On 22 October 1917, I advised that, assuming no modifications or adaptations of the Lands Acquisition Act 1906-1916 had been prescribed, land acquired for the purposes of a railway may be sold by the Governor-General under that Act.⁽¹⁾

Subsequently the Commissioner for Railways was asked, in connection with a proposal to make certain land in Port Augusta available to the Waterside Workers Union, whether he favoured 'a long lease or a transfer' of the land.

In reply he points out-

that section 63, sub-section (2) of the Commonwealth Railways Act 1917 provides:

(2) The provisions of the Lands Acquisition Act 1906-1916 shall apply, with such modifications and adaptations as are prescribed, in relation to lands acquired or to be acquired for the purposes of a railway.

In other words, excepting where prescribed to the contrary-and no modifications or adaptations have been prescribed-the Lands Acquisition Act 1906-1916 would apply. However, the Commonwealth Railways Act 1917, section 5, provides for the Commissioner selling land.

The leasing of lands is dealt with in section 21 of the Commonwealth Railways Act 1917. Sub-sections (1) and (2) provide for leases with the approval of the Honourable the Minister; sub-section (3) provides for leases with the approval of the Commissioner.

I am not clear as to what is intended by 'transfer' but probably the decision given in the case of the selling of lands, as referred to in the Solicitor-General's ruling of 22 October last, would apply. Upon this file, the Secretary, Department of Works and Railways, has minuted the papers as follows:

As title to lands is involved I shall be glad to know if section 5 of the Commonwealth Railways Act is sufficient warrant for the Commissioner selling lands acquired for railway purposes under the Acquisition Act. Section 5 of the Commonwealth Railways Act 1917 provides (inter alia) that: 'There shall be a Commissioner, who shall . . . subject to this Act have power to . . . sell . . . lands'.

The powers of the Commissioner under this section are in general terms and are subject to the Act.

Sub-section (2) of section 63 of the Act applies the Lands Acquisition Act 1906-1916, with such modifications and adaptations as are prescribed in relation to lands acquired or to be acquired for the purposes of a railway.

Unless regulations have been made prescribing limitations on the application of the Lands Acquisition Act, sales of land acquired for railway purposes may only be made in accordance with that Act, i.e. by the authority of the Governor-General under section 63 of the Lands Acquisition Act 1906-1916, and section 5 of the Commonwealth Railways Act 1917 cannot be relied upon as sufficient authority for the Commissioner selling such land.

I would point out, however, that power exists if thought desirable to make a regulation under the Commonwealth Railways Act 1917 providing that in the application of the Lands Acquisition Act to land acquired for the purposes of a railway, the power of the Governor-General to sell any land shall be vested in and exercisable by the Commissioner.⁽²⁾

[Vol. 15, p. 405]

(1) Opinion No. 828.

(2) It is suggested that what Sir Robert Garran had in mind was a regulation under the Lands Acquisition Act I906. The Commonwealth Railways Act I917, while empowering the Commissioner to make by-laws (section 88), contained no regulation-making power, whereas the Lands Acquisition Act
I906 did give such a power, by section 67.