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[1994] HCA 62
High Court of Australia
1994-07-01
McHugh JJ
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Svikart v Stewart [1994] HCA 62
ORDER Answer the questions reserved as follows: 1. Does s. 52(i) of the Constitution apply to places in the Northern Territory acquired by the Commonwealth for public places? Answer: No. 2. Is the R.A.A.F. Base Darwin a Commonwealth place within the meaning of s. 52(i) of the Constitution? Answer: No. 3. If yes to 1 and 2, do the Acts and Regulations referred to in par. 1 of the Case Stated [the Traffic Act and the Traffic Regulations] apply to the driving by the defendant of the motor vehicle on the R.A.A.F. Base? Answer: Unnecessary to answer.
1994, Dec. 7 Mason C.J., Deane, Dawson and McHugh JJ.
The defendant was charged under s. 19(2) of the Traffic Act 1987 (NT) with having driven a motor vehicle on a public street whilst his blood alcohol concentration was more than .08 per cent. He was also charged with having driven without a licence on a public street contrary to s. 32 of the Traffic Act and with having driven on a public street without due care contrary to reg. 95 of the Traffic Regulations 1988 (N.T.). The Traffic Regulations are made pursuant to s. 53 of the Traffic Act. The offences are alleged to have occurred in Anaroo Road or at the intersection of Anaroo and Billeroy Roads. Both Anaroo Road and Billeroy Road are wholly within the R.A.A.F. Base at Darwin in the Northern Territory.
Section 5 of the Northern Territory (Self-Government) Act 1978 Cth established the Northern Territory as a body politic under the name of the Northern Territory of Australia. Section 6 of that Act gave to the Legislative Assembly of the Territory power, subject to the assent of the Administrator or the Governor-General, to make laws for the peace, order and good government of the Territory. Under s. 69(2) of that Act all interests of the Commonwealth in land in the Territory, other than certain specified interests, were vested in the Territory. Section 70 provided for the acquisition by the Commonwealth without compensation of any interest in land vested in the Territory by s. 69(2). The R.A.A.F. Base at Darwin, which had been acquired by the Commonwealth before self-government of the Territory, was re-acquired by the Commonwealth pursuant to s. 70 for the purpose of defence. The Commonwealth is now the registered proprietor of the land comprising the Base pursuant to the provisions of the Real Property (Special Provisions) Act 1979 (NT).
The question was raised before the stipendiary magistrate hearing the charges against the defendant whether, assuming the R.A.A.F. Base was a Commonwealth place within the meaning of s. 52(i) of the Constitution, the Traffic Act had any application to the roads in question. Subsequently the matters being heard by the stipendiary magistrate were removed into this Court pursuant to s. 40(1) of the Judiciary Act 1903 Cth and a case was stated and questions were reserved for the consideration of the Full Court. The questions reserved are:
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to -
(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
(iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.
In Worthing v Rowell & Muston Pty Ltd [1] it was held that s. 52(i) gives to the Commonwealth Parliament an exclusive power to legislate generally with respect to places of the kind referred to in that provision. As a consequence in that case, New South Wales building regulations were held to have no application within the R.A.A.F. Base at Richmond in New South Wales, that being a place "acquired by the Commonwealth for public purposes" within the meaning of s. 52(i). This decision was followed in Attorney-General (N.S.W.) v Stocks & Holdings (Constructors) Pty Ltd [2] in respect of a place acquired by the Commonwealth in New South Wales for use as a rifle range. In Reg. v Phillips [3] the Court held that, upon the acquisition of a place by the Commonwealth for public purposes, the effect of s. 52(i) was to displace State laws which had previously applied in that place. In that case the place was an R.A.A.F. Base in Western Australia.
As a result of these decisions the Commonwealth Places (Application of Laws) Act 1970 Cth was passed. Section 4 of that Act applies the laws of a State, whether in force before or after the commencement of the Act, to Commonwealth places within the State. The Act has, therefore, no application to places acquired by the Commonwealth in a Territory. In that regard, it is relevant to note that the question of the applicability of s. 52(i) to places acquired in a Territory did not arise for consideration in any of the earlier cases. It is that question which now arises for the first time for the decision of the Court.
It is permissible to have regard to the history of constitutional provisions in order to establish their object and the draft Bills considered by the Constitutional Conventions have long been considered a legitimate aid to interpretation [4] . The successive drafts of s. 52(i) shed considerable light upon the object of that provision. Clause 53 of the draft Bill contained in the Report submitted by the Constitutional Committee on 31 March 1891 and debated at the National Australasian Convention (Sydney) in 1891, was relevantly as follows [5] :
The Parliament shall, also, subject to the provisions of this constitution, have exclusive legislative power to make all such laws as it thinks necessary for the peace, order, and good government of the commonwealth with respect to the following matters:
(2) 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.
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.
The reasoning which lay behind cl. 17 may not have had any precise application to cl. 53, but it is clear from the words "with the consent of the parliament of the state in which such places are situate" that the clause was intended to be confined to places acquired in a State and not to extend to places in a Territory where the Commonwealth would, in any event, have political dominion and legislative authority. Territories were, of course, envisaged, though there were no Territories at the time of federation.
The words "with the consent of the parliament of the state in which such places are situate" remained in cl. 53 until the 1898 Convention in Melbourne. At that Convention Mr. O'Connor successfully moved the insertion in the draft Bill of what was to become s. 51(xxxi) of the Constitution, giving the Parliament power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws [9] . Immediately thereafter, again upon Mr. O'Connor's motion, the words "with the consent of the state in which such places are situate" were deleted from cl. 53 [9] . After the 1898 Convention the words of the clause were further simplified so as to result in the provision which is now s. 52(i). The removal of the words "with the consent of the state in which such places are situate" would seem to be explicable only by reference to the power of compulsory acquisition given to the Commonwealth immediately beforehand. At all events, that was the context in which the amendment was made and, no reference being made to places in a Territory, it can hardly be thought that its purpose was to extend the ambit of the clause to places acquired in a Territory. And, of course, the Convention had agreed to a clause, which was to become s. 122 of the Constitution, giving power to the Parliament "to make such laws as it thinks fit for the administration and government of any Territory" [10] . It also had before it a clause, previously agreed to, which was to become s. 111 of the Constitution, providing for the surrender by a State and the acceptance by the Commonwealth of any part of the State whereupon "such part of the state shall become and be subject to the exclusive jurisdiction of the Commonwealth" [11] .
These considerations point ineluctably to the conclusion that, in referring to the exclusive power of the Parliament to make laws for the peace, order and good government of Commonwealth places, s. 52(i) is speaking of legislative power which is exclusive of the legislative power of the States. That was the view expressed by Isaacs J. in Nott Bros. & Co. Ltd. v Barkley where he said of the word "exclusive" in s. 90 [12] :
The word "exclusive" means simply exclusive of State Parliaments, "exclusive" as opposed to concurrent, "exclusive" in the sense in which that word is found in ss. 52 and 107. It was not intended to limit the ambit of Commonwealth parliamentary power but to make that power exclusive on the subject matter. That view requires some modification in relation to s. 90 and, as a consequence, s. 52(iii) in the light of the decision of the majority in this Court in Capital Duplicators Pty Ltd v Australian Capital Territory [13] , but there is, in our view, no reason to question it in relation to s. 52(i). 1. (1925) 36 C.L.R. 20, at p. 29. 2. (1992) 177 C.L.R. 248.
It is otherwise plain that s. 52(i) was intended to provide for exclusive Commonwealth legislative power with respect to places acquired by the Commonwealth in a State. To achieve this in an Australian context there was no need, as there was in the United States, to think in terms of territorial sovereignty. It was sufficient that acquisition of property should carry with it legislative authority without political dominion. In any Territory surrendered by a State and accepted by the Commonwealth, territorial sovereignty, or political dominion, would exist under ss. 111 and 122 of the Constitution and would, by its very nature, exclude the States. Nevertheless, in arriving at this situation, the American experience was instructive and so it is that the terminology of s. 52(i) reflects s. 8(17) of Art. 1 of the United States Constitution [14] .
Section 52(i) provides for the exclusive power to make laws with respect to the seat of government as well as places acquired by the Commonwealth for public purposes. Under s. 125, the seat of government is required to be within territory granted to or acquired by the Commonwealth. There is now a Territory, the Australian Capital Territory [15] , within which the seat of government has been located, although its limits have not been precisely determined by the Parliament. The seat of government is, however, not co-extensive with the Territory in which it is located nor, under s. 125, is it intended to be. The Parliament must rely upon s. 122 for the power to make laws for the government of that Territory. That power is not made subject to the Constitution as is the power to make laws with respect to the seat of government under s. 52(i). Moreover, the power to make laws with respect to the seat of government would seem to be concerned with its political or constitutional aspects, rather than with the government of the territory which it occupies. It is not only the presence of s. 122 which indicates this to be so, but also the fact that, unlike the power under s. 122, the power to make laws with respect to the seat of government is expressed to be a power to make laws for the peace, order and good government of the Commonwealth. It is, however, unnecessary for the purposes of this case to seek to work out the difficult question of the precise relationship between s. 52(i)'s specific reference to the "seat of government" and s. 122. It suffices to say that there is nothing in the inclusion of the seat of government in s. 52(i) as a subject matter of exclusive legislative power which would place in question a construction of the provision which confines places acquired by the Commonwealth to places acquired in a State.
In Capital Duplicators Pty Ltd v Australian Capital Territory [16] this Court held by a majority that s. 122 should not be construed as authorizing the Parliament to create a new legislature for an internal Territory with power to make laws imposing duties of customs or excise or granting bounties on the production or export of goods. The view was taken that a legislature created to confer self-government upon a Territory - in that case the Australian Capital Territory - must be regarded as a body separate from the Commonwealth Parliament, so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament's legislative power. Hence, it was concluded that, since the power of the Parliament to impose duties of customs and excise and the power to grant bounties on the production or export of goods are made exclusive by s. 90 of the Constitution, s. 122 could not authorize the Parliament to confer those powers upon the Territory legislature.
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.
For these reasons, we would answer the questions reserved as follows:
The R.A.A.F. Base at Darwin in the Northern Territory was acquired by the Commonwealth for public purposes. The defendant, seeking to abort a prosecution for an alleged offence under the Traffic Regulations 1988 of the Territory (made pursuant to a law enacted by the Legislative Assembly of the Northern Territory), contends that the Regulations do not operate within the base. The contention is founded on s. 52(i) of the Constitution and the decision of this Court in Worthing v Rowell & Muston Pty Ltd [21] . If the base is a place of the kind with respect to which the Parliament has exclusive legislative power under s. 52(i), the question whether the Regulations operate within the base will turn on the meaning of exclusive in s. 52: is the legislative power of the Parliament with respect to such a place exclusive of the legislative power of the Territorial legislature or exclusive only of the legislative power of State legislatures? If it be exclusive of the legislative power of the Territorial legislature, the Regulations would not operate within the base. Unlike State laws which are picked up by the Commonwealth Places (Application of Laws) Act 1970 Cth and applied as Commonwealth law to Commonwealth places in a State [22] , the laws of a Territory are not similarly applied to Commonwealth places.
When the Constitution came into force, the only legislative powers (other than Imperial legislative power) which could have been exercised concurrently with the legislative power of the Parliament were the legislative powers of the respective Australian States. That historical fact suggests that it was only State legislative power that was to be excluded by s. 52 [23] . However, there is no apparent policy reason why the matters with respect to which the Parliament's legislative power was made exclusive by s. 52 should be outside the reach of State legislative power but within the reach of the legislative power of a Territorial legislature. The distinction, if there be a distinction, between State and Territorial legislative powers for the purposes of s. 52(i) must arise from s. 122 which confers on the Parliament the exclusive authority to create a Territorial legislature and to define the powers of that legislature [24] . As the Parliament retains legislative power over both the subject matter of s. 52(i) and the Parliament's creatures, the Territorial legislatures, it might be said that the Parliament ultimately retains an exclusive legislative power over "places" and "the seat of government" situated within the boundaries of a Commonwealth territory. It is not necessary to decide that question in this case, for reasons next to be stated. And, as the exclusivity of the legislative power of the Parliament with respect to the seat of government is a question of considerable importance to the federal polity [25] , it is desirable to leave the issue for determination to another day.
Whatever meaning be attributed to "exclusive" in s. 52, it will not conclude the meaning to be attributed to "places" in sub-s. (i). The question for determination in this case is whether the reference in sub-s. (i) to "all places acquired by the Commonwealth for public purposes" includes places in the Northern Territory.
It is noteworthy that the general legislative power that is made exclusive to the Parliament by sub-s. (i), unlike the particular powers made exclusive by sub-s. (ii) and the powers referred to in sub-s. (iii), is defined by reference to geographic area [26] , not subject matter. At the time of federation, the six Colonies covered the whole of the geographic area of the Commonwealth, but provision was made for the creation of Commonwealth Territories in areas which theretofore had been included within the boundaries of a State. At that time, the only concurrent legislative power that might have been exercised over a Commonwealth place within Australia was the legislative power of the State within the boundaries of which it lay [27] . Thus any place in a State acquired by the Commonwealth for a public purpose would have been within the area over which the State exercised legislative power. In the absence of s. 52(i), that place would have been governed by the enacted laws of the State, subject (by reason of s. 109) to any inconsistent law of the Commonwealth [28] .
The Australian Capital Territory was granted to or acquired by the Commonwealth pursuant to s. 125 which prescribed that that territory be "in the State of New South Wales" [29] . Being within the boundaries of New South Wales, the laws of that State might have applied or might have been thought to have applied to that territory including, if it were not for s. 52(i), the seat of government that was to be within that Territory [30] .
By contrast with "places" within State boundaries and the Australian Capital Territory, the territories which were to be created pursuant to s. 111 of the Constitution could not be subject to the legislative power of a State. Territories surrendered by a State and accepted by the Commonwealth pursuant to s. 111 were declared to be "subject to the exclusive jurisdiction of the Commonwealth". They were taken out of the boundaries of the surrendering State [31] . The Commonwealth acquired, subject to the Constitution, full sovereignty over a s. 111 territory [32] . Not only did a surrendering State lose legislative power over the s. 111 territory; it lost all "jurisdiction" over it, including executive and judicial power. To construe the word "places" in s. 52(i) as including areas within a s. 111 territory would therefore be otiose, for the exclusivity of the legislative power of the Parliament with respect to the "places" referred to in s. 52(i) was effected in any event by s. 111. But it was not otiose to provide that "places" within a State or the seat of government ("within territory in the State of New South Wales") should be subject to the exclusive legislative power of the Parliament.
Having regard to the purpose of s. 52(i) and the effect of a surrender and acceptance of territory under s. 111, I would construe "places" in s. 52(i) as being places outside a s. 111 territory. The R.A.A.F. Base at Darwin is not such a place, for the Northern Territory is a s. 111 territory. Therefore I would answer the questions reserved for the opinion of the Full Court as follows:
The defendant, Charles Edward Stewart, has been charged with three offences under the provisions of the Traffic Act 1987 (NT) and the regulations made thereunder. The complainant, Gottlieb Thomas Svikart, is a senior sergeant in the Northern Territory Police Force.
The first charge is of driving a motor vehicle on a public street, while having a concentration of alcohol in his blood in excess of that permitted. The second is of driving on a public street without due care. The third is of driving on a public street without being licensed to do so. The "public street" referred to in each of the charges is wholly within the R.A.A.F. Base, Darwin.
In the Court of Summary Jurisdiction at Darwin the defendant submitted that the Traffic Act had no application to streets within the R.A.A.F. Base because the base was a Commonwealth place within s. 52(i) of the Constitution and that only the Parliament of the Commonwealth could make laws in respect of such places. After the defendant and the complainant had made submissions to Mr. Lowndes S.M., the matter between the parties was removed into this Court.
The Chief Justice stated a case and reserved for the consideration of the Full Court of the Court questions which, as amended, read:
(i) Does s. 52(i) of the Constitution apply to places in the Northern Territory acquired by the Commonwealth for public purposes?
(ii) Is the R.A.A.F. Base Darwin a Commonwealth place within the meaning of s. 52(i) of the Constitution?
(iii) If yes to (i) and (ii), do the Acts and Regulations referred to in par. 1 of the Case Stated apply to the driving by the defendant of the motor vehicle on the R.A.A.F. Base?
There is in fact only one Act involved, the Traffic Act; the regulations are those made pursuant to that Act.
It is necessary, at the outset, to say something of the status of the land occupied by the R.A.A.F. Base. The base was originally acquired by the Commonwealth for defence purposes between 1938 and 1942. The circumstances in which the base was acquired were not detailed to the Court but it was said by the Solicitor-General for the Northern Territory that, during this period, "there were a large number of purchases or acquisitions from individuals and institutions".
The Northern Territory (Self-Government) Act 1978 Cth ("the Self-Government Act") provides that all interests of the Commonwealth in land in the Territory are, by force of the section, vested in the Territory on the commencing date (s. 69(2)). "Territory" is defined to mean "the Northern Territory of Australia" (s. 4(1)). The Northern Territory of Australia is established as a body politic, under the Crown, by that name (s. 5). However, the Act provides machinery whereby the Commonwealth, within one year after the commencing date, may acquire land from the Territory for a public purpose, without any liability for payment of compensation (s. 70). In essence, that acquisition is effected by notice of acquisition. Land so acquired is "vested in the Commonwealth" (s. 70(4)(a)). The R.A.A.F. Base was acquired by the Commonwealth from the Territory pursuant to s. 70 of the Self-Government Act and the Commonwealth of Australia is and was at the relevant date the registered proprietor in accordance with the Real Property (Special Provisions) Act 1979 (NT).
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to -
(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
(iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.
In the present case it is a law of the Territory which, the defendant argues, has no application to the R.A.A.F. Base as a Commonwealth place. An examination of that argument requires some reference to decisions of the Court touching the operation of s. 52(i) in relation to Commonwealth places in the States.
In Worthing v Rowell & Muston Pty Ltd [33] the Court held that a law of New South Wales regulating the conduct of persons engaged in building operations had no application to the R.A.A.F. Base at Richmond. That base was owned by the Commonwealth and had been acquired for the purpose of a base before the law came into force. The Court applied this decision in Attorney-General (N.S.W.) v Stocks & Holdings (Constructors) Pty Ltd [34] to hold that a law of New South Wales bringing into operation a building scheme had no application to land acquired by the Commonwealth for use as a rifle range for the defence forces of the Commonwealth. In Reg. v Phillips [35] the Court held that on the acquisition by the Commonwealth of land for the purpose of an air force base, the operation of State laws formerly applicable to that place had been terminated. Accordingly, an indictment against the defendant under the Criminal Code (WA), charging him with an offence committed at the base, did not disclose an offence under the laws of Western Australia.
The problems raised by these decisions were met by the enactment of the Commonwealth Places (Application of Laws) Act 1970 Cth ("the Application of Laws Act"). Section 3 defines "Commonwealth place" to mean:
a place (not being the seat of government) with respect to which the Parliament, by virtue of s. 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order and good government of the Commonwealth.
Section 4 of the Application of Laws Act sets out a formula for the operation of State laws in Commonwealth places. For present purposes it is enough to mention only s. 4(1) which reads:
The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. Section 4 applies only to the laws of a State; it has nothing to say as to the laws of a territory.
The defendant's argument has the virtue of succinctness. It is that s. 52(i) of the Constitution grants exclusive power to the Parliament to legislate with respect to Commonwealth places. The Application of Laws Act does not apply to the Territory. The only effective legislation with respect to Commonwealth places in the Territory can be legislation which has been enacted by the Parliament. Therefore the Traffic Act (NT) and regulations made thereunder can have no application to the R.A.A.F. Base, which is a Commonwealth place.
The complainant's answer can likewise be stated succinctly although it was the subject of considerable elaboration. Put shortly it is that s. 52(i) has no application to places in the Territory acquired by the Commonwealth for public purposes and that, if it does have application, the Commonwealth has empowered the Legislative Assembly of the Territory to legislate for such places, subject only to any inconsistent laws of the Parliament. And there are no inconsistent laws.
The complainant's submissions relied upon the reasoning which Muirhead J. found persuasive in Pryce v King [36] . In that case the defendant was charged with offences under the Traffic Act (NT) in relation to the driving of a vehicle on a public roadway at Darwin Airport, land which was vested in the Commonwealth. Muirhead J. distinguished Worthing v Rowell on the ground that s. 52(i) did not apply to land within a territory and because the Traffic Act was an exercise of the plenary power granted by the Commonwealth to the Territory Government under the Self-Government Act, pursuant to s. 122 of the Constitution.
The R.A.A.F. Base is unquestionably a place which was acquired by the Commonwealth for a public purpose, namely, defence. However, the complainant submitted that, as a matter of construction, the power conferred by s. 52(i) applies only to places in a State and not to places in a territory. This argument had the support of the Commonwealth and the Australian Capital Territory, both of which were interveners. The submission contended that an examination of the Convention Debates shows clearly that s. 52(i) was intended to have operation in the States only.
Reference may be made to the Convention Debates in order to identify the contemporary meaning of language used in s. 52(i), and the subject to which that language was directed [37] . There is no doubt that in their consideration of what ultimately became s. 52(i) the framers of the Constitution had in mind Art. 1, s. 8 of the Constitution of the United States, which reads:
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. (Emphasis added.) 1. Cole v Whitfield (1988), 165 C.L.R. 360, at p. 385; New South Wales v The Commonwealth (the Incorporation Case) (1990), 169 C.L.R. 482, at p. 501.
The initial draft of cl. 53(2) of the Australian Constitution, which became s. 52(i), reflected closely its American counterpart. It gave to the Parliament exclusive power to make laws 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. (Emphasis added.) In this form cl. 53(2) was adopted at the National Australasian Convention of 1891 in Sydney and appeared in the draft Bill of that year.
However, at the Convention Debates of 1898 in Melbourne it was agreed to omit "with the consent of the State in which such places are situate". A proposal to omit the words "by the surrender of any State and the acceptance of the Commonwealth" was discussed but then withdrawn [38] . The draft Bill proposed at the end of the Melbourne Convention was in the form in which s. 52(i) appears in the Constitution, that is, with no reference to Commonwealth places in States.
The drafting history of the provision is too inconclusive to support the complainant's contention that s. 52(i) was to be limited to Commonwealth places in States only. If anything, the omission agreed to in 1898 strengthens the argument that s. 52 is not confined to places within the States but rather confers an exclusive power on the Parliament.
The complainant relied on Reynolds v The People [39] which held that Art. 1, s. 8 of the Constitution of the United States had no application to a federal military reservation within Colorado Territory because the Territory was an emanation of Federal Power. But it must be kept in mind that Art. 1, s. 8 gave Congress exclusive legislative power over all places purchased by "the consent of the State" in which it was situated. The deliberate omission of any reference to "the consent of the State" in the Australian provision renders the U.S. case of no persuasive value in the present context.
Confirmation that s. 52(i) is not confined to places within the States may be found in s. 125 of the Constitution. That section, which is part of Ch. VII Miscellaneous, provides that the seat of Government of the Commonwealth "shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth". Speaking of that section in Paterson v O'Brien [40] , the Court said:
So far as the Australian Capital Territory is concerned, s. 125 contemplated that such a territory, vested in the Commonwealth by surrender or acquisition, should be geographically in New South Wales. Thus it was contemplated that in due course the State of New South Wales should surrender part of its territory to the Commonwealth to form a Commonwealth Territory, wherein the seat of Government of the Commonwealth would be sited. 1. (1978) 138 C.L.R. 276, at p. 280.
Plainly s. 52(i), so far as it confers exclusive power on the Parliament in regard to the seat of government, must be taken as referring to a place in a territory, indeed only in a territory. It follows that in a paragraph which deals both with the seat of government and places acquired by the Commonwealth, there is no good reason for confining "places" to places in a State.
The complainant further submitted that the only purpose of s. 52(i) is to provide the Commonwealth with exclusive legislative power over places it may acquire for public purposes and to ensure that the Commonwealth is free from State interference in those places. And, the submission continued, the Commonwealth already has exclusive legislative power over a territory by reason of s. 122 of the Constitution. As the interests of the Commonwealth are adequately protected by the overriding power in s. 122, it does not need to rely upon s. 52(i) in the present case and that provision should not be read as requiring it to do so.
But the scope of s. 122 may be qualified by other provisions in the Constitution. In Capital Duplicators Pty Ltd v Australian Capital Territory [41] , Brennan, Deane and Toohey JJ. approached s. 122 on the footing expressed by Kitto J. in Lamshed v Lake [42] , namely:
the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories. Their Honours concluded [41] : It would therefore be erroneous to construe s. 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope. 1. (1992) 177 C.L.R. 248, at p. 272. 2. (1958) 99 C.L.R. 132, at p. 154. See also Spratt v Hermes (1965), 114 C.L.R. 226, at p. 242, per Barwick C.J. 3. (1992) 177 C.L.R. 248, at p. 272.
Capital Duplicators was concerned with the power of the Legislative Assembly of the Australian Capital Territory to impose duties of excise within the meaning of s. 90 of the Constitution. The Court held that the term "exclusive" in s. 90 makes the legislative power of the Parliament in respect of duties of customs and excise and of bounties exclusive of any other legislative power, including one created pursuant to s. 122 [43] . In the course of their judgment, Brennan, Deane and Toohey JJ. made reference to s. 52(i) so far as that provision conferred exclusive power on the Parliament to make laws with respect to "The seat of government of the Commonwealth". As their Honours observed [44] :
It would be surprising if laws made by an independent legislature for the seat of government of the Commonwealth, or executive action taken pursuant to those laws, could affect the performance of any function of the government of the Commonwealth, any facility used in the performance of such a function or any otherwise lawful provision - legislative or executive - which the organs of that government wished to make for the performance of any of its functions. 1. (1992) 177 C.L.R., at p. 277, per Brennan, Deane and Toohey JJ.; p. 290, per Gaudron J. 2. ibid., at p. 273.
In vesting in the Parliament exclusive power to make laws with respect to places acquired by the Commonwealth for public purposes, the Constitution evinces no reason why that power should be exclusive of the States but not exclusive of a territory to which the Commonwealth has entrusted legislative functions. Section 52(i) must be seen as conferring upon the Parliament, exclusive of any other law-making authority, the power to make laws relating to places acquired by the Commonwealth for public purposes.
To resolve questions of construction and purpose in this way does not dispose of the complainant's case. His argument takes the further step that, in any event, the Commonwealth has empowered the Legislative Assembly of the Territory, with the assent required by the Self-Government Act, to make laws relating to Commonwealth places, subject to any overriding laws of the Parliament.
Section 6 of the Self-Government Act empowers the Legislative Assembly, with the assent of the Administrator or the Governor-General, to make laws "for the peace, order and good government of the Territory". There is a power of disallowance in the Governor-General (s. 9(1)).
In exercising its legislative function, the Legislative Assembly is not acting as a delegate of the Commonwealth. This is in contrast to the capacity of the Parliament to confer upon the Executive a power to legislate upon some matter within the legislative power of the Parliament [45] . What was said by Brennan, Deane and Toohey JJ. in Capital Duplicators [46] in relation to the Australian Capital Territory applies equally here, namely, that the power to make laws for the peace, order and good government of the Territory is a plenary power and that the Parliament intended the Legislative Assembly to have plenary power, subject to the Constitution. Indeed, speaking of s. 6 of the Self-Government Act some ten years earlier, Wilson J. said [47] :
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. The Legislative Assembly exercises, not the Parliament's powers, but its own. Once that is understood, many of the arguments relied upon by the complainant and the interveners fall away. 1. See Victorian Stevedoring & General Contracting Co. Pty Ltd v Dignan (1931), 46 C.L.R. 73. 2. (1992) 177 C.L.R., at p. 281. 3. Reg. v Toohey; Ex parte Northern Land Council (1981), 151 C.L.R. 170, at p. 279.
The complainant contends that, relevantly, s. 52(i) and s. 122 of the Constitution are in competition. The argument is that when the Commonwealth acquired the Northern Territory in 1911, the Parliament was empowered by s. 122 to make laws for the government of that territory, a power which is not expressed to be subject to the Constitution and which does not depend on s. 52(i), so far as places acquired by the Commonwealth are concerned. It was therefore competent for the Parliament, so the argument runs, to empower the Legislative Assembly of the Territory to make laws having operation in a place acquired by the Commonwealth.
In Teori Tau v The Commonwealth [48] the Court spoke of the source of power in s. 122 as "general and unqualified" and the grant of legislative power by that section as "plenary in quality". But, as has been said earlier in this judgment, the scope of s. 122 may be qualified by other provisions in the Constitution. While the Commonwealth may conceivably delegate the power to legislate in respect of places acquired by it, there has been no delegation in the present case. The Parliament has conferred on the Territory plenary powers which, like the powers of the States, are subject to the Constitution. Being subject to the Constitution, they are subject to s. 52(i), that is, to the exclusive power of the Parliament to make laws with respect to places acquired by the Commonwealth for public purposes.
The R.A.A.F. Base, being a Commonwealth place, and the Application of Laws Act having no application to the Territory, the Legislative Assembly lacks power to make laws "with respect to" the base. It is a consequence of what has been said that Pryce v King should not be followed.
Since writing these reasons, I have read the judgment of Gaudron J. in which her Honour entertains serious doubt whether traffic laws are properly classified as laws "with respect to a place acquired by the Commonwealth for public purposes". For my part, it is enough to record that no argument to this effect was addressed to the Court nor was the authority of Reg. v Phillips challenged.
The facts and the questions reserved for the consideration of the Full Court are set out in the joint judgment of Mason C.J., Deane, Dawson and McHugh JJ. and in the judgments of Brennan J. and Toohey J. The questions require consideration of s. 52 of the Constitution which is as follows:
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to -
(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii) Matters relating to any department of the public service the control of which is by the Constitution transferred to the Executive Government of the Commonwealth;
(iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.
The first question that arises is whether s. 52(i) applies to places acquired by the Commonwealth for public purposes ("Commonwealth places") in the Northern Territory ("the Territory"). The terms of s. 52(i) are perfectly general and, as a matter of ordinary language, they clearly extend to places in the Territory. If s. 52(i) does not extend to them, it can only be because of an implication to that effect. And if s. 52 is approached on the basis that it is primarily a grant of legislative power, there is little scope for that or, indeed, any implication, for it is well settled that a grant of legislative power is to be construed according to its terms "without making implications or imposing limitations which are not found in the express words" [49] .
Three of the Justices who constituted the majority in Worthing v Rowell & Muston Pty Ltd [50] seem to have proceeded on the basis that s. 52 is first and foremost a grant of legislative power. Certainly that was the approach taken by Barwick C.J. who said that "in approaching the construction of this provision of the Constitution it is well to be reminded that it is a constitutional power to legislate which we have to interpret" [51] . The approach taken by Windeyer J. was more tentative. His Honour thought, at first, "that a law in respect of a place must be supported by some specific head of power to be found elsewhere in the Constitution and that all that the section does is to make exclusive the exercise of that power in respect of the place", but concluded that that was "probably too narrow a view". His conclusion was based on the consideration that, although laws with respect to many places, including post offices, quarantine stations and military barracks, can be enacted under s. 51, "there may be places which are validly acquired by the Commonwealth for some public purpose not obviously embraced by any specific head of legislative power or the incidental power" [52] . On the other hand, Kitto J., who was in the minority in that case, was clearly of the view that the primary function of the second part of s. 52(i) was not to add "to the constitutional scheme for the distribution of legislative powers" but to make explicit what would otherwise have been implied, namely, that "the Parliament of the Commonwealth, and it alone, is the intended repository of power to make any laws that are to be made on the subject of [places acquired by the Commonwealth for public purposes]" [53] .
There is, in my view, much to be said for approaching s. 52 on the basis that it is primarily concerned with the exclusivity of powers found elsewhere in the Constitution, not the conferral of power. And that is so even if there is also scope for its operation as an independent source of legislative power. On that approach, its primary purpose is to effect a prohibition in much the same way as s. 51(xxxi) which, although it grants legislative power, effects a prohibition on the acquisition of property other than on "just terms" [54] . And notwithstanding the decision in Worthing v Rowell & Muston Pty Ltd , there is much to be said for the view that, just as a law which affects property interests "as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest" [55] is not properly characterized as a law for the acquisition of property within the meaning of s. 51(xxxi), a general regulatory law of the same kind which only incidentally affects Commonwealth places is not properly characterized as a law with respect to those places. However, that is of no present relevance as there is no issue as to the correctness of the decision in Worthing v Rowell & Muston Pty Ltd and the later cases on s. 52 [56] . What is relevant is that if s. 52(i) is approached on the basis that it is not primarily a grant of legislative power, there may be more scope for implication than would otherwise be the case.
The argument that s. 52(i) does not apply to Commonwealth places in the Territory was made by reference to the amplitude of the Commonwealth's powers with respect to territories. In this regard, the argument relied on s. 111 of the Constitution which provides for the Commonwealth to have "exclusive jurisdiction" over territory surrendered by a State [57] and on s. 122 which confers legislative power on the Commonwealth for the government of internal and external territories [58] . It was put that these powers are such that there is no need for any other power with respect to Commonwealth places in the internal territories and, in the light of the "exclusive jurisdiction" conferred by s. 111 and in contradistinction to the position relating to Commonwealth places in a State, no need for the legislative power to be made exclusive. It was also put, by reference to the same considerations, that s. 52 is concerned only with the distribution of powers between the Commonwealth and the States and that "places" in s. 52(i), thus, means "places in a State".
There are two difficulties with the argument that s. 52(i) does not apply to places in the Territory. First, it is clear from s. 125 [59] that the seat of government must be "within territory granted to or acquired by the Commonwealth" (to which both ss. 111 and 122 apply) and yet the first part of s. 52(i) is expressly concerned with the power to legislate with respect to the seat of government.
The second difficulty with the argument is that s. 52(i) was modelled on Art. 1, s. 8, cl. 17 of the Constitution of the United States of America [60] which, because of the status of the federating states as sovereign independent states, was concerned to deal with the position of places purchased in those states [61] . Indeed, the earlier draft of what is now s. 52(i) closely followed the wording of Art. 1, s. 8, cl. 17 and was limited to places in the States [62] . Whatever the reason which led to the final formulation of s. 52(i), the deletion from the earlier draft of words which would have confined its operation to places in a State presents a formidable, if not insuperable, barrier to the implication of an exception to the same effect. In this regard, it is sufficient to note the rule that a term cannot be implied in a contract if it appears from the contract that the parties adverted to the point and deliberately refrained from dealing with it [63] .
By far the greatest difficulty with the argument that s. 52(i) does not apply to places in the Territory is that an implication is not to be made lightly and, certainly, not in disregard of the language of the Constitution. And that is so even if s. 52(i) is approached on the basis that it is not primarily a grant of legislative power.
So far as the issue in this case is concerned, there are two ways in which an implication might be read into s. 52(i). The first is to read "exclusive" as though it were "exclusive of the States but not the territories". The second is to read "places acquired" as "places acquired in a State". In my view, both approaches are inconsistent with the language of the Constitution.
It is convenient to consider the meaning of exclusive in s. 52 by reference to the meaning of the same word in s. 90. By that latter provision, the legislative power to impose duties of customs and excise and to grant bounties is made exclusive to the Commonwealth. It was held in Capital Duplicators Pty Ltd v Australian Capital Territory [64] that "exclusive" in s. 90 is not to be read as "exclusive of the States" but as "exclusive of the States and the territories" or, more accurately, that s. 90 is to be read according to its terms. The meaning of exclusive in s. 90 necessarily bears on the meaning of s. 52, not only because the same word is used in both provisions but because s. 52 and s. 90 overlap. That is because s. 52(iii) is concerned with "[o]ther matters declared by [the] Constitution to be within the exclusive power of the Parliament" which necessarily includes the imposition of duties of customs and excise and the granting of bounties.
It is rare enough for the same word to be construed differently in the one document. It is rarer still for the same word to mean different things depending on whether it is read in conjunction with one rather than another part of the very provision in which it appears. Yet that is what is involved if "exclusive" is read as "exclusive of the States" in s. 52(i) for, consistent with the decision in Capital Duplicators, it must mean "exclusive of the States and the territories" when read with s. 52(iii), at least in its application to duties of customs and excise and the grant of bounties.
There is another reason for not reading exclusive in s. 52(i) as meaning "exclusive of the States but not the territories". In ordinary usage, "exclusive" is a word the precise content of which depends on the specification of those to whom exclusivity is to attach or those who are to be excluded. Of course, its content may sometimes depend on the specification of both. But whatever method is used, the word "exclusive" is a word that calls out for specification. Exclusive to whom? Exclusive of whom? It is not a word the content of which is ordinarily left to speculation or, even, implication. Nor is it left to implication in s. 52. The section specifies to whom the power is exclusive, namely, the Parliament of the Commonwealth. Given that specification, to read "exclusive" as "exclusive of the States and not of the territories" is to give s. 52 a new and different meaning, not merely to imply an exception. That cannot be done.
The difficulties associated with reading the phrase "all places acquired by the Commonwealth for public purposes" as though it were confined to places in the States are as great, in my view, as reading "exclusive" to mean "exclusive of the States but not the territories". First, there is the difficulty to which I have already referred, namely, the difficulty of making an implication to the same effect as an earlier draft which, for whatever reason, did not become the final constitutional provision. And of greater significance, is the difficulty involved in implying a limitation or exception when the expression used is "all places acquired by the Commonwealth", not merely "places acquired by the Commonwealth". The adjective "all" when used in association with the completely general expression, "places acquired by the Commonwealth", signifies that there is to be no exception whatsoever.
There is, in my view, another and more fundamental reason why "exclusive" in s. 52(i) cannot be read as "exclusive of the States but not the territories" and why "places acquired by the Commonwealth" cannot be read as "places acquired in a State by the Commonwealth". It is this: although there are differences between a territory and a State and, although the power to legislate for the government of a territory conferred by s. 122 of the Constitution is different from the power to legislate with respect to identified topics conferred by s. 51, the internal territories are part of the Commonwealth of Australia and Australians resident in those territories are part of its body politic. Whatever be the differences that the Constitution dictates for the territories and for territorians, there is, in my view, no basis for implications which exacerbate or add to those differences. After all, and as Kitto J. said in Lamshed v Lake [65] , it is necessary to adopt "an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories".
In my view, s. 52(i) of the Constitution applies to Commonwealth places in the Northern Territory. It is thus necessary to consider the second of the questions reserved which, in effect, asks whether the R.A.A.F. Base at Darwin is a Commonwealth place. Given the manner in which the Commonwealth came to acquire the Base, as set out in the judgment of Toohey J., and given the decisions in Worthing v Rowell & Muston Pty Ltd , which concerned the Air Force Base at Richmond in New South Wales, and Reg. v Phillips [66] , which concerned the Pearce Air Force Base in Western Australia, there can be no doubt that it is a Commonwealth place.
The third of the questions reserved for the consideration of the Full Court asks, in effect, if the Traffic Act 1987 (NT) and the regulations made thereunder ("the traffic laws") apply on the R.A.A.F. Base at Darwin. I agree with Toohey J., essentially for the reasons that his Honour gives, that they do not. However, that agreement flows, in large part, from the fact that I am constrained by the authority of Reg. v Phillips which decided that s. 52(i) precluded the operation of the Criminal Code Act 1913 (WA) ("the Code") within the Pearce Air Force Base. The traffic laws, like the Code, apply generally to regulate conduct which must be regulated in the common interest. As I earlier indicated, I think there is good reason to approach s. 52 in much the same way as s. 51(xxxi), particularly when it comes to the characterization of a law which is said to infringe its prohibition, and, were the matter free of authority, I would entertain serious doubt whether the traffic laws are properly classified as laws "with respect to a place acquired by the Commonwealth for public purposes".
Svikart
Stewart