2nd Parliament · 3rd Session
The Presidenttook the chair at 2.30 p.m., and read prayers.
– I desire to ask the Minister of Defence, without notice, if in this session the Government will submit, for the consideration of Parliament, all the reports of the Tariff Commission presented on or before the 31st August next?
– Replying offhand, I should say that there will be no objection.
– Would the Minister like me to give notice of a question in order that he may be in a position to give a fuller answer to-morrow?
– Yes ; I shall be prepared to answer the question then.
MINISTERS laid upon the talble the following papers : -
Extracts from report by the Secretary for Labour to the Minister for Labour, New Zealand,1903, relating to trusts and anti-trust legislation in the United States and Europe.
Amendment of Public Service regulation 104, Statutory Rules, 1906, No. 51.
Correspondence between the Prime Minister and the Premier of South Australia relative to the transfer of the Northern Territory to the Commonwealth. (Dated 3rd February to 30th July.)
Ordered to be printed.
– I desire to ask the Minister representing the PostmasterGeneral, without notice, first, if the conditions in the contract for the mail service beween Australia and Tasmania are being carried out with regard to the speed of the vessels running between Melbourne and Launceston; second, whether there is any alteration in such conditions in the tenders which are now being called for a new service; and, third, whether he will lay upon the table df the Senate a copy of the conditions for the new contract?
– I understand that the conditions as to speed are being observed. If there are any instances in which the honorable senator thinks that they have not been observed, and he will give me particulars of them, perhaps I could obtain a more specific answer to his question.
– I should say thai they have not been carried out during the whole of this winter.
– What is the speed required under the contract?
– I do not . know that an exact mileage has been arranged. The conditions for the new service have been published in the Gasette. I shall be able to lay a copy of them upon the table, and, if necessary, they can be printed separately.
– Can the Minister say whether there is any alteration in the proposed rate of speed between Melbourne and Launceston?
– I think not; but the conditions, when tabled, will indicate that.
– I desire to ask the Minister of Defence, without notice, whether he has yet received from the Naval Director a report as the result of his recent visit to Great Britain, and, if so, does he propose to lay it before the Senate?
– I have not yet received a report from the Naval Director. When I do, I shall consider it and then make up my mind as to whether it would be wise to lay it before Parliament or not.
– The officers of the Senate cannot distribute any papers unless they have been laid upon the table and printed. Until that is done they have not got the pagers to distribute. I understand from the Clerk that all. papers which have been laid upon the table, and are in print, have been circulated.
– Perhaps, sir, you will be kind enough to indicate what course ought to be pursued, because these documents, although not ordered by the Senate to be printed, are in print. If papers cannot be supplied to members of Parliament unless they are ordered by the Senate to be printed, of course I shall submit another motion; but as the documents are already in print, that does not seem to me to be needful.
– So far as the Senate is concerned, all documents which are laid ‘upon the table and ordered to be printed are distributed. If documents are not laid upon the table, but are merely printed in the Gazette, I do not see how the officers of the Senate can distribute them. Perhaps the Minister of Defence can furnish some information.
– I understand ‘ that whenever any regulations made- under an Act of Parliament are printed in the Gazette, slips are struck off, and that upon making an application, and paying a small fee, any member of Parliament can receive copies of them. The instruction which has been given to the Government Printer is that for everything which goes out of his office, either payment must be made by the Senate or by the members of Parliament concerned.
– Why should members of Parliament have to pay for copies of any regulations?
– I did not know what the exact position was until Senator Henderson gave notice of a motion which will possibly be discussed to-morrow. It relates to some action which was taken by the Printing Committee of the other House, and to which our Printing Committee has taken exception. I took the opportunity of trying to make myself acquainted with the facts of the case. I have been informed that as regards regulations printed by the Government Printer, but not ordered b,y either House to be printed, members of Parliament can get copies of them by making a small payment.
– Is not the Minister supposed to lay all these regulations upon the table of the Senate ?
– It is my intention to suggest to my colleagues that it shall be an instruction to the Government Printer to send a copy of eachregulation, or set of regulations, to every member of Parliament.That I think will meet the case. Honorable senators have the right to call in question the wisdom of any regulations, and to move that a regulation be amended by way of deletion or addition. The least which can be done is, I think, to supply them, without payment of a fee, with copies of regulations as they are issued by the Government Printer.
– Is not the Minister aware that at least a month ago the Senate passed a motion expressing its opinion that the documents referred to should be supplied to members of both Houses ?
– I have written to the Prime Minister with a view to having the order of the Senate carried out. It had escaped my memory for the moment.
Appointment of Lieutenant-Governor
asked the Minister of Defence, upon notice -
Will he inform the Senate -
– The answers to the honorable senator’s questions are as follow : -
In Committee (Consideration resumed from 20th June, vide page 1597):
Clause 6 -
The Governor o£ a State, acting with the advice of the Executive Council thereof, may (by force of this Act, and notwithstanding any. thing to the contrary in the law of any State) sell or lease to the Commonwealth any Crown land of the State which is required for any public purpose, and execute any instrument or assurance for the purpose of granting, conveying, or leasing the land to the Commonwealth.
.- When we reported progress on this Bill on Friday, I had submitted, together with a number of my honorable friends, reasons for the desirableness of re-casting clause 6. I am very loth indeed to bring under the attention of the Committee again, at any length, the points then objected to. I presume that the Minister has had an opportunity to reconsider the matter in the meantime. I certainly thought that he would have attempted to supply some answer to the objections w’hich were then made, and I ventured to hope that he would accept the suggestions, and re-cast the clause. I should like, as shortly as possible, to recapitulate the objections to the clause, as it stands. The first objection to it is that it contains a very undesirable principle which is a d’eparture from what we have hitherto done in the framing of clauses of a similar character. It is attempted to enact a law under which a State shall act in regard to matters which are essentially within the jurisdiction of the State itself. In other words, Ave seek to provide by this clause what the Governor of a State may do under certain circumstances, in spite of what may be the law of the State concerned. The clause uses the words: - the Governor of a State acting with the advice of the Executive Council thereof.
As a preliminary remark, I would mention that that language, in itself, is a little irregular, and somewhat uncomplimentary to the States. It is possible, but extremely improbable, that the Governor of a State, acting with the advice of the Executive Council, will act contrary to the law of the State. I would point out - though not as a verv strong objection - that under the terms o’f the clause it would be quite possible for the Governor of a State, with the advice of the Executive Council, to execute any agreement contemplated by the clause, irrespective of, and, indeed, in spite of the laws of that State; in other words, disregarding the desires and wishes of the Parliament of the State. That I make, as a. preliminary remark, but the essential objection which I flake to the clause - and it is one which has been strongly supported - is that we, as a Commonwealth, are attempting to enact a law under which the Governor of a State is to act. What we havehitherto done under similar circumstances has been to enact that the Governor-General shall have power to enter into an arrangement with the Governor of a State. But here we go further. We turn the provision round, and say that the Governor of a State, acting with the advice of the Executive Council, may do so and so. I say that in principle that is essentially wrong. I ventured on Friday to make certain suggestions by way of amendment, and, in doing so, I sought to meet - and I think I completely met - the objections urged by the Minister in charge of the Bill to alterations of the kind suggested. The objections which the Minister took were these : He argued that it is essential that we should empower the Governor of a State to do certain things. First he urged that the Governor of a State having at present only power to issue a grant in a certain form, that grant might contain certain reservations which might require that the grant should only last for a period of twenty-one years, when the land could be resumed without compensation. In short, the objection was that the Governor of a State might only be able to make a grant subject to certain reservations or encumbrances. That is a very important matter. My answer was, and is, that as the Commonwealth has the undoubted power under the terms of the Constitution to acquire land free of encumbrances, all that it was necessary to do under those circumstances was to enact that upon the notification of the grant in the Government Gazette that notification should have the effect of cancelling anv dedication or reservation to which the land was subjected. No one, least of all the Minister, can say that such a power is not within the jurisdiction of this Parliament, because the Minister himself has inserted in the Bill certain words in regard to land which the Commonwealth is empowered to resume compulsorily.
– Suppose the Commonwealth wanted to take away some right of the public?
– We have power to do it.
– Not land which has been dedicated to the public?
– Yes. And such a power is essential, though of course it has to be exercised with very great care and caution, and with due regard to the public interest. What I contend is that what I. have submitted is a complete answer to that objection of the Minister. He cannot take exception to it, because as a matter of law he admits that it is competent for the Commonwealth to enact such a provision. A further exception which was taken was, as I understood it, that before any land could be sold by mutual arrangement by the Governor in Council of a State it would be necessary to go through certain forms - either to put the land up to public auction or to resort to some such machinery in order to comply with the law of the State. That also would be a valid objection if it could not be completely met. But my answer is that it is not necessary to act in the manner proposed by this Bill for the purpose of overcoming that objection. It is not necessary to adopt the improper principle of legislating as to what the Government of a State may do in order to achieve our end. All that need be done is to sav that upon the publication of the notification in the Government Gazette,or even upon entering into an agreement, the property shall vest free of all encumbrances in the Commonwealth. We as a Commonwealth have power to make that enactment. Consequently I say if it is declared ipso facto that upon entering into the agreement or upon the publication in the Government Gazette the land shall vest in the Commonwealth free of all encumbrances, or, as it may be. subject to the agreement, that will be sufficient.
– Would the honorable senator compulsorily and absolutely take away from the people the rights which they at present enjoy in lands ?
– The Bill itself purports to do so.
– The honorable senator is advocating the same thing.
– I am objecting to the manner in which the Government seek to do it.
– The honorable senator wants to do the same thing by another means.
– It is necessary that the Commonwealth should have power to acquire land, though, of course, the Commonwealth Government will be responsible to Parliament as to how it exercises so delicate a power.
– Suppose the Commonwealth Government wanted to take the Yarra bank?
– It has the power to take it, with compensation, if it is in the interests of the Commonwealth to do so.
– As against the interests of the people of Victoria ?
– That is so. This is one of the specific powers delegated to the Commonwealth. I submit that I have shown, first of all, that it is undesirable to enact a clause in the manner in which clause 6 is framed in this Bill, and that, we are departing from precedent in doing so. On Friday, I instanced what was done in regard to the Meteorology Bill. Our object in passing that measure was the same as it is in this instance - to acquire land by mutual agreement. I pointed out that in that case what we did was to enable the Governor-General - that is to say, our own agent - to enter into arn arrangement with the Governor of a State; and we did not attempt to say how the Governor of the State should attempt to carry out his functions’ and duties. I therefore urge that the objections which I and some of my honorable friends have taken to the clause are sound, and that the reasons which have been given by the Minister for inserting it in this form are insufficient. I think that I have furnished a complete answer, and by the proposed amendment I have suggested a better way. My honorable friend may say in reply, “ Yes, but a similar provision was inserted in the Property for Public Services Acquisition Act, which was passed by this Parliament in the year 1902.” I am not prepared to say that that provision goes anything like so far. Section 5, which provides that in the case of Crown lands purchased under the Act, the GovernorGeneral may grant the land in the name of the King to the Commonwealth, has to be read in conjunction with section 3, which enables the Governor-General to agree with the owners of the land, and with the State in the case of Crown land, for the absolute purchase. These two sections are to toe read together ; and section 5, I submit, provides for what is strictly a Ministerial act. But apart from that, in my opinion, after debate and consideration of the principles to which I have referred, I submit that section 5 as we enacted it iswrong; that is, I think the Senate acted unwisely in enacting the provision in that particular form. And now that we ha’Ve an opportunity of achieving the same end in a less objectionable way it is our duty to do so. Therefore, my suggestion is that,, first of all, we should re-enact section 3 of the Property for Public Purposes Acquisition Act, adding to it an amendment to the effect that upon such agreement and notification thereof in the Gazette, the land shall be vested in the Commonwealth free from all encumbrances.
– Suppose that land has been dedicated to the public for fifty years - would the honorable and learned senator propose to resume it?
– That is the object of the Act.
– Under such a law the Commonwealth might take the Sydney Domain.
– The honorable senator is rather late in the day in raising that objection, because the present law would permit what he instances.
– Not free from encumbrances.
– Pardon me, iti must do so.
– The law has not done so.
– Pardon me, it has.
– Do we not remember the trouble about Dawes Point?
– We already have thepower referred to by the honorable senator ; and I am now suggesting that it should be exercised in a much less offensive way by the amendment I ‘ have foreshadowed. This Senate is supposed to conserve the rights of the States; and I trust we shall always do so as far as possible. It may be suggested that the ‘provision is not at all offensive to the States in its present form. That “may or may not be so; still, the provision creates a precedent and a wrong principle, and we have no right to infringe on the rights and duties of a State in the manner proposed by the Bill. It might be held that it is undesirable, following Acts of a similar’ character since 1845, to simply declare that the land shall’ vest in either the State or the Commonwealth, as the case may be, without ‘st parchment title. Such, however, is the– case according to the present law; at any rate, I can speak of the law of Victoria. But if a parchment title is required by having recourse to the Bill and similar legislation, the simple answer is thata certificate can be given by the Attorney-General that the land has been compulsorily resumed. When that certificate has been issued, a parchment title will be granted by the Commissioner of Titles, or a corresponding officer. What I suggest is completely in conformity with what would take place were land compulsorily resumed. But I desire to make the same principles apply to an agreement in order to avoid what has hitherto been a difficulty, namely, that under certain circumstances land has been compulsorily resumed where it would have been more desirable to have resumed it by mutual agreement.
– Have we any power to take land which has been dedicated to the public by the Imperial Government?
– Certainly ; that is according to the present law of the States, and also of the Commonwealth. The Imperial Parliament, in granting responsible government to Australia, and placing the lands of the country in charge of the various Governments, gave us absolute dominion, and power to legislate in regard to those lands. Senator Guthrie need not be at all apprehensive that we are entering upon any ‘violent innovation ; because we are simply carrying out the laws of the States, and of the Commonwealth. It is suggested that certain minor alterations shall, by this Bill, be made in the law of the Commonwealth. One of the alterations is in an offensive form; and the desire of certain honorable senators and myself is simply to place the provision in a less offensive form, and not to create what I regard as a wrong principle.
– Since this matter was discussed in Committee on Friday, consideration has been given to the suggestion made by Senator Best and other honorable senators who supported him. So far, I have been informed and advised by those who are intimately acquainted with the working of this and similar legislation, that to give effect to the suggestion would be somewhat dangerous, so far as the Commonwealth is concerned. I use the word “ dangerous “ in the sense only that the suggestions would not take us any further than where we stand to-day. We have, of course, under the existing law, power to acquire land, either by mutual agreement or compulsorily. We propose to still exercise that power, whether the owner be a private individual, or the Crown in any particular State. What we do desire - and I think it is a very laudable desire - is that we shall never exercise our compulsory powers, either as against the private individual or the Crown, except in the last resort. Under the provisions of the present law, the Crown law officers in some of the States are of opinion that the Governor of a State, in dealing with the Commonwealth in the disposition of the landsof the State, is absolutely tied and limited by the State laws. I gave, on Friday last, some instances, and showed that in the case of Western Australia, a deed came to hand for execution on the part of the Commonwealth, containing in it a reservation of the right of the State to resume the land at the end of twenty-one years in case certain improvements were not effected. The Commonwealth rightly showed a disinclination to accept a grant, subject to such a reservation ; and the Western Australian Government then, in effect, said - “ As a matter of fact, we do not wish to impose such a reservation, but our, law requires that in all such instances we shall do so; and we cannot treat the Commonwealth Government differently from any other person or persons.” I think honorable senators accept my assurance that this provision is not intended to mean anything in the nature of aggression, or an assertion of high-handed authority on the part of the Commonwealth.
– Up to that stage we are all agreed.
– On Friday last I also instanced the State of New South Wales, where the Government are to some extent tied, in granting land, by conditions which impose the necessity of having the land put up for selection, or subjected to public auction. Those conditions, of course, could not apply to the Commonwealth; but to this the New South Wales Government reply that the Commonwealth’ Act for the acquisition by agreement of property for public purposes is not strong enough - that the local Government are compelled to comply with all the conditions of the local Statutes, and that the Commonwealth ought to exercise their compulsory powers. I have here a letter, which is only a specimen letter, setting out that attitude onthe part of the New South Wales Government, as far back as 1904.
– Nobody disputes that position.
– The following was the letter from Mr. E. W. O’Sullivan, then New South Wales Minister of Lands : -
I have the honour to inform you that the honorable the Attorney-General for New South Wales is of opinion that this State has not the power to alienate this land to the Commonwealth, and to request that the Commonwealth Government take immediate action to complete the purchase by acquiring the land by means of the Property for Public Purposes Acquisition Act 1901, at the valuation practically agreed to, namely, , £32 9s.
As a matter of fact, the State of New South Wales andthe Commonwealth were in agreement as to the sum to be paid, but the former suggested that, under the circumstances, our compulsory powers should be exercised. As I said before, it is desirable that we should exhaust all chances of peaceful negotiation before we resort to our compulsory powers, in the case of either a private individual or the Crown. The amendment suggested by Senator Best is to re-state section 3 of the present Act, and add a paragraph corresponding to the second paragraph of clause 17.
– My suggestion is that we should go a little further, and add the words “ and thereupon the said landshall vest free of encumbrances, or subject to the agreement as the case may be.”
– I would point out that such a provision would simply enable the Governor-General to negotiate with the Governor of a State, and, thereupon, would follow consequences absolutely rigid and fixed.
– That would be precisely the same as if you attempted compulsory resumption.
– Exactly, and that is the reason why we do not want to exercise the compulsory powers until we are forced.
– The Minister must see that one is subject to the terms of agreement, and the other is not.
– If we adopted the suggestion of Senator Best, we should find that the agreement once concluded, results specified in the provision and absolutely hard and fast, would necessarily follow in every instance.
– The Minister does not intend to misrepresent, but he has misunderstood me if he thinks such a thing for a moment.
– If we are going to have an agreement between a State and the Commonwealth, we ought to provide the utmost elasticity, in order that both parties shall be able to come to an agreement fitted to the peculiar or particular circumstances of any individual case.
– Does clause 6 represent the Minister’s idea of elasticity?
– Undoubtedly. Senator Best has not submitted an amendment in form, and I am only dealing with his suggestion as I understand it. When the Commonwealth authority and the State authority come to an agreement, I understand Senator Best to suggest that the question of reservations or anything of that character shall be dealt with by a clause corresponding to the second paragraph of clause 17.
– If that be desired.
– We might acquire land without any reservations, so far as the Commonwealth is concerned, whereas it might be eminently desirable, in the in-‘ terests of all parties, that the State shouldhave its own particular reservations.
– That would be a term of the agreement.
– It might be desired, for instance, to reserve to the State mining rights.
– That is always done in New South Wales.
– The question arises as to how far a reservation on the part of a State authority applies as against a Commonwealth authority in the absence of an agreement. The Commonwealth might desire in some instance only what might be called the surface rights ; but still we wish to have the freehold title, subject to such reservations as any State may agree with the Commonwealth to make, and in those instances it would be undesirable to have a hard and fast rule.
– That would be a term of the agreement.
– As I said before-, Senator Best has submitted no amendment in form, and I am only criticising his suggestion from memory, as I heard it indicated by him on Friday, and re-stated this afternoon. So far as this clause is concerned. I point out to the Committee that its object is simplv to empower the Government of a State - not to direct them, and not to oblige them - whenever they in their wisdom think fit to do so, to dispose of lands of the State to the Commonwealth for public purposes. And that notwithstanding the fact that so far as those lands are concerned, generally, and in the case of alienation to any private individual, they would be subject to some condition which ought not attach to lands acquired for the public purposes of the Commonwealth. We are not obliging the States authorities or commanding them to do certain things in certain circumstances, but are leaving them the most unbounded discretion.
– Does “may” mean “ may “ in this clause?
– Certainly it does not mean that they “must” do these things. I do not think that the Executive Council of a State, notwithstanding the fact that thev would feel legally protected under this Bill, would do anything that might seem to be in contravention of the wishes of the State. I do not think that the Executive Council of a State, with a full sense of the responsibilities they owe to their Parliament and people, would advise the execution of any of the powers conferred under this legislation where thev would not feel that thev would be upheld by that Parliament and people.
– They might do so, and the clause will give them the power to do so.
– Yes, but thev would still be responsible to their Parliament.
– After the act is done.
– No doubt; but the honorable and learned senator is aware that a State Executive Council has now power to do a hundired-and-one things contrary to the people’s wishes, and does not do them. What keeps them in. the right course? It is a sense of ‘the responsibility they owe to their Parliament and people.
– Does that keep them in the right course alwavs?
– At all events, they are aware that thev will have to answer to the State Parliament and to the people of the State for anything thev may do which is considered preiudicial to the interests of the public generally. Having the superior authority in this common domain of legislation, we simply propose to empower them, when they do decide to do anything of the kind, to proceed to do it, notwithstanding anything to the contrary in the laws of their State. I assure honorable senators that since F riday last I have been in consultation with the public officers most intimately acquainted with the working of the existing Act, and who know a great deal about the working of corresponding laws in the different States, and they are disposed to think that an amendment in the direction indicated, or other amendments drafted for the purpose of trying to meet the views of honorable senators opposite, might and probably would, be read and construed in the States as bringing the States authorities no further forward in this matter.
– In those circumstances our compulsory provisions are utterly fallacious and misleading.
– Not at all. If possible, we desireto avoid having to resort to them, and we wish to empower the States authorities to agree to sell, just as freely as a private individual might do. unhampered bv any conditions of local legislation. I believe that honorable senators who have had an opportunity to consider the difficulty raised will be well advised in supporting the clause as it stands.
– Has the Minister had any communication from a State authority other than the letter which he has read, in which a request has been made for Federal legislation of the kind proposed?
– I do not know that I have. But, speaking from recollection, I believe that I have read in the Home Affairs or in the Attorney-General’s Department a statement by one of the States officers to this effect. “ Our Act does not give us the necessary powers, and therefore you had better adopt the system of compulsory acquisition.” As a matter of fact, the procedure now largely adopted is that of acquiring land compulsorily from the States.
– Is the Minister aware of any defect in thatprocedure?
– Only that it is a more roundabout method of doing what we desire to do. Though the States authorities may have in fact, but not in law. agreed, this method involves a considerable amount of advertising, asking the Stater authorities to put in claims, and the whole of the procedure laid down in the existing Act for the compulsory acquisition of land. which is, of course, rightly laid down- for the protection of individuals dealt with under the compulsory sections of the Act.
– No doubt it is most desirable that there should be a power of mutual arrangement enacted. It is only the form in which it is proposed to which objection is taken.
– Quite so. I appreciate the feelings of the honorable and learned senator with regard to that. But I am sure that, unless the clause is drafted in something like its present form, there will still be apprehension in the minds of the people who have already questioned how far existing Federal legislation enables them, so to speak, to disregard the law of their State in parting with lands required for the public purposes of the Commonwealth.
– If the Minister had been able to supply the Committee with a simple but clear proof that most of the States desire us to do something which practically they feel themselves unable to do, and desire that we should do it in the way proposed, we could accept the clause. Seeing the clause for the first time as it stands, and without any explanation, we should be justified in assuming that it arrogates to the Commonwealth powers which might be enforced against the States without their consent, and in such a1 way as to injure their feelings. In the absence of any explanation, we should say at once that this is an assertion of Commonwealth power which is very likely to create friction. Senator Keating has said that the authorities of one State intimated some years ago that, while perfectly willing that their land should be compulsorily acquired, there were certain obstacles in the way created by State legislation which they desired that the Commonwealth Parliament should overcome. IP 1,t I think the honorable senator quoted only one instance of that kind.
– I gave the Western Australian instance the other day.
– That was a different case, and, so far as we know, the Western Australian authorities in that case did not call upon the Commonwealth to enact legislation which would overcome the difficulties arising under their State legislation. What they said was that their State legislation was such that the difficulty could not be overcome except by the compulsory acquisition of the land by the Common wealth. The case cited by Senator Keating showed that in 1904 Mr. E. W. O’sullivan, as Minister of Lands for New South Wales, intimated that while the State had no power to alienate certain land to the Commonwealth, he would raise no objection to the Commonwealth taking immediate action to complete the purchase by acquiring the land by means of the Property for Public Purposes Acquisition Act 1901. Whilst I throw no doubt upon Senator Keating’s statement, I think it would be a pity to pass the clause in its present form, because it would enable the authorities in the various States to permit their lands to be compulsorily acquired, although that course might not be agreeable to the people of the State. If the States authorities desire that these acquisitions of land by the Commonwealth should take place unhampered by conditions of local legislation, why do they not alter their local legislation fo make that posible? Why should the onus be thrown upon the Commonwealth of assuming powers which might possibly foe exercised against the will of the people of the State ?
– It would never be possible to induce the Parliament of South Australia to pass an Act’ providing that the Commonwealth might take the park lands.
– I am noi’ dealing with park lands, but with Crown lands generally, in connexion with which certain obstacles lb their acquisition by the Commonwealth, arising under States legislation, could be got over by the States themselves,
– The States would not attempt to get over them.
– If they would not, why should we attempt to assume a superior position, and force them to act in contravention of their own laws?
– That is the point I take.
– Does Senator Guthrie think it fair that we should ?
– No, I do not; but I like Senator Best’s amendment less than the clause as it stands.
– I . think that it would be better to leave the States Parliaments to frame such legislation as may be necessary to overcome these difficulties, but, at the same time, I admit that if we had an intimation from all the States Governments that they were agreeable that we should do the work, there would toe no reason why we, as practical men, should not undertake it.
– Two objects are proposed to be served by the clause, and both should be kept in mind. First of all, we have to consider that we are taking the right to acquire lond for public purposes on behalf of the Commonwealth. I think we might assume circumstances in which it would be necessary for us to acquire land in the interest of the Commonwealth against the will of a State. In such circumstances, the interests of the whole must override those of a section, and we must, therefore, have the power to acquire compulsorily any of the lands of a State required in the public interest. We know that in all the States there are certain dedications or reservations in- connexion with public lands which, unless very strong reason to the contrary is shown, should be observed. The States “Parliaments taking necessarily a narrower view as compared with the Commonwealth Parliament have embedded the principle of reservation in particular enactments.1 In the event of circumstances arising in which, for some reason, it would be obviously in the public interest that land should be acquired by the Commonwealth for public purposes, and a certain dedication or reservation revoked, the case might be so strong that even the authorities of the State responsible for enacting the dedication or reservation would admit the justice of the claim.
– Thev may erect a tobacco factory upon park land.
– That is a highly improbable contingency.
– Let us assume, for the sake of argument that, in a time of stress or extraordinary circumstances, the best military judgment arrived at the conclusion that the most suitable site in the Commonwealth for a military fort was within the limits of the Adelaide park lands. Suppose that to be incontestibly - proved. Righteous as the dedication of lands for park purposes undoubtedly is, that is not a sufficient justification for jeopardizing the safety of the entire Commonwealth.
– The honorable senator has referred to football, but can any one conceive the possibility of the Commonwealth enacting a law to revoke a dedication of the character mentioned for the sake of providing a football ground?
– It has been done in Melbourne.
– It seems to me that the clause is designed to facilitate business! iri an event which may easily arise. Both parties may agree that the best’ thing to be done is that which is proposed, but a law may stand in the way. In order to obviate the necessity of a special Act in every instance in which a contingency of that sort arises, we by this Bill intrust the right to take land from a State to our responsible administrators, over whose action Parliament continually keeps control. I think that there is no danger involved in the provision.
– The honorable senator misconceives the position. We do not Jo anything of the kind.” My contention is that what we should db is to empower our agent - the Governor-General - to do these things.
– It seems to me that the clause empowers the act to be done by the administrators of a State, in conjunction with the administrators of the Commonwealth, notwithstanding, anything in the law of the State to the contrary. It seems to me to give two sets of administrators, on some general principle, the power to come to an agreement. I feel disposed to support the clause. I do not think that it contains anything which is offensive to the States. In all questions of aggregate public interest, we must take to the Commonwealth the right to supersede any section of the community in that connexion.
– - I fee’ quite sure that honorable senators are viewing this question from the Commonwealth point of view. No party issue is involved, and I believe that every honorable senator is endeavouring to pass a measure which will work smoothly. When the present Act was under consideration here, very few senators other than those’ who belonged to the legal profession, took any active interest in its provisions. Speaking from memory, it was left entirely to the superior intelligence of the lawyers to frame a measure which would carry out the intentions of the Parliament, and which would not in any way be oppressive to the States. It has been found, however, that notwithstanding all the diligence of the learned senators, it is not a perfect measure. Senator Keating has pointed out the direction in which it has not fulfilled the object of Parliament, and that is in coming to an agreement without resort to compulsion. Senator Guthrie has been persistent in his declaration that the Commonwealth could not take lands which hare been dedicated to the purposes of the public in the ‘different States. But that is all nonsense. Ac- 4 cording to the present Act - and also according to this Bill - if the Commonwealth choose to resort to compulsion it can take any land, whether it is dedicated to the purpose of a park land, or a cemetery, or a church. In some instances, the Government have not been able to come to an agreement with a State other than by resorting to compulsion, and they wish to obviate that. They wish to empower the representative authorities of the Commonwealth and a State to meet together, and to say, “We are both agreeable that this shall be done.” That is the object of the clause, and it is the object which Senator Best has in view when he wishes to embody section 3 of tha present Act in his suggested amendment. I believe that clause 6 is far more likely to be acceptable to the States than is his amendment, and I am very glad to find that my view is shared by Senator Trenwith. What does the clause provide in its present form ? It provides that if, in an emergency, or under any circumstances, it be desirable to resume any land, it shall be within the power of the representatives of the Commonwealth and the State to come together, and, notwithstanding any State legislation to the contrary, or any reservation attached to any land, to come to an agreement that the land shall be transferred to the Commonwealth. An interjection was made by an honorable senator about the land being handed back to the States, bin! that is a different matter. The Commonwealth already has full power to take any land for temporary use, and then it can revert to the State under the agreement, but that has nothing to do with the clause. If honorable senators will read the clause carefully they will see that it really is not necessary to retain the words - notwithstanding anything to the contrary in the law of any State.
The very object of the Bill implies that, and the expresion is only used in the clause as an indication of what is meant. Senator Best wishes to provide in an open manner that the Governor of a State, with the consent of his Executive Council, may do a certain thing.
– And under any conditions.
– If there were any reservations which the Government of a State wanted to maintain, they would noi recommend the proposal, and the Commonwealth would have to exercise its compulsory powers. The honorable senator does not, seem to recognise that whether the Government of a State agrees or not the Commonwealth has power, under existing legislation, to take land compulsorily. and that the Bill keeps that power in .existence. The clause, as it stands, will enable the Government of the Commonwealth to act as fairly as possible towards a State. Etu’ what Senator Best wishes to do is to embody in this clause section 3 of the Act, which empowers the GovernorGeneral to make an agreement with a State, and provides that, upon its publication in the Gazette, the matter shall be finished, in spite of any legislation of the State to the contrary, or of any reservation attached to the land. In the clause, however, we say that the Governor of a State, with the consent of his Executive Council, may come to an agreement with the Commonwealth. I hope that honorable senators will be able to see the matter in that light.
-4Sl- - I have a very strong feeling upon - this matter, because I have seen the inroads that have been made by public authorities upon the public domain. We ought to do everything that lies in our power to protect from inroads estates owned and enjoyed by’ the public. I have a clear recollection of an endeavour made some time ago by the Gtv Corporation to take a portion of the park lands surrounding Adelaide for the purpose of erecting abattoirs, rubbish destructors, and other buildings of an objectionable character. The Defence Department has also made considerable inroads upon the public domain, though it is true that it has not prevented the public from crossing the land.
– It has beautified the place.
– There is no beautification in a galvanized iron shed and an asphalted path.
– Mv Department has never taken any land for that purpose.
– The Defence Deportment took it over, and has still further encroached upon the public reserve. This
Bill gives the Commonwealth Government further power to take away land vested in the public.
– The honorable senator is simply showing that the States have taken public lands.
– The Commonwealth has also been making encroachments.
– Oh, no.
– I do not agree either with Senator Best’s amendment or with the clause as it stands.
– Mv amendment is, first, to reject the clause, and then to substitute section 3 of the original Act, together with additional words, providing that when an agreement has been entered into between the Governor-General and the Governor of a State, with the advice of the Executive Council of the State, thereupon the land shall vest in the Commonwealth free of all encumbrances.
– To intrust this power to the .Commonwealth Government means that ff it resumes public property for Commonwealth purposes, the public may have no right of entrance.
– - What area of park lands has been resumed?
– I do not care what the area is. Tt does not matter if it is only a square foot.
– That has been done under the present law.
– If it is the present law, the Minister of Defence has never had the pluck to put up a barrier, and to say to the public of Adelaide, “You shall not go upon that land.”
– He can compulsorily resume if he likes.
– -Why should1 I keep the public out?
– Why should not the Minister do it if he is the rightful owner? As a private individual, having interests in another corner of the city of Adelaide, he can say to the public, “ I def y you to go upon this land.” Why should he do that as chairman of a company, and yet, as Minister of Defence, give the public the right to go upon land which his Department has resumed?
– He has not exercised! his full power in the latter case; that is all.
– Why does he not exercise it?
– If my Department built a powder magazine upon the land, I should refuse to allow the public to go there.
– Powder magazines have been built, ai/d I can go and smoke my pipe there. The public go there, and the Department has never prevented them.
– Has the honorable senator done that?
– Then he is lucky to be here now !
– I maintain that lands which have been devoted to the public use for the last 50 or 100 years should not be taken away from them. I have strong reasons for that contention.
– Then the honorable senator ought to have been a legislator a century ago.
– In the country where I was born I have seen the public turn out en masse, pull up fences, pour oil upon them, and burn them, in order to insist upon their right to passage across lands. I am surprised that Senator McGregor, who knows these facts as well as I do, should support this provision.
– The honorable senator is labouring under a misunderstanding.
– I am not.
– The honorable senator should recollect that the State is the public. The Commonwealth would act in the interests of the public.
– What is a municipality ? Is it not supposed to represent the public? Yet the municipality of Adelaide attempted to take away certain portions of the park lands of that city. The State Government, however, refused its permission. Now the Federal Government is taking power to say that it shall, if it likes, vest those lands in the Commonwealth. What do the Commonwealth representatives from Queensland and Tasmania care about the park lands of Adelaide? They do not care twopence.
– Does the- honorable senator really believe that?
– Senator Trenwith himself said that if it was in the interests of the Commonwealth that a tobacco factory should be erected on the park lands of Adelaide, it should be done.
– I have not said that, but I say it now. If the park lands of Adelaide were the only place where it would be in the interests of the Commonwealth to erect a factory that was required for Commonwealth purposes, it should be done there.
– Against the interests of the people? Unless the people of any part of the Commonwealth where lands are taken by the Commonwealth are given the right of. entrance, I shall vote against the clause.
– We should never have had the railway im Adelaide to this day if permission had been refused to enter upon the park lands. The railway crosses those lands.
– But the point is that this Bill puts a new construction upon the term “ public purposes. “ This point has formed the subject of a decision by the Supreme Court in South Australia. I wish Senator Symon were present, because he gave an opinion both ways on that case.
– That shows that it is arguable !
– First of all he gave an opinion to the Government, and then he accepted a brief on the other side. I refer to the Malcolm lands case. The decision of the Supreme Court was that the Government had power to reclaim lands for roads, railways, and bridges, and for such purposes only. But under this Bill the powers given to the Commonwealth are far greater than those enjoyed by any State.
– So they ought to be.
– The definition of “ public purposes “ contained in this Bill would apply to the whole Continent.
– There is not a principle in this Bill, so far as resumption is concerned, that has1 not been embodied in States Acts almost ever since responsible government was granted to the States of Australia.
– Such a law already exists in South’ Australia.
– What is that principle ?
– That the State must be supreme where it is in the interests of the public to resume lands.
– That is the law of eminent domain. ,
– The principle of this Bill is very’ much wider than that contained in the States laws.
– The Supreme Court of South Australia absolutely laid it down that the only powers which the State had to resume public lands were for the purpose of making roads, railways, and bridges.
– Does the honorable senator think that the Commonwealth is going to acquire land unless it really wants it?
– The Commonwealth may want land to speculate with.
– That would not be for “public purposes.”
– It is questionable.
-Col. Gould. - The Constitution would stop that. The Commonwealth cannot go beyond the’ powers conferred by the Constitution.
– Anything that is lawful under the Constitution can be done. It is, for instance, lawful for the Com monwealth to build lighthouses.
– Does the honorable senator say that the Commonwealth should put up a lighthouse in a wrong place because the right place happens to be publicproperty ?
– The Commonwealth should not be allowed to acquire 100 acres for the purpose of a lighthouse whan five acres would be sufficient-. I can quote a case where that has been done.
– But there is no reason why the Commonwealth should not have the power because a similar .power hasat times been abused.
– The honorablesenator wants to shut the public out from all lands acquired by the Commonwealth. He wishes to provide that property shall’ be handed over to the Federal Government without encumbrance, and that, even though the public have had the right to use lands for 100 years, that right may be taken away from them.
– The public may still have the right when the land is acquired bv the Commonwealth.
– And probably will” have it.
– But “ the amendment says that the land is to be acquired” without encumbrances.
– That is the object of the clause also.
- Senator Best apparently wants to absolutely shut out the people.
– The honorable senator misunderstands me.
- Senator Best proposes that where the State has given a right in land to the people, that right may be taken away.
– That is the object of the clause, and the object of the existing law.
– I do not think so. I shall support the clause in preference to the amendment suggested by Senator Best, but I shall later on move that the words within brackets be left out.
Question - That the clause stand as printed - put. The Committee divided.
Majority … … 1
Question so resolved in the affirmative.
Clause agreed to.
Clause 7 (Minister of State may act for State).
– I should like the Minister to explain how this clause compares with the corresponding section in the original Act. I observe that there has been a great re-arrangement of provisions, some clauses being identical with corresponding sections, while others are curtailed and varied in all sorts of* ways. It wouldcertainly save time, and serve the convenience of the Committee, if the Minister would explain the reasons for the variations.
– The honorable senator, if he turns to the original Act, will find that this clause is practically a redraft of section 48, which opens with the following words : -
Wherever under this Act a State may make any claim, or give any notice, or do or suffer any act, matter, or thing, or be made subject to any liability. …
The opening words of clause 7 are -
Where under this Act a State may make a claim, or give any notice, or do or suffer any act, matter, or thing, or be made subject to any liability…..
It will be seen that the two provisions thus far are almost verbatim. The remainder of section 48 is - such claim may be made, or notice given, or act, matter, or thing done or suffered by, and such liability may be enforced against, the Minister for Lands of the State, or such other “ Minister of the Crown for the State as the Governor of the State, with the advice of the Executive Council thereof, may appoint.
Clause 7 continues - the claim may be made or notice given - not “ such claim “ - or act, matter, or thing done or suffered by, or the liability may be enforced against the Minister for Lands of the State, or such other Minister of the Crown for the State as the Governor of the State, with the advice of the Executive Council thereof, appoints.
There is no substantial alteration.
– Will the Minister tell us what is the essential difference?
– There is none. It is simply a matter of drafting, in order to make the provision read better. While the Bill was being drafted two minor alterations suggested themselves as bringing the clause more into conformity with the drafting of provisions usual in the Commonwealth Statutes. On the second reading I purposely took the precaution to introduce to the notice of honorable senators every material or substantial alteration that would be effected by the Bill. If I did not particularly refer to a clause it was because there was no alteration in it of any consequence or material significance.
Clause agreed to.
Clause 8 -
Any person seised, possessed, or entitled to any land, particularly any -
tenant in tail or for life;
married woman seised in her own right or entitled to dower ;
committee of a lunatic or idiot ;
trustee or feoffee in trust;
executor or administrator ;
person for the time being entitled to the receipt of the rents and profits of any land in possession or subject to any estatein dower ; or
lessee for life, or for life and years, or for years, or for any less interest ; may (by force of this Act, and notwithstanding anything to the contrary in any law, deed of settlement, memorandum, or articles of association, deed, or instrument), sell and convey the land to the Commonwealth, and may enter into any agreement for that purpose.
Senator Lt.-Col. GOULD (New South Wales) [4.10]. - Although I believe that this clause is similar to the corresponding section in the original Act, I desire to call attention to the fact that a very serious power is placed in the hands of corporations, trustees, and so forth. Amongst the persons referred to in this clause is (f) “ trustee or feoffee in trust.”
– That is also provided in section 4 of the original Act.
.- The following words are certainly new : - (by force of this Act, and notwithstanding anything to the contrary in any law, deed of settlement, memorandum, or articles of associa- tions, deed, or instrument).
– These words are, in fact, restored to. our law from the existing English law. When we passed the Property for Public Purposes Acquisition Act they were omitted, and the present opportunity is taken to re-introduce them.
.- Is there a provision later on providing how the trustee or feoffee in trust shall hold the money ?
– Yes; the Court has power to determine how the compensation shall be paid.
.- It is all very well to legislate in this way, but such provisions deal rather ruthlessly with all sorts of trusts, whether for public purposes or in private interests. Where lands have been settled upon trust for the payment of the rents to a widow and afterwards to her children, the sale might not be in the best interest of the family generally. It would be much better in such cases for the trustee or person holding the land to get the approval of the Court, or, failing that, to leave it to the Government to resume the land, so that, while the law was complied with, the trustees themselves might be protected. We do not desire to put a trustee in such a. position that he will be liable for a breach of trust, and neither do we desire to ride rough-shod over the Courts of the State in a matter of the kind. It would be as well to call a halt in regard to some of these provisions, in order to insure that persons like those to whom I have referred may be placed in a safer position.
– The powers which are sought by the new clause are at present enjoyed by the Commonwealth. If honorable senators compare clause 8 with section 4 of the original Act, they will see that the same bodies and persons, and only the same, are empowered to dispose of land under the Bill to the Commonwealth.
– The clause is wider than the present section.
– In what respect?
– According to the original Act, this power is confined to trustees or feoffees in trust for charitable or other purposes.
– That is so. Trustees are, under this clause, empowered to convey lands to which they are legally entitled to the Commonwealth for the purposes of this Bill. It is desirable that the Commonwealth should not be hampered in any way in the acquisition of lands, so long as they are required for a public purpose. If the Commonwealth is to be compelled to enter into nice questions as to whether or not any trustee would be well advised in disposing of the land which he holds, upon certain trusts indicated in somedeed or document of title, we should never know when we could negotiate with such persons. If that were so, any person would be entitled’ to draw up deeds and documents of trust which would place considerable obstacles in the way of the Commonwealth acquiring land for public purposes. We, therefore, propose to empower all such persons holding a partial or limited interest in land, and having an immediate legal title to it, to dispose of it to the Commonwealth for public purposes under this Bill. We are not giving such persons the right to dispose of such lands in a general fashion to anybody, but only in certain specified circumstances, namely, to the Commonwealth, for public purposes, and under the provisions of this Bill. Once they do dispose of it, so far as the compensation which may be paid to them is concerned, subsequent provision is made in clause 11 for its application. In that clause we provide that-
Any such purchase money or compensation, when paid to a tenant in tail or for life, guardian, committee of a lunatic or idiot, executor, administrator, or person having a partial or qualified interest only, and not entitled to sell or convey except under the provisions of this Act, shall be applied in some one or more of the following manners .
Then the clause indicates several different methods in which the compensation may be applied.
– But .it says “ when paid.” Would it not then be too late. Does the Minister propose that it should be left to the person to whom the compensation is paid to make the application provided for? Is it proposed that the Commonwealth should assume any responsibility in the matter.
– No, we do not propose that the Commonwealth should take any responsibility in the matter, if the person to whom the compensation is paid is not disposed to apply it under paragraph a, “in the discharge of any debt or encumbrance “ ; under paragraph b, “in the purchase of other land or of Government securities of the Commonwealth or of a State,” or paragraph c, “ in removing or replacing buildings or substituting others in their stead.” But there is power left to the parties interested to apply to the High Court or to the Supreme Court of a State to make a direction “as to how the purchase money is to be applied.-
– Yes, but I point out that the money having once been paid, it might be too late to attempt any of those things. Strictly speaking, would it not be the proper course to adopt to deposit the money with the Court, giving power to. the person making the sale to apply to the Court for his share, and leaving the balance to be paid out on application by the persons interested ?
– Possibly, but I am pointing out now the way in which we propose that the purchase money shall be dealt with, and that we give to the parties interested the right to apply to the High Court or the Supreme Court for a direction as to the application of the money. Under the existing law the parties might apply to the High Court for a direction as to the apportionment of the money, and we propose a modification of the existing law to the extent of enabling those persons to apply not merely to the High Court, but alternatively to the Supreme Court of a State for such a direction. We introduce no other new provisions in clause n, to which I have referred honorable senators, because of its relation to clause 8, with which we are at present dealing. Going back to clause 8, I point out that we only extend the existing law in this clause by making trustees or feoffees in trust for other than charitable purposes competent to convey to the Commonwealth.
– Is not that a very serious extension?
– I do not think that it is. Of course we have executors and administrators, who, in a great many instances, occupy the position of trustees, and, speaking generally, that is the only extension we propose of the provisions of the existing law, if I exclude for a moment from consideration the words within parentheses. These, as I have already pointed out, are provisions which exist in the English legislation from which our present Act was adopted, as honorable senators will see by a reference to the marginal note of the corresponding section in the existing Act. The words referred to are - by force of this Act, and notwithstanding anything to the contrary in any law, legal settlement, memorandum, or articles of association, deed or instrument.
Although these words do not appear in the existing Act, and are incorporated in this clause, they are not novel or original, but merely a statement of principles that apply in the corresponding sections of English legislation which has been in force for some time, and which, for some reason or other, were not adopted at the time we were passing our existing law.
– Is that why they are printed within parentheses?
– I do not know that it is for that reason. They may perhaps appear in parentheses in the English Act, Thev are words which correspond to the words within parentheses in clause 6. The object is that those persons who have a partial interest, or an interest subject to a trust, may not have the slightest doubt in their minds as to their power and authority to dispose of land to “the Commonwealth for public purposes under the provisions of this Bill.
.- I admit freely that Senator Keating is quite right in saying that these provisions are well founded. They are founded on English legislation, to some extent re-enacted in our own law, but it is just as well that the Committee should understand the full extent of their operation. Personally, I think that thev go too far. Under this clause, for instance, this might happen : A.B. might be a life tenant of a most valuable property in Collins-street, CD. the reversionary owner, subject to the life tenancy of A.B., may be living in a remote part of Australia or abroad. It would be quite possible, under this clause, for the Commonwealth Government to resume the property by arrangement or otherwise. It will toe observed that the estate of the life tenant would be practically only a small portion carved out of the estate in question. The Bill would enable the life tenant to deal with that valuable property just as though he were the owner of the fee-simple, and the Government could go so far as to say that he was entitled to receive the whole of the purchase money. The real owner of the reversion, who, as I have said, might be resident abroad, might never hear anything about the transaction. Hitherto the life tenant has not been able to deal with any interest in an estate, saving his own life tenancy, but, under this clause, when once he received the purchase money, he would put it into his pocket, and the owner of the reversion would be absolutely and completely robbed of his interest in the estate. That is what this Parliament is asked to enact. According to my view that has always seemed to be a harsh law. I think that the proper -way in which to deal with such matters is that, where various interests exist in an estate, such, for instance, as the interest of a remainder man, the owner of the reversion, it should be necessary that the transaction should be submitted to a Judge of the Supreme Court, or, ai least, to m..orncer of that Court, whose duty it should be to assess the value of the several interests in the estate, and to pay om! to the life tenant, for example, his interest, whilst the Government should deposit in the Treasury, or in the Savings Bank, or with the Court, as might be thought advisable, the balance of the money, to be lifted whenever the remainder man came to be entitled to it. I have given a most simple illustration, because I desire to impress upon honorable senators the seriousness of the principle. I wish’ them to understand that they are here being asked to re-enact what, in my view, is an alarming principle, and I have suggested what I think should be the course adopted.
– The objection seems to lie only to paragraph i of clause 8.
– No; ihe objection lies to paragraph b, “ Tenant in tail or for life.”
– To paragraphs b and i; the other cases appear to be fairly safeguarded.
– In the case of other trustees referred to, it is probable thai’ the hardship would not be so serious. For instance, a guardian is constituted by a testator, or by the Court, to control the property, and there would be no hardship in that case. There would be no hardship in the case of a “ committee of a lunatic or idiot” who would be appointed by the Court’ for the purpose of looking after the affairs of the lunatic or idiot. There would, possibly, be no hardship in the case of a “trustee or feoffee’’ in trust appointed by the persons directly interested, or by the Court, for the purpose of managing the trust estate, nor in the case of an executor or administrator appointed either by a testator, or by the Court. I think that the objection I have raised would lie to paragraph h -
Person for the time being entitled to the receipt of the rents and profits of any land in possession or subject to any estate in dower.
In respect to paragraphs b, A, and the serious objection I have raised will hold good. I . submit to the Minister that the terms of the Bill are that’, in the case of these persons, they are to be entitled to give the estate in fee simple to the Government. There might be no objection to that, but when we come to look at clause 11, we find that it is provided that -
Any such purchase money or compensation when paid - to such persons, is to be applied in certain ways provided for in the clause. When the money is paid over to the life tenant to whom I have referred, clause 11 goes on to provide how the purchase money shall be applied by that person. It will then be quite competent for any person interested to apply to the High Court, or the Supreme Court of a State, for a direction as to the way in which the purchase money shall be applied. That is all right.
– Is it not dealt with in clause 10?
– The point is that the money has already been paid over.
– .Clause 10 indicates to whom it may be paid.
– The money has already been paid over to the tenant for life, and he has put it in his pocket. C. D., the person I have referred to, has never heard anything about the matter, and without his will, he has been robbed of his estate. ‘It has been converted into cash and the money has been paid to a person who was only a tenant for life.
– Which is authorized by this Bill.
– Yes; a life tenant is authorized to convey the whole estate away from C, D., who is abroad. I submit that if it were necessary to hunt all over the country for the cestui que trusts - that is the persons beneficial lv interested - the matter would be hung up indefinitely. Where trusts are disclosed, the obligation should be thrown upon the Government to pay the money into Court, in order that an assessment of the various interests might be made, and. the money paid out. Although these principles have been re-enacted time after time, I would call the attention of the Government to the desirability of reconsidering them.
– That is a matter which, I venture to suggest should be considered on the clause relating to the application of the purchase money. In the meantime, it is desirable, however we may provide for the application of the purchase money, that the persons who hold the legal estate shall be empowered to convey to the Commonwealth, so that there shall be the least possible delay, and there shall not be an opportunity afforded to private individuals who desire to hoodwink the Commonwealth, to enter into deeds of trust which would in some way or other hamper its action in relation to the property. This clause, I think, should stand, and the Question of apportioning the compensation could be better determined on clauses 10 and 11.
– It is not inappropriate to mention a matter which I brought up on the definition clause, because the same principle is involved. Judging from the last words of Senator Best, his object in directing attention to a weakness in this and subsequent clauses is to point out that there is no machinery by which compensation money can be distributed in equitable proportion among the holders of various interests in land acquired. That is exactly the position I raised in regard to conditional purchasers, conditional lessees, and the holders of other tenures in New South Wales. I have not yet been, able to discover in the Bill any proper provision by which the interests of the States of New South Wales and the interests of those to whom it has conditionally sold land! can be determined. Nor can I discover that there is any machinery by which compensation money can be distributed between them. It is possible that there are other clauses in which I can submit an amendment, but, still, I suggest to Senator Keating whether, if there is any force in the remarks concerning this clause, clause 8 will not also require consideration if it be deemed desirable to alter the definition clause later on.
-Col. GOULD (New South Wales) [4.36]. - I am very glad that I referred to this clause, because the remarks of Senator Best have thrown a good deal of light upon what we are enacting. The Government say, “ Do not throw any obstacle in the way of getting a transfer completed.” But there is such a thing as placing too much power in the hands of a Government at the expense of persons who are primarily interested in property. While we should be willing to give every facility we can to the Government where it is necessary to acquire land, we should also take care that . no opportunity is afforded by our legislation to persons to defraud others of what they are entitled to. It has been pointed out that the empowering of tenants in tail or for life to dispose of property, is a very serious matter, especially when coupled with the right to receive the purchase money. I do not object to making the machinery of the law reasonably smooth and easy, so long as the interests of owners of land are fully provided’ for. But that, I think, has not been done here. The Minister has stated that the clause has been taken from the Imperial’ Act. Paragraph i of the Bill empowers a trustee or feoffee in trust to sell or convey. But according to section 4 of the present Act, it is only those persons who hold “ in trust for charitable or other purposes” who can exercise this right. I wish to know why it is necessary to extend the power so as to meet cases where persons are holding land on private trusts. Why should we give power to these persons to join in and sell instead of leaving it to the Government to adopt some other course?
– In paragraph i we do not extend the provision. The words, ‘ for charitable or other purposes “ are not necessary.
.- No doubt, from the Minister’s stand-point, they are not necessary, but the provision in the present Act relates to - all trustees or feoffees in trust for charitable or other purposes.
The words “Other purposes” do not extend the power to an unlimited extent.
– They go beyond the charitable genus.
.- I feel certain that the Minister will find that the words have been held to be words of limitation, and limitation to a purpose of a charitable character. Paragraph i of clause 8, however, gives the right to sell and convey land toa - lessee for life, or for life and years, or for years, or for any less interest.
Suppose that a man had a property leased to him for a period of three or five years. Under this provision he would have the power of entering into negotiation, and fixing the purchase money for the fee-simple of the land. By a subsequent clause he could receive the money, and the owner would have to get it out of him as best he could. Surely the Minister must see that a lessee for life, or for life and years, or for any less interest should not have the power to convey the fee-simple ! He might be allowed to deal with his life interest, whatever it was, leaving it to the owner of the land to join in with regard to the remainder.
– I think that in every State Statute and in the English Act there is a corresponding power for a lessee for life to convey the legal estate.
.- But this provision relating to a lessee for years carries the principle still further.
.- It is well that the Committee should pause before it gives such drastic powers in a Bill of this character. It would be a different thing if it wereonly providing that these persons could sell and convey their interest in any land, whatever it might be.
– According to the English Act of 1845. amongst others em powered to sell, convey, or release are persons who hold, subjectto any lease for life, or for life and years, or for years, or for any less interest.
.- If the Minister desires to make substantial, and, as I conceive, most necessary reforms in the law relating to the acquisition of land and compensation therefor, there is ample room for doing so. The danger I have referred to applies most seriously, I think, to paragraphs b,h, and i, because a lessee for years cannot be said to have the legal estate.
– Upon looking at the English Act, 1 find that there are provisions for the application of compensation when it exceeds £200 in the direction indicated by the honorable senator.
.- Will the Minister make a provision of that character?
– Personal ly, I see no objection to doing that.
– I hope that the Minister will see the desirability of making an amendment.
– The sections in the English Act are very cumbersome’, but they make provision for the deposit of the compensation, and the application of it amongst the various parties interested.
– That is all I am contending for. The Minister will see that under the Bill as it stands it would be quite possible, and it is a very common case, for a man without knowledge to be completely robbed of his property.
– In the English Act there are differential provisions, namely, for sums up to £20, from£20 to £200. and then from£200 on.
– For the reasons I have urged, I think it is undesirable that the Government should be at liberty to negotiate solely with a -
It is most undesirable that the Government should negotiate with those persons alone. My suggestion to the Minister is that where a person is not the owner in fee-simple, and where there are subordinate interests - for instance, where property is held in trust - then-, in order to relieve the Government from any embarrassment or difficulty, they should simply deposit the amount, and allow the persons to take out the money for themselves. That would assure to these persons, at all events, that they would be placed in no worse position than they previously occupied, because they would get an assessment of the value of their interest. I do not deem it necessary that in the interest of the Government there should be any person who would convey to them a legal estate, because in these Acts, right from the very commencement, there has always been provision made for the vesting of the estate by the execution of a deed-poll by a purchaser, whilst in some cases the mere fact of the deposit of the money has vested the estate in the Government. What I am urging is that the Minister should adopt some of the principles embodied in this measure itself, and say that, on taking possession of land, and on notification in the Government Gazette, instead of paying over the money to the tenant for life - who may disappropriate it - or to the other persons mentioned, he should simply deposit the money. Then the interests of the other persons would be protected. In the interests of the Government it is not necessary that the purchase money should be paid to the’ person from whom the land is acquired. There is no value in a clause of this kind, which picks out a person having a comparatively small interest in a property, and says that that person shall convey to the Government.
SenatorPearce. - Are we in a different position from a State in this respect?
– We should be in a better position in the way I have suggested - by saying that when we have deposited the money the property shall vest in the Commonwealth. I suggest that, instead of the present provisions contained in paragraphs b, h, and i - under which injury can be done, money embezzled, and a man deprived of his estate - the money should be deposited, and the person dealt with should only have power to draw out a sum corresponding to his interest.
– I think that the persons mentioned in paragraphs b, h, and i are provided for in paragraph a of clause 9. They can only convey as far as their own interest is concerned, not for any other party.
– As a matter of fact, a tenant for life can convey absolutely.
– A tenant for life is a different person from a lessee for life.
– I think that Senator Keating realizes that the Government has nothing to gain by setting up a person with a limited interest to convey the whole of the property concerned. All that need be done - what should be done to protect the interests of others - is simply to deposit the money.
– This clause, as it stands, provides that the person or bodies enumerated in the paragraphs may, “ bv force of this Act,” “sell and convey the land to the Commonwealth.” Clause 9, which will subsequently come up for consideration, provides, in paragraph a, that the power to sell and convey may be exercised - by any person (other than a married woman entitled to dower, 01 a lessee for life, or for life and years, or for years, or for any less interest), not only on behalf of himself and his heirs, executors, administrators, and successors, but also on behalf of every person entitled to reversion, remainder, or expectancy after him, and in defeasance of the estate of eve ry person so entitled.
Theeffect of that provision is that the persons excepted have no power to convey anv interest beyond their own.
– That does not seem to be set out clearly, and it seems 10 be in contradiction of paragraph i of clause8.
– The Bill - says that the power to sell may be exercised by any person, not only on behalf of himself, but also on behalf of any person entitled in reversion, remainder, or expectancy after him, and in defeasance of the estate of every person so entitled ; with the exception of the persons enumerated in brackets in the paragraph. If it is desired that there shall be any restriction placed on persons who only hold a partial or limited interest in property disposing of the whole of the estates to the Commonwealth, the proper course, it seems to me, would be to extend the exemptions which are included in parentheses in paragraph a of clause 9. If Senator Best objects to the tenant In tail or the tenant for life having power to dispose of the whole interest in a property to the Commonwealth, the proper place to include such an amendment would be in the same paragraph. The tenant’ for life could be included amongst the other disabled persons. But clause 8 -deals with the power of persons to dispose of land to the Commonwealth where the compulsory powers of the measure, are -not being employed.
– It does not say anything about their own interests.
– But the definition of land in the Bill includes any estate or interest in land. If Senator Best wishes to except any person empowered by clause 8 to dispose of land to the ‘Commonwealth, and to confine his powers to his own interests, such person can be enumerated where I have mentioned in clause 9.
.- My honorable and learned friend Senator Keating has not dealt with my, objection. I draw attention to the ambiguous wording of this clause. The power to sell land may be exercised by “ any person.” . It does not go on to say “ any person who is interested,” no matter how small his interest is. We will assume that he has some interest - it may be the most remote. For instance, it may be an interest coming into existence after the death of a dozen persons. But that person under this clause is authorized - provided he is not one of the persons excepted - not only on behalf of himself, his heirs, and successors, but also on behalf of every person entitled in reversion, remainder, or expectancy after him, and in defeasance of the estate of every person so entitled to convey the land to the Commonwealth. That is the principle which I say is wrong.
– The minor interest may give away the right of the major.
– Exactly. Any man with a mere titular interest - with the most remote interest - is to be at liberty to give away the rights of persons who are entitled “ in reversion, remainder, or expectancy after him.” That is the provision to which I am taking exception. The fault will not be cured by adopting the suggestion of my .honorable and learned .friend and inserting, in paragraph a of clause 9 the words “ tenant for life.” because the object and the intent of this clause is to enable a person with a remote interest to give away the estate of others.
Clause agreed to.
Clause 9 (Extent of power to sell).
.-^-! do not desire to embarrass my honorable and learned friend, Senator Keating, because I am aware that the ques tion to which I have called attention is a difficult one to deal with at the table; but I hope that he will take into consideration the representations that I have made. I would not advise him to insert an amendment hastily. An alteration of the kind cannot be made without full consideration as to how it will affect other portions of the Bill. It is not the intention1 and desire of this Parliament that the property of persons should, against their will, and without their knowledge, be taken away from them.
– I agree that we should have some provision for the deposit of purchase money where a number of interests are involved. Does the honorable senator wish to test the question regarding the insertion of the words “ tenant for life”?
– I am not going to advise my honorable friend to consent to an amendment of that kind without further consideration, especially in regard to a provision which has been in operation in some form since 1845. I say, however, that it is a wrong principle, and one that ought not to be perpetuated by this Parliament. I therefore ask my honorable friend to take the point into consideration, and, if necessary, to recommit the clause.
– I will agree to a recommittal if Senator Best desires it.
– I want my honorable and learned friend to take the responsibility.
– I know what the honorable and learned senator means.
Senator Lt.-Col. GOULD (New South Wales) [4.58]. - There is nothing very serious in making such an amendment as has been suggested. It is not necessary that the Minister should think it over. The clause provides that a lessee for life shall not be entitled to convey the whole of his estate away. What we need to do is to insert in addition the words “ tenant for life.” A tenant for life virtually, has the same estate as a lessee for life. But still he is not a lessee for life. It is1 just as easy to ascertain who is entitled to the reversion of an estate held by a tenant for life as who is entitled in the case of a lesseeship for life. There is a distinction between the two. A man lets property to A.B. for life, with the remainder to CD. In another case he leases property to A.B. for the remainder pf his life, which is a different thing from making him a tenant for life. I think the Minister ran readily agree to the insertion of wards such as have been suggested.
– The words “tenant for life” should certainly go in, but if the Minister has any doubt about it he should have time to consider the point.
– I am contending that there should be no doubt about it. I understand that the Government want to be in a position to secure the conveyance of property with a minimum of trouble. There is no more trouble about getting a xonveyance from the owner of the land where it is in the occupation of a tenant for life than in the case of the occupancy by a lessee for life. I do not think there is much need to be apprehensive as. to persons other than those enumerated.
– But the principle is r3.th.cr serious.
*- That is so, but I cannot see that a conveyance would be taken from any person who had a less interest than that mentioned.
– Then what is the object ?
– There may possibly be some reason, but I cannot see any danger; I cannot imagine that the Government would be advised to take a conveyance from any person holding any verymuch smaller interest. The Government could always protect themselves by resuming the land, and obtaining possession in that way. With the amendment suggested,” and provision made as to how the purchase money or compensation shall be paid, the clause will, I think, amply protect every interest. Will the Minister consent to an amendment ?
– I cannot consent to an amendment, but I shall have the matter indicated by Senator Best considered, and, if it be necessary, we can recommit.
Clause agreed to.
Clause 10 (Payment of purchase money).
– I agree with Senator Best that it might be desirable to have some provision analogous to that in the British Act, in regard to the distribution of the purchase money amongst the persons holding various interests in the same piece of land. This clause enables the Commonwealth to pay the money to the person who is empowered to sell and convey the land, and clause n deals with the application of purchase money, when it is paid to a person having a partial interest. I have -no objection to both clauses being postponed. In the meantime, I shall have the matter considered, and, if possible, some amendments brought down for consideration.
Clause 11 postponed.
Clauses 12 and 13 agreed to.
Clause 14 (Modes of acquisition).
.- I move -
That the following words be added to the clause : - “ Provided that nothing in this Act shall authorize the acquisition by the Commonwealth otherwise than by agreement with the State of any Crown land of a State which is dedicated for the recreation op: amusement of the public, and has . been so dedicated for a period of seven years.”
I quite agree that the amplest power should be given to the Commonwealth to acquire lands which may be necessary for Federal purposes. In regard’, however, to lands dedicated to public recreation or amusement, we map reasonably ask for a little restriction. We should not enable, possibly, a military officer who has rather large ideas, as military officers sometimes have-
– Senator Gould does not say “ hear, hear,” to that.
– I will say “ hear, hear,” if the honorable senator wishes.
– We should not allow such officers to acquire these public lands when they may be able .to secure others. In all the State capitals, and many of the other cities, there are reserves which the public enjoy and appreciate, and which they very jealously guard; and the restriction I suggest seems very insignificant.
– Is it insignificant? It is very serious.
– It is a small restriction, applying only to lands which have been dedicated for seven years. It will not prevent the Commonwealth acquiring such lands, but merely stipulate that the consent of the State Government shall be. obtained.
– This amendment is in contradiction to the short title of the Bill.
– That may be; possibly the short title of the Bill, although I supported it, may not be exactly the one that should have been applied to the measure. However, I know that in the various capital- and other cities, there are reservations which the public have enjoyed for many years, and which ought not to be lightly taken away.
– Hear, hear.
– As the Minister of Defence is present, I may mention that there is a disposition on the part of the Defence Department to sometimes ride roughshod, not only over public, but also private rights.
– Give an instance.
– I can at once give an instance of such proceedings in the case of a private owner of land.
– But the honorable senator was talking about public lands.
– I do not think it is right for any public Department to send officers to examine and survey private lands, without having the courtesy to approach the owner and give him notice of the possibility of the land being acquired.
– If the honorable member objects to that proceeding, he will have to oppose a great deal of this Bill.
– In the case of Melbourne, those who first surveyed the city showed very wise foresight in dedicating large reserves for public purposes. I suppose there are few cities in the world the inhabitants of which have such reason to be thankful in this respect, and in all the cities of the Commonwealth there are reserves of one kind and another. In Hobart and in Launceston, the chief city of the north of Tasmania, there are reserves on the maintenance and beautifying of which public money is spent year after year, and which are regarded by the people with as much, if not more, jealous care than is their own private property.
– For what purpose would the Commonwealth Government resume Cataract Gorge?
– But the Commonwealth Government might resume some of the reserves for the purposes of a drill ground, and thus deprive the public of access to them.
– The citizens of the island are not Tasmanians, but Australians, now.
– That is so; and they have ho objection to the Commonwealth Government acquiring all the land that is necessary for Federal purposes. It may be considered only wise, however, to have some little restriction in regard to lands which are now dedicated to public purposes. There is a disposition, on the part of military officers,, at any rate, to disregard the rights of the people - to proceed in time of peace much as they would in time of war. My desire is to put a brake on the ardour of those gentlemen, and to give them to understand that there are public rights which even the Commonwealth ought to respect. It is all very well for the Minister of Defence to say that the Department would never endeavour to obtain a piece of a recreation reserve unless the land was absolutely necessary.
– I do not think that the Department ever did, or ever wanted to, acquire land that was not absolutely necessary.
– On the other hand, I do not think any State Government would raise any real objection if a certain piece of land were necessary, and another piece quite as good could “not be obtained. -However, I have placed the amendment before the Committee, and I hope it will receive fair consideration and support. I have proposed the term of seven years, but, it it be deemed advisable, I shall have no objection to an alteration in that regard. The principle of the amendment is that there shall be no absolute power to compulsorily acquire land used for recreation and amusement and the promotion of the public health.
– What would be the use of the Bill if under it we could not acquire such land ?
– The proviso will not prevent the acquisition of land of the kind, but will only prevent it from being compulsorily acquired.
– If the proviso be passed, a special Act of Parliament will be required for every piece of such land it is sought to acquire.
– There are tens of thousands of acres in the National Park of New South Wales, and, if a small piece of land were there required for public purposes by the Commonwealth, a special Act would have to be passed if the amendment were accepted.
– Not necessarily.
– There would have to be a special Act if the State objected.
– Yes, if the State objected ; but what reason is there for supposing that the State would object if a piece of the National Park were absolutely necessary to the Commonwealth?
– The amendment shows that Senator Mulcahy evidently presupposes such a contingency.
– I do not presuppose such a contingency arising in the absence of substantial grounds. I know that Commonwealth Ministers, whether they be in Melbourne or at the future Capital, must be advised by their officers in various parts of Australia ; and my desire is to let those officers know that a check is imposed upon them. Under such circumstances, I believe the officers would seek for lands the acquisition of which would not involve any infringement of the public rights.
– Does the honorable senator not think that if the Government tried to infringe the public rights the question would soon be brought before the notice of Parliament?
Senator Lt.-Col. GOULD (New South Wales) [5.14]. - It is assumed by a good many honorable senators that, because the Commonwealth Parliament has control of the Defence and other great Departments, there should be the fullest possible means of acquiring lands which may be deemed necessary. We may concede all that; but I should like to quote the case of Svdney as an illustration affording some light on the other side. In. Sydney there is the Centennial Park, which for many years has been dedicated to public recreation, and is used and highly appreciated by thousands of people. The Defence Department might consider that a portion of the Centennial Park would be very convenient as a drill ground, or as a site for drill sheds.
– It would cost thousands of pounds to level the Park.
.- Considerable sums have been spent in making many portions of the Park level ; and it is not quite an impossible contingency that the Commonwealth Government may desire to acquire a portion of it for defence purposes. If the State Parliament were opposed to any alienation, the Commonwealth Government could, under the provisions of this Bill, declare their intention to take the land, and to run the risk of any trouble that might subsequently arise in the Commonwealth Parliament. In the Commonwealth Parliament there are members who represent States far removed from New South Wales, and who are not seized, as members from that particular State are, with the importance of this Park ito the public. ‘ Under such circumstances, the Government might, under the protection of Parliament, do an act which would really be ruth/ess to an individual State, and by that means a conflict might be brought about between the State and the Federal authorities. Let us take another joint of view, and ask ourselves whether there is any more reason to believe that a State would object to give up land which was necessary for defence purposes, than that the State would object if the defence were still under its own jurisdiction?
– Would the honorable senator’s line of reasoning not equally apply to the States when thev acquire land?
– No; each State has a separate Parliament, and if, in the opinion of the majority of members, anything wrong was done, the Government could be brought to book. The Commonwealth Government would not be amenable to the same tribunal as the State Government. The State Government would alwys be anxious to do everything possible for defence purposes, but they would have very intimate knowledge which might enable them to prevent the acquisition of land by the Commonwealth,, the parting with which might inflict an injury upon the State, which would not be compensated for by the advantage which its acquisition would be to the Commonwealth. For instance, if it were proposed to resume land near Sydney, Melbourne, Hobart, or Adelaide, for defence purposes, it would have to be remembered that it would be necessary not only for the defence of the Commonwealth, but for the defence of the particular city or port, and the acquisition of such land would be a matter of very great moment to the residents of the city concerned, who would probably be in the best position to decide on the wisest course to be adopted. They would be in closer touch with the matter, and under the amendment a means would be afforded to ascertain whether the State Government were willing to permit the acquisition of the land by the Commonwealth without allowing the Commonwealth Government to ride over them roughshod. We have here to deal with States Governments having rights over the Crown lands of the States and a Commonwealth Parliament having power to resume certain of those lands for public purposes. We do not desire to bring about any conflict between the two different authorities. These matters should be dealt with, if possible, in an amicable way. But
– The honorable senator does not believe that the Commonwealth would be arbitrary or aggressive?
.- I admit that the Commonwealth authorities might not desire to be so, but their action might be so regarded by the authorities of a State. We should not run that risk. I think that the amendment proposed is, therefore, reasonable, and should be accepted by the Committee. We must assume that a State Executive will be composed of reasonable men, just as we assume that the Commonwealth Executive will be composed of such men. Although the authorities of a State might, in the first instance, be disinclined to permit the resumption of certain lands, if they are shown that the resumption is absolutely necessary, and that there is no other piece of land equally suitable, they will naturally give way;
– Who is to judge that the Commonwealth Government cannot obtain another piece of land equally suitable ?
– I am contending that the Executive of a State should receive just as much credit for being reasonable as should the Executive of the Commonwealth, and just as much credit for being interested ‘in seeing that all that is necessary for public purposes is given effect to. If the Executive of a State is unreasonable, the Commonwealth will continue to hold the supreme power of compulsory acquisition, but I say that we have no right to assume that the authorities of a State will not act reasonably.
– We have had no evidence that they will in connexion with the Federal Capital Site.
– In connexion with this question of thejealousy of the rights of citizens, I think it can safely be said that the Federal Parliament, as at present constituted, is very much more likely to regard the rights of the public than is any of the State Parliaments I have in mind just now. But theamendment really bids for differences between the Federal and States Governmentsover matters in connexion with which theFederal authority must be supreme. If we accept the amendment we shall be adopting; a principle which I do not think has been adopted in any civilized country - the principle that a section of the people shall havethe right to block the interests of the majority.
– Not a section j the Government of a State.
– The Government of a section of the Commonwealth. We must remember that Australia is a Commonwealth composed of independentStates. The sovereignty in connexion with certain matters has, by common consent; been handed over to the Commonwealth. This is one of such matters. But socareful were the framers of the Constitution, knowing that there would necessarily, from time to time, arise questions in connexion with which there might be honest and intense differences of opinion, that this Chamber was created, entirely out of accord with the general spirit of representation throughout the States. It wasfelt that the creation of this Chamber would be a sufficient security, and I think it might reasonably be said that it should be. If the Federal Government, in a fit of thoughtlessness or recklessness, determine to take land, such, for instance, as the Centennial Park land, which, from the point of view of an observer, I have no hesitation in saying should never be taken from the people of Sydney without the very strongest possible justification, I should regard their action as improper. I say that as a representative of another State, and I should be prepared to say it in this Chamber if I were present when the Government proposed to take it, if it did not appear to be justified by the strongest possible reasons.
– Or the Botanical Gardens at Brisbane.
– Or the Botanical Gardens at Brisbane or at Melbourne, or in any other city in the Commonwealth. It is true that the matter would be dealt with ultimately by persons, the majority of whom had not that special interest which Senator Mulcahy conceives might exist in connexion with certain proposals. But they .would all have interests of a similar character, and thev would know that if they established a precedent by taking land of that kind recklessly, and without sufficient reason, it might be brought home to themselves immediately. They would feel the necessity of creating security against evil doing in this connexion, and’ that would make members of this Parliament as careful to see that a correct principle was followed in connexion with the acquisition of lands from another State, as they would be in connexion with the acquisition of lands from their own State. Even Senator Gould admits that in the ultimate the supreme power in this connexion must rest with the Commonwealth. But the honorable and learned senator suggested the adoption of the highly inconvenient method of passing a special Act of the Federal Parliament after a dispute between the Commonwealth and a State has arisen. It. would be very difficult to carry such an Act in the face of strong excitement.
– No, it would be only local excitement.
– Which would find its reflex here.
– It would be local excitement, with a strong local representation in this Parliament.
-Col. Gould. - But not with an overwhelming representation here.
– Decidedly not; but I am not saying that it would be impossible, but that it would be difficult to pass such an Act. There have been many instances ‘ in which brute force has been adopted, and justifiably adopted, in Parliament to prevent the passage of important measures. There have been instances in which men have justifiably stood up and exhausted the possibilities of their endurance.
– They did that not very far from here last session.
– They did it, but whether it was justified or not is another matter. It requires no very great effort to imagine conditions under which an extremely important and urgent measure of public interest might have to run the gauntlet of vigorous stone-walling in both Houses of this Parliament. I am pointing out that these are risks which we ought not to take. The risk of injury being done to a State is very remote indeed, though it may be sand that what is possible will sometimes happen. Senator Gould has said that, it is highly improbable that a State would resist the adoption of a reasonable course by the Commonwealth. But it is much more probable that the Parliament of a State, feeling that their direct, immediate, and1 cherished interests were being threatened, might determine to be unreasonable, than that the Commonwealth Parliament, without long prejudice to influence them in. connexion with the matter, would do what was unreasonable in the acquisition df land in the public interest.
– The excitement would never exist throughout a State. It would be confined to a particular locality in every (instance.
– It is quite possible. We know how these things are flogged in the press and on the platform.
– Does not the honorable senator recognise the possibility of danger from the want of knowledge or the indifference of the other States ?
– No. T0 start with, I think that the Commonwealth could not acquire a property about which there was such a strong feeling without some delay, and without a protest from those who conceived themselves to be injured. This Parliament, constituted as it is, will afford them an ample opportunity of presenting their case with the fullest knowledge. My experience of Parliaments is that if they err at all they are more likely to err on the side of consideration for sentiment, for love of fair play, ‘ although it is possible sometimes, in the desire not to do anything harsh or unfair, to prejudice an important interest. But in the main, Parliament is more likely to err in that direction than in the direction of undue or hastv action.
– The honorable senator can only speak for Parliament as it is.
– We have no right to assume that Parliament will ever get worse than it is, because the experience of the world is that it is getting more humane and more kindly as it gets older and better educated, which, perhaps, is the greatest factor of all in inducing reasonableness. The important consideration is that all civilized countries lay down the principle, as I think properly, and necessarily, that there may come a stage when the most cherished interest of the individual must give way to the interest of the whole community. Here we have a community of States, and while it is our duty, and I believe it will be our pleasure at all times, to give the greatest possible consideration to anv unit, there mav come a. time when it will be necessary, in the interest of the community, to disregard the sentiment, and possibly, in a degree, the interest of a unit for the sake of the whole people. We must keep that power. To carry the amendment of Senator Mulcahy would be to give it away temporarily.
– We would always have the power.
– But the delay which would be necessary in order to assert that power might be of such a character as to be extremely disastrous to the whole community. Living as we do in a belligerent age, we always have in our mind the necessities which the requirements of defence entail upon us. We could not wait.
– In a case of emergency, the Government would act at once.
-Not if the amendment were carried. Perhaps in a great emergency they might move without definite legislative warrant, but in an ordinary emergency they would not dare to move in distinct opposition to a clearly defined law.
-Col. Gould. - If it became absolutely necessary for the safety and protection of the country, it would be their duty to move.
– It would be quite impossible for the Government to move. There is no authority in a Britishspeaking community, not even in theCrown itself, to act in opposition to a distinct law. There are prerogatives, both of them being nominal rather than real, but there is no power to act in opposition to a definite Statute. If we were to accept the amendment, we should have to wait, perhaps in the direst emergency, for an Act of Parliament to be passed. I do not think that there is any person more intensely Federal than I am. I believe that the accomplishment of Federation was a great event. I feel that in our every act and utterance, we should always endeavour to keep in view that Federal sentiment. If it were possible to take all the powers that are necessary, without in the slightest degree expressing in our legislation a sentiment which was un-Federal, I should be glad to do so. But if there are any who consider it un-Federal for the “Parliament to take the strongest possible measures for national purposes, for the aggrandisement, or the protection, or the development of the whole Commonwealth, then I am afrai’d that in the interest of good government and perfect security, we must outrage their Federal spirit. I ventureto suggest, however, that they start with an extremely un-Federal sentiment.
Senator Lt.-Col. GOULD (New South Wales) [5.34]. - According to Senator Trenwith, in a general Bill of this character, this Parliament has the right to take powers which might be used to the great detriment of an individual State. If we get to a position when we want to use powers to the detriment of an individual State, it ought to be done, after receiving the fullest possible consideration, and under the authority of special legislation.
– It might in that case be done by an invader’s Parliament.
– The honorable senator says that if a great emergency were to arise, no Government would act against the law even in order to protect the Commonwealth.
– The Government would not dare to do it; they would have no power.
– They could utilize the land without legally acquiring a title, and adjust the compensation afterwards.
– That would be an act of internal war.
– Suppose the whole Commonwealth were in dangefrom an enemy. The. Government would have the right to take every possible step for the protection of the community, irrespective of any law upon the, statute-book. For far less reasons than those I mentioned, I have known Governments to do acts which were not legal, and then come down with a validating Bill. In each case the Parliament was so satisfied with the explanation of Ministers that it passed an Act of Indemnity.
– Can the honorable senator give an instance where, in the face of an existing law, that has been done? I admit that it has been done without the sanction of law, but I am not aware that it has ever been done in the face of an existing law.
– In the case of war, the Government can commandeer everything for the time being.
.- That is a position which a Government is entitled to take up. It is not reasonable, however, that the Government, upon the recommendation of the Military Department, should be able to take land for their purposes, against the interests of a State, unless it were shown to be absolutely necessary to do so for the protection of the whole community. We are told that this Parliament would act fairly and reasonably. I believe that it would as far as it possibly could, but there might be a large number of honorable senators who would not have that intimate knowledge of the circumstances which would enable them to exercise so sound a judgment as could a man representing the State concerned. I can very well imagine a case where a Minister might say, “We have received this recommendation from our military advisers - I am going to carry it out whether you like it or’ not.” And when the matter cam-e before the Senate, a great many honorable senators might say, “ We have confidence in the Government ; we believe that this act was done honestly, and in. the best interest of the community. Perhaps it was rather a serious step to take, but, nevertheless, we intend to validate their act.” The case of Sydney has been cited, but let me put the case of Hobart. What special knowledge would the representatives of Western Australia, or Queensland have in regard to the value of a place of recreation for Hobart?
– We know the necessity of places of recreation for all cities. “Senator Lt.-Col. GOULD.- Yes; but my honorable friends might say, “ The military authorities wanted this land, and it was well that they should get it. The people of Hobart can acquire some other land for the purposes of a recreation ground.” The ground might have been in their possession for a long while. It misfit have been endeared to their memories, and eminently, suitable for purposes of recreation : and not far away there might be other land which would have been just as suitable for military purposes. This afternoon, Senator Guthrie pointed out how valuable the Park Lands of Adelaide are, and how ruthlessly they have been interfered with at different times, and he entered a protest against this interference.
– They ‘never have been ruthlessly interfered with.
– Yes ; by the State Government when Senator Playford was in office.
.- The State Parliament had power to deal with the Ministers, and if it did not exercise its power, the assumption is that a majority of its members thought that the resumption of the land was reasonable. Suppose that the Government of the Commonwealth thought fit to take a large area of this land for military purposes exclusively, when there. was in the neighbourhood abundance of land which would suit just as well. Would that be a fair proceeding? Would it not be entirely to the injury and detriment of the people of Adelaide?
– It would not be fair, and, therefore, it would not be done. It is unreasonable to assume that it would be done.
– Then what necessity’ is there for this power of compulsory resumption ?
– Because it is more in accordance with facts to assume that a State would be unreasonable than that the Commonwealth would be.
-If you can show to a State, from the reports of military officers, that a particular piece of land ought to be resumed for military purposes, it will undoubtedly be granted. If the State itself had the control of the Military Forces within its own borders, it would adopt the same course. The position is that here we have one Parliament endowed with certain wide powers, and other Parliaments enjoying, what are termed sovereign rights. We therefore have to be very careful that we do not trench upon the powers of the States, just as we are careful that the States do not trench on our powers. I do not think that any case can be quoted where the relative powers of two authorities are such as those possessed by the Commonwealth and States Governments in Australia. We have to be careful in laying down lines for our legislation to avoid a conflict between the Commonwealth and the States.
– This amendment would operate as a ibid for friction.
– To my mind, it would operate in the contrary direction. It would be, in effect, a declaration that we recognise the rights of the States to the fullest possible extent, and will try by’ mutual agreement to arrive at a settlement whenever we think it necessary to make an incursion upon public land.
– The States have no rights over dedicated lands.
– That introduces another question. The amendment of Senator Mulcahy will tend to prevent friction, because it recognises the great rights and interests of the States, and will compel the Commonwealth Government to do everything possible to come to an agreement. Of course, if it is found that a State is unreasonable, and that the Commonwealth must have a piece of land for public purposes, the Federal Parliament can step in and take it.
– And waste a session over it.
-We shall, perhaps, waste session after session if we cause friction between the Commonwealth and the States. Moreover, we shall be weakening that Federal sentiment which, I am sure, Senator Trenwith and other honorable senators desire to see extend in this Commonwealth.
– I hardly think that, in adopting the role of prophet, as Senator Gould did in his concluding remarks, he was justified by anything that has taken place within the last five years.
The Commonwealth has power under the Property for Public Purposes Acquisition Act to acquire lands, whether dedicated or not, either by agreement or compulsorily. So far as I know, there has been no case since the Commonwealth was instituted where friction has been caused, nor do I think there is any ground for apprehension as to the Commonwealth pursuing any different policy in the future. But we must have this reserve power.
– This is a power .to acquire land at all times ; it is not merely to apply to emergency occupation.
– We must have a reserve power for compulsory acquisition in respect of all land, whether belonging to an individual or to a State, or whether controlled by a Government, a municipality, or any other body. One reason which I think will appeal to Senator Mulcahy is that, if we have what may be termed a divided authority, it will be considerably to the disadvantage of the Commonwealth. We will assume the case of a park which has been dedicated to the public for recreation purposes. Suppose that the Commonwealth desires to acquire a portion of that land. Under existing circumstances, the Government would go to the persons who hold the title to the land, and negotiate with them for its acquisition. If the negotiation failed, we could exercise our compulsory powers. But if this amendment were carried the Commonwealth would have to go, in the first instance, to the State Government. The State Government would naturally consult the local governing, body, or other1 authority, in which the land was vested. That authority would not unnaturally be inclined to say, “ We have no power to part with this land ; if you like, as a State Government, you can do it “ ; or the controlling authority might say that it was absolutely disinclined to dispose of any portion of the property. Then the State Government would be left in a most unenviable position. On the one hand, it would have the Commonwealth Government saying that it must have this land for public purposes, and on the other hand, it would have a local authority in conformity with a not uninfluential body of public opinion influencing it in an entirely different direction. Any State Government would rather that the local municipal council, or other body in whom the land was vested, should take the responsibility. I am certain that if Senator Mulcahy were a State Minister of
Lands, as he has been, and a question of this kind came before him, he would prefer that the case should be settled by the local authority.
– I should not care at all.
– I do not think that any State Government would be obliged to us for saddling it with such a responsibility.
– What is the State Government there for?
– It would not be a pleasant thing for the State Government to stand between the Commonwealth Government and the local authority in a case like this.
– It should take the responsibility and protect public rights.
– If we set up a divided authority we shall find that the Commonwealth will be unable in very many instances to come to a satisfactory arrangement with regard to the acquisition of land. Naturally a State Government will not like to run counter to the express wish of a local governing authority controlling land which has been dedicated for public recreation purposes. I do not for a moment wish it to be supposed that it would be the desire of the Commonwealth Government to resume dedicated land for public purposes whenever it was at all possible to obtain other land that was equally suitable. There exists in all the States of Australia a very strong respect for the rights of the citizens in the enjoyment of public lands. Naturally a Government would not desire to run counter to that feeling. On the contrary, the desire of Governments has always been, so far as I am aware, to try to avoid taking land of this character for public purposes. It will be remembered, for instance, that some years ago it was suggested in Svdney that a portion of Hyde Park should be appropriated for a railway station. Honorable senators probably recollect that the very suggestion evoked a storm of opposition. I doubt very much if such a course was ever seriously contemplated bv any Government, or if it were, would be persevered with. The general spirit in every State of Australia is directly in favour of preserving such lands for the people. That is the feeling that I believe will always exist in this community, and every Government, Common wealth or State, will be bound to pay the utmost respect to it.
– I was very much impressed, in listening to the debate, with the idea that some honorable senators must come from a part of the world where it is said that every body is “agin the Government.” Statements have been made that convey the idea that every Government should always be watched, with the suspicion that it is going to perpetrate a deed that, will be abhorrent to almost every one in the country.
– Who said that?
– Senator Gould has been saying all the time that we aretrying to prevent the Government from doing something. If that be so, we must be under the impression that the Government is going to do something wrong. Senator Mulcahy’s amendment is in the other direction. If an amendment of this description were carried, it would be the duty of the Government to drop the Bill, especially if there was any danger of its adoption in another place, seeing that all the authority that is required is provided in existing legislation. It has already been explained many times that the object of the Bill is to obviate the necessity of resol ting in every instance to compulsory measures ; and the Government always have the opportunity to negotiate with the States. Only when a State and the Commonwealth could not come to terms, would it be necessary, under the Bill, to put the compulsory provisions into operation.
– That strengthens my case.
– Is ‘it not sufficient that the States should have the opportunity to come to an agreement with the Commonwealth for the transfer of land, whether that land be dedicated or not? If a State would refuse to execute a transfer under existing conditions, I am sure it would refuse if negotiations were entered upon under the amendment proposed by Senator Mulcahy.
– The amendment invites the States to oppose the transfer of land.
– That is so. Senator Trenwith referred to the fact that if the amendment were carried, a special Bill would be necessary in each case; but what might happen in a State Parliament? A minority in a State Parliament might prevent the State Government from agreeing to any transfer.
– The matter would not be referred to the State Government.
– Of course, the matter would not be referred to the State Parliament if the State agreed to the transfer ; but such a reference might have to be made. In negotiations between a State and the Commonwealth in regard to land, on which there are certain reservations, an arrangement might be arrived . at by which the citizens could retain all the rights they possess at the present time; but if the Commonwealth were forced into compulsory acquisition no rights of the kind could be retained. Senator Mulcahy doubtless thinks he is protecting the rights of the people; and he is, I feel, acting ir. good faith. The honorable senator, however, appears to have a fear in his mind that something may happen; but I am sure that under the Bill- nothing could occur which would prove objectionable to the people of Australia. Indeed, the people would not tolerate any transfers of an objectionable character: and, therefore, nothing could happen that would be detrimental to the interests of the community. Many honorable senators have contended that State interests ought to ‘be paramount ; and so they are, in reference to the State Parliament and the State Government; nevertheless, the interests of one State might not be the interests of the whole Commonwealth. We know the bitterness that arose between the States and the central authority in the “United States at the time of the Civil War : and I ask whether (here is an’ guarantee that similar bitterness mav not arise in Australia? Under such circumstances a provision such as that proposed bv Senator Mulcahy would have no effect. The Bill presents every opportunity for negotiations; and we ought to reserve to the Commonwealth the ultimate power to compulsorily acquire land.
– I cannot understand why it is that some honorable senators seem to assume that in any probable conflict between a State Government and the Commonwealth Government, the latter must of necessity always be in the wrong.
– No one vet has spoken on that assumption.
– That was the whole tenor of Senator Gould’s remark’s. The honorable senator assumes that the
States Governments are the defenders of the public weal, and that the ruthless Commonwealth Government are always in the wrong.
– There is a good deal of truth in the assumption.
– That means that six people are more likely to be wrong than is one person ?
– The six people do not have anything to do with the matter, because five stop outside, and only come in to vote.
– The Commonwealth Government must of necessity have the welfare of the public as much at heart as have any State Government, and must be the best judges as to the necessity for acquiring a particular piece of land for Federal purposes. Any sensible man will agree that the public lands should be devoted to the most important purposes; and it- must not be forgotten that, in any case, the land is not taken away from the people, though it may be turned to a different use. There ought to be some predominant authority, and the Constitution provides that wherever the States laws and the Commonwealth laws come into conflict the latter shall prevail. All this is provided for in the Bill, and the amendment is altogether wrong, seeing that it provides that the law of a State shall prevail.
– The law does not provide anything of the kind.
– What I stated is, I take it, the real meaning of the amendment. If public necessity demands, the Commonwealth Government should have the power to take over any reserves and devote them to the more important service.
– I cannot follow the argument of Senator de Largie. If I were a member of a State Parliament, and this question arose, I should oppose, just as strongly as I do now, any proposal to resume reserves which have been dedicated to the public for the purposes of recreation and amusement. We in Australia have left very little land for the benefit of the public generally, and there is a strong feeling against using for speculative purposes any land that has been dedicated to the use of the community.
– “ Speculative purposes ‘ ‘ !
– Senator McGregor knows that the present leader of the Senate. when Commissioner of Crown Lands in South Australia, proposed to divide the National Park amongst a lot of fruitgrowers.
– The National Park was Crown land then.
– The State Parliament, however, passed an Act which prevented the National Park being so used, and dedicated it for all time to the public. By the Bill we are attempting to undo what the South Australian Parliament did in 1893.
– There is no comparison between the positions.
– The positions are identical. By this Bill we say that what the South Australian Parliament did was wrong, and that there shall be power to take that land for some purpose other than that to which it was dedicated. We ought to provide that a dedication of land for public purposes shall be honoured.
– So it will be; ‘there has always been the power to take such lands, but thev have not been taken.
– That is because circumstances have not arisen to make the acquisition of the lands desirable. We are now passing legislation which may find a place on the statute-book for hundreds of years.
– Legislation, with the same underlying principle, will occupy a place on the statute-book for thousands of years.
– I hope it will never be provided that the rights of the people over the reserves must be surrendered, because those lands cannot be put to better purpose than the promotion of the health and the recreation of the people.
– We cannot possibly know what mav happen! in the future.
– Day after day inroads are made on the public recreation grounds, and to such an extent has this been the case in South Australia, that a Park Lands League has been formed to protect the public interests.
– To protect the public interests from the State Government.
– What is the difference? I have already pointed to the action nf the leader of the Senate when he was Commissioner of Crown Lands in South Australia.
– I never proposed to take any of the Park Lands.
– The honorablesenator, as Commissioner of Lands, proposed to take the National Park.
– I never proposed to take the National Park - it was Crown land at the time.
– The people of South Australia returned a Parliament which dedicated the land to the public, and thus prevented the Commissioner of Lands from dealing with it in the way he desired.
– I did not object to the action of the Parliament. I desired to take only a portion of the land, in order to place working men on it.
– Not working men, but apple growers. The position I take up now is that the people of South Australia have spoken with no uncertain voice regarding the preservation of lands dedicated for public purposes.
– I have never proposed to take an acre of land dedicated for public purposes.
– I should be a traitor to the people of the State that has sent me here if in this Bill I did not endeavour to provide for the protection of their public lands. A Select Committee of the Legislative Council of South Australia sat to investigate this matter some three or four years ago.
– And they gave a slice of land to the Cricketing Association.
– They did nothing of the sort.
– If a piece of land at present held as a public recreation reserve were absolutely necessary for the construction of a fort for the defence of Adelaide, does the honorable senator think that the Commonwealth should not have the power to acquire that land?
– Part of the Park Lands at Adelaide are used for racing purposes.
– Because they have been absolutely filched from the people. That is the case ‘not only with respect to the race-course, but also with respect to the cricketing oval. It was proposed a few years ago to enlarge the cricketing oval, and a special Bill was introduced into the State Parliament for the purpose. The House of Assembly voted against a proposal to add a few acres to the oval, as did also the Legislative Council, but then a Governor’s message was sent down - a course which is almost unprecedented, even in the House of Commons - and in the last days of the session an amendment recommended in the Governor’s message was rushed through Parliament for the purpose of adding four acres to the area of the oval.
– That shows that we cannot trust the States Governments.
– No; and we cannot trust the Commonwealth Government. We must have a provision in this Bill preventing the acquisition of lands dedicated to the public.
– Then the honorable senator is not supporting the amendment.
– I am not sure that I quite understand its scope; but I propose to support the amendment if I cannot get something better. I wish to put my position clearly. I desire that all lands dedicated to the public for recreation purposes shall be kept for all .time.
– Let the people have lands for recreation, and let our cities lack a means of defence?
– If we are to enter into the question of defence, I think it will have to be admitted that what we require are not forts, but floating batteries.
– - Let us fiddle while Adelaide burns?
– There is no fear that Adelaide will burn, and I do not believe that Senator de Largie could fiddle anything like a decent tune if he tried. I am surprised that honorable senators should be prepared to hand over public recreation reserves, even for defence purposes.
– The land might be required for wireless telegraph stations.
– It might be required for hundreds of purposes other than defence.
– - It might be required for a race-course.
– Not bv the Commonwealth.
– We do not know for what the Commonwealth might require land. Senator Trenwith says that it might be required for hundreds of purposes, but he has not enumerated them.
– Give me time.
– I enter my protest against any proposition that lands dedicated for public purposes shall be made use of for any other purposes than those of providing for the recreation and conserving the health of the people.
.- Senator Guthrie proceeds upon the principle that once lands have been reserved, the reservation shall not be subject to revocation, and the honorable senator ignores the fact that, in almost every session the States Parliaments are engaged in correcting some mistake made in the past which requires the revocation of previous reservations.
– The honorable senator might put the other side, and say that almost as frequently where lands have been resumed, it is subsequently found that the resumption has been a mistake.
– We shall go on making, such mistakes while the world lasts..
– Precisely. The amendment is founded on what I believe to be an erroneous idea that the Commonwealth Parliament is likely to abuse its powers. Is it to be supposed for a moment that the Government of the Commonwealth wil] not have as high a regard for public rights and interests as any State Government will’ have ?
– No one has implied that they will not.
– This amendment necessarily implies that. It means that the Commonwealth Government cannot be trusted with the power of resuming land dedicated for purposes of recreation without the consent of a State Government. Under the ‘Constitution we have the power absolutely to resume any land if the public rights and interests demand that we should do so. The only justification for our resumption of land’ in which public rights already exist would be that the greater public rights and interests of the Commonwealth demanded such resumption.
– In which case we should exercise our rights.
– In which case we could not exercise them under the honorable senator’s amendment without the consent of a State Government.
– The amendment does not take away our constitutional rights at all ; though it might involve the delay of a month or two in carrying out the resumption.
– In the terms of the Constitution we are at liberty to acquire property “on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.” That is to say, we have an unqualified right to resume lands.
– Under the Constitution we are given an unqualified power to resume, and I ask Senator Mulcahy why, in the circumstances, we should take but a limited right of resumption? Does not that necessarily imply that we cannot trust ourselves? C)ur duty is to take all the power given us by the Constitution.
– Surely ve have the right to restrict the Government to a certain extent, if we wish to do so?
– I do not suggest that the amendment is ultra vires, but I say that when we have a complete right of resumption without qualification we mistrust ourselves if we do not exercise it. I contend that we are just as capable judges of the public rights and interests as are the authorities of the States, and we should only exercise our powers in this connexion where the greater public rights and interests of the Commonwealth demand its exercise. The amendment would not achieve all that the honorable senator who has moved it desires. It reads -
Provided that nothing in this Act shall authorize the acquisition by the Commonwealth otherwise than by agreement with the State of any Crown land of a State which is dedicated for the recreation or amusement of the public.
I remind Senator Mulcahy that surrounding Melbourne there are many beautiful reserves dedicated to the public for recreation purposes, but in many cases they are not Crown lands. Some are vested in municipalities, others in municipalities in conjunction with the Board of Land and Works, and others again in trustees. As the amendment stands, it would affect but a limited number of the areas reserved in Victoria for recreation - purposes, and if it is to achieve what the honorable senator has in his mind, it must be substantially altered. I would seriously urge honorable senators not to limit the powers of the Commonwealth in the way proposed. Our present law provides for unqualified1 resumption, and the principles embodied in our present law, and proposed to be embodied in this Bill, Have been in force throughout the British Dominions for something like 100 years. In the circumstances, it is very late now to bring about a limitation of the power of the Crown to resume lands in the public interest.
– I believe this will be the only instance of the kind.
– We have often to complain that the Federal Parliament is subjected to criticism of a parochial character by persons outside, but, in this instance, the arguments they use are being repeated in this Chamber. It is being contended that in these matters we can trust the States Parliaments, but that we cannot trust the Commonwealth Parliament.
– There is no question of trusting this Parliament, because the alternative would be to bring down a special! measure which this Parliament must approve.
- Senator Millen is aware that in most cases that remedy would le found1 to be impracticable, and certainly by the time a measure would be passed the urgency of the action proposed might have passed away. The arguments which have been used by Senator Guthrie are destructive of the position he took up, because he showed that a State Parliament, which he desires should be arbiter in these matters, had abused its powers in a most unwarrantable manner. The Federal Parliament has possessed” this power for some years’, and the honorable senator brought forward no case in which there has been any abuse. Yet he proposes to transfer the power from this Parliament to the States Parliaments, which he says have repeatedly abused it. I remind honorable senators that the Commonwealth has only three Departments which are likely to require land for public purposes, whilst in the States there are many Government Departments requiring land. The States Governments are therefore verv much more likely to trench upon the; rights of private citizens than is the Commonwealth Government. The obligation to defend the Commonwealth is thrown upon the Federal Parliament, and in carrying out that obligation it may become necessary that we should take land which, in the opinion of people in the particular locality, might be usefully devoted to other purposes. The people of Australia have imposed upon us the obligation of carrying out the defence of the Commonwealth, and in doing so our power should not come in conflict with that of a local authority in connexion Avith the acquisition of a piece of land. The amendment proposes that we should hand over the right to deal with that piece of land to a State Parliament, which has no obligation or responsibility in connexion with the defence of the Commonwealth. It is clear that the position taken up by Senator Guthrie is untenable, and I am surprised that any honorable senators should in this matter propose to put the States Parliament in a position superior to that of the Federal Parliament.
– We do not propose to do so, but that, failing an agreement between a State authority and the Federal Government, we should legislate by a special Act>
– Senator Trenwith pointed out that there might be influences at work which would make a State Government unwilling to move in these matters. Local influences might have considerable weight with a State Government, and whilst thev might recognise the necessity for the acquisition bv the Commonwealth of a certain piece of land, thev might be loth to give their consent lest by doing so they should come into conflict with local interests. In some instances the States Governments delegate their powers, as in the management of railways, to Commissioners. I am not sure, but I believe that in such cases the Commissioners are given control over the lands on which the railways are constructed.
– They are practically the property of the Commissioners.
– There was great difficulty experienced in Kalgoorlie in getting land for a bonded store from the Railway Commissioner in Western Australia.
– I know of another case of the kind at Fremantle. The Railways Commissioner was in possession of certain tend eminently suitable for a Customs House, and though the land might not actually be put to any use, if the State Government in such a case were applied to. they would refer the Federal Government to the Railways Commissioner. He would look at the Question from the point of view of the manager of the railways, and though, the land might be required for purposes of defence, he would consider the possibility qf its being required for railway purposes, probably at some far-distant time. Honorable senators must see that ulti mately in these instances the States Governments would not have the settlement of the question at all. All these objections can be urged to the amendment, and surely in this matter the Federal Parliament can be trusted to see that no injustice, which can be avoided, is done to local interests.
Sitting suspended, from 6.34. to 7-4-5 p.m.
– I ask leave to withdraw my amendment, for the purpose of moving another. I have to thank Senator Best for pointing out to me that it only applies to land which can be considered as Crown land, and that therefore, if carried, it would not effect the purpose I have in view.
Amendment, by leave, withdrawn.
– I move -
That the following words be added: - “Provided that nothing in this Act shall authorize the acquisition by the Commonwealth otherwise than by agreement of any land which is reserved or dedicated for the recreation or amusement of the public, and which has been so reserved -or dedicated for a period of at least seven years.”
Throughout the .debate, which has been very interesting to me, there seems to have been in the minds of some honorable senators a disproportion as to what the full effect of my proposal is. Under the Constitution, the Commonwealth Parliament has absolute power to acquire all the land which it may deem necessary for the purpose of carrying on the various Departments which have been handed over from the States.
– And this amendment would impose a restriction.
– We are now providing the machinery for the exercise of that power. Surely it is within our right not to stop the Commonwealth from acquiring certain lands, because that could not be done, but to restrain its action to some extent, and make it difficult to acquire lands which are used for public purposes, and which we are all agreed it is desirable should not be interfered with without strong reason. The reason why I spoke of a disproportion in the minds of some honorable senators is that the Commonwealth is taking power to acquire any portion of a .huge territory of, I understand, about 3,000,000 square miles. What are we seeking to reserve from the operation of the Bill ? Comparatively speaking, a few acres. We are only trying to reserve lands which are used particularly for the purposes of recreation and public health. Unfortunately, in a great many Australian cities, when land was plentifulenough, there was an absence of foresight, and public reserves were rather too limited in area. That in itself is, I think, sufficient justification for trying to safeguard such areas as have been reserved. It is utterly wrong to suggest that we are in any way showing a want of confidence in the present or any future Government. There is no such idea in our mind. In the immense territory of the Commonwealth, it will be necessary, from time to time, to deal with locations of which, possibly, even the representatives of the State concerned may know nothing.
– By the term “ the State “ does the honorable senator mean the Government, or the Parliament, or both ?
– From time to time the Commonwealth Government will have to deal with the acquisition of certain areas in distant places, of which they will have no personal knowledge. In view of our immense territory, it is quite possible that even the representatives of the States concerned may have no knowledge of these locations, and in all good faith the Minister will accept the report of one of his officers, as being the best possible authority whom he can get to advise him. It is in regard to the acquisition of land for defence purposes that I particularly fear that, from time to time, some trespass may be made upon the public domain which is not really necessary. Very frequently there is a disposition on the part of Defence officers to try to suit their own convenience, and in doing that they may commit a very grievous public wrong. It must be borne in mind that all the time we shall have the power to acquire any land which may be needed. The only objection is that if the amendment were accepted, it might delay the acquisition of a certain piece of land. It might be that the Commonwealth would not be able to arrange by agreement for the acquisition of the land, and in every such case the Commonwealth Parliament would have the right to assert its power.
– Is the agreement to be made with the Government or the Parliament of the State?
– With the owners, or the trustees.
– In his amendment the honorable senator does not say that.
– The first amendment has been withdrawn in favour of another.
– Under my amendment, if an agreement could not be come to between the Commonwealth Government and the State Government, or the trustees of any land, then, if it were really necessary, Parliament could always exercise its power of resumption.
– The trustees would always resist.
– The honorable senator is beginning to prophesy.
– We have a lot of experience to go upon.. We know that trustees do not like to lose any land.
– I know that there is a tendency on the part of not only trustees, but everybody else, not to part with their land too readily, and to make the best bargain they can. In this case the application of the restriction would be comparatively limited. It would merely postpone for a time the acquisition of a piece of land. Senator Playford has reminded the Committee that if land is required for any emergent purpose of defence, it can be obtained by him immediately. But we are now dealing with a measure for the permanent acquisition of land. I believe that the amendment, if adopted, would do no harm, and that in many cases it would prevent the Departments from taking land which ought not to be taken.
– Certainly, Senator Mulcahy has limited the scope of his amendment, but I do not think that he has improved it. Under the previous amendment, State land could not betaken otherwise than by agreement with the State, but the amendment as altered says that it cannot be taken otherwise than by agreement. With whom the agreement is to be made is not stated.
– This amendment does not deal onlywith Crown lands.
– That does not matter. In the present amendment there is practically no direction as to whom the agreement is to be made with.
– There is no direction anywhere. The agreement is to be made with the owners of the land whoever they may be.
– The honorable senator lays down the proposition that any land which has been dedicated for the purpose of public amusement or recreation shall not be taken without an agreement. Is it to be an agreement made with the State Government?
– The honorable senais overlooking a previous clause.
– If the agreement is not to be made with the State Government, then the honorable senator is seeking to bring, in irresponsible bodies, and the Commonwealth would have to make an agreement with perhaps a racing club or a cricket club. Questions of national moment would have to be determined by an agreement between a cricket or football club and the Commonwealth Government. That would reduce our obligation to an absurdity, and it is the only construction which can be put on the amendment. I wish to see the agreement made with the State, but the honorable senator has omitted the words “with a State,” and used the vague term “ by agreement.” In the circumstances, one can imagine what would happen if the amendment were carried. 1 am sure that it will not be accepted in its present form.
– Senator Pearce arid others who have spoken in a similar strain, insist that if we were to adopt the amendment, we should necessarily cast overboard certain powers which are conferred upon the Parliament by the Constitution. We should do nothing of the kind. The Constitution gives the Commonwealth ample power to resume any land it may require for the purposes for which it was established’. No Act of this Parliament could take away that power.
– What becomes of the force of Senator Mulcahy’s argument, then ?
– I am surprised that Senator Pearce has not observed that Senator Mulcahy does not say by his amendment that the Commonwealth is not to have the absolute right to take any piece of land which, it may require. What he says is that land shall not be taken by an act of administration, but that the Government shall bring down a special Bill and ask for the sanction of Parliament in which Senator Pearce has so much confidence.
– What a splendid proposition ! If the Government should want to resume a piece of land they could not take any step until Parliament meets.
– In this Bill we have been invited to place in the hands of the Government full administrative power to resume the particular lands which Senator Mulcahy seeks to exclude from its operation, an’d he proposes that such lands may only be compulsorily resumed by the Commonwealth under the authority of a special
Bill. What becomes, then, of the argument we have heard here not once, but a dozen times, that we are asked to throw overboard a power which the Constitution, confers upon the Parliament, or that weare seeking in some way to place the States or other authorities in a higher position than that of the Commonwealth ? So long as the Constitution remains unaltered, theCommonwealth must be paramount.
– But the honorable senator admits that if the amendment werecarried, a cricket club could stop any administrative action.
– Still, the honorablesenator would put the Commonwealth inhobbles.
– I would only put the Ministers in hobbles.
– They represent the Commonwealth for the time being.
– Has the honorable senator such ample confidence in the Administration as he appears to suggest? Let me remind the Committee of a few voteswhich have been cast here quite recently. Had the honorable senator ample confidence in the Administration with regard to bringing the Papua Act into force and appointing a Lieutenant-Governor?
– During a recess we must all have confidence in the Government.
– On that occasion the honorable senator voted in a way which showed that he had not an atom of the confidence about which he has talked so muchtoday.
– I have a discretionary confidence.
– How did the honorable senator vote not long ago on a proposition relating to the appointment of a HighCommissioner? Did he show his ample confidence in the Administration of the day then? No; he showed that he was notprepared to trust them to make a single appointment.
– But the honorable senator did.
– Of course I did. I voted against the proposition because I am a believer in the doctrine of responsiblegovernment. It is not a correct representation of the case for the honorable senator to say that if the amendment Were carried, it would necessarily deprive the Parliament of any power which it now enjoys under the Constitution. It would still have that power to exercise whenever it liked. It could authorize the resumption of land, whether the amendment were carried or not. So far as final power was concerned, it would be in exactly the same position as if the Bill were passed in its entirety. The objection which I take to the the proposal is this. It will be within the memory of honorable senators that when, the second reading debate was in progress it was urged with considerable force, and at some length, by Senator Symon that it would have been very much better to make this a Bill simply providing machinery for the resumption of land for public purposes, but not giving the power to resume. He urged that the resumption power should be exercised in each particular case by means of a special Bill. I should have been very pleased if the Minister had seen fit to adopt that suggestion, and to recast the measure, bringing down a proposal containing machinery -clauses only. When an act of resumption became necessary in any particular case a special Bill could have been introduced. But that suggestion has not been accepted. I understand that the Government does not “intend to adopt it. Apparently the Senate -does not desire it, because it was not supported, except by a few honorable senators -on this side of the chamber. Therefore, having in one Bill both machinery for the resumption of land and power for resuming it, and the Senate having adopted the >two principles by clauses which have been passed, it seems to me that it would not “be wise to make a,special exception in one particular case. And that is what we are mow asked to do. Senator Mulcahy asks us to provide that when it is desired to resume a portion of a public reserve a special Act of Parliament shall be passed. That is my objection to his amendment. I “believe that we are making a mistake in having the machinery and the powers provided for in one measure. But the Committee having accepted the proposal of the Government in this respect, it seems to me that we should be inconsistent in adopting an amendment which would differentiate between lands held by trustees - it mav be the trustees of a cricket club or a national park - and lands held by any one else, or for any other purpose. If there is to be any difference at all in our treatment of -owners of land, that difference ought to be with respect to Crown land and the land of individuals. But we do not propose to -differentiate between the States and private owners. If we are going to treat a State
Government as we treat a private owner, there is no reason why we should make a difference with respect to trustees. If the amendment were on solid ground at all, it would provide that all States land should be dealt with by a separate measure. But Senator Mulcahy proposes to allow the Commonwealth to take any portion of the lands of a State. He accepts the principle that there should be no exception in that respect. But now he seeks to make an exception in the case of lands controlled by trustees for public purposes. It seems to me to be somewhat like straining at a gnat and swallowing a camel to give power to the Commonwealth to resume States land, and at the same time refuse power to the Commonwealth to take a cricket pitch.
– That is not the point. Senator Mulcahy proposes to make an exception in the case of recreation reserves.
– If the Commonwealth Government has power to take all the Crown land which it requires from New South Wales, why say that it shall not have the power to take an acre of the National Park? It seems to me that, having accepted the principle that machinery and power to resume should be included in the one measure, and having further agreed to give the Commonwealth Government full power to resume States lands, there is no logic in saying that the Commonwealth Government shall not have a similar power to take lands controlled by local bodies. For that reason I shall vote against the amendment.
Senator Lt.-Col. GOULD (New South Wales) [8.6J. - It seems to me that Senator Millen has failed to realize the difference between “the lands -which are ordinarily denominated Crown lands and lands which are dedicated for a specific and special purpose in the interests of the people of a State. There is an immense difference, to my mind. While it is perfectly true that in this Bill we contemplate allowing the Commonwealth Government to resume, by compulsory appropriation, any Crown land that it sees fit, yet we know that the bulk of the Crown lands in every State are what are known as waste lands. That is to say, they are lands that are not being used for any specific purpose. This amendment is only intended to meet a case in which a State has set apart specific lands for the purpose of recreation or health for the benefit of the people of a State. I cannot, for the life of me, see why the views expressed by Senator Millen in the early portion of his speech, should have caused so much disturbance in “the mind of Senator Pearce, considering that he now tells us that he proposes to vote against the amendment. I contend that the case in favour of Senator Mulcahy’s amendment is a very strong one. I admit at once that some difficulty may arise in connexion with the wording of the amendment. It is certainly open to exception as to the party with whom the Commonwealth is to make an agreement. Has the agreement to be made, say, with the trustees of a cricket pitch? Has the Commonwealth Government to say to the trustees, “ We should like this land, and we know that we cannot obtain it without your consent?”
– The Government has to do that with every other owner.
.- With every other owner the Government has the right of compulsory resumption. It can say to the private owner, “ We covet this vineyard of yours ; cannot we make some arrangement about it ?” The owner may say, “ I am not going to part with it.” Then the Commonwealth Government can say, “ It does not matter whether you like to part with’ it or not, we are going to take it, and if we cannot get it by arrangement, we will take it compulsorily.” I do not want the Government to be put in that position in negotiating for the acquisition of land which has been dedicated for public purposes. I think that it would be a fair thing to say in the amendment that nothing in the Bill shall authorize the acquisition by the Commonwealth otherwise than with the consent of the State, of any land which has been dedicated or reserved.
– I will accept that suggestion.
.- Then it would be necessary to obtain the consent of the State. If the people concerned did not see fit to agree to the sale, the State Government would have power to resume compulsorily. But if the State Government said, “We will not give our consent “ the Commonwealth Government would have to deal with the matter specially and specifically, by an Act of Parliament.
– Unless we embodyin this measure power to compel a State
Government to abrogate a dedication, the Commonwealth will have to do it by Act of Parliament.
– Assuming that that contention is correct, the State Parliament might say, “ We are satisfied that it would be a reasonable thing for the Commonwealth Government to acquire this land,” and the Commonwealth would then be entitled, if it were necessary, to acquire it by compulsory resumption - that is to say, if the land were so dedicated that the. State Parliament could not abrogate the dedication without an Act of. Parliament.
– This amendment would necessitate an Act of the Federal Parliament.
.- Yes; in certain extreme cases. Take a case in point. I believe that . the Defence Department is very anxious to obtain a range for artillery practice. It will require, probably, six or eight miles . of country to make the range safe. If a stretch of eight miles, together with a. proportionate width, were taken out of the National. Park, Sydney, it would deprive the public of an enormous slice of that territory. But we know that there is a great quantity of Crown land - it may be a little further away - which it might be more convenient for the people of New South Wales that the Commonwealth Government should acquire. I do not assume that the Commonwealth Government wishes to do anything that is unreasonable, but, at the same time, I do not propose to rut it in the power of the Government to take land which it is undesirable it should take, having, in view the interests of a State. I consider it to bewise to safeguard those interests as far as we can, having due regard to the welfare of the. Commonwealth as a whole. I trust that the Committee will see that there is some merit in Senator Mulcahy’s amendment, and will vote for it. If objection istaken to the drafting, it will be a very simple matter to recommit the clause afterwards, in order to put it into proper form. Personally, I think that the terms of theamendment are open to objection. But the principle is sound, and if a little consideration were given to it bv the Parliamentary draftsman, he would be able to put it into proper shane. I ask honorable senators not to be led away by objections to the wording of the amendment, but to> regard it as a matter of principle bv meansof which we can safeguard States interests- and prevent any possibility of friction and collision occurring between the States and the Commonwealth.
– It seems to me that the arguments of Senator Gould would apply against any power that it was proposed to take by Statute. It may be said with regard to any proposed power, “ Oh, you may use it wrongly.” That is the whole substance of the honorable senator’s argument. He does not even assume that it is at all probable, but that it is possible, that the power will be wrongly used. There is no power that may not be abused.
– I ask the Minister of Defence whether, as a matter of fact, there has not been a recommendation to take a portion of the Centennial Park Sydney, for military purposes?
– Not that I know of.
– If there were such a proposal, and it was undesirable, I do not think that this Parliament would permit the Ministerto do it.
– We could not stop it.
– I venture to say that we could.
– On the principle that the Government is responsible to Parliament.
– Decidedly. If the Minister of Defence actually consummated the administrative act of taking land and issuing the Gazette notice, this Parliament could1 still prevent the actual acquisition, or restore the land if it could be shown that there was an equally useful piece of land available elsewhere.
– The honorable senator is ignoring party considerations altogether.
– I have never known party considerations enter into a national question of this character.
– I have never known party considerations absent in any vote.
– I have no hesitation in saying that Parliament would not submit to the cherished sentiments of any of the States being needlessly outraged. There is no danger whatever of public reserves being taken away by the Commonwealth, unless, under some peculiar circumstances, they are proved to be an absolute necessity in the public interest. Whenever those peculiar circumstances do arise, the interests of the particular locality must take second place. If we carry this amendment we shall certainly entail on Parlia ment the necessity of carrying, not one, but innumerable Acts of Parliament for the acquisition of public property.
– Is it proposed to take so many reserves as that?
– No ; but, as will be readily seen, there are many cases in which it could be represented that it was in contemplation to reserve the land, and so forth, and thus innumerable difficulties could be created. With the development of governmental control. Parliaments everywhere find the time at their disposal insufficient for their legitimate work.
– We sit only half the year.
– Any Parliament which sat all the year would do less than we do. who sit only half the year. We do our work much more efficiently and expeditiously because we have some time to devote to it, apart from the actual sittings. As a matter of fact, in every session of every Parliament of which we have any knowledge, many measures, admitted to be of importance, have to be deferred owing to want of time ; and yet this amendment proposes to burden Parliament with the consideration of innumerable Bills for the acquisition of land.
– If there are to be innumerable Bills, there must be innumerable resumptions.
– The Commonwealth Government administers three very important Departments, in connexion with which - and I speak of the Post and Telegraph Department particularly - there must be innumerable acquisitions of land for the purpose of providing accommodation for public servants.
– Is all the accommodation to be provided by the acquisition of public reserves?
– Anything we do to render it imperative to pass Acts of Parliament, except grave necessity compels is unwise. While we. have a responsible Government, and an Executive completely under our control, it is much more expeditious and convenient to permit the Government to move and act until they do so contrary to the will of Parliament, rather than to put the cumbersome machinery of Parliament into operation, on each occasion. The amendment creates a condition which would practically invite objections to proposed resumptions. I cannot help using the term introduced by
Senator Millen, and saying that it is fantastic to conceive of the Commonwealth Government goings out of its way to look for some means by which it might injure some of the States. Surely the Federal Executive, living, as it does, upon the will of the representatives of the States-
– On what?
– On the will of the representatives of the States.
– Does the honorable senator not mean the will of the representatives of the constituencies of the Commonwealth? The representatives of the States iii the Senate can rarely affect the Executive. That is no reason why this power should be given.
– There is no reason why the Senate should place hobbles on the Executive.
– Unless on the honorable senator’s own showing, he having contended that we have power to deal with the Executive if it does wrong. My interjection was in correction of that statement.
– I spoke of Parliament, which has the control of the Executive. Although the Senate has not the control of the Executive, in the sense that we can displace the latter, we have considerable control, which gives the States, as States, greater power than their numerical strength would warrant. Our duty is to see that no Act of Parliament prejudices the interests of the States. This Chamber was created as the bulwark of States interests and rights, and therefore we ought not to pass this amendment, which, if it were carried, would outrage the Constitution. Subject to the conditions being just, the Constitution provides that the Commonwealth may acquire land for public purposes; and this amendment proposes that, by our own act, we shall restrict our powers. The amendment is extremely unwise in itself, and it is injudicious from the point of view that it creates more legislation! for Parliament, which already has little enough time for its own work.
– I desire to say only a few words, because I spoke on the original amendment, the principle of which is practically the same as that of the proposal now before us. The amendment which the honorable senator has now submitted really carries him no further, except in a limited number of cases. No doubt this is the more comprehensive amendment; and the intention of the honorable senator now is that there shall be a direct dealing with trustees or other owners of parks or reserves dedicated to public purposes, and an agreement entered into with them. Taking Victoria as an illustration, I may say that the Crown grants of the various reserves are dedicated, in some cases, to the municipalities, and in others to municipalities and the Board of Land and Works, while lands have also been acquired by purchase or gift. The powers of the trustees are contained for the most part within the four corners of the grant, though, in other cases, they are assisted to some extent by Act of Parliament. But I do not suppose there is a grant in existence in Victoria of public lands for recreation purposes which permits the trustees to enter into any such agreement as is proposed. Senator Dawson. - With the consent of the State.
– The consent of the State is quite immaterial. Of course, if a State chooses to put that consent into an Act of Parliament, it is another matter; but it is absurd to suppose such a contingency.
– The matter could be dealt with by the State Executive.
– I take the honorable senator’s point to be that, under the terms of the grant, the trustees in such cases would not be empowered to enter into an agreement for the sale or disposal of the land. But surely the Bill would give the Commonwealth power to take the land; and, to that extent, would empower the trustees to make an agreement?
– It is proposed to put a distinct curb and limit on the powers of the Commonwealth; and that is what I, protest against.
– We have passed clause 6.
– That clause does not affect the amendment, but simply provides that the Governor of a State may enter into agreement with the Governor-General with regard to the grant of Crown land. As I say, it is proposed to put a distinct limit on our powers. If the amendment be carried, there will be no power for the compulsory resumption of recreation reserves. We have now to see what power there would be to make an agreement for handing over a recreation reserve to the Commonwealth Government. As a matter of fact, any power would be within the four corners of the Crown grant, or, at most, there might be some assisting power in the Land Act of the particular State. But there would be no power which would permit what is proposed; and, consequently, Senator Mulcahy will see that by carrying his amendment, he would not be one small step forward1 towards the object he has in view. Of course, it is unfair to apply destructive criticism to a rapidly-conceived amendment. All we can do in fairness to Senator Mulcahy is to suggest that if we desire to vote on the principle we might do so in reference to some preliminary words, and not on the actual amendment itself. The result of the vote could then be taken as an instruction to the Ministry to see that the intention of the majority of honorable senators was expressed in proper verbiage, and the necessary machinery provided for carrying it into effect.
– AH the arguments have been directed against the principle.
– I have already dealt with the principle, which I oppose as altogether wrong, and in derogation of the terms of the Constitution. I am now pointing out that, even if the amendment were carried by both Houses, Senator Mulcahy would not be one step forward, because the provision would have no validity, and the proposal is quite impracticable.
.- I think I liked best the amendment first submitted by Senator Mulcahy ; but, as has been suggested, if we agree as to the principle, there should be no difficulty in putting the amendment into the right shape. We should never ‘forget that it is impossible for this Parliament to divest itself of any power conferred on it by the Constitution ; and I look on this proposal as in the nature of a self-denying ordinance. Presuming the amendment to be carried, the Commonwealth Executive will have no power to acquire lands that have been dedicated to the public for health or recreation except by agreement. This is not a matter, as some honorable senators seem to think, of a conflict between the Commonwealth powers and the States powers; it is npt a case in which the Commonwealth seeks to take certain powers in order to diminish the powers of the States, or vice versa. The power of a State is derived from its Constitution, and will not be altered by any action we may take. Under the State
Constitution, a State Government has power to resume any land dedicated to the use of the public. In the case of ordinary reserves, it has the power to do that by Executive action. In other cases, and even in the case of private property, it exercises that power under an Act of Parliament. In one way or another a State Government has always the power to resume lands in the State dedicated for public purposes. Our Constitution gives us the same right, and the proposal now made is that, until this measure is repealed by this Parliament, we shall not authorize, the Commonwealth Executive to resume such, land.
– It is a limitation.
– It is not a limitation of our power, but of the power proposed to be conferred on our Executive.
– That is so. The power always remains in this Parliament to act up to the limit defined by the Constitution, but what is proposed is that we shall say that until this measure is repealed we will not authorize the Executive of the Commonwealth to resume land dedicated to the public for purposes of health and recreation. The reason why I am inclined to favour that is that in the State of Queensland - and I suppose the same thing holds good in other States - there has been a continual tendency to appropriate these reserves. We have one reserve - Victoria Park, close to Brisbane - which has been pecked at all round.
– By the Federal Parliament?
– No; by the State Government. Portions of the park have been appropriated for various purposes, until there is comparatively little of it left.
– That is a reason why we should not give the States any power in this matter at all.
– It is not a question of giving to or withholding from the States any power whatever. No matter what we do, we shall leave the States, in this connexion, exactly im the same position, and they will be able under their Constitutions to resume the whole or any portion of these parks for their own purposes. I am desirous that we shall not give the Commonwealth Government the power to do the same thing. If we do it will lead to the quicker resumption of these lands, because, if the Commonwealth Government takes a portion of a public reserve for public purposes, the State Government will be encouraged to do the same thing. They will say, “ If the Commonwealth Government can take five acres of our park for one purpose, why should we not take ten acres for some other purpose ?” - By agreeing to the amendment we shall be protecting lands dedicated to the public by putting two bars instead of one in the way of their resumption. Senator Mulcahy proposes that, if the ‘Commonwealth requires a piece of land that has been dedicated, they must ask the State Government to resume it for them. They must make terms with the State for it. If the State Government is not agreeable, and the resumption of the land is absolutely necessary, the Commonwealth Government is then thrown back upon the powers vested in it under the Constitution.
– That was not Senator Mulcahy’s original amendment, which related only to Crown lands.
– At all events. Senator Mulcahy’s intention is to deal with reserves dedicated to the public for health and recreation.
– That is the last amendment.
– The last amendment speaks of an agreement being made with trustees. It is suggested that, if the land is held by trustees, it mav be necessary that an agreement should be made with them. That, I think, would be almost impossible. I feel somewhat strongly on this question of the preservation of public reserves, because I have known them to be encroached upon to such an extent that I should be prepared to support almost any provision which would throw additional difficulties in the way. I think it was Senator Pearce who referred to the advantage which it might be to the Commonwealth to be able to resume these lands for defence purposes. Surely section 69 of the Defence Act is sufficient in the circumstances. It provides that -
The Governor-General may give a general or particular authority to the Defence Force, or any part thereof,, to enter upon and use any Crown lands of the Commonwealth or of any State for drill, training, manoeuvres, or other naval or military purposes.
– Would that override this provision ?
– That is only for temporary occupation. It would not enable us to acquire, a site for a fort or a magazine.
– Certainly not ; but we are dealing with a matter of urgency, and is it possible to imagine that the acquisition of land for the purpose of a fort would be so urgent a matter that it could not wait until the Federal Parliament had assembled ?
– Undoubtedly it is.
– Honorable senators must see that a work of that kind is an undertaking which might take years to complete.
– It might be all the more necessary that we should secure the land at once.
– The Defence Act gives all the necessary authority for acquiring or using Crown lands for purposes of defence. If land is required for a permanent purpose, such as the erection of a fort, surely the Government would submit the matter to Parliament; that is to say, if the ordinary means of arrangement with the State Government concerned for it’s acquisition should fail.
– Would the State Government ever refuse?
– It is not a: question of the State.
– I do not see what other question there is. A State Government undoubtedly has power under the State Constitution to resume any land, even though it should be in private hands. I should be inclined to think that the only purpose we might seriously consider to-night is the acquisition of land for rifle ranges. I think that the interest of the public to whom these spaces have been dedicated should be the first consideration. I am strongly of the opinion that in these matters the State Government should be assumed to know more than does the Commonwealth Government about the requirements of the public and the desirability of resuming public land in any particular place. The Minister of Defence is aware that a little time ago in Queensland some question arose with regard to the resumption of land for a rifle range, and there were conflicting interests connected with the proposal. -
– That was not dedicated land nor Crown land.
– A similar instance might occur in the case of lands dedicated to the public. I think that the Commonwealth Executive might be glad to be rid of the responsibility of having to resume land dedicated to the public, and might consider themselves fortunate in being able to throw the responsibility for these resumptions upon the States Governments. Senator Trenwith. - It is not a question of what Ministers would like, but of what is best for the Commonwealth.
– It is certainly best for the Commonwealth that the Commonmon wealth Government should continue to live in peace and harmony with the Governments of the States.
– I agree with very much that has fallen from Senator Drake on this subject, because I ;ha.ve found in every one of the States a disposition to encroach upon public’ recreation reserves. I hold the opinion that a recreation reserve in a large, or even a small, city should be held to toe absolutely sacred, and should not be invaded except under the most severe stress of circumstances.
– It would not.
– I am supporting the amendment, because my experience justifies me in saving that it would. My experience in Queensland has been that whenever a piece of land has been required for any purpose, public or private, it has almost invariably been sought for in a public reserve. I believe that the same course is likely to be followed by the Commonwealth Government unless this Parliament speaks out clearly on the subject. I believe that these reserves should foe held sacred because they have been established for the purpose of conserving the health of the people. As our population increases out cities) will grow, and the necessity for these reserves will every year become greater. If the Commonwealth requires a piece of land for any specific purpose, in nine cases out of ten it will be easier for us to find suitable land that is not a reserve than it will be for the local community to find another reserve, or to part with a portion of any of their existing! reserves. The only Commonwealth Department which I think might be compel led to encroach seriously on these reserves is the Defence Department. I do not think there will be the slightest difficulty in finding suitable areas of land for the Customs and Post and Telegraph Departments without touching any of these reserves. If the Commonwealth Government can make out a clear case for the resumption of any reserve, or portion of a reserve, for defence purposes, I am sure that no State will stand in the way. I look upon the amendment .as a sort of hurdle, over which the Commonwealth Executive must jump before it can take any of these reserves. I trust that the Committee will approve of the principle embodied in the amendment.
– I had little intention of speaking on this question, but as so many honorable senators appear to desire to express their feelings on the subject of the preservation of public parks, I should like to add my testimony, and say that I am with those who believe that everything possible should be done to preserve the sacred rights of the people to their public parks. But we find a most pitiable condition of things related by Senators Drake and Guthrie. Senator Guthrie certainly made out a very good case why the Federal Parliament should take all necessary steps to save the people of Adelaide from the Parliament of South Australia.
– And the Commonwealth.
– No, from the State Parliament. The Commonwealth has not yet interfered with the park lands of the people of Adelaide.
– The rifle ranges on the Port Adelaide recreation grounds.
– We took them over from the State.
– In the case which Senator Drake put, he reiterated the fact that the Queensland Government are pillaging as fast as they can the whole of the public lands. He says that that is ample reason why we should go beyond the power granted to us bv the Constitution, and prevent this Parliament, by what he calls an ordinance of sacrifice, from ever taking possession of any of those lands. Be the reason ever so strong, and be the importance of the case ever so great, the Commonwealth, he says, must not lay hands upon such land at any cost. He would allow the State Government to go on taking the land at their own sweet will, and at the same time prevent the Federal Government from using a certain area for a very necessary purpose. I sympathize with every one who wishes to preserve the public lands, and am quite prepared to do everything possible to help in that direction.
I should be one of the last to support either a Government or a Parliament which would wantonly interfere with any public rights in park lands for recreative purposes. On that ground I must oppose the amendment, believing that this Parliament will always be quite as anxious to express the sentiment and the will of the people of Australia in respect of these sacred lands that we are speaking of as will any State Parliament.
.- In common with other honorable senators, I should like to see reserves preserved to the people. Those who are in favour of the amendment seem to distrust the Federal authority, while those who are supporting the Bill do not. It has been argued that the State authority would not object if it saw that it was alsolutely necessary that a certain area should be acquired bv the Commonwealth. Might we not just as reasonably assume that the Commonwealth authority has sufficient sound judgment not to ask for land unless it be absolutely indispensable ! That is how the matter presents itself to mv mind. Honorable senators are contrasting the Federal and States authorities in point of capacity and honesty. There is no necessity to do anything of that kind. Surely we may trust those whom we have placed in power. According to the amendment, the two parties are to come together, and if the State Government should object to hand over a certain area which the Federal Government desired to acquire, then the matter is to be at an end. Surely wre have sufficient confidence in the Federal Government for the time being to trust them not to ask for any portion of a recreation reserve, unless they are fully satisfied upon expert advice that it is absolutely necessary to the welfare of the Commonwealth.
– I have listened with a good deal of interest and attention to the different speakers. There is one thing to which it seems to me no supporter of the amendment has directed his attention. At the present time we have the power of resuming compulsorily. if necessary any properties such as those which are referred to in the amendment. That power has been in existence ever since the Property for Public Purposes Acquisition Act was passed in 1901. I do not know that a single case has been giver, or even hinted at, where it has been exercised unjustly or abused. Then., again, each State has the absolute right to resume property for public purposes, whether it be dedicated tosuch uses as those indicated in this amendment or not. The amendment seeks to; differehtiate the Commonwealth, as a sovereign power from exercising corresponding rights to those of the States. In other words, although each State can within its own sphere resume property compulsorily for public purposes, whether it be dedicated for the health or recreation of its citizens in any part or not, it is now sought to impose an express statutory limit upon the Commonwealth. I ask honorable senators who support the amendment, why thev draw this glaring distinction between the States and the Commonwealth. Not a single reason has been advanced to support the proposal.
– We do not draw a distinction !
– Undoubtedly, my honorable friends do. Most decidedly this power exists in all the States in Great Britain and in all: civilized communities.
– By an Act of Parliament only we can repeal many dedications.
– My honorable friend knows that the Commonwealth possesses the power to resume these lands compulsorily, and that if we were to exercise the power, all the dedications and reservations applicable to any areas would cease to have any effect. Has that power been abused so far? If a single instance of that kind had been cited, I admit that there might be some_ weight of argument behind the amendment. Or, if there had been advanced a single reason why. we should take up a totally different position from that taken up bv any of the States, there might be some weight behind the argument. But everything points, not to the possibility, but to the probability, remote even in the minds of those who suggest it, that the power might be wantonly used to the prejudice of persons in different parts of the Commonwealth who are at present enjoying the benefit of recreation and health reserves.
– It might not bewantonly used by the Government, but they might be misled1 by their officers.
– The same objection would apply in every instance to the action of a State Government.
– Experience has shown it to be a remote contingency so far asthe Commonwealth is concerned.
– My experience has shown the very opposite.
– Not so far as the Commonwealth is concerned.
– Yes ; so far as military officers are concerned.
– In order to provide against that remote contingency, we are asked to exempt one class of land from the exercise of the power of the Commonwealth to resume property for public purposes. This is a serious amendment’. It is a most radical departure from the principles of similar legislation in all the States and in ithe United Kingdom. I ask why honorable senators should single out the Commonwealth and the Government in power to-day.
– Oh, no.
– My honorable friend was Vice-President of the Executive Council when the present Act was being considered here, and if I remember aright, he did not suggest for a moment that it was desirable to impose any limitation upon the power of the Commonwealth to resume dedicated land. Why should there be this change of front on his part? Why should a limitation be sought to be placed upon the Commonwealth when the present Government are in power? Isthe amendment proposed in relation to the present Government? I hope not.
– Because the Commonwealth cannot be so well posted as is a State in regard to State land.
– The Commonwealth would take every precaution that it did not interfere with the lands of a State unnecessarily.
Question - That the words proposed to be added be so added - put. The Committee divided.
Majority … … 2
Question so resolved in the negative.
Clause agreed to.
Clause 15 -
The Governor-General may approve of the acquisition by theCommonwealth of any land by agreement with the owner.
The Attorney-General may thereupon, for and on behalf of the Commonwealth, execute or accept any conveyance or document, or enter into any covenant or agreement, and do anything necessary, for the purpose of effecting the acquisition of the land.
– I move -
That the following new sub-clause be inserted : - “1a. The Minister may, in any case where the interest proposed to be acquired is a lease for a term not exceeding three years, at a rental not exceeding Fifty pounds per annum, approve of the acquisition by the Commonwealth of the lease of the land by agreement with the owner.”
The object of the amendment is this: In many instances it happens that small interests have to be acquired by a Commonwealth Department. They are of such small consequences that it is like using a steam hammer to crack a nut to bring the powers of this Bill into operation. The question then arises as to the exact lineof limitation between a case that should be dealt with directly by the Minister and cases which should be reserved for the Governor-General in Council. Honorable senators will notice that a corresponding provision is proposed to be inserted in a subsequent clause, which will deal with cases where the Minister is letting property of the Commonwealth for a period not exceeding three years, and at a rental of not more than£50. I may, perhaps, best illustrate this class of case by giving an illustration to which the lastmentioned provision will apply. There are some instances in which a Commonwealth Department is in occupation of property which it is not actually using. Some person or body in the locality asks whether he or they may be allowed to rent that property.
A valuation being agreed upon, which sometimes amounts to 5s. or 6s. a week, the applicant is allowed to rent the property for, say, fifteen months or two years. It is obvious that cases like that should not be the subject of action by the GovernorGeneral in Council, but that the Minister should be empowered in all these minor instances to act directly. We, therefore, shall ask for that power for the Minister in cases where he is going to Tease property belonging to the Commonwealth that is not being used for departmental purposes. We now ask that he shall haw a corresponding power in connexion with acquiring lands. It is provided that in such cases the term is not to be longer than three years and the annual rental not more than £,$o. If the term is over three years or the annual rent over ^50 the matter has to go through the ordinary procedure.
.- Before the amendment is put I should like to draw attention to the fact that the question whether we should have a separate Bill, or a clear division in this Bill, dealing with the acquisition of land from a State, may very properly be considered to arise here. This is the first clause in which I have noticed that the word “ owner “ is used. The use of that word at once brings before us the question whether we ought not to have a separate Bill dealing with the acquisition of the land of a State. It is my intention to move in that direction ; but as the word “ owner ‘ ‘ is here used, and as that word expressedly includes a State, I think it would be appropriate for the Minister to say what he intends to do. While I do not wish to embarrass him in dealing with this measure, I think that even now an attempt should be made to divide it into two parts, even if it is determined to deal with the whole matter in one Bill. We should have one part dealing separately and distinctly with the case of land to be acquired from a State. I cannot help repeating that, in common courtesy, the very least we can do to a State from which we take land is to make it perfectly clear what the provisions of our law are, and that we do not treat a State as an ordinary private individual. I should like the Minister to express his view as to whether he thinks it advisable to divide the Bill into two parts. I should prefer to have two Bills, and T think we ought to have them. But if that cannot be done, we should, at any rate, devote one part of the Bill entirely and exclusively to the acquisition of land from the States.
– Since last Friday the matter mentioned by Senator Clemons has been considered, and it is thought to be inadvisable to depart from the form in which the Bill has been submitted to Parliament. As a matter of fact, the present arrangement of the Bill offers many advantages to the Commonwealth, and imposes no disadvantages upon any State. It is not intended to convey, nor do I think that the Bill would be taken by any State as conveying, any discourtesy. We provide in the definition clause that the word “owner” shall include a State where the State in question happens to be the owner of Crown land. We are, of course, legislating for the right to resume land for public purposes - that as to say, for the purposes of the people of the Commonwealth. In Great Britain, to which reference was made last Thursday, the position is very different.
– There cannot be a parallel with Great Britain, which is not a Federation having to do with State lands.
– It was said that the legislation of Great Britain upon this subject was incorporated in more than one measure - that one Act gave authority to resume and another provided1 machines- for resumption. In the case of the people of the Commonwealth, we are indicating power to resume, and, at the same time, we are prescribing the method which shall be adopted in resumption. In Great Britain, on the other hand, the system is mostly applicable to the acquisition of land for the benefit of private persons. Consideration has been given to the suggestion, and it is thought that, in the interests of all concerned, the present form of the Bill is better.
– The Minister’s argument will not suggest itself to those honorable senators who have had parliamentary experience as being very convincing. I never heard of any Bill as to which we did not have the assurance of the Minister in charge that the whole of the drafting talents of the State had been engrossed in its construction, that it was as perfect as it could possibly be, and that nothing could1 be done to improve it. But, as a rule, it is not very long after such declarations are made before we find the Minister himself coming down with amendments, thereby showing that although so much attention has been devoted to the measure nevertheless something else is desirable. We are told that a’fter conferring with some unnamed authorities, the Minister has come to the conclusion that the perfection of form has been reached in this Bill, and that nothing more need be. done except to pass it. But we have already had the Minister proposing an amendment. We have only dealt with fifteen clauses, and we have been engaged upon the measure for less than a week. Yet the Minister, dealing with a Bill red-hot from the hands of the draftsman, comes down with amendments, which really suggest that the mere fact that he and his draftsman have drawn this measure in its present form, and have paid a great deal of attention to it, are not sufficient reasons why we should pass it in this form. I have heard1 no argument against adopting the course suggested by Senator Clemons, except that the Minister and his draftsman have come to the decision that this is the best form. There is no man who has had parliamentary experience who has not heard the same argument in. connexion with every B*ill upon which he has been engaged. But the Committee is entitled to something more tangible than the assurance that, in the opinion of the Minister, and in the opinion of the draftsman, this is the best possible Bill that human ingenuity can construct. I db not accept that argument. It is part of the stockintrade of every Minister in charge of a Bill. The Committee is entitled to a serious reply to the argument of Senator Clemons.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 16 -
– I should like to remind the Minister in charge of the Bill that, during the second-reading discussion, an assurance was given, either bv himself or his colleague, that there would be no objection to insert certain words, making it absolutely clear that it was not intended to use this Bill for the purpose of acquiring land for the Federal Capital. I remind the Minister of that assurance.
– I did not give any assurance, although .1 said that it was not intended to use the Bill for Federal Capital purposes.
– It was Senator Playford who gave the assurance.
– I think he merely made a suggestion.
– He gave an assurance that something should be inserted to make the point abundantly clear. I am perfectly certain that that is so.
– I understood him to suggest, when Senator Symon rose, that what ought to be done was to put a few words in the Bill, and Senator Symon said that that was a practical suggestion.
– No; Senator Symon made the suggestion, and I understood that Senator Playford agreed to it. Am I to understand that the Minister does not intend to carry out that assurance? It is open to him to appeal to his colleague as to whether it was given. I have a distinct recollection of it. Senator Keating admits having himself given an assurance that it is not intended to use the Bill for that purpose. He should have no objection, therefore, to put words in the Bill to make that abundantly clear.
– I have no recollection of an assurance being given that words would be ‘inserted to make it clear that this Bill would not be used for the purpose of acquiring land for the Federal Capital. I myself pointed out that I did not think there was any necessity for the insertion of such words - that in the case of the Federal Capital we should own the territory, whereas, so far an land taken under this Bill was concerned, we should be acquiring an estate or interest in it, as described bv the measure. I suggested for the consideration of Senator Symon the difference between an estate or interest which we should acquire in land obtained for ordinary purposes under this Bill, and the territory which we shall hold by virtue of the provisions of the Constitution for the Seat of Government. I think that my colleague, Senator Playford, indicated bv way of whisper or suggestion - perhaps bv a verv audible whisper - that the whole difficulty could be overcome by inserting words to that effect. But I do not know that he gave the Senate an assurance that the Government would be agreeable to insert such words.
– I made a suggestion to Senator Keating, not to the Senate.
– That is what I understood. The. words were audible to all, though they were intended for me, and should not be taken as an assurance on the part of my colleague, who has had many more years’ experience than I have, and would have intimated that the assurance should have come from me or would have made it with my concurrence. As I have already said a similar assurance was given a few years ago by the representatives of a former Government at this table, and with that assurance the Senate was satisfied. Why should honorable senators not accept a similar assurance now? This clause can apply only to land acquired under the provisions of this Bill, and such land would not, properly speaking, become Federal territory as prescribed by the Constitution.
– It might, improperly.
– I do not think the land would become Federal territory within which the Seat of Government should be situated.
– I have a distinct recollection that in the earlier part of this discussion, Senator any in answer to Senator Symon gave utterance to words which meant that this Bill would not affect the territory within which the Seat of Government would be situated. I have here a memorandum to that effect. I am under the impression that Senator Playford said he would see that it was made clear that the Bill did not affect the Federal territory.
S’enator CLEMONS (Tasmania) [9.18]. - I am not much concerned with what Senator Playford said, but I should like to point out the position at which we have arrived. We have heard from the Ministers that the Government have no intention to apply this measure to the acquirement of lands for a Federal Capital. But the life of the present Ministry and the life of the Act will not be co-terminous ; the Act may be repealed, and the Ministry remain in existence; or the Ministry may disappear, leaving the Act still operative. If it is not desirable that the measure should be applied’ for the purpose of acquiring the Capital Site, why not say so in clear terms? The other day Senator Playford practically said what I am saying now, namely, that if the Bill is not going to apply, what harm is there in saying so; and Senator Keating’s answer is by no means conclusive. I repeat, in order to emphasize, the statement that the present Government have no desire or intention to apply the measure to that purpose; but such an assurance ought not to satisfy us in every instance. We shall be placed in a perfectly ridiculous position if, every time Ministers declare that while they are in office a Bill under discussion shall not be applied in a certain direction, we leave out words which are thought desirable as making the intention quite clear. I believe the majority of the Committee, desire that the Bill shall not apply to the acquisition of land for the Federal Capital Site, and surely we should say so. For the sake of lucidity, and in order to test the question, I move -
That after the word “ process,” line 3, the words, “ except land required for the Federal Capital Site,” be inserted.
– Say “ Crown land.”
– Verv well; but I thought we were dealing with Crown land only.
– I think it would be better if the honorable senator submitted his proposal as a separate clause.
– I do not think so ; but if Senator Keating can suggest words that are clearer, I shall have no objection to accept them. In any case, the draftsman mav make any verbal alterations that are necessary.
– I think it would, perhaps, be better to adopt as far as possible, in the proposed amendment the wording of section 125 of the Constitution, which deals with the determination of the Seat of Government by .the Parliament. I suggest that Senator Clemons, instead of saying, “ Except Crown lands required for the Federal Capital site,” might use words to the following effect, “ Except the territory for the Seat of Government of the Commonwealth.” As I said, I think that this proposal ought to be submitted in a new clause, or, at any rate, in a new paragraph of this clause.
– I have no desire to interfere in this matter ; and, therefore, I suggest that the clause be postponed in order that the Parliamentary Draftsman may have an opportunity to express what is our intention.
– I have no objection.
Senator Lt.-Col. GOULD (New South Wales) [9.25]. - I do not think that this Bill ought to deal in any way with the acquisition of land for the Federal Capital site. If it were considered desirable by the Parliament to establish the Seat of Government on private lands, the Government would be enabled by means of the Bill to fix on the site forthe Federal territory. The land thus selected might be the very best; but a matter of such paramount importance should be determined by a separate Bill, and not left to Executive action, even though the latter had to be subsequently confirmed by Parliament. A Bill of this character is intended to provide for the resumption of land for the purpose of post-offices, customhouses, light-houses, defence buildings, and so forth, and not to acquire or deal in any way with land appertaining to the Federal Capital site. If Parliament determined to fix the Capital on. land already alienated, surely it would never be said that it was proper to come to the determination by virtue of the Bill before us. If the territory selected consisted partly of Crown lands, and partly of private lands, the Commonwealth would be placed in the position that, while under the Bill they could resume the whole of the private lands, they could noi, by virtue of the same measure, resume the Crown lands, and there would have to be a separate Act of Parliament in regard to the latter. If Parliament declined to take up the Crown lands, then we should be in the absurd position of having acquired a large area of private land, and not being in possession of the Crown land. I am sure that Senator Keating himself, when he introduced the Bill, never dreamt that it would be made applicable in any respect to the Federal Capital. Under the Bill, an attempt might be made to do in an indirect way what ought to be done in a direct and straightforward way. If the clause be postponed, I suggest’ that it be submitted with amendments which will show clearly that the Bill is not intended to deal in any way with the important question of the Capital site. I offer this suggestion in perfect good faith, and I am sure that Ministers will see sound reason why the suggestion I have made should be acted upon.
.- I indorse every word which has fallen from Senator Gould. It ought to be made clear, as I have no doubt ihe Ministry in tended, that the Bill does not apply in any way to the acquirement of land for the purpose of the Federal Capital site. It was always intended that the Federal Capital should be created by a Bill passed through both Houses, and I hope the Ministers will give attention to the suggestion that has been made.
Amendment, by leave, withdrawn.
– According to the original Act the notification of the acquisition of land has to be published not only in the Gazette, but in a newspaper circulating in that part of the Commonwealth where the land is situated. Clause 16, however, merely provides that the notification shall be published in the Gazette, and I should like to know why the alteration has been made.
– There is no advantage in publishing the notification in a newspaper.
Clauses 17, 18, and 19 agreed to.
Clause 20 -
Except in the following cases : -
where moneys have been appropriated out of the Consolidated Revenue Fund for or towards the purpose for which the land was acquired ; or
where the Governor-General has sanctioned the construction or carrying out of the work or undertaking in respect of which the land was acquired, and public funds are legally available for the purpose ; or
where the Minister certifies under his hand that the estimated value of the land does not exceed One hundred pounds, either House of the Parliament may, within thirty days after a copy of the notification has been laid before it, pass a resolution that the notification shall be void and of no effect, and thereupon the notification shall be void and of no effect, and the land shall be deemed not to have been vested in the Commonwealth.
– Comparing clause 20 with the existing Act, it seems to me that there is an omission from this clause which is not provided for elsewhere in the Bill. It is provided here that where the Government, by notification in the Gazette, has resumed a portion of land, and Parliament subse- . quently refuses to ratify the resumption, the notification becomes void and of no effect, and the land reverts to the owner from whom it has been temporarily taken. Under the existing law, the owner, in such a case, is entitled to compensation for the temporary dispossession of his land, but, in this clause, there is no provision for such compensation. By an Executive act, the Commonwealth Government might resume a piece of farming land. The owner, seeing the notification of the _ resumption, might cease his farming operations, and by the time Parliament had disallowed the resumption, it might be’ too late for the farmer to make provision for the season’s crop. Under the existing law he would be compensated in such circumstances, but there is no such provision in clause 20 of this Bill. I ask the Minister whether there is any other portion of the Bill which I may have overlooked, in which the omission is remedied, or whether it is intended1 that in circumstances, such as I have indicated the owner of the land shall be deprived of the compensation to which I think he is legitimately entitled?
– I think the compensation in such a case is provided for in clause 25, sub-clause 3 of which provides that-
Nothing in this section shall take away the right of any person to compensation for damage sustained by reason of the exercise of any power under this Part of this Act.
– That is in the case of actual occupation, but clause 20 deals with resumption without occupation.
– Where there is actual occupation we make provision that rent shall be paid. I take it that the honorable senator is referring to a case where a resumption takes place simply by notification, and there is no actual occupation. I do not know that there is any provision for the compensation of the owner in such a case.
– There is under the existing law.
– I believe that if a person is in any way prejudiced or damaged he can recover compensation from the authorities. But if the resumption of land is purely formal, as indicated by notification in the Gazette,* and there is no entry upon the land, the owner does not in every instance, as of right, acquire the right to compensation. Although it is evident that he does under the existing law, I see no reason why he should.
– He might be prevented by the notification from making any use of or disposing of his land to advantage.
– I think that, if he were prevented from cultivating his land-
– Or building upon it.
– Or building upon it, or disposing of it, and could bring forward proof of damage, he would be entitled to compensation under sub-clause 3 of clause 25.
– No. That sub-clause deals with Part III., whilst clause 20 is in Part II. of the Bill
– I do not think that the owner would be prevented from recovering damages if he could actually prove that he had sustained any.
– If he made any claim, the Executive would be in a position to say that they had acted under the law, and he would have no remedy.
– It is all a question of the actual facts as to the damage sustained. I see no objection to the addition of the words contained in the existing law, because the onus would be thrown upon the owner of showing actual damage. I was under the impression, I must say, that the provision in sub-clause 3 of clause 25 was of more general application than it is.
Amendment (by Senator Millen) agreed to -
That the following words be added : - “ And the owner of the land shall be entitled to compensation for any damage which he may have suffered by reason of the notification or of the exercise of the powers of the Minister consequent thereupon.”
.- Senator Mulcahy has made the suggestion with regard to recreation reserves that the sanction of Parliament should be obtained for their acquisition. I suggest to the honorable senator that an amendment to give effect to what he desires might be appropriately introduced in this clause. It will be observed that, according to sub-clause 3 of clause 16, when land has been acquired -
A copy of the notification shall be laid before both Houses of the Parliament within fourteen days after its publication in the Gazette if the Parliament is then sitting, and, if not, then within fourteen days after the next meeting of the Parliament.
In this clause 20 it is provided that, except in certain cases, which are set out - either House of the Parliament may, within thirty days after a copy of the notification has been laid before it, pass a resolution that the notification shall be void and of no effect, thereupon the notification shall be void and of no effect, and the land shall be deemed not to have been vested in the Commonwealth.
I suggest that we might here insert an amendment that, in the event of the compulsory resumption of a reserve, or portion of a reserve, it should appear on the face of the notification that it is a reserve, or portion of a reserve, that is being resumed in order that it might be specifically brought under the notice of Parliament.
– It is competent for Parliament to pass a resolution with regard to any land.
– No, it is not. There are three exceptions set out in this clause. The point 1 am making is that, where a recreation reserve, or portion of such a reserve, is resumed, it should be competent for Parliament to pass a resolution as provided in clause 20, and something should appear in the notification to direct the attention of Parliament to the fact that a recreation reserve, or part of such a reserve, is being resumed.
– If any flagrant injustice were proposed, some members of this Parliament might be trusted to direct attention to it.
– I think that there was a great deal of sympathy expressed with Senator Mulcahy’s contention that Parliament should have some control where it is proposed to resume any part of a recreation reserve. I suggest to the Minister, with Senator Mulcahy ‘s permission, that some provision might be inserted in clause 20, enabling Parliament to pass a resolution negativing a resumption of a reserve or part of a reserve and requiring that the notification should show in such a case that it is a recreation reserve, or part of such a reserve, that is resumed. I agree that it is not an amendment which can be framed at the table, but I have no doubt, from what has been said by honorable senators, that the Minister will undertake to frame an amendment on the lines I have suggested.
. -I have no objection to the insertion of some such amendment as has been suggested. I may say that I had intended, as one argument against Senator Mulcahy’s amendment, to quote this clause, but on looking at it I ascertained that it did not apply in the cases enumerated in paragraphs a, b, and c, where the funds have been appropriated, where the work has been authorized, or where the Minister certifies that the estimated value of the land does not exceed£100. Although the vote was against Senator Mulcahy’s amendment, I believe that it is the wish of honorable senators that the Commonwealth shall not acquire these lands in any way, so to speak, behind the backs or against the wishes of the people. In respect of these particular lands, we might reserve to the Parliament the right of revoking or annulling these acquisitions. Clause 20 provides that -
Except in the following cases : -
where moneys have ‘been appropriated out of the Consolidated Revenue Fund or towards the purpose for which the land was acquired ; or
where the Governor-General has sanctioned the construction or carrying out of the work or undertaking in respect of which the land was acquired, and public funds are legally available for the purpose ; or
where the Minister certifies under his hand that the estimated value of the land does not exceed One hundred pounds, either House of the Parliament may pass a resolution that the notification shall be void, and of no effect.
– Those are the exceptions, and the provision applies in all other cases.
– The amendment should provide for action by Parliament in the case of the resumption of a recreation reserve, or part of such a reserve.
– I see no objection, so long as we can secure a correct form of words in which to express the amendment. I think that that would reserve to both Houses the opportunity of discussing the policy and the wisdom of the Executive act, which would result in the acquisition of any dedicated land. There is nothing at all undesirable in having such a provision. It would still preserve intact the complete power of the Commonwealth as expressed in the Bill, and it would give to each House the right, on motion, to criticise any action which might take place in the exercise of power, so far as- dedicated land was concerned.
– Will the Minister undertake to give an opportunity to insert a drafting amendment for the purpose of giving effect to Senator Mulcahy’s view?
– I shall have no objection when the clause is recommitted.
Clause agreed to.
Clause 21 -
If a copy of the notification in the Gazette, certified under the hand of the AttorneyGeneral, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Commonwealth.
Senator Lt.-Col. GOULD (New South Wales) [9.47]. - I wish to draw the attention of the Minister to the wording of the clause, and the effect which it would apparently have. I believe it is contemplated that where land is resumed by the Government they shall take the minerals, the metals, and everything else, in order to prevent any source of conflict arising between the States and1 the Commonwealth. It will be noticed that in: the majority of cases a conveyance has to be obtained. The object of the registration is set forth in the latter portion of the clause, to which I ask honorable senators to refer. It might happen that the laws in force in the State reserved the whole of the minerals to the Crown.
– This clause would not have any application to that, but would apply purely to registration. Without reference to its legal effect, the officer would deal with the conveyance, so far as registration and recording were concerned, in the same way as he would deal with an ordinary conveyance executed under the laws of the State.
.- If the Minister is satisfied that the clause would not interfere with the right to the minerals, I am not prepared’ to contest his opinion, as I have not sufficiently examined the Bill.
Clause agreed to.
Bill received from the House of Representatives, and (on motion by Senator Keating) read a first time.
Motion (by Senator Playford) proposed -
That the Senate do now adjourn.
– I understand that, in this building to-morrow, a dinner is to be given to certain persons from the United Kingdom, and I wish to ask the Minister of Defence if it is to be of an official’ character in any shape or form?
– Not in the slightest degree. I never heard of the matter until I received a notice stating that there was to be a dinner given.
– I may mention that a request was made by certain honorable senators for the use of a room in which to give a dinner, and that it was granted.
– To whom?
– A private dinner?
– A dinner to some members of the House of Commons by members, of Parliament who choose to entertain them.
– The use of the room Kas never been refused to any member of Parliament in order to give a public entertainment, whether in the way of a dinner or not.
– I had not the slightest objection, sir, to what you said. I only wanted to know whether the custom is to ask leave to use the room, and, if so, of whom?
– Of me.
– Is it at your disposal according to custom, or has the House Committee any voice in the matter?
– The House Committee has nothing to db with the matter.
Question resolved in the affirmative.
Senate adjourned at 9.35 p.m.
Cite as: Australia, Senate, Debates, 25 July 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060725_senate_2_32/>.