COMMONWEALTH RAILWAYS SALE OF LANDS NOT REQUIRED FOR RAILWAY PURPOSES: WHETHER COMMISSIONER'S POWER OF SALE IS LIMITED TO SALES MADE FOR PURPOSES OF ACT: SCHEME FOR DECREASE OF EXPENDITURE
LANDS ACQUISITION ACT 1906: NORTHERN TERRITORY ACCEPTANCE ACT 1910, Schedule, Cl.(2)(b): COMMONWEALTH RAILWAYS ACT 1917, ss. 5(1), 16, 43. 63 (1),(2): NORTHERN TERRITORY SURRENDER ACT 1907 (S.A.)
The Department of Works and Railways asks for advice in relation to the matter referred to in the following memorandum received from the Crown Solicitor:
Executive approval has been obtained for the disposal of certain railway land at Port Augusta, South Australia, to the Waterside Workers Federation of Australia.
- The papers in the matter have been forwarded to me for the purpose of completing the matter.
- The land proposed to be conveyed to the Waterside Workers Federation was part of the land which was transferred by the State of South Australia to the Commonwealth under the Northern Territory Surrender Act 1907 of the State of South Australia and the Northern Territory Acceptance Act 1910 of the Commonwealth respectively and formed part of the Port Augusta Railway lands.
- This land became vested absolutely in the Commonwealth Railways Commissioner by virtue of section 16 of the Commonwealth Railways Act 1917.
- Section 63 of that Act applies the provisions of the Lands Acquisition Act with such modifications and adaptations as are prescribed to lands acquired or to be acquired for the purposes of a railway. The effect of this provision is not very clear as its effect may be limited by the words 'subject to this Act' to the sale of lands under section 5 for the purposes of the Act. The provision is not of importance in this case as the Lands Acquisition Act would not apply to the Port Augusta Railway lands.
- The suggested sale could not, I think, be said to be for the purposes of the Act.
- I think therefore that there is no statutory power to carry the suggested sale into effect.
- If, however, a conveyance were made it might not be open to question in a court of law, but the South Australian Government may have a right to object to the sale on the ground that if part of the Port Augusta Railway lands could be sold the whole of such lands could be sold.
- So far as I know the Commonwealth has no title to the lands other than a statutory title under the Acts referred to. There is no definition of the Port Augusta Railway lands in those Acts, and the actual lands forming the Railway can only be ascertained by evidence and a difficulty has as a fact occurred in proving whether a particular piece of land formed part of such Railway lands.
- A transfer of the lands in question to the purchaser would have to be by way of conveyance.
- In the circumstances I think that I ought not to proceed further with the matter without the authority of the Attorney-General.
- An opinion, apparently relating to this matter, was given by the Solicitor-General on 14 March 1918 but the matters mentioned in this memorandum were not brought under his notice.
- The Departmental papers are forwarded herewith.
- Kindly let me have your instructions at an early date and kindly return the Departmental papers therewith.
As regards the difficulties suggested, first in paragraph (5) of the memorandum it is said 'The provision (of the Commonwealth Railways Act) is not of importance in this case as the Lands Acquisition Act would not apply to the Port Augusta Railway lands'. In an opinion of 22 October 1917(1), however, the Solicitor-General expressed the view that by virtue of section 63 (2) of the Commonwealth Railways Act 1917 the provisions of the Lands Acquisition Act 1906-1916 do apply to the lands in question, and, in an opinion of 14 March 1918(2), this view was reaffirmed.
I do not think that the words 'Subject to this Act' in section 63 (1) have the effect of limiting the provision in sub-section (2) making the Lands Acquisition Act 1906-1916 applicable, so that that applicability would extend only so far as there might be found in the Commonwealth Railways Act some other power of sale.
I think the main objection urged by the Crown Solicitor is in paragraphs (6) and (7) of his memorandum, i.e. that as he thinks the sale in question cannot be said to be 'for the purposes of this Act', there is no statutory power to carry it into effect.
Section 5 (1) of the Commonwealth Railways Act 1917 is as follows:
There shall be a Commissioner, who shall be a body corporate by the name of the Commonwealth Railways Commissioner, and shall have perpetual succession and a
common seal, and be capable of suing and being sued, and shall, subject to this Act have power to acquire, purchase, sell, lease, and hold lands, tenements, and hereditaments, goods, chattels and any other property for the purposes of and subject to this Act.
The difficulty suggested by the Crown Solicitor assumes that the words 'for the purposes of . . . this Act' at the end of the sub-section refer to and limit the power to acquire, purchase, sell, lease and hold. But, in my opinion, they do not, but refer to the words 'lands' to 'other property' and describe the subject-matter of the power, but do not limit the purposes of the power. For the words 'for the purposes of must refer to the same words as the immediately succeeding words 'and subject to this Act', and it would not be giving effect to all the language used, but would create a redundancy to read the section thus-'subject to this Act' the Commissioner has power to acquire etc. 'for the purposes of and subject to this Act'. This reading would also leave no words of definition or limitation applicable to the things over which the power relates. But if the first 'subject to this Act' relates to the exercise of the power, and the later words of limitation relate to the things over which the power may be exercised, there is no redundancy and effect is given to all the language used. Some of the things to which the powers relate are not yet subject to the Act for they are not yet bought, some are subject to the Act but not required for its purposes, and therefore they may be sold, but the words 'for the purposes of and subject to this Act' comprise all the subject-matters of the power. The only words of limitation on the power of sale of these things is in the words 'subject to this Act' which immediately precede the words 'have power'.
Is there anything in the Act which would limit the power to sell land so as to exclude its application to the land in question? I am unable to find anything to so limit it.
In addition to this argument based on the grammatical construction of section 5, I think that it would be a very narrow interpretation of the section to read it as has been suggested in the memorandum. The 'purposes of the Act' are generally the construction and management of Commonwealth Railways, but, as shown by section 43 of the Act, in carrying it out, 'a scheme for effecting ... a decrease of expenditure', may be given effect to, and this would be one of 'the purposes of the Act'. Such a scheme might include the sale of lands not required for railway purposes, thus decreasing the capital cost of the railway. If in section 5 the power to sell land is limited to sales 'for the purposes of . . . this Act', it is difficult to see how this grant of power could be other than illusory unless a sale for this purpose came within it.
I therefore think that there is statutory authority for carrying the suggested sale into effect.
As regards paragraph (8) of the Crown Solicitor's memorandum it follows that if the sale is under statutory authority, the South Australian Government would have no right to object to it. I do not think that the argument is sound that if part could be sold, the whole could. Though it may well be that part is not required for the purposes of the railway, it could not be that none of it is so required. It is not a sufficient reason for holding that a power is not given, because it is conceivable that the person in whom the discretion to exercise it is reposed might possibly exercise it foolishly or extravagantly.
In paragraph (9) of the memorandum a further difficulty is suggested that there might be some question as to what lands are included in the Railway lands. In the Agreement between the Commonwealth and the State of South Australia, set out in the Schedule to the Northern Territory Acceptance Act 1910, at paragraph (2) (b) the lands are described as 'the Port Augusta Railway including the lands now used for and reserved for such railway' etc. If at any time a question arises as to a particular parcel of land, it will have to be determined by evidence.
Generally, therefore, I see no legal objection to a transfer of the land in question by conveyance.
[Vol. 16, p. 155]
(1)Opinion No. 828.
(2)Opinion No. 847.