Tunnock v Victoria

[1951] HCA 55

HIGH COURT

[1951.

[HIGH COURT OF AUSTRALIA.]

TUNNOCK AND OTHERS

. . . .

P l a i n t i f f s ;

AND

THE STATE OF VICTORIA AND OTHERS . D e f e n d a n t s .

H. C. OF A. Constitutional Law—Land—Compulsory acquisition—Soldier settlement—Joint Com­

1951.                  monwealth and State scheme—Invalidity of Commonwealth Act—Operation of State Act— War Service Land Settlement Agreements Act 1945 (No. 52 of 1945),

Sy d n e y ,

s. 3 (1)—Soldier Settlement Acts 1945-1949 (Viet.) (No. 5107 of 1945—No. 5438

July

16.

of 1949), ss. 22, 24, 27, 28, 41 (h).

M e l b o u r n e , Parts II, III and IV of the Soldier Settlement Acts 1945-1949 (Viet.) do

Oct. 8.not depend for their operation upon the existence of an agreement between

Dixon,

the Commonwealth and the State and are therefore not affected by the

MoTiernan,

Williams, Webb

inYalidity of the War Service Land Settlement Agreements Act 1945 (Cth.).

and Kitto JJ.The New South Wales legislation which was held to be inoperative in

P. J . Magennis Pty. Ltd. v. The Commonwealth, (1949) 80 C.L.R. 382, distin­ guished from the Victorian legislation.

D e m u r r e r .

In an action brought in the High Court by David Bruce Tiuinock, Evelyn Alice Sage and Reginald Hay, against the State of Victoria, the Soldier Settlement Commission, and the Attorney-General for the State of Victoria, the statement of claim was substantially as follows ;—

1. Francis Hay, late of Katunga, Victoria, died on 6th June

1948. Probate of his last will and testament was on 16th August 1948 granted by the Supreme Court of the State of Victoria to the plaintiffs who were appointed by the will to be the executors and trustees thereof.

2. The plaintiffs are and they sue as the executors and trustees of the will and estate of Francis Hay deceased.

3. For many years prior to the date of his death Francis Hay was the registered proprietor, and the plaintiffs as such executors and trustees are now and at all times material to this action since

84 C.L.R.] OF AUSTRALIA.

43

the death of the deceased have been the registered proprietors of

op A.

an estate in fee simple in certain land in the State of Victoria

comprising 363 acres and 13 perches, being Allotments 6 and 8,

T unnock

Section A, Parish of Katunga, County of Moira, and being the

V.

T h e

lands more particularly described in Crown Grants Volume 2751 Sta te ok

Folio 550065 and Volume 2772 Folio 565513 (hereinafter called V ic t o r ia .

“ the said land ” ).

4. For many years prior to the date of his death the deceased used the said land for the purpose of conducting thereon farming operations and since the date of his death the plaintiffs have continuously used the said land for a like purpose. The deceased made and the plaintiffs have made substantial profits from such farming operations.

5. For the purpose and in the course of conducting those farming operations the deceased spent during that period and in particular since February 1942 substantial sums of money in effecting improve­ ments to the said land. By reason of that expenditure and other­ wise the said land greatly increased in value between February 1942 and January 1950.

6. The defendant Soldier Settlement Commission is a body corporate with perpetual succession capable in law of suing and being sued. I t was constituted by the Soldier Settlement Act 1945 (No. 5107) of the State of Victoria for the purposes of the Soldier Settlement Acts of that State being the said Soldier Settle­ ment Act 1945, the Soldier Settlement {Amendment) Act 1946 (No. 5133), the Soldier Settlement Act 1946 (No. 5179) and the Soldier Settlement {Amendment) Act 1949 (No. 5438).

7. On 23rd November 1945 an agreement was made between the Commonwealth of Austraha of the one part and the State of Victoria of the other part, the terms of which are set forth in the First Schedule to the War Service Land Settlement Agreements Act 1945 (No. 52 of 1945) of the Commonwealth of Austraha and in the Schedule to the Soldier Settlement Act 1945 (No. 5107) of the State of Victoria.

8. By that agreement it was recited that a t a conference of Commonwealth and State Ministers on 22nd August 1945 certain proposals were agreed to with a view to the settlement on land in the State of Victoria of discharged members of the Forces and other ehgible persons and that it was expedient that an agreement be made between the Commonwealth of Austraha and the State of Victoria in order to carry into effect those proposals.

9. By the terms of and for the purposes of that agreement the Commonwealth of Austraha was required to make provision for

44 HIGH COURT

[1951.

H. C. OF A.

the payment of certain moneys to the State of Victoria and to

1951.persons settling on such lands.

T unn ock10. By the terms of that agreement the State of Victoria, in

addition to being required to provide certain moneys for the

T he

purposes of the scheme of land settlement contained in the agree­

Sta te

of

V lCTOKIA.

ment, was also required to acquire, compulsorily or by agreement, and at a value not exceeding that ruling on 10th February 1942, certain private lands within that State, namely, lands comprised in an approved plan of settlement within the meaning of cl. 10 of the agreement.

11. By the War Service Land Settlement Agreements Act 1945 (No. 52 of 1945) the Commonwealth of Australia purported to authorize the execution by or on behalf of the Commonwealth of that agreement.

12. The Premier of the State of Victoria signed the agreement and he purported to do so for and on behalf of the S ta te ; and by the Soldier Settlement Act 1945 (No. 5107) the State of Victoria purported to ratify the execution of the agreement by the Premier and purported also to approve the agreement.

13. By two several proclamations dated respectively 17th January 1950 and 21st February 1950 the Governor in Council pursuant to the said Act published in the Government Gazette a “ Preliminary Notice of Acquisition ” .

15. By notice in writing dated 10th October 1950 the defendant the Soldier Settlement Commission notified in the Government Gazette a “ Final Notice of Compulsory Acquisition ” .

The plaintiffs claimed (1) declarations (i) that the Soldier Settle­ ment Acts were, or, alternatively, that the Soldier Settlement Act 1945 (No. 5107) was inoperative and of no effect; (ii) that the agreement made between the Commonwealth and the State of Victoria set forth in the First Schedule to the War Service Land Settleynent Agreements Act 1945 (No. 52 of 1945) and the Schedule to the Soldier Settlement Act 1945 (No. 5107) was void and inopera­ tive ; and (iii) that the purported compulsory acquisition by the defendant Commission on behalf of the State of Victoria of the said land was void and of no effect; and injunctions restraining the defendants their servants and agents (i) from compulsorily acquiring the said land or taking any further action with the object or intention of compulsorily acquiring such land ; and (ii) from taking possession of and from entering upon the said land or any part thereof and from disturbing the plaintiffs or any of them in their possession and enjoyment of the said land.

84 C.L.R.] OF AUSTRALIA.

45

Each of the defendants demurred to the whole of the statement of claim upon the grounds, inter alia, (1) that it did not disclose any

19.51 .

cause of action against them or any of th e m ; (2) that the

Soldief

T u n n o c k

Settlement Acts 1945-1949 (Viet.) (Nos. 5107, 5133, 5179 and 5438)

V.

T h e

were and each of them was a valid and effective exercise of the Sta te of

legislative powers of the State of Victoria, and that they were

V ic t o r ia .

and each of them was operative and of full force and effect within the State of Victoria ; (3) tha t the agreement made between the Commonwealth and the State of Victoria set forth in the First Schedule to the IFar Service Land Settlement Agreements Act 1945 and the Schedule to the Soldier Settlement Act 1945 was in all respects valid and operative ; (4) that even if that agreement be void or inoperative the Soldier Settlement Acts referred to above were not by reason thereof rendered invalid or inoperative or of no effect, but such Acts were valid and operative and effective notwithstanding tha t fact. Those Acts did not depend for their operation or effect upon the existence as a valid or effective agreement of that agreem ent; and (5) that upon their proper construction those Soldier Settlement Acts authorized the com­ pulsory acquisition by the defendant Commission on behalf of the State of Victoria of the said land and such compulsory acquisition was validly effected under these Acts. By reason of those Acts the said land became vested in the Crown in right of the State of Victoria upon publication of the final notice referred to in par. 15 of the statement of claim.

The provisions of the relevant statutes and the agreement are sufficiently set forth in the judgments hereunder.

L. Voumard K.C. (with him Kevin Anderson), for the plaintiffs. This matter is governed by P. J . Magennis Pty. Ltd. v. The Com­ monwealth (1). The same considerations which rendered the New South Wales Act, or portions thereof, inoperative also render the Soldier Settlement Acts 1945-1949 (Viet.) inoperative. The Victorian legislation contemplates, and is based on, valid and effective legislation both by the Commonwealth and the State. The Victorian Acts are so drawn as to be incapable of operation without reference to the agreement. In New South Wales the legislature came to its task with a subsisting statute, namely, the Closer Settlement {Amendment) Act 1907-1939, and merely made amend­ ments to that statute ; but in Victoria the matter was commenced by enacting a special series of Acts. Wherever, in the Soldier Settlement Act 1945 (Viet.) (No. 5107) power is given to resume land

(1) (1949) 80 C.L.R. 382.

46 HIGH COURT

[1951.

H. C. OF A. for purposes of that Act, it means for purposes of the agreement. ]951.References in ss. 20, 28 (2), 75 and 82 of Act No. 5179 to the agree­

T unnock

ment make it clear that the purpose of the Act is to implement the

V.

agreement and therefore Magennis’ Case (1) is applicable. The War Service Land Settlement Agreements Act 1945 (Cth.) was an Act

T h e

Sta te

of

Vk'.tobia.

with respect to the acquisition of property on unjust terms and was therefore invalid {Magennis’ Case (2) ). The scheme embodied in the agreement in the First Schedule to that Act is a joint Com­ monwealth and State scheme (3). That scheme required valid legislation on the part of both the Commonwealth and the State to support i t ; therefore, as the Commonwealth legislation was invalid, the State Act could not have any operative effect (4). I t was implied in the judgment of the majority in Magennis’ Case (1) that they regarded the making of the agreement as an attem pt by the Commonwealth and the State to bind them­ selves legally. The result was that, as it was beyond the power of the Commonwealth, the agreement did not bind the Commonwealth and therefore there was not any agreement which the State could ratify (5). The proposed acquisition in Magennis’ Case (1) was unlawful because it was an acquisition for the purpose of a scheme which was contained in an inoperative and void agree­ ment (6). The State Act purported to ratify what was intended and believed to be a valid and binding agreement. As there was not any such agreement the State Act could not and did not operate (7). I t follows that if, upon their true construction, the Victorian Acts were intended to give effect to the agreement and to authorize the acquisition of land for the purpose of the joint scheme contained in the agreement, these Acts also are inoperative. The provisions of the Victorian Acts show that those Acts were clearly so intended and that that was their sole purpose : see Act No. 5107, heading, ss. 4, 5, 18, 22, 26, 27, 29, 30, 39, 41 (a) (c)-(f); Act No. 5179, ss. 5, 13, 14, 16 (2), 20, 28, 75, 82. The Victorian Acts lend themselves more readily to the application of the principles of Magennis’ Case (1) than did the New South AVales Acts. In the latter Acts there was a general power to resume for closer settlement and the terms of the proclama­ tion did not disclose the purpose. In the Victorian Acts the Act itself limits the power of acquisition to a power for a particular purpose, namely, to give effect to the agreement. Even assuming

(1) (1949) 80 C.L.R. 382.(4) (1949) 80 C.L.R. at pp. 422, 430.

(2) (1949) 80 C.L.R., at pp. 403, 423, (6) (1949) 80 C.L.R.

, at pp. 403-406,

424, 429, 430.

424, 425, 430.

(3) (1949) 80 C.L.R., at pp. 399, 418, (6) (1949) 80 C.L.R.

at pp. 424, 425.

422, 424.(7) (1949) 80 C.L.R.

, at p. 404.

84 C.L.R.] OF AUSTRALIA.

47

tha t s. 3 of the Soldier Settlement {Amendment) Act 1949 (Viet.)

H. C. OF A.

(No. 5438) did make provision for just terms, that would be

1951.

immaterial because Magennis^ Case (1) did not turn upon whether

T unn ock

the State Act provided just terms or n o t ; it turned on the finding

V.

T h e

that if the Commonwealth legislation was invalid then the State Sta te

of

legislation was inoperative. Since the Commonwealth Act is void

V ic t o r ia .

and the Victorian legislation is linked with the agreement, then the State Acts are inoperative no m atter what may be the terms upon which the land is to be acquired. If it makes any difference whether the State Acts did or did not provide just terms, then s. 3 of Act No. 5438 does not make provision for just terms. The reasoning in Magennis' Case (1) is equally applicable to the Victorian legislation.

H. A. Winneke K.C. (with him J. K. Manning), for the defend­ ants. The Victorian Soldier Settlement Acts are a valid and effective exercise of the legislative power of the Parhament of Victoria under s. 1 of the Constitution Act to make laws in and for Victoria, for the acquisition of land in Victoria for the settlement of ex­ members of the defence forces. Assuming the invalidity of the agreement in the First Schedule to the War Service Land Settle­ ment Agreements Act 1945 (Cth.) on the basis of the decision in Magennis' Case (1), the Victorian Acts, upon their proper construc­ tion, are effective to authorize the acquisition of the plaintiffs’ land, as their operation and effectiveness are not in any way dependent upon the effectiveness or operation of the agreement. P art IV of the Soldier Settlement Act 1945 (Viet.) (No. 5107) is the replacement of earlier legislation, and confers independent powers of acquisition at 1942 prices. The amending Acts show that the operation of the legislation was not to be dependent upon the agreement. Section 8 of the Soldier Settlement Act 1949 (Viet.) (No. 5370) provided for State valuation as distinct from joint Commonwealth and State valuation : see cl. 6 of the agreement. Section 3 of the Soldier Settlement {Amendment) Act 1949 (Viet.) (No. 5438) re-introduced a principle of valuation completely inconsistent with cl. 11 (1) {h) of the agreement. Such references to the agreement as remain in the Acts do not control their operation but are either definitive or consequential on the execution thereof : for example, s. 3 of Act No. 5107 and ss. 20, 21, 24 (1), 28 (2), 29 (2), 67, 68 and 82 (1) of Act No. 5179. The acquisition provisions of the Victorian legislation are not limited

(1) (1949) 80 C.L.R. 382.

48 HIGH COURT

[1951.

H.C. OF A.to lands acquired for purposes of the agreement or the scheme

1951. embodied therein. Sections 22 et seq of the Soldier Settlement

T uknockAct 1945 (No. 5107) refer only to the purposes of soldier settlement

V.

pursuant to the Acts. In that respect they are essentially different

T h e

from s. 4 (4) (5) of the Closer Settlement {Amendment) Act 1907­

Sta te

o f

V ic t o r ia .

1950 (N.S.W.), the proviso of which relates only to land purchased for the purpose of the scheme contained in the agreement. That distinguishes that aspect of Magennis’’ Case (1) entirely as the Victorian legislation is not confined to land purchased for the purposes of the agreement. Upon publication of the final notice of compulsory acquisition the land is vested in the Crown and the acquisition is thereupon complete. The acquisition sections are quite independent of the determination of compensation.

L. Voumard K.C., in reply. The history of the legislation supports the plaintiffs’ case. I t shows that Victoria was shedding

its own scheme in order to give effect to a joint scheme. Section 40

of Act No. 5107 gives effect to cl. 10 {b) of the agreement. If it be necessary to find an intention in the Act that it is to be dependent on a binding agreement, that intention is found by reference to cl. 1 of the agreement itself. I t is implicit in Magennis’’ Case (1) that the agreement was intended as a binding pact. I t is not necessary for the plaintiffs to go so far as to say that the whole Act is void. I t is sufficient if the provisions of the Act relating to resumption are so tied to the agreement as to be inoperative. The Victorian Parliament adopted substantially the language of cl. 6 (5) of the agreement. As to leases, see cl. 17 of the agreement.

Cur. adv. vult.

Oct. 8.

The following written judgments were delivered :—

D ix o n J. I have not been able to understand how in point of

principle the plaintiffs could obtain any foothold for their claim

in this suit for rehef. As reliance was placed by the plaintiffs

upon the decision of the Court in P. J . Magennis Pty. Ltd. v. The

Commonwealth (1), a decision in which I was unable to agree,

it is satisfactory to find that no member of the Court considers

that either as a result of that decision or otherwise the plaintiffs

are able to make out any title to relief.

In my opinion the demurrer should be allowed and the suit dismissed with costs.

(1) (1949) 80 C.L.R. 382.

84 C.L.R.]

OF AUSTRALIA.

McTiernan j . Ill

H. C. OF A,

my opinion the demurrer should be allowed.

1951.

The foundation of the Court’s jurisdiction to entertain this action is that there is a m atter arising under the Constitution

T unnock

or involving its interpretation, Judiciary Act 1903-1950, s. 30.

V.

The m atter is the question of the vahdity of the War Service Land

T h e

Sta te

of

Settlement Agreement 1945. The Court has already decided that

V lCTOKIA.

this Agreement is void (P. J. Magennis Pty. Ltd. v. The Common-

ivealth (1) ).

In the present case the defendants have not argued that Magennis’ Case (1) was wrongly decided ; but they have demurred to the statement of claim, at the same time accepting the position that the Agreement is void, as the Court decided in that case. In order to support the demurrer they draw distinctions between the purpose of the acquisition which was the subject of Magennis’ Case (1) and the purpose for which the acquisition in the present case was m ade; also, between the legislative powers which would have been available to make the acquisition of the land of the plaintiff in that case, and the legislative powers under which the acquisition in the present case was made.

In Magennis’ Case (1) the plaintiff alleged in the statement of claim that the Executive Government of New South Wales, in pursuance of s. 4 of the Closer Settlement Acts of the State, pub­ lished a proclamation notifying that the Government of New South Wales proposed to consider the advisableness of acquiring certain land of the plaintiff “ for the purpose of closer settlement

The plaintiff further alleged in the statement of claim that what the Government of New South Wales threatened and intended by the proclamation was the acquisition of the land “ for the purposes of the Agreement ” , namely, the War Service Land Settlement Agreement. The case was a demurrer and this allega­ tion was assumed in the argument to be correct. The Court decided that the Agreement was void and that neither the Common­ wealth nor the State of New South Wales had any constitutional power to ratify it or to make provision for the execution or performance of the Agreement. I t may be observed that the Government of New South Wales had power under the Closer Settlement Acts of the State to resume land for closer settlement, the purpose mentioned in the Proclamation, and under this power it could, doubtless resume land in order to settle any person in the class for whose benefit the Agreement had been made. The Court decided that as the Agreement was null and void the Government of New South Wales could not lawfully apply the powers which it had

(1) (1949) 80 C.L.R. 382.

VOL.

LX X X IV .— 4

HIGH COURT

[1951.

H.C. OF A. under the Closer Settlement Acts of the State to resume any land

1951. for the purpose of the Agreement. I t followed, so it was decided,

T unnockthat the Government of New South Wales could not lawfully pro­

V.ceed to make the resumption which the Proclamation indicated

T h e

that it was about to contemplate.

Sta te

of

V ic t o r ia .In the present case it is necessary to consider a set of legislative McTieman .T.provisions which are substantially different from the Closer Settle­

ment Acts of New South Wales. The present plaintiffs complain of an acquisition made by the Government of Victoria. The defend­ ants say that the acquisition is authorized by the powers conferred upon that Government by the Soldier Settlement Act 1945, as amended, of Victoria. The amending Acts were passed in 1946 and 1949. Section 27 of the principal Act confers power upon the Governor in Council to acquire compulsorily any land which the Soldier Settlement Commission, a body constituted under the Act, has recommended for acquisition “ for the purpose of Soldier Settlement pursuant to the Act or any amendment thereof ”. Section 22 gives power to the Commission to recommend land to the Governor in Council for acquisition for that purpose. The principal Act ratified the execution of the War Service Land Settlement Agreement by the Executive Government of the State and approved of the Agreement. The Soldier S^tlernent Acts, however, do not merely provide for carrying out the Agree­ ment or acquiring land for the purposes of the Agreement. I t is equally true that the Closer Settlement Acts of New South Wales were not passed to provide for either of those purposes. The bases of the decision in Magennis’’ Case (1) is that the Government of New South Wales applied the Closer Settlement Acts to effectuate the purposes of the Agreement. They were passed to make pro­ visions for the broad purpose of closer settlement within the State ; the Victorian Soldier Settlement Acts provide for carrying out the more special but analogous purpose of soldier settlement upon the lands of that State. I t has been shown that this special purpose is “ soldier-settlement ” pursuant to the Acts themselves. The references in the Acts to the War Service Land Settlement Agree­ ment make the terms of the Agreement relevant to the construction of the Acts and qualify the purposes for which the Government may exercise its statutory powers of taking land. The Acts, however, embody a scheme of “ soldier-settlement ” which is the creation of the State legislature. I t has not merely adopted the scheme embodied in the Agreement. The Soldier Settlement Acts authorize the compulsory acquisition of land only for the

(1) (1949) 80 C.L.R. 382.

84 C.L.R.]

OF AUSTRALIA.

purpose of “ soldier-settlement ” pursuant to these Acts. The

^

validity of these powers of acquisition is not affected by the invalidity

•

of the War Service Land Settlement Agreement. In the present

T un n o ck

case the Government of Victoria exercised these powers in order to

V.

T h e

acquire the plaintiffs’ land and the Government acquired the land for Sta te of

the purposes of ‘‘ soldier-settlement ” pursuant to these Acts. In V ic t o r ia .

Magennis' Case (1) the Government of New South Wales intended,

McTieman J.

according to the allegations in the statement of claim, to resume land for the purposes of the Agreement and not fpr closer settle­ ment pursuant to the Closer Settlement Acts of New South Wales. There is a substantial distinction between the purpose of the acquisition in the present case and the accepted purpose of the threatened acquisition in Magennis' Case (1). The purpose in the present case is lawful and clearly within the constitutional powers of the State of Victoria. The purpose in Magennis' Case (1) was, according to the decision in the case, unlawful, beyond the constitutional powers of the State of New South Wales and outside the ambit of the Closer Settlement Acts of that State. In my opinion it is not possible to invalidate the acquisition of the plaintiffs’ lands by applying Magennis' Case (1). Apart from that decision, the vahdity of the acquisition could not be in doubt.

W il l ia m s a n d W e b b JJ . This is a demurrer to a statement of claim in an action brought by the executors of Francis Hay deceased, who died on 6th June 1948, seeking declarations (1) that the Soldier Settlement Acts 1945-1949 (Viet.) are, or alternatively tha t the Soldier Settlement Act 1945 (No. 5107) is, inoperative and of no effect; (2) that the agreement made between the Com­ monwealth of Australia and the State of Victoria set forth in the First Schedule to the Commonwealth War Service Land Settlement Agreements Act 1945 and the Schedule to the Soldier Settlement Act 1945 (No. 5107) is void and inoperative ; (3) that the purported compulsory acquisition by the defendant Commission on behalf of the State of Victoria of the land referred to in the statement of claim is void and of no effect; and consequential injunctions. The grounds of the demurrer to the statement of claim are (1) that it discloses no cause of action against the defendants or any of th em ; (2) that the Soldier Settlement Acts of the State of Victoria are valid and effective exercises of the legislative powers of the State of Victoria and that each of these Acts is operative and of full force and effect within the State of Victoria ; (3) that the above agreement is valid ; (4) that even if this agreement is invalid

(I) (1949) 80 C.L.R. .382.

52

[1961.

HIGH COURT

H.C. OF A.the Soldier Settlement Acts are not thereby rendered invalid or

1951. inoperative or of no effect, but are valid and operative and effective

T u n n o c knotwithstanding that fa c t; and (5) that upon their proper con­

V.struction the Soldier Settlemeyit Acts authorized the compulsory

T h e

acquisition by the defendant Commission on behalf of the State

Sta te

of

V ic t o r ia .of Victoria of the land referred to in the statement of claim and Williams J. such compulsory acquisition was validly effected under these Acts. Webb J.The deceased in his lifetime owned 363 acres of land in the

Parish of Katunga, County of Moira, in the State of Victoria, on which he carried on a farming business and this business has been continued by his executors since his death. On 23rd November 1945 the State of Victoria entered into an agreement with the Commonwealth of Australia subject to approval by the State with a view to the settlement on land in the State of discharged members of the Forces and other eligible persons. The form of the agree­ ment is set out in the First Schedule to the War Service Land Settlement Agreement Act 1945 of the Commonwealth of Australia and in the Schedule to the Soldier Settlement Act 1945 (No. 5107) of the State of Victoria. The entering into an agreement in the same form between the Commonwealth and the State of New South Wales was held to be beyond the constitutional powers of the Commonwealth in P. J . Magennis Pty. Ltd. v. The Commonwealth{!). The Victorian Acts knowu as the Soldier Settlement Acts of the State of Victoria passed subsequently to the agreement of 23rd November 1945 are the Soldier Settlement Act 1945 (No. 5107), the Soldier Settlement [Amendment) Act 1946 (No. 5133) to be read and construed as one with Act No. 5107, the Soldier Settlement Act 1946 (No. 5179) to be read and construed as one with the two previous Acts, the Soldier Settlement Act 1949 (No. 5370) to be read and construed as one with the three previous Acts, and the Soldier Settlement [Amendment) Act 1949 (No. 5438) to be read and construed as one wdth the four previous Acts. By a pre­ liminary notice of acquisition, notified in the Victoria Government Gazette of 18th January 1950, it was directed that the 363 acres should be compulsorily acquired for the purposes of the Soldier Settlement Acts. The last of these Acts, No. 5438, was not then in force. I t came into force on 8th February 1950. A second preliminary notice of compulsory acquisition of the 363 acres was then notified in the Gazette of 22nd February 1950 and this notice was followed by a final notice of compulsory acquisition published in the Gazette on 11th October 1950.

(1) (1949) 80 C.L.R. 382.

84 C.L.R.] OF AUSTRALIA.

53

The attack on the validity of the acquisition is based on the reasoning of the majority of this Court in Magennis' Case (1).

^

I t

was contended tha t the same considerations which led the majority

T un n o ck

to hold not only tha t the War Service Land Settlement Agreements V.

.

T h e

Act 1945 of the Commonwealth so far as it authorized the execution St a t e of

of the agreement contained in the First Schedule to tha t Act was V ic t o r ia .

invalid, but also tha t the War Service Land Settlement Agreement

WiUiams J.

Act 1945 (N.S.W.) and the proviso to s. 4 (4) (6) of the Closer Settle­

Webb J.

ment {Amendment) Act 1907 introduced by the War Service Land Settlement and Closer Settlement {Amendment) Act 1945 and amended by the War Service Land Settlement and Closer Settlement {Amend­ ment) Act 1948 were inoperative, must lead in the present case to the conclusion th a t the Victorian Soldier Settlement Acts are also inoperative. The principal Act is No. 5107. I t is divided into five Parts. Part I provides for the ratification and approval of the agreement in question ; Part II provides for the incorpora­ tion of the Soldier Settlement Conmiission; Part I I I provides for financial m a tte rs ; P art IV provides for the powers and functions of the Commission, comprising Div. 1—Acquisition and Setting Apart of Land, and Div. 2—Settlement of and Advances to Discharged Soldiers; and Part V provides for the making of regulations. I t follows from Magennis' Case (1) tha t Part I of the Act must be inoperative because there was no valid agreement between the Commonwealth and the State of Victoria which the Victorian Parliament could ratify and approve. But what of the four other Parts ? The reasoning in Magennis' Case (1) throws no light upon the effectiveness of these Parts of the Act. In that case the War Service Land Settlement Agreement Act 1945 (N.S.W.) was held to be inoperative because all that it did was to approve and ratify the agreement made on 28th November 1945 between the Commonwealth and the State of New South Wales. But that was an agreement into which the Commonwealth could not validly enter, so that there was no agreement which could be approved and ratified and the Act was ineffective. The proviso to s. 4 (4) (6) of the Closer Settlement {Amendment) Act 1907 amended as already mentioned provided that where any resumption was made for the purposes of the scheme approved and ratified by the War Service Land Settlement Agreement Act 1945 the value of the land should not exceed its value on 10th February 1942. I t was held tha t this proviso was also inoperative because it dealt with a resumption for the purpose of the scheme and that purpose failed because the agreement was invalid. As there was

(1) (1949) 80 C.L.R. 382.

54 HIGH COURT

[1951.

I I . C'. OF A .

110 agroeineiit, the War Service Land SeUlement Agreement Act

11)51.19d5 ii])|)roved imd rutified nothing, and there could not be any " rU N N O C K

resumption under the Closer Settlement {Amendment) Act to which

V.the ])roviso could ajiply. The War Service Land Settlement Agree­

T he

ment Act IhTb and the proviso were valid exercises of legislative

S ta te

of

V lOTOHlA.power by the New South Wales Parliament, but the enactments

Williams J.

failed because they had in law no operation whatsoever.

Webb ,T.

I t was contended for tlie plaintifls tiiat the Soldier Settlement Acts of Victoria also fail because their operation is entirely dependent upon the validity of the agreement of 23rd November 1945 and the invalidity of section 3 (1) of the Commonwealth War Service Land Settlement Agreements Act 1945 destroys the effective operation of the Victorian legislation. This contention requires a short examina­ tion of the Victorian Acts. Act No. 5107 was no doubt mainly enacted to carry out the joint Commonwealth and State scheme embodied in the agreement for the settlement of discharged soldiers and other eligible persons on Victorian land. The preamble states that it is an Act to ratify the execution for and on behalf of the State of Victoria of an agreement between the said State and the Commonwealth of Australia in relation to Soldier Settle­ ment and to approve the agreement so executed. But the operation of the Act was not confined to this purpose. The preamble also states that it is an Act to constitute a Soldier Settlement Com­ mission and confer certain powers and functions upon the Com­ mission, and for other purposes. Part II of the Act contains ss. 5 to IG. Section 5 (1) provides that “ For the purposes of this Act there shall be a Commission, appointed by the Governor in Council and constituted as hereinafter provided, to be called the ‘ Soldier Settlement Commission ’ ”. Part I I I contains ss. 17 to 21. Sec­ tion 17 (1) provides that “ For the purposes of this Act the Governor in Council- («) may from time to time increase the amount of stock known as the Victorian Government Stock erected under the authority of the Victorian Government Stock Act 1890 by an additional amount not exceeding in the whole Fifteen milhon pounds ; ” (increased to £25,000,000 by s. 4 of Act No. 5370). This Part provides for the application of this amount in the acquisi­ tion &c., of land acquired or set apart pursuant to this Act or the Land Settlement {Acquisition) Act 1943 (Viet.). The introductory words in Parts 11 and 111 For the Purposes of this Act ” are quite inapt to make the operation of these parts dependent upon the validity of the agreement. If that liad been the intention of the Victorian Parliament the words would ha ve been “ For the purposes of the agreement ” . The State of Victoria did not promise in the

84 C.L.R.] OF AUSTRALIA.

55

agreement to enact these Parts. They are an independent exercise

of the constitutional legislative powers of the Victorian Parliament.

P art IV of the Act contains the provisions for the acquisition and setting apart of land pursuant to which the defendant Com­

T unn ock

V.

T h e

mission has purported compulsorily to acquire the plaintiffs’ land. Sta te of

Section 22 provides tha t for the purposes of soldier settlement V ic t o r ia .

pursuant to this Act or any amendment thereof—(a) the Com­

WUliams J.

mission, with the approval of the Minister, may recommend to the

Webb J.

Governor in Council tha t any Crown land should be set apart for those purposes ; and (b) the Commission, with the approval of the Minister may (i) direct any of its inspectors, &c., to enter and inspect and report on any land which, in the opinion of the Com­ mission, may be suitable for such purposes; and recommend to the Governor in Council tha t any land should be acquired for such purposes. Section 24 provides that “ if the Governor in Council approves any such recommendation {a) under paragraph (a) of section twenty-two of this Act—the Governor in Council may direct the Minister to cause such land to be set apart accordingly ; (b) under paragraph (b) of section twenty-two of this Act—the Governor in Council may direct the Commission to negotiate for the acquisition of such land accordingly.” Section 27 (1) provides that “ Where it appears to the Governor in Council that any land proposed to be acquired for the purposes of this Act cannot be acquired by agreement or cannot be so acquired at a reasonable price the Governor in Council may direct that such land be acquired

compulsorily.”

Section 28, as amended by s. 2 of Act No. 5438,

provides tha t upon publication of the preliminary notice of com­ pulsory acquisition every person who has any estate or interest in respect of the land described in the notice shall have a claim for compensation and that upon publication of the final notice by virtue of this Act and without any further or other conveyance or transfer the land described in the final notice shall be vested in the Crown for the purposes of this Act and deemed to be un­ alienated land of the Crown. Sections 30 to 36 provide for the assessment of compensation by agreement or by action. Sec­ tion 36 (2), as amended by s. 3 of Act No. 5438, provides that in the determination of compensation the value of the land shall be taken to be such amount as a bona-fide purchaser who proposed to use the land for the same purpose as that for which it was being used at the date of pubhcation of the preliminary notice of com­ pulsory acquisition might reasonably have been expected to offer for the land at that date.

56 HIGH COURT

[1951.

H.C. OK A.Clause 11 of the agreement provides that the State shall (a) set

1951. apart or resume, as the case might be, for settlement such land

'Funnockcomprised in an approved plan of settlement as is Crown land ;

V.and (b) acquire compulsorily or by agreement and at a value not

'Fh eexceeding that ruling on lOth February 1942, private land or lands

Sta te

ok

V ic t o r ia .held under lease from the Crown comprised in an approved plan Williams .1. of settlement. The agreement, therefore, provides for the State

Webb J.

of Victoria making both Crown lands and private lands available for the purposes of the agreement. But the power conferred by s. 24 is not confined to setting apart or resuming Crown land which is comprised in an approved plan of settlement, and the power to acquire private land was not in February 1950 a power to acquire the land at a value not exceeding that ruling on 10th Feb­ ruary 1942, but to acquire the land at the value already mentioned. This shows that the Victorian Parliament did not intend the opera­ tion of the power of acquisition contained in Part IV of the Soldier Settlement Acts to be mere machinery for carrying out the agree­ ment.

No sound argument can be advanced to show that the operation of Act No. 5107 in its original form was intended to be dependent upon the validity of the agreement. Section 3 of this Act does no doubt provide that the agreement means the agreement a copy of which is set out in the Schedule to this Act, and that “ dis­ charged soldier ” means any person who is an “ eligible person ” within the meaning of the agreement. But the agreement exists in fact if not in law and this is at most a referential definition of what is meant by a “ discharged soldier ” for the purposes of the Act. The same may be said of the reference to the assistance period referred to in the agreement contained in ss. 27 and 82 of Act No. 5179. Successive amendments of the Act have destroyed any shadow of such an argument if it ever existed. The references to the agreement in sections 25 and 41 (1) {h) of Act 5107 have been eliminated and the reference to the values ruling on 10th February 1942 in s. 36 (2) (6) has also been eliminated. That basis of valuation has now been superseded by a more just basis. Section 28 (1) of Act 5179 contained a reference to the factors referred to in sub-cl. 5 of cl. 6 of the agreement. But this reference has also been eliminated. Section 75 {a) of Act 5179, which previously imposed upon the Commission the duty of giving effect subject to the provisions of the Soldier Settlement Acts to the agreement, has now been recast in a more general form. An examination of the amendments indicates a definite intention on the part of the Victorian Parliament to make the operation of its Soldier Settle-

84 C.L.R.]

OF AUSTRALIA.

ment Acts self-contained and quite independent of the validity of

1951.

the agreement. There are some provisions of the Acts which

^-V-'

still remain so closely linked with the agreement that its invahdity

T unn ock

may affect their particular operation, see, for instance, ss. 13 (2) {a) V.

T h e

(ii) and 20 of Act 5179. But, even if these provisions are ineffective, Sta te of

they cannot affect the vahdity of other portions of the Acts and, in V ic t o r ia .

particular, they cannot affect the validity of the provisions relating

to the acquisition of the plaintiffs’ land.

Section 27 of Act 5107

authorizes the Governor-General to acquire land compulsorily for the purposes of the Act, not for the purposes of the agreement, and the prehminary and final notices of compulsory acquisition of the plaintiffs’ land are notices th a t the land is acquired for the purposes of the Soldier Settlement Acts.

For these reasons the demurrer should be allowed.

K itto j . In my opinion there is no substance in the plaintiffs’ contention tha t the statutory provisions of the State of Victoria upon which the defendants rely are inoperative. The reasoning of the majority of the Court in P. J. Magennis Pty. Ltd. v. The Commonwealth (1), plainly does not warrant the contrary view. That case, so far as it related to State legislation, was a decision on the construction of particular provisions which were markedly different from those now in question. I am unable to see in the allegations contained in the statement of claim any ground for denying the validity of the compulsory acquisition of the plaintiffs’ land by the defendant Commission.

In my opinion the demurrer should be allowed and the action dismissed.

Demurrer allowed.

Suit dismissed with costs.

Sohcitors for the plaintiffs, S. W. Stife, Numurkah, by Paul 0.

Nunan, Melbourne, and Matthew McFadden & Co., Sydney.

Sohcitor for the defendants, Frank G. Menzies, Crown Solicitor for Victoria.

J. B.

(1) (1949) 80 C.L.R. 382.