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Thursday, 9 August 1906


Senator BEST (Victoria) .- There can be no doubt that the amendment omits to some extent what certainly was offensive in the clause as it stood. The main objection I took to the clause as it stood was that it enacted direct legislation by the Commonwealth with respect to what the Governor of a State should do. The amendment now submitted carries out in spirit, and almost completely, the terms of the amendment I proposed. Of course, my amendment was drawn on the floor of the Senate, and it could not be expected that it would be expressed in the precise language in which, after thoughtful consideration, it might have been clothed. I regard as completely unnecessary, and still take objection to, the words , in the clause as now submitted - " and notwithstanding anything, in a law of the State."


Senator Dobson - I understand that the Crown law officers of the State desire to have those words included.


Senator Keating - I am afraid that, unless 'we include some phrase of the kind, they will not consider the provision strong enough.


Senator BEST - The Minister, as a lawyer, will not contend that those words are necessary.


Senator Playford - Some lawyers do.


Senator BEST - No. Some lawyers did contend that they were necessary, if the form in which the clause, as at first submitted was to be adhered to. But I do not think that any one can validly suggest that it: is necessary to retain these words in the form in which the provision is now expressed. When the several States surrendered to us the various powers which are now embodied in the Constitution, and enabled us to acquire land, what was meant was that we should be enabled to acquire that land free from anl encumbrances. That is the meaning, of the term ira the Constitution - that we are empowered to take land free from all encumbrances, or any lesser estate, as we may think proper. Consequently, a clause of this character, which provides that any instrument taken by us shall validly and completely vest property in the Commonwealth, is merely an exercise of our powers under the Constitution. In the circumstances, when we say that land shall vest by force of this Act in the Commonwealth according to the tenor of the instrument or assurance executed by the Governor of a State, that is all that is necessary, because that in itself implies that we have exercised the full powers given us by the Constitution, and where the exercise of that power is inconsistent with the laws of a State, we know that the law of the 'Commonwealth must necessarily prevail. That is implied not only in the sub-section of section 51 of the Constitution, dealing with the acquisition of land by the Commonwealth,, but it is also directly stated in section J09. If the words " and notwithstanding anything in a law of the State" are left out, the proposed clause will be less offensive. I believe that they are merely surplusage, and I therefore move -

That the words " and notwithstanding anything in the law of the State," be left out.


Senator Sir Josiah Symon - What about the words " bv force of this Act " ?


Senator BEST - I do not think that they are necessary ; but if the Minister thinks that they are of any value I have no objection to their retention.


Senator Keating - I do think them of value.


Senator BEST - I think it unwise to retain the words " and notwithstanding anything contained in a law of the State."


Senator Keating - It is only to show that this legislation operates independently of them.


Senator BEST - But that is not necessary.


Senator Keating - The honorable and learned senator is aware of what I have said so many times.


Senator BEST - All in relation to the existing law.


Senator Keating - The same objection will be raised in connexion with this law.


Senator Guthrie - Does Senator Best not desire that we should make our intention plain? '


Senator BEST - Undoubtedly I do; but I say that the words I have objected to aw unnecessary, and the Minister will not con. tend that they are necessary.


Senator Drake - Are we going to do this in every case?


Senator Lt Colonel Sir ALBERT GOULD (NEW SOUTH WALES) -Col. GOULD (New South Wales) [6.25J. - I have practically the same objection to the proposed new clause that I had to clause 6 as originally introduced. The clause as it stood originally read as follows : -

The Governor of a State, acting with the advice of the Executive Council thereof may (by force of this Act, and notwithstanding anything to the contrary in the law of any State) sell or lease to the Commonwealth any Crown land of the State.

We know that under the Constitution the Commonwealth Parliament has power in any Act that it may see fit to pass to acquire land bv compulsory process. That would cover all reservations usually made. In the clause as now submitted, we are asked to say that the Governor of a State may agree to sell land to the Commonwealth, and that upon the execution of the conveyance the whole estate in the land shall vest in the Commonwealth, notwithstanding the fact that it may be in direct contravention of the laws of the State. A State Parliament may pass a law to provide that certain land shall be sold subject to certain reservations, and if the Commonwealth should require that land free from all reservations, the proper course to adopt would be to acquire the land by compulsory process, and not to attempt by means of an agreement between the State and Commonwealth Governments to over-ride a law dealing with the alienation of land passed by the Parliament of the State. We have the necessary power under the Constitution, and we could exercise it by the compulsory acquisition of such land. The

Commonwealth would lose nothingby adopt ing that course, whilst the States Governments would not be called upon to disregard the laws they are sworn to uphold and maintain. It is perfectly true that where the Commonwealth law is in conflict with a State law, the Commonwealth law must prevail, but we should infringe States rights and interfere with States legislation only where it is absolutely necessary to do so. It is not absolutely necessary in the case under notice, because the compulsory provisions of the Bill are quite sufficient for the purpose.

Sitting suspended from 6.30 to 7.4.5 p.m.







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