Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 25 July 1906

Senator DRAKE (Queensland) .- I think I liked best the amendment first submitted by Senator Mulcahy ; but, as has been suggested, if we agree as to the principle, there should be no difficulty in putting the amendment into the right shape. We should never 'forget that it is impossible for this Parliament to divest itself of any power conferred on it by the Constitution ; and I look on this proposal as in the nature of a self-denying ordinance. Presuming the amendment to be carried, the Commonwealth Executive will have no power to acquire lands that have been dedicated to the public for health or recreation except by agreement. This is not a matter, as some honorable senators seem to think, of a conflict between the Commonwealth powers and the States powers; it is npt a case in which the Commonwealth seeks to take certain powers in order to diminish the powers of the States, or vice versa. The power of a State is derived from its Constitution, and will not be altered by any action we may take. Under the State

Constitution, a State Government has power to resume any land dedicated to the use of the public. In the case of ordinary reserves, it has the power to do that by Executive action. In other cases, and even in the case of private property, it exercises that power under an Act of Parliament. In one way or another a State Government has always the power to resume lands in the State dedicated for public purposes. Our Constitution gives us the same right, and the proposal now made is that, until this measure is repealed by this Parliament, we shall not authorize, the Commonwealth Executive to resume such, land.

Senator Trenwith - It is a limitation.

Senator Millen - It is not a limitation of our power, but of the power proposed to be conferred on our Executive.

Senator DRAKE - That is so. The power always remains in this Parliament to act up to the limit defined by the Constitution, but what is proposed is that we shall say that until this measure is repealed we will not authorize the Executive of the Commonwealth to resume land dedicated to the public for purposes of health and recreation. The reason why I am inclined to favour that is that in the State of Queensland - and I suppose the same thing holds good in other States - there has been a continual tendency to appropriate these reserves. We have one reserve - Victoria Park, close to Brisbane - which has been pecked at all round.

Senator Trenwith - By the Federal Parliament?

Senator DRAKE - No; by the State Government. Portions of the park have been appropriated for various purposes, until there is comparatively little of it left.

Senator Trenwith - That is a reason why we should not give the States any power in this matter at all.

Senator DRAKE - It is not a question of giving to or withholding from the States any power whatever. No matter what we do, we shall leave the States, in this connexion, exactly im the same position, and they will be able under their Constitutions to resume the whole or any portion of these parks for their own purposes. I am desirous that we shall not give the Commonwealth Government the power to do the same thing. If we do it will lead to the quicker resumption of these lands, because, if the Commonwealth Government takes a portion of a public reserve for public purposes, the State Government will be encouraged to do the same thing. They will say, " If the Commonwealth Government can take five acres of our park for one purpose, why should we not take ten acres for some other purpose ?" - By agreeing to the amendment we shall be protecting lands dedicated to the public by putting two bars instead of one in the way of their resumption. Senator Mulcahy proposes that, if the 'Commonwealth requires a piece of land that has been dedicated, they must ask the State Government to resume it for them. They must make terms with the State for it. If the State Government is not agreeable, and the resumption of the land is absolutely necessary, the Commonwealth Government is then thrown back upon the powers vested in it under the Constitution.

Senator Best - That was not Senator Mulcahy's original amendment, which related only to Crown lands.

Senator DRAKE - At all events. Senator Mulcahy's intention is to deal with reserves dedicated to the public for health and recreation.

Senator Best - That is the last amendment.

Senator DRAKE - The last amendment speaks of an agreement being made with trustees. It is suggested that, if the land is held by trustees, it mav be necessary that an agreement should be made with them. That, I think, would be almost impossible. I feel somewhat strongly on this question of the preservation of public reserves, because I have known them to be encroached upon to such an extent that I should be prepared to support almost any provision which would throw additional difficulties in the way. I think it was Senator Pearce who referred to the advantage which it might be to the Commonwealth to be able to resume these lands for defence purposes. Surely section 69 of the Defence Act is sufficient in the circumstances. It provides that -

The Governor-General may give a general or particular authority to the Defence Force, or any part thereof,, to enter upon and use any Crown lands of the Commonwealth or of any State for drill, training, manoeuvres, or other naval or military purposes.

Senator Pearce - Would that override this provision ?

Senator DRAKE - Certainly.

Senator Keating - That is only for temporary occupation. It would not enable us to acquire, a site for a fort or a magazine.

Senator DRAKE - Certainly not ; but we are dealing with a matter of urgency, and is it possible to imagine that the acquisition of land for the purpose of a fort would be so urgent a matter that it could not wait until the Federal Parliament had assembled ?

Senator Keating - Undoubtedly it is.

Senator DRAKE - Honorable senators must see that a work of that kind is an undertaking which might take years to complete.

Senator Trenwith - It might be all the more necessary that we should secure the land at once.

Senator DRAKE - The Defence Act gives all the necessary authority for acquiring or using Crown lands for purposes of defence. If land is required for a permanent purpose, such as the erection of a fort, surely the Government would submit the matter to Parliament; that is to say, if the ordinary means of arrangement with the State Government concerned for it's acquisition should fail.

Senator Fraser - Would the State Government ever refuse?

Senator Keating - It is not a: question of the State.

Senator DRAKE - I do not see what other question there is. A State Government undoubtedly has power under the State Constitution to resume any land, even though it should be in private hands. I should be inclined to think that the only purpose we might seriously consider to-night is the acquisition of land for rifle ranges. I think that the interest of the public to whom these spaces have been dedicated should be the first consideration. I am strongly of the opinion that in these matters the State Government should be assumed to know more than does the Commonwealth Government about the requirements of the public and the desirability of resuming public land in any particular place. The Minister of Defence is aware that a little time ago in Queensland some question arose with regard to the resumption of land for a rifle range, and there were conflicting interests connected with the proposal. -

Senator Playford - That was not dedicated land nor Crown land.

Senator DRAKE - A similar instance might occur in the case of lands dedicated to the public. I think that the Commonwealth Executive might be glad to be rid of the responsibility of having to resume land dedicated to the public, and might consider themselves fortunate in being able to throw the responsibility for these resumptions upon the States Governments. Senator Trenwith. - It is not a question of what Ministers would like, but of what is best for the Commonwealth.

Senator DRAKE - It is certainly best for the Commonwealth that the Commonmon wealth Government should continue to live in peace and harmony with the Governments of the States.

Suggest corrections