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Friday, 20 July 1906


Senator KEATING (Tasmania) (Honorary Minister) . - I have listened with much interest to the arguments of honorable senators. I should like to point out that the very object of the clause is to make the relations between the Commonwealth and the States in these transactions more harmonious. Under the present law of the Commonwealth, if it requires Crown land, it can acquire those lands by agreement or compulsorily. In every instance, hitherto, in which the Commonwealth has acquired Crown land for public purposes, the State concerned has been approached with a view to negotiation. When approached in this way the State points out that, while the Commonwealth Act empowers the Governor of a State to grant land in the name of the King, the State law requires that he shall do so subject to certain reservations and conditions. For instance, one condition that is attached to grants in Western Australia is that, within twenty-one years from the issue of the grant, the State may resume, without compensation, for certain specified public purposes, if no improvements shall have been made on the land. In one particular instance, a deed from one of the States purported to grant land to the Commonwealth, subject to the reservation that the State itself could, within twenty-one years, under certain circumstances, resume the land as against the Commonwealth. To such a condition the Commonwealth, of course, objected, and it then appeared that the State had no desire to have that condition imposed, but that the condition was compulsory under tlie State law.


Senator Fraser - That must have been a special case.


Senator KEATING - Not at all. I could give quite a number of instances. In >Jew South Wales, in nearly every instance, the Commonwealth has been forced to exercise its compulsory powers ; and why ? Because, while the law of New South Wales empowers the State Governor to grant the land, the. State law requires that there shall first of all be selection or an auction. The Commonwealth, under such circumstances, is asked whether it is willing to have the land subjected to auction, and, of course, a negative reply is given. Thereupon, the State, which does not desire to with hold the land, expresses willingness to let it be transferred by the more speedy process of compulsory purchase. It is said by Senator Symon that this defect is overcome by clause 17, but that clause applies only to acquisition by compulsory process.


Senator Sir Josiah Symon - Exactly.


Senator KEATING - We are in 'the position in New South Wales that if the Commonwealth desires even only half an acre for public purposes, it has to be acquired compulsorily.


Senator Sir Josiah Symon - A notification in the Gazette settles the matter.


Senator Best - It is only necessary to introduce the Gazette notice into this particular clause to effect the purpose desired.


Senator KEATING - This clause is to make it absolutely certain that the Governor of a State, when exercising the powers conferred upon him, exercises them directly on the authority of Commonwealth law.


Senator Sir Josiah Symon - I will not ask the question if it will embarrass the Minister, but does he not think that the Commonwealth has no power whatever to repeal a State Act of Parliament, which imposes restrictions on land. It may take land compulsorily, but it has no power to repeal a local Act.


Senator KEATING - We do not propose to repeal local Acts. As I pointed out on the second reading of the Bill, in connexion with this clause, we rest the authority of the Governor of a State when dealing with the Commonwealth in these matters entirely upon our legislation. This legislation is within our sphere. It is in the exercise of one of the powers conferred upon us by the Constitution. When legislation within our jurisdiction is repugnant to any local legislation upon the same matter, to the extent of the repugnancy 'and to that extent on lv the local legislation is avoided. That is all that is required. It is required to avoid any local legislation that would interfere with the interests of the Commonwealth, and only to that extent. This is not proposed out of any spirit of hostility to the States. The whole object is to enable the acquisition of land from the States to be carried out by negotiation rather than by the compulsory process. I am probably correct in saying that all the advisers of the Federal Government are of opinion that the law as it stands at present enables the Governor of a State to transfer property without any reservations which a State law might impose. But there has been a doubt raised in the minds of the advisers of some, at least, of the Governments of the States. They are not indisposed to give the lands we require, but they say "To set the matter beyond all doubt, you had better exercise your compulsory power," and in New South Wales to this day we have been exercising our compulsory powers of acquisition. Is it not much more desirable that we should acquire State lands by negotiation wherever possible, and should resort to compulsion only in cases where we have vainly exhausted all the possibilities of negotiation? The amendment of section 5 of the existing Act here proposed is to set aside any doubt as to the authority of a Governor of a State, and to meet the views of those States in which such a doubt has been raised.

SenatorFraser. - Have they agreed to it?


Senator KEATING - I do not know that they have agreed to the clause itself, but I understand that all that they require is an amendment of the section in respect to which some doubts were raised as to the authority of the Governor of a State. Honorable senators must see that the whole object of the clause is to enable negotiations between the State and the Commonwealth to proceed. So far from being anything like an aggravation or interference with the States, the object is to substitute negotiation for compulsory acquisition. If we use our compulsory powers we may, of course, acquire any property we desire. Our relations with the States so far have been harmonious, but who knows that hereafter it may not be said in some of the States that whenever the Commonwealth acquired property from those States it always resorted to the compulsory method, although it had an alternative to negotiate ?


Senator Dobson - Is not clause 6 permissive ?


Senator KEATING - I was going to show that. Senator Symon says that this clause relieves a State Executive from responsibility to the State Parliament. To what extent ? To this extent, that the Executive is enabled to say to the State Parliament. "We have done a legal act."


Senator Sir Josiah Symon - I think it would be an illegal act.


Senator KEATING - The policy of the action would bea matter for the State Executive to consider. We do not throw any obligation upon a State Executive to assent in every instance. We simply empower a State Governor with the advice of his Executive Council to do this directly under the authority of our law.


Senator Sir Josiah Symon - What right have we to empower him ?


Senator KEATING - We have the right.


Senator Sir Josiah Symon - We have the right to confer upon a State Governor the power to set aside a State law ?


Senator KEATING - Undoubtedly, we have the power to acquire State lands for public purposes of the Commonwealth. We hare already done what Senator Symon says we have no right to do, and the honorable and learned senator took a part in the first session of the Parliament in providing for that.


Senator Sir Josiah Symon - If we did it it was wrong, but I do notthink that we did do it.


Senator KEATING - The extent to which we have conferred the power is the only point that has been raised.


Senator Sir Josiah Symon - Senator Best has pointed out that we did not do that at all. What we did was to empower the Governor-General to enter into negotiations, and when they were completed to empower the Governor of the State to consent to the grant.


Senator KEATING - We have saidthat the Governor of the State may grant such land, and that is all that we say now. Wesay that he may do so by force of this measure, notwithstanding anything to the contrary contained in a State law.


Senator Sir Josiah Symon - We say in this clause that the Governor of a State maysell or lease, notwithstanding any local law to the contrary.


Senator KEATING - Quite so.


Senator Sir Josiah Symon - I say that we cannot do it, and that no State ought to submit to it.


Senator KEATING - I am very sorry to hear the honorable and learned senator suggest in this Chamber that any State should take up such an attitude.


Senator Sir Josiah Symon - Certainly I do, because this is a most unfederal provision.


Senator KEATING - I do not think thatany State is not desirous of working harmoniously with the Commonwealth.


Senator Sir Josiah Symon - It is the Commonwealth Government that is not desirous of working harmoniously with the States.


Senator KEATING - The Commonwealth has shown no disposition to work inharmoniously with any State. The object of this clause, as I have said before, is to secure negotiation as the first step in dealing with a State, and that we shall not be put in the position in which we are at present, of having to resort to our compulsory powers in every instance in which we desire to acquire land not subject to such reservations as those to which I have referred.


Senator Drake - Could we not provide for an agreement in the notification in the Gazette ?


Senator KEATING - That is practically the. procedure which we are following at present.


Senator Sir Josiah Symon - Why not leave it at that?


Senator KEATING - The State authorities say to us, "We cannot give you this land without the right to resume it within twenty-one years." We say, " We cannot take the land fromyou and give you the right to resume." They reply, " We have no wish to impose that condition upon you, but the State law imposes that condition, and therefore you had better acquire the land compulsorily." Why should the Commonwealth be driven to the constant practice of compulsorily acquiring land from a State when we can negotiate in the case of private individuals?


Senator Drake - Why could we not state in the notification that the land is acquired by agreement?


Senator KEATING - Even then we should be adding one step to the process of acquisition, and, so far as the Commonwealth is concerned, we should be also placing ourselves in a position that would very likely hereafter be seriously misunderstood. Because it might be said, in the case of some State, that inevery instance every inch of ground acquired from the State had been acquired by compulsory purchase. Who could dispute it? It might also be said that the Commonwealth had the alternative of negotiation. Honorable senators must see that the clause is aimed at what we all desire,namely, that in all these transactions the utmost harmony shall prevail between the Commonwealth and the State whose land is acquired.







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