The Hon. HENRY TSANG (Parliamentary Secretary) [9.04 p.m.], on behalf of the Hon. John Hatzistergos: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Government is pleased to introduce the Land Acquisition (Just Terms Compensation) Amendment Bill 2009.

The Bill overcomes some unintended consequences of two provisions of the Land Acquisition (Just Terms Compensation) Act, revealed by a recent High Court decision.

It will restore the intended effect of sections 7A and 7B of that Act.

Sections 7A and 7B of the Act deal with the ability of a public authority to acquire and extinguish native title interests, as well as to acquire land already vested in it.

The High Court recently held that an acquisition of a road already vested in a local council was being done under section 7B of the Land Acquisition (Just Terms Compensation) Act, not the Local Government Act.

It was never intended that sections 7A or 7B would establish a separate legal authority for acquiring these types of property interests in such circumstances. The policy intention of these sections is only to extend or limit—as the case may be—the rights of public authorities to acquire land where those rights are already established by other legislation.

It was not intended, for example, that local councils could acquire native title interests under section 7A without reference to the powers and processes—such as the need for prior Ministerial consent to land acquisition—contained in the Local Government Act.

It was also not intended, for example, that a State government authority would be able to acquire its own land under section 7B, with no reference to the limits on land acquisition imposed by that authority's parent legislation.

This unsatisfactory situation is overcome by this Bill.

Clause 1 of the Bill clarifies that any acquisitions of native title or property already vested in a public authority are always taken to be an acquisition under other legislation empowering the authority to acquire land.

This will ensure that public authorities, including councils, follow any mandatory processes set out in their parent legislation.

Clause 3 ensures that any past acquisitions of a public authority's own land or native title interests are also taken to be acquisitions under the "parent" legislation, not the Land Acquisition (Just Terms Compensation) Act.

This is necessary to ensure certainty of land tenure, not only for public authorities but for any third parties who might have subsequently bought or leased land that would have been affected by the High Court's decision.

The retrospective application of the Bill will not, of course, extend to any acquisition of native title interests that might have occurred contrary to any general, mandatory requirements regarding land acquisition in the parent legislation.

Although it is very unlikely there are any such cases, it is necessary to ensure constitutional validity that acquisition of native title and other interests in land occur in a non-discriminatory way.

It is also important to note that the Bill is not designed to extend the powers of councils to acquire land already vested in them. The intention of the amendments is to ensure the Land Acquisition (Just Terms Compensation) Act operates in the way it had been understood to operate prior to the High Court's recent decision in the Fazzolari appeal.

The Bill does not have any impact on the compulsory acquisition notices issued by Parramatta City Council that were the subject of the High Court litigation. The High Court has found those particular notices to be unlawful and this Bill will not change that.

It is a matter for the Council whether it wishes to take any further acquisition action in relation to those particular properties.

The focus of the Bill is to overcome an aspect of the High Court's decision that the Government considers may produce anomalous and unintended consequences for land owners, native title holders and public authorities alike.

It achieves that purpose in a clear, concise and proportionate manner.

I commend the Bill to the House.

The Hon. GREG PEARCE [9.05 p.m.]: The purpose of the Land Acquisition (Just Terms Compensation) Amendment Bill 2009 is to overcome unintended consequences of the Land Acquisition (Just Terms Compensation) Act, which were revealed by the April 2009 High Court decision in R & R Fazzolari Pty Ltd v Parramatta City Council, which in part found a new power of compulsory acquisition to exist under section 7B of that Act, which had not been intended to create such a separate power. One of the concerns we have had in approaching this bill is that it seems also to create uncertainty and unintended consequences in relation to the exercise of compulsory acquisition powers. I will come back to that in due course.

State authorities are given the power to compulsorily acquire land for various public purposes under various Acts. These conferring Acts set out the conditions and other rights and obligations of the compulsory acquisitions. The Land Acquisition (Just Terms Compensation) Act sets out the acquisition and compensation process. The Act was amended in 1994 by including a provision under section 7A to also acquire native title rights at the same time as acquiring land, and section 7B to clarify that councils may acquire land under the Local Government Act even though the land is already vested in the council. The Local Government Act 1993 provides in section 186 (1) the power permitting a council to acquire land for the purpose of exercising any of its functions without the consent of the owners, but not if the land is being acquired for the purpose of resale unless that land adjoins, or is in the vicinity of, land acquired for a purpose other than resale.

Fazzolari's case involved an attempt to compulsorily acquire several properties by Parramatta City Council in relation to a development to be called Civic Place. The redevelopment was to be carried out under a public-private partnership between the council and Grocon under which the council would transfer compulsorily acquired land to Grocon and receive financial payments in return. Ultimately, the High Court overturned the acquisition as it held the proposed acquisition was for the purpose of resale to Grocon and the owners had not consented. This is consistent with the principle that such powers should be permitted only to the extent that least interferes with private property rights.

The bill does not impact on the compulsory acquisition notices issued by Parramatta City Council that were the subject of the High Court litigation as they remain unlawful. The bill also does not extend the powers of councils to acquire land already vested in them. However, some strenuous concerns have been expressed in relation to the possible effect of the draft bill as it was presented. The legislation package dealing with compulsory acquisition is somewhat fragmented and there certainly is a view that it should be comprehensively reviewed to ensure its clarity and that there are no other anomalies, and also to look at what is meant by "just terms". One of the issues raised by a number of commentators and parties is the concern that landowners should be compensated for the gain in value of land that is subsequently redeveloped.

The principle of protection of private property rights while providing appropriate power to compulsorily acquire land for public purposes is one that we accept. The concerns that were expressed in relation to the legislation as it was drafted were summarised by a number of parties, including the Property Council and the Law Society's property committee. I am grateful to the Law Society's property committee, which concluded that it would not support the bill as it stands. It said that whether or not the concerns expressed about the bill were accepted, the committee considered the bill did not in fact do what the explanatory notes implied it was designed to do—and that was address the issues raised in the High Court case. The Opposition will move an amendment in Committee that directly addresses the concerns that have been raised. We believe the Government will accept the amendment and, if that is the case, we will be prepared to support the bill.

Ms SYLVIA HALE [9.10 p.m.]: I lead for the Greens on the Land Acquisition (Just Terms Compensation) Amendment Bill 2009. I will refer to the implications of the bill with regard to property rights and the acquisition of land by councils and government authorities, and my colleague Ian Cohen will address the native title implications. The Greens oppose the bill. It is clear that the purpose of the bill is to overcome problems created for Parramatta City Council and its development partner Grocon that arise from the decision of the High Court in R & R Fazzolari Pty Ltd v Parramatta City Council and Mac's Pty Limited v Parramatta City Council, handed down on 2 April 2009. In speaking to this bill in the lower House the shadow Minister for Planning read detailed legal advice outlining that the impact of the quite technical amendments contained in the bill is to allow Parramatta City Council to compulsorily acquire its own roads and then compulsorily buy the adjacent land owned by Fazzolari and Mac's and to transfer that land to its joint venture development partner and sell the land for a profit. I have also been provided with a copy of that legal advice, copies of statements issued by Parramatta City Council, and the Law Society advice referred to by the previous speaker.

I have no doubt that the purpose of this bill is to overcome the restrictions placed by the High Court on the ability of the council to compulsorily acquire the contested properties. The council and its private joint venture development partner, Grocon, will be the beneficiaries of this bill. The bill will not merely affect Parramatta City Council and this specific development; it will also significantly extend the power of all councils to compulsorily acquire their own roads and then use the powers given to them by this bill to compulsorily acquire land that forms part of, adjoins or lies in the vicinity of those roads. The Government's assertions that this bill is merely about clarifying the original intent of the Act and that it will not affect the Parramatta City Council development are at best disingenuous.

This is not the first time the Government has attempted to provide legislative assistance to Parramatta City Council to compulsorily acquire these properties. The former Minister for Planning sought to include an enabling provision in the Environmental Planning and Assessment Amendment Bill 2008, but withdrew it in the face of significant public concern and likely opposition in this House. The Greens support local councils and government agencies having the power to compulsorily acquire private property on just terms for not-for-profit community purposes. However, we do not support extending that power to acquire land when the purpose is to facilitate private commercial development projects. The Greens do not oppose the renewal of the precinct at Parramatta, which is the subject of this development. However, it is being developed as a public-private partnership between the council and a private developer, Grocon. It is a commercial development that will deliver significant profits to the proponents.

If a developer needs to acquire private property for a commercial project, the developer must reach an agreed price with the landowner. Neither a local council nor the Government should intervene to the benefit of the developer, especially if the council or the Government is a partner with the developer in the project. That is particularly so in an environment in which developers donate millions of dollars to political parties. In that context, it should be noted that Grocon—the private development partner in the Parramatta development—is likely to gain a significant financial benefit if the disputed properties are acquired compulsorily rather than by negotiation. Grocon is a major political donor, having donated more than $320,000 to the New South Wales Labor Party.

If a matter such as this came before a local council, the code of conduct would require all Labor councillors to declare a conflict of interest because of Grocon's political donations and refrain from voting. Yet, having searched the contributions to this debate made by Labor Party members, nowhere did I find a declaration of the Grocon donations, despite the fact that Grocon will be a significant beneficiary of the bill. Why are State parliamentarians not kept to the same standards as local councillors? In light of those donations, compounded by the failure of Labor members to disclose them during the debate, the public has the right to ask in whose interest the Government is acting in introducing this bill. The development process in New South Wales is already corrupted by the ability of cashed-up developers to get around planning rules. This bill will simply extend the bias in favour of those developers and will further undermine public faith in the New South Wales planning system. The Greens oppose the bill.

Mr IAN COHEN [9.14 p.m.]: As my colleague Ms Sylvia Hale has clearly indicated, the Greens do not support the Land Acquisition (Just Terms Compensation) Amendment Bill 2009. Ms Hale has outlined a number of issues related to the expansion of local government compulsory acquisition powers and I will restrict my contribution to the amendments dealing with compulsory acquisition of native title rights. I know that many people have struggled to understand this bill and the technical and legal nuances inherent in these amendments. That might be because we are dealing with some legal fictions of the highest order. It could be helpful to consider compulsory acquisition under the Australian Constitution as a comparative framework for understanding compulsory acquisition by State and local government authorities. Under section 51 (31) of the Australian Constitution, the Federal Government can make laws for the "acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws". This head of power under the Australian Constitution represents the central legislative power to make laws or regulatory instruments to acquire property.

In High Court compulsory acquisition case law there is often a question of characterisation—that is, what is the true source of legal authority to acquire property? When I say "characterisation", I am referring to the process of interpreting a compulsory acquisition of property and under what legal authority it occurs when there are multiple legal authorities under which to acquire. That was certainly a point of view considered in the famous Tasmanian dams case. The High Court has developed a doctrine that permits the Commonwealth to acquire property solely by reference to another head of power in section 51 of the Constitution—for example, the corporations power, the trade and commerce power or the external affairs power. Where acquiring property can be supported exclusively under another head of power—for example, the corporations power—the requirement for acquisition on just terms, consistent with section 51 (31) of the Constitution, is not mandatory. Characterisation is important in compulsory acquisition cases because it sets out the terms and grounds upon which private property rights can be resumed by a government authority.

In a similar way, we have an issue of characterisation in relation to this bill. Implications flow from characterising compulsory acquisition. Legal authorisation for compulsory acquisition under multiple Acts poses challenges to characterisations. The Government has indicated that the High Court decision in R & R Fazzolari Pty Ltd v Parramatta City Council and Mac's Pty Limited v Parramatta City Council is contrary to the policy intentions of sections 7A and 7B of the Land Acquisition (Just Terms Compensation) Act. In relation to section 7A, the current legislation is the result of an amendment under schedule 3 of the Native Title (New South Wales) Amendment Act 1998. No statement about the policy intention of section 7A was made in the second reading speech, and the explanatory memorandum simply states that the purpose of the amendment, which adds subsection (2) to section 7A, was "to ensure that the relevant procedures for acquiring native title rights and interests under the Commonwealth Act can be complied with". I am not sure where the Government finds support for the contention that the High Court decision is contrary to the initial policy intention of section 7A. Perhaps the Parliamentary Secretary or Minister can elaborate.

I will deal specifically with the Government's explanation of, and justification for, the bill. The aim of this legislation as expressed by the Government is to remove a separate legal authority under section 7A of the Land Acquisition (Just Terms Compensation) Act for acquiring native title rights. The primary authority for acquiring native title rights is contained in the Commonwealth Native Title Act. Existing section 7A (2) of the Land Acquisition (Just Terms Compensation) Act holds that any State Government authority acquiring native title rights is authorised to comply with the relevant procedures under the Commonwealth Native Title Act for a valid acquisition.

The proposed amendment will mean that the compulsory acquisition of native title rights will not be undertaken under section 7A of the land acquisition Act. I would greatly appreciate it if the Parliamentary Secretary, in reply, could explain the practical difference between the compulsory acquisition of native title processes under the Land Acquisition (Just Terms Compensation) Act compared with the processes under the Commonwealth Native Title Act. There are important legal implications from the compulsory acquisition forum as the rules of acquisition, including purpose and process of acquisition, vary significantly.

I am not the only one interested in the Government's justification for and understanding of these reforms. I find it particularly strange that such a complicated and legally technical bill was not put out as an exposure draft—a procedure to which the Minister for the Environment and her department usually adhere and which is appreciated, especially in light of the fact that other departments never extend such a basic courtesy to the public. My office has spoken to a number of groups that have said it would take a significant amount of time to understand the full implication of the bill as it relates to compulsory acquisition. Due to the lack of an exposure draft, many groups with policy interests in this legislation have not had an opportunity to comment on it.

The NTSCORP, which was previously known as the New South Wales Native Title Service, was appointed to perform the functions of a native title representative body. It maintains a commitment to securing recognition of native title rights and the interests of traditional owners throughout New South Wales and the Australian Capital Territory. My office contacted NTSCORP to seek its preliminary opinion on amendments to the compulsory acquisition of native title rights. NTSCORP's chief executive officer, Warren Mundine, issued a media release dated 3 June 2009 entitled "Mundine concerned at NSW Government's cavalier approach to Indigenous issues". That media release states:

Indigenous leader and head of NTSCORP, (the native title service provider for NSW and the ACT) Warren Mundine today expressed his deep concern with the State Government's approach to passing proposed amendments to the Land Acquisition (Just Terms Compensation) Act 1991.

Mr Mundine said that NTSCORP which provides services and advice to native title claimants across NSW had received no notification of the proposed changes which could have a significant effect on Native Title rights in NSW.

"We are currently seeking further legal advice on the matter, but at this stage we are very concerned about the effects that these changes might have on native title rights in this state," Mr Mundine said.

"We're also angry the State Government didn't see fit to brief any Indigenous groups about their proposal. We weren't even so much as notified that this was coming up."

"The NSW Government needs to wake up and stop this cavalier approach to Indigenous issues. It's time that they showed a more serious approach to supporting fairness and efficiency in Native Title, this could start with consultation" Mr Mundine concluded.

The fact that New South Wales Government failed to consult with NTSCORP reveals the integrity behind the introduction of the bill. NTSCORP said to staff in my office that it would need much more time to consider fully the implications of the native title bill. The Government probably needs more time to consider the implications of the bill rather than cobbling together something vaguely related to native title to cover up more contentious elements. It is unclear whether the Government reviewed each of the authorities that presently have the right to acquire land and waters compulsorily and, consequently, native title rights and interests, and whether amendments to the parent legislation is required, in particular, to ensure that the acquisition is in accordance with the proposed bill, and to ensure that there are no conflicts with the processes outlined in the bill, the Commonwealth Native Title Act, and the Native Title Act (NSW) 1994.

The most worrying aspect of this bill is that the Government does not really know its true implications, nor has it explained them in a clear and coherent manner. This type of legislation is dangerous. If the Government has legitimate concerns about the compulsory acquisition of native title rights I call on it to engage with those affected by the changes. Often we hear the rhetoric "true partnership with Aboriginal people" emanating from the mouths of members in this House. Although I do not doubt the sincerity with which some members believe that ideal, bills such as this, however, show how readily that principle is discarded. If Labor members want to come into the House and talk about a "true partnership with Aboriginal people", perhaps they should start by ensuring their party gets the basics right. I am greatly disappointed about the lack of consultation on this bill relating to native title rights. Because of that matter and the matters raised earlier by Ms Sylvia Hale, the Greens strongly oppose this bill.

The Hon. ROBERT BROWN [9.25 p.m.]: When I first entered this Chamber tonight I was of a mind to let the House know that the Shooters Party would be voting against the Land Acquisition (Just Terms Compensation) Amendment Bill 2009.

The PRESIDENT: Order! Members should allow the debate to continue with some decorum.

The Hon. ROBERT BROWN: We have received representations from the property owners affected by the Parramatta council decision, which is the subject of a recent High Court ruling. This legislation, in a different guise, originally formed part of a bill introduced by the former Minister for Planning, Frank Sartor, in the other place. At the time we convinced the Minister for Planning that he should remove it from the bill. Much water has since gone under the bridge. We have received representations from the urban task force, which is opposed to the bill. We have received written representations from the Law Society of New South Wales, which also opposes the bill in its current form.

Opposition and Government members have informed me that an amendment will be moved in Committee. It appears as though that amendment will do what the Government wants to do, but it will protect the interests of the test case—Mac's Pty Ltd and Fazzolari of Parramatta. In order to ensure that members understand what this case is about, these people own property that is currently zoned for two-storey development. When an offer is made to them—I point out that an offer has not been made to both parties; the developer made an offer to only one party in 2004—it is made on the basis that the land is worth the current market value for two-storey development. However, this land will become part of a much larger development. The true value of this land would be much greater than it would be worth if these proponents lost their case in the High Court, or this legislation went through unamended. I am not a lawyer, so I am taking the word of the Hon. Greg Pearce, who will move this amendment in Committee, that this amendment will fix the problem.

The Hon. Greg Pearce: I have been relying on the parliamentary draftsperson.

The Hon. ROBERT BROWN: The Hon. Greg Pearce said he was relying on the parliamentary draftsperson. After inspecting the amendment, I am sure it will fix the problem. The Government has assured me that it believes that to be the case and that it will support the amendment. I hope everybody has told us the truth tonight. If this amendment is agreed to, the Shooters Party will probably vote for the amended bill.

Reverend the Hon. FRED NILE [9.28 p.m.]: The position of the Christian Democratic Party is similar to the position taken by the Shooters Party. We have all had meetings with Michael Winston-Smith and with Ray Fazzolari—the owners of the properties in question affected by Grocon's plan to build a huge civic centre at Parramatta. I do not think anyone would object to the project. From every point of view such a project would be of tremendous value and a valuable asset to Parramatta, its residents, to Sydney, to New South Wales and to Australia. However, the developers, Grocon, have tried to avoid dealing with the owners of these two properties and have sought to gain control of the properties by working through Parramatta council.

Maybe Parramatta council proposed that strategy. We are not sure of its origin, but it is the developer or the council. It may be that the council has been pursuing the strategy as a simple way of finalising the whole project. We can understand the council wants to simplify the procedure as much as it can. The owners have objected to the compulsory acquisition of their properties. Grocon has avoided, as far as I can gather from discussions we have had with the owners, any direct negotiation with them. They have been put outside the negotiating circle, so to speak, and Grocon has been dealing only with the council. I believe it is right and proper for Grocon now to speak to the owners, to have direct negotiations and to come to some business arrangement with them where they are happy with the outcome.

I gather from discussions I have had with them that it is not simply the amount of money that is in question; they would like to retain the right to the sites as part of the new development. It may still be a large high-rise civic centre but they would like the same site areas within the development as the blocks they have allocated to them. I do not see why that would be such a problem. To me, for Grocon to go ahead with the project, which involves hundreds of millions of dollars, it seems to be a simple solution. There may be some problem with ownership of land within the development—obviously it is complicated—but it may be possible to have a 99-year lease on their sites. That is my suggestion; it has not come from the owners. They are the areas that have to be negotiated.

These owners took the matter right to the High Court and the High Court decided that the Parramatta City Council's compulsory acquisition of the two properties within the Parramatta central business district, without the owners' consent, was unlawful. However, one aspect of the High Court decision had the unexpected consequence of enabling public authorities to acquire land and extinguish native title using the Land Acquisition (Just Terms Compensation) Act, the land acquisition Act, possibly without complying with any requirements under the Local Government Act. Whether or not that is the case, the Government's argument for this bill is that it is simply dealing with an anomaly that has occurred with native title land. But the owners of the two properties believe there is a hidden motive, that this bill was to overcome the High Court decision and allow the Parramatta City Council to proceed with the acquisition of their properties. Whether that is the intention of the Government—it says it is not—the owners are suspicious and believe that is the aim of the legislation.

I have just received an email from Michael Winston-Smith—it has just come to me on my BlackBerry—in which the owners state again, in as clear and unequivocal language as I can use, that this particular legislation targets property rights and gives councils more power than they have now to compulsorily acquire property and on sell it to developers for a profit. He goes on to quote the legal opinion of Bret Walker, SC, who he says is one of the greatest legal minds in Australia today:

Consequences of this legislation, the bill before the house.

These amendments will allow councils to "compulsorily" fictitiously buy up their own roads, and then compulsorily really buy up a private owners adjacent land, transfer that adjacent land to a joint-venture partner (i.e. a private developer) pursuant to a Public Private Partnership, and thus sell it at a profit.

They claim that this is Bret Walker's advice and I have no reason to question that. That is why they are suspicious about the legislation. I have strong reservations about supporting the legislation, but now the Coalition has been able to come forward with this amendment. We have had two drafts of it, but the final draft is the same basic content. It states:

Restriction on compulsory acquisition of land by councils for re-saleRestriction on compulsory acquisition of land by councils for re-sale

Before approval is given to the acquisition of land by a council for the purposes of resale without the owner's approval because of an acquisition at the same time of other land vested in the council as referred to in section 188 (2) (a) of the Local Government Act 1993, the council must provide a written explanation to the Minister administering that Act as to the purpose (not being the purpose of resale) for which the other land vested in the council is being wholly or partly compulsorily acquired.Before approval is given to the acquisition of land by a council for the purposes of resale without the owner's approval because of an acquisition at the same time of other land vested in the council as referred to in section 188 (2) (a) of the Local Government Act 1993, the council must provide a written explanation to the Minister administering that Act as to the purpose (not being the purpose of resale) for which the other land vested in the council is being wholly or partly compulsorily acquired.

I understand that the owners of the property confirmed that they accept their legal advice that this provides the protection they require. I am not a lawyer and I still have doubts whether that is the case. This amendment simply requires the council to give a written explanation to the Minister. It could certainly give a written explanation as to why it has acquired land and it can state it is for resale to the developer. In other words, it provides the facts, but do the facts stop the event occurring? The Coalition believes it stops the compulsory acquisition occurring. That may have to be tested in court if there is some doubt as to the impact of this amendment. We have only just received the amendment and we have not been able to get any legal advice on it.

The bill is clear and the legal advice is that the bill would have allowed the Parramatta City Council to proceed with the compulsory acquisition of those two properties. It is claimed the amendment will stop that happening. If that is the case—and I can only accept the advice I have been given—we can support the bill, but the amendment must be carried in Committee. If it is not, we will have to vote against the bill on the third reading.

The Hon. HENRY TSANG (Parliamentary Secretary) [9.37 p.m.], in reply: I thank honourable members for their contributions to the Land Acquisition (Just Terms Compensation) Amendment Bill 2009. Perhaps I can address firstly the question asked by the Shooters Party—that is, will these changes allow Parramatta City Council to acquire privately owned land without the owner's consent? The bill does not change the High Court's ruling that the acquisition notices in the Parramatta case were unlawful. That particular acquisition process cannot continue. Clause 4 of the bill makes that abundantly clear. The bill's main purpose is fixing an unexpected consequence of the High Court's decision for native title and land acquisitions by other public authorities.

However, as a result of fixing these unexpected consequences, Parramatta City Council could also choose to start a new compulsory acquisition process in relation to the same land. If the council chooses to take that action, it will be subject to the Local Government Act and the just terms compensation regime as it was always understood to apply prior to the High Court's decision. The outcome of that process may well be different. Any new acquisition process initiated by the council could not fail for exactly the same reasons relied upon by the High Court. But the right to challenge the legality of such a process through the court remains.

Ms Hale and Mr Cohen suggested that a power to acquire privately owned land should be exercised only by a public authority for the public good. Other members, including Reverend the Hon. Fred Nile and the Hon. Robert Brown, emphasised the importance of fair compensation for the owners of the private land acquired by the compulsory process. The Government agrees that these are valid considerations. However, this bill does not undermine the legislative scheme that ensures fair compensation, which has operated successfully in New South Wales for many years. As the Minister noted in her reply in the other place, the power of a public authority to acquire its own land is a longstanding and important way that authorities ensure public land can be put to the best possible use for the local community. It is not a fictitious or backdoor means of gaining access to other privately owned land. It is a power used regularly by councils to undertake all sorts of projects related to their functions.

The Government is confident that the bill did not go further than intended, as suggested by the Hon. Greg Pearce. The Government remains satisfied that the Local Government Act is unambiguous: councils can acquire land only for a purpose related to the exercise of a council function. Nonetheless, the agreed amendment will make councils' obligations crystal clear. The Government agreed to this amendment because it is vital that the scope of a public authority's powers to acquire native title interests is clarified by the bill, regardless of one's views about the Civic Place project in Parramatta. Mr Cohen asked also for further clarification in relation to native title. The bill supports the original policy intention of section 7A that acquisitions of native title interests must occur for constitutional reasons in the same way required of other interests in land. In so doing the bill ensures no ongoing uncertainty about the status of land transactions involving public authorities in New South Wales. The bill does this without affecting the rights of private landowners to just compensation. I commend the bill to the House.

Question—That this bill be now read a second time—put.

The House divided.

Mr Catanzariti Mr Clarke Mr Colless Ms Fazio Ms Ficarra Miss Gardiner Mr Gay Ms Griffin Mr Khan

Mr Lynn Mr Mason-Cox Reverend Nile Ms Parker Mrs Pavey Mr Pearce Ms Robertson Ms Sharpe Mr Tsang

Mr Veitch Ms Voltz Mr West Ms Westwood Tellers, Mr Donnelly Mr Harwin

Mr Cohen Ms Hale Dr Kaye Reverend Dr Moyes Mr Smith Tellers, Mr Brown Ms Rhiannon

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time.


Clauses 1 and 2 agreed to.

The Hon. GREG PEARCE [9.51 p.m.]: I move:

No. 1 Page 4, schedule 1. Insert after line 11:

5 Restriction on compulsory acquisition of land by councils for resale5 Restriction on compulsory acquisition of land by councils for resale

Before approval is given to the acquisition of land by a council for the purposes of resale without the owner's approval because of an acquisition at the same time of other land vested in the council as referred to in section 188 (2) (a) of the Local Government Act 1993, the council must provide a written explanation to the Minister administering that Act as to the purpose (not being the purpose of resale) for which the other land vested in the council is being wholly or partly compulsorily acquired.

I make it absolutely clear to all members and those who might read this debate that the Liberals-Nationals Coalition was very concerned about this legislation as it was originally presented to the Chamber and about the issues affecting private property that were identified by various parties. We were so concerned that we resolved to oppose the bill if it was put forward in its current form. We indicated that to the Government, which led to the Government initially delaying presentation of the bill to the Chamber. We at all times supported correction of the anomaly that may apply to native title. We support dealing with the legislation now primarily to remove that anomaly but also to try to rectify the other issues that were identified and were of great concern to the Coalition.

In the intervening period, thanks to my colleague the member for Terrigal, Mr Chris Hartcher, who sought to find a resolution to the concerns raised and which we share, this amendment has been drafted by Parliamentary Counsel to correct issues identified in the debate by Ms Sylvia Hale and other speakers. Unfortunately, the amendment has come forward only in the past couple of hours so there has not been a great deal of time to discuss it, but that is the purpose of the Committee stage.

We are dealing with complex legislation. It was convoluted and the decisions involved made it even more difficult because of the anomalies. Frankly, at some point in time we have to rely on Parliamentary Counsel to do what we asked—that is, to draft an amendment that would deal with the problem that if a council used its power to acquire a road vested in it and also acquired adjoining land without an owner's consent it could only do so if there was a proper public purpose. It cannot do so if the purpose is resale. I understand that Parliamentary Counsel has addressed the problem that was identified and was of concern to us. On that basis I moved the amendment to try to resolve the problem and ensure the sanctity of private property while at the same time not having a situation where there are anomalies and uncertainty in the legislation.

Unfortunately, Parliamentary Counsel has a fairly arcane style and the matter is complex. However, at some point in time either we stop second-guessing Parliamentary Counsel and expect the office to deliver or we do not. The Coalition has accepted this is the result of our request, and I have plainly said what that is. I moved the amendment to resolve the matter, remove uncertainty and ensure that we can all go forward.

Ms SYLVIA HALE [9.55 p.m.]: There has barely been a speaker in this debate who has not referred to the amendment and said, "We will take on trust that the amendment does what supposedly the Government and Greg Pearce have agreed that it does." No-one has had the opportunity to read it in any depth. The first many members knew of the amendment was when they walked into the Chamber. It may have been some sort of comfortable deal behind closed doors but, as my colleague Ian Cohen outlined, there has been a complete failure to consult those people with an ongoing interest in native title issues and now there is a complete failure to consult with members of this Chamber on the issue.

We are being asked to accept an amendment that, on face value, does none of the things it purports to do. It merely suggests that the council must provide a written explanation to the Minister administering the Act as to the purpose, not being for the purposes of resale for which the other land vested in the council is being wholly or partly compulsorily acquired. It does not say the Minister has to take any notice of the reason, no matter how feeble it may be. It does not in any way restrain the council from acting. It may well be that the amendment does do as has been suggested, but we have not have had advice from anyone who is particularly skilled on this issue. All the advice we have received, whether it is advice from Bret Walker, the Law Society or Hunt and Hunt, is that this is a bad bill that should be opposed.

I do not think we should act in ignorance. We should take the opportunity to be informed before we vote through legislation that has fundamental repercussions for many people in this State. The Greens do not oppose the compulsory acquisition of land provided it is for a community purpose. We do oppose compulsorily acquiring land for a commercial purpose that would enable the on sale of that land to interests such as the Grocon Corporation, which stands to profit very handsomely should the bill be passed. There can be no reason why we should not defer further consideration of this bill until the next sitting day, that is, next Tuesday. The sky will not collapse in the intervening four or five days. For that reason I move:

That Madam Chair do now leave the chair, report progress and seek leave to sit again on the next sitting day.

The CHAIR (The Hon. Amanda Fazio): Order! The motion moved by Ms Hale is in order. In accordance with Standing Order 173 (6), the motion must be moved without debate and immediately put and determined, and it cannot be repeated within 15 minutes.

Question—That the Chair report progress and seek leave to sit again—put.

The Committee divided.
Question resolved in the negative.

Motion that the Chair report progress and seek leave to sit again negatived.

The Hon. ROBERT BROWN [10.06 p.m.]: Ms Sylvia Hale was quite right to try to have the debate adjourned. When I walked into the Chamber, I held one view; but after examining the amendment, I had a different view. I have had a chat with my colleague who, like me, is not a lawyer. In my view, the amendment does not fix the problem. It may be a valiant attempt and I applaud the Coalition for trying to come to some type of resolution, but I want every member of this place to understand that, when this legislation is passed, they will have created a situation of untold inequity. I am afraid that my colleague and I cannot support the amendment.

The Hon. HENRY TSANG (Parliamentary Secretary) [10.07 p.m.]: The Government supports the amendment. The Government remains satisfied that the Local Government Act is unambiguous. Councils may acquire land only for a purpose that is related to the exercise of a council's function. Nevertheless, the amendment is supported because it simply makes the obligations of councils in this regard crystal clear. The Government supports the amendment because it is vital that the scope of a public authority's power to acquire native title interests is clarified by the bill as soon as possible.

Dr JOHN KAYE [10.08 p.m.]: When is black white, and when is white black? The answer is: when it is legislation, and when legislation states very clearly that the only requirement is that a local authority write to the Minister and tell the Minister why it is taking action. We are told that Parliamentary Counsel has informed the Opposition that the provision means something completely different and it does not mean what it states on the face of it at all.

The legislation creates a whole range of protections whereas on the face of what we have been presented with, the only way it can be interpreted is that all a local council needs to do is write to the Minister. It does not say anything about the requisite quality of the explanation or anything about the Minister needing to assess the explanation. It does not give the Minister any powers to override any requirement or to override the council's decision. Therefore, it is almost impossible to believe that this is anything other than a piece of wallpaper—a very thin piece of wallpaper—to cover a massive crack in the legislation and allow the Opposition to vote for a bill that it knows is wrong. One cannot help but think: What would Bob Menzies think of the Opposition in this situation? What would the founders of the Liberal Party think of a party that was busy trying to take away the private property rights of small property owners and hand them over to the large developers? If members were serious about believing this, my colleague's motion to delay consideration of the bill until tomorrow or until next Tuesday, during which time we could obtain independent legal advice, would have been supported. If there were any sense in which this were serious—and that was a test for the Opposition—

The CHAIR (The Hon. Amanda Fazio): Order! I remind Dr John Kaye that he should not canvass a decision of the House.

Dr JOHN KAYE: Thank you for your guidance, Madam Chair. I was not canvassing the decision of the House; I was pointing out an implication of the decision of the House. An implication of the Opposition's vote is that it is not really serious about this at all. This amendment simply creates an opportunity for the Opposition to vote for the legislation. It is a very small fig leaf that Opposition members can wear to disguise the fact that they are voting for legislation that they know is wrong and that they know runs counter not only to the principles of their party but to the principles of decency and fairness.

What Opposition members are doing is what large parties have done in this Parliament for far too long: they are delivering for the large property developers. This is a shameful situation. We are told that the amendment means something completely different from what it says. We are supposed to take that on good faith. We are told that on those grounds this legislation, which a minute ago was the worst thing possible, is now quite okay. It is just not acceptable. It is not a sensible way to make policy decisions. It is not sensible to make law on the basis of being told: We were told by somebody that this amendment would have an implication that was completely different from what the amendment says in the written word. The Greens cannot do anything but oppose not only the amendment but also the legislation.

The Hon. HENRY TSANG (Parliamentary Secretary) [10.12 p.m.]: In response to the matters raised by Dr John Kaye, the Government expects proposals for urban renewal projects such as the Civic Place redevelopment and the redevelopment of private land by councils and their private sector partners to be subject to a fair and just compensation regime. The bill does not change Government policy regarding land acquisition on just terms. In relation to the specific sections affected by the bill, that policy has operated since the provisions were inserted into the Land Acquisition (Just Terms Compensation) Act and the Local Government Act by the previous Coalition Government in 1994. The bill simply ensures that this longstanding policy is not undone by legal technicalities. The Government therefore supports the amendment.

Reverend the Hon. FRED NILE [10.13 p.m.]: I have already spoken to the amendment. The heading in the amendment reads: "5 Restriction on compulsory acquisition of land by councils for re-sale" and the body of the amendment contains the words "(not being the purpose of resale)". Parliamentary Counsel has advised that that prevents councils compulsorily acquiring the land for resale. If that is the case, I support the amendment.

Ms SYLVIA HALE [10.13 p.m.]: In response to what Reverend Dr Nile—

Reverend the Hon. Fred Nile: There is no "Dr". There are not many doctors who are genuine in this place.

Ms SYLVIA HALE: Many people may also observe there are not many honourable people in this place. Returning to the serious matter of this debate, it was clear in the case before the High Court that Parramatta council argued that one of the purposes for which it was acting was a broader public purpose of facilitating the construction of the Parramatta centre. The High Court disagreed with that. It said that whichever complexion one puts on it—regardless of whether it was the primary purpose, a secondary purpose, or even a predominant purpose—it boiled down to a question of resale.

It seems to me that if one takes the amendment at face value, the council is simply required to supply to the Minister a reason as to the purpose. It seems to me that any council could come up with a whole host of reasons separate from the purpose of resale. However, when it comes to the crux of the matter, that could well have been the principal object, even though the council may have come up with a whole variety of other justifications for it.

The Hon. Robert Brown: As did Parramatta council.

Ms SYLVIA HALE: I acknowledge the interjection by the Hon. Robert Brown that indeed this is what Parramatta council argued primarily in its court case. It may well be that Parliamentary Counsel is right, and that the Opposition and the Government are right: this amendment overcomes the problems that everybody else has with the Act and it is absolutely urgent that we push it through because we must preserve the sanctity of native title.

The Hon. Trevor Khan: Have a look at the decision again, Sylvia.

Ms SYLVIA HALE: I am not canvassing the decision. I am saying, as is perfectly clear from the contribution made by my colleague Mr Ian Cohen, that the Government did not even bother to consult with the relevant interest groups on the native title aspects of the legislation; the Government singularly failed to consult on it. That is what I think the letter from Warren Mundine that my colleague produced made perfectly clear. If the Government did not have the time to consult with those people, obviously it has not had the time to consult with the Law Society, and obviously it has not had the time to talk to, say, Bret Walker. But somehow we are all expected to take this on trust.

Either one ascribes to the Opposition that it is incredibly naive, that it is incredibly trusting of the Government, or it has done some sort of sleazy deal—in the expectation that when it comes to power as an alternative government it will be able to come to some sort of cosy deal with major developers such as Grocon, who are equally happy to donate to the coffers of the Liberal Party as they are to donate to the coffers of the Labor Party.

Question—That the Opposition amendment be agreed to—put.

The Committee divided.

Question resolved in the affirmative.

Opposition amendment agreed to.

Schedule 1 as amended agreed to.

Title agreed to.

Bill reported from Committee with an amendment.


Motion by the Hon. Henry Tsang agreed to:

That the report be adopted.

Report adopted.


The Hon. HENRY TSANG (Parliamentary Secretary) [10.26 p.m.]: I move:

That this bill be now read a third time.

Question put.

Division called for and Standing Order 114 (4) applied.

The House divided.

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendment.