(1997) 190 CLR 1 PDF
(1997) 190 CLR 1 PDF
lJETERlvllNED IN THE
Constil/ltimwl Lwv (Cthj --. Implied cOllstitutiOl/ti1 riRhts "-- Legal equality-
Freedom of movemenl and associalion - W!'>' Qllthorising removal and
detention of Aboriginal childrell,
Comtirutiono{ ww (Clh) - Extemal aJJuirs - Intemuliollul conv/'ntiml, -
Conlleclion between intemationa{ instrument and Commo/lwealth law-
Trear;! ratified by Ausrralia bur nOI givf/1 effect hv leRis{atioll
Com-ention on Prc-.'ention and Prmishmellt a/Crime oIGenocide.
2 HIGH COURT [1996-1997
THE
Freedom of mVl'emenf and association
CO""''''_ Per Brennan CJ. Leaving open the question of whether any at:tiuns
WEAlTH under the l.:hallcnged laws infringed the implied constitutional freedom of
communication with respect to government and political matters or, if
there were an implied cun~litulionllI freedom of movement and
association, the existence of the laller freedom would not have
invalidated any of the challenged laws.
Per Dawson 1. Leaving open the question of whether there W;J.~ ~n
implied constitutional freedom of movement and association which may
otherwise restrict Commonwealth legislative power, nothing in the
Constitution supported an implied constitutional right to or guarantee of
freedom of movement and association for political purposes which might
limit the powers conferred by s 122.
Per Toohey J. Section 122 of the Constitution is confined by the
implied constitutional freedom of political communication and by an
implied constitutional freedom of movement and association which
(seinhle) is its corollary. The validity of the Ordinance depends upon the
relevant provisions not bcing disproportionate to what was reasonably
necessary for the protection and preservation of the Aboriginal people of
the Northern Territory, alternatively, the law must be reasonably amI
appropriately adapted to serve a legitimate end. To apply the
proportionality test, standards and perccptions prcvaiJing at the lime of
the Ordinance must he considered.
Pcr Gaudron J. Freedom of political communication necessarily entails
freedom of association and movement. Hence those freedoms are implicit
in the Constitution and constrain the powers conferred by s 51. Funhcr,
because of the nature and scope of the freedom of political communi-
cation and the rcsponsibility thc Australian pcoplc bcar for thc
government of the territories through their members of parliament. s 122
is subject to both freedom of political communication amI the subsidiary
freedoms of movement and association. A law which has the purpose of
restricting either freedom is invalid. Sections 6 and 16 or the Ordinance
were couched in terms directly contrary to the freedoms or movement
and association, as was the power in s 67( I)(c). They could be valid only
if necessary for the allainment of an overriding public purpose or for the
satisfaction of a pressing social need. In the absence of assenion by thc
Commonwealth that the Ordinanl'e was necessary for the preservation or
protection of Aboriginal people, or any basis upon which su(;h an
assertion could he made out, s 6, in so far as it conferred authority to
take people into custody, and ss 16 and 67(1);) were at all times invalid.
Per McHugh J. The freedom of the "people of the C<Jmmonwealth"
and the "people of the States" from laws that prevent them from
associating with others, and from travelling, within and outside Australia,
for the purposes of the constitutionally prescribed system of government,
did not at the relevant time extend to the residents of the Northern
territory who had no part to play in the constitutionally prescribed system
of government.
Pcr Gummow J. There is no implied constitutional freedom of
association for political, cultural and familial purp<Jses. Even if such an
190CLRIJ OF AUSTRALIA 5
implied l:OTIstitutional freedom exists, th.e provisions of the Ordinance Il C OF !\
were Susl:cptihle or " construction which did not infringe any implied 1996-t9Y7
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KRUGER
government of the Northern Territory within s 122,
H COFA amend the 191R regulations and the 1933 regulations, s 67 of the
19%1997
Ahoriginals Ordinance. They also alleged that their removal and
KReCER detention, and, in the case of the sixth plaintiff In Kruger v The
THE
Commonwealth, the child of the sixth plaintiff, was in breach of the
COM""" constitutional rights, guarantees, immunities, freedoms and provisions
WEALTIl
pleaded, constituted wrongful imprisonment and deprivation of liberty,
and that each plaintiff had sutTered loss and damage for which he or
she was entitled to recover compensation from the Commonwealth.
The defendant pleaded that: (a) if the power conferred by s 122 of
the Constitution was at any material time restricted by any of the
constitutional freedoms pleaded by the plaintiffs. the Ordinance was
not contrary to any such freedom because it was enacted and amended
for the purpose of the protection of persons of the Aboriginal race, and
was capable of being reasonably considered or alternatively was
appropriate and adapted to the achievement of that purpose; (h) the
constitutional validity of the Ordinance fell to he considered hy
reference to the standards and perceptions prevailing at the time of its
enactment or operation and not hy reference to contemporary standards
and perceptions.
Brennan CJ reserved the questions for the consideration of the Full
Court in each proceeding that are set out at pp 176-180 post.
N H M Forsyth QC and R A Finkelstein QC, for the plaintiffs.
N H M Forsyth Qc' Sections 6 and 16 of the Aboriginals Ordinance
1918 (NT), together with reg 3 of the Regulations made under the
Aboriginals Ordinance 1918 and reg 6 of the Aboriginals Regulations
1933. made under s 67(1) of the Ordinance, provided for the arbitrary
removal and detention of "Aboriginals" and ""half-castes" by officers
of the Commonwealth employed in the administration of the Northern
Territory. With limited exceptions, involuntary detention is of its
nature punitive or penal (I) and is an exclusively judicial function (2).
The removal and detention powers conferred by the Ordinance and
regulations did not bear a welfare or protective character so that they
could fall within the exceptions. No judicial authority or other form of
due process was required for the exercise of the powers of removal
and detention, nor was there any requirement that they be exercised
judicially. Hence the Ordinance and regulations infringed the doctrine
of separation of powers. That doctrine applies to all laws made by the
Commonwealth Parliament. including those made under s 122 of the
Constitution, and all laws passed under their authority. No decision on
(I) Chu KhenK Lim " Minis/afilr lmmiXrtlllOn (1992) 176 CLR I m 27-28.
(2) Chu KhenK Lim v Minister for lmmiRY<l/io/1 (1992) 176 CLR I at 27, 28-29:
Willil1ms \. The Queen (986) 161 CLR 278; Blackslone. Commenume.l, 17th cd
(1830), Bk I, pp 136-137.
190 CLR II OF AUSTRALIA 9
the point requires a different conclusion. The proposition that Ch III HCOFA
has no application to the territories (3) is too broad, and is not required
by the cases in which it has been hdd that Territory courts created
pursuant to s 122 arc not federal courts (4) and that those courts are
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KRUGER
not courts exercising federal jurisdiction (5) for the purposes of 55 71, T",
72 or 73 or courts exercising the judicial power of the Common- C"M"""
W'EALTIJ
wealth (6). The internal territories at least (7) fonn an integral part of
the Commonwealth (8) and s 122 should not be read as if disjoined
from the rest of the Constitution (9). The application of the separation
of powers 10 s 122 laws may be achieved in three ways: by overruling
decisions that Territory courts are not Ch III courts; by holding that
Territory courts are Ch III courts for purposes other than those the
subject of Ihe decisions; or by holding that the separation of powers in
its application to s 122 arises from provisions of the Constitution other
than Ch III, such as ss 1 and 61 (0).
The common law doctrine of legal equality gained constitutional
status at Federation conferring on all Australian citizens a right to
equality before and under, and equal protection of, Commonweahh
laws, and laws made under their authority (11). The existence of the
constitutional doctrine may be implied from the nature of the
Constitution as a compact to "unite in one indissoluble Federal
Commonwealth" (12), which brought into existence one nation (13),
as well as the unitary nature of Australian law (14), and is inherent in
H COF A the common citizenship of the Australian people (15). There are
19%.1997
examples in international jurisprudence of the application of the
](RUGE~ principle of legal equality which are appropriate guides for the
Australian constitutional doctrine (16). Differential treatment, other
'"'
COMMnN-
than to effect a compelling governmental interest (17), or otherwise by
WEALTll reference to considerations reasonably capable of being seen as
providing a rational and relevant basis for discriminatory treat-
ment (18), offend the doctrine. No relevant ditference between
Aboriginal, half-caste and white persons, children or adults, is
advanced which could justify the discrimination against the members
of the fonner racial groups effected by and under the Aboriginals
Ordinance. Any argument that the welfare and protection of
Aboriginal or half-caste people provided a compelling justification for
the removal and detention provisions of the Ordinance and regulations
is insupportable in the light of their tenns and of other provisions of
the legislation, It is relevant to have regard to general historical and
archival material such as administrators' reports, letters from the
administrator of the Territory to the Minister for the Interior, letters
from the Prime Minister and other statements of government policy to
understand the purpose for which the Ordinance was made, continued
and maintained.
There is a constitutional right to, and immunity from legislative and
executive restrictions on, freedom of movement and association for
political, cultural and familial purposes. A constitutional guarantee of
freedom of movement, at least between the States, was recognised in
R v Smithers: Ex parte Benson (19) and a constitutional freedom of
access to the seat of government was identified in Pioneer Express Pry
Ltd v Hotchkiss (20). In the United States a general implied right of
freedom of movement has been developed (21) from implied freedoms
to travel to the scat of government and have free access to
seaports (22) and to pass freely from State to State (23). There is
suppon in Australian cases for a similar extension of the freedom (24). HCrlFA
Funhcr, freedoms of movement and association arc corollaries of
implied conslitutional freedom of political communication, as the
United States and Canadian decisions show. In the United States an
-,
1996[997
KRL'uER
TilE
implied general freedom of association has been derived from the CO>iMON-
First (25) and Fourteenth (26) Amendments to the Constitution, as a WEALTH
(24) Blick r Bllwme (1976) 135 CLR 110 at 137; McGraw-Hind., (Au,'1) Pry Lid"
Smith (1979) 144 CLR 633 at 670; Alisefl Trl1ll.~pllrr fndllJlries (Operations) Pty
Ltd" The Commollwel1lth (1977) 139 CLR 54 al 87-88; Miller" TCN Clulllllel 9
Pry Lid (1986) 161 CLR 557 at 581-583; Uebergang r AustralilJfi Wheal Bmud
(l980) 145 CLR 266 at 31L Ausfraliun Cifl'ilill Tele\'I"i"" PlY Lid r The
Comnumweullh (1992) 177 CLR 106 at212: cf Cole v Wlliljield(1988) 165 CLR
360
(25) Gibsoll \. Flurida ugi.>!ulive fm'e.rligmion Commillee (1963) 372 US 539;
Roberts. Acting Commis.<ioll. Minllnota Def'<lrIment or Human Righl.l v United
StUll'S laveen (1984) 468 US 609.
(26) Gihson v Florida ugisluthe lllvnfigUlion COlf/millee (I963) 372 US 539:
NllIio1l<.d Assodalion for Adrunceme/ll (!r Colored People \' AlablJma (1958) 357
US 449: Bates eI ul \' Cir)' of Little Rock (1960) 361 US 516,
(27) Healy I" lame.' (1972) 40R US 169 at 181
(28) Alhertll UniOIl of Provillcial Employees \' Al/omeyGeneral (Alberta) [1987J
lSCR313.
(29) Tuylor r NI'l'; Zealalld Poultry Boord [1984J 1 NZLR 394 at 398.
(30) (1608) 8 Co Rep IUb at I 18a [77 ER 646 at 682J.
12 HIGH COURT [1996-1997
-,
1996-1997
KRUOER
parliamentary supremacy has declined (32). The fundamental rights
doctrine has expressly been left open by the High Court (33). Ultimate
sovereignty lies in the hands of the Australian people (34) and it must
THE
COMMON_
be assumed that if they had wished to confer on the Parliament the
"'EM,TII power to override fundamental rights and common law liberties they
would have given such authorisation in clear and unequivocal
tenns (35). It is an accepted canon of statutory construction that
Parliament will be presumed not to have intended to abrogate
fundamental human rights and freedoms (36); this principle should
extend to interpretation of the Constitution (37). The Aborif;inuls
Ordinance provided for and authorised the deprivation of Ahongmals
and half-castes in the Northern Territory of the most basic of
freedoms; the progenitors of the constitutional compact can never
mtcnded Parliament to have power to enact such a law. Further, the
acts of the Commonwealth authorised by and carried out under the
Ordinance constituted genocide within both the treaty (38) and HCorA
1996-1997
customary (39) meanings of the term. The prohibition on genocide has
at all material times been a rule of jus cogens and an obligation erga
omnes. Principles of international law may be resorted to in
TilE
interpreting municipal legislation and the powers of the executive (40); Cn,t.'10N-
a similar approach should be taken to constitutional interpretation. WEALTH
(45) ClIUI'ch u! rlie Nell" [-"min I' Commis.<loi1er of l'arroll Tax IVicli (1983) 154 CLR
120 a1 151. Ah"riKiml! '.p/.("I Ri/.(hls Movn>wIlI 1m: \. Sowh A".rlralia (the
Hindmanh '.llaml C,-,e) (1995) fJ4 SASR 55], Milirrpum v Nabalw Ply LTd
(1971) 17FLR 141 at ]67
(461 Adelaide Co of Jehovah's Wilrwsses IIIC V The Cm/llllmnveol1i1 (1943) 67 CLR 116
at 124: Ch"rch 0( Iile New Faith" Cummis,<iollu of Pilyroll Tax (I/iet) II~lU) 154
CLR ]20alI30.
(47) Adelaide Co of Jehowh's WilrleSSeS IIIC \' Tile Cml/llwllweo{lilIIY43) 67 CLR 116
~l 156; Church ojlhe New Fairh v Cmnmi<.<irmer (~! Payroll T,n (I/iet) (1983) 154
CLR 120al135.
(c1-8) C,1i1lilJe \. l1w Commonweallh (199c1-) ]82 CLR 272 at 387-388; Nmi"n",ide .""",.,.'
Ply Ud v Will", (1992) 177 CU{ 1 at 95; Illlomel'-(;etJeral (Viet); Ex rei Blad ,.
Tile Commonweallh (l981) ]46 CLR 559 at 615616,
(49) l.wmhed v wh (1958) 99 CLR 132 m 143: Teori T"" .' Ti,e Comn"''''realth
(1969) 119 CLR 564 at 570; Mromey-Gelleral (Vicn, I:;x rei BI"ck \ The
Commonwealth (1981) 146 CLR 559 at 619 (cf at 593); Adelaide Co of .leho""h '.I
Wimesus fnc v Tile Commonwealth (1943) 67 CLR 116 al 123,
(50) ,hmm!i(lll CUl'iwl Televi.<i'''' Ply Ltd v Tile Com""",wetdlh (1992) 177 CLR 106
al 176-177, 215':216 cf at 246: Tlleoplw/lou.< \' Herald & WeeklY nmes Ud (1994)
llCCLR 104alI40-142, 155-156.164.
(5]) cf Bueh"''''n v The C"mmO/Meallil (1913) 16 CLR 315,
190 CLR 11 OF AUSTRALIA 15
were part of South Australia and were therefore part of the one H COF A
19%-1997
indissoluble federal Commonwealth then created. At least hetween
1901 and 1911, when the Territory was surrendered to the KRVGER
Commonwealth, the people of the Territory had the benefit of s 116
THE
and any other freedoms implied in the Constitution. They did lose the COMMON-
benefit of those rights or freedoms in 1911. The people of the "'"AUH
Territory have always been part of the Commonwealth (52), and each
freedom pleaded, express or implied, must be taken to .mandate a
situation for the whole of the Commonwe:llth" (53). [He also referred
to Romney "II United States (54) and Dred Ii SCOtT Sanford (55).]
The defence pleads that the Aboriginal Ordinance was capahle of
being reasonably considered to he appropriate and adapted to the
achievement of the purpose of the law, namely, the protection and
preservation of persons of the Aboriginal race. Proportionality will not
assist to the extent that the Ordinance infringes the separation of
powers or intrudes upon fundamental rights and liherties which arc
beyond legislative reach. It may be accepted that the Constitution is a
living instrument which may be construed and applied to changing
facts and circumstances (56). To some extent, the scope of
constitutional freedoms may depend upon contemporary conditions.
But this docs not mean that the constitutional validity of the Ordinance
must be assessed by reference 10 societal perceptions and values which
prevailed in the Territory or the rest of the Commonwealth between
1918 and 1957. That is impermissible. Except to the extent that
perceptions may. in rare cases, form part of a relevant fact (as in, eg,
Theophanous v Herald & Week!), Times Ltd (57), they cannot affect a
law's constitutional validity.
The hreach by the defendant of the constitutional rights and
freedoms relied on by the plaintiffs in (a) enacting or authorising the
enactment of the Aboriginals Ordinunce; and (b) causing or
authorising activities carried out pursuant to the Ordinance, gave rise
to a personal right of action, independent of any common law cause of
action, in respect of which damages are recoverable. The concept of
{52) Covering cI 5; Theophamnl.> ,. Herald & Weekly Times Ltd (199-4) l82 CLR 104
at t64t65: Spmll v Herme.\ ([965) tl4 CLR 226 til 246-247: UIIIISh<!d v Luke
(J958) 99 CLR 132 at 140, 142. 148.
(53) Capital DupliCillOrs Pry Lrd \' Ausrmlian ClJpirlJl Terrirory IN" I} (1992) 177
CLR 248 M288.
(54) (l889) 136 US I at 44.
(55) (1856) 19 How 39 at 449.
(56) TheophmlOus ~Hemld & Weekly Times Ltd (1994) [82 CLR 104 at 143144, 171,
172. 174. 197: Inglis Clark, Studies ill AII,<fmlilm Con.,tiwtiOflal l~ .... (1901).
pp 2122: Quick and GaITan, The Allnotilled CtJJlUitlUioli of the Austmlian
Cmn/1J(mlrealth (190J), p 301: Sl'mll ~ Hermes (1965) 114 CLR 226 at 272.
(57) (1994) 182 CLR 104.
16 HIGH COURT [[996-1997
H enF A personal rights is not unknown to the Constitution: see 55 116 (58),
1996-1997
~
117 (59), 84 (60). James v The Commonwealth (61) and similar cases
which held that a breach of s 92 will not give risc to a cause of action
,
KRnlER
were hased on a view of s 92 which is now outdated and they should
THE
COMMON
be reconsidered. The decisions on the implied constitutional freedom
WEALTH of political discussion leave open the question whether it is a source of
positive rights. A number of the judgments suggest that it does (62).
There are similar indications in the cases supporting the status as a
positive constitutional right of the guarantee of duc process of law
arising by virlue of the separation of powers (63), the doctrine of
equality beforc the law (64), the freedom of movement and associ-
ation (65); and the freedom of the religion under s 116 (66). In other
Jurisdictions, breaches of implied and exprcss constitutional rights
have bccn held to give rise to private rights to damages. In Kennedy v
Ireland (67), damages were awarded for a breach of an implied
constitutional right to privacy. In Ashby v While (68), Holt CJ held the
plaintiff had a right to vote in an election for a member of Parliament
and would be entitled to a remedy against a returning officer who
refused to admit his vote. In Maharaj v Attorney-General (Trinidad
and Tobago} {No 2] (69), the plaintiff, who had heen falsely
imprisoned, recovered damages for breach of constitutional rights. [He
also referred Iu Lord v Allison (70).1 In Simpson v Attomey-General
(NZ) (71), monetary compensation was awarded for a breach of the
(581 Adelaide Co or Jelwm!l's Wllilesses file I' "tlie COlllnlOlll<e<iflh (l'l-'l3) 67 CLR
116: ClIIJrcll of llie !'oIe'" Failli v COllllllis.<loner of Panoll Tax (Vin) (1983) 154
eLR 120,
(59) Sircer \. Queem/and 8uI A,,,,,'imIOll (19891 168 CLR 4(,1, Cilll/!!Je \. The
COllwlOm,ea/th (l9'l4) 182 CLR 272
(60) MeDo1lohi r Viuorhi (1937) 58 CLR 146: Pemberlof! \' The Comlllom,,,,,111t
(1933) 49 CLR 382, Flill/ l' Tlie Com/llo/lweallh (1932) 47 CLR 274_
(61) (939) 62 CLR 339.
(62) AlI'lrall,U/ Cap/wi Te/Hisi"n Ply '.ttl" The CO/ll/llo",.eafth (1992) 177 CLR 106
~t 144,227.235,240: TheophwltJlJ,1' .- Herold & Weeklv Times Ltd (l994) 18~
CLR 104 al206. 214 d at 167-168_
(6J) Slleet L' Queells/and Ear Association (1989) 168 CLR 461 at 521-522: Re TraLn;
Et parte Ryall (19H9) 166 CLR 518 Ul 574, 5~0, 581, PO/YUk/IO\'lcil v nle
COIIIII!ullweo!th (1991) 172 CLR 501 Ul 719: Vlcrorla I' AU.\Ira!ian Buifding
COlls/meliml t:lllplurees' alld Builders Lobourers' Federollull (982) 152 CLR 25
at 107-111
(64) Leeth,' Tire C",IIII/om.'caftil (t ')')21 t 74 CLR 455 Ul 4~5,
(65) R \' Smithers; Fx !'orte RellwJJl (l912) 16 CLR 99 al lOR, 109-110, 119: Elick \'
flavone (t976) t35 CLR ItO Ul 137: UeberganK l' Aus/ro!lurl Wlleat floard(I980)
145 CLR 266 at 311312,
(66) At/ome,--General (l,-'idJ. Ex rei Black ,- Tire Comm('"\t-eolth (1981) t-'l6 CLR 559
at 623,
(67) [1987] IR 587_
(68) (170,) 21.d Raym ')38[92 ER 126J_
(69) [1979] AC 385_
(701 (1986) 3 BCLR (2d1 300,
(711 [1994J -' ~ZLR 6(;7
190 CLR I] OF AUSTRALIA 17
HCor-A the COllrt (78), make this premise untenable. The Commonwealth ha.~
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not enacted an applicable limitation law. Cases which suggest that
KRUGE~ actions in 10ft in the original jurisdiction of the High Court are
governed by the limitation law of the cause as the limitation law of the
THE
CnMMO:<-
forum (79), based on s 56 or s 64 of the Judiciiol}' Act, proceed on a
WIlJ\LTIl false premise, as claims in tort against the Commonwealth can be
brought under s 39(2) of the Judiciary Act in courts which do not
exercise jurisdiction under s 56 and which adopt the same choice of
law principles as in actions between suhjects under s 79 (80). State
laws such as s 5 of the Chuice of Law (Limitatiun Periods) Act 1993
(Viet) which provide that, if lhe substantive law of another place is to
govern a claim before a court of the relevant State, a limitation law of
that place is to be regarded as part of the substantive law of that place
cannot be picked up withoul modification by s 79 of the Judiciary
Act (81).
G Griffith QC, Solicitor-General for the Commonwealth, and
S J Gage/a (with them M A Perry and C R Staker), for the defendant.
G Griffith QC. The removal and detention of Aboriginal children in
the circumstances envisaged by the Aburiginals Ordinance, though
contrary to contemporary standards of morality and social justice, was
not unconstitutionaL The terms of the Ordinance were premised on the
prevailing view that Aboriginal people as a class stood in need of
special care and assistance and were incapable of managing their
affairs in the same way as the population generally The intention of
the Ordinance was the care and protection of the Aboriginal people.
Section 7 which confers on the Chief Protector/Director the status of
legal guardian. reinforces what is implicit: the discretionary powers
under the protective provisions could not be exercised for a purpose
inconsistent with the welfare of the Aboriginal person concerned or the
Aboriginal people generally nor In any manner otherwise
-unconstitutiona1. [He referred to RuD' Ii Chambers (82).] The exercise
of those powers was subject to judicial review.
The power under s 122 of the Constitution is unlimited by reference
to specific subject matter (R3). It is no less expansive than the
legislative powers of the Imperial or State Parliaments. There is a
sufficient nexus between the Ordinance and the Northern Territory
bcc:ause it operates upon persons or things within the Territory. The
words "for the gO\iernment of any Territory" are not words of
OR} McKain r R W Miller &: Co (SA) Pry f.td (1991) 174 CLR J at 35,
(79) Sudl!e v Tile Commonwealth (1967) J l6 CLR 353: The Commo",n,,,lth ,- Mewell
(1994) 126ALR39l
(80) BreariliglOlIl' Godlenum (InS) 169 CLR 41
(81) C"mmi,moner of St",,,p DM/ies (NSW) \' Owens (No 2J (1953) 88 CLR 168,
(82) Unrcpmtcd: Supreme Court "rtlle J\;T (Kricwaldt J): 5 April 1956.
(83) Spratt" Herm!", (196'i) 114 CLR 226: Teorl Till! v Ti,e C"mm"nlH'alth (1969)
1\9 CLR 564.
190 CLR I] OF AUSTRALIA 19
limitation; they emphasise that the power encompasses the determi- HCOF A
nation of the means of government as well as the execution of its
functions. The validity of the Ordinance IS not tested by
proportionality. The grants of power under the Northern Terri/ory
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KRL'GER
TilE
(Administration) Act 1910 (Cth) and the Northern Australia Act 1926 Co~t."o~
(Cth) pursuant to which the Ordinance was made and amended contain l'iEALl1l
no relevant enabling purpose hy reference to which a test of
proportionality can be applied. Many provisions of the Constitution
have been held not to apply to s 122 - eg, s 55 (84), s 80 (85),
s 72 (86), s 73 (87), s 51(xxxi) (88), ss 7 and 24 (89), s 118 (90) and
s 52(i) (91). The fact that s 90 has been held to apply 10 s 122 (92)
does not provide a basis for assuming that other constitutional
limitations apply to it.
The Constitution is interpreted by its language and structure, and not
by reference to extrinsic matters such as "the nature of our society'
Implications must be securely based, and must be "logically or
practically necessary for the preservation of the integrity of thai
structure" (93). The drawing of analogies between the United States
Constitution and other constitutions incorporating a hill of rights and
the Australian which eschewed one are unhelpful in delennining the
implications from our Constitution. The assertion that its framers
deliherately chose to communicate intentions hy implication is
implausible. Acceptance of the argument that if the Australian people
had wished to confer on Parliament power to override fundamental
rights and common law liberties they would have done so in
unequivocal terms would involve a reversal of the manner in which the
Constitution has heen construed. Recent cases cited hy the
plaintiffs (94) rest on doubtful historical foundations. The principle of
statutory construction which presumes that, in the absence of a clear.
contrary intention. Parliament did not intend to derogate from
HeoF A fundamental common law rights or human rights does not apply to
1996-1997
~
construction of the Constitution itself. Further, the common law
KRUGER principles relied upon by the plaintiffs have not been shown to exist in
1900.
TIfE
C()r-t~10!'J
The requirement of the separation of judicial power in the
",MUll Constitution does restrict powers under s 122. Moreover, the impugned
provisions of the Ordinance do no! infringe any such requirement. The
implication of the separation of judicial power has been construed as a
limitation upon powers under s 51 (95). But Spratt 1/ Hermes (96) and
Capital TV & Appliances Ply Ltd v Falconer (97) show that ss 71. 72
and 73, from which the implication of the separation of powers arises,
do not apply to s 122. Leave should not be granted to reopen those
decisions (98). If it is, the settled doctrine should be maintained.
Section 71 vests the judicial power of the Commonwealth in
., federal" courts and courts exerclsmg "federal jurisdiction".
"Federal" relates to powers shared with the States only. Article IV,
s 3(2) of the United States Constitution, upon which s 122 was broadly
modelled, was never interpreted as requiring the separation of judicial
power in the territories (99). The separation of judicial power was not
an established feature of the constitutional position of the Australian
colontes before Federation nor of the States after Federation. Further,
the power conkrred by s 122 was designed to cover hoth internal and
external territories at various levels of development, the circumstances
of which may have been wholly inconsistent with the effective
maintenance of a separate judiciary. The judicial power has heen
validly conferred on bodics other than Ch III couns pursuant to
constitutional provisions outside Ch III. eg, s 49 (100) and
s 51(vi) (101). As a guarantce of due process, the separation of judicial
power is not absolute and unqualified.
The powers under the Ordinance were not judicial. Not all powcrs
of involuntary detention arc judicial, and the categories of non-
punitive, involuntary detention arc not closed (102). Whether a power
to detain persons ur take them into custody is punitive depends on
whether the custody can reasonably be capable of being seen as having
a legitimate, non-punitive object. and whether the power is reasonably
c:1pable of being seen as necess(lry for those purposes (103). It is
apparent from the Ordinance that the purpose of the relevant sections
was welfare and protection. They had no punitive object. Furthcr, they
did not go beyond what, by the standards of the time, waS reasonably He"F A
19%-1997
capable of being seen as necessary for the purpose of looking after the
welfare and protection of Aboriginal children. K"LGlR
No general right to legal equality in the sense of freedom from
TH~
discriminatory ,treatment requiring equality before and under. and
C<',".'1"k
equal protection of, Commonwealth law or laws made under the WEALTH
(109) Pio"eer t\pre.<.< Pry t.Ed" HoICilki,<s (1958) 101 CLR 5~6
(110) Memorial Ho,'piwl \ Maricopa Coumy (1974) -'115 US 250,
(111)(1912)16CLR99.
(l12) (1958) 101 CLR 536.
(11~) Al/omey,Genemt (\'in); Ex reI Blm'k ~ 111e Co",,,w1I,,-euII1l (1981) 146 CLR 559_
190CLR I] OF AUSTRALIA 23
interests of social muer (114). Differences in history anu application He OF A
1996-1997
mean that United States cases about the constitutional guarantee of
freedom of religion In the First Amendment do not assist in construing KRL'GER
s 116. ,
THE
Cases to date have acccpteu that neither express provisions in the CO),J.'10,,-
Constitution (115), nor implied freedoms, guarantees or immunities WEALTH
(114) /ldduide C" of Je!llJl'uh'y WimH.'n {nc " The COIIIIIIOlIWt'lilTh (1943) 67 CLR
116,
(It5) Jamp" '" The CommOfl\"l'li/I!I (1939) 62 CLR 339; Hiren!J(j Trlills{Jorl Ply Ud v
Vic/ori" (1937) 57 CLR 327; Blink '~fNSIV., The Cvmmo!J\l'calr/1 (I\.I4l\) 76 CLR
I; AIlIiIl Ranger & Co {'ry LTd \-' Co",,,,i,uioller for "'1m",- Tmllspo!"l (1955) '013
CLR l\J.
(tI6) C"nli/!e ,. The Commomwa!llT (1\.1<)4) 182 CLR 272 al 326-327: Theoplwf!ol/s,'
Hemld & Weekly Timp., Ud (1994) 182 CLR tlM at 168.
(] 17) }lJIliCS v The Commotl\,'pallh (1939) 62 CLR 339.
(118) (1995) 1l\5 CLR 307.
(119) Pork 011 Ho I' Milli.,ler FJI' ImmiXrmioJl alld t:rlmic i1!!i-lJr" (19R9) 167 CLR 637;
Clum v Milli.l'ler{(Jr ImmigrmiVII, Local Gm-ermnem and F:lh1lic Aflairs (19<)1) 31
FCR 29; DUliiop \ W{)lJllahm MIJ/llclj!ol Council [1<)82] AC 158,
(120) Warin " The C(II",,,,II)\<eollli (1938) .'i9 eLI{ 150: Magllire \' Simp.IOn (j 977) 139
CLI, 362; GeorgiaJi.< .- /lIISlrali<111 u"d O,,,rsem Teln:ommurliwtiom
Corf'ol'(1lion (19<)4) 17'1 CLR 297: Def'ur,' COlf[lIIlssiOlltr of Taxmion \' Richard
W'j/lt'r Ply LTd (199.'i) 183 CLR 168: .1sim;'" SIP"m 1'I,'uvigmiurl Co LTd,' The
ComJlW"",e(1!T11 (1<)56) 96 CLR 3'>7; The Common",,,,,lth \. Emns [)e,jki'l
{"d!l,mie" Ud (1986) 161 CLR 2'i4: Lf The Comm"fl ...."a/I!I " Nt", S"!lth \Vales
(1923) 32 CLR 200 at 216.
24 HIGH COURT [1996-1997
HeoF A Six Unknown Named Agents of the Federal Bureau of Narcotics (12])
1996-1997
cannot be brought against the Uniteu States or federal agencies hut
only against federal agents (122). Moreover, the qualified immunity
from suit enjoyed by federal agents in the Cnitcu Sta\i.:s (123) would
THE
O,M"O';. ensure that if an action such as this was brought there, it would fail on
WEALTH that ground. In Canada, it has been held that only rarely will an
mdividual remedy under the remedies provision of the Charfer of
Rights and Freedoms be permitled in conjunction with an action
seeking to have a statutory provision declared invalid (124).
Even jf the constitutional freedoms asserted by the plaintiffs eXIst,
and c:o:.istcd since Federation. it docs not follow that a law which
would infringe them now would have done so in the past. The
practical effect of both express (125) and implied (126) proVIsions of
the Constitution may change over time in the light of social and
political developments, The necessity of such an approach to imphed
constitutional rights or freedoms, because of the continuing evolution
of human rights (127). is compelling. The European Convention on
Human Rights must be interpreted in the light of "present-day
conditions" (12R). The same approach has been taken to bills of rights
in the United States (129) and Canada (130). Accordingly. the Court
must determine the applicablity of the constitutional rights asserted by
the plaintiffs to past events in the light of the standards and
perceptions at the time of the enactmenl or operation of the legislation
or of the relevant conduct. Further, none of the freedoms asserted can
be absolute; in dcteffilining the validity of the Ordinance to the extent
that it infringes any of those rights the Court must ascertain whether
its purpose serves an lOterest justifying derogation from the relevant
constitutional freedom and whether its proviSIOns arc reasonably
capable of being considered, or are. appropriate and adapted to the
achievement of that purpose. Those questions must be consideretl in
the light of standards and perceptions at the lime, The purpose of the
([36) Mdr'luis 0{ Cholmo"deley " Lurd Clinton (1820) 2 Jal: & W I [37 ER 'in]:
Monby IlJewicke (1857) 3 K & J 342 [69 ER 11401: Prete .. Al/omey-Geller<,1
(Vmario) (1993) 86 CCC (3d) 442,
(137) McClimock" The Cmlllf/olll1ealllr (1947) 75 CLR 1 at 19, 30: Au,~lralasia" Uniled
Sleam Na\'i~{/fioll Co Lid \. Shipping C01ilml BO{jrd (1945) 71 CLR sOg at 527:
Nelungaloo Ply LId I' The Commollweallh (1948) 75 CLR .495 at 505: Ne!ungal,,(!
Pry LId v The ComlilOtiwealih (19.'i2) 85 CLR 545 at 567s6g: Arthur Yale.< '" Co
Pry LId I' Vegela/>/e Seeds C(lmmitree (1945) 72 CLR 37 at 64
(138) (t995) 185 CLR 307,
(139) (1971) 403 US 388.
(140) Nixo" \. Fil~xerald (1982) 457 US 731, Chapell" IVaI/ace (198.1) 462 US 296:
Un/led Sillies \' Sla"ley (1987\ 483 US 669.
(141) BU,\'h \. Luea,' (1983) 462 US 367,
(t42) (t994) t 27 Law Ed 2d 308.
(143) Biven> v Six U"klll'''''' Named A~ellls (!t'the Federal Bureau of Narcotics (t 97tl
403 US 388: BI,sh" l.uca" (ln3) 462 US 367: Schweiker \' Chilicky (1988) 487
US 412.
190CLR I] OF AUSTRALIA 27
fault (144). A Bivens-type action is regarded as a tort claim (145) and H Co, A
1996-19')7
will allract the appropriate limitation period (146). Section 79 of the
Judiciary Act fills a void by picking up State law and treating it as KRUGE~
federal law. Even if it did not exist the same result woulrJ follow by
THE
virtue of s 108 of the Constitutioo. COMMON-
V.'EAlTH
R J Meadows QC, Solicitor-General for the State of Western
Australia, (with him R M Mitchell), for the Attorney-General for that
State, intervenmg in supp011 of the defendant. The legislative history
of the Aboriginals Ordinance demonstrates that its scope and purpose
were to provide for the welfare and protection of Ahoriginal people.
So much is apparent from the Aborigines Act 1905 (WA), and its 1897
predecessor, as well as the Ahoriginals Proteclion and the R!'srricrion
of Safe of Opium Act 1897 (Q) and the Northern Territory Aboriginafs
Act 1910 (SA) from whieh the relevant provisions of the Aborif:illals
Ordinance were derived. The provisions of the Ordinance which might
be said to authorise detention are not punitive and hence do not
amount to or authorise an exercise of judicial power (47). None of
the impugned proVIsions operates by reference to the past conduct of
the per;;on who may be detained, nor docs the Ordinance judge the
guilt of any person of a crime, or authorise the executive to do so as a
(.;ondition to the exercise of statutory powers; a central characteristic of
judicial power is therefore ahsent (148). Section 7 of the Ordinance
was not a Jaw provirJing for the detention of any adult citi/.en: hut for
the custody and guardianship of children in a manner similar to s 63F
of the Family I,aw Act 1975 (Oh) and s 35 of the Family ww Act
1975 (WA). Section 16 did not authorise the arhitrary removal of
Ahoriginal people to resen:es or the exercise of the power for punitive
purposes. It only authorised the exercise of the power for purposes
concerned with the welfarc of the Aboriginal person concerned. In any
event, the doctrine of the separation of powers docs not extend to the
Territories: III this respect, the position of people in the Territories is
essentially equivalent to that of people III the States (149).
There is no general requirement in the Constitution that Common-
(1 ~.'i) Thell[Jhanllus " Herold & Wed-Iv Times Uri (1994) 18~ CLR 104,
(15(,) AIISlr</li<l'1 Ci!>ilal Ielc<'isiol! f'ry L((I v lhe Cl!mr>l"m,'c~llh (I':N2) 177 CLK 106:
ThcophwWllS r Herold &: Weeklv TilliE,' Lid (1994) 182 CLK 104: ,ViIIilJllwide
,'...."',.,\. Ply Lui,' Will., (1992) 177 CLR 1 Stepheni' ,. \-reM Auslrolian Ne"".'!Hi[J''I'.'
Uri 11(92) 182 ell'. 21 1
(157) Anwlgamaurf SOc;'."I.\' or Fngilleers . Atlelaidp Steamship Co Ud (1920l 28 CLR
129.
(158) Hewn v Hnalll 119701 1 QI:l 357; rOlf/lIW" \' Ah'x</lu!cr (I n2) 150 eLI'. 615
Gillid v IVe.\"I ,."'{}Iff,lk and Wi,weI'h Area Hnillh AlIl"o!'ir;' 119861 AC I 12
30 HIGH COURT [1 \J96-1997
He OF A proper purposes and for the bona fide advancement of the chil
1996-1997
dreo (159). An abusive exercise of the power could be remedied hy
means of prerogative writs or the parens patriae Jurisdiction (160). The
doctrine of legal equality asserted by the plaintiffs would be
THo
Cm,,,()~
inconsistent with the doctrine of parliamentary supremacy anu would
\VEAITli require the courts to decide whether the discriminatory trcalment is fair
and adapted to its end. That has never been the province of the courts.
Moreover, nothing in the text of the Constitution requires the
principle (161).
The correct question IS whether the Ordinance operates to dimmish
representative government in the Commonwealth, not whether it
impinges on freedom of political communication. A general law such
as the Ordinance which authorises guanhanship of those in need of
protection does not have an ohvious aim of the prevention or
suppression of participation in political life, Nor is it ohvious that it
would have that effect, except as it may be reasonably necessary to
achieve that object of guardianship. Accordingly. it does not offend the
limitation. The reasoning which led to the identification of the freedom
of communication with respcct to puhlic affairs and political matters
must give rise to a freedom 10 approach a federal memher and the
Commonwealth Parliament (162) and a freedom to associate for
relevant purposes. In each case, the freedom is from legislative
interfcrcnce with the nghl. While the freedoms would extend to people
in the Territories, is no allegation establishes interference with them.
There are no common law freedoms so fundamental that laws madc by
the Parliamcnt cannot touch them (63). A common assumption or
how legislative power will be cxerciscd in a democracy cannot
properly form the hasis of a legal limitation upon power. Further, hoth
the race power (s 51 (xxvi)} and the aliens power (s 51 (xix}) were
included to permit the Commonwealth to legislate 10 discriminate
against as well as in favour of people of particular races and
backgrounds. The framers of the Constitution and most of the voters
who voted for its adoption must have mtended that Ihose powers could
so be exercised. No relcvant Implication preventing the enaetment of
discriminatory legislation can he drawn against this hackground. In
any event, the Ordinance established a protective regime and did not
(J59) R v GVIII<"U [1893]2 QB 2.12: Thomm.leI \' Th"ma,l:;el [18941 P 195; J v C [1970]
AC 668; Gillick v West ;V"r/i,/k wrJ lVi,,!;e,h Are" !leliith AI,lnIH'inlln61 AC
Itl: Secrelo".. Del'"nmenr 0( HealIh lmd Community Senil'e.< ,. l11'B and 5MB
(19921175 eLI< 118.
(160) Curse/din" ,'Director o11ht IJepllrtllltm o{Children's Sen-icn (1974) 133 CLf{
345: Fmmrai" v Ale.nll/ria (1982) 150 eLf.: 615; Secrewry, DeparTment o{ Ilealth
alld Community Sen'i,.", \' jlVB "ntf 5MB (t992) 175 eLI{ 218.
(l6t) Leelll rThe COllllllOtlWeolrli (1992) 174 eLf{ 45'i.
(162) R '" Smither,,; Ex pa/Te Benw" (1912) 16 eLR 99: L,IIII,flied" Lake (1')5~) <)')
CLR 132: P'mlen Lxpren I'ry Lid r HOlchkiss (l958) 10\ CLR 530,
(163) British Railways /Joardv l'idiIlI1974] AC 7fS
190CLR 1] OF AUSTRALIA 31
THE
beliefs. Further, given the limited effect and application of s 116, there CO."."ON-
is no need to imply a right to freedom of association for religious 'WBLTT-f
HCOfA law of Victoria, including its choice of law rules, in particular the
19961997
Choice o(Lmr (Limitation Periods) ACT 1993. The effect of that Act is
that an action in tort is not maintainahle if it would have been statute
barred in accordance with the lex loci. If that Act is nut applicable
Til" hecause of its rcfcn::ncc 10 "a Court of this State", the relevant
CO"fMO~
WE.,UII limitation perioJ to he applied hy virtue of s 79 of the judiciw)' Act is
found in the Limitation ofActions Act 1958 (Viet),
N H M Forsyth QC, in reply. Section 13( I) of the Administration
Act, which cmpowcn::u the Governor-General to make the Aboriginals
Ordinance, was in broad terms. To the extent that it authorised the
making uf the OnJinancc In tcnns heyond s 122, it is invalid, The
deeision in Lim (171) is an exception to the doctrine that the powcr or
detention is part or the judicial powcr, hut is shows that detention by
the executive is limited to compelling necessity, The legislature
cannot, by taking a prejudice against a group confer on itself the right
to depart from the long-estahlished principles mentioned in Lim, The
history of the Ordinance indicates that welfare and protection were
only pan of its purpose; the other part was control of Aboriginal
people, ami s 16 is directed to the latter purpose, Unlike the State
Children Act 1R95 (SA), which reqUIred the identification of particular
circumstances of need and the authorisation of a justice as a
precondition to the detention of a non-Aboriginal chihL the powers
under the Onlinancc applied to all Aboriginals and half-castes
irrespective of circumstances or or particular need for protection or
welfare,
R A Finkelstein Qc' following, Any limitation on or rcstnction the
entitlement of a person to bring an action or to ohtain relief m n.:spect
of a hreach of the Constitution must be derived from the Constitution,
In thc ahsence of an unambiguous provision to that effect. such a
limitation or restriction does not exist. The inapplicahility of statutory
time limitations to constitutional fights was recognised in relation to
the Canadian Charter of Righrs and Freedoms in Prete v Attorney-
General (Ollwrin) (172), Under Australian law, laches is a defence
only to equitable claims (173), The plaintiffs' elaims are constitutional.
In any event, where specific performance 01' an injunction IS refused
because of laches, equitahle damagcs may be awarded (174). If there is
an Implied eonstitutional limit requiring chums to he brought within a
reasonahle time, or somc other basis in equity for the Court to exercise
its discretion to refuse the remedies sought the phuntiffs have not
delayed unreasonably.
(171) Chu Kilelll' Lim r Mi'll.'/er FJr t"mlli;!"fiOJl (1992) 176 CLR 1
on) 0')\)3) 8(, CCC nJ) 442 al449
(173) Orr ,- Ford (1989) 167 CLR 3t (,
(17-'1-) St'Il/"r c- /"1""''''1 (I i\(,(,) LR 3 E'J 330, Brac,"",,11 A/,ple!>'- II 'J751 Ch elOiL
190 CLR 1] OF AUSTRALIA 33
KRl;OFR
31 July 1997
THE
C()M~J(}N
BRENNA:--i CJ. The plaintiffs are Aborigin<ll Australians. All but one
BTcnnan (J
of them were children of tender years living in the Northern Territory
when they were allegedly" "removed into <lnd detained and kept in the
care, custody and/or control" of the Chief Protector of Aborigines (or
of his successor in function, the Director of Native Affairs) "and
thereafter detained and kept away from his [or her] mother and family
in Aboriginal institutions <lnd/or reserves". The other plaintiff, Rosie
Napangardi McClary, is the mother of a child who, without the
mother's conscnt, allegedly suffered the samc fate as the other
plaintiffs. The plaintiffs seek, inter alia, a declaration that the
provisions of the Ordinances of the Northern Territory under which
these <ll1eged actions were taken were invalid and that the Acts of the
Commonwealth under which those provisions were enacted were
invalid in so far as thcy might be found to have authorised the
impugned provisions of the Ordinances.
The relevant provisions (175) arc to be found in ss 6, 7, 16 and 67
of the AhoriRinals Ordinance (the Ordinance) which commenced
operation on 13 June 1918. That Ordinance was made by the
Governor-General pursuant to powers conferred by s 7(3) of the
Northern Territory Acceptance Act 1910 (Cth) (the Acceptance Act)
and by s 13 of the Nm1hem Territory (Administration) Act 1910 (Oh)
(the AdministraTion Act). The Onlin;mee was "mended from time to
time by the Governor-General pursuant to the same statutory powers
or, in one instance, pursuant to powers conferred hy the NOrThern
Australia Act 1926 (Cth). In 1953. a further amendment was made to
the Ordinance by the Legislative Council of the Northern Territory
which had acquired the requisite powers under the Admmistration Act.
Nothing turns on the terms of the amendments made and it is
sufficient to set out the terms of the impugned provisions of the
Ordinance as they stood in 1918.
The Ordinance providcd:
"'6. (I) The Chief Protector shall be entitled at any time to
undertake thc carc, custody, or control of any Aboriginal or half"
caste, if, in his opinion it is necessary or desirahle in the interests of
Ihe Abof1gmal or halfcaste for him to do so, and for that purpose
(175) The litles of the OrdiniUlcc am] !h~ amending Onlin~n~e, ~nd of Ihe A~ts under
which they were purportedly made are sd nul in pillS 7-1~ of the ~mend"d
stalcment "r daim in Ihe fir,! adion and in pars 4') of Ihe amcnded -,Ialcmenl of
claim in (he second action.
34 HIGH COURT [1996-1997
KR\.'C,ER
[HE
husband who IS substantially of European origin or descent; or COMMON-
(d) for whom. in the opmion of the Chief Protector. WEALTH
(In) Regulations (Gener~1) lllldel' (he Abo,-igi,wl" O,-din",,,.-e 191R. S .'1 and Ihe
Aboriginal Regulations 19.n. S (,.
(179) S~heJule (0 Amending R"gulJt;ons of J OClQbcr t940.
36 HIGH COURT [ 1996-1997
-,
1'1%1997
KRl'GFR
undertaken. It is not a power to he exercised adversely 10 those
individual interests. And, as s 67 rCLjuircd the regulations made
thereunder to be "for the effectual cafl),jng out" of the Ordinance, a
THE
valid exercise of the powers conferred by the removal regulations
CO"""". would have to he intended to serve the mterests of the "Ahoriginals
wMLfll
and half-castes" to whom those regulations applied in any case in
Bronn"n CJ
which the power was helng c:u.Tciscd In pcrfonnancc of the function
of care, custody ur cuntroL The several paragraphs of s 67 indicate that
the regulations are to t:1cilitate the serving of the interests of the
""Aboriginals and half-castes" to whom the regulations might be
applied, The requirement prescribed by the removal regul<ltions that a
Protector report to the Chief Protector or Director thc reasons for
forwardmg Aboriginal or half-caste children to an Aboriginal
institution or school also suggests that the Chief Protector or DirectOl"
should supervise the Protectors' exercise of authority to ensure that the
duties of guardianship are properly discharged.
Of course. a power which is to be exercised in the interests of
another may be misused. Revelation of the ways in which the powers
conferred by the Ordinance were excrcised in many cases has
profoundly distressed the nation, but the susceptibility of a power to its
misuse IS not an indicium of its invalidity (80). It may be that in the
cases of the plaintiff children, the Chief Protector or the Director
formed an opinion about their interests which would not be acu::ptcd
today as a reasonable opinion having regard to contemponuy
community standards and the interests of those childrcn m being kept
together with their families. The practice of enforced separations IS
now seen to be unacceptable as a general policy. However, the
erroneous fom1ation of an opinion by the Chief Protector which
purported to enliven the exercise of the power conferred by s 6 or by
the removal regulations does not deny the validity of s 6 or of those
regulations, though it may deny the validity of the exercise of the
power (181).
Moreover, when a discretionary power is statutorily conferred on <l
reposItory. the power must be exercised reasonably, for the legislature
IS taken to mtend that the discretion be so exercised (182).
Reasonableness can be determined only by reference to the community
standards at the time of the exercise of the discrction and that must be
taken to he the legislative intention. Therefore, it would be erroneous
in point of law to hold that a step taken in purported exercise of a
11K.') Paragraph 2'1 of the amended stalement of cbim in th~ ftrst ;Jetio" and paragraph
21; "f Ih~ amended 'talcmcnt or dail1l in th~ '~c'(md aelio".
190 CLR 1] OF AUSTRALIA 39
(iii) it was contrary 10 an nnplicd constitutional right to and/or II Co.. A
1996-1997
guarantee of freedom of movement and association:
(iv) it was contrary to an implied constitutional right to freedom KReGER
from and/or immunity from any Jaw, purported law or
rHl
e;{ecutivc act: COM,"O~
A. providing for or having a purpose, the effect or the likely WEALTH
(188) Allomey-Gencral iV;"li. Ex rei Black " Tlte C"'l/lllOrlWe<llrh 119R I) 1--1.6 CLR 559
a1579. 615-616. 653
190 CLR I] OF AUSTRALIA 41
"The Parli<lment m<lY nmke l<lwS for the government of <lny He "F ,\
1996_1997
Territory surrem.lcred by any State to and accepted by the
Commonwealth, or of any Territory placed by the Queen under the KRl'~FR
authority of and accepted by the Commonwealth, or otherwise
THE
acquired by the Commonwealtb, and may allow the represenlation COMMO;>l-
of sueh Territory in either House of the Parliament to the extent and we.'LTH
(::'00) Cupllal DU/lllwliJr.\ PI." Uti \' AU<!l'aliati C"pilal 'I'ernu)l') (I Y92) 177 CLR NR
(201) (1%5) 114 CLR 226 at 247
(202) R ,. Kirl,y. Ex palll Bllilermakers' .""def), o/Au,wuli" (1956) 94 CLR 2';4 at 270,
(2(13) (10l5?) 015 CLR 52Y al 54';, [19';71 AC 288 Jt 320,
44 HIGH COURT ( 1996-1997
(2iYll R,' Ben"",.,.,,,,i (1915) 19 CLR 629 Jt 6.\7,63S: {'(iI'ler t' Ihe Kill!', r..' p,"'le Yee
(1')2(,) :n eLR 432 :II 44<),
(:20S) (1965) 1J4 CLR:226 at 250
C06} cf Harrison I>'lQOI\" lire COIIS/ili/lioll flt'llie CIlJi"""'IIl'l.'twh "I' AU.Ilraii". 2nd ~d
(191()J.p5~9.
190 CLR II OF AUSTRALIA 45
argument (207) that all laws of the Commonwcallh must accord He OF A
1996-1997
suhstantive equality to all people irrespective of race. In any event,
then.: is nothing in the text or structure of the Constitution v.'hich
purports so to restrict the power confcrn:u by s 122 as 10 reqUire
Te'
substantive equality in the treatment of all persons within the O,M:-tON.
Territory. Indeed, prior to 1967 (208), S 127 of the Constitution \VMLTlI
expressly discrimmated agmnst "Aboriginal natives" in the taking of
the census. The ground advanced by the plaintiffs in sub-par (ii) also Brenn'" (I
fails.
Sub-paragraph (iii) asserts the cxislcnn:: of "an implied
constitutional right to freedom of movement and association"
v.'hich restricts the scope of s 122. No such fight has hitherto been held
to be implied in the Constitution and no textual or structural
foundation for the implication has been demonstrated in this case. The
freedom contended for is advanced as a corollary of that freedom of
communication ahout government and political matters which is
implied in the Constitution, especially by reason of ss 7 and 24. But
the impugned provisions in this case were not directed to the impeding
of protected communications and, if action taken under those
provisions could have had that effect. the invalidity would strike at the
action taken, not at the provision which purported to authorise the
action.
Actions taken under the Ordinance or the removal regulations in the
interests of an Aboriginal ehild could not be attacked on the ground
that the interests of the child infnnged an Implied freedom or
movement or association. And If actions were taken under. for
example, s 16 of the Ordinance to achieve some other purpose and the
action had the effeet of impeding the freedom of communications
ahout government or political matters implied in the Constitution, a
question could arise as to the validity of the action. The discretion to
take action would be confined by the requirement not to impair the
freedom unreasonably or needlessly and lhe impugned provision
would be construed confonnably with the constitutional reLjuircment.
The constitutional requirement would not invalidate the impugned
provision, but would confine the power which it confers.
It follows that, whether or not some such implication as that
contended for in sub-par (iii) is to be found in the Constitution. its
existence would not have invalidated any of the provisions impugned
by the plaintiffs.
For these reasons, question I must be answered: No
(207) Based on Leerh " The C"m",o",ve"/th (1992) 174 CLR 4~5 at 486. per Deane and
Tooh~y JJ.
(208) Section 127 wa, repealed hy the'C,mstilmioll Allumi",) IAborigillu/sj 1')67,
46 HIGH COURT [1996-1997
-,
l~%-I'.m
K~l'GE~
In audition to seeking declarations or invalidity of the Acts,
On.linancc and regulations referred 10 In the amemJed statements of
Till]
claim, the plaintiffs seck damages for the removal and detention of the
CO.'1"OS- plaintiff children. Apart from any common law cause of action which
WEALTH may have accrued to the plaintiffs, they assert a right to damages by
reason of a breach of "the constitutional rights, guarantees.
Broll"a" CJ
Immunities, frccuOlns and provisions" referred to In the suh-
paragraphs which I have set out above. To raise the question whether a
cause of action arises by reason of such a breach. question 2 was
stated in the following terms:
"Docs the Constitution contain any right, guarantee, immunity,
freedom or provision as referred to in paragraph 29 of the Amended
Statement of Claim, a breach of which by -
(a) an officer of the Commonwealth; or
(b) a person acting for anu on hehalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort
or for hreach of contract) against the Commonwealth sounulllg III
uamagcs?' '
The Constitution creates no private rights enforceable dm;ctly by an
action for damages. It "is concerned with the powers and I"unctions of
government and the restraints upon their exercise", as Dixon J said of
s ':l2 in JllInes v The Commonwealth (209). The Constitution reveals no
intention to create a priv:lte right of action for damages for an allempt
to exceed the powers it confers or to ignore the restramts it Imposes.
The causes of action enforceahle hy awards of damages arc created by
the common law (including for this purpose the doctrines of equity)
supplemented by statutes which reveal an Illtention to create such a
cause of action for breach of its proVIsions. If a government docs or
omits to do anything which, under the general law, would expose it or
its servants or agents to a liahility in damages. an attempt to deny or to
escape that liability fails when justifiemion for the act done or
omission made depends on a statute or an action that is invalid for
want of constitutional support. In such a case, liability is not incurred
for breach of a constitutional right but by operation of the general law.
But if a government does or omits to do something the doing or
omission of which attracts no liability under the general lnw, no
liability in {.bmages for doing or omitting to do that thing is imposed
on the government by the Constitution.
It follows that no right of action distinct from a right of action in
lor! or for breach of contract arises hy reason of any hreach of the
protections claimed by the plaintiffs in the paragraphs of the respective
tHE
questions or one or other of them. The first t\.','o questions In the first
CO'IMON-
action are: WEAI,TII
(2111) See Kl"uger C' The Com",m"wIlIrIJ (I <)')5) 6') ALJR ~~5
50 HIGH COURT [1996-1997
the meaning of the Act of the Stale of South Australia in force in H COF A
19%-1997
the Northern Territory entitled The Srate Children Act 1895, or any
Act of that State or Ordinance amending or substituted for that Act.
(2) Every Protector shall, within his district, he the local guardian ,
KRU"ER
THE
of every such child within his district, and as such shall have and
C""MON-
may exercise such powers and duties as arc prescribed." WHLTH
Yl:ars ago docs nOl or itself [Jomt to the constitutional invalidity of that HCOF,'I
I ~Yh_l Y<J7
legislation and it is to the legal basis of the plaintiffs' claims that r
now must turn. The legal basis of those claims concerns the
constitutional validity of the provisions in issue, and docs not raise the
THE
question whcth~r the actions complained of were authorised by those OJ\'Mn~_
proVISIOns. \VE. LTII
Section 122
Section 122 of the Constitution provides:
. The Parliament may make laws for the government of any
Territory surrendered by any State to and accepted by the
Commonwealth, or of any Territory placed by the Queen under the
authority of and accepted by the Commonwealth, or otherwise
acquired by the Commonwealth, and may allow the representation
of such Territory in either House of the Parliament to the extent and
on the terms which it thinks fit."
The 1918 Ordinance was made under legislation which was reliant
upon s 122 for its validity. The plaintiffs claim that, to the extent that
it authorised the making of the 1918 Ordinance, or at least those parts
of it of which they complain, the legislation did not constitute alaI,','
"for the government of any Territory" within the meaning of s 122
and was invalid. The basis upon which they make that submission is
that for a law to be for the government of a Territory it must be
reasonahly capable of being seen as appropriate and adapteu to the enu
of governing the Territory. The plaintiffs argue that the 1918
Ordinance constituted an extraordinary intrusion upon fundamental
rights and common law liberties, exhibiting "such callous disregaru
for familial unity and cultural cohesion in the Aboriginal community"
that its purpose can only be seen as the arbitrary executive detention of
Aboriginal citizens and the cultural and physical extinguishment or
disintegration of that racial minority. The plaintiffs submit that such a
law cannot be seen as appropriate and auapted to the government of
the Northern Territory and for that n::ason is outside the scope of
s 122.
That submiSSIOn must be rejected. I have elsewhere expresseu my
view that no real assistance is to be gaineu by asking whether
legislation is appropriate and adapted to some end when testing its
validity under s 51 of the Constitution, at all events where a non-
purposive power unuer that section is involved (217). That test can
have even less application where the power III question is, like s 122. a
power to legislate for the government of a Tcrritory ami where, unlike
the powers conferred by s 51, the power is not confined by reference
to subject matter. In Tfori Tall Ii The Commonwealth (218) the Court
order to those given by s 51. That power IS not only plenary but is
unlimited by n::fercncc to subject matter. It is u complete power to
make laws for the peace, order and good government or thl:
Territory - an expression cundensed In S 122 to 'for the
government of the Territory'. This is as large and universal a power
of legislation as can be granted. It is non federal in charactcr In the
sense that the total legislative power to make laws to operate in and
for II Territory is not shared in any wise with the States."
And in Capital Duplicators Ptv Lid \' Australian Capital Terri
tory (221) Brennan, Deane and Toohey JJ descrihed the power as "no
less than the power which would have been conferred if the 'peace,
order and good government' formula had becn used". The result is
that "all that need be shown to support an exercise of the power is that
there should bc a sufficient nexus or connection between the law and
the Territory" (222). There can be no douht of the eXIstence of that
nexus or connection in this case.
It is true that in LOfllshed l' Lake (223) Dixon CJ dppears to have
thought that s 122 may be viewed as conferring a power to legislate
with respect to a suhjeet maller. He said that it "is a power given to
the national Parliament of Australia as such to make laws 'for'. thalls
to say 'with respect to', the government of the Territory" He
conlinUl:J: "The WOlds 'the government of any Territory' of course
describe the suhject maHer of the power." Perhaps DiXOn CJ was there
usmg the expression "suhject matter" in a different sense. If, as is
incontrovertible, the power of the Parliament to legislate under s 122 is
not conllned 10 particular heads as it IS under s 51, to speak of subject
matter in that context can only he to advert to the requirement or some
territorial nnus such as has heen said to exist in the case of a State
legislature which has power to legislate I"or the peace, order and good
government of the State (224). Nevertheless, it is unusual for the
legislative power of a State to be descrihed as a pO\ver with respect to
a suhject matter. namely, the State, amL setting to onc side such
K"'''"R
,
THE
Bem'id Ltd v Gray (225 j, il IS: CO,1W,-'-
WE"LTH
"a plenary power capahle of exercise in relation to Territories of
varying size and importance which arl: at different stages or political
and economic development. It is sufficiently \vide to enable the
passing of laws providing for the direct administration of a TelTitory
by the Australian Government without separate territorial adminis-
trative institutions yet on the other hand it is wide enough to
enable Parliament to endow a Territory with separate political,
representative and administrative institutions."
The Commonwealth Parliament is, with respect to the territories, a
completely sovereign legislature (226).
However, it seems clear that Dixon CJ had something clse in mind
when he spoke of the power under s 122 as heing a legislative power
with respect to a suhject matter. The view which Dixon CJ expressed
in Lamshed v Lake first appeared in Australian Nmianal Ainravs Pty
Ltd v The COlllmOf/wealth (227). There he indicated that in his opinion
s 122 extended heyond conferring power to make laws for the
government of a Territory as a geographical or local unit and conferred
power to legislate upon a national hasis with respect to territories. It
was in that sense that he viewed territories as the suhjeet matter of a
legislative power. apparently thinking that it was impossible 10 regard
the national Parliament as being confined, even in relation to a
Territory. to the making of laws with only a local apphcation. That IS
Why in the passage in wmshed v Lake to which r have already referred
he used, and placed emphasis upon, the term "national Parliament".
He did so in order 10 reject an argument thai the legislative function
which s 122 confers upon the Parliament is essentially that of a local
legislature in and for a Territory with a power territorial1y restricted to
the Territory. The latter ....as a view which had bl:cn accepted hy
Latham CJ and Williams J in Australian National Ainmys Ptl' Ltd v
The Commonwealth (228) amI was consonant with the earlier cases of
Buchanan r The Commonwealth (229) and R v Bernasconi (230). The
view expressed by Dixon CJ would seem, with respect, to beg the
question by referring to the Parliament in the context of s 122 as the
"national Parhament", for in speaking of the power to make laws for
IIC""A raises the question why, if it was intended to apply to them, full faith
-
1996-19n
,
KRUUER
and credit should not have been required to be accorded in the States
to the laws, etc, of the territories. The answer, upon the view expressed
by Dixon CL is that it was unnecessary because TerrilOry laws arc
TH~
C()M""~
national laws. But the more convincmg answer IS that the territOries do
WEALTH nut enter the province of Ch V which is, after all, headed "Thl:
States". A construction of s liS which required thm full faith and
D,w.\nn) credit bc given in the telTitoHes to Ihe laws, etc, of every Statl: woukl
rob that section of the mutuality or reciprocity it was obviously
intended to have, for on no construction could s 118 require that full
faith and credit be given in thc States to the laws. etc. of the
territories (240).
Similarly, s 109, which ueals with inconsistency bet,wen State and
Commonwealth laws, would appear to be uealing with inconslskncy
between State and federal laws and not to have in contemplation
inconsistency between State and Territory laws. And if, contrary to
Lamshed v Lake, Territory laws were confined 10 a territorial operation
there would be no more nel:d fur a s 109 In relation 10 TerrilOry laws
than there is need fur such a sl:ctioll to resolve connict bl:tween the
laws of different States,
Section 116
When one comes to s 116 different considerations apply. That
section provides:
"'The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, ur for prohibiting
the free exercise of any religion, and no religious test shall be
required as a qualification for any office or public trust under the
Commonwealth. "
Various views hllVl: been expressed about the character of s II () and its
application to the legislative power of the Commonwealth under
s 122 (241). However, there has been no real examination uf the
question or any attempt to reconcile the eXisting authorities, save
perhaps in the judgment of Gibbs J in Mrorney-Gellcral (Viet): Ex rei
H/ack v The Commo/!'Feallh (2421. Gibbs J expressed his duuhts.
notwithstanding dicta to the contrary, whether s 116 had any
application to laws made under s 122. He pointed out that the dicta are
(240l S.-:"Arlder.''''I'' !,','i,. AlldPrw/I Rwli" & TV F/y Lid (1965) 114 OJ, 20 al .,1. per
Killo J
(41) S.-:.-: Adelaide C" "r fe/JOwl> '.< ll'imesses Inc .' The COllilliotlWe<l!liI (I 'i4,,) ri7 CLR
II ri al 123. 156-157: LOrr/shed v I"'ke (19';1\) 99 CLR 1.,2 at 143: Sl'mll c' Ham",'
(1965) 114 CLR 226 at 250: T~ori Ta" \ 'rhe C"III/lIOII\.eol/1i ([%9) 119 f'LR
564 at 570: C"e. The Conm",,,,,eal,1r (1979) 53 AI.JR 403 al 408: 24 ALR 11l\
al 129: Allome.\'-(i~JI~ml (Vir'/); Ex rd Black. The COllltJIollln'allh (I Yl\ I) 1..6
CLR 559 J157ri-5n ';93-59.., 61S. 621 M9.
(242) (1981) 146 CLR 559 'II 593-594
190CLR1J OF AUSTRALIA 59
ycry lhfficult to reconcile with the decision in R v Bernasconi (243) He OF A
and that if s 122 is limited hy s 116, the latter section will have a much
larger operation in the tcrritoncs than in the States since s 116 is not
expressed to hind the States.
-
1996-1997
KRUGER
rllr
In R Ii Bernasconi it was held that s 80 of the Constitution, which COMMO~.
requires the trial on indictment of any offence against "any law of the "'BUll
Commonwealth" to be by jury, does not restnct the power of the
D,w,,,n)
Commonwealth to make laws under s 122. Section 80 is to be found in
Ch III of the Constitution dealing with "The Judicature". Griffith CJ
said (244):
"In my judgment, Ch III is limited in its application to the
exercise of the judicial power of the Commonwealth in respect of
those functions of government as to which it stands in the place of
the States, and has no application to territories. Section 80,
therefore, rclatcs only to offences createtl hy the Parliament by
Statutes passed in the execulion of those functions, which arc aptly
described as 'laws of the Commonwealth'. The same term is used in
that sense III s 5 of the Constitution Act itself, and in ss 41, 61 and
109 of the Constitution. In the last mentioned section it is usetl in
contradistinction to the law of a Stale. 1 do not think that in this
respect the law of a Territory can be put on any different footing
from that of a law of a State."
Isaacs J said of s 80 (245):
'But the proviSIOn 1S clearly enacted as a limitation on the
accompanying provisions, applying to thc Commonwealth as a self-
governing community. And that is its sale operation.
When the Constitution, however, reaches a new considerotion,
namely, the government of territories, not as constituent paris of the
self-governing body. not 'fused with it' os I expressed it in
Buchanan's Case (246), but rather os parts annexed to the
Commonwealth and subordinate to it, then s 122 provides the
appropriate grant of power."
Gavan Duffy oud Rich 11 adopted the view of Griffith CJ.
R v Bernasconi was not ovenuled in Lamshed v Lake or 111 any
other decision of this Court. Its reasoning is plainly inconsistent with a
great deol that wos said in Lamshed Ii Lake bUl there is much that is
open to doubt in the latter decision as was rccoglllsed by Kitto J in
Spmll v Hermes. There is even more that is open to douht in Attortlcy-
General (WAj v Australian Natiollal Airlines Commission. Section 80
imposes a requirement upon the Commonwealth in what would appear
-
19%-J9n
KR<J';>:R
,
general terms. Section 116 appears in eh V which, at least by its
heading, is confined in its application to the States. In my opinion,
whal was said 01 s 80 in R v Bernusconi applies a fortiori to s 116. I
THE
uo not think that it is possible while R v Bernasconi stands to hold that
CD."""'" s 116 restricts s 122. Nor do I think Ihn! the reasoning in Lamshed v
'''EALTH
r:;47) Ottlcial Record f,f the Debate., or the Au-'troimiwi Fedeml COIa'elll;',,,.
(Melbourne), 2 March l~n. vol V. p 1769,
(24~) S.:e """'rlley-Genel'"t (eth) \' The QlIun (1957) 95 CLR 529 m 545; [1957J AC
2gg al -'20
190 CLR I] OF AUSTRALIA 61
would enable it to be srlid thai it is a law for prohibiting the free H('Of A
{'N6_{<)97
exercise of any religion.
Due process of law and the judicial power oj the Commonwealth
In a numher of recent cases it has heen pointed out that the THE
COMMON-
Australian Constitution, with few exceptions and in contrast with its WEALTH
American model, does not seek to estahlish personal liherty hy placing
restrictions upon the exercise of governmental power (249). Those D,,,,,.,,,,,j
who framed the Australian Constitution accepted the view that
individual rights were on the whole best left to the protection of the
common law and the supremacy of parliament. Thus the Constitution
deals, almost without exception, with the structure and relationship of
government rather than with individual righLs. The fcLLers which arc
placed upon legislative action are, for the most Palt, for the purpose of
distributing power heLween the federal governmcnL on the one hand
and State governments on the other, rather than for the purpose of
placing certain matters beyond the reach of any parliament. The
Constitution does not contain a Bill of Rights. Imb::d, the I R98
Constitutional Convention rejected a proposal to includc an express
guarantee of individual rights based largely upon the Fourteenth
Amendment to the United States Constitution and including a right to
due process of law and the equal protection of laws (250). The framers
preferred to place their raith in the democratic proccss for thc
protection of individual rights and saw constitutional guarantees as
restricting that process. Thus the ConstilUtion contains no general
guarantee of the due process of law. The few provisions contained in
the Constitution which afford protection against governmental action
in disregard of individual rights do not amount to such a general
guarantee (2.51). It follows that, in so far as the plaintiffs' claim is
reliant upon a constitutional right to the due process of law, it must
rail.
The plaintiffs contend that the actions of which they complain
amounted to the exercise of Judicial power otherwise than hy courts
constituted in accordance with Ch III of the Constitution and hence
could not he validly authorised by the 1918 Ordinance. That
(249) See Allomev-Genera) (C'h), F-x rei M"K;nla.\' v The CO/1l/1lo!lweul,h (1975) 135
CLR I at 24: Dr",m ,. The Queen (19R6) IflO CLR 17\ ;It 208. 214; ""ari"lIwide
News PI., Lid. Will., (191)2) 177 CLR I ~I 43-44: Allslraliwl Capilal Television
l'ri'Lrd r "I'Ile CO/lllluml<""llh (1992) 177 CLR 106 at 135-136. 186: "I'I1<,of!hwwus
\' Herald &: Weekly TiHlt.\' 1.ld (19941 182 CLR 104 ~I 193: CwrlifJ--e v "I'Ile
C",nlllollweulih (1\)<)4) L82 CLR 272 a{ 361-3f12.
(250) Se~ iljmi""ll'ide lVew., {'rl' 1.1<1 \' Will.l 0<)<)2) 177 CLR L at 43. per g,-.,nnan 1:
OlJiciof R",.orJ of rhe DelWIn f!( Ihe AII.<lmlmioll Feder"f Comenliml
(M~lboume), )j FebnlUl)' Isn. vol IV_ pp fl64-691. H,mi,on Moore, fhe
Co".-.Imil;o!l or the Cmnmo"welllih or Au."r"lia. 2nd cd (l9LO). pp 614-61';: Ll
Nauze. Tile Mokhl!: (1/ Ihe AII.l'lralian C""",illll;"1! (1972), P 227.
(251) See. ego ,s 41, 51(xxiiiAJ, 51(xxxi), 80. 116. 117: cf Re Trauy: F.x ['fir'" Ryall
on<)) 166 CLR SIR at 5RO. per J)e;lne.l.
62 HIGH COURT ll~96-1997
HCOFA contention is dependent upon acceptance of the vicw that thl: removal
-
19%-1997
KRllGER
anu detention of Aboriginal children pursuant to the powers confcm::u
hy the 1918 Ordinance were of a penal character and hence conslilull:d
judicial rather than executive functions. II IS by no means apparent that
THE
O>MMO';.
this view can be sustained. However much one may with hindsight
WFAl.T" debate the appropriateness of the actions authorised hy the 1918
Ordinance, those actions may legitimately he seen as non-punI-
Daw,,,") tive (252). The Chief Protector (and then the Director) was the legal
guardian of Aboriginals and that position, although its prCC1Sl: scope
was uncertain, clearly imposl:u an ohligation 10 act in the interests of
the Ahoriginal community but did not involve the performance of
judicial functions. No relevant decision could legitimately be taken
under the 1918 Ordinance without regard to the interests of
Aboriginals involved and those of the wider Ahoriginal population. No
douht it may be said with justification that the events in question did
not promote the welfare of Aboriginals, but that does not mean that the
decisions made and the actions takcn wcrc of a judicial rather than an
executive character.
However, this aspect of the plaintiffs' claim must fail even
assuming that which is not apparent, namely, that those dccisions or
actions werc of a judicial rather than an cxccutive character.
Chapter ITT of the Constitution docs. of course. require the separation
of the judicial power of the Commonwealth from its executive and
legislative functions (253). The judicial power of the Commonwealth
may only he exercised by federal courts constituted in aeeordancc with
the requirements of Ch ITT and State eourts which arc invested with
federal Jurisdiction. Federal courts may only perform Judicial functions
and such other functions as are ancillary to the exercise of judICial
power, But the judicial power exercised in the territories is not the
judicial power of the Commonwealth within thc meaning of Ch JJJ.
Courts created under s 122 are not federal courts nor do they exercise
federal jurisdiction. They are not required to bc constituted In
accordance with eh III and, since it is from the terms of Ch UI and the
position which it occupies in the constitutional structure that the
requirement of a separation of powers flows, it follows that that
doctrine has no application in the territories (254). The consequence is
that, even if the decisions or actions taken undcr the 1918 Ordinance
were of a judicial rather than an executive character, no requirement of
the Constitution would have been infringed.
(252) See Chu !OIfIiX Urn ,. Mini,'la/or Jmmil)r<llloti (t992) 176 ClR I at 28.
(253) See R " Kirb\': Ex parte !Joilerm<lker.< SodeN o/AII,'lrall<l (l956) 94 ClR 254.
(254) See Porler v The King: Exp,me Yet on6) 37 Cll{ 432: 51'1<111\' Humes (t965)
114 ClR 226: C<!pilal TV & Appliance., Ply Ltd '" Falwnu It971} 125 ClR 591.
Kable \' Direcw,- 0" Public Prose,,,ri"'ls fNSW) (1996) Ill9 ClR 51
190 CLR I] OF AUSTRALIA 63
He"F A Commonwealth and the States" (256). With respect. I do not find that
-
19961')<)7
KRl'(;ER
situation surprising at all. The limitation upon the powers of the
Commonwealth Parliament which prevent it from discriminating
against the States is derived from different considerations entirely.
THE
COMMON-
which were articulated by Dixon J in Mdboume Corpora/ion j} The
WHLTH Commonwealth (257) when he said:
"The foundation of the Constitution is the conception of a central
government and Q number of State governments separately
organised. The Constitution predicates their continued existence as
independent entities,"
Thai pnnciph:: docs nol spring from any notion of equality. Moreover
the Constitution is in many respects inconsistent with a doctrine of
legal equality.
Section 51 (xxvi), as Deane] recogmsed In the Tasmanian Dam
Case (258), "rcmains a general power to pass laws discriminating
against or benefiting the people of any race". Similarly, s 51(xixj
enables the Commonwealth Parliament to make laws which discrimi-
nate in favour of or against aliens. Discrimination in rdation to the
qualification to voLe in federal ekcLions is clearly envisageu hy th!.:
Constitution (see ss 25, 30) and equality of voting power is not
guaranteed (259). And until 1967 (which is after the last alleged act of
detention ended), ss 51(xxvi) and 127 excluded Aboriginals for
specifieu purposcs. It is unm:cessary to proviue an exhaustive hst of
those respects in \vhich the Constitution ducs not support th!.: suggested
doctrine of equality, for Deane and Toohey JJ recogniseu in Leeth that
"the nature of the particular grant of legislative power may be such as
to rehut the assllTnption that such discrimination was un<lutholised by
the relevant provision of the Constitution" (2(0) or may need to he
"auJusted 10 the extent necessary to accommodate discriminatory
treatment which other provisions of the Constitution cleady contem-
plate" (261). To recognise as much is surdy to undermine any basis
for asserting that the Constitution assumes a doctrine of equality.
Not only that. but where the Constitution requires equality it docs
not kave it to implication. It makes provision for it hy prohihiting
discrimination, prefcn::nce or lack of uniformity in specific instanc-os.
For example, the power of thc Commonwealth Parliament to make
laws with respect to taxation conferred by s SIOi) mmt not be
exercised so as to uiscriminate between States or parts of Stales,
-
1991'>-1997
K""C,ER
They referred to considerations oj" a more fundamental kind.
The ultimate source of the doctrine was said to iiI: in thl: common
law. Thus Deane and Toohl:Y II said (266):
T..
C"_"Me'N- "The common law may discriminatl: hetween Individuals by
WEALTH
refercnce to relevant differences and distinctions, such as infancy or
incapacity, or by reason of conduct which it proscribes, punishes or
penalises. It may have failed adequately to acknowledge or address
the fact thaL In some circumstances, theoretical equality under the
law sustains rather than alleVIates the practical reality of social and
economic inequality. Nonetheless, and putting to one side the
position of the Crown and some past anomalies, notably, discrimi-
natory treatment of women, the essential or underlying theoretical
equality of all persons under the law and before the courts is and
has been a fundamental and gl:m:rally beneficial doctrine of the
common law and a basil: prescript of the administration of justil:e
undl:r our system of government."
Howl:vcr, whilst the rule of law requilTs [hI: law to he applied to all
without referenl:e to rank or status, the plain mailer of fan is that lhl:
common law has never required as a nl:cessary outcome the equal, or
non-discriminatory, operation of laws. It lS not possible, in my view,
to dismiss the discriminatory treatment of women at common law or
such matters as the attainder of felons (207) as "past anomalies". To
do so is to tn::at the doctrines of the common law with selectivity.
Moreover, the supremacy of parIJament. which is itself a principiI: of
the common law (26R), nl:cessarily leaves the common law suhject 10
alteration without reference to notions of equality_ The common law'
thus provides no foundation for a doctrine of equality, at all events
substantive equality as opposed to the kind of procedural equality
envisaged by the rule of law.
But even if a doctnnc of substantive equality were dIscernible in the
common law, it would not appear that it was a doctrine which was
adopted in the drafting of the Constitution. Apart from anything else, it
is clear that the Commonwealth Parliament was intended to have the
capacity, m the exercise of its legislative powers. to alter the common
law. If it were not so, the scope of those powers \vould he less than the
scope of the concurrent powels of the States. There is no reason to
suppose thnt such a capacity would not extend 10 a common law
doctrine of equality if such a doctrine were to exist. Nevertheless, in
Leeth Deane and Toohey JJ expressed the vicw that such a doctrine He "1' 1\
1996-1997
hau heen adopted in the Constitution by necessary implication by ~
IlCoFA have said, it is possible to regnrd the separation of judicial power from
-
19%1997
KRllCFR
the: other powers of government as affording a measure of due process
hUl it IS due process of an essentially procedural rather than a
substantive kind. What is clear IS that ell III says nothing, either
TilE
COMM()~
expressly or by implication, requiring equality in the operation of laws
WMLTII which courts created by or under that Chapter must administer. Those
courts have an obligation to adminIster justice according to law. No
D.1"'oo J doubt that duty is to do justice according to valid Jaw, but eh III
contains no warrant for regarding a law as invalid hecause the
substantive rights which it confers Of the substantive obligations which
it imposes are conferred or imposed in an unequal fashion. The
passage which I have reproduced appears to me to contemplate a
guarantee of what American jurisprudence calls substantive due
process, but that conception is not to he found in Ch III or elsewhere
in the Australian Constitution.
For these reasons, I would respectfully reject the conelusion reached
by Deane and Toohey JJ that there is a doctrine of equality to be found
by implication in the Constitution. For the same reasons I would reject
the plaintiffs' elaim based upon that doctrine, I would atlinn the
proposition contained in the judgment of Mason CJ, McHugh J and
myself in Leeth (272) that there is no general requirement contained in
the Constitution that Commonwealth laws should have a uniform
operation throughout the Commonwealth.
Freedon! oj' n!ovement and association
In attacking the validity of the 1918 Ordinance, the plaintiffs rely
upon an implied constitutional right to, or guarantee of, freedom of
movement and association for political, cultural and familial purposes
amI say that, in authorising the removal and detention of Aboriginals,
the 1915 Ordinance denied that right or offended against that
guarantee.
To the extent that the right or guarantee which is asserted is founded
upon an implied right to freedom of communication for political
purposes, it is now established (273) that such protection as the
Constitution affords to freedom of communication is relevantly
derived from the requirement that members of the Commonwealth
Parliament be directly chosen by the people at pef]odic elections (274).
TIle choice envisaged in each instance is a true or genuine choice with
"an opportunity to gain an appreciation of the available alteroa-
KRU,ER
THE
there is an implication it is not of any "right" and is of a negative
C"".\tON-
kind. It precludes laws which would Inhibit the required freedom of "'EALTf!
(275) S~~ AU.<I""liwl Cup/lui Television Pry Lid ,. Tile CO!!J!!JOIn,'e"llh (1992) 177 CLR
liXJ m 1~7; umge V !luslmli"" BmadcUSli1JK C"'pori1/illll (1997) liN eLR 520 Jt
560
(276) (1992) [77 eLR 106 m 246.
(277) (1912) [6 CLR 99 a( to~. 1O<J. l](); Cwdi!li: \' Tire Comm(}/",e(llrll (1994) 182
CLR 272 J( 12~. per BrcnllJll J
(~7H) See olso "i""eo- -'1"""".,' Ply Lid v H01<'hkiss (195S) 101 eLK 5~1i or 550, per
Dixon CJ; Theol'''wWUS .' Herald & Weekly Jime' /HI (1')<)<1-) 1~2 eLR 104
at 166, 169. pn Ikone],
(27\.1) S~e Pioneer E.,pres" Ply Ltd)' HOII'IIk/" (19.'i~) tol CIJ{ 5~6,
(280) (19')2) 177 CLR 106 m 212
(2Hl) See Theol'lrwlfIu., \' Herald & Weeki" Fi,m',< Lid (19\.14) 182 CLR 104 a( 193. Se~
olso Lmlfie l' .1u-"lrulia" Bmad"aslinr.; Co"pora/iol! (I '!'!7) I ~') CLR 520 or 567.
70 HIGH COURT [1996-1997
(2~7) See KUllz. "The United Nations ConvelHion on G~llocid~" AmrricclIJ .lo"m"! "t
",Iema/iolla! Lm>. vol 43 (1949) 738. at p 742. Ca.",,;;e, !llIlI"m Righi,' ill <i
Ch"ng'''f-: World (1990). P 7o.
(2~H) (ISlHHl 166 CLR 1 at 10.
(2~<) [1982) 1 :,</.L!{ 374 ~t 390
(290) [19R4] I :,<ZLR 116 at 121
(291) L19~4J I :,<ZLR 3')4 ~t 398,
(292) 119741 AC 765 ~t 782,
190CLR I] OF AUSTRALIA 73
K.L'(;ER
THE
has asccrtaim:d the true scope and effect of valid legislation. should CO.\1"'ON-
give unquestiom::d effect to it accordingly (294), I need not here repeat WeALTH
He OF A resolved. This IS not uncommonly the fatc of the procedure that has
1996-1997
~
been adopted.
KRl'(]ER
, Aboriginals Ordinance
THE To understand the enactment of the Aboriginals Ordinance 1918
ON''''',- (NT) (the Ordinance), it must be remembered that, by the Northern
WHLTH
Territor\' Acceptance Act 14]{) (Clh) (the Acceptance Act), the
Commonwealth accepted the Northern Territory from South Australia
'"as a Territory under the authority of the Commonwealth, by the
name of the Northern TcrrilrJry of Australia" (s 6(1)). The Northern
Terri/ory (Administration) Act 1910 COh) (the Administration Act)
was pllssed, tlccording to Its long title, to provide for the Provisional
Government 0(" the NOrlhern Territory". The Administration Act
provided that, until the Parliament made other provision for the
government of the Territory, the Governor-General might make
Ordinances having the force of law in the Territory (296). The
On..linance was made pursuant to that authority_ Section fJ7 of the
Ordinance empO\vered the Administrmor (appointed by the Governor-
General under s 4 of the Administration Act) to make regulations for
its can-ying out. The Ordinance was repealed on 13 May 1957 (297).
The plaintiffs' principal attack was on the validity of ss 6, 7 ami 16,
together with s 67. They also challenged the Administration Act and
the Acceptance Act m so far as those Acts authof]sed those sections of
the Ordinance. However, they did not challenge any particular exercise
of power under the Ordinance if the Ordinance was held to be valid.
Section 6( I) of the Ordinance read.
'The Chief Protector shall be entitled at any time 10 undertake the
care, custody. or control of any Aboriginal or half-caste, if. in his
opinion. it is necessary or desirable in the interests of the Aboriginal
or half-caste for him 10 do so, and for that purpose may enter any
premises where the Aboriginal or half-caste is or is supposed to be,
and may lake him into his custody."
Each plaintiff pleads that he or she "is and was, at all material limes.
an 'Aboriginal' and/or a 'half-casle' within the meaning of the
definition of those tenlls" in the Ordinance.
Section 7 appointed the Chief Protector "the legal guardian of every
Aboriginal and of every half-caste child, notwithstanding that the child
hllS a parent or other relative living". In 1953 s 7 was repealed and
replaced with a provision which read simply:
(296) s DII). By rea,on of the A<'Is Illierprel"liml An 1901 (Cth). s 17(0 Jnd (g). the
n::fen::nce 10 the Govemor-GencrJI was a refen:nce 10 th~1 pcn;on aCling with [he
advice of lhe Federal Executive CounciL
(2Y7) Weltiire Ordi/"ma 195., (NT). s 4.
190CLR II OF AUSTRALIA 75
THE
of any reserve or Ahoriginal institution or to he removed to and kept
CO"-'1{lN-
within the boundaries of any reserve or Aboriginal institution, or to WHLTH
be removed from one reserve or Ahoriginal institution to another
reserve or Aboriginal institution, amI to he kepltherem".
By force of suh-s (2), any Ahoriginal or half-caste who refused or
resisted removal or who refused to remain in or attempted to depan
from a reserve or institution was guilty of an offence. The operation of
s 16 was qualified by sub-s (3) wherehy the section was expressed not
to apply to any such person
"(a) \vho is lawfully employed by any person; or
(h) who is the holder of a permit to be absent from the reserve or
Aboriginal institution in question; or
(c) who is a female lawfully married to and residing with a
hushand who is suhstantially of European origin or descent; or
(dl for whom, in the opinion of the Chief Protector, satisfactory
provision is otherwise made"'
Two delinitiol1s should he noted, particularly having regan! 10
s [6 (299). "Reserve" was delined, following an amelllJment to the
OnJinanee in 1939, to mean
"any lands reserved for the use and henefit of the Aboriginal
native inhahitants".
"Ahonglnallnstitution" was defined to mean
"any mission station, refornUltory. orphanage. school. home or other
institution for the benefit. care or protection of the Aboriginal or
half-caste inhahitants of the Northern TefTltory, declared hy the
Administrator to be an Aborigina[ institution for the purposes of lhis
Ordinance' ,
The significance of these definitions is for the Commonwealth's
argument that reserves and institutions were estabhshed for the benefit.
care or protection of Ahorigmals (JOO). Hence, it was suhmitted, the
sections under challenge should be seen as having a welfare and
protection purpose. .It followed that the Ordinance should not be
treated as hnngmg ahout the "detention" of Ahorigmals III the sense
(29S) Aboriginal,I' Ordinance (/'i" 2) 19S3 C"olT). , 7. Although the Ordin~nee wa,
JITIended on J number of occJsion,. this is the only significrul1 amcndmcnt of
rekvance tu these proceeding<;.
C'i'i) The definition provision ",as s 3
(-'DO) Unless quoting: from the Ordinance or referring directly to it, term,. t ,p~ak of
.. Ahoriginals"
76 HIGH COURT [1996-1997
HCOF A that the term is generally understood. This view of the On.linancc IS
-
19961997
KRl.'C,ER
discussed later in these reasons.
'"egis/alive history
"
T.. The provenance of the legislation plays a part in identifying its
C()~lM""
WEALTH
object. The Ordinance had been preceded by the Northern Territory
Aburi/?illa{s Act 1910 (SA), which was continued in force by the
Acceptance Act until its repeal hy the Ordinance. The 1910 Ac! was
expressed to be .. An Act to make Provision for the betLer Protection
and Control of the Aboriginal Inhabitants of the Northern Territory,
and for other purposes". It contained proVISHlnS similar to S5 7 and 16
of the Ordinance (301).
111e Solicitor-General for Western Australia suggested that the
Ordinann:: had its gcnesis in legislation from Weslcrn Australia, m
particular the Aborigines Act 1897 (WA). That Act was expressed LO
be "for the better Protection of the Aboriginal Race of Western
Australia". However it was the Aboril?ines Act 1905 (WA), it was
suhmitlcd, from which the Ordinance was derived. The 1905 Act was
cxpressed as "An Act to make provision for the better protection and
care of the Aboriginal inhabitants of Western Australia". Section 4 of
the 1905 Act set up an Aborigines Department, . 'charged with the
duty of promoting the welL1re of the aborigines". Section 8 appointed
the Chid Protector "the legal guardian of every Aboriginal and half-
caste child". Sections 12 and 13 established a power of removal to a
reserve, subject to exemptions in s 13 in terms which s I (j of the
Ordinance closely resembles. The regulation-making power was
similar in the two enactments. The power of n:moval contained In s 12
of the 1905 Act scerns to have been borrowed from s 9 of the
AlJorixinals Protection and Restriction of the Sale of Opium Act
1897 (Q).
Drummond J has pOInted out that it was the Report of the House of
Commons Select Committee on Aborigmal Rights (302) "which
recommended the appointment in Australia of protectors of Aborigi-
nes. invested with both coronial and magisterial powers, to cultivate
relations with the local tribes and to secure the maintenance and
protection of their rights" (303). The pOlnt of this legislative history is
that it lends force to the suhmission that the Ordinance was seen at the
time as serving a welfare purpose. While the means adopted to achieve
such a purpose would now he regarded as entirely unacceptable, there
is a question as to how far any assessment can be divorced from the
pcn;eptions of the time. And there is a Illore hasic question, 10 be
discussed later, whetl1er the tenns of the legislation went beyond what
was necessary 10 secure its purpose.
-,
1996-1997
KRL'''ER
legislative power confcrred by s 122 is so restricted, the Ordinance
was not in hrl:HCh of s 116 or any such imphcation because It was
. 'cnacted and amended for the purpose of thl: protection and
['fIE
COM.'10N-
preservation of persons of the Aboriginal race" and was "cnpnble of
WMLTfi being reasonably considered to be or alternatively was appropriate and
adapted to the achievement of that purpose". Thl: Commonwealth
further argued that if the On..linance did not necessarily answer the
description in each defence, no final view could be expressed on these
matters without an inquiry into the standards and perceptions
prev<liling at the time of enactment of the Ordinance, not by reference
to current standards and perceptions. Such an mqUlry. it was said, was
not open at this stage of the proceedings.
It IS necessary to look now at the basic questions raised by the
questions n:servcd.
Seerion 122 of the ConsTilulion
Section 122 or the Australian Constitution empowers the Parliament
to "make laws for the government of any TelTitory . acquired by the
Commonwealth" The formula employed differs from that in s 51
which empowers thl.: Parliament to "make laws for the peace, order,
and good government of the Commonwl.:alth with respect to" the
mattns identified in the section. Nevertheless. "the power is no less
than the power which would have been conferred Ir thl.: 'peace, order
and good government' forrnula had hel.:n used" (310).
In Ber.l'ick Ltd v Gray (311) it was said tlml
'"all that need be shown 10 support an eXefCISI.: of thl.: power IS that
there should be a sufficient nexus or connl.:ction between the law
and the Territory".
The Commonwealth relied upon this statement and also upon the
earlier statement by Barwick CJ in Spratl I' Hermes (312) that the
power confcrrcd by s 122 "is not only plenary but is unlimited by
reference to subject matter".
The Commonwealth submitted that a sufficient connection exists
whcre a law opcrates upon persons or things within a TelTitory. On
this footing it argued that s 122 authorised the Ordinance. whether or
not it answered the description of welfare legislation. On the other
hand the plaintiffs contended that s 122 demands more than a law
having some general or remote connection with a Territory. The law
THE
whether a law was one for the government of a Territory. I would
reject this test, generally for the reasons 1 gave in Lcask " The
Co.''''''''-
WEALTH
(313) See AU.llralian Clif'/Ia' Telnisio/l PI\' Lrd,' The Cmlllll(lll\reolih (1991) 177 CLR
106 at 12.,-124. JlCr Gaudron J.
(314) (19%) 187 CLR 579 at 612-616.
13t5) (1965) J 1-'1 CLR 226 at 2-'12: see also C"pilof D"plicul(l/,S PI." Ltd.' Allslmll""
C"p;wl Teml"')' (1992) 177 CLR 248 at 271. p~r B,-.,nnun, [)~une and Toohey JJ
(16) 1llI,'lmfim, C"pilal Telni,\'io/l Ply Ltd I' The C"mmmm'caflh (1992) 177 CLR 106
at t76
(J17)(1988) 166CLR I aliI)
HIGH COURT [1996-1997
-
1~~6-1~n
KRUGER
which we need not explore."
HCOF A of the Constitution and not a 'federal court' within the meamng of
-
1996-1997
KRUGl"
"
TilE
eh III."
Barwick CJ reconsidered the cOnsequences of the reasoning in
Banasconi, saying (324):
C"'1MnN_
V,l\Utl "But in the end, I have come to the same conclusion, namely that
the judicial power to which s 7 J refers is that pan of the totality
or jw..licial power which the Commonwealth may exert which can DC
called 'federal judicial power' ,"
The Chief Justice held that "the doctrine of the duality of the judicial
power was so deeply entrenched that it ought [Jot now to be
overturned" (325).
Faced with Sprafl r Hermes and Capita/IV & Appliances Pry Ltd v
Falconer, the plalllliffs submitted that the Court should now reject the
curn::ctm:ss of the approach taken in those cases. They made lhat
submission as only one of the courses the Court might take. Primarily.
they submitted that this step was not required for their argument to
succeed. They contended that the proper understandmg of the federal
structure and nature 01 the Commonwealth offered no ground on
which to exclude the operation of" Ch III from laws enacted pursuant to
s 122. Indeed they contended that the decisIOns referred to were
authority only for the operation of ss 72 and 73(ij) of the Constitution.
As thcy put it. the decisions can he "shorn of their supporting
reasonmg
Central to the plaintiffs' argument was the submission that the
territories fonn an integral part of the Commonwealth and of a single
federal system. Thc pOlnl was Illade by Menzies ] m Sprau ('
Hermes (326) when he said:
. 'To me, it seems inescapahle that Territories of the Commonwealth
arc parts of the Commonwealth of Australia and I find myself
unable to grasp how what is part of the CommoO\vealth is not part
of 'the Federal System' It cannot. therefore, be said that the
territories are governed by 'territorial laws' as distinct from laws of
lhe Commonwealth."
Certainly that statement finds support in the preamble to the
Commonwealth of Australia CO/Istitlllioll Act 1900 (Imp) which recites
that '"the people have agreed to unit<: ][} one indissoluble Federal
Commonwealth under the Constitution herehy estahlished". It
followed from these considerations, the plaintifrs submitted, that with
the Constitution established to govern a system of whieh the territories
formed part there was no reason to exclude the territories from the
separation of powers implicit m Ch Ill.
As noted. there are judgments of this Coun in v.'hich the relationship Il COf' A
1996-1997
of s 122 to the Constitution generally has been discussed, Thus in
Spratt v Hermes (327) Windeyer J said:
"[Tlhe power to make laws for the territories under s 122 is not THE
(335) ClIU Khen!\ {jm "Milllsterj;H 1111"'/1;,-"tl"n (1992) 176 CLR 1 at 31-33, 71
(3361 L"'n"hed I' !-<Ike (1958) 99 CLR lJ2 at 143
(337) See ai,,, 7'eon lilu v nil' Commmll1'e"lth (1969) 119 CLR 564 at 570; Adelaid"
Co o(.fehomh's Wimes.'es ll1e \ The Comm"nwealth (19et3) 67 CLR lifo al In,
!"'r Latham CL :ll 156-157, p~r McTieman J: At/ome."-Gnwm! (II/eli: L:t rei
B!ud v The C{JlJlllt(l!Iwea!lh (198 I) 146 ClJ{ 559 al 576. per Banvick CJ: al 618,
per Mil,on J: al 621, p~r MUl1'hy J: m 649, per Willon J: cf al 593-594, per
Gibb, J,
R6 HIGH COURT lI9%-19'n
II C "" A throughout the Commonwealth "to the laws. the puhlic Acts and
-
1~96-19n
KRL{]ER
records, anu thl: jw..licial proceedings of every State". It is not
concerned with the position of the Commonwealth vis-a-vis the States.
The real problem for the plaintiffs in this aspect of then claim lies
rilE
in demonstrating that the Ordinance is a law "for prohihiting the free
COM'10S-
WE"LTII eXCfcise of any religion". Section 116 "is directed to the making of
law. It is not dealing with the administration of a law" (338). The use
of the word "'for" indicates lhat "the purpose of the legislation in
question may properly be taken into account in uctcnmnmg whether or
not it is a law of Ih,,; prohibited character" (339) .. 'Purpose" in this
context "refers to an end or object which legislation may serve ... it is
the C0U11 which must decide whether the measure possesses the
requisite charactcr" (340). It docs not follow that there is only one
purpose to be discerned in a law: there may be more than one. The
question should therefore he asked: was a purpose of the Ordinance to
prohibit the free exercise of the religion of the AbonglIIals. to whom
thc Ordlllance was directed'! [t may well be that an effect of the
Ordinance was to Impair, even prohibit the spiritual heliefs and
practices of the Aboriginal people in thc Northern Territory. though
this is something that could only be uemonstratcu by evidence. But I
am unable to discern in the language of the Ordinance such a purpose.
The Commonv.'ealth points to the fact that the plaintiffs have not
pleaded that, at the relevant time, they or their parents held religious
beliefs or that the detention of the plaintiffs deprived them of the
capacity to exercise those heliefs. It may be that this shortcoming only
precludes a claim for damages hy the plaintiffs. In any event. it does
not stand in the way of a declamtion that the Ordinance was invalid if
the Court is satisfied that it was for a purpose of prohibiting the free
exercisl: of rdigioll.
In their \vritten submissions the plaintiffs have referred to official
reports and corresponuence which, they say. evidence the vcry purpose
of the policy embodied in the Ordinance as the removal of half-caste
children to prevent them from assllnilating the "hahits, customs anu
superstitions of the full-blooded Abonginals". Assuming that the
material in question is admissihle in the construction of the
Ordinance (341), it cannot be relied upon in the proceedings as they
arc now before the Courl. The possibility of sustaining the claim by
reference to extrinsic material does not warrant giving a qualified
ansl,l,'er to so much of Question I as is relevant to this head of the
(338) ..1 1IUmey-GeIiNal il/iui. Fx rei mack,' Th~ COl!llllOJlwealih (19RI) 146 CLR 559
at 5BO-'iBI. p"r Harwid. Cl.
(339) Adelaide Co o{lt'iwmh's Will/en~.< ""')' The C,mlllw"",cililh (1<)43) 67 CLR 116
nt 132, per Lmh"m U.
(:'40) i\1I,'lmliml C"""'IINlisl ('art")' The Conmw"",,,,,111r (1~5l) 83 CLR 1 :ll 273. per
Kitto J
(341) See Arthur rmes & Co Plr L/(i \' VCI{NIlhie Se",ls Commit/a (1')45) 72 CLR 37 al
oS
190 CLR 11 OF AUSTRALIA 87
plaintiffs' claim. As the matter has come before the Court, the claim H CO" i\
1996-19Y7
under "free exercise of religion" must fail and the question answen.:d
accordingly.
Genocide
'"'
COM"O'"
In their amended statements of claim the plaintiffs plead that the WEALTH
Ordinance, in particular ss 6, 7, 16 and 67 in so far as thc latter
purported to confer power to make relevant n.:gulations, was invalid
beeausc
"it was contrary to an implied constitutional right to l"rcedom from
and/or immunity from any law. purported law or executive act:
A. providing for or havmg a purpose, the effect or the likely effect
of the destruction in whole or in part of a racial or ethnic group, or
the language and culture of such a group~
B. subjecting the children of a racial or cthnic group, solely by
reason of thcir membership of that group, to the legal disability of
removal and detention away from thc group; or
C. constituting or authorising the crime against humanity of
genocide hy, inter alia, providing for, constituting or authorismg:
(i) the removal and transfer of children of a racial or uhnic
group in a manncr which was crllculated to hring ahout the
groups physical dcstruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely
effect of causing serious mental harm to memhcrs of a racial
or ethnic group; and
(iii) the deliherate infliction on a racial or ethnic group of
conditions of life calculated to hring ahout its physical
destruction in whole or in part".
On its face then the claim to invalidity is anchored finnly in the
Constitution. However, the arguments presented to the Court on behalf
of the plaintiffs were confined to the submission that the Ordinance
was invalid because it authorised acts of genocide contrary to Art II(d)
and (e) of the Convcntion on the Prevention and Punishment of the
Crime of Genocide (the Genocide Convention).
The Genocide Convention was not ratified by Australia until 8 July
1949 and did not enter into force until 11 January 1951. mQfe than
thirty years after the Ordinance was enacted. The provisions ()f the
Genocide Convention do not form part of Australian municipal law
since they have not been incorporated by statute (342). At the same
time, resort may be had to the Convention, as with any international
instrument to which Australia is party. to throw light on the proper
t-'4~) ,Hilli.,rer/'!f Immi/\I"tUioJ! Wid Ibm" Alfain ,- {eoli (1')')5) 18J CLR 273 ot 286-
287. In, 304. 315.
HIGH COURT [1996-1997
(\43) MIIII,Iter!,,, Il/lllli!!/'<lIillll and 10111";,, Aft,,;,,)- reo" (199:;) I~J CLR 273 nt 2~7.
31-'i,
(44) (t988) 165 CLR 360 m 393,
190 CLR I] OF AUSTRALIA
KRlC"ER
THE
Bm'one (346), spoke of the right of persons to move freely across or COM-'>10.'-
within State bonlers as 'a fundamentJl right arising from the union of WHLTH
I have identified it; rather the decision reinforces it. Certamly Lange He"" A
1')9/i,1997
endorsed what had heen said in earlier deCIsIOns, namely, that the ~
THE
"It is limited to whatls necessary for the effective operation of that Ol."M"~
WEAl.TH
system of representative and responsible government provided for
by the Constitution." (361)
In Re Public Service Employee Relations Act (362), McIntyre J
described freedom of association as "one of the most fundamental
rights m a frce society", Although that case was decided under the
Canadian Charter of Rights and Freedoms, it is apparent from the
judgment that the importance of freedom of association was
recognised by Canadian law prior to the Charter. While the freedom
has many facets, it is an essential mgredient of political communi-
cation, a freedom which extends not only to communications by
political representatives to those whom they represent but also to
communications from the represented to the representatives and
between the represented (363). Indeed, the freedom necessarily
extends to all the people of the Commonwealth (364).
I agree with Gaudron J that m order I'm the residents of the Northern
Territory to comment on the way in which they were governed they
had to be free to provide other members of the body politic with their
views on all mmters relevnnt to their government and to discuss those
matters amongst themselves. As her Honour observed in Austmlian
Capital Television Pry Ltd v The Conrmomvealth (365):
"[A]s the matters entrusted to the ConmlOnwenlth include the
power conferred by s 122 to make laws for the government of its
Territories, the freedom of political discourse necessarily extends to
every aspect of Territory government.' ,
Comment and discussion by all those who are governed is essential for
the people to make an informed choice as electors (366). It is in this
context that issues relating to the freedom of communication will
ordinarily arise since a system of universal adult franchise now exists.
And, so far as the Northern Territory is concerned, its residents are
now called upon to make nn informed choice for the House of
Representatives and the Senate. But the frecdom of communication is
(61) LWIRe v Au"lralia" l:JmaJunling Corf'0r(ll/o/l (1997) 189 CLR 520 al 561
(62) [1987 J I SCR -' n at :In
(63) AU.\/rI.diwl Capilill Fe/e,'i.,io!! PIy!.t1l ,. The CO/lllllo/!ll'e,iI,fI (1992) 177 CLR t06
~t 13'1, per M~s()n CJ: at 174. pCr' Dcane and Toohey 11 at 212. per Gnudrnn J
See also Re PuNic Sen-ice Emf'/o.l'N' Relalio"" Act 11 ')l\7 J I SCR -' I 3 ~t 3\.1 I
(64) Australia" Capilal Te/ais/OII Ply Ud, T"~ C"mJJlo1l,,"pulrIJ (19'12) 177 CLR 106
~I 142, per M~son CJ: at 168169. pcr D""ne and T(Joh<:y JJ.
(65) (1992) 177 eLR Ifl6 "t 215,
(66) U"'iiC v A".\'Ir,r!illll Bm"deas/illii e"'/'Oralio!/ (1997) t89 CLR 520 at 560-561
92 HIGH COURT [1996-1997
-,
1996-1997
K"c"Gl"
General (Cth); Ex rel McKinlay v The Commonwealth (367):
"The people is the hody of subjects of the Crown mhabiting the
THE Commonwealth regarded collectively as a unity or whole, and the
Cm1\10N- sum of those subjects regarded individually."
\VULT"
for these reasons it is no nnswer to the claim based on the implied
freedom of political communication to point out that during the
currency of the Ordinance the residents of the Northern Tcn-itory were
not eligible to cast a vote for either the Senate or the House of
Representatives. That is to take an impermissibly narrow view. The
freedom does not ebb and now in that way. Similarly, the freedom
does not turn upon the electoral status of individuals. In other words, it
is not answered by the capacity or incapacity of Aboriginals to register
a vote during the currency of the Ordinance. I shall, when dealing with
the concept of legal equality, say something about the position of
Aboriginals as citiLens.
Although the plaintiffs assert a "right of association". in truth they
claim a limitation on legislative power to restrict the freedom of
association \vhich political communication demands. For the reasons
stated above, and for the reasons advanced by Gaudron J with which I
respectfully agree, s 122 is confined by the freedom of political
communication identified in the authorities.
In the light of these conclusions it is necessary to consider the
Commoll\.vealth's alternative defence (36R) that
"(i) the Ahoriginals Ordinance was enacted and amended for the
purpose of the protection and preservation of persons of the
Abonginal race; and
(ii) at all material times the Aboriginals Ordinance was capable of
being reasonably cunsidcred to be or alternatively was appropriate
and adapted to the achievement of that purpose".
Earlier in these reasons I referred to the question of proportionality
as [ had discussed it in Leask v The Commonwealth. In the context of
that case I rejected proportionality as a relevant test. However, in the
present context it is relevant because of the tension between the
implied freedom of political communication and the express grant of
power for the government of the Northern Territory (3691. Put another
way, the relevant provisions of tht: Ordinance must not be
disproportionate to what was reasonably ne\:cssary for the protection
and preservation of tht: Aboriginal people of the Northern Territory.
Whether the inquiry is in the terms as I have just expresset.l it, or
whether it be in terms of reasonably appropriate and adaptt:d to serve a
(3701 See LanKe I' AII.\/1'llliall Broad,."asrinK Corporari"" (1')')7) IH') eLI{ S2() 3.1 Slil-
562.567-568.
(.Hl) (1993) 177 CLR 54t al .'iOO
(72) ([975) 135 CLR 1 al 30.
(373) Set' Queslion 2.
(74) Nor/hem TenilOr..... " MenKe! (1995) 185 CLR 307 at 350-353. 372-373,
94 HIGH COURT [1996-1997
-
1~%-1997
KrWGLR
,
In Leeth v The Commomwa!th (375) Deane J and r spoke of a
doctrine of legal equality, having two distinct but related aspects.
The first is the suhjection of all persons to the law. The sccomL that
TilE
Cc)MMO~' upon which the plaintiffs relied to impugn provisions of the
WE,\LTH Ordinance, involves the underlying or theoretical equality of all
persons under the law and hdorc the courts, In Leeth we concluded,
for the re:lsons there given. that while the Constitution did not spell
OU! such a doctrine in express words, it adopted it as a mailer of
necessary imphcation. ThOSl: reusons mcluded "the conceptual basis
of the Constitution", that is, the free agreement of the people of the
federating Colonies to unite in the Commonwealth under the
Constitution. [n Street v Queensland Har Association (376) 1 s<lid, in
relation to s 117 of the Constitution, that while the section was the
product of compromIse, "there IS nothing to suggest that it represented
any compromIse of the principle that Australia was to he a
commofl\vealth in which the law was La apply equally to all its
citizens".
In Leeth (377) we added:
"The doctrine of legal equality is not infringed hy a law "..hieh
discriminates between peopk on grounds which arc reasonably
capahle of heing seen as providing a rational and rekvant hasis for
the discriminatory treatment. In one sense. almost all laws
discriminate against some people since almosl all laws operate to
punish. penalise or advantage some, hUl not all, persons hy
reference to whether their commands are breached or ohserved.
While such laws discriminate against those whom they punish or
penalise or do not advantage, they do not infringe the doctrine of the
equality of all persons under the law and hefore the courts. To the
contrary, they assume that underlying kgal equality III that they
discriminate by reference to relevant differences. Again, laws whieh
distinguish between the different needs or responsibilities of
different people or different localities may necessarily be directed to
some, hut not alL of the people of the Commonwealth." (footnote
omitted)
In the same case Brennan J acccpted a principle of eqltality, though
in terms which led him to join the majority in upholding the validity of
the sentencing legislation under challenge. His Honour distinguished
between the judicial power to send an offender to prison and the
executive power to release a pnsoneL As to the former his Honour
said (37::-:):
,
KRlCnF.R Both provisions are negative and, as Professor Sawer further
THE
observed (382):
co""o,, ,It is contrary to common sense to attributc to them any more
WEALTH
significance than they possess considered individually and in
relation to the disparate considerations with which history suggests
they were intended to deaL"
In particular there is nothing in the Constitution which excludes
Aboriginals from citizenship. Their exclusion from citizenship rights,
in particular voting rights, was the result of legislation (383). It is
unnccessary to purSlte the steps that were taken m this regard: the
matter is explored in a recent article by Professors Galligan and
ChestenTIllil who conclude that nothing in the Constitution excluded
Ahorigmals from Australian citizenship (384). There is nothing that
excludes Aboriginals from the principle of equality save the
qualification that the principle is not infringed by a law which
discriminates bclween people on grounds which an:: reasonably
capable of being seen as providing a rational and relevant basis for the
discriminatory treatment. Indeed. in Leeth (385) Deane J and I spoke
of thl: fact that
"a legislative power to make special laws with respect to a
particular class of persons, such as aliens (Constitution, s 51(xix)j or
persons of a particular race (s 51 (xxvi, neeessarily authof\ses
discriminatory treatment of mcmbcrs of that class to the extent
which is reasonably capable of being seen as appropriate and
adapted lO the circumstance or that membership".
Of course, during the period of the Ordinance s 51 (xxvi) exeluded
"the Aboriginal race in any State". It is not that sub-section with
which we arc directly concerned (386). It may be noted however that
the "discriminatory treatment" referred to in Leeth does not stand in
necessary contradistinction to laws which are beneficial to a particular
class of persons; it may include such laws.
Thc preamhle to the Constitution recites that "the people have
KR'_'<1ER
THe
Lcelll (389): COMMON-
WEALTH
"Implicit in that free agreement was the notion of the inherent
equality of the people as the parties to the compact."
In other words, the equality derives from the very existence of a
Constitution brought into existence hy the will of the people. save to
the extent thm the Constitution itsell" permits discriminatory treatment
in the sense discussed in these reasons.
When the Ordinance is analysed and plan::u in its historical selling,
is it reasonably capable of heing seen as providing a rational and
relevant baSIS for the discriminatory treatment of persons answering
the description of "Aboriginal or half-caste'''? No such basis would
survive analysis today. But, for the reasons advanced earlier in this
judgment, the Ordinance must he assessed hy reference to what was
reasonably capable of being seen hy the legislature at the time as a
rational and relevant means of protecting Ahoriginal people against the
inroads of European settlement. That is a matter of evidence. It cannot
he determined by reference 10 the pleadings. Hence the answer to this
clllnponent of the question can only be a qualified one.
Again. if hy reason of the application of this doctrine of legal
equality any of the impugned provisions were held invalid, this would
serve 10 mecl a uefellce founded on the Ordinance to a common la\'II'
claim for trespass or false imprisonment.
Application of limitation laws
I have read what Gaudron J has wntten on this aspect. It is
unnecessary to express any view on the matters canvassed hy her
Honour, save 10 agree that bccause the Commonwealth has not enacted
any statute of limitations relevant to the plaintiffs' claims and because
the Limitation Act 1981 (NT) confers power to extend the limitation
periods it fixes, it is inappropriate to answer Question 7(aj. Question
7(h) therefore does not arise.
Concl/lsion
It follows from these reasons that I would in euch maller answer the
questions reserved as follows:
Q I The legislative power conferred by s 122 of the Constitution is
restricteu hy an implied freedom of movement and association as
osn S~~ Capital DII/,liwwr,< Pt.' Ud, Allwa!iml CUl'iral '['errilo!'Y (l':l92) 177 CLR
24g al 274. p~r l:lr~nnan. Deane and Toohey JJ.
OSS) Quick ami GaITan. The Anwll<lud COIISliulIi''!1 (lr
Ihe lI"s/ralian Co",mon,,-e,r!/n
(IL)OI).p2s5
Os')) (1':192) 174 CLR 455 at 486,
98 HIGH COURT [ 1996-1997
(390) Seclion 13( I) or Ihe Norrhern [errilory IAdminisl,."ri",,) ,\,,/ 1910 (Oh) provilkd:
"Untij the Par1iamelll mak~s olher provision for th~ governmcnt or the Territory.
Ih~ Gov~morGencral may makc Ordinances having the force of law ill th~
T~rrilOry .
190 CLR I) OF AUSTRALIA 99
the care, custody, or control of any Aboriginal or hall"-caste, if, in his He or A
opinion it [was] necessary or desirabll: in the interests of the
Aboriginal or half-caste ... to do so". He coukl, for that purpose, take
that person into custody (s 6(1. Until 1953, the Chief Protector, was.
-
19%-1997
,
KKLUER
rHE
by s 7(1), the legal guardian of every Aboriginal anu every half-caste
C"'''toN
child. As a result of amendments in 1953, the Director became the 'VEALTH
(91) S,,,lion 10 was repealed by the I1horixinal\ Ol'dinance [924, However. the
ddinilions of Il.esen'e' and Aboriginat InstiIUlion' n:m~ined. they being
defined hy 1; ~ of the Ordinance rc.\pcctivcly, as f"ltow,: .. 'R~5~rv~' me~ns any
lands which, in pUlOuallce of any Ordinance or oth~r law now. heretofore or
herealier in forc~ ill the Territol)', :liT declared to J:,., a n"s~n-'~ for Aboriginals 01'
are n",;erv~J for Ihe use and benefit of the Aboriginal Ilativ~ inhabitants of the
Territory or for Ihe use and benefit of the Aboriginal inhahil;mts of the Territory."
'Ahoriginal Institution' mean, any Il,is,i"n ,tati ..m, reformalory, orphanagc.
.\cllOot, h"rn~ or other institution 1,)1' lhe bend,t, <:ar~ or prolection of thc
Ahoriginals declared by the Administrator 10 b~ all inslitution for the purpo,e., of
Ihis Ordinanec ,. These definilions w~r<: amended hom timc ({J time. hut not in
any r~Sp"cl relevant 10 thc i,sues in Ih",,, mallef';,
O'J2) l\ote thaI , I~ was amended by the Aborigi",,!., Ordi""nce 1941 such thai thc
refcrcnee to ""slahli,h~d by private cOlllributions"' was reTTlov~d
093) Th~ Ordinance wa,\ amended by th~ Abol'lRlnals Urdlnunu: (N" 2) 1953 and Ihe
words or half-casw" \\'e,-c omilleu rrorrl' 67(1)(,-),
100 HIGH COURT [1996-1997
(194) Sedion 17(1) provi[kd: "Where the Direclor nmsider, that il i" in lhe best
intere,ls 01 a ward. he may (aj take the ward into hi, cU5tody: (b) JlI!horize ~
p"r50n (0 !ak" lhe wJrd into cll,tody On bdlJlf of th" Director; (c) order lhal Ihe
ward he removed to, and kepI within, ~ res,,'"'' or in-,liIU(ion; (d) order lh"l the
ward he kepI within a rcsnvc or institution; and {e) order lhal lhe w[lrd be
removed from On~ re,erve or in<,tilulion (0 Jnother rc,crve or institution.-
190 CLR IJ OF AUSTRALIA 101
recognised by the common law and, also, for breach of their He "I' A
1996,1997
constitutional rights.
The Commonwealth's answer ,
KRL.'''ER
-
19%-1997
KRl.";ER
mailers pleaded in subparagraphs (d) and (e) or paragraph 29 of the
Amended Defence relevant to the ex.istence. scope or operation at
any material time of any and which of the rights. guarantees.
"
THe
immunities, lreedoms and provisions'!
COM"""-
WEALTH 7. On the facts pleadet.! in paragraphs 1 to 6 of the Amended
Statement of Claim ~
(a) arc the PLllntiffs' claims (or any of them) for t.!amages for
wrongful imprisonment and t.!eprivation of liberty statute
barred'!
(b) by what statute'!"
Paragraphs I to 6 of the amended statement of claim record details of
the removal of the plaintiffs in the first action and, in the case of Rosie
Napangardi McClary, her daughter and then detention in specified
Aboriginal reserves and institutions.
The questions reservet.! by the Chid Justice in the second action are
the same as those reserved in the first, save for n::fcrences 10 different
paragraph numbers In the plaintiffs' amended statement of chum ant.!
in the Commonwealth's amendet.! ddence.
Section 122 of the Constitution
It IS convenient to deal first with the argument that the Ordinance
was not a law "for the government of [al Territory" and thus not
authorised hy s 122 of the Constitution. The argument proceeds trom
the clearly correct premise that the Ordinance authorised gross
violations or the rights and liberties of Aboriginal Australians to the
proposition that, all that account, it was t.!isproportionate 10 anything
that might reasonably be required for the government of the Northern
Territory and. then, to the conclusion that it was not a law authorised
by s 122,
Thel'e are occasions when it is necessary to identify the purpose or a
la\v, either because purpose IS the criterion of its validity (for example.
if it is said to be a law for defence) (395) or invalidity (for example, ir
the purpose of a State law is to discriminate against a resident of
another State) (396) or because some specified purpose is said to
provide the requisite connection with a head of legislative
power (397). Purpose is "ascertained by considering the true nature
and operation or the law and the facts with which it deals" (39X). And
(395) ('on,liIUlion, S 5 I(vii. See. eg.. SlenlUluse r C"lemon (1944) 69 CLR 457 at 47 J
(3%) Conslilutioll. S 117, NNe Ihat i1 ;, arg:uahle [hm s 117 is nOl restricted to Sl~te
taws
(397) See. eg, Bank o{'.VSIV \' fhe CommOllweallh (194~) 76 CLR I at _,54, per Dixon.l:
ViC/or/a I' Jhe Commonweallh (1957) 99 CLR 575 at 614. per Dixon CJ:
lVal;om,'de Nev.'.' PI)' Lid v Writs (l9Y2J 177 C'LR I ul 27-2~. per !'>'lason CJ: Jt
9,. per Gaudron J: at 101, per !'>kHLJgh J
I-"JBl AI'I/iw' rille.< & Co PI., !.ut \'Vq:ewbte Sad.t Cmll/llll1ee (19<1-5) 72 CLR.17 at liS.
pn LmhulIl CJ.
ltJOCLRI1 OF AUSTRALIA 103
in that exercise, it is sometimes convenient to ask whether the law In Heo", '"
199n_t 997
question tS appropriate and adapted or, which is, in effect. the same
thing, whether it IS proportionate to the purpose which it is said to
serve (399). At le<lst thnt is so where the issue IS whethcr the law in
THE
question offends a constitutional prohihition (400). On the other hand, C,,,,,,,,,,
where the issue IS whether it has a purpose providing a relevant WEAl.TH
IJ99) Nmionwir!e Nnn PI'\' Ltd \' ,fills (1')92) 177 CLR I at 9l, per Gaudron J,
(4()0) ,'Variollwi<!e News I'r\' Ltd v Wills (l'l92) 177 CLR 1 at 95, per GaUljmn J:
Australlall ClIplllll '/elevisioll Pry Ltd V Tile Commo!lweallh (1992) 177 CLR 106
at 14l. p~r Mason CJ: at 150-151, 157, per I:lrennCUl J: at 2t7218, per Gaudron J:
Theoplwmw.\ '" Herald & Weekly Time.< Ltd (1994) 1~2 CLR 104 at 152. per
Brcnn~n J; f <IIll(e ,. AI!srmllan lJroadcastinu C()!'l'()rwiOlI (1997) 189 CLR .~20 at
V,I-562.
t4(1)S()lrlh AU.llrali,,)' T"''''eI" (1989) 1M, CLR 161 at 165, pn Wilson, Dawsoll.
Toohey and Gaudron JJ: /'i""limvide Ne"'.I' P/I' '.ul v Wills (1992) 177 CLR I at
30, per I>lason CJ: Cunliffe I' The Commmmw!lrh (1994) 182 CLR 272 at 300, per
Masoll CJ: at l~8, per Gaudmn J.
(402) See Curi/ifle I' The Commonwealth (1994) 182 CI.R 272 at 388, pn Gaudron J,
(40.1) d I"II/.<hed Il.ake (\958) 9'1 CLR tJ2 at 141. pC"[ Dixon CJ. where it is said that
"[tlhc wonh thc government or any Territory' of course describe the subject
marter of the power"
(4M) See ikwn and AnfiOlIJlCfl'S "'-qlliry Auociallofl I' FOlltml<! Film" Pty Lid (1982)
151l CLR 169 at 192-194, per Stephen L Re F: Ex porte F (1986) 161 eLR 376
JI lH7. pCI' Mason and Deane J1: Leask" The Commonwealth (199(,) 187 el.I{
579 at (,21-622, per Gummow J
104 HIGH COURT [1996-1997
(405) A:; to whi~h. ,,,e A, ..'H,l1iwl ,"'",imUlI Ainmvs Pry r,d r' 'fhe Co",,,,,,,,,,eallh
(194';) 71 CLR 29: L",nsiwd,' U,/.:(' (1958) 99 CLR 132: Sp""l1 r 11"'-11I1'.' (i')(j))
It4 eLR 226: [eon '1,,,, v The Cmnm(lmte"llh (1'16'1) II') eLI{ )(,4: n'f"lat n 1
& AI'I'!irlllces PI\' /./(/ \' Flltumer (1'171) 125 elR 591. R,.,.wld Ud I' Grav
(1976) I.B CLR 603. Norlhem umd Cmmcill' Th,. C()/lUlWIHH,,,111i (InG) 1(,1
eLI{ I. AU.<lrali"" C"l'iwl Telel'isu!II PI." Lid. 'rile CfIIlllII"m"~"!lh (1992) 177
CLR 106
(-'106) Compare, eg, th~ view oi Diwn C1 in Lamslred.' Like (1,)5~) <)<J eLf{ 132 Wilh
that ~xpr~ss~d by Harr,"ick CJ in Capil,II 'rv & API'!i"w",\' Ply rid r' F,rlu'ner
(1971:,125 CLR 591 at 5'19600, S~". g"n"rJ.lly. A'I.<I""t,wl C"f'iwl IeI('\'j"illll I'I\,
Lui v 1/1" ("mill/Wm"",lir/r (1992) 177 CLR 106 at 222223. paGaudron J.
IYO CLR 1J OF AUSTRALIA 105
(d) Imposing measures intended to prevent hirths within the H C,l> A
1946_14n
group;
(e) Fon:ihly transferring children of the group to another
group
THE
The notion of genocide emhodled in the definition in Art II of the CO""",,
Genocide Convention is so fundamentally repugnant to hasie human \I'F..\I,Tll
14(7) See ['filler \' IHinalwlI 1190H) 7 CLR 277 at 30el-305, per O'Connor J: Ex parle
Wahl! aJ!d 1011115011. In re YilIe< (1925) 37 CLR 36 at 93, per Isaacs L S(lrby \.
The CO/lllIIlHl\\flllTl1 (19H,') 152 CLR 281 at 289290_ per Gibbs CJ: al 309. 311,
per Mason. Wilson and Da"i'On JJ: Balog r Independelll C"mmi"sio" AgainST
CorruptiOIl (1990) t6<J CLR 625 at 635-636: Rmp/IO l' WeSTern Au.'tmlia (1990)
171 CLR ! at 18, per Ma.~on CJ. Dean",. Dawson, Toohey, GaUllrun and
:>.-kHugh JJ: Corpurale Affair" C"mmisri"J! fNSW) r Yuill (l<J9J) 172 CLR 319
at 322. pn Brennan J; al 33t, per Dawson J: al 331;. per Gaudron J: at 348. pn
McHugh J: Coco \'/he QI,een (19<J'1) 179 CLR el2? at 437438, per Ma.\on CJ.
Brennan, Gaudrqn and McHugh JJ: at 446. per o"an", and Dawson JJ,
(408) R \' Public Vehicles Licellsillg Appe,,1 Tribunat (Tas), Ex p"rlf AU.l'lrali"lI
,Varlml,d Ai,w"y" Ptv l.ld (1<)64) 11:\ CLR 207 at 225, See '11>0 Jumb/lrllw C(I"I
,l,line, I'lL., Vic/"r;"" C(lal Miners As,w,i"/i,,n (1908) 6 CLR 309 at 367-368, per
O'Connor J: R r Co/dill/lit, fx {Jarle AU,'tUlfill" Social Wettiire Urli"" (1983) 153
eLR 297 at 313-314; The CO",mOIlIl'<'allh I' T"sm"nia (Ihe 10.SJJ1I1"i"" nam Case)
119H}) 15H CLR I at 127, per 1\-la.~on J
(409) Am"lgalll<JI<,d S"cietv ot' Ellgilleer5 ,. Adel"id,' Steam,hip C" Ud t 1920) 28 CLR
129 al 151-152, per Knox CJ. Isaae", Rkh and Slarke Jj,
(410) (1 nO) 28 CLR 129 at 151152, per Knox CJ, I'aacs. Rich and Slark~ 11,
{411) lhe C01l.<Iimiion ot"he Cmnlll"lJIl'ealiit o{AI/slmlia, 1,1 cd {1902), p :,29.
lO6 HIGH COURT [1996-1997
He"F A repeated (412) that, under the Australian Constitution, '"the rights of
-
1996-1997
K"''';F.R
individuals are sufficiently secured by ensuring, as far as possihle, to
each a share, and an equal share, m political power". However. the
Constitulion ensures no share in political power to the people of a
Tee Territory. 111cy have no constitutional nght to participate in elections
COMMO"-
WTAl.n, for either House of Parliament: they have no constitutional right to
self-government. Such rights as they have in these respects arc purely
G,ud"," J statutory and, so far as the Northern Tenilory is concerned, were of a
lesser order than those enjoyed by other Australians during the penod
\vith which these cases arc concerned (413). And only smce
1977 (414) have persons resident in a Tenitory had the right to vote in
a rdercndum and, then, only if there is a law in force allowing for the
Territory's representation in the House of Representatives (415).
At least to the exlcnt that the Constitution makes nD distinct
provision for the parliCJpalion of the people of a Tenitory in any
electoral processes, it may fairly be said that it allows for terntories to
be ruled as Commonwealth fiefdoms. That being so, the considerations
which require that other granls of legislative pO\ver be construed
without regard to possible abusc havc no part to play in the
construction of s 122. Rather. I would consider it much the beller view
(412) S~~, ~g. Atromn'-G"",,m/ (Ohl. f..r rd McK'n/ay \' '!'Irc COI!IJJwll\\cal,h (1975)
135 CLR I ,It 24. p~r R~rwick CJ: at 46. per Gibbs J; /'/<IIio/iwide ,VCll'.' PIl: rid,
Will.l (1992) 177 CLR I ~t 43, per Rr~nnan J: iluslruliuJi Capllu! Tdfl'i.,ioll P,r
Lid v Tlie Commomwo!lh (199~) 177 eLR 106 at IYI-I'-lIJ. per Mason CJ. at 182,
per Dawson J. Thc0l'hwwu.\, Hera/d & Weckl., Time,1 Lid (1994) 182 CLR 104
at I':JJ, per Dawson j,
(41.') Notwithstanding: (hat th~ Nonhenl Terrilory Represelllarillli Ael 1922 (Oh)
provid~lI ror th~ deLlion or a r~prl"l'ntntive to th~ !!0U\~ of I<~pre,enlativ~,. il
W,,, not until 1968. when that Act was amended by s 4 of the "'oullem Terr;lorr
Re/nes"mmio" !lei 1968 (011.1, thm "[tlhe member "'pr~s~nling thc No"hcrn
Turilory [was given] all the powers. inmllmiti~, and pri,'ilcg~s or a m~mber
representing an Electoral Divi,ion of u Stuk and the reprc.\cmation of the
:--Ionhcrn Tcrritory Iwas to] b~ on the sam~ t~rms ;C; [he r~pn:,cntation of sllch an
ElccJoral Divi,ion se~, G of the Norrhem Ternwn Rel'rf.lUlllilion Acr In:!
(Cth). Th~~ wa, no Senate repr~,~lllation at ~ll for lhe r-:OIth~rn TerrilOf)' prior to
th~ COlllmcnc~mell1 of th~ SCn(/le rRepresemm'o!l or Terriloriesi ACI 197.1 (Oh)
(Scction 6 of the ./y'orlhenr Tcnilon Rq>resemario" ACI 192210h) and lh~ SPIlme
IRepreselllalioJl ol Terrirol'io) An 1973 ICth) were held to b~ <:on,titutionally
"alit! in Quum1"",' \' '['ite C",1/mOI[lI'cll!lh (1977) I.W CLR 585.) Th~ ~nti[kl1lcnl
of Ihe peopk of the "onhem T<:rrilory tu panicipale in feder~l el~di{)n, is now
r~gululet! hy ,,'-I()-54 of the C'rIl!l"""" .. e"llh F./e<:lowl An 1918 (Oh), Self-
government was g:rant~d [0 [h~ r-:orlh~m TerritOl)' by the ;VoJ'/llem Terr;lOrI' rSdl-
Gm'emmelll) An 197H (Oh).
(414) S~dion 2(a) of th~ CO/lsI;I"r'"" AlrerUl;(JI! (fI~terendllmsJ 1977 (Oh) altered:; 128
by insetting th~ won!> "and T<:rrilory" in both places to which refen;nCl' is made
to lh~ e1~dor, "in ~ach Stat~"
(415) The final p~J'agr~ph of s 128 or lh~ C"n.stitution, inserted by s 2(h) of the
C",lsrilullurl A!rcnuio" IRe/ere"d",,,st 1977 (Ohl is as follows 'In this section,
'Terrilory' lIleans any T~n'itory rdelT~d to in s~cli()n one hundred and (wenty-Iwo
of thi, Constitution ill J'~,p"'<:[ of which there i, in force ~ law ullowing: it,
represent~tion in lh~ H"u,e "I' Rl"pr<:s~nta(i\ies.
190CLRI] OF AUSTRALIA 107
that s 122 is to be construed in light of the fact that, unlike other H C"f'A
1996-1997
Australians, p~rsons resident in a Territory have no constitutional right
to participate in the democratic processes and, thus, have no protection
on that account in the event of an abuse of power. And, I would
THE
consider that that approach requires that s 122 should he construed on COMMON-
the basis that it was not intended to extend to laws authorising gross WEALTH
KRU(;ER law of the Commonwealth, its attempt 10 confer power on the Chid
, Protector or his delegate 10 deprive Aboriginal people of their liberty
THE
was an attempt to confer on them the judicial power of the
COMM""-
WEAl-TIl Commonwealth. If that is so, the plain lilTs afC correct in their claim
that the Ordinance was, to that extent, invalid. In this regard, it is
GoLlcln"'! sufficient to note that it is well sl:lllc:d that ell III requires that the
Judicial power of the Commonweallh he vcstcu only in the courts
named amI specified in s 71 of the Constitution (416). However, the
plaintiffs face considerable difficully In making good the two
propositions on which they rest their clmm that the Ordinance
offended the requirements of Ch III.
It was held in R v Bernasconi (417) that s 80, which IS In Ch III and
which requires trial by jury for indictable offences "against any law of
the Commonwealth", does not apply to offences created by a law or
by an Ordinance made pursuant to a law enactcu under s 122 of the
Constitution. Similarly, it was held in Spratt v Hermes (418) that
courts may be created under s 122 to c:>:.crcisc jurisdiction with respect
to events in or concerning a Territory without satisfying the
requirements of s 72 of the Constitution. Those uccisions have
somclimes heen said to rest on the proposition that Ch III "has no
application to the tcrrilones" or "does not extend to the
Territories" (419).
In Spratt, Barwick CJ declined to accept the full extent of the
proposition that Ch III has no application to territories (420). Instead.
he was of the view that the deCISIon m Bernascuni was correct hut on
the ground that s 80 applies only to offences against laws enacted
pursuant to s 51 of the Constitution (421), And In 5prau his Honour
held that s 72 applies only to federal courts, that is "couns created oy
la\\'s maue in pursuance of the 'federal' legislative powers contained in
s 51 of the Constitution". not courts created pursuant to s 122 (422).
There arc difficulties with his Honour's approach to ss 72 and gO in
that it involves reauing limitations into those provisions which their
tcnns do not require.
There are, however, even greater difficulties with the view that
(4t61 R L' Kirbv; Ex pO"lf /joilermakers' S"eien 0/ ..111J1wii" (I ')56) ')4 CLR 254.
(417) (1915) 19 CLR 629.
(418)(19651114CLR226,
(419) .'vimm l' Hermes (1%5) 114 CLR 226 at 24-'. per Barukk CJ; al 253. per Kino J.
rderring- to R)' Bernasconi (1915119 eLI{ ('2L), See also POrler L' Tile Kill/{, f,'x
Iwrle y"" (1926) 37 CLR 432. Federa! C"pll,,1 COlI/mis,liol! t' LoriHim BI/ild"'/: &
/rl'-e.<lmew Co I'ly Ud (1929) 42 CLR 582; W(l/ers \. The Commo""'eoilh 11')51)
82 CLR 188
(420) 5'''011,' Hennes (I '!(i.'i) 114 CLR 226 at 245,
(.+21) 51'11111,' lINme" (1965) 114 CLR 226 at 244,
(422) Sprwi ,'Hame,1 (1965) 114 CLI{ 22(, al 242-243
190 CLR 1J or AUSTRALIA 109
KRU(;ER
THE
the Parliament of the Commonwealth pursuant to s 122. However, it
C"""ON-
may be that different considerations apply to laws enacted by the WEALTH
(42.,) See C"pilat D"pliea/"I"s Pr, Ud I' A".<lrali"" C"pil(1/ Terri",'." (t992) 177 CLR
24H.
{--124j(1992)176CLRI
(425) fjm (1992) 176 eLR t at 27
(426) Lim (19921 176 CLR I at 2H-2\.!,
(427) Um (1992J 176 CLR I at 27
110 HIGH COURT [1996-19lJ7
HCnl-A the immunity which their Honours would there acknowledge (428).
lY%-19Y7
And of course, it was held in Lim that aliens might lawfully be
KRu;eR detained in custody for the purposes or expulsion and deportation and.
also, for the purposes of the receipt investigation and determination of
THE
CO".\1(lN-
applications for admission to this country (429).
WEALTH At one leveL the existence of so t11<lny acknowledged exceptions to
thl: immunity for which the plmnlills contend and the fact that those
(iauJ,,,n J
exceptions serve so many different purposes tell against the
implication of a constitutional rule lhat involuntary detention can only
result from a court order. AntI that is so even if the supposed rule is
one that is subject to exceptions. Of greater sigmficance, however, is
the consideration thm it cannot be said that the power to authorise
detention In custody is exclusively judiCial except lor clear exceptions.
I say elear exceptions because it is difficult to assert exclusivity except
within a defined area and, if the area is to be defined by reference to
exceptions, the exceptions should be clear or should fall within precise
and confined categories.
The exceptions recognised In Lim are neither clear nor within
precise and confined categories. For example, the exceptions with
respect to mental illness and infectious disease point in favour of
broader exceptions relating, respectively, to the detention of people in
custody for their own welfare and for the safety or welfare of the
community. Similarly, it would seem that. if there is an exception in
war time, it, too. is an exception which relates to the safety or welfare
of the community.
Once exceptions are expressed in terms involving the \.velfare of the
individual or that of the community. it is not possible to say that they
are clear or fall within precise and confined categories. More to the
point, it is not possihle to say that. subject to clear exceptions, the
power to authorise detention in custody is necessarily and exclusively
judicial power. Accordingly, I adhere to the vIew that I tentatively
expressed in Lim, namely, that a law authorising detention in custody
is not, of itself, offensive to Ch [[l (430).
Moreover, the acknmvledgmcnt by Brennan, Deane ano Dawson JJ
in Lim that the immUnity there enunciated docs or may not operate in
war time is. In my view. inconsistent with the nOlion of a general
immunity from involuntary detention deriving from Ch III of the
Constitution. The defence power, as with the power to legislate with
respect to the other mallers specificd in s 51. is "subject to [the]
Constitution". It is, thus, equally subject to the limitatiuns deriving
from eh III as is the power to legislate with respect to those other
matters.
[ do not douht that there is a broad immunity similar to, but not
KRUGF.R
THE
custody, divorced from any breach of the law, is not a law on a topic COMMClN-
with respect to which s 51 confers legislativc powcr. The defence WEALTH
-
19%1997
l(R\'<,FR
,
from and/or immunity from removal and subsequent detention without
due process of law in the exercise of the judicial pO\ver of the
Commonwealth conferred in accordance with Ch III of the Consti-
l"Il~
COM.\10N-
tution or of judicial power under laws of the Commonwealth".
WEAHH There are two aspects to the asserted right of due process. The first
is. In essence. another way of putting the argument based on Ch 111.
G.uJ"m J Accordingly, it need not be further considered. The second IS an
alternative to the argument based on Ch III. It proceeds on the basis
that. suhject to exceptions which do not eXICnd to the Ordinance, the
power to order involuntary detention is necessarily judicial power, hut
is not the judicial power of the Commonwealth if conferred pursuant
to s 122 of the Constitution. For the rcasons gn'Cn with respect 10 the
argument hased on Ch Ill, it cannot be said that the power to order
involuntary detention is necessarily Judicial power, whether or not
subject to exceptions, and, thus, s 122 is not suhject to an implied right
of due process, as contended hy the plaintiffs. There being no such
right, the Ordinance was not invalid hy reason of its mfnngemcnl.
Implied guarantee of equality
The plaintiffs rest their argument in support of an implied guarantee
of legal eyuality on what was said hy Deane and Toohey JJ in Leeth r
The Commonwealth (437). Tn that case, theIr Honours expressed the
view, in a dissenting judgment. that, as a matter of necessary
implication and subject to certain exceptions, the Constitution providcs
a guarantee of legal eyuality. TheIr Honours allowed for exceptions
where the grant of legislative power expressly aulhof]ses dlSCnml11at-
ory laws and where the subject mailer of the grant is "such as to rehut
the nssumption that such tliscrimination was unauthorised hy the
relevant proVIsIOn of the Constitution" (438).
In Leeth. I expresseJ the vtew. 10 which I still ndhere, that Ch HI
operates to preclude the conferral on courts of Jiscretionnry powers
\vhich are conditioned in such a 'ovay that thcy must he exercised in a
discriminatory manner (43'1). If that view is correct, there is a limited
constitutional guarantee of equality before the courts, not an immunity
from tliscnml11alory laws which, in essence. is whm is involved in the
argument that thl:rl: IS an ImpJieJ constitutional guarantee of equnlity
Several provisions of the Constitution are exprl:ssly concerned 10
prevent discrimination: the power to legislate ,-,'ilh respelt to laxation
is subject to the requirement that Jaws on thm topic '!lot
discriminate between States or parts of Swtes" (440); the power to
legislate with respect to bounties is subject to the requirement that they
HCOF A the validity of the Ordinance. It follows that the Ordinance was not
19')6-1997
invalid by rcason that it was contrary to an implied constitutional nght
to or guarantee of equality.
THE Implied freedom (~l movement and of ossocimioll
COM.'1flN-
\\'E,'LTH
It is settled constitutional doctnnc thai the Constitution provides for
a system of govcramcnt which entails representative government and
G,tudnm J n::pn::scntutivc democracy (447). It IS also sCllkd constitutional
doctrine that the system oj democratic government for which the
Constitutioa provides depends for its maintenance on freedom of
communication and discussion of political matters. Thus, it was held in
Nationwide Nn','s Pty Ltd v Wills (448) and in AI/stralian Capital
Telerisir)// Pry Lid .' The Commonwealth (449) thaL the legislative
power confern:d hy s 51 docs not extent! to laws which impermissibly
impede the free flO\v of information and ideas on mallers \.,..hich may
come under consideration III the political process. And it was held in
Theophano!ls v Herald & IVeekly Times Lid (450) and In Stephens v
West Australian Newspapers Ltd (451) that that freedom impacts upon
the Iaw of defamation.
The implied constitutional freedom of political communication was
recognised in cases concerned with laws which. in one way or another,
restricted the freedom to communicute infonnation, ideas or opinions
with respect to mailers which might fall for consideralion in Ihe
political process. Those cases do not hold that the freedom IS confined
to political communications and discussions. Rather, the position is
that the Constitution mandates whatever is necessary for the
maintenance of the democralic processes for which it provides (452).
The fundamental elements of the system of government for which
the Constitution provides wen:: descrihed hy Mason CJ. in terms with
(447) Scc gcncrally, Nmll",,,,ide Nell'.' Pry Ud,' Will, (1992) 177 CLR I. AIIJlraliml
Capitol Teh..-i,w", Ply Lid " The COilU>IOJlwealrh (t992) 177 CLR t06:
TheopluJlwuI \' Herald & Wedll' Times Lid (t994) t82 CLR t04; 5Iephens"
ll'eM AUltralian !l/el,-.'paper" Uri (1994 \ 1R2 CLR 2tt. CUIllifje " The
Commonwealth (1994) t82 CLR 272; 'AJIIW: \. AIHlmiiall Rroodcaslilll:
Corporalion (997) IS9 CLR 520 al 557-559. NOI" thaI lh~ l"rms "r"pr"s"maliv"
govcmmcnl" and ""'pr<""nlaliv<, d"rno(:r.. ~y" h,,,,,, b~"n "us"d ~olTJ<.'whal
intcrchangeably" McGi,l/v,' We,Hem AU.l"tmlw (1996) 186 CLR t40 ~\ 198, p~r
Toohey 1: d Theoph",,,,ul" \' Hemld & Weekly Time., Lid (1994) IlQ eLK 104
Ul 189, p~rDJwson J; al t99'::!01. per McHugh 1.
(44g) 0<)92) 177 CLR 1
(449) (1992) 177 CLR 106
(450) (1<)94) 182 CLR 104,
(451) (1994) IS2 eLK 2J I
(452) Sce Nariom..ide Nell'S Ply rul., Iifh (19<)2\ 177 CLR 10148. per Brennan J
wh"re il is said Ihat "whe[e 0 representative democr~cy is cOnSli{[l1ion~lJy
~mr"nch"d, it c~rrie> wilh il lhose kgal in~i(knb wh;~h ~r" ~ss~ntiat 10 [h"
cffeetive m~inlcnUllee of lhal form of govemmcnt."'
190 CLR 11 OF AUSTRALIA 115
HCOFA freedom on the parl of citizens to associate with those who \vish to
1990199]
communicate information and ideas with respect to political matters
and those who wish 10 listen. It also entails the right to communicate
, with electeu n:prcscnlalivcs who "have a responsibility not only to
THE
ascertain the views of the electorate but also to explain and account for
C"""ON-
WFM.rH their decisions and actions in government and to inform the people so
that they may make infonTIcJjudgmcnts on relevant matters" (458).
Agnin modern methods of communication notwithstanding, freedom
of political communication between citizen and citizen and between
citizens and their elected representatives entails. at the very least,
freedom to move within society, freedom of access to the institutions
of government and, as was early recognised in R v Smirhers; Ex parte
Benson (459), freedom of access to the sent of government.
As already mmtioned, the Commonwealth's power to legislate with
respect to the matters specified in s 51 of the Constitution is limited by
and subject to the implied freedom of political commul1lcation
necessary for the maintenance of the system of government for which
the Constitution provides. And because freedom of movement nnd
freedom of association are, at least in the respects mentioncd, aspects
of freedom of political eommuniention, they, too, arc implicit 1I1 the
Constitution nnd constrain the power conferred by s 51. It is. however.
another question whether the power conferred by s 122 is subject to
the same freedoms. That question, so far as it concerns freedom of
political communication, was refcrrcd to 111 Nationwide News and in
Australian Capital Television, but not decided (460).
There are two matters which might be thought to provide some
support for thL: viL:\v that thL: power 10 legislate pursunnt to s 122 is not
(:ISS) AU.\'lralia" C"pit"r Televi.""n Pty Ltd )' The C"''''/lolI\lta/1i1 (1992) J77 CUt 106
at 13~. per M~son CJ
H5~) (t ~ 12) 16 eLI{ 99 at 108,109, per Griffith CJ. ~t 109-110, I"'r Flar10n J. Se-:o ~Iso
I'loneer ~~l're,'s I'rf Ltd l' HOIdlkin (1958) 101 CLR S'6 at S50. per Dixon CJ:
/'ilillonwide New", Pry Ltd v IVil/s (1992) 177 CLR I at 71-74. p~r [)~an-:o and
Toohey JJ: A,wralian Cupll"/ Tdel';.\io" Ply rid v The COIrJ!II()/HveOIIIi 0\)')2)
177 CLR 106 Jt 213-214, per GJudron J; Theophw,,,"., \ lIerald & Wecklr Time.<
Ltd (1994) 182 CLR 104 at 169. per ~atle J. In TIr~()t'lwlwllS (994) 182 CLR
104 at 166, Deane J charaderiser! Smitlwr" as having affirmed the "'~onstjtutional
implication of freedom of ~ee"s, by Ihe rcprcserll~d to the organs and
in,lrumcnwlitie, of their representalive g,wemmenl"
(460) In Auslralial? Capillil Television f'ry Ltd .. 1hp Co",,,,,,,,,,'e,,llh (1992) 177 CLR
106 at 176 Deane and Toohey 11 nOled thaI lhey were "not pres~Jllly persllJded
lhal s 122's power to mnke law, 'for lhe government of ,my Terrilory sUfITmkred
by any State' is immune frolll the impli~Jti<)ns to he di,lcemcd in the Con,titution
as J ,vhole. induding Ihe implication of frc~dom of pohtkal eommunicJtion'
McHugh J, how~v~r. was of the view that '"Itlhere is nothing in s 122 or
anywhere ehe in the Conslitution which suggests lha! ta,,'s made by the
Commonweallh for the gov~mmem of a Territo!)' aT'<' ,ubje<:1 to prohitJilionl or
limitations ari,ing from tbe <:on<:epls of representalive gO'.'l'rnment, responsible
go"emllleni or freedom or eolllm~lliealioll'" i111.'traliwl Cill'llill Feln'isi"" (1992)
I77 CLR 106 a! 2'-16.
190 CLR I] OF AUSTRALIA 117
(46\l C"pil"{ H' of Appliwrccs Ply Lid v Falconer (j97l) t25 CLR 591 al 599, P'"
Balwick CJ.
(4f12) As to which. ,ce \I"esl \ C"mlniSSI/llia of l<J..\"IIliNI f/1iSll'j (1937) 56 CLR 657:
Esse",'"" C"iJ)(Jf(Uillll ~' Crileri"'l "I'Ilealre,~ Lid (19el-/) 74 eLl{ I. Melbourne
C()Il'OIwi"" \' "I'I,e C"mmmil>Wdll! (1':J47) 7el- CLR 31, ViCI()J'i<l v The
Co",,,ullnH'''/lh (lh~ P'Hml/ T"x Ca.ld (l':J71) 122 CLR 353. Queenslwld
t/ect,-icil.\' Commis.,ion \. 'llIe C"mll/on\H'o/lh (1':J1I5) 159 CLR In: Siale
n",nrhn '!( C"nrmen:e <md Indl'II(\' I' The CommO/lWeu/llr (lhe Sec"/ld Fringe
En""irs T"x C",e) (19H7) lfd ClR 329
(el-li]) '/""ri r"u v The Commonwe"lth (19ri9) 119 CLR 'i(,,j.
(el-M) S,,<;' cg, t? \' IJem<lsclllli 0;.115) 19 eLl{ 629: l'o''1C1" v 1'111' King: Fr parle Yee
11926).',1 CLR 432; Wmers \. The CrwwlfIr,wealrh (1'}51) R2 CLR IRH: S"I"IIII ,.
llnmes (I,}(,-~) 11,1 CLR 22h: Capital 1'1' & Appliance., PI." Ltd \' Fa/umer (1971.1
125CLR591
(465) SI'iJ::<lrI " SI('\",rr (I ')'J4) 1111 CUI 54H,
(4(,(;) (199~) 177 elf{ ~4l\
I" HIGH COURT [ 1996-1997
HCmA impose duties of excise. the power to impose which is, by s YO,
1')%1997
conferred exclusively on lhl.: Commonwealth.
Nor, m my vu::w, docs it follow that, hccausc the splcm or
representative government for which the Constitution provides has no
l"f1L
C<,."',,.~
application to territories, s 122 is unaffected by the implied freedom of
Wb\UH political communication identified in NatiOll"widc l','cws and In
Allstralian Capilal Te!nision. In Ihis regard. it is sufficient to note thal
G,uJ"," J the Constitution contemplates that territories will be governed by lav.'s
enacted by a Parliament comprised of persons elected by anu
n::sponsih1c 10 the pt:oph::; it most certainly docs nol contemplate that
they are 10 be governed by an executive unanswerable either 10 thl.:
Parliament or to the people.
Accordingly, the question whether s 122 is suhject to the freedom of
political conunumcation identified in Nationwide News and III
Australian Capital Televisiou is one that must be answered by
ascertaining the meaning and operation of that provision in its
constitutional setting. In particular, its meanIng and opcnltion must be
ascertained by having n::gard 10 the Constitution as a whole. In this
respect, I adopt v.'hat was said by Kino J in Lamshed v uikc (467):
" ... the fact that tbe section is found embedded in the agreed lerms
of federation, with every appearance of having been regarded III the
process of drafting as a proVIsion upon a matter germane to the
working of thc federation, seems to me to underline the necessity of
adopting an interpt'etation which will treat the Constitution as one
cohcn::nt IllstrumenL for the govemmcnt of the rclkration, and not as
two constitutions. one for the federation and the other for its
territories.' ,
lhen regard is had to the Constitution as a whole. there are two
rcatun:s whidl. III my VIew, nl.:ccssitate the conclusion that s 122 IS
confined hy the freedom of political cOTllTllunication idcntified in
Natimnl'ide News and in Australian Capital Tdevision and by the
subsidiary freedoms of association and movement to which reference
has already been made, The first is the nature and scope of the
freedom of political communication identified in those cases. The
sccond is the special position of territories in our constitutional
arrangements.
Freedom of political communication is a freedom which extends 10
all matters which may fall for consideration in the political prOi,;ess.
The government of the Australian territories is one such matter. Hence.
the freedom extends to all matters that bear upon Territory government
as well as those whieh bear upon the actual government of the He, A
1~%,1~97
Territories (468).
Moreover. the nature of the freedom is such that it extends to
memhers of society generally (469). In Australian Capital Telcvisio/l,
TH~
Mason CJ pointed out that ""individual judgment, whether that of the C"-'N(,N-
elector, the representative or the candidate, on so many issues turns ",'EnTH
upon tree public discussion in the media of the vic ....,s of all interested
persons, groups and oodles and on puhhc participation 111, and access ,"'lull,,,"!
{461\) See AUSlroh<!1I Copllal Telel'isiOIl Pry Lid .' The COJ1ll>lflll"'e,,llh (1<)92) 177 CLR
106 U! 1<12, per Mason (1; at 168169, per De~ne ~J\J Toohey JJ; at 215-217, per
GaudronJ, see Jiso Jl BI, per McHugh),
(469) See Theopll<HltllIS" Herald & Weekly Tillie" Ltd (1994) IR2 (LR 104 U! 122, per
~Iason CJ, Toohey and Gaudron )J refening 10 AII,<trlrliaJ> Capital Tdn-iliml Pr..'
Ltd.' The C(!mmtllllrealih (1992) 177 CLR 10fi ut 139, pt)r M:l.~on C1: at 174, per
Deane lIml Toohey JJ; at 212. per G~udrl)n J.
(470) /w'lroliml Capiml Telnisiml (1992) 177 CLR 106 U! 1.'1<).
(471) /w.\lraliwi Capital Telaisiml (1<)92) 177 CLR 106 at 1.'1<).
(472) The Northern Territory wa, "annexed to the Province of SOlllh Australia by
Letters Palent in 11\63' (I..am,lhed \' Lake (1951\) 99 CLR 132 U! 140) and owes it,
cxislencc a, J TerritoI)' to lhe sUITl'nder of Territot)' by the SlJte of South
Australia Jnd Ihe a((eptanee of lhal Terrilory hy the CommonweJhh. See
,vouhem TerrilOry Surrender A('I 1<)07 (SA): iV"uhem TerrilolT /\c,-eplwwe Ad
1910 (Oh)
(473) Section 52(;) rekvJntly confers exdusive power 00 the Parli~meJ\t I<> make law,
with respect to '(he ,cat of government of the COllunnnwealth"
(c/74) Section 125 rdevantly provides for the seat of Government 10 be within
Territory gr~nled to or ~cf.juired by the C()mmonwealth"
120 HIGH COURT ll'.l96-19tJ7
HCNi\ Parliament may make every proper provision as part of its legislative
I996-1 ~~7
power operating throughout its j llrisdiclion" (475).
Although it is for the Parliament to make proper provision for the
,
KR\.LLR
g(ivcrnmcnt of the territories of the Commonwealth, responsibility for
THe
their government and, thus, for the welfare of those who reside in them
C""-""N-
WEALTH ultimately rests with the people to whom the Constitution entrusts the
responsihility of choosing the Members of Parliament (476). Clearly.
the proper discharge of that responsibility depends upon the free now
of information with respect to all matters bearing upon Territory
government amI. also. those matters which bear upon the actual
government of the Territories.
Moreover, thc propcr dischargc of" thc responsibility which tbe
people of Australia ultimately bear for the government of the
Territories uepends on freeuom of political communication bet\vecn
them and persons resident in those Territories: there eoulu hardly he
in ("oITneu judgmcnt on matters relevant to their government if residents
were not free to provide other members of the body politic with
information as to the affairs of the Territories. And although persons
resident in the Territories have no constitutional right to participate in
the electoral processes I"or which the Constitution provides, the
discharge by elected representatives and Ministers of Stale of their
responsibilities requires that there be freedom of communication
between thcm and persons rcsiding in the Territoncs. Anu for
uiscussion between persons resiuent in the Territoflcs and othcr
memhers of the body politic. induding elected representatives and
Ministers of State. to be properly infoflTled, it is necessary Ihat there be
freedom of political communication between the persons who reside in
the Territories.
11 follows that. if Parliament is to remain accountable to the
Australian people. the freedom of political communication identified
in Natiollwide Neil'S and in Australian Cupirul Telel'isioll must extend
to persons resident in the TCITitorics and Ih<:ll. 111 that regard, s 122
stanus in the same position as s 51 That being so. the power to
legislate pursuant to s 122 is confined by the frecumTl of political
communication identified in Nationwide News and in AI/slm/ian
CaJlitul Television and. also. by the subsidiary freedoms of movement
<ind association which, as r have explalilcd. arc csscntial lor the
mmntenance nnu llltegrity of the system of representative government
for which the Constitution pmviues.
The freedom of political communication identifieu in Nationwide
Nn;,s and in Australiall Capital Television IS not absolute (477).
KW(;E"
,
THE
which authorises laws with respect to defence, s 51(n) \vhich
C".\1MON-
authorises laws with respect to quarantine and s 51(xix). so far as it is weALTH
(477) ('"m
~nd Toohey JJ: al 217-2Ig, per Gaudron J: at 2J4, pCI' McHugh J. S~C ~ls<J
Tlieopliall"us r tt"",1d & Weeklv Times LId (1994) 11Q C1.R IIl4 at 126. per
Mason CJ. Toohey and Gaudron JJ: :ll 146. per B"-,nn~1l J; nl 178-179. per
Vcane J: C"nlJtf~ \' The C"lIIlIIon"'-'il/lh (1994) 1R2 CUt 272 Ul 299. per
Mason CJ: ~t 336-337, per Deane J; Ul 387. pet' Gaudron J: l.wlge .. /luslra/io"
Broad{'(J$I!"!i Corporal;"n (1997) IR9 CLR 520 Jl 561562,
(4781 (In\) 146 CLR :'i:'i9 at 593594. Sl'~ Jiso C"e \' Th~ Com"!Oll\walil, (1979) 53
AUK 403 ~t 40g; 24 ALR II R Jt 129. p"r Gibbs J.
122 HIGH COURT [199Ci-1997
II COF A the plaintiffs claim damages for breach of their rights to religious
1496-1447
freedom, assuming it can he said that they have such rights and lhal
theIr hreach sounds in damages. It is not. howevet, relevant to a
detemlination whether the Ordinance was invalid because it was, m
THE
C",,,,,,,,- terms of s 116, a "law
religion".
for prohihiting the free exercise of
WHLTH
In Lamshed \' Lake, Dixon CJ, wIth whom Wehh and Taylor JJ
agreed, said that he did not "sec why s 116 should not apply to laws
made under s 122" (479). Similar statements ',','crc made in Teori Tau
v The Commonwealth (480), in Adelaide Co oj' fehoW/h'.I Wifne.lses
Inc v The COflllllomreallh (481) and in AlloT/)cv-Generu{ (Vier); Ex ref
Blark v The Commonwealth (482). However and as already noted, III
that latter case Gihbs J expressed some rcluctann:: 10 accept that
proposition. His Honour acknowledged the strength of the dicta in the
decided cases hut said (483):
those dicta arc in my opinion very difficult to reconcile \vith
the decision in R v Bemascolli ,",,'here it was held that the power
given by s 122 is not restricted by s 80 of the Constitution - see
also Spmll v Hermes" (citations omitted).
His HOllllur added (484):
"If s 122 IS limited hy s 116, the latter sel:lioll will have a much
larger operation III the Territones than m the States, f()f although
s 116 IS contained in Ch V of the Constitution which is headed "The
States' it is not expressed to bind the States."
The cases to which Gibbs J referred. namely. Bernasconi and Spmll
v arc cases concerned with provisions found in eh III of the
IICI'IIICS,
Constitution. I have aln:ady inJicatl::d that I sec no reason why Ihere
should be read into those provisions limitations which their terms do
not requirc. Moreover, if, to any extent, s 122 stands free of ell III it
can, 1Il my view, only be by reason of the critical slgnlficancl:: of
Ch III for the maintcnance of the federal compact (485). There IS
nothing which warrants special federal significancc heing attrihll1cd to
s 116.
Not", in Illy view, should s II () be read down hy referencc to the
i~191 L"II("hd L' Lak" (l'-J5l(1 '-J'J CLK lY'- m I--I-~ nlld ,C~ at 15l 15-1-, per Kino J Nl'le.
h"W~V(;L Kiu" r, C4ui\'(J(;alion in relalioJl to thi, 4unlion in S/mill " Herm,-.\'
11'1651 11~CLK226at250,
1~8()) (1%9) 119 CLR 504 ~I 570
('181) (194l) 61 CLR J 16m 12~. p~r Latham CJ: at 156157. lJ"r :VlcTi~m~n J
(4-82) 11 '!K I) 1-1-6 CLR 559 ~t 57(;, per Ham'ick CJ, al Ii 18. peT \hsOJl J: ~l 621. p<:r
[I,'lurphy J, and al O4':l.Ile"r Wilson J.
(-I-8~ 1 /:',\ I'e! Ii!{j('/'; (1981) 146 CLI{ 559 at 59,-S9..\
('18--1-) Ex rd Black (1981) 146 CLR 559 at 5'1-1-
(..\851 As to ,',--hich, 0<'<' Wil,WII )' Millislerji'" Ab(}n'_~illal & T", ''0 50'<111 {"IWlller Aft,'irs
II'j'J(,J 189 n.R I. Kahle I' Dir'-"'Io' (It'I',,I>Ii,: Prosuwi(}n,< 1,\'Sl-rJ (1996) Ix9
CLK 51
190 CLR 1J OF AUSTRALIA 123
consiueration that it is not expressed to bind the States. Rather. the II Co, A
19%-1~~7
consideration that. unlike other Australians. resiuents of the Territories
have neither a constitutional right to participate in the electoml
processes for which the Constitution proviues nor a constitutional right
THE
10 self-government is, in itself. a strong reason for reading s 122 as
CnM"'l,~'
subject to express constitutional guarantees and freedoms unless their WE.".TH
(-'llIo) A/tomey-Generalr Vin); Fx rei mad v The Commo/llreal,h (1981) 1ell'> eLf< 5S\I
at .'ilJ"-. per Gibbs J.
(4l17) R )' Public Vehides !.ian.,iIlM AI'f'~<l1 Trilm'wl ITIl5!. Ex 1'<lJ'tf Ausml!im,
Nal"mal Ainmys PI}'/.rd (1964) 113 CLR 207 ~t 225,
(4l1l\) Sec Boyd I' Uniln} SI'l/es (11\1I6) 11(, t:5 616 ~t 635, See Jiso Street' QIICfllsl"ml
[Jar !l.1,\(lciutiO/l (1\l1I9) 1611 CLR -'161 al 527-528. per D~~ne J; ~I 554. p~r
Toohey J; and ~t S09, per Gaudron J. Anrt s"",, ~> to th~ n~ed to interpr~t
lOllSlilutional gu~r~IlIe~.\ liberally, Rank of ;\iSlt' r The COIlllllo!HH'oIlh (I9-'1S I 76
eLI<. I at 349, per Dixon J; ClilniN-R(I,<.' \ The Commo/lwcalth (1\.184) 155 CLR
]9'> at 201-202, p~r Gibbs CJ, \-1~M>n. \Vilson, I:llt'lm~n. De~ll~ and Dawson JJ:
Aus!ralill!l Tapc M<l!llllilcw,'fl's A.uoc;mio!l Ltd \' The CmllllJm!l<;eulth (1993) 176
CLf< el80 at 509. p",r \-tason CJ, Bl~lman, D~anc and Gaudrnn JJ. Mutual Pool, &
St/II1Ft.\' Ltd" Tlte Common>\'elllih (1994) 179 CLR 155 "t Ig4. per f)",~nc and
Gauclron Jl: Georgiadis .. ,lu.<rrali"n mid O,'asea" Teleuilllllwmcali'lIIs
Corpolil/ion (199el) 179 Cl.R 297 at ~()J. per Mason 0, Deane and Gaudwn lJ.
m '>20. pCI' Toohey J
OW)) (1'14' 67 CLR 116 at 123. Sec also at 156, per \-kTicm~n J where it is suit! Ihal
.s 116 "imp"'",s a r~.'lriction 011 nl! !h~ IGg,islmivc powers of Pnrli::lJrlcnt"
i24 HIGH COURT [1996-1997
The plaintiffs contend that thl:rl: IS Of, pl:rhaps. that thl:rl: should
now be recognised a cause of action sounding in damnges for breach
of constitutional guarantces and fr~edom~. They argue that "thl:
Jnlcgrity of l:onstitutinnal entitil:ml:nts. whl:thcr articulatcd as rcstric-
tions on legislative or executive power, privileges or immunities or
positive rights. and whether express or Implied, can only be presl:rved
Jf appropriate and dTcctive rl:ml:uil:s arc availahil: for their brcach."
Anu they contl:nd, by reference to uecisions in other jurisdictions,
notably the decision of the United States Supreme Court in Bivens \.
Six UllkJlOlWI Named Afients o{ Federal Bureau o{ iVarcolics (490),
that, in all such cases, uamages arc the only appropriatc:: remcuy.
There are two malleI'S which should be noted with respect 10 the
plaintiffs' argument. hrst, it is only necessary lO consider the
argument as it rdates to s 116 and to the implied constitutional
freedoms of movement <lnd association, they being. in my view. the
only relevant limitations on the legislative power conferred by s 122
and, thus, the only liTeuoms \\"hich could conceivably have heen
infringed by the actions of which the plaintiffs complain. The second
matter to be noted IS that, as a l1l<1ttcr of logic, the plaintiffs' argument
nm only sueeeeu il anu to the extent that the constitutional prohibition
in question can only be vindicated by an award of tlamages unu, then.
only by an award made in an action for breach of that constitutional
prohibition rather than in an action for infringement of common lQW
righl~.
It is convenienl to turn first to s 116. By its terms. S 116 dOl:s no
more than effect a restriction or limitation on the legislative power of
the Commonwealth. It is not, "in form. a constitutional guarantee of
(4\.10) 0\.171) 40J US ~l\l\_ :"ow lhal a Bile", aClion cannOI be broughl again,t a federal
agency, only individllal agent,; Federal De!,"";1 bl511rWICC C"'f>olilI;"'1 I' Meyer
(19941127 La", EJ 2d ~Og al .122-.12'1_ As 10 Ihl: position in lrdand and Ne",
Zealand, where neitlwr Ihe Irish Conslitution nor Ihe New Zealand Hill of Righl\
~xpre,,]y pr,-,vid~s for r~m~di~,. 'e~_ resp~clivcly, Till' SItU" (Quillnl ,- Ryan
[t965] IR 70. and SIIII['S"" ,- AI/om"y-G"""rol iNZI Wmge"I'.\- Case) i1994]
~ NZLR 667
190 CLR 1] OF AUSTRALIA 125
the rights of indIviduals" (491). It docs not bind the States: they are H Cor i\
IQ%,1<l97
completely free to enact laws imposing religious observances,
prohibiting the free exercise of religion or otherwise intruding into the
area which s 116 dellles to the Commonwealth. It makes no sense to
THE
speak of a constitutional nght to religious freedom III a context in
CDM""'''
which the Constitution elearly postulates that the States may enact WFALTII
(49.:1) Set: l'"naally wi(h r~<;pc~t to (h~ award of ex~mplat).' damal'~s, (/U.'1l " 1111",
F"ilj,1X & So"s Pn' Lid (19661117 CLR ll~ ~( l~'J. U~-Il<), p'" T~ylor J:
at 1.:17, p~r Menzies 1: at 15.:1, per \Vinucycr J: at 160-161. pCI' Owcn J; AI,sll'o/ilin
C"".\'olidaled Pre."" ,. Ur,.11 (1966) 117 eLR t~5, For c~.\~\ wh"r~ e~~rnpb')"
damagc, have be~n aw~rded in adiun, of (r~,pu" (0 the per'on. ,cee F""lill \'
K<lIUf'rldi-, (]L)li2) lOR CLR 177; La",I;, COII'Ii"" (19871 16.:1 CLR I ~Ild, fo,- f"l,e
imprisonmenL 'C", Hildie v Mom:y (l763) 2 Wils KB 205 [')5 1-'1{ 7liR]: W,IIWIJ ,
;'Y{"r"I"dl (Jnd Cade (l971) 12.. C1.R 621.
(.:I'))) This ull"m,uive musl 1-,,, rcj~Cled, it rdating to the t,'st of chJrJct~ri,atioll r~tha
than (0 tes(ing: whcther a law infringes (h~ irnpli~d fr"~(t,,rn. Sc" e"nli!f" ,
Tlte Commot!weal/I! (1994) Ig2 CLR 272 a( 300, per \lu,011 CJ. Jt :18S. p"r
GJudron J,
190CLRl] OF AUSTRALIA 127
(SOl) Nali"'IIl'ide New.' (IY'l~) 177 CLR 1 at 95, See Jiso A",<lmlia" C"l'illll TeI""i,\';'1/I
I'll' !.IJ ,. The C""'''''''MC,IM (19'12) 177 CLR 106 m 21721~: Cllllliffe " Tile
C"mlllOlme"ilh (1994) 182 CLR 17~ Clt387
(SOl) Omliffe (1994) 182 CLR 272 at ~"o. referring to i1tromey-Gcllerol \' ulwrdla"
l'lewI{"'fJi'r\ lA'" 2} 11')90] I AC 109 at 2IU-28". per Lorrl Goff of Chin~lcy. S~c
also Tllc,,[!ilal!{)u,\' \' Herald & Wed!.\' Times Ltd (1994) 182 CLR 10" Jt 179, per
Dean~ J.
(5(1.') e",difl" \' {he CflJlJJJjo""eallh 1,199-+) 1:52 eLI< 272 al .140, per DCJJIC j, S,'e alsQ
n'~"f''''''lIIus \' Herald & W"dly rimes f./{t (1994) 182 CLR 10" Jl ]7').
(<;04) Sec IV"tl"'I"'ld,, /'k\l'-' 1'1." l./{I \' Will., (1992) 177 CLR I JI 51. per F1rmnan J
190CLRli OF AUSTRALIA 129
Similarly, different considerations may he hrought mlo piny where the Hen, i\
19'>6-1997
question is one of proportionality.
lL is necessary now to tum to the terms and operation of the K~"Gr'K
Ordinance. Sections 6 <lnu 16 conferred powers on the Chief Protector ,
Tm_
and, later. the Director which, if exercised, operated Jircctly to prevent COMMON
freedom of movement and of associntion. Moreover, they were \'iEALTH
C'i(5) Sec. Mllin,'''''1 \' :VI/bate" 1',1' 1.ld (1971) 17 FLR 14t nt 167, per HI,Kki:>"m J:
AI",,'lgll!at I.el'''! Rll'hlS l!mu""1II t",. \. So",I, Ausmdia (HilldIlUlrs!> hi",,,!
e"e) (199-') 64 SASR 551 at 555. per tkbdk J
(S06) (1912) J-' CLR 366 at J6'),
190 CLR 1J OF AUSTRALIA 131
moral grounds, hut it does not come within the prohihition of s 116". Hen, A
1<J96-t<J<J7
Moreover, as Barwick. CJ pointed out in Atforney-General (Viet). Ex
rei Rlack v The COJrlmomt'calth (507), S 116 is directed to "the making
of law", not "the administration of a law".
THE
There arc two matters, one textual, the other contextuaL which in
Co".''''''-
my view, tell against construing s 116 as applying only to laws which. WHLTH
He "r. ,\ The mailers to which n::fcrcnce has been made compel the
1996-1997
conclusion that s 116 extends to laws which prevcnt the free exercise
of religion. Am! the need to construe guarantees so that they are not
circumvented by allowing to he uone indircctly what cannot be done
rll"
C()MW'-~
dnectly has the consequence that s 116 extends to provisions which
wEALTH authorisc acts which prevent the free exercise of religion, not merely
provisions which operate of their own force to prevent that exercise.
Agmn, the lJllcstion whether the Ordinance authorised acts which
prevented the free exercise of religion involves factual Issues which
cannot presently be uetennined. However, if Aboriginal people had
practices anu beliefs which are properly characterised as a religion for
the purposes of s 116, and if as would seem likely, those practices
were carried out 111 association with other members of the Aboriginal
community to "'ihich they belonged or at sacreu sites or other places on
their traditional lanus, removal from their communities and their
traditional lands would, necessarily, have prevented the free exercise
of theIr rehgion. Whether or not that was the case remains to he
dccidcd_ But on the assumption that it was, the question arises whether
the Ordinance was a law "for prohihiting the free exercIse of any
religion
In A,dcfuide Co of lehovahs Witnesses Inc (513), Latham CJ
ohserved in relation to s 116 that "[tlhe word 'for' shows that the
purpose of the legislation in lJuestion may properly he taken mto
account in determining whether or not it is a law of the prohihited
character". In my view, that is not entirely accurate. 111e use of the
word 'for" indicates that purpose is thc criterion anu the sole criterion
selected hy s 116 for invalidity. Thus, purpose must be taken mto
accounT. I-'urther, it is the only matter to be taken into account in
determining whether a law mfringes s 116.
In emphasising that purpose is the criterion selected by s 116, I uo
not overlook observations to the efTect, for example, that s 116 is nol
infnnged by laws which "prevent persons or bodies from
disseminating subversive principles or uoctrincs or those prejuulciallO
the defence of the Commonwealth or the efficient prosecution of tht:
war' (514) or that "[ijt is consistent with the maintenance of religious
liherty for the State to restrain actions and courses of conduct whieh
are incunsistent with the maintenance of civil governmenl or
pre]udlcial to the continued existence of the community" (515). Those
statements are undouhtedly correct. However, they uo not stall: the
criterion of invaliuity selected by s 116. It is purpose. not the
(~I.\)(1'J4-')67CLIl.I16at H2,
(514) Adelaid" Co ()rkhrll'rli, ',I lVime"ses 1m v Th,' Comrlwllw",ilrh (194,,\) 67 CLR j 16
al 119. per Rich J Sr~ nlso nt 1.\2. pCI' Lnthnm CJ: at I'i). pn Stmkc 1: nt 160-
161 per \l,'jlliam, J
(515) Adrl"id" C() ()(./dwl'IIlr'.I' Wime,lse,I' h" .. The C'''''"IOt!lI'e"lth 1194.'\) 67 CLR 116
,II I 31 p~r l.alharn CJ.
190CLRlj OF AUSTRALIA 133
satisfy [that] description lit] must have that objective as its express and
... single purpose", If that is correct, it is because of what is involved
in the notion of "'estahlishing fa] religion". Certainly, that notion
involves something conceptually ditlerent from "impOSIng
religious observance", "prohibiting the free exercise of any religion"
or requiring religious tests "as a qualification for. office or public
trust under the Commonwenlth", they heing the other matters against
which s 116 protects. Moreover. s 116 is not, in terms, directed to laws
the express and single purpose of which offends one or other of its
proscriptions. Rather. its terms are sufficiently wide to encompass any
law which has a proscrihed purpose. And the principles of
construction 10 which reference has heen made require thaI, save,
perhaps, in its application to laws "for estahlishing ta] religion",
s 116 he so interpreted lest it be robbed of its efficacy.
It IS convenient now to turn to the Commonwealth's plea that the
purpose of the Ordinance was ""the protection and preservation of
persons of the Ahorlginal race" and the issues raised by Q 3. Clearly.
a law may have more than one purpose. Similarly, a particular purpose
may be subsumed in a larger or more general purpose. TIlat tattcr
proposition is well illustrated by the present case. It is clear from the
terms of the Ordinance that one of Its purposes, evident from the terms
of s 16, was to remove Aboriginal and hair-caste people to and keep
them in Aboriginal reserves and institutions. That purpose is not
necessarily inconsistent with the more general purpose which the
Commonwealth asserts. And neither purpose is necessarily inconsist-
ent wllh the purpose of removing Ahoriginal childrcn ['rom their
families and communities, therehy preventing them from participating
in cOlnmumty practices. lndeed, in the ahsence of some overriding
social or humanitarian need - and nonc is asserted -- it might well
be concluded that one purpose of the power conferred hy s 16 of the
Ordinance was to remove Ahoriginal and half-caste children from their
communities and, thus, prevcnt thclr participation in community
practiccs. And if those practices included religious practices, that
purpose necessarily extended to prohibiting the free exercise of
religion,
As with the implied freedom or political communication and the
implied freedoms of movement and association. a law will not he a
{5161 Addalde Co ofJelwmll's 11'ilne\'\eT tlJ< I' The CmnmolJllcallli ()')4Jj 67 eLI<. 116
~t I n, per L~lh"!1l G.
(517) (In)) 146 CLR 559 at 57\.1.
134 HIGH COURT lISl96-1997
-
19%-1'197
Kl<l'GER
ing thaL In terms, it does just that or that it operates directly with that
conSl:ljucnce, if it is necessary to attain some overriding public
purpose or to siltisfy some pressing social need. Nor will it have that
TilE
CtNW).'-
purpose if it is a Jaw for some specific purpose unconnected with the
\\E,\LTII free exercise of religiiln and only incidentally atleets that freedom. It
is not pkaded in the present case either that the Ordinance was
C,uJ",")
necessary for the protection or preservation of Ahonginul peopk or
thnt its purpose was a purpose unconnected with the liTe exercisc of
rcligion. The plea is, thus, no answer to the plaintiffs' claim that the
Ordinanc~ was Invalid hy reason that it infringed s 116.
Were the Commonwealth to further amend its defence to assert that
the purpose of protecting and presl:rvlng Ahonglnal people was
unconnected with the purpose of prohibiting the free exercise of
religion. a question might arise, If the pka werl: to he maue good.
whether the mterference with religious freedom, if any, effected by the
Ordinance was appropriate and adapted or. which IS the saInt: thing,
proportionate to the protection and preservation of those peopk. And
us the purpose of a law is to he determined by reference to . 'the facts
v,'ith which it deals" (5Itl), that question would necessarily have to he
answered hy reference to the conditions of the time In which it
operated. However. the answo.;r to the question depends on an anulysis
of the law's operation, not on subjectivc vicws and percefltiolls.
It follows that the matters pleaded by the Commonwealth and
referred to m Q 3 arc not rckvant to the: ljuestion whether the
Ordlllance mfrmged s 116. Whether the Ordinance "..as invalid on thar
account is not a matter th"t can presently be determined
Application of lilllilariOiI laws
The seventh question reserved by the Chief Justice asks whether the
plaintiffs' claims for damages are statute-barred and, if so, by what
statute. r have curlier indicated that, in my view, thl:re is nl)
constilutional cause of action as asscrted by the plaintiffs and, thus.
Q 7 only arises in relation to their common law claims.
There are certain matters whieh should be noted at the outset. First.
although the Parilalllent has power. pursuant to s 78 of the
Constitution, to ""make laws conferring rights to proceed against thc
Commonwealth or a State in respect of matters within the limits of the
judicial power [of lht: Commonwealth]", it has not at any stage
enacted a general statute of limitations with respect 10 those mailers.
t-:or has it e:'xen:iscd the express incidental power l'onfern:d by
s 51 (xxxix) l)f lht: Constitution to enact a gmnal statute of limitations
with respect to those or other matters falling within the judicial power
of the Commo!l\''-ealth. further. no general limitation law has heen
(51~) AI/III/I" Yates & C"I'/1 Lid \' Vef:ewb/e Sad.f C"lIImirla (1')45) 71 CLR 37 Jl 68.
P~I [,mham CJ
190 CLR II OF AUSTRALIA 135
(51',)} john R"bel'lsOII <I.: Co Lid v Ferguson hOlistiil'lUEr.< Pr,' Lrd (1973) 1~9 CLR 65
J( 7'J. per .\1enlies J~ J( ln, per Gibbs J~ Jt 'n. pn Mason J,
(521)) (1967) 116 CLf< 353 ~I 355-35G. Se~ ~bo AJu-'!UIIW I' The C"mmoliwelilih (1937)
57 CLR .)I~ a( 547-54x, p~r Dixon J: "t ,<;50-5.'11 p~r b,,!( and \1cTi~m~n JJ;
Brell>'i"iilOi1 \' (;odle",,,,, (19xR) 169 CLR 41 ill II R. per Brcnn"n J; al IS 1-152,
f'<'r Dawson J
(.'i~I) (1%7) IIG CLI{ 353 J( 3'i5-356,
(522) However, on this poin! sec The C'JI/""Oi1H',,,i!th I' Mm'ell (1997) 71 ALJR 1102.
pn (;~udron J
(523) Section 80 provides: "So tar as (h~ laws or (h~ Commonwealth ar~ not applicahk
or so f~r;1.\ Ih~ir provision:; ar~ insufflci~1H to CJfry them imo dfect. or to provide
adc'-Ju~tc n:",~Jil"' or punishJll~nl. lh~ common law in Australi" "-, rno(lifi~d by
the Constitution Jnd by the ,tJtute IJW in force in the State or TcrrilOry in whic],
]36 HIGH COURT [1996-1997
(52]) emU
the Court in whkh the jurisdiction i, <,x<,rci,ed is held <;hall, so far as it is
applicable and not inconoi,tent with the Con<;litution and the laws of the
COllllllonwealth, govern all Coun, ex<'reising federat jurisdiction in the <,x~rci~ or
their jurisdiction in civil and criminal matte,,"'
(.'i24) See The C"mmmn','fairh '" Melt'ell (1997) 7\ ALJR IIOZ, per Gnudron J,
(525) See Mil!!uire l' Simpsml (1977) 139 CLR 362,
190 CLR IJ OF AUSTRALIA 137
(526) See, 26(<:) of the AU.' llllerpre/ali"n Act 190t (Clh) which J",fin"" "Coun
exerci,ing ft'tlera1 juri,Jidion" to m",an "any court wilen ",x",rcising federal
juri,diction" and 10 include "kJeml court"';' 26(b) ddin",s "Fo:d"'ral Court" to
mean "the High Coun or any coun creat",d by Ih", Par[iam",nt". See also Cohen v
CO/len (1929) -42 CLR 91 al 99, per Dixon J: Musgruve I' The Commonwealth
(1937) 57 CLR 514 al 53[-532, p<:r Latham CJ: Bainoridxe,Hul>ker v The
Mini.<ler for Trade Wid Cus/llms (t958) 99 CLR 52t at 536-537, per William, 1;
Pedenol " Young (1964) lJO CLR t62 at 165, per Kino J: at t67-168, per
MctlJ;ies J; at 169. pn WinJ",y",r J: at t71, per Ow",n 1.
(527) Sce. ego Pedersen v Young (1964) ItO CLR 162 at 165166, per Kiuo J: at 166,
per Taylor J; at 170-171, per Owen J; Hargen v Stule GOI'ernmflll (lI.<umll('e
()1fice (Q) (19K!) 154 CLR 318 at 322-323, pn SI",pllen J: Fielditlfi v Doran
(In4) 59 ALJR 511 at 514: 60 ALR 342 at 346, per Dawson J.
(528) (1991) 174 CLR I at 51-52.
(529) (\964) 110 CLR 162,
138 HIGH COURT [ 1996-11)97
K~L'f;[R
remains to he considered. However. even if they are "picked up".
other anomalies may well arise if s 79 is construed as "picking up"
"
THE
State lind Tcrritory laws hy reference to the location of the RegIstry in
C''-''M''~
'Io'EALTH which proceedings are commenced.
It has also been suggested that s 79 of the Judiciary Act operates to
"pick up" the laws of the State or Territory in which an action is
"heard and determined" (530. And. bel:ause actions may be heard in
one Statc or Tcrritory and judgment delJvered in another. it has heen
said that s 79 operates to pick up the laws or the Stilte or Territory in
which thc Court sits to hear the matter (5321. And, in Parker t' The
Commonwealth (533), Windeyer J seems to have entertained the
possihility that s 79 might operate to pick up thc bws ur the State or
Territory in which judgment is delivered. It cannot be doubted that. if
s 79 operates in any of {hese ways, it may well produce' 'capricious
result[s]" (534). Morcover, as Windeyer J remarked in Pedersen v
Young, answers to the various questions raised \-",ith respcct to s 79 m
its appliCation to proceedings in this Court which are "logically
satisfying [arc] not readily apparent" (535). Even so. to construe s 79
as not applymg to this Court would be to risk grcater anomalies and.
perhaps. more capricious consequences than those which result from
its apphcation. At least that is so if, as has hecn assumed, s 80 has no
role to play in dctennining whether an action is statutc-harrcd.
As already indicaled, s 56 of the Judiciar\' ACT does not. in my vic,",".
impliedly direct that the law of the State or Territory lTI v.'hich the
events m question occurred should he applied in actions against the
Commonwealth. But evcn if it does, there is no like implication to be
drawn in cases in which the events did not occur in a State or
Territory, a possihility acknowledged hy the tenns of s 56(])(c). And
there is no provision giving rise to an implication of that kind In an
aclion hetween subject and suhJect, as m:curs when procccdings are
tHought in this Court bctween residents of different Slates (536).
(5JOl Sec Limila/ioll 040 !')(,9 (NS\V1. s n ~ml Clloice of LUll' (Limilillion Periods! ,1u
1'193 (~Sv.."L Choice {!f l.m" (limitalioll Periods! Au 1993 (Viet): {.onilallm, of
iln;ml.' Ac/ 1\J36 (SA). s 38,>,; l,imlltUirm of ildioliS .'1<'1 197cl (Q1. , 4J,\ and
Choice or {.{l\1 i/.i",irmi"" Period,) Au 1')\J6 (()I: C/",i,'e or l.aw IL,lllitol;",1
Period,) ,1e1 1994 (WA): Limil<l/i<m .'1,.'1 1974 (T~,l. ,S J2 . \J2t>: Ch"ice or rail
I Limitat;ml l'ai"dsj ACI 1994 {l\'TI: f,imilalioll Au 1985 (,ACT). " 5-';_';7.
{5:-I) f'ederun )' Young (J 964) J 10 ell<. 16~ Jt 1(,7_ pn \1~nl.ies J
{'i3~) See DepUl)' rcdcwl Commissioner "rTaxalioll \. Drmt'll (1 ')581 1no CLR 32 at ."1.
[J<:r Dixon CJ: Forkn C' The COIlIllIiJIIII'Utllll (1965) t 12 CLR 2'15 at J06, p~r
Wind"yt:, 1: .foh" RoiJal.HJII & Co Ud ,. Fergusm. Tr,,,,,rfrmners l'n' Ud (197.1l
12'1 eLI' 65 at 8081. [J<:r \knzie., J: at 88, [X'" Gibbs J; ~t '15. per !I..hsnn J.
(5JJ1 (I %5) 112 CU, 295 at J()6
(.:'U41 fJreavi"l'lo" L' Godlnll"'l (1988) 1(,9 CLR 41 at 1~ I pCI' D~\\,;()n J
(5J511'N!NSCIi v YtI""l: (19M) 110 CLR 162 at n{l,
15J6) ConstiWlion., 7';(i\).
190CLRlj OF AUSTRALIA 139
(537) Sec. wilh rCSr~d to lhc Jifkn;nl vi~w, a, 10 the operalion and efkcl of s lt~ of
the Con,lillltion. fjre<lv!II!!/(irl v Codterrl"'J (19HH) lll9 CLR 41
(53H) Sec Depulv Federal Commi"sioner ,,(Tawrilll! I' Hmw/I (1')5S1 100 CLR 32 al 39.
per Dixon L/'eder"UJ I' Y"IWX (1%4) 110 CLR 1112 al 11l9-l70. pcr \VinJcyer J
aml BrearinxuIH I' GodlpJJJ(lJI (lSi::;::;) J6') CLR 41 at H7-Hi>, per Wiholl am]
Gaudron JJ and the cascs lhere c'ilcJ
(539) I lng, 169 CUt 4-1
]40 HIGH COURT [ 1996- 19')7
He OF A R W Miller & Cn (SA) Pry Ltd (540) 10 suggest thai. In thai rcspL:Cl,
1996-1Y97
~
RreavilJgton \' God/ell/an was wrongly ucciucu. (541) Thus, the
KRL{ilR substantive len\' to be applied in this case is the law of the Northern
, Territory, as [Cljuircu hy the choice of law rules of the Australian
THE
C<l\1MON-
Capital Territory which are "picked up" hy s 7lJ of the Judiciary Act.
"'TALTH And prima facie, at least, s 79 also "picks up" s 56 of the Limitation
Act 1985 (ACT) (the ACT Limitation Act) which provides that:
"If the suhstantive law of another place being a State, another
Territory or New Zealand, is to govern a claim before a court of the
Territory, a limitation law of that place IS to hL: n::gan.lcd as part of
that substantive law amI applied accordingly by the court,'
The plaintiffs contend, hy reason of the reference in s 56 of the
ACT Limitation Act to "a court of the Territory", that that provision
relates to cOUl1s of the Australian Capital TI.:rr1tory and, thus, cannot
hI.: applied to prol.:eedings in this Court. In support of that proposition
thl.:)' rely on the statement hy Kitto J in Pedersen " YOIlIlg that s 79
"does not purport LD do morl.: than pil.:k up State la\vs with their
meaning unchangl.:d" (542). They also rely on COli/missioner oj Sramp
Duties (NSW) v Owells (No 2] (543) in which it was said:
"Whuher or not s 79 applies to the appellate JUrISdICtion of this
Court, it is no part of its purpose to pick up, so to speak, a provision
of Statl.: law imposing on State courts such <l function as that
assigned to them hy s 6(1) [of the SlIitors' FlIlId Act 1951 (KSW)]
and convert it into a provision imposing a like function on federal
COUtts."
There may be statutory provisions couched III terms which make it
impossihle for them to be "picked up" by s 79 of the Judiciary Acl.
Simllarly, there may be provisions which impose functions which are
heyond the reach of s 79. Even so, I see no reason why s 79 cannot
"pick up" limitation laws or other statutury provisions merely hecause
they are expressed in tenns applYlllg specifically to Stale or Tenitory
courts, RatheL as Gibbs J noted III John Rohal.I'OI] <.~ Co Ltd ~.
Fergu.l'On Transformers Pty Ltd (544):
If the lav,'s of a State could not apply tf. upon their true
construction ... they related only to the courlS or the State, it would
seem impossihle ever to find a Stale Jaw relating to pro<.:cdure.
(545J jolin NO/Jerl.HIII & Cli Ud \. Fng"",,, T","s!imners Fry Lrd (1Y13) 129 CLR 6_~
al 95. p.:r Mason J
142 HIGH COURT lI996-1997
{5461 flusiralillll C"f,ital reln/si"" PI.' Ltd " Ti,e CW>iIllI",we"lth (199='.) 177 CLR j O(i
at 2-16.
(.'i47) L,,,,ge \. Aus/wli,m BmaduHllIl1' Cor/II'ral/oli (I'N7:> 1~') eLI< .'i:?11 al .'i('(J-Sfi='..
(54~) uUI):e (1997) I ~9 CU, :ill! m :i59
(S49j Tile 191R Ordinance ,va, rq,eakd hy the R-d/im' OrJi",,,,ct I'J5J (~TJ "illl
ciTed from n \lay 1957
190 CLR II OF AUSTRALIA 143
It was not until 1922 that the Northern Territory had any
.'I(Hugh J
representation in the House of Representatives (550). Moreover, its
member was not given a vote on any question arising in that House. In
1936, the member \vas given the right 10 vote on any motion for the
disallowance of any On.linam:c of the Northern Territory anu on any
amendment of such motion (551). [n 1959, this right was extended to
any question "on or in connection with" a proposed law that was
determined to relate solely 10 the Northern Territory (552). It was not
until 1968 that the member for the Northern Territory was given the
same "powers, immunities and privileges" as those enjoyed by
memhers representing State Electoral Divisions (553). Furthermore,
the Northern Territory had no Senate representation until the
enactment of the Sellate (Representation oI Territories) Act 1973
(Cth), which came into force on 7 August 1974. Indeed, it was nOI
until 1977 that the residents of the Northern Territory finally received
constitution'll as well as democralic recognition by being given the
right to vote in a referendum 10 amend the Constitution (554). By then
the 1911:.: Ordin'lnce had long been repealed.
As the foregoing account shows. at no relevant time were the
residenls of the Northern Territory part of the constitutionally
prescrihed system of government. Nor. as the second paragraph of s 24
and ss 25 and 26 of the Constitution and s 15 of the Commo/lwealth
Electoral Act 1918 (Oh) made plain, were the residents of the
Territortes "people of the Common\vealLh" for the purpose of
s 24 (555). Moreover, at no time during the life of the 191 I:.: Ordinance
did an "Aboriginal native of Australia", who \\'as resident in the
Northern Territory and subject to the 191 I:.: Ordinance, have any fight
to vote in federal elections (556).
For these reasons. nothing in the Constitution implied that the
He OF '" plaintiffs had any freedom or immunity from laws affecting their
19%-1997
common law rights of association or travel during the life of the 191X
KRl'GER On..Iinance.
" Accordmgly, I reject the plaintiffs' claim that the 191 8 Ordinance is
T". invalid because it burdened their constitutionally protected freedom of
C[).\1M()~
""'lTli association and travel.
In their statement of claim, the plaintiffs also claim that S5 6, 7 and
Gumm,'wJ
16 of the 1918 Ordinance and s 67, in so far as it conferred power to
make or amend relevant regulations, were invalid because those
sections authorised acLs which were contrary to an Implied
constitutional right to freedom or immunity from any law or executive
act that constituted or authorised the crime against humanity of
genocidl:. The plaintiffs claim that the United Nations' Convention on
the Prevention and Punishment of the Crime of Genocide (557) (the
Genocide Convention) gave effect to a fundamental rule of mtlT-
national law and that s 122 of the Constitution docs not authorise a
law thJt would breach such a rule.
However, it is unnecessary to deal with the cotlstitutionJl point. The
191X OnJinance did not authorise genocide. Article II of the Genocide
Convention relevantly defines genocide to mean certain Jcts
'"committed with intent to destroy, in whole or in pan, J natiorwl.
ethmcal, racial or religious group, as such". The acts include
'"[i]mposing measures intendl:d to prevent hirths within the group"
and "[fJorcibly transfcrring children of the group to another group".
There IS, however. nothing in the 191 g Ordinance that could possihly
justify a construction of its pf(wlsions that would authorise the doing
of acts "with intent to destroy, in whole or in part" the Aboriginal
race.
Accordingly, I would also reject the plaintiffs' claim based on the
Genocide Convention.
The questions In the actions should be answered in the manner
indicated in the judgment of Dawson 1.
(557) t;r-; G<:n Ass, Oft Rec, ~rd Sess, Re,olmion 174 (AlI~Ol (]V4H). Th<: Convention
w,,", r~liried by ,"'USlr~lia on 8 July 1949 and enl",,,d into fore'" on 1~ J~nuaf}'
1951 No kgi,Jation ~nads lh" Convention ""' pan of Australian law.
190CLR IJ OF AUSTRALIA 145
removal and detention of her infant child). These acts are said to have HeOFA
hcen committed against them in the Northern Territory (the Territory)
and to have been tortious and in breach of what arc asserted to he
individual constitutional rights. The tort upon which the plaintiffs rely
-
19961997
KRUGER
,
THE
is identified in the statements of claim as wrongful imprisonment and
deprivation of liberty. There is no pleading of any other action 111 tort.
CO""",,
,",'Menl
The first alleged act of wrongful removal was in 1925 and the last in
1949. The alleged wrongful detentions are said to have continued for
various periods, the last ending in 1960. The law relied upon hy the
Commonweahh in answer to the tortious acts complained of is the
Aboriginals Ordinance 1911S (NT) (the 1918 Ordlllanee). The 1918
Ordinance was amended on numerous occasions (558) and repealed by
s 4 of the Welfare Ordinance 1953 (NT) (the 1953 Ordinance).
By the Northem Taritory (Administration) Act 1910 (Cth) (the
Admim.stration Act), the Parliament created a regime for the
administnltion by the Commonwealth of the Terrilory. In particular,
s 13(1) of the Administration Act provided that, until the Parliament
made other proVIsion for thc government of the Territory. the
Governor-General might make Ordinances having the force of law in
the Territory (559). The designation of the Governor-General meant
the Governor-General acting with the advice of thc Pcdcral Executive
Council (Acts Interpretation Act 1901 (Oh), s 17(f). It was pursuant
to this authority that the 191 IS Ordinancc was made hy the Governor-
General on 12 June Ell IS.
Section 07 of the 1918 Ordinance empowered the Administrator
appointed under s 4 of the Administration Act to make regulations for
the effectual carrying out of the 1918 Ordinance.
The plaintills seck damages and declaratory relief. In particular,
they seek a declaration of invalidity of ss 6, 7 and 16 of the 1918
Ordinance and. in so far as it IS purported 10 confer power to make or
amem] certain regulations of whieh they complain, of s 67 thereof.
They also seck a declaration of the invalidity of s 13(1) of the
(SSH) AINm!"",,/., Ordi"ance I'in (NT). Aho'igl""ls Ordi'lli/ice 1924 (NT). .4.b"ri!!inall
()rdim",ce (N" 2) 1924 (NT), Ahorit.:IJla!.' Ordinance tnS (NT), Abo,.,t.:i""I"
Ordinance 1927 (NT), Aborigimd.' Ordi""''''e 1928 ('H), A[wnt.:i'luls Ordinance
(No 2) tnH (NT). Ab"rit.:i"al, Ordinance 1930 (NT), "'bonginals Ordinance
1\,133 (NT), Abor'!,'nal.\ Ordinance 1936 (l':T). Aborit.:'llals Ordinance t937 (NT).
Ab"ri!,',,,,!__ Ord'",,,,,'~ ilVo 2) 1937 (NT), Aborit.:i"als ()rJirwlJt'e 19-'9 (NT),
Abong"wl., Ord''''l!lce 1941 (NT), Abont.:ill"I,' Ordinallce 1943 (NT). AI"'ri!!ilJa!'
Or"'",,,,,e 1'i47 (NT!, Almrigillills Ordinallce J9S3 (NT). A!iongi,,,,!s Onli~ance
(.'-ili 2j 1<).~3 (NT)
('iVI) The Adlnini,lfntion Ad wa, amended ,jgnifl<~ntly hy the iV"nlr"m Tari/or)'
(Admini,'lm/illlJj h'l 1947 (Cth). This eswblished a Lcgislative Council for Ihe
Territo!), and ~nd(Jwed il with Ihe power 10 make Ordjna"n~e, for Ihe peae~. order
and good gllVemmenl of lhe TCfI'ilory. Asscnl of thc Administralor was requiITd
and th~ G(Jvemor-Geneml h"d the powcr of disallowancc. Suh,e'luent
al]1t'ndmenl,!O the 19111 Ordinance and lhc 1953 On.!inam:e wert' made under thi,
ncw'y'lerll.
146 HIGH COURT [19%-1997
(5MJl Kruxer \' The C"nrmmmeallil (t~()51 W ALJI{ 885 'II gS9
(5611 Sec A co 1111.\'</('1) (1~l(4) 156 CLR 5-'2 at )R4.
(56ll Rcproduc~d h~r~ ar~ the question" rcscrvcd in Kru!!rr \' T"~ C""J1lI!!!",",'allil The
<juc,tions in liro\" \' flle Cummol1llw'!lh arc' not n,atl'rially difkrent
(.~63J I(971)4U3 L:,',; -'88,
190 CLR 1] or AUSTRALIA 147
(56,,) SllIIps"'l ,. Al/omnGeneral (;\ILJ (n"il:"I1I" Co,e) [199--1] 3 :---:ZLR 667 ut 702:
dul70'i
(5651 .fm"".' v The Comm"rl\\ca!lh (t939) 6~ CLR 339 Jt 3G9-37CJ: AhCIiIll,'ck I' Tlte
Commoml't.'"lt" (19471 75 CLR I JI 19: l,'e!II'I!ialoo !'r\, Lid l' lile C"IlIlIIorn,'mltli
(1'l5~) H5 CI.R 545 al 567-568: iVouhem Tantor\' v Mel/gel (IL)')5) 185 CLR 307
at 350-353. 37~-3n. tn ~~nain ~ir~uIll'tJn~~, rn~rnb~r 'lal~' Illay b~ tiJbk 10
provide reparation t()r d::unJgc su,tain~(t by individuuh by r~a>on of breach by
member statcs of Europcan Union b,,': '''~ Thne Ri\'elS Olsn'ici Cni!W/!1' Balik
01 EIlX/""J fi'io 3 J [19'l61 3 A It ER 558 at 622-625.
(566) Sec Flinl!' Th" C""''''''''H'e''!th (1932) --17 CLR 274: M('[)mwld r I-I"'o,-ia 11')371
58 CLR 146
(5671 Balik o{}"SIY \' Til, C()/III>wm\'e"llh {194S) 76 r:t.R t ul 3.:1<)-35()
(5681 Sired r Quem,lau" Bar A""",itllio!l (1989) 168 CLl{ <Hjl at ,,85-486. 502503,
541 See also Cmdifle I' The ('ommolHH'allh (!<)L)<f) t82 eLl{ 272 Jt 326-327 II
ha<; yet to h~ '~lIled whdha:; tl7 imposes a restl'Jint upon federal Icgi,>lnlive ()I'
executive nction, und whdhcr Stute ~dion indude, Ihe enforcement of common
bw I'ules in a I'riv~te actioo: cf iVrl<' r"d: Fillies C" j.' SU/!i\WI 11964) -'76 LS 254
JI 265: Tribe, AJlleri~a" ('()n'lif!ll;,m(lll~"", 2nd ~ll (1988). ~ 18-6
(569) cf Am~r. '"Of Sov,'reignty and r:cdcorali,,,," Yale I.m>, .Journal vol 9(; 119~7)
1425. al pp I.:IS5- J 486,
(57(J) Davis and Pierc~. ,\dillilJislrali\'t.' I""", Tre"lis~, :lrd ~d (19'i4). vol 3, ~19.5,
Prcviuu\ ~riljc'i,ms by Professor Davis appear [hmughnut his work. COJlS/illlli(ilJal
IorlS (1984). '""1' I'P ISI-lI()
{.~71) 28 I.'SC ** 1346.2671-2680.
{'in) 42 L'se *198-'.
14R HIGH COURT [1996-19'::17
H COl' ,\ olTicials acting under colour of State law. The Supreme Court recently
1996199i
declared that (573):
"lWJe implied a cause of action against federal officials in Bil'fm
T';F In part becuuse a direct action agalnsl the Government W8,S not
("""nN- availahle." (Emphasls in originaL)
WlAUH
The treatment hy the Judiciary Act of the tort liahility of the
(iemm<lw J Commonwealth has heen quitl: different to that of the (]nllcu Slales.
So also is the relationship between the common law and the federal
Constitution (574). Moreover, the plaintiffs claim that their Rivens
actions against the Commonwealth would escape an),' time limitation
period woulJ noL hold In the United States. It has hl:cn held Ihm
Bivens cremes no such class of perpetual kdcralliabilities (575).
The plaintiffs thus face fomlidahk obstacks in propounding an
arrirmativc answer 10 question 2.
The questions are SD drawn that question 3 only arises if there is an
affirmative anS\\'Cf to question I or question 2, and questions 4, 5 and
6 only arise if there is an affillTlative answer 10 question 2. The
remaining question. question 7, is as follows:
"7. On the facts pleaded in paragraphs 1-6 of the Amended
Swtement of Claim -
(a) are the Plaintiffs' claims (or any of them) for damages for
wrongful imprisonment and deprivation of liberty stalute
harred'?
(h) hy what statute'!"
The focus of the attaek by the plaintiffs is on the validity of ss 6. 7
and 16 (,f the 1~18 Ordinance. As the argument developed In oral
submissions, it hecame apparent that lilth:, ii' any. Hnportancc atlachcll
to any oj the regulations made under the power conferred hy s 67
thereof. If the allack on validity fails then it would follow thatlhe aus
complained of were not wrongful. The consequence then would be Ihat
question 1 would be answered in the negative and that. in due course.
each action would he dismissed. The remaining questions either would
not arise or he moot and so not permit of an answer hy this
Court (57fi).
(573) Fnla,,1 Del'lI.\'il Illsurance Corporatio" ,,/.hra (19'1.t) 127 Law Etl 2d 30S at
323, This case hold, lhal Bi,'m.' nClions run against intlividuals not fetler~l
~gellcie". In lhe present nctions the plainliff.' sue th~ Commonweallh ilself. not
any ofticers of (he Commonwealth.
(57.t) Lange \' A'JS/mli,,,, Bro"dea.<lilli! C"rporali"" (1997) I S'1 CLR 520 at 5f.2-56.t.
(575) Le(lIlhard \' Un"ed Sl<lle" (19RO) 63-' F 2d 5'19 ~(612-613; McSllrel.l r HUlehi,,,,,,
(l9S7J 82:1 F 2tl tom. SeliC/' l' Unf-)C/' 11995) 881 F Supp 32-' nt 327,
(5761 Nonl> (;1IIwl"")<I Ab"rigilliil C"'powli"" .. QueelislaHd (1996:1 185 CLl<. 595
m612-6B. 642-f..t3.
190 CLR 1] OF AUSTRALIA 149
(577) The office of Chief Protector of At>orig:in~ls was replan'd. by lhe ,\hori!:in"h
Ordinance t~H\J Il\TJ. Ily thaI of lhe Director of N~tive Affairs. j\'othing ror
presenl purposes turns upon this change
(578j These defmilinns were ~m~mktJ 011 5everal oem,inn" hqly Ill' :; J of lhe
Ahoriginals Ordimm,e Ii"" 2) 1953 {l\T), which omilled any definilions of "halr-
taSlc" "ml ",bslinlled J new definilion or "Allori1!inar'
150 HIGH COURT r19%-1997
IlCoFA facilltate hy all reasonahle means in his power the taking into
19%-19n
custody of the Aboriginal or half-caste.
(3) The powers of the Chief Protector under this section may be
exercised whether the Aboriginal or half-caste is under a contract of
THE
COM.\10N-
employment or not.' ,
WEALTH
Section 16 conferred upon the Chief Protector powers of removal 10
any reserve declared by the Administrator to be a reserve for
Ahoriginals for thc purposes of the 1918 Ordinance and powers of
removal to any '"Aboriginal institution". That tern} was defined in s 3
as mcamng:
"'any mission station, reformatory, orphanage, school, home or other
institution for the hcnefit, care or protection of thc Ahoriginal or
half-caste mhahitants uf the Northern Territory, declared by the
Administrator to be an Aboriginal institution for the purposes of this
Ordmance. ,
These powers did not (s 16(3)) apply to those who were la\vfully
employed pursuant to the provisions of Pt IV (ss 22-34). \vho were
holders of a pennit to be absent fmm the reserve or Ahoriginal
institution in question: who, being female, were lawfully married to
and residing with a husband of substantially European origin or
descent; or for whom, in the opinion or the Chid Protector,
"satisfactory provision is otherwise made". The balance of s 16
provided:
"(1) The Chief Protector may cause any Aboriginal or half-caste
to be kept within the boundaries of any reserve or Aboriginal
institution or to be removed to and kept within the boundaries of
any reserve or Aboriginal institution, or to be removed from one
reserve or Ahoriginal institution to another reserve or Aboriginal
mstitution, and to he kept therein.
(2) Any Aboriginal or half-caste who refuses to be removed or
kept within the boundaries of any reserve or Ahoriginal institution
when ordered by the Chief Protector, or resists removal, or who
refuses to remain within or attempts to depart from any reserve or
Aboriginal institution to which he has been so removed, or within
which he is being kept, shall be guilty of an offence against this
Ordinance.' ,
Moreover. \-\'ith an exception not presently matcriaL s 7 created thL:
Chief Protector the legal guardian of every Aboriginal and half-castL:
child. Section 7 relevantly provided:
"(1) Thc Chief Protector shall be the kgal guardian of every
Aboriginal and of every half-caste child. notwithstanding that the
child has a parent or other relative living, until the child attains the
age of eighteen years.
(2) Every Protector shall, within his dislm;1. be the local guardian
190CLR 11 OF AUSTRALIA 151
of every such child within his district, and as such shall have and He or A
,
KRL!CiER
rHl
of certain persons to he a wanl if hy rcason of enumerated matters that CmN()N-
WEALTH
person stood "in need of such special care or assistance as is provided
for by this Ordinance" ,mu there was (S5 30-37) a system of judicial Gumm"wJ
review in respect of declarations made under s 14.
The wardship system established hy the 1953 Ordinance was
considered by this Court in Namatjira v Raabe (579). The Court held
that it gave 10 Aboriginal people "a status substantially the same as
lhat which they occupied under the [1918J Ordinance" and
conduded (580);
"To sum the matter up. the legislation takes the place of prior
legislation under which a large body of Ahoriginals had a particular
status analogous to that which is given herc: it confers a pov..er to
give a similar status to persons who stand in need of special care
and assistance; the power is almost confined III its application to
Ahorigmals, having regard to the ambit of the exclusions; they are
persons who might he regarded as heing as a class in such need and
on the grounds enumerated: the power IS reposed III the
Admimstrator of the Territory; a person declared a ward has a right
of appeal should he choose to exercise it and he in a position to
exercise it; and the status given is protective in its nature." (5HI)
The exercise of the powers of the Chief Protector under ss 6 and 16
of the 1918 Ordinance was suhject to judicial review. \vhether by
prerogative writ or in a suit for an injunction. Speaking or s 16,
Fullagar J declamd in Wafers v The Commomvealth (582):
"TOhe courts must be alert to see that, if that which is not expected
docs happen and he does mistake or abuse his poweL the mistake or
ahuse does not go either undetected or unredressed."
H Co, A lmplicutirms
-
19%-1997
KRnlFR
In essence, the plaintiffs submit that the power conferred by s 13( 1)
or the Administration Act did not authorise thc making of the 1918
Ordinance in so far as it contained the sections T have set out above.
THE
Cm'.'10N- This, as I understand the submiSSIOns, was because (ij the power
'!>'EALTH conferred by this provision upon the Executive to make Ordinances
having the force of law could not exceed the constitutional competence
Gun"''''''' J
of the Parliament itself directly so to legislate under s 122 of the
Constitution and (iij a law made by the Parliament in terms of ss 6, 7
and 16 of the 191R Ordinance would have been invalid as nceeJing
one or other of various restraints upon its legislative power \.vhich
WCfe, as they still are, imposed as a matter of necessary implic<ltion
from the text or the Constitution.
Before turning to consider these implied restraints, it is convenient
to refer to certain remarks in McGinry l' Weslern Australia (5R3j.
Brennan CJ said:
"Implications are not deviscd by the Judiciary: they exist in the
text and structure of the Constitution and arc revealed or uncovered
by juJicial exegesIs (51:;4). No implication can be drawn from the
Constitution which is not based on the actual temlS or the
Constitution, or on its structure (51:;5), However, as an impliClltion
will be applied in a particular case to a spcClfic factual situmion, it
may be cxprcsseJ In terms relevant to that situation (51:;6). Although
the Court was divided in Australian Capital Televisiull Ply Ltd \.
The Cmlllllollwealth there was nothing in any Judgment to cast
doubt on the approach then takcn by Mason CJ (587): "It may not bc
right to say that no implication \.vill be made unless it is necessary.
In cases where the imphcation is sought to be denved from the
actual tcnTIS of the Constitution it may bc suffiCIent that the relevant
intention is manifested according to the accepted principles of
interpretation. However. where the implication is structural rather
than textual it is no doubt correct to say th'll the tenn sought to be
implied must be logically or practically necessary for the
preservation of the integrity of that structure.' "
(583) (1996) 186 CLR 140 at 168-169: ,ee also at 188, per Daw~on J:;ll ~.'O-2_E_ per
McHugh J: al 291 per Gummo\>! J,
(584) See Nali"nwiJe NeilS Pry Ltd v Wills (1992) 177 CLR 1 at 41-45 and Allslrali""
C0l'ilal Televisl"" Ply Ltd ~' The Comllli!lllly"iI/J (ACTV) (1992) 177 CLR 106
al 133-136 and the ca.les cited in lho;;l' passages,
(585) Amal;;/lnwted Socii'IY 4 Enliilleel'S I" Adelaide Slemmirip Co Ltd (InO) 28 CLR
129 aI 145. 155: Melb"urne C"'pow/ion '" The CO"lliwl/\leulrli (1947) 74 CLR 31
m 83:AClV(1992) 177 CLR 106 at 135, 209-210.
(586) ACTV(1992) 177CLR lIXiaI158-159.
(587) ACTV (1992) 177 CLR 106 at 135,
190CLR 1] OF AUSTRALIA 153
Wills (610), Theophanous v Herald & Weekly Times Ltd (fill), and He OF A
19%-1997
Stephens \' West Australian Newspapers Ltd (612) are not authority for
any proposition of this width. KRUGER
In Cunliffe v The Commonwealth (613), Brennan 1, with reference to
TilE
the decision of the United States Supreme Court in Crandall v CO.'1"ON-
Nevada (614), said it was unnecessary on the instant occasion to WEALTH
(6t8) See IYik "fople,' )' QueelL\l<wd (I ')%) 63 FeR 4'iO at 460,461
(619) Hi,wri,,,! Records utAli5lraha. SLri~, I. vol 19 (l')2:'), pp ~'i~-2SS_
190 CLR II OF AUSTRALIA 159
(Q) (623), and in New South Wales with the Supply of Liquors to
Ahorigines Prevention Act 1867 (NSW) (624).
Against this hackground, it is little short of inconceivable that when
the Administration Act was passed in 1910 the power confcrn::u hy
s 13( 1) was restrained as a matler of necessary inference froin the
structure of the Constitution in the way contended for by the plaintiffs.
Genocide
The plaintiffs rely upon the Convention on the Prevention anu
Punishment of the Crime of Genocide (the Convention), approval to
the ratification of which by Australia was given by the Genocide
Convention Act !'::l49 (Oh). The text of the Convention is set out in the
Schedule to the statute. There is no further legislation whieh goes on
to implement the Convention in Austmlian mUllicipallaw.
I have referred to the footing upon which this proceeding is before
the full Court. On that footing. I agree with Dawson J that acts
authorised by the 1918 Ordinance which took place aner the
ratification became effective on 12 January 1951 did not fall within the
definition of "genocide" contained in the Convention. I further agree,
again for the reasons given by Dawson J, that reliance by the plaintiffs
upon customary international law is misplaced.
There remain for consideration those grounds which the plaintiffs
seek to base upon the specific provision in s 116 of the Constitution
and the considerations flowing from the separation of federal judicial
power by eh III of the Constitution. It is convenient 10 deal first with
these grounds on the footing that nothing turns upon considerations
flowing from s 122. I will then deal with the more difficult, and
logically anlerior, issues whether s 116 applies to laws supported
solely by s 122 and of the interrelation between Ch III and s 122.
(620) R~pealcd hy s 2 of and replaced by the other provisions of lhe AlmriK'nes A('/
1911 (SAl.
(6ll) Amended 1">)' the AhonK'ne.\ Pmleclimj ,1('/ 1886 (Vkl) and repealed by the
Aboriliille.\ Act 1890 (Viel).
(622) Repeakd and replaced by the Ahm-iKine.'> An t897 (WA) and further replaced by
the Aborig;ne.\ A<:/ 190:; (WA).
(623) Amended by the Aborlg;nals Pro/en!"" and Re.Hr;c/;on of Ihe Sale of Of'iI/II/ Ad
1901 (QJ.
(6241 Repealed and replaced by the Ahorigine, PrO/en;,,!! AN 1909 (NSW).
160 HIGH COURT [I ':1%- I ':Itj7
K~U:;ER
TilE
Protector set out 111 s S( I), imposed no duty upon any officer charged
CO"""N-
with the administration of the 1918 Ordinance to bring up infants in \"B'-TH
(f>~~) cr fJllnk otNSW \. 'the Comml",\\""I/" (19481 76 CLR 1 m 349: C"le l' lViii/field
(19S8) 165 ClR 360 m 401. CiI.I/lmwine T"ohev, Uri v S(llI/h Aus/ralla (1'1901
16'1 CLR 436 al 472-474.
162 HIGH COURT [1')96-19')7
-,
19961997
KRU;ER
Executive hy a law of the Commonwealth (633).
The question \vhether a power to uetain persons or to take them into
custody is to be characterised as punitive in nature, so as to attract the
THE
C,,\1"ON.
operation of Ch Ill, depends upon whether those activities are
WEALTII reasonably capable or being seen as nl;eessary for a legitimate non-
punitive objective (634). The categories of non-punitive, involuntary
Gumn",,,,, J
detention are not closed (635).
The powers of the Chief Protector to take persons into custody and
care under the 1918 Oruinance were. whilst that law was 10 force, anu
arc now, reasonahly capable of being seen as necessary for a
legitimate non-punitive purpose (namely the welfare and protection of
those persons) rather than the attainment of any punitive objective.
This is apparent from various matters. There is the ereation or legal
guardianship in the Chief Protector by s 7, the specification in s 5(l)
of the duties of the Chief Protector, the conditiuning of the power
unuer s 6 by an opinion as to exercise of the power being necessary or
uesirable 11l the lllterests of the persons in l.]uestiun for the Chid'
Protector to take them into care and custody. the exclusion from the
operation of s 16 of those persons for whom, in the opinion of the
Chief Protector. "satisfactory provision is otherwise madc", anu the
eXistence before 1918 of long-establisheu statutory regimes in the
colonies anu States which were uirectcd to the wclfarc anu protectiun
of other indigenous persons.
Sectiun 122 oj'the COl/stitt/tion
Therefore. it is unncccss~ry to dcciuc the logically anterim
questions raised by the plaintiffs as to the rel~tionship bclwcen s 122
on the one hand and s 116 and Ch III on the other.
However, I shoulu express my finn v!C\v that s 122 is not diSjoined
from s 116. Also, were the mattcr res intcgru. it woulu he my tentative
vicw, as regards the Territory, that the provisions of Ch 111 are
applicable hut that existing authority in this Court would reqUire
reconsideration before that conclusion coulu be reached and applied.
I tum first to the constitutional text which proviues the founuation
for the existence of the Territory. The relevant provisions in the
covering clauses of the Commonwealth of Austrulia Constitulion
Act (636) were identified as follows by Dixon CJ tn Lamshed v
Lake (637):
"
((,35) ellu KiJeng t.i", (1442) 176 CLR I at 55.
(fiJ6) (iJ & 64 Viet c 12 (Imp),
(637) (1458) 94 CLR lJ2 ~1 140-141 The dj,tine1i'ln hel,,-ccn those tcrritorie,; which
wer~ once p~l1'; of ~ Stal~ '-lnd lhu.' ~ddrc"c<l hy eowring. cI 5. and ~xtcrnal
190 CLR 11 OF AUSTRALIA 163
KRl.'(;ER
of a colony whose people agreed with the other colOnies 'to unite in
one indissoluble Commonwealth'. It formed part of the Common- (1"mm"",,)
(63S) Lam.\heJ \ I.flKt (I'ISS) 99 CLR 132 nt 142, p~r Dixon Cl.
(G3'!) LamS/led \. Lake 11'I5Bl 'I'l CLR L32 al 144. Webb ant] Taytor JJ agreed "illl
Dixon CJ.
]64 HIGH COURT [ 1996-1997
(640) C,lflilid DuplicOiors Pr\' Ltd \ AU.\IWliwl Capillli TerrilOl)' (t992) t77 CLR 24g
al272, p~r Rr~nnan> D~ane ami T(}"n~y JJ; Svikarl ,-51",<,,,rl (tY94) 18t CLR 548
at .'i72-'i73, per Tooney J: at 581, per Gaudroll J: see also 51'1',,/1 \' Herm(., (1965)
114 CLR 226 at 2-'l2. per Barwick CJ
(641) (1965) 1 t4 CLK 226 at 250,
(642) (1958) 99 CLR 132 ~I 153-154,
(643) Plllers"'l .' O'Rnen (1978) 1.18 CLR 276
190CLR1J or AUSTRALIA 165
through which authority is exerciscd over what was previously part of He <w;\
19%-1997
a State. In Svikart v Siewarl (644), Brennan J said:
KRUGE~
"Territoncs surrendercd by a Statc and accepted by the Common-
wealth pursuant to sIll were dedared to he 'suhject 10 thc THE
-
19%-1997
KRUJFR
Constitution (648).
Thus, it has been held that s 90 operated for the protection of the
people of the Commonwealth lllcludin-g those who rcsiucd in an area
THe
COM"1<\N-
of a Slale which subsequently became an internal Territory; those
WMUIL residents were and re!naincd cnlitlcJ to the maintenance of the free
trade area throughout the Commonwenlth which s 90 was intended to
Gummnwl ensure (649). Likewise. s 118 mandates as to the whole of the
Commonwealth a state of affairs wherein full faith and credit must be
given 10 the laws, public Acts and records. and the judicial
proceedings of every State (650).
Another protection to which those residents had been entitled was
that confcrred by s 116 against the making by the Parliament of the
Commom\'ealth of any law, inter lilia, "for prohihiting the free
exercise of any religion". Further, these residents had the benefits
which now from Ch III of the Constitution
Sections 116 and 122 o/the Constitution
Section 116 states:
"The Commonwealth shall not make any law for establishing any
religion. or for imposing any religious ohservance, or for prohihiting
the free exercise of any religion. and no rehgious test shall he
required as a qualification for any office or puhlic trust under the
Commonwealth.' .
The weight of authority, albeit none of it ueterrninative of the issue.
supports the proposition that s 116 operates to restm::t tht: exercIse of
the legislative power conferred hy s 122 (651 l.
It is true that s 122, in stating that the Parliamcnt may make laws fOI
the government of the Tenilories. does not include the expression
"suhject to this Constitution" or a like form of words. But that does
not mean that s 122 is to be construed as though it stood Isolated from
other provisions of the Constitution ~ of which s 90 certainly is
one (652) - which might qualify its scope. The hal' imposcd hy sIll)
upon the making of certain laws by the Commoll\vealth is imposed in
general terms. r-.foreover. it would be a capricious result if the
((i4Sj cf Capil"! 1;"l'liour",,< I'IY Ud \' A".<II'"Ii"'1 C,,!,ilal 'rerl'ill!ry (I')')}) 177 CLI{
24S at 276. 279. 2S6-2S7.
{(,4 L)j Capit,,1 {)lIphC<lI""S (1')'J2) 177 eLK 24S J( 279,
((50) '-am<hni , l."ke (1958) 99 CLI{ 132 'II 1.. 2,
(651) Add"ide C" or Jeh""ilh 's Wi/nesse" fne I' The C"mmo"H'eallh (194-') 67 CLR 116
J( 12:1. 156-157: '-"'!I.<hed I' uike (l l )58} ')'J CLI{ 132 Jt 143; SP1'<i1l \ Hermes
(1965) 114 CLR 226 al2'iO: Telm Tall \' The C"""I!"n<ve,i!lh (1%9) 119 CLR
564 JI 570: AllornnGerlt1'<i1 (Vid),- Ex rei lJ!<Kk ,. n,l' Comllllmwea!th (tnl)
146 CLiI. 55'! ~t 576. 618. 621. 649; cf C"e \. ill" UII!lI/Wl/weo!,h (1'17')) 53
ALJR 403 J( 40S: 24 ALR I IS aI 129: and AII(lmey-(~e"eral (1//('11. Ex rei m"d
vi",' C,,"mwm,ealrl, (ISIS I) 146 eLR 559 al .'i93-594
((,52) C"!,,w! TJ"I'!ic(lfon (1992) 177 CLK 248 J( 272, 27'1, 288. 290,
190CLR 1] OF AUSTRALIA 167
(653) (1'J5H) 'J'J eLR 1.'2 at 141-144. 153-154. Webb and Taylor JJ agreed with
Dixon CJ.
(654) I'o!vukhovicl,., The C'mnmmmealth (1991) 17~ C'LR 50J at 6::\4685
(655) AUSlwliml Cormnwli,\, PUrly (1951) S3 CLR I at 1<,1:,,262-263; R v Kirby: Lx
parle Boilermakers Socier)' o(Australi" (J (56) 94 eLR 2';4 at 275-276.
(656) \\il.,on l' MiniS/erfo! AhoriJ!inal <lrld 1''11,,-1 Slwi, 1,1!<",J", .V/'"n (19%) IS9
eLI{ I Jl II 12. 16-17, 25-26, 41-42.
168 HIGH COURT [1996-1997
-
19901997
KRllC,[R
executive pov,'cr in relation to such a Territory. An answer both simple
and close to the text would have been given by a decision that.
conformahly with s 61 as to the executive power of the Common-
"
THE
wealth, provision was made by s 71 as to the judicial power or the
C".''''''N- Commonwealth in relation to the Territories.
WEAl.TH
(657) In Firml '" Ste""nWIJ (I'H7) SH CLR 52X at S5H. Latham CJ expre~sed Ihe view
that the effect of, 122 i, that (h~ Parliam~n( h3' "exdu,iv~ power'" within Ihc
m~anillg of s 52(iii), so Ih3t, hy Ihe operation of, 52{iii) in rebtion to s 122, Ihe
P3rharnent "would appear to hav~ POWCI' to ma~e law.' for Ihe COIIl[rtO!mealtll
with respect \() the gov~l'llmcnt of :--;ew Guine~" II is unneLL.<>ary to pursuc this
question in the present ~~5e.
(65S) (I()56) 94 CJJ{ 254 at 290. The deci,io[l of th~ High Court "as followed hy the
enactrnent of the ('""cili",i,,,, wid ArI,illw;'1/I A"I1956 (Oil). Section 49 th~r~of
decmcd certain ordcl's of th~ (,Id ComlTlonwe~llh COUll of Con.:iliation 3nd
Al'bitration w be Ol'd~rs of Ik ne" COJllmo[lw~alth tndustrial COlin
(659) (1915) 19 CLR 629.
16M)) (1911) 16 CLR -']5.
(661) Sprall v lkrmcs (1'165) 11-'1 CJ.R 226 '-'I 27-';
190 CLR 1] or AUSTRALIA 169
KRl'G""
,
TilE
annexed (662). further, in the Province of South Australia, it had heen COMI>-<ON-
regarded as axiomatic that from the beginning of European occupation Wr:ALTH
the common law and English and Imperial 1cgislution would apply
under the common law principles on the reception of law in settled
colonies (663). Finally, there may be a "matter [aJrising under" a law
made by the Parliament, within the meaning of s 76(ii) of the
Constitution, although its interpretation is not involved; it is sufficient
that the right or duty in question in the maHer owes its existence to
federal law or depends upon it for its enforcement (664).
Hence, the force in the statement. with reference to the position m
the Australian Capital Territory, made by Dixon J in Federal Capital
Commissio/l v Laristan Building & Investment Co Pty Ltd (665):
"It may well be that all claims of right arising under the law m
force in the Territory come within this description [ie, within
s 76(ii)], hccause they arise indirectly as the result of the Scar or
Covernment Acceptance Act 1909 (see s 6), and the Seat of
Covernment (Administratio/l) Act 1910 (sec ss 410 7 and 12)."
However, on the appeal m Aflomn'GenfTal (Cth) v The
Queen (666), the Privy Council for the time heing foreclosed any
development to Implement these views by a dogrnatic statement that
eh III was to be regarded as '"exhaustively describing the federal
judicature and its functions in reference only 10 the federal system of
which the Territories do not form part". That ohligcd Dixon CJ, in
Lamshed v Lake (667), 10 accept that Ch III "may be treated as
inapplicable so that laws made mediately or immediately under s 122
are primarily not within the operation of the Chapter" (emphasis
added).
Then, in Spratt v Hemlcs (66R), alLhough many aspects of the
suhject were discussed, two points were decided. lne first was thai the
Commonwealth legislation supported by s 122 may create or authorise
the creation of courts with jurisdiction with respect to occurrences in
(662) s~~ Bud""'''n'' The ComIJJUn""fallli (l'J131 16 CLR 315 Jt 32-'1. 333-334.
(66.3) COmm;H;OJler f!f Slamp.' (SAl" Telel'rllph If/lnlllle,,1 Co Fly Ltd (IYYS) IH4 CLR
-'15., JI 4M-467.
(664) U'/C tndli,\/rifJ!.Id \' BlIW (AUSlraha) Lid (]YH3j lSI CLR 575 m SH I
(665) (1929) 42 CLR 582 at 585. See al,o Dixon IT, rcmarks in Chapman" SUllie
(1963) 110 eLR 321 al 32'J-.'30. Cowell Jnd Zinc" Fedi'ral Jun.,dil'li"" in
AuS/ralla. 2nd ed (l'J7Hl, pp t61-162 conclude Ihut ull the common bw (inchlding
pJ'ivntc inl~mali"n~lluwl operming in J territory hJ, J slJ!ulOry ha.,i,.
(666) (tY57) 95 CLR 529al .'i4.\ [19.:'7J AC 288 ~l 320,
(667) (1958) 99 eLR tJ2 m t42.
(6681 (1965) 114 eLi{ 226.
'70 HIGH COURT [1996-1997
(66')) Th" authoriti<'s supponing that ~ol1clusion ,,'en= bier ~"lkcl~cl hy Gihhs J in
Capiwt TV & App!illJu,'e" Ply !.rtf \' Fa!coner (1971) I ~5 CLR 59 j a( 627.
(fJ70l (1971) 1~5 CLR '\91
(671) d ll"rris L' The Queerl (954) 90 C'LR 652 J( 655, wh"re Dixon CJ. Fullagar.
Kitto and Taylor JJ .,aid '"The juri.,clicliol1 of this Court to ~nt~rtain the appeal
ari,,~;;, if [lot untkr (h~ Constitution. at ~Il events Linder,; 64 of the Papull (Inri . IIel<
Guine" .1c1 1949-1950,"
(6721 Ct'f',wl IV (1971) 1::'5 CLR 591 al fl~~. per Gihh, J, d at 597, 600. per
B~r"i;~k CJ; a( fl02, per McTiernan J: at 624, per Walsh J
((i73) R"i!em",kers (195fJ) 94 CLR 254 at 290.
190CLR1] OF AUSTRALIA 171
and '"non-federal". This docs not sit well with the estahlished doctnne H C Of A
19%-1997
that the Constitution is to be read as one coherent instrument, so that
s 122 should not be treated as "disjoined" from the rest of the
Constitution (674).
['HE
Secondly, to treat the scope of eh III as reflecting the division of COM-""."-
legislative power between the Parliament and the legislatures of the WHLTH
(674) Berwick l.ld \. Cm} (1976) 133 CLR 603 at 60H: ,ee abo Capitaf Dupliclllfin
(19\12) 177 CLR 248 at 272. 288.
(675) SOUlh Alls/mlio v Viewri" (I'! II) 12 ClR 667 at 676.
(676) See Ex parte Goldring (19m):< SR (]\;SW) 2(i(). in whkh it was Ildd, before the
est"blishm~m of the High CourL that a State coun had no power to grJllt
mandaTTlu, ag~inst a federal officer
(677) lfar,-i, \ Cal"dine (1991) 172 CLR 84,
(678) S~e Harri.' v C"f",lme (1991) 172 elR ~4 at 1Y)-140: Chemcrinsky, Fella,"
Jun,'die/irm, 2nd ed (1\.194), *4.5.2
172 HIGH COURT lI9%-JlJ97
-
1~%-1997
KRU'ER
to its officers is, upon certain conditions, permissible and consistent
with the federal judicature provisions made by the respective
Constitutions,
THE
The first consideration is nowhere more evident than in the
en""""
WFAUll Judgment of Isaacs J In R v Bernasconi. The Court therl: decided, on a
case reserved by the Central Court of Papua. that the accused's
Gumn",,,,. J
deemed request for a jury had been rightly refused and thal s XO of the
Constitution WJS inapplicable. Isaacs J said (67lj):
"[Section 122J implies that a 'territory' is not yet in a condition 10
enter into the full participation of Commonwealth constitutional
rights amI powers. It is in a state of depemlency or tutelage, and the
special regulations proper for its government until. if ever, it shJl.I
be admitted as a member of the family of States, an:: left to the
discretion of the Commonwealth Parliament. If, for instance, any of
the recently conquered territories were attached to Australia by act
of the King and acceptance by the Commonwealth, the population
there, whether Gennan or Polynesian. would come within s 122, and
not within s RO. Parliament's sense of justice and fair dealing is
sufficient to protect them, without fencing them round with what
would be in the vast majority of instances an entirely inappropriate
requirement of the British jury system."
Section 80 of the Constitution states:
"The trial on indictment of any offence against any law of the
Commonwealth shall he hy jury, and every such trial shall be held
in the State where the offence was committed, and if the ollence
was not committed within any State the trial shall be held at such
place or places as the ParlIament prescnbes."
In its tenns s 1\0 thus contemplates that the offence in question may
not have hcen committed within any State. Accordingly, an offence to
which s 80 applies may have been committed within a Territory or
elsewhere in the world in contravention of a law of the Common-
wealth having a valid extraterritorial eHec! (680). In either case, the
trial is, pursuant to s 80, to be hl:1d at such place or places as the
Parliament prescribes. rurthemlon::, the: "offence against any law of
the Commoll\veahh' referred to in s 80 may be: an offence against a
law applicable only to a Territory_ This is a mailer adverted to by
Evatl J in J'ji-ost v Stevenson (681). Ii" a law made in pursuance of the
powe:r coni"em::d hy s 122 IS a "law of the Commonwealth' for the
pllIposes of s 109 of the Constitution, as established by Lamshed r
Lake, it is difficult to maintain the proposition that such a law is not a HCo, A
19%-1997
"Iaw of the Commonwealth" within the meaning of s 80. It was
considerations such as these which led Evatt J in Ffrost v Stevenson to
decline to support what his Honour described as "the at first sight
THE
surprising generalisation that no part of Ch III of the Constitution can CO"MON-
have any application to territories under s 122". WEALTH
{(iS2) M~son. "Th" Li",i(~(ion or Appeals to Ihe Privy Coun"il rrom IhL High Court nf
Au,lealia. rrom Fnkral Courts othcr Ihan thc High COUrt, li'om Ihc Supremc
Courls of Ihc Tcrritories and from Courts cxcrcising federal Jurisdiction".
Federal La,,' Rn'le\;" vol 3 (l%S1 t. aI P [7, This followed from the view wken
in Parkin Wid C"Wfler) Jallles (1\.1051:2 eLI? 3t5 aI 330,332 of Ihe ,cope of Ihe
Judi"ial C''IIlmillee Ac' tS44 (Imp) (7 & S Vict c 6'): sce CurS011 ,'Jolm I,'<lir/;I.\
& SOli,' Ltd (t,)\.It) 173 CLR 1')4 aI 212-2JJ.
{(iS3) Th" sectioll thus d~Jlt Jbo with Jpp~als from fed~r~1 wurh olh"r (h~n th~ High
COUIt. The rea50ning in the laler decision The COllllllomn'allll ,. Q""t'll.rI",,,/
(1975) 134 eLf{ 298 ~t 3t4-316. 32S. indic~tes th.n Ch III op"rJted to limit the
prcrog:llive hy Lxlinguishing it in respect of mUlters ari,ing thereund"r, savc ror
the pres"rvation thereof in r"'p""t only of c"n~;n High Court ~ppeJI,
174 HIGH COURT [ 19%-1997
HC(lFA authoritative. there would be no difficulty in classifying those laws as
1996-19n
supported by s nOii) of thc Constitution. As it IS, rclumce apparently
KRLnER must be placed on s 122 as conferring authority upon lhe Parliament to
confer jurisdiction upon State courts.
THE
Co""o,,- Territorial courts
WEALTH
As mattcrs now stand. the existing dislocation. if not disjunction. of
Gumm""') the territorial courts prm.luces several consequences, of daily import-
ance, which appear to be adverse to the scheme and structure of the
Constitution. This is noncthdcss so in the light oj" changes made to the
tcrritorial court structure by legislation such as the Northern Territon'
Supreme COlirt (Repeal) Act 1'.l7'.l (Oh) and the Supreme COllrt Act
In'.l (NT) (the NT Act). The first statute repealed the Northern
Territory Supreme COllrt Act 1961 (Cth) but provided (s 5) that tile
Supreme Court as established hy the second, territoriaL statute is to he
deemed as 10 he a continuation In cxlstcnce "without allY change in
identity" of the Supreme Court as established by the 1%1 statute.
Section 40 of the NT Act provides for the removal from office of a
Juuge of the Supreme Court by the Administrator upon an address
from tbe Legislative Assembly praying for removal on the ground of
proved misbehaviour or llleapal:ity (684).
Matters which arc within the original jurisdiction of this Court.
including matters arising under the Constitution or involving its
interpretation, have been entrusted by the Parliament to courts which.
undcr received doctrine. are neither federal courts nor courts of a State
within the meaning oj" s 77 of the Constitution. Sections 78A, 78B and
40 of the Judiciary Act operate upon that premise. However, save for
the possible availability of review under s 75(v) of the Constitution (on
the rooting that a Judge of a "territorial court" is an "officer of the
Commonwealth"), there IS no constitutionally entrenched avenue for
access to the High Court in such maltcrs.
In Capital TV & Appliances Pn Ud \. Falconer ((i!)S). Windeyer J
said:
"When this Court hears appeals from courts in the territories,
pursu<lnt to a power to do so given by Parliament it does not do so
in a federal capacity. It does so as the supreme court of the
Australian nation, exerClsmg a JUrisdiction conferred by the
(6~4) The ACT Supreme Court (Tnms/erj A<'I t')')l (Ohl provjd~d for th~ lramfn llf
responsibility for the Suprem~ COlin of the Austr~ti~n C~rita1 Terrilory from the
Common",e~llh hi Ihe Territor)'. Seelion 8 the",of inserte,l.' 4Su in the .1uslralia"
G'fJl'wl Terriwry (Sell~G"""lmllenlJ Ilu 1988 (Cthl. The dICct of this I, thJt ~ny
enactment of the L~gisl~tive Assembly of th~ Territory ",bling to r~[]Io\'al fmIll
oflleL of a judicial oniccr I!lu,t folio", the pCll"liLular procedures therein specified.
including an adverse rcporr by a judicial commi,sion ~nd detemlin~lion hy lhL
Assembly lhat Ih~ faLts so found by th~ eommi."ion amounl to lIIi,bchaviour or
phy,i~al or ",~nt~t in~~pa~ily idcntili~d by IhL "'''Hlllis;;inn.
(085) (197t) \2'; CLR 59t alotl
190CLR I] OF AUSTRALIA 175
He",. A Constitution binds the courls, Judges and people of every State and of
19%-1997
every part of the Commonwealth (covering cI 5).
The plaintiffs submitted that . "in the light of contemporary
understanding of the federal structure" it is difficult to see any basis
rHE
COMWl,,--
for c,;:cluding the application of the requirements of eh ITT from the
"'Mull exercise of legislative power under s 122. It will be apparent that I sec
the force in that submissIOn. However, in the present state of the
authorities, the plaintiffs cannot make good their suhmi~si()n that all
laws of the Commonwealth, including those: supported by s 122, must
comply with the doctrine of the separation of powers found in eh nr
of the Constitution. Moreover. and as I have Indicated, even if the
plaintiffs ",,'ere correct, that would not produce Invalidity of any of the
laws they impugn in these actions.
Conclusion
Question I of the questions reserved in each action should be
answered by saying that none of the legislation In respect of which"
Jeclaration of invalidity is sought in thlit action is invliliJ by reason of
any or the rights, guarantees, immunities, freedoms or provisions
pleaded in par 29 of the amended statement of claim. There should be
no answer to any of the remaining questions reserved. The plaintiffs
must pay the costs of the defendant of the questions reserved for the
Full Court.
KRUGER v THE CO\lMON\VEALTH
I. The questions reserved for the consideration of the
Full Court be answered as follmvs:
"Q. I. /s the legislative power conferred hy
s 122 oj the Constitwion or the power to
enact the Ordinances and regulutions
reji'rred to in pars 7-12 inclusive of the
Amended Statement oj Claim so restric-
ted by alty and which of the rights,
;?uaranrees, imlllunities, jreedvllls, or
provisions reji'rred to in par 29 of the
amended statement oj claim m: to
invalidate the Aers. Ordinances and
regulations referred to in pars A n, C
and D oJ'the claim to the (,\tent pleaded
in those paragraphs ')'
A. No.
"Q.2. Does the Constitution co/lfain any right,
guarantee, ifllflHllJity, ji"eedmll or pro-
vision as referred to in par 29 oj" the
amended shltemellf of claim, ([ breach or
which bv-
(a) an officer o(the Commonwealth. or
190 CLR 11 OF AUSTRALIA 177
K.lCC;ER
,
nrc
breach of contract) against fhe Common-
wealth sounding in damages,?"
Co""",,-
"'HLTH
No.
If ves to question 1 or question 2, are
any and which (~f the matters pleaded in
suhpars (d) and (e) of par 29 01' the
amended dljl'nce relel'tmt to the exist-
ence, scope or opemtion at any material
time 01' any and which of the rights,
guarantees, immunities. freedoms and
provisions?' ,
A. Unnecessary to answer.
"Q,4, {fyes to question 2-
(a) on the facts pleaded in pars 1 to 6
of the amended statement (~f claim,
are the plaintiffs' claims (or any of
them) for damages for hreach of a
constitutional right, guaral/fee, im-
nwnity, freedom or provision sWttlte
barred?
(b) by what statute?"
A, Unnecessun to answer.
"Q.5. II yes to qliestion 2, on the facts pleaded
'" -
(a) par.1 I/()6 oJ Ihe amended .\"fate-
mellt (~f claim. par 3611(a) and (cj (~f
the amended !fljt'nce and par 7 rd'
the amended r('ply:
(h) pars 1 to 6 01' the amended stute-
ment oj' claim, par 36R(C) oI the
amended defence and pars 6 and 7
c1'the amended reply,
are the plainlijj~" claims (or allY oI them)
for damages for hreach 01' a
constitutio/l(l! right, guarantee. immun-
ity, ;reedom or provision barred, or
capable oI being barred, br WI implied
constitutional time limiTatiOIl reqlllTing
thar Ihe claims be instiluled 'within a
reasonable time?"
A. Unnecessary to answer.
"Q,6. II yes to question 2, on the facts pleaded
in -
(a) pars I 10 6 of the amended state-
178 HIGH COURT [1996-1997
-
1996-1997
,
KRUiER
Te,
(b)
the Amended Defcllce alld par 7 of
the amended reply;
pars I to 6 of the amended siafe-
ment of claim. pur 368(C) of the
C""MON-
,VE.'LTH amended defence and pars 6 and 7
of the amended reply,
are the plaintiffs' claims (or any oI them)
for declaratory rdief and/or damages for
breach of a constitlltional right, guaran-
fee, immllnitv, ji'crdom or provisioll -
(i) capable or bein;? barred by
laches or other ana!O!?010
equitable principles?
(ii) harred In laches or other anal-
ogous equitable principles?"
A. Unnecessary to answer.
"Q.7. On the fuets pleaded in pars I to 6 of the
Gil/ended starement of claim -
(a) arc the plainriffs' claim I' (or mn' ul
them) jor dUII/agl's for wrongjid
imprisonmcm and deprivation or
fibert\' stalute burred?
(b) bv \Vhat statute')"
A. Unnecessmy to U/I.lwer.
2. The plaintiffs pay the derendant's costs
DRAY v THE COM;\IO:"WEALTH
I. The questions reserved for the COllsideratioll o( the
Full Court be answered as Io{{{iI\'s.
"Q.l. Is the legislative power conferred by
s 122 of the Constitution or the power 10
enact the Ordinances and regula/iolls
referred to in pars 4-9 incfllsin: of Ihe
amended statement (~r claim so restricted
bv any and which of rhe rights, X/UI/WI"
tees, immunities, freedollls, or provisions
referred to ill par 20 of the amended
statement of claim as 10 invalidate the
Acts, Ordinonces ulld regulatiotls re-
ferred to in purs A B, C and D of the
claim to the e.tlenl pleaded ill those
paragraphs?' ,
A. No.
Q.2. Don the ConstiTUtioll contain OilY right,
guarantee, illllllllnity, freedom or pro-
vision as referred to i/, par 20 I~f the
190CLRII OF AUSTRALIA 179