Opinion Number. 1659


power to make regulation under National Security Act providing that notification in Gazette UNnecessary where land is acquired under Lands Acquisition Act for Defence purposes: POWER TO MAKE REGULATIONS RELATING TO DEFENCE AREAS: WHETHER REQUIREMENT FOR AREA TO BE PROCLAIMED CAN BE REMOVED

Key Legislation

NATIONAL SECURITY ACT 1939 s 5(b): DEFENCE ACT 1903 s 124(1)(na)

The Secretary, Department of Defence Co-ordination

On further consideration, I am doubtful whether there is power to make a regulation under the National Security Act providing that a notification in the Gazette shall not be necessary where land is acquired under the Lands Acquisition Act for Defence purposes.

Regulations can be made under the National Security Act which override the provisions of other Commonwealth Acts, but I think that the words ‘other than land’ in paragraph (b) of section 5 of that Act would be construed as indicating an intention to exclude the power to make regulations authorising the acquisition of land.

On first sight, the suggestion contained in paragraph 3(b) of your memorandum does not appear to contemplate such a regulation but merely a regulation providing for the modification of the procedure relating to the notification of the acquisition of land under the Lands Acquisition Act.

Such a regulation would be unobjectionable, but, upon further consideration, I am inclined to think that, although the notification in the Gazette under the Lands Acquisition Act declares that the land has been acquired, this notification is such an essential step in the process of acquisition that a regulation prescribing some other procedure might be regarded as a regulation authorizing the acquisition of land and might be held, for that reason, to be outside the powers conferred by the National Security Act.

It appears to me, therefore, that in order to accomplish what is desired, it will be necessary to amend the Lands Acquisition Act or the National Security Act.

With reference to the proposal to amend the Control of Defence Areas Regulations in order to authorize the abandonment of the practice of issuing a Proclamation, describing the area affected, paragraph (na) of sub-section (1.) of section 124 of the Defence Act, which authorizes the making of regulations relating to Defence areas, limits the power to ‘areas proclaimed by the Governor-General’. The necessity for a Proclamation arises, therefore, not from the Regulations, but from the Act itself. Consequently, it would not be possible to make a regulation under the Defence Act authorizing the abandonment of the practice of issuing a Proclamation.

In my opinion, however, regulations could be made under the National Security Act, to control the height of buildings, the storage of dangerous materials, etc., in the vicinity of areas used for Defence purposes.

[Vol. 33, p. 4]

(1) John Frederick Gamble. Born 6 August 1889, South Melbourne, Victoria; died 5 June 1945, Auburn, Victoria. Appointed Commonwealth Attorney-General’s Department 1907. Admitted Victorian Bar 1920. Private Secretary to Attorney-General WM Hughes. Secretary to Representatives of the Government in the Senate 1927. Appointed Chief Clerk and Assistant Parliamentary Draftsman 1932; Principal Legal Officer 1938; Second Assistant Secretary 1939. Appointed Liaison Officer to the Departments of Defence, Navy, Army and Air 1939.