R v Toohey; Ex parte Northern Land Council - [1981] HCA 74 - HCA 1979 case summary — Zoe

CTHHCA

R v Toohey; Ex parte Northern Land Council

[1981] HCA 74

High Court of Australia|1979-12-20|Before: Wilson JJ, Toohey J

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Source facts

Court

High Court of Australia

Decision date

1979-12-20

Before

Wilson JJ, Toohey J

Source

Original judgment source is linked above.

Judgment (364 paragraphs)

[1]

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin and Wilson JJ. R v Toohey; Ex parte Northern Land Council

[2]

ORDER Order that a writ of mandamus issue to the Honourable Mr. Justice Toohey as Aboriginal Land Commissioner directing him to proceed to deal in accordance with law with the application made by the prosecutor under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth and known as the Kenbi Land Claim. Order that the Attorney-General for the Northern Territory pay to the prosecutor its costs of this application.

[3]

This is an application for a writ of certiorari to quash a decision made on 20 December 1979 by Toohey J., sitting as an Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 Cth as amended ("the Land Rights Act") to hear a matter known as the Kenbi Land Claim, and for a writ of mandamus directing Toohey J. to exercise his jurisdiction under the Land Rights Act and hear the claim. An application for prohibition was also made, but not strongly pressed. Kenbi is the Aboriginal name for the Cox Peninsula in the Northern Territory. An application was, on 20 March 1979, made to the Commissioner by the prosecutor, the Northern Land Council, on behalf of Aboriginals claiming to have a traditional land claim to a substantial area of the Cox Peninsula and to islands and reefs lying off the coast of the peninsula. The application was made under s. 50(1)(a) of the Land Rights Act which provides as follows:

[12]

For the purpose of the first submission made on behalf of the prosecutor counsel accepted that the land has become a town within the meaning of the Land Rights Act, and is therefore no longer unalienated Crown land. The submission was that the Commissioner may and should exercise the function conferred on him by s. 50(1)(a) if the land in question is unalienated Crown land at the time when a claim to it is made, and that the fact that the land has subsequently ceased to be unalienated Crown land is irrelevant to the question whether the Commissioner should proceed to discharge his function. This submission faces the initial difficulty that the Town Planning Regulations, made on 22 December 1978, i.e., before the application was made to the Commissioner of 20 March 1979, had prescribed that an area which includes most of the land in question should be subject to the provisions of the Town Planning Act as if it were part of a town. The prosecutor sought to meet this difficulty in two ways. First, it was said that the land had been claimed by the letter written to the Interim Aboriginal Land Commissioner on 23 September 1976, or perhaps even earlier, or alternatively by the letters written to the Lands Branch of the Department of the Northern Territory on 26 September 1977 and 14 March 1978. However, it is clear that an application to which s. 50(1)(a) refers is an application made to the Commissioner under the Land Rights Act, and that a claim to the land made before that Act was passed, or made to some authority other than the Commissioner, does not answer that description. It cannot possibly be relevant that the land was unalienated Crown land at an earlier date; if it is not unalienated Crown land, or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals, at the time the application is made the Commissioner has no function to exercise. Secondly, it was said on behalf of the prosecutor that even if the land had become a town by virtue of the provisions of the Town Planning Act and the Town Planning Regulations, that Act and those regulations were repealed on 3 August 1979 - after the application had been made to the Commissioner - and the fact that the land thereupon became a town as a result of the enactment of the Planning Act 1979 and the making of the Planning Regulations only means that the land underwent a subsequent change of status, and that should be disregarded. However, that Planning Act and the Planning Regulations came into force at the very instant that the Town Planning Act and the Town Planning Regulations ceased to operate, so that, assuming the validity and applicability of both sets of regulations to the land in question, there was never any moment after 29 December 1978 at which that land was not a town. It follows that even if the major premise in the prosecutor's argument is correct, the submission that the land was unalienated Crown land at the date when the application was made to the Commissioner cannot succeed if the regulations are valid.

[20]

Then it was submitted on behalf of the prosecutor that the Planning Act is not "the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns" within the meaning of those words in the definition of "town" in the Land Rights Act. The Planning Act set up a Northern Territory Planning Authority with power, inter alia, after following a prescribed procedure, to submit to the Minister a draft planning instrument permitting or controlling the use of land and the carrying out of any development on or in relation to land (ss. 34 to 59). If the Minister accepts the draft, the Administrator may make a planning instrument in relation to the land (s. 61). It is an offence to use or develop land otherwise than in accordance with any planning instrument (s. 63). The Act contains other provisions relating to approval of subdivisions and development control. The provisions of the Act are not restricted to towns, and the Act makes no special provision in relation to the planning or development of towns, or to the use of land in or near towns. It relates to the planning and developing of all land, and the use of all land, and this obviously includes land in towns. It seems to me therefore that the Planning Act does relate to the planning and developing of towns and the use of land in or near towns although it relates to the use of other land as well. No other law in the Northern Territory now in force that relates to the planning and developing of towns and the use of land in or near towns was brought to our attention. It follows that the Planning Act is "the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns" within the meaning of those words in the definition of "town", and that if reg. 5 of the Planning Regulations is valid the area of land specified in Sch. 3 to the regulations is an area that by virtue of those regulations is to be treated as a town. In other words, if reg. 5 is valid, the land in question is land in a town within the meaning of the Land Rights Act.

[22]

The submission that the regulation is invalid was put in two ways. It was first said that reg. 5 was purposeless - that to specify that an area should be treated as a town entailed no consequence under the Planning Act. At the time when the regulations were made, the only reference to "town" in that Act was to be found in the definitions in s. 4(1) and in the transitional provisions in Pt IX where the word appears in the expressions "town planning scheme" and "town plan", which refer to town planning schemes and town plans under the repealed Act. Paragraph (c) of the definition of "town", which I have already set out, shows that the Act contemplated that the regulations might specify an area to be treated as a town. By s. 165(1) of the Planning Act, the Administrator is given power to make regulations, not inconsistent with the Act, "prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act"; then follows a reference to some particular matters which have no bearing on the present case. Regulation 5 plainly enough prescribes a matter permitted by the Act to be prescribed, but it was submitted that the words "for carrying out or giving effect to this Act" govern the words "required or permitted by this Act to be prescribed" as well as the words "or necessary or convenient to be prescribed", and that reg. 5 does not prescribe any matter which is permitted to be prescribed for carrying out or giving effect to the Act. The words from s. 165(1) which are quoted above appear in the same or in a similar form in many statutes. Sometimes they appear with a comma after "prescribed" where it appears for the second time, and that makes the construction of the provision a little more difficult. Where, as here, no comma appears in that position, there is no reason for regarding the phrase "for carrying out or giving effect to this Act" as qualifying "required or permitted by this Act to be prescribed". If the Act requires or permits a matter to be prescribed, it would seem superfluous to consider whether that matter is prescribed for carrying out or giving effect to the Act. But, assuming that the prosecutor's argument as to the construction of s. 165(1) is correct, it does not follow that reg. 5 does not prescribe any matter permitted to be prescribed for carrying out or giving effect to the Act. By the regulation, par. (c) of the definition of "town" is made actually, rather than potentially, effective to include particular land within the definition. In s. 4(1) of the Planning Act, "planning instrument" is defined to mean a regional plan or a town plan made under s. 61, and "town plan" means "a planning instrument that applies, either wholly or substantially, to land which is in a municipality or a town". Although neither s. 61, nor any of the other sections that deal with the making of a planning instrument, draws any distinction between a regional plan or a town plan, it is obvious enough that there may be very significant differences between planning instruments in respect of a region and those in respect of a town. It may have been regarded by the legislature as convenient for administrative purposes to know whether a regional plan or a town plan was in contemplation when a draft planning instrument was produced, and for this reason to know what was a town, even though the Act did not expressly state the consequence of declaring that an area should be treated as a town. By an amendment made to the Act which took effect on 14 March 1980, there was inserted a section which does use the word "town", and which attaches consequences to the fact that land is "within a town" - s. 60A, which deals with plans for small towns. If the regulation had been made after that date its validity on this ground could not have been questioned. However, even before that amendment was made reg. 5 was in my opinion within the powers conferred on the Administrator by s. 165(1), being a regulation which prescribed a matter permitted to be prescribed and (if it matters) prescribed for giving effect to par. (c) of the definition of "town".

[28]

The terms of the Commission in fact issued to Mr. England are unenlightening. The Commission is signed and sealed by the Governor-General, who states that "I hereby appoint John Armstrong England to be the Administrator of the Northern Territory of Australia on and from 1 June 1976." Section 31 of the Self-Government Act provides as follows: The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under this Part extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities. Section 35 of the Act provides that the regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority, and regulations have in fact specified a large number of matters in respect of which the Ministers of the Territory have executive authority. The number and designation of ministerial offices is determined by the Administrator (s. 34) and the Administrator may appoint a member of the Legislative Assembly to a Ministerial office and may at any time terminate the appointment (s. 36). No doubt in exercising these powers the Administrator must act in accordance with the principles of responsible government. By s. 6 it is provided as follows: Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory. If a proposed law is presented to the Administrator for assent he may assent to it, withhold assent, or reserve it for the Governor-General's pleasure (s. 7). The Governor-General has power to disallow laws to which the Administrator has assented (s. 9). Section 51(1) provides as follows: Where an Act (whether or not by express provision) binds each of the States or the Crown in right of each of the States, that Act, by force of this sub-section, binds the Territory or the Crown in right of the Territory, unless that Act specifically provides otherwise. The reference to "the Crown in right of the territory" in this section does not indicate who is the representative of the Crown in the Territory.

[29]

The Northern Territory, although granted self-government, remains a Territory of the Commonwealth. The Governor-General is the Queen's representative within the Commonwealth: see ss. 2, 61 of the Constitution. By the constitutions of the States, which are continued by s. 106 of the Constitution, the Governor is the Queen's representative within the State, and the office of Governor of a State is recognized by a number of sections of the Constitution: see ss. 7, 12, 15, 21, 84 and 110. The Constitution does not recognize that any person other than the Governor-General is the Queen's representative within a Territory which has not yet become a State. I need not consider whether the power conferred by s. 122 would enable the Parliament to provide by legislation for the appointment of an officer who would be the Queen's representative in a Territory. If the Parliament has that power, one would expect that an intention to exercise it would be expressed in clear words. The Self-Government Act nowhere declares the Administrator to be the Queen's representative. The absence of any Letters Patent, Instructions under the Sign Manual or Commission from Her Majesty marks a departure from the manner in which other representatives of the Queen have been appointed in Australia. The decision of the Judicial Committee in Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1] suggests that the absence of the usual instruments of appointment is not necessarily conclusive. Lord Watson, who delivered the judgment of the Board, considered the position of the Lieutenant-Governor of a province of Canada who was not appointed by the Queen but by the Governor-General under the authority of s. 58 of the British North America Act 1867, and said [2] that "a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for all purposes of Dominion government." The case is however distinguishable, because it concerned the position of one of the provinces which were united into the Dominion of Canada, and the power under which the Lieutenant-Governor was appointed was contained in the Imperial Statute that formed the Constitution under which the provinces were united. It does not follow from that decision that the absence of any appointment by the Queen, and of any express statement that the Administrator is to be the Queen's representative, is lacking in significance in the present case. It is clear that the Administrator cannot be the Queen's representative for all the purposes of the government of the Territory, because his functions are limited by ss. 34 to 36 of the Self-Government Act. Moreover, in exercising powers and functions outside those limits he must act in accordance with such instructions as are given to him by the Minister. It may be that the matters in respect of which he is bound to act on ministerial instructions are comparatively few, but it does not seem consistent with the position of a representative of the Queen that he should be liable to receive instructions of that kind at all. The provisions regarding the reservation of proposed laws for the Governor-General's pleasure and the power of the Governor-General to disallow enactments do not assist in the determination of the present question; they are neutral. However, having regard to the matters to which I have referred, I consider that the fact that the Administrator is charged with the duty of administering the government of the Territory and that his duties, powers, functions and authorities extend to the exercise of the prerogatives of the Crown so far as they relate to those powers, functions and authorities, does not mean that the Administrator is the representative of the Crown. His office is an important one, but in my opinion he does not represent the Crown within the Northern Territory, although, when exercising the prerogatives of the Crown, he is no doubt entitled to such privileges and immunities as those prerogatives attract.

[39]

In the next case, Arthur Yates & Co. Pty Ltd v Vegetable Seeds Committee [25] , it was held that orders made by a subordinate authority (not by the Crown) were open to attack on the ground that they were made for a purpose other than that conferred by the statute under which they purported to be made. In the course of the valuable discussion in which the members of the Court engaged somewhat divergent opinions were expressed on the present question. Latham C.J. [26] referred to the fact that there is authority that the bona fides of the Crown cannot be impugned, but suggested, without finally deciding, that evidence of dishonesty might be proved in the case of an individual Minister for the purpose even of invalidating a legislative act which he is authorized to perform. However, he said that the rule against inquiry into motives applied only to laws (including "some" regulations) and not to orders and directions given under statutory powers [27] . Rich J. said [28] that the bona fides of delegated legislation made by the Crown's representative will not be examined, but thought that a court might examine the bona fides of a purported exercise of power by an individual Minister even if the power was of a legislative character. Starke J. said [29] that the motives, reasons and bona fides of a sovereign legislative body cannot be examined in a court of law, and that "it may be that orders in council made pursuant to statutory authority fall within this category". Dixon J. [30] held that the question whether the purpose of orders renders them invalid does not depend on whether the orders are of a legislative character. He said [31] , that the acts of a sovereign legislature could not be challenged on this ground and added, "Then, too, legislative and executive acts formally done in the name of the Crown stand in a special position: see Duncan v Theodore [32] ." He appears to have drawn a distinction between statutes and acts formally done in the name of the Crown, on the one hand, and the acts or determinations of subordinate authorities on the other. However, in the course of discussion of the principle that a power to make by-laws ought not to be used for a collateral purpose, he cited [33] Bailey v Conole [34] without any adverse comment. That was a case in which a regulation made by the Governor in Council, and "in form within the letter of the statute" [35] was held invalid because it was made for an object foreign to the scope of the Act.

[46]

In this state of the authorities it appears to me that this Court is free to decide for itself the question that now arises. As I have shown, if the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorized by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to have been made for an unauthorized purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail. As Mr. Hogg points out in an article "Judicial Review of Action by the Crown Representative", Australian Law Journal, vol. 43 (1969), p. 215, three reasons appear to have been suggested for giving an immunity from review to acts of the Crown. The first is that the Ministers on whose advice the representative of the Crown relies are responsible to Parliament, whose scrutiny is available to check excesses of power. If that reason were valid it ought logically to follow that the act of an individual Minister also could not be invalidated even if it were shown that he had acted for an extraneous purpose. Not all of the members of this Court who have upheld the immunity of the Crown have gone so far as to extend it to the acts of individual Ministers. To do so would be contrary to the approach taken in such cases as Secretary of State for Education and Science v Tameside Metropolitan Borough Council [47] . Moreover, under modern conditions of responsible government parliament could not always be relied on to check excesses of power by the Crown or its Ministers. The second reason suggested is that the courts should not substitute their views for those of the executive on matters of policy. That is of course true, but it does not mean that the courts cannot ensure that a statutory power is exercised only for the purpose for which it is granted. A third reason suggested is that the counsels of the Crown are secret. However the secrecy of the counsels of the Crown is by no means complete (see Sankey v Whitlam [48] ) and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to see why it should not be acted upon. In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize. The onus of proving that the Crown did act for an unauthorized purpose lies on those who make that assertion: see Ningkan v Government of Malaysia [49] , and McEldowney v Forde [50] .

[67]

A later letter, dated 14 March 1978, from the Council to the Lands Branch, is also relied upon. It refers to the Council's understanding that all vacant Crown land on Cox Peninsula had earlier been claimed before "the interim Land Commissioner". It speaks of the "considerable confusion" which had earlier existed concerning appropriate procedures and of advice received by the Council from the Minister for Aboriginal Affairs that his Department had been notified by the interim Land Commissioner of a claim to all vacant Crown land on Cox Peninsula. It concludes by referring to "the general uncertainty that still prevails" regarding land claims and asks that Cox Peninsula be afforded the status of being under claim and therefore not subject to further alienation until determined upon by the Lands Commissioner. The reply, dated 11 April 1978, from the Lands Branch states that the Lands Commissioner is unaware of any land claim to the Cox Peninsula and that "it is not possible to extend any previous undertakings to the administration and alienation of land on Cox Peninsula, not contained within" an area marked on the enclosed plan. For reasons which remain unexplained the area so marked in fact comprises by far the greater part of Cox Peninsula. Material in evidence suggests that much confusion must then have surrounded the making of land rights claims; there must also have been much other correspondence relating to claims to Cox Peninsula which is not before the Court. In the result much remains unexplained: the status of the interim Land Commissioner, who receives no statutory recognition in the Aboriginal Land Rights (Northern Territory) Act 1976, is unclear; there must have been land claims of some sort to some parts of Cox Peninsula made well before March 1978 and made to what were then thought to be the appropriate authorities. Perhaps all that emerges at all clearly is that even when the Land Branch's letter of 11 April 1978 was written the Commissioner was still not in receipt of any application made under s. 50(1)(a) in respect of Cox Peninsula. This is confirmed by what happened at the hearing of another application under s. 50(1)(a), confined to one of the off-shore islands of Cox Peninsula. In January 1979 an adjournment was sought by the Council so that, in the words of the Commissioner in his reasons for judgment delivered on 14 February 1979, it could be consolidated "with a broader claim foreshadowed in respect of the Cox Peninsula". His Honour added that "that broader claim had not then been lodged nor has it been since".

[91]

There remains for consideration the plaintiffs' argument based on the scope and purpose of the Customs Act and the Customs (Prohibited Export) Regulations. It was said, correctly, that the subject matter and the scope and purpose of a statutory enactment may enable a court to pronounce the reasons given for the exercise of a statutory discretion to be extraneous to any objects the legislature had in mind. In that case I said of the Minister's statutory powers [16] : So much for the constitutionality of a decision whether or not to relax a prohibition upon export. A quite distinct question also arises: has the maker of the decision duly exercised his decision-making power or, on the contrary, is his decision vitiated by the nature of the considerations, extraneous to the power conferred, to which he has had regard in arriving at that decision? This question must depend for its answer primarily upon the legislation which confers the power. Where the extent of the power is delineated, perhaps by specific enumeration of matters to be considered, perhaps as a result of implications which may be drawn from the subject matter dealt with, the courts will relieve against excesses of power affecting the rights of a subject. It will be seldom, if ever, that the extent of the power cannot be seen to exclude from consideration by a decision-maker all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration; his decision will not be a bona fide one since these considerations will, on their face, not be such as the legislation permits him to have regard to. In other instances the task for the court will be to discern what restraints, if any, the legislation places upon considerations to which he may have had regard. 1. (1963) 109 C.L.R. 59. 2. (1976) 136 C.L.R. 1. 3. (1976) 136 C.L.R., at p. 6. 4. (1976) 136 C.L.R., at p. 8. 5. (1976) 136 C.L.R., at p. 9. 6. (1976) 136 C.L.R., at p. 26. 7. (1976) 136 C.L.R., at p. 23. 8. (1976) 136 C.L.R., at p. 12.

[103]

In Victorian Stevedoring and General Contracting Co. Pty Ltd v Dignan [30] , regulations made by the Governor-General on the advice of the Federal Executive Council were attacked as an abuse of power and hence ultra vires. In rejecting this argument Gavan Duffy C.J. and Starke J. concluded that the only remedy for such abuse was by political action [31] : not, however, because of any particular immunity of the representative of the Crown: it was of "the Executive" and "the Executive Government" that they spoke as being amenable only through political action. For Rich J. [32] it was the legislative character of the grant of power which prevented "the reasons and motives of the donee" of the power from affecting validity. His Honour eschewed what would have provided a short and conclusive answer to the plaintiff's attack based upon the Governor-General's reasons for making the regulations, his immunity as Crown representative. Dixon J. [33] seems to have regarded the ample terms of the grant of power as the cause of unexaminability of "the ends to be achieved and the policy to be pursued as well as the means to be adopted". He emphasized "the legislative character of the function entrusted to the Governor-General-in-Council" saying that "His discretionary power over the subject is as unqualified as that of a legislature, and the actual grounds upon which it is exercised are, therefore, immaterial." [34] For Evatt J. it was an open question whether the exercise of power could be reviewed by the courts for want of good faith. He said that had actual bad faith been alleged it "would give rise to a very grave constitutional question as to whether it is possible to impute want of good faith to the King's representative or the King's advisers, for the purpose of nullifying executive acts performed in the name of the King or his representative" [35] . His Honour seems to have regarded the advisers of the Crown as in no different position from the Crown's representative; it was the executive acts which each performed which for him formed the true subject-matter of the constitutional question.

[110]

In the case of the Governor-General in Council it is not possible to go behind such an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v Theodore [11] ). An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. However, the views of other members of the Court were by no means consistent with those of Dixon J. Latham C.J. in his dissenting judgment appears to accept that the Governor-General's opinion is not per se immune from examination [12] . That this view was not confined to that dissenting judgment seems to follow from the reasoning adopted in a number of the other judgments. While they concluded that in the instant case such examination was excluded they, unlike Dixon J., based that conclusion exclusively upon the particular terms of the legislation, which they regarded as conferring an absolute discretion upon the Governor-General. Their failure to attribute unexaminability to the special status of the Governor-General is in high contrast to the approach of Dixon J.; it gains added significance from the fact that were such status enough to bar judicial examination it would have provided a succinct and conclusive basis for the conclusion to which in that case each of them came: I refer to the judgments of McTiernan J. [13] , of Williams J. [14] and of Kitto J. [15] . Only Fullagar J. [16] appears to share the view of Dixon J. and only he joins in relying upon Duncan v Theodore for the proposition as to unexaminability. 1. (1951) 83 C.L.R., at pp. 178-179. 2. (1917) 23 C.L.R., at p. 544. 3. (1951) 83 C.L.R., at p. 158. 4. (1951) 83 C.L.R., at pp. 210-211. 5. (1951) 83 C.L.R., at pp. 221-222. 6. (1951) 83 C.L.R., at pp. 279-280. 7. (1951) 83 C.L.R., at pp. 257-258.

[192]

Judicial review of delegated legislation which focuses on whether there is power to make the delegated legislation is consistent with the separation of powers; this is enforcing the limits established by Parliament. If the delegate has power to make the regulation, then it is not open to the judicial branch, except with Parliamentary authority, to entertain a challenge to the validity of the regulation on the ground that the legislative power was misused (for example, because of bad faith or ulterior purpose or insufficient regard for those affected). Good faith (or proper purpose or due regard for those affected) is irrelevant to the validity of the regulation. This is true of all exercises of legslative power by delegation, unless the legislature makes good faith (or propriety of purpose or due regard for those affected) a condition of validity. The statement that "powers must be exercised bona fide, and having regard to the purposes for which they were created, and to the rights of persons affected by them" (see Isles v Daily Mail Newspaper Ltd [5] per Isaacs J.) does not apply so as to enable the judicature to inquire into or invalidate the exercise of the legislative power of the Commonwealth. If delegated legislative power could be subjected to this gauntlet race, not only would legislation by delegation be impracticable, but the judicial power could be invoked, and no doubt would be invoked, to question a multitude of laws so as to extend greatly the possibilities of conflict between the judicial and legislative branches. Laws would be subject to invalidation on proof (or perhaps confession) of what would usually not be in the public arena. The relative certainty about the validity of delegated laws would be replaced by uncertainty. A question mark would be put against every regulation and other delegated legislation. Under the separation of powers the judicial branch may inquire into and determine whether a challenged law is within the scope of the legislative or delegated legislative power, but not whether the power has been misused.

[219]

The attack upon the Regulations - the subject of the second and third grounds of the orders nisi to review - was decided in principle against the appellants in the Huddart Parker Case [31] and Dignan's Case [32] . All that is new in these grounds is the suggestion that the Regulations were an abuse of power, and so ultra vires. If Parliament, however, placed in the hands of the Executive the power of making the Regulations the subject of attack in these proceedings, and that power has been abused or misused, the only remedy is by political action, and not by appeal to the Courts of law (seeAttorney-General for Dominion of Canada v Attorneys-General for the Provinces of Ontario, Quebec and Nova Scotia [33] ). The only question for the Courts of law in these circumstances is whether the Regulations are within the power conferred upon the Executive Government by the Transport Workers Act 1928-1929. And the Huddart Parker Case and Dignan's Case have resolved this question in favour of the Regulations. This disposes of the second and third grounds of the orders nisi. Rich J. said [34] : I have read the judgment of my brother Dixon, and agree with the view of that authority [i.e. Roche v Kronheimer [35] ] which he has expressed. It follows in my opinion not only that the delegation of power is open to no objection, but the power given by the delegation is so akin to that of legislation that the reasons and motives of the donee, whether appearing ex facie the Regulations or aliunde, cannot affect their validity. Dixon J. said [36] : The fact that the Executive has made another similar regulation as often as the Senate has disallowed that which preceded it, was relied upon as confirming the inference that it was not the regulation of trade and commerce but of industrial relations that was aimed at. No confirmation of the motives animating the makers of the regulation was or is necessary. The only question was whether, notwithstanding the nature of these motives, the regulation did operate upon a matter forming an actual part of inter-State and overseas commerce. I think an enactment which does operate directly upon an activity or transaction forming a part of such commerce does not cease to be a law in respect to trade and commerce with other countries and among the States because it may equally be referred to some other legislative category. The diffculty must always be great in deciding whether such an enactment is a law with respect to such commerce when it appears from its very terms that the motives which guided the lawgivers were connected with matters belonging to the other category. But I do not think the words "with respect to" in sec. 51 are directed so much to the purpose of the law as to its relevance and operation. Perhaps in this case the real question turns upon the application of the criterion they describe. I remain of the opinion that the regulation "directly controls the selection of agents for the doing of work forming part of such commerce", and that, for this reason, it is a law with respect to such commerce [37] . But it is now suggested that in fact the actual exercise of the discretion by the Executive was clearly not directed to the subject of trade and commerce. This contention too is answered, I think, by the legislative character of the function entrusted to the Governor-General in Council. His discretionary power over the subject is as unqualified as that of a legislature, and the actual grounds upon which it is exercised are, therefore, immaterial. Evatt J. expressed similar views [38] . 1. (1931) 46 C.L.R. 73. 2. (1931) 46 C.L.R., at pp. 84-85. 3. (1931) 44 C.L.R. 492. 4. (1931) 45 C.L.R. 188. 5. [1898] A.C. 700, at p. 713. 6. (1931) 46 C.L.R., at pp. 86-87. 7. (1921) 29 C.L.R. 329. 8. (1931) 46 C.L.R., at pp. 103-104. 9. (1931) 44 C.L.R., at p. 516. 10. (1931) 46 C.L.R., at pp. 125-126, 128-129.

[222]

Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases "security and defence of the Commonwealth", "execution of the Constitution", "maintenance of the Constitution", "execution of the laws of the Commonwealth", "maintenance of the laws of the Commonwealth" and "prejudicial to". In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v Theodore [40] ). An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council. It matters not whether the attempt to invalidate an order, proclamation or other executive act is made collaterally or directly. One purpose of vesting the discretionary power in the Governor-General is to ensure that its exercise is not open to attack on such grounds and the inference that such a purpose animates sub-s. (2) is confirmed by sub-ss. (4), (5) and (6) giving as they do a special and guarded means of obtaining relief from the conclusion of the Governor-General in Council that the communistic connections of the body would bring it within the application of s. 5 and from that conclusion only. His Honour then went on to deal with an argument that on its proper construction the sub-section referred to was not intended to make the opinion of the executive decisive and that certain of the facts referred to must be shown to exist independently of the opinion formed by the executive. That argument was advanced in aid of the validity of the section in question. His Honour then said [41] : The second argument was that, although no prerogative writ could go to the Governor-General in Council, yet in a suit for an injunction or in collateral proceedings the validity of a declaration under s. 5(2) could be impugned by invoking the same principles as govern discretionary powers confided to subordinate administrative officers or bodies. Those principles have been explained and applied in this Court in a succession of cases beginning perhaps with the judgment of O'Connor J. in Randall v Northcote Corporation [42] , the latest being Water Conservation and Irrigation Commission (N.S.W.) v Browning [43] , except for Avon Downs Pty Ltd v Federal Commissioner of Taxation [44] , where sitting as a primary judge I dealt with the matter.

[228]

Section 5 provides for what is in effect a right of appeal from the Governor-General's satisfaction that the body is one which answers any of the descriptions in s. 5(1), but it does not provide for any form of challenge to his satisfaction as to the prejudicial character of the continued existence of the body. In the absence of any such provision, a declaration of this satisfaction is, in my opinion, immune from challenge or examination in any court upon any ground. It was strongly urged on behalf of the defendants that if it were shown that the Governor-General, upon the materials before him in relation to a body which he declares an unlawful association under the section, could not have the necessary satisfaction without misconceiving the legal significance of the expression "activities prejudicial to the security and defence of the Commonwealth" &c., it would be competent for the Court to hold his declaration to be unauthorized and of no effect. I find it impossible to accede to this argument. The section on its face will bear no other meaning than that the Governor-General is to form an unchallengeable judgment as to whether the continued existence of the body will have the necessary tendency. In sharp contradistinction to the provision for judicial review of his opinion as to whether a body is one to which the section applies, is the very limited provision that the Executive Council shall not advise the Governor-General to make a declaration unless the material upon which the advice is founded has first been considered by a statutory committee. It is not required that the advice tendered to the Governor-General shall be consistent with the opinion formed by the committee. In the face of this contrast, the inference is irresistible that it is left to the Executive Council to give such advice as it thinks proper, being assisted but not controlled by the views of the committee. To hold that nevertheless a court may review the legal conceptions which underlie the advice would be to ignore the plain meaning of the legislation. Moreover, it is in the nature of things practically, if not totally, impossible for a court to know in a given case either what those legal conceptions were or to what facts they were applied; and I find it impossible to attribute to the legislation any other intention than that the Governor-General may exercise his power with complete immunity from judicial interference. Finally, it must be remembered that the satisfaction with which alone the section is concerned is the satisfaction of the Governor-General acting with the advice of the Executive Council. So acting he has not to consider for himself either questions of fact or questions of law, but will be satisfied as he may be advised. 1. (1951) 83 C.L.R., at pp. 279-280.

[232]

The legality of the Crown's action may be tested by reference to power as existing and intended to be exercised, but its honesty cannot be impugned in the King's Courts. Latham C.J. said [59] : The rule against inquiries into motives was applied to regulations made by the Governor-General (on the advice of a Minister) in Victorian Stevedoring and General Contracting Co. Pty Ltd v Dignan [60] . Dixon J. after examining the position in the United States said [61] : But in English law the position is not quite the same. Our distinctions are concerned rather with the status, composition and purposes of the body, with the difference between bad faith and ultra vires objects and with the precise provisions of the legislation under which the power arises and with the grounds for judicial review they afford. Indeed the last matter may be expressed not inappropriately in language used recently in America by Frankfurter J. in relation to a kindred topic: "Whether judicial review is available at all, and, if so, who may invoke it, under what circumstances, in what manner and to what end are questions that depend for their answer upon the particular enactment under which judicial review is claimed," that is, of course, always subject to the constitution. "Apart from the text and texture of a particular law in relation to which judicial review is sought, "judicial review" is a mischievous abstraction. There is no such thing as a common law of judicial review in the federal courts" (Stark v Wickard [62] ). Under our law in the case of a supreme legislature there could, of course, be no question. Even with a private Act of Parliament, the grounds upon which it proceeded were never considered examinable. So a suggestion that the promoters had obtained it by fraud could not be entertained (Stead v Carey [63] ; Waterford, Wexford, Wicklow and Dublin Railway Co. v Logan [64] ). And if a false or erroneous recital is contained in a statute it must be ascribed to misinformation, "forasmuch as the legislature always have [sic] justice and truth before their eyes" (Earl of Leicester v Heydon [1] ). "If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but, so long as it exists as law, the courts are bound to obey it" (Lee v Bude and Torrington Junction Railway Co. [2] , per Willes J.). Then, too, legislative and executive acts formally done in the name of the Crown stand in a special position: see Duncan v Theodore [3] . But with respect to the acts or determinations of subordinate authorities other questions arise. To begin with their powers are limited and the form of the limitation upon a power of subordinate legislation may itself involve purpose. If there is an exercise of such powers for a different purpose, it is outside the Act which confers them (Narma v Bombay Municipal Commissioner [4] ). "There are forms of legislative authority, such as in Clanricarde's Case [5] and in Municipal Council of Sydney v Campbell [6] where a given "purpose" is made an express condition of exercising the power. If that "purpose" is not pursued, the power is not exercisable, and therefore the facts are examinable in order to ascertain what purpose was in view," per Isaacs J. in Jones v Metropolitan Meat Industry Board [7] : Cp. Werribee Council v Kerr [8] (which, however, like Clanricarde's Case and Campbell's Case did not involve a by-law). But where purpose is not made expressly, or by necessary intendment, a condition of the exercise of the power, then it is necessary to consider the composition of the body, and, if it is a deliberative assembly, to distinguish between the motives actuating individual members and the purpose disclosed by the character and operation of the measure in relation to the actual facts and circumstances. In In re the Mayor &c. of the City of Hawthorn; Ex parte Co-operative Brick Co. Ltd [9] , speaking of a by-law of an elective municipal council, Cussen J. said: "So far as the question of bad faith is concerned, if it is meant by this that individual councillors were actuated by improper motives in giving their votes, I find no evidence of the fact, and even if there was, I find great difficulty in seeing how such a contention could be given effect to. Each councillor may be actuated by many reasons, each having some different reasons from the others, and it seems to me almost, if not quite, impossible to penetrate into their minds. It must at least be necessary to show that the improper motive was the sole or dominant one, and that but for it a majority would have voted against adopting the by-law. The ratepayers and councillors honestly voting for the by-law would be placed in a false position if the by-law could, perhaps after a long time, be upset on such a ground. These considerations make one think that the furthest the Court can go is to look at the object and effect of the by-law, to be gathered from its language, and possibly by applying it in a general way to the existing state of legislation, and to the condition of things existing in the locality." On this point the judgments in the Supreme Court were approved in this Court [10] . 1. (1945) 72 C.L.R. 37. 2. (1938) 59 C.L.R. 170, at p. 185. 3. (1933) 49 C.L.R. 220, at p. 240. 4. (1944) 69 C.L.R. 457, at p. 471. 5. (1918) 25 C.L.R. 32. 6. (1918) 25 C.L.R., at p. 43. 7. (1945) 72 C.L.R., at p. 65. 8. (1931) 46 C.L.R. 73. 9. (1945) 72 C.L.R., at pp. 81-83. 10. (1944) 321 U.S. 288, at p. 312 [88 Law Ed. 733, at p. 749]. 11. (1845) 1 C.B. 496, at pp. 515, 522 [135 E.R. 634, at pp. 642, 644-645]. 12. (1850) 14 Q.B. 672, at pp. 675, 680 [117 E.R. 259, at pp. 260-262]. 13. (1570) 1 Plowden 384, at p. 398 [75 E.R. 582, at p. 603]. 14. (1871) L.R. 6 C.P. 576, at p. 582. 15. (1917) 23 C.L.R. 510, at p. 544; (1919) 26 C.L.R. 276, at p. 282. 16. (1918) 45 Ind.App., at p. 129. 17. (1914) 79 J.P. 481. 18. [1925] A.C. 338. 19. (1925) 37 C.L.R., at p. 262. 20. (1928) 42 C.L.R. 1. 21. [1909] V.L.R., at pp. 51, 52. 22. (1909) 9 C.L.R., at pp. 309, 314, 315.

[234]

The same view as expressed in the High Court as to the position of the Governor in Council has been taken by State Supreme Courts in a number of cases, for example, N.S.W. Mining Co. Pty Ltd v Attorney-General (N.S.W.) [11] and McGowan v Bundaberg Harbour Board [12] . There are also two other Australian cases to which reference was made in argument. The first is the South Australian case In re a By-law made by the District Council of Prospect; Ex parte Hill [13] which concerned a by-law which prevented buses from stopping to put down passengers within 30 ft of a tramcar stopping place. It was argued that in fact the by-law had been made for the purpose of preventing buses competing with trams. The Full Court of the Supreme Court of South Australia held that the by-law was within the authorized purpose and this being so it was no ground for holding it bad that it may have served some other purpose as well. The Court said [14] : "The motives of the by-law making body, unless shewn to be mala fide, that is, dishonest or morally wrong, cannot be inquired into." This view however is not consistent with subsequent Australian cases, e.g., Werribee Council v Kerr [15] and Sydney Municipal Council v Campbell [16] . The second was Bailey v Conole [17] in which regulations made by the Governor in Council prohibited buses from picking up or setting down passengers on a route used by government trams. The regulations purported to have been made under a power to regulate the use of buses. It was conceded by counsel for the Crown that trams stopped on that route and Draper J. [18] observed that "it has not been disputed that the reason of the prohibition is to restrict competition with the Government Tramways, and on the facts of this case I have no doubt the regulation was made for this purpose", presumably meaning thereby not disputed by counsel. The regulations were held to be invalid. There was no discussion of any of the earlier Australian cases to which I have referred.

[239]

But I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act. The speeches of their Lordships make it clear that they regarded the exercise of the Minister's discretion as examinable by the court, whether or not he gave reasons for his decision, and that it was for the court to determine whether the discretion had been properly exercised within the scope of the legislation and that the court could examine the reasons which led to the particular decision for the purpose of determining whether they were relevant or erroneous in law or based upon extraneous considerations, including whether there had been a failure to take into consideration relevant matters. The decision in the Tameside Case [26] is to the same effect - see per Viscount Dilhorne [27] , per Lord Wilberforce [28] and per Lord Diplock [29] . Lord Russell said [30] : It is, my Lords, no doubt a most serious matter for the judiciary to overset a conclusion of a minister with overall responsibility in a field of such importance to the national welfare as education, when it is not suggested either that the conclusion was motivated by partly political considerations or that it involved bad faith. On the other hand it is not my understanding that the mere expression by the Secretary of State of his satisfaction that particular proposals are unreasonable deprives the court of the ability to decide that there were no sufficient grounds for that satisfaction and that consequently the Secretary of State must in some respect have misdirected himself in applying his mind to the problem. 1. [1968] A.C., at pp. 1032-1033. 2. [1977] A.C. 1014. 3. [1977] A.C., at p. 1062. 4. [1977] A.C., at p. 1047. 5. [1977] A.C., at p. 1064. 6. [1977] A.C., at p. 1074.

[246]

In the ostensible exercise of those powers an Order in Council was made on 3 April 1947 which provided that "all oats and barley in commercial positions in Canada ", with certain exceptions, "are hereby vested in the Canadian Wheat Board". The validity of that order was challenged by the respondents. It was held by the Privy Council that, save in a case of "bad faith", it was not competent for the courts to canvass the considerations which led the Governor-General in Council to deem it necessary to effect the vesting, or to ascribe to the Order in Council a purpose other than that which it professed to serve; the measures authorized were such as the Governor-General in Council, not the courts, deemed necessary or advisable. The reasons of their Lordships were delivered by Lord Radcliffe who said [35] : The orders that are valid under the Act are such orders as the Governor in Council may by reason of the continued existence of the emergency deem necessary or advisable for any of the specified purposes. The preamble of this order states that it is necessary by reason of the continued existence of the emergency to effect the vesting in the Wheat Board of such holdings as are now in question "for the purpose of maintaining, controlling and regulating supplies and prices, to ensure economic stability and an orderly transition to conditions of peace". How, then, can a court of law decide that the vesting was for another and extraneous purpose or hold that what the Governor in Council has declared to be necessary is not in fact necessary for the purposes he has stated? There is no warrant at all for presenting this as a case in which powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden. If bad faith of that kind can be established, a court of law may intervene: see, for instance, Lower Mainland Dairy Products Board v Turner's Dairy Ltd [1] . To speak of the "real purpose" of this order as being that of confiscating profits is to confuse means with ends, for the true question is whether it can be said that the Governor in Council could not have deemed it necessary to take this step as a means incidental to the realization of the purposes stated in this order. Clearly he could. Government authority which had hitherto depressed, was now to raise prices, and those responsible might well feel that they must accompany this action with a requisition of some of the profits that they thus created. Nor is this a case in which the order shows on the face of it a misconstruction of the enabling Act or a failure to comply with the conditions which that Act has prescribed for the exercise of its powers. On the contrary, the order shows on its face compliance with those conditions, and the problem considered by Clauson L.J. in R. v Comptroller-General of Patents [2] and by Duff C.J. in Reference as to the Validity of Certain Chemical Regulations [3] is not therefore a present problem. This is an order which not only recites that the Governor in Council regards the making of it as necessary for authorized purposes, but which in terms invokes the powers conferred on him by the Act of 1945. An order so expressed leaves no ground for a judicial inquiry whether the Governor can have intended to exercise those powers, a kind of inquiry which a court has sometimes found itself called on to make in a case where the instrument impugned is itself ambiguous: see, for instance, In re Price Bros. & Co. and the Board of Commerce of Canada [4] . In the circumstances prevailing here their Lordships are satisfied that the true answer to any invitation to the court to investigate the Order in Council on its merits or to ascribe to it a purpose other than that which it professes to serve is given in the words of Duff C.J. [5] in the Reference re Chemical Regulations: "I cannot agree that it is competent to any court to canvass the considerations which have, or may have, led him to deem such regulations necessary or advisable for the transcendent objects set forth. The words are too plain for dispute: the measures authorized are such asthe Governor General in Council (not the courts) deems necessary or advisable." The statement relied upon in argument was [6] : "If bad faith of that kind can be established, a court of law may intervene: see, for instance, Lower Mainland Dairy Products Board v Turner's Dairy Ltd [7] ." An examination of the case cited shows that it dealt, not with the Governor-General in Council or a Lieutenant-Governor in Council, but with the activities of a board established by an Order in Council of the Lieutenant-Governor of British Columbia pursuant to a statutory power. That order created a scheme to regulate dairy business in British Columbia and set up the appellant Board to administer it. The Board took various steps including procuring the incorporation of a company called The Milk Clearing House Ltd. and made various other orders for the purpose of carrying out the scheme which prohibited milk producers from selling milk otherwise than to that Clearing House. The order authorized the Clearing House to apportion the proceeds of the resale of the milk irrespective of the quality of and at what price each producer's milk had been sold. It was held that the orders made by the Board were beyond the powers granted by the Order in Council. The Court concluded that there was sufficient evidence to demonstrate that the purpose and the effect of the orders made by the Board were outside its powers under the Act and moreover that the provincial legislature had no power to authorize any such orders because under the British North America Act 1867 Imp it had no power to impose indirect taxation. It was held that extrinsic evidence was admissible to demonstrate the intention of the Board and the effect of its orders - see per Duff C.J. [8] and Taschereau J. [9] . No question arose as to the "bad faith" of the Lieutenant-Governor in Council; the only question was whether the Board established under the order made by the Lieutenant-Governor in Council had exceeded its authority and exercised its powers for an illegitimate purpose. 1. [1952] A.C. 427. 2. [1952] A.C., at pp. 444-445. 3. [1941] S.C.R. 573. 4. [1941] 2 K.B. 306, at p. 316. 5. [1943] S.C.R. 1, at p. 13. 6. (1920) 60 S.C.R. 265. 7. [1943] S.C.R., at p. 12. 8. [1952] A.C., at p. 444. 9. [1941] S.C.R. 573. 10. [1941] S.C.R., at pp. 575-576. 11. [1941] S.C.R., at pp. 579, 582-584.

[265]

As to his acting in an official capacity the Court considers that defendant has failed to show any provision in the law giving him the authority to interfere with the administration of the Quebec Liquor Commission and to order it to cancel a licence. The defendant had endeavoured to rely upon Art. 88 of the Quebec Code of Civil Procedure which provided that no public officer or person fulfilling any public function or duty could be sued unless notice of action had first been given. The trial judge held that the acts done by the defendant Premier were not founded in the exercise of his public functions or duties and that provision had no application. The conclusion is summarized in a headnote of the decision of the Supreme Court of Canada which is as follows [30] : Where by statute an independent licensing Commission is established, and given discretionary power to issue and cancel renewable licences conferring valuable economic benefits upon the holders, the exercise of discretion to cancel a licence must be related to the administration and enforcement of the Act; and it is an actionable wrong for a superior political official, e.g., the Premier and Attorney-General of the Province, to procure the cancellation of a licence by the Commission (holding office at pleasure) on grounds extraneous to the objects and purposes of the licensing Act. An allegation of good faith in the exercise of official functions is not a defence to such interference when there is no statutory authority entitling that official to direct the cancellation. Rand J. said [31] : In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power, exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another Province, or because of the colour of his hair? The ordinary language of the Legislature cannot be so distorted.

[284]

The view adopted by this Court in the series of cases to which I have referred has been adopted without dissent in all cases in which it has been adverted to, with the possible exception of Duncan v Theodore [43] in this Court, the dissenting judgment having been upheld in the Privy Council. It has however not always been part of the ratio decidendi of the majority and perhaps, on one view, it has not been so in any case. It is at least clear that it was unanimously approved in Blakeley's Case [44] . It is somewhat curious in the light of the substantial number of cases in which the doctrine has been referred to without adverse comment and, in some judgments at least, applied, that the only reason assigned for the rule is that the "counsels of the Crown are secret". That proposition is however no longer as absolute as perhaps it was at the time Dixon J. stated it. The decision of this Court in Sankey v Whitlam [45] demonstrated that the Crown privilege in respect of discovery of documents in litigation is by no means as extensive or absolute as it was at one time. The Minister's certificate in respect to Crown privilege is no longer regarded as outside the range of investigation by the courts, not only as to whether the privilege is properly claimed, but also as to whether the privilege exists in a particular instance. Sankey v Whitlam has decisively settled the nature of a Minister's claim for privilege by deciding not only that the court may go behind the certificate but that it may require the production of documents for the court's own inspection and then determine for itself whether the documents or the parts thereof sought to be relied upon should be the subject of privilege or should be produced in open court. No doubt documents of the Crown and of the Crown in Council are prima facie the subject of privilege when claimed but the decision as to what documents of the Crown shall be produced to the court is no longer that of the Crown or a Minister of the Crown but of the court itself. As a reason for the existence of the rule that the motives and purposes of the Crown may not be investigated it no longer has the force which it had in the past. Indeed, nowadays it would seem odd that, if documents of the Crown were within the control of the court and capable of being produced in evidence in open court upon the court giving an appropriate ruling, they could not be relied upon to show that a particular act in the exercise of statutory power had been done, perhaps mistakenly, for some purpose outside the purpose for which the power had been given.

[306]

[1939] 1 K.B. 232, at p. 245-246. 2. [1937] A.C. 898, at p. 917. 3. (1933) 50 C.L.R. 228, at pp. 242-243. 4. (1944) 69 C.L.R. 407, at p. 432. 5. [1910] 2 K.B. 165. That case was applied by Barwick C.J. in Wade v Burns [64] . In that case Menzies J. said [1] : It remains to consider whether the errors I have found justify mandamus to the mining warden to hear and determine the application according to law. In my opinion, they do. For an administrative authority to refuse an application under the mistaken belief that there is a statutory prohibition against granting it would call for mandamus to hear and determine according to law unless the statute made it clear that it was within the function of the administrative authority to determine finally the extent of his authority and to determine finally whether or not an application was within his authority. I do not read s. 46(3) as conferring any such authority upon the mining warden. That provision forbids the granting of an application for an authority in the circumstances there stated, and if it appears that a mining warden has mistakenly decided that an application must be refused because in the circumstances he is prohibited from granting it, mandamus lies to compel him to hear and determine the application according to law. Owen J. said [2] : The fact is that it was not for that reason that the application was refused. It was refused because the warden wrongly considered himself bound to apply ss. 46(3) and 50(2)(a) and applied them. In doing so he constructively failed to hear and determine the matter according to law and mandamus should, in my opinion, go. See also Hammond v Hutt Valley and Bays Metropolitan Milk Board [3] .
1. (1947) 47 S.R. (N.S.W.) 416, at p. 420.
2. [1939] 1 K.B. 232, at p. 245-246.
3. [1937] A.C. 898, at p. 917.
4. (1933) 50 C.L.R. 228, at pp. 242-243.
5. (1944) 69 C.L.R. 407, at p. 432.
6. [1910] 2 K.B. 165.
7. (1966) 115 C.L.R. 537, at p. 555.
8. (1966) 115 C.L.R., at p. 562.
9. (1966) 115 C.L.R., at pp. 568-569.
10. [1958] N.Z.L.R. 720.

[332]

In any event, this submission would only avail the applicant if it were correct in its premise, namely, that so long as an application has been made pursuant to s. 50 of the Land Rights Act in respect of unalienated Crown land, then a subsequent change in the status of the land is immaterial. It is true that s. 50 outlines the function of the Commissioner "on an application being made" in respect of a traditional land claim to an area of land which satisfies a given description. It is clearly the policy of the Act that a land claim can be entertained only in respect of land which is "unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". But, unfortunately, from the point of view of the claimants, the Act does not prevent the land being alienated subsequently to an application being made, nor does it provide any procedures whereby a claim may be granted notwithstanding such an alienation. The applicant pointed to the provision in s. 11(1)(d) whereby the Minister, in the event that he is satisfied that the land or any part of it should be granted to the Aboriginals, is required in the case of alienated Crown land to ensure that the estates and interests in that land of persons other than the Crown are acquired by the Crown by surrender or otherwise. But in my opinion this provision is simply a recognition of the fact that an application may be made under s. 50 in respect of land which is alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - hence the emphasis on "surrender". I am forced, reluctantly, to the conclusion that the Commissioner's function under s. 50(1)(a) extends only to land which satisfies the description contained therein. A change in the status of the land subsequently to the making of an application whereby the land ceases to fit the description necessarily has the effect of depriving the Commissioner of any further function in respect of it.

[343]

The Northern Territory of Australia is hereby established as a body politic under the Crown by the name of the Northern Territory of Australia. This section is of fundamental and far-reaching importance. It brings into being a new self-governing polity under the Crown. Of necessity, it required the appointment of a representative of the Crown in right of that polity, to administer the government thereof and perform the traditional vice-regal functions. Section 6 invests the Legislative Assembly with power to make laws for the peace, order and good government of the Territory, a power which in my opinion, subject to the limits provided by the Act, is a plenary power of the same quality as, for example, that enjoyed by the legislatures of the States. The constitution of the Territory as a self-governing community is no less efficacious because it emanates from a statute of the Parliament of the Commonwealth than was the constitution of the Australian colonies as self-governing communities in the nineteenth century by virtue of an Imperial statute: cf. Hodge v The Queen [13] ; Powell v Apollo Candle Co. [14] . In my opinion, the Self-Government Act is a valid exercise of the power conferred on the Parliament by s. 122 of the Constitution. The fact that the Administrator is appointed by the Governor-General and holds office at his pleasure does not deny his character as representative of the Crown in right of the Territory: Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [15] ; R. v Carroll [16] . The status of the new polity is borne out by the provisions of the Self-Government Act, which, contrary to the submission of the applicant, differs significantly from the earlier Administration Act. The Administrator no longer administers the government of the Territory "on behalf of the Commonwealth"; that government is henceforth administered in its own right by the Administrator (s. 32). There is no longer any general subjection of the Administrator to the instructions of the Commonwealth Minister; henceforth such instructions are of force only in relation to the exercise of the powers and functions of the Administrator that fall outside ss. 34 and 36 which cover decisions touching the size of the ministry and the participation of members of the Legislative Council in that ministry, and in relation to matters which fall outside those in respect of which the Ministers of the Territory are to have executive authority (ss. 32 and 35). The range of matters which have been specified pursuant to s. 35 is extensive. The effect of the section is such as to limit the possible impact of ministerial instructions to a small compass. Mr. Sher stressed the fact that the Administrator is still required to take an oath of service to the Crown, but in my opinion this does not determine his relationship to the Crown. Furthermore, while there are provisions which emphasize a continuing role for the Governor-General in relation to the assent to bills, and to their disallowance (ss. 8 and 9), and which maintain a special relationship between the Territory and certain specified laws of the Commonwealth (see, for example, ss. 53 and 54), and while it remains true that the Parliament retains the power to repeal or amend the enactment, none of these things destroy the analogy in the present situation with the relationship that existed between the United Kingdom Government and Parliament and the Australian colonies in the nineteenth century. The creation of a new polity under the Crown, with its own Crown representative, remains a fact. 1. (1883) 9 App. Cas. 117. 2. (1885) 10 App. Cas. 282. 3. [1892] A.C. 437. 4. [1948] S.C.R. 126.

[354]

Against this background, I return to the complaint of the applicant in this case. The Administrator made a regulation which was in due form and to all appearances a proper exercise of the power conferred by s. 165 of the Planning Act. In the exercise of the power, he was obliged to act with the advice of the Executive Council consisting of persons then holding ministerial office (Northern Territory (Self-Government) Act 1978, s. 33). It will be observed at once that the power found its origin in statute, not in the prerogative. In my opinion, the Commissioner has jurisdiction to entertain, in the course of determining whether the Cox Peninsula is unalienated Crown land within the meaning of the Land Rights Act, an allegation that the regulation in question is invalid because it was not made for the purpose of advancing the policy and objects of the Planning Act, but for the ulterior purpose of placing the Peninsula beyond the reach of a land rights claim. This conclusion is not affected by precise considerations based on the construction of the power to make regulations contained in s. 165; it simply recognized that every Act supplies a perspective in which the policy and objects of the legislature can be discerned, and which serves to provide that framework within which the legislature intended the powers which it conferred to be exercised. The scope of judicial review which a statute concedes to a court will vary from Act to Act, depending on the kind of considerations which Dixon J. outlined in the Vegetable Seeds Case to which I have referred [32] : see also Lord Wilberforce in Tameside [33] . I would not expect this understanding of the relevant principles to impede good government. It must be seldom that a regulation in due form and apparently within power will be open to challenge on the ground that it was made for reasons which are unrelated to the intent and purpose of the Act. Nor is there any reason to suppose that the principles of law touching Crown privilege will be inadequate to afford proper protection to the relationship between the representative of the Crown and his ministerial advisers.

[363]

"town" has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town. This definition is apt to include the Cox Peninsula, provided that the Planning Act, vis-à-vis the relevant regulation, satisfies the description of a law "relating to the planning and developing of towns and the use of land in or near towns". No doubt that Act is capable of satisfying the description in so far as it deals with towns and the use of land in or near towns, but in my opinion it could not be so described when it is dealing with other land. If this is so, then, theoretically, it is open to the claimants to assert that the Cox Peninsula is not land "near" the town of Darwin with the consequence that the Commissioner has jurisdiction to entertain their claim because, notwithstanding the regulation under the Planning Act, the land the subject of the claim is unaliented Crown land within the meaning of the Land Rights Act. In my opinion this question must be determined by the Commissioner as a fact on which his jurisdiction would depend; it is not strictly analogous to the issue of "adjacency" which the Commissioner deferred for later consideration when he was dealing with the regulation under the Town Planning Act, and which was relevant to the validity of the regulation rather than to the operation of the Land Rights Act upon it. Notwithstanding that it is a matter for the Commissioner, I propose to express briefly my view upon it, because I do not think that in this case the issue can be resolved favourably to the claimants, and it would be insensitive of me to encourage them to find any comfort in it. The material which is before the Court includes plans which show the area of land to which the regulation in question refers. It appears to extend more or less uniformly out in all directions (excluding the sea) from the boundaries of the town of Darwin to a furthest distance of between thirty and forty miles. In the course of argument, the Court was informed from the Bar table that the nearest point to Darwin of the Cox Peninsula was about 6 kilometres across the harbour, that the whole of the peninsula was contained within a 25 kilometre radius from the town, but that access by road entailed a journey of almost one hundred kilometres by a route that was sometimes impassable. The question of proximity to a town must be a question of fact and degree. Having regard to the facts that - (a) the specified area covers an unbroken area of land which is adjacent to the town boundaries, (b) the peninsula is readily accessible by sea and air, (c) it is already the subject of existing planning proposals which led the Commissioner not to be satisfied that the land was not capable of fulfilling a town planning purpose, I find inescapable the conclusion that the Planning Act, in relation to the regulation in question, is a law relating to "the planning and developing of towns and the use of land in or near towns" within the meaning of the Land Rights Act.