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High Court of Australia |
BRENNAN CJ,
DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
Matter No S 18/96
NEWCREST MINING (WA) LIMITED FIRST APPELLANT
BHP MINERALS LIMITED SECOND APPELLANT
AND
THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT
THE DIRECTOR OF NATIONAL PARKS
14 August 1997
FC 97/036
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in lieu thereof:
(a) declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 78-89 was still in force;
(b) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 23, 25-28, 751-756 was still in force;
(c) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), neither of the mining leases MLN 19 nor MLN 24 was any longer in force; and
(d) order that the costs of Newcrest Mining (WA) Limited and of BHP Minerals Limited of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.
3. Liberty to apply on 7 days notice.
Representation:
J J Spigelman QC with G A Flick SC for the first and second appellants (instructed by Clayton Utz)
B J Shaw QC with S J Gageler for the first and second respondents (instructed by Australian Government Solicitor)
Intervener:
T I Pauling QC with T J Riley and R J Webb intervening for the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)
Matter No S 16/92
NEWCREST MINING (WA) LIMITED PLAINTIFF
AND
THE COMMONWEALTH OF AUSTRALIA FIRST DEFENDANT
THE DIRECTOR OF NATIONAL PARKS
AND WILDLIFE SECOND DEFENDANT
1. In respect of the matter reserved by order of the Chief Justice made on 21 May 1996, namely the question whether the proclamations made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) published in the Commonwealth of Australia Gazette on 12 June 1987, 22 November 1989 and 24 June 1991 are invalid by reason of s 51(xxxi) and s 122 of the Constitution of the Commonwealth:
(a) Declare that in respect of mining leases MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(b) Declare that in respect of mining leases MLNs 23, 25-28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(c) Order that the costs of Newcrest Mining (WA) Limited of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.
(d) Liberty to apply on 7 days notice.
Representation:
J J Spigelman QC with G A Flick SC for the plaintiff (instructed by
Clayton Utz)
B J Shaw QC with S J Gageler for the first and second defendants (instructed by Australian Government Solicitor)
Intervener:
T I Pauling QC with T J Riley and R J Webb intervening for the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Newcrest Mining (WA) Ltd & Anor v The Commonwealth
of Australia & Anor
Constitutional law - Validity of proclamations made under National Parks and Wildlife Conservation Act 1975 (Cth) - Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution.
Constitutional law - Characterisation of a law capable of dual characterisation - Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation.
Constitutional law - Meaning of "acquisition of property" in s 51(xxxi) of the Constitution - Whether proclamation prohibiting mining effects an acquisition of mining tenements.
Mining - Validity of mining leases - Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth) - Whether right of renewal in existence.
Mining - Validity of mining leases - Whether government approval or authority necessary for renewal of particular lease - Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth).
Constitution of the Commonwealth, ss 51(xxxi), 122.
Northern Territory (Self-Government) Act 1978 (Cth) ss 50(2), 70.
Northern Territory (Administration) Act 1910 (Cth).
National Parks and Wildlife Conservation Act 1975 (Cth).
National Parks and Wildlife Conservation Amendment Act 1987 (Cth).
Mining Ordinance 1939 (NT).
Mining Act 1980 (NT).
BRENNAN CJ. An appeal from a judgment of the Full Court of the Federal Court and a question reserved for the opinion of the Full Court of this Court were heard together. The issues for determination relate to a number of mining leases that were held by or on behalf of the appellant ("Newcrest") - the plaintiff in the proceedings - over parcels of land in the Northern Territory. When the proceedings commenced, the original terms of some leases had expired but the original terms of other leases were current. However, the Northern Territory had purported to renew the leases the original terms of which had expired. The terms of the purportedly renewed leases and the terms of the other leases had not expired when two proclamations were made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act") whereby the areas of those leases were added to and included in Kakadu National Park. For the purposes of these proceedings, the leases may be divided into two classes: one class[1] consists in the leases which had been purportedly renewed by the Northern Territory on the expiry of their original terms, the areas of which were purportedly added to and included in the extension of Kakadu National Park by a proclamation dated 21 June 1991 and published in the Gazette of 24 June 1991; the other[2] consists in the leases which had not expired when a proclamation dated 13 November 1989 and published in the Gazette of 22 November 1989 purported to add the areas of those leases to and include them in Kakadu National Park.
In relation to the first class, a question arises as to whether the purported renewal of those leases by the Northern Territory was effective to vest in Newcrest the interest of a lessee at the time when the proclamation of 21 June 1991 was made. If the answer to this question is in the affirmative, the next question is whether that proclamation effected an acquisition of Newcrest's property without just terms and, if so, whether the proclamation is invalid for want of compliance with the requirements of s 51(xxxi) of the Constitution. The same question arises mutatis mutandis in relation to the second class of leases. Newcrest submits that the proclamation of 13 November 1989 is invalid as being an acquisition of its property in the leases otherwise than on just terms.
The grant and purported renewal of the leases
All leases had been granted prior to 1978 pursuant to the provisions of the Mining Ordinance 1939-1972 of the Northern Territory. Some were gold-mining leases, others were mineral leases. Leases of both kinds were granted over "Crown land" as defined in the Mining Ordinance[3]. The definition of "Crown land" prior to 1978 included, subject to certain immaterial exceptions, "all land of the Crown or of the Commonwealth". The Mining Ordinance contained provisions relating to the renewal of leases. Section 42 provided:
" The term of a gold-mining lease shall not exceed twenty-one years from the first day of January next preceding the approval thereof, but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of twenty-one years, subject to the Ordinances and regulations relating to gold-mining leases in force at the time of renewal."
Section 49 contained the like provisions applicable to mineral leases.
In 1978, the Northern Territory (Self-Government) Act ("the Self-Government Act") was enacted. Although, subject to certain exceptions, the Commonwealth's interests in land and the Commonwealth's interests in respect of minerals in the Territory were to be vested in the Territory by sub-ss (2) and (4) respectively of s 69, s 70 authorised the publication of a Gazette notice declaring that any interest in land that was to be vested in the Territory by s 69(2) be acquired by the Commonwealth. On 22 June 1978, s 70 came into operation. A notice was published in the Gazette on 29 June 1978 pursuant to which the Commonwealth acquired on 1 July 1978[4] the fee simple interest in the lands over which Newcrest's leases had been granted. But s 70 did not expressly confer power on the Commonwealth to acquire the interest in respect of minerals that was to be vested in the Territory by s 69(4). This difference in drafting between the two sections is explicable by the need to express in s 69(4) an intention to vest in the Territory the mineral interests of the Commonwealth that would otherwise have been reserved to it under other legislation. The acquisition of mineral interests was then covered in s 70 by the words "an interest less than, or subsidiary to, such an interest" (being the interest in land to be vested under s 69(2)). That extension of the power of acquisition was sufficient to include an interest in minerals lying on or in land acquired by the Commonwealth under s 70.
Although the Commonwealth acquired the fee simple in the land the subject of Newcrest's leases, it acquired that interest subject to the leases. That was the effect of s 70(6) of the Self-Government Act which provided:
" Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory."
Thus, on 1 July 1978, the Commonwealth held the reversions expectant on the determination of the respective leases, Newcrest holding the leases "from the Commonwealth on the same terms and conditions as those on which they were held from the Territory".
Newcrest submitted that, notwithstanding the acquisition by the Commonwealth of a fee simple interest in the lands the subject of Newcrest's leases, Newcrest was entitled to renewal of those leases under ss 42 and 49 of the Mining Ordinance. The submission was based on the contention that the right to renewal was a term of each lease and on the effect of s 57(1) of the Self-Government Act which provided:
" Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."
However, it appears that there was no term conferring a right to renewal contained in any of the leases. The learned trial judge found[5]:
" Although no formal leases were executed, the parties seem to have proceeded upon the common assumption that the terms and conditions of the mining leases were as defined in the forms prescribed by reg 102A of the Mining Regulations made under the Mining Ordinance. The point was made by the respondent that the form of lease contained no provision for renewal at the expiry of its term."
The point was well made. Moreover, even if the statutory rights to renewal contained in ss 42 and 49 of the Mining Ordinance were treated as a term of the respective leases, the right conferred thereby would not have been an absolute right to have the leases renewed but a right to renew "subject to the Ordinances and regulations ... in force at the time of renewal". By the time when the term of any lease expired after 1 July 1978, the definition of "Crown land" had been amended in s 7 of the Mining Ordinance by excluding all land "of the Commonwealth"[6]. In consequence of that amendment, no renewal under the Mining Ordinance could have been granted over land which had been acquired by the Commonwealth. Section 8(2) of the Transfer of Powers (Self- Government) Ordinance 1978 (NT), a transitional provision which preserved accrued rights, was relied on to support Newcrest's submission of an accrued right to renewal. But the only relevant rights which Newcrest had had were statutory rights the content of which depended upon the actual state of the Mining Ordinance in force at the time of renewal. Section 8(2) preserved no right to renewal enforceable against the Commonwealth.
The complex of statutory provisions above referred to effectively denied Newcrest the benefit of the statutory right to renew any lease expiring after the Commonwealth acquired the fee simple in the relevant land. Notwithstanding the Commonwealth's acquisition of the relevant land, the Territory purported to renew the leases in the class first referred to. Moreover, the purported renewal of one of these leases[7] occurred at a time when the relevant land had been incorporated into a declared conservation zone under a proclamation made pursuant to s 8A of the Conservation Act. Section 8B(1)(b) of that Act prohibited renewal of a gold mining or mineral lease "except with the consent in writing of the Minister and subject to such conditions as the Minister determines". The Minister was the Minister administering the Conservation Act. He gave no consent to the renewal and an attempt by Newcrest to clothe the Northern Territory officials with the cloak of agency for the Minister rightly failed at the trial.
Newcrest sought to raise a claim to compensation for refusal of consent under s 8B(2) of the Conservation Act, the relevant parts of which read:
" A person adversely affected by the refusal of the Minister to give consent ... under paragraph (1)(b) is entitled to be paid reasonable compensation by the Commonwealth."
However, on the facts of the case, it seems that the Minister did not decide to refuse consent. Assuming that the Minister had had power to renew the expired lease, Newcrest's case can be put no higher than this: the Minister failed to give a decision on renewal. A failure to give a decision is not a refusal under s 8B(1)(b) giving rise to an entitlement to compensation under s 8B(2). Section 8B(2) is conditioned on an actual refusal, not on a constructive refusal of consent.
It follows that, when the proclamation of 21 June 1991 was made, the leases in the class first referred to had expired. The proclamation affected no current interest of Newcrest and was effective to include the land to which it referred in Kakadu National Park.
The proclamations under the Conservation Act
Section 7 of the Conservation Act authorised the Governor-General by proclamation to declare an area to be a national park and to assign a name to the park, the area of the park being taken to include the subsoil to the depth specified in the proclamation. By a proclamation of 5 April 1979, the Governor-General declared an area set out in a schedule to the proclamation to be the Kakadu National Park and a depth of 1000 metres below the surface was specified to be within the park. The term "Kakadu National Park" was defined[8] to mean "the area for the time being declared under section 7 to be the park of that name". Section 7(8) of the Conservation Act contained a power to amend a proclamation declaring an area to be a national park. It provides:
"Subject to this section, the Governor-General may, by Proclamation, revoke or amend a Proclamation made under this section."
The proclamations of 13 November 1989 and 21 June 1991 further amended the schedule to the proclamation which had declared the areas included in Kakadu National Park. The proclamation of 13 November 1989 added the land over which Newcrest held unexpired leases; the proclamation of 21 June 1991 added the land over which Newcrest had held leases, the terms of which had then expired.
Prior to the making of these proclamations, the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Conservation Amendment Act") had amended the Conservation Act by, inter alia, inserting sub-s (1A) in s 10:
"No operations for the recovery of minerals shall be carried on in Kakadu National Park".
The phrase "operations for the recovery of minerals" was given a new definition in a section inserted into the Conservation Act as s 3A. The phrase means, inter alia, "any operations or activities for or in connection with, or incidental to, the mining ... or recovery of minerals". The proclamations of 13 November 1989 and of 21 June 1991 ("the impugned proclamations") did not effect an acquisition of Newcrest's leaseholds nor did they effect an acquisition of whatever property Newcrest may have had in the subjacent minerals[9]. However, by adding to Kakadu National Park the lands over which Newcrest's leases subsisted, the impugned proclamation of 13 November 1989 sterilised the benefits which Newcrest might otherwise have derived from possession of those leases. Did the sterilisation amount to an acquisition of property?
Under its mining leases, Newcrest had the right exercisable against the Commonwealth as reversioner to mine for, extract and take away minerals from the leased land during the term of the lease[10]. When that land was included in Kakadu National Park, Newcrest's rights to carry on operations for the recovery of minerals were extinguished.
By force of the amendments of the Conservation Act effected by the Conservation Amendment Act, the Commonwealth was left in undisturbed possession of the minerals on and under the land included in Kakadu National Park. The Commonwealth's interest in respect of the minerals was enhanced by the sterilisation of Newcrest's interests therein. In my opinion, by force of the impugned proclamations, the Commonwealth acquired property from Newcrest[11]. The property consisted not in a right to possession or occupation of the relevant area of land nor in the bare leasehold interest vested in Newcrest but in the benefit of relief from the burden of Newcrest's rights to carry on "operations for the recovery of minerals".
Section 7 of the Conservation Amendment Act provided that -
"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."
Section 7 was not inserted into the Conservation Act. Its effect is expressly restricted to the enactment of the Conservation Amendment Act. Although s 7 negates a right to compensation for a loss of which "the enactment of this Act" is the causative event, the context of that Act shows that the losses to which s 7 is directed are losses produced by the provisions of that Act. The Conservation Amendment Act is directed solely to the prohibition of operations for the recovery of minerals within Kakadu National Park. It would attribute an adventitious operation to s 7 if it were held to apply only in relation to land that had been included in Kakadu National Park up to the time of the enactment and not to apply to land included in the Park after that time. I would therefore hold that s 7 precluded any claim for compensation in respect of the Commonwealth's acquisition of Newcrest's property resulting from the sterilisation of Newcrest's right to carry on operations for the recovery of minerals under its subsisting leases.
There is no doubt but that the interests which Newcrest had in the unexpired leases were "property" within the meaning of that term in s 51(xxxi) of the Constitution. Equally, the interests which Newcrest claimed to have and which would have been vested in it had its other leases been validly renewed would have been "property".
The validity of the Conservation Amendment Act
If, by reason of s 7 of the Conservation Amendment Act or otherwise, the purported acquisition of property effected by the sterilisation of the mining rights of Newcrest under its subsisting leases were not on just terms, the validity of the acquisition is in question. The Commonwealth acquired Newcrest's property by the combined operation of the impugned proclamations and the Conservation Amendment Act. Thus the questions for determination are whether the Parliament of the Commonwealth had legislative power to enact the Conservation Amendment Act and whether, that Act being on the statute book, the Governor-General had power to make the impugned proclamations.
Two provisions were invoked by Newcrest to invalidate the acquisition. The first was s 50(2) of the Self-Government Act which reads as follows:
"... the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51 (xxxi) of the Constitution would apply, shall not be made otherwise than on just terms."
The second provision is s 51(xxxi) of the Constitution which reads:
" The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."
If s 50(2) of the Self-Government Act be construed as a general provision imposing upon the Executive Government of the Commonwealth an obligation to pay just compensation for any acquisition of property in the Northern Territory, s 7 of the Conservation Amendment Act is a special provision which pro tanto repeals s 50(2). If s 50(2) be construed as imposing upon the Executive Government of the Northern Territory an obligation to pay just compensation for acquisitions it makes or authorises, it is irrelevant to the present case. That leaves for consideration s 51(xxxi) of the Constitution.
It was not contested by Newcrest - indeed, it was alleged by Newcrest in its amended statement of claim - that the Parliament had power under s 51(xxix) of the Constitution to forbid mining in Kakadu National Park in implementation of the Commonwealth's obligations under the Convention for the Protection of the World Cultural and Natural Heritage[12]. The implementation of the Commonwealth's obligations under that Convention, which was effected by prohibiting operations for the recovery of minerals in Kakadu National Park, was a purpose for which the Parliament had power to make laws. But if the sole source of legislative power to enact a law prohibiting mining in Kakadu National Park were the external affairs power, any acquisition of property that was involved in effecting the prohibition would have had to satisfy the requirements of par (xxxi). Paragraph (xxxi) of s 51 abstracts from most of the other powers conferred by s 51 the power to make laws for the acquisition of property for the purposes stated in those other powers. As Dixon CJ said in Attorney-General (Cth) v Schmidt[13]:
"The decisions of this Court show that if par (xxxi) had been absent from the Constitution many of the paragraphs of s 51, either alone or with the aid of par (xxxix), would have been interpreted as extending to legislation for the acquisition of land or other property for use in carrying out or giving effect to legislation enacted under such powers. The same decisions, however, show that in the presence in s 51 of par (xxxi) those paragraphs should not be so interpreted but should be read as depending for the acquisition of property for such a purpose upon the legislative power conferred by par (xxxi) subject, as it is, to the condition that the acquisition must be on just terms."
The Conservation Amendment Act is a law which effects an acquisition of property and, in so far as it is a law with respect to external affairs, it must find support in s 51(xxxi) or it is invalid[14]. A law which, like the Conservation Amendment Act, does not provide just terms for an acquisition can find no support in s 51(xxxi) but it may be supported by some other legislative power. The Commonwealth invokes s 122 as a legislative power available to support the Conservation Amendment Act.
Section 122 of the Constitution - its scope and limitations
In its submissions, Newcrest sought to identify the law for which support had to be sought as the Conservation Act. That is too imprecise an identification. The Conservation Act contains many provisions that are irrelevant to the acquisition of property by the Commonwealth and unconnected with the provisions under which Newcrest's property was acquired. What must be identified are the relevant acquisition and the precise provisions which effected it. Neither the subsisting leases nor Newcrest's rights of possession or occupation under those leases were acquired. What was acquired was the benefit of the extinguishment of Newcrest's rights to carry on operations for the recovery of minerals. Those rights were acquired by operation of the Conservation Amendment Act and it is that Act for which support must be found in s 122 if the acquisition is to be held to be valid. In so far as the acquisition was effected by the impugned proclamations, the same constitutional support is needed to uphold their validity. In other words, if the Conservation Amendment Act be valid in its application to the areas included in Kakadu National Park by the impugned proclamations, the proclamations attract the sterilising effect of s 10(1A) of the Conservation Act to those areas. Of course, if the Conservation Amendment Act be invalid, the impugned proclamations would effectively include the areas to which they relate within Kakadu National Park but the right to carry on operations for the recovery of minerals would not be affected. So the question is this: does s 122 of the Constitution support the provisions of the Conservation Act inserted by the Conservation Amendment Act?
Although the Conservation Act is intended to apply throughout Australia and, in so far as it does, must find support in the Constitution other than s 122, the Conservation Amendment Act may find support also in s 122. The position is stated by Windeyer J in Spratt v Hermes[15]:
"If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."
The provisions of the Conservation Amendment Act are expressed to apply only to areas of land in Kakadu National Park. As s 122 requires no more to attract it than a sufficient nexus between the law and the territory[16], those provisions are a law which attracts the support of s 122 unless some further consideration limits the operation or scope of s 122.
To repel the conclusion that s 122 supports the Conservation Amendment Act, one or other of two propositions must be established: either (i) no law which would find support in s 51(xxxi) but for a failure to provide just terms can be supported by another head of power; or, (ii) the requirement of just terms that qualifies the power conferred by s 51(xxxi) implies that the power to make laws for the compulsory acquisition of property is abstracted from s 122 as it is abstracted from most of the other powers conferred by s 51. Both propositions are inconsistent with settled constitutional doctrine.
(i) Two heads of power
When a law is supportable by a constitutional power, it is immaterial to its validity that, if some particular requirement were met, it would also be supported by a second constitutional power. So long as the Parliament has power to enact a law, from whatever provision of the Constitution that power be derived, the law is valid. As Starke J said in Ex parte Walsh and Johnson; In re Yates[17]:
"A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source derived. [The section under challenge] can be justified, in my opinion, if it is competent under any of the powers vested in Parliament, whatever the title of the Act, and whatever indications there are in the Act as to the precise power under which it may be suggested that Parliament purported to act." (Emphasis added.)
It follows that, unless there be some reason for denying the sufficiency of the power conferred by s 122 to support the Conservation Amendment Act, the Conservation Amendment Act is valid.
(ii) Section 122 and the requirement of just terms
Covering cl 3 of the Constitution provided for the uniting of the people of the several States "in a Federal Commonwealth under the name of the Commonwealth of Australia". The Constitution was "designed to fulfil the objectives of the federal compact"[18]. Those objectives necessarily included the prescription of the organs of government and their constitution (both Commonwealth and State), the prescription of the powers which the Commonwealth and State governments were to exercise respectively in creating, administering and applying the laws of the several parts of the Commonwealth, the regulation of the financial and trading relationships between the Commonwealth, the States and their people and the prescription of other powers and functions which were to belong solely to the new polity of the Commonwealth. Parts I to IV of Ch I, Chs II and III, certain sections in Ch V and Ch VII deal with the organs of government and their constitution. Part V of Ch I and some other sections of Ch V deal with the legislative powers of the Commonwealth and the respective States. Chapter IV deals with finance and trade. Chapter VI deals with topics discrete from those dealt with elsewhere in the Constitution. It is concerned with the formation and admission of new States, with alterations of State boundaries and, in s 122, with the government of territories that are not States. The government of the territories is a function exclusive to the Commonwealth.
The legislative power conferred by s 122 stands outside the provisions which express the distribution of powers between the Commonwealth and the States. It is distinguished from the provisions which confer other legislative powers on the Parliament in three respects: in text and structure, in the areas to which it is directed and in the absence of any sharing of legislative power with the States.
The text of s 122 confers power to "make laws for the government of any territory", that is, a power to prescribe the mode of government of a territory as well as its domestic laws. Sir W Harrison Moore identified three possible modes of territory government[19]:
"The territory may be governed directly by the Commonwealth exercising all the powers of an unitary government over it; or it may be governed as a dependency with a subordinate government subject to the paramount authority of the Commonwealth; or finally, it may be admitted as a State (sec 121)."
Section 122 therefore provides constitutional support for laws enacted by the Parliament as the domestic laws of a territory and for laws enacted by a territorial legislature on which the Parliament has conferred power to enact the laws in question.
In so far as legislative power is conferred by s 122 in unqualified terms, the subject matter and content of the domestic laws of a territory, whether made in immediate or mediate exercise of the power, are prima facie unlimited. The section, being within Ch VI of the Constitution, is structurally separated from the grants of legislative power in Pt V of Ch I that are exercised for "the peace, order, and good government" of the Commonwealth as a whole. The latter powers are conferred "with respect to" specified subjects, not as a grant of universal legislative power.
The s 122 power is limited, however, to the making of laws for the government "of any territory", not for the peace, order and good government of the Commonwealth as a whole. Although a s 122 law can have an effect outside the territory, a territorial nexus with the law is needed to attract the support of s 122 and, as I point out below, the nature of that nexus is critical to any extra-territorial operation of a law dependent on s 122 for validity.
The power conferred by s 122 is not possessed by or shared with any State. The States possess no power over external territories and, as to internal territories, s 111 provides that, on the acceptance by the Commonwealth of an internal territory that is surrendered by a State, the territory becomes "subject to the exclusive jurisdiction of the Commonwealth".
The universal character of the s 122 power and its separation from the powers conferred by s 51 have been recognised throughout the history of the Commonwealth. In Buchanan v The Commonwealth[20] Barton ACJ said:
"it must be observed that sec 122, by itself, contains all the necessary power to legislate for a territory ... It does not need any assistance from sec 51 in respect either of taxation, or of anything else. It would suffice for all its purposes if there were no sec 51 at all. It is more ample than sec 51 for all the purposes of a territory."
In R v Bernasconi[21] Isaacs J rejected a submission that s 80 of the Constitution limited the mode of trial that might be prescribed for trials in a territory on indictment for contravention of a s 122 law. He said that s 80 -
"is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community. And that is its sole operation.
When the Constitution, however, reaches a new consideration, namely, the government of territories, not as constituent parts of the self-governing body, not 'fused with it' as I expressed it in Buchanan's Case[22], but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power.
It is plain that that section does not consist merely of additional legislative power over territories beyond the powers already conferred upon Parliament in relation to the Commonwealth itself, for its language is unrestricted and covers many of the subjects already specified in sec 51. It is an unqualified grant complete in itself, and implies that a 'territory' is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers."
Perhaps the extreme view of s 122 was taken by Knox CJ and Gavan Duffy J in Porter v The King; Ex parte Yee[23] where, in an obiter, their Honours said that -
"in legislating for ... territories the Parliament of the Commonwealth must rely wholly upon the powers contained in [s 122], and cannot have recourse to legislative powers contained in Chapter I, Part V, of the Constitution, which have reference only to laws for the peace, order and good government of the Commonwealth."
The view that s 122 was the only (albeit sufficient) power to authorise the government or control of external territories was noted by Dixon J in Ffrost v Stevenson[24] but he did not find it necessary in that case to decide whether that view was correct. However, in the same case[25] Latham CJ said:
"In my opinion the source of the authority of the Commonwealth Parliament to make laws for the Territory of New Guinea is to be found in sec 122 and not in sec 51(xxix), the power to legislate with respect to external affairs."
In Attorney-General of the Commonwealth of Australia v The Queen ("the Boilermakers' Case")[26], the Privy Council referred to R v Bernasconi and Porter v The King; Ex parte Yee and said:
"It appears to their Lordships that these decisions (the latter of which was not reached without difficulty and dissent) can be satisfactorily reconciled with the opinion they have formed in the present case by regarding Chap III as exhaustively describing the federal judicature and its functions in reference only to the federal system of which the Territories do not form part. There appears to be no reason why the Parliament having plenary power under s 122 should not invest the High Court or any other court with appellate jurisdiction from the courts of the Territories. The legislative power in respect of the Territories is a disparate and non-federal matter." (Emphasis added.)
The disparate non-federal character of the territories power is illustrated by the absence of any jurisdiction in this Court under s 73 of the Constitution to entertain appeals from the Courts of the Territories, the jurisdiction being conferred by laws enacted under s 122[27]. Courts of the Territories are not "federal" courts, even though they are created by the Parliament, since those Courts are not created in exercise of a federal legislative power but in exercise of the non-federal power conferred on the Parliament by s 122[28].
Then, in Lamshed v Lake[29] Dixon CJ said:
" In considering the operation of s 122 an obvious starting point is that it is 'the Parliament' that is to make the law pursuant to the power s 122 confers. That necessarily refers to s 1 of the Constitution and carries with it the provisions of Pts I, II, III and IV of Chap I. Leaving aside, for the time being, Pt V relating to the legislative powers of the Commonwealth, the next thing to point out in s 122 is the use of the expressions 'accepted by the Commonwealth' and 'placed under the authority of the Commonwealth'. The Commonwealth is the polity established by the Constitution and the 'authority' is the full legal authority which under the Constitution it possesses. ... The legislative power given by s 122 to the federal Parliament is necessarily not a power to make laws with respect to a subject matter defined with reference to a description of conduct, activity or head of law (like bills of exchange) considered suitable for control by a central as distinguished from the local State legislatures. For that reason most of Pt V of Chap I has no relation to it, and since Chap III has been considered to be concerned with judicature in relation to that division of powers (R v Bernasconi)30 it may be treated as inapplicable so that laws made mediately or immediately under s 122 are primarily not within the operation of the Chapter." (Emphasis added.)
If the power to make law mediately or immediately under s 122 is not qualified by Ch III of the Constitution, it would be surprising if a qualification of a specific head of power contained in s 51 limited the legislative power conferred by s 122. In the next case of significance, Spratt v Hermes[31], Barwick CJ said:
"Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s 122 to 'for the government of the Territory'. This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States." (Emphasis added.)
Kitto J said[32]:
"The width of the legislative power it confers is the crucial consideration. Whether or not one or two of the miscellaneous provisions in Chap V apply to the territories - ss 116 and 118 have been suggested, eg in Lamshed v Lake[33], though further consideration has made me more doubtful than I was about them - it seems clear enough that the limitations which Chap I puts upon legislative power in the working of the federal system, anxiously contrived as they are with the object of keeping the Parliament to the course intended for it, are thrown aside as irrelevant when the point is reached of enabling laws to be made for the government of territories which stand outside that system; for s 122 uses terms apt to authorize the Parliament to make what provision it will for every aspect and every organ of territory government. The exercise of the judicial power which is a function of government of a territory is within the unrestricted authority thus in terms conferred. The Court decided quite early, in Buchanan v The Commonwealth[34], that the Constitution, addressing itself here to something different from that to which its first five chapters have been devoted, makes on the new topic a provision which is appropriately free from all concern with problems of federalism. The concern here is not only with 'a new consideration', as Isaacs J called it in R v Bernasconi 35, but with 'a disparate non-federal matter' as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v The Queen[36]." (Emphasis added.)
Consistently with this uniform line of authority, an unanimous Court gave judgment in Teori Tau v The Commonwealth[37]. The Court was constituted by five of the Justices who had sat in Spratt v Hermes (Barwick CJ, Kitto, Menzies, Windeyer and Owen JJ) together with McTiernan and Walsh JJ. In Spratt v Hermes the entire line of s 122 cases had been argued. The judgment in Teori Tau rejected the same argument as that put in the present case. The Court said[38]:
"This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. ...
Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.
It has been held with respect to the heads of legislative power granted by s 51 of the Constitution that by reason of the presence in that section of par (xxxi) none of the other heads of power, either of itself or aided by the incidental power, embraces a power to make laws for the acquisition of property. It is submitted by counsel that because it has been so held and because the power given by s 51(xxxi) is so ample as the decisions of this Court show, s 122 should not be construed as conferring a power to make laws for the acquisition of property. That is to say, it is said, in substance, that s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth.
In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section."
Although Teori Tau follows in direct line the cases which considered s 122 since the establishment of the Commonwealth, Newcrest sought leave to reopen that decision. In my opinion, it is singularly inappropriate to reopen the decision in Teori Tau, especially when the ground for reopening was described by an unanimous Court familiar with the jurisprudence of s 122 as "clearly insupportable". Teori Tau has been followed, uniformly and unquestioningly, in this Court in a line of cases, including: Clunies-Ross v The Commonwealth[39], Northern Land Council v The Commonwealth[40], Capital Duplicators Pty Ltd v Australian Capital Territory[41], Australian Capital Television Pty Ltd v The Commonwealth[42] and Mutual Pools & Staff Pty Ltd v The Commonwealth[43].
A clear recognition of the non-application of the requirement of just terms to a law for the acquisition of property in a territory enacted under s 122 appears in the majority judgment in Clunies-Ross v The Commonwealth[44]:
" First, the power to acquire property for a public purpose which the Act confers is not conferred merely in pursuance of the legislative power contained in s 51(xxxi). It is also conferred in pursuance of s 122 of the Constitution in that, in relation to land in a Territory, the purpose for which the land may be acquired includes 'any purpose in relation to that Territory'. In so far as it includes a power to acquire land by agreement, it is conferred pursuant to either other specific constitutional grants of legislative power or the 'incidental' power (s 51(xxxix)): see Trade Practices Commission v Tooth & Co Ltd[45]. The fact that that power of acquisition is not conferred merely in pursuance of the provisions of s 51(xxxi) weakens the strength of any presumption that the words used in the Act[46] should be construed conformably with the corresponding words used in that paragraph." (Emphasis added.)
Teori Tau rests on a principle "carefully worked out in a significant succession of cases"[47]. The principle is that s 122 confers a power that is additional to the powers conferred by s 51 and is not qualified by that section, the s 122 power being conferred solely on the Commonwealth not for the government of the Commonwealth as a whole but for the government of Commonwealth territories. That is not to say that the scope of the power is not limited by implications drawn from the federal structure, but it is to say that no limiting implication is to be found in the text of s 51(xxxi).
The principle of Teori Tau and the line of cases of which it is a part satisfied the political exigencies in which the Constitution was framed. The s 122 power was to be exercised in the diverse social and economic conditions of territories which might be accepted by the Commonwealth[48]. It would have been improvident to place on the Parliament, as the sole legislature for the territories, the restrictions that limited the s 51 powers which were to be exercised in the government of the whole federal Commonwealth.
However, Newcrest submits that s 51(xxxi) abstracts from s 122 the power to make laws for the compulsory acquisition of property in the same way as it abstracts that power from other powers conferred by s 51 and that it does so in order to preserve the "constitutional guarantee" of just terms. Of course, the description of "constitutional guarantee" has been used in relation to the requirement of just terms, but only in the context of laws that would otherwise have found their support in one of the other paragraphs of s 51. It has never been used in reference to a law enacted under s 122. Indeed, the description was used in Clunies-Ross[49] in the paragraph immediately following the Court's holding that the power to acquire property might be conferred in pursuance of either s 51(xxxi) or s 122. And in Trade Practices Commission v Tooth & Co Ltd[50], Mason and Aickin JJ stated the settled view to be that s 51(xxxi) abstracted the acquisition power from other heads of power "leaving aside s 122".
The long history of s 122 as a universal legislative power standing apart from and additional to the powers conferred by s 51 denies the possibility that the important governmental power of acquiring property compulsorily is abstracted from s 122. The contrary proposition can be tested by assuming that the legislature of a territory on which general legislative powers have been conferred[51] enacts a law authorising the acquisition of property within the territory. Section 51(xxxi) would not apply to the law for that provision is expressed to apply only to laws made by the Parliament for a purpose in respect of which the Parliament has power to make laws. If the power to enact a law for the compulsory acquisition of property were held to be abstracted from s 122, how could the Parliament confer that power on the territorial legislature? The territorial law would be invalid, for the Parliament could not authorise the territorial legislature under s 122 to do what it could not do itself under that section. Yet there is no other provision which would empower the Parliament to confer on a territorial legislature power to make a law for the compulsory acquisition of property. If such a territorial law be valid, it would have derived its constitutional force from s 122. The power conferred by that section must therefore be additional to and unqualified by s 51(xxxi). No doubt s 50(1) of the Self-Government Act was introduced in order to impose on the legislature of the Northern Territory a statutory restriction similar to the constitutional restriction imposed on the Parliament of the Commonwealth by s 51(xxxi). Of course, if s 122 does confer a power to make laws for the compulsory acquisition of property, that power is not qualified by the requirement of just terms in s 51(xxxi). The requirement of just terms qualifies the legislative power of acquisition conferred by s 51(xxxi); it qualifies no other power.
Although the territories power is not restricted by any limitation derived from the text of s 51, a restriction relevant to the power to make a law for the compulsory acquisition of property arises from the nature of the territories power and from the structure of the Constitution. The competent legislative authority of a law area is the authority which alone can enact a law which determines the ownership of property within that area. In international law, the principle is stated in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd[52]:
"The principle denies jurisdiction in a court to determine a claim of title to the property based on the operation of a statute or executive act of the foreign State on that property outside the territory of the foreign State. It is otherwise when the claim of title is based on an exercise of sovereign authority with respect to the property within the territory of the foreign State".
Or, as Lord Denning MR stated the principle in A-G of New Zealand v Ortiz[53]:
"By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority."
By analogy, no legislature in an Australian State has power to enact laws for the compulsory acquisition of property in another State or in a Territory. Nor can a law of a territory under s 122 - in which I include a law enacted by the Parliament of the Commonwealth for the government of a territory - authorise the compulsory acquisition of property situated in a State. The nexus which is sufficient to attract the support of s 122 to a law providing for the compulsory acquisition of property is that the property be situated within the Territory. It is not sufficient that the acquisition is for a territorial purpose or that some personal nexus between the territory and the owner of the property be established. The federal compact permits property to be compulsorily acquired in a State pursuant to a law of the Commonwealth but the terms on which that is provided for are set out in s 51(xxxi). If the territories power could be exercised to acquire property in a State, it could distort or affect the operation of those provisions of the Constitution which express the federal compact and protect the constitutional interests of the people living under it[54]. But the structure of the Constitution shows that, as between the Commonwealth and the States, the powers of the Commonwealth are those conferred in Chs I to V and that s 122 confers power on the Commonwealth as an additional or supplementary power for exercise in performing the function of governing the territories, but not as a power which enlarges the powers of the Commonwealth to make laws for the peace, order and good government of the Commonwealth pursuant to the federal compact. That is not to deny that a law enacted by the Parliament under s 122 has the character of a law of the Commonwealth. I would respectfully agree with the views expressed by Dixon CJ on that question in Lamshed v Lake[55] except that the scope of s 122 needs to be stated in more restricted terms than those used by Dixon CJ[56] in order to preserve the federal compact and to protect the constitutional interests of the people living under it.
As constitutional support for a s 122 law for the compulsory acquisition of property depends upon the property being within the Territory, a law for the compulsory acquisition of property in a State could not be supported as an exercise of an implied extension of the s 122 power to cover what is incidental to its fulfilment. Other kinds of s 122 laws may have an extra-territorial operation. That question engaged the Court in Lamshed v Lake and in Attorney-General (WA) v Australian National Airlines Commission[57]. It probably will arise for further consideration in other cases. But it does not arise in the present case.
If the Commonwealth requires property situated in a State for a territory purpose - say, premises to house an office for the administration of the territory - a compulsory acquisition of the property could be effected only in exercise of the federal acquisition power conferred by s 51(xxxi). The acquisition of property for such a territory purpose would be a matter incidental to the execution of the territories power and could be effected with the combined support of s 51(xxxi) and (xxxix).
Teori Tau is not only consistent with an unbroken line of authority; it is also, in my opinion, correct. If it is not adhered to, the powers of territorial legislatures with respect to the compulsory acquisition of property are denied. There is a further and powerful consideration which tells against the reopening of Teori Tau. Since the Commonwealth first assumed the administration of territories, it has been understood that the power of compulsory acquisition of property within the territory is derived from s 122. During that time, numerous property transactions have taken place in the course of the Territories' development. If the s 122 power does not support compulsory acquisitions, any grant or transfer of property that involved a compulsory acquisition is exposed to uncertainty if not invalidity. No validation of such a transaction could be effected by a retrospective payment of compensation; the legal consequence of any invalidity would simply be that the grant or transfer must be taken never to have occurred. That would produce consequences of unforeseen and unforeseeable difficulty. Teori Tau ought not be reopened.
In my respectful opinion, the proposition that the Conservation Amendment Act cannot be a law for the government of the Northern Territory because those provisions are a law for the compulsory acquisition of property should be rejected as "clearly insupportable" (to adopt the term used in Teori Tau).
The appeal should be dismissed and the question whether the impugned proclamations are invalid should be answered: No.
DAWSON J. This case concerns a claim to certain mining leases in the area of Coronation Hill in the Northern Territory. In 1987 the second appellant, BHP Minerals Limited, transferred its interest in the leases to the first appellant, Newcrest Mining (WA) Limited ("Newcrest"). Various issues were raised upon the pleadings, including the question whether Newcrest's property in the mining leases was acquired by the Commonwealth otherwise than on just terms in breach of s 51(xxxi) of the Constitution. The issues other than that involving s 51(xxxi) were remitted for determination to the Federal Court and this Court now has before it an appeal from the judgment of the Full Court of the Federal Court following upon the remitter as well as the question involving s 51(xxxi) which was not remitted. The relevant facts and legislation are set out in the judgment of Gummow J, but because of the view which I take of the question involving s 51(xxxi), I have no need to refer to them in detail.
The lands over which Newcrest claims mining leases are included in Kakadu National Park. That park was proclaimed in three stages under s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Act"). That sub-section provides that the Governor-General may declare by Proclamation an area specified in the Proclamation to be a park or reserve and assign a name to that park or reserve. On 5 April 1979 Stage 1 of Kakadu National Park was proclaimed. Consistently with s 7(6) of the Act, the Proclamation specified the depth of the subsoil to be taken to be within the park to be 1,000 metres. On 22 February 1984 Stage 2 was proclaimed and a similar depth specified and on 5 June 1987 Stage 3 was proclaimed with a similar depth. Stage 3 was extended by Proclamation on 13 November 1989 and again on 21 June 1991. It is the Proclamations dated 13 November 1989 and 21 June 1991 which the appellants assert are invalid, they together being with respect to an area of land over which the appellants claim their mining leases. It is those Proclamations which, according to the appellants' contention, constitute an acquisition of property otherwise than upon just terms.
Broadly speaking, upon self-government being accorded to the Northern Territory in 1978, all land in the Territory which was previously vested in the Commonwealth was transferred to the Territory. However, simultaneously the fee simple in certain lands, including the lands which were to comprise Kakadu National Park, was acquired by the Commonwealth pursuant to s 70 of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act")[58].
"Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director."
The Director is the Director of National Parks and Wildlife who is a corporation under s 15 of the Act. The Commonwealth accepts that Newcrest's mining leases, if they exist, are property within the meaning of s 51(xxxi) of the Constitution. However, it says that any interest held by Newcrest under the leases was not under s 7(7) vested in the Director and continued to be held by it from the Commonwealth. Nothing would seem to turn upon this.
The Act was amended by the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Amending Act"). The Amending Act inserted in the definition section of the Act the following:
"'Kakadu National Park' means the area for the time being declared under section 7 to be the park of that name".
The Amending Act also inserted s 10(1A) in the Act. That sub-section provides:
"No operations for the recovery of minerals shall be carried on in Kakadu National Park."
Section 7 of the Amending Act provides:
"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."
The appellants contend that the words "by reason of the enactment of this Act" in s 7 of the Amending Act restricted the effect of that section to the situation as it existed when the Amending Act came into force on 18 May 1987. That is to say, the only liability for compensation which s 7 denied was liability arising from the prohibition of mining in Kakadu National Park as it existed at that date. Stage 3 of Kakadu National Park had not been implemented by 18 May 1987 and the lands said to be the subject of the mining leases were included in Stage 3, as extended by later Proclamations. Thus, the appellants argued, s 50(2) of the Self-Government Act continued to apply in relation to the mining leases, unaffected by s 7. Section 50(2) provides that, subject to s 70 (which is immaterial for present purposes):
"the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms".
However, to adopt the construction of s 7 of the Amending Act for which the appellants contend is to disregard the insertion in the Act by the Amending Act of the definition of "Kakadu National Park" as meaning "the area for the time being declared under s 7 [of the Act] to be the park of that name". The effect of that definition is to give s 10(1A) of the Act an ambulatory effect, prohibiting mining operations in Kakadu National Park as it is constituted from time to time. In asserting an acquisition of property, Newcrest relies upon the prohibition against the exploration of the mining tenements in question. Since s 10(1A) of the Act was inserted by the Amending Act, any acquisition of property was by reason of the enactment of the Amending Act.
It is sufficient for my purposes to assume that the Proclamations dated 13 November 1989 and 21 June 1991, together with the statutory prohibition against mining operations in Kakadu National Park, constituted the acquisition otherwise than upon just terms of property held by Newcrest in the form of the mining leases which it claims.
Under s 122 of the Constitution the Commonwealth Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth. Upon federation, the area which is now the Northern Territory was part of the State of South Australia[59]. By s 7 of The Northern Territory Surrender Act 1907 (SA) the Northern Territory was surrendered to the Commonwealth by South Australia in accordance with the agreement set out in the schedule to that Act. By s 6(1) of the Northern Territory Acceptance Act 1910 (Cth) the Northern Territory was declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth by the name of the Northern Territory of Australia. The latter enactment was proclaimed to commence on 1 January 1911.
The legislative power conferred by s 122 is "plenary in quality and unlimited and unqualified in point of subject matter"[60]. Thus, as Barwick CJ explained in Spratt v Hermes[61]:
"Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s 122 to 'for the government of the Territory'. This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States."
The result is that the Commonwealth is, with respect to a territory, a completely sovereign legislature[62]. All that need be shown to support an exercise of the power under s 122 is that there is a sufficient nexus or connection between the resultant law and any territory[63]. Notwithstanding a clear connection between the Act and the Northern Territory, the appellants argue that the relevant provisions of that Act cannot be supported by s 122.
The argument proceeds upon the basis that the Act is intended to have an application throughout Australia, not just in the Northern Territory[64], so that it cannot be characterised as a law for the government of the Northern Territory within the meaning of s 122. That argument cannot be sustained. True it is that the Act has an application beyond the Northern Territory and, to the extent that it does, the legislative power to support its provisions must be found in s 51 rather than s 122. An acquisition of property, where reliance could not be placed upon s 122, would be under s 51(xxxi) and require just terms, for, as has frequently been observed, the presence of par (xxxi) in s 51 abstracts from the other paragraphs of that section the power to legislate with respect to the acquisition of property for any purpose in respect of which the Parliament has power to make laws and makes par (xxxi) the exclusive repository of that power[65].
But the fact that the Act extends in its application beyond the Northern Territory does not mean that in its application to the Northern Territory it is not a law for the government of the Territory. One of the objects of Pt II of the Act, which is headed "Parks and Reserves" and contains the provisions relevant in this case, is expressed as being "to make provision for the establishment and management of parks and reserves ... in the Territories"[66], indicating to my mind a clear intention to invoke the support of s 122 to the extent that it is available. Other sections in Pt II are given a specific application in the Northern Territory[67].
In any event, the appellants' argument denies the well-established principle that in passing a law of general application the Parliament is entitled to rely upon all those powers which are able to support the law. The particular application of that principle where s 122 is involved was explained by Windeyer J in Spratt v Hermes[68] as follows:
"when the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."
It is, in my view, beyond question that Pt II of the Act was intended to apply in the Northern Territory regardless of the validity of its application elsewhere. Not only is it an express object of Pt II that it make provision for the establishment and management of parks and reserves in the Territories, but, as I have said, Pt II is given specific application to areas within the Northern Territory, including Kakadu National Park. There is not only a clear nexus or connection between the legislation and the Northern Territory which is sufficient to support it as an exercise of legislative power for the government of the Territory under s 122 but there is also a clear indication of an intention that its provisions should so apply irrespective of the validity of its application elsewhere.
The appellants rely upon the establishment of the Northern Territory as a separate body politic with extensive powers of self-government as indicating that the Act was not intended to be an exercise of the power to make laws under s 122 of the Constitution. They do not, and could not, submit that, having granted a measure of self-government, the Commonwealth has relinquished its own power to legislate for the government of the Northern Territory. Even if in some circumstances the granting of self-government may have relevance in determining parliamentary intention where legislation expressed to apply generally cannot be validly so applied[69], it remains a question of construction whether the legislation is nevertheless intended to apply to a territory. As I have said, there is clear indication in the Act that Pt II was intended to apply in the Northern Territory, even if it could not validly be applied elsewhere.
The appellants further argue that if Pt II of the Act is supported by s 122 of the Constitution in addition to s 51, the requirement of just terms imposed by s 51(xxxi) nevertheless applies. They make this submission in reliance upon the well-known passage in the judgment of Dixon CJ in Attorney-General (Cth) v Schmidt[70]:
"It is hardly necessary to say that when you have, as you do in par (xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorised the same kind of legislation but without the safeguard, restriction or qualification."
However, whilst the other legislative powers granted by s 51 of the Constitution may be seen as being in the same context as par (xxxi) for the purposes of that passage, the same can hardly be said of s 122. Appearing as it does in a separate chapter of the Constitution headed "New States", the legislative power in respect of the territories "is a disparate and non-federal matter"[71] which, it may also be noted, is not expressed to be subject to the Constitution. Not only does s 122 appear in a different context, but it is a context which provides no basis whatsoever for suggesting any limitation upon the power which it confers save for the requirement of a territorial nexus. On the contrary, its terms deny any such limitation for there can be no formula for the more complete bestowal of legislative power than that used in s 122.
Not only that, but the submission is in direct conflict with the unanimous decision of this Court in Teori Tau v The Commonwealth[72]. In that case, the Court rejected a submission that s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property by the Commonwealth in a territory. It did so without calling upon the defendants because it was "able to reach, without any doubt, a clear conclusion upon the question submitted"[73]. The Court said[74]:
"In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section."
In Clunies-Ross v The Commonwealth[75], six members of this Court affirmed that s 122 confers power to acquire property, such power not being abstracted from it by s 51(xxxi). In Northern Land Council v The Commonwealth[76], a unanimous Court relied upon Teori Tau without questioning it in any respect, as did three members of the Court in Capital Duplicators Pty Ltd v Australian Capital Territory[77]. Moreover, Teori Tau was affirmed by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth[78] and by four members of the Court in Mutual Pools & Staff Pty Ltd v The Commonwealth[79]. Thus, despite other differences of opinion regarding s 122, the relationship between that section and s 51(xxxi) is settled by a unanimous decision of this Court which has stood for nearly thirty years and which, far from having ever been doubted, has been relied upon on numerous occasions[80]. The appellants seek to have the Court re-examine the correctness of Teori Tau, but they should be refused leave to do so. The consequences of departure from settled authority in this instance may be severe. But more importantly, in light of the acceptance in this Court of Teori Tau, it is, I think, difficult to suggest that the decision is plainly wrong. In fact, in my view, Teori Tau is a manifestly correct decision.
It is important to bear in mind that, notwithstanding its requirement of just terms, s 51(xxxi) confers a legislative power. The requirement of just terms is sometimes referred to as a guarantee[81], but that should not be allowed to obscure the fact that it is a qualification imposed upon a legislative power. That power is the power to make laws for the acquisition of property from any State or person for any purpose in respect of which the Parliament has power to make laws. Paragraph (xxxi) is set in s 51 which enumerates those subject matters in respect of which, as part of the federal division of power, the Commonwealth Parliament has power to legislate for the peace, order, and good government of the Commonwealth. The enumerated powers in s 51 circumscribe the purposes for which the Commonwealth Parliament is given power to make laws for the acquisition of property, for they provide the purposes in respect of which that Parliament has power to make laws. As Dixon CJ observed in Attorney-General (Cth) v Schmidt[82] in a judgment in which Fullagar, Kitto, Taylor and Windeyer JJ concurred:
"It is perhaps not easy to express in a paraphrase the extent of the operation of s 51(xxxi) and thus to define its full scope and application but it is at least clear that before the restriction involved in the words 'on just terms' applies, there must be a law with respect to the acquisition of property (of a State or person) for a purpose in respect of which the Parliament has power to make laws. The expression 'for any purpose' is doubtless indefinite. But it refers to the use or application of the property in or towards carrying out or furthering a purpose comprised in some other legislative power."
Section 122 also confers legislative power upon the Parliament, but the power which it confers is a plenary power which is not limited to any subject matter and hence does not restrict the purposes for which laws may be made for the government of a territory. The fact that the power is a power to make laws for the government of any territory does not supply a purpose, at all events in the sense in which that word is used in s 51(xxxi), any more than the power of the Parliament under s 51 to make laws for the peace, order, and good government of the Commonwealth supplies a purpose for which the Parliament has power to make laws within the meaning of s 51(xxxi). The purposes to which s 51(xxxi) refers are limited purposes which are not to be discerned in the plenary legislative power granted by s 122. The power granted by s 122 is unlimited in terms of subject matter and, hence, in terms of purpose, with the result that the power to make laws for the acquisition of property which it necessarily embraces is a completely different power from that granted by s 51(xxxi).
This may, perhaps, be more readily appreciated by comparing the opening words of s 51 with s 122, bearing in mind that the reference in s 122 to "the government of any territory" is no less extensive in relation to a territory than is the expression "the peace, order, and good government of the Commonwealth" in relation to the Commonwealth in s 51[83]. However, in the case of s 51, unlike s 122, the Constitution then proceeds to enumerate particular matters "with respect to" which the power conferred may be exercised. Clearly, it is not the power to make laws for the peace, order, and good government of the Commonwealth which is a "purpose in respect of which the Parliament has power to make laws" within the meaning of s 51(xxxi). The purposes referred to in s 51(xxxi) are limited purposes and those limits must be found in those matters contained in the paragraphs of s 51 and other sections of the Constitution which confer limited powers. However, the power to make laws for the government of any Territory is not limited in any such way and thus is not a "purpose in respect of which the Parliament has power to make laws". Thus, s 51(xxxi) can have no application in relation to the legislative power granted by s 122. The valid exercise of s 51(xxxi) is dependent upon the observance of a limitation laid down by that paragraph by reference to the subject matter of other limited powers.
There is a second reason why s 51(xxxi) cannot, in my view, be construed as limiting the power conferred by s 122. Section 122 is a power to legislate for the government, that is to say, the peace, order, and good government, of any territory. However, the requirement of just terms to be found in s 51(xxxi) is confined by its terms to laws for the peace, order, and good government of the Commonwealth. When the Commonwealth Parliament legislates for the government of any territory pursuant to s 122, even if that territory may be regarded as part of the Commonwealth, it is not legislating for the peace, order, and good government of the Commonwealth but for something entirely different. Sections 51 and 122 clearly posit the government of any territory and the peace, order, and good government of the Commonwealth as different things. A law for the government of any territory is no more a law for the peace, order and good government of the Commonwealth than is a law for the peace, order (or welfare), and good government of a State. No doubt a law passed pursuant to s 51 may have an application in a territory, but that is not to the point.
In Nintendo Co Ltd v Centronics Systems Pty Ltd[84], after referring to the principle of construction laid down in Attorney-General (Cth) v Schmidt, it was said:
"That operation of s 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law[85]."
It is, I think, unnecessary to invoke the principle expressed in that passage, since on the view which I take s 51(xxxi) and s 122 do not collide. But even if they do, it is clear that s 122 manifests the contrary intention to which that passage makes reference. For it confers a complete and unqualified legislative power which is not expressed to be subject to the Constitution but which is situated in a chapter of the Constitution dealing with matters which are different from those dealt with in s 51. That power necessarily extends to the acquisition of property in any territory.
In Allders International Pty Ltd v Commissioner of State Revenue (Vict)[86] I expressed the view, to which I adhere, that since the power to tax conferred by s 51(ii) of the Constitution is subject to a safeguard which prevents its exercise so as to discriminate between States or parts of States, the power to tax is abstracted from the power over Commonwealth places conferred by s 52(i) of the Constitution. In making that suggestion, I referred to the comments of Dixon CJ in Attorney-General (Cth) v Schmidt[87]. The suggestion was, however, rejected as having no merit by McHugh, Gummow and Kirby JJ, with whom Gaudron J agreed. Their Honours referred to the separate and plenary nature of the power conferred by s 52(i)[88]. But the powers conferred by s 52 are expressed to be conferred subject to the Constitution, are to be exercised for the peace, order, and good government of the Commonwealth, and confer power over Commonwealth places as a subject matter rather than as areas over which the Commonwealth enjoys political dominion[89]. If the view is taken that s 52(i) prevails against the safeguard contained in s 51(ii), a fortiori s 122 must prevail against the safeguard contained in s 51(xxxi).
It is true that in Lamshed v Lake[90] Dixon CJ, with whom Webb and Taylor JJ agreed, said:
"To my mind s 122 is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the Territory. The words 'the government of any territory' of course describe the subject matter of the power. But once the law is shown to be relevant to that subject matter it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs."
However, Dixon CJ in that passage must have been using the term "subject matter" in a very different sense from that in which it is used in relation to ss 51 and 52. Plainly the power of the Parliament under s 122 is not confined to particular heads as it is under ss 51 and 52 and to speak of subject matter in relation to s 122 can only be to point to the requirement of some territorial nexus such as has been said to exist in the case of a State legislature which has power to legislate for the peace, order, and good government of the State[91]. However, it would be unusual for the legislative power of a State to be described as a power to make laws with respect to a subject matter, namely, the State, and, apart from any qualifications which may exist elsewhere in the Constitution, the legislative power conferred by s 122 with respect to the territories is no less than that possessed by the State legislatures in respect of the States[92].
In Lamshed v Lake Dixon CJ was concerned to deny the proposition that the power to make laws for the government of any territory under s 122 is a power which is exercised by the Commonwealth Parliament in the capacity of a local legislature for the territory concerned. That was why he referred to the national Parliament of Australia as exercising power under s 122. However, in my view, the question is not the nature of the repository of the power but the nature of the power conferred upon it. In referring to the government of any territory as the subject matter of the power under s 122 and in concluding that any exercise of that power by the Parliament was on a national basis, Dixon CJ was treating s 122 as if it were the equivalent of a head of power under ss 51 or 52 so that it became a power to make laws for the peace, order, and good government of the Commonwealth with respect to territories. He had earlier expressed the same view in Australian National Airways Pty Ltd v The Commonwealth[93] where its effect was made even more apparent by his observation that the incidental power under s 51(xxxix) might be invoked in aid of the power under s 122[94]. Of course, if s 122 were to be viewed as unrestricted in terms of subject matter, albeit limited by a requirement of territorial nexus, there could be no call for any incidental power.
In Australian National Airways Pty Ltd v The Commonwealth[95] Latham CJ and Williams J expressed a view contrary to that held by Dixon J. They equated the power under s 122 to the power of a State legislature to make laws for the peace, order, and good government of the State and concluded that laws made under s 122 have a local rather than national application as do the laws of a State. Such a view was consistent with earlier decisions of the Court, in particular, Buchanan v The Commonwealth[96] and R v Bernasconi[97].
In Lamshed v Lake[98] Dixon CJ's view prevailed in that s 10 of the Northern Territory (Administration) Act 1910 (Cth), which provided that trade, commerce and intercourse between the Northern Territory and the States should be absolutely free, was held, by the application of s 109 of the Constitution, to preclude the operation of an inconsistent State law. However, the only separate judgments which were delivered in Lamshed v Lake were those of McTiernan, Williams and Kitto JJ. McTiernan J dissented due to the construction he placed on the statutory provision in question, and did not appear to accept the view of s 122 taken by Dixon CJ. Williams J, who also dissented, adhered to the view which he had expressed in Australian National Airways Pty Ltd v The Commonwealth. Kitto J, a member of the majority, appeared to accept the line of reasoning adopted by Dixon CJ.
Yet in Spratt v Hermes[99], whilst not questioning the result in Lamshed v Lake, Kitto J departed from much of the reasoning which led to that result and returned to an approach more consistent with that adopted in Buchanan v The Commonwealth and R v Bernasconi. He pointed to the fact that the first five Chapters of the Constitution are concerned with the creation and working of a federation. When one reaches s 122 in Ch VI, he observed, there is a change to a fundamentally different topic[100]:
"The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being 'a part of the Commonwealth'[101]."
Of course, Kitto J was aware that the term "Commonwealth of Australia" is capable of being used for more than one purpose and takes its meaning from its context[102]. Clearly enough the expression comprehends the territories as well as the States in a territorial sense. Indeed, the powers in s 51 of the Constitution may support laws for the peace, order, and good government of the Commonwealth in their application in the territories, a point of some significance to which I shall return in a moment. But the territories are not part of the federation, involving as it does a division of power between the Commonwealth and the States, and that was what Kitto J had in mind in the passage quoted above.
He went on to question the application of certain provisions of Ch V of the Constitution - ss 116 and 118 - to s 122 and said[103]:
"it seems clear enough that the limitations which Chap I puts upon legislative power in the working of the federal system, anxiously contrived as they are with the object of keeping the Parliament to the course intended for it, are thrown aside as irrelevant when the point is reached of enabling laws to be made for the government of territories which stand outside that system; for s 122 uses terms apt to authorise the Parliament to make what provision it will for every aspect and every organ of territory government".
To ss 116 and 118, I would add s 109. When that section says, as it does, that a law of the Commonwealth shall prevail over a law of a State where there is an inconsistency, it is not speaking of a law passed pursuant to s 122, but of a law passed for the peace, order, and good government of the Commonwealth. That was the view of Griffith CJ in R v Bernasconi[104] and I think that it is correct. But a different approach was taken by Dixon J in Australian National Airways Pty Ltd v The Commonwealth and in Lamshed v Lake, for to treat laws made under s 122 as operating upon a national scale necessarily involves the invocation of s 109. If a law made under s 122 operates territorially as does a law of a State, with an extraterritorial operation limited by the requirement of territorial nexus and the capacity to enforce it, it is not properly to be described as "a law of the Commonwealth" as those words appear in s 109. And in that situation there is no need for s 109, just as there is no need for a s 109 to resolve conflicts between laws of the States. Such conflicts are resolved either as questions of power or under the rules of private international law.
The difficulties inherent in the view expressed by Dixon J are apparent in the decision in Attorney-General (WA) v Australian National Airlines Commission[105]. The Court in that case was constrained to apply Lamshed v Lake but, as appears from the dissenting judgment of Gibbs J[106], the breadth of the territories power when regarded as a power to make laws for the peace, order, and good government of the Commonwealth with respect to territories was such as to "elevate it to a position of importance, even dominance, which it cannot possibly have been intended to occupy in the Constitution". The majority, in my view, offered no answer to that dilemma, although it cannot be supposed that they intended to hold that any law having a beneficial effect in a territory falls within the power conferred by s 122.
There are, I think, other difficulties with the view expressed by Dixon J. On that view, for example, s 122 would justify a law which operated to acquire property in a State for territorial purposes. If that were so, there might be some ground for thinking that the power s 122 confers is limited by s 51(xxxi), if that were open as a matter of language. However, in my view, the Commonwealth has no power under s 122 to legislate to acquire land in a State to be used for territorial purposes any more than a State would have power to legislate to acquire land in another State to be used for the purposes of the first State. Such a law would, in either case, be beyond power.
It does not seem to me that the conflict between the earlier cases and the view ultimately adopted by Kitto J in Spratt v Hermes on the one hand, and the view upon which the decisions in Lamshed v Lake and Attorney-General (WA) v Australian National Airlines Commission are based on the other, requires any choice to be made in this case. I should, however, regard the question as an open one, for, while Lamshed v Lake and Attorney-General (WA) v Australian National Airlines Commission stand, so also do the earlier cases, particularly R v Bernasconi, which have never been overruled.
The answer in this case is arrived at more easily, for it is concluded by settled authority which is plainly correct. Section 51(xxxi) does not guarantee just terms for the acquisition of property from any State or person in the same way as, for example, s 80 guarantees that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Of course, R v Bernasconi establishes that a law made under s 122 is not a law of the Commonwealth for the purposes of s 80, but that is not the point here. The point is that in prescribing just terms, s 51(xxxi) imposes a qualification upon the power to make laws with respect to the acquisition of property which that paragraph confers upon the Commonwealth Parliament. There being no doubt that the power to make laws under s 122 is without qualification in point of subject matter, that power necessarily comprehends an unqualified power to make laws with respect to the acquisition of property. There is no process which I am able to discern by which a qualification upon a power to make laws with respect to the acquisition of property can, as a matter of construction or otherwise, be imported as a qualification of an unlimited power which embraces the making of laws with respect to the same subject matter. Had the requirement of just terms been incorporated in the Constitution as a free-standing guarantee, the same questions may have arisen as arose in relation to s 80 in R v Bernasconi. But the requirement of just terms contained in par (xxxi) is part of the description of the subject matter of the legislative power which that paragraph bestows. It is only in that way that it can be said to be a requirement at all and it forms no part of the description of the legislative power bestowed by s 122 which is entirely without limitation in terms of subject matter.
I would observe that this conclusion does not mean that people in the territories are not protected at all by s 51(xxxi). If a law which applies generally throughout the Commonwealth is invalid because it purports to acquire property otherwise than on just terms, it will be wholly invalid unless, as Windeyer J observed in Spratt v Hermes[107], the law manifests an intention that it should operate as a law for the government of a territory even if invalid as a law for the peace, order, and good government of the Commonwealth. It is only if that intention may be discerned that the law will be seen to invoke s 122 and be valid. That is to say, it is only laws which may be seen as being laws for the government of a territory that are not subject to the limitation in s 51(xxxi). If this result is thought to be distasteful, it may be observed that laws for the peace, order (or welfare), and good government of a State are similarly unrestricted by s 51(xxxi). Of course, since it is the same organ - the Commonwealth Parliament - which may legislate for the government of any territory and for the peace, order, and good government of the Commonwealth, the practical scope of the protection contained in s 51(xxxi) is more limited in respect of the territories than it is in respect of the States. That, however, is no more than a consequence of the fact that there is no federal division of power which operates in the territories. Nevertheless, to say that s 122 is not limited by s 51(xxxi) is not to say that s 51(xxxi) can have no application in respect of laws which have an operation in the territories.
However, as I have said, it is quite plain that the relevant provisions of Pt II of the Act are intended to apply in the Northern Territory regardless of whether they are valid in their general application throughout the Commonwealth. Those provisions may be supported by s 122 of the Constitution and, in so far as they involve the acquisition of property, are not required to provide just terms. That is enough to dispose of this matter, for the entitlement of the appellants to the declaratory relief which they claim is dependent upon their establishing the invalidity of the relevant Proclamations and statutory provisions. Thus, the appellants rely on the invalidity of ss 7 and 10(1A) of the Act by reason of the absence of any provision for just terms. For the reasons given, the absence of any such provision does not affect the validity of those sections. In my view, the appellants fail in their appeal and the question whether the relevant Proclamations are invalid should be answered in the negative.
TOOHEY J. In respect of the appeal from the Full Court of the Federal Court and in respect of the matter reserved by order of the Chief Justice made 21 May 1996, I agree with the orders proposed by Gummow J.
As to the reasons which lead me to concur in the making of those orders, I agree with what Gaudron J has written including her agreement with the reasons of Gummow J, save in one respect, namely, her Honour's concurrence with Gummow J that Teori Tau v The Commonwealth[108] should no longer be treated as authority denying the operation of the constitutional guarantee in s 51(xxxi) of the Constitution in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution.
I acknowledge the force of the critical analysis to which Gummow J has subjected the judgment in Teori Tau. And I am not persuaded by the argument of the Commonwealth that the application of s 51(xxxi) to reduce the content of the legislative power conferred by s 122 would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the Northern Territory since 1911, to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law.
Nevertheless, it would be a serious step to overrule a decision which has stood for nearly 30 years and which reflects an approach which may have been relied on in earlier years. If, as Gaudron J has shown (and as Gummow J agrees), par (xxxi) does fetter the legislative power of the Commonwealth where property is sought to be acquired "for any purpose in respect of which the Parliament has power to make laws" and if a purpose of the National Parks and Wildlife Conservation Act 1975 (Cth) is the performance of Australia's international obligations, Teori Tau is not an obstacle to giving effect to the guarantee in s 51(xxxi) in respect of that legislation. Indeed, it seems almost inevitable that any acquisition of property by the Commonwealth will now attract the operation of s 51(xxxi) because it will be in pursuit of a purpose in respect of which the Parliament has power to make laws, even if that acquisition takes place within a Territory. It will only be if a law can be truly characterised as a law for the government of a Territory, not in any way answering the description in par (xxxi), that Teori Tau will constitute such an obstacle. And that is an unlikely situation on the view I take of the operation of the paragraph. If that be right, any implications overruling Teori Tau would have would likely be for the past rather than the future.
It is particularly unlikely, since the Northern Territory (Self-Government) Act 1978 (Cth), that a law of the Parliament for the acquisition of property from any person in the Northern Territory will be a law only "for the government of any territory" within s 122 and not a law which attracts the operation of par (xxxi) because the property is sought to be acquired for a purpose in respect of which the Parliament has power to make laws in terms of s 51(xxxi).
GAUDRON J. I agree generally with the reasons for judgment of Gummow J and with the orders he proposes.
While I agree with his Honour that the constitutional guarantee contained in s 51(xxxi) of the Constitution operates in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution, there are other routes leading to the conclusion that par (xxxi) operated in respect of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act") and the Proclamations made under that Act in relation to Kakadu National Park ("Kakadu").
The Conservation Act is expressed in its long title to be
"An Act to make provision for and in relation to the Establishment of National Parks and other Parks and Reserves and the Protection and Conservation of Wildlife".
It came into operation on the day on which it received the Royal Assent[109], 13 March 1975. The object of Pt II - Parks and Reserves is expressed to be[110]
"to make provision for the establishment and management of parks and reserves:
(a) appropriate to be established by the Commonwealth Government, having regard to its status as a national government;
(b) in the Territories;
(c) in the Australian coastal sea;
(d) for purposes related to the rights (including sovereign rights) and obligations of Australia in relation to the continental shelf of Australia;
(e) for facilitating the carrying out by Australia of obligations under, or exercise by Australia of rights under, agreements between Australia and other countries; or
(f) conducive to the encouragement of tourism between the States and between other countries and Australia".
It is apparent from the way in which these categories have been formulated that reliance is placed on various sources of power. The reference in par (a) to the status of the Commonwealth Government "as a national government" picks up the notion of that Government's "capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation"[111]. As to par (b) of s 6(1), "Territory" is defined to mean "an internal Territory or an external Territory to which this Act extends"[112]. Thus reliance is placed also on s 122 of the Constitution. Although Pt II contains express reference to the Northern Territory, to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and to Kakadu, neither Pt II nor the Conservation Act generally is confined to any particular geographical area. Paragraph (e) is clearly an invocation of the external affairs power, s 51(xxix), and is intended to include the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") which is referred to in par 3 of the Schedule to the Conservation Act.
Section 7(2) of the Conservation Act empowers the Governor-General, by Proclamation, to declare an area to be a park or reserve and assign a name to that park or reserve, and to declare the whole or a specified part of the park or reserve to be a wilderness zone[113]. On 5 April 1979 Stage 1 of Kakadu was proclaimed pursuant to s 7(2). Stage 2 was proclaimed on 22 February 1984. Stage 3 of Kakadu was originally proclaimed on 5 June 1987.
The first Proclamation with which these proceedings are concerned was made under s 7(8) of the Conservation Act on 13 November 1989. That sub-section empowers the Governor-General, by Proclamation, to revoke or amend a Proclamation made under the section. The Proclamation effected a significant increase to Stage 3 of Kakadu. The second Proclamation, effecting a further extension of Kakadu, was made on 21 June 1991. The statement of claim pleads that the first of these two Proclamations purported to vest in the second defendant, the Director of National Parks and Wildlife ("the Director"), various parcels of land by adding them to Kakadu. This was said to effect an acquisition of the first appellant's property, namely, Mining Leases 78-89[114]. The statement of claim then pleads that the second Proclamation purported to vest in the Director further parcels of land by adding them to Kakadu. This was said to effect a further acquisition of the first appellant's property, namely, Mining Leases 19, 23-28 and 751-756.
The respondents admitted in their defence that an object of the making of the Proclamations
"was to facilitate the carrying out by Australia of obligations under, or the exercise by Australia of rights under, an agreement between Australia and other countries, namely the Convention for the Protection of the World Cultural and Natural Heritage".
The defence then simply denies that "the said object was the only object of the making of the Proclamations".
As to the sequence of events, the Convention was adopted and given effect to by the World Heritage Properties Conservation Act 1983 (Cth)[115]. Nothing turns upon that statute for this case. However, the Conservation Act itself had been enacted some eight years earlier, and in The Tasmanian Dam Case[116] the Court held that, in so far as s 69 enabled regulations to be made for giving effect to the Convention, the Conservation Act was within the legislative power of the Commonwealth under the external affairs power. At that time Australia was a State Party to the Convention.
In Richardson v Forestry Commission[117], it was decided that the Convention does not merely impose an obligation on a State Party with respect to areas already entered on the World Heritage List but obliges it to identify areas appropriate for protection. The steps to be taken for inclusion on the World Heritage List were outlined by Mason J in The Tasmanian Dam Case[118]. Section 6(1)(e) of the Conservation Act, set out above, is to be read against that background.
It is common ground that Stage 3 of Kakadu was nominated by Australia on 23 December 1991 for inclusion on the World Heritage List, that the nomination was accompanied by copies of the Proclamations and that Stage 3 was inscribed by the World Heritage Commission on the List at its December 1992 meeting. That these steps were taken after the making of the relevant Proclamations is not critical for the present argument. The point is that the external affairs power supplied a source for the Proclamation-making power, and the making of the Proclamations facilitated the carrying out by Australia of its obligations, or the exercise by it of its rights, under the Convention.
The Schedule to the Conservation Act identifies several international agreements for the purpose of s 69(1) which empowers the Governor-General to make regulations "for and in relation to giving effect to an agreement specified in the Schedule". Thus the case comes before this Court on the footing that the external affairs power is relied upon by the Commonwealth as a source of the Proclamation-making power.
The relief claimed by the appellants included a declaration that certain provisions of the Conservation Act[119] and the Proclamations are invalid and of no effect in so far as they purported to vest in the Director the land over which the Mining Leases existed and in so far as they purported to prevent the carrying out of mining operations on the land. The claim of "invalidity" arises on the footing that s 51(xxxi) empowers the Parliament to make laws with respect to
"[t]he acquisition of property on just terms from any ... person for any purpose in respect of which the Parliament has power to make laws".
Hence a law with respect to the acquisition of property on other than just terms is not a law which can be supported under par (xxxi). To that extent the law is invalid. It is to meet that argument that the respondents invoke s 122 of the Constitution as a source of power to enact s 7 and to make the Proclamations in so far as they relate to land in the Northern Territory.
In Spratt v Hermes120 Windeyer J spoke in the following terms:
"[W]hen the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."
The respondents rely upon this approach as being no more than a particular application of the more general doctrine by which a law expressed in general terms may be read down so as to give the law validity within its constitutionally supported field of operation. What the respondents argue for is in effect a reading down of the Conservation Act to give it, for present purposes, a limited territorial operation. But the power conferred by s 51(xxxi) is a power to acquire property "for any purpose in respect of which the Parliament has power to make laws". If the purpose of the Act is to make provision for the establishment of national parks and reserves and that purpose is supportable under the external affairs power (or the implied nationhood power), why is not par (xxxi) applicable?
In Mutual Pools & Staff Pty Ltd v The Commonwealth[121], Mason CJ said in relation to par (xxxi):
"[T]he other legislative powers reposed in the Parliament must be construed so that they do not authorize the making of a law which can properly be characterized as a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms.
...
Hence, the effect of s 51(xxxi) when read in conjunction with the other legislative powers of the Parliament is that, subject to any contrary intention, it forbids the making of laws with respect to the acquisition of property from any State or person for a relevant purpose on terms that are not just[122]."
While Mason CJ spoke of s 122 standing "in a separate position", referring to Teori Tau v The Commonwealth[123], there was in Mutual Pools no challenge to that decision. In expressing my general agreement with the judgment of Gummow J I include his Honour's conclusion that Teori Tau should no longer be treated as authority denying the operation of the constitutional guarantee in par (xxxi) in respect of laws passed in reliance upon the power conferred by s 122.
The appellants argue that, on any view, the Conservation Act is intended to be a law for the peace, order and good government of the Commonwealth, having application throughout the Commonwealth and extending to "every external Territory"[124]. Equally, they contend that the provisions of the Conservation Act, in so far as they authorise the making of the Proclamations and in turn the acquisition of the mining leases, cannot be characterised as a law "for the government of" the Northern Territory. Thus there are two issues involved in relation to s 122. One is whether the section can have any operation in the circumstances. The other is whether, if it can, but another power is capable of supporting the legislation, the respondents may rely upon s 122 only, with a view to avoiding the operation of s 51(xxxi).
In Australian Capital Television Pty Ltd v The Commonwealth[125], I referred to certain statements in the judgment of Dixon CJ in Lamshed v Lake[126] and in the judgments of Barwick CJ in Spratt v Hermes[127] and in Capital TV and Appliances Pty Ltd v Falconer[128]. I continued:
"It seems to me that the statements to which reference has been made were directed to emphasizing [the amplitude of the power conferred by s 122 and its qualitative difference from that conferred by s 51] and not to asserting that a law which applies in a Territory is, to that extent, a law authorized by s 122. Such a view would be inconsistent with what was said in Lamshed v Lake and with the accepted approach to characterization which treats a law of general application that is not supported by s 51 as invalid in its application to the Territories unless there is some indication that it should nevertheless apply in them."
It has been said that a law is authorised by s 122 if it has "a sufficient connexion or nexus with the good government of the Territory" or "a rational connexion with the government of the Territories". These expressions derive from the judgments of Mason J and of Murphy J in Attorney-General (WA) v Australian National Airlines Commission[129]. I have no difficulty with these "tests" as far as they go. However, they do not directly touch the situation where a law of the Parliament is supportable under a head of power in s 51 but the Commonwealth seeks to rely on s 122 in order to avoid a requirement of s 51. In Australian National Airlines Commission the law of the Parliament under attack was held invalid except in so far as it was a law for the government of a Territory under s 122.
It is, I think, important to identify again the particular point under discussion. If a law is not a law for the government of a Territory, s 122 cannot sustain it. But what if some part of it can be so described but the law is of wider operation? Is the answer simply that if a law is of wider operation it cannot be a law for the government of a Territory? Or is it possible to single out part of the law and sustain that under s 122 even though the whole of the law is sustainable under a head of power in s 51? Or is this just two ways of asking the same question?
A law, valid by reason of s 51, may operate within a Territory. In Lamshed v Lake[130] Dixon CJ said that "it rather taxes legal credulity" to believe that within s 51 a law of the Parliament could not extend to the Northern Territory, it being the Territory with which the Court was there concerned. As already noted, the Conservation Act is one for the establishment of national parks throughout the Commonwealth and extending to the external Territories. Although, as also noted, the Conservation Act makes particular reference to Kakadu, s 7 contains no geographical limitation. It is the source of the power to declare by Proclamation an area to be a park or reserve.
In Australian Capital Television Pty Ltd[131] Deane and Toohey JJ said that "in a context where both of the internal Territories have been granted self-government, it is unlikely that the provisions of Pt IIID of the [Broadcasting Act 1942 (Cth)] were ... enacted as a law for the government of a Territory pursuant to s 122". I took the view that since the Commonwealth had enacted legislation with respect to the establishment of the Australian Capital Territory and the Northern Territory, in each case establishing a separate body politic, Pt IIID of the Broadcasting Act, which dealt with broadcasting in relation to Commonwealth parliamentary elections and referenda, could not be viewed as having a sufficient connexion with the government of those Territories as to make it a law within s 122.
It is true that the provisions of the Broadcasting Act related to the conduct of elections. Nevertheless the principle holds good. It is unlikely that an Act of general application throughout the Commonwealth will also be a law passed pursuant to s 122. And so it is in this case. Indeed, in a context in which the Conservation Act operates throughout the Commonwealth, its Territories and coastal seas and is expressed to have been enacted for purposes connected with the Commonwealth's rights and obligations with respect to the continental shelf, its international treaty obligations and international and interstate tourism, I do not think it possible to characterise it as a law for the government of the Northern Territory, however widely "government" may be construed.
Whether or not that be so, the situation here is that the Conservation Act is supportable under s 51(xxix) as claimed by the respondents. The appellants do not challenge that proposition; indeed they accept it while also contending that the requirement of just terms in s 51(xxxi) applies to an exercise of legislative power under s 122. This is in sharp contrast to the situation where the Commonwealth asserts two heads of power in the event that one may fail, as in Leask v Commonwealth[132].
Section 51(xxxi) operates so as to restrict other legislative powers conferred by the section where the Commonwealth seeks to acquire property from any State or person. As Dixon J observed in Bank of NSW v The Commonwealth[133]:
"In requiring just terms s 51(xxxi) fetters the legislative power by forbidding laws with respect to acquisition on any terms that are not just."
In referring to this passage, I am not concerned with the argument as to whether s 122 is so constrained. I have already expressed my concurrence with Gummow J in that regard[134]. Whether or not one agrees with that view, the point is that par (xxxi) does fetter the legislative power where property is sought to be acquired "for any purpose in respect of which the Parliament has power to make laws".
It is clear, as the respondents contend in this case, that a law may have more than one purpose. Even if s 51(xxxi) is construed as referring to "any purpose in respect of which the Parliament has power to make laws [under this section]", a law which has a purpose of that kind clearly falls within its terms whether or not it is also a law "for the government of [a] territory"[135].
It is one thing to read down s 51(xxxi) so that it does not apply to a law enacted pursuant to s 122 of the Constitution. It is another to treat it as not applying to a law which has two purposes, one of which falls within the terms of s 51(xxxi) and the other of which is for the government of a Territory. That is to rewrite the terms of s 51(xxxi), not to read them down. Neither course is permissible. Rather, the proper approach is to construe constitutional guarantees as liberally as their terms will allow[136].
However, it is not necessary to take a liberal approach in this case. On the assumption that par (xxxi) is to be read down so that it applies only to laws enacted under s 51, its terms, even when strictly construed, extend to a law a purpose of which is one "in respect of which the Parliament has power to make laws [under s 51]". In P J Magennis Pty Ltd v The Commonwealth[137] Williams J said of par (xxxi):
"In my opinion the paragraph applies to all Commonwealth legislation the object of which is to acquire property for a purpose in respect of which the Commonwealth Parliament has power to make laws."
A purpose of the Conservation Act is the performance of Australia's international obligations; that is a purpose in respect of which the Parliament has power to make laws under s 51(xxix); par (xxxi) operates to fetter the implementation of that purpose by means of a law with respect to the acquisition of property[138]. The Commonwealth cannot enact laws for a purpose which falls within s 51 without the condition which attaches by par (xxxi)[139].
McHUGH J. Two principal questions arise in this joint hearing of an appeal against an order of the Full Court of the Federal Court and the determination of a question reserved for the opinion of the Full Court of this Court. The first question is whether the Commonwealth by making proclamations under s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) acquired property of the appellants. The second question is whether, assuming the Commonwealth did so acquire property, the acquisitions are invalid because they failed to provide just terms. The second question turns on whether the exercise of power under s 122 of the Constitution - the territories power - is subject to s 51(xxxi) of the Constitution - the acquisitions power.
The granting of mining leases at Coronation Hill
Between 1947 and 1974, the Commonwealth granted a total of 25 mining leases at a place now called Coronation Hill in the Northern Territory ("the Territory") to the predecessors in title of the first appellant ("Newcrest"). The grants were made at various times under the provisions of the Mining Ordinance 1939 (NT) ("the 1939 Ordinance"). They were for a term of years expiring on 31 December in the 21st year after each grant with a limited right of renewal.
The 1939 Ordinance was made under the Northern Territory (Administration) Act 1910 (Cth). In 1978, the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") repealed the 1910 Act and by s 5 established the Northern Territory of Australia as a body politic under the Crown with effect from 1 July 1978. Section 6 of the Self-Government Act also empowered the Legislative Assembly of the Northern Territory to make laws for the peace, order and good government of the Territory. Subsequently, the Territory legislature enacted the Mining Act 1980 (NT) ("the 1980 Act") which repealed the 1939 Ordinance with effect from 1 July 1982.
The last of the leases did not expire until 31 December 1994, some time after this litigation had commenced. However, relying upon the power conferred on it by the 1980 Act, the Government of the Territory purported to renew the leases known as MLN 19, MLNs 23-28 and MLNs 751-756. By an agreement dated 18 March 1987 the second appellant, BHP Minerals Limited ("BHP"), sold the mining leases with which this litigation is concerned to Newcrest. An instrument of transfer of title implementing the sale was executed on 20 May 1987. A delegate of the Territory Minister for Mines and Energy, acting under s 173 of the 1980 Act, approved the transfer in June 1987. The Commonwealth was not asked to approve the transfer.
The establishment of Kakadu National Park
By a proclamation made under s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the National Parks Act") on 5 April 1979, the federal Government established what was known as Stage 1 of Kakadu National Park ("Kakadu") by declaring the area specified in the proclamation to be a park for the purposes of that Act. Section 7(6) and (7) provided:
"(6) Where an area is declared by Proclamation to be a park or reserve:
(a) the subsoil beneath any land within the area, extending to such depth below the surface as is specified in the Proclamation;
(b) the waters and sea-bed beneath any sea within the area; and
(c) the subsoil beneath any such sea-bed, extending to such depth below the sea-bed as is specified in the Proclamation;
shall be taken to be within that park or reserve.
(7) Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director."
The Director of National Parks and Wildlife ("the Director") is a corporation established by s 15 of the National Parks Act.
The proclamation of 5 April 1979 specified a depth of 1,000 metres below the surface of any land within Kakadu as the depth to which subsoil beneath that land was to be taken to be within Kakadu. Except for any minerals, the interest held by the Commonwealth in the Park was vested in the Director.
In October 1989, the federal Government decided to increase the area of what was known as Stage 3 of Kakadu. On 13 November 1989, under s 7(8) of the National Parks Act, the federal Government made a proclamation extending the area of Kakadu. In 1987, the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the 1987 Act") had inserted s 10(1A) into the National Parks Act. Section 10(1A) stated:
"No operations for the recovery of minerals shall be carried on in Kakadu National Park."
By force of s 10(1A) and the 1989 proclamation, neither Newcrest nor any other person including the Commonwealth could exercise mining rights under MLNs 78-89. Moreover, if the proclamation is valid, Newcrest was deprived of compensation for the deprivation of its mining rights brought about by the operation of the proclamation. Section 7 of the 1987 Act declared:
"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."
By a proclamation made on 21 June 1991, the federal Government again extended Stage 3 of Kakadu. This extension had the effect that s 10(1A) of the National Parks Act prevented any mining under the remaining mining leases.
The appellants contend that the effect of the proclamations was that the Commonwealth acquired Newcrest's interest in the subject land and the minerals and that the Director acquired the interest of the Commonwealth in the land other than the minerals. They also contend that, because s 7 of the 1987 Act prevents them from obtaining compensation for the deprivation of their interests in the mining leases, the Commonwealth has acquired their property other than on just terms and therefore contrary to s 51(xxxi) of the Constitution. The Commonwealth denies that the proclamations resulted in it acquiring any interest of Newcrest. But if they did, the acquisition was valid because it was an exercise of the power conferred by s 122 of the Constitution and property acquired by a law made under that power is not subject to the requirement of s 51(xxxi) of the Constitution. To these contentions of the Commonwealth, the appellants make two replies. First, the source of the power to make the proclamations was not s 122 of the Constitution but s 51(xxix), the external affairs power. Second, if the source of the power was s 122, laws made under that section, like laws made under s 51, must comply with the "constitutional guarantee" that the Commonwealth can acquire property only on just terms.
The history of the litigation
In 1992, Newcrest commenced proceedings in this Court seeking a declaration that the proclamations extending the area of Kakadu so as to affect its mining leases and the provisions of the National Parks Act under which they were made were invalid and a declaration that it was entitled to exercise all rights granted by the mining leases. The Commonwealth was the first defendant. The Director was the second defendant.
On 8 October 1992, Mason CJ remitted part of the proceedings to the Federal Court. Excluded from the remitter were the issues of invalidity arising from Newcrest's contention that an acquisition of property, made under s 122 of the Constitution, must comply with the requirements of s 51(xxxi) of the Constitution. Later, BHP was added as second plaintiff.
French J heard the proceedings and declared that, subject to the effect of the proclamations made under the National Parks Act, Newcrest was the lawful lessee of all the mining leases except MLN 19[140]. His Honour held that at all material times the Commonwealth and not the Northern Territory was the lessor under the leases. Nevertheless, the learned judge held that the transfer of the leases by BHP to Newcrest was valid because the conduct of the Commonwealth precluded it from asserting that the transfers were made without its approval. Consequently, the interest of the Commonwealth in the minerals under the land comprising Kakadu was subject to the rights enjoyed by Newcrest and BHP under the mining leases.
On appeal, the Full Court of the Federal Court (Black CJ and Foster J, Beaumont J dissenting) set aside the orders made by French J[141]. The majority of the Full Court held that, at the respective times the proclamations were made, MLN 19, MLNs 23-28 and MLNs 751-756 were no longer in force because they had not been validly renewed. The Full Court declared that Newcrest was the lawful lessee of MLNs 78-89 (which had not been renewed) but that these leases were subject to the operation of the proclamations made under the National Parks Act. These leases expired on 31 December 1994. On 21 May 1996, Brennan CJ ordered that the constitutional question which had been excepted from the remitter to the Federal Court be reserved for the consideration of the Full Court of this Court.
Acquisition of property
The Commonwealth contends that by making the proclamations it did not acquire any property in any of the leases. The Commonwealth argues that s 10(1A) of the National Parks Act merely sterilised the use of the land for mining purposes when that section declared that "[n]o operations for the recovery of minerals shall be carried on in Kakadu National Park". The Commonwealth points out that the prohibition in s 10(1A) was universal. Because it applied to the Commonwealth and the Director as well as to Newcrest, the prohibition produced no benefit of a proprietary nature for the Commonwealth or the Director. The proclamations may have prevented Newcrest from mining the land but neither the Commonwealth nor the Director received any corresponding advantage. That being so, the Commonwealth contends that there was no acquisition within the meaning of s 51(xxxi) of the Constitution.
Section 51(xxxi) of the Constitution provides:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".
In my view, the Commonwealth's contention is correct. Two issues arise. First, was Newcrest's interest in the mining leases "property" for the purposes of s 51(xxxi)? The constitutional term "property" has been liberally construed. It encompasses traditional estates and recognised interests in land and chattels and extends to include choses in action, intangible property rights and "innominate and anomalous interests"[142]. There is no doubt that Newcrest's interest in the existing mining leases was "property" within the meaning of s 51(xxxi). Indeed, the Commonwealth concedes that it was.
Second, was this "property" acquired by the Commonwealth? Because no compensation was paid to Newcrest and no benefit or advantage otherwise obtained, if there was indeed an acquisition it seems clear that it was not "on just terms". But the question remains, was there an acquisition? In The Commonwealth v Tasmania (The Tasmanian Dam Case)[143], Mason J pointed out that s 51(xxxi) does not apply merely because Commonwealth "legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."
Newcrest's right to mine was adversely affected by the proclamations. But what interest in property did the Commonwealth acquire? Newcrest's interest in the lease was not forfeited or transferred to the Commonwealth or the Director. They already owned the interests in reversion in the minerals and land. Until the leases expired, the property interests of Newcrest in the land and minerals would continue as before. The effect of the proclamations was merely to impinge on Newcrest's rights to exploit those interests. But even if there was effectively a diminution or extinguishment of all or part of Newcrest's interests, there was no gain by the Commonwealth (or the Director). Both as a matter of substance and of form, the Commonwealth obtained nothing which it did not already have. In colloquial terms, Newcrest lost but the Commonwealth did not gain.
To hold that the Commonwealth has not acquired the property of Newcrest does not preclude the possibility of Newcrest being able to argue, at some future time, that an acquisition has occurred. Newcrest may then be able to point to some action by the Commonwealth, whether legislative or otherwise, that has had the effect of ensuring that a gain accrues to the Commonwealth which constitutes an acquisition for the purposes of s 51(xxxi). To date, however, there has been no acquisition.
Accordingly, if s 51(xxxi) were to govern the outcome of the present dispute, I would hold that there was no acquisition by the Commonwealth of any property of Newcrest within the meaning of the section. However, s 122 of the Constitution governs the disposition of the dispute. Section 51(xxxi) has no effect on the content of the power given by s 122 which is sufficiently ample to authorise the acquisition of property in the Territory with or without just terms.
Section 122 of the Constitution provides:
"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 appellants contend that s 122 must be read subject to
s 51(xxxi) of the Constitution
The appellants contend that s 51(xxxi) confers power on the Parliament of the Commonwealth to make laws "for any purpose in respect of which the Parliament has power to make laws" and that s 122 is such a purpose. Accordingly, so the appellants contend, s 51(xxxi) applies to the acquisition of land in the Territory. If this contention is correct, then s 122 cannot authorise an acquisition of property and the Commonwealth, if it wishes to acquire property in a Territory, must use s 51(xxxi). That is because the received doctrine[144] is that, in the absence of a contrary indication in the Constitution, s 51(xxxi) withdraws "from other heads of power (including the incidental power) all content which would otherwise have enabled the compulsory acquisition of property"[145].
If the appellants' argument is correct, the Commonwealth cannot confer power on a self-governing territory to acquire property other than on just terms, which means that a self-governing territory has less power to acquire property from owners in its jurisdiction than a State has power to acquire property from owners in its jurisdiction. Moreover since, ex hypothesi, s 122 does not authorise the acquisition of property, it must follow that the Parliament of the Commonwealth has no power under s 122 to give the self-governing territories power to acquire property. Grants of such power, if they can be given at all, must arise from a combination of s 122 and s 51(xxxi) and perhaps s 51(xxxix) of the Constitution.
There must, however, be grave doubt as to whether those three provisions could be used by the Commonwealth Parliament to confer a power of acquisition on a territory because both s 51(xxxi) and s 51(xxxix) authorise only laws for "the peace, order, and good government of the Commonwealth". But even if they can be used to achieve this result, the self-governing territories would still be in an inferior position to the States, all of whom can acquire property within their jurisdictions other than on "just terms".
A construction of s 122 which leads to the self-governing territories having no power to acquire property under that section or having a power to acquire only on just terms by reason of a combination of s 51(xxxi), s 51(xxxix) and s 122 is not easy to reconcile with Barwick CJ's view[146] that the power conferred by s 122 "is not only plenary but is unlimited by reference to subject matter" and "is as large and universal a power of legislation as can be granted." Nor is it easy to reconcile it with Dixon CJ's view[147] that the power under s 122 is one under "which the Parliament may make every proper provision as part of its legislative power operating throughout its jurisdiction."
The decision in Teori Tau v The Commonwealth[148]
In addition to these difficulties, the appellants face an even more formidable obstacle. Nearly 30 years ago in Teori Tau, this Court unanimously rejected the argument which the appellants now advance. Not only did the Court unanimously dismiss the argument, it thought that it had so little substance that it delivered an oral judgment at the end of the appellant's argument.
Faced with this unanimous judgment of the Court, the appellants seek leave for this Court to reconsider it. In my opinion, there are at least four reasons why leave should be refused.
First, the judgment was unanimous, was consistent with the earlier authorities, has stood for nearly 30 years, and has been applied on at least five occasions[149] without criticism by this Court, the last of which was just over three years ago.
Second, in any event Teori Tau was correctly decided.
Third, it is at least arguable that to overturn that decision would result in grants of freehold and leasehold in the Territory being invalid. This is because freehold grants and perhaps many leasehold grants of land in the Territory have extinguished native title rights and conferred a commensurate and identifiable and measurable benefit on the grantees resulting in an acquisition of the property of the native title owners. Because the grants depend on statute[150] and have been made in a territory as opposed to a State, those grants could not be constitutionally validated without the payment of compensation or a referendum if Teori Tau is overturned. If the decision in Teori Tau was plainly wrong, then justice for the dispossessed holders of native title might justify the Court overruling that decision despite the economic and probable social cost that such a step might bring on the people of the Territory and consequentially on the people of Australia. But I cannot see how at this late stage of the interpretation of s 122, it can be said that Teori Tau is plainly wrong.
Fourth, the decision in Teori Tau may have influenced the Commonwealth to initiate legislative or executive action in sensitive areas of social policy, areas where the Commonwealth knew that later changes in policy could require a reversal of that legislative or executive action. Similarly, the decision may have influenced legislative or executive action that reversed earlier policies. Even the proclamations in this case may have been made wholly or partly in reliance on Teori Tau[151].
The relationship of s 122 to the rest of the Constitution
In interpreting the Constitution, no section or paragraph can be interpreted without recourse to the other provisions of the instrument[152]. Effect must be given to every word of the Constitution that is capable of a sensible meaning[153]. So far as the Constitution permits, conflicting provisions must be interpreted in a way that maximises the scope for operation of each provision. But this does not mean that, where conflict arises, every provision of the Constitution must be given equal weight. Either expressly or by necessary implication, the Constitution may indicate that some provisions must be read subject to one or more of the other provisions. Thus, to confer a power "subject to this Constitution" is "a standard way of making clear"[154] that, where another provision of the Constitution which is not so qualified conflicts with that power, the unqualified provision is to prevail[155]. It is not possible therefore to treat the phrase "subject to this Constitution" or any similar word or phrase as superfluous or to ignore its declaration of priority. If the provisions conflict, it is a mistake to attempt to reconcile them in a way that gives the maximum possible effect to both the dominant and the subordinate provision.
Section 122 is a non-federal power found in Ch VI of the Constitution, which is headed "New States", while s 51(xxxi) is a federal power found in Ch I, Pt V, which is headed "Powers of the Parliament". In Spratt v Hermes[156] Kitto J pointed out:
"[T]he first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies, with their divers interests, sentiments, prejudices, ambitions and apprehensions, to unite in the federation. When Chap. VI is reached, and it is found that s.122 gives the Parliament a general power to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed under the authority of the Commonwealth or otherwise acquired by it, a change to a fundamentally different topic is perceived."
Because s 122 is outside "the special universe of discourse", it should cause no surprise that, on any view of the Constitution, many provisions[157] of its federal Chapters have no application to the territories. This does not mean, however, that s 122 is disjoined from the rest of the Constitution[158] or that other provisions do not affect or are not affected by s 122. After all, s 122 refers to the Parliament of the Commonwealth which as Dixon CJ pointed out in Lamshed v Lake[159] "necessarily refers to s 1 of the Constitution and carries with it the provisions of Pts. I, II, III and IV of Chap. I." Whether or not s 122 affects or is affected by other provisions of the Constitution must depend on the language, subject matter and purpose of those provisions, on whether they are "subject to this Constitution", and the extent to which they would support or undermine the object of s 122.
In some cases the best interpretation of s 122 may be that it overrides the apparently mandatory language of other sections of the Constitution. Thus, because s 122 provides for the making of laws that "allow the representation of such territory in either House of the Parliament", this Court held that the Commonwealth Parliament can legislate to allow representation of the territories in the Senate even though s 7 of the Constitution declares that "[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State"[160]. The Court has also held that s 122 prevails over the requirement of s 55 that "[l]aws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect."[161] The Court regarded s 55 as being connected to the power conferred by s 51(ii) to make laws with respect to "taxation; but so as not to discriminate between States or parts of States" and therefore as directed only to the protection of the States[162]. Similarly, in Svikart v Stewart[163] the Court held that the exclusive power given to the Parliament by s 52(i) of the Constitution to make laws with respect to "all places acquired by the Commonwealth for public purposes" is confined to places "acquired within a State"[164]. Section 52(i) therefore does not prevent the Parliament from "conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory."[165]
Furthermore, the Court has held that a law of a territory is not a law of the Commonwealth for the purpose of s 80 of the Constitution and that a person charged on an indictment under a law of a territory need not be tried by a jury[166]. The chief reason for that conclusion was that s 80 is found in Ch III which "is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories."[167] However, Spratt[168] made it clear that the proposition that Ch III as a whole is inapplicable to s 122 cannot be supported. Nevertheless, Spratt held that the provisions of s 72 - which provides for security of tenure of federal judges and is found in Ch III - has no application to the judicial officers of a court established by legislation supported by s 122 of the Constitution. And in Capital TV and Appliances Pty Ltd v Falconer[169], the Court held that territory courts are not federal courts exercising federal jurisdiction within the meaning of s 73, a section found in Ch III of the Constitution[170].
The nature of some provisions of the Constitution, however, may make it clear that they apply to s 122 and affect the content of the power conferred by that section. In Capital Duplicators Pty Ltd v Australian Capital Territory[171] the Court held that Ch IV of the Constitution precluded the Legislative Assembly of the Australian Capital Territory from imposing duties of excise within the meaning of s 90 of the Constitution. Brennan, Deane and Toohey JJ held that, because s 122 contemplated the creation of internal territories, s 90 could not "be seen as relating to the distribution of legislative powers solely between the Parliament and the States."[172] That being so, s 122 "should not be construed as authorizing the Parliament to create a new legislature for an internal territory with power to make laws that might impose duties of customs or excise or to grant bounties on the production or export of goods."[173] This was because the contrary view would undermine "a central objective of the federal compact and ... defeat the express requirements of s 51(iii)"[174] that bounties on the production of goods should be "uniform throughout the Commonwealth". But not all of Ch IV applies to the territories or affects the content of s 122. By its terms, s 92 of the Constitution - which is also in Ch IV - does not apply to trade, commerce or intercourse between a State and a Territory[175].
Furthermore, the Commonwealth Parliament can enact laws for the government of a territory which protect conduct relating to that territory from the operation of a State law even when the conduct occurs in that State. Laws made for the government of a territory by the Commonwealth are laws of the Commonwealth for the purpose of s 109 of the Constitution and invalidate inconsistent State laws[176]. It may be that sections like s 116 and s 118 of the Constitution also qualify the power conferred by s 122 although I prefer the view that they do not[177].
The relationship between s 51(xxxi) and s 122 of the Constitution
In interpreting s 122 and its relationship with s 51 of the Constitution, the most striking feature of the relationship is that the powers conferred by s 51 are conferred "subject to this Constitution" while s 122 is unqualified by that expression. Thus the relationship between s 51 and s 122 is very different from the relationship between s 122 and s 90 or between s 122 and ss 116 or 118. The use of the expression "subject to this Constitution" does not itself mean that there is always conflict between s 51 and s 122. But it does mean that, where conflict exists, s 122 must prevail. As Megarry J pointed out in C & J Clark Ltd v IRC[178] "[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail."[179] In S v Marwane[180], the Appellate Division of the Supreme Court of South Africa had to construe the words "[s]ubject to the provisions of this Constitution". Miller JA, giving judgment for the majority, said[181]:
"The purpose of the phrase 'subject to' in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is 'subject', is dominant - in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be 'subject to' the other specified one."
Laws made under many of the paragraphs in s 51[182] can operate in the territories without any apparent conflict with s 122. Indeed in Berwick Ltd v Gray[183] this Court held that, while s 122 authorised the application of the provisions of the Income Tax Assessment Act 1936 (Cth) to residents of Norfolk Island, "the Parliament, by laws enacted pursuant to s 51(ii), may impose and regulate the imposition of income tax in the external Territories." In Lamshed[184], Dixon CJ said that the power conferred by s 122 was not so ample that it could not be extended by the operation of the incidental power conferred by s 51(xxxix) of the Constitution. In Attorney-General (WA) v Australian National Airlines Commission[185], on the other hand, Murphy J said that "[i]t is not easy to see how the incidental power could expand the Territories power." Stephen J also favoured[186] the view that "[r]ather than speak of an implied incidental power in connexion with s 122 it may be preferable to regard the express words of grant as including within the power the entirety of power necessary to legislate for the government of a Territory." Mason J also reasoned[187] that s 122 was sufficient to authorise a law that provided for the transport of goods and passengers within a State in so far as it was exercised for the purpose of making efficient or profitable a service of carrying passengers and goods between a State and a Territory or within a Territory.
Why Parliament should need to resort to any of the paragraphs of s 51 to make laws with respect to the territories when s 122 confers powers of equal or greater content is not, however, easy to see. As Barton ACJ pointed out in Buchanan v The Commonwealth[188]:
"[I]t must be observed that sec. 122, by itself, contains all the necessary power to legislate for a territory, including the imposition or continuance of any kind of taxation. It does not need any assistance from sec. 51 in respect either of taxation, or of anything else. It would suffice for all its purposes if there were no sec. 51 at all. It is more ample than sec. 51 for all the purposes of a territory."
Indeed, this Court has interpreted the territories power as authorising laws that protect or promote activities in a State if those activities have sufficient nexus with a territory[189]. I think that the view expressed by Murphy J in Attorney-General (WA) v Australian National Airlines Commission[190] is correct and that s 51(xxxix) cannot add anything to what is already embraced in the grant of power in s 122. Nor does there seem any point in relying on the powers conferred by s 51 to justify a law whose purpose is to do no more than legislate for the government of a territory.
Section 122 needs no support from s 51 to govern the territories effectively. Cases may arise, of course, where the Commonwealth wishes to legislate for the whole of Australia and is content to rely on a s 51 power to do so. In such cases, s 122 will be irrelevant but that is because, as a matter of construction, the law was intended to apply validly throughout Australia and not to be partially saved by reference to s 122.
In Nintendo Co Ltd v Centronics Systems Pty Ltd[191], six members of the Court described how s 51(xxxi) operates so as to affect the content of other powers. We said[192]:
"It is well settled that s 51(xxxi)'s indirect operation to reduce the content of other grants of legislative power is through the medium of a rule of construction, namely, that 'it is in accordance with the soundest principles of interpretation to treat' the conferral of 'an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification'. That operation of s 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law." [footnotes omitted]
However, s 51(xxxi) does not operate to abstract power from s 122. Three reasons justify the view that s 51(xxxi) and s 122 operate in different fields. First, s 51(xxxi) is a federal power found in the heart of the federal chapters while s 122 is "a disparate and non-federal"[193] power found in a chapter headed "New States". That makes it unlikely that conflict was intended or can occur.
Second, the reference to an acquisition "from any State or person" in s 51(xxxi) suggests that the power is concerned with acquisitions within the States. It is true enough that the word "person" is at large, but its association with the word "State" and its place in the federal chapters of the Constitution suggest that the better reading of s 51(xxxi) is that the paragraph is referring to an acquisition within a State. This is reinforced by the work that the word "person" must do if the paragraph applies to the territories. If the paragraph does so apply, then the government of a self-governing territory would have to be a "person" for the purpose of s 51(xxxi) - which seems odd given its juxtaposition with the word "State". If "person" does not include the government of a self-governing territory, however, the federal government would either have no power to acquire the property of the government of a self-governing territory or would be able to acquire it other than on just terms - which seems equally odd if s 51(xxxi) applies to natural persons or corporations in the territories.
Third, the terms of s 51(xxxi) are such that the rule of construction referred to in Nintendo[194] has no application to s 122. This is because the terms of s 122 do not satisfy the words "acquisition ... for any purpose in respect of which the Parliament has power to make laws" in s 51(xxxi). In Attorney-General (Cth) v Schmidt[195], Dixon CJ said:
"The expression 'for any purpose' is doubtless indefinite. But it refers to the use or application of the property in or towards carrying out or furthering a purpose comprised in some other legislative power."
But when the Commonwealth acquires property in a territory, the acquisition is not carrying out or furthering a purpose comprised in s 122 of the Constitution. When the Commonwealth acquires such property, it does so not under s 122 but pursuant to a law that authorises the acquisition of property within the territory. It is of course true that, without s 122, there would be no such law. But that seems to me to miss the point. If the appellants are to succeed on this part of the case, they must show that s 51(xxxi) deprives s 122 of the capacity to authorise the acquisition of property. But s 51(xxxi) can have that effect only if s 122 itself has a purpose of the kind referred to in s 51(xxxi). However, s 122 does not comprise a purpose of that kind. It is a source of power to make laws. Its purpose is to enable the Commonwealth to govern the internal and external territories of the Commonwealth. In my opinion, s 122 no more comprises a purpose of the relevant kind than the power conferred by s 51 "to make laws for the peace, order, and good government of the Commonwealth" relevantly comprises a purpose to make laws for the acquisition of property.
Accordingly, there is no conflict between s 51(xxxi) and s 122. They operate in different spheres. That being so, the rule of construction that applies when s 51(xxxi) and other powers cover the same ground has no application. Section 122 operates according to its terms and authorises the acquisition of property with or without just terms. On the dubious assumption that s 51(xxxi) as well as s 122 operates in the Territory, the Commonwealth is not bound to rely on s 51(xxxi) to acquire property. It can rely on laws made under s 122 whose content is unaffected by s 51(xxxi).
In any event, if contrary to my opinion there is a conflict between s 51(xxxi) and s 122 and they do occupy the same field, the words "subject to this Constitution" emphatically declare that s 122 is to prevail[196]. If conflict exists, s 51(xxxi) cannot operate to withdraw power from s 122.
The fact that the power conferred by s 122 gives the residents of the territories no constitutional protection against the acquisition of property on unjust terms is hardly a cause for surprise. After all, State owners have no constitutional protection against acquisitions of property by State governments. Nothing in the Constitution prevents a State government from acquiring property from an owner on unjust terms. If a territory has self-government, its government stands in a non-federal relationship to its owners. Its relationship is therefore similar to the relationship between a State and its property owners. If a territory has not been given self-government, then the Commonwealth stands in the same non-federal relationship to the property owners of the territory as the States do to their property owners. It is only when the Commonwealth seeks to acquire property for a federal purpose that the Constitution insists that the Commonwealth must pay "just terms".
Nor in my view does it affect the construction of s 122 that s 51(xxxi) has been described as a "constitutional guarantee". No doubt it is - in federal matters. But s 122 deals with the non-federal relationship of the Commonwealth and the residents and owners of property in territories. When the Commonwealth acquires property from an owner in a territory, the nature of its act is no different from that which occurs when a State acquires property from an owner in the State. In both cases, neither the State owner nor the territory owner receives the protection of the "constitutional guarantee".
For the same reasons, it is of no relevance to the question of construction of s 122 that State owners are protected by the "just terms" guarantee against Commonwealth acquisitions and territory owners are not so protected. The relationship between the State owner and the Commonwealth in such a case is a federal relationship. The relationship between the territory owner and the Commonwealth is non-federal. Moreover, it should not be overlooked that, on any view of the Constitution, territory owners and residents are otherwise disadvantaged compared to State owners and residents. Territory residents are not "people of the Commonwealth" for the purpose of s 24 of the Constitution[197]. Consequently, they have no constitutional right to participate in federal elections for the House of Representatives. They are not "people of the State" for the purpose of s 7 of the Constitution. Consequently, they have no constitutional right to participate in federal elections for the Senate[198]. They are not residents of States for the purpose of the protection provided by s 117 of the Constitution. Consequently, they may be discriminated against in the States by the States and in the territories by the Commonwealth or their own government if they have self-government.
Nor, assuming it to be the fact, can it affect the construction of s 122 that, for a territory purpose, the Commonwealth may acquire property in a State without paying just terms unless s 51(xxxi) applies to the territories. I do not accept the contention that the territories power authorises a law compulsorily acquiring property in a State. But if it does, it provides no reason for ignoring the clear terms of s 122.
No doubt s 122 authorises laws that have an effect on conduct that takes place within a State and the operation of such laws may strike down State legislation by reason of s 109 of the Constitution. That is certainly the result of Lamshed[199]. But properly understood, that case decided merely that s 10 of the Northern Territory (Administration) Act 1910 (Cth) providing for freedom of intercourse between the Territory and the States was a valid law under s 122 and that a State law which impeded its operation by penalising certain conduct within the State was invalidated by s 109 of the Constitution. The decision lends no support to the notion that a law made under s 122 can authorise an acquisition of property in a State. Similarly, Attorney-General (WA) v Australian National Airlines Commission[200], when properly understood, does not support the notion. That case decided that s 122 authorised a law that permitted a carrier, without being the holder of a State licence, to carry passengers between Perth and Darwin with an intermediate stop at Port Hedland at which passengers and cargo bound for Perth and Darwin would be loaded or discharged. Since the journey from Perth to Darwin was plainly authorised by s 122, it necessarily followed that the intermediate journey was also authorised as being incidental to the principal journey. But the case is not an authority for the proposition that s 122 would authorise a law that permitted the carrier, in disregard of State law, to make a purely intra-state flight between Perth and Port Hedland.
No State or territory legislature or the Commonwealth exercising its powers under s 122 has any authority compulsorily to acquire property in another jurisdiction. Laws providing for the acquisition of property within a jurisdiction are an exercise of sovereignty. But under long established rules of international law, as Brennan CJ points out in his judgment, no court will give effect to the legislative or executive act of a sovereign in respect of the acquisition of property outside the sovereign's jurisdiction[201]. A sovereign state "has no sovereignty beyond its own frontiers."[202] It is impossible to read s 122 or any State legislative power saved by s 107 of the Constitution as authorising the compulsory acquisition of property in another jurisdiction.
On the other issues in the appeal and question reserved, I agree, for the reasons given by Brennan CJ, that the appellants also fail. The reserved question whether the proclamations are invalid should be answered: No. The appeal should be dismissed.
GUMMOW J.
Introduction
On 2 June 1953 at what thereafter was named Coronation Hill deposits of uranium were discovered in the Northern Territory ("the Territory"). In this litigation, the appellants rely upon what they say were 25 mining tenements granted in the area at different times between 1947 and 1974. The last original grants to expire did so on 31 December 1994. Others were purportedly renewed between 1978 and 1989. It will be necessary later in these reasons to examine more closely the nature of these interests. They were originally created under the Mining Ordinance 1939 (NT) ("the 1939 Ordinance") for a term of years expiring on 31 December in the 21st year after the grant. The 1939 Ordinance was made under the Northern Territory (Administration) Act 1910 (Cth) ("the 1910 Act").
The Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") repealed the 1910 Act. With effect on 1 July 1978, it established the Northern Territory of Australia as a body politic under the Crown (s 5) and provided for the Legislative Assembly of the Northern Territory to have power, subject to the Act, to make laws for the peace, order and good government of the Territory (s 6). A law made by that legislature, the Mining Act 1980 (NT) ("the 1980 Act"), repealed the 1939 Ordinance with effect 1 July 1982. The Commonwealth contends that the Self-Government Act did not preserve any right of renewal of the mining tenements. However, in reliance upon the 1980 Act the Government of the Territory gave to the tenements the numbers MLN 19, MLNs 23-28, MLNs 78-89, MLNs 751-756[203].
By agreement dated 18 March 1987 the second appellant, BHP Minerals Limited ("BHP"), sold certain mining tenements (including those with which this litigation is concerned) to the first appellant, Newcrest Mining (WA) Limited ("Newcrest"). Until 18 April 1991, Newcrest was named BHP Gold Mines Ltd. BHP, before a change of name on 2 November 1981, had been named Dampier Mining Company Limited. The sale of the titles was implemented by an instrument of transfer which was executed on 20 May 1987, approved by a delegate of the Territory Minister for Mines and Energy pursuant to s 173 of the 1980 Act in June 1987, and thereafter registered against the titles. No approval to the transfer was sought from the Commonwealth.
In October 1989, the federal Cabinet decided that the area of what was known as Stage 3 of the Kakadu National Park ("Kakadu") should be significantly increased. To give effect to that decision, on 13 November 1989, a proclamation extending the area of Kakadu was made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act"). This statute had been amended by the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the 1987 Act"), which had inserted s 10(1A) of the Conservation Act. Section 10(1A) stated that "[n]o operations for the recovery of minerals shall be carried on in Kakadu National Park." The result, if effective in law, was to prohibit Newcrest (or any other person) from exploiting the relevant mining tenements, MLNs 78-89. Moreover, s 7 of the 1987 Act provided:
"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."
Stage 3 of Kakadu was further extended by proclamation made 21 June 1991, so as to apply s 10(1A) of the Conservation Act to the balance of the 25 mining tenements. I will identify the proclamations of 13 November 1989 and 21 June 1991 as "the Proclamations".
Each of the Proclamations was expressed as amending a proclamation under s 7(2) of the Conservation Act which had been made on 5 April 1979. This had established what was known as Stage 1 of Kakadu by declaring the area specified in the proclamation to be a park for the purposes of the Conservation Act. Section 7(6) and (7) provides:
"(6) Where an area is declared by Proclamation to be a park or reserve:
(a) the subsoil beneath any land within the area, extending to such depth below the surface as is specified in the Proclamation;
(b) the waters and sea-bed beneath any sea within the area; and
(c) the subsoil beneath any such sea-bed, extending to such depth below the sea-bed as is specified in the Proclamation;
shall be taken to be within that park or reserve.
(7) Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director."
The Director of National Parks and Wildlife ("the Director") is a corporation established by s 15 of the Conservation Act.
Consistently with s 7(6) and (7), the proclamation of 5 April 1979 specified the depth of 1,000 metres below the surface of any land within Kakadu as the depth below that surface to which subsoil beneath that land was to be taken to be within Kakadu and, save in respect of any minerals, the interest held by the Commonwealth was vested in the Director.
The effect of the Proclamations was to extend the scope of the earlier proclamation and s 7(6) and (7) had corresponding operation for the additional areas of Kakadu.
The appellants complain that the combined effect of the Proclamations made under s 7(8), with s 7(2), (7) and s 10(1A) was that, upon the Proclamations taking effect in respect of the increased areas of the park, the Commonwealth acquired Newcrest's interest in the subject land and the minerals and the Director acquired the interest of the Commonwealth in the land other than the minerals. They further say that this result was brought about without observance of the constitutional requirement of just terms, and that the Director has prevented Newcrest from exercising its rights under its mining tenements.
The appellants submit that the Proclamations were an exercise of power conferred by legislation supported by s 51(xxix) of the Constitution, but not by s 122. In particular, they point to the operation of the Conservation Act beyond the confines of the Territory and the substantial measure of self-government enjoyed in the Territory as indicators that the statute was not intended to be an exercise of power under s 122. I would resolve the constitutional issues on the footing that s 122 does apply, and hold that, even so, and whether or not s 51(xxix) also applies, the constitutional requirement of just terms is attracted.
Statutory right to compensation
It is convenient at this stage and before turning to the history of the litigation to deal with a particular issue of construction of the 1987 Act which stands somewhat apart from the other issues in the litigation. The appellants point to the fact that at the commencement of the 1987 Act on 18 May 1987 neither of the Proclamations had been made. The consequence was that Kakadu did not then include the areas where the relevant mining tenements were situated.
The argument proceeds by reference to s 50(2) of the Self-Government Act. The text is set out later in these reasons. It provided that the acquisition of any property in the Territory which, if it were in a State, would attract s 51(xxxi) of the Constitution, was not to be made otherwise than on just terms. The submission is that s 50(2), as a matter of statute, bound the Commonwealth to provide just terms upon the later acquisition of the mining tenements by or pursuant to the Proclamations and the operation of s 10(1A) of the Conservation Act which was also enacted by the 1987 Act. The appellants claimed that was so notwithstanding the operation of s 7 of the 1987 Act and irrespective of any operation in the Territory of the constitutional guarantee in s 51(xxxi).
In essence, the appellants submit that the phrase in s 7 of the 1987 Act "by reason of the enactment of this Act" identifies the effect that the 1987 Act had at the time of its enactment and does not extend to subsequent events brought about by or pursuant to the later operation of s 10(1A) in an expanded area of Kakadu. The result, on the appellants' case, is that the denial of liability to pay compensation otherwise required by reason of s 50(2) of the Self-Government Act does not operate in respect of that expanded area. Section 50(2) is said to apply with its full force.
However, s 3 of the 1987 Act inserted a definition of "Kakadu National Park" in s 3 of the Conservation Act. This defined Kakadu as meaning "the area for the time being" declared under s 7 of the Conservation Act to be the park of that name. The consequence was that, by the enactment of the 1987 Act, the area comprised within Kakadu was given an ambulatory meaning for the purposes of s 10(1A) of the Conservation Act and s 7 of the 1987 Act. The later Proclamations expanded the area covered by the definition of Kakadu. In so far as there was an acquisition of property of Newcrest, this was something which came about "by reason of" the enactment of the 1987 Act. Accordingly, s 7 thereof applied, according to its terms and "notwithstanding" anything in the Self-Government Act.
The litigation
In 1992, Newcrest commenced an action in this Court in which it sought a declaration that the extension of the area of Kakadu by the Proclamations and the provisions of the Conservation Act under which they were made are invalid. Newcrest also sought a declaration of its entitlement to exercise all rights granted by the relevant mining tenements and such further or other order as this Court deemed fit. The Commonwealth was the first defendant. The second defendant was the Director.
On 8 October 1992, this Court made an order remitting to the Federal Court the part of the action that excluded issues of invalidity by reason of s 51(xxxi) of the Constitution in its application to s 122 of the Constitution.
In the Federal Court, BHP was added as second applicant[204]. Issues were agitated as to the effect of the provisions of the Conservation Act, the Self-Government Act, the 1939 Ordinance and the 1980 Act. These and other issues of estoppel, election, waiver and related matters were tried by French J. After a lengthy trial, his Honour delivered judgment on 3 November 1993[205].
French J held that the mining leases were held from the Commonwealth, not from the Northern Territory; that the Commonwealth was precluded by its conduct from asserting that the transfer of the leases by BHP to Newcrest was ineffective; that the interest of the Commonwealth in any minerals under the land comprising Kakadu was subject to the rights enjoyed by Newcrest and BHP under the mining leases; that, with one exception (MLN 19), the mining leases had been validly renewed; and that, to the extent that the mining leases had not been validly renewed, the Commonwealth was not precluded from asserting the invalidity of those leases. His Honour gave liberty to apply for further directions as to the disposition of the action.
On appeal to the Full Court of the Federal Court[206], it was held that the orders made by French J should be set aside. The majority of the Full Court held that at the respective times of the Proclamations MLN 19, MLNs 23-28 and MLNs 751-756 were no longer in force because they had not been validly renewed. The declarations made by French J were replaced by a narrower declaration, namely that Newcrest was the lawful lessee of mining leases MLNs 78-89 but that this was subject to the operation of the Proclamations made under the Conservation Act. MLNs 78-89 expired on 31 December 1994. The grant of special leave to appeal to this Court from the orders of the Full Court was limited so as to exclude any argument that the respondents are estopped or in any other way precluded from arguing that the mining leases or any of them were not renewed. By order of the Chief Justice made 21 May 1996, there was reserved for the consideration of the Full Court the constitutional question which had been excepted from the remitter to the Federal Court.
Newcrest and BHP challenge the decision of the Full Court upon various issues of statutory construction, with the objective of establishing their entitlement to mining leases in addition to MLNs 78-89. Upon the outcome of the constitutional question depends the retention by the appellants of the relief they obtained in the Full Court with respect to MLNs 78-89. The Commonwealth and the Director rely upon an answer upon the constitutional question which is favourable to them to deny any prospect of success by the appellants in obtaining relief with respect to the other mineral interests. The respondents also, by Notice of Contention, seek to support the Full Court decision by non-constitutional arguments directed particularly to MLN 19 and MLN 24.
The threshold constitutional question is whether any acquisition by the respondents of property which was effected by the Proclamations, the enabling provisions thereof and s 10(1A) of the Conservation Act operated free from any constitutional imperative that the acquisition be accompanied by the provision of just terms. On the footing, mentioned earlier in these reasons, that the legislation in question is supported by s 122, the question thus becomes one of the interrelation between par (xxxi) of s 51 and s 122 of the Constitution. To this aspect of the case I first turn.
Section 51(xxxi) and s 122 of the Constitution
Section 51(xxxi) is one of several provisions in the Constitution for the acquisition or vesting of property with a requirement of compensation. Section 69 provides for the transfer to the Commonwealth of certain departments of the public service in each State. Section 85 deals as follows with the consequences of such transfer:
"When any department of the public service of a State is transferred to the Commonwealth -
(i) All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary:
(ii) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth:
(iii) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament:
(iv) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred."
In one of its operations (s 85(i)), the section of its own force vests certain property of a State in the Commonwealth and in another (s 85(ii)), it empowers the Commonwealth to acquire certain property of a State. But in either case this is subject to the obligation of the Commonwealth to compensate the State, with the mode of compensation, in default of agreement, to be determined under laws to be made by the Parliament (s 85(iii)).
Broader provision for the acquisition of property from any State is made by s 51(xxxi), but here legislation is essential. There is no vesting of property by force of the Constitution itself. Further, par (xxxi) goes beyond the acquisition of property by one polity from another, by providing for the acquisition of property "from any State or person". The appellants say that they are persons to which the provision is directed, that there has been an acquisition of property and that they have been denied just terms.
Section 51(xxxi) of the Constitution states:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".
In Mutual Pools & Staff Pty Ltd v The Commonwealth[207], Mason CJ said:
"[T]he effect of s 51(xxxi) when read in conjunction with the other legislative powers of the Parliament is that, subject to any contrary intention, it forbids the making of laws with respect to the acquisition of property from any State or person for a relevant purpose on terms that are not just[208]. Consequently, a law with respect to the acquisition of property must comply prima facie with the requirement of just terms."
The result is, as his Honour put it[209], that "the other legislative powers reposed in the Parliament must be construed so that they do not authorize the making of a law which can properly be characterized as a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms". Mason CJ qualified that general statement with the words "apart from s 122 which stands in a separate position"[210] and added in a footnote "[s]ee Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564 at 570". This reflected the current state of authority, which had not been challenged by counsel in Mutual Pools.
The appellants now seek to challenge Teori Tau v The Commonwealth[211], and to remove the qualification to which Mason CJ referred. They seek to establish that, while s 122 does authorise the making of a law with respect to the acquisition on just terms of property for the government of any territory, it does not authorise the making of a law which does not provide for just terms. In this way, they submit, s 51(xxxi) operates "to reduce the content"[212] of the grant of legislative power in s 122, so that there is "excluded or abstracted"[213] from s 122 the power to make laws "without the safeguard"[214] of just terms.
Section 122 states:
"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."
A power to make laws "for the government" of a territory on its face includes laws exercising a right of "eminent domain". Before the establishment of the Australian federation, the United States Supreme Court had decided that, in respect of lands in the territories, Congress had such a legislative power, subject to the requirement of "just compensation" imposed by the Fifth Amendment to the Constitution[215]. In Australia, the Parliament of the Commonwealth has proceeded on a corresponding footing[216].
In recent times, laws have been made by the Parliament to oblige territory legislatures to provide just terms. Section 50(1) of the Self-Government Act provides that the power of the Legislative Assembly conferred in broad terms by s 6 thereof "does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms". The Legislative Assembly for the Australian Capital Territory has, in general, no power to make laws with respect to the acquisition of property otherwise than on just terms: Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23(1)(a), s 23(2).
The appellants contend that, were it not for the obstacle placed in their path by the decision in Teori Tau v The Commonwealth, consideration of the Constitution as a whole would indicate an answer favourable to their case. By its very terms, par (xxxi) appears to draw in all powers of the Parliament to make laws, from whatever source in the Constitution they are derived. The terms of the acquisition power refer, for example, to an acquisition associated with the exercise of the defence power in s 51(vi) as much as to an acquisition related to the exercise of legislative power under s 122. The appellants submit that "[a]lways the Constitution remains the text"[217].
Section 51(xxxi) speaks of "[t]he acquisition of property ... from any State or person" not of the acquisition of property in a State from that State. A State may own property situated outside its territory. Nor does s 51(xxxi) speak of the acquisition of property "from any person in a State". Further, par (xxxi) confers a power "for any purpose in respect of which the Parliament has power to make laws" and one such purpose is found in s 122 (emphasis added).
There is, the appellants submit, no relevant distinction between the text of s 122 and that of s 51 in the application of par (xxxi) to other heads of power in the Constitution. These submissions should be accepted.
This case does not involve any operation of par (xxxi) in respect of the compulsory acquisition by one polity of the property of another polity. It is concerned with what, perhaps, has become the primary operation of par (xxxi). This is the making of laws by the Parliament for the compulsory acquisition of property "from any ... person", and not necessarily by the Commonwealth and its instrumentalities[218]. At least in this operation, par (xxxi) has assumed "the status of a constitutional guarantee of just terms" and therefore "is to be given the liberal construction appropriate to such a constitutional provision". These propositions were so expressed in the joint judgment given in 1984 by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Clunies-Ross v The Commonwealth[219], and were repeated by Mason CJ, Brennan, Deane and Gaudron JJ in Australian Tape Manufacturers Association Ltd v The Commonwealth[220].
This liberal construction means, for example, that the guarantee applies to the indirect acquisition of what Dixon J called "the substance of a proprietary interest"[221]. In Bank of NSW v The Commonwealth[222], the Banking Act 1947 (Cth) provided for the undertaking of the private banks to be taken into the hands of agents of the Commonwealth, so that "in a real sense, although not formally", the banks and their shareholders were effectively deprived of "the reality of proprietorship". The Court held that the statute contravened par (xxxi).
However, par (xxxi) applies only to acquisitions of a kind that permit of just terms. There are laws in respect of which "just terms" is an incongruous notion. Thus, laws imposing a fine or a forfeiture do not involve acquisitions that permit of just terms[223]. Otherwise, and as a general proposition, when par (xxxi) applies to another subject-matter of the legislative powers of the Commonwealth, it is to be regarded as limiting legislative power with respect to the acquisition of property for that purpose[224]. From this proposition that the operation of par (xxxi) is to confine the content of other grants of legislative power there follows a further proposition. The operation of the paragraph is necessarily subject to "any contrary intention either expressed or made manifest by the words or content of those other grants of power" that they necessarily encompass acquisition of property without "the quid pro quo of just terms"[225]. The power in s 51(ii) to make laws with respect to taxation is an example[226].
This point was further developed in the joint judgment of six members of the Court in Nintendo Co Ltd v Centronics Systems Pty Ltd as follows[227]:
"It is well settled that s 51(xxxi)'s indirect operation to reduce the content of other grants of legislative power is through the medium of a rule of construction, namely, that 'it is in accordance with the soundest principles of interpretation to treat' the conferral of 'an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification'[228]. That operation of s 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law[229]."
Section 51 confers power on the Parliament "to make laws for the peace, order, and good government of the Commonwealth with respect to" the enumerated heads of power. With certain exceptions referred to later in these reasons, each of these answers the description in par (xxxi) of "any purpose in respect of which the Parliament has power to make laws". Section 122 empowers the Parliament to make laws "for the government of any territory". The term "for", to adapt the words of Wilson J in Attorney-General (Vict); Ex rel Black v The Commonwealth[230] in construing s 116 of the Constitution, speaks of the purpose of the law in terms of the end to be achieved, namely the government of the territory in question. This identifies a legislative "purpose" within the meaning of par (xxxi). Such a conclusion is consistent with the following observations of Dixon CJ in Lamshed v Lake[231]:
"To my mind s 122 is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the Territory. The words 'the government of any territory' of course describe the subject matter of the power."
The addition of the words "of the Commonwealth" to the phrase in s 51 "laws for the peace, order, and good government" requires further attention. Their presence does not confine the heads of power in s 51 so as to restrict the postal power to an operation with respect to the States, the borrowing of money on the public credit of the Commonwealth to borrowing in States, the census to those found in States, and the currency, coinage and legal tender to that circulating or proffered in the States[232]. Rather, the government referred to in the phrase "laws for the peace, order, and good government of the Commonwealth" is that of the body politic wherein and for which the laws made by the Parliament have the binding force specified in covering cl 5. The body politic comprises "the courts, judges, and the people of every State and of every part of the Commonwealth". Territories are parts of the Commonwealth within the meaning of covering cl 5[233].
The basic proposition is that each provision of the Constitution, including s 122, is to be read with other provisions in the same instrument[234]. Accordingly, and at least prima facie, par (xxxi) of s 51 and s 122 should be read together. Section 122 is not to be torn from the constitutional fabric.
In considering the operation of s 122, the starting point is the identification of "[t]he Parliament" which is to make the laws mentioned therein. That necessarily refers the reader to Ch I of the Constitution. The phrase in s 122, which is vital to the status of the Northern Territory, "surrendered by any State to and accepted by the Commonwealth" is a reference to s 111. The reference to "the extent" of "the representation of [a] territory in either House of the Parliament" is to be read with the phrase in s 121 "the extent of representation in either House of the Parliament". Section 121 does not contain the additional reference in s 122 to the terms on which representation may be allowed, a matter treated as highly significant by Mason J when upholding the validity under s 122 of the Senate (Representation of Territories) Act 1973 (Cth) in Western Australia v The Commonwealth[235]. His Honour proceeded on the footing that the Constitution is to be treated as one coherent instrument for the government of the Federation and said[236]:
"Just as s 122 requires to be read with Ch I so also account must be taken of s 122 in the interpretation of ss 7 and 24."
Moreover, this Court more recently has held in Capital Duplicators Pty Ltd v Australian Capital Territory[237] that the power conferred by s 122 upon the Parliament to create legislative institutions for a territory is limited by a requirement beyond that in s 122 itself that the law be one for the government of the territory. The nature of the taxation power (s 51(ii)) and the bounties power (s 51(iii)) and the evident intention of other provisions of the Constitution to create a type of free trade area comprising the geographical area of the Commonwealth require some qualification to the content of s 122. The result is that the Parliament may not establish a territorial legislature with the authority to impose duties of excise within the meaning of s 90[238]. In that case, the majority of the Court determined that the Territory legislation in question was enacted pursuant to a new legislative power and by a separate legislative body armed with general legislative authority. The Territory law was not made in exercise of the legislative power of the Commonwealth. In reaching that conclusion, Brennan, Deane, Toohey and Gaudron JJ relied upon the analysis to the same effect, with respect to the Northern Territory, by Wilson J in R v Toohey; Ex parte Northern Land Council[239].
It is true in at least two respects that the legislative power conferred by s 122 may be "of a different order"[240] to those concurrent heads of legislative power conferred in s 51. Nevertheless, as will be seen, this does not detract from the appellants' case. The first proposition concerning s 122 (which itself requires some qualification) is that, as Barwick CJ pointed out in Spratt v Hermes[241], the power conferred by s 122 "is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States". Nevertheless, s 122 empowers legislation which may operate inside the boundaries of the States[242]. The result is that out of s 122 there may arise questions as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States. Barwick CJ recognised this in Spratt v Hermes[243]. Further, as with laws made by the Parliament in the exercise of concurrent powers, by virtue of s 109 of the Constitution a law validly made under s 122 prevails over an inconsistent State law[244]. In Spratt v Hermes[245], Barwick CJ said of the expression "law of the Commonwealth" (upon which s 109 turns), that it "embraces every law made by the Parliament whatever the constitutional power under or by reference to which that law is made or supported".
The second distinctive aspect of s 122 concerns the use of the phrase "for the government of any territory" rather than "for the peace, order, and good government of any territory". In a sense, the longer expression is "condensed" to the shorter[246]. Yet the phrase "for the government of any territory" emphasises that the Parliament may prescribe the constitutional arrangements for the government of a territory[247]. In Berwick Ltd v Gray, Mason J, with whom Barwick CJ, McTiernan and Murphy JJ agreed, said[248]:
"[The power] is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus".
This latter consideration itself requires qualification as a result of the denial in Capital Duplicators Pty Ltd v Australian Capital Territory[249] of competence of a territorial legislature, set up by a law made under s 122 of the Constitution, to impose duties of excise within the meaning of s 90. Nevertheless, the establishment of territorial political institutions is of some significance for any operation par (xxxi) may have in relation to s 122. The paragraph is directed to the acquisition of property from any State, not from any body politic constituted for a territory by a law made under s 122. However, the Parliament, by whose law the body politic in question has been created consistently with s 122, may also subject that body politic to the exercise of the power of the Parliament of the Commonwealth to acquire property from it. The provisions, if any, for compensation will be a matter for the Parliament but no requirement of just terms will flow from the Constitution. The Lands Acquisition Act 1989 (Cth) does authorise the acquisition of the interest of a Territory in land which is the property of a Territory, but provides for compensation.
I conclude (i) that, upon its proper construction, in empowering the Parliament to make laws "for" the government of any territory, s 122 identifies a purpose, in terms of the end to be achieved, and (ii) that, within the meaning of par (xxxi), s 122 states a purpose in respect of which the Parliament has power to make laws. The question then becomes whether there is either expressed or made manifest by the words or content of the grant of power in s 122 sufficient reason to deny the operation of the constitutional guarantee in par (xxxi). There is none.
First, a construction of the Constitution which treats s 122 as disjoined from par (xxxi) produces "absurdities and incongruities"[250]. This is so particularly with respect to a territory such as the Northern Territory, the area of which, at federation, was within a State. As is made clear in covering cl 6 of the Constitution, upon federation what was then identified as "the northern territory of South Australia" was included within an "Original State" and thus was part of the Commonwealth at its establishment[251]. The Constitution, notably s 111[252], should not readily be construed as producing the result that the benefit of the constitutional guarantee with respect to the acquisition of property in what became the Northern Territory was lost. In Spratt v Hermes[253], Menzies J said:
"I do not understand how the surrender and acceptance authorized by s 111 of the Constitution can take the area affected outside 'the Federal System'. To my mind, the notion that an area which is geographically within Australia and is part of the Commonwealth of Australia is outside 'the Federal System' should be given no further countenance. Surely, if the phrase 'the Federal System' is to be used to define some legal concept, it can but mean the system of government established by the Constitution itself".
Secondly, many of the powers conferred upon the Parliament by s 51 (such as par (xxix)) will be susceptible of exercise in respect of matters and things in or connected with the territories, and on its face par (xxxi) will apply to the exercise of these powers. The Conservation Act itself provides an example. One of the objects in making provision for the establishment of parks under s 7 thereof is the facilitation of the carrying out by Australia of obligations, or the exercise by Australia of rights, under agreements between Australia and other countries (s 6(1)(e)). In the present case the Commonwealth admitted on the pleadings that an object of the making of the Proclamations was to facilitate the performance by Australia of its obligations, or the exercise of rights, under the Convention for the Protection of the World Cultural and Natural Heritage[254]. It is to give to the constitutional guarantee a capricious operation to exclude from it so much of the law which is in question in the particular case as is or might have been concurrently supported by s 122.
Thirdly, as already indicated, the criterion of validity of a law made in reliance upon s 122 is that it be for the government of a territory. A law may meet that criterion without operating solely upon property situated in that territory. As I have stated above, s 122 authorises the Parliament to make laws the operation of which extends to the States. Further, it would appear that the power of the Parliament to establish territorial legislatures extends to empowering such a legislature itself to make laws with extraterritorial operation, at least within Australia[255]. It would be a curious result if just terms were constitutionally unnecessary for the compulsory acquisition of land in a city in one of the States for the purposes of a tourist bureau for a territory. The owners of property in a State would be deprived of the constitutional guarantee where the property was acquired for the purpose of the government of a territory; the Commonwealth would be in a position to impose upon those holding property in a State a burden from which the Constitution was designed to protect them[256].
Fourthly, the constitutional guarantee speaks of "property", which "is the most comprehensive term that can be used"[257]. It includes choses in action and other incorporeal interests[258]. The situs of such interests may be neither fixed nor, at any given time, readily susceptible of identification. For example, at common law, and in the absence of statutory provision, bearer bonds and bearer stock, passing by delivery[259], appear to be located where the instrument of security then is to be found[260]. Where there are two or more registers where a transfer of shares might be registered, the shares are situated where they could most effectively be dealt with having regard to business practice[261], or where the shareholder in question would be likely to choose a market and place of transfer when desiring to deal with the shares[262].
In addition, incorporeal property, such as a patent, design or registered trade mark, which exists by virtue of a grant from the Commonwealth cannot be regarded as locally situate in any particular State or territory of the Commonwealth. Rather, such property is locally situate in Australia. Fullagar J so held in In re Usines de Melle's Patent[263]. Accordingly, the constitutional guarantee cannot be coherently construed in a universe of legal discourse which contains a dichotomy between situation of property in a State and situation of property in a territory.
These considerations support a construction of the Constitution that the property referred to in par (xxxi) is that situated in Australia, whether by reason of the physical location of any land or chattel within the area of a State or territory, or the situation of any incorporeal interest (as a matter of legal analysis and classification and in the sense identified by Fullagar J) in Australia or in a State or territory thereof. The property which is the subject of the constitutional guarantee should be identified in this way.
The above considerations indicate that the legislative power conferred by s 122 is not immunised from the operation of the constitutional guarantee. Nevertheless, the Commonwealth referred to various matters which it submitted supported a construction which excluded from the operation of par (xxxi) any law of the Parliament which was supported, solely or concurrently with another head of power, as a law made in exercise of the power conferred by s 122 of the Constitution.
Section 122 is placed in Ch VI of the Constitution, which is headed "NEW STATES". Section 51 is found in Ch I, which is headed "THE PARLIAMENT". However, in Spratt v Hermes[264], Barwick CJ said, with reference to s 122, that it was "an error to compartmentalize the Constitution, merely because for drafting convenience it has been divided into chapters". During the Third Session of the Convention Debates at Melbourne in 1898, there was an exchange between Deakin and Barton as to whether what became s 122 should be placed in what became s 52 (cl 53 of the Draft Bill), as an exclusive power of the Parliament. Their exchange concluded[265]:
"Mr BARTON - It was thought advisable to leave that provision regarding territories where it is -- under the head of "New States" -- because it refers particularly to that kind of territory which afterwards develops into a new state.
Mr DEAKIN - Yes, but it is an exclusive power, and might as well be placed in the clause relating to exclusive powers.
Mr BARTON - Is it not logically in a better place where it is?
Mr DEAKIN - It is logical where it is, and it would also be logical if included in clause 53. However that is a question for the Drafting Committee."
Indeed, Latham CJ later expressed the tentative view[266]:
"Sec 122, relating to the government of territories, does not use the word 'exclusive,' but the effect of sec 122 is that the Parliament has exclusive power, by virtue of the Constitution, to make laws for the territories to which the section applies. By the operation of sec 52(iii) in relation to sec 122, the Commonwealth Parliament would appear to have power to make laws for the Commonwealth with respect to the government of New Guinea."
It is unnecessary on this occasion to consider whether that view is correct[267]. What is important is the proposition expressed by Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v Australian Capital Territory[268] that it would "be erroneous to construe s 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope".
The Commonwealth submitted (i) that s 122 conferred a power that was "plenary" in nature and (ii) that the construction of the Constitution contended for by the appellants would deny the plenary nature of the power. In Attorney-General of the Commonwealth of Australia v The Queen[269], Viscount Simonds referred to the "plenary power under s 122" and then described that power as "a disparate and non-federal matter". Of that passage, Dixon CJ later observed[270]:
"But the legislative power with reference to the [Northern] Territory, disparate and non-federal as in the subject matter, nevertheless is vested in the Commonwealth Parliament as the National Parliament of Australia; and the laws it validly makes under the power have the force of law throughout Australia. They are laws made by the Parliament of the Commonwealth and s 5 of the covering clauses makes them binding on the courts, judges and people of every State notwithstanding anything in the laws of any State."
The phrase "plenary power" appears first to have entered the constitutional discourse in what was then the British Empire in a trilogy of Privy Council decisions. These concerned respectively the powers of the subordinate legislatures of India[271], Ontario[272] and New South Wales[273]. The phrase "plenary power" was used in the course of rejecting submissions that by reason of those legislatures themselves being delegates of the Imperial Parliament they were incompetent to pass what would now be identified as delegated legislation. These decisions were not concerned with the respective legislative powers inter se of the components of a federation. Nevertheless, they were relied upon as assisting in the construction of the Australian Constitution in the joint judgment in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd[274]. They were used as a step in the reasoning which denied to the States, in the absence of an explicit reservation in the Constitution, immunity from the operation of Commonwealth legislation enacted pursuant to an express grant in s 51 of the Constitution. The phrase "plenary power" thus entered Australian federal constitutional law not with reference to s 122, but to emphasise the nature of the grants in s 51[275]. Those grants are nonetheless "plenary" despite the operation of par (xxxi). There is no apparent reason why s 122 should be any the less "plenary" in nature if the constitutional guarantee also is applicable to laws made under that head of power.
The most that can be said of the continued utility of the expression "plenary power" in relation to the Constitution appears in the following passage from the judgment of Jacobs J in Berwick Ltd v Gray[276]. His Honour said:
"The power of the Commonwealth Parliament to legislate upon the subject matters stated in the Constitution is plenary in the fullest sense of that word. Once a law is found to be a law on the particular subject matter and once the subject matter is found to be one of Commonwealth power no other nexus or relationship between the law and the subject matter of power needs to be established. The Parliament is sovereign."
A law said to be supported by exercise of the "plenary" power in s 122 must still display the necessary nexus or relationship with the subject-matter of power, namely "the government of any territory". A law providing for the recruitment in the Territory of personnel for the defence forces would not be a law for the government of the Territory. It would be a law for the defence of the Commonwealth and be supported by s 51(vi).
That s 122 is not without limits upon the laws it authorises is further illustrated by Davis v The Commonwealth[277]. The Australian Bicentennial Authority was a company incorporated in the Australian Capital Territory with the primary object of planning and implementing celebrations to commemorate the 1988 Bicentenary. Section 22 of the Australian Bicentennial Authority Act 1980 (Cth) made it an offence for a person without the consent of the Authority to use certain expressions and s 23 provided for the forfeiture to the Commonwealth of articles or goods by means of which or in relation to which there had been committed an offence against s 22. Mason CJ, Deane and Gaudron JJ said of s 122[278]:
"That head of legislative power would extend to the incorporation of a corporation in the Australian Capital Territory and to the protection of its corporate name and symbols. But the Territories power on its own cannot sustain the regime which ss 22 and 23 attempt to create."
In this case the Commonwealth also submitted that significant consequences, favourable to the construction it supported, flowed from the presence in s 51 of the phrase "subject to this Constitution" and its absence from s 122. This phrase appears in various provisions of Ch I[279] and Ch V[280]. The processes and procedures for the making of laws by the Parliament in pursuance of the powers conferred by ss 51 and 52 are subjected to the requirements as to manner and form and specific content imposed by provisions such as s 53 (the respective powers of the two Houses of Parliament), s 54 (appropriation bills), s 55 (tax bills) and s 57 (disagreement between the Houses).
The phrase "subject to this Constitution" also serves in s 51 to emphasise that the subject-matter with respect to which the Parliament otherwise may make laws under s 51 is restrained by provisions such as ss 92, 99, 100 and 116 of the Constitution. But the same result would follow from the operation of the prohibitions in which those sections are expressed without the confirmatory warning in s 51 itself. No particular conclusion follows in this respect from the presence (in s 51) or the absence (from s 122) of the phrase "subject to this Constitution". It can hardly be suggested that s 122 operates other than subject to the Constitution, and, in particular, that it is not to be read with the Constitution as a whole.
It is true that, as authority presently stands, limitations imposed by s 55 do not apply to laws supported by s 122[281]. Nevertheless, territory representatives are subject to the ineligibility and disqualification provisions of ss 43, 44, 45 and 46 of the Constitution[282] and in Spratt v Hermes[283] Barwick CJ said there seemed to be no reason why a double dissolution should not result from a disagreement between the two chambers upon a proposed law founded upon s 122.
Decisions which appear to disjoin s 122 from the operation of the Constitution as a whole were delivered before the Papua New Guinea Independence Act 1975 (Cth). The existence of so large and comparatively populous external territory appears to have been a consideration of some significance. For example, in R v Bernasconi[284], Isaacs J referred to the acquisition of German New Guinea as follows:
"If, for instance, any of the recently conquered territories were attached to Australia by act of the King and acceptance by the Commonwealth, the population there, whether German or Polynesian, would come within s 122, and not within s 80.[285] Parliament's sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system."
In Administration of Papua and New Guinea v Daera Guba[286] Barwick CJ said:
"I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connexion (as to which see generally Milirrpum v Nabalco Pty Ltd[287], and more recently Calder v Attorney-General (British Columbia)[288] in the Supreme Court of Canada), the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter.
It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognised a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land."
Neither the identification of s 122 as conferring "plenary power" nor the absence from the section of a phrase such as "subject to this Constitution" supplies the necessary contrary intention to displace what otherwise, upon a textual analysis of the Constitution as a whole, is the operation of the constitutional guarantee upon laws made for the government of the Northern Territory.
Teori Tau v The Commonwealth
It remains to consider the obstacle to that conclusion presented by the decision in Teori Tau v The Commonwealth[289]. Before turning to consider that question and the application made by the appellants, if necessary for their success, to re-open the case, reference should be made to relevant changed circumstances since that judgment was given in 1969.
First, there has been relevant amendment of the Constitution itself. Since 1977, s 128 has provided for the submission of proposed laws for the alteration of the Constitution to electors of Territories in respect of which there is in force a law allowing their representation in the House of Representatives[290]. Secondly, the validity of the Senate (Representation of Territories) Act 1973 (Cth) was upheld in Western Australia v The Commonwealth[291] and, with respect to the House of Representatives, the validity of s 6 of the Northern Territory Representation Act 1922 (Cth) and s 18 of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth) were upheld in Queensland v The Commonwealth[292]. Thirdly, there have been other significant decisions of this Court. I have referred to Capital Duplicators and Davis v The Commonwealth. I also noted the acceptance in 1984 in the joint judgment of six members of the Court in Clunies-Ross of the proposition that par (xxxi) is to be given the liberal construction appropriate to a constitutional guarantee, and to the repetition of that proposition in more recent decisions of the Court referred to earlier in these reasons. So much may now seem but a statement of the obvious. This was not always the case. The construction of s 116 of the Constitution provides an example from the fairly recent past[293]. In Attorney-General (Vict); Ex rel Black v The Commonwealth, Wilson J said[294]:
"The plaintiffs' plea for a broad construction overlooks the fact that we are dealing with a clause which does not grant power, but denies it."
Mason J said[295]:
"Although in some circumstances it is permissible to construe a grant of legislative power so as to apply it to things and events coming into existence and unforeseen at the time of the making of the Constitution, so that the operation of the relevant grant of power in the Constitution enlarges or expands, a constitutional prohibition must be applied in accordance with the meaning which it had in 1900. As a prohibition is a restriction on the exercise of power there is no reason for enlarging its scope of operation beyond the mischief to which it was directed ascertained in accordance with the meaning of the prohibition at the time when the Constitution was enacted."[296]
These developments have "overtaken", in the sense of that term used by Aickin J[297], the reasoning in Teori Tau and the assumptions upon which that reasoning appears to rest.
Any determination of the present standing of the decision in Teori Tau involves the question whether it formed part of, or developed from, a consistent body of authority[298]. Consideration of what had been decided 11 years before in Lamshed v Lake indicates the contrary. In that case, s 10 of the 1910 Act was in issue. It provided that trade, commerce and intercourse between the Northern Territory and the States, whether by means of internal carriage or ocean navigation, was to be absolutely free. The dispute was whether this provision applied to prevent South Australian legislation, which prohibited carriers from using certain roads without a licence, from applying to a carrier in the course of a journey from Adelaide to Alice Springs. The Court (Dixon CJ, Webb, Kitto and Taylor JJ; McTiernan and Williams JJ dissenting) held that s 10 did so apply. The Court rejected the submission by South Australia that, in exercising the legislative power conferred by s 122 of the Constitution, the Parliament was in the position of a local legislature in and for the relevant territory and that its power was limited to the area of that territory. Section 10 had a valid operation in respect of acts, matters and things in South Australia and was a "law of the Commonwealth" within the meaning of s 109 of the Constitution.
Subsequently, Spratt v Hermes determined that a court of a territory having the appropriate local jurisdiction may enforce in relation to acts occurring within that territory a law made by the Parliament upon a subject-matter falling within s 51 of the Constitution and intended to operate throughout the Commonwealth. Further, as I have indicated, Barwick CJ in Spratt v Hermes[299] accepted as a corollary of the holding in Lamshed v Lake that laws made for a territory may operate "into a State", the possibility of inter se questions respecting the legislative powers of the Commonwealth and the States arising out of the exercise of power under s 122.
Accordingly, at the time Teori Tau fell for decision, prior and recent determinations of this Court meant that (a) whatever might be meant by the description of s 122 as conferring legislative power which is "plenary" in nature, s 122 is not the sole source of the power of the Parliament to legislate with respect to a territory and, on the other hand, (b) whatever might be meant by describing s 122 as concerned with "non-federal" matters, a law made in exercise of that power may operate in the States as a law of the Commonwealth which attracted the operation of s 109 of the Constitution.
I turn now to consider the reasoning in Teori Tau. The plaintiff sued on behalf of himself and members of a kinship group of inhabitants of the Territory of Papua and New Guinea. They claimed to be entitled to land in respect of which legislation in force in that Territory purported to vest certain minerals in the Crown. The plaintiff sought to establish that the relevant legislation was invalid as providing for the compulsory acquisition of property without just terms for that acquisition. The matter came before the Full Court on a special case referred by Barwick CJ. After hearing submissions for the plaintiff, and without calling upon the defendants, the Court adjourned for a short time and the ex tempore reasons for judgment of the Court were then delivered by Barwick CJ. There was in those reasons neither discussion nor analysis nor, indeed, citation, of previous authority.
The reasoning contains two related propositions with which, with respect, no one would disagree. The first identifies the issue as "a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more"[300]. The second is that "the Constitution must be read as a whole and as a consequence, s 122 be subject to other appropriate provisions of it"[301]. However, this should have served to highlight the issue whether there was any good reason not to accept the ordinary reading of par (xxxi) as embracing a purpose being law-making for the government of a territory.
Barwick CJ identified[302] the substance of the submissions for the plaintiff as being (a) "because the power given by s 51(xxxi) is so ample as the decisions of this Court show, s 122 should not be construed as conferring a power to make laws for the acquisition of property" and (b) that "s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth".
Those submissions did not fully reflect the understanding of par (xxxi) which has been developed in subsequent decisions. I referred to those developments earlier in these reasons. In particular, the constitutional guarantee applies only to acquisitions of a kind that permit of just terms and, further, where it does operate, it does so by reducing the content of the other grants of legislative power.
Barwick CJ stated as follows the issue for decision[303]:
"The question we have to decide is whether the power to make laws for the government of a territory of the Commonwealth, whether it be the Australian Capital Territory, the Northern Territory or any other territory such as the territories beyond the mainland of Australia, as for example the Territory of Papua and New Guinea or Norfolk Island, includes a power akin to that possessed by the States of the Commonwealth to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just." (emphasis added)
The ordinary, if not the primary, meaning of "akin" is "similar". Similarity is no doubt a matter of opinion and degree. However, the paramountcy given by s 109 of the Constitution to laws of the Commonwealth made in exercise of the power conferred by s 122 renders that power different in nature and quality from the legislative power of any State. Given the permissible reach of laws made under s 122, the question, from the viewpoint of the States and those owning property in the States, might have been stated more forcefully as one whether it was open to the Commonwealth to acquire property in a State, without compensation, in reliance upon a law based upon s 122 where the Commonwealth had exercised or might have exercised in the State other legislative powers which undoubtedly would attract the operation of par (xxxi). In the terms of the Constitution itself, the true question was whether the phrase in par (xxxi) "any purpose in respect of which the Parliament has power to make laws" extends to the power of the Parliament under s 122 to "make laws for the government of any territory".
The immediate steps by which Barwick CJ reached the conclusion adverse to the plaintiff in Teori Tau appear to have been the following[304]:
(i) "Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth" (emphasis added). More accurately, s 122 is a source of such power, as the holding in Spratt v Hermes had indicated.
(ii) The grant of legislative power in s 122 "is general and unqualified ... plenary in quality and unlimited and unqualified in point of subject matter". I have referred to the unhelpful circularity inherent in the word "plenary" in such a setting. The subsequent decision in Capital Duplicators denies any proposition that the grant in s 122 is "unlimited and unqualified in point of subject matter". Moreover, in the absence of par (xxxi), the power to acquire property compulsorily would probably have been regarded as forming an incident of "almost every other power which is expressly granted by s 51"[305], just as much as it does of s 122. Whether in this respect the grant in s 122 is unlimited and unqualified was the question in issue.
(iii) Whilst s 51 "is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States", on the other hand s 122 "is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power". Nevertheless and as had been indicated by Barwick CJ in Spratt v Hermes[306], questions may arise with respect to the valid exercise of power under s 122 just as much as they may arise under s 51. Moreover, laws made under s 122 are laws of the Commonwealth for the purposes of s 109. That had been established by Lamshed v Lake.
The result is that the reasoning in Teori Tau at each stage is now to be seen as flawed, whether by reason of then established doctrine or by reason of later constitutional developments and decisions of this Court. A consideration sometimes given for adhering to past authority, whatever its correctness, is the inconvenience that would be caused by disturbing the reliance of governments, citizens and corporations upon the Court continuing to adhere to that authority. However, Teori Tau has not been the subject of more recent challenge, at least, it would appear, partly because the legislation of the Parliament and of the territorial legislatures has provided for just terms. This litigation, if the appellants are correct in their construction of the laws in question as effecting an acquisition in the constitutional sense, has arisen out of a departure from legislative practice. I referred earlier in these reasons to legislation indicative of that practice to place those with property in a territory in no different position as regards the laws of the Commonwealth to property holders in the States.
The Minerals (Acquisition) Ordinance 1953 (NT), by force of s 3, vested in the Crown in right of the Commonwealth all minerals not then already the property "of the Crown or of the Commonwealth". Section 4 obliged the Commonwealth to compensate those whose interests were acquired by s 3. There is a dispute between the parties as to whether the overruling of Teori Tau would have any significant consequences today, by reason of the application of the constitutional guarantee to the declaration by s 5 of the Petroleum (Prospecting and Mining) Ordinance 1954 (NT) of all helium and natural gas on or below the surface of any land in the Northern Territory to be the property of the Commonwealth.
The Commonwealth and the Director contended that the application of s 51(xxxi) to reduce the content of the legislative power conferred by s 122 "would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the [Territory] since 1911 to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law". Such apprehensions are not well founded. The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation[307]. Secondly, legislation such as that considered in Mabo v Queensland[308] and Western Australia v The Commonwealth (Native Title Act Case)309, which is otherwise within power but is directed to the extinguishment of what otherwise would continue as surviving native title (or which creates a "circuitous device" to acquire indirectly the substance of that title[310]), may attract the operation of s 51(xxxi)[311]. However, no legislation of that character, with an operation in the Territory, was pointed to in the submissions in this case.
Leave to reopen Teori Tau is sought by the appellants who are supported in this by the Northern Territory. Leave should be given. Teori Tau did not rest upon any principle carefully worked out in a succession of cases[312]. Rather, it is contrary, at least as regards this tenor, to the reasoning which underlay Lamshed v Lake and Spratt v Hermes. Where the question at issue relates to an important provision of the Constitution which deals with individual rights, such as s 51(xxxi) or s 117, the "Court has a responsibility to set the matter right"[313]. Ultimately, it is the Constitution itself which must provide the answer[314].
Reference has been made to Teori Tau in discussion in subsequent decisions of this Court of the scope of s 51(xxxi)[315], but in contexts where neither its correctness nor its direct application was in issue. As I have indicated, Teori Tau does not appear to have been significantly acted upon by the Parliament or territorial legislatures. It did not represent a fully considered decision which was reached after full argument by both sides. It has been overtaken by subsequent developments.
Once leave be given, it follows that Teori Tau should no longer be treated as authority denying the operation of the constitutional guarantee in par (xxxi) in respect of laws passed in reliance upon the power conferred by s 122.
Laws not supported solely by s 122
There is an additional path to the conclusion that the constitutional guarantee applies in this case. I have referred to the support in the external affairs power for the legislation which conferred the power to make the Proclamations. The matter is further developed in the reasons of Gaudron J. I concluded that it would be an odd result if there was excluded from the operation of the constitutional guarantee so much of a law as was supported both by s 122 and by one or more heads of power outside s 122.
Further, I agree with Gaudron J, for the reasons she gives, that the true position is the contrary. That is to say, I agree that where s 51(xxxi) is engaged by a law with respect to, for example, external affairs, it is not disengaged by the circumstance that the law in question also is a law for the government of a Territory.
It remains to consider whether the Commonwealth effected any acquisition of property of Newcrest without the just terms required by the constitutional guarantee. This first requires consideration of the operation of the 1939 Ordinance, the Self-Government Act and the 1980 Act upon the mining tenements which the appellants contend were later acquired by the Commonwealth.
The mining tenements
It is necessary to begin with s 111 of the Constitution pursuant to which what had been the State of South Australia and is now the Territory was surrendered to and accepted by the Commonwealth. Section 111 states:
"The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth."
The result of the operation of s 111 with respect to what became the Territory was that its geographical area was taken out of that of South Australia and, subject to the Constitution, the Commonwealth acquired full sovereignty over the Territory[316]. Radical title over the land in the Territory was an attribute of that sovereignty[317].
Section 122 empowers the Parliament to "make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth". Section 6(1) of the Northern Territory Acceptance Act 1910 (Cth) ("the Acceptance Act") declared the Territory to be accepted by the Commonwealth as a territory under the authority of the Commonwealth. All laws in force in the Territory at the time were continued in force but were subjected to alteration or repeal by or under any law of the Commonwealth (s 7(1)). Section 10 of the Acceptance Act stated:
"All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall ... continue to be held from the Commonwealth on the same terms and conditions as they were held from the State."
The Acceptance Act was accompanied by legislation to provide for the government of the Territory, namely the 1910 Act. Section 21 of the 1910 Act provided for the making of Ordinances having the force of law in the Territory[318]. This provided the foundation for the 1939 Ordinance.
The 1939 Ordinance
Part V of the 1939 Ordinance (ss 39-102) was headed "Mining Leases". Division 1 (ss 39-44) provided for the granting of gold-mining leases over Crown land and Div 2 (ss 45-54) for the granting of mineral leases over Crown land. The term "crown land" was defined in s 7 as meaning "all land of the Crown or of the Commonwealth" but so as to exclude land "lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown".
In Gowan v Christie[319] Lord Cairns described a "mineral lease" as understood by the common law. His Lordship said it was:
"liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil".
With reference to this passage, Windeyer J, in Wade v New South Wales Rutile Mining Co Pty Ltd[320], said of the grant by the Crown of a mining lease of an area of private land that it was "really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties". Kitto J had earlier stated that the common law recognises that a lease which entitles the lessee to work a mine on the demised premises gives the right not only to use the property, but also as part of the same grant the right to appropriate the minerals when severed from the land[321]. Windeyer J also referred in Wade to the practice in Australia, when making Crown grants, to reserve minerals to the Crown as being a keeping back of a physical part of that which otherwise was granted[322].
What became, under the 1980 Act, MLN 19, MLNs 23-28 and MLNs 78-89 had been, in the special sense to which it will be necessary further to refer, mineral leases under the 1939 Ordinance. What became MLNs 751-756 had been gold-mining leases under the 1939 Ordinance.
In referring to the state of the evidence, French J had referred to the limited documentary records concerning the grant of the titles later acquired by Newcrest. His Honour said that, although "no formal leases were executed, the parties seem to have proceeded upon the common assumption that the terms and conditions of the mining leases were as defined in the forms prescribed by reg 102A of the Mining Regulations [(NT)] made under [the 1939 Ordinance]"[323]. As the argument developed in this Court, it became apparent that, in tracing the root of those titles, s 71 of the 1939 Ordinance was of particular importance. In its original form, this stated:
"On the approval or refusal by the Administrator of an application for a lease, notice thereof shall be published in the Gazette, and every such notice shall be prima facie evidence of an agreement by the Administrator to grant the lease, subject to such conditions as may be therein stated, or of the refusal, as the case may be."
The term "lease" was defined in s 7 as follows:
"'lease' means any lease granted or approved under the provisions of this Ordinance or of any Act or Ordinance repealed by this Ordinance".
Section 44 dealt with the consequences of the approval of an application for a gold-mining lease. It stated:
"After the approval of an application for a gold-mining lease, the lessee shall have the exclusive right of mining for gold and other minerals in and on the land demised and every part thereof."
Section 73 provided that on "the lease being approved by the Administrator the lessee and his assigns shall be deemed to have entered into the covenants, and to be subject to the conditions" specified in the section. These included a covenant to pay rent and royalty, and to work the land demised in accordance with the regulations made under s 215 and a condition for forfeiture of the lease on breach of any of the covenants[324]. Section 76 provided for the keeping of books to be called "The Register of Gold-mining Leases" and "The Register of Mineral Leases". There were to be registered therein applications for leases, transfers "and other dealings or transactions". The books and all registered instruments were to be open to public inspection (s 76(2)).
Counsel for the appellants submitted that the provisions of the 1939 Ordinance for the granting by the Administrator of gold-mining leases (s 39) and mineral leases (s 45) and the prescribed forms of grant in the Mining Regulations made under the 1939 Ordinance did not produce the result that Newcrest lacked the necessary root of title in the absence of evidence of any instruments of grant. The state of affairs reflected the practice, consistent with the terms of the 1939 Ordinance set out above, whereby applications were registered and approvals were, in effect, assimilated to grants[325]. This position taken by the appellants was not seriously disputed by the respondents. Indeed, and as will shortly appear, on one branch of their case they relied upon what they asserted were relevant limitations in the terms of the prescribed forms of grant. The appeal should be dealt with on the footing accepted by the parties.
The prescribed forms of grant
The Mining Regulations prescribed particular forms of grant for gold-mining leases granted under s 39 of the 1939 Ordinance and for mineral leases granted under s 45 thereof. For present purposes, both may be treated as having been in the same form. Each was expressed as a grant by the Crown and each contained what was expressed as a proviso in the following terms[326]:
"PROVIDED FURTHER that WE may at any time, without compensation to the lessee, resume possession of any portion of the surface of the land hereby demised for the construction thereon of roads, tramways or railways, including all necessary approaches thereto, or for any other public purpose whatsoever".
In this Court, the respondents submitted that this amounted to an inherent limitation upon that which was granted by the gold and mineral leases, that the Proclamations and supporting legislation did no more than bring about that which had been incipient in the grants themselves, and that, as a consequence, there was no relevant subject-matter to which the constitutional guarantee of acquisition only on just terms might apply.
However, the Proclamations were not expressed as having been made in exercise of any rights conferred upon the grantor of the mining tenements created under the 1939 Ordinance. The terms of the Proclamations base them in the exercise of power conferred by the Conservation Act. It is true that the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed. In Lockwood v The Commonwealth, Fullagar J referred to the[327]:
"settled principle that an act purporting to be done under one statutory power may be supported under another statutory power".
However, what was done by the Proclamations differed markedly from that which was allowed by the proviso in the prescribed forms. The Crown (assuming the Commonwealth may be so regarded for this purpose) did not, in the terms of that proviso, "resume possession ... of the surface of the land" in question for any public purpose. Rather, the Proclamations brought about a result whereby there were acquisitions of the land and the minerals to a depth of 1,000 metres and, by force of s 7(7) of the Conservation Act, there was vested in the Director the interest of the Commonwealth in the land save that in respect of minerals. The settled principle referred to by Fullagar J can have no application to such a case.
The submissions to the contrary made by the respondents should be rejected. This makes it unnecessary to determine whether the objection by the appellants that, in the light of the conduct of the litigation and the failure of the respondents to urge this submission before the primary judge, it is not now open to them to do so.
Renewals under the 1939 Ordinance - MLN 24
The 1939 Ordinance provided for the transfer of leases, with the approval of the Administrator (s 75). Every mining tenement (broadly defined in s 7 so as to include land lawfully held, occupied or used under a lease or an application for a lease) and every share and interest in a mining tenement was to be and to be taken in law to be a chattel interest which, subject to the 1939 Ordinance and the Regulations thereunder, might be transferred and encumbered by the holder thereof (s 145). That was subject to the proviso that no person could acquire any interest under a transfer of a mining tenement held under a miner's right, unless that person held a miner's right. The term of a gold-mining lease (s 42) and a mineral lease (s 49) was not to exceed 21 years from 1 January next preceding the approval thereof. In each case, at expiration of the lease the lessee was given "a right to renew the lease" for a further period of 21 years.
A particular issue arises here concerning what was later, under the 1980 Act, identified as MLN 24. This was the interest treated as granted under the 1939 Ordinance as a mineral lease for the period commencing 11 October 1957 and to expire on 31 December 1977. After the expiry of the original term and after the commencement of the Self-Government Act, the Territory Minister for Mines and Energy gave what was called an approval of the renewal. This occurred on 28 November 1978. Application by BHP had been made by letter dated 15 November 1978 for renewal for a further period of 21 years from 31 December 1978. By letter dated 4 December 1978, the Secretary to the Department notified BHP that because the correct expiry date had been 31 December 1977, rather than 31 December 1978, the renewal was for a period to expire 31 December 1998.
French J concluded[328] that the right to renew MLN 24 had been validly exercised.
Section 49 of the 1939 Ordinance stated:
"The term of a mineral lease shall not exceed twenty-one years from the first day of January next preceding the approval thereof, but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of twenty-one years, subject to the Ordinances and regulations relating to mineral leases in force at the time of such renewal."
Unlike s 75 (dealing with transfers), s 49 did not specify any requirement of approval of renewals. This may also be contrasted with the provisions of Pt IVA (ss 38A-38X) dealing with exploration licences. These had been inserted by s 7 of the Mining Ordinance 1970 (NT). Section 38B(8) provided:
"An exploration licence may be granted or renewed, as the case may be, for such term, not exceeding one year, as the Administrator thinks fit, provided that the total term of the licence, including renewals, does not exceed five years."[329]
The first question of construction of s 49 turns upon the phrase "every lessee shall ... have a right to renew the lease". In R v Mahony; Ex parte Johnson[330], Rich and Dixon JJ explained that the term "to renew" may be used to mean "to obtain an extension of a period" as well as "to extend a period". Where (as is the case with s 49) the renewal is not conditioned upon favourable exercise of a discretion and no provision directs that the renewal be upon application or in a particular form, this suggests that "renewal" means a prolongation not the grant of another licence. What is involved is the exercise of a right of the lessee to a prolongation of the then current period. On one branch of their argument, Newcrest and BHP submit that whatever the contrary basis upon which the 1939 Ordinance was administered, the right of renewal was exercisable by the lessee and required for its effectiveness no approval or other exercise of governmental authority. This submission should be accepted.
The question then is whether this right of the lessee must have been so exercised that it is effective at the expiration of the earlier grant. The Commonwealth submits that any renewal had to be effective "at the expiration" of the first term on 31 December 1977. That submission should be accepted.
In Associated Minerals Ltd v NSW Rutile Mining Co[331], this Court was concerned with the question whether a dredging lease under the Mining Act 1906 (NSW) could be renewed after the term had expired. In answering that question in the negative, Dixon CJ, Kitto, Taylor and Menzies JJ said that the term "renew" pointed towards the continuity of that which was in existence and was on the point of expiring[332]. Their Honours continued, and their reasoning is apposite to the construction of s 49 of the 1939 Ordinance[333]:
"This construction accords with what seems to be the plan of the Act that, upon the expiration of an original or a renewed term, the lease is at an end and others have or can acquire rights that the existence of a lease would preclude. For instance, the owner holds his land free from the lease and any person seeking a lease may take steps to get a lease that the continued existence of another lease would prevent. Neither a gap between the original term and the renewed term, nor a renewed term dating back to the expiration of the original term, coupled in either case with the termination or the destruction ab initio of rights acquired in the meantime, seem to have been within the contemplation of the legislature."
The appellants relied upon the decision of McMullin J in Aetna Life v Grace Bros Ltd[334]. That case concerned the construction of a clause providing for rent review "at the expiration of" 5 years of a ten year term. It was held that the phrase "at the expiration" meant "within a reasonable time of the expiration of"[335]. However, in that context, the considerations which are present in the reasoning in the above joint judgment and which are significant for this case were not to be found.
In the present case, French J referred to the continued occupancy by BHP after 31 December 1977 and said that it "appears that part of the 1978 rent had been paid in January 1978"[336]. Nevertheless, it was not until 15 November 1978 that BHP wrote to the Mining Registrar of the Department of Mines and Energy on the subject of renewal. The reason for the delay appears to have been the false assumption by BHP that the term of the mineral lease was then still current and would expire on 31 December 1978.
Upon the proper construction of s 49 and in the events that happened, it should have been held in respect of MLN 24 that BHP had not effectively exercised its right of renewal at 31 December 1977. It follows that, at the time of the commencement of the Self-Government Act in 1978, and thereafter, there were then no subsisting rights in respect of MLN 24 upon which there might operate that statute and other laws of the Commonwealth and the Territory.
The 1980 Act
The 1939 Ordinance was repealed by s 3 of the 1980 Act, with effect 1 July 1982. The 1980 Act was amended by the Mining Amendment Act 1983 (NT), with a deemed commencement on 1 July 1982 (s 3). The result was that s 191(5) of the 1980 Act operated upon those mining leases in force under the 1939 Ordinance[337] immediately before 1 July 1982 by deeming them mineral leases granted under Pt VI of the 1980 Act for the remainder of the term for which they were to remain in force under the 1939 Ordinance.
In the interval between the commencement of the Self-Government Act and 1 July 1982, putting aside MLN 24, renewals were made of MLN 23, MLNs 25-28, and of the gold-mining leases (MLNs 751-756). The renewals of the gold-mining leases were for a term commencing 1 January 1981, to expire 31 December 2001. As I have indicated above, these renewals were made in exercise of rights conferred by the 1939 Ordinance and did not require approval of any governmental authority. This is so notwithstanding an apparent practice of the Territory Minister for Mines and Energy to grant such approvals. As will later appear, s 57 of the Self-Government Act had continued those rights of the lessees under the 1939 Ordinance. One consequence of there being no requirement for governmental approval for the renewals is that no questions arise under s 35 of the Self-Government Act in respect of limitations upon the executive authority of the Ministers of the Territory[338].
Part VI of the 1980 Act (ss 54-81) provided for mineral leases. The term "mineral lease" was defined in s 4(1) as meaning mineral leases granted under Div 2 of Pt VI "or a mining lease continued in force by virtue of section 191(5)". Section 66 subjected every mineral lease to various conditions to be observed by the lessee. Section 68 provided for renewal or further renewal for a term not exceeding 25 years. In marked contrast to the regime under the 1939 Ordinance, s 68 specified that renewal was to be upon application and laid down formalities to be observed in making the application. The renewals with which this litigation is concerned were under the 1939 Ordinance. Under the 1980 Act, the Minister was not to refuse to grant an application for renewal except with the approval of the Administrator (s 68(4)) and once an application was pending a lease was deemed to continue in force until grant or refusal (s 68(5)). A legal or equitable interest in or affecting a mining tenement (so defined in s 4(1) as to include a mineral lease) might be transferred by instrument in writing and with the approval of the Minister (s 173). In respect of land comprising part of a park or reserve within the meaning of the Conservation Act, a law of the Commonwealth, the Minister was obliged by s 176(2)(b) of the 1980 Act not to grant the mineral lease without the written approval of the Minister of the Commonwealth charged with the administration of the Conservation Act[339]. This provision is framed in terms of grants rather than renewals, and nothing turns upon it.
The Self-Government Act commenced whilst the 1939 Ordinance was still in operation. The first of the Proclamations under the Conservation Act upon which Newcrest bases its claim of acquisition of the mineral leases otherwise than on just terms is that of 13 November 1989. The transfer of the mineral leases by BHP to Newcrest had been executed on 20 May 1987 and approved by the Territory Minister in June 1987. What then, immediately before 13 November 1989, was the standing of Newcrest with respect to the mineral leases? Putting, as it must be, MLN 24 to one side, and subject to any consequences flowing from the operation of the Self-Government Act and the Conservation Act, under the law of the Territory, Newcrest was entitled to rights conferred by the 1980 Act which answered the description of "property" in s 51(xxxi) of the Constitution. This is not denied by the Commonwealth and the Director in their submissions. Rather, they contend that as such property was situated in the Territory, par (xxxi) had no application to it. They also contend that, in any event, the steps of which Newcrest and BHP complain did not amount to any acquisition of that property on unjust terms.
The Commonwealth and the Director also rely upon a holding by the Full Federal Court as to the consequences of the Self-Government Act. This was that, upon the commencement of the Self-Government Act, that statute operated to deny to BHP, the predecessor of Newcrest, what otherwise were its then subsisting rights of renewal under s 49 of the 1939 Ordinance. The consequence was that purported renewals thereafter under the 1939 Ordinance, in the interval before the 1980 Act commenced on 1 July 1982 were of no effect. This would affect all the relevant mining leases and gold-mining leases under the 1939 Ordinance except that which became MLN 19. The original grant of MLN 19 was made on 22 July 1947 and there had been a renewal before the commencement of the Self-Government Act for a term to expire on 31 December 1988.
More broadly, the Full Court held that the effect of s 70 of the Self-Government Act was to provide exhaustively for the rights and obligations of the Commonwealth, and of persons holding previously acquired interests, in respect of the relevant lands, and to exclude the further operation of any law of the Territory[340]. This meant that there was no relevant subject-matter upon which the 1980 Act operated and, therefore, no statutory right of renewal of the mining tenements. This was because there were no mining leases under the 1939 Ordinance in force immediately before 1 July 1982, which were to be deemed by s 191(5) to be mineral leases granted under the 1980 Act. Steps taken under the 1980 Act upon the contrary assumption were of no effect in law. The actions of the Commonwealth taken in 1989 and thereafter, of which the appellants complain, did not operate upon any then existing property of Newcrest situated in the Territory and deriving from the laws of the Territory.
It may be noted that the case has not been pleaded on the footing that, if the Self-Government Act had these consequences, it would have effected an acquisition of property of BHP or other predecessors of Newcrest. Rather, Newcrest and BHP counter by submission that s 57 of the Self-Government Act preserved the operation of then subsisting rights under the 1939 Ordinance, including rights to renew conferred by ss 42 and 49 thereof, and that, in any event, s 70(6) of the Self-Government Act preserved and continued these rights. This was the construction of s 70(6) supported by French J[341] and by Beaumont J in his dissenting judgment in the Full Court[342].
I turn to consider the submissions concerning the Self-Government Act. Section 5 thereof brought into existence the Territory as a body politic under the Crown. Before the commencement of s 5 on 1 July 1978, it made no sense to describe any land or interest therein as "held from the Territory". The consequence of the operation of s 111 of the Constitution and s 10 of the Acceptance Act was that estates and interests in land within the geographical area of the Territory were held from the Commonwealth, or, as the same notion may be expressed, from the Crown in right of the Commonwealth.
Part IV of the Self-Government Act (ss 31-42) provided for the executive government of the Territory. Part VII (ss 56-75) dealt with the transition from the then existing to the new legal regime for the Territory. The existing laws of the Territory were defined in s 57(3) in terms which included the 1939 Ordinance. Those laws were, subject to the Self-Government Act, to have the same operation as if that statute had not been enacted (s 57(1)). However, that continued operation was subjected to alteration or repeal (i) by or under a law made by the Legislative Assembly of the Territory and assented to by the Administrator or the Governor-General on reservation under s 8, and (ii) by or under an Ordinance made under the 1910 Act as continued in force by s 57(1). This state of affairs is established by s 57(1), (3) and the definition of "enactment" in s 4(1). Section 57(1) states:
"Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."
The question then is whether the phrase in s 57(1) "[s]ubject to this Act" had the consequence of abrogating or qualifying, adversely to the interests of Newcrest or its predecessors in title, the continued operation of the 1939 Ordinance and rights derived therefrom by means in addition to those just indicated. In my view the answer is that there was no such consequence. It is true, as will appear, that the phrase "[s]ubject to this Act" in s 57(1) is to be read so as to give effect to s 69(3). But it will be seen that s 69(3) complements rather than detracts from the operation of s 57(1) upon the interests derived from the 1939 Ordinance by Newcrest and its predecessors.
The Commonwealth relied upon ss 69 and 70 and steps taken thereunder, in particular a Notice published in the Commonwealth of Australia Gazette ("the Gazette") dated 27 June 1978, as having adverse consequences for titles then held under the 1939 Ordinance. However, upon their proper construction, these provisions were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57. Rather, their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the Self-Government Act.
A provision was made in s 69(3) as to the effect of that adjustment between Commonwealth and Territory upon existing interests in land held from the Commonwealth. As I have indicated, the status of the Territory before the commencement on 1 July 1978 of s 5 of the Self-Government Act meant that such interests in a geographical area of the Territory were held from the Commonwealth. Section 69(3) dealt with the matter in a fashion which complemented ss 5 and 57. It stated:
"All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth."
Sub-sections (2) and (4) of s 69 dealt with what the Notes on Clauses which accompanied the Bill for what became the Self-Government Act had described as the basic reversionary interest in all land of the Territory, and the reserved rights of the Crown to all minerals in the Territory[343]. By force of s 69, these reversionary and reserved interests of the Commonwealth were to be vested in the Territory on 1 July 1978. The text of s 69(2) and (4) is as follows:
"(2) All interests of the Commonwealth in land in the Territory, other than interests referred to in subsection (5), are, by force of this section, vested in the Territory on the commencing date."[344]
"(4) All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances within the meaning of the Atomic Energy Act 1953 and the regulations made under that Act and in force immediately before the commencing date) are, by force of this section, vested in the Territory on that date."[345]
However, in enacting the Self-Government Act, the Parliament also was concerned to reserve to the Commonwealth the right to withdraw from the operation of these provisions in favour of the Territory areas associated with public purposes of the Commonwealth, and to do so without incurring any liability to compensate the Territory. Section 70 operates to attain that end. It commenced on the date of the Royal Assent (s 2(1)), which was 22 June 1978. The other operative provisions, including s 69, commenced 1 July 1978. Hence, the significance in s 70(1) of the phrase "any interest in land vested or to be vested in the Territory by subsection 69(2)". The text of sub-ss (1)-(5) of s 70 was as follows:
"(1) The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by subsection 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section.
(2) The Governor-General may, on the recommendation of the Minister under subsection (1), authorize the acquisition of the interest for a public purpose approved by the Governor-General.
(3) The Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General.
(4) Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section:
(a) vested in the Commonwealth; and
(b) freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which subsection (6) applies);
to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth.
(5) An interest that may be acquired under this section may be an interest that did not previously exist as such."
As I have indicated, s 69(2) was concerned not with interests held "from the Commonwealth", as was s 69(3), but with interests "of the Commonwealth". Thus, s 70 had nothing to say as to interests held by third parties beyond what was provided by the combination of ss 5, 57 and 69(3). Submissions to the contrary by the Commonwealth should be rejected.
Once its true scope is perceived, the construction of s 70 presents no great difficulties. Notices under s 70 were not to be published after 1 July 1979, this being one year after the date of general commencement of the statute (s 70(10)). However, as proved to be the case, notices might be published in the interval between the commencement of s 70 on 22 June 1978 and 1 July 1978. The later date was the commencement date for s 69 and the other substantive provisions of the statute. In that interval, the Territory would not yet have come into existence as a body politic. Accordingly, there were no interests in the subject land held from the Territory immediately before the acquisition by the Commonwealth upon the commencement of s 69. There would be no interests held by the then non-existent body politic, the Territory, which were derived from the interest acquired by the Commonwealth under s 70 upon the commencement of s 69.
Accordingly, in those circumstances, there would be no work to be done by s 70(6). This states:
"Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory."
Where, at the time when steps were taken under s 70, the land in question had already been vested in the Territory by the operation of s 69(2), after 1 July 1978, such derivative interests might have come into existence. In those circumstances, s 70(6) would operate to provide that thenceforth they were to be held from the Commonwealth on the same terms and conditions on which they were held from the Territory. That was not this case. The Notice in question was dated 27 June 1978 and published in the Gazette two days later. Accordingly, s 70(6) may be dismissed from further consideration.
Section 70(9) provided that any acquisition by the Commonwealth under s 70 of interests vested or to be vested in the Territory by s 69(2) did not carry liability on the part of the Commonwealth to pay compensation to the Territory in respect of that acquisition.
Section 50(2) of the Self-Government Act is addressed to the Commonwealth. It provides that the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which s 51(xxxi) of the Constitution would apply, is not to be made otherwise than on just terms. However, s 50(2) is expressed as being subject to s 70. As I have indicated, s 70(9) provides that the Commonwealth was not liable to pay to the Territory any compensation in respect of an acquisition made under s 70.
It will be noted that s 70(1) refers solely to interests in land vested or to be vested in the Territory by s 69(2). There is no reference to a vesting of interests of the Commonwealth in respect of minerals by s 69(4). As a result, doubts arose as to whether that which was vested in the Commonwealth under s 70(4) included the reserved right of the Crown to minerals which otherwise were vested in the Territory by operation of s 69(4). To remove those doubts, the Parliament enacted s 11 of the Northern Territory (Self-Government) Amendment Act 1982 (Cth) and deemed it (s 2(2)) to have come into operation on 22 June 1978. Section 11 amended s 70 of the Self-Government Act by adding sub-s (11) in the following terms:
"Where sub-section (4) has effect in relation to an interest in land, that sub-section has the like effect in relation to any interest vested in the Territory by sub-section 69(4) in respect of minerals in or on that land."
On 29 June 1978, various Notices were published by the Minister of State for the Northern Territory in the Gazette stating that, on the recommendation of the Minister, the Governor-General had authorised under s 70(2) of the Self-Government Act "the acquisition of the fee simple interest in the land described in the Schedule" for a particular public purpose approved by the Governor-General. In the Notice with which this case is concerned the stated public purpose was "National Park". The land identified in the Schedule included the areas in respect of which there were subsisting interests under the 1939 Ordinance with which this case is concerned. Other Notices dealt with land required for such purposes as Darwin Airport, Alice Springs Airport, defence facilities at Pine Gap and the Uluru National Park.
To put beyond doubt the validity of all the Notices which were published in the Gazette on 29 June 1978, the Parliament enacted the Northern Territory (Commonwealth Lands) Act 1980 (Cth). It excluded from lands described in the Notice for the Uluru National Park certain lands which already were vested in the Director of National Parks and Wildlife under s 7(7) of the Conservation Act (s 3(2)). It also provided (s 3(1)) that all the Notices in question were "for all purposes" to be taken to have and to always have had effect "to the fullest extent" to which they were capable of having effect in relation to "an interest in land" as specified therein.
Accordingly, the use in the Notice of the term "fee simple" is to be read, consistently with s 70(1), (4) and s 69(2), (4), adjectivally and to identify the amplitude of the reversionary and reserved interests of the Commonwealth. By the steps taken under s 70, these were to be excepted from the vesting in the Territory which otherwise would occur under s 69 on 1 July 1978[346].
Earlier in these reasons, I set out the text of s 49 of the 1939 Ordinance, which provided for a right of renewal of mineral leases "subject to the Ordinances and regulations relating to mineral leases in force at the time of such renewal". Section 42 made provision in similar terms for renewal of gold-mining leases. In both cases, the leases were of "Crown land" (ss 39, 45), a term originally defined in s 7 as meaning "all land of the Crown or of the Commonwealth". Upon the commencement of the primary provisions of the Self-Government Act on 1 July 1978, there also came into operation the Transfer of Powers (Self-Government) Ordinance 1978 (NT). Section 4 and Sched 1 thereof amended various ordinances including the 1939 Ordinance. The words "or of the Commonwealth" were omitted from the definition of "crown land". Sections 39 and 45, and the renewal provisions in ss 42 and 49, had thereafter to be read accordingly.
These changes accorded with the revised legal regime established by the Self-Government Act, with the provision (in s 5 thereof) for a "body politic under the Crown by the name of the Northern Territory of Australia". What might be called private interests, including those created under the 1939 Ordinance with which this litigation is concerned, were to survive the transition and the structure of government wrought for the Territory by the Self-Government Act. These interests survived in the same state, but with two qualifications. First, there was the operation of s 69(3) whereby they were to be "held from" the Territory rather than the Commonwealth. Secondly, by reason of the steps taken under s 70 on 27 June 1978, reserved and reversionary interests in the land in question remained vested in the Commonwealth. However, the content of those reserved and reversionary interests of the Commonwealth was to be ascertained after allowance for the continued operation, by dint of s 57 of the Self-Government Act, of the 1939 Ordinance and the private rights thereunder. This state of affairs would continue until the 1939 Ordinance was further altered or repealed by or under an enactment including a law of the legislature of the Territory.
Any contrary construction of the Self-Government Act, including ss 57 and 70, whereby private property rights were destroyed or impaired, impliedly rather than expressly, and without compensation, is contrary to the tenor of s 50. Reference to this provision has already been made. The text is:
"(1) The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.
(2) Subject to section 70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms."
I have referred to the specific stipulation in s 70(9) that the Commonwealth not be liable in the circumstances with which s 70 is concerned to pay compensation to the Territory. Otherwise, s 50(2) should be accorded its full significance in the construction of the other provisions of the statute.
In the Full Court, after referring to the construction of the legislation which I favour, Beaumont J said in his dissenting judgment[347]:
"That this should be the intention of the Parliament and the outcome, given the absence of any specific provision in the self-government legislation for just compensation for the extinguishment of such interests, notwithstanding the guarantee given by s 50 of that statute, is hardly surprising."
The result, for the areas with which this litigation is concerned (save MLN 24), was to retain for the Commonwealth reversionary and reserved interests in land in which private subsisting interests were continued in operation but held from the Territory on the same terms and conditions on which they were held from the Commonwealth before 1 July 1978 by force of ss 57 and 69(3). There may appear some incongruity in that result. However, it was entirely the product of laws having the same immediate and ultimate source, namely ss 111 and 122 of the Constitution and laws of the Commonwealth made for the government of the Territory in exercise of the power conferred upon the Parliament by s 122.
MLN 19
Special considerations affect MLN 19, independently of those which would arise under the proclamation made on 21 June 1991. MLN 19 had been renewed under the 1939 Ordinance for a period to expire on 31 December 1988. The special considerations arise from steps taken under the Conservation Act and after the commencement of the Self-Government Act.
Section 8A(2) of the Conservation Act[348] empowered the Governor-General, by proclamation, to declare any area within what was defined as the "Region" to be a "conservation zone". The subsoil beneath any land within an area declared to be a conservation zone, extending to such depth below the surface as was specified in the proclamation, was to be taken as being within that conservation zone (s 8A(4)). By proclamation under s 8A(2) dated 5 June 1987, the Governor-General declared the area specified in the Schedule thereof to be a conservation zone and, for the purposes of s 8A(4), specified the subsoil extending to 1,000 metres below the surface as also being in that conservation zone. MLN 19 was within this conservation zone.
This new state of affairs was of great significance for any renewal under the 1980 Act of MLN 19. This was because of the operation of s 8B (in particular s 8B(1)(b) and (3)(d)) upon any interest under MLN 19 in respect of minerals to the depth of 1,000 metres below the surface[349]. The effect of s 8B(1)(b) was that the interest in minerals was not to be renewed and the term thereof was not to be extended except with the consent in writing of the Minister administering the Conservation Act and subject to such conditions as the Minister determined.
In this period there was uncertainty as to the identity of the current regulatory regime for the existing leases at Coronation Hill and disagreements in this respect between the Governments of the Commonwealth and the Territory. French J dealt with the relevant factual matters in detail in his judgment[350]. Until about 1987, the Commonwealth left to the Territory formal aspects of the administration of mining leases which the Commonwealth nevertheless regarded as held from it under the construction it placed upon s 70(6) of the Self-Government Act[351]. As I have indicated, that construction of s 70(6) should not be accepted.
French J held that, whilst application for renewal of MLN 19 had been made on 28 June 1988 to the Secretary of the Department of Mines and Energy of the Territory, the consent of the appropriate Commonwealth Minister had not been sought under the Conservation Act[352]. The result was that MLN 19 had not effectively been renewed. Accordingly, it was not in existence at the time of the relevant proclamation made on 21 June 1991.
Section 8B(2) of the Conservation Act provided that any person adversely affected by the refusal of the Minister to give consent under s 8B(1)(b) was entitled to be paid reasonable compensation by the Commonwealth. However, French J held, no consent having been sought, there had been no refusal which could give rise to this right of compensation[353]. In this Court, it appeared that the appellants had not pleaded in their Statement of Claim any claims under s 8B(2). Leave to amend was sought. Leave should be refused on the footing that, in any event, a claim under s 8B(2) must fail.
French J reached his conclusion after consideration[354] of submissions by Newcrest and BHP that the Commonwealth had intended that MLN 19 be renewed by the issue to Newcrest (then named BHP Gold Mines Ltd) on 3 March 1988 of an authority under the Lands Acquisition Act 1955 (Cth) ("the 1955 Act")[355]. His Honour rejected those submissions.
Section 53(2) of the 1955 Act authorised the grant of rights, powers or privileges (other than leases or occupation licences) over or in connection with land vested in the Commonwealth. French J held[356] that an authority issued under the 1955 Act conferred rights which differed qualitatively and quantitatively from those under MLN 19. That cannot be seriously disputed.
Newcrest and BHP also submit that there was a "constructive refusal" by 31 December 1988 by reason of unreasonable delay by the Commonwealth in dealing with the matter. They refer to the assertion by the Commonwealth that, for the purposes of the applicable mining law in the Territory, the Commonwealth was now, as a consequence of the Self-Government Act, the relevant renewal authority. Sections 69 and 70 of the Self-Government Act were administered by the Minister for Administrative Services; the remaining sections of the Self-Government Act and the Conservation Act were administered by the Minister for the Arts, Sport, the Environment, Tourism and Territories[357]. Newcrest and BHP refer to a letter dated 29 June 1988 addressed to the Secretary of the Department of Administrative Services. This was headed "MINERAL LEASE 19, NORTHERN TERRITORY" and stated:
"Please find herewith a duplicate application for renewal of the above Mineral Lease.
The original application was delivered to the Department of Mines and Energy, Darwin, on 29th June 1988."
A letter from an officer of the Department of Administrative Services which was received by and on behalf of Newcrest on 29 September 1988 responded that the Minister for Administrative Services, not the Minister for Mines and Energy of the Territory, was the responsible authority and that the matter of renewal was being considered. It is apparent from the tenor of the letter that what was being considered was the exercise of the power of renewal in respect of MLN 19 asserted by the Commonwealth upon its construction of s 70(6) of the Self-Government Act.
At no stage in the correspondence did Newcrest advert to the necessity of approval under s 8B(1)(b) of the Conservation Act. That being so, there is no substance in the submission that the Commonwealth is to be treated as having constructively refused that which had not been sought of it.
The holding by French J on this aspect of the case should not be disturbed. It follows that at the time of the relevant proclamation of 21 June 1991, there were no then subsisting rights in respect of either MLN 19 or MLN 24.
There remains the issue of whether, in respect of those mining tenements which subsisted at the times of the respective Proclamations, there was an acquisition of property without just terms.
Acquisition of property
In the introductory passages to these reasons, I indicated the complaint of the appellants as being that, upon the Proclamations coming into effect, the result was that by combination of ss 7(2), (7) and 10(1A) of the Conservation Act there was an acquisition of the then subsisting mining tenements without observance of the constitutional requirement of just terms. It follows from conclusions reached earlier in these reasons that MLN 19 and MLN 24 may be dismissed from such consideration. This is because they no longer subsisted at the relevant times.
None of the provisions relied upon by the appellants is expressed in direct language as effecting an acquisition of any property. However, the question is whether, even if not formally, the appellants effectively have been deprived of "the reality of proprietorship" by the indirect acquisition, through the collective operation of the provisions of the Conservation Act, of "the substance of a proprietary interest". I have referred earlier in these reasons to the passage in the judgment of Dixon J in Bank of NSW v The Commonwealth[358] which supports these propositions.
The appellants refer to the rights enjoyed in respect of the mining tenements under the 1939 Ordinance. These included, in the terms of the grants in the prescribed forms, a grant and demise of the relevant parcel of land and all the mines, veins, seams, lodes and deposits of the relevant minerals in, on or under the land, together with[359]:
"the rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining, excepting and reserving out of this demise all such portions of the said piece or parcel of land as are now lawfully occupied by persons other than the lessee, or any portion thereof which is now used for any public works or buildings whatsoever".
The appellants say that, in substance, the Commonwealth and the Director acquired identifiable and measurable advantages. In the case of the Director, those advantages were the acquisition of the land freed from the rights of Newcrest to occupy and conduct mining operations thereon and, in the case of the Commonwealth, the minerals freed from the rights of Newcrest to mine them. In accordance with the authorities, that is sufficient derivation of an identifiable and measurable advantage to satisfy the constitutional requirement of an acquisition[360].
There is no reason why the identifiable benefit or advantage relating to the ownership or use of property, which is acquired, should correspond precisely to that which was taken[361]. This is not a case in the category considered in Health Insurance Commission v Peverill[362] where what was in issue were rights derived purely from statute and of their very nature inherently susceptible to the variation or extinguishment which had come to pass. I have referred to the proviso in the prescribed forms under the Mining Regulations made under the 1939 Ordinance. They disclose that there was an inherent but limited liability to impairment of the rights conferred by the mining tenements. But what was done was not in exercise of the rights of the Crown under that proviso and went far beyond that which could have been brought about by those means.
Further, the history of the Territory, beginning with the surrender and acceptance effected pursuant to s 111 of the Constitution, shows that the Commonwealth (or the Crown in right of the Commonwealth) acquired a radical title in the sense known to the common law and thereafter the Commonwealth dealt with the subject land in exercise of its rights of dominion over it. This involved the use of statute to carve out interests from the particular species of ownership enjoyed by the Commonwealth and, after self-government, by the Territory in the manner identified earlier in these reasons. It is not correct, for the purposes of the application of s 51(xxxi), to identify the property held by Newcrest as no more than a statutory privilege under a licensing system such as that considered in such decisions as Minister for Primary Industry and Energy v Davey[363] and Bienke v Minister for Primary Industries and Energy[364].
Nor is this a case where there was merely an impairment of the bundle of rights constituting the property of Newcrest. An example of such impairment is found in Waterhouse v Minister for the Arts and Territories[365]. There, the prohibition on export of the painting in question left the owner free to retain, enjoy, display or otherwise make use of the painting and left him free to sell, mortgage or otherwise turn it to advantage subject to the requirement of an export permit if the owner or any other person desired to take it out of Australia. Here, there was an effective sterilisation of the rights constituting the property in question. That this is so is only emphasised upon a consideration of the contrary submission made by the Commonwealth and the Director. It is true, as they submit, that the mining tenements were not, in terms, extinguished. It is true also that Kakadu extended only 1,000 metres beneath the surface. But, on the surface and to that depth, s 10(1A) of the Conservation Act forbade the carrying out of operations for the recovery of minerals. The vesting in the Commonwealth of the minerals to that depth and the vesting of the surface and balance of the relevant segments of the subterranean land in the Director had the effect, as a legal and practical matter, of denying to Newcrest the exercise of its rights under the mining tenements.
Conclusion
In respect of the mining tenements with the exceptions of MLN 19 and MLN 24, there were acquisitions of property from Newcrest other than on the constitutional requirement of just terms. This result is reached by a series of steps which involve denial of the propositions which supported the orders made by the Full Court. The appeal should be allowed and the orders made by the Full Court should be set aside. Appropriate declaratory relief should be granted which will give effect to the result reached in this Court with respect to the whole of the litigation.
French J gave liberty to apply for further directions dealing with the disposition of the action. This order was one of those set aside by the Full Court. However, no specific order by this Court is required to restore that order. This is because the terms of the remitter order of 8 October 1992 are sufficiently broad to encompass the disposition of any issues which remain pending in the Federal Court. Any further conduct of the litigation should be upon appropriate directions given in the Federal Court.
The respondents should pay the costs of the appellants of the issues to date tried in the Federal Court, the costs in the Full Court and the costs in this Court.
I would implement these conclusions by the following orders.
In respect of the appeal from the Full Court, the orders should be as follows:
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in place thereof:
(a) declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the Conservation Act, each of MLNs 78-89 was still in force;
(b) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act, each of MLNs 23, 25-28, 751-756 was still in force;
(c) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act, neither MLN 19 nor MLN 24 was any longer in force; and
(d) order that the costs of Newcrest and of BHP of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.
3. Liberty to apply on 7 days' notice.
In respect of the matter reserved by order of the Chief Justice made on 21 May 1996 for consideration of the Full Court, the orders should be:
1. Declare that in respect of MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the Conservation Act was invalid to the extent that it effected acquisitions of property from Newcrest other than on just terms within the meaning of s 51(xxxi) of the Constitution.
2. Declare that in respect of MLNs 23, 25-28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act was invalid to the extent that it effected acquisitions of property from Newcrest other than on just terms within the meaning of s 51(xxxi) of the Constitution.
3. Order that the costs of Newcrest of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.
4. Liberty to apply on 7 days' notice.
KIRBY J. In Nelungaloo Pty Ltd v The Commonwealth[366], Kitto J remarked:
"The decisions of the Court on s 51(xxxi) have been comparatively few, and the judgments that have been delivered have revealed the existence of serious problems still to be faced."
Many of the serious problems remain for consideration forty-five years later. The important constitutional question arising in these proceedings concerns the relationship between the territories power[367] in the Constitution and the express power for the acquisition of property[368] to which Kitto J referred in Nelungaloo. The question is presented in an appeal from a decision of the Full Court of the Federal Court of Australia[369].
By majority[370], that Court reversed orders made by the primary judge[371] disposing of part of an action originally commenced in this Court but remitted by it to the Federal Court[372]. Excluded from the order of remittal was an application by Newcrest Mining (WA) Limited ("the first appellant") and BHP Minerals Limited ("the second appellant") claiming particular relief from the Commonwealth ("the first respondent") and the Director of National Parks and Wildlife ("the second respondent") created by the National Parks and Wildlife Conservation Act 1975 (Cth)[373] ("the Conservation Act"). The relief concerned the suggested invalidity of certain provisions of the Conservation Act made in reliance (in part) upon the territories power[374]. Such invalidity was said to arise because of a failure of the Act to comply with s 51(xxxi) of the Constitution.
The substantive questions, other than the fundamental constitutional one, now being returned to this Court in this appeal, the proceedings are once again brought together. The fundamental constitutional question, withheld from the order of remittal, remains to be determined. It presents an obstacle which lies across the path of the appellants' request for an affirmative answer to the question whether s 51(xxxi) applies to laws made by the Parliament under s 122 of the Constitution. That obstacle appears in the form of the unanimous holding of this Court in Teori Tau v The Commonwealth[375]. The Federal Court was bound by that decision. Hence, the exclusion from the remittal of what was, in effect, a challenge to its correctness. That challenge, reserved to this Court, is now before it for decision.
The proceedings
The facts and the applicable legislative provisions are contained in the reasons of Gummow J, in terms which I accept.
There are, as his Honour points out, particular complications with respect to two of the mining tenements (MLN 19 and MLN 24) propounded by the appellants. I agree, for the reasons which Gummow J gives, that at the relevant times[376] the first appellant enjoyed no subsisting rights in respect of either of such tenements. Accordingly, in respect of them, there was no "property" to be the subject of any acquisition calling forth the suggested application of the requirement for "just terms" in s 51(xxxi) of the Constitution. That conclusion, however, leaves the remaining mining tenements, the subject of these proceedings.
By the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the 1987 Act"), the Conservation Act was amended to provide that[377]:
" No operations for the recovery of minerals shall be carried on in Kakadu National Park."
Whilst it is true that the first appellent's interests were not expressly acquired or extinguished by, or under, any federal law, it is also true that the creation and extension of the Kakadu National Park by federal law - encompassing, in the areas acquired, some 1,000 metres beneath the surface of the land[378] - effectively deprived the first appellant of the benefit of its property in the mining tenements, principally the right to recover minerals. A notional possibility that the first appellant could tunnel more than 1,000 metres below the surface to win the mineral product without disturbing the surface of the Park can be ignored as unrealistic.
The issue was thus presented whether such prohibition against the recovery of minerals amounted in law, as it did in effect, to an acquisition of the first appellant's property. If it did, the next question was whether the law purporting to authorise that result was a valid law. Relevant to the answer to that question are the terms of s 7 of the 1987 Act which states:
" Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."
The outcome of the prohibition on "operations for the recovery of minerals"[379] in the Kakadu National Park was, in my view, an acquisition of the first appellant's remaining mining tenements. It was an event which had occurred "by reason of the enactment of" the 1987 Act[380]. If s 7 of the 1987 Act is valid it purportedly exempted the Commonwealth from any liability to pay compensation to the appellants for such acquisition. Hence the appellants' assertion of invalidity based upon the constitutional requirement of just terms.
Pause for a moment to reflect upon the result of the impugned legislation, if valid. It is one thing to expand a National Park for the benefit of everyone who will enjoy its facility. It is another to do so at an economic cost to the owners of valuable property interests in sections of the Park whose rights are effectively confiscated to achieve that end. Ordinarily, at least under federal law, the expansion of areas for public use is carried out at the price of compensating justly those private individuals who lose their property interests in order to contribute to the greater public good. It is possible that the operation of the Constitution and the applicable federal legislation might result in such an uncompensated acquisition. That, after all, could certainly occur, so far as the Constitution is concerned, in respect of acquisitions of property under State law which is not subject to the "just terms" requirement of s 51(xxxi)[381]. If the correct interpretation of the Constitution requires such a result, this Court must give effect to it. It must do so whatever opinions might be held concerning the justice or fairness or propriety of obliging selected property holders to suffer uncompensated losses for the benefit of the community as a whole.
Nevertheless, the result of such a course is so manifestly unjust that the mind inclines against an interpretation of the Constitution which has that consequence. At least it does so if another interpretation, which avoids it, is available. I shall return to this consideration towards the end of these reasons. But first, it is necessary, as the appellants ask, to consider whether the decision of the Court in Teori Tau[382], which holds that s 51(xxxi) does not apply to a law validly made under s 122 of the Constitution, was correctly decided. If it was and if it applies, it is necessary to examine the narrower, approach which has commended itself in this case to Toohey J and, as an additional ground, to Gaudron and Gummow JJ as a result of the way in which the Conservation Act invokes a collection of federal heads of power to support its constitutional validity[383].
Because of the constitutional importance of the relationship between s 51(xxxi) and s 122, the differences which have now emerged in the opinions in this Court and the full argument of the parties, I propose to address first the authority in Teori Tau. I shall then return to the alternative, or additional, approach and express my view upon it.
Compulsory acquisitions in the territories
Section 51(xxxi) of the Constitution appears in Pt V of Ch I providing for the powers of the Federal Parliament. The paragraph states:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".
Before federation, what is now the Northern Territory of Australia was "annexed to the Province of South Australia by Letters Patent in 1863"[384]. After federation it came to owe its existence as a territory, within the meaning of the Constitution, to the surrender of the annexed territory by the State of South Australia[385] and the acceptance of that territory by the Commonwealth in terms of legislation enacted by the Federal Parliament[386]. This process of surrender and acceptance was accomplished pursuant to s 111 of the Constitution, appearing in Ch V - "The States". The terms of that section should be noted:
" The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth."
Meaning is given to the "exclusive jurisdiction" referred to in s 111 by the provisions of s 122 of the Constitution. That section appears in Ch VI called (somewhat misleadingly) "New States". Section 122 provides:
" 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."
Before Teori Tau, there was something of a controversy about whether an acquisition of property from any person under a law for a territory made by the Federal Parliament would attract the constitutional entitlement to just terms such that, if they were not provided, the law purporting to authorise the acquisition would be invalid to that extent. Invoking, by analogy, the suggestion in Lamshed v Lake[387] that the incidental power, expressly provided to the Parliament by s 51(xxxix) of the Constitution, could supplement the legislative power to make laws for the government of a territory, Professor P H Lane observed in 1964[388]:
"Because of the width of the power in s 122, there is just no need to turn to the legislative powers in s 51 when Parliament deals with territorial matters.
There are, however, two powers in s 51 which may apply to the territories, namely s 51(xxxi) and s 51(xxxix). The terms of the acquisition power refer as much to a defence acquisition associated with s 51(vi), for example, as they refer to a territorial acquisition related to s 122; for s 51(xxxi) confers an expropriation power 'for any purpose in respect of which the Parliament has power to make laws'; one such purpose exists in s 122. [The Constitution] s 51(xxxix) in referring to 'any power vested by this Constitution in Parliament' refers to s 122; not that we need set much store on s 51(xxxix), for whatever can be done under that power can be achieved under the incidental power implied in s 122 itself."
At about the time this view was expressed, a single judge of the Supreme Court of the Northern Territory[389] decided in Kean v The Commonwealth[390] that the requirement of just terms for federal acquisitions applied to acquisitions in the territories in the same way as it would to acquisitions in the States. To be valid, the federal law authorising such acquisitions had to provide that the acquisition be on just terms. The decision in Kean was welcomed by a contemporary comment in the Australian Law Journal[391]:
"The ill-considered decisions and dicta of the High Court in Buchanan v Commonwealth[392] and R v Bernasconi[393] had given rise to the possibility of a general rule that s 122 ... was not subject to other provisions of the Constitution such as the separation of judicial power required by Ch 3, the guaranteeing of religious toleration in s 116 or the requirement of just terms on acquisition of property. But doubts about that general doctrine were expressed ... by Dixon CJ in Lamshed v Lake[394]."
Strictly speaking, the judge in Kean did not have to reach a conclusion on the application of the constitutional requirement for he found that the applicable law[395] did, in fact, provide just terms. Nevertheless, in obiter remarks, he expressed the opinion that the constitutional requirement had to be observed in the Territory[396].
Dr Wynes completed the fourth edition of his text Legislative, Executive and Judicial Powers in Australia[397] without the benefit of Teori Tau. In his summary of this Court's then jurisprudence relating to the territories he remarked that the extent (if at all) that other sections of the Constitution apply to, or in respect of, the territories depended upon the construction of the particular section concerned and the consideration of the operation of the Constitution as a whole. He thus concluded that some sections, eg ss 116, 118 and 92 in relation to passage through a territory, "may and probably do" apply[398]. In a footnote he noticed the decision in Kean. However, he "respectfully doubt[ed] the correctness of this opinion in view of the decision in Spratt v Hermes"399. It was in Spratt, after Kean was decided, that this Court held that the provisions of Chapter III of the Constitution (notably s 72 with its guarantees associated with the appointment, tenure and salary for members of the federal judiciary) were not applicable to courts created by, or pursuant to, laws made under s 122 of the Constitution. That approach was later confirmed by the decision in Capital TV and Appliances Pty Ltd v Falconer[400]. Those decisions were made during a period when the Court's jurisprudence uniformly emphasised the separate and plenary nature of the powers of the Federal Parliament in making laws for the territories.
In that context the decision of the Court in Teori Tau was scarcely a surprising one. The record of argument shows that Barwick CJ (who delivered the judgment of the Court) was prepared to concede that s 122 might be subject to s 116[401]. However, his Honour suggested to counsel for the plaintiff that "that does not involve its being qualified by s 51(xxxi)"[402]. Counsel submitted that the paragraph was different from others in s 51. It was a purposive power. Its language included the purpose of making laws for the territories. Counsel pointed to the anomaly which would arise if the Commonwealth could acquire property within a State for a purpose connected with the government of a territory ("such as establishing a tourist bureau"[403]) without having to provide just terms. The law report records that, following a short adjournment, Barwick CJ delivered the brief ex tempore opinion which presents the decisional obstacle to the appellants' first constitutional argument in these proceedings.
The reasons of Barwick CJ, for the Court, are cited and analysed by Gummow J. I will not repeat what his Honour has said. The essential foundation for the conclusion that there was "no doubt whatever" that the power to make laws providing for the acquisition of property in a territory was "not limited to the making of laws which provide just terms of acquisition" appears in the following passage[404]:
" Section 122 of the Constitution ... is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.
...
Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter."
In the two decades since Teori Tau was decided views have occasionally been expressed in the Court which have appeared to question the fundamental assumption[405] about the almost complete disjointure of s 122 from the rest of the Constitution[406]. With the passage of time, later decisions of the Court have laid renewed emphasis upon the inter-relationship between s 122 and the remainder of the Constitution. Thus, in Australian Capital Television Pty Ltd v The Commonwealth[407], the principle in Teori Tau was impliedly reserved by some of the justices[408] but it was relied upon by one, at least, for his minority view[409]. Whilst Teori Tau has certainly been referred to in a number of decisions of the Court since it was delivered[410], in none of these was a direct challenge to its correctness mounted.
Some commentators on Teori Tau have suggested that factors peculiar to the application of the territories power to an external territory such as Papua[411] or Papua and New Guinea[412], with large indigenous populations and distinct cultural norms may have influenced, however unconsciously, the Court's decisions to quarantine that power from the rest of the Constitution. Whatever may be the force of that suggestion as a matter of unconscious psychology, it was expressly denied by Barwick CJ's closing words in Teori Tau[413]:
"Our decision applies to all the territories, those on the mainland of Australia as well as those external to the continent of Australia."
Other commentators have discerned from later decisions of this Court an "ambiguous status" about Teori Tau. They have proposed that "[i]t would probably be best if the decision were overturned"[414]. That is the course which the appellants urged upon the Court in these proceedings. To the extent that the Court's practice required leave[415] to permit that course, the appellants sought such leave. I have, in previous decisions, expressed my doubts about the validity of this practice, however convenient it may be[416]. But, clearly, any question of leave would be bound up with the merits of the respective arguments defending and criticising the holding in Teori Tau and examining the perceived requirements of the constitutional text. To these considerations I now turn.
However, I first remind myself of two observations about the approach which should be taken to the task of constitutional interpretation. In Australian National Airways Pty Ltd v The Commonwealth, Dixon J said[417]:
"[I]t is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances."
He continued[418]:
"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications. It is absurd to contemplate a central government with authority over a territory and yet without power to make laws, wherever its jurisdiction may run, for the establishment, maintenance and control of communications with the territory governed. The form or language of s 122 may not be particularly felicitous but, when it is read with the entire document, the conclusion that the legislative power is extensive enough to cover such a matter seems inevitable."
In the Pay-roll Tax Case[419], Windeyer J remarked, referring to the fresh approach to the Constitution taken in the Engineers' Case[420]:
"[T]he Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. ... As I see it the Engineers' Case ... looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there. That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law."
The settled authority of this Court in matters of constitutional doctrine is a specially important element in ensuring stability and predictability in the fundamental arrangements affecting government and the exercise of political power in this country. Furthermore, the text of the Constitution, being virtually unchanged and written for the most part in language of everyday use, takes succeeding generations of Justices of this Court back to a common verbal reference point. Opinions of earlier Justices about the meaning of the text are likely (to say the least) to remain correct, as a matter of textual analysis, years or even decades later. This may be especially so where, as in Teori Tau, the decision of the Court was a unanimous one and not a single justice felt constrained to propound a dissenting opinion.
However, when a challenge to an established decision comes, it is the duty of each Justice to discover the precise state of the Court's authority and then to examine the arguments of the parties and to look afresh at the constitutional text[421]. He or she must study the Constitution's language, structure and implications - to see whether new insights, derived from later authority of the Court or from new occurrences "outside the law courts" upon which the Constitution must operate, suggest strongly the need to reopen established authority and to reverse an opinion which recommended itself to the Court in earlier times. Various useful rules have been propounded to assist in the decision on whether a case is one for adhering to past authority or reversing it in favour of a new principle[422]. But in the end, in each case, it is a matter for judgment. In constitutional cases it is one requiring the reconciliation of the conflicting demands of loyalty to the Court's past decisions and loyalty to the constitutional text, freshly examined. Each of these demands has legitimacy. The one provides the accumulated wisdom of the past in the authoritative statements of the law. The other affords recognition of the legitimate influences upon constitutional doctrine of fresh perspectives and of "matters that might broadly be called social or political"[423].
I would reject the suggestion that the Court's response to an application to reopen past authority is controlled by the reliance which the Executive Governments or the Parliaments of the Commonwealth, the States and the Territories have placed upon past authority. There can be no estoppel against the Constitution. It not infrequently happens that a decision of the Court disturbs assumptions and invalidates significant legislation and actions important to the Executive Government. One need go no further into the past than the recent decision of the Court in Ha and Anor v State of New South Wales[424] to see that this is so. Nor is it unique for unanimous decisions to be overturned when fresh insights provide new approaches to constitutional interpretation. Thus, Cole v Whitfield[425], concerning the meaning of s 92 of the Constitution, overthrew past doctrine stated in many decisions, several of them unanimous.
The notion that the Court should stay its hand because of the rejection of the constitutional referendum in 1988 is the least convincing reason of all. There were several connected proposals any one of which could have explained the failure to pass the constitutional alteration concerning State and Territory acquisitions of property. Typically, political factors can play a part, as they did on that occasion. I do not recall the slightest mention of Teori Tau during the referendum arguments. Far from being "comfortable" with the holding in that case, the people of Australia, it seems safe to assume, were blissfully ignorant about it and about the controversy which now falls for reasoned decision by this Court.
Nonetheless, in my view, Teori Tau does not represent an ill-considered departure from the holdings of the Court which preceded it on the scope of the territories power under the Constitution. On the contrary, the decision fits quite comfortably within a number of other decisions of the Court. These emphasised the distinctiveness of the head of power in s 122 and its separation from the other powers afforded to the Parliament to make laws. Before identifying the reasons which lead me to conclude that Teori Tau was wrongly decided, and should now be overruled, I want to acknowledge, as forcefully as I can, the persuasive power of the arguments which would sustain adherence to its holding. Only by understanding and weighing these can a correct decision be reached about the submissions of the appellants to the contrary.
Arguments for separating s 122 from s 51(xxxi)
The principal reasons, apart from those of authority, for adhering to the holding in Teori Tau are, in my opinion, these.
1. A number of indications in the text of the Constitution are relevant and must be given weight. The provisions of ss 51(xxxi) and 122 appear in separate Chapters of the Constitution. Whilst it is true that both s 51 and s 122 empower the making of laws by the Parliament, the collection of the powers in s 51 is specific and limited as to subject matter. The power under s 122 is not limited in subject matter but only by reference to geography and object. The phrase used in s 51(xxxi) "for any purpose in respect of which the Parliament has power to make laws" represents the exact formula used in the opening words of s 51 and s 52. There is no reference in s 122 to the Parliament's "power to make laws". Had it been intended to subsume acquisitions of property made pursuant to the territories power within the régime established by s 51(xxxi), it might have been expected that such power would have appeared as a paragraph in s 51 or s 52. As Gummow J has pointed out, it was proposed at the Melbourne Convention in 1898 that s 122 be placed in what became s 52. Instead, it was placed in Ch VI. This separation gives a measure of support to its suggested character as "unlimited and unqualified in point of subject matter"[426]. It helps to explain why the territories power has sometimes been described as being "of a different order"[427] from the legislative powers appearing elsewhere, notably in s 51.
2. The textual expression and arrangement of the Constitution also help to explain why the power to make laws under s 122 has been repeatedly described as plenary[428]. The "plenary" character is given emphasis by the omission from s 122 of the phrase "subject to this Constitution". That phrase appears in the opening words of the grants of legislative power in ss 51 and 52. Had it been intended to submit acquisitions effected under the territories power to the requirement established by s 51(xxxi), it might have been expected that the familiar words of cross-reference would have been used. They were not. The grant of power by s 122 to make "laws for the government of any territory" must be taken to include a power to legislate for the compulsory acquisition of property. Such power is, as it was in 1901, an essential feature of "government". Whatever doubts were thought to exist as to the capacity of the specific heads of power in s 51 to sustain compulsory acquisition of property by the Commonwealth for its non-territorial functions, such doubts could not exist in respect of the plenary grant of power in s 122. The "government of any territory" could not be conducted without a power, where necessary, to acquire property by compulsion for such governmental purposes. In 1901 the power of acquisition by statute was fully accepted for the provision of roads, railways, post offices, court houses and the other essential services of government. Even more so today, as governmental purposes have expanded, the words of s 122 must, by necessary implication, carry an acquisition power. But whereas that power is expressly qualified in s 51(xxxi) by the requirement that the acquisition be "on just terms", no such express qualification has been included in the terms of s 122.
3. An explanation for this differentiation may exist in the history of s 51(xxxi). The location of the provision in the list of the Commonwealth's legislative powers suggests that it was not conceived of as a constraint on power but as an affirmative contribution to that power, although on the condition stated. In their text of 1901, Quick and Garran explained that the addition of the provision was proposed at the 1898 session of the Constitutional Convention to overcome doubts which were expressed that the proposed Federal Parliament would not have "a right of eminent domain for federal purposes"[429]. The Framers had recourse to the provisions of the Fifth Amendment to the United States Constitution. The terms of s 51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms"[430]. The function of the paragraph as a grant of federal power has long been accepted by this Court[431]. The function of s 122 is different. It was not part of the assignment of powers as between the new federal polity and the States, which was the general concern of s 51. To that extent the territories power in s 122 has been described as "non-federal" in its essential character[432]. Similarly, the territories have been described as not being "part of the Federal system"[433]. The federal compact between the former colonies and the new Commonwealth was to be contained in the first five Chapters of the Constitution. They established a "special universe of discourse"[434]. Upon this view, s 122, found in Ch VI, deals with a fundamentally different topic entirely within the Commonwealth's governmental concerns[435]. It was the realisation that the power to make laws for the government of the territories stood outside the federal system that led Kitto J in Spratt v Hermes[436] to "recant"[437] the opinion which he had earlier expressed in Lamshed v Lake[438]. Whilst for some purposes a territory was part of the Commonwealth, for the purposes of the limitations placed upon the powers of the Federal Parliament under the federal compact with the States, s 122 was to be viewed as separate and distinct. Some textual support for this view exists in the language of s 51(xxxi). The paragraph refers expressly to "acquisition ... from any State or person". There is no reference to acquisition by or from a territory. The words lend some support to the view that such acquisitions were to be regarded as exclusively within the power granted by s 122.
4. Further reinforcement for this view emerges from the nature of the power granted by s 122. It is, in effect, a power to establish local government in the territories. By analogy with the States in their own domain, it is therefore an entire grant. There is no requirement that it be subject to limitations, qualifications or conditions thought proper with respect to the new federal polity in its relationship to the States and persons within such States[439]. Just as the States are not now, any more than they were in 1901, subject to entrenched constitutional requirements to provide just terms for the acquisition of property, so the grant of power to the Commonwealth had no such limitations, qualifications or conditions in the territories.
5. Nor can it be said that Teori Tau stands as an anomalous exception to the Court's jurisprudence with respect to the s 122 power. On the contrary, it is consistent with a series of decisions which emphasise the unique nature of s 122 and the legislative power which it affords. In Buchanan v The Commonwealth[440] it was held that the limitations imposed by s 55 of the Constitution on the making of laws imposing taxation applied only to laws made under the power conferred by s 51(ii). It did not apply to a law made under s 122. Accordingly, the requirements of s 55 of the Constitution were inapplicable in a territory. In R v Bernasconi[441] it was held that the protections of s 80 did not apply to a law made under s 122. In Lamshed v Lake[442] it was held that s 92 was not applicable to trade, commerce and intercourse between a territory and a State. In Spratt v Hermes[443] it was held that the guarantees in s 72 with respect to the appointment, tenure and salary of members of the federal judiciary were not applicable to courts created by, or pursuant to, laws made under s 122. In Capital TV and Appliances Pty Ltd v Falconer[444] it was held that the Supreme Court of the Australian Capital Territory was not a federal court, nor a court exercising federal jurisdiction and, accordingly, that this Court had no jurisdiction, pursuant to s 73, to entertain an appeal from it. In Svikart v Stewart[445], it was held that s 52(i) did not apply to places in the Northern Territory acquired by the Commonwealth for public purposes. There are other cases in the same line[446]. Moreover, the correctness of the Court's holding in Teori Tau has either been implicitly or expressly accepted in later decisions[447]. Insofar as dicta of the Court disclaim the theory that territories are "disjoined from the rest of the Constitution"[448] such disjunction is refuted except in respect of lawmaking power for the territories or where provisions of the Constitution are, in terms, apt to apply only to the States[449]. Insofar as more recent decisions of the Court have raised questions about the scope of s 122 and its relationship with the other provisions of the Constitution[450] and the implications therefrom[451], these decisions may be supported by the proponents of Teori Tau by the particular matters they dealt with. Notably, the holding that s 90 of the Constitution (within Ch IV) precludes the Legislative Assembly of a territory, established pursuant to s 122, from imposing duties of excise is explained by the suggested distinction between the express prohibition in s 90 and the restriction on the exercise of federal power in s 51(xxxi).
Various other arguments for holding to Teori Tau are collected in the opinions of Brennan CJ, Dawson and McHugh JJ in this matter. Some of them lay emphasis on the supposed consequences of the opposite theory for the validity of grants of freehold or leasehold title made by the Commonwealth in the Northern Territory after 1911. For the reasons given by Gummow J, I am not convinced that these apprehensions are well founded. If they were, yet were the consequences of the operation of the Constitution properly understood, they could not provide a reason for withholding the meaning which the text required. They would be a reason for hesitation to depart from established authority and for requiring convincing argument to reach the alternative view. But the history of constitutional interpretation in this country, as elsewhere, has been marked by several instances when the holding of the Court has obliged significant rearrangements and readjustments in the rights and duties of those affected by its decisions. This is no more than the application of the rule of law in the constitutional context.
I have taken the pains to mention the foregoing arguments because I do not consider that Teori Tau can be discarded as a mere anomaly in this Court's jurisprudence. If the holding in that case is now to be overruled, this should be done in full recognition of its lineage: appreciating and accepting the significant implications, legal and otherwise, of that course.
Application of s 51(xxxi) to territory laws under s 122
I accept the force of the preceding arguments of a decisional, textual and historical kind. Nevertheless, with respect to the contrary view, I have concluded that the correct interpretation of the constitutional text requires the application of the "just terms" requirement of laws for the acquisition of property by the Commonwealth from a person as much in a territory as elsewhere in Australia. The error of the contrary opinion is such as to authorise, and require, the reversal of the Court's holding in Teori Tau. It necessitates the establishment of the correct constitutional doctrine. To the extent that leave is required to overrule Teori Tau, it should be granted. My essential reasons are as follows:
1. The text of s 51(xxxi), as a matter of language, is apt to include an acquisition pursuant to a federal law made under s 122. The paragraph refers to acquisitions for any purpose "in respect of which the Parliament has power to make laws". Whilst it is true that ss 51 and 52 contain such law-making powers, s 122 likewise does. That section refers to the same law-making organ. The absence of the word "power" from the formula in s 122 is inconsequential, for legislative power there clearly is. The "Parliament" signified in s 51(xxxi) is the same Parliament as is empowered to make laws under s 122. There is thus an explicit control upon the law-making of that Parliament which is not, in terms, confined to law-making outside the territory. Whilst this approach did not commend itself to the Court in Teori Tau, its rejection effectively endorsed the view that s 122 is "disjoined from the rest of the Constitution" as Dixon J said it could not be[452]. It is much more persuasive and, I think, orthodox constitutional interpretation to read down the amplitude of the general grant of legislative power in s 122 to "make laws for the government of any territory" so its content is understood together with the other provisions of the Constitution, particularly those which were designed, as s 51(xxxi) was, to provide "a constitutional guarantee of just terms"[453]. It is an elementary rule of the interpretation of constitutions that provisions of such a protective kind are given the liberal construction appropriate to such constitutional guarantees[454]. The narrow view hitherto adopted is inappropriate to the constitutional language of s 51(xxxi), understood in this sense.
2. The absence from s 122 of the phrase "subject to this Constitution" is also unimportant. That phrase has been described as "superfluous"[455], given that it is another rudimentary requirement of constitutional construction that each provision in the document must be read with all other provisions[456]. Since the Constitution must be read as a whole, the words "subject to this Constitution" in ss 51 and 52 are strictly unnecessary. Put another way, the words can be implied into s 122. This point was made by Dixon CJ in Lamshed v Lake[457] when his Honour said "I have always found it hard to see why s 122 should be disjoined from the rest of the Constitution".
The contrary view is ultimately untenable, not simply as a matter of verbal construction but also when the purpose of the Constitution is kept in mind. That purpose, relevantly, was to provide for the harmonious interrelationship of the government of the Commonwealth and all its parts, including the territories. The territories were not, in law or in political reality, "quasi foreign countr[ies] remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament"[458]. Kitto J's thoughts in Lamshed v Lake[459] were correct:
"[T]he fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories."
3. When it comes to the implications which are to be derived from the structure and organisation of the Constitution, they too support this approach. It seems unlikely that a fundamental law made by the people of Australia and establishing a Parliament elected by, and responsible to, the Australian people, would have contemplated the government of the territories as akin to federal fiefdoms, beyond the protection of the relatively few guarantees of rights thought so fundamental to the rest of the people of Australia that they had to be expressly stated in the constitutional text. To exclude the people in the territories from the rights conferred by the "constitutional guarantee" of just terms in s 51(xxxi), would have necessitated a much clearer expression of exemption. None exists. Where a special limitation on the powers of a Parliament is expressed in clear terms, the orthodox application of the principles of constitutional interpretation states[460]:
"'[I]t is in accordance with the soundest principles of interpretation to treat the conferral of an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification'."
That principle has been applied by this Court many times in relation to the interaction of s 51(xxxi) and other heads of legislative power in s 51. The same rule applies, with precisely the same force, in respect of other grants of legislative power appearing in the Constitution, including s 122.
4. The foregoing is not to deny that the territories power in s 122 may properly be described as "plenary". Nor does it refute the amplitude of the power or its analogies to the general powers of government enjoyed by a State in relation to its own domain. But where there is an express constitutional safeguard, restriction or qualification, it does not erase the plenary power. It simply controls its exercise in relation to that particular subject matter specifically provided for. In explaining why the power to extract taxation is outside the requirement of "just terms" in s 51(xxxi), it is usually pointed out that the express power to tax people necessarily involves the contemplation of the acquisition of the taxpayer's property[461]. However, the general power to make laws for a territory of the Australian Commonwealth does not necessarily require the uncompensated acquisition of property. There is no necessary reason to exclude the requirement of just terms. The Court should, instead, follow the course of interpretation which it has taken where it has been argued that an express head of power, supported, perhaps, by the express incidental power, authorises an acquisition of property without the constitutional precondition stated in s 51(xxxi). Within the boundaries of s 51, the Court has always insisted that the express constitutional promise of just terms in par (xxxi) has to be fulfilled, whatever the other constitutional source or sources of the law under which the acquisition is purportedly effected[462].
5. The contrary view can also be tested by the bizarre consequences which would flow according to its logic. They suggest that the opposite interpretation should not be accepted. For example, the "plenary" view of s 122, taken to its extreme, led Gibbs J to question whether the guarantee in s 116 of the Constitution against the making of federal laws for establishing any religion applied to federal laws for the territories[463]. Although Barwick CJ, delivering the judgment of the Court, drew back from this consequence in Teori Tau[464] it is, in truth, a logical extension from totally disjoining s 122 from the rest of the Constitution. After all, s 116 appears in Ch V titled "The States". An uncompromising view of the separateness of the several Chapters of the Constitution, and the particular separateness of s 122, supports Gibbs J's opinion. Yet it scarcely seems likely to have been the purpose of the Framers. It is not necessary to the constitutional text which they adopted. At least it is not necessary if the unity and integration of the whole draft is respected[465]. Nor is the thesis that s 51 is confined to "federal", as distinct from territorial, concerns convincing. It has been commonly assumed that s 51(xxxix) is available to expand the power conferred on the Parliament by s 122 to make laws for the government of any territory[466]. Yet once that supplementation by s 51 is acknowledged as a possibility, it is untenable, in logic, to adhere to the strict divide. If the incidental power is available to permit the Parliament to enact a law having extra-territorial operation outside a territory (as this Court has held[467]), the logic of that determination must be that acquisitions effected by the Commonwealth under a law made by the Parliament reliant on s 122, although in a State or even from a State, would not entail the constitutional entitlement to "just terms". Such a proposition has only to be stated to show the absurdities which result from such a rigid disjunction of the territories power from the rest of the Constitution.
6. The more recent authority of this Court has evidenced a gradual retreat from the approach of complete disjunction and a return to Dixon J's insistence upon viewing the territories power in its context in a Constitution established by and for the people of Australia for the entire government of their country, including the territories[468]. Perhaps this movement reflects an appreciation of the changes of the political realities upon which the Constitution must operate as much as fresh insights into the text and this Court's decisional authority. No longer is s 122 of the Constitution necessary for the contemplated or prospective government of colonies such as Papua-New Guinea and Fiji, with their distinct needs, as originally envisaged when the Constitution was drafted[469]. Now, the power must be read as part of a constitutional document providing for the government only of the Australian people, including those who live in the mainland and island territories of the Commonwealth. They constitute one people and Australia is one country[470]. It is for such a people and country that