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Wednesday, 25 July 1906


Senator MILLEN (New South Wales) . - Senator Pearce arid others who have spoken in a similar strain, insist that if we were to adopt the amendment, we should necessarily cast overboard certain powers which are conferred upon the Parliament by the Constitution. We should do nothing of the kind. The Constitution gives the Commonwealth ample power to resume any land it may require for the purposes for which it was established'. No Act of this Parliament could take away that power.


Senator Pearce - What becomes of the force of Senator Mulcahy's argument, then ?


Senator MILLEN - I am surprised that Senator Pearce has not observed that Senator Mulcahy does not say by his amendment that the Commonwealth is not to have the absolute right to take any piece of land which, it may require. What he says is that land shall not be taken by an act of administration, but that the Government shall bring down a special Bill and ask for the sanction of Parliament in which Senator Pearce has so much confidence.


Senator Pearce - What a splendid proposition ! If the Government should want to resume a piece of land they could not take any step until Parliament meets.


Senator MILLEN - In this Bill we have been invited to place in the hands of the Government full administrative power to resume the particular lands which Senator Mulcahy seeks to exclude from its operation, an'd he proposes that such lands may only be compulsorily resumed by the Commonwealth under the authority of a special

Bill. What becomes, then, of the argument we have heard here not once, but a dozen times, that we are asked to throw overboard a power which the Constitution, confers upon the Parliament, or that weare seeking in some way to place the States or other authorities in a higher position than that of the Commonwealth ? So long as the Constitution remains unaltered, theCommonwealth must be paramount.


Senator Pearce - But the honorable senator admits that if the amendment werecarried, a cricket club could stop any administrative action.


Senator Trenwith - Still, the honorablesenator would put the Commonwealth inhobbles.


Senator MILLEN - I would only put the Ministers in hobbles.


Senator Pearce - They represent the Commonwealth for the time being.


Senator MILLEN - Has the honorable senator such ample confidence in the Administration as he appears to suggest? Let me remind the Committee of a few voteswhich have been cast here quite recently. Had the honorable senator ample confidence in the Administration with regard to bringing the Papua Act into force and appointing a Lieutenant-Governor?


Senator Pearce - During a recess we must all have confidence in the Government.


Senator MILLEN - On that occasion the honorable senator voted in a way which showed that he had not an atom of the confidence about which he has talked so muchtoday.


Senator Pearce - I have a discretionary confidence.


Senator MILLEN - How did the honorable senator vote not long ago on a proposition relating to the appointment of a HighCommissioner? Did he show his ample confidence in the Administration of the day then? No; he showed that he was notprepared to trust them to make a single appointment.


Senator Pearce - But the honorable senator did.


Senator MILLEN - Of course I did. I voted against the proposition because I am a believer in the doctrine of responsiblegovernment. It is not a correct representation of the case for the honorable senator to say that if the amendment Were carried, it would necessarily deprive the Parliament of any power which it now enjoys under the Constitution. It would still have that power to exercise whenever it liked. It could authorize the resumption of land, whether the amendment were carried or not. So far as final power was concerned, it would be in exactly the same position as if the Bill were passed in its entirety. The objection which I take to the the proposal is this. It will be within the memory of honorable senators that when, the second reading debate was in progress it was urged with considerable force, and at some length, by Senator Symon that it would have been very much better to make this a Bill simply providing machinery for the resumption of land for public purposes, but not giving the power to resume. He urged that the resumption power should be exercised in each particular case by means of a special Bill. I should have been very pleased if the Minister had seen fit to adopt that suggestion, and to recast the measure, bringing down a proposal containing machinery -clauses only. When an act of resumption became necessary in any particular case a special Bill could have been introduced. But that suggestion has not been accepted. I understand that the Government does not "intend to adopt it. Apparently the Senate -does not desire it, because it was not supported, except by a few honorable senators -on this side of the chamber. Therefore, having in one Bill both machinery for the resumption of land and power for resuming it, and the Senate having adopted the >two principles by clauses which have been passed, it seems to me that it would not "be wise to make a,special exception in one particular case. And that is what we are mow asked to do. Senator Mulcahy asks us to provide that when it is desired to resume a portion of a public reserve a special Act of Parliament shall be passed. That is my objection to his amendment. I "believe that we are making a mistake in having the machinery and the powers provided for in one measure. But the Committee having accepted the proposal of the Government in this respect, it seems to me that we should be inconsistent in adopting an amendment which would differentiate between lands held by trustees - it mav be the trustees of a cricket club or a national park - and lands held by any one else, or for any other purpose. If there is to be any difference at all in our treatment of -owners of land, that difference ought to be with respect to Crown land and the land of individuals. But we do not propose to -differentiate between the States and private owners. If we are going to treat a State

Government as we treat a private owner, there is no reason why we should make a difference with respect to trustees. If the amendment were on solid ground at all, it would provide that all States land should be dealt with by a separate measure. But Senator Mulcahy proposes to allow the Commonwealth to take any portion of the lands of a State. He accepts the principle that there should be no exception in that respect. But now he seeks to make an exception in the case of lands controlled by trustees for public purposes. It seems to me to be somewhat like straining at a gnat and swallowing a camel to give power to the Commonwealth to resume States land, and at the same time refuse power to the Commonwealth to take a cricket pitch.


Senator Best - That is not the point. Senator Mulcahy proposes to make an exception in the case of recreation reserves.


Senator MILLEN - If the Commonwealth Government has power to take all the Crown land which it requires from New South Wales, why say that it shall not have the power to take an acre of the National Park? It seems to me that, having accepted the principle that machinery and power to resume should be included in the one measure, and having further agreed to give the Commonwealth Government full power to resume States lands, there is no logic in saying that the Commonwealth Government shall not have a similar power to take lands controlled by local bodies. For that reason I shall vote against the amendment.

Senator Lt.-Col.GOULD (New South Wales) [8.6J. - It seems to me that Senator Millen has failed to realize the difference between "the lands -which are ordinarily denominated Crown lands and lands which are dedicated for a specific and special purpose in the interests of the people of a State. There is an immense difference, to my mind. While it is perfectly true that in this Bill we contemplate allowing the Commonwealth Government to resume, by compulsory appropriation, any Crown land that it sees fit, yet we know that the bulk of the Crown lands in every State are what are known as waste lands. That is to say, they are lands that are not being used for any specific purpose. This amendment is only intended to meet a case in which a State has set apart specific lands for the purpose of recreation or health for the benefit of the people of a State. I cannot, for the life of me, see why the views expressed by Senator Millen in the early portion of his speech, should have caused so much disturbance in "the mind of Senator Pearce, considering that he now tells us that he proposes to vote against the amendment. I contend that the case in favour of Senator Mulcahy's amendment is a very strong one. I admit at once that some difficulty may arise in connexion with the wording of the amendment. It is certainly open to exception as to the party with whom the Commonwealth is to make an agreement. Has the agreement to be made, say, with the trustees of a cricket pitch? Has the Commonwealth Government to say to the trustees, " We should like this land, and we know that we cannot obtain it without your consent?"


Senator Best - The Government has to do that with every other owner.


Senator Lt Col GOULD .- With every other owner the Government has the right of compulsory resumption. It can say to the private owner, " We covet this vineyard of yours ; cannot we make some arrangement about it ?" The owner may say, " I am not going to part with it." Then the Commonwealth Government can say, " It does not matter whether you like to part with' it or not, we are going to take it, and if we cannot get it by arrangement, we will take it compulsorily." I do not want the Government to be put in that position in negotiating for the acquisition of land which has been dedicated for public purposes. I think that it would be a fair thing to say in the amendment that nothing in the Bill shall authorize the acquisition by the Commonwealth otherwise than with the consent of the State, of any land which has been dedicated or reserved.


Senator Mulcahy - I will accept that suggestion.


Senator Lt Col GOULD .- Then it would be necessary to obtain the consent of the State. If the people concerned did not see fit to agree to the sale, the State Government would have power to resume compulsorily. But if the State Government said, "We will not give our consent " the Commonwealth Government would have to deal with the matter specially and specifically, by an Act of Parliament.


Senator Trenwith - Unless we embodyin this measure power to compel a State

Government to abrogate a dedication, the Commonwealth will have to do it by Act of Parliament.


Senator Lt Col GOULD - Assuming that that contention is correct, the State Parliament might say, " We are satisfied that it would be a reasonable thing for the Commonwealth Government to acquire this land," and the Commonwealth would then be entitled, if it were necessary, to acquire it by compulsory resumption - that is to say, if the land were so dedicated that the. State Parliament could not abrogate the dedication without an Act of. Parliament.


Senator Trenwith - This amendment would necessitate an Act of the Federal Parliament.


Senator Lt Col GOULD .- Yes; in certain extreme cases. Take a case in point. I believe that . the Defence Department is very anxious to obtain a range for artillery practice. It will require, probably, six or eight miles . of country to make the range safe. If a stretch of eight miles, together with a. proportionate width, were taken out of the National. Park, Sydney, it would deprive the public of an enormous slice of that territory. But we know that there is a great quantity of Crown land - it may be a little further away - which it might be more convenient for the people of New South Wales that the Commonwealth Government should acquire. I do not assume that the Commonwealth Government wishes to do anything that is unreasonable, but, at the same time, I do not propose to rut it in the power of the Government to take land which it is undesirable it should take, having, in view the interests of a State. I consider it to bewise to safeguard those interests as far as we can, having due regard to the welfare of the. Commonwealth as a whole. I trust that the Committee will see that there is some merit in Senator Mulcahy's amendment, and will vote for it. If objection istaken to the drafting, it will be a very simple matter to recommit the clause afterwards, in order to put it into proper form. Personally, I think that the terms of theamendment are open to objection. But the principle is sound, and if a little consideration were given to it bv the Parliamentary draftsman, he would be able to put it into proper shane. I ask honorable senators not to be led away by objections to the wording of the amendment, but to> regard it as a matter of principle bv meansof which we can safeguard States interests- and prevent any possibility of friction and collision occurring between the States and the Commonwealth.







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