Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
LANDS ACQUISITION LEGISLATION AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Finance and Deregulation,
the Hon Lindsay Tanner MP)
LANDS ACQUISITION LEGISLATION AMENDMENT
BILL 2008
OUTLINE
The purpose of this Bill is to amend the Lands Acquisition Act 1989 (`the Act') to
reflect the changes in the modern Commonwealth property environment since the Act
was last amended in 1989. This was based on feedback from Commonwealth
agencies and relevant stakeholders on the practical operation of the Act.
Amendments to Section 124 of the Act will lay a platform to promulgate
Commonwealth Mining Regulations. The amendments to section 124 would enable
States and Territories to administer exploration and/or mining on Commonwealth land
through regulations that incorporate or adopt appropriate State/Territory mining
legislation. The Commonwealth Mining Regulations will provide a consistent
regulatory framework for the management and administration of mining on
Commonwealth land. The development of these Commonwealth Mining Regulations
would involve continued consultation and negotiation with States/Territories as well
as the Ministerial Council on Mineral and Petroleum Resources.
Empowering the Federal Court with jurisdiction in matters arising under the
Commonwealth Mining Regulations will ensure consistency of judicial and review
processes throughout the Act.
The penalty regime prescribed under regulations in the Act will now provide for a
maximum penalty of 50 penalty units for an individual and 250 penalty units for a
body corporate for breaching the regulations. This is in line with the
Commonwealth's Criminal Law Policy.
The ability of the Minister to initiate an offer of compensation to an interest holder
without a claim being made promotes efficiencies and fairness in the application of
the Act. Where the Minister identifies that a person's interest has been acquired and
no claim has been received within 12 months, the Minister will be able to make an
offer of just terms compensation. This should expedite the acquisition process and
ease the financial and administrative burden associated with the compensation
process. The rights of recipients of offers to the review and determination processes
under the Act are preserved. In addition, recipients will have access to compensation
for legal and professional costs reasonably incurred in relation to the acquisition in
accordance with the Act.
An agreed acquisition of an interest that is available in the market is reported on
AusTender and is sufficient for transparency and accountability purposes. AusTender
provides a central publication for reporting Australian Government procurements and
contracts awarded. The amendment to remove the requirement to table these
transactions in Parliament eliminates duplication in reporting but maintains
transparency and accountability of the process through AusTender. The amendment
is consistent with initiatives to reduce red tape in Government administration.
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The inclusion of Section 18B of the Cocos (Keeling) Islands Act 1955 into Section 5
of the Act, eliminates an inconsistency that arose when the Act was last amended in
1989. The amendment to allow the Cocos (Keeling) Islands Act 1955 to administer
land on Cocos Islands reflect similar provisions that are in place for Section 21A of
the Christmas Island Act 1958 and Section 62 of the Norfolk Island Act 1979.
The replacement of the reference to the Attorney-General with the Minister in Section
122 of the Act creates a more appropriate and efficient process, given that the
Minister has the responsibility for administration of the Act.
The repeal of the Lands Acquisition (Defence) Act 1968 will eliminate redundant
legislation which was created in order to acquire public parkland in New South
Wales. This acquisition has long since passed and that Act can now be repealed.
Financial impact statement
There are no net negative financial implications from the amendments. There will be
a reduction in administrative costs associated with changes to the tabling requirements
for commercial, non-contentious transactions. Furthermore, creation of a framework
that allows the Minister to initiate the compensation process for an acquired interest is
likely to reduce the financial burden of the acquisition process.
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LANDS ACQUISITION LEGISLATION AMENDMENT
BILL 2008
NOTES ON ITEMS
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the Act.
Clause 2: Commencement
2. This clause provides a table outlining the time of commencement of each
provision of the Act.
Clause 3: Schedule(s)
3. Each Act that is specified in a Schedule to this Act is amended or repealed as set
out in the applicable items in the Schedule concerned, and any other item in a
Schedule to this Act has effect according to its terms.
Schedule 1: Mining Regulations
Item 1: Subsection 124(2)(b)
i. This clause allows regulations under Section 124 of the Act to vest the
Federal Court of Australia with jurisdiction in matters arising from
regulations. The inclusion of the Federal Court enables review of any
issues arising under proposed mining regulations.
ii. The empowerment of the Federal Court to review matters arising under the
regulations ensures that any mining regulations made under Section 124 of
the Act have a judicial and review process consistent with the rest of the
Act.
Item 2: Subsection 124(3)
iii. The clause allows regulations made for the purposes of Subsection 124(1)
of the Act to apply, adopt or incorporate (with or without modifications),
State and Territory laws as in force at an existing time or as in force from
time to time.
Item 3: Subsection 124(7)
iv. This clause defines the law of a State or Territory for the purposes of
Section 124 of the Act.
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Item 4: Subsection 124(7)
v. This clause defines modifications for the purposes of Subsection 124(3A)
of the Act.
Schedule 2 Offers by Minister of compensation where no claim is made
Item 1: After Section 74
vi. Section 74A has been inserted to allow the Minister to initiate an offer of
just terms compensation to a person who has had an interest in their
property acquired by the Commonwealth under Section 41 of the Act.
vii. The clause specifies that prior to making an offer, the Minister must be
satisfied that the person has had an interest acquired.
viii. Subsection 74A(1)(a) specifies that 12 months must have passed before the
Minister can make an offer of compensation to a person who has had an
interest compulsorily acquired by the Commonwealth. This will allow
persons time to assess whether they have a compensable interest in the
land and submit a claim for compensation.
ix. The Minister's offer of compensation is the amount the Minister considers
the person is entitled to in accordance with Division 2 of the Act.
x. Subsection 74A(1)(c) requires that the Minister cannot make an offer
under this Subsection if a claim has been submitted under Section 67 of
the Act. This ensures that a situation cannot arise where an offer has been
made under both Section 70 and Subsection 74A of the Act.
xi. Where the Minister makes an offer of compensation, he or she must
explain how the amount of the offer was arrived at. This is consistent with
Section 70 of the Act.
xii. Subsection 74A(3) provides that a claim cannot be made under Section 67
of the Act if an offer is made under Section 74A. This ensures that a
situation cannot arise where an offer has been made under both Section 70
and Section 74A of the Act.
Items 2-18:
xiii. These clauses are consequential amendments as a result of the inclusion of
Section 74A. The clauses ensure that the Act is consistent throughout
Part VII.
xiv. The clause amending Section 82 allows the amount of compensation
offered by the Minister to be reviewed in the Federal Court.
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xv. The clauses have been amended to encompass both a situation where a
person has submitted a claim for compensation under Section 67 of the Act
and where the Minister has made an offer under Section 74A of the Act.
xvi. Most of these amendments involve the replacement of "claimant" with
"person".
Items 19-21:
xvii. These clauses are consequential amendments as a result of the inclusion of
Section 74A.
Item 22: After Section 101
xviii. Section 101A has been inserted to allow the Minister to make an offer of
compensation to a person who has suffered a loss.
xix. Under Section 101A a person is entitled to compensation if they have
suffered a loss as a result of:
(a) powers conferred under Part III of the Act;
(b) the revocation of a pre-acquisition document because of
either Subsection 44(4) or 46(3) of the Act; or
(c) the revocation of a Section 24 certificate because of
Subsection 46(3) of the Act.
xx. This provision differs from that of Section 74A insofar that Section 101A
relates to compensation for a loss suffered as opposed to compensation for
a compulsorily acquired interest under Part VII of the Act.
xxi. The clause specifies 12 months must have passed before a Minister can
make an offer of compensation to a person who suffered a loss under
Section 101A.
xxii. Should three years elapse since the loss was suffered, the Minister will not
be able to make an offer for compensation. This is consistent with similar
provisions for losses incurred under this Part of the Act.
xxiii. If an offer of compensation is made under Section 101A, the Minister must
explain how the amount of the offer was arrived at.
xxiv. This clause stipulates that a claim cannot be made under Section 97 of the
Act if the Minister has made an offer under Section 101A. This ensures
that a situation cannot arise where a Minister makes an offer under both
Section 98 and Section 101A of the Act.
Items 23-46:
xxv. These clauses are consequential amendments as a result of the inclusion of
Section 101A. The clauses ensure that the Act is consistent throughout.
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xxvi. The clauses have been amended to encompass both a situation where a
person has submitted a claim for compensation under Section 97 of the Act
and where the Minister has made an offer under Section 101A of the Act.
xxvii. Most of these amendments constitute the replacement of the word
"claimant" with "person".
Item 47: Subsection 127(1)(a)
xxviii. This clause enables the Federal Court to identify an interest in land with
relation to either a claim for compensation under either Sections 67 or 97
Act or an offer of compensation under Subsections 74A(1) or 101A(1), (2)
or (3).
xxix. The ability of the Federal Court to determine interest in relation to a
Minister's offer is consistent with the rest of the Act.
Item 48: Application
xxx. This clause provides that the amendments listed in this Schedule
commence on a single day to be fixed by proclamation or, if they do not
commence within 6 months of the day the Bill receives Royal Assent, on
the first day after the end of that period.
Schedule 3 Other Amendments
Item 1: After Subsection 5(2)
xxxi. This clause enables provisions under Section 18B of the Cocos (Keeling)
Islands Act 1955 to apply to land on Cocos Islands, without reference to
the Act.
xxxii. The purpose of this clause is to correct an oversight. The Cocos (Keeling)
Islands Act 1955 was unintentionally omitted from inclusion into Section 5
of the Act when it was amended in 1989.
xxxiii. The inclusion of the Cocos (Keeling) Islands Act 1955 is consistent with
similar provisions under Section 5 of the Act for the Section 21A of the
Christmas Island Act 1958 and Section 62 of the Norfolk Island Act 1979.
Item 2: Subsection 21(1)(a)
xxxiv. This clause is a consequential amendment as a result of the inclusion of
Item 1 of this Schedule.
Item 3: Subsection 40(3)
xxxv. This clause provides that a statement will not have to be lodged with each
House if its meets the criteria of Subsection 40(3A).
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Item 4: After Subsection 40(3)
xxxvi. This clause provides that an acquisition by agreement in the market need
not be laid before each House.
Item 5: Application
xxxvii. This clause provides that the amendments listed in Items 3 and 4 of this
Schedule commence on a single day to be fixed by Proclamation or, if they
do not commence within 6 months of the day the Bill receives Royal
Assent, on the first day after the end of that period.
Item 6: Subsection 117(1)(a)
xxxviii. This clause is a consequential amendment as a result of the inclusion of
Item 1 of this Schedule.
Item 7: Subsection 122(3)
xxxix. This clause transfers the responsibility under Subsection 122(3) from the
Attorney-General to the Minister.
xl. This enables the Minister responsible for the administration of the Act, to
authorise land title documents under Section 122 of the Act.
Item 8-9: Subsections 138(1) and 138(2)
xli. These clauses are consequential amendments due to the inclusion of the
Minister in Item 7 of this Schedule.
Item 10: Section 140
xlii. This clause allows the Governor-General to make regulations prescribing
penalties not exceeding 50 penalty units for an individual for offences
against the regulations. If a body corporate commits an offence against the
regulations, they would be subject to a maximum penalty of 250 penalty
units.
Schedule 4 Repeal of the Lands Acquisition (Defence) Act 1968
Item 1: the whole of the Act
xliii. This clause will repeal the redundant Lands Acquisition (Defence) Act
1968.
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