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High Court of Australia |
DAVIS and OTHERS v. THE COMMONWEALTH of AUSTRALIA and ANOTHER
[1988] HCA 63; (1988) 166 CLR 79 F.C. 88/059
Constitutional Law (Cth)
High Court of Australia
Mason C.J.(1), Wilson(2), Brennan(3), Deane(1), Dawson(2), Toohey(4) and
Gaudron(1) JJ.
CATCHWORDS
Constitutional Law (Cth) - Powers of Commonwealth Executive -
HEARING
1988, May 3, 4; December 6. 6:12:1988DECISION
MASON C.J., DEANE AND GAUDRON JJ. The defendants' demurrer to the plaintiffs' amended statement of claim raises for determination questions as to the validity of the Australian Bicentennial Authority Act 1980 (Cth) ("the Act"). The Act is a law relating to the Australian Bicentennial Authority ("the Authority") which is a company limited by guarantee, registered under that name under the Companies Ordinance 1962 (A.C.T.). The plaintiffs' challenge to the validity of the Act centres on ss.22 and 23 of the Act. The plaintiffs do not seek a declaration of invalidity of the other provisions of the Act unless they succeed in their attack on the validity of ss.22 and 23.
2. The Act itself does not state the object and functions of the Authority.
However, cl.3 of the memorandum of association of the
Authority,
which is set
out in par.20 of the amended statement of claim, provides:
"The primary object for which the Authority isIt is unnecessary to set out the succeeding paragraphs of cl.3 because the plaintiffs' case is that the commemoration of the Bicentenary, rather than the associated objects as such, is beyond the powers of the Commonwealth.
established is to formulate, to plan, to develop,
to promote, to co-ordinate and to implement,
consistently with applicable legislation of the
Parliament of the Commonwealth, a national
programme of celebrations and activities ('the
programme') to commemorate the bicentenary in 1988
of the first European settlement in Australia and
to that end, but without limiting the generality
thereof, the Authority shall have the following
associated objects
(1) to make arrangements, in relation to and for
the purposes of the carrying out of its
primary object, with any of the following
Governments - the Government of the
Commonwealth, a State or Territory of
Australia;
..."
3. Section 6 of the Act requires the Authority to promote its objects and
exercise its powers in accordance with such directions,
if any, with respect
to
the policies to be followed by it as may be given to its Board of Directors
by the Minister in writing.
Section 10 provides:
"(1) There are payable to the Authority such moneys
as are appropriated by the Parliament for the
purposes of the Authority.
(2) The Minister for Finance may give directions
as to the amounts in which, and the times at which,
moneys referred to in sub-section (1) are to be
paid to the Authority."
4. The plaintiffs allege in pars 27 and 28 in the amended statement of claim that the Parliament of the Commonwealth has applied, inter alia, the sum of $17,952,000 for the purposes of the Authority and that pursuant to s.10(2), the Minister for Finance has effected payment of that sum to the Authority.
5. Section 11 provides for the preparation of estimates and states that moneys of the Authority shall not be expended otherwise than in accordance with estimates approved by the Minister. Sections 12 to 14 limit the purposes for which and the manner in which moneys of the Authority may be applied, invested or borrowed. Section 15 enables the Authority to appoint officers and employees. The Authority is deemed to be an intergovernmental body to which the Public Accounts Committee Act 1951 (Cth) applies, a Commonwealth authority for the purposes of Pt IV of the Public Service Act 1922 (Cth) and an approved authority for the purposes of the Superannuation Act 1976 (Cth) (ss.16, 17 and 18).
6. Section 22 provides:
"(1) Subject to sub-section (4), a person who,
without the consent in writing of the Authority
(a) uses the name, or an abbreviation of the
name, of the Authority, a prescribed
symbol or a prescribed expression in
connection with a business, trade,
profession or occupation;
(b) sells, offers for sale, exposes for sale,
hires or lets for hire or otherwise has
in his possession for sale or hire, goods
to which the name, or an abbreviation of
the name, of the Authority, a prescribed
symbol or a prescribed expression has
been applied;
(c) uses the name, or an abbreviation of the
name, of the Authority, a prescribed
symbol or a prescribed expression in
relation to goods or to the promotion, by
any means, of the supply or use of goods;
or
(d) imports into Australia for sale, or for
use for the purposes of any trade or
business, any article to which the name,
or an abbreviation of the name, of the
Authority, a prescribed symbol or a
prescribed expression has been applied,
outside Australia, without the consent in
writing of the Authority,
is guilty of an offence against this section.
...
(3) A person who is guilty of an offence against
this section is punishable, upon conviction
(a) in the case of a person not being a body
corporate - by a fine not exceeding
$2,000; or
(b) in the case of a person being a body
corporate - by a fine not exceeding
$4,000.
(4) A person shall not be convicted of an offence
against this section in respect of the use of an
abbreviation of the name of the Authority if the
use occurred in such circumstances, or in relation
to such matters, as to be unlikely to be taken to
imply any connection with the Authority, unless the
prosecution proves that the use was intended to
imply such a connection.
(5) The conviction of a person for an offence
against this section in respect of the use of a
name, abbreviation of a name, prescribed symbol or
prescribed expression does not prevent a further
conviction of that person in respect of the use of
that name, abbreviation, prescribed symbol or
prescribed expression at any time after the
first-mentioned conviction.
(6) For the purposes of this section
...
(b) a reference to an official symbol of the
Authority shall be read as a reference
to
(i) a symbol the design of which is set out
in the Schedule; or
(ii) a symbol declared by the regulations to
be an official symbol of the Authority;
(c) a reference to a prescribed symbol shall
be read as a reference to an emblem,
brand, design, symbol, logo or mark
that
(i) is identical with an official symbol of
the Authority; or
(ii) so nearly resembles an official symbol
of the Authority as to be capable of
being mistaken for an official symbol
of the Authority;
(d) a reference to a prescribed expression
shall be read as a reference to
(i) any of the following expressions,
namely, 'Bicentenary', 'Bicentennial',
'200 years', 'Australia', 'Sydney',
'Melbourne', 'Founding', 'First
Settlement', 'Exposition', 'Expo',
'World Fair', or 'World's Fair'; or
(ii) any other word or words, figure or
figures, or combination of a word or
words and a figure or figures, that is
is prescribed by the regulations for the
purposes of this paragraph,
when used in conjunction with '1788',
'1988' or '88' or with any 2 or more of
those groups of figures;
...
(7) Proceedings under this section shall not be
instituted without the consent in writing of the
Attorney-General.
(8) Nothing in this section affects any rights
conferred by law on a person in respect of
(a) a trade mark registered under the Trade
Marks Act 1955, being a trade mark that
was so registered before the date fixed
under sub-section 2(1) of this Act; or
(b) a design registered under the Designs Act
1906, being a design that was so
registered before the date fixed under
sub-section 2(1) of this Act.
..."
7. In the Schedule to the Act there appear two official symbols of the Authority, designated as the first and second symbols. The first symbol is surrounded by the words "AUSTRALIAN BICENTENARY". The second symbol does not include any words. The regulations made under the Act designate three further symbols as official symbols of the Authority (reg.3). The regulations also prescribe for the purposes of s.22(6)(d) of the Act the following words, namely, "Australian Bicentenary", "The Australian Achievement", "Australia 200", "Sail", "Sail Australia", "Opsail", "Operation Sail", "Tall Ships" and "Tall Ships Australia".
8. Section 23 provides:
"All articles or goods by means of which, or
in relation to which, an offence against
sub-section 22(1) is committed shall be forfeited
to the Commonwealth."
9. The amended statement of claim alleges a number of matters which are designed to establish a sufficient interest on the part of the plaintiffs to challenge the various provisions of the Act. The plaintiffs allege that they are members and descendants of the Aboriginal people, that they are citizens of the Commonwealth of Australia and that each plaintiff is an individual taxpayer. In addition, it is alleged that the first plaintiff owns and operates a printing and design business trading under the names of "Abart" and "Lou Davis Graphics", that he designs and prints for sale in connection with that business articles of clothing bearing the name of the Authority and certain symbols and expressions prescribed under s.22. The first plaintiff requested the Authority to consent in writing to his use of certain words, symbols and expressions for the production of such items for sale but the Authority declined to give its consent. The precise nature of the request for consent made by the plaintiff is of some importance, but it will be convenient to deal with the nature of the request at a later stage. The plaintiffs go on to allege that the first plaintiff intends selling (by wholesale and retail), offering for sale and possessing for intended sale, articles of clothing to which the name of the Authority and/or a prescribed symbol or a prescribed expression has been applied. The plaintiffs allege also that the first plaintiff intends to wholesale to, inter alia, the second and third plaintiffs the articles of clothing so described and that the second and third plaintiffs each intend to distribute and retail those articles of clothing.
10. The plaintiffs then assert that the provisions of the Act, notably ss.22 and 23, and the appropriation of money by the first defendant for the purposes of the second defendant and generally for the purposes of the celebration of the Bicentenary are ultra vires. The plaintiffs then claim a declaration that ss.6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23 and 25 of the Act are beyond the legislative power of the Commonwealth of Australia, are void and of no effect and a declaration that the appropriation of money for the purposes of the Authority or the celebration by the Commonwealth of the Bicentenary is ultra vires, not being authorized by s.83 of the Constitution.
11. The defendants demur to the amended statement of claim on the grounds that the Act is valid, that the facts alleged do not show any cause of action to which effect can be given by the Court and that the plaintiffs lack a sufficient interest to challenge the validity of the Act, notably s.10 and the appropriation which it purports to effect. However, the defendants now concede that the plaintiffs have a sufficient interest to contest the validity of ss.22 and 23. It is therefore necessary to examine the validity of at least those sections. Before doing so, it is convenient to refer to the Commonwealth's executive and legislative powers so far as they relate to the commemoration of the Bicentenary because the ultimate object of ss.22 and 23 is to protect and enhance that commemoration.
12. The Commonwealth submits that its executive power under s.61 of the Constitution extends to the incorporation of a company in the Australian Capital Territory having as its object the commemoration of the Bicentenary throughout Australia. The next step in the argument is that the Parliament's incidental or inherent legislative powers with respect to the execution of the executive power will sustain a statute which complements that exercise of executive power, in particular by appropriating money to the company from Consolidated Revenue and by containing provisions in the form of ss.22 and 23.
13. The scope of the executive power of the Commonwealth has often been
discussed but never defined. By s.61 of the Constitution it extends to the
execution and maintenance of the Constitution. As Mason J. observed in Barton
v. The Commonwealth [1974] HCA 20; (1975) 131 CLR 477, at p 498, the power:
"extends to the execution and maintenance of theThese responsibilities derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity: Victoria v. The Commonwealth and Hayden ("the Australian Assistance Plan Case") [1975] HCA 52; (1975) 134 CLR 338, at pp 396-397. So it is that the legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and include such powers as may be deduced from the establishment and nature of the Commonwealth as a polity: see the discussion by Dixon J. in Australian Communist Party v. The Commonwealth ("the Communist Party Case") [1951] HCA 5; (1951) 83 CLR 1, at pp 187-188. Dixon J. expressed a like view of Parliament's power of appropriation when he said in Attorney-General (Vict.) v. The Commonwealth ("the Pharmaceutical Benefits Case") (1945) 71 CLR 237, at pp 271-272:
Constitution and of the laws of the Commonwealth.
It enables the Crown to undertake all executive
action which is appropriate to the position of the
Commonwealth under the Constitution and to the
spheres of responsibility vested in it by the
Constitution."
"In deciding what appropriation laws may validly be
enacted it would be necessary to remember what
position a national government occupies and ... to
take no narrow view, but the basal consideration
would be found in the distribution of powers and
functions between the Commonwealth and the States."
14. The Constitution distributes the plenitude of executive and legislative powers between the Commonwealth and the States: see Colonial Sugar Refining Co. Ltd v. Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182, at pp 214-215, per Isaacs J.; Smith v. Oldham [1912] HCA 61; (1912) 15 CLR 355, at p 365, per Isaacs J. On this footing, as Isaacs J. pointed out in The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd ("the Wooltops Case") [1922] HCA 62; (1922) 31 CLR 421, at pp 437-439, s.61 confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself. Thus the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence.
15. If we ask the question whether the commemoration of the Bicentenary is a matter falling within the peculiar province of the Commonwealth in its capacity as the national and federal government, the answer must be in the affirmative. That is not to say that the States have no interest or no part to play in the commemoration. Clearly they have such an interest and such a part to play, whether as part of an exercise in co-operative federalism or otherwise. But the interest of the States in the commemoration of the Bicentenary is of a more limited character. It cannot be allowed to obscure the plain fact that the commemoration of the Bicentenary is pre-eminently the business and the concern of the Commonwealth as the national government and as such falls fairly and squarely within the federal executive power.
16. Implicit in what we have just said is a rejection of any notion that the character and status of the Commonwealth as the government of the nation is relevant only in the ascertainment of the scope of the executive power in the area of Australia's external relations. In the legislative sphere the nature and status of the Commonwealth as a polity has sustained legislation against subversive or seditious conduct: Burns v. Ransley [1949] HCA 45; (1949) 79 CLR 101, at p 116; R. v. Sharkey [1949] HCA 46; (1949) 79 CLR 121, at pp 148-149; see the Communist Party Case, at pp 187-188. And there was no suggestion in the judgments in the Australian Assistance Plan Case (at pp 362, 375, 397 and 412-413) that the character and status of the Commonwealth as a national government was not relevant in ascertaining the scope of the executive power in its application domestically. Indeed, the judgments in that case contradict the suggestion, the Australian Assistance Plan being a domestic scheme.
17. From the conclusion that the commemoration of the Bicentenary falls squarely within Commonwealth executive power other consequences follow. The first is that the executive power extends to the incorporation of a company as a means for carrying out and implementing a plan or programme for the commemoration. There is no constitutional bar to the setting up of a corporate authority to achieve this object or purpose in preference to executive action through a Ministry of the Crown. Certainly there is no such bar to the incorporation of a company in the Australian Capital Territory, though we very much doubt that this procedure would enable the Commonwealth to circumvent limitations or restrictions which would otherwise attach to the federal executive power in so far as it extends to the commemoration of the Bicentenary: cf. Johnson v. Kent [1975] HCA 4; (1975) 132 CLR 164, at p 169.
18. Section 51(xxxix) of the Constitution enables the Parliament to legislate in aid of an exercise of the executive power. So, once it is accepted that the executive power extends to the incorporation of the Authority with the object set out in cl.3 of its memorandum of association, s.51(xxxix) authorizes legislation regulating the administration and procedures of the Authority and conferring on it such powers and protection as may be appropriate to such an authority.
19. It may be possible to support this conclusion without recourse to s.51(xxxix). The requisite legislative power may be deduced from the nature and status of the Commonwealth as a national polity in just the same way as Dixon J. in the Communist Party Case thought that legislation prohibiting specific acts of sedition could be upheld. However it is unnecessary for us to pursue this question.
20. Another consequence of the conclusion that the commemoration of the Bicentenary falls within the executive power is that the plaintiffs' challenge to the validity of s.10 and the appropriation to which it refers must fail. An appropriation for a valid exercise of the executive power of the Commonwealth is necessarily an appropriation for a purpose of the Commonwealth within the meaning of s.81 of the Constitution, even if one adopts a narrow view of the expression "purposes of the Commonwealth" in that section. In one sense this is by the way. There has been a long-standing controversy about the meaning of "purposes of the Commonwealth" in s.81. In the Pharmaceutical Benefits Case Latham C.J. (at p 254) and McTiernan J. (at p 274) considered that the expression meant in effect such purposes as the Parliament may adopt as purposes of the Commonwealth, whereas Rich, Starke, Dixon and Williams JJ. (at pp 264, 265-266, 271-272, 280-282) thought that it meant purposes otherwise within the province of the Commonwealth. See the passage in the judgment of Dixon J. (at pp 271-272) which we quoted earlier. Subsequently in the Australian Assistance Plan Case McTiernan, Mason and Murphy JJ. (at pp 367-369, 392-396, 419) concluded that s.81 enabled the Parliament to appropriate for such purposes as it may determine. Jacobs J. considered (at p 410) that the validity of an appropriation is not justiciable and is therefore not susceptible to legal challenge. The case therefore stands as an authority for the proposition that the validity of an appropriation act is not ordinarily susceptible to effective legal challenge. It is unnecessary to consider whether there are extraordinary circumstances in which an appropriation of money by the Parliament may be susceptible to such challenge. It suffices to say that, if there be such cases, the present is not one of them.
21. In reaching this conclusion we are not to be taken as asserting or implying that the plaintiffs as citizens or taxpayers do not have a sufficient interest to challenge the appropriation. On the view which we take it is unnecessary to consider this question.
22. We turn now to the challenge to the validity of ss.22 and 23. The defendants submit that the validity of these sections is sustained by the incidental or implied legislative powers and the specific legislative powers conferred by ss.51(i), (xviii), (xx) and 122 of the Constitution. Thus, s.51(i) clearly supports s.22(1)(d). That provision, being a conditional prohibition of the importation of articles into Australia, necessarily falls within the trade and commerce power.
23. The power conferred by s.51(xviii) with respect to copyright, designs and trade marks may be capable of sustaining the provisions relating to the name and the official symbols of the Authority. But it is difficult to see how this power can support all the wide-ranging provisions contained in ss.22 and 23. The plaintiffs contend that the relevant provisions relate to the use of expressions which do not necessarily identify the goods, their origin or their owner. The plaintiffs also contend that, as the Authority does not itself engage in trade, the provisions go beyond trade mark protection. The plaintiffs' submission on this point rests partly on Attorney-General for N.S.W. v. Brewery Employes Union of N.S.W. ("the Union Label Case") [1908] HCA 94; (1908) 6 CLR 469, although Mr Basten for the plaintiffs conceded that there may have been an increase in the denotation of the power since that case was decided. By way of illustration, the concept of a trade mark now extends to a mark that distinguishes services as well as goods. If we bear this development in mind, it is possible to say, consistently with both the majority and minority judgments in the Union Label Case, that two essential characteristics of a trade mark are (a) that it has the capacity to distinguish particular goods and services; and (b) that the proprietor of the mark has some connection with the goods and services. Many of the expressions listed in par.(d)(i) of s.22(6) and reg.4 are common words and expressions, having no capacity to distinguish the Authority or the activities in which it engages or which it promotes.
24. Nor does the corporations power (s.51(xx)) support the two sections in their entirety. If it be assumed that the Authority is a financial corporation, then the corporations power would authorize a law protecting the Authority's right to the use of its registered name and the symbols by which it was known by prohibiting the deceptive or confusing use by others of that name or symbols or some other similar name, expression or symbols. But the provisions of s.22(1), when read with s.22(6)(d)(i) and (ii) range far beyond protection of that kind. It is significant that the notion expressed in par.(c)(ii), concerning prescribed symbols that so nearly resemble an official symbol of the Authority as to be capable of being mistaken for it, is not reflected in par.(d) dealing with prescribed expressions. It is also significant that the requirement in s.22(4), that the prosecution prove that the use of an abbreviation of the name of the Authority was intended to imply a connection with the Authority, has no application to the use of prescribed expressions. In this situation the corporations power does not support the regime sought to be created by ss.22 and 23.
25. The same comment must be made about the territories power (s.122). That head of legislative power would extend to the incorporation of a corporation in the Australian Capital Territory and to the protection of its corporate name and symbols. But the territories power on its own cannot sustain the regime which ss.22 and 23 attempt to create.
26. To return again to the incidental and implied powers. It is necessary, first, to refer to the four devices or symbols to the plaintiffs' use of which the Authority refused to consent. The first device consists of the profile of a human head surrounded by the two words "AUSTRALIAN BICENTENARY" with the caption "DISCOVERED + DISCOLOURED". The device is quite different from the official symbols of the Authority. And the words "AUSTRALIAN BICENTENARY", though prescribed by reg.4 for the purposes of s.22(6)(d), are not used in the device in conjunction with "1788", "1988" or "88". Accordingly, the plaintiffs' proposed use of the expression does not fall within the concluding words of s.22(6)(d). The third and fourth devices to be used by the plaintiffs do not involve the use of a prescribed expression or an official symbol.
27. However the plaintiffs' second device stands in a different situation. It has a central symbol, bearing the figures "1788" and "1988", that has a discernible similarity to the first and second official symbols of the Authority. The inner symbol is surrounded with an outer ring in which the words "200 YEARS OF SUPPRESSION AND DEPRESSION" appear. The device involves the use of a prescribed expression, the words "200 years", in conjunction with "1788" and "1988". Furthermore, the device incorporates a symbol that "so nearly resembles" the first and second official symbols "as to be capable of being mistaken for" those symbols. Accordingly, it is only the use of the second of the plaintiffs' devices that would expose the plaintiffs to liability for the commission of offences against s.22(1)(a), (b) and (c), in the absence of the written consent of the Authority.
28. Section 24 recognizes that ss.22 and 23 are provisions "for the protection of (the) name, property or interests" of the Authority. The defendants submit that, when the two sections are so understood, the executive power, operating in conjunction with the incidental power (s.51(xxxix)) or the implied power, supports them as laws reasonably adapted to the purpose of facilitating and protecting the attainment of the objects of the commemoration of the Bicentenary and the objects of the Authority. This, the defendants argue, includes the protection of the integrity of the official symbols and the protection of the prescribed expressions.
29. The broad proposition advanced by the defendants travels too widely in
two respects. First, it suggests that the relevant exercise
of executive and
legislative power is directed not to the commemoration of the Bicentenary as
such but to the attainment of objects
lying beyond the commemoration itself.
Secondly, the proposition suggests that the relevant exercise of power extends
to the attainment
of the objects of the Authority as though they are
independent of the commemoration of the Bicentenary. In one respect this is
so.
The external affairs power supports the prescription in s.22(6)(d)(i) of
the last four expressions mentioned in that paragraph. Australia is a party
to the Convention Relating to International Exhibitions
of 1928 as amended by
subsequent Protocols. Expo 88 is an international exhibition to which the
Convention applies. By Art.9(3)
Australia is bound to:
"use whatever means it considers most appropriate
under its own legislation to act against the
organisers of false exhibitions or exhibitions to
which participants might be fraudulently attracted
by false promises, notices or advertisements".
30. Apart from this aspect of s.22(6)(d)(i), the federal executive power authorizes the commemoration of the Bicentenary and what is incidental to it. Likewise, in the manner already discussed, federal legislative power extends to the same extent. In exercising that power the Parliament may protect the name of the Authority, authorize the prescription of appropriate official symbols for use by the Authority and prohibit unauthorized use by others of the Authority's name or of those symbols, or likenesses of them, for the purpose of protecting their integrity. The implied legislative power, as well as the incidental power (s.51(xxxix)), enables Parliament to enact coercive laws: see Burns v. Ransley. Consequently, if the provisions of ss.22 and 23 relating to the use of the Authority's name and prescribed symbols stood on their own we would uphold their validity.
31. If we look to s.22(1)(a) as it applies to prescribed expressions, the first six expressions prescribed by s.22(6)(d)(i) are expressions which may be used in conjunction with "1788", "1988" or "88", in connection with a business, trade, profession or occupation, in a great variety of circumstances, without prejudicing in any way the commemoration of the Bicentenary or the attainment of the objects of the Authority. The expressions are commonly used by all sections of the community, particularly in this the Bicentennial year. There is every reason for thinking that a wide range of persons, companies and organizations have occasion to use them otherwise than for purposes of advertising and publicity, if only to record what they are doing in the Bicentennial year. And there is no reason for thinking that the protection of the integrity of the commemoration of the Bicentenary and the attainment by the Authority of its objects require the prohibition of such a use of the six prescribed expressions in the circumstances mentioned in s.22(1), subject only to the written consent of the Authority.
32. The difficulties do not stop at this point. Take the prescription of "Melbourne" and "Sydney" in par.(d)(i). The use of "Family Law Conference Melbourne 1988", without the prior written consent of the Authority, in connection with a conference of the legal profession in that city this year would infringe s.22(1)(a). Yet it is impossible to perceive how the prohibition of such a use contributes to the protection of the integrity of the commemoration of the Bicentenary or the attainment of the objects of the Authority. Many similar illustrations (e.g., clothing or emblems displaying support for sporting teams) might be given of the use of a combination of "Melbourne" and "1988" or "Sydney" and "1988".
33. The illustrations given in the two preceding paragraphs indicate that the effect of the provisions is to give the Authority an extraordinary power to regulate the use of expressions in everyday use in this country, though the circumstances of that use in countless situations could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects. In arming the Authority with this extraordinary power the Act provides for a regime of protection which is grossly disproportionate to the need to protect the commemoration and the Authority. It is therefore no answer to say that the Authority's power to refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s.22(1).
34. Here the framework of regulation created by s.22(1)(a) with s.22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.
35. It follows that a reading down of the power to refuse or grant consent under s.22(1)(a) to the use of prescribed expressions would not avail to bring the provision within power. In any event it is not clear how one would read the provision down. The question is complicated by the contrast between the form of par.(c)(ii) and pars (d)(i) and (ii). In the latter paragraphs no attempt is made to confine the concept of "prescribed expressions" to expressions the use of which would, in specified circumstances, convey some suggestion of connection or affiliation with the Authority or the commemoration which it is promoting and assisting. Moreover, the absence of any express limitation on the power of prescription contained in par.(d)(ii) is consistent with an intention to confer on the Authority a wide-ranging power to regulate the use of expressions in common use, in the belief that there is a possibility that in some circumstances the expressions could conceivably be used in a way that would be detrimental to the interests sought to be protected. Again, it is not easy to see how the power of prescription should be read down so as to bring it within the limits of constitutional power.
36. At this point it is necessary to consider the relief sought by the plaintiff. The statement of claim seeks, amongst other things, a declaration that ss.22 and 23 are invalid. That declaration is sought on the footing that the first plaintiff intends selling, offering for sale and has in his possession for intended sale articles of clothing to which the name of the Authority and/or a prescribed symbol or a prescribed expression has been applied (par.45 of the amended statement of claim). The general thrust of the plaintiffs' case is that ss.22 and 23 are invalid in their entirety. However, it is apparent that the validity of the two sections is not an all or nothing question. The invalidity of s.22(1) in its application to prescribed expressions, along with s.22(6)(d)(i) and (ii), would necessarily raise questions of severability. As these questions have not been debated in argument, it is proper to confine the plaintiffs' claim for relief so that the declaration of invalidity relates to the particular prescribed expression for the use of which the consent of the Authority was required, yet refused, that is, the expression "200 years". The plaintiffs has not made out a case for a declaration of invalidity in respect of prescribed symbols.
37. In the result we would overrule the demurrer so far as it asserts that the plaintiffs lack standing to challenge ss.22 and 23 and that s.22(6)(d)(i) is valid to the extent that it relates to the expression "200 years". Otherwise we would allow the demurrer. We would declare that s.22(6)(d)(i) is invalid to the extent that it refers to the expression "200 years".
WILSON AND DAWSON JJ. We agree with the conclusion reached by Mason C.J., Deane and Gaudron JJ. and wish only to add some comments about the extent to which power is vested in the Commonwealth Parliament to make laws with respect to matters not specifically enumerated in s.51 or elsewhere in the Constitution.
2. If the specifically enumerated powers are taken to include par.(xxxix) of s.51, then we consider that in the ultimate analysis the Commonwealth Parliament does not possess any legislative power which could not be assigned to a particular provision or combination of provisions. Section 51(xxxix), it will be recalled, confers power to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in either House thereof, or in the government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. The subject has been considered in the context of the suppression of seditious or subversive activities. In Australian Communist Party v. The Commonwealth ("the Communist Party Case") [1951] HCA 5; (1951) 83 CLR 1, at pp 187-188, Dixon J. did not doubt that particular laws upon those matters might be supported under powers obtained by combining the appropriate part of the text of s.51(xxxix) with the text of some other power, including the executive power under s.61. However, he found such an exercise had an artificial aspect and preferred to find the source of the power to legislate against subversive conduct "in principle that is deeper or wider than a series of combinations of the words of s.51(xxxix.) with those of other constitutional powers." The power was to be found, he said, in the very nature of the polity established by the Constitution and the capacity which it must of necessity have to protect its own existence.
3. But this view was a minority view. The majority of the members of the
Court considered the validity of the impugned Act by reference
to the question
whether it was supported by s.51(xxxix) in association with either s.51(vi) or
s.61: see per Latham C.J. at p.156;
per McTiernan J. at pp 211-212; per
Williams J. at p 230; per Webb J. at p 233; and per Kitto J. at p 275.
Fullagar J., at p 266,
after expressing the view that the Act could be
supported, if at all, only as an exercise of the defence power, continued:
"I do not think it can be supported under the otherWe are unable to conceive of an implication of the kind described that would not be sufficiently and accurately described in the terms of s.61 supported by s.51(xxxix). Indeed, the execution and maintenance of the Constitution and of the laws of the Commonwealth are concepts which seem to us to comprehend all that is to be implied "from the existence and nature of the Constitution as the foundation of a body politic."
power invoked, whether that power be regarded as
based on the joint operation of s.61 and
s.51(xxxix.) of the Constitution or on an
implication from the existence and nature of the
Constitution as the foundation of a body politic."
4. Of course, subversion, sedition and the like are matters of a very special kind, striking, as they do, at the very foundation of the Constitution. See the Communist Party Case; Burns v. Ransley [1949] HCA 45; (1949) 79 CLR 101, at p 116; R. v. Sharkey [1949] HCA 46; (1949) 79 CLR 121, at pp 148-149; Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at pp 94-95. It would be dangerous to attempt to derive too much from the cases dealing with those matters. This is particularly so when the decision in each of these cases was referable to the incidental power conferred by s.51(xxxix). A fortiori, those cases do nothing to support the notion that the Commonwealth Parliament has power to legislate with respect to anything that it regards as of national interest and concern. As Gibbs J. pointed out in Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338, at p 378, "the growth of the Commonwealth to nationhood did not have the effect of destroying the distribution of powers carefully effected by the Constitution."
5. Mason J., in the same case, discussed the scope of the executive power
conferred on the Commonwealth Government by s.61 of the Constitution. At pp
397-398, his Honour said:
"But in my opinion there is to be deduced from theIf in this passage his Honour is saying no more than that the character and status of the Commonwealth as a national government is an element to be considered in the construction of s.61 of the Constitution, then we respectfully agree with it. It seems to us to underline the proposition that no advantage is to be gained by seeking the limits of the legislative power of the Commonwealth otherwise than in the terms of the Constitution itself.
existence and character of the Commonwealth as a
national government and from the presence of
ss.51(xxxix.) and 61 a capacity to engage in
enterprises and activities peculiarly adapted to
the government of a nation and which cannot
otherwise be carried on for the benefit of the
nation. ...
...
However, the executive power to engage in
activities appropriate to a national government,
arising as it does from an implication drawn from
the Constitution and having no counterpart, apart
from the incidental power, in the expressed heads
of legislative power, is limited in scope. It
would be inconsistent with the broad division of
responsibilities between the Commonwealth and the
States achieved by the distribution of legislative
powers to concede to this aspect of the executive
power a wide operation effecting a radical
transformation in what has hitherto been thought to
be the Commonwealth's area of responsibility under
the Constitution, thereby enabling the Commonwealth
to carry out within Australia programmes standing
outside the acknowledged heads of legislative power
merely because these programmes can be conveniently
formulated and administered by the national
government."
6. Bearing in mind what was said obiter by five members of the Court in a joint judgment in State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) [1987] HCA 38; (1987) 163 CLR 329, at p 357, we nevertheless think it desirable to deprecate speaking of implied powers as distinct from the proper scope of the executive power conferred by s.61 lest the use of the term tend to suggest the existence of some new or independent source of power. The Commonwealth cannot be accorded a legislative power to cross the boundaries between State and Commonwealth responsibility laid down by the Constitution. It is as axiomatic in constitutional law as it is elsewhere that the sum cannot be greater than its parts. Even if it be convenient in some circumstances to look at the totality rather than individual heads of power, the Commonwealth remains confined to that which is granted to it by the Constitution. Moreover, the range of activities which, not being expressly referred to elsewhere in the Constitution, are found on its proper construction to fall within s.61 will necessarily of their very nature lie outside the competence of the States for the reason that such powers will be exercisable only by the Commonwealth and for Commonwealth purposes. The truth is that the character and status of the Commonwealth as a national government are qualities which are themselves to be found within the confines of the Constitution. This is not to deny, of course, that implications may properly be made in the interpretation of the Constitution. See West v. Commissioner of Taxation (N.S.W.) [1937] HCA 26; (1937) 56 CLR 657, at pp 681-682. However, that is not called for in this case.
7. In this case it is enough to say that, viewing its powers as a whole, the Commonwealth must necessarily have the executive capacity under s.61 to recognize and celebrate its own origins in history. The constitutional distribution of powers is unaffected by its exercise. The exercise of executive power for this purpose does not travel beyond constitutional boundaries and legislation which is incidental to it falls within s.51(xxxix).
BRENNAN J. This is a demurrer by the Commonwealth of Australia and The Australian Bicentennial Authority to the plaintiffs' amended statement of claim. The allegations therein contained, which are to be taken as fact for the purposes of the demurrer, include the following: the plaintiffs are Aborigines, the first of whom intends to design and print for sale and the others of whom intend to sell by retail articles of clothing bearing certain symbols and expressions relating to the bicentenary of the first European settlement in Australia in 1788. The first plaintiff applied to the Authority for its consent to use the symbols and expressions in the production of articles of clothing. The symbols and expressions, appearing in documents set out in the demurrer, pungently protest that European settlement has had unhappy consequences for Australian Aborigines. The Authority refused its consent, expressing the view that giving consent would be a dereliction of its duty under an Act of Parliament (The Australian Bicentennial Authority Act 1980 (Cth)) "to ensure the proper use of its symbol and prescribed expressions by authorised persons". Section 22 of the Act purports to confer on the Authority a power to consent to the use of its symbol and prescribed expressions and proscribes certain uses without consent. Section 23 provides for forfeiture to the Commonwealth of all articles and goods by means of which or in relation to which an offence against s.22(1) is committed. It appears that only one of the uses for which consent was sought and refused fell within s.22, but pars.45 and 46 of the amended statement of claim contain an allegation that the plaintiffs intend in the future to use any of the prescribed symbols and expressions.
2. The plaintiffs challenge the validity of the legislative scheme relating to the commemoration of the bicentenary of the first European settlement in Australia in 1788 (hereafter "the Bicentenary"). They seek a declaration that a number of sections, including ss.22 and 23, of the Act are beyond the legislative power of the Commonwealth and "a declaration that the appropriation of money by the Commonwealth of Australia for the purposes of the Australian Bicentennial Authority or the celebration of the bicentenary in 1988 of the First European settlement in Australia is ultra vires, not authorised by s.83 of the Constitution and unlawful". The defendants object that the plaintiffs have no locus standi to seek those declarations except in relation to the prescribed expressions to be found in the particular use which fell within s.22 and for which consent was refused. Once it is conceded - as it must be - that the plaintiffs have a locus standi to assert their freedom to use the symbols and expressions which they intend to use, it is clear that the plaintiffs have standing to challenge the prohibition on use of any of the symbols and expressions referred to in pars.45 and 46 of the amended statement of claim, including prescribed symbols and expressions for which no consent has hitherto been sought. The plaintiffs thus have standing to challenge the validity of ss.22 and 23. I propose to consider that challenge and to put aside consideration of the plaintiffs' locus standi to seek wider declarations. In the event, it will be necessary to canvass the validity of the Act in the course of considering the extent of the legislative powers on which the defendants rely to support the validity of ss.22 and 23.
3. The Authority is not created by the Act. It is a company limited by
guarantee, incorporated on 21 January 1980 under the Companies
Ordinance 1962
of the Australian Capital Territory. The majority of the subscribers to the
Memorandum of Association were the leading
political figures of the day in the
Parliaments of the Commonwealth and the States, drawn from both government and
opposition. Clause
3 of its Memorandum of Association describes the primary
object for which the Authority was established:
"to formulate, to plan, to develop, to promote, toOne of the company's "associated objects" is-
coordinate and to implement, consistently with
applicable legislation of the Parliament of the
Commonwealth, a national programme of
celebrations and activities ... to commemorate
the bicentenary in 1988 of the first European
settlement in Australia".
"(5) to stimulate throughout the Australian
community an enduring consciousness of the
historical basis and significance of that
commemoration".
4. The company has powers appropriate to the fulfilment of its objects: cl.4.
Its income and property must be applied solely towards
the promotion of its
objects: cl.5. The liability of its members is limited to $50: cl.6. On a
winding up, any surplus is to be
paid to the Commonwealth: cl.7. The
Australian Bicentennial Authority Act ("the Act"), enacted subsequent to
incorporation of the
Authority, modified several of these provisions.
However, the Act does not
define the objects which the Parliament intends the
Authority
to pursue. It does not modify the objects set out in the
Memorandum;
indeed, it refers to those objects as the Authority's objects.
The Act makes special provision for the termination of the appointment
of the
Authority's Chairman (s.7), the appointment of senior
officers (s.8),
remuneration of the Chairman and directors of the Authority
(s.9), the rights
of public service employees (ss.17
and 18) and the distribution of any surplus
on a winding up among the Commonwealth
and the States: s.21(4). The Minister
is empowered
to give the Board binding policy directions (s.6), and to direct
the form of,
and to approve of, the Authority's annual financial
estimates
with which the Authority's expenditure must accord: s.11. Section
10
provides:
"(1) There are payable to the Authority suchFrom time to time Parliament has appropriated moneys for services under the following heading:
moneys as are appropriated by the Parliament for
the purposes of the Authority.
(2) The Minister for Finance may give
directions as to the amounts in which, and the
times at which, moneys referred to in sub-section
(1) are to be paid to the Authority."
"Division 517. - AUSTRALIAN BICENTENNIAL AUTHORITY
1.- For expenditure under the Australian
Bicentennial Authority Act 1980."
5. The defendants rely chiefly on s.51(xxxix) of the Constitution as the
legislative power to support the Act, submitting that the Act is a law with
respect to matters incidental to the execution
of the executive power of the
Commonwealth "to engage in enterprises and activities appropriate and adapted
to the national government
of Australia". This submission echoes a passage in
the judgment of Mason J. in Victoria v. The Commonwealth and Hayden ("the
A.A.P
Case") [1975] HCA 52; (1975) 134 CLR 338, where his Honour said (at p 397):
"the incidental power contained in s.51(xxxix.)
taken in conjunction with other powers, notably
s.61 itself, adds a further dimension to what may
be achieved by the Commonwealth in the exercise
of other specific powers. So in Burns v.
Ransley ((1949) [1949] HCA 45; 79 CLR 101) and The King v.
Sharkey ((1949) [1949] HCA 46; 79 CLR 121), ss.24A, 24B and
24D of the Crimes Act 1914-1946 (Cth) were held
to be supported by the combination of ss.51
(xxxix.) and 61. ... the Commonwealth enjoys,
apart from its specific and enumerated powers,
certain implied powers which stem from its
existence and its character as a polity
(Australian Communist Party v. The Commonwealth
((1951) [1951] HCA 5; 83 CLR 1, at pp 187-188)). So far it
has not been suggested that the implied powers
extend beyond the area of internal security and
protection of the State against disaffection and
subversion. But in my opinion there is to be
deduced from the existence and character of the
Commonwealth as a national government and from
the presence of ss.51(xxxix.) and 61 a capacity
to engage in enterprises and activities
peculiarly adapted to the government of a nation
and which cannot otherwise be carried on for the
benefit of the nation."
6. The scope of the legislative power conferred by s.51(xxxix) in respect of matters incidental to the execution of the executive power of the Commonwealth depends, of course, on the scope of the executive power. The scope of s.61 has not been charted nor, for the reasons which his Honour stated at pp 397-398, is its scope amenable to exhaustive definition. But it is not necessary to attempt an exhaustive definition in order to ascertain the operation of s.51(xxxix) in conjunction with s.61. The particular enterprise or activity in which the Executive Government engages or proposes to engage in execution of the executive power is the lynchpin of the legislative power, and it is necessary to determine only the existence of executive power to engage in that enterprise or activity.
7. In this context, we are concerned not with the powers of the Executive Government conferred by statute but with powers otherwise vested in it. Some of those powers are classified by the common law as prerogative powers - for example, the power to make a treaty; some are mere capacities of a kind which may be possessed by persons other than the Crown. A prerogative power in the sense understood by Blackstone (Commentaries on the Laws of England, (1765), Bk 1 Ch 7, p 232) "can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects": see Joseph v. Colonial Treasurer (N.S.W.) [1918] HCA 30; (1918) 25 CLR 32, at p 48; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, at p 155. There is no doubt that some of the prerogative powers of the Crown at common law are included in the executive power of the Commonwealth: Barton v. The Commonwealth [1974] HCA 20; [1974] HCA 20; (1974) 131 CLR 477, at p 498. The difficulty, as Evatt J. pointed out in Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. [1940] HCA 13; (1940) 63 CLR 278, at pp 319-322, is to ascertain the extent to which the Crown's prerogative powers may be exercised by the respective governments of a federation when the Constitution makes no express provision for their distribution. That is a difficulty to be addressed in this case but, first, it is desirable to identify the categories of powers and capacities which are included in the executive power of the Commonwealth.
8. Dicey (Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p 424) regarded the prerogative as "the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown". Though that is a broader notion of the prerogative than Blackstone's, the excess in Dicey's definition must be in the Crown's capacities, not in the Crown's powers. However that may be, the executive power of the Commonwealth includes that mass of powers which the Executive Government possesses to act lawfully without statutory authority, together with statutory powers and capacities. It follows that an act done in execution of an executive power of the Commonwealth is done in execution of one of three categories of powers or capacities: a statutory (non-prerogative) power or capacity, a prerogative (non-statutory) power or capacity, or a capacity which is neither a statutory nor a prerogative capacity. The relevant statute defines the scope of a power or capacity in the first category, but there is no express criterion by which non-statutory powers and capacities may be classified as falling within the executive power of the Commonwealth.
9. The scope of prerogative or other non-statutory powers and capacities
within the executive power of the Commonwealth has been
the source of some
controversy. The difficulty which Evatt J. pointed out has not been finally
solved. In the A.A.P. Case, Barwick
C.J. said (at p 362):
"With exceptions that are not relevant to thisAnd Gibbs J. said (at pp 378-379):
matter and which need not be stated, the
executive may only do that which has been or
could be the subject of valid legislation."
"According to s.61 of the Constitution, theIn The Commonwealth v. Tasmania. The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1, Gibbs C.J. (at pp 108-109) again cautioned against attributing to the executive power of the Commonwealth a scope which was not determined by reference to the constitutional division of responsibility between the Commonwealth and the States.
executive power of the Commonwealth 'extends to
the execution and maintenance of this
Constitution, and of the laws of the
Commonwealth'. Those words limit the power of
the Executive and, in my opinion, make it clear
that the Executive cannot act in respect of a
matter which falls entirely outside the
legislative competence of the Commonwealth."
10. Jacobs J. in the A.A.P. Case took a broader view of the executive power,
saying (at pp 405-406):
"Primarily its exercise is limited to those areas
which are expressly made the subject matters of
Commonwealth legislative power. But it cannot be
strictly limited to those subject matters. The
prerogative is now exercisable by the Queen
through the Governor-General acting on the advice
of the Executive Council on all matters which are
the concern of Australia as a nation. Within the
words 'maintenance of this Constitution'
appearing in s.61 lies the idea of Australia as a
nation within itself and in its relationship with
the external world, a nation governed by a system
of law in which the powers of government are
divided between a government representative of
all the people of Australia and a number of
governments each representative of the people of
the various States."
11. Section 61 refers not only to the execution and maintenance of the laws of the Commonwealth (a function characteristically to be performed by execution of statutory powers); it refers also to "the execution and maintenance of this Constitution" (a function to be performed by execution of powers which are not necessarily statutory). I respectfully agree with Jacobs J. that the phrase "maintenance of this Constitution" imports the idea of Australia as a nation. I would briefly state my reasons for holding that the function which that phrase assigns to the Executive Government relates not only to the institutions of government but more generally to the protection and advancement of the Australian nation.
12. It is unnecessary to dwell upon the executive power to protect the nation, which Latham C.J. in Burns v. Ransley [1949] HCA 45; (1949) 79 CLR 101, at pp 109-110, held to be the foundation for laws enacted under s.51(xxxix) for the protection and maintenance of the Government. Although Dixon J. took the view that the power to legislate against subversive conduct came from a wider or deeper source (Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at pp 187-188), there can be no doubt that the Executive Government of the Commonwealth has an executive power to protect the nation.
13. This Court has not settled the questions whether and to what extent it is within the executive power of the Commonwealth for the Executive Government of the Commonwealth to exercise its prerogative powers or to engage in lawful activities or enterprises calculated to advance the national interest. Though the Constitution gives no express answer to these questions, the answer may be derived from what the Constitution was intended to do and has done. With great respect to those who hold an opposing view, the Constitution did not create a mere aggregation of colonies, redistributing powers between the government of the Commonwealth and the governments of the States. The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite "in one indissoluble Federal Commonwealth", melding their history, embracing their cultures, synthesizing their aspirations and their destinies. The reality of the Australian nation is manifest, though the manifestations of its existence cannot be limited by definition. The end and purpose of the Constitution is to sustain the nation. If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power would deny to the Australian people many of the symbols of nationhood - a flag or anthem, for example - or the benefit of many national initiatives in science, literature and the arts. It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s.61 does confer on the Executive Government power "to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation", to repeat what Mason J. said in the A.A.P. Case. In my respectful opinion, that is an appropriate formulation of a criterion to determine whether an enterprise or activity lies within the executive power of the Commonwealth. It invites consideration of the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question and of the need for national action (whether unilateral or in co-operation with the States) to secure the contemplated benefit. The variety of enterprises or activities which might fall for consideration preclude the a priori development of detailed criteria but, as cases are decided, perhaps more precise tests will be developed.
14. The scope of the legislative power conferred by s.51(xxxix) in
conjunction with s.61 depends on what the Executive Government has done or
intends to do in execution of its power. Section 51 (xxxix) confers a power
to make a law not with respect to the subject matter of an executive power of
the Commonwealth, nor even
with respect to a matter incidental to that subject
matter; it confers a power to make a law only with respect to a matter
"incidental
to the execution" of an executive power of the Commonwealth. In
Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481, at p 497,
Knox C.J., Rich
and Dixon
JJ. pointed to the confines of the incidental power when it is invoked in
conjunction with another legislative
power:
"It has often been pointed out that the paragraphThe distinction was again noted in Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169, at pp 177-178. In the present context, the legislative power extends only to a matter attending or arising in the execution of the executive power. It fastens on and is limited by what the Executive Government does or intends to do in exercise of its executive power. The limited scope of the legislative power may be illustrated by reference to the prerogative power to make a treaty with a foreign state. Section 51(xxxix) confers no power to make a law to implement the treaty, for the execution of the prerogative power to make a treaty does not embrace the implementing of the treaty once made. The external affairs power (s.51(xxix)) is available to implement the treaty, the incidental power being limited to matters incidental to treaty-making.
confers power to make laws with respect, not to
matters incidental to the subjects which are
confided, by sec.51 or elsewhere, to the
Parliament, but to matters which are incidental
to the execution of the legislative power. The
distinction between a matter incidental to the
execution of a power, something which attends or
arises in its exercise, and a matter incidental
to a subject to which the power is addressed, is
material."
15. By reason of the confined scope of the power conferred by s.51(xxxix), the area within which a law enacted under that paragraph may create offences is necessarily confined. At least since the Case of Proclamations [1610] EWHC J22 (KB); [1610] EWHC J22 (KB); (1611) 12 Co Rep 74 (77 ER 1352), the exercise of prerogative power has not been capable of creating a new offence. Nor can the exercise by the Executive Government of a non-statutory capacity create an offence. What offences can be created by a law with respect to a matter incidental to the execution of an executive power? In R. v. Kidman [1915] HCA 58; (1915) 20 CLR 425 Isaacs J., noting that punishment is beyond the scope of the executive power, observed (at p 441) that "(p)unishment is an ordinary means employed by Legislatures to guard and assist the executive power". This was the basis on which Latham C.J. upheld the laws challenged in Burns v. Ransley: see Australian Communist Party v. The Commonwealth, at pp 211-212,231. However, the observation by Isaacs J. does not emphasize that the offence-creating law must be in respect of a matter incidental to the execution of executive power, presumably because his Honour regarded punishment as something "quite unnecessary to the existence or exercise of the executive functions". With respect, this seems too extreme a view. Punishment may be necessary to protect the Executive Government's execution or attempted execution of its powers from being frustrated or impaired. But it is one thing to create offences in order to protect the efficacy of execution of executive power; it is another to create offences to supplement what the Executive Government has done or proposes to do. Where the Executive Government engages in activity in order to advance the nation - an essentially facultative function - the execution of executive power is not the occasion for a wide impairment of individual freedom (cf. The Tasmanian Dam Case, per Wilson J. at pp 203-204). In my opinion, the legislative power with respect to matters incidental to the execution of the executive power does not extend to the creation of offences except insofar as is necessary to protect the efficacy of the execution by the Executive Government of its powers and capacities.
16. In the light of these principles, I turn to examine the present case. The defendants point to two acts, attributed to the Executive Government of the Commonwealth, as the execution of executive power on which legislative power to support the Act depends. The first is the making of an agreement among the governments of the Commonwealth and States (and perhaps the government of the Northern Territory also) to make administrative arrangements for the commemoration of the Bicentenary; the second is the incorporation of the Authority. Ex hypothesi the making of such an agreement is an act which the Executive Government alone may do but the incorporation of the Authority is more doubtfully an act of the Executive Government. Incorporation followed upon compliance by the subscribers with the requirements of the Ordinance: it was primarily an act of the subscribers. Whether or not incorporation is to be regarded as an act of the Executive Government of the Commonwealth, these two acts seem to me to be quite insufficient to found legislative power to support the Act. These two acts were done and their effect was achieved without any need for legislative support. The Act does nothing to enhance their efficacy. If these be the only material acts done in execution of the executive power of the Commonwealth, the Act is not a law with respect to any matter incidental to the doing of those acts.
17. A firmer foundation for the legislative power to support the Act may be found in the activity of organizing the commemoration of the Bicentenary. The inter-government agreement and the incorporation of the Authority were preliminary to the organization of the commemoration by the agency of the Authority. If the executive power of the Commonwealth includes a power to organize the commemoration through the agency of the Authority, the Act which governs the relationship of the Executive Government with the agent and which provides for the funding of the organization and the distribution of any surplus on winding up is clearly a law with respect to matters incidental to that activity. The threshold question is whether the commemoration of the Bicentenary through the agency of the Authority is an activity to which the executive power of the Commonwealth extends.
18. The first European settlement in Australia was an event of overwhelming significance in Australian history, albeit its significance for the Aboriginal inhabitants of 1788 was profoundly different from its significance for the European settlers of that time. The ensuing two centuries have changed but not eliminated differences in the significance of the event for different people; indeed, the significance of the event has taken on new aspects as the descendants of Aborigines and of Europeans and of both have appraised that significance for themselves in the light of their own experiences and as immigrants from all parts of the world have made their appraisement in the light of the history and culture of their places of origin. Whatever significance one chooses to assign to the event, it was a turning point in the history of those who now make up the Australian nation. In 1788, a system of law and government, religious and ethical beliefs, a money economy, the institution of private property, an urban and agrarian society, and forms of literacy and numeracy that were previously unknown in this country were introduced. Those innovations set the course of modern Australian development and, of course, radically and for ever changed the life, religion, culture, laws and institutions of Australian Aborigines. Although it is arguable that, since the first European settlement occurred in New South Wales, the commemoration should be regarded properly as a State affair, the first European settlement has undoubted significance for the whole of Australia. Giving to the executive power of the Commonwealth the scope which I have described, that power undoubtedly extends to the organizing of the commemoration of the Bicentenary and the stimulation of "an enduring consciousness of the historical basis and significance of that commemoration". The significance to be attributed to the first European settlement, as contemporary experience shows, is one of the abiding concerns of the Australian people. As the Bicentenary can properly be seen as a matter for commemoration by the Commonwealth, the executive power of the Commonwealth extends to the organization of the commemoration of the Bicentenary, and the agency of the Authority is merely the administrative means by which that activity is to be carried into effect. Section 51(xxxix) empowered the Parliament to make a law in aid of that activity. Putting aside ss.22 and 23 for the moment, the Act is supported by s.51(xxxix) of the Constitution.
19. That conclusion disposes of any challenge to the validity of the
appropriation of moneys for expenditure under the Act. The
Appropriation Acts
and s.10 of the Act direct that payment of the moneys appropriated for the
organization of the commemoration of
the Bicentenary are to be paid to the
Authority whose Board thus acquires control of those moneys and who may thus
direct their application
to the corporate objects of the Authority. However,
the Act prescribes a regime of fiscal control which ensures - at all events,
the contrary has not been suggested - that the moneys are expended on the
organization of the commemoration of the Bicentenary.
Whatever restriction
the phrase "for the purposes of the Commonwealth" imports into the
appropriations power in s.81 of the Constitution, an appropriation for
expenditure under the Act is within the power. That appropriation falls
squarely within "the purposes of the
Commonwealth" as Starke J. defined that
phrase in Attorney-General (Vict.) v. The Commonwealth (1945) 71 CLR 237,
at p
266:
"The purposes of the Commonwealth are those of anHis Honour's view was among the more restrictive views of the appropriations power expressed in that case. It is unnecessary to consider the controversy about constitutional restriction of the appropriations power or the locus standi of an individual to challenge the validity of an appropriation.
organized political body, with legislative,
executive and judicial functions, whatever is
incidental thereto, and the status of the
Commonwealth as a Federal Government."
20. There remains for consideration the validity of ss.22 and 23. If the other provisions of the Act were invalid, ss.22 and 23 could not stand alone. Though the other provisions of the Act are valid, the validity of these sections depends on special considerations so far as they are supported by s.51(xxxix) of the Constitution. They are clearly severable from the rest of the Act.
21. The effect of s.22(1) is to prohibit the uses therein specified without the consent of the Authority of symbols evocative of the Bicentenary and of ordinary words, place names and figures which are likely to be used in conjunction in reference to the Bicentenary. (There are four words at the end of s.22(6)(d)(i) which relate to the International Exposition held in Brisbane which I omit from the present discussion.) The prohibition applies in any of the ways specified in the paragraphs of s.22(1) irrespective of the purpose of the use of the symbols and expressions or the context in which they appear and it is apt, as the present case illustrates, to inhibit communication about the Bicentenary. Indeed, it imposes an absurd prohibition on the use of "Sydney" or "Melbourne" in conjunction with "1988" (or with "1788" or "88") "in connection with" a business, trade, profession or occupation. Freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of legislative power - for example, wartime censorship - or of a law designed to protect the nation - for example, a law against seditious utterances - but freedom of speech can hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom. If a special provision were necessary to suppress fraud, deceit or the misapplication of Commonwealth funds in the commemoration of the Bicentenary, an appropriate offence-creating provision may have been supportable as a protection of the organization which the Executive Government had set up. But a prohibition on the use of symbols and expressions of communication relating to the Bicentenary in the several ways specified in s.22(1) is not a law with respect to a matter incidental to the execution of a power to organize the commemoration; it is not a law which protects the efficacy of what the Executive Government has done or may do in organizing the commemoration. It is a law with respect to the subject matter of the executive power: the commemoration itself. Such a law purports to control the commemoration in a manner which is beyond the executive power of the Commonwealth and which is not incidental to the execution of that power. Sections 22 and 23 are not saved from invalidity by conferring an unconfined discretion upon the Authority to consent to a particular use of prescribed symbols and expressions. The discretion does not change the character of those sections. Nor is freedom of speech restored by creating a discretionary authority to allow it.
22. The limits on the legislative power to enact penal laws under s.51(xxxix) is of especial importance when the relevant activity undertaken in execution of an executive power is the commemoration of an historical event. Such a commemoration may take many forms, according to the significance placed upon it. The form of national commemorations of historical events usually reflects the significance which the majority of people place upon the event. But there may well be minority views which place a different significance on the same event, as the present case illustrates. It is of the essence of a free and mature nation that minorities are entitled to equality in the enjoyment of human rights. Minorities are thus entitled to freedom in the peaceful expression of dissident views. In this case, the plaintiffs wish to raise a voice of protest against the celebratory commemoration of the Bicentenary, and the defendants contend that ss.22 and 23 are effective to muffle the intended protest. As a matter of construction, ss.22 and 23 do muffle the intended protest. But it cannot be incidental to the organization of the commemoration of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788. By prohibiting the use of the symbols and expressions apt to express such opinions, ss.22 and 23 forfeit any support which s.51(xxxix) might otherwise afford.
23. I respectfully agree with Mason C.J., Deane and Gaudron JJ. that the legislative powers conferred by s.51(xviii) and (xx) and by s.122 of the Constitution do not suffice to support ss.22 and 23 of the Act. However, I agree also that s.51(xxxix) supports ss.22 and 23 with respect to the last four expressions mentioned in s.22(6)(d)(i). The commerce power (s.51(i)) was invoked but only to support s.22(1)(d), a provision which has no application to the facts of the present case. I would therefore hold s.22 other than sub-s.(1)(d) and s.23 invalid save in respect of their operation with respect to the last four expressions mentioned in s.22(6)(d)(i). In respect of s.22(1)(d) and in respect of the last four expressions mentioned in s.22(6)(d)(i) I would allow the demurrer but otherwise I would overrule it.
TOOHEY J. I agree with the conclusion reached by Mason C.J., Deane and Gaudron JJ. in overruling the demurrer so far as it asserts that the plaintiffs lack standing to challenge ss.22 and 23 of the Australian Bicentennial Authority Act 1980 (Cth) and asserts that s.22(6)(d)(i) of the Act is valid to the extent that it relates to the expression "200 years" but otherwise allowing the demurrer.
2. However I do not wish to be taken as agreeing, without qualification, to the statement in their Honours' reasons that "the legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and include such powers as may be deduced from the establishment and nature of the Commonwealth as a polity". I am in general agreement with the view of Wilson and Dawson JJ. that the legislative powers of the Commonwealth are to be found in the enumerated matters in s.51 of the Constitution including, of course, the incidental power in pl.(xxxix).
3. The reference by Dixon J. to implied powers in Burns v. Ransley [1949] HCA 45; (1949) 79 CLR 101, at p 116; The King v. Sharkey [1949] HCA 46; (1949) 79 CLR 121, at pp 148-149; and Australian Communist Party v. The Commonwealth ("the Communist Party Case") [1951] HCA 5; (1951) 83 CLR 1, at pp 187-188, was clearly in the context of legislation against subversive conduct. Dixon J. spoke of "a power to legislate with respect to designs to obstruct the course of government or to subvert the Constitution" (the Communist Party Case, at p 187). The source his Honour found, quoting at p 188 from Black's American Constitutional Law, 2nd ed. (1910), s.153, p 210, "within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities".
4. Although, in the Communist Party Case, Fullagar J. did not think the
relevant legislation could be supported under an express
or implied power, he
did not entirely shut out the existence of the latter, saying, at p 260:
"But I think that, if it ever becomes necessary toBut again, his Honour was speaking of the protection of the Commonwealth. In this respect Dixon J. and Fullagar J. were echoing what had been said in The King v. Kidman [1915] HCA 58; (1915) 20 CLR 425, by Griffith C.J., at p 436, and by Isaacs J., at pp 444-445. A warning was sounded by Evatt J. in The King v. Hush; Ex parte Devanny (1932) 48 CLR 487 when he said, at p 518, in relation to a prosecution under the Crimes Act 1914 (Cth):
examine it (the source of the power to make laws
for the protection of the government and the
Constitution against internal attack) closely, it
may well be found to depend really on an
essential and inescapable implication which must
be involved in the legal constitution of any
polity."
"I protest against the growing tendency to assume,
without argument or proof, the existence of
'inherent' power in the Commonwealth Parliament."
5. It is true that in Attorney-General (Vict.) v. The Commonwealth [1945] HCA 30; (1945) 71
CLR 237 ("the Pharmaceutical Benefits
Case"), at p
269, Dixon J. said of the
power of appropriation given by s.81 of the Constitution:
"Even upon the footing that the power ofBut it is hard to see that anything falling within Dixon J.'s formulation would not also be a matter "incidental to the execution of any power vested by this Constitution in the Parliament ..." (s.51(xxxix)).
expenditure is limited to matters to which the
Federal legislative power may be addressed, it
necessarily includes whatever is incidental to
the existence of the Commonwealth as a state and
to the exercise of the functions of a national
government."
6. For the purpose of disposing of the demurrer it is not necessary to take a
firm position on the matter. But I am presently not
persuaded that any
implied power arising only from the creation of the Commonwealth as a body
politic extends beyond steps necessary
to protect the existence of the
government. A passage in State Chamber of Commerce and Industry v. The
Commonwealth. The Second
Fringe Benefits Tax Case [1987] HCA 38; (1987) 163 CLR 329, at p
357, which may be taken to suggest otherwise, is obiter. The passage
is in
these
terms:
"Subject to constitutional prohibitions, express
or implied, the implied powers (of the
Commonwealth) include a power for the regulation
and supervision of the polity's own activities,
the exercise of its powers and the assertion or
waiver of its immunities."
7. Like Wilson and Dawson JJ., I agree that the character and status of the Commonwealth as a national government is an element to be considered in the construction of s.61 of the Constitution. And if Mason J. was saying no more than this in the passage quoted by their Honours from Victoria v. The Commonwealth and Hayden ("the Australian Assistance Plan Case") [1975] HCA 52; (1975) 134 CLR 338, at pp 397-398, I respectfully agree with Mason J. But s.61 carries its own warning that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". That power cannot transgress the Constitution. However it is entirely appropriate to treat s.61, in conjunction with s.51(xxxix), as authorizing the Commonwealth to commemorate the bicentenary of the first European settlement in Australia. It is unnecessary to dwell on the implications of that event for the history of Australia to reach that conclusion.
8. The present case is concerned with domestic legislation and that is the context in which references to implied powers have been expressed. Other considerations may arise when it is the international personality of the Commonwealth that is in question: The Commonwealth v. Tasmania. The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1, per Dawson J., at p 322. Finally, it need hardly be said that implications may be made for the purposes of interpreting the Constitution: West v. Commissioner of Taxation (N.S.W.) [1937] HCA 26; (1937) 56 CLR 657, per Dixon J., at p 681. But that is not the exercise with which the Court is presently concerned.
ORDER
Demurrer allowed except in so far as it asserts: (1) that the plaintiffs lack standing to challengess.22 and 23 of the Australian Bicentennial
Authority Act 1980 (Cth) ("the Act"); and
(2) that s.22(6)(d)(i) of the Act is valid to the
extent that it relates to the expression "200
years".
Declare that s.22(6)(d)(i) of the Act is valid to the extent that it refers to the expression "200 years".
Order that the defendants pay the plaintiffs' costs of the action.
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