Lamshed v Lake

High Court of Australia|1958-04-17|Before: Taylor JJ

For the reasons given by the Chief Justice I would answer the question in the case stated by the parties, No.

The question to be decided in this case concerns the validity of s. 10 of the Northern Territory (Administration) Act 1910-1955 Cth., a provision inserted in the Act by an amendment made in 1931. The section provides, in terms adapted from s. 92 of the Constitution and obviously intended to have a similar meaning, that trade, commerce and intercourse between the territory and the States, whether by internal carriage or ocean navigation, shall be absolutely free.

The Parliament of the Commonwealth is empowered by s. 122 of the Constitution to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth. The Northern Territory is such a territory. If s. 10 of the Northern Territory (Administration) Act applied only within the confines of the Territory, it would plainly be valid as a law for the government of the Territory. But it is relied upon by the defendant here as operating outside the Territory and in the State of South Australia. We must decide whether such an operation, clearly enough within the intention of the section, is authorised by s. 122.

If, in the context of s. 122, the expression "laws for the government of any territory" means only laws for any territory, s. 10 must be invalid so far, at least, as it would apply elsewhere than in the Northern Territory itself. When the fuller expression "laws for the peace order and good government of" an area is found in such provisions as ss. 51 and 52 of the Commonwealth Constitution and in the Constitution Acts of the several States (e.g. in s. 5 of the Constitution Act 1902 N.S.W.), it is limited to laws operating in and for the area. We are invited to decide that the expression in s. 122 has a similar meaning. The power which that section confers on the Commonwealth Parliament, it is said, is the same as that which a State Parliament has in respect of its State; and as a corollary, a law made under the authority of the section cannot operate outside the particular territory for which it is made.

In my opinion it would be a mistake so to decide. It seems to me that it is necessary only to read s. 122 in its context to see that it is different in nature from enactments which confer powers upon the legislative organs of communities to make laws for the government of their own communities. Enactments of that kind are necessarily to be understood as giving power which, though plenary, extends only to regulating the legal situation within the borders of the relevant area. Section 122, however, appearing as it does in the Constitution of a federation, confers on the legislative organ of the federation plenary power in respect of such areas as may be offered to and accepted by the federation so as to become territories to be governed by the federation. Both the character of the Parliament and the nature of a federal territory are overlooked when the section is likened to a provision such as s. 5 of the Constitution Act of New South Wales. Section 122 is a grant of power, not for the government of a community by a legislature established for it, but for the exercise of superior authority over a community by the legislature of another community. The repository of the power is the Parliament which exists primarily for the government of the federation. Possessing that character, it is given the additional power of making "laws for the government" of each territory which comes under federal control. Can this mean anything less than that the federation, acting by its legislative organ, may deal with the whole subject of running each such territory as a federal territory. It has sometimes been remarked that the placing of s. 122 in a late and not altogether appropriate position in the Constitution does less than justice to the far-reaching importance of the subject with which it deals. But the fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories. If that necessity is recognised, the section cannot fairly be read as meaning that the national Parliament, when it turns to deal with a territory which has come under the nation's authority, shall shed its major character and take on the lesser role of a local legislature for the territory, concerned only to regulate the local law. Surely it means that a territory which has been accepted by the Australian Federation may be fitted into the Australian scene, so far as laws are concerned, by the legislative activity of the Australian Parliament: that the entire legal situation of the territory, both internally and in relation to all parts of the Commonwealth, may be determined by or by the authority of Parliament. For what may or may not happen in the States with respect to a territory surely has as much to do with the way in which the territory is being governed as a territory of the Commonwealth as what may or may not happen in the territory itself.

Accordingly I am of opinion that s. 10 of the Northern Territory (Administration) Act validly operates in South Australia as a law of the Commonwealth. I make no attempt to discuss the matter in detail, because the ground is, to my mind, completely covered in the judgment just delivered by the Chief Justice. In that judgment I entirely agree.

I am in entire agreement with the reasons prepared by the Chief Justice and, accordingly, I am of the opinion that the questions raised by the case stated should be answered in the negative.

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Kitto and Taylor JJ. Lamshed v Lake [1958] HCA 14

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (1)