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Tuesday, 6 November 1973
Page: 1546

Senator WITHERS (Western AustraliaLeader of the Opposition) -The Bill under discussion is the Lands Acquisition (Australian Capital Territory) Bill 1973. By it the Government intends to amend the present Lands Acquisition (Australian Capital Territory) Act. I ought to say at the outset that the Opposition is opposed to this Bill for 2 reasons. The first is that if the Bill before the Senate is passed it will apply to the acquisition of land from people in the Australian Capital Territory different criteria from those which apply within the States of the Commonwealth. I will come back to that matter in a moment. The second reason is that this Bill has in it an enormous segment of retrospectivity.

I deal now with the first part of our opposition. As I understand the Australian Constitution, where the Commonwealth Government compulsorily acquires land from any Australian citizen who lives in the States, the Commonwealth shall acquire that land on just terms. The meaning of just terms' has been interpretated by the High Court from time to time. Section 25 of the Lands Acquisition Act spells out certain criteria which the court must take into consideration when dealing with the acquisition of land. I also understand that the criteria, as set out in section 25 of the principal Act, have been held by the High Court to provide ibr just terms. If the Bill is passed it will set out different criteria on which land which is compulsorily acquired is to be assessed by a court of compensation. It is alleged that the provisions of section 51 placitum 31, which requires land to be acquired on just terms, do not apply to Territories under the control of the Commonwealth and that in respect of Territories such as the Australian Capital Territory or the Northern Territory the constitutional guarantees of section 51 do not apply. Because in those 2 Territories the Commonwealth has a plenary power, the normal constitutional guarantees do not run to protect the residents of the Territories.

The Bill attempts to impose completely different criteria from what are normally known as just terms. We in the Opposition believe that the people in the Territories of the Commonwealththe Australian Capital Territory or the Northern Territory- ought to be placed in the same position concerning compensation as the citizens in the 6 original States are placed. No argument has been advanced by the Government why different criteria ought to apply to residents of the Territories from the criteria which apply to residents of the 6 original States. While we cannot give residents of the Territories a constitutional guarantee, we believe that there is an obligation on the Parliament to ensure that a Bill applying to Territories does not set out criteria which are not just terms. Our argument is that if this provision were written into the Act to apply to the States as well as to the Territories it could well be that the High Court would say that the provisions now promoted in the present Bill do not provide for just terms and would rule them to be ultra vires. Therefore the court would fall back on its own assessment of what ought to be just terms. This Bill deals only with land, but section 5 1 placitum 3 1 deals with property. Why should there be different criteria applied? Why ought not 'just terms' be assessed by the court according to the criteria set down in section 25 of the principal Act? It is for that reason that we basically oppose the Bill.

I know that there will be arguments raised as to equity, as to unjust enrichment and all the rest of these things. I say to honourable senators that all those arguments are but red herrings because any person who has his property compulsorily acquired by the Commonwealth Government ought to be paid just terms. Surely we ought to allow the courts, as we have allowed them for many years now, to apply those criteria to the assessment of values which will give just terms to the dispossessed owner. Our opposition is in those simple terms. That is the basic reason why we in the Opposition parties are opposed to the Bill.

I know that there will be large figures bandied about, that perhaps persons will be named and that it will be alleged that they will be receiving some unjust enrichment if this Bill is not passed. But that ought to be a matter for the determination of the courts. As I understand the situation concerning property which has been acquired in the Australian Capital Territory, some of this property was acquired a long time ago in terms of acquisition; some of it was acquired last year, and I think some of it was acquired the year before. I also understand that one person who had his land acquired could not come to terms with the Government as to what ought to be a just price between them, and he issued a writ out of the High Court for the determination of what ought to be his compensation. I understand further that the reason why the claim has not been settled is not that the person whose land was compulsorily acquired has been dilatory but because the High Court, due to the work load and the list before it, has not heard the claim.

Now a writ has been issued under the old Act. The case is due to be heard by the court. Halfway through, in effect, the Government wishes to change the rules on which that land is to be acquired. This reeks of retrospectivity. Any citizen who has his land acquired ought to be paid for it on the terms and conditions set down in statutory form as at the date of acquisition. I do not think it is good enough for any government to seek to change the rules merely because it thinks it may have made a mistake or merely because it thinks that a court on what basically are just terms under section 25 of the principal Act may award the dispossessed owner a large sum of money, a sum which the Commonwealth may think to be unjust. It is not for the Commonwealth to interpose when it is a party as against a litigant. It should not attempt to usurp the functions of the court. I think it is disastrous that a government which is a party to an action wishes to change the ground rules halfway through the action. We in the Senate have heard a lot in recent years about retrospectivity. We have heard a lot about the rule of law and a lot about the rights of the individual. We heard a lot about this when we were in government. One of the first changes which the present Government desires to bring about is a change in the ground rules halfway through an action. That is what the Bill attempts to do.

Once the present outstanding claims have been finalised there will be virtually no more freehold land in the Australian Capital Territory to be compulsorily acquired. All the freehold land which could be compulsorily acquired or even voluntarily acquired has been acquired and was acquired long before this legislation was introduced. I think the last substantial parcels to be acquired were acquired as far back as about the middle of last year. Therefore, why should the present legislation be passed? The only reason which the Government can have for promoting this legislation is that under the legislation by which it acquired the land it thinks some owner might get too much money. If that is not promoting the Government's interests at the expense of the taxpayer, I do not know what is. I do not think it reflects much credit on the Government, which is a party to litigation, to change the Act halfway through the litigation to benefit itself.

I do not think there is much more which can be said about this Bill. It is quite a simple Bill. I have stated all that it attempts to do. We in the Opposition believe that section 25 of the principal Act spells out sufficient criteria to guide the courts in arriving at just and adequate compensation. Some litigant claims an enormous sum. That is only what he claims. Whether he will get it may well be another matter. But why should he not be able to pursue his claim in accordance with the legislation which was in existence at the time his land was acquired? In any event, why should not the citizens of the Australian Capital Territory and, indeed, the citizens of the Northern Territory have the same protection as have the citizens of the 6 States, namely, that if the Commonwealth should compulsorily acquire the property of any citizen the Commonwealth is bound under the Constitution to pay just terms. It is for the courts to work out what are just terms.

I do not claim to have a great knowledge or even much knowledge at all as to how courts of compensation arrive at what is reasonable and adequate compensation, but the courts of this country have worked out over a long period various methods of assessing what is a reasonable amount of compensation to be paid for land which is compulsorily acquired. Section 25 of the Act, as I recall it, says that the courts shall not take into consideration the public purpose for which the land has been acquired. Again I understand that that section has been held by the High Court to provide for payment on just terms. So for the life of me I just cannot see the purpose of this legislation. All of the land which can be acquired has been acquired. It was acquired under the provisions of the previous legislation. It provided that the person from whom the land was acquired ought to be paid in accordance with the legislation in existence at the date of compulsory acquisition. We therefore oppose the Bill.

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