New Lands Acquisition Regulations 2017 (Cth) Notified

Tuesday 5 December 2017 @ 10.16 a.m. | Legal Research

Last Friday, 1 December 2017, the Minister for Finance for the Australian Commonwealth registered the Lands Acquisition Regulations 2017 (the “Regulation”). This regulation is made under section 140 of the Lands Acquisition Act 1989 (the “Act”) to replace the Lands Acquisition Regulations 1989 (the “1989 Regulations”) which expire on 1 April 2018.

The Act

The Lands Acquisition Act 1989 was made under section 51(xxxi) of the Constitution. This section provides that:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: […]

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;…”

Therefore, the Act prescribes the legislative framework “for the acquisition of interests in land by the Commonwealth and Commonwealth authorities, both by agreement and by compulsion. The Act also contains certain provisions relating to the disposal of interests in land owned by the Commonwealth and Commonwealth authorities.”

Review of the 1989 Regulations

The new Lands Acquisition Regulations 2017 were formulated after a review of the 1989 regulations. This review found that the prior regulations were largely out of date, extending from the use of terminology concerning interest rates to the list of entities exempt from the legislative framework. As stated in the Explanatory Statement to the new Regulations:

“The list of exempt entities was reviewed, as was the list of particular transactions which were also exempted.  In most cases, the rationale for exemption had expired as either:

  • The entities no longer existed;
  • The entities had been privatised or otherwise sold to the private sector, and so were no longer ‘Commonwealth authorities’, meaning that exemption was unnecessary as the Act no longer applied; or
  • In one case, the exemption itself had expired (this was an acquisition by the Commonwealth of a lease in the Northern Territory - the exemption had ceased by the end of March 2008).”

As such, in formulating the exemptions in the new Regulations, extensive consultations with numerous entities were conducted. These entities included the Australian Government Solicitor, the Department of Defence and Defence Housing Australia, and the Reserve Bank of Australia. Additional consultation was made with the Department responsible for the exempt entities, ensuring that adequate consultation and consent was given. The reviewed exemptions to the regulations were outlined in the explanatory statement:

“The Regulations provide that the following authorities are to be exempt from the Act’s operation:

  • Australian Broadcasting Corporation;
  • Australian Grape and Wine Authority;
  • Australian Maritime Safety Authority;
  • Australian National University;
  • Australian Postal Corporation;
  • Australian Securities and Investments Commission;
  • Indigenous Business Australia;
  • Indigenous Land Corporation;
  • Reserve Bank of Australia; and
  • Special Broadcasting Service Corporation.

In addition, the following categories of transaction are to be exempted:

  • The acquisition by the Commonwealth of an interest in land (other than freehold), from Defence Housing Australia for defence housing purposes; and
  • The disposal by the Commonwealth of an interest in land (other than a freehold), for defence housing purposes.

Each of the exempt entities listed above are independent, in terms of statutory function.  Many also operate, at least in part, on a commercial basis.  Consequently, it has been decided that compliance with the Act is not required, and thus exemption has been granted once more.”

The Lands Acquisition Regulations 2017

The Regulations work to refine and regulate the operation of the Act. Additionally, through the schedules to the Regulation, various other instruments are amended or repealed to allow for the modernisation of the Regulatory framework for lands acquisition by the Commonwealth.

The list of exempt authorities (as above) is outlined in regulation 6; while regulation 7 specifies certain restrictions on the operation of the regulations where Defence Housing Australia or the Australian Defence Force are concerned.

“For the purposes of paragraph 21(1)(b) of the Act, the Act does not apply in relation to the acquisition by the Commonwealth of an interest in land, other than a freehold interest, in circumstances where the acquisition:

(a) is from Defence Housing Australia; and

(b) is for the purpose of providing housing to meet the operational needs of the Australian Defence Force.”

These restrictions are further extended by regulation 10 which states that the “Act does not apply to disposal of certain interests in land by the Commonwealth for defence housing”.

Regulations 8 and 9 deal with the issue of interest payable on compensation, with regulation 8 focussing on interests other than mortgage interests; while regulation 9 specifies interest under Part VIII of the Act.

Regulation 10 then prescribes the new address for providing documents to the Minister of Finance for the purposes of subsection 137(1) of the Act.

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Lands Acquisition Regulations 2017, full text and explanatory statement as published on Timebase LawOne.

Lands Acquisition Regulations 1989, as published on Timebase LawOne.

Lands Acquisition Act 1989, as published on Timebase LawOne.

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