Spratt v Hermes

[1965] HCA 66

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.

SPRATT v. HERMES

(1965) 114 CLR 226

6 December 1965

Constitutional Law (Cth)—High Court

Constitutional Law (Cth)—Territories—Australian Capital Territory—"Seat of Government"—Source of legislative power—Courts of territories—Magistrate's court in Australian Capital Territory—Jurisdiction to hear charge of offence against statute applying indifferently to States and Territories—Whether magistrate must be appointed for life etc.—"The Commonwealth"—"Laws of the Commonwealth"—The Constitution (63 &64 Vict. c. 12), covering cll. 3, 5, ss. 52 (i.) 71, 72, 73, 76, 111, 122, 125—Seat of Government (Administration) Act 1910- 1959 (Cth), ss. 11, 12—Seat of Government Acceptance Act 1909-1938 (Cth), s. 9—Post and Telegraph Act 1901-1961 (Cth), ss. 107, 151—Court of Petty Sessions Ordinance 1930-1961 (A.C.T.), ss. 5 (1), 7, 18. High Court—Jurisdiction—Source of original jurisdiction as to territories—Case stated by Supreme Court of Australian Capital Territory—The Constitution (63 &64 Vict. c. 12), ss. 76 (i.), (ii.), 122—Acts Interpretation Act 1901- 1964 (Cth), s. 15A—Australian Capital Territory Supreme Court Act 1933-1960 (Cth), s. 13*.

Decisions

December 6.
The following written judgments were delivered: -
BARWICK C.J. On the hearing of a charge by a stipendiary magistrate in a Court of Petty Sessions in the Australian Capital Territory, the defendant raised an objection that the Court was without jurisdiction to try the charge because its trial involved an exercise of the judicial power of the Commonwealth within the meaning of Chap. III of the Constitution, and the Court of Petty Sessions was not constituted as required by that Chapter. The charge was that an offence had been committed in the Australian Capital Territory by sending by post a letter which had therein words of a grossly offensive character contrary to the provisions of s. 107 (c) of the Post and Telegraph Act 1901-1961 (Cth). (at p238)

2. The stipendiary magistrate who constituted the Court of Petty Sessions was appointed under s. 7 (1) of the Court of Petty Sessions Ordinance 1930-1961 of the Australian Capital Territory, and thus held office during the pleasure of the Governor-General: see s. 7 (2) of the Ordinance. The basis of the defendant's objection was that the magistrate did not hold office during good behaviour. Cf. The Constitution, ss. 72 (ii.) and (iii.). (at p238)

3. Upon the magistrate overruling the objection, the defendant sought prohibition from the Supreme Court of the Australian Capital Territory to restrain the magistrate from hearing the charge. (at p238)

4. Section 13 of the Australian Capital Territory Supreme Court Act 1933-1960 (Cth) purports to give to the judge exercising the jurisdiction of that Court, power to state a case for the consideration of a Full Court of the High Court and to give to this Court authority to hear and determine the case stated. Upon the application for prohibition coming before a judge of the Supreme Court of the Australian Capital Territory, the Judge, pursuant to s. 13, stated a case to this Court in which answers to the following two questions are sought: "(i) Whether the provisions of s. 72 of the Commonwealth of Australia Constitution Act apply to the appointment of a stipendiary magistrate sitting as a Court of Petty Sessions in the Territory referred to in the Court of Petty Sessions Ordinance 1930-1961 of the Australian Capital Territory. (ii) Whether the said Clarence Lindsay Hermes having been appointed a stipendiary magistrate as stated in pars. 2 and 3 hereof and sitting as such pursuant to the Court of Petty Sessions Ordinance 1930-1961 of the Australian Capital Territory without having been appointed upon the terms specified in s. 72 pars. (ii.) and (iii.) of the Commonwealth of Australia Constitution Act has jurisdiction to hear and determine the information and summons aforesaid." (at p238)

5. Section 18 (1) of the Court of Petty Sessions Ordinance which was promulgated pursuant to s. 12 of the Seat of Government (Administration) Act 1910-1959 (Cth) provides for Courts of Petty Sessions in the Australian Capital Territory; the jurisdiction of such a court is exercisable by a stipendiary or special magistrate appointed under s. 7 (1) of the Ordinance, an appointment which, as I have said, is at the Governor-General's pleasure. (at p238)

6. Three questions arise: (i) Has this Court the jurisdiction to entertain the stated case? (ii) May the Commonwealth Parliament create courts to exercise jurisdiction in respect of occurrences in or concerning a territory of the Commonwealth without complying with the provisions of s. 72 of the Constitution? (iii) May such courts enforce in relation to occurrences within the limits of the territory in question a law made by the Parliament upon a subject matter falling within s. 51 of the Constitution intended to operate throughout the Commonwealth? (at p239)

7. The first question, being a matter of our own jurisdiction, ought to be examined at the outset. (at p239)

8. Section 13 of the Australian Capital Territory Supreme Court Act, to which I have already referred, does not limit the matters in which a case may be stated to the Court to matters falling within the scope of s. 76 of the Constitution. But in the generality of its expression it includes such matters; and if the Constitution so requires, it can be restricted in its operation to such matters by virtue of s. 15A of the Acts Interpretation Act 1901-1957 (Cth). The matter raised in the stated case involves the interpretation of the Constitution and falls within s. 76 (i.). Therefore the Supreme Court had power to state the present case and this Court has jurisdiction to entertain and to decide it. (at p239)

9. In thus dealing with the question of this Court's jurisdiction, I would not wish to be taken as prepared to decide that by an exercise of power under s. 122 of the Constitution, the Parliament may not give original jurisdiction to this Court in matters which do not fall within s. 76. That question has not heretofore been decided by this Court. It has been held both by the Privy Council and by this Court that the Parliament may give a right of appeal to this Court from the decisions of courts having jurisdiction in respect of occurrences in the territories of the Commonwealth and may impose jurisdiction upon this Court to hear and determine such appeals: see, for example, Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288, at p 320; (1957) 95 CLR 529, at p 545 ; Porter v. The King; Ex parte Yee (1926) 37 CLR 432 ; Chow Hung Ching v. The King (1948) 77 CLR 449 . Such appellate jurisdiction has been exercised by this Court on a number of reported occasions: see, for example, Menges v. The King (1919) 26 CLR 369 ; Mainka v. Custodian of Expropriated Property (1924) 34 CLR 297 ; Tuckiar v. The King (1934) 52 CLR 335 ; Sparre v. The King (1942) 66 CLR 149 . (at p239)

10. But members of this Court who have had occasion to express a view upon the question whether original jurisdiction in respect of occurrences in a territory may be imposed upon this Court have been equally divided in opinion: see Porter v. The King; Ex parte Yee (1926) 37 CLR 432 . (at p240)

11. In In re Judiciary and Navigation Acts (1921) 29 CLR 257 , a majority of the Court held that Chap. III of the Constitution exhaustively defined the original jurisdiction which may be given to this Court: (1921) 29 CLR, at p 265 . But this expression of opinion must be taken, in my opinion, in the context of that case to be limited to original jurisdiction given by laws made under legislative power derived from s. 51 of the Constitution. It has not so far been taken by the Court as a decision that Chap. III negates the possibility of original jurisdiction being given to this Court by a law made under some other legislative power of the Parliament, cf. view of Knox C.J. and Gavan Duffy J. in Porter v. The King; Ex parte Yee (1926) 37 CLR, at p 438 and the view of Dixon J. (as he then was) in Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 CLR 582, at p 585 . (at p240)

12. I do not doubt the great inconvenience of increasing the original jurisdiction of this Court. Already it is extensive; and, as the Court is called upon to exercise it to any substantial extent, so the time available for the discharge of its appellate functions, which in general have more consequence, is seriously reduced. But, as at present advised, I cannot find any satisfactory fundamental distinction between the imposition upon the Court of appellate jurisdiction in respect of the decisions of courts created for the territories and the imposition upon it of original jurisdiction in connexion with occurrences in or concerning a territory. If the power to increase the original jurisdiction of this Court by laws made under the power conferred by s. 122 is to be denied, it must, in my opinion, be because of a limitation upon that section effected by some part of Chap. III construed in the Constitution as a whole. This conclusion might be said to follow from the difference in the language of s. 73 and that of s. 76. As at present advised I am not persuaded of it. However, it is unnecessary, in my opinion, to resolve that question in order to decide this case; accordingly, I abstain from doing so. (at p240)

13. In making these observations, I draw no distinction between the Australian Capital Territory and any other of the territories of the Commonwealth for I think that none can or should be drawn; in particular, I see no relevant consequence in the fact that the seat of government is to be found within the Australian Capital Territory or in the fact that the Parliament and the Executive Government there exercise poers which are federal in their nature. In my opinion, the power to make laws in respect to the Australian Capital Territory is derived from s. 122; in relation to the present matter I do not think that anything is added to or subtracted from that power by s. 52 (i.). Thus I find no need to discuss the ambit of the legislative power given by s. 52. (at p241)

14. In refraining from expressing a concluded opinion as to whether the Parliament may, pursuant to s. 122, impose on this Court original jurisdiction in matters which do not fall within any of the descriptions in s. 76, I ought to say at once that, in my opinion, this Court already has original jurisdiction in respect of occurrences within a territory. In my opinion, s. 75 of the Constitution extends to give the Court original jurisdiction in all matters there described wherever the acts or omissions which form the basis of the approach to the Court have or should have occurred and whatever the nature of the cause of action which the moving party may seek to pursue. In my view, it is clear, for example, that this Court could entertain an action between a resident of Western Australia against a resident of Queensland for a wrongful act done by the one to the other in a territory of the Commonwealth; it can grant mandamus to an officer of the Commonwealth to perform a duty which is to be performed in a territory; and do so, though the Commonwealth officer is located in a territory. Equally, it may prohibit an act of an officer of the Commonwealth to be done, or in the course of being done, in a territory. The decision in Waters v. The Commonwealth (1951) 82 CLR 188 , which would appear to decide the contrary is, in my respectful opinion, insupportable and should be overruled. It was reached under the compulsion of a veiw of Chap. III and of the decision of this Court in R. v. Bernasconi (1915) 19 CLR 629 , to which I shall presently refer. That was a view which in effect imported into the language of s. 75 limitations which, in my opinion, are unwarranted and which are in truth inconsistent with the evident purpose of giving to this Court by the Constitution itself - and thus placing beyond the assail of the Parliament - such significant powers as those of which s. 75 speaks. (at p241)

15. The Court, in my opinion, for the reasons I have given, has power to entertain the stated case. (at p241)

16. I turn now to the second question. Section 122 gives to the Parliament legislative power of a different order to those given by s. 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s. 122 to "for the government of the Territory". This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States. (at p242)

17. But this does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than Chap. VI are applicable to the making of laws for the Territory or to its government. It must remain, in my opinion, a question of construction as the matter arises whether any particular provision has such an operation, the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole. It has been decided for instance that, for reasons derived from the evident federal purpose of that provision, s. 55 properly construed does not apply to laws made by the Parliament for a territory under the legislative power given by s. 122: Buchanan v. The Commonwealth (1913) 16 CLR 315 : and that s. 80 neither applies of its own force to the trial in a territory of an offence there committed nor need its provisions be observed by the Parliament in making laws for such trial of such offences: R. v. Bernasconi (1915) 19 CLR 629 . I shall refer in a moment to the reasons advanced for this decision and express my own respectful view as to the basis upon which the decision in that case can be accepted. (at p242)

18. The reported cases establish that the Commonwealth using its legislative power derived from s. 122 can create courts with jurisdiction in respect of occurrences in or concerning a territory: see for example Porter v. The King; Ex parte Yee (1926) 37 CLR 432 ; Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288; (1957) 95 CLR 529 . (at p242)

19. Unless s. 72 is of universal application to all courts created by the Commonwealth pursuant to any legislative power, these decisions determine the answer to the second question. However, s. 72, in my opinion, is not of such universal application. Upon its proper construction, in my opinion, it refers in the expression "the other courts created by the Parliament" to the other courts to which reference is made in s. 71, namely, such other federal courts as the Parliament creates, courts created by laws made in pursuance of the "federal" legislative powers contained in s. 51 of the Constitution. A court created by a law made by the legislative power given by s. 122 is not a "federal" court. Thus the section is not a limitation upon the power to create courts of judicature which is included within the complete power of legislation given by s. 122 for the government of the Territories. (at p243)

20. I come to the conclusion, therefore, directly from the language of the Constitution that the Commonwealth by laws made under the legislative powers given by s. 122 can create or authorize the creation of courts with jurisdiction in respect of occurrences in or concerning a territory without observing the requirements of s. 72 in the appointment of the judicial officers constituting such courts. (at p243)

21. But not all those who have considered this matter and would arrive at the same conclusion would do so for the reasons I have thus expressed. Some would support that result upon the fundamental view that Chap. III as a whole is inapplicable to or in respect of territories. The consequences of such a view are, in my opinion, so far-reaching and my respect for those who have entertained and do entertain it so great, that I feel bound to indicate the reasons for my inability to accept it. (at p243)

22. It is said that it is a logical conclusion from that opinion (and I agree that it is) that this Court may not entertain an action against the Commonwealth in respect of the wrongful detention in a territory of the Commonwealth of an Australian citizen by one of its officers. For so it was decided in Waters v. The Commonwealth (1951) 82 CLR 188 . The conclusion that this Court may not exercise the powers given it by s. 75 of the Constitution to prohibit a wrongful act or compel a lawful act whatever the source of the unlawfulness or of the duty by a Minister of the Crown done or to be done at the seat of government, which by the Constitution must be within a territory of the Commonwealth (s. 125), is, to my mind, so disturbing that one must immediately doubt the validity of the course of reasoning which appears to lead to it, and, however time honoured it may be, re-examine it. (at p243)

23. The reasons for judgment of the Court in R. v. Bernasconi (1915) 19 CLR 629 form the basis of the doctrine that Chap. III of the Constitution as a whole "has no application to the Territories"; "does not extend to the Territories". But such a conclusion does not necessarily follow, in my respectful opinion, from the decision itself in that case. (at p243)

24. It was there decided that, and I quote the headnote to the report of the case which, in my opinion, accurately reflects the Court's decision, "the power of the Commonwealth Parliament conferred by s. 122 of the Constitution to make laws for the government of a territory, whether that power is exercised directly or through a subordinate legislature, is not restricted by the provision in s. 80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury" (1915) 19 CLR 629 . Whatever doubts there may be as to that decision, in my opinion, what it actually decided, as thus expressed, ought not now to be disturbed. For one thing, it is a decision of long standing upon the basis of which legislation has frequently been passed: and for another, the significance of what it precisely decides is now small having regard to R. v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 and R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 . What might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision. (at p244)

25. In my opinion, the decision in R. v. Bernasconi (1915) 19 CLR 629 may be supported upon the ground that upon the proper construction of s. 80, read in the Constitution as a whole, the offences to which it refers are offences created by or under the authority of laws made by the Parliament pursuant to legislative powers derived from s. 51 of the Constitution, that is to say, to offences made under those laws of the Commonwealth, which in substance was what Isaacs J. held. This, the disclosed intention of the Constitution, might be derived from the unlikelihood that it could have been thought that juries would be found in such potential territories of the Commonwealth as might have been within contemplation at the foundation of the Commonwealth; and perhaps from the circumstance that the section appears to be in some sense related to ss. 71 and 72. (at p244)

26. But, whatever reason is found for so contruing it, in my respectful opinion, it is because of the construction of s. 80 itself, as distinct from any reasoning affecting Chap. III as a whole, that the decision in R. v. Bernasconi (1915) 19 CLR 629 should be supported. Indeed, Griffith C.J. (with whose views Gavan Duffy and Rich JJ. agreed) did initially reach the conclusion that the offences to which s. 80 related were such as were created as incidental to the execution of laws made under powers federally circumscribed (4). But he proceeded to treat such laws as exclusively entitled to the description "laws of the Commonwealth": and also to treat the whole of Chap. III as if none of it could apply to a non-federal power or situation. Isaacs J. did not accept the view that the law contrvened in that case, though deriving its force ultimately from s. 122, was not a law of the Commonwealth. But, he concluded that because s. 80 was found in Chap. III which dealt with "the whole judicial power of the Commonwealth proper", it was restricted in its operation to the exercise of that judicial power. (at p245)

27. In my most respectful opinion, these expressions went beyond the occasion, and were in their full extent unnecessary in order to support the conclusion that the offences to which s. 80 relates are only such as are created by the exercise of federal legislative powers. There does not seem to me to be any single theme running throughout Chap. III which requires it to be treated so much all of one piece that if any part of it relates only to federal matters, every part of it must likewise be restrained. Thus the mere presence of s. 80 in Chap. III does not, in my respectful opinion, require that it be inapplicable to territories and therefore to non-federal offences. (at p245)

28. Also, in my opinion, parts of Chap. III are clearly "applicable to the territories". It has been made clear that inter se questions can arise out of the exercise of powers exclusively vested in the Commonwealth as well as out of the exercise of a concurrent power: see Dennis Hotels Pty. Ltd. v. Victoria (1962) AC 25; (1961) 104 CLR 621 . The paramountcy of Commonwealth law accorded by s. 109 of the Constitution is not limited to paramountcy over laws made under those powers of the State with which the Commonwealth has concurrent power but every law of the Commonwealth whatever the constitutional power under which or by reference to which it is made or supported is paramount over every inconsistent State law. Further, laws made for a territory may operate into a State: see Lamshed v. Lake (1958) 99 CLR 132 . Thus the possibility of inter se questions arising out of an exercise of the powers given by s. 122 is apparent. It could scarcely be said that because s. 74 is found in Chap. III it is limited to such questions arising out of the exercise of "federal" legislative powers. It could not be said that s. 74 was not "applicable to the territories". Lamshed v. Lake (1958) 99 CLR 132 shows that it cannot be said: see (1958) 99 CLR, at p 148 . (at p245)

29. I have already indicated my view as to the operation of s. 75. It must, in my opinion, apply no matter where the act upon which the proceedings before the court are founded has been or ought to be done and whether the cause of action derives from an exercise of legislative power given by s. 51 or by s. 122. Again, s. 78 is not limited to the making of laws to proceed against the Commonwealth in federal matters: nor must s. 56 of the Judiciary Act 1903-1960 be construed to exclude claims against the Commonwealth arising out of occurrences in a territory. (at p246)

30. Further, it seems to me, with the utmost respect, to be an error to compartmentalize the Constitution, merely because for drafting convenience it has been divided into chapters. No doubt on some occasions some assistance may be obtained from the place in the layout of the Constitution which a particular provision occupies when resolving ambiguities in language. But this does not call for disjoining a part of the Constitution from the rest. Cf. Dixon J. (as he then was) in Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR, at pp 84, 85 ; and Dixon C.J. in Lamshed v. Lake (1958) 99 CLR, at p 145 . (at p246)

31. Obviously some of the provisions found in Chap. I of the Constitution are "applicable to the territories", to borrow the elliptical phrase taken from the reasons for judgment in R. v. Bernasconi (1915) 19 CLR 629 : Sections 43, 44, 45, and 46 must apply to a member for whom provision is made pursuant to s. 122. Section 49 must, as Dixon C.J. pointed out in Lamshed v. Lake (1958) 99 CLR, at p 143 , apply when laws made pursuant to s. 122 are passing through the House. There would seem to be no reason why a double dissolution should not result from a disagreement of the House and the Senate upon a proposed law to be made under the powers derived from s. 122. (at p246)

32. Again, the duty to execute laws made for territories is surely no less under Chap. II than it is in respect of laws made under s. 51. Nor is there any reason to think that a Department of Territories may not be created under s. 64; and so it may be shown that much of Chap. II must be "applicable to the territories". (at p246)

33. It seems to me therefore, with the utmost respect, that whilst s. 122 does give a complete and, as opposed to those given by s. 51, a different power - there is no warrant for segregating that power from the rest of the Constitution or for taking any global view of any chapter of the Constitution and regarding it as wholly inapplicable to Chap. VI or to or in respect of the exercise of the power it gives. (at p246)

34. Besides saying that none of Chap. III was applicable to territories, it was also said by the majority in R. v. Bernasconi (1915) 19 CLR 629 that a law made under s. 122 was not a law of the Commonwealth. (at p246)

35. It may be granted that the word "Commonwealth" is used in the Constitution sometimes geographically, as in part of covering cl. 5 where it speaks of "every part of the Commonwealth", and sometimes as a reference to the political entity which the Constitution created, as in other parts of that covering clause. It may also be granted that the powers which were given to the Commonwealth were of different orders, some federal, limited by subject matter, some complete and given expressly, and some no doubt derived by implication from the very creation or existence of the body politic. Consequently, the need to observe the nature of the powers sought to be exercised at any time by the Commonwealth is ever present. But, the Constitution brought into existence but one Commonwealth which was, in turn, destined to become the nation. The difference in the quality and extent of the powers given to it introduced no duality in the Commonwealth itself. The undoubted fact that the Commonwealth emerged from a federal compact or that that compact is reflected in the limitations placed upon some of the powers of the Commonwealth or that the new political entity derived from a union of the peoples of the former colonies does not deny the essential unity and singleness of the Commonwealth. (at p247)

36. Consequently, in my opinion, the expression "law of the Commonwealth" embraces every law made by the Parliament whatever the constitutional power under or by reference to which that law is made or supported: see per Dixon C.J. in Lamshed v. Lake (1958) 99 CLR, at p 148 . (at p247)

37. Although the territories may not be included in the federal system in the sense that the powers of the Commonwealth with respect to them are not federally circumscribed, they are, in my opinion, clearly included in the expression "The Commonwealth", e.g. throughout Chap. I of the Constitution. I see no occasion for contrasting a Commonwealth which contains or embraces only the constituent elements of a federation with a Commonwealth which includes all the areas over which it can by one power or another legislate. If the fundamental concept of a single Commonwealth is accepted, there would seem to be no need to entertain any distinction between territories which originally contained people who were members of a colony at the point of federation and other territories or to seek to find significance in the presence within a territory of the seat of government. (at p247)

38. No doubt some of the powers of the Commonwealth are appropriate to the rule of non self-governing possessions whilst others, though federally disposed, are truly those of a self-governing people. But this neither means that the Constitution is divisible into two parts without any mutual interaction nor that the power to govern dependent territories is in no respect controlled by any other part of the Constitution. (at p248)

39. I have not attempted to discuss in detail in these reasons the various reported cases in this Court in which the doctrine derived from R. v. Bernasconi (1915) 19 CLR 629 has been discussed, criticized, or applied. Realizing the significance of departure from views hitherto widely, though I am bound to say not universally, accepted, I have anxiously studied the judgments in which R. v. Bernasconi (1915) 19 CLR 629 or the doctrine derived from it have been mentioned. Having done so, I am constrained to observe that there would seem in reality to be no uniformity in the views expressed or in the manner of applying them. On the other hand, in my opinion, a departure from the doctrine would not result in any change in the actual result of any of the reported cases with the exception of Waters v. The Commonwealth (1951) 82 CLR 188 . (at p248)

40. Though the abandonment of a doctrine of interpretation of the Constitution is something not lightly and but rarely to be done, I feel compelled after deep consideration, because of the logical consequences of doing so, to express the view that the Constitution ought not to be interpreted as if Chap. III as a whole were "inapplicable to territories". (at p248)

41. Having thus expressed myself, I return to say that, in my opinion, upon its true construction s. 72 does not apply to courts created by or pursuant to laws made under s. 122. (at p 248)

42. The second of the three questions I have posed as arising in the case should therefore be answered affirmatively. The Commonwealth may create territorial courts without complying with the requirements of s. 72. (at p248)

43. As to the third question, I have had the advantage of reading the reasons for judgment to be given by my brother Kitto. I entirely agree with the reasons he gives for deciding that a territorial court having the appropriate local jurisdiction may enforce in relation to acts occurring within the territory in question a law made by the Parliament upon a subject matter falling within s. 51 of the Constitution and intended to operate throughout the Commonwealth. I would not wish to add anything to his expression of those reasons. (at p248)

44. In my opinion, the questions submitted in the stated case should be answered : (i) No. (ii) Yes. (at p248)

KITTO J. The prosecutor stands charged with having committed within the Australian Capital Territory an offence against s. 107 (c) of the Post and Telegraph Act 1901-1961 (Cth). The Court in which the charge is pending is a court of petty sessions constituted under s. 18 (1) of the Court of Petty Sessions Ordinance 1930-1961 (A.C.T.), an Ordinance promulgated under s. 12 of the Seat of Government (Administration) Act 1910-1959 (Cth). By s. 18 (2) of that Ordinance it is provided that the jurisdiction of the Court may be exercised by a magistrate (other than a special magistrate) or by one or more special magistrates ; and s. 5 (1) defines "magistrate" to mean inter alia a stipendiary or special magistrate appointed under the Ordinance. Provision for the appointment of stipendiary magistrates is made by s. 7 (1), and by s. 7 (2) it is provided that a stipendiary magistrate appointed under s. 7 (1) shall be paid such remuneration, and shall hold office on such terms and conditions, as the Governor-General determines. Upon the charge coming on to be heard before the Court as constituted by a stipendiary magistrate appointed under s. 7 (1), the prosecutor objected to the jurisdiction on the ground that to adjudicate upon the charge would be to exercise a part of the judicial power of the Commonwealth to which Chap. III (ss. 71 to 80) of the Constitution refers, and that since the Court of Petty Sessions does not consist of Justices appointed upon the terms of s. 72 (ii.) and (iii.) as to non-removability and remuneration it is not a court in which, consistently with Chap. III, any of that judicial power of the Commonwealth may be vested. The objection was overruled by the magistrate and prohibition against his proceeding further with the charge is now being sought from the Supreme Court of the Territory. That Court, under s. 13 of the Australian Capital Territory Supreme Court Act 1933-1960 (Cth), has referred to this Court by stated case questions involved in the objection. (at p249)

2. To entertain the case stated is of course to exercise original jurisdiction. It is to exercise so much of the original jurisdiction to determine the application for prohibition as is involved in deciding the questions submitted by the Supreme Court. We must therefore decide whether s. 13, which in terms not only authorizes the stating of a case but empowers a Full Court of the High Court to hear and determine the case, is constitutionally valid. It happens that if I discuss that question at once a good deal of the ground which is relevant to the questions asked in the case stated will be covered. (at p249)

3. In its application to the present case, s. 13 is within the literal terms of the legislative authority conferred on the Parliament by s. 76 (ii.) of the Constitution ; for the relevant "matter", namely the claim to have further proceedings in the Court of Petty Sessions prohibited, is one which involves the interpretation of the Constitution. If s. 76 (ii.) were to be given an application unrestricted by the context it may be that with the aid of s. 15A of the Acts Interpretation Act s. 13 could be upheld in so far as it applies to such a case. But it has been the doctrine of this Court for fifty years, consistently maintained notwithstanding criticism, that Chap. III is directed to a limited topic and accordingly has a limited application. The doctrine arises from a consideration of the framework of the Constitution and from many indications, to be found by working through the Constitution Act (63 and 64 Vict. c. 12) and the Constitution itself, that the first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies, with their divers interests, sentiments, prejudices, ambitions and apprehensions, to unite in the federation. When Chap. VI is reached, and it is found that s. 122 gives the Parliament a general power to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed under the authority of the Commonwealth or otherwise acquired by it, a change to a fundamentally different topic is perceived. The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being "a part of the Commonwealth" : cf. Harrison Moore, The Commonwealth of Australia, 2nd ed. (1910) p. 589. (at p250)

4. The other sections of Chap. VI likewise deal with new topics, which may be described broadly as methods by which the composition of the federation may be altered. But it is not only the change of topic that is considered to be important in relation to s. 122. The width of the legislative power it confers is the crucial consideration. Whether or not one or two of the miscellaneous provisions in Chap. V apply to the territories - ss. 116 and 118 have been suggested, e.g. in Lamshed v. Lake (1958) 99 CLR 132, at pp 142, 143 , though further consideration has made me more doubtful than I was about them - it seems clear enough that the limitations which Chap. I puts upon legislative power in the working of the federal system, anxiously contrived as they are with the object of keeping the Parliament to the course intended for it, are thrown aside as irrelevant when the point is reached of enabling laws to be made for the government of territories which stand outside that system ; for s. 122 uses terms apt to authorize the Parliament to make what provision it will for every aspect and every organ of territory government. The exercise of the judicial power which is a function of government of a territory is within the unrestricted authority thus in terms conferred. The Court decided quite early, in Buchanan v. The Commonwealth (1913) 16 CLR 315 , that the Constitution, addressing itself here to something different from that to which its first five chapters have been devoted, makes on the new topic a provision which is appropriately free from all concern with problems of federalism. The concern here is not only with "a new consideration", as Isaacs J. called it in R. v. Bernasconi (1915) 19 CLR 629, at p 637 , but with "a disparate non-federal matter" as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288, at p 320; (1957) 95 CLR 529, at p 545 . (at p251)

5. This has been considered the great fact to be borne in mind when one turns to Chap. III and asks how the territories stand in relation to the provisions there made. They are provisions that speak of "federal" courts and "federal" jurisdiction, and by so doing confirm the inference which the considerations already mentioned so strongly suggest. It would have been simple enough, as was recognized in the Boilermakers' Case (1956) 94 CLR 254, at p 290 , to follow the words of the relevant provisions, i.e. without attending to the scheme and the layout of the Constitution; but, the allurement of simplicity notwithstanding, the conclusion that has been reached is that Chap. III does not intend to provide for or regulate the exercise of any judicial power save that which inheres in the federal polity as a function of government in respect of its own area, and that accordingly no provision of the Chapter is to be interpreted as intending to reduce the generality of the power conferred by s. 122 to make laws for inter alia the exercise of that judicial power which attaches to the Commonwealth, not in virtue of its character as the central polity of the federation and therefore in respect of the federated area, but in virtue of its responsibility for the entire (non-federal) government of a community made subject in all respects to its authority. (at p251)

6. The Court enunciated the doctrine in R. v. Bernasconi (1915) 19 CLR 629 , and has applied it in the interpretation and application of Chap. III ever since. R. v. Bernasconi (1915) 19 CLR 629 itself related to the provision in s. 80 that the trial on indictment of an offence against any law of the Commonwealth shall be by jury. A person was charged before a court in a territory with having committed in the territory an assault contrary to a provision of an ordinance which was in force in the territory by virtue of a law operating under s. 122. He was tried and convicted by a magistrate sitting without a jury, under the authority of a provision in an ordinance of the territory which applied to the case. The decision of the High Court was that the latter provision was valid and that s. 80 of the Constitution had no application to such an exercise of judicial power as the trial of the charge required. The reason was expressed a little differently in the judgments of Griffith C.J. (with whom Gavan Duffy and Rich JJ. concurred) on the one hand and of Isaacs J. on the other, but with no difference in fundamental idea. Griffith C.J. placed his emphasis on the expression in s. 80, "any law of the Commonwealth". He held that the reference was only to a law passed in the execution of those functions of government as to which the Commonwealth "stands in the place of the States" as contrasted with the territories. This he did on the basis of a general proposition that Chap. III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of the functions thus referred to, and "has no application to the territories" (1915) 19 CLR, at p 635 - by which he obviously meant has no application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which the Commonwealth exercises authority over the territories as subordinate polities. Isaacs J. held s. 80 to be inapplicable to the case on the general view that that section is "clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community" (1915) 19 CLR, at p 637 . The view of the Court may be expressed by saying that a trial in a territory court of a charge of an offence in the territory against a law of the territory is as surely outside federal judicial power and within territory judicial power as a trial in a State of a charge of an offence in the State against a State law is outside federal judicial power and within State judicial power. No relevant distinction arises from the fact that the court is established and the offence created in the latter case by or under the laws of a self-governing State and in the former case by or under laws imposed upon the territory ab extra. (at p252)

7. The distinction is surely not artificial. It does involve interpreting the expression "the Commonwealth" in Chap. III in a narrower sense than that which it bears in some contexts, e.g. in covering cl. 5; but no one would contend that it is an expression of invariable meaning, and the task that must be faced in interpreting Chap. III is to select the meaning which is appropriate in that context. Such difficulty as there is in the task is to some extent due to the choice of the word "Commonwealth" as the title of the federal union instead of the more descriptive title, the United States of Australia. If the descriptive expression had been used in Chap. III, the prima facie meaning of it would have excluded the territories. No doubt even that expression would have come to be applied on occasions, by a process of extension, to the whole area under the central legislative power, including the territories; but a use of it in the extended sense would have been ex facie inaccurate, and the adoption of the extended meaning in construing Chap. III could not have been justified in the absence of a positive indication that that was the meaning intended. (at p253)

8. The case of Waters v. The Commonwealth (1951) 82 CLR 188 occasions some difficulty, due, I venture to think, to a misconception of the Bernasconi doctrine by the learned Judge who decided it. The plaintiff, alleging that he was being unlawfully detained in the Northern Territory by officers of the Commonwealth, sued in the High Court for an appropriate declaration, for habeas corpus and for an injunction. He made the Commonwealth and the officers defendants to the action, and the "matter" was therefore within the descriptions in pars. (iii.) and (v.) of s. 75 of the Constitution. His Honour held that nevertheless the action was not within the jurisdiction of the Court, holding that according to Bernasconi's Case (1915) 19 CLR 629 , by which as a single Judge he was bound, Chap. III was not law in and for the territories. In my respectful opinion that is not what Bernasconi (1915) 19 CLR 629 decided. The statements appearing in the judgments that Chap. III "has no application to the territories", "does not extend to the territories", are, as I read them, elliptical and mean only that the Chapter has no application to the exercise of that judicial power which exists as a function of government of a territory. The doctrine of the case does not set any limit to the operation which s. 75 or s. 76 have according to their terms, for those sections confer jurisdiction (s. 75), or authorize the Parliament to confer jurisdiction (s. 76), as part of the judicial power of the Commonwealth referred to in s. 71. It may be mentioned that in Reg. v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, at p 161 Dixon C.J. remarked, though only in an obiter dictum in the course of an oral judgment, that the application that had been made in that case to the Supreme Court of the Australian Capital Territory and referred by that Court to the High Court might have been made in the first instance to the High Court, because, as the argument had shown, the matter arose under the Constitution. No doubt his Honour had in mind s. 30 (a) of the Judiciary Act 1903-1946 (Cth). (at p254)

9. In Waters v. The Commonwealth (1951) 82 CLR 188 it was unnecessary for Fullagar J. to decide whether a law operating in a territory by force of s. 122 could validly have conferred on the High Court original jurisdiction for such a case as that which he had before him. But the question had been considered long before, in the case of Porter v. The King; Ex parte Yee (1926) 37 CLR 432 . Opinions were much divided in that case, with the odd result that while four of the six Justices decided that appellate jurisdiction in respect of a territory might be given to the High Court by a law operating under s. 122 there was an equal division of opinion as to whether original jurisdiction in respect of a territory might likewise be given, though no one suggested any difference in principle between them. The important point to notice is that the distinction upon which the Bernasconi doctrine rests, the distinction between provisions of the Constitution that relate only to the federal system and provisions that relate to non-federal matters, met with no word of criticism from any of the Justices. True it is that Knox C.J. and Gavan Duffy J. (the latter himself a party to Bernasconi which, however, was not cited in the joint judgment) treated the case of In re Judiciary and Navigation Acts (1921) 29 CLR 257 , in which they had been of the majority, as establishing that the jurisdiction of the High Court, whether original or appellate, is to be sought solely in Chap. III; and if a majority of the Court had agreed with them it would have been impossible thereafter to maintain the Bernasconi interpretation of the Chapter. But three Justices (including two who had been of the majority in In re Judiciary and Navigation Acts (1921) 29 CLR 257 ) considered that that case related only to the original and appellate jurisdiction of the High Court in matters within federal judicial power; and, in express conformity with Bernasconi (1915) 19 CLR 629 , they held that s. 122 contained a power of legislation which, being untrammelled by anything in Chap. III, extended to giving the High Court both original and appellate jurisdiction in territory matters falling outside the federal judicial power of the Commonwealth. The remaining Justice, Higgins J., had dissented in In re Judiciary and Navigation Acts (1921) 29 CLR 257 . He did not say, and could hardly be expected to say, which two members of the majority in the case were correctly interpreting their joint judgment. But his Honour, accepting that judgment as having the effect attributed to it by Knox C.J. and Gavan Duffy J., declined to apply its principle to appellate jurisdiction. He mentioned Bernasconi's Case (1915) 19 CLR 629 without criticism. Thus, of the five Justices to whose reasoning an opinion as to the soundness of the Bernasconi doctrine was relevant, a majority accepted and applied it. Of these, the new-comer to the doctrine was Starke J., from whose judgment I quote a few sentences for the sake of their clear affirmation. (at p255)

10. "The Parliament has, by force of s. 122 of the Constitution, full and plenary power over the territories . . . 'The governments of the territories are not, however, organized under the Constitution, nor subject to its complex distribution of the powers of government, but they are creations, exclusively, of the Parliament, and subject to its supervision and control (cf. Benner v. Porter (1850) 9 Howard 235 (13 Law Ed 119) ; R. v. Bernasconi (1915) 19 CLR 629 ). Consequently, it is within the competence of Parliament to create Courts for the territories, and to define their jurisdiction, or 'to delegate the authority requisite for that purpose' to the governments of the territories (cf. Leitensdorfer v. Webb (1857) 20 Howard 176, at p 182 (15 Law Ed 891, at p 893) ). And there is nothing on the face of s. 122 which precludes the Parliament from subjecting the judicial organs of the territory to supervision by way of appeal to and review by judicial organs of the Commonwealth itself. (at p255)

11. "It is said, however, that the Constitution delimits the whole of the judicial power which may be exercised by this Court pursuant to the Constitution (In re Judiciary and Navigation Acts (1921) 29 CLR 257 ). I am unable to accept this view. In the case cited the Court was dealing with the judicial power defined in Chap. III of the Constitution. But in the present case we are dealing with a jurisdiction or authority given to this Court in pursuance of the power which enables the Parliament to make laws for the government of the territories. Therefore, in my opinion, the Parliament might have directly conferred upon this Court the jurisdiction defined in s. 21 of the Ordinance 1911-1922 establishing the Supreme Court for the Northern Territory of Australia" (1926) 37 CLR, at pp 448, 449 . (at p255)

12. Thus Bernasconi's Case (1915) 19 CLR 629 was left in possession of the field; and every member of the Court who has touched upon the subject since (with the possible though not certain exception of Evatt J. in Ffrost v. Stevenson (1937) 58 CLR 528, at p 592 ) has accepted the proposition, even if he has not given it his approval, that Chap. III does not limit in any way the authority of the Parliament under s. 122 to make laws with respect to the exercise of judicial power which are laws for the government of a territory: see, for example, Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at pp 289, 290, aff (1957) AC 288; (1957) 95 CLR 529. ; Lamshed v. Lake (1958) 99 CLR 132, at p 142 , and other cases cited herein. In particular, ever since Porter v. The King; Ex parte Yee (1926) 37 CLR 432 there has been a continuous acceptance of the validity of laws conferring on the High Court appellate jurisdiction in respect of territories, notwithstanding any disregard they may evince of Chap. III: e.g. in Wall v. The King (1927) 39 CLR 245, at p 250 ; Jolley v. Mainka (1933) 49 CLR 242 ; Tuckiar v. The King (1934) 52 CLR 335, at p 338 ; Chow Hung Ching v. The King (1948) 77 CLR 449, at pp 459, 470, 475 . As regards original jurisdiction in territory matters there has been some measure of uncertainty, traceable to the illogical attitude which Higgins J. felt himself obliged to take up in Porter v. The King (1926) 37 CLR 432 . He assumed (or conceded, it is not clear which) that the case of In re Judiciary and Navigation Acts (1921) 29 CLR 257 bound him to deny validity to a law giving the High Court original jurisdiction outside Chap. III, but he insisted nevertheless upon maintaining the validity of a similar law as to appellate jurisdiction, while not expressly agreeing or disagreeing with the Bernasconi doctrine. It was this, apparently, that led Dixon J. to question his jurisdiction in Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 CLR 582 , though he concluded that he was warranted in assuming jurisdiction none the less. The doubt seems to have continued in his Honour's mind in Douran v. Whisker (1946) 72 CLR 595, at p 606 and Chow Hung Ching v. The King (1948) 77 CLR 449, at p 475 (note the expression "on any view"), and may account for the obiter dictum in Reg. v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, at p 161 to which I have already referred. What his Honour said in Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29, at p 84 as to the difficulty of reconciling the cases on the subject (i.e. on the subject of the relation of s. 122 to the rest of the Constitution) cannot be gainsaid, but as Fullagar J. found in Waters v. The Commonwealth (1951) 82 CLR 188, at pp 191, 192 the difficulty is not in applying the Bernasconi doctrine but in reconciling with that doctrine everything that was said in Mainka v. Custodian of Expropriated Property (1924) 34 CLR 297 , and with everything that was said in Porter v. The King (1926) 37 CLR 432 . But at least in Lamshed v. Lake (1958) 99 CLR 132, at p 142 Dixon C.J. accepted the position, on the authority of Bernasconi (1915) 19 CLR 629 , that Chap. III may be treated as imposing no limit upon the power to make laws under s. 122. Accordingly, whatever might have been said at an earlier time it seems to me that the difficulties of reconciliation have by now become of only academic importance. Mainka v. Custodian of Expropriated Property (1924) 34 CLR 297 I have not discussed, because in so far as the judgment in that case was out of line with Bernasconi (1915) 19 CLR 629 the discrepancy ceased to matter, I think, after Porter v. The King (1926) 37 CLR 432 . And as regards Porter v. The King (1926) 37 CLR 432 itself, the difficulty of choosing between the divergent views there expressed has become, as I see it, simply a question whether Bernasconi (1915) 19 CLR 629 stands or not; and it has stood so long and been acted upon by the Parliament so often that I cannot doubt we will best perform our proper service by accepting it as established law. Indeed, in view of its history in this Court and in the Privy Council, a departure from it is a course which in my opinion the Court should not contemplate. On that footing, and being unable myself to see, or to find in any judgment a suggestion that anyone else has seen, a logical ground for distinguishing in principle between appellate and original jurisdiction as regards the power of the Parliament to give this Court jurisdiction outside Chap. III by means of a law operating under s. 122, I am of opinion that we ought to hold as a corollary of Bernasconi's Case (1915) 19 CLR 629 , and in line with the decision in Porter v. The King (1926) 37 CLR 432 and all the cases that have followed it, that the power of Parliament under s. 122, being unrestricted by anything expressed or implied in Chap. III, extends to conferring on the High Court original as well as appellate jurisdiction in any matter, provided that in doing so it is a law for the government of a territory. (at p257)

13. We have been strongly urged to admit an exception in the case of the Australian Capital Territory on either or both of two grounds: (i) that the source of legislative power for the government of the Capital Territory is not s. 122, or at least is not exclusively s. 122, and that that is sufficient to prevent the reasoning of Bernasconi's Case (1915) 19 CLR 629 from applying in relation to that Territory; and (ii) that Chap. III applies to the whole of the federal polity and that the Australian Capital Territory is within that polity, either because the polity is co-terminous with the continent of Australia or because the Territory, by reason of its special relation to the seat of government, is integral to the federal system. (at p257)

14. The first ground is based upon what I believe, with all respect to those who have thought differently, to be the misconception that the source, or at least a source, of legislative power for the government of the Capital Territory is s. 52 (i.) of the Constitution, so that conclusions which depend upon the exclusiveness of s. 122 as a source of that power do not apply. By s. 52 (i.) the Parliament is given exclusive power to legislate for the peace, order and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes. The power under the first limb of s. 52 (i.) extends only, I think, to the making of laws on the subject of the seat of government as a specific and separate topic of legislation to be distinguished from more general topics which may affect a place in which the seat of government is or is to be - just as the second limb extends only, I should suppose, to laws on the specific subject of places fulfilling the given description. It is the seat of government as such, and places acquired, etc., as such, which I understand to be referred to in s. 52 (i.). Examples of the kind of legislation authorized by the first limb are to be found in the Seat of Government Act 1908-1955 (Cth) and s. 4 of the Seat of Government Acceptance Act 1909-1955 (Cth). In view of the clear distinction drawn in s. 125 of the Constitution, it would be difficult to maintain that the Constitution identifies the seat of government with the territory in which the Parliament has determined that the seat of government shall be. In my opinion the whole power to legislate for the government of that territory is found in s. 122, which in terms applies to "any" territory. The inferences to be drawn from that section must, I think, be the same for the Capital Territory as for any other territory. (at p258)

15. The second of the grounds referred to should, I think, be dismissed as requiring a complete rejection of the reasoning in Bernasconi's Case (1915) 19 CLR 629, for it depends upon treating "the Commonwealth" in Chap. III as referring to a larger area than that of the federated States. It is true that the Constitution Act (covering cl. 6) treats the Northern Territory as included (in 1900) in South Australia, and that what is now the Australian Capital Territory was then a part of New South Wales; so that the area of the federation to which the doctrine of Bernasconi's Case (1915) 19 CLR 629 refers covered, at the beginning, the whole continent. But it is the federation as it exists from time to time as the self-governing community that is to be contrasted with the territories which from time to time exist as communities subject to government by the federation: see per Isaacs J. in Buchanan v. The Commonwealth (1913) 16 CLR 315, at p 335 . The federation came into existence as a union of the people of six Colonies, but as a union inherently, by its own constitution, susceptible of alteration as regards the States composing it: see ss. 121-124 and covering cl. 6. It is for this reason that I should think unmaintainable for relevant purposes the distinction, which Griffith C.J. mentioned as a possibility in Mitchell v. Barker (1918) 24 CLR 365, at p 367 , between territories which have and those which have not formed part of the Commonwealth. As for the suggestion that the Capital Territory is so essentially a part of the federal system that it is included in the concept of "the Commonwealth" in Chap. III, perhaps it is sufficient to say that so to hold would be to deny the Bernasconi doctrine completely; for it is of the essence of the doctrine that Chap. III treats of the Commonwealth in the sense of a polity which consists of the federated communities and is therefore confined geographically to the regions comprising the States. (at p259)

16. For these reasons I am of opinion that s. 13 of the Australian Capital Territory Supreme Court Act is valid and that therefore this Court has jurisdiction to hear and determine the case stated. Subject to one question, the same reasons lead to a conclusion adverse to the prosecutor on the case stated itself. (at p259)

17. The question that remains is raised by reference to the fact that s. 107 (c) of the Post and Telegraph Act is a law enacted in general terms, with the evident intention of applying indifferently to the States and to the territories, except in so far, of course, as other legislation may exclude its application in particular places. The prosecutor contends that any court which adjudicates upon a matter arising under such a general law exercises a part of the judicial power of the Commonwealth to which Chap. III applies. In my opinion the answer is that jurisdiction to try a person on a charge of having committed in a territory an offence against such a law necessarily falls within that judicial power which is a function of government in respect of the territory and not within federal judicial power. This is not due simply, or directly, to the fact, though it is a fact, that the law under which the charge is laid operates in the territory by force of s. 122 as a law for the government of the territory, whereas it operates in the Commonwealth proper by force of s. 51 (v.) as a law for the peace, order and good government of the Commonwealth. It is due to the fact that what is charged is conduct in the territory which the operation of a law in force there makes an offence; for an offence in the territory against a law of the territory is in its nature triable in exercise of that judicial power which appertains to the government of the territory and not, unless there be some federal factor in the case, to the judicial power which appertains to the government of the federation of States. (at p260)

18. For the foregoing reasons I am of opinion that the questions in the case stated should be answered: (1) No. (2) Yes. (at p260)

Costs of the stated case to be paid by the prosecutor.

Case remitted to the Supreme Court of the Australian Capital Territory.