Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 2 November 1910


Senator ST LEDGER (Queensland) . - An important constitutional question may arise in connexion with this clause. It is to be presumed that the Vice-President of the Executive Council is in constant touch with the Attorney-General, and he should be furnished with information when any constitutional questions arise. The VicePresident of the Executive Council should give some explanation of the way in which this clause will operate. I should like him to say what will happen where, under a State law, the Crown has a first lien upon the land? Such cases occur over and over again.


Senator McGregor - Who is the Crown ?


Senator ST LEDGER - That is just the constitutional point I raise.


Senator McGregor - The top Crown is the King.


Senator ST LEDGER - There cannot be any such thing as a top or bottom Crown. Evidently the honorable senator has not consulted the Attorney-General on this important point. Suppose the Crown, as represented by a State authority, registers its claim against land, and has under the law of the State priority over all encumbrances upon the land, how is the Crown, as represented by the Commonwealth authority, to enforce its claim under this clause?


Senator McGregor - I do not need to consult the Attorney-General on so simple a question.


Senator ST LEDGER - The honorable senator's mind is either so narrow that he cannot realize the importance of the point, or so gigantic that he is able to grasp it without any explanation whatever. I am assuming that he possesses an ordinary mind, and I should like to know whether he contends that the Crown, as represented' by the Commonwealth authority, can make a claim which will be superior to a claim made by the Crown as represented by a State authority. If he does, I should like to know when and where such a doctrine was laid down in any of the British Dominions? The Crown is expressly mentioned as having certain rights and privileges under the Constitutions of all of the States of Australia, and I should like to know by what interpretation of the State and Commonwealth Constitutions it is claimed that the Crown as represented by the Commonwealth authority shall have priority over the Crown as represented by a State authority in a matter in connexion with which, under the Constitution of the State, the Crown is given a prior claim?


Senator Rae - Does not the Constitution say that where State and Federal laws conflict the Federal laws shall prevail ?


Senator ST LEDGER - The Constitution does not say that where the Crown makes a claim as represented by the Commonwealth authority it is superior to a claim made by the Crown as represented by a State authority.


Senator Lynch - Would the honorable senator allow a claim by a Roads Board to take priority over a claim by the Commonwealth ?


Senator ST LEDGER - I do not understand the relevance of the interjection. What claim has the Commonwealth over roads, except it be for the purpose of using them for the transport of mails, and so on ?


Senator Lynch - The Commonwealth could sell land to satisfy a claim.


Senator ST LEDGER - We have again a startling assertion made by a constitutional authority on the other side, that if the Commonwealth makes a claim against the roads of a State it can enforce that claim as against the State authority. The question I have raised was discussed in another place for hours, but the Vice-President of the Executive Council submits this clause without any explanation, and without any warning to the Committee of the possible conflict which may arise under it between the Crown as represented by the Commonwealth and the Crown as represented by the States authorities. The cases decided so far, though I do not say they are identical or analogous with cases which might arise under this clause, show that the Crown as represented by a State authority has all its rights unimpaired.


Senator Lynch - According to that doctrine the Commonwealth authorities would have a very poor show.


Senator ST LEDGER - Not at all. Both Commonwealth and States exercise sovereign jurisdiction. Where the jurisdiction is sovereign and exclusive the Crown in each is paramount. The Crown under a State Act does not relinquish its rights in deference to a claim asserted by the Crown as represented by the Commonwealth authority.


Senator Rae - If a municipal or shire council has power to sell land, the honorable senator will not contend that the authority of the State would not prevail against that of the municipal or shire councils?


Senator ST LEDGER - Senator Raeshould know that municipal and shire councils exercise only such powers as the Crown confers upon them, and the powers of the Crown as such are never delegated to a local authority. The honorable senator has never heard of a municipality claiming as the Crown, but he must often have heard of a State as the Crown asserting a claim against individuals. The titles of numberless cases show that the powers of the Crown, as represented by the authority of a State, are recognised. Every one familiar with land legislation in the States must know that there are many provisions giving the Crown, as represented by the State authority, priority over every encumbrance to inforce Crown claims against Crown lessees. The Vice-President of the Executive Council has given the Committee 110 indication that the difficulty I mentioned can be constitutionally overcome.


Senator McGregor - I am not out for " stone- walling. "


Senator ST LEDGER - But surely we are entitled to an explanation from the honorable senator.


Senator McGregor - I shall give it when the honorable senator sits down.


Senator ST LEDGER - Squeezing blood out of a stone is an easy operation compared to the difficulty of getting any explanation from the honorable senator. The Government apparently contend that every time the Crown, as represented by the Commonwealth authority, asserts a claim, it will be recognised as superior to any claim asserted by the Crown under any other form of authority.







Suggest corrections