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Commonwealth act
This Act has been repealed and is no longer in force. It is retained for historical reference.
This Act sets out how the Commonwealth can obtain land for public purposes, how that land (and related rights) is handled once acquired, and how people affected are to be paid or compensated.
What the Act mechanically does
Acquisition methods: The Commonwealth can buy land by agreement (s3) or compulsorily acquire it by the Governor-General issuing a Gazette notification (s6). On publication of that notification, legal title vests in the Commonwealth and prior trusts, estates, easements and charges are discharged to the extent of the acquisition (s7). Crown land of a State can be withdrawn from leases or reservations and vested in the Commonwealth (s8). The Act also allows acquisition of underground land without taking the surface in some circumstances (s10).
Conversion of title into a compensation claim: When land is acquired by Gazette notification, the private owner’s or State’s estate is treated as converted into a claim for compensation (s11). Claimants must serve a written notice of claim within 120 days of the notification (subject to judicial extension) (s13(3)). The Attorney-General reviews claims and either disputes them or causes a valuation (s14).
Determining and paying compensation: If parties cannot agree, the claimant may bring an action against the Commonwealth in the High Court (or a State Supreme Court until the High Court exists) (s15, s59). Actions are tried by a Justice without jury and valuers or the Justice must apply the valuation rules in the Act (s16, s19). Small claims (valuations not exceeding £1,000) may be referred to arbitration at the claimant’s option (s18). Compensation must be paid within one month after determination and bears interest at 3% per annum from the date of acquisition until payment or deposit (s20).
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Direct links to the current provisions in Property for Public Purposes Acquisition Act 1901.
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View on official registerSourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Handling of mortgagees, charges and leases: The Attorney-General may redeem mortgagees by paying principal, interest and stipulated additional interest or may deposit those sums with the Treasurer where the mortgagee refuses to convey (s30–33). If only part of mortgaged land is taken, the Act prescribes procedures for valuation and retention of mortgagee remedies against remaining land (s34–36). Rent-charges and other encumbrances are releasable subject to compensation or apportionment (s37–40). Where leased land is partly taken, rent is apportioned and lessees are entitled to compensation for tenancy losses (s41–44).
Temporary occupation, entry and works: The Minister (and authorised persons) may enter land to survey or test it (s49) and may temporarily occupy adjoining land within set limits for construction purposes, excluding certain ornamental or close domestic garden areas (s53). The Act requires compensation for damage and loss caused by such entry or occupation and sets procedures for interim rents and later compensation (s55–56). The Commonwealth remains subject to nuisance or other civil actions for injuries caused by these activities (s53(3)).
Administration, payments and record-keeping: The Attorney-General handles claim notices, valuation steps and many conveyancing functions on behalf of the Commonwealth (s50(2), s14). If owners refuse payment, fail to make title or cannot be found, the Attorney-General may deposit funds with the Treasurer; the Treasurer may invest such funds until claimants are identified (s23–24). Notifications of acquisition must be lodged with State registries (s61). The Governor-General may make regulations to carry the Act into effect (s63) and may set apart or revoke Commonwealth land by proclamation (s62).
Who pays, who decides, and what changes in behaviour
Who pays: The Commonwealth funds purchase money and compensation, meets conveyancing and claim-related costs in most cases, and pays interest on determined compensation (s20, s57, s58).
Who decides: The Governor-General initiates compulsory acquisition by notification (s6) and makes regulations (s63). The Minister effects service of notices and exercises entry and occupation powers (s13, s49, s53). The Attorney-General handles claims, payments, deposits, conveyancing and may deposit disputed sums with the Treasurer (s14, s20, s23, s31, s33). Courts (High Court or State Supreme Courts/Justices) determine disputed compensation and related matters (s15–16, s19, s25).
Behavioural effects and incentives: Property owners must assert claims within statutory timeframes and produce titles and supporting documents on request (s13(3), s20, s28). Mortgagees and other encumbrancers are incentivised to cooperate because the Attorney-General can pay sums into the Treasury and proceed with vesting if the mortgagee refuses to convey (s31–33). The Commonwealth is incentivised to value and resolve claims promptly because statutory interest accrues from acquisition until payment or deposit (s20). The Act provides cheaper, faster dispute routes for smaller claims via arbitration (≤ £1,000) (s18), and cost rules that allocate litigation costs based on outcomes (s17), which affect litigant incentives to commence or settle proceedings.
Trade-offs, compliance burdens, discretion and implementation points to note
Trade-offs and opportunity costs: Immediate vesting on Gazette notification (s7) allows the Commonwealth to proceed swiftly with public works but converts private proprietary rights into compensation claims subject to statutory processes (s11). That shifts the timing of property transfer ahead of final compensation settlement.
Compliance burdens on private parties: Claimants must serve notice within 120 days and provide abstracts of title and particulars of any damage (s13(3)). Parties asserting interest as lessees or under leases must produce leases or be treated as holding from year to year (s44). Mortgagees must either convey on tender or accept payment into the Treasury (s31–33). These procedural requirements impose document-production and timetable burdens.
Bureaucratic discretion and implementation risk: Several officials have discretion—Governor-General to acquire and to make regulations (s6, s63); Minister to enter, occupy and set aside land (s49, s53, s62); Attorney-General to decide whether a prima facie claim exists, to tender payments or deposit sums, and to execute conveyances or deed polls (s14, s23, s31–33). The Treasurer has discretion to invest deposited funds (s24). These discretionary powers concentrate decision points in the executive and create dependence on administrative practice for timely, consistent outcomes.
Effects on private enterprise and contracts: The Act interrupts existing property rights (including mortgages, leases and charges) and provides statutory procedures for buying out, apportioning or extinguishing those rights (Divisions 1–3 of Part IV). Compensation rules preserve many post-acquisition remedies for mortgagees (s36, s35). The Act also allows temporary use of neighbouring land for construction, which can reduce project costs for the Commonwealth but imposes obligations to pay interim rents and later compensation (s53–56).
Scope and stated purpose