indicate. In the marginal note to sub-clause 2 of clause 16 we have the very expression Senator Keating has referred to - "Ib s. 6," and yet this sub-clause differs from the section of the existing Act referred to, and not only so, but as Senator Keating explained yesterday, it omits the provision in the section requiring the publication of the notification in a 1 newspaper as well as in the Gazette. Sub-clause 2 of clause 17 contains a highly important departure from the existing Act, and yet is noted " lb. s. 8." Clause 18 is noted " lb. s. 1:1." and yet it is different from that section. The marginal note to clause 1.9 omits the expression "Ibid," and uses the "Cf"- "compare." That is a fair suggestion that a comparison should be made, and that this clause should not be accepted as absolutely identical with the section of the existing Act referred to. Again, the marginal note to clause 20 is " Ib. s. 12," though the clause verv seriously differs from the section referred to, because it omits the provisionunder which the owners of land shall be entitled to compensation for any damage which they may have suffered by reason of the intervention or of the exercise of the powers of the Minister consequent thereupon. So on, with the marginal notes to other clauses. I refer honorable senators, for instance, to clause 22.


Senator Keating - These provisions are found later.


Senator Sir JOSIAH SYMON - There is a provision, but whether it goes to the same extent or not is a different matter. What I am pointing out to my honorable and learned friend is that it really would be better that we should not have these marginal references at all than that they should lead us improperly to assume that certain clauses are identical with the sections of an existing Act, when, in fact, they involve very serious departures from them. There may be other clauses which make up that part of the enactment, or there may not. They may have the same effect or a different effect. I merely mention these as instances - I daresay there are others which I have not had an opportunity of seeing-*- which show that, at any rate, greater care might well be taken in regard to Bills affecting important and complicated matters, and which are to supersede Acts of Parliament. We should be able to rely implicitly upon marginal references as indicating whether or not the clauses are identical with existing provisions. My honorable friend has not pointed out any of the existing hardships which are sought to be remedied. There appear to me to be instances where, if the existing law bears hardly upon individual owners, the Bill bears even more hardly, in so far as these specific enactments in regard to compensation and damage are concerned. There are omissions which may be sought to be remedied by other clauses, but which are not so clearly indicated for the guidance of those who are not skilled in examining and analyzing an Act of Parliament. For instance, clause 20 omits the specific compensation for damage done which is provided by the existing Act. Later on in the Bill there is a general provision which mav or may not cover that matter. It is open to consideration whether it was not better and more intelligible to the individuals affected that it should be set out in the same section which enabled Parliament to declare void the notification of the taking of the land, that compensation would be payable if what was done under the notification produced injury to the individual. In clause 2?, again, it is expressly pro vided, in connexion with the making of surveys, that any damage occasioned thereby should be made good to the individual owner of the land. Clause 16 omits the notification in a newspaper of the taking of land by the Commonwealth, and limits the notification to the Gazette. As the Minister mentioned yesterday, this provision was the" subject of discussion when the Bill of 1901 was before the Senate, and it was decided here that, in fairness to the individual owner, it was desirable that the notification should be inserted in the ordinary newspaper, where he was more likely to find it, rather than be confined to the mysterious pages of the Gazette.


Senator Trenwith - Would' he not get official information?


Senator Keating - On Senator Symon's suggestion the Senate decided that the notification should be directed personally to the owner, in addition to any publication.


Senator Sir JOSIAH SYMON - Yes, in addition.


Senator Keating - But the Bill, as introduced here, contained a provision for notification in the local newspaper.


Senator Sir JOSIAH SYMON - If it did, it was distinctly considered that it was desirable that the amplest possible publicity should be given.


Senator Trenwith - The land-owner ought to know.


Senator Sir JOSIAH SYMON - Certainly, because there is the possibility of miscarriages. It may seem a small matter, but there is no reason why the existing provision for publication in a newspaper as well as the Gazette should be omitted from this Bill. It imposes a little additional trouble upon the clerk who has to see to the giving of the notices, and to their publication, but that is all it does.


Senator McGregor - It puts a little more expense upon the community.


Senator Sir JOSIAH SYMON - Very little. The provisions of this Bill are more drastic than the provisions in the Lands Clauses Consolidation Act, and in the corresponding Act of .South Australia, and it is desirable that the notification to the man whose land is taken away should have every possible publicity.


Senator Trenwith - What is the advantage of the publicity if we are assured^ that hf/ has received information? There is no other person interested, and so long as he knows, what does it matter about any one ds ?


Senator Sir JOSIAH SYMON - Because it is the publication of the notice which takes the land from the owner.


Senator McGregor - Why should the notification be published in a newspaper when he knows all about it, and it is already published in the Gazette?


Senator Sir JOSIAH SYMON - The owner might not know of it. The object of publishing in the Gazette is to give the notification. Otherwise it might be said that the signing of his name by the GovernorGeneral should be sufficient to take away land from a man without any reference to him, otherwise than by the particular notice for which provision is made.


Senator Mulcahy - There might be a dispute as to his title, too.


Senator Sir JOSIAH SYMON - Of course there might. All I am pointing out now is that we have not had pointed out the hardships which have occurred under the existing Act, and that here is an instance of omitting a provision in favour of the land-owner. So that, instead of there being hardships to cure, apparently there are hardships being imposed ; that is, hardships as far as they go. Then, also, in clause 24, there appears to me to be a very serious disadvantage to the owner. This is the provision which empowers the Minister to take clay, earth, stone, and so on, from certain lands. It is declared in the existing Act that that power is not to be exercised in respect of a quarry or place belonging to an individual proprietor, which is " commonly in work." That provision, is omitted from this Bill, and the power is limited - that is to say, it may be exercised by the Commonwealth against the will of the owner if at the moment that it is exercised it does not happen to be in actual work.


Senator Keating - Not at the moment.


Senator Sir JOSIAH SYMON - My honorable friend will see that there is no limitation. The words of the. clause are " in actual work."


Senator Keating - The words in the present Act are " in work at the commencement of this Act." This provision gives the man an extended protection.


Senator Sir JOSIAH SYMON - Perhaps I had better read the clause -

1.   The Minister and all persons authorized by him may, in connexion with the carrying out of any public purpose, exercise on or in relation to any land occupied by him under this part of this Act all or any of the- following powers: - (a) To take clay, stone, gravel.

There is a considerable alteration there from the wording of the provision in the existing Act.

2.   The power to take stone, clay, or earth shall not be exercised in respect of any stone o\ slate quarry or brick field in actual work.

Of course, that means at the moment when the power has got to be exercised.


Senator Keating - The present provision is that material shall not be taken from a quarry which is in work " at the commencement of the Act."


Senator Sit JOSIAH SYMON - The provision in section 53 of the present Act is as follows: -

Provided that no stone or slate quarry, brickfield, or other like place which, at the commencement of this Act, is commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the same, shall be taken or used by the Minister for any purposes lastly hereinbefore mentioned.


Senator Trenwith - That certainly wants to be altered.


Senator Sir JOSIAH SYMON - I think it would not be unreasonable to use these words - " which at the time of the exercise of such power, or at the time of the taking of the land." If the clause were left in its present form, a natural .interpretation of the words would be "in actual work at the moment of the exercise of the power," and if the owner had stopped operations the day before, or the week before, simply because there happened to be no demand for the particular material to be supplied from the quarry, this power could be exercised in spite of the will of the owner, who would be deprived of the opportunity of working the material with his own men, and selling it to the Commonwealth, if he chose.


Senator Keating - That would be a verv narrow interpretation.


Senator Sir JOSIAH SYMON - I think not.


Senator McGregor - Could we not insert an interpretation of " actual work"?


Senator Sir JOSIAH SYMON - I hope we shall have an opportunity of hearing from the Minister what particular hardship to individuals is cured by the Bill. .


Senator Trenwith - There are some hardships to the Commonwealth which are cured.


Senator Keating - Those are the hard' ships to which I was referring.


Senator Sir JOSIAH SYMON - That is certainly a new development. I thought that the Minister was referring to hardships to the individual. He says that he was referring to hardships to the Commonwealth.


Senator Keating - To some.


Senator Sir JOSIAH SYMON - I do not know what the hardships are, because none are enumerated.


Senator Trenwith - There is the matter of the investment of money at the risk of the claimant.


Senator Sir JOSIAH SYMON - I do not quite know that it is a hardship for the Commonwealth to be possessed of the money of some one else upon which it is not compelled to pay interest.


Senator Trenwith - But the Commonwealth cannot use it, and has to keep an account of it.


Senator Sir JOSIAH SYMON - The Commonwealth can use it. The unfortunate claimant - unfortunate in the sense that his property has been taken from him, and that he is given nothing for the sentimental value of it, or for what we call the " amenities " - has been awarded an assessment. The money is deposited in the Treasury, but he 'gets no interest upon it.


Senator Trenwith - The Commonwealth cannot use money that is payable at call without notice.


Senator Sir JOSIAH SYMON - It may be inconvenient, but surely my honorable friend, who is a master of the English language, would scarcely call that a hardship?


Senator Trenwith - Not after the honorable senator has expressed it so nicely !


Senator Sir JOSIAH SYMON - the money is there, and it is entirely at the will of the Commonwealth whether it shall be invested or not. If it is invested, it is at the risk of the claimant. That is the only alteration made in the existing Act. That, in itself, would not be a reason for the introduction of this Bill. I wish honorable senators to try to find the reason why the Bill has been brought in. I do not think that they can find it in the making of that alteration, because, although the existing' Act does not contain the words " at the risk of the individual proprietor," it leaves the matter open as to whether the investment shall be made entirely at the determination and will of the Minister. I do not think that, so far as draftsmanship is concerned, this Bill is any improvement whatever upon the existing Act. It contains alterations which certainly do not improve our legislation. I will give one or two reasons for thinking so. This is not the kind of Bill which ought to be dumped down before a drafting clerk, so that he may work his own sweet will upon it. It contains principles of a very far-reaching character, which I strongly feel ought to be embodied in a measure which is the result of the most careful consideration, not only by the law officers of the Crown, but by the Government as a whole. The principles of the Bill involve a grave departure from what we have been accustomed to in measures of this description. I will mention one more instance. Senator Trenwith has led me to mention one, namely, the investment at the risk of the claimant. That imposes a liability upon the owner to which he was not subjected before. That liability may be rightly or wrongly imposed. I merely mention the fact. Clause 25 says that where there is temporary occupation of land under a power conferred by the Act - the Commonwealth shall pay to the owner or occupier of the land, as the case requires, a rent for the occupation of the land.

That is not a very adequate provision. It is new, and it departs from existing provisions of this description. The existing provisions require that the occupier shall be paid the value of any crop or dressing that may then be on the land. That is omitted in the present Bill, and it is simply provided that the Commonwealth shall pay to the owner or occupier a rent for the occupation of the land. There is another provision to which I will draw attention - that

Nothing in this section shall take away the right of any person to compensation for damage sustained by reason of the exercise of any power under this part of this Aci.

How far that is a sufficient provision for the protection of the individual owner is very obscure. I hope that in Committee we may have it elucidated. Let us look at the substance of the Bill. I quite agree, and we must all agree, with what the Minister said, that a measure of this description is essential for the good government of every State. The rights of the individual proprietor must, when necessary, be subordinated to the interests of the community as a whole. It is in order to give effect to that principle that we have Acts of this description existing, I think, in every State of Australia, and in every country where there is government upon the "British model.

Section 51 of the Constitution provides in paragraph 31 for the making of laws with respect to the acquisition of property " on just terms ' ' - following in that respect the American Constitution - from any State or person, for any purpose in respect of which the Parliament has power to make laws.

The title of this Bill describes it as a Bill- relating to the acquisition by the Commonwealth of land required for public purposes, and for dealing with land so acquired, and for other purposes connected therewith.

Then there is a short title to which I take very grave exception. It is called "The Eminent Domain Act 1906." .The expression " Eminent Domain" is one which is not known to English municipal law. It is a term which is known to international public law as expressing in theoretical terms the sovereignty of an independent sovereign over his own territory in which no other sovereign has jurisdiction. The term has been applied in the United1 States to the theoretical source of the power of the Government of that country to take land for public purposes within its particular territory. The origin of its use in the United States was due to die fact that in that country there is no sovereign. The phrase was adopted to express the power of the United States, not merely to take land, but to take every kind of property, from the individual. The expression in this Bill is misleading because it is altogether inconsistent with the long title. This is not an Eminent Domain Bill, because it is confined to a certain portion of the subject-matter of that which is affected by the power that theoretically has its source in the United States in the doctrine of " Eminent Domain." In the next place, the use of the term is complicated here by the mixing 110 of State lands and the lands of individual owners - a condition of things that does not exist, as honorable senators are aware, in the United States. The difference between territorial ownership and jurisdiction in the United States of America and in the Commonwealth of Australia, is, that here the public lands are owned by the States, whereas in America it is otherwise. Here, by virtue of our Constitution, Ave have a new departure which does not exist in America. It is extreme v doubtful how far the term applies in Australia, and whether it does' apply at all to lands which are owned by the States. As I have said, there is no reason why Ave should use the term " Eminent Domain," which even. to the initiated, who have subjected this matter to study, is new tangled; whilst by the uninitiated, to whom the| short title of a Bill is of importance - the object of a short title being to guide the' eye and1 the understanding of the casual reader - it would certainly not toe understood. It does not express even as applied in its technical meaning what this Bill is intended to carry out. There is a long title which expresses the object of the Bill, and I suggest that we should not introduce these Yankee notions into our legislation.


Senator McGregor - I thought the honorable senator objected' to too much. detail.


Senator Sir JOSIAH SYMON - I do not object to detail. I am A'ery desirous for details, but the details I Avant-


Senator McGregor - The honorable senator Avas objecting yesterday


Senator Sir' JOSIAH SYMON - I I was not. I do not object to details; the honorable senator is thinking in conundrums. The long title of this Bill is not exhaustive of what Eminent Domain is in America ; and I do not see why Ave should not simplify the title, and' call this the " Lands Acquisition Act of 1900." This Bill simply deals Avith the acquisition of land, and not with the doctrine of Eminent Domain. It might be desirable to import that doctrine, but I do not think it necessary, because the power is already inherent in the Crown







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