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Wednesday, 22 August 1906


Mr GLYNN (Angas) .- In reference to the point raised by the right honorable member for East Sydney, in connexion with clause 62, I would point out that by clause 57 the Commonwealth is created a corporation for the purposes of this measure. I do not see, therefore, that the suggestion that the States should lease this land can be carried into effect. It will be possible, however, when the Commonwealth does not require land which has been vested in it, to lease it to the States, and the States can then make what arrangements they please with private individuals in regard to it. Clause 57 creates a corporation, to be known as " The Commonwealth of Australia," in which lands acquired by the Commonwealth are to be vested. That being so, it would be difficult to provide that the States may lease such land. I see no objection, however, to the Commonwealth, instead of selling surplus land under clause 63, leasing it or the right to mine, to any one who may be disposed to take it, and the States could make it Crown land by Act of Parliament, if it were not covered by the definition. At any rate, there are ways of getting over the difficulty. With regard to the title originally adopted for the Bill, I think that it was a mistake to term the measure the Eminent Domain Bill. The use of th'at title would not have enlarged the powers of the Commonwealth, while the title itself would have been a misnomer, . since eminent domain in the lands of the country, that is the residual power of sovereignty, remains with the States, and has been given to the Commonwealth by the Constitution for certain purposes only, namely, in regard to the acquisition of land under section 51 of the Constitution, or in connexion with the transfer of properties used for the administration of transferred Departments of Government. It was thought in the Convention that powers of sovereignty would, as a matter of law, belong to the Commonwealth, as they do to the States, if this provision were not inserted, and, it having been inserted, it seems to me to limit, rather than extend, the powers of' the Commonwealth. It is an express provision which is not contained in the American Constitution, under which powers of acquisition are implied, and, of course, limited to the purposes of the powers delegated to the central body. The powers given here are directly prescribed by section 51. The general powers of sovereignty, therefore, belong to the States, so long as they have not been delegated. That is clear from the fact that in America, though the lands are vested in the Commonwealth, that is, in the Federal Government, it has been decided that the powers of sovereignty in relation to eminent domain belong only to it in relation to the territories. The moment a territory becomes a State, the special powers of eminent domain, so far as they are not delegated to the Federal Government, belong to the State.


Mr Reid - Then the title would 'have been a wrong one to use ?


Mr GLYNN - I think that it would have been wrongly applied.


Mr Groom - It is used in the United States in reference to land generally.


Mr GLYNN - That is in reference to the powers of the States.


Mr Groom - And in reference to the powers of the Commonwealth, too.


Mr GLYNN - I consulted Cooley on Constitutional Limitations just before the House met, and found that he draws a strong distinction. He says that the powers of sovereignty of eminent domain do not belong to the Commonwealth of America, that is, to the Federal Government, but belong to the States. They are in the Commonwealth only as a land-owner in relation to a territory. The moment the territory becomes a State, the powers of the Federal Government are exercisable for specific purposes only, which are the particular powers vested by delegation in the Federal Government, and no more. The use of the term eminent domain would, therefore, not have extended the scope of the measure, but would have been somewhat invidious, so far as the States are concerned. That, I suppose, was the chief ground of the objection which was taken to the title elsewhere. The Bill seems to be a consolidation of the existing law for the purpose of getting over a few flaws, some of which were pointed out in 1901, and, as the Minister has explained, to clear up certain points connected with the original drafting. I do not know that the drafting, has been made more clear in some respects.It seems to me that confusion has been introduced. Some of the points which it is now endeavoured to make clear were mentioned in 1901. For instance, opposition has been shown to ther Bill on the ground that it gives power toresume the park lands of the cities of theStates. That objection was taken in 1901. But the present Bill was not framed to meet it. I pointed out in 1901 that the measurethen before us gave power to the Commonwealth to resume the park lands of the States. If the Commonwealth wishes to erect a building for defence purposes, or a post-office, on the park lands of any State it can resume such land under the Act of 1 901. I do not think that that power should have been granted, though, of course, it could be granted. Why should the Commonwealth acquire part of the park lands of our cities? Is it necessary to erect on such land a building for any of the purposes of the Commonwealth Government ?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Has the Commonwealth the right to take lands dedicated by the State for anv purpose?


Mr GLYNN - Yes.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Should we do so?


Mr GLYNN - I do not think so. although, under the Constitution, we have power to legislate for the resumption of such land.


Mr Groom - That power is not likely to be exercised except for some necessary purpose.


Mr Kelly - The Commonwealth wished to erect buildings on the Centennial Park, Sydnev. for military purposes.


Mr GLYNN -The Bill, like the Act of 1901, does not prevent the resumption of park lands, though an attempt was made in the other Chamber to do so.


Mr Groom - It was expressly provided for in the Senate.


Mr GLYNN - I find, by reference to page 5460 of Volume IV. of Hansard, that I mentioned, in 1901, that the park lands which surround Adelaide, and have been dedicated under a State Act, could be acquired by the Commonwealth. But.although that was pointed out at the time, the Government of the day would not assist honorable members to make an amendment in the Bill of1901 to prevent it. A provision has been inserted in this Bill to qualify this power of acquisition, clause 19 providing that, where land is Crown land of a State, dedicated for a public park, or for the recreation or amusement of the public, either House of the Parliament may pass a resolution that the notification shall be void and of no effect, and that then the land shall be deemed not to have been vested in the Commonwealth. That, however, is not very much protection to the States. It simply transfers from the Executive to the Parliament the right to say whether such land shall be acquired by the Commonwealth. I should like to see a provision inserted preventing the acquisition of park lands. Independent of such land, there is other land as suitable, or nearly as suitable, available for the purposes of the Commonwealth. The provision of the law as it stands has given rise to some opposition and a good deal of disquietude, and therefore I should like to see it excised. Regarding the drafting of the measure, it is difficult to speak with, emphasis, because of its technical character ; but I do not know that a glance at its clauses shows that the law has been made much clearer in some respects. For instance, clause 5 says that - "Land" includes any estate or interest in land (legal or equitable), and any easement, right, power, or privilege over, in, or in connexion with land, and also includes Crown land.

Clause 8, however, speaks of -

Any person seised, possessed, or entitled to any land, and goes on to refer to interests which have resulted from the cutting up of the fee-simple into a series of estates coming into existence in succession. Therefore, one may well ask if the words " any person entitled to any land " refer to the possession of any estate in land or to the possession of an estate in fee simple. That there may be some doubt on the matter is, I think, clear from the wording of the Act of 1901, which refers to -

All parties seised or possessed of or entitled to any such land or any estate or interest therein.

A distinction is there drawn between a feesimple and a lesser estate or interest. It was evidently contemplated that persons could dispose only of the interests to which they were entitled, and would be compensated separately for each interest.


Mr Isaacs - Will the honorable and learned member look at section 22 of the Acts Interpretation Act?


Mr GLYNN - The Attorney-General refers me to the definition of " land " contained in the Acts Interpretation Act ; but that does not affect my point, because there is a special definition in this Bill, and there cannot be two definitions for the purposes of one measure. If there were two definitions, and they were in agreement, one would be superfluous, while, if they were not, one would contradict the other. My point is that the meaning of " land," as used in clause 8, is not clear. It may be used to refer to an estate in fee simple or to any lesser estate. There are other provisions in which I think confusion, rather than clarity, is introduced, though these are matters which may best be dealt with in Committee. While the Bill does not alter the existing law, it deals with matters of fundamental importance. I should like to know what the Government intend todo with regard to clause 64, which is as follows: -

Any land which, before the commencement of this Act, has been acquired by the Commonwealth from any State or person, or has by virtue of section eighty-five of the Constitution become vested in the Commonwealth, shall for the purposes of this Act be deemed to have been acquired under this Act, and to be vested in the Commonwealth as if acquired under this Act.

I presume that that means that the Commonwealth could pay, according to the scheme provided by this measure, for properties acquired under section 85 of the Constitution. At an earlier stage in the Bill provision is made for the method of payment. Clause 41 provides -

The compensation payable to a State in respect of any land acquired under this Act may, at the option of the Governor-General, be paid in any of the following modes, that is to say -

(a)   by payment to the State of the amount of the compensation ; or

(b)   by the Commonwealth becoming responsible to the State for its liability for principal and interest in respect of such a part of the public debt of the State as is the actuarial equivalent of a three and one-half per cent, loan of the same currency and of the amount of the compensation.

That deals with the transferred properties. To some extent it is constitutional, and to some extent it is not. It is provided in sub-section 11. of section 85 of the Constitution -

The Commonwealth may acquire any property of the State of any kind used, but not exclusively used, in connexion with the Department ; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land or of an interest in land, taken by the State for public purposes, is ascertained under the law of the State in force at the establishment of the Commonwealth.

Therefore, as regards land not exclusively used in connexion with the Department the valuation must be ascertained as nearly as may be possible under the laws of the State, and, so far as the provision in the Bill is an attempt to override the provisions of the Constitution, it will be ultra vires. As regards property hitherto acquired and not paid for, or to be acquired in the future, the method' of compensation is prescribed by the Bill, and therefore we are really now dealing with matters of big policy. The provision is that the land shall be paid for either in cash or in bonds bearing interest at per cent. Of course that is a very sound principle, but if the clause is to mean anything, we should provide for giving effect to it. That cannot, however, be done without the consent of the States. We cannot take over the States debts except at the rate of so much per head of the population, and, therefore, I do not see how we can apply this provision. Section 105 of the Constitution provides -

The Parliament may take over from the States their public debts as existing at the establishment of the Commonwealth, or a proportion thereof, according to the respective numbers of their people, as shown by the latest statistics of the Commonwealth.

In view of this restriction, I do not know how we are going to work the provision in the Bill. I think it is a pity that the Minister should have brought in a Bill for the consolidation of the law relating to the acquisition of public property without consulting the States, with a view to inducing them to pass the necessary Acts to enable us to take over their debts to an amount sufficient to wipe off, as far as possible, the indebtedness in regard to the transferred properties. There are several other provisions in the Bill which, I think, could better be dealt with in. Committee.

Debate (on motion by Mr. Johnson) adjourned.







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