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Friday, 20 July 1906


Senator KEATING (Tasmania) (Honorary Minister) . - If Senator Symondesires to separate the provisions empowering the Commonwealth to acquire the Crown lands of a State from the machinery clauses, the best place for him to test the question will be on this definition clause, because I think that afterwards, in _ making provision for compulsory purchase, we enable the Commonwealth to acquire, in a certain way, the lands of an owner, and according to the definition the word "owner" includes a State. The three definitions to which the honorable senator has referred would have to be altered in order to enable the Crown land of a State to be dealt with differently from the mode proposed by the Bill. I refer to the definitions of "Crown land," "land," and "owner." My honorable friend has again referred to the possible acquisition, under the terms of this measure, of land in New South Wales for the purpose of a Federal Capital. Yesterday I said that, as far as I knew, it was never intended to use its provisions for that purpose. I explained then that 1 used the qualification " as far as I know," because it was not until about a minute before that that the idea was ever suggested to me, and that was by an honorable senator who was engaged at the table in making some notes. But, upon looking through the Bill, I do not think that itcould very well be used for that purpose. My recollection, when the point was raised yesterday, was that it was raised in connexion with the Bill of 1901.


Senator Drake - We omitted a clause so as to make it clear that it would not so apply.


Senator KEATING - I am not quite clear as to whether anything of that kind was done ; but I know that Senator O'Connor, the then Vice-President of the Executive Council, intimated that it was not intended to use the provisions of the Bill for the purpose of acquiring land for the Federal Capital, and I said that, " as far as I knew," that had been the continuous policy, of every Government. I am in a position now to withdraw even the qualification " as far as I know," and to give a most unqualified assurance on 'the part of the Government that there is not the remotest idea of applying the provisions of the Bill to the acquisition of land for the purpose of the Federal Capital.


Senator Millen - That is all right, so far as the present Government is concerned.


Senator KEATING - I invite the attention of Senator Symon to clauses 17 and 21 of the Bill. The former clause says -

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

(a)   be vested in the Commonwealth ; and

(b)   be freed and discharged from all trust obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.

The object of the Bill is to enable the Commonwealth to acquire the legal estate in lands.


Senator Clemons - It will have the legal estate in the Federal Capital Site in any case.


Senator KEATING - In clause 21, the Bill provides for the registration of the notification. In other words, we shall hold the legal estate in the lands in the State, our titles will be registered in the State, and we shall hold them like any other holdler of lands in the State.


Senator Sir Josiah Symon - That is doubtful.


Senator Best - It is the acquisition of Crown land. It will becomeCrown land of the Commonwealth.


Senator KEATING - Exactly, but according to clause 21, we shall registerour title in the State.


Senator Sir Josiah Symon - That does. not matter.


Senator Best - But it will become Crown, land.


Senator KEATING - Quite so.


Senator Best - And subject to the law of the State.


Senator KEATING - That is not theway in which we shall hold the Federal territory. During the postponement of the clause, Senator Symonmay give his consideration to this feature of the Bill, that it simply provides for acquiringthe legal estate in the land in a State, the title of the Commonwealth to which will be registered subject to the laws of the State in the records of the State. But. as regards the land acquired for the Federal Capital, that will be the territory of the Commonwealth, and independent of any jurisdiction as to registration, or anything of the kind, in the State. I am only drawing attention to this matter for the benefit of those who think that the Bill might be utilized for such a purpose. I give them an assurance that it is not intendedby this Government, and never was intended, I believe, by any Government, to use the law for such a purpose ;that, on the other hand, it is intendedto acquire the legal estate in the land as contradistinguished from the acquisition of Federal territory.


Senator Fraser - But any Act which we may pass will not revoke the provision inthe Constitution..


Senator KEATING - Certainly not.. We shall have to pass a separate Act toacquire the Federal territory.


Senator Playford - If it is desired tomake it absolutely clear, we could insert two or three words, saying that nothing in this Act shall be construed to mean soandso.

Senator Sir JOSIAHSYMON (South Australia) [11.40].- I knew quite well that when the Minister of Defence applied hismind to the subject the difficultywould be solved at once. " If you put in two or three words," he says, "that will makeit clear, and will absolve the Government from a promise." No Ministry likesto give an assurance which, when they happen to go out of office, as they all must do some day or other, may not be honoured. Senator Keating knows that in the case of the Federal Capital' Site, not merely Crown land, but also private land, will have to be acquired. Whatever may be the case with Crown lands, there is no differentiation if private lands are required for that purpose. Of course, the legal estate will be vested in the Commonwealth, and the registration will be absolutely the same as if it were a private owner. The only difference will be that it will exercise sovereignty over the whole of the area, and the private lands will then become Crown lands of the Commonwealth. I do not think that that would remove the difficulty. The right solution is that which the Minister of Defence has offered to us, and which. I hope we shall all accept. As regards the definition of " Crown land," Senator Keating says that it may be best dealt with on the definition clause. As he thinks that ir will hi more convenient to deal with that clause later on, I shall «ot oppose its postponement, because, although it may slightly embarrass us in dealing with,. the machinery owing to the definition of owner to which he has called attention, we still can come back to the clause, and give effect to our view of separating the provisions with regard to States.

Motion agreed to; clause postponed.

Clause 6 - .

The Governor of a State, acting with the advice of the Executive Council thereof, may (by force of this Act and nowithstanding 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, and execute any instrument or assurance for the purpose of granting, conveying, or leasing the land to the Commonwealth.

Senator Sir JOSIAHSYMON (South Australia) [11.44]. - In my second-reading speech I offered some observations with regard to this clause. The provision, as it -stands in the existing Act, is-


Senator Best - In sections 3 and 5.


Senator Sir JOSIAH SYMON - No ; section 3 gives power to the GovernorGeneral to acquire.


Senator Best - And section 5 deals with the Governor of any State.


Senator Sir JOSIAH SYMON - The honorable senator will find that section 3 is subdivided and reproduced in clause 15 of the Bill, while clause 6 is a reproduction of section 5, which reads as follows: -

In the case of any Crown land 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 the simple power given to the Governor of a State by virtue of the Act, to sign the document. That, of course, is purely a, Ministerial act. In this Bill a very grave departure has been made. There is no comparison between the clause and the section, although the marginal note of the clause refers to section 5. Under this provision there is a distinct interference with the self-governing powers of the State. It relates, as was said yesterday in the course of the discussion, to' the selling of land privately - that is, not to taking it by compulsion. It declares that the Governor of a State may sell or lease to the Commonwealth any Crown land - by force of this Act, and notwithstanding anything to the contrary in the law of any State.

That is to say, suppose a State Parliament had passed an Act forbidding the alienation of any particular piece of land, the Executive, owing no responsibility to the Commonwealth, owing responsibility only to its own Parliament and its own electors, would be entitled to set the State Act at defiance, and enter into an agreement to sell that land to the - Commonwealth. I say, first of all, that, if anything of that sort is to be done, it must be done by the Executive of the State under its responsibility to its own Parliament and its own people. If land subject to an Act of Parliament of that kind is required by the Commonwealth, the Commonwealth can, of course, obtain it by compulsory taking under the subsequent provisions of this Bill. But it is not necessary that the Commonwealth should insert a provision enabling the State Government to set the State laws at defiance. The point is that this provision takes away the responsibility of a. State Government to its Parliament, by enabling the State Executive voluntarily to do something in defiance of an Act of its own Parliament-' under the authority of a Commonwealth Statute. I venture to think that no State would willingly submit to the Commonwealth Parliament imposing upon the Executive of the State duties of this kind, and taking away its responsibility to carry out the State laws. The Commonwealth power under the right of Eminent Domain, or sovereignty, may take the lands of a State, no matter for what purpose thev have been dedicated, or reserved, or restricted bv the operation of a State Act. But the Commonwealth Parliament has no right to take away from the States Parliaments their control over their own Executives, and to relieve them from the duty of consulting their own Parliaments on the subject. Honorable senators have only to read the clause to see how far-reaching it is. I do not know why it should have been put -in this shape, and why the old section should have been changed/if the object was merely to enable the Governor of a State to do a Ministerial act by signing a grant without an agreement having been entered into. Of. course, a State Executive can





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