R v Phillips

[1970] HCA 50

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

THE QUEEN v. PHILLIPS

(1970) 125 CLR 93

30 November 1970

Constitutional Law (Cth)

Constitutional Law (Cth)—Places acquired by Commonwealth for public purposes—Exclusive legislative power of Commonwealth Parliament—Extent of power—State law made before place acquired—Whether continued in operation—The Constitution (63 &64 Vict. c. 12), s. 52 (i.)—Criminal Code Act, 1913 (W.A.)—Judiciary Act 1903-1969 (Cth), s. 40A.

Decisions

November 30.
The following written judgments were delivered:-
BARWICK C.J. The Court decided in Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 that s. 52(i.) of the Australian Constitution denies legislative power to the States to enact laws which will operate to regulate or control the conduct of persons - in that acquired by the Commonwealth for public purposes. In reaching that conclusion, the Court decided that the denial of legislative power to the States by s. 52(i.) was not limited to the making of laws expressed specifically to operate in the place acquired by the Commonwealth: the generality of the State law, as a law regulating or controlling the conduct of persons throughout the area within the territorial limits of the State will not save it from invalidity in so far as it would operate in the place which had been acquired by the Commonwealth. The Court rejected the view that the legislative power of the Commonwealth granted by s. 52(i.) was limited to the making of laws with respect to the seat of government, as such, or to places acquired as such or as places. (at p97)

2. The question whether a State Act regulating the conduct of persons generally in the area within the territorial limits of the State continues to operate in a place which is acquired by the Commonwealth for public purposes subsequent to its enactment was not decided by the Court. That question now arises for our decision. (at p97)

3. In a criminal prosecution launched in the District Court of Western Australia questions were referred, pursuant to s. 49 of the District Court of Western Australia Act, 1969-1970 (W.A.) for the consideration of the Full Court of the Supreme Court of Western Australia, sitting as a Court of Criminal Appeal. The questions so referred involved the limits inter se of the constitutional powers of the Commonwealth and those of a State. Accordingly the proceeding before the Supreme Court of Western Australia, by force of s. 40A of the Judiciary Act 1903-1969 (Cth), was removed into this Court. (at p97)

4. The accused was charged on indictment with having committed at Bullsbrook in the State of Western Australia an act of gross indecency with a male person contrary to the provisions of s. 184 of the Criminal Code Act, 1913 (W.A.). He demurred to the indictment, on the ground that the indictment did "not disclose an offence for the reason that the place where the alleged offence was committed was a place acquired by the Commonwealth of Australia for public purposes and that in consequence of s. 52(i.) of the Commonwealth Constitution the Criminal Code of Western Australia had no operation therein". (at p98)

5. By the papers transmitted by the Supreme Court to this Court, it is conceded by the prosecution that the place at Bullsbrook where the act charged is claimed to have been done is the Pearce Aerodrome, a place acquired by the Commonwealth in 1935 under the provisions of the Lands Acquisition Act 1906 (Cth) for the purposes of an air force base. The demurrer thus raises the question whether the relevant provisions of the Criminal Code Act, 1913 remain operative in relation to conduct of persons on the Pearce Aerodrome, Perth. (at p98)

6. Prior to the enactment of the Criminal Law Amendment Act of 1892 of the colony of Western Australia, the criminal law of the colony so far as presently relevant provided that an indecent assault upon a person should be an offence but did not make an act of indecency between consenting males an offence. However, by s. 14 of the said Act, it was provided that "Any male person who, in public or private, commits . . . any act of gross indecency with another person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable . . . to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without whipping". (at p98)

7. This provision remained operative in the colony at the date the colony became a State of the Commonwealth under the Constitution of the Commonwealth of Australia. Accordingly, the provision continued in force in the State of Western Australia. (at p98)

8. However, by s. 3(2) of the Criminal Code Act, 1902 of the State of Western Australia, the whole of the Criminal Law Amendment Act, 1892, was repealed. Section 184 of the Criminal Code enacted by the Criminal Code Act is as follows:

"184. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years, with or without whipping." (at p98)

9. In 1913 the legislature of Western Australia enacted the Criminal Code Compilation Act, 1913, which by s. 2 provided that "The Acts and parts of an Act set out in Appendix 'A' hereto are hereby repealed, and the compiled Act set forth in Appendix 'B' hereto is hereby enacted under the title of the Criminal Code Act, 1913". The Criminal Code Act, 1902, was included in Appendix "A" as a repealed Act. Section 184 of the Criminal Code Act, 1913, provided for an offence in identical terms with those of s. 184 of the Criminal Code of 1902. (at p99)

10. In R. v. Bamford (1901) 1 SR (NSW) 337 the Supreme Court of New South Wales decided that the commission of an act proscribed by a law of the colony of New South Wales in a place acquired by the Commonwealth for public purposes was an offence because, but only because, s. 108 of the Constitution had continued the operation in the State of the colonial law in force at the time the colony of New South Wales became a State of the Commonwealth. But it was not argued in this case that any relevant law of the colony of Western Australia remained in force in the State of Western Australia in 1935 by virtue of s. 108. It was rightly recognized that the repeal of the colonial law - the Criminal Law Amendment Act, 1892 - had terminated any relevant operation of s. 108, even if the substantial provisions of the colonial law had been re-enacted by the laws of the State. But it may be observed in passing that in any case the terms of the colonial law and those of the Criminal Codes of the State were not identical. (at p99)

11. Having regard to the Court's decision in Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 it is clear that the Commonwealth could validly enact a section in terms of s. 184 of the Criminal Code of Western Australia dealing with such conduct between consenting males in a place or in places acquired by the Commonwealth for public purposes. That would be a law regulating the conduct of persons in that place or in those places and a law with respect to that place or those places within the meaning and operation of s. 52(i.) of the Constitution. (at p99)

12. The question then arises as to the effect of the exclusiveness of the grant of legislative power to the Commonwealth by s. 52(i.). I should first observe that we are here dealing with a Constitution which distributes legislative power between legislatures and in particular with a section assigning exclusive legislative power to the legislature of the Commonwealth. If "vesting" is the right word to describe its work in the distribution of such powers, the Constitution "vested" the exclusive power of legislation with respect to places acquired in the Commonwealth from its inception. State powers of legislation were confirmed subject to the Constitution: and therefore were throughout subject to the distribution of legislative power effected thereby. However, the occasion for the exclusive legislative power to become effective is the acquisition by the Commonwealth for public purposes of a place within a State. But the case is not for that reason akin, in my opinion, to the cession of territory by one sovereign power to another: or to that of the conquest of territory in the hands of one sovereign power by another power or to the surrender of territory by a State and its acceptance by the Commonwealth. The distribution of legislative power is derived, and the grant of exclusive legislative power is derived, from the Constitution itself. It, upon its proper construction, determines the relevant consequence of the acquisition of a place by the Commonwealth. Thus, in my opinion, nothing said in Buchanan v. The Commonwealth (1913) 16 CLR 315 even if the obiter dicta in the case are acceptable in relation to a transfer of political dominion, or in Sammut v. Strickland (1938) AC 678, at p 701 , is relevant to the resolution of the present matter. (at p100)

13. Before expressing my opinion as to the effect in a Constitution distributing legislative power of the grant of an exclusive power of legislation to one legislature, I should advert to a submission made on behalf of the accused, namely, that the effect of the acquistion by the Commonwealth of a place for public purposes is to remove that place from the territory of the State in which it physically exists and to make it a territory, or in some sense the equivalent of a territory, of the Commonwealth. In my opinion, the grant of exclusive legislative power, even if it be regarded, as I think it should, as the grant of exclusive jurisdiction, does not require or involve any transfer of so-called territorial sovereignty or political dominion from the State to the Commonwealth on the acquisition by the Commonwealth of a place for a public purpose. It must be remembered when considering in this connexion decisions of the Supreme Court of the United States upon the Constitution of that country that the several States which were parties to the Union derived their legislative authority from the possession of territory or at least did so indirectly if their legislative power is regarded as directly derived from the consent of the people resident in that territory. In the case of the Australian colonies their legislative authority was not derived directly or indirectly from the possession of territory but from statutes of the Imperial legislature. It is understandable that in the American context an exclusive power of legislation consensually conceded by the State to the Congress over a place should be related to the acquisition of territory and that the possession of such a power should be regarded as in some sense based on territorial sovereignty or dominion. The need for and the presence of the consent of the State to the purchase of a place falling within art. 1, s. 8, cl. 17 had significance in that connexion. But in the construction of a Constitution deriving from Imperial legislation there is, in my opinion, no room for such a concept. The existence of legislative power without territorial sovereignty was the situation in which the colonies had been placed. The grant of exclusive legislative power by Imperial statute with respect to a place sufficed without any need to support or underpin the power by a transfer of territorial sovereignty or dominion of and over the place acquired. I do not think that Isaacs J. when using the word "sovereignty" in The Commonwealth v. New South Wales (1923) 33 CLR 1 , meant more than that the Commonwealth became the sole source of statutory law operating in the place acquired in the sense to which I shall later refer. Such a view would be consistent with what his Honour said in Pirrie v. McFarlane (1925) 36 CLR 170, at pp 191, 192 . In my opinion, he did not mean to suggest a transfer of territorial sovereignty, something which the colonies did not at any time possess. But if, contrary to my own opinion, in The Commonwealth v. New South Wales (1923) 33 CLR 1 he did mean that the place acquired was by its acquisition excised from the area within the territorial limits of the State and made extraterritorial to the State, I would respectfully disagree with his view. (at p101)

14. There remains the question of the effect in the constitutional distribution of legislative power of the grant of exclusive power to make laws as provided by s. 52(i.). A grant of a concurrent legislative power in the terms of that section in a Constitution containing s. 109 would have ensured as it seems to me that laws made by the Commonwealth with respect to a place acquired by the Commonwealth for public purposes would by virtue of that section have supplanted State laws whenever made which might otherwise have operated in that place. Being laws with respect to the place there could be no question but that those laws of the Commonwealth would necessarily be inconsistent with any State law purporting to operate in that place. But the legislative power granted by s. 52(i.) is not a concurrent power: it is an exclusive power expressly so granted. In my opinion, such a power is not merely a power to pass laws with respect to a place acquired for public purposes from and after that acquisition as would be the case if a concurrent power were granted. To so regard the power, in my opinion, gives insufficient effect to the exclusiveness of the granted power. Nor should the exclusiveness of the legislative power be regarded as merely preventing the States from passing laws to operate in places already acquired by the Commonwealth. (at p102)

15. It is of course true that the exclusive legislative power of the Commonwealth vested, as I have said, in it by the Constitution, is not effective till the acquisition for public purposes has taken place, a circumstance which may bear on the inapplicability of s. 108 in this case in addition to the matters to which I have already adverted. But, in my opinion, what becomes fully effective upon the acquisition, and as from its date, is not merely a power thereafter to pass laws with respect to the place acquired; what is attracted, in my opinion, as from that date is the exclusive legislative authority for all laws to operate in that place. At that moment, by virtue of the exclusiveness of the power given to the Commonwealth, the States, in my opinion, lose all legislative power, not merely the power to make a new law but the legislative power which could support the continued operation of an existing law in the place acquired. Cf. Pirrie v. McFarlane, per Isaacs J. (1925) 36 CLR, at pp 191, 192 . Statutory provisions in the constitutional setting of the Australian Constitution derive their validity from the existence and, in my opinion, the continued existence of legislative power to enact them. Where under our Constitution a law has continued to operate after the legislature which made it has lost relevant legislative power, it has done so, not by virtue of the legislative power formerly existing but by the express provision of the Constitution itself. That was the situation in relation to the laws of the colonies relating to matters within Commonwealth legislative power (s. 108). (at p102)

16. Further, as I have indicated, all State laws are subject to the Constitution: that must mean relevantly that they are made subject to the exclusive power of legislation which the Commonwealth has and upon the acquisition may exercise with respect to all places acquired by it for public purposes. (at p102)

17. There was of course no need for any provision comparable to s. 108 to be made in relation to existing State laws and places acquired by the Commonwealth. To the extent that s. 108 does not bridge the transition from colonial legislative power to Commonwealth legislative power, the Commonwealth has always been in the position to enact, in anticipation of acquisition, laws to operate in the place acquired upon its acquisition. The so-called chaotic condition which it was said would result from the construction of the Constitution which I have preferred and upon which much argument was expended in this case was clearly not a necessary result of that construction. In expressing the view that the exclusive power of legislation becomes fully effective by the acquisition, I do not mean to exclude the ability by the Commonwealth to pass such anticipatory laws. In my opinion, the Commonwealth could pass laws to operate generally in places already acquired and in places yet to be acquired and, in the latter case, to operate as and when the acquisition takes place. But, of course, by their very nature such laws as to places not yet acquired, not being operative, will not before acquisition affect State laws. (at p103)

18. Once the place is acquired and as and from the date of its acquisition, the only statutory laws which, in my opinion, can validly operate to regulate or control the conduct of persons in the place acquired are laws which derive their authority from the Commonwealth. In other words, no statutory provisions operating to regulate or control the conduct of persons in that place can have validity unless they emanate directly or indirectly from the Parliament, the possessor of the relevant exclusive legislative power. (at p103)

19. It is worth observing more particularly than I have so far indicated that s. 108 of the Constitution appears to have been inserted in the Constitution upon the footing that the creation of legislative power in the Commonwealth by ss. 51 and 52 of the Constitution destroyed the efficacy of all existing colonial laws in respect of matters falling under those sections of the Constitution: hence the need to provide expressly for the continued operation in the States of colonial laws relating to matters within Commonwealth power until the exercise of the legislative power of the Commonwealth or until their repeal by the States to whom it was realized it was necessary expressly to give a power of amend and of repeal. (at p103)

20. If, contrary to the view I have expressed, laws made by the legislatures of the States were to continue to operate in places acquired by the Commonwealth, clearly those legislatures could neither amend nor repeal them: nor could the Commonwealth. It could merely supersede such laws by an inconsistent law, as it might have done if its relevant legislative power had merely been concurrent. But, I should add, I do not in any respect found myself on that circumstance nor upon any of the other inconveniences which I think would arise if that contrary view were adopted; for example, upon that view the laws operating in places acquired by the Commonwealth may be different as to the same circumstances because the places were acquired at different times when the relevant State laws were different in their provision: or, the law may be different in the one place because parts of it were acquired at different times. (at p104)

21. In my opinion, the termination of the operation of State laws in places acquired by the Commonwealth was effected by the Constitution itself by the grant to the Commonwealth of exclusive legislative power: it was effected by s. 52(i.) upon the true construction of that provision. For the reasons I have given, upon the acquisition by the Commonwealth of the place now known as the Pearce Aerodrome, Perth, in the year 1935, s. 184 of the Criminal Code of 1913, deriving its authority as it does from the legislature of Western Australia, ceased to have any operation in that place because of the existence in the Commonwealth of exclusive legislative power with respect to that place. Accordingly, the accused's demurrer to the indictment should be upheld and the first question asked in the reference by the District Court of Western Australia should be answered in the negative. (at p104)

22. The accused as well as demurring to the indictment raised an objection to the jurisdiction of the District Court that that Court "had no jurisdiction to try him for the offence on the ground that the place where the alleged offence was committed was a place acquired by the Commonwealth of Australia for public purposes and that in consequence of s. 52(i.) of the Commonwealth Constitution the District Court of Western Australia Act by which the Court was constituted and its jurisdiction was prescribed was of no force or effect in relation to offences alleged to have occurred therein". (at p104)

23. This objection gave rise to the second question asked of the Supreme Court, namely:

"(b) If the answer to question (a) is 'Yes', has this Court jurisdiction to try the accused for the offence alleged in the indictment?" (at p104)

24. Having regard to my opinion that the first question should be answered in the negative, the second question does not arise. (at p104)

McTIERNAN J. My conclusion is that s. 184 of the Criminal Code of Western Australia did not remain in force within the area referred to in the indictment after the acquisition of the area by the Commonwealth. The acquisition was sanctioned by s. 51 (xxxi.) of the Constitution. The area therefore became subject to the exclusive power which the Constitution, by s. 52(i.), gives to Parliament to legislate with respect to a place acquired by the Commonwealth for public purposes: Worthing v. Rowell and Muston Pty. Ltd. (1973) 123 CLR 89 . (at p105)

2. The Criminal Code is of general application within the boundaries of Western Australia (see s. 2 of the Criminal Code Act, No. 28 of 1913). The terms in which the power given by s. 52(i.) are expressed are clearly wide enough to authorize Parliament to provide for the punishment of all crimes committed within a place acquired by the Commonwealth for public purposes. My own view expressed in the above-cited case was that the exact nature of a State Act of general application is not a law "with respect to" a part of the State. The area composing the Pearce air force base is a part of the territory of Western Australia. But the decision of the Court in the above-cited case affords a precedent which I should not disregard. It was decided that the Regulations there in question, although of general application according to their tenor, did not apply within the air force base at Richmond, because it was a place with respect to which the Parliament of the Commonwealth had exclusive power of legislation, and the Regulations, in so far as they purported to apply in the base, were within the ambit of that power and it was beyond the power of the State to make them binding therein. (at p105)

3. The crucial question in the present case is whether s. 184 of the Criminal Code remained in force within the area constituting the Pearce base after the acquisition of the land composing it. It seems to me that if the section did remain in force its exact nature would be a law "with respect to" that place: Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 . For that reason the application of the section within the area, after acquisition, could not be supported by the constitutional powers of the State of Western Australia. (at p105)

4. Section 108 of the Constitution is not in my opinion capable of sustaining s. 184, for present purposes, having regard to the course of legislation with respect to the punishment of indecent practices. Furthermore, the Constitution does not contain anything, express or implied, to support the hypothesis that, since the acquisition of the area constituting the present place, s. 184 was rendered capable of remaining in force in the area as a law of the State of Western Australia. (at p105)

5. Inaction in providing by a federal law for the punishment of the commission within the Pearce base of the act charged against the accused cannot be used to support such an hypothesis. Any consequences of the inaction are not matters for consideration by the Court in determining whether the accused can be prosecuted on the indictment now in question. (at p106)

6. I would answer the first question - No. It is therefore not necessary to enter upon the second question. (at p106)

MENZIES J. Phillips was indicted in the District Court of Western Australia in Perth upon a charge of having committed an act of gross indecency contrary to s. 184 of the Criminal Code Act, 1913 (W.A.). The accused demurred to the indictment on the ground that the place where the offence was alleged to have been committed - i.e. the Pearce Royal Australian Air Force base at Bullsbrook in Western Australia - was a place which had been acquired by the Commonwealth of Australia for public purposes, and that, because of s. 52(i.) of the Commonwealth Constitution, the Criminal Code of Western Australia had no operation in the base. The accused also pleaded as follows: "that the Court had no jurisdiction to try him for the offence on the ground that the place where the alleged offence was committed was a place acquired by the Commonwealth of Australia for public purposes and that in consequence of s. 52(i.) of the Commonwealth Constitution the District Court of Western Australia Act by which the Court was constituted and its jurisdiction was prescribed was of no force or effect in relation to offences alleged to have occurred therein." (at p106)

2. When the trial came on the learned District Court judge, exercising his power under s. 49 of the District Court of Western Australia Act, 1969-1970 (W.A.), reserved for the consideration of the Full Court of the Supreme Court of Western Australia sitting as a Court of Criminal Appeal the following points of law, namely:

"(a) Does the indictment disclose an offence under the laws of Western Australia?

(b) If the answer to question (a) is 'Yes', has this Court jurisdiction to try the accused for the offence alleged in the indictment?" (at p106)

3. When the matter came before the Full Court, that court, having come to the conclusion that the matter raised questions inter se as to the limits of the constitutional powers of the Commonwealth and of the State of Western Australia, decided to proceed no further. The questions reserved as aforesaid are, therefore, now before this Court pursuant to s. 40A of the Judiciary Act 1903- 1969 (Cth). (at p106)

4. It is common ground that the Pearce base was, on 9th May 1935, compulsorily acquired by the Commonwealth under the powers conferred by the Lands Acquisition Act 1906 (Cth) from the owners thereof and has, since that time, been held and used by the R.A.A.F. as a flying base. The history of s. 184 of the Criminal Code is as follows. By s. 14 of the Criminal Law Amendment Act, 1892, a section similar to, but not the same as, s. 184 of the Criminal Code was introduced into the criminal law of Western Australia. In 1902 the whole of the Criminal Law Amendment Act 1892 was repealed by an Act 1 &2 Edw. VII No. 14, an Act to establish a code of criminal law. Section 184 of the code so introduced corresponded exactly with s. 184 of the Criminal Code as it now stands. In 1913, 1 &2 Edw. VII No. 14 was repealed by Act No. 28 of 1913. This Act, the Criminal Code Act Compilation Act, 1913, enacted the Criminal Code Act, 1913, which, as amended, constitutes the current Criminal Code. (at p107)

5. What I have already stated shows that in 1935, when the Pearce base was acquired by the Commonwealth, s. 184 of the Criminal Code was in force; that it had come into force in 1913 in replacement of an identical section in the Act of 1902; that it was similar to, but not the same as, the section first introduced in 1892 and repealed in 1902. (at p107)

6. It follows, therefore, that there is no way of concluding that s. 184 of the Criminal Code was in force in the colony of Western Australia when it became a State on 1st January 1901. (at p107)

7. Furthermore, until its acquisition of the Pearce air base in 1935, the Commonwealth Parliament had no power to make laws for the peace, order and good government of the Commonwealth with respect to the land which now constitutes the Pearce base. (at p107)

8. From the two matters which I have just stated, it follows that the questions now before the Court must be decided without reliance upon the effect of s. 108 of the Commonwealth Constitution which is concerned with the continuation of laws (1) in force in a colony at the time of its becoming a State, and (2) which relate to a matter within the powers of the Parliament of the Commonwealth at the time when the colony becomes a State. As will be seen later, however, s. 108 of the Constitution is, in my opinion, of significant importance in the decision of this case. (at p107)

9. In Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 , this Court decided that s. 52(i.) confers upon the Commonwealth Parliament exclusive power to make a law regulating the conduct of persons engaged in building operations in a place which had been acquired by the Commonwealth for public purposes. In so deciding, the Court rejected the contention that the power conferred by s. 52(i.) does not extend beyond the making of laws on the subject of a place so acquired as a place, and decided that s. 52(i.) does authorize a law regulating conduct or activity upon such a place. Accordingly, a State law, regulating building operations throughout the territorial limits of New South Wales, was held to have no application in a place within those limits which had been acquired by the Commonwealth before the date of the making of the State law. (at p108)

10. The question which is now before the Court is not precisely the same as that decided in the earlier case because, as already stated, s. 184 was in force when the Commonwealth acquired the Pearce base. To my mind, however, that difference affords no sound basis for distinguishing the earlier decision. That decision depended upon a construction of s. 52(i.) which accorded to the Parliament of the Commonwealth complete and exclusive legislative power with respect to places acquired by the Commonwealth for public purposes, so that, upon such an acquisition, there was no longer room for State legislative power with respect to such a place. The choice now to be made is between (1) treating Commonwealth places as subject to State laws, continuing in force but frozen so that they cannot be varied or repealed, co-existing with any Commonwealth laws made with respect to the places so acquired so that, to a limited and variable extent, depending upon the date of acquisition, Commonwealth places would remain subject to some State legislation; or (2) treating the grant of exclusive legislative power to the Commonwealth Parliament as removing the power basis from State laws hitherto applying with respect to the places, so that such laws no longer apply. (at p108)

11. In my opinion it is the latter alternative which the Constitution requires us to adopt. (at p108)

12. Such an understanding of the effect of s. 52(i.), accords, I think, with the basis upon which, it seems to me, s. 108 was included in the Commonwealth Constitution. The explanation of the first part of that section seems to be a recognition that, without it, colonial laws upon a matter within Commonwealth legislative power - and particularly exclusive Commonwealth legislative power - would cease to operate upon the colony's becoming a State. The second part of s. 108 is not necessary with respect to colonial laws relating to a matter not within the Commonwealth's exclusive legislative power and does not, I think, apply to them. Such colonial laws, having become the laws of a State, continue in force and may be altered or repealed at any time, whether or not "provision is made in that behalf by the Parliament of the Commonwealth". It is s. 109 of the Constitution that applies when the Commonwealth makes a law which is inconsistent with a State law upon a matter within its legislative power. This section does not deal with legislative power at all; it resolves cases of conflict of valid State and Commonwealth laws in favour of the Commonwealth law to the extent of any inconsistency but no further. The legislative power of a State does not disappear when some provision is made by the Commonwealth Parliament upon some matter within State legislative power. A provision such as s. 109 is unnecessary, and would indeed be inappropriate, with regard to a State law upon a matter outside the legislative power of a State Parliament. Section 108 therefore continues the operation of colonial laws in the territory which ceases to be a colony and becomes a State, and confers a limited legislative power upon the Parliament of the State; viz. to alter or repeal colonial laws upon matters falling within the exclusive legislative power of the Commonwealth "until provision is made in that behalf by the Parliament of the Commonwealth". To read the latter part of s. 108 as not applying to colonial laws upon matters which have fallen within the exclusive legislative power of the Commonwealth would not only impose an unwarranted restriction upon the language used; it would, in effect, deny the provision any effect, for s. 109 provides, and I think provides exhaustively, for laws of a State that are inconsistent with Commonwealth laws. It seems, therefore, that although s. 108 has no direct application here, its provisions do indicate clearly that, without it, colonial laws upon a matter within Commonwealth exclusive legislative power would not have continued in force in the territory of a colony once it became a State. In other words, it shows that it requires express constitutional authority to maintain, as the laws of a State, laws in force at the time when the power to make such laws becomes exclusive to the Commonwealth Parliament. It appears to me a most important consideration bearing upon the solution of the present problem that the Constitution deals separately with (1) the only State laws there can be in respect of matters within the exclusive legislative power of the Commonwealth, viz. colonial laws continued in force, and (2) valid State laws which are actually inconsistent with Commonwealth laws; and that the Constitution contains no express provision with respect to State laws on matters within the exclusive power of the Commonwealth Parliament which are not colonial laws continued in force by virtue of s. 108. The fate of such laws is to be resolved by determining what is the effect of granting exclusive power to the Commonwealth. In Pirrie v. McFarlane (1925) 36 CLR, at pp 191, 192 , Isaacs J. stated this effect as follows:

"Where . . . a power . . . is expressly, by ss. 106 and 107, eliminated from State Constitutions, because made exclusive by s. 52 . . . its control is necessarily by force of the very words of the Constitution placed outside the ambit of the State Constitutions and beyond any power of the State to affect it. No State Act can operate on that extraneous field." (at p110)

13. A true view of the effect of s. 52(i.) was taken in the Seat of Government Acceptance Act 1909 (Cth). It was provided by s. 6(1) that "subject to this Act all laws in force in the Territory immediately before the proclaimed day shall, so far as applicable, continue in force until other provision is made". Here there was recognition that a law of the Commonwealth was necessary for the continued operation of earlier State laws. They did not continue in force by virtue of the legislative power of the Parliament of New South Wales once that power no longer operated within the territory. (at p110)

14. It is to be observed too that in cases of constitutional change it is the practice to make constitutional provision expressly for the continuance of existing laws. See Halsbury's Laws of England, 3rd ed., vol. 5, par. 1478. (at p110)

15. In Worthing's Case (1970) 123 CLR, at p 120 , I said:

"If, therefore, s. 52, in conferring power to make laws 'with respect to' places, does confer a power upon the Parliament of the Commonwealth to make any law to operate in such places, it follows that, subject to s. 108, no power remains in the Parliament of the State to make any law to operate in such places. The operation of all State laws in the seat of government and in all other places referred to in s. 52(i.) is, therefore, completely excluded."

Upon reflection, although it seems to me that this statement unfortunately went beyond what was necessary for the decision of that case and so lacks authority, it does state what, upon further argument and further consideration, I believe to be the effect of s. 52(i.) in relation to State laws; viz. that a law made by a State Parliament, and operating in a place which is subsequently subtracted from the scope of State legislative power by virtue of acquisition by the Commonwealth, is no longer supported by that power and so its operation, with respect to that place, ceases. (at p110)

16. In opposing this conclusion, reference was made by counsel to the old-established principle that laws in force in a territory, ceded by one sovereign to another, continue in force after the cession until altered by the new sovereign. In my opinion this principle is beside the point here. There is no change of sovereignty when the Commonwealth acquires a place within the territorial limits of a State; there is no cession of territory. Where there is such an acquisition, what is acquired by the Commonwealth remains within the territorial limits of the State but it is no longer within its legislative power because it falls within the exclusive legislative power of the Commonwealth Parliament. Here we are concerned merely with a constitutional division of power. Moreover, laws in force in a territory which has been conquered or ceded, remain in force after conquest or cession, not by virtue of inherent vitality, but by virtue of the will of the new sovereign. This appears clearly enough by the qualification adopted by English law which limits the continued operation of earlier laws to laws of a conquered or ceded country which are not "contrary to our religion or enact anything that is malum in se". See Blackstone Commentaries, vol. 1, p. 107; Calvin's Case (1608) 7 Co Rep la, at p 18a (77 ER 377, at p 398) , and par. 3 of the memorandum of 9th August 1722 appearing at the foot of that page. There is nothing contrary to this view in the observations made in Buchanan v. The Commonwealth (1913) 16 CLR, at p 315 . (at p111)

17. Consequently I accept the argument of counsel for the Commonwealth in this case that the Court, consistently with its decision in Worthing's Case (1970) 123 CLR 89 should affirm that the Commonwealth Parliament, by virtue of s. 52(i.), becomes the sole law-making authority for places acquired by the Commonwealth for public purposes, with the consequence that no State laws operate with respect to such places. Any other decision would, I think, treat Commonwealth legislative power under s. 52(i.) as to some extent concurrent, rather than as wholly exclusive, with respect to places acquired by the Commonwealth for public purposes. (at p111)

18. Having reached the conclusion that Phillips could not be convicted of an offence under s. 184 of the Criminal Code there is no need for me to go further and to consider the second question. (at p111)

19. In my opinion the first question submitted by the learned District Court judge should be answered "No". (at p111)

WINDEYER J. In Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 I said that in my view the acquisition by the Commonwealth of a place for public purposes did not mean that the place was made into a lawless wilderness until the Commonwealth Parliament should bring law there. In that case the law which it was sought to invoke was a New South Wales statute enacted after the place in question was acquired by the Commonwealth. I was a party to the decision that that statute was, within the meaning of s. 52 of the Constitution, a law with respect to the place; and that it had no operation there because it was enacted by the State Parliament after the Parliament of the Commonwealth had gained exclusive power to make laws with respect to the place. Whether laws of the State in force before the place was acquired by the Commonwealth were abrogated upon its acquisition was not directly in question in that case. The opinion I expressed was thus merely by the way there. But having reconsidered the matter I remain firmly of the same opinion. I shall explain my reasons for my conclusion. (at p112)

2. When the Commonwealth acquires, for public purposes, a place that is within a State, that place does not cease to be part of the State. The Commonwealth Parliament's "exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . all places acquired by the Commonwealth for public purposes" under s. 52 is, to my mind, a very different power from that conferred by the provisions of s. 111. That section provides that any part of a State surrendered to the Commonwealth, "upon such surrender, and the acceptance thereof by the Commonwealth . . . shall become subject to the exclusive jurisdiction of the Commonwealth". The phrase "exclusive jurisdiction of the Commonwealth" here means that the Commonwealth becomes the sovereign authority, in a full sense, of the territory surrendered to it. Again, the exclusive power of making laws, pursuant to s. 52, is very different from the power given by s. 122, expressed as: "The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth." In short, a place within a State that is acquired by the Commonwealth for public purposes is not like a territory surrendered to the Commonwealth by the State. A place acquired becomes, it has been said, vested in the Commonwealth by way of proprietorship rather than sovereignty: and that is a convenient description of the fundamental distrinction between such places and Commonwealth territories: but the description must not be allowed to beg the question. Places within a State that the Commonwealth holds for its purposes it holds not as a private landowner but as the Commonwealth of Australia. The effect of s. 52 is not to be read from labels. (at p112)

3. American doctrine concerning the power of Congress "to exercise exclusive legislation in all cases whatsoever" over places referred to in cl. 17 of s. 8 of the Constitution of the United States can be instructively compared, and contrasted, with s. 52 of our Constitution. I shall not repeat what I said in Worthing's Case (1970) 123 CLR 89 of the consequences that flow from the different juristic origins of the two Constitutions. It is enough to notice here that in America it was for a long time debatable whether a State legislature when ceding a place to the jurisdiction of the United States could effectively reserve to itself any authority or jurisdiction there. That question seems to have been answered affirmatively, but with some qualifications, by the Supreme Court in James v. Dravo Contracting Co. (1937) 302 US 134 (82 Law Ed 155) . There have too been varying views as to whether the acquisition of a place by the United States, without any express reservation of State law, of itself displaces all laws of the State where the place was. The Supreme Court first alluded to this question in 1803 in United States v. Simms (1803) 1 Cranch 252 (2 Law Ed 98) . I need not trace developments since then. The following passages from the judgment in James Stewart &Co. v. Sadrakula (1939) 309 US 94, at pp 99-100 (84 Law Ed 596, at pp 600-601) , state what I understand to be the doctrine now prevailing. These are to be read remembering always that, when the United States gets a place pursuant to cl. 17 of s. 8, it takes rather by way of a transfer of sovereignty than by an acquisition of ownership.

"The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights",

and later,

"Since only the law in effect at the time of the transfer of jurisdiction continues in force, future statutes of the state are not a part of the body of laws in the ceded area. Congressional action is necessary to keep it current." (at p113)

4. In Australia a generally similar position is, I consider, created by s. 52. Commonwealth legislation is necessary if the law in force in places that the Commonwealth holds is to be kept current with the law of the State within the boundaries of which those places are. The decision in Worthing's Case (1970) 123 CLR 89 established that. But it does not therefore follow that existing law there is overthrown. For almost seventy years now it was generally accepted that this is not so. The only reported decisions of superior courts that bear upon the matter - R. v. Banford (1901) 1 SR (NSW) 337 ; The Commonwealth v. New South Wales (1923) 33 CLR 1 - tend to confirm that view. The question was once directly raised in a District Court in New South Wales. The judge there said, after referring to s. 52:

" . . . it seems to me that the mere granting of exclusive jurisdiction to make laws for the peace, order and good government of the Commonwealth does not in itself have the effect of abrogating any laws duly made and already in force and operating for the peace, order and good government of the area in question whether it be regarded as Commonwealth property or not": Kingsford Smith Air Services Ltd. v. Garrisson (1938) 55 WN (NSW) 122, at p 124 .

This, not being a pronouncement of a superior court of record, is in no sense authoritative: but I venture to quote it for two reasons. First, because I would, for reasons that will appear, endorse it: secondly, because when an attempt was made in that case to bring the question before this Court an application for a rule nisi for prohibition was refused by Starke J. Since then there has been, until now, no curial challenge. But now it is suggested that the acquisition by the Commonwealth of a piece of land for its public purposes has in the past made it at once a place where anything might be done with impunity, and where nothing that was done could have any validity in law, unless and until Commonwealth legislation should restore law and order there. If that be so, then for very many years persons have been unlawfully punished for acts done in Commonwealth places; and transactions entered into in such places, in reliance upon which people have acted, have had no legal validity. That this can be remedied by the making of Commonwealth law, having a retrospective operation, would still leave it for me a most disquieting state of affairs. But it is not for that reason that I think that it is not warranted by law. I reject it simply because, in my view, it is contrary to the very words of the Constitution - without any need to wrest them, or to resort to their underlying policy and purpose except in so far as that is reflected by them. I do not wish to depart at all from what I wrote in Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390 , as to the principles of constitutional interpretation. But scrupulous regard for language need not dispel a remembrance of something that Holmes J. once said in the Supreme Court of the United States. I have quoted this on another occasion, but it will bear repetition again. Speaking of certain provisions of the American Constitution, that learned Justice said: "Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth": Gompers v. United States (1914) 233 US 604, at p 610 (58 Law Ed 1115, at p 1120) . There are times when we can say of our Constitution, as Frankfurter J. said of the Constitution of the United States: "While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning": Sweezy v. New Hampshire (1957) 354 US 234, at p 266 (1 Law Ed 2d 1311, at p 1333) . It is no doubt true that for law, as for other human institutions,

new occasions teach new duties.

But nothing that has emerged in this case makes me think that we should now suddenly assert that assumptions accepted in Australia for many years have been mistaken. The question is simply what is the meaning and effect, for the Australian Federation, of s. 52(i.) of the Constitution. The question arises in relation to a place acquired by the Commonwealth that lies within the geographical boundaries of a State. We are not concerned with any possible operation of this provision in relation to places acquired for the public purposes of the Commonwealth in overseas territories outside the federal system. (at p115)

5. As I understand it, s. 52 gives to the Commonwealth Parliament exclusive power to make laws with respect to places acquired by the Commonwealth, just that and no more. The Commonwealth Parliament, and it alone, can make laws with respect to any such places. Doubtless the Parliament can exercise its power at any time and make a law to operate with respect to places acquired in the past or to be acquired in the future. But it is only when a place has been acquired that a law made under s. 52 becomes effective there. It can operate in a particular place only from the date of its acquisition. I am unable to construe the existence of a power to make laws that will take effect for a particular place from a particular date as meaning that from that date there is no law at all for that place except that enacted by statutes of the Commonwealth Parliament. An exclusive power to make laws for a place acquired does not in terms require, not does it I think import, that upon its acquisition all existing State laws, whether of statutory or common law origin, relating to the conduct of persons at that place are, ipso facto and ipso jure, at an end. In the judgment in D'Emden v. Pedder (1904) 1 CLR 91, at p 111 , there is a passage that time has not withered:

"With respect . . . to matters within the exclusive competence of the federal Parliament no question of conflict can arise, inasmuch as from the point at which the quality of exclusiveness attaches to the federal power the competency of the State is altogether extinguished."

The time of acquisition by the Commonwealth of a place is the point at which the quality of exclusiveness with respect to that place attaches to the federal power. It is then and not till then that the competency of the State there is extinguished. And it is the competency of the State Parliament to legislate with respect to the place acquired that is then extinguished, not as I read it the legislation it has enacted before its competency was extinguished and not the common law in force in the place. I consider that these continue unless and until there be a Commonwealth statute that supersedes them. Their continuance does not I think need the support of an express provision in the Constitution. They continue simply because there is no provision of the Constitution which destroys them. There is nothing comparable for example with s. 90. As a general principle, if the central authority in a federation gains exclusive power to legislate with respect to a given subject matter, that does not mean that, before the power is exercised, the pre-existing law of a constituent province is at an end: see e.g. Watts v. Watts (1908) AC 573 , in relation to Canada. (at p116)

6. In my judgment in Worthing's Case (1970) 123 CLR 89 , I referred to s. 108 of the Constitution as expressly preserving existing law when a place was acquired. I realize now that what I wrote there can, as I expressed it, be read as giving s. 108 a more extensive application than, properly understood, it has. Nevertheless, it is significant as it and ss. 107 and 109 together state the result of the distribution of legislative powers, exclusive and concurrent, between the Commonwealth and the States. Section 107 preserves the legislative competence of State Parliaments in respect of any topic that is not exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. This is simply an expression of an element that is implicit in any federal system in which defined powers are granted to the central authority and the undefined residue remains with the constituent provinces. Section 107 confirms that as the underlying principle of Australian federalism. The section was obviously modelled on the Tenth Amendment in the United States. Of that it has been said that "it added nothing to the instrument as originally ratified": United States v. Sprague (1931) 282 US 716, at p 733 (75 Law Ed 640, at p 645) . But what might be found implicit in the United States Constitution because of its origin, would not necessarily have been implicit in our Constitution, its origin being different. (at p117)

7. When the Criminal Code Act of Western Australia was enacted it applied to offences committed at the place in question in this case, as it had not then been acquired by the Commonwealth. At the date when the offence now in question is alleged to have been committed there was not any Commonwealth law that modified or supplanted the Criminal Code. Therefore, in my opinion, a demurrer to the indictment could not have been upheld. I say that for reasons that I have already given. Section 108 has no direct application, as the Criminal Code Act is not in itself a law relating to a matter within the powers of the Parliament of the Commonwealth; and those are the only laws to which s. 108 applies. However, it has been suggested that it has an indirect bearing on this case; and, as I differ, with respect but rather radically, from the view that some members of the Court take of it, I shall explain how I understand its effect. I set it out:

"108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law of the Parliament of the Colony had until the Colony became a State."

Commentators soon saw that the second part of this section - that relating to the alteration or repeal "of any such law" by a State Parliament - contained a problem. Inglis Clark J., in his book Australian Constitutional Law, published in 1901, noted (at p. 94) that, read literally, it would give the Parliament of a State power to alter or repeal any law of the State which was enacted before the establishment of the Commonwealth, notwithstanding that it related to a matter placed by the Constitution within the exclusive legislative power of the Commonwealth. Professor Harrison Moore noticed the same thing and said, "The difficulty must be met by holding that matters within the exclusive power are excepted from the latter part of s. 108": The Constitution of the Commonwealth of Australia, 2nd ed. (1910), p. 412. This was the view of Sir Robert Garran also. In Quick and Garran: Constitution of the Australian Commonwealth (1901), pp. 656-658 and 938, there is a persuasive and illuminating discussion of the effect of ss. 107 and 108. I quote first this passage (from p. 657):

"The Constitution of the Commonwealth, however, is explicit where the American Constitution was vague. The distinction between State powers and State laws is expressly drawn (ss. 107, 108), and it seems clear that while powers which are exclusively vested in the federal Parliament are, from the moment of such vesting, taken away from the States, laws of the States existing at that moment continue in force 'subject to the Constitution'. That is to say, such laws, so far as they are not inconsistent with some provision of the Constitution itself, will continue in force until superseded by federal legislation."

I accept that as the effect of s. 108. I cannot, with respect for those who hold it, share the view that the second part of the section does not apply to laws within the concurrent power. In the view that I, following the leads I have mentioned, take that is all that it does apply to. The words in the section "until provision is made in that behalf by the Parliament of the Commonwealth" then refer, I take it, to provision in respect of "any matter within the powers of the Parliament of the Commonwealth". Difficulty then disappears, as when such provision is made the power of the Parliament of the State to alter and repeal the laws in question has gone, because upon the exercise by the Commonwealth of its concurrent power its law prevails by virtue of s. 109. This part of s. 108 is then simply a recognition of the validity of State legislation on a topic of concurrent power until Commonwealth law occupies the field. We have become so used to the term concurrent power and the concept that it embodies that s. 108 may be thought superfluous. But actually it is, as I understand the matter, the statutory sponsor, if not the creator, of the theory of concurrent powers in the Australian Constitution. A doctrine of the nature of federalism, which in America had to be spelt out of or into the Constitution there as a compact between sovereign States, is made express for us. That prevented it being supposed that the Imperial Parliament, by calling into existence a new Dominion of the Crown, the Commonwealth of Australia, and conferring upon it legislative power with respect to matters specified in s. 51, had entirely taken away from the Australian colonies powers that they had theretofore had. It is on the combined effect of ss. 107, 108 and 109 that the theory of concurrent powers and the nature of Australian federalism firmly rest. (at p118)

8. Section 108 expressly kept State laws that existed before federation in force for the time being thereafter in respect of some topics on which the Commonwealth Parliament was given exclusive power to make laws. It is suggested that the absence of any similar provision in relation to s. 52 should be read as an indication that when the Commonwealth Parliament gains exclusive power to legislate in respect of a particular place acquired by the Commonwealth all existing State law there comes to an end. But it seems to me a mistaken reliance on literalism to invoke the presence of a provision, designed to ensure that the coming Commonwealth would not produce any anarchy, as a ground for saying that, without some similar provision, the acquisition by the Commonwealth of places from time to time after federation produced pockets of anarchy throughout Australia. I prefer to adopt the view expressed in Quick and Garran (p. 938), and to regard the power to make laws with respect to places acquired as operating in relation to a particular place only from the time of its acquisition; and that laws of the State previously made, upon any topic which was not until the place was acquired a subject over which the Commonwealth Parliament had any power, may hold good. (at p119)

9. I therefore consider that the accused could be tried pursuant to the Criminal Code on an indictment for the offence with which he stood charged. (at p119)

10. The next question is could he be tried for that offence in a District Court pursuant to a procedural statute of Western Australia that was enacted after the acquisition by the Commonwealth of the place where the offence is alleged to have been committed. I can see no reason why he should not be so tried. An Act which governs conduct in a place is a law with respect to that place. The decision in Worthing's Case (1970) 123 CLR 89 , establishes that. But a general law regulating the manner and form of the trial of offences is not to my mind properly called a law with respect to a place. (at p119)

11. I would answer both questions in the case "Yes". (at p119)

OWEN J. Section 184 of the Criminal Code of Western Australia which was enacted in 1913 makes it an offence for a male person to commit any act of gross indecency with another male person. It was enacted before the date of the acquisition by the Commonwealth of an area of land in Western Australia for use as an air force base but it was not contended before us that it is a law to which s. 108 of the Constitution can be applied, the relevant provision of the criminal law in force when Western Australia was a colony and which differed in some respects from the present s. 184 having been repealed in 1902 and replaced by the Criminal Code Act, 1902 which in turn was repealed and replaced by the present Criminal Code of 1913. (at p120)

14. If the Criminal Code (W.A.) did cease to operate in respect of the place at Bullsbrook when it was acquired by the Commonwealth, there would be no criminal law in force there, because the laws in force in the colony had been effectively repealed before the date of acquisition. I should have regarded it as remarkable that the Constitution should have had the result that some places within the Commonwealth were, in some branches of the law, subject to no legal rules at all, even if the Commonwealth Parliament had the power to fill the void. Such a situation would I think be quite without precedent. I do not know of any case in which a Court has been obliged to hold that a place within its jurisdiction is not governed by any legal rules on a particular subject. The possibility of anarchy resulting when territory becomes subjected to a new sovereign by cession or conquest has been avoided by the long-established rule (discussed in Buchanan v. The Commonwealth (1913) 16 CLR, at pp 333-335 ) that continues, with some exceptions, the laws previously in force until they are altered by the new sovereign. Similarly, if the law to be applied in a newly acquired territory is laid down by a statute which on one interpretation would cause a legal vacuum, the statute will be given a wide construction to avoid such a result - see, for example, Booth v. Booth (1935) 53 CLR 1, at pp 29-30 . (at p135)

15. The question whether an existing State statute continued to apply in relation to lands ceded by a State to the United States arose in Chicago, Rock Island and Pacific Railway Co. v. McGlinn (1885) 114 US 542(29 LawEd 270) and the Supreme Court, applying the rule governing the continuance of laws in a territory ceded by one nation to another, held that the statute remained in force in relation to the lands after the cession. It appears to be settled law in the United States that where land is ceded by a State to the United States the law in force in the State at the time of the cession continues to have effect with respect to the land, until abrogated by a law passed by the United States (see James Stewart &Co. v. Sadrakula (1939) 309 US 94, at pp 99, 100 (84 LawEd 596, at pp 600, 601) ), although laws subsequently enacted by the State will not apply (Arlington Hotel Company v. Fant (1929) 278 US 439(73 LawEd 447) ; Murray v. Joe Gerrick &Co. (1934) 291 US 315, at p 318 (78 LawEd 823-824) ). In the United States the State laws in force at the time of cession continue to apply notwithstanding that the ceded lands have ceased to be part of the State, and there would seem to be even stronger reasons for the continuance of State laws in Australia in places acquired by the Commonwealth which do not cease to be part of the State. (at p136)

16. For the reasons I have given, I hold that the State law in force in the place on which the Pearce Royal Australian Air Force base now stands was not affected by the acquisition of that place by the Commonwealth. No Commonwealth law inconsistent with s. 184 of the Criminal Code (W.A.) had been passed prior to 11th March 1970 and it follows that s. 184 was in force at Pearce on that date. (at p136)

17. The question whether the District Court of Western Australia has jurisdiction to try the accused for the offence alleged is one of less difficulty. It is true that the District Court of Western Australia Act, 1969 (W.A.) was passed after the place was acquired by the Commonwealth for public purposes. If that Act dealt with a matter within the power given to the Commonwealth by s. 52(i.) it would therefore not operate in relation to the place so acquired. However, what the statute does is to set up a State Court which is invested with State jurisdiction. That is not a matter within any power of the Commonwealth. It is, of course, true that the Commonwealth Parliament could set up a federal court for the purpose of trying persons alleged to have committed offences against laws of the Commonwealth in places acquired by the Commonwealth for public purposes or it could invest State Courts with federal jurisdiction to try such alleged offenders. Whether the Commonwealth laws simply applied State laws, or legislated directly for the places, the jurisdiction exercised by the federal court in trying offenders against the Commonwealth laws would be federal jurisdiction. In the present case the accused is alleged to have committed in a place within the State an offence against the law of the State. The State had power to pass a law creating a court with jurisdiction to try such an offence notwithstanding that it was allegedly committed in a place acquired by the Commonwealth for public purposes. (at p137)

18. In my opinion, therefore, the two questions asked should be answered as follows:

Question (a): Yes. Question (b): Yes. (at p137)

Orders

The questions asked by the District Court of Western Australia are answered as follows:
Q. (a) Does the indictment disclose an offence under the laws of Western Australia?
A. No.
Q. (b) If the answer to question (a) is 'Yes', has this Court jurisdiction to try the accused for the offence alleged in the indictment?
A. Unnecessary to answer.