Svikart v Stewart

Svikart v Stewart - [1994] HCA 62 - HCA 1994 case summary — Zoe

[20]

It is clear that the origin of the provision in that form was s. 8(17) of Art. 1 of the Constitution of the United States which provides: The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. The first part of cl. 17, relating to the seat of government, is said to have been prompted by occurrences which took place near the close of the Revolutionary War when Congress in session in Philadelphia was surrounded and insulted by a body of mutineers of the Continental Army and the State did little to assist [6] . The second part, dealing with places purchased with the consent of the State, was thought necessary so that the consent of the State would carry with it political dominion and legislative authority. This was before the right of eminent domain was recognized [7] , and the view was that, in the case of land acquired without consent, the possession of the United States would be simply that of an ordinary proprietor subject to the legislative authority and control of the State [8] . 1. See Tasmania v The Commonwealth and Victoria (1904), 1 C.L.R. 329, at pp. 333, 350; New South Wales v The Commonwealth (the Incorporation Case) (1990), 169 C.L.R. 482, at p. 501. 2. See Official Record of the Debates of the Australasian Federal Convention (Sydney), 3 April 1891, pp. 701-702; see also Griffith, Successive Stages of the Commonwealth of Australia (1891), p. 477. 3. See Spratt v Hermes (1965), 114 C.L.R. 226, at p. 273. 4. See Kohl v United States (1875), 91 U.S. 367. 5. See Fort Leavenworth Railroad Co. v Lowe (1885), 114 U.S. 525, at pp. 538, 542.

[31]

It was for these reasons that Brennan, Deane and Toohey JJ. said [17] that Isaacs J.'s observation in Nott Bros. & Co. Ltd. v Barkley [18] that "exclusive" meant exclusive of State Parliaments was right as a matter of history, there being no self-governing Territory legislatures at the time, but was not right as a matter of construction. But in Capital Duplicators Pty Ltd v Australian Capital Territory the Court was concerned with the construction of s. 90 rather than s. 52. Section 90 is not the source of the legislative powers which it makes exclusive to the Parliament. Those powers are to be found in s. 51(ii) (the taxation power) and s. 51(iii) (the bounties power) and are circumscribed. In the case of the power to make laws with respect to taxation the power must be exercised so as not to discriminate between States or parts of States. In the case of the power to make laws with respect to bounties the power must be exercised so that the bounties shall be uniform throughout the Commonwealth. It was the nature of the powers and the evident intention of other sections of the Constitution to create a type of internal free trade area embracing the geographical territory of the Commonwealth, rather than any considerations arising from s. 52, which led the majority to their conclusion [19] . There is, we think, nothing in their reasoning which would throw any doubt upon a construction of s. 52(i) which confines places acquired by the Commonwealth to places acquired within a State. On the other hand, it would be a curious result, to say the least, if s. 52(i), in making exclusive the power of the Parliament to legislate with respect to Commonwealth places, were to reduce the scope of s. 122 which, particularly when read with s. 111, was clearly intended to confer upon the Parliament a largely unfettered as well as an exclusive power to legislate with respect to the government of a Territory. As Capital Duplicators Pty Ltd v Australian Capital Territory shows, there may be some qualifications to the power to make laws under s. 122 which are to be found elsewhere in the Constitution but which as yet remain unidentified but, putting to one side the special considerations applicable to the "seat of government" [20] , there is nothing elsewhere in the Constitution which would inhibit s. 122 so as to prevent it conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory. And if s. 52(i), which is the source of the exclusive power to make laws with respect to Commonwealth places, does not confine the Parliament's power under s. 122 because the places referred to are places in a State, then there is no reason why, in a Territory, a separate legislature should not have power conferred upon it by the Parliament to legislate with respect to places acquired by the Commonwealth within the Territory.

[112]

Art. 1, s. 8, cl. 17 provides: "The Congress shall have power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings." 2. For a comparison with the different status of the Colonies which, on federation, became the Australian States, see Worthing v Rowell & Muston Pty Ltd (1970), 123 C.L.R., at pp. 99-100, per Barwick C.J. 3. Clause 53 of the draft Bill, as debated at the Sydney Convention in 1891, was expressed to confer power on the Parliament with respect to: "The government of any territory which may by surrender of any State or States and the acceptance of the parliament become the seat of government of the commonwealth, and the exercise of like authority over all places acquired by the commonwealth, with the consent of the parliament of the State in which such places are situate, for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of general concern." See Official Record of the Debates of the Australasian Federal Convention (Sydney), 3 April 1891, pp. 701-702. The reference to "the consent of the State in which such places are situate" was later removed at the Melbourne Convention in 1898. See Official Record of the Debates of the Australasian Federal Convention (Melbourne), 4 March 1898, p. 1874. 4. See Heimann v The Commonwealth (1938), 38 S.R. (N.S.W.) 691, at p. 695, per Jordan C.J. See also Chandler Bros. Ltd. v Boswell [1936] 3 All ER. 179, at pp. 186-187; Maritime National Fish Ltd. v Ocean Trawlers Ltd. [1935] AC. 524, at p. 529; Codelfa Construction Pty Ltd v State Rail Authority of N.S.W. (1982), 149 C.L.R. 337, at pp. 352-354, per Mason J.; p. 403, per Brennan J. Note also the rule referred to in Heimann (1938), 38 S.R. (N.S.W.), at pp. 695-696, that "[w]here a term is not expressed in a contract, but would be implied by law, its implication may be excluded by proof that both parties agreed or intended to exclude the term".

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