110615- ted baillieu premier - re rates-etc

8/6/2019 110615- Ted Baillieu Premier - Re Rates-Etc

http://slidepdf.com/reader/full/110615-ted-baillieu-premier-re-rates-etc 1/22

p1 15-6-2011INSPECTOR-RIKATI ® about the BLACK HOLE in the CONSTITUTION-DVD

A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE : You may order books in the INSPECTOR-RIKATI® series by making a reservation, by fax0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

WITHOUT PREJUDICETed Baillieu Premier [email protected]

5Cc; Banyule City Council , E-mail: [email protected]

Ref: What is public purpose and the usage of public monies for this? Re rates, etcTed,please note reproduced below is a 8-7-2010 correspondence provided to me regarding the failure10of the 1988 referendum to allow the recognition of municipal/shire councils as a level of government. It must therefore be clear that municipal/shire councils are not a level of government and the States created by s106 of the constitution cannot circumvent constitutionalconstrains by artificially creating municipal/shire councils as a form of level of governmentreferred to as “local government”. As a CONSTITUTIONALIST it is my concern that the15pretended level of local government as being municipal/shire councils has continueddisregarding constitutional limitations in that regard..

I now will address the issue of Banyule City Council in regard of a report in BANYULE &NILLUMBIK WEEKLY of 12 April 2011 under the heading Banyule looking to stay back in20black” by Dan Moss in which it was claimed;QUOTE

Cr Wayne Phillips said Banyule was performing well: “I don’t think anyone’s getting hung up about it[surplus and deficit].”

END QUOTE25As municipal/shire councils, unlike in The Netherlands, have no role on a constitutional basis tobe a level of government, then any authorisation for and on behalf of the State government mustbe that it doesn’t conflict with its real purpose and that is to represent ratepayers interest.It is not some body to collect monies for and on behalf of the State government, because thiswould be in contradiction of the interest of its ratepayers.30It is not to have any kind of surplus , and so it is in fact an issue as to deficit and surplusbecause a municipal/shire council which is to act in the interest of its ratepayers must ensure itonly charges for monies that are relevant to the essential services it provides, such as garbagecollection, etc, and not to become some revenue collection agency for the State government.It is not just sad but disgraceful that a former Member of State Parliament like Cr Wayne Phillips35

doesn’t seem to understand/comprehend what the position of municipal/shire councils are about.Because municipal/shire councils are there to specifically represent their respective ratepayers attimes in direct contrast with an adjoining municipal/shire council then it must be clear that thecore essence is representation of its own ratepayers and not that of others. It is not relevant forthis purpose either if an adjoining municipal./shire council say doesn’t have say a pool because if 40its own residents are catered for it then no expenditure could be justified just to facilitate foranother municipal/shire council’s residence. It is another matter if benefits are drawn from alienratepayers. When one read up to numerous American decisions then it is clear that publicmonies, such as taxation, can only be used for public purposes and not for private enterprisebenefits. The same is in Australia. We find the absurdity of say councillors using rate payers45monies to fund a renovating of a private clubs kitchen, which I view is a gross abuse of





ratepayers monies because if the club is not a public club but limited by membership then it fallsoutside the “public” terminology for funding. As such, “ public ” must entail that it is unlimited.If therefore one has a so called “ public park ” but it is off limit other then say members of a golf course then it is not a public park at all because of the membership limitations. When therefore amunicipal/shire council considers implementing a budget it must consider if each and every5subject for which monies are requested fall within the definition of being for “ public purposes ”.





.

.http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn505QUOTE





Constitutional interpretationThe starting point for a principled interpretation of the Constitution is the search for the intention of itsmakers [51] .

END QUOTE.5Hansard 2-2-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention)QUOTE Mr. DEAKIN (Victoria).-

The record of these debates may fairly be expected to be widely read, and the observations to which I

allude might otherwise lead to a certain amount of misconception.10 END QUOTE..Hansard 9-3-1898 Constitution Convention DebatesQUOTE

Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)15may be perfectly correct. It may be that without any special provision the practice of the High Court, whendeclaring an Act ultra vires , would be that such a declaration applied only to the part which trespassedbeyond the limits of the Constitution. If that were so, it would be a general principle applicable to theinterpretation of the whole of the Constitution.

END QUOTE20.Hansard 1-3-1898 Constitution Convention DebatesQUOTE

Mr. GORDON .-Well, I think not. I am sure that if the honorable member applies his mind to the subject hewill see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court25the court is bound to give an interpretation according to the strict hyper-refinements of the law. It maybe a good law passed by "the sovereign will of the people," although that latter phrase is a common one whichI do not care much about. The court may say-" It is a good law, but as it technically infringes on theConstitution we will have to wipe it out. " As I have said, the proposal I support retains some remnant of parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.30

END QUOTE.Hansard 1-3-1898 Constitution Convention DebatesQUOTE

Mr. BARTON .-They do not require to get authority from home, for this reason: That the local35Constitutions empower the colonies separately to make laws for the peace, order, and good governmentof the community, and that is without restriction, except such small restrictions as are imposed by theConstitutions themselves, and, of course, the necessary restriction that they can only legislate for theirown territory. The position with regard to this Constitution is that it has no legislative power, exceptthat which is actually given to it in express terms or which is necessary or incidental to a power given.40

END QUOTE.Hansard 19-4-1897 Constitution Convention DebatesQUOTE

Mr. CARRUTHERS:45This is a Constitution which the unlettered people of the community ought to be able to understand.

END QUOTE.HANSARD 17-3-1898 Constitution Convention Debates

QUOTE50 Mr. BARTON .- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but underit; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to theConstitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of 55this kind, enable any Government or any Parliament to twist or infringe its provisions , then by slowdegrees you may have that Constitution-if not altered in terms-so whittled away in operation that theguarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, thecourt you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal aswill preserve the popular liberty in all these regards, and will prevent, under any pretext of 60constitutional action , the Commonwealth from dominating the states, or the states from usurping the sphereof the Commonwealth.





END QUOTE.Hansard 9-9-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention )QUOTE Mr. SYMON:5

It cannot possibly extend the operation of our laws generally one ato m further than the constitutionallaw will permit.

END QUOTE.HANSARD 10-03-1891 Constitution Convention Debates10QUOTE

Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentarysovereignty. Parliament has been the supreme body. But when we embark on federation we throwparliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present arenot only legislative, but constituent bodies. They have not only the power of legislation, but the power15of amending their constitutions. That must disappear at once on the abolition of parliamentarysovereignty. No parliament under a federation can be a constituent body; it will cease to have thepower of changing its constitution at its own will.Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-themain power is split up, instead of being vested in one body. More than all that, there is this difference:20When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament,you bring into existence a powerful judiciary which towers above all powers, legislative and executive,and which is the sole arbiter and interpreter of the constitution.

END QUOTE.25Hansard 15-9-1897 Constitution Convention DebatesQUOTE

The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I amwrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, aresubjects on which no question of state rights and state interests could arise except by the merest accident. It is,30as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be leftfor all time to be determined in a purely states house, or by a state referendum , when those questions are notstate questions-when they ought to be decided, not on state lines, but on national lines, and by a nationalreferendum .

END QUOTE35.Even I with my self professed “ crummy English ” can understand the meaning of:.HANSARD 10-03-1891 Constitution Convention DebatesQUOTE Dr. COCKBURN:40

No parliament under a federation can be a constituent body; it will cease to have thepower of changing its constitution at its own will.

END QUOTE.As such it is not relevant if a State purportedly legislated for municipal/shire councils to be a45form of “local government’ as the purported Victorian Constitution Act 1975 itself withoutapproval of a State referendum is and remains unconstitutional as I successfully submitted to theCounty Court of Victoria on 19 July 2006, and so unchallenged by any of the Attorney-Generals!.

Therefore constitutionally that is, municipal/shire councils are and remain to be private entities50that are to operate on behalf of its ratepayers and can only charge rates in regard of essentialservices it provides and nothing else.We have for example where council pays towards the promotion of certain local business andthen charge back from the local businesses a certain percentage, this is not legally valid becauseit is not public. Indeed, other businesses within the same municipal/shire council may be55adversely affected by this and so it will fail to be of a “public” nature.We have in Port Philip where the Albert Park races are held and the State government usestaxpayers monies to prop up the scheme claiming it is in the interest of all Victorians. This is a





claim made which hold no substance because it might be an ideology by a State government butthe evidence is rather to the contrary. The monies go into the coffers of those holding the grandPrix under licence, and therefore is a non-public arrangement.Likewise where then the funding or other related cost are kept secret, allegedly being tradesecrets, no such thing could be more of the mark from being “ public ” because if a5municipal/shire council acts on behalf of the ratepayers it MUST as it agent disclose all relevantdetails. Trade/business confidentiality do not belong in the “public” environment. Indeed workscounter productive to proper representation. Fancy a council to approve a secret expenditurewhere perhaps a local business could provide the same at a far lesser cost?Likewise the settling of disputes should never be “confidential” when it comes to municipal/shire10councils because to do so would mean that the municipal/shire council no longer is acting torepresent the ratepayer’s interest but its own..

Councillors may each desire to create their own kind of Taj Majhal’s as to remember themselveswith in time after they are gone but that is not what ratepayers have to provide for.15Nothing stops a councillor to donate a Taj Majhal build at his/her own expenses and donate thisto the municipal/shire council but when it comes to using our monies, as ratepayers, then just beaware you better do not steal our monies for your pet projects..

As a CONSTITUTIONALIST I am well aware that at the federal level legislation must be that20applies “uniform” throughout the Commonwealth of Australia whereas the states are not boundby this legal principle. They were referred to as being “local council” because of the localknowledge (Ok they are presumed to have this) of what are State matters and can fund for what itdeems appropriate. However, it doesn’t permit the State to engage in non-public entities such asthe funding of the Albert Park races and other items.25.As the Framers of the Constitution made clear that Consolidated Revenue Funds could only beused for maintaining the Government Department obligations and cost and not for anything notpermitted by its constitutional legislative powers. As such, public business are not within theordinary legislative powers as while the Commonwealth can legislate as to legal principles to be30applied ultimately the private sector conduct its financial affairs as it desire and at time does sovery successfully while others do so disastrous..Hansard 12-3-1898 Constitution Convention DebatesQUOTE35

Mr. FRASER (Victoria).-I heartily support the clause as passed last evening. But I would like to drawattention to what I conceive to be a danger in it. The clause contains a cast-iron provision, and it may lead tothe Commonwealth being in dire necessity for money at some future time. Suppose an invasion took place, orthe Commonwealth requires to enter upon a very large expenditure for some public purpose -an expenditurewhich the whole nation would unanimously say "Yea" to it will be hampered by the provisions of this clause,40because the clause says that the Commonwealth shall only take a certain proportion of the Customs revenue.

END QUOTE.Hansard 7-4-1891 Constitution Convention DebatesQUOTE45

Sir JOHN BRAY: I shall bring it in later, but not in this clause. If we can devise some fair scheme bywhich the public revenue of the commonwealth shall be expended for the public benefit of Australia, let us doso; but do not let us encumber the scheme with the idea that each particular mode of taxation is to be levied toan extent greater than is required for the public purposes of the commonwealth, and that in each mode of taxation, whether through the customs or by excise duties, there will be a surplus to be returned to the50different colonies of Australia, and that that surplus is to be estimated on the basis of the amount paid toeach colony as far as it can be ascertained.

END QUOTE

Hansard 9-4-1891 Constitution Convention Debates55





QUOTE DRAFT OF A BILL To Constitute the Commonwealth of Australia.

6. All lands, buildings, works, and materials necessarily appertaining to, or used in connection with, anyDepartment of the Public Service the control of which is by this Constitution assigned to the Commonwealth,shall, from and after the date of the establishment of the Commonwealth, be taken over by and belong to theCommonwealth, either absolutely or, in the case of the Departments controlling Customs and Excise and5Bounties, for such time as may be necessary.

[start page 959]

And the fair value thereof shall be paid by the Commonwealth to the State from which they are so takenover. Such value shall be ascertained by mutual agreement, or, if no agreement can be made, in the manner inwhich land taken by the Government of the State for public purposes is ascertained under the laws of the10State.

Collection of existing duties of Customs and Excise.

END QUOTE

.15Hansard 19-4-1897 Constitution Convention DebatesQUOTE

Mr. BARTON: There are one or two verbal amendments to be made in this clause. If the words "belong to"are changed to "vest in" it may become more clear that lands, buildings, and works in connection with thedepartment will pass to the Commonwealth without the necessity of any legal assurance given by the20operation of this Constitution.

Mr. REID: What about buildings used only in the State?

Mr. BARTON: They will be vested in the Commonwealth until such time as might be necessary, Therewill be no confusion there because the State may vest in the Commonwealth, either for fee-simple or fora number of years. I propose:25

To leave out the words "belong to" and insert "vest in" in lieu thereof.

Amendment agreed to.

Mr. BARTON: I also propose;

To strike out in the last line of the clause the words "the date of."

This is merely for conformity. The expression:30

At the establishment of the Commonwealth, is used right through the Bill.

Mr. DOBSON: I should like to know if Mr. Barton proposes to leave in the words

The fair value thereof, or the use thereof.

Mr. BARTON: Yes; for the reason that lands, buildings, &c., are to be taken over absolutely, or in the caseof departments controlling Customs and excise and bounties, for such time as may be necessary, There will be35a large number of buildings and lands in connection with Customs which will only be taken over in the timeintervening between the establishment of the Commonwealth and absolute free trade. There will be a numberof such lands, buildings, and works, and the Commonwealth does not want them after it has got uniformCustoms. For instance, there will be those on the border, which will not be wanted after five years; but theseperiods cannot be determined at present absolutely, and the only phrase that can be used is.:40

For such time as may be necessary,

"Vest in" is commonly used, and will apply to either.

Sir PHILIP FYSH: The hon. member Mr. Barton has not met the case referred to by my hon. colleagueMr. Dobson. I know of post offices and telegraph offices connected with supreme courts, and it will be





impossible for those buildings to be taken over in the sense of complying with this clause. The use of suchbuildings must necessarily be vested in the federal authority for which a certain rental will be made. Ipresume the term "use" includes rental. On that point I desire to be informed.

Mr. BARTON: The probability is that in such circumstances the building would itself vest with theCommonwealth for the time necessary to hold it, whether the building were rented by the State or not., and5the Commonwealth would make its own arrangements with the State.

Mr DOUGLAS: It cannot vest in the Commonwealth.

Mr. BARTON: It Must.

Mr. DOUGLAS: Take, for instance the post and telegraph office at Hobart, which is part and parcel of thebuilding used for the Supreme Court. That could not be vested in the Commonwealth.10

Mr. BARTON: That is met by the words:

Or used in connection with any department of the Public Service .

That is to say, so much as is necessary would be vested in the Commonwealth.

Mr. CARRUTHERS: I do not intend to move an amendment now, because I do [start page 872] not carryenough guns to fight the three members of the Drafting Committee , but I give fair notice that I shall15endeavor in the New South Wales Parliament to improve the drafting of this clause. Mr. Deakin, who is not amember of the Drafting Committee, will probably agree with me. There is no title known in the law as:

For such time as may be necessary.

In my position as Minister of Lands in New South Wales, when these Customs houses on the border have tobe disposed of, they will be sold through my department. I can give no title to the purchaser, because the20vesting is, so far as the State is concerned, for an indefinite period. I trust that, before we meet again, some of these legal cobwebs may have been swept away.

Mr. BARTON: My hon. friend says he does not carry so many guns as the Drafting Committee. but heseems to know more about drafting than they do. I leave him to enjoy the position.

Amendment agreed to; clause, as amended, agreed to.25END QUOTE.Hansard 20-4-1897 Constitution Convention DebatesQUOTE

Mr. BARTON: I have only to say this. If after the establishment of the Commonwealth the people are land nationalisers they will do30what my hon. friend suggests. If they are not land nationalisers we have no business to make them so against their will.

END QUOTE

Hansard 20-4-1897 Constitution Convention DebatesQUOTE35

Sir EDWARD BRADDON: I should not object to the clause so strenuously as I have done if it wereclearly shown that representation in this instance did not carry with it the voting power which we

generally understand accompanies representation. A representative is as well as being a speakingmachine, a voting one, and if Mr. Barton will say in the Bill that this representative or theserepresentatives are not to have votes, then my alarm will be dispelled. This is the fact as regards the40representation of colonies under the American Constitution, but we have nothing in the clause to showthat it is to be the fact here also.

Amendment negatived.

Mr. Wise's amendment was then put

Mr. HIGGINS: My feeling is in sympathy with Mr. Wise's general intention, but I am embarrassed with45the proposal at this stage. There is no doubt our duty is to frame a Constitution for Australasia, and inframing a Constitution we are giving the Federal Parliament power to acquire territory for the

purposes of the Federation. It must acquire territory belonging to private persons or to the Crown, and all





the resolution can apply to is as to what belongs to the Crown. It must deal with the lands under theConstitution, and I submit to my hon. friend, that his proposal is not constitution-making at all. Howeveradvisable it is to have no alienation in fee simple of these federal lands , and although we know there willbe an effort to boom the land when the federal capital is fixed, we are departing from the ambit of ourinstructions in the Federal Enabling Acts if we adopt the proposal now. Our duty is to frame a Constitution,5and for us to put in the Constitution something as to what is to be done with the property under theConstitution, is something which I cannot understand. I ask the hon. member to withdraw it. Rightly orwrongly, a great proportion of the people look with apprehension upon these views, and we do not want tofrighten the people from coming into the Federation.

Mr. WISE: It will have the opposite effect.10

Mr. HIGGINS: I feel as strongly as Mr. Wise as to the expediency of the policy indicated in his resolution,but I want to get Federation, and I do not want to deter a large portion of the people from [start page 1016]voting "Yes" if we get a working Constitution. Mr. Wise can tell his friends that we shall try to induce theFederal Parliament to accept this system. I think Mr. Barton has struck the nail on the head when he said itwas not a matter to be considered in framing a Constitution. In framing the Constitution power is given to15acquire Crown or private lands by the Federal Government, but at the same time, what is to be done bythe Commonwealth is not a matter of Constitution framing.

Mr. TRENWITH: I differ from my hon. friend on this question, as I think it is desirable that weshould, if we can, put a provision in the Constitution that the lands of the Commonwealth shall alwaysremain the lands of the Commonwealth. We have bad ample evidence of the unwisdom of selling lands

20 in fee simple in all of the States. We have had several very remarkable instances in the colony of Victoria-quite recently, where from time to time land was required for public purposes . All the land hasbelonged to the people of the State, and when it is sought to be acquired for public purposes , it is alwaysfound that the people have to pay very high prices for that which should never have departed from them, andwe are continually embarrassed with the difficulty. The railways are notoriously non-paving from a book-25keeping point of view, and it is altogether because of the fact that in the early days we alienated a largeamount of the public lands, and when we required them for public purposes we had to pay private personsinordinate prices. I feel I should not be doing right in discussing this question at the length it deserves, but Ifeel bound to urge one or two reasons why it would be right to put it in this Constitution at any rate at thisstage, even if it were struck out subsequently. Mr. Higgins points out that in the Constitution Act we have30there are provisions for the sale, letting, or otherwise dealing with Crown lands, and therefore it isunwise to to put in this Constitution that they should not be sold. Now clearly there is no departure from

the Constitution to which he refers. Supposing we only made a provision for letting the lands we have onlydone the same thing in a different degree as has been done in the Constitution to which he referred . It hasbeen said that if the people cannot acquire the fee simple of the land they will not develop it to the same35degree as they would if they could acquire it. We have been able in Victoria to furnish an object lessonin this connection. We recently passed an Alienation Act to which we attached clauses providing for theperpetual leasing of land subject to a re-valuation every ten years. We find that that land known as themallee country in Victoria is being taken up very largely indeed under that system. affording to theagriculturist an opportunity of using the land for agricultural purposes, and leaving to the State perpetually40such unearned increment as may from time to time accrue. We all know that unexpected developments takeplace and land is inordinately increased in value, not through any effort of the person using it, but throughsome extraneous circumstances over which he has no control, such as the discovery of a goldfield, or thedevelopment in the locality of some form of production which was not thought to be likely at the time it wasalienated. The mallee land of Victoria was thought a few years ago to be absolutely worthless, and the45

difficulty was not to get people to buy it, but to stop on it at all, in order to destroy the rabbits and keep themfrom overrunning the adjoining lands. But quite recently, through two inventions, the land has becomeamongst the most valuable, the most easily worked, and the most remunerative in the colony, and if it hadbeen alienated at the price that could be got for it a little while ago it would have been giving away the land toa few lucky people. If this clause is put in the Constitution now it will give us an opportunity of ascertaining50what is the feeling of [start page 1017] the Parliaments that will have to deal with the Bill. It will give us anopportunity of learning the opinions of the people through the press.

END QUOTE

Hansard 22-4-1897 Constitution Convention Debates55QUOTE

Clause 84.-All lands, buildings, works, and materials necessarily appertaining to, or used in connection with,

any department of the Public Service the control of which is by this Constitution assigned to the





Commonwealth, shall, from the establishment of the Commonwealth, be taken over by and vest in theCommonwealth, either absolutely, or, in the case of the departments controlling customs and excise andbounties, for such time as may be necessary.

The fair value thereof, or of the use thereof, as the case may be, shall be paid by the Commonwealth to theState from which they are taken over. Such value shall be ascertained by mutual agreement, or, if no5agreement can be made, in the manner in which the value of land, or of au interest in land, taken by theGovernment of the State for the like public purposes is ascertained under the laws of the State at theestablishment of the Commonwealth.

Mr. BARTON: This clause as it stands, as military and naval departments have to be transferred, would notinclude vessels, which would no doubt have to be transferred also. I have used the comprehensive term10vessels, which will com- [start page 1204] prehend everything that is likely to go over.

Mr. PEACOCK: You do not want the vessels to go over?

Mr. BARTON: I do not mean "upset." I want the first part of the clause to read:

All lands, buildings, works, vessels, materials, and things necessarily appertaining to.

Sir GEORGE TURNER: That's broad enough.15

Mr. BARTON: I move:

To insert the word "vessel" after the word "works."


Mr. BARTON: I move:

To omit the word "and" before the word "materials," and insert after the word "materials" the words "and20things."


Mr BARTON: I now move: To strike out the word "assigned" and insert "transferred."


Clause as amended agreed to.25END QUOTE.Hansard 25-1-1898 Constitution Convention DebatesQUOTE

Discussion was resumed on clause 52 (Powers of the Parliament).30

[start page 151]

Mr. BARTON (New South Wales).-I had it in my mind to suggest a new sub-section to follow sub-section

(31), and to be called sub-section (31A). Honorable members will notice that clause 86 provides that all landsand other property used in connexion with any department of the public service , the control of which is takenover by the Commonwealth, is to vest in the Commonwealth. But that is only in respect of those35departments which are taken over, and it is only at the time of taking over. Further needs are notprovided for in any way.

Mr. ISAACS .-Of these departments?

Mr. BARTON .-No, of the Commonwealth. The Commonwealth has no power under the Constitutionexcept as conferred by that clause.40

Mr. ISAACS .-Will not sub-section (37) of clause 52 cover it?





Mr. BARTON .-We thought of that. The question is whether it is sufficiently clear that that provision wouldgive the Commonwealth power to legislate for the resumption of lands.

Sir GEORGE TURNER .-There is another clause relating to the acquisition of any part of theterritory of a state.

Mr. BARTON .-There is clause 53. Then there is clause 105, which gives the Parliament of a state5power to surrender any part of the state to the Commonwealth . There is no express provision in theConstitution for the acquisition by the Commonwealth of any property the acquisition of which might

become necessary. It has been suggested to me that subsection (37) of clause 52 might give a sufficientpower of legislation for that purpose, but there is a doubt on the subject. I would suggest that the followingnew sub-section be inserted after subsection (31):-10

The acquisition of property on just terms from any state or person for the purposes of theCommonwealth.

I would like to hear the views of honorable members as to whether they think sub-section (37) is sufficientlycomprehensive.

The CHAIRMAN .-Does the honorable member move the new sub-section? There must be something15before the Chair.

Mr. BARTON .-I will move it pro forma . I can withdraw it afterwards if discussion shows that it should bewithdrawn.

Dr. QUICK (Victoria).-I was about to draw attention to the matter to which the leader of the Convention hasreferred. In the Constitutions of Canada, Switzerland, and the United States express power is given for the20acquisition by the Federal Government of lands for public purposes . It has been suggested that the generalpower given would cover this, but I do not think that that is so. At any rate, in the United States Constitutionthere is a provision that the Congress shall have power to exercise authority over all places purchased by theconsent of the Legislature of the state in which the same shall be for the erection of forts, magazines,arsenals, dockyards, and other needful business. Under the Constitution of Switzerland, on payment of a25reasonable indemnity, the Confederation has the right to use or acquire drill grounds and buildings intendedfor military purposes within the Cantons, together with the appurtenances thereof. It is so also in Germany,where the Constitution says that the right to construct fortresses within the territory of the empire shallbelong to the Emperor , who shall ask for the appropriation of the means required for that purpose, if notalready included in the regular appropriation. In Canada, the Constitution provides:-30

The several provinces shall retain all their respective public property not otherwise disposed of in this Act ,subject to the right of Canada to resume any lands or public property required for fortifications or for thedefence of the country.

In these Constitutions there is a general section giving express powers for the acquisition of property whichmay be [start page 152] required for the purposes of the Commonwealth . In this Bill there is only a35power to take over existing buildings.

Mr. BARTON .-And property at present in use.

Dr. QUICK.- Yes. There is no power to acquire the land of any state , say, for the purposes of a federal

court-house or a federal custom-house .Mr. ISAACS .-If that is necessary, for the purpose of the Federal Judicature it is all included in sub-section40

(37).

Dr. QUICK.-It is very doubtful whether, a general provision of that kind would give this express power.Then there is no machinery in that clause for determining the mode in which the Commonwealth is to acquirethe land of a state.

Mr. BARTON .-Clause 53 does not give a power for the acquisition of land. It simply sets out that45authority shall be exercised over it when it is acquired.

Dr. QUICK.- The Commonwealth would be crippled in its future operations if express power were notgiven in the manner suggested.





Mr. GLYNN . (South Australia).-I think that the new sub-section should be inserted. I had intended movinga similar amendment in connexion with clause 53. Under sub-section (2) of that clause, the exclusive poweris limited to any territory acquired by surrender from the states , but no power is directly given toacquire territory, or, having acquired it, to exercise exclusive jurisdiction over it. According to theAmerican decisions, subsection (37) of clause 52 would not cover what is required. In Sheppard's5Constitutional Text Book reference is made to a provision in the American Constitution similar, to sub-section(37), and it is stated-

This clause does not in terms grant any new power or enlarge or diminish any of the powers elsewhere

granted. It simply authorizes Congress to make use of such particular means as may be necessary or proper inorder to execute the general powers conferred by the Constitution upon the Federal Government or any10department or officer thereof.

There being no power given to acquire territory, clause 53 would not cover the ground that is soughtto be covered by the proposed new sub-section.

Sir GEORGE TURNER (Victoria).-I am not at all satisfied that it would be advisable to insert this newsub-section. It comes on us somewhat as a surprise, and I would like to have further time to consider the15effect of it. It might enable the Commonwealth to run the states into enormous expenditure. The leader of theConvention will see that whatever property has to be acquired will probably be acquired out of states money.The states have to collect a certain amount of Customs-at least the Commonwealth will collect a certainamount of Customs, and the surplus will be handed over to the states. If we increase these powers of

purchasing property we may enable the Commonwealth to incur enormous expenditures. I think it is shown20 by some notes I have with regard to Canada and other places that that has really been the result of a power of this kind. If it were so here the states Treasuries would be the sufferers.

Mr. OCONNOR .-Their functions are much more extended.

Sir GEORGE TURNER .-I know that, but still the honorable member will recognise that where thereis a power, the body having that power would probably extend it to its utmost limit. If they go a little25further than we intended, or a little beyond that strict reading of the Act, how are we to stop them?

Mr. BARTON .-One answer to that is that if you give this power to acquire landed property on just terms,you would have the compensation regulated by the provisions of an Act which would probably involvearbitration or the verdict of a jury . If, on the other hand, you allowed the acquisition to be carried out bycontract, as it would have to be without a clause of this kind, it would be more expensive, and would entail a30greater diminution of the surplus returned to the state.

[start page 153]

Sir GEORGE TURNER .-I should object to the use of the words just terms" on the ground that theyare not proper words to put into the Constitution. We assume that the Federal Parliament will actstrictly on the lines of justice. But what I desire to say is that this has come upon us a surprise. We did35not know that this amendment was to be moved , and we have had no opportunity of considering itseffect. The object of the leader of the Convention may be a good one, but I would urge upon him toallow the matter to remain in abeyance If he would intimate that he would either recommit the clauseor deal with it on the report, and he would in the meantime circulate the amendment he would give usan opportunity of making inquiries and ascertaining what the probable effect of the amendment would40be. We might then be able to meet his views. I would urge him not to press the new sub-section at the

present time, because that would be rather unfair to us , seeing that we have not had an opportunity of considering it.

Mr. I.A. ISAACS (Victoria).- I would join with Sir George Turner in asking that a little time be givenfor the consideration of this amendment . I would draw Mr. Barton's attention to the fact that acquisition45would mean compulsory acquisition-that is, acquisition by the Commonwealth against the will of the state,which would reverse the principle. that has been adopted in the Bill that a state should not be compelled togive up any portion of its territory. Clause 105 provides that the Parliament of a state may at any timesurrender any part of the territory of that state to the Commonwealth.

Mr. BARTON .-That clause requires a separate Act for every acquisition of territory by the50Commonwealth.





Mr. ISAAC.- Yes. What I wish to point out is that we must be careful that we do not in this rough-and-ready fashion bring about the reversals of principles already laid down in the Bill. Clause 53 embodies aprovision which exists in the United States Constitution:-

The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws forthe peace, order, and good government of the Commonwealth with respect to the following matters:-. . . . . . . .5.

II. The government of any territory which by the surrender of any state or states, and the acceptance of the

Commonwealth, becomes the seat of government of the Commonwealth, and the exercise of like authorityover all places acquired by the Commonwealth, with the consent of the state in which such places are situate,for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of 10general concern.

That provision makes the fullest recognition of the right of the Commonwealth to acquire lands, with theconsent of the states, for any purpose of general concern . If we are to reverse that position we ought not todo it hastily, and if it is the desire of honorable members to insert this sub-section, the Bill must be alteredvery materially in several respects. For these reasons, I would ask that a little more time be given to us for the15consideration of the matter.

Mr. BARTON (New South Wales).-I shall be perfectly willing to adopt the suggestion which has beenmade upon the understanding that at some future time I shall propose a sub-section similar to this, or theinsertion of a new clause of similar effect in some other part of the Bill. It has been suggested to me that thesub-section might be inserted now, but upon the understanding that I shall assent to a recommittal if there is a20desire on the part of honorable members to consider the matter further. The 2nd sub-section of clause 53 isnot intended to confer powers at all. The sub-section only gives to the Federal Parliament exclusivepowers of legislation in regard to the government of territory which has been acquired by theCommonwealth for military and other purposes.

[start page 154]25

Mr. ISAACS .-Taken in conjunction with sub-section (37), it would put the federal authority in thesame position as the federal authority of the United States occupies.

Mr. BARTON .-When you hand over such powers as are included in the naval and military defence of theCommonwealth, you unfairly and unwisely restrict those powers, if you make it necessary to procure separatelegislation for the acquisition of any lands required for the purposes of defence, because you make the30federal authority subject to the dictation of the state authority in regard to each transfer. This convinces methat power must be given to the federal authority not to acquire lands compulsorily , but to legislateupon the subject as I have suggested in the sub-section. However, if honorable members prefer that thesub-section should be withdrawn, I shall consent to that course upon the understanding to which I havealready referred.35

The sub-section was withdrawal.

END QUOTE

Hansard 28-1-1898 Constitution Convention DebatesQUOTE40

Dr. COCKBURN (South Australia).- I would like to be quite sure that in making any improvements indrafting we do not really make any important alteration in substance.

Mr. ISAACS .-There is an important alteration; it may be right, but it is important.

Dr. COCKBURN .-I think there is. It is quite right that the Federal Parliament should have no powerwithout the consent of the state concerned to take territory for its capital, for example. I think the consent of 45the state should be required in that case, although in most cases I do not think there would be very muchtrouble about it.

Mr. BARTON .-If you refer to clause 105, you will see that it can only be done with the consent of thestate.





Dr. COCKBURN .-On the other hand, Sydney might object to have her harbour and 10 miles roundabouttaken away by the Federal Parliament, and its administration withdrawn from the local Government.

Mr. BARTON .-Clause 105 is quite clear on that point.

Dr. COCKBURN .-I would like to be sure of that. Would there not be some right of pre-eminent powers inthe Federal Parliament, unless it was restricted by this Act, to take any land anywhere it chose?5

Mr. ISAACS .-Yes; so there ought to be.

[start page 258]

Dr. COCKBURN .-I do not think there ought to be. Whether or not there ought to be is a matter fordebate and for settlement by this Convention as a question of principle , and not as a mere matter of wording.Now, take the second part of the sub-section, in which power is given with the consent of the state for the10construction, say, of a quarantine station. I question very much whether the power to establish such astation as a leper station, for example, ought to be given to the Federal Parliament without having toconsult the wishes of the state in which it is proposed to establish such an institution. The FederalParliament will be a distant body, and it may not be exactly apprised of all the local conditions. It may want toestablish a leper station in some part of Australia where its establishment would be most disastrous to the15interests of the communities in the vicinity, which ought, I think, to have a voice in a matter of this sort.These words are put in to make it abundantly clear that the federal capital shall be chosen only with theconsent of the state concerned, which consent would, of course, be given in most cases. I should like to havethe matter I have referred to made perfectly clear. It is open to doubt at present, I think, whether theFederal Parliament will have power to take any land for the purposes of government without the20consent of the state concerned. I do not think the Federal Parliament should have such a power, and Ishould be sorry to see it have such a power by the mere insertion of certain words which were notintended to have that meaning. I should like this committee to be clear as to whether or not it isintended that the Federal Parliament should have power to take land from any state without theconsent of the state.25

Mr. OCONNOR (New South Wales).- I think the honorable member who has last spoken is quiteright; but there is a great distinction between the two classes of matters dealt with in this sub-section. Ithink that the seat of government of the Commonwealth ought to be in quite a different position to suchmatters as the construction of forts, magazines, arsenals, dockyards, and so on. Dr. Cockburn willrecollect that there is no such power for the acquisition of land for the ordinary public purposes of the30Commonwealth.

Dr. COCKBURN .-Might not the power be included in the general powers of sub-section (37)?

Mr. OCONNOR .-No. The only powers that can be held to be given are those which are expresslygiven. It will be wise, later on, to add a clause which I think the Convention will see the advisability of adding, restricting the power to acquire land to acquisition for the public purposes of the35Commonwealth ; and I think it should then be made very clear that no power is given in that clause toacquire land for a federal capital without the consent of the state interested. Because it is quite clear,from the nature of things, that it is quite impossible that a power of that kind could be carried outwithout such an amount of friction and difficulty as might lead to a great deal of trouble.

Mr. HIGGINS .-Why should not the Federal Parliament buy land from a private owner for the purpose of 40an arsenal without the consent of the state?

Mr. OCONNOR .-Exactly so. I do not think the honorable member apprehends what I am saying. I admitthat for all such purposes the Commonwealth would have the power either to purchase or to acquirecompulsorily on fair terms.

Mr. HIGGINS .-Without the consent of the state?45

Mr. OCONNOR .-Undoubtedly; because in regard to defence there should be a paramount power forthe Commonwealth to act as might be thought necessary, and there should be a similar power withregard to quarantine and other matters which are of general concern. But with regard to the acquisitionof a piece of land for the seat of government, which must [start page 259] embrace a large area and be anexceedingly important matter for the state in which it is situated, the Commonwealth should not have power50





to obtain such land without the consent of the state. That can be dealt with when we are dealing with thegeneral clause, giving power to acquire land for the use of the state.

Mr. HIGGINS .-Does not clause 105 answer that objection?

Mr. OCONNOR .-No; that is simply a permissive power to the Parliament of the state to surrender anyportion of its territory.5

Mr. ISAACS .-And saying what shall happen if they do.

Mr. OCONNOR .-Quite so; but that clause does not deal with the question as to whether theCommonwealth may acquire land for any purpose.

Mr. SYMON .-Is that power of the state necessary in this Constitution at all?

Mr. OCONNOR .-I do not know that it is.10

Mr. SYMON .-I think it is an interference.

Mr. OCONNOR .-Of course the state can deal with its own territory, except that when it does surrenderland for the purpose of the Commonwealth, that land will, according to the latter part of clause 105, "besubject to the exclusive jurisdiction of the Commonwealth." That may be necessary. The state may have nopower to give up exclusive jurisdiction over any portion of its territory, and it is just as well to clear that up.15What I rose to point out on this matter was that in dealing with the question of the acquisition of land, thepoint raised by Dr. Cockburn should be considered. I do not think that the matter is affected one way orthe other by the words which are the subject of the present amendment, because all territory will beacquired lawfully under the Constitution, and it is territory acquired in that way which is dealt withunder this sub-section. This is not the proper place to indicate how the property is to be acquired. That20matter must be dealt with by another place; so that it does not matter whether the words, "by thesurrender of any state or states and the acceptance of the Commonwealth," are here or not. I think, asa matter of logical arrangement and drafting, all that need be dealt with here is the matter of handingover, and we can deal with how the territory should be handed over in some other way.

Mr. BARTON (New South Wales).-It has occurred to me since I previously spoke that there was a25consideration which might make it wise not to carry this amendment now. Apart from other questions whichhave been raised, I think there is a question of construction which should suggest to us not to make the

amendment at present. It is plain that the Commonwealth should have the power of exclusive government of any territory taken over for the purpose of government, when it becomes federal territory. But suppose theCommonwealth follows Canada, and the seat of government does not become a federal district, such as30Washington has become in the United States, then the ordinary power of local Government would existwith regard to that place.

Mr. ISAACS .-Including the local laws with regard to crime.

Mr. BARTON .-Yes, police matters would be included. If the Commonwealth undertakes thegovernment of a piece of country only 10 miles square , it must completely govern that country,35including the establishment of its own force of police. If it follow the Canadian precedent, the ordinaryoperations of provincial Government subsist there, and it is only the exclusive powers of Government whichare exercised. If we leave out these words, there might be implied a power to assume the whole government

in the place which might be made the seat of Federal Government, whilst without an authorization of that sortit would not be necessary for the Commonwealth to assume governing power over it all. The original40provisions of the Bill would appear at first [start page 260] sight to be probably wiser than the suggestionmade, which confines a power of exclusive government to any place which becomes the seat of government.So that, subject to what any honorable member may say, I feel inclined to withdraw the amendment, at anyrate for the present.

Mr. ISAACS (Victoria).-I think the leader of the Convention is right in withdrawing this amendment. I will45point out why. We have now reached a subject which is full of consequence to us all, move especially inrespect to one or two points with which Mr. O'Connor dealt. This sub-section is to a large extent based uponthe American Constitution, Article 1, section 8, clause 17, and the object of giving this exclusive jurisdictionto certain limited cases, namely, in the case of territory acquired by the Commonwealth with the consent of the state, is very plain. There is, no doubt, in the first place, that the United States Government is, and the50

Commonwealth Government here will be, a Government of limited, of enumerated powers; but as to these





powers, the Commonwealth Government will be supreme, and for the purposes of these powers-foreverything necessary and incidental to them-it will be unlimited in its acquisition of means to carry out thosepowers.

Mr. WALKER .-Yes, by sub-section (37) of clause 52.

Mr. ISAACS .-And even independent of that provision. It has been held over and over again in the United5States that it is one of the attributes of sovereignty that the Supreme Government shall be unfettered incarrying out the powers intrusted to it, and for the purpose of carrying out those powers it has the right to

acquire land compulsorily. No express power is given in the United States Constitution, and the SupremeCourt of that country has held that no express language is necessary. That power was exercised for the firsttime, I think, in 1875, but it has since been exercised, beyond all doubt, on several occasions.10

Mr. REID .-For what purposes?

Mr. ISAACS .-For public purposes -only for the purposes committed to it by the Constitution .

Mr. HIGGINS .-In the Constitution of the United States there is a general power given for all purposesincidental.

Mr. ISAACS .-Oh, the same as we have here.15

Mr. KINGSTON .-Is not the supremacy of the United States Government a little different from the

supremacy of our proposed Federal Government?

Mr. ISAACS .-Not in this respect. The supremacy, as far as the powers committed to it are concerned,would, in this respect, I apprehend, be exactly the same as the Supremacy of our Commonwealth Governmentin relation to its powers. In the case of Kohl v. United States , which was decided in 1875, on this very20question of the right of the United States Government to compulsorily take property within the state for itspublic purposes , the court said this:-

It has not been seriously contended during the argument that the United States Government is without powerto appropriate lands or other property within the states for its own uses, and to enable it to perform its properfunctions. Such an authority is essential to its independent existence and perpetuity. These cannot be25preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of themeans or instruments by which alone governmental functions can be performed. The powers vested by the

Constitution in the General Government demand for their exercise the acquisition of lands in all the states.These are needed for forts, armories, and arsenals, for navy yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses; If the right to acquire property for such uses may be30made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting asale to the Federal Government, the constitutional grants of power may he rendered nugatory, and theGovernment is dependent for its practical existence upon the will of a state, or even upon that of a privatecitizen . This cannot be. No one doubts the existence in the state Governments of the right of eminentdomain-a right distinct from and paramount [start page 261] to the right of ultimate ownership. It grows35out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, thoughthe lands are not held by grant from the Government, either mediate'y or immediately, and independent of theconsideration whether they would escheat to the Government in case of a failure of heirs. The right is theoffspring of political necessity; and it is inseparable from sovereignty. unless denied to it by its fundamentallaw. Put it is no more necessary for the exercise of the powers of a state Government than it is for the exercise40of the conceded powers of the Federal Government. That Government is as sovereign within its sphere as thestates are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its powerover those subjects is as fall and complete as is the power of the states over the subjects to which theirsovereignty extends. The power is not changed by its transfer to another holder.

Then the court went on to say-45

But, if the right of eminent domain exists in the Federal Government, it is a right which may beexercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it bythe Constitution.

The whole judgment proceeds in that way. It has been followed in several cases, and I think it has been laiddown more than once in express terms that, for the purpose of carrying out the powers expressly given to the50

federal authority in the Constitution, the right of eminent domain is an essential attribute, and therefore I do





not entertain the slightest doubt that, as in that case, and as in several other cases, the United StatesGovernment has, even without the consent of the state, taken land so far as it was necessary for the exercise of its public duties, we should have the same right here. I will now proceed to show the meaning of this sub-section . This sub-section does not say that the Federal Government is to have the power to take thatland. It assumes that the Federal Government has that power, but when the Government does take5land, compulsorily or by purchase, in a state as its possession, it takes that land certainly by virtue of itssovereign power of eminent domain, that is, the highest dominion. But it does not hold that land assovereign, it holds the land as proprietor. Now, where it holds the land merely as proprietor, withoutthe consent of the state being given to it, it is quite plain that the jurisdiction of the state should run,

except, of course, so as not to interfere with the performance of the governmental functions of the10 Federal Government. But, as far as punishing crime is concerned, as far as any other ordinary statesupervision relates, not inconsistent with the performance of the supreme functions of theCommonwealth, the ordinary state law will run. But the United States have provided, and we, Iunderstand, propose to provide here, that, where the state consents to the Federal Governmentacquiring any land, either by purchase or compulsorily, it thereby consents, and that consent is15equivalent to the admission of the right of the Federal Government to exercise exclusive jurisdiction inrespect to that particular portion of territory. And if the state does not choose to give its consent, itsays, in effect-"You may take this land, it is true, by virtue of your sovereign right, for your sovereignpowers, but you hold it as proprietor; you can carry on your post-office, your court-house, or anythingyou please, but as regards ordinary state laws outside those functions our state laws prevail. Where the20state, however, is asked by the Federal Government to consent to the excision of a piece of land from itsown territory for governmental purposes, and does consent, then the exclusive right of the Federal

Government to govern that portion of land attaches to it, and this is what the sub-section we are nowconsidering intends to enact. Therefore, I think that the leader of the Convention is right in not pressing thisamendment, and that we should be doing well to keep in the words "with the consent," because it does not25relate to the acquisition of property, but to the exercise of jurisdiction over the property when it is acquired.

The amendment was withdrawn.

Mr. BARTON (New South Wales).-In the sub-section which we are just about to [start page 262] disposeof the Drafting Committee suggested, and the Convention accepted the suggestion, to leave out the word"other" in the expression " or for any other purpose of general concern. " I think it is a very proper30amendment to make. It will restore the matter to the condition in which honorable members found it in theirBills as printed. I beg to move-

That the word "other" be omitted from the sub-section.The amendment was agreed to, and the sub-section, as amended, was adopted.

Sub-sections (3) and (4) were agreed to.35END QUOTE.Hansard 16-2-1898 Constitution Convention DebatesQUOTE

Mr. ISAACS .-If it is raised by taxation, the people will not be prepared to raise £10,000,000 in addition to40the ordinary expenses of government both of the states and of the Federation. It would be so burdensome thatit could not be borne. It is a matter which ought to be looked at by the committee. There is another viewwhich the Drafting Committee might, I think, take in the framing of this clause. There is, I understand, nowunder their consideration the question whether a clause should be put in enabling the Commonwealth toacquire property. In connexion with that, no doubt they will consider the question of eminent domain , and45how far the power intended to be given by this clause exists independently of that. When this clause comes tobe refrained I hope the committee will give attention to this aspect of the case-that it should be framed only interms by which the power of eminent domain , which is inherent in the sovereign power, will not be limited.

END QUOTE.50Hansard 4-3-1898 Constitution Convention DebatesQUOTE

Mr. OCONNOR (New South Wales).-I beg to move the insertion of the following new sub-section:-





The acquisition of property on ju st terms from any state or person for any purpose in respect of whichthe Parliament has power to make laws.

Some question has been raised as to whether the Commonwealth has the power inherently of acquiring property under just terms of compensation; that is to say, whether it is not driven to bargainand sale only. It is quite clear that there must be a power of compulsorily taking property for the5purposes of the Commonwealth.

Mr. FRASER .-Certainly.

Mr. OCONNOR .-And this clause is framed to provide for that.

Mr. FRASER .-Are the terms to be stated?

Mr. OCONNOR .-No, you do not want to state the terms in the Constitution. Of course an Act will have10to be passed by the Commonwealth Parliament elaborating this enactment, and no doubt properprovision will be made in that Act for the method of acquiring lands, and the mode in which lands shallbe obtained for the purposes of the Commonwealth.

The new sub-section was agreed to.

Clause 52, as amended, was agreed to.15

Clause 53, subsection (2).-The government of any territory which, by the surrender of any state or states, andthe acceptance of the Commonwealth, becomes the seat of government of the Commonwealth, and theexercise of like authority over all places acquired by the Commonwealth, with the consent of the state inwhich such places are situate, for the public purposes of the Commonwealth.

Mr. OCONNOR (New South Wales).-I beg to move-20

That the words from "with the consent of the state in which such places are situate" (line 7) be struck out.

The object of this amendment is to put in the most general possible terms the purposes of the clause.The clause gives a right of government for certain purposes to the Parliament, and it is just as well thatit should be stated in such general terms that it will not be possible that any purpose which we do notthink of now will be omitted.25

The amendment was agreed to.

END QUOTE.Hansard 4-3-1898 Constitution Convention DebatesQUOTE30

Sir JOHN FORREST .-We wanted to have it done with the consent of the state.

Mr. BARTON .-The feeling of the committee was this, that those things which were exclusively used forthe department transferred should go over at once to the Commonwealth, while those that were notexclusively used might be left to an agreement between the Commonwealth and the state, that is to say,that there should be an option. We have provided for an option.35

Sir JOHN FORREST .-How?

Mr. BARTON .-It is also provided-and, I think, with the generally-expressed desire of honorable members-that, instead of the Commonwealth having to pay the "fair value," which might mean the value in cash, thematter may be arranged between the parties, and, in the failure of any agreement, according to the provisionsof an Act passed by the Parliament. The substance of the new clause is that, when any department or service40is transferred to the Commonwealth, either at once, as in the case of the Customs and Excise department, or asprovided for under clause 69, if the property transferred is used exclusively for the service transferred it shallbecome vested in the Commonwealth but in the case of the departments controlling customs and excise andbounties, only for such time as the Governor-General in Council may declare to be necessary. That is the onlyway in which we thought that the matter could be provided for.45





Sir GEORGE TURNER .-Will the provision in the clause enable the Governor-General to make adeclaration at any time?

Mr. BARTON .-I was coming to that. My right honorable friend will see that it will be necessary for theCommonwealth to pay the value of this property in some form or other, if not in cash, perhaps in [start page1903] stocks or bonds. The Governor-General must therefore, as a matter of practical necessity, declare5for what tune the property is to be taken over by the Commonwealth in order that its value may beascertained. As regards the property of a state used in connexion with the department or service which hasbeen transferred to the Commonwealth, but not used exclusively by the Commonwealth, it is provided that its

value shall be ascertained by agreement between the parties, if possible, but if no agreement can be cometo, the value must be fixed according to the provisions of the Lands for Public Purposes Acquisition10Acts, or corresponding Acts in force in the colon to which the property to be transferred belongs. Weprovide that the states shall be compensated by the Commonwealth for property which passes under theclause, but if no agreement can be come to as to the manner of compensation, it shall be determined by a lawpassed by the Commonwealth Parliament.

Mr. HIGGINS .-But the Commonwealth Parliament will be one of the parties to the purchase.15

Mr. BARTON .-No; the Executive Government will be a party to the purchase. There must be someauthority to determine the mode of compensation. It is the second sub-section which provides for theascertaining. of the value. A separate sub-section makes provision for the manner of the compensation, that isto say, whether the compensation shall be in cash or bonds, or in some other way. Clearly, the High Courtcould not determine a matter of that kind. It is a matter of political arrangement between the

20 Commonwealth and the state .

Sir JOHN FORREST .-Will it be optional with the state to say whether property shall or shall not behanded over?

Mr. BARTON .-If my right honorable friend will look at sub-section (3) he will see that it is not thestate but the Commonwealth which has this option. Of course, the Commonwealth, as a general rule,25will not take over property except such as is to be exclusively used for a service that has beentransferred to it.

Sir JOHN FORREST .-The clause does not contain the words "with the consent of the state."

Mr. BARTON .-That is so, but you cannot carry a, sale into effect without knowing the price. The

price is a condition to be determined before the sale is made.30Sir JOHN FORREST .-I thought that where property was not to be used exclusively by the

Commonwealth there was to be no absolute power in the Commonwealth to take it over.

Mr. BARTON .-I understood that the feeling of the committee was that the Commonwealth shouldhave the option of saying whether it would or would not take over any property, but that the stateshould be able to arrange with the Commonwealth as to the price to be paid for any property taken35over. If the parties cannot agree, the price is to be determined according to the law of the state inregard to the acquisition of property for public purposes .

Mr. KINGSTON .-Is there any special reason for providing for two special modes of ascertaining the valueof property?

Mr. BARTON .-There is no attempt to provide for two different modes of ascertaining the value. The40second sub -section provides for the ascertaining of the value , while the third sub-section provides onlyfor the manner of the compensation. That was one of the most difficult clauses in the Bill to redraft,because of the very nature of its provisions. There are the three cases to be considered. There is theproperty exclusively used for a transferred service; that goes over to the Commonwealth absolutely ,except in the case of departments controlling customs and excise and bounties, in which case it goes45over to the Commonwealth only for a time to be declared by the Governor-General in [start page 1904]Council. Then you come to the ascertaining of the price where property is used by the Commonwealth,but not exclusively used by it, in connexion with any transferred department or service. In this case thevalue is to be ascertained by agreement, or, failing that, by the ordinary law in force in the state for theascertaining of the value of property acquired by the Government for public purposes .50

Sir JOHN FORREST .-The Commonwealth might take a quarter or half of a building.





Mr. BARTON .-I do not think that is likely. There would probably be some arrangement made by whicheither the state or the Commonwealth would take over the whole building. Then we come to the manner of compensation, which is to be decided by agreement, if possible, but, if no agreement can be come to, bythe provisions of an Act passed by the Parliament of the Commonwealth. I strongly object to any onebeing a judge in his own cause, but in this case you do not allow one of the parties to determine his own5cause, because the Parliament of the Commonwealth will not be a party to the transaction, but a body inwhich all the states will be represented . The fourth sub-section deals with that part of clause 69 to whichthe honorable and learned member (Mr. Higgins) objected. At his instance, I consented to agree to thestriking out of the last two words of that clause. The provision finds its proper place in this clause,

where there is a distinction between the price and the liabilities taken over.10Mr. ISAACS .-Do the words "any property passing to the Commonwealth," which occur in sub-section (3),

include property dealt with in sub-section (2)?

Mr. BARTON .-The third sub-section provides for the manner of compensation in regard to any propertypassing to the Commonwealth. The matter was the subject of a long debate here. Honorable members, theRight Hon. Sir George Turner amongst them-suggested that the value need not necessarily be paid in cash,15but that there might be some provision for an arrangement between the parties as to the mode of paying it.

Mr. ISAACS .-Ought you not to put in the words "manner of the payment of compensation"?

Mr. BARTON .-I think that the words "manner of compensation" are sufficient. The price will have beenascertained beforehand.

Mr. HIGGINS (Victoria).-May I ask the honorable and learned member a question in regard to a practical20difficulty? A custom-house is not an easy property to sell or to value. Is there not, therefore, need of aprovision defining the basis of valuation which is to be applied? I suppose a big building like the Custom-house in Sydney or Melbourne is not to be valued upon the basis of the receipts for the last few years?

Mr. BARTON .-I suppose not, unless my honorable and learned friend is going to suggest an amendment tothat effect.25

Mr. HIGGINS .-The question is one of great practical difficulty. You can value the land easily enough,but not the buildings.

Mr. BARTON .-The Acts dealing with the taking over of land in any state deal also with the taking

over of buildings, so far as I know.

Mr. HIGGINS .-Yes, but the value of a building like a custom-house, a state school, or lands titles30office, would depend very much upon the use to which it could be put.

Mr. BARTON .-There will be no good will to take over. I suppose that any authority wishing to arrive at avaluation would ask the question-"What did this building cost to build?" or "For what could a building of thiskind be built?"

END QUOTE35.The above indicates that clause 85 of the constitution (as it is now) was as to the value of theland and not about the underground minerals , etc..Hansard 4-3-1898 Constitution Convention Debates40QUOTE

Mr. HIGGINS .-The question is one of great practical difficulty. You can value the land easily enough,but not the buildings.

Mr. BARTON .-The Acts dealing with the taking over of land in any state deal also with the takingover of buildings, so far as I know.45

Mr. HIGGINS .-Yes, but the value of a building like a custom-house, a state school, or lands titlesoffice, would depend very much upon the use to which it could be put.

END QUOTE




A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE Y d b k i th INSPECTOR RIKATI® i b ki ti b f

The latter quotation also was why when I had notified the then Prime Minister John Howard heno longer proceeded to sell the land of Point Nepean to private enterprise as he became awarethen doing so would not relinquish the legislative powers from the Commonwealth and as suchwould remain to be Federal land. It was never intended that the Commonwealth would gainmineral rights of the land itself as the Framers of the Constitution indicated that the5commonwealth may over the years no longer require the buildings, etc, and it be then returned tothe States..

As the Framers of the Constitution stated it was about the “value of the land” and ordinary theminerals below the surface are not at all included in the purchase or sale price of land. Obviously10when land changes from being FEE SIMPLE to become “sovereign ” held land then theunderground minerals are part of this change. It must however be considered that unless it is for“public purposes ” acquisition cannot be justified. Hence, the purchase of land regarding theMurray-Darling rivers was unconstitutional, as it is not within the provisions of s100 of theconstitution. The Commonwealth v New South Wales [1923] HCA 34 is a case where the High15Court of Australia to some extend as I view it miscarried in its judgment. In Paliflex Pty Ltd vChief Commissioner of State Revenue (NSW) [2003] HCA 65 the High Court of Australia thenwas dealing with the purpose of the land as to if it were to attract State land taxes or not pendingif it was used for “public purposes ” or not. It did however miss the issue that states since 11November 1910 (When the Commonwealth created the Land Tax Office – The forerunner of the20ATO) no longer had any legislative powers as to raise State land taxes, but that is another issue Iwill not delve into now. It should be clear from the above that municipal/shire councils have noconstitutional validity either to sell of property of a rate payer either as this would be as if it had aconstitutional standing as sovereign over the land..25A closer look at the intentions of the Framers of the Constitution also shows that they held thatthe appropriation bills had to be equal to the taxes/customs/duties calculated to be raised for thesame year as to balance it all and any surplus be returned to the States. As such, not for thecommonwealth to invest in schemes as the former Treasurer Peter Costello reportedly did and itwas alleged he lost $5 billion in the gamble.30Municipal/shire councils are not to invest monies so to say for a rainy day, as they mustonly collect rates for projects it can legitimately become involved in for public purposes . fornow every municipal/shire council that has monies invested in shares or whatever shoulddispose of it and return the overcharges rates to the ratepayers or in the alternative reducethe rate notices as to return the surplus to nil.35.

MAY JUSTICE ALWAYS PREVAIL ®.

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

40

110615- ted baillieu premier - re rates-etc

Documents