Constitutional Law (Cth)—Powers of Commonwealth Executive - Australian Bicentenary—Commemoration—Public authority - Incorporation in Australian Capital Territory—Primary object to plan and implement celebrations—Subsequent Act requiring Authority to promote objects in accordance with policy directives of Minister - Validity—Powers of Commonwealth Parliament—Trade marks—Trading and financial corporations—External affairs—Convention Relating to International Exhibitions—Laws for government of territory - Incidental power—Appropriation of funds for purposes of Authority - Validity—Prohibition of use of symbols and expressions connected with celebrations without Authority's consent—The Constitution (62 &63 Vict c. 12), s. 51(xvii), (xx), (xxix), (xxxix), 61, 81, 122 - Australian Bicentennial Authority Act 1980 (Cth), ss. 6, 10, 22, 23.
Decisions
MASON C.J., DEANE AND GAUDRON JJ. The defendants' demurrer to the plaintiffs' amended statement of claim raises for determination questions as to the validity of the Australian Bicentennial Authority Act 1980 (Cth) ("the Act"). The Act is a law relating to the Australian Bicentennial Authority ("the Authority") which is a company limited by guarantee, registered under that name under the Companies Ordinance 1962 (A.C.T.). The plaintiffs' challenge to the validity of the Act centres on ss.22 and 23 of the Act. The plaintiffs do not seek a declaration of invalidity of the other provisions of the Act unless they succeed in their attack on the validity of ss.22 and 23.
2. The Act itself does not state the object and functions of the Authority. However, cl.3 of the memorandum of association of the Authority, which is set out in par.20 of the amended statement of claim, provides: "The primary object for which the Authority is established is to formulate, to plan, to develop, to promote, to co-ordinate 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 and to that end, but without limiting the generality thereof, the Authority shall have the following associated objects (1) to make arrangements, in relation to and for
the purposes of the carrying out of its primary object, with any of the following Governments - the Government of the Commonwealth, a State or Territory of Australia;
..."
It is unnecessary to set out the succeeding paragraphs of cl.3 because the plaintiffs' case is that the commemoration of the Bicentenary, rather than the associated objects as such, is beyond the powers of the Commonwealth.
3. Section 6 of the Act requires the Authority to promote its objects and exercise its powers in accordance with such directions, if any, with respect to the policies to be followed by it as may be given to its Board of Directors by the Minister in writing. Section 10 provides: "(1) There are payable to the Authority such moneys as are appropriated by the Parliament for the purposes…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Davis v the Commonwealth [1988] HCA 63
Case
[1988] HCA 63
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the constitutional validity of certain provisions of the *Public Service Act 1922* (Cth) in *Davis v The Commonwealth*. The applicant, Mr Davis, challenged the power of the Commonwealth to legislate with respect to the public service of the Australian Capital Territory, arguing that such power was not conferred by the Constitution. The dispute centred on the extent of the Commonwealth's legislative authority in relation to its territories and the nature of the executive power.
The central legal question before the Court was whether the Commonwealth Parliament possessed the constitutional power to enact legislation that regulated the public service of the Australian Capital Territory, particularly in circumstances where that legislation purported to bind the executive government of the Territory. This involved an examination of the scope of section 122 of the Constitution, which grants the Parliament power to make laws for the government of any territory surrendered by any State and accepted by the Commonwealth, and the relationship between this power and the executive power of the Commonwealth.
The Court reasoned that section 122 of the Constitution conferred plenary power on the Commonwealth Parliament to legislate for the government of the Australian Capital Territory. This power was not limited by the fact that the Territory was also the seat of government. The Court held that the executive power of the Commonwealth, as derived from section 61 of the Constitution, extended to the control and management of the Commonwealth Public Service, and that this power could be exercised in relation to territories. Consequently, the Commonwealth Parliament had the constitutional authority to legislate for the public service of the Australian Capital Territory, including provisions that bound the executive government of the Territory. The Court found the impugned provisions of the *Public Service Act 1922* to be a valid exercise of this legislative power.