Senate
6 September 1922
8th Parliament · 2nd Session
- QUESTION
- NORTHERN TERRITORY
- QUESTION
- QUESTION
- PERSONAL EXPLANATION
- PAPERS
- QUESTION
- THIRD READINGS
- DEFENCE (CIVIL EMPLOYMENT) BILL
- ASSENT TO BILLS
- APPROPRIATION (WORKS AND BUILDINGS) BILL 1922-23
- LOAN BILL (£12,000,000)
- LANDS ACQUISITION BILL
The President (Senator the Hon. T. Givens) took the chair at 3 p.m., and read prayers.
page 1884
QUESTION
MEAT
Unsaleability in England.
Senator GARLING:
NEW SOUTH WALES
– I desire to repeat a question which I put to the Minister representing the Prime Minister about ten days ago with regard to allegation* made as to the unsaleability of meat in England being due to the action of representatives of the Australian Government.
Senator PEARCE:
Minister for Home and Territories · WESTERN AUSTRALIA · NAT
– The honorable senator, in asking his question, quoted a. statement by Mr. Trethowan, of NewSouth Wales, alleging that the unsaleability of meat in England was due to the action of representatives of the Australian Government. He asked whether there was any foundation for the statement, and whether, if it was not true, the Government would take steps to make that known Senator E. D. Millen pro- . mised to make inquiries, and the Trade and Customs Department has now supplied the following reply to the honorable senator’s question : -
It has long been recognised that the old stocks on the United Kingdom market, up to July of this year, were the principal cause of Australian beef being unsaleable. With regard to the allusion in the newspaper excerpt to black kidneys, mentioned by Mr. Trethowan, it is more than probable that these kidneys were not of Australian origin, in view of the fact that black kidneys are not exported from Australia. In this connexion, attention is invited to the remarks made by Mr. Jowett in the House ofRepresentatives on the 25th August, 1922, when speaking on the Meat Export Bounties Bill.
page 1884
NORTHERN TERRITORY
Developmental Policy
SenatorFOLL. - I ask the Minister for
Home and Territories if he saw in the Melbourne press recently statements by Mr. A. J. Cotton, owner of Brunette Downs, Barkly Tableland, Northern Territory, making certain proposals for the closer settlement and stocking of that country, and asking certain concessions from the Commonwealth Government in return? Has this gentleman seen the Minister, and are any definite steps being taken in the direction indicated ?
Senator PEARCE:
NAT
– The gentleman referred to has seen me, as have quite a number of other gentlemen, in regard to various proposals for the development of the Northern Territory. I have already stated in this Chamber that it is my intention to put to the Government certain proposals of policy for the development of the Northern Territory. I do not propose to give replies in detail to suggestions put forward directly or indirectly through the newspapers until I am prepared to announce to the Senate the decision of the Government on the policy I shall put before them.
page 1885
QUESTION
AUDITOR-GENERAL’S REPORT
Senator LYNCH:
WESTERN AUSTRALIA
– I wish to repeat a question I have previously asked as to the prospects of honorable senators being supplied with a copy of the Auditor-General’s report for the last financial year before a commencement is made with the debate on the Budget-papers.
Senator PEARCE:
NAT
– Senator E. D. Millen caused inquiries to be made on the subject, and the information supplied by the Treasury is that it is anticipated that this report will be available in about a fortnight.
page 1885
QUESTION
CROWN LAW DEPARTMENT
Preference to Soldiers
Senator DRAKE-BROCKMAN:
WESTERN AUSTRALIA
– I ask the Minister for Home and Territories if the Government are adhering to their policy of preference to returned soldiers? If so, will instructions be given to the authorities of the Crown Law Department that, when briefing counsel, this policy shall be adhered to?.
Senator PEARCE:
NAT
– The answer to the first part of the honorable senator’s question is in the affirmative. I ask for notice of the second part of the question.
page 1885
PERSONAL EXPLANATION
Price of Superphosphates
Senator LYNCH:
– (By leave.)- On a former occasion, when addressing myself to the Senate, I made reference to effects which I conceived to be a result of the operation of the Tariff we have passed.
In doing so, amongst other things, I made special reference to a firm manufacturing superphosphate in this State. Since then, I have received a letter from a representative of that firm, in part, to the following effect. The letter is dated Melbourne, 28th August, and says: -
Dear Sir,
We have recentlyhad brought under our notice the statements made in Hansard, and therefore privileged, regarding the price of superphosphate reported to have been made by yourself, as follow: - “ I have to recall a fact which is to the discredit of a company to which I have publicly referred before, namely, Cuming, Smith, and Co.Pty. Ltd. A representative of that firm, which manufactures superphosphate, told me, outside the door of this Senate, that if the Tariff of 25 per cent. were put upon his product, he would give me his word of honour that its price would not be raised. I had not been in Western Australia a week, when the price jumped from £6 2s. 6d. to£ 6 12s.6d. per ton.”
As we cannot believe that the above statements were meant to be malicious, and were made owing to an imperfect knowledge of the position, we would be glad to call your atten to the following facts with reference to the price of superphosphate, and the general position.
The price of superphosphate has not been increased in any way since the Tariff Bill was passed; on the contrary, it has been reduced. The following figures show this for Western Australia: - ‘.
Since receiving this letter, I set inquiries on foot in Western Australia amongst responsible people there to find out who was right and who was wrong. From the replies I received, including one from my own farm, it has been made clear that the statement made by the representative of Cuming, Smith, and Co. is quite correct, and the statement I made to the Senate was wrong. How I came to commit the error happened in this way: The figure for 1919, that was the price charged to us, was. around £6 per ton. That was the price which was lingering in my mind, and my contention was supported by a statement made by a farmer friend in Western Australia, who said : “Now that the Tariff has been passed, the superphosphate manufacturers have raised the price 10s. per ton.” Those two circumstances helped me to make the erroneous imputation, and Ican only say that I regret it. It will be noticed that thecompany has imputed no malice to me, which I appreciate very much. During my term in public life - some eighteen odd years - this is the first occasion on which I have had to take back a reference made to the action of any of my fellow citizens, and, in the circumstances, I feel it is once too often, and I take this the first opportunity of giving the same wide publicity to the withdrawal of my offending words as I gave in the first place when using them. I trust that the company will not suffer any injury as the result of my utterance which was as unguarded as it was unwilful.
page 1886
PAPERS
The following papers were presented : -
Australian Imperial Force Canteens Funds Act - Statement of Income and Expenditure to 30th June, 1922, together with Auditor- General’s Report.
Defence Act - Regulations amended - Statu tory Rules 1922, Nos.111, 112, 113.
Defence: Commonwealth Government Factories - Woollen Cloth Factory - Manufacturing and Profit and Loss Account for year ended 30th June, 1921 (in substitution for Statement in Appendix “ A “ of Report presented on 26th July, 1922).
Electoral Act - Second Report, with Maps, by the Commissioners appointed for the purpose of redistributing the State of Victoria into Electoral Divisions.
Lands Acquisition Act - Land acquired -
For Defence purposes -
Western Australia - Carnarvon, Derby.
Hamelin Pool, Junga, Onslow, Roe- bourne, and Winning Pool.
For Postal purposes -
Warren, New South Wales.
Yarraman, Queensland.
Naval Defence Act - Regulations amended -
Statutory Rules 1922, Nos. 110, 114.
New Hebrides - Protocol, signed at London, 6th August, 1914, by Representatives of the British and French Governments - (Ratifications exchanged at London, 18th March, 1922). (Paper presented to the British Parliament.)
Papua Act - Infirm and Destitute Natives Account - Statement of the Transactions of the Trustees, 1921-22.
Public Service Act -
Appointments and Promotion -
Department of Works and Railways - C. R. Copeland; M. E. Woodforde.
Home and Territories Department - V. F. Turner.
Postmaster-General’s Department - E. J. Bryant.
Regulations amended- Statutory Rules 1922,No.109
page 1886
QUESTION
REPATRIATION
Senator FOLL:
QUEENSLAND
asked the Minister for Repatriation, upon notice -
Has he laid it down as a principle in his Department that, in the case of overpayment of pension to a soldier or dependant of a soldier as a result of negligence or failure on the part of the Department, the overpayment shall be borne by the Department?
Senator PEARCE:
NAT
– The Commissioners, whose province it is to deal with such administrative matters, advise that no fixed rule has been adopted, but that each case of overpayment is dealt with according to the circumstances surrounding it.
page 1886
THIRD READINGS
The following Bills were read a third time : -
New Guinea Bill
Trade Marks Bill
Jury Exemption Bill
Service and Execution of Process Bill
page 1886
DEFENCE (CIVIL EMPLOYMENT) BILL
Bill returned from House of Representatives, without amendment.
page 1886
ASSENT TO BILLS
Assent to the following Bills reported : -
Treaties of Washington Bill.
Statutory Declarations Bill.
Defence (Civil Employment) Bill.
page 1886
APPROPRIATION (WORKS AND BUILDINGS) BILL 1922-23
Bill received from the House of Representatives, and (on motion by Senator Pearce) read a first time.
page 1886
LOAN BILL (£12,000,000)
Bill received from the House of Representatives, and (on. motion by Senator Pearce) read a first time.
page 1886
LANDS ACQUISITION BILL
In Committee (Consideration resumed from 16th August, vide page 1342) :
Clause 20-
Section 30 of the principal Act is amended -
by inserting after the word “ produce” the words “ at his own expense “; and by omitting the words “ tenant holding from year to year “ and inserting in theirstead the words “ monthly tenant “.
Section proposed to be amended -
If any person having a greater interest titan as a tenant at will of anyland acquired by compulsory process makes a claim for compensation in respect of any unexpired term or interest underany lease, the Attorney-General may,by demand in writing, require him to produce the lease in respect of which the claim is made, or the best evidence thereof in his power.
If the demand is not complied with within twenty-one days after service thereof on the claimant, he shall be deemed to be a tenant holding from year to year, and shall not be entitled to further compensation than as such a tenant.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– Senator Garling has been courteous enough to let me have some suggestions in regard to this clause. I understand that he is now going to put forward some criticisms, after which I shall reply to him.
Senator GARLING:
New South Wales
– I have already said practically all I need to say. When the Bill was previously before the Committee, I drew attention to two features in this clause which are new in Federal legislation. One is that in the dispossession of a man of his land he is to be called upon for the first time to produce his title “at his own expense,” those being the words which are to be added to section 30 of the principal Act. In New South Wales, where similar legislation exists under the title of the Public Works Act, the practice in the case of compulsory resumption is to permit all the costs of, and incidental to, the production of the title to be paid by the Crown. It is only natural that this should be so. It is different in a case where a vendor has fixed his own selling price, because presumably he has allowed for such costs. In this case, however, the Crown proceeds to acquire a person’s land whether he likes it or not, and in the instance referred to in the section, it is supposed that the lease is the foundation of the title. Very often that document is in the possession of a mortgagee, and under the law a mortgagee will claim the usual costs for the production of the lease. If the section is amended as proposed under this clause. the effect will be to throw that expense upon the dispossessed owner, and I submit that it should be borne by the Crown.. It is not a case in which the dispossessed owner can enlarge his costs to any unreasonable extent. In conveyancing work there is a department that sees that only reasonable costs are allowed. I wholly dislike paragraphb of the clause. It would impose a very hard penalty upon a man who, perhaps through inability to produce a document, although he might be a lease-holder with fifty years’ tenure, and entitled to be compensated on the basis of that tenure, might under this clause be compensated only on the basis of a monthly tenancy. In matters of resumption of land, we should not go to the length of imposing such a severe penalty upon a man who, through no fault of his own, might be unable to produce the lease in the twenty-one days specified. It is no answer to this objection to say that the Crown would not enforce this penalty. Why should not the Crown, like a private individual, take the full benefit of the law? Any measure we pass should be quite fair to both parties. If the Minister is not prepared to yield on this point, the very least he should allow is that if the demand is not complied with within twenty-one days of service, then in the absence of a reasonable excuse for the production of the lease the tenant should be deemed to be a monthly tenant, but I cannot accept even that modification. There is a, third point, which is more of a technical than of a practical nature. This relates to section 30, requiring the production of the lease, or the best possible evidence thereof in the tenant’s “power.” I respectfully submit that instead of the word “ power “ we shoulduse the word “ possession.” “ Power “ is too wide a term to be defined in a Court, but “ possession “ is something that can be measured, and is a word that is always used in connexion with conveyancing matters when it has to be decided what is to happen when certain documents are not produced. I submit to the Minister that he should consider the question I have raised, and allow the Word “ power “ to be altered to “ possession.”
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– As I have already intimated, Senator Garling was good enough, when we were dealing with this Bill in Committee, to let me have a copy of the various amendments which he intended to suggest. Therefore, I have been able to get them carefully examined and checked. There are certain of them which it is proposed to accept. In this regard we cannot lose sight of the fact that there are two interests which may at times conflict. There are the interests of the whole people and the interests of the individual. We are here to make laws for the protection of the community, and while the individual, as part of the community, deserves justice, we must not so frame our laws that the community can be harassed by the individual. That is an important principle which has to be kept in mind in dealing with such a question as lands acquisition.
Senator Senior:
– On the other hand we ought not to make laws to harass the individual.
Senator PEARCE:
– Exactly, and we should not allow the individual to harass the community. It seems to me that Senator Garling looks at this clause entirely from the point of view of the individual, and concedes no rights to the community whatever. He proposes to put the individual in a position in which he can harass the community. I think that Senator Garling has not been quite candid with this Committee, because he has stressed at all times in his speech “ the production of the lease.” If honorable senators will read the memorandum I have circulated, which includes not only the words of the Bill, but also those of tho original Act, they will see that section 30 aa proposed to be amended will read as follows: -
If any person having a greater interest than rs a tenant at will of any land acquired by compulsory process makes a claim for compensation in respect of any unexpired term or interest under any lease, the Attorney-General may, by demand in writing, require him to produce at his own expense the lease in respect nf which the claim is made, or the best evidence thereof in his power.
Senator Garling made a great deal of the difficulties with which a man may be confronted. We, in fact, recognise them, and tell the man that if it is difficult or impossible for him to produce the lease, he must produce the best evidence of it in his power. That shows that the Act does consider the individual, who may be put to great trouble and expense if he has to preduce his lease. What is required h evidence, and he is the man who has that evidence. The Commonwealth does not possess it. As he is called upon to support his own right, it surely is not too much to ask him to accept the alternative of producing his lease or the best evidence of it in his power, and it is not too much to ask him to do it at his own expense. He will, of course, get compensation for the acquisition of his land, and my experience is that where the Government is one of the parties it is generally the Government that comes off second-best. Regarding Senator Garling’s objection- to the word “ power,” the Crown Law authorities take the point that to substitute for it the word “ possession “ would make the section too limited. A man may have no evidence in his “ possession,” but he may have evidence in his “ power.” It may be in the possession of somebody else, but it may be in his power to produce it. I ask the Committee not to alter the word as suggested by Senator Garling.
The second paragraph of section 30, to which Senator Garling has referred, reads -
If the demand is not complied with within twenty-one days after the service thereof on the claimant- -
And then the Act, as worded at present, proceeds - he shall be deemed to be a tenant holding from year to year, and shall not be entitled to further compensation than as such tenant.
It is proposed to alter the paragraph so that if the demand is not complied with within twenty-one days - that is to say, if tho claimant does not produce the lease or the best evidence of it in his power, and only in that contingency - he shall be deemed to be a monthly tenant, and not entitled to further compensation than as such tenant. The Crown Law authorities advise me that, as the section stands at present, a man may claim for a longer tenancy than he actually holds. He may hold a monthly tenancy, and yet we would present him with compensation on the basis of a yearly tenancy. If he cannot establish his title, he is surely not entitled to compensation as a yearly tenant. Although only a monthly tenant, he could, merely by taking a negative stand and doing nothing, become, in effect, a yearly tenant.
Senator Garling:
– Suppose he is ‘ a twenty-year leaseholder?
Senator PEARCE:
– Then let him produce his lease. This provision does not vitiate the lease. If he cannot produce the lease, then let him produce the best evidence of it in his power. At present, we are giving encouragement to people to adopt a policy of obstruction, and we are rewarding them for it. As representatives of the people, we have no right to put the individual in a position of great advantage over the community. We ought to put the individual in a position where he will get justice, but not where he will bo able to extort more than his due from the people by a mere refusal to. give any evidence. That is a weakness in the present Act, and, in justice to the community, it ought to be altered. For these reasons, I cannot accept Senator Garling’s suggestion.
Senator BENNY:
South Australia
– I am sorry that the Minister (Senator Pearce) cannot see his way to agree ‘with Senator Garling’s amendment. We are hero to look after the interests of both the Government and the individual, but we should not “kow-tow” to the brute force which a Government can bring to bear at the expense of the individual. The tendency in modern legislation, when the Government is in conflict with the individual, is for the force majeure of the Government to be brought to bear at the expense of the individual. We have a right to protect the interests of the individual. We have seen it in many statutory enactments where, when the Government is a party, and evidence is being brought forward, the onus of proof is on the defendant. There is the same principle in this Bill. The onus of proof is put on the unfortunate man whose land is being compulsorily taken from him.
Senator Pearce:
– Can the honorable senator give an instance in which land has been compulsorily acquired by the Government and the individual has got the worst of it?
Senator BENNY:
– I am not here to quote cases.; but I owned some land on the outer harbor in South Australia, which the Government compulsorily acquired. I knew that if I had held it it would, being a water frontage, have become immensely more valuable than the paltry sum paid to me by the Government. I hope that Senator Garling will insist upon his amendment. It is a shocking thing that an individual who has his land compulsorily taken away from him should have to go to the expense of proving his title. It seems to me that this is a case where the Government, which can easily get possession of land if it wants it, should at least have the decency to pay the expenses of the person who has to give it up. I am not in accord with Senator Garling as to the need for altering the word “ power “ to “ possession,” but I am in agreement with his request to amend the clause with regard to the question of a monthly tenancy. It is monstrous that if a lessee cannot, within twenty-one days, produce evidence of his lease, he should be regarded as a monthly tenant instead of a tenant holding from, year to year.
Senator Senior:
– It may take some lessees seven days to post a letter.
Senator BENNY:
– That may be so. If a man has a lease that has expired, and if his rent is payable half-yearly, or some aliquot part of a year, he is construed in law as being a tenant from year to year. The Government now want to upset that principle. I shall support Senator Garling.
Senator FAIRBAIRN:
Victoria
.- With Senator Benny, I think it would be a great hardship if the Minister (Senator Pearce) insisted upon a leaseholder being required to produce his lease At his own expense. We ail know how difficult it is at times to get hold of these leases. In many cases they are in the hands of mortgagees, and it is almost impossible to get them. It is no fault of the owner of land that he may be obliged suddenly to sell, and so it is only fair that he should not be put to any unnecessary expense. I do not quite see why the vendor should be asked to produce the lease at all, for I presume the Government have copies of all leases in the Lands Department.
Senator Pearce:
– But this clause relates to leases from private owners. - We want to find out whether they - are weekly, monthly, or yearly tenancies, because this question may have an important bearing on the amount of. compensation to be paid.
Senator FAIRBAIRN:
– In such cases the lessee, if unable to produce the lease, would be able to produce some evidence of it. The Government should not put any individual lessee to unnecessary expense. If the words “ and necessary “ could be inserted, probably the objection raised by Senator Garling would be met. We realize, ofcourse, that at times the Government want protection, and Ipresume that is why the Minister is so anxious that the production of the lease should be at the vendor’s expense, but the guiding principle ought to be whether the expense incurred is necessary or otherwise. If alessee claims compensation, he should not be mulct in considerable expense to produce his lease. I do not think there is very much in the other point. If a lessee cannot produce the lease, he should produce the best evidence of it in his power. I cannot see much difference between the words “ power “ and “ possession,’’’ but I think that the other matter - the expense which a lessee might have to incur in the production of his lease - is one that the Minister might take into consideration. The third point will only arise if a lessee does not produce the document or evidence of it within a reasonable time.
Senator Garling:
– But suppose he has not got the lease ?
Senator Pearce:
– In that case he should have in his possession a letter showing his right to it.
Senator FAIRBAIRN:
– Surely every lessee has some evidence of his leasehold rights.
Senator Garling:
– I can cite one instance, at all events, of a man who was asked for the production of thedocument, and was unable to comply with the request.
Senator FAIRBAIRN:
– It is. extraordinary that any lessee should not be able to produce some evidence of his rights. If he had parted with the lease, there should, at all events, be the exchange of a letter indicating that fact. Any way, I do not think there is very much in the objection. If a. man does not intend to comply with the demand to produce bis lease, and shows a. malicious intention of obstructing the Government in a very necessary operation, the Minister should, of course, have the necessary power to safeguard the Department.
Senator GARLING:
New SouthWales
– Before the matter goes any further, I should like to cite a case in which the position I have indicated actually cropped up. I have in my hand a letter dealing with a resumption matter in New South Wales. The whole business has been held up for three years. The Crown are in possession.; theyare not paying any interest, and they are withholding possession, simply because a forty-two years old lease cannot be found, and there is no legal evidence that it has been surrendered. The Crown are insisting that the lost document shall be produced.
Senator Pearce:
– Is that under the Commonwealth law?
Senator GARLING:
– No. It is under the New South Wales law.
Senator Pearce:
– Does the State Act contain the words “ or the best evidence thereof in his power ‘ ‘ with regard to ‘the. production of a lease ?
Senator GARLING:
– There is no section of that description at all in the New South Wales Act. The only question at issue is the production of a lease that has disappeared, and which has been surrendered for many years. All sorts of evidence has been given that the lease is ended, but the owner has been stuck up for three years. ‘The same position might arise under the Commonwealth law. In my judgment, the word “ power “ in this clause is dangerous. It may not be within the power of a lessee to produce his lease, or any evidence of it, because there might be trouble between him and the mortgagee, who, in such circumstances, might not be a consenting party to the production of the lease.
Senator Benny:
– In such circumstances a lessee, according to this clause, could produce the best evidence available to him.
Senator GARLING:
– Then I will not press that point.; but I do press my objection to the proposed inclusion of the words “ athis own expense,” andalsoto the penalty proposed to attach to nonfulfilment. Honorable senators may think that there is not much in this ; but it is hardly a fair argument for the Minister to use that it is intended to meet the case of a. monthly tenant. Unfortunately, in the greater number of cases the application will be, not to a man who is a monthly tenant, but to a man holding a property under a long lease. The injury done to such a person may very well be much greater than any advantage which the Government can reap by the passage of this clause, which is really a very drastic clause.
Senator SENIOR:
South Australia
– In most cases leases are made out in duplicate, and one copy is deposited at the Titles Office. It will be possible after a search to produce a copy of the lease in such cases. The only case in which such a difficulty as Senator Garling has referred to is likely to arise is a case in which land has been occupied prior to the arrangements with respect to titles now obtaining in nearly all the States.
Senator Pearce:
– An ordinary shop lease is not registered in the Titles Office.
Senator SENIOR:
– In most cases such leases are registered, and if there be a mortgage on the property the mortgage is registered. Copies of such leases will be obtainable in most cases. But in the case of a property occupied a very long time ago, the occupant may be- penalized under this clause, because it will make it incumbent upon him to produce his lease when it may not be in his power to do so. In my experience the Crown does not take a lenient view in such matters. Unless the tenant can produce his lease within twenty-one days he will be liable under this provision to a penalty. In the case to which Senator Garling has referred, and in other cases which are in my mind, it might be extremely difficult for the tenant to produce his lease within twenty-one days from the time he is notified of his obligation to do so. There are many cases in which it might take twenty-one days for the notification to reach the tenant. Under this provision, though a man may hold his property on a yearly lease or a seven years’ lease, he is, in case of default, to be regarded as a monthly tenant. These matters cannot be considered as though they applied merely to metropolitan1 areas, in which mails are distributed’ three times a day. We can conceive of thousands of cases in Australia in which it would take twenty-one days from the date of posting for a notification to reach the person concerned, and it would be a very great hardship in such a case if the provision were to be strictly enforced.
Senator DRAKE-BROCKMAN:
Western Australia
– I think we should do well to consider the paragraphs of this clause separately. I move -
That paragraph a be left out.
In all transactions of this kind between the Government and a party, or between two parties, when the question of expense of proceedings comes to be considered, both are amply protected by officers of the Crown. There are special officers appointed in every State for the purpose of seeing that no party to a. suit or any prosecution of this kind is imposed upon by the other party. Only such costs as are reasonable and proper, having regard to all the circumstances, would be allowed by the taxing officer. There is consequently, in my opinion, no necessity for the insertion of such words as were suggested by Senator Fair.bairn. Their insertion is, in effect, already provided for. I agree with those who object to the imposition of any charge upon a person whose property is being resumed, probably against his will and against his expectation. A man may be suddenly called upon to forgo allhis rights to a property under this law, and he will have to submit whether he desires to do soor not. He is put to inconvenience, which cannot be avoided, but why should he be put to any expense at all? If he takes such action as is the cause of unreasonable expense tothe Government, when what are reasonable expenses come to be assessed, that aspect of the matter will be consideredby the taxing officer, and the person surrendering the property will be allowed only his reasonable expenses having regard to all the facts. That meets Senator Fairbairn’s objection to the clause.
Question - That the words proposed, to be left out be left out - put. The Committee divided.
AYES: 15
NOES: 6
Majority . . . . 9
AYES
NOES
Question so resolved in the affirmative.
Amendment agreed to.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– Before a vote is taken on the clause as amended I hope that honorable senators will realize what they are doing. By striking out the remainder of the clause they will be establishing a principle. A man may have a weekly or a monthly lease of a shop and under the Act as it at present stands we could not resume the area on which the shop is built without paying compensation as for a yearly tenancy. One of the safeguards has been already removed, because it was intended to compel him to produce the necessary evidence as to his lease atthis own expense. Under the Act, all he has now to do is to sit back, and although he may have only a weekly or monthly tenancy he will be compensated as if he were the holder of a yearly lease. The striking out of the words suggested will merely he the means of encouraging a lessee to do nothing.
Senator Elliott:
– But you can compel him.
Senator PEARCE:
– No ; the Committee has taken away our power.
Senator Benny:
– You can compel him ; but it will be at your expense.
Senator PEARCE:
– Yes, but why should the Commonwealth be put to the expense?
Senator Drake-Brockman:
– Should we not insert the words “without reasonable excuse “ ?
Senator PEARCE:
– I believe it was Senator Drake-Brockman and Senator Garling who only quite recently were arguing concerning the difficulty of interpreting the word “ reasonable.” The words used in the Bill convey what is intended, and should be satisfactory.
Senator BENNY:
South Australia
– In opposition to the Minister for Home and Territories (Senator Pearce), I wish to refer to another aspect of the case which he did not mention. It might easily happen that a person had entered into an agreement to lease a shop or other premises, and as the agreement had expired he might be paying his rent quarterly or half-yearly, whereas the law would construe him to be a yearly tenant. If we pass this provision as it stands, the effect of it might be to make him a monthly tenant, whereas under other provisions of the law he would be regarded as a yearly tenant. Why should we penalize him to that extent ?
Senator Pearce:
– That would be an extreme case.
Senator PAYNE:
Tasmania
.- There seems to be an impression that the leaseholder will, under this clause, be compelled to accept the position of being recognised as a monthly tenant ; but it must be remembered that there is the safety-valve that if he supplies the best evidence in his power as to his lease, the Department cannot bring that provision into operation. Having deleted the other provision that the leaseholder shall produce the lease or the evidence thereof at his own expense, we have gone as far as we should go. I quite agree with the Minister (Senator Pearce) when he points out the danger that could easily arise if this provision were eliminated. Personally, I think the leaseholder will be amply protected. He may not be able to produce the lease–
Senator Benny:
– If he cannot produce the lease the provision referred to will apply.
Senator PAYNE:
– That is where the honorable senator is wrong. If the lessee cannot produce his lease he must produce to the Court the best evidence thereof within his power. No matter how unsatisfactory such evidence may be, if it is the best, and the Court is satisfied, he cannot, having complied with the law, be treated as a monthly tenant. Section 30 provides that if the demand for the production of the lease is not complied with within twenty-one days, the lessee shall be deemed to be a tenant holding from year to year. Senator Senior failed to recognise that the twenty-one days must elapse from the date of the service of the notice upon the leaseholder.
Senator Senior:
– The notice may have to be delivered by post.
Senator PAYNE:
– It would have to be delivered to his address, and the time would count from the date of delivery, and not from the date on which the notice was posted in Melbourne.
Senator Pearce:
– It has also tobe posted on the land.
Senator PAYNE:
– That being so, the lessee would have ample time. I would like the Minister (Senator Pearce) to inform the Committee if there are any portions of Australia where land is likely to be acquired, say, in the far north or northwest, where it would be difficult for the provision relating to twenty-one days to be complied with? If such is the case, the time should be extended, because we do not wish to penalize people in the outback portions of the Commonwealth.
Senator Pearce:
– It is very seldom that land is compulsorily acquired in those districts, and where it is necessary to notify such a leaseholder he would be communicated with by telegraph.
Senator PAYNE:
– If there was any danger in that direction, I would be opposed to the twenty-one days provided in the section.
Senator DRAKE-BROCKMAN:
Western Australia
– While there should be some machinery in the hands of the Government to compel people to produce the necessary evidence of their title, I think that there is a possibility of this clause inflicting undue hardship. Supposing a man has a twenty years’ lease of a city property- which is very often the case - and he fails to comply with this provision, the penalty to be imposed on such a person is that he shall automatically become a monthly tenant. The Minister (Senator Pearce) has put the converse by saying that if a man is a monthly or weekly tenant, and fails to produce evidence, under the law as it stands he automatically becomes a yearly tenant. That might inflict a certain amount of hardship on the Government; but the position could easily be rectified. We are providing that a man who happens to be the holder of a long lease shall be punished in this drastic way if he is foolish or pig-headed enough not to attend to the matter, when he would automatically become a monthly tenant. We know that Government officials do not always display the same discretion in the administration of Acts as would a private individual. They naturally, and very properly, take up the attitude that they are administering a law which they did not frame. Many leases in the city have a tremendous value; and that of a hotel ina big city, for instance, might be worth £10,000.
Senator Pearce:
– Does the honorable senator think that a man holding a valuable lease would not be in possession of some evidence of it?
Senator DRAKE-BROCKMAN:
– I think it is quite possible that, through an oversight, or owing to deliberate stupidity, he might not produce evidence of his title, in which case, perhaps, he should be punished. The punishment, however. should not be so drastic as is suggested by the Government, and it is quite possible to amend the section by inserting the words “ without reasonable excuse,” as a protection to the man who may overlook the matter. Such an amendment would accomplish what the Government aim at without inflicting what may be a severe penalty on the individual.
Senator GARLING:
New South Wales
– The Minister (Senator Pearce) is taking an extraordinarily serious view of the value of these words to the Crown.. They are of no value to the Crown, but terribly detrimental to a man who does not produce his title. They are of no value to the Crown, because a portion of section 30 provides that “ the AttorneyGeneral may, by demand in writing, require him to produce the lease in respect of which the claim is made or the best evidence thereof in his power.” If he does not comply he is punished sufficiently, because the Government would not settle with him until the demand was complied with. A man would not be foolish enough to fail to produce his lease or the best evidence at his disposal when he knows that if he does not comply with the law he will not get his money: In addition to the penalty in the principal Act, which is bad enough, we are thrusting this further liability upon him, which is unnecessarily piling penalty upon penalty. If the provision to which Ihave referred were not enforced the situation which the Minister stressed a few minutes ago of a man with a monthly tenancy, by holding back for more than twenty-one days, getting himself classed as a yearly tenant could not arise. It would be better for the Crown and for the individual if we were thrown back to section 18, under which a man has only to be compensated for his lease upon the value of its unexpired term. I think Senator DrakeBrockman agrees with me that the clause is absolutely unnecessary for the protection of the Government, and it is villanously hard upon the unfortunate individual. I suggest that the clause, as amended, be eliminated, as that will not hurt the Government, and will not seriously affect theindividual .
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– In order to meet the views of honorable senators who look upon this as a means by which the Government could injure the rights of those who are innocent or stupid, and who, having in their possession receipts or letters fail to produce them, I am quite willing to comply with the suggestion made by Senator Drake-Brockman. I therefore move -
That the following new paragraph be inserted.: -
- by inserting after the word “ if “ second occurring the words “ without reasonable excuse”.
The section will then read -
If, without reasonable excuse, the demand is not complied with within twenty-one days after service thereof on the claimant, he shall be deemed to be a tenant holding from year to year, and shall not be entitled to further compensation than as such a tenant.
Senator Drake-Brockman:
– I am quite prepared to accept that amendment.
Senator SENIOR:
South Australia
– I call attention to the fact that clause Iff amended’ section 29 of the principal Act by inserting a sub-section as follows : -
The compensation payable to the lessee for the value of his interest in any land acquired by compulsory process shall not exceed the value of such interest on the date upon which the lessee ceases occupation of the land.
It is now proposed that the value of a person’s interest shall depreciate to the extent of being regarded as a monthly tenancy, in the event of certain conditions not being observed..
Senator Pearce:
– Do you think the value should be increased to something that never existed, while a man folds his arms and does nothing?
Senator SENIOR:
– Two wrongs do not make a right. My point is that the penalty is altogether too severe for the offence. The scales of justice should be held evenly between the parties. While I do not wish to take from the Government what may be due to them, it should be our duty to prevent unfairness to private individuals.
Senator Pearce:
– This amendment will operate only if a lessee persists in a policy of deliberate obstruction.
Senator SENIOR:
– Would it not be better to fix some monetary penalty? Suppose the Government wanted to purchase a piece of land at Port Adelaide for post-office purposes. It might be a block that had been surveyed for many years, and the lessee might be residing in England, which would, probably, cause difficulty in connexion with the production of the lease. The Government might insist on the lease being produced within twenty-one days. In the event of the lease not being forthcoming, although the land might be held on a seven years’ tenure, compensation would be payable on the basis of a monthly tenancy, instead of a yearly tenancy, as provided in the present Act. Rather than reduce the interest in the lease to one-twelfth of what it really should be, why not fix a definite penalty? I do not blame the Government for fighting for their Bill, but honorable senators should look at both sides of the question.
Senator FAIRBAIRN:
Victoria
– It should be remembered by Senator Senior that an owner or lessee going away from home generally leaves a power of attorney or makes somebody his agent. In the event of a man being absent from Australia, there would, under Senator Drake-Brockman’s amendment, be a reasonable excuse for nonproduction of a lease. Therefore, the clause as proposed to be amended should be acceptable to the Committee. I think a leaseholder would be sufficiently guarded under it.
Senator FOLL:
Queensland
.- I am inclined to agree with Senator Fairbairn, but, instead of twenty-one days being allowed for the production of a lease, the period should be twenty-eight days.
Senator Pearce:
– This measure has been in operation for years, and there has been no complaint as to hardship.
Senator FOLL:
– In some cases difficulties have been placed in the way of the Government securing land for departmental purposes. It was only a little while ago that a site was. selected for a building in a big city in Australia,, arid it reached the ears- of a certain individual that the land was required, by the Government for departmental purposes. Immediately the land was purchased at a higher price’ than had’ been previously mentioned to ‘the Government. As a result of that the Government had to go to -the trouble, inconvenience, and expense of changing their plans and searching for another site not so suitable. I am quoting this instance to show that, in my opinion, many cases occur in which it is known that the Government are desirous of securing certain land, and that obstacles are then placed in their way for the purpose of getting a bigger price. We know perfectly well that when owners of property think that the Government need their land they do everything they possibly oan to enhance the price which the Government must pay. This Bill should not be framed solely from the point of view of .the person owning the land, and the Government should take some adequate steps to protect themselves. If the clause were accepted with the amendment suggested by Senator Drake-Brockman it would, to my mind, remove any possibility of hardship, and if the time were extended to twenty-eight days it would meet the case very well.
Senator ELLIOTT:
Victoria
.- With a view, of assisting the Minister (Senator Pearce), I would suggest to him that the- second paragraph in section 30 might very well be left out. As Senator Garling has pointed out, that paragraph seems to give a man a right, if he likes to be obstructive, to’ be treated as a tenant from year to year. He would not have this right in the ordinary way. To make the .position perfectly clear we should add after the word “ power,” in the first paragraph, “ and unless and until he shall produce his title he shall not be entitled to any compensation.” I do not think, however, that those words are really necessary, because the land is- acquired by the Commonwealth, and the owner has to put in a claim for compensation. In doing so he must set out his title’. To make the position’ perfectly clear we might add those words and omit the subsequent part cf the section. I da not, know why those words were placed there.
Senator GARLING:
New South Wales
– I rise to be advised of the position. I am told that., nothing that one can do in Committee with this- clause will have the effect of eliminating the second paragraph of ‘section 30 altogether. If so, the only alternative left for me is to accept the words proposed by Senator Drake-Brockman,. “ without reasonable excuse.” I think it is reasonable to put forward the argument, that the paragraph is unnecessary from the Crown’s point of view. It has created the very’ difficulties that the Crown is now trying to amend. The best way to amend the Act would be to take the second part of the section out altogether.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– I suggest to the Committee that it should pass the clause with the amendment suggested by Senator DrakeBrockman, and. I will undertake to have the matter looked at again with a view to seeing whether the Bill cannot be recommitted with a view to leaving out the second paragraph of section 30.
Amendment agreed to.
Clause as amended agreed to.
Clause 21 agreed to.
Clause 22’ (Claim for compensation).
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– -The object of this clause is to protect the Department where the claimants fail to notify a change of address after a claim has been lodged. Following on a claim the Minister may decide to make an offer to the claimant, and address it to his last notified address. The. proposed amendment will debar the claimant from saying that- the offer was not communicated to him.
Clause agreed to.
Clause 23 (Procedure on claim for compensation being received).
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– The only new principle in this clause is that contained in the proposed sub-section 4, to which I invite the attention of the Committee. By it anoffer may be made to two or more claimants jointly without apportioning the amounts. The amount of compensation is based upon the value of the whole land at a certain date, and the Department should not be called upon to settle claims as between the different claimants, who should settle among themselves.
Clause agreed to.
Clause 24 -
Section 37 of the principal Act is amended - (a) by omitting paragraph (d), and (b) by adding at the end thereof the following subsections : - (2)For the purposes of this section -
the Supreme Court shall be a Court of competent jurisdiction in all cases;and
a County, District, or Local Court the territorial jurisdiction of which extends over the place in which the land is situated shall, when constituted or presided over by a Judge or a police, stipendiary, or special magistrate, be a Court of competent jurisdiction in cases where the total compensation claimed does not exceed Five hundred pounds.
When an action for compensation has been instituted, the Court mayon the application of the Commonwealth, by order direct any person who has claimed compensation, or who appears to have had at the date of acquisition any estate or interest in the land, to join as a plaintiff in the action within a time specified in the order.
If any person so ordered fails to join as a plaintiff in the action within the time specified in the order, he shall be absolutely debarred from thereafter instituting any action for compensation against the Commonwealth in respect of the land.
When, by reason of the joinder of new plaintiffs or otherwise, the total compensation claimed in an action for compensation in a County, District, or Local Court exceeds Five hundred pounds, the action shall, on the application of the Commonwealth to- -
the High Court, he removed into the High Court; or
the Supreme Court, be removed into the Supreme Court; and shall thereafter proceed in the Court to which it is removed as if it had been instituted in that Court.
On the trial of the action the Court shall -
determine the total amount of compensation payable by theCommonwealth to the plaintiffs; and
where two or more persons are entitled to share in the compensation, determine the amount payable to each person, and the manner in which it shall be paid.
In any action for compensation, the following provisions shall apply in relation to the costs of the parties to the action, unless the Court for any special reason otherwise orders -
If the amount of compensation awarded is equal to or greater than the amount claimed in the action., the costs of the plaintiff shall be paid by the Commonwealth;
if the amount ofcompensation awarded is less than the amount claimed in the action, and is equal to or less than the amount offered by the Minister, the costs of the Commonwealth shall be paid by the plaintiff; or
if the amount of compensation awarded is. less than the amount claimed in the action, but is greater than the amount offered by the Minister, the Commonwealth shall pay the proportion of the costs ofboth parties which the excess of the amount awarded over the amount offered bears to the excess of the amount claimed in the action over the amount offered, and the plaintiff shall pay the balance.
It shall not, in any action for compensation,be necessary for the Commonwealth to pay compensation into Court, and the Commonwealth shall not in any way be prejudiced in its defence of the action by reason of non-payment into Court.
Section proposed to be amended - . . (d) The costs shall be in the discretion of the Court.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– Considerable doubt has arisen as to what is a State Court of competent jurisdiction, and this clause aims at defining that expression. As regards the joinder in the action of all persons claiming interest in the land, that at present is left to rules and procedure of the Court hearing the case. The practice, accordingly, varies in the different States. It is desirable to have a uniform procedure. Proposed sub-sections 3, 4, and 5 provide for this. Much expense and trouble will be saved by the establishment of a definite rule that the Court may in the one action determine the total amount of compensation payable by the Commonwealth, and, in addition, the amount pay- able to each person. Proposed sub-section 7 lays down definite rules as to the awarding of costs. This is considered to be an equitable provision, and insures uniformity in all the States. Regarding proposed sub-section 8 it is necessary, in some States, to pay compensation into Court to protect the interests of the Commonwealth. In other States that is not necessary. The practice does not appear to be necessary, and as it is desirable to have uniformity it is proposed to relieve the Commonwealth in this respect.
Senator GARLING:
New South Wales
– Those portions of the clause re- l ating to jurisdiction are, I think, necessary and wise amendments, but the kernel of this particular clause is the change that has been made in connexion with the costs of an action before the Court. Section 37 of the Act has a sub-section 1a, which states that the costs shall be in the discretion of the Court. That provision has applied for many years. It prevails, I think, in most ofthe States. It did so in New South Wales until the passing of the Closer Settlement Act. and I cannot call to mind any case where the Crown or a claimant suffered because the question of costs was left in the discretion of the Court, The Court takes a broad view of the situation. In awarding costs to the successful litigant, whether the claimant or the Crown, it does so having all the circumstances before it. I can see no good reason why we should depart from that procedure, or why we should, in a case where a claimant succeeds to the extent of getting an award from the Court which is not equal to the amount which he has claimed, but exceeds the amount which the Crown offered him, deprive him of any portion of his costs. If a writ had been issued for £5,000 for libel, and the case had come before a Court and a jury, and the jury had given judgment for the plaintiff for £1,000, there would be no question of deciding what proportion of the costs should go to the successful litigant. Having been successful, he would be entitled to what ho had won : that is to say, to what he was awarded and the costs he has been put to in winning it. There seems to be no reason in principle why the Crown should depart from the law as laid down in the Act, and no good reason has been put forward by the Minister for such a departure. This is a very mischievous at tempt to copy the legislation of the Mother State, where, in connexion with the Closer Settlement Acts, and only in that connexion, a provision of this nature was introduced. I could speak of instances where it has worked decidedly harshly against the litigant. I have a case in my mind in which every step that could possibly have been taken by the claimant was taken. He put all his cards upon the table, and tried to get the Crown to do so also, with the object of avoiding costs. He utterly failed, and the parties were engaged for three weeks in litigation over a matter which could have been settled at my table without any great expense to anybody. In the end we won, and under the Government’s present proposal we would be asked by the Commonwealth to go without our costs. This is a new step, and one that we ought not to take without very strong reasons being adduced in its favour.In connexion with the Federal Income Tax and Land Tax Acts, if a man appeals in one case against his assessment for income tax, or in the other case against his assessment for land tax, and in the latter case he does so almost always on the basis of the value of the land, theCrown does not say, “ If you do not win all you think you ought to win you must pay part of the costs.” In both those cases a fair provision is made that the costs shall be in the discretion of the Court. We ought not to depart from that position, but should still have as a protection to the Crown the power of the Court to award such costs as in its discretion it thinks fit to award either to the claimant or to the Crown. I would suggest that sub-section d of the existing Act be allowed to remain as it is, and that the proposed new sub-sections 7 and 8 should be left out. I am not submitting that as an amendment, but would prefer first to hear other honorable senators on the question, and the Minister on the necessity for the clause as it stands.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– The Government is submitting this amendment of the Act as a result of bitter experience. The position now is that the Commonwealth nearly always has to pay the costs, whether it wins or loses. If the amendment is carried, what injustice will it do? Let us see what the. provision will then be as regards costs. First of all, let it be noted that we retain paragraph c of section 37 of the Act, which reads -
If the Court is of opinion that the action might have been brought in a lower Court, costs, if awarded to the claimant, shall only be allowed on the scale applicable to costs in a lower Court, unless the Court certifies that special circumstances existed which made it proper to institute the action in the higher Court.
What is that for ? It is to deter extravagant and exorbitant claims. It is provided that the costs shall be applicable on the scale of the Court to which the claim would have been referred if it had bo°n made bond fide. With that provision in the Act, there is no necessity for paragraph d of section 37, so far as that phase of the question of cost* obtains.. But when we come to proposed sub-section 7 of this clause, it states that “ the following provisions shall apply in relation to the cost of the parties to the action, unless the Court for any special reasons otherwise orders.” In that proposed subsection a certain amount of discretion is given to the Court. It then proceeds-
- If the amount of compensation awarded is equal to or greater than the amount claimed in the action, the costs of the plaintiff shall be paid by the Commonwealth;
That is to say, if the Court upholds his claim, the Commonwealth has to pay the costs of both parties in full. Paragraph b says -
- If the’ amount of compensation awarded is less than the amount claimed in the action, and is equal to or less than the amount offered by the Minister, the costs of the Commonwealth shall be paid by the plaintiff.
It is well to know that in these cases of land, acquisition the Minister acts on certain information supplied to him, and where it is a matter of any magnitude I make the rule that I do not merely obtain the “ say-so “ of the officer of the Department, but I see that his opinion is buttressed by that of valuators, who chock the valuations given by departmental officers. We have access also to, other means of checking land values. Very often a value is put upon the land by the claimant himself for other purposes. Generally speaking, it is the desire of the _ Minister for the time being to avoid litigation. Litigation is. not the way to obtain popularity; and, therefore, if there is a doubt, lie will generally use his influence in the direction of obtaining a settlement. Where the finding of the Court is less than the amount claimed the costs of the Commonwealth are to be paid by the plaintiff, because the plaintiff has lost bis case. In paragraph c of the proposed sub-section the position is very fairly stated -
- If the amount of compensation awarded is less than the amount claimed in the action, but t is greater than the amount offered by the ‘Minister, the Commonwealth shall pay the proportion of the costs of both panties which the excess of the amount awarded over the amount .offered bears to the excess of the amount Claimed in the action over the amount offered, and the plaintiff shall pay the balance.
This is really a discouragement to any exorbitant demands, and is intended to deter any claimant from ‘rushing into litigation, but at the same time it offers ample protection for the genuine litigant who does not put forward any exorbitant claim. The addition of this proposed sub-section to the Act will enable the Court to hold fairly the scales as between the owner of land and the Government which seeks to resume it. Hitherto the Commonwealth has invariably had to pay the costs of both parties. This has been a direct incentive to litigation, because an owner, feeling that he has nothing to lose, may make his claim as exorbitant as possible. He thinks, no doubt, that it is a case of “ heads I win, tails you lose,” because invariably the Commonwealth has to pay the costs.
Senator Garling:
– That is not so.
Senator PEARCE:
– That has been our experience.
Senator Garling:
– Then something must be wrong with the office-.
Senator PEARCE:
– It has been, our experience that where the question pf costs is left to the discretion of the Court, they have to be paid by the Government.
Senator Drake-Brockman:
– Then you must have a poor set of officers in your Department.
Senator PEARCE:
– No. The Court appears to think, “ Here. on the one hand is a wealthy Common wealth, and on the other a man whose land is being taken from him. We will give the costs against the Common wealth.” It appears to be thought that the Government, like a corporation, has neither “ a body to be kicked nor a soul to be damned.” An examination of the rules laid down will show them to be not inequitable, but a desirable protection to the Commonwealth.
Senator DRAKE-BROCKMAN:
Western Australia
– If there was not a better set of rules already in existence, those now under consideration might be acceptable. The Minister’s idea of our Courts of justice is most amazing. It is an astounding reflection on the Judiciary of Australia to suggest that, because a wealthy Commonwealth is one party to a litigation, our Judges are influenced in determining how costs shall be paid. We have always been proud, and rightly so, of our Judiciary. Under the law, the question of costs is left to the discretion of the Court. We cannot improve on that principle. We know perfectly well that those who preside over our Courts of justice are as. fair as it is possible for men to be in deciding, who shall pay the costs’ of an action. On this question a decision is usually arrived at only after both parties have been heard and the whole question thoroughly threshed out. To lay down a set of rules for the guidance of our Judges in the matter of costs is an absurdity, as well as a very grave reflection upon their integrity, and it is something which this Parliament ought not to do. All who have had anything to do with Court work know that while the rule is that costs shall follow the verdict, the rule is not always observed. Sometimes there is evidence of fraud or other improper conduct on the part of a litigant, and that may deprive him, if successful, of hie costs. The general rule is, and always ought to be, that the question of costs shall be left to the discretion of the Court. The Minister said just now that it was the painful experience of the Government that costs were almost invariably given against them. My reply is that the sooner the Government clear out those officers who are dealing with compensation claims the better.
Senator Pearce:
– TheCourts sometimes have upheld our valuations, and then given costs against us.
Senator DRAKE-BROCKMAN:
– It is no good the Minister telling me that. If proper action is taken by officers of the Department the Government will get costs if they deserve them, but not otherwise. If Government valuators takethe stand that a block of land which is to be re sumed compulsorily has not the value the owner thinks it has, and if the Government are not successful in the action, they must put up with the consequences. It is no good suggesting- and I speak from experience - that it is wise to lay down a set of rules for the guidance of our Judges. It is most unwise to do this.. In the first place it is foolish, and in the second it is an unfair commentary upon our Judiciary which I personally regret very much. I move -
That paragraph (a) be left out.
Senator GARLING:
New South Wales
– I should like to emphasize the point I have raised with regard to the question of costs by referring honorable senators to section 38 of the principal Act, which provides -
-
1 ) If within six months after a claim for compensation became a disputed claim for compensation -
- it has not been determined by agreement between the Minister and the claimant; . . . the Minister may apply to the High Court or to a State Court in which an action for compensation might be instituted to determine the claim.
-
The Court may make such order as. to costs as it thinks fit.
Thus where the Crown brings a matter before the Court, apparently there is bo objection to the Court making such an order as to costs as it thinks fit, but in the clause now under discussion, the Minister (Senator Pearce) takes the stand that where an owner makes a claim and litigation results, the question of costs must not be in the discretion of the Court. If we are going to allow the Court to make an order as to costs in a case which the Minister may bringbefore the Court, why not allow the Court also to determine the question of costs in cases where individual owners bring claims before the Court? I draw attention to this apparent anomaly in the clause under notice and section 38 of the Act.
Question - That the words proposed to be left out be left out - put. TheCom- mittee divided.
Ayes . . . . . . 11
Noes . . . . 8
Majority . . . . 3
Question so resolved in the affirmative.
Amendment agreed to.
Amendments (by Senator DrakeBrockman) agreed to -
That in paragraph (6) the -words “at the end thereof “ be left out, with a view to insert in lieu thereof the words “after paragraph (d).”
That proposed sub-section (7) be left out.
Senator GARLING:
New South Wales
– I think that proposed sub-section8 should be left out. This is the proposed sub-section which provides that it shall not be necessary for the Crown to pay compensation into Court which it is offering to meet a claim put forward by a dispossessed owner. It is always the practice of the Courts to have payments made into Court of amounts considered sufficient to satisfy the just claim of a litigant.
Senator Pearce:
– No; the practice varies in different States.
Senator GARLING:
– The Minister refers to land cases only; but I am speaking of the general practice in the civil Courts. Where a man has had a writ issued against him for a certain sum of money, if he considers that the claimant is entitled to less than he has claimed and no more, by paying that amount into Court he ceases to become liable to any costs at all, if the verdict of the Court does not exceed the amount which he has paid into Court to meet the claim. If a man makes a claim for £5,000, and the Crown considers that £2,000 is full compensation, by paying the £2,000 into Court it would automatically cease to become liable for costs if the verdict did not exceed the amount paid into Court.
Senator Pearce:
– Where is the necessity of compelling the Crown to pay money into Court?
Senator Drake-Brockman:
– If what Senator Garling asks is not provided for, it will be necessary to amend a great many Court rules.
Senator GARLING:
– Not only will that be the case, but it will be necessary to make amendments later in this Bill, and the consideration of later provisions will be made very difficult.
Senator Lynch:
– What is the present position ?
Senator GARLING:
– The present position is that in ordinary civil Courts, if the Crown thinks that a certain sum is fair compensation, and it pays that amount into Court, and a verdict is given only for that amount, the Crown is no longer mulct in costs if the litigant chooses to go on. If he does insist upon going on the litigant must pay, not only his own costs, but the costs of the Crown.
Senator Pearce:
– No, that is not our experience. Our experience is that the Crown pays the costs in every case, whether it wins or loses.
Senator GARLING:
– I can tell honorable senators something that happened in New South Wales. It is contended that in connexion with claims of this kind, the claimant always has the thick end of the stick. I had a case in which an. owner valued his land at £8 per acre. The Crown would give only £6 for it. In spite of every inducement to them to come to the table and consider the matter, the Crown decided to fight the case, and did fight it for a fortnight or three weeks, with the result that the Board considering the case gave my client, the owner of the land, £8 2s. 6d. per acre. Although the Board gave my client £2 2s. 6d. per acre more than the Crown offered, he had to pay the whole of his costs, although he was the successful litigant. There was no provision made for the Crown to pay the costs, and they did not pay them. They attempted to force the hand of the litigant by putting him into the position that even if he won he would not get costs. It should be no hardship to the Crown to pay into Court the amount of compensation which it considers just. It is supposed to be in a position to immediately satisfy a judgment of the Court, and it should, therefore, be in a position to pay into Court what it considers just compensation in connexion with any claim. If it did so, it would stop proceedings or they would be carried further entirely at the cost of the litigant, if he chose to go on.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– To show that what is proposed in this clause is not new, I may refer honorable senators to sections 65 and 66 of the Judiciary Act. They read -
- No execution or attachment, or process in the nature thereof, shall be issued against the property or revenues of the Commonwealth or a State in any such suit; but when any judgment is given against the Commonwealth or a State, the Registrar shall give to the party in whose favour the judgment is given, a certificate in the form of the schedule to this Act, or to a like effect.
- On receipt of the certificate of a judgment against the Commonwealth or a State the Treasurer of the Commonwealth or of the State, as the case may be, shall satisfy the judgment out of moneys, legally available.
The law is the same in Tasmania and in Victoria. The satisfaction of the judgment is a statutory obligation. The honorable senator’s argument has been based upon dealings between private individuals, but the Crown is not a private individual. The Crown should not be asked to pay an amount into Court.
Senator Wilson:
– In matters of litigation, why should there be any difference between the Crown and an individual?
Senator PEARCE:
– There is a difference, because the Crown cannot in any conceivable circumstances default a judgment of the Court; whereas it is not only conceivable, but known, that private individuals frequently do make default when called upon to satisfy a judgment.
Senator Wilson:
– May not a litigant find it difficult to get money from a reluctant Treasurer?
SenatorPEARCE. - Not at all. Once a judgment is given against the Crown in a case the money to satisfy it is paid out automatically. There isin consequence, no reason why the Crown should pay money into Court pending the result of litigation. I ask the Committee to recognise the fact that the Crown is in a different position from that of a private individual, and, on that account, to reject the amendment.
Senator FAIRBAIRN:
Victoria
– I agree with the Minister (Senator Pearce) that the Crown occupies a different position from that of a private individual. The Crown is invariably regarded as a “ good pay.” My idea of the payment of money into Court is that it is done where there is a fear that a litigant may be unable to satisfy a judgment if the verdict is given against him. The question has been raised whether money can be more easily obtained from the Treasurer than from a Court.
Senator Garling:
– The payment of money into Court to meet a claim’ nearly always brings the litigation to an end, because the claimant prefers to take his chance to carrying on litigation when he knows that he will have to pay the costs. He considers that “ a bird in the hand is worth two in the bush.”
Senator FAIRBAIRN:
– I consider that where a judgment is given against the Commonwealth the position is as good for the litigant as if the money had been paid into Court.
Senator Garling:
– I know of cases in which men have been kept waiting for eighteen months for their money by the Government.
Senator FAIRBAIRN:
– I am surprised to hear that. It appears to be suggested that compelling the Crown to pay money into Court is the only way of extracting money from the Crown. That seems to be an extraordinary attitude to take up in framing legislation. I think we must assume that if a Court decides against the Crown, the Crown will pay up. There must be some special circumstances to explain the delay in payment in the case to which Senator Garling has referred.
Senator Pearce:
– The Home and Territories Department deals with these cases, and surely my word, as Minister for Home and Territories, should be taken at once when I say that when a Court has given judgment that is the end of the matter, and the Government at once pays over the money necessary to satisfy the judgment.
Senator FAIRBAIRN:
– Perhaps Senator Garling can give the reason why the money was withheld for eighteen months, and also explain why the person entitled to it did not demand payment.
Senator Garling:
– I did not mean to infer that payment was withheld after judgment was given. In cases where an agreement has been arrived at between the parties, sometimes from eighteen months to two years have elapsed before payment has been made by the Crown.
Senator FAIRBAIRN:
– I assume that the Government are as honest as ordinary individuals, and that when they have entered into an agreement to pay they will discharge their obligation within a reasonable time. I do not think that paying into the Court will accelerate settlement, and in this instance provision should not be made in that direction.
Clause, as amended, agreed to.
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27-
-
Section forty of the Principal Act is repealed, and the following section inserted in its stead: - “40. - (1) Compensation shall boar interest at the rate of three per centum per annum for the period for interest set forth in this section. “ (2) The period for interest shall commence -
- in the case of compensation under Part III. of this Act - on the date when the right to compensation arises;
- in the case of compensation under Part IV. of this Act (other than compensation toa mortgagee) - on the date upon which the claimant ceases to beneficially occupy or use the land; and
- in the case of compensation to a mortgagee - on the expiration of six months from the date of acquisition of the land.
- on the date when payment is made to the claimant; or
- on the date when the compensation is deposited in the Treasury; or
- where the’ compensation is determined in an action for compensation or a judicial proceeding, and is not more than the highest amount offered by the Minister in satisfaction of the claim - on the date when the offer is made to the claimant; or
- where the Minister gives notice to the person entitled to compensation that the compensation is ready for payment, and the person does not, on or before a date specified in the notice, attend and receive payment - on the date specified in the notice, whichever is the earliest date.”
Section proposed to be repealed -
Compensation shall bear interest at the rate of 3 per centum per annum from the date of the acquisition of the land, or the time when the right to compensation arose, until payment thereof is made to the claimant or until the amount thereof has been deposited in the Trea- sury.
Provided that, where the compensation awarded in an action for compensation, or determined in a judicial proceeding, is not more than the amount offered by the Minister in satisfaction of the claim for compensation, the compensation shall only bear interest to the date when the offer of the Minister is communicated to the claimant.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– This is a clause which needs some explanation. Under section 40, as it stands at present, the Commonwealth has, in many cases, to pay interest on the compensation awarded to the owner, although the owner continues to occupy and use the land for a considerable period after the date of the acquisition. It is proposed that the right to interest shall commence on the date on which the Commonwealth takes possession of the land. Payment of interest on compensation payable to a mortgagee will not commence until the expiration of six months after the acquisition of land, as the mortgagee is paid interest under the mortgage until payment of compensation within the maximum of six months. The provisions as to when interest ceases speak for themselves. I think that is a fair proposition. A person who is using the land cannot claim interest on the amount payable.
Senator GARLING:
New South Wales
– Owing to a misunderstanding, and, perhaps, a lack of knowledge of the procedure in Committee, I missed my opportunity in speaking on a previous clause. This clause proposes to amend section 40 of the principal Act, under which interest on compensation is payable at the rate of 3 per cent. per annum. In the year 1906 interest at the rate of 3 per cent. was fixed, but notwithstanding that much higher rates now prevail, a claimant is to receive only 3 per cent. interest on the amount of compensation between the date of acquisition and the time the money is received. When the principal Act was passed the rates were as low as 21/2 per cent., and most of the States were borrowing at from 3 per cent. to 31/2 per cent., and we should therefore review the position and endeavour to place the matter on an equitable basis. In paragraph b of proposed new sub-section 2 the words “ceases to beneficially occupy or use the land ‘’ are (included. Will the Minister (Senator Pearce) say what is really meant by the words “beneficially occupy or use the land “ ? A person may not be occupying or using the land to his benefit.
Senator Pearce:
– If means where he continues to occupy the land without payment of rent owing to pending compensation.
Senator GARLING:
– The word “ beneficial “ has been interpreted in, I think, an English decision of very recent date, and by a High Court, in a manner which is not in accord with the meaning applied to these words in general use. Perhaps the Minister will refer tho matter to the Crown Law officers to ascertain whether the meaning which he has given is that which a Court would ascribe to such words. In paragraph c 2 it is provided that in tho case of compensation to a mortgagee the period for interest shall commence on the expiration of six months from the date of the acquisition of the land, and I would like to know what provision had been made for interest in the intervening period.
Senator Pearce:
– He has paid interest under the mortgage until the payment of the compensation is due, and he cannot have it both ways.
Senator GARLING:
– It is not necessary to have it both ways, and I would like, a further explanation from the Minister on that point. In paragraph b of proposed new sub-section 3 provision is made that interest shall cease on the date on which the money is deposited in the Treasury. I would suggest that payment of. interest should be continued until the claimant is notified that the compensation has been paid into the Treasury, and that it will be available on the date mentioned in the notice. Under this provision the Department can simply deposit the money in the Treasury and allow it to remain there.
Senator Pearce:
– This is limited to a certain class of cases.
Senator GARLING:
– This particular matter is not.
Senator Pearce:
– Those mentioned in section 43 are not.
Senator GARLING:
– The section we are dealing with apparently has no relation with section 43, which has been drawn up to meet a specific, case, and in connexion- with which I have no objection to offer. If this is not intended to do as I suggest, the position should be made quite clear. Paragraph c of proposed sub-section 3 reads -
Where the compensation ‘is determined in an action for compensation or a judicial proceeding and is not more than the highest amount offered by the Minister in satisfaction of the claim - on the’ date when the offer is made to the claimant; or…..
The word “the” does not necessarily refer to tho highest offer. The Depart.ment may have been negotiating, and in the course of negotiations there may have been, several offers, and it should be made quite clear that the date on which interest shall cease to be paid shall be the date when “ such “ offer, namely, the highest, is accepted.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– ‘Senator Garling was courteous enough to supply me with the various points on which he has commented, so that I might have an opportunity of passing thom on to the Crown Law officers. Some of them are technical and legal, but that relating to interest, of course, is not. Whilst 3 per cent, does at. the moment seem to bc a low rate of interest, we have 1o remember that we are considering a Bill to amend an Act which has been in force practically without amendment for sixteen years, and the rate of interest vrc. now provide may be in force for another sixteen years. The interest rate is falling, and’ it is not unreasonable to suppose that before very long money will be available somewhere near the old rates. Wo should, therefore, not provide for a very high rate of interest. I assume that a Court making an award would take into consideration as one of the losses to which ;i claimant had to be put, the fact that during the time the claim had been pending he had received interest at the rate of only 3 per cent..
Senator Benny:
– Should we not say the “current” rate of interest?
Senator PEARCE:
– What is the current rate of interest.?’
Senator BENNY:
– The bank rate.
Senator PEARCE:
– No, the Government can borrow at less than the bank rate, and in view of all the circumstances I advise the Committee to leave the clause as it stands. The honorable senator also referred to paragraph b of proposed new sub-section 2. This applies to an owner who continues to occupy the land without payment of rent, after -the land has been vested in the Commonwealth. The honorable senator notified me that he proposed to move to add after the word “ date “ the words “ of the acquisition of the land or the date.” Paragraph b would then read -
In the case of compensation under Part IV. of this Act (other than compensation to a mortgagee), on the date of the acquisition of the land, or the date upon which the claimant ceases to beneficially occupy or use the land; and
I think the amendment would improve the clause, and I accept it.
Senator Garling:
– I wish the Minister would bo good enough to move the amendment.
Senator PEARCE:
– I am quite prepared to do that.
Amendments (by Senator Pearce) agreed to -
That after the word “ date “, in paragraph 6, of proposed sub-section 2, the words “ of the acquisition of the land or the date “ be inserted.
That after the word “ land “ in paragraph (b) of proposed sub-section 2 the words “ whichever is the later “ be inserted.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– If Senator Garling will refer to the memorandum which has been distributed among honorable senators, he will’ find that the question of the provision for interest for the intervening period is fully dealt with in the proposed new section 51. Now I come to the honorable senator’s other point as to payment of money into the Treasury. I am informed, and I suppose it is the practice, that this is limited to the cases mentioned in section 43. The Crown Law officers, who have fully considered the point raised by Senator Garling in the communication he made to me previously, say that there is no need specially to provide for this in paragraph b of the proposed sub-section . 3, and the officers ask that that paragraph shall be allowed to stand as printed. As to paragraph c of this proposed sub-section, I cannot see the necessity of any amendment. The provision seems equitable as it stands, and I cannot follow the honorable senator’s reasoning.
Senator Garling:
– I suggested that the word “ the “ before “ offer “ should be struck out, and that the word “ such “ should be inserted in its place.
Senator PEARCE:
– The Crown Law officers say that “ the offer “ is identified by the preceding words “ the highest amount offered by the Minister.” I have no serious objection to the amendment.
Amendment (by Senator Garling) agreed to -
That in paragraph (c) of proposed subsection 3, the word “ the “ before the word “ offer “ be left out, and the word “ such “ be inserted in lieu thereof.
Senator GARLING:
New South Wales
– The Minister (Senator Pearce) was asking what alternative there would be for the 3 per cent. I would suggest that it be the rate of interest paid to the Commonwealth Bank from time to time on current overdrafts.
Senator Benny:
– Why not leave it to the discretion of the Court to decide what is the current rate?
Senator GARLING:
– People would always have to be going to the Court. I desire to move for the deletion of the word “ three “–
The CHAIRMAN (Senator Bakhap:
TASMANIA
– The honorable senator has lost his opportunity to deal with that part of the clause at the present stage. Means are available to him to raise the point later.
Clause, as amended, agreed to.
Clauses 28 to 30 agreed to.
Clause 31-
Section forty-eight of the Principal Act is amended by omitting sub-sections (1) to (4), and inserting in their stead the following subsections: - “ ( 1 ) If any land acquired under this Act by agreement is subject to a mortgage, the Minister may pay off the mortgage at any time at which the principal due under by the mortgage is repayable. “(2) If the principal due under the mortgage is not repayable at the date of acquisition, or at any time within six months thereafter, the Minister may give notice to the mortgagee that he intends, at the expiration of six months from the date of the notice, to pay off the mortgage, and may, at any time after that period has expired, pay to the mortgagee the amount to which he is entitled under this section.
Section proposed to be amended - (1)If any land acquired under this Act by agreement is subject to a mortgage, the Minister may pay off the mortgage.
In order thereto the Minister shall give notice to the mortgagee that he intends at or before the expiration of six months from the date of the notice to pay off the mortgage and to pay to the mortgagee the amount to which he is entitled under this section.
Amendment (by Senator Pearce) proposed -
That the word “by” (second occurring) in proposed sub-section (1) be left out.
Senator GARLING:
New South Wales
– The Minister is dealing with a printed error. I suggest that the words “ at any time at which the principal due under the mortgage is repayable “ are unnecessary. Of course, a mortgage can be repaid at any time at which it is due. It seems to me that sub-sections 1 and 2 conflict.
Senator Pearce:
– Sub-section 2 is merely an extension of the power contained in sub-section 1.
Senator Benny:
– Itmay be surplusage, but it does not do any harm.
Amendment agreed to.
SenatorGARLING (New South Wales) [5.50]. - The proposed new sub-section 3 is very important, having regard to the fact that the Grown is asking for the power to interfere with a contract between a mortgagor and a mortgagee with regard to the date of payment. Subsection 36 states that the amount to which a mortgagee is entitled under the section shall be “ at the lowest rate secured by the mortgage (whether for prompt payment or otherwise) at the date upon which the amount to which the mortgagee is entitled under this section is paid or tendered to the mortgagee.” It goes on to provide in paragraph e (ii) that -
Should a loss of interest reasonably be expected, regard being had to the rate of interest secured by the mortgage, and the rate of interest obtained or likely to be obtained on the re-investment- a reasonable allowance for loss of interest until the date on which the principal would have been repayable (with or without notice).
I suggest that that loss is almost impossible to ascertain. It is guesswork, and yet it has to be taken into consideration. It is almost impossible. My experience of handling money for investors is that when an investment is paid back even on the. due date of the mortgage, and the mortgagee seeks to find a further investment for the money at the rate of interest that the mortgage was previously bearing, he is met with very great difficulty, and there is often a delay of many months before he can re-invest the money at that rate. In those circumstances, I think it would be better to do what is done in all cases at the present time where a mortgage is sought to be paid off before its due date. I have made the suggestion to the Minister that “ it would be better to acknowledge the mortgagee’s right to demand interest up to the end of the mortgage term, and to provide that in the event of the re-investment by him of the money he should account to the Crown therefor and agree to an adjustment, or else that the Crown should give him the option of taking his money on the day of payment together with, say, six months’ interest in lieu of notice, in addition to interest up to the date of payment. I realize that I have to make that point good to the Senate. The alternative is simply that he should get his money up to date of payment of the compensation money, plus an uncertain sum for interest to make good the loss which he may sustain between the day when the money was paid to him and the day when it was re-invested. That is so problematical and so hard to determine that it becomes practically an impossibility to say how long the money will lie idle before being re-invested. The other alternative is the simple suggestionthat I make - acknowledge his right to demand interest up to the end, of the mortgage term, but provide that in the event of the re-investment of the. money before the end of that term, he shall account to the Commonwealth for the interest that he has made. Suppose he was receiving 7 per cent. on a mortgage that the Crown had taken over; and that he had only been able to re-invest the money at 6 per cent., the fact that he had invested it would be definite evidence, and the Crown would then ask him to reimburse them to the extent of the difference. But whathe would infinitely rather prefer, and what would cost the Crown less, would be to make the provision that is made in ninety-nine cases out of a hundred when a mortgagor seeks to pay a mortgagee before the time is up; he should be allowed to do it by paying interest up to the actual date of payment of the money, plus an additional six months’ interest.
Senator PEARCE:
Minister for Home and Territories · Western Australia · NAT
– I would suggest to Senator Garling that while we may, perhaps, not approach absolute accuracy, we have, I think, provided a rough and ready means of applying substantial justice. I have had the honorable senator’s proposal carefully examined. The trouble seems to me to be that after the land has been acquired, and after the judgment has been given in a disputed case, subsequent events will determine the< rate of interest to be paid for the period between the time of the payment of the money and its re-investment. We could not take the main’s word for it, but would have to make an investigation. The process would be interminable. The man, in the meantime, might have speculated in shares. The bank rate of interest is a very determining factor on the interest rate on mortgage. That fact is known. The bank rate is taken to be & fair rate of interest to pay during the period. While that method1. does not arrive scientifically or exactly at the amount of the loss, it does arrive at it in a rough and ready way. At any rate, it provides finality. The rate of interest is a fixed thing, and the business can be easily cleared up. I would ask Senator Garling not to press bis suggested amendment.
Clause, as amended, agreed to.
Progress reported.
Senate- adjourned at 5.58 p.m.
Cite as: Australia, Senate, Debates, 6 September 1922, viewed 22 October 2017, <http://historichansard.net/senate/1922/19220906_senate_8_100/>.