Opinion Number. 457



Key Legislation


The Minister for Home Affairs

The following case has been submitted, by direction of the Minister for Home Affairs, to me for advice:

I am instructed by the Minister for Home Affairs to inform you that he has been requested by the Minister for Defence to compulsorily acquire for the purposes of the De-partment of Defence certain lands near Liverpool, New South Wales, as indicated on the attached plan marked 'D' by red border as amended on the northern boundary by tracing thereto attached.

You will observe that the lands under this proposition embrace an area of some 45,613 acres approximately, of which some 16,960 acres are alienated or in course of alienation, and the balance-comprising 28,653 acres-is Crown Land reserved from sale or lease. You will also notice that this area is traversed in several directions by public roads.

The object of the Department of Defence in desiring the acquisition of this area is to provide what is known as a 'Manoeuvre Area' and Field Artillery Range for the Com-monwealth Military Forces of New South Wales, from which it will be seen that to enable the troops to carry out their exercises it is essential that the Commonwealth should have supreme control over the whole of such area, embracing the public roads.

The Minister for Home Affairs desires to be advised by the Attorney-General as to the legal powers with which the Commonwealth is vested to give effect to the desire of the Minister for Defence to compulsorily acquire these lands.

As the matter is one that is regarded as extremely urgent, I shall be much obliged if it could be dealt with at your earliest convenience.

Under the Lands Acquisition Act 1906 the Commonwealth is empowered to ac-quire, either by agreement or compulsory process, any land falling within the definition of that word in the Act.

In the Act the word 'land' is defined as follows:

'Land' includes any estate or interest in land (legal or equitable), and any easement, right, power, or privilege over, in, or in connection with land, and also includes Crown land, but does not include public parks vested in or under the control of municipal or local authori-ties 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 Proclamation.

In an opinion dated 11 January 1909(1) re the Bundaberg Rifle Range, the Sec-retary to this Department advised as follows:

While agreeing with the course suggested [exchange of sites], I do not agree with the interpretation which appears to be put by the Queensland Crown Law Authorities on the definition of 'Land' in section 5 of the Lands Acquisition Act 1906.1 am of opinion that the words 'specified by Proclamation' in that section refer to a Proclamation by the Governor-General; see Acts Interpretation Act 1901, section 17, sub-section (j). In the absence of any such Proclamation, the only lands excepted by the definition are 'public parks vested in or under the control of municipal or local authorities and dedicated to or reserved for the recreation of the people'.(2)

I agree with that opinion.

The lands in question, including the roads, do not fall within the exceptions con-tained in the definition.

I am of opinion, therefore, that the Commonwealth has power to compulsorily ac-quire the lands.

[Vol. 10, p. 179]

(1)Not published[Vol 7, p.32].

(2)This comprises the whole text of openion.