Lands Acquisition Act 1989

The Act governs the conduct of every Commonwealth Minister, department and prescribed Commonwealth authority that wants to take land, and the rights of every owner, mortgagee, occupier, easement holder and former owner whose interests are touched. It applies in States and Territories, with section 5 disapplying competing Territory laws on acquisition where this Act applies, while preserving carve-outs under the Christmas Island Act 1958 (s 21A), the Cocos (Keeling) Islands Act 1955 (s 18B) and the Norfolk Island Act 1979 (s 62). Public parks dedicated under State or Territory law receive special protection (sections 42 and 46): no compulsory acquisition without State or Territory consent, and any compulsory acquisition can be disallowed by either House of Parliament within seven sitting days.

For acquiring authorities, the central obligation is procedural: do not acquire outside this Act unless one of the section 21 carve-outs applies (regulations, an overriding Commonwealth law that expressly says so, taking a security interest, an acquisition effected by a Commonwealth law, or a non-compulsory non-agreement acquisition). Compulsory acquisition almost always requires a pre-acquisition declaration under section 22, which must identify the authority, the land, the interest and the public purpose, and must include a "suitability statement" with reasons or, where the interest is a restriction on use, a statement of why the restriction is appropriate. Copies must be given to every person affected with a sketch and a rights summary (subsection 22(7)) and the declaration must be Gazetted (section 23).

Owners and mortgagees subject to an authorising document carry their own obligations. Section 39 requires an owner to disclose the existence of an authorising document before agreeing with anyone else about the relevant interest; failure exposes the owner to rescission and damages. Section 66 lets the Minister require particulars of mortgages from the owner; failure to respond within 30 days lets the Minister agree directly with anyone claiming to be a mortgagee, and the owner is debarred from disputing the agreed amounts.

Part III gives "authorised persons" (defined in section 7 as persons authorised in writing by the Minister) the power to enter and examine land for assessing suitability for a public purpose (section 10) and to occupy "neighbouring land" within 500 metres of authority land for works connected with a public purpose (section 11). Section 12 allows construction, taking of materials, road-making and erection of temporary buildings, but excludes quarry working and requires reasonable notice before interfering with roads, water, sewerage, gas, electricity or telecommunications lines (referencing the Telecommunications Act 1997).

The Minister's discretions are extensive. Under section 22 the Minister may make a pre-acquisition declaration. Under subsection 22(6), where a section 22(5) policy statement has been included, the Minister may certify the declaration as essential for the policy and therefore "unreviewable". Under section 24 the Minister may issue an "urgency or security" certificate, dispensing with the pre-acquisition declaration entirely if satisfied of urgent necessity contrary to the public interest in delay, or that a declaration would prejudice security, defence or international relations. Under section 41 the Minister makes the compulsory acquisition declaration that vests the interest in the acquiring authority and frees it from all other interests and encumbrances on Gazettal. Under section 47 the Minister may require urgent vacation by an occupier with reasons. Under section 119 the Minister authorises disposals of acquired land in writing.

Section 139 lists the powers the Minister cannot delegate, including authorising a person to act under sections 10, 11 or 14, including a section 22(6) statement, giving a section 24 certificate, dealing with a Tribunal recommendation under section 33, making a section 41 declaration, giving a section 47(2) notice, rejecting compensation claims under sections 70 or 98, and giving notice under paragraph 132(2)(a). Other powers can be delegated to APS officers or persons with executive authority over a Commonwealth authority.

The Act itself contains no general criminal offences; section 140 lets regulations prescribe penalties not exceeding 50 penalty units for offences against the regulations. Enforcement runs primarily through process: orders by a court of summary jurisdiction authorising the Australian Federal Police to overcome obstruction during temporary entry (section 14), orders to obtain possession from unauthorised occupiers (section 132), and Federal Court injunctions to restrain use of land inconsistent with a restriction acquired under the Act (section 133). The Attorney-General executes documents for the Commonwealth (section 136), and section 138 lets State and Territory Registrars-General register instruments without further proof of signature.

The pre-acquisition pathway is heavily time-bound. After a section 22 declaration is made, an affected person has 28 days to apply for reconsideration under section 26. The Minister has 28 days to decide on reconsideration; silence equals deemed confirmation (section 27(4)). For reviewable declarations, the Tribunal cannot extend the time to apply once it has expired (section 28(3)). On review the Tribunal recommends to the Minister, who has 90 days to reject a recommendation (section 33(2)) and must table reasons for any rejection within three sitting days. A pre-acquisition declaration becomes "absolute" 28 days after the last review opportunity (section 43); only then can the Minister make a section 41 compulsory acquisition declaration.

After section 41 Gazettal, sections 48 to 51 require notice of acquisition with a compensation claim form within 14 days, and registration with the Registrar-General within 28 days. Compensation claims are made under section 67; the Minister has 42 days to accept and offer or reject (section 70). Tribunal review of rejection must be made within 90 days (section 71(3)). Final offers come from the Minister under section 76; deemed final offers arise after two months. Tribunal determination of compensation (section 81) and Federal Court determination (section 82) are alternative paths, and section 83 forces an election. Advance payments must be at least 90 per cent of the offered amount (sections 85 and 110). Interest runs from the day of acquisition (or from claim/offer for Part VIII purposes) and unpaid interest is rolled into principal at three-month intervals (sections 91, 92 and 115).

For dwellings, section 61 adds a fixed amount of $10,000, indexed annually under section 126 by the All Groups CPI for the eight capital cities, on top of market value or reasonable replacement cost. Section 121 carries a "first refusal" timeline: the former owner gets 28 days to express interest, then two months to complete, with an additional Tribunal review path for the market value the Minister specifies.

The Act is densely connected to other Commonwealth law. Section 31(1)(g) cross-refers to subsections 269(2) and 270(4) of the Administrative Review Tribunal Act 2024 for materials before the Tribunal. Section 89A continues the Lands Acquisition Account as a special account under the Public Governance, Performance and Accountability Act 2013. Section 124(6) preserves rights under section 35(4) and authorities under subsection 41(1) of the Atomic Energy Act 1953. Section 130 confers exclusive Federal Court jurisdiction over key sections, except for the High Court's jurisdiction under section 75 of the Constitution. Section 21(3) and section 117(2) work around subsection 12(1) of the Legislation Act 2003 for regulation commencement. Section 124(8) keeps section 51 and subsections 53(2) and 53(2A) of the Lands Acquisition Act 1955 alive where no current regulations exist.

Procedural fairness obligations not expressly stated in the Act are imported through the general law, as State of South Australia v Honourable Peter Slipper MP demonstrates.

The "unreviewable" declaration trap is the most consequential. A statement under subsection 22(6) ousts Tribunal review but cannot oust constitutional review and does not protect against judicial review where the underlying section 22 conditions are not met. The Tribunal also cannot inquire into the merits of any policy named in a section 22(5) statement (subsection 31(3)). Section 24 urgency or security certificates dispense with the entire pre-acquisition pathway, but they have been quashed where a court is not satisfied that the statutory criteria are made out. Section 5 only disapplies Territory laws where this Act requires the authority to acquire under it; otherwise, Territory laws can co-exist.

Section 121 looks like an obligation to offer back to the former owner but is drafted as a "general principle" the Minister has regard to, with subsection 121(9) expressly providing that disposal validity is unaffected by non-compliance. Section 122 lets the Governor-General dedicate or revoke dedication of Commonwealth land by Proclamation, including land already vested in trustees, who then must surrender title documents on demand. Section 124(9) explicitly excludes Aboriginal Land Trust land from mining regulation under the Act.

For mortgagees, section 53 forces an election and creates a deemed waiver after 30 days of inaction. Section 68 makes a compensation claim by a mortgagee a partial discharge of the mortgagor's liability. Section 64 limits "money due" to amounts not statute-barred or otherwise enforceable. Section 92 entitles the mortgagee to costs of re-investment and a reasonable allowance for loss of interest until principal would have been repayable.

For occupiers, section 47 gives a six-month right to remain unless the Minister certifies urgent need for possession. Section 132 lets the Minister obtain a court order to remove unauthorised occupiers with AFP assistance. For landowners contemplating sale during a declaration, section 39 imposes the disclosure trap.

A Commonwealth defence project requires expansion of a training area over pastoral lease land. The relevant Minister makes a section 22 pre-acquisition declaration identifying the lessor, the lease interest and "defence training" as the public purpose. The lessee applies for reconsideration under section 26 within 28 days. The Minister confirms; the lessee applies to the Tribunal under section 28; the Tribunal weighs the considerations in section 31. If the Tribunal recommends revocation, the Minister must accept or reject within 90 days under section 33 and table reasons in Parliament if rejecting.

A national radioactive waste repository project moves under section 24 because the Minister certifies urgency. The Minister makes a section 41 declaration and gazettes it; on Gazettal, all interests vest in the Commonwealth freed of all other interests. State or native title parties seek judicial review of the section 24 certificate under the ADJR Act. If the court finds the urgency criterion was not satisfied, certiorari can quash both the section 24 certificate and the section 41 declaration.

A homeowner whose principal residence is acquired by compulsory process is entitled under section 61 to the indexed $10,000 amount plus the greater of market value or reasonable replacement cost, plus interest under section 91. If the Minister makes an offer under section 70, the owner can accept under section 79, take it to arbitration under section 80, apply to the Tribunal under section 81 (90 days from final offer), or sue in the Federal Court under section 82, but only one path under section 83.