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Wednesday, 25 July 1906


Senator MILLEN (New South Wales) . - It is not inappropriate to mention a matter which I brought up on the definition clause, because the same principle is involved. Judging from the last words of Senator Best, his object in directing attention to a weakness in this and subsequent clauses is to point out that there is no machinery by which compensation money can be distributed in equitable proportion among the holders of various interests in land acquired. That is exactly the position I raised in regard to conditional purchasers, conditional lessees, and the holders of other tenures in New South Wales. I have not yet been, able to discover in the Bill any proper provision by which the interests of the States of New South Wales and the interests of those to whom it has conditionally sold land! can be determined. Nor can I discover that there is any machinery by which compensation money can be distributed between them. It is possible that there are other clauses in which I can submit an amendment, but, still, I suggest to Senator Keating whether, if there is any force in the remarks concerning this clause, clause 8 will not also require consideration if it be deemed desirable to alter the definition clause later on.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. GOULD(New South Wales) [4.36]. - I am very glad that I referred to this clause, because the remarks of Senator Best have thrown a good deal of light upon what we are enacting. The Government say, " Do not throw any obstacle in the way of getting a transfer completed." But there is such a thing as placing too much power in the hands of a Government at the expense of persons who are primarily interested in property. While we should be willing to give every facility we can to the Government where it is necessary to acquire land, we should also take care that . no opportunity is afforded by our legislation to persons to defraud others of what they are entitled to. It has been pointed out that the empowering of tenants in tail or for life to dispose of property, is a very serious matter, especially when coupled with the right to receive the purchase money. I do not object to making the machinery of the law reasonably smooth and easy, so long as the interests of owners of land are fully provided' for. But that, I think, has not been done here. The Minister has stated that the clause has been taken from the Imperial' Act. Paragraph i of the Bill empowers a trustee or feoffee in trust to sell or convey. But according to section 4 of the present Act, it is only those persons who hold " in trust for charitable or other purposes" who can exercise this right. I wish to know why it is necessary to extend the power so as to meet cases where persons are holding land on private trusts. Why should we give power to these persons to join in and sell instead of leaving it to the Government to adopt some other course?


Senator Keating - In paragraph i we do not extend the provision. The words, ' for charitable or other purposes " are not necessary.


Senator Lt Col GOULD .- No doubt, from the Minister's stand-point, they are not necessary, but the provision in the present Act relates to - all trustees or feoffees in trust for charitable or other purposes.

The words "Other purposes" do not extend the power to an unlimited extent.


Senator Keating - They go beyond the charitable genus.


Senator Lt Col GOULD .- I feel certain that the Minister will find that the words have been held to be words of limitation, and limitation to a purpose of a charitable character. Paragraph i of clause 8, however, gives the right to sell and convey land toa - lessee for life, or for life and years, or for years, or for any less interest.

Suppose that a man had a property leased to him for a period of three or five years. Under this provision he would have the power of entering into negotiation, and fixing the purchase money for the fee-simple of the land. By a subsequent clause he could receive the money, and the owner would have to get it out of him as best he could. Surely the Minister must see that a lessee for life, or for life and years, or for any less interest should not have the power to convey the fee-simple ! He might be allowed to deal with his life interest, whatever it was, leaving it to the owner of the land to join in with regard to the remainder.


Senator Keating - I think that in every State Statute and in the English Act there is a corresponding power for a lessee for life to convey the legal estate.


Senator Lt Col GOULD .- But this provision relating to a lessee for years carries the principle still further.


Senator Keating - Yes.


Senator Lt Col GOULD .- It is well that the Committee should pause before it gives such drastic powers in a Bill of this character. It would be a different thing if it wereonly providing that these persons could sell and convey their interest in any land, whatever it might be.


Senator Keating - According to the English Act of 1845. amongst others em powered to sell, convey, or release are persons who hold, subjectto any lease for life, or for life and years, or for years, or for any less interest.







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