Svikart v Stewart

[1994] HCA 62

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

SVIKART v STEWART (1994) 181 CLR 548, (1994) 125 ALR 554,

(1994) 69 ALJR 35

7 December 1994

Constitutional Law (Cth)—Places acquired by the Commonwealth for public purposes—Exclusive power of Commonwealth Parliament Places acquired in Northern Territory—The Constitution (63 and 64 Vict. c. 12), ss. 52(i), 122.

Headnote

Section 52(i) of the Commonwealth Constitution does not apply to places in the Northern Territory acquired by the Commonwealth for public purposes.


So held by Mason CJ, Brennan, Deane, Dawson and McHugh JJ, Toohey and Gaudron JJ dissenting.


Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR 248, distinguished.

Hearing

1993, December 7; 1994, December 7
#DATE 7:12:1994


CASE STATED

Charles Edward Stewart was charged under s. 19(2) of the Traffic Act 1987 (N.T.) with having driven a motor vehicle on a public street whilst his blood alcohol concentration was more than .08 per cent. He was also charged with having driven without a licence on a public street without due care contrary to s. 32 of the Traffic Act, and with having driven on a public street without due care contrary to reg. 95 of the Traffic Regulations 1988 (N.T.). The offences were alleged to have occurred within the R.A.A.F. Base at Darwin. The question was raised before the magistrate hearing the charges whether, assuming the R.A.A.F. Base was a Commonwealth place within the meaning of s. 52(i) of the Commonwealth Constitution, the Traffic Act had any application to roads on the Base. The matters were removed into the High Court pursuant to s. 40(1) of the Judiciary Act 1903 (Cth), and a case was stated and questions reserved for the consideration of the Full Court. The questions were: "1. Does s. 52(i) of the Constitution apply to places in the Northern Territory acquired by the Commonwealth for public purposes? 2. Is the R.A.A.F. Base Darwin a Commonwealth place within the meaning of s. 52(i) of the Constitution? 3. If yes to 1 and 2, do the Acts and Regulations referred to in paragraph 1 of the Case Stated "the Traffic Act and the Traffic Regulations" apply to the driving by the defendant of the motor vehicle on the R.A.A.F. Base?"


D. M. J. Bennett QC (with him A. Robertson), for the defendant. Section 52(i) of the Constitution precludes State law from applying to Commonwealth places within a State (1). The Commonwealth Places (Application of Laws) Act 1970 (Cth) does not apply to the Northern Territory since it applies only to States. At the time of the three 1970 decisions there were no self-governing Territories. The problem did not arise in relation to non self-governing Territories because the laws of such places were simply delegated laws of the Commonwealth and therefore there was nothing inconsistent with the exclusivity provision. Legislation enacted by the legislature of a self-governing Territory is not Commonwealth legislation. The legislature of a self-governing Territory with power to make laws for the peace, order and good government of that Territory cannot exercise an exclusive Commonwealth power because it is not a delegate of the Commonwealth (2). Accordingly the principle in the 1970 cases applies to Commonwealth places within a self-governing Territory. A defence base falls within s. 52(i) (3). Therefore the Traffic Act and Regulations made under it do not apply on the Base.


T. I. Pauling QC, Solicitor-General for the Northern Territory, (with him G. R. Nicholson and R. J. Webb), for the complainant. The intention disclosed in the Convention Debates is that the exclusive Commonwealth legislative power over Territories was to be derived from the Territories power in the Constitution and not from the power as to Commonwealth acquired places (4). The early drafts of what is now s. 52(i) show that it was to be limited to Commonwealth places acquired in States. This followed from the counterpart in the United States Constitution (Art. 1, s. 8(17)) and Reynolds v. The People (5). The purpose of s. 52(i) is to provide the Commonwealth with exclusive general legislative powers over such places as it might

(1) Worthing v. Rowell and Muston Pty. Ltd. (1970), 123 CLR 89; Attorney-General (N.S.W.) v. Stocks and Holdings (Constructors) Pty. Ltd. (1970), 124 CLR 262; Reg. v. Phillips (1970),125 CLR 93.

(2) Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR 248.

(3) Reg. v. Phillips (1970),125 CLR 93; Reg. v. James, (1952) NZLR 596; (1953) NZLR 137.

(4) Official Record of the Debates of the Australasian Federal Convention, vol. 1 (1891), pp. 701-704; vol. III (1897), pp. 829-833; vol. IV (1898), pp. 253-262; vol. V (1898), p. 1874.

(5) (1869) 1 Colo. 179.

acquire for public purposes and to ensure that the Commonwealth is entirely free of State legislation and legislative powers while those places remain as Commonwealth places, although such places are still part of the State (6). That purpose does not apply to a Commonwealth Territory such as the Northern Territory which is subject to the exclusive jurisdiction and sovereign powers of the Commonwealth immediately upon acquiring the status of a Territory. The Commonwealth does not need the benefit of a constitutional provision for the exclusivity of the Commonwealth Parliament's legislative powers over any place in that Territory subsequently acquired by the Commonwealth for a public purpose so as to be free of the legislation and legislative powers of some other political entity except in so far as the Commonwealth might have previously chosen to create one. The whole of the Northern Territory, upon its surrender by South Australia and its acceptance by the Commonwealth, came under the exclusive sovereign jurisdiction of the Commonwealth in 1911 as a "Territory" and not as a "place" (7). The words in s. 52(i) "places acquired by the Commonwealth for public purposes" are not apposite to deal with the acquisition of political jurisdiction by this process as a Commonwealth Territory which includes, but is not limited to, the acquisition of the radical title to all land in the Territory on behalf of the Crown. Rather, those words refer to the acquisition by the Commonwealth of specific forms of proprietary rights in a specified property for a public purpose (8). In the United States, the federal acquisition of places under Art. 1, s. 8(17), requiring the consent of the State, has been held to include not only exclusive Congressional legislative powers (subject to the terms of the agreement or cession), but also political jurisdiction and dominion, whereas such acquisition without State consent gives only proprietary rights (9). (He referred to Kleppe v. New Mexico (10); Paul v. United States (11); District of Columbia v. Thompson (12); and Eckloff v. District of Columbia (13).) The change to self-government in 1978 did not

(6) The Commonwealth v. New South Wales (1923), 33 CLR 1, at p. 46.

(7) Constitution, ss. III, 122.

(8) Worthing v. Rowell and Muston Pty. Ltd. (1970), 123 CLR, at pp. 97, 109, 124125; Attorney-General (N.S.W) v. Stocks and Holdings (Constructors) Pty. Ltd. (1970), 124 CLR, at p. 276; Reg. v. Phillips (1970), 125 CLR, at pp. 99-100, 112,129.

(9) Fort Leavenworth Railroad Co. v. Lowe (1885), 114 US 525, at pp. 531-533.

(10) (1976) 426 US 245.

(11) (1963) 371 US 245.

(12) (1952) 346 US 100.

(13) (1890) 135 US 120.

mean that there was any abdication of the Commonwealth's exclusive sovereign powers over the Northern Territory. It continues to be a Commonwealth Territory and is subject to the Commonwealth Parliament's plenary legislative power under s. 122 (14). If it is accepted that there were no Commonwealth places in terms of s. 52(i) in the Northern Territory before self-government, nothing in Capital Duplicators Pty. Ltd. v. Australian Capital Territory (15) supports the conclusion that "exclusive" in s. 52(i) now means exclusive of both States and self-governing Territories. Unlike s. 90 and other sections dealing with uniform free trade matters in the geographic area that is Australia, there is no rationale that would support the extension of the exclusive power as to Commonwealth acquired places in s. 52(i) to self-governing Territories. There is no necessary reason why the meaning given to "exclusive" in s. 90 in relation to Territories should also be given to the word where it appears in s. 52 in its application to Commonwealth acquired places (16). The word "exclusive" and its derivatives are used elsewhere in the Constitution by reference to States only: ss. 77(ii), 85(i), (ii), 107 and 111. Where the Constitution does not expressly so state, the application of particular sections to Territories is a matter of construction having regard to the particular text and the purpose of the Constitution as a whole (17). The authorities largely support the conclusion that in the context of Commonwealth acquired places in s. 52(i), "exclusive" means exclusive only of States (18). Alternatively, if s. 52(i) applies to places in the Northern Territory acquired by the Commonwealth for public purposes, the Northern Territory Legislative Assembly is validly empowered by the Northern

(14) Reg. v. Toohey, Ex parte Northern Land Council (1981), 151 CLR 170, at pp. 184, 228; Northern Land Council v. The Commonwealth (1986), 161 CLR 1, at p. 6; Attorney-General (N.T) v. Minister for Aboriginal Affairs (1989), 25 FCR 345, at pp. 364-365; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at pp. 8, 12, 33.

(15) (1992) 177 CLR 248.

(16) Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed. (1988), p. 66.

(17) Spratt v. Hermes (1965), 114 CLR 226, at p. 242; Teori Tau v. The Commonwealth (1969), 119 CLR 564, at pp. 569-570; Australian Capital Television Pty. Ltd. v. The Commonwealth (1992), 177 CLR 106, at p. 222; Capital Duplicators Pty. Ltd v. Australian Capital Territory (1992), 177 CLR, at pp. 272, 284-285, 287-289.

(18) Nott Bros. and Co. Ltd. v. Barkley (1925), 36 CLR 20, at p. 29; The Commonwealth v. New South Wales (1923), 33 CLR, at p. 46; Spratt v. Hermes (1965), 114 CLR, at pp. 241, 258, 262-263, 271, 273, 281; Worthing v. Rowell and Muston Pty. Ltd. (1970), 123 CLR, at pp. 97, 106, 109, 124-125; Reg. v. Phillips (1970), 125 CLR, at pp. 111, 124, 129; Capital TV and Appliances Pty. Ltd. v. Falconer (1971), 125 CLR 591, at pp. 599-600; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at pp. 266-267; Pryce v. King (1985), 37 NTR 19.

Territory (Self-Government) Act 1978 (Cth) to legislate for such places. The Commonwealth Parliament may authorize a subordinate Territory legislature (whether or not its delegate and whether or not of a self-governing Territory) to legislate for that Territory under s. 122. The legislative power in s. 122 is plenary and exclusive and encompasses all that is necessary for Territories. It is not relevantly limited in any way by s. 52(i) (19). Section 52 is expressed to be "subject to this Constitution" but s. 122 is not. It follows that in so far as legislation for Territories is also sought to be supported under s. 52(i), and whether as to the seat of government or as to Commonwealth acquired places, it is a power not limited to the Commonwealth Parliament alone. It extends to a law made by a territorial legislature under a law of the Commonwealth made in the exercise of the Commonwealth's exclusive legislative powers under SS. 52(i) and 122. Capital Duplicators Pty. Ltd v. Australian Capital Territory is distinguishable. The reasons for making s. 90 exclusive of States and self-governing Territories do not apply to SS. 52(i) and 122. Observations in the judgment of Brennan, Deane and Toohey JJ (20) in relation to the seat of government under s. 52(i) are obiter dicta and should not be taken to suggest the contrary. They imply a limitation on subordinate territorial legislative power in relation to the seat of government with respect to the functioning of that seat as such.


G. Griffith QC, Solicitor-General for the Commonwealth, (with him C. R. Staker), for the Attorney-General for the Commonwealth, intervening in support of the complainant. The expression "exclusive power" in s. 52(i) means "exclusive of the legislative powers of the States" (21). The words "exclusive jurisdiction of the Commonwealth" in s. 111 include exclusive legislative powers to which s. 52(iii) applies (22). If "exclusive power" in s. 52(i) meant exclusive of the powers of both State and Territory legislatures, the combination of SS. 52(iii) and 111 would exclude altogether the possibility of self-government in the Australian Capital Territory and the Northern Territory. That cannot have been intended. The Commonwealth has power to provide for legislatures with general legislative

(19) Spratt v. Hermes (1965), 114 CLR, at pp. 241, 258, 262-264, 271, 273, 278, 281282; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at pp. 266-267.

(20) ibid., at p. 273.

(21) Nott Bros. and Co. Ltd. v. Barkley (1925), 36 CLR, at p. 29; Quick and Garran, Constitution of the Australian Commonwealth (1901), p. 661.

(22) Quick and Garran, op. cit., p. 656; Roughley v. New South Wales (1928), 42 CLR 162, at p. 198.

powers in Territories within s. 111 (23). There is no inconsistency in saying that powers of Territory legislatures derived from s. 122 are subject to s. 90 but are not to restrictions under s. 52. Powers under s. 122 are not subject to certain other constitutional limits. Whether s. 122 is subject to any other provision of the Constitution remains a question of construction as the matter arises, the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole (24). There is no textual or other constitutional reason for any general exclusion of the powers of a Territory legislature from Commonwealth places in the Territory. There are no special considerations such as those applicable to duties of customs or excise (25). There is no reason why "exclusive power" in s. 52 must have the same meaning as in s. 90: the latter supplements the exclusivity under s. 52 as regards the States. In relation to the Australian Capital Territory, the powers of the Parliament under s. 122 are not subject to any limitation by virtue of the reference to the "seat of government" in s. 52(i) (26). In particular, the "exclusive power" of the Parliament with respect to the "seat of government" in s. 52(i) does not prevent selfgovernment for the whole of the Australian Capital Territory, including the seat of government. Similarly, s. 122 should not be subject to any limitation by virtue of the reference to "places" in s. 52(i). Furthermore, Commonwealth constitutional interests do not require s. 52(i) to be read as excluding the power of a Territory legislature. The Commonwealth's interests, whether as to the "seat of government", Commonwealth places or otherwise, are adequately protected against Territory legislatures both by its overriding power under s. 122 and by implied immunities of the Commonwealth (27). Alternatively, if "exclusive" does not mean "exclusive of the legislative power of the States", s. 52(i) does not apply to Commonwealth places in a Territory. There was no need for s. 52(i) to provide, and it was not intended that it should provide, for exclusive power of the Parliament of the Commonwealth with regard to

(23) Berwick Ltd. v. Gray (1976), 133 CLR 603, at p. 607; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at pp. 259-261, 265-267, 271-274.

(24) Sprott v. Hermes (1965), 114 CLR, at p. 242; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at p. 288.

(25) ibid., at pp. 274-279, 288-290.

(26) Spratt v. Hermes (1965), 114 CLR, at pp. 240-241, 258, 261-264, 271, 273, 278, 280-282; Capital TV and Appliances Pty. Ltd. v. Falconer (1971), 125 CLR, at p. 616; Capital Duplicators Pty. Ltd. v. Australian Capital Territory (1992), 177 CLR, at p. 266.

(27) ibid., at p. 273.

Commonwealth places in a Territory, since s. 122 gives plenary power to the Commonwealth Parliament with respect to such places.


K. J. Crispin QC (with him D. R. Jarvis), for the Attorney-General for the Australian Capital Territory, intervening in support of the complainant. The word "place" is used in s. 52(i) in contradistinction to Territory acquired by the Commonwealth pursuant to s. 111 (28). Upon the acquisition of a Territory the Commonwealth obtains exclusive jurisdiction under s. 111 and the power to make laws for its government under s. 122. Section 52 is concerned with the rights of the Commonwealth vis-a-vis the States and refers to places within States rather than Territories. It is s. 122 rather than s. 52 which is the source of legislative power for the Territories. The defendant's argument treats s. 52(i) as limiting the legislative power conferred by s. 122. However, the section is plainly intended to confer power on the Commonwealth rather than take it away or detract from powers otherwise conferred. Even if it provides a parallel source of power for the Territories, it does not derogate from the power conferred by s. 122 (29). Capital Duplicators Pty. Ltd v. Australian Capital Territory does not mean that the Parliament may not confer jurisdiction on a Territory in relation to any of the matters referred to in s. 52. That decision is distinguishable. It was based largely upon the fact that the establishment of a free trade zone throughout Australia had been one of the essential objectives of Federation, and hence it was unlikely that there had been any intention to permit the erosion of the rights thereby created. No similar considerations apply to the construction of s. 52. Section 90 creates exclusive power to impose duties whilst s. 52 creates exclusive power to make laws for the peace, order and good government of the Commonwealth in relation to certain matters. The former suggests that it must be the Commonwealth itself which imposes the duties, while the latter enables the Commonwealth to make any laws conducive to such purpose including the establishment of independent legislative bodies under s. 122. That impression is confirmed by the words "subject to this Constitution" which appear in s. 52 but not in s. 90 and establish that the Commonwealth's entitlement to such exclusive power is subject to other provisions in the Constitution including,

(28) Worthing v. Rowell and Muston Pty. Ltd. (1970), 123 CLR, at pp. 97, 124-125; Pryce v. King (1985),37 NTR 19, at p. 23; 2 MVR 335, at pp. 338-339,

(29) Spratt v. Hermes (1965), 114 CLR, at pp. 241, 273, 278.

presumably, the power conferred by s. 122. The fact that s. go is concerned with uniform duties provides further ground for inferring that it must be exercised by the Commonwealth. No comparable consideration exists in relation to s. 52. The difficulties created by the 1970 cases were resolved by Commonwealth Places (Application of Laws) Act 1970. If one Commonwealth statute can apply State law to places specified in s. 52(i), it is difficult to see why another Commonwealth statute cannot authorize a Territory legislature to make laws with a similar application. It would be strange if the Parliament had power to make State laws applicable to Commonwealth places but not to make Territory laws applicable there.


D. M. J. Bennett QC, in reply. There is no inconsistency between a wide power in s. 122 and a narrower exclusive power in s. 52. In Commonwealth places there is exclusive power under s. 52; in Territories there is power under s. 122; in Commonwealth places in Territories there is both power under s. 122 and exclusive power under s. 52. Power is not inconsistent with exclusive power. The fact that there was no need for the power over Commonwealth places to extend to Commonwealth places in Territories is no reason for presuming that they were intended to be excluded. Indeed, the seat of government was expressly included in s. 52(i) and it was known that it was to be in a Territory: ss. 122, 125. Why should "Commonwealth places" be read as excluding places in a Territory if the other referent of the sub-section was not so qualified? Section 111 does not confer an "exclusive power". It uses the phrase "exclusive jurisdiction". One cannot give a different meaning to "exclusive" in ss. 52 and 90 when s. 52(iii) expressly picks up s. 90 by reference to the same word. The primary purpose of s. 52(iii) is to give "exclusive" the same meaning in ss. 52 and 90. Otherwise that section would be tautologous. Reynolds v. The People is distinguishable because Colorado was not a self-governing Territory. Colorado law was therefore United States law. Similarly, the present question could not have arisen before self-government. There is also a strong policy that the Commonwealth should retain exclusive control of Commonwealth places, particularly military bases. That is why the power over them was made exclusive rather than general. The exclusivity in s. 122 only arises because there is no-one else with the relevant power. It is de facto not de jure exclusivity. Once a selfgoverning Territory is created, the power ceases to be exclusive. The Commonwealth Places (Application of Laws) Act makes State laws operate as if they were Commonwealth laws. They are, in effect, adopted by reference. That is not what is done by self-government legislation (30).

(30) Capital Duplicators Pty. Ltd. v. Australian Capital Territory.
Cur. adv. vult.

Counsel for the Complainant: T. I. Pauling QC, Solicitor-General
for the Northern Territory with
G. R. Nicholson and R. J. Webb


Counsel for the Defendant: D. M. J. Bennett QC with
A. Robertson


Solicitor for the Complainant: M. D. S. Harrison,
Solicitor for the Northern Territory


Solicitors for the Defendant: Withnall Cavanagh and Co

Solicitors for the Interveners: G. Griffith QC, Solicitor-General
for the Commonwealth
C. R. Staker, intervening on behalf
of the Attorney-General of the
Commonwealth, instructed by the
Australian Government Solicitor
K. J. Crispin QC and D. R. Jarvis
on behalf of the Australian Capital
Territory, instructed by the ACT
Government Solicitor

Orders

Answer the questions reserved as follows:
1. Does s.52(i) of the Constitution apply to places in the Northern
Territory acquired by the Commonwealth for public purposes?
Answer: No.
2. Is the RAAF Base Darwin a Commonwealth place within the meaning of
s.52(i) of the Constitution?
Answer: No.
3. If yes to 1 and 2, do the Acts and Regulations referred to in
paragraph 1 of the Case Stated (the Traffic Act and the Traffic
Regulations) apply to the driving by the defendant of the motor
vehicle on the RAAF Base?
Answer: Unnecessary to answer.

Decisions

MASON C.J., DEANE, DAWSON AND McHUGH JJ. The defendant was charged
under s.19(2) of the Traffic Act 1987 (N.T.) with having driven a
motor vehicle on a public street whilst his blood alcohol concentration
was more than .08%. He was also charged with having driven without a
licence on a public street contrary to s.32 of the Traffic Act and
with having driven on a public street without due care contrary to
reg.95 of the Traffic Regulations (N.T.). The Traffic Regulations are
made pursuant to s.53 of the Traffic Act. The offences are alleged to
have occurred in Anaroo Road or at the intersection of Anaroo and
Billeroy Roads. Both Anaroo Road and Billeroy Road are wholly within
the RAAF Base at Darwin in the Northern Territory.



2. Section 5 of the Northern Territory (Self-Government) Act 1978
(Cth) established the Northern Territory as a body politic under the
name of the Northern Territory of Australia. Section 6 of that Act
gave to the Legislative Assembly of the Territory power, subject to
the assent of the Administrator or the Governor-General, to make laws
for the peace, order and good government of the Territory. Under
s.69(2) of that Act all interests of the Commonwealth in land in the
Territory, other than certain specified interests, were vested in the
Territory. Section 70 provided for the acquisition by the Commonwealth
without compensation of any interest in land vested in the Territory
by s.69(2). The RAAF Base at Darwin, which had been acquired by the
Commonwealth before self-government of the Territory, was re-acquired
by the Commonwealth pursuant to s.70 for the purpose of defence. The
Commonwealth is now the registered proprietor of the land comprising
the Base pursuant to the provisions of the Real Property (Special
Provisions) Act 1979 (N.T.).



3. The question was raised before the stipendiary magistrate
hearing the charges against the defendant whether, assuming the RAAF
Base was a Commonwealth place within the meaning of s.52(i) of the
Constitution, the Traffic Act had any application to the roads in
question. Subsequently the matters being heard by the stipendiary
magistrate were removed into this Court pursuant to s.40(1) of the
Judiciary Act 1903 (Cth) and a case was stated and questions were
reserved for the consideration of the Full Court. The questions
reserved are:

1. Does s.52(i) of the Constitution apply to places in the Northern
Territory acquired by the Commonwealth for public purposes?

2. Is the RAAF Base Darwin a Commonwealth place within the meaning of
s.52(i) of the Constitution?

3. If yes to 1 and 2, do the Acts and Regulations referred to in
paragraph 1 of the Case Stated (the Traffic Act and the Traffic
Regulations) apply to the driving by the defendant of the motor
vehicle on the RAAF Base?



4. Section 52 of the Constitution provides:

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

(i) The seat of government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes:

(ii) Matters relating to any department of the public service
the control of which is by this Constitution transferred to the
Executive Government of the Commonwealth:

(iii) Other matters declared by this Constitution to be within
the exclusive power of the Parliament."



5. In Worthing v. Rowell and Muston Pty. Ltd. (1 (1970) 123 CLR 89)
it was held that s.52(i) gives to the Commonwealth Parliament an
exclusive power to legislate generally with respect to places of the
kind referred to in that provision. As a consequence in that case, New
South Wales building regulations were held to have no application
within the RAAF Base at Richmond in New South Wales, that being a place
"acquired by the Commonwealth for public purposes" within the meaning
of s.52(i). This decision was followed in Attorney-General (N.S.W.) v.
Stocks and Holdings (Constructors) Pty. Ltd. (2 (1970) 124 CLR 262) in
respect of a place acquired by the Commonwealth in New South Wales for
use as a rifle range. In Reg. v. Phillips (3 (1970) 125 CLR 93) the
Court held that, upon the acquisition of a place by the Commonwealth
for public purposes, the effect of s.52(i) was to displace State laws
which had previously applied in that place. In that case the place was
an RAAF Base in Western Australia.



6. As a result of these decisions the Commonwealth Places
(Application of Laws) Act 1970 (Cth) was passed. Section 4 of that
Act applies the laws of a State, whether in force before or after the
commencement of the Act, to Commonwealth places within the State. The
Act has, therefore, no application to places acquired by the
Commonwealth in a Territory. In that regard, it is relevant to note
that the question of the applicability of s.52(i) to places acquired
in a Territory did not arise for consideration in any of the earlier
cases. It is that question which now arises for the first time for
the decision of the Court.



7. It is permissible to have regard to the history of
constitutional provisions in order to establish their object and the
draft Bills considered by the Constitutional Conventions have long
been considered a legitimate aid to interpretation (4 See Tasmania v.
The Commonwealth and Victoria (1904) 1 CLR 329 at 333, 350; New South
Wales v. The Commonwealth (The Incorporation Case) (1990) 169 CLR 482
at 501) . The successive drafts of s.52(i) shed considerable light
upon the object of that provision. Clause 53 of the draft Bill
contained in the Report submitted by the Constitutional Committee on 31
March 1891 and debated at the National Australasian Convention (Sydney)
in 1891, was relevantly as follows (5 See Official Record of the
Debates of the Australasian Federal Convention, (Sydney), 3 April 1891
at 701-702; see also Griffith, Successive Stages of the Commonwealth of
Australia, (1891) at 477) :
"The Parliament shall, also, subject to the provisions of this
constitution, have exclusive legislative power to make all such laws
as it thinks necessary for the peace, order, and good government of
the commonwealth with respect to the following matters:-
...

(2) The government of any territory which may by surrender of any
state or states and the acceptance of the parliament become the seat
of government of the commonwealth, and the exercise of like authority
over all places acquired by the commonwealth, with the consent of the
parliament of the state in which such places are situate, for the
construction of forts, magazines, arsenals, dockyards, quarantine
stations, or for any other purposes of general concern".

It is clear that the origin of the provision in that form was s.8(17)
of Art.1 of the Constitution of the United States which provides:

"The Congress shall have Power ... To exercise exclusive
Legislation in all Cases whatsoever, over such District (not exceeding
ten Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased
by the Consent of the Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings".

The first part of cl.17, relating to the seat of government, is said
to have been prompted by occurrences which took place near the close
of the Revolutionary War when Congress in session in Philadelphia was
surrounded and insulted by a body of mutineers of the Continental Army
and the State did little to assist (6 See Spratt v. Hermes (1965) 114
CLR 226 at 273) . The second part, dealing with places purchased with
the consent of the State, was thought necessary so that the consent of
the State would carry with it political dominion and legislative
authority. This was before the right of eminent domain was recognized
(7 See Kohl v. United States (1875) 91 US 367) , and the view was
that, in the case of land acquired without consent, the possession of
the United States would be simply that of an ordinary proprietor
subject to the legislative authority and control of the State (8 See
Fort Leavenworth Railroad Company v. Lowe (1885) 114 US 525 at 538,
542) .



8. The reasoning which lay behind cl.17 may not have had any
precise application to cl.53, but it is clear from the words "with the
consent of the parliament of the state in which such places are
situate" that the clause was intended to be confined to places
acquired in a State and not to extend to places in a Territory where
the Commonwealth would, in any event, have political dominion and
legislative authority. Territories were, of course, envisaged, though
there were no Territories at the time of federation.



9. The words "with the consent of the parliament of the state in
which such places are situate" remained in cl.53 until the 1898
Convention in Melbourne. At that Convention Mr O'Connor successfully
moved the insertion in the draft Bill of what was to become s.51(xxxi)
of the Constitution, giving the Parliament power to make laws with
respect to the acquisition of property on just terms from any State or
person for any purpose in respect of which the Parliament has power to
make laws (9 See Official Record of the Debates of the Australasian
Federal Convention, (Melbourne), 4 March 1898 at 1874) . Immediately
thereafter, again upon Mr O'Connor's motion, the words "with the
consent of the state in which such places are situate" were deleted
from cl.53 (10 ibid) . After the 1898 Convention the words of the
clause were further simplified so as to result in the provision which
is now s.52(i). The removal of the words "with the consent of the
state in which such places are situate" would seem to be explicable
only by reference to the power of compulsory acquisition given to the
Commonwealth immediately beforehand. At all events, that was the
context in which the amendment was made and, no reference being made to
places in a Territory, it can hardly be thought that its purpose was to
extend the ambit of the clause to places acquired in a Territory. And,
of course, the Convention had agreed to a clause, which was to become
s.122 of the Constitution, giving power to the Parliament "to make such
laws as it thinks fit for the administration and government of any
Territory" (11 See Official Record of the Debates of the Australasian
Federal Convention, (Melbourne), 8 February 1898 at 699) . It also had
before it a clause, previously agreed to, which was to become s.111 of
the Constitution, providing for the surrender by a State and the
acceptance by the Commonwealth of any part of the State whereupon "such
part of the state shall become and be subject to the exclusive
jurisdiction of the Commonwealth" (12 ibid. at 646) .



10. These considerations point ineluctably to the conclusion that,
in referring to the exclusive power of the Parliament to make laws for
the peace, order and good government of Commonwealth places, s.52(i)
is speaking of legislative power which is exclusive of the legislative
power of the States. That was the view expressed by Isaacs J. in Nott
Bros. and Co. Ltd. v. Barkley where he said of the word "exclusive" in
s.90 (13 (1925) 36 CLR 20 at 29) :

"The word 'exclusive' means simply exclusive of State Parliaments,
'exclusive' as opposed to concurrent, 'exclusive' in the sense in
which that word is found in secs.52 and 107. It was not intended to
limit the ambit of Commonwealth parliamentary power but to make that
power exclusive on the subject matter."

That view requires some modification in relation to s.90 and, as a
consequence, s.52(iii) in the light of the decision of the majority in
this Court in Capital Duplicators Pty. Ltd. v. Australian Capital
Territory (14 (1992) 177 CLR 248) , but there is, in our view, no
reason to question it in relation to s.52(i).



11. It is otherwise plain that s.52(i) was intended to provide for
exclusive Commonwealth legislative power with respect to places
acquired by the Commonwealth in a State. To achieve this in an
Australian context there was no need, as there was in the United
States, to think in terms of territorial sovereignty. It was
sufficient that acquisition of property should carry with it
legislative authority without political dominion. In any Territory
surrendered by a State and accepted by the Commonwealth, territorial
sovereignty, or political dominion, would exist under ss.111 and 122
of the Constitution and would, by its very nature, exclude the States.
Nevertheless, in arriving at this situation, the American experience
was instructive and so it is that the terminology of s.52(i) reflects
s.8(17) of Art.1 of the United States Constitution (15 See Worthing v.
Rowell and Muston Pty. Ltd. (1970) 123 CLR at 100, 125; Reg. v.
Phillips (1970) 125 CLR at 100-101, 113) .



12. Section 52(i) provides for the exclusive power to make laws with
respect to the seat of government as well as places acquired by the
Commonwealth for public purposes. Under s.125, the seat of government
is required to be within territory granted to or acquired by the
Commonwealth. There is now a Territory, the Australian Capital
Territory (16 See Seat of Government Act 1908 (Cth), Seat of
Government Acceptance Act 1909 (Cth), Seat of Government Surrender Act
1909 (N.S.W.)) , within which the seat of government has been located,
although its limits have not been precisely determined by the
Parliament. The seat of government is, however, not co-extensive with
the Territory in which it is located nor, under s.125, is it intended
to be. The Parliament must rely upon s.122 for the power to make laws
for the government of that Territory. That power is not made subject
to the Constitution as is the power to make laws with respect to the
seat of government under s.52(i). Moreover, the power to make laws
with respect to the seat of government would seem to be concerned with
its political or constitutional aspects, rather than with the
government of the territory which it occupies. It is not only the
presence of s.122 which indicates this to be so, but also the fact
that, unlike the power under s.122, the power to make laws with respect
to the seat of government is expressed to be a power to make laws for
the peace, order and good government of the Commonwealth. It is,
however, unnecessary for the purposes of this case to seek to work out
the difficult question of the precise relationship between s.52(i)'s
specific reference to the "seat of government" and s.122. It suffices
to say that there is nothing in the inclusion of the seat of government
in s.52(i) as a subject-matter of exclusive legislative power which
would place in question a construction of the provision which confines
places acquired by the Commonwealth to places acquired in a State.



13. In Capital Duplicators Pty. Ltd. v. Australian Capital
Territory (17 (1992) 177 CLR at 279, 289, 290) this Court held by a
majority that s.122 should not be construed as authorizing the
Parliament to create a new legislature for an internal territory with
power to make laws imposing duties of customs or excise or granting
bounties on the production or export of goods. The view was taken that
a legislature created to confer self-government upon a Territory - in
that case the Australian Capital Territory - must be regarded as a body
separate from the Commonwealth Parliament, so that the exercise of its
legislative power, although derived from the Commonwealth Parliament,
is not an exercise of the Parliament's legislative power. Hence, it
was concluded that, since the power of the Parliament to impose duties
of customs and excise and the power to grant bounties on the production
or export of goods are made exclusive by s.90 of the Constitution,
s.122 could not authorize the Parliament to confer those powers upon
the Territory legislature.



14. It was for these reasons that Brennan, Deane and Toohey JJ.
said (18 ibid. at 277) that Isaacs J.'s observation in Nott Bros. and
Co. Ltd. v. Barkley (19 (1925) 36 CLR at 29) that exclusive meant
exclusive of State Parliaments was right as a matter of history, there
being no self-governing territory legislatures at the time, but was not
right as a matter of construction. But in Capital Duplicators Pty.
Ltd. v. Australian Capital Territory the Court was concerned with the
construction of s.90 rather than s.52. Section 90 is not the source of
the legislative powers which it makes exclusive to the Parliament.
Those powers are to be found in s.51(ii) (the taxation power) and
s.51(iii) (the bounties power) and are circumscribed. In the case of
the power to make laws with respect to taxation the power must be
exercised so as not to discriminate between States or parts of States.
In the case of the power to make laws with respect to bounties the
power must be exercised so that the bounties shall be uniform
throughout the Commonwealth. It was the nature of the powers and the
evident intention of other sections of the Constitution to create a
type of internal free trade area embracing the geographical territory
of the Commonwealth, rather than any considerations arising from s.52,
which led the majority to their conclusion (20 Capital Duplicators
Pty. Ltd. v. Australian Capital Territory (1992) 177 CLR at 276) .
There is, we think, nothing in their reasoning which would throw any
doubt upon a construction of s.52(i) which confines places acquired by
the Commonwealth to places acquired within a State. On the other hand,
it would be a curious result, to say the least, if s.52(i), in making
exclusive the power of the Parliament to legislate with respect to
Commonwealth places, were to reduce the scope of s.122 which,
particularly when read with s.111, was clearly intended to confer upon
the Parliament a largely unfettered as well as an exclusive power to
legislate with respect to the government of a Territory. As Capital
Duplicators Pty. Ltd. v. Australian Capital Territory shows, there may
be some qualifications to the power to make laws under s.122 which are
to be found elsewhere in the Constitution but which as yet remain
unidentified but, putting to one side the special considerations
applicable to the "seat of government" (21 ibid. at 273) , there is
nothing elsewhere in the Constitution which would inhibit s.122 so as
to prevent it conferring power upon a Territory legislature to
legislate with respect to Commonwealth places in a territory. And if
s.52(i), which is the source of the exclusive power to make laws with
respect to Commonwealth places, does not confine the Parliament's power
under s.122 because the places referred to are places in a State, then
there is no reason why, in a Territory, a separate legislature should
not have power conferred upon it by the Parliament to legislate with
respect to places acquired by the Commonwealth within the Territory.



15. For these reasons, we would answer the questions reserved as

follows:

1. No.
2. No.
3. Unnecessary to answer.


BRENNAN J. The RAAF base at Darwin in the Northern Territory was
acquired by the Commonwealth for public purposes. The defendant,
seeking to abort a prosecution for an alleged offence under the
Traffic Regulations of the Territory (made pursuant to a law enacted by
the Legislative Assembly of the Northern Territory), contends that the
Regulations do not operate within the base. The contention is founded
on s.52(i) of the Constitution and the decision of this Court in
Worthing v. Rowell and Muston Pty. Ltd. (22 (1970) 123 CLR 89) . If
the base is a place of the kind with respect to which the Parliament
has exclusive legislative power under s.52(i), the question whether the
Regulations operate within the base will turn on the meaning of
"exclusive" in s.52: is the legislative power of the Parliament with
respect to such a place exclusive of the legislative power of the
Territorial legislature or exclusive only of the legislative power of
State legislatures? If it be exclusive of the legislative power of the
Territorial legislature, the Regulations would not operate within the
base. Unlike State laws which are picked up by the Commonwealth Places
(Application of Laws) Act 1970 (Cth) and applied as Commonwealth law to
Commonwealth places in a State (23 Reg. v. Loewenthal; Ex parte
Blacklock (1974) 131 CLR 338 at 342, 346) , the laws of a Territory are
not similarly applied to Commonwealth places.



"Exclusive" in s.52

2. When the Constitution came into force, the only legislative
powers (other than Imperial legislative power) which could have been
exercised concurrently with the legislative power of the Parliament
were the legislative powers of the respective Australian States. That
historical fact suggests that it was only State legislative power that
was to be excluded by s.52 (24 See Nott Bros. and Co. Ltd. v. Barkley
(1925) 36 CLR 20 at 29; but cf. Capital Duplicators Pty. Ltd. v.
Australian Capital Territory (1992) 177 CLR 248 at 277) . However,
there is no apparent policy reason why the matters with respect to
which the Parliament's legislative power was made exclusive by s.52
should be outside the reach of State legislative power but within the
reach of the legislative power of a Territorial legislature. The
distinction, if there be a distinction, between State and Territorial
legislative powers for the purposes of s.52(i) must arise from s.122
which confers on the Parliament the exclusive authority to create a
Territorial legislature and to define the powers of that legislature
(25 Spratt v. Hermes (1965) 114 CLR 226 at 242; Capital Duplicators
Pty. Ltd. v. Australian Capital Territory (1992) 177 CLR at 272-273) .
As the Parliament retains legislative power over both the subject
matter of s.52(i) and the Parliament's creatures, the Territorial
legislatures, it might be said that the Parliament ultimately retains
an exclusive legislative power over "places" and "the seat of
government" situated within the boundaries of a Commonwealth territory.
It is not necessary to decide that question in this case, for reasons
next to be stated. And, as the exclusivity of the legislative power of
the Parliament with respect to the seat of government is a question of
considerable importance to the federal polity (26 See Capital
Duplicators Pty. Ltd. v. Australian Capital Territory (1992) 177 CLR at
273) , it is desirable to leave the issue for determination to another
day.



"Places" in s.52(i)

3. Whatever meaning be attributed to "exclusive" in s.52, it will
not conclude the meaning to be attributed to "places" in sub-s.(i).
The question for determination in this case is whether the reference
in sub-s.(i) to "all places acquired by the Commonwealth for public
purposes" includes places in the Northern Territory.



4. It is noteworthy that the general legislative power that is made
exclusive to the Parliament by sub-s.(i), unlike the particular powers
made exclusive by sub-s.(ii) and the powers referred to in
sub-s.(iii), is defined by reference to geographic area (27 Worthing
v. Rowell and Muston Pty. Ltd. (1970) 123 CLR at 97, 124) , not subject
matter. At the time of federation, the six Colonies covered the whole
of the geographic area of the Commonwealth, but provision was made for
the creation of Commonwealth territories in areas which theretofore
had been included within the boundaries of a State. At that time, the
only concurrent legislative power that might have been exercised over
a Commonwealth place within Australia was the legislative power of the
State within the boundaries of which it lay (28 Quick and Garran, The
Annotated Constitution of the Australian Commonwealth, (1901) at
659-660; see per Isaacs J. in The Commonwealth v. New South Wales
(1923) 33 CLR 1 at 46 and R. v. Bamford (1901) 1 SR(NSW) 337 discussed
in Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR at 94, 116,
118, 129-130) . Thus any place in a State acquired by the Commonwealth
for a public purpose would have been within the area over which the
State exercised legislative power. In the absence of s.52(i), that
place would have been governed by the enacted laws of the State,
subject (by reason of s.109) to any inconsistent law of the
Commonwealth (29 The Commonwealth v. New South Wales (1923) 33 CLR at
46 per Isaacs J.; Reg. v. Phillips (1970) 125 CLR 93 at 111) .



5. The Australian Capital Territory was granted to or acquired by
the Commonwealth pursuant to s.125 which prescribed that that
territory be "in the State of New South Wales" (30 See Capital
Duplicators Pty. Ltd. v. Australian Capital Territory (1992) 177 CLR at
285 per Gaudron J) . Being within the boundaries of New South Wales,
the laws of that State might have applied or might have been thought to
have applied to that territory including, if it were not for s.52(i),
the seat of government that was to be within that territory (31 In
Paterson v. O'Brien (1978) 138 CLR 276 at 280, this Court referred to
the Australian Capital Territory as "vested in the Commonwealth by
surrender or acquisition", but s.125 prescribes "granted to or acquired
by the Commonwealth" as the mode of creating the Australian Capital
Territory. The power of surrender of territory was vested by s.111
only in the Parliament of the surrendering State whereas s.125
contemplated compulsory acquisition of the Australian Capital Territory
by the Commonwealth. And see Sugerman, "The Seat of Government of the
Commonwealth", (1973) 47 Australian Law Journal 344) .



6. By contrast with "places" within State boundaries and the
Australian Capital Territory, the territories which were to be created
pursuant to s.111 of the Constitution could not be subject to the
legislative power of a State. Territories surrendered by a State and
accepted by the Commonwealth pursuant to s.111 were declared to be
"subject to the exclusive jurisdiction of the Commonwealth". They
were taken out of the boundaries of the surrendering State (32 The
Commonwealth v. Woodhill (1917) 23 CLR 482 at 486-487; Worthing v.
Rowell and Muston Pty. Ltd. (1970) 123 CLR at 124-125) . The
Commonwealth acquired, subject to the Constitution, full sovereignty
over a s.111 territory (33 Reg. v. Phillips (1970) 125 CLR at 112;
Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR at 126; and see
Official Record of the Debates of the Australasian Federal Convention,
Melbourne (1898) vol.4 at 259) . Not only did a surrendering State
lose legislative power over the s.111 territory; it lost all
"jurisdiction" over it, including executive and judicial power. To
construe the word "places" in s.52(i) as including areas within a s.111
territory would therefore be otiose, for the exclusivity of the
legislative power of the Parliament with respect to the "places"
referred to in s.52(i) was effected in any event by s.111. But it was
not otiose to provide that "places" within a State or the seat of
government ("within territory ... in the State of New South Wales")
should be subject to the exclusive legislative power of the
Parliament.



7. Having regard to the purpose of s.52(i) and the effect of a
surrender and acceptance of territory under s.111, I would construe
"places" in s.52(i) as being places outside a s.111 territory. The
RAAF base at Darwin is not such a place, for the Northern Territory is
a s.111 territory. Therefore I would answer the questions reserved
for the opinion of the Full Court as follows:

1. No.
2. No.
3. Unnecessary to answer.


TOOHEY J. The defendant, Charles Edward Stewart, has been charged
with three offences under the provisions of the Traffic Act 1987
(N.T.) and the regulations made thereunder. The complainant, Gottlieb
Thomas Svikart, is a senior sergeant in the Northern Territory Police
Force.



2. The first charge is of driving a motor vehicle on a public
street, while having a concentration of alcohol in his blood in excess
of that permitted. The second is of driving on a public street
without due care. The third is of driving on a public street without
being licensed to do so. The "public street" referred to in each of
the charges is wholly within the RAAF Base, Darwin.



3. In the Court of Summary Jurisdiction at Darwin the defendant
submitted that the Traffic Act had no application to streets within
the RAAF Base because the base was a Commonwealth place within s.52(i)
of the Constitution and that only the Parliament of the Commonwealth
could make laws in respect of such places. After the defendant and
the complainant had made submissions to Mr Lowndes S.M., the matter
between the parties was removed into this Court.



4. The Chief Justice stated a case and reserved for the
consideration of the Full Court of the Court questions which, as
amended, read:

"(i) Does s.52(i) of the Constitution apply to places in the
Northern Territory acquired by the Commonwealth for public purposes?

(ii) Is the RAAF Base Darwin a Commonwealth place within the meaning
of s.52(i) of the Constitution?

(iii) If yes to (i) and (ii), do the Acts and Regulations referred to
in paragraph 1 of the Case Stated apply to the driving by the
defendant of the motor vehicle on the RAAF Base?"

There is in fact only one Act involved, the Traffic Act; the
regulations are those made pursuant to that Act.



Status of RAAF Base

5. It is necessary, at the outset, to say something of the status
of the land occupied by the RAAF Base. The base was originally
acquired by the Commonwealth for defence purposes between 1938 and
1942. The circumstances in which the base was acquired were not
detailed to the Court but it was said by the Solicitor-General for the
Northern Territory that, during this period, "there were a large
number of purchases or acquisitions from individuals and
institutions".



6. The Northern Territory (Self-Government) Act 1978 (Cth) ("the
Self-Government Act") provides that all interests of the Commonwealth
in land in the Territory are, by force of the section, vested in the
Territory on the commencing date (34 s.69(2)) . "Territory" is
defined to mean "the Northern Territory of Australia" (35 s.4(1)) .
The Northern Territory of Australia is established as a body politic,
under the Crown, by that name (36 s.5) . However, the Act provides
machinery whereby the Commonwealth, within one year after the
commencing date, may acquire land from the Territory for a public
purpose, without any liability for payment of compensation (37 s.70) .
In essence, that acquisition is effected by notice of acquisition.
Land so acquired is "vested in the Commonwealth" (38 s.70(4)(a)) .
The RAAF Base was acquired by the Commonwealth from the Territory
pursuant to s.70 of the Self-Government Act and the Commonwealth of
Australia is and was at the relevant date the registered proprietor in
accordance with the Real Property (Special Provisions) Act 1979
(N.T.).



The Constitution

7. Section 52 of the Constitution reads:

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

(i) The seat of government of the Commonwealth, and all places
acquired by the Commonwealth for public purposes:

(ii) Matters relating to any department of the public service
the control of which is by this Constitution transferred to the
Executive Government of the Commonwealth:

(iii) Other matters declared by this Constitution to be within
the exclusive power of the Parliament."



8. In the present case it is a law of the Territory which, the
defendant argues, has no application to the RAAF Base as a
Commonwealth place. An examination of that argument requires some
reference to decisions of the Court touching the operation of s.52(i)
in relation to Commonwealth places in the States.



9. In Worthing v. Rowell and Muston Pty. Ltd. (39 (1970) 123 CLR 89)
the Court held that a law of New South Wales regulating the conduct of
persons engaged in building operations had no application to the RAAF
Base at Richmond. That base was owned by the Commonwealth and had been
acquired for the purpose of a base before the law came into force. The
Court applied this decision in Attorney-General (N.S.W.) v. Stocks and
Holdings (Constructors) Pty. Ltd. (40 (1970) 124 CLR 262) to hold that
a law of New South Wales bringing into operation a building scheme had
no application to land acquired by the Commonwealth for use as a rifle
range for the defence forces of the Commonwealth. In The Queen v.
Phillips (41 (1970) 125 CLR 93) the Court held that on the
acquisition by the Commonwealth of land for the purpose of an air force
base, the operation of State laws formerly applicable to that place had
been terminated. Accordingly, an indictment against the defendant
under the Criminal Code (W.A.), charging him with an offence committed
at the base, did not disclose an offence under the laws of Western
Australia.



10. The problems raised by these decisions were met by the enactment
of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the
Application of Laws Act"). Section 3 defines "Commonwealth place" to
mean:

"a place (not being the seat of government) with respect to which the
Parliament, by virtue of s.52 of the Constitution, has, subject to the
Constitution, exclusive power to make laws for the peace, order and
good government of the Commonwealth".



11. Section 4 of the Application of Laws Act sets out a formula for
the operation of State laws in Commonwealth places. For present
purposes it is enough to mention only s.4(1) which reads:

"The provisions of the laws of a State as in force at a time (whether
before or after the commencement of this Act) apply, or shall be
deemed to have applied, in accordance with their tenor, at that time in
and in relation to each place in that State that is or was a
Commonwealth place at that time."

Section 4 applies only to the laws of a State; it has nothing to say
as to the laws of a territory.



The defendant's argument

12. The defendant's argument has the virtue of succinctness. It is
that s.52(i) of the Constitution grants exclusive power to the
Parliament to legislate with respect to Commonwealth places. The
Application of Laws Act does not apply to the Territory. The only
effective legislation with respect to Commonwealth places in the
Territory can be legislation which has been enacted by the Parliament.
Therefore the Traffic Act (N.T.) and regulations made thereunder can
have no application to the RAAF Base, which is a Commonwealth place.



The complainant's answer

13. The complainant's answer can likewise be stated succinctly
although it was the subject of considerable elaboration. Put shortly
it is that s.52(i) has no application to places in the Territory
acquired by the Commonwealth for public purposes and that, if it does
have application, the Commonwealth has empowered the Legislative
Assembly of the Territory to legislate for such places, subject only
to any inconsistent laws of the Parliament. And there are no
inconsistent laws.



14. The complainant's submissions relied upon the reasoning which
Muirhead J. found persuasive in Pryce v. King (42 (1985) 37 NTR 19) .
In that case the defendant was charged with offences under the Traffic
Act (N.T.) in relation to the driving of a vehicle on a public roadway
at Darwin Airport, land which was vested in the Commonwealth. Muirhead
J. distinguished Worthing v. Rowell on the ground that s.52(i) did not
apply to land within a territory and because the Traffic Act was an
exercise of the plenary power granted by the Commonwealth to the
Territory Government under the Self-Government Act, pursuant to s.122
of the Constitution.



The proper construction of s.52(i)

15. The RAAF Base is unquestionably a place which was acquired by
the Commonwealth for a public purpose, namely, defence. However, the
complainant submitted that, as a matter of construction, the power
conferred by s.52(i) applies only to places in a State and not to
places in a territory. This argument had the support of the
Commonwealth and the Australian Capital Territory, both of which were
interveners. The submission contended that an examination of the
Convention Debates shows clearly that s.52(i) was intended to have
operation in the States only.



16. Reference may be made to the Convention Debates in order to
identify the contemporary meaning of language used in s.52(i), and the
subject to which that language was directed (43 Cole v. Whitfield
(1988) 165 CLR 360 at 385; New South Wales v. The Commonwealth (The
Incorporation Case) (1990) 169 CLR 482 at 501) . There is no doubt
that in their consideration of what ultimately became s.52(i) the
framers of the Constitution had in mind Art.1 s.8 of the Constitution
of the United States, which reads:

"The Congress shall have power ... to exercise exclusive Legislation
in all Cases whatsoever, over such District (not exceeding ten Miles
square) as may, by Cession of Particular States, and the Acceptance of
Congress, become the Seat of the Government of the United States, and
to exercise like Authority over all Places purchased by the Consent of
the Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards and other needful
Buildings". (emphasis added)



17. The initial draft of cl.53(2) of the Australian Constitution,
which became s.52(i), reflected closely its American counterpart. It
gave to the Parliament exclusive power to make laws with respect to:

"The government of any territory which may by surrender of any state
or states and the acceptance of the parliament become the seat of
government of the commonwealth, and the exercise of like authority
over all places acquired by the commonwealth, with the consent of the
parliament of the state in which such places are situate for the
construction of forts, magazines, arsenals, dockyards, quarantine
stations, or for any other purposes of general concern." (emphasis
added)

In this form cl.53(2) was adopted at the National Australasian
Convention of 1891 in Sydney and appeared in the draft Bill of that
year.



18. However, at the Convention Debates of 1898 in Melbourne it was
agreed to omit "with the consent of the State in which such places are
situate". A proposal to omit the words "by the surrender of any State
and the acceptance of the Commonwealth" was discussed but then
withdrawn (44 See Official Record of the Debates of the Australasian
Federal Convention, (Melbourne), 4 March 1898 at 1874) . The draft
Bill proposed at the end of the Melbourne Convention was in the form in
which s.52(i) appears in the Constitution, that is, with no reference
to Commonwealth places in States.



19. The drafting history of the provision is too inconclusive to
support the complainant's contention that s.52(i) was to be limited to
Commonwealth places in States only. If anything, the omission agreed
to in 1898 strengthens the argument that s.52 is not confined to
places within the States but rather confers an exclusive power on the
Parliament.



20. The complainant relied on Reynolds v. The People (45 (1869) 1 Colo
179) which held that Art.1 s.8 of the Constitution of the United
States had no application to a federal military reservation within
Colorado Territory because the Territory was an emanation of Federal
Power. But it must be kept in mind that Art.1 s.8 gave Congress

exclusive legislative power over all places purchased by "the consent
of the State" in which it was situated. The deliberate omission of any
reference to "the consent of the State" in the Australian provision
renders the U.S. case of no persuasive value in the present context.



21. Confirmation that s.52(i) is not confined to places within the
States may be found in s.125 of the Constitution. That section, which
is part of Ch.VII Miscellaneous, provides that the seat of Government
of the Commonwealth "shall be determined by the Parliament, and shall
be within territory which shall have been granted to or acquired by
the Commonwealth". Speaking of that section in Paterson v. O'Brien (46
(1978) 138 CLR 276 at 280) , the Court said:

" So far as the Australian Capital Territory is concerned, s.125
contemplated that such a territory, vested in the Commonwealth by
surrender or acquisition, should be geographically in New South Wales.
Thus it was contemplated that in due course the State of New South
Wales should surrender part of its territory to the Commonwealth to
form a Commonwealth Territory, wherein the seat of Government of the
Commonwealth would be sited."



22. Plainly s.52(i), so far as it confers exclusive power on the
Parliament in regard to the seat of government, must be taken as
referring to a place in a territory, indeed only in a territory. It
follows that in a paragraph which deals both with the seat of
government and places acquired by the Commonwealth, there is no good
reason for confining "places" to places in a State.



Purpose of s.52(i)

23. The complainant further submitted that the only purpose of
s.52(i) is to provide the Commonwealth with exclusive legislative
power over places it may acquire for public purposes and to ensure that
the Commonwealth is free from State interference in those places. And,
the submission continued, the Commonwealth already has exclusive
legislative power over a territory by reason of s.122 of the
Constitution. As the interests of the Commonwealth are adequately
protected by the overriding power in s.122, it does not need to rely
upon s.52(i) in the present case and that provision should not be read
as requiring it to do so.



24. But the scope of s.122 may be qualified by other provisions in
the Constitution. In Capital Duplicators Pty. Ltd. v. Australian
Capital Territory (47 (1992) 177 CLR 248 at 272) , Brennan, Deane and
Toohey JJ. approached s.122 on the footing expressed by Kitto J. in
Lamshed v. Lake (48 (1958) 99 CLR 132 at 154. See also Spratt v.
Hermes (1965) 114 CLR 226 at 242 per Barwick C.J) , namely:
"the necessity of adopting an interpretation which will treat the
Constitution as one coherent instrument for the government of the
federation, and not as two constitutions, one for the federation and
the other for its territories".

Their Honours concluded (49 (1992) 177 CLR at 272) :

"It would therefore be erroneous to construe s.122 as though it stood
isolated from other provisions of the Constitution which might qualify
its scope."



25. Capital Duplicators was concerned with the power of the
Legislative Assembly of the Australian Capital Territory to impose
duties of excise within the meaning of s.90 of the Constitution. The
Court held that the term "exclusive" in s.90 makes the legislative
power of the Parliament in respect of duties of customs and excise and
of bounties exclusive of any other legislative power, including one
created pursuant to s.122 (50 ibid. at 277 per Brennan, Deane and
Toohey JJ., 290 per Gaudron J) . In the course of their judgment,
Brennan, Deane and Toohey JJ. made reference to s.52(i) so far as that
provision conferred exclusive power on the Parliament to make laws with
respect to "The seat of government of the Commonwealth". As their
Honours observed (51 ibid. at 273) :

"It would be surprising if laws made by an independent legislature for
the seat of government of the Commonwealth, or executive action taken
pursuant to those laws, could affect the performance of any function
of the government of the Commonwealth, any facility used in the
performance of such a function or any otherwise lawful provision -
legislative or executive - which the organs of that government wished
to make for the performance of any of its functions."



26. In vesting in the Parliament exclusive power to make laws with
respect to places acquired by the Commonwealth for public purposes,
the Constitution evinces no reason why that power should be exclusive
of the States but not exclusive of a territory to which the
Commonwealth has entrusted legislative functions. Section 52(i) must
be seen as conferring upon the Parliament, exclusive of any other
law-making authority, the power to make laws relating to places
acquired by the Commonwealth for public purposes.



The legislative power of the Northern Territory

27. To resolve questions of construction and purpose in this way
does not dispose of the complainant's case. His argument takes the
further step that, in any event, the Commonwealth has empowered the
Legislative Assembly of the Territory, with the assent required by the
Self-Government Act, to make laws relating to Commonwealth places,
subject to any overriding laws of the Parliament.



28. Section 6 of the Self-Government Act empowers the Legislative
Assembly, with the assent of the Administrator or the
Governor-General, to make laws "for the peace, order and good
government of the Territory". There is a power of disallowance in the
Governor-General (52 s.9(1)) .



29. In exercising its legislative function, the Legislative Assembly
is not acting as a delegate of the Commonwealth. This is in contrast
to the capacity of the Parliament to confer upon the Executive a power
to legislate upon some matter within the legislative power of the
Parliament (53 See Victorian Stevedoring and General Contracting Co.
Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73) . What was said by
Brennan, Deane and Toohey JJ. in Capital Duplicators (54 (1992) 177
CLR at 281) in relation to the Australian Capital Territory applies
equally here, namely, that the power to make laws for the peace, order
and good government of the Territory is a plenary power and that the
Parliament intended the Legislative Assembly to have plenary power,
subject to the Constitution. Indeed, speaking of s.6 of the
Self-Government Act some ten years earlier, Wilson J. said (55 The
Queen v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at
279) :
"Section 6 invests the Legislative Assembly with power to make laws
for the peace, order and good government of the Territory, a power
which in my opinion, subject to the limits provided by the Act, is a
plenary power of the same quality as, for example, that enjoyed by the
legislatures of the States. The constitution of the Territory as a
self-governing community is no less efficacious because it emanates
from a statute of the Parliament of the Commonwealth than was the
constitution of the Australian colonies as self-governing communities
in the nineteenth century by virtue of an Imperial statute".

The Legislative Assembly exercises, not the Parliament's powers, but
its own. Once that is understood, many of the arguments relied upon
by the complainant and the interveners fall away.



30. The complainant contends that, relevantly, s.52(i) and s.122 of
the Constitution are in competition. The argument is that when the
Commonwealth acquired the Northern Territory in 1911, the Parliament
was empowered by s.122 to make laws for the government of that
territory, a power which is not expressed to be subject to the
Constitution and which does not depend on s.52(i), so far as places
acquired by the Commonwealth are concerned. It was therefore
competent for the Parliament, so the argument runs, to empower the
Legislative Assembly of the Territory to make laws having operation in
a place acquired by the Commonwealth.



31. In Teori Tau v. The Commonwealth (56 (1969) 119 CLR 564 at 570)
the Court spoke of the source of power in s.122 as "general and
unqualified" and the grant of legislative power by that section as
"plenary in quality". But, as has been said earlier in this judgment,
the scope of s.122 may be qualified by other provisions in the
Constitution. While the Commonwealth may conceivably delegate the
power to legislate in respect of places acquired by it, there has been
no delegation in the present case. The Parliament has conferred on the
Territory plenary powers which, like the powers of the States, are
subject to the Constitution. Being subject to the Constitution, they
are subject to s.52(i), that is, to the exclusive power of the
Parliament to make laws with respect to places acquired by the
Commonwealth for public purposes.



32. The RAAF Base, being a Commonwealth place, and the Application
of Laws Act having no application to the Territory, the Legislative
Assembly lacks power to make laws "with respect to" the base. It is a
consequence of what has been said that Pryce v. King should not be
followed.



33. Since writing these reasons, I have read the judgment of Gaudron
J. in which her Honour entertains serious doubt whether traffic laws
are properly classified as laws "with respect to a place acquired by
the Commonwealth for public purposes". For my part, it is enough to
record that no argument to this effect was addressed to the Court nor
was the authority of The Queen v. Phillips challenged.



34. The questions reserved must therefore be answered:

(i) Yes
(ii) Yes
(iii) No.


GAUDRON J. The facts and the questions reserved for the
consideration of the Full Court are set out in the joint judgment of
Mason C.J., Deane, Dawson and McHugh JJ. and in the judgments of
Brennan J. and Toohey J. The questions require consideration of s.52
of the Constitution which is as follows:

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

(i) The seat of government of the Commonwealth, and all places
acquired by the Commonwealth for public purposes:

(ii) Matters relating to any department of the public service
the control of which is by the Constitution transferred to the
Executive Government of the Commonwealth:

(iii) Other matters declared by this Constitution to be within
the exclusive power of the Parliament."



2. The first question that arises is whether s.52(i) applies to
places acquired by the Commonwealth for public purposes ("Commonwealth
places") in the Northern Territory ("the Territory"). The terms of
s.52(i) are perfectly general and, as a matter of ordinary language,
they clearly extend to places in the Territory. If s.52(i) does not
extend to them, it can only be because of an implication to that
effect. And if s.52 is approached on the basis that it is primarily a
grant of legislative power, there is little scope for that or, indeed,
any implication, for it is well settled that a grant of legislative
power is to be construed according to its terms "without making
implications or imposing limitations which are not found in the
express words" (57 Reg. v. Public Vehicles Licensing Appeal Tribunal
(Tas.); Ex parte Australian National Airways Pty. Ltd. (1964) 113 CLR
207 at 225. See also, FAI General Insurance Co. Ltd. v. Southern Cross
Exploration N.L. (1988) 165 CLR 268 at 284-285, 290; Knight v. F.P
Special Assets Ltd. (1992) 174 CLR 178 at 185, 202-203, 205) .



3. Three of the Justices who constituted the majority in Worthing
v. Rowell and Muston Pty. Ltd. (58 (1970) 123 CLR 89) seem to have
proceeded on the basis that s.52 is first and foremost a grant of
legislative power. Certainly that was the approach taken by Barwick
C.J. who said that "in approaching the construction of this provision
of the Constitution it is well to be reminded that it is a
constitutional power to legislate which we have to interpret" (59
ibid. at 96; see also 113 per Menzies J., 136 per Walsh J) . The
approach taken by Windeyer J. was more tentative. His Honour thought,
at first, "that a law in respect of a place must be supported by some
specific head of power to be found elsewhere in the Constitution and
that all that the section does is to make exclusive the exercise of
that power in respect of the place", but concluded that that was
"probably too narrow a view". His conclusion was based on the
consideration that, although laws with respect to many places,
including post offices, quarantine stations and military barracks, can
be enacted under s.51, "there may be places which are validly acquired
by the Commonwealth for some public purpose not obviously embraced by
any specific head of legislative power or the incidental power" (60
ibid. at 127) . On the other hand, Kitto J., who was in the minority
in that case, was clearly of the view that the primary function of the
second part of s.52(i) was not to add "to the constitutional scheme for
the distribution of legislative powers" but to make explicit what would
otherwise have been implied, namely, that "the Parliament of the
Commonwealth, and it alone, is the intended repository of power to make
any laws that are to be made on the subject of (places acquired by the
Commonwealth for public purposes)" (61 ibid. at 110-111) .



4. There is, in my view, much to be said for approaching s.52 on
the basis that it is primarily concerned with the exclusivity of
powers found elsewhere in the Constitution, not the conferral of power.
And that is so even if there is also scope for its operation as an
independent source of legislative power. On that approach, its
primary purpose is to effect a prohibition in much the same way as
s.51(xxxi) which, although it grants legislative power, effects a
prohibition on the acquisition of property other than on "just terms"
(62 Section 51(xxxi) confers legislative power with respect to) . And
notwithstanding the decision in Worthing v. Rowell and Muston Pty.
Ltd., there is much to be said for the view that, just as a law which
affects property interests "as an incident of, or a means for
enforcing, some general regulation of the conduct, rights and
obligations of citizens in relationships or areas which need to be
regulated in the common interest" (63 Mutual Pools and Staff Pty. Ltd.
v. The Commonwealth (1994) 179 CLR 155 at 189-190. See also Georgiadis
v. Australian and Overseas Telecommunications Corporation (1994) 179
CLR 297 at 307) is not properly characterized as a law for the
acquisition of property within the meaning of s.51(xxxi), a general
regulatory law of the same kind which only incidentally affects
Commonwealth places is not properly characterized as a law with respect
to those places. However, that is of no present relevance as there is
no issue as to the correctness of the decision in Worthing v. Rowell
and Muston Pty. Ltd. and the later cases on s.52 (64 Attorney-General
(N.S.W.) v. Stocks and Holdings (Constructors) Pty. Ltd. (1970) 124 CLR
262; Reg. v. Phillips (1970) 125 CLR 93) . What is relevant is that if
s.52(i) is approached on the basis that it is not primarily a grant of
legislative power, there may be more scope for implication than would
otherwise be the case.



5. The argument that s.52(i) does not apply to Commonwealth places
in the Territory was made by reference to the amplitude of the
Commonwealth's powers with respect to territories. In this regard,
the argument relied on s.111 of the Constitution which provides for
the Commonwealth to have "exclusive jurisdiction" over territory
surrendered by a State (65 Section 111 provides) and on s.122 which
confers legislative power on the Commonwealth for the government of
internal and external territories (66 Section 122 provides) . It was
put that these powers are such that there is no need for any other
power with respect to Commonwealth places in the internal territories
and, in the light of the "exclusive jurisdiction" conferred by s.111
and in contradistinction to the position relating to Commonwealth
places in a State, no need for the legislative power to be made
exclusive. It was also put, by reference to the same considerations,
that s.52 is concerned only with the distribution of powers between the
Commonwealth and the States and that "places" in s.52(i), thus, means
"places in a State".



6. There are two difficulties with the argument that s.52(i) does
not apply to places in the Territory. First, it is clear from s.125
(67 Section 125 provides) that the seat of government must be "within
territory ... granted to or acquired by the Commonwealth" (to which
both ss.111 and 122 apply) and yet the first part of s.52(i) is
expressly concerned with the power to legislate with respect to the
seat of government.



7. The second difficulty with the argument is that s.52(i) was
modelled on Art.1, s.8, cl.17 of the Constitution of the United States
of America (68 Art.1, s.8, cl.17 provides) which, because of the
status of the federating states as sovereign independent states, was
concerned to deal with the position of places purchased in those states
(69 For a comparison with the different status of the Colonies which,
on federation, became the Australian States, see Worthing v. Rowell and
Muston Pty. Ltd. (1970) 123 CLR at 99-100 per Barwick C.J) . Indeed,
the earlier draft of what is now s.52(i) closely followed the wording
of Art.1, s.8, cl.17 and was limited to places in the States (70
Clause 53 of the draft Bill, as debated at the Sydney Convention in
1891, was expressed to confer power on the Parliament with respect to:
"The government of any territory which may by surrender of any
State or States and acceptance of the parliament become the seat of
government of the commonwealth, and exercise of like authority
over all places acquired by the commonwealth, with the consent of
the parliamentof the State in which such places are situate, for
the construction of forts, magazines, arsenals, dockyards,
quarantine stations, or for any other purpose of general concern.

See Official Record of the Debates of the Australasian Federal Convention
(Sydney), 3 April 1891 at 701-702.
The reference to "the consent of the State in which such places are
situate" was later removed at the Melbourne Convention in 1898. See
Official Record of the Debates of the Australasian Federal Convention,
(Melbourne), 4 March 1989 at 1874.)

Whatever the reason which led to the final formulation of s.52(i),
the deletion from the earlier draft of words which would have confined
its operation to places in a State presents a formidable, if not
insuperable, barrier to the implication of an exception to the same
effect. In this regard, it is sufficient to note the rule that a term
cannot be implied in a contract if it appears from the contract that
the parties adverted to the point and deliberately refrained from
dealing with it (71 See Heimann v. Commonwealth of Australia (1938) 38
SR (NSW) 691 at 695 per Jordan C.J. See also Chandler Bros. Ltd. v.
Boswell (1936) 3 All ER 179 at 186-187; Maritime National Fish Ltd v.
Ocean Trawlers Ltd. (1935) AC 524 at 529; Codelfa Construction Pty.
Ltd. v. State Rail Authority of N.S.W. (1982) 149 CLR 337 at 352-354
per Mason J., 403 per Brennan J. Note also the rule referred to in
Heimann ibid. at 695-696 that "(w)here a term is not expressed in a
contract, but would be implied by law, its implication may be excluded
by proof that both parties agreed or intended to exclude the term") .



8. By far the greatest difficulty with the argument that s.52(i)
does not apply to places in the Territory is that an implication is
not to be made lightly and, certainly, not in disregard of the language
of the Constitution. And that is so even if s.52(i) is approached on
the basis that it is not primarily a grant of legislative power.



9. So far as the issue in this case is concerned, there are two
ways in which an implication might be read into s.52(i). The first is
to read "exclusive" as though it were "exclusive of the States but not
the territories". The second is to read "places acquired" as "places
acquired in a State". In my view, both approaches are inconsistent
with the language of the Constitution.



10. It is convenient to consider the meaning of "exclusive" in s.52
by reference to the meaning of the same word in s.90. By that latter

provision, the legislative power to impose duties of customs and
excise and to grant bounties is made exclusive to the Commonwealth. It
was held in Capital Duplicators Pty. Ltd. v. Australian Capital
Territory (72 (1992) 177 CLR 248) that "exclusive" in s.90 is not to
be read as "exclusive of the States" but as "exclusive of the States
and the territories" or, more accurately, that s.90 is to be read
according to its terms. The meaning of "exclusive" in s.90 necessarily
bears on the meaning of s.52, not only because the same word is used in
both provisions but because s.52 and s.90 overlap. That is because
s.52(iii) is concerned with "(o)ther matters declared by (the)
Constitution to be within the exclusive power of the Parliament" which
necessarily includes the imposition of duties of customs and excise and
the granting of bounties.



11. It is rare enough for the same word to be construed differently
in the one document. It is rarer still for the same word to mean
different things depending on whether it is read in conjunction with
one rather than another part of the very provision in which it
appears. Yet that is what is involved if "exclusive" is read as
"exclusive of the States" in s.52(i) for, consistent with the decision
in Capital Duplicators, it must mean "exclusive of the States and the
territories" when read with s.52(iii), at least in its application to
duties of customs and excise and the grant of bounties.



12. There is another reason for not reading "exclusive" in s.52(i)
as meaning "exclusive of the States but not the territories". In
ordinary usage, "exclusive" is a word the precise content of which
depends on the specification of those to whom exclusivity is to attach
or those who are to be excluded. Of course, its content may sometimes
depend on the specification of both. But whatever method is used, the
word "exclusive" is a word that calls out for specification.
Exclusive to whom? Exclusive of whom? It is not a word the content of
which is ordinarily left to speculation or, even, implication. Nor is
it left to implication in s.52. The section specifies to whom the
power is exclusive, namely, the Parliament of the Commonwealth. Given
that specification, to read "exclusive" as "exclusive of the States and
not of the territories" is to give s.52 a new and different meaning,
not merely to imply an exception. That cannot be done.



13. The difficulties associated with reading the phrase "all places
acquired by the Commonwealth for public purposes" as though it were
confined to places in the States are as great, in my view, as reading
"exclusive" to mean "exclusive of the States but not the territories".
First, there is the difficulty to which I have already referred,
namely, the difficulty of making an implication to the same effect as
an earlier draft which, for whatever reason, did not become the final
constitutional provision. And of greater significance, is the
difficulty involved in implying a limitation or exception when the
expression used is "all places acquired by the Commonwealth", not
merely "places acquired by the Commonwealth". The adjective "all"
when used in association with the completely general expression,
"places acquired by the Commonwealth", signifies that there is to be
no exception whatsoever.



14. There is, in my view, another and more fundamental reason why
"exclusive" in s.52(i) cannot be read as "exclusive of the States but
not the territories" and why "places acquired by the Commonwealth"
cannot be read as "places acquired in a State by the Commonwealth".
It is this: although there are differences between a territory and a
State and, although the power to legislate for the government of a
territory conferred by s.122 of the Constitution is different from the
power to legislate with respect to identified topics conferred by
s.51, the internal territories are part of the Commonwealth of
Australia and Australians resident in those territories are part of its
body politic. Whatever be the differences that the Constitution
dictates for the territories and for territorians, there is, in my
view, no basis for implications which exacerbate or add to those
differences. After all and as Kitto J. said in Lamshed v. Lake (73
(1958) 99 CLR 132 at 154) , it is necessary to adopt "an interpretation
which will treat the Constitution as one coherent instrument for the
government of the federation, and not as two constitutions, one for the
federation and the other for its territories".



15. In my view, s.52(i) of the Constitution applies to Commonwealth
places in the Northern Territory. It is thus necessary to consider
the second of the questions reserved which, in effect, asks whether
the RAAF Base at Darwin is a Commonwealth place. Given the manner in
which the Commonwealth came to acquire the Base, as set out in the
judgment of Toohey J., and given the decisions in Worthing v. Rowell
and Muston Pty. Ltd., which concerned the Air Force Base at Richmond in
New South Wales, and Reg. v. Phillips (74 (1970) 125 CLR 93) , which
concerned the Pearce Air Force Base in Western Australia, there can be
no doubt that it is a Commonwealth place.



16. The third of the questions reserved for the consideration of the
Full Court asks, in effect, if the Traffic Act (N.T.) and the
regulations made thereunder ("the traffic laws") apply on the RAAF
Base at Darwin. I agree with Toohey J., essentially for the reasons
that his Honour gives, that they do not. However, that agreement
flows, in large part, from the fact that I am constrained by the
authority of Reg. v. Phillips which decided that s.52(i) precluded the
operation of the Criminal Code Act 1913 (W.A.) ("the Code") within the
Pearce Air Force Base. The traffic laws, like the Code, apply
generally to regulate conduct which must be regulated in the common
interest. As I earlier indicated, I think there is good reason to
approach s.52 in much the same way as s.51(xxxi), particularly when it
comes to the characterization of a law which is said to infringe its
prohibition, and, were the matter free of authority, I would entertain
serious doubt whether the traffic laws are properly classified as laws
"with respect to a place acquired by the Commonwealth for public
purposes".



17. The questions reserved should be answered:

(i) Yes
(ii) Yes
(iii) No