I would suggest that the Minister should consider this amendment. The appeal tribunal is, so to speak, constituted as an appeal court from the decision of the lay commissioners in respect of the matters mentioned in Part III of the Bill, namely, the application by the Minister for an Order to extinguish easements; secondly, an application by the owners of timber for temporary rights-of-way for transport of the timber; thirdly, an application by the Minister for the creation of rights-of-way created by him and fourthly, compulsory acquisition of land. Under the Land Act of 1933 which set up the appeal tribunal, an appeal is given to the Supreme Court from a determination of the appeal tribunal as to whether or not any question was a question of law.
Under the Act of 1933, the appeal tribunal became in effect the successor of the judicial commissioner. Prior to that time an appeal lay to the Supreme Court from a decision of the judicial commissioner on a question of law, and after the Act of 1933, an appeal lay to the Supreme Court from the decision of the appeal tribunal on a question of law. This Bill provides that the appeal tribunal shall be final on any appeal made to it under Part III of the Act in respect of the matter I have mentioned.
Senator Sweetman's amendment is to give a right of appeal from the decision of the appeal tribunal on a question of law. That appeal should be to the Supreme Court. Undoubtedly questions of law will arise. Under Section 19 of the Bill the Minister will make an application to the lay commissioners for an Order extinguishing easements. Of course, the extinguishment of easements will affect the persons who are entitled to those easements and they will be entitled to get compensation. In the same way, where an application is made by the owner of timber for a temporary right-of-way over lands, in Section 20 called servient tenements, although it may not strictly speaking be servient. There may be cases where a timber merchant may buy timber from the dominant tenant and wish to take his timber across some other person's land to the public road.
In the year 1921 there was a case decided in the courts, Maguire and Brown, which went to the House of Lords. In that case timber had been bought in a moat which was land-locked and the person who got the timber wished to take it to the public road. The owner of the surrounding land objected and the matter went to court. The owner of the timber or the person on whose land the timber was grown claimed there was no way of necessity entitling him to take the timber out. It was held by the courts that the only right-of-way that existed to the land-locked moat was a pathway for the purpose of enabling antiquarians to visit objects of antiquarian interest in the moat and that right-of-way pathway did not entitle the owner of timber to use it for the purpose of taking the timber to the public road.
Under this Bill a person cutting timber in a land-locked area will be enabled to obtain a temporary right-of-way to the public road for the purpose of taking the timber away, but it will be necessary for him to apply to the lay commissioners and there may be an appeal to the tribunal afterwards. In addition, under this Bill the Minister will apply to the lay commissioners for the purpose of enabling rights-of-way to be created, rights-of-way which, of course, were never there, and he can also apply in the same way regarding the compulsory acquisition of land. These questions will arise and the exercise of powers of compulsory acquisition will also come on to be dealt with so, therefore, I think myself that questions of law must inevitably arise.
Now, at the present time under the Land Acts, or under the Land Act of 1933, a question before the appeal tribunal is either a question of law or a question of fact. This Bill does not make any provision for the determination. It is, perhaps, assumed that it is a question of fact, but undoubtedly, whether a question is a question of law or not, is in itself a question of law and, therefore, I think that following the precedent set in the Land Purchase Acts that wherever a tribunal such as an appeal tribunal which, after all, although it may be constituted with a judge of the High Court as its presiding member, nevertheless in a sense really a tribunal because a question of law may be decided by a majority, including a layman with the judge, or by two laymen.
I think myself that it would be advisable that, on any question of law, an appeal should lie to the Supreme Court, because if there is any flaw in legislation it can only be ascertained and detected in the ultimate resort in the Supreme Court. A number of persons may suffer in silence, and must suffer in silence, as long as the matter is confined to what I may call a tribunal of limited jurisdiction. Therefore, in order, so to speak, to give all persons a fair crack of the whip, and in order that the Act itself might be interpreted in a correct sense, I think that where a question of law arises the party aggrieved should have the opportunity of going to the Supreme Court. I also think that such an opportunity, of having the Act interpreted by the highest judicial tribunal in the land, would be of benefit to the appeal tribunal itself in any further appeals which may come before it. Therefore, I think that the section in this Bill which makes an appeal to the appeal tribunal final is, as I say, a flaw in the Bill, especially as this Bill is, so to speak, in these matters an innovation. The Minister, under the Bill, can, provided he obtains the necessary order, extinguish easements, and can, so to speak, create easements, and persons may obtain rights over the lands of other people. The question of compulsory acquisition also arises, so that these matters, I think, are more or less in this Bill legislative novelties.
Therefore, I would suggest that an appeal should be allowed from the appeal tribunal to the Supreme Court on any question of law. I think it is in uniformity with all legislation that, where what I may call inferior tribunals are empowered to determine matters of law which may affect the rights and the property of a citizen, the citizen at all events should be entitled to go to the highest court in the land in order to have an affirmative ruling whether or not the inferior tribunal was or was not right in law. Although the appeal tribunal has, as I say, a High Court judge as its chairman, that, in my submission, is not sufficient to deprive an appellant of the right of appeal to the Supreme Court on a question of law, because there is an appeal to the Supreme Court from that very same judge sitting as a High Court judge on a question of law. That appeal is guaranteed by the Constitution. Therefore, I think myself that any legislation limiting the right of appeal on questions of law to inferior tribunals is, in itself, contrary to the Constitution.
