Opinion Number. 321

Subject

ACQUISITION OF LAND NATURE AND EFFECT OF POWER : CRITERIA FOR ACCEPTABLE RESERVATIONS IN TRANSFERS BY AGREEMENT

Key Legislation

CONSTITUTION, s. 51 (xxxi) : LANDS ACQUISITION ACT 1906

Date
Client
The Secretary, Department of Home Affairs

These papers deal with the question of reservations in Crown Grants in cases where land is acquired by the Commonwealth under the Lands Acquisition Act 1906.

In an opinion of 18 March 1907(1) the Attorney-General expressed the following views:

If the Commonwealth acquires land from an individual only, whether by compulsory process or by agreement, it does not, in my opinion, acquire anything more than the interest which the individual had and consequently it does not acquire the rights reserved by the State. The reservations in this case have the same effect as against the Commonwealth as they had against the individual from whom the Commonwealth acquired the land.

If the Commonwealth acquires by compulsory process, not the interest of an individual owner merely, but the land without any limitation expressed in the notification, it acquires the legal estate in the land, including all the interests reserved to the State.

If the Commonwealth acquires land from a State by agreement, the extent of the interest acquired depends upon the terms of the agreement.

That opinion was forwarded to the Department and in a minute thereon the Secretary to that Department stated:

With reference to the advising of the Attorney-General it is thought that, perhaps, Mr Groom had not before him, a copy of the phraseology used in Executive Minutes in connection with compulsory acquisition (copy herewith). It would seem to acquire the interest of the individual and any other person. (See also section 16 Acquisition Act.) The question of what reservations are to be accepted in Crown Grants still remains for settlement:

  1. In cases of acquisition by agreement from individuals, the Commonwealth, it is presumed must take what title the individual has to transfer.
  2. In cases of acquisition by agreement from State Governments some objectionable reservations have been inserted, as already pointed out, and it seems a matter of negotiation between Commonwealth and States as to what estate shall be transferred. The Attorney-General's Department should, perhaps, be asked to negotiate.

The Minister of Home Affairs has minuted the papers to this Department stating that he thinks the Attorney-General is consulting with the Attorney-General of each State as opportunity offers. This is evidently a misconception, as this Department although it may have had communications with the law officers of some of the States as regards particular cases, has had no communications with them as regards reservations generally. If any such communication is to be made it is submitted that it should be made through the Prime Minister to the Premier of the State.

Referring to the minute of the Secretary to the Department of Home Affairs of 20 May 1907 it is submitted as regards (a) and (b), as follows:

  1. in the case of the acquisition of land by agreement with an individual the Commonwealth acquires only the rights which are conveyed to it by the individual. But there is nothing in the Act to prevent the Commonwealth from acquiring in addition any interest reserved to the State, and
  2. there is no reason why, in cases of acquisition by agreement from a State, any objectionable reservations should be included in the title. The Act is so framed that acquisition by agreement could be effected free from any reservation whatsoever or subject to such reservations as the parties think fit to agree to.

It will, I think, be found impracticable to lay down precisely all the reservations which can be allowed and those which cannot be allowed because reservations suitable to one part of the Commonwealth might be unsuitable to another part, and reservations suitable in the case of land required for a particular purpose such as a post office might be quite unsuitable in the case of land required for some other purpose such as a fort or explosive magazine.

There are however certain reservations which ought not to be permitted in any case. These are:

  1. the reservation on the part of the State of the right to resume the land for its own public purposes; and
  2. the reservation on the part of the State or of any person of a right to interfere in any way with the surface of the land.

The reservation of minerals might be allowed in all cases where mining under the land would not affect the use of the surface of the land for the purpose for which it was acquired. But the reservation should confer no right to break through the surface. Permission to break through would, no doubt, be granted in suitable cases, but the right to grant or withhold the permission should in all cases vest in the Commonwealth authorities.

[Vol. 7, p. 49]