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‘Laws for the Government of any Territory’: Section 122 of the Constitution

Published online by Cambridge University Press:  24 January 2025

Leslie Zines
Leslie Zines*
Affiliation:
School of General Studies, Australian National University
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Extract

The many problems relating to Commonwealth power to make laws for a Territory have arisen because the power itself was a constitutional afterthought. The late Professor Ross Anderson described the Commonwealth of Australia as ‘the child of as hard-headed a mariage de convenance as was ever arranged in the salons of France ’. The marriage was, however, between the self-governing colonies which later became the States. Those who arranged the marriage were concerned primarily with the health and prosperity of the parties to, and the issue of, the union. Whether they were in favour of granting large powers to the Commonwealth or were staunch believers in ‘State Rights’ or whether they were for or against Federation, the chief issue was whether and to what extent each of the colonies should voluntarily reduce its own governmental power by giving some of it to a new self-governing colony which would in area and population embrace all the existing colonies.

Type
Research Article
Information
Federal Law Review , Volume 2 , Issue 1 , March 1966 , pp. 72 - 94
Copyright
Copyright © 1966 The Australian National University

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References

1 Else-Mitchell (ed.), Essays on the Australian Constitution (2nd ed. 1961) 93.

2 The ‘ social contract’ view of the Constitution has been thought by some to require a distinction between internal and external Territories. This is based on the fact that at the time of federation, the Northern Territory was part of South Australia and the area of the Australian Capital Territory was part of New South Wales. In section 6 of the Constitution Act ‘ The States ’ are defined to include ‘ South Australiaincluding the northern territory of South Australia ’. The preamble to the Act refers to the fact that ‘ the people of “ the various colonies ” have agreed to unite in one indissoluble Commonwealth’. It could be argued, therefore, that as the people of the Northern Territory and those in the area that is now the Australian Capital Territory were from the beginning within ‘ The Commonwealth ’ and parties to the agreement, referred to in the preamble, those Territories must be treated as an integrated part ofthe‘ federal system’. In Mitchell v. Barker (1918) 24 C.L.R. 365, 367, Griffith C.J. said‘ It may be that a distinction may some day be drawn between Territories which have andthose which have not formed part of the Commonwealth’. In Spratt v. Hermes (1965) 39 A.L.J.R. 368, the High Court rejected this view and held that there was no relevant legal distinction between internal and external Territories.

3 (1958) 99 C.L.R. 132.

4 (1965) 39 A.L.J.R. 368.

5 (1913) 16 C.L.R. 315.

6 s. 55 provides as follows–‘ 55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.’

7 (1913) 16 C.L.R. 315, 329.

8 Ibid. 335.

9 (1915) 19 C.L.R. 629.

10 Ibid. 635.

11 Ibid. 638. It was pointed out by Evatt J., in Ffrost v. Stevenson (1937)58 C.L.R. 528, 592 that section 80 itself contemplates that a trial might take place outside a State. The concluding words of the section are ‘ if the offence was not com- mitted within any State the trial shall be held at such place or places as the Parliament prescribes’. See also Cowen, Federal Jurisdiction in Australia (1959) 128.

12 (1926) 37 C.L.R. 432.

13 (1921) 29 C.L.R. 257.

14 In Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 C.L.R. 582, 585, Dixon J. said‘ It thus appears that three of the six members of the Court who took part in the decision of Porter v. TheKing; ex parte Yee treated s. 122 as insufficient to empower the Legislature to invest the High Court with original jurisdiction in respect of a Territory’. In Spratt v. Hermes the High Court again seemed evenly divided on this question.

15 (1946) 71 C.L.R. 29.

16 Ibid. 62. It was for similar reasons, among others, that Knox C.J. and Gavan Duffy J. dissented in Porter's case. ‘We think that a power to make laws for the government of the Territory does not include a powerto impose duties on persons or organisations not within the Territory …’ In the A.N.A. case Dixon J. (at 84) after referring to the sort of approach taken by Latham C.J. said ‘I think that the decision in Porter's case tends in the contrary direction ’.

17 (1957) 95 C.L.R. 529.

18 Ibid. 545.

19 (1951) 82 C.L.R. 188.

20 s. 75 (iii.) gives the High Court original jurisdiction in all matters‘ In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’.

21 See, in particular, Derham, ‘Suits Against the Commonwealth, arising in the Territories’ (1953) 2 U of QueenslandL.J. 93 and a reply by Cowen, Federal Jurisdiction in Australia, (1959) 142.

22 (1958) 99 C.L.R. 132.

23 (1946) 71 C.L.R. 29, 85.

24 (1958) 99 C.L.R. 132, 141.

25 Ibid. 142.

26 (1965) 39 A.L.J.R. 368.

27 Emphasis added.

28 (1929) 42 C.L.R. 582, 585.

29 This is the view advocated by J. Q. Ewens in ‘ Where is the Seat of Government ‘?’ (1952) 25 A.L.J. 532. See also Cowen, Federal Jurisdiction in Australia p. 148, for the opposing view. The judges refused to discuss in detail the meaning and extent of the seat of government power.

30 It will be recalled that in Porter's case three judges out of six were of the opinion. that original jurisdiction could not be conferred on the High Court under s. 122; also in Waters v. The Commonwealth, Fullagar J. felt constrained to hold, in accordance with the view he held of Bernasconi, that Chapter III itself did not confer any original jurisdiction on the High Court in respect of acts arising in the Territories.

31 (1918) 25 C.L.R. 434.

32 (1928) 41 C.L.R. 128.

33 (1938) 59 C.L.R. 556.

3 (1965) 39 A.L.J.R. 368, 373.

35 Ibid.

36 Ibid. 383.

37 (1958) 99 C.L.R. 132, 142-3.

38 (1965) 39 A.L.J.R. 368, 378.

39 Ibid. 376.

40 Ibid. 386.

41 Ibid. 374.

42 Ibid. 379.

43 Ibid. 386.

44 Ibid. 383.

4 (1963) 5 F.L.R. 432. See note by T. J. Higgins in 1 F.L. Rev. 146.

46 (1965) A.L.J.R. 368, 371.

47 Ibid. Emphasis added.

48 See, for example, the Crimes (Aircraft) Act 1963, s. 22.

49 (1965) A.L.J.R. 368, 379. Emphasis added.