AUKUS (Land Acquisition) Act 2024

The central concept is “project land”, defined in section 3 by reference to Schedule 1. Schedule 1 identifies four parcels by certificate of title volume and folio: Volume 6282 Folio 169 (Allotment 777 on DP 87145), Volume 6088 Folio 193 (Allotment 501 on DP 87145), Volume 6282 Folio 172 (Allotment 801 on DP 76925), and Volume 6231 Folio 22 (Allotment 601 on DP 121984). The notes indicate the first three are reserves and the fourth is a road allotment. The Act provides a map “for ease of reference only”, meaning the legal description binds. “Urban Renewal Authority” is defined under section 3 as the authority established under the Urban Renewal Act 1995. The URA is the recipient of the land and is also required to arrange and pay for a valuation. It is not the acquiring authority in the sense of exercising a power; rather, the Act vests the land directly. “Road” has the same meaning as in the Local Government Act 1999, which includes streets, footpaths, thoroughfares and public places. The concept of vesting “in fee simple” under section 6(1) is the highest form of freehold ownership, but the vesting is “free from all dedications, encumbrances, estates and interests”, meaning any leases, licences, mortgages, easements (except those listed), profits à prendre, or other proprietary rights that existed before the vesting are extinguished without compensation. This is a major departure from normal acquisition law where such interests would typically be compensated. The only surviving rights are the specific easements listed in section 6(2) for each part of the project land: for example, easements for sewerage and water supply to the South Australian Water Corporation, and electricity easements to Distribution Lessor Corporation and Electranet Pty Ltd. Market value is defined at section 9(5) using the standard willing buyer/willing seller formulation, but the valuation date is “immediately before the commencement of section 6”, meaning before the vesting occurs, so the land is valued in its existing state (as reserves and road) rather than as if already cleared for a submarine project. The concept of “compensation” under the Act is unusual: only one named entity is entitled (the City of Port Adelaide Enfield), and compensation may be in monetary or non-monetary form (s 9(2)). No provision is made for any other person whose rights are taken or extinguished, which may raise constitutional questions but is not addressed in the text. The regulations power in section 12 is very broad: it can modify or exclude any Act or law, make transitional provisions, and vest discretion in the Minister or any other person or body. This allows the executive to further expand the Act’s operation without parliamentary amendment.

The Act directly affects four main groups. First, the City of Port Adelaide Enfield loses ownership of the four parcels and receives compensation equal to market value. The council also loses any community land classification (under the Local Government Act 1999) which may have constrained the land’s use, and any roads vesting in the council are closed and revoked (s 8). The compensation may be monetary or non monetary, and the council must cooperate in agreeing on a valuer. Second, the Urban Renewal Authority acquires the land in fee simple with clear title, subject only to the preserved easements. The URA must cause a valuation and pay compensation (s 9(3) and impliedly s 9(4)). The URA is a state owned corporation, so the effect is a transfer between two state bodies, but with possible net fiscal effect depending on compensation. Third, holders of any other estates, interests, rights or encumbrances over the project land (such as tenants, licensees, easement holders other than those listed, or parties with unregistered interests) have those interests extinguished without any compensation under the Act. This could include businesses or individuals who had rights to the land, such as utility companies with unlisted easements, leaseholders of adjoining land with drainage rights, or members of the public with rights to use the reserves or road. The Act does not provide for any notice to such persons or any process to claim compensation. Fourth, utility companies whose easements are preserved (South Australian Water Corporation, Distribution Lessor Corporation, Transmission Lessor Corporation, Electranet Pty Ltd) retain their rights but do not gain any new rights. The Act does not impose any obligation on them. Fifth, the Registrar General must act on the Minister’s directions to amend the land register. This affects the administration of the Torrens system, as the normal procedures for recording dealings are bypassed. Indirectly, the Act affects the AUKUS submarine project itself (the ultimate beneficiary), local residents who lose open space and road access, taxpayers who fund the compensation and any future costs, and any potential private investors or developers who might have had an interest in the land. The Act does not affect Commonwealth Crown rights or interests, as the note to section 4(3) preserves them. No private enterprise directly benefits, and the extinguishment of rights could harm small businesses if they held interests. The concentration of power in the Minister to direct title changes and in the regulations to modify other laws also affects the general public by reducing procedural safeguards that normally apply to land acquisition.

The Act imposes specific duties on only a few parties. The Urban Renewal Authority must cause a valuation of the project land to be conducted by an independent licensed valuer jointly agreed with the City of Port Adelaide Enfield, or if no agreement within 30 days, appointed by the Valuer General (s 9(3) and (4)). The URA must bear the costs of the valuation. The URA also has the duty to pay compensation (implied from s 9(1), which gives the council a right to compensation). The amount is the market value determined by the valuation, but the Act does not specify a time frame for payment. The Registrar General must, at the direction of the Minister, take action such as issuing, altering or cancelling certificates of title, making entries in the register, and depositing plans (s 10(1)). The Registrar General may require the Minister to furnish maps, plans or documents (s 10(2)). The City of Port Adelaide Enfield has the right to compensation under section 9(1), which is enforceable. The council also has the right to be involved in selecting the valuer and can require the URA to agree on a valuer. If no agreement, the Valuer General appoints. There is no express right to challenge the valuation or the compensation amount in the Act. The council also has the right to receive non monetary compensation if agreed (s 9(2)). No other person has any right under the Act to compensation, to object, to be heard, or to challenge the vesting. Utility companies with preserved easements have the right to retain those easements, but the Act does not grant them any new rights or protections. The Minister has the power to direct the Registrar General, but also the duty to supply documents if requested. The Governor in Executive Council has the power to make regulations, which can modify or exclude any Act or law (s 12(2)(a)), and may vest discretion in the Minister or any other person (s 12(2)(e)). This creates a duty on the part of any person subject to such regulations to comply, but no specific duties are imposed by the Act itself beyond those. The Act does not create any duties of consultation, notification, or procedural fairness for anyone. The automatic vesting under section 6 means no further action is required to transfer title; the Registrar General must give effect to it. The absence of duties to other interest holders is a notable gap.

The Act contains no specific penalty provisions, offences, or civil enforcement mechanisms. The only enforcement mechanism is the force of law: the vesting under section 6 occurs “by force of this section” and the revocation of community land status and road closure also occur by force of the respective sections. If any person refuses to comply with a direction of the Minister under section 10, the Act does not create an offence. However, the Minister could potentially seek a court declaration or injunctive relief under general law to compel compliance, but that is not provided in the Act. The regulations made under section 12 could create offences or penalties for non compliance, but as of the Act’s text none are specified. The enforcement of the compensation obligation is also unstated: if the URA fails to pay compensation, the City of Port Adelaide Enfield would need to bring a civil action for debt or damages, relying on the statutory right in section 9(1). The Act does not provide for interest on late payment or a mechanism for resolving disputes about compensation beyond the valuation process. The valuation process itself is not an enforcement mechanism; the valuer acts as an expert and not an arbitrator (s 9(4)(b)), so the valuation is not binding in the sense of an arbitral award, but it is intended to determine market value. If the URA and council disagree on market value after the valuation, there is no stated dispute resolution process; presumably either party could challenge the valuation in court, but that is not specified. The absence of penalties and enforcement provisions suggests the Act relies on the parties (both state entities) to act in good faith and on the political consequences of noncompliance. For private parties whose interests are extinguished, there is no statutory right to challenge the extinguishment or to seek compensation. They would have to rely on any constitutional or common law rights, such as a potential claim for unjust enrichment or a constitutional challenge under implied freedom of interference with property rights (if such a right exists at state level, which is uncertain). The broad regulation making power could also be used to create enforcement mechanisms later, but the Act itself does not. This lack of enforcement teeth may be by design to avoid litigation, but it also leaves private rights vulnerable without recourse.

Section 4(1) provides that the Act has effect despite any other Act or law of the State, establishing its supremacy over all other South Australian legislation. Section 4(2) specifically applies the Act to land “notwithstanding the provisions of the Real Property Act 1886”, which ordinarily governs the recording and effect of interests under the Torrens system. This means the automatic vesting under section 6 takes effect even if not recorded in the land register, though the Minister may direct the Registrar General to update the register (s 10). Section 4(3) expressly excludes the Land Acquisition Act 1969 and the Local Government Act 1999 from applying to the acquisition or vesting of project land. The Land Acquisition Act 1969 would otherwise provide for procedural steps (notice, hearing, compensation for all interests, etc.) and is the standard regime for compulsory acquisition in South Australia. By excluding it, the Act bypasses those safeguards. The Local Government Act 1999 would govern classification of land as community land (which restricts disposal and requires public consultation) and road closure (which normally requires council resolution and public process). Sections 7 and 8 override those provisions. Section 5 exempts all actions under the Act from any state law requirement for assessment, consent, approval, authorisation, certificate, licence, permit, permission, consultation, notification or other procedural step, except as prescribed by regulations. This means environmental planning approvals (under the Planning, Development and Infrastructure Act 2016), native vegetation clearance approvals, heritage approvals, water license transfers, and any other regulatory permits are not required. The Act also overrides any other state law that could affect the use of the land for the AUKUS project. Section 11 exempts stamp duty under the Stamp Duties Act 1923. The note to section 4(3) expressly preserves Commonwealth law and Crown interests, so the Act does not affect any Commonwealth rights, title or interests, such as any defence or national security interests in the land, or any Commonwealth legislation such as the Environment Protection and Biodiversity Conservation Act 1999 (though that is federal, not state). The broad regulation making power in section 12(2)(a) allows the Governor to modify or exclude any Act or law in connection with the operation of this Act, providing a mechanism to further carve out additional laws by regulation rather than amendment. This could affect any future interaction with, for example, the Work Health and Safety Act 2012 or the Equal Opportunity Act 1984, if the regulations deem them not to apply. The interaction with the Urban Renewal Act 1995 is not specified, but the URA is established under that Act and its functions may be exercised in relation to this land, though the AUKUS Act does not modify that Act itself. The overall effect is that the Act creates a bespoke legal regime that operates independently of and in precedence over the normal statutory framework for land use, acquisition and planning.

The Act is very recent, having been assented to on 16 May 2024 and commenced on 30 May 2024 (Gazette 30.5.2024 p1285). It is numbered Act No. 13 of 2024. As of this writing, there have been no amendments to the Act. The legislative history note indicates that the Act has not been amended, substituted or repealed. The short title is the AUKUS (Land Acquisition) Act 2024. The commencement was fixed by proclamation as required by section 2. No other commencement dates apply because the Act commenced as a whole. The regulations power under section 12 has not yet been exercised, or if it has, no regulations are part of the source text provided. The Act is a standalone statute with no amending provisions; it does not amend any other Act (although it overrides them). Future amendments could be made by any subsequent Act of the South Australian Parliament. The Act contains no transitional provisions other than the general regulation making power in section 12(2)(d) which allows regulations to make provisions of a saving or transitional nature consequent on the enactment of this Act or on the commencement of specified provisions. This power could be used to address issues that arise after vesting, such as dealing with unregistered interests or disputes. The Act also does not contain a sunset clause or review provision, so it appears to have ongoing effect until repealed. The lack of amendment history means the original text is the current text. For practitioners, this is important: there is no judicial interpretation yet, and no subsequent legislative tinkering to resolve ambiguities. The Act must be read strictly as enacted.

As the Act only commenced in May 2024, there has been no reported litigation under it. However, several potential legal challenges can be anticipated. First, the extinguishment of private interests without compensation could be challenged under the common law principle that statutory acquisition of property should be compensated (though no such general right exists in South Australia unless the statute provides it). The High Court’s implied constitutional limitation on acquisitions of property (the “acquisition of property on unjust terms” in section 51(xxxi) of the Commonwealth Constitution applies only to Commonwealth acquisitions, not state acquisitions. State constitutions generally do not contain an equivalent guarantee, but the South Australian Parliament is not bound by any express limitation. Nevertheless, a challenge could be brought on the ground that the Act is not a bona fide exercise of state power, or that it impairs the exercise of federal jurisdiction or is inconsistent with a Commonwealth law. The note to section 4(3) preserving Commonwealth interests may be relevant if the land is used for AUKUS (a Commonwealth defence project), but the Act does not authorise the Minister to affect Commonwealth rights. Second, if any person other than the council had a registered or unregistered interest (such as a lease, licence, or profit à prendre) and that interest was extinguished without compensation, that person might bring a claim for damages for acquisition of property without compensation, relying on the common law principle from cases like Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, which held that NSW could acquire property without compensation if the legislation was clear. The High Court in that case rejected a challenge to the Coal Acquisition Act 1981 (NSW) which extinguished private coal rights without compensation, so the precedent suggests such a challenge is unlikely to succeed. Third, a procedural fairness challenge might be mounted: the Act provides no notice or hearing for holders of interests. However, the Act expressly excludes the operation of the Land Acquisition Act 1969 which would normally provide those rights, and the High Court has held that statutes can exclude natural justice by clear words. Section 5 and 4(1) are very clear. Fourth, environmental groups could challenge the lack of environmental assessment under state laws, but section 5 expressly exempts such assessments. No constitutional environmental right exists. Finally, the City of Port Adelaide Enfield might challenge the valuation or the amount of compensation if it disputes the market value. The Act provides no review or appeal mechanism for the valuation, so such a dispute would have to be litigated as a contractual or statutory interpretation issue, potentially on the basis that the valuer did not act as an expert properly or that the valuation was not conducted according to the definition. The Act does not state that the valuation is binding, but only that it is “for the purpose of determining the market value”. The council could argue that the URA must pay the market value as independently determined, and if the valuation is flawed, the court could set it aside. The litigation history is currently nil, but the Act’s structure invites future challenges.

Several features of the Act present traps or surprises for the unwary. The biggest is that only the City of Port Adelaide Enfield receives compensation. Anyone else with a legal or equitable interest in the project land (such as a tenant, a licensee, a person with an unregistered easement, a mortgagee, or a person with a right of way not listed in section 6(2)) loses that interest without any payment or recourse under the Act. There is no requirement for the Minister to notify such persons, no process to make a claim, and no right to challenge the extinguishment. This is a sharp departure from the usual principles of compulsory acquisition under the Land Acquisition Act 1969, which normally requires compensation to be paid to all persons with compensable interests. Practitioners should be aware that if any private interest existed (such as a lease to a small business over a reserve, or a profit à prendre for grazing or quarrying), it is now extinguished. Second, the market valuation date is “immediately before the commencement of section 6” (s 9(5)). But the Act itself came into operation on 30 May 2024, and section 6 vested the land on that same day. So the valuation is effectively as at the date of the Act’s commencement. If the AUKUS project announcement caused land values to increase, that increase is excluded from the market valuation because it is assessed before the vesting (though the effect of the project on values might still be considered if it was known before vesting). Third, the Act does not require the URA to pay compensation before taking title. The vesting occurs by force of the Act immediately, and the compensation obligation arises but without a deadline. This could leave the council waiting for payment, and there is no interest accrual provision. Fourth, the broad regulation making power in section 12 allows the Governor to modify or exclude any Act or law in connection with the operation of this Act. This means that by regulation, further rights could be extinguished, or additional exemptions from laws could be created, without further parliamentary scrutiny. This could affect future uses of the land. Fifth, the Act contains no provision for the return of the land if the AUKUS project does not proceed or if the land is no longer needed. The land is vested in the URA in fee simple, and the URA could potentially sell or dispose of it (subject to any restrictions in its enabling Act) even if the project falls through. The council has no right of reverter. Sixth, the map in Schedule 1 is stated to be “for ease of reference only”, meaning it is not legally definitive. The legal description by certificate of title is binding. Any discrepancy between the map and the title descriptions is resolved in favour of the title. Seventh, the definition of “road” for closure purposes is from the Local Government Act 1999, which includes a wide range of public thoroughfares. However, section 8(1) says only those roads “comprising part of the project land” are closed. If a road allotment is only part of a longer road, the closure might sever a through road, but no provision addresses that. Eighth, the easements preserved in section 6(2) are only those that existed before the commencement of section 6. If any easement was created after that date (impossible because vesting is immediate), it would not be preserved. Also, the easements are described by plan references and parties, but the descriptions are somewhat inconsistent (e.g., “Distribution Lessor Corporation” vs “Distribution Lesser Corporation” - a typo in the Act). This could cause confusion in registration. Ninth, the Act does not affect any Commonwealth rights, but if the land is used for AUKUS (a trilateral defence project), there may be federal laws that also regulate the land. The Act does not authorise the Minister to contravene Commonwealth law. Finally, the Act is not retrospective: it only applies from commencement. But interests created after commencement cannot exist because the land is already vested. These gotchas create a high risk for anyone who had an interest in the land and did not assert it before 30 May 2024.

Compliance with the AUKUS (Land Acquisition) Act 2024 involves different steps for different parties. For the Urban Renewal Authority (URA), the primary compliance obligation is to secure a market valuation of the project land as soon as possible after commencement. The URA must cause a valuation to be undertaken by an independent licensed valuer jointly agreed with the City of Port Adelaide Enfield (s 9(3) and (4)(a)). If no agreement within 30 days, the Valuer General appoints. The URA should contact the council promptly to agree on a valuer and then instruct that valuer to produce a valuation in accordance with the market value definition in s 9(5) (willing buyer/willing seller, immediately before commencement of s 6). The URA must pay the valuer’s costs. After receiving the valuation, the URA must pay compensation to the council in an amount not less than the market value (s 9(1) says “equal to the market value”). The compensation may be monetary or include non-monetary elements (s 9(2)), so the URA may negotiate a package. The URA should also document the payment and obtain a release from the council. The URA should also arrange for the Minister to direct the Registrar General under s 10 to update the certificates of title to reflect the vesting and remove any former encumbrances, while noting the preserved easements. The URA should work with the Department for Infrastructure and Transport or the Crown Solicitor’s office to prepare the necessary forms and plans. For the Registrar General, compliance means acting on the Minister’s direction without requiring normal application forms or fees. The Registrar General should request any necessary maps or documents from the Minister under s 10(2). For the City of Port Adelaide Enfield, compliance involves cooperating with the URA to jointly agree on a valuer, providing access for the valuation, and negotiating or accepting compensation. The council should also remove any records showing community land classification and recognise that roads are closed. The council should ensure it receives compensation and may wish to seek a binding valuation if the URA offers less than market value. For utility companies with preserved easements, compliance is passive: they need to ensure their easements are correctly noted on the new title, but the Act does not require them to do anything. They should monitor the registration steps to ensure the easements are preserved and not inadvertently omitted. For any other person who may have held an interest in the project land (such as a previous lessee or licensee), compliance is more reactive: they should immediately seek legal advice to assess whether their interest has been extinguished and whether any claim for compensation exists under common law or other statutes. The Act does not provide them a role, but they may need to act quickly to preserve any rights. For the Minister, compliance with s 10 means issuing a direction to the Registrar General in a timely manner and providing any required documents. For any person dealing with the land (such as a prospective purchaser or developer), compliance means recognising that the Act has already vested the land in the URA and that the normal title search may not reflect the vesting until the Registrar General acts. Due diligence should include reading the Act and checking the Gazette date. For the broader community, compliance requires nothing, but affected residents should be aware that the reserves and road are no longer public land. The regulations under s 12 may impose additional compliance obligations, so all parties should monitor the South Australian Gazette for any regulations made under this Act.