WH Blakeley & Co Pty Ltd v Commonwealth; A-G

Order that the plaintiff pay the costs of the demurrer and of the reference.

The Court delivered the following written judgment: -

April 1 Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ.

These are two cases heard together in which an attack is made upon the validity of purported acquisitions by the Commonwealth of areas of land in Melbourne. The first case relates to an acquisition, notified in the Gazette of 10th June 1948, of a large area of land fronting Spring Street and Latrobe Street. The notification stated that the lands were acquired under the Lands Acquisition Act 1906-1936 "for the following public purpose, namely: Purposes of providing office accommodation for Departments of the Commonwealth and authorities of the Commonwealth, at Melbourne Victoria". The second case relates to the acquisition of a piece of land at the corner of King Street and Little Lonsdale Street notified by Gazette dated 14th October 1948. The notification stated that the land had been acquired by the Commonwealth under the Lands Acquisition Act 1906-1936 "for the following public purpose, namely: - Postal purposes at Melbourne, Victoria".

In each case the question comes before the Full Court by two concurrent proceedings, namely a demurrer to a statement of claim and a reference by Fullagar J. of certain stated questions. In the first case the statement of claim as drawn included an attack upon the validity of the whole of the Lands Acquisition Act based, so far as it appears, upon the ground that it did not afford just terms because on 1st January 1948, the date as at which, pursuant to s. 29 (1), the value of the land must be estimated, the National Security (Economic Organization) Regulations were in force and so operated as to limit the compensation for the land to an artificial value. In view, however, of the decision of this Court in The Commonwealth v. Arklay [1] , this ground was not pressed in argument.

The substantial questions in both cases are whether the declared purpose of the acquisition falls within purposes which are allowable under the Act and the Constitution and whether it is open to the landowners to attempt to invalidate the acquisition by proof that in fact the Governor-General in Council did not have in his immediate contemplation such an intended use of the land as fell within the Act or the Constitution.

The Lands Acquisition Act 1906-1936 is a general Act passed in pursuance of s. 51 (xxxi.) of the Constitution which enables the Parliament to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. Section 13 of the Act provides that the Commonwealth may acquire any land for public purposes (a) by agreement with the owner; or (b) by compulsory process. The means by which that acquisition may be carried out is provided by Div. 3, which begins with s. 15. Section 15 (1) provides that the Governor-General may direct that any land may be acquired by the Commonwealth from the owner by compulsory process. Sub-section (2) provides that the Governor-General may thereupon, by notification published in the Gazette , declare that the land has been acquired under this Act for the public purpose therein expressed. The words "public purpose" used in s. 13 and s. 15 are defined by s. 5 to mean any purpose in respect of which the Parliament has power to make laws. The definition goes on to exclude acquisitions for the purpose of the Seat of Government, but that is immaterial. It will be seen that the definition follows the words of s. 51 (xxxi.) of the Constitution. Provisions are contained in s. 15 (3) and s. 19 for the disallowance by a resolution of either House of Parliament of the acquisition. Section 16 (1) provides that, upon the publication of the notification in the Gazette the land described therein shall by force of the Act be vested in the Commonwealth and be freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates and easements to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by the Act shall be vested in the Commonwealth. Section 17 converts the estate and interest of every person entitled to the land into a claim for compensation. Section 20 enables a certified copy of a notification in the Gazette to be lodged with the Registrar-General or Registrar of Titles or other proper officers of the State or part of the Commonwealth in which the land is situated. That officer is then authorized to register the notification in the manner as nearly as may be in which dealings of land are registered and to give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer duly executed under the laws in force in that State or part of the Commonwealth.

In the case of the land which the Commonwealth has purported to acquire for the purposes of providing office accommodation for departments of the Commonwealth and authorities of the Commonwealth the first contention is that the notification is wider than the definition of "public purpose" allows, and accordingly wider than s. 51 (xxxi.) of the Constitution allows. It is said that the description "Departments of the Commonwealth and authorities of the Commonwealth" includes future departments and authorities of the Commonwealth and that it evidently includes departments and authorities created de facto by the Commonwealth and is not confined to departments and authorities created de jure, that is to say within the bounds of the constitutional limitations upon Commonwealth powers. It is contended that the word "authorities" is vague and is not sufficiently specific to enable the Court to see what nexus the authority has or will have with the Commonwealth and that there is nothing improbable in the Commonwealth contemplating the use of the building outside its powers.

This reasoning does not appear to us to have any sound basis. The words "authorities of the Commonwealth" naturally mean those bodies and officers who in fact and in law exist under the authority of the Commonwealth. In the federal constitutional system powers may be strained and they may be exceeded, but to suggest that the intended use of the land at the time of acquisition is for authorities or for departments which will have no legal warrant seems to us to be not in accordance with the true meaning of the document and to be without present justification. We cannot see why the statement of purposes in the notification is not sufficiently specific to satisfy the Act.

Widely as the other arguments ranged in support of the attack upon the purported acquisition, they appear to us necessarily to mean no more legally than that the Act could not constitutionally attempt and had not in truth attempted to render the assertion by the Governor-General of the purposes of the acquisition unexaminable. We gather that if the matter went to trial the substantial question of fact which the landowners would seek to litigate would be whether there existed a sufficiently concrete and immediate purpose of providing office accommodation as stated in the notice or whether it did not lie too much in the future and was not too indefinite and remote and possibly contingent.

The contention that it is open to the landowner to invalidate the purported acquisition by proof that a purpose or intent of putting the land to a use falling within the legislative powers of the Commonwealth did not exist in the Governor-General rests upon a construction given to s. 51 (xxxi.). It is said that the power to make laws with respect to the acquisition of property on just terms for any purpose in respect to which the Parliament has power to make laws is a power with respect to a composite conception in which the notion of the acquisition of property is one element, the provision of just terms another element, and the independent existence of an actual intention of using the land for a purpose in respect to which the Parliament has power to make laws a third element. The argument is that unless the condition expressed in the word "for" is satisfied in the case of any given acquisition it cannot be authorized by a law made under s. 51 (xxxi.) and that the condition expressed by the word "for" cannot be satisfied unless as a matter of fact there exists, independently of any formal declaration, an intention to use the property for a purpose of the required character. It will be seen that the word "for" is construed as requiring an actual existing intention in the acquiring authority, which under the Lands Acquisition Act is the Governor-General in Council. The words "any purpose in respect to which the Parliament has power to make laws" were equivalent, so it was said, to "any use in respect to which the Parliament has power to make laws". It may be doubted whether the substitution of the word "use" for the word "purpose" makes the meaning any clearer. It seems to be plain enough that the Constitution, in using the word "purpose", is speaking of the object for which the land is needed. The word itself does not refer to any power or powers defined in the various paragraphs of ss. 51 or 52 of the Constitution or elsewhere conferred; it is referring to the object for which the land is acquired. That object, however, must be one falling within the Commonwealth's power to make laws. It does not matter, however, from which of the paragraphs the power to make a law covering that object is derived. No doubt for practical purposes the word "use" would have the same meaning as the word "purpose" in par. (xxxi.) of s. 51, but of course "use" must be given a very wide meaning.

But it may be remarked that much meaning is ascribed by the contention to the simple word "for". The expression "acquisition of property for any purpose" of the defined kind seems rather to demand that the acquisition must be relevant to one or more of the subjects of Federal legislative power than to insist on the necessity as a condition of the power of a specific intent in the Executive Government or other acquiring authority.

In considering the contention upon which the landowners rely the first question to determine is what the Act purports to do with reference to the decisiveness or conclusiveness of the Governor-General's declaration. Section 13 begins by authorizing the Commonwealth to acquire any land for public purposes. If the Act stopped there it might give a foothold for the contention that it is necessary for the Commonwealth always to show that there existed an intention to use the land for a purpose falling within the definition of "public purposes". But Div. 3 makes it clear that the power is to be carried out by the machinery which it provides. That machinery consists in a notification in the Gazette which must declare the purpose. If, however, it corresponds with the description in s. 15 (2), which necessarily imports a valid public purpose, then under s. 16 (1) the Gazette notice operates ipso jure to vest the land in the Commonwealth. It also is capable of furnishing to the Registrar-General or Registrar of Titles an authority which under s. 20 enables him to issue a certificate which for many purposes may be conclusive under State law. It appears to be clear that if the Gazette contains a proper declaration of the purpose of acquisition it is to be self-operating as a conveyance and that it is to be decisive and is conclusively to vest the land in the Commonwealth. It is evident that the possibility of invalidating it collaterally by showing that an intention to use it for the purpose notified did not exist is quite foreign to the provision. The notification must be conclusive if the meaning of the Act is to be effective. To treat s. 16 (1) as always subject to the condition that, independently of the notification in the Gazette under s. 15 (2), there must be a fulfilment of the condition found by the argument in s. 13 would be to introduce into s. 16 (1) an unexpressed contingency calculated to defeat its purpose. It is impossible to suppose that the Act intends that the operation of the Gazette shall always be subject to an inquiry into the real existence in the Governor-General in Council of an intention to use the land for a declared purpose. The question, therefore, appears not to be one as to the meaning of the Act considered independently of s. 51 (xxxi.). That being the effect of the Act ascertained according to its terms the question upon which the argument for the landowners depends must be whether it is constitutionally possible for the legislature to pass a measure making the notification of the Governor-General of the purpose of the acquisition conclusive of the fact. This does not mean that the question is whether the Act can make the declaration of the Governor-General's purpose conclusive of the validity of the purpose so declared. That is a different matter from the question whether he can make his statement of his own purpose in acquiring the land conclusive of the actual existence of that purpose. There is no reason to doubt that the validity of the purpose declared may be examined and if the declared purpose is outside the Act or the Constitution the acquisition must fail.

The real question, therefore, is whether a law which precludes the land owner from contesting the truth of the Governor-General's declaration of the use or purpose declared for which the land is acquired is a law with respect to the compound conception stated in par. (xxxi.) of s. 51. In support of the attack upon the validity of the notification it is said that the legislative power conferred by this paragraph is only exerciseable with respect to an event which must have an independent existence, namely the existence in the mind of the acquiring authority, be it Parliament, be it the Executive Government, or be it some authority established by Parliament, of an intention to use land for one of the purposes designated in s. 51 (xxxi.). It is contended that just as no law may be made under s. 51 (xxxv.) in respect of conciliation and arbitration except a law the application of which depends upon the actual independent existence of an industrial dispute extending beyond the limits of one State, so the application of any general law with respect to the acquisition of property must be made dependent on the actual existence of an intention or desire to use property for a purpose within the description of s. 51 (xxxi.). All this must be extracted from the operation of the word "for" in the expression "for any purpose" &c.

The power is a legislative power of a sovereign government and its purpose is to invest the Parliament with a specific authority to make laws for the acquisition of property and to subject the authority to a condition relating to the justice of the terms provided. The power to acquire property compulsorily would probably have been regarded as forming an incident of almost every other power which is expressly granted by s. 51 in the absence of par. (xxxi.), and the grant of a specific power would have been in itself unnecessary. At all events that is the view which no doubt would now commend itself to constitutional lawyers. If it had depended on the incidental powers, there would have been no room for the argument under consideration. But the acquisition of property could not be left to the incidental powers because it was desired to limit the power of acquisition by imposing a condition that it must be exercised upon just terms. This desire could not be carried into effect except by expressing a separate positive limitation in the form of a constitutional check or bar as is done in the United States Constitution in the Fifth Amendment, or else by conferring a specific but restricted power. The latter course was chosen. Naturally the power of acquisition must be for objects which fall within the Federal province. But why should it not be incidental to a power to acquire property for such a purpose to make the declaration of the Executive Government of the purpose for which it requires the land conclusive of the fact that the Executive Government requires it for that purpose? Whether that is the purpose or is not the purpose is a matter depending entirely upon the mind and policy of the Executive. It is easy to understand that nothing the Executive Government is authorized to do can conclude the question whether the particular purpose for which it desires the land is in point of law one within the Federal province. But the purpose for which it requires the land is a thing depending entirely on the intention of the Executive Government itself. It is subjective and is naturally to be ascertained from the formal act of the Executive. Doubtless s. 51 (xxxi.) enables the legislature to authorize subordinate Federal bodies as well as the Governor-General in Council to acquire property. But acquisition by the Commonwealth itself is at the centre of the legislative power and that means the Executive Government. The good faith of the Governor-General cannot be questioned and that is an additional consideration in aid of an interpretation which makes the word "for" refer to or at best include the purpose declared. Why should a law not be one with respect to the compound conception when it provides for an acquisition characterized by the inclusion, in the formal act on which the law places the validity of the Commonwealth's title, of a statement by the Governor-General conclusively declaring the purpose for which he has acted? A legislative power of this description should not be construed to deprive the Federal Parliament of a power which has been freely exercised by all other legislatures on this very subject matter. Provisions are often found in State legislation relating to the acquisition of property by which a statement of purpose by the Governor in Council or other acquiring authority or the notification of acquisition is made decisive and concludes the whole matter.

It follows from what has been said that the landowners may not go behind the notification in the Gazette given in pursuance of s. 15 (2) and that the Lands Acquisition Act 1906-1936 is not invalid because it produces this consequence.

In the case of R.T. Co. Pty. Limited and others, that relating to the acquisition of land for postal purposes, the chief arguments advanced independently of those already dealt with depended upon the words "postal purposes". It was contended that this phrase has a wider meaning than "postal services" and includes uses of the land which could not be authorized in pursuance of s. 51 (v.), the power to make laws with respect to postal, telegraphic, telephonic or other like services. It is also contended that the words are insufficiently specific and that s. 15 (3) requires a notification stating with greater particularity the intended use for which the land is acquired. The words "postal purposes" are loose and wide and it would be much more satisfactory if more specific language had been used, but that they mean for the purposes of the postal services conducted by the Postmaster-General's Department it is difficult to doubt. In ordinary speech the expression would be so understood. During the argument attempts were made to suggest possible uses of the land which might be described as postal purposes which would fall outside the legislative power to make laws with respect to postal services. Some of the examples given of possible uses of the land would in truth not be outside that power or what is incidental to that power. Others seemed to be remote from reality and to be clearly outside the actual meaning as it would be ordinarily understood of the words "postal purposes". On the whole the words do appear to describe purposes within s. 51 (v.) of the Constitution. In support of the view that a more specific description of the intended use of the land must be given in the notification reliance was placed upon the provision contained in s. 19 for the disallowance by Parliament of an acquisition. But it does not appear why Parliament could not effectively exercise this power unless the notification was precise in the statement of purpose. The land must be identified. There could not be much difficulty in ascertaining whether the conditions mentioned in pars. (a), (b) and (c) of s. 19 existed. There does not appear to be any solid reason for saying that the notification should be held bad as insufficiently describing the purposes of the acquisition to satisfy the requirements of s. 15 (2).

The demurrers should be allowed in both cases. The questions referred to the Full Court by the order of Fullagar J. made on 5th November 1952 in Attorney-General of the Commonwealth v. R.T. Co. Pty. Limited and Others should be answered as follows: (1) No. (2) No. (3) Unnecessary to answer. The questions stated in the order of Fullagar J. made on 9th February 1953 in W. H. Blakeley & Co. v. The Commonwealth of Australia and Others should be answered as follows: (1) No. (2) No. (3) No.

[Editor's Note. - In the case of Attorney-General of the Commonwealth of Australia v. R. T. Co. Pty. Ltd. and Others an appeal was lodged to the Privy Council, and on 23rd November 1953 the Privy Council dismissed the appeal. There was no appeal to the Privy Council in the case of W. H. Blakeley & Co. Pty. Ltd. v. The Commonwealth of Australia and Another.]