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Thursday, 19 July 1906


Senator MILLEN (New South Wales) . - After the interesting and informative speech to which we have just listened, I do not propose to detain the Senate very long ; but there are one or two matters that were not touched upon by Senator Symon, to which I desire to direct the attention of the Minister and of the Senate. I should like, before doing so, to emphasize particularly one point which Senator Symon raised, and as to which the evidence presented by the Bill shows a strong desire - I presume on the part of the Department, rather than of the Minister - to secure more autocratic powers as against private owners. Whatever mav be said on behalf of those who framed this Bill, there is manifest a desire in many ways - little ways, I admit, though taken together they represent a clear indication - on the part of those who control the matters touched by the Bill, to secure larger and more autocratic powers, as against private individuals. I do not propose to enumerate those particulars. Senator Symon referred to some of them, but he did not exhaust the list; and in Committee, I shall take the opportunity to point out various clauses in which these enlarged powers are sought to be obtained. One other matter to which the previous speaker referred, was the many instances in which this Parliament has had to amend Bills passed in previous sessions. It may interest honorable senators to know that, whilst the Federation is only six years old, and whilst many of the Bills which we have passed were of a machinery character - which I should have thought ought not so soon to have required revision - we have already had to direct our attention to twelve amending Bills. This one will make the thirteenth. There is something ominous in that number ! Senator Symon has referred to this point somewhat in a tone of rebuke. I am not addressing my remarks particular ยป- to the Minister, because the Senate itself must take its share of responsibility for the necessity for the introduction "of amending legislation, which is due to faulty work. I rather - think, if I may say so, that the tendency is. very often to view a measure from the point of view of the side of the Senate from which it emanates. That remark -applies to both sides. I should also like to say to the Minister, if I can do so without offence, that there is likewise a tendency or. the part of all Ministers to resent suggestions for the alteration of their Bills. Thev have, perhaps, had to do with shaping them in the form in which thev appp.tr before us, and think that they should be passed as a complete whole. They view with suspicion and resentment any proposal for the alteration of their measures; but I think that it is incumbent upon honorable senators to criticise Bills with a view to improve them, and the Minister should he willing to receive an- suggestions made for that purpose. I hope that in connexion with a Bill of this kind any suggestions that are made will be received 1,v the Minister- irrespective of the side from which they come - not as attempts to harass him in any way. but as indicating a desire to make what is really a machinery Bill a perfect measure, which will not require alteration again within SC short a time. I now wish to direct attention -to the definition clause of this Bill. When the Minister was speaking I pointed out by interjection that a material alteration has been made in the definition of Crown lands. Instead of Crown land being defined as - "the property of the Crown, whether dedicated to any public purpose or not, which has not been granted or contracted to be granted for an estate in fee simple," this Bill leaves out the words - which has not been granted or contracted to be granted for an estate in fee simple.

The significance of that alteration will be seen when I remind honorable senators that in most of the States there are in the land laws provisions whereby an alienation may, be preceded by a conditonal lease. I know that that system prevails in New South Wales, and I think that a parallel provision is to be found in the Lands Acts of some of the other States. In New South Wales we have our conditional purchase system, and our conditional lease system. A man who obtains land on the conditional-purchase system pays a small deposit and a series of subsequent annual payments until the land becomes freehold ; and- it never becomes freehold until he has paid up the last shilling to the State. A man who obtains land on a conditional lease obtains it for a certain period, but he has the right to pay for the price of the land in order to convert it into freehold. Under the law as it stands in New South Wales that land is regarded as belonging to the man in occupation of it; but under the Bill which is now presented to us it is to be regarded as Crown land. I asked the Minister yesterday for a reason for the alteration ; and, if I understood his reply aright, it was that it had been deemed desirable by the framers of this measure that the Commonwealth, in resuming land, should deal only with the State Government, leaving the selector to look to the State Government for his share of the compensation. That, I think, is hardly desirable or equitable. In the case of a conditional lessee, whose land was resumed, the Commonwealth would ignore the lessee altogether; and the State Government, having nr great or direct interest, would probably not present as insistently or successfully as the lessee, the factors which determine the value of land. But even supposing the State Government did press the matter, and agreed that the

Commonwealth should take over the land at the market value of, say, 15s. per acre, the owner of the land might feel absolutely confident that he could have made a better bargain privately. But the State would reply that only 15s. per acre had been received, and that that was all the compensation that could be paid. It would be far better for the Commonwealth to deal directly with the man, who, although not strictly the legal owner of the land, is, to all intents and purposes, the owner, and is so recognised under the Act we passed five years ago. I ask the Minister to seriously consider the advisability of retaining the principle which obtains in the existing law. It is rather significant that, although Senator Keating explained that it is desirable for the Commonwealt h to treat with only one party, that principle is not adhered to in dealings with private lessees. In the case of the latter what 1 am advocating is done, clause 17 providing that, as between lessor and lessee, the apportionment of the rent shall be adjusted mutually by the three parties - showing that the Commonwealth takes an interest in those subsequent proceedings - and that, if a settlement is not thus arrived at, a reference shall be made to the ordinary machinery of the Court. That is only right and proper.


Senator Keating - The exception in the original definition of "Crown land" applies to persons in contract for the purchase.


Senator MILLEN - Those are the very persons of whom I am speaking.


Senator Keating - Would they not come in as lessees ?


Senator MILLEN - I would further point out that there is a clause dealing with tenants other than tenants at will; and in both cases it is provided that the Commonwealth shall deal with two parties, so that the explanation of the Minister seems to lose its force. If it is desirable in the case of an ordinary lessee to deal with both the lessee and the lessor, surely a Crown lessee may reasonably hope to be consulted.


Senator Henderson - Why should a Crown lessee not be held responsible to the authorities with" whom he has made his earlier arrangement?


Senator MILLEN - That is exactly what the Minister says should be done.


Senator Henderson - And it should.


Senator MILLEN - If so, should not the same principle apply to the lessee of a private person?


Senator Keating - It will apply.


Senator MILLEN - No, as the Minister will see if he turns to clause 31. If the Commonwealth resumes a portion of Crownland, of which an individual has a lease, surely the lessee has a right to compensation for the lease which is taken away from him.


Senator Henderson - That is a question between the State and the lessee Of the State's property.


Senator Playford - It is a. question between the owner of the fee-simple and the tenant.


Senator MILLEN - But that is exactly what the Bill does not do in certain cases. That principle is followed in the case of a Crown lessee, but not in the case of a private lessee. If Senator Henderson's interjection has any force, the private lessee ought to be left to deal with his landlord, in the same way as a Crown lessee is left to deal with the State.


Senator Henderson - My interjection was in reference to Crown lessees.


Senator MILLEN - If the interjection has any force, the same principle ought to apply to the lessee of private lands, who should be told to apply to the private landlord for his share of the compensation.


Senator Pearce - Clause 31 only compels the production of the lease.


Senator MILLEN - Clause 31 provides -

If any person having a greater interest than as a tenant at will of any land acquired by compulsory process, makes a claim for compensation in respect of any unexpired term or interest under any lease, the Attorney-General may, by demand in writing, require him to produce the lease in respect of which the claim is made, or the best evidence thereof inh is power.

This clause clearly and rightly shows the intention of the Government to compensate any man whose interests may have been disturbed, minimized, or destroyed by the resumption of land. It is very common for a person to take a lease of land for business purposes ; and it might happen that as soon as such a person had entered into possession, and spent money in fittings, advertising, and incurred other dead expenditure necessary at the initiation of every enterprise, his land was resumed by the Commonwealth. In such cases, in addition to compensation paid for the land and buildings, there ought, as was clearly intended, to be compensation to the tenant for his displacement.


Senator Henderson - Would the State barefacedly rob a man of his interests?


Senator MILLEN - What has that to do with the case?


Senator Henderson - The honorable senator is practically making an accusation against the State.


Senator MILLEN - I have no patience with interjections of that kind ; I have made accusations against no one.


Senator Henderson - The inference is clear enough.


Senator MILLEN - The inference mav be clear enough to Senator Henderson, but I leave it to other honorable senators, who. I think, will find it sufficiently obscure. If the contention of Senator Henderson is sound with reference to one class of lessees then it ought to be sound in regard to the other class. If one method is better than the other, which is the better one? I am not saving that any State is likely to do harm ; but I do say that there is a possibility of great danger to a lessee of a State, or to any individual who is debarred from urging his own claim. Would Senator Henderson, under the circumstances, not rather represent his own claim than have it represented by the State?


Senator Henderson - I would rather have it represented by myself.


Senator MILLEN - Ali I ask is that the rights extended to the private tenant, shall be extended to the Crown tenant.


Senator Henderson - I do not think the positions are at all parallel.


Senator MILLEN - A similar question arises in connexion with mortgagee anc! mortgagor. In regard to these, the Commonwealth is prepared to meet both, and endeavour to arrive at an adjustment; and that is a very fair proceeding. I only ask that the same principles shall apply to conditional purchasers, lessees, or tenants of the Crown. To leave a tenant's case to be represented by, probably, a State official is to deny the tenant the right of showing to what extent he is damaged by the resumption. I shall await with interest the Committee stage, when I trust the Minister will he able to give some better explanation than he offered yesterday, or be prepared to accept an amendment which will bring the provision relating to Crown lessees into conformity with the existing law, or with the clauses which deal with private lessees and mortgagees and mortgagors. Knowing the many complications in tenure under the land laws in New South Wales - complications which are largely duplicated else where - I am certain there will be much trouble, litigation, and heart-burnings if operations under the Bill become numerous, and the States Governments are permitted to negotiate the amount of compensation to be paid to a third party not interested in any way. "Senator MULCAHY (Tasmania) [6.12]. - No doubt" the provisions of this Bill can more effectively be dealt with in Committee, but I should like to call attention to the necessity for more ample means than exist at present for dealing with Commonwealth property. Whether this Bill, presents an opportunity for such legislation I do not know ; but by the Constitution itself all the various properties associated with the transferred Departments passed over ipso facto. No doubt a great deal of property hao since been acquired by the Commonwealth Government in connexion with the Postal Department and the Defence Department, and I do not know that there is power to deal with that property in any way except by sale; indeed, I am not sure even as to the power tol sell. In the Act which this Bill repeals power is conferred on the Minister to dispose of property in excess of requirements, and it seems to me that there should be the power of exchange. A post-office, for instance, may not be in a very convenient situation, and, instead of requiring the process of selling, and acquiring another site, the Minister should be able to exchange without any money transaction.


Senator Millen - I think there is that power in the Act.







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