Newcrest Mining (WA) Ltd v Commonwealth

Newcrest Mining (WA) Ltd v Commonwealth - [1997] HCA 38 - HCA 1989 case summary — Zoe

[127]

By analogy, no legislature in an Australian State has power to enact laws for the compulsory acquisition of property in another State or in a Territory. Nor can a law of a territory under s 122 - in which I include a law enacted by the Parliament of the Commonwealth for the government of a territory - authorise the compulsory acquisition of property situated in a State. The nexus which is sufficient to attract the support of s 122 to a law providing for the compulsory acquisition of property is that the property be situated within the Territory. It is not sufficient that the acquisition is for a territorial purpose or that some personal nexus between the territory and the owner of the property be established. The federal compact permits property to be compulsorily acquired in a State pursuant to a law of the Commonwealth but the terms on which that is provided for are set out in s 51(xxxi). If the territories power could be exercised to acquire property in a State, it could distort or affect the operation of those provisions of the Constitution which express the federal compact and protect the constitutional interests of the people living under it. [54] But the structure of the Constitution shows that, as between the Commonwealth and the States, the powers of the Commonwealth are those conferred in Chs I to V and that s 122 confers power on the Commonwealth as an additional or supplementary power for exercise in performing the function of governing the territories, but not as a power which enlarges the powers of the Commonwealth to make laws for the peace, order and good government of the Commonwealth pursuant to the federal compact. That is not to deny that a law enacted by the Parliament under s 122 has the character of a law of the Commonwealth. I would respectfully agree with the views expressed by Dixon CJ on that question in Lamshed v Lake [55] except that the scope of s 122 needs to be stated in more restricted terms than those used by Dixon CJ [56] in order to preserve the federal compact and to protect the constitutional interests of the people living under it.

[752]

An explanation for this differentiation may exist in the history of s 51(xxxi). The location of the provision in the list of the Commonwealth's legislative powers suggests that it was not conceived of as a constraint on power but as an affirmative contribution to that power, although on the condition stated. In their text of 1901, Quick and Garran explained that the addition of the provision was proposed at the 1898 session of the Constitutional Convention to overcome doubts which were expressed that the proposed Federal Parliament would not have "a right of eminent domain for federal purposes". [429] The Framers had recourse to the provisions of the Fifth Amendment to the United States Constitution. The terms of s 51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms". [430] The function of the paragraph as a grant of federal power has long been accepted by this Court. [431] The function of s 122 is different. It was not part of the assignment of powers as between the new federal polity and the States, which was the general concern of s 51. To that extent the territories power in s 122 has been described as "non-federal" in its essential character. [432] Similarly, the territories have been described as not being "part of the Federal system". [433] The federal compact between the former colonies and the new Commonwealth was to be contained in the first five Chapters of the Constitution. They established a "special universe of discourse". [434] Upon this view, s 122, found in Ch VI, deals with a fundamentally different topic entirely within the Commonwealth's governmental concerns. [435] It was the realisation that the power to make laws for the government of the territories stood outside the federal system that led Kitto J in Spratt v Hermes [436] to "recant" [437] the opinion which he had earlier expressed in Lamshed v Lake . [438] Whilst for some purposes a territory was part of the Commonwealth, for the purposes of the limitations placed upon the powers of the Federal Parliament under the federal compact with the States, s 122 was to be viewed as separate and distinct. Some textual support for this view exists in the language of s 51(xxxi). The paragraph refers expressly to "acquisition from any State or person". There is no reference to acquisition by or from a territory. The words lend some support to the view that such acquisitions were to be regarded as exclusively within the power granted by s 122.

[754]

Nor can it be said that Teori Tau stands as an anomalous exception to the Court's jurisprudence with respect to the s 122 power. On the contrary, it is consistent with a series of decisions which emphasise the unique nature of s 122 and the legislative power which it affords. In Buchanan v The Commonwealth [440] it was held that the limitations imposed by s 55 of the Constitution on the making of laws imposing taxation applied only to laws made under the power conferred by s 51(ii). It did not apply to a law made under s 122. Accordingly, the requirements of s 55 of the Constitution were inapplicable in a territory. In R v Bernasconi [441] it was held that the protections of s 80 did not apply to a law made under s 122. In Lamshed v Lake [442] it was held that s 92 was not applicable to trade, commerce and intercourse between a territory and a State. In Spratt v Hermes [443] it was held that the guarantees in s 72 with respect to the appointment, tenure and salary of members of the federal judiciary were not applicable to courts created by, or pursuant to, laws made under s 122. In Capital TV and Appliances Pty Ltd v Falconer [444] it was held that the Supreme Court of the Australian Capital Territory was not a federal court, nor a court exercising federal jurisdiction and, accordingly, that this Court had no jurisdiction, pursuant to s 73, to entertain an appeal from it. In Svikart v Stewart, [445] it was held that s 52(i) did not apply to places in the Northern Territory acquired by the Commonwealth for public purposes. There are other cases in the same line. [446] Moreover, the correctness of the Court's holding in Teori Tau has either been implicitly or expressly accepted in later decisions. [447] Insofar as dicta of the Court disclaim the theory that territories are "disjoined from the rest of the Constitution " [448] such disjunction is refuted except in respect of lawmaking power for the territories or where provisions of the Constitution are, in terms, apt to apply only to the States. [449] Insofar as more recent decisions of the Court have raised questions about the scope of s 122 and its relationship with the other provisions of the Constitution [450] and the implications therefrom, [451] these decisions may be supported by the proponents of Teori Tau by the particular matters they dealt with. Notably, the holding that s 90 of the Constitution (within Ch IV) precludes the Legislative Assembly of a territory, established pursuant to s 122, from imposing duties of excise is explained by the suggested distinction between the express prohibition in s 90 and the restriction on the exercise of federal power in s 51(xxxi).

[755]

Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564 at 570. 2. Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 241 per Barwick CJ. 3. See for example Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 79 per Starke J, 85 per Dixon J; Berwick Ltd v Gray (1976) 133 CLR 603 at 607 per Mason J. 4. Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 640. 5. Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 641. 6. Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349-350. 7. Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529; [1957] UKPCHCA 1; [1957] AC 288 at 545 at 320. 8. Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582 at 585. 9. Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 250. 10. Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529; [1957] UKPCHCA 1; [1957] AC 288 at 545 at 320. 11. Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 250. 12. So described by Dawson J in Kruger & Ors v The Commonwealth of Australia, unreported, High Court of Australia, 31 July 1997 at 27. 13. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 142, 143. 14. Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 241-242; cf Bonyhady, "Property Rights" in Bonyhady (ed), Environmental Protection and Legal Change (1992) 41 at 73; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 156-157. 15. Buchanan v The Commonwealth [1913] HCA 29; (1913) 16 CLR 315. 16. R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629. 17. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132. 18. Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226. 19. Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591. 20. Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548. 21. See for example Mitchell v Barker [1918] HCA 13; (1918) 24 CLR 365 at 367; Edie Creek Pty Ltd v Symes [1929] HCA 37; (1929) 43 CLR 53 at 56; but cf Mainka v Custodian of Expropriated Property [1924] HCA 20; (1924) 34 CLR 297. 22. See for example Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 6; Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at 269; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 169. 23. Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 85. 24. For example all provisions of Ch V of the Constitution save for s 116. 25. For example Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at 266, 271-273. 26. Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 176-177; cf at 162 per Brennan J, 246 per McHugh J.

[767]

The contrary view can also be tested by the bizarre consequences which would flow according to its logic. They suggest that the opposite interpretation should not be accepted. For example, the "plenary" view of s 122, taken to its extreme, led Gibbs J to question whether the guarantee in s 116 of the Constitution against the making of federal laws for establishing any religion applied to federal laws for the territories. [463] Although Barwick CJ, delivering the judgment of the Court, drew back from this consequence in Teori Tau [464] it is, in truth, a logical extension from totally disjoining s 122 from the rest of the Constitution. After all, s 116 appears in Ch V titled "The States". An uncompromising view of the separateness of the several Chapters of the Constitution, and the particular separateness of s 122, supports Gibbs J's opinion. Yet it scarcely seems likely to have been the purpose of the Framers. It is not necessary to the constitutional text which they adopted. At least it is not necessary if the unity and integration of the whole draft is respected. [465] Nor is the thesis that s 51 is confined to "federal", as distinct from territorial, concerns convincing. It has been commonly assumed that s 51(xxxix) is available to expand the power conferred on the Parliament by s 122 to make laws for the government of any territory. [466] Yet once that supplementation by s 51 is acknowledged as a possibility, it is untenable, in logic, to adhere to the strict divide. If the incidental power is available to permit the Parliament to enact a law having extra-territorial operation outside a territory (as this Court has held [467] ), the logic of that determination must be that acquisitions effected by the Commonwealth under a law made by the Parliament reliant on s 122, although in a State or even from a State, would not entail the constitutional entitlement to "just terms". Such a proposition has only to be stated to show the absurdities which result from such a rigid disjunction of the territories power from the rest of the Constitution.

[768]

The more recent authority of this Court has evidenced a gradual retreat from the approach of complete disjunction and a return to Dixon J's insistence upon viewing the territories power in its context in a Constitution established by and for the people of Australia for the entire government of their country, including the territories. [468] Perhaps this movement reflects an appreciation of the changes of the political realities upon which the Constitution must operate as much as fresh insights into the text and this Court's decisional authority. No longer is s 122 of the Constitution necessary for the contemplated or prospective government of colonies such as Papua-New Guinea and Fiji, with their distinct needs, as originally envisaged when the Constitution was drafted. [469] Now, the power must be read as part of a constitutional document providing for the government only of the Australian people, including those who live in the mainland and island territories of the Commonwealth. They constitute one people and Australia is one country. [470] It is for such a people and country that the provisions of ss 51(xxxi) and 122 must now be understood and applied by this Court. The only way to avoid absurd results, out of joint with contemporary realities, is to read s 122 as subject to the expressed and implied safeguards, restrictions or qualifications appearing elsewhere in the Constitution. Doing so requires the overruling of the authority of Teori Tau . It may also require some reconsideration of other earlier decisions of this Court affecting the territories. [471] The process of the reintegration of s 122 with the rest of the Constitution has already begun. It can be seen most clearly in the recent holding of this Court in Capital Duplicators Pty Ltd v Australian Capital Territory. [472] The doctrine that s 122 was "disjoined" was there reined in. The territories power had purportedly been used by a territorial legislature to impose a duty of excise. That attempt was held to be forbidden by s 90 of the Constitution despite the amplitude of the territories power in s 122. This was so although s 90 appears in Ch IV, makes no reference to the territories, is expressed in terms which refer to "the Parliament" and "the several States" and is related to the central subject matters of the "federal" arrangements adopted to govern the Commonwealth and the States after the federation. The Court read the Constitution as a unity. Doing so, it found that s 122 was subject to s 90. The same approach should be taken to the principal problem presented by this case.

[769]

Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 85. 2. Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193 at 202 referring to Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 276, 284-285. 3. Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371-372; Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193 at 202. 4. Lane, Some Principles and Sources of Australian Constitutional Law, (1964) at 240. 5. See Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 184-185. 6. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 145. 7. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 144. 8. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 153-154. 9. Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160 quoting Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371-372. 10. cf Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 179-181, 219-220. 11. Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371. 12. Attorney General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 593-594. 13. Teori Tau [1969] HCA 62; (1969) 119 CLR 564 at 570. 14. In relation to s 116 of the Constitution see Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 143 per Dixon CJ; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 250-251 per Kitto J; Gibbs, "Section 116 of the Constitution and the Territories of the Commonwealth", (1946) 20 Australian Law Journal 375; Cumbrae-Stewart "Section 116 of the Constitution ", (1947) 20 Australian Law Journal 207; Pannam, "Section 116 and the Federal Territories", (1961) 35 Australian Law Journal 209. 15. Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 84-85 per Dixon J. 16. Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 84; Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 141. 17. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 145. 18. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 971; cf R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629 at 638; Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564 at 570-571; Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; 177 CLR 248 at 271-272. 19. Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 154. 20. Especially in relation to the application of Ch III of the Constitution to the territories. 21. Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 per Brennan, Deane, Toohey and Gaudron JJ; Mason CJ, Dawson and McHugh JJ dissenting.

At a glance

Court

Decision date

Before

Source

Judgment (794 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (179)