Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I remain, with all due respect to the minister, unsatisfied by his response. But it leads me to the other aspect of our amendments which I moved together, by leave— amendment (4)—which seeks to make it clear that the Commonwealth is liable to pay compensation on ‘just terms’. Clause 60 of the bill, paragraph 2, says:

However, if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on ‘just terms’, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

Putting away the ‘reasonable amount of compensation’ argument for the moment, there are two hurdles here. The second hurdle is that it says ‘only if that part of the Constitution applies’ which leaves open the question of whether it applies. I understand that this is driven by an argument that has been raging about whether the section of the Constitution about ‘just terms’ compensation actually applies in the territories as well as the states and I am equally as qualified as Senator Scullion to offer a legal opinion on this, so we will operate on the same level. I made the mistake of marrying a lawyer, so I have not won an argument like this for many years. But what is clear even to me is that there is a second hurdle. The Commonwealth leaves open the possibility that the ‘just terms’ guarantee in the Constitution may not apply. You have to pass the two hurdles, and our amendment seeks to make clear that the Commonwealth is liable to pay compensation. I do not understand why the Commonwealth seeks to leave that open unless it is part of some attempt to provide an opportunity to escape its responsibilities. Perhaps the minister could explain why it is that the second hurdle is placed in the way of someone seeking compensation and why the proviso that that section of the Constitution, paragraph 51, needs to apply. Does the Commonwealth think that it does not? If so, why not and what is the effect of putting that second hurdle in the way?