Newcrest Mining (WA) Ltd v the Commonwealth

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

NEWCREST MINING (WA) LIMITED and BHP MINERALS LIMITED v THE COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE (Matter No S 18/96); NEWCREST MINING (WA) LIMITED v THE COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE (Matter No S 16/92)
Constitutional law - Mining

(1997) 190 CLR 513

14 August 1997
Constitutional law - Mining

Constitutional law—Validity of proclamations made under National Parks and Wildlife Conservation Act 1975 (Cth)—Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution. Constitutional law—Characterisation of a law capable of dual characterisation—Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation. Constitutional law—Meaning of "acquisition of property" in s 51(xxxi) of the Constitution—Whether proclamation prohibiting mining effects an acquisition of mining tenements. Mining—Validity of mining leases—Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth)—Whether right of renewal in existence. Mining—Validity of mining leases—Whether government approval or authority necessary for renewal of particular lease—Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth). Constitution of the Commonwealth, ss 51(xxxi), 122. Northern Territory (Self-Government) Act 1978 (Cth) ss 50(2), 70. Northern Territory (Administration) Act 1910 (Cth). National Parks and Wildlife Conservation Act 1975 (Cth). National Parks and Wildlife Conservation Amendment Act 1987 (Cth). Mining Ordinance 1939 (NT). Mining Act 1980 (NT).

Hearing

CANBERRA, 5-7 November 1996 (hearing), 14 August 1997 (decision)
#DATE 14:8:1997

Representation:
Matter No S 18/96
J J Spigelman QC with G A Flick SC for the first and second appellants (instructed by Clayton Utz)

B J Shaw QC with S J Gageler for the first and second respondents (instructed by Australian Government Solicitor)

Intervener:

T I Pauling QC with T J Riley and R J Webb intervening for the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)

Orders

Order:
Matter No S 18/96
1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in lieu thereof:
(a) declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 78-89 was still in force;
(b) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 23, 25-28, 751-756 was still in force;
(c) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), neither of the mining leases MLN 19 nor MLN 24 was any longer in force; and
(d) order that the costs of Newcrest Mining (WA) Limited and of BHP Minerals Limited of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.

3. Liberty to apply on 7 days notice.

Matter No S 16/92
1. In respect of the matter reserved by order of the Chief Justice made on 21 May 1996, namely the question whether the proclamations made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) published in the Commonwealth of Australia Gazette on 12 June 1987, 22 November 1989 and 24 June 1991 are invalid by reason of s 51(xxxi) and s 122 of the Constitution of the Commonwealth:
(a) Declare that in respect of mining leases MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(b) Declare that in respect of mining leases MLNs 23, 25-28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(c) Order that the costs of Newcrest Mining (WA) Limited of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.
(d) Liberty to apply on 7 days notice.

Decision

BRENNAN CJ.

An appeal from a judgment of the Full Court of the Federal Court and a question reserved for the opinion of the Full Court of this Court were heard together. The issues for determination relate to a number of mining leases that were held by or on behalf of the appellant ("Newcrest") - the plaintiff in the proceedings - over parcels of land in the Northern Territory. When the proceedings commenced, the original terms of some leases had expired but the original terms of other leases were current. However, the Northern Territory had purported to renew the leases the original terms of which had expired. The terms of the purportedly renewed leases and the terms of the other leases had not expired when two proclamations were made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act") whereby the areas of those leases were added to and included in Kakadu National Park. For the purposes of these proceedings, the leases may be divided into two classes: one class[1] consists in the leases which had been purportedly renewed by the Northern Territory on the expiry of their original terms, the areas of which were purportedly added to and included in the extension of Kakadu National Park by a proclamation dated 21 June 1991 and published in the Gazette of 24 June 1991; the other[2] consists in the leases which had not expired when a proclamation dated 13 November 1989 and published in the Gazette of 22 November 1989 purported to add the areas of those leases to and include them in Kakadu National Park.

In relation to the first class, a question arises as to whether the purported renewal of those leases by the Northern Territory was effective to vest in Newcrest the interest of a lessee at the time when the proclamation of 21 June 1991 was made. If the answer to this question is in the affirmative, the next question is whether that proclamation effected an acquisition of Newcrest's property without just terms and, if so, whether the proclamation is invalid for want of compliance with the requirements of s 51(xxxi) of the Constitution. The same question arises mutatis mutandis in relation to the second class of leases. Newcrest submits that the proclamation of 13 November 1989 is invalid as being an acquisition of its property in the leases otherwise than on just terms.

The grant and purported renewal of the leases

All leases had been granted prior to 1978 pursuant to the provisions of the Mining Ordinance 1939-1972 of the Northern Territory. Some were gold-mining leases, others were mineral leases. Leases of both kinds were granted over "Crown land" as defined in the Mining Ordinance[3]. The definition of "Crown land" prior to 1978 included, subject to certain immaterial exceptions, "all land of the Crown or of the Commonwealth". The Mining Ordinance contained provisions relating to the renewal of leases. Section 42 provided:

" The term of a gold-mining lease shall not exceed twenty-one years from the first day of January next preceding the approval thereof, but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of twenty-one years, subject to the Ordinances and regulations relating to gold-mining leases in force at the time of renewal."

Section 49 contained the like provisions applicable to mineral leases.

In 1978, the Northern Territory (Self-Government) Act ("the Self-Government Act")was enacted. Although, subject to certain exceptions, the Commonwealth's interests in land and the Commonwealth's interests in respect of minerals in the Territory were to be vested in the Territory by sub-ss (2) and (4) respectively of s 69, s 70 authorised the publication of a Gazette notice declaring that any interest in land that was to be vested in the Territory by s 69(2) be acquired by the Commonwealth. On 22 June 1978, s 70 came into operation. A notice was published in the Gazette on 29 June 1978 pursuant to which the Commonwealth acquired on 1 July 1978[4] the fee simple interest in the lands over which Newcrest's leases had been granted. But s 70 did not expressly confer power on the Commonwealth to acquire the interest in respect of minerals that was to be vested in the Territory by s 69(4). This difference in drafting between the two sections is explicable by the need to express in s 69(4) an intention to vest in the Territory the mineral interests of the Commonwealth that would otherwise have been reserved to it under other legislation. The acquisition of mineral interests was then covered in s 70 by the words "an interest less than, or subsidiary to, such an interest" (being the interest in land to be vested under s 69(2)). That extension of the power of acquisition was sufficient to include an interest in minerals lying on or in land acquired by the Commonwealth under s 70.

Although the Commonwealth acquired the fee simple in the land the subject of Newcrest's leases, it acquired that interest subject to the leases. That was the effect of s 70(6) of the Self-Government Act which provided:

" Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory."

Thus, on 1 July 1978, the Commonwealth held the reversions expectant on the determination of the respective leases, Newcrest holding the leases "from the Commonwealth on the same terms and conditions as those on which they were held from the Territory".

Newcrest submitted that, notwithstanding the acquisition by the Commonwealth of a fee simple interest in the lands the subject of Newcrest's leases, Newcrest was entitled to renewal of those leases under ss 42 and 49 of the Mining Ordinance. The submission was based on the contention that the right to renewal was a term of each lease and on the effect of s 57(1) of the Self-Government Act which provided:

" Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."

However, it appears that there was no term conferring a right to renewal contained in any of the leases. The learned trial judge found[5]:

" Although no formal leases were executed, the parties seem to have proceeded upon the common assumption that the terms and conditions of the mining leases were as defined in the forms prescribed by reg 102A of the Mining Regulations made under the Mining Ordinance. The point was made by the respondent that the form of lease contained no provision for renewal at the expiry of its term."

The point was well made. Moreover, even if the statutory rights to renewal contained in ss 42 and 49 of the Mining Ordinance were treated as a term of the respective leases, the right conferred thereby would not have been an absolute right to have the leases renewed but a right to renew "subject to the Ordinances and regulations ... in force at the time of renewal". By the time when the term of any lease expired after 1 July 1978, the definition of "Crown land" had been amended in s 7 of the Mining Ordinance by excluding all land "of the Commonwealth"[6]. In consequence of that amendment, no renewal under the Mining Ordinance could have been granted over land which had been acquired by the Commonwealth. Section 8(2) of the Transfer of Powers (Self- Government) Ordinance 1978 (NT), a transitional provision which preserved accrued rights, was relied on to support Newcrest's submission of an accrued right to renewal. But the only relevant rights which Newcrest had had were statutory rights the content of which depended upon the actual state of the Mining Ordinance in force at the time of renewal. Section 8(2) preserved no right to renewal enforceable against the Commonwealth.

The complex of statutory provisions above referred to effectively denied Newcrest the benefit of the statutory right to renew any lease expiring after the Commonwealth acquired the fee simple in the relevant land. Notwithstanding the Commonwealth's acquisition of the relevant land, the Territory purported to renew the leases in the class first referred to. Moreover, the purported renewal of one of these leases[7] occurred at a time when the relevant land had been incorporated into a declared conservation zone under a proclamation made pursuant to s 8A of the Conservation Act. Section 8B(1)(b) of that Act prohibited renewal of a gold mining or mineral lease "except with the consent in writing of the Minister and subject to such conditions as the Minister determines". The Minister was the Minister administering the Conservation Act. He gave no consent to the renewal and an attempt by Newcrest to clothe the Northern Territory officials with the cloak of agency for the Minister rightly failed at the trial.

Newcrest sought to raise a claim to compensation for refusal of consent under s 8B(2) of the Conservation Act, the relevant parts of which read:

" A person adversely affected by the refusal of the Minister to give consent ... under paragraph (1)(b) is entitled to be paid reasonable compensation by the Commonwealth."

However, on the facts of the case, it seems that the Minister did not decide to refuse consent. Assuming that the Minister had had power to renew the expired lease, Newcrest's case can be put no higher than this: the Minister failed to give a decision on renewal. A failure to give a decision is not a refusal under s 8B(1)(b) giving rise to an entitlement to compensation under s 8B(2). Section 8B(2) is conditioned on an actual refusal, not on a constructive refusal of consent.

It follows that, when the proclamation of 21 June 1991 was made, the leases in the class first referred to had expired. The proclamation affected no current interest of Newcrest and was effective to include the land to which it referred in Kakadu National Park.

The proclamations under the Conservation Act

Section 7 of the Conservation Act authorised the Governor-General by proclamation to declare an area to be a national park and to assign a name to the park, the area of the park being taken to include the subsoil to the depth specified in the proclamation. By a proclamation of 5 April 1979, the Governor-General declared an area set out in a schedule to the proclamation to be the Kakadu National Park and a depth of 1000 metres below the surface was specified to be within the park. The term "Kakadu National Park" was defined[8] to mean "the area for the time being declared under section 7 to be the park of that name". Section 7(8) of the Conservation Act contained a power to amend a proclamation declaring an area to be a national park. It provides:

"Subject to this section, the Governor-General may, by Proclamation, revoke or amend a Proclamation made under this section."

The proclamations of 13 November 1989 and 21 June 1991 further amended the schedule to the proclamation which had declared the areas included in Kakadu National Park. The proclamation of 13 November 1989 added the land over which Newcrest held unexpired leases; the proclamation of 21 June 1991 added the land over which Newcrest had held leases, the terms of which had then expired.

Prior to the making of these proclamations, the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Conservation Amendment Act") had amended the Conservation Act by, inter alia, inserting sub-s (1A) in s 10:

"No operations for the recovery of minerals shall be carried on in Kakadu National Park".

The phrase "operations for the recovery of minerals" was given a new definition in a section inserted into the Conservation Act as s 3A. The phrase means, inter alia, "any operations or activities for or in connection with, or incidental to, the mining ... or recovery of minerals". The proclamations of 13 November 1989 and of 21 June 1991 ("the impugned proclamations") did not effect an acquisition of Newcrest's leaseholds nor did they effect an acquisition of whatever property Newcrest may have had in the subjacent minerals[9]. However, by adding to Kakadu National Park the lands over which Newcrest's leases subsisted, the impugned proclamation of 13 November 1989 sterilised the benefits which Newcrest might otherwise have derived from possession of those leases. Did the sterilisation amount to an acquisition of property?

Under its mining leases, Newcrest had the right exercisable against the Commonwealth as reversioner to mine for, extract and take away minerals from the leased land during the term of the lease[10]. When that land was included in Kakadu National Park, Newcrest's rights to carry on operations for the recovery of minerals were extinguished.

By force of the amendments of the Conservation Act effected by the Conservation Amendment Act, the Commonwealth was left in undisturbed possession of the minerals on and under the land included in Kakadu National Park. The Commonwealth's interest in respect of the minerals was enhanced by the sterilisation of Newcrest's interests therein. In my opinion, by force of the impugned proclamations, the Commonwealth acquired property from Newcrest[11]. The property consisted not in a right to possession or occupation of the relevant area of land nor in the bare leasehold interest vested in Newcrest but in the benefit of relief from the burden of Newcrest's rights to carry on "operations for the recovery of minerals".

Section 7 of the Conservation Amendment Act provided that -

"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."

Section 7 was not inserted into the Conservation Act. Its effect is expressly restricted to the enactment of the Conservation Amendment Act. Although s 7 negates a right to compensation for a loss of which "the enactment of this Act" is the causative event, the context of that Act shows that the losses to which s 7 is directed are losses produced by the provisions of that Act. The Conservation Amendment Act is directed solely to the prohibition of operations for the recovery of minerals within Kakadu National Park. It would attribute an adventitious operation to s 7 if it were held to apply only in relation to land that had been included in Kakadu National Park up to the time of the enactment and not to apply to land included in the Park after that time. I would therefore hold that s 7 precluded any claim for compensation in respect of the Commonwealth's acquisition of Newcrest's property resulting from the sterilisation of Newcrest's right to carry on operations for the recovery of minerals under its subsisting leases.

There is no doubt but that the interests which Newcrest had in the unexpired leases were "property" within the meaning of that term in s 51(xxxi) of the Constitution. Equally, the interests which Newcrest claimed to have and which would have been vested in it had its other leases been validly renewed would have been "property".

The validity of the Conservation Amendment Act

If, by reason of s 7 of the Conservation Amendment Act or otherwise, the purported acquisition of property effected by the sterilisation of the mining rights of Newcrest under its subsisting leases were not on just terms, the validity of the acquisition is in question. The Commonwealth acquired Newcrest's property by the combined operation of the impugned proclamations and the Conservation Amendment Act. Thus the questions for determination are whether the Parliament of the Commonwealth had legislative power to enact the Conservation Amendment Act and whether, that Act being on the statute book, the Governor-General had power to make the impugned proclamations.

Two provisions were invoked by Newcrest to invalidate the acquisition. The first was s 50(2) of the Self-Government Act which reads as follows:

"... the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51 (xxxi) of the Constitution would apply, shall not be made otherwise than on just terms."

The second provision is s 51(xxxi) of the Constitution which reads:

" The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."

If s 50(2) of the Self-Government Act be construed as a general provision imposing upon the Executive Government of the Commonwealth an obligation to pay just compensation for any acquisition of property in the Northern Territory, s 7 of the Conservation Amendment Act is a special provision which pro tanto repeals s 50(2). If s 50(2) be construed as imposing upon the Executive Government of the Northern Territory an obligation to pay just compensation for acquisitions it makes or authorises, it is irrelevant to the present case. That leaves for consideration s 51(xxxi) of the Constitution.

It was not contested by Newcrest - indeed, it was alleged by Newcrest in its amended statement of claim - that the Parliament had power under s 51(xxix) of the Constitution to forbid mining in Kakadu National Park in implementation of the Commonwealth's obligations under the Convention for the Protection of the World Cultural and Natural Heritage[12]. The implementation of the Commonwealth's obligations under that Convention, which was effected by prohibiting operations for the recovery of minerals in Kakadu National Park, was a purpose for which the Parliament had power to make laws. But if the sole source of legislative power to enact a law prohibiting mining in Kakadu National Park were the external affairs power, any acquisition of property that was involved in effecting the prohibition would have had to satisfy the requirements of par (xxxi). Paragraph (xxxi) of s 51 abstracts from most of the other powers conferred by s 51 the power to make laws for the acquisition of property for the purposes stated in those other powers. As Dixon CJ said in Attorney-General (Cth) v Schmidt[13]:

"The decisions of this Court show that if par (xxxi) had been absent from the Constitution many of the paragraphs of s 51, either alone or with the aid of par (xxxix), would have been interpreted as extending to legislation for the acquisition of land or other property for use in carrying out or giving effect to legislation enacted under such powers. The same decisions, however, show that in the presence in s 51 of par (xxxi) those paragraphs should not be so interpreted but should be read as depending for the acquisition of property for such a purpose upon the legislative power conferred by par (xxxi) subject, as it is, to the condition that the acquisition must be on just terms."

The Conservation Amendment Act is a law which effects an acquisition of property and, in so far as it is a law with respect to external affairs, it must find support in s 51(xxxi) or it is invalid[14]. A law which, like the Conservation Amendment Act, does not provide just terms for an acquisition can find no support in s 51(xxxi) but it may be supported by some other legislative power. The Commonwealth invokes s 122 as a legislative power available to support the Conservation Amendment Act.

Section 122 of the Constitution - its scope and limitations

In its submissions, Newcrest sought to identify the law for which support had to be sought as the Conservation Act. That is too imprecise an identification. The Conservation Act contains many provisions that are irrelevant to the acquisition of property by the Commonwealth and unconnected with the provisions under which Newcrest's property was acquired. What must be identified are the relevant acquisition and the precise provisions which effected it. Neither the subsisting leases nor Newcrest's rights of possession or occupation under those leases were acquired. What was acquired was the benefit of the extinguishment of Newcrest's rights to carry on operations for the recovery of minerals. Those rights were acquired by operation of the Conservation Amendment Act and it is that Act for which support must be found in s 122 if the acquisition is to be held to be valid. In so far as the acquisition was effected by the impugned proclamations, the same constitutional support is needed to uphold their validity. In other words, if the Conservation Amendment Act be valid in its application to the areas included in Kakadu National Park by the impugned proclamations, the proclamations attract the sterilising effect of s 10(1A) of the Conservation Act to those areas. Of course, if the Conservation Amendment Act be invalid, the impugned proclamations would effectively include the areas to which they relate within Kakadu National Park but the right to carry on operations for the recovery of minerals would not be affected. So the question is this: does s 122 of the Constitution support the provisions of the Conservation Act inserted by the Conservation Amendment Act?

Although the Conservation Act is intended to apply throughout Australia and, in so far as it does, must find support in the Constitution other than s 122, the Conservation Amendment Act may find support also in s 122. The position is stated by Windeyer J in Spratt v Hermes[15]:

"If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."

The provisions of the Conservation Amendment Act are expressed to apply only to areas of land in Kakadu National Park. As s 122 requires no more to attract it than a sufficient nexus between the law and the territory[16], those provisions are a law which attracts the support of s 122 unless some further consideration limits the operation or scope of s 122.

To repel the conclusion that s 122 supports the Conservation Amendment Act, one or other of two propositions must be established: either (i) no law which would find support in s 51(xxxi) but for a failure to provide just terms can be supported by another head of power; or, (ii) the requirement of just terms that qualifies the power conferred by s 51(xxxi) implies that the power to make laws for the compulsory acquisition of property is abstracted from s 122 as it is abstracted from most of the other powers conferred by s 51. Both propositions are inconsistent with settled constitutional doctrine.

(i) Two heads of power

When a law is supportable by a constitutional power, it is immaterial to its validity that, if some particular requirement were met, it would also be supported by a second constitutional power. So long as the Parliament has power to enact a law, from whatever provision of the Constitution that power be derived, the law is valid. As Starke J said in Ex parte Walsh and Johnson; In re Yates[17]:

"A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source derived. [The section under challenge] can be justified, in my opinion, if it is competent under any of the powers vested in Parliament, whatever the title of the Act, and whatever indications there are in the Act as to the precise power under which it may be suggested that Parliament purported to act." (Emphasis added.)

It follows that, unless there be some reason for denying the sufficiency of the power conferred by s 122 to support the Conservation Amendment Act, the Conservation Amendment Act is valid.

(ii) Section 122 and the requirement of just terms

Covering cl 3 of the Constitution provided for the uniting of the people of the several States "in a Federal Commonwealth under the name of the Commonwealth of Australia". The Constitution was "designed to fulfil the objectives of the federal compact"[18]. Those objectives necessarily included the prescription of the organs of government and their constitution (both Commonwealth and State), the prescription of the powers which the Commonwealth and State governments were to exercise respectively in creating, administering and applying the laws of the several parts of the Commonwealth, the regulation of the financial and trading relationships between the Commonwealth, the States and their people and the prescription of other powers and functions which were to belong solely to the new polity of the Commonwealth. Parts I to IV of Ch I, Chs II and III, certain sections in Ch V and Ch VII deal with the organs of government and their constitution. Part V of Ch I and some other sections of Ch V deal with the legislative powers of the Commonwealth and the respective States. Chapter IV deals with finance and trade. Chapter VI deals with topics discrete from those dealt with elsewhere in the Constitution. It is concerned with the formation and admission of new States, with alterations of State boundaries and, in s 122, with the government of territories that are not States. The government of the territories is a function exclusive to the Commonwealth.

The legislative power conferred by s 122 stands outside the provisions which express the distribution of powers between the Commonwealth and the States. It is distinguished from the provisions which confer other legislative powers on the Parliament in three respects: in text and structure, in the areas to which it is directed and in the absence of any sharing of legislative power with the States.

The text of s 122 confers power to "make laws for the government of any territory", that is, a power to prescribe the mode of government of a territory as well as its domestic laws. Sir W Harrison Moore identified three possible modes of territory government[19]:

"The territory may be governed directly by the Commonwealth exercising all the powers of an unitary government over it; or it may be governed as a dependency with a subordinate government subject to the paramount authority of the Commonwealth; or finally, it may be admitted as a State (sec 121)."

Section 122 therefore provides constitutional support for laws enacted by the Parliament as the domestic laws of a territory and for laws enacted by a territorial legislature on which the Parliament has conferred power to enact the laws in question.

In so far as legislative power is conferred by s 122 in unqualified terms, the subject matter and content of the domestic laws of a territory, whether made in immediate or mediate exercise of the power, are prima facie unlimited. The section, being within Ch VI of the Constitution, is structurally separated from the grants of legislative power in Pt V of Ch I that are exercised for "the peace, order, and good government" of the Commonwealth as a whole. The latter powers are conferred "with respect to" specified subjects, not as a grant of universal legislative power.

The s 122 power is limited, however, to the making of laws for the government "of any territory", not for the peace, order and good government of the Commonwealth as a whole. Although a s 122 law can have an effect outside the territory, a territorial nexus with the law is needed to attract the support of s 122 and, as I point out below, the nature of that nexus is critical to any extra-territorial operation of a law dependent on s 122 for validity.

The power conferred by s 122 is not possessed by or shared with any State. The States possess no power over external territories and, as to internal territories, s 111 provides that, on the acceptance by the Commonwealth of an internal territory that is surrendered by a State, the territory becomes "subject to the exclusive jurisdiction of the Commonwealth".

The universal character of the s 122 power and its separation from the powers conferred by s 51 have been recognised throughout the history of the Commonwealth. In Buchanan v The Commonwealth[20] Barton ACJ said:

"it must be observed that sec 122, by itself, contains all the necessary power to legislate for a territory ... It does not need any assistance from sec 51 in respect either of taxation, or of anything else. It would suffice for all its purposes if there were no sec 51 at all. It is more ample than sec 51 for all the purposes of a territory."

In R v Bernasconi[21] Isaacs J rejected a submission that s 80 of the Constitution limited the mode of trial that might be prescribed for trials in a territory on indictment for contravention of a s 122 law. He said that s 80 -

"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.

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[22], but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power.

It is plain that that section does not consist merely of additional legislative power over territories beyond the powers already conferred upon Parliament in relation to the Commonwealth itself, for its language is unrestricted and covers many of the subjects already specified in sec 51. It is an unqualified grant complete in itself, and implies that a 'territory' is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers."

Perhaps the extreme view of s 122 was taken by Knox CJ and Gavan Duffy J in Porter v The King; Ex parte Yee[23] where, in an obiter, their Honours said that -

"in legislating for ... territories the Parliament of the Commonwealth must rely wholly upon the powers contained in [s 122], and cannot have recourse to legislative powers contained in Chapter I, Part V, of the Constitution, which have reference only to laws for the peace, order and good government of the Commonwealth."

The view that s 122 was the only (albeit sufficient) power to authorise the government or control of external territories was noted by Dixon J in Ffrost v Stevenson[24] but he did not find it necessary in that case to decide whether that view was correct. However, in the same case[25] Latham CJ said:

"In my opinion the source of the authority of the Commonwealth Parliament to make laws for the Territory of New Guinea is to be found in sec 122 and not in sec 51(xxix), the power to legislate with respect to external affairs."

In Attorney-General of the Commonwealth of Australia v The Queen ("the Boilermakers' Case")[26], the Privy Council referred to R v Bernasconi and Porter v The King; Ex parte Yee and said:

"It appears to their Lordships that these decisions (the latter of which was not reached without difficulty and dissent) can be satisfactorily reconciled with the opinion they have formed in the present case by regarding Chap III 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." (Emphasis added.)

The disparate non-federal character of the territories power is illustrated by the absence of any jurisdiction in this Court under s 73 of the Constitution to entertain appeals from the Courts of the Territories, the jurisdiction being conferred by laws enacted under s 122[27]. Courts of the Territories are not "federal" courts, even though they are created by the Parliament, since those Courts are not created in exercise of a federal legislative power but in exercise of the non-federal power conferred on the Parliament by s 122[28].

Then, in Lamshed v Lake[29] Dixon CJ said:

" In considering the operation of s 122 an obvious starting point is that it is 'the Parliament' that is to make the law pursuant to the power s 122 confers. That necessarily refers to s 1 of the Constitution and carries with it the provisions of Pts I, II, III and IV of Chap I. Leaving aside, for the time being, Pt V relating to the legislative powers of the Commonwealth, the next thing to point out in s 122 is the use of the expressions 'accepted by the Commonwealth' and 'placed under the authority of the Commonwealth'. The Commonwealth is the polity established by the Constitution and the 'authority' is the full legal authority which under the Constitution it possesses. ... The legislative power given by s 122 to the federal Parliament is necessarily not a power to make laws with respect to a subject matter defined with reference to a description of conduct, activity or head of law (like bills of exchange) considered suitable for control by a central as distinguished from the local State legislatures. For that reason most of Pt V of Chap I has no relation to it, and since Chap III has been considered to be concerned with judicature in relation to that division of powers (R v Bernasconi)[30] it may be treated as inapplicable so that laws made mediately or immediately under s 122 are primarily not within the operation of the Chapter." (Emphasis added.)

If the power to make law mediately or immediately under s 122 is not qualified by Ch III of the Constitution, it would be surprising if a qualification of a specific head of power contained in s 51 limited the legislative power conferred by s 122. In the next case of significance, Spratt v Hermes[31], Barwick CJ 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." (Emphasis added.)

Kitto J said[32]:

"The width of the legislative power it confers is the crucial consideration. 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[33], 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 authorize 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[34], 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[35], but with 'a disparate non-federal matter' as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v The Queen[36]." (Emphasis added.)

Consistently with this uniform line of authority, an unanimous Court gave judgment in Teori Tau v The Commonwealth[37]. The Court was constituted by five of the Justices who had sat in Spratt v Hermes (Barwick CJ, Kitto, Menzies, Windeyer and Owen JJ) together with McTiernan and Walsh JJ. In Spratt v Hermes the entire line of s 122 cases had been argued. The judgment in Teori Tau rejected the same argument as that put in the present case. The Court said[38]:

"This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. ...

Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.

It has been held with respect to the heads of legislative power granted by s 51 of the Constitution that by reason of the presence in that section of par (xxxi) none of the other heads of power, either of itself or aided by the incidental power, embraces a power to make laws for the acquisition of property. It is submitted by counsel that because it has been so held and because the power given by s 51(xxxi) is so ample as the decisions of this Court show, s 122 should not be construed as conferring a power to make laws for the acquisition of property. That is to say, it is said, in substance, that s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth.

In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section."

Although Teori Tau follows in direct line the cases which considered s 122 since the establishment of the Commonwealth, Newcrest sought leave to reopen that decision. In my opinion, it is singularly inappropriate to reopen the decision in Teori Tau, especially when the ground for reopening was described by an unanimous Court familiar with the jurisprudence of s 122 as "clearly insupportable". Teori Tau has been followed, uniformly and unquestioningly, in this Court in a line of cases, including: Clunies-Ross v The Commonwealth[39], Northern Land Council v The Commonwealth[40], Capital Duplicators Pty Ltd v Australian Capital Territory[41], Australian Capital Television Pty Ltd v The Commonwealth[42]and Mutual Pools & Staff Pty Ltd v The Commonwealth[43].

A clear recognition of the non-application of the requirement of just terms to a law for the acquisition of property in a territory enacted under s 122 appears in the majority judgment in Clunies-Ross v The Commonwealth[44]:

" First, the power to acquire property for a public purpose which the Act confers is not conferred merely in pursuance of the legislative power contained in s 51(xxxi). It is also conferred in pursuance of s 122 of the Constitution in that, in relation to land in a Territory, the purpose for which the land may be acquired includes 'any purpose in relation to that Territory'. In so far as it includes a power to acquire land by agreement, it is conferred pursuant to either other specific constitutional grants of legislative power or the 'incidental' power (s 51(xxxix)): see Trade Practices Commission v Tooth & Co Ltd[45]. The fact that that power of acquisition is not conferred merely in pursuance of the provisions of s 51(xxxi) weakens the strength of any presumption that the words used in the Act[46] should be construed conformably with the corresponding words used in that paragraph." (Emphasis added.)

Teori Tau rests on a principle "carefully worked out in a significant succession of cases"[47]. The principle is that s 122 confers a power that is additional to the powers conferred by s 51 and is not qualified by that section, the s 122 power being conferred solely on the Commonwealth not for the government of the Commonwealth as a whole but for the government of Commonwealth territories. That is not to say that the scope of the power is not limited by implications drawn from the federal structure, but it is to say that no limiting implication is to be found in the text of s 51(xxxi).

The principle of Teori Tau and the line of cases of which it is a part satisfied the political exigencies in which the Constitution was framed. The s 122 power was to be exercised in the diverse social and economic conditions of territories which might be accepted by the Commonwealth[48]. It would have been improvident to place on the Parliament, as the sole legislature for the territories, the restrictions that limited the s 51 powers which were to be exercised in the government of the whole federal Commonwealth.

However, Newcrest submits that s 51(xxxi) abstracts from s 122 the power to make laws for the compulsory acquisition of property in the same way as it abstracts that power from other powers conferred by s 51 and that it does so in order to preserve the "constitutional guarantee" of just terms. Of course, the description of "constitutional guarantee" has been used in relation to the requirement of just terms, but only in the context of laws that would otherwise have found their support in one of the other paragraphs of s 51. It has never been used in reference to a law enacted under s 122. Indeed, the description was used in Clunies-Ross[49] in the paragraph immediately following the Court's holding that the power to acquire property might be conferred in pursuance of either s 51(xxxi) or s 122. And in Trade Practices Commission v Tooth & Co Ltd[50], Mason and Aickin JJ stated the settled view to be that s 51(xxxi) abstracted the acquisition power from other heads of power "leaving aside s 122".

The long history of s 122 as a universal legislative power standing apart from and additional to the powers conferred by s 51 denies the possibility that the important governmental power of acquiring property compulsorily is abstracted from s 122. The contrary proposition can be tested by assuming that the legislature of a territory on which general legislative powers have been conferred[51] enacts a law authorising the acquisition of property within the territory. Section 51(xxxi) would not apply to the law for that provision is expressed to apply only to laws made by the Parliament for a purpose in respect of which the Parliament has power to make laws. If the power to enact a law for the compulsory acquisition of property were held to be abstracted from s 122, how could the Parliament confer that power on the territorial legislature? The territorial law would be invalid, for the Parliament could not authorise the territorial legislature under s 122 to do what it could not do itself under that section. Yet there is no other provision which would empower the Parliament to confer on a territorial legislature power to make a law for the compulsory acquisition of property. If such a territorial law be valid, it would have derived its constitutional force from s 122. The power conferred by that section must therefore be additional to and unqualified by s 51(xxxi). No doubt s 50(1) of the Self-Government Act was introduced in order to impose on the legislature of the Northern Territory a statutory restriction similar to the constitutional restriction imposed on the Parliament of the Commonwealth by s 51(xxxi). Of course, if s 122 does confer a power to make laws for the compulsory acquisition of property, that power is not qualified by the requirement of just terms in s 51(xxxi). The requirement of just terms qualifies the legislative power of acquisition conferred by s 51(xxxi); it qualifies no other power.

Although the territories power is not restricted by any limitation derived from the text of s 51, a restriction relevant to the power to make a law for the compulsory acquisition of property arises from the nature of the territories power and from the structure of the Constitution. The competent legislative authority of a law area is the authority which alone can enact a law which determines the ownership of property within that area. In international law, the principle is stated in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd[52]:

"The principle denies jurisdiction in a court to determine a claim of title to the property based on the operation of a statute or executive act of the foreign State on that property outside the territory of the foreign State. It is otherwise when the claim of title is based on an exercise of sovereign authority with respect to the property within the territory of the foreign State".

Or, as Lord Denning MR stated the principle in A-G of New Zealand v Ortiz[53]:

"By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority."

By analogy, no legislature in an Australian State has power to enact laws for the compulsory acquisition of property in another State or in a Territory. Nor can a law of a territory under s 122 - in which I include a law enacted by the Parliament of the Commonwealth for the government of a territory - authorise the compulsory acquisition of property situated in a State. The nexus which is sufficient to attract the support of s 122 to a law providing for the compulsory acquisition of property is that the property be situated within the Territory. It is not sufficient that the acquisition is for a territorial purpose or that some personal nexus between the territory and the owner of the property be established. The federal compact permits property to be compulsorily acquired in a State pursuant to a law of the Commonwealth but the terms on which that is provided for are set out in s 51(xxxi). If the territories power could be exercised to acquire property in a State, it could distort or affect the operation of those provisions of the Constitution which express the federal compact and protect the constitutional interests of the people living under it[54]. But the structure of the Constitution shows that, as between the Commonwealth and the States, the powers of the Commonwealth are those conferred in Chs I to V and that s 122 confers power on the Commonwealth as an additional or supplementary power for exercise in performing the function of governing the territories, but not as a power which enlarges the powers of the Commonwealth to make laws for the peace, order and good government of the Commonwealth pursuant to the federal compact. That is not to deny that a law enacted by the Parliament under s 122 has the character of a law of the Commonwealth. I would respectfully agree with the views expressed by Dixon CJ on that question in Lamshed v Lake[55] except that the scope of s 122 needs to be stated in more restricted terms than those used by Dixon CJ[56] in order to preserve the federal compact and to protect the constitutional interests of the people living under it.

As constitutional support for a s 122 law for the compulsory acquisition of property depends upon the property being within the Territory, a law for the compulsory acquisition of property in a State could not be supported as an exercise of an implied extension of the s 122 power to cover what is incidental to its fulfilment. Other kinds of s 122 laws may have an extra-territorial operation. That question engaged the Court in Lamshed v Lake and in Attorney-General (WA) v Australian National Airlines Commission[57]. It probably will arise for further consideration in other cases. But it does not arise in the present case.

If the Commonwealth requires property situated in a State for a territory purpose - say, premises to house an office for the administration of the territory - a compulsory acquisition of the property could be effected only in exercise of the federal acquisition power conferred by s 51(xxxi). The acquisition of property for such a territory purpose would be a matter incidental to the execution of the territories power and could be effected with the combined support of s 51(xxxi) and (xxxix).

Teori Tau is not only consistent with an unbroken line of authority; it is also, in my opinion, correct. If it is not adhered to, the powers of territorial legislatures with respect to the compulsory acquisition of property are denied. There is a further and powerful consideration which tells against the reopening of Teori Tau. Since the Commonwealth first assumed the administration of territories, it has been understood that the power of compulsory acquisition of property within the territory is derived from s 122. During that time, numerous property transactions have taken place in the course of the Territories' development. If the s 122 power does not support compulsory acquisitions, any grant or transfer of property that involved a compulsory acquisition is exposed to uncertainty if not invalidity. No validation of such a transaction could be effected by a retrospective payment of compensation; the legal consequence of any invalidity would simply be that the grant or transfer must be taken never to have occurred. That would produce consequences of unforeseen and unforeseeable difficulty. Teori Tau ought not be reopened.

In my respectful opinion, the proposition that the Conservation Amendment Act cannot be a law for the government of the Northern Territory because those provisions are a law for the compulsory acquisition of property should be rejected as "clearly insupportable" (to adopt the term used in Teori Tau).

The appeal should be dismissed and the question whether the impugned proclamations are invalid should be answered: No.

DAWSON J.

This case concerns a claim to certain mining leases in the area of Coronation Hill in the Northern Territory. In 1987 the second appellant, BHP Minerals Limited, transferred its interest in the leases to the first appellant, Newcrest Mining (WA) Limited ("Newcrest"). Various issues were raised upon the pleadings, including the question whether Newcrest's property in the mining leases was acquired by the Commonwealth otherwise than on just terms in breach of s 51(xxxi) of the Constitution. The issues other than that involving s 51(xxxi) were remitted for determination to the Federal Court and this Court now has before it an appeal from the judgment of the Full Court of the Federal Court following upon the remitter as well as the question involving s 51(xxxi) which was not remitted. The relevant facts and legislation are set out in the judgment of Gummow J, but because of the view which I take of the question involving s 51(xxxi), I have no need to refer to them in detail.

The lands over which Newcrest claims mining leases are included in Kakadu National Park. That park was proclaimed in three stages under s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Act"). That sub-section provides that the Governor-General may declare by Proclamation an area specified in the Proclamation to be a park or reserve and assign a name to that park or reserve. On 5 April 1979 Stage 1 of Kakadu National Park was proclaimed. Consistently with s 7(6) of the Act, the Proclamation specified the depth of the subsoil to be taken to be within the park to be 1,000 metres. On 22 February 1984 Stage 2 was proclaimed and a similar depth specified and on 5 June 1987 Stage 3 was proclaimed with a similar depth. Stage 3 was extended by Proclamation on 13 November 1989 and again on 21 June 1991. It is the Proclamations dated 13 November 1989 and 21 June 1991 which the appellants assert are invalid, they together being with respect to an area of land over which the appellants claim their mining leases. It is those Proclamations which, according to the appellants' contention, constitute an acquisition of property otherwise than upon just terms.

Broadly speaking, upon self-government being accorded to the Northern Territory in 1978, all land in the Territory which was previously vested in the Commonwealth was transferred to the Territory. However, simultaneously the fee simple in certain lands, including the lands which were to comprise Kakadu National Park, was acquired by the Commonwealth pursuant to s 70 of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act")[58].

Under s 7(7) of the Act:

"Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director."

The Director is the Director of National Parks and Wildlife who is a corporation under s 15 of the Act. The Commonwealth accepts that Newcrest's mining leases, if they exist, are property within the meaning of s 51(xxxi) of the Constitution. However, it says that any interest held by Newcrest under the leases was not under s 7(7) vested in the Director and continued to be held by it from the Commonwealth. Nothing would seem to turn upon this.

The Act was amended by the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Amending Act"). The Amending Act inserted in the definition section of the Act the following:

"'Kakadu National Park' means the area for the time being declared under section 7 to be the park of that name".

The Amending Act also inserted s 10(1A) in the Act. That sub-section provides:

"No operations for the recovery of minerals shall be carried on in Kakadu National Park."

Section 7 of the Amending Act provides:

"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."

The appellants contend that the words "by reason of the enactment of this Act" in s 7 of the Amending Act restricted the effect of that section to the situation as it existed when the Amending Act came into force on 18 May 1987. That is to say, the only liability for compensation which s 7 denied was liability arising from the prohibition of mining in Kakadu National Park as it existed at that date. Stage 3 of Kakadu National Park had not been implemented by 18 May 1987 and the lands said to be the subject of the mining leases were included in Stage 3, as extended by later Proclamations. Thus, the appellants argued, s 50(2) of the Self-Government Act continued to apply in relation to the mining leases, unaffected by s 7. Section 50(2) provides that, subject to s 70 (which is immaterial for present purposes):

"the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms".

However, to adopt the construction of s 7 of the Amending Act for which the appellants contend is to disregard the insertion in the Act by the Amending Act of the definition of "Kakadu National Park" as meaning "the area for the time being declared under s 7 [of the Act] to be the park of that name". The effect of that definition is to give s 10(1A) of the Act an ambulatory effect, prohibiting mining operations in Kakadu National Park as it is constituted from time to time. In asserting an acquisition of property, Newcrest relies upon the prohibition against the exploration of the mining tenements in question. Since s 10(1A) of the Act was inserted by the Amending Act, any acquisition of property was by reason of the enactment of the Amending Act.

It is sufficient for my purposes to assume that the Proclamations dated 13 November 1989 and 21 June 1991, together with the statutory prohibition against mining operations in Kakadu National Park, constituted the acquisition otherwise than upon just terms of property held by Newcrest in the form of the mining leases which it claims.

Under s 122 of the Constitution the Commonwealth Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth. Upon federation, the area which is now the Northern Territory was part of the State of South Australia[59]. By s 7 of The Northern Territory Surrender Act 1907 (SA) the Northern Territory was surrendered to the Commonwealth by South Australia in accordance with the agreement set out in the schedule to that Act. By s 6(1) of the Northern Territory Acceptance Act 1910 (Cth) the Northern Territory was declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth by the name of the Northern Territory of Australia. The latter enactment was proclaimed to commence on 1 January 1911.

The legislative power conferred by s 122 is "plenary in quality and unlimited and unqualified in point of subject matter"[60]. Thus, as Barwick CJ explained in Spratt v Hermes[61]:

"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."

The result is that the Commonwealth is, with respect to a territory, a completely sovereign legislature[62]. All that need be shown to support an exercise of the power under s 122 is that there is a sufficient nexus or connection between the resultant law and any territory[63]. Notwithstanding a clear connection between the Act and the Northern Territory, the appellants argue that the relevant provisions of that Act cannot be supported by s 122.

The argument proceeds upon the basis that the Act is intended to have an application throughout Australia, not just in the Northern Territory[64], so that it cannot be characterised as a law for the government of the Northern Territory within the meaning of s 122. That argument cannot be sustained. True it is that the Act has an application beyond the Northern Territory and, to the extent that it does, the legislative power to support its provisions must be found in s 51 rather than s 122. An acquisition of property, where reliance could not be placed upon s 122, would be under s 51(xxxi) and require just terms, for, as has frequently been observed, the presence of par (xxxi) in s 51 abstracts from the other paragraphs of that section the power to legislate with respect to the acquisition of property for any purpose in respect of which the Parliament has power to make laws and makes par (xxxi) the exclusive repository of that power[65].

But the fact that the Act extends in its application beyond the Northern Territory does not mean that in its application to the Northern Territory it is not a law for the government of the Territory. One of the objects of Pt II of the Act, which is headed "Parks and Reserves" and contains the provisions relevant in this case, is expressed as being "to make provision for the establishment and management of parks and reserves ... in the Territories"[66], indicating to my mind a clear intention to invoke the support of s 122 to the extent that it is available. Other sections in Pt II are given a specific application in the Northern Territory[67].

In any event, the appellants' argument denies the well-established principle that in passing a law of general application the Parliament is entitled to rely upon all those powers which are able to support the law. The particular application of that principle where s 122 is involved was explained by Windeyer J in Spratt v Hermes[68] as follows:

"when the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."

It is, in my view, beyond question that Pt II of the Act was intended to apply in the Northern Territory regardless of the validity of its application elsewhere. Not only is it an express object of Pt II that it make provision for the establishment and management of parks and reserves in the Territories, but, as I have said, Pt II is given specific application to areas within the Northern Territory, including Kakadu National Park. There is not only a clear nexus or connection between the legislation and the Northern Territory which is sufficient to support it as an exercise of legislative power for the government of the Territory under s 122 but there is also a clear indication of an intention that its provisions should so apply irrespective of the validity of its application elsewhere.

The appellants rely upon the establishment of the Northern Territory as a separate body politic with extensive powers of self-government as indicating that the Act was not intended to be an exercise of the power to make laws under s 122 of the Constitution. They do not, and could not, submit that, having granted a measure of self-government, the Commonwealth has relinquished its own power to legislate for the government of the Northern Territory. Even if in some circumstances the granting of self-government may have relevance in determining parliamentary intention where legislation expressed to apply generally cannot be validly so applied[69], it remains a question of construction whether the legislation is nevertheless intended to apply to a territory. As I have said, there is clear indication in the Act that Pt II was intended to apply in the Northern Territory, even if it could not validly be applied elsewhere.

The appellants further argue that if Pt II of the Act is supported by s 122 of the Constitution in addition to s 51, the requirement of just terms imposed by s 51(xxxi) nevertheless applies. They make this submission in reliance upon the well-known passage in the judgment of Dixon CJ in Attorney-General (Cth) v Schmidt[70]:

"It is hardly necessary to say that when you have, as you do in par (xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorised the same kind of legislation but without the safeguard, restriction or qualification."

However, whilst the other legislative powers granted by s 51 of the Constitution may be seen as being in the same context as par (xxxi) for the purposes of that passage, the same can hardly be said of s 122. Appearing as it does in a separate chapter of the Constitution headed "New States", the legislative power in respect of the territories "is a disparate and non-federal matter"[71] which, it may also be noted, is not expressed to be subject to the Constitution. Not only does s 122 appear in a different context, but it is a context which provides no basis whatsoever for suggesting any limitation upon the power which it confers save for the requirement of a territorial nexus. On the contrary, its terms deny any such limitation for there can be no formula for the more complete bestowal of legislative power than that used in s 122.

Not only that, but the submission is in direct conflict with the unanimous decision of this Court in Teori Tau v The Commonwealth[72]. In that case, the Court rejected a submission that s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property by the Commonwealth in a territory. It did so without calling upon the defendants because it was "able to reach, without any doubt, a clear conclusion upon the question submitted"[73]. The Court said[74]:

"In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section."

In Clunies-Ross v The Commonwealth[75], six members of this Court affirmed that s 122 confers power to acquire property, such power not being abstracted from it by s 51(xxxi). In Northern Land Council v The Commonwealth[76], a unanimous Court relied upon Teori Tau without questioning it in any respect, as did three members of the Court in Capital Duplicators Pty Ltd v Australian Capital Territory[77]. Moreover, Teori Tau was affirmed by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth[78] and by four members of the Court in Mutual Pools & Staff Pty Ltd v The Commonwealth[79]. Thus, despite other differences of opinion regarding s 122, the relationship between that section and s 51(xxxi) is settled by a unanimous decision of this Court which has stood for nearly thirty years and which, far from having ever been doubted, has been relied upon on numerous occasions[80]. The appellants seek to have the Court re-examine the correctness of Teori Tau, but they should be refused leave to do so. The consequences of departure from settled authority in this instance may be severe. But more importantly, in light of the acceptance in this Court of Teori Tau, it is, I think, difficult to suggest that the decision is plainly wrong. In fact, in my view, Teori Tau is a manifestly correct decision.

It is important to bear in mind that, notwithstanding its requirement of just terms, s 51(xxxi) confers a legislative power. The requirement of just terms is sometimes referred to as a guarantee[81], but that should not be allowed to obscure the fact that it is a qualification imposed upon a legislative power. That power is the power to make laws for the acquisition of property from any State or person for any purpose in respect of which the Parliament has power to make laws. Paragraph (xxxi) is set in s 51 which enumerates those subject matters in respect of which, as part of the federal division of power, the Commonwealth Parliament has power to legislate for the peace, order, and good government of the Commonwealth. The enumerated powers in s 51 circumscribe the purposes for which the Commonwealth Parliament is given power to make laws for the acquisition of property, for they provide the purposes in respect of which that Parliament has power to make laws. As Dixon CJ observed in Attorney-General (Cth) v Schmidt[82] in a judgment in which Fullagar, Kitto, Taylor and Windeyer JJ concurred:

"It is perhaps not easy to express in a paraphrase the extent of the operation of s 51(xxxi) and thus to define its full scope and application but it is at least clear that before the restriction involved in the words 'on just terms' applies, there must be a law with respect to the acquisition of property (of a State or person) for a purpose in respect of which the Parliament has power to make laws. The expression 'for any purpose' is doubtless indefinite. But it refers to the use or application of the property in or towards carrying out or furthering a purpose comprised in some other legislative power."

Section 122 also confers legislative power upon the Parliament, but the power which it confers is a plenary power which is not limited to any subject matter and hence does not restrict the purposes for which laws may be made for the government of a territory. The fact that the power is a power to make laws for the government of any territory does not supply a purpose, at all events in the sense in which that word is used in s 51(xxxi), any more than the power of the Parliament under s 51 to make laws for the peace, order, and good government of the Commonwealth supplies a purpose for which the Parliament has power to make laws within the meaning of s 51(xxxi). The purposes to which s 51(xxxi) refers are limited purposes which are not to be discerned in the plenary legislative power granted by s 122. The power granted by s 122 is unlimited in terms of subject matter and, hence, in terms of purpose, with the result that the power to make laws for the acquisition of property which it necessarily embraces is a completely different power from that granted by s 51(xxxi).

This may, perhaps, be more readily appreciated by comparing the opening words of s 51 with s 122, bearing in mind that the reference in s 122 to "the government of any territory" is no less extensive in relation to a territory than is the expression "the peace, order, and good government of the Commonwealth" in relation to the Commonwealth in s 51[83]. However, in the case of s 51, unlike s 122, the Constitution then proceeds to enumerate particular matters "with respect to" which the power conferred may be exercised. Clearly, it is not the power to make laws for the peace, order, and good government of the Commonwealth which is a "purpose in respect of which the Parliament has power to make laws" within the meaning of s 51(xxxi). The purposes referred to in s 51(xxxi) are limited purposes and those limits must be found in those matters contained in the paragraphs of s 51 and other sections of the Constitution which confer limited powers. However, the power to make laws for the government of any Territory is not limited in any such way and thus is not a "purpose in respect of which the Parliament has power to make laws". Thus, s 51(xxxi) can have no application in relation to the legislative power granted by s 122. The valid exercise of s 51(xxxi) is dependent upon the observance of a limitation laid down by that paragraph by reference to the subject matter of other limited powers.

There is a second reason why s 51(xxxi) cannot, in my view, be construed as limiting the power conferred by s 122. Section 122 is a power to legislate for the government, that is to say, the peace, order, and good government, of any territory. However, the requirement of just terms to be found in s 51(xxxi) is confined by its terms to laws for the peace, order, and good government of the Commonwealth. When the Commonwealth Parliament legislates for the government of any territory pursuant to s 122, even if that territory may be regarded as part of the Commonwealth, it is not legislating for the peace, order, and good government of the Commonwealth but for something entirely different. Sections 51 and 122 clearly posit the government of any territory and the peace, order, and good government of the Commonwealth as different things. A law for the government of any territory is no more a law for the peace, order and good government of the Commonwealth than is a law for the peace, order (or welfare), and good government of a State. No doubt a law passed pursuant to s 51 may have an application in a territory, but that is not to the point.

In Nintendo Co Ltd v Centronics Systems Pty Ltd[84], after referring to the principle of construction laid down in Attorney-General (Cth) v Schmidt, it was said:

"That operation of s 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law[85]."

It is, I think, unnecessary to invoke the principle expressed in that passage, since on the view which I take s 51(xxxi) and s 122 do not collide. But even if they do, it is clear that s 122 manifests the contrary intention to which that passage makes reference. For it confers a complete and unqualified legislative power which is not expressed to be subject to the Constitution but which is situated in a chapter of the Constitution dealing with matters which are different from those dealt with in s 51. That power necessarily extends to the acquisition of property in any territory.

In Allders International Pty Ltd v Commissioner of State Revenue (Vict)[86] I expressed the view, to which I adhere, that since the power to tax conferred by s 51(ii) of the Constitution is subject to a safeguard which prevents its exercise so as to discriminate between States or parts of States, the power to tax is abstracted from the power over Commonwealth places conferred by s 52(i) of the Constitution. In making that suggestion, I referred to the comments of Dixon CJ in Attorney-General (Cth) v Schmidt[87]. The suggestion was, however, rejected as having no merit by McHugh, Gummow and Kirby JJ, with whom Gaudron J agreed. Their Honours referred to the separate and plenary nature of the power conferred by s 52(i)[88]. But the powers conferred by s 52 are expressed to be conferred subject to the Constitution, are to be exercised for the peace, order, and good government of the Commonwealth, and confer power over Commonwealth places as a subject matter rather than as areas over which the Commonwealth enjoys political dominion[89]. If the view is taken that s 52(i) prevails against the safeguard contained in s 51(ii), a fortiori s 122 must prevail against the safeguard contained in s 51(xxxi).

It is true that in Lamshed v Lake[90] Dixon CJ, with whom Webb and Taylor JJ agreed, said:

"To my mind s 122 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. The words 'the government of any territory' of course describe the subject matter of the power. But once the law is shown to be relevant to that subject matter it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs."

However, Dixon CJ in that passage must have been using the term "subject matter" in a very different sense from that in which it is used in relation to ss 51 and 52. Plainly the power of the Parliament under s 122 is not confined to particular heads as it is under ss 51 and 52 and to speak of subject matter in relation to s 122 can only be to point 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[91]. However, it would be unusual for the legislative power of a State to be described as a power to make laws with respect to a subject matter, namely, the State, and, apart from any qualifications which may exist elsewhere in the Constitution, the legislative power conferred by s 122 with respect to the territories is no less than that possessed by the State legislatures in respect of the States[92].

The notion that the Court should stay its hand because of the rejection of the constitutional referendum in 1988 is the least convincing reason of all. There were several connected proposals any one of which could have explained the failure to pass the constitutional alteration concerning State and Territory acquisitions of property. Typically, political factors can play a part, as they did on that occasion. I do not recall the slightest mention of Teori Tau during the referendum arguments. Far from being "comfortable" with the holding in that case, the people of Australia, it seems safe to assume, were blissfully ignorant about it and about the controversy which now falls for reasoned decision by this Court.

Nonetheless, in my view, Teori Tau does not represent an ill-considered departure from the holdings of the Court which preceded it on the scope of the territories power under the Constitution. On the contrary, the decision fits quite comfortably within a number of other decisions of the Court. These emphasised the distinctiveness of the head of power in s 122 and its separation from the other powers afforded to the Parliament to make laws. Before identifying the reasons which lead me to conclude that Teori Tau was wrongly decided, and should now be overruled, I want to acknowledge, as forcefully as I can, the persuasive power of the arguments which would sustain adherence to its holding. Only by understanding and weighing these can a correct decision be reached about the submissions of the appellants to the contrary.

Arguments for separating s 122 from s 51(xxxi)

The principal reasons, apart from those of authority, for adhering to the holding in Teori Tau are, in my opinion, these.

1. A number of indications in the text of the Constitution are relevant and must be given weight. The provisions of ss 51(xxxi) and 122 appear in separate Chapters of the Constitution. Whilst it is true that both s 51 and s 122 empower the making of laws by the Parliament, the collection of the powers in s 51 is specific and limited as to subject matter. The power under s 122 is not limited in subject matter but only by reference to geography and object. The phrase used in s 51(xxxi) "for any purpose in respect of which the Parliament has power to make laws" represents the exact formula used in the opening words of s 51 and s 52. There is no reference in s 122 to the Parliament's "power to make laws". Had it been intended to subsume acquisitions of property made pursuant to the territories power within the régime established by s 51(xxxi), it might have been expected that such power would have appeared as a paragraph in s 51 or s 52. As Gummow J has pointed out, it was proposed at the Melbourne Convention in 1898 that s 122 be placed in what became s 52. Instead, it was placed in Ch VI. This separation gives a measure of support to its suggested character as "unlimited and unqualified in point of subject matter"[426]. It helps to explain why the territories power has sometimes been described as being "of a different order"[427] from the legislative powers appearing elsewhere, notably in s 51.

2. The textual expression and arrangement of the Constitution also help to explain why the power to make laws under s 122 has been repeatedly described as plenary[428]. The "plenary" character is given emphasis by the omission from s 122 of the phrase "subject to this Constitution". That phrase appears in the opening words of the grants of legislative power in ss 51 and 52. Had it been intended to submit acquisitions effected under the territories power to the requirement established by s 51(xxxi), it might have been expected that the familiar words of cross-reference would have been used. They were not. The grant of power by s 122 to make "laws for the government of any territory" must be taken to include a power to legislate for the compulsory acquisition of property. Such power is, as it was in 1901, an essential feature of "government". Whatever doubts were thought to exist as to the capacity of the specific heads of power in s 51 to sustain compulsory acquisition of property by the Commonwealth for its non-territorial functions, such doubts could not exist in respect of the plenary grant of power in s 122. The "government of any territory" could not be conducted without a power, where necessary, to acquire property by compulsion for such governmental purposes. In 1901 the power of acquisition by statute was fully accepted for the provision of roads, railways, post offices, court houses and the other essential services of government. Even more so today, as governmental purposes have expanded, the words of s 122 must, by necessary implication, carry an acquisition power. But whereas that power is expressly qualified in s 51(xxxi) by the requirement that the acquisition be "on just terms", no such express qualification has been included in the terms of s 122.

3. An explanation for this differentiation may exist in the history of s 51(xxxi). The location of the provision in the list of the Commonwealth's legislative powers suggests that it was not conceived of as a constraint on power but as an affirmative contribution to that power, although on the condition stated. In their text of 1901, Quick and Garran explained that the addition of the provision was proposed at the 1898 session of the Constitutional Convention to overcome doubts which were expressed that the proposed Federal Parliament would not have "a right of eminent domain for federal purposes"[429]. The Framers had recourse to the provisions of the Fifth Amendment to the United States Constitution. The terms of s 51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms"[430]. The function of the paragraph as a grant of federal power has long been accepted by this Court[431]. The function of s 122 is different. It was not part of the assignment of powers as between the new federal polity and the States, which was the general concern of s 51. To that extent the territories power in s 122 has been described as "non-federal" in its essential character[432]. Similarly, the territories have been described as not being "part of the Federal system"[433]. The federal compact between the former colonies and the new Commonwealth was to be contained in the first five Chapters of the Constitution. They established a "special universe of discourse"[434]. Upon this view, s 122, found in Ch VI, deals with a fundamentally different topic entirely within the Commonwealth's governmental concerns[435]. It was the realisation that the power to make laws for the government of the territories stood outside the federal system that led Kitto J in Spratt v Hermes[436] to "recant"[437] the opinion which he had earlier expressed in Lamshed v Lake[438]. Whilst for some purposes a territory was part of the Commonwealth, for the purposes of the limitations placed upon the powers of the Federal Parliament under the federal compact with the States, s 122 was to be viewed as separate and distinct. Some textual support for this view exists in the language of s 51(xxxi). The paragraph refers expressly to "acquisition ... from any State or person". There is no reference to acquisition by or from a territory. The words lend some support to the view that such acquisitions were to be regarded as exclusively within the power granted by s 122.

4. Further reinforcement for this view emerges from the nature of the power granted by s 122. It is, in effect, a power to establish local government in the territories. By analogy with the States in their own domain, it is therefore an entire grant. There is no requirement that it be subject to limitations, qualifications or conditions thought proper with respect to the new federal polity in its relationship to the States and persons within such States[439]. Just as the States are not now, any more than they were in 1901, subject to entrenched constitutional requirements to provide just terms for the acquisition of property, so the grant of power to the Commonwealth had no such limitations, qualifications or conditions in the territories.

5. Nor can it be said that Teori Tau stands as an anomalous exception to the Court's jurisprudence with respect to the s 122 power. On the contrary, it is consistent with a series of decisions which emphasise the unique nature of s 122 and the legislative power which it affords. In Buchanan v The Commonwealth[440] it was held that the limitations imposed by s 55 of the Constitution on the making of laws imposing taxation applied only to laws made under the power conferred by s 51(ii). It did not apply to a law made under s 122. Accordingly, the requirements of s 55 of the Constitution were inapplicable in a territory. In R v Bernasconi[441] it was held that the protections of s 80 did not apply to a law made under s 122. In Lamshed v Lake[442] it was held that s 92 was not applicable to trade, commerce and intercourse between a territory and a State. In Spratt v Hermes[443] it was held that the guarantees in s 72 with respect to the appointment, tenure and salary of members of the federal judiciary were not applicable to courts created by, or pursuant to, laws made under s 122. In Capital TV and Appliances Pty Ltd v Falconer[444] it was held that the Supreme Court of the Australian Capital Territory was not a federal court, nor a court exercising federal jurisdiction and, accordingly, that this Court had no jurisdiction, pursuant to s 73, to entertain an appeal from it. In Svikart v Stewart[445], it was held that s 52(i) did not apply to places in the Northern Territory acquired by the Commonwealth for public purposes. There are other cases in the same line[446]. Moreover, the correctness of the Court's holding in Teori Tau has either been implicitly or expressly accepted in later decisions[447]. Insofar as dicta of the Court disclaim the theory that territories are "disjoined from the rest of the Constitution"[448] such disjunction is refuted except in respect of lawmaking power for the territories or where provisions of the Constitution are, in terms, apt to apply only to the States[449]. Insofar as more recent decisions of the Court have raised questions about the scope of s 122 and its relationship with the other provisions of the Constitution[450] and the implications therefrom[451], these decisions may be supported by the proponents of Teori Tau by the particular matters they dealt with. Notably, the holding that s 90 of the Constitution (within Ch IV) precludes the Legislative Assembly of a territory, established pursuant to s 122, from imposing duties of excise is explained by the suggested distinction between the express prohibition in s 90 and the restriction on the exercise of federal power in s 51(xxxi).

Various other arguments for holding to Teori Tau are collected in the opinions of Brennan CJ, Dawson and McHugh JJ in this matter. Some of them lay emphasis on the supposed consequences of the opposite theory for the validity of grants of freehold or leasehold title made by the Commonwealth in the Northern Territory after 1911. For the reasons given by Gummow J, I am not convinced that these apprehensions are well founded. If they were, yet were the consequences of the operation of the Constitution properly understood, they could not provide a reason for withholding the meaning which the text required. They would be a reason for hesitation to depart from established authority and for requiring convincing argument to reach the alternative view. But the history of constitutional interpretation in this country, as elsewhere, has been marked by several instances when the holding of the Court has obliged significant rearrangements and readjustments in the rights and duties of those affected by its decisions. This is no more than the application of the rule of law in the constitutional context.

I have taken the pains to mention the foregoing arguments because I do not consider that Teori Tau can be discarded as a mere anomaly in this Court's jurisprudence. If the holding in that case is now to be overruled, this should be done in full recognition of its lineage: appreciating and accepting the significant implications, legal and otherwise, of that course.

Application of s 51(xxxi) to territory laws under s 122

I accept the force of the preceding arguments of a decisional, textual and historical kind. Nevertheless, with respect to the contrary view, I have concluded that the correct interpretation of the constitutional text requires the application of the "just terms" requirement of laws for the acquisition of property by the Commonwealth from a person as much in a territory as elsewhere in Australia. The error of the contrary opinion is such as to authorise, and require, the reversal of the Court's holding in Teori Tau. It necessitates the establishment of the correct constitutional doctrine. To the extent that leave is required to overrule Teori Tau,it should be granted. My essential reasons are as follows:

1. The text of s 51(xxxi), as a matter of language, is apt to include an acquisition pursuant to a federal law made under s 122. The paragraph refers to acquisitions for any purpose "in respect of which the Parliament has power to make laws". Whilst it is true that ss 51 and 52 contain such law-making powers, s 122 likewise does. That section refers to the same law-making organ. The absence of the word "power" from the formula in s 122 is inconsequential, for legislative power there clearly is. The "Parliament" signified in s 51(xxxi) is the same Parliament as is empowered to make laws under s 122. There is thus an explicit control upon the law-making of that Parliament which is not, in terms, confined to law-making outside the territory. Whilst this approach did not commend itself to the Court in Teori Tau,its rejection effectively endorsed the view that s 122 is "disjoined from the rest of the Constitution" as Dixon J said it could not be[452]. It is much more persuasive and, I think, orthodox constitutional interpretation to read down the amplitude of the general grant of legislative power in s 122 to "make laws for the government of any territory" so its content is understood together with the other provisions of the Constitution, particularly those which were designed, as s 51(xxxi) was, to provide "a constitutional guarantee of just terms"[453]. It is an elementary rule of the interpretation of constitutions that provisions of such a protective kind are given the liberal construction appropriate to such constitutional guarantees[454]. The narrow view hitherto adopted is inappropriate to the constitutional language of s 51(xxxi), understood in this sense.

2. The absence from s 122 of the phrase "subject to this Constitution" is also unimportant. That phrase has been described as "superfluous"[455], given that it is another rudimentary requirement of constitutional construction that each provision in the document must be read with all other provisions[456]. Since the Constitution must be read as a whole, the words "subject to this Constitution" in ss 51 and 52 are strictly unnecessary. Put another way, the words can be implied into s 122. This point was made by Dixon CJ in Lamshed v Lake[457] when his Honour said "I have always found it hard to see why s 122 should be disjoined from the rest of the Constitution".

The contrary view is ultimately untenable, not simply as a matter of verbal construction but also when the purpose of the Constitution is kept in mind. That purpose, relevantly, was to provide for the harmonious interrelationship of the government of the Commonwealth and all its parts, including the territories. The territories were not, in law or in political reality, "quasi foreign countr[ies] remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament"[458]. Kitto J's thoughts in Lamshed v Lake[459]were correct:

"[T]he fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories."

3. When it comes to the implications which are to be derived from the structure and organisation of the Constitution, they too support this approach. It seems unlikely that a fundamental law made by the people of Australia and establishing a Parliament elected by, and responsible to, the Australian people, would have contemplated the government of the territories as akin to federal fiefdoms, beyond the protection of the relatively few guarantees of rights thought so fundamental to the rest of the people of Australia that they had to be expressly stated in the constitutional text. To exclude the people in the territories from the rights conferred by the "constitutional guarantee" of just terms in s 51(xxxi), would have necessitated a much clearer expression of exemption. None exists. Where a special limitation on the powers of a Parliament is expressed in clear terms, the orthodox application of the principles of constitutional interpretation states[460]:

"'[I]t is in accordance with the soundest principles of interpretation to treat the conferral of an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification'."

That principle has been applied by this Court many times in relation to the interaction of s 51(xxxi) and other heads of legislative power in s 51. The same rule applies, with precisely the same force, in respect of other grants of legislative power appearing in the Constitution, including s 122.

4. The foregoing is not to deny that the territories power in s 122 may properly be described as "plenary". Nor does it refute the amplitude of the power or its analogies to the general powers of government enjoyed by a State in relation to its own domain. But where there is an express constitutional safeguard, restriction or qualification, it does not erase the plenary power. It simply controls its exercise in relation to that particular subject matter specifically provided for. In explaining why the power to extract taxation is outside the requirement of "just terms" in s 51(xxxi), it is usually pointed out that the express power to tax people necessarily involves the contemplation of the acquisition of the taxpayer's property[461]. However, the general power to make laws for a territory of the Australian Commonwealth does not necessarily require the uncompensated acquisition of property. There is no necessary reason to exclude the requirement of just terms. The Court should, instead, follow the course of interpretation which it has taken where it has been argued that an express head of power, supported, perhaps, by the express incidental power, authorises an acquisition of property without the constitutional precondition stated in s 51(xxxi). Within the boundaries of s 51, the Court has always insisted that the express constitutional promise of just terms in par (xxxi) has to be fulfilled, whatever the other constitutional source or sources of the law under which the acquisition is purportedly effected[462].

5. The contrary view can also be tested by the bizarre consequences which would flow according to its logic. They suggest that the opposite interpretation should not be accepted. For example, the "plenary" view of s 122, taken to its extreme, led Gibbs J to question whether the guarantee in s 116 of the Constitution against the making of federal laws for establishing any religion applied to federal laws for the territories[463]. Although Barwick CJ, delivering the judgment of the Court, drew back from this consequence in Teori Tau[464] it is, in truth, a logical extension from totally disjoining s 122 from the rest of the Constitution. After all, s 116 appears in Ch V titled "The States". An uncompromising view of the separateness of the several Chapters of the Constitution, and the particular separateness of s 122, supports Gibbs J's opinion. Yet it scarcely seems likely to have been the purpose of the Framers. It is not necessary to the constitutional text which they adopted. At least it is not necessary if the unity and integration of the whole draft is respected[465]. Nor is the thesis that s 51 is confined to "federal", as distinct from territorial, concerns convincing. It has been commonly assumed that s 51(xxxix) is available to expand the power conferred on the Parliament by s 122 to make laws for the government of any territory[466]. Yet once that supplementation by s 51 is acknowledged as a possibility, it is untenable, in logic, to adhere to the strict divide. If the incidental power is available to permit the Parliament to enact a law having extra-territorial operation outside a territory (as this Court has held[467]), the logic of that determination must be that acquisitions effected by the Commonwealth under a law made by the Parliament reliant on s 122, although in a State or even from a State, would not entail the constitutional entitlement to "just terms". Such a proposition has only to be stated to show the absurdities which result from such a rigid disjunction of the territories power from the rest of the Constitution.

6. The more recent authority of this Court has evidenced a gradual retreat from the approach of complete disjunction and a return to Dixon J's insistence upon viewing the territories power in its context in a Constitution established by and for the people of Australia for the entire government of their country, including the territories[468]. Perhaps this movement reflects an appreciation of the changes of the political realities upon which the Constitution must operate as much as fresh insights into the text and this Court's decisional authority. No longer is s 122 of the Constitution necessary for the contemplated or prospective government of colonies such as Papua-New Guinea and Fiji, with their distinct needs, as originally envisaged when the Constitution was drafted[469]. Now, the power must be read as part of a constitutional document providing for the government only of the Australian people, including those who live in the mainland and island territories of the Commonwealth. They constitute one people and Australia is one country[470]. It is for such a people and country that the provisions of ss 51(xxxi) and 122 must now be understood and applied by this Court. The only way to avoid absurd results, out of joint with contemporary realities, is to read s 122 as subject to the expressed and implied safeguards, restrictions or qualifications appearing elsewhere in the Constitution. Doing so requires the overruling of the authority of Teori Tau. It may also require some reconsideration of other earlier decisions of this Court affecting the territories[471]. The process of the reintegration of s 122 with the rest of the Constitution has already begun. It can be seen most clearly in the recent holding of this Court in Capital Duplicators Pty Ltd v Australian Capital Territory[472]. The doctrine that s 122 was "disjoined" was there reined in. The territories power had purportedly been used by a territorial legislature to impose a duty of excise. That attempt was held to be forbidden by s 90 of the Constitution despite the amplitude of the territories power in s 122. This was so although s 90 appears in Ch IV, makes no reference to the territories, is expressed in terms which refer to "the Parliament" and "the several States" and is related to the central subject matters of the "federal" arrangements adopted to govern the Commonwealth and the States after the federation. The Court read the Constitution as a unity. Doing so, it found that s 122 was subject to s 90. The same approach should be taken to the principal problem presented by this case.

Interpretative principle

There is one final consideration which reinforces the view to which I am driven by the foregoing reasons. Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights.

Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said[473]. If the Constitution is clear, the Court must (as in the interpretation of any legislation) give effect to its terms. Nor should the Court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law[474]. However, as has been recognised by this Court[475] and by other courts of high authority[476], the inter-relationship of national and international law, including in relation to fundamental rights, is "undergoing evolution"[477]. To adapt what Brennan J said in Mabo v Queensland [No 2][478], the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.

One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia's domestic law, still less of its Constitution[479]. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation[480]. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution[481]. The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms"[482]. Such jurisprudence has its analogies in the courts of several other countries[483]. The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted[484].

The Universal Declaration states in Article 17:

"1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property."

Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided:

"To any man whom we have deprived or dispossed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".

A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen, 1789[485]:

"Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".

Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that[486]:

"No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."

The original provision to this effect in the Indian Constitution[487] has been amended several times[488]. The provision required that no person should be deprived of that person's property save by authority of law and such law had to provide for compensation for the property so acquired or requisitioned[489]. The Supreme Court of India, while that test stood, insisted that provisions for compensation were a necessary condition for the making of a valid law providing for the acquisition or requisition of property by the state [490]. In other countries of the region property rights are constitutionally protected by the same two requirements. Thus, Malaysia's Constitution provides that there shall be no deprivation of property save in accordance with law and no valid law for compulsory acquisition or use of property without adequate compensation[491]. Similarly the Japanese Consititution provides[492] that "[p]rivate [p]roperty may be taken for public use upon just compensation". In South Africa, where the issue was much debated in the context of the rights of the dispossessed majority, the 1996 Bill of Rights provides that "[n]o-one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property"[493].

In effect, the foregoing constitutional provisions do no more than reflect universal and fundamental rights by now recognised by customary international law. Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right[494], s 51(xxxi) of the Australian Constitution must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.

When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights[495]. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose. That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.

The authority of Teori Tau apart, a correct understanding of the Constitution does not oblige a construction condoning a law made by the Federal Parliament for a territory providing for the acquisition of property otherwise than on just terms. The obstacle which Teori Tau presents to the adoption of the correct constitutional principle should be overcome. This may the more readily be done because that decision effectively breaks a promise given on behalf of the Commonwealth at federation adopting a safeguard, restriction or qualification on its lawmaking powers relevant to the fundamental rights of all persons from whom property is compulsorily acquired under federal law. That promise extends to the territories and to laws for the government of the territories. This Court should ensure that the promise is kept. The decision in Teori Tau should be overruled. Section 51(xxxi) applies to a law made by the Federal Parliament under s 122. It therefore applies to the Conservation Act. It follows that the orders and declarations proposed by Gummow J should be made.

An alternative approach

The same result, as is reached by the foregoing reasoning, follows from the additional (or alternative) approach explained by Gaudron J in her reasons with which Toohey J agrees. Gummow J additionally adopts that approach. So would I.

The Conservation Act depends for its constitutional validity not only upon the territories power in s 122. It also relies upon the other sources of constitutional power described by Gaudron J in her reasons, notably the power afforded by s 51(xxix). This last-mentioned constitutional support is expressly stated, clearly applicable and real. It is not redundant, uncertain or superfluous to the terms of the Conservation Act. Once this is appreciated, for the reasons which Gaudron J gives, s 51 (xxxi) requires that the legislative power of the Federal Parliament, in enacting the Conservation Act, is fettered to the extent of forbidding any law with respect to acquisition of property on terms which are not just[496]. The additional reliance upon s 122 of the Constitution cannot release that fetter. Gummow J is clearly right when he says that, if s 51(xxxi) is engaged, it is not disengaged by the circumstance that the law in question is, additionally, one for the government of a territory.

Although I prefer to face, and answer, the crucial constitutional question which the parties tendered to the Court concerning the authority of Teori Tau, the same result may be reached by this alternative path. I would therefore additionally support my orders on this basis.

Orders

The declarations and orders proposed by Gummow J should be made.