Opinion:
No. 235
Subject:
ACQUISITION OF LAND
WHETHER STATE HAS POWER TO IMPOSE CONDITIONS ON GRANT
Author:
ISAACS Isaac Alfred
Key Legislation:
CONSTITUTION, s. 51 (xxxi) . PROPERTY FOR PUBLIC PURPOSES ACQUISITION ACT 1901. Part II; ss. 3. 5
Date:
15 February 1906
Client:
The Minister for Home Affairs
Related Opinion:
Opinion text:

The Commonwealth Government purchased from the W.A. Government, by way of exchange, a site for a Customs building at Derby, W.A. When the deed of grant to the Commonwealth came to hand it was found to contain the following stipulation:

  1. that within 21 years from the date of the grant the State may resume the land without compensation for certain specified public purposes if no improvement shall have been made thereon;
  2. the usual reservation of minerals.
The Minister for Home Affairs asks to be advised as to the right of the Crown as represented by the State Government to impose restrictions on the Crown as represented by the Commonwealth Government, and as to what action should be taken.

Where the Commonwealth proposes to purchase land by agreement with a State, the State Government may make what stipulations it pleases. Where the Commonwealth acquires land compulsorily under Division 2 of Part II of the Property for Public Purposes Acquisition Act 1901, the Commonwealth obtains an absolute title in fee simple. The only difficulty that is likely to arise is due to the fact that in some States the Crown Lands Acts require certain conditions to be contained in grants. In my opinion, the Property for Public Purposes Acquisition Act confers upon States the necessary power to make an absolute grant of the fee simple to the Commonwealth in cases of acquisition by purchase.

Section 3 provides that the Governor-General may agree with any State for the absolute purchase by the Commonwealth, for a consideration in money or its equivalent, of any Crown land of the State which is required for any public purpose.

Attorney-General

Section 5 provides that in the case of any Crown land of any State purchased under the Act, the Governor of the State may grant such land in the name of the King to the Commonwealth.

The latter section appears to me to confer a valid authority upon the Governor of a State to give effect to a purchase of an absolute estate in fee simple by issuing an unconditional grant-notwithstanding that the State law may require the insertion of special conditions in grants.

In the 'compulsory acquisition' clauses, the Act provides for the acquisition of land by virtue of Commonwealth action only; in the 'acquisition by purchase' clauses it provides for the acquisition by Commonwealth and State action jointly. In both cases the transfer of ownership takes effect by virtue of the Commonwealth law.

Of course the 'acquisition by purchase' clauses can only be resorted to when the State is a consenting party; and therefore it will be impracticable to act under these clauses if the Commonwealth desires a form of grant which the State Governor is advised that he cannot issue. It is therefore important to be able to meet any objections that may be raised, by the State law officers, to the above reasoning.

It may be argued that the Commonwealth Parliament has no power to confer an authority upon a State officer, as such. It is true that the Commonwealth Parliament has no control over State officers as such; but the principle well established in the United States appears to be unquestionable-that while Congress may not be able to impose obligations upon State officers as such, it can, for the carrying out of Federal legislation, confer authority upon them; and the instances in which this has been done are innumerable. See Kentucky v. Dennison 24 How. 108; Taylor v. Taintor 16 Wall. 370; Ex parte Virginia 100 U.S. 339; Ex parte Siebold 100 U.S. 387; Levin v. U.S. 128 Fed. Rep. 826, etc.

In this case the Federal law authorizes a State Governor to make an absolute grant. If he does so, the legal effect is that the land, by operation of the Federal law, becomes vested in the Commonwealth. The Parliament of the Commonwealth having power to make laws for the acquisition on just terms of property from the State, the mode of acquisition is in the discretion of the Parliament.

Seeing that, under the Federal law, the Parliament has power to acquire State land compulsorily, there seems no reason why the States should not accept this view of the powers conferred as to acquisition by purchase-especially as the Commonwealth is prepared to accept the title to lands so acquired, and the State cannot be damnified in any way.

With regard to the particular transaction in question, I would suggest that-if the Department is not prepared to accept the existing grant-the State be asked, for the foregoing reasons, to issue an unconditional grant; and that failing this, it should be ascertained whether an agreement can be come to with the State as to compensation if the Commonwealth compulsorily acquires the unconditional fee simple.

[Vol. 5, p. 176]


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