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Tuesday, 6 November 1973
Page: 1552


Senator WRIGHT (Tasmania) - It is really an insult for honourable senators to have to listen to such an intelligent spate of garbage as we have just heard from a person who could not even manage the notes that had been written for him and which he purported to read so incoherently. It is also an insult to have hurled across the chamber the suggestion the the Opposition is prepared to fleece the taxpayers of" the country. The Opposition, I should have thought by its record, uniformly has shown a greater concern for the taxpayers of this country than ever did the Government. The Government has brought in a Budget of inordinate extortion from the people after giving the impression that it would not raise taxes. The Government brought in indirect taxes and other taxes to the extent of increasing income taxes with the automatic application of its schedules by over $ 1,000m, and with other taxes bringing a total increment to something of the order of $ 1,500m. So the taunt that we have no regard for the interest of the taxpayer is an entirely prejudiced and pernicious one.

A party that did not oppose this Bill would be wanting in principle, and a party that would initiate a Bill of this sort should be thoroughly condemned, especially when that party has spokesmen who parade through the country the idea that people 's rights should be preserved by a Bill of Rights and a reform of administrative processes, and that individual rights that are arbitrarily invaded should be recompensed. We hear that sort of thing vaunted by Senator

Murphy day after day. Yet this Bill comes forward as a direct subversion firstly of the Constitution which as a general rule requires that property expropriated for public purposes be compensated for on just terms. That is the principle that the Opposition insists upon in opposing this Bill. It is simply a proposition that a person whose property is acquired by a State or the Commonwealth for public purposes should receive compensation in just terms. Just terms include the value of the land at the date of acquisition, the damage that has been done to the owner by any severance and the enhancement on one hand or depreciation on the other in value of the interest of the claimant at the date of acquisition in other land adjoining or severed from the land acquired, taking into account both the enhancement and deterioration of adjoining property. But the Constitution did not provide that in relation to land in the Australian Capital Territory acquisition should be upon just terms. Therefore we have this disreputable manoeuvre whereby we have a specific Bill designed to take advantage of that situation and to create special legislation for appropriation of some freehold property in this Territory. I emphasise the word some' because we have the remarkable situation that this Bill is expressed to apply to land in the Australian Capital Territory- I omit other words -other than land in the Oaks Estate, the village of Hall or the village of Tharwa.


Senator Webster - There are some other interests there.


Senator WRIGHT - It has been suggested to me that there are some other interests there. I do not know what they are. But we all know that there are Government interests both in and around this Territory that need to be strictly supervised. So the Government seeks to invade the principle of just terms in a special case in relation to the Territory except Oaks Estate, the village of Hall and the village of Tharwa.

We had garbled nonsense from Senator O 'Byrne who referred to an original rule that rural land would be taken at its rural value. If that had been maintained as the rule upon which people should buy and sell since the establishment of this Territory, well and good. But the rule was altered and the lands acquisition legislation prescribed the rule at least since 1955 when the whole land acquisition was revised in view of invasions that had been made on the principle of just terms in the post-war period when this was an active issue and the Labor Government of New South Wales and the Chifley Government had endeavoured to expropriate land for soldier settlement and other purposes at unreal values and not on just terms.

So far from this being expounded from the point of view of land developers, I remember a case in Sydney in which Mr Justice Rich had occasion to comment where a man had a lease of a car park for 3 years and the Commonwealth of that day contended that he had no interest in land, he was making a profitable business from it and his lease was limited to 3 years. Mr Justice Rich said: 'You take my house when you do take the prop that doth support my house'. This is a principle that provides just terms without discrimination for whatever interest you have in land or however large may be your value. That is the first principle which these disciples of the Bill of Rights invade. The second is that without blushing at all those people who sat spuriously in Opposition some 8 or 10 years ago when I raised the question of the inequity of invading litigants' rights after they had been before the law courts in the IPEC case- I have not looked to the debates but I can bring them all to mind- held up their hands in horror and said: 'What a monstrous thing it is that the litigant should be deprived of his right to appeal to the Privy Council '. Yet we have been told indirectly that there is a claim before the High Court for $35m on the part of somebody who is said to be a land development company. I know nothing of him. I have never heard of him. I have no knowledge of the claim and I do not know any other person interested in this land. But the principle of freehold land in the Australian Capital Territory is just as much sacrosanct as it was in the IPEC case.

Irrespective of which side of the chair I sit, when I find legislation as scurrilous as this coming in, having confiscated or notified the acquisition of people's land rights, I say that they have their arbitral rights and their right to go to the court for compensation. Here we have a disgraceful, dishonest attempt to undermine the court's determination and to apply a new artificial rule excluding certain considerations from the court's consideration. That to me is retrospective legislation of the most abhorrent kind and the Senate Standing Committee on Regulations and Ordinances through which we supervise subordinate legislation- legislation made outside this Parliament on principles which would condemn this out of hand- ought to be thoroughly ashamed if it ever allowed this to come on the floor of the House and be passed when, if it comes up as subordinate legislation, we condemn it uniformly on a matter of principle for invasion of people's right to have unviolated their access to the courts and to leave the courts to adjudicate.

The last thing I want to say- I make it the last thing because it is not a case on which too much time should be spent- is that having attempted to define the criterion that would be excluded from the court's consideration I just want to say that that piece of draftsmanship- sub-section (3) of section 5- is the most horrible, unintelligible piece of language that has been incorporated into land acquisition law in the post-war period to my knowledge. It defies understanding and has been written by someone who has not got the foggiest idea of the criteria upon which the courts proceed to evaluate land.


Senator Byrne - What are the criteria?


Senator WRIGHT - I am not going to stay to enumerate the criteria. Before the honourable senator came into the debate I had read succinctly from section 23 of the Lands Acquisition Act, which is good enough. The last thing that I put in by way of a sweet postscript to the AttorneyGeneral (Senator Murphy) is that if I were more ignorant and more gullible I would thank him for the grace and favour that he has tended in clause 6 of the Bill, where, having invaded these rights and applied an exceptional formula to specified people, discriminating against them, he is good enough to say:

(   1 ) Where, before the date of commencement of this Act, costs or expenses have been incurred by a person in or for the purposes of proceedings or proposed proceedings before an arbitrator or court for the determination of compensation to the determination of which section 5 applies, the Attorney-General may authorise the payment to that person, in addition to any costs awarded by the arbitrator or court, of such amount, being the whole or a part of the costs or expenses so incurred, as he thinks reasonable having regard to the enactment of this Act after the incurring of the costs or expenses.


Senator Marriott - That is a guilty mind talking.


Senator WRIGHT -Exactly, and for the litigant whose right of action is taken away by a special piece of legislation the conscience has screwed itself to give itself a discrimination: It may recompense costs that have been thrown away and, having been thrown away, have become abortive, having regard to the enactment of this Act, when the litigation or arbitration is halfway through its course. What a miserable indictment of people who pretend to be proponents of bills of rights to protect individuals from administrative discretions and to operate a committee. This, Senator Murphy has told us, is one of the greatest achievements of the Senate. Uniformly, not without regard to party, that committee, on the basis of principle, condemns all subordinate legislation that deprives one of just terms, discriminates as between individuals and denies to a citizen access to a court of law and brings in a Bill with all those scabs upon it.







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