Editors --- "Compulsory Acquisition of Land: 'Urgent Necessity' - Procedural Fairness - Case Note" [2006] AdminRw 14; (2006) 57 Admin Review 84

• Compulsory acquisition of land: ‘urgent necessity’—procedural fairness

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Compulsory acquisition of land: ‘urgent necessity’—procedural fairness

One set of questions in South Australia v Honourable Peter Slipper MP^[1] concerned whether a statutory land acquisition power was used for a proper purpose and whether an obligation to afford procedural fairness existed in relation to a particular compulsory acquisition.

The Lands Acquisition Act 1989 (Cth) created a scheme whereby the Commonwealth was empowered to compulsorily acquire land after completing various pre–acquisition procedures, such as the creation of a declaration and subjecting the decision to merits review by the Administrative Appeals Tribunal. Under s 41, however, the relevant Minister could authorise, by declaration, a compulsory acquisition of land without compliance with the pre–acquisition procedures if a certificate had been issued under s 24 of the Act. Section 24(1)(b) permitted issuance of such a certificate if the Minister was satisfied that ‘there is an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed’. But s 42 prohibited the Minister from making a s 41 declaration if that land was in a public park and the relevant state or territory government had not consented.

On 9 May 2003 the Commonwealth announced its intention to establish a national repository for the disposal of radioactive waste in a remote region of South Australia. Determined to stop the Commonwealth acquiring the land needed for the repository, the South Australian Government introduced the Public Park Bill 2003 (SA) into Parliament on 3 June 2003. The Bill was to create a public park in respect of the land which the Commonwealth sought to acquire. Before the South Australian Parliament could fully consider the Bill, the Commonwealth Minister for Finance and Administration signed a s 24 certificate, stating there was an urgent need to acquire the land, and then signed a s 41 declaration, purporting to compulsorily acquire the relevant land. The Minister admitted that the primary reason for certifying the existence of an ‘urgent necessity’ was to stop South Australia from declaring the land as a public park, which would have frustrated the lengthy investigation process that led to the choosing of that particular area of land as the best site for the repository.

Branson J, with whom Finn and Finkelstein JJ agreed, held the Minister had exercised his power to issue a s 24 certificate for an improper purpose: ‘I do not believe that s 24(1) can be understood to reflect a legislative intent that the power thereby given to the Minister may be exercised for the purpose of preventing s 42 from applying to the acquisition in question’.^[2] Therefore, Branson J concluded, ‘the power conferred on the Minister by s 24(1)(a) of the Lands Acquisition Act was not conferred for the purpose of authorising the Minister to limit or control the operation of s 42 of that Act’.^[3]

Finn J, with whom Branson and Finkelstein JJ agreed, held that the Minister was obliged to afford procedural fairness to South Australia in the circumstances. Although s 24 envisages exclusion of merits review in cases of urgent necessity, Finn J noted:

It is one thing positively to exclude merits review, particularly review of an expansive kind. It is another positively to exclude procedural fairness as such. In many instances adequate procedural fairness falling short of the Act’s merits review system could be afforded an affected landowner within a timeframe that would not occasion delay of such possible length as would be contrary to the public interest.^[4]

Determining the requirements of procedural fairness in this particular case, his Honour stated:

When one has regard to the actual circumstances of the present matter, it cannot properly be said that a situation of such exceptional urgency existed as would justify the reduction of the requirements of procedural fairness to ‘nothingness’.^[5]

Finn J held that at least a ‘truncated’ right to be heard should be afforded, particularly since the rights of people other than the state—a private land holder in the relevant area—could be affected by the acquisition.

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^[1] [2004] FCAFC 164.

^[2] Ibid [65].

^[3] Ibid [69].

^[4] Ibid [110].

^[5] Ibid [115].