Senate
11 October 1955

21st Parliament · 1st Session



The President (Senator the Hon. A. M. McMullin) took the chair at 3 p.m., and read prayers.

page 381

QUESTION

TELEPHONE SERVICES

Senator CRITCHLEY:
SOUTH AUSTRALIA

– Is the Minister representing the Postmaster-General aware that, because of shortages of cables and other materials, long delays are being encountered by applicants for telephone installations? Can he say whether the Postmaster-General’s Department has in operation, or in contemplation, any plan to overcome this situation in order that applications for telephone installations can be met in a reasonable time ?

Senator COOPER:
Minister for Repatriation · QUEENSLAND · CP

– I feel sure that the Postmaster-General’s Department is aware that there are shortages of certain materials used in tie installation of telephones, and I am equally sure that it has a considered policy for the carrying out of such wark. However, I shall be pleased to obtain detailed information from the Postmaster-General and to supply it to the honorable senator in due course.

page 381

AUSTRALIAN SHIPPING BOARD

Senator WRIGHT:
TASMANIA

– According to a newspaper report released in Tasmania, it is suggested that .a policy decision on the re-organization and management of the Australian Shipping Board has been made by the Government. I now ask the Minister for Shipping and Transport whether he has any announcement to make on the subject, and, if so, to what effect.

Senator PALTRIDGE:
Minister for Shipping and Transport · WESTERN AUSTRALIA · LP

– My attention has been drawn to a number of statements that have been made in connexion with the reconstitution of the Australian Shipping Board. However, as the matter is one of Government policy, I have no announcement to make. Should there be any change of policy, an announcement will be made at the appropriate time and in the appropriate manner.

page 381

QUESTION

TRANS-AUSTRALIAN RAILWAY

Senator SCOTT:
WESTERN AUSTRALIA

– Can the Minister for Shipping and Transport say whether any Western Australian wines are served as refreshments on the Trans-Australian Railway? If not, will he examine the possibilities of providing an assortment of wines from that State so that the travelling public can enjoy the distinctive palatable wines produced in Western Australia ?

Senator PALTRIDGE:
LP

– I understand that Western Australian wines are served on the trans-Australia train. My recollection is that- they were supplied to that train as a result of a question which I asked a former Minister in this Senate. I do not know how many lines or what range of Western Australian wines are served, but I shall be pleased to examine the matter, and if necessary, have the number and range of those wines increased.

page 381

QUESTION

COMMONWEALTH SHIPPING LINE

Senator FRASER:
WESTERN AUSTRALIA

– I ask the Minister for Shipping and Transport whether press reports are correct that the Government is considering the setting up of a shipping corporation in which the Government will own 51 per cent, of the shares and the. shipping combine will own 49 per cent. If this is so, does it mean that ultimately the Commonwealth shipping line will be disposed of?

Senator PALTRIDGE:
LP

– The press reports referred to by the honorable senator obviously have inspired his question. Both the question and the press reports deal with a matter of government policy, and I think ‘that the honorable senator is aware that that is a subject which cannot be discussed at -question time.

page 381

QUESTION

ESTATE DUTIES

Senator LAUGHT:
SOUTH AUSTRALIA

– I preface my question to the Minister representing the

Treasurer by saying that the Premier and Treasurer of South Australia has introduced an .amendment to the Succession Duties Act to the effect that relief is to be granted in cases where a person, who has succeeded to dutiable property on the death of another, dies within five years after his predecessor in title. I understand that relief of this nature has already been granted in England and New Zealand. Will the Minister take up the matter with the Acting Treasurer with a view to introducing an amendment nf the Estate Duty Assessment Act along the lines of the English, South Australian and “New Zealand legislation?

Senator SPOONER:
Minister for National Development · NEW SOUTH WALES · LP

– I shall be very glad to bring the honorable senator’s question to the notice of the Acting Treasurer.

page 382

QUESTION

AUSTRALIAN SHIPPING BOARD

Senator ARMSTRONG:
NEW SOUTH WALES

– Further to the question asked by Senator Wright, will the Minister for Shipping and Transport tell the Senate whether the statements in the press concerning changes in the control of the Commonwealth -shipping line are true or false? This does not concern policy.

Senator PALTRIDGE:
LP

– Any statement dealing with shipping or the reconstitution of the Australian Shipping Hoard is a. matter of policy, and will lie dealt with as such, but. not at question time.

page 382

QUESTION

DRIED FRUITS

Senator CRITCHLEY:

– I ask the Minister representing the Minister for Commerce and Agriculture whether he is in a position to inform the Senate of action taken by the Government to improve the lot of primary producers in the dried fruits industry, particularly with regard to the sale overseas of dried fruits.

Senator PALTRIDGE:
LP

Senator Critchley was good enough to intimate to me that he would ask this question mid I have obtained the following information from the Department of Commerce and Agriculture: -

Australian dried vine fruit of the 1955 season is meeting with a linn demand in overseas markets. Insofar as the United Kingdom is concerned, which is our largest export market, sales, with the exception of raisins, are at present being made at a higher price level than was the case at the corresponding period last year.

The relevant figures are as follows: -

Over half of the 1955 export surplus has already been sold. With regard to the publicity programme which is being undertaken in the United Kingdom, it is too early yet to measure the impact which this programme will have on the sales of Australian dried vine fruit. The campaign is just getting under way, but preliminary reports indicate that the launching of the campaign has achieved a gratifying response from United Kingdom traders and consumers. The first of the major drives on dried fruits will be conducted in the pre-Christmas trading period.

page 382

QUESTION

TASMANIAN SHIPPING SERVICES

Senator HENTY:
TASMANIA

– Can the Minister for Shipping and Transport assure the Tasmanians in the Senate if and when policy is announced concerning the Commonwealth line of ships, that the interests of Tasmania will be protected by this Government, as they always have been in the past?

Senator PALTRIDGE:
LP

– I think that I need only indicate to Senator Henty and other interested Tasmanian senators the fact that the best offices of this Government have been directed towards the maintenance of an adequate shipping service to Tasmania, and that, during the last few years the Tasmanian service has been conducted at an average loss of £250,000 per annum. The record of the Government in respect of Tasmanian shipping services, I suggest, indicates the importance which the Government attaches to this matter and which it will continue to attach to it in all future negotiations.

page 382

QUESTION

REGISTRATION OF MEDICAL PRACTITIONERS

Senator O’SULLIVAN:
Minister for Trade and Customs · QUEENSLAND · LP

– On the 20th September, Senator Fraser asked the following question : -

Some time ago I directed n question to the Minister for Trade and Customs, in connexion with the Commonwealth registration of medical practitioners. At that time. 1 asked the Minister whether the Government would consider bringing such a proposition be i ore a conference of Commonwealth and Slate Ministers, and 1 outlined to him the idea that I hud in mind. I now ask him whether the Government has given consideration to that matter and whether it has been placed before a conference of Commonwealth and State Ministers.

The Minister for Health has advised mc that he has not yet had an opportunity of placing the honorable senator’s suggestion before a conference of Commonwealth and State Ministers. The matter is one which is entirely within the jurisdiction of the State governments, and it is impossible for the Commonwealth to take any effective action without the concurrence of the States. The Minister for Health has had the matter noted for discussion with State Health Ministers when a suitable opportunity occurs

page 383

QUESTION

FORREST AERODROME

Senator LAUGHT:

– By way of explanation of a question which I now address to the Minister representing the Minister for Civil Aviation, I point out that, on .Saturday last, an east-bound Trans-Australia Airlines Vickers Viscount aircraft burst two of six tyres in making an emergency landing at Forrest, on the border of Western Australia and South Australia, due to the necessity to refuel on account of reports of doubtful weather over Adelaide. Will the Minister take up this matter with his colleague, the Minister for Civil Aviation,, with a view to ascertaining whether the runway facilities at Forrest are adequate for emergency landings of large new aircraft, such as the Vickers Viscount and the DC6. which nightly make the journey between Western Australia and South Australia ?

Senator PALTRIDGE:
LP

– I understand that, since the Viscount aircraft have been in service, they have landed at Forrest on a number of occasions without accident or suggestion of an accident. I do not know what caused the tyres to puncture on the occasion which the honorable senator has mentioned, but I shall refer the matter to my colleague and obtain a. reply for him.

page 383

QUESTION

INDUSTRIAL ARBITRATION

Senator WRIGHT:

– Far-reaching proposals for the re-organization of the Commonwealth Court of Conciliation and Arbitration are reported in the press to have emanated from the recent congress of the Australian Council of Trades Unions. Will the Minister representing the Minister for Labour and National Service state whether those proposals have been placed before the Government and, if so, will he have them placed before the Senate in due course?

Senator SPICER:
Attorney-General · VICTORIA · LP

– I shall inquire from the Minister for Labour’ and National Service whether the proposals have been placed before him by the representatives of the Australian Council of Trades Unions, and will direct his attention to the request of the honorable senator that any such proposals should be placed before the Senate.

page 383

QUESTION

REPATRIATION

Senator CRITCHLEY:

– Is the Minister for Repatriation aware of the practice followed in repatriation hospitals under which ex-servicemen, some of whom are not receiving pensions, are admitted for treatment but are moved to civilian hospitals at the end of thirteen weeks, irrespective of whether accommodation is still available in the repatriation hospitals ?

Senator COOPER:
CP

– The disability of a person admitted to a repatriation hospital must be caused or aggravated by war service, except in two categories. An ex-serviceman receiving 100 per cent, rate of pension for war service may receive medical attention and hospital treatment for disabilities other than those caused by war service to a certain degree. Chronic and similar illnesses are not accepted for such treatment, nor are certain other maladies. A pensioner can be admitted to a repatriation hospital for a period up to thirteen weeks. If the illness from which he is suffering is chronic or is likely to need hospital treatment for a lengthy period, the patient is then evacuated and a bed found for him in another hospital unless the transfer of the patient is likely to have any serious effect upon his health. In such a case, the patient is allowed to remain in the repatriation hospital for a longer period. This provision is not new. It has been in the relevant regulations for a number of years, and applies to disabilities other than those caused by war service.

page 384

QUESTION

STEEL

Senator ARNOLD:
NEW SOUTH WALES

– Will the Minister for National Development have a statement prepared showing the quantity and type of steel products that are being exported from, and imported into, Australia? Will the Minister also set out the places to which Australian steel is being exported?

Senator SPOONER:
LP

– In order that I may obtain detailed information for the honorable senator, I ask him to put his question on the notice-paper. In general terms I can say that steel is being exported now only to New Zealand and to the Pacific islands, which are regarded as part of Australia for the purpose of supplying steel. Steel is not being exported to any other areas at present. Sometimes there is a surplus of a particular steel product that cannot be absorbed in Australia, New Zealand or the Pacific islands, and it can be exported to other places, but that is not being done at present. I shall obtain detailed figures for the honorable senator, but I am sure that they will verify my general statement.

page 384

QUESTION

REPATRIATION GENERAL HOSPITAL, HEIDELBERG

Senator SANDFORD:
VICTORIA

– I ask the Minister for Repatriation whether a certain number of wards in the Heidelberg Military Hospital have been or are to be closed down, and if so whether it is because of a shortage of staff. If shortage of staff is not the reason, is the Minister a ware, or does he agree, that the main contributing factor to staff shortages at Heidelberg is the comparatively recent withdrawal of the free bus service from Heidelberg to Melbourne?

Senator COOPER:
CP

– I am not aware that any particular wards are to be closed down. Naturally I cannot, offhand, give the honorable senator the information he desires, but I will make inquiries and inform him of the results. The bus service to which the honorable senator has referred was closed down not recently, but almost twelve months ago, and I do not think that has had. any effect on the enlistment of nursing staff at the Heidelberg Repatriation Hospital.

page 384

QUESTION

COMMONWEALTH SHIPPING LINE

Senator FRASER:

– I now ask theMinister for Shipping and Transport whether any conferences have taken place, either before or since he became Minister, with the shipping association or combine, with a view to the amalgamation of the Commonwealth shipping line with that combine. If such conferences have been or are to be held, will the Minister ensure that the interests of Western Australia are protected in any arrangement for the establishment of a corporation such as I previously mentioned ?

Senator PALTRIDGE:
LP

– I commend the honorable senator for his persistence. I can give him my assurance that I shall at all times see that the interests of Western Australia are protected, and that the interests of all other parts of Australia that need special attention in regard to shipping are protected in like manner.

page 384

QUESTION

COMMONWEALTH BANK. GEORGE TOWN

Senator GUY:
through Senator ANNABELLE Rankin

asked the Minister representing the Minister acting for the Treasurer the following questions, upon notice : -

  1. Is it a fact that the Commonwealth Bank has erected at George Town, Tasmania, a prefabricated building, which is claimed to be an unsightly structure and which was built without reference to the George Town Municipal Council?
  2. If so, is it the policy of the Commonwealth Bank Board to erect such unsightly buildings and to ignore all local building regulations?
Senator SPOONER:
LP

– The Minister acting for the Treasurer has supplied the following information : -

  1. I am advised that the Commonwealth Trading Bank erected a prefabricated building at George Town recently as a temporary measure. The building had been previously used by the bank at Clayton, Victoria, pending the erection there of permanent branch premises. Before the building was erected at

George Town, the hank authorities conferred with representatives of the local council. The bank intends to provide permanent premises at George Town as early as is reasonably practicable.

  1. 1 am advised that it is not the policy of the Commonwealth Trading Bank to erect unsightly buildings and to ignore local building regulations.

page 385

QUESTION

REPATRIATION GENERAL HOSPITAL, HEIDELBERG

Senator CAMERON:
VICTORIA

asked the Minister for Repatriation, upon notice -

  1. When did the Repatriation Department terminate its arrangement to transport staff men and women to the Repatriation General Hospital at Heidelberg?
  2. Why did the department cancel that arrangement?
  3. What was the annual cost of providing such transport?
  4. What was the amount expended in the financial years 1053-54 and 1054-55 on hospital treatment for (o) war widows, and (b) Australian Imperial Forces personnel, at Repatriation General Hospital, Heidelberg?
  5. In view of the inability of war widows to obtain hospital treatment because of the restricted number of public hospital beds and the comparatively high cost of accommodation in private hospitals, what docs the Government propose to do to meet the situation ? fi. How many Australian Imperial Forces personnel are awaiting beds at the Repatriation General Hospital, Heidelberg, for operations for («) glaucoma, and (6) cataract?
  6. fs it a fact that, on the entitlement card issued by the department to “ accepted “ patients, there is a warning that such patients are not to receive treatment at a hospital other than a repatriation hospital and if they do so the department will not pay the fees?

    1. If so, what is the position of such a patient who is ordered into a hospital, other than a repatriation hospital, by his or her repatriation medical officer?
Senator COOPER:

– The answers to the honorable senator’s questions are as follows : -

  1. The service was terminated as from the 31st October, 1054.
  2. The provision of the free ‘bus service did not constitute an arrangement. It was an amenity to- staff which entailed expenditure of public funds and, after -fu 1 1 investigation, it was found that this expenditure could no longer be justified in view of the adequate public transport facilities serving the hospital.
  3. The charge against public funds for the financial year 1053-54 was £10,020 18s. 4d.
  4. With regard to (o), the figures are £51,750 15s. 3d. for the financial year 1953-54, and £33,505 7s. Id. for the financial year 1954- 55. Those figures relate to treatment of both war widows and eligible children under regulation 73 of the repatriation regulations. Regarding CO j I assume when he mentions Australian Imperial Forces personnel the honorable senator refers to all ex-service personnel treated at the hospital. I do not think he intends to differentiate between the three services. The amounts expended on treatment of all classes of ex-service personnel at Heidelberg in the respective years are - 1953-54, £1,395,840 13s. 5d.; 1954-55, £1,410,189 0s. lOd.
  5. My department provides in-patient treatment for eligible war widows in repatriation general hospitals for acute and sub acute (not chronic) conditions when bed6 are available, without detriment to eligible ex-service personnel, and every effort is made to provide in-patient treatment for the maximum number possible. The honorable senator is assured that this policy will continue in the future.
  6. Once again I assume the honorable senator refers to all ex-service personnel and not in particular to one section of ex-servicemen who served in the Army. My inquiries reveal that no personnel at present await admission to Heidelberg for operations in respect of either glaucoma or cataract.
  7. When a member is advised that it has been determined that a certain condition is due to his war service, he is informed that my department will not accept responsibility for expenses incurred privately as he is expected to avail himself of my department’s facilities for treatment of that condition.
  8. Repatriation local medical officers in country areas may, in certain circumstances, arrange admission of eligible patients to local hospitals and my department accept* responsibility for the maintenance fees incurred. Within metropolitan areas, the repatriation local medical officers are directed to advise the Deputy Commissioner of Repatriation that the member is in need of hospital treatment and the deputy commissioner will, if the member is eligible, arrange for his admission to the repatriation general hospital in that State, or in a special case, to some other hospital.

page 385

QUESTION

BROADCASTING

Senator ASHLEY:
NEW SOUTH WALES

asked the Minister representing the Postmaster-General, upon notice -

  1. Is it a fact that the Government is operating two frequency modulation broadcasting stations- at Crow’s Nest in Sydney and Richmond in Melbourne? Are these identical with the two stations approved by Senator Ashley, when Postmaster-General, for experimental operation?
  2. Are these stations fully staffed with technicians avid providing a full programme?
  3. Will the Minister obtain a full statement of the cost of these stations and their annual upkeep and programme costs?
  4. ls it a fact that there are no frequency modulation receivers manufactured in Australia ?
  5. Have these stations been operating for the past six years?
  6. Docs the Government propose to continue their operation; if so when is an announcement to be made to the public regarding the results of the experiments?
  7. Is it a fact that the British Broadcasting Corporation has commenced full-time operation of a number of frequency modulation stations which are being widely publicized as providing a superior kind of high fidelity programme? ‘
  8. Wily is the Government maintaining a screen of secrecy over its frequency modulation stations?
  9. Will some assurance be given that these stations are to remain on the air, and will steps be taken to acquaint the public with their advantages in respect of broadcast programmes ?
Senator COOPER:
CP

– The PostmasterGeneral has now supplied the following answers : -

  1. Experimental frequency modulation broadcasting stations are operating at Crow’s Nest (Sydney) and Jolimont (Melbourne). Both stations were approved by the honorable senator when Postmaster-General. Experimental stations have since been established in Brisbane and Adelaide.
  2. The stations are operated by remote control and are not continuously staffed. They operate for several hours daily.
  3. The capital cost of .the Sydney and Melbourne stations was £1.7,000 and the annual charges are £1,900. No .programme costs are involved as the stations broadcast programmes produced by the Australian Broadcasting Commission for its normal services.
  4. Receivers are not in regular production in Australia.
  5. Yes.
  6. lt is proposed to continue their operation. The Government is considering the use of frequency modulation to supplement the existing sound broadcasting service and as a first step it intends to introduce a bill for the purpose among other things of repealing the statutory prohibition on the use of frequency modulation by commercial stations which was imposed by the Government of which the honorable senator was a member.
  7. Yes.
  8. There is no secrecy regarding the stations.
  9. The stations will remain on the air pending a government decision regarding the general introduction of frequency modulation broadcasting.

page 386

QUESTION

BITUMEN

Senator LAUGHT:

asked the Minister for National Development, upon notice -

Apropos of the Minister’s recent press release on the new refineries at Altona and Kwinana -

Will the Minister advise whether the bitumen by-product of these Australian oil refineries is now being produced in measurable quantities?

5 ) Is any of this bitumen being exported and, if so, to what countries?

Have bitumen imports been reduced since the opening of these Australian oil refineries?

Senator SPOONER:
LP

– The answers to . the honorable senator’s questions are as follow : -

  1. Bitumen has been produced in Australia for a number of years. In 1950, for instance, 00,000 tons were produced. In the first sis months of 1955 production was 74,000 tons, which is approximately the level of local requirements. Of the four large refineries recently commissioned or shortly to be commissioned, only one, namely, that at Kwinana, produces bitumen. Its capacity is small as it has been designed to meet Western Australia’s requirements.

    1. During the first five months of this year 10,000 tons of bitumen were exported, principally to New Zealand.
  2. No. From information given in reply to questions (a) and (6) it will be seen that it was not expected that the opening of the now refineries would have a significant effect on imports of bitumen.

page 386

QUESTION

ROYAL AUSTRALIAN AIR FORCE

Senator COOKE:
WESTERN AUSTRALIA

asked the Minister representing the Minister for Air, upon notice -

  1. Is it a fact that eleven persons have died as a result of Royal Australian Air Force crashes in the last twelve months?
  2. How many of the accidents have occurred as the result of stunt flying in air pageants or in the course of demonstrations?
  3. What are the official decisions in respect of the causes of these accidents?
  4. What are the terms of compensation and/or pensions paid to dependants of Air Force personnel or civilians who have lost their lives in these tragedies?
  5. What has been the total cost incurred by loss of aircraft, compensation and other incidental expenditure arising from these accidents? fi. Has the Minister reviewed the whole question with a view to eliminating dangerous demonstration flying carried out to add thrills to displays?
Senator SPOONER:
LP

– The Minister for Air has supplied the following answers to the honorable senator’s questions: -

  1. Yes. Of the total number killed, seven were Permanent Air Force officers, one was an officer in the Active Citizen Air Force, one was a naval airman and two were civilians - one of these an infant.
  2. Of the five accidents, one only was in any way connected with display flying. This was the Vampire which crashed at Pearce, Western Australia, on the 18th September, 1955, during the Air Force week demonstration. :i. (a) Lincoln, Emu Vale, Queensland, 9ti April, 1055. lt was concluded that this accident resulted from faulty navigation. (6) Wirraway, Werribee, Victoria, 9th June, 1955. The most probable cause of this accident was pilot error. Control of the aircraft was lost when the aircraft was stalled while executing a climbing turn and the instructor was unable to recover control before the aircraft struck the water. (c) Meteor, Williamtown, New South Wales, 20th June, 1955. Although evidence? was not conclusive, it was considered that the pilot lost control of the aircraft by faulty handling of its controls when carrying out an emergency procedure with regard to the retraction of the undercarriage, (!?) Meteor, Mallala, South Australia, 10th September, 1955. This accident is still being investigated. No evidence has been found to indicate control or engine failure. Thu most probable cause appears, therefore, to be loss of control whilst executing an unauthorized low acrobatic manoeuvre. (e) Vampire, Pearce, Western Australia. 18th September, 1055. This accident is still being investigated. ‘No concrete evidence has been found to support the possibility of control or engine failure. The most probable cause is considered, therefore, to be loss of control whilst executing an unauthorized low slow roll.
  3. Insofar as members of the Royal Aus tralian Air Force were concerned, awards of compensation were made to the members’ dependants in accordance with the Commonwealth Employees Compensation Act 1930-1954 and the pensions payable to the dependants were determined under the provisions of the Defence Force? Retirement Benefits Act 1948-1355. As regards the civilians involved, no payments of compensation or pension were made by the Department of Air. Forms of indemnity were obtained in accordance with thi? normal procedure in cases where civilians travel on Royal Australian Air Force aircraft.
  4. The costs arising out of the fatal accidents to Royal Australian Air Force aircraft are as follows: -

Defence forces retirement benefits pension payments involved amount to £2,585 5s. per annum.

  1. Because of heavy training and operational commitments the Royal Australian Air Force will only provide aircraft for display purposes on occasions of national significance. Where displays are authorized the pilots of the aircraft are carefully briefed on the extent of aerobatics permitted and it will be noted from the answers above that the only fatal accident connected with display flying occurred whilst the pilot was carrying out an unauthorized manoeuvre. However, instructions and orders relating to aircraft displays and the extent of aerobatics permitted are at present being examined with a view to seeing whether any revision is necessary.

page 387

QUESTION

CIVIL AVIATION

Senator BENN:
QUEENSLAND

asked the Minister representing the Minister for Civil Aviation, upon notice -

When does the Director-General of Civil Aviation propose to exercise the powers conferred on him bv the provisions of Statutory Rules No. 112 of 1947 to fix the fees to be levied on various cla sR.es of licences?

Senator PALTRIDGE:
LP

– The Minister for Civil Aviation has supplied the following answer to the honorable senator’s question : -

This matter was considered by the DirectorGeneral of Civil Aviation and it was decided to impose certain fees for examinations, but not to make such charges at the present time for the issue of licences to persons to whom such licences were necessary in the pursuit of their livelihood.

page 387

APPROPRIATION BILL 1955-56

Bill received from the House of Representatives.

Standing Orders suspended.

First’ Reading.

Motion (by Senator Spooner) proposed -

That the bill be now read a first time.

Debate (on motion by Senator McKenna) adjourned.

page 387

LANDS ACQUISITION BILL 1955

Second Reading

Debate resumed from the 7th September (vide page 27), on motion by Senator McLeay -

That the bill be now read a second time..

Senator McKENNA:
Leader of the Opposition · Tasmania

– The bill now before the Senate is an exceedingly comprehensive one dealing with the acquisition of land by the Commonwealth for public purposes. It is a complicated and technical measure containing 64 clauses and covering 2G pages, and it deals with every aspect of transactions in land. This consolidation and revision - I think I may call it that - has been under consideration for a considerable period. I think it was first mentioned in 1952 in another place, when a bill to amend the Lands Acquisition Act “was brought before the House of Representatives. After criticism, that bill was withdrawn and an undertaking was given that this consolidated measure would bc brought before the Senate. That was three years ago. The present measure was introduced in the House of Representatives in November, 1954, and it has lain there, and has been subject to desultory debate, ever since. It has been the subject of much consultation and conference, and it is rather interesting to note that it has been subjected to much amendment in the House of Representatives. I was delighted to find that the Government was prepared to accept amendments from private members. There was a very close debate, and the Government lost nothing from accepting the thoughts and amendments of private members of Parliament, when it found that they were well based. Although the measure is very comprehensive, it cannot specifically cover every situation and contingency that may arise in connexion with the acquisition of land. Accordingly, it is not surprising to find that many clauses confer unlimited power upon the courts to resolve the various intricate situations that may arise where there are conflicting or varying divergent interests in the land itself.

The Opposition approves the bill in an overall way. We recognize that there must be power in the Commonwealth to acquire land. When it comes to an exercise of legislative power, one immediately turns to the Constitution to find the head of power from which this purported exercise stems. This is found in placitum (xxxi.). It provides that the

Commonwealth is to have power to make laws with regard 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. That is a power which may be exercised on either a permanent or a temporary basis. It is confined to land alone, although the word “property” has an exceedingly wide connotation. Honorable senators will recall that there have been occasions, particularly during the recent war, when property, apart from land, was acquired on a very wide scale. I remind the Senate of the acquisition of apples and pears, pineapples, ships and many of the munitions and supplies required in the war. All honorable senators will be familiar with the exercise of that power in war-time.

Not only is there power to acquire land on a permanent basis; there is also power to acquire land temporarily. There is power to enter and examine land as well as merely to occupy it for use in connexion with adjoining land of the Commonwealth. The interests in land are multifarious, divided into leasehold, freehold, easement rights, and licences of various kinds. All of this range of rights and interest in land comes within the ambit of the measure now before us. The Senate will have noticed that there is an obligation to acquire the land “ upon just terms “. The words “ just terms “ constitute a phrase that is well understood, and has been pronounced upon on many occasions by the High Court, and the broad principles of it are incorporated in the bill itself.

When one realizes that, under the Constitution, this power to acquire land may be exercised only for the purpose in respect of which the Parliament has power to make laws, one wonders how far that carries it, because specific powers in the Constitution include the power of appropriation which is extraordinarily wide, and. the limits of which have never been determined with any degree of accuracy. It raises the interesting question of how far the Commonwealth may acquire land in relation to purposes which can be effected only by the appropriation of money itself. This has not been pronounced upon by the court, and I do not propose to pursue it at this stage.

The bill provides for both compulsory acquisition, and acquisition by agreement. Although acquisition by agreement is not a matter that is disturbing, it is different from compulsory acquisition. That type of action by a government can do great violence to an individual or a corporation, ft can disturb lifelong associations and greatly offend personal feelings. It can gravely disrupt the future plans of companies and persons, also family arrangements, and it can ruin or disrupt a business and break through contracts. Therefore, although “ just terms “ are to be provided by way of compensation, the compulsory acquisition of land is a procedure not to be embarked upon lightly. lt ought to be a last resort.

One must recognize the right of a government, particularly the Australian Government, in a developing country like our own, to move in and acquire land in key positions. It is rather interesting to note that this bill is probably as pure an example of socialism as could be presented in the Parliament, because in effect it subjugates the rights of the individual or any aggregation of individuals to the broad, social interest. It takes a complete and arbitrary power to acquire land, the i wi i qualifications being that just terms must be paid and that the acquisition must be relevant to some power exercisable by the Commonwealth Parliament.

T commend the Government for its acceptance of the principle that the social good must prevail over the rights and aspirations of individuals or any collection of individuals. This bill was introduced by Senator McLeay who, unfortunately, has passed on, and it represents one of his uncompleted tasks. Everybody on this side of the chamber deplores the fact that he is not here to steer it through its remaining stages. The Minister, in his second-reading speech, pointed out that the bill is not so much concerned with policy as with administration. Tt does not determine the principles upon which the Government will embark upon acquisition, but it does say what procedures shall be followed in the matter of acquisition, the rights of individuals and corporations from whom land is acquired, and generally, it proposes to improve vastly the procedures that have been in operation in the past. It will enlarge the ministerial power in voluntary acquisitions of land.

Whereas, hitherto, the Minister might, without reference to the Executive Council, acquire land on behalf of the Commonwealth, so long as its value did not exceed £50, that limit is now to be lifted to £500. I think it will be conceded that that action has regard to the increasing values of land in the community. Having regard to the great increases that have taken place in recent years, the Government must accept that as a condemnation of its fiscal and financial policies. It is clear that the value of land has doubled, and in some cases trebled, and that that is one of the factors which is contributing to our present economic difficulties, in that it adds to the cost of goods, and it also adds to the cost of our exports, thereby contributing very largely to our balance of payments dilemma of the moment. All large voluntary acquisitions - that is, those in which the value of the land or interest acquired exceeds £500 - and all compulsory acquisitions, must go to the Executive Council. That appears to ma to be regarded, in the terms of the bill, as some kind of safeguard. I confess that, as one with ministerial experience, I do not altogether subscribe to that view. My experience is that the Executive Council functions at the instance of a Minister, with another Minister making a formal quorum of two, and that the normal procedure at au Executive Council meeting is a very formal one indeed, at which a multiplicity of matters is dealt with, and at which no careful or detailed scrutiny is given to individual items. I think that a far greater safeguard would be provided by giving due publicity to acquisitions; in other words, that they must be gazetted, and that proper notice must be given to the persons whose interests are adversely affected.

This bill will facilitate greatly the procedures for a claimant whose land has been acquired, either voluntarily or compulsorily. He may proceed to litigation concerning his claim with far more speed and less irritation. He will he able to go to the court if the claim he has made is not accepted within three months. To date, he could not go to the court if the Minister had refrained from making an offer - and he might continue to refrain for a matter of years - or had not notified him that he disputed the claim. Now, all that is to be brushed aside, which is excellent. Generally, there is to be a streamlining of procedures to enable a claim for compensation to be determined. There is to be a right of appeal from the court of first instance, and we of the Opposition approve that principle.

There are to be new provisions concerning interest. There is also to be power of delegation in the Minister, which is not a new provision. The Minister is to be given power to delegate his powers under the act. One of those powers, of course, is the power to acquire land, or an interest in land, where the value of the land does not exceed £500. I think it not unreasonable that there should be delegation. I say that, after having functioned for some lengthy periods as Minister for the Interior, in an acting capacity. During those periods I was rather terrified to find that armfuls of documents would be landed on my table, day after day, dealing with acquisitions and relatively minor and formal matters. I appreciate that it is impossible for the Minister for the Interior to keep his finger on the thousand and one things of this nature that are being dealt with month by month and year by year in his department. He must, of course, accept vicarious responsibility. The delegation of power ought not to be made indiscriminately. I should like from the Minister in charge of the bill an indication, if he is in a position to give it, of the type of officer to whom the delegation is proposed to be made. If consideration has been given to that matter, I think the Senate should have information about it. I put forward the view that that power ought not to be passed on to subordinate officers or to very junior officers.

There are many interesting features of this bill that, I have no doubt, it would be profitable to debate. I feel that the draftsman, and all who have collaborated in producing the measure, have done an exceedingly fine piece of drafting, and that, whilst no doubt there are matters which could be expressed with more particularity, or with more clarity, it is impossible for any draftsman to encompass in one measure all the various complicated situations that may arise. At this stage, I think the best course is for honorable senators, who are interested in particular phases, to deal with them in committee. For the reason that we are not opposing the measure and that we have no amendments to propose, I do not intend, at this stage, to address myself further to it, but shall leave further discussion to my colleagues on this side of the chamber, and to other honorable senators who may wish to speak on particular aspects.

The Minister in charge of the bill has circulated a schedule of amendments which I think I had the opportunity to peruse in non-printed form. To those, I have no objection. I have only just had placed in my hand proposed amendments, concerning new clauses, to be moved by Senator Wright. I am delighted to find that what happened in the House of Representatives is still afoot, and that at least one honorable senator is taking a very keen interest in this vastly important measure. I shall certainly address my mind to his amendments with real interest. It looks as though he has proposed quite a number of comprehensive amendments, and 1 think it is appropriate that a lawyer, living in practice, should find many of the difficulties that are not apparent to those who are out of practice and who have not figured in the courts in matters of compensation and acquisition. 1 appreciate that there are many difficulties, and personally, I have felt disposed to place some reliance upon two things: first, the fact that the Constitution demands that just terms shall be granted, but that nothing shall prevent a court from giving an interpretation of those words and determining what constitutes “ just terms “ ; and secondly, that the broad provisions of the bill throw very wide powers to the court to sort out the intricacies that are sure to arise in the administration of the acquisition of land by the Commonwealth.

Senator WRIGHT:
TASMANIA · LP; IND from June 1978

.- I address myself to this bill with some encouragement after the remarks that have been generously made by the Leader of the Opposition (Senator McKenna), because the legal profession does have actual experience of the impact of this kind of legislation upon the property of the people. With regard to land, we use the term - and it is used in this bill - as meaning all that goes “with the land, including the buildings on it. As Senator McKenna has indicated, that land becomes part of a man’s being, from a sentimental point of view, if it is his home, and it becomes part of his economic being if it is his place of business or his farm. There is a very laudable body of thought in the community which rejoices in support of the idea that rights of property, considered in proper perspective, are the great safeguard of the standard of living of the people. Those rights are valued as precious by those who hold them, and I abjure any attempt to use them to the detriment of the public interest.

When the Constitution was framed, it was realized that the new Commonwealth Parliament must be vested with a power to acquire property. The fathers of the Constitution very thoughtfully provided that that power should be exercised only on just terms. Those three little words have come to be interpreted by the High Court of Australia as a real safeguard against the acquisition of property on unjust terms. Credit. is due to those who have administered the relevant legislation because, over the years, undoubtedly a disposition has been shown by the courts to be entirely just to the dispossessed property owners whatever their property might be. It is idle and, indeed, wasteful of time to refer to the various principles that have been laid down by the courts to define compensation based upon just terms, but the Constitution requires that any land taken over compulsorily by the Commonwealth shall be acquired upon that basis.

When this bill was introduced, reference was made to a recent decision of the High Court of Australia in the case of Grace Brothers. In that case, the Lands Acquisition Act of the Common wealth was challenged from the point of view of its constitutionality on the basis that it did not provide just terms. Part of that attack was founded upon the view that interest in proper measure was denied to the owner. The High Court rejected that contention, and pronounced that the legislation conformed to the Constitution. Although the legislation survived that attack, the Parliament should be grateful that the AttorneyGeneral’s Department has seen fit to remould the measure and improve the machinery procedures of the bill to enable the legislation to operate with less delay and more convenience than some of the provisions of the old legislation required.

Having said that, I wish to address myself to the rights of the land-owner. I remind the Senate that the procedures authorized by this bill are simply these: The Minister, in the case of land valued at less than £500, and the GovernorinCouncil in the case of land in excess of that value, can deprive you or me of our property simply by signing a document or a proclamation of acquisition.

Senator Spicer:

– The Minister cannot do that. He can acquire only by agreement.

Senator WRIGHT:
TASMANIA · LP; IND from June 1978

– I thank the Attorney-General for the correction. I adopt entirely the statement of the Leader of the Opposition (Senator McKenna) about the distinction between the Minister and the Governor-General for this purpose. The Governor-General acts in council which is constituted by the presence of two Ministers.

Senator Spicer:

– That is so.

Senator WRIGHT:

– As Senator McKenna has stated from his own experience as a Minister, the Minister in a centralized government like ours feels obliged to endorse what the department has done, and I would suggest that it is undeniable that, in 99 cases out of every 100, the Minister does not know what property he is acquiring. No doubt he would inform himself in matters of importance, but I suggest that nobody could urge successfully that there is any real distinction between the act of the Governor-in-Council and the act of a Minister. The fact is that a Minister can dispossess me or anybody else of our property, simply by signing a document, putting it through the Executive Council and gazetting it. There need not be any further procedure or safeguard than this : When the proclamation has been gazetted, it is required to be laid upon the table in each House of the Parliament, and either House may pass a resolution disallowing the proclamation. Thereupon, the proposed acquisition is nullified. Honorable senators who have sat in this chamber for many years know with what complete formality that procedure is treated, and whether it acts as anything more than a formal safeguard for the owner.

When the proclamation has been dealt with in that way I, instead of owning my property, shall be entitled, under this bill and the Constitution, to claim from the Crown compensation in terms of money based upon just terms. Anybody with experience of land valuation cases knows the disputes and differences that are engendered with perfect bona fides, and how those differences tend to be prolonged. It is a costly business where the landowner is compelled to employ valuers, expert witnesses and members of the legal profession, because the fees of all of them - and I make no discrimination between valuers and counsel - are not insignificant. Naturally, the landowner is hesitant about going to court because the Crown pays into the court, or into the Treasury, a certain amount which it fixes as the value. The question then is whether the true value, to be determined by the court on just terms, exceeds that amount. The mere troublesome process of litigation deters the landowners, in a contest with the Government, from going to the courts and following the case right through to the bitter end.

Senator Vincent:

– Particularly in the case of small landholders.

Senator WRIGHT:
TASMANIA · LP; IND from June 1978

– As Senator Vincent has reminded me, that applies particularly in the case of owners of small properties. To a firm like Grace Brothers, these procedures cause no apprehension.

Senator Anderson:

– No just terms apply in a case of the New South Wales Government.

Senator WRIGHT:

– That is another point with which we are not troubled, fortunately, in this connexion. As Senator MeKenna has stated, the process concerned is capable of disturbing people’s lives to their very foundations. I agree with the Leader of the Opposition that it is time that we considered the safeguards that are proper in order to ensure that these procedures are followed through with justice. I can call to mind cases that have caused the most intense hardship to the people concerned, especially in times of swiftly changing values, not only in the federal sphere but in the sphere of the States also. I remember a case in which a man and his wife who, having settled down in about their seventieth year after the husband had spent his life working arduously as a miner, had their cottage taken without notice, and no persuasion could induce the government concerned to relinquish that acquisition. In my own State that case caused great public outcry, and it was thought to be a real injustice. I mention that matter because I want it to be clearly understood that I do not speak primarily on behalf of the big owner who has the money to fight the Government to a finish. I have in mind another case concerning one of the most beautiful farming properties in the neighbourhood of a certain city in Tasmania. The property has been improved to the Nth degree, from the point of view of pasture and appearance, and the Government has issued a notice that it will acquire that property. For what purpose? In this instance it is for the purpose of housing.

Senator Scott:

– This is a State matter ?

Senator WRIGHT:

– Yes, but we are dealing with the functions of government, and I draw no distinction between the attitudes of State and Commonwealth governments. I make no party matter of this, because I am the first to recognize that in a free democracy the time will come for a change in our Australian Government, and we want to deal with this matter impartially and from the point of view of general justice, and not in the slightest degree in a partisan spirit. I have given the Senate instances of compulsory acquisitions within my own experience, and if I had been the owner in those instances I would carry a grievous scar upon my soul, caused by an injustice of which I was the victim, no matter what the money compensation. The money payment never gives complete compensation.

I therefore wish to advocate the proposition that before the procedure of government acquisition is finalized by a government proclamation, the owner should be entitled to notice from the Grown of its intention to acquire. I have specified that the notice should be no longer than 28 days, in an effort on my part to make it a reasonable provision, so as to give it a chance of Acceptance.

Senator Vincent:

– The honorable senator is not referring to a notice of acquisition, but to a notice of intention?

Senator WRIGHT:

– Yes. The Government, before signing the proclamation to acquire) should give to the landowner 2S days’ notice of its intention to acquire. In explanation of that, may I say that not only governments have been given this power. In the industrial revolution of last century, when railways companies, harbour companies, waterworks companies, gas companies and other public utilities were establishing themselves for the public good, a general act was passed called the Land Clauses Act, and many special acts were passed in relation to particular projects, those acts incorporating the provisions of the Land Clauses Act, which gave certain powers to the various public utilities. For instance, if a railway company had the problem of establishing a certain railway line, it was empowered to acquire the necessary land. But in all those procedures Hie very first step to be taken was by the public utility concerned, which had to give to the owner a notice to quit. I shall deal with this matter more specifically in the committee stage, but I am asking the Senate to consider this aspect of land Requisition by the Australian Government, and especially to consider whether it is reasonable that the Minister should be required to give notice in writ ing to the land-owner for 28 days before the signing of ‘ ‘the proclama’tion that effects the acquisition of ‘the land.

Another matter that the Senate might permit us to discuss is this : In relation to the acquisition of land, recent experience has disclosed ;the possibility of fraud on the part of acquiring a uthorities. We know that in these land transaction? there is great scope for secret payments, and it occurs to me that when a power that is arbitrary in its nature, as Senator McKenna described it, is entrusted to the recommendation of some official in the Department of the Interior, and i1exercised by nothing other than a signature on a piece of paper in the Minister’s office, which is passed through the Executive Council and then gazetted, unless there is an opportunity for those concerned to ventilate publicly any allegations that they make of skullduggery here, or preference there, or some ill-will operating in regard to the next property, it is likely that injustice will occur. I am a great believer in the healthy practice of exposing matters concerning public transactions to the fresh air of public debate. That is one of the few values left in this chamber. The public has a conscience, and the public conscience in the Australian community is a pretty fair index of where the public interest lies, once the matter has been fairly debated.

There is a section in the New South Wales legislation which provides that in the case of an acquisition of importance, such as of a property valued at more than £5,000, the land-owner shall have the right, within 28 days, to request a public inquiry as to whether that acquisition is in the public interest. I am not wedded to the figure of £5,000: I merely used that figure as an illustration. That inquiry could be presided over by the chairman of the Land Valuation Board constituted under the Land Tax Assessment Act, an office still in existence and adorned by the present occupant, Dr-. J. F. N”. Murray. Apart from holding that office he, personally, would be an ideal man to decide not merely questions of value but also matters which depend upon an intuitive discernment and consideration of public interest. He is an ideal person to preside over such, an inquiry, and I have no, doubt that his successor in due course would also do equal credit to the situation. I offer the view to the Senate that such a procedure would give a real sense of satisfaction to an owner who had a grievance. The only effect of that inquiry would be that the report that was prepared as a result of it would be laid on the table of each chamber of the Parliament together with the proclamation so that the Parliament then could, on that information, discharge its duty to determine whether or not the particular acquisition was in the public interest. Neither of those procedures would impede or prejudice the effectiveness of government acquisition of land, and as they would provide an opportunity for the public interest to be consulted, outside the Minister’s office they would be great improvements upon the present arbitrary procedure.

The reason why I think we should give consideration to these matters is because, as we all know, the scope of the operation of this bill has expanded terrifically over the last 50 years. The functions for which the Federal Government acquiresland to-day are naturally, and quite properly, very much more extensive and widespread than they were in 1900. This act now has a greater impact on the people. It affects very many more people to-day than it did years ago. Therefore, any improvement we can make in procedure will be in the interest of proper recognition of rights of property in land in the spirit in which the ordinary villager can call his cottage his castle and enjoy the security that British law accords to him within the confines of his property, a security which is one of the most precious possessions that a man can have.

Senator Vincent:

– Would the honorable senator care to make observations on what he means by the expression “ in the public interest “ ?

Senator WRIGHT:
TASMANIA · LP; IND from June 1978

– I shall do so at the committee stage. I have just adumbrated these amendments which have been circulated only to-day.

The third thing I suggest to the Senate is the inclusion in this bill of the alternative process of arbitration, alternative to litigation, as a means whereby the

Minister should be authorized to determine the compensation payable. Having had experience of law courts and of arbitration I am bound to say that any person who has a right to claim compensation should have the right to agree with the Minister, if the Minister is so authorized by this Parliament, that his compensation be determined by an arbitrator rather than by a court. Procedures of a court involve delay and are often more costly than arbitration ; and some people prefer arbitration as a more satisfactory and convenient way of adjusting these matters. That proposition should need no argument to win support.

Senator Vincent:

– It is a very common practice in Britain.

Senator WRIGHT:

– That is so. Before concluding I should like to focus some attention on clause 33 of the bill. I have circulated no printed amendment to this clause, but I hope the committee will deal with it at some length. At this stage, I simply ask whether any honorable senator would sell me his property to-morrow on the terms of deferred payment expressed in that clause. We should consider whether in the case of a claim deferred for two years interest should be payable at a lower rate than in the case of a claim deferred for more than two years. It will be noticed that interest at 8 per cent, is provided for if a claim is settled within two years, and at 4$ per cent, if the determination of compensation takes longer than two years. I refer to that clause, without putting forward any definite proposition, in the hope that my colleagues or other honorable senators will take an interest in that point before the bill reaches the committee stage. I do not wish to delay the passage of the bill by making a further comment. I have put my observations in this form in order to detach the bill from the category which concerns only lawyers, and so that honorable senators will realize that the bill makes a very important impact upon the people’s possessions, possessions which often represent a lifetime’s work. Therefore, as we review this legislation to-day for the first time in fifty years we should prescribe procedures which will be improvements upon those prescribed in the principal act.

Senator O’FLAHERTY:
South Australia

– I arn not sure whether the Attorney-General (Senator Spicer) would like me to move for the adjourn al icnt of this debate in order to give honorable senators an opportunity to consider the suggestions made by Senator Wright. The amendments he has foreshadowed have just been circulated, and they appear to show that there is a rift in the lute on the Government side of the Senate. Judging by interjections and the reactions to the dramatic utterances of Senator Wright, the bill *a** drafted might not go through. Perhaps the Government should give earnest consideration to some of the matters that have been brought forward by Senator Wright. This debate has shown that a deep cleavage exists in the ideas of Government supporters about the acquisition of land by the Commonwealth.

I heartily agree with some of the propositions of Senator Wright. For example, I can see no reason why there should not be a provision inserted in the bill, under which notice could be given to the owner of land when the Commonwealth wishes to acquire it. The period of 2S days’ notice suggested by Senator Wright seems to be reasonable, although there would be no objection perhaps to making it fourteen days’ notice. I have had some contact with people whose land has been acquired by governments, and I remember one particular case where the land was taken over by the Federal Government. In that case, a man was renting the land from the owner. The land was acquired by the Department of Civil Aviation and, although the owner received compensation, the person who was renting thu land from the owner got nothing at all. in spite of the fact that he suffered considerably by having the land taken over by the Commonwealth. In a case such as that, if notice of resumption were given by the Commonwealth to the owner, the owner could make some arrangement for compensation t’o the tenant. Perhaps the tenant could put in a claim for the damages that he would suffer if the land were acquired.

Another matter that came to my attention was the acquisition of some land at the beginning of World War II. for some unspecified purpose. That land was not used at all by the Commonwealth. It was later disposed of by the Commonwealth, but the man from whom it has been acquired had no say in its disposal, and was not even given first offer of the land. If notice of acquisition were given to land-owners, they would know what was going to happen to their land and could institute some form of inquiry about why the Commonwealth wanted the land. Of course, such a procedure would delay the acquisition of land, and if it were required urgently the delay might operate against the interests of the nation. Nevertheless, I believe that in most cases the delay would allow some sort of inquiry into whether it was really necessary to acquire the land.

Some of the amendments proposed by Senator Wright were canvassed in another place, but the Government indicated that it was not prepared to alter this bill in any way. I suppose that the Government’s attitude will be similar in this chamber. It is a usual attitude of governments to introduce legislation of the kind that it wants, and to take no notice at all of the wishes of anybody else. I do not blame the Government for that attitude, because it is common to all governments. Nevertheless, Senator Wright mentioned that the Government’s attitude indicated that it would make some political capital out of the attitude of the Opposition if the legis-hi ti on were challenged. I am not opposed to the measure, although I again direct the attention of the Government to the cases that T have mentioned, and I suggest that all persons who have any interest in land that is acquired by the Commonwealth should get fair compensation for the loss of their interest in the land. I also suggest that, if the Government discovers, after having acquired land or property, that it is no longer needed, the original owner should be given an opportunity of taking it back at the price the Government paid him.

I arn well aware that the Government acquired land years ago for specific purposes, but has never used it, and that it is now much more valuable than it was when it was acquired. Even so, the original owner could be given an opportunity to take it back at a fair present-day valuation, if the Government no longer requires it. Honorable senators well know that for many owners the cost of taking a case to the courts to discover the reasonable value of their property is quite prohibitive. The land was sold, but it was not offered to the original owner at the price paid to him for it. The land was put on the market and sold at a much higher price than the original owner paid for it, and also for more than he received for it from the department. Some provision should be made to meet such cases. The original owner should be given the opportunity to buy the land back for the sum paid to him for it by the Government. If necessary, there could be some time limit, say five years, or something of that kind. I would not object to a provision of t,hat nature.

Senator Vincent:

– What about improvements made by the Government?

Senator O’FLAHERTY:

– There may be cases of that kind, but those I have in mind relate to land on which the Government has made no improvements whatever. If improvements have been put on the land, naturally the purchaser of thu land should be required to pay for them; but those are not the cases I have in mind. I am speaking of land that has been acquired by the Government, but not used, and when found to be redundant has been sold at a profit.

The only other objection I have to the bill relates to the delegation of authority, to which the Leader of the Opposition drew attention. The Government ought to give consideration to this matter of the delegation of authority by a Minister, or the Governor-General, as the case may be. There have been instances of a person to whom certain powers have been delegated being made scapegoat, while the Minister who has delegated that authority goes free. There should be no delegation of power by a Minister where he can exercise his authority without any trouble at all. I admit that it may be necessary to delegate authority to some one in places like the Northern Territory, but even there there is an Administrator. In my opinion, there should be no delegation of authority to any person below one holding the position of Administrator of the Northern Territory. There should not be any delegation of authority in these matters by the Government to any person with less authority than that possessed by a Minister. Let me give an instance of the kind of case I have in mind. The Civil Aviation Department wants land for civil aviation purposes, and the Minister for the Interior, or the Minister for Civil Aviation, as the case may be, ‘delegates his authority to some other person. In that way, the Minister would not come into the transaction at all. There have been numbers of cases in which the civil aviation authorities have acquired more land than they needed. In some cases trouble has arisen about approaches to such land. In the House of Representatives references have been made to complaints by owners of land in the vicinity of aerodromes that their property has depreciated in value because of its proximity to aerodromes. These people have no redress. There is no one, except the delegated authority, with whom they can deal ; and if he will not do anything, the result is that these land-owners lose money. Unfortunately, it is a losing proposition to own land in the vicinity of civil aviation fields. When land in excess of civil aviation requirements is acquired, but not used, and is never likely to be used because of advances made in civil aviation, and the land is then sold, it is possible for the person exercising the delegated authority to get into hot water, while the Minister escapes. The Minister ought to accept full responsibility for the acquisition of all land required by the Government. There should be no delegation of power at all, giving other persons authority to acquire land in the name of the Minister.

Senator SPICER:
AttorneyGeneral · Victoria · LP

in reply - It may be more convenient to leave until the committee stage is reached some of’ the matters that have been raised during the second-reading debate on this bill, but there are some general observations that I should like to make on the matters that have been mentioned by honorable senators. In the first place. I remind the Senate that this bill does not lay clown. any new principle in relation to the acquisition of land by the Commonwealth. This is a consolidating measure, which brings up to date legislation that has operated in the Commonwealth since about 1906. The methods of acquisition of land provided for in this bill are those which have been in operation in relation to the acquisition of land by the Commonwealth for over 50 years. When dealing with this subject, it is important r,o bear in mind, as Senator Wright pointed out, that the acquisition of land by the Commonwealth is subject to the constitutional guarantee that such land shall be acquired on just terms. It is true, I suppose, that almost any individual who becomes the subject of an acquisition order served on him by any government, more particularly a small property owner will feel very dissatisfied, and no amount of compensation will satisfy him if he feels, perhaps with some justification, that he has been unjustly deprived nf his home, or farm, or some other property to which he attaches a particular sentimental value. I suggest that, in the case of such people, no terms relating to the acquisition of their property would overcome that feeling of injustice. No doubt that kind of thing could happen to any individual of this Senate if some part of his property became subject to acquisition payments.

The general scheme of the act, as it now operates, and will continue to operate if this bill becomes law, is that, first of all, a notice is published in the Gazette which has the legal effect of compulsorily acquiring the property. After that proclamation is published, notice is given to the owner, and under a provision contained in the act and in this bill the compulsory acquisition may be- disallowed by either House of Parliament. Although honorable senators may say that this power of disallowance is never exercised, the protection is provided in the act. A person who receives notice of acquisition nan approach his local parliamentary representative, and if that honorable member feels that the acquisition is unjust he can bring the whole of the circumstances before either House of Parliament. If Parliament is not sitting, a time is specified - a certain number of sitting days in the next session of Parliament - within which he may do so. That procedure has operated for 50 years under this legislation, and, taken by and large, has given satisfaction. I concede that complete satisfaction will never be given to the owner who is deprived of property which he values when he discovers that it is to be taken over by the Government to be used for a purpose which he considers to be far less worthy than that towhich he was putting it. But if a person’s property has been subject to a compulsory order he can, by the simple process I have referred to, bring the whole matter before either House of Parliament.

Senator Kennelly:

– lt is not so simple as that.

Senator SPICER:

– If an elector of the State of Victoria approached Senator Kennelly with regard to an acquisition and was able to make out a case to show that the acquisition was unjust, I do not imagine that my friend would not bring that matter before this House and have it examined.

Senator Kennelly:

– It has been said already, by way of interjection, that that procedure is like Caesar appealing toCaesar.

Senator SPICER:

– Surely it is not. An acquisition is made by the GovernorGeneral - that is, by an order executed at a meeting of the Executive Council.

Senator Kennelly:

– As the AttorneyGeneral knows, that is an order made by the Minister of the day.

Senator SPICER:

– I will agree with that. When the matter is brought before either House of Parliament for review, that House can disallow the acquisition.

Senator Gorton:

– Might not the Government have entered on the land in the meantime ?

Senator SPICER:

– Yes, but if the acquisition were disallowed the Government’s right to occupation would be negatived. It is important to have regard to the fact that acquisitions can be made by the Commonwealth for any of the purposes for which the Commonwealth has power to make laws. The Commonwealth possesses many important powers, and it may find it necessary from time to time to acquire land.

Senator Kennelly:

– Would not this legislation be applicable only to peacerime acquisition? In war-time, acquisition can be made under defence powers.

Senator SPICER:

– This bill relates to acquisition of land for defence purposes.

Senator Kennelly:

– But not in wartime. The Commonwealth can acquire what it likes then, under defence powers.

Senator SPICER:

– The Commonwealth must acquire land under this act for defence purposes whether in time of war or not. The property still has to be acquired on just terms. It is true that in war-time a series of regulations can be passed to facilitate the acquisition of land, but they would still have to provide for just terms. All that could be done in those regulations would be, perhaps, to shorten the times in which notices might have to be given to owners because of particular circumstances. Honorable senators should not overlook the fact that even in peace-time land may have to be acquired for defence purposes, and it may not always be possible or advisable to give public notice of the precise reason for acquiring that laud. One could imagine circumstances in which a Minister felt that it was desirable for some important defence project to acquire a piece of land, but it might be considered as being against the public interest to disclose what were the precise objectives that were to he achieved on that land when it was acquired. It seems more appropriate that a compulsory acquisition should be disallowed by either House of Parliament than that it should become the subject of inquiry by a board. Members of Parliament are more likely to handle the matter well than would be a board of inquiry constituted on the lines suggested by Senator Wright.

Senator Gorton:

– But would not the board of inquiry hear the matter in camera?

Senator SPICER:

– No, the board would conduct a public inquiry. The composition of the board, under an amendment which has been made, would not be peculiarly appropriate to deal with a. matter which could arise in relation to the acquisition of land by the Commonwealth for public purposes.

Senator Kendall:

– Still, you get 28 days in which to say you do not want it.

Senator SPICER:

– If you are going to have a public inquiry - and Senator Wright’s amendment contemplates a public inquiry into the question whether this is an acquisition for proper Commonwealth purposes - and if that inquiry is to be of any use, it must set about the task of determining whether it was a proper thing for the Minister to acquire that particular piece of land rather than another piece of land, or, perhaps, whether it was proper for him to have acquired any land at all. Is the Minister to go down to this body and explain to it in public - in all circumstances, mark, you - whether it be a defence acquisition or some other kind of acquisition? Is he to go before the board of inquiry and lay before it all the reasons which may have induced him, at that particular time, to fix upon the acquisition of that property?

Senator Pearson:

– Would the Minister have to do that, if the matter were brought into the Parliament?

Senator SPICER:

– If it were brought into the Senate, it would be in a proper place for public debate. Whether the Minister in the Parliament, either in. the House of Representatives or the Senate, will disclose the whole of his hand, will be a matter for judgment by him, and it will be a. matter for judgment by the representatives of the people in this Parliament, in that set of circumstances, to say, “ Well, the’ Minister may have been affected by things that he cannot disclose to u3, and we are not prepared to upset his acquisition “, or, on the other hand, to say, “ Well, he has not disclosed the whole of his hand. We are not prepared to accept the claim that this is a proper acquisition, and we disallow it “. Because these things affect the public interest, it does not seem to me that we can have any better forum for their determination than the House of Representatives or the Senate, which is the position under the act as it stands at present.

Senator McKenna:

– Would the Attorney-General comment on sub-clause (4.) of clause 11, which relates to the power of the Parliament to disallow? May I suggest that that might be wider nhan the rule indicates?

Senator SPICER:

– There are some limitations to it. Sub-clause (2.) of clause 11 provides that -

Either House of the Parliament may, within thirty days after a copy of a notice has been laid before it in pursuance of the last preceding sub-section, pass a resolution that the notice shall be void and of no effect, and thereupon the notice shall bc void and of no effect, and the land shall bc deemed not to have been vested in the Commonwealth.

Sub-clause (4.) provides -

Sub-section (2.) of this section does not apply in respect of a notice relating to land- (n.) where moneys have been appropriated by the Parliament for or towards the purpose for which the land was acquired ;

In other words, if Parliament has, by its appropriation, indicated its approval of the purposes of the acquisition, then the acquisition cannot be disallowed. Subclause (4.) continues -

  1. where the Governor-General has authorized the construction or carrying out of the work or undertaking in respect of which the land was acquired and moneys are legally available for the purpose; or (<;) where the Minister certifies under his hand that the estimated value of the land does not exceed One hundred pounds.

My reading of that is that the acquisition cannot be disallowed by either House of Parliament if what has previously taken place amounts to an. approval by the Parliament.

Senator McKenna:

– That approval might be at large, and not in respect of a particular project or acquisition.

Senator SPICER:

– I should doubt that. It may be that it would be worthwhile to have a look at sub-clause (4.), to see whether it could not usefully be tightened up a little, but the purpose of it, whether it is expressed effectively or not. is quite sensible and logical - that either House of Parliament can disallow an acquisition, but not an acquisition which the whole Parliament has, in fact, approved. Whether that position is as adequately expressed in the clause as the honorable senator might like it to be expressed is another matter, and is one of those things that we might usefully discuss.

Senator BYRNE:
QUEENSLAND · ALP; QLP from 1957; DLP from 1968

– Is Parliamentary appropriation, without specific legislation, adequate to authorize the commencement of a project? Is it a general authorization?

Senator SPICER:

– I think it may be. At any rate, there might be some projects which, conceivably, could be carried on once you had the money to spend. It might be that you would not want any legislative authority to carry them on.

The second matter to which Senator Wright referred was the suggestion which, of course, is not un associated with his proposal for inquiry by a board of inquiry, that the owner of the land should get a notice to treat. I take this as being based, to some extent, upon procedure which has operated for some considerable time in England under the Land Clauses Act. If honorable senators look at the position under the Land Clauses Act in England, they will find that the notice to treat provisions are of a rather different character from the kind of thing contemplated by Senator Wright in his amendment, because the notice to treat, as I understand it, under the Land Clauses Act in England starts a process which ends, without any approval or disapproval by the owner of the land, in his losing the land and his receiving compensation. In other words, it is much the same process as we have, except that you do not, at the start, commence with a proclamation of compulsory acquisition. You give a notice to treat, but the notice to treat does not just mean that the owner is invited to come along and have a talk with you about whether he will or will not sell his land. The operation of the notice to treat is an indication to him that he is called upon to give particulars of his land and to negotiate as to its purchase, but if he does not carry on successful negotiations for its purchase, then the law will operate so as to leave him, in the end. with money compensation for his land.

Senator Vincent:

– The Minister may withdraw, under the Land Clauses Act.

Senator SPICER:

– Yes, he can with.draw but the moment the owner gets the notice to treat under this legislation he owns land which has a blot on it; he owns land which, at that very moment> has become subject to.. a legal process which, in the normal event, will end with its compulsory acquisition. I really do not see that that is very different, in the long run, from our own position.

The third proposition which Senator Wright put up—

Senator Vincent:

– What is the Minister’s objection to Senator Wright’s first proposition ?

Senator SPICER:

– I do not see that it takes us any distance. I do not think it gets us anywhere. It is an alternative process to the process we have at present.

Senator Vincent:

– Does not the Attorney-General think that it is a matter of common courtesy to tell a man that you are going to take his land ?

Senator SPICER:

– The process we have at present has been in existence for 50 years and has operated pretty satisfactorily. I suggest that there may well be cases - not many, but some cases - in which it is absolutely essential that the Commonwealth should have a particular piece of land, that it should have it quickly, and that it should have complete legal title to the land. If, prior to any of that, happening, the Commonwealth first of all had to give notice to the owner, and give him an opportunity to treat, and all the rest of it, it might and could impose, in some circumstances, unnecessary and dangerous restraints upon what might be the exercise of a very important power. Reference has been made to the provision for notice to treat under the land laws in England. That is largely the sort of measure that would operate in the case of private companies to enable them to acquire land, for example, for railway purposes.

Senator Wright:

– That right was given under specific parliamentary power in a specific bill.

Senator SPICER:

– I agree, but it is difficult to put into the same category the acquisition of land by the Commonwealth Parliament for defence purposes and the acquisition of land by a railway company for the purpose of building a railway. They fall into different categories. I suggest that it would be unfortunate to insert limitations, which would apply in every case, because the Commonwealth may be called upon to acquire land in the public interest without being able to say the precise purpose to which the land will be put, and it may have to act with some speed. I repeat that it would be unfortunate to insert, such limitations when the fact is that the existing legislation has operated for more than 50 years without much opposition from the public. Further, the legislation does provide reasonable safeguards against unjust acquisition by enabling the matter to be dealt with, in appropriate cases, by the representatives of the people in either House of Parliament.

Senator Wright also suggested that the provisions of the bill would be improved by providing for settlement of compensation by arbitration. I am prepared to accept his amendment in that connexion.

Senator Vincent:

– Why not accept the other?

Senator SPICER:

– Because I accept one amendment, that is no reason why I should accept another. There is no association between the provision for arbitration and the other provisions with which I have dealt. They are separate and distinct. In the case of the provision for arbitration, I say frankly that I am disposed to think that there would he no difficulty in giving effect to the settlement of compensation by arbitration under the bill as it is drawn at present, but we can make that quite clear by the sort of provision Senator Wright has suggested. Therefore, I would be prepared to accept that particular amendment at the committee stage.

The Leader of the Opposition (Senator McKenna) made some reference to the delegation provisions which are provided for under clause 61. It is true that there is a wide power of delegation. That power has always been vested in the Minister administering the act and the Attorney-General. Both have wide powers. In relation to the power of delegation that I have, I believe that it should be delegated to the principal legal officers in the States. I believe that that would be true of any Attorney-General.

In other words, it would be exercised by the Crown Solicitor, the Solicitor-General or their deputies throughout the Com.monwealth. It would be for the purpose of” enabling them to execute, on behalf -of the Commonwealth, documents about which they knew far more than the Minister himself could possibly know - -documents covering transactions and dealings in which .they themselves were concerned on behalf of the Commonwealth. How the power of delegation of the Minister for the Interior would be used would be a matter for the Minister concerned at the time. I should think that the power of delegation there would be limited, probably to the chief property -officers in the States, perhaps the head of the department and one or two other persons in a similar position. To a large extent, that would be done for the purpose of relieving the Ministers of the tedious task of signing a number of documents of which they could know nothing. In the long run, it is far better that the person who knows something about the matter before him should be charged with the responsibility of performing the act of signing documents. That is largely what it means when put into operation.

Question resolved in the affirmative.

Bill read a second time.

In committee:

Clauses 1 to 3 agreed to.

Clause 4 (Parts).

Senator SPICER:
Attorneygeneral · Victoria · LP

– I move -

That consideration of the clause be postponed until after consideration of proposed new clauses 24a and 24b.

In the amendments circulated by Senator “Wright, he has suggested an amendment to clause 4. I suggest that, for convenience in dealing with this matter, it would be better to consider the substance of Senator Wright’s later amendments, the acceptance of which would necessitate an amendment of clause 4, rather than to consider them at this stage when the committee is merely dealing with headings of particular divisions. In other words, if the committee adopts the proposed new clauses, the proposed amendment to clause 4 would be a consequential amendment.

Senator McKENNA:
Leader of the Opposition · Tasmania

– I have a suggestion to make to the committee as to the manner in which we should deal with this bill. The amendments proposed by Senator Wright were circulated after the second-reading debate had begun, and the Opposition has not had time to consider them in detail. We understand only the broad principles of the amendments. There appear to be multitudinous consequential amendments, and I do not like to address myself to them until I have traced them right through. If the debate could be adjourned over the dinner hour, the committee might be able to make better progress, and the Opposition would have a better chance to study and follow the proposals of Senator Wright. I suggest that in the meantime we consider one or two other minor bills.

Senator SPICER:
AttorneyGeneral · Victoria · LP

.- I am agreeable to the course that has been suggested by the Leader of the Opposition (Senator McKenna). I have no desire to hurry this matter. It was not rushed through the House of Representatives, and I do nOt propose to rush it through the Senate.

Progress reported.

page 401

AUSTRALIAN CAPITAL TERRITORY AND JERVIS BAY (LANDS ACQUISITION) BILL 1955

Second Reading

Debate resumed from the 7th September (vide page 28), on motion by Senator McLeay-

That the bill be now read a second time.

Senator McKENNA:
Leader of the Opposition · Tasmania

– The bill now before the Senate deals with the acquisition of land in the Australian Capital Territory and Jervis Bay. The position is entirely different from that which arises under the Lands Acquisition Act. There is absolute power in this Parliament to do as it wishes in the Australian Capital Territory. It is not bound, in acquiring land in the territory, to have regard to the necessity for providing just terms. I am speaking from memory and am open to correction, but I think it is section 122 of the Constitution that confers this exceedingly wide power. The Landa Acquisition Bill chat we were considering a while ago will have complete application in the Territories, with a qualification which L shall point out in a moment.

This bill seeks to amend five acts, the Seat of Government Act 1908, the Seat of Government Acceptance Act 1909-

L938, the Seat of Government (Administration) Act 1910-1947, the Seat of Government (Administration) Act 1930- L955, and the Jervis Bay Territory Acceptance Act 1915. It came as a shock to me, when I perused these acts that are sought to be amended, to find that in the Australian Capital Territory at present cbe basis of acquisition of land, if the Commonwealth decides to acquire it compulsorily, is to be taken as the value as at the Sth October, 1908. Later, that was altered so that the basis was the value as at the Sth October, 1908, with the value of improvements effected in the meantime, or the improvements as at the date of acquisition! Land in Jervis Bay, if acquired, has to be acquired at the value of the land as at the 1st January, 1914. Those two provisions, like all laws that are unjust, have fallen into disuse and contempt, and I find that, despite the fact that the law is as I have mentioned to the Senate, such acquisitions as have taken place in the Australian Capital Territory and in Jervis Bay have proceeded by ignoring those statutory provisions entirely, and, by and large, when an acquisition has occurred just terms have in fact been given. That may be open to question in one or two cases, but it is a matter of substantial justice being done and the statutes being ignored.

When I refer to the bill, I am disturbed at a provision in clause 5 (1), where a new section is sought to be inserted. The proposed new section reads - 7a. The application of the Lands Acquisition ct inn”) in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) for or in relation to the resumption if land held under leases granted hy or on behalf of the Crown.

If I may paraphrase that somewhat loosely, it says that despite the fact that the Lands Acquisition Act, imposing an obligation upon the Commonwealth to grant just terms, is applied in the Australian Capital Territory and Jervis Bay,, nevertheless the Commonwealth in those places may, by ordinance or regulation, in relation to any land which is held on lease from the Crown, make any provision it likes, whether on just terms or not. That puts it crudely.

Senator Spicer:

– That is, for resumption.

Senator McKENNA:

– Yes, I meant to indicate that. This clause with which 1 am dealing applies to the resumption of land held under Crown leases. I point out to the Senate that the great bulk of land in these two areas is so held under leases. There would be some freehold in the Australian Capital Territory at the time when the Territory became the property of the Commonwealth, but thegreat bulk of the land is let under lease, in the case of agricultural leases for 25 years, or, in the case of town and home sites, for 99 years. If the great bulk of the land is so held under Crown leases, then when we deal with the resumption of land under Crown lease we are making a provision that affects the bulk of the land in the Australian Capital Territory and Jervis Bay. The proposed new section that I have quoted purports to say that although the Lands Acquisition Act does apply in the Territory, that is not to affect any ordinance or regulation that may be

Mia de in the Territory regarding the resumption of land held under Crown lease. I point out that that clearly confers upon the administration the power to resume the great bulk of the land in the Territory, without being under the obligation to provide just terms, and in fact expressly negativing that obligation.

Due to the courtesy of the appropriate Ministers I have had the advantage of taking this matter up with the officers of the departments, and with the AttorneyGeneral’s officers. When I first saw that provision I put my view to them, and the Attorney-General has been good enough to indicate that the Government accepts that view, and that the position ought not to be created under the legislation that we are now considering, in which the Commonwealth should be free to provide other than just terms in relation to the great bulk nf land in this Territory if it is resumed. Accordingly, the Senate will

Hnd an amendment which the AttorneyGeneral was good enough to draft, in which I concurred, and which he was generous enough to allow to be circulated in my name. That amendment should now be before honorable senators. It should be the one dealing with the Australian Capital Territory and Jervis Bay.

Senator MARRIOTT:
TASMANIA · LP

– The one we have deals with the Northern Territory.

Senator McKENNA:

– There must have been a mistake in the distribution, but the amendment I shall put to the Senate when that later bill is being dealt with is in exactly similar terms. There is a similar difficulty, and there will be an exactly similar amendment. In view of the acquiesence of the Government in what I have mooted and in what I am putting to the Senate, I do not propose to labour this matter further, other than to draw attention to the provisions of the leases in the Australian Capital Territory. There is no provision for the resumption of leases relating to town sites or home sites, but in relation to grazing and agricultural leases of 25 years, there are really very stringent provisions. I refer to clause 3 on page 8 of the lease that is used for that purpose. It is a very terrifying document and it smacks of the vintage of 1908. It is exceedingly verbose and exceedingly severe in its terms. I do not know whether any of the lawyers in this chamber have had a look at it, but [ make the comment to the appropriate Minister that he should consider redrafting this lease from the point of view of both brevity and clarity.

Senator Spicer:

– The Leader of the Opposition does not commend it as a precedent?

Senator McKENNA:

– No. The clause which provides for resumption relating to 25-year agricultural and grazing leases reads -

  1. Unit if at any time during the continuance of the tenancy hereby created the whole or any portion or portions of the said land shall be required by the Commonwealth for the purposes of roads or railways or for any defence Commonwealth or Government purpose or any purpose incidental to the development expansion or beautification of the city of Canberra or for any other public purpose whatsoever

All that, I suggest, could have been expressed in the words, “ If the land is required for a Commonwealth purpose “. It really boils down to that. That is the preamble before we get to the requisition - the Commonwealth or the Minister on behalf of the Commonwealth may by notice in writing served on the lessee withdraw the whole or any such portion or portions of the said land from this lease provided that the rent to be paid for the portion or portions that are not withdrawn shall be reduced proportionately;

  1. That in the event of the whole or any portion or portions of the said land being withdrawn from this lease as in the last preceding sub-clause provided the lessee shall not be entitled to any compensation in respect of the land withdrawn or except in subclause (d) of clause 2 of this lease provided in respect of any fixture erection or improvement on the land withdrawn ;

Under the lease itself, being a matter of contract, there is a negativing of the right to compensation in respect of deprivation of the land. I should like to read to the Senate what the sub-clause referred to indicates in the way of compensation for improvements. Sub-clause (/) on page 7 of this lease reads -

That if any land is withdrawn from this lease as in sub-clause (c) of clause 3 of this lease provided the Lessee may but it shall not be obligatory upon him so to do upon such withdrawal ur within seven days thereafter remove from the land so withdrawn all fixtures erections and improvements thereon (other than fixtures erections or improvements affixed erected set up or effected pursuant to a covenant by the Lessee or any prior Lessee in this or a prior lease to affix erect set up or effect the same) which were or shall have been affixed erected set up or effected-

Honorable senators will see what I mean about the multiplicity of verbiage - by the Lessee or any prior Lessee of the said land wholly at the expense of the Lessee or such prior Lessee and for which the Commonwealth lias not prior to the commencement of this lease paid and is not pursuant to the provisions of sub-clause [d) of this clause liable to pay compensation.

Listen to the proviso -

Provided that the Lessee will pay to the Commonwealth on demand any expense that may be incurred by the Commonwealth in making good any damage that may be caused to the land hereby leased or any erection thereon through any fixture erection or improvement being removed in pursuance of this sub-clause:

Let me boil it down for the Senate. In short, in this type of lease operating in the Australian Capital Territory the Commonwealth, by agreement under this lease or contract - and I should imagine one could not get a lease unless one signed this form - may at any moment walk in and take the land back. The strict law operating in the Australian Capital Territory is that a person is to be paid on 1908 values, but this document negatives the payment of any compensation at all in respect of the land.

Senator Spicer:

– Deprivation of the land.

Senator McKENNA:

– It completely takes the land from the lessee but with the distinction that the lessee agrees to its being taken from him.

Senator Spicer:

– It is a term of the lease.

Senator McKENNA:

– I would suggest it is awfully coercive when one gets no lease unless he signs this document, and there is uo compensation at all in respect of the land once it is taken from the lessee. There is a very generous provision that once the land is taken from him he has seven days in which to remove his fixtures. 1 1 is not obligatory upon the lessee to take them away. It very kindly says he does not have to, but he has seven days in which to remove them and if he does any damage in taking them away he has to make that good to the Commonwealth. Need I argue any further to the Senate that somebody ought to have a good look at this lease from the viewpoint of drafting, simplicity and clarity; and, secondly, as I said earlier, from the viewpoint of providing something far more just.

Senator Hannaford:

– I was thinking of buying a farm in Canberra, but now I will not.

Senator McKENNA:

– I have come to the conclusion after reading this document that so far as rural areas are concerned people blithely enter into these agreements in the belief that Canberra has been well settled and its development determined for many years. They are confident that the=e classes will not he invoked and that they will iW V deprived nf their land. When one looks at some of the prices that are realised on the sales of leases in the Australian Capital Territory one comes to the conclusion that there must be a lot of trusting people who are confident that these clauses will not be invoked.

Senator Kendall:

– They do not read them.

Senator McKENNA:

– I think the honorable senator is right when he says that the clauses are not even read. Theprospective lessee signs the document, and trusts in the goodness of the Almighty and his luck. That is the position in. relation to the rural or agricultural leases. In relation to the town leases - 99-year leases - there is no provision in the lease itself for resumption. The matter rest;E at large under an ordinance which confers the most complete power, if I remember rightly, upon the Commonwealth to resume. I refer now to item 24 of the leases regulations, which provides -

  1. (1) The Minister, by notice in writing to the lessee, may resume any portion of the land which is required for any public purposes of the Commonwealth:

Provided however that should the lease be for a term greater than five years a notification of such resumption shall be published in the Gazette.

Here is the provision about compensation -

  1. The Commonwealth may pay compensation in respect of any improvements effected by the Lessee on the land resumed in pursuance of the last preceding sub-regulation:
Senator Spicer:

– That applies only to rural land.

Senator McKENNA:

– It is not so expressed.

Senator Spicer:

– I am told the city area leases ordinance covers town leases.

Senator McKENNA:

– On looking at the ordinance I am rather surprised to find that the regulation-making power contains no specific power for resumption at all. I think I am correct in that. There is a general omnibus regulationmaking power and then a number of items are specified to which the power may be directed. But those particular items do not include the resumption of land.

Sitting suspended from, 545 to 8 p.m.

Senator McKENNA:

– Just prior to the suspension of the sitting, I was referring to the ordinances and regulations made under the Seat of Government (Administration) Act, and my remarks applied to agricultural leases in the Australian Capital Territory, which are for the term of 25 years only as against a term of 99 years for the leases of town and home sites. Another point of distinction is that whereas the regulations and ordinances relating to rural leases in the Territory mention resumptions of those leases, there is no provision in the ordinances, or in the leases relating to town and home sites, for probable resumption. Apparently, it is not contemplated that the Commonwealth will need to resume home and business sites. It seems that they are in areas that have been predetermined, and the areas are not likely to be disturbed for Commonwealth purposes.

The whole matter indicates that there should be a complete review of the rural leases, in the ordinances, in the regulations and in the leases themselves. The ordinances dealing with agricultural leases contain no provision whatsoever for resumptions,, yet the regulations deal particularly with that matter. It seems that that particular provision in the regulations is ultra vires the ordinances. That is apparently the view of the Government, because in one of the clauses of the bill now before the Senate there is a provision to validate all that has been done under the ordinances and the regulations. By and large, no government has anything to be proud of regarding the state in which the ordinances, the regulations and the question of resumptions in the Territory generally remain.

In the committee stages of this measure I propose to move to the effect that, except where there is. an agreement in a lease between the Commonwealth and the lessee to provide for terms and resumptions - which is a matter of agreement between the two. parties - we should write into the. bill a mandatory requirement that just terms shall be given in the event of a resumption. I have discussed this matter with officers of the Department of the Interior, and with the Attorney-General. Those authorities have acknowledged the need for an amendment of the character that I propose to’ move, and have been good enough to collaborate with me in drawing up an amendment which is mutually satisfactory to us. The Opposition supports the bill, subject to the moving, in the committee stages, of the amendment that 1 have indicated.

Question resolved in the affirmative.

Bill read a second time.

In committee:

The bill.

Senator McKENNA (TasmaniaLeader of the Opposition) [S.5j. - 1 refer to proposed new section 7a. in clause 5, which reads, in part - 7a. Thu application of the Lands Acquis! tion Act 1955 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) for or in relation to the resumption of land held under lease* granted by or on behalf of the Crown. and I move -

That, after the words “ the Crown ‘, thi’ following words be added : - “ in accordant with the provisions of those leases or other wise on just terms.”.

I have already addressed an argument to the Senate in support of the amendment, and I do not propose to elaborate on that argument at this stage, unless any honorable senator would like me to clarify any particular point.

Senator Vincent:

– If the provisions of the leases are obviously inequitable, why should they be mentioned in the amendment ?

Senator McKENNA:

– In fact there is an agreement between the Commonwealth and the lessees, and it is not a light, matter to disrupt a contract. I am not proposing, nor is it appropriate in making amendments to the bill, to take any action that would disrupt the ordinance under which the leases were made, or to disrupt the regulations and the form of the leases used under those regulations.

Senator Wright:

– Does the honorable senator consider that a re-entry under that lease would be an exercise of the provisions of this bill?

Senator McKENNA:

– No, it would not. lt. purports to preserve all rights to all parties under the existing leases. This is not the proper place to break into a contract between parties. I believe that the whole matter of the leases in the Australian Capital Territory that have been made under the ordinances should be reviewed. I gave to the Senate examples of the enormous prolixity of the language in the leases, and a description of their provisions and how adverse they are to a lessee. Indeed, I have no hesitation in saying that they are unfair. I suggest that there should be at least a provision in the lease that if the whole oi’ any portion of the land leased is resumed, the lessee should have the option to require the Commonwealth to - take over the improvements at a value to be determined on just terms. That should certainly be written into the leases, and I. believe that after the debate has concluded these leases will not long remain as they are. The leases are due for review and should have written into them a. provision, or provisions, that will ensure that if resumption takes place it shall take place only on just terms - the sort of terms that this Parliament is in process of making applicable to land outside the Territories.

It is not a true answer to my argument to say that the parties have agreed to the leases, because the lessees would not be given leases unless they accepted the present form of agreement. Indeed, I suggest that there are very few lessees in the Territory who have read their leases or understood the import of them. I venture to say that the great majority of the lessees, if they attempted to read their leases, would be asleep before they had got half way through them. Land in the rural and agricultural areas of the Australian Capital Territory is not likely to be required by Commonwealth authorities, because the shape of the city has been determined many years in advance. Therefore, the people who have taken the leases have a strong expectation that their tenancies will not be disturbed, despite what is in the agreement, and despite the enormous power of confiscation that remains vested in the Commonwealth. I suggest that this is not a. proper place to adjust the contract between the two parties. That is a matteroutside the bill altogether. I propose only to allow the leases to remain pending:the consideration that I hope will takeplace, and also to ensure that resumptionsshall take place upon just terms.

Senator KENNELLY (Victoria) [S.11J. - I take it that the amendmentmoved by the Leader of the Opposition (Senator McKenna) has relation to new leases that may be granted. In the caseof a lease, for a term of 25 years, containing a provision that the Commonwealth may resume the land at any time,. I believe that fair compensation should be paid if the Commonwealth resumes the land before the expiry of 25 years. That compensation should have relation.. to the length of time by which the lease is cut short of the full 25 years. I realize that if a person has a lease for- 25 years, and the lease runs its full term, the lessee obtains no compensation forany improvements he has effected. I understand that under the legislation in force in one of the States, if a building iserect,ed ou Crown land for which a lease - has been granted, it must run its term, but there are other instances of Crown lands being let on the basis of a permissive occupancy, that is, for a term of a month, or perhaps three or six; months–

Senator Spicer:

– In some cases, permissive occupancy is continued for years.

Senator KENNELLY:

– I am speaking of eases with which I am acquainted, where the permissive occupancy isgenerally for one month at a time, because the rent is paid on a monthly basis. If, for some reason, the occupier of the land desires to leave it, or if any buildings on it cannot be used for thepurposes for which they were erected, those buildings automatically become the property of the Crown. That is the position in relation to a large number of” factories on the south side of the river Yarra opposite Flinders-street stationMelbourne, and I take it that the position is the same in the Australian Capital’ Territory. I believe that if a person has a lease for 25 years, he is entitled toerect whatever buildings he desires to-* erect on that land, because he knows full well that at the end of the term of” the lease those buildings will revert to the Crown. If, however, the Commonwealth, for some reason, desires to resume either the whole or a portion of that area before the 25 years’ term has expired, the lessee should be compensated for any building he has erected on the land. I trust that the lease will stand as suggested by the Leader of the Opposition. I marvel at the department allowing such a lease to be printed and submitted to the people. I hope that the other point that I have mentioned will be rectified to cover those who desire new leases, or a renewal of their leases when they expire.

Amendment agreed to.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.

Bill read a third time.

page 407

NORTHERN TERRITORY (ADMINISTRATION) BILL 1955

Second Reading

Debate resumed from the 7th September (vide page 29), on motion by Senator McLeay -

That the bill be now read a second time.

Senator McKENNA:
Leader of the Opposition · Tasmania

– The bill now before the Senate deals with the acquisition of land in the Northern Territory, and is a twin of the bill relating to the acquisition of land in the Australian Capital Territory with which the Senate has just dealt, and consequently much of what I said on the earlier bill is applicable also to this measure. There is, however, less legislation operative in the Northern Territory. Section 9 of the principal act, which this bill is to repeal, provides that the Lands Acquisition Act shall apply to land in the Northern Territory, but that in determining compensation for land resumed, “ the value of that land shall be taken not to exceed the unimproved value of the land, or the interest therein of the -owner, at the date of the passing of this -act “, which is a date in 1910. It is an act which is of ancient vintage and has long been due for an overhaul. The act has been disregarded by the administration ; I am informed that resumptions have taken place, not on the basis of the statute, which is mandatory, but on the basis of something as near as the department can get to just terms. As an ethical matter, one cannot quarrel with the action taken by the department in deviating from the words of the statute, but it is a bad thing when practice and the statute are so far apart. The opportunity is now being taken to adjust that matter, and the Lands Acquisition Act will, in due course, apply in the Northern Territory. As the bulk of the land there is leased, we run into the same difficulty in this bill as we encountered in the earlier measure. If honorable senators will refer to clause 3 (2.) they will find that there is a similar provision. The operation of ordinances and regulations in relation to crown leases which are resumed in the Territory shall carry on, and the application of the Lands Acquisition Act is negatived concerning that. The principle of “ just terms “ which we have sought to apply throughout the whole of Australis should not be denied in relation to resumptions of land in the Northern Territory. The principle has been determined, first of all, by our Constitution in relation to the whole of Australia, apart from the territories. It is a. matter of justice. The principle is well defined both in the Land? Acquisition Act and by the High Court. At the appropriate stage, I propose to move an amendment similar to that which I moved in relation to the Australian Capital Territory. My arguments in itfavour are identical.

Question resolved in the affirmative.

Bill read a second time.

In committee:

The bill.

Senator McKENNA (Tasmania - Leader of the Opposition) [8.22J. - 1 refer to clause 3, which reads, in part - (1.) Section nine of the Northern Territory (Administration) Act 1910-1953 is repealed and the following section .inserted in its stead: - “ (2.) The application of the Lands Acquisition Act 1955 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory ( including an Ordinance or other law made before the commencement of this section ) for or in relation to the resumption of land held under leases granted by or on behalf of the Crown.”. and I move -

That, in sub-clause (2.), after the words “ the Crown “, the following words be added: - “ in accordance with the provisions of those leases or otherwise on just terms.”.

As I have already, during the discussion of the previousbill, addressed an argument to the committee on this matter, I do not propose to repeat it at this stage.

Senator KENNELLY:
Victoria

– During his brief remarks at the secondreading stage, the Leader of the Opposition (Senator McKenna) said that, in recent years, the department had not operated in accordance with the act in relation to lands leased in the Northern Territory. If that is so, an amendment should be inserted in this hill to validate any action taken by the department not in accordance with the statute. Although it may have acted in accordance with moral justice by reasoning that it was not fair to put a 1910 price on land leased in 1950, I ask the Minister whether it is not proper to make provision in this bill to validate what was done?

Senator SPICER:
Attorney - General · Victoria · LP

– It is clear that even if too much compensation were paid the validity of any acquisition is not affected. Consequently, there is no need to insert an amendment to validate, retrospectively, any acquisition. Opinions may vary as to the value of a piece of land to-day, as compared with 1911. Commonwealth money spent in this way has been spent in accordance with parliamentary appropriations, and there is no need to put into legal form any action that might otherwise be regarded as invalid.

Senator WRIGHT:
Tasmania

– The query raised by Senator Kennelly may be answered by pointing out that the Constitution would override such an outmoded provision as that in the act requiring compensation to be assessed as at 1910.

Senator KENNELLY:
Victoria

– I am not quarrelling with the reply of the Attorney-General (Senator Spicer), although, candidly, it was rather thin. I am more impressed with the suggestion of Senator Wright. But once an act is in operation its provisions should be carried out by the departmen tal officers administering it. If, in this case, certain land is leased and the act provides that the price must be somewhere in conformity with the 1910 value and that is now outmoded, surely the Minister must see the wisdom of amending the act to bring it up to date. If this sort of practice can happen in one small matter it can happen in others. I am not doubting the honesty of the officers administering this act, but if our laws are outmoded it is only right that they should be brought up to date, and that can be done without much trouble.

Senator Spicer:

– This Government is the first in 40 years that has been prepared to bring this act up to date.

Senator KENNELLY:

– I did not rise to make cheap political capital out of this matter and I regret that the Attorney-General should descend to doing so. I am only asking that people be protected.

Amendment agreed to.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.

Bill read a third time.

page 408

LANDS ACQUISITION BILL 1955

In committee: Consideration resumed (vide page 401).

Senator SPICER:
AttorneyGeneral · Victoria · LP

. - I have moved that consideration of clause 4 be postponed until after consideration of proposed new clauses 24a and 24b, which have been proposed by Senator Wright. The purpose of that was to enable us to deal with the real substance of Senator Wright’s amendments in the substantial terms in which they are moved, rather than to consider them under some consequential amendments which would be necessary if his main proposals were adopted.

Question resolved in the affirmative.

Clause 5 (Interpretation).

Senator SPICER:
AttorneyGeneral · Victoria · LP

– I propose to move that consideration of clause 5 be postponed until after consideration of proposed new clauses 8a and 8b, to be moved by Senator Wright, for the same reason that I moved for the postponement of clause 4. I

Senator WRight:

– Why not deal with clauses 6, 7 and 8 as well? I wish to have something to say on clause 6, consequential on clause 5.

Senator SPICER:

– I am prepared to accede to the honorable senator’s request.

Motion (by Senator Spicer) agreed to -

That consideration of clauses 5, 6, 7 and 8 be postponed until after consideration of proposed new clauses 8a and 8b.

New clause 8a.

Senator WRIGHT:
Tasmania

. I move -

That, after clause 8, the following new clause be inserted in Division 3 : - “8a. - (1.) The Minister shall not recommend to the Governor-General the acquisition by the Commonwealth of land by compulsory process unless he has first caused to be served upon each of the owners of the laud, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale to the Commonwealth of the interest of that person in the land. “ (2.) Where service on an owner cannot be effected under the last preceding sub-section in accordance with section sixty-three of this Act, service on that owner may be effected by causing a copy of the notice to treat to be published in a newspaper circulating in the district in which the land is situated and -

if the land is occupied - leaving a copy of the notice to treat with the occupier; or

if the land is not occupied - affixing, if practicable, a copy of the notice to treat to a conspicuous part of the land, and the notice to treat shall be deemed to have been so served on the day on which the copy is so published, is so left with the occupier or is so affixed, whichever last occurs. “ (3.) A person served with a notice to treat in respect of land may, not later than fourteen days after the service of the notice, furnish to the Minister particulars of -

the interest claimed by him in the land;

b ) the amount for which he is agreeable to sell to the Commonwealth his interest in the land; and

the name and address of any other person known to him to have an interest in the land and the nature of that interest. “ (5.) The Minister may, by notice in writing to a person served with a notice to treat, withdraw the notice to treat. “ (6.) Where the owner of an interest in this section, suffers loss by reason of the notice to treat in respect of the land having been given and withdrawn, the Commonwealth is land, being a person who has furnished the particulars referred to in sub-section (3.) of liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action by the owner against the Commonwealth in a court of competent jurisdiction. “ (7.) In the last preceding sub-section, court of competent jurisdiction ‘ has the same meaning as in section eighteen of this Act “.

I am very much indebted to the Attorney-General (Senator Spicer) for his remarks and observations on this clause, and I want to occupy the time of the committee with a very dispassionate discussion of the arguments presented by him. I repeat that this clause simply requires that, as a preliminary to the proclamation of acquisition, the Minister, before recommending the actual acquisition, should give notice to the owner. It amazes me to think that the most excellent intellect in the chamber could invent an excuse to evade the force of such a simple statement as that. That the owner should be entitled to be notified of the Minister’s intention to acquire the land seems to me to be common courtesy to be accorded even by sovereigns.

As I pointed out this afternoon, when Parliament, in implementation of the great campaign of expansion during the industrial revolution of the last century, accorded specific legislative powers to public utilities to acquire land, it did so by a process, the beginning of which, as the Attorney-General emphasized in his speech, was a notice to treat. That notice was not of 28 days’ duration, but of” six months’ duration. I have abridged it to 28 days in order to eliminate any possible answer on the ground of unreasonableness. Although the learned Attorney-General began by making an assertion that the difference between the Crown and a public utility was obvious, at the conclusion of his argument he made the contrary assertion that they were the same thing. I noted him as saying that he did not see any great difference between their position and our own. I submit, when the Government is acquiring land, from the point of view of the land-owner and the public interest, it is essentially the same proposition. If it is a railway company in England, it can give the owner notice of its intention to acquire, and so, too, can the Australian Government give notice.

The next point made by the AttorneyGeneral concerned the composition of the board. He said that this notice to treat was associated with the board of inquiry mentioned in the other proposed subclause. I point out. that the two are dissociated.

I ask the committee to accept first the simple requirement that a Minister should give 28 days’ notice to treat. Whether it accepts the other provision that during that period of 28 days the owner should have the right to insist upon a public inquiry, is an entirely different matter. Therefore, even if there were validity in the contention of the Attorney-General that the board of inquiry expressed in that provision is not so apt, as a chamber of the Parliament would be, to consider this position, then I say that that is irrelevant, because the two provisions are not necessarily associated. With regard to the broad subject-matter - a piece of land - a board of inquiry is infinitely more capable of sensing the interests of the public in connexion with an acquisi-tion than is a chamber assembled in the isolation of Canberra.

I proceed, with the utmost brevity of which I am capable, to the next argument of the Attorney-General in connexion with which he said that, in any case, the land-owner had his remedy. Suppose the Minister arbitrarily and without notice - in the dead of night, so to speak - signed his proclamation and gazetted it. The land-owner would learn of it, and he might approach a politician in the neighbourhood.

Senator Spicer:

– He gets a notice.

Senator WRIGHT:

– By law?

Senator Spicer:

– It is provided in inn bill.

Senator WRIGHT:

– He gets a notice that the land has been acquired, and I direct attention to the words “ has been acquired “. A politician, possibly a supporter of the Government, might have the matter referred to him, and he would then be met with the situation that the Government had taken executive action. The responsibility would thus be placed upon the individual member of the Parliament of bucking the Government in respect of a piece of executive administration. Thai is not the function of an individual member of this chamber, nor is it a proper function of a House of the Parliament, except in the matter of a vital principle. In such a case, I shall never be backward in supporting a move, even to buck sh,Government. but what a problem of responsibility would be posed for an individual member of the Parliament if he were asked to act in the case of an individual transaction of an executive nature upon which the Government had declared itself ready to stand by the Minister. Therefore, I urge that it is quite proper that notice should be given before acquisition is made as part of the preliminary procedure, so that the land-owner can then alert his elected representative of the Parliament and get busy with representations to the Minister before the Minister’s decision is committed to an administrative act.

The Attorney-General then invoked the aid of clause 11 of the bill, because he said the power of the Houses of Parliament could be used to void a proclamation. I propose to adopt the argument that was advanced impromptu by the Leader of the Opposition (Senator McKenna) on the basis of sub-clause (4.) of clause 11. If honorable senators study that subclause, they will see to what narrow limits we have reduced our power as a House of Parliament to cancel one of these proclamations because our power is denied to us - where moneys have been appropriated by the Parliament for or towards . . .

Not the acquisition of the land, but for or towards - the purpose for which the land was acquired;

So if we pass a vote of £1,000,000 in the name of defence to construct the Snowy Mountains project, the Minister may select the required area. Whose farm would he choose? It matters not. That is irrelevant. Suppose we take, as another example, the aluminium project. Part of the plant is located at Bell Bay in Tasmania, and let us suppose that the Australian Aluminium Production Commission then looks around for a site for the reduction plant which is part of the project. It considers sites in New South Wales and elsewhere. It would have power to acquire any of those sites. Once proclamations had been issued, by reason of the appropriation of money by the Parliament for the purpose for which the land was to be acquired, we would have no power as a chamber, under clause 11, to cancel that proclamation, f invite honorable senators to consider the next portion of sub-clause (4.) of clause 11 which states - where the Governor-General has authorized the construction or carrying out of the work or undertaking in respect of which the land was acquired and moneys are legally available for lim purpose;

Suppose we passed a vote of £100,000 for the erection of an arbitration court. Under this power the Attorney-General is gi ven carte blanche to acquire any site for the arbitration court and under clause 11, the Parliament has no power to cancel the proclamation. Therefore, I ask the Attorney-General to consider whether, on an examination of these matters, the arguments that have been advanced are valid. I submit that they have no validity, and a simple’ proposition such as that expressed in this amendment permits of no answer.

The other matter advanced by the Attorney-General was that in war-time we might wish to make an acquisition instanter. I propose to deal with the proposition that might arise in war-time without overlooking the application of the argument to peace-time. ‘Should the misfortune of war be inflicted upon us, it would be common, as it has been in the past, to pass national security legislation giving the Government the power to make regulations under which it could do anything. In such cases, it must, of necessity, comply with the constitutional requirement regarding acquisition on just terms. In war-time, therefore, we can trust to our own thoughtfulness to provide ourselves with power to act instantly, but we have not a statute like this providing for peace-time. As to acquisition for defence in peace-time, if the Minister just announces his intention to acquire for a public purpose, he is complying with this section and does not have to announce the particular purpose of defence for which he is going to make the acquisition. He is not required to disclose his secrets at all under this section. I can deal further with this argument when the committee is considering the next amendment, but this one only requires that the Minister should notify the owner 28 days before that he intends to acquire land for a public Commonwealth purpose. So that I contend that the argument is ill founded. I go further, and say that if that is a valid argument, and if the Minister should not be delayed in peace-time, because of the importance of the acquisition, even for a period of 28 days, I would be quite prepared to include a provision to th* effect that the section shall not apply to any case in which the Minister certifies that there are special reasons why it should not so apply. That would place specifically on the Minister the responsibility for giving a certificate to Parliament that there are special reasons associated with the acquisition which he thinks justify him in not giving what we, as a Parliament, declare is the regular notice of 2S days to the land-owner, the provision for such notice having been made in the interest of justice to the land-owner and in the public interest-

Senator McKENNA:
TasmaniaLeader of the Opposition

– Before the Attorney-General (Senator Spicer) replies, if he proposes to do so, I should like to make one or two comments, particularly in regard to the proposed new clause 8a. Senator Wright’s amendment seeks that notice be given before there is any compulsory acquisition, that certain procedures should take place and certain times elapse. I put it to the Attorney-General that in practice that is exactly what happens in the great majority of cases. Probably in 90 per cent, of cases a site is pegged out by departmental officers, they search the title, they go and talk to the owner, and negotiations proceed for quite a considerable time. If that is the practice in 90 per cent, of the cases, I ask the Attorney-General what is the objection to crystallizing that procedure in proper form in an act. That appears to be the practice at present, and it is certainly my experience that that is the practice, so why should we not write into the act what is the practice at present?

The second point that I wish to mention, and the only one that concerns me in relation to this matter, was dealt with by Senator Wright, not in the amendment, but in his comments upon it. I feel, like the Attorney-General, that a situation might well arise in which the Commonwealth must act quickly and without delay. I can imagine a number of situations in which that could happen, even in peace-time. The AttorneyGeneral indicated himself that there might be situations of that nature. I should be happy if he would indicate the type of case that he has in mind that could arise. As to defence, I can see that it may be necessary to resume land quickly, not necessarily when we are meeting the enemy or setting out to attack the enemy, but in the interests of defence preparations. A situation may develop in which it may be necessary to enter, to occupy, to lease, or to acquire on a permanent basis, and in such a situation there may not be time to seek people out and give 28 days5 notice. Senator Wright suggests that if the Minister certifies that for special reasons it is undesirable that there should be delay, he would be prepared to include a clause in those terms. I am not wedded to his exact words, and I do not think the honorable senator is at present. A qualifying provision of that nature or to that effect would amply satisfy me.

Reverting to the matter of defence preparations, the Attorney-General will recall the Capital Issues case under, I think, the Defence Preparations Act, in which the High Court indicated that there was a vast scope for the exercise of extreme defence powers, even in a period of peace, in the name of defence preparations. As regards Senator Wright’s suggestion that the Minister furnish a certi ficate in cases where it is not advisable to give the usual notice, I suggest that the honorable senator might perhaps confine his qualifications to defence preparations, matters connected with defence, or other circumstances which the Attorney-General certifies that it would not be in the public interest to disclose. I merely make that suggestion without putting it in technical form.

Those are the three lines of thought that run through my mind in regard to the amendment. Having made those remarks, I express my personal view when I say that I would be prepared to support the amendment. Unfortunately, I cannot speak for all honorable senators on this side, because there has been no opportunity for consultation.

Senator GORTON:
Victoria

.- We have heard in this debate, so far, statements made by people who are well versed in the law. I would like to approach the matter from the point of view of a layman who knows not all the legal ramifications and implications of this amendment. I do approach the matter as one who believes that it is our duty in this Parliament to see that we give to the citizens of this country every possible protection and advantage consistent with the national interest. Therefore, I am immediately attracted to a proposal such as that of Senator Wright, which requires that a man be told that his property is going to be acquired, rather than be told, as is the case at present, that his property has been acquired. Because it does give a man that advantage, I am disposed to favour this amendment. It has been suggested by the Attorney-General (Senator Spicer) that this advantage is really more apparent than real, that the indication to a man that his property is going to be acquired may not, in the long run, prevent it from being acquired, and that there is, therefore, no really significant advantage. But I suggest that there may be a significant advantage. The notification that his property is going to be acquired gives the owner the opportunity, during four weeks, to offer objections to the Minister, through his parliamentary representative, which is the channel which the AttorneyGeneral suggested he should use. It gives him the opportunity to plead his case if he feels that he has been subjected to some injustice. While he is doing all those things he is allowed to remain in possession of his land instead of being, in effect, evicted, as is the case at present.

Senator Spicer:

– Oh, no!

Senator GORTON:

– But, Mr-. Chairman, the Attorney-General, in reply to an interjection of mine, said that -when that notice was published in the Gazette the Commonwealth could enter upon that land at once. I said that I did not know the legal implications, but it seems to me, as a layman, to be tantamount to eviction.

Senator Spicer:

– Legal title has passed.

Senator Wright:

– And he becomes a tenant-at-will of the Commonwealth.

Senator GORTON:

– His legal title has passed before he begins to plead his case publicly or to make use of such channels as are open to him. I think it better that his legal title should remain for four weeks in his possession while he makes his objections. Indeed, it seemed to me that the only significant objection which the Attorney-General put to this chamber was that there might, in some unspecified instances which I cannot imagine, apart from war, be occasions upon which a delay of four weeks would dangerously impede the Commonwealth in carrying out some action that it desired to carry out. I suppose that if one scratched the bottom of one’s memory or imagination one could think of some case in which that could happen, but it is surely a bad principle to make a law affecting all the people of this Commonwealth merely because, in some tenuous case, there might possibly be a chance that the Commonwealth would be held up for four weeks. So I find myself, from the point of view of a layman, endeavouring to protect the citizens of Australia. In the face of the arguments which have so far been put up against this amendment, unless they are substantially buttressed, I am committed to support the amendment.

Senator VINCENT:
Western Australia

– I congratulate Senator Wright on the very thoughtful amendment he has proposed. I earnestly ask the Attorney-General (Senator Spicer) to give serious consideration to accepting it in the form proposed by Senator Wright in his final remarks. I am not going to canvass the arguments put forward by Senator Wright, or by the Attorney-General in rebuttal, except to say that I was under the impression that the Attorney-General in discussing this matter this afternoon said, in effect, that the present provision had been in existence for some 50 years and had worked very well, and, therefore, no procedural change was warranted. With great respect I admit that the procedure has been in existence for some 50 years, but I join issue with him when he says that it has worked well. I deny that and suggest that many lawyers will quite freely offer the suggestion to him that this procedure has not worked well; that it has worked anything but well. We should put ourselves in the shoes of a man whose land has been taken. The procedure is to publish a notification in the Gazette that land is being taken, but the courtesy is not extended to the owner of informing him of the decision. I do not agree that, that is good procedure.

Senator Henty:

– How many people would see the Government Gazette11.

Senator VINCENT:

– I doubt whether many would, certainly not people who own land. In my limited experience of this particular law I have seen consternation and frustration exhibited by people who have learned indirectly that their land has been resumed. They have been presented with a fait accompli. I suggest the Attorney-General has been wrongly advised when he says that for some 50 years this procedure has worked well. On the contrary, it has not worked well at all; and that is why Senator Wright has moved this amendment.

The learned attorney is making another rather fatal mistake. This is merely a notice to treat and he is confusing it with a re-possession order. This is purely the first step in what could quite well be a very amicable arrangement between the Crown and the owner for the purchase of the land. It is in every respect complementary to the amendment which the Attorney-General has agreed to accept in respect of arbitration proceedings. This notice to treat is complementary to that arbitration clause which he has already agreed to accept. I cannot see how he can be consistent if, on the one hand, he says, “ We will agree with the arbitration amendment “, and, on the other hand, he says, “ We will not agree with this proposed amendment in respect of a notice to treat “.

Finally, the Attorney-General joined issue with Senator Wright in connexion with the procedure in Great Britain. He was quite right in saying that in Great Britain a notice to treat is, in effect, a resumption notice, but he then went on to argue - illogically, I suggest - that in Australia a notice to treat would not be a very practical thing if it concerned the taking of land for defence purposes. In answer to that I say that in Great Britain land is taken for defence purposes by a notice to treat.

Senator Spicer:

– Not under that act.

Senator VINCENT:

– It is taken by a notice to treat in exactly the same way as is now proposed in Senator Wright’s amendment

Senator HENTY:
Tasmania

.- As a layman, there are two points on which I should like the Attorney-General (Senator Spicer) to give me some information. What happens in a case in which notice is given to a landowner that the Government is going to acquire his land, if during that four weeks, he takes steps to alter the land materially? Is it in the public or national interest to give four weeks’ notice of intention to acquire when, in fact, a landowner during that four weeks can so alter the whole value of his property that it will cost the nation a great deal more money or, perhaps, render the property valueless for the purpose for which it is being acquired ? I should like some information on that point. Secondly, in connexion with a matter raised by Senator Gorton, there are circumstances in which the Crown might be called upon to acquire land immediately. An illustration of that is the case of floods when the Government may desire to acquire a property immediately for diversion purposes in order to prevent other properties from being damaged. Hilder this amendment would it be necessary to give four weeks’ notice in such circumstances?

Senator Sheehan:

– That is ridiculous.

Senator HENTY:

– I am approaching this matter as a layman. It would seem there are a lot more lawyers on the other side than I thought there were. There may well be properties which call for immediate acquisition. I should like the Attorney-General, when he is replying, to deal with the points I have raised.

Senator LAUGHT:
South Australia

– I urge the Attorney-General (Senator Spicer) to give consideration to Senator Wright’s amendment, particularly now that Senator Wright has, I understand, intimated that he will seek to add certain additional words to his amendment. The Government should ensure by this legislation that the Minister of the day will act justly and also appear to act justly. The Constitution definitely provides that the Parliament can make laws with relation to the acquisition of property, but all acquisitions must be on just terms. I believe that it is in the spirit of the Constitution that the terms should be completely just, and should also appear to be just. Common courtesy demands the type of notice that Senator Wright has envisaged in his amendment. As the Leader of the Opposition (Senator McKenna) has said, such notice is always given of proposed administrative acts by a well-run government department. I. urge that the Attorney-General shall not withstand the suggestion to incorporate in the legislation something that happens in normal procedure throughout the length and breadth of the land. That is, that before any legal action is taken, there shall be a preliminary notice of that action. The Government could well consider adopting this amendment.

Senator BYRNE:
QUEENSLAND · ALP; QLP from 1957; DLP from 1968

– I believe that the Attorney-General (Senator Spicer) will need to have very compelling reasons for him to rest on the position that he originally took up in this matter, but no compelling reason in law appears to have been offered in this debate for his action. There may be some compelling reason in practical administration which is determining the attitude of the Government and the Attorney-General. I can see no other justification for their persistence. The Attorney-General owes it to this chamber to state the reason. I have beforeme at present a copy of parallel legislation in Queensland. It is called the Public Works LandResumption Act 1906, and in that legislation the Crown or statutory authorities, within the constitutional powers of the State, are empowered to resume land for stated purposes.

Senator Vincent:

– But not on just terms.

Senator BYRNE:
QUEENSLAND · ALP; QLP from 1957; DLP from 1968

– That may be so, but I am dealing with the machinery for resumption at present. The head-note in the law reports indicates that the section has been taken from a New Zealand act of 1894. Therefore, it is apparent that the procedure detailed in the Queensland legislation has been in operation in New Zealand since 1894. The following procedure is laid down when land is required : -

  1. . the constructing authority shall -

    1. Cause a survey to be made and a plan to be prepared, signed by a duly licensed surveyor as evidence of the accuracy thereof, showing the land required, together with a schedule of the names of the respective owners and occupiers of such land, so far as they can be ascertained ;
    2. Cause a copy of such plan to be deposited in some place in the locality in which such land is situated :

Such plan shall be open to inspection by all persons at all reasonable hours. Any person having custody thereof, and refusing or obstructing such inspection, shall be liable to a penalty not exceeding five pounds;

  1. Cause a notice to be published in the Gazette and in a newspaper circulating in the district, stating the place where such plan, together with a statement of the nature of the works proposed to be constructed and a general description of the land required, is open to inspection.

Such notice shall call upon all persons affected to set forth, in writing, any objections (not having reference to compensation) to the taking of such land, and to send such writing, within thirty days from the first publication of such notice, to the constructing authority;

Such notice shall also appoint a time and place at which any objection may appear before the constructing authority or some person appointed by it, and support the objection by such evidence as the objector thinks fit;

  1. Cause a copy of such notice and description to be served upon the respective owners and occupiers of such land, so far as they can be ascertained.

Therefore, at least in Queensland, and I presume also in New Zealand, ample notice is given to the land-owners as well as complete protection. Consequently, the owners have the opportunity of knowing what is proposed to be done, and of objecting if they so wish. In view of that, and in view of the length of time involved and the success that has attended the operation of such provisions, I believe that the Attorney-General must have very compelling reasons for resisting the obvious desire of this chamber. I suggest that he might put those reasons before us at the earliest opportunity.

Senator ROBERTSON:
Western Australia

.- The remark of the Attorney-General (Senator Spicer) to the effect that the person whose land is required has, for his protection, the title deeds, has brought me to my feet. The case that I intend to deal with occurred in one of the States, but I understand that the land acquisition rules in the States closely follow the Commonwealth laws. In about October, 1954, very large tracts of. land in Western Australia were taken from the people who had established homes and farms on them. They were taken by the Minister for Housing in the Government of Western Australia, and no payment has yet been made for the land. It should also be remembered that the people whose land has been taken, have no recourse to any court of appeal, as the Minister’s word is the last word. When a widow with two children appealed to the Minister about the acquisition of her land, she told him that as she held the title deeds he would not be able to touch it. He said, “ You may tear up the title deeds to the land; they are of no further use to you because the Government can take, and will take, whatever land it requires”. Therefore, it seems to me that the amendment of Senator Wright will afford one way in -which persons whose land has been acquired can he protected. I support the amendment.

Senator O’FLAHERTY:
South Australia

.- During the secondreading debate on this measure, I stated that j[ .could see nothing wrong with -Senator Wright’s .amendment. I still can see mo thing wrong with it, and I therefore support it. However, I hope that the Attorney-General (Senator Spicer) will take notice that Senator Laught stated that not only must the law .be just, but it must also appear to be just. I suggest that there is uo question of appearance with regard to laws. They are either just or unjust, and any suggestion that they should appear just is merely introducing politics into the law. Senator Wright has said that he would raise no objection to a system under which a special certificate is given by the Minister for a specific purpose. I understand that the Attorney-General has said that lie would agree to have the definition cover the arbitration aspect. If honorable senators will study the amendment moved by Senator Wright in clause 6, they will find that it includes the words “between the owner and the Minister, oi-, in the absence of agreement, by action by the owner against the Commonwealth in a court of competent jurisdiction “. I suggest that any decision by .an arbitrator should apply here, as in other parts of the legislation. It is hard for a layman to understand legislation of this kind, but the fact remains that it provides for notice to be given by the Minister before he acquires the land, and not, as Senator Robertson has pointed out, that some ona should walk on the land, and say that the Government owns it, and then go on as if the Government did, in fact, own it. Provision should be made for the giving of notice. The legislation also provides that the owner of the land shall supply certain particulars. If something happens that is not provided for in the agreement, the parties have to fall back on the practice of going to the court, whereas the Attorney-General has suggested that arbitration proceedings should be provided for in order -to arrive at a just settlement. A provision along those lines should be added, so that the arbitration machinery could -be resorted to instead of the owner having to go to the expense of fighting the Government in a court. In my second-reading speech I suggested to the Attorney-General that the -matter should be ‘deferred and given further consideration. I wonder whether, in the meantime, the Attorney-General has given the matter further consideration, and whether any of the amendments will be accepted by him. I think that the matter justifies further consideration being given to it.

Senator SHEEHAN:
Victoria

.- I should like Senator Wright to persist with his original amendment because to me, as a layman, it appears that the qualification which he now proposes to accept will destroy the whole purpose of his amendment. Later in this measure we shall come to a provision empowering the Minister to delegate his authority. If the suggestion mentioned by Senator Wright is accepted, I believe that the Minister will know no more about the special reasons than if no such provision were contained in the bill. What will happen will be that the Ministea’ will delegate powers to some officer of his department, and then that officer may declare that, for some unexpected reason, it is not necessary to give the required notice. That would mean that we would be still in a position that Senator Wright wishes shall no longer exist. I think the original amendment is an admirable one, because it gives protection to the owners of property that is about to be acquired by the Commonwealth for public purposes.

I cannot conceive of events happening to cause such haste as has been spoken of to-night, and necessitating intervention by the Government. Due consideration should be given to these matters, and a longer period than that now contemplated should be provided for before a property is acquired. When hasty decisions are made, there is always the risk of wrong being inflicted on the owner of a property. We know what happened during the war when very junior officers acted in a hurry. According to them, matters were urgent, but later events have shown that there was no hurry. These young men in their violent hurry walked on to properties and put the owners out on the street. They confiscated the owner’s property and machinery, all because they were in a hurry. They said that the nation was in peril, but later it was found that the only panic was in the minds of these officious officers. The same thing will happen if the amendment is qualified in the way proposed. I commend Senator Wright for the excellent case that he has put up to-day. I regard this as one of the best debates that has taken place in this Senate since I became a member. The amendment seeks to protect the rights of the people of this country. The Leader of the Opposition (Senator McKenna) and Senator Wright, who followed him, expressed fine sentiments in the interest of the people. I hope that the amendment will remain without qualification.

Senator ARMSTRONG:
New South Wales

– I agree completely with the amendment moved by Senator Wright. I approach this subject believing that, all the time, the scales are weighted against the individual and the public. When either an individual or the public clashes with the Government, the Government generally wins, and therefore we must give to individuals as much opportunity to obtain justice as lies in the hands of the Parliament to give them. As Senator Sheehan has said, we have had many examples of young men acting in a hurry. Frequently, proposals, even if sent to the Minister, are not studied by him, or if be studies them it is only after the property has been resumed. In many instances great hardship is done to the public. This bill provides an opportunity to bring up to date an act of Parliament that was originally passed in 1906, and has had little alteration in the meantime. The attitude of the Government should be that it is not sufficient for some junior officer in the Attorney-General’s Department to get the idea that it is time the Lands Acquisition Act was brought up to date. I give officers full marks for their interest in these matters, but our attitude should be that we shall make .the legislation that comes before us such that it will not need amendment for ten, or even twenty years. But what happens? When a bil] is brought down in these circumstances, if a member proposes an amend ment, irrespective of whether he is on the Opposition side or the Government side of the House, he is immediately viewed with grave suspicion. He is regarded as a rebel - a terrible word in these days - and his proposition is examined as with a magnifying glass to detect any possible flaws. The Government should encourage every angle of consideration on this legislation so that by the time the bill is through the committee stage it is as near perfect as possible. This is not the first time within the past twelve or eighteen months that the Government has brought into this chamber acts of Parliament that have not been amended for many years, but when logical alterations have been suggested they have been refused. The reason is that departmental officers have not bothered to examine the points covered by the amendments which are the fruit of careful consideration. The amendments proposed this evening by Senator Wright and Senator McKenna are examples, and one of the most important features is that they are in the public interest. No suggestion has been made from the Government side that this amendment for 28 days’ notice is not in the public interest. We are not worthy of being regarded as public men if we do not consider the public interest as a matter of paramount importance.

There always seems a doubt about the wisdom of a Minister accepting an amendment on the floor of the chamber, and I should never criticize a Minister who was frank enough to say that he was not prepared to accept the amendment immediately, but would seek an adjournment for a day or so to enable him to consider it and come to a proper decision. I have seen too many hasty decisions made without regard to justice. Senator Sheehan rightly referred to the actions of junior departmental officials clothed with a little brief authority who have proved to at least one group in Australia - the men on the land - what will happen if they dare to resist. The officials proceed to take most harsh measures.

I remind honorable senators of the attitude of the Government concerning the acquisition of public park lands throughout Australia. The Commonwealth is squatting on public parks in every State of the Commonwealth, and will not vacate them. Possession of them was taken during the war, but it cannot be argued that the Commonwealth has any right to remain. The war ended ten years ago. I cannot imagine any public servant making a move to release these park lands. Ministers and public servants with a direct responsibility for doing so have defended their inaction by saying they are unable to find alternative accommodation. That is not true, and if they really wanted to do the right thing they would vacate or the Minister would direct them to do so.

The whole problem of land acquisition must be dealt with on the basis of protecting the public. The Government has enormous powers in many acts. For example, the Supply and Development Act gives the Minister for Supply and Development wide power to take over land in war-time and in peace-time. If an emergency arises - which would be rare in times of peace - the period of 28 days could mean the difference between the success and failure of a proposition for resumption. I agree wholeheartedly with Senator Sheehan that the 28 days’ notice would give time for reflection, and could be responsible for the prevention of unnecessary action. One of the first jobs of every Minister for “Works and Housing should be to obtain a schedule of the land which has been held by the Government for ten, fifteen, or twenty years, and is not being used for any purpose. It may have been resumed during the war or previously for a purpose which has since been forgotten, and it lies idle in the hands of the Government. No one knows, except perhaps an odd employee in the Department of Works or in the Department of the Interior or in the PostmasterGeneral’s Department, why that land was acquired.

Any proposal to safeguard the publicinterest cannot be lightly refused by the Minister. He must examine it very closely. I agree with Senator Byrne that the Minister will have to advance strong arguments to refute the suggestion that 28 days’ notice will hurt the Government in any way. That notice will give the individual member of the community fairer treatment and a little more chance in the almost hopeless fight in which he will become engaged if the Government moves in to take his property.

Senator SPICER:
AttorneyGeneral · Victoria · LP

– I agree with honorable senators who have expressed the opinion that this debate has been most useful. It is appropriate that this chamber should examine closely the provisions of the present measure, and if it sees ways of improving it to take suitable action. In considering the amendment suggested by Senator Wright, the general principles of the legislation must be kept in view. Senator McKenna directed attention to the fact that in practice, in nine cases our of ten, the department communicates with the owner of land before action is taken for compulsory acquisition. If the owner is prepared to sell at a price which is acceptable to the Crown that ends the matter, and compulsory acquisition is not necessary. The parties are not obliged to agree, but in practice they often do.

Senator Wright:

asked that 28 days’ notice should be given in all cases, and he wanted to have that provision included in the act in an inflexible form. The qualification which he later suggested, making an acquisition subject to a declaration by the Minister in special circumstances, certainly makes his amendment more acceptable. No one can deny that there may yet be circumstances in which the interests of the Commonwealth - which are the interests of the public - could be prejudiced by the requirement that 28 days’ notice must first be given, having regard to the nature of the powers which the Commonwealth exercises. I could imagine that happening in the case of land that was being sought for particular defence purposes. It might be essential to obtain it almost at once because other people are “nibbling” at it to use it for other purposes. The virtue of the existing act, from the point of view of the Commonwealth, is that the legal action of acquisition becomes effective upon the publication in the Government Gazette of an announcement that the acquisition has been made. What is the position in the course of the 28 days, during which notice must be given to the owner under Senator Wright’s amendment? Is the then owner free to sell that land to some one else during the 28 days?

Senator Armstrong:

– No.

Senator SPICER:

– There is nothing in the amendment to indicate that that would not be so. If this is a genuine notice to treat - and this is the test of the matter in the end - and not a first step in acquisition, then the person who gets the notice is perfectly free to deal with that land and sell it to some one else.

Senator Sheehan:

– Who would want to buy it?

Senator SPICER:

– I can imagine circumstances in which a buyer . could be found, and found at a price which might be very prejudicial to the Commonwealth when it came to exercise its compulsory acquisition powers. That does not seem to rae to be a fanciful suggestion at all. We have heard before to-day of one member of a family acting as a dummy for another. That is not unknown in the world of business affairs.

Senator Armstrong:

– That does not affect the price the Government will pay on resumption.

Senator SPICER:

– I should have thought that the fact that there had been a sale of a particular piece of land in the open market within 28 days of its acquisition by the Commonwealth might be some indication of what its value was at that time.

Senator Wright:

– Sir! Really!

Senator SPICER:

– I suggest that these are the kind of things that could happen in the course of 28 days. Honorable senators may treat them all as fanciful if they like, but the virtue of the law, as it stands at present, from the Commonwealth point of view, is that the acquisition becomes effective, if the Commonwealth wishes it so, upon the announcement in the Gazette; and no jiggerypokery by the people who own the land, after that event, can possibly affect the value which attaches to it and which will be ascertained by evidence at the moment that it is acquired. If it be not true that the land cannot be dealt with in this period of 28 days, and while the matter is subject to the board of review, and all the rest of it, then I suggest that there is little difference between Senator Wright’s proposal and the law as it stands to-day.

Senator Sandford:

– The Minister admits that there is a difference, though?

Senator SPICER:

– Let us see what it would amount to in those circumstances. If the effect of the notice to treat is to prevent the owner of the land, from that moment onwards, from having any dealings with his land, then he is in exactly the same position as if he had received a notice and the land had been compulsorily acquired, because a notice to treat is the first step in the inevitable process of compulsory acquisition. In other words, it is precisely the same as a notice to treat in England.

Senator Vincent:

– Except that it need not be a compulsory acquisition in the end.

Senator SPICER:

– It need not be a compulsory acquisition in the end, under the act as it stands at present, in the sense that parties can agree on what the price is to be.

Senator Vincent:

– But there is no notice.

Senator SPICER:

– Under the act as it stands at present, the only difference, on the assumption I am now making, is that instead of the notice being called a notice of compulsory acquisition, it is called a notice to treat.

Senator Gorton:

– And the Commonwealth cannot immediately go on to the land.

Senator SPICER:

– That may well be so, within the 28 days. But I suggest that we follow through the procedure in England from which this is taken. For that purpose, I wish to read the following passage, which appears at page 48 of a book on compulsory purchase and compensation by D. M. Lawrence : -

A notice to treat does not by itself constitute a contract for the sale and purchase of land, but once it has been served it cannot, as a genera] rule, be rescinded, and either owner or acquiring body is in a position to compel the assessment of compensation by the means provided by statute.

Senator Wright:

– This form specifically provides that the Minister may withdraw.

Senator SPICER:

– I appreciate that. I suppose it is possible to rescind a compulsory acquisition notice, so that the same effect could be achieved in that way. However that may be, it is a choice between the two processes, and I do not think there is really very much difference between them.

Senator Kennelly:

– Is there in the act at present a provision concerning power to rescind?

Senator Wright:

– There is, in subclause (5.) of the proposed new clause.

Senator Kennelly:

– Is there no provision in the act which provides the Minister with the right to cancel?

Senator SPICER:

– He can always reconvey the land, if he does not want to go on with the acquisition.

Senator Wright:

– No. He has to dispose of it by public auction, and, as Senator O’Flaherty pointed out this afternoon, he cannot even give a right of pre-emption to the former owner.

Senator Vincent:

– What is wrong with the British practice?

Senator SPICER:

– I am suggesting that Senator Wright is not adopting the British practice. If he is, I suggest it is so little different from the practice we have at present that it is just as well to stick to our own practice. That is about what it boils down to. This system has operated pretty satisfactorily for the last 50 years.

Senator Vincent:

– I do not agree with that.

Senator SPICER:

– We have heard very few complaints about the actual operation of the system. True, if the matter is looked at baldly and coldly, it is a harsh kind of business to compulsorily acquire a man’s land - that is the legal effect of it - by publishing a notice in the Government Gazette, but that is the first step in a process of acquiring the land from him, either by compensation which is agreed between the parties, or by compensation which is settled by a court of law. Its virtue, I suggest - and this is the test which the committee has to apply - as against the advantages to be gained from Senator Wright’s scheme, is that the land vests in the Commonwealth as from the time of the publication of the acquisition notice in the Gazette. That fixes the time when the value’ is to be ascertained. There cannot be any trouble about who was the owner of the land at that time ; the owner is a certainty. He is dealt with, and he then looks for compensation from the Commonwealth, in accordance with the act. Under Senator Wright’s proposals, you give notice to one owner to-day, and in 2S days’ time there may be another owner. Presumably, you then have to start all over again. What happens if, for instance, the owner dies in the course of the 2S days?

Senator Ashley:

– You bury him !

Senator SPICER:

– And, presumably, you then start all over again with another man. In those circumstances, I suggest that no sound reasons have been put forward for departing from the provisions of the act as it stands at present, and, as far as I personally am concerned, I prefer to stick to the bill as it is. If it is a matter of accepting Senator Wright’s amendment, he gets over a good many of the difficulties which I feel about it by the additional proposal, which he has put forward, to provide that, in special circumstances, the Minister could exclude the operation of the clause.

Senator WRIGHT:
Tasmania

– I do not wish to revive the argument on the matter to which the AttorneyGeneral (Senator Spicer) has referred. I point out, however, that these imaginary difficulties nave not been experienced in England since the Lands Acquisition Act was passed about 1S56. I now ask for leave to add to the proposed new clause 8a the following words : - “ (8.) This section does not apply in a ease in which the Minister certifies that there are special reasons why thu section should not apply “

Leave granted.

New clause, as amended, agreed to.

New clause8b.

Senator WRIGHT:
Tasmania

– I move -

That after new clause 8a, the following new clause be added: - “8b. - (1.) Where the owner of an interest in land, being an interest the value of which exceeds Five thousand pounds -

has been served with a notice to treat in respect of that interest; and

has not reached agreement with the Minister for the sale of the interest to the Commonwealth, the owner may, not later than twenty-eight days after the service on him of the notice to treat, request the Minister in writing to cause a public inquiry to be held as to whether the acquisition of the land by the Common wealth is in the public interest. “ (2.) Upon receipt of a request under the last preceding sub-section, the Minister shall, notlater than sixty days after receipt of the request -

refer to a Board of Inquiry constituted under this section, for inquiry and report, the question whether the acquisition of the land by the Commonwealth is in the public interest; or

) withdraw the notice to treat. “ (3.) A Board of Inquiry shall consist of -

a chairman, being a person who is the Chairman of a Valuation Board under the Taxation Administration Act 1953-1955; and

two other members, appointed by the Minister. “ (4.) Where a question is referred to a

Board of Inquiry under this section, the Board of Inquiry shall hold a public inquiry into the question and report its findings to the Minister.”.

I am most obliged to the committee of the Senate because there are 40 or 50 honorable senators present. That is a tribute to the interest that has been accorded to an issue to which our individual judgments can be applied. I hope I shall not be testing the patience of the committee too far if I ask for continued close consideration to be given to the proposed new clause, because this is a proposal which will accord a great measure of justice and satisfaction to a dispossessed land-owner. The amendment, as I have indicated, provides certain procedure where an owner has an interest in land exceeding £5,000 in value. The Minister would not be troubled with this procedure in all the small cases of acquisition. This proposed new clause provides that where the notice to treat has been served, and agreement has not been reached for the sale of the interest to the Commonwealth, the owner may, not less than 28 days after the service of the notice to treat, request the Minister in writing to cause a public inquiry to be held as to whether the acquisition of the land by the Commonwealth is in the public interest. Upon the receipt of that notice, the Minister may refer the question to a board of inquiry or decide to withdraw the notice to treat.

The board of inquiry will consist of a chairman, who is the chairman of a valuation board appointed under the Taxation Administration Act 1953-1955, and two other members appointed by the Minister. Their function is simply to make a report. It is further provided that the report shall be tabled with any acquisition that follows it. The idea is that the report should form the basis of the consideration by members of the House of Parliament to discharge their duties under the section to which the committee previously gave its attention, and under which each House of Parliament has the right to make void an acquisition that has been made.

I wish to make it quite clear to the committee that I have avoided giving any operative effect to the report of the public inquiry. I did that in deference to the idea that it is an executive act to acquire land, and the decision on that point is left to the Minister. Obviously, any Minister, under our constitutional set-up of responsible government, will feel himself bound to consult the terms of that report, and base upon it his decision, either to withdraw from the acquisition or to pursue it according to the terms of the report. If he decides to go on with the acquisition, then he will run the gauntlet of debate in the House based, not upon a total absence of information, but upon the information which the report would provide. Therefore, the report of the public inquiry is to be without operative effect. It will only inform the Minister and the Houses of Parliament.

The other value I attach to it is that sense of satisfaction it will afford to a land-owner who feels that he has a grievance and is prepared to go to the inconvenience and cost of supporting his case before the public inquiry. The purpose of it also is obviously that those who attempt fraud will be intimidated by this section in the vast majority of cases. Those who attempt either preference or prejudice to a particular owner will be deterred because of the possibility that they will have to run the gauntlet of a public inquiry, if the land-owner, feeling a sense of grievance, asks for a public inquiry to be undertaken at his own cost, so far as he is concerned.

My original idea as to the constitution of the board was that it should consist of the chairman mentioned, one nominee of the Minister and one other person nominated by the local government of the area, shire or municipality in which the land concerned was situated. There were difficulties about drafting that particular provision, but we have a board constituted wholly on government nomination to which we have committee quasi-judicial functions. The Board of Review under the Income Tax Act consists of three members. I believe that they have a tenure of seven years, but I am subject to correction on that point. All are nominees of the Government. Coming closer home, the board of appeal under the Gift Duties Assessment Act consists of the chairman I have selected and two other members, both appointed by the government. In practice, having regard to the nature of that jurisdiction, the government always appoints a public accountant, I believe, as the third member of the board. Therefore, from the point of view of this amendment, I would be content to leave the nomination of the board to the Minister, because I do not believe any chicanery would be attempted in any but the most rare and extraordinary case.

Senator Maher:

– Does the honorable senator propose that this board should be permanently appointed ?

Senator WRIGHT:

– No, it would be established ad hoc for the purposes of public inquiry, but the chairman would be expected to be available constantly. No permanent cost would be involved. It is a question of giving a sounding board to a land-owner who has a grievance. He would be able to bring forward citizens - whose substance and reliability would be judged by the board - who would say, “ This is nonsense. It would be a waste of public money to buy that corner of the street or the other corner “, or who would be able to say, “ Mr. X has a grievance against that land-owner, and we wish to ventilate the matter in public “. They might say, “ Mr. so-and-so is going to sell this land at public auction in a few years’ time when it is excluded from the green belt “. It might be said that Mr. X, who is the officer having the duty of advising, is going to buy this land or sell it in’ a few years when it is excluded from the green belt.

I think that the mere existence of this procedure will achieve the purpose of the provision. The mere fact that there is the right of a public inquiry at the instance of the laud-owner will eliminate the exercise of the powers of the section in every case but the odd one in which the landowner might think, as in the case of the Pye brothers, that he would like the comfort of the returned soldiers and farmers in the district coming along to the inquiry and saying, “ This is monstrous “. If the man in the Wimmera or the Murray area, who stood at his front gate with a pitchfork waiting for public servants to come and take possession of his property, had had a. right to demand a public inquiry-

Senator Laught:

– He would not have wanted the pitchfork!

Senator WRIGHT:

– No, and the whole purpose of the proposal is to give him a quasi-judicial procedure which he can use instead of resorting to force and self-help. If there is any suggestion that the inquiry could be prolonged so as to prevent the immediate implementation of the Government’s purpose, I would indicate immediately that I think it proper to add exactly the same provision as we have just inserted in new clause 8a. That is, that the section shall not apply in any case in which the Minister takes the responsibility of making a direct certificate that for special reasons it should not apply. The Minister will then bp faced with a specific matter that affects his conscience, and he must certify that there are special reasons why the landowner should not have a public inquiry.

I now ask for leave to add to the proposed new clause 8B the following words : - “ (5.) This section does not apply in a case in which the Minister certifies that there are special reasons why the section should not apply “.

Leave granted.

Senator Armstrong:

– Having given the Minister power to certify in conditions which he thinks justify his certificate, could he, in any circumstances, delegate that power?

Senator WRIGHT:

– It is a compliment to be asked my view in regard to this matter. I have looked at section 61 and, with some hesitation, I offer the suggestion, that no Minister would take the view that the power to certify under this section is ca pable of being delegated. The language in the section is general. It authorizes the Minister to delegate any of his powers and functions. It is language capable of including this power, but there is a doubt as te that. I think we can rest upon the assurance that a Minister would be very reluctant to regard such a special power as this, to be exercised for special reasons, as coming within the general power to delegate.

Senator Spicer:

– I should agree with that.

Senator KENNELLY:
Victoria

. -While I agree in principle with what Senator Wright has said, I am rather amazed at some of his propositions. If he puts his suggestion as a matter of principle, then why does ho commence at properties worth £5,000? If there is a principle involved, a person is entitled to be protected whether his property is a small cottage, or anything else. Tor that reason, the amendment appears to amount to class legislation, and I do not agree with the minimum stipulation of £5,000. I suggest that the protection should be available regardless of the value of the property.

Senator Wright:

– The honorable senator may make it £500 if he wishes.

Senator KENNELLY:

– The honorable senator’s amendment seeks to make it necessary for the Minister to advise a laud-owner 28 days before acquisition. But then the honorable senator goes further and says that the owner, not later than 28 days after the service on him of notice to treat-

Senator Wright:

– Within 28 days.

Senator KENNELLY:

– That is so. Within 28 days, which may mean on the twenty-seventh day, he has to advise the Minister that he desires a board of inquiry to be formed. Then it is provided that the Minister must put the inquiry in motion within 60 days. But there is no provision as to how long the inquiry should proceed. I do not want to hamstring the inquiry at all. I want to give every one an opportunity to say what he wishes, but on the other hand I do not want it to be a “ Kathleen Mavourneen “, which it could easily become if some person is not anxious to get rid of his land. With the greatest respect to the legal fraternity, both inside and outside this chamber, I suggest that lawyers have a habit of seeing that these things take a long time; and, after all, the affairs of the country must proceed. Therefore, my two main concerns are in regard to the minimum value of a property, and the time that may be taken by the inquiry. I do not want to be unreasonable in the matter of time. I do not know why it is suggested that a person must advise the Minister within 2S days that he wants an inquiry, but that the Minister may take anything up to 60 days to start the inquiry. Is the Minister so overworked that he must be given 60 days?

Senator Gorton:

– That is not the point. Senator Wright has included that provision so that the Minister will not take more than 60 days.

Senator KENNELLY:

– I think the time should be less. I do not think there is so much need for the time to be as long as 60 days.

After hearing the Minister’s remarks on the bill, it seemed to me that he was suggesting some hypothetical cases in which this amendment would delay the carrying-out of some very important function’ of the Crown. I, personally, think that 60 days is much too long. There should be at least some opportunity to have an inquiry. I recall an instance in Victoria in which land was compulsorily acquired under powers given to the Housing Commission and portion of it was not used. I understand, too, that on one portion of it an hotel was erected. To that I say “ shame ! “ - and I mean it. Where it can reasonably be argued that the ordinary work of the Commonwealth is not interfered with there should be an inquiry. A person may desire to submit a case why one block as against another one should not be resumed, bearing in mind as I said previously that that right may be overruled in time of war. Protection is also given under the clause in as much as the Minister accepts responsibility to certify whether the conditions justify an inquiry. Senator Wright should at least ask that the consideration of this clause be adjourned, along with others, with a view to meeting the points I have raised.

Senator BYRNE:
QUEENSLAND · ALP; QLP from 1957; DLP from 1968

– Without having very firm views I feel disposed at first glance to oppose the amendment proposed by Senator Wright. While we are conscious at all times of the need to give complete justice to the private individual against an all-powerful State, we must also at all times take into consideration the practical policies of day to day public administration and try, so far as we can, to reconcile the two. This amendment might greatly impede practical public administration.

My first point is that new clause 8a, dealing with treating, appeared to me to go only to the question of quantum. Sub-clause (3) of the new clause reads -

A person served with a notice to treat in respect of land may, not later than fourteen days after the service of the notice, furnish to the Minister particulars of -

the interest claimed by him in the land;

the amount for which he is agreeable to sell to the Commonwealth his interest in the land;

Apparently, the idea is that that amendment goes only to the question of quantum, that the person who is resisting the resumption would have some figure in his mind which he would specifically state. However, in proposed now clause 8b, which is now before the Chair, the principle is inserted that a person who is given an opportunity to treat, and who again rests his resistance on the matter of quantum, can completely change his ground and resist resumption altogether if he finds that there is no agreement on the matter of quantum. That is how I read proposed new clause 8b, which reads - (1.) Where the owner of an interest in land, being an interest the value of which exceeds Five thousand pounds -

  1. has been served with a notice to treat-

That goes only to the question of quantum and no reference is made to the general principle of resistance to resumption. The proposed new clause further provides -

  1. has not reached agreement with the Minister for the sale of the interest to the Commonwealth, the owner may, not later than 28 days after the service on him of the notice to treat, request the Minister in writing to cause a public inquiry to be held as to whether the acquisition of the land by the Commonwealth is in the public interest.

It is obvious then there has been a complete change of ground from a question of adequacy to a question of whether public interest is involved at all. I hope that Senator Wright, when he is replying to this debate will advert to that point. It may entail writing something into new clause 8a to which the committee has just agreed.

When Senator Kennelly was speaking he referred to the matter of £5,000, and Senator Wright interjected that that could be reduced to £500, which, apparently, is the line of demarcation elsewhere. Again we come up against the problem of practical public administration. We can well imagine the Government being faced with a series of small resumptions, possibly 20 or 30 of them, involving more than £500. Each person resisting resumption would have the same right to have his case determined by a public inquiry. Obviously, what was in Senator Wright’s mind when he mentioned the bigger figure was that new clause 8a would not apply in small cases. If it did. the resumption of a number of individual units would be almost completely impracticable. If the honorable senator as he indicated, agrees that the figure of £500 could be substituted for £5,000. that would lend point to my observation that this proposed amendment could make public administration extremely difficult. 0» that question I do npt, know whether any body other, than the resuming authority, should, have power to determine. whether a proposed, resumption is. in the public interest. If, for instance, the Department of Civil Aviation proposed to resume a property for the purpose of air approaches or. beacons, or something of that character., it would be quite inappropriate for- some extraneous authority, no matter how competent or well intentioned it might be, to. come in and sit in judgment on the expert opinion of the department. On that ground I would resist this proposed amendment, well intentioned though it is, and obviously directed to protect individuals against the State. That is a protection which in most Clr.cumstances I should like to give, but the proposed amendment I think would set the balance heavily against practical administration, and for those reasons I feel disposed to oppose it.

Senator VINCENT:
Western Australia

– Like Senator Byrne, I am somewhat troubled by this proposed amend.ment. First, with great respect to Senator Wright, I suggest it is, to a point, an attempt to take away some executive function from the Government. The amendment proposes to set up a board qf inquiry. While the recommendation of the board need not necessarily be accepted by the Minister, this procedure, up to that stage, would take away from the executive arm of the Government the responsibility in respect of a function for which the Minister is very properly given responsibility by the Parliament. Therefore, it cuts right across my idea of responsible Government. It is true, of course, that we have many boards of inquiry investigating alleged misdemeanours of the Government. For example, we have the Public Accounts Committ.ee, which, of course, is not quite the same kind of body. This is an attempt to cut across government responsibility, and to that extent I cannot agree with Senator Wright’s proposed amendment. If it is argued that it is not an attempt to cut across a function of government, there is a second reason why the proposal lacks some merit.

I suggest to Senator Wright, with all due respect, that it is no;t a very realistic or practical proposition, because on the one hand he asks a board to put a Minister or department on trial on an issue as to whether or not some particular acquisition is in the public interest, and on the other hand the only persons who can say that the acquisition is in the public interest are the Minister, or departmental officials. Consider, for example, that the Minister for. Civil Aviation requires land as a site for an aerodrome. If this amendment were to be carried, the owner could ask for. a board of inquiry to ascertain whether the acquisition is in the public interest. But the only persons who can say that the action is in the public interest are the Minister for Civil Aviation and the officials of the Department of Civil Aviation. If they say before the public inquiry that they want that particular land in the public interest, and that they are not interested in any other land, that would place the board in a very invidious position; because it must accept the evidence of the Minister or department. Therefore, honorable senators will perceive that there is no great merit in the proposed amendment, which is really a matter of Peter trying Peter. The department is placed in issue to establish that the acquisition is in the public interest, and the board must accept the department’s statement on that aspect of the matter. The inquiry would get nowhere, and consequently perhaps the proposal does lack realism. For that reason, even if the proposition does not cut across the function of executive government, I cannot support the amendment.

Senator McKENNA:
TasmaniaLeader of the Opossition

– T have been greatly interested in the answers given to the questions that were asked by the honorable senators who preceded me in this debate. They have all been pertinent .to the issue, and I rise to add my contribution to the remarks that have gone before. It is proposed that .the chairman pf the board of inquiry should be a person who is a chairman of a valuation board under the Taxation Administration Act. He is a governmental officer a,t a governmental level and. as chairman, has to join with two others - who ar.e unspecified - to pronounce on whether a particular acquisition is in accordance with -the public interest. That, is a decision at the highest policy level, which I suggest should not be given by the chairman of a board who is at the departmental or lower level. I can see grave difficulties there. With all due respect to the chairman, one could imagine a bias on his part in favour of the Government.

The board, as proposed, does not convey that aura of complete detachment and impartiality that should apply in a case like this. It is rather difficult to find a body, whether it be a board of inquiry or otherwise, which would be competent to set itself up to determine whether a government or a Minister had acted in the public interest. After all, when a Minister does so act, his act involves his whole government, and the parties who sit behind the Government in the Parliament are also deemed to have given their approval to what has been done.

I am of opinion that a board at the level proposed in the amendment would not be a proper tribunal. In saying that, I am casting no reflection at all on whoever may be chairman of the valuation board. I believe that I heard Senator Wright refer to Dr. Murray some time earlier to-day. I have the highest respect for Dr. Murray, and I completely agree with the honorable senator’s encomiums of him. Nevertheless, I do not see how a person, no matter how skilled or efficient he may be in the art and principles of valuing land could even begin to be qualified by that fact to determine whether a particular project requiring land is one that is or is not in the public interest.

Senator Wright:

– That is not the question.

Senator McKENNA:

– I submit tha’, it gets very close to it. I believe that that chairman, however experienced he may be in land valuation, is not the type of person who would be qualified to determine whether it is a matter of public interest that one particular site should be acquired as against another. That is a. job for a person with a policy-making mind, and with a complete knowledge of the whole project involved. Such a determination involves a great deal more than the consideration of a site, although I appreciate honorable senators’ comments on that particular aspect.

I must confess that I have a bias against anything that reduces ministerial responsibility, and the honorable senator has met that objection by providing thai the Minister may prevent a matter from going to a board on the ground that he accepts complete responsibility for certifying that there are special circumstances that should operate against that being done. All Ministers and governments must take responsibility, and when they offend, their sanction is a political sanction. One can imagine cases such as those mentioned by Senator Kennelly where various pieces of land of lower value than £500, that is, of lower value than would justify reference to a board, are involved in an acquisition. Therefore, might it not be wise to provide for some amalgamation of interests where there is a joint project of that nature?

Senator WRIGHT:
TASMANIA · LP; IND from June 1978

– The regulationmaking power would enable regulations to be made for the practice and procedure of boards, which would enable consolidation of matters to be heard jointly.

Senator McKENNA:

– That also could be argued. I should feel happier if, in the substantive provision rather than under the regulation-making power, there were some clear provision that separate interests in relation to one main project could be combined. I do not want to proceed with the argument as to whether that regulation-making power would cover the position - perhaps it would.

The TEMPORARY CHAIRMAN (Senator Mccallum:
NEW SOUTH WALES

– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -

Tli.it the Chairman do now leave the chair and report to the Senate.

Question resolved in the affirmative.

The Chairman having reported accordingly,

page 426

ADJOURNMENT

The PRESIDENT:
Senator the Hon. A. M. McMullin

– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -

That the Senate do now adjourn.

Question resolved in the affirmative.

Senate adjourned at 10.31 p.m.

Cite as: Australia, Senate, Debates, 11 October 1955, viewed 22 October 2017, <http://historichansard.net/senate/1955/19551011_senate_21_s6/>.