Davis & Ors v The Commonwealth of Australia

~~ • ~ . ,,~;.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1986
B e t w e e n -
LOUIS EDWARD DAVIS,
ALLAN SANTO and
ERNIE CREIGHTON

Plaintiffs

and
THE COMMONw'EALTH OF AUSTRALIA

First Defendant

THE AUSTRALIAN BICENTENNIAL
AUTHORITY

Second Defendant

Demurrer

MASON CJ

Davis

WILSON J

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 MAY 1988, AT 10.19 AM

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MR J. BASTEN: If the Court pleases, I appear for the plaintiffs

in this matter. (instructed by Bernard D. Brassil& Co.)

MR G. GRIFFITHfi QC, Solicitor-General for the Corrnnonwealth:

If t e Court pleases, I appear with my learned friend,
MR A. ROBERTSON, for the defendants. (instructed by
the Australian Government Solicitor)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If the

Court pleases, I appear with my learned friend,
MR H. REICHER, for the Attorney-General for the State
of Victoria. We intervene in the interests of the defendants. (instructed by the Crown Solicitor for Victoria)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned
friend, MR. M. ~UINLAN, for the Attorney-General
for the State o South Australia, to intervene also
in the interests of the defendants. (instructed by
the Crown Solicitor for South Australia)

MR K. MASON QC, Solicitor-General for New South Wales:

If the Court pleases, I appear with my learned friend,
MR. R. SACKVILLE, for the Attorneys-General of
New South Wales and of Tasmania, and we intervene
to put submissions as to the invalidity of portions
of sections 22 and 23 of the AUSTRALIAN BICENTENNIAL
AUTHORITY ACT. (instructed by the Crown Solicitor for
New South Wales and the Crown Solicitor for Tasmania)

MR G.L. DAVIES,QC:

May it please the Court, I appear with

my learned friend, MRS M. WHITE, to intervene for
the Attorney-General for the State of Queensland
to give qualified support to the defendants in the
matter. (instructed by the Crown Solicitor for
Queensland)

MASON CJ:

Yes.

Mr Davies, can you enlighten us as to what

qualified support means, in a succinct and brief

way?

MR DAVIS:

Yes.

In a sentence it means that if, in fact,

the formation and so on of the Bicentennial Authority
is necessary to enable the functions of government
to be carried on, it is incidental to the exercise
of the executive power and therefore within power
but not otherwise, except to the extent that it can
be brought within some specific head such as
copyright and so on.

(Continued on page 2)

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Davis
MASON CJ:	Thank you.	Yes, Mr Bastin?

MR BASTEN:

Your Honour, may I hand up copies of an outline

of argument. In doing so, may I apologize that
it is slightly longer than is usual, and may
I also say that I will not necessarily deal with the arguments in the order in which they are
dealt with there.

MASON CJ: Yes, thank you.

MR BASTEN:

Your Honours, the matter comes before this

Court on the motion of three plaintiffs who are all Aboriginal persons. One operates a printing
and design business in Sydney and two others are
involved in the proposed retail of T-shirts and
clothing made by the first of the three plaintiffs.
Those matters appear from the amended statements
of claim in paragraphs 1, 2, 45 and 46 and are
relevant to the question of the standing of the

plaintiffs to bring this action. The statement of
claim challenges the validity of the AUSTRALIAN
BICENTENNIAL AUTHORITY ACT, but the immediate
concern of the plaintiffs is sections 22 and 23
of that Act, to which I will take the Court in a
moment.
We will not seek to have any declaration made

as to the validity of the other sections of that
Act if the sections in question, 22 and 23, are

found to be valid. The plaintiffs do not suggest
they have any interest in a declaration of
invalidity as to those other sections, however, it
is a matter of relevance to the question of the
validity of sections 22 and 23, in my submission,
which will be a matter which will go to the whole
of the Act and I would seek to take the Court
through the whole of the Act for that purpose.
There is also a challenge mounted to the appropriations
made by the Commonwealth as appears from paragraph 48A
of the amended statement of claim. Now, Your Honours,

the demurrer in this matter seeks to put in issue
the standing of the plaintiffis, firstly, with
respect to the Act and that appears from
paragraphs 2, 3, 4 and 5 of the demurrer.
(Continued on page 4)

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MR BASTEN (continuing): And, may I say that in relation to

those paragraphs, I understand that it is not the
submission of the Commonwealth that the plaintiffs
lack standing to challenge sections 22 and 23 of the
Act and, to that extent, the matters otherwise relied
on in the demurrer will only go to the question of
their standing with regard to the appropriation.
There are also claims in the demurrer as to

the validity of the whole Act in paragraph 1 and,
as to the validity of the appropriations which are
made, in paragraph SA of the demurrer.

Your Honours, the material in the demurrer book
includes various signs which were annexed to an
affidavit put in evidence, or filed, in the proceedings
on behalf of the defendants and also the memorandum
and articles of association of the Authority itself
which is a company limited by guarantee established

under the Australian Capital Territory laws. I
will not seek to take Your Honours immediately to

those parts of the demurrer book. The learned
Solicitor for the Commonwealth has made available
to in that to which I will seek to refer in the
to me and, I understand, other parties a copy of material
the 1987 Annual Report of the Australian Bicentennial

course of my argument. However, if the Court thinks
it would assist it to have that material before it,
I have not objection to it going .in end it might be
appropriate if it were to be before the Court now.

MASON CJ: Well, it is impossible for us to come to a conclusion

as to whether it is going to assist us without knowing
what is in it, Mr Basten.

MR BASTEN:

I think the Solicitor was going to tender it,

Your Honour. I was merely indicating that if it were
done at this stage it might be of assistance to the
Court.

MASON CJ:	Yes.
MR GRIFFITH:	Your Honour, if I may intervene, I did intend to tender it to the Court and we would desire to refer the
Court to some parts of the report as being - - -
MASON CJ:	Yes, well, you may hand it in, Mr Solicitor, and we

will determine at some later stage what, if any, use
will be made of it.

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MR GRIFFITH:	Yes, Your Honour.
MR BASTEN:	Your Honours, may I come immediately to the

provisions of the AUSTRALIAN BICENTENNIAL AUTHORITY
ACT 1980? There are various provisions in the
Act which relate to the internal management
of the Authority and the'Authority' is, of course,
defined in section 3. Section 4 provides that
the Act applies to the Authority notwithstanding
anything inconsistent in the memorandumand
articles of association. Section 5 requires, and
is one of a number of the sections requiring,
certain actions on the part of the Authority
with respect to the Commonwealth Government
and it requires reports to be furnished.

Section 6 provides the relevant minister

to give directions to the Board with respect
to the exercise of the powers of the Authority.
Section 7 gives certain powers to the Prime
Minister in relation to the appointment or termination
of appointment of the chairman. There are provision
in relation to the employees of the Authority
under sectiora 8 and 9, and there are further
prov~s~ons in relation to employees in later
provisions.
Under section 10 of the Act there is provision

that moneys payable to the Authority - I am
sorry, I should read it:
There are payable, to the Authority such moneys as are appropriated by the Parliament for the purposes of the Authority.
The Minister for Finance may give directions
as to the amounts in which, and the times
at which, moneys referred to in sub-section (1)
are to be paid to the Authority.

(Continued on page 6)

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MR BASTEN (continuing): Section 11(1) provides for:

The Board -
of the Authority -
shall prepare estimes -

Subsection (2) provides that the -
Moneys of the Authority shall not be expended
by the Authority otherwise than in accordance
with estimates of expenditure approved by
the Minister.

There are then general powers in relation to the
application of those moneys in section 12.
Section 13(1) provides that:
The Authority may, with the approval of the
Minister but not otherwise, form, or participate
with another person in the formation of, a
company for the purpose of promoting any of
the objects of the Authority -

and they may invest in their own subsidiaries.

Section 14 provides that:
The Authority may, with the approval of the
Treasurer, borrow moneys for the purpose of
promoting its objects.

(3) The Treasurer may, on behalf of the
Commonwealth, guarantee the repayment by the
Authority of -
loans. Section 15 provides that the staff of the
Authority may be appointed on such -

terms and conditions ..... as are determined
by the Authority after consultation with the
Public Service Board.

Section 16 deems the Authority:
to be an intergovernmental body -

for the purpose of the Public Accounts Committee
and section 17 deems it -
to be a Commonwealth authority for the
purposes of Part IV of the PUBLIC SERVICE
ACT 1922.

Section 18, similarly:

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an approved authority for the purposes
of the SUPERANNUATION ACT 1976.
Section 19 exempts the Authority from taxation.
Section 20 preserves some rights of public servants
who are appointed as employees or officers of the
Authority and Section 21 provides for:
the winding up of the Authority -

and notes -
It is hereby declared to be the intention of the Parliament that the winding up of the Authority should be completed on or
before 30 June 1990.
(Continued on page 8)

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MR BASTEN (continuing):

Subsection (4) provides for the

distribution of the property of the Authority on
the winding up and requires the division amongst
the Commonwealth and the States in the shares in which

they provided its funds. Subsection (6) notes that
the provision by the Commonwealth is to be determined
by the amount appropriated by the Parliament for
the purpose of payment to the Authority. Those are the general provisions and indeed, in my submission, most of the Act which relates to the regulation of
the Authority, both internally and in relation to
external operations.
The two sections of particular concern are sections 22 and 23 to which I now turn. Section 22
hidden behind the symbol "&c", which is of
is entitled "Protection of name, symbol, &c., of

significance for this case. Subsection (1) provides
that:
Subject to sub-section (4), a person who,
without the consent in writing of the
Authority -
(a) uses the name, or an abbreviation of
the name of the Authority, a prescribed
symbol or a prescribed expression in
connection with a business, trade,
profession or occupation; .....
is guilty of an offence.

Subsection (4) relates only to a limitation on prosecution
for the use of an abbreviation and not in relation to

other aspects of that prohibition. Your Honours may
understand the difficulty I had in discussing this
case with my instructing solicitor without using
the name of the second defendant in the course of
those discussions.

The other provisions of section 22(1) relate

to the sale or offer for sale, and so on, of goods
to which the name or one of the other matters has

been applied. Paragraph (c) refers to the use of
the name in relation to goods, or the promotion thereof.
Paragraph (d) relates to the import into Australia of
goods to which the name has been applied.
(Continued on page 9)

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MR BASTEN (continuing):

Any of those activities without

the written consent of the Authority results in
a contravention of that section. Subsection (2)
provides some further offences in relation to
activities of associations. Paragraph (a) deals
with the name, abbreviation and so on - not a
prescribed expression - as used in the:

name or emblem of an association -

or
a newspaper or magazine owned or published
by, or published by or on behalf of an
association; or
..... in connection with any activity of the

association -

1n subparagraph (iii)
so as to imply that the association 1s 1n
any way connected with the Authority.

And then paragraph (b) provides that in relation
to a prescribed expression:
a prescribed expression is used by an association
in connection with any activity of the association -

then there is the commission of an offence, and it
may be noted that "association" includes both bodies
corporate and unincorporate. Subsection (3) provides
for the penalties. Subsection (4) is one to which
I have alread turned and provides a limitation
on prosecution in relation to the use of an
abbreviation which, unless it was intended to imply
a connection with the Authority, should not be
taken as implying a connection if it is unlikely
to be taken objectively to imply any such connection.

I pass over subsection (5) for the moment.

Subsection (6) contains definitions of the matters dealt with in the prohibition, namely, the
abbreviation which is:
any combination of words or letters, or both
words and letters, that is capable of being
understood as referring to the Authority.

It refers to the official symbol of the Authority which is set out in the schedule; it refers to
certain prescribed symbols which are defined as:
emblem, brand, design, symbol, logo or mark
that:

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(i) is identical with an official symbol
of the Authority; or
(ii) so nearly resembles an official symbol
of the Authority as to be capable of being
mistaken for an official symbol of the Authority.
And then there is reference to the prescribed
expressions which refer to one of a number of

expressions in combination with either the date 1788, 1988 or even 1 88 and those prescribed
expressions include words in common usage such

as: "Bicentenary", "Bicentennial", 11 200 years",

11 Australia 11 -

and so on.
(Continued on page 11)

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MR BASTEN (continuing): Paragraph (e) relates to the

application of those matters to goods. Paragraph (f)
applies to the phrase "used in relation to goods",
their promotion and so on. Subsection (7) requires
the consent in writing of the Attorney prior to the institution of proceedings for an offence under the section. Subsections (8) and (9) are designed, as
I understand them, to prevent anything in the section
interfering with existing rights in relation to
trade marks or copyrights or designs. Section 23
then provides a further penalty in the form of a
forfeiture of goods in relation to which an offence
has been conunitted under 22(1). Section 24 provides
that the rights and powers given under the two
preceding sections are not in limitation of any other
protection given to the Authority.

DEANE J:	Mr Basten, if you use "Sydney" in conjunction with
the year "1988", is there anything like subsection (4)
which applies to preclude conviction?
MR BASTEN:	Not in my submission, no. There is no such provision in relation to a prescribed expression.

DEANE J: It seems a bit odd that subsection (4) should apply

to the actual .use of the name of the Authority or
an abbreviation and that there is not something
dealing with the use of the word "Sydney" or the
word "Melbourne" -

MR BASTEN: Yes.

DEANE J:	- - - with the year,but there is not anything?
MR BASTEN:	I do not read the section as having anything,

Your Honour. I am not sure that the submission is
put against me that there is. It is part of - - -

DEANE J:

You have answered - I just assumed there was and I
was looking for it and could not find it.

MR BASTEN:

Yes, I think not, Your Honour,and it is part of

our submission that whatever attempt there may be in
this Act to protect the name of the Authority and so
on, the section goes far beyond that to give the
Authority monopoly rights in relation to expressions
which are in conunon use in the English language and
to provide those rights throughout Australia and that,
in our submission, is not a matter which is justified
under any relevant power of the Conunonwealth and the
width of the prohibition in section 23, in our
submission, illustrates the strength of that argument.

DEANE J: It may be a parochial and an irrelevant question but

why should the use of "Sydney" be precluded and the
use of "Hobart" not be?

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MASON CJ:	Or even "Melbourne".	"Melbourne" is not - - -

DEANE J:	I mean - or "Melbourne" is - - -
MR BASTEN:	Yes, "Melbourne" is but -

DEANE J: ..... witi.1 "l'ielbourne", it is probably a more

relevant question.

MR BASTEN:	Your Honour, I cannot answer that question.
MASON CJ:	Mr Basten, there was one question I wanted to

ask you. The Act does not, as most statutes do,
contain a section stating the objects and functions
of the Authority yet, none the less, section 6
refers to them. Is the reference to objects and
powers in the memorandum of association?

MR BASTEN: That is my understanding, Your Honour, yes.

MASON CJ:

So we have to look to the memorandum of association

to ascertain what the objects and powers of the
Authority are?

MR BASTEN: That is so, yes.

BRENNAN J: And they can be amended under the Companies

Ordinance?

MR BASTEN:

I think they can, Your Honour, though subject to

any directions given or any potential inconsistency
with this Act because of section 4 which provides
that in casesof inconsistency, this Act will override
and, of course, in relation to the daily expenditure
of funds by the Authority, it must be not only in
accordance with its objects and so on but, also,
in accordance, at least in relation to Conn:nonwealth
moneys, with the budget or statement of expenditure
which has been approved and submitted to the Minister.

(Continued on page 13)

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MR BASTEN (continuing):

So in direct and indirect ways there

are significant controls over how the Authority would
operate beyond the object set out in the articles,
in the memorandum of association.

BRENNAN J:	Are there any provisions would expose the exercise of the licensing power of the Bicentennial to judicial
review?
MR BASTEN:	The Solicitor suggesting both the AD(JR) ACT and

section 39B · · in so far presumably as the officers

are Commonwealth officers. I am happy to accept that
that is so, Your Bonours,, I have not given it
consideration.

MASON CJ:

Mr Basten, do I take it that paragraph 20 of the

amended statement of claim sets out in full the

objects of the Authority as they are stated in the
memorandum of association?

MR BASTEN:

Well, perhaps I should take the Court to the

memorandum of association. I think the answer to that
is yes.

WILSON J:

Before you go to that, Mr Basten, before we get

too far from the answer you gave a moment ago to
Justice Brennan, do I take it that there is no
opportunity to review a decision on the merits by
going to the Administrative Appeals Tribunal?

MR BASTEN:

I should withdraw part of the answer I gave to

Justice Brennan. I think I had given that matter
consideration and formed a view that it was reviewable

under the JUDICIAL REVIEW ACT. But in answer to
Your Honour Justice Wilson's question I think that
is so. That review would, of course, be limited to
the procedural fairness matters raised under that
legislation.

TOOHEY J:

How would it be reviewable under the JUDICIAL REVIEW

ACT, Mr Basten?

MR BASTEN:

In so far as a decision was being made under this

enactment it would be reviewable, Your Honour.

TOOHEY J:

There is no question about that.

One could imagine

a lot of decisions would be made which, arguably, are
not made under the enactment but made an exercise
of some power in the memorandum or articles?

MR BASTEN:

Well, that is so.

I am sorry, I should have

restricted that answer, Your Honour. I think the
consideration which I gave to it was, with respect,
to any consent given under section 22 and that would
more clearly be a decision under this enactment. But
I take Your Honour's point, that in the broader sense

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many of the decisions would not be made under this

enactment. Your Honour the Chief Justice referred
me to clause 20 in the amended statement of claim. full objects of the Authority which are basically, in simple terms:
to promote, co-ordinate and implement .....
a national programme of celebrations and

activities ...... to commermorate ..... the

first European settlement in Australia -

and do various things in pursuance of that primary
goal.

(Continued on page 15)

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MR BASTEN (continuing): Yes, my friend, the Solicitor,notes

that the objects are indeed set out in the demurrer
book at pages 27 and 28 because the memorandum
of association is set out there.

MASON CJ:	Yes.
MR BASTEN:	Your. Honours, if the Court pleases, I would turn, in relation to questions of the validity of this legislation,to consideration irrrrnediately of
justification for sections 22 and 23 in their own
specific terms and it is arguable, as I understand it and will be argued, that those sections themselves
may be a valid pursuance of the trade marks power
in the CONSTITUTION. In my submission,that argument
is one which does not appear irrrrnediately on the
face of the sections and that the scope of the sections must,in any event, go well beyond any
justification which may be provided by the trade marks power. And one may note at the outset that
the prohibitions contained are in relation to the use of expressions, symbols and marks which do not
necessarily identify the goods or the owner or
the origins of any goods related to the Authority itself. And indeed, in so far as the trade marks power itself involves a direct association with
trade and trade in a market-place, it would be my
submission that the Authority is not so engaged, and
certainly that in so far as it is engaged, and that
is to a very very limited extent, this power goes
so far beyond that as not to be fairly related to
the protections which the trade marks power might entitle the lilthority to obtain. And indeed,one
might wonder why, if that were the sole basis of the
sections, then the Authority could not have relied
as other traders must do upon the existing
legislation.

In relation to the constitutional power in
relation to trade marks, it is my submission that
the Court would give consideration to the matters
set out as determined in the UNION. LABEL case -

ATTORNEY-GENERAL FOR NSW V BREWERY EMPLOYEES UNION
OF NSW, (1908) 6 CLR 469, as providing at least
an immediate reference an~ as I understand it, the
only consideration of the power which has been given
in detail by this Court.
(Cotninued on page 16)

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MR BASTEN (continuing):

I should say that there may have

been some increase in the denotation of the power
over the years which would render aspects of the
decision in this case not necessarily aspects which
would now be followed but, in my submission, the
substance of the position accepted by all five
of Their Honours is correct and would appropriately
be considered as the necessary test in considering
any attempt to rely upon the trade marks power.
The approach adopted by the Chief Justice

and Justice Barton and O'Connor was somewhat narrower
than that adopted by the two dissenting Judges,
Justices Isaacs and Higgins, but our submission
is that on either approach these marks would, for
the most part, not fall within the definition of
"trade mark". Perhaps I can take the Court most
easily to the passage at page 540 where there is
a succinct statement in the judgment of His Honour
Mr Justice O'Connor as to the requirements, the
essentials, of the definition of the term. In
the second full sentence on that page His Honour
notes:
All definitions of the term agree on certain
essentials founded in the origin and very
nature of a trade mark. First, the
proprietor of a trade mark must have some
trade or business connection with the goods,
such as of owner, manufacturer, seller, or
as having selected, packed, or performed some
other trade or business operation on them,
and the mark must be used by him in the course
of and in relation to that business connection.
Secondly, the mark must be capable of
distinguishing the particular goods on which
it has been used from other goods of a like
character in relation to which other persons
have had a business connection of the like
kind.

Your Honours, there are a number of comments one
might perhaps make in relation to the present scope
of the trade marks power as understood under present
legislation. There is an extension of course now
to goods and services which is not covered by
His Honour in that quotation and is not considered
in any of the other judgments in relation to the
extent of the trade marks power.
(Continued on page 17)

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MR BASTEN (continuing):

There is also the possibility now

that a trade mark may be registered in anticipation of
use on goods, without necessarily having been so
used in the past, and there is also - I withdraw

that. The important characteristic which is noted
first by His Honour is that the mark must have an
association and an ability to identify the goods of
the owner and, in our submission, the proposed
prohibitions in this case make no such reference
to the goods of the owner and, indeed, there is no
indication of any goods with respect to which these
marks would provide a form of identity, and it is
inherent in the notion of a trade mark that they are
related to specific goods or services in order to be
protected.
If those elements are correctly surmnarized by His Honour, and, in my submission, they are, then
the present prohibition extends so far beyond them
as to be hardly easily referable to them. There are
similar statements in the judgment of the Chief Justice
at page 512 to page 513 and although His Honour notes
five specific aspects of a trade mark, I am not sure that, for present purposes, His Honour takes it very
much further than the extract which are referred to,
and I refer in particular to the passage at the top
of page 513 in relation to the concept at
point (2). His Honour Mr Justice Barton provided
a definition at page 525, towards the bottom of the
page, where he said:
What I take a trade mark to be then,

using my own words, is this: A mark
which is placed on goods (1) to
distinguish them as the goods of the

person who uses the mark; (2) exercising
dominion over the goods, whether he has
absolute ownership or only a contractual

right to the possession; (3) in the
course of his trade; and (4) exercising a right to the exclusive use of the mark.

Your Honours, there are also passages indicating
views of the concept of a trade mark in the judgments
of the two dissenters, Justice Isaacs at page 584
point 3, and Justice Higgins at page 607 point 4;
and the difference between Their Honours really turned,
in my submission, upon the question of whether the
mark inserted to indicate union membership of the
employees had been recognized as a trade mark or not
at the time of the CONSTITUTION, and that is a matter
which provides no significant difference of opinion
which is relevant to the present case.
Perhaps if I may turn back to section 22, it is

notable - :1.nd perhaps I need not take Your Honours to
specific authority in relation to this matter - that

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the purpose of a trade mark has been, in my
submission, widely accepted as involving a mark
designating the origin of the goods and not providing
the owner of the mark with control over those goods
in the market-place, and if that also is part of
a correct understanding of the concept of trade mark,
then s e c t i on 22 ( 1) (b) , which appears to provide
a continued control throughout all use of the goods in
the market~place is an extention which is beyond the
theory of the use of a trade mark, both as understood
now, and as understood in 1901.
Similarly, it may be said that the element of

distinctiveness which is recognized as being an
inherent part of the concept of a trade mark in its need to distinguish the origin of the goods is not in any way contained in a large number of the
provisions dealt with in the prescribed expressions,
and a number that Your Honour Justice Deane referred
to earlier.
(Continued on page 19)

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MR BASTEN (continuing): In our submission, there is no justification for considering that section 22 can in whole be

justified on the basis of that power. The question
of the use of the name of the Authority, or
an abbreviation of the name of the Authoirty,
which may be a slightly different matter, are
not themselves, in my submission, matters which

need to be justified under the trade marks power. which would entitle the Commonwealth to give
protection to the names of a corporation incorporated
in the Australian Capital Territory.
The question of what, however, is an abbreviation

in so far as it were to be considered a matter
for justification under the trade marks power may itself be subject to difficulties in that
the initials of names have commonly been held
not to constitute trade marks because they can be
of common origin and the initials of the Authority,
for example, are themselves initials which apply to a
number of otherassociations and institutions
which readily come to mind.
I do not think I seek to take Your Honours at this stage to any other authorities in relation
to the meaning of the term "trade mark". In
my submission the UNION LABEL case provides
a sufficient and adequate test of what is required
by that concept in a constitutional sense.
Your Honours, may I turn then to the question

of justification of these sections under the

territories power? The Act itself, of course,
relates to a corporation which is established
in a territory and there is no doubt, in my

submission, that the Cannonwealth is en tit 1 ed

for the celebration of the bicentennial in the

to take all appropriate steps in order to provide is incorporated, but one should note, in my

no inherent connection with the ACT, and to the submission, that the celebration itself has
extent that that would permit action outside
that Territory there must be a very limited
power in the Commonwealth in order to maintain

a sufficient nexus with the Territory. The
Commonwealth has undoubted powers in relation
to Territory corporations and any activities
thereof which have a sufficient rational nexus
with Territory operations. But, in my submission,
that cannot give the Commonwelath under the
territories power sufficient authority to provide
a territory corporation with monopolistic powers
over the use of the English language throughout

ClT14/l/JM	19	3/5/88
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Australia. This, in my submission, is a very different case from those such as LAMSHED V LAKE
and THE AUSTRALIAN NATIONAL AIRWAYS COMMISSION which
were considered in relation to the trading activities
of the Territory.
Nor, in my subm,ission, can the Commonwealth

use a Territory corporation as a vehicle for activities throughout Australia where it has otherwise no power beyond those enumerated in
the Commonwealth, which would not satisfy that

end. And, in our submission, what this Act
shows is an attempt to use the territories power
to that end. In particular, sections 22 and
23, in our submission, would fall foul of those
limitations on section 122 of the CONSTITUTION. Your Honours, I think I need say at this
stage no more about the territories power. reference to the corporations power and I would turn to the extent to which the Commonwealth
may be able to justify the powers it imposes
in this Act through the power with relation
to trading for financial corporations.

DEANE J:	Mr Basten, is the prohibition on the use of
these words restricted to 1988, or while there
is an Authority to give consent?

(Continued on page 21)

Cl Tl4/ 2 / JM	20	3/5/88
Davis

MR BASTEN: It certainly is not, in my submission, restricted

to 1988.

DEANE J: There is no clause like that requiring the

winding up of the Authority?

MR BASTEN:

That is so. Once the Authority has been wound

up it is then,of course,impossible persumably to
obtain the consent in writing to the use of those
provisions - prescribed expressions.

DEANE J: It would then be a question, I suppose, whether

they continue to operate or not?

MR BASTEN:

That is so, yes.

I do not seek to take that

point any further other than to note there is

an ambiguity there. I am sorry, my friend,the
Solicitor for New South Wales, referred me to

section 22(9) of the Act. I am not sure that that
is relevant.· It relates to the prior use,
I think, of the expressions rather than their continued
use after. Your Honours, perhaps if I might turn
to the question of the corporations power as

a justification for the provisions in the Act. I
refer in the outline of argument at paragraph 9
to a number of authorities with respect to the
proper test which may be applied in relation to
whether or not a law will fall within the power
in section 5l(xx). Perhaps it is sufficient,
for my purposes, to turn to the TASMANIAN DAM case~
(1983) 158 CLR, where other authorities which

are referred to have beenronsidered. And may I
say that the precise matters which were in issue in
the DAM case do not, in my submission, provide an
answer to the question which is before this
Court now.
In our submission, the substance of this Act,

not only sections 22 and 23, but the whole of

the Act indicates that it is indeed a law with
respect to a particular corporation and that is not

a matter which was directly in issue in the DAM case
although it was cormnented on. This Act affects,
both directly and indirectly, various aspects of the particular corporation which is named in the
Act. I note that it does not purport to affect that corporation in its capacity as a trading or
financial corporation, nor is there any indication
in this Act that the Cormnonwealth considers the Authority to be either a trading or a financial corporation. And in my submission, there is no
evidence to suggest that the corporation is such.
But before turning to that point, may I note

a dictum in Your Honour Justice Wilson's judgment
at page 202 of the DAM CASE, at the top of the page,
where Your Honour noted that:

ClT15/l/SR	21	3/5/88
Davis

To be a law with respect to trading

corporations, the substance of the law
must bear a sufficient relation to those
characteristics of such corporations which

distinguish them from corporations which
cannot be so described.
And further on in that same paragraph, Your Honour
said:
I do not find it necessary to consider whether the nature of the power precludes its exercise in a manner which confines
its operation to a strictly localized
situation and perhaps to one corporation.
As at present advised, it seems to me that
there is a necessary generality attending
a law with respect to any of the
corporations mentioned in section Sl(xx).
(Continued on page 23)

ClTlS/2/SR	22	3/5/88
Davis

MR BASTEN (continuing):

We would respectfully adopt the

concept that there is required by section 5l(xx)
that sufficient generality. That is not a matter
which, as I understand it, was commented on by any
other members of the Court in that case other than,
perhaps, obliquely by Justice Murphy who at page 179
suggests, in the middle of the page, that the
corporations power:
enables Parliament to make laws covering all
internal and external relations of all or
any foreign corporations and trading or
financial corporations;

Whether His Honour there intended to suggest that
a single corporation could be the subject of that
law is not clear and he may have had a more limited
class of such corporation~ either trading or financial,
in mind.
The principal submission in relation to the

question of whether one characterizes this law
as one which, in terms adopted by a number of members
of the Court and particularly Your Honour the
Chief Justice at page 152, is:
a law which exhibits in its practical operation
a "substantial connexion" with a relevant
head of power.

The relevant head of power, of course, being distinct
from a specific corporation which may, or may not,
fall within that particular head of power and the
Chief Justice noted, at page 119, that the connection
must be "direct and substantial" and similar tests
were applied in other judgments.

MASON CJ:

What are the arguments for saying that the power

ought to be so restricted; that it does not authorize
a law that deals with a particular corporation;
that it does not, for example, authorize the

Parliament to set up a financial corporation?

MR BASTEN:

The arguments, Your Honour, relate to, in my

submission, the restrict ions on the enumerated powers
of the Commonwealth. If one says that the Commonwealth
may, under that power, establish a corporation
which falls within the power then it may commence
undertakings which it would not have power to do
otherwise and, in our submission, that is what
would have happened in this case. If one assumes,
for the purposes of this case, that the Commonwealth
had no power to provide for the purposes of the
Authority then to permit it to establish a corporation
which could, if it were a trading corporation,

ClT16/l/AC	23	3/5/88
Davis

exercise those powers and follow those purposes
would, in my submission, be a very significant
inroad on the enumerated powers of the Commonwealth
and that would also apply, of course, to an
exercise of the power either throught the corporations
or the territories power.

MASON CJ: Well, that argument is directed to setting up
a financial corporation or a trading corporation;
what about regulation of a particular financial
or trading corporation?

MR BASTEN:
Your Honour asks me in terms of the policy behind
the restriction'. When one looks at the attempt
to regulate a particular corporation, as indeed
has occurred in this particular case, it may, or
may not, I suppose, be an attempt to execute a
purpose which would not otherwise be within the

powers of the Commonwealth. One can imagine
regulation of particular corporations for a wide

range of purposes; one might regulate in relation
to matters such as industrial relations which might

have some basis in the CONSTITUTION. I would not

seek to answer Your Honour's question in a general sense but rather to say that it would be necessary to distinguish the purpose of regulation but it
would not be immediately apparent, in my submission,
that a law which sought to regulate a particular

corporation would be properly said to be a law in relation to the object of power because the
mere existence ~f one corporation which falls within
the definition does not, of itself, enable one
to characterize the law as such.
And I think Your Honour may have quoted, though
with comment, the caution noted by His Honour the
Chief Justice in STRICKLAND V ROCLA PIPES that
it would not necessarily follow and, presumably,
in some cases it might follow that a law with
respect to a trading corporation specifically would,

indeed, be a law within 5l(xx). (Continued on page 25)

ClT16/2/AC 24 3/5/88
Davis

MR BASTEN (continuing):

But my answer to Your Honour's

question is perhaps more simply that Sl(xx) should
not entitle the Commonwealth to execute purposes
which it could not otherwise execute and one would
need to look at the individual cases to determine
that.
The other matter which was of concern to the

Court in the TASMANIAN DAM case was whether a law
with respect to a trading corporation was properly
restricted to the trading activities of the
corporation and in so far as Your Honour's question
was directed to the trading activities then there
is no such restriction retained, in my submission,
in the majority of Your Honours in that case but
I do not know that that would necessarily affect
the question that Your Honour the Chief Justice
asked me.
May I also, in that context, refer to the passage in Your Honour Justice Deane's judgment
at page 270 where Your Honour embarked on an exercise
in relation to the appropriate characterization
of the law, two-thirds of the way down the page,
by analogy with cobblers. Your Honour said:
A law which applied only to cobblers

(identified by reference to their trade) and
prohibited them from engaging in certain
activities away from their lasts could not
properly be characterized as a law with respect
to the boot-making activities of cobblers;
it could, however, properly be characterized
both as a law with respect to cobblers and
as a law with respect to the prohibited
activities. Likewise, a law which applies
only to trading corporations (identified by
reference to their character as such) and
prohibits them from engaging in certain non-
trading activities cannot properly be
characterized as a law with respect to the

trading activities of trading corporations;
it can, however, properly be characterized
both as a law with respect to trading
corporations and as a law with respect to
the prohibited activities.

In so far as the DAM case is authority for the proposition that the power under section Sl(xx)
is not limited to the trading activities or financial
activities of corporations, it may be that in
respect to a particular corporation it could be
said that one does not need to look at the purposes
directed by a law relating to that corporation.
In my submission that might be a different circumstance because it would not necessarily be the case that
a law with respect to a particular corporation

ClT17/l/ND	25	3/5/88
Davis

was a law with respect to the head of power and
one might indeed need to look at whether it was
regulating trading or financial activities.
Your Honours, might I turn then to two more

general heads under which it may be sought to
justify this particular legislation. Firstly,
the question of the so-called implied nationhood power and, secondly, the related question of the
appropriation power and in so far as it becomes
a basis for support of this Act, that plus the
incidental power. In my submission the implied

nationhood power has not been relied on as a
basis for justifying any Commonwealth legislation
with respect to the internal activities within
Australia. It was considered as a possible basis
of power in the DAM case but, in my submission,
was rejected by a majority of the Court and possibly
by all who considered it.
May I turn to Your Honour Justice Dawson's judgment in the DAM case at page 321.
(Continued on page 27)

ClT17/2/ND	26	3/5/88
Davis

MR BASTEN (continuing):

The discussion in that case was

specifically related to section 6(2) paragraph (e)
of the WORLD HERITAGE PROPERTIES CONSERVATION ACT
which sought to rely on that power in relation to
property which is part of the heritage distinctive
of the Australian nation by reason of specified
qualities. Your Honour notes at the top of page 322
that the power is one which has been considered
possibly as:
"incidental to the existence of the
Commonwealth as a state and to the exercise
of the functions of a national government".

Your Honour notes a number of authorities in which
it has been considered including VICTORIA V THE
COMMONWEALTH, half-way down the page, noting that
the power has not really been explored at all

up to this point in time. May I read the following
paragraph at point 6:
I would seek to make only one comment in this
case because it is relevant to some of my
earlier remarks. In speaking of nationhood,
it is important to distinguish between the
nationhood which was achieved upon federation
and the nationhood which may be said to be
the result of the attainment of international
personality. Powers, executive rather than
legislative, may be inherent in nationhood
of the latter kind, but they are derived from
the recognition of a status rather than from
any constitutional provision. It is to the
CONSTITUTION which one must look to find
powers which arise from the nationhood of
the former kind.
In this case, however, it is sufficient

to say that even if it be thought by some to be
fitting that measures for the protection or
conservation of the property in question be

undertaken by the Commonwealth because that property is part of the heritage of the Australian
nation, no such view was taken in the division
of power made by the CONSTITUTION. Although
it can be said that the protection or conservation
of the Australian cultural and natural heritage
is in the national interest (and the submission
can be put no higher), that does not carry with
it the implication that the Commonwealth has
power to legislate with respect to the
matter.

Now, in my submission, that passage applies with equal force to the celebration of the bicentennary
and I draw particularly upon the distinction which
Your Honour noted between the internal and external
powers in relation to nationhood.

ClT18/l/MB	27	3/5/88
Davis

In the US Supreme Court a clear line has been drawn between those powers which operate
domestically and those which operate internationally.
It has been held that there is no implied nationhood
power which arises from the internal operation of

the Commonwealth. May I refer Your Honoursparticularly
to the decision in CARTER V CARTER COAL, 298 US 238,
a decision of the United State Supreme Court.
At page 289 is the opinion of the Court, which
draws upon a number of earlier cases including the
decision in KANSAS V COLORADO, which is the leading
authority and is quoted at some length at page 293. The case was concerned with the question of
the control of the coal industry and at the top of page 290 at about point 3 the Court notes that the preamble to the legislation refers to matters:
that the distribution of bituminous coal is
of national interest, affecting the health
and comfort of the people and the general
welfare of the nation.

There is then a reference to the possibility that
it may be justified under the ltcommerce" power,
a matter to which the Court turns in more detail.
And then at point 8 on the page the Court notes
in a line beginning:
that the powers which Congress undertook to
exercise are not specific but of the most general
character -

it refers back to the matters in the preamble - namely to protect the general public interest
and the health and comfort of the people
to conserve privately-owned coal, maintain
just relations between producers and employees
and others, and promote the general welfare,

by controlling nation-wide production and
distribution of coal. These, it may be
conceded, are objects of great worth; but
are they ends, the attainment of which has
been committed by the CONSTITUTION to the
federal government? This is a vital question;
for nothing is more certain than that beneficent
aims, however great or well directed, can
never serve in lieu of constitutional power.
(Continued on page 29)

ClT18/2/MB	28	3/5/88
Davis

MR BASTEN:

Then at the bottom of page 291 in the final

paragraph the court notes:
The proposition, often advanced and as
often discredited, that the power of the
federal government inherently extends
to purposes affecting the nation as a
whole with which the states severally
cannot deal or cannot adequately deal, and
the related notion that Congress, entirely
apart from those powers delegated by the
Constitution, may enact laws to promote the general welfare, have never been
accepted but always definitely rejected
by this court.

Your Honours, at the bottom of page 292, some
matters, indeed which are covered by the Australian of which might, with great assistance to the nation,
have been included in the US CONSTITUTION, but which
were not, and the quotation from KANSAS V COLORADO is

to the same effect at the bottom of page 293. I do
not take Your Honours to that decision, nor to the decision to which I can just make reference in the
UNITED STATES V CURTISS-WRIGHT EXPORT CORPORATION,
299 US 304, and perhaps I can note the reference at
page 315 to page 319 where the distinction is drawn
quite clearly between those matters which are
external affairs and those which are related to the
internal domestic management of the country and
the proposition is reiterated that there is not, and
never has been, accepted in the United States any
implied power in relation to matters not within the
enumerated powers but which are said to be of internal
national concern.
In our submission, that approach is properly applicable to the CONSTITUTION of this country, based
as it similarly is on particular limited enumerated
powers and, of course, the powers themselves are
all plenary, but they are limited in their number

and the principle upon which the US constitutional
cases is based is the same which, in my submission,
would be applied here, namely that it is difficult,
if not impossible, to imply any test from the
specific powers in the CONSTITUTION which would provide
a steady and objective limit to the question of what
might be within the nationhood power and, if one
is left with an unlimited and ill-defined power, then
the question of controlwithin enumerated powers becomes
one of great difficulty.
There are, of course, references in other cases

to the applicability of a nationhood power and, in
my submission, there are no matters which are clearly
matters which need to be dealt with in this Court in

ClT19/1/HS	29	3/5/88
Davis

relation to this particular Act which need take me

to the other cases. The particular legislation
here is concerned with the celebration of the
settlement which occurred in Sydney in 1788. It
may, of course, be of great assistance if there is
Commonwealth authority to co-ordinate and promote

matters relating to that celebration. It may also
be of great assistance if the Commonwealth had
authority to deal by way of expenditure, and so on,
with the general social welfare of persons
throughout the country, as was discussed in the AAP
case. However, if that latter authority does not
exist, in my submission there is no greater argument
for the authority in the present circumstances.

BRENNAN J:

Would your argument apply to a celebration of

a centenary of Federation?

MR BASTEN:

I was going to come to that,

Your Honour.

That might well be a different category from the present category which, of course, is not related
to the federation of the country. In my submission, one would need to look at that as a different category of case, and it may be that just as one can justify
certain powers in relation to the maintenance of the
CONSTITUTION, one could extend those powers to a
celebration of the federation of the country.
In my submission, that would be a difficult argument
to run and it is not one I would seek to support in
the present case.
(Continued on page 31)

ClT19/2/HS	30	3/5/88
Davis

BRENNAN J: It is just a question of how far your argument

based upon internal activity of the Commonwealth
should be accepted.

MR BASTEN:

In my submission it would be difficult to find

a power in the Commonwealth per se to carry out
that function if that argument is accepted and I
do not shy away from that. There are of course
other ways in which it could be carried out and
I do not for one moment doubt that it would be

carried out in some way. It is really the mechanism
rather than the end. It would also be necessary
to consider whether the power had been exercised
in a way which involved coercion as well as merely
promotio~ although not on the argument I was
putting a moment ago, a distinction may be drawn
between the coercive elements and the non-coercive

elements of the exercise of that power. But in
my submission, it would be difficult and possibly
incorrect to infer any power to celebrate the
federation from the implied notion of power.
If that argument is not accepted, however, it

is nevertheless, and this is the second limb of
our submission, true to say that those casesc.hl which the
nationhood power has been discussed as a basis
and indeed that matter was expressly adverted to
for either expenditure or legislation by the
by Your Honour Justice Wilson in the TASMANIAN DAM
case at page 203; point 7. Perhaps I could just
8:
take the Court to that particular passage. point
I know of no occasion when a coercive law
declaring certain conduct to be unlawful
and imposing penalties has been enacted
by the Parliament otherwise than pursuant
to a given head of power.

And we would respectfully adopt that as not only

true in fact but as reflecting correctly the
limitations of the CONSTITUTION upon the Commonwealth

Government. Your Honour notes in the middle of
page 204 that it was:
unnecessary, for the purposes of this case,
to consider the existence and scope of a
non-coercive legislative power inherent
in the fact of Australia's nationhood.

Now, Your Honours, although it is perhaps a matter
which has not been dealt with, it has been the subject
of a number of comments, both in the TASMANIAN DAM

ClT20/l/SR	31	3/5/88
Davis

case and in the AAP case. I would not seek to take
the Court to all those particular references but
if I may note that the Chief Justice in the TASMANIAN
DAM case adverted at pages 107 to 109 to the
existence or possible existence of the power and
referred in some detail to Your Honour the Chief Justice's
corrnnents in the AAP case and in particular the
matters which might give rise to caution in
adopting and relying on such a power to justify
Corrnnonwealth legislation. His Honour at page 109,
point 6, noted in relation to the particular matter
at hand:
The protection of the Parks -

the Tasmanian parks -
is not so complex a matter, and does not involve action on so large a scale, that it requires national co-ordination to
achieve, assuming that to be a test.

His Honour left the matter open. Your Honour
the Chief Justice, I think, did not refer to the
power in that case, nor did Mr Justice Murphy
although he noted it as an argument at page 182, point 5.
Your Honour Justice Wilson I have referred to.
Your Honour Justice Brennan, I think, did not
advert to the question. Your Honour Justice Deane
at page 252 did give consideration to the inherent
power in relation to section 6(2)(e) noting with
other corrnnentors that the limits of the power

"remain unexplored". And Your Honour in the middle
of page 252 notes that:
They have been suggested, in the context of an appropriation of moneys from consolidated revenue, e.g., exploration
itself in both physical and intellectual
fields.

(Continued on page 33)

ClT20/2/SR	32	3/5/88
Davis

MR BASTEN (continuing):

At the bottom of the page

Your Honour referred to the COLONIAL SUGAR case
and SMITH V OLDHAM and noted:
There are, no doubt, areas within the plenitude of executive and legislative power
shared between Commonwealth and States which,
while not included in any express grant of
legislative power, are of real interest to
the Commonwealth or national government alone.
Even in fields which are under active State
legislative and executive control,
Commonwealth legislative or executive action
may involve no competition with State
authority; an example is the mere
appropriation and payment of money to assist
what are truly national endeavours.

That is, of course, in its implicatio~ inconsistent
with my first submission in relation to the domestic -
or I understand it to be inconsistent with my first
submission as to the domestic powers under the
implied power but even if it is an indication of
the appropriation of truly national internal
endeavours, it is still my submission, not indicating
any justification for the sort of coercive powers
in support thereof which are contained in
sections 22 and 23 of this Act. And I think
Your Honour Justice Dawson, at pages 321 to 323,
was more concerned to limit the possible extent
of the power in a passage to which I have already
referred.

In my submission there is, therefore, no

authority for the proposition that in terms of
the coercion of the kind we find in sections 22
and 23 any implied nationhood power could be relied
upon. It was noted tha~ at least in relation to
the AUSTRALIAN ASSISTANCE PLAN case to which I
would turn briefly, the power was noted to be relevant
in respect of appropriations. There is, however,

a passage in Your Honour the Chief Justice's

judgment which suggests a slightly broader base
for the discussion and that appears in 134 CLR 338,
and the passage to which I would seek to take the
Court appears at pages 396 to 397.
The question, of course, being considered

by Your Honour there was the limit given to the
words "for the purposes of the Commonwealth" in
section 81. It will, in due course, be our submission
that the narrower approach is to be taken in relation
to those words in so far as they are relevant to
the determination of this case and in so far as
the purposes are to be limited to the purposes
within the CONSTITUTION for present purposes it
is not necessary to consider the implied

ClT21/l/ND	33	3/5/88
Davis

nationhood power which, on our submission, would
not extend this far.
But in the middle of page 396 Your Honour

noted that this is not to say - I am sorry, having
indicated a wider view of the term "purposes of
the Commonwealth" in section 81:
But this is not to say that the

Commonwealth has an unlimited executive power
or that a statutory appropriation provides lawful authority for the engagement by the
Commonwealth in particular activities. An
appropriation, as I have explained, has a
limited effect. It may provide the necessary
parliamentary sanction for the withdrawal
of money from Consolidated Revenue and the
payment or subscription of money to a
particular recipient or for a particular

purpose but it does not supply legal authority
for the Commonwealth's engagement in the
activities in connexion with which the moneys
are to be spent. Whether the Commonwealth
can engage in any specific activities depends
upon the extent of the Commonwealth's
legislative, executive and judicial powers.

And then Your Honour refers to section 61 and,
as I understand the argument which is to be put
by the Commonwealth in this case, it is that the
implied nationhood power can be seen as a subset
of the executive powers contained in section 61
of the CONSTITUTION and may, perhaps, be derived
from the terms of that section. If that be the
case, I note Your Honour the Chief Justice's comment
at about point 8:
Although the ambit of the power is not otherwise
defined by Ch II -

and this relates specifically to section 61 - it is evident that in scope it is not unlimited
and that its content does not reach beyond
the area of responsibilities allocated to
the Commonwealth by the CONSTITUTION,
responsibilities which are ascertainable from
the distribution of powers, more particularly
the distribution of legislative powers,
effected by the CONSTITUTION itself and the
character and status of the Commonwealth as
a national government.

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Davis

MR BASTEN (continuing):

And then on the next page,

Your Honour noted - at point 3:
in ascertaining the potential scope of the
power there are several important considerations
which need to be kept steadily in mind. First,
the incidental power contained ins. 5l(xxxix.) taken in conjunction with other powers, notably
s. 61 itself, adds a further dimension to
what may be achieved by the Commonwealth in

the exercise of other specific powers - Your Honour refers to BURNS and SHARKEY -
Secondly, the Commonweatlh enjoys, apart from
its specific and enumerated powers, certain
implied powers which stem from its existence
and its character as a polity (AUSTRALIAN

COMMUNIST PARTY V THE COMMONWEALTH). So far
it has not been suggested that the implied
powers extend beyond the area of internal
security and protection of the State against

disaffection and subversion. But in my opinion
there is to be deduced from the existence
and character of the Commonwealth as a national
government and from the presence of ss. 5l(xxxix.)
and 61 a capacity to engage in enterprises
and activities peculiarly adapted to the government
of a nation and which cannot otherwise be
carried on for the benefit of the nation -

and Your Honour refers to some specific matters.

Now, in my submission, there is a question
as to whether or not the executive power of the
Commonwealth is properly considered as the basis
for this Act and, if it is, whether it is necessary
to rely upon the implied nationhood power because
if it is, then it is also necessary to rely, at
least in relation to sections 22 and 23, on a
coercive form of the implied nationhood power.

And while I do not mean to suggest that there is
anything in Your Honour's judgment which suggests
that that was in consideration in that case it
is noteworthy, in my submission, that one needs
to consider both sections 81, 61 and 51(xxxix)
in the context of deriving an implied nationhood power. And in that context there is a danger in
indulging in a bootstraps exercise if one says that the
purposes of the Commonwealth for the purposes of executive
power include the implied nationhood power and
yet find the basis of that power in a combination
of sections 61 and 51(xxxix) themselves. In my
submission, although the implied nationhood power
is of particular relevance with respect to those
two sections its existence may be considered

ClT22/l/AC	35	3/5/88
Davis

independently and the incidental power, in itself,
would not provide the lacuna, if there be such,
and it would not provide the lacuna in relation
to the interpretation adopted by the US Supreme Court.
Your Honours, I do not wish to take the Court

to any other passages in the AAP case although
there are, of course, other references to the implied
nationhood power and I do not shy away from the
fact that a number of members of this Court have
accepted that there may well be an implied
nationhood power to be derived from the terms of
the CONSTITUTION as a whole. However, may I say
in relation to the implication of a non-coercive
power that it would not be sufficient, in my submission,
merely to consider whether there is a lack of
competition, as I think Your Honour Justice Deane
noted in the DAM case, between the States and the
Commonwealth. It would be my submission that if
the powers of the Commonwealth are limited then
competition with the States should not, ultimately,
be the test. In accordance with covering clause 3
of the CONSTITUTION the unity of the Commonwealth
is a unity based on the peoples of Australia and
although, for some purposes, the peoples' will
is expressed through the State governments it should
not be assumed that their will is so expressed
for the purposes of such an implication.
Your Honours, I think those cover the submissions

I would seek to make in relation to the AUSTRALIAN

BICENTENNIAL AUTHORITY ACT itself. The second
matter which is raised in challenge in the amended
statement of claim is the power to appropriate
moneys to the Authority. The power to receive
is acknowledged in section 10 of the Act and the
fact of particular appropriations is acknowledged
both by reference in the statement of claim and
by there being no dispute, I think, from the Commonwealth

that moneys are so appropriated. The possibility

that the Act itself may be justified as being an
exercise of the appropriation power together with
the incidental power would, in my submission, entitle
the plaintiffs to challenge the validity of the
appropriation on the basis that the Act cannot
be supported as incidental to an invalid appropriation.

(Continued on page 37)

ClT22/2/AC 36 3/5/88
Davis

MR BASTEN (continuing):

On the other hand, I understand the

Commonwealth and the second defendant to submit
that the plaintiffs themse:b.res have no standing
in relation to the challenge of an appropriation
and it is for that reason that I have addressed,
in the outline of argument, questions as to the
authority of the plaintiff if that first submission
is not considered sufficient to justify the
challenge to the appropriation.
I note in paragraph 4 that there may indeed

be a question of justiciability which would arise
in relation to a challenge to the appropriation
and that submission,which may be contained in the
allegation that there is no cause of action displayed
by paragraph l(a) in the demurrer, would be justified
insofar as it were correct to say that the appropriation
power for the purposes of the Cormnonwealth in section 81
is to be taken as meaning for the purposes of the
Corrnnonwealth as defined by the Parliament. If that
broad view of the appropriation power were to be
accepted by the Court then we do not seek to submit
that there is any justiciable issue in this case

as to the validity of the appropriation. However,
that question obviously depends upon the ultimate
answer which is given in relation to the breadth
of section 81.
The standing of the plaintiffs in relation to the appropriati_on would only need to be considered,
in my submission, if it were not sought to justify
the Act as being in someway incidental to the
valid appropriation and, of course, it may be
necessary in that context to consider the incidental
power in relation to both sections.61 and 81. Although,
as some of Your Honours have noted in previous
cases, section 81 provides for the authority for an
appropriation, it may be that the actual appropriation
of the moneys is an executive act of the government and any

authority given, as Your Honour the Chief Justice
noted, pursuant to section 81 will not make

lawful anything which would otherwise be unlawful,
and in that case a combination of section 61 and
section 51 (xxxix) would mean in effect that the defendants were
seeking to rely upon the appropriation and executive
power and therefore it is necessary to consider the
validity of the appropriations.

MASON CJ:	Mr Basten, can you give me a reference	to the
decision of the Canadian Supreme Court	dealing

with locus to attack an appropriation? I think
the name is THORSON,. is not it?

MR BASTEN:

Yes, Your Honour. There are three authorities.

THORSON is the first of those authorities and
that, I think is THORSON V THE ATTORNEY-GENERAL
OF CANADA (NO 2), (1974) 43 DLR (3d) 1. And,

CIT23/l/JM	37	3/5/88
Davis

Your Honour, there is a more recent authority which
discusses and applies THORSON, again in the
Supreme Court of Canada,in the MINISTER OF JUSTICE

OF CANADA V BOROWSKI, (1981) 113 DLR (3d) 588.
Perhaps the principle which has been accepted by
the Canadian Supreme Court is most succinctly stated

of Chief Justice Laskin at page 592. in that latter case, in particular in the judgment

The decision in THORSON was a decision of the court delivered by the Chief Justice. He, in
BOROWSKI's case,dissented from what he say as
an extension of that approach in relation to a
challenge to an exculpation provision in a criminal
statute dealing with abortion and it is cl~ar
from His Honour's judgment that he would not have
applied the THORSON principle so far. But the
principle which the court accepted in THORSON,
and which the whole of the court accepted in
BOROWSKI, is stated by His Honour at page 592.
His Honour notes, in the middle of the page:
There are exceptions to the general
rule -

relating to the standing of parties -
One of the earliest recognized has been a municipal taxpayer action to restrain
an allegedly illegal municipal expenditure.

And His Honour refers to MacILREITH.

An explanation of this exception is that it
involved a public right to see that
municipal expenditures were lawfully made,
being expenditures which were limited by
considerations that do not apply to a

Province or to Canada. No municipal
taxpayer could raise a lis in the ordinary

sense or court a penalty or other sanction
in respect of an allegedly illegal municipal
expenditure and, hence, unless a taxpayer
action was permitted the illegality would
go unchallenged and unchallengeable.
(Continued on page 39)

Davis

CIT23/2/JM

3/5/88

MR BASTEN (continuing): His Honour notes on the next page

that a similar principle has been applied to questions
of invalidity in relation to Conunonwealth statutes.

BRENNAN J:

But the ground on which His Honour seems to proceed is

in the paragraph following the one which you first
quoted, is it not? That the challenge to the
expenditure in the provincial and federal field would
depend on the outcome of the challenge to the
legislation.

MR BASTEN:

Yes, well, that may well be so which would suggest

that the question of standing would not be dealt with
as a preliminary matter but would depend upon the
outcome of the case and that, in our submission, is
the correct approach which would be applied in this
case unless it could be said that, as a matter of
principle, no such rule were appropriately to be
adopted by this Court. May I say that that is also
an approach which appears to flow from the decision
of the House of Lords in the FLEET STREET CASUAlScase
to which I will come in a moment. Well, perhaps, I
do not need to read the remainder of the passage in
His Honour's judgment but it goes over to page 593. So, the principle,as I understand i~ accepted
in the Canadian Supreme Court is that it is permissible
for a taxpayer to institute a challenge, at least, in
relation to such a matter as the invalidity of
expenditure which would not otherwise be challenged
because it would simply not be available to anybody
else to provide an interest which distinguished them
from the population at large and small and
unconsequential as the interest of the taxpayer may
be, it was accepted that if the invalidity were to be
open to judicial review, such a rule was required.

A similar approach has been adopted, as I

indicated, in relation to such matters in the

House of Lords. May I take the Court briefly to

the INLAND REVENUE COMMISSIONERS AND THE NATIONAL
FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES,
(1982) AC 617. Again, as Your Honour Justice Brennan
noted, it appears to be accepted by a majority of standing would not in such a case be dealt with as
a preliminary point. There is some difficulty, in
my submission, in obtaining a simple statement of
the principle for which this case stands but the
indications which are contained in the judgments
of the majority of Their Lordships is, in my
submission, reasonably clear. The case involved
a challenge to a tax office practice concerning persons who were not members of the federation, persons who were casual journalists employed in Fleet Street, and who had obtained, by use of
fictious names, evasion of the Tax Acts over a
number of years and the agreement which was

ClT24/l/SH	39	3/5/88
Davis

entered into by the tax cormnissioner was that if
that practice were changed no retrospective action
would be taken in relation to past practices; that
a challenge was rejected as having no merit so that
in the substance of the decision it is clear that
Their Lordships would not have granted standing but
because, apparently, the substance of the case did
not suggest that there was an appropriate point to
be raised. Lord Diplock, who perhaps take the most
explicit position in relation to the appropriateness
of standing, made certain cormnents at page 644 at
letter E which state in general terms the principle.
His Lordship noted:
It would, in my view, be a grave lacuna

in our svstem of public law if a pressure group
like the federation, or even a single public
spirited taxpayer, were prevented by outdated
technical rules of locus standi from bringing
the matter to the attention of the court to
vindicate the rule of law and get the unlawful

conduct stopped. The .Attorney-General, although
he occasionally applies for prerogative orders
against public authorities that dorot form part
of central government, in practice never does so
against government departments. It is not, in
my view, a sufficient answer to say that judicial
review of the actions of officers or departments
of central government is unnecessary because they
are accountable to Parliament for the way in which

they carry out their functions. They are
accountable to Parliament for what they do so
far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness
of what they do, and of that the court is the only
judge.
(Continued on page 41)

ClT24/2/SH	40	3/5/88
David

MR BASTEN (continuing):

In my submission, in relation to a

question of constitutional validity where the Parliament
has acted, that applies with even more force that in
the case then under consideration, which was really
a matter of judicial review. Lord Scarman,at page 654,
letters C to E, suggests that standing should be
available where there is a "genuine grievance reasonably

asserted." And, again, that goes to the question
of the merit of the matter under consideration.
Lord Wilberforce notes the general rule at page 633
that in general a taxpayer cannot ask a court to
review the treatment of another taxpayer but is
prepared to concede that in a matter of sufficient
gravity, or perhaps in one involving a lack of
fairness - page 633B - it may be appropriate to
grant the taxpayer standing.
There are also references to a similar principle

by Lord Fraser at page 647B and, perhaps, a rather
guarded acceptance of the same principle by

Lord Roskill at page 662H. But while there is
a different - - -

:MASON CJ:

Are these not expressions of opinion in conflict

with statements that have been made in this Court?

MR BASTEN:

They are in conflict with dicta in this Court,

Your Honour, I would submit,. yes. There is no
case in this Court in which the question of the
standing of a person to challenge to validity of
expenditure has been specifically ruled on.

:MASON CJ:

But there is certainly cases which hold that

a taxpayer does not have standing to challenge
an appropriation?

MR BASTEN~·	Yes, there are. Well, I am not sure that - - -
:MASON CJ:	What about LOGAN DOWNS, is that not such a case?
MR BASTEN:	In my submission, no, Your Honour, because it

was not specifically the appropriation that was in
question in that case. - In
112 CLR 177 at 187, the Court noted that the attack
was upon the provisions of the WOOL INDUSTRY ACT
which provided for the board to market wool.

:MASON CJ:	Well, it appropriated, did it not?
MR BASTEN:	It appropriated. There was a tax provided by

the Commonwealth which was appropriated to set up
the wool industry board - if that is the correct
name.

:MASON CJ:

Yes. Well, the WOOL TAX ACT and the WOOL TAX

ASSESSMENT ACT imposed the tax. The WOOL INDUSTRY ACT
then constituted the appropriation and authorized the
expenditure.

ClT25/l/MB	41	3/5/88
Davis

MR BASTEN:	Yes.
MASON CJ:	And did not the Court hold that the plaintiff

taxpayer did not have locus standi?

MR BASTEN:

In relation to the wool industry corporation?

MASON CJ:

Yes.

MR BASTEN:

That is so, Your Honour.

The equivalent in this

case, in our submission, would be to rely upon the
status as a taxpayer in a challenge to the

BICENTENNIAL AUTHORITY ACT. We do not rely on
that status in relation to that Act, we only rely
on our standing as a taxpayer in relation to the

isolated question of the validity of the appropriation,

if it be an isolated question. I can see, I think,
that in one paragraph of the demurrer it is suggested
that the taxpayer position would not be sufficient
to give a standing with respect to a challenge to the Act. We would concede that. We only seek to
rely upon that standing on the principle that
in differentiation from the situation with the Act an appropriation is never likely to be the subject
of any sufficient interest in;the traditional sense

in any person. So that unless, as Chief Justice Laskin
says, an exception is made to the general rule, then
the invalidity or validity of such a matter could never
be challenged, and it is for that limited purpose
that we seek to rely on our standing as a taxpayer.
So LOGAN DOWNS, in my submission, although the

cormnents that Your Honour the Chief Justice noted
were, indeed, made there, is not direct authority
against me on that point.

MASON CJ:

Now, LOGAN DOWNS was, itself, the successor of other decisions in this Court.

Was there not another case

dealing with wool tax legislation or wool tax schemes;
MOOR.E's case?

MR BASTEN:

There are two other cases to which I was going to take the Court. One is FISHWICK V CLELAND, 106 CLR 186.

MASON CJ:

That is the PAPUA NEW GUINEA TAX case?

MR BASTEN:

That is so, yes.

The other one was PYE V RENSHAW,

(1951) 84 CLR. But that did not relate to anything

to do with the wool taxes. I am not familiar with
another wool tax case, Your Honour.
(Continued on page 43)

ClT25/2/MB	42	3/5/88
Davis

MASON CJ:	Perhaps my memory is playing me false, Mr Basten.
MR BASTEN:	There is a connnent at PYE V RENSHAW at page 83

which specifically relates to the question of
standing to challenge an appropriation under
section 81 and this Court doubted that such standing

existed. At page 83 point 5 in PYE V RENSHAW
Their Honours said:
But even if it be assumed (an assumption
of doubtful validity) that the plaintiff
has such an interest as would enable him
to maintain an action founded on this
proposition, the proposition itself cannot
be supported.

Your Honour, if there were such a decision it
would be necessary for me to seek leave to re-open

it. In my submission, there is no submission

directly against me. I concede that there are
statements in the earlier cases which, in principle,
would not support me and, indeed, might indicate that

the Court would not have granted such standing. The
matter not having been raised, and the decisions of
the House of Lords and the Canadian Supreme Court being
more recent, it is a matter which, in my submission,
this Court would consider as open to the plaintiffs.

DEANE J:

Do you draw any distinction between a citizen and

a taxpayer? I mean, is a taxpayer someone who pays
as distinct from evades tax, or - - -

MR BASTEN:

It may be that there is some justification there,

Your Honour. In my submission, there is very little
reason to consider that the taxpayer's interest is
different from that of a citizen because if one accepts
that the interest of the taxpayer in the expenditure of revenue
is very slight, as it must be in any case, unless one
is prepared to assume that people who pay a great
deal of taxes have an interest which people who
pay less have not - - -

DEANE J:

If you have a country like this which seems to be spending money which it does not have,

I would have

thought those on social security would have a much
more vital interest in preventing illegal expenditure
than those who are liable to pay taxes.

MR BASTEN:

I suppose the question comes down to this,

Your Honour, whether the general rule is based in
policy upon a question of someone having any
interest, or of whether someone has an interest
different to the public at large. It may be thought
that people, for particular reasons, have an interest,
although, in my submission, the interest is so slight
in any of those cases that it might not be worth

considering it as such. In policy terms it seems
to me appropriate that one would accept that the

ClT26/l/HS	43	3/5/88
Davis

question is whether the validity can be challenged,
and if it is to be challenged, then a citizen, in
my submission, would have as good an interest as a
taxpayer.

DEANE J:

Just to understand it, does taxpayer mean income

tax, or does everyone who has a glass of beer pay
tax to the Commonwealth?

MR BASTEN:	Pay taxes - indeed, Your Honour, it may be that anybody who contributes to the consolidated revenue
in any way would have a similar interest in that sense.
DEANE J:	There would not be any adult who was not a taxpayer;

so why not just call it a citizen?

MR BASTEN:

Yes.

In my submission, that - I think the use

of the term taxpayer is probably historically
related to the municipal ratepayer principle and, in
my submission, there would be no reason to continue
that - if it be a restriction - restriction on the
concept.
(Continued on page 45)

ClT26/2/HS	44	3/5/88
Davis

MR BASTEN (continuing):

I think that Chief Justice Laskin

may refer, in fact, to 11 a taxpayer or citizen"
in his judgment.

MASON CJ: In one of these cases, at least, the word

"taxpayer" was used to designate a class of people
who were liable for the particular tax imposed
which then constituted the fund that was appropriated
for the particular legislative purposes.

MR BASTEN:	Yes, although that as a submission was not accepted as being relevant on the basis that the tax went
into consolidated revenue.
MASON CJ: True, but none the less I think the use of the	words 11 taxpayer 11 came into existence because of
that particular context.
MR BASTEN:	That may well be so, Your Honour, in which case

it is not a use which I would seek to support.

BRENNAN J:

Why would you limit the right of challenge to

citizens?

MR BASTEN:

As opposed to permanent residents, Your Honour?

BRENNAN J:

Once we get to permanent residents we might even push a little further.

MR BASTEN:

Yes, I can understand that.

DAWSON J:

What is the basis then on which leave is necessary

to bring the action? What is the basis for granting
leave if it is discretionary? What is the basis

of exercising

a discretion?

MR BASTEN: Is that the discretion referred to in the

House of Lords' decision?

DAWSON J:	No, I had the Canadian cases in mind.
MR BASTEN:

I see, yes. The Canadian cases are -

DAWSON J: What I am asking you is how do you put it? What

do you say is the basis for allowing persons to
bring actions in which they have only an indirect
interest?

MR BASTEN:

In my submission, the interest of the plaintiff

is not the critical question at that stage. It
is the interest of the plaintiff in relation to
a particular issue. It may be that the separate
tests of standing and justiciability become collapsed
into one if one takes it that far.

DAWSON J:

Then it becomes a question of whether the Court

considers the matter ought to be litigated, is
that right?

ClT27/l/ND	45	3/5/88
Davis

MR BASTEN: It may depend on that, Your Honour, yes, that

if there is a serious - - -

DAWSON J:	What else would it depend on?
MR BASTEN:	The question would only arise in that form in

a case where the person seeking to litigate did
not have a traditional interest, a sufficient
interest - - -

DAWSON J:

A particular interest?

MR BASTEN: - - - within ONUS or ACF, yes. If they had that

interest, then the question would not come before

the Court. It may be that the Court would take
account of the possibility of others having a
sufficient interest and would not permit a taxpayer
or citizen to litigate a matter when there are
others who might be directly affected who would
have an interest in bringing the matter to the
Court. That is why I was restricting it to the
area of appropriation of funds in which it cannot
be - it certainly cannot be said in the present
case, and is unlikely to be said in most cases,
that there is any person with a particular interest.
If one looks at the AUSTRALIAN ASSISTANCE PLAN,
for example, it could not have been said that there
was anybody with a particular interest in stopping
the expenditure because their personal interests
were at stake.
So when I say it becomes a question of the

discretion of the Court, it is a discretion which
is exercised according to whether or not there
are other people who may have standing of a
traditional nature and it is exercised on the basis
of whether there is a real grievance which the Court should permit to be litigated. In other words, it should not apply the traditional rules
where to do so would render unlawful conduct beyond

judicial review.

DAWSON J:	And how do you decide what is a real grievance?
MR BASTEN:	In my submission, that question is partly

dependent upon whether one deals with it as a
preliminary issue or not and the argument which
was accepted by this Court - or by the Chief Justice,
I think, or Justice Gibbs, in ROBINSON, was that
there may well be cases where it is not appropriate
to deal with standing as a preliminary issue.
(Continued on page 47)

ClT27/2/ND	46	3/5/88
Davis

MR BASTEN (continuing):

A similar point was made by the

House of Lords in the FLEET STREET CASUALS case
and indeed it appears that a majority of their
Lordships would have been willing to grant
standing had they thought that there was an
appropriate issue to be litigated when they came
to look at the merits of the case. And it is in
that sense that I say that it may be that the
concepts of standing and justiciability are being
collapsed into each other when one looks at it

in that sense. I do not think I can give
Your Honour any further assistance. If there is
a real question of invalidity which will not
otherwise be challanged, then in my submission
the Court should grant standing to a person who
seeks to challenge it.

MASON CJ:	Have we in this Court ever embraced this notion of granting standing as a matter of exercising
a discretion?

MR BASTEN:

No, I think not, Your Honour.

I think - - -

MASON CJ:

The Court has always viewed it, has it not, as

a question as to whether the plaintiff has standing -
has a sufficient locus?

MR BASTEN:

And my submissions would not suggest th~t

there is anything inappropriate in that test where
there is somebody who would have standing in a

traditional sens.e of the term.

They would be

entitled to bring an action and other people, unless
for some reason the Court were to exercise a

discretion, would not but - - -

MASON CJ: But you say over and beyond the traditional cases where a

person has standing in the traditional sense, the
Court is armed with some discretionary power?

MR BASTEN:

Yes, the Canadian Supreme Court has put it in

tf?.rms of a discretionary power, Your Honour. The
House of Lords play down the question of

discretionary power and say that there is a legal
test to be applied which should be applied as a . matter of principle and does not necessarily involve

the exercise of a discretion. How that test is
to be applied, of course, may involve a determination
by the Court of a fairly indeterminate standard,
but in my submission, if the Court were to apply
that standard it could not be said that it were
necessarily exercising in a discretionary refusal
to consider a case not subject to judicial

pr inc ip le s .

DAWSON J: There would always be someone who was available

to contest constitutional validity, would not there?
The Attorney-General for the States, the MP cas~
may not have decided much but it decided at least that?

ClT28/l/SR

47 3/5/88

Davis

MR BASTEN:

Yes, that may be so Your Honour, I would have - - -

DAWSON J: Well then where does your argument go then?

MR BASTEN:

There is always someone in the sense that the

Attorney may also act on relation of a citizen.
That is a proposition which is true in Canada
and in England as well as here.

DAWSON J: But I am

talking about the Attorney-General

as the law officer of the State has a status to
challenge constitutional validity and in particular
the constitutional validity and appropriation?

MR BASTEN:

Your Honour, I am not sure whether that was

established by the AAP case, it was certainly
discussed and I think -

MASON CJ: Well, a number of the Justices said that was so.

In a sense it was an integral part of the Federal system that a State could challenge it?

MR BASTEN:

I was merely trying to recollect whether that

was a majority - it may well be, Your Honour, I am - - -

MASON CJ: Yes, I am not sure that it was a majority, that

is why I said a number of the Justices; like you
I was not absolutely certain.

MR BASTEN:

Yes, but in principle, in my submission, one

comes back to the question of whether the
validity should be depencent upon the interest of
a State Attorney in challenging a matter or whether
it could be open to the people and I come back to
the question of the relevance of clause 3 of the

covering clauses. I also come back to the
proposition which was accepted in a number of American
cases that the interest of a State Attorney in
challenging the constitutionality of Commonwealth
legislation on behalf of the people of a State
was indeed limited because there was no reason

why he as the representative of the public interest in that State should have any greater interest than
the total of the people in the State and the people
were citizens of the United States as a whole rather
than of the State.
(Continued on page 49)

ClT28/2/SR	48	3/5/88
Davis

MR BASTEN (continuing):

So, whether or not one accepts that

as being a reason for denying a State attorney
standing, it does, at least, indicate a policy
reason for being prepared to grant citizens standing
beyond simply the State Attorney-General. But
in so far as Your Honours says there is always
someone, namely, a State Attorney-General, then
I would not submit that that is a limitation on

the principle which I was espousing. I was thinking
of persons other than an attorney who represents
the public interest on behalf of either a State
or the Commonwealth.

BRENNAN J:

Mr Basten, can I draw your attention to an observation

by Lord Wilberforce in - I think it is known as
the !'Mickey Mouse" case - that case that you have
referred to about self-employed people which I
had occasion to refer to in ONUS V ALCOA, 149 CLR 75.
His Lordship said, with reference to the test:
of sufficient interest in the matter to which
the application relates ..... it does not remove
the whole - and vitally important - question
of locus standi into the realm of pure

discretion. The matter is one for decision,
a mixed decision of fact and law, which the
court must decide on legal principles.

Now, that is a proposition which seems to be at
odds with the earlier submission you made, is that
correct?

MR BASTEN:

No, Your Honour.

His Lordship probably expressed

it much better than I did. I was seeking to adopt

that. I think I said that there are comments in
the Canadian Supreme Court that the matter is one
of discretion. In my submission, and I think I was trying to say this to the Chief Justice and
may have been unsuccessful, the approach adopted
by the House of Lords is a correct analysis of
the situation, it is not an open discretion to

consider whether or not to ground standing in a
particular case. It is subject to those legal
principles which I have - - -

BRENNAN J: Well then, if there is a legal principle to be

applied, it is the legal principle laid down in
ONUS V ALCOA, is it not?

MR BASTEN:

I am not sure that that is so, Your Honour.

The traditional test of what is a sufficient interest
as laid down in ONUS V ALCOA and ACF is not the
sufficient interest which is being applied by the
House of Lords in this particular case, in my submission.

ClT29/l/AC	49	3/5/88
Davis
BRENNAN J:	I am not suggesting it is.	What I do suggest

is tha~ for the purposes of this Court,

ONUS V ALCOA defines the legal principle. Now,

the question is: do you accept that, or not?
And, if not, do you seek to reopen ONUS V ALCOA?

MR BASTEN:

I accept that in a case such as ONUS V ALCOA,

Your Honour. I am submitting that in relation
to a challenge to the validity of an appropriation
which is a matter which has.not been specifically
ruled upon and, indeed, I think it is true to say,
that in ACF or ONUS there are comments that a
constitutional question is not at issue and, therefore,
the comments that this Court made in those cases
would not necessarily apply in a question of
constitutional validity and, perhaps, I should

find those passages, Your Honour. But it is my
submission that this is a test which would not
necessarily be applied in, other than a challenge
to an appropriation or, possibly, a challenge to
constitutional validity wher~ Attorneys-General
asid~ there would be no one else who would have
a traditional sufficient interest in the ONUS sense.

DAWSON J: Well, you may have said so, Mr Basten, but I have

not grasped what you say the test is in those cases.

MR BASTEN:	In ONUS and - - -
DAWSON J:	No, in constitutional cases, cases of appropriation.
MR BASTEN:	The test which I seek to draw in relation to

appropriations is the test which is stated in
BOROWSKI and the Canadian cases, namely, that any
citizen is able as a matter of standing to challenge
the legality of the appropriation.

DAWSON J: There is no test then.

MR BASTEN:

There is no limit on the standing, no, that 1s

so.

DAWSON J:	And yet the Canadian cases say there is a discretion.
MR BASTEN:	The Canadian cases say there is discretion,

Your Honour. It is difficult to know precisely
what the discretion is but it seems, in my submission
to be a discretion similar to that accepted by '
the House of Lords - I a sorry, I should say a
test similar to that accepted by the House of Lords
which may not amount to a simple exercise - - -

DAWSON J:

You say it is not a matter of discretion; there

is not test; there is not limit and we can forget
about standing where constitutional validity is
concerned - the validity of appropriations.

ClT29/2/AC	50	3/5/88
Davis

MR BASTEN:

And where there is a genuine issue to be

determined by the court. That seems to be
the House of Lords approach in the Mickey Mouse
case, or FLEET STREET CASUALS, that if there is
not a serious issue to be determined then it
would be appropriate to dismiss it on the basis
of lack of standing. That may, or may not, have
significance, depending upon what time that is
determined at. It may be possible to say at the
outset that there is no significant issue raised,
in which case the court might be able to dismiss
it on the standing of the plaintiff if - - -

DAWSON J:	I find all that very difficult, I must say, for my
own part -
MR BASTEN:	Yes.
DAWSON J:	- - -because constitutional validity is always a serious issue.
MR BASTEN:	Yes, well, I do not submit that- - -
DAWSON J: So, it comes back to the same thing:	there is

really no test.

BRENNAN J: Well then you are -

MR BASTEN: There is no restriction, Your Honour, yes.

But, I am sorry, the other limb of my submission
was that that would apply where there are not
cearly people who have standing in the traditional
sense. That is why I would not seek to apply it
to the constitutional validity of the ABA ACT
because it could be said that there were people who
would have standing in the traditional sense to
challenge that. And indeed, the plaintiffs -

BRENNAN J:

As you say there is no limit of the relevant

kind, what would be the difference between an
action instituted by a person who has no special

interest and an advisory opinion?

MR BASTEN: Well, the question may be one which has - there

are comments by this Court in QUEENSLAND V

THE COMMONWEALTH -the recent decision, I think
it is in 61 ALJR - which suggest that until
the matter which is the subject of the determination
has come before the Court in a form which indicates
specific factual circumstances requiring determination
then there will be nothing to distinguish the

decision from an advisory opinion. Your Honour,
that does not necessarily mean that some particular
person must have had a specific right invaded in
order for the Court to have the matter brought
before it in that form.

CIT30/l/JM	51	3/5/88
Davis

If that were so then it may well be that my submission would run up against the hurdle of a
constitutional requirement in the law of standing
which, in my submission, does not exist. That
matter was discussed in the United States Supreme
Court in FLAST V COHEN, which is also referred to,
I think, in Your Honours' decision in ACF, and there
is a discussion as to whether or not there is a
core component of the law of standing which is
based upon the cases and controversies requirement
of the UNITED STATES CONSTITUTION. And the United
States Supreme Court held that there was such a
core element, though what its precise parameters
are is hard to understand from that decision.
The cases and controversies test is not the

one which is referred to in chapter three, and,

as the Chief -Justice has noted, the restrictions
which are implicit in the United States cases based
on that may well not apply here. And that is a
matter in the same judgment to which I referred

before, which I cannot remember the reference
to, Your Honour, but perhaps I can find that.
But, in my submission, there is no necessary
reason why the question of standing should be
inexorably linked to the question of whether or
not there is a clear case before the Court of a
factual nature which would avoid the Court giving
an advisory opinion. But if that were not so;

if there were to be limits placed upon the
rules of standing to avoid that, then, so be it,
there might have to be a restriction. In my
submission that would not necessarily be a
restriction which prevented a citizen from challenging
an otherwise unchallengeable act.
(Continued on page 52)

CIT30/2/JM	52	3/5/88
Davis

MR BASTEN (continuing):

Your Honours, there were two other

authorities to which I was going to refer the Court.
Perhaps I can do so briefly - SMEDLEY's case, which
is a decision of the English Court of Appeal,
(1985) 1 QB 657, is perhaps not a deeply reasoned
authority on the rules relating to standing, but
more a reflection or acceptance of the right of a taxpayer to challenge an appropriation when there
was no other interest which he had which would justify

it. There are cormnents by the Master of the Rolls,
Sir John Donaldson at page 667, at letter F, in which he refers to the submission that Mr Smedley had no sufficient interest within the meaning of
the English judicial review order and said:
Woolf J did not find it necessary to decide

this point and neither do I, although I
agree with the judge that I should be
extremely surprised to find myself obliged
to uphold that submission.

That was in a case in which there was no more than
the appropriation by executive action at issue, and
there are similar comments, again not perhaps
persuasively reasoned, in the judgments of
Lord Justice Slade at page 669, and, I think, the
third judge, Lord Justice Lloyd, simply agreed.
But there is reference at the top of page 670 in
Lord Justice Slade's judgment to the test of whether
or not a serious question was raised in line 3,
and he says at letter B:
I do not feel much doubt that Mr Smedley,
if only in his capacity as a taxpayer,
has sufficient locus standi to raise this
question by way of an application for

judicial review; on the present state of
the authorities, I cannot think that any
such right of challenge belongs to the
Attorney-General alone.

His Honour had referred below to the FLEET STREET

CASUALS case. Your Honours, the other decision which
is in point is the decision of the US Supreme Court
to which this Court has had reference before in
FLAST V COHEN, 392 US 83, and in particular there is
a discussion, Your Honours, at page 94 of that
decision where the court considers the constitutional
limitations which may impose limits on the question
of standing, starting at about point 8 on page 94
where they note that judicial power being
constitutionally restricted to cases and controversies,
and then on the next page they note that the purpose
of those limitations is to raise questions presented
in an adversary context, and then there is discussion
of the concept of justiciability, limits on
political questions, advisory opinions and moot issues.

ClT31/l/HS	53	3/5/88
Davis

Nevertheless, there is ultimately the conclusion
at page 101, at about point 6 on the page:
There remains, however, the problem of determining the circumstances under which
a federal taxpayer will be deemed to have
the personal stake and interest that impart
the necessary concrete adverseness to such
litigation so that standing en be conferred
on the taxpayer qua taxpayer consistent
with the constitutional limitations of
Article III.

So the court accepts that as a possibility, and then
at page 102, at the top of the page the court notes:
However, our decisions established that,
in ruling on standing, it is both
appropriate and necessary to look at the
substantive issues for another purpose,
namely to determine whether there is a
logical nexus between the status asserted
and the claim sought to be adjudicated.
(Continued on page 55)

ClT31/2/HS	54	3/5/88
Davis

MR BASTEN (continuing):

The twofold test which is established

at the bottom of the page is that:
The nexus demanded of federal taxpayers

has two aspects to it. First, the taxpayer
must establish a logical link between that
status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the
taxing and spending clause of Art. I, § 8, of
the Constitution.

And after reference to DOREMUS:
Secondly, the taxpayer must establish a nexus
between that status and the precise nature of
the constitutional infringement alleged.
Under this requirement, the taxpayer must show that the challenged enactment exceeds
specific constitutional limitations.

The difficulty which one faces in applying that twofold
test depends upon the lack of limitations contained in
Article 1(8) which provide a general power in the US
Congress to appropriate for the general welfare of the
nation and that in itself has been held not to be

a restriction on the spending power. So that, in the
US cases,it is necessary to look further afield to
find other specific limits on the spending power which must be contained in prohibitions in the Constitution.
Now, in my submission, if section 81 provides in its definition of the purposes of the Connnonwealth,
a more restrictive approach to the spending power,
then it may not, in Australian context, be necessary
to go beyond a consideration of section 81 itself in
order to determine whether there is a justiciable issue
in relation to the validity of the spending or the
expenditure in the particular case.

The US Supreme Court has returned to this

consideration in two·:~more recent cases. One of them
is referred to by His Honour Chief Justice Gibbs in the
interlocutory decision before this Court which is
reported in DAVIS V THE COMMONWEALTH, (1986) 61 ALJR 33
and I should have noted at the outset that, at page 36
of that report, there is a discussion by His Honour as
to the openness of this question. His Honour refused
on a sunnnary judgment application to reject the statement
of claim on the basis that the plaintiffs had no standing.

ClT32/l/SH	55	3/5/88
Davis

MR BASTEN (continuing): His Honour referred, at the bottom

of page 36, column B, to BOROWSKI's case, noted
the Canadian Supreme Court's approach and then
referred to a tendency he saw in the US Supreme
Court in the VALLEY FORGE case to a restriction
on the approach adopted in FLAST V COHEN.

MASON CJ: It is a pity, really, that you did not refer to

this judgment earlier because it sets out how the
law has developed to this point and the openness
of the question.

MR BASTEN:

Yes, I do apologize for that, Your Honour.

In particular, Your Honour, I should also have referred to the matter being left open, not only
by His Honour the Chief Justice in BLACK's case
at pages 588 to 590, 146 CLR, but also the comments
of Mr Justice Stephen in that case at pages 387
to 388 and 391 where His Honour also left open

the question of the standing of a taxpayer and
noted without comment Chief Justice Latham's comment
in DALE's case.
There is also - I should have made a reference,

Your Honou½ to Justice Murphy's comment in the
SCHOOLS AID case at pages 633 to 634 where
His Honour indicates he would have accepted the
standing of a taxpayer in that case to challenge

the necessary appropriations. Your Honour, in:
the AAP case, at page 402, at point 3, indicated

a view that a taxpayer or citizen would have a
less direct interest than that of the State but
did not take the matter any further.
(Continued on page 57)

ClT33/1/ND	56	3/5/88
Davis

MR BASTEN (continuing):

Your Honour, I do not seek to

take the Court to the United State's Supreme
Court decision in VALLEY FORGE. It is sufficient,
I think, to refer to the passage which appears in volume 454 of the United State's reports.
The decision commences at page 464 and there
is discussion at pages 478 to 480 in which the
court makes clear the restricted nature of its
ruling in FLAST but does not dissent from the

ultimate test applied. VALLEY FORGE itself was
not a case directed to the spending power per se
and hence it was not necessary for the court to
specifically rule upon any aspect of the FLAST
approach.
There is also a reference to FLAST and a

discussion of what is seen to be the constitutional
core component in the United States in ALLEN V

WRIGHT, 468 US 737. The discussion occurs at
pages 750 to 753 and again their is reference to
both VALLEY FORGE and the other earlier cases,
I do not take Your Honours to that discussion
particularly. It is the most recent authority
which I have been able to find from that court.
Your Honours, if I may turn then to the substantive
issue which needs to be determined in relation to
the validity of the appropriation and it is an
issue which, in my submission, is intimately
involved in the question of whether or not the
plaintiffs have standing to challenge that case
on its face. It is directly raised by the question
of the breadth of the clause "the purposes of

the Commonwealth" in section 81. As I indicated
before, if the purposes are as defined by
Parliament, then for though it may be on one view
of the United State's Supreme Court's approach
in FLAST theoretically possible to challenge an
appropriation as arbitrary or as being not indeed
for Commonwealth purposes but for more limited
purposes, in my submission, it would be difficult
to envisage a case unless the Commonwealth had
acted, perhaps, colourably.

If not, in my submission, it is still necessary

to ask what are included in the purposes of the
Commonwealth so that national purposes if they be
inappropriate not be reimported by the back-door
in breach of the restriction to enumerated powers.
The narrow view of the section 81 power has certain
support in the judgments in DALE's case 71, CLR
and perhaps-I do not ~eed to take

Your Honours to the specific judgments. They are
the judgments of Mr Justice Starke at page 266,
Mr Justice Dixon with whom Mr Justice Rich agreed
at page 271 to 272, and Mr Justice Williams at

page 282. The judgments were discussed in the AAP case

ClT34/l/SR	57	3/5/88
Davis

as were the arguments in favour of and against
the broader approach taken by the Chief Justice
at page 256 and Mr Justice McTiernan at page 274.
(Continued on page 59)

ClT34/2/SR	58	3/5/88
Davis

MR BASTEN (continuing):

The discussion in the AAP case is, especially

in the judgment of Your Honour the Chief Justice,

a discussion as to the argument which are in
favour of, and against, the wide as opposed to the
narrow view. Perhaps I can refer to those arguments
as they appear at page 394, 134 CLR. The argument
had been put by Chief Justice Latham in DALES case
at page 252 that to read for the purposes of the
Cormnonwealth, narrowly, would be to render those words redundant in the section. A comparison was made with the slightly different words relating to
at point 3 on that page with the difficulty of scrutinizing the purposes which might be contained
the legislative powers of the Commonwealth which
appear in section 51(xxxi). At page 394 of the

within an appropriation. Your Honour noted:
It is not lightly to be supposed that the
framers of the CONSTITUTION intended to
circumscribe the process of parliamentary
appropriation by the constraints of constitutional
power and thereby to expose the items in an
APPROPRIATION ACT to judicial scrutiny and
declarations of invalidity. Consequences
more detrimental and prejudicial to the process
of Parliament would be difficult to conceive.

And then Your Honour noted that expenditure of moneys
might be challenged even after they had been expended.
In the middle of page:
for an appropriation, if it be unlawful and
subject to a declaration of invalidity, does
not cease to have that character because
acts have taken place onthe faith of it.

Your Honour notes the short description of particular
items which occur in the particular APPROPRIATION ACT.

(Continued on page 60)

ClT35/l/MB	59	3/5/88
Davis

MR BASTEN (continuing):

Now, Your Honours, in this

particular case, the appropriation is an
appropriation for the purposes of the Authority
which purposes are defined in the memorandum and
articles of association of the Authority and by
virtue of the specific statement which is required
from the Board to be approved by the Minister. So
there is perhaps less difficulty although the
difficulty is not to be answered by looking at the
APPROPRIATION ACT itself. Nevertheless, that was a
difficulty which did not stop the Court in the AAP
case from considering the wider material upon which
the appropriation had been approved by the Parliament.
It may, however, be true to say that that approach

would result in a transfer on the attack from the
appropriation power to the executive power in
section 61 and Justice Jacobs, in that case, perhaps
suggests that that is the appropriate place for the

attack in any event. In other words, it would always
be open to the plaintiffs to attack the executive
action of the Cormnonwealth Govern~ent as being beyond
power and that power, as Your Honour the Chief Justice
noted at the bottom of page 396,is, in any event, a
limited power.
It is also true, in my submission, to say that the difficulty of challenge may ultimately mean that
in many cases the decision will depend upon the
presumption in favour of validity of the action of
the Cormnonwealth Government upon which His Honour
Mr Justice Gibbs placed some weight in that case.

At the bottom of the page, Your Honour

the Chief Justice then noted that such an approach
would invalidate many useful purposes which had been
served by the exercise of the appropriation power
over the years and, in my submission, that may be
the case and, for the purposes of the present case,
we would not resile from saying that there may be

a danger that such an interpretation would have that
effect.
(Continued on page 61)

ClT36/l/SH	60	3/5/88
Davis

MR BASTEN (continuing); Nevertheless, in my submission,

it also assumes that the executive action which
accompanied the appropriation would also not be
open to challenge and it may be that Your Honour
intended that that would be the case otherwise,
again, the transfer of the attack might be from
the appropriation to the executive action.
But the question ultimately, in my submission,

is whether or not the terms of the CONSTITUTION
bear an approach which means that the spending
power of the Commonwealth is broader than that of
its other legislative and executive powers as
spelt out in the CONSTITUTION, whether or not that
power includes some implied nationhood power,
which~ on our submission,it would not but which

on another approach it might. And it is our
submission that the intention of the use of the term "the purposes of the Commonwealth" in that
section was to provide a limit on the effect of
the spending power. It was not an approach which
adopted the'keneral welfare of the nationn phraseology
accepted in the UNITED STATES CONSTITUTION and
although it does not restrict in terms, as
Chief Justice Latham noted, to the purposes for
which the Commonwealth may make laws, nevertheless if there was any intention to impose a restriction
in those words, it would have been unnecessary to
use them had it been merely a restriction to the
purposes which the Commonwealth Parliament
determines to be appropriate.
In my submission, a more limited approach

is consistent with the approach to be adopted
generally in relation to the enumerated legislative
powers of the Commonwealth. It is always open to
the Commonwealth,in areas where it does not have
power to act itself, to make grants to the States
under section 96 and, of course, to impose conditions
on those grants. There is no need inherent in
the nature of the CONSTITUTION to extend the

power under section 81 to allow a spending for
any purpose whatsoever. And if, as in this case, that
spending may be accompanied by conditions specifying
the purposes and various other matters relating to
how the money will be spent then, in my submission,
we are very close to the situation where the
Cormnonwealth has effectively evaded the restrictions
on its powers which were imposed by way of enumeration
by means of establishing a grant to an authority
for the particular purposes which it could not,
itself, pursue. For those reasons, in my submission,
the spending in the present case is beyond the power

of the Cormnonwealth. Your Honours, I think those are
the submissions for the plaintiffs.

MASON CJ: Yes, thank you, Mr Basten. The Court will adjourn

now and resume at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

ClT38/l/MB	61	3/5/88
Davis
UPON RESUMING AT 2.16 PM:

MASON CJ:	Yes, Mr Basten.
MR BASTEN:	Your Honour, there were two points, if I may just

before I finally sit down, the first was that in
response to Your Honour the Chief Justice I said,
I think on two occasions, that there were comments
that Your Honour had made in relation to standing

and I should give you the reference: it was in
each case in Your Honour's decision in AUSTRALIAN
CONSERVATION FOUNDATION, 146 CLR, firstly at
page 550, at the bottom of the page, Your Honour
noted the difference between the American
constitutional requirement of "cases" and
"controversies" and ours of "matter" and noted
that there may be a wider constitutional scope
for the latter.
The second point, on the next page was that

Your Honour noted the constitutional cases did
not require discussion in that case and that appears
at page 551 at about point 7 and Your Honour noted
THORSON only in passing, I think.

MASON CJ:	Thank you.
MR BASTEN:	Your Honour, there was one other point, the learned

Solicitor has reminded me by asking if I was abandoning
the issue, we did, in the written submissions note
that sn alternative way of supporting standing
in relation to the appropriation power challenged
was by an extension of the argument based on ONUS
V ALCOA and the fact that the three plaintiffs
in this case are descendants of those who survived
the invasion of 1788. It is not my submission
that that would necessarily give them the cultural
and spiritual interest in the celebration of what

they would say is the invasion which would necessarily
bring them within any presently applicable test
in the ALCOA case. Nevertheless, the interest
which they have in challenging that unlawful
celebration or unlawful expenditure of money is
an interest which distinguishes them significantly
from any emotional or intellectual opposition which
others in the community might have and that was

not a matter which I meant to abandon. I was merely
taken out of order in the way I dealt with the submissions. I apologize for not dealing with
that before. It would be a basis on which they

would have a greater interest than simply as citizens
or taxpayers.

ClT39/l/ND	62	3/5/88
Davis
BRENNAN J:	I do not quite follow that, Mr Basten.	What is

it that gives them the interest? Is it biological
descent?

MR BASTEN:

It is biological descent, Your Honour, in relation - but the characteristic which is common

to them and their ancestors is that of their race which
is the characteristic of those who were overrun by

the invasion.

A race of people was reduced from some

40,000 to 50,000 to, it is suggested, 8000 or 9000

in 1900.

It is the characteristic of race which

links them with the matter of celebration, namely the

European settlement.

BRENNAN J:

But that rather assumes, does it not, a monolithic

reaction to the celebration by all persons of
Aboriginal descent?

MR BASTEN:

No, it does not assume any reaction, Your Honour.

It merely gives a causal logical connection between Aboriginal persons, if they should wish to make the challenge, and the expenditure in favour of the

celebration. It may be that there would be
differences of opinion, but that in itself would not affect the issue of the right to challenge, in

my submission. I accept that it is not a right -
I mean, it may have been true of the Gournditchjmara
people in ONUS V ALCOA, that some would wish to obtain
employment at Alcoa and might have been much in favour
of the smelter going ahead, whatever the effect on

their cultural heritage. That,in itself, would not
in our submission, be a relevant factor.
Those were the two points, thank you, Your Honour.

MASON CJ:

Yes, Mr Solicitor for New South Wales.

(Continued on page 64)

ClT40/l/HS	63	3/5/88
Davis

MR MASON:

I hand up a precis of our submissions.

MASON CJ:

Thank you.

MR MASON:

Your Honours, these submissions are those which I make on behalf of the Attorney-General for New

South Wales.

When I have completed them I will

adopt such of them as I am instructed to make on

behalf of the Attorney-General for Tasmania, for

whom I also appear.

MASON CJ:

Yes.

MR MASON:

As Your Honours will see we confine our submissions

to two areas; the prohibitions upon use of certain
prescribed expressions, termed to be found in
section 22(6)(d) of the Act and some remarks about
section 81 of the CONSTITUTION. Your Honours, the
scope of section 22 may be examined by looking at
22(l)(c) because in its terms it prohibits the use
of a prescribed expression in relation to the
promotion of the supply of goods. Thus for a
trader to say "For further information about my
activities see the Sydney 1988 yellow pages", or
for a trader to say, if it be the fact, "My address
is 88 Sydney Street", would be to contravene the
prohibition in section 22 of the Act, unless done
with the consent of the Commonwealth authority. We submit that the Commonwealth power is not so
broad as to go that far.
Dealing with the trade mark matter, Your Honours,

the submission is as stated in paragraph (a) that
the challenged provisions are merely an attempt
to establish a Commonwealth licensing system for
common words in the English language which have no
necessary connection with the activities of the
Authority or any intended use of the words by the

Authority as a distinguishing characteristic. Now,
the only passage of those which have been cited,

which I would wish to read, is the well-known remarks of Lord Justice Fry in RE DUNN 1 S TRADE-MARKS,
41 Ch D 455 where His Lordship said that he could
not help regarding Mr Eno's attempt to get the
words "Fruits Salts" as a trade mark:
(Continued on page 65)

ClT41/l/MB	64	3/5/88
Davis
MR MASON (continuing):

as an instance of that perpetual struggle
which ..... is going on, to enclose and
to appropriate as private property certain
little strips of the great open common
of the English language. That is a kind of
trespass against which I think the Courts
ought to set their faces.
Your Honours, the prohibition is in no way linked to the activities of the Authority
and the words for which the prohibition extends
are words that do not have any necessary
distinctiveness about them. And,in our submission,
one of the functions of a trade mark power, if
one looks at the common law ambit of the protection
of trade marks, or the statutory ambit of trade
mark protection, is the element of distinctiveness
as something which either inheres in the use of
the name, or is capable of inhering in the
use of the name through registration and user.
Without reading the passage, we would rely in
particular upon the lastafthe passages cited from
the speech 6£Lord Diplock in GENERAL ELECTRIC COMPANY,
that is referred to at the bottom of page 1 of our ·
submissions.
Paragraph 2(b) simply picks up the submissions

which have been developed by my learned friend
Mr Basten,this morning as to the irreducible
minimum of what was involved in the power to
legislate with respect to trademarks in the
constitutional sense.

(Continued on page 66)

CIT42/l/JM	65	3/5/88
Davis

MR MASON (continuing):

So far as the corporation's power

is involved, we submit that it could not justify

these provisions. The Commonwealth, to give an
example that picks up the facts of the
PHARMACEUTICAL BENEFITS case, could not, in our submission, create a corporation to provide health
services and endow it with a monopoly of the power
to license doctors and the corporation's power,
therefore, cannot in our submission be used as the
basis for a trespass of this nature into an area in
which there is otherwise lacking constitutional
power in the Commonwealth.
We otherwise in that respect adopt what my

learned friend, Mr Basten, has said. The submissions
about nationhood are based upon a point upon which
we make no submission as to whether there is, in fact, an inherent nationhood power but if there is,we submit that, on existing authority of this Court, it does not
support prohibitory legislation, legislation which
destroys the distribution of powers effected by the
CONSTITUTION and legislation going beyond the engaging and enterprises and activities ~eculiarly adapted to
the government of the nation which cannot otherwise
be carried on for the benefit of the nation~'. We
submit that the prescribed expressions parts of this

Act fail on all accounts. Our submission, summarized
in 4(d) - - -

DEANE J: Well, except they do not all fail, do they? I mean

what about Australia?

MR MASON: Well, yes, they all do. Australia would, in our

submission - a monopoly on the use of the word
"Australia 1988" would contravene each of 4(a), (b)
and (c) on my submission. There is no peculiarly
Commonwealth interest in regulating the use of those

words. I think 4(d) encapsulates the three more
specific grounds that had been referred to in
4(a), (b) and (c) of our written submissions. The

territories power which we also understand to be
intended as a basis of support does not, in our
submission, justify the provisions to which objection
is taken and we submit that section 122 does not
support legislation dealing with activities outside
of the relevant territory which lack a sufficient or
rational connection with the territory.
(Continued on page 67)

ClT43/l/SH	66	3/5/88
Davis

MR MASON (continuing): Again, reverting to the fact that

there is no intention in the legislation that the
Bicentennial Authority will, itself, be using these
words or have any particular involvement with the
use of these words that creates the absence of
the relevant nexus that must be established in
our submission.
Your Honours, on the appropriation powe~ or

in the alternative way it is put - the power under
section 61 of the CONSTITUTION of the executive,
the Commonwealth executive, to act and the power
of the Commonwealth Parliament under 5l(xxxix)
to pass laws incidental to the activity of the
executive, the submission is that the Commonwealth
lacks power to pass laws or to appropriate expenditure
if it is not linked to a legislative head of power.
Now, legislative head of power, in this sense,
may include the nationhood power and if the nationhood
power supports a bicentennial celebration well
then the submission that is here being put lacks
any substance or any content in the present case.
But, if there were absent any legislative power
in the Commonwealth to pass a law relating to the
celebration of the bicentenary then, in our submission,
the narrower approach to section 81, which was
adopted by the Chief Justice Barwick and
Mr Justice Gibbs in the AAP case or, alternatively,
the approach adopted by Your Honour Mr Justice Mason
so far as the expenditure is concerned on those
alternative views which seem to lead to the same
conclusion would mean that the expenditure would

not be justified. But I stress that no submission
is made as to whether or not the nationhood power
extends.
Your Honours, the Attorney-General for Tasmania

has instructed me to put on his behalf the submission
which appears in paragraph 4 of this precis as
to the limits of any nationhood power if it exists,
and I do not have instructions to involve him in

any of the other submissions that have been put. (Continued on page 68)

ClT44/l/AC	67	3/5/88
Davis

DEANE J:

Mr Solicitor, do we not, and probably you are not the person I should have asked, but do we not have
to look at these a little more closely if your
general submission is accepted? I mean what would
you say, for example, about 22(1)(d)?

MR MASON:

Under the power to prohibit the importation of

an article which has the prescribed symbol on
it, yes, that would appear to be justified,
Your Honour, under the importation power, yes.

DEANE J:

Then when you go to (c) dependi.ng on what

"in relation to" means, even if the broad thrust
of your argument was accepted, it is not apparent
to me that it would follow that a narrow meaning
of (c) in terms of the word "Australian" would be
sort of necessarily in the same category as say
the words "founding" or the words "200 years"?

MR MASON:

My submission certainly is that with regard to

all of the prescribed expressions that are there

used what I put applies. I accept what Your Honour
is putting to me, but they are all words, in my
submission, which are common words of description
either of an event or of a place which should be
the right of any person to use without let or
hinderance or regulation and I picked on Sydney
simply as an example but - - -

DEANE J:

What I was ~and as I say this should probably

have been directed to Mr Basten, is that if his
ar8ument in so far as it is relevant to this case
were to be accepted, other than in relation to, say,
the name of the Authority and its symbol or
whatever it is called, I would want to hesitate
before I went beyond the applicability of the
sections to the relevant items involved here
rather than to go off with some high and wide
declaration that nobody has thoroughly analysed
the various applications of the section?

(Continued on page 69)

ClT45/l/SR 68 3/5/88
Davis

MR MASON:

We only come because we understand, and have for

some little time, that the Commonwealth would be
seeking to justify the whole of the Act, and it is
true that the bits to which I have addressed remarks
are perhaps not areas in which the plaintiffs have
run foul of the law. If the Court pleases.

MASON CJ:

Thank you,

Mr Solicitor.

Mr Solicitor for the

Commonwealth.

MR GRIFFITH:

If I may hand the Court copies of our contentions.

If Your Honours please, by way of explanation, those
contentions were prepared on the basis arising from
the ruling of His Honour Sir Harry Gibbs on the

application to strike out. That was referred to by

my learned friend Mr Basten, so reported _
in 68 ALR 18 where what was pursued by the plaintiff
was the claim that, in particular, sections6 to
section 18, as well as section 22, section 23 and
section 25 were invalid, and also, as is referred to
by His Honour Sir Harry Gibbs, also it was claimed
that the entire Act was invalid. That is at the

bottom of page 25 of the report. So that we prepared
these contentions on the basis that the entire Act was
under challenge. Just perhaps referring to the course
of my learned friend's argument, we understand him, in respect of the Act, as limiting his argument and attack to section 22 and section 23 only, but we
regard this as an in globo attack on those two
sections.
It would be our submission that even if those two

sections were held beyond power, clearly, ex facie,
they are severable from the rest of the Act, so that
there is no flow-on consequence to the rest of the
Act and we do not understand my learned friend,
Mr Basten's submissions as including a submission that
there would be any effect on the rest of the Act.
(Continued on page 70)

C1T46/1/HS	69	3/5/88
Davis

MR GRIFFITH (continuing):

As we understood the later part

of his submissions he was directing his arguments
for standing and invalidity to the appropriation
only and not to the parts of the Act other than

sections 22 and 23. Of course, we have not
challenged the issue of standing in respect of
the matters pertaining to some aspects of sections
and 23. But as to that - and it was something that was noted on in the last exchange between
my learned friends, the Solicitor-General for
New South Wales and Justice Deane, that we say
that, in our submission, the starting point with
reference to the plaintiffs' claim, perhaps
anterior to the consideration of the issue of its
standing,is to consider precisely what the claim
is. And if I may take the Court briefly to the
amended statement of claim as it stands after the
order made by Sir Harry Gibbs on 13 November wherein

paragraphs 7 to 18 and paragraph 40 of the
original statment of claim was struck out.
The drift of the struck out paragraphs can

be picked up from the reported judgment but there
is no occasion for us to take the Court to those
omitted paragraphs now. Briefly looking at the
amended statement of claim, paragraph 1 lays the
foundation, as we see it, for claims for standing
both by being members and descendants of the
Aboriginal people of Australia and also citizenship.
Paragraph 2 lays the foundation for a claim in
respect of applicant for user in respect of
prescribed symbols and prescribed expressions.
Paragraphs 3 and 4 are self-explanatory.

Paragraph 5, as we see it, lays the claim for
standing, as far as it is put in respect of standing
as taxpayers. Paragraph 6 seems to further buttress
the claim made in paragraph 1 in respect of

Aboriginal status. Then follows a reference to
the deleted paragraphs. Paragraph 19 alleges that:

The First and Second Defendants intend
settlement of Australia to
to cause the two hundredth anniversay of non-indigenous
be the occasion of celebrations.

That, of course, is agreed. Clause 3 of the
memorandum set out in paragraph 20, which is, as
my learned friend noted, also set out in pages 27
to 28 of the demurrer book and the objects of course
make very clear what is the object of the Authority
in respect of the implementation of the celebrations
which are alleged in paragraph 19.
Paragraph (1) indicates that the Authority

1 S :

ClT47/l/ND	70
Davis

to make arrangements, in relation to and
for the purpose of the carrying out of its
primary object, with any of the following
Governments -
and then mentioned are the governments of any State,
Territory and also the Commonwealth Government.
(2) to develop and to recommend to the said
Governments -

that is, all governments -
a theme and focus for the programme;
(3) to promote involvement and participation
in the programme by the said Governments,
municipal and other local government
authorities, community bodies and the public
generally;
(4) to encourage initiaties and to draw upon
ideas from the community generally -

et cetera in respect of -
activities connected with the commemoration
of the said bicentenary;
(5) to stimulate throughout the Australian
community enduring consciousness of the
historic basis and significance of that
commemoration;
(6) to conduct national competitions for
the design of Australian Bicentenary symbols;
(7) to recommend to the Government of the
Commonwealth means by which the programme
might be given international significance
and by which Governments and peoples of other

countries might take part in the commemoration;
and -

so that there is an aspect of external affairs
there raised -
(8) to implement and to execute as part of
the programme Government decisions arising
from recommendations by the Authority or
otherwise arising and directed to the carrying
out of the programme.
(Continued on page 72)

ClT47/2/ND	71
Davis

MR GRIFFITH (continuing): Paragraph 21 alleges the enactment

of the BICENTENNIAL AUTHORITY ACT of 1980; then
follows allegations to section 6 to 10 inclusive.
Paragraph 26 alleges the appropriations by the
Parliament of the Commonwealth.
There is an allegation in paragraph 7 that

there was an appropriation, 1985-1986. Obviously,
of course, that appropriation is now a completed
appropriation and if I could indicate to the Court
there are two other relevant appropriations subsequent
The first would be the APPROPRIATION ACT (NO 1) 1986-1987
which also, of course, is complete and the current
APPROPRIATION ACT is APPROPRIATION ACT (NO 1) 1987-1988
and that Act on page 71, division 511 appropriates
under the heading - Australian Bicentennial Authority,
For expenditure under the AUSTRALIAN BICENTENNIAL
AUTHORITY ACT 1980 - $91,469,000. That is page
71 of the print of the APPROPRIATION ACT (NO 1).
So that we would submit, on any view, it

could only be the current appropriation which could
be the subject-matter of an attack. Paragraph 28
alleges payment of the appropriation. Paragraph 29
alleges, one would suppose is relevant to the claim
in respect of taxpayers, that it is likely to increase
the burden of revenue collection. Paragraph 30
refers to the preparation by the Authority of

estimates and receipts. Then follow allegations
of various sections in paragraphs 31, 32, 33 which, as we understand my learned friend's argument today
are no longer being attacked as invalid.
Similarly, section 21 is alleged in paragraph 34;

that section, of course, provides for, in effect,
a sunset for the Authority. Section 21(1) says:
It is hereby declared to be the intention
of the Parliament that the winding up of the
Authority should be completed on or before
30 June 1990 -

although there is a provision within the section to enable some flexibility as to that, one would

suppose, as occasion might arise. We would, of
course, concede that upon the winding up of the
Authority it could not be supposed that there could
be any continuing force and effect given to sections 22

or 23. Then section 22(1) alleges, by reference
to section 22(1) in a somewhat rolled up allegation,
what we take to be an allegation as to the terms

of section 22 and also in that a reference to the prescribed expressions. I should indicate to the Court that prescribed expressions are not limited to
those set out in subsection (6)(d).

ClT48/l/AC	72/73
Davis
MR GRIFFITH (continuing):	Statutory Rule 222 of 1982 had

the effect of prescribing further prescribed symbols,
there described as the "Third Symbol", "Fourth Symbol"
and the "Fifth Symbol". Presumably they were symbols
arising from the competition, or whatever,
referred to in the objects of the Authority and
would seem to be the symbols in recent years adopted
by the Authority rather than the symbol which is
the schedule to the Act. Although that is a symbol
reflected in one of the applications by the plaintiffs
it does not seem to be the common symbol of the
Authority, if one may take judicial knowledge of
that. The symbols on the lines of those attached
to Statutory Rule 222 of 1982 seem to be the usual
symbol.
Regulation 4 of Statutory Rule 1982 prescribes

further expressions:
For the purposes of paragraph 22(6)(d) .....
namely, "Australian Bicentenary", "The
Australian Achievement", "Australia 200",
"Sail", "Sail Australia", "Opsail",
"Operation Sail", "Tall Ships" and "Tall
Ships Australia".

So they are added to the list which is in paragraph ( i)

of paragraph (d) of the Act itself. Returning to the

pleading, paragraphs 36 to 38 plead relevant parts
of section 22 and section 23.

WILSON J:

Mr Solicitor, would it be convenient to let us

have a copy of those Statutory Rules?

MR GRIFFITH:

I am sorry, Your Honour, Your Honours should

have them because they were on our list of statutory
materials. If the Court does not have them we
could have them copied at once and handed up.
Section 25 is alleged in paragraph 39 but that
seems now not to be under attack. Section 41
alleges a special interest which now would seem to

be limited to matters pertaining to the attack on the appropriation. Section 42 alleges that:
The first Plaintiff has designed and printed for sale and wishes to continue to design and
print for sale in connection with his
business ...... articles of clothing bearing
the name of the Authority and certain symbols
and expressions.

Those matters are covered by the allegation in
paragraph 23 where the plaintiff alleges:
by letter dated the 25th March 1986 requested
the Second Defendant to give him consent
in writing for use of the aforesaid words,
symbols and expressions.

ClT49/l/MB	74
Davis

Could I take the Court briefly to that letter which
is set out on page 17 of the demurrer book and
then to the four applications which next follow,
somewhat out of order?
(Continued on page 75)

ClT49/2/MB	75
Davis
MR GRIFFITH (continuing):	Somewhat out of order, if I may

first take the Court to the application on page 19,
we would concede that that application would contain
on its face the words "200 years" in conjunction with
"1788" and "1988" and, thus, would seem to fall within
section 22(6)(d) with respect to the use of a prescribed
expression. It does not seem that the application is
for use of a prescribed symbol, however, or an official
symbol because the form adopted by the application does
not seem to be one which is in full conformity with the
first symbol and the second symbol set out to a
schedule of the Act save. that it could be put - and
perhaps it is not necessary to put it any higher -
that the shape of the symbol in the middle of the
circle on page 19 reflects the shape of the second

symbol on the schedule to the Act. We would say that
the application is not for the use of the first symbol
because, al though there i's some similarity in the
design in the centre, it does not include the circling
words "Australian Bicentenaryu, so that it would seem
that this application does concern one prescribed
expression "200 years" when used in conjunction with
"1788" and "1988" and also could be regarded as
involving the use of the second symbol, the official
symboiwithin the meaning of paragraph (d).

If we could turn back then to the previous

design, we would submit that that does not fall within the definition of section 22 at all save that it would
seem to be covered by the prescribed expression
"Australian Bicentenary~' · in statutory rule 222 that

I referred to. Once more, there is no use of an
official symbol or a prescribed symbol. The third application on page 20 does not, in
our submission, involve any matter which would require consent either for a prescribed symbol or a prescribed

conjunction with "1788", "1988" or 11 88 11 so that we would expression. There is no prescribed expression used in
say that that application is one not requiring consent

we would submit it does not nearly resemble the official and, similarly, on page 21, we would submit that there is no application to use the prescribed symbol; that symbol as to be capable of being mistaken for it and
that there is no other use of prescribed expressions.
Turning to page 22, it is our submission that the

design is not identical with an official symbol or a prescribed symbol and does not so nearly resemble an
official symbol or prescribed symbol so as to be

capable of being mistaken for one. So that, in essence,
we would submit the plaintiffs' claim' is in respect of the
application on page 19 using the expression "200 years"
in conjunction with the words "1788", "1988" and the
use of the expression "Australian Bicentenary" on the

application on page 18. Now, in that context, if I
rµay take the Court back t0- the remainder of the staterent of claim:

ClTS0/1/SH	7 6 I 77	3/5/88
Davis

MR GRIFFITH (continuing): Paragraph 44 alleges the

refusal of consent. That letter appears
on page 23 of the demurrer book, where
the Authority gives as its reason - the
last sentence of that letter:
has a responsibility given by
Act of Parliament to ensure the proper use of its symbol and prescribed expressions by authorised persons and for it to give permission for the use
suggested by your client would be a
dereliction of this duty.

Page 9, paragraph 45, an allegation of intention
to sell these goods; similarly, page 46, to
distribute the goods and then there is a general
allegation that several provisions of the Act
referred to, which,asimentioned, included section
6 to 18 and 25, as well as sections 22 and 23
are beyond power; and further allegations, along
the same lines, in paragraph 48.
In paragraph 48A the statement of claim

as amended amends:
appropriation of money by the First
Defendant as set out -

and I mention to the Court the additional two
annual Acts of appropriation since then, including
the current APPROPRIATION ACT (NO. 1) of 1987-1988.
And then says:
In the premises the appropriation of money by the First Defendant as set out herein for the purposes of the second Defendant
and generally for the i:urposes of the
celebration of the bicentenary in 1988
of the first European settlement in
Australia is ultra vires.

As to that additional allegation, we would submit
that there is no allegation in the statement of
claim of any particular appropriation other
than the annual appropriation Act, and we have
referred the Court to the current annual

APPROPRIATION ACT. And in that circumstance,
it is our submission to the Court that the matters
at issue should be regarded as being confined to
the issue of this particular appropriation expressed
as I have read to the Court, being an appropriation
to the Authority.

BRENNAN J: But does that make any difference? When the Parliament chooses to utilize an incorporated body for the purpose of achieving its object,

must one not look at the objects of that body,

CIT51/l/JM	78	3/5/88
Davis

and indeed, look at its whole constating documents
for the purpose of determing what the Parliament
is doing?

MR GRIFFITH:

Of course, Your Honour.

I have not made myself

clear. The claim for relief is a claim wider
than the claim for relief in respect of the
appropriation to the Authority and the claim that
certain sections of the Act are beyond power.
At the foot of page 10 of the application book
there is also a claim for:
a declaration that the appropriation of
money ..... or the celebration of the
bicentenary in 1988 of the First European
settlement in Australia is ultra vires -

So that the disjunctive expression after the
identificationof "Australian Bicentennial
Authority"in the fourth last line, we submit is

as far as one can go. We say that there is
no relevant allegation to justify a claim for
any further relief :in respect of a wider
appropriation. It was only in that - - -

BRENNAN J~ Itisinrespect of celebrations which find their

origins outside the Authority.

MR GRIFFITH: Yes, Your Honour. And we submit, Your Honour,

that there is no basis from this statement of
claim for the c·ourt to engage in an unspecified
declaration in respect of unspecified appropriations.

None is identified, Your Honour. We are happy to
identify the current unspent appropriation, but
we submit, Your Honour, that the claim for relief
is limited to the appropriation for the purposes

of that Authority. But as to Your Honour's
question the answer is, yes, we agree.
(Continued on page 80)

CITSl/2/JM	79	3/5/88
Davis

DEANE J:

Mr Solicitor, when the Australian Government

Solicitor writes that to permit the use of
prescribed expressions in the manner suggested would
be a dereliction of its duty, what is the
philosophy underlying that? What is it talking
about?

MR GRIFFITH:

Your Honour, I have no instructions on

that, but perhaps one could imply.it. For example,
if one looks at the application on page 22 of the
application book, we would submit, Your Honour,
implicit in the celebration there is some aspect
of,put it neutrally,national dignity - - -

DEANE J:

I was looking more at the first three? Is the

philosphy that you cannot use those words in
terms of criticism?

MR GRIFFITH:

Your Honour, I have no reason to suppose that

there is any such philosophy, I have no instructions
about that, but I suppose it might be put,
Your Honour,that is just a suggestion, that when
one looks at the objects stated in the Authority's
objects clause which are reinforced by the Act
they have an aspect of celebration and if you like
to use perhaps a previously worked phrase "national
conciliation" or "reconciliation".

DEANE J:

A sort of forced feeding?

MR GRIFFITHS: Perhaps agreeable happiness, consensus of

happiness. Now by and large birthdays are
celebratory_ events even if one is older than one
likes to be and,Your Honou½ that is mere surmize,
but one can see a theme here of in a way the
antithesis of celebration. Perhaps that leads in
a way to a matter raised by Justice Toohey earlier
on 1 Your Honour, there is a ground stated and
there are obviously, we would submit, Your Honour,
because it is not included in the· schedule to
the ADMINISTRATIVE DECISIONS OUDICIAL REVIEW)ACT,

not a permissible ground then reasons could have there was a mechanism for review, so if that were
been obtained if additional reasons were required
and the matter could have been dealt with there.

Your Honour, perhaps to point at the expression, although we find its meaning elusive, when one looks
at the letter application on page 17, the last
sentence is:
If we do not hear from you within
21 days of the date of this letter we
shall assume that your consent will not
be forthcoming.

Now, that is perhaps to express, it might

ClT52/l/SR	80
Davis

mean then that the applicants will not proceed to
use the marks because they have not got consent but
otherwise it might be an indication that the
applicants, who after all were the Aboriginal Legal Service Ltd were perfectly apprised of their rights
and, Your Honour,on the basis that one might fairly assume they were aware of their right to challenge
the right of the refusal, one could regard the
issue of the writ as a conscious choice of remedy.
A writ, Your Honour, which on its face and through
the proceedings before His Honour Sir Harry Gibbs
challenged the Act and the appropriations in globo
but, Your Honour,that is really more a matter of
inference from the nature of those documents. In that context, and we will refer to it again,

we would submit that the matters truly at issue here
are of limited compass in respect of two particular
expressions which are prescribed expressions and
one symbol which would seem to be fairly close

to the second official symbol and no more. The
amended demurrer, I do not think there is any
need for me to take the Court in any great detail
to it, but it really treats the pleading at face
value and alleges generally no cause of action,
that the Act is wholly valid and making particular
allegations in answer to each of the allegations
of standing and they were matters of standing identified
by the judgment of Justice Gibbs.
(Continued on page 82)

ClT52/2/SR	81
Davis
MR GRIFFITH (continuing):	Your Honour, my learned junior

has pointed out that I have fallen into error. There
is only one prescribed expression involved and not two,
because the expression on page 18, although it uses
"Australian Bicentenary", the other words are
"discovered and discoloured", not "1788 1988". So
that, in that case, Your Honour, no permission will
be required by - it is not used in conjunction;
therefore permission is not required. So one comes
back to the single application.

DEANE J:	No, that is in the regulations, "Australian Bicentenary".
MR GRIFFITH:	Yes.
DEANE J:	It does not need the "200 years", does it?
MR GRIFFITH:	Yes, Your Honour, because it is for the

purpose of section 22(6)(d) and, Your Honour, that
takes it within subsection (d)(ii) and then one
picks up the conjunction as part of subsection (d)(ii)
the suffixes:
when used in conjunction with "1788",
"1988" or "88".

So we would submit, Your Honour, that the reference
in regulation 4 is to really add words to
paragraph (i).

DEANE J:

Yes, I follow, thank you.

MR GRIFFITH:	Your Honour, I was in error to say that two were apparently relevant.	It is only the one that
would seem to be relevant.

GAUDRON J:	Are not the numbers 1788 to 1988 there?
MR GRIFFITH:	On page 18, Your Honour?

GAUDRON J:

On page 18 - I am sorry.

Thank you.

MR GRIFFITH:	Your Honour, page 19 was the one I conceded.
GAUDRON J:	Yes, thank you.
MR GRIFFITH:	I also conceded page 18, but improperly.
BRENNAN J:	Mr Solicitor, would it be right to say that the exercise of a licensing power by the bicentennial with respect to the use of these words in the manner indicated in the statute must be governed by the
purposes for which -the objects of the Authority?
MR GRIFFITH:	Your Honour, we would say that must be the case because there is no other guidance given by the
legislation.

ClT53/l/HS	82	3/5/88
Davis

BRENNAN J:	Quite, which means that the words are prohibited for purposes which are not in accordance with those
objects.
MR GRIFFITH:	No, Your Honour, we would not take that extra

step. We would say that in giving permission one
gives it by reference to the objects and if, Your Honour,
for example, the use of the words where permission
was required had no effect at all on the - say, no
detrimental effect on the objects, even if it had
no positive effect on the attainment of the objects,
we would submit that the Authority, none the less,
could grant permission.

BRENNAN J:

It would appear, would it not, that the use would

be prohibited if it was antithetical -if the proposed
use was antithetical to the objects of the -

MR GRIFFITH:	Your Honour, perhaps that is a matter one would have to argue before the Federal Court if one
reviewed the application, but prima facie we would
submit that that would be the case, Your Honour, that
if there were a use which was regarded as inconsistent with the attainment of the objects, well then, one
would suppose a body would have to act reasonably and
make a decision as to whether or not in those
circumstances permission were granted; but not
inflexibly, of course, Your Honour.

BRENNAN J:

Yes.

I was not thinking in terms of the way in

which one would approach an application for

judicial review. I was thinking of the purpose to
bind legislatively from the prohibition that is
expressed there.

MR GRIFFITH:

Your Honour,could I put it it obviously

would be a relevant matter properly to be taken into
account.

BRENNAN J:

Would it be more? Would it not be a governing

consideration?

MR GRIFFITH:

Your Honour,

that is difficult because one would

then have to exhaustively list what are the other
possible considerations and one might be, Your Honour,
it is because one wanted to put a cobbler's
address at 88 Sydney Street, Potts Point. Now,
Your Honour, perhaps I should not refer to that

example because then I have to face up to and answer

it. Your Honour, it is very difficult, on the face
things, to regard that as being embraced within the
prohibition at all, and I think our primary
submission about my learned friend's submission on
that situation would be to say that that would not
be a proper manner to read the prohibition as
applying literally.

ClT53/2/HS	83
Davis
BRENNAN J:	The particular thing that I was concerned about

was this: let us assume that there is a T-shirt
printed which reads "1788-1988 200 years of

oppression", could that be approved by the Authority
consistently with its charter?

MR GRIFFITH:

Your Honour, that would be a matter, I suppose,

of anxious consideration of its charter to see
whether or not that fits in with the philosophy

of national celebration in its aspects as described

by the objects.

On one reading, Your Honour, perhaps

that could be and one might say, "Well, we are

one nation, we acknowledge the fact that there

was a dispossession of the pre-existing occupants
of the land.", for example, along the lines of
the proposed preamble to the ABORIGINAL AND TORRES

STRAIT ISLANDERS COUNCIL ACT and it might be thought

then, Your Honour, it is appropriate that one should

celebrate a bit the good with the bad and acknowledge

the fact that there are arguments to be put and
cases to be met on these issues.

Your Honour, it could be a matter of degree or taste. For example, one might say Your Honour's

example was appropriate but the example on page 22

was not but that could be a matter of acting

reasonably and if one acted in a way which could

not be regarded as reasonable the mechanism for

review is open but, Your Honour, it is not part

of our submissions to say that the thrust is all

celebration and that there is no detrimental aspects

of the settlement which may fall within the

attainment of the objects and one would incline

to think, Your Honour, and perhaps that is confirmed

by the annual report when one sees the balance

of activitiy that the Authority is concerned with
the good and the bad, the realization of past wrongs,
perhaps making some reinstatement or other

recognition.

BRENNAN J: It may be, however, that the consideration Jf

the objects would be a matter of anxious concern
in determining the scope of the nationhood power?

MR GRIFFITH:

Yes, Your Honour, and we would submit the objects

and also the whole history of the Authority how
it was set up; for example, Your Honour, one relevant

matter to the objects is to go to the foot of the

memorandum and look at the subscribers. And if
I could take the Court briefly to that. They are

listed and then their signatures follow. But they

are listed on pages 35 to 37 and one can see basically
in two by twos, like mounting the ark, one has
the relevant leaders of the government and opposition
in the Federal Government and then a State by State
premier and leader of the opposition and, similarly,
for the Territory so that there is an element,

ClT54/l/ND	84
Davis

we would say, Your Honour, which would indicate
that the executive act of incorporating this
Authority as a company within the Australian Capital
Territory was not a universal act of the exercise
of executive power by the Commonwealth but a
culmination of an arrangement made with the
concurrence of all the States and Territories of
the Commonwealth and also apolitically with each
government and each of the oppositions.

Your Honour, on page 50, one sees in the

articles that the identification of those as
subscribers was no accident. Paragraph 3 provides
that the members of the Authority, and those which
under the articles then have the control subject
to the operation of the Act which was subsequently

passed, consist of these very people. So that
the provision is there, Your Honour, and obviously
they have acquiesced to the extent of them becoming
subscribers and members of the company on its
formation.
(Continued on page 86)

ClT54/2/ND	85
Davis
MR GRIFFITH (continuing):	Your Honour, we would submit,

that it is not necessary to come to a concluded
view as to the extent to which matters not going to sort
of celebration but more consideration, if one likes,
could be taken into account. But, on the face
of things, one would have thought, properly, they
could as long as one has regard to the basic aspect
that the Authority is concerned with matters pertaining
to a celebration. It is not just a party,
Your Honour, it is a celebration of 200 years of
settlement - not settlement of New South Wales,
it is settlement of Australia.
Your Honou~ on page 27, my learned junior points out, the expression "commemorate" is used

in the preamble to the various objects. Paragraph 3
of the memorandum:
The primary object for which the Authority
is established is to formulate, to plan, to
develop, to promote, to coordinate and to
implement, consistently with applicable
legislation of the Parliament of the Commonwealth,
a national programme of celebrations and
activities ("the programme") to commemorate
the bicentenary in 1988 of the first European
settlement in Australia.

So then the other objects are attached to that and I note that the conventional third schedule
objects are excluded, so one just has these narrow
objects and not the wider objects.
Having thus referred to what one may glean,

or garner, from the memorandum of articles, may I take the Court, briefly, to the annual report of the Authority. That does, in our submission,
flesh out this aspect of co-operative federalism
which one might see by implication from the matters
we,referred to briefly in the memorandum and articles.
Perhaps, the convenient course is if I quickly

run through the report and make passing reference
to some other parts of the report which) we say,
are of relevance in considering whether or not
the Authority is a trading or financial corporation -
but I do not think I need dwell on those parts
for very long.
On page 2 there is a reference in the sixth

and seventh-last line~ above the signature of
Mr Kirk, to Mr Stanley Tipiloura:
has been nominated to replace
Professor Eric Willmot as the Aboriginal
representative and will join the Board.

C 1 T 55 / 1 / AC	86	3/5/88
Davis

If I take the Court then to page 7 there is a
summary of the establishment of the Authority which
fills in the void before the registration and,
perhaps, I could read that to the Court:
On 5 April 1979, the Commonwealth Government
announced its intention to establish, in
conjunction with the State and Territory
Governments, The Australian Bicentennial Authority
to plan and coordinate a national program
of celebrations to commemorate Australia's
Bicenten~r~ The Authority was incorJorated
in the Australian Capital Territory on
21 January 1980 as a company limited by
guarantee with a representative Board of Directors
nominated by the Commonwealth, State and
Northern Territory Governments.

Then it mentions who the subscribers were.
The Commonwealth Parliament passed the
AUSTRALIAN BICENTENNIAL AUTHORITY ACT covering
the administrative matters and protecting
the Bicentennial symbol and certain words
and phrases associated with the Bicentenary.
The Act received Royal Assent on 23 May 1980.
In the Commonwealth sphere the Authority is
responsible to the Prime Minister, who was
assisted in Bicentennial matters by the then
Minister fot Arts, Heritage and Environment until 24 July 1987. This role has now been
assumed by the Special Minister of State.
In Victoria, the Authority is responsible to the Minister for the Arts; in Tasmania to the Minister for Sport and Recreation; in Western Australia to the Minister for
Minerals, Energy and Arts; in the other States to the respective Premiers; and in the Northern

Territory to the Chief Minister. (Continued on page 88)

ClTSS/2/AC	87	3/5/88
Davis

MASON CJ:	Well, now, what is this bring out, Mr Solicitor?
MR GRIFFITH:	Your Honour, we say that it indicates that

the Authority really is a functioning arm of a
state of sensible and co-operative federalism between
the Commonwealth and the States, so that we would
use that, Your Honour, to identify that if one comes,
as will be our submission, Your Honour, to identify
the Authority and the Act as being legislation -
well, particularly the Act, Your Honours, as being
legislation which is supported by the incidental

power - one would say, "Well, what is it supporting?"
We submit, Your Honour, one could say it is not merely supporting what might ordinarily be regarded
as an exercise of the Commonwealth executive power
but of an exercise of Commonwealth executive power
of an unusual sort, Your Honour, namely, one exercised
with the complete agreement and co-operation and,
we would say, pursuant to an arrangement made
between the Commonwealth and the State. In that
way, Your Honour, we would seek to take any of the
sting which one might - Your Honour only has to look
to the left and right of me and see the excitment
that it causes - have if one starts referring to
what might be described as powers of nationhood
to support activity by reference to - in this case
we were primarily supported by reference to the
executive power rather than any particular head
of legislative power.

WILSON J:

I take it there is no parallel legislation in the States?

MR GRIFFITH:

Not that we know of, no, Your Honour. Your Honour, perhaps to make our position clear

But,

it is our primary submission that the executive
activity is the establishment of the Authority and
the making of the agreements with the States and
the Territories and that the legislation is merely
supporting that mechanism, we say, validly established

within the executive power. So that our primary

submission is that the Authority and its objects
are validly established and supported by the
executive power itself and they,of course,were - it
was established in place with those objects and
pursuant to these agreements referred to before
the Act was passed. It was incorporated, as we see,
on 21 January 1980. The aims and objectives are
then set out on page 8 that we have already seen.
Just in passing, on page 31, there is reference

to a national Aboriginal and Torres Strait !slander
programme processing applications in respect of
Torres Strait Islanders and Aborigionals. There are

full details of current payments there in appendix 1

on pages 101 to 104. I do not think there is any

need to take Your Honours to that. One pages45 and 46

ClT56/l/MB	88
Davis

there is a reference to international participation
and we would, of course, support that aspect of
activity under the external affairs power, sufficiently

supported by executive action. Of course, one of the
particular objects - I think the last object
contemplates, or the second last object contemplates
that activity involving the Authority.

BRENNAN J:

Was this the subject of international concern?

MR GRIFFITH:

Well, Your Honour, it is a matter of international relations, in our submission, Your Honour. It is

just the ordinary relations of Australia with
foreign countries and one aspect, Your Honour, is
to establish in their minds our independent nationhood.
Your Honour, one only has to travel overseas to find

that there is some scope to do that. Perhaps by
way of anecdote, Your Honour, I still find it

difficult to explain in New York how it is that

we are a truly independent nation when one quarter

of our flag is devoted to the English flag.

understand it and whatever the state of local debate,

Your Honour, there is no difficulty about our

perception of independence, but it is not one that
is automatically shared by countries with a different

past. Perhaps that is just an anecdotal example,

Your Honour, that would go to support it, although I hasten to disclaim giving evidence on that point.

Perhaps the contents given by the description here,

Your Honour, on these two pages.

(Continued on page 90)

ClT56/2/MB	89
Davis

:t1R GRIFFITH (continuing): Page 48 and following indicates

by reference to the ..... and following

what State activities there are. I will not
take the Court to each example, but, for example
on page 49 under the heading "State Government
Involvement" is the statement that the Authority
has a close association with the Premier, who
has become President of the Council and indicates
the projects with which the States have become

involved. And it is clear that State money in considerable amounts has been made available to commemorative activities co-ordinated by the
Authority, and each State has a similar arrangement:
51 for Victoria, 54 for Western Australia,
52 for Queensland - I am sorry, I avoided that,
and page 58 for South Australia, page 60 for Tasmania,
and so on.
There is a brief description on page 69 and 70 on licensing functions, which no doubt are relevant
to sections22 and 23 and over to page 71, 72

some description of that. On page 77 there is

a statement of income and expenditure. The other
income noted with note 18 - one picks up note 18

on page 84~ that hcludes royalties and licensing

fees. So there is a significant income and I
have indicated that the appropriation for this
year is some $91,469,000 and, of course, substantial
expenditure.
On page 80 there is a reference in pargraph (h)

to State/Territory Government cost sharing
agreements:
Memoranda of Understanding between the
Commonwealth and the Governments of the
States and the Northern Territory provide that agreed administrative costs of State and Territory Bicentennial Councils will

be shared equally between the Commonwealth
and the respective State/Territory

Governments.
All State/Territory contributions and
related expenditure have been included in
the accounts of the Authority.

We would regard that as confirmatory of the operation of the Authority, we would say, as a co-operative
arrangement of the exercise of the executive power
of the Commonwealth and the States.
On page 81, note 5, there is a reference to Victorian Government program funds and note 6
refers to contingency fund to use the licensing
and other receipts. Page 84 lists State/Territory
Government contributions received for current

administrative costs, that IB $2.4 million. I

have_mentioned paragraph 18 already.

CIT57/l/JM	90	3/5/88
Davis

There is a statement on page 87 of the

grants expenditure cmtracted for, that the various
expenditures - - -

DEANE J:	Mr Solicitor, on page 70 under "Licensing", does
that indicate that the licensing of these
names and words is a profit-making activity for
the Commonwealth?
MR GRIFFITH:	Your Honour, we assume not, but we really

do not know anything more than Your Honour.

DEANE J:

It seems to read as if it is.

MR GRIFFITH: Yes. Well, Your Honour,I read that last

night, but, Your Honour, one does pick up that
there are other activities, for example, this

diary referred to. Your Honour, it would seem
that that refers to a different activity from
the giving of permissions under section 22 or 23,
but, Your Honour, I must say we just make that
assumption having thought of that point and
tried to work out, well, where does the money

come from. Your Honour, I do not intend to argue
there is a power to extract a licence fee and
if permission were refused on that ground, one
would have thought there would be an open and
shut case for review under the ADMINISTRATIVE

DECISIONS OUDICIAL REVIEW)ACT. There is no
suggestion in the corresondence here, Your Honour,
of monetary payment.
(Continued on page 92)

CIT57/2/JM	91	3/5/88
Davis

l1R. GRIFFITH (continuing):

Your Honour, there is an

exhaustive statement on pages 93 to 96 of receipts
and payments and State and Territory government
contributions for the year and one can pick up
from those two pages, Your Honour, that there is
a substantial and significant participation by
each of the States and Territories other than the
Australian Capital Territory or Northern Territory.
So we would refer to that as giving some detail
which otherwise the Court would not have before
it as to the situation of the Authority in the
context of the co-operative arrangements between
the Commonwealth, the States and the Northern Territory
in respect of the commemoration and in that
way the operation of the Authority in the context
of its original registration as effected by the
Act, particularly the sections we have referred to.

But having engaged in that general but

quick examination and as we indicated,having
prepared our contentions on the basis we thought
that all the Act was in issue, if we could now
turn to what seems to be the course of attack of

the plaintiffs before the Court today. The
obvious preliminary issue is the question of

standing. Now we have indicated to the Court
that we do not intend to challenge the plaintiffs'
standing in respect of the prescribed expression
for which it made application and that we would
concede that the plaintiffs are entitled to put before
the Court their argument that in as much as paragraph (d)
required the prescribed expression to be one
bearing consent for the purpose of using the words
"200 years" and "1788" and "1988" on page 19,
the plaintiff is entitled to argue that that
requirment is beyond power. Perhaps to anticipate
what would be our submission if that argument
were upheld, we would submit, the result should
in the circumstances go no far than the expression
"200 years" should be regarded as being beyond power
and not validly included within subsection (6)(d)(i).
And our basic submission is that so far as validity

of the Act is concerned,that is the limit of the
plaintiffs' .relevant standing for relief.

BRENNAN J:	Why not the "1788" or the "1988"?
l1R GRIFFITH:	Your Honour, because that is the"in conjunction"

expression.

BRENNAN J: Well it takes two to tango?

l1R GRIFFITH:

Yes, it does, Your Honour, I am being ungenerous.

We will concede that the expression "200 years"

used with "1788" and "1988". I should have
expressed it that way, Your Honour, I was not generous

ClT58/l/SR	92	3/5/88
Davis

but my learned friend, Mr Basten, no doubt will say that I was the antithesist of generosity in
conceding that much. But, Your Honour, that was
really the point we took before Sir Harry Gibbs
and His Honour took the course which we concede
was open to him to leave these issues of standing
fer determination by this Court and at least the
effluxion of time has narrowed some of the issues
because now we are only concerned so far as the
Act is concerned with two sections rather than
the entire Act. But, Your Honour, my learned
friend then -we do not entirely understand the
basis for it but we will seek to meet his
argument -did e~pand on these foreshadowed
arguments of allegations of standing to support the attack of appropriations which was a matter
raised in the amended statement of claim, particularly,

more than the original statement of claim so that
that although·the original allegations on matters
of Aboriginal status, Australian citizen taxpayer
were connected to the Act they now have also been
attached to the amended claim in respect of the
issue of appropriation.
Your Honour, we have prepared a submission on

this and it seems to us that perhaps the most
convenient way for us to make our submission to
Court would be to hand a summary of that submission
to the Court which to some extent then is self-
speaking as to what our general submission on
standing are.
(Continued on page 94)

ClT58/2/SR

3/5/88

Davis
MR GRIFFITH (continuing): If I may hand to the Court -

if I may, for the moment, hand up seven copies because
I find I am embarrassed by only having three spare
copies here.

MASON CJ:

Yes, thank you.

MR GRIFFITH: If I could, again, make the point that these

notes were prepared in anticipation that the entire Act

was attacked.

DEANE J:

Mr Solicitor, have you finished what you are going to

say on the two particular sections?

MR GRIFFITH:	No, Your Honour.
DEANE J:	You are going to deal expressly with the power that

you justified particularly terms.

MR GRIFFITH: Yes, we have to, Your Honour, yes. But, Your Honour,

it does seem to us that it is appropriate to put in context
the standing issue before we get to that and then it was
our intention, having gone through the merits, as it were,
to come back and say, "Well, although the Court is
entitled, in effect, to have a 'wait and see'',' it remains

our primary submission that, having had a look, the Court
should come back and say, "Well, looking at it, we feel
we should apply the traditional approach to standing and
we will go so far and no further".
We state in paragraphs 1 and 2 what we would

refer to as general principles of standing and in

paragraph 3 we refer to some of the factors which we
say are clearly established, particularly in this Court,
but we feel that the Court also is assisted by the decision in 1982 where the United States' Supreme Court discuss these issues in the context of constitutional
review in that court and we would reconnnend - and I will
refer briefly to some of the statements in the opinion of
the court in each of those two case.

Paragraph (c) on page 2 really picks up the point

made already by Justice Dawson to my learned friend,
Mr Basten, this morning and we would point out that it
would seem that from what is said in the THORSON and the
BOROWSKI case that the position in Canada might be slightly
different; that one picks up from the decision of the
Canadian Supreme Court, perhaps an indication that one
cannot in Canada quite so rely upon the State
Attorney-Generals to, in effect, carry responsibility to

protect the integrity of the federal system but we refer
further in these notes to the Canadian position.
On page 3, we refer to the ap__proach state.din

the VALLEY FORGE case by the Supreme lourt and we would refer the Court to the particular pages, 482 to 483 but, perhaps, it is sufficient to refer to that extract there

ClT59/l/SH	94	3/5/88
Davis

and indicate that, really, the Supreme Court
judgment in VALLEY FORGE is an up-to-date and,
we submit, an appropriate examination and.elucidation
of what we submit is an appropriate approach of a
court in the position of this Court dealing with
a challenge to constitutional validity.
My learned friend did refer to the Canadian

cases of THORSON and BOROWSKI and also to the English
cases, SMEDLEY and 'Mickey Mouse'; but perhaps if I
could refer briefly, at least, in the BOROWSKI case,
130 DLR (3d) 588. At page 606 there, in the judgment
of Mr Justice Martland, after discussing the authorities,
he says - the last full paragraph on page 606:
I interpret these cases as deciding that

to establish status as a plaintiff in a suit
seeking a declaration that legislation is
invalid, if there is a serious issue as to its
invalidity, a person need only to show that he
is affected by it directly or that he has a
genuine interest as a citizen in the validity
of the legislation and that there is no other
reasonable and effective manner in which the
issue may be brought before the Court. In ~y
opinion, the respondent has met this test and
should be permitted to proceed with his action.
Well, our submission is that approach just does

not reflect and for the reasons we summarize by
reference to this point, what is either the established
rule as to standing in constitutional case in this Court
and also in non-constitutional cases and, we submit, it
does not state an appropriate approach to be adopted by
this Court. For that reason, we would submit that if.
one is to consider,in respect of a Federal CONSTITUTION,
what should be the appropriate approach of this Court,
we do say that the American Supreme Court approach is
to be the preferred one.

(Continued on page 96)

ClT59/2/SH	95	3/5/88
Davis

MASON CJ:

What is the standing of provincial Attorneys-

General to challenge federal legislation in
Canada? You made a reference to it a moment ago
but what is the position?

MR GRIFFITH:	Your Honour, may I take that on notice and answer it tomorrow morning?
MASON CJ:	Yes.
MR GRIFFITH:	I am afraid I am not able specifically to say,

Your Honour. I did pick up from the - the
impression that one gets - perhaps it is not helping
the Court to refer to impressions but in Canada
the position is clouded by the existence of the
advisory opinion jurisdiction so that there is
a different approach and, Your Honour, I think
Mr Justice Laskin did refer to the question that
there would be no other way to challenge.

MASON CJ:	Yes, in the passage which you have just read.
MR GRIFFITH:	Yes, that was not the Chief Justice there,

Your Honour, but it is the same result.

MASON CJ:	I see.
MR GRIFFITH:	Could I answer your question specifically

tomorrow, Your Honour?

MASON CJ:	Yes.
MR GRIFFITH:	So that we would submit that the allegation

of Australian citizenship really is of no relevance on the issue of standing and the further allegation garnered from the several paragraphs of the
statement of claim to which I have referred dealing
with the question of status as a taxpayer, however
defined, in our submission, takes the matter no

further. But on page 4 of these notes we do make a
brief sul:::mission dealing with the question of

Aboriginal status. We feel that perhaps my learned friend's submissions on this, made this afternoon, were
made but faintly. Certainly they were confined
to the issue of the challenge to the appropriation
power.
But our basic submission is that if one has

regard to the thrust of the ONUS V ALCOA decision
to identify particular attachment as a limited
group to a particular geographical area with a
traditional attachment to physical objects - now
it is not necessary to go that far but that was
the basic situation in the ALCOA case - we submit that the basis upon which the plaintiffs here put
their claim is far far removed to that and, in
essence, we would submit it is very close to the

ClT6O/l/ND 96
Davis
position of any particular member of the
Australian Conservation Foundation in the ACF case.
It is a matter of by reason of Aboriginal descent
an intellectual and emotional involvement and inasmuch
as there is a line, we would submit that the plaintiffs

here must comfortably fall on the side of the line 11 no standing" and we did submit here when we drew
it up ''no standing for the purpose challenging

the Act". We would submit that they could be in
no stronger position for the purpose of challenging
the appropriation but, of course, there is real
difficulty in respect of the appropriation in any
event.
On page 5 we refer to the question of standing

as taxpayers. We refer to the cases mentioned
in discussion with my learned friend before lunch in paragraph 9, the decisions of this Court which
would we say, particularly LOGAN DOWNS, indicate
that there is authority of the Court on this question
of standing as a taxpayer in respect of appropriation.
Of course, LOGAN DOWNS might have been regarded
as a stronger case. Here it is just a claim as
a contributor to the consolidated revenue rather
than being the person who may be advised to
contribute to a particular fund and thus affected
by particular legislation involving that fund.
In paragraph 10 we make some, we would say, conventional points as to arguments which support

that approach. My learned friend did refer to
FLAST V COHEN in 1968 as establishing that a taxpayer may have standing in constitutional litigation
in the United States but he was perhaps correct
to concede that that is now circumscribed. We
would submit the effect of the SCHLESINGER and
the VALLEY FORGE cases, and this is referred to
in paragraph 11 of the submission, is to
circumscribe it narrowly indeed and it is clear
from the opinion in VALLEY FORGE that one must
show a particular financial interest as a taxpayer

to have access to the FLAST V COHEN type standing
which has some residual recognition.
(Continued on page 98)

ClT60/2/ND	97
Davis
MR GRIFFITH (continuing):	I do not think it is necessary for

me to read those particular page references but
those two cases do indicate the narrowing of that
recognition. In paragraph 12 we refer to the
Canadian cases and make the point that, perhaps,
I have sufficiently made that really one is dealing
with a reflection of a different approach when
one considers the statements made there which really
are not very much removed from the question of
standing of any citizen and I think Your Honour
Justice Deane in exchanges as to what is a taxpayer
in this context, or how one deals with a government
in deficit, we would submit, made relevant points
as to how difficult it is to identify general interest
as a taxpayer as in any way marking one out as
a potential plaintiff.
So, for those reason we would submit that,

both in respect of appropriations and challenging
the Act - at the moment we just refer to challenging
the Act - the particular allegations to establish
standing as a taxpayer, as a citizen, as a member
of the Aboriginal race, in our submission, is not
sufficient to extend the conceded standing beyond
the narrow ambit we earlier referred to.

BRENNAN J: Mr Solicitor, does it follow from that that if,

for example, there was an appropriation to the
St Patrick's Day committee that the Ulstermen could
not object or to the committee of 12 July that
the Irishmen could not object?

MR GRIFFITH:

Your Honour, it might well become a question

of the content of the executive.power. I suppose
in a way that is the next step along, but, Your Honour,
we would submit, basically, to answer Your Honour's
question, that there would not be standing on the
basis of mere intellectual or emotional concern.
Now, it is very difficult, Your Honour, to be

dogmatic about standing. The ACF case and, particularly,
ALCOA V ONUS indicate, Your Honour, that standing

is not something to be determined in the abstract.
It is to be determined by reference to a particular
claim by particular claimaints.
Now, in the ALCOA case, Your Honour, the claim

was fleshed out by evidence in cross-examination
given in connection with a concurrent application
for injunction which enabled the Court tb have
before it evidence - it had not been cross-examined but
had not been denied, Your Honour, that there was

this physical attachment to the land. Now, absent
that, one cannot say necessarily, Your Honour,
that there was sufficient there to establish standing

but it was there. The Court dealt with the facts

ClT61/l/AC	98	3/5/88
Davis

as they were before it and made a decision which

was appropriate to the circumstances. Now, we
would submit, Your Honour, a general question of
the sort Your Honour makes: it is all right to
do it to celebrate a nation's birthday but you cannot do it to celebrate a saint's is one that
is not amenable in our respectful submission,

Your Honour, to a general answer. One would have
to look at the circumstances, Your Honou~ and make
a decision in the circumstances as they are standing.
Now, Your Honour, my learned friend touched

upon the point that he anticipated our submission
that appropriation could not be justiciable. Well,
that is not our submission, Your Honour, we do
not seek to make that submission. Now inasmuch as we are involved here, can it be justiciable,
Your Honour? We say that is not a question before
the Court, the question is: is it justiciable
here to the extent that are you here with a properly
pleaded claim with sufficient standing to support
your assertion that you are entitled to argue it

and have a determination on the merit. Your Honour's
question about St Patrick's Day - perhaps the answer

is, it depends. One cannot say definitely no but
one cannot say yes either, Your Honour. Well,
that is not an answer Your Honour.
(Continued on page 100)

ClT61/2/AC

3/5/88

Davis
MR GRIFFITH (continuing): If I could use Your Honours' Irish

example as a vehicle to anticipate a submission,
Your Honour, we would submit that really it is
for the executive to determine what we are to
celebrate. It can determine to celebrate the
opening of Parliament on Monday week or have a
holiday.

BRENNAN J:	That is a question of power?
MR GRIFFITH:	Yes.
BRENNAN J:	It does not really say anything about standing,

does it?

MR GRIFFITH:	Perhaps it does not, Your Honour.
BRENNAN J:	In other words, it may well be that there may be

standing that the plaintiffs would fail, but that
is a different question.

MR GRIFFITH:

Yes. Well, it is the whole problem about these case, Your Honour;

in the ACF case, Your Honour,

there was a clear allegation of lack of compliance
with the procedures provided in the legislation.
Now, for the purpose of demurrer you assume it is
all true, in other words, that you have made out
the complaint that there was non-compliance with
procedures which, according to law, should have

been complied with. But the effect of the application
of the standing test of the threshold was that those
issues were never examined so that one will never
have the satisfaction of vindicating that allegation
which was assumed for the purposes of proceeding

or not. In our submission, Your Honour, that is
really inherent in the nature of the course of
constitutional challege.
There are some useful expressions of this in

the SCHLESINGER and the VALLEY FORGE judgments

where the court there make the point that the court
is not there merely to give abstract advices as to
constitutional validity, it is there to determine

concrete issues. I appreciate Your Honour Justice Brennan'E
point that one cannot cite Patrick Day by saying, "We
will look at the particular thing", it is a question
of standing. But then the question is postulated,
standing in respect of that particular nomination.

BRENNAN J: Well, that is the proposition, is it not? One

looks at the particular exercise of legislative
power in this case, which is sought to be attacked
and one must ask the question whether there is
standing in respect of that kind of exercise of
power?

ClT62/l/MB	100
Davis
MR GRIFFITH:	Yes, Your Honour, in the particular circumstances

of this attack. It is not general question, Your Honour,
to say that one has an attack in respect of one
prescribed expression, that is a launching vehicle to attack the whole Act and: we understand my learned

has disclaimed that. So that it is question of
standing for a particular purpose and one has to
identify the purpose, it is not a question of sort of
one in all in, that once you say you have standing

one can challege everything, Your Honour. One must
still test whether you have a relevant interest.
Then, Your Honour, I was going to move to another
point, that even if one discerns something that
seems to be a relevant interest, in our submission
it is then necessary to ask a further question,
Your Honour, and that is whether or not the issue
before the Court is something appropriate for the
Court to determine.
In other words, we submit, Your Honour, that

the Court, even if feeling that there is a case
made out for standing, still cannot go on and determine
issues which are really abstract or hypothetical

questions. Now, the fact that it is a hypothetical
or abstract question may be merely a reflection of

the fact that there is not standing. But even if one
finds that there is standing, Your Honour, we would
submit that it is necessary to still consider in
the way - well, really, it was referred to by
His Honour Justice Gibbs in ROBINSON V WESTERN
AUSTRALIAN MUSEUM, (1976) 138 CLR 283 at 303 where he said:
The court, in balancing the conflicting
considerations, will remember that it cannot
decide a question of validity as an abstract or
hypothetical question.

And, of course, the same theme, we would submit, was determinative of this Court's short judgment
in COMMONWEALTH V QUEENSLAND, 62 ALJR 1, that my

learned friend referred to this morning, where in
the short judgment it was said on page 1:
The plaintiffs ask us to determine as abstract
questions of law important and complex questions
which are necessarily involved in the making

of such a declaration. The statement of claim
does not allege or particularise an actual
case in which an issue as to the validity
or operation of the QUEENSLAND ACT has
arisen for decision.

ClT62/2/MB	101
Davis
1:1R. GRIFFITH (continuing):	We would submit that when one

looks at that judgment, for example, on the next
page, 2:
The Court will not undertake the
task of charting in the abstract the
outer limits of the legislative power
of the CoIIll!lonwealth in order to
ascertain what a valid operation of
a State law might be.

One then finds the Court referring to the fact that
it has a discretion to grant declaratory relief.
Now, here there is a claim for declaratory relief
and we would submit that when one considers the
wide ranging nature of the plaintiff's claim in
as much as we coIIll!lenced in reverse order dealing
with the trade marks power, and had an argument
based on the UNION LABEL case in respect of that,
corporations power, territories power, nationhood power - in essence, we would submit, the Court is
being asked to write an essay on significant current

topics in constitutional law. From the - - -

MASON CJ:	It must be a short essay though, Mr Solicitor.
MR GRIFFITH:	It might be, Your Honour. You know, perhaps I

would be - use the word again - more generous about
this, Your Honour, if we had been aware that we did
not have to come along to defend the entire Act. That
has narrowed things a bit, but Your Honour, it is an
attempt to open up all these issues so, for example,
as part of our argument dealing with the trade marks
power, we intend to seek leave to ask the Court to
overrule the UNION LABEL case. That is just incidental
to our submission on that aspect of meeting my learned

friend's argument. Now, we do submit, Your Honour,

that these issues are relevant to the Court considering
the extent to which - and it is partly involved with
standing and it is partly beyond standing - it is
appropriate to parse, even section 22 and section 23,
word by word, line by line, paragraph by paragraph, and

mechanism of one out of four applications which in effect give a negative clearance based on the involves the prescribed expressions "200 years",
"1788 1988", and we concede, of course, that that
is a discretionary matter, but we submit that it is
a matter where the Court should truly exercise an
appropriate discretion.
Now, these sorts of issues were discussed, as

I mentioned, in the opinion of the Court which was
given by the Chief Justice in the SCHLESINGER case.
If I could take the Court briefly to 418 US 208, at
page 221 and 222 where they were discussing the issue
of concrete injury, and starting at page 220:

ClT63/l/HS	102
Davis

Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of

judicial resolution. It adds the
essential dimension of specificity to
the dispute by requiring that the complaining party have suffered a
particular injury caused by the action
challenged as unlawful. This personal
stake is what the Court has consistently
held enables a complainant authoritatively
to present to a court a complete perspective
upon the adverse consequences flowing from
the specific set of facts undergirding his

grievance. Such authoritative
presentations are an integral part of the
judicial process, for a court must rely on
the parties' treatment of the facts and
claims before it to develop its rules of

law. Only concrete injury presents the
factual context within which a court, aided
by parties who argue within the context,
is capable of making decisions.
Moreover, when a court is asked to undertake
constitutional adjudication, the most
important and delicate of its responsibilities,
the requirement of concrete injury further serves the function of insuring that such adjudication does not take place

unnecessarily. This principle is particularly
applicable here where respondents seek an
interpretation of a constitutional provision
which has never before been construed by the
federal courts. First, concrete injury removes
from the realm of speculation whether there
is a real need to exercise the power of
judicial review in order to protect the
interests of the complaining party.
"The desire to obtain [sweeping relief]

cannot be accepted as a substitute for
compliance with the general rule that the complainant must present facts sufficient
to show that his individual need requires
the remedy for which he asks."
Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts
to which the court's ruling would be applied.
This is especially important when the relief
sought produces a confrontation with one of
the coordinate branches of the Government;

ClT63/2/HS	103	3/5/88
Davis	(Continued on	page 103A)

here the relief sought would, in practical
effect, bring about a conflict with two
coordinate branches.
To permit a complainant who has no concrete
injury to require a court to rule on
important constitutional issues in the
abstract would create the potential for
abuse in the judicial process, distort
the role of the Judiciary in its
relationship to the Executive and the
Legislature and open the Judiciary to an
arguable charge of providing
"government by injunction".
(Continued on page 104)

ClT63/3/HS

103A

3/5/88

Davis

(Continued on page 104)

MR GRIFFITH (continuing): We do not intend, of course, to

take that too far and incorporate the structures
of the American government as a basis for submitting
to this Court that it should act likewise but - - -

WILSON J: Just how far do you take this argument on standing,

Mr Solicitor? As I understood your first
proposition, you do not challenge standing
in respect of the challenge to sections 22 and 23?

MR GRIFFITH:	In respect of the words "200 years", "1788", "1988", we do challenge it any wider than that
in respect of sections 21 and 22 and,Your Honour,
we would have been able to have perhaps neglected
this part of the submission if it were not for the
fact that this claim for standing resurrected
in respect of the claim under the appropriations
power and the - - -
WILSON J:	Yes, I appreciate its relevance to the second

limb of Mr Basten's argument, but your first
contention simply alleges the plaintiffs lack
standing to challenge any part of the Act other than
sections 22(i) and (iii)?

MR GRIFFITH:

Yes, well, Your Honour - - -

WILSON J: Is there a further definition of it there?

MR GRIFFITH: Yes, I am giving further content to that,

Your Honour. As I mentioned it was framed on the
basis that we apprehended the whole Act was under
attack and we were seeking to -

WILSON J: Yes, I can see that but - - -

MR GRIFFITH: - - - narrow it down, but Your Honour I hope

the Court is in no doubt as to the extent of our
concession on standing.

WILSON J:

I must say, I think it is a bit unfair to stress

the point that only one of the four applications
needed the approval of the authority. Why did it
not tell them that they were free to go ahead and
use the others?

MR GRIFFITH:

Your Honour, one explanation is that they did not seek my advice. But, Your Honour, on the

other hand I do not know whether my learned friend

was involved but the letter was written by the

Aboriginal Legal Service so perhaps there was knowledge

on both sides, I do not know. Perhaps there was no

knowledge.

But it does not make any difference,

Your Honour, if we - - -

WILSON J: Well that is what I thought I wondered why you

were going to such pains to address it?

ClT64/l/SR

104

3/5/88

Davis

(Continued on page 104A)

MR GRIFFITH: Your Honour, if after looking at each one we
found one expression in one and one in another it would still be the same argument only we would be
dealing with four expressions and perhaps another
symbol rather than only one, but our argument would
be the same. The Court, in our submission, should
confine ourselves to considering whether those can
be supported.

(Continued on page 105)

ClT64/2/SR 104 A 3/5/88
Davis

MR GRIFFITH (continuing):

I apologize to the Court for

being so long to get to the essential issue,
namely the mechanism by which we support the
prescribed expression "200 years 1788-1988"
and that is, in our submission, primarily to
be supported by reference to the executive

power under section 61. We submit that the
fact that the company was incorporated in the
Australian Capital Territory puts beyond argument
any question of the power of the executive so to
act to establish the Authority.
If I could refer the Court to JOHNSON V KENT,

without taking the Court to the judgment itself,
(1975) 132 CLR 164, particularly His Honour
Sir Garfield Barwick at page 169. His Honour
said:
Section 61 in relation to the Territory
in my opinion includes traditional executive
power broadly embraced in the description
of "the preogative" exercisable in the
Territory.
We have already referred to parts of the

annual report which indicate that this was a
peculiar company incorporated as a result of
co-operative agreements between the Commonwealth
Government and the overnments of the States and
the Northern Territory. So that, we would say, if nothing else; one cannot say that here there
is a case at all of any possibility of a trespass
into area of State concern.
We have referred the Court to the primary objects of the company set out in the demurrer
book, page 27, to plan and implement a national
programme of celebrations and activities to
conn:nemorate the bicentenary in 1988, and taken

the Court, we think sufficiently, through the
report of those processes. (Continued on page 106)

CIT65/l/JM	105	3/5/88
Davis

MR GRIFFITH (continuing):

We submit that this celebration

is an object within the executive power of the
Commonwealth to engage in certainly a loan and,
we would say, even the more so in co-operation
with the cons ti tu ent parts of the Federation.
In our submission, the celebration of a birthday
at a 200-year interval is really of a no different
character so far as executive power is concerned
than the celebration of an annual birthday, Australia
Day, Anzac Day - perhaps it could be regarded as similar to aspects such as a designation of a
national flag, national colours, national anthem,
matters of that sort.
We would submit that it is of the essence of a matter for the executive as appropriate to exercise executive power by reference to
consideration and then determining upon a course

of celebration - commemoration. In that way we
would seek to support the question of executive
power at a lower level, if we may put it that way,
than reliance upon what might be put as the
independent implied nationhood power, reference
to which can be obtained from the AAP case and
various parts of the TASMANIAN DAMS case to which
the Court has already been referred.

DAWSON J:	You say it was incidental, the legislation?
MR GRIFFITH:	The legislation is incidental to the exercise

of executive power, in our submission, Your Honour.
We submit that the executive power supported the
establishment of the authority with the objects
which it has and the executive power in itself,
in our submission, is sufficient to support the
appropriation and the implementation of a programme
for national commemoration without any legislation.

(Continued on page 107)

ClT66/l/ND	106
Davis

DAWSON J: It is a curious argument because, primarily - I

know that you say that went further than this - but
primarily the executive power is the execution of laws
and it is a sort of circular argument - - -

MR GRIFFITH:	Yes, well, Your Honour, this is - - -
DAWSON J:	And then you can pass laws incidental to that

function.

MR GRIFFITH:	Yes. Well, Your Honour, as to the extent of executive power, perhaps if we could indicate that
we would accept the analysis of this this sort of issue of executive power which was made by His Honour the present Chief Justice in the AAP case and then referred to by some of the judgments in the TASMANIAN DAMS case. For example, the Chief Justice
Sir Harry Gibbs refers to the statements made by Justice Mason as being with reference to the executive
power and then, I think, Sir Harry goes on himself to - referring to His Honour Justice Mason's, the present
Chief Justice's qualification that one must still
remember that the CONSTITUTION is a division of powers. must bear the same thing in mind dealing with the
question of allocation of powers under the CONSTITUTION
so far as legislative powers were concerned and, as we
read Your Honour's judgment in the TASMANIAN DAMS case, the same point is made but, Your Honour, we would submit that a statement of the executive power is appropriately
made by, in this case, His Honour Justice Mason, as he then was, in BARTON V COMMONWEALTH, (1974) 131 CLR 477.
At page 498, Your Honour the Chief Justice said:

Bys. 61 the executive power of the Cornnonwealth
was vested in the Crown. It extends to the
execution and maintenance of the CONSTITUTION
and of the laws of the Cornnonwealth. It enables
the Crown to undertake all executive action which is appropriate to the position of the
Conunonwealth under the CONSTITUTION and to

the spheres of responsibility vested in it by
the CONSTITUTION. It includes the prerogative
powers of the Crown, that is, the powers accorded
to the Crown by the conunon law.
(Continued on page 108)

ClT67/l/SH	107	3/5/88
Davis

DAWSON J:

For my own part I find some difficulty in fitting

section 2 into that scheme.

MR GRIFFITH:

Yes, or covering false - - -

DAWSON J: Section 2 of the CONSTITUTION, is it not? Have

I got the wrong section?

MR GRIFFITH:

Not at all, Your Honour, I would have the wrong

section. I appreciate the line of argument that
Your Honour refers to, that the exercise of
prerogative power is to be regarded as derived through

section 2. Our submission, Your Honour, is that
section 61 is sufficient in itself to have the
effect adumbrated by the short statement - - -

DAWSON J: If that argument is right, we need not have had

all these arguments about the external affairs
power, need we, because it would be incidental
to the exercise of the executive power in concluding
a treatyto legislate to implement the treaty?

MR GRIFFITH:

Your Honour, I suppose it is a ~uestion of

what is the content when one says, 'Extends to the
execution and maintenance of this CONSTITUTION and of
the laws of the Commonwealth"enables the Crown
to undertake all executive action which is
appropriate to the position of the Commonwealth
under the CONSTITUTION and its spheres of
responsibility vested in it by the CONSTITUTION.
Your Honour, it has never been thought that the
implementation of a treaty is something that, firstly,
could proceed without legislative sanction and,
secondly, Your Honour, it is conventionally regarded
as supported by the external affairs power.

DAWSON J:

I know it is but on this argument you do not need

the external affairs power. If you can use the
incidental power in conjunction with the executive
power then that is a perfect example because the

conclusion of a treatyis an exercise of the executive
power and the implementation of the treaty is
incidental to that.

MR GRIFFITH:

Your Honour, I suppose, to summarize our position

we are less ambitious than that. What we submit
is, adopting the argument - - -

DAWSON J:

I just wonder, does not that indicate that the

executive power, perhaps, may be somewhat less
than people have said it has been?

MR GRIFFITH:

Your Honour, it is a hard question to answer - - -

DAWSON J: It 1s.

ClT68/l/ND	108
Davis
MR GRIFFITH:	- - - because at the moment one is not sure

exactly what the executive power is so that it is not a question of whether it is less, we do
not really know what it is yet.

DAWSON J:	- - - never to discover.
MR GRIFFITH:	Your Honour, we would submit that the discussion

by His Honour Justice Mason in the AAP, as was
referred to by Sir Harry Gibbs in his judgment
in the DAMS case, does represent what we would
submit is the conventional view as to the mechanism
for the support of what we refer to as the
executive power.
(Continued on page 110)

ClT68/2/ND	109
Davis
MR GRIFFITH (continuing):	Now, Your Honour, if, on the

other hand, as we understand it, the alternative

the exercise of prerogatives pursuant to section 2 11 - suggestion is to say, well, "If you can derive
and perhaps there is a problem there now after the
AUSTRALIA ACTS to applying that, but apart from that,
Your Honour, if one says, "You regard the exercise

of executive power other than that exercised in support of legislation as deriving from section 2 11 - - -

DAWSON J: Let me understand it? Are you saying that this

legislation is supportable under the incidental
power, it being incidental to an exercise of the
executive power? Because, if you say that, I find
difficulty with that notion?

MR GRIFFITH: Yes, well, we do, Your Honour. We say that

the - - -

DAWSON J:	But you would never have any limits then, would you? I mean for instance, spending is an executive
act.

MR GRIFFITH: Yes, Your Honour, but one has to have an

appropriation under the CONSTITUTION to have the
money to spend.

DAWSON J:	Then you can - that does not govern the spending of the money, and you then simply have legislation
to support the spending and presumably you would
say there is no limit on what you can spend the
money for because the purposes of the Cormnonwealth are within the power for the determination of the
Connnonwealth itself.

MR GRIFFITH: Well, Your Honour, it is a difficult issue

because - - -

DAWSON J: And then when you - and, indeed the Chief Justice

did posit limits in the AAP case, limits which

were to be found by reference to the legislative
powers of the Cormnonwealth.

MR GRIFFITH: Well, Your Honour, clearly there are different

ways to express the limits. For example,
Justice Deane expressed the limits by reason
of reference, as we remember, Your Honour, referring
to the heart of what he referred to as the
incidental power - this is dealing with the

independent power, Your Honour - and then indicating
that as it, for example, trespassed into area of
State concern, then one would quickly come to a

limit on it. Now, Your Honour, without going to
the argument that - - -

DAWSON J: Well, what are you saying? You find the limits

of the executive power in the legislative powers
give~ to - - -

CIT69/l/JM	110	3/5/88
Davis

MR GRIFFITH:

Your Honour, they derive from the question

really of the issue of the establishment of
the Commonwealth as a body politic.
(Continued on page 112)

CIT69/2/JM	111	3/5/88
Davis

DAWSON J: Yes. Well, of course, the establishment to the

Commonwealth of body politic is to be found in

the CONSTITUTION itself. I can understand an
argument which says ~'Well, you don't have to look at
each of the powers given to the Commonwealth separately.
You can look at the totality of powers and when you do that you see a body which has been erected
and what is incidental to the functions of that
body is permitted under the incidental power."
But, unless you do it in some such way as that
then the whole thing becomes too amorphous for
my mind.

MR GRIFFITH:

Your Honour, I suppose for present purposes

one could here get to the same result because of

the narrow issue here. It is not the independent
power of doing something that is not provided for under
the specific legislative power allocated to the
Commonwealth and trespasses into an area of State

concern. Here it is a question of national celebration
in clear and demonstrated co-operation with the

constituent parts of the Federation. Now, if
Your Honour adopts Your Honour's approach we would
suppose that a national celebration annually or
biannually or every second century would come within
it.

DAWSON J: All I am saying is that I find it hard to get

to it through the executive power for the reasons
that I have given.

MR GRIFFITH:

Your Honour, we would submit that there are

some guide-posts through decisions of this Court,
particularly if we follow the judgment of
His Honour the present Chief Justice in the AAP case
which would indicate this course of approach.
Now, it is certainly one, Your Honour, that one
cannot say in the DAMS case was one which is spelt
out as being- particularly when one comes to an

issue of independent power, Your Honour. But for

go to this question of independent power at all the purposes of our argument here we seek not to because, if for no other reason, Your Honour, it
is obviously a polemical area and we feel it is
sufficient to argue in less contentious areas but,
of course, Your Honour, putting that we are not
avoiding the area of contention that Your Honour
points out.

(Continued on page 113)

ClT70/l/AC	112	3/5/88
Davis

MR GRIFFITH (continuing): It may be sufficient, Your Honour,

for the purpose of this case to aggregate the
powers in the way Your Honour indicates and in that
to get to the last paragraph of section 51 as

supporting the legislation. But one would also have
to, in that way, support the incorporation itself.
That was done by an executive act not by any legislation,
and we say that there is no difficulty about that
and it is not under attack either, Your Honour, so
that if the entire Act went one would still have
the registered Authority with those objects, and, we
would allege,still able to receive money under
the appropriation for the purpose of its object. If
the entire Act went you would not have thA benefit

of section 21 and section 22. But
otherwise the mechanism would be just, in our
submissionl as completely in place and the
appropriation valid as if there were no Act at all

or as if the Act had not been passed. The Act
is not crucial to, we submit, the valid existence

and operation of the Authority. Now it is our
preferred submission, Your Honour, that one can
support it by this route that we indicate, Your Honour,
of saying that one has a case of incorporation
by reason of action of the executive which then
is separately supported by an exercise of legislative
power to give incidental and further operation
to it to provide the additional statutory provisions
including the statutory protections of section 21 and 22.
Now, it is difficult, Your Honours, to take -

well at this stage I should not attempt to take it
any further, Your Honour, but perhaps we can
indicate we appreciate Your Honours line of argument,
but our submission is that the appropriate approach
is to look at section 61,and by referring to the
incidental power which does refer separately to the
executive power,to enable support to be given as

may be appropriate to legislative action. Now
obviously, Your Honour, that has its limits because,

of course, it is limited by reference to the
executive power itself. (Continued on page 114)

ClT71/1/SR	113	3/5/88
Davis

MR GRIFFITH (continuing):

Your Honour has given an example

in respect of external affairs which would indicate

and confirm the existence of limits. Now, as to
where those limits may be we say that that is not a question for determination in this case because one is dealing with the narrow,if one likes,the heart
of this sort of general national capacity to celebrate
a birthday.

BRENNAN J:	Mr Solicitor, can I just ask you one question, the answer to which you might like to give me
tomorrow, that is, did the executive do anything relevant in exercise of its power under section 61
here save incorporate the Authority, and if that be so can the Commonwealth give effect to its
purposes by an agent if that agent is not amenable
to the jurisdiction of this Court under section 7S(v)?

MR GRIFFITH:

Yes.

Your Honour, I could answer the first but,

perhaps, if I could answer that tomorrow and perhaps
answer the subsumed question as to whether this
authority is subject to 7S(v).

MASON CJ:

On that note it may be convenient to adjourn,

Mr Solicitor.

AT 4.21 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 4 MAY 1988

ClT72/l/MB	114	3/5/88
Davis

[1988] HCATrans 80

Key Legal Topics

Areas of Law

Constitutional Law

Administrative Law

Statutory Interpretation

Legal Concepts

Standing

Jurisdiction

Judicial Review

Statutory Construction

Appeal

a justification for the provisions in the Act.	I
refer in the outline of argument at paragraph 9
to a number of authorities with respect to the
proper test which may be applied in relation to
whether or not a law will fall within the power in section 5l(xx). Perhaps it is sufficient,

up to this point in time.	May I read the following
paragraph at point 6:

undertaken by the Commonwealth because that	property is part of the heritage of the Australian
nation, no such view was taken in the division
of power made by the CONSTITUTION. Although
it can be said that the protection or conservation of the Australian cultural and natural heritage
is in the national interest (and the submission
can be put no higher), that does not carry with it the implication that the Commonwealth has power to legislate with respect to the matter.

and this relates specifically to section 61 -	it is evident that in scope it is not unlimited
and that its content does not reach beyond
the area of responsibilities allocated to the Commonwealth by the CONSTITUTION,
responsibilities which are ascertainable from
the distribution of powers, more particularly the distribution of legislative powers,
effected by the CONSTITUTION itself and the
character and status of the Commonwealth as
a national government.

that moneys are so appropriated.	The possibility
that the Act itself may be justified as being an

with locus to attack an appropriation?	I think
the name is THORSON,. is not it?

of Chief Justice Laskin at page 592.	in that latter case, in particular in the judgment
The decision in THORSON was a decision of the court delivered by the Chief Justice. He, in
BOROWSKI's case,dissented from what he say as
an extension of that approach in relation to a
challenge to an exculpation provision in a criminal
statute dealing with abortion and it is cl~ar
from His Honour's judgment that he would not have
applied the THORSON principle so far. But the
principle which the court accepted in THORSON,
and which the whole of the court accepted in BOROWSKI, is stated by His Honour at page 592.
His Honour notes, in the middle of the page:

House of Lords.	May I take the Court briefly to
the INLAND REVENUE COMMISSIONERS AND THE NATIONAL

Lord Roskill at page 662H.	But while there is
a different - - -

(1951) 84 CLR.	But that did not relate to anything
to do with the wool taxes.	I am not familiar with

it.	In my submission, there is no submission
directly against me.	I concede that there are

may refer, in fact, to	11 a taxpayer or citizen"
in his judgment.

a question as to whether the plaintiff has	standing -
has a sufficient locus?

tf?.rms of a discretionary power, Your Honour.	The
House of Lords play down the question of
discretionary power and say that there is a legal

why he as the representative of the public interest	in that State should have any greater interest than
the total of the people in the State and the people
were citizens of the United States as a whole rather
than of the State.

it much better than I did.	I was seeking to adopt
that.	I think I said that there are comments in

ONUS V ALCOA defines the legal principle.	Now,
the question is:	do you accept that, or not?

His Honour had referred below to the FLEET STREET
CASUALS case.	Your Honours, the other decision which

Authority as a distinguishing characteristic.	Now,
the only passage of those which have been cited,

which I would wish to read, is the well-known remarks	of Lord Justice Fry in RE DUNN 1 S TRADE-MARKS,
41 Ch D 455 where His Lordship said that he could
not help regarding Mr Eno's attempt to get the
words "Fruits Salts" as a trade mark:

Act fail on all accounts.	Our submission, summarized
in 4(d) - - -

DEANE J:	Mr Solicitor, do we not, and probably you are not the person I should have asked, but do we not have
to look at these a little more closely if your general submission is accepted? I mean what would
you say, for example, about 22(1)(d)?

application to strike out.	That was referred to by
my learned friend Mr Basten, so reported	_

So they are added to the list which	is in paragraph ( i)
of paragraph (d) of the Act itself.	Returning to the
pleading, paragraphs 36 to 38 plead	relevant parts
of section 22 and section 23.

not a permissible ground then reasons could have	there was a mechanism for review, so if that were
been obtained if additional reasons were required and the matter could have been dealt with there.
Your Honour, perhaps to point at the expression, although we find its meaning elusive, when one looks
at the letter application on page 17, the last
sentence is:

memorandum and look at the subscribers.	And if
I could take the Court briefly to that.	They are

in the preamble to the various objects.	Paragraph 3
of the memorandum:

within the executive power.	So that our primary
submission is that the Authority and its objects

on pages 101 to 104.	I do not think there is any
need to take Your Honours to that.	One pages45 and 46

some description of that.	On page 77 there is
a statement of income and expenditure.	The other