The Court answered each of these questions "No".
18 With respect to the first question it was clear that, at the time when the place was a Commonwealth place, the planning scheme neither had, nor could have had, any operation over the relevant land, either because the scheme did not intend to include the land in its operation, or if it had that intention, because it was rendered invalid to that extent. Windeyer J said at 279:
"Whatever view be taken of the scope and effect of s. 52, this much is clear: first, that any law of a State made after the acquisition of a place by the Commonwealth has no force or effect in so far as it is a law with respect to that place: secondly, that a law, whether in general or specific terms, which restricts and controls the use to which a place can be put is a law with respect to that place. Therefore the Planning Scheme Ordinance could not have any lawful operation in respect of any place that had been acquired by the Commonwealth for public purposes before 27th June 1951, and which was at that date still held by the Commonwealth for such purposes."
19 Barwick CJ, McTiernan, Windeyer and Walsh JJ, with Menzies J dissenting, answered the second question "No". In so doing their Honours rejected the proposition that express provisions of the legislative scheme had the consequence of exempting the land from the application of the State Act for so long as the land remained the property of the Commonwealth, and no longer.
20 Section 652 of the Local Government Act 1919 provided:
"652 The provisions of this Act shall be read subject to the provisions of the Commonwealth of Australia Constitution Act ."
21 This was reinforced by the Interpretation Act 1897 which provided:
"14A(1) An Act shall be read and construed as operating to the full extent of, but so as not to exceed, the legislative powers of the State, to the intent that where any provision of the Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of those powers, it shall be a valid provision to the extent to which it is not in excess of those powers, and the remainder of the Act and the application of the provision to other persons, subject-matters or circumstances shall not be affected."
22 In any event, of course, there was the principle of the law of statutory interpretation that statutes should be read down on the basis that a parliament intended to legislate within the scope of its powers. However, neither the application of this principle nor the existence of the express provisions availed the State of New South Wales in the Stocks & Holdings case.
23 At 286-287, when outlining the submissions on behalf of New South Wales, Walsh J said:
"I think it is essential also, that the submissions for the informant should include a submission that nevertheless the enactment did deal with the subject land and did make a law concerning it, namely, a law that if the land should cease at some future time to be owned by the Commonwealth, then the restrictions stated in the Ordinance to be imposed upon the erection of buildings upon, and the use of, land zoned as a 'Special Uses Area', would be applicable to it …
… If the legislation is capable of the construction to which I have just referred, then it may be that it would not operate to burden the performance by the Commonwealth of its constitutional functions. But it would still be in my opinion in conflict with section 52(i), insofar as it operated in the manner for which, as I have said, the informant is in my opinion bound to contend in order to support his argument. I think it would be, to the extent to which upon that construction it would apply to the land, a law 'with respect to' the Commonwealth place, although its operation in relation to that place would not be immediate but would be prospective and would be contingent upon the cessation of Commonwealth ownership."
24 Walsh J referred to s652 of the Local Government Act and s14A of the Interpretation Act in his judgment at 287-288. His Honour found that these provisions were applicable and effective but did not avail the State in that they did not result in the consequence that the State legislation, there under consideration, became applicable upon the transfer of the land by the Commonwealth.
25 His Honour went on to refer to s652 of the Local Government Act and s14A of the Interpretation Act and to the general principle of law that an act will be read down so as not to extend beyond the competence of the legislature.
26 At 288, Walsh J considered that the appropriate approach was to read into any provision, which had the potential to exceed State legislative power, any necessary exception to render it within power:
"I think that, in ascertaining the effect of the provisions, general words should be read and applied in the same way as they would have been read and applied if appropriate qualifications or exceptions had been expressly added to them so as to confine them within the scope of the legislative power. For example, in cl. 4 of the Ordinance the expression "all land" should be read as if places acquired by the Commonwealth for public purposes had been excepted and in cl. 29 a similar exception should be understood. In my opinion the Ordinance may properly be read down to the extent required to avoid any excess of constitutional power. But if it be so read, the result is that the subject land was not within the scheme at all. The provisions of the Ordinance had no application to it."
27 In Stocks & Holdings, a construction within State legislative power could only be achieved by specifically excluding the rifle range which was at that time a Commonwealth place. It would have been insufficient to include an exception for the Commonwealth alone, because this would be within the area of exclusive legislative power in s52(i). His Honour said at 288:
"If the only constitutional impediment had been the principle that the State Parliament cannot lawfully dictate to the Commonwealth what it may do or allow to be done upon its property and cannot impede its performance of its constitutional functions, it may be that it would have been sufficient, in order to keep the provisions of the Ordinance within the power, to import into them the qualifications which would accord with the submissions for the informant. It may have been proper in that event to read these provisions as subject to a proviso that they were to have no operation or effect upon the Commonwealth or upon the use of any land so long as it remained Commonwealth land. But in my opinion if its provisions were understood to be subject to those qualifications, but to no more extensive qualification, the Ordinance would still be a law with respect to the Commonwealth places which at the time of its enactment were within the area to which the Ordinance referred. It is only if the provisions should be understood as having no application at all to lands which had been acquired by the Commonwealth for public purposes and were still held by it, that the Ordinance would avoid the consequences of s52(i). But if so understood, those lands, although marked upon the map, would not be within the scheme. The scheme would not apply to them."
28 His Honour went on to limit his remarks to the legislation there under consideration and concluded at 289:
"I am of opinion that it is not competent for the State Parliament to declare in advance the uses which may be made of the land by any person who may succeed the Commonwealth as owner of it. Such a law would limit the extent and value of the rights which could be enjoyed by a new owner to whom the Commonwealth transfers the land. It might have the effect that the Commonwealth could not dispose of its land, except for use for one particular purpose e.g. as a park. In my opinion, such a law would be in conflict with s52(i)".
29 Barwick CJ at 266 adopted the reasons of Walsh J. His Honour, at 267, also referred to s652 of the Local Government Act and s14A of the Interpretation Act and to the submission that the planning scheme should be construed as if it contained a provision that its terms would not apply as long as the Commonwealth owned the land, but would apply when it transferred the land. His Honour concluded at 267:
"In my opinion there are two answers to the submission. The first is that it would not be, in my opinion, an exercise of construction to import such a provision into the scheme. It would, in my opinion, amount to an attempt to legislate.
But secondly and more importantly such a provision, in my opinion, would itself offend s52(i) for the reasons expressed by my brother Walsh."
30 McTiernan J came to the same conclusion. His Honour implicitly referred to the submission based on s652 and s14A when his Honour concluded at 269, (albeit in the context of answering the first question before the High Court, i.e. whether upon the enactment of the State Act the Ordinance bound the Commonwealth at a time when the Commonwealth was owner):
"Even if the Ordinance were read down so as to avoid any excess of power, the result would be the same, for the scheme on its enactment would have had no application to the land in question."
31 His Honour went on at 269 to answer the second question and said:
"But the Ordinance was not applicable to the land in question before the transfer by virtue of s52(i). In my opinion there was nothing entailed in the change of ownership which would have had the effect of applying the Ordinance to the rifle range."
32 Windeyer J did not expressly refer to s652 and s14A. However, his Honour said at 281-282:
"The Solicitor General for New South Wales argued that the Ordinance should be read as if it provided that it should not affect any Commonwealth land while it was held by the Commonwealth but should take effect in respect of any such land shewn on the scheme map if the Commonwealth should cease to hold it. I do not think that the Ordinance can be read in that way, as prospectively and contingently bringing land not subject to its provisions within them in the future. Such an enactment would I consider be invalid, for the State Parliament has no power to make any law with respect to a place acquired by the Commonwealth for public purposes. A law would not be any the less an infringement of this prohibition because it was not to operate forthwith but only upon the contingency of the Commonwealth in the future abandoning the place … If the Ordinance did not bind the Commonwealth with respect to its use of the subject land, then I do not think that it could be said to bind its successors in title simply because the condition, Commonwealth ownership, which put the place beyond the reach of the Ordinance has come to an end. … If the land that the Commonwealth gave up has been made subject to the scheme, that must be as the result of something occurring after the Commonwealth gave it up effective in law for that purpose"
33 It is instructive to consider the dissenting judgment of Menzies J. His Honour identified at 272 a choice to be made between the "alternatives of invalidity or reading down". His Honour referred to s652 and s14A together with the general common law principle to which I have earlier referred. His Honour concluded at 275:
"Here, it seems to me, that the exclusion of the Commonwealth and of Commonwealth land from the restrictions and prohibitions of the scheme was so obviously necessary for validity that it is proper to conclude that such exclusion was intended, and the mere fact that there are no express words of exclusion, does not warrant the invalidation of the scheme as a whole …
Therefore, as a matter of interpretation, I have come to the conclusion that the prohibitions and limitations of the scheme do not apply to the Commonwealth or to lands at any time answering the description of 'places acquired by the Commonwealth for public purposes'.
When, therefore, the scheme was adopted it did not apply to the Long Bay Rifle Range for two reasons - (1) that the scheme was not intended to control the Commonwealth in the exercise of its constitutional functions and (2) that it was not intended that the scheme should apply to lands of the Commonwealth situated within the County of Cumberland District.
Once the Commonwealth disposed of land comprised in the Long Bay Rifle Range the first reason would no longer afford any ground for denying the application of the scheme for land which the Commonwealth had ceased to use. To the literalist, however, it is more difficult to conclude that land, having been acquired by the Commonwealth for public purposes, ceased to be land within that description once the Commonwealth had disposed of the land and it had been acquired from the Commonwealth by some other person. However, having regard to the purpose of s52 of the Constitution, it seems right to me to construe that section as authorizing Commonwealth legislation with respect to places being the property of the Commonwealth which have been acquired by the Commonwealth for public purposes. Land within the County of Cumberland District, owned by the State of New South Wales and then acquired by the Commonwealth for public purposes, would upon such acquisition, fall within s52 as being a place within the description to be found therein. On the other hand, it would seem to me an unreasonable construction of s52 to deny the application of State laws in respect of places merely because, at an earlier day, they had been acquired by the Commonwealth for public purposes. The word 'acquired' in s52(i) does not, I think, require such an unreasonable consequence and I read the phrase 'acquired by the Commonwealth' as carrying within itself the notion of being the property of the Commonwealth. Once land falls outside that description it is no longer one of the places with respect to which the Commonwealth has power to make laws under s52 and it is a place in respect of which the State Parliament may make laws. Any other conclusion would leave areas of land in which the Commonwealth had ceased to have any particular interest as subject to Commonwealth legislative power to the exclusion of State legislative power even if the land had become the property of the State. A construction of s52 producing such an arbitrary and unreasonable result should be adopted only if the language used compels it. As I have said, s52 is susceptible of a more rational construction."
34 His Honour went on to conclude, with reference to legislation of the very character now under consideration at 277-278:
"… I do not think that s52 would prevent a State from enacting a valid law specifying property, including places acquired by the Commonwealth, but having no operation with respect to such places until they cease to be the property of the Commonwealth. The reason for this is that I think, for reasons already stated, that a Commonwealth law, expressed to operate with respect to a place acquired by the Commonwealth not only while it is the property of the Commonwealth but after it has ceased to be so, would not be a valid law. What the Commonwealth Parliament cannot do, a State Parliament can. Section 52, according to my construction, is an exclusive power to make laws for property so long as it fulfils the description of a place acquired by the Commonwealth but not thereafter. Accordingly, in my opinion, a State law imposing rates or land tax and passed before or during the time a place fell into the description of a place acquired by the Commonwealth, could apply, without further legislation to the place which had ceased to be a place acquired by the Commonwealth."
35 His Honour's powerful dissent cannot be regarded as a statement of the law.
36 In the same way that Commonwealth legislative power over a Commonwealth place commences with acquisition, State legislative power resumes when a place ceases to be a Commonwealth place by reason of a transfer of that property. (See Stocks & Holdings at 267, 284-285, 289. These references are described as "dicta" in the joint judgment in Allders at 675.) However, for the planning scheme in Stocks & Holdings to commence effective operation over the property in question, a fresh enactment of the State legislature was required.
37 The Attorney General claimed, in the context of the third question before the Court, that an Interim Development Order made subsequent to the transfer had this effect. A majority rejected that argument because, pursuant to the provisions of the Local Government Act, the force of the IDO was dependent on the suspension of the pre-existing scheme. As the scheme had no operation over the Commonwealth place, neither the suspension nor the IDO could affect it. (See Barwick CJ at 268, McTiernan J at 270 and Walsh J at 291. Windeyer J who otherwise agreed with the majority came to a different conclusion on this discrete question.)
38 Walsh J, with whom Barwick CJ agreed, concluded at 291:
"In my opinion the subject land was not land to which the scheme applied when it was enacted in 1951. In the period since the land passed from the ownership of the Commonwealth, no legislation has been enacted and no step has been validly taken under legislative authority to apply to the land the provisions of the scheme or any other relevant restrictive provisions."
39 There is a suggestion in one of the majority judgments in Stocks & Holdings that some State laws may spring into operation of their own force upon a place ceasing to be a Commonwealth place. Windeyer J said at 281:
"[T]he present question … is not a question of the application of general laws of a State in places that have ceased to be Commonwealth places. It is whether or not a particular State law, the Ordinance, which had previously no force with respect to the subject land, because that land was by law placed outside its purview, somehow came into force there when the Commonwealth relinquished its ownership."
40 The distinction between a "general" law and a "particular" law is fraught with difficulty. Its pertinence, as a distinction, was rejected in both Worthing and Phillips, albeit not with respect to a case involving a place that has ceased to be a Commonwealth place. I can see no principled basis on which it can be introduced in that category alone.
41 In Worthing, the majority specifically held that the power exclusively reserved to the Commonwealth by s52(i) extends to laws of general application and is not confined to laws which operate on a particular Commonwealth place. (See Barwick CJ at 101-2, Menzies J at 120, Windeyer J at 128 and Walsh J at 138.) This was affirmed in Allders in the joint judgment of McHugh, Gummow and Kirby JJ (with whom Gaudron J agreed) at 668:
"… s52(i) excluded the power of the State Parliament, even by a law of general application, to regulate the conduct of persons engaged in activity in the acquired place."
42 In Stocks & Holdings the application of the State Act was "particular" as the rifle range appeared on the scheme map. Similarly, in Queensland Heritage, Hesketh House was listed in a schedule. However, the reasoning in those cases did not, in my opinion, turn on this element of particularity. The issue is whether the State law is a law "with respect to" a Commonwealth place. The express references in the legislation under consideration in Stocks & Holdings put that beyond argument. However, no such express reference is required to satisfy that test, as shown by Worthing and Phillips.
43 It may appear paradoxical that a provision of a State statute designed for the purpose of ensuring that the statute did not offend the Commonwealth Constitution, was itself a provision that offends the Constitution. However that is the effect of the majority judgments in Stocks & Holdings. The rationale is that a provision in a State statute that has the consequence of applying that statute at the time that the place ceases to be a Commonwealth place impinges on the rights and interests of the Commonwealth so that it can be characterised as a law "with respect to" that place. The result was that the statute could only be upheld on the basis that it did not apply to that place at all and did not spring into life when the legislative power of the State was restored. The legislative power had to be re-exercised afresh after that time.
44 In Allders the High Court considered the application of the Stamps Act 1958 (Victoria) to a transaction between a Commonwealth corporation that owned Tullamarine Airport on behalf of the Commonwealth and a company leasing space within the terminal for a duty-free store.
45 In a joint judgment, with which Gaudron J agreed (at 662), McHugh, Gummow and Kirby JJ said at 676:
A useful test which has been adopted by the Court is to ask whether, if the federal Parliament were to enact a law similar to the impugned State law with respect to the place, such a law would be valid [ Worthing (1970) 123 CLR 89 at 120]. As we have previously noted, most of the questions which have arisen from consideration of s52(i) have concerned not the extent of the power granted to the federal Parliament but the exclusion of the power of State law-making [ Worthing (1970) 123 CLR 89 at 127]. Yet the one is the obverse of the other. If there is federal law-making power it is exclusive with respect to the place. If this test is applied to the present facts, there can be no doubt that federal law could impose a stamp duty on an instrument of lease of land within a place acquired by the Commonwealth for public purposes. A moment's reflection will therefore show why the principle that stamp duty is a tax on instruments cannot forcelose the constitutional characterisation required by a provision such as s52(i)."
46 The test of whether the Commonwealth Parliament could pass a law was referred to in Worthing at 103 per Barwick CJ, 119-120 per Menzies J and 139-141 per Walsh J and in Phillips at 129-130 per Gibbs J. See also Bevelon Investments Pty Ltd v City of Melbourne (1976) 135 CLR 530 at 545-546 and Allders at 638, 640 per Brennan CJ and at 670 per McHugh, Gummow and Kirby JJ.
47 As Menzies J put it in Worthing at 119-120:
"s52 … is a grant of legislative power for the Commonwealth, and the limits of that grant measure the denial of power to the Parliaments of the State."
48 The Queensland Heritage Council case concerned the application of the Queensland Heritage Act 1992 to a property purchased by the Catholic Church from Australian and Overseas Telecommunications Corporation (AOTC). The AOTC was incorporated by a Commonwealth Act but was to all other intents and purposes a private corporation. The land had been owned by the Commonwealth for many years before it was vested in the AOTC in February 1992.
49 The Church sought to demolish the property (Hesketh House), in order to enhance a church building on adjacent land. The issue was whether the provisions of the Heritage Act prohibiting demolition of such buildings without consent of the Queensland Heritage Council applied to the property which had been acquired by the Church.
50 The history of application of laws to the property was that from 1945 or thereabouts until the property was passed to the AOTC, the Commonwealth had exclusive legislative power with respect to it. From 1970 onwards, the Commonwealth Places (Application of Laws) Act 1970 (Cth) had applied the laws of the State of Queensland to the property. As a result, the Heritage Act 1990 (Qld) had applied to the property, which was listed in the schedule to that Act as a heritage property.
51 The AOTC Act 1991 (Cth), pursuant to which the AOTC was created, also provided for the application of State and Territory laws to places occupied by the AOTC. Section 33 of that Act, however, provided a specific exception in relation to State laws governing, inter alia, building standards, the approval of construction of buildings, and the alteration or demolition of buildings, structures or facilities.
52 Macpherson JA, with whom De Jersey CJ and Williams J agreed in this respect, discussed at par [28] the status of the property prior to the 1991 Act. His Honour referred to the effect of Stocks & Holdings that the Commonwealth held exclusive legislative power with respect to Hesketh House from the period of Commonwealth acquisition, and that State laws could not have had any valid operation with respect to the property. His Honour referred to the Commonwealth Places (Application of Laws) Act 1970 (Cth) which had given effect to the Heritage Building Protection Act 1990 (Qld), with respect to Hesketh House, when the Queensland Parliament could not validly have legislated with respect to the property. At that stage the Heritage Act therefore applied, but only by force of the Commonwealth legislation.
53 When Hesketh House was transferred to the AOTC, the Commonwealth application of the Heritage Act ceased. As the Heritage Act 1996 could not have applied to Hesketh House from its enactment, neither could it be revived upon Hesketh House returning to State legislative power. The Queensland Heritage Act 1992 which came into effect after transfer to the AOTC but before transfer from the AOTC to the Church, was found not to apply as a matter of construction. The Act operated on the basis that an owner was given an opportunity to make submissions about whether its property should be listed for protection.
54 These authorities indicate that s52 of the Constitution is not concerned with State legislation. It is concerned with State legislative power. The Commonwealth has an "exclusive power" in the relevant respects. Section 52 does not deprive a State Act of effect. It deprives a State Act of validity because there was no power to enact it.
55 In Phillips the dissentients sought to distinguish between "legislative power" per se and "the operation and effect of laws made under legislative power". (See at 123 and 125 per Walsh J and at 131-133 per Gibbs J.) However that distinction did not prevail. (See also Allders at 639-640 per Brennan CJ.)
56 As Latham CJ said in South Australia v The Commonwealth (1942) 65 CLR 373 at 408:
"A pretended law made in excess of power is not and never has been a law at all."