§ 477. “Granted to or Acquired by the Commonwealth.”

ACQUISITION OF THE SITE.—The chief question which has arisen in connection with these words is whether the determination of the seat of Government rests, in the last resort, solely with the Federal Parliament, or whether the Federal Parliament is limited in its choice to sites offered by the Parliament of New South Wales. The opening words of the section strongly favour the former view; but it has been argued that the words “shall be within territory which shall have been granted to or acquired by the

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Commonwealth” point to a prior act of cession by the Parliament of New South Wales, and that — no express power to “acquire” being given by this section—the acquisition must be by surrender and acceptance under sec. 111.

The word “granted” does not occur elsewhere in the Constitution, except in the second paragraph of this section, where it is provided that so much of the territory as is Crown lands “shall be granted to the Commonwealth” without payment. What then is the meaning of the alternatives of grant or acquisition? One explanation that has been suggested is that Crown lands are to be “granted” and other lands are to be “acquired;” but this is not satisfactory, because the section deals with territory, not with property; and the distinction between Crown lands and privately owned lands is one of property, not of territory.

It is submitted that the word “granted” contemplates, as one mode of acquisition, the surrender of territory by the Parliament of New South Wales, and its acceptance by the Federal Parliament, under sec. 111. It is undoubtedly to be desired that the site should be mutually agreed upon between the Commonwealth and New South Wales; and we may anticipate that if any such agreement is possible no other mode of acquisition will be resorted to.

But what is the alternative mode of acquisition contemplated by the words “or acquired?” It can hardly refer to acquisition in the exercise of the power of “eminent domain” under sec. 51—xxxi., because that applies to “property,” not to territory. Nor can it refer to acquisition by surrender and acceptance under sec. 111, because that is already provided for by the word “granted.” The only conclusion is that the words “or acquired” refer to a different mode of acquisition; and the true interpretation seems to be that, failing an agreement between New South Wales and the Commonwealth, this section confers upon the Federal Parliament a reserve power to acquire a site without the concurrence of the Parliament of New South Wales. In other words, the power to determine the seat of Government, coupled with the direction that the seat of Government shall be within territory granted to or acquired by the Commonwealth, implies that the Commonwealth, in the absence of a grant, has power to acquire the necessary territory without grant.

That this was the intention of the framers seems clear from the history of the section. In the Adelaide Bill (see Hist. Note) it was provided simply that the seat of Government “shall be determined by the Parliament.” At the Melbourne session, the words “and shall be within federal territory” were added. This was expanded by the Premiers' Conference to read “and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth.” The object appears to have been to supplement the power of surrender and acceptance by a special power of federal acquisition, to make it clear that the duty of the Federal Parliament to determine the site could not be blocked by a refusal of New South Wales to surrender the territory needed.

This view seems to be supported by a general perusal of the section. There is a clear declaration that the seat of Government is to be determined by the Parliament, but there is no declaration that the concurrence of New South Wales is essential. Had that been the intention, it would surely have been expressly mentioned, and not left to be gathered by implication—and especially by implication from such wide words as “granted or acquired.”

Against this construction, it may be urged that whilst the federal territory is to contain an area of “not less than 100 square miles,” no maximum limit is fixed. It can hardly be supposed that the Federal Parliament has power to federalize an unlimited area of New South Wales as a seat of Government. But the answer seems to be that the power only extends to the acquisition of an area reasonably necessary for the purpose; and perhaps in the case of acquisition without surrender, the reasonable maximum would be held not to exceed, or greatly exceed, the minimum of 100 square miles.

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MR. OLIVER'S REPORT.—In November, 1899, in view of the fact that the Parliament of New South Wales might be called upon to offer or recommend a site for the seat of Government, the Government of New South Wales appointed Mr. Alexander Oliver, the President of the Land Court of that colony, as a Commissioner to enquire into and report upon the suitability of sites. He inspected a number of sites and took a quantity of evidence; and in his report, which was laid on the table of the Legislative Assembly on 30th October, 1900, he reported favourably upon three sites, in the neighbourhood of Orange, Yass, and Bombala respectively.

MEASUREMENT OF DISTANCE.—It would seem that the distance of 100 miles from Sydney is to be measured in a straight line, in accordance with the provisions of sec. 34 of the Imperial Interpretation Act, 1889 (p. 793, supra). Distances mentioned in Acts of New South Wales are measured by the nearest road (Interpretation Act [N.S.W.], 1897, sec. 35); but that can hardly be relied upon to show a “contrary intention” within the meaning of the Imperial Act.