Opinion:
No. 407
Subject:
DEFENCE PURPOSES
EXTENT OF POWER TO ENTER AND USE LAND : WHETHER LEGISLATION WITHIN EXCLUSIVE POWER OF COMMONWEALTH BINDS STATES WITHOUT EXPRESS MENTION
Author:
HUGHES William Morris
Key Legislation:
CONSTITUTION, ss.SI (vi), 52(H), 69, 114 : DEFENCE ACT 1903-1910, s.69
Date:
20 March 1911
Client:
The Minister for Home Affairs
Related Opinion:
Opinion text:

Section 69 of the Defence Act is as follows:

The Governor-General may give a general or particular authority to the Defence Force, or any part thereof, to enter upon and use any lands for training, manoeuvres, or other naval or military exercises or purposes, and compensation shall be made, in the manner prescribed, for any damage or loss sustained by the owner or occupier of the lands, by reason of such entry or use.

The Minister for Home Affairs asks for advice as to whether the powers conferred by this section extend to the National Park of New South Wales.

The National Park consists of Crown lands dedicated for the purpose of a National Park by notifications gazetted on 26 April 1879 and 3 August 1880 in accordance with section 5 of the Crown Lands Alienation Act of 1861.

By notification gazetted on 26 April 1879, trustees of the National Park were appointed under the provisions of the Public Parks Act of 1854.

The effect of the appointment appears to be that the trustees are a body corporate with the same powers in respect of the land as if the land had been granted to them in trust for the purposes of the dedication (see now Public Parks Act 1902, No. 40).

In my opinion, the powers conferred by section 69 of the Defence Act extend to all lands in the Commonwealth, whether privately owned, or waste lands of the Crown, or Crown lands such as the National Park, which are dedicated for public purposes. Defence being an exclusive power of the Commonwealth, the States are bound by laws relating to it, without express mention. See R. v. Sutton 5 C.L.R. at pp. 795-798, etc.

The object of section 69 was, in my opinion, to empower the Governor-General in Council to authorise the Forces to enter and use any land whatever for training, manoeuvres etc. It would be inconsistent with that purpose to imply its limitation to lands privately owned.

The safeguard against the abuse of the power of entry is that it can only be exercised on the authority of the Governor-General in Council.

[Vol. 8, p. 326]


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