Jones v The Commonwealth

High Court of Australia|1963-07-01|Before: Owen JJ

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Jones v The Commonwealth [1963] HCA 43

ORDER Demurrer overruled with costs. Judgment in the action declaring that the land mentioned in the statement of claim was not acquired by the Commonwealth by virtue of the publication in the Gazette on 8th April 1963 of the notice of acquisition dated 5th April 1963. Order that the defendants pay the plaintiff's costs of the action.

This is a demurrer by the defendants to a statement of claim. The action is by a landowner who complains of a notice of acquisition under the Lands Acquisition Act 1955-1957 Cth. The statement of claim discloses that the landowner resisted the acquisition and impugned its validity. The defendants demurred to the statement of claim. In the proceedings the notice of acquisition happens to be set out in full in the ground of demurrer. But in any case in the initial part of the statement of claim its effect is set out with considerable fidelity. It is desirable to set out the terms in which it is expressed: "It is hereby notified that His Excellency The Governor-General acting on the advice of the Federal Executive Council has authorized pursuant to the provisions of the Lands Acquisition Act 1955-57, the acquisition by compulsory process of the land hereunder described, and I declare that the said land is acquired by the Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General - The Australian Broadcasting Commission at Ripponlea, Victoria - (D. 5374) - Ex. Min. No. 201). Dated this 5th day of April One thousand nine hundred and sixty three."

Under the law it is necessary that a notice of acquisition should show the public purposes for which the land is acquired. Under s. 10 (3) and (4) in the case of compulsory acquisition the Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the land is acquired under the Act for the public purpose approved by the Governor-General, and upon the publication of the notice in the Gazette the land to which the notice applies is, by force of the Act, vested in the Commonwealth. An attentive reading of the notice of acquisition set out above will at once show that there must be a question whether it states any "public purpose" at all. I do not quite know what is intended by saying that the land is acquired "for the following public purpose The Australian Broadcasting Commission at Ripponlea, Victoria". It appears to me that it is essential under the provisions of the statute which I have stated, to express the public purpose. It is not enough to leave it to inference. There is a number of reasons for this. One is that under the Constitution the power of the Commonwealth is limited to the acquisition of property on just terms for any purpose in respect of which the Parliament has power to make laws: s. 51 (xxxi.). Another reason is that the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose. A third reason is that under s. 12 of the Lands Acquisition Act 1955-1957 a copy of the notice must be submitted to each House of Parliament and either House may within thirty days by resolution declare it void and of no effect. What exactly was intended by the authors of the notification may no doubt be seen by speculation and deduction and so on but for myself I think that it is intended that the purpose should be expressed and not left to inference. In the present case no doubt it is possible to infer with some confidence that the purposes which the Australian Broadcasting Commission exercise in point of fact provide the purpose which was in mind; but the Act of Parliament is not satisfied by speculative inferences. The purpose must be stated. What appears to have been stated is, if read literally, that there is a public purpose and it is a statutory corporation at Ripponlea. What the statutory corporation is can be found from the Broadcasting and Television Act. I do not regard a corporation as a purpose within the meaning of this statute. What it does may afford purposes, what it desires to do may afford purposes, what it is authorized to do may afford purposes, but that is not the same thing as the corporation itself.

For those reasons I think the notice of acquisition is bad and that means that the acquisition did not take place. It follows that the demurrer to the statement of claim must be overruled.

It was not for the reasons I have given that the plaintiff brought the action. The plaintiff, however, did support this ground when it became apparent that it would be considered. It would be absurd to proceed with an action which assumes the existence of an acquisition when in point of law the acquisition did not take place.

The matter we have decided really disposes of the whole action and to the order overruling the demurrer should be added a declaration that the land was not acquired by the Commonwealth and vested in it.

At the outset of the hearing of this demurrer a point not taken in the statement of claim was argued. This point relates to the notice of the acquisition of the land. The part of the notice which is in question is the Minister's declaration of its purpose. What the Minister declares in the notice is this: "I declare that the said land is acquired by the Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General - The Australian Broadcasting Commission at Ripponlea, Victoria". It is contended that the Minister has failed to comply with s. 10 (3) of the Lands Acquisition Act 1955-1957 and the notice is therefore bad. If this contention is right the acquisition of the land is void. Section 10 (2) empowers the Governor-General to authorize compulsory acquisition "for a public purpose approved by the Governor-General". Sub-section (3) says: "The Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the land is acquired under this Act for the public purpose approved by the Governor-General". The Minister's declaration made in pursuance of these provisions states the public purpose approved of by the Governor-General in the authorization which the Governor-General made of the acquisition. The Minister has complied strictly with the provisions of sub-s. (3)

The question, therefore, which arises on the notice of the acquisition of the land which the Minister published in the Gazette is whether "The Australian Broadcasting Commission, at Ripponlea, Victoria" is a "purpose in respect of which the Parliament has power to make laws" - a question under s. 51 (xxxi.) of the Constitution. The statement of claim - pars. 4 and 5 - is framed on that basis. The contention for the plaintiff that the notice of the acquisition of the land does not state the purpose for which the land is acquired or that it is not stated with sufficient certainty is inconsistent with pars. 4 and 5.

In my opinion the words "The Australian Broadcasting Commission" state a "purpose" in the relevant sense. They mean in this context more than this corporation as an entity. The words are explicitly used in relation to the public purpose approved by the Governor-General under sub-s. (2) of s. 10. Whether The Australian Broadcasting Commission is such a "purpose" is a question raised by this demurrer.

I go to s. 51 (vii.) of the Constitution to draw an analogy. This is a legislative power to make laws with respect to lighthouses etc. The word "lighthouse" standing alone may not aptly describe a purpose in the ordinary sense. Nevertheless, because the word is a subject included in s. 51 (vii.) it would designate a "purpose" in the context of a notice of an acquisition of land published under the Lands Acquisition Act. Would it not be a good exercise of the power given to the Minister by s. 10 (3) to declare in accordance with an authorization of the Governor-General under sub-s. (2) of a compulsory acquisition that the land is acquired for the following purpose approved by the Governor-General - Lighthouse at Gabo Island, New South Wales?

It is not, in my opinion, to the point to say that the words "The Australian Broadcasting Commission" are not apt to describe a purpose because the words are the name of a corporation: nor is it to the point to say, as is contended, that the words do not with certainty convey to the plaintiff, to the members of the Legislature or to the general public the purpose for which the land is being taken. The meaning of the Minister's declaration in the notice as to purpose is a question of construction. The Minister has in fact published the words describing the purpose used in the Governor-General's authorization of the acquisition. This is what s. 10 (3) requires. The acquisition having been challenged, it is for the Court to decide whether "The Australian Broadcasting Commission at Ripponlea, Victoria" is a "purpose in respect of which the Parliament has power to make laws". I think it is clear from the wording of the notice of the acquisition of the land that the land is at Ripponlea in Victoria and that it is acquired for the purpose of The Australian Broadcasting Commission. It is not in doubt what the purpose of this body is. Surely its purpose is to conduct radio and television. Assuming that these activities are within the scope of Federal legislative power (the proposition challenged by the plaintiff) the purpose also extends to any matter which is incidental to the conduct of radio or television. I cannot agree that the purpose of the acquisition mentioned in the notice is of uncertain or ill-defined meaning or character. Radio broadcasting is a purpose in respect of which the Parliament of the Commonwealth has power to make laws: The King v. Brislan; Ex parte Williams [1] . The question whether television is within the subject-matter defined by s. 51 (v.) of the Constitution has not been argued. At this stage of the action I am not prepared to hold that the notice of the acquisition of the subject land is invalid.

The statement of claim alleges the publication in the Gazette of a notice of compulsory acquisition of the plaintiff's land under the Lands Acquisition Act 1955-1957 Cth "for the following public purpose approved by the Governor-General: - The Australian Broadcasting Commission at Ripponlea, Victoria".

The pleading proceeds to place its own interpretation, or rather alternative interpretations, upon this statement of so-called purpose, and to suggest ground for a decision that the purpose to be discovered from it is not one in respect of which the Parliament has power to make laws, that the purported acquisition was therefore not for a "public purpose" as that expression is defined in s. 5 (1) of the Act, and that therefore s. 10 (4) of the Act did not operate upon publication of the notice to vest the plaintiff's land in the Commonwealth. A further ground of attack appearing from the statement of claim is that the purported acquisition is one forbidden by s. 6 (2) of the Act, as being an acquisition of land which, under the laws of a State, is dedicated or reserved as a public park or otherwise for the purposes of public recreation.

At the threshold is the question whether any purpose is declared by the notice at all. Plainly no purpose is expressed. Is it possible to spell out a sufficient declaration of purpose? What is a sufficient declaration is a question to be answered upon consideration of the provisions of s. 10 of the Act, with a lively recognition that the very validity of compulsory acquisition provisions in a Federal Act depends upon their having such an operation that they are laws with respect to the compound conception, as it was called in W. H. Blakeley & Co. Pty. Ltd. v. The Commonwealth [1] , of the acquisition of property for any purpose in respect of which the Parliament has power to make laws: The Constitution, s. 51 (xxxi.). The Lands Acquisition Act is a general acquisition law, and what it has to say about declaring the purpose of a compulsory acquisition must be so intended that action taken under it to bring about such an acquisition will be such as to give the acquisition the objectively discernible characteristic denoted by the words "for a purpose in respect of which the Parliament has power to make laws".

That intention amply appears in s. 10. The Governor-General is empowered, on the recommendation of the Minister, to authorize the acquisition of land by compulsory process "for a public purpose approved by the Governor-General": sub-s. (2). The Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the land is acquired under the Act "for the public purpose approved by the Governor-General": sub-s. (3). Upon the publication of the notice in the Gazette the land is vested in the Commonwealth: sub-s. (4).

Plainly there must exist in the first instance a purpose sufficiently formulated to be stated and made the subject of a recommendation to the Governor-General, and to be specifically considered by him as a "public purpose" and approved as such. And equally plainly the notice must so define the purpose as to give the acquisition which results from its publication the inherent quality of being in truth an acquisition for a "public purpose". It necessarily follows from these considerations that a purpose must be specified upon the face of the notice. Though no particular form of words is required, a purpose must be identified and declared with certainty.

In the notice alleged in the statement of claim all that is done in relation to purpose is to name a statutory corporation and describe it as "at Ripponlea" (where the plaintiff's land is situate). It may perhaps be gathered that the purpose is to make the land available to the corporation for such uses as the corporation may decide upon from time to time. If so, it may be proper to assume that the corporation would always decide upon uses within the limits of the statutory powers which it believed to be validly conferred upon it by law. But its belief might be wrong. It might be a belief founded upon a misinterpretation of a statute of the Commonwealth, or a misinterpretation of the Constitution. The purpose of making the land available to the corporation therefore is not a purpose in respect of which the Parliament may make laws. But the fatal defect of the notice is that, far from characterizing the acquisition as one for a defined purpose, it stops short of committing itself on the subject of purpose. It leaves the purpose hinted at but uncertain. For that reason it cannot be held, in my opinion, to be a notice upon the publication of which s. 10 (4) could operate to vest the plaintiff's land in the Commonwealth.

I agree in the order proposed by the Chief Justice.

I agree that the notification in question does not specify or state unequivocally any "public purpose" and that this is a fundamental and fatal defect. That being so, it is not open to us to embark upon consideration of the other questions hypothetically raised by the demurrer and I agree that the order proposed by the Chief Justice should be made.

I agree that the notice upon which the validity of the acquisition here in question depends does not declare a "public purpose" for which the land is being compulsorily acquired and that, accordingly, the notice is bad, the demurrer fails and the action succeeds.

A notice under s. 10 (3) of the Lands Acquisition Act 1955-1957 must declare the public purpose approved by the Governor-General and must, I think, do so by express statement or at least by necessary implication. This notice does neither. The words "The Australian Broadcasting Commission at Ripponlea Victoria" do not, as the Chief Justice has pointed out, state any purpose and, if the specification of a purpose could be speculatively implied from them, that purpose could be any one of a number, e.g. (1) for the purpose of lawful activities of the Commission; or, (2) for the purpose of the activities within the apparent authority of the Commission under the Broadcasting and Television Act 1942-1962; or, (3) for the purpose of the activities which the Commission bona fide considers to be within its statutory authority as aforesaid; or, (4) for the purpose of the accommodation of the Commission. If it be assumed that each one of the foregoing enumeration states a purpose, then each is a different purpose - although (4) may be comprehended elsewhere - and none is a necessary implication. Accordingly, this notice does not declare a purpose. Furthermore, although some one or more of the purposes enumerated might be regarded as a purpose "in respect of which Parliament has power to make laws" and so as a public purpose as required, others could not. Such a notice cannot, I think, be regarded as declaring a public purpose for which land is being acquired.

I agree that the notice in the Gazette did not state a "public purpose" for which the land was being acquired. The Act expressly requires that it do so. If it does not there is no acquisition. The requirement is not merely formal. Its substantial importance and its relationship to the constitutional power appear from the judgments of the Chief Justice and other members of the Court. Generally speaking, I think that an announcement of a purpose must be expressed in terms of purpose. There may be some cases in which a valid public purpose could sufficiently appear notwithstanding an ellipsis. But this is not such a case. I agree in the order the Chief Justice proposes.

I agree with the judgment of Kitto J. and have nothing to add.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties