Soldier or Closer Settlement.

Introduction

Despite the vagaries of rights, powers, and responsibilities between the Commonwealth and the States, this process should have been reasonably clear cut and easy. Section 51 of the Commonwealth Constitution states, "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 to which the Parliament has power to make laws."

The following details in relation to soldier or closer settlement were extracted from the High Court of Australia case, PJ Magennis Pty. Ltd. vs. The Commonwealth. [1949] 80 C.L.R. 382. PJ Magennis Pty. Ltd., represented by Garfield Barwick KC, won the case. The High Court ruled that the agreement between the Commonwealth and the State of New South Wales was invalid, and the New South Wales legislation was inoperative and without effect.

The Political process:

With the cessation of World War Two, a conference was held between the Prime Minister and the Premiers on the 9th of November 1945. At the conference agreement was reached for the settlement on land, in each State, of discharged members of the armed forces. The discharged members eligible for settlement were chosen by the Commonwealth, with the States concurrence, as settlement of ex-servicemen is a defence purpose, and therefore, a Commonwealth responsibility. Ex service men, with more than six months active service, could apply for consideration up to five years after they ceased war service. One of the principles agreed to, was that a person needed no capital in order to obtain benefit of the scheme.

For an unknown and unexplained reason the agreement, between the Commonwealth and the States of New South Wales, Victoria and Queensland, under which both parties assumed financial and other obligations, contained a term that, for the purpose of the agreement, land should be acquired compulsorily or by agreement at a value not exceeding that ruling on the 10th of February 1942. This date was expressly chosen in order to keep down the cost of buying back the land. I cannot find the significance of the 10/02/1942 but to say that the Battle of Singapore was occurring at this time. Possibly the fall of Singapore led to a fall in property values. This irregularity is the reason why this case came before the High Court.

However, the agreement between the Commonwealth and the States of Tasmania, South Australia and Western Australia, under which both parties assumed financial and other obligations, contained no such provision. So those State governments, could pay market price when purchasing or resuming land. The Commonwealth largely funded the acquisition of land and was responsible for funding; the training, living allowances, and transport of chosen settlers. The Commonwealth and respective State governments were to bear their own administration costs.

Both the Commonwealth and respective State governments were to equally bear the rental and interest expenses foregone during the period of Commonwealth assistance. Any advances to settlers which were unrecoverable or lost, were to be shared equally between respective governments. Advances could only be made by the States with Commonwealth approval.

Following this meeting, the Commonwealth of Australia passed the War Services Settlement Agreement Act of 1945 and each state then passed it own legislation with a similar title. The Tasmanian

parliament passed the War Services Settlement Agreement Act, coming into force on the 20th of December 1945, and The Closer Settlement Act 1945. The later act covered the purchase or resumption of properties for settlement.

The Tasmanian State Government erred badly when forming the Closer Settlement Board. Through either an oversight on their part, or commercial ignorance, they did not incorporate the Board. Perhaps politicians of their time and their advisers were plain incompetent, however, this left the Board management liable for any torts or debts incurred by the Board, and was to cause management difficulties in the future. Because of these difficulties the Closer Settlement Act was redrafted in 1950 and the older Closer Settlement Act of 1945 was repealed. The Closer Settlement Board and The Agricultural Bank of Tasmania were dissolved by the TASMANIAN DEVELOPMENT ACT 1983 - SECT 49.

In all states, once the property was acquired and developed, settlers , their heirs and assigns, were granted a Lease in Perpetuity. A 999 year lease with the right to freehold, provided annual rental was paid. Before this time, a lease in perpetuity was a concept unknown in Tasmania.

At the time the settler goes into occupation of his holding there is an obligation on the Commonwealth and State Governments to make a valuation of the actual holding, and in making this valuation the officers concerned are required to take into account the same factors which were used in constructing the trial budget, which was constructed originally for the purpose of determining farm size.

Settlers were required to pay for structural improvements over a period of 30 years. The price of these improvements was not to be their actual cost, but what they would have cost if they had been constructed in 1946. If you read the rest of the Soldier

Settlement information on this site you will see that the politicians recanted on their promise. Now a 21st century cynic would say " Isn 't this typical of politicians, particularly Federal ones?"

These men, however, expected and deserved a lot better. They had amongst their ranksRats of Tobruk' veterans of the Middle East and Pacific campaigns, Dam Busters' airmen, ex POW' s from Changi and the Burma Siam railway, and Naval men who served all over the world. Many had been to Hell and back, some many times over during their service, had thankfully survived the war, and were here to be rehabilitated. They were promised much, and a lot was delivered, but they were short changed when their rentals were assessed.

March 2008

Through observing web site visitors I have noted some interest in the case PJ McGennis Pty. Ltd. Vs The Commonwealth and Others, heard before 6 judges of the High Court in Sydney, November 1949. I have reproduced the bulk of the transcript of this trial. Chief Justice Latham delivered a favourable decision for McGennis, which was supported by Judges Rich, McTiernan, Williams and Robb with words similar to those of Judge Rich "I have had the opportunity of reading the judgement of my brother Williams and agree with it. In my opinion the demurrers should be overruled." These judgements add little to the reading and were omitted. Judge Dixon disagreed with the other judges, but he was in the minority and his opinion carries no weight so I omitted it also. Despite this you have 18 pages to peruse, enjoy.

The prosecution KC in this case, GE Barwick, went on to become a High Court judge.

© Peter Mulcahy 2006

Last updated Friday 3rd September 2010