Worthing v Roche Bros - [1970] HCA 19 - HCA 1970 case summary — Zoe

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Worthing v Roche Bros

[1970] HCA 19

High Court of Australia|1970-06-26|Before: Walsh JJ

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Court

High Court of Australia

Decision date

1970-06-26

Before

Walsh JJ

Source

Original judgment source is linked above.

Judgment (115 paragraphs)

[1]

These proceedings came before the High Court in accordance with the provisions of the federal Judiciary Act, ss. 40A, 41. The question on account of which this part of the cause was removed into this Court is regarded as involved in the fifth plea. It is a question as to the limits of the power of the federal Parliament to legislate "with respect to" the subject comprehended by the words "all places acquired by the Commonwealth for public purposes" in s. 52 of the Constitution, on the one hand, and the power of the Parliament of New South Wales under which it enacted the Scaffolding and Lifts Act, 1912 N.S.W., by which the making of regs. 73 (3) and 73 (8) was authorized, on the other hand. The initial part of each regulation is the same. It is as follows:

[2]

Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work. By s. 3 of the Act "Building work" means work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning or demolishing which, when done in relation to a building or structure is done at or adjacent to the site of the building or structure and which, when done in relation to a ship is done on or adjacent to a ship in dock or on slips. Regulation 73 (3) requires that any person on whom it is binding shall provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet; and sub-par. (8) requires that such person shall effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 5 feet deep.

[9]

Under s. 122 of the Constitution the Parliament may make laws for the government of any territory surrendered by any State and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit; and under s. 52 of the Constitution 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 [1] the seat of government of the Commonwealth and all places acquired by the Commonwealth for public purposes. In my opinion, the words "places" acquired by the Commonwealth in s. 52 do not apply to lands acquired as property under the Lands Acquisition Act; they refer to "places" acquired in the sense of s. 122, any territories acquired in a political sense. If this opinion is correct the fifth plea, which is of course dependent on s. 52, affords no answer to the fourth and fifth counts. The view of Higgins J. is, in my opinion, different from that of Isaacs J. I refer to the passage [2] beginning: "But as the land" and ending "It shows that the proprietorship and the sovereignty were intended to go together in this respect". (I think that the word "sovereignty" here does not mean total sovereignty.) I also refer to the passage [1] beginning: "The Constitution suo vigore passes instanter" and ending "The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title". Isaacs J. said [2] , "but the Constitution itself, once that proprietorship passes, affixes a necessary legal consequence by s. 52 (i.)". It is worthy of notice that the paraphrase of s. 52 (i.), which Isaacs J. made is in these words [3] : It enacts that the Commonwealth Parliament shall have exclusive power to legislate for "the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes". The words of s. 122 of the Constitution are: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. (The italics are mine.) 1. (1923) 33 C.L.R., at pp. 59, 60. 2. (1923) 33 C.L.R., at pp. 59, 60. 3. (1923) 33 C.L.R., at p. 46. 4. (1923) 33 C.L.R., at p. 47. 5. (1923) 33 C.L.R., at p. 53. 6. (1923) 33 C.L.R., at p. 46.

[21]

For the carrying out of this scheme two provisions needed to be made and they are found in s. 51 and s. 52 respectively, the one setting out the matters upon which the Parliament of the Commonwealth has non-exclusive power to make laws, the Parliaments of the States retaining their pre-existing powers but Commonwealth laws on those matters prevailing by force of s. 109 over inconsistent State laws, and the other drawing together the matters upon which power is vested in the Parliament of the Commonwealth and denied to the Parliaments of the States. I use the expression "drawing together" because they are all, I think, matters upon which, by reason of other provisions scattered through the Constitution, the Parliament of the Commonwealth would have power, and by necessary implication exclusive power, even if there were no s. 52. The purpose of that section, as it seems to me, is to complement s. 51 so that standing in apposition to one another they will cover the range of Commonwealth legislative power but the essentially exclusive character of the Commonwealth power over some matters within the range shall be made explicit. This may be demonstrated by taking the paragraphs of s. 52 in reverse order. The last paragraph merely repeats by reference such other provisions of the Constitution as give the Commonwealth Parliament exclusive power over matters not mentioned in the first or second paragraph. The second paragraph comprises matters relating to departments of the public service which are transferred to the Commonwealth under s. 69. It seems safe to say first, that on such matters full powers to make laws are already vested in the Parliament of the Commonwealth under s. 51 (v.), (vi.), (vii.) and (ix.); and, secondly, that by declaring those powers to belong exclusively to the Parliament of the Commonwealth s. 52 (ii.) does no more than make explicit what would otherwise be implicit. Then in par. (i.), the first limb, as I read it, merely includes in the list the power which the opening words of s. 125 confers, and of course confers exclusively, upon the Commonwealth Parliament. These considerations show, I think, that it is a mistake to approach the interpretation of the second limb of par. (i.) of s. 52 with an assumption or expectation that either in granting powers to the Commonwealth or in making them exclusive the section intends an addition to the constitutional scheme for the distribution of legislative powers. Its utility is obvious, and in view of the foregoing I see no great force in the objection that the interpretation I place upon par. (i.) treats it as adding little or nothing to what is found expressed or implied elsewhere in the Constitution. Accordingly it seems to me that the second limb fits naturally into the thinking of the section as a whole if it is understood as simply accepting and making explicit what in the nature of things seems obvious, namely that since acquisitions of land by the Commonwealth, whether under s. 51 (xxxi.) or under s. 85, are necessarily for public purposes, purposes of the government of the Commonwealth or purposes authorized by valid laws of the Commonwealth, 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 such lands.

[22]

Consistently with the relation between s. 51 and s. 52 which I have indicated above, s. 52 follows the example of s. 51 in describing the powers it intends the Parliament to possess as powers to make laws for the peace, order and good government of the Commonwealth "with respect to" the topics which it enumerates. The meaning of this expression in s. 51 has been expounded often in this Court. It refers to such a direct and substantial connexion between a law and a specified topic that the law is in point of character a law on that topic. Its character is determined by its legal operation, its effect "in the way of changing or creating or destroying duties or rights or powers", to use the words of Latham C.J. in South Australia v. The Commonwealth [1] . To justify giving the expression as used in s. 52 a meaning different from that which it has in s. 51 would surely be too formidable a task. Accordingly, to support an enactment of the federal Parliament as being authorized by the first limb of s. 52 (i.) it is necessary, in my opinion, to find, upon consideration of what the enactment does, that it has the character of a law on the topic of the seat of government of the Commonwealth; not, I think, of a law for the government of the Territory in which the seat of government is situated - for that it is necessary to go to s. 122 - but on the topic of the location of the settled centre of the government of the Commonwealth. And by the same token, it seems to me that to support a law of the Commonwealth as being within the authority of the second limb of s. 52 (i.) it is necessary to find that the law takes as a specific subject matter a place or places acquired by the Commonwealth for public purposes, e.g. an airport acquired by the Commonwealth or such airports generally. (To give exclusive power to make laws with respect to "all places" of a given description seems clearly enough to subject every such place, separately as well as together with all other such places, to the exclusive legislative power.)

[33]

In Australian National Airways Pty. Ltd. v. The Commonwealth [1] , Dixon J. said that, in so far as the Airlines Act applied to the seat of government, it did so by virtue of s. 52 (i.) rather than s. 122. These observations reveal an opinion that the generality of laws made for the government of the seat of government, including laws making provision for courts having jurisdiction therein, are made under s. 52. Similarly in Davies v. Ryan [2] Evatt J. considered that the jurisdiction of the High Court derived from the Judiciary Act, s. 34A, to hear an appeal from the judgment of the court of the territory for the seat of government, might be ultimately referable to s. 52. There can be no doubt that the observations of these two learned judges indicate a view that s. 52 does confer power upon the Parliament to make general laws with respect to the seat of government of the Commonwealth. It has been suggested that the seat of government of the Commonwealth is not a place, but the terms of s. 125 leave me in no doubt that it is. It is within a territory; it is vested in and belonging to the Commonwealth - i.e. if the place determined by Parliament within the territory should be owned otherwise than by the Commonwealth, it becomes the property of the Commonwealth by force of s. 125 itself; it must be in New South Wales and it must be not less than 100 miles from Sydney. I do not see how these requirements can apply to anything which is not a place. There is no doubt that in the United States of America it is a place - a defined area of land - which became the seat of government of the United States. See art. I, ss. 8 and 17 of the Constitution of the United States. In my opinion the Australian Constitution likewise contemplated that Parliament should determine that a place is to be the seat of government and s. 52 (i.) is a grant of power to make laws with respect to that place. This latter power is a power separate and distinct from the power to make laws for a larger area - the Australian Capital Territory - under s. 122 of the Constitution. The acknowledged existence of the full power of Parliament to make laws for the larger area has, it seems, made it unnecessary to define the limits of the power conferred by s. 52 (i.) to make laws for the seat of government of the Commonwealth. See Spratt v. Hermes [3] . In the case just cited two members of the Court did, however, express opinions that the legislative power conferred upon the Parliament by s. 52 (i.) is a restricted power. Thus Kitto J. said [1] :

[34]

By s. 52 (i.) the Parliament is given exclusive power to legislate for the peace, order and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes. The power under the first limb of s. 52 (i.) extends only, I think, to the making of laws on the subject of the seat of government as a specific and separate topic of legislation to be distinguished from more general topics which may affect a place in which the seat of government is or is to be - just as the second limb extends only, I should suppose, to laws on the specific subject of places fulfilling the given description. It is the seat of government as such, and places acquired, etc., as such, which I understand to be referred to in s. 52 (i.). Taylor J. said [2] : In the second place I do not understand s. 52 (i.) as a provision intended to invest the Parliament of the Commonwealth with legislative authority to make laws for the general government of such territory as is found to comprise the seat of government, or, for that matter, of "all places acquired by the Commonwealth for public purposes". On the contrary it presents itself to me as a very special power to make laws "for the peace, order, and good government of the Commonwealth" with respect to specified subject matters, i.e. the seat of government of the Commonwealth and "all places acquired by the Commonwealth for public purposes". It is not a power to make general laws irrespective of their subject matter having an operation within the seat of government and such other places but a power to make laws having as the subject matter the seat of government or such other places. As such it authorizes legislation to establish the seat of government and such other laws as can fairly be said to be with respect to that subject matter. The contrary conclusion would mean that whenever the Commonwealth acquired a parcel of land for public purposes it would thereby acquire an exclusive legislative power to make general laws for the government of such places (cf. R. v. Bamford [3] ) but a comparison of the legislative form of s. 51 with that of s. 52 strongly militates against such a conclusion. 1. (1945) 71 C.L.R. 29, at p. 83. 2. [1934] A.L.R. 98. 3. (1965) 114 C.L.R., at p. 271. 4. (1965) 114 C.L.R., at p. 258. 5. (1965) 114 C.L.R., at pp. 262, 263. 6. (1901) 1 S.R. (N.S.W.) 337.

[38]

The question in R. v. Bamford [2] was whether, the post office at Armidale in New South Wales having been transferred to the Commonwealth by virtue of s. 69 of the Constitution and a proclamation thereunder, a person could nevertheless be proceeded against for theft thereon by virtue of s. 69 of the Postage Act N.S.W.. By a majority the court held that the person was liable to be indicted for the offence under the State Act and tried before a State court. The majority rejected the argument that the State law ceased to be in force in the post office upon its being taken over by the Commonwealth. It did so, however, relying upon ss. 107 and 108 of the Constitution to preserve the operation of existing laws while affirming that, in the future, the Parliament of the State could, because of s. 52, do no more than alter or repeal the State laws applying to the post office at the time of the transfer. Stephen J. dissented, holding that the Armidale post office was "no longer within the territory of New South Wales or subject to its legislature". The acceptance of the reasons of the majority or of Stephen J. would involve the consequence that, in this case, the regulations under the Scaffolding and Lifts Act, 1912 N.S.W., relied upon by the plaintiff had no application at the Richmond Aerodrome for all the reasoning accorded to the Parliament of the Commonwealth the exclusive power to make general laws having application in the post office. In Wollaston's Case [4] the decision was no more than that a customs house vested in the Commonwealth under s. 85 of the Constitution did not, upon such vesting, cease to be in Victoria, with the consequence that salary earned therein was not earned "in Victoria". This decision differs from the view of Stephen J. in R. v. Bamford [2] . In Kingsford Smith Air Services Ltd. v. Garrisson [3] it was decided that the Metropolitan District Court had jurisdiction to hear an action for damages for negligence in the management and control of an aeroplane at the Kingsford Smith Aerodrome at Mascot which had been acquired by the Commonwealth under s. 51 (xxxi.) and the High Court refused to grant an order nisi for prohibition. In The Commonwealth v. New South Wales [1] , Isaacs and Higgins JJ., expressed conflicting views upon the construction of s. 52. Isaacs J. said as to lands transferred from New South Wales to the Commonwealth by virtue of s. 85 of the Constitution [1] :

[47]

that s. 52 (i.) confers general power on the Commonwealth to legislate with respect to places acquired for public purposes, but that the general operation of State law is not thereby excluded. The basis of this view is that State laws only infringe the exclusive Commonwealth powers under s. 52 (i.) if they are laws with respect to places acquired by the Commonwealth for public purposes. A State law of general application throughout the State including the federal enclave is not a law with respect to places acquired by the Commonwealth for public purposes merely because it extends to such places. It will intrude upon the exclusive Commonwealth power only if it is shown that the State law is directed specifically to places acquired by the Commonwealth. It seems to me, with great respect to the learned author to whose discussion I am most indebted, that the construction which commends itself to him departs from the fundamental basis of s. 52, i.e. that it is a grant of legislative power for the Commonwealth, and the limits of that grant measure the denial of power to the Parliaments of the State. If, therefore, s. 52, in conferring power to make laws "with respect to" places, does confer a power upon the Parliament of the Commonwealth to make any law to operate in such places, it follows that, subject to s. 108, no power remains in the Parliament of the State to make any law to operate in such places. The operation of all State laws in the seat of government and in all other places referred to in s. 52 (i.) is, therefore, completely excluded. It seems to me that a law for the government of a place is a law with respect to the place even if it be a law for the government of other places as well. The critical question, as I see it, is whether s. 52 supports the operation of a general law in the places mentioned therein. I think it does. It follows that, save by virtue of s. 108 of the Constitution, laws of New South Wales made after the acquisition by the Commonwealth of a place in New South Wales have, of their own force, no operation in that place. This is the established doctrine in the United States of America. No question under s. 108 arises here. 1. (1901) 1 S.R. (N.S.W.) 337. 2. (1923) 33 C.L.R. 1. 3. (1901) 1 S.R. (N.S.W.) 337.

[64]

So much for the seat of government. As to the related words "all places acquired by the Commonwealth for public purposes". As I understand it, "places" here means fixed localities. The proposition that motor vehicles or boats could be included is, I consider, far-fetched and quite mistaken. Whether or not a "place" must be part of the earth's surface together with any structures thereon, is an unnecessary question for the decision of the present case. If I had to answer it, I would be inclined to think that an upper storey of a building held by a strata title could be a place acquired for public purposes. But I doubt the proposition that obtaining a leasehold interest or a temporary licence to occupy a place would amount to acquisition in the relevant sense. Certainly I would not agree that the hiring of a hall for use as a polling booth on election day - as was mentioned in argument - or the use of a city park for an afternoon's military ceremonial would amount to an acquisition of a place by the Commonwealth for the purposes of s. 52. In short, as I understand s. 52, "places acquired by the Commonwealth" means places which upon acquisition the Commonwealth holds by virtue of a proprietary right. Such places are quite different from territories surrendered to and accepted by the Commonwealth under s. 111 of the Constitution or otherwise acquired, within the meaning of s. 122. The difference is the difference between political dominion and a proprietary interest. There is no doubt a theoretical difficulty in accommodating the acquisition and ownership by the Commonwealth of a parcel of land within a State with fundamental feudal concepts of landholding. When the Commonwealth acquires land within a State it becomes in a sense a tenant in fee simple. But the theoretical anomaly disappears if the fee be regarded as in reality merely a description of the nature and quantum of a proprietary interest of the Crown in the land, not a feudal estate: see The Commonwealth v. Anderson [1] , and The Commonwealth v. Rhind [2] .

[66]

The next phrase is "public purposes". The place must have been "acquired by the Commonwealth for public purposes". These words express a large and general idea. They overcome a difficulty of the American prototype of s. 52. It, cl. 17 of s. 8 of art. I of the American Constitution, speaks of "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". Lands for forests, parks, ranges and wildlife sanctuaries are not covered. But that does not mean that the United States may not acquire property for other purposes than those enumerated. However, the acquisition of land by the United States under the American Constitution proceeds on a different basis from acquisitions by the Commonwealth under s. 52. As I understand it, the United States, as a national sovereignty, becomes possessed of land by virtue of cession from a sovereign State: see Collins v. Yosemite Park and Curry Co. [3] . This confers a political, as distinct from a merely proprietary, title. That is the result of the Constitution of the United States being in origin the outcome of agreement by peoples who were not then all subject to any one political tie. The colonies had all thrown off their allegiance to Britain. The Australian Constitution, on the other hand, gets its juristic force not as a compact, but from a statute of the Imperial Parliament. The Australian States, former colonies, never were and are not, in any true sense, sovereign. The acquisition by the Commonwealth of places in Australia as post offices, naval and military barracks, airfields, artillery ranges and rifle ranges, Commonwealth bank premises, meteorological stations or other such Commonwealth places does not mean that they cease to be in a political sense parts of the State within the geographical boundaries of which they lie. They are not like territories surrendered by a State according to s. 122. Places of the sort I have mentioned have sometimes been called enclaves. But the word begs the question. It is, in English, a late nineteenth-century neologism. Its ordinary meaning is, I take it, a district surrounded on all sides by a foreign State. The word first appears in the present context when Higgins J. said that places acquired by the Commonwealth are not enclaves.

[70]

The material before us does not shew how the Commonwealth acquired a title to the land forming the Richmond Air Base. For the resolution of the question we have to decide this does not matter. It must be taken that it was acquired in some way permitted by law. However, I should observe here that in the course of the argument it seemed at times to be supposed that the only ways by which the Commonwealth could acquire places are, as it was expressed, under s. 51 (xxxi.) or by s. 85. That, I think, is a misleading proposition. Doubtless many places were in the past acquired by the Commonwealth by virtue of s. 85; and the question we have to consider can arise in respect of such places. It is an ellipsis to speak of places as acquired under s. 51 (xxxi.), for it does not authorize acquisitions, only the making of laws for acquisitions. By virtue of it the Parliament has passed the Lands Acquisition Act, 1955-1966 Cth. Section 13 of that Act is expressed to enable the acquisition of land "for public purposes". That is the phrase used in s. 52. As used in the Act, it may be that "public purposes", at all events in relation to compulsory acquisitions, are confined to purposes in respect of which the Parliament has power to make laws: W. H. Blakeley & Co. Pty. Ltd. v. The Commonwealth [1] ; Jones v. The Commonwealth [2] . But s. 52 can, I think, operate in a wider field. It gives the Parliament a power to make laws with respect to all places that the Commonwealth has acquired for public purposes; and that I assume means acquired by any process known to the law for any public purpose. And public purposes are not necessarily purposes for which the Parliament can make laws. I can see no reason why the Commonwealth, or a Commonwealth statutory body on behalf of the Commonwealth, should not be able to accept a gift from a landowner by his deed or will of land for the purpose, say, of a public park, just as I suppose it could become by gift possessed of pictures or books for public use and enjoyment.

[75]

I reject the notion that acquisition by the Commonwealth creates a state of anarchy in or in relation to a place. Apart from the dissenting judgment of M. H. Stephen J. in R. v. Bamford [1] , there has not, so far as I am aware, been any strong support for this view. American decisions, even if they supported it - which I think they do not: see Stewart & Co. v. Sadrakula [3] - cannot be usefully invoked because of the essential distinction that I have mentioned, between a cession of political authority over a place, the idea that prevails in the United States and the acquisition of a proprietary interest in a place, the idea which prevails here and which is embodied in the Lands Acquisition Act. That does not mean that in litigation about the place the Commonwealth is not entitled to the rights and immunities of the Crown. It is (see The Commonwealth v. Rhind [4] ), but that does not bear directly on the question. The proposition that on the acquisition of a place by the Commonwealth existing laws are displaced would have remarkable consequences. This alone would make me think that it is not what the Constitution intends. That in a post office or on a rifle range murders, rapes, robberies and all manner of felonies, misdemeanours and indecencies can be committed with impunity and without interference by State police is an intolerable idea. That a person can make a contract by telephone from a post office and be free of the Statute of Frauds, or that land can be conveyed, or wills made, in any Commonwealth place, in some manners not in accordance with the law of the State where the place is, would be to me as alarming as surprising. Any number of illustrations could be added by way of emphasis. But alarm is needless. Section 108 keeps in force the law of a State "relating to any matter within the powers of the Parliament of the Commonwealth". Isaacs J. in The Commonwealth v. New South Wales [1] , after remarking that upon acquisition by the Commonwealth the legislative power of the Commonwealth Parliament becomes exclusive, said: "That does not set up a state of anarchy, for s. 108 of the Constitution applies to prevent that." In so far as s. 52 is the source of Commonwealth power which sustains a law with respect to a place, that power only arises with respect to the particular place upon its acquisition by the Commonwealth. Until then the exclusive power to make laws with respect to that place is not by s. 52 vested in the Commonwealth; and the powers otherwise existing of the State Parliament remained until then undisturbed. Section 107 provides for that. Then s. 108 comes into operation. Unless upon acquisition by the Commonwealth a place ceases to be for all purposes "in the State" - and that I think is not so - s. 108 ensures that all law in force with respect to the place at the time of acquisition continues in force until the Commonwealth Parliament expressly alters it or validly makes some inconsistent law.

[80]

The other view is that the only laws which can properly be described as having been made with respect to a Commonwealth place, or Commonwealth places, are laws made specifically for that place or those places. On that view any State law enacted expressly with respect to, say, existing post offices or rifle ranges within the State, would obviously be invalid: but a State law made in general terms, and thereby covering Commonwealth places along with all other places in the State, would not. This view has been put forward by commentators, notably by Dr. Anstey Wynes and Professor Zelman Cowen in works cited to us. A law with respect to a place or places acquired by the Commonwealth must, on that view, be expressly on the subject of the place or places, "as places" or "as such", so the argument ran. This, it was urged, accorded with dicta in Spratt v. Hermes [1] . But that case turned on very different considerations from this: and I am not persuaded that words used incidentally there can be invoked for the decision of this case. The construction of s. 52 proposed - namely that it excludes from the law-making power of the States only enactments specifically directed to Commonwealth places - would, if it be a tenable construction, have advantages and avoid some manifest inconveniences. It would prevent the oddities which would occur from a lack of uniformity in the operation of State laws in relation to Commonwealth places within a State resulting from different dates of their acquisition and varying provisions of the State statute book at those dates. Nevertheless, I find it hard to accommodate this view with the words of s. 52. And some arguments that we heard added to my difficulties. I cannot assent to the idea that a law with respect to the conduct of persons within a place, or transactions there, is not a law with respect to that place. I think too that some laws with respect to conduct outside a place, but done so as to affect that place or activities there, could be properly called laws with respect to the place. Moreover, I doubt whether a State Parliament can enter a legislative area from which it is excluded by the Constitution simply by casting its laws in general terms which embrace that area along with others.

[84]

The plaintiff brought an action in the Supreme Court claiming damages for personal injuries said to have been sustained whilst employed on certain building work. In one of the counts of his declaration he alleged that the defendants Roche Bros. had committed a breach of a regulation (reg. 73 made under the Scaffolding and Lifts Act, 1912-1960 N.S.W., and had thereby caused his injuries. To this the defendants by one of their pleas alleged that at the relevant time the plaintiff was working at the R.A.A.F. Air Base at Richmond. The plaintiff demurred to the plea and the question thus raised was whether, having regard to the terms of s. 52 (i.) of the Commonwealth Constitution, the regulation upon which the plaintiff relied was a valid State law, the Air Base being a "place acquired by the Commonwealth for public purposes". The demurrer came before the Court of Appeal and since an inter se question had thus arisen the cause was removed into this Court under s. 40A of the Judiciary Act 1903-1965 Cth. When the demurrer came on to be heard by us, leave was given to the parties to amend the pleadings and in the result there are now two counts, the fourth and fifth, each of which is based upon reg. 73, a provision which is designed to protect persons engaged in building operations against risk of injury. To the fifth count the defendants demurred and argument on that was deferred to some future date. To both these counts the defendants also pleaded. By their fourth plea they alleged that whatever building operations they were carrying out were being carried out by them as subcontractors. To this plea the plaintiff demurred and this raises the question whether on the true construction of reg. 73 it applies to a person who is carrying out building operations as a subcontractor. Argument on this point was also deferred. By their fifth plea the defendants alleged that the building work in the course of which the plaintiff was injured was being carried out on land owned by the Commonwealth and acquired by it for the purposes of an Air Force base prior to the coming into force of reg. 73. To this the plaintiff demurred and it is on the issue of law thus raised that we heard argument not only from the parties but also from counsel representing the Commonwealth and the States, other than Tasmania, which were granted leave to intervene.

[89]

If reg. 73 or the Act under which it was made can properly be described as a law with respect to places acquired by the Commonwealth for public purposes, it is not a law which could be validly enacted by the New South Wales legislature since the power to legislate conferred upon the Commonwealth Parliament by s. 52 (i.) is expressed to be an exclusive power. But the Commonwealth power under that section is, I think, limited to a power to make laws specifically directed to and concerned with such places and it is to that extent only that the legislative powers of the State are excluded by the section. This view of the extent of the Commonwealth's exclusive power to legislate under s. 52 (i.) was expressed by Kitto J. in Spratt v. Hermes [1] in a passage in his judgment with which I agree. His Honour said [2] : By s. 52 (i.) the Parliament is given exclusive power to legislate for the peace, order, and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes. The power under the first limb of s. 52 (i.) extends only, I think, to the making of laws on the subject of the seat of government as a specific and separate topic of legislation to be distinguished from more general topics which may affect a place in which the seat of government is or is to be - just as the second limb extends only, I should suppose, to laws on the specific subject of places fulfilling the given description. It is the seat of government as such, and places acquired, etc., as such, which I understand to be referred to in s. 52 (i.). If then the question is asked whether the Scaffolding and Lifts Act, 1912-1960 N.S.W. and reg. 73 are laws on the specific subject of places acquired by the Commonwealth for public purposes, I think the answer is that they are not. They lay down rules directed to securing the safety of persons employed in building operations in New South Wales. It is true that they operate throughout New South Wales but, in my opinion, it cannot be said that they trespass upon the legislative power which s. 52 (i.) confers upon the Commonwealth Parliament merely because they do so operate and there happen to be within the area to which they apply places which have become the property of the Commonwealth because they have been acquired by it for public purposes. They do not, in my opinion, fall within the description of laws on "the specific and separate topic", to adopt the phrase used by Kitto J., of places acquired by the Commonwealth for public purposes. I am of opinion, therefore, that the demurrer to the fifth plea should be upheld. 1. (1965) 114 C.L.R. 226. 2. (1965) 114 C.L.R., at p. 258. Walsh J.

[110]

Subject to any relevant limitation imposed by the Commonwealth Constitution and subject to the territorial limitations upon its legislative power, a State has a general power to make laws. If places acquired by the Commonwealth for public purposes were to be regarded as ceasing upon acquisition to be part of the territory of the State, then for that reason the State would lack power to make laws applying to them. But after consideration of the divergent views which have been expressed upon that question, I am of opinion that a place so acquired continues to be part of the territory of the State in which it is situated and is not excised from the State so as no longer to be for any purpose a part of it. The question of the State's legislative power with respect to any such place after its acquisition must therefore be determined by reference to the extent of the legislative power given by the Constitution to the Commonwealth Parliament with respect to it. Whether or not s. 52 (i.) confers an unlimited power to make laws concerning any act, transaction, activity or conduct within or connected with such a place it does confer in my opinion power to make a law regulating the manner in which building work shall be carried out therein. As I have said, it is my opinion that such a law must be regarded as a law with respect to that place. This carries with it a denial of power in the State to make such a law. A law which applies to and governs the carrying out of building work in such a place is in my opinion a law with respect to the place whether the enactment is limited so as to apply only in such places or has a general application to all places within the territorial boundaries of the State. Unless this be so, the granting of exclusive power to the Commonwealth Parliament appears to be deprived of any real significance. As I have said, a place acquired by the Commonwealth remains, in my opinion, part of the State in which it is situated. If the opinion just stated be not correct the State can make, after the acquisition of such a place, a new law of any kind whatsoever having an operation in that place and the only limitation imposed upon it by the existence of the exclusive power of the Commonwealth is that the State Parliament must not single out for separate attention the places, within its boundaries, to which that exclusive power relates. I do not think it is right to conclude that all that is achieved by the provision granting the exclusive power is a prohibition against the enactment by a State of special legislation dealing with the Commonwealth places which it is unwilling to apply generally to its territory. I think that the provision granting exclusive power has a wider meaning and effect than that, and is not so limited that it effects no exclusion of State power, unless the State enacts separate legislation to deal with those places.