Bills Digest no. 83 2007–08
Lands Acquisition Legislation Amendment Bill
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Contact officer & copyright details
Lands Acquisition Legislation
Amendment Bill 2008
Portfolio: Finance and Deregulation
The majority of the
operative provisions commence on Proclamation, or six months after
Royal Assent, whichever is the earliest.
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
To amend the Lands
Acquisition Act 1989 (the Act) to
- enable Commonwealth Mining Regulations to be made so that State
and Territories can administer explore and mine on
Commonwealth land under a
consistent regulatory scheme
- vest jurisdiction in the Federal Court under the proposed
Commonwealth Mining Regulations
- amend the penalty regime under the Act
- allow the Minister to make offers of compensation in situations
where no claim has been made
- remove the requirement to table certain instruments in
- make other minor amendments.
This Bill was introduced into the Senate by the previous
Government on 13 September 2007 but lapsed on the dissolution of
Parliament when the election was called. It has been introduced in
its entirety by the new Government. As stated in the Second Reading
Speech, the Bill has various amendments to improve the Acts
operation and efficiencies in a number of areas, and seeks to
remove some redundant measures which are still in the Act.
The Commonwealth under the Constitution is empowered to acquire
land for any purpose for which it has power to make laws. Section
51(xxxi) of the Constitution gives the Parliament power to make
laws with respect to:
The acquisition of property on just terms from any
State or person for any purpose in respect of which the Parliament
has power to make laws.
Section 51(xxxi) includes conditions which protects the owner of
property , an expression which includes land and interests in land.
Section 51(xxxi) guarantees just terms compensation where property
is acquired compulsorily from any State or person.
Section 51(xxxi) is concerned with compulsory
acquisition, not acquisition by agreement. Where the Commonwealth
acquires property through agreement with the owner, the terms
agreed to by the owner of the property are assumed to be just terms
Using its constitutional powers, the Commonwealth Parliament has
enacted a statutory framework which governs the acquisition of land
and interests in land by the Commonwealth, to be found under the
Lands Acquisition Act 1989. There are procedures set out
in the Act relating to the acquisition of land by agreement and by
The procedure governing acquisition by agreement of an interest
in land is set out in section 40 of the Act. An agreement may be
entered into once any one of the following conditions has been
satisfied: a pre-acquisition declaration relating to the
acquisition has become absolute and is in force; the Minister has
granted a certificate under section 24; the interest is available
in the market; or the interest is owned by the Commonwealth or a
Commonwealth authority. Currently the Minister is required to lay
before Parliament a statement concerning the details relating to
Section 41 of the Act enables the Minister to acquire interests
in land by compulsory acquisition. Under section 41 the Minister
may declare in writing that an interest is acquired by compulsory
process. In this case, either a pre-acquisition declaration has
become absolute or a certificate has been given under section 24
(for acquisition of land that is required urgently). The
declaration that identifies the land and the purpose for which it
is being acquired shall be published in the Gazette, and if
appropriate, published in a local newspaper where the land is
Acquisitions made under the Act must be for a public purpose .
Reflecting section 51(xxxi) of the Constitution, public purpose is
defined in the Act as follows:
public purpose means a
purpose in respect of which the Parliament has power to make laws
and includes, in relation to land in a Territory, any purpose in
relation to the Territory.
There has been little, if any, comment on this Bill.
There is expected to be a reduction in administrative costs and
financial burdens as a consequence of some of the amendments in
Item 1amends section 124 of the Land
Acquisition Act 1989 to allow regulations to be made to vest
jurisdiction in the Federal Court of Australia in matters arising
under regulations made pursuant to the Act. This reflects the
amendments in item 2 which extends the regulation
making power to enable regulations to be made which will apply,
adopt or incorporate provisions of State and Territory law.
Item 2 is the substantive amendment which will
insert new subsection 124(3A). Section 124 of the
Act currently provides that regulations can be made relating to the
exploration, mining and the carrying out of operations relating to
that exploration and mining (subsection 124(1)). New
subsection 124(3A) extends this regulation making power to
provide that regulations made for those purposes can apply, adopt
or incorporate legislation of a State or Territory. This will
enable States and Territories to explore and conduct mining
activities under a consistent regulatory framework to be developed
in the future.
To quote from the Department of Finance and Deregulation s
To date, no regulations have been made pursuant to
section 124. The Act provides at subsection 124(8) that until such
time as the regulations are made and take effect, the provisions of
the now repealed Lands Acquisition Act 1955
continue. Essentially these provide that the Minister for
Finance and Administration may authorise exploration on
Commonwealth lands while the Governor-General may authorise the
granting of leases/licences to mine on Commonwealth land. The
Lands Acquisition Act 1955 provides for exploration and
mining on Commonwealth land to be subject to the relevant
State/Territory mining legislation and to any conditions the
Commonwealth may wish to apply.
All proposals to explore or mine on Commonwealth
land are considered in accordance with the provisions of the
Protection and Biodiversity Conservation Act 1999, the
Heritage Commission Act 1975, and the Native
Title Act 1993, where applicable.
Part VII, Division 4, of the Act makes provision for claims for
and offers of compensation. Section 67 allows a person who
considers he or she is entitled to compensation to make a claim in
the approved form to the Minister specifying the interest that has
been acquired and the amount sought. New section
74A (item 1) makes provision in the event
that a person does not make a claim for compensation under section
67. In this case and in certain circumstances, the Minister can now make an offer
of compensation to an amount that the Minister thinks appropriate
and set out how the amount offered was arrived at (new
subsections 74A(1) and (2)). Once such an offer has been
made a person cannot then make a claim under section 67
(new subsection 74A(3)).
If the amount offered by the Minister is accepted by the person,
then that amount that has been offered and accepted is the amount
of compensation that will be payable (new section
79). This covers the situation of post-acquisition
agreements, whether or not a claim initiated the resolution.
Provisions covering the situation where the claimant does not
accept the amount or allowing the court to determine the amount are
consequentially amended to encompass the changes to the procedures
created by new section 74A (items 2
Part VIII of the Act makes provision for compensation claims in
the event that compulsory acquisition powers have been exercised
and a person has suffered a loss as a result. This could include
injury, damage or expenses incurred. This is distinguishable from the
situation where a person has had an interest in land or property
compulsorily acquired. If a person considers he or she has suffered
such a loss, a claim for compensation can be made to the Minister
under section 97 of the Act.
New section 101A (item 22)
allows the Minister to make an offer of compensation in the event a
person has suffered a loss (if the Minister is satisfied of this factor) and the
person has not made a claim for compensation under section 97 of
the Act. This is similar to the proposed amendments that are
envisaged in new section 74A. Once an offer of
compensation has been made the person is not then entitled to make
a claim under section 97. This will have the effect of
preventing the Minister from making an offer under both
proposed section 101A and section 98 of the
Item 47 makes a consequential amendment to the
jurisdiction of the Federal Court of Australia to make
determinations either when a claim has been made or an offer for
compensation has been made under new sections 74A and
The amendments made to Schedules 1 and 2 apply after the
proclamation of the Schedules or on the first day after the
expiration of 6 months from the date of Royal Assent (item
48 and clause 2 of the Bill).
Item 1 of this Schedule amends the Act to
ensure that the Cocos Islands land administration is exempt from
the Act, consistent with the treatment of Christmas Island and
Norfolk Island which are exempt already under section 5 of the
Items 3 and 4 have the effect of no longer
requiring the Minister to table in Parliament an agreement for the
acquisition of an interest that is available in the market only.
According to the Explanatory Memorandum an agreed acquisition of an
interest that is available in the market is already reported on
AusTender, and the removal of the requirement to table such
transactions eliminates duplication in reporting. It should be
noted that the existing requirement to table in Parliament does not
give Parliament any power to disallow such statements.
Section 122 of the Act makes provision for Commonwealth land
that is set aside for a public purpose to be then vested in
trustees upon trust to carry out the particular purpose. If the
setting aside (or dedication of the land for a public purpose) is
varied or revoked the trustees are required to deliver to the
Attorney-General (or a person specified by the Attorney-General)
all relevant title documents. Item 7 removes the
reference to the Attorney-General and replaces it with the Minister
in accordance with the Administrative Arrangements Orders which
have the Act under the auspices of the Minister for Finance and
Deregulation, not the Attorney-General.
Item 8 makes a similar amendment to section 138
of the Act to include recognition of the signature of the Minister
or a delegate of the Minister, as well as the Attorney-General s
However, the Bill does not consequentially amend section 136 of
the Act which states:
136 Execution of documents for and on behalf of
All instruments, receipts and documents relating
(a) the acquisition of an interest in land; or
(b) land vested, or that has been vested, in the
may be executed by the Attorney-General for and on
behalf of the Commonwealth.
Schedule 4 repeals the Lands Acquisition (Defence) Act
1968 which dealt with certain land acquired in New South Wales
for defence purposes and is now redundant.
As noted above, existing section 136 is not being amended to
delete mention of the Attorney-General and replace it with the
Minister as is being proposed by item 7, nor is it
being amended to insert the Minister along side the
Attorney-General as is being proposed by item 8.
However, although Attorney-General can delegate this power to
execute documents, in the interests of consistency, Parliament may wish to
consider this provision s status.
14 March 2008
Bills Digest Service
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