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Friday, 20 July 1906


Senator KEATING (Tasmania) (Honorary Minister) . - After listening very carefully to the remarks of Senator Symon, both yesterday and this morning, I venture to suggest to the Committee that he has not advanced any solid reason why the title he urges should be adopted in preference to the short title of. the Bill. No doubt we all aim at getting simplicity in titles. The title of the present Act - Property for Public Purposes Acquisition Act - is' very cumbersome. The title which is suggested by the amendment is " Lands Acquisition Act." In all the Stales there is a number of Acts on this subject. Here, for instance, is a volume of Tasmanian Statutes, in which I find following close upon one another a Land for Public Purposes Acquisition Act 1884, a Lands Resumption Act 189-1, and Lands Resumption Act 1902. There is another Act bearing on the same subject which does not seem to have any particular short title. Then there are the Lands Vesting Act 1898, and the Lands 'Clauses Act 1857. All these Acts have their parallels in the Statutes of the different States. There is one way of indicating to the people of the States who will be affected by legislation of this character, which is analogous to States legislation, the difference between the enactments of the Commonwealth and the corresponding enactments of the States.


Senator Millen - Did the Government find any necessity for choosing another title for the Conciliation and Arbitration Act? They adopted the same title as that of a State Act in that instance.


Senator KEATING - Possibly if we could have adopted another title it would have been advantageous. But the Constitution enables us to legislate with regard to conciliation and arbitration, and it was desirable that we should adopt the terms of the Constitution in that respect.


Senator Sir Josiah Symon - So does the Constitution enable us to legislate with regard to the acquisition of land.


Senator KEATING - But we are not absolutely tied with regard to the particular title we shall adopt for any piece of legislation. In the case of conciliation and arbitration, we had a term which was known to everybody as exactly indicating the subject as to which legislation took place.


Senator Sir Josiah Symon - That is the case here.


Senator KEATING - We have over and above the particular powers that are conferred, those powers of sovereignty which are inherent in every sovereign government.


Senator Sir Josiah Symon - But that is not what we are dealing with.


Senator KEATING - -I think it is. I paid to the honorable and learned senator the utmost attention when he was speaking, and I must ask him to reciprocate that courtesy while I am addressing myself to this amendment.


Senator Sir Josiah Symon - Surely I may ask a question.


Senator KEATING - Certainly ; but I decline altogether to carry on a duet with any honorable senator.


Senator Sir Josiah Symon - I have no desire to carry on a duet with the Minister, but I wish to ask a question when I think it necessary.


Senator KEATING - The honorable and learned senator may have no such desire, but his actions seem to indicate something to the contrary. It has been objected to the short title of this- Bill that Eminent Domain is an expression that is not known to the municipal law of Great Britain. I venture to differ from Senator Symon in that respect. The expression has been known to the municipal law of Great Britain.


Senator Sir Josiah Symon - Where? May I ask that?


Senator KEATING - It has been referred to in the courts. The expression, as the honorable and learned senator has said, may have had its origin in connexion with international public law, but it is known to English .municipal law. The term itself is denned in the Law Lexicons. It is denned in the ordinary English dictionaries. It is not, therefore, a term ' that has purely emanated from America It is not a new fangled Yankee notion which had no existence until twenty-five or thirty years ago, and I venture to say that if the only criticism that could be levelled at the title was that it was an importation from Yankee land, that would be no demerit in itself. But I find in the Encyclopædia of the Lotus of England, a recent publication, a chapter under the heading of " Eminent Domain " (page 486)., where the term is defined. This work says -

The right of the State or the Sovereign to its or his own property is absolute, while that of the subject or citizen to his property is only paramount. The citizen holds li is property, subject always to the right of the Sovereign to take it for a public purpose. This right is called " eminent domain."

It goes on to say -

The exercise of this power by the State, whether directly or by delegation, is known in American law as the exercise of the right of "eminent domain," which may therefore be defined . 15 the power of the State to take private properly for public use.


Senator Millen - Not merely land.


Senator KEATING - Itincudes all property.


Senator Millen - Does this Bill include all property?


Senator KEATING - It does not.


Senator CLEMONS (TASMANIA) - That does not matter, of course !


Senator KEATING - When you give a title to aBill, it does not necessarily indicate that everything under that heading is included in the legislative provisions of the Bill. The work which I hold in my hand is an encyclopaedia of the laws of England, not an encyclopaedia of the laws of America and it devotes something like a page and a half to a description of the term "Eminent Domain."


Senator Sir Josiah Symon - The honorable senator just read that the term was first used in American law.


Senator KEATING - The book mentions, as a matter of historical fact, that the exercise of this power is known in American law as " Eminent Domain."


Senator Sir Josiah Symon - It is not known in English law.


Senator KEATING - It is known in English law.


Senator Best - It is certainly a recognised term in English law.


Senator KEATING - In Wharton's Law Lexicon the term is thus defined: -

Eminent Domain, the right which a government retains over the estates of individuals to resumethem for public use.


Senator McGregor - Is that an American publication ?


Senator KEATING - No; it is a wellknown English book published by Stevens and Sons.


Senator Millen - And also covering Crown land.


Senator KEATING - I am not denying that for a moment. In the OxfordNew English Dictionary a reference is made to " Eminent Domain " -

Ultimate or supreme lordship; the superiority or lordship of the sovereign power overall the property in the State, in accordance with which it is entitled to appropriate by constitutional methods any part required for the public advantage, compensation being given to the owner.

Then it goes on to say -

A term chiefly used in International Law, and the law of the . United States of America.

It does not say that the term is confined exclusively to the United States, nor is it confined exclusively to international law. This in an authoritative English dictionary, in which the term is first defined as the right of a sovereign or of a State to resume the property of an individual for public purposes, due compensation being given. In an American law dictionary which I have here the term is described at greater length. On page 658 of Bouvier's Encyclopedia of the Law -or law dictionary - under the heading of " Eminent Domain," it is stated -

The phrase " eminent domain " appears to have originated with Grotius.


Senator Sir Josiah Symon - He was not a Roman.


Senator KEATING - I am aware of that. He was an eminent jurist of about theseventeenth century.

The power is a universal one, and as old as political society, and the American constitutions do not change its scope or nature, but simply embody it, as described by Grotius, in positive, fundamental law.

The power covered by this term is as old as political society, and the adoption and use of it in the United States does . not by any means make is solely American. It expresses the power that resides in every sovereign community - the right of the resumption of private property for public purposes, compensation being given to the person who is deprived of his private property rights.


Senator Best - Besides, the Americans have no patent right in it.


Senator KEATING - They have no patent right in it, and the fact that they have adopted it should not influence us in the direction of being scared at the novelty of the term, so far as Australia is concerned. It is advisable that we should have, wherever we can, a short title for our Bills, and' we should also, if we conveniently can, have as a short title, wherever there is a corresponding subject in States legislation, one that will clearly indicate to those who will be the subject of both classes of legislation, the distinction between Commonwealth and State laws. The object is thattheymay know, when either class of legislation is being put into effect, whether it is State or Commonwealth legislation. For these reasons, I think that the title is one that I can fairly ask the Committee to let stand. I shall therefore ask honorable senators, if Senator Symon will not withdraw his amendment, to assist me in maintaining the title as it appears in the Bill. lt is a title that clearly expresses the class of power which the Commonwealth would be exercising. lt indicates that under the provisions of this measure the Commonwealth would be exercising its power for the purpose of acquiring land. It would te for public purposes that the Commonwealth as a sovereign power would be resuming property, and it would be resumed subject to that provision which is incident to the exercise of "Eminent Domain" - that is, according to the individual who is deprived of his property with adequate compensation.







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