Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Land Acquisition (Just Terms Compensation)
Act 1991 (the Principal Act) to clarify the application of sections 7A and 7B of that
Act relating to the acquisition of native title rights and interests and the acquisition
of land already owned by the acquiring authority.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.

Schedule 1 Amendment of Land Acquisition (Just
Terms Compensation) Act 1991 No 22
Section 7 of the Principal Act provides that (subject to sections 7A and 7B) the Act
does not empower an authority of the State to acquire land (compulsory acquisitions
of land are required to be carried out in accordance with the Act but the power to

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Land Acquisition (Just Terms Compensation) Amendment Bill 2009
Explanatory note
acquire land is ordinarily conferred by the Act that establishes or regulates that
authority of the State). Section 7A of the Principal Act provides that an authority of
the State that is authorised by law to acquire land by compulsory process under the
Principal Act may acquire native title rights and interests in the land in the same way
other interests may be acquired. Section 7B of the Principal Act provides that an
authority of the State that is authorised by law to acquire land by compulsory process
in accordance with the Principal Act may so acquire land even if the land is vested in
the authority itself. Both sections were inserted into the Principal Act by the Native
Title (New South Wales) Act 1994.

In the course of allowing an appeal against a decision of the Court of Appeal of the
NSW Supreme Court in relation to the validity of the compulsory acquisition of land
for the proposed Parramatta Civic Place project by the Parramatta City Council (R &
R Fazzolari Pty Ltd v Parramatta City Council; Mac’s Pty Ltd v Parramatta City
Council [2009] HCA 12), the High Court interpreted the power conferred by
section 7B as a power to acquire land under the Principal Act and not as a power
exercised under the authority of the provisions of the Local Government Act 1993.

A power to acquire land under the Local Government Act 1993 may be exercised
only for the purpose of the exercise of the council’s functions and subject to other
rights and restrictions (such as the need to obtain the approval of the Minister). By
analogy, the power to acquire native title rights and interests under section 7A may
also be characterised as a power conferred by the Principal Act, and not as a power
exercised under the authority of another law, and therefore may not be subject to the
restrictions and conditions contained in the Local Government Act 1993 and other
compulsory acquisition legislation. This was not the original intention of sections 7A
and 7B since it is a necessary precondition to the extinguishment of native title rights
and interests by compulsory acquisition that the law does not discriminate between
the compulsory acquisition of native title rights and interests and other rights and
interests in land (section 24MD of the Native Title Act 1993 of the Commonwealth).

Schedule 1 [1] substitutes section 7 of the Principal Act. The substituted section
declares that an acquisition of land by compulsory process to which section 7A or 7B
applies by an authority of the State that has power under another Act to acquire land
by compulsory process is made under and subject to that other Act. Accordingly, the
acquisition is limited to the purposes for which land may be acquired by compulsory
process under that other Act and other relevant rights and obligations in that other
Act will continue to apply to the authority. In the case of the acquisition of land by
councils, the applicable provisions are found in sections 186 to 190 of the Local
Government Act 1993 (those provisions will now extend to compulsory acquisitions
of native title rights and interests and of roads and other land vested in the council).

Schedule 1 [2] amends section 7A of the Principal Act to refer to an acquisition of
native title rights and interests “in accordance with” the Principal Act instead of such
an acquisition “under” the Principal Act.

Schedule 1 [3] enables regulations of a savings or transitional nature to be made
consequent on the enactment of the proposed Act.

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Land Acquisition (Just Terms Compensation) Amendment Bill 2009
Explanatory note
Schedule 1 [4] extends the proposed amendments to acquisitions and proposed
acquisitions before the commencement of the proposed Act. However, existing court
determinations (such as the High Court decision in the Parramatta Civic Place case
to invalidate the council’s compulsory acquisition of certain properties) are not
affected. In particular, the clause seeks to ensure that any land with native title rights
and interests that may have been acquired before the amendments are made (but are
not authorised by the amendments) will not extinguish or otherwise affect those
native title rights and interests.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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