Sometimes the child will not leave home voluntarily and hangs around bludging off the parent. So it was with the ACT. The parent, the Commonwealth, had to make the ACT take control of itself and, more importantly, pay for itself.
So it forced the ACT to take self-government. When it did so, it handed to the new ACT body politic a debt-free territory and nearly all the land of the territory, though reserving some for its own purposes. The land kept back by the Commonwealth was all the obvious stuff – the big national institutions, the diplomatic quarters, the trunk and ceremonial routes, and government departments. But it also included some odd spots which the Commonwealth thought it might want to use later.
This last category is causing strife.
This week, the Commonwealth is in a contractionary, privatising mood, not an expansionary one and so it thought than land it had reserved 13 years after self-government in Tuggeranong was not longer needed for Commonwealth purposes. It decided to flog it off and placed advertisements accordingly.
The 53,500 sq metres of land is on the corner of Soward Way and Athllon Drive near the Tuggeranong Town Centre. It is about the size of 80 suburban blocks.
Putting that amount of land on the market unexpectedly in one hit is bound to cause havoc to orderly planning processes and to commercial expectations of others in the area.
The Territory Government has kicked up a fuss, saying that the understanding at self-government was to render unto the Territory all things territorian and render unto the Commonwealth all things national. A tract of land in Tuggeranong – once thought to be a possibility for an extension of the old Department of Social Security, or whatever, but now not needed for that – is essential a territory piece of land – for shops, offices, houses or whatever for the people of the territory, not for some Commonwealth function. Morally, and almost legally, the Commonwealth should hand the land to the Territory.
I say ALMOST because although the intent of the law is obvious to the lay mind, to the legal technocrat it means the opposite of what it says. And, by the way, in all of the wrangling during the week, few people have gone back to the original law.
The Australian Capital Territory Planning and Land Management Act – passed by the Federal Parliament in 1988 – provides that at self-government the federal Minister “”may by notice published in the Gazette declare specified areas of land in the Territory to be National Land”. He did. It included the chunk at stake.
“”The Minister shall not declare an area to be National Land unless the land is, or is intended to be, used on or behalf of the Commonwealth,” the Act says. “”At any time when any land is not National Land, that land is Territory land.”
Pretty plain, you would think. If the Commonwealth has no use for the land it is territory land.
Enter the lawyers.
“”Used on or behalf of the Commonwealth” does not mean – that the Commonwealth occupy and use the land, you silly non-lawyers.
Lawyers say that you can “”use” land by flogging it off. The act of flogging it off is in fact “”using” the land.
A legal brawl over the Gowrie Hostel in Northbourne Avenue – the “”Twin Towers of Sin” as they were called in the late 1960s — established that that virtually anything the Commonwealth wanted to do with land, including sell, was a use on or behalf of the Commonwealth.
So on this occasion the Commonwealth is within is strict legal rights. Poor Simon Corbell is scratching around looking for a document or agreement that says the Territory should get this land. He will not find it. The office of the Commonwealth Minister of State, Eric Arbetz, is quite right. It does not exist. It does not exist because it is in the legislation, the ordinary meaning of which says the land should come gratis to the Territory, but the legal meaning of which means the Commonwealth can do what it likes with it – including selling it.
It is a classic of what Liberal Party national president Shane Stone referred to as the Government being “”mean and tricky”. Mean because it wants the money, tiny as it is on the national scale of things. Tricky because it perverts the obvious intention of the statute.
Now we have a glut of commercial land in Tuggeranong. What can be done.
As soon as it is sold it becomes Territory land. The Legislative Assembly could prepare an amendment to the Territory Plan designating the area for wilderness or recreational use if it wanted. And it could announce its intention now, thus ensuring the Commonwealth gets a very low price.
Incidentally, under the National Capital Plan, the National Capital Authority is required with land like this to agree to a development control plan to ensure synchonisation with the Territory Plan (insofar as the territory never envisaged such a big release of land depressing commercial property values). The NCA should not sit on its hands as it has been doing.
But do we want the unedifying spectacle of the Territory and the Commonwealth behaving like grubby white-shoe developers flogging land for whatever they can get or stymieing each other with mean trickiness.
The economy – particularly the commercial property market in Tuggeranong — is erratic enough. So much for the Commonwealth’s concern for small business.
And there is a lot more land like this. It is time the Commonwealth — which forced the adolescent territory to stand on its own feet — grew up.