Opinion Number. 1618


acquisition of land power of commonwealth compulsorily to acquire proposed site for flying-boat base at rose bay: ‘public purpose’: compulsory acquisition of park lands: significance of state opposition to acquisition

Key Legislation

Lands Acquisition Act 1906 ss 5, 13, 15: Lands Acquisition (Defence) Act 1918: Constitution s 51(i), (v), (vi), (xxix), (xxxi): International Convention Relative To Air Navigation done at Paris on 13 October 1919 [1922] ATS 6

The Secretary, Department of Defence

The Controller-General of Civil Aviation has forwarded me the following minute for advice:

The Minister for Defence desires an urgent opinion as to the Commonwealth’s powers to compulsorily acquire the proposed site for the Flying Boat Base at Rose Bay in the face of opposition from the NSW Government.

I am informed that the site comprises the whole or portion of the following lands:

  1. An area of 8 acres 2 roods 34 perches occupied by the Royal Australian Navy as a recreation ground. This area is State Crown lands and is held by the Commonwealth for recreation purposes under a tenancy at will.
  2. An area known as Lyne Park. Portion of this Park has been dedicated for public recreation but, although placed under the control of the Woollahra Council, it was not vested in that body. It is not, however, a proclaimed public park. I have no information before me as to the status of the remainder of the Park.
  3. Other lands which appear to be owned privately.

Under section 13 of the Lands Acquisition Act 1906–1936 the Commonwealth may acquire any land for public purposes by agreement with the owner or by compulsory process.

Section 5 of that Act defines ‘land’ and ‘public purpose’ as follows:

‘land’ includes any estate or interest in land (legal or equitable), and any easement, right, power or privilege over, in, or in connexion with land, and also includes Crown land, but does not include public parks vested in or under the control of municipal or local authorities and dedicated to or reserved for the recreation of the people, or such other lands dedicated to or reserved for the use and enjoyment of the people as have been specified by a Commonwealth or State Proclamation;

‘Public purpose’ means any purpose in respect of which the Parliament has power to make laws, … ;

The areas mentioned in paragraphs (a) and (b) appear to be identical with areas specified in the proclamation issued by the Lieutenant-Governor of New South Wales on the 1st August, 1905, and published in the Government Gazette of that State on the 2nd August, 1905 (cf. p. 5305). This proclamation dedicated an area of 8 acres 2 roods and 34 perches for a recreation ground for the Royal Navy and an area of 10 acres and 2 roods for public recreation. This first mentioned area seems to be identical with that specified in paragraph (a) and the other area specified in paragraph (b) above.

The lands specified in paragraph (a) having been dedicated as a recreation ground for the use of the Royal Navy do not appear to be covered by the exception in the definition of ‘land’. The lands specified in paragraph (b), however are clearly within the exception and therefore cannot be compulsorily acquired under the Lands Acquisition Act.

If compulsory acquisition of these lands referred to in paragraph (b) by the Commonwealth is desired, it will be necessary to pass appropriate legislation.

It would appear that the lands referred to in paragraph (c) above are not excepted from the meaning of the term ‘land’ as defined by section 5 and could, therefore, be acquired by the Commonwealth by compulsory process for a ‘public purpose’.

A similar case of compulsory acquisition of park lands was effected by the Commonwealth in 1918. The matter was then dealt with by passing a special Act. The Lands Acquisition (Defence) Act of that year enabled the Commonwealth to acquire, under the Lands Acquisition Act, certain park lands at Leichhardt for defence purposes.

Whether the land is acquired under the Lands Acquisition Act or under a special Act, it is necessary, in view of section 51(xxxi) of the Constitution, to consider whether the purpose for which the land is to be acquired is a purpose in respect of which the Commonwealth Parliament has power to make laws (Constitution, section 51 (xxxi)).

There are several heads of power in section 51 of the Constitution under which the Commonwealth Parliament may, in my opinion, enact legislation in relation to a flying boat base. The following placita of section 51 may be instanced:

(i) Trade and commerce with other countries and among the States.

(v) Postal, telegraphic, telephonic and other like services.

(vi) The naval and military defence of the Commonwealth and of the several States.

(xxix) External Affairs.

With reference to the last mentioned placitum, it may be explained that the Commonwealth has power thereunder to pass legislation implementing the Convention for the Regulation of Aerial Navigation of 1919 (cf. Henry’s case, 55 C.L.R. 6081), and for this purpose it may be necessary to establish aerodromes at which aircraft from abroad may be inspected, etc.

Section 15 of the Lands Acquisition Act requires the purpose for which the land has been acquired to be expressed in the notification of acquisition published in the Gazette.

With regard to the question whether the lands may be acquired in the face of opposition by the New South Wales Government I am of the opinion that, in general, a State Government is, with respect to an acquisition of land under the Lands Acquisition Act, in no better position than a private individual. The opposition of the New South Wales Government would not, therefore, affect legally the power of the Commonwealth to proceed with the acquisition in question.

[Vo. 30, p. 318]