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Section 122 of the Constitution: “A Disparate and Non-Federal” Power?

Published online by Cambridge University Press:  24 January 2025

Christopher Horan
Christopher Horan*
Affiliation:
(University of Melbourne), Commonwealth Attorney-General's Department
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Extract

In recent years, the High Court has given increased attention to the nature and extent of constitutional limitations on Commonwealth legislative powers, both those limitations contained in express provisions and those implied from the text or structure of the Constitution. The issue inevitably arises as to the extent to which these limitations restrict the Commonwealth Parliament in the exercise of its power to make laws for the government of its territories under s 122 of the Constitution. Section 122 of the Constitution provides as follows:

  • The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Type
Research Article
Information
Federal Law Review , Volume 25 , Issue 1 , March 1997 , pp. 97 - 126
Copyright
Copyright © 1997 The Australian National University

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Footnotes

The views set out in this article are those of the author.

References

1 Territory laws are involved in several proceedings currently before the High Court in which arguments to develop or extend constitutional rights and freedoms have been raised. These include an action based on the invalidity of laws in the Northern Territory (since repealed) which provided for the removal of Aboriginal children from their families earlier this century (Kruger v The Commonwealth); and a challenge to the proclamation of a national park in the Northern Territory and its effect on mining leases (Newcrest (WA) Ltd v The Commonwealth). The Court recently adjourned an application for special leave to appeal from a decision dismissing a challenge to the validity of a Northern Territory statute providing for the legalisation of voluntary euthanasia - Wake v Northern Territory (1996) 109 NTR 1 - pending consideration by the Commonwealth Parliament of legislation to over-ride the Territory statute.

2 Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529 at 545 (Privy Council).

3 Svikart v Stewart (1994) 181 CLR 548 at 563 per Mason CJ, Deane, Dawson and McHugh JJ;see also ibid at 572 and 574-575 per Toohey J.

4 See L Zines, '"Laws for the Government of any Territory': Section 122 of the Constitution” (1966) 2 FL Rev 72 at 90-91.

5 (1926) 37 CLR 432 at 438-439.

6 (1965) 114 CLR 226 at 259; see also Barwick CJ in Capital TV and Appliances v Falconer (1971) 125 CLR 591 at 598 and 600. In both cases, the approach taken was in the context of whether a territory court which enforced the law was exercising “the judicial power of the Commonwealth”, and was influenced by a view that the enforcement by a territory court of a law enacted -under the legislative powers contained in s 51 would be an exercise of federal judicial power. See further the discussion below under the heading “The territories and judicial power”.

7 See in particular Buchanan v The Commonwealth (1913) 16 CLR 315 at 330 per Barton ACJ, at 335 per Isaacs J; R v Bernasconi (1915) 19 CLR 629 at 637 per Isaacs J; Porter v The King; ex parte Chin Man Yee (1926) 37 CLR 432 at 441 per Isaacs J, at 448 per Rich J.

8 See Spratt v Hermes (1965) 114 CLR 226 at 247 per Barwick CJ, at 269-270 per Menzies J;Lamshed v Lake (1958) 99 CLR 132 at 142-143 per Dixon CJ, at 151 per Williams J; Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 79 per Starke J; Berwick v Gray (1976) 133 CLR 603 at 605 per Barwick CJ, at 608 per Mason J, with whom McTiernan and Murphy JJ agreed; cf Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 274-275 per Brennan, Deane and Toohey JJ, at 286 per Gaudron J.

9 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 274-275 per Brennan, Deane and Toohey JJ, at 286 per Gaudron J.

10 Berwick v Gray (1976) 133 CLR 603 at 605 per Barwick CJ, at 608 per Mason J, with whom McTiernan and Murphy JJ agreed. Norfolk Island did not form part of the State of New South Wales at the time of federation, although it was governed by the Governor of New South Wales. Consequently, for the purposes of s 122 the islands became a Commonwealth territory upon being placed by the King under the authority of the Commonwealth by an Order-in-Council made under Imperial legislation, rather than being surrendered by a State to the Commonwealth: see the Preamble to the Norfolk Island Act 1979 (Cth); Newbery v The Queen (1965) 7 FLR 34 at 35-39; J Q Ewens, “Norfolk Island as Part of the Commonwealth” (1980) 54 ALJ 68. However, Gaudron J may take a contrary view on this issue, regarding external territories as not part of the “geographical area” of the Commonwealth: Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 285-289.

11 See Jolley v Mainka (1933) 49 CLR 242; Ffrost v Stevenson (1937) 58 CLR 528; Fishwick v Cleland (1960) 106 CLR 186.

12 (1958) 99 CLR 132 at 143, at 151 per Williams J.

13 (1965) 114 CLR 226 at 270-271.

14 (1976) 133 CLR 603.

15 (1976) 133 CLR 603 at 607-608 and 611.

16 P E Nygh, “Federal and Territorial Aspects of Federal Legislative Power over the Territories: A Comparative Study” (1963) 37 ALJ at 73-74.

17 It should be noted, however, that a law for the government of a territory under s 122 is nevertheless “a law of the Commonwealth” which has force wherever the jurisdiction of the Commonwealth extends: see Lamshed v Lake (1958) 99 CLR 132.

18 For examples of statutes which expressly reveal an intention to rely on the territories power for additional operation, see the Trade Practices Act 1974, s 6(2)(a)(iii), (b)(iii) and (c)(iii); Australian Film Commission Act 1975, s 5(4)(b) and (f); Federal Airports Corporation Act 1986, s 7(1)(b); Australian Nuclear Science and Technology Organisation Act 1987, s 5(5)(d) and (f).

19 (1965) 114 CLR 226 at 278. This passage was endorsed by Gaudron J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 248 at 221-222.

20 (1992) 177 CLR 248 at 223-224.

21 See Buchanan v The Commonwealth (1913) 16 CLR 315, which held that laws enacted under s 122 need not comply with the requirements prescribed by s 55.

22 See Teori Tau v The Commonwealth (1969) 119 CLR 564, which held that the power conferred bys 122 is not qualified bys 51(xxxi).

23 Norfolk Island Act 1979, s 18(1); .Coral Sea Islands Act 1969, s 6(1); Australian Antarctic Territory Act 1954, s 8(1); Heard Island and McDonald Islands Act 1953, s 7.

24 Christmas Island Act 1958, s 8E; Cocos (Keeling) Islands Act 1955, s 8E; Ashmore and Cartier Islands Acceptance Act 1933, s 8(1).

25 A proposition which is rebutted by the reasoning in Berwick v Gray (1976) 133 CLR 603.

26 See, for example, Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 285-289 per Gaudron J.

27 L Zines, above n 4 at 73-74.

28 The one exception to this is the decision in Waters v The Commonwealth (1951) 82 CLR 188, in which a single judge (Fullagar J) held that the High Court did not have original jurisdiction under s 75 where the acts giving rise to the proceedings occurred in a territory. This decision was overruled in Spratt v Hermes (1965) 114 CLR 226.

29 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, subjecting the territories power to s 90 of the Constitution (which provides that the Commonwealth Parliament shall have exclusive power to impose, inter alia, duties of customs and excise). Although this case involved the legislature of a self-governing territory, the decision means that s 90 at least limits the power of the Commonwealth Parliament under s 122 to confer on such a legislature the power to enact laws imposing duties of customs and excise.

30 (1913) 16 CLR 315.

31 See generally Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 662-679; see also Buchanan (1913) 16 CLR 315 at 328 per Barton ACJ; Resch v Federal Commissioner of Taxation (1942) 66 CLR 198 at 222-223 per DixonJ.

32 (1913) 16 CLR 315 at 327 per Barton ACJ, at 335 per Isaacs J.

33 Ibid at 328-330 per Barton ACJ, at 335 per Isaacs J.

34 Ibid at 329.

35 See Western Australia v The Commonwealth (The Native Title Act case) (1995) 183 CLR 373 at 482.

36 (1913) 16 CLR 315 at 329.

37 (1915) 19 CLR 629.

38 Ibid at 635.

39 Ibid at 637.

40 Ibid at 638.

41 (1945) 71 CLR 29.

42 Ibid at 84-85; see also at 79 per Starke J. Cf the contrary view at 62-63 per Latham CJ and at 102-103 per Williams J. Rich J relied on the combined operation of s 51(i) and s 122 to give support to the provisions: ibid at 71.

43 Ibid at 85.

44 (1958) 99 CLR 132.

45 See now Northern Territory (Self-Government) Act 1978 (Cth), s 49.

46 (1958) 99 CLR 132 at 141-146 per Dixon CJ, with whom Webb and Taylor JJ agreed, at 154 per Kitto J; McTiernan and Williams JJ each dissented, at 150-151.

47 Note that Griffith CJ had suggested to the contrary in R v Bernasconi (1915) 19 CLR at 635.In Spratt v Hermes, Barwick CJ regarded laws under s 122 as falling within the expression “law of the Commonwealth”: (1965) 114 CLR 226 at 246-247.

48 (1958) 99 CLR 132 at 143-144.

49 Ibid at 154. Note, however, that Kitto J appears to swing back towards the “disparate power theory” in his judgment in Spratt v Hermes (1965) 114 CLR 226.

50 (1958) 99 CLR 132 at 141.

51 (1976) 138 CLR 492.

52 Ibid at 514 per Stephen J, at 526 per Mason J. Contrast the approach to s 51(i), where this distinction has been significant in limiting the scope of the trade and commerce power, even in its “incidental” aspects. This is illustrated by the fact that a majority in Australian National Airlines Commission did not regard as valid the authorisation of intrastate transport services as incidental to the conduct of services between States (so as to fall within the scope of s 51(i)).

53 Ibid at 512.

54 (1965) 114 CLR 226.

55 See Union Steamship Co of Australia Pty Ltd (1988) 166 CLR 1 at 10; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 44 per Brennan J; Kable v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577 at 582 per Brennan CJ, at 587-590 per Dawson J. The “peace, order and good government” formula may, at least in the case of State legislatures,import a requirement for laws to possess a territorial nexus with the relevant jurisdiction: see Kable v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577 at 587 per Dawson J. However, this is in contrast to the position regarding Commonwealth legislative powers under s 51 of the Constitution: Polyukhovic v The Commonwealth (1991) 172 CLR 501 at 529-30 per Mason CJ, at 602-603 per Deane J, at 632 per Dawson J, at 695-696 per Gaudron J and at 713-714 per McHugh J (cf Brennan J at 550-551 and Toohey J at 654).

56 (1965) 114 CLR 226 at 241-242; see also his Honour's comments as to the distinction between “federal” and “non-federal” legislative powers in Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599.

57 (1976) 138 CLR 492 at 500.

58 See also Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599 (where Barwick CJ described the territories power as “not limited by subject matter”) and Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570 (where the Court described the territories power as “plenary in quality and unlimited and unqualified in point of subject-matter”).

59 See the discussion of the different approaches by Gaudron Jin Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 222-223.

60 (1958) 99 CLR 132 at 143; see also his Honour's earlier comments in Australian National Airways (1945) 71 CLR 29 at 84.

61 See Le Mesurier v O'Connor (1929) 42 CLR 481 at 497; Burton v Honan (1952) 86 CLR 169 at 177-178; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 26-27 per Mason CJ, at 85 per Dawson J, at 92-93 per Gaudron J, at 100 per McHugh J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 296 per Mason CJ, at 312 per Brennan J.

62 (1976) 138 CLR 492 at 521.

63 Ibid at 514-515; see also at 531 per Murphy J who said, “It is not easy to see how the'incidental power could expand the Territories power.”

64 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 30-31 per Mason CJ; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 296-298 per Mason CJ, at 317-322 per Brennan J, al 350-357 per Dawson J, at 375-378 per Toohey J;Leask v The Commonwealth (1996) 140 ALR 1.

65 (1965) 114 CLR 226 at 246.

66 Official Record of the Debates of the Australian Federal Convention,Third Session, Melbourne 1898 at 257.

67 (1965) 114 CLR 226 at 242.

68 (1958) 99 CLR 132 at 142-143. Among such provisions were ss 49 (powers and privileges ofl the Houses of Parliament), 116 (freedom of religion) and 120 (offences against laws of the, Commonwealth), as well as several of the powers in s 51 and 52.

69 (1976) 138 CLR 492 at 513.

70 (1992) 177 CLR 248 at 272 per Brennan, Deane and Toohey JJ, at 288 per Gaudron J.

71 (1969) 119 CLR 564; see also Gambotto v Resolute Samantha Ltd (1995) 131 ALR 263 at 266-267 per Gummow J. The decision in Teori Tau is being challenged in High Court proceedings concerning the effect on mining leases of the proclamation of Kakadu National Park in the Northern Territory; the matter (Newcrest Mining(WA)Ltd v Tht Commonwealth ) is currently awaiting decision by the High Court.

72 Kean v The Commonwealth (1963) 5 FLR 432 at 439-440.

73 (1969) 119 CLR at 570.

74 See, for example, Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 598, where Barwick CJ noted that this dichotomy or “duality” between federal and non-federal (territorial) judicial power is “so deeply entrenched that it ought not now to be overturned”.

75 (1965) 114CLR226.

76 (1951) 82 CLR 188. Note that Fullagar J expressly declined to consider whether or not the Parliament could by a law under s 122 confer original jurisdiction on the High Court in relation to a territory: see ibid at 190-191.

77 (1965) 114 CLR 226 at 241 per Barwick CJ, at 253 per Kitto J, at 264 per Taylor J, at 265-266 per Menzies J, at 278 per Windeyer J, at 280 per Owen J.

78 Ibid at 239-240 per Barwick CJ, at 257 per Kitto J, at 268-269 per Menzies J.

79 Ibid at 264-265 per Taylor J, at 277 per Windeyer J, at 280 per Owen J.

80 (1926) 37 CLR 432.

81 Note that the Northern Territory Supreme Court had not been constituted in accordance 'with s 72 of the Constitution, as the Judges of the Court did not have life tenure (as was, required bys 72 at that time): see (1926) 37 CLR 432 at 438, 440 and 446. The subsequent decision in Spratt v Hermes confirmed thats 72 does not apply to territory courts.

82 (1957) 95 CLR 529 at 545.

83 (1971) 125 CLR 591.

84 This is in contrast to the High Court's jurisdiction to hear appeals from State ?upreme' Courts, which is constitutionally entrenched by s 73. Although the Parliament can make exceptions to such jurisdiction, it cannot take away the jurisdiction in matters where an appeal to the Privy Council was available as at Federation.

85 Compare Re Tracey; ex parte Ryan (1989) 166 CLR 518, where the High Court held that the defence power contained ins 51(vi) of the Constitution supported the conferral of judicial power on military tribunals outside Chapter III and separate from “the judicial power of the Commonwealth”.

86 See the discussion in BP Australia Ltd v Amann Aviation Pty Ltd (1996) 137 ALR 447 at 464-466 and 492-493 (this decision is currently on appeal to the High Court). The authorities supporting the conferral by a law made under s 122 of non-federal judicial power on federal courts were referred to by Lockhart and Lindgren JJ in upholding a legislative scheme for the cross-vesting of jurisdiction which involved the conferral of State judicial power on federal courts. See also Re T (an infant) [1990] 1 Qd R 196 at 199.

87 BP Australia Ltd v Amann Aviation Pty Ltd (1996) 137 ALR 447 at 461-462 and 467 per Lockhart J, at 494 per Lindgren J;and compare Kable v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577. It is likely that the prohibition on the conferral of non-judicial functions or powers on federal courts will be more absolute than the restriction on the conferral of such functions or powers on State courts exercising federal jurisdiction.

88 (1971) 125 CLR 591 at 600 per Barwick CJ, at 602 per McTiernan J, 606 and 607-608 per Menzies J, at 609 per Windeyer J, at 613 per Owen J, at 622-623 per Walsh J, at 627 per Gibbs J; see also R v Porter; ex parte Chin Man Yee (1926) 37 CLR 432 at 440 per Isaacs J;Spratt v Hermes (1965) 114 CLR 226 at 264 per Taylor J.

89 (1971) 125 CLR 591 at 624.

90 (1965) 114 CLR 226 at 263.

91 Grace Bros Pty Ltd v Magistrates, Local Courts of New South Wales (1988) 84 ALR 492 at 498.

92 In addition to the passages quoted above, see Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 607-609 per Menzies J.

93 A contrary assumption, that the enforcement by a territory court of a law enacted under s 51 would be an exercise of federal judicial power, may have lain behind the efforts by some judges to regard all laws applying within a territory as deriving their authority solely from s 122: see Spratt v Hermes (1965) 114 CLR 226 at 259 per Kitto J; Capital TV and Appliances v Falconer (1971) 125 CLR 591 at 598 and 600 per Barwick CJ; and see generally the discussion of characterisation in the first part of this article.

94 Kable v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577 at 597 per Dawson J: “Federal law, of course, is binding on all courts whether exercising federal jurisdiction or not.” See also covering clause 5 of the Commonwealth Constitution.

95 Note that this question is central to some of the arguments raised in the Kruger case,involving a challenge to the laws under which Aboriginal children in the Northern Territory were removed from their families; at the time of writing, the High Court has not yet handed down its decision iri this case. The question is also relevant to a challenge brought against Northern Territory euthanasia laws, in relation to which an application fo special leave to appeal to the High Court has been adjourned.

96 R. v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254;Attorney-General v TheQueen (1957) 95 CLR 529 (Privy Council).

97 Of course, this does not prevent the judges of territory courts from being given uncle statute such security of tenure and remuneration.

98 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26-29 per Brennan, Deane and Dawson JJ;and see generally Kable v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577.

99 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 69-70 per McHugh J.

100 Leeth v The Commonwealth (1992) 174 CLR 455 at 486-487 per Deane and Toohey JJ,at 501- 503 per Gaudron J.

101 (1975) 134 CLR 201.

102 (1977) 139 CLR 585. As is pointed out in an article by Sir Arnold Bennett QC, the decision in this second challenge is interesting in that a 4-3 majority endorsed the view that s 122 did not authorise the creation of Territory Senators with voting rights, but two of those four judges felt constrained to follow the earlier decision in Western Australia v The Commonwealth and joined with the other three judges to uphold the legislation: Sir A Bennett, “The Territories Representation Case - Stare Decisis in Constitutional Cases” (1978) 52 ALJ 664.

103 (1992) 177 CLR 248.

104 Ibid at 279 per Brennan, Deane and Toohey JJ.

105 Ibid at 274-279 per Brennan, Deane and Toohey JJ.

106 Contrasts 51(iii) which requires Commonwealth bounties to be “uniform throughout the Commonwealth”. This would probably prevent a bounty limited to goods produced in or exported from a territory from being granted under this subsection, although s 122 itself arguably confers an independent and unlimited power to grant bounties: compare Teori Tau (1969) 119 CLR 564 at 570, but cfCapital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 289-290 per Gaudron J.

107 Buchanan v The Commonwealth (1913) 16 CLR 315 at 327 and 335;Berwick v. Gray (1976) 133 CLR 603 at 607 and 611.

108 Compare the decision in Allders International Pty Ltd v Commissioner of State Revenue (1996) 140 ALR 189, where a majority of the High Court concluded that s 52(i) contained a separate grant of legislative power to impose taxes with respect to Commonwealth places,and that this power was not subject to the limitation contained in the proviso to s 51(ii): ibid at 224-225 per McHugh, Gummow and Kirby JJ, with whose reasons Gaudron J expressed general agreement (at 211). Dawson J disagreed on this point (at 199-200), while Brennan CJ (at 193-194) and Toohey J (at 207) each left the question open.

109 See Lamshed v Lake (1958) 99 CLR 132 at 143-144 and 154.

110 Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 61 per Latham CJ, at 71-72 per Rich J, at 79 per Starke J, at 85-86 per Dixon J. In this case, the provisions in the legislation which placed restrictions on the conduct of inter-State airline services were in fact held by the Court to infringe s 92, and were consequently invalid (but severable from the provisions dealing with territorial airline services). Note that in theory s 92 may be capable of application to laws under s 122 to the extent that they place discriminatory and protectionist burdens on trade and commerce between States (eg, the application of territory laws to interstate trade and commerce passing through a territory).

111 In the case of the Northern Territory and the Australian Capital Territory, provisions of Commonwealth legislation provide that trade, commerce and intercourse between the Territory and the States shall be absolutely free: Northern Territory (Self-Government) Act 1978 (Cth), s 49; Australian Capital Territory (Self-Government) Act 1988 (Cth), s 69. Neither of these provisions imposes a restriction on Commonwealth legislative power, but each would override any inconsistent State or Territory legislation: see Lamshed v Lake (1958) 99 CLR 132 and, in relation to inconsistency between Territory and Commonwealth legislation, R v Kearney; ex parte Japanangka (1984) 158 CLR 395 at 418-419 per Brennan J. The provision in relation to the ACT is slightly different to that in relation to the NT: the former also covers trade, commerce and intercourse between the ACT and certain other territories (the Northern Territory, the Jervis Bay Territory, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands), and expressly provides that it does not bind the Commonwealth.

112 (1992) 177 CLR 248 at 276.

113 Ibid at 278-279. If the Commonwealth Parliament did not possess the power to impose territory excise duties, then presumably it could not delegate such a power.

114 See in particular (1992) 177 CLR 248 at 285 per Gaudron J. See also Deane Jin Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 at 164.

115 For example, the Norfolk Island Act 1979 (Cth) expressly envisages that the Territory might impose its own customs duties (see Item 2, Schedule 3), although some Commonwealth control can be exerted as this is a matter on which the Administrator is subject to instructions from the Commonwealth Minister rather than the Executive Council of Norfolk Island (ss 7(1)(b), (2) and (3); 21(2)(a) and (6)),

116 While, in the case of territories such as the Northern Territory, the Australian Capital Territory and Norfolk Island, the Commonwealth has established self-government regimes with a separate territory Crown and an independent representative legislature, such arrangements do not detract from the Commonwealth's power over such territories under s 122: Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 283;. GR Nicholson, “The Constitutional Status of the Self-Governing Northern Territory” (1985), 59 ALJ 698 at 701.

117 (1969) 119 CLR 564 at 570.

118 Ibid at 569.

119 (1945) 71 CLR 29 at 62. Note that this was a dissenting judgment.

120 Note, however, that the Legislative Assemblies in the Northern Territory, the Australian Capital Territory and Norfolk Island have not been given power to make laws for the acquisition of property otherwise than on just terms, thus distinguishing such legislatures from those of the States: see Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 50(1); Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 22, 23(1)(a); Norfolk Island Act 1979 (Cth), s 19(2)(a).

121 The absence of a constitutional separation of State judicial power was recently confirmed by the High Court in Kahle v Director of Public Prosecutions for New South Wales (1996) 138 ALR 577 at 582-583 per Brennan CJ, at 591-592 and 597 per Dawson J, at 603 per Toohey J, at 617 per McHugh J and at 639 and 643 per Gummow J. However, the majority in that case found that Chapter III of the Commonwealth Constitution precludes a State Parliament from conferring on a State court which has been invested with federal jurisdiction any non-judicial functions or powers which are incompatible with the exercise by that court of federal judicial power: ibid at 608 per Toohey J, at 612 per Gaudron J, at 617 and 622-623 per McHugh J, at 630-632 per Gummow J (Brennan CJ and Dawson J dissenting).

122 See the discussion above under the heading “A free trade area including the territories?”.

123 RD Lumb, “Constitutional Provisions Affecting Territories”, Appendix L to Australian Constitutional Convention 1974, Standing Committee B, Report to Executive Committee at 68. Another writer has concluded that “the residents of the Northern Territory remain deprived of the constitutional guarantees of most of the residents of Australia, such as they may be”: GR Nicholson, above n 116 at 708; see also G Nicholson, “Constitutionalism in the Northern Territory and Other Territories” (1992) 3 Public Law Review 50 at 55.

124 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 288; see also Svikart v Stewart (1995) 18] CLR 548 at 581.

125 One possible exception to this statement relates to the political rights of territory residents, a point noted by Gaudron J in Capital Duplicators who observed of the residents of internal territories that “their political rights differed from those of other Australians by reason of the different constitutional regime established bys 122”: (1992) 177 CLR 248 at 287; see also Snowdon v Dondas (1996) 139 ALR 475 at 483. The Constitution does not guarantee to residents of a territory the right to be represented in the Commonwealth Parliament, nor the right to vote in federal elections, nor any right to self-government at a territory level; all of these have been conferred by, and depend upon, legislation of the Commonwealth Parliament. And it was only in 1977 that territory electors became entitled to vote in referenda for constitutional amendment under s 128 of the Constitution (even then, territory electors are counted only as part of “all the electors voting” in the referendum,whereas in the States it may also be relevant whether a majority of electors voting in the relevant State approve the proposed law).

126 Australian Constitutional Convention 1974, Standing Committee B, Report to Executive Committee at 14-17.

127 Minutes of the Australian Constitutional Convention, 26 September 1975 at xxxvi-xl.

128 See Constitution Alteration (Rights and Freedoms) Bill 1988. The Bill was not approved by the necessary majorities at the referendum.

129 Lamshed v Lake (1958) 99 CLR 132 at 143 per Dixon CJ;Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570; Australian National Airlines Commission (1976) 138 CLR 492 at 513 per Stephen J; Queensland v The Commonwealth (1977) 139 CLR 585 at 611 per Murphy J; Attorney-General (Viet); ex rel Black v The Commonwealth (1980) 146 CLR 559 at 576 per Barwick CJ, at 621 per Murphy J, at 649 per Wilson J. On the applicability of s 116 to all Commonwealth legislative powers, see Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 123 per Latham CJ, at 156 per McTiernan J. Cf Kitto Jin Spratt v Hermes (1965) 114 CLR 226 at 250, expressing some doubts as to the applicability of s 116 to the territories. See also HT Gibbs, “Section 116 of the Constitution and the Territories of the Commonwealth” (1947) 20 ALJ 375; CL Pannam, “Section 116 and the Federal Territories” (1961) 35 ALJ 97.

130 (1996) 138 ALR 577.

131 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31;Re Australian Education Union; ex parte Victoria (1995) 184 CLR 188 at 231.

132 These issues are relevant in the context of proposed Commonwealth legislation to specifically override a statute enacted by the Northern Territory Legislative Assembly which legalises and regulates voluntary euthanasia.

133 Nationwide News Ltd v Wills (1992) 177 CLR 1;Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

134 Nationwide News (1992) 177 CLR 1 at 50-52 and 76-77;Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142-144, 157-158, 169, 217-218 and 234-235.

135 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142 per Mason CJ, at 215 per Gaudron J and at 168-169 per Deane and Toohey JJ. See also Nationwide News (1992) 177 CLR 1 at 75-76 per Deane and Gaudron JJ; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 232 per Mason CJ, Toohey and Gaudron JJ, at 257 per Deane J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122 per Mason CJ, Toohey and Gaudron JJ.

136 Nationwide News (1992) 177 CLR 1 at 52 per Brennan J, at 76 per Deane and Gaudron JJ;Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 235 per Brennan J, at 257 per Deane J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 155-156 per Brennan J, at 164-166 per Deane J.

137 This “qualification” may arise from the fact that the implication from the Commonwealth Constitution is designed to sustain representative democracy at the Commonwealth level: see G Camey, “The Implied Freedom of Political Discussion - Its Impact on State Constitutions” (1995) 23 F L Rev 180. However, it may be extremely difficult to place limits on the categories of matters which are potentially relevant to government at the Commonwealth level: see the authorities cited inn 135 above. One example of a limit being drawn is provided by Brennan J in Stephens who concluded that the publication of material as to the performance by members of a State Parliament of their official functions was “irrelevant to the government of the Commonwealth and is unaffected by the implication”: (1994) 182 CLR 211 at 235.

138 See generally Stephens v West Australian Newspapers (1994) 182 CLR 211.

139 Dawson J and McHugh J, in particular, have avoided the implication of any limitation from the general concept of representative democracy, preferring instead a narrower limitation in relation to federal elections derived more directly from ss 7 and 24: see Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 186-187 and , 227-233.

140 (1992) 177 CLR at 246.

141 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 176-177.

142 (1994) 182 CLR 104 at 164.

143 (1994) 182 CLR 104 at 156.

144 See G Carney, above n 137 at 202. This is comparable to the implication of a freedom of political communication from the entrenched provisions of a State Constitution: see Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.