Worthing v Roche Bros

This Act shall have effect in the metropolitan police district, and in such other areas as the Governor, by proclamation published in the Gazette, may direct. Such district and each such area is referred to in this Act as a district. By virtue of this section and executive action thereunder, the Act and regs. 73 (3) and 73 (8) operated in relation to work in progress, answering the definition of "building work" wherever in the State of New South Wales such work happened to be carried out.

The counts based on these regulations are the fourth and fifth. The fifth plea reads thus:

And for a fifth plea the defendants Roche Bros. as to the fourth and fifth counts, say that at all material times the land upon which the alleged building work was being carried out was the Royal Australian Air Force Base at Richmond in the State of New South Wales and was owned by and had been acquired by the Commonwealth of Australia for the purpose of a Royal Australian Air Force base prior to the coming into force in New South Wales of the regulations under the Scaffolding and Lifts Act, 1912, as amended, upon which the plaintiff sues.

Apart from s. 52 of the Constitution, the defendants Roche Bros. would have been bound by the regulations because they were (accepting the allegations in the fourth and fifth counts) carrying out "building work" within the meaning of the Scaffolding and Lifts Act, s. 3, and the regulations, in New South Wales.

In order to clarify the fifth plea, it seems to me to be necessary to attribute to the word "land" the constitutional significance of a "place" for the purposes of s. 52 of the Constitution, and to treat the "land" to which the plea refers as property acquired by the Commonwealth under the federal Lands Acquisition Act. The words public purposes in s. 52 extend to a "purpose in respect of which the Parliament has power to make laws", Constitution, s. 51 (xxxi.).

In The Commonwealth v. New South Wales [1] Higgins J. said:

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.

I think that it is implicit in what is stated by Isaacs J. that the words "all places acquired by the Commonwealth for public purposes" extend to land transferred by s. 85 of the Constitution to the Commonwealth and to land acquired by the Commonwealth under the Lands Acquisition Act. I would not take the view that Isaacs J. considered that s. 52 (i.) extended further than to empower the federal Parliament to make laws with respect to the subject matter which is included in this provision, within the federal system.

There is no basis for the view that acquisition of land under a law authorized by s. 51 (xxxi.) results in taking the land completely out of the jurisdiction of the State inside the boundaries of which the land is. In my opinion the land referred to in the fifth plea became on acquisition a place within the scope of the words "all places acquired by the Commonwealth for public purposes" and would retain that character as long as the Commonwealth should own it. A law enacted by a State legislature, which is not within the ambit of the power of the federal Parliament under s. 52 (i.) and is otherwise intra vires, would be binding according to its tenor within such places as the Commonwealth had acquired inside the limits of the State, in accordance with a law enacted under s. 51 (xxxi.) of the Constitution.

The point sought to be made by the pleas is not clear. In order to clarify it, it is necessary to read the word "land" as intended to mean "a place" within the scope of the words "all places acquired by the Commonwealth for public purposes" in s. 52 of the Constitution. Taking this to be what "land" means in the context of the plea, the submission made in support of it, was that the regulations did not validly apply in respect of the "building work" in question. The ground of the submission as I apprehended it was, that the regulations in question were - though in the generality of their application throughout the State applicable to "building work" being done on this land - invasive pro tanto of the exclusive power of the federal Parliament to make laws "with respect to" the subject matter "all places acquired by the Commonwealth for public purposes". In my opinion this submission is wholly untenable. I think that it is appropriate to cite observations made by Dixon C.J. in Pioneer Express Pty. Ltd. v. Hotchkiss [1] :

Then it was said that s. 12 as amended, or at all events s. 3 of Act No. 16 of 1956 (N.S.W.) making the amendment invaded the exclusive power conferred by s. 52 (i.). No more can be said about this argument than it simply is not so. Neither provision could have been enacted in relation to New South Wales by the federal Parliament in the exercise of the power given by s. 52. 1. (1958) 101 C.L.R. 536, at p. 549.

Neither reg. 73 (3) nor reg. 73 (8) is a provision which could have been enacted in relation to New South Wales by the federal Parliament in the exercise of the power given by s. 52. The purpose of reg. 73 is set forth by the words composing the heading of Pt V. The wording is "Safeguards and measures to be taken for securing the safety and health of persons engaged in building work". It is not enough to make either reg. 73 (3) or reg. 73 (8) a law with respect to given "places" in New South Wales that it could apply by virtue of its general application in relation to "building work" in any of those places. Latham C.J. expounded the words "with respect to" in Bank of New South Wales v. The Commonwealth [2] :

It is not enough that a law should refer to the subject matter or apply to the subject matter: for example, income tax laws apply to clergymen and to hotelkeepers as members of the public; but no one would describe an income tax law as being, for that reason, a law with respect to clergymen or hotelkeepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or to banking. It is clear from the provisions of reg. 73 that its subject matter is not "places" on which "building work" is being carried out. I think that the true subject matter of the regulation is the safety of persons engaged in "building work", wherever it is being carried on in New South Wales. In my opinion a law substantially in the terms of the regulation could not be enacted by the federal Parliament in the exercise of the power given by s. 52. 1. (1948) 76 C.L.R., at p. 186.

I would allow the plaintiff's demurrer to the fifth plea.

This demurrer, in an action begun in the Supreme Court of New South Wales and removed into this Court by the operation of s. 40A of the Judiciary Act 1903-1965 Cth, raises two questions of law. One is whether land acquired by the Commonwealth for the purposes of a base for the Royal Australian Air Force is within the category referred to in s. 52 (i.) of the Constitution by the description "places acquired by the Commonwealth for public purposes". The other question, arising if the first be answered in the affirmative, is whether, on the proper construction of s. 52 (i.), a place so acquired which is within the geographical boundaries of a State is beyond the application of any law thereafter made by the Parliament of the State for regulating the conduct of persons wherever they may be in the State. For reasons that will appear I am of opinion that the first question should be answered in the affirmative, and I turn at once to the second question.

The interpretation of s. 52 (i.) has been considered to a limited extent in earlier cases and has been the subject of some helpful academic writing such as the essay "Alsatias for Jack Sheppards? The Law in Federal Enclaves in Australia", which Professor Zelman Cowen included in his volume Sir John Latham and Other Papers (1965). Nothing useful would be achieved by going over the whole ground again here; and I must add that I do not find much assistance in the decisions on the comparable but different provisions of the Constitution of the United States. I indicated in Spratt v. Hermes [1] that I read the second limb of s. 52 (i.) as referring only to the making of laws on the specific subject of places fulfilling the given description. Further consideration has served only to confirm that view. I shall state my reasons as briefly as I can.

In the first place it seems to me impossible to construe the paragraph as referring to lands which the Commonwealth has acquired as territories over which it may exercise political dominion. The natural sense of the provision seems to me to show that the "places" to which it refers are lands in respect of which the Commonwealth has acquired proprietary rights under the laws of the State or Territory in which they are situated. The word "places" I take to be used instead of "lands" because the concept of a "place" is that of a location or site for a purpose - here, a site for the furtherance of public purposes of the Commonwealth.

It is, I think, important to consider s. 51 and s. 52 as together effectuating the general scheme for the distribution of powers as between Commonwealth and State Parliaments which ss. 107 and 108, despite their late position in the Constitution, may be said to introduce. The first provision of s. 108 continues in force every law in force in a colony at the time it became a State and relating to any matter within the powers of the Parliament of the Commonwealth. This it does subject to the Constitution, and accordingly any inconsistent laws of the Commonwealth will prevail by force of s. 109. Then s. 107 and the second provision of s. 108 address themselves to the powers of the State Parliaments to make future laws. The Parliament of a State retains every power that it had as the Parliament of the former colony, except such powers as the Constitution vests exclusively in the Parliament of the Commonwealth (s. 107); and in particular it retains powers of alteration and of repeal in respect of such of its pre-existing laws as are preserved in force (s. 108). The last-mentioned provision is expressly qualified so as to operate only until the Parliament of the Commonwealth makes provision in that behalf; and, as Quick and Garran suggested in their Annotated Constitution of the Commonwealth (1901), art. 449, p. 938, it seems clearly to be subject to an implied qualification so as not to authorize State laws upon matters declared to be within the exclusive power of the Commonwealth Parliament.

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.

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.)

I respectfully adopt the passage in the judgment of Taylor J. in Spratt v. Hermes [2] in which he said, referring to s. 52 (i.):

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 [1] ), but a comparison of the legislative form of s. 51 with that of s. 52 strongly militates against such a conclusion. If this be true, as I think it is, then since in s. 52 the grant of Commonwealth power and the denial of State power are correlative the conclusion must follow that the denial of State power is, and is only, a denial that the State power which s. 107 continues as at the establishment of the Commonwealth includes power to make a law operating so specifically in relation to any of the matters referred to in the section as to be a law "with respect to" that matter. 1. (1965) 114 C.L.R., at p. 263. 2. (1901) 1 S.R. (N.S.W.) 337.

The State law here in question is a regulation made under the authority of the Scaffolding and Lifts Act, 1912 N.S.W.. It is general in its terms, placing an obligation upon any person who, anywhere in New South Wales, carries out any building work. It makes no special provision in regard to any place acquired by the Commonwealth for public purposes. In my opinion it cannot be described as a law "with respect to places acquired by the Commonwealth for public purposes", and therefore its statutory authorization was not, by reason of s. 52 (i.), beyond the legislative power of the State of New South Wales.

This is an issue between a worker, Worthing, and his employer, the defendant Roche Bros., in an action brought by the worker which included counts against his employer for breach of statutory duty, viz. reg. 73 of the regulations made under the Scaffolding and Lifts Act, 1912 N.S.W., as amended.

51. 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 and for this purpose, without limiting the generality of the foregoing, he shall -

(3) 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.

To this count a fifth plea was made as follows: that at all material times the land upon which the alleged building work was being carried out was the Royal Australian Air Force Base at Richmond in the State of New South Wales and was owned by and had been acquired by the Commonwealth of Australia for the purpose of a Royal Australian Air Force base prior to the coming into force in New South Wales of the regulations under the Scaffolding and Lifts Act, 1912, as amended, upon which the plaintiff sues. To this plea the plaintiff demurred.

The point of difference is whether s. 52 of the Constitution of the Commonwealth of Australia prevents the regulations in question from applying to the building work being carried on by Roche Bros. upon the Richmond Aerodrome, being a place which had been acquired by the Commonwealth for public purposes before the making of the regulations.

Section 52 is a provision of the Constitution which has not been the subject of a great deal of judicial exposition. Primarily it is, of course, a grant of legislative power to the Parliament. It has, however, a secondary aspect; to the extent to which it grants legislative power to the Parliament, it denies legislative power to the Parliaments of the States. The denial is measured by the grant. Such cases as there are - like this one - have been concerned with the denial rather than with the grant, although Dixon J., as he then was, in Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. [1] , regarded laws such as the Seat of Government Acceptance Act 1909 Cth and the Seat of Government (Administration) Act 1910 Cth as laws made under s. 52 of the Constitution. His Honour prefaced his reference to these statutes by saying:

This case arises in the seat of government, and s. 52 provides that 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." His Honour also said: Section 122 is dealing, at least primarily, with Territories which do not form part of the Federal system The seat of government is an integral part of the federal system, and I see no reason for denying the application of s. 76 to laws made pursuant to s. 52 (1.). 1. (1929) 42 C.L.R. 582, at p. 585.

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] :

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.

I have touched upon the power of the Parliament under s. 52 (i.) to make laws with respect to the place which Parliament has determined to be the seat of government of the Commonwealth because it seems to me unmistakable that the power to make laws with respect to "all places acquired by the Commonwealth for public purposes" is a power of the same order.

The cases, other than those already referred to, touching upon the extent of the denial of State legislative power effected by s. 52 are The Commonwealth v. New South Wales [1] ; R. v. Bamford [2] ; Kingsford Smith Air Services Ltd. v. Garrisson [3] ; and Wollaston's Case [Re Income Tax Acts [No. 4]] [4] .

1. (1923) 33 C.L.R. 1. 2. (1901) 1 S.R. (N.S.W.) 337. 3. (1938) 55 W.N. (N.S.W.) 122. 4. (1902) 28 V.L.R. 357.

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] :

But as the land - not being in Commonwealth "territory" properly so called, that is, outside a State - remains in the State boundaries, it was necessary to provide that the governmental powers of the Commonwealth - exclusive in themselves - should, for the purpose for which the land was transferred, be entirely free from State jurisdiction. To this end s. 52 (i.) was shaped in the form in which it exists. 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". Even in America, it may be necessary to repeat, where no such explicit law exists, it is held that the Congress may validly legislate for the protection of its public lands, even within a State. As Brown J. said for the Court, in Camfield v. United States [2] , "a different rule would place the public domain of the United States completely at the mercy of State legislation". This was a decision in 1897, and the later Commonwealth Constitution has provided specifically, and in larger terms, for the federal power. The grant of exclusive power carries an inevitable inference with it. It shows that the proprietorship and the sovereignty were intended to go together in this respect. The view taken by Higgins J. was that s. 52 applied not to places such as post offices or court houses or aerodromes but to territories acquired in a political sense to which s. 122 applies. From this review it appears that the judicial observations upon s. 52 are both conflicting and inconclusive. 1. (1901) 1 S.R. (N.S.W.) 337. 2. (1902) 28 V.L.R. 357. 3. (1901) 1 S.R. (N.S.W.) 337. 4. (1938) 55 W.N. (N.S.W.) 122. 5. (1923) 33 C.L.R. 1. 6. (1923) 33 C.L.R., at p. 46. 7. (1897) 167 U.S. 518, at p. 526 [42 Law. Ed. 260, at pp. 262, 263].

Reference has already been made to the Constitution of the United States and here it is appropriate to set out the relevant provisions of the Constitution and the effect of the judgments of the Supreme Court thereon.

Article I. Section 8. 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.

Article IV. Section 3. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The legislative power of Congress over places acquired as described in art. I, s. 8 is exclusive and the legislative authority of the State where the place is is entirely ousted except to the extent that in the purchase there may have been a reservation for the retention in force of State laws applicable at the time of the purchase. No larger reservation is possible. The consequence of this doctrine has been the eventual passing in 1948 of an Assimilative Crimes Act to produce complete conformity with current State laws. See United States v. Sharpnack [1] . In the United States, therefore, State laws, such as the regulations here relied upon, could not apply in places purchased with the consent of the legislature of the State if made after the purchase. The exclusive power of Congress arising from the constitutional provisions has been regarded as self-evident. Thus in United States v. Sharpnack [1] Burton J., speaking for the majority, said: In the absence of restriction in the cessions of the respective enclaves to the United States, the power of Congress to exercise legislative jurisdiction over them is clearly stated in art. I par. 8, cl. 17, and art IV, par 3, cl. 2 of the Constitution. Then followed a history of the steps taken by Congress to apply the laws of the State, in which an enclave is situated, to the enclave itself. The principle adopted by Congress throughout has been conformity to local law and this culminated, so far as crimes committed in enclaves are concerned, with the Assimilative Crimes Act which made the laws of the State in which the enclave is situated, in force at the time of an act or omission, applicable to the act or omission. The validity of this law was upheld. 1. (1957) 355 U.S. 286; 2 Law. Ed. 2d 282. 2. (1957) 355 U.S. 286; 2 Law. Ed. 2d 282.

I turn now to the opinions of commentators. The view adopted by the majority in R. v. Bamford [2] , is the view which had already been stated by Quick and Garran in the Annotated Constitution of the Australian Commonwealth (1901), at pp. 659-660, although it may be that Quick subsequently changed his mind when writing Legislative Powers of the Commonwealth and the States of Australia (1919), at pp. 621-662. In Sir Harrison Moore's The Constitution of the Commonwealth of Australia, 2nd ed. (1910), at p. 289 , in a passage covering laws made under s. 52, the learned author says:

The question of the nature of the power thus granted to the Commonwealth Parliament is of great importance. In the first place, does it constitute the Parliament the sole authority competent to exercise legislative power for such places, and remove them from the jurisdiction of the States, except so far as the Constitution has elsewhere continued temporarily the State authority? In the United States, exclusive legislative power over a place imports exclusive executive and judicial power also - "territory so placed becomes as extraneous to the State as if it were held by a foreign government". Or is it merely a power to enact such special legislation in respect to such places as their particular circumstances may appear to the Commonwealth Parliament to require, leaving them otherwise under the general legislation and jurisdiction of the State? The question is posed but not answered. W. Anstey Wynes, in The Legislative, Executive and Judicial Powers in Australia, 2nd ed. (1956), at p. 163, suggests that the view of the majority in R. v. Bamford [1] that the post office at Armidale became subject to the exclusive control of the Commonwealth, and the State Parliament had no jurisdiction therein, was wrongly decided. The learned author draws a distinction between "exclusive power" and "unlimited power" and maintains that legislation under s. 52 "must be on the subject of such places as places ". 1. (1901) 1 S.R. (N.S.W.) 337. 2. (1901) 1 S.R. (N.S.W.) 337.

The problem has been most exhaustively considered by Professor Zelman Cowen in his paper "Alsatias for Jack Sheppards?". The learned author has isolated five possible views of s. 52. He rejects out of hand the views of Stephen J. in R. v. Bamford [1] and Higgins J. in The Commonwealth v. New South Wales [2] and finally prefers to the view of the majority in R. v. Bamford [1] , a view expressed as follows:

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.

This review of what has been written about s. 52 brings me back, therefore, to the words of the section itself and, whether it be a convenient construction or not, I consider that the section constitutes the Parliament of the Commonwealth the sole authority competent to exercise legislative power for the government of all places described in the section. This is the first alternative stated by Sir Harrison Moore (supra, pp. 118-119). Although there is some overlapping between s. 52 and other provisions in the Constitution, it seems to me that s. 52 does both add to legislative powers of Parliament and make exclusive powers which would not otherwise be exclusive. The key to s. 52 is not to be found in s. 52 (iii.); that was no doubt added merely for logical completeness.

I recognize that the view which I take would require Commonwealth legislation at least along the lines of the Assimilative Crimes Act of the United States; indeed, it probably requires more comprehensive legislation by the Commonwealth Parliament to secure that the law, in what is conveniently called the federal enclave, is, in general, the same as the law in the State in which that enclave is situated.

So far as this case is concerned, the conclusion which I have stated requires, as a consequence, a decision that the regulations in question did not apply to his employer on the occasion when the plaintiff was injured.

I would therefore overrule the demurrer to the fifth plea.

This case was, by virtue of the Judiciary Act 1903-1965 Cth, s. 40A, removed to this Court from the Supreme Court of New South Wales. The question of law which led to this was propounded by demurrers in the course of the elaborate and lengthy pleadings in the action. To ensure that the matter of law in issue would appear correctly, the parties were allowed to amend the pleadings at the outset of the case in this Court and to purge the demurrer book of matter which ought not to have been included in it. They availed themselves of the opportunity to put the pleadings in better shape. The reduction of the demurrer book to essentials caused it as amended to begin with the fourth count of the declaration; and that commences by referring to "the plaintiff as aforesaid" throwing one back, it might be supposed, to some description, in an earlier court, of him or of the right in which he sues: but it appears that that is not so and that all that is meant is the plaintiff in the action. Then there was a reference to "the second-named defendant", meaning thereby those defendants compendiously called by the firm name "Roche Bros.". However, leaving minor inelegancies aside, the material averments which emerged from the pleadings were as follows.

On the part of the plaintiff it is said that he was "engaged in" certain building work which the defendants, members of a firm known as Roche Bros., were carrying out. He fell from a height and was hurt. He bases his action on several grounds including breaches of statutory duties, imposed by regulations made under a New South Wales statute, the Scaffolding and Lifts Acts, 1912-1960, which are designed for the safety and protection of workmen working in high places. These regulations require anyone "who directly or by his servants or agents carries out any building work" to "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". They also require that such persons carrying out building work shall "effectively fence the open sides of all floors". As the regulations lay these duties upon all those who carry out building work, the plaintiff claims to have causes of action against several defendants, two companies, and collectively the persons comprising the firm Roche Bros. He sued them all in the one action and then by separate counts in his declaration alleged that each of the three defendants was "carrying out" the building work where he was hurt, and that each was guilty of the same breach of statutory duties. He also sued each for common law negligence.

There is no allegation of a relationship which would make the two companies and those who comprise Roche Bros. joint tortfeasors. These different parties were I assume joined in the one action, in which each is said to be responsible for the same damages, on the basis that the effect of s. 49 of the Common Law Procedure Act, 1899-1965 N.S.W. has been qualified by the Law Reform (Miscellaneous Provisions) Act, 1946 N.S.W., s. 2, and that by the separate counts the plaintiff sues the defendants in the alternative but upon substantially the same cause of action. A single trial at nisi prius of all issues of fact raised by the pleadings against the several parties could prove troublesome: cf. Menzies v. Australian Iron & Steel Ltd. [1] . But the present case relates only to the action against Roche Bros. We can proceed to determine it as if the other defendants were not parties to the action.

Roche Bros. demurred to the second of the two counts alleging breaches of statutory duty on their part. The ground of their demurrer is that the count does not shew a cause of action. The contention presumably is that the particular statutory regulation relied upon does not create a private right of action.

Roche Bros. also pleaded to the counts founded on the statutory duty, saying, by one plea as to each count,

that at all material times they were performing their part of the alleged building work as subcontractors and not otherwise; and, by another plea as to each count, that at all material times the land upon which the alleged building work was being carried out was the Royal Australian Air Force Base at Richmond in the State of New South Wales and was owned by and had been acquired by the Commonwealth of Australia for the purpose of a Royal Australian Air Force base prior to the coming into force in New South Wales of the regulations under the Scaffolding and Lifts Act, 1912, as amended, upon which the plaintiff sues. To these pleas the plaintiff demurred. These demurrers thus raise two issues of law. One is whether the regulations under the Scaffolding and Lifts Act apply to subcontractors engaged in building work. That is a question of construction of the regulations. It raises no constitutional question. The first demurrer to the pleas and the demurrer to the count of the declaration were therefore stood over pending our decision on the demurrer raising the constitutional issue. The question is whether the provisions of the regulations can apply to building work on land acquired and held by the Commonwealth as the Royal Australian Air Force Base at Richmond in New South Wales. That is the question of constitutional law that brings the case to this Court. It is the only question that at this stage has been argued. The issues of fact have not been tried. The determination of them is not essential to the determination of the present question.

As the plea demurred to stood originally it alleged not only that the building work said to have been unsafe was on Commonwealth land, but also that the plaintiff was a Commonwealth servant who when he was hurt was in the course of his duty inspecting the work. The latter averment was omitted from the amended plea. Presumably it was thought irrelevant. And I think it was; for the question of law depends upon the place where the plaintiff was hurt being a Commonwealth place; his status as a Commonwealth officer and his reason for being where he was are not directly material.

There is one further preliminary matter that I should mention. The Scaffolding and Lifts Act, 1912-1960 N.S.W., s. 4, provides that the Act shall have effect in the metropolitan police district, and in such other areas as the Governor, by proclamation published in the Gazette , directs. By a proclamation dated 31st March 1965 the Governor directed that the Act have effect in all areas in the State. If the regulations under the Act, the relevant provisions of which are set out in the declaration, ever had any force or effect in respect of building work at the Richmond Air Force Base they were thus in force there at the time the plaintiff was hurt. The question is: Were they ever in force there? They did not become part of the law of New South Wales until after the land at Richmond was acquired by and became vested in the Commonwealth for the purpose of a Royal Australian Air Force base. That is alleged in the pleas. For the purposes of the demurrer it is therefore to be taken as a fact - as indeed it is.

The case turns upon par. (i.) of s. 52 of the Constitution. It is convenient to set it out for we heard much discussion of almost every word in it.

30. 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.

The arguments have shewn that this is pregnant with problems. Before going to what I consider to be the main substance of the question, I shall state, perhaps dogmatically but I trust not didactically, what seem to me to be the meanings of some of the words and phrases that were so carefully debated. "The seat of government of the Commonwealth" means, I think, a place, a locality. The presence of this expression in s. 52 is traceable to cl. 17 of s. 8 of art. I of the Constitution of the United States of America. It was, however, an expression well known in our language from a much earlier time. I do not find it necessary to add anything to what I said about this in Spratt v. Hermes [1] , beyond remarking that the term "seat of government", meaning a capital city, has never been taken to mean a precise area of the earth's surface delineated by metes and bounds, any more than has a seat of learning, meaning a university town, or a place described as the seat of a bishop. Of course a power to make laws with respect to a place, if it be understood as a power to make laws for the conduct of people in that place, does postulate that the place can be precisely defined. But that presents no difficulty in Australia in relation to the seat of government; because the seat of government, however it be spatially measured, must be within territory as described in s. 125 of the Constitution; and in respect of such territory Commonwealth legislative power is plenary and exclusive.

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] .

1. (1960) 105 C.L.R. 303, at pp. 324, 325. 2. (1966) 119 C.L.R. 584.

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.

1. (1938) 304 U.S. 518, at pp. 527-530 [82 Law. Ed. 1503, at pp. 1508-1510].

"The numerous lands acquired from New South Wales by the Commonwealth as property do not constitute a series of Commonwealth enclaves, in which New South Wales writs cannot operate or New South Wales police perform their functions": The Commonwealth v. New South Wales [1] . Territories surrendered to the Commonwealth by a State, and over which the Commonwealth exercises political dominion, can be properly called enclaves: places acquired and held by the Commonwealth as Commonwealth properties within a State to my mind cannot. 1. (1923) 33 C.L.R., at p. 59.

To return to the words of s. 52: "all places acquired by the Commonwealth for public purposes." The power to make laws for "all" such places is, I have no doubt, a power to make laws for all such places or any such place. It is thus exercisable in respect of all Commonwealth places or any particular place or all places of a particular kind or class.

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.

1. (1953) 87 C.L.R. 501, at pp. 520, 521. 2. (1963) 109 C.L.R. 475.

During the argument it seemed to me at first that s. 52 is not itself a source of Commonwealth power to make laws for places acquired. It provides that upon the acquisition by the Commonwealth, by any lawful means, of a place for public purposes the Commonwealth Parliament has, "subject to the Constitution", "exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to" that place. I thought 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, not to confer a power. However, for reasons that were pointed out in the course of the argument, I realize that that is probably too narrow a view. It would suffice in many cases because, for example, a law with respect to places acquired for post offices would be sustained by the power to make laws with respect to postal services, a law with respect to Commonwealth Bank premises by the banking power, a law with respect to quarantine stations by the quarantine power, a law with respect to military barracks by the defence power, and so on. Nevertheless, 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. Moreover, there is no dispute that the Richmond airfield is a place that was acquired by the Commonwealth for, and is held for, public purposes. The question is not what power with respect to it the Commonwealth has. It is what power the State has not. That is to say what is the effect of the Commonwealth law-making power in respect of it being "exclusive"?

Apart from R. v. Bamford [1] , decided in the Supreme Court of New South Wales soon after Federation, and The Commonwealth v. New South Wales [2] , in this Court in 1923, there have, it seems, been no judicial pronouncements by superior courts on the effect of par. (i.) of s. 52. Discussions in leading textbooks and articles give useful, but varied, guidance. The main opposing views are, as I read what has been said, as follows. On the one hand, that when a place has been acquired by the Commonwealth, the exclusive power of the Parliament to make laws with respect to it means that all existing State laws are excluded, that it becomes an enclave in a strict sense, that a state of anarchy comes into existence in respect of it. On the other hand, that an exclusive law-making power does not exclude existing laws but merely prevents the State, as from the date of acquisition by the Commonwealth, making laws with respect to the place. Behind the question posed in that way, and especially material if the second view above be adopted, is a further question of the ambit of the phrase "laws with respect to" places acquired. Does it mean that the only State laws excluded are those which can be said to be with respect to the place as a place? Or does it cover all laws which regulate any conduct within that place and also any conduct which in some way affects its use for public purposes? I shall consider these matters in the order I have set them out.

1. (1901) 1 S.R. (N.S.W.) 337. 2. (1923) 33 C.L.R. 1.

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.

1. (1901) 1 S.R. (N.S.W.) 337. 2. (1940) 309 U.S. 94 [84 Law. Ed. 597]. 3. (1966) 119 C.L.R. 584. 4. (1923) 33 C.L.R., at p. 43.

The position I take is therefore not unlike that reached by the majority in R. v. Bamford [2] . But I do not adopt the qualification which Owen J. there expressed, namely that after acquisition of a place the Parliament of a State can still repeal or alter any law theretofore enacted by it that is in force with respect to that place. That proposition, which is founded on the last sentence of s. 108, is I think untenable because it would conflict with the exclusive legislative power of the Commonwealth. I accept as the true solution of the difficulty that the language of s. 108 creates that which was at an early date propounded by Messrs. Quick and Garran in their monumental work and later taken too by Professor Harrison Moore. It is that the latter part of s. 108 dealing with alterations and repeals of State laws by State Parliaments does not refer to powers that have become exclusively vested in the Commonwealth Parliament but only to concurrent powers: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), at p. 938 ; Harrison Moore, The Commonwealth of Australia, 2nd ed. (1910), at pp. 411, 412 .

The conduct by the Commonwealth of an air force base is unquestionably a public purpose. Land acquired for that purpose is a place acquired for public purposes within the meaning of s. 52. It follows that, in the view I take, only the Commonwealth Parliament had power to make laws with respect to the Richmond Air Base as from the time of its acquisition. The regulations on which the plaintiff relies, made under the authority of a New South Wales statute, were made after the place was acquired. Therefore, if they are laws made with respect to the place, within the meaning of s. 52, they have no force or effect there. The critical question thus becomes whether or not the regulations which are expressed to take effect throughout the State can, in relation to the Air Base, be properly called laws with respect to that place. That was said to depend upon their proper characterization and categorization. These terms, uncouth for grammarians and those who care for English undefiled, are accepted and useful in the jargon of Australian constitutional law. They mean, as I understand them, describing a statute by its subject matter or topic and classifying it accordingly by reference to heads of power as stated in the Constitution.

Broadly speaking, two views of s. 52 seem possible. One is that a law of a State Parliament that according to its construction is passed with intent that it is to operate throughout all parts of the State is invalid so far as it purports to operate in, or in relation to, Commonwealth places there. This supposes that a general Act of a State Parliament which, in terms and intention, extends to Commonwealth places must be taken to have been made with respect to such places among other places; and that it is thus to that extent an unlawful invasion by the State of a field within the exclusive power of the Commonwealth Parliament.

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.

In the present case the law in question is a general law governing building work in New South Wales. I find it hard to say that it is not upon its proper construction enacted as a law to govern all such work anywhere in the State. I have come to the conclusion that it is. Therefore, having been made after the Richmond land was acquired, it has in my view no operation there. As I have said, this view of the effect of s. 52 produces serious complications. These are, I think, the result of transplanting language of the American Constitution into the different climate of Australia. However, the inconveniences and complications that arise upon this view are less serious than would be those that would come from any other of the suggested constructions of s. 52. They are less serious because they are easily remediable by the Commonwealth Parliament. It does not have to enact a complete code of laws, criminal and civil, for all Commonwealth places as a substitute for anarchy there. For there is no anarchy, merely divergences in the law applicable in different places within a State which were acquired by the Commonwealth at different times. That lack of uniformity in the operation of State law could be overcome by a short Commonwealth Act while at the same time ensuring that Commonwealth places remain within Commonwealth control. As I see it, all that is necessary to resolve all the difficulties is a Commonwealth statute providing that the laws of each State, from time to time in force, should have full force and effect in all places already acquired, or acquired in the future, by the Commonwealth, which are within the geographical limits of that State, save in so far as any such State law is inconsistent with any Commonwealth law or is incompatible with the conduct by the Commonwealth of its lawful purposes carried on in any such place.

I would overrule the plaintiff's demurrer to the fifth plea of the defendants Roche Bros. That plea should, I consider, be held to be good in substance.

The other demurrers are at present standing over for further consideration. I would add, for my part, that I am disposed to think that the question of law raised by the demurrer to the said defendants' fourth plea could best be decided after relevant facts have been determined by a trial of the issues of fact.

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.

In considering the question thus raised we are not concerned in the present case with the problems which the Supreme Court of New South Wales was called upon to consider in R. v. Bamford [1] . That case related to land which had vested in the Commonwealth under s. 85 of the Constitution and to the operation in those circumstances of s. 108.

Section 52 (i.) of the Commonwealth Constitution provides that:

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.

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.

The amended declaration filed on behalf of the plaintiff in an action against several defendants for damages for personal injury includes two counts against a defendant described as "Roche Bros." (herein called the defendant). These are the fourth and fifth counts of the amended declaration. The fourth count alleges a breach of a statutory duty imposed by par. (3) of reg. 73 made under the Scaffolding and Lifts Act, 1912 N.S.W., as amended. The fifth count alleges a breach of a statutory duty imposed by par. (8) of the same regulation. The material parts of that regulation as set out in the declaration are in the following terms:

51. 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 and for this purpose, without limiting the generality of the foregoing, he shall -

(3) 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.

(8) effectively fence in the manner prescribed by these Regulations the open sides of all floors

To both those counts a plea (the fifth plea) has been made which asserts that the land on which the building work was being carried out was the Royal Australian Air Force Base at Richmond in the State of New South Wales and was owned and had been acquired by the Commonwealth of Australia for the purpose of a Royal Australian Air Force base prior to the coming into force of the relevant regulations. The question raised by a demurrer to the fifth plea is whether or not s. 52 (i.) of the Commonwealth Constitution operates to prevent the regulations from having any operation in relation to the carrying out of building work in that place. There were other demurrers but argument on them has been adjourned and this judgment is concerned only with the question which I have just stated.

In the judgments of other members of the Court, which I have had the advantage of reading, reference has been made to judicial statements and to opinions expressed by commentators concerning the meaning and operation of s. 52 (i.). They are conflicting. They require careful consideration but do not provide a decisive solution of the difficult problem with which they deal.

In considering the question before the Court it is desirable to mention first two questions concerning the language of s. 52 (i.) which were discussed in the argument of counsel but which I think may be put aside so far as the present case is concerned. It is not necessary to consider how wide is the meaning of the word "places", since there is in my opinion no doubt that the Air Force Base to which the plea refers is a "place" within that meaning. I think it is clear also that the statements made in the plea, which for present purposes are to be taken to be true, are sufficient to establish that the land was "acquired by the Commonwealth for public purposes" and it is not necessary to consider questions which might arise in other circumstances as to the meaning of those words.

The question was raised whether the use of the word "all" before the word "places" has the effect that the power to which s. 52 (i.) refers cannot be exercised by making a law which is with respect to some or one only and not to all of the places described in the provision. I feel no doubt that it may be so exercised.

Having mentioned those preliminary matters, I turn to the real problem raised by the demurrer. It is convenient as a first step in examining it to consider, so far as is necessary for the purpose of this case, the scope of the power conferred upon the Commonwealth Parliament to legislate with respect to places acquired by the Commonwealth for public purposes, that is, to consider whether or not it would support a law applicable in those places regulating in the same manner the same activities as those which are the subject of the State law, that is, reg. 73 read with the Act under which it was passed.

For the purpose of this examination I assume that the Commonwealth Parliament has passed a law, expressed to be applicable in all such places or in some of them, which enacts that whenever building work is being carried out the persons carrying it out shall observe certain specified rules. These rules are expressed in the same terms as those contained in the regulation. It is assumed also that the question whether or not the law is within power is considered without regard to any source of power to enact it other than s. 52 (i.). In my opinion, such a law would be a law for the peace, order, and good government of the Commonwealth "with respect to" the places in which it is expressed to apply.

Since the words "with respect to" are used both in s. 51 and s. 52 in conferring power to make laws, it seems right to attribute to these words the same meaning in s. 52 (i.) as in s. 51, so far as it is possible to do this having regard to the differences in the character of the subject matters of power with which the provisions respectively deal. If so, it is necessary that a law made under the power conferred by the second part of s. 52 (i.) should have such a direct and substantial connexion with the places therein described that it can be said to be a law made with respect to them. In my opinion, a law which regulates the manner in which building work in such places is to be carried out has such a connexion with them. Its connexion with the places is not "insubstantial, tenuous or distant": Melbourne Corporation v. The Commonwealth [1] .

I think that the opinions, mentioned by Professor Zelman Cowen in the paper "Alsatias for Jack Sheppards?" in Sir John Latham and Other Papers, p. 188, which treat s. 52 (i.) as limited to the grant of an authority to legislate with respect to such places "as places" or with respect to them as ager publicus put a restriction upon it which is not warranted. The required relationship between the law and the place may be found to exist notwithstanding that it deals with the regulation of some conduct or activity in those places.

In my opinion, it would not be right to deny the validity of the law which I have assumed to have been enacted by the Commonwealth Parliament on the ground that it should be characterized as one which had as its subject matter not the places but the safety of workers or the conduct of building operations. Even if it might be described as a law with respect to the safety of workers or with respect to the conduct of building operations it could also be properly described, in my opinion, as a law with respect to the places and would, therefore, be within the power conferred: cf. P. J. Magennis Pty. Ltd. v. The Commonwealth [2] ; and Herald and Weekly Times Ltd. v. The Commonwealth [3] .

1. (1949) 80 C.L.R. 382, at pp. 402, 403. 2. (1966) 115 C.L.R. 418, at p. 434.

I am not able to accept the view that in order that the law may be so described it is essential that it may be seen from the terms of the law that it has been enacted with the object of meeting some particular need or dealing with some particular problem arising out of the nature of the purpose for which a place has been acquired or for which it is being used. This view is not supported in my opinion by the language of the section or by reasons derived from a consideration of its relationship to other provisions of the Constitution. Nor am I able to accept the still more restricted view submitted by learned counsel for the plaintiff that, in order to come within the power conferred by s. 52 (i.), a law must be a law to control or regulate the "characteristics" of the place and must be related to its physical condition and characteristics. All that the provision requires is that the law should be with respect to the place and this means that it should have a direct and substantial connexion with the place. The views to which I have just referred would set up a different requirement, namely, that the law should be with respect to the fulfilment of a particular purpose for which the place is acquired or used or should be with respect to its physical condition and characteristics.

The work of constructing, erecting, adding to, altering, repairing, equipping, furnishing, painting, cleaning or demolishing buildings or structures, which constitutes building work (see Scaffolding and Lifts Act, 1912 N.S.W., s. 3) seems to me to be directly and closely connected with the places in which it is carried out. I think that a law which regulated conditions to be observed by persons carrying out such work in places acquired by the Commonwealth for public purposes would properly be described as a law with respect to those places.

In my opinion, it is not necessary to decide in this case what is the full scope of the power conferred. It is not necessary to decide, for example, whether or not laws relating to the form in which contracts or wills should be made in such places and dealing with the validity and the operation of such instruments would be laws with respect to those places within the meaning of s. 52 (i.). The inquiry may be limited to legislation of the same kind as that with which this case is concerned.

So far it has been supposed that a law of that kind has been enacted to operate only in such places. Now let it be supposed that the Act enacting the law is expressed to apply also throughout all or some of the Territories in respect of which the Commonwealth Parliament has legislative power derived from other sources, as well as in such places. As will appear later I am of opinion that such a place does not cease upon acquisition to be part of the territory of the State in which it is situated. The law which is now assumed to be enacted is a law which is not limited to the selection of such places alone, for the exercise of a power which is independent of territorial dominion, but is a law which lays down rules to be observed in such places and in Territories over which the Parliament has legislative power. In my opinion, the validity of the supposed law in its application to the places acquired for Commonwealth purposes would not be affected by the circumstance that it is not limited to those places. Its validity would depend upon the question whether or not it should be described as being, in so far as it was made to apply in those places, a law with respect to them. If that description would be correct in relation to a particular law if enacted separately and solely for such places, I think that there would be no sufficient reason for denying the correctness of the description in relation to the application in such places of the same law if enacted as a more general one. I do not find in s. 52 (i.) a requirement that the places to which it refers must necessarily be made the subject of a separate exercise of legislative power confined to them or to some of them.

So far I have considered and have stated opinions upon the question of the positive power conferred upon the Commonwealth Parliament to enact legislation of the kind with which this case is concerned. I must deal now with the negative aspect of the problem. Bearing in mind that the power so conferred is an exclusive power, I must consider what is the effect in this case of the denial of State power which is the result of the exclusiveness of the Commonwealth power. If the conclusions which I have already stated be correct it seems to me to follow that if a State enacted (directly by Act of its Parliament or indirectly by subordinate legislation) a law which laid down the same rules and imposed the same duties as the supposed Commonwealth law which I have considered and was expressed to apply only in places (being within the boundaries of the State enacting the law) acquired by the Commonwealth for public purposes, this law would be invalid. Such a law would be a law with respect to those places. Consistently with what I have written above it would be a law with respect to those places not for the reason or not solely for the reason that it was made applicable only in those places, but because it would be a law which by reason of its regulation of the carrying out of building operations in those places would have such a direct and substantial connexion with them as to warrant its being described as a law with respect to them.

The relevant law which has been made by the State of New South Wales is not restricted to such places but applies throughout the State. Thus the question is raised whether or not that is a reason for regarding it as not being a law with respect to those places. According to the opinions I have earlier stated the Commonwealth Parliament has power to make a law regulating the conduct of building operations in those places. It appears to me to be a necessary consequence that the making by the State of such a law to apply in those places is an attempted intrusion upon the power of the Commonwealth Parliament. If that power had not been made an exclusive power the State could, of course, make such a law which would be and would remain effective, subject to s. 109. But as it is an exclusive power the attempted intrusion upon it has no validity.

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.

I conclude, therefore, that the State law which is in question in this case is of no effect within the area occupied by the Air Force Base. I recognize the practical merits of the view of the operation of s. 52 (i.) favoured by Professor Zelman Cowen in the paper cited above. This view is that although s. 52 (i.) confers a general power upon the Commonwealth to legislate with respect to places acquired by the Commonwealth for public purposes, nevertheless, a State law will intrude upon the exclusive Commonwealth power only if it appears that the State law is directed specifically to places acquired by the Commonwealth. But I find that view unacceptable, since it appears to me that it fails to equate the area of the exclusive power of the Commonwealth Parliament with the area of power which is denied to the States. I think that it is a necessary consequence of the exclusiveness of the Commonwealth power that those areas should be equated.

My conclusions have been reached after careful consideration of the dicta in Spratt v. Hermes [1] which would support a different view. But with respect I am unable, for reasons which I think have been sufficiently indicated, to adopt those statements and apply them so as to resolve the problem raised by this case. My conclusions may be summarized by stating that the law in question is one which could be validly enacted by the Commonwealth Parliament to govern the carrying out of building work in all or some places acquired by the Commonwealth for public purposes; the consequence is that the power of the State of New South Wales to make a law which governs the carrying out of building work in some of those places, that is in those of them which are within that State, must be denied because the power of the Commonwealth Parliament is an exclusive power; such a law is a law with respect to those places, notwithstanding that it operates generally throughout the State, because in its relevant application it has a direct and substantial connexion with them.

1. (1965) 114 C.L.R., at p. 258 and at pp. 262, 263.

This case does not require a decision upon the question of the operation in a place which has been acquired by the Commonwealth for public purposes of a State law made before it was acquired and I refrain from stating any opinion upon that question.

The demurrer to the fifth plea should be overruled.