REPATRIA TION: ACQUISITION OF LAND WHETHER COMMONWEALTH HAS POWER TO ACQUIRE LAND FOR PURPOSE OF REPATRIATION LAND SETTLEMENT
CONSTITUTION, s. 51 (vi), (xxxi), (xxxix): LANDS ACQUISITION ACT 1906: LAND TAX ASSESSMENT ACT 1910, s. 48
The Secretary, Prime Minister's Department, has forwarded the following memorandum asking for advice:
With reference to the question of the settlement of soldiers on the land, which is to be discussed at the forthcoming conference between the Commonwealth and State Governments, the Acting Prime Minister wishes to learn urgently whether the Commonwealth would be justified, either at the request of the States or otherwise, in exercising the compulsory powers contained in the Land Tax Act or the original Lands Acquisition Act, or in passing special legislation, in order to acquire land for the purpose of accelerating repatriation land settlement.
As regards the compulsory powers contained in the Land Tax Act, I understand that what is referred to is the power of the Commonwealth to acquire land under section 48 of the Land Tax Assessment Act 1910-1914 unless the valuation is increased. The opening portion of that section is as follows:
For the protection of the revenue against the undervaluation of land, if the Commissioner is of opinion that the owner of any land has, in a return furnished under this Act, understated the unimproved value of the land, to the extent of twenty-five per centum or more, the following provisions shall apply.
Then follow the provisions, which include an application by the Commissioner to the High Court for a declaration that the Commonwealth is entitled to acquire the land, under the Act, and a declaration by the Justice if satisfied the owner has understated the unimproved value of his land to the extent of at least twenty-five per centum and is not satisfied the undervaluation was not made with a view to evading taxation. If the land is acquired under the Act notice of the acquisition is given to the Government of the State in which the land is situated, and if that Government does not acquire the land from the Commonwealth within three months the Commonwealth may use the land for a public purpose of the Commonwealth, or, if it is not required for a public purpose, may dispose of the land.
It should be pointed out that the purpose for which this power to acquire land is given is expressed in the opening words of the section: 'For the protection of the revenue'. In my opinion that is the sole consideration for which regard should be had in determining whether an application should be made to the Court for a declaration that the Commonwealth is entitled to acquire the land.
If, however, the Commonwealth were to acquire land in accordance with the section and the State Government concerned were not prepared to accept a transfer of the land upon the terms set forth in the section, it would, in my opinion, be a proper exercise of the power of the Commonwealth to utilise the land for the purpose of accelerating repatriation land settlement.
The next question upon which advice is asked is whether the Commonwealth would be justified in exercising the compulsory powers contained in the Lands Acquisition Act in order to acquire land for the purpose of accelerating repatriation land settlement.
The Lands Acquisition Act 1906-1916 was passed in exercise of the power conferred by section 51 (xxxi) of the Constitution namely:
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.
The question, therefore, arises whether the repatriation of soldiers by means of land settlement is a purpose in respect of which the Parliament has power to make laws.
In this connection it may be pointed out that in the case of Farey v. Burvett 21 C.L.R. 433, Griffith C.J., when discussing the power of the Parliament of the Commonwealth to make laws with respect to the naval and military defence of the Commonwealth, expressed, at p. 440, the opinion that-
. . . the word 'defence' of itself includes all acts of such a kind as may be done in the United Kingdom, either under the authority of Parliament or under the Royal Prerogative, for the purpose of the defence of the realm, except so far as they are prohibited by other provisions of the Constitution. Upon the whole I am of opinion that the repatriation of soldiers by means of land settlement is a purpose in respect of which the Parliament has power to make laws, as being a matter incidental to the execution of the powers of the Commonwealth in relation to the naval and military defence of the Commonwealth.
I think, therefore, that the acquisition of land for the purpose of accelerating repatriation land settlement is a public purpose within the meaning of the Lands Acquisition Act 1906-1916.
In view of my opinion as to the power to utilise the Lands Acquisition Act 1906-1916 for the purpose of acquiring land for repatriation land settlement, I presume advice will not now be desired as to the power to pass special legislation on the matter.
[Vol. 16, p. 85]