2nd Parliament · 3rd Session
The President took the chair at 10.30 a.m., and read prayers.
– I desire to ask the Minister representing the Minister of Home Affairs, without notice, whether, in view of the desire generally expressed yesterday, during the debate on the Commonwealth Electoral Bill, he will instruct the officers of the Electoral Department to arrange for an exhaustive trial of any voting machines which may be offered for that purpose at some of the more populous polling booths, during the ensuing Federal elections - not, of course, for the purpose of recording and counting the votes, but for the purpose of testing the efficiency of the machines?
– I understand that for some time the Electoral Department has had under its consideration a number of different voting machines. I think it is quite prepared to apply any test to any machines which may be forthcoming. But I cannot say definitely that it will carry out a test in connexion with the forthcoming elections. I shall bring the matter immediately under the notice of the Department, and if the hon orable senator renews his question on a later date I may be able to give him specific information.
– I have to inform the Senate that His Excellency the GovernorGeneral has fixed the 22nd August as the date upon which he will receive the Address-in-Reply to the speech with which he opened Parliament.
– Is it this year or next year, sir?
– This year.
Motion (by , Senator Keating) pro posed -
That the Bill be now read a third time.
– I wish to record a vote against the third reading of the Bill, because I disagree with that portion of it which provides for the maintenance of Sydney Government House. We have been able to get along very well without any legislation other than the annual appropriation for the GovernorGeneral’s residences. I understood last year, when the Estimates were under consideration, that we had seen the last of the vote for the maintenance of a residence in Sydney. Certainly the Minister in charge of the Estimates at that time did provide a loophole through which he might escape by saying that if the matter were ever brought before the Senate again it would be in the shape of a Bill, but I think that the majority of us believed that we had seen the last of the item. The objections which were being raised in the early hours of the morning to the item would not have been withdrawn, I think, if we had had any idea that, in this session, we should be asked to vote money for this purpose, I believe that, in making this arrangement, the Government is only pandering to the desires of a very small section of the people of Sydney. In my opinion the majority of the people of New South Wales do not expect, and have no desire, that the Governor-General should be compelled to reside in Sydney for so many monthsin each year.
– There is no compulsion.
– There certainly is compulsion, because, if His Excellency knows that an arrangement has been entered into by the Commonwealth Government with the Government of New South Wales to pay a certain sum for the upkeep of Sydney Government House he will feel that it is incumbent upon him to reside there for so many months in each year. I desire to support the views of those honorable senators who said that, if there is to be an arrangement of this kind made, it should apply to all the States. What is there about New South Wales that entitles it to special consideration in this matter? What is there in the Constitution to justify this proceeding? It may be said that, until the site of the Federal Capital is selected, we ought to make this arrangement for the Governor-General ; but I would point out to the representatives of New South Wales that the passage of this Bill is likely to delay the construction of the Federal Capital. If an arrangement be made now for the occupancy of Sydney Government House for a term of five years, that, I suppose, will satisfy those persons in New South Wales who think that the site of the Federal Capital ought to be selected as scon as possible; whereas, if we refuse to indorse the proposed arrangement, there will be a renewed agitation on the part of the representatives of that State to have the question of the site settled. Most of those who come from other States are anxious to have the question settled as soon as possible, because we do not want to stay in Melbourne any longer than we can help. I desire to see the question settled, because, when that is done, I shall be so much nearer to Queensland. I hope, therefore, that honorable senators will reject the Bill at this stage. If I get any support, I propose to call for a division.
– In my opinion, those who are opposed to the provision of a second residence’ for the Governor-General are justified in adopting every reasonable means to secure the defeat of this Bill. From time to time we have pointed out the unfairness of having a residence for His Excellency in a State when there is no necessity that it should be provided. I doubt whether, apart from Victoria, it is constitutional for the Parliament to provide a residence for His Excellency in any one State more than any other. And, in fairness to that principle, we should adopt every means to defeat the proposal to lease Government’ House in Sydney. I intend to vote against the third reading of the Bill.
Question put. The Senate divided.
Majority … … 6
Question so resolved in the affirmative.
Bill read a third time.
In Committee: (Consideration resumed from 25th July, vide page 1762).
Clause 22 -
The Minister and all persons authorized by him may -
Enter upon any land (including Crown land of a State)
make surveys, take levels, sink pits, and examine the soil, and
do any thing necessary for ascertaining the suitability of the land for any public purpose.
Senator Sir JOSIAH SYMON (South Australia) [10.45]. - The Minister will see that it is unnecessary - I daresay it is an oversight on the part of the draftsman - to put in the words “ including the Crown lands of a State.” because the definition clause defines “ land “ as including Crown land. I move -
That the words “ (including Crown land of a State)” be left out.
Amendment agreed to.
Senator Sir JOSIAH SYMON (South Australia) [10.46]. - This clause is taken from section 49 of the existing Act. Honorable senators will notice what a strong but necessary power it gives. Before the acquisition of any land, the Minister, and all persons authorized by him, are entitled to enter with the view to ascertainby sinking or taking levels whether the land is suitable for the public purpose intended. In the existing section, there is a provision for compensation being paid. The land so entered may not be taken at all. There may be no acquisition. It is obviousthat the man whose land is entered upon and turned upside down, so to speak, should receive compensation for any damage done. It is better to put this right to compensation affirmatively. The compensation ought not to be limited to the occupier, because an injury to the soil is an injury to the owner.
That the following words be added : - “ The Commonwealthshallpay compensation to the owner and occupier of such land for any damage done in resisting the powers conferred by this section.”
– I see no objection to staling affirmatively that “the person to whom damage is done shall be entitled to compensation. Sub-clause 3 of clause 25 states that nothing in the Bill shall take away the right of any person to compensation for damage.
– It does not say “nothing in this Act,” but “nothing in this section.”
– That is a negative statement in one sense. It confers by implication upon the person the right to compensation fordamage occasionedto him, notwithstanding anything to the contrary which may appear in the clause. Probably we could meet Senator Symon’s wishes if we adopted as nearly as it is applicable to this part of the measure, the words which we adopted in connexion with a similar provision affecting damage that may be occasioned by the resumption and subsequent abandonment of resumed land. That occurred in clause 20. We could make those words applicable to the conditions dealt withby Part III. of the Bill.
Senator Sir JOSI AH SYMON (South prefers that the alteration shall be made in the way he suggests, I will withdraw the amendment. I think the better course would be to introduce a new clause.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 23 -
When any public purpose is being carried out on any land, the Minister and all persons authorized by him may enter any land -
being within a distance of two hundred yards from the nearest boundary of the land on which the public purpose is being carried out ; and
not being a garden, orchard, or plan tation, attached or belonging to a house, or a park, planted walk, avenue, or ground ornamentally planted ; and
not being nearer to the dwelling-house of the owner of the land than a distance of five hundred yards, and may occupy the land so entered so long as may be necessary for the purposes of any works connected with the carrying out of the public purpose.
Senator Sir JOSIAH SYMON (South Australia [10.55]. - As this clause stands, it provides that when any public purpose is being carried out on any land there shall be power to occupy temporarily adjacent land. I think it a pity that the existing Act was altered in this respect, and that two clauses have been drawn in place of one section. Of course, the object of this clause is not that persons employed by the Commonwealth may go upon adjacent land and pitch their tents, but thatthey may occupy it for certain purposes. Under section 53 of the existing Act persons empowered by the Minister may occupy adjacent lands - so long as may be necessary for the purposes of any works connected with the carrying out of such public purpose, and may make use of the same for any of the following purposes, that is to say : -
The real object is to enable the authorities, when they are occupying land which they have acquired, to go upon adjacent land, say, to get gravel for railway construction purposes, compensation, of course, being paid. But clause 23 gives power to occupy adjacent land for any purpose unrestrictedly. It will be better to combine clauses 23 and 24, as they are in the ex- isting Act. Then we should have the benefit of the interpretation which has been put upon these powers as contained in Acts which have been in force in England and other parts of the British Empire.
– Does the honorable senator say that clause 24 is not subject to the restrictions contained in clause 23?
– No; clause 23 is not subject to the restrictions of clause 24.
– Clause 23 is restrictive.
– No; it is a clause which is absolutely unrestricted. That is, except for limitations which may be put upon the words “ occupy the land so entered,” the persons authorized by the Minister may enter for any purpose whatever. The real restriction is embodied in clause 24; but, as Senator Best will see, the two provisions are combined in section 53 of the existing Act, which-, as a whole, defines the limits on the occupation. Otherwise, under clause 23, questions might arise as to whether there was any restriction as to the occupation, of adjacent lands. Tlie intention is that the occupation shall only be for the purpose mentioned in clause 24; but:, whether that be so or not, that clause should be the guide as to the occupation of adjacent lands, not. necessarily the property of the owner of the land which is required, tout the property of some other person. That other person may be very seriously injured ; and we know that, in many such cases, the compensation is quite inadequate to the damage done. I therefore suggest that the two clauses should be incorporated as in the original Act. I also desire to call attention to what seems to be a restriction on the powers of the Commonwealth. According to the Bill, the power is conferred “when any public purpose is being carried out on any land,” whereas the condition in the existing Act is, “ when any land has been purchased or taken.” Under the clause the power of the Commonwealth is limited to the actual carrying out of the public purpose; tout it seems to me that there ought to be power to occupy if necessary, as preliminary to the public purpose, not merely the land acquired, but adjacent land. Under the clause the powers of the Commonwealth cannot be exercised until the public purpose is being actually carried out. The object of the Bill is to give the fullest power possible to the Commonwealth ; and it would, therefore, be advisable to adopt the words of the existing Act. I move -
That the words, “ When any public purpose is being carried out on any land,” lines 1 and 2, bc left out, with a view to insert in lieu thereof the words, “ Where any land has been purchased or taken under this Act for any public purpose.”
– This alteration in the existing law is a restriction on the Commonwealth authorities, who are enabled to exercise the powers conferred by clause 23 only when a public purpose is being carried out on any land. ‘ The power under the present law and the power it is proposed to confer toy clause 23 is to enter upon land - not the land that is required for the public purpose, but land which may be within a distance of 200 yards, which must not be a garden, orchard, plantation, park, or such other property, anc! which must not be nearer the dwelling house of the owner than 500 yards. It is obviously necessary, °in many instances, that over and above the land which is actually required for the public purpose, adjacent land, the property perhaps, of the same owner or of another owner, should be entered upon for the due execution of the particular public purpose. It is well to remember that we acquire the land the moment there is the Gazette notice of the compulsory acquisition ; and, under the present law, it is competent for us to enter any adjacent land under the conditions I have already mentioned. The Commonwealth, or the Departments which are associated with these works, are not seeking to maintain the extensive powers they have now of entering what mav be called adjoining land.
– Have those powers been abused?
– I do not know that the powers have been abused, but this provision is distinctly in favour of the private owner - it leans towards the private owner rather than to the Commonwealth. If we do not want these extensive powers, I do not see that there is any necessity to extend them beyond the limit proposed by the clause under consideration. I do not think there is any necessity for the power to enter adjoining lands of the same or some other owner, and to use them temporarily, unless we enter the land with the actual object of executing the particular purpose in respect of which the land is acquired. That should be the determining point, namely, that we are entering on the land for business, so to speak - that we are entering in pursuit of the particular public purpose. The fact of having acquired or purchased other land for a public purpose should not be the determining fact. I hope that the Committee will allow the clause to stand as at present, and permit the right to enter adjoining lands to be based on the proceedings in the actual execution ofthe public purpose, rather than on the acquisition of adjacent land.
– I am rather surprised at the attitude of the Minister, because I understand him to have insisted on the perfect safety of giving the Commonwealth such powers as may, under any circumstances, be requisite, leaving it to the good sense of the officers, under the control of Parliament, to see that the powers are not abused. The difficulty pointed out by Senator Symon - to which Senator Keating has not referred - is that it might be necessary to carry out a public purpose promptly, and, in order to do so in a case of emergency, the Government might resume the land by compulsory process. The mere fact of the notification in the Gazette places the land in the possession of the Government ; and it might be desirable to enter adjoining lands in order to erect preparatory works.
– That is the point.
– But under the Bill the Government would not be able to enter adjoining land until the actual work of carrying out the public purpose - it might be the erection of a battery, or any other building - was in progress on the land resumed by notification. It only requires a very slight measure of thought to see that, before any undertaking of the kind is started, there must be works, and tools, and other implements. But Senator Keating says, “ No, we will start the erection of the building or the construction of the work - the fulfilment of the purpose - before we have the facilities for doing so.”
– Before beginning the work, the Government might want to satisfy themselves that the land was suitable, and they would not be able to do so.
– Exactly ; they might not be able to commence the work until they had tested the adjoining land by making surveys and so forth. It seems to me that the Minister might accept the amendment, even if reluctantly-
– The honorable senator need not go any further; I will accept the amendment.
– I am glad that the Minister has accepted the amendment. I could not see how the land could be required for any but a public purpose, though I understood theMinister to say that other than a public purpose might be the reason for taking it.
Amendment agreed to.
Clause also consequentially amended.
Senator Sir JOSIAH SYMON (SouthAustralia) [11.13]. - I now desire to repeat the suggestion that clauses 23 and 24 should be combined, so that the two matters maybe dealt with in one provision, as in the existing Act. I do not submit an amendment in form, but merely call attention to the matter. Senator Keating, as an experienced lawyer, will see what might be the effect of leaving clause 23 unrestricted as it is, and that the combining of the two clauses would provide a guideto the purpose for which entry may be made.
– This clause imposesa restriction, so far as time is concerned.
– So does the existing section. I do not know whether there is any particular reason why the two provisions should be separate, but I can see none ; and there would be a great disadvantage to the owner or occupier, in that he would have no power to restrict the occupation. The owner would not be able to point out to the foreman or manager over a great body of workmen that while there was power to enter on the land to take stone, gravel, and so forth, there was no power to establish anything in the nature of a village or canteen for the purposes of supplying the men with necessaries. That, of course, does not ariseunder clause 23.
Clause, as amended, agreed to.
Clause 24 -
The Minister and all persons authorized by. him may, in connexion with the carrying out of any public purpose, exercise on or in relation toany land occupied by him under this Part ofthis Act, all or any of the following powers : -
The power to take clay, stone, or earth shall not be exercised in respect of any stone or slate quarry or brickfieldin actual work.
Senator Sir JOSIAH SYMON (South Australia) [11. 15]. - This clause differs to some extent from the corresponding section of the existing Act, but the Minister may be able to explain the reasons for the variation. The powers given are very much enlarged.
– Does the honorable and learned senator mean as to time?
– No, the powers are given with a great deal of detail in this clause. I direct the Minister’s attention: to the first part of subclause 1, which says -
The Minister and all persons authorized by him may, and then this is all new matter - in connexion with the carrying out of any public purpose, exercise on, or in relation to, and so on. Clause 23 gives the right to enter upon and occupy adjacent land, and the Minister may exercise on the land which he has occupied, certain powers. I do not understand what is meant by the expression “in relation to” land. Draftsmen very often introduce unnecessary words, believing that they give additional force, and that is probably how these words have been introduced into this clause. However, they, are as: used here important. They are not merely unnecessary, but might prove to be very inconvenient to the land-owner. To exercise these powers “ in relation to” land is unintelligible. I move -
That the words “ or in relation to,” line 3, be left out.
– These words have been introduced to take the place of a -number of different prepositions which might properly be used in conjunction with the preposition “on.” It might be correct to say that we could take clay “ from “ the land, or stone, gravel, earth, timber, wood, or material “on “ the land, but the preposition “on” will hardly apply if taken in conjunction with some of the powers set forth in the clause. For instance, there is the powerto make cuttings or excavations, and some persons would think that it would be more correct in that connexion to use the expressions “in “ the Hand or “ through “ the land. The words “in relation to” have been substituted for the expression at first suggested “ on, in, or through,” and in order to cover all cases, whether the preposition “on” could be properly applied in connexion with the powers granted or not. It would obviously be correct to say that the Minister might erect workshops “on” the land, but that preposition would not foe appropriately applied where the power given is to make cuttings or excavations. It is for these reasons that the words “or in relation to” have been introduced.
– They will only cause difficulty.
– I think that the honorable and learned senator need not anticipate that any difficulties are likely to arise from the use of this expression.
Senator Col. NEILD (New South Wales) [11. 22]. - Thediscussion is very like the serious debate in a literary society on the question whether when a house is on fire it burns up or down. I think that we cannot have works “in relation to” a piece of land.
– We cannot take bricks “ in relation to” a piece of land.
– I believe that Senator Symon is doing all that he can to make this a perfect Bill, but I point out to the honorable and learned senator, and to Senator Neild that things might be done “ in relation to “ lands which many lawyers, and even courts, might decide were not done “ on “ the land. I may be the owner of a strip of land two or three chains wide, through which the Post and Telegraph Department might decide to run a telephone tunnel. The opening of the tunnel might be at. some distance from my land on the one side, and the end of it might be at some distance on the other side. In the circumstances, it might not be necessary that the Minister should go “ on “ the land at all. I should like to know what harm is likely to arise if the words “ in relation to “ are allowed to remain, and whether they might not be necessary, in case of a dispute, with respect to easement in such a case as that to which I have referred ?
Senator Sir JOSIAH SYMON (South Australia) [11.25]. - It isvery. useful to discuss these matters fully, and I am indebted to Senator Keating for what he has pointed out. My desire, as Senator McGregor has been good enough to recognise, is to make the Bill as clear as possible. The instance to which the honorable senator has referred rnakes it quite clear that the words “ in relation to “ are not required. If the Commonwealth desired to run a tunnel through land, they would have to acquire it. This clause has no relation to that state of things. It refers to lands adjacent to land acquired by the Commonwealth, and merely enables the Commonwealth authorities not to run a tunnel through those adjacent lands, or to acquire a single foot of them above or below ground, but to occupy the surface, and to take material from it. The authorities of a State, for instance, acquire the land on which a railway ‘is constructed, but they have the right to go, it may be, 200 yards on either side of the line, and occupy adjacent land for the purpose of taking ballast. That is dealing only with the surface of the land.
– It might be necessary to make a tunnel through land for a temporary purpose.
– It could not be done on the land referred to in this clause.
– Might it not be regarded as an excavational cutting?
– No. If the Minister will look at the corresponding section of the existing Act, he will find a reference to side cuttings or excavations, the object of the provision being that where, in connexion with the construction of a work, it becomes necessary to side-cut into adjacent land, that shall be looked upon as merely taking material, and it shall not be necessary to acquire the land.
– Would the words “in relation to “ cover the carting of material over land?
– No, that is all covered, by the powers given to take clay, &c, and by the general power to occupy given in clause 23. If Senator Keating can show that there is any object to be gained by the retention of the words “in relation to,” I shall have no more to say, but from considerable experience I know that the use of superfluous words in Acts of Parliament gives rise to litigation. The use of these words in this clause appears to me to be quite unnecessary, and might give rise to difficulties of interpretation.
– I desire to draw the attention of the Committee to a rather serious alteration of the law, which is proposed in subclause 2. It says -
The power to take clay, stone, or earth shall not be exercised in respect of any stone or slatequarry or brick-field «n actual work.
That is different from the provision ir» section 53 of the existing Act, which reads as follows : -
Provided that no stone or slate quarry, brickfield, or other like place which, at the . commencement of this Act, is commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the same, shall be taken or used by the Minister for any of purposes lastly hereinbefore mentioned.
The provision in this Bill to exempt only a brick-field o:’ quarry in actual work might create an opportunity for injustice or hardship to be inflicted upon private individuals. Within my own knowledge there are many brick-fields which are not always in actual work.
– It is noi’ intended that the words “ in actual work “ shall mean in actual work at the very point of time.
– I am sure that the Minister does not desire 10 use any words which would leave room for a very considerable measure of doubt, but wishes to clearly express the intention of the Legislature. There are many brick-fields and quarries which, for various reasons, are worked periodically. Under the existing law where a quarry or brick-field is so worked it is not necessary that it should be in actual work at the date on which the Commonwealth proposes, for a public purpose, to utilize the land. I think that instead of having the shorter provision in sub-clause 2, it would1 have been much better to follow the lines laid down in section 53 of the present Act. I do not propose, unless the Minister is agreeable, to move the adoption of subsection 4 of that section.
– The difference which we really want to effect is that caused by striking out the provision making the commencement of the original Act the determining factor.
– Yes. What I imagine the Minister wishes to exclude is a brick-field which has been actually abandoned, and in respect of which, when the Commonwealth intervenes, the owner of the land may put forward a bogus claim. I have no sympathy with anything of that kind. There are brick-fields and quarries which, owing 10 the peculiarity of the district, are only worked at certain periods of the year, but which, to all intents and purposes, are live business concerns. If the Minister is agreeable, I shall move the omission of sub-clause 2 with a view to insert in lieu thereof subsection 4 of section 53 of the Act, minus the words “ at the commencement of this Act.”
– Do not convert this sub-clause into a proviso, but alter it on the lines of the existing provision.
Senator Sir JOSIAH SYMON (South Australia) [11.34]. - I think that what the Minister means is that we should retain the phraseology of sub-clause 2, but make it read in this way -
The power to take clay, stone, or earth shall not be exercised in respect of any stone or slate quarry, brick-field, or other like place, unless worked or used forgetting materials therefrom for the purpose of selling or disposing of the same.
I move -
That after the word “ quarry,” in sub-clause 3, the word “ or “ be left out.
– I would prefer that a more definite provision should be made. I entirely agree with Senator Millen that because a quarry or brick-field had not been worked on a Sunday orbecause the proprietor had knocked off work in order to take a holiday, it would be very improper if a representative of the Commonwealth Government could go upon the land and occupy it. I think that the term “ commonly,” used in section 53 of the existing Act, is so indefinite that it might lead to endless litigation, that is, if there was any necessity for temporarily occupying any land. In my opinion it would be far better to fix a period, say six or twelve months, within which the quarry had been worked. Perhaps Senator Millen or Senator Symon, particularly the latter, might suggest an amendment to carry out that idea. I think that they will agree with me that. a provision to that effect would be more definite, because, unless a definition of “commonly” were inserted in the interpretation clause, it would be difficult to gather what was meant. If the provision be left as it is, however, we might define “in actual work” in the interpretation clause, but certainly I think that a more suitable word than “ commonly ‘ ‘ might be used.
Senator Sir JOSIAH SYMON (South to suggest something which would meet the case, but I am perfectly certain that the expression “commonly worked or used” does absolutely meet the case. I would point out to Senator McGregor that it would be impossible to lay down any arbitrary rule. Suppose that we were to fix the time at three or six months. On the hills near my residence there are quarries on private lands, from which, perhaps, for six months in the year a stone is not taken. It is generally understood that these are quarries, and the district councils get stone from them. That is often the case with brick works, too, as I know places which, for many reasons, are shut up for a time.
– Suppose that a person who desired to block the Government, or to do anything which was unfair, simply went and worked for a day in a quarry which : had been disused for years. Would the use of the word “commonly “ prevent an attempt of that kind ?
– Certainly it would.
– Perhaps “ordinarily” would be a good word to use.
– I merely tookthe word “ commonly “ because it is used in section 53 of the existing Act. I think that it is a very good word, and that it would effectually prevent and meet the case suggested by Senator McGregor, because that would not be a quarry commonly worked. If a man worked a quarry for a period of six months in anticipation of a public undertaking, and every one in the locality believed that it had been disused, it would be as easy as possible to check him. If we used the word “commonly. “ I should do nothing to help a man to do that kind of thing, because it would be dishonest. I prefer “commonly “ to “ ordinarily,” because it is stronger. “ Ordinarily “ might impart an element of time, whereas “ commonly ‘ ‘ means that it is aquarry which, although itmay be disused for even twelve months or two years, is nevertheless a quarry.
Amendment agreed to.
Amendments (by Senator Sir Josiah Symon) agreed to -
That after the word “ brickfield,” in subclause 2, the following words be inserted : - “ or other like place commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the. same.”
That the words “ in actual work,” in subclause 2, be left out.
Senator Sir JOSIAH SYMON (South Australia) [11.42]. - Before the clause passes, can the Minister tell us whether there is any particular object in apparently enlarging the power given in the existing Act for taking earth by side cuttings from land, depositing earth thereon, obtaining materials therefrom, for constructing or repairing the work and forming roads thereon ? I notice that in section 53 of the present Act no power is given to erect workshops, sheds, and buildings of a temporary character, and to manufacture goods or articles required for carrying out the public purposes’.
– The only reason for the alteration is to give the Commonwealth the fullest powers in the execution of the public purpose. Of course, provision is made for compensation to be given in every instance in which the Commonwealth, by the exercise of any of these powers, might endamage an individual. The clause abundantly sets forth the powers, and at the same time due regard is had to the interests of the individual by making provision that he shall be properly compensated.
Clause, as amended, agreed to.
Clause 25 -
– In this clause I observe a departure from the corresponding provisions in the existing Act, no time being set out within which the Minister shall pay rent for the land temporarily occupied. Under the existing law, not only has the Minister to pay within a specified time rent for land temporarily occupied, but within one month he has to pay the value of any crop or dressing which is on the land, or which may be destroyed or rendered valueless by reason of the occupation. That provision is omitted from this clause, arid it seems to me to be extremely un desirable that the rights of private owners should not be clearly expressed. I should. like to hear some explanation of the clause before submitting any amendment, because I assume that the alterationhas not been made in a haphazard way. The two alterations made are, first, that there is no time limit within which rent may be paid., and, next, that there appears to beno express provision by which the Minister shall pay for injury to crops or dressing.
– We provide for compensation.
– The compensation: appears to apply to damage to the land.
– No; it applies togeneral damage.
– It may be that the amendment which Senator Symon is to move at the end of the clause will sufficiently protect the rights of individual landowners, but there is the further point that where the Crown takes away the value of a crop which the owner has on his land, and which he could convert into money, there ought not to be an indefinite period within which he shall be paid for it. The Crown should pay promptly where it takesfrom a land-owner that which represents hiscurrent income. More particularly do I express these views in face of the fact that in our extremely economical way of dealing with other people’s money we have limited the amount of interest payable to 3 per cent. Very few people engaged in land occupations can finance at 3 per cent., and’ I doubtvery much whether the Commonwealth itself could raise money, including all charges, at that rate.
– It could not do anything of the kind.
– As the interest which would have to be paid by an individual would be at least 31/2 per cent., it seems to me that we are not merely offering no inducement to pay promptly, but are really offering a premium to delay payment. I am sure that there would be nodelay of special purpose, but any one who has had any experience of obtaining payment from the Treasury of a State knows perfectly well that it is one of themost difficult things to obtain the reimbursement of money. Therefore, it is desirable that we should adhere to the existing law, and get a time limit within which payment of the kind indicated shall be made to the owner.
– The existing section deals with the compensation to be paid for the value of any crop or dressing, as well as for any damage of a temporary nature. In the clause under discussion we make specific provision for the Commonwealth to pay to the owner of the land rent for temporary occupation.
– No time is mentioned within which the rent is to be paid.
– In the existing Act the time limit of one month; is left out in regard to rent’. We provide in a subsequent clause that the amount of rent shall be settled by agreement between the Minister and the owner or occupier, or, if no agreement is made, by any Court having jurisdiction to entertain1 an action for compensation. It is obvious that if the Minister enters into temporary occupation, you cannot say that, from his actual entry, one month shall be allowed him for the payment of rent. It might be that he would occupy the property for a long or for a short period ; and it might be that, in other circumstances, he would pay a lump sum agreed upon by himself and the other interested parties. It would be inexpedient for us to lay down a hard-and-fast rule that rent should be paid within one month. In the existing Act it is simply provided, so far as rent for temporary occupation is concerned, that it shall be paid half-yearly or quarterly, as the case may require. So far as damage , is concerned, whether it be by way of injury to a crop or otherwise, we deal with compensation generally in Part IV. of the Bill. Clause 32, subclause 1. is very wide and general. Under it, any damage of any kind occasioned to an individual by the occupation1 of his land would be recoverable by him. It reads -
Where, by reason of the execution of any powers under Part III. of this Act, the owner or occupier of any land suffers damage, he shall be entitled to compensation under this Act.
– Is there not a definition of the nature of the damage which imposes a limitation?
– No. I think that any damage which might be suffered by reason of the exercise of any of the powers given under Part III. would be properly the subject of a claim for compensation. The damage is not necessarily confined to any alteration in the character or nature of the land. The removal of crops, the preven tion of sale, the prevention of letting to a tenant, or anything of that character, would clearly come within clause 32, and be damage occasioned by the exercise of the powers of the Bill in that respect. The persons injured would; be entitled to claim compensation. I think that the amendment indicated bv Senator Millen would be hardly appropriate ; but, if it were necessary, it might be set out more distinctly in clause 29 that rent shall toe paid quarterly or half-yearly, as the case may be.
– There is a limit in the existing law to insure that the payment shall be prompt. I am not wedded to a month, but it apears to me that there may be delay unless there is some obligation upon the Commonwealth to pay promptly.
– Probably we could insert words in sub-clause 2 to provide that the rent shall be paid quarterly or halfyearly. Otherwise there would be no means of ascertaining from what point of time the month should run.
– Why not provide that the Court may allow interest on rent?
– The Court limits the amount to 3 per cent., an utterly inadequate rate.
– We could make provision that interest should run on the rent if it were not regularly paid.
Senator Sir JOSIAH SYMON (South Australia) [11.56]. - I will make a suggestion which may meet the point as to the elimination of the words of the existing Act, and will also meet the Minister’s view. At the end of the clause giving compensation for damage in regard to temporary occupation we could add the words, “ such compensation to include the value of any crop or dressing an the land.”
– Clause 32 deals generally with compensation for the exercise of any powers given under Part III.
– That clause is a reproduction in three lines of section 68 of the Land’s Clauses Consolidation Act, and I doubt whether it goes to the extent that it ought to do. When we come to it I intend to suggest an amendment.
– I think it covers all damage.
– It does not refer to temporary occupation. Section 68 of the Lands Clauses Consolidation Act extends to lands that are injuriously, affected by carrying out works. The provisions, we are discussing do not concern that subject. They refer to the power of temporarily occupying what are called adjacent lands. Therefore, the compensation under these clauses is not that covered by section 68 of the Lands Clauses Consolidation Act. The draftsman has inserted express provisions for damage in Part III. of this Bill, because it is like the compulsory leasing of adjacent lands not more than 200 yards away, for the purpose of being temporarily occupied. These provisions are in the nature of a contract. They have nothing to do with the injury caused, which would come under clause 32. There are three cases to be dealt with. There is first compulsory acquisition. Secondly, there’ is damage in respect of injuriously affecting other lands by carrying out works. Then there is the third category which we are now dealing with - temporary occupation by virtue of statutory powers to enable us to get material and other facilties in carrying out work. That is mot injurious affecting, and the remedy is practically contractual.
– The only question that remains is the prompt payment of rent, which has become more important since I last addressed the Committee. It has been pointed out that there is no interest payable in respect of rent due by the Commonwealth, but only in respect of compensation. I move -
That the words, “ to be paid,” line 7, be left out, with a view to insert in lieu thereof the words “shall be paid quarterly or half-yearly and “-
.- Honorable senators who Save spoken up to the present seem to have lost sight of the fact that we are dealing only with the temporary occupation of land. In most cases, I should imagine temporary occupation would extend to three months, or six months at the outside.
– It might extend for years.
– That is so; but in most instances the purpose of the temporary occupation would be to get clay or gravel, or other similar material; and, until the quantity taken has been ascertained, the rent, in three cases out of four, could not be assessed. In my opinion, the insertion of the words proposed by Senator Millen would not meet the case; and I prefer my own. suggestion, that we should allow the Court to order the payment of interest, if there is any undue delay in the payment of rent. The Court would take into account the whole of the circumstances, and award the interest accordingly.
Senator Sir JOSIAH SYMON (South Australia) [12.4]. - I agree with the view taken by the Minister and Senator Millen, because not rent, but compensation, would be fixed in the case of entering on land for t’he purpose of taking away a few loads of earth. The most careful provision is made that the rent shall be settled; and, that being so, the rent should be paid at least quarterly. That would be much better than to provide that interest shall be paid in case of delay in payment for, perhaps, a week.
– If the Minister is not satisfied that the language of the amendment clearly expresses what we mean, the clause can be recommitted.
Amendment agreed to.
Amendment (by Senator Sir Josiah Symon) proposed -
That sub-clause 3 be left out, with a view to insert in lieu thereof the following new subclause : - “ 3. The Commonwealth shall pay compensation to the owner and occupier of land for any damage . done or sustained in exercising the powers, or any of them, conferred by this Part of this Act (such compensation to include the value of any crop or dressing on the land.)”
– L desire to point out that Part IV. of the Bill is headed “ Compensation,” and deals entirely with that matter. Clause 32, in Part IV., is drawn in the most general terms, to insure that compensation shall be recoverable by any person who may be damaged by the exercise of the powers under Part III. Clause 32 provides -
It seems, therefore, that to insert an amendment expressly providing for compensation in Part III. is unnecessary, and, moreover, I suggest that such an amendment might be dangerous in other directions. For instance, if we specify some particular character or class of damage, the question may naturally arise whether that expressed provision might not be construed to exclude other classes of damage, which appeared more or less remote in their’ character.
Clause 32 has a second provision, as follows : -
Where the Minister or any person authorized by him enters into the temporary occupation of any land, the compensation shall include -
If there be those general terms, which are intended to cover every class of damage occasioned by the exercise of the powers under Part III., and. in addition, we specifically enumerate other classes of damage in Part III., it might be argued, with some show of reason, that the express mention of crops impliedly excluded other forms of damage.
– It would make the crops safe, at any rate.
– That is so, but the crops will be safe under Part IV.
Senator Sir JOSIAH SYMON (South Australia [12.11]. - The object of clause 32 is, probably, to cover what I have suggested ; but Part III. deals exclusively with the temporary occupation of adjacent lands, and has nothing to do with lands acquired. Lands are to be acquired under Part II. of the Bill, while Part III. deals, as I say, with the temporary occupation of adjacent lands. It is obvious that, for the purpose of lucidity, we ought, as far as possible, to keep Part III. clear andcomplete in itself; because Part IV. deals solely with compen sation in respect of the acquisition of land.
– Or of any of the provisions of the Bill.
– Clause 32 does that; but all the other provisions of Part IV. deal with, compensation - that is, the value of the lands taken, and the compensation to be paid to the owner and occupier. It is obvious that, in preparing sub-clause 3 of the clause under consideration, the draftsman had in his mind the necessity to convey to the owner of adjacent lands, whose occupation was interfered with, that he was entitled to compensation. Then we have to go to Part IV., which does not deal with the subject of temporary occupation, in order to see what compensation such owner would be entitled to. I suggest that it would be much better to adopt the amendment I have proposed.
– The mere fact that sub-clause 3 was inserted shows that, in the opinion of the draftsman, clause 32 was insufficient.
– First the sub-clause was not in its proper place, and, secondly, it might or might not be sufficient. The Minister, if he will be good enough, may confer with the draftsman as to the simplification of the clause which I suggest, in order to make it cover any cases which it does not cover in its present shape.
– Sub-clause 3 of this clause has been inserted as an indication that the rent to be paid in respect of the temporary occupation of land shall not necessarily constitute the whole of the compensation to which the owner or occupier of such land is entitled. The clause provides that the Minister shall pay rent for the temporary occupation of land, and sub-clause 3 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.
With regard to that compensation, an owner of the land would naturally look at the part of the Bill, headed in large letters, “ Part IV., Compensation,” and in clause 32 he would find a statement in very wide and general terms that he is entitled to compensation for temporary occupation. In sub-clause 2 of that clause, he would find that it is provided that -
Where the Minister or any person authorized by him enters into the temporary occupation of any land, the compensation shall include -
damage of a temporary as well as of a permanent character ; and
the value of all clay, stone, gravel, earth, timber, wood, materials or things taken for carrying out the public purpose.
It will be admitted that it is desirable that we should have all general provisions as to compensation as far as possible included in one part of the Bill. We are dealing in this part of the Bill with the powers of the Minister in relation to lands. One is the power of temporary occupation of what might be called adjacent lands, subject to the payment of rent, with a specific intimation in sub-clause 3 of clause 25 that the payment of rent does not neces- saril v prevent the owner of the land from claiming other compensation. As I have said, he would naturally look to the part of the Bill dealing with compensation to ascertain what are the principles as to compensation enacted by this Bill. He would find general provisions for compensation in all cases of damage, and specific provision in the case of damage resulting from temporary occupation, and’ the taking from temporarily occupied land of material of any kind. I think that it is better that the Bill should be allowed to stand as it is, and that those who have to work under it will find that its arrangement is as good as can be desired.
– I should like to remind the Committee of what took place when we were discussing this matter a little time ago. It was then pointed out that in the existing law there is an express provision dealing, with this matter contained in sub-section 2 of section 49, which provides that -
The Commonwealth shall pay compensation to the occupier of the land for any damage done in carrying out the powers conferred by this section.
In the Bill now submitted, instead of that positive declaration, we have the negative provisions contained in sub-clause 3 of clause 25 -
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.
The provision of the existing Act clearly sets out that compensation shall be paid, and we are asked to substitute for that positive provision the negative provision of sub-clause 3, of clause 25. When the matter was previously referred to, the Minister agreed that under this sub-clause the owner or occupier of the land would have to fall back upon his common law rights to compensation, and the honorable and learned senator assented to the proposition that it would be better that we should insert a positive statement of what we intend. I think” that it would be much better to adhere to the provision of the existing law, and say that the owner or occupier shall be paid compensation for any damage sustained bv reason of the temporary occupation of his land. I am surprised that the Minister, having ‘assented to that proposition in the course of this morning, should now find1 himself once more in what I assume to be an inquiring frame of mind.
– I enter into this debate with a very great deal of diffidence, because we are discussing a highly technical Bill, but it seems to me that there is an obvious reason for the in sertion of sub-clause 3 of clause 25, in the negative form to which Senator Millen has referred. We have provided in the clause specifically for a form of compensation which does not arise in connexion with the other forms of the acquisition of land. We have provided for compensation iri the form of rent for the temporary occupation of land, and lest it should be assumed that rent is to be the only compensation given, we say, in sub-clause 3, that nothing in this clause shall deprive the person whose land is temporarily occupied, of the right to compensation for damage sustained. Then, in subclause 3 of clause 32, we set out in the most comprehensive form, what are those rights of compensation, and they cover any damage sustained in the carrying out of the provisions of the law. I think that the Bill is sufficiently clear. My experience leads me to the conclusion that it is unwise to specify a particular form of damage, unless we desire that the compensation shall be restricted to that. I feel that I am bound, in the circumstances, to support the Bill as it stands.
Senator Sir JOSIAH SYMON (South Australia.) [12.23]. - Senator Trenwith is absolutely right in supposing that if we leave clause 25 as it stands sub-clause 3 of that clause is necessary ; otherwise it might be contended that, because we provide for an occupation rent, we inferentially declare that that is the only form of compensation Jo which the owner of the land is entitled. . No one desires that, but subclause 3 will become unnecessary if we insert a substantial provision, giving the owner or occupier of the land the right of compensation to which we think he is entitled.
– That is to say, if we substitute sub-clause 3 of clause 32, for sub-clause 3 of clause 25 ?
– Or the shorter form which I have suggested.
– What is the difference?
– I do not suggest’ that the Minister should adopt my drafting. But if we put into this clause a provision for compensation for damage arising from temporary occupation, we shall do in the one clause, what is now done in two clauses. My amendment reads -
The Commonwealth shall pay compensation to the owner and occupier of the land for any damage done or sustained in exercising the powers or any of them conferred by this Part of this Act.Such compensation to include the value of any crop or dressing on the land.
– I see no reason for the last portion of that provision, because it is sufficientlyimplied.
– Quite 10. It is possible that if we provided for compensation for any damage done or sustained that’ would include the value of a crop upon the land, but the word’s I have used are those . which appear in the existing Act. and they are required in order that there may be no doubt that the value of a surface crop and not merely the damage to it shall be taken into consideration. It is, I think,only fair that if the Commonwealth temporarily occupies land on which a crop is growing, we should pay for the whole of the crop and not merely for the portiondamaged. A crop of 40 acres is onething, and a crop in patches is a very different thing
– Compensation to the extent of the value of the whole crop might amount to more than the injury inflicted.
– Clause 32, to which reference’ has been made in anticipation, is included in Part IV. of the Bill, headed “ Compensation.” That part of the Bill is divided into a number of divisions. Division 1, for instance, deals with the “Right to Compensation.” Division 2deals with “ Claims for Compensation,” and contains all necessary provisions as to time of putting in claims, the procedure in respect of claims, and when claims become disputed.
-They would apply equally to compensation dealt with in a sub-clause inserted in substitution of sub-clause 3 of clause 25.
– I am afraid not.
– Yes, it would be compensation for damage.
– Yes ; but we have in this Bill what might be called a complete system of provisions with respect to compensation. These are set out in different divisions of Part IV. I have mentioned the headings of two of these divisions, and division 3 deals with the “determination of “ Disputed Claims for Compensation “ : division 4 with the “ Determination of Compensation where no Claim made” ; division 5 with “ Payment of Compensation.” That part of the Bill is, so to speak, complete in itself, and its various provisions are inter-related. It might be dangerous 10 take out of these general divisions some particular classes of damage, and insert provisions dealing with them in another part of the Bill. It is desirable to have all these provisions with respect to damage in the same part of the Bill. There can be no doubt that in the way in which the Bill has been framed, sub-clause 3 of clause 25 is treated in every respect in the same manner as any ordinary claim for compensation, as to the time within which the claim shall be made, the manner in which it shall be prosecuted in the event of difference, and also with regard to payment and interest, and the determination of the claim, when no claim has been forwarded, or when, after it has been forwarded, it has not been prosecuted. It is desirable that all these provisions should apply in every instance where compensation is being paid in respect of land actually acquired for a specified public purpose, or in respect of land temporarily occupied. That is, I think, a consideration which will appeal to my honorable and learned friend, who will see that even if there were, perhaps in an individual case, some inconvenience in the fact that the claimant for compensation would have to consult two different parts, yet, forthe general working of the law, it is desirable that it should be free from any ambiguity or doubt that this particular claim for compensation shall be subject to all the general provisions in the several divisions of that part of the Bill entitled “ Compensation.”
Senator Sir JOSIAH SYMON (South
Australia) [12.31]. - Of course, I do not wish to interfere with the arrangement of the clause, because the Government are responsible for that as well as the actual drafting. Therefore, as the Minister makes the appeal on that ground, I shall not press the amendment, and we can deal with the details ofclause 32 when it is reached. I should expect to receive similar treatment.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 26 -
The Minister shall, if required by the owner or occupier of the land so to do, separate any land occupied in pursuance of this Part of this Act from any adjoining land by a sufficient fence, with such gates as may be necessary for the convenient occupation of the land.
Senator Sir JOSIAH SYMON (South) Australia) [12.32]. - This is, I think, a distinct improvement upon the provision in the existing Act. Suppose, however, that there was a dispute, who would judge or how would it be determined whether the fence required by the owner or occupier was necessary for the convenient occupation of the land or not?
– This is an obliga-tion which is thrown upon the Minister, and I presume that, as far as possible, he, through his officers, would consult with the individual in case there should be a refractory individual or official.
– Or a legitimate difference of opinion.
– Yes. The obligation to do this thing would come up probably for consideration by a Court.
– But where?
– In connexion with the compensation that would be claimed.
– Not as to the making of a fence.
– I think so. Suppose, for instance, that the Minister should fail to sufficiently fence, surely that would be damage occasioned by the exercise of the powers conferred in Part III.?
– The Minister knows that under the Lands Clauses Consolidation Act that is called an accommodation work, and is dealt with by a different tribunal. I only wish to know whether there is a similar provision in the Pill?
– Will the Minister consider that point?
– Yes. The individual who felt aggrieved would say that the Minister had exercised the powers under Part III. of the Act, and that the fact 5hat he had not carried out his obligation to sufficiently fence had endamaged him, and, therefore, he would claim compensation in a Court of competent jurisdiction.
– The point would be whether a fence was necessary.
– The Court would determine whether or not the Minister had fulfilled his obligation. In nearly every instance the officers of the Departments come to some reasonable arrangement with the owner of the land, and very often the provisions of the Act have to be relied upon only when an actual agreement has been entered into.
Senator Sir JOSIAH SYMON (South Australia) [12.35]. - I merely wished tq know what provision was made in respect of what are called and ordinarily understood to be accommodation works. A difference of opinion very rarely arises, because the persons are reasonable in regard to fencing,, and all that kind of thing. But if an occupier or owner should require a certain fence to be erected, and regard it as necessary, and there should happen to le an honest difference between the persons looking after the work and the owner or occupier, who would settle it? I merely suggest to the Minister that he might look into the matter, and see whether there is provision made to meet such a case. I believe he will find that it would not be included in the compensation for damage. This is included in accommodation work’s, and is determined usually under the pro.cedue of the States by Justices.
– If it were shown that there was insufficient protection, would r.ot that be a ground for asking for further compensation if damage resulted?
– If damage resulted. I ask the honorable senator to look at the wording of the clause. It applies to what is ordinarily called accommodation works, such as, for instance, level crossings in connexion with railways. These have nothing to do with the matter of compensation.
– Assuming that the Minister was wrong, and that damage had resulted from his failure to do what the owner required, would there not be ground for a further claim ?
– No. The Minister would say, “I am not going to give damages, because you got your level crossing.” That would not be part of the compensation. The owner would have to go to the tribunal created, bring his claim forward, and apply for an order that the Minister should give the accommodation. It is temporary here, but it would be permanent in the case of a railway. That is a different question from compensation. It is a question of whether there is to be an accommodation work for the purpose of facilitating the convenient use of the owner’s land. I shall be glad if, when we reach a later part of the Bill, the Minister will intimate what provision is made for settling a dispute.
Clause agreed to.
Clause 27 -
Where any land (other than Crown land of a State) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act.
Senator Sir JOSIAH SYMON (South Australia) [12.38]. - In this clause, and in others, it will be as well to leave out the words “ of a State “ where they come after the expression “ Crown land,” because the definition of “Crown land” in the interpretation clause renders them unnecessary. I move -
That the words “of a State” be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 28 -
Amendment (by Senator Sir Josiah
Symon) agreed to -
That the words “of a State,” line 1, be left out.
– Whatever legislation we enact is subject to the provisions of the Constitution Act. It is quite an unnecessary parading of a simple and well-known fact to set out that this clause more than anyother is subject to the Constitution. Therefore I move -
That the words “ subject to the Constitution,” line 3, be left out.
Amendment agreed to.
Senator Sir JOSIAH SYMON (South Australia) [12.41]. - Sub-clause 3, which is new, requires considerable attention, and I think ought to be eliminated. Whatever compensation a State is entitled to get it should receive. In regard to land ordinarily acquired, apart from the Federal territory, there can be no question of rights of dominion, though there mightbe a question of rights of taxation. In regard to the acquisition of a quarter acre block of land it is absurd to talk about rights of dominion. The term is absolutelyillusory..
The question of imposing a land tax would have to be determined as a revenue problem. Again, why should not a State get compensation for severance, as well as any individual? Suppose that there was a block ofland upon which. State buildings were erected, or State industries carried on, and that, owing tothe paramount national necessity, the land was taken. Why should not the State get compensation for severance when damage had resulted therefrom? If we place the States, in regard to the compulsory acquisition of lands, in the same position and under the same disabilities as an individual owner, why should it not get the same advantages? It does not seem to me to be fair to give this right to the individual owner, and to take it away from the State. Again, in respect of any injury to other land of the State, why should not the State get compensation therefor? We are all agreed that the State should get no more than the private individual, but there is no reason why any favour should be shown to the latter.
– This provision recognises that, where the Commonwealth is acquiring property from a State for public purposes, in the vast majority of instances it is making that acquisition by virtue of the operation of the Constitution in transferring many Departments from the States. The transferred Departments have associated with them a certain amount of property which has been transferred to the Commonwealth under section 85 of the Constitution :
When any Department of the Public Service of a State is transferred to the Commonwealth -
All property of the State of any kind, used exclusively in connexion with the Department, shall become vested in the Commonwealth ; but, in the case of the Departments controlling Customs and Excise and bounties, for such time only as the GovernorGeneral in Council may declare to be necessary.
As honorable senators are aware, the State properties transferred were used before Federation in connexion with Departments of the States. The States did not impose taxation upon their own properties as they did upon the properties of private individuals. We, as the custodians of the revenues now being derived from those properties, are custodians for the Commonwealth, and the States. It would be highly inexpedient, therefore, if a State were to make, in respect of any transferred property - and it is to be remembered that the assessment or adjustment of compensation to be paid to the States is by this’ Bill determined - any claim in respect of loss, because they are no longer able to tax the properties, seeing that they never taxed them while under their own control. Nor would it be right that they should claim as a constituent of their compensation loss of revenue through parting with the properties.
– Is the honorable senator inferring that the land which came over to the Commonwealth by virtue of the Constitution would be affected by this Bill ?
– Yes, in determining the amount of compensation to be paid. When the existing Act was before Parliament a considerable amount of discussion took place upon this subject, and one Thursday evening, if I remember rightly, the debate, which had occupied a long time, caused the then Vice-President of the Executive Council* Senator O’Connor, to state that he would bring down some amendments on the following day to deal with that particular class of case. He did so. It is desirable that the States should not be allowed to make any claim in respect of loss of taxation rights over the great bulk of the properties taken over from the States; nor should they claim compensation in respect of loss of dominion or loss of revenue entailed by parting with those properties. There has merely been a transfer from one authority to another by virtue of the Constitution. The same interests are at stake, namely, the interests of the people of the Commonwealth. I do not think that the States will be prejudiced, and the provision will, at any rate, prevent many additional complications being added to the already difficult problem of determining the amount of compensation to be paid to the States on account of properties transferred under section 85 of the Constitution.
– The Minister has made the definite statement that the payment for properties transferred by virtue of the Constitution will be determined under this Bill. I hesitate to dogmatize in a matter involving a question of law, but it seems to me that as, under the Constitution, the properties were transferred absolutely, they cannot be dealt with by a Bill which relates only to properties acquired in the manner set out in the Bill. There is a difference between properties transferred, under the Constitution, and those which it isintended to acquire under this Bill. But. there is one matter to which Senator Keating made no reference. I allude to thequestion of severance, upon which Senator Symon dwelt at some length. It seemsto me that the argument is unanswerablethat where an estate fs injured by severanceit should, if it belong to a State, be placed in the same position as the estate of a private individual. Throughout this Bill we group States and private individuals together. We make no difference between them. If we run a road) through property belonging to a State, I see no reason why the State should not receive the same compensation as a private individual would get. I cannot understand the distinction. There is no reason for it. I point to the very ominous silence of the Minister regarding Senator Symon’s criticism on this point. I trust that the Minister will see the force of it. If he is not able to agree to the elimination of the whole sub-clause, which I think ought to go out, I hope he will agree that the exemption as to severance should be omitted. t
Amendment (by Senator Sir Josiah Symon) proposed -
That the words “ The State shall not be entitled to compensation in respect of the loss of any rights of dominion, taxation, or revenue, ‘r lines 11 to 13, be left out.
.. - I agree with Senator Millen that reasons should be shown why a State which has suffered loss through severence, should not be compensated, but there is sufficient reason why the words it is’ proposed to omit should be retained. We know, as a matter of fact, that the proper principle is adopted’ by the States of not taxing State property. In some instances, a State preserves fromtaxation the property of other public bodies. It also preserves State properties from municipal taxation. The principal is a sound one : that there should be no powerto tax the Crown.
– That is aconstitutional question.
– I admit that it is, but tHe principle is sound.
– We do tax the Crownthrough the Customs.
– I believe we doin that case. It is, however, absurd totax the Crown, because the taxes go to the
Crown. My experience of State Governments shows me that the principle of not taxing public property is a good one.
– I point out, in answer to Senator Millen, that I have referred to the already complicated problem of adjusting the compensation between the Commonwealth and the States for transferred properties. I think that that, in itself, is a sufficient reason for my opposition to the amendment. I dealt sufficiently with the taxing rights, revenue rights, and dominion rights of the States. If Senator Millen will turn to clause 65, he will find that it- provides that -
Any land which, before the commencement of this Act, has been acquired by the Commonwealth from any State or person, or has by virtue of section 85 of the Constitution become vested in the Commonwealth, shall, for the purposes of this Act, be deemed to have been acquired under this Act and to be vested in the Commonwealth as if acquired under this Act.
We have a corresponding provision in the existing Act, section 47. Under those provisions, compensation applies in the case of those transferred properties. We have power to legislate that compensation shall be paid to a State by virtue of section 85 of the Constitution, paragraph 3 of which says that -
The Commonwealth shall compensate the State for the value of any properly passing to the Commonwealth under this section ;’ if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament.
It will be obvious that the bulk of the land which we get from a State being in connexion with the transferred properties, we should not allow, any compensation for the loss of taxation rights, revenue rights, or dominion rights ; and as to severance, I have indicated that we have adopted the proposed form from the existing Act. Some very solid reason shoul’d be advanced for departing from the existing law in this respect.
Sitting suspended from 1 to 2 p.m.
Senator Sir JOSIAH SYMON (South Australia) [2.0]. - The Minister has pointed out that this provision, is in the existing Act; but honorable senators will recollect that the Act was passed without, in some respects, the consideration which it deserved. I must take some blame for not giving the Act as much attention as. perhaps, I ought, when it came before us as a mere machinery measure. In the second place, the Minister has referred to clause 65, which, however, does not touch the question before us in any way. I quite agree with a good deal of what the Minister has said as to the constitutional position in regard to the acquisition of land. But I point out that this sub-clause is intended to declare that the States shall not be entitled to compensation for the loss of any rights of “ dominion, taxation, or revenue.” I think it a mistake to have that provision, because it assumes that a State may, under the circumstances, lose the right of taxation in respect of Commonwealth property. That is a question for the Court to determine; and, no doubt, there have been decisions in regard to municipal rights, and so forth. I do not think we are justified in assuming that a State may lose its right of taxation, and in providing that there shall be no compensation for the loss. It is difficult to decide whether a State would lose the right, but’, if so, we ought npt to take away the right to claim compensation for the loss of a portion of revenue, which is an asset, small or great, of the State. So far as regards the introduction of the word “ dominion, “ I do not think there should be any compensation in that respect. I am convinced by what the Minister has said in this connexion, but I feel that we ought’ to retain -the provision in regard to taxation or revenue. “ Dominion” could not be assessed for damages, except in regard to land taken for the Federal Capital, whereas “taxation or revenue,” being money, is susceptible of assessment in some shape or other. With the permission of the Committee, I shall withdraw the amendment, with the view of substituting another embracing simply taxation or revenue.
Amendment, by leave, withdrawn-.
Amendment (by Senator Sir Josiah Symon) proposed -
That the words “ taxation or revenue,” line r3, be left out.
– I was hoping for the moment that Senator Symon would permit the words “ taxation, or revenue “ to remain, because, in my opinion,’ they are the crux of the whole question. There may be seme decisions in regard to the power of a municipal authority to tax or not to tax, and to draw revenues from Commonwealth-occupied or Commonwealthowned property; but these decisions hardly touch the difficulty we are trying to overcome by the clause. The question has reference to properties of the States that have been transferred. Those properties, although they were within the taxable powers of the States have, as a matter of fact and practice, never been taxed. When they have been transferred to the Commonwealth, it would be hardly fair for the States to claim in respect of any loss of a taxable area, so to speak, seeing that they are transferred, not to a foreign body, but to abody of which the States themselves may be said to be an integral part. No doubt, the property was taxable, but, in actual fact and practice, it never was taxed. The other decisions to which Senator Symon referred have more point with regard to the subsequent taxation of this property, either by a State or by any delegated authority.
– That is what takes away the taxable right.
– The fact that it is the property of the Commonwealth takes away the taxable right, but at the time it was handed over to the Commonwealth, and prior to that, it’ was no doubt taxable by the State, although, as I say, it never was taxed. If there are any words in the clause that should be preserved, they are “taxation, or revenue.” I hope the honorable senator will not press the amendment, but will recognise that the great bulk of these properties are transferred properties, and that it would considerably complicate the problem, to the advantage of nobody and to the disadvantage of all parties, if we allowed questions of the taxable value and the revenue-returning value of property so transferred, to enter as elements into consideration in adjusting the compensation to be paid to a State.
– Would the adoption of the amendment necessarily bring about those complications?
– I am afraid, it would, because, one particular State, for instance, might raise the question. It is not to the interests of either the States or the Commonwealth that these should be elements, in the determination of compensation. Is it not better to set the whole question beyond the possibility of any doubt? If we were proposing to take away from a State, or the people of a State, anything to which they were accustomed, we might consider the advisableness of leaving out the words ; but the absence of the provision, especially in view of the fact that it has been the law for five or six years, might lead to the belief in the minds of some persons that it was intended to consider on its merits any claim that might be made by a State for compensation in regard to the two items, or either of them. After all, this would be to a large extent, a matter of bookkeeping, and we should be only opening the door to the complication of the whole question of compensating the States for the properties transferred. I venture to say that seven-eighths would be a low estimate to give as the proportion of the transferred properties compared with all the properties that would now be affected by this clause. I venture tosay, further, that none of the transferred properties in any State have ever been subject to taxation. At the same time, each State had the opportunity, if it chose, to tax its own property and apportion the revenue in a bookkeeping way.
– It would be merely a cross entry.
– In view of these facts, are we going to open the door to doubt ?
– Will the Minister consent to eliminate that portion of sub-clause 3 which relates to severance of land?
– I am prepared to do that.
– Then I ask permission to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator Sir Josiah Symon) agreed to-
That the words, “ or m respect of ‘the severance of the land acquired from any other land of the State, or in respect of any injury toany other land of the State,” lines 13 to 16, be left out.
Clause, as amended, agreed to.
. In determining the compensation under this Act, regard shall be had (subject to this Act) to the following matters : -
The enhancement in value shall be set off against the amount of the value and damage specified in paragraphs a and b of sub-section 1 of this section.
– I shall anticipate one argument that the Minister may address to the Committee in reply to the objection I am about to take to paragraph c of sub-clause 1, by admitting that it is a reproduction of the corresponding section in the existing Act. It does not appear to me that paragraph c will be at all fair in its incidence. I do not propose to refer to the equity or otherwise of the betterment principle, but merely to point out that that principle differs very materially from the proposal set out in the clause. Under the betterment principle, when a public work is carried out, it is followed by a charge on all the lands benefited ; whereas paragraph c provides that the one individual, to be subject to the betterment tax, shall be the individual from whom the land is resumed. All his neighbours may share the benefit with him - they may even obtain the greater portion of the benefit - and yet they are not to be called on to contribute one iota. Under this clause the Commonwealth, might resume property and never have to pay the owner a single penny. An owner might have several parcels of land in the locality of a proposed public work, and if the Commonwealth resumed one parcel, and determined that, under the operation of the clause, the benefit to the remaining parcels equalled the value of the property resumed, the owner might get nothing. All round, however, a multiplicity of other owners might reap even a greater benefit, and yet would not be called upon to contribute. I appeal to those honorable senators who believe in the betterment principle. They must recognise the inequality of this proposal. If Ave desire the betterment principle to be attached to public works, let us so provide, and see that all who benefit are called upon to contribute. I recognise that this provision is in the existing Act; but the very fact that the Minister has introduced the Bill is an admission that the present law is not perfect in many particulars. Amongst its defects is the one I have pointed out, and, if honorable senators agree with me, it is our dutv to remedy such a defect when an opportunity presents itself. I ask the Minister not to allow the fact that this provision is part of the present law to unduly weigh with him, but to consider whether there is not some force in my argument, and whether it would not be possible to draft an amendment more equitable in its incidence. If it is thought desirable to adopt the betterment principle, let us do so, but, otherwise, let us agree to the elimination of paragraph c.
– Curiously enough, when the Property for Public Purposes Acquisition: Bill was before the Senate, I took up the same stand as Senator Millen has taken to-day, but I found only two supporters. I, therefore, hope that the honorable senator will press his amendment, in which case we shall have more than three honorable senators supporting a proposal to do what I think is fair as between man and man.
– The alternative suggested! by Senator Millen is, I think, surrounded with a certain amount of difficulty. In estimating the compensation to be paid we propose to consider the value of the land acquired for public purposes, the damage sustained by the owner as the result of the severance of his land, and, thirdly, the enhancement in value of the other land held by ihe same proprietor, which is, of course, set against the other considerations in determining the amount of compensation to be paid. That is the principle adopted not only in the existing Act, but also, I think, io some of the States Acts. If my recollection serves me .rightly, it is the principle adopted in Tasmania, in connexion with the resumption of land, if not for general public purposes at least for the construction of railways. Senator Millen points out that, although the balance of the land retained bv an individual from whom a portion of his land is acquired under this Bill may be enhanced in value by the construction of the public work, the value of the lands in the vicinity in the possession of other persons from whom no land has, been acquired! bv the Commonwealth may also be enhanced in value in the same way. The honorable senator suggests that the question of betterment .shall be determined, not only in relation to the particular individua.1. a portion of whose land is acquired, but in relation also to every owner of land whose property is enhanced in value bv the construction of the public work. I doubt very much whether we could do what the honorable senator proposes in this Bill. We have power under the Constitution to make laws with respect to -
The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.
It might be open to question that what the honorable senator suggests would be just terms. It isverydoubtful whether it is within our power in such a measure as this to impose any conditionson persons other than those from whom we acquire property. Tor instance, A, B, C, and D are adjoining owners, of land, and for the purpose of the illustration I assume that the value of the land owned by each is£1,000. Under this Bill we take a portion of A’s land, valued at£250, and the improvement in value of the rest of his land due to the construction of the public work is estimated at£150.In estimating the amount of compensation we shall pay him for the land we take we must take into consideration the extent to which the land he retains is enhanced in value by the construction of the public work, and we deduct that from the value of the land taken, to which, of course, there is added the value of the damage occasionedby the severance of the land. No land is taken from B, C, or D, although the construction of the public work enhances the value of their property. Senator Millen suggests that we should not deduct from the compensation paid to A any amount in respect of the enhancement in value of the remainder of his property, since we do not propose to do the same to meet the enhancement in value of the properties held by adjacent land-holders. I do not know that we should hesitate in the matter.It might be that, in the case I have suggested, under this measure, A- will be placed in a less fortunate position than his neighbours, but are we to say that we shall not give ourselves credit in the individual transaction with which we have the power to deal for the additional value which the construction of the public work will give to the balance of the land held by the person from whom we take the land? I doubt very much whether we have the power to go beyond that individual and impose conditions on third or fourth parties-
– Not under our powers of taxation?
– We might do so under our powers of taxation, but I am dealing with the powers we propose to exercise under this Bill. We are here proposing the acquisition of land from States and persons on just terms, and when we are dealing, with an individual owner the terms must, I think,apply to that owner alone. I think we cannot make the terms applicable to third parties.
– That is a State matter.
– Or it might be a matter of general Federal legislation with regard to direct taxation. I do not know that Senator Millen would favour legislation of that character. At present we are concerned merely with the purposes of this Bill. I say that we should not go by this particular clause, and wait until some systematic legislation is passed in regard to betterment generally, but that in this measure we should apply the betterment principle in every transaction with individuals where the effect of a public work is to enhance the value of land retained by them. I think that is a fair and reasonable principle, and it has certainly been acted upon in the past by some of the States in connexion with acquisition of land for railway purposes.
– In New South Wales, in the case of the resumptions in connexion with Martinplace, the Government made all the adjoining owners of land pay something in respect of the enhancement in value of their property. In the case to which the Minister has referred the proposal in this Bill is to make A contribute something in that respect, and to take nothing from B, C, and D.
– How can we deal with them ?
– I do not know, and in the circumstances I think that the provision had better be left out. I am sorry tosay that I have had a somewhat unfortunate experience in this connexion. We weregiven what was called compensation for the resumption of a certain area in Brisbane, although, as a matter of fact, we lost£3,000 by the transaction. In the case to which Senator Keating has referred, how is it possible to say that A’s land will be benefited to the extent of . £250 by the construction of the public work?
– That is a matter of valuation.
– It is a most difficult thing to decide. I think that it would be well to omit the provision.
– I will put this case to Senator Walker : Suppose that in resuming land we take a strip along the border of a man’s property which might be worth ; £100, whilst the block from which it is taken might be worth some thousands of pounds. It is clear that the actual improvement in value of the balance of the property due to the construction of the public work might amount to considerably more than the actual value of the strip of land taken. What are we to do in such a case as that? Are we to pay the owner the value of the strip taken, without taking into consideration the value added to the rest of his property?
– The Minister naturally takes an extreme case to suit his argument.
– Extreme cases generally afford the best illustration pf the effect of a provision.
– Quite so, and let me put another case to the Minister. The owner of a block of land worth’ ^1,000 is, say, one of a group of owners of land in the same locality, each of whom owns- a block of the same value. The Commonwealth resumes one-half his land and for that should pay him ^500. The effect of the public work carried out is to double the value of all the lands within a certain radius of it. Under this provision, in such a case the Commonwealth would take half of the first man’s land and would pay him nothing for it, whilst it would make the adjoining owners a present of ^1,000 each.
– The honorable senator is a land taxer, and we shall soon have him on our side.
– If a land taxer is one who desires that the Commonwealth should act fairly to those from whom it acquires land, I am a land taxer. Where the Commonwealth steps in. to do anything for the commonweal, it should not throw upon any one individual the sole burden of the operation. It seems to me that it would be far better to omit this provision, and if the Ministry think that the betterment principle is of so much value, they should introduce a separate Bill as they have power to do under the Constitution, to provide that wherever a public work is constructed the betterment principle shall apply to all property, the value of which is enhanced by the construction of the public work, is propose, as is done here, to tax one man and exempt others who are equally benefited by the construction of the public work, is unjust, and is entirely opposed to the principles on which we are supposed to legislate.
Senator Sir JOSIAH SYMON (South Australia) [2.28]. - With Senator Keating, I do not see how it would be possible under this Bill to take from owners of land, none of whose land is acquired, the enhancement of value which the carrying out of a public work would give them. A special mode of taxation might be devised which would enable that to be done,, if we were introducing a complete system to give effect to the betterment principle, with which I agree. Where land isimproved in value by the construction of a public work, that increase in value should not go entirely to the owners, but: the whole or some portion of it might very well go to the State. The objection tothis provision, however, is that it introduces, a lopsided kind of betterment under which, where the half of a man’s land was taken,, and by the construction of the public work, the balance was improved in value to theextent of the value of the half, he would” be compelled to make a present to the Commonwealth of the land, whilst tenadjacent owners of land, who might have their properties doubled in value, would” escape. That, on the face of it, is unjust. We should not do an injustice by attempting; to introduce a partial betterment system by which one land-owner would have to pav something whilst his neighbourswere benefited at his expense, without contributing anything to the Commonwealth.. A similar provision is contained in the existing Act, but, like many other provisions, it was not sufficiently considered, and it seems to me that it is’ not desirable that *it should be re-enacted in this Bill.
– The balance of the land held bv the man from whom land is taken, might be enhanced in value to a verv much greater extent than any land held by adjacent owners.
– That might happen, but it might also happen that the construction of the public workmight greatly enhance the value of property belonging to ten different owners of land” in the locality.
– The land taken might be enhanced in value fivefold, and’ the other lands not be improved at all.
– It might. On the other hand, it might happen that the land not taken had had itsvalue enhanced fivefold. Yet it is proposed to compel the man whose land has- been taken to present it to the Commonwealth for the benefit of neighbouring owners. I am entirely in favour of the betterment principle, and I am glad that it is being introduced into State laws with regard to State undertakings. But I think it is a bad thing to attempt to introduce it in a one-sided way. It ought to be made equal in its application all round if that can be done. It cannot, however, be done in this Bill. Therefore, I think it is unfair to the man whose land has been taken that he alone should be singled out as the person who is to make a compulsory present to the Commonwealth, simply because his land has been enhanced in value. Then let us take the other side. Suppose that land has been depreciated in value, why should not that be considered ?
– That case would be met bv paragraph b.
– No. Suppose, for instance, that a battery were erected on Jones’ land, I should say that if his house were within 100 yard’s of the battery, it would mean a very serious depreciation in the value of his land. But it is not proposed to take that into consideration. What I suggest is that it would be much better to eliminate paragraph c, but if not, to insert the words “or depreciation” after the word “enhancement.”
– Depreciation would occur very rarely.
– Why not? _ _
– If would occur in only a few cases.
– I know cases where it has occurred.
– T think that Senator Fraser is mistaken. In the case of railways it would verv seldom occur, but that is not what the Commonwealth has to deal with. It has to establish batteries for defence purposes, and that would mean a very serious depreciation in the value of a man’s land. I am quite sure that my honorable friend would not like a battery or rifle range to be placed within a few hundred yards of his front door. The existing law is limited to the enhancement in value o’f other land adjoining the land taken or severed therefrom. That is a right principle. But it would be a monstrous thing to deduct the enhancement in value of other land which a man might have in a place half-a-mile away. Suppose, for instance, that a railway station were put near a man’s land in one place. That land might be enhanced in value; but it would be very unfair to make an assessment of the improvement in the value of . his other land, situated halfamile away, in consequence of the erection of that railway station. I admit that it is a very difficult and complex question, and I think it is a pity that the provision in the existing Acf should be altered. I did not hear what Senator Millen said, but Tor these reasons I am against paragraph c altogether, because of its fragmentary character. If it is to be retained, I shall propose the insertion after the word “ enhancement.” of the words “or depreciation,” and the insertion after the word “ land “ of the words contained in the present Act, namely, “adjoining the land taken or severed therefrom.” If it be part of the same land, then it might be only a fair thing that the enhancement should be taken. If the Committee are agreed that one man is to be singled out to be a sort of scapegoat, and to the advantage it might be of adjacent owners, at an,r rate, it should only relate, as the Act limits it. to land adjoining the land taken or severed therefrom. I move -
That the words “ or depreciation “ be inserted after the word “ enhancement,” line 9.
– I do not mind the proposed amendments, but I should not like to see the provision struck out. It does seem to me to be a little wide to say other lands.
– I am rather surprised that Senator Symon should1 move an amendment of this character, after giving us such excellent reasons why paragraph c should be omitted’. The whole trend of his argument was in favour of its. elimination.
– But the Minister thinks that that would be undesirable. I think it ought to be struck out.
– Cannot we test the point? I think that paragraph c and sub-clause 2 ought to be omitted.
– In paragraph b we are giving damage for severance, and we ought to take into consideration any improvement effected to the property.
– The arguments have been so forcibly and- clearly stated that surely it is superfluous for me to reiterate them. I think that the Minister must see the force of the position which has been stated by Senators Millen, Walker, and Symon. What is the position? If the Commonwealthacquire a certain area of land worth, say, £50, and the damage causedby the severance of that portion from adjoining lands be estimated at £10, theduty of the Commonwealth should be to pay the owner£60. Then if the land of that man and of other persons in the neighbourhood has been increased in value by the expenditure of public money, a betterment tax ought to be imposed which would apply to each owner whose land had been increased in valuethereby. If, however, it were done in the way proposedby the Bill, it wouldsimply penalize one man and allow a number of men to escape scot free. Let us take the instance given by Senator Millen of a man who had an area ofland worth£1000. If the Government took half the area, valued at . £500, and the value of the other half were increased to , £1,000, the Commonwealth would set that increased value against the£500 which it ought to pay the owner for the area resumed, and give him nothing. Suppose, for instance, that originally his land comprised1,000 . acres. At the end of the transaction he would have 500 acres worth £1,000. Take the case of his next-door neighbour, who had an area of land worth £1,000. His value would be increased to £2,000, and yet he would pay nothing. Is there anything fair or reasonable in that? I would ask the Minister to eliminate paragraph c and sub-clause. 2.
– And paragraph b?
– No, because I think that the Government ought to pay for damage causedby severance. If lands be increased in value by the expenditure of public money, as they usually are, then let the Commonwealth scoop it up by means of a land values tax, which would apply equally to all.
– If Senator Stewart wishes to take a test vote as to the omission of paragraph c, perhaps Senator Symon will withdraw his amendment.
– It cannot affect Senator Stewart’s contention, first to make my two amendments, and then to put the clause.
– I would suggest to Senator Symon that the bettermethod would be to take astest division on the question of omitting the words the enhancement.”
– Very well. I ask leave to withdraw my amendment temporarily.
Amendment, by leave, withdrawn.
– I am not sure that that is the proper method of procedure.
– I would ask the Chairman to first put sub-clause 1 to the end of paragraph b. and then to put paragraph cby itself.
– I think that the course which was suggested from the Chair would be more convenient. The question can be tested on a proposal to omit the words “ the enhancement,” but if the subclause as a whole were put, and it were decided that it should stand, it would be difficult to make an amendment. I would suggest that Senator Stewart should move the omission of the words “ the enhancement,” on the understanding that if that amendment be carried, the whole paragraph shall go out, but that, if it be not carried, the words “ the enhancement “ shall stand, and Senator Symon can then move his amendment.
Amendment (by Senator Stewart) proposed -
That the words “ the enhancement,” line 9, be left out.
– I trust that the Government will not accept the amendment. I think we ought to look at this question from a practical point of view. What is the most likely kind of case to which, this clause would be applied? I suppose that more land will be resumed by the Post and Telegraph Department than by any other Department under the Commonwealth. Say that the Government proposes to “take an area in a country town for the purpose of building a post-office. Those who have had any experience of country towns know that the determination of the site of a post-office determines the centre of the town, and therefore affects the value of land in the vicinity. The farmers come for their letters to the post-office, and’ the store which is nearest becomes the principal store in the town. In fact, the whole business of the place centres around the post-office. What does the determination of the Government mean? Suppose that there is a block of land half-an-acre in extent, and that the Government say to the owner, “We want a quarter of an acre of your land for a post-office site.” Take the value of the land before the determination is made as £100. The Government, we will assume, say ‘to the owner, “ We will give you £50 for a quarter of an acre, and we estimate that the damage sustained by severance will be £10” That is to say, the Government give credit to the owner for £60 for half his block. But there is a contra account in the increased value given to the quarter of an acre retained by the owner. We will assume that that added value amounts to ,£10. The owner1 of the land has been compensated to the extent of £50, and is still in the possession of a block of land worth. £60. If the Government take the whole block there is no factor to be considered except the value of the land taken. The owner gets £100 in money, and the transaction is at an end. He has no cause to complain. Under this Bill, if half his property is taken, he will be treated equitably and fairly, allowance being made for the damage caused by severance. Senator Stewart took a most unlikely case. He assumed that the Government would! take half a man’s farm. What would they want half a farm for? I admit that to carry out the principle ‘ to the extreme of justice, something should be taken from the owners of property in the district on account of the added value given to their land by the building of the post-office. I agree with that principle because I advocate a tax on land values. But we have to deal with this matter in a practical way ; and those whom Senator Stewart proposes to assist in striking out this clause would be the last to assist him in getting back from the land-owners the increased value given to them by the. erection of public buildings.
– Does the honorable senator determine his votes according; to the men he votes with?
– We are dealing with a matter of practical politics, and we know that this Parliament would not sanc- tion a general betterment tax. It is impossible to put such a provision into this Bill.
– Does that justify singling out one man for special taxation and exempting the others?
– We are not singling out an individual for special taxation. We are doing no injury whatever to the man whose land is taken. He is paid for his property. The example given by Senator Stewart has only to be looked at for its improbability to be realized. He assumes the case of a farm worth ^1,000, the Government taking one half and paying, ,£500, and the other half being increased in value to the extent of ^500. But can we imagine any public work that is likely to be carried out in a country district having the effect of increasing the value of land to such an enormous extent. There is no public work which the Commonwealth is likely to undertake which would increase the value of land in the district to the equivalent of the value of the land taken for the purposes of the work. The effect of Senator Stewart’s proposal is that not only will he not achieve what he has in view - the carrying out of the betterment principle - but he will also strike out the measure of justice which this proposal contains. We have not only to consider justice to the land-owner, but also justice to the community ; and what right has Senator Stewart to say that the individual whose land is taken shall reap the value given by. the community in erecting the public work ? The position of the land-owner in the illustration which I gave will be this : He has, in the first instance, a block of land worth o£i 00. He is paid £50 for one-half of it, .£10 for severance, and the remaining half goes up in value £10. The very fact df the erection of the Commonwealth public work gives him .£120, whereas formerly he had only £100.
– Well, what about the neighbouring land-owners ?
– We cannot get at the neighbouring land-owners by means of this Bill. But because Senator Stewart cannot get at them, he would enable a person, from whom land is purchased, to reap all the advantage from the community. I think that Senator Symon’s amendments are necessary, because, if it is just to take into account the enhancement in value, it is ako just to take into account the depreciation in value of any property.
.- I cannot conceive of a case where an increase in the value of broad acres would be occasioned by the erection of a Commonwealth public building. It is only railways which enhance the value of broad acres. They cannot be affected by building a post-office in a country town. Such a work would improve township sites, but broad acres would be unaffected. I have known broad acres to be increased in value threefold by a railway. Of course, there is a selfish propensity on the part of people whose land is increased in value by railway construction. If a railway goes to a township, and stops there, the local residents will want their town to be a terminus for all time. The question is this: Say that the man whose land is taken has a township block. Why should the Commonwealth give that man more than he is entitled to? He is not made any poorer by the Commonwealth taking it, and he is not entitled to be made rich at public expense. Because we cannot get at B, C, and D, that is no reason why we should put a lump of sugar into the mouth of A. I agree with Senator Symon, and I shall not support Senator Stewart’s amendment.
.- I deem it to be my duty to oppose Senator Stewart’s amendment. I am in accord with the principle of the Bill. I recollect that some thirty years ago in Tasmania we first had to do with the betterment system in connexion with our main line of railway between Hobart and Launceston. If it is desired to carry it further than it has yet been carried in the matter of railway construction, that can only be done byadopting the system of not building a railway until the people of the locality affected form themselves into a trust, and contribute in proportion to the increase in value of their land. But we cannot apply that principle in connexion with the erection of postoffices and other Federal buildings. It may become important if we ever undertake the construction of a railway to Western Australia. Then we shall probably have to say, “ If we are going to build this line, the land must be given to us free “ ; and the Western Australian Government will have to pass an Act applying the betterment system. But we cannot apply that principle now. I have been struck with the verv terse way in which Senator Fraser has dealt with the matter. Because we cannot do ample justice to half-a-dozen people, is that any reason why we, ns trustees for the public, should pay more for land than property-owners are entitled to? The system proposed by the Bill is just as between the land-owner and the taxpayer. If we take a portion of a man’s property, and benefit him almost to the extent of the value of the land taken, he is not entitled to anything more than the fair price.
– I intend! to press my amendment because I am actuated by what I conceive to be its justice.
– It is impossible.
– I can see nothing impossible about it. Of course, Senator Fraser does not want the betterment principle to be adopted. I do.
– I do not in the* least object to betterment.
– I want to have a betterment provision that will not single out special individuals* for taxation, and permit a large number of others to escape scot free. .Take Senator Pearce’s example. Say that there is a block of land an acre in extent in a township. Say that it is owned by four different individuals, each holding a quarter of an acre. The Commonwealth comes along and tells one of these holders that he must give up half of his land for public purposes? Let us say that the quarter-acre is worth. .£20, that the .Commonwealth resumes ^10 worth of it, and that the remaining portion of the allotment is, by the building of the post-office or other buildings, increased in value by 50 per cent. The half of the allotment resumed is, as I say, worth ,£10, and the half that is left over is increased in value to .£15; and, thereupon, the Commonwealth says, “ We have increased the value of your land by .£5, and, therefore, we shall pay you only ,£5.”’ The owner of the land finds that, instead of possessing, a quarter of an acre worth .£20, he has an eighth of an acre worth ,£15 and £10 in his pocket.
– That is ,£5 more than the man would have got, or ought to have got, if the whole of his land had been taken.
– What is the position of the other owners of , quarter-acre blocks in the neighbouhood ?
– We cannot deal with them under this clause.
– I do not say that we can deal with them, but surely we will not single out an individual simply because he is unfortunate enough to be the owner of the allotment which the Commonwealth desires? Why should he be penalized? All I ask is that he should be placed on exactly the same level as the other owners. What I now desire is to show the position of those other owners. Each of the holdings has, by the erection of a public building, been increased in value by 50 per cent., so that each owner finds himself in the possession of land worth ^30, while the man on whose land the building has been erected has only an eighth of an acre, worth £15, and £10 in his pocket. If I had to choose whether a post-office should be built on my land or the Land of the other fellow, I should say that bv all means it should be on the other fellow’s land. What I claim is that each person whose land is increased in value should pay in proportion to that increase. There ought to be no differentiation between the man whose land is taken and the man whose land is not taken. The Government ought to pay the market value for the land, and tax the owner on the increased value; that is the only just and moral way.
– How does the honorable senator propose to tax the owner?
– The honorable senator should not ask.
– But I am asking because taxation must be uniform in its incidence.
– I thought the. honorable senator knew all about the matter. In mv opinion, we should impose a land tax which would scoop up all the community-created increment.
– For all over the Commonwealth, yes ; but we are not dealing with a measure of that kind.
– Why penalize one man ?
– He is not penalized.
– The honorable senator has not listened to the argument, or, if he has listened, he has not understood. I am governed in this matter only by my sense of justice. I do not desire to penalize any man in the way proposed by the Bill ; and so long as I occupy a seat in this Chamber I shall never be a consenting party to legislation of the kind. We hear the capitalistic party accusing the Labour Party of confiscation. The proposal now before us means direct confiscation, which cannot be defended by any law, human or divine, that I know of, except the law of highway robbery.
– The honorable senator is in good company with Senator Fraser.
– I think that Senator Fraser sees further through this business than do some other honorable sena tors. Senator Fraser desires to pounce on one individual, so that he may be offered up as a sacrifice for the others.
– Get at the others if we can j but we cannot.
– I do not wish any one to escape. If land is increased in value by public expenditure, all who are benefited ought to pay, but one man ought not to be called upon to pay double. Let me go further with my argument. Suppose the Stale Government imposed a betterment tax, the man whose land had been taken, and who had already been penalized by the Commonwealth Government, would be called upon to pay to the State as well as. to the Commonwealth, while the other owners would pay only to the State. The poor wretch who had had the misfortune to own the particular corner desired’ by the Commonwealth Government would pay double.
– It is not always a misfortune to be the owner of land which is required bv the Government.
– Under the laws as we have known them, that has never been a misfortune 5 but it would be a serious1 misfortune under a law of this kind. If honorable senators’ desire to act’ fairly and squarely as between man and man, thev will not consent to an arrangement of the character proposed. I am sure that Senator de Largie has no other idea than to do the “ square thing.” If land is increased in value by public expenditure, a betterment tax could easily be applied with equal justice all round. I ask the Committee to support my amendment.
– It has afforded me great pleasure to hear Senator Stewart speak as he has done. The honorable senator has certainly exhibited a desire to be fair all round. Senator Fraser told us that he had never known a railway run through a property which it did not improve. But I can give as an, illustration a case in which the result was very different.
– I was speaking of broad acres.
– I am speaking, of city property, consisting of 18 acres, known as Teneriffe, in Fortitude Valley, Brisbane. That property was valued bv Mr. John Cameron at .£30.000, and on the strength of that valuation £15.000 was advanced on mortgage. After a time, the Queensland Government desired to construct a railway to Bolimba, and the line was constructed through this property, leaving such a narrow strip betweenthe railway and the river that the river frontage had to be sold for a song, while the balance of the estate, which was valued at ?30,000, has, up to the present, not realized ?8,000. All that the Queensland Government had the impudence to offer as compensation for severance was ?600 ; and on resorting to arbitration the owners received only ?1,200.
– A bad arbitrator !
– I shall support the amendment of Senator Stewart, and if that is not carried, I shall support the printed of Senator Symon.
– When, in the course of debate, we hear certain honorable senators address each other as “my honorable friend,” we do not pay much, attention to the phrase, because we regard itonly as common courtesy. But when honorable senators of the school ofthought towhich Senator Walker and Senator Fraser belong, so address Senator Stewart, we cannot help feeling that there is a great deal of significance in the term.
– Senator Stewart has supported me before.
– To be addressed in such away ought to be a warning to Senator Stewart.
– I have called Senator de Largie “mv honorable friend “ before now.
– I dare say, when I have agreed with the honorable senator. I am inclined, to think that Senator Stewart has been solong, at his farm, near Rockhampton, that he has come to regard himself as a land-owner, and he fancies that theremay be something in the Bill which will adversely affect him. The honorable senator’s argument when boiled down means that if the Government take from a man half his land, they should not consider the enhancement in -valueof the remaining half, because the value of the land of other people, who cannot be reached1, has been increased in greater ratio. In other words, the local land-owners should get the whole of the benefit of the public work.
– That is the sum and substance of the honorable senator’s argument. When framing laws of this kind, all we can do is to act as fairly as possible; and if other people benefit to a greater extent than do the individuals with whom the Government are doing business, we cannot help it.
Question - That the words “the enhancement “ proposed to be left out be left out - put. The Committee divided.
Majority … … 14
Question so resolved in the negative.
Amendments (by Senator Sir Josiah Symon) agreed to -
That after the word “ enhancement,” line 9, the words “ or depreciation “ be inserted.
That after the word “ land,” line 10, the words “ adjoiningthe land taken or severed therefrom “ be inserted.
That after the word “enhancement,” line 14, the words “or depreciation” be inserted.
That after the word “ against,” line 15, the words “or added to” be inserted.
Clause, as amended, agreed to.
Motion (by Senator Playford) proposed -
That the Senate do now adjourn.
Senator Sir JOSIAH SYMON (South Australia) [3.20]. - It would be a convenience to honorable senators if the Minister of Defence would indicate, so far as he can, the order of business for Wednesday next.
– We propose to submit first on Wednesday a motion for the ratification of the mail contract,Because it is important that that matter should be decided at the earliest possible date. We shall then continue the consideration in Committee of the Eminent Domain Bill, because the attention of honorable senators has been directed to it, and I think it is better that it should be dealt with before other business is taker? up.
– So far notice has not been given of any motion with respect to the mail contract.
– I do not suppose there would be much difficulty about that, because everybody recognises that it is pressing.
– The Minister in charge of that business might, by leave, give notice now.
– I ask the leave of the Senate to give notice that on Wednesday next I shall move_a motion for the ratification by the Senate of a contract entered into by the Commonwealth Government in connexion with the mail service to Europe. _ I am not in a position, at the moment, to give the exact terms of the notice, but they will be in conformity with the terms of the resolution on the same subject adopted by the House of Representatives.
– The Minister, under standing order 104, may give notice in general terms ‘if he hands in the exact words of the motion twenty-four hours before the day for which the notice is given.
Leave granted ; notice given.
Question resolved in the affirmative.
Senate adjourned at 3.25 p.m.
Cite as: Australia, Senate, Debates, 27 July 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060727_senate_2_32/>.