Scott v Northern Territory of Australia & Anor

Federal Court of Australia|2003-07-01|Before: Madgwick J, Robert J

See Northern Territory (Self-Government) Act 1978 (Cth), s5.

See Capital Duplicators v ACT (1992) 177 CLR 248 at 281-3, 284; Traut v Rogers (1984) 27 NTR 29 at 31, 35; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153; Northern Territory v Skywest Airlines (1987) 48 NTR 20; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462; Svikart v Stewart (1994) 181 CLR 548; Wake and Gondarra v Northern Territory (1996) 109 NTR 1.

See Self-Government Act, s6.

See Self-Government Act, s73.

The Queen v Kearney; Ex ParteJapanangka (1984) 158 CLR 395.

It is also the case that where the Commonwealth acquires land within a State, the laws of that State cease to operate in that place except as expressly provided: see Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93. There can be no suggestion in this case that the laws of the Northern Territory did not operate in the Darwin Prison by operation of the principle. First, land within a Territory created pursuant to section 122 of the Constitution cannot be characterised as a Commonwealth place for the purposes of section 52(i) of the Constitution: seeSvikart v Stewart (1994) 181 CLR 548. Secondly, upon self-government all land within the borders of the Northern Territory vested in the new body politic by dint of section 69 of the Self-Government Act, and there has been no relevant acquisition pursuant to section 70 of that Act.

It is also clear that Northern Territory Police are officers of the Crown in right of the Territory, rather than the Crown in right of the Commonwealth. The Commissioner of Police is appointed by the Administrator for the Northern Territory. The Commissioner of Police determines the number of members and ranks of the Police Force, and makes appointment to those ranks. The Crown in right of the Territory is liable in respect of torts committed by members of the Northern Territory Police in the performance of the duties: see Police Administration Act 1978 (NT), s163.

Australian Federal Police Act 1979 (Cth), s8.

See paragraphs 15 to 18 below.

It has long been held that laws made under section 122 of the Constitution are not laws made by the Commonwealth Parliament for the purposes of section 76(ii) of the Constitution: see Northern Territory v GPAO (1999) 196 CLR 553 at 597; Kruger v The Commonwealth (1997) 190 CLR 1 at 169-170; Spratt v Hermes (1965) 114 CLR 226 at 249-250. For these purposes, whilst a law made by the Commonwealth Parliament in exercise of the power conferred by section 122 of the Constitution is a law of the Commonwealth, a law passed by the Legislative Assembly of the Northern Territory is not.

See Lockwood v Commonwealth (1954) 90 CLR 177; R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473; Ross v Costigan (1982) 59 FLR 184 at 119-200.

Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25.

See Pearce & Geddes, Statutory Interpretation in Australia (5th Edition), paragraph [6.60]; Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 at 170.

This construction draws support from the fact that section 6H of the Royal Commissions Act 1902 (Cth) contains its own code for the punishment of witnesses who knowingly give false or misleading evidence before a Royal Commission. Nor does this specific provision vest the Australian Federal Police with responsibility for the investigation of any alleged assault or murder taking place at the Darwin Prison. The responsibilities of the Australian Federal Police extend only to matters transpiring during the course of the Royal Commission.

R v Kidman (1915) 20 CLR 425.

Spratt v Hermes (supra) at 251.

Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599.

R v Murphy (1985) 158 CLR 596 at 611-612.

There is also other Commonwealth legislation which creates substantive offences such as the Taxation Administration Act 1953, the Income Tax Assessment Act 1936, the Social Security Act 1991, the Australian Securities Commission Act 1989, the Trade Practices Act 1974. The allegations made by the plaintiffs could not conceivably give rise to any offence under that legislation and those provisions are not relevant for present purposes.

Crimes Act 1914 (Cth) Parts 1B and 1C; Director of Public Prosecutions Act 1983 (Cth).

Compensation (Fatal Injuries) Act 1979(NT)

Royal Commission Act 1902(Cth)

Commission of Inquiry (Deaths in Custody) Act 1987(NT)

Thus, the Judiciary Act 1903(Cth)

See Northern Territory (Self-Government) Act 1978(Cth)

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