Svikart v Stewart

[1993] HCATrans 238

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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

Ex parte -

ATTORNEY-GENERAL OF THE

NORTHERN TERRITORY

Applicant

Application for removal
pursuant to section 40(1) of

the Judiciary Act 1903

Svikart 1 25/8/93

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 25 AUGUST 1993, AT 10.19 AM

Copyright in the High Court of Australia

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

Territory:  May it please the Court, I appear for

the Attorney-General for the Northern Territory to

remove into this Court a matter that raises for

consideration where the laws made by the

Legislative Assembly of the Northern Territory

apply to Commonwealth places in the Northern

Territory. (instructed by the Solicitor for the

Northern Territory)

Your Honours, the application book shows the

nature of the problem in what I might respectfully

say are good preliminary views by the magistrate.

DAWSON J:  How is the Air Force Base a place acquired by the

Commonwealth for Commonwealth purposes? It is the

Commonwealth's.

MR PAULING: 

No. At the time of self-government, all the

land in the Northern Territory that was vested in
the Commonwealth became vested in the

Northern Territory, subject to the right of the minister to advise the Governor-General that the

Commonwealth required some land back to be vested

back into the Commonwealth, and that is what happened in relation to all land that is now

Commonwealth places.

TOOHEY J: It was done by notice, was it not, under the

Self-Government Act?

MR PAULING:	Yes, it allowed a year.
TOOHEY J:	The Commonwealth allowed, what, 12 months in

which to serve notice to the effect of revesting

the land in the Commonwealth.

MR PAULING: Yes, that is right.

DAWSON J: But is not the Northern Territory a Commonwealth

entity?

MR PAULING: Well, it is a - according to Capital

Duplicators, because it is a self-governing

Territory, but it has - - -

DAWSON J: Is the Territory Commonwealth Territory?

MR PAULING:  We say that the land that is not Commonwealth

land - that is registered as Commonwealth land in

the Northern Territory - is vested in a body

politic under the Crown which, whilst not a State,

order to say that the land vested in the Northern is none the less not the Commonwealth. So that in equate the Territory with the Commonwealth - - -

Svikart 2 25/8/93

DAWSON J: It is a creature of the Commonwealth, is it not;

it is created by the Commonwealth?

MR PAULING: Yes, but that does not mean that it is the

Commonwealth, nor does it mean that all of the

Northern Territory is Commonwealth land.

DAWSON J: It is not a State.

MR PAULING:  No, but it is not the Commonwealth either. For

work out the relationship between section 52(i) of the Constitution and section 122, it seems to me that this case raises that issue very squarely.

that reason, I suppose, whilst it has been possible

in many earlier cases and possible in Capital

TOOHEY J:  The notice of motion really forecloses to some

extent the issue, does it not? It describes the

base as a Commonwealth place within the meaning of

section 52(i), which may, in view of what

Justice Dawson said, prove to be an issue.

MR PAULING:  It may do so. We anticipate that between now

and whenever the matter is heard that a number of
other matters, but relating to other places like

the post office and a national park, are likely to

come before the courts in a way that - - -

DAWSON J: But you see, the purpose of section 52(i) is to

subject Commonwealth places to Commonwealth law,

but the Air Force Base is subjected to Commonwealth

law. The Commonwealth can pass a law with respect

to that at any time, and no other legislature can

really, except a delegate of the Commonwealth.

MR PAULING: That is part of the argument that will have to

be dealt with.

DAWSON J:	Anyway, we have no discretion, have we?
MR PAULING: No, I appreciate that, Your Honour. There are

two other matters I wanted to say, that it would be

the situation that if these other cases involving

other places and other circumstances get before the

courts in time, it may be that we would seek to

have them removed as well on the basis that that

would give the broadest range of factual situations

that might inform on the matter.

I also wanted to say that at the moment the

situation appears to be that the Commonwealth

assert that Territory laws do apply on Commonwealth

places, including the RAAF Base in Darwin, and we

would want to argue that point. For the Northern

Territory, we are a bit schizophrenic at the moment

Svikart 25/8/93

as to which point we want to take, but there will

be at the time it comes on a genuine contra dicta.

BRENNAN J: Well, that raises two questions does it not?

The first is to ensure that there is a genuine

contra dicta and, in this case, I should have

indicated that there was a certificate that the

deputy registrar has provided with reference to the

position of the respondent to the complaint, that
the respondent would not appear in these

proceedings, and that future appearance may depend

upon funding.

MR PAULING: Yes, we have agreed to fund senior counsel to

appear on behalf of the defendant, and to argue the

issue, the identity of that counsel depending on

how much urgency the Court believes the cause

deserves.

BRENNAN J: In all events, funding for the respondent will

be at the expense of the applicant?

MR PAULING: Yes.

BRENNAN J:  The second question is, in your notice of motion

the concluding phrase which is "a Commonwealth

place within the meaning of section 52(i)" may

itself be the subject of discussion, may it not?

MR PAULING:  Yes, it may.

BRENNAN J: So, if an order was made in accordance with the

notice of motion excluding that phrase you would

have no objection?

MR PAULING:  No, that is why, I think, with these other

matters that we anticipate being able to remove,

there is a particular area where land was acquired

by the Commonwealth for the purposes of building a

post office and the post office was built and it is

land acquired well after self-government and so on,

then may not raise the sort of problems that might

be anticipated with a RAAF Base that belonged to

the Commonwealth before self-government.

TOOHEY J: But, the Court would need the information, or

enough information, to allow it to determine the

question.

MR PAULING:  Yes, that is why we are trying to hurry things

through the preliminary stages so that facts might

emerge, and that the question be stated but not

answered in the lower court.

BRENNAN J: Is it possible to have the facts elucidated

before it comes here?

Svikart	25/8/93
MR PAULING:	Yes.
MR PAULING:	Yes.
BRENNAN J:	How, if this notice of motion is persisted in?
MR PAULING:	I am sorry? In relation to the matter

presently under - - -

BRENNAN J: In relation to the status of the RAAF Base.

MR PAULING:  I will have to think about how to deal with

that, but it may well be that as a matter of

constitutional facts one could set out by way of

affidavit - perhaps the Commonwealth could do it -

the history of the RAAF Base in terms of what has

happened in terms of title and control and matters

of that sort.

TOOHEY J: But are you not saying that its status really

depends upon the action of the Commonwealth acting

under the provisions of the Self-Government Act?

Or does the story go back any earlier than that?

MR PAULING: That is my primary argument, Your Honour.

TOOHEY J:  I was not thinking of it as a matter of argument,

just as a matter of how the status of the land is

to be determined.

MR PAULING: Well, that would then be determined simply by

approving the gazettal by the

Governor-General - - -

TOOHEY J: That is what I mean. It may not involve any

earlier history than the giving of the notice.

MR PAULING:  Yes. The subsidiary argument that the

magistrate was dealing with was whether or not

roads on the RAAF Base were open to or used by the

public.	He then got on to what really is the
initial question that has to be answered, "You

would say whether or not such roads are open to or

used by the public is only a question that arises

if the Traffic Act applies. " The Traffic Act may

or may not apply depending on one's view of 52(i).

BRENNAN J:  Mr Solicitor, as we have no option in the

matter, an order will have to be made but it will

be made on the terms that, of course, if the facts

in relation to the status of the RAAF Base require

elucidation, then the matter may be remitted by

this Court to some other court for the

determination of those facts if the parties cannot

otherwise satisfactorily deal with the matter.

Svikart	25/8/93
MR PAULING:	Yes, I believe we will be able to come to some

agreement, at least between the parties, that

should be satisfactory to the Court saying these

are - - -

BRENNAN J:  Would they involve not only the parties but the

Commonwealth?

MR PAULING:  Yes. But on the basis that they would be

constitutional facts.

BRENNAN J: Well, whatever the nature of the facts may be.

MR PAULING:	Yes, Your Honour.
BRENNAN J:	Mr Solicitor, can we take it that your notice of

motion may be acted upon by this Court, leaving out

of account the words, "which is a Commonwealth

place", and the following words in the last two

lines.

MR PAULING: Yes, Your Honour, you may do that.

BRENNAN J:  Then there will be an order in accordance with

the notice of motion amended by the deletion of the

words, "which is a Commonwealth place within the

meaning of section 52(i) of the Constitution".

MR PAULING:  Yes. I do not know whether Your Honours wish

to say anything about the extent to which some

urgency or expedition might be given such a matter,

bearing in mind that if - - -

BRENNAN J: That will be a matter for representation by the

parties and the interested interveners to the

Chief Justice.

MR PAULING:	As Your Honour pleases.
AT 10.30 AM THE MATTER WAS ADJOURNED SINE DIE
Svikart	25/8/93