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High Court of Australia |
WORTHING v. ROWELL AND MUSTON PTY. LTD. [1970] HCA 19; (1970) 123 CLR 89
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Menzies(4), Windeyer(5), Owen(6) and
Walsh(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Places acquired by Commonwealth for public purposes - Exclusive legislative power of Commonwealth Parliament - Extent of power - State law made after acquisition of place - Whether operative in place - The Constitution (63 & 64 Vict. c. 12), s. 52 (i.) - Scaffolding and Lifts Act, 1912 (N.S.W.) - Regulations thereunder - Judiciary Act 1903-1965 (Cth), s. 40A.
HEARING
Sydney, 1969, October 29-31; 1970, June 26. 26:6:1970DECISION
1970, June 26.2. As a question as to the limits inter se of the constitutional powers of the Commonwealth and of the State of New South Wales was thus involved, the action commenced in the Supreme Court of New South Wales has been removed into this Court by the operation of s. 40A of the Judiciary Act 1930-1965 (Cth). Other questions arise in the action both between these and other parties but this Court is presently concerned only with the question I have stated. (at p93)
3. Section 52 (i.) of the Australian Constitution provides :
"52 The Parliament shall, subject to this Constitution,
have exclusive power to make laws for the peace, order, and
good government of the Commonwealth with respect to -
(i.) The seat of government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes." (at p93)
4. It is common ground between the parties that the Richmond Air Base is a
place acquired by the Commonwealth for public purposes
within the meaning and
operation of s. 52 (i.). It is also common ground that the State regulation
was made subsequently to such acquisition. The regulation is of general
application purporting to operate throughout the State of New South Wales. If
one had need to designate its subject matter, it is
a law with respect to the
safety of workmen during building operations. Generally, one is not concerned
to assign a subject matter
to a law of a State whose legislative power is an
undifferentiated residue after the vesting of legislative power in the
Parliament
with respect to a variety of topics. However, it is said that
because of the language of s. 52 (i.) it is important in this case to identify
the subject matter of the State regulation. (at p94)
5. Section 52 (i.) has not received much judicial attention during the past sixty-seven years of the life of this Court. Its meaning and scope has not been decided by the Court. But some views, by no means unanimous, have been expressed by individual justices. (at p94)
6. Before this Court was constituted in the year 1903, the Supreme Court of New South Wales in R. v. Bamford (1901) 1 SR (NSW) 337 , by majority, decided that the Postage Act of New South Wales (31 Vic. No. 4) was in force within the area of a post office on 15th August 1901, i.e. after the proclamation of the Commonwealth of Australia and the commencement of the operation of the Constitution of the Commonwealth and after the date fixed by a proclamation made under s. 69 of the Constitution for the transfer to the Commonwealth of the State Departments of Posts, Telegraphs and Telephones. Thus by virtue of s. 85 of the Constitution the post offices of the State of New South Wales, amongst other property, had by then become vested in the Commonwealth. The ground on which the Supreme Court so decided was that the Postage Act of New South Wales, being a law in force in the colony of New South Wales which under the Constitution became a State, was continued in force throughout the State of New South Wales by virtue of s. 108 of the Constitution. The Court unanimously decided that the post offices were places "acquired by the Commonwealth for public purposes" within the meaning of s. 52 of the Constitution, the vesting by s. 85 of the Constitution being relevantly an acquisition by the Commonwealth. The majority of the Court, however, was unwilling to treat the acquisition by the Commonwealth of a place within a State for public purposes as the excision of that place from the territory of the State so approximating the situation of a territory of the Commonwealth falling within the operation of s. 122 of the Constitution. Thus the Court by majority held that the area occupied by the post office did not cease to be part of the territory of the State of New South Wales. (at p94)
7. In The Commonwealth v. New South Wales [1923] HCA 34; (1923) 33 CLR 1, at p 46 Isaacs J. took the view that s. 52 (i.) was "shaped" in its enacted form to ensure that land acquired by the Commonwealth, not being in Commonwealth territory, should be effectively free from State jurisdiction. He evidently treated land acquired as a "place acquired" within the meaning of s. 52. He seems also to have been of the opinion that the Commonwealth's power to legislate in respect of such land was greater than the power of the Congress to legislate with respect to the "public lands" of the United States. He concluded his reference to the terms of s. 52 by saying: "The grant of exclusive power carries an inevitable inference with it. It shows that the proprietorship and the sovereignty were intended to go together in this respect". Isaacs J. (1923) 33 CLR, at pp 54-55 also thought that both the vesting of land by s. 85 of the Constitution and the compulsory acquisition of land under the Lands Acquisition Act 1906 (Cth) placed the land outside the operation of the real property laws of the State. (at p95)
Higgins J.(1923) 33 CLR, at p 60 on the other hand thought that the words "place acquired" by the Commonwealth in s. 52 do not apply to lands acquired as property under the Lands Acquisition Act 1906 ; they refer to "places" acquired in the sense of s. 122 "territories acquired in a political sense". His Honour did not think that upon acquisition the acquired lands became an "enclave" within the territory of the State concerned. (at p95)
9. The meaning of s. 52 thus arises for decision without any prior decision of this Court. However, we are not presently concerned with the question whether a State law passed or made antecedently to the acquisition by the Commonwealth of a place for public purposes within the meaning and operation of s. 52 continues to operate with respect to acts done in that place after the place has been so acquired either at all or until some inconsistent law of the Commonwealth is made. Consequently I shall not express any opinion on that situation. Nor are we really concerned here to decide whether what Isaacs J. referred to as "sovereignty" in and over the places acquired by the Commonwealth for public purposes passes to the Commonwealth on the acquisition. The sole question in this case is whether after acquisition within the operation of s. 52 of the Constitution, the State may validly legislate to control acts and matters done or occurring within the area of the place so acquired. Here the regulations under the State Act were made after the acquisition of the land on which the Commonwealth has constructed an aerodrome for defence purposes. It is conceded that the State could not make a law applying only or specifically to a place acquired within the meaning and operation of s. 52. Thus, the question for decision is whether a general law of a State made subsequently to the acquisition by the Commonwealth of a place for public purposes within the meaning and operation of s. 52 (i.) of the Constitution will validly operate in that place, there being no relevant Commonwealth legislation. Though this is the immediate question before the Court, because all that falls within the Commonwealth legislative power under s. 52 is by reason of its exclusive nature denied to the legislatures of the States, the answer to that question will be found in the extent of Commonwealth power under s. 52. (at p96)
10. I think that in approaching the construction of this provision of the
Constitution it is well to be reminded that it is a constitutional power to
legislate which we have to interpret.
" . . . where it becomes a question of construing words usedThe first of these quotations is from the judgment of O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 367, 368 The second quotation is from the judgment of Higgins J. in Attorney-General (N.S.W.) v. Brewery Employees' Union (N.S.W.) [1908] HCA 94; (1908) 6 CLR 469, at pp 611, 612 The third quotation, quoted in the judgment of Higgins J. in the same case, is from Story's Commentaries, 2nd ed., s. 455. All the passages were quoted by Dixon J., as he then was, in Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at pp 332, 333 (at p96)
in conferring a power of that kind on the Commonwealth
Parliament, it must always be remembered that we are interpreting
a Constitution broad and general in its terms, intended
to apply to the varying conditions which the development of
our community must involve.
For that reason, where the question is whether the Constitution
has used an expression in the wider or in the narrower
sense, the Court should, in my opinion, always lean to the
broader interpretation unless there is something in the context
or in the rest of the Constitution to indicate that the narrower
interpretation will best carry out its object and purpose."
" . . . although we are to interpret the words of the Constitution
on the same principles of interpretation as we apply to
any ordinary law, these very principles of interpretation
compel us to take into account the nature and scope of the
Act that we are interpreting - to remember that it is a
Constitution, a mechanism under which laws are to be made, and
not a mere Act which declares what the law is to be."
"While, then, we may well resort to the meaning of single
words to assist our inquiries, we should never forget, that it
is an instrument of government that we are to construe."
11. Perhaps the first step in determining the extent of the power given by s. 52 is to decide whether land vested in or acquired by the Commonwealth is relevantly a place. In my opinion, the seat of government is a place, required by the Constitution to be geographically situated in relation both to the City of Sydney and the territory of the State of New South Wales as well as to territories of the Commonwealth. It must not only be so situate but must be vested in and belong to the Commonwealth, see s. 125 of the Constitution. The expression "Seat of Government" as found in the Constitution of the United States, whence its use in our Constitution derived, clearly refers to a physical area of land. See terms of art. I, s. 8, cl. 17 of the Constitution of the United States. A place, in my opinion, is an area of the earth's surface, of its subjacent soil or of its superincumbent air to the possession of which a right may by law be had or obtained. Such a conclusion is in conformity with the construction of the word "places" in the said cl. 17 of the Constitution of the United States. See for example Battle v. United States [1908] USSC 67; (1907) 209 US 36 (52 Law Ed 670) It seems to me that the word "place" is used in s. 52 somewhat in contradistinction to a territory acquired by the Commonwealth to which s. 122 has relevance. The difference between a place and a territory is perhaps more than one of degree or extent. A territory of necessity is comprised of an area of land usually of considerable extent but, as well, in general already subject to some political arrangements. But this distinction is not necessarily, in my opinion, definitive of any difference in the extent of the relevant legislative power of the Commonwealth, a matter into which I find it unnecessary to go for the resolution of the present matters. With due respect, I am unable to accept the view of Higgins J. to which I have already made reference. Certainly, in my opinion, the area of land which comprises Richmond Aerodrome is relevantly a place. (at p97)
12. Those responsible for the drafting of the Constitution had before them the example of the Constitution of the United States of America and were well aware of the then recorded experience of the operation of that Constitution over a period of many years before the closing years of the nineteenth century. That Constitution, it must be remembered, resulted from, and expressed, a compact between independent and sovereign states for a union between them in which respect it was basically unlike our own Constitution, which is an Imperial statute albeit deriving from political and, through referenda, popular agreement in Australia, providing for the union of the people of the six colonies, then all under the Imperial Crown, in the Commonwealth. Though selfgoverning, the colonies were neither sovereign nor independent. Our forefathers in drafting the Constitution, aware of this fundamental distinction, observed the need, and had the opportunity, to provide against the disadvantages which they could observe to have flowed from the Constitution of the United States by making provisions suitable to the different situation of which I have spoken. (at p98)
13. I think it profitable, therefore, before attempting the construction of
s. 52 to recall the situation of the Congress in relation to lands acquired by
the United States which when acquired were within the territory
of a State. By
art. IV, s. 3 of the Constitution of the United States, the Congress was given
power to ". . . make all needful Rules and Regulations respecting the
Territory or other
Property belonging to the United States"; thus, "In the
Territories of the United States, Congress has the entire dominion and
sovereignty,
national and local, Federal and State, and has full legislative
power over all subjects upon which the legislature of a State might
legislate
within the State . . ." per Mr. Justice Gray for the Court in Simms v. Simms
[1899] USSC 168; (1899) 175 US 162, at p 168 [1899] USSC 168; (44 Law Ed 115,
at p 117) . But quite apart from
territories which it governed, the United States could, with the consent of
the
State concerned,
acquire by purchase land within a State for the erection
of forts and other buildings for the purposes of defence
or the discharge
of
other duties devolving upon it. See art. I, s. 8, cl. 17 of the Constitution
of the United States. Having so acquired land within a State, that clause
granted to the Congress legislative power with respect
to it. Clause 17
granting legislative power is as follows:
"To exercise exclusive Legislation in all Cases whatsoever,It had been held by Marshall C.J. in the Supreme Court of the United States in 1818 that the grant of the power of exclusive legislation was a grant of exclusive jurisdiction, see United States v. Bevans (1818) 4 Curtis 231, at p 234; [1818] USSC 18; 3 Wheat 336, at p 388 [1818] USSC 18; (4 Law Ed. 404, at p. 417). ; and by Story J. in that Court in 1820 in United States v. Cornell (1820) 2 Mason's Reports 91, at pp 96-97 that "a fort ceded to and within the exclusive jurisdiction of the United States" by virtue of the said clause "was not within the body of any county of the state in question", for the State had no jurisdiction there. It was as to the State, as with a foreign territory, as if it had been occupied by a foreign sovereign. "I mention this" said the learned judge "only in passing, not meaning to rely upon it, and suggesting it only for further consideration, whenever any case may specially require it." By 1884, these views of Story J. had become current doctrine. In that year in Fort Leavenworth Railroad Co. v. Lowe [1885] USSC 161; (1885) 114 US 525, at pp 532, 533 [1885] USSC 161; (29 Law Ed 264, at p 267) it was held that the effect of the grant of legislative power by the said cl. 17 was, upon the acquisition with the consent of the State, to transfer political jurisdiction and dominion. (at p99)
over such District (not exceeding ten miles square) as may,
by Cession of Particular States, and the Acceptance of Congress,
become the Seat of Government of the United States, and to
exercise like Authority over all Places purchased by the
consent of the Legislature of the State in which the Same
shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards and other needful Buildings."
14. Though a right of eminent domain in the Congress is not to be found in the express provisions of the Constitution of the United States, the Supreme Court, in a series of cases has decided that such a right results by necessary implication. See United States v. Gettysburg Electric Railway Co. [1896] USSC 28; (1895) 160 US 668 (40 Law Ed 576) ; Kohl v. United States [1875] USSC 86; (1875) 91 US 367 (23 Law Ed 449); Monongahela Navigation Co. v. United States (1892) 148 US 312 (37 Law Ed 463) , and Chappell v. United States [1896] USSC 2; (1895) 160 US 499 (40 Law Ed 510) . It had been so decided by the year 1875. It had also been decided by the Supreme Court by 1885 that in the exercise of its right of eminent domain the United States did not need the consent of the State to the acquisition of land within that State. But such an acquisition did not operate to transfer to the United States political jurisdiction and dominion over the acquired land. See Fort Leavenworth Railroad Co. v. Lowe [1885] USSC 161; (1885) 114 US 525 (29 LawEd 264) . Thus, lands so acquired remained within the territorial jurisdiction of the State concerned and the rights of the United States in the land were no more than those of a proprietor, subject only to the right of the United States to legislate to protect its own property. See for example Fort Leavenworth Railroad Co. v. Lowe [1885] USSC 161; (1885) 114 US 525, at p 531 [1885] USSC 161; (29 Law Ed 264, at p 266) (at p99)
15. Not having to provide for a union of sovereign independent States, the founders of the Constitution had no need to provide for the consent of the States to the acquisition by the Commonwealth of property within the territorial limits of a State. Thus s. 51 (xxxi.) gives to the Parliament legislative power to provide for the acquistion of property on just terms not only from any person but from any State for any purpose in respect of which the Parliament has power to make laws. This paragraph of s. 51 contrasts sharply with the provision of cl. 17 which not only requires the consent of the State but limits the purposes for which the land may thus be acquired. Also, the doctrine developed by the Supreme Court of the United States that a State may in giving its consent properly and effectively retain some part of its jurisdiction can have no place under our constitutional arrangements. The absence from the Constitution of the United States of any express power of acquisition of property is also in contrast. It is true that, as I have mentioned, a right of eminent domain inherent in the Constitution has been uncovered by judicial decision, as well as the power of the Congress to protect the property of the United States. But in the Constitution of the Commonwealth at least the first of such matters is not left to implication. The legislative power of the Parliament in respect of the acquisition of property is unlimited except by the need for an appropriate purpose for the acquisition and the presence in the legislation of or for providing for just terms. As well, the power to legislate for the acquisition of property is not limited to providing for acquisition by the Commonwealth but extends to provision by legislation for acquisition by any person. (at p100)
16. The difficulties which beset the administration of the United States because of the constitutional provisions to which I have referred were thus apparent to the draftsmen of our own Constitution. Having provided for the acquisition of property by means of laws made under s. 51 (xxxi.) the founders placed s. 52 in the Constitution. They used in the section the essential words of the formula found in art. I, s. 8, cl. 17 "have exclusive power" etc., words which had been held in America to be sufficient to transfer "political jurisdiction and dominion" to the Congress in respect of the places to which that clause applies. Further, s. 52 gives the same legislative power to the Parliament with respect to all places acquired by the Commonwealth for public purposes as are given with respect to the seat of government, an association of legislative powers also to be found in art. I, s. 8, cl. 17 of the Constitution of the United States. (at p100)
17. Before I express my view of the construction of s. 52 in presently relevant respects there are further matters to be borne in mind. The Commonwealth of Australia comprehends all the territory formerly forming the colonies. To say that a valid law operates throughout the Commonwealth is not merely to say that it operates in each State territory. Each State is a part of the Commonwealth: see covering cl. 6. This situation is different from that arising under the Constitution of the United States which is as its name implies a union of States to which union certain powers are conceded. (at p100)
18. The power given by s. 52 is legislative and exclusive. It is given to the national Parliament. The consequences of so doing are observed upon by Chief Justice Marshall in Cohens v. Virginia [1821] USSC 18; (1821) 6 Wheat 264, at p 428 [1821] USSC 18; (5 Law Ed 257) Most of the legislative powers given to the Parliament are given by s. 51 and are concurrent powers, though by reason of s. 109 as interpreted by this Court, the exercise by the Parliament of such a power may, according to the extent of the exercise, make the legislation of the Parliament the exclusive law in its field. However, there is particular significance in the express creation by the Constitution of exclusive legislative power in the Parliament. (at p101)
19. As I have mentioned, the nature and extent of the power to legislate will be the same in ambit and extent in respect of the places acquired as it is with respect to the seat of government. Although the verbal formula adopted in expressing the grant of power is the same as that employed in s. 51, i.e. "with respect to", where the legislative power is referable to subject matter, it is, in my opinion, hardly conceivable that the seat of government should be treated as a mere subject matter in the same sense as any of the topics of legislation with which s. 51 deals. The seat of government can scarce in any sense be equated with "lightships beacons and buoys" in relation to legislative power. In providing for exclusive legislative power with respect to the seat of government, though no doubt the circumstance that it was to be situate within a Commonwealth territory to which s. 122 would apply might render such a course less obviously necessary than it otherwise might have been, the founders in my opinion were giving the national Parliament a significant power not to be limited to laws which had the seat of government "as such" or as a place for their subject matter. I cannot doubt myself that the scope of the laws which can be made under the exclusive power to legislate with respect to the seat of government is limited only by relevance to the seat of government and the activities to be conducted there. Such laws are not to be limited to the control of acts and matters occurring within the area of the seat of government but will, in an appropriate case, doubtless operate throughout the Commonwealth and its territories if so intended. I find no satisfaction in the suggestion that it was intended by the founders of the Constitution by the expression of s. 52 that such laws are to be limited to laws which have the seat of government, as such, for their subject matter. Indeed, I am not sure that I comprehend what would be such a law. (at p101)
20. Equally, I find at least difficulty in the concept of a law about a place, as such, or as it was said in argument, about a place, as a place. But whatever the metaphysical possibilities of such a limitation upon a power to make laws with respect to a place, I am certain that such a concept ought not to be accepted in the construction of a grant to the national Parliament of an exclusive power of legislation. I am unable to conclude that the only laws which were intended to be placed beyond the power of a State by the exclusive nature of the legislative power given by s. 52 were laws passed by the State operating only or specifically in the seat of government or a place acquired by the Commonwealth for public purposes. Indeed I cannot conceive of a State in any practical situation making such a law. With the example of the experience of the United States before them, it would have been most extraordinary for the founders to have given to the Parliament less legislative power than the Constitution of the United States gave to the Congress in respect of places acquired with the consent of the State. Rather, bearing in mind what I have pointed out as to the different situation of the Australian colonies and the American States which at the time of union were not subject to the English Crown, one might well expect a much larger grant to the Parliament. So far as the power of acquisition is concerned, such a larger power is found in s. 51 (xxxi.). It is unlikely that the adoption of a like formula and structure in s. 52 to that of the said art. I, s. 8, cl. 17 of the Constitution of the United States should have been intended to yield a mere - and indeed, in my opinion, an illusory power - to legislate about a place acquired as a place, or as such. It may well be that one should rather adopt the views of Isaacs J. giving full effect to the consequences of the formula used in the said cl. 17 and s. 52 and regarding the founders as having intended by the terms of s. 52 to equate not merely the legislative power of the Parliament to that of the Congress where acquisition is with the consent of a State without reservation but to pass the political dominion as well. But in this case we are dealing with only a limited part of the ambit of the exercise of such a power and I refrain from expressing any view except as to the legislative power which derives from express grant and not from the possession of political dominion. It is sufficient for present purposes to say that a law regulating conduct in a place is, in my opinion, a law with respect to that place within the meaning of s.52 of the Constitution. It would, in my opinion, be none the less so if the law were not confined to the regulation of conduct at that place but extended as well to the regulation of conduct in other places acquired by the Commonwealth for a public purpose or public purposes. A law that a builder, building in a place acquired by the Commonwealth within the meaning and operation of s. 52, should there by means of fencing or otherwise secure the safety of a workman whilst working in that place would, in my opinion, be a law with respect to that place within the meaning of s. 52. Equally a law in such terms as to building carried on and work being done in all places so acquired would be law with respect to each of such places. Such laws would be valid laws of the Commonwealth supported by s. 52 without reference to any other legislative power. I am of opinion therefore that the Parliament could make a law in the terms of the State regulation under consideration to operate at Richmond Aerodrome or there and also at other places acquired by the Commonwealth for public purposes. After the acquisition of the land for the aerodrome, the State in my opinion could not make a law to operate in or on the place acquired, even though its law was general and not limited in its operation specifically to that place. The State regulation is, in my opinion, inoperative in relation to the place where the building operations to which the case relates were being carried on and that the defendant was not bound by reason of that regulation to secure the safety of the plaintiff in the manner prescribed. (at p103)
21. In argument it was suggested that such a conclusion would produce a chaotic situation. But, quite clearly, it need not do so. No doubt, the Parliament will need to legislate to fill a void which a decision in the sense of my opinion will have disclosed. But it can do so referentially and without delay or difficulty merely by continuing by dint of Commonwealth law, the terms of State legislation which would be applicable if the place or places so acquired or for that matter to be acquired had remained within the legislative jurisdiction of the State legislature. By suitable words, amendments of that State law made at any time after acquisition could also be made operative referentially. Or, on the other hand, the Parliament may prefer itself to legislate its own code of behaviour for places acquired for public purposes. Whichever course the Parliament chose the status of State laws made before acquisition could be set at rest. (at p103)
22. In my opinion, the demurrer should be overruled. (at p103)
MCTIERNAN J. These proceedings came before the High Court in accordance with
the provisions of the federal Judiciary Act, ss. 40A,
41. The question on
account of which this part of the cause was removed into this Court is
regarded as involved in the fifth plea.
It is a question as to the limits of
the power of the federal Parliament to legislate "with respect to" the subject
comprehended
by the words "all places acquired by the Commonwealth for public
purposes" in s. 52 of the Constitution, on the one hand, and the power of the
Parliament of New South Wales under which it enacted the Scaffolding and Lifts
Act, 1912 (N.S.W.),
by which the making of regs. 73 (3) and 73 (8) was
authorized, on the other hand. The initial part of each regulation is the
same.
It is as follows:
"Any person who directly or by his servants or agentsBy s. 3 of the Act
carries out any building work shall take all measures that
appear necessary or advisable to minimise accident risk and
to prevent injury to the health of persons engaged in such
building work."
"'Building work' means work in constructing, erecting,Regulation 73 (3) requires that any person on whom it is binding shall
adding to, altering, repairing, equipping, finishing, painting,
cleaning or demolishing which, when done in relation to a
building or structure is done at or adjacent to the site of the
building or structure and which, when done in relation to a
ship is done on or adjacent to a ship in dock or on slips."
". . . provide means by fencing or otherwise for securingand sub-par.(8) requires that such person shall
the safety of any person working at a place from which he
would be liable to fall a distance of more than six feet";
". . . effectively fence in the manner prescribed by these
Regulations, all platforms, the open sides of all floors, openings
in floors, roofs and platforms into which persons could
accidentally walk, the open sides of stairways and stairway landings
and all excavations and holes more than 5 feet deep." (at p104)
2. Section 4 of the Act is as follows:
"This Act shall have effect in the metropolitan policeBy virtue of this section and executive action thereunder, the Act and regs. 73 (3) and 73 (8) operated in relation to work in progress, answering the definition of "building work" wherever in the State of New South Wales such work happened to be carried out. (at p104)
district, and in such other areas as the Governor, by
proclamation published in the Gazette, may direct. Such district
and each such area is referred to in this Act as a district."
3. The counts based on these regulations are the fourth and fifth. The fifth
plea reads thus:
"And for a fifth plea the defendants Roche Bros. as to the
fourth and fifth counts, say that at all material times the land
upon which the alleged building work was being carried out
was the Royal Australian Air Force Base at Richmond in the
State of New South Wales and was owned by and had been
acquired by the Commonwealth of Australia for the purpose
of a Royal Australian Air Force base prior to the coming
into force in New South Wales of the regulations under the
Scaffolding and Lifts Act, 1912, as amended, upon which the
plaintiff sues." (at p105)
4. Apart from s. 52 of the Constitution, the defendants Roche Bros. would
have been bound by the regulations because they were (accepting the
allegations in the fourth and
fifth counts) carrying out "building work"
within the meaning of the Scaffolding and Lifts Act, s. 3, and the
regulations, in New
South Wales. (at p105)
5. In order to clarify the fifth plea, it seems to me to be necessary to attribute to the word "land" the constitutional significance of a "place" for the purposes of s. 52 of the Constitution, and to treat the "land" to which the plea refers as property acquired by the Commonwealth under the federal Lands Acquisition Act. The words "public purposes" in s. 52 extend to a "purpose in respect of which the Parliament has power to make laws", Constitution, s. 51 (xxxi.). (at p105)
6. In The Commonwealth v. New South Wales (1) Higgins J. said :
"Under s. 122 of the Constitution the Parliament mayIf this opinion is correct the fifth plea, which is of course dependent on s. 52 affords no answer to the fourth and fifth counts. The view of Higgins J. is, in my opinion, different from that of Isaacs J. I refer to the passage (1923) 33 CLR, at p 46 beginning : "But as the land" and ending "It shows that the proprietorship and the sovereignty were intended to go together in this respect". (I think that the word "sovereignty" here does not mean total sovereignty.) I also refer to the passage (1923) 33 CLR, at p 47 beginning : "The Constitution suo vigore passes instanter" and ending "The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title". Isaacs J. said (1923) 33 CLR, at p 53 , "but the Constitution itself, once that proprietorship passes, affixes a necessary legal consequence by s. 52 (i)". It is worthy of notice that the paraphrase of s. 52 (i), which Isaacs J. made is in these words (1923) 33 CLR, at p 46:
make laws for the government of any territory surrendered
by any State and accepted by the Commonwealth, or of any
territory placed by the Queen under the authority of and
accepted by the Commonwealth, or otherwise acquired by the
Commonwealth, and may allow the representation of such
territory in either House of the Parliament to the extent and
on the terms which it thinks fit ; and under s. 52 of the
Constitution the Parliament shall, subject to this Constitution,
have exclusive power to make laws for the peace, order and
good government of the Commonwealth with respect to
(1923) 33 CLR, at pp 59, 60
the seat of government of the Commonwealth and all
places acquired by the Commonwealth for public purposes.
In my opinion, the words 'places' acquired by the Commonwealth
in s. 52 do not apply to lands acquired as property
under the Lands Acquisition Act ; they refer to 'places'
acquired in the sense of s. 122, any territoris acquired in a
political sense."
"It enacts that the Commonwealth Parliament shall haveThe words of s. 122 of the Constitution are :
exclusive power to legislate for 'the seat of government of
the Commonwealth, and all places acquired by the
Commonwealth for public purposes'."
"The Parliament may make laws for the government of any(The italics are mine.) (at p106)
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."
7. I think that it is implicit in what is stated by Isaacs J. that the words "all places acquired by the Commonwealth for public purposes" extend to land transferred by s. 85 of the Constitution to the Commonwealth and to land acquired by the Commonwealth under the Lands Acquisition Act. I would not take the view that Isaacs J. considered that s. 52 (i.) extended further than to empower the federal Parliament to make laws with respect to the subject matter which is included in this provision, within the federal system. (at p106)
8. There is no basis for the view that acquisition of land under a law authorized by s. 51 (xxxi.) results in taking the land completely out of the jurisdiction of the State inside the boundaries of which the land is. In my opinion the land referred to in the fifth plea became on acquisition a place within the scope of the words "all places acquired by the Commonwealth for public purposes" and would retain that character as long as the Commonwealth should own it. A law enacted by a State legislature, which is not within the ambit of the power of the federal Parliament under s. 52 (i.) and is otherwise intra vires, would be binding according to its tenor within such places as the Commonwealth had acquired inside the limits of the State, in accordance with a law enacted under s. 51 (xxxi.) of the Constitution. (at p107)
9. The point sought to be made by the pleas is not clear. In order to clarify
it, it is necessary to read the word "land" as intended
to mean "a place"
within the scope of the words "all places acquired by the Commonwealth for
public purposes" in s. 52 of the Constitution. Taking this to be what "land"
means in the context of the plea, the submission made in support of it, was
that the regulations did
not validly apply in respect of the "building work"
in question. The ground of the submission as I apprehended it was, that the
regulations
in question were - though in the generality of their application
throughout the State applicable to "building work" being done on
this land -
invasive pro tanto of the exclusive power of the federal Parliament to make
laws "with respect to" the subject matter
"all places acquired by the
Commonwealth for public purposes". In my opinion this submission is wholly
untenable. I think that it
is appropriate to cite observations made by Dixon
C.J. in Pioneer Express Pty. Ltd. v. Hotchkiss (1958) 101 CLR 536,
at p 549:
"Then it was said that s. 12 as amended, or at all events
s. 3 of Act No. 16 of 1956 (N.S.W.) making the amendment
invaded the exclusive power conferred by s. 52 (i.). No more
can be said about this argument than it simply is not so.
Neither provision could have been enacted in relation to New
South Wales by the federal Parliament in the exercise of the
power given by s. 52." (at p107)
10. Neither reg. 73 (3) nor reg. 73 (8) is a provision which could have been
enacted in relation to New South Wales by the federal
Parliament in the
exercise of the power given by s. 52. The purpose of reg. 73 is set forth by
the words composing the heading of
Pt V. The wording is "Safeguards and
measures to be taken for securing the safety and health of persons engaged in
building work".
It is not enough to make either reg. 73 (3) or reg. 73 (8) a
law with respect to given "places" in New South Wales that it could
apply by
virtue of its general application in relation to "building work" in any of
those places. Latham C.J. expounded the words
"with respect to" in Bank of New
South Wales v. The Commonwealth(1948) 76 CLR, at p 186:
"It is not enough that a law should refer to the subjectIt is clear from the provisions of reg. 73 that its subject matter is not "places" on which "building work" is being carried out. I think that the true subject matter of the regulation is the safety of persons engaged in "building work", wherever it is being carried on in New South Wales. In my opinion a law substantially in the terms of the regulation could not be enacted by the federal Parliament in the exercise of the power given by s. 52. (at p108)
matter or apply to the subject matter : for example, income
tax laws apply to clergymen and to hotelkeepers as members
of the public ; but no one would describe an income tax law
as being, for that reason, a law with respect to clergymen or
hotelkeepers. Building regulations apply to buildings erected
for or by banks ; but such regulations could not properly be
described as laws with respect to banks or to banking."
11. I would allow the plaintiff's demurrer to the fifth plea. (at p108)
KITTO J. This demurrer, in an action begun in the Supreme Court of New South Wales and removed into this Court by the operation of s. 40A of the Judiciary Act 1903-1965 (Cth), raises two questions of law. One is whether land acquired by the Commonwealth for the purposes of a base for the Royal Australian Air Force is within the category referred to in s. 52 (i.) of the Constitution by the description "places acquired by the Commonwealth for public purposes". The other question, arising if the first be answered in the affirmative, is whether, on the proper construction of s. 52 (i.), a place so acquired which is within the geographical boundaries of a State is beyond the application of any law thereafter made by the Parliament of the State for regulating the conduct of persons wherever they may be in the State. For reasons that will appear I am of opinion that the first question should be answered in the affirmative, and I turn at once to the second question. (at p108)
2. The interpretation of s. 52 (i.) has been considered to a limited extent in earlier cases and has been the subject of some helpful academic writing such as the essay "Alsatias for Jack Sheppards ? The Law in Federal Enclaves in Australia", which Professor Zelman Cowen included in his volume Sir John Latham and Other Papers (1965). Nothing useful would be achieved by going over the whole ground again here ; and I must add that I do not find much assistance in the decisions on the comparable but different provisions of the Constitution of the United States. I indicated in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at pp 257, 258 that I read the second limb of s. 52 (i.) as referring only to the making of laws on the specific subject of places fulfilling the given description. Further consideration has served only to confirm that view. I shall state my reasons as briefly as I can. (at p108)
3. In the first place it seems to me impossible to construe the paragraph as referring to lands which the Commonwealth has acquired as territories over which it may exercise political dominion. The natural sense of the provision seems to me to show that the "places" to which it refers are lands in respect of which the Commonwealth has acquired proprietary rights under the laws of the State or Territory in which they are situated. The word "places" I take to be used instead of "lands" because the concept of a "place" is that of a location or site for a purpose - here, a site for the furtherance of public purposes of the Commonwealth. (at p109)
4. It is, I think, important to consider s. 51 and s. 52 as together effectuating the general scheme for the distribution of powers as between Commonwealth and State Parliaments which ss. 107 and 108, despite their late position in the Constitution, may be said to introduce. The first provision of s. 108 continues in force every law in force in a colony at the time it became a State and relating to any matter within the powers of the Parliament of the Commonwealth. This it does subject to the Constitution, and accordingly any inconsistent laws of the Commonwealth will prevail by force of s. 109. Then s. 107 and the second provision of s. 108 address themselves to the powers of the State Parliaments to make future laws. The Parliament of a State retains every power that it had as the Parliament of the former colony, except power that it had as the Parliament of the former colony, except such powers as the Constitution vests exclusively in the Parliament of the Commonwealth (s. 107); and in particular it retains powers of alteration and of repeal in respect of such of its pre-existing laws as are preserved in force (s. 108). The last-mentioned provision is expressly qualified so as to operate only until the Parliament of the Commonwealth makes provision in that behalf; and, as Quick and Garran suggested in their Annotated Constitution of the Commonwealth (1901), art. 449, p. 938, it seems clearly to be subject to an implied qualification so as not to authorize State laws upon matters declared to be within the exclusive power of the Commonwealth Parliament. (at p109)
5. For the carrying out of this scheme two provisions needed to be made and they are found in s. 51 and s. 52 respectively, the one setting out the matters upon which the Parliament of the Commonwealth has non-exclusive power to make laws, the Parliaments of the States retaining their pre-existing powers but Commonwealth laws on those matters prevailing by force of s. 109 over inconsistent State laws, and the other drawing together the matters upon which power is vested in the Parliament of the Commonwealth and denied to the Parliaments of the States. I use the expression "drawing together" because they are all, I think, matters upon which, by reason of other provisions scattered through the Constitution, the Parliament of the Commonwealth would have power, and by necessary implication exclusive power, even if there were no s. 52. The purpose of that section, as it seems to me, is to complement s. 51 so that standing in apposition to one another they will cover the range of Commonwealth legislative power but the essentially exclusive character of the Commonwealth power over some matters within the range shall be made explicit. This may be demonstrated by taking the paragraphs of s. 52 in reverse order. The last paragraph merely repeats by reference such other provisions of the Constitution as give the Commonwealth Parliament exclusive power over matters not mentioned in the first or second paragraph. The second paragraph comprises matters relating to departments of the public service which are transferred to the Commonwealth under s. 69. It seems safe to say first, that on such matters full powers to make laws are already vested in the Parliament of the Commonwealth under s. 51 (v.), (vi.), (vii.) and (ix.); and, secondly, that by declaring those powers to belong exclusively to the Parliament of the Commonwealth s. 52 (ii.) does no more than make explicit what would otherwise be implicit. Then in par. (i.), the first limb, as I read it, merely includes in the list the power which the opening words of s. 125 confers, and of course confers exclusively, upon the Commonwealth Parliament. These considerations show, I think, that it is a mistake to approach the interpretation of the second limb of par. (i.) of s. 52 with an assumption or expectation that either in granting powers to the Commonwealth or in making them exclusive the section intends an addition to the constitutional scheme for the distribution of legislative powers. Its utility is obvious, and in view of the foregoing I see no great force in the objection that the interpretation I place upon par. (i.) treats it as adding little or nothing to what is found expressed or implied elsewhere in the Constitution. Accordingly it seems to me that the second limb fits naturally into the thinking of the section as a whole if it is understood as simply accepting and making explicit what in the nature of things seems obvious, namely that since acquisitions of land by the Commonwealth, whether under s. 51 (xxxi.) or under s. 85, are necessarily for public purposes, purposes of the government of the Commonwealth or purposes authorized by valid laws of the Commonwealth, the Parliament of the Commonwealth, and it alone, is the intended repository of power to make any laws that are to be made on the subject of such lands. (at p111)
6. Consistently with the relation between s. 51 and s. 52 which I have indicated above, s. 52 follows the example of s. 51 in describing the powers it intends the Parliament to possess as powers to make laws for the peace, order and good government of the Commonwealth "with respect to" the topics which it enumerates. The meaning of this expression in s. 51 has been expounded often in this Court. It refers to such a direct and substantial connexion between a law and a specified topic that the law is in point of character a law on that topic. Its character is determined by its legal operation, its effect "in the way of changing or creating or destroying duties or rights or powers", to use the words of Latham C.J. in South Australia v. The Commonwealth (1942) 65 CLR 373, at p 424 To justify giving the expression as used in s. 52 a meaning different from that which it has in s. 51 would surely be too formidable a task. Accordingly, to support an enactment of the federal Parliament as being authorized by the first limb of s. 52 (i.) it is necessary, in my opinion, to find, upon consideration of what the enactment does, that it has the character of a law on the topic of the seat of government of the Commonwealth; not, I think, of a law for the government of the Territory in which the seat of government is situated - for that it is necessary to go to s. 122 - but on the topic of the location of the settled centre of the government of the Commonwealth. And by the same token, it seems to me that to support a law of the Commonwealth as being within the authority of the second limb of s. 52 (i.) it is necessary to find that the law takes as a specific subject matter a place or places acquired by the Commonwealth for public purposes, e.g. an airport acquired by the Commonwealth or such airports generally. (To give exclusive power to make laws with respect to "all places" of a given description seems clearly enough to subject every such place, separately as well as together with all other such places, to the exclusive legislative power.) (at p111)
7. I respectfully adopt the passage in the judgment of Taylor J. in Spratt v.
Hermes (1965) 114 CLR, at p 263 in which he said,
referring to s. 52 (i.):
". . . it presents itself to me as a very special power to makeIf this be true, as I think it is, then since in s. 52 the grant of Commonwealth power and the denial of State power are correlative the conclusion must follow that the denial of State power is, and is only, a denial that the State power which s. 107 continues as at the establishment of the Commonwealth includes power to make a law operating so specifically in relation to any of the matters referred to in the section as to be a law "with respect to" that matter. (at p112)
laws 'for the peace, order, and good government of the
Commonwealth' with respect to specified subject matters,
i.e. the seat of government of the Commonwealth and 'all
places acquired by the Commonwealth for public purposes'
It is not a power to make general laws irrespective of their
subject matter having an operation within the seat of government
and such other places but a power to make laws having
as the subject matter the seat of government or such other
places. As such it authorizes legislation to establish the
seat of government and such other laws as can fairly be said
to be with respect to that subject matter. The contrary
conclusion would mean that whenever the Commonwealth
acquired a parcel of land for public purposes it would thereby
acquire an exclusive legislative power to make general laws
for the government of such places (cf. R. v. Bamford
(1901) 1 SR (NSW) 337)
but a comparison of the legislative form of s. 51 with that of
s. 52 strongly militates against such a conclusion."
8. The State law here in question is a regulation made under the authority of the Scaffolding and Lifts Act, 1912 (N.S.W.). It is general in its terms, placing an obligation upon any person who, anywhere in New South Wales, carries out any building work. It makes no special provision in regard to any place acquired by the Commonwealth for public purposes. In my opinion it cannot be described as a law "with respect to places acquired by the Commonwealth for public purposes", and therefore its statutory authorization was not, by reason of s. 52 (i.), beyond the legislative power of the State of New South Wales. (at p112)
9. In my opinion the demurrer should be upheld. (at p112)
MENZIES J. This is an issue between a worker, Worthing, and his employer, the defendant Roche Bros., in an action brought by the worker which included counts against his employer for breach of statutory duty, viz. reg. 73 of the regulations made under the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended. (at p112)
2. This regulation is as follows:
"73. Any person who directly or by his servants or agentsTo this count a fifth plea was made as follows:
carries out any building work shall take all measures
that appear necessary or advisable to minimise accident
risk and to prevent injury to the health of persons
engaged in such building work and for this purpose,
without limiting the generality of the foregoing, he
shall -
. . . . . . . . . .
(3) provide means by fencing or otherwise for securing
the safety of any person working at a place from
which he would be liable to fall a distance of more
than six feet."
". . . that at all material times the land upon which theTo this plea the plaintiff demurred. (at p113)
alleged building work was being carried out was the Royal
Australian Air Force Base at Richmond in the State of New
South Wales and was owned by and had been acquired by
the Commonwealth of Australia for the purpose of a Royal
Australian Air Force base prior to the coming into force in
New South Wales of the regulations under the Scaffolding and
Lifts Act, 1912, as amended, upon which the plaintiff sues."
3. The point of difference is whether s. 52 of the Constitution of the Commonwealth of Australia prevents the regulations in question from applying to the building work being carried on by Roche Bros. upon the Richmond Aerodrome, being a place which had been acquired by the Commonwealth for public purposes before the making of the regulations. (at p113)
4. Section 52 is a provision of the Constitution which has not been the
subject of a great deal of judicial exposition. Primarily it is, of course, a
grant of legislative power to
the Parliament. It has, however, a secondary
aspect; to the extent to which it grants legislative power to the Parliament,
it denies
legislative power to the Parliaments of the States. The denial is
measured by the grant. Such cases as there are - like this one
- have been
concerned with the denial rather than with the grant, although Dixon J., as he
then was, in Federal Capital Commission
v. Laristan Building and Investment
Co. Pty. Ltd. [1929] HCA 36; (1929) 42 CLR 582, at p 585 regarded laws such as the Seat of
Government Acceptance Act 1909 (Cth) and the Seat of Government
(Administration) Act 1910 (Cth) as laws made under s. 52 of the Constitution.
His Honour prefaced his reference to these statutes by saying:
"This case arises in the seat of government, and s. 52His Honour also said:
provides that the 'Parliament shall, subject to this Constitution,
have exclusive power to make laws for the peace, order, and
good government of the Commonwealth with respect to (1.)
the seat of government of the Commonwealth.'"
"Section 122 is dealing, at least primarily, with Territories
which do not form part of the Federal system. . . . The seat of
government is an integral part of the federal system, and I see
no reason for denying the application of s. 76 to laws made
pursuant to s. 52 (1.)." (at p114)
5. In Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR
29, at p 83, Dixon J. said that, in
so far as the
Airlines Act applied to the
seat of government, it did so by virtue
of s. 52 (i.) rather than s. 122.
These observations
reveal an
opinion that the generality of laws made for the
government of the
seat of government, including laws making provision
for
courts
having jurisdiction therein, are made under s. 52. Similarly in Davies
v. Ryan (1934) ALR98 Evatt J. considered that the
jurisdiction
of the High
Court derived from the Judiciary Act, s. 34A, to hear
an appeal from the
judgment of the court of the territory
for the
seat of government, might be
ultimately referable to s. 52. There
can be no doubt that the observations of
these two learned
judges
indicate a view that s. 52 does confer power upon the
Parliament
to make general laws with respect to the seat of government
of the
Commonwealth. It has been suggested that the seat of government
of the
Commonwealth is not a place, but the terms of s. 125
leave
me in no doubt that
it is. It is within a territory; it is vested
in and belonging to the
Commonwealth - i.e. if the place
determined
by Parliament within the territory
should be owned otherwise
than by the Commonwealth, it becomes the property of
the
Commonwealth
by force of s. 125 itself; it must be in New South Wales and
it must be not less than 100 miles from Sydney. I do not
see how these
requirements can apply to anything which is not a place. There
is no doubt
that in the United States of America it
is a place - a
defined area of land -
which became the seat of government of
the United States. See art. I, ss. 8
and 17 of the Constitution of the United States. In my opinion the Australian
Constitution likewise contemplated that Parliament should determine that a
place is to be the seat of government and s. 52 (i.) is a grant of power to
make laws with respect to that place. This latter power is a power separate
and distinct from the power
to make laws for a larger area - the Australian
Capital Territory - under s. 122 of the Constitution. The acknowledged
existence of the full power of Parliament to make laws for the larger area
has, it seems, made it unnecessary to
define the limits of the power conferred
by s. 52 (i.) to make laws for the seat of government of the Commonwealth. See
Spratt v. Hermes (1965) 114 CLR, at p 271 . In the case just
cited two members
of the Court did, however, express opinions that the legislative power
conferred upon the Parliament by s. 52 (i.) is a restricted power. Thus Kitto
J. said (1965) 114 CLR, at p 258:
"By s. 52 (i.) the Parliament is given exclusive power toTaylor J. said(1965) 114 CLR, at pp 262, 263:
legislate for the peace, order and good government of the
Commonwealth with respect to the seat of government of
the Commonwealth, and all places acquired by the Commonwealth
for public purposes. The power under the first limb
of s. 52 (i.) extends only, I think, to the making of laws on
the subject of the seat of government as a specific and separate
topic of legislation to be distinguised from more general
topics which may affect a place in which the seat of government
is or is to be - just as the second limb extends only, I
should suppose, to laws on the specific subject of places
fulfilling the given description. It is the seat of government
as such, and places acquired, etc., as such, which I understand
to be referred to in s. 52 (i.)."
"In the second place I do not understand s. 52 (i.) as a
provision intended to invest the Parliament of the Commonwealth
with legislative authority to make laws for the general
government of such territory as is found to comprise the seat
of government, or, for that matter, of 'all places acquired by
the Commonwealth for public purposes'. On the contrary
it presents itself to me as a very special power to make laws
'for the peace, order, and good government of the Commonwealth'
with respect to specified subject matters, i.e. the
seat of government of the Commonwealth and 'all places
acquired by the Commonwealth for public purposes'. It is
not a power to make general laws irrespective of their subject
matter having an operation within the seat of government
and such other places but a power to make laws having as
the subject matter the seat of government or such other
places. As such it authorizes legislation to establish the seat
of government and such other laws as can fairly be said to
be with respect to that subject matter. The contrary
conclusion would mean that whenever the Commonwealth
acquired a parcel of land for public purposes it would thereby
acquire an exclusive legislative power to make general laws
for the government of such places (cf. R. v. Bamford
(1901) 1 SR (NSW) 337) but
a comparison of the legislative form of s. 51 with that of s. 52
strongly militates against such a conclusion." (at p115)
6. I have touched upon the power of the Parliament under s. 52 (i.) to make
laws with respect to the place which Parliament has determined to be the seat
of government of the Commonwealth because
it seems to me unmistakable that the
power to make laws with respect to "all places acquired by the Commonwealth
for public purposes"
is a power of the same order. (at p115)
7. The cases, other than those already referred to, touching upon the extent of the denial of State legislative power effected by s. 52 are The Commonwealth v. New South Wales [1923] HCA 34; (1923) 33 CLR 1 ; R. v. Bamford (1901) 1 SR (NSW) 337; Kingsford Smith Air Services Ltd. v. Garrisson (1938) 55 WN (NSW) 122 ; and Wollaston's Case (Re Income Tax Acts (No. 4)) (1902) 28 VLR 357 (at p116)
8. The question in R. v. Bamford (1901) 1 SR (NSW) 337 was whether, the post
office at Armidale in New South Wales having been transferred
to the
Commonwealth by virtue of s. 69 of the Constitution and a proclamation
thereunder, a person could nevertheless be proceeded against for theft thereon
by virtue of s. 69 of the Postage
Act (N.S.W.). By a majority the court held
that the person was liable to be indicted for the offence under the State Act
and tried
before a State court. The majority rejected the argument that the
State law ceased to be in force in the post office upon its being
taken over
by the Commonwealth. It did so, however, relying upon ss. 107 and 108 of the
Constitution to preserve the operation of existing laws while affirming that,
in the future, the Parliament of the State could, because of s. 52, do no more
than alter or repeal the State laws applying to the post office at the time of
the transfer. Stephen J. dissented, holding
that the Armidale post office was
"no longer within the territory of New South Wales or subject to its
legislature". The acceptance
of the reasons of the majority or of Stephen J.
would involve the consequence that, in this case, the regulations under the
Scaffolding
and Lifts Act, 1912 (N.S.W.), relied upon by the plaintiff had no
application at the Richmond Aerodrome for all the reasoning accorded
to the
Parliament of the Commonwealth the exclusive power to make general laws having
application in the post office. In Wollaston's
Case (1902) 28 VLR 357 the
decision was no more than that a customs house vested in the Commonwealth
under s. 85 of the Constitution did not, upon such vesting, cease to be in
Victoria, with the consequence that salary earned therein was not earned "in
Victoria".
This decision differs from the view of Stephen J. in R. v. Bamford
(1901) 1 SR (NSW) 337 In Kingsford Smith Air Services Ltd. v.
Garrisson (1938)
55 WN (NSW) 122 it was decided that the Metropolitan District Court had
jurisdiction to hear an action for damages
for negligence in the management
and control of an aeroplane at the Kingsford Smith Aerodrome at Mascot which
had been acquired by
the Commonwealth under s. 51 (xxxi.) and the High Court
refused to grant an order nisi for prohibition. In The Commonwealth v. New
South Wales
[1923] HCA 34; (1923) 33 CLR 1
, Isaacs and Higgins JJ., expressed conflicting
views upon the construction of s.52. Isaacs J. said as to lands transferred
from New South Wales to the Commonwealth by virtue of s. 85 of the
Constitution (1923) 33 CLR, at p 46:
"But as the land - not being in Commonwealth 'territory'The view taken by Higgins J. was that s. 52 applied not to places such as post offices or court houses or aerodromes but to territories acquired in a political sense to which s. 122 applies. From this review it appears that the judicial observations upon s. 52 are both conflicting and inconclusive. (at p117)
properly so called, that is, outside a State - remains in the
State boundaries, it was necessary to provide that the
governmental powers of the Commonwealth - exclusive in themselves
- should, for the purpose for which the land was
transferred, be entirely free from State jurisdiction. To this end
s. 52 (i.) was shaped in the form in which it exists. It enacts
that the Commonwealth Parliament shall have exclusive
power to legislate for 'the seat of government of the
Commonwealth, and all places acquired by the Commonwealth for
public purposes'. Even in America, it may be necessary to
repeat, where no such explicit law exists, it is held that the
Congress may validly legislate for the protection of its public
lands, even within a State. As Brown J. said for the Court,
in Camfield v. United States
[1897] USSC 142; (1897) 167 US 518, at p 526 [1897] USSC 142; (42 Law Ed 260, at pp 262, 263)
, 'a different rule would place
the public domain of the United States completely at the
mercy of State legislation'. This was a decision in 1897,
and the later Commonwealth Constitution has provided
specifically, and in larger terms, for the federal power. The
grant of exclusive power carries an inevitable inference with
it. It shows that the proprietorship and the sovereignty were
intended to go together in this respect."
9. Reference has already been made to the Constitution of the United States
and here it is appropriate to set out the relevant provisions of the
Constitution and the effect of the judgments of the Supreme Court thereon.
"Article I. Section 8. The Congress shall have PowerThe legislative power of Congress over places acquired as described in art. I, s. 8 is exclusive and the legislative authority of the State where the place is is entirely ousted except to the extent that in the purchase there may have been a reservation for the retention in force of State laws applicable at the time of the purchase. No larger reservation is possible. The consequence of this doctrine has been the eventual passing in 1948 of an Assimilative Crimes Act to produce complete conformity with current State laws. See United States v. Sharpnack (1). In the United States, therefore, State laws, such as the regulations here relied upon, could not apply in places purchased with the consent of the legislature of the State if made after the purchase. The exclusive power of Congress arising from the constitutional provisions has been regarded as self-evident. Thus in United States v. Sharpnack [1958] USSC 12; (1957) 355 US 286; 2 Law Ed 2d 282 Burton J., speaking for the majority, said:
. . . To exercise exclusive Legislation in all Caes whatsoever,
over such District (not exceeding ten Miles square) as may,
by Cession of Particular States, and the Acceptance of Congress,
become the Seat of the Government of the United States, and
to exercise like Authority over all Places purchased by the
Consent of the Legislature of the State in which the Same
shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings."
"Article IV. Section 3. The Congress shall have Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United States, or
of any particular State."
"In the absence of restriction in the cessions of the respectiveThen followed a history of the steps taken by Congress to apply the laws of the State, in which an enclave is situated, to the enclave itself. The principle adopted by Congress throughout has been conformity to local law and this culminated, so far as crimes committed in enclaves are concerned, with the Assimilative Crimes Act which made the laws of the State in which the enclave is situated, in force at the time of an act or omission, applicable to the act or omission. The validity of this law was upheld. (at p118)
enclaves to the United States, the power of Congress to exercise
legislative jurisdiction over them is clearly stated in art. I
par. 8, cl. 17, and art IV, par 3, cl. 2 of the Constitution."
10. I turn now to the opinions of commentators. The view adopted by the
majority in R. v. Bamford (1901) 1 SR (NSW) 337 , is the
view which had
already been stated by Quick and Garran in the Annotated Constitution of the
Australian Commonwealth (1901), at pp. 659-660, although it may be that Quick
subsequently changed his mind when writing Legislative
Powers of the
Commonwealth and the States of Australia (1919), at pp. 621-662. In Sir
Harrison Moore's The Constitution of the Commonwealth of Australia, 2nd ed.
(1910), at p. 289, in a passage covering laws made under s. 52, the learned
author says:
"The question of the nature of the power thus granted toThe question is posed but not answered. W. Anstey Wynes, in The Legislative, Executive and Judicial Powers in Australia, 2nd ed. (1956), at p. 163, suggests that the view of the majority in R. v. Bamford (1) that the post office at Armidale became subject to the exclusive control of the Commonwealth, and the State Parliament had no jurisdiction therein, was wrongly decided. The learned author draws a distinction between "exclusive power" and "unlimited power" and maintains that legislation under s. 52 "must be on the subject of such places as places". (at p119)
the Commonwealth Parliament is of great importance. In the
first place, does it constitute the Parliament the sole authority
competent to exercise legislative power for such places, and
remove them from the jurisdiction of the States, except so
far as the Constitution has elsewhere continued temporarily
the State authority? In the United States, exclusive
legislative power over a place imports exclusive executive and
judicial power also - 'territory so placed becomes as extraneous
to the State as if it were held by a foreign government'. Or
is it merely a power to enact such special legislation in respect
to such places as their particular circumstances may appear
to the Commonwealth Parliament to require, leaving them
otherwise under the general legislation and jurisdiction of the
State?"
11. The problem has been most exhaustively considered by Professor Zelman
Cowen in his paper "Asatias for Jack Sheppards?". The
learned author has
isolated five possible views of s. 52. He rejects out of hand the views of
Stephen J. in R. v. Bamford (1901) 1 SR (NSW) 337 and Higgins J. in The
Commonwealth v. New South
Wales [1923] HCA 34; (1923) 33 CLR 1 and finally prefers to the
view of the majority in R. v. Bamford (1901) 1 SR (NSW) 337, a view
expressed
as
follows:
". . . that s. 52 (i.) confers general power on theIt seems to me, with great respect to the learned author to whose discussion I am most indebted, that the construction which commends itself to him departs from the fundamental basis of s. 52, i.e. that it is a grant of legislative power for the Commonwealth, and the limits of that grant measure the denial of power to the Parliaments of the State. If, therefore, s. 52, in conferring power to make laws "with respect to" places, does confer a power upon the Parliament of the Commonwealth to make any law to operate in such places, it follows that, subject to s. 108, no power remains in the Parliament of the State to make any law to operate in such places. The operation of all State laws in the seat of government and in all other places referred to in s. 52 (i.) is, therefore, completely excluded. It seems to me that a law for the government of a place is a law with respect to the place even if it be a law for the government of other places as well. The citical qestion, as I see it, is whether s. 52 supports the operation of a general law in the places mentioned therein. I think it does. It follows that, save by virtue of s. 108 of the Constitution, laws of New South Wales made after the acquisition by the Commonwealth of a place in New South Wales have, of their own force, no operation in that place. This is the established doctrine in the United States of America. No question under s. 108 arises here. (at p120)
Commonwealth to legislate with respect to places acquired for public
purposes, but that the general operation of State law is not
thereby excluded. The basis of this view is that State laws
only infringe the exclusive Commonwealth powers under
s.52 (i.) if they are laws with respect to places acquired by
the Commonwealth for public purposes. A State law of
general application throughout the State including the federal
enclave is not a law with respect to places acquired by the
Commonwealth for public purposes merely because it extends
to such places. It will intrude upon the exclusive Commonwealth
power only if it is shown that the State law is directed
specifically to places acquired by the Commonwealth."
12. This review of what has been written about s. 52 brings me back, therefore, to the words of the section itself and, whether it be a convenient construction or not, I consider that the section constitutes the Parliament of the Commonwealth the sole authority competent to exercise legislative power for the government of all places described in the section. This is the first alternative stated by Sir Harrison Moore (supra, pp. 118-119). Although there is some overlapping between s. 52 and other provisions in the Constitution, it seems to me that s. 52 does both add to legislative powers of Parliament and make exclusive powers which would not otherwise be exclusive. The key to s. 52 is not to be found in s. 52 (iii.); that was no doubt added merely for logical completeness. (at p120)
13. I recognize that the view which I take would require Commonwealth legislation at least along the lines of the Assimilative Crimes Act of the United States; indeed, it probably requires more comprehensive legislation by the Commonwealth Parliament to secure that the law, in what is conveniently called the federal enclave, is, in general, the same as the law in the State in which that enclave is situated. (at p120)
14. So far as this case is concerned, the conclusion which I have stated requires, as a consequence, a decision that the regulations in question did not apply to his employer on the occasion when the plaintiff was injured. (at p120)
15. I would therefore overrule the demurrer to the fifth plea. (at p120)
WINDEYER J. This case was, by virtue of the Judiciary Act 1903-1965 (Cth), s. 40A, removed to this Court from the Supreme Court of New South Wales. The question of law which led to this was propounded by demurrers in the course of the elaborate and lengthy pleadings in the action. To ensure that the matter of law in issue would appear correctly, the parties were allowed to amend the pleadings at the outset of the case in this Court and to purge the demurrer book of matter which ought not to have been included in it. They availed themselves of the opportunity to put the pleadings in better shape. The reduction of the demurrer book to essentials caused it as amended to begin with the fourth count of the declaration; and that commences by referring to "the plaintiff as aforesaid" throwing one back, it might be supposed, to some description, in an earlier court, of him or of the right in which he sues: but it appears that that is not so and that all that is meant is the plaintiff in the action. Then there was a reference to "the second-named defendant", meaning thereby those defendants compendiously called by the firm name "Roche Bros.". However, leaving minor inelegancies aside, the material averments which emerged from the pleadings were as follows. (at p121)
16. On the part of the plaintiff it is said that he was "engaged in" certain building work which the defendants, members of a firm known as Roche Bros., were carrying out. He fell from a height and was hurt. He bases his action on several grounds including breaches of statutory duties, imposed by regulations made under a New South Wales statute, the Scaffolding and Lifts Acts, 1912- 1960, which are designed for the safety and protection of workmen working in high places. These regulations require anyone "who directly or by his servants or agents carries out any building work" to "provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet". They also require that such persons carrying out building work shall "effectively fence . . . the open sides of all floors". As the regulations lay these duties upon all those who carry out building work, the plaintiff claims to have causes of action against several defendants, two companies, and collectively the persons comprising the firm Roche Bros. He sued them all in the one action and then by separate counts in his declaration alleged that each of the three defendants was "carrying out" the building work where he was hurt, and that each was guilty of the same breach of statutory duties. He also sued each for common law negligence. (at p121)
17. There is no allegation of a relationship which would make the two companies and those who comprise Roche Bros. joint tortfeasors. These different parties were I assume joined in the one action, in which each is said to be responsible for the same damages, on the basis that the effect of s. 49 of the Common Law Procedure Act, 1899-1965 (N.S.W.) has been qualified by the Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.), s. 2, and that by the separate counts the plaintiff sues the defendants in the alternative but upon substantially the same cause of action. A single trial at nisi prius of all issues of fact raised by the pleadings against the several parties could prove troublesome: cf. Menzies v. Australian Iron & Steel Ltd. (1952) 52 SR (NSW) 62, at p 64 . But the present case relates only to the action against Roche Bros. We can proceed to determine it as if the other defendants were not parties to the action. (at p122)
18. Roche Bros. demurred to the second of the two counts alleging breaches of statutory duty on their part. The ground of their demurrer is that the count does not shew a cause of action. The contention presumably is that the particular statutory regulation relied upon does not create a private right of action. (at p122)
19. Roche Bros. also pleaded to the counts founded on the statutory duty,
saying, by one plea as to each count,
". . . that at all material times they were performing theirand, by another plea as to each count,
part of the alleged building work as subcontractors and not
otherwise";
". . . that at all material times the land upon which theTo these pleas the plaintiff demurred. These demurrers thus raise two issues of law. One is whether the regulations under the Scaffolding and Lifts Act apply to subcontractors engaged in building work. That is a question of construction of the regulations. It raises no constitutional question. The first demurrer to the pleas and the demurrer to the count of the declaration were therefore stood over pending our decision on the demurrer raising the constitutional issue. The question is whether the provisions of the regulations can apply to building work on land acquired and held by the Commonwealth as the Royal Australian Air Force Base at Richmond in New South Wales. That is the question of constitutional law that brings the case to this Court. It is the only question that at this stage has been argued. The issues of fact have not been tried. The determination of them is not essential to the determination of the present question. (at p123)
alleged building work was being carried out was the Royal
Australian Air Force Base at Richmond in the State of New
South Wales and was owned by and had been acquired by the
Commonwealth of Australia for the purpose of a Royal
Australian Air Force base prior to the coming into force in
New South Wales of the regulations under the Scaffolding and
Lifts Act, 1912, as amended, upon which the plaintiff sues".
20. As the plea demurred to stood originally it alleged not only that the building work said to have been unsafe was on Commonwealth land, but also that the plaintiff was a Commonwealth servant who when he was hurt was in the course of his duty inspecting the work. The latter averment was omitted from the amended plea. Presumably it was thought irrelevant. And I think it was; for the question of law depends upon the place where the plaintiff was hurt being a Commonwealth place; his status as a Commonwealth officer and his reason for being where he was are not directly material. (at p123)
21. There is one further preliminary matter that I should mention. The Scaffolding and Lifts Act, 1912-1960 (N.S.W.), s. 4, provides that the Act shall have effect in the metropolitan police district, and in such other areas as the Governor, by proclamation published in the Gazette, directs. By a proclamation dated 31st March 1965 the Governor directed that the Act have effect in all areas in the State. If the regulations under the Act, the relevant provisions of which are set out in the declaration, ever had any force or effect in respect of building work at the Richmond Air Force Base they were thus in force there at the time the plaintiff was hurt. The question is: Were they ever in force there? They did not become part of the law of New South Wales until after the land at Richmond was acquired by and became vested in the Commonwealth for the purpose of a Royal Australian Air Force base. That is alleged in the pleas. For the purposes of the demurrer it is therefore to be taken as a fact - as indeed it is. (at p123)
22. The case turns upon par. (i.) of s. 52 of the Constitution. It is
convenient to set it out for we heard much discussion of almost every word in
it.
"52. The Parliament shall, subject to this Constitution,The arguments have shewn that this is pregnant with problems. Before going to what I consider to be the main substance of the question, I shall state, perhaps dogmatically but I trust not didactically, what seem to me to be the meanings of some of the words and phrases that were so carefully debated. "The seat of government of the Commonwealth" means, I think, a place, a locality. The presence of this expression in s. 52 is traceable to cl. 17 of s. 8 of art. I of the Constitution of the United States of America. It was, however, an expression well known in our language from a much earlier time. I do not find it necessary to add anything to what I said about this in Spratt v. Hermes (1965) 114 CLR, at p 273 , beyond remarking that the term "seat of government", meaning a capital city, has never been taken to mean a precise area of the earth's surface delineated by metes and bounds, any more than has a seat of learning, meaning a university town, or a place described as the seat of a bishop. Of course a power to make laws with respect to a place, if it be understood as a power to make laws for the conduct of people in that place, does postulate that the place can be precisely defined. But that presents no difficulty in Australia in relation to the seat of government; because the seat of government, however it be spatially measured, must be within territory as described in s. 125 of the Constitution; and in respect of such territory Commonwealth legislative power is plenary and exclusive. (at p124)
have exclusive power to make laws for the peace, order, and
good government of the Commonwealth with respect to -
(i.) The seat of government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes."
23. So much for the seat of government. As to the related words "all places acquired by the Commonwealth for public purposes". As I understand it, "places" here means fixed localities. The proposition that motor vehicles or boats could be included is, I consider, far-fetched and quite mistaken. Whether or not a "place" must be part of the earth's surface together with any structures thereon, is an unnecessary question for the decision of the present case. If I had to answer it, I would be inclined to think that an upper storey of a building held by a strata title could be a place acquired for public purposes. But I doubt the proposition that obtaining a leasehold interest or a temporary licence to occupy a place would amount to acquisition in the relevant sense. Certainly I would not agree that the hiring of a hall for use as a polling booth on election day - as was mentioned in argument - or the use of a city park for an afternoon's military ceremonial would amount to an acquisition of a place by the Commonwealth for the purposes of s. 52. In short, as I understand s. 52, "places acquired by the Commonwealth" means places which upon acquisition the Commonwealth holds by virtue of a proprietary right. Such places are quite different from territories surrendered to and accepted by the Commonwealth under s. 111 of the Constitution or otherwise acquired, within the meaning of s. 122. The difference is the difference between political dominion and a proprietary interest. There is no doubt a theoretical difficulty in accommodating the acquisition and ownership by the Commonwealth of a parcel of land within a State with fundamental feudal concepts of landholding. When the Commonwealth acquires land within a State it becomes in a sense a tenant in fee simple. But the theoretical anomaly disappears if the fee be regarded as in reality merely a description of the nature and quantum of a proprietary interest of the Crown in the land, not a feudal estate: see The Commonwealth v. Anderson (1960) 105 CLR 303, at pp 324, 325,and The Commonwealth v. Rhind(1966) [1966] HCA 83; 119 CLR 584. (at p125)
24. The next phrase is "public purposes". The place must have been "acquired
by the Commonwealth for public purposes". These words
express a large and
general idea. They overcome a difficulty of the American prototype of s. 52.
It, cl. 17 of s. 8 of art. I of the American Constitution, speaks of "all
Places purchased by the Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts,
Magazines, Arsenals, dockYards and
other needful Buildings". Lands for forests, parks, ranges and wildlife
sanctuaries are not covered.
But that does not mean that the United States may
not acquire property for other purposes than those enumerated. However, the
acquisition
of land by the United States under the American Constitution
proceeds on a different basis from acquisitions by the Commonwealth under s.
52. As I understand it, the United States, as a national sovereignty, becomes
possessed of land by virtue of cession from a sovereign
State: see Collins v.
Yosemite Park and Curry Co. [1938] USSC 151; (1938) 304 US 518, at pp 527-530 (82 Law Ed 1503,
at pp 1508-1510) This confers
a political, as distinct from a merely
proprietary,
title. That is the result of the Constitution of the United
States being in origin the outcome of agreement by peoples who were not then
all subject to any one political tie.
The colonies had all thrown off their
allegiance to Britain. The Australian Constitution, on the other hand, gets
its juristic force not as a compact, but from a statute of the Imperial
Parliament. The Australian States,
former colonies, never were and are not, in
any true sense sovereign. The acquisition by the Commonwealth of places in
Australia
as post offices, naval and military barracks, airfields, artillery
ranges and rifle ranges, Commonwealth bank premises, meteorological
stations
or other such Commonwealth places does not mean that they cease to be in a
political sense parts of the State within the
geographical boundaries of which
they lie. They are not like territories surrendered by a State according to s.
122. Places of the sort I have mentioned have sometimes been called enclaves.
But the word begs the question. It is, in English, a late
nineteenth-century
neologism. Its ordinary meaning is, I take it, a district surrounded on all
sides by a foreign State. The word
first appears in the present context when
Higgins J. said that places acquired by the Commonwealth are not enclaves.
"The numerous lands acquired from New South Wales byTerritories surrendered to the Commonwealth by a State, and over which the Commonwealth exercises political dominion, can be properly called enclaves: places acquired and held by the Commonwealth as Commonwealth properties within a State to my mind cannot. (at p126)
the Commonwealth as property do not constitute a series of
Commonwealth enclaves, in which New South Wales writs
cannot operate or New South Wales police perform their
functions" : The Commonwealth v. New South Wales
(1923) 33 CLR, at p 59
25. To return to the words of s. 52: "all places acquired by the Commonwealth for public purposes." The power to make laws for "all" such places is, I have no doubt, a power to make laws for all such places or any such place. It is thus exercisable in respect of all Commonwealth places or any particular place or all places of a particular kind or class. (at p126)
26. The material before us does not shew how the Commonwealth acquired a title to the land forming the Richmond Air Base. For the resolution of the question we have to decide this does not matter. It must be taken that it was acquired in some way permitted by law. However, I should observe here that in the course of the argument it seemed at times to be supposed that the only ways by which the Commonwealth could acquire places are, as it was expressed, under s. 51 (xxxi.) or by s. 85. That, I think, is a misleading proposition. Doubtless many places were in the past acquired by the Commonwealth by virtue of s. 85; and the question we have to consider can arise in respect of such places. It is an ellipsis to speak of places as acquired under s. 51 (xxxi.), for it does not authorize acquisitions, only the making of laws for acquisitions. By virtue of it the Parliament has passed the Lands Acquisition Act, 1955-1966 (Cth). Section 13 of that Act is expressed to enable the acquisition of land "for public purposes". That is the phrase used in s. 52. As used in the Act, it may be that "public purposes", at all events in relation to compulsory acquisitions, are confined to purposes in respect of which the Parliament has power to make laws: W.H. Blakeley & Co. Pty. Ltd. v. The Commonwealth [1953] HCA 12; (1953) 87 CLR 501, at pp 520,521 ; Jones v. The Commonwealth [1963] HCA 43; (1963) 109 CLR 475 But s. 52 can, I think, operate in a wider field. It gives the Parliament a power to make laws with respect to all places that the Commonwealth has acquired for public purposes; and that I assume means acquired by any process known to the law for any public purpose. And public purposes are not necessarily purposes for which the Parliament can make laws. I can see no reason why the Commonwealth, or a Commonwealth statutory body on behalf of the Commonwealth, should not be able to accept a gift from a landowner by his deed or will of land for the purpose, say, of a public park, just as I suppose it could become by gift possessed of pictures or books for public use and enjoyment. (at p127)
27. During the argument it seemed to me at first that s. 52 is not itself a source of Commonwealth power to make laws for places acquired. It provides that upon the acquisition by the Commonwealth, by any lawful means, of a place for public purposes the Commonwealth Parliament has, "subject to the Constitution", "exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to" that place. I thought that a law in respect of a place must be supported by some specific head of power to be found elsewhere in the Constitution and that all that the section does is to make exclusive the exercise of that power in respect of the place, not to confer a power. However, for reasons that were pointed out in the course of the argument, I realize that that is probably too narrow a view. It would suffice in many cases because, for example, a law with respect to places acquired for post offices would be sustained by the power to make laws with respect to postal services, a law with respect to Commonwealth Bank premises by the banking power, a law with respect to quarantine stations by the quarantine power, a law with respect to military barracks by the defence power, and so on. Nevertheless, there may be places which are validly acquired by the Commonwealth for some public purpose not obviously embraced by any specific head of legislative power or the incidental power. Moreover, there is no dispute that the Richmond airfield is a place that was acquired by the Commonwealth for, and is held for, public purposes. The question is not what power with respect to it the Commonwealth has. It is what power the State has not. That is to say what is the effect of the Commonwealth law-making power in respect of it being "exclusive"? (at p128)
28. Apart from R. v. Bamford (1901) 1 SR (NSW) 337 , decided in the Supreme Court of New South Wales soon after Federation, and The Commonwealth v. New South Wales [1923] HCA 34; (1923) 33 CLR 1 , in this Court in 1923, there have, it seems, been no judicial pronouncements by superior courts on the effect of par. (i.) of s. 52. Discussions in leading textbooks and articles give useful, but varied, guidance. The main opposing views are, as I read what has been said, as follows. On the one hand, that when a place has been acquired by the Commonwealth, the exclusive power of the Parliament to make laws with respect to it means that all existing State laws are excluded, that it becomes an enclave in a strict sense, that a state of anarchy comes into existence in respect of it. On the other hand, that an exclusive law-making power does not exclude existing laws but merely prevents the State, as from the date of acquisition by the Commonwealth, making laws with respect to the place. Behind the question posed in that way, and especially material if the second view above be adopted, is a further question of the ambit of the phrase "laws with respect to" places acquired. Does it mean that the only State laws excluded are those which can be said to be with respect to the place as a place? Or does it cover all laws which regulate any conduct within that place and also any conduct which in some way affects its use for public purposes? I shall consider these matters in the order I have set then out. (at p128)
29. I reject the notion that acquisition by the Commonwealth creates a state of anarchy in or in relation to a place. Apart from the dissenting judgment of M. H. Stephen J. in R. v. Bamford (1), there has not, so far as I am aware, been any strong support for this view. American decisions, even if they supported it - which I think they do not: see Stewart & Co. v. Sadrakula [1940] USSC 20; (1940) 309 US 94 (84 Law Ed 597) - cannot be usefully invoked because of the essential distinction that I have mentioned, between a cession of political authority over a place, the idea that prevails in the United States and the acquisition of a proprietary interest in a place, the idea which prevails here and which is embodied in the Lands Acquisition Act. That does not mean that in litigation about the place the Commonwealth is not entitled to the rights and immunities of the Crown. It is (see The Commonwealth v. Rhind [1966] HCA 83; (1966) 119 CLR 584 ), but that does not bear directly on the question. The proposition that on the acquisition of a place by the Commonwealth existing laws are displaced would have remarkable consequences. This alone would make me think that it is not what the Constitution intends. That in a post office or on a rifle range murders, rapes, robberies and all manner of felonies, misdemeanours and indecencies can be committed with impunity and without interference by State police is an intolerable idea. That a person can make a contract by telephone from a post office and be free of the Statute of Frauds, or that land can be conveyed, or wills made, in any Commonwealth place, in some manners not in accordance with the law of the State where the place is, would be to me as alarming as surprising. Any number of illustrations could be added by way of emphasis. But alarm is needless. Section 108 keeps in force the law of a State "relating to any matter within the powers of the Parliament of the Commonwealth". Isaacs J. in The Commonwealth v. New South Wales (1923) 33 CLR, at p 43 , after remarking that upon acquisition by the Commonwealth the legislative power of the Commonwealth Parliament becomes exclusive, said: "That does not set up a state of anarchy, for s. 108 of the Constitution applies to prevent that." In so far as s. 52 is the source of Commonwealth power which sustains a law with respect to a place, that power only arises with respect to the particular place upon its acquisition by the Commonwealth. Until then the exclusive power to make laws with respect to that place is not by s. 52 vested in the Commonwealth; and the powers otherwise existing of the State Parliament remained until then undisturbed. Section 107 provides for that. Then s. 108 comes into operation. Unless upon acquisition by the Commonwealth a place ceases to be for all purposes "in the State" - and that I think is not so - s. 108 ensures that all law in force with respect to the place at the time of acquisition continues in force until the Commonwealth Parliament expressly alters it or validly makes some inconsistent law. (at p129)
30. The position I take is therefore not unlike that reached by the majority in R. v. Bamford (1901) 1 SR (NSW) 337 . But I do not adopt the qualification which Owen J. there expressed, namely that after acquisition of a place the Parliament of a State can still repeal or alter any law theretofore enacted by it that is in force with respect to that place. That proposition, which is founded on the last sentence of s. 108, is I think untenable because it would conflict with the exclusive legislative power of the Commonwealth. I accept as the true solution of the difficulty that the language of s. 108 creates that which was at an early date propounded by Messrs. Quick and Garran in their monumental work and later taken too by Professor Harrison Moore. It is that the latter part of s. 108 dealing with alterations and repeals of State laws by State Parliaments does not refer to powers that have become exclusively vested in the Commonwealth Parliament but only to concurrent powers: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), at p. 938; Harrison Moore, The Commonwealth of Australia, 2nd ed. (1910), at pp. 411, 412. (at p130)
31. The conduct by the Commonwealth of an air force base is unquestionably a public purpose. Land acquired for that purpose is a place acquired for public purposes within the meaning of s. 52. It follows that, in the view I take, only the Commonwealth Parliament had power to make laws with respect to the Richmond Air Base as from the time of its acquisition. The regulations on which the plaintiff relies, made under the authority of a New South Wales statute, were made after the place was acquired. Therefore, if they are laws made with respect to the place, within the meaning of s. 52, they have no force or effect there. The critical question thus becomes whether or not the regulations which are expressed to take effect throughout the State can, in relation to the Air Base, be properly called laws with respect to that place. That was said to depend upon their proper characterization and categorization. These terms, uncouth for grammarians and those who care for English undefiled, are accepted and useful in the jargon of Australian constitutional law. They mean, as I understand them, describing a statute by its subject matter or topic and classifying it accordingly by reference to heads of power as stated in the Constitution. (at p130)
32. Broadly speaking, two views of s. 52 seem possible. One is that a law of a State Parliament that according to its construction is passed with intent that it is to operate throughout all parts of the State is invalid so far as it purports to operate in, or in relation to, Commonwealth places there. This supposes that a general Act of a State Parliament which, in terms and intention, extends to Commonwealth places must be taken to have been made with respect to such places among other places; and that it is thus to that extent an unlawful invasion by the State of a field within the exclusive power of the Commonwealth Parliament. (at p130)
33. The other view is that the only laws which can properly be described as having been made with respect to a Commonwealth place, or Commonwealth places, are laws made specifically for that place or those places. On that view any State law enacted expressly with respect to, say, existing post offices or rifle ranges within the State, would obviously be invalid : but a State law made in general terms, and thereby covering Commonwealth places along with all other places in the State, would not. This view has been put forward by commentators, notably by Dr. Anstey Wynes and Professor Zelman Cowen in works cited to us. A law with respect to a place or places acquired by the Commonwealth must, on that view, be expressly on the subject of the place or places, "as places" or "as such", so the argument ran. This, it was urged, accorded with dicta in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 . But that case turned on very different considerations from this: and I am not persuaded that words used incidentally there can be invoked for the decision of this case. The construction of s. 52 proposed - namely that it excludes from the law-making power of the States only enactments specifically directed to Commonwealth places - would, if it be a tenable construction, have advantages and avoid some manifest inconveniences. It would prevent the oddities which would occur from a lack of uniformity in the operation of State laws in relation to Commonwealth places within a State resulting from different dates of their acquisition and varying provisions of the State statute book at those dates. Nevertheless, I find it hard to accommodate this view with the words of s. 52. And some arguments that we heard added to my difficulties. I cannot assent to the idea that a law with respect to the conduct of persons within a place, or transactions there, is not a law with respect to that place. I think too that some laws with respect to conduct outside a place, but done so as to affect that place or activities there, could be properly called laws with respect to the place. Moreover, I doubt whether a State Parliament can enter a legislative area from which it is excluded by the Constitution simply by casting its laws in general terms which embrace that area along with others. (at p131)
34. In the present case the law in question is a general law governing building work in New South Wales. I find it hard to say that it is not upon its proper construction enacted as a law to govern all such work anywhere in the State. I have come to the conclusion that it is. Therefore, having been made after the Richmond land was acquired, it has in my view no operation there. As I have said, this view of the effect of s. 52 produces serious complications. These are, I think, the result of transplanting language of the American Constitution into the different climate of Australia. However, the inconveniences and complications that arise upon this view are less serious than would be those that would come from any other of the suggested constructions of s. 52. They are less serious because they are easily remediable by the Commonwealth Parliament. It does not have to enact a complete code of laws, criminal and civil, for all Commonwealth places as a substitute for anarchy there. For there is no anarchy, merely divergences in the law applicable in different places within a State which were acquired by the Commonwealth at different times. That lack of uniformity in the operation of State law could be overcome by a short Commonwealth Act while at the same time ensuring that Commonwealth places remain within Commonwealth control. As I see it, all that is necessary to resolve all the difficulties is a Commonwealth statute providing that the laws of each State, from time to time in force, should have full force and effect in all places already acquired, or acquired in the future, by the Commonwealth, which are within the geographical limits of that State, save in so far as any such State law is inconsistent with any Commonwealth law or is incompatible with the conduct by the Commonwealth of its lawful purposes carried on in any such place. (at p132)
35. I would overrule the plaintiff's demurrer to the fifth plea of the defendants Roche Bros. That plea should, I consider, be held to be good in substance. (at p132)
36. The other demurrers are at present standing over for further consideration. I would add, for my part, that I am disposed to think that the question of law raised by the demurrer to the said defendants' fourth plea could best be decided after relevant facts have been determined by a trial of the issues of fact. (at p132)
OWEN J. The plaintiff brought an action in the Supreme Court claiming damages for personal injuries said to have been sustained whilst employed on certain building work. In one of the counts of his declaration he alleged that the defendants Roche Bros. had committed a breach of a regulation (reg. 73) made under the Scaffolding and Lifts Act, 1912-1960 (N.S.W.), and had thereby caused his injuries. To this the defendants by one of their pleas alleged that at the relevant time the plaintiff was working at the R.A.A.F. Air Base at Richmond. The plaintiff demurred to the plea and the question thus raised was whether, having regard to the terms of s. 52 (i.) of the Commonwealth Constitution, the regulation upon which the plaintiff relied was a valid State law, the Air Base being a "place acquired by the Commonwealth for public purposes". The demurrer came before the Court of Appeal and since an inter se question had thus arisen the cause was removed into this Court under s. 40A of the Judiciary Act 1903-1965 (Cth). When the demurrer came on to be heard by us, leave was given to the parties to amend the pleadings and in the result there are now two counts, the fourth and fifth, each of which is based upon reg. 73, a provision which is designed to protect persons engaged in building operations against risk of injury. To the fifth count the defendants demurred and argument on that was deferred to some future date. To both these counts the defendants also pleaded. By their fourth plea they alleged that whatever building operations they were carrying out were being carried out by them as subcontractors. To this plea the plaintiff demurred and this raises the question whether on the true construction of reg. 73 it applies to a person who is carrying out building operations as a subcontractor. Argument on this point was also deferred. By their fifth plea the defendants alleged that the building work in the course of which the plaintiff was injured was being carried out on land owned by the Commonwealth and acquired by it for the purposes of an Air Force base prior to the coming into force of reg. 73. To this the plaintiff demurred and it is on the issue of law thus raised that we heard argument not only from the parties but also from counsel representing the Commonwealth and the States, other than Tasmania, which were granted leave to intervene. (at p133)
2. In considering the question thus raised we are not concerned in the present case with the problems which the Supreme Court of New South Wales was called upon to consider in R. v. Bamford (1901) 1 SR (NSW) 337 That case related to land which had vested in the Commonwealth under s. 85 of the Constitution and to the operation in those circumstances of s. 108. (at p133)
3. Section 52 (i.) of the Commonwealth Constitution provides that:
"The Parliament shall, subject to this Constitution, haveIf reg. 73 or the Act under which it was made can properly be described as a law with respect to places acquired by the Commonwealth for public purposes, it is not a law which could be validly enacted by the New South Wales legislature since the power to legislate conferred upon the Commonwealth Parliament by s. 52 (i.) is expressed to be an exclusive power. But the Commonwealth power under that section is, I think, limited to a power to make laws specifically directed to and concerned with such places and it is to that extent only that the legislative powers of the State are excluded by the section. This view of the extent of the Commonwealth's exclusive power to legislate under s. 52 (i.) was expressed by Kitto J. in Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 in a passage in his judgment with which I agree. His Honour said (1965) 114 CLR, at p 258:
exclusive power to make laws for the peace, order, and good
government of the Commonwealth with respect to -
(i.) The seat of government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes."
"By s. 52 (i.) the Parliament is given exclusive power toIf then the question is asked whether the Scaffolding and Lifts Act, 1912-1960 (N.S.W.) and reg. 73 are laws on the specific subject of places acquired by the Commonwealth for public purposes, I think the answer is that they are not. They lay down rules directed to securing the safety of persons employed in building operations in New South Wales. It is true that they operate throughout New South Wales but, in my opinion, it cannot be said that they trespass upon the legislative power which s. 52 (i.) confers upon the Commonwealth Parliament merely because they do so operate and there happen to be within the area to which they apply places which have become the property of the Commonwealth because they have been acquired by it for public purposes. They do not, in my opinion, fall within the description of laws on "the specific and separate topic", to adopt the phrase used by Kitto J., of places acquired by the Commonwealth for public purposes. I am of opinion, therefore, that the demurrer to the fifth plea should be upheld. (at p134)
legislate for the peace, order, and good government of the
Commonwealth with respect to the seat of government of the
Commonwealth, and all places acquired by the Commonwealth
for public purposes. The power under the first limb of s. 52 (i.)
extends only, I think, to the making of laws on the subject
of the seat of government as a specific and separate topic of
legislation to be distinguished from more general topics which
may affect a place in which the seat of government is or is to
be - just as the second limb extends only, I should suppose, to
laws on the specific subject of places fulfilling the given
description. It is the seat of government as such, and places
acquired, etc., as such, which I understand to be referred to
in s. 52 (i.)."
WALSH J. The amended declaration filed on behalf of the plaintiff in an
action against several defendants for damages for personal
injury includes two
counts against a defendant described as "Roche Bros." (herein called the
defendant). These are the fourth and
fifth counts of the amended declaration.
The fourth count alleges a breach of a statutory duty imposed by par. (3) of
reg. 73 made
under the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended.
The fifth count alleges a breach of a statutory duty imposed by par.
(8) of
the same regulation. The material parts of that regulation as set out in the
declaration are in the following terms:
"73. Any person who directly or by his servants or agentsTo both those counts a plea (the fifth plea) has been made which asserts that the land on which the building work was being carried out was the Royal Australian Air Force Base at Richmond in the State of New South Wales and was owned and had been acquired by the Commonwealth of Australia for the purpose of a Royal Australian Air Force base prior to the coming into force of the relevant regulations. The question raised by a demurrer to the fifth plea is whether or not s. 52 (i.) of the Commonwealth Constitution operates to prevent the regulations from having any operation in relation to the carrying out of building work in that place. There were other demurrers but argument on them has been adjourned and this judgment is concerned only with the question which I have just stated. (at p135)
carries out any building work shall take all measures that
appear necessary or advisable to minimise accident risk and to
prevent injury to the health of persons engaged in such building
work and for this purpose, without limiting the generality of
the foregoing, he shall -
. . . . . . . . . . . . . . .
(3) provide means by fencing or otherwise for securing the
safety of any person working at a place from which he
would be liable to fall a distance of more than six feet.
. . . . . . . . . . . . . . .
(8) effectively fence in the manner prescribed by these
Regulations . . . the open sides of all floors. . . ."
2. In the judgments of other members of the Court, which I have had the advantage of reading, reference has been made to judicial statements and to opinions expressed by commentators concerning the meaning and operation of s. 52 (i.). They are conflicting. They require careful consideration but do not provide a decisive solution of the difficult problem with which they deal. (at p135)
3. In considering the question before the Court it is desirable to mention first two questions concerning the language of s. 52 (i.) which were discussed in the argument of counsel but which I think may be put aside so far as the present case is concerned. It is not necessary to consider how wide is the meaning of the word "places", since there is in my opinion no doubt that the Air Force Base to which the plea refers is a "place" within that meaning. I think it is clear also that the statements made in the plea, which for present purposes are to be taken to be true, are sufficient to establish that the land was "acquired by the Commonwealth for public purposes" and it is not necessary to consider questions which might arise in other circumstances as to the meaning of those words. (at p136)
4. The question was raised whether the use of the word "all" before the word "places" has the effect that the power to which s. 52 (i.) refers cannot be exercised by making a law which is with respect to some or one only and not to all of the places described in the provision. I feel no doubt that it may be so exercised. (at p136)
5. Having mentioned those preliminary matters, I turn to the real problem raised by the demurrer. It is convenient as a first step in examining it to consider, so far as is necessary for the purpose of this case, the scope of the power conferred upon the Commonwealth Parliament to legislate with respect to places acquired by the Commonwealth for public purposes, that is, to consider whether or not it would support a law applicable in those places regulating in the same manner the same activities as those which are the subject of the State law, that is, reg. 73 read with the Act under which it was passed. (at p136)
6. For the purpose of this examination I assume that the Commonwealth Parliament has passed a law, expressed to be applicable in all such places or in some of them, which enacts that whenever building work is being carried out the persons carrying it out shall observe certain specified rules. These rules are expressed in the same terms as those contained in the regulation. It is assumed also that the question whether or not the law is within power is considered without regard to any source of power to enact it other than s. 52 (i.). In my opinion, such a law would be a law for the peace, order, and good government of the Commonwealth "with respect to" the places in which it is expressed to apply. (at p136)
7. Since the words "with respect to" are used both in s. 51 and s. 52 in conferring power to make laws, it seems right to attribute to these words the same meaning in s. 52 (i.) as in s. 51, so far as it is possible to do this having regard to the differences in the character of the subject matters of power with which the provisions respectively deal. If so, it is necessary that a law made under the power conferred by the second part of s. 52 (i.) should have such a direct and substantial connexion with the places therein described that it can be said to be a law made with respect to them. In my opinion, a law which regulates the manner in which building work in such places is to be carried out has such a connexion with them. Its connexion with the places is not "insubstantial, tenuous or distant": Melbourne Corporation v. The Commonwealth(1947) [1947] HCA 26; 74 CLR 31, at p 79 (at p137)
8. I think that the opinions, mentioned by Professor Zelman Cowen in the paper "Alsatias for Jack Sheppards?" in Sir John Latham and Other Papers, p. 188, which treat s. 52 (i.) as limited to the grant of an authority to legislate with respect to such places "as places" or with respect to them as ager publicus put a restriction upon it which is not warranted. The required relationship between the law and the place may be found to exist notwithstanding that it deals with the regulation of some conduct or activity in those places. (at p137)
9. In my opinion, it would not be right to deny the validity of the law which I have assumed to have been enacted by the Commonwealth Parliament on the ground that it should be characterized as one which had as its subject matter not the places but the safety of workers or the conduct of building operations. Even if it might be described as a law with respect to the safety of workers or with respect to the conduct of building operations it could also be properly described, in my opinion, as a law with respect to the places and would, therefore, be within the power conferred : cf. P. J. Magennis Pty. Ltd. v. The Commonwealth [1949] HCA 66; (1949) 80 CLR 382, at pp 402, 403 ; and Herald and Weekly Times Ltd. v. The Commonwealth [1966] HCA 78; (1966) 115 CLR 418, at p 434 (at p137)
10. I am not able to accept the view that in order that the law may be so described it is essential that it may be seen from the terms of the law that it has been enacted with the object of meeting some particular need or dealing with some particular problem arising out of the nature of the purpose for which a place has been acquired or for which it is being used. This view is not supported in my opinion by the language of the section or by reasons derived from a consideration of its relationship to other provisions of the Constitution. Nor am I able to accept the still more restricted view submitted by learned counsel for the plaintiff that, in order to come within the power conferred by s. 52 (i.), a law must be a law to control or regulate the "characteristics" of the place and must be related to its physical condition and characteristics. All that the provision requires is that the law should be with respect to the place and this means that it should have a direct and substantial connexion with the place. The views to which I have just referred would set up a different requirement, namely, that the law should be with respect to the fulfilment of a particular purpose for which the place is acquired or used or should be with respect to its physical condition and characteristics. (at p138)
11. The work of constructing, erecting, adding to, altering, repairing, equipping, furnishing, painting, cleaning or demolishing buildings or structures, which constitutes building work (see Scaffolding and Lifts Act, 1912 (N.S.W.), s. 3) seems to me to be directly and closely connected with the places in which it is carried out. I think that a law which regulated conditions to be observed by persons carrying out such work in places acquired by the Commonwealth for public purposes would properly be described as a law with respect to those places. (at p138)
12. In my opinion, it is not necessary to decide in this case what is the full scope of the power conferred. It is not necessary to decide, for example, whether or not laws relating to the form in which contracts or wills should be made in such places and dealing with the validity and the operation of such instruments would be laws with respect to those places within the meaning of s. 52(i.). The inquiry may be limited to legislation of the same kind as that with which this case is concerned. (at p138)
13. So far it has been supposed that a law of that kind has been enacted to operate only in such places. Now let it be supposed that the Act enacting the law is expressed to apply also throughout all or some of the Territories in respect of which the Commonwealth Parliament has legislative power derived from other sources, as well as in such places. As will appear later I am of opinion that such a place does not cease upon acquisition to be part of the territory of the State in which it is situated. The law which is now assumed to be enacted is a law which is not limited to the selection of such places alone, for the exercise of a power which is independent of territorial dominion, but is a law which lays down rules to be observed in such places and in Territories over which the Parliament has legislative power. In my opinion, the validity of the supposed law in its application to the places acquired for Commonwealth purposes would not be affected by the circumstance that it is not limited to those places. Its validity would depend upon the question whether or not it should be described as being, in so far as it was made to apply in those places, a law with respect to them. If that description would be correct in relation to a particular law if enacted separately and solely for such places, I think that there would be no sufficient reason for denying the correctness of the description in relation to the application in such places of the same law if enacted as a more general one. I do not find in s. 52 (i.) a requirement that the places to which it refers must necessarily be made the subject of a separate exercise of legislative power confined to them or to some of them. (at p139)
14. So far I have considered and have stated opinions upon the question of the positive power conferred upon the Commonwealth Parliament to enact legislation of the kind with which this case is concerned. I must deal now with the negative aspect of the problem. Bearing in mind that the power so conferred is an exclusive power, I must consider what is the effect in this case of the denial of State power which is the result of the exclusiveness of the Commonwealth power. If the conclusions which I have already stated be correct it seems to me to follow that if a State enacted (directly by Act of its Parliament or indirectly by subordinate legislation) a law which laid down the same rules and imposed the same duties as the supposed Commonwealth law which I have considered and was expressed to apply only in places (being within the boundaries of the State enacting the law) acquired by the Commonwealth for public purposes, this law would be invalid. Such a law would be a law with respect to those places. Consistently with what I have written above it would be a law with respect to those places not for the reason or not solely for the reason that it was made applicable only in those places, but because it would be a law which by reason of its regulation of the carrying out of building operations in those places would have such a direct and substantial connexion with them as to warrant its being described as a law with respect to them. (at p139)
15. The relevant law which has been made by the State of New South Wales is not restricted to such places but applies throughout the State. Thus the question is raised whether or not that is a reason for regarding it as not being a law with respect to those places. According to the opinions I have earlier stated the Commonwealth Parliament has power to make a law regulating the conduct of building operations in those places. It appears to me to be a necessary consequence that the making by the State of such a law to apply in those places is an attempted intrusion upon the power of the Commonwealth Parliament. If that power had not been made an exclusive power the State could, of course, make such a law which would be and would remain effective, subject to s. 109. But as it is an exclusive power the attempted intrusion upon it has no validity. (at p139)
16. Subject to any relevant limitation imposed by the Commonwealth Constitution and subject to the territorial limitations upon its legislative power, a State has a general power to make laws. If places acquired by the Commonwealth for public purposes were to be regarded as ceasing upon acquisition to be part of the territory of the State, then for that reason the State would lack power to make laws applying to them. But after consideration of the divergent views which have been expressed upon that question, I am of opinion that a place so acquired continues to be part of the territory of the State in which it is situated and is not excised from the State so as no longer to be for any purpose a part of it. The question of the State's legislative power with respect to any such place after its acquisition must therefore be determined by reference to the extent of the legislative power given by the Constitution to the Commonwealth Parliament with respect to it. Whether or not s. 52 (i.) confers an unlimited power to make laws concerning any act, transaction, activity or conduct within or connected with such a place it does confer in my opinion power to make a law regulating the manner in which building work shall be carried out therein. As I have said, it is in my opinion that such a law must be regarded as a law with respect to that place. This carries with it a denial of power in the State to make such a law. A law which applies to and governs the carrying out of building work in such a place is in my opinion a law with respect to the place whether the enactment is limited so as to apply only in such places or has a general application to all places within the territorial boundaries of the State. Unless this be so, the granting of exclusive power to the Commonwealth Parliament appears to be deprived of any real significance. As I have said, a place acquired by the Commonwealth remains, in my opinion, part of the State in which it is situated. If the opinion just stated be not correct the State can make, after the acquisition of such a place, a new law of any kind whatsoever having an operation in that place and the only limitation imposed upon it by the existence of the exclusive power of the Commonwealth is that the State Parliament must not single out for separate attention the places, within its boundaries, to which that exclusive power relates. I do not think it is right to conclude that all that is achieved by the provision granting the exclusive power is a prohibition against the enactment by a State of special legislation dealing with the Commonwealth places which it is unwilling to apply generally to its territory. I think that the provision granting exclusive power has a wider meaning and effect than that, and is not so limited that it effects no exclusion of State power, unless the State enacts separate legislation to deal with those places. (at p140)
17. I conclude, therefore, that the State law which is in question in this case is of no effect within the area occupied by the Air Force Base. I recognize the practical merits of the view of the operation of s. 52 (i.) favoured by Professor Zelman Cowen in the paper cited above. This view is that although s. 52 (i.) confers a general power upon the Commonwealth to legislate with respect to places acquired by the Commonwealth for public purposes, nevertheless, a State law will intrude upon the exclusive Commonwealth power only if it appears that the State law is directed specifically to places acquired by the Commonwealth. But I find that view unacceptable, since it appears to me that it fails to equate the area of the exclusive power of the Commonwealth Parliament with the area of power which is denied to the States. I think that it is a necessary consequence of the exclusiveness of the Commonwealth power that those areas should be equated. (at p141)
18. My conclusions have been reached after careful consideration of the dicta in Spratt v. Hermes (1965) 114 CLR, at p 258 and at pp 262, 263 which would support a different view. But with respect I am unable, for reasons which I think have been sufficiently indicated, to adopt those statements and apply them so as to resolve the problem raised by this case. My conclusions may be summarized by stating that the law in question is one which could be validly enacted by the Commonwealth Parliament to govern the carrying out of building work in all or some places acquired by the Commonwealth for public purposes ; the consequence is that the power of the State of New South Wales to make a law which governs the carrying out of building work in some of those places, that is in those of them which are within that State, must be denied because the power of the Commonwealth Parliament is an exclusive power ; such a law is a law with respect to those places, notwithstanding that it operates generally throughout the State, because in its relevant application it has a direct and substantial connexion with them. (at p141)
19. This case does not require a decision upon the question of the operation in a place which has been acquired by the Commonwealth for public purposes of a State law made before it was acquired and I refrain from stating any opinion upon that question. (at p141)
20. The demurrer to the fifth plea should be overruled. (at p141)
ORDER
The plaintiff's demurrer to the second-named defendants' fifth plea being a plea to the fourth and fifth counts of the plaintiff's declaration is overruled.Plaintiff to pay the second-named defendants' costs of the demurrer.
The interveners to pay to the plaintiff -
(1) four-fifths of so much of the costs paid by the
plaintiff to the defendants as represent the costs
of the argument of the demurrer on 29th, 30th
and 31st October 1969, and
(2) four-fifths of the plaintiff's costs of the argument
on those days.
The action otherwise adjourned with liberty to apply in chambers with respect to further proceedings therein.
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