Following are extracts from the Bills considered by the
Committee so far in 1995 which contain Section 85 provisions.
"This Bill was introduced into the Legislative Assembly
on 8 March 1995 by the Honourable Geoff Coleman MP with The Honourable
Bill McGrath MP.
This Bill removes several reservations over land described
in the Schedules to the Bill. It also makes other minor amendments.
Clause 3 revokes the reservation of land in Maryborough.
The Committee notes the comments in the Second Reading Speech:
"Clause 3 of the Bill deals with an area of
land at Maryborough reserved as a public park in 1863 under the control
of the city of Maryborough by virtue of a crown grant. Maryborough
golf club occupies an area of approximately 50 hectares at this location;
16.4 hectares of which is freehold land and the remainder crown land.
Maryborough golf club has occupied the land for approximately 85 years
and has expressed interest in acquiring the crown land portion of
the golf course. The Bill provides for the revocation of the permanent
reservation to facilitate the sale of the land.
The City of Maryborough supports the application
by the golf club and has agreed to the surrender of the Crown grant,
revocation of the public park reservation and sale of the land provided
its use as a public golf course continues. The sale will be subject
to a section 173 agreement under the Planning and Environment Act
1987, restricting use of the land to golf club purposes and controlling
land use."
Clause 4 revokes the reservation of land in Ballarat.
The Committee notes the comments in the Second Reading Speech:
"Clause 4 deals with an area of land located
to the North of Ballarat. The land is part of the Ballarat general
cemetery. This land was permanently reserved as a site for a cemetery
in 1879 and a Crown grant issued to the Ballarat general cemetery
trust. The Roads Corporation as part of its upgrade of roads associated
with the Western Freeway proposes to establish a roundabout at this
location. A small area of 572.8 square metres of the cemetery reserve
is required to accommodate the new intersection.
The Department of Health and Community Services and
the Ballarat General Cemetery Trust have agreed to the excision of
this small portion of the reserve which has not been used for burials.
The Bill revokes the permanent reservation and the crown Grant in
order to facilitate its use by the roads corporation."
Clause 5 revokes the reservation of land in Bendigo.
The Committee notes the comments in the Second Reading Speech:
"Clause 5 deals with an area of land located
in Bendigo which was permanently reserved for market purposes in 1878,
1889 and 1890. The area has been reduced by a number of excisions
and now covers approximately 8 hectares. The land is controlled by
the City of Greater Bendigo by virtue of a Crown grant. The grant
contains conditions that restrict the use of the land to the purpose
of the reservation and prohibit the sale of the land unless authorised
by a law enacted after the date of the grant. The land remains in
use as stockyards.
The land has been assessed as surplus to government
requirements. The Bill revokes the permanent reservations and the
Crown grant to enable the site to be sold to the City of Greater Bendigo
for future re-development."
Clause 6 deems the land to be unalienated land
of the Crown freed and discharged from all trusts and encumbrances and
revokes the appointment of any committee of management. Clause 7
gives the Registrar-General and Registrar of Titles the power to make
any necessary amendments to any records.
Variation of section 85 of the Constitution Act 1975
(Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act
1968)
Clause 8 provides that no compensation is payable
by the Crown in respect of anything done or arising under the Act. Clause
9 declares its intention to alter or vary section 85 of the Constitution
Act 1975 to the extent necessary to prevent the Supreme Court from awarding
compensation in respect of anything done under or arising out of this
Act. The Committee notes the comments in the Second Reading Speech:
"Clause 9 of the Bill provides that it is intended
to alter or vary the Constitution Act 1975 to the extent necessary
to prevent the Supreme Court from awarding compensation in respect
of anything done or under or arising out of the Bill. The reason for
preventing the Supreme Court from awarding compensation is as follows:
To enable the Crown to change the status of reserved
land, it is necessary to ensure that the land is no longer subject
to any interests and rights arising out of the former use. The existence
of these interests and rights and claims for compensation based on
them or on the former use of the land could delay or prevent a change
in the use or status of the land that is for the benefit of the community
as a whole. To facilitate future use of some of the land to which
this Bill applies, it is also necessary to revoke or excise from several
Crown Grants."
The Committee wrote to the Minister on 16 March 1995 seeking
his advice as to the following matters:
-
Are there any private legal interests which may be
affected?
-
If there are no private legal interests which may
be affected, is it necessary to use the clause in its current form
in the first instance/
-
Alternately, is it appropriate to insert a clause
which allows for clear title so that the Government can deal with
the land but allows for compensation if there are any interests
which may be affected?
After the letter was written, the Chairman consulted with
the Minister. That consultation led to the Committee writing a further
letter to the Minister and letters to the Attorney-General, Crown Counsel
and Chief Parliamentary Counsel with specific suggestions as to possible
methods of dealing with the issues raised by Section 85 clauses in general.
The Committee received a response from Mr Greg Craven, Crown Counsel
dated 4 April 1995. The relevant extract is set out:
"Thank you for your letter concerning the use
of privative clauses in connection with legislation dealing with reserved
land.
As I indicated to you in our telephone conversation
yesterday, I believe that there is something to be said for an approach
which secures the ability of Government to deal freely with land by
extinguishing all interests in that land, while preserving a right
to compensation in any affected person.
However, I make this comment subject to the following
strict reservations:
1. A section 85 clause would still be required if
the effect outlined above were to be achieved;
2. It would be imperative for the workability of
such a legislative approach that the relevant legislation did in fact
extinguish all interests in the land in question, and prevented the
taking of interlocutory and other proceedings with a view to frustrating
the Government dealing with the land;
3 . It would be highly desirable that practice in
relation to such clauses was, so far as possible, uniform across Government.
Nevertheless, such practice would have to recognise that there would
be certain circumstances (for example, where extraordinary complexities
of title were involved) where a no-compensation clause would be the
only responsible course.
4. Finally, and most importantly, any such legislative
practice should not be instituted without full and careful inquiry
by SARC. You will recall that amendments to section 32 of the Interpretation
of Legislation Act some years ago were made without proper consideration
of their full impact, and most unfortunate consequences ensued. The
potential for such unforseen consequences clearly would arise in connection
with the present proposal."
Following informal consultation, the Committee has resolved
to adopt the approach outlined by Crown Counsel. This will be communicated
to all Ministers in respect of Section 85 clauses and
enable the development of a Government approach.
The Committee received a letter from the Minister in respect
of its original letter to him dated 16 March 1995. The relevant extract
from the Minister's letter is set out:
"I refer to your letter dated 16 March 1995.
The provisions referred to are common to all Bills
of this type and are included to ensure that no actions for compensation
arise over changes in the status of reserved land. I am not aware
of private legal interests which are likely to be infringed by the
limitation of the Supreme Court's jurisdiction contained in the Bill.
The provisions are based on a desire to achieve sound
administrative practices and are not intended to unduly interfere
with the rights of any private person with an interest in the land."
"Variation of Section 85 (Section 4D(b)(i)(ii) and
(iii) of the Parliamentary Committees Act 1968
Clause 128 provides that no compensation is payable
to any person for any loss or damage as a result of the enactment and
the repeal of the Fisheries Act 1968. In particular it includes
the following:
-
the conversion of a licence or permit;
-
the failure of licensees to achieve their quotas or
otherwise take fish in accordance with any licence or permit;
-
the seizure, detention or forfeiture of any fish,
protected aquatic biota, declared noxious aquatic species, equipment
or property in accordance with this Act;
-
the making and carrying out of an order under section
79(4),ie: the authorised seizure and removal of noxious aquatic
species;
-
the suspension, cancellation or refusal to issue or
renew any licence or permit in accordance with the Act;
Clause 129 declares its intention to alter or vary
section 85 of the Constitution Act 1975 to the extent necessary to prevent
the Supreme Court entertaining actions of a kind to which section 128
applies. The Committee notes the Minister's explanation in the Second
Reading Speech:
"Clause 129 provides that it is intended to
alter or vary the Constitution Act to the extent necessary to prevent
the Supreme Court from awarding compensation for any loss or damage
as a result of the enactment of this Act and the repeal of the Fisheries
Act 1968. The reason for preventing the Supreme Court from awarding
compensation is as follows: The Crown intends to change the nature
of various types of fishing licences and permits but does not intent
thereby to affect unfairly the rights and interests of individual
licence and permit holders. The existence of these interests and rights
and claims for compensation based on them could delay or prevent a
change in the types of licence that are intended to benefit the community
as a whole and in particular the commercial fishing industry."
Clause 128(2)(c) provides that no compensation
is payable in respect of the seizure, detention or forfeiture of any
fish, protected aquatic biota, declared noxious aquatic species, equipment
or other property in accordance with the Act.
If such seizure, detention etc has been done by authorised
officers in accordance with the Act, why is it necessary to remove the
jurisdiction of the Supreme Court? On the face, it appears to be unnecessary
to remove the jurisdiction of the Supreme Court if in fact such seizure,
detention etc has been done by authorised officers in accordance with
the Act. The Committee wrote to the Minister on 17 March 1995.
Similarly, clause 128(2)(d) provides that no compensation
is payable in respect of the making and carrying out of an order under
section 79(4). Section 79(4) provides that noxious aquatic species may
be destroyed, even though other fish or aquatic species may also be
destroyed if the Secretary is satisfied of certain matters. Again the
same question may be asked. If such activities are authorised and carried
out in accordance with the Act, why is it necessary to remove the jurisdiction
of the Supreme Court? On the face, it appears to be unnecessary to remove
the jurisdiction of the Supreme Court if in fact such destruction has
been done by authorised officers in accordance with the Act and if the
Secretary has authorised it.
The reason given by the Minister for the removal of compensation
in respect of various matters is that the Crown "intends to change
the nature of various types of fishing licences." The Committee
does not see how the explanation given relates to the two matters mentioned
above. The Committee is of the view that a much more detailed explanation
of the particular reasons for the insertion of such clauses would be
of great assistance in its deliberations.
"Clauses 128 and 129
Virtually all legislation affects certain rights
of some persons. It is up to Parliament to determine whether such
effects are justified in the wider public interest.
I am advised that even where the actions of an authorised
officer are in accordance with valid Acts of Parliament, this may
not necessarily prevent the Supreme Court from awarding compensation
where property is lawfully damaged or destroyed. The absence of such
certainty can inhibit the implementation of legislation and frustrate
the will of Parliament. For example, I am advised that the fish disease
provisions (Part VIA) of the Fisheries Act 1968, although enacted
in 1980, have never been implemented because of this uncertainty with
respect to compensation.
Clause 79 of the Bill is a re-enactment of section
43D of the existing Act. If Parliament is still of the opinion that
clause 79 is justified, then sub-clauses 128(2)(c) and (d) are also
necessary before clause 79 can be implemented. Please note that clause
128(3) does not prevent any action or proceedings for compensation
with respect to any loss or damage as a result of negligence."
The Committee wrote a further letter to the Minister
on 31 March 1995. The Committee raised continuing concerns as
to the need for detailed reasons. The Committee also raised further
concerns in relation to clause 128(2)(c). The Committee requested a
copy of the original advice which was cited as authority for the proposition
that notwithstanding the fact that authorised officers have acted in
accordance with the Act, a Supreme Court may award compensation where
property is lawfully destroyed.
The Minister responded by way of letter.
The relevant extract is set out:
"Your interpretation of my previous letter is
correct. Parliamentary Counsel have advised that notwithstanding the
fact that authorised officers have acted in accordance with the Act,
a Supreme Court could still award compensation where property is lawfully
destroyed. Legal advice is being sought on the authorities for this
view.
I am advised that sections 105(2) and 138 of the
Livestock Disease Control Act 1994 are in fact more restrictive than
clauses 128 and 129 of this Bill.
As you are no doubt aware, it is Government policy
that where there is a "no compensation" provision in a Bill,
there is also to be a Section 85 of the Constitution Act provision.
Discussion of this policy is a matter within the Attorney-General's
portfolio rather than that of the Minister for Natural Resources.
Whether the risk exposure of the Crown justifies
such a "no compensation" provisions in the Bill is a matter
my officers would be pleased to discuss in detail with your Committee
at the meeting on Monday."
"Part 3 - General
Clause 27 revokes the reservation of specified
land at Werribee. On the appointed day the Centre land is deemed to
be unalienated Crown land and is deemed to be temporarily reserved for
the purposes of research and education. Clause 30 is a transitional
provision.
Variation of Section 85 of the Constitution Act
1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees
Act 1968)
Clause 28 provides that no compensation is payable
by the Crown in respect of anything done under or arising out of section
27. Clause 29 declares its intention to alter or vary section
85 of the Constitution Act 1975 to the extent necessary to prevent the
Supreme Court awarding compensation in respect of anything done under
or arising out of section 27. The Committee notes the explanation in
the Second Reading Speech:
"Clause 29 of the Bill is intended to alter
or vary section 85(5) of the Constitution Act 1975 to the extent necessary
to prevent the Supreme Court from awarding compensation in respect
of the change of the status of the reserved land at Werribee which
is to be controlled and managed by the Australian Food Industry Science
Centre.
The reason for preventing the Supreme Court from
awarding compensation is as follows:
To enable a change to be made to the status of the
reserved land, it is necessary to ensure that the land is no longer
subject to any interests and rights arising out of its former use.
The existence of such interests and rights and claims for compensation
based on them on the former use of the land could delay or prevent
a change in the use or status of the land."
The Minister responded by way of letter dated 2 May 1995.
The Committee reported the response in Alert Digest No.5 of 1995 on 9
May 1995. The relevant extract is set out:
"I write in response to your letter of 21 April
requesting advice as to the need for Section 85 provisions in the Australian
Food Industry Science Centre Bill.
I have been informed by Parliamentary Counsel that
the no-compensation provision relating to the change of status of Crown
land is there for two reasons.
The first is to ensure that members of the public cannot
make any claims on the ground that public privileges have been taken
away - for example, the right of access to land, rights of way or any
other rights arising from the public nature of Crown land.
The second is to ensure that no private claims are
made by persons who may have had leases, licences or other rights over
the land that, unknown to the Government have not been revoked.
The absence of a no-compensation provision would imply
that the Government would be prepared to accept claims for compensation:
but such claims would be uncertain in nature and extent and could expose
the Government to unknown liabilities.
In the case of Werribee, the Crown land has been used
for many years as a state research farm. I understand that inquiries
have not revealed the existence of any interests. That indicates that
the Bill is unlikely to affect private rights, but public rights might
still be claimed if a section 85 provision were not included.
It must also be remembered that Crown land records
do not offer protection of the kind provided under the Transfer of Land
Act. It is possible for interests in Crown land to exist despite no
formal entries appearing in any of the usual government records.
I note that the Committee is examining this issue in
a Discussion Paper on Section 85 which will be released shortly."