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Thursday, 19 July 1906


Senator TRENWITH - If Ave have the Bill

A\'e can take material off the land.


Senator Sir JOSIAH SYMON - As the honorable senator knows, earth is part of the land, but when it is severed, it ceases to be land. Under the law of Eminent Domain, the Government may take a man's personal property - everything he possesses - if the exigencies of the State demand such a step.


Senator McGregor - Why should not the Commonwealth have that power ? Senator Sir JOSIAH SYMON.- I have no objection to the Commonwealth having that power. .But here Ave have a title which imports, even from, the point of view of the jurist in America, that Ave are exhaustively dealing Avith the subject of Eminent Domain, whereas, in reality, Ave are dealing only Avith the acquisition of land. The title is misleading, even to the technical lawyer, and, therefore, must be much more misleadin'g to the uninitiated. I shall. favour an amendment of the kind I have suggested when we reach the Committee stage.


Senator McGregor - When land is taken are not ail improvements and everything on the land also taken ?


Senator Sir JOSIAH SYMON - They are part of the land ; whatever is affixed to the freehold is part of the land. But if there were 1,000 bushels of wheat in a bam, this Bill would not enable the Government to take; that wheat. Under the American law of Eminent Domain, however, the Government, in case of public necessity, could take that wheat as well as the land. The law of Eminent Domain is altogether inapplicable in Australia, where the inherent right lies in the Crown ; and the reason it was imported into the United States was, in the absence of the sovereign, to attribute the power to the sovereign people- I should also add, for the information of honorable senators, that even in America the law of Eminent Domain has only become a subject of treatises, and so forth, within the last twenty or twenty-five years. It is not an expression known in our law, and it would be better for us not to use outside terms unless for very excellent reasons. There are three aspects of the Bill which, it seems to me, require the consideration of honorable senators. First, the Bill combines the power to take land with the machinery necessary to the taking. The present Act was similarly drawn ; and it is worth discussing whether it is- desirable to continue the system. Secondly, the Bill provides for the compulsory taking of Crown lands from the States ; and. thirdly, it provides for the taking of land from private individuals. It is a pity, in my opinion, that we have not followed the example of England where there is the Land Clauses Consolidation (Act; - one of the (best [drawn Acts ever placed on any statute-book. It is confined entirely to the machinery for acquiring land. In England the power to take lands is, of course, conferred and regulated 'by special Acts; and the great advantage of that method is that Parliament never loses control of the talking of land, or of the public purposes for which it is to be taken. Under this Bill, the power of taking land is sought to be conferred, so that unless Parliament interferes after the notification is published in the Gazette, or, if Parliament is not sitting, within fourteen days after it meets, there is no direct control by Parliament of the public purpose for which the land is to be acquired. I submit for serious consider.ation the fact that under the Bill the power of the Commonwealth to take land may be construed to confer that power on any delegated authority. In England, the power all emanates from the sovereign, as the theoretical source, and is conferred by special Acts on companies, and public -bodies ; and the same power might be conferred under this Bil] in cases where the Commonwealth Parliament deals with company law. It may be unnecessary to confer the power by any special Act, if under this Bill, when it becomes law, the authority given to the Commonwealth is construed to include an authority delegated to certain persons or bodies. It would have been very desirable if the Bill were confined entirely to machinery and made a Commonwealth Lands, Clauses Consolidation Act. The power to take land for public purposes, such as railways and so forth, would then be conferred by special Act; but the moment the special Act was passed the machinery Act would come into play. It would be much better for the Common- wealth, and the law would be much more easily understood if that plan were adopted. It would be a pity if the Bill, with all the machinery embodied, were to be construed as not applicable to delegated bodies, but confined merely to the taking of land by the Commonwealth for Commonwealth purposes. Of course, the Bill might be recast, and, in my opinion, time would be well spent with that object, so that the power to take land might be eliminated, to be specifically conferred, in every instance, by the assent of the Legislature.


Senator McGregor - Can the honorable senator suggest any companies or bodies beyond municipalities which could or would require public land in Australia?


Senator Sir JOSIAH SYMON - There might conceivably be other companies or bodies, but, of course, fewer conceivable instances in the case of the Commonwealth than in the case of a State.


Senator McGregor - Railways and water conservation are in the hands ofthe States.


Senator Sir JOSIAH SYMON -No all. In connexion with the River Mur- ray, for instance, an example may arise at any moment. The Commonwealth has control of the navigation of the Murray.


Senator Mulcahy - The Commonwealth has only a limited control of the river.


Senator Sir JOSIAH SYMON - There is full control for all purposes of navigation.


Senator Trenwith - Except that the Commonwealth must allow a reasonable quantity of the water for irrigation.


Senator Sir JOSIAH SYMON - Senator Trenwithis substantially quoting the Constitution on the point. I do not anticipate it would, but the power v might be conferred and exercised in the way suggested by Senator McGregor; though, of course, all this is more or less speculative. I am not alluding to matters such as those dealt with under the Postal Act, the Defence Act, and so forth, in connexion with which there is, and ought to be, some general provision for the taking of lands, without the necessity for a special Act in each case. I am making these suggestions'; with |no intent whatever to embarrass the Government, but merely, to show the desirability for a simplification of the measure - for making it merely a machinery Bill, leaving the taking of land to be dealt with in general Acts relating to defence or postal matters, or in special Acts relating to special purposes. _ The second aspect to which I draw attention is far more important. We in Australia are in a very different position from the people of the United States, or the people in England. The States which constitute the Commonwealth retain all their powers not expressly delegated to the Commonwealth, and to that extent are sovereign States with the entire ownership of the public lands of Australia. The Bill is a new departure not covered by any precedent or practice elsewhere, and, therefore, it behoves us, in order to keep in harmony with the States, to walk very warily indeed. Whatever justification there may be for taking drastic powers as to private land for public purposes - and private lands are protected by the Constitution, inasmuch as thev must be taken on just terms - it seems to me to be unwise and a fatal mis' take to apply to the States the same compulsory and drastic method that is applied to the owners of private land. I shall show honorable senators how very serious this is. It strikes me that it is due to the States that provision should at least be made for the taking of Crown lands by a separate Bill. It would be only fair that they should be, I will not say consulted, but apprised of what the Commonwealth contemplates doing.


Senator Trenwith - Clearly we must take the power to acquire for public purposes the lands of either States or individuals. It is difficult to suppose a State refusing to give us land; but if we required land for defence purposes, and such an attitude were adopted by a State towards the Commonwealth, we would have to take the necessary power to acquire the land.


Senator Sir JOSIAH SYMON - Yes ; but I propose to show the honorable senator the way in which it is provided that we shall take it under this Bill. With every word that Senator Trenwith has said I thoroughly agree. In every other country enactments of this description deal only with the lands of private individuals. Australia is the first country to establish a precedent and rule of procedure in this matter, and it has occurred to me that, to prevent irritation and friction with the States, it would be well that they should be communicated with as to the best or smoothest methods by' which the compulsory taking of land, if it should become inevitable, shall take place. 'Being an entirely separate matter, it would be a good thing if it were dealt with in a separate Bill. There is no reason for mixing it up with this. What I plead for, as a State representative, is that, where the Crown lands of a State are required, the State should be, I will say, consulted.


Senator Trenwith - That would be dangerous.


Senator Sir JOSIAH SYMON - No, I think not. We shall have the right, but I speak merely as to the method. Whether the States are consulted or not, we should, at any rate, carry out the transaction in some more pleasant way than by merely putting a notice in our Gazette, and giving notice to the States that we are going to take a certain portion of their land.


Senator Walker - Is any limit put upon the area which may be taken ?


Senator Sir JOSIAH SYMON - I shall come to that presently.


Senator Trenwith - The clause would never be applied until negotiations had been resorted to.


Senator Sir JOSIAH SYMON - My honorable friend must see what a dangerous thing it is to put on the statute-book a provision which would, in its operation, be equivalent to suspending a drawn sword over the head of some person with whom we were going to negotiate.


Senator Mulcahy - But we must do that; we must have the necessary power.


Senator Trenwith - We should certainly do it as nicely as possible.


Senator Sir JOSIAH SYMON - Exactly ; and I wish to show my honorable friend the way in which it is proposed to be done by this Bill. The. situation is unique. It is the Crown, represented by the Commonwealth, compulsorily taking land from the Crown, represented by the State. That is an anomalous position.


Senator Trenwith - It is due to the peculiar character of our Constitution. We form a sovereign Federation composed of sovereign States.


Senator Sir JOSIAH SYMON - Of course ; and, naturally, there must be the necessary power in the Commonwealth.


Senator McGregor - Either the States or the Commonwealth must be subordinate.


Senator Sir JOSIAH SYMON - Of course, the public interests of the Commonwealth must be provided for effectively, but I am pointing out that there are different ways of doing it. I wish, from my place here, to make the States understand, and my own State in particular, the kind of measure which is being put upon the statute-book, under which, by means merely of a notification: in the Commonwealth Gazette, and a notice to the States that it is to be done, the Commonwealth Government can take land without consultation with a State, and irrespective of what the authorities of that State may or may not desire. Let honorable senators look at what it will involve. I ask their attention to clause 6. Of course, it may all be very proper with regard to individuals; but surely some courtesy must be shown to the sovereign States who own the lands, and have the sole power of dealing with their lands, except in so far as it may be necessary that part of them shall be taken for the public purposes of the Commonwealth. I do not think that the States are likely to approve of clause 6, which provides that -

The Governor of ,i Slate, acting with the advice of the Executive Council thereof, may (byforce of this Act, and notwithstanding anything to the contrary in the law of any State), sell or lease to the Commonwealth any Crown land of the State which is required for any public purpose.

The provision in the existing Act merely enables the Governor of a State to execute the grant, and that is all that is necessary. This is a new provision introduced into this Bill, which practically enables the Executive of a State to override any existing law of the State, and makes that authority responsible to the Commonwealth, instead of to its own Parliament.


Senator Mulcahy - Only with regard to certain properties required by the Commonwealth.


Senator Sir JOSIAH SYMON - But my honorable friend must see that, while we should make provision for the acquisition of land that is required for the public purposes of the Commonwealth, we have no right to legislate in such a way as to say that the Governor and Executive Council of a State may do certain things, notwithstanding anything to the contrary in any law ' of the State. That takes away the responsibility of the Executive of the State to their own Parliament and laws.


Senator Trenwith - Is not every Executive responsible to its Parliament for every Executive act?


Senator Sir JOSIAH SYMON - But the Executive of a State, under this provision, would not be responsible to its Parliament. No one denies that the Commonwealth can compulsorily acquire land from a State.


Senator Mulcahy - Does not this provision remove any doubt which might arise as to the power of a State Executive to transfer land to the Commonwealth ?


Senator Sir JOSIAH SYMON - No; because there can be no doubt that the Commonwealth can acquire the land. It becomes vested in ft upon the publication of the notice.


Senator Keating - But this is in connexion with negotiations.


Senator Sir JOSIAH SYMON - Exactly; and if it is in connexion with negotiations, and an agreement, I say that the Government and the Executive Council of a State have no right to enter into an agreement to part with land to the Commonwealth without the approval of their Parliament.


Senator McGregor - They would not do it.


Senator Millen - This is to take away the necessity for that approval.


Senator Mulcahy - It seems to me rather to do away with the necessity for having the approval of a State law which might possibly not be in accord with the proposal made.


Senator Millen - If a State Parliament, by passing an Act, expressed its disapproval of the acquisition of certain land by the Commonwealth, clause 6 would enable the Government and the Executive Council of that State to act in defiance of that Parliament.


Senator McGregor - And then that Parliament would put the Executive out of power very quickly.


Senator Millen - And the Commonwealth would put them into gaol if they did.


Senator Keating - No ; we should have the compulsory power of acquisition


Senator Sir JOSIAH SYMON - What Senator Keating has said shows that this point has not been considered. This is in the nature of an agreement; and the Bill provides a power to enable the Executive of a State, bv force of this measure, and in defiance of any existing State Act, or State Parliament, it may be, to enter into an agreement and convey lands to the Commonwealth. I say that no Executive has the right to do that without the authority df its Parliament. It may be that the Commonwealth, if there were any trouble, should exercise these compulsory powers, but this is intended to have effect, as the Minister says, in cases of mutual agreement, and clause 6 is a declaration that by a Commonwealth Act a State Executive may give the go-by to its State Parliament.


Senator McGregor - They would not do so unless they knew that their Parliament would approve.


Senator Sir JOSIAH SYMON - But I am pointing out that this provision is wholly unnecessary. Why should the Commonwealth Parliament empower the Executive of a State to enter into an agreement to convey State lands in defiance of a State Act of Parliament or of the State Parliament itself? What right have we to do that?


Senator Millen - We could not # force them to come to an agreement, anyhow


Senator Sir JOSIAH SYMON - Eit Either the provision is altogether useless, or it is merely a rock of offence to the States and the States Parliaments.


Senator Millen - Would the honorable and learned senator mind reading the corresponding section of the existing Act?


Senator Sir JOSIAH SYMON - Certainly ; section 5 of the existing Act is the corresponding section, and it is sensible and right. It provides that -

In the case of any Crown lands of any State purchased under this Act, the Governor of the State may grant such land, in the name of the King, to the Commonwealth.

That is to say, he may execute the conveyance. That is a perfectly proper provision, but why has it been expanded in the way it has been in this Bill? I propose to ask the Minister a question, and perhaps the honorable and learned senator will tell me now whether this Bill or any of the provisions contained in it is intended to deal with the Federal Capital Site.


Senator Keating - No; nob so far as I know.


Senator Sir JOSIAH SYMON - I am very glad to have that assurance.


Senator Millen - -The Minister says "Not so far as I know."


Senator Keating - I think I am able to give honorable senators an absolute assurance to that effect.


Senator Millen - It would be very comforting if the honorable and learned senator could.


Senator Keating - Honorable senators will perhaps remember that when the existing Act was introduced it was stated that it would not be used for such a purpose, and that a special Act would be required for the acquisition of the necessary lands for the Federal Capital "Site.


Senator Dobson - Would not this Bill cover the acquisition of the lands necessary for the Federal Capital Site?


Senator Keating - Probably it would.


Senator Sir JOSIAH SYMON - I am. sure the Minister will forgive me for being a little suspicious on the point. If there is one thing more than another in connexion with which the power to acquire should be dealt with by a special Act it is certainly the acquisition of the Federal Capital Site. If we are to remain an harmonious Commonwealth, it would never do to seek, insidiously, by some expressions introduced into a B il,1 such as this, the power to take that land bv riding roughshod over New South Wales. I have no sympathy with many things which have been done in connexion with this matter, but it would be intolerable to most of us that anything of that kind should be done. It is for this reason that I put the question to the Minister, and I am glad to hear that he will be able to give the Senate an assurance upon the point.


Senator Keating - When I say " so far as I know," it is because it is only within the last two minutes, when Senator Dobson mentioned the matter to me, that I have heard such a thing suggested.


Senator Sir JOSIAH SYMON - I am merely repeating what was talked about out of doors when I say that it was stated that the present Attorney-General, in reference to this matter, said last year that he would have an easy way of overcoming any difficulty on the score of acquiring the land. I certainly entertained a. fear lest, in the expanded phraseology of this Bill, it might be intended to cover anything of that kind. I hope we shall have a positive assurance to the contrary from the Government. In any case, the matter could easily be put beyond doubt by the insertion of two or three words in the Bill. That was 'one of the first clauses which attracted my attention in that regard, because it says, " Notwithstanding anything to the contrary in the law of any State." In Part II., there are only two provisions to .which I wish to call attention. Clause 16 provides what does not appear to me to be a very nice method of compulsorily taking lands from a State. It says -

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

It will be borne in mind by honorable senators that the word "owner" includes a State-

2.   The Governor-General may thereupon, by notification published in the Gazette, declare that the land has been acquired under this Act for the public purpose therein expressed.

It will be seen first of all that even the Parliament has no control over that public purpose. It is determined, in the first instance by the Governor-General, that is to say, the Executive. He determines that the notification shall be published, and then he determines that the land by that notification has been acquired under this Act for the public purpose therein mentioned. Do honorable senators think that the States would like so summary and drastic a method of taking away their public lands., to be brought into operation' If is true that under sub-clause 3, the notification has to be laid before both Houses of the Parliament - within fourteen days after its publication in the Gazette, if the Parliament is then sitting, and if not, then with fourteen days after the next ' meeting of the Parliament.

We all know how unsatisfactory it is to have that method of obtaining parliamentary control. It brings about that state of things in which everybody's business is nobody's business. In important matters of this kind, there is nothing so desirable as a direct application to Parliament for its sanction. I think that before the Crown lands of a State are taken for any public purpose, the direct sanction of the Parliament should first be obtained.


Senator Trenwith - See how difficult if would be if we wanted the land hurriedly for defence purposes.


Senator Sir JOSIAH SYMON - The Commonwealth would not want the land so* hurriedly as the honorable senator suggests.


Senator Trenwith - That just occurred' to me.


Senator Sir JOSIAH SYMON - How could we ? " For defence purposes " means,, an area for drill or barracks, or a fort.


Senator Playford - Or for a camp.


Senator Sir JOSIAH SYMON - A camp would not be permanent; it is not likely that the Commonwealth would require abig area for that purpose. I merely ask each honorable senator whether he thinks that his State would like this particular method to be applied. In America thereis a proceeding that takes place, and' certainly it might be applied to State lands.. Whether it ought to be applied to individuals or not, I do not know. The proceeding is that an application is made uponpetition to have what is called an order of condemnation, that is an order declaring that the land is wanted for a public purpose, and that it ought to be withdrawn-' for that purpose, and then there is an opportunity for the State to be heard uponapplication before a Court, showing that that area was subject already ' to public interests or public requirements, and that there was other land' adjoining, or somewhere else convenient which . might be adapted to the requirements of the Federation. It is only proper that there should be an opportunity afforded to two sovereign bodies - each sovereign within its own sphere - to discuss and, settle a matter of that kind. If they could' not settle it between themselves, then some body, as in America, might be called upon to intervene, and judicially determine the point at issue. I do not pretend to have thought out carefully the proper course which might be adopted. But whatever method is adopted, certainly it is not very courteous to the States that this method should be embodied in our legislation, intimating to them that at any moment the Governor-General can notify in the Gazette that a certain area of land, without limitation, may be taken for some particular public purpose, that by means of that notification it will be taken, and that the State will be merely in the position of a claimant for compensation. If we refer to clause 17, what is the result ?

1.   Upon the publication of the notification in theGazette, the land described therein shall, by force of this Act -

(a)   be vested in the Commonwealth.

The State cannot say aye or no, because no opportunity is afforded.


Senator Trenwith - The State certainly will have an opportunity.


Senator Sir JOSIAH SYMON - There may or may not be negotiation.


Senator Trenwith - Oh, there will be.


Senator Sir JOSIAH SYMON - We are framing an Act of Parliament, and I ask my honorable friend whether it is desirble or prudent to enact a provision of that character in regard to the Crown land of a State without endeavouring to mitigate it, or, to use his own expression!, make it nicer than it appears to be. But, taking the next sub-clause, what is to happen? -

2.   Where the land described in the notification is Crown land of a State, or is by virtue of any law of a State vested in any person on behalf of the Crown or for any public purpose, the notification shall also have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.


Senator Trenwith - That follows as a matter of course.


Senator Sir JOSIAH SYMON - In Adelaide we have some park lands dedicated to the public use. Is the Commonwealth to have the right compulsorily to take a portion of the park lands and to cancel the dedication?


Senator Trenwith - I should say so.


Senator Sir JOSIAH SYMON - Solong as I represent South Australia I shall resist any act of the kind. The power ought not to be taken in this shape - that upon the publication of the notification in the

Gazette,if a hasty Minister on 'one side and a hasty Minister on the other were to fall out in a negotiation, the Commonwealth Minister could ride the high horse, and say, "I am going to take that land," when an area of our park lands, with the dedi-. cation of them, would be swept away.


Senator Trenwith - The honorable senator is supposing a highly improbable contingency, but it is a right which should be exercised if the public interest so required.


Senator Sir JOSIAH SYMON - The people of Adelaide are so sensitive on this subject that they would resent the appearance in a Commonwealth Act of a power which would enable that to be done.


Senator Trenwith - It must be there.


Senator Millen - Can; Senator Trenwith suggest any objection to the course which Senator Symon is advocating, and which would lead to the same point? In other words, is there any objection to doing the thing in a nicer way?


Senator Trenwith - No. I agree with Senator Symon that the Commonwealth must have this power, but it must be exercised as agreeably as possible.


Senator Sir JOSIAH SYMON - Certainly. If I were a State Minister, I should resent most strongly and constantly a Commonwealth Act being passed in this particular shape, so that, without a hearing, if they chose, the Commonwealth could take State lands and sweep into oblivion dedications to which they had been subject. But that is not all.


Senator Playford - We might want land upon which to erect a fort.


Senator Trenwith - We might soften the provision. Everyone knows that the land will not be acquired by the mere notice in the Gazette.


Senator Sir JOSIAH SYMON - The Minister of Defence has remarked that land might be wanted for the erection of a fort; but the vice of the Bill is that the Commonwealth might take the land for any purpose. I have no objection if, in the Defence Act, the Minister has power to take lands and cancel dedications, if necessary.


Senator Playford - I do not think that I have.


Senator Sir JOSIAH SYMON - If the Act does not contain a power of that kind, it ought to do so. If, however, it does contain such a power, and it is limited in thai! way, and exercised fairly, the States must submit. I mean that on a critical occasion it might become necessary to take even a part of our park lands for the purpose of a fortification.


Senator Trenwith - -Highly improbable.


Senator Sir JOSIAH SYMON - I hope not. But if that is so, it emphasizes the desirability of taking the power in a Defence Bill, if) you like. In this Bill, we ought not to take the power to the Commonwealth to take lands for any purpose, and, ¥ or whatever purpose it may be, to absolutely cancel - any dedication or reservation to which the land was subject at the date of the publication of the notification.


Senator Trenwith - If public covenience required' it.


Senator Sir JOSIAH SYMON - Not generally. Why should the liability be taken to exist in relation to a post-office? We might have an honorable senator saying that it would be desirable to have a post-office in the middle of our park lands in Adelaide - I admit that it is not likely - and there might be pressure brought to bear. Why should that be done? In clause 28, there is an expression which made me very suspicious as to whether it was not likely to be applied to the taking of the Capital Site. It says -

Where any Crown land of a State is acquired by a compulsory process, the State shall, subject to the Constitution, be entitled to compensation under this Act.

So far as I am aware, the Constitution excludes nothing from compensation except Crown land for the Capital Site. It looked as if the. land were to be taken, but, of course, the Constitution provides that no money shall be paid for Crown land. However/ 1 hope that that will be put right. The third sub-clause is the one to which I invite attention -

The State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue, or in respect of the severance of the land acquired from any other land of the State, or in respect of any injury to any other land of the State.

That is quite different from the law in the United States, where, of course, so far as lands are taken - not lands that are ceded, but lands that are compulsorily acquired - the jurisdiction and law of the State prevails just as much as it does in regard to other private land's therein. In this sub-clause it is assumed that the rights 'df dominion taxation, or revenue, are to be taken away. If that is ,so, surely there ought to be some compensation to the State in that respect. We do not know what the area is. Why should the State be excluded from compensation ? And, again, why should it be deprived of the right which an individual has to damage in respect of severance? Surely, the State, as well as an individual, ought to be entitled to compensation in respect of these things ?. They are matters that can be estimated, and it is only just that the State should be paid. But the main point in this connexion is that the Bill seems impliedly to say - and, whether it is right or not. it is a matter ' that requires very careful discussion, and may involve difference of opinion - that the rights of dominion of the States, and their rights of taxation, are to be taken away the moment the area of land is made Commonwealth property. I think that ought not to be. I hold a very strong opinion with regard to the income tax - that there ought to be no Federal immunity from the payment of it ; and, unless there is some very cogent and strong reason, to the contrary, I hold that the States ought not to be deprived of their revenueearning rights, or of their control, so far as their' local laws are concerned, in respect of lands, even when they pass into the hands of the Commonwealth.


Senator Trenwith - Except in the case of the Federal Capital.


Senator Sir JOSIAH SYMON - No doubt. That is specially provided for in the Constitution. Of course, it may be, when the matter comes to be argued and decided before the tribunal which takes cognizance of these matters, that this extraordinary sort of condominium, or Imperium"inimperio, may exist, and that, if the offence is committed upon Commonwealth property - say in the rooms of a post-office - it will not be cognisable by the State law. Although a position of' that kind is possible, we ought not to countenance the idea that a local law should' not run throughout the territory of a State quite irrespective of the ownership of a particular piece of land, or particular premises.


Senator McGregor - How would thehonorable senator's argument apply in casethe Commonwealth took over the Northern Territory ?


Senator Sir JOSIAH SYMON - It would not apply in, that case. The Northern Territory would then become a Territory of the Commonwealth, to which spe- cial laws would, of course, be applicable. It would be Territory of the Commonwealth until it was created an additional State. I am very glad that my honorable friend made that interjection. I hope that some method will be devised before very long by which the Federal Parliament may exercise control over that very valuable part of Australia. So far as regards the last aspect of the question, in relation to individuals, honorable senators may well take exception to the very drastic manner in which private land is proposed to be taken Under the Lands Clauses Acts, the procedure was commenced in a much nicer way than is here proposed. The owner of the land was served with a notice to treat. He then sent in particulars of his claim, stating what he estimated his property to be worth. Then came am offer from the promoter, who might be a Minister of the Crown, or might be a company undertaking the construction of a railway, or whatever the work . might bc. Then came an offer to the owner of the property. That offer was either accepted or declined. If it were declined, the claimant had to take proceedings to get his compensation assessed. Modern developments of the law in that respect were conceived in the best possible spirit. I quite agree with what the Minister said with regard to arbitrations. The arbitrations which used to take place were simply the arbitrations of par.tizans, and they led on very many occasions, in my judgment, to absolute unfairness. It was for that reason that, in South Australia, and in some other States also, I believe, provision was made that these claims for compensation should be settled by a Judge, or by a Judge and jury, if the Judge so decided ; but it was left for him to say whether he would invoke the assistance of a jury or settle the claims himself. I am bound to say that the settlements of claims for compensation in cases of this kind which have taken place under the new procedure have, generally speaking, given satisfaction. Therefore, I think that the old method night very well have been followed in this Bill. By that method, there was an element of fairness in the adjustment between the two parties, before there was an absolute compulsory taking of the property. The method of this Bill is certainly short, sharp, and decisive. The notification goes into the Gazette, and the land is then taken and is vested in the Commonwealth.


Senator Trenwith - It would only happen in that way in the case of some terrible emergency, and surely it is as well to have the power for use in an emergency.


Senator Sir JOSIAH SYMON - Whyshould it not be done in the old way? 1 do not like this high-handed way of dealing. Why should there not be an element of conciliation as between the Commonwealth and a citizen, or between the Commonwealth and a State? I have thought it necessary to direct attention to these points. The main point, to my mind is, that we ought, if possible, to have a Bill dealing with what is a requirement under our Constitution, the compulsory taking of land from the States or from an individual, and we ought if possible, in doing that, to conciliate the States - to meet their prejudices if honorable senators like. It is very advisable that that should be clone. Certainly some of the provisions to which I have called attention require softening - very great softening - in order that every source of possible irritation may be removed, and that the States may not look- w:ion the Commonwealth when it is undertaking such a thing as this, as holding a pistol at their heads. I shall, on these lines, assist my honorable friend the Minister in charge of the Bill, as much as I can in dealing with the details when we get into Committee; but I would ask him, in the meantime, to consider the matters to which I have directed attention, in order that if possible, that consideration mav lead "to some useful recasting of the Bill, which will not destroy or weaken in any way its efficiency, but may make it more palatable to those who are immediately concerned.







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