5 Notwithstanding the provisions of any law of the State, an Authority may -
(a) exercise or perform the powers or functions that it or he is empowered to exercise or perform under the Commonwealth Act; and
(b) act in any office or capacity in accordance with the provisions of an arrangement in force under section 4,
in addition to carrying out its or his duties under the laws of the State."
The Validity of the Commonwealth Act
25 The Appellant contends that the Commonwealth Places Act is invalid because it delegates the exclusive power to legislate to the State. This argument was rejected by the South Australian Court of Criminal Appeal in R v Holmes (1988) 93 FLR 405. Ainslie-Wallace DCJ applied that decision. An argument to like effect had been rejected by a majority of the Supreme Court of the United States in United States v Sharpnack 355 US 286 (1958).
26 The basic principle against delegation is well established (see Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 154-8). As Scalia J said in Mistretta v United States 488 US 361 (1989):
"Strictly speaking, there is no acceptable delegation of legislative power. As John Locke put it almost 300 years ago '[t]he power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws , and not to make legislators , the legislative can have no power to transfer their authority of making laws, and place it in other hands.' J. Locke, Second Treatise of Government 87 (R. Cox ed. 1982) (emphasis added). Or as we have less epigrammatically said: 'That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.' Field v. Clark, [148 US 649 (1892)], at 692." (at 419-420)
27 In this Court, as in the District Court, the Appellant submitted that Holmes should not be followed and relied on the reasoning of the dissentients in Sharpnack (Douglas J and Black J). This Court should follow the decision of a Court of Criminal Appeal in another State when dealing with a Commonwealth law, unless satisfied that the reasoning is plainly wrong. (Australian Securities Commission v Marlborough Gold Mines Ltd (1992-1993) 177 CLR 485 at 492.) Far from being so satisfied, I agree with the reasoning in Holmes. Indeed, as pointed out in Holmes, the legislative solution to the lacuna had been suggested in general terms by three of their Honours in Worthing v Rowell (see supra at 103 per Barwick CJ; at 120 per Menzies J and at 132 per Windeyer J).
28 The Commonwealth Places Act does not "delegate" the Commonwealth's exclusive power to make laws for Commonwealth places. It constitutes an exercise of that power in a particular manner.
29 Indeed the Commonwealth Parliament has made clear the retention by the Commonwealth of its control over the application of State laws by enacting s4(6) which provides:
"The regulations may provide that such of the provisions referred to in subsection (1) of this section as are specified in the regulations do not apply, or shall be deemed not to have applied, by reason of this section or so apply, or shall be deemed to have so applied, with such modifications as are specified in the regulations."
30 In Holmes, King CJ said:
"It is a fundamental principle of constitutional law that Parliament cannot effectively divest itself of its sovereign legislative power, nor assign or transfer or abrogate that power, and in that sense it cannot abdicate its legislative power: Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 157. The Parliament is entitled, however, to use any machinery considered appropriate for carrying out its purposes, Cobb & Co Ltd v Kropp, and 'has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its wisdom it thinks fit, for the peace, order and good government of Australia': Baxter v Ah Way (1909) 8 CLR 626 at 646, per Isaacs J. The machinery chosen by the legislature for present purposes is the application to a Commonwealth place of the body of law existing from time to time in the State in which the place is located. There is no relinquishment or abdication of power. The Parliament may amend or repeal the Act and replace it with a new body of law, at any time. There is no inconsistency with the grant of exclusive legislative power in s 52(i); the Parliament has exercised that exclusive power by providing for the body of law which is to apply . (at 406-407)
31 King CJ concluded:
"I see no reason why the Commonwealth Parliament cannot lawfully exercise its exclusive legislative authority with respect to Commonwealth places by applying to those places State law as it exists from time to time. … [The Commonwealth Places Act] is a valid exercise of the legislative power conferred on the Parliament of the Commonwealth by s 52(i) of the Constitution." (at 409)
32 To similar effect is the reasoning of Bollen J:
"… Parliament … has abdicated nothing. It has exercised its power in a particular way following a suggestion of some justices of the High Court. It has acted itself. … It is a direct exercise of its powers by the Commonwealth and in no sense an abdication at all." (at 412-413)
33 I agree with King CJ and Bollen J. Her Honour was correct to apply this reasoning.
34 The Appellant's contention 4(1) should be rejected, and her Honour's determination 3(i) should be upheld.