FEDERAL COURT OF AUSTRALIA
State of South Australia v Honourable Peter Slipper MP
[2004] FCAFC 164
SUMMARY
STATE OF SOUTH AUSTRALIA v HONOURABLE PETER SLIPPER MP AND COMMONWEALTH OF AUSTRALIA
S 852 of 2003
MARK MCKENZIE v HONOURABLE PETER SLIPPER MP AND COMMONWEALTH OF AUSTRALIA
S 856 of 2003
BRANSON, FINN and FINKELSTEIN JJ
24 JUNE 2004
ADELAIDE
1. In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today but form no part of the judgment. It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete. The published reasons for judgment and this summary will be available on the internet at www.fedcourt.gov.au.
2. These reasons for judgment concern challenges to the legality of the process by which the Commonwealth sought to acquire, in suggested circumstances of urgency, all of the interests in certain land near Woomera in South Australia. The purpose for which the Commonwealth wished to acquire the land was to allow the establishment of a national repository for the safe disposal of Australia’s low level radioactive waste (‘the national repository’).
3. The issues determined on these appeals concern the proper interpretation of two Acts of the Commonwealth Parliament, the Lands Acquisition Act 1989 and the Native Title Act 1993. The merits of the decision to locate a national repository in the central‑north region of South Australia are not open to be reviewed by the Federal Court. Nothing contained in these reasons for judgment should be understood as reflecting in any way on the merits of that decision. Further, these appeals have been determined on an assumption, adopted by the parties, as what would have been the effect of the enactment by the South Australian Parliament of the Public Park Bill 2003. The Court has not been required to consider the validity of the assumption adopted by the parties.
4. The proposed site for the national repository, and an access corridor to the site, were purportedly acquired by the Commonwealth by compulsory process in reliance on a provision of the Lands Acquisition Act that allows the ordinary notification and review procedures for which the Act provides to be avoided where the relevant Commonwealth Minister is 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 by the need for the making, and the possible reconsideration and review of, a pre‑acquisition declaration.’
5. The ‘urgent necessity’ on which the Commonwealth Minister relied was that if the acquisition of the relevant land did not proceed immediately the land was likely to become a public park. Section 42 of the Lands Acquisition Act has the effect that land that is, or is in, a public park, may not be acquired by compulsory process unless the Government of the State or Territory in which the land is situated agrees. The Commonwealth Minister was satisfied that it would be contrary to the public interest for the acquisition to be delayed to allow normal pre‑acquisition procedures to be followed as, in effect, there had been public disclosure of the Commonwealth’s intentions and the primary concern of the South Australian Government in seeking to have the relevant land declared a public park was to frustrate the Commonwealth’s radioactive waste disposal policy.
6. All three members of the Full Court have taken the view that, on the proper construction of the Lands Acquisition Act, it was not open to the Minister, in the circumstances of this case, to be satisfied that there was ‘an urgent necessity for the acquisition’ or that ‘it would be contrary to the public interest’ for the acquisition to be delayed by reason of the making, and the possible reconsideration and review of, a pre‑acquisition declaration.
7. The Judges have concluded that the Commonwealth Minister’s desire to avoid the operation of s 42 of the Lands Acquisition Act was not a factor which the Lands Acquisition Act intended could constitute an ‘urgent necessity’ for an acquisition. The Judges further concluded that the Lands Acquisition Act does not disclose an intention that the Commonwealth Minister could be satisfied that ‘it would be contrary to the public interest’ for s 42 of that Act to operate according to its terms. The power of acquisition granted to the Commonwealth by the Lands Acquisition Act is part of a statutory scheme that includes s 42. The Full Court has stated that if the Commonwealth Minister takes the view that s 42 gives rise to opportunities for legitimate Commonwealth initiatives to be frustrated, he should invite the Commonwealth Parliament to amend or repeal s 42.
8. Had the Full Court not concluded that the acquisition failed for the reasons outlined above, it would in any event have concluded that the acquisition failed because of denials of procedural fairness to the appellants.
9. The orders of the Full Court have the effect of setting aside the compulsory acquisition of the proposed site for the national repository and the access corridor to that site.
