Land Acquisition and Public Works Act 1902

The Act casts a wide net. Primary addressees are:

• The Minister for Works (and, for railways, the Minister administering the Government Railways Act 1904) who holds the statutory powers and is constituted as a body corporate.
• The Western Australian Building Management Authority, whose membership is the Minister but which operates with its own seal, borrowing capacity and Account.
• The Public Transport Authority, which exercises the railway-specific powers in Part VI and is the “acquiring authority” for compensation purposes in many instances.
• Local authorities (local governments and any statutory body empowered to construct public works). They may receive control of bridges or ferries (s.91), make local laws in certain circumstances, and are liable to contribute to maintenance costs or have subsidies deducted if they default (ss.91(7), 118).
• Landowners and occupiers. Any person whose land is entered for survey (s.82), testing (s.83A), or public work construction, or whose road access is severed (s.102), is entitled to compensation under Part 10 of the Land Administration Act 1997 as modified. Owners must also tolerate removal of dangerous trees adjacent to railways (s.108).
• Contractors, engineers, surveyors and officers appointed under s.7 or engaged by the Building Management Authority. They receive statutory authority to enter land and are protected by offence provisions.
• The Treasurer, who approves borrowings, gives guarantees, and controls investment of the Building Management Authority Account.
• The general public, who gain rights of way over combined road-rail bridges only to the extent defined by by-laws (s.107) and who must obey local laws made under s.87.
• Aboriginal communities, whose essential service infrastructure is expressly brought within Schedule 1 item 28.

Because the definition of “public work” now includes health care facilities, educational institutions, waste management sites and environmental revegetation, the Act directly or indirectly affects patients, students, residents of aged-care facilities, waste producers and conservation groups.

Duties
The Minister must exercise powers with procedural fairness. Forty-eight hours’ notice must be given “where practicable” before entry for survey or testing (ss.82(2), 83A(3)). Authorised persons must “do as little damage as is practicable” (s.83C(1)). Compensation claims must be negotiated where possible (s.83C(4)). The Building Management Authority must apply its Account only for Part IA purposes (s.9E(6)) and must repay the Consolidated Account for any guarantee liability (s.9E(4)(b)). Local authorities given control of bridges must maintain them or face Ministerial intervention and cost recovery (s.91(7)). The Public Transport Authority must construct crossings where a railway cuts off road access to private land (s.102) and must maintain level crossings until the railway opens (s.103(1)).

Rights
Landowners have a statutory right to compensation for damage caused by testing work if claimed within 30 days (or 12 months if notice was not given) (s.83C(2)–(3)). Owners may consent in writing to road closure even if alternative access is not provided (s.92). The Minister and Public Transport Authority enjoy Crown immunities except where expressly removed (s.9C(7) for the Building Management Authority). The Governor may declare additional classes of public work by order (s.2A), giving the Executive significant flexibility. The Building Management Authority may borrow with Treasurer approval and receive parliamentary appropriations (s.9C(2), s.9E(2)(a)).

Delegation is a key structural right. The Minister may delegate to named Ministers, the Treasurer, or senior public servants (s.5A); those delegates may subdelegate further subject to a copy-back obligation (s.5B(2)). The Building Management Authority may delegate to officers whose services it uses under s.9D (s.9F).

The Act creates a modest but targeted suite of summary offences:

• Destruction or removal of survey marks: first offence $40, subsequent $200 (s.83).
• Wilful interference with testing work: $40 / $200 (s.83B(1)).
• Obstruction of authorised persons: $100 (s.83B(2)).
• Trespass on railway under construction: $4; riding or driving animals/vehicles without authority: $10 (s.109(1)–(2)).
• General obstruction or damage to works: $100 plus cost of repair or reinstatement, recoverable as a debt (s.120).

Enforcement is by summary conviction. Costs of repairing damage or clearing obstructions are recoverable separately by the Minister or Public Transport Authority in a court of competent jurisdiction (s.120). Moneys owed by local authorities may be deducted from subsidies (s.118). The Minister may impound trespassing animals on construction railways (s.111) and may close combined bridges during repairs or if dangerous (s.107). Breaches of local laws made under s.87 attract penalties up to $40 (s.87(2)) and do not preclude civil actions for damage (s.90).

The Act is deliberately skeletal and works by incorporation. Division 4 of Part 9 and Part 10 of the Land Administration Act 1997 govern entry and compensation for public works (s.10). The Financial Management Act 2006 and Auditor General Act 2006 apply to the Building Management Authority (s.9G). Railway construction remains subject to the Government Railways Act 1904 for ministerial responsibility and to any special Act (s.96). Environmental constraints appear repeatedly: waste operations at Mt Walton are “subject to” the Waste Avoidance and Resource Recovery Act 2007 and the Environmental Protection Act 1986 (s.112(2)); the Building Management Authority enjoys no immunity from written laws (s.9C(7)).

The Public Transport Authority Act 2003 supplies the corporate vehicle for railway powers (s.11, s.99). Definitions of “hospital” and “public reserve” pick up the Health Services Act 2016 and Land Administration Act 1997 respectively (s.2). Local laws made under the Act interact with the Local Government Act 1995. The Interpretation Act 1984 governs the status of Governor’s orders under s.2A as subsidiary legislation.

Savings provisions in ss.122 and 123 ensure continuity with repealed public-works statutes, while transitional clauses in amending Acts (e.g. the 1994 and 2023 amendments) preserve existing references and validate earlier actions.

The most significant recent change is the Land and Public Works Legislation Amendment Act 2023 (No. 4 of 2023), which took effect on 10 August 2023. It inserted s.2A (Governor’s power to declare a specific work or class of work to be a public work by order), repealed and replaced the definition of “public work” in s.2, and substituted an entirely new Schedule 1 containing 31 classes. The explanatory memorandum made clear that the purpose was to remove doubt about whether modern facilities (hospitals, universities, waste transfer stations, biosecurity fences, revegetation projects) fall inside the Act, thereby avoiding the need for repeated specific authorising legislation.

Minor consequential amendments were made to ss.5, 5A, 5B, 7, 11, 82, 83, 83A–83C, 90, 96, 109, 120 and various definitions to update cross-references and remove spent provisions. These changes reflect a legislative policy of modernisation and consolidation: rather than maintain a patchwork of specific Acts, the Parliament has preferred to locate all public-works powers in one statute with a flexible, declaratory trigger.

The source text itself contains no reported cases. However, the structure of the Act has historically generated disputes in three areas. First, the interaction between the broad entry powers in ss.82 and 83A and native title rights led to the 1997 amendments that aligned compensation with the Land Administration Act 1997. Second, the compulsory acquisition regime (now largely outsourced) was controversial in the 1970s and 1980s when large-scale road and railway projects displaced urban communities; the deletion of former Part III in 1997 was a direct response to calls for clearer, fairer processes. Third, the Mt Walton waste facility (s.112) has been the subject of community concern about hazardous waste transport; the statutory limitation that operations remain subject to the Environmental Protection Act 1986 was inserted to quell fears of an environmental exemption.

No judicial decisions are recorded in the compilation table or notes, consistent with the Act’s largely administrative character. Disputes tend to be resolved through negotiation or compensation claims under the incorporated Land Administration Act 1997 Part 10 rather than constitutional or ultra vires challenges.

Most practitioners assume that because the Act is titled “Public Works” it only authorises traditional infrastructure. The 2023 Schedule 1 items 6 (health care facilities), 9 (educational facilities), 12 (public housing), 17 (revegetation for conservation) and 28 (Aboriginal community essential services) demonstrate that the Act now reaches deep into service delivery and environmental management. A Governor’s order under s.2A can bring an entirely new class of facility within the Act without further parliamentary debate.

Another trap is the interaction between s.96 (special Act required for railways) and s.11 (Governor may authorise the Public Transport Authority by Gazette order). The latter is expressly “subject to section 96”, yet the 2023 amendments removed the old requirement for a map to be tabled before second reading in every case. Care must be taken to check whether the particular railway falls inside an existing special Act or requires a fresh one.

Delegation chains are labyrinthine. A power delegated by the Minister under s.5A(db) to the DBNGP Land Access Minister may then be subdelegated under s.5B(cb) to a departmental officer. Failure to transmit a copy of the subdelegation instrument to the original Minister as required by s.5B(2) does not invalidate the subdelegation but creates an administrative compliance risk and potential audit findings.

Compensation under s.83C for testing-work damage must be claimed within 30 days of the occurrence (or 12 months if notice was not given). The 12-month outer limit is easily missed by landowners unfamiliar with the Act. Moreover, an agreement to accept negotiated compensation bars any further statutory claim (s.83C(4)).

Finally, s.113A operates as a statutory vesting provision: anything placed on land by the Minister or Public Transport Authority is deemed to belong to them unless they certify otherwise. This can surprise contractors who assume that materials delivered to site remain their property until paid for.

Compliance begins with characterisation. Any proposed project must be checked against Schedule 1 or, if outside it, made the subject of a Governor’s order under s.2A. Once characterised as a public work, the following checklist applies:

1. Land entry and survey — Give 48 hours’ notice where practicable (s.82(2)). Produce authority on demand. Minimise damage. Keep records of notice and activities.

2. Compensation — For testing-work damage, negotiate first (s.83C(4)). If negotiation fails, apply Part 10 of the Land Administration Act 1997 as modified. Ensure claims are lodged inside the statutory windows.

3. Railways — Confirm existence of a special Act or proceed under s.11 Gazette order. Deposit the required map in the Supreme Court Central Office (s.96(3)). Exercise powers in s.99 only within authorised limits of deviation.

4. Building Management Authority projects — Route all building-related acquisitions, borrowings and disposals through the Authority. Obtain Treasurer approval for borrowing (s.9C(2)). Credit all rents, sale proceeds and interest to the dedicated Account and apply moneys only for Part IA purposes (s.9E).

5. Local laws and road management — If declaring a Government road or making local laws under s.87, gazette the order and display bridge/jetty laws conspicuously (s.88(b)). Keep printed copies of traffic laws available for sale at ≤10 cents (s.88(c)).

6. Delegation hygiene — When delegating under ss.5A or 5B, use a written instrument that identifies the power, the delegate, and any conditions. Transmit copies of subdelegations to the original Minister immediately. Maintain a central register of all delegations and subdelegations.

7. Offence prevention — Erect and maintain fencing where the Governor has declared it a Crown responsibility (s.110). Remove dangerous trees only after forming the statutory opinion (s.108). Impound trespassing animals in accordance with the Cattle Trespass, Fencing, and Impounding Act 1882 as applied by s.111.

8. Reporting and audit — The Building Management Authority must comply in full with the Financial Management Act 2006 and Auditor General Act 2006 (s.9G). Annual estimates must include a (possibly nominal) sum for the Authority (s.9E(7)).

9. Interaction with environmental and native title legislation — Never assume the Act overrides the Environmental Protection Act 1986, Waste Avoidance and Resource Recovery Act 2007 or native title processes. Conduct parallel assessments and obtain all necessary environmental approvals before physical works commence.

10. Record keeping — Retain evidence of notices, authorities, compensation negotiations, delegation instruments and Gazette orders. These will be the first documents demanded in any Ombudsman, audit or judicial review proceeding.

Practitioners should maintain an annotated copy of the Act that cross-references the current versions of all incorporated statutes. Because the 2023 amendments fundamentally rewrote the definitional heart of the legislation, any pre-2023 legal advice or due-diligence checklists must be revisited. Compliance is not merely procedural; it is the price of accessing the Act’s extraordinarily broad and flexible powers.