Kruger & Anors v Commonwealth

(1997) 190 CLR 1

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(Judgment by: Toohey J)

ALEC KRUGER & OTHERS, GEORGE ERNEST BRAY & OTHERS v COMMONWEALTH

Court:

Judges: Brennan CJ
Dawson

TooheyGaudron
McHugh
Gummow JJ

Subject References:
CONSTITUTIONAL LAW
Purported invalidity of Aboriginals Ordinance 1918 (NT)
Whether beyond the power which could be conferred to the Governor-General of the Commonwealth and the Legislative Council of the Northern Territory under s 122
Method of characterisation applied to laws purported to be supported by s 122.
Existence of implied constitutional immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth
Whether Ordinance is contrary to such immunity
Whether s 122 is subject to Ch III
Whether deprivation of liberty can occur without exercise of judicial power.
Existence of implied constitutional principle of legal equality
Whether Ordinance is contrary to such principle.
Existence of constitutional implication of freedom of movement and association
Whether Ordinance is contrary to such freedom
Whether s 122 is subject to implied freedoms.
Convention on the Prevention and Punishment of the Crime of Genocide
Existence of implied constitutional immunity from any law authorising acts of genocide
Whether Ordinance is contrary to such immunity.
Whether Ordinance is a law for prohibiting the free exercise of religion contrary to s 116
Whether s 122 is subject to s 116.
Availability of damages from Commonwealth for breach of the Constitution by an officer of the Commonwealth.
LIMITATION LAWS
Commonwealth and Territory laws
Application of Judiciary Act 1903 (Cth).

Other References:
Aboriginals Ordinance 1918 (NT).
Constitution ss 116, 122.
Judiciary Act 1903 (Cth), ss 56(1), 64 and 79.
Convention on the Prevention and Punishment of the Crime of Genocide.

Judgment date: 31 JULY 1997

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Judgment by:
Toohey J

In these actions each plaintiff claims against the Commonwealth declaratory relief and damages by reason of his or her removal from mother and family while a child and detention in a "reserve or aboriginal institution" ^[F125] . The matters came before the Court by way of questions reserved, pursuant to O 35 r 2 of the High Court Rules. Those questions appear in other judgments and it is unnecessary to set them out. In the Commonwealth's submission, the questions arise solely on the pleadings and it is both inappropriate and impermissible, in the absence of the agreement of the parties, to rely on assertions of fact or to invite the Court to make or proceed on assumptions or inferences of fact. This approach to the task the Court is required to perform is undoubtedly correct. The Court's role is accordingly circumscribed. It has the consequence that some of those questions may remain unanswered until factual issues have been resolved. This is not uncommonly the fate of the procedure that has been adopted.

Aboriginals Ordinance

To understand the enactment of the Aboriginals Ordinance 1918 (NT) ("the Ordinance"), it must be remembered that, by the Northern Territory Acceptance Act 1910 (Cth) ("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 Territory of Australia" ^[F126] . The Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act") was passed, according to its long title, "to provide for the Provisional Government of the Northern 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 ^[F127] . The Ordinance was made pursuant to that authority. Section 67 of the Ordinance empowered the Administrator (appointed by the Governor-General under s 4 of the Administration Act) to make regulations for its carrying out. The Ordinance was repealed on 13 May 1957 ^[F128] . The plaintiffs' principal attack was on the validity of ss 6, 7 and 16, together with s 67. They also challenged the Administration Act and the Acceptance Act in so far as those Acts authorised 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(1) of the Ordinance read:

"The Chief Protector shall be entitled at any time to 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 to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody."

Each plaintiff pleads that he or she "is and was, at all material times, an 'aboriginal' and/or a 'half-caste' within the meaning of the definition of those terms" 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 has a parent or other relative living". In 1953 s 7 was repealed and replaced with a provision which read simply:

"The Director is the legal guardian of all aboriginals." ^[F129]

Section 16(1) empowered the Chief Protector to

"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 aboriginal institution to another reserve or aboriginal institution, and to be kept therein".

By force of sub-s (2), any aboriginal or half-caste who refused or resisted removal or who refused to remain in or attempted to depart from a reserve or institution was guilty of an offence. The operation of s 16 was qualified by sub-s (3) whereby the section was expressed not to apply to any such person

"(a)

who is lawfully employed by any person; or

(b)

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 husband who is substantially of European origin or descent; or

(d)

for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made".

Two definitions should be noted, particularly having regard to s 16 ^[F130] . "Reserve" was defined, following an amendment to the Ordinance in 1939, to mean

"any lands ... reserved for the use and benefit of the aboriginal native inhabitants".

"Aboriginal institution" was defined to mean

"any mission station, reformatory, orphanage, school, home or other institution for the benefit, care or protection of the aboriginal or half-caste inhabitants of the Northern Territory, declared by the Administrator to be an aboriginal institution for the purposes of this Ordinance".

The significance of these definitions is for the Commonwealth's argument that reserves and institutions were established for the benefit, care or protection of Aboriginals ^[F131] . Hence, it was submitted, the sections under challenge should be seen as having a welfare and protection purpose. It followed that the Ordinance should not be treated as bringing about the "detention" of Aboriginals in the sense that the term is generally understood. This view of the Ordinance is discussed later in these reasons.

Legislative history

The provenance of the legislation plays a part in identifying its object. The Ordinance had been preceded by the Northern Territory Aboriginals Act 1910 (SA), which was continued in force by the Acceptance Act until its repeal by the Ordinance. The 1910 Act was expressed to be "An Act to make Provision for the better Protection and Control of the Aboriginal Inhabitants of the Northern Territory, and for other purposes". It contained provisions similar to ss 7 and 16 of the Ordinance ^[F132] .

The Solicitor-General for Western Australia suggested that the Ordinance had its genesis in legislation from Western Australia, in particular the Aborigines Act 1897 (WA). That Act was expressed to be "for the better Protection of the Aboriginal Race of Western Australia". However it was the Aborigines Act 1905 (WA), it was submitted, from which the Ordinance was derived. The 1905 Act was expressed 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 welfare of the aborigines". Section 8 appointed the Chief 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 16 of the Ordinance closely resembles. The regulation-making power was similar in the two enactments. The power of removal contained in s 12 of the 1905 Act seems to have been borrowed from s 9 of The Aboriginals 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 Aboriginal Rights ^[F133] "which recommended the appointment in Australia of protectors of Aborigines, invested with both coronial and magisterial powers, to cultivate relations with the local tribes and to secure the maintenance and protection of their rights" ^[F134] . The point of this legislative history is that it lends force to the submission that the Ordinance was seen at the time as serving a welfare purpose. While the means adopted to achieve such a purpose would now be regarded as entirely unacceptable, there is a question as to how far any assessment can be divorced from the perceptions of the time. And there is a more basic question, to be discussed later, whether the terms of the legislation went beyond what was necessary to secure its purpose.

In Namatjira v. Raabe ^[F135] the Court considered the provision of the Welfare Ordinance 1953 (NT) which empowered the Administrator to declare a person a ward in certain circumstances. While the Welfare Ordinance was of general operation, the Court held that, with a few exceptions, the very large category of persons excluded from its operation "must cover everybody but aboriginals" ^[F136] . The Court spoke of the legislation as conferring a status which was substantially the same as that conferred by the Ordinance and "almost confined in its application to aboriginals ... persons who might be regarded as being as a class in such need [of special care and assistance] ... and the status given is protective in its nature" ^[F137] .

It must again be stressed that it is the validity of the Ordinance the plaintiffs challenge and which is the basis of their claim for damages, not the exercise of power under an enactment accepted as valid. This is in contrast to Waters v. The Commonwealth ^[F138] which concerned an alleged abuse of power by the Director under s 16 of the Ordinance. In that regard Fullagar J said ^[F139] :

"[T]he courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed".

But in these proceedings it is not abuse of power upon which the plaintiffs rely.

The challenge

The plaintiffs' challenge to the legislation involved, as a first step, the submission that the Parliament could not confer on another, in this case the executive, the power to make laws which the Parliament itself could not validly enact. This is an uncontroversial proposition. The second step was to identify why the Parliament could not itself validly have enacted the legislation in question. Broadly speaking, the obstacles to direct enactment were said to exist by reason of a constitutional prohibition against detention without due process, the existence of s 116 of the Constitution and various implications arising from the Constitution, coupled with a general assertion that the legislation was not a law for the government of the Northern Territory within s 122 of the Constitution.

In its defence to each action the Commonwealth pleaded that the legislation under challenge in each case was a valid law for the government of the Northern Territory and denied that the legislative power conferred by s 122 was constrained by s 116 or by any of the constitutional implications relied upon by the plaintiffs. By way of alternative defence the Commonwealth pleaded ^[F140] that if the legislative power conferred by s 122 is so restricted, the Ordinance was not in breach of s 116 or any such implication because it was "enacted and amended for the purpose of the protection and preservation of persons of the Aboriginal race" and was "capable of being reasonably considered to be or alternatively was appropriate and adapted to the achievement of that purpose". The Commonwealth further argued that if the Ordinance 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 prevailing at the time of enactment of the Ordinance, not by reference to current standards and perceptions. Such an inquiry, 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 reserved.

Section 122 of the Constitution

Section 122 of the Australian Constitution empowers the Parliament to "make laws for the government of any territory ... acquired by the Commonwealth". The formula employed differs from that in s 51 which empowers the Parliament to "make laws for the peace, order, and good government of the Commonwealth with respect to" the matters identified in the section. Nevertheless, "the power is no less than the power which would have been conferred if the 'peace, order and good government' formula had been used" ^[F141] .

In Berwick Ltd v. Gray ^[F142] it was said that

"all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connexion between the law and the Territory".

The Commonwealth relied upon this statement and also upon the earlier statement by Barwick CJ in Spratt v. Hermes ^[F143] that the power conferred by s 122 "is not only plenary but is unlimited by reference to subject matter".

The Commonwealth submitted that a sufficient connexion exists where a law operates upon persons or things within a territory. 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 connexion with a territory. The law must be "for the government" of the territory in some meaningful sense ^[F144] .

In the course of argument on this aspect it was submitted by the plaintiffs that a test of proportionality was appropriate to assess whether a law was one for the government of a territory. I would reject this test, generally for the reasons I gave in Leask v. Commonwealth ^[F145] . I shall not repeat those reasons except to say that they assigned proportionality to a particular aspect of constitutional interpretation which is not relevant to the characterisation of s 122. Proportionality does have relevance at a later stage of these reasons. It is hard to see why the Ordinance does not answer the description of a law for the government of the Northern Territory since it relates to an aspect of government and since it bears directly and only on certain inhabitants of the Territory, by reference only to places and circumstances within the Territory. It is in my view a law for the government of the Territory.

But to say that does not answer the place of s 122 in the Constitution and its relationship with other sections. In Spratt v. Hermes Barwick CJ observed of the section ^[F146] :

"It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States.

But this does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than Chap VI are applicable to the making of laws for the Territory or to its government."

It will be necessary to explore this aspect later in these reasons. It is enough at this stage to say that the plenary nature of the power will not necessarily exclude such express provisions as s 116 nor will it necessarily exclude implications which may fairly be drawn from the Constitution if relevant to the operation of the law in question ^[F147] .

It is also necessary to bear in mind the comment of the Court in Union Steamship Co of Australia Pty Ltd v. King ^[F148] in relation to the words "for the peace, order and good government":

"Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law ... is another question which we need not explore."

Separation of powers and due process

The plaintiffs argued that even if the Ordinance was otherwise a law for the government of the Northern Territory, s 122 of the Constitution does not support a law which confers judicial power upon a body which is not a court within Ch III of the Constitution. They further said that the powers exercisable by the Chief Protector (later Director) under the impugned sections of the Ordinance constituted judicial power.

The focus of the attack in this respect was on s 16 of the Ordinance, the provision which empowered the Chief Protector to keep an aboriginal or half-caste within a reserve or aboriginal institution. Certainly the power is one to detain against the wishes of the person concerned. And, so far as the section itself is concerned, the power is expressed in absolute terms, subject of course to the exemptions in sub-s (3). That is not to say that when the Ordinance is read as a whole a purpose does not emerge which controls the exercise of the power. However, as already noted, it is not the exercise of power which is before the Court.

The plaintiffs' case in this regard wears two faces which, as argued, could be taken as independent of each other or as linked in some way. The first is that Ch III confers the judicial power of the Commonwealth exclusively on "courts", that neither the Chief Protector nor Director answered that description, that the power conferred by s 16 was judicial, hence the conferral of power was invalid. That argument cannot succeed unless Ch III operates in respect of a territory. The second involves the proposition that, even if Ch III is not applicable to a territory, the separation of powers dictates that punitive powers of detention cannot be conferred upon the executive without prior adjudication or due process of law.

In R v. Bernasconi Griffith CJ made his views clear when he said ^[F149] that "the power conferred by sec 122 is not restricted by the provisions of Chapter III of the Constitution". However, Bernasconi itself is not authority for that broad proposition. The decision was that the power conferred by s 122 is not restricted by the provision in s 80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. As Windeyer J observed in Spratt v. Hermes ^[F150] :

"Recognition of the decision does not necessarily involve acceptance of the statement that Chap III as a whole has no application to the territories."

In Spratt v. Hermes Barwick CJ spoke of the relationship between s 122 and the Constitution generally in these terms ^[F151] :

"It must remain ... a question of construction as the matter arises whether any particular provision has such an operation [that is whether the power is controlled by other parts of the Constitution], the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole."

At its narrowest, this part of the argument turns on whether courts of a territory established pursuant to s 122 are "federal courts" within the meaning of s 71 of the Constitution which vests the judicial power of the Commonwealth in the High Court "and in such other federal courts as the Parliament creates". In R v. Kirby; Ex parte Boilermakers' Society of Australia Dixon CJ, McTiernan, Fullagar and Kitto JJ said ^[F152] :

"It would have been simple enough to follow the words of s 122 and of ss 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament ... But an entirely different interpretation has been adopted, one which brings its own difficulties".

As indicated in this passage, and in line with decisions of this Court, the courts of the Northern Territory established pursuant to s 122 have been held not to be "federal courts" as referred to in s 71. Whether the doctrine of separation of powers nevertheless applies to the Territory is another question, to be mentioned later in these reasons. Among the decisions of this Court, two command particular attention.

In Spratt v. Hermes the Court held that the Parliament may, pursuant to s 122, create or authorise the creation of courts with jurisdiction in respect of occurrences in or concerning a territory, without observing the requirements of s 72 of the Constitution in the appointment of the judicial officers constituting such courts. The members of the Court reached this conclusion by somewhat different routes but largely by reference to the concern of s 71 with "the Commonwealth considered in its federal aspect, and with courts created or invested with federal jurisdiction in that sense" ^[F153] .

Capital TV and Appliances Pty Ltd v. Falconer held that the Supreme Court of the Australian Capital Territory is not a federal court or a court exercising federal jurisdiction within the meaning of s 73 of the Constitution. Owen J said ^[F154] :

"It is a territorial court created by the Parliament pursuant to s 122 of the Constitution and not a 'federal court' within the meaning of Ch III".

Barwick CJ reconsidered the consequences of the reasoning in Bernasconi , saying ^[F155] :

"But in the end, I have come to the same conclusion, namely that ... the judicial power to which s 71 refers is that part of the totality of judicial power which the Commonwealth may exert which can be 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 not now to be overturned" ^[F156] .

Faced with Spratt v. Hermes and Capital TV and Appliances Pty Ltd v. Falconer , the plaintiffs submitted that the Court should now reject the correctness of the approach taken in those cases. They made that 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 understanding of the federal structure and nature of 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(ii) of the Constitution. As they put it, the decisions can be "shorn of their supporting reasoning".

Central to the plaintiffs' argument was the submission that the territories form an integral part of the Commonwealth and of a single federal system. The point was made by Menzies J in Spratt v. Hermes when he said ^[F157] :

"To me, it seems inescapable that Territories of the Commonwealth are parts of the Commonwealth of Australia and I find myself unable to grasp how what is part of the Commonwealth 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 the Commonwealth."

Certainly that statement finds support in the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) which recites that "the people ... have agreed to unite in one indissoluble Federal Commonwealth ... under the Constitution hereby established". It followed from these considerations, the plaintiffs submitted, that with the Constitution established to govern a system of which the territories formed part there was no reason to exclude the territories from the separation of powers implicit in Ch III.

As noted, there are judgments of this Court in which the relationship of s 122 to the Constitution generally has been discussed. Thus in Spratt v. Hermes Windeyer J said ^[F158] :

"[T]he power to make laws for the territories under s 122 is not independent of and uncontrolled by other provisions of the Constitution ... The Constitution must be read as a whole, an instrument of government for a nation and its people, the Commonwealth of Australia".

In Australian Capital Television Pty Ltd v. The Commonwealth ^[F159] Gaudron J said of Spratt v. Hermes and Bernasconi :

"[I]t does not follow from those or any of the other cases decided with respect to s 122 that it stands apart from other provisions of the Constitution with its meaning and operation uninfluenced by them".

In Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F160] Brennan, Deane and Toohey JJ referred to the judgment of Kitto J in Lamshed v. Lake ^[F161] and concluded:

"It would therefore be erroneous to construe s 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope."

The plaintiffs' argument, in short, is that separation of powers is an element of the Constitution, that laws enacted pursuant to s 122 are exercises of the legislative power of the Commonwealth and are laws of the Commonwealth and that an exercise of judicial power conferred by any law made by the Parliament is an exercise of the judicial power of the Commonwealth. Consequently a law of the Commonwealth, including a law made pursuant to s 122 conferring judicial power, must comply with the requirements of Ch III.

There is another way of approaching this question and that is to see the Constitution as vesting legislative power exclusively in the Parliament, executive power exclusively in the Governor-General and judicial power exclusively in the courts created by the Parliament. Chapter III then is seen as a manifestation of the separation of powers which the Constitution mandates. In Leeth v. Commonwealth ^[F162] Deane J and I said:

"Again, the Constitution contains no detailed statement of the content or implications of the doctrine of the separation of judicial power from executive and legislative powers which it implements by expressly vesting the judicial power of the Commonwealth in Ch III courts (s 71), the legislative power of the Commonwealth in the Parliament (s 51) and the executive power of the Commonwealth in the Crown (s 61). The adoption of that doctrine of the common law as part of the very structure of the Constitution is, however, apparent." (footnote omitted)

The argument in support of the proposition that Ch III of the Constitution does extend to the Territories is very persuasive. But the plaintiffs still face a formidable obstacle in the path of their argument. In general terms, the power to order involuntary detention is an incident of judicial power. In Chu Kheng Lim v. Minister for Immigration ^[F163] Brennan, Deane and Dawson JJ spoke of

"the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of ... powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts".

That proposition was affirmed by a majority of the Court in Kable v. DPP (NSW) ^[F164] .

However, both decisions recognise that there are qualifications to the general proposition that involuntary detention is necessarily an incident of the judicial function of adjudging and punishing criminal guilt. The qualifications to which Brennan, Deane and Dawson JJ referred include detention in cases of mental illness or infectious disease and committal to custody awaiting trial. Their Honours left open "whether the defence power in times of war will support an executive power to make detention orders" ^[F165] . And in Lim itself the Court upheld a law conferring upon the executive authority to detain an alien in custody for the purposes of expulsion or deportation. The point is that there are qualifications to the general proposition so that it cannot be said in absolute terms that the power to detain in custody is necessarily an incident of judicial power.

Judged by current standards, the involuntary detention of an Aboriginal pursuant to such a provision as s 16 of the Ordinance could hardly be brought within any of the recognised exceptions to the general proposition. Conscious of this, the Commonwealth submitted that the welfare and protection object of the legislation must be judged by the values and standards prevailing at the time. The plaintiffs' reply was that, even by the standards prevailing in 1918, the Ordinance was one which expressly contemplated permanent institutionalisation and carried an unqualified power of indefinite detention, unlimited by the objects or circumstances of necessity said to justify that power.

A welfare purpose is evident in the legislation, emphasised by the legislative history to which reference has been made. The Chief Protector (and later the Director) was the legal guardian of Aboriginals. His duties, identified in s 5(1), included the distribution of forms of "relief or assistance to the aboriginals", the supply of food and shelter, medicine, provision for custody, maintenance and education and

"(f) to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud".

Section 6(1) empowered the Chief Protector

"to 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 to do so".

The responsibility for welfare cast upon the Chief Protector is at odds with the notion that the powers conferred by the Ordinance are of themselves punitive and necessarily involve the exercise of judicial power ^[F166] . And this is the argument with which we are presently concerned. While this does not necessarily provide an answer to other bases of the plaintiffs' claim, the argument based on judicial power cannot succeed.

Free exercise of religion

Section 116 of the Constitution provides inter alia:

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion".

There are statements in several decisions of the Court in support of the proposition that s 116 is applicable to an exercise of power under s 122. In Lamshed v. Lake Dixon CJ, with whom Webb, Kitto and Taylor JJ agreed said ^[F167] that he did not "see why s 116 should not apply to laws made under s 122" ^[F168] . There is nothing in the nature of s 116 that bears only upon the relationship between the Commonwealth and the States. And this is so even though the provision is found in Ch v. "The States". For instance, s 118, which is also in Ch V, requires that full faith and credit shall be given throughout the Commonwealth "to the laws, the public Acts and records, and the judicial 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 their claim lies in demonstrating that the Ordinance is a law "for prohibiting the free exercise of any religion". Section 116 "is directed to the making of law. It is not dealing with the administration of a law" ^[F169] . The use of the word "for" indicates that "the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character" ^[F170] . "Purpose" in this context "refers to an end or object which legislation may serve ... it is the Court which must decide whether the measure possesses the requisite character" ^[F171] . It does not follow that there is only one purpose to be discerned in a law; there may be more than one. The question should therefore be asked: was a purpose of the Ordinance to prohibit the free exercise of the religion of the Aboriginals, to whom the Ordinance was directed? It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, though this is something that could only be demonstrated by evidence. But I am unable to discern in the language of the Ordinance such a purpose.

The Commonwealth 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 beliefs. It may be that this shortcoming only precludes a claim for damages by the plaintiffs. In any event, it does not stand in the way of a declaration that the Ordinance was invalid if the Court is satisfied that it was for a purpose of prohibiting the free exercise of religion.

In their written submissions the plaintiffs have referred to official reports and correspondence which, they say, evidence the very purpose of the policy embodied in the Ordinance as the removal of half-caste children to prevent them from assimilating the "habits, customs and superstitions of the full-blooded aboriginals". Assuming that the material in question is admissible in the construction of the Ordinance ^[F172] , it cannot be relied upon in the proceedings as they are now before the Court. The possibility of sustaining the claim by reference to extrinsic material does not warrant giving a qualified answer to so much of Question 1 as is relevant to this head of the plaintiffs' claim. As the matter has come before the Court, the claim under "free exercise of religion" must fail and the question answered accordingly.

Genocide

In their amended statements of claim the plaintiffs plead that the Ordinance, in particular ss 6, 7, 16 and 67 in so far as the latter purported to confer power to make relevant regulations, was invalid because

" it was contrary to an implied constitutional right to freedom from and/or immunity from any law, purported law or executive act:

A. providing for or having 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 ethnic group, solely by reason of their membership of that group, to the legal disability of removal and detention away from the group; or

C. constituting or authorising the crime against humanity of genocide by, inter alia, providing for, constituting or authorising:

(i)

the removal and transfer of children of a racial or ethnic group in a manner which was calculated to bring about the group's physical destruction in whole or in part;

(ii)

actions which had the purpose, the effect or the likely effect of causing serious mental harm to members of a racial or ethnic group; and

(iii)

the deliberate infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part".

On its face then the claim to invalidity is anchored firmly 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 Convention 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 12 January 1951, more than 30 years after the Ordinance was enacted. The provisions of the Genocide Convention do not form part of Australian municipal law since they have not been incorporated by statute ^[F173] . 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 construction of a statute or subordinate legislation which is ambiguous ^[F174] .

No doubt because of the relationship in time between the Ordinance and the ratification of the Genocide Convention, the plaintiffs also argued that the latter reflected a norm of international law and that the Ordinance should be construed on the footing that s 122 was not intended to confer power to make a law authorising acts in conflict with that norm.

On its face the relevant paragraph of each statement of claim gives rise to difficult questions of implied constitutional freedoms and immunities. But because of the way in which this part of the claim was argued, the focus must be on Art II of the Genocide Convention in which, relevantly, genocide is defined inter alia to mean

" any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

...

(d)

Imposing measures intended to prevent births within the group;

(e)

Forcibly transferring children of the group to another group".

Each of the "acts" which spells out genocide is qualified by the opening words "with intent to destroy". There is nothing in the Ordinance, according to it the ordinary principles of construction, which would justify a conclusion that it authorised acts "with intent to destroy, in whole or in part" the plaintiffs' racial group.

Once again, at the risk of undue repetition, it is necessary to keep in mind that it is the validity of the Ordinance, not any exercise of power under the Ordinance, which is the subject of these proceedings.

Freedom of movement and association

The plaintiffs plead, in each statement of claim, that the Ordinance was

"contrary to an implied constitutional right to and/or guarantee of freedom of movement and association".

This was reformulated in argument to a

"constitutional right to and immunity from legislative and executive restrictions on freedom of movement and association for political, cultural and familial purposes".

In Cole v. Whitfield ^[F175] the Court said that to give content to the words "intercourse" and "absolutely free" in s 92, there must be a guarantee of personal freedom "to pass to and fro among the States without burden, hindrance or restriction" ^[F176] . The plaintiffs do not rely upon s 92 or upon the express language of any other section of the Constitution. The freedom upon which they rely is said to be implicit in the Constitution, rather in the way in which Murphy J, in Buck v. Bavone ^[F177] , spoke of the right of persons to move freely across or within State borders as "a fundamental right arising from the union of the people in an indissoluble Commonwealth". It is true that this observation was disapproved in Miller v. TCN Channel Nine Pty Ltd ^[F178] but the trend of more recent authority calls for further consideration of the matter in an appropriate context.

In Nationwide News Pty Ltd v. Wills ^[F179] Deane J and I spoke of "three main general doctrines of government which underlie the Constitution and are implemented by its provisions". The third of these we described as

"the doctrine of representative government, that is to say, of government by representatives directly or indirectly elected or appointed by, and ultimately responsible to, the people of the Commonwealth. The rational basis of that doctrine is the thesis that all powers of government ultimately belong to, and are derived from, the governed".

Later we said ^[F180] :

" The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person."

In McGinty v. Western Australia ^[F181] I said:

" Recent decisions of the Court have held that the Australian Constitution prescribes a system of representative democracy or representative government. The terms have been used somewhat interchangeably".

The "recent decisions" included Nationwide News Pty Ltd v. Wills and also Australian Capital Television Pty Ltd v. The Commonwealth ^[F182] , Theophanous v. Herald & Weekly Times Ltd ^[F183] and Stephens v. West Australian Newspapers Ltd ^[F184] . Notwithstanding differences of opinion expressed by Justices in those cases, the Court's recognition of a freedom of communication and discussion of political matters derived from the Constitution is beyond question in the light of Lange v. Australian Broadcasting Corporation ^[F185] .

The plaintiffs identify a freedom of movement and association "for political, cultural and familial purposes". Although their argument was directed to these broad purposes, its focus was on the prohibition of or restrictions on political communication. That is not surprising, given the recent trend of authority in this Court. However the preponderance of recent decisions should not conceal the early recognition by the Court of the rights of the citizens of a federation. In R v. Smithers; Ex parte Benson ^[F186] Barton J said of the judgment of Miller J in Crandall v. State of Nevada ^[F187] :

"The reasoning shows that the creation of a federal union with one government and one legislature in respect of national affairs assures to every free citizen the right of access to the institutions, and of due participation in the activities of the nation."

To speak of political communication is in some ways to understate the true nature of the freedom which it entails. As Mason CJ commented in Australian Capital Television Pty Ltd v. The Commonwealth ^[F188] :

" Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community."

And, as Brennan J observed in Nationwide News Pty Ltd v. Wills ^[F189] :

"But where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government."

In Theophanous v. Herald & Weekly Times Ltd ^[F190] Mason CJ, Toohey and Gaudron JJ adopted the observation of Barendt ^[F191] that

"'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about".

Nothing said in Lange diminishes the scope of the implied freedom as I have identified it; rather the decision reinforces it. Certainly Lange endorsed what had been said in earlier decisions, namely, that the freedom of communication which the Constitution protects is not absolute.

"It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution." ^[F192]

In Re Public Service Employee Relations Act ^[F193] McIntyre J described freedom of association as "one of the most fundamental rights in a free 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 ingredient of political communication, 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 ^[F194] . Indeed, the freedom necessarily extends to all the people of the Commonwealth ^[F195] .

I agree with Gaudron J that in order for 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 matters relevant to their government and to discuss those matters amongst themselves. As her Honour observed in Australian Capital Television Pty Ltd v. The Commonwealth ^[F196] :

"[A]s the matters entrusted to the Commonwealth 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 ^[F197] . 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 an informed choice for the House of Representatives and the Senate. But the freedom of communication is not so confined. As McTiernan and Jacobs JJ observed in Attorney-General (Cth); Ex rel McKinlay v. The Commonwealth ^[F198] :

"The people is the body of subjects of the Crown inhabiting the Commonwealth regarded collectively as a unity or whole, and the sum of those subjects regarded individually."

For these reasons it is no answer 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 Territory 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 flow 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 citizens.

Although the plaintiffs assert a "right of association", in truth they claim a limitation on legislative power to restrict the freedom of association which 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 Commonwealth's alternative defence ^[F199] that

"(i)

the Aboriginals Ordinance was enacted and amended for the purpose of the protection and preservation of persons of the Aboriginal race; and

(ii)

at all material times the Aboriginals Ordinance was capable of being reasonably considered 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 I had discussed it in Leask v. 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 ^[F200] . Put another way, the relevant provisions of the Ordinance must not be disproportionate to what was reasonably necessary for the protection and preservation of the Aboriginal people of the Northern Territory.

Whether the inquiry is in the terms as I have just expressed it, or whether it be in terms of reasonably appropriate and adapted to serve a legitimate end ^[F201] , it is relevant to consider the standards and perceptions prevailing at the time of the Ordinance. That is not to say that those standards and perceptions necessarily conclude the matter; the infringement of a relevant freedom may be so fundamental that justification cannot be found in the views of the time. But the Ordinance does have a welfare character and questions of proportionality and adaptedness cannot exclude the prevailing perceptions. That, I think, is clear from the views expressed in Cheatle v. The Queen ^[F202] where the Court said of the unchanging elements of trial by jury:

"The restrictions and qualifications of jurors which either advance or are consistent with it may, however, vary with contemporary standards and perceptions."

Again, in Attorney-General (Cth); Ex rel McKinlay v. The Commonwealth ^[F203] McTiernan and Jacobs JJ said of s 24 of the Constitution:

" The words 'chosen by the people of the Commonwealth' fall to be applied to different circumstances at different times ... It depends in part upon the common understanding of the time".

Powerful arguments can be mounted for saying that the powers conferred on the Chief Protector (and Director) were so extensive that reference to prevailing perceptions cannot save them. But, in my view, the manner in which these issues come before the Court means that an inquiry into those perceptions cannot be excluded. It follows that while the legislative power conferred by s 122 of the Constitution is restricted by the freedom of movement and association implied in the Constitution, it is not possible to say at this stage of the proceedings that the impugned provisions of the Ordinance are necessarily invalid on that account. No question arises independently as to the validity of the Administration Act.

If any of the provisions of the Ordinance were held invalid, it does not follow that the conclusion would ground a right of action in damages against the Commonwealth which is distinct from a right of action in tort or for breach of contract ^[F204] . The implied limitation operates as a restriction on legislative power, not as grounding a cause of action ^[F205] . It means that, in response to any common law claim for trespass or false imprisonment, the authority conferred by the Ordinance to take Aboriginals into custody must yield to the freedom of association implied by the Constitution.

Legal equality

In Leeth v. The Commonwealth ^[F206] Deane J and I spoke of a doctrine of legal equality, having two distinct but related aspects.

The first is the subjection of all persons to the law. The second, that upon which the plaintiffs relied to impugn provisions of the Ordinance, involves the underlying or theoretical equality of all persons under the law and before the courts. In Leeth we concluded, for the reasons there given, that while the Constitution did not spell out such a doctrine in express words, it adopted it as a matter of necessary implication. Those reasons included "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. In Street v. Queensland Bar Association ^[F207] I said, 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 be a commonwealth in which the law was to apply equally to all its citizens".

In Leeth we added ^[F208] :

" The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or different localities may necessarily be directed to some, but not all, of the people of the Commonwealth." (footnote omitted)

In the same case Brennan J accepted a principle of equality, 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 prisoner. As to the former his Honour said ^[F209] :

"It would be offensive to the constitutional unity of the Australian people 'in one indissoluble Federal Commonwealth' ... to expose offenders against the same law of the Commonwealth to different maximum penalties dependent on the locality of the court by which the offender is convicted and sentenced."

Gaudron J spoke in terms of judicial power, saying ^[F210] :

" It is an essential feature of judicial power that it should be exercised in accordance with the judicial process ...

All are equal before the law. And the concept of equal justice - a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such - is fundamental to the judicial process."

It follows that a view of Leeth which confines any doctrine of equality to the joint judgment of Deane J and myself does less than justice to the reasons of Brennan J and Gaudron J.

Because equality is derived from the Constitution, it is no answer to refer to laws in which Aboriginals or other groups have been treated unequally. However, a particular law may not infringe the principle, for the reasons Deane J and I identified in Leeth . The Constitution mentioned Aboriginals only twice; one of those provisions has been amended, the other repealed. Section 51 of the Constitution empowered the Parliament to make laws with respect to:

"(xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws".

The words "other than the aboriginal race in any State" were later deleted ^[F211] . Section 127, which was repealed by s 3 of the same Act, read:

"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."

Referring to par (xxvi) before it was amended, Professor Sawer commented ^[F212] :

" The exclusion of the aborigines may not necessarily have been against their interests in accordance with the ideas of the time; while they might have lost the possibility of Commonwealth laws for their protection and advancement, so far as such laws had to depend on (xxvi), they were also saved from the sort of laws against their interests which were uppermost in the minds of the delegates as likely to be passed pursuant to the placitum."

Both provisions are negative and, as Professor Sawer further observed ^[F213] :

"It is contrary to common sense to attribute to them any more 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 ^[F214] . It is unnecessary to pursue the steps that were taken in this regard; the matter is explored in a recent article by Professors Galligan and Chesterman who conclude that nothing in the Constitution excluded Aboriginals from Australian citizenship ^[F215] . 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 between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. Indeed, in Leeth ^[F216] Deane J and I spoke of the fact that

"a legislative power to make special laws with respect to a particular class of persons, such as aliens (Constitution, s 51(xix)) or persons of a particular race (s 51(xxvi)), necessarily authorizes discriminatory treatment of members of that class to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership".

Of course, during the period of the Ordinance s 51(xxvi) excluded "the aboriginal race in any State". It is not that sub-section with which we are directly concerned ^[F217] . 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.

The preamble to the Constitution recites that "the people ... have agreed to unite in one indissoluble Federal Commonwealth" ^[F218] . These words "proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern" ^[F219] . To repeat what Deane J and I said in Leeth ^[F220] :

"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 by the will of the people, save to the extent that the Constitution itself permits discriminatory treatment in the sense discussed in these reasons.

When the Ordinance is analysed and placed in its historical setting, is it reasonably capable of being 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 be assessed by reference to what was reasonably capable of being seen by the legislature at the time as a rational and relevant means of protecting Aboriginal people against the inroads of European settlement. That is a matter of evidence. It cannot be determined by reference to the pleadings. Hence the answer to this component of the question can only be a qualified one.

Again, if by reason of the application of this doctrine of legal equality any of the impugned provisions were held invalid, this would serve to meet a defence founded on the Ordinance to a common law claim for trespass or false imprisonment.

Application of Limitation Laws

I have read what Gaudron J has written on this aspect. It is unnecessary to express any view on the matters canvassed by her Honour, save to agree that because 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(a). Question 7(b) therefore does not arise.

Conclusion

It follows from these reasons that I would in each matter answer the questions reserved as follows:

Q1 The legislative power conferred by s 122 of the Constitution is restricted by an implied freedom of movement and association as identified in these reasons and by the principle of legal equality. But it is not possible, at this stage of the proceedings, to say whether the Ordinance or any of its provisions was thereby invalid.

Q2 No.

Q3 Each of the matters pleaded in par 29(d) and (e) of the amended defence (Kruger) and par 26(d) and (e) of the amended defence (Bray) is relevant.

Q4 Does not arise.

Q5 Does not arise.

Q6 Does not arise.

Q7(a) Inappropriate to answer.

(b) Does not arise.