Jones v The Commonwealth [1963] HCA 43

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Jones v The Commonwealth [1963] HCA 43

ORDER Demurrer overruled with costs. Judgment in the action declaring that the land mentioned in the statement of claim was not acquired by the Commonwealth by virtue of the publication in the Gazette on 8th April 1963 of the notice of acquisition dated 5th April 1963. Order that the defendants pay the plaintiff's costs of the action.

Cur. adv. vult.

The following written judgments were delivered:

Oct. 18 Dixon C.J.

This is a demurrer by the defendants to a statement of claim. The action is by a landowner who complains of a notice of acquisition under the Lands Acquisition Act 1955-1957 Cth. The statement of claim discloses that the landowner resisted the acquisition and impugned its validity. The defendants demurred to the statement of claim. In the proceedings the notice of acquisition happens to be set out in full in the ground of demurrer. But in any case in the initial part of the statement of claim its effect is set out with considerable fidelity. It is desirable to set out the terms in which it is expressed: "It is hereby notified that His Excellency The Governor-General acting on the advice of the Federal Executive Council has authorized pursuant to the provisions of the Lands Acquisition Act 1955-57, the acquisition by compulsory process of the land hereunder described, and I declare that the said land is acquired by the Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General—The Australian Broadcasting Commission at Ripponlea, Victoria—(D. 5374)— Ex. Min. No. 201). Dated this 5th day of April One thousand nine hundred and sixty three."

Under the law it is necessary that a notice of acquisition should show the public purposes for which the land is acquired. Under s. 10 (3) and (4) in the case of compulsory acquisition the Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the land is acquired under the Act for the public purpose approved by the Governor-General, and upon the publication of the notice in the Gazette the land to which the notice applies is, by force of the Act, vested in the Commonwealth. An attentive reading of the notice of acquisition set out above will at once show that there must be a question whether it states any "public purpose" at all. I do not quite know what is intended by saying that the land is acquired "for the following public purpose The Australian Broadcasting Commission at Ripponlea, Victoria". It appears to me that it is essential under the provisions of the statute which I have stated, to express the public purpose. It is not enough to leave it to inference. There is a number of reasons for this. One is that under the Constitution the power of the Commonwealth is limited to the acquisition of property on just terms for any purpose in respect of which the Parliament has power to make laws: s. 51 (xxxi.). Another reason is that the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose. A third reason is that under s. 12 of the Lands Acquisition Act 1955-1957 a copy of the notice must be submitted to each House of Parliament and either House may within thirty days by resolution declare it void and of no effect. What exactly was intended by the authors of the notification may no doubt be seen by speculation and deduction and so on but for myself I think that it is intended that the purpose should be expressed and not left to inference. In the present case no doubt it is possible to infer with some confidence that the purposes which the Australian Broadcasting Commission exercise in point of fact provide the purpose which was in mind; but the Act of Parliament is not satisfied by speculative inferences. The purpose must be stated. What appears to have been stated is, if read literally, that there is a public purpose and it is a statutory corporation at Ripponlea. What the statutory corporation is can be found from the Broadcasting and Television Act. I do not regard a corporation as a purpose within the meaning of this statute. What it does may afford purposes, what it desires to do may afford purposes, what it is authorized to do may afford purposes, but that is not the same thing as the corporation itself.