Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 20 July 1906

Senator DRAKE (Queensland) . - In our legislation we should, I think, always consider the interests of the public, and in a special decree the interests of persons who are likely to be affected. We have now to consider the case of a man who is the owner of land which is likely to be taken away from him by the Federal power. He has a right to be placed in a position in which he can find out the easiest possible manner under what conditions his land is to be taken away. I know that it is almost impossible to hope that, generally speaking, a layman will be able to understand the law w!hen he sees it.

Senator Guthrie - Or a lawyer either.

Senator DRAKE - Or a lawyer either sometimes ; but we should recognise, so far as we can, the right of a layman to know what his rights are under the law. A layman whose land is to be taken away by the Commonwealth will probably procure a copy of the Commonwealth Statutes. If he looks at the index he will find there, first of all, the heading, " Property for Public Purposes Acquisition Act, 1901." He will naturally assume that there he will find the law on the subject: nor will he ever suspect that that Act has been repealed1 'by another bearing the title " Eminent Domain Act."

Senator McGregor - Does the honorable and learned senator suspect that he will not go to a lawyer first?

Senator DRAKE - I want to enable a man to find out what his rights are without going to a lawyer. He may perhaps eventually have to go ta a lawyer.

Senator Best - No greater calamity could overcome him !

Senator DRAKE - It is by obscure measures repealing Acts that the reproach is enabled to be hurled against lawyers of making the law so difficult that it can only be understood by the profession. Where we have an Act dealing with a specific subject, we should, even in the title, indicate as nearly as possible what the purpose of the Act is.

Senator Best - In the existing Act the English title is not adopted.

Senator DRAKE - We have in all the States Acts dealing with the resumption of land, and in every case in the short title there is something to show what is the subject-matter of the Act. The Minister in charge of the Bill has expressed the fear that the amendment would give rise to confusion as between the Commonwealth Statutes and the States Statutes on the subject. It must be remembered, however, that any person sufficiently interested to search the law on the subject would know that it was to be found in a Commonwealth Statute, seeing that a Federal power was to be exercised, and, therefore, I cannot see that any confusion could arise. Senator Symon* has made it abundantly clear that the short title of the Bill is not the most appropriate that could be selected. I support the amendment on the ground that our Statutes ought to be made as clear as possible to the public, especially those members of the public who are particularly affected. That end can best be attained by adopting a short title which clearly indicates the subject-matter of the Bill, and directs the attention of the public to the fact that the Act which was passed in 1901 has been repealed.

Senator Sir JOSIAHSYMON (South Australia) [11. 2]. - I do not know that, in an ordinary case of a short title, I should be disposed to say another word, but this matter is much more important than perhaps some honorable members imagine. It could not possibly be suggested that I submit this amendment with any intention to be troublesome; my sole object is the simplification of the Bill. I am in no way scared by the use of a term that bears an American mark. We have substantially, and certainly in principle, derived our Constitution from that of the United States; and I have r.o sort of a priori objection to any constitutional or municipal law phrase which may be brought from America, so long as it is applicable, and understandable of the people. The Honorary Minister has given no reason why we should not adopt the simple non-technical expression, " Lands Acquisition Act," as a short title. " Eminent Domain " is, in essence and on its face, a technical expression, and I am bound to say, without doing any injustice to their learning or knowledge, that there are scores of lawyers in Australia who, if they tumbled across the phrase in an index of Acts of Parliament, would have to refer to one of the many dictionaries consulted by the Minister, in order to ascertain what was meant.

Senator DAWSON (QUEENSLAND) - The lawyer might not know what to look for.

Senator Sir JOSIAH SYMON - That is so. If a lawyer were looking into the matter at the instance of a client, he would, after having ascertained the interpretation of " Eminent Domain," have to explain that the Act did not deal with the subject of Eminent Domain:, but simply with that part of it which relates to the acquisition of land. He would have to explain that the Act had nothing to do with that great part of the doctrine relating to the acquisition of all the property of an individual, if the necessities of the State demanded.

Senator DAWSON (QUEENSLAND) - In such a case, what becomes of the unfortunate' layman.?

Senator Sir JOSIAH SYMON -Yes; what becomes of the unfortunate layman, for whom we are legislating? We are not legislating in order that, on the very threshold of the Act, the fortunate or unfortunate layman shall be sent to a lawyer. There difficulties enough in the substance and the sections of Acts of Parliament, without making it necessary for a layman to consult a lawyer as to the very meaning of a title. The point raised by Senator Drake requires one word more of emphasis. Four years ago we passed an Act with the same object that it is desired to achieve by reason of this Bill. The present legislation is supposed to be an improvement, and, therefore, I ask, why should we change the short title? This Bill, when it gets on the statute-book, will be indexed under the heading of " Eminent Domain," and nobody will know that it is practically the same legislation, or has any relation to the legislation, passed some years ago. The argument of Senator Drake is irrefutable, if we are to take into consideration the interests of the community, and not put the Statutes in a state of inextricable confusion. As a lawyer, I do not need the honorable Minister to in struct me as to the original meaning of " Eminent Domain.' The meaning is the assertion of the theory or doctrine that the sovereign authority is entitled, in case of national necessity, to take the property of any individual, whatever that property may be. The doctrine was imported from another public law into America, because in that country there was no sovereign, and, therefore, no expression to meet the case. The expression is not used in any English Act that I am acquainted with, but, of course, the doctrine exists in practice in the old country and finds expression in the Land Clauses Consolidation Act. Our legislation on the subject goes further, and requires the word "acquisition," so that the title of the present Act is correct.

Senator Best - If the honorable senator thinks that we ought to adopt a recognised title well known to the public, why not take the English title?

Senator Sir JOSIAH SYMON - I say we ought to adopt a title which describes ยป the Bill, but we could not take the title of the English Act. Had Senator Best been here yesterday he would have heard me suggest that, instead of embodying in one Act the power of acquisition, plus machinery, it would be much better to have a Land Clauses Consolidation Act, which would provide the machinery only, leaving the acquisition to be accomplished by general or particular Acts.

Senator Best - That is not the practice of any of the States.

Senator Sir JOSIAH SYMON - I am making no complaint on that score. The reason that we cannot use the title "Land Clauses Consolidation" or "Lands Compensation " is because the Bill also gives the power of acquisition. The long title, therefore, is quite proper, because it indicates that the legislation gives the power of 'acquisition, and also provides the machinery by which the acquisition shall be carried into effect. We must have a short title, to indicate, as far as possible, the substance of. the measure, and I suggest that, instead of going abroad for a technical phrase, we should use absolutely the simplest and most intelligible. In England the term "Eminent Domain" has never been adopted. In the States there is an expression more elaborate.

Senator Best - " Lands Compensation," which covers acquisition.

Senator Sir JOSIAH SYMON - Then, 1 think that is quite enough ; and there is no need for an esoteric technical expression like " Eminent Domain," which, according to the authorities, is chiefly known in another law, and in America.

Suggest corrections