ACQUISITION OF LAND
BUILDINGS ERECTED BY COMMONWEALTH ON LAND LEASED FOR DEFENCE PURPOSES: WHETHER COMMONWEALTH CAN LEGISLATE FOR REMOVAL AFTER EXPIRY OF LEASE: 'JUST TERMS'
CONSTITUTION, s. 51 (xxxi)
The Secretary, Department of Defence:
Referring to your instructions, contained in the attached ?le, that a Bill be drafted giving your Department power to remove after the expiration of a lease buildings erected on leased land, I desire to inform you that, upon careful consideration, I am of opinion that such a provision would be of very doubtful validity.
Section 51 (xxxi) of the Constitution gives the Parliament of the Commonwealth power to legislate with respect to: ‘The acquisition of property on just terms from
any State or person for any purpose in respect of which the Parliament has power
to make laws’.
In the case referred to in the attached file, as the buildings have not been removed during the period provided in the lease, and the lease has expired, the buildings have become the property of the owner of the land.
To provide for their removal by the Department would, in my opinion, not be the acquisition of property on just terms.
I suggest that the better course to take would be to endeavour to enter into an agreement with the owner for the removal of the buildings by the Commonwealth, emphasising the fact that the buildings were erected by the Commonwealth for war purposes and that the Commonwealth has a strong moral claim to them.
[Vol. 16, p. 35]