HIGH COURT OF AUSTRALIA
BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ
ALEC KRUGER & ORS v THE COMMONWEALTH OF AUSTRALIA (Matter No M21 of 1995); GEORGE ERNEST BRAY & ORS v THE COMMONWEALTH OF AUSTRALIA (Matter No D5 of 1995)
Constitutional law - Limitation laws
(1997) 146 ALR 126
31 July 1997
Constitutional law - Limitation laws
Constitutional law—Purported invalidity of Aboriginals Ordinance 1918 (NT)—Whether beyond the power which could be conferred to the Governor-General of the Commonwealth and the Legislative Council of the Northern Territory under s 122—Method of characterisation applied to laws purported to be supported by s 122. Constitutional law—Existence of implied constitutional immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth—Whether Ordinance is contrary to such immunity—Whether s 122 is subject to Ch III—Whether deprivation of liberty can occur without exercise of judicial power. Constitutional law—Existence of implied constitutional principle of legal equality—Whether Ordinance is contrary to such principle. Constitutional law—Existence of constitutional implication of freedom of movement and association—Whether Ordinance is contrary to such freedom—Whether s 122 is subject to implied freedoms. Constitutional law—Convention on the Prevention and Punishment of the Crime of Genocide—Existence of implied constitutional immunity from any law authorising acts of genocide—Whether Ordinance is contrary to such immunity. Constitutional law—Whether Ordinance is a law for prohibiting the free exercise of religion contrary to s 116—Whether s 122 is subject to s 116. Constitutional law—Availability of damages from Commonwealth for breach of the Constitution by an officer of the Commonwealth. Limitation laws—Commonwealth and Territory laws—Application of Judiciary Act 1903 (Cth). Aboriginals Ordinance 1918 (NT). Constitution ss 116, 122. Judiciary Act 1903 (Cth), ss 56(1), 64 and 79. Convention on the Prevention and Punishment of the Crime of Genocide.
Orders
Order:
Matter No M21 of 1995
1. The questions reserved for the consideration of the Full Court be answered as follows:
"Q.1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"
A. No.
"Q.2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by -
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"
A. No.
"Q.3. If yes to question 1 or question 2, are any and which of the matters pleaded in subparagraphs (d) and (e) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?"
A. Unnecessary to answer.
"Q.4. If yes to question 2 -
(a) on the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred?
(b) by what statute?"
A. Unnecessary to answer.
"Q.5. If yes to question 2, on the facts pleaded in -
(a) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;
(b) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,
are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?"
A. Unnecessary to answer.
"Q.6. If yes to question 2, on the facts pleaded in -
(a) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;
(b) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,
are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision -
(i) capable of being barred by laches or other analogous equitable principles?
(ii) barred by laches or other analogous equitable principles?"
A. Unnecessary to answer.
"Q.7. On the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim -
(a) are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred?
(b) by what statute?"
A. Unnecessary to answer.
2. The plaintiffs pay the defendant's costs.
Matter No D5 of 1995
1. The questions reserved for the consideration of the Full Court be answered as follows:
"Q.1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 4-9 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 26 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"
A. No.
"Q.2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 26 of the Amended Statement of Claim, a breach of which by -
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"
A. No.
"Q.3. If yes to question 1 or question 2, are any and which of the matters pleaded in subparagraphs (d) and (e) of paragraph 26 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?"
A. Unnecessary to answer.
"Q.4. If yes to question 2 -
(a) on the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred?
(b) by what statute?"
A. Unnecessary to answer.
"Q.5. If yes to question 2, on the facts pleaded in -
(a) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;
(b) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,
are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?"
A. Unnecessary to answer.
"Q.6. If yes to question 2, on the facts pleaded in -
(a) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply; (b) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,
are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision -
(i) capable of being barred by laches or other analogous equitable principles?
(ii) barred by laches or other analogous equitable principles?"
A. Unnecessary to answer.
"Q.7. On the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim -
(a) are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred?
(b) by what statute?"
A. Unnecessary to answer.
2. The plaintiffs pay the defendant's costs.
Decision
BRENNAN CJ.
The plaintiffs are Aboriginal Australians. All but one of them were children of tender years living in the Northern Territory when they were allegedly "removed into and detained and kept in the care, custody and/or control" of the Chief Protector of Aborigines (or of his successor in function, the Director of Native Affairs) "and thereafter detained and kept away from his [or her] mother and family in aboriginal institutions and/or reserves". The other plaintiff, Rosie Napangardi McClary, is the mother of a child who, without the mother's consent, allegedly suffered the same fate as the other plaintiffs. The plaintiffs seek, inter alia, a declaration that the provisions of the Ordinances of the Northern Territory under which these alleged actions were taken were invalid and that the Acts of the Commonwealth under which those provisions were enacted were invalid in so far as they might be found to have authorised the impugned provisions of the Ordinances.
The relevant provisions[1] are to be found in ss 6, 7, 16 and 67 of the Aboriginals Ordinance ("the Ordinance") which commenced operation on 13 June 1918. That Ordinance was made by the Governor-General pursuant to powers conferred by s 7(3) of the Northern Territory Acceptance Act 1910 (Cth) ("the Acceptance Act") and by s 13 of the Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act"). The Ordinance was amended from time to time by the Governor-General pursuant to the same statutory powers or, in one instance, pursuant to powers conferred by the Northern Australia Act 1926 (Cth). In 1953, a further amendment was made to the Ordinance by the Legislative Council of the Northern Territory which had acquired the requisite powers under the Administration Act. Nothing turns on the terms of the amendments made and it is sufficient to set out the terms of the impugned provisions of the Ordinanceas they stood in 1918.
The Ordinanceprovided:
" 6. (1) The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.The Chief Protector and Protectors of Aboriginals were appointed under the Ordinance. After an amendment of the Ordinance[2] in 1939, the Director of Native Affairs became the successor in function to the Chief Protector. In 1953[3], s 7 was amended to read:
(2) Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.
(3) The powers of the Chief Protector under this section may be exercised whether the aboriginal or half-caste is under a contract of employment or not.
7. (1) The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of the Act of the State of South Australia in force in the Northern Territory entitled The State Children Act 1895, or any Act of that State or Ordinance amending or substituted for that Act.
(2) Every Protector shall, within his district, be the local guardian of every such child within his district, and as such shall have and may exercise such powers and duties as are prescribed."
" 7. The Director is the legal guardian of all aboriginals."Each of the plaintiffs is an "Aboriginal" as defined in s 3 of the Ordinance. Section 16 reads:
" 16. (1) The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.Regulations (described in the amended statements of claim as the "removal regulations") made in purported pursuance of s 67 conferred on Protectors "at their discretion" the power to "forward any aboriginal or half-caste children to the nearest aboriginal institution or school, reporting the reason for such action to the Chief Protector"[4] or, from 17 October 1940, to the Director[5].
(2) Any aboriginal or half-caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance.
(3) Sub-section (1) of this section shall not apply to any aboriginal or half-caste -
(a) who is lawfully employed by any person; or
(b) who is the holder of a permit to be absent from the reserve or aboriginal institution in question; or
(c) who is a female lawfully married to and residing with a husband who is substantially of European origin or descent; or
(d) for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made. ...
67. (1) The Administrator may make regulations, not inconsistent with this Ordinance, prescribing all matters and things which by this Ordinance are required or permitted to be prescribed, or which may be necessary or convenient to be prescribed for the effectual carrying out of this Ordinance, and in particular -
(a) ...
(b) providing for the care, custody and eduction of the children of aboriginals and half-castes;
(c) enabling any aboriginal or half-caste child to be sent to and detained in an Aboriginal Institution or Industrial School;
(d) providing for the control, care and education of aboriginals or half-castes in aboriginal institutions and for the supervision of such institutions;
(e) providing for the control and prevention of communicable diseases amongst aboriginals or half-castes;
(f) prescribing the conditions on which aboriginal and half-caste children may be apprenticed to or placed in the service of suitable people; ..."
Sections 6 and 16 are the principal provisions of the Ordinance which are material to the alleged removal and detention of the Aboriginal children referred to in the amended statements of claim. Those children, including the child of the plaintiff Rosie Napangardi McClary, are hereafter referred to collectively as "the plaintiff children". Section 6 conferred on the Chief Protector a power "to undertake the care, custody, or control" of the plaintiff children but that power was conditioned upon the Protector's opinion that "it [was] necessary or desirable in the interests of the aboriginal or half-caste for him to do so". This is a power which in terms is conferred to serve the interests of those whose care, custody or control might be undertaken. It is not a power to be exercised adversely to those individual interests. And, as s 67 required the regulations made thereunder to be "for the effectual carrying out" of the Ordinance, a valid exercise of the powers conferred by the removal regulations would have to be intended to serve the interests of the "aboriginals and half-castes" to whom those regulations applied in any case in which the power was being exercised in performance of the function of care, custody or control. The several paragraphs of s 67 indicate that the regulations are to facilitate the serving of the interests of the "aboriginals and half-castes" to whom the regulations might be applied. The requirement prescribed by the removal regulations that a Protector report to the Chief Protector or Director the reasons for forwarding Aboriginal or half-caste children to an Aboriginal institution or school also suggests that the Chief Protector or Director should supervise the Protectors' exercise of authority to ensure that the duties of guardianship are properly discharged.
Of course, a power which is to be exercised in the interests of another may be misused. Revelation of the ways in which the powers conferred by the Ordinance were exercised in many cases has profoundly distressed the nation, but the susceptibility of a power to its misuse is not an indicium of its invalidity[6]. It may be that in the cases of the plaintiff children, the Chief Protector or the Director formed an opinion about their interests which would not be accepted today as a reasonable opinion having regard to contemporary community standards and the interests of those children in being kept together with their families. The practice of enforced separations is now seen to be unacceptable as a general policy. However, the erroneous formation of an opinion by the Chief Protector which purported to enliven the exercise of the power conferred by s 6 or by the removal regulations does not deny the validity of s 6 or of those regulations, though it may deny the validity of the exercise of the power[7].
Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[8]. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention. Therefore, it would be erroneous in point of law to hold that a step taken in purported exercise of a discretionary power was taken unreasonably and therefore without authority if the unreasonableness appears only from a change in community standards that has occurred since the step was taken. However that may be, even if the powers conferred by s 6 of the Ordinance and by the removal regulations were misused in the cases of the plaintiff children, the fact of misuse would not affect the validity of those provisions.
Sections 6 and 7 of the Ordinance and the removal regulations, so far as those regulations effectually carry out ss 6 and 7, were laws which were calculated to advance the interests of the "aboriginals and half-castes" of the Northern Territory. They are clearly supportable as laws made for the government of the Northern Territory, finding their constitutional authority in s 122 of the Constitution.
Section 16 is a provision of a different kind. On its face, it is not simply intended to serve the interests of the persons over whom the power might be exercised. In Waters v The Commonwealth[9] Fullagar J considered whether there had been an abuse of power or an absence of bona fides in the exercise of power by the Director who in effect had authorised the taking into custody at Darwin of the plaintiff and his removal to and detention in the Haast Bluff Aboriginal Reserve. Fullagar J, who was of the opinion that the Director was empowered by s 16 to authorise these steps to be taken, said[10]:
"The powers which the Director wields are vast, and those over whom he wields them are likely often to be weak and helpless. His responsibility is heavy. When he acts, every presumption has to be made in his favour. He must often act on his own opinion in circumstances of difficulty, and no court can substitute its opinion for his. But, on the other hand, the courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed. The material before me in this case, however, fails completely, in my opinion, to make even a prima-facie case of abuse of power.
The conferring of a power which was capable of use so as to compel the removal of a person from one place to another and to confine that person in the other place must find clear support in the legislative power relied upon to support the provisions which confer the power. In the present case, the legislative power relied on to support theOrdinance and the removal regulations is s 122 of the Constitution.
It was argued that, both under s 6 and under s 16, the only consideration which should affect the discretion of the Director was the welfare of the particular aboriginal concerned. This may be so under s 6, but, so far as s 16 is concerned, it is, in my opinion, by no means the only legitimate consideration. Unlike s 6, s 16 contains no reference to the formation of any particular opinion on the part of the Director. The discretion given is in terms absolute. I have no intention, on such an application as this, of laying down any rules for the guidance of the Director. But I think I should say that, in my opinion, he may legitimately take into consideration a number of other factors in addition to the welfare of the particular aboriginal concerned, and that these include the welfare of other aboriginals and the general interests of the community in which the particular aboriginal dwells."
Although the impugned provisions of the Ordinance and of the removal regulations were made in purported pursuance of the Acceptance Act, the Administration Act and the Northern Australia Act, the plaintiffs contended that s 122 of the Constitution was incapable of authorising the conferral of power on the Governor-General or on the Legislative Council to make those provisions. The amended statements of claim advanced reasons for alleging the invalidity of the Ordinance and in particular ss 6, 7 and 16 and, in so far as it purported to confer power to make or amend the removal regulations, s 67. The reasons were stated in six sub-paragraphs of a paragraph drawn in identical terms in the amended statements of claim in each of the two actions[11]:
"(i) A. it was contrary to an implied constitutional right to freedom from and/or immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth conferred in accordance with Ch III of the Constitution or of judicial power under laws of the Commonwealth;The factual issues in these actions have not been tried but, for reasons which I have earlier given[12], I reserved certain questions of law arising on the pleadings in each of the cases for the opinion of the Full Court. In each case, the first of those questions was in the following terms[13]:
B. it purported to confer judicial power of the Commonwealth -
(1) on persons who were not appointed under or obliged or entitled to exercise the judicial power of the Commonwealth in accordance with Ch III of the Constitution or judicial power under laws of the Commonwealth;
(2) other than on Courts established under or in accordance with Ch III of the Constitution or under laws of the Commonwealth;
(ii) it was contrary to an implied constitutional right to and/or guarantee of legal equality including equality before and under, and equal protection of, the law, and in particular, laws of the Commonwealth and laws made pursuant to or under the authority of laws of the Commonwealth;
(iii) it was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association;
(iv) it was contrary to an implied constitutional right to freedom from and/or immunity from any law, purported law or executive act:
A. providing for or having a purpose, the effect or the likely effect of the destruction in whole or in part of a racial or ethnic group, or the language and culture of such a group;
B. subjecting the children of a racial or ethnic group, solely by reason of their membership of that group, to the legal disability of removal and detention away from the group; or
C. constituting or authorising the crime against humanity of genocide by, inter alia, providing for, constituting or authorising:
(i) the removal and transfer of children of a racial or ethnic group in a manner which was calculated to bring about the group's physical destruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely effect of causing serious mental harm to members of a racial or ethnic group; and
(iii) the deliberate infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part;
(v) the Aboriginals Ordinance, and, insofar as they purported to authorise the enactment or amendment of the Aboriginals Ordinance or provisions thereof, the Administration Act, the Acceptance Act and the Northern Australia Act, were not laws for the government of the Northern Territory.
(vi) it was a law for prohibiting the free exercise of a religion contrary to section 116 of the Constitution."
"1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"This question looks to the effect of the "rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29" on the Acceptance Act, the Administration Act, the Northern Australia Act, the Ordinance and the removal regulations. Unless some one or more of these provisions arguably authorises the taking of action which is inconsistent with one or more of the proposed grounds of constitutional protection referred to in par 29, it is unnecessary to consider whether those grounds restrict the scope of s 122 of the Constitution.
It can be accepted that the detention of Aboriginal children and keeping them away from their mothers and families in Aboriginal institutions or reserves might well have caused mental harm in at least some cases but, as a matter of statutory interpretation, none of the impugned provisions can be taken to have authorised or purportedly authorised acts done for the purpose or with the intention of causing mental harm as alleged in sub-par (iv). If the impugned laws authorised the keeping of a plaintiff child in Aboriginal institutions or reserves "in the interests" of the child or for some other legitimate purpose under s 16, they did not thereby authorise an intentional or purposeful infliction of mental harm. In retrospect, many would say that the risk of a child suffering mental harm by being kept away from its mother or family was too great to permit even a well-intentioned policy of separation to be implemented, but the existence of that risk did not deny the legislative power to make the laws which permitted the implementation of that policy. It is therefore unnecessary to consider sub-par (iv).
Similarly, none of the impugned laws on its proper construction can be seen as a law for prohibiting the free exercise of a religion, contrary to the pleading in sub-par (vi). To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids[14]. None of the impugned laws has such a purpose. That leaves for consideration the questions whether s 122 would support the impugned laws (sub-par (v)) and whether the scope of s 122 is limited by restrictions arising from the terms or structure of the Constitution affecting the judicial power of the Commonwealth (sub-par (i)), equality under the law (sub-par (ii)), or freedom of movement and association (sub-par (iii)).
The scope of the legislative power conferred by s 122 of the Constitution
Section 122 reads as follows:
" The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."This section confers on the Parliament a legislative power that has been described in the broadest terms: Isaacs J in R v Bernasconi[15] described it as "an unqualified grant complete in itself"; Barwick CJ in Spratt v Hermes[16] described it as a legislative power "as large and universal ... as can be granted" and the Court described it in Teori Tau v The Commonwealth[17] as "unlimited and unqualified in point of subject matter". The power "to make laws for the government" of a territory can be divided into two broad categories, namely, a power to make laws defining the form and institutions of a government for a territory of the Commonwealth[18] and a power to enact the domestic laws of the territory other than laws with respect to the form and institutions of its government. An exercise of the power conferred by s 122 may both define the power of a territory legislature and enact the laws which, irrespective of laws enacted by that legislature, are to be the laws of that territory. All that is needed to attract the support of s 122 to a law enacted by the Parliament is "a sufficient nexus or connexion between the law and the Territory"[19]. In the present case, the impugned laws were expressed to operate in the Northern Territory and to be applied to persons within that Territory. They were laws which fell clearly within the prima facie scope of s 122. The ground of alleged invalidity contained in sub-par (v) is without substance.
However, s 122 must be construed in its context and, having regard to the structure of the Constitution and some of its particular provisions, some restrictions on the generality of its grant of legislative power appear[20].
The Constitution, though in form and substance a statute of the Parliament of the United Kingdom, was a compact among the peoples of the federating Colonies, as the preamble to the Constitution declares. In Capital Duplicators Pty Ltd v Australian Capital Territory[21] Brennan, Deane and Toohey JJ said:
" The Constitution was enacted to give effect to the agreement reached by the people of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia to unite 'in one indissoluble Federal Commonwealth'[22]. The Constitution is no ordinary statute; it is the instrument designed to fulfil the objectives of the federal compact".The leading object of the Constitution was the creation of the Federation. The Constitution prescribed the institutions and powers of the Commonwealth and, by ss 106 and 107, conferred upon the States their constitutions and powers subject to the Constitution. The Constitution thus prescribed the charter of the respective powers of the Commonwealth and States. The federal compact was expressed in the distribution of legislative, executive and judicial power to be exercised throughout the federating States by the Commonwealth on the one hand and the respective States on the other. The boundaries of the Commonwealth of Federation were coterminous with the aggregate of the boundaries of the federating Colonies except the Commonwealth's rights in and power over the territorial sea, seabed and airspace and continental shelf and incline which were acquired by the new polity in virtue of its international personality[23]. There were in fact no internal Commonwealth territories when the Commonwealth was established. Section 122 conferred on the Commonwealth an additional, non-federal function: the government of territories external to the Commonwealth and, by cession from the States, of other territories within the boundaries of the Commonwealth. This function was non-federal in the sense that the governmental powers to be exercised in the territories were not shared in any way with the States[24]. At the time of Federation, the only territories which were foreseen as territories of the Commonwealth were the Northern Territory of South Australia, the Fiji Islands and British New Guinea[25]. The legislative powers conferred by s 122 were the powers available for exercise by the Commonwealth in and for the internal territories, as well as for the external territories. Section 122 is found in Ch VI of the Constitution - "New States". It stands outside Chs I to V which govern the relationship between the Commonwealth and the States. It stands in a Chapter that confers on the Parliament of the Commonwealth the powers required to vary the constituent polities of the federal compact and to govern the territories of the Commonwealth that are not, or not yet, a constituent polity of that compact. The scope of s 122 is not confined by limitations or restrictions derived from provisions of the Constitution that are designed merely to distribute powers as between the Commonwealth and the States. But neither does s 122 impair or distort the distribution of powers as between the Commonwealth and the States which is expressed in the federal compact[26]. Therefore, when limitations or restrictions on Commonwealth legislative power are implied from the text or structure of the Constitution and are said to qualify the legislative powers conferred by s 122, it is necessary to consider whence the proposed limitation or restriction is derived. The position was stated by Barwick CJ in Spratt v Hermes[27]:
"It may also be granted that the powers which were given to the Commonwealth were of different orders, some federal, limited by subject matter, some complete and given expressly, and some no doubt derived by implication from the very creation or existence of the body politic. Consequently, the need to observe the nature of the powers sought to be exercised at any time by the Commonwealth is ever present. But, the Constitution brought into existence but one Commonwealth which was, in turn, destined to become the nation. The difference in the quality and extent of the powers given to it introduced no duality in the Commonwealth itself. The undoubted fact that the Commonwealth emerged from a federal compact or that that compact is reflected in the limitations placed upon some of the powers of the Commonwealth or that the new political entity derived from a union of the peoples of the former colonies does not deny the essential unity and singleness of the Commonwealth."Accordingly, although Ch III of the Constitution contains exclusively the legislative power to confer judicial power for exercise throughout the federal Commonwealth[28], the Privy Council said in Attorney-General of the Commonwealth of Australia v The Queen ("the Boilermakers' Case" (PC))[29] that Ch III is regarded
"as exhaustively describing the federal judicature and its functions in reference only to the federal system of which the Territories do not form part. There appears to be no reason why the Parliament having plenary power under s 122 should not invest the High Court or any other court with appellate jurisdiction from the courts of the Territories. The legislative power in respect of the Territories is a disparate and non-federal matter."This is the accepted doctrine of the relationship between Ch III and s 122[30]. As Kitto J said in Spratt v Hermes[31]:
"But it has been the doctrine of this Court for fifty years, consistently maintained notwithstanding criticism, that Chap III is directed to a limited topic and accordingly has a limited application. The doctrine arises from a consideration of the framework of the Constitution and from many indications, to be found by working through the Constitution Act (63 and 64 Vict c 12) and the Constitution itself, that the first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies, with their divers interests, sentiments, prejudices, ambitions and apprehensions, to unite in the federation. When Chap VI is reached, and it is found that s 122 gives the Parliament a general power to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed under the authority of the Commonwealth or otherwise acquired by it, a change to a fundamentally different topic is perceived. The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being 'a part of the Commonwealth': cf Harrison Moore, The Commonwealth of Australia, 2nd ed (1910) p 589."It follows that the ground advanced by the plaintiffs in sub-par (i) for restricting the scope of s 122 fails.
Sub-paragraph (ii) asserts that the legislative power conferred by s 122 is restricted by a requirement of "legal equality" including equality under laws of the Commonwealth. The proposition, if accepted, would invalidate the laws purportedly enacted under s 122 which treated Aboriginal children differently from other children. Whatever may be said of the policy which underlay the impugned provisions, it is impossible to derive a restriction of substantive equality to control the legislative power conferred by s 122. Even in the federal provisions of the Constitution, some legislative inequality is contemplated by s 51(xix) and (xxvi). Without attempting to ascertain the operation of these sub-paragraphs, they destroy the argument[32] that all laws of the Commonwealth must accord substantive equality to all people irrespective of race. In any event, there is nothing in the text or structure of the Constitution which purports so to restrict the power conferred by s 122 as to require substantive equality in the treatment of all persons within the territory. Indeed, prior to 1967[33], s 127 of the Constitution expressly discriminated against "aboriginal natives" in the taking of the census. The ground advanced by the plaintiffs in sub-par (ii) also fails.
Sub-paragraph (iii) asserts the existence of "an implied constitutional right to ... freedom of movement and association" which restricts the scope of s 122. No such right has hitherto been held to be implied in the Constitution and no textual or structural foundation for the implication has been demonstrated in this case. The freedom contended for is advanced as a corollary of that freedom of communication about government and political matters which is implied in the Constitution, especially by reason of ss 7 and 24. But the impugned provisions in this case were not directed to the impeding of protected communications and, if action taken under those provisions could have had that effect, the invalidity would strike at the action taken, not at the provision which purported to authorise the action.
Actions taken under the Ordinance or the removal regulations in the interests of an Aboriginal child could not be attacked on the ground that the interests of the child infringed an implied freedom of movement or association. And if actions were taken under, for example, s 16 of the Ordinance to achieve some other purpose and the action had the effect of impeding the freedom of communications about government or political matters implied in the Constitution, a question could arise as to the validity of the action. The discretion to take action would be confined by the requirement not to impair the freedom unreasonably or needlessly and the impugned provision would be construed conformably with the constitutional requirement. The constitutional requirement would not invalidate the impugned provision, but would confine the power which it confers.
It follows that, whether or not some such implication as that contended for in sub-par (iii) is to be found in the Constitution, its existence would not have invalidated any of the provisions impugned by the plaintiffs.
For these reasons, question 1 must be answered: No.
Question 2: Action for breach of a constitutional guarantee
In addition to seeking declarations of invalidity of the Acts, Ordinance and regulations referred to in the amended statements of claim, the plaintiffs seek damages for the removal and detention of the plaintiff children. Apart from any common law cause of action which may have accrued to the plaintiffs, they assert a right to damages by reason of a breach of "the constitutional rights, guarantees, immunities, freedoms and provisions" referred to in the sub-paragraphs which I have set out above. To raise the question whether a cause of action arises by reason of such a breach, question 2 was stated in the following terms:
"Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by -The Constitution creates no private rights enforceable directly by an action for damages. It "is concerned with the powers and functions of government and the restraints upon their exercise", as Dixon J said of s 92 in James v The Commonwealth[34]. The Constitution reveals no intention to create a private right of action for damages for an attempt to exceed the powers it confers or to ignore the restraints it imposes. The causes of action enforceable by awards of damages are created by the common law (including for this purpose the doctrines of equity) supplemented by statutes which reveal an intention to create such a cause of action for breach of its provisions. If a government does or omits to do anything which, under the general law, would expose it or its servants or agents to a liability in damages, an attempt to deny or to escape that liability fails when justification for the act done or omission made depends on a statute or an action that is invalid for want of constitutional support. In such a case, liability is not incurred for breach of a constitutional right but by operation of the general law. But if a government does or omits to do something the doing or omission of which attracts no liability under the general law, no liability in damages for doing or omitting to do that thing is imposed on the government by the Constitution.
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"
It follows that no right of action distinct from a right of action in tort or for breach of contract arises by reason of any breach of the protections claimed by the plaintiffs in the paragraphs of the respective amended statements of claim referred to in question 2. That question must be answered: No.
The remaining questions
As the remaining questions are posited on the condition that an affirmative answer is given to question 2 or, in the case of question 3, an affirmative answer to question 1 or 2, no answer to the remaining questions is required.
The plaintiffs must pay the defendant's costs.
DAWSON J.
The plaintiffs in these two matters are Aboriginal Australians who at the time of the events in question resided in the Northern Territory. Each of the first five plaintiffs in the first action and each of the plaintiffs in the second action complain that, when a child, he or she was "removed into and detained and kept in the care, custody and/or control of" the Chief Protector of Aboriginals of the Northern Territory or the Director appointed under the Aboriginals Ordinance 1918 (NT) ("the 1918 Ordinance") and thereafter kept in institutions or reserves away from his or her mother and family. The sixth plaintiff in the first action is alleged to be the mother of a child who was so treated. The first removal is alleged to have occurred in approximately 1925, the last in approximately 1949, and the last detention is said to have ended in 1960.
The plaintiffs contend that the 1918 Ordinance, to the extent that it authorised the actions complained of and the making of regulations empowering nominated officers to take the actions complained of, was beyond power and invalid. To the extent that Commonwealth statutes authorised the subordinate legislation (and the plaintiffs specify the Northern Territory Acceptance Act 1910 (Cth), the Northern Territory (Administration) Act 1910 (Cth) and the Northern Australia Act 1926 (Cth)), the plaintiffs say that those statutes were beyond power and invalid.
The basis upon which the plaintiffs allege invalidity is that the course of conduct of which they complain infringed certain constitutional rights or freedoms. Those rights or freedoms appear from par 29 of the amended statement of claim in the first action. It is there alleged of that course of conduct that:
"(i) A. it was contrary to an implied constitutional right to freedom from and/or immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth conferred in accordance with Ch III of the Constitution or of judicial power under laws of the Commonwealth;The plaintiffs also allege that the 1918 Ordinance and any laws authorising its enactment, to the extent that they authorised the conduct complained of, were not laws for the government of the Northern Territory. All of the laws have long since been repealed.
B. it purported to confer judicial power of the Commonwealth -
(1) on persons who were not appointed under or obliged or entitled to exercise the judicial power of the Commonwealth in accordance with Ch III of the Constitution or judicial power under laws of the Commonwealth;
(2) other than on Courts established under or in accordance with Ch III of the Constitution or under laws of the Commonwealth;
(ii) it was contrary to an implied constitutional right to and/or guarantee of legal equality including equality before and under, and equal protection of, the law, and in particular, laws of the Commonwealth and laws made pursuant to or under the authority of laws of the Commonwealth;
(iii) it was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association;
(iv) it was contrary to an implied constitutional right to freedom from and/or immunity from any law, purported law or executive act:
A. providing for or having a purpose, the effect or the likely effect of the destruction in whole or in part of a racial or ethnic group, or the language and culture of such a group;
B. subjecting the children of a racial or ethnic group, solely by reason of their membership of that group, to the legal disability of removal and detention away from the group; or
C. constituting or authorising the crime against humanity of genocide by, inter alia, providing for, constituting or authorising:
(i) the removal and transfer of children of a racial or ethnic group in a manner which was calculated to bring about the group's physical destruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely effect of causing serious mental harm to members of a racial or ethnic group; and
(iii) the deliberate infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part; ...
(vi) it was a law for prohibiting the free exercise of a religion contrary to section 116 of the Constitution."
Brennan CJ, whilst recognising that, as a general rule, it is inappropriate to reserve any point of law for the opinion of the Full Court before a determination of the facts which evoke consideration of that point of law or of the facts on which the answer to the question reserved may depend, held that the manifest preponderance of convenience required such a course to be taken in these cases[35]. He reserved a number of questions, but it is necessary for present purposes to set out only the first two of them because the need to answer the others depends upon an affirmative answer to those questions or one or other of them. The first two questions in the first action are:
"1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?The questions in the second action are not materially different.
2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by -
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"
Under s 122 of the Constitution, the parliament may make laws "for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth". The Northern Territory was surrendered to and accepted by the Commonwealth pursuant to an agreement with South Australia in 1907. That agreement was ratified and approved by the Northern Territory Acceptance Act 1910 (Cth). Pursuant to s 111 of the Constitution, the Northern Territory thereupon became, and remains, "subject to the exclusive jurisdiction of the Commonwealth".
Upon acquiring exclusive jurisdiction over the Northern Territory, the Commonwealth enacted the Northern Territory (Administration) Act 1910 (Cth). Section 13(1) of that Act empowered the Governor-General to make Ordinances having the force of law in the Northern Territory. Under s 13(2) and (3) Ordinances were required to be laid before the Houses of Parliament, either of which had the power of disallowance. Until 1947, the powers of the Governor-General remained essentially unchanged, although under the Northern Australia Act 1926 (Cth) the Northern Territory was divided into two territories (known as North and Central Australia) which were separately administered. In 1947 the Northern Territory (Administration) Act 1947 (Cth) amended the earlier Act of the same name to create a legislative council for the Northern Territory. A new section, s 4U, provided that "[s]ubject to this Act, the Council may make Ordinances for the peace, order and good government of the Territory." Further sections were added which provided that such Ordinances had no effect until assented to by the Administrator of the Northern Territory according to his discretion[36], and that the Governor-General had power to disallow any Ordinance within six months of the Administrator's assent[37]. The Administrator was not to assent to any Ordinance relating to "aboriginals or aboriginal labour" unless the Ordinance contained a clause suspending its operation until the signification of the Governor-General thereon[38].
It was pursuant to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) that the Governor-General made the 1918 Ordinance. The Ordinance was amended by the Governor-General before 1947 and by the legislative council after 1947 but little appears to turn on these amendments. The Ordinance was repealed by the Welfare Ordinance 1953 (NT), with effect from 13 May 1957. Whilst the plaintiffs also complain of regulations made under the regulation-making power in the 1918 Ordinance[39], it became clear in oral argument that their attack was upon ss 6, 7 and 16 of the 1918 Ordinance itself. Because, save possibly for s 7, no significance for present purposes attaches to the amendments to the 1918 Ordinance, it is convenient to deal with its provisions as they originally stood.
Section 6(1) provided:
"The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody."The section went on in sub-ss (2) and (3) to require persons upon whose premises an Aboriginal or "half-caste"[40] was present to facilitate his being taken into custody and to allow the powers of the Chief Protector to be exercised whether the Aboriginal or "half-caste" was under a contract of employment or not.
Section 7 provided:
"(1) The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of the Act of the State of South Australia in force in the Northern Territory entitled The State Children Act 1895, or any Act of that State or Ordinance amending or substituted for that Act.Section 7 was repealed by s 7 of the Aboriginals Ordinance (No 2) 1953 (NT) and replaced with the following:
(2) Every Protector shall, within his district, be the local guardian of every such child within his district, and as such shall have and may exercise such powers and duties as are prescribed."
"The Director is the legal guardian of all aboriginals."Section 16 provided:
"(1) The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.Part III of the 1918 Ordinance established a system of aboriginal reserves and institutions and the effect of ss 6, 7 and 16, particularly s 16, was to enable the Chief Protector to place Aboriginals in those reserves or institutions, if necessary against their will, and thereby to restrict their freedom of movement. Moreover, under s 11 of the 1918 Ordinance, the Administrator could declare any place to be a prohibited area so that it would be an offence for an Aboriginal or "half-caste" to be or remain within it. It was in purported exercise of the powers conferred by these provisions that the events of which the plaintiffs complain took place. However, s 6 made it clear that the powers of the Chief Protector under that section were to be exercised in the interests of Aboriginals and "half-castes" and whilst s 16 did not contain any explicit requirement that the powers which it conferred were to be exercised for the welfare of Aboriginals or "half-castes", it is clear enough that it was so circumscribed. In Waters v The Commonwealth[41], Fullagar J described the powers of the Director (as they had then become) under s 16 as "vast" and as likely to be exercised over those who are "weak and helpless". His Honour continued:
(2) Any aboriginal or half-caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance.
(3) Sub-section (1) of this section shall not apply to any aboriginal or half-caste -
(a) who is lawfully employed by any person; or
(b) who is the holder of a permit to be absent from the reserve or aboriginal institution in question; or
(c) who is a female lawfully married to and residing with a husband who is substantially of European origin or descent; or
(d) for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made."
"He must often act on his own opinion in circumstances of difficulty, and no court can substitute its opinion for his. But, on the other hand, the courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed."Fullagar J was of the view that under s 6 of the 1918 Ordinance the welfare of the Aboriginal concerned may have been the sole consideration, but that under s 16 it was not the only legitimate consideration[42]. It was his Honour's view that under that section the Director was entitled to have regard, not only to the welfare of the particular Aboriginal, but also to "the welfare of other aboriginals and the general interests of the community in which the particular aboriginal dwells"[43].
The precise scope of s 7 in constituting the Chief Protector (and then the Director) the legal guardian of Aboriginals is far from clear as was recognised by the Supreme Court of the Northern Territory in Ross & Ors v Chambers[44]. In that case Kriewaldt J expressed the view that the guardianship for which the section provided could not, as regards adult Aboriginals, embrace all the incidents which normally attach to the relationship of guardian and ward. However, it does not appear that anything turns upon that point in these cases.
The predecessor to the 1918 Ordinance was the Northern Territory Aboriginals Act 1910 (SA) which was continued in force by s 7 of the Northern Territory Acceptance Act 1910 (Cth) until repealed by the 1918 Ordinance. In relevant respects the 1918 Ordinance does not differ from the Act which it repealed. That Act was prompted by the plight of Aboriginals in the Northern Territory who were said to be "rapidly decreasing through disease, neglect, and insanitary conditions"[45]. The 1918 Ordinance would appear to have been motivated by similar concerns. The measures contemplated by the legislation of which the plaintiffs complain would appear to have been ill-advised or mistaken, particularly by contemporary standards. However, a shift in view upon the justice or morality of those measures taken under an Ordinance which was repealed over 40 years ago does not of itself point to the constitutional invalidity of that legislation and it is to the legal basis of the plaintiffs' claims that I now must turn. The legal basis of those claims concerns the constitutional validity of the provisions in issue, and does not raise the question whether the actions complained of were authorised by those provisions.
Section 122
Section 122 of the Constitution provides:
"The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."
The 1918 Ordinance was made under legislation which was reliant upon s 122 for its validity. The plaintiffs claim that, to the extent that it authorised the making of the 1918 Ordinance, or at least those parts of it of which they complain, the legislation did not constitute a law "for the government of any territory" within the meaning of s 122 and was invalid. The basis upon which they make that submission is that for a law to be for the government of a territory it must be reasonably capable of being seen as appropriate and adapted to the end of governing the territory. The plaintiffs argue that the 1918 Ordinance constituted an extraordinary intrusion upon fundamental rights and common law liberties, exhibiting "such callous disregard for familial unity and cultural cohesion in the Aboriginal community" that its purpose can only be seen as the arbitrary executive detention of Aboriginal citizens and the cultural and physical extinguishment or disintegration of that racial minority. The plaintiffs submit that such a law cannot be seen as appropriate and adapted to the government of the Northern Territory and for that reason is outside the scope of s 122.
That submission must be rejected. I have elsewhere expressed my view that no real assistance is to be gained by asking whether legislation is appropriate and adapted to some end when testing its validity under s 51 of the Constitution, at all events where a non-purposive power under that section is involved[46]. That test can have even less application where the power in question is, like s 122, a power to legislate for the government of a territory and where, unlike the powers conferred by s 51, the power is not confined by reference to subject matter. In Teori Tau v The Commonwealth[47] the Court described the legislative power conferred by s 122 as "plenary in quality and unlimited and unqualified in point of subject matter". That statement was approved by the whole Court in Northern Land Council v The Commonwealth[48]. It is in accordance with the view expressed by Barwick CJ in Spratt v Hermes[49] where he said:
"Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s 122 to 'for the government of the Territory'. This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States."And in Capital Duplicators Pty Ltd v Australian Capital Territory[50] Brennan, Deane and Toohey JJ described the power as "no less than the power which would have been conferred if the 'peace, order and good government' formula had been used". The result is that "all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connection between the law and the Territory"[51]. There can be no doubt of the existence of that nexus or connection in this case.
It is true that in Lamshed v Lake[52] Dixon CJ appears to have thought that s 122 may be viewed as conferring a power to legislate with respect to a subject matter. He said that it "is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the Territory". He continued: "The words 'the government of any territory' of course describe the subject matter of the power." Perhaps Dixon CJ was there using the expression "subject matter" in a different sense. If, as is incontrovertible, the power of the Parliament to legislate under s 122 is not confined to particular heads as it is under s 51, to speak of subject matter in that context can only be to advert to the requirement of some territorial nexus such as has been said to exist in the case of a State legislature which has power to legislate for the peace, order and good government of the State[53]. Nevertheless, it is unusual for the legislative power of a State to be described as a power with respect to a subject matter, namely, the State, and, setting to one side such qualifications as may possibly be found elsewhere in the Constitution, the scope of the legislative power conferred upon the Parliament by s 122 with respect to the territories is no less than that possessed by the State legislatures with respect to the States. As Mason J said in Berwick Ltd v Gray[54], it is:
"a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development. It is sufficiently wide to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate territorial administrative institutions ... yet on the other hand it is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions".The Commonwealth Parliament is, with respect to the territories, a completely sovereign legislature[55].
However, it seems clear that Dixon CJ had something else in mind when he spoke of the power under s 122 as being a legislative power with respect to a subject matter. The view which Dixon CJ expressed in Lamshed v Lake first appeared in Australian National Airways Pty Ltd v The Commonwealth[56]. There he indicated that in his opinion s 122 extended beyond conferring power to make laws for the government of a territory as a geographical or local unit and conferred power to legislate upon a national basis with respect to territories. It was in that sense that he viewed territories as the subject matter of a legislative power, apparently thinking that it was impossible to regard the national Parliament as being confined, even in relation to a territory, to the making of laws with only a local application. That is why in the passage in Lamshed v Lake to which I have already referred he used, and placed emphasis upon, the term "national Parliament". He did so in order to reject an argument that the legislative function which s 122 confers upon the Parliament is essentially that of a local legislature in and for a territory with a power territorially restricted to the territory. The latter was a view which had been accepted by Latham CJ and Williams J in Australian National Airways Pty Ltd v The Commonwealth[57] and was consonant with the earlier cases of Buchanan v The Commonwealth[58] and R v Bernasconi[59]. The view expressed by Dixon CJ would seem, with respect, to beg the question by referring to the Parliament in the context of s 122 as the "national Parliament", for in speaking of the power to make laws for the government of any territory, s 122 is referring to the government of a geographical unit and not of the nation as a whole. Moreover, the view taken by Dixon CJ in Lamshed v Lake regards the power conferred by s 122 as if it were the equivalent of a head of power under s 51 so that it becomes a power to make laws for the peace, order and good government of the Commonwealth with respect to territories. In accordance with this view, Dixon J in Australian National Airways Pty Ltd v The Commonwealth[60] thought that the incidental power under s 51(xxxix) might be invoked in aid of the power under s 122. Section 122 is not, however, expressed in the same terms as s 51 and is not made subject to the Constitution, as is s 51.
The only separate judgments, other than that of Dixon CJ, which were delivered in Lamshed v Lake were those of McTiernan, Williams and Kitto JJ. McTiernan J dissented due to the construction he placed on the statutory provision in question, and did not appear to accept the view of s 122 taken by Dixon CJ. Williams J, who also dissented, adhered to the view which he had expressed in Australian National Airways Pty Ltd v The Commonwealth. Kitto J, a member of the majority, appeared to accept the line of reasoning adopted by Dixon CJ.
However, in Spratt v Hermes[61] Kitto J recanted the opinion he had expressed in Lamshed v Lake. He pointed out that the first five chapters of the Constitution are concerned with working out the federal compact and belong to "a special universe of discourse". When one comes to Ch VI and s 122 "a fundamentally different topic is perceived". To Kitto J the change was "from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being 'a part of the Commonwealth'." Of course, as Kitto J recognised, in some senses a territory is part of the Commonwealth, but that term is of variable meaning and where it is used to describe the federation of States, a territory lies outside its concept. Kitto J continued[62]:
"Whether or not one or two of the miscellaneous provisions in Chap V apply to the territories - ss 116 and 118 have been suggested, eg in Lamshed v Lake[63], though further consideration has made me more doubtful than I was about them - it seems clear enough that the limitations which Chap I puts upon legislative power in the working of the federal system, anxiously contrived as they are with the object of keeping the Parliament to the course intended for it, are thrown aside as irrelevant when the point is reached of enabling laws to be made for the government of territories which stand outside that system; for s 122 uses terms apt to authorise the Parliament to make what provision it will for every aspect and every organ of territory government. The exercise of the judicial power which is a function of government of a territory is within the unrestricted authority thus in terms conferred. The Court decided quite early, in Buchanan v The Commonwealth[64], that the Constitution, addressing itself here to something different from that to which its first five chapters have been devoted, makes on the new topic a provision which is appropriately free from all concern with problems of federalism. The concern here is not only with 'a new consideration', as Isaacs J called it in R v Bernasconi[65], but with 'a disparate non-federal matter' as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v The Queen[66]."The difficulties to which Kitto J adverted were not considered in Attorney-General (WA) v Australian National Airlines Commission[67]. Lamshed v Lake was applied in that case but, although the majority may not have intended as much, the result of its application appears to suggest that any law having a beneficial effect in a territory falls within the power conferred by s 122. Gibbs J[68], in dissent, was provoked to remark that to give s 122 such an operation would "elevate it to a position of importance, even dominance, which it cannot possibly have been intended to occupy in the Constitution", an observation which went unanswered in the majority judgments.
Whilst the judgment of Kitto J in Spratt v Hermes does not reject the result in Lamshed v Lake, much of his reasoning is inconsistent with the reasoning which led to that decision. Lamshed v Lake, and the later decision in Attorney-General (WA) v Australian National Airlines Commission, stand, of course, as authorities of this Court, but it is possible at the same time to question whether they require the conclusion that Ch V of the Constitution has any application to the territories. Kitto J doubted whether ss 116 and 118 had any such application and they, along with s 109, are the only sections of Ch V that could possibly do so, because the other sections are confined to the States in express terms.
The application of s 118 to the territories would involve a somewhat curious construction. That section requires full faith and credit to be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. It is, of course, possible to apply s 118 to the territories but to do so immediately raises the question why, if it was intended to apply to them, full faith and credit should not have been required to be accorded in the States to the laws, etc, of the territories. The answer, upon the view expressed by Dixon CJ, is that it was unnecessary because territory laws are national laws. But the more convincing answer is that the territories do not enter the province of Ch V which is, after all, headed "The States". A construction of s 118 which required that full faith and credit be given in the territories to the laws, etc, of every State would rob that section of the mutuality or reciprocity it was obviously intended to have, for on no construction could s 118 require that full faith and credit be given in the States to the laws, etc, of the territories[69].
Similarly, s 109, which deals with inconsistency between State and Commonwealth laws, would appear to be dealing with inconsistency between State and federal laws and not to have in contemplation inconsistency between State and territory laws. And if, contrary to Lamshed v Lake, territory laws were confined to a territorial operation there would be no more need for a s 109 in relation to territory laws than there is need for such a section to resolve conflict between the laws of different States.
Section 116
When one comes to s 116 different considerations apply. That section provides:
"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."Various views have been expressed about the character of s 116 and its application to the legislative power of the Commonwealth under s 122[70]. However, there has been no real examination of the question or any attempt to reconcile the existing authorities, save perhaps in the judgment of Gibbs J in Attorney-General (Vict); Ex rel Black v The Commonwealth[71]. Gibbs J expressed his doubts, notwithstanding dicta to the contrary, whether s 116 had any application to laws made under s 122. He pointed out that the dicta are very difficult to reconcile with the decision in R v Bernasconi[72] and that if s 122 is limited by s 116, the latter section will have a much larger operation in the territories than in the States since s 116 is not expressed to bind the States.
In R v Bernasconi it was held that s 80 of the Constitution, which requires the trial on indictment of any offence against "any law of the Commonwealth" to be by jury, does not restrict the power of the Commonwealth to make laws under s 122. Section 80 is to be found in Ch III of the Constitution dealing with "The Judicature". Griffith CJ said[73]:
"In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories. Sec 80, therefore, relates only to offences created by the Parliament by Statutes passed in the execution of those functions, which are aptly described as 'laws of the Commonwealth.' The same term is used in that sense in sec 5 of the Constitution Act itself, and in secs 41, 61 and 109 of the Constitution. In the last mentioned section it is used in contradistinction to the law of a State. I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a State."Isaacs J said of s 80[74]:
"But the provision is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community. And that is its sole operation.Gavan Duffy and Rich JJ adopted the view of Griffith CJ.
When the Constitution, however, reaches a new consideration, namely, the government of territories, not as constituent parts of the self-governing body, not 'fused with it' as I expressed it in Buchanan's Case[75], but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power."
R v Bernasconi was not overruled in Lamshed v Lake nor in any other decision of this Court. Its reasoning is plainly inconsistent with a great deal that was said in Lamshed v Lake but there is much that is open to doubt in the latter decision as was recognised by Kitto J in Spratt v Hermes. There is even more that is open to doubt in Attorney-General (WA) v Australian National Airlines Commission. Section 80 imposes a requirement upon the Commonwealth in what would appear to be absolute terms, as does s 116. Section 80 appears in Ch III in general terms. Section 116 appears in Ch V which, at least by its heading, is confined in its application to the States. In my opinion, what was said of s 80 in R v Bernasconi applies a fortiori to s 116. I do not think that it is possible while R v Bernasconi stands to hold that s 116 restricts s 122. Nor do I think that the reasoning in Lamshed v Lake is necessarily to be preferred to that in R v Bernasconi.
The explanation why s 116, unlike the other sections in Ch V, is directed to the Commonwealth is that ultimately the matter with which those responsible for its drafting were concerned was the possibility that, because of the reference to "Almighty God" in the preamble to the Constitution, there might be a perception that the Commonwealth had the power to interfere in matters of religion. The clause which eventually became s 116 was originally drafted to include the States, but in order to emphasise the prohibition imposed upon the Commonwealth, the States were excluded. The amendment in that form was moved by Mr Higgins who said[76]:
"My idea is to make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights to the states where they are, to leave the existing law as it is."The appearance of s 116 in a chapter headed "The States" has often been regarded as anomalous, but in fact the section deals with the division of legislative power between the Commonwealth and the States within the federation. There is no suggestion of any desire to extend the restriction imposed upon Commonwealth federal power to the "disparate and non-federal matter"[77] dealt with in s 122. The States are not precluded by s 116 from doing those things which the Commonwealth is prohibited from doing and there is no reason to suppose that the Commonwealth was to be inhibited in a way in which the States are not in its capacity to legislate for the government of any territory.
For these reasons, I am of the opinion that the power of the Commonwealth Parliament to legislate under s 122 for the government of the territories is not restricted by s 116. I should add that, if I am wrong in that conclusion, I would agree with Gummow J, for the reasons given by him, that the 1918 Ordinance contains nothing which would enable it to be said that it is a law for prohibiting the free exercise of any religion.
Due Process of Law and the Judicial Power
of the Commonwealth
In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power[78]. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the 14th Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws[79]. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law. The few provisions contained in the Constitution which afford protection against governmental action in disregard of individual rights do not amount to such a general guarantee[80]. It follows that, in so far as the plaintiffs' claim is reliant upon a constitutional right to the due process of law, it must fail.
[322] 403 US 388 (1971). Note that a Bivens action cannot be brought against a federal agency, only individual agents: Federal Deposit Insurance Corporation v Meyer (1994) 127 L Ed 2d 308 at 322-323. As to the position in Ireland and New Zealand, where neither the Irish Constitution nor the New Zealand Bill of Rights expressly provides for remedies, see, respectively, The State (Quinn) v Ryan [1965] IR 70, and Simpson v Attorney-General ["Baigent's Case"] [1994] 3 NZLR 667.
[323] Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 605 per Stephen J.
[324] See as to the operation of the freedom of political discussion at all times and throughout the Commonwealth, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 75-76 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142 per Mason CJ, 168-169 per Deane and Toohey JJ, 215-217 per Gaudron J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122 per Mason CJ, Toohey and Gaudron JJ, 164-166 per Deane J; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 232 per Mason CJ, Toohey and Gaudron JJ, 257 per Deane J.
[325] See Cox v Hakes (1890) 15 App Cas 506 at 527 per Lord Herschell; R v Cannon Row Police Station (Inspector) (1922) 91 LJKB 98 at 106; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J.
[326] See generally with respect to the award of exemplary damages, Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129, 138-139 per Taylor J, 147 per Menzies J, 154 per Windeyer J, 160-161 per Owen J; Australian Consolidated Press v Uren (1966) 117 CLR 185. For cases where exemplary damages have been awarded in actions of trespass to the person see: Fontin v Katapodis (1962) 108 CLR 177; Lamb v Cotogno (1987) 164 CLR 1 and for false imprisonment see: Huckle v Money (1763) 95 ER 768; 2 Wils KB 205; Watson v Marshall and Cade (1971) 124 CLR 621.
[327] This alternative must be rejected, it relating to the test of characterisation rather than to testing whether a law infringes the implied freedom. See Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300 per Mason CJ, 388 per Gaudron J.
[328] (1992) 177 CLR 106 at 143.
[329] (1992) 177 CLR 106 at 143. See also at 235 per McHugh J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 299 per Mason CJ.
[330] (1992) 177 CLR 106 at 169. See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 76-77 per Deane and Toohey JJ; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 337 per Deane J.
[331] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 234-235.
[332] (1992) 177 CLR 106 at 235.
[333] (1992) 177 CLR 1 at 95. See also Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 217-218; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 387.
[334] (1994) 182 CLR 272 at 340 referring to Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283-284 per Lord Goff of Chieveley. See also Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 179 per Deane J.
[335] Cunliffe v The Commonwealth (1994) 182 CLR 272at 340 per Deane J. See also Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 179.
[336] See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51 per Brennan J.
[337] See, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 per Blackburn J; Aboriginal Legal Rights Movement Inc v South Australia ("Hindmarsh Island Case")(1995) 64 SASR 551 at 555 per Debelle J.
[338] (1912) 15 CLR 366 at 369.
[339] (1981) 146 CLR 559 at 580-581.
[340] (1943) 67 CLR 116 at 124.
[341] See Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR116 at 154 per Starke J.
[342] See Street v Queensland Bar Association (1989) 168 CLR 461 at 527-528 per Deane J, 569 per Gaudron J; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 184 per Deane and Gaudron JJ; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305 per Mason CJ, Deane and Gaudron JJ, 320 per Toohey J.
[343] See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349 per Dixon J. See also The Commonwealth v Tasmania (The Tasmanian Dam Case)(1983) 158 CLR 1 at 145 per Mason J, 282-283 per Deane J; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 184 per Deane and Gaudron JJ, 200 per Dawson and Toohey JJ; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303 per Mason CJ, Deane and Gaudron JJ.
[344] See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349-350 per Dixon J; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305 per Mason CJ, Deane and Gaudron JJ.
[345] (1943) 67 CLR 116 at 132.
[346] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116at 149 per Rich J. See also at 132 per Latham CJ, 155 per Starke J, 160-161 per Williams J.
[347] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116at 131 per Latham CJ.
[348] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR116 at 132 per Latham CJ.
[349] (1981) 146 CLR 559 at 579.
[350] Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 68 per Latham CJ.
[351] John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79 per Menzies J, 87 per Gibbs J, 93 per Mason J.
[352] (1967) 116 CLR 353 at 355-356. See also Musgrave v The Commonwealth (1937) 57 CLR 514 at 547-548 per Dixon J, 550-551 per Evatt and McTiernan JJ; Breavington v Godleman (1988) 169 CLR 41 at 118 per Brennan J, 151-152 per Dawson J.
[353] (1967) 116 CLR 353 at 355-356.
[354] However, on this point see The Commonwealth v Mewett unreported, High Court of Australia, 31 July 1997 per Gaudron J.
[355] Section 80 provides: "So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."
[356] See The Commonwealth v Mewett unreported, High Court of Australia, 31 July 1997 per Gaudron J.
[357] See Maguire v Simpson (1977) 139 CLR 362.
[358] See s 26(c) of the Acts Interpretation Act 1901 (Cth) which defines "Court exercising federal jurisdiction" to mean "any court when exercising federal jurisdiction" and to include "federal courts"; s 26(b) defines "Federal Court" to mean "the High Court or any court created by the Parliament". See also Cohen v Cohen (1929) 42 CLR 91 at 99 per Dixon J; Musgrave v The Commonwealth (1937) 57 CLR 514 at 531-532 per Latham CJ; Bainbridge-Hawker v The Minister of State for Trade and Customs (1958) 99 CLR 521 at 536-537 per Williams J; Pedersen v Young (1964) 110 CLR 162 at 165 per Kitto J, 167-168 per Menzies J, 169 per Windeyer J, 171 per Owen J.
[359] See, for example, Pedersen v Young (1964) 110 CLR 162 at 165-166 per Kitto J, 166 per Taylor J, 170-171 per Owen J; Bargen v State Government Insurance Office (Q) (1982) 154 CLR 318 at 322-323 per Stephen J; Fielding v Doran (1984) 59 ALJR 511 at 514 per Dawson J; 60 ALR 342 at 346.
[360] (1991) 174 CLR 1 at 51-52.
[361] (1964) 110 CLR 162.
[362] See Limitation Act 1969 (NSW), s 78 and Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1993 (Vic); Limitation of Actions Act 1936 (SA), s 38A; Limitation of Actions Act 1974 (Q), s 43A and Choice of Law (Limitation Periods) Act 1996 (Q); Choice of Law (Limitation Periods) Act 1994 (WA); Limitation Act 1974 (Tas), ss 32A-32D; Choice of Law (Limitation Periods) Act 1994 (NT); Limitation Act 1985 (ACT), ss 55-57.
[363] Pedersen v Young (1964) 110 CLR 162 at 167 per Menzies J.
[364] See Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39 per Dixon CJ; Parker v The Commonwealth (1965) 112 CLR 295 at 306 per Windeyer J; John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80-81 per Menzies J, 88 per Gibbs J, 95 per Mason J.
[365] (1965) 112 CLR 295 at 306.
[366] Breavington v Godleman (1988) 169 CLR 41 at 151 per Dawson J.
[367] (1964) 110 CLR 162 at 170.
[368] Constitution, s 75(iv).
[369] See, with respect to the different views as to the operation and effect of s 118 of the Constitution, Breavington v Godleman (1988) 169 CLR 41.
[370] See Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39 per Dixon J; Pedersen v Young (1964) 110 CLR 162 at 169-170 per Windeyer J and Breavington v Godleman (1988) 169 CLR 41 at 87-88 per Wilson and Gaudron JJ and the cases there cited.
[371] (1988) 169 CLR 41.
[372] (1991) 174 CLR 1.
[373] cf Gardner v Wallace (1995) 184 CLR 95.
[374] (1964) 110 CLR 162 at 165. However, contrast the statement at 168 per Menzies J where it was said: "It may well be a part of the office of ss 79 and 80 to make applicable in this Court some State statutes which, upon their true construction, apply of their own force only to courts governed by the laws of the State in which the Court is exercising its federal jurisdiction".
[375] (1953) 88 CLR 168 at 170.
[376] (1973) 129 CLR 65 at 88.
[377] John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 95 per Mason J.
[378] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 246.
[379] Lange v Australian Broadcasting Corporation, unreported, High Court of Australia, 8 July 1997 at 14-16.
[380] Lange, unreported, High Court of Australia, 8 July 1997 at 13.
[381] The 1918 Ordinance was repealed by the Welfare Ordinance 1953 (NT) with effect from 13 May 1957.
[382] Northern Territory Representation Act 1922 (Cth), s 5.
[383] Northern Territory Representation Act 1936 (Cth), s 2.
[384] Northern Territory Representation Act 1959 (Cth), s 3.
[385] Northern Territory Representation Act 1968 (Cth), s 4.
[386] Constitution Alteration (Referendums) 1977.
[387] cf Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527.
[388] See Commonwealth Electoral Act 1918, s 39(5), as amended by Commonwealth Electoral Act 1925 (Cth), s 2; Commonwealth Electoral Act 1949 (Cth), s 3; Commonwealth Electoral Act 1961 (Cth) s 4; Commonwealth Electoral Act 1962 (Cth), s 2; see also Northern Territory Electoral Regulations (SR No 154/1922), reg 22, as amended by Northern Territory Electoral Regulations (SR No 61/1949), reg 3.
[389] UN Gen Ass, Off Rec, 3rd Sess, Resolution 174 (A/180) (1948). The Convention was ratified by Australia on 8 July 1949 and entered into force on 12 January 1951. No legislation enacts the Convention as part of Australian law.
[390] Aboriginals Ordinance 1923 (NT), Aboriginals Ordinance 1924 (NT), Aboriginals Ordinance (No 2) 1924 (NT), Aboriginals Ordinance 1925 (NT), Aboriginals Ordinance 1927 (NT), Aboriginals Ordinance 1928 (NT), Aboriginals Ordinance (No 2) 1928 (NT), Aboriginals Ordinance 1930 (NT), Aboriginals Ordinance 1933 (NT), Aboriginals Ordinance 1936 (NT), Aboriginals Ordinance 1937 (NT), Aboriginals Ordinance (No 2) 1937 (NT), Aboriginals Ordinance 1939 (NT), Aboriginals Ordinance 1941 (NT), Aboriginals Ordinance 1943 (NT), Aboriginals Ordinance 1947 (NT), Aboriginals Ordinance 1953 (NT), Aboriginals Ordinance (No 2) 1953 (NT).
[391] The Administration Act was amended significantly by the Northern Territory (Administration) Act 1947 (Cth). This established a Legislative Council for the Territory and endowed it with the power to make Ordinances for the peace, order and good government of the Territory. Assent of the Administrator was required and the Governor-General had the power of disallowance. Subsequent amendments to the 1918 Ordinance and the 1953 Ordinance were made under this new system.
[392] Kruger v The Commonwealth (1995) 69 ALJR 885 at 889.
[393] See A v Hayden (1984) 156 CLR 532 at 584.
[394] Reproduced here are the questions reserved in Kruger & Ors v The Commonwealth. The questions in Bray & Ors v The Commonwealth are not materially different.
[395] 403 US 388 (1971).
[396] Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 at 702; cf at 705.
[397] James v The Commonwealth (1939) 62 CLR 339 at 369-370; McClintock v The Commonwealth (1947) 75 CLR 1 at 19; Nelungaloo Pty Ltd v The Commonwealth (1952) 85 CLR 545 at 567-568; Northern Territory v Mengel (1995) 185 CLR 307 at 350-353, 372-373. In certain circumstances member states may be liable to provide reparation for damage sustained by individuals by reason of breach by member states of European Union law: see Three Rivers District Council v Bank of England (No 3) [1996] 3 All ER 558 at 622-625.
[398] See Flint v The Commonwealth (1932) 47 CLR 274; McDonald v Victoria (1937) 58 CLR 146.
[399] Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349-350.
[400] Street v Queensland Bar Association (1989) 168 CLR 461 at 485-486, 502-503, 541. See also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 326-327. It has yet to be settled whether s 117 imposes a restraint upon federal legislative or executive action, and whether State action includes the enforcement of common law rules in a private action; cf New York Times Co v Sullivan 376 US 254 at 265 (1964); Tribe, American Constitutional Law, 2nd ed (1988), SS18-6.
[401] cf Amar, "Of Sovereignty and Federalism", (1987) 96 Yale Law Journal 1425 at 1485-1486.
[402] Davis and Pierce, Administrative Law Treatise, 3rd ed (1994), vol 3, SS19.5. Previous criticisms by Professor Davis appear throughout his work, Constitutional Torts, (1984), esp at 181-210.
[403] 28 USC SSSS1346, 2671-2680.
[404] 42 USC SS1983.
[405] Federal Deposit Insurance Corporation v Meyer 127 L Ed 2d 308 at 323 (1994). This case holds that Bivens actions run against individuals not federal agencies. In the present actions the plaintiffs sue the Commonwealth itself, not any officers of the Commonwealth.
[406] Lange v Australian Broadcasting Corporation, unreported, High Court of Australia, 8 July 1997 at 17-19.
[407] Leonhard v United States 633 F 2d 599 at 612-613 (1980); McSurely v Hutchison 823 F 2d 1002 (1987); Seber v Unger 881 F Supp 323 at 327 (1995).
[408] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612-613, 642-643.
[409] The office of Chief Protector of Aboriginals was replaced, by the Aboriginals Ordinance 1939 (NT), by that of the Director of Native Affairs. Nothing for present purposes turns upon this change.
[410] These definitions were amended on several occasions, lastly by s 3 of the Aboriginals Ordinance (No 2) 1953 (NT) which omitted any definitions of "half-caste" and substituted a new definition of "aboriginal".
[411] (1959) 100 CLR 664 at 669.
[412] (1959) 100 CLR 664 at 669-670.
[413] The judgment of this Court was upon a refusal of leave to appeal from a decision of Kriewaldt J reported [1958] NTJ 612. In R v Silvester Pilimapitjimiri [1965] NTJ 776, Bridge J discharged an order nisi for habeas corpus directing delivery of three Aboriginal children to their natural parents, from the custody of the respondents as foster parents. His Honour was exercising the equity jurisdiction of the Northern Territory of the Supreme Court in respect of infant custody and considered ([1965] NTJ 776 at 785-787) the accommodation in that jurisdiction of special considerations relating to the Aboriginal culture of the parties.
[414] (1951) 82 CLR 188 at 194.
[415] (1996) 186 CLR 140 at 168-169; see also at 188 per Dawson J, 230-232 per McHugh J, 291 per Gummow J.
[416] See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 41-45 and Australian Capital Television Pty Ltd v The Commonwealth ("ACTV") (1992) 177 CLR 106 at 133-136 and the cases cited in those passages.
[417] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 145, 155; Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83; ACTV (1992) 177 CLR 106 at 135, 209-210.
[418] ACTV (1992) 177 CLR 106 at 158-159.
[419] ACTV (1992) 177 CLR 106 at 135.
[420] (1992) 174 CLR 455 at 485-490.
[421] (1992) 174 CLR 455 at 485.
[422] Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959) at 193.
[423] See, eg, Holdsworth, A History of English Law, (1938), vol 10 at 649.
[424] (1992) 174 CLR 455 at 498-499. See now Kable v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814 at 837, 839, 844-846, 859-860; 138 ALR 577 at 609, 611-612, 619-622, 639-641.
[425] (1992) 174 CLR 455 at 502.
[426] (1992) 174 CLR 455 at 467.
[427] See Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192.
[428] Notably Priestley v Fowler (1837) 3 M & W 1 [150 ER 1030] (common employment) and Butterfield v Forrester (1809) 11 East 60 [103 ER 926] (contributory negligence).
[429] Cheatle v The Queen (1993) 177 CLR 541 at 560-561.
[430] Lange v Australian Broadcasting Corporation, unreported, High Court of Australia, 8 July 1997.
[431] Provisions such as s 1 of the Australia Act 1986 (Imp), s 2 of the European Communities Act 1972 (UK) and s 1 of the European Communities (Amendment) Act 1993 (UK) call into question the continuation of this as current reality: see Winterton, "The British Grundnorm: Parliamentary Supremacy Re-Examined", (1976) 92 Law Quarterly Review 591 at 604-608; Zines, Constitutional Change in the Commonwealth, (1991), Ch 3; and R v Transport Secretary; Ex p Factortame Ltd (No 2) [1991] 1 AC 603.
[432] Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 622-623.
[433] The words "other than the aboriginal race in any State" were omitted after carriage of a referendum by s 52 of the Constitution Alteration (Aboriginals) 1967 (Cth).
[434] See also s 25 of the Constitution.
[435] Crump, "How Do The Courts Really Discover Unenumerated Fundamental Rights? Cataloguing The Methods of Judicial Alchemy", (1996) 19 Harvard Journal of Law and Public Policy 795 at 837-838.
[436] (1958) 101 CLR 536 at 550.
[437] See also R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108-109, 109-110; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 166, 169.
[438] Nationwide News (1992) 177 CLR 1; ACTV (1992) 177 CLR 106.
[439] (1992) 177 CLR 106 at 212.
[440] (1996) 186 CLR 140.
[441] Unreported, High Court of Australia, 8 July 1997.
[442] (1992) 177 CLR 1.
[443] (1994) 182 CLR 104.
[444] (1994) 182 CLR 211.
[445] (1994) 182 CLR 272 at 328.
[446] 73 US 35 (1867).
[447] (1985) 157 CLR 290 at 303.
[448] Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 614-615.
[449] cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 175-176, 183-184.
[450] See Wik Peoples v Queensland (1996) 63 FCR 450 at 460-461.
[451] Historical Records of Australia, Series I, vol 19 (1923) at 252-255.
[452] Repealed by s 2 of and replaced by the other provisions of The Aborigines Act 1911 (SA).
[453] Amended by the Aborigines Protection Act 1886 (Vic) and repealed by the Aborigines Act 1890 (Vic).
[454] Repealed and replaced by the Aborigines Act 1897 (WA) and further replaced by the Aborigines Act 1905 (WA).
[455] Amended by the Aboriginals Protection and Restriction of the Sale of Opium Act 1901 (Q).
[456] Repealed and replaced by the Aborigines Protection Act 1909 (NSW).
[457] (1981) 146 CLR 559 at 603.
[458] See Cumbrae-Stewart, "Section 116 of the Constitution", (1946) 20 Australian Law Journal 207 at 211.
[459] (1943) 67 CLR 116 at 123.
[460] Church of the New Faith v Commissioner of Pay-roll Tax (Vict) (1983) 154 CLR 120 at 135-136.
[461] cf Employment Division, Department of Human Resources of Oregon v Smith 494 US 872 at 878-880 (1990).
[462] cf Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 653; Krygger v Williams (1912) 15 CLR 366 at 369.
[463] Australian Communist PartyvThe Commonwealth (1951) 83 CLR 1 at 273.
[464] cf Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Cole v Whitfield (1988) 165 CLR 360 at 401; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472-474.
[465] Kable (1996) 70 ALJR 814; 138 ALR 577.
[466] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 33, 46, 58, 65, 71.
[467] Chu Kheng Lim (1992) 176 CLR 1 at 55.
[468] 63 & 64 Vict c 12 (Imp).
[469] (1958) 99 CLR 132 at 140-141. The distinction between those territories which were once parts of a State and thus addressed by covering cl 5, and external territories was also drawn by Fullagar J in Waters v The Commonwealth (1951) 82 CLR 188 at 192.
[470] Lamshed v Lake (1958) 99 CLR 132 at 142 per Dixon CJ.
[471] Lamshed v Lake (1958) 99 CLR 132 at 144. Webb and Taylor JJ agreed with Dixon CJ.
[472] Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 272 per Brennan, Deane and Toohey JJ; Svikart v Stewart (1994) 181 CLR 548 at 572-573 per Toohey J, 581 per Gaudron J; see also Spratt v Hermes (1965) 114 CLR 226 at 242 per Barwick CJ.
[473] (1965) 114 CLR 226 at 250.
[474] (1958) 99 CLR 132 at 153-154.
[475] Paterson v O'Brien (1978) 138 CLR 276.
[476] (1994) 181 CLR 548 at 566.
[477] The Commonwealth v Woodhill (1917) 23 CLR 482 at 486-487; Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 at 124-125.
[478] R v Phillips (1970) 125 CLR 93 at 126; Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 at 126; and see Official Record of the Debates of the Australasian Federal Convention (Melbourne), 28 January 1898, vol 4 at 259.
[479] (1975) 132 CLR 164 at 169-170, 174.
[480] cf Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 276, 279, 286-287.
[481] Capital Duplicators (1992) 177 CLR 248 at 279.
[482] Lamshed v Lake (1958) 99 CLR 132 at 142.
[483] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 123, 156-157; Lamshed v Lake (1958) 99 CLR 132 at 143; Spratt v Hermes (1965) 114 CLR 226 at 250; Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570; Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 576, 618, 621, 649; cf Coe v Commonwealth of Australia (1979) 53 ALJR 403 at 408; 24 ALR 118 at 129 and Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 593-594.
[484] Capital Duplicators (1992) 177 CLR 248 at 272, 279, 288, 290.
[485] (1958) 99 CLR 132 at 141-144, 153-154. Webb and Taylor JJ agreed with Dixon CJ.
[486] Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 684-685.
[487] Australian Communist Party (1951) 83 CLR 1 at 193, 262-263; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275-276.
[488] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 70 ALJR 743 at 747, 750, 755-756, 764-765; 138 ALR 220 at 226, 230, 237, 249.
[489] In Ffrost v Stevenson (1937) 58 CLR 528 at 558, Latham CJ expressed the view that the effect of s 122 is that the Parliament has "exclusive power" within the meaning of s 52(iii), so that, by the operation of s 52(iii) in relation to s 122, the Parliament "would appear to have power to make laws for the Commonwealth with respect to the government of New Guinea". It is unnecessary to pursue this question in the present case.
[490] (1956) 94 CLR 254 at 290. The decision of the High Court was followed by the enactment of the Conciliation and Arbitration Act 1956 (Cth). Section 49 thereof deemed certain orders of the old Commonwealth Court of Conciliation and Arbitration to be orders of the new Commonwealth Industrial Court.
[491] (1915) 19 CLR 629.
[492] (1913) 16 CLR 315.
[493] Spratt v Hermes (1965) 114 CLR 226 at 275.
[494] See Buchanan v The Commonwealth (1913) 16 CLR 315 at 324, 333-334.
[495] Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466-467.
[496] LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.
[497] (1929) 42 CLR 582 at 585. See also Dixon CJ's remarks in Chapman v Suttie (1963) 110 CLR 321 at 329-330. Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 161-162 conclude that all the common law (including private international law) operating in a territory has a statutory basis.
[498] (1957) 95 CLR 529 at 545; [1957] AC 288 at 320.
[499] (1958) 99 CLR 132 at 142.
[500] (1965) 114 CLR 226.
[501] The authorities supporting that conclusion were later collected by Gibbs J in Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 627.
[502] (1971) 125 CLR 591.
[503] cf Harris v The Queen (1954) 90 CLR 652 at 655, where Dixon CJ, Fullagar, Kitto and Taylor JJ said:
"The jurisdiction of this Court to entertain the appeal arises, if not under the Constitution, at all events under s 64 of the Papua and New Guinea Act 1949-1950."
[504] (1971) 125 CLR 591 at 628 per Gibbs J; cf at 597, 600 per Barwick CJ, 602 per McTiernan J, 624 per Walsh J.
[505] (1956) 94 CLR 254 at 290.
[506] Berwick Ltd v Gray (1976) 133 CLR 603 at 608; see also Capital Duplicators (1992) 177 CLR 248 at 272, 288.
[507] The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 676.
[508] See Ex parte Goldring (1903) 3 SR (NSW) 260, in which it was held, before the establishment of the High Court, that a State court had no power to grant mandamus against a federal officer.
[509] Harris v Caladine (1991) 172 CLR 84.
[510] See Harris v Caladine (1991) 172 CLR 84 at 139-140; Chemerinsky, Federal Jurisdiction, 2nd ed (1994), SS4.5.2.
[511] (1915) 19 CLR 629 at 637-638.
[512] Leeth v The Commonwealth (1992) 174 CLR 455 at 469, 475, 486, 501 and see, generally, Polyukhovich v The Commonwealth (1991) 172 CLR 501.
[513] (1937) 58 CLR 528 at 592.
[514] Mason, "The Limitation of Appeals to the Privy Council from the High Court of Australia, from Federal Courts other than the High Court, from the Supreme Courts of the Territories and from Courts exercising Federal Jurisdiction", (1968) 3 Federal Law Review 1 at 17. This followed from the view taken in Parkin and Cowper v James (1905) 2 CLR 315 at 330-332 of the scope of the Judicial Committee Act 1844 (Imp) (7 & 8 Vict c 69); see Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194 at 212-213.
[515] The section thus dealt also with appeals from federal courts other than the High Court. The reasoning in the later decision The Commonwealth v Queensland (1975) 134 CLR 298 at 314-316, 328, indicates that Ch III operated to limit the prerogative by extinguishing it in respect of matters arising thereunder, save for the preservation thereof in respect only of certain High Court appeals.
[516] The ACT Supreme Court (Transfer) Act 1992 (Cth) provided for the transfer of responsibility for the Supreme Court of the Australian Capital Territory from the Commonwealth to the Territory. Section 8 thereof inserted s 48D in the Australian Capital Territory (Self-Government) Act 1988 (Cth). The effect of this is that any enactment of the Legislative Assembly of the Territory relating to removal from office of a judicial officer must follow the particular procedures therein specified, including an adverse report by a judicial commission and determination by the Assembly that the facts so found by the commission amount to misbehaviour or physical or mental incapacity identified by the commission.
[517] (1971) 125 CLR 591 at 612.
[518] (1975) 134 CLR 298.
[519] The Commonwealth v Queensland (1975) 134 CLR 298 at 313-315, 327-329. See also Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 116; Harris v Caladine (1991) 172 CLR 84 at 109, 120.
[520] Theophanous (1994) 182 CLR 104 at 141. See also Kable (1996) 70 ALJR 814 at 839, 844-846, 859-860; 138 ALR 577 at 611-612, 619-622, 639-641.
[521] Lange v Australian Broadcasting Corporation, unreported, High Court of Australia, 8 July 1997 at 19.
[522] Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 486.