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1881, Richard Stewart - Unfit For Publication
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The Sydney Daily Telegraph, Mon 5 Dec 1881 1

MONDAY, DECEMBER 5.
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Robert Wisdom, NSW Attorney. Image: Australian Town and Country Journal, (Syd, NSW), Sat 23 Aug 1879, p. 353. Reproduction: Peter de Waal
Robert Wisdom, NSW Attorney. Image: Australian
Town and Country Journal
, (Syd, NSW), Sat 23
Aug 1879, p. 353. Reproduction: Peter de Waal

    The [NSW Legislative] Assembly has been told that it has no business to meddle with a question which the Government will call upon it to consider this afternoon. In the ordinary course of business, the Attorney-General will move the second reading of the “Lands for Public Purposes Acquisition Act Amendment Act” but, in the opinion of our morning contemporary, hon[orable], members on both sides of the House should summarily reject the Bill as one which is incompatible with the “honour” of Parliament. This is the sum and substance of an article which appeared in the [Sydney Morning] Herald on Friday, but it appears to us that our contemporary has altogether misunderstood the Amending Act which has been submitted by Mr [Robert] Wisdom, [NSW Attorney-General]. It objects to and condemns it, because it involves “retrospective legislation,” and rests its arguments on the assumption that the Amending Act would undo something which had already been done under an existing law. This is a misrepresentation or misapprehension of the facts of the case and the reasons which have moved the Government to introduce the Bill. The Herald very correctly remarks, “No such Bill would have been introduced at this time but for the debate on the recent resumption of land in Darling Harbour.” This is perfectly correct; but what did the debate initiated by Mr Reid disclose? It proved two things, one being that the law as it stands is most one-sided, and therefore unfair to the public generally; and the other discovery was that, with respect to one of the most important points in the Act, the wording of the clause is unintelligible, if not flatly contradictory. With respect to the latter flaw in the Act, Mr Wisdom disagrees with several hon. and learned members of the Assembly. Mr Darley disagrees with Mr Wisdom, Sir Alfred Stephen disagrees with Mr Darley; and in fact there is such an all round difference of opinion among leading lawyers, that in all probability their Honors the Judges would also put different interpretations on the Act. The particular provision concerning which there is so much confusion is one which would have to be specially considered by a jury, in case an appeal was made under the Act to the Supreme Court with respect to compensation; and how could jurymen be expected to agree about a point of law respecting which the lawyers and judges are so much at loggerheads? The present Act provides that, if a claimant for compensation is not ratified with the amount fixed by the valuator appointed by the Government, he can appeal to the Supreme Court, and the 15th clause sets forth that “the issue to be tried in any such action shall be whether the claimant is entitled to a larger sum” than the amount of the valuation; but further on, in directing how the question of costs shall be decided, the clause provides that, if the verdict of the jury “shall be for a sum equal to, or less than, the amount of the valuation, the costs shall be paid by the claimant.” The clause is manifestly contradictory, and all that Mr Wisdom proposes to do is to abolish the contradiction, and amend the Act so that there can be no bone left in it for lawyers to pick. When addressing the House on the subject, the Attorney-General contended that the intention of the Legislature was to place the Government and claimants for compensation on an equality by giving a jury power to either increase or decrease the amount of the valuation; and there can be no doubt that the hon. gentleman was right. It would open the way to the most monstrous abuses if the Supreme Court had no power to reverse the decisions of arbitrators, and all that the Amending Bill introduced by Mr Wisdom does is to give that power—a power which is absolutely necessary for the protection of the interests of the public. There is no “retrospective legislation” in this. In fact, so far as regards this portion of the Bill, which will come under consideration this afternoon, it might be termed “The Lands for Public Purposes Acquisition Act Explanatory Act.” Mr Wisdom does not propose to alter the existing Act, but to simply explain in an amending Act what it was the intention of Parliament should have been embodied in the law. The Herald contends that, if the amending Bill is passed the Darling Harbour claimants may “be deprived of their legal rights;” but the question is, what are their legal rights? Will our contemporary undertake to settle the issue raised among the lawyers? Will it decide whether the words “a larger sum” or “a sum equal to or less than” govern the clause, and which of the two contradictory expressions determines the “legal rights” of the claimants? This obviously contradictory clause is the only one in the Act which the Bill introduced by Mr Wisdom touches, and, instead of a agreeing with our contemporary that is the question might very well wait for “another session,” we are of opinion that the Amending Bill should not only be passed forthwith, but that it should go much further than it does. The 14th clause of the existing Act gives a claimant the right to appeal to the Supreme Court against the decision of an arbitrator, but it does not give the Government a similar privilege. Whatever amount an arbitrator awards the Government must pay it, and that within one month of the valuation being sent in, and without any reference whatever to Parliament. The Darling Harbour claimants ask for £761,494-1s-2d, and should Mr Mills, the gentleman appointed by the Government to value the various properties, decide that the claims should be paid, they would have to be satisfied, there being no provision in the Act under which the Government could protect itself or the public against what is popularly presumed to be an all-round attempt at imposition. The hon. the Attorney-General spoke of these claims the other night as “almost swindling claims,” and probably, if the hon. gentleman had deemed it prudent to give his worst of thoughts the worst of words, he would not have qualified his opinion to the extent he did. Our contention, therefore has been, and is, that it should not be legally possible for the Darling Harbour or any other claimants to receive whatever amounts they demand on the strength of a valuator’s decision. We are anxious not to be misunderstood in this matter, so far as Mr Mills is concerned. We believe that the Government could not have placed the valuation of the properties in better keeping, and that, with respect to the awards which Mr Mills will hand in, they will be stamped with the authority of a man whose reputation is above suspicion. What we object to is the dangerous provision of the law which leaves it open to a valuator to come to an understanding with the owners of property whereby he could give them all they ask, without the Government having any power to appeal against his decision. We feel assured that Mr Mills will not misunderstand us if we avail ourselves of the position in which he is placed to explain what we mean. Supposing, therefore, that he were an unscrupulous man, and some or all of the claimants were equally so, what could be easier than for him to make thousands of pounds out of the transactions which he has been authorised to settle? According to the Act, it rests with him absolutely to give each of the claimants all that the demands — even to the odd 2d; and we maintain that this is a power which no valuator should possess. When this point was raised by Mr Reid, Mr Wisdom interjected a remark to the effect that the Government should not or could not appeal against the decision of “its own valuator;” and while we admit that there was some force in the hon. gentleman’s remark, we adhere to the opinion that it would be both wise and fair to take such a power. Possessing it could do no harm were it not required to be exercised, but cases might arise in which its possession might save the public from being palpably plundered. What sort of a position would the Government be in should Mr Mills send in valuations giving the Darling Harbour claimants all the money they have asked for? The Secretary for Public Works has stated in the House that he considers the properties should be obtained for less than half the amounts claimed, and the Attorney-General has stigmatised the claims as something very like swindles; but Mr Mills has the power to repudiate Mr Lackey’s estimate and ratify the “swindles” about which Mr Wisdom spoke so strongly, and surely the Amending Act should give the Government the power to appeal against such a possible misappropriation of public money.

    Richard Stewart, living in May-street, Glebe, was taken to the Infirmary on Saturday evening suffering from a wound on the upper and front part of the head, about an inch long and one-eighth on an inch deep. The wound was said to have been caused by a constable, who struck him with his baton for resisting while in custody for indecent exposure. The patient, who was not seriously injured, will, it is expected, be discharged from the institution to-day

 


1     The Sydney Daily Telegraph, (NSW), Mon 5 Dec 1881, p. 2. Emphasis added.