Svikart v Stewart

[1993] HCATrans 368

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl of 1993

B e t w e e n -

GOTTLIEB THOMAS SVIKART

Complainant

and

CHARLES EDWARD STEWART

Defendant

Case Stated

MASON CJ
BRENNAN J

DEANE J

DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 DECEMBER 1993, AT 10.21 AM

Copyright in the High Court of Australia

Svikart(3) 1 7/12/93

MR D.M.J. BENNETT, OC:  May it please the Court, I appear

with my learned friend, MR A. ROBERTSON, for the

defendant. (instructed by Withnall Cavanagh & Co)

MR T.I. PAULING, OC, Solicitor-General for the Northern

Territory:  May it please the Court, I appear with

my learned juniors, MR G.R. NICHOLSON and

MS R.J. WEBB, for the complainant. (instructed by M.D.S. Harrison, Solicitor for Northern Territory)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friend, MR C.R. STAKER, in support of the complainant, intervening on behalf of the

Attorney-General of the Commonwealth. (instructed

by the Australian Government Solicitor)

MR K.J. CRISPIN, OC:  May it please the Court, I appear with

my learned friend, MR D.R. JARVIS, on behalf of the

Australian Capital Territory to support the

complainant. (instructed by the ACT Government

Solicitor)

MR PAULING:  May it please the Court, before Mr Bennett

commences, the comprehensive submissions filed on

behalf of the complainant state the questions in a

way slightly different to that which Your Honour
the Chief Justice reserved for the consideration of
the Full Court. I have discussed the matter with
my learned friends. There is no objection to the
questions being rephrased by the addition in effect
of a more specific first question. It occurs at

the very commencement of our written submissions

and I would seek the leave of the Court to have

these reformulated questions substituted. The

document is called the Outline of Submissions for

the Complainant.

MASON CJ: Mr Solicitor, I am prepared to restate the

questions in the form that appears in paragraph 1

of the outline of submissions for the complainant.

MR PAULING:  Thank you, Your Honour.

MASON CJ: Yes, Mr Bennett.

MR BENNETT:	Your Honours have a copy of the outline.
MASON CJ:	We have.

MR BENNETT: Might I hand to the Court an additional

document which sets out in summary form the way we

deal with the principal matters put against us.

There are two housekeeping matters before I begin.

The first is that it has been agreed between the

complainant and ourselves that there should be no

Svikart(3) 2 7/12/93

order for costs in any event in these proceedings.

The only qualification to that, I suppose, is that

if the interveners caused the matter to extend

beyond the day, there may be orders sought against

them.

The second matter is that - I take it

Your Honours have what I should now call Capital

Duplicators (No 1) in the Commonwealth Law Reports,

rather than the other reports which were the only

ones available when the submissions were initially

prepared. It is reported in 177 CLR, at page 248.

MASON CJ:  You can assume we have it, Mr Bennett.

MR BENNETT:  Yes. Your Honours, the submission we make in-

chief is very short and very simple and it is a matter of putting together two principles which

have been established by this Court. The first

principle is that of the Commonwealth Places cases:

Worthing v Rowell, Attorney-General v Stock and

Holdings and Reg v Phillips in which it was held

that the effects of the exclusivity provisions of

section 52(i) is to preclude State law, even a

general State law, of any kind or criminal law or

any kind, from applying to Commonwealth places

within a State.	I do not need to go to those
authorities.

That problem was solved by the

Commonwealth Places (Application of Laws) Act, which was enacted in the same year as those three cases, in 1970, and that extends the provisions of

State law to places acquired by the Commonwealth.

There may be an interesting question, which it is

probably not necessary to resolve in this case, as

to whether that operates as a delegation or as an

adoption; it uses the words "provisions", but of

course it relates to future legislation.

Your Honours do not need to examine in this case

either the validity of that provision or the manner

in which it works. The important point about that

legislation for present purposes is merely that it

has never been challenged and it does not apply to

Territories.

At the time of those decisions there were, of course, no self-governing Territories. The problem

did not arise in relation to non self-governing simple delegated laws of the Commonwealth and

therefore there was nothing inconsistent with the

exclusivity provision. The principle of

Capital Duplicators (No 1) was simply not invoked.

All that is done in this case is to put the two

principles together to say that now that it is

appreciated that contrary to the views formally

Svikart(3) 3 7/12/93

held, a self-governing Territory does not operate
by way of delegation, but because of the

English cases of Apollo Candle and The Queen

v Burah, as applied by this Court in Capital

Duplicators (No 1), it is not a delegation,

therefore one has immediately a problem in relation
to section 52(i) and the principles of

Worthing's case and the other two cases, in our submission,simply apply to what we might loosely

call Commonwealth places within a self-governing

Territory.

Really, it is as simple as that. A defence

base clearly falls within section 52(i).

Reg v Phillips was itself a defence based case.

There is also a New Zealand decision which I have

referred to on page 3 of the submissions.

Unfortunately the reference is not complete.	I
will not be taking Your Honours to that case,	but I
will give Your Honours the correct reference.	It
is at first instance in (1952) NZLR 596.	The

reference which I have given is to the appeal which

simply affirms it without discussion, and the 157

should be 137. I apologize for that error. All

that case says is that a military base on which

soldiers are housed but on which no military

activities take place, is nevertheless a public

purpose, a fairly obvious proposition. But, in any

event, Phillip's case seems to have established

that in this Court.

That really is the argument in-chief. It is

convenient, however, unless Your Honours prefer me

not to do it in this way, to express fairly briefly

what our answers are to what we might call the

defence arguments, although raised by the
complainant and the interveners in opposition to

what I have put. But what I have put really is the

case.

Turning therefore to my additional submissions

document, the first argument which is put against

us is that placitum 52(i) was not intended to apply

to Territories -

MASON CJ:  Mr Bennett, it seems to me you have a choice

either of confining your answers to your reply or

of, as it were, developing all your answers now.

MR BENNETT:  If Your Honours are concerned I would be

splitting my case, I will sit down now and deal

with it - - -

MASON CJ:	It looks to me as if that is precisely what you were embarking upon.
Svikart(3)	7/12/93
ME BENNETT:	May it please the Court, those are my

submissions.

GAUDRON J: Before doing that, however, there is just one

question that I think does not involve splitting

your case. Do I read paragraph 5 of the case

stated correctly if I assume that the land is

compulsorily acquired in 1978 and before self-

government?

MR BENNETT:  Your Honour, what occurred was, under

section 69 and 70 of the Northern Territory

(Self-Government) Act there was a double procedure

envisaged in relation to Commonwealth places in the

Northern Territory. What was to happen was the

first step under section 69 was that they all

became Territory land, invested in the Territory,

momentarily as it were.

Then under section 70 certain Commonwealth

places which were declared, including the RAAF Base

in Darwin, then were reacquired by the

Commonwealth. Therefore, the answer to

Your Honour's question is, "Yes".

DAWSON J: Well, who was the land acquired from?

MR BENNETT:  From the Territory, Your Honour.

DAWSON J: Which is the Commonwealth.

MR BENNETT:  Which is the self-governing polity established

by the Northern Territory (Self-Government) Act.

GAUDRON J: It did not exist before self-government as an

army base?

MR BENNETT: Yes, it did. Before self-government it was a

RAAF base in the Territory.

DAWSON J: So, in substance, what it is that it retained the

land which it had already had?

MR BENNETT: Yes, Your Honour, but it did so through the

legal motions of a transfer and retransfer.

DAWSON:  Does that mean it had acquired it under section 52?

MR BENNETT:  Yes, Your Honour. The language used is the -

section 69(2) provides:

All interests of the Commonwealth in land

in the Territory, other than interests

referred to in sub-section (5) -

which are specific ones which we are not concerned

about -

Svikart(3) 7/12/93

are, by force of this section, vested in the

Territory on the commencing date.

Then section 70 says:

The Minister may, from time to time,

recommend to the Governor-General that any

interest in land vested or to be vested in the

Territory by sub-section 69(2) (including an

interest less than, or subsidiary to, such an

interest) be acquired from the Territory by

the Commonwealth under this section.

So, the language used is the language of

acquisition.

DAWSON J:  Maybe, but it never left - if "ownership" is the

right word - the ownership of the Commonwealth.

MR BENNETT:  I would submit it did, Your Honour. I would

submit that having established a self-governing

polity with power to makes laws for peace, order

and good government, that polity is a legal entity

which can acquire and transfer property and have

property acquired from it. Indeed, section 5

provides that:

The Northern Territory of Australia is hereby established as a body politic under the Crown

by the name of the Northern Territory of

Australia.

So there is a new entity from which property can be

acquired and that, we submit, is in any event

consistent with the Capital Duplicators approach to

a self-governing territory.

DAWSON J:	What is the new entity.
MR BENNETT:	The Northern Territory of Australia,

Your Honour. It is an entity; it is a body politic

and it is somewhere between a non-self-governing
Territory and a State, with a range of rights and

liabilities and a range of constitutional

requirements which the Act describes.

DAWSON J:  The Constitution only knows Territories and

States.

MR BENNETT: Yes, Your Honour. It only knows Territories

and States but that does not mean that there cannot

be different classes of Territory. For example,

there are external and internal Territories for
certain purposes. There are Territories acquired
in the three different ways prescribed by
section 122. There were specific provisions in

relation to so much of the Australian Capital

Svikart(3) 6 7/12/93

Territory as represents the seat of government.

The fact that the Constitution only knows the

concept of Territory, does not mean that there
cannot be different categories of Territory, and

does not mean in particular that there cannot be a

transfer of property - - -

DAWSON J: Perhaps I could put it this way: the Constitution

only knows two types of body polity; the States and

the Commonwealth.

MR BENNETT:  Your Honour, I suppose ultimately what one is

talking about is subclasses or subtypes.	The
Constitution.names only two, but different

characteristics may nevertheless attach to

different subclasses of the genus Territory and

external and internal is one example; seat of

government and non-seat of government is another,

and the three categories in section 122 is another.

They are all Territories but that does not mean

that they are incapable of having different

characteristics.

DAWSON J:  It still means in the end that the land which was

Territory land remains Territory land.

MR BENNETT:  No, Your Honour. In this case we do not have

to determine whether land which was Territory land

prior to self-government was also Commonwealth land

in a relevant sense. That is perhaps a separate
issue. All we need to look at here is a

Commonwealth place within the Territory which was owned by the Commonwealth in the same way as it

owns a Army or RAAF base in New South Wales, which

then, by virtue of this statute, is vested in a

body politic established under this Act, or perhaps

re-established under this Act, and then divested

from it.

DAWSON J: Which is nothing more than a Territory.

MR BENNETT: It is a different type of territory.
DAWSON J:	You do not suggest for one moment that when State

land is surrendered by the State as a Territory to

the Commonwealth that the Commonwealth acquired a

place when the Northern Territory was - - -

MR BENNETT: No, I do not. That is clear, in our respectful

submission. There may be some special

qualifications to that in relation to the seat of

government but, leaving aside the special status of

that, whatever it is, which involves some different

considerations, the answer to Your Honour's

question is no. May it please the Court.

MASON CJ:  Mr Solicitor for the Northern Territory.

Svikart(3) 7 7/12/93

MR PAULING:	Your Honours, on the question of the history of the RAAF base and of acquisitions, could I take
Your Honours to the judgment of Justice Muirhead,
then the acting Chief Justice in Pryce v King,
37 NTR 19. The particular passage I want to refer
to commences at page 20 at line 20, and there His Honour sets out down to the bottom of that page
matter concerning the history of the RAAF base and the acquisitions that were notified in the
Commonwealth Government Gazette. That history
accords with the matters set out in the case stated and is a succinct statement of the background of the matter and one, with respect, which we adopt.

Your Honours, there are two elements, however,

to the claim and the argument we put forward.	The
first is of course that section 52(i) has no
application to land in Territories at all.	The

second is that if it did, then, unlike Capital

Duplicators (1) and the exclusive power under section 90, it would be permissible for the Federal

Parliament to delegate by granting self-government,

in the plenary terms in which it has, its power to

make laws with respect to places in the Territory.

It is the first of those arguments that I want to

direct my major attention to. Indeed, in Pryce v

King which concerned the same RAAF base and the

same sort of conduct, that is a breach of the

Traffic Act, His Honour at page 23, commencing at

line 15, had this to say:

Whilst the Northern Territory

(Self-Government) Act certainly granted
plenary powers to the Territory government, it
did not alter the status of the Northern

Territory as a Territory qua the Constitution, ie, this Territory did not assume the status

of a State in the federal system -

and he refers to Re Kearney; Ex parte Japanangka

per Justice Brennan.

The Act and the Northern Territory

Government's subsequent legislative powers

were brought into effect by reason of s 122 of

the Constitution. Section 52(i) of the
Constitution applies to Commonwealth places

within State territory, not to land within a

Territory as such. The Traffic Act was an

exercise of the plenary power granted by the
Commonwealth Parliament to the Territory

Government to make laws for peace, order and good government and had its source in the

grant of power by the Commonwealth. The

s 52(i) argument does not, in my opinion,

apply.

Svikart(3) 7/12/93

For the same reasons, we say that in this

case, despite what might be seen as some form of

sea change from Capital Duplicators in relation to
the legislative body established on self-government
not being a delegate in the relevant sense of a

Commonwealth Parliament, the primary question is to

look to see whether 52(i) was ever intended to, and

does as a matter of construction in its place in
the Constitution, have any amplication to

Territories. If I could then take you to our written submissions.

DAWSON J:  Mr Pauling, just before you do that, one short

question:	who was the land acquired from between
February 1938 and February 1942?	Was it private
owners?

MR PAULING:  I believe some of it was in private hands,

Your Honour, yes, but I know we have got a volume

here that is a complete detail of all the doings.

DAWSON J:	When you are ready.
MR PAULING:	I can give you a short answer then, I believe.

The written submissions that we have put forward

restate, as the Court has permitted the questions,

and focuses primary attention on the first

question, that is the section 52(i) of the public purposes, and the alternative question is
Constitution apply to places in the

set out. We say that the proposition in

paragraph 2 is correct, and I am looking here at

paragraph 4 of our submissions, because of the

intention disclosed in the convention debates, and

that was that the exclusive Commonwealth

legislative power over Territories was to be

derived from the Territories power in the

Constitution, now section 122, and not from the

power in the Constitution as to Commonwealth

acquired places.	We set out the detail there and
attached to our written submissions are the
particular convention debates.	I do not propose to

read those to Your Honours but I do draw attention

to the fact that there is a page missing and I have

had that, I believe, distributed. It is page 258

of 28 January 1898.

The upshot of the debates looked at,

particularly in its early form, is analysed, or

summarized rather, in a document headed Convention

Debate, summary by my learned junior Mr Nicholson,

and that, in short order, sums up what occurred.

The original clause which drew attention to the seat of Government and to all places purchased by

the consent of the legislature of the State in

which the same shall be for the erection of forts,

Svikart(3) 7/12/93

magazines, dockyards and other needful buildings

came into the convention debates directly from the equivalent or from the United States constitution,

and was borrowed at first holus-bolus from

Article 1, section 8, clause 17.

It underwent change in the process of the

debates for a number of reasons. One of the

reasons was that the need to have a power of

compulsory acquisition was debated and the need to

not be at the whim or mercy of a State Parliament.

Secondly, the question as to whether or not the

seat of Government ought to be in a federal

Territory, as in the United States situation, or

not in a federal Territory as in the Canadian

situation, was a matter which was opened to debate.

But thirdly, as matters were read down, eventually
the terms "by the consent of the legislature of the
State" were taken out for a particular reason. Can

I perhaps take you to the last page of our

submissions, which is page 1874. It is dated

4 March 1898 because when the flow of the debate in

the convention is seen, one sees that out of the
blue:

I beg to move the insertion of the following new sub-section:

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.

And he goes on:

Some question has been raised as to whether

the Commonwealth has the power inherently of

acquiring property under just terms of

compensation; that is to say, whether it is

not driven to bargain and sale only. It is

quite clear that there must be a power of

compulsorily taking property for the purposes
of the Commonwealth.

Mr Fraser. - Certainly.

Mr O'CONNOR. - And this clause is framed to

provide for that.

Mr Fraser. - Are the terms to be stated?

Mr O'CONNOR. - No, you do not want to state

the terms in the Constitution. Of course an

Act will have to be passed by the Commonwealth

Parliament elaborating this enactment, and no

doubt proper provision will be made in that

Act for the method of acquiring lands, and the

Svikart(3) 10 7/12/93

mode in which lands shall be obtained for the

purposes of the Commonwealth.

The new sub-section was agreed to.

And then we get to:

Clause 52, as amended, was agreed to.

Clause 53, sub-section (2):- The government of any territory which, by the surrender of any

which such places are situate, for the public

state or states, and the acceptance of the
Commonwealth, becomes the seat of government
of the Commonwealth, and the exercise of like

authority over all places acquired by the

purposes of the Commonwealth.

Mr O'CONNOR (New South Wales). - I beg to move -

That the words from "with the consent of the

state in which such places are situate"

(line 7) be struck out.

The object of this amendment is to put in the most general possible terms the purposes of

the clause. The clause gives a right of

government for certain purposes to the

Parliament, and it is just as well that it

should be stated in such general terms that it

will not be possible that any purpose which we

do not think of now will be omitted.

The amendment was agreed to.

So that the fact that up until then it was plain

enough that what was being dealt with was land and

estate acquired by the consent of the State, came to its present form, but for a reason unconnected

with any idea, we submit, that it might also apply

or could apply to Territories.

BRENNAN J:  Was there any contemplation at this time of the prospect of internal self-governing Territories?

MR PAULING: There certainly was debate about it, yes,

Your Honour, and the Northern Territory of

South Australia at that stage, as it appears in covering clause 5, was spoken of as a place that

would, and in the future, be acquired; it was in
contemplation that there were three possibilities:

the Northern Territory of South Australia; Fiji and

British New Guinea.

BRENNAN J: Self-governing?

Svikart(3) 11 7/12/93

MR PAULING:  I cannot, with any confidence, tell Your Honour

that it was said to be self-governing at that

stage, although there is discussion and debates

about this concept of tutelage of Territories being

advanced. I will have to get my learned junior to

find the phrase; somebody calls it a felicitous

phrase or a useful phrase, something or other, that

the Territories would be in a state of tutelage

until brought into statehood, so I suppose with

that in prospect, yes, the answer must be that the

Territories must be seen to be self-governing at

some stage if they are to be brought into

statehood, but I will get my learned junior to find

that passage.

It is 28 January 1898, which is part of the

submission before Your Honours.

BRENNAN J:	What does your argument lead to, Mr Solicitor, that if the Northern Territory becomes a State,
that then the Commonwealth Places Act will take its operation?
MR PAULING:	Yes.

BRENNAN J: Assuming that the Commonwealth Places Act

automatically extends then to the Northern

Territory, otherwise the old cases would apply and what was previously within Territory control would

leave Territory control?

MR PAULING: That is correct. That would be one of many

consequences of the Northern Territory becoming a

State. I mean, if the Commonwealth Places

(Application of Laws) Act is ambulatory in its terms, then it would not need amendment if the

Northern Territory fitted the description of State.

If it was not ambulatory then the Commonwealth

would need to legislate to apply it.

DAWSON J:  But what would happen would be that section 122

would cease to apply.

MR PAULING: Yes. The page is 257, 28 January 1898.

Mr Deakin, in the middle of the left-hand column.

It was after he had moved:

That the words "by the surrender of any

state or states and the acceptance of the

Commonwealth" be omitted.

One point I wish to put to the leader of the Convention has partly been anticipated,

but not wholly. This clause - clause 53 -
defines exclusive powers which are given to
the Parliament, and a later clause,

clause 115, to which the leader of the

Svikart(3) 12 7/12/93

Convention has alluded, refers also to an exclusive power of legislation which is to be

possessed by the Federal Parliament for the
provisional government of territories, or, as they have been happily termed, embryo states.

What I am at a loss to discover -

and, then you go down to Mr Barton:

It was thought advisable to leave that

provision regarding territories where it is -

under the head of "new States" - because it

refers particularly to that kind of territory

which afterwards develops into a new state.

And then they are arguing as to whether it ought to

be in with the "exclusive powers", that is 52, or

not, or whether it can stay where it is in "new

States" and it eventually stayed where it is, and

became section 122.

I might say that in terms of this question as

to where, for example, the seat of government might

be, it was not until after the convention had

completed, and the bill failed to get a majority in

New South Wales, that the arrangements that are now

in section 125 of the Constitution came into being.

That is, specifying that it needed to be in New

South Wales and at least 100 miles from Sydney.

They were not part of the convention debates,

although Mr Lionel Lyne - and I am not quite sure
how to pronounce his name - if one reads the

debates about where the seat of government ought to be, it went on endlessly saying it had to be in New

South Wales, much to the annoyance and sometimes

amusement of other members of the convention.

The upshot of all of that is that when one

looks, historically, at the nature of the things

that section 52 was directed at, firstly, it picked

up notions that came directly from the American

Constitution which were unnecessary and

inappropriate to the circumstances obtaining in Australia at the time of the convention debates.

That point is made several times by members

of this Court in earlier cases, pointing out the

significance of the difference between the fact

that the sovereign bodies that form together to

become the United States had all severed their

allegiance to the British Crown, and it came about

as a compact between the people. Whereas, all of

the colonies that later formed the Federation owed

their allegiance to the Crown, and the compact came

about as a result of an Imperial Act. That has

been treated as being significant in terms of

understanding why some parts of the American

Svikart(3) 13 7/12/93

Constitution, whilst appropriate to the their

arrangement, are not appropriate here.

For example, the reason why express provision

as to the seat of government was included was

because the early Congress moved about and they

were subjected to abuse and taunts and so on by a

rebellious soldier in Pennsylvania, as a result of

which they went to New Jersey, and then decided

that they were not going to be forced to move

around because the States could not protect them,

and so they needed a protection in respect of the

place where they sat the seat of government, and

that is how the 10 square miles that forms that

part of the district of Columbia came about. One

sees the very limited nature of the places to be
acquired in the original provisions of the American
clause, mainly related to external threats to the

security of those States that then formed the

Union, because you had dockyards and arsenals,

forts and the like.

So firstly, in paragraph 4 then, we say that

the debates historically lead to a view that 52(i)

is somewhat anomalous, but in any event there is no

basis on which we can see it as applicable in its

terms to Territories, and we refer there to

Reynolds v The People, 1 Colo 179, and the passage

to which we draw attention in that case - I think

Your Honours have a separate volume which contain

the American cases and the legislation. I merely

draw attention to page 180, two-thirds of the way

down:

In terms, this clause refers to places

purchased by the consent of the legislature of

a State, and therefore within a State, and we

are not aware of any instance in which it has

been applied to a place not within the limits

of a State.

And then on the next page, line 3:  It seems that this clause of the

constitution has no application to the

territories.

And refers to Story:

Upon the general proposition, however,

that congress has legislative authority in the

territory, no doubt can be entertained. When

we consider that the territorial government

was established by act of congress, we are

ready to concede the jurisdiction of the

federal government.

Svikart(3) 14 7/12/93

So that, whilst we do not suggest that the

American situation or the cases in relation to the

clauses are determinative of the issue, they fill

in the background and expose the way in which they

have been treated in America and there are some

parallels to be drawn and we draw them in our

written submissions.

We say in 4(b) the purpose of 52(i) is both to

provide the Commonwealth with exclusive general

legislative powers over such places as it might

acquire for public purposes, possibly even if those

purposes are not otherwise within Commonwealth
power 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 to be part

of a State.

Early on it was thought in Commonwealth v NSW

by Justice Higgins that 52(i) could only apply to

places that were surrendered by a State and became

a Territory. That was rejected in favour of the

view of Justice Isaacs to which we have drawn

attention at page 46. I will not read the passage.

That is picked up and discussed in Worthing v

Rowell & Muston, 123 CLR 89. Perhaps if I take you

very briefly to that. The particular passage I

first want to refer to is from the judgment of

Chief Justice Barwick at 97 where it picks up a

point made by Your Honour Justice Dawson on a

question of my learned friend that when the

Commonwealth acquired the Territory from South

Australia, it did not acquire a place; it acquired a Territory. It did not acquire a place as such because it acquired the political and sovereign rights in respect of it, it acquired all the

rights.

In our submission, in contradistinction to the

American situation, it may be seen that there are

differences there as to whether a place is acquired

with or without the consent of a State as to

whether sovereignty goes with it. But here in the

middle of the page the Chief Justice, referring to

Battle v United States:

It seems to me that the word "place" is used

ins 52 somewhat in contradistinction to a

territory acquired by the Commonwealth to

which s 122 has relevance. The difference between a place and a territory is perhaps

more than one of degree or extent. A

territory of necessity is comprised of an area of land usually of considerable extent but, as well, in general already subject to some

political arrangements. But this distinction

Svikart(3) 15 7/12/93

is not necessarily, in my opinion, definitive
of any difference in the extent of the

relevant legislative power of the

Commonwealth, a matter into which I find it

unnecessary to go for the resolution of the

present matters.

DAWSON J:  Does not the distinction really become one between sovereignty and ownership? You acquire

Territory, you acquire sovereignty over the land.

You acquire a place in a State, you acquire

ownership but something else is needed to vest

sovereignty and you find that in section 52.

MR PAULING: Yes, Your Honour, that is one of the principal

propositions we make in our submission, that

relevantly a starting point in this is to say that

when the Commonwealth accepted the Territory, it

acquired all the sovereign interests in it but when the Commonwealth, by the process to which attention

has been drawn under the (Self-Government) Act

acquired the land, it is questionable whether that

for those purposes - - -

DAWSON J: It already had sovereignty. It did not need

section 52. That is the point, is it not?

MR PAULING: Yes, it already had complete power to make any

laws it liked in respect of that place or that area

of land. There is no doubt about the width of

section 122. But what it did really as part of an

arrangement with self-government in order to

regulate how land was managed, it got itself on the

Territory register for an estate in fee simple in

respect of particular areas of land.

TOOHEY J: But before it did that, it had to divest itself

in some way of the land which it already owned,

which it did through the (Self-Government) Act

presumably.

MR PAULING: Yes, Your Honour.

BRENNAN J: Mr Solicitor, I am not sure that I am following

this argument adequately. There is no challenge,

as I understand it, to the existence of

Commonwealth power over this place.

MR PAULING:	No.
BRENNAN J:	The question is the absence of Territory power;

is that not so?

MR PAULING: That is so.

BRENNAN J:  So that the question is not whether section 52

confers a power, but whether section 52 makes

Svikart(3) 16 7/12/93

whatever power it has exclusive. So we are

concerned with the negative not with the positive.

MR PAULING: Well yes; we are concerned with a proposition

as to whether the power available under 122 is to

be read down in such a way that the Commonwealth

could not authorize a self-governing Territory

legislature to make laws with respect to

Commonwealth places.

BRENNAN J:  Why should it be put that way? Why is it not

simply a question of whether, this being a

Commonwealth place, no other legislature has power

to make laws with respect to it.

MR PAULING: That is certainly a way of putting the

question.

BRENNAN J: Is it not the only relevant way?

MR PAULING:  We would start with the proposition that

section 122 is so wide that it would authorize the

Commonwealth to create the self-governing body that

it did, and that self-governing body, having
plenary power can makes laws in respect of the

whole of the Northern Territory without exception.

BRENNAN J:  The question is whether 122, containing as it

does the power to create a subordinate legislature,

is wide enough to ensure that that subordinate
legislature can exercise concurrent power over a

Commonwealth place, and that turns on section 52.

MR PAULING: Yes, it does.

BRENNAN J:	We are concerned with the negative then. section 52 carve out of 122 an area which 122	Does
cannot touch?

MR PAULING: Yes,I agree with what Your Honour is saying.

In trying to develop the proposition that we do

breadth of power with which the Court is familiar".	seek to develop, we seek to say, "Well, here is the	I mean, one does not have to read from Spratt v
Hermes or Teori Tau or any of those cases to assert
that proposition. We need to then, we say, ask
whether 52(i) logically applies to a Territory at
all.

DAWSON J:  And what you really say, it only applies to the

acquisition of places in the States.

MR PAULING: Exactly, and what we have sought to do is try

and develop that and say, "How did that get into the Constitution in the form it is? What is its

history; how did it get there?", and we have set

Svikart(3) 17 7/12/93

that out and, with respect, I do not propose to read it. It is there and it speaks for itself.

The next question is, "All right, we know how

it got there. Is there any logical imperative in

the way the Constitution is structured when we
seek, as a point of construction to find out its
place, can it apply in respect of 122, or are they

separate?" Is there any reason of logic or, in the

background, to the way things came about, to say

when a Territory is accepted, then there ought to

be two regimes in respect of it, that is, to the

extent that there are Commonwealth places, only the
federal Parliament can legislate, either directly

or indirectly. In respect of other places, well

you can create a self-government body to legislate

and the conclusion, obviously, we seek to bring the

Court to is that 52(i) does not speak to 122 at

all.

DAWSON J:  You really say that section 52(i) was necessary

when you acquired land in a State, if it is land,

because complete legislative jurisdiction did not

exist over that land for the Commonwealth. It was

quite unnecessary in relation to the Territory

because complete legislative jurisdiction did

exist.

MR PAULING:  Yes, that is the major thrust of our - - -

DAWSON J: That is what section 111 says.

MR PAULING:	Yes, it gives exclusive jurisdiction.
DAWSON J:	And that must mean legislative as well as anything else?

MR PAULING:  Yes it does. Certainly that is the way those

words have been interpreted consistently. But one

reads 111 with 122 and that then confirms the

proposition that the only body that can make laws

with respect to the Territory is the Parliament, amd the next question is, if we are wrong in the

argument as to whether 52(i) has got any

application to Territories, whether it is

permissible that the legislative body set up under

self-government, not being a delegate, can none the

less concurrently exercise what is an exclusive

power of the Parliament, whether it is something

that can be handed down. And we would then, as we

do in our written submissions, draw attention to

significant differences between the question that

arose in Capital Duplicators (No 1), section 90,
which involved individual rights. It was not a
case dealing with the separation of powers dealing

with the separation of powers between the federal

body and the States, whereas 52(i) is a section

Svikart(3) 18 7/12/93

that - it is not dealing with individual rights, it

is dealing with the separation of powers.

McHUGH J: But is the difficulty with your argument, that it

requires you to disregard the terms of section 52?

Your argument is that the Parliament does not have

exclusive powers to make laws with respect to all

places acquired by the Commonwealth.

MR PAULING:  No, Your Honour, we say it does have exclusive

power in respect of land acquired in States and

that 52(i) ought to be - - -

DAWSON J:	And it has exclusive power in relation to Territories, legislative power, under section 111.
MR PAULING:	Or 122.
DAWSON J:	How it chooses to exercise that is another matter, and if it sets up an independent government
the question is what powers is it given to it and
what powers does it retain. There is nothing to
show it intended exclusivity in any particular sense, as does section 52(i). That is the way you put it.

MR PAULING: That is why when looking at my learned friend's

submissions where he says there is no conflict

between exclusive power and power, the fact is we

are dealing here with two lots of exclusive power

so that that draws away the power of the argument

contained there, and you say, "Well, there is an

exclusive power by reading 111 and 122 together,

why could not the Parliament achieve the result,

which it has already achieved in respect of places

and States by the Commonwealth Places (Application

of Laws Act), by saying, 'We will use the technique

here of simply giving them as plenary a power of

legislation as can be without limitation as to

which parts of the Territory it applies to and the

law will run throughout'."

McHUGH J: But 52 is a special power; 122 is a general

power. Where do you read into 52 this

qualification about the States?

MR PAULING: In the words - well, I read firstly - I draw

attention to the fact that in 52:

The Parliament shall, subject to this

Constitution, have exclusive power.

Whereas 122 does not contain any qualification of

that sort, and we say as a matter of construction
that when looking to Territories you direct your

mind to 122 and you say, "Well, there is the power

in respect of Territories and the law-making

Svikart(3) 19 7/12/93

power". 52 can be read down so that it does not

apply to Territories and only applies to States.

Because, I mean, 52 is an odd section in a number

of ways. It is argued by others, although not

adopted by us, that 52(iii) when read with 111, if

taken literally, would mean you simply could not

have self-government.	We say that that proposition
is not open.

But you then look at, as I say and why we have

drawn attention to it, the history of the matters
relating to the seat of government in the

Commonwealth and all places acquired and one comes

to the conclusion that, bearing in mind what

happened, firstly there need not be any exclusive

power in relation to the seat of government because

under section 125 it is bound to be in federal

Territory, and being in federal Territory exclusive

power is in the Commonwealth anyway.

BRENNAN J:  That is what is puzzling about your argument. I

mean, if your argument is right, 52(i), the first

limb, is completely otiose?

MR PAULING: Yes.

BRENNAN J: Well, that seems to raise some problems, does it

not?

MR PAULING: Well, perhaps I can put it in its context,

Your Honour. The section that went to the voters

following the constitutional conventions did not

contain the words "and shall be in the State of New

South Wales and be distant" - sorry, it did not

even contain the words "and shall be within

Territory which shall have been granted to, or

acquired by, the Commonwealth".

BRENNAN J: But they are there now.

MR PAULING:  I know they are there now; I am only putting

them in a context, Your Honour.

BRENNAN J: But where does your context lead you? I mean, if

we are construing the instrument of the of section 52(i) is otiose?

DAWSON J:	You do not have to concede that, do you?
MR PAULING:	No, because if you take it that the topic dealt

with in 52(i) is the seat of the government of the

Commonwealth, that is, to deal with within wherever

it is, a particular topic, and indeed Acts were

passed and the Seat of Government Acceptance Acts

various which are part of the documents you have

Svikart(3) 20 7/12/93

would give it some context and some work to do.

What I am drawing attention to is -

DAWSON J:  The seat of government is not a place acquired by

the Commonwealth for public purposes?

MR PAULING:  No, it is not.

DAWSON J: Well, it is actually land surrendered by the

Parliament of the State, under section 111.

MR PAULING:  It being surrendered and accepted would qualify

under 111 as being a Territory for that purpose.

Might we point out, I mean, firstly the seat

of government is something for the Parliament to

determine and as far as we can ascertain, it never

has. We know that it is within the Australian

Capital Territory, but beyond that we know nothing

about it. We do not know whether it is simply the

precincts of Parliament, and my learned friend drew

attention to a provision that deals precisely with

that; it simply has not been determined. So that

the power is there for the Parliament at any time

it wishes to make a law with respect to the topic,

the seat of government of the Commonwealth, and

nobody else can make such a law; the law is

exclusive. So that, looked at that way, Your

Honour, no, it is not otiose.

BRENNAN J:	Can that law be made under section 122?
MR PAULING:	No.
BRENNAN J:	Why not?

MR PAULING: Because it is not a law with respect to a

Territory; it is a law having effect within a
Territory, but it is not a law for the government

of a Territory. I appreciate that

Sir Garfield Barwick says that that phrase is

really a condensed form of peace, order and good

government, but the topic that the law would be

dealing with would be the exclusive power in

relation to what is and what is the effect of the

seat of government. Indeed, it cannot be that it

is to be dealt with under section 122, bearing in

mind that in section 125 we already know that

whatever the seat of government is, it is going to

be within Territory, which has a certain size and
position in relationship to Sydney and all that

sort of stuff.

DEANE J: Are you not allowing yourself to be diverted a

little from the importance of "subject to this

Constitution" in section 52? I mean, if

section 122 confers full legislative power within

Svikart(3) 21 7/12/93

the narrow confines in which it operates, "subject

to this Constitution" in section 52 means that

section 52 cannot subtract from that full grant of

power, and is that not the beginning and the end of

it, on your approach?

MR PAULING: Well, it is, yes, Your Honour, and we indeed in

our written submissions make that very point; we

point out by reference to the authorities that it

has been said on a number of occasions that

section 52(i) neither adds to or subtracts from the

grant under section 122, and that is why, in answer

to Justice McHugh, I drew attention to the presence

of "subject to this Constitution".

McHUGH J: Yes, but section 122 only authorizes the

Parliament to make laws for the Territory; it is

not a question as to whether a legislative

assembly, set up under that law, can operate in

respect of a Commonwealth place.

MR PAULING: Yes, that is the second limb of the argument.

That is assuming 52(i) applies to places where the

fee simple is owned by the Commonwealth and it

happens to be in the Territory, then you get to the

question as to whether or not 122 would authorize

such a thing. Our submissions assert that the

power is plainly there for reasons different to

those that denied the power in Capital Duplicators. That is, there is no reason, no fundamental reason or underlying reason, why you would deny to the

Territory po~er to make general laws that applied

in all parts of the Territory. That is the express

grant that is made in section 6 of the

(Self-Government) Act. It is plenary -

McHUGH J: That is why I put to you it has got to be read

subject to the fact that 52 is a special provision,

so you have got 52 saying only the Parliament can

make laws with respect to Commonwealth places, and

you say because of 122, you set up the legislature,

it also can make laws.

MR PAULING:	We say that the conclusion to be drawn from where section 122 is in the Constitution, its
terms, the fact that 52(i) is subject to this exclusive power with respect to Commonwealth places, we find that it simply cannot apply to
Territories; it must only apply to States because
it does not make any logical sense at all to have
it apply to Territories.  As Justice Dawson points
out, the sovereignty is already there, the power is already there. There is already an exclusive power
in the Commonwealth to make laws.  So to that
extent, by including Territory or suggesting that
Commonwealth place is in - I will rephrase that.

Svikart(3) 22 7/12/93

By suggesting that 52(i) applies to places owned by the Commonwealth in a Territory would serve no function at all.

So I say there are two competing exclusive

powers and when you read them together, one refers

to Territories and gives exclusive power in the way

in which it has been developed in this Court, and

the other can only make logical sense if it applies
to States because the seat of government was to be

acquired from a State. That was the express

provisions there.

McHUGH J: What about 52(ii)? Supposing there is some

department of the public service transferred from

South Australia to the Commonwealth which later

fell under the Northern Territory. Can the

Territory under its territorial power make laws

that cut across 52(ii)?

MR PAULING: 

I should not have thought so, but the power in

52(ii) is not one that relates to boundaries; it
relates to the status of the particular gathering

of people, the department.

McHUGH J: Yes, I appreciate that.

MR PAULING: There is no reason why it should not apply all

through the Commonwealth.

TOOHEY J:  You seem to be running two arguments side by

side.	One is a construction argument and the other
is a constitutional one.	I am not suggesting that

the two are incompatible, but are you saying that

as a matter of construction of section 52, it

cannot apply to the Territory, or are you

acknowledging that as a matter of construction it

may but nevertheless, having regard to the words

"subject to this Constitution", section 52 has to

be read in conjunction with section 122?

MR PAULING: Yes, I am.
TOOHEY J:	Yes you are, which?
MR PAULING:	I am saying that - well, I would not mind

arguing that. Your Honour, what we are really

saying is that, as a matter of logic, firstly you

find that 52(i) has really got nothing to do with

Territories. But if you then look at it and say,

"But it is exclusive", or as Your Honour

Justice McHugh says "a special power", and you say,

"Well, is there any reason why it would not apply

to a Territory?", and you say, "Yes", because when

you look at the way in which things are set up

under 122, which is not itself subject to this

Constitution - and this Court has affirmed many

Svikart(3) 23 7/12/93

times, the last in Capital Duplicators adopting the

Chief Justice's words in Berwick v Gray, that there

is a power which enables them to set up a

legislature and go through - how could it be, one

asks, that those opposites could sit together?

So, really we are saying, when you say, "What

should we be directed to subject to this

Constitution, 52?" We are directed to 122. We

say, "It cannot be relating to Territories because

this is the way the Commonwealth can deal with

Territories, either directly legislating under that

power, which is not limited as to subject-matter,

or by establishing a legislature and granting it

power to make laws with respect to that

subject-matter".

I appreciate the reasons why the

self-governing Territories, in the same way as a

State cannot make laws with respect to excise, but

the reasons that would bring about that result

would not force the same result in the

circumstances of this case. I do not know whether

I have answered Your Honour's question.

TOOHEY J: Yes, thank you.

BRENNAN J: 

Mr Solicitor, can I take you back to the

question Justice Deane asked you about subject to
the Constitution? In what way is the provision of
section 52(i) subjected to section 122 or any other
provision of the Constitution that is material in

this case?

MR PAULING: 

We say that when you look at section 52(i) to

decide what its real topic is, we say it is

directed to protecting the Commonwealth from laws

of the States by investing this exclusive power.

And we say that you can find out that it is the

laws of States and not what might in the future be

accepted as Territories by saying, "Is this the

only power in here in relation to Commonwealth

places and States?" And the answer is, "Yes". "Is it the only power in relation to Territories?", and

you say, "No".	You go to 122 if you want to know
what the power is in that regard.	And just as the

Court has said that 52(i) is not a source of power, a necessary source of power in respect of the ACT,

that you look to 122, we say the same reasoning

brings you out of 52(i) to 122 and the corollary is

it must only apply to States. That is what it must

be talking to or talking about.

DEANE J: Is your real answer to that question not this,

that section 122 confers a legislative power which

includes the establishment of a self-governing

Parliament for a Territory? If you convert

Svikart(3) 7/12/93

section 52 - section 122 I was talking about - from

a grant of exclusive power to a cutting-down of the

power under section 122, in other words, to a

restriction on power, you are not reading it subject to the Constitution, because you are subtracting from section 122 part of the power to

invest the Parliament of a self-governing Territory

with legislative power to make laws in respect to

whatever happens to be Commonwealth Territory

within those places.

MR PAULING: Yes, I would happily adopt that

DEANE J: And, of course, in terms of the earlier case,

section 90 is not made subject to any provisions of

the Constitution in a case where there is tensions

between it and those other provisions.

MR PAULING: Yes, and then again, I suppose, for what it is

worth, it would seem that section 90, when we look

at 5l(iii) is the only provision that could be

picked up and, sort of, doubly enforced as

exclusive. By that, when one looks at the

provisions of the Constitution, as we set them out

in our submissions, which deal with the word

"exclusive", we find that section 90 is really the

only one that makes any sense. That is at
page 6(m), and perhaps I will deal with that
paragraph now.

There is no necessary reason why the meaning given to "exclusive" in section 90 in relation to

Territories should also be given to that same word

where it appears in section 52 in its application

to Commonwealth acquired places - and we refer to

Pearce, Statutory Interpretation - as to the

presumption of consistency of meaning being readily

rebuttable, and we compare the different meanings

of "Commonwealth" as used in the Constitution,

discussed in Spratt v Hermes.

The word "exclusive" and its derivatives are

used elsewhere in the Constitution by reference to
"States" only. Section 77(ii) deals with investing
a Federal Court with "exclusive" or jurisdiction

"exclusive" of States; 85(i) and (ii) relates to

facilities used "exclusively" by a department.

Section 107:

Every power of the Parliament of a Colony which has become or becomes a State, shall,

unles sit is by this Constitution exclusively vested in the Parliament of the Commonwealth -

so that is used in the negative sense, and 111.

So, we say where the Constitution does not

expressly say "State" the application of particular

Svikart(3) 25 7/12/93

sections of the Constitution to Territories is a
matter of construction having regard to the
particular text, and the purpose of the
Constitution as a whole.

Might I remind the Court, without reading of the statements of Spratt v Hermes at 242 - perhaps

I will go to that. That is the general statement that the Court is familiar with in 114 CLR 242,

talking of 122. He said: ·

That power is not only plenary but is

unlimited by reference to subject matter. It

a complete power to make laws for the peace,

order and good government of the territory - an expression condensed ins 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.

He was there drawing a distinction between 122 and powers given by section 51, and 51 and 52, sitting

where they are, side by side in the Constitution,
are plainly sections directed to the question of
distribution of power between the States and the
federal polity. There is no reason then to suppose
otherwise than that 122 stands apart not just from

51 but from 52, as a matter of construction.

McHUGH J: But the proposition that you adopted from what

Justice Deane put to you rather leads to the view

that Worthing v Rowell was wrongly decided, does it

not? How does Worthing v Rowell stand, really, on

your argument because why did not the State laws

continue to apply?

MR PAULING:  By reason of section 107?

McHUGH J: Yes, 106, 107; all they withdrew from the State

were powers exclusively vested in the Commonwealth.

MR PAULING: If I could just take a moment to reflect on

that, Your Honour.	I would like to come back to
that if I may?	I mean, there are two elements to

it, the one of course being - in Worthing v Rowell

& Muston the law was passed after the place had

become a Commonwealth place, so that the State had

lost altogether its power to legislate in respect

of that place as at the time of acquisition.

DEANE J: Is not your answer that 106 is subject to the

Constitution and that 107 only operates after the operation of section 52(i)?

Svikart(3) 26 7/12/93

MR PAULING: Certainly w~th 106, it being subject to the

Constitution, but that would have to be read side

by side with 52(i). I suppose 108 comes into play,

though, in relation to the problem in Worthing v

Rowell & Muston or rather more particularly in the

case of Phillips. I will try and come back to that

and answer Your Honour adequately. At page 7 in

(M) we draw attention to the fact that 111 and 122

in combination make the power to Commonwealth

Parliament exclusive and then go on to say - we

refer there to Spratt v Hermes and Porter v

The King. But this has not prevented that

Commonwealth Parliament, as part of the

constitutional development of a territory, from

validly authorizing a subordinate territory

legislature (including that of a Self-governing

territory) to legislate that territory in reliance

thereon.

Your Honours are familiar with the cases and

the passages cited. Can I just add to the

submissions that in respect of Capital Duplicators,
the pages in the CLRs are 263 to 265 and 273.

In (N) we refer to the cases which support the conclusion that in the context of the Commonwealth, "acquired places exclusive" means "exclusive to

States only". Nott Bros & Co Ltd v Barkley we are

familiar with. Commonwealth v NSW at 46. Numerous

passages, and I will perhaps take you to them in

Spratt v Hermes, but very quickly. It is 114 CLR,

firstly in the judgment of Chief Justice Barwick at

241 at the top:

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 powers 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 bys 52(i).	Thus I
find no need to discuss the ambit of the
legislative power given bys 52.
Then again, at 258, in the judgment of

Justice Kitto, about eight lines in:

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

Svikart3) 27 7/12/93

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) .

That was criticized in Worthing v Rowell, the

Chief Justice there saying he did not understand

what the "as such" meant, or "the seat of

government as such" was.	He then goes on, further
down:

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.

Then, at 262, about eight lines down, the judgement

of Justice Taylor:

In my opinion, the prosecutor's primary submission should be rejected for, with the

greatest respect, I do not think that s.52(i)

provisions under which the magistrate was
appointed. In the first place the Australian is the source of legislative authority for the are not synonymous terms.

And he goes on to cite section 125:

By the Seat of Government Act 1908 it was
provided that the seat of government of the

Commonwealth should be in the district of

Yass-Canberra -

and so on. Then, at four lines up from the bottom: In the second place I do not understand

s.52(i) as a provision intended to invest the

Parliament of the Commonwealth with

legislative authority to make laws for the

general government of such territory as is
found to comprise the seat of government, or

for that matter, of "all places acquired by

the Commonwealth for public purposes". On the

contrary it presents itself to me as a very
special power to make laws "for the peace,

order, and good government of the

Commonwealth" with respect to specified

subject matter, i.e. the seat of government of
the Commonwealth and "all places acquired by

the Commonwealth for public purposes".

Svikart3) 28 7/12/93

And he goes on to deal with, among other things, a

comparison and noting:

fundamental distinction between the terms of

s.52(i) and those of cl.17 of s.8 of Article I

of the Constitution of the United States.

But he says:

But whether or not the source of legislative

authority for the legislation now in question

be s.52(i) or s.122 the result of this case must, I think, be the same for, in my view, the courts of the territories constituted

under s·. 122, or in the case of the Australian

Capital Territory, whether constituted under

s.122 or s.52(i), do not exercise the judicial

power of the Commonwealth -

and so on. Then, at 273, the judgement of

Justice Windeyer, five lines down:

The national Parliament has complete

sovereignty over the Australian Capital

Territory no less than over the dependent

territories. The source of its power is in my

opinion s.122. That does not mean that the

Capital Territory has not a special position in the polity of Australia. It has, for

within it lies the seat of government, the

seat, that is, of the central government of

the federated States, which is the government

too of the Australian nation and its

dependencies.	I do not regard s.52 as
curtailing the power given by s.122.	The

power of the Parliament to make laws for the
peace, order and good government of the

Commonwealth with respect to the seat of

government is not the same thing as a power to

make laws for the government of the Capital

Territory. The phrase "seat of government"	has for centuries been used to describe a
capital city.

Then he goes on:

Section 52(i) giving the Commonwealth respect to the seat of government is derived

from the Constitution of the United States.

Then he sets out what I have said in argument:

A provision that, if Story be correct, owes

its origin to insults offered by mutinous

soldiery to the Congress at Philadelphia,

came, somewhat oddly, into the Constitution of

Svikart3) 29 7/12/93

Australia. It is perhaps an unnecessary

provision there. However that be, it·can have

little bearing upon the present question,
because the seat of government and the
Australian Capital Territory are not co-

extensive in fact; nor could they be regarded

as co-extensive in law, because s.125, by what

reads as an inartistic interpolation, states

that the seat of government shall be within

territory to be granted or acquired by the

Commonwealth. to ignore the word "within" here would involve a dismissal of language, a

disregard of well-known historical events and area than does the city of Canberra.

a defiance of the geographical fact that the

DEANE J: But, of course, there is considerable tension

between the judgments, or some of the judgments,

you are relying on in Spratt v Hermes and what was

said in Worthing.

MR PAULING:  Yes.

DEANE J: For example, what you have read from Justice Kitto

would seem to be quite inconsistent with the

decision in Worthing.	Where that goes, I am not
too sure.

McHUGH J:  I can remember arguing in Worthing and relying on

that passage from Justice Kitto and being hit all

over the court, with certain members of the Court

relying on it.

MR PAULING: Well, Your Honour, in coming to Worthing I

would, of course, need to draw attention to the

fact that it did not meet with approval; I mean, I have already mentioned that the Chief Justice said

he just did not understand what a seat of

government, as such, meant, or a Commonwealth
place, as such.	The only other passage I would
seek to draw attention to is marked.	It is

page 281, the judgment of Justice Owen, and I will

not read it; I will just draw Your Honours'

attention to it. But, in Worthing v Rowell

and Muston Pty Ltd, on this proposition - I have

already read the passage from the judgment of the

Chief Justice at page 97. At page 106, in the

judgment of Justice McTiernan in that case - and I

appreciate he was in dissent - he discusses the

propositions, and I will not read the particular

passages unless the Court wishes me to, but on
page 109 I simply draw attention to what

Justice Kitto there says at the top of the page;

Again, he was in dissent, of course. And I do not

think that anyone is in disagreement with him,

Svikart(3) 30 7/12/93

though, as to what he says about the difference

between lands and place and why it is there.

At pages 124 to 125, in the judgment of

Justice Windeyer four lines up from the bottom of

page 124:

In short, as I understand section 52, "places

acquired by the Commonwealth" means places

which upon acquisition the Commonwealth holds

by virtue of a proprietary right.	Such places
are quite different from territories surrendered to and accepted by the

Commonwealth under section 111 of the

Constitution or otherwise acquired, within the meaning of section 122. The difference is the

difference between political dominion and a

proprietary interest. There is no doubt a

theoretical difficulty in accommodating the

acquisition and ownership by the Commonwealth

of a parcel of land within a State with

fundamental feudal concepts of landholding.

And he goes on to discuss the question of public

purpose and talks about the American situation.	I
have already drawn attention to that. At the
bottom of page 125 he says:

The acquisition by the Commonwealth of places

in Australia as post offices, naval and

military barracks, airfields, artillery ranges

and rifle ranges, Commonwealth bank premises,

meteorological stations or other such

Commonwealth places does not mean that they

cease to be in a political sense parts of the

State within the geographical boundaries of

which they lie. They are not like territories

surrendered by a State according to

section 122. Places of the sort I have

mentioned have sometimes been called enclaves.

And then he has got some quotation. Then he says:

Territories surrendered to the Commonwealth by

a State, and over which the Commonwealth

exercises political dominion, can be properly called enclaves: places acquired and held by

the Commonwealth as Commonwealth properties

within a State to my mind cannot.

Then, in Phillips, 125 CLR, at page 111; it is

on the question of sovereignty, really, the third

line, in the judgment of Justice Menzies:

There is no change of sovereignty when the

Commonwealth acquires a place within the

territorial limits of a State; there is no

Svikart(3) 31 7/12/93

cession of territory. Where there is such an

acquisition, what is acquired by the

Commonwealth remains within the territorial

limits of the State but it is no longer within

its legislative power because it falls within

the exclusive legislative power of the

Commonwealth Parliament. Here we are

concerned merely with a constitutional

division of power. Moreover, laws in force in

a territory which has been conquered or ceded, remain in force after conquest of cession, not

by virtue of inherent vitality, but by virtue

of the will of the new sovereign.

The point we make from that passage is that the

whole question of sovereignty, when the Territory

became a Territory of the Commonwealth, the

Commonwealth obtained and maintains complete power

to legislate with respect to such a place, and this
leads logically to the conclusion, we say, that

there is no purpose in reading 52(i) as in any way

limiting 122. There is simply no need for a power

in the Commonwealth Parliament to protect itself,

because 52(i) is a protective provision, to protect

itself from some other legislative body seeking to

exercise the sovereignty or power in respect of

such a Commonwealth place.

BRENNAN J:  Mr Solicitor, if your argument as to the

limitation of place in 52(i) to places in the State

is not accepted, so that 52(i) can, at least in

terms, apply to places within the Territory; is it

your argument that by the (Self-Government) Act the Commonwealth did, in respect of those places in the

Northern Territory, achieve the same result as the

Commonwealth Places Act achieved in relation to

places within a State?

MR PAULING: Yes, but by a different pathway.

BRENNAN J: That is a different argument, is it not? Then

you say, "Well now, the Northern Territory

(Self-Government) Act has, by virtue of its own

force, applied the Territory legislation to the

Commonwealth place".

MR PAULING: Yes. It does not rely on trying to

characterize the Northern Territory legislature as

a delegate. That is the Commonwealth exercising

its own power by - - -

BRENNAN J:  By reference.

MR PAULING:  By reference, yes. My learned friend said, and

I agree with him, that it is unnecessary to determine in this case whether or not the

Commonwealth Places (Application of Laws) Act is an

Svikart(3) 32 7/12/93

Act of delegation or an Act of reference.	We would
submit that it is an Act of reference; the

Commonwealth exercising its own power by reference

to whatever the body of law is - might be in a

particular State at a particular time - - -

BRENNAN J: But if you embrace that argument, and one can

find support in this passage that you have just

cited for that approach, it then becomes a question

simply of construing the Northern Territory

(Self-Government) Act, does it not, to see what the

legislative intention is?

MR PAULING: Yes. Could I take Your Honour then to page 8

which is our alternative argument. We say it is

clear that the Commonwealth Parliament may by its

legislation authorize a subordinate Territory
legislature, whether or not its delegate and

whether of a self-governing Territory or not, to

legislate for that Territory under 122. Then well

known passages are referred to. It follows in so

far as legislation for Territories is also sought to be supported under 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 powers, being 52(i) and

122.

We observe at (b) that to hold otherwise would

put in doubt the capacity of a Territory legislature, at least since any grant of

self-government, to legislate with effect in
relation to the seat of government if it is in that

Territory, subject to any implied limitations, as

well as to Commonwealth acquired places in a

Territory. We say that result would be repugnant

and ought to be avoided if there is another

construction that is equally open that would avoid

that result.

We say that the exclusive legislative grant of

power in 52(i) clearly excludes any possibility of

State legislation having effect of its own force in

Commonwealth acquired places. We say the history

points to this as the intention of the section.

Then we go on to seek to distinguish the

circumstances of this case from those which applied

in Capital Duplicators because we say there is no

underlying or fundamental reason to deny to the

legislature in the Northern Territory the power to

make laws with relation to a topic clearly within

power, ie, traffic, which have effect in

Commonwealth places.

Svikart(3) 33 7/12/93

We say that the rationale for making

section 90 exclusive of States and self-governing

Territories does not apply to sections 52(i) and
122. Suggestions in the joint judgment of

Your Honours Justices Brennan, Deane and Toohey in

relation to the seat of government are dicta, but

what we say is that there is an implied limitation

on subordinate territorial legislative power in

relation to the seat of government with respect to

the functioning of that seat as such.

I have sought to formulate in terms of what

was said in that joint judgment of how it may be

that an Australian Capital Territory law might

interfere with the functioning of government as

such. It seemed to me that it would be within

power of the local legislature to make a law that
prevented the ringing of bells between midnight and

dawn and that any attempt to enforce that in the

Parliament when a division was called in the early

hours of the morning would quickly result in the

assertion that it cannot possibly apply there

because it would interfere with a necessary

functioning of the body politic, which is the

federation.

I thought that would serve as a clear example

at one end of a scale of things, that there would

be an implication there - it need not be

specifically stated - that would prevent the
application of that law, just as effectively as if

there were a Commonwealth law that attracted the

results of 109 inconsistency. But we draw

attention to the (Self-Government) Act which is in

the volume we lodged which contained the American

authorities. It is under tab 7.

I will just refer to this volume rather than

my own copy of the Act. It seems to only contain

those sections bearing upon the transfer of

property and acquisition of certain land, but I
will get copies of the appropriate provision.	The

two relevant sections are firstly section 5 which

my learned friend has already read where:

The Northern Territory of Australia is hereby established as a body politic under the Crown

by the name of the Northern Territory of

Australia.

Section 6, Powers of Legislative Assembly:

Subject to this Act, the Legislative Assembly

has power, with the assent of the

Administrator or the Governor-General, as

provided by this Act, to make laws for the

Svikart(3) 34 7/12/93

peace, order and good government of the

Territory.

The scheme that was there provided was that the

regulations could specify those matters in respect

of which executive power was transferred to the

Territory, and practically everything that the

Commonwealth could transfer has been transferred

with the exception of uranium, some Aboriginal

matters and industrial relations.

So that that is the scheme. There is simply

no limit there in respect of the powers that were

granted. The fact that there are some topics that

power is not transferred on does not contract the

real plenary nature of that power. There is no
restriction, express or implied, that would suggest

that the laws only run to those parts of the

Territory that are not Commonwealth places acquired for public purposes.

The consequence of saying that the whole of

the Territory sort of became a Commonwealth place or that there would be different sorts of land to

which it would run can be demonstrated by this
fact, that before 1911 before acceptance, there

were in the Northern Territory of South Australia

places that were set aside or set apart for public
purposes by the State of South Australia.

Hermansburg Mission is an example that has

continued to be set aside, or continuing that way.

It has eventually become schedule 1 land under the

Land Rights Act but the point remains good, that

here was land that was never acquired by the

Commonwealth for public purposes when it accepted

the Territory, yet it served a public purpose. But land that was vacant Crown land in the hands of the

Commonwealth after 1911 could be set aside for a

public purpose but it would not involve an

acquisition, so that would not attract

section 52(i). This point is made at page 4 in

point (g). That point is made to demonstrate that

if there were to be a number of regimes of law

applying in the Northern Territory depending on the

status of the land, you would have the confusing
situation that there were lands that were plainly

acquired at one time and set aside for public

purposes, but not by the Commonwealth. Or land

that was set aside for public purposes by the

Commonwealth but it did not have to acquire it from

anybody. Then you would have land that was in fact

acquired by the Commonwealth for public purposes

where another, or different regime may apply, and

that consequence while not of overwhelming

strength, when added to other things, would lead to

an interpretation of 52(i) with 122 which would

avoid such an absurd result.

Svikart(3) 35 7/12/93

But I digress, and I have gone back to the

earlier argument. If I can go back please to

page 9 where at (e) where the point is made that

the grant of power under section 6 is sufficiently

wired or so wired that there is no reason to read

it down by reference to 52(i). But also we say
that this is authorized and there are no overriding

considerations such as occurred in

Capital Duplicators which would deny to the

legislature the power to make laws applying equally

on Commonwealth places as they do in any other part
of the Territory.

So that in brief then, we say that as a matter

of construction of the Constitution, that 52(i)
being read subject to this Constitution does not

apply to Territories. It only applies to land in

States and was always intended to have that

application and no wider application, but one looks

to 122 and says, "Well, here is an enormously wide

grant or as wide a grant as there can be of power,

is there any reason why it ought to be read down by

section 52(i)?" and nothing is apparent from any

process of construction, we say.

We say that leads to the conclusion then, that

the first question be answered, no, and that the

other questions then be unnecessary to answer.	If
52(i) does apply in the Territory, then on the

facts in the case stated, the land constituting the

RAAP base in which the offence allegedly occurred

was acquired in the process provided for in the
(Self-Government) Act and acquired according to the

gazettal for the public purpose of defence, and we

do not seek to raise any argument that if 52(i)

applies we do not seek to deny that it is a

Commonwealth place, if 52(i) has application.

We do say, however, that the third question is

to be answered in the affirmative, that is that the

stated apply, and they apply because it is a	Traffic Act and Regulations referred to in the case
permissible grant of power under 122 to the
Northern Territory self-governing legislature to
make laws having effect throughout the Northern Territory and that there is good ground to
distinguish here between the result in
Capital Duplicators where section 90 is not subject
to the Constitution, and there were fundamental imperatives in relation to customs and excise which
in fact brought about the Federation, and comparing
then this case, which is really a case about distribution of powers between the States and the federal body, and there is not any reason of individual rights or anything else that would suggest that there is any reason why Territory laws

Svikart(3) 36 7/12/93

should not apply throughout the Northern Territory.

So, they are the two limbs of our argument.

I am sorry, there was a question raised by

Your Honour Justice Dawson about acquisitions prior

to 1978. The documents have been looked at and

there were a large number of purchases or

acquisitions from individuals and institutions,

starting in 1933 and working up to 1942, and some

in 1945, so that they were places acquired by

purchase or otherwise by the Commonwealth from

individuals and I do not see anywhere it purports

to acquire land from itself; I would not expect to

find such a reference.

So those, in short, are our submissions on the matter. We say that the objection raised by the

defendant before the magistrate is misconceived;

that Justice Muirhead was correct in Pryce v King.

It remains correct that section 52(i) speaks only

to the States or relates only to States and has no

application to land in a Commonwealth Territory for

the simple reason that the Commonwealth needs no
other source of exclusive power in relation to that

Territory, except section 122. So that there is no rationale or logical reason why one would seek to apply section 52(i) to a Territory.

If I am wrong in that, then there is no reason

to read down the grant of power set out in section

6 of the (Self-Government) Act, which is plenary;

there is no reason to suggest that laws made by the

body there only apply to those parts of the

Northern Territory that are not Commonwealth places

acquired for public purposes. Unless there is a

particular matter the Court wishes me to go to,

those are our submissions.

MASON CJ:  Thank you, Mr Solicitor. Mr Solicitor for the

Commonwealth.

MR GRIFFITH: If the Court pleases, we are unsure when a

leading practitioner is elevated to this Court a

tactical gambit which bears his name becomes a
gambit which ceases to have a name, but in this

case my learned friend Mr Bennett has, in effect, reserved his case to reply, thus our intervention

is a somewhat more open one than it might have been

rather than to deal with his arguments which we

cannot even anticipate at the moment. We appear in

an unusual situation for the Commonwealth, that is,

rather than to argue and protect immunities, both

the Commonwealth and the Parliament, in this case

we argue that there is not a relevant immunity for

the purpose of the application of this law of the

Territory. We say that because it is our

Svikart(3) 37 7/12/93

submission that the Commonwealth constitutional

interests do not require section 5l(i) to be read

as excluding the power of the Territory legislature

and we do accept that if it comes to that - and we

feel it does not necessarily have to adopt that course - that the construction of the Territory legislation, which has just been advanced by my

learned friend, the Solicitor-General for the

Northern Territory, is correct and that by the

terms of the Northern Territory legislation, we say

acting within power and in conformity of the

constitutional terms, these relevant provisions do

apply to this Commonwealth property which is within

the Territory.

The Court will see from our submissions that

we have two basic approaches in making that,

perhaps we could call it, concession. If I could

indicate to the Court that our outline was prepared

before the Commonwealth Law Report volume 177
Part 2 became available, and if the Court would permit us, after lunch, we will file an amended

outline which has the correct CLR references to

Capital Duplicators. But our approach firstly is

that the expression "exclusive power" in section
52(i) means exclusive of the legislative powers of

the States, and if that construction is adopted, we

feel that it is not necessary then to give much

work to the expression in section 52 "subject to

this Constitution" because if the colouring phrase,

"have exclusive power" is read exclusive of the

States, well then, in our submission, the

constitutional structure works comfortably in

relation to the disparate provisions of section

111, section 122 and, of course, the_very late

settled provision of section 125 which had the

effect of providing that the seat of Government

should be within the State of New South Wales. Up

to that point it would seem that it was regarded as quite possible that the seat of Government could be situated within a State and by way of legislative	or constitutional history of the draft, one can see	the historical reason why section 52(i) should have
a provision dealing with the seat of Government of the Commonwealth and the relevant immunity dealing with the real possibility that the seat of
Government may be within the State which, of
course, with the adoption of section 125, carried the result that there was thereafter no possibility of the seat of Government being situated within a
State because section 125 would operate to provide
that the seat of Government, as it was eventually enacted and proclaimed and, of course, by agreement with the Government of New South Wales, by grant
rather than by acquisition, come to be formed as
the Territory of the Australian Capital Territory.

Svikart(3) 38 7/12/93

But, of course, in this case there is no issue

as to the seat of government, but it does seem that

the argument does, to some point, carry over into

construction of section 52 in dealing with the

possible operation of section 52 in respect of the

Northern Territory.

We make the first point in our contentions

that, in our submission, if "exclusive power" in

section 52 means exclusive of the powers of both
the State and the Territory, there then would be a

seemingly discomformity or strange result with a

combination of the operation of section 52(iii) and

section 111. We would regard the expression in

section 111 _"exclusive jurisdiction of the

Commonwealth" as being coterminous with the

expression in paragraph 52(iii), referring to the
exclusive power of the Parliament, and for that

proposition we have referred to, in our

submissions, firstly to page 661 of Quick and

Garran and, secondly, to the statement of

Justice Higgins in Roughly v New South Wales,

42 CLR 162 at page 198.

It does seem on that construction, in our submission, that if it is the case that section 52

is read as embracing both exclusive of the

Commonwealth and of the Territory as a matter of

construction it would become constitutionally

impermissible for there to be, as it were,

responsible government being vested by reason of

Commonwealth laws within the self-governing

parliaments of the Northern Territory or the

Australian Capital Territory.

Now, possibly that is what the Constitution

provides. If it does, it does seem an

anti-democratic provision, with respect,

particularly if there is a view taken that, so far

as the Australian Capital Territory is concerned,

it is incapable of becoming a State. If there

would be no case of possible transition to

statehood, as is referred to in the convention

debate extracts referred to by my learned friend,

Mr Pauling, in respect of the Australian Capital

Territory, well then, construction of that sort, in

our submission, would mean that the Australian

Capital Territory would be doomed, absent

constitutional amendment, to government of the sort

which existed up to the time of the establishment

of self-government within the Territory.

BRENNAN J:	You said a surprising result?
MR GRIFFITH:	It would be a surprising result, Your Honour.
BRENNAN J:	Why?

Svikart(3) 39 7/12/93

MR GRIFFITH: Well, Your Honour, because it would seem, for

one thing, Your Honour, that the Constitution is

based on the assumption that there is brought into

being a mechanism of responsible government, of

democratic government, Your Honour, and we submit

it would be strange indeed if there was - one does

not know how substantial - but, we can see

93 ..... how substantial it is, Your Honour, a

community which would be denied the possibility of

self-government.

DAWSON J:  The Commonwealth Parliament is democratic, is it

not? And, provision is made for representation in

that body?

MR GRIFFITH: Well, indeed it is, Your Honour, but - perhaps

there is no need to take this debate much further,

Your Honour - the nature, as we have seen of the

operation of the Commonwealth government, is that

it is concerned with dealing with matters

pertaining to the governments of the nation, not
pertaining with those matters which are the

equivalent, if one likes, to the combination of a

small State and a municipal government, such as

irrelevant for the ordinary operation of, say, the
government in the Australian Capital Territory.

It is accepted, Your Honour, if that were the case, well then government could be no more

responsible in that sense than could be so provided

by that mechanism. But, Your Honour, our

submission is that as a matter of construction one
has a comfortable operation of section 52 on the

basis of construing it by reference to the legislative history of the Constitution as

referring to how exclusive of the States. In our

submission, if that leads to a satisfactory result,

as it does here, because it is within the hands of
the Parliament of the Commonwealth to control the
extent to which laws of the Northern Territory and

the extent to which laws of the Australian Capital

Territory will apply to any aspect of the

Commonwealth, including property of the

Commonwealth, in our submission, that is to be,

then, the preferred construction to be adopted by
the Court given, if it be assumed for the sake of

argument, that there is a choice of construction.

But, our submission is that when section 52

and section 111, 122 and 125 and the Constitution

as a whole are read, one comes to a comfortable
conclusion that this is the operative meaning of

section 52, which then fits comfortably, as

Your Honour Justice Dawson pointed out to my

learned friend, with the operation of section 111 - providing for exclusivity of operations of the laws

Svikart(3) 40 7/12/93

of the Commonwealth in respect to Territories which

are required from a State.

BRENNAN J: Section 111 obviously does refer to the States

and the Commonwealth, because it is speaking about

the surrender of part of the State to the

Commonwealth, and the exclusivity that is provided

for there is obviously exclusive of the

jurisdiction of the State from which the Territory

has been extracted.

MR GRIFFITH:	We agree, Your Honour.
BRENNAN J:	One would think there is little doubt about

that. But if one comes to section 52(i), and

particularly the first part of it, on your
proposition, if I understand it, the Australian

Capital Territory can become a State; what happens to section 52(i) then?

MR GRIFFITH:  Your Honour, it is not our proposition that

the Australian Capital Territory can become a

State; indeed it has been stated in this Court that that is not a possibility.

BRENNAN J:  I see, I am sorry; I have misunderstood what you were saying.

MR GRIFFITH:  No, Your Honour, I was not intending to attack basis for my undemocratic argument, as it were; I
am sorry I did not make that clear. that; I was accepting that, Your Honour, as the

BRENNAN J:  No, I misunderstood.

MR GRIFFITH: Yes. But, Your Honour, what we do say in

answer to Your Honour's observations of my friend,

are you suggesting - - -

DAWSON J: May I just, in a spirit of genuine inquiry, ask

why it cannot become a State?

MR GRIFFITH: Well, Your Honour, one aspect

DAWSON J: Section 125; is that the - - -

MR GRIFFITH: Well, Your Honour, section 52 could lead to

some difficulties, Your Honour, because it is the

case that the Parliament does retain powers with

respect to the seat of government but, Your Honour,

I suppose - - -

DAWSON J:  The seat of government has to be within a

Territory.

MR GRIFFITH: Yes, section 125. Your Honour, perhaps it is

suffice as to say for the purpose of my argument it

Svikart(3) 41 7/12/93

is accepted that there is no possibility of the

Australian Capital Territory becoming a State. As

to whether, Your Honour, that could be reviewed on

further elucidation on the relation between
section 52 and 125, perhaps we could leave that for

another day, but my submissions today, Your Honour, are confined to the acceptance of the dicta of this

Court, that there is no possibility that the
Australian Capital Territory can become a State.

But, Your Honour, in that context Your Honours have been taken to the various statements in Spratt

v Hermes. Perhaps I should put on one side the

statement of Justice Kitto, which has been

criticized by Chief Justice Barwick, but the other

statements, particularly of Justice Taylor at

page 263 and Justice Windeyer at page 273, tease

out the differences that there can be, having
regard to the seat of Government, regarding it as a

place, or regarding it more as a quasi matter, if

you like, or, Justice Kitto said, "a topic", but

perhaps I had better not rely on his expression.

Of course, other judges of this Court have

referred to the provision in section 125, which

refers to the seat of government being within the

Territory, and it is the case, as my learned friend

Mr Pauling said, that no Commonwealth legislation

has defined the seat of government. It could be,

for example, the precincts of Parliament; it could

be the Parliamentary triangle; it could be all that
plus Commonwealth government offices within the

Territory. One does not know.	That is an issue to
be defined.

It may be defined not by reference to physical

descriptions at all, but by reference to functional

descriptions. So that, to say that section 52(i)

has the expression of the seat of government as the

Commonwealth, in our submission, does not carry

with it the definition by reference to a

geographical area, either of a Territory, certainly

not; or within a Territory. But, in our

submission, section 52(i), by referring to the seat

of government, in no way withdraws from the powers

of the Parliament to make provision for the

administration of the Australian Capital Territory

as a political entity, including, if one liked, a

provision to apply the laws of the Territory

legislature to, even, the precincts of Parliament,

as being within the powers of the Parliament, in no

way abridged by reference to the provisions of

section 52, referring to the exclusive nature of

the power of the Commonwealth with respect to the

seat of government. With respect, that meaning is

given quite directly if one adopts the construction

of regarding exclusive power as being read

Svikart(3) 42 7/12/93

exclusive of the States. That does, in our

submission, all the necessary work for this

provision.

We refer in paragraph 2 to the reasons why we

say there is no difficulty arising out of the
result of Capital Duplicators, with reference to

the obvious proposition that the Constitution, the

text and the purposes, must be read as a whole, and

the result reached in that case as to the
application of section 90. Our submission here is
that there is no textual or constitutional reasons

for any general exclusion of the powers of a

Territory legislature and Commonwealth places in

the Territory. So there is no special

consideration as there is in Capital Duplicators.

We do refer at the top of page 2 to the statement of Justice Issacs in Nott Bros v Barkley,

(1925) 36 CLR 20, where His Honour, of course, does

say quite specifically, at page 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.

His Honour was there referring to section 90, but he had no difficulty in there reading "exclusive"

in the same sense as "exclusive" of State

Parliaments and, with respect, although that is a

mere observation of His Honour in his judgment, it

is submitted that such a construction is a correct

one that fits comfortably with the operation of

section 52 and has sufficient regard to the

appropriate mechanisms of the Constitution to
ensure the paramount position of the Commonwealth

Parliament in respect of matters - - -

BRENNAN J: Where does that construction come from having

regard to the language of 52? I mean, "exclusive"

qualifies power and an exclusive power means a
power which only one repository can exercise, I

would have thought.

MR PAULING: Well, Your Honour, if one has an exclusive

power, in our submission, it has to be in relation

to something else. Now, it is either exclusive

power of the States and the Territories.

BRENNAN J: It is exclusive of other power to make laws for

the peace, order and good government of the

Commonwealth with respect to.

MR PAULING: With respect, Your Honour, our submission is

that the reference of the point in respect of which

there is to be exclusivity can only be State and

Svikart(3) 7/12/93

Territory, or State, but that is the choice, in our

submission. It either embraces all, which perhaps

Your Honour's question postulates, which we say

means State and Territory, or it embraces State

only. So in our submission, Your Honour, one is

inserting, by way of saying, "Well, exclusive of

what?" answering that question, an answer.

Your Honour's suggestion is that one says "all".

In our submission, Your Honour, "all" equals State

and Territory.

In each case, Your Honour, we would submit

that there is an insertion to consider well, with

respect to what other power is this power

exclusive? In our submission, Your Honour, if one

is answering the question, "Is it to be State and

Territory or State?" then, Your Honour, there are

reasons of construction which do fit comfortably

with the other sections of the Constitution,

particularly 122, 111, 125, which give a meaning

vindicating what, on its face, appears as the

purpose of section 52, Your Honour, and that is, by

construing it as exclusive of the States, this

expression, of course, being drafted at a time when

there were no other, there were no Territories of
the Commonwealth. At the time of its inception,

the Commonwealth had no Territories.

BRENNAN J:  As a matter of construction, I do not see it

being read as "exclusive" of anything. It is

descriptive of a power. It is not endeavouring to

identify other powers; all it is doing is saying

this power is an exclusive one. Nobody else,

whatever it might be, has this power.

MR GRIFFITH: If Your Honour adopts that construction, of

course one then must go to the further step of

saying, "In that case and in these circumstances,

in what manner has that power been dealt with?"

But, Your Honour, one possible difficulty becomes,

of course, that one can then perhaps go too far and	require the power to be exercised by the Parliament
alone and not by reference to the law enacted by Parliament providing for self-government within a
Territory.

BRENNAN J: That is a different question. Then it is a

question of what the scope of the power that is

vested in the Commonwealth is.

MR GRIFFITH: Yes, that is the alternative submission, of

course, with respect to that. It is accepted,

Your Honour, that this is a point of construction.

We look to pointers which we say direct the answer

one way. It is possible to adopt a different

approach, as perhaps Your Honour indicates in your

question, to say that is a broad and unlimited

Svikart(3) 44 7/12/93

expression of exclusivity; it should be given full

operation according to its terms. If that

situation is the correct one, Your Honour, it is

still necessary, with respect, to put into relative

place the provisions of sections 122, 125 and 111

to see - perhaps if one adopts that approach,

Your Honour, one has to give some work to the

phrase "subject to this Constitution" to there see

that they work in comfortable conformity rather

than disconformity.

We would submit one cannot get to an opposite

result by coming through the Territory sections, if

I may refer to them, of the Constitution. So it

would then become a question of securing that there

is a relationship, Your Honour, that one can say

full operation is given under the terms of the

Constitution. We would then refer to the phrase

"subject to this Constitution" when one was

considering the work to be given to section 52.

Your Honour, it is appreciated, as I said in

my opening remarks, that this is somewhat unusual

for the Commonwealth to be here, as it were,

detracting from what could be taken as the widest

view of the expression of Commonwealth and

Commonwealth parliamentary power and immunity, and

those submissions are put because it is the view of

the Commonwealth that the interests of the

Commonwealth are adequately protected by its

plenary powers, particularly under section 122, and

also by its implied immunity.

So that the Commonwealth itself, Your Honour,

is quite comfortable about the result here argued

for, namely that the legislature of a self-

governing Territory created by a law of the

Commonwealth can, in conformity with section 52, be

vested with power to enact laws which do apply to

what in a non-territory would be regarded as a

Commonwealth place.

GAUDRON J: Could I ask about these implied immunities.

What are they? Where did they come from?

MR GRIFFITH: Well, Your Honour, particularly after the

conference over the weekend, that is something for

discussion another day, but we list them.

GAUDRON J: Well, except you call them in aid for your

legislation in this case.

MR GRIFFITH: Well, Your Honour, we refer to the zygomatic

doctrines, but we list them on page 3, paragraph 5

of our submissions, as being the sort of thing we

refer to in passing, but I prefer to resist

Your Honour's siren call, if I may call it, to open

Svikart(3) 45 7/12/93

up on issues as to whether or not, Your Honour,

these immunities which we say are recognized and

exist are not -

GAUDRON J:  You see, the great difficulty is you call in aid

immunities, do you not, to support a construction

or to support an elimination or reading into

section 52 because of implied immunities; it seems

to put the construction process on its head.

MR GRIFFITH: Well, Your Honour, it is not intended. It may

be the case that we have a belt by section 122 and

we said, in any event we have got braces because we

have these immunities as so far expressed and we

referred to. It might be that someone might come

along and attempt to snip off the braces, but we

will still be left, in our submission, with the

belt which is uncuttable because it is in section

122, but I appreciate the force of Your Honour's

comment. I suppose it is a danger, Your Honour, of

just being one phrase too far in making a

proposition; in this case to the effect the

Commonwealth is comfortable about this position and

submitting that this is a proper construction of

section 52.

Now, the alternative approach, and we make

that very shortly in our paragraph 6, is that if it

is the case that the construction that we submit,

that exclusive power does not merely mean exclusive

of the States, in our submission, none the less

paragraph 1, in its application to Commonwealth
places, does not apply to Commonwealth places in a

Territory. We say that there is just no need to

have such an immunity, and once again it is our

submission that the Court is not, as it were,

coerced by the construction of the Constitution as

a whole to adopt a view any wider than Commonwealth

places, in our submission, is a reference to

Commonwealth places within a State.	Once more, it
comes back to much the same reference point,

because we say that if it is a Commonwealth place

in a Territory, well then we feel quite comfortable

about our capacity to control it.

So here, if the Commonwealth is dissatisfied

with the result, which we contend is the
application of the road laws, well then, it is
within Commonwealth hands to adjust it. But, if at

the end of the day, the Court takes the view that

as a matter of construction the Territory

legislation operates within power as being

authorized by Commonwealth legislation as an

Application of Laws Act Commonwealth
similar to the ensures, of course, that there is no absence of

law, as was the case in respect of the Worthing V

Svikart(3) 46 7/12/93

Rowell and Philiips' cases, and, as the Court has

at least seen by our intervention, one in which the

Commonwealth feels quite comfortable so far as

relying or not relying upon the protection of the
general immunity under section 52. If the Court

pleases.

MASON CJ:	Thank you, Mr Solicitor. Mr Crispin.
MR CRISPIN:	May it please the Court, in our submission

there are two alternative means of approaching

section 52.

One, they approach it by embracing the submissions·of the Solicitor-General for the

Northern Territory and Solicitor-General for the

Commonwealth, by holding that section 52 is

concerned with the rights of the Commonwealth vis-

a-vis the States,and section 122 is concerned with

the rights of the Commonwealth in relation to the

Territories, and that is our primary submission.

It has been a submission however that has

already been canvassed at som,e length,, and it is

not a matter upon which I wish to spend a great not

a matter on which I wish to spend a great deal of

time. Given the amount of time that has already

been spent on that, it may be appropriate if I were

to turn to the alternative submission which is that

even if one adopts the construction that

Your Honour Mr Justice Brennan has raised of

saying, "Assume for the moment that what is conferred by section 52 is a power which is exclusively confined to the Commonwealth

Parliament, exclusive of any other body, and then

one asks what the consequence of that is", one

needs to turn, in my respectful submission, to the

words of the section which provides that the

Commonwealth shall have exclusive power to make

laws:

for the peace, order, and good government of

the Commonwealth with respect to -

the matters therein enumerated.

Section 122, of course, confers another exclusive power on the Commonwealth. There is

nothing in section 52, in our respectful

submission, that suggests that section 52 was

intended to cut down or in some way limit the power

of the Commonwealth Parliament. Indeed it would

almost do violence to the section to hold that a
section which says the Commonwealth shall have

exclusive power to do certain things was a section

which was intended to limit the Commonwealth

Parliament to do certain things. And indeed, if

Svikart(3) 47 7/12/93

Mr Bennett's argument were correct, it wo~ld follow

that the Commonwealth's power to deal with

Commonwealth places that fell within Territories

would actually be enlarged if section 52 were to be

repealed, which would be a somewhat unusual

consequence.

We submit that whether or not one views

section 122 as the only source of power to

legislate for the Territories or whether one views

section 52 as providing an alternative source of
power to legislate for the Territories, the

position is the same, namely that the Commonwealth

Parliament may make laws for the peace, order and

good government of various things which includes

Territories and which includes places within
Territories. Indeed, the enactment of a self-

government Act for a Territory, be it the Northern

Territory or the Australian Capital Territory, may

properly be viewed as an expression of the
exclusive power conferred upon the Commonwealth
Parliament, pursuant to section 52.

Alternatively, such an enactment could be viewed as an exercise of the power under

section 122 and section 52 could be viewed as

providing that only the Commonwealth Parliament may

exercise such a power, in other words as excluding

any alternative power in any of the States. In

either event, one comes to the same conclusion,

namely that the large and as universal a power of

legislation as can be granted under section 122 is

not qualified by section 52.

That, we would submit, is an al:.ernative construction of sections 52 and 122 which is

entirely consistent with the balance of the

Constitution and entirely consistent with the

essential aspirations of the founding fathers in

establishing Federation, entirely consistent with

the constitutional debates. One can see in one of

the passages to which the learned Solicitor-General

for the Northern Territory referred the debate

about the relationship between section 52 and

section 122, which of course were then clause 53

and 115 respectively, whether or not it was

appropriate to put the Territory's power in clause

53 or whether it should remain in a separate

clause. But the one thing which stood out of that

debate was that both were regarded as exclusive

powers and there seemed to be no suggestion in that

debate that there would be a difference in the

nature of the two powers.

We make the point that really section 90 is a

very different section which is to be contrasted

with section 52, firstly because section 90, as

Svikart(3) 48 7/12/93

_ _....

this Court held in the Capital Duplicators case,

reflected a consideration which was one of the

founding objectives of Federation, namely to create

a trade-free zone within Australia. There is no

comparable situation, we would submit, in relation

to section 52.

If one were to look at it in terms of

conferring rights on every Australian citizen, for
example, to trade throughout the Commonwealth of

Australia in an uninhibited manner other than by

duties that would be uniform, no matter where one consideration here, but absolutely no reason why
traded, then that would provide a rationale of
course, as i~ did for the majority in the Capital

the Commonwealth would be precluded from having

different speed limits in the RAAP base at

Williamstown from the RAAP base in Fairbairn, for

example.

Secondly, we make the point that section 90

speaks of providing an exclusive power to impose

duties, whereas section 52 provides an exclusive

power to make laws for the peace order and good government. It does not provide quite the same

level of immediacy, and of course it is clear that

a Territory government is not a delegate of the

Commonwealth government, hence there is a basis for

saying that a tariff imposed by a Territory is not

a tariff imposed by the Commonwealth Parliament.

But, on the other hand, that does not derogate at

all from the submission that a self-government Act

passed by the Commonwealth Parliament is a law made
by the Commonwealth Parliament for the peace, order

and good government of the Commonwealth.

Thirdly, we point out, as has already been mentioned in argument, that section 52 contains the

words "subject to this Constitution". If

section 52 had been intended to qualify

section 122, then it is curious indeed that the words "subject to this Constitution", appear in

section 52 but do not appear in section 122. One

would have expected, in those circumstances, that

the parliamentary counsel would have taken some

care to make it plain that one - - -

McHUGH J: But 122 must be read subject to the Constitution.

Do you contend that section 116 does not apply to

the Territories?

MR CRISPIN: No, I do not, Your Honour. That may well be

so, obviously is so, as a matter of construction.

The point I make is simply that here one has two

sections; one containing a quite explicit statement

that it is to be subject to the Constitution; one

Svikart(3) 49 7/12/93

not containing any qualification at all, and yet

the contention of the defendant in this case is that the section with the qualification must be taken as qualifying the other section.

Now, we ask rhetorically, why would one read

that intent into the section. It is not there.

There is not anything in section 122 which says

this is subject to section 52. There is not

anything in the fundamental nature of section 52,

as there was in relation to section 90 or in

relation to section 116, that would necessarily

lead one to that conclusion. Why then should one

import such a qualification into it, especially

when the consequence of such an importation is to

say that a section which, on its face, is intended

to confer jurisdiction, and to take it away from

anybody else, has the effect of limiting that

jurisdiction. We would contend that that is just

not a - it is certainly not an obvious construction

to place upon the section, and we would submit it

is not the construction it bears.

BRENNAN J:  The difficulty is if one says section 122 is a

general power, as no doubt it is, it is a

legislative power vested in the Commonwealth, so

that prior to an exercise of power under 122 there

is no conflict between 52 and 122.

MR CRISPIN:	No, that is so, Your Honour.
BRENNAN J: The power is there in the Commonwealth.	But if

your argument is right, by an exercise of power

under 122 and an exercise of power by a delegated

legislature created pursuant to 122, the

exclusivity of the power conferred by section 52

can be annihilated.

MR CRISPIN: In my submission, that is not so, with respect.

Certainly that was the problem in relation to

section 90 in the Capital Duplicators case, because

uniformly, and if that power had been capable of	that was a case where the power had to be exercised
being delegated to a Territory government, it would
have meant that a Territory government could
achieve indirectly what the Commonwealth Parliament
itself could not have achieved directly. But in
relation to section 52 there is no reason, we would
submit, why that should be so. Indeed, there is no
reason - if I could come back perhaps to an example
that was put in relation to section 5l(ii), the
provisions dealing with the Commonwealth
departments.

The answer to that, we would submit, is it

really depends how the Commonwealth Parliament

exercises its power. In the Northern Territory and

Svikart(3) 50 7/12/93

the Australian Capital Territory it has exercised

its power pursuant to a self-government Act which

has had the effect of transferring certain

government functions from the Commonwealth to a Territory. That has meant, for example, that a

portion of the Commonwealth Office of Director of

Public Prosecutions has been transferred to the

Commonwealth. So in a sense that has been

effected, notwithstanding the terms of

section 52(ii), but we would submit that has not

been done in violation of the section because after

all, it is still done as a decision of the

Commonwealth Parliament expressed in a law of the
Commonwealth Parliament.

BRENNAN J: Well, am I right in thinking this, that on your argument, it is open to the legislature of the ACT to pass a law that a limited amount of water only

shall be spread upon the lawns at Parliament House,

or that protests against an international entity

shall not be disturbed, even though they take place

on the forecourt of the Parliament, and those are

valid laws until the Parliament intervenes at its

next session, whenever that takes place, to

override them?

MR CRISPIN: Well, Your Honour, we would not necessarily go

so far because there is the complication about the

seat of Government and - - -

BRENNAN J: But can you distinguish between seat of

Government and places acquired?

MR CRISPIN: Well, if I could come to that in a moment, we

would take up what the Solicitor for the

Commonwealth has said in relation to that, namely,

in fact I think it might have been the Solicitor

for the Northern Territory, that if one had a

situation where a Territory Government purported to
interfere in what was essentially a parliamentary

function or a matter that was ancillary to a

parliamentary function, the Commonwealth would have	no difficulty in saying that that law would not run
to that extent.

BRENNAN J: At its next session?

MR CRISPIN: Well, it may be that it would need to be

overrun at the next session or it may be that it

would simply be a matter which was fundamentally

inconsistent and not run. But one could take the

analogy a little further. Let us imagine that one

had a parliamentary employee watering the lawns of

Parliament House and some disgruntled house owner

walked up and shot him dead. Now, in our

submission, there would be nothing in section 52

that would preclude the Territory Government from

Svikart(3) 51 7/12/93

exercising power to arrest the person and have him

tried with murder, even if the offence had occurred
on Commonwealth land. We believe that that is the

consequence of the submission for which my learned

friend contends, that one, as it were, delineates

certain areas acquired by the Commonwealth for

public purposes, and suggest that it is simply not

possible, even for the Commonwealth Government, to

provide that a Territory Government will have power

to pass laws that operate in those areas.	Now, we
would ask, with respect, why not?

BRENNAN J:  I suppose the answer is that the shooting of the fellow is the same as Worthing v Rowell, is it not?

MR CRISPIN: Except that Worthing v Rowell occurred, of

course, within a State. And that, we submit, is

one of the unstated premises in this particular

debate. It has almost been put forward by my
learned friend as though Territories - once

Territories acquire self-government, or perhaps

even before they acquire self-government, they are

to be treated almost as though they were States.

They are not, of course, they are a part of the

Commonwealth and we submit they remain a part of

the Commonwealth.

There is nothing inconsistent about section 52

by saying that the Commonwealth Parliament retains

exclusive powers to pass laws in relation to

Commonwealth Territories, as much as it retains

exclusive power to pass laws in relation to

Commonwealth places. Why, indeed, should it be

felt that the Commonwealth power, in relation to

the Commonwealth places, was more extensive than in

relation to Commonwealth Territories.

GAUDRON J: This looks at it entirely from the perspective

of the governing unit. There is another perspective as well. The reason why the

Commonwealth Parliament should have exclusive power

is because it is elected by the people of

Australia, a consideration that does not apply to

the legislatures of the Territories.

MR CRISPIN: Well, that is undoubtedly correct, Your Honour,

but the answer to that is, surely, that the

Commonwealth Parliament is elected by the people of

Australia to govern and to pass laws. The real

question is why, when it is elected by the people,

should its power to pass laws be limited in the

manner which my learned friend contends, and if it

is, what is the language of section 52 in its

relationship with 122 which imports that

limitation. When it is all said and done, the

parliament of any State is elected by the people, but that is not a barrier to a State authorizing,

Svikart(3) 52 7/12/93

by means of the Local Government Act, some other
body, which is elected by a smaller group of

people, which carries out a limited legislative

function or a limited governmental function.

I do not suggest that a Territory government

is entirely analogous to a local government, but

none the less it is a legislature which is created

only at the will of the Commonwealth Parliament,

and it is created only by a law of the Commonwealth

Parliament.

MASON CJ:  Mr Crispin, we will adjourn now and resume at

2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Crispin.

MR CRISPIN:	May it please Your Honours, if I could just return to the question posed by Your Honour
Justice Brennan before lunch.  The position of
course in relation to a Territory enactment purporting to restrict or in any way interfere with the power of the Parliament or any other function of the government is answered by the fact that section 35 of the (Self-Government) Act provides
that the Governor-General may at any time within
six months of the passing of the Territory
enactment simply disallow it.
Indeed, subject to forming the requisite intention and subject presumably to being
sufficiently dissatisfied about it, he may go
beyond that and dissolve the Territory legislature
entirely, but it would not in those circumstances be necessary for the government to wait six months and then pass another statute. Indeed, the
position can be contrasted with that which exists
in the States because, as things stand, we have the Commonwealth Places (Application of Laws) Act which is an example of a statute pursuant to which the
Commonwealth Parliament has exercised its exclusive
power to give effect to enactments of other legislatures in relation to Commonwealth places in
the States.

Really the submission we make is that the

combination of section 52 and section 122 merely

Svikart(3) 53 7/12/93

enables the Commonwealth Parliament to directly

confer upon Territories, subject to the overriding

power to disallow, a power to pass legislation

which will have a similar effect to that which is

achieved by the Commonwealth Places (Application of

Laws) Act.

It would be a very strange result indeed, if

the Commonwealth Parliament had power to make State laws applicable to Commonwealth places, but did not

have power to make Territory laws applicable to

Commonwealth places, and that, we would submit, is

not something that would be readily read into the

Constitution.

Indeed, the whole question of the Legislative

Assembly's power, in a sense it is a subordinate

legislature, it is a little bit - if one can derive

for the moment some comfort of a rather home spun

analogy, it is a bit like giving one's teenage son

some limited autonomy to make some decisions and

saying, "You can use the car if I am not using it,

there is no need to ask", but having a requirement

that he still has to come to one for the keys, and

that, with respect, to us seems to be the position

that the Territories enjoy. They enjoy a limited

Commonwealth power, it is capable of

autonomy but it is at sufferance of the exercise of

being revoked at any time generally, and in

relation to any particular decision, it is capable

of being overridden. So that we would submit that

there is nothing in the overall scheme of the

Statute that derogates in any way from the

constructions for which we have contended.

The only remaining matter to which I wish to advert is the suggestion made earlier in the piece

that section 52(i) would be otiose if our

submission were to be correct. We would submit

that is not the case. Section 52(i) provides that	the Commonwealth Parliament shall have exclusive	power in relation to the seat of government, but
its exclusive power is to make laws for the peace, order and good government of the Commonwealth, not
merely of the Territory. So there is nothing
inconsistent with the proposition that self-
government can be validly conferred upon the
Australian Capital Territory, whilst at the same time the Commonwealth Government reserves to itself the right to make laws in relation to the seat of
government which would apply throughout the whole
Commonwealth of Australia.
For example, it may provide that one might not use the words "seat of Government" other than
pursuant to Government licence, or that certain

Svikart(3) 54 7/12/93

functions could only be carried out at the seat of

Government by excluding there the possibility that

they might be carried out in one of the States.

So, in our submission, it is a logical and ordered

scheme either to find that section 52 is primarily

concerned with distributing powers between the

Commonwealth and States, and that is our primary

submission. We would submit that, in the context

of the debates leading up to Federation, and in the

context of the particular constitutional debates

themselves, section 52 should properly be

considered to be a section which was intended to

say, "These powers are to be exclusive of the

States" rather than to be a section which is

intended to confine the power of the Parliament at

all, or alternatively, that the grant of self-

government is but an expression of that power, and

in either event, the answer to the first two
questions must be answered "no". Unless there is
anything further Your Honours would wish us to deal

with, those are our submissions.

MASON CJ:  Thank you, Mr Crispin. Mr Bennett.

MR BENNETT: If the Court pleases, I propose in the course of reply to do four things. First, to go briefly

through the document which I handed to Your Honours

this morning dealing with the three basic arguments

put against us; secondly, to make some brief

submissions in relation to the words "seat of

government", and how that is reconcilable with the

submissions we make, and I will have a short

document I will hand to Your Honours about that;

thirdly, I will then hand Your Honours a lengthier

document which consists of all three of my learned friends' sets of submissions, reproduced, and then

after each paragraph there is one or two sentences

which we have underlined giving our answer to that

paragraph, and I will take Your Honours very
briefly to that; and, finally, there are one or two

matters I need to deal with which were raised

orally for the first time this morning.
Starting then with the outline of additional
submissions.	The first argument put against us is

a combined one, that there is no need to make the

Territories power exclusive because it already was,

and section 52(i) simply was not intended to apply

to Territories because it is unnecessary, and the

field is covered by section 122. Indeed, every one

of my learned friends has talked about resolving

the inconsistency between 122 and 52, and which one

prevails, and the significance of the words

"subject to this Constitution", and so on.

In other our respectful submission, there is

not the slightest conflict between the two, and a

Svikart(3) 55 7/12/93

decision in favour of my client does not expose any

conflict. The Commonwealth can do anything it

likes under section 122, so long as it does not

violate certain other provisions of the

Constitution, like section 116. It could make

territorial laws apply on Commonwealth places in

the Territory in the same way it has done in the

Commonwealth Places legislation. Indeed, just

adding the words "or Territories" to that

legislation in the operative clauses would totally

solve the present problem.

Indeed, it could achieve the same result in

relation to excises, because there is no reason why

the Commonwealth could not say, "We impose an

excise on X-videos, and that shall be in the form

of such legislation as the Territory has passed or
will pass". There may be questions about

uniformity in relation to excise which involve

slightly different questions, but there is no

inconsistency. My friends have talked as if I am arguing that in some way there is a limitation on

the Commonwealth's power under section 122.	We do
not submit that there is.	We submit simply that if

the power under section 122 is exercised in a

particular way, as it has been, so that the Acts of

the Territory legislature are not delegated Acts
for the reasons given in Apollo Candle, Burah and
Capital Duplicators (No 1), then the Acts of the

Territory legislature are not Acts of the

Commonwealth.

But there is no cutting down of section 122.

The Commonwealth's power remains the same. We put

that a little differently in paragraph a, by simply

saying power is not inconsistent with exclusive

power, and it is really as simple as that.

Moving to paragraph c., the next part of the

submission is the beguilingly attractive one at

first sight, which says, "Look, there is no need
for section 52(i} to extend to Territories.	The
Commonwealth can already control Commonwealth

places and Territories if it wants to under the

Territories power, so why do we need this?" There

are a number of answers to that. The first answer

is that it is inconsistent with the approach taken

by this Court in Russell v Russell, 134 CLR 495,

and it concerned basically the marriage power and

the divorce and matrimonial clauses power.

What the court said, in effect, was that the

fact that two powers have an area of intersection,

does not mean that you have got to read one down in

the area of intersection to allow the other to cover the field. If one has these two circles

which intersect, which are separate grants of

Svikart(3} 56 7/12/93

power, all that means is that in the shaded area in

the middle where they intersect, both grants of

power operate. It does not mean that one has to

read one of the powers down so as to exclude that

little shaded area in the middle because the other

one covers it. And that is said in

Russell v Russell by Your Honour the Chief Justice

at page 539 and, in the middle of that page, just above half-way:

Then it was suggested that the scope of

the marriage power was diminished by the
existence of section 51(xxii.)

The divorce power -

and especially -

a part of it -

a view which was rejected by several members

of the Court in the Marriage Act case. The

argument pays insufficient attention to the

circumstance that it is a Constitution that we

are construing and that the legislative powers that it confers should be construed liberally.

There are substantial reasons for thinking

that an individual grant of power under the

Constitution should be accorded a full

operation according to its terms, unrestricted

by dubious implications drawn from the

existence of another grant of legislative

power touching an associated subject matter.

There is no inherent reason for supposing that

the legislative powers conferred by the

Constitution are mutually exclusive; indeed,

many instances may be given of overlapping

operation.

I suppose lighthouses in the Northern Territory is

another one.

Yet the argument against validity in the

present case not only denies this approach to

construction but advances to a more extreme

conclusion by subtracting from the content of

the marriage power, not only what is contained

within section 5l(xxii) -

by section 22 -

but the entire topic of enforcement -

in my respectful submission, it is exactly the

same. One can get the same by looking at

section 52(ii) which talks about departments taken

over which include the post office. If my learned

Svikart(3) 57 7/12/93

friends were right, a post office in the Northern

Territory would not be the subject of an exclusive power. Indeed, Dao/s case would be decided

differently if it was an ACT or Northern Territory

ordinance which prohibited discrimination in

relation to aspects concerning the employment of

postmen.

So we would submit that it is simply wrong as

a matter of constitutional interpretation to say,

"Look, section 122 covers Territories. Therefore,

there's no need for 52(i) to cover Commonwealth

places and Territories, so we'll read it down by

excluding it." It is simply erroneous

interpretation.

DEANE J:  What if the Act conferring legislative power on

the Territory Parliament had in the relevant

section said "including the power to make laws

regulating conduct on land acquired by the

Commonwealth within the Territory"?

MR BENNETT:  Your Honour, probably the result would then be

different. It would be a question of

interpretation. The words it needs to use to

achieve that result are slightly different and the

question would be whether those words implied the

result.

DEANE J: That is a criticism of my question rather than

helping to answer it.

MR BENNETT:  I apologize; I had not intended it that way.

DEANE J: What I was meaning to convey was: what if the

grant of legislative power to the Territory laws of the kind I indicated.

MR BENNETT:  Your Honour, then, if one could construe such a

grant as meaning, and to do so, notwithstanding

agent, so that its laws take effect as our Burah and Apollo and Capital Duplicators as our laws - - -

DEANE J:  No, I was endeavouring to frame the question as

indicating that it could not be construed that way.

MR BENNETT:  Then one could not do it, Your Honour.

DEANE J: Well then, does that not take you back to first

base in that section 122 would confer a legislative

power to do it? Section 52(i) would deny that

legislative power so, to that extent, you do have

the conflict and what the Chief Justice said in

Russell v Russell is quite contrary to what you are submitting.

Svikart(3) 58 7/12/93

MR BENNETT: Well, Your Honour, there are a number of ways

to deal with that. There is also a problem in
relation to the Elm Street Estates line of country

in relation to what Your Honour has put to me, the

concept of a sovereign not having power to

surrender sovereignty. Your Honour recalls in that case it was held that the English Parliament which, of course, unlike ours is totally sovereign for all

purposes, could not make a law saying future laws

will only be construed as repealing this law if

they expressly say so and shall not be construed as

appealing it by implication. It could not bind

itself or bind its successors in that way.

There is a problem in relation to the surrender of an exclusive power. One can delegate

an exclusive power but one cannot surrender it.

Now, in relation to what is done by self-government

legislation, there is no surrender of power. There

is, rather, an intermediate category of the

creation of a subordinate legislature which acts

not as a delegate but on its own behalf. I suppose

one analogy might be having a child where one

creates a person with a new capacity and capacity

of that person's own.

When one does that one may not delegate indelegatable powers, one may delegate a delegable

power, and one may delegate an exclusive power but

one cannot give it an exclusive power without

becoming inconsistent with the Constitution.

The real answer to Your Honour's question, in

my respectful submission, is the first answer, that

it may well be that one could construe such a

provision as meaning, although every other power

that we have given you in this (Self-Government)

Act is a power not by way of delegation because of

Capital Duplicators (No 1) and the prior cases,

this power is different to all the other powers and

what we are doing is delegating to you our power in that regard. And if the Act had been worded in the

way Your Honour suggests that, we submit, is the

way it would be construed.

Now, one submission - I am going a little bit

out of my order but it is - - -

DEANE J:	No, you deal with - - -
MR BENNETT:	I think it is probably easier if I do give it

to Your Honour now because it is, in a sense,

relevant to this. In relation to the Australian

Capital Territory and the seat of government, one

of the matters I will be directing Your Honour's

attention to is section 29 of the Australian

Capital Territory's (Self-Government) Act which

Svikart(3) 59 7/12/93

answers the question that was raised this morning
about the ringing of bells at 3 o'clock in the

morning, and that says that a law of the Australian

Capital Territory shall operate within the parliamentary precincts unless it is disallowed, in

relation to either House, by a resolution of that

House or generally in relation to parliamentary

precincts by both Houses.

So, in a sense, in relation to the seat of

government, if it is as narrow as that, as

Parliament House, the problem has been dealt with

by an implied delegation to the Australian Capital under section 52(i), and there is no objection to that course. Indeed, as I said before, the

sensible way of achieving that and the easiest way

of achieving it is to add two words to the

operative provisions of the Commonwealth Places Act

or a Territory.

In the absence of that being done, it can be

done by implication. In Your Honour's example, it
would be successfully done by implication.

The proposition at d. on the bottom of page 2

simply turns round the argument which we have heard

in relation to section 90. Section 90, of course,

as this Court did point out in Capital Duplicators,

involves a number of specific policies in relation

to excises and certain types of taxation being

standard throughout the Commonwealth.

But, we must not forget that there was also a

policy behind section 52(i). It is not some sort

of ex ..... which is there and to be distinguished

away every time there is a policy which conflicts with it, and there was a reason why the draftsman of the Constitution chose to grant not ordinary

powers but exclusive powers in relation to

Commonwealth places in the States and, of course,	that was the point made in Worthing and the other
1970 cases. Why, one asked rhetorically, should
there be the slightest difference in relation to a
Territory? Why is not there the same interest in
having exclusive control of Commonwealth places in a Territory as there is in a State? Why should New South Wales not be able to legislate for HMAS
Watson, while the Northern Territory can legislate
for the Darwin airforce base? There is no logical
reason for distinguishing them.

DAWSON J: There is. It is a question of sovereignty, and

if the Commonwealth already has sovereignty over
the whole of the Territory it does not need, but if

it acquires a place in a State, it does not have

sovereignty, it merely has ownership.

Svikart(3) 60 7/12/93

MR BENNETT:  Your Honour, I should perhaps have put the

submission in this way: that if one accepts

Capital Duplicators (No 1) there is no reason for

distinguishing them. With respect, what

Your Honour puts to me is inconsistent with Capital

Duplicators (No 1), and that really is my - - -

DAWSON J: What, by creating a subordinate legislature it is

relinquishing sovereignty?

MR BENNETT:  No, Your Honour, the subordinate legislature is

not acting when it acts as a delegate and,

therefore, is not the Commonwealth when it

legislates in relation to, for example, a

Commonwealth place, and therefore the exclusive

power is not being exercised.

DAWSON J: But the Commonwealth, in giving the power, is

acting in exercise of its sovereignty.

MR BENNETT:	It is, Your Honour, but one then has the question of construction as to what power it is
given and, in Capital Duplicators it was held that one could not say that the Business Franchise
X-Videos Act was valid within the exclusive power
because it was enacted by an emanation of the
Commonwealth or a delegate of the Commonwealth.
That did not bring it within the exclusive power
because - - -

DAWSON J: But whether or not the founding fathers

contemplated self-government in the Territories,

there is a big distinction, when one looks at the

organization of the Constitution, between the
surrender of a Territory to the Commonwealth and
the acquisition of a place in a State, in terms

of power, and that was why section 52(i) - - -

MR BENNETT:	Yes, Your Honour, yes, that is certainly so.
DAWSON J:	You were saying there was none.

MR BENNETT:  I do not say there is no distinction. for present purposes, there is no distinction
because in both cases the relevant body, the State I say,

or the Territory, is not acting as the Commonwealth
or as a delegate of the Commonwealth, and therefore

is excluded from legislating in relation to the

Commonwealth place.

DAWSON J: What is it acting as?

MR BENNETT:  It is acting as a legislature with its own

Apollo Candle or Capital Duplicators independent

will and of its own right. It does not act as a

delegate.

Svikart(3) 61 7/12/93

DAWSON J:  We come back to the same thing we were arguing

about this morning - - -

MR BENNETT:	We come back to the same point.
DAWSON J:	And I am showing the side I was on in Capital

Duplicators (No 1).

MR BENNETT:  If Capital Duplicators had gone the other way I

would not be able to make this submission.

DAWSON J: Yes.

The other matter to which I should refer

briefly here - and this is at paragraph c. on
page 2 - is the reference to seat of government.

52(i) refers to the seat of government and

Commonwealth places. Why would one read the

Commonwealth places as meaning places only in

States when the seat of government was going to be

in a Territory? My authority for that proposition

is the unanimous of the Court in Paterson v

O'Brien, (1978) 138 CLR 276 at page 280, two-thirds

of the way down the page, where a unanimous Full

Court said this:

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 the State of 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 -

we stress those words -

wherein the seat of Government of the

Commonwealth would be sited.	The selection of
that Territory was in the initiative -

et cetera. So this Court has unanimously held that

the Constitution contemplated that the seat of

government would be in a Territory. That being so,
we know that at least the first half of
section 52(i) was not merely intended to apply in

the Territories, it was intended only to apply in

the Territory. Why then should one expect to find

some implication that the second half of the

placitum totally excluded Territories? That is the

first of the three arguments.

The second of the three arguments - this is

page 3 of the submissions Your Honours have - is

the one based on section 111. The argument is that

Svikart(3) 62 7/12/93

placitum 52(iii) picks up section 111 and if that

were con5trued as exclusive in the sense contended

for by the defendant, there could not be a
self-governing Territory. Section 111 of course is

concerned with surrender and that is the way the

Commonwealth acquired the two internal Territories,

although none of the external Territories were

acquired in this way; they were acquired in the

different ways contemplated by section 122.

The first answer to that is a very simple one,

and that is that section 52 creates a dictionary.

It defines the words "exclusive power" and it lays down the provision that wherever the Constitution

uses the words "exclusive" and "power" in

juxtaposition or conjunction. The only section

which does that is section 90. Section 111 uses a

different phrase which is "exclusive jurisdiction",

and we say the use of that quasi synonym

"jurisdiction" takes the provision out of the

dictionary. Lane's Commentary on the Australian

Constitution, paragraph 56 - Your Honours need not

go to it, it is only one sentence, I will read it
to Your Honours - simply says this:

On the element of "exclusive jurisdiction" of the Commonwealth that obtains once there has

been an acceptance, compare s52(i) with its

"exclusive power" leading to a complete ouster

of State laws. However, s 52(i) is concerned

with law-making and Commonwealth proprietary

rights, section 111 with Commonwealth

sovereignty or political dominion.

And he draws the distinction between power and

jurisdiction in that way. The second aspect is

that the argument proves too much. It is really
inconsistent with Capital Duplicators. That held

that "exclusive" meant exclusive of anyone else,

whether a State or self-governing Territory, in

relation to section 90. Section 52(iii), in any

event, applies to section 90, so one cannot give a

different meaning to "exclusive" in relation to the

word that is picked up. Indeed, we would submit,

the primary purpose of section 52(iii) is to give
the word "exclusive" the same meaning in

sections 52 and 90.

The third answer to this argument is to say

that if, contrary to what I have put, section 111

is picked up by 52(iii), there must be an implied

exception to "exclusivity" in relation to acts of the very self-governing legislature set up in the

Territories surrendered under section 111.

It is interesting that there is a statement by

Justice Menzies in Worthing v Rowell - I have given

Svikart(3) 63 7/12/93

Your Honours the reference to it - in which added for logical completeness and should not be

regarded as the key to section 52. His Honour may

well have had this type of argument in mind when he

referred to that. One should not look at

section 52(iii) and by reference to what that

refers to read down the rest of the section.

Finally, a number of my learned friends

referred to the statement by Justice Issacs in Nott

Brothers which talked about "exclusive" in

section 90 meaning exclusive of the States.	The
majority of this Court - I should not say the majority - the judgment of Your Honours
Justices Brennan, Deane and Toohey in Capital
Duplicators (No 1) at page 277 specifically
referred to that and pointed out that it was a

matter of history, not construction, to say that
"exclusive" meant exclusive of State Parliaments,

and the passage in Nott Brothers should be read

that way. Your Honour Justice Gaudron made the

same point at page 290.

So we would submit one simply cannot look at

early cases before self-governing Territories which

said exclusive means exclusive of the States and

regard them as meaning anything. All they mean is

that they are looking at a situation where the only

reference that there could be to exclusivity at the

time it was States. It does not mean that there

could not be other reference.

The third matter concerns the United States

cases. My learned friend submitted that those

cases show that the provisions corresponding to

placiturn 52(i) did not prevent the ..... of the

territorial government running in United States

cases. Might I just hand to Your Honours the

relevant provision in the United States

Constitution, if only for the purpose of	demonstrating that it is very hard to draw any	useful conclusion about interpretation from it
because it seems to be a combination of 52(i), 111
and 125. It uses the phrase:

[17] To exercise exclusive Legislation in

all Cases whatsoever, over such

District ..... 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 -

So it is a combination provision and it is a little

difficult to draw any effective conclusions from

it. But what is important is that none of the

Svikart(3) 64 7/12/93

United States cases refer to the principle in Burah

and Powell v Apollo Candle Co -· not by name. They

do not refer to it in detail and it does not seem

to have occurred to anyone that a territorial

legislature was other than a delegate. That

appears in every one of the cases to which my

learned friend refers, including the case he placed

great emphasis on, the decision of the Supreme

Court of the Colorado Territory in Reynolds v The

People. If Your Honours just go briefly to that

case - it is in the American volume Your Honours

have - Your Honours see at page 181 in the middle

of the page, His Honour says:

The power of congress over a territory is

exerted in establishing a government to which

is delegated -

and we stress that word -

authority to legislate upon all rightful
subjects.

And we really can stop there and say, "aliter here, because of Capital Duplicators" and shut all the

American cases. It is as simple as that. But they

go on to say that it is, about five lines down:

The body politic thus created is not a

sovereignty but an emanation of federal power, standing upon and subordinate to the authority of the central government.

It is very much what Your Honour Justice Dawson has

put to me.

DAWSON J: It seems right to me.

MR BENNETT:  Your Honours, that is the effects of that case.

It should be noted that, if Your Honours have

that volume open, there is a case a little further

on called District of Columbia v Thompson Co.,

346 US. Do Your Honours have that?

MASON CJ: Yes, we have it, Mr Bennett.

MR BENNETT: At page 108 to 110, the number appears in the

top right-hand corner, Your Honours will see on the

copy our learned friends have provided to us, they

have conveniently underlined - I do not know if

that is so on Your Honours' copy - but in the

middle of the page in the second column the words

appear:

There is, however, a suggestion that the

power of Congress "to exercise exclusive

Svikart(3) 65 7/12/93

legislation" granted by Article l ..... is

nondelegable because it is "exclusive." But

it is clear from the history of the provision

that the word "exclusive" was employed to

eliminate any possibility that the legislative

power of Congress over the District was to be

concurrent with that of the ceding states.

That rather ties in with what Your Honour

Justice Brennan put this morning in argument about

the reference to "exclusive jurisdiction" in

section 111 and it is that part of the American

provision which is the counterpart of section 111

that is being referred to there. The exclusive

jurisdiction is exclusive from the transferor.

Two pages earlier, at the page with 104 - 106

in the top right-hand corner, there is another

statement at the very end of the second column:

The power of Congress to delegate

legislative power to a territory is well

settled.

And that is the same point and really we do not

need to go any further to the American cases. They

are analogous to the situation which existed in the

Australian Capital Territory or the Northern

Territory, prior to self-government.

Might I now hand to Your Honours a document summarizing the arguments in relation to seat of

government. This deals with the problem of
reconciling the exclusive power over the seat of

government with the Australian Capital Territory (Self-Government) Act, and Your Honours will see that we say there are three ways of dealing with

that problem.

The first is simply to say that the Australian Capital Territory legislature does not have power	to legislate for the seat of government, whatever
area that is, and the consequences of that may be mitigated by the proposition that it is probably a very small geographical area.

The second way of dealing with it is to say

that exclusive power conferred by 52(i) in relation

to seat of government relates to specific laws,

that is, laws concerned with seat of government qua

seat of government, whereas the exclusive power in

relation to Commonwealth places in plenary. That

involves reading the word as having a different

meaning twice in the same sentence, and it is a

little difficult.

Svikart(3) 66 7/12/93

The third way, and probably the most

attractive, is the one that involves section 29,

and it provides this. The Commonwealth has power

to declare that the laws of some other place, past

and future, will be in force in a Commonwealth

place, as it has done in the Commonwealth Places
(Application of Laws) Act, and it can do the same,

of course, in relation to the seat of government.

Now, section 29 of the (Self-Government) Act

creates a code in relation to the operation of

Capital Territory laws in the "parliamentary precincts" as defined, and that basically is the area inside the ring road around Parliament. Proposition c. would be those parliamentary precincts are co-extensive with the "seat of

government" and, therefore, the Parliament has

specifically directed its attention to the extent

to which Australian Capital Territory laws will

apply within the seat of government and has solved

the exclusivity problem in a way analogous to that

adopted in the Commonwealth places legislation.

This was the argument I was putting to

Justice Deane earlier, and it has not done that in

relation to the Northern Territory, nor in relation

to other Commonwealth places in the Australian

Capital Territory.

Now, it is not necessary for Your Honours to

choose between those alternatives, but I produce

them because it was suggested, in argument, that in

some way the references in section 111 to "eat of

government" have the effect that, if I were right,

the whole of self-government in the Australian

Capital Territory would be invalid, and this just

shows that there were other ways of dealing with

that problem.

Thirdly, might I hand to Your Honours these large volumes which I assure Your Honours there be

no need to go through item by item, but what they

do, as I indicated earlier, is to set out precisely

what each of my learned friends have said, and it

should be verbatim because it is done with a

scanner, and then just put at the end of each

passage my submissions in relation to it, and my

submissions are the underlined submissions. So

anything which is not underlined, such as the first

two pages, is the complainant's submissions first,

then there are the other ones.

I felt it would be inappropriate, given

Your Honours' ruling this morning, to give

Your Honours this document before my learned

friends make their submissions. Your Honours,

starting on page 3, my learned friend has submitted

that section 52(i) does not apply to places in a Territory and, in particular, he has referred to

Svikart(3) 67 7/12/93

the fact that in the early stages of the convention
debates there was a reference in the equivalent to

section 52(i) of the word, "States", and those

words were taken out.

The difficulty with my friend's argument is this: he read to Your Honours, and I will not

repeat, the passage from the convention debates

where those words were deleted, and it is the very,

very last page of the volume he handed to

Your Honours in the 1898 debates, and that passage shows that there was no particular reason given for

the deletion beyond the fact that it should be in
the most general, possible terms. First of all,

that must support my argument, not my learned

friend's. If the deletion of the clause containing

the reference to States was for the purpose of

achieving the most general possible terms, that is

what they have achieved. They made it exclusive

also of self-governing Territories if one ever came

into existence.

More importantly, if one cannot give any

reason for its omission, one certainly cannot

construe the clause as if the words, "deliberately

omitted", were still there, and in my respectful

submission, that is of no assistance.

I have referred to Reynolds v The People. The

specific passages in Capital Duplicators which make

it clear that there is no delegation, or the

passage in the judgments of Your Honours

Justices Brennan, Deane and Toohey at 281 to 282 -

I will not take Your Honours to the passages, but I am giving the reference - and the passage in

Your Honour Justice Gaudron's judgment at 284 point

5 which adopts what Their Honours said. Those

passages make it clear that what is being exercised

by the Territory legislature is not a delegated

power and not, in any sense, Commonwealth power.

My learned friend then refers to The

Commonwealth v New South Wales - we are now on

page 4, and we submit the references to a State in

that case were merely made because the
subject-matter of the case was Commonwealth-owned

land in the State, although we do place some

emphasis on the fact that in one of the passages

referred to, 46 point 6, the words which appear are

"even within a state" which contains a hint that
one might sometimes be outside that, and really it

is the same argument as that which was made by this

Court to the Nott Bros passage. The earlier cases

referred to States because that is all there

relevantly was at the time. Now it is different

and I have referred to those again.

Svikart(3) 68 7/12/93

Then my learned friend makes the submission

that section 52(i) is for the benefit of the

Commonwealth, whereas section 90 is for the benefit

of the people.	He draws a sort of democratic
distinction between the two.	We would submit that

is quite inappropriate. Section 52(i) is also a

provision which operates for the benefit of

affected people. It means they are governed by one

set of laws only. It is not one solely for the

benefit of the Commonwealth any more than

section 90 is. It has wider effects.

The next matter my learned friend submits is that the purpose of section 52(i) does not

logically apply to a Commonwealth Territory.

Because of its very nature it is subject of exclusive jurisdiction of the Commonwealth

immediately on acquiring that status, and the

Commonwealth does not need it. It is interesting

that this argument is really destroyed by the

concession made in the last two lines, because my
friend goes on to say that the Commonwealth does

not need the benefit of a provision for the

exclusivity of its legislative powers over any

place in that Territory subsequently acquired for

public purpose so as to be free of the legislation

and legislative powers of some other political

entity in relation to that place, as there can be

no such other political entity in and for such a

Territory, and then these words "except in so far

as the Commonwealth might have previously chosen to

create one". If it has chosen to create one then

the power is exclusive of that one as well, and it

matters not that it has chosen to create it, unless

it has also given it delegated powers. If it has

not made the powers or the relevant powers

delegated, then the exclusivity still ought to

apply. Your Honours see I have again referred
again to Russell v Russell and Paterson v O'Brien,

which I have taken Your Honours to. Paragraph (e)

is not controversial.

(f) involves the distinction in the

Constitution between the acquisition of political

jurisdiction and the acquisition of title. We

accept my learned friend's point that the reference to Commonwealth places is a reference to title, not

political dominium, but of course the effect of

cases like Worthing v Rowell is that the

acquisition of title leads to the acquisition of

political dominium.

My learned friend then submits in

paragraph (g) that there is a specific problem in

the Northern Territory in relation to continuing

the property, and this is where we refer to

sections 69 and 70. I have taken Your Honours to

Svikart(3) 69 7/12/93

that argument. This was a case where the property

was subject to - it was put to me by

Justice Dawson - acquired and reacquired.

My friend then made some submissions about the

United States.	We simply say that that has nothing
to do with our Constitution.	I have handed up the

relevant provision of the United States

Constitution and Your Honours will see that

although parts of it were adapted in different

provisions, very different forms of language were

used and bits of it were put in quite different

provisions. Those cases really have nothing to do

with our Constitution. Most of them talk about the

concept that does not seem to have existed here of

land being surrendered to the federal government

with some express reservation by the State of some

particular jurisdiction and the surrender being

accepted on that basis. That is a problem which

fortunately Your Honours do not have to consider.

So far as the District of Columbia was

concerned in paragraph (i), as we have indicated,

the cases discussed in the District of Columbia,
notwithstanding the width of the plenary powers

granted to it, are still talked of in the United

States in terms of delegation. They do not seem to

have the magic words concept, if I can call it

that, of peace, order and good government creating

a different type of subordinate entity than the

situation where those words are not used, and

certainly nothing like the reasoning in those cases

is referred to in the United States cases.

My friend then submits that prior to

self-government, the Northern Territory ordinance

has applied to Commonwealth-owned property. Of

course it did. In those days Northern Territory
ordinances were Commonwealth law and therefore were

within the exclusive law-making power.	So we
accept that.

My learned friend then submits there was no

change in 1978 and that the Northern Territory

continues to be a Commonwealth Territory and

subject to the Commonwealth Parliament's plenary

legislative powers, but that is simply

inconsistent, we would respectfully submit, with

the majority judgment in Capital Duplicators. Of

course the Commonwealth may repeal self-government

but, until it does so, the Territory is for

relevant purposes sovereign and Northern Territory

laws are not Commonwealth laws, delegated or

otherwise.

(l) is really the same proposition as was made

earlier in relation to Commonwealth places in the

Svikart(3) 70 7/12/93

Territory. (m) talks about the importance of the

policies in relation to Territories, and we simply

say there is also a strong policy that the

Commonwealth should retain exclusive control of

Commonwealth places, particularly military bases,

and that, of course, is the submission I have made.

We also point this out the exclusivity in section 122 only arises because no one else has the

relevant power. Section 122 does not say the power

is exclusive, it is rather a de facto exclusivity

because no one else could exercise it, and once the

self-governing Territory is created the power
ceases to be exclusive.

In relation to (n) the only matter I want to mention is that Pryce v King cannot stand, in our submission, with Capital Duplicators (No 1) and,

therefore, should be overruled.

My friend then makes a submission about seat

of government, which I have dealt with in my second

document. I simply remind Your Honours that the

suggestion that he makes that the seat of

government might not have been in the Territory was

rejected in Paterson v O'Brien.

Finally, in relation to paragraph 5, my friend

makes a submission, at some length, that there has

been some sort of delegation, and we simply say the

whole point of the majority judgments in Capital

Duplicators is that territorial self-government is

not delegation.

In relation to the submissions for the

Commonwealth, my friend, again, puts the submission

that exclusive power means exclusive of the States.

I deal with that on page 21 and everything that

appears there I have said somewhere else, I do not need to repeat. My learned friend then deals with

the question of inconsistency and I stress that we

do not submit that there is any inconsistency, for	the reasons I have given there.
My learned friend then, in paragraph 3, says, "there is no reason why exclusive power must have
the same meaning in sections 52 and 90". We say
one reason it must is that all that section 52(iii)
is referring to is section 90 and, therefore, if
for that reason alone, the word "exclusive" must
have the same meaning.
My friend then submits in paragraph 4 that in relation to the Australian Capital Territory, the
powers of Parliament under section 122 are not
subject to any limitation by virtue of the
reference to seat of government. We agree with

Svikart(3) 71 7/12/93

that. The powe~s of Parliament are not subject to

the limitation, it is the powers of the ACT

legislature, but the passages which my learned

friend relies on from the judgments of

Justices Kitto and Taylor in Spratt v Hermes must

be regarded as having been overruled by the

majority decision in Worthing, and the statements

in Spratt by the Chief Justice and Justices Menzies

and Windeyer do not affect the present argument,
and the statement by Justice Owen draws a

distinction between the seat of government in the

Territory in which it is situated.

We do stress the reference to the word

"within", which appears in section 125. The seat

of government is within the area of at least ten

square miles, which is to be ceded, so it is

certainly something smaller than the Australian

Capital Territory. Now, as Your Honours have been

reminded, arguments rage as to whether it is

Canberra, or the parliamentary triangle, or an archipelago comprising the various Commonwealth

departments and Parliament House, or just

Parliament House, and Your Honours do not need to

decide that. Although, we would submit, the better

view today is that it is coextensive with the

parliamentary precincts defined in that

legislation.

My friend then makes a submission about the

Commonwealth constitutional interests not requiring

section 52(i) to be read as excluding the power of

a Territory legislature. We would submit that

adequate protection is not a reason for reading

down the provision and it is not, in any event,

adequately protected if it needs to legislate in

order to reverse something. It would be of no

avail to the Commonwealth to know that the

Australian Capital Territory legislature could pass

an Act having some dramatic consequence in relation

Capital Territory or anywhere in the Australian	to military bases, for example, prohibiting warlike activity on military bases in the Australian
Capital Territory, including military bases. It
would be a small comfort to the Commonwealth to
know that when Parliament next sits it can exercise
a power to override that or repeal self-government.
In my respectful submission, the power was made
exclusive because of the importance of Commonwealth places not having different rules and regulations
on them and not being controlled from outside, and
mere adequate protection is not a reason why it should be read down.

It is interesting to note, in relation to the

Commonwealth's submissions in this case, what the

Commonwealth did in relation to the three cases in

Svikart(3) 72 7/12/93

1970. In Worthing v Rowell, which was the first of

them, the Commonwealth, as here, supported the

States and said that "exclusive" did not mean

exclusive of the States and it was unsuccessful.

In the second of the cases, the Stocks and Holdings case, no doubt mindful that the Commonwealth was going to put something again contrary to what one would have thought its interests were, the Court

declined leave to intervene to the Commonwealth,

although it granted leave to the States.

By the time of the third case, the

Commonwealth got the message in Phillips' case and

supported the view point that exclusive

jurisdiction prevented the writ of Western

Australia running on the Perth air force base.	It
seems that we may be going to go through the same
cycle, perhaps leaving out the middle one, in
relation to any cases in this line. We would
submit it is somewhat surprising that the Commonwealth makes a submission as it does.

Commonwealth power, we would submit, in this case,

is exclusive; it is important that it be exclusive

and that exclusivity should be maintained.

Turning to the submissions on behalf of the Australian Capital Territory - and I am on page 28

now - the submission is made that place is used in

contradistinction to Territory acquired from the

Commonwealth under section 111 and, upon

acquisition of a Territory - and this is what is

only presumably acquisition under section 111, so

it is only the two internal Territories - the

Commonwealth obtains exclusive jurisdiction at

section 111 and the power to make laws in
section 122. Section 52 is concerned with the

rights of the Commonwealth, vis-a-vis the States

and refers to places within States. We submit that

last sentence is a non-sequitur; nothing that has

gone before leads to supporting it and, in any

event, it does not sit well with Capital

Duplicators.

My learned friend then submits that

section 122, which is a source of power for
territories, and that is as large a power as can be

granted, therefore there is no room for further

powers. That simply ignores the intersection

argument which I put earlier and there is no reason

why one cannot have overlapping powers and Russell

v Russell shows that that submission is wrong.

Paragraph 3, my learned friend submits that,

in a practical sense, the Commonwealth can always

acquire ownership of the land. It is not going to

occur in the Australian Capital Territory where the

land is owned by the Commonwealth and merely leased

Svikart(3) 73 7/12/93

to others, where an acquisition would only involve

termination of a lease. That, of course, would not have been known at the time of the Constitution and we cannot really construe the Constitution by

reference to it, but in any event, until quite
recently there was freehold land in the Australian

Capital Territory at Hall, Tharwa and The Oaks

Estate.

The next submission concerns the displacement

and I have said there is no pro tanto displacement

of section 122 for the reasons I have given. There

is then a submission in relation to the importance

of the free trade zone. My friend calls it a

trade-free zone, but perhaps an unfortunate

reference. That was a factor in Capital

Duplicators. We would submit not the decisive

factor, and here, instead of the arguments based on the free trade zone, we have the arguments based on

the importance of exclusive control over

Commonwealth places.

DEANE J:  Mr Bennett, can I divert you for a moment, because

it is something that is operating in my mind and

has not been expressly referred to, and that is:

what do you say about what was said in the joint

judgment in Teori Tau? That is 119 CLR in the two

central paragraphs on page 570.

MR BENNETT:  I am sorry, what volume did you - I have the

volume here, it is just - - -

DEANE J: It is 119 CLR page 570.

MR BENNETT:  Page 570?

DEANE J: At page 570, and I have in mind the second and

third paragraphs commencing on that page. If you

would prefer to distinguish them subsequently, I

would be quite happy for you to.

MR BENNETT: If I may have a moment - Your Honour, we would

not depart from that. Section 51 is not laying

down exclusive powers; it is laying down powers,

and the mere fact that there is an intersection

between two powers does not mean they both do not
operate. If I can take the simple example of a

lighthouse - if one has a lighthouse in Darwin, the

Commonwealth could build it under the lighthouses

power; it could, leaving self-government aside for

the moment, build it under the Territories power,

and it could control it under either power quite

effectively.

There is no need to read one down by reference to

the other. The problem which arose in that case

was because placitum (xxxi) had been construed as

Svikart(3) 74 7/12/93

containing a limitation on other powers, and the the powers in section 51 and not on the power in

section 122.

DEANE J:  Perhaps I should explain the way I was asking you

to address it. Section 51, which is stated to be

subject to the Constitution, confers federal

powers, some of which have been construed as

containing a limitation by reference to subsection

(xxxi). It could be argued that section 52

likewise confers federal powers subject to a

restriction relating to their exclusive nature.

Now, the query arises: why conceptually? Is it

different to saying that the conferral of power
subject to a limitation by section 52 has an effect

on section 122's conferral, that the conferral of

legislative power subject to a restriction by some

of the paragraphs of section 51 does not have?

Have I made clear the area that I am - - -

MR BENNETT:  Yes, Your Honour has made it clear, and I would

like leave to consider it further at the end of

today, and perhaps have a short submission. But

may we just say this at the moment: the primary

answer, we would submit, is that exclusivity is not

a restriction on power. If anything, it is an

extension of it, or it is something added to it,

something independent of it.

DEANE J:  I do not want to take time, but you are missing

the point I was trying to raise with you earlier,

and that is: in one sense exclusivity is not a

restriction on power, but in this context it is in

that the exclusivity restricts the power which

would otherwise have existed under 122 to confer

legislative competence on the Territory

legislature.

MR BENNETT:  It does not restrict it so long as in

conferring that legislative competence it does so

as delegate, and that may be little more than

describing the power in an appropriate way.

DEANE J:  I understand that that is really saying, well, it

restricts it but the restriction does not matter in

terms of practicalities.

MR BENNETT:  Your Honour, it goes back to the surrender of

sovereignty.	Your Honour and I had this debate
earlier.	The restriction is merely a restriction

on the surrender of sovereignty. It is not a

restriction in the sense that there is any limit on

the extent of the Commonwealth's power to

section 122.

Svikart(3) 75 7/12/93

DEANE J:  I do not want to take time, but section 122 says

that the Commonwealth Parliament can create a

legislature with full powers to make laws,

including powers dealing with acquired places.

Section 52, on your argument, says unless it does

it in a particular way the Commonwealth Parliament

cannot do that.

MR BENNETT:  The other answer, Your Honour, is this, that

assuming Your Honour was against me on the first two answers I put, there is a difference between

the way in which the limitation in placitum (xxxi)

operates and the way in which the reference to

exclusivity in section 52 operates, in that

placitum (xxxi) has been construed as an express

derogation from power.	A reference to exclusivity
is only a derogation from power	, an impli)d way
in a particular, probably unfore. ~en, context.	And

there is a difference between taking a derogation
of that nature and trying to construe whether it is
intended to applied to the other section, and the
derogation of the very clear nature which

placitum (xxxi) imposed.

McHUGH J: But do you not have to really say, relying on the

passage in 279 in Capital Duplicators case, that

section 122 should not be construed as authorizing

the creation by the Parliament of a new legislature

for an internal Territory with power to effect

Commonwealth places. I mean, the majority in

Capital Duplicators did not see the exclusivity

brought about by 5l(ii) in section 90, or saw

them - did not see 122 as - - -

MR BENNETT: That is so, Your Honour, and in a sense, the

argument which Your Honour Justice Deane puts to me

is, for that reason, inconsistent with Capital

Duplicators because it could have been raised in a

slightly more convoluted way in that case itself.

DEANE J: Well, I do not think that follows. I mean, there

is nothing in the majority judgment in Capital

Duplicators that says there is no tension between

section 90 and section 122 and there was no need in

Capital Duplicators to point to the effect of

"subject to this Constitution" in section 52 and

section 51, because it was not there in section 90.

MR BENNETT: Except in so far as it is incorporated by

reference by section 52(iii).

DEANE J: Well, that is if you see section 52(iii) as the

source of power to which section 90 refers, which
is contrary to the view that has commonly been

taken that you look to the taxation and the bounty

power as the source of power.

Svikart(3) 76 7/12/93

MR BENNETT:  Yes, but Your Honour, we would submit the words

ttsubject to thi~ Constitutiontt in section 52 are

intended to deal with the clearly conflicting

provisions. The obvious one is section 116,

section 99, and perhaps section 92 even, where the

Commonwealth exclusive powers of the Commonwealth

are nevertheless not to be exercised in a manner

contrary to the Constitution. But it does not

mean, we would submit, that one reads down

section 52 in any way, or the exclusivity, a

reference to the section 122 power.

DEANE J: But I am taking you back, Mr Bennett. I

appreciate the way you have put it.

MR BENNETT:	Your Honours, I think the remainder of the matters I have referred to in that document are
matters which I have already covered. May I,
finally, just say a few brief things about the
arguments put this morning by my learned friend,
the Solicitor-General for the Northern Territory,
and these will be very brief.

The first matter relates to section 52(ii),

the public service. Your Honour Justice McHugh

asked my learned friend, the Solicitor for the

Northern Territory, about that and, in my

exclusivity must extend both to Territories and to	respectful submission, that makes it clear that relation to a department which was physically in a
Territory, particularly of course the Australian Capital Territory.

The second matter was that my learned friend

submitted that under the Northern Territory

(Self-Government) Act there was exclusive power as

a matter of construction. In my submission, there

is nothing in the Northern Territory

(Self-Government) Act which has that effect. It does nothing more than use the simple formula of

the type used in Capital Duplicators, peace, order
and good government.	What is missing is an

adoption of its acts; an adoption of the child's

acts, if one likes, as the acts of the parent.

That is something which appears in the Commonwealth

places legislation, it is something which is

implied by virtue of section 29 in relation to the

seat of government in the Capital Territory

legislation, but it does not exist otherwise in the

Northern Territory or Capital Territory legislation in relation to Commonwealth places.

Finally, my learned friend referred to

Roughley's case and to Quick and Garran. It was my

learned friend, the Solicitor-General for the

Commonwealth, who referred to Roughley's case. I

Svikart(3) 77 7/12/93

just wanted to say one brief thing about that.

Roughley's case is reported in 42 CLR 162. I do

not think Your Honours received a reference to it,

though it is referred to in my friend's

submissions. The point I wish to make about it is

that my learned friend referred to it as authority

for the proposition that section 111 is an

exclusive power. In fact the judgment of

Justice Higgins in that case does not say that.

The passage is at page 198 at about point 8 and it

discusses section 52 and section 90 and then after
the word "exclusive", simply says, "see sec 111".

It has no other reference to it, and our submission is that the context of the reference to

section 111, if anything, suggests that section 111

is different from section 90 in that respect.

Certainly, one cannot cite Roughley's case as

authority for the proposition that section 111 is to be in the same category. The passage in Quick

and Garran, in my respectful submission, is in that

respect simply incorrect. Your Honours, I seek

leave within seven days to provide short written

submissions in relation to the question asked by

Justice Deane concerning Teori Tau and that aspect

of section 52.

MASON CJ: That is granted.

MR BENNETT: Subject to that, those are my submissions.

MASON CJ: The Court will consider its decision in this

matter.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

Svikart(3) 78 7/12/93