Legal database - View: Cases: Newcrest Mining (WA) Ltd v Commonwealth

Newcrest Mining (WA) Ltd & Another v Commonwealth & Another
(1997) 190 CLR 513

(Judgment by: Gummow J)

NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE

Court:

HIGH COURT OF AUSTRALIA

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh

Gummow Kirby JJ

Subject References:
CONSTITUTIONAL LAW
Validity of proclamations made under National Parks and Wildlife Conservation Act 1975 (Cth)
Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution.
Characterisation of a law capable of dual characterisation
Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation.
Meaning of "acquisition of property" in s 51(xxxi) of the Constitution
Whether proclamation prohibiting mining effects an acquisition of mining tenements.
MINING
Validity of mining leases
Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth)
Whether right of renewal in existence.
Whether government approval or authority necessary for renewal of particular lease
Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth).

Other References:
Constitution of the Commonwealth, ss 51(xxxi), 122.
Northern Territory (Self- Government) Act 1978 (Cth) ss 50(2), 70.
Northern Territory (Administration) Act 1910 (Cth).
National Parks and Wildlife Conservation Act 1975 (Cth).
National Parks and Wildlife Conservation Amendment Act 1987 (Cth).
Mining Ordinance 1939 (NT).
Mining Act 1980 (NT).

Judgment date: 14 AUGUST 1997

Judgment by:
Gummow J

Introduction

On 2 June 1953 at what thereafter was named Coronation Hill deposits of uranium were discovered in the Northern Territory ("the Territory"). In this litigation, the appellants rely upon what they say were 25 mining tenements granted in the area at different times between 1947 and 1974. The last original grants to expire did so on 31 December 1994. Others were purportedly renewed between 1978 and 1989. It will be necessary later in these reasons to examine more closely the nature of these interests. They were originally created under the Mining Ordinance 1939 (NT) ("the 1939 Ordinance") for a term of years expiring on 31 December in the 21st year after the grant. The 1939 Ordinance was made under the Northern Territory (Administration) Act 1910 (Cth) ("the 1910 Act").

The Northern Territory (Self- Government) Act 1978 (Cth) ("the Self-Government Act") repealed the 1910 Act. With effect on 1 July 1978, it established the Northern Territory of Australia as a body politic under the Crown (s 5) and provided for the Legislative Assembly of the Northern Territory to have power, subject to the Act, to make laws for the peace, order and good government of the Territory (s 6). A law made by that legislature, the Mining Act 1980 (NT) ("the 1980 Act"), repealed the 1939 Ordinance with effect 1 July 1982. The Commonwealth contends that the Self- Government Act did not preserve any right of renewal of the mining tenements. However, in reliance upon the 1980 Act the Government of the Territory gave to the tenements the numbers MLN 19, MLNs 23-28, MLNs 78-89, MLNs 751-756 ^[F203] .

By agreement dated 18 March 1987 the second appellant, BHP Minerals Limited ("BHP"), sold certain mining tenements (including those with which this litigation is concerned) to the first appellant, Newcrest Mining (WA) Limited ("Newcrest"). Until 18 April 1991, Newcrest was named BHP Gold Mines Ltd. BHP, before a change of name on 2 November 1981, had been named Dampier Mining Company Limited. The sale of the titles was implemented by an instrument of transfer which was executed on 20 May 1987, approved by a delegate of the Territory Minister for Mines and Energy pursuant to s 173 of the 1980 Act in June 1987, and thereafter registered against the titles. No approval to the transfer was sought from the Commonwealth.

In October 1989, the federal Cabinet decided that the area of what was known as Stage 3 of the Kakadu National Park ("Kakadu") should be significantly increased. To give effect to that decision, on 13 November 1989, a proclamation extending the area of Kakadu was made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act"). This statute had been amended by the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the 1987 Act"), which had inserted s 10(1A) of the Conservation Act. Section 10(1A) stated that "[n]o operations for the recovery of minerals shall be carried on in Kakadu National Park." The result, if effective in law, was to prohibit Newcrest (or any other person) from exploiting the relevant mining tenements, MLNs 78-89. Moreover, s 7 of the 1987 Act provided:

"Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act."

Stage 3 of Kakadu was further extended by proclamation made 21 June 1991, so as to apply s 10(1A) of the Conservation Act to the balance of the 25 mining tenements. I will identify the proclamations of 13 November 1989 and 21 June 1991 as "the Proclamations".

Each of the Proclamations was expressed as amending a proclamation under s 7(2) of the Conservation Act which had been made on 5 April 1979. This had established what was known as Stage 1 of Kakadu by declaring the area specified in the proclamation to be a park for the purposes of the Conservation Act. Section 7(6) and (7) provides:

"(6) Where an area is declared by Proclamation to be a park or reserve:

(a)
the subsoil beneath any land within the area, extending to such depth below the surface as is specified in the Proclamation;

(b)
the waters and sea-bed beneath any sea within the area; and

(c)
the subsoil beneath any such sea-bed, extending to such depth below the sea-bed as is specified in the Proclamation;

shall be taken to be within that park or reserve.

(7) Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director."

The Director of National Parks and Wildlife ("the Director") is a corporation established by s 15 of the Conservation Act.

Consistently with s 7(6) and (7), the proclamation of 5 April 1979 specified the depth of 1,000 metres below the surface of any land within Kakadu as the depth below that surface to which subsoil beneath that land was to be taken to be within Kakadu and, save in respect of any minerals, the interest held by the Commonwealth was vested in the Director.

The effect of the Proclamations was to extend the scope of the earlier proclamation and s 7(6) and (7) had corresponding operation for the additional areas of Kakadu.

The appellants complain that the combined effect of the Proclamations made under s 7(8), with s 7(2), (7) and s 10(1A) was that, upon the Proclamations taking effect in respect of the increased areas of the park, the Commonwealth acquired Newcrest's interest in the subject land and the minerals and the Director acquired the interest of the Commonwealth in the land other than the minerals. They further say that this result was brought about without observance of the constitutional requirement of just terms, and that the Director has prevented Newcrest from exercising its rights under its mining tenements.

The appellants submit that the Proclamations were an exercise of power conferred by legislation supported by s 51(xxix) of the Constitution, but not by s 122. In particular, they point to the operation of the Conservation Act beyond the confines of the Territory and the substantial measure of self-government enjoyed in the Territory as indicators that the statute was not intended to be an exercise of power under s 122. I would resolve the constitutional issues on the footing that s 122 does apply, and hold that, even so, and whether or not s 51(xxix) also applies, the constitutional requirement of just terms is attracted.

Statutory right to compensation

It is convenient at this stage and before turning to the history of the litigation to deal with a particular issue of construction of the 1987 Act which stands somewhat apart from the other issues in the litigation. The appellants point to the fact that at the commencement of the 1987 Act on 18 May 1987 neither of the Proclamations had been made. The consequence was that Kakadu did not then include the areas where the relevant mining tenements were situated.

The argument proceeds by reference to s 50(2) of the Self-Government Act. The text is set out later in these reasons. It provided that the acquisition of any property in the Territory which, if it were in a State, would attract s 51(xxxi) of the Constitution, was not to be made otherwise than on just terms. The submission is that s 50(2), as a matter of statute, bound the Commonwealth to provide just terms upon the later acquisition of the mining tenements by or pursuant to the Proclamations and the operation of s 10(1A) of the Conservation Act which was also enacted by the 1987 Act. The appellants claimed that was so notwithstanding the operation of s 7 of the 1987 Act and irrespective of any operation in the Territory of the constitutional guarantee in s 51(xxxi).

In essence, the appellants submit that the phrase in s 7 of the 1987 Act "by reason of the enactment of this Act" identifies the effect that the 1987 Act had at the time of its enactment and does not extend to subsequent events brought about by or pursuant to the later operation of s 10(1A) in an expanded area of Kakadu. The result, on the appellants' case, is that the denial of liability to pay compensation otherwise required by reason of s 50(2) of the Self- Government Act does not operate in respect of that expanded area. Section 50(2) is said to apply with its full force.

However, s 3 of the 1987 Act inserted a definition of "Kakadu National Park" in s 3 of the Conservation Act. This defined Kakadu as meaning "the area for the time being" declared under s 7 of the Conservation Act to be the park of that name. The consequence was that, by the enactment of the 1987 Act, the area comprised within Kakadu was given an ambulatory meaning for the purposes of s 10(1A) of the Conservation Act and s 7 of the 1987 Act. The later Proclamations expanded the area covered by the definition of Kakadu. In so far as there was an acquisition of property of Newcrest, this was something which came about "by reason of" the enactment of the 1987 Act. Accordingly, s 7 thereof applied, according to its terms and "notwithstanding" anything in the Self-Government Act.

The litigation

In 1992, Newcrest commenced an action in this Court in which it sought a declaration that the extension of the area of Kakadu by the Proclamations and the provisions of the Conservation Act under which they were made are invalid. Newcrest also sought a declaration of its entitlement to exercise all rights granted by the relevant mining tenements and such further or other order as this Court deemed fit. The Commonwealth was the first defendant. The second defendant was the Director.

On 8 October 1992, this Court made an order remitting to the Federal Court the part of the action that excluded issues of invalidity by reason of s 51(xxxi) of the Constitution in its application to s 122 of the Constitution.

In the Federal Court, BHP was added as second applicant ^[F204] . Issues were agitated as to the effect of the provisions of the Conservation Act, the Self-Government Act, the 1939 Ordinance and the 1980 Act. These and other issues of estoppel, election, waiver and related matters were tried by French J. After a lengthy trial, his Honour delivered judgment on 3 November 1993 ^[F205] .

French J held that the mining leases were held from the Commonwealth, not from the Northern Territory; that the Commonwealth was precluded by its conduct from asserting that the transfer of the leases by BHP to Newcrest was ineffective; that the interest of the Commonwealth in any minerals under the land comprising Kakadu was subject to the rights enjoyed by Newcrest and BHP under the mining leases; that, with one exception (MLN 19), the mining leases had been validly renewed; and that, to the extent that the mining leases had not been validly renewed, the Commonwealth was not precluded from asserting the invalidity of those leases. His Honour gave liberty to apply for further directions as to the disposition of the action.

On appeal to the Full Court of the Federal Court ^[F206] , it was held that the orders made by French J should be set aside. The majority of the Full Court held that at the respective times of the Proclamations MLN 19, MLNs 23-28 and MLNs 751-756 were no longer in force because they had not been validly renewed. The declarations made by French J were replaced by a narrower declaration, namely that Newcrest was the lawful lessee of mining leases MLNs 78-89 but that this was subject to the operation of the Proclamations made under the Conservation Act. MLNs 78-89 expired on 31 December 1994. The grant of special leave to appeal to this Court from the orders of the Full Court was limited so as to exclude any argument that the respondents are estopped or in any other way precluded from arguing that the mining leases or any of them were not renewed. By order of the Chief Justice made 21 May 1996, there was reserved for the consideration of the Full Court the constitutional question which had been excepted from the remitter to the Federal Court.

Newcrest and BHP challenge the decision of the Full Court upon various issues of statutory construction, with the objective of establishing their entitlement to mining leases in addition to MLNs 78-89. Upon the outcome of the constitutional question depends the retention by the appellants of the relief they obtained in the Full Court with respect to MLNs 78-89. The Commonwealth and the Director rely upon an answer upon the constitutional question which is favourable to them to deny any prospect of success by the appellants in obtaining relief with respect to the other mineral interests. The respondents also, by Notice of Contention, seek to support the Full Court decision by non- constitutional arguments directed particularly to MLN 19 and MLN 24.

The threshold constitutional question is whether any acquisition by the respondents of property which was effected by the Proclamations, the enabling provisions thereof and s 10(1A) of the Conservation Act operated free from any constitutional imperative that the acquisition be accompanied by the provision of just terms. On the footing, mentioned earlier in these reasons, that the legislation in question is supported by s 122, the question thus becomes one of the interrelation between par (xxxi) of s 51 and s 122 of the Constitution. To this aspect of the case I first turn.

Section 51(xxxi) and s 122 of the Constitution

Section 51(xxxi) is one of several provisions in the Constitution for the acquisition or vesting of property with a requirement of compensation. Section 69 provides for the transfer to the Commonwealth of certain departments of the public service in each State. Section 85 deals as follows with the consequences of such transfer:

"When any department of the public service of a State is transferred to the Commonwealth -

(i)
All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary:

(ii)
The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth:

(iii)
The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament:

(iv)
The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred."

In one of its operations (s 85(i)), the section of its own force vests certain property of a State in the Commonwealth and in another (s 85(ii)), it empowers the Commonwealth to acquire certain property of a State. But in either case this is subject to the obligation of the Commonwealth to compensate the State, with the mode of compensation, in default of agreement, to be determined under laws to be made by the Parliament (s 85(iii)).

Broader provision for the acquisition of property from any State is made by s 51(xxxi), but here legislation is essential. There is no vesting of property by force of the Constitution itself. Further, par (xxxi) goes beyond the acquisition of property by one polity from another, by providing for the acquisition of property "from any State or person". The appellants say that they are persons to which the provision is directed, that there has been an acquisition of property and that they have been denied just terms.

Section 51(xxxi) of the Constitution states:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

...

(xxxi)
The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".

In Mutual Pools & Staff Pty Ltd v. The Commonwealth ^[F207] , Mason CJ said:

"[T]he effect of s 51(xxxi) when read in conjunction with the other legislative powers of the Parliament is that, subject to any contrary intention, it forbids the making of laws with respect to the acquisition of property from any State or person for a relevant purpose on terms that are not just ^[F208] . Consequently, a law with respect to the acquisition of property must comply prima facie with the requirement of just terms."

The result is, as his Honour put it ^[F209] , that "the other legislative powers reposed in the Parliament must be construed so that they do not authorize the making of a law which can properly be characterized as a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms". Mason CJ qualified that general statement with the words "apart from s 122 which stands in a separate position" ^[F210] and added in a footnote "[s]ee Teori Tau v. The Commonwealth (1969) 119 CLR 564 at 570". This reflected the current state of authority, which had not been challenged by counsel in Mutual Pools .

The appellants now seek to challenge Teori Tau v. The Commonwealth ^[F211] , and to remove the qualification to which Mason CJ referred. They seek to establish that, while s 122 does authorise the making of a law with respect to the acquisition on just terms of property for the government of any territory, it does not authorise the making of a law which does not provide for just terms. In this way, they submit, s 51(xxxi) operates "to reduce the content" ^[F212] of the grant of legislative power in s 122, so that there is "excluded or abstracted" ^[F213] from s 122 the power to make laws "without the safeguard" ^[F214] of just terms.

Section 122 states:

"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."

A power to make laws "for the government" of a territory on its face includes laws exercising a right of "eminent domain". Before the establishment of the Australian federation, the United States Supreme Court had decided that, in respect of lands in the territories, Congress had such a legislative power, subject to the requirement of "just compensation" imposed by the Fifth Amendment to the Constitution ^[F215] . In Australia, the Parliament of the Commonwealth has proceeded on a corresponding footing ^[F216] .

In recent times, laws have been made by the Parliament to oblige territory legislatures to provide just terms. Section 50(1) of the Self-Government Act provides that the power of the Legislative Assembly conferred in broad terms by s 6 thereof "does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms". The Legislative Assembly for the Australian Capital Territory has, in general, no power to make laws with respect to the acquisition of property otherwise than on just terms: Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23(1)(a), s 23(2).

The appellants contend that, were it not for the obstacle placed in their path by the decision in Teori Tau v. The Commonwealth , consideration of the Constitution as a whole would indicate an answer favourable to their case. By its very terms, par (xxxi) appears to draw in all powers of the Parliament to make laws, from whatever source in the Constitution they are derived. The terms of the acquisition power refer, for example, to an acquisition associated with the exercise of the defence power in s 51(vi) as much as to an acquisition related to the exercise of legislative power under s 122. The appellants submit that "[a]lways the Constitution remains the text" ^[F217] .

Section 51(xxxi) speaks of "[t]he acquisition of property ... from any State or person" not of the acquisition of property in a State from that State. A State may own property situated outside its territory. Nor does s 51(xxxi) speak of the acquisition of property "from any person in a State". Further, par (xxxi) confers a power "for any purpose in respect of which the Parliament has power to make laws" and one such purpose is found in s 122 (emphasis added).

There is, the appellants submit, no relevant distinction between the text of s 122 and that of s 51 in the application of par (xxxi) to other heads of power in the Constitution. These submissions should be accepted.

This case does not involve any operation of par (xxxi) in respect of the compulsory acquisition by one polity of the property of another polity. It is concerned with what, perhaps, has become the primary operation of par (xxxi). This is the making of laws by the Parliament for the compulsory acquisition of property "from any ... person", and not necessarily by the Commonwealth and its instrumentalities ^[F218] . At least in this operation, par (xxxi) has assumed "the status of a constitutional guarantee of just terms" and therefore "is to be given the liberal construction appropriate to such a constitutional provision". These propositions were so expressed in the joint judgment given in 1984 by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Clunies-Ross v. The Commonwealth ^[F219] , and were repeated by Mason CJ, Brennan, Deane and Gaudron JJ in Australian Tape Manufacturers Association Ltd v. The Commonwealth ^[F220] .

This liberal construction means, for example, that the guarantee applies to the indirect acquisition of what Dixon J called "the substance of a proprietary interest" ^[F221] . In Bank of NSW v. The Commonwealth ^[F222] , the Banking Act 1947 (Cth) provided for the undertaking of the private banks to be taken into the hands of agents of the Commonwealth, so that "in a real sense, although not formally", the banks and their shareholders were effectively deprived of "the reality of proprietorship". The Court held that the statute contravened par (xxxi).

However, par (xxxi) applies only to acquisitions of a kind that permit of just terms. There are laws in respect of which "just terms" is an incongruous notion. Thus, laws imposing a fine or a forfeiture do not involve acquisitions that permit of just terms ^[F223] . Otherwise, and as a general proposition, when par (xxxi) applies to another subject- matter of the legislative powers of the Commonwealth, it is to be regarded as limiting legislative power with respect to the acquisition of property for that purpose ^[F224] . From this proposition that the operation of par (xxxi) is to confine the content of other grants of legislative power there follows a further proposition. The operation of the paragraph is necessarily subject to "any contrary intention either expressed or made manifest by the words or content of those other grants of power" that they necessarily encompass acquisition of property without "the quid pro quo of just terms" ^[F225] . The power in s 51(ii) to make laws with respect to taxation is an example ^[F226] .

This point was further developed in the joint judgment of six members of the Court in Nintendo Co Ltd v. Centronics Systems Pty Ltd as follows ^[F227] :

"It is well settled that s 51(xxxi)'s indirect operation to reduce the content of other grants of legislative power is through the medium of a rule of construction, namely, that 'it is in accordance with the soundest principles of interpretation to treat' the conferral of 'an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification' ^[F228] . That operation of s 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms. Where that is so, the other grant of legislative power manifests a contrary intention which precludes the abstraction from it of the legislative power to make such a law ^[F229] ."

Section 51 confers power on the Parliament "to make laws for the peace, order, and good government of the Commonwealth with respect to" the enumerated heads of power. With certain exceptions referred to later in these reasons, each of these answers the description in par (xxxi) of "any purpose in respect of which the Parliament has power to make laws". Section 122 empowers the Parliament to make laws "for the government of any territory". The term "for", to adapt the words of Wilson J in Attorney-General (Vict); Ex rel Black v. The Commonwealth ^[F230] in construing s 116 of the Constitution, speaks of the purpose of the law in terms of the end to be achieved, namely the government of the territory in question. This identifies a legislative "purpose" within the meaning of par (xxxi). Such a conclusion is consistent with the following observations of Dixon CJ in Lamshed v. Lake ^[F231] :

"To my mind s 122 is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the Territory. The words 'the government of any territory' of course describe the subject matter of the power."

The addition of the words "of the Commonwealth" to the phrase in s 51 "laws for the peace, order, and good government" requires further attention. Their presence does not confine the heads of power in s 51 so as to restrict the postal power to an operation with respect to the States, the borrowing of money on the public credit of the Commonwealth to borrowing in States, the census to those found in States, and the currency, coinage and legal tender to that circulating or proffered in the States ^[F232] . Rather, the government referred to in the phrase "laws for the peace, order, and good government of the Commonwealth" is that of the body politic wherein and for which the laws made by the Parliament have the binding force specified in covering cl 5. The body politic comprises "the courts, judges, and the people of every State and of every part of the Commonwealth". Territories are parts of the Commonwealth within the meaning of covering cl 5 ^[F233] .

The basic proposition is that each provision of the Constitution, including s 122, is to be read with other provisions in the same instrument ^[F234] . Accordingly, and at least prima facie, par (xxxi) of s 51 and s 122 should be read together. Section 122 is not to be torn from the constitutional fabric.

In considering the operation of s 122, the starting point is the identification of "[t]he Parliament" which is to make the laws mentioned therein. That necessarily refers the reader to Ch I of the Constitution. The phrase in s 122, which is vital to the status of the Northern Territory, "surrendered by any State to and accepted by the Commonwealth" is a reference to s 111. The reference to "the extent" of "the representation of [a] territory in either House of the Parliament" is to be read with the phrase in s 121 "the extent of representation in either House of the Parliament". Section 121 does not contain the additional reference in s 122 to the terms on which representation may be allowed, a matter treated as highly significant by Mason J when upholding the validity under s 122 of the Senate (Representation of Territories) Act 1973 (Cth) in Western Australia v. The Commonwealth ^[F235] . His Honour proceeded on the footing that the Constitution is to be treated as one coherent instrument for the government of the Federation and said ^[F236] :

"Just as s 122 requires to be read with Ch I so also account must be taken of s 122 in the interpretation of ss 7 and 24."

Moreover, this Court more recently has held in Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F237] that the power conferred by s 122 upon the Parliament to create legislative institutions for a territory is limited by a requirement beyond that in s 122 itself that the law be one for the government of the territory. The nature of the taxation power (s 51(ii)) and the bounties power (s 51(iii)) and the evident intention of other provisions of the Constitution to create a type of free trade area comprising the geographical area of the Commonwealth require some qualification to the content of s 122. The result is that the Parliament may not establish a territorial legislature with the authority to impose duties of excise within the meaning of s 90 ^[F238] . In that case, the majority of the Court determined that the Territory legislation in question was enacted pursuant to a new legislative power and by a separate legislative body armed with general legislative authority. The Territory law was not made in exercise of the legislative power of the Commonwealth. In reaching that conclusion, Brennan, Deane, Toohey and Gaudron JJ relied upon the analysis to the same effect, with respect to the Northern Territory, by Wilson J in R v. Toohey; Ex parte Northern Land Council ^[F239] .

It is true in at least two respects that the legislative power conferred by s 122 may be "of a different order" ^[F240] to those concurrent heads of legislative power conferred in s 51. Nevertheless, as will be seen, this does not detract from the appellants' case. The first proposition concerning s 122 (which itself requires some qualification) is that, as Barwick CJ pointed out in Spratt v. Hermes ^[F241] , the power conferred by s 122 "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". Nevertheless, s 122 empowers legislation which may operate inside the boundaries of the States ^[F242] . The result is that out of s 122 there may arise questions as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States. Barwick CJ recognised this in Spratt v. Hermes ^[F243] . Further, as with laws made by the Parliament in the exercise of concurrent powers, by virtue of s 109 of the Constitution a law validly made under s 122 prevails over an inconsistent State law ^[F244] . In Spratt v. Hermes ^[F245] , Barwick CJ said of the expression "law of the Commonwealth" (upon which s 109 turns), that it "embraces every law made by the Parliament whatever the constitutional power under or by reference to which that law is made or supported".

The second distinctive aspect of s 122 concerns the use of the phrase "for the government of any territory" rather than "for the peace, order, and good government of any territory". In a sense, the longer expression is "condensed" to the shorter ^[F246] . Yet the phrase "for the government of any territory" emphasises that the Parliament may prescribe the constitutional arrangements for the government of a territory ^[F247] . In Berwick Ltd v. Gray , Mason J, with whom Barwick CJ, McTiernan and Murphy JJ agreed, said ^[F248] :

"[The power] is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus".

This latter consideration itself requires qualification as a result of the denial in Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F249] of competence of a territorial legislature, set up by a law made under s 122 of the Constitution, to impose duties of excise within the meaning of s 90. Nevertheless, the establishment of territorial political institutions is of some significance for any operation par (xxxi) may have in relation to s 122. The paragraph is directed to the acquisition of property from any State, not from any body politic constituted for a territory by a law made under s 122. However, the Parliament, by whose law the body politic in question has been created consistently with s 122, may also subject that body politic to the exercise of the power of the Parliament of the Commonwealth to acquire property from it. The provisions, if any, for compensation will be a matter for the Parliament but no requirement of just terms will flow from the Constitution. The Lands Acquisition Act 1989 (Cth) does authorise the acquisition of the interest of a Territory in land which is the property of a Territory, but provides for compensation.

I conclude (i) that, upon its proper construction, in empowering the Parliament to make laws "for" the government of any territory, s 122 identifies a purpose, in terms of the end to be achieved, and (ii) that, within the meaning of par (xxxi), s 122 states a purpose in respect of which the Parliament has power to make laws. The question then becomes whether there is either expressed or made manifest by the words or content of the grant of power in s 122 sufficient reason to deny the operation of the constitutional guarantee in par (xxxi). There is none.

First, a construction of the Constitution which treats s 122 as disjoined from par (xxxi) produces "absurdities and incongruities" ^[F250] . This is so particularly with respect to a territory such as the Northern Territory, the area of which, at federation, was within a State. As is made clear in covering cl 6 of the Constitution, upon federation what was then identified as "the northern territory of South Australia" was included within an "Original State" and thus was part of the Commonwealth at its establishment ^[F251] . The Constitution, notably s 111 ^[F252] , should not readily be construed as producing the result that the benefit of the constitutional guarantee with respect to the acquisition of property in what became the Northern Territory was lost. In Spratt v. Hermes ^[F253] , Menzies J said:

"I do not understand how the surrender and acceptance authorized by s 111 of the Constitution can take the area affected outside 'the Federal System'. To my mind, the notion that an area which is geographically within Australia and is part of the Commonwealth of Australia is outside 'the Federal System' should be given no further countenance. Surely, if the phrase 'the Federal System' is to be used to define some legal concept, it can but mean the system of government established by the Constitution itself".

Secondly, many of the powers conferred upon the Parliament by s 51 (such as par (xxix)) will be susceptible of exercise in respect of matters and things in or connected with the territories, and on its face par (xxxi) will apply to the exercise of these powers. The Conservation Act itself provides an example. One of the objects in making provision for the establishment of parks under s 7 thereof is the facilitation of the carrying out by Australia of obligations, or the exercise by Australia of rights, under agreements between Australia and other countries (s 6(1)(e)). In the present case the Commonwealth admitted on the pleadings that an object of the making of the Proclamations was to facilitate the performance by Australia of its obligations, or the exercise of rights, under the Convention for the Protection of the World Cultural and Natural Heritage ^[F254] . It is to give to the constitutional guarantee a capricious operation to exclude from it so much of the law which is in question in the particular case as is or might have been concurrently supported by s 122.

Thirdly, as already indicated, the criterion of validity of a law made in reliance upon s 122 is that it be for the government of a territory. A law may meet that criterion without operating solely upon property situated in that territory. As I have stated above, s 122 authorises the Parliament to make laws the operation of which extends to the States. Further, it would appear that the power of the Parliament to establish territorial legislatures extends to empowering such a legislature itself to make laws with extraterritorial operation, at least within Australia ^[F255] . It would be a curious result if just terms were constitutionally unnecessary for the compulsory acquisition of land in a city in one of the States for the purposes of a tourist bureau for a territory. The owners of property in a State would be deprived of the constitutional guarantee where the property was acquired for the purpose of the government of a territory; the Commonwealth would be in a position to impose upon those holding property in a State a burden from which the Constitution was designed to protect them ^[F256] .

Fourthly, the constitutional guarantee speaks of "property", which "is the most comprehensive term that can be used" ^[F257] . It includes choses in action and other incorporeal interests ^[F258] . The situs of such interests may be neither fixed nor, at any given time, readily susceptible of identification. For example, at common law, and in the absence of statutory provision, bearer bonds and bearer stock, passing by delivery ^[F259] , appear to be located where the instrument of security then is to be found ^[F260] . Where there are two or more registers where a transfer of shares might be registered, the shares are situated where they could most effectively be dealt with having regard to business practice ^[F261] , or where the shareholder in question would be likely to choose a market and place of transfer when desiring to deal with the shares ^[F262] .

In addition, incorporeal property, such as a patent, design or registered trade mark, which exists by virtue of a grant from the Commonwealth cannot be regarded as locally situate in any particular State or territory of the Commonwealth. Rather, such property is locally situate in Australia. Fullagar J so held in In re Usines de Melle's Patent ^[F263] . Accordingly, the constitutional guarantee cannot be coherently construed in a universe of legal discourse which contains a dichotomy between situation of property in a State and situation of property in a territory.

These considerations support a construction of the Constitution that the property referred to in par (xxxi) is that situated in Australia, whether by reason of the physical location of any land or chattel within the area of a State or territory, or the situation of any incorporeal interest (as a matter of legal analysis and classification and in the sense identified by Fullagar J) in Australia or in a State or territory thereof. The property which is the subject of the constitutional guarantee should be identified in this way.

The above considerations indicate that the legislative power conferred by s 122 is not immunised from the operation of the constitutional guarantee. Nevertheless, the Commonwealth referred to various matters which it submitted supported a construction which excluded from the operation of par (xxxi) any law of the Parliament which was supported, solely or concurrently with another head of power, as a law made in exercise of the power conferred by s 122 of the Constitution.

Section 122 is placed in Ch VI of the Constitution, which is headed "NEW STATES". Section 51 is found in Ch I, which is headed "THE PARLIAMENT". However, in Spratt v. Hermes ^[F264] , Barwick CJ said, with reference to s 122, that it was "an error to compartmentalize the Constitution, merely because for drafting convenience it has been divided into chapters". During the Third Session of the Convention Debates at Melbourne in 1898, there was an exchange between Deakin and Barton as to whether what became s 122 should be placed in what became s 52 (cl 53 of the Draft Bill), as an exclusive power of the Parliament. Their exchange concluded ^[F265] :

"Mr BARTON - It was thought advisable to leave that provision regarding territories where it is -- under the head of "New States" -- because it refers particularly to that kind of territory which afterwards develops into a new state.

Mr DEAKIN - Yes, but it is an exclusive power, and might as well be placed in the clause relating to exclusive powers.

Mr BARTON - Is it not logically in a better place where it is?

Mr DEAKIN - It is logical where it is, and it would also be logical if included in clause 53. However that is a question for the Drafting Committee."

Indeed, Latham CJ later expressed the tentative view ^[F266] :

"Sec 122, relating to the government of territories, does not use the word 'exclusive,' but the effect of sec 122 is that the Parliament has exclusive power, by virtue of the Constitution, to make laws for the territories to which the section applies. By the operation of sec 52(iii) in relation to sec 122, the Commonwealth Parliament would appear to have power to make laws for the Commonwealth with respect to the government of New Guinea."

It is unnecessary on this occasion to consider whether that view is correct ^[F267] . What is important is the proposition expressed by Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F268] that it would "be erroneous to construe s 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope".

The Commonwealth submitted (i) that s 122 conferred a power that was "plenary" in nature and (ii) that the construction of the Constitution contended for by the appellants would deny the plenary nature of the power. In Attorney-General of the Commonwealth of Australia v. The Queen ^[F269] , Viscount Simonds referred to the "plenary power under s 122" and then described that power as "a disparate and non-federal matter". Of that passage, Dixon CJ later observed ^[F270] :

"But the legislative power with reference to the [Northern] Territory, disparate and non-federal as in the subject matter, nevertheless is vested in the Commonwealth Parliament as the National Parliament of Australia; and the laws it validly makes under the power have the force of law throughout Australia. They are laws made by the Parliament of the Commonwealth and s 5 of the covering clauses makes them binding on the courts, judges and people of every State notwithstanding anything in the laws of any State."

The phrase "plenary power" appears first to have entered the constitutional discourse in what was then the British Empire in a trilogy of Privy Council decisions. These concerned respectively the powers of the subordinate legislatures of India ^[F271] , Ontario ^[F272] and New South Wales ^[F273] . The phrase "plenary power" was used in the course of rejecting submissions that by reason of those legislatures themselves being delegates of the Imperial Parliament they were incompetent to pass what would now be identified as delegated legislation. These decisions were not concerned with the respective legislative powers inter se of the components of a federation. Nevertheless, they were relied upon as assisting in the construction of the Australian Constitution in the joint judgment in Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd ^[F274] . They were used as a step in the reasoning which denied to the States, in the absence of an explicit reservation in the Constitution, immunity from the operation of Commonwealth legislation enacted pursuant to an express grant in s 51 of the Constitution. The phrase "plenary power" thus entered Australian federal constitutional law not with reference to s 122, but to emphasise the nature of the grants in s 51 ^[F275] . Those grants are nonetheless "plenary" despite the operation of par (xxxi). There is no apparent reason why s 122 should be any the less "plenary" in nature if the constitutional guarantee also is applicable to laws made under that head of power.

The most that can be said of the continued utility of the expression "plenary power" in relation to the Constitution appears in the following passage from the judgment of Jacobs J in Berwick Ltd v. Gray ^[F276] . His Honour said:

"The power of the Commonwealth Parliament to legislate upon the subject matters stated in the Constitution is plenary in the fullest sense of that word. Once a law is found to be a law on the particular subject matter and once the subject matter is found to be one of Commonwealth power no other nexus or relationship between the law and the subject matter of power needs to be established. The Parliament is sovereign."

A law said to be supported by exercise of the "plenary" power in s 122 must still display the necessary nexus or relationship with the subject-matter of power, namely "the government of any territory". A law providing for the recruitment in the Territory of personnel for the defence forces would not be a law for the government of the Territory. It would be a law for the defence of the Commonwealth and be supported by s 51(vi).

That s 122 is not without limits upon the laws it authorises is further illustrated by Davis v. The Commonwealth ^[F277] . The Australian Bicentennial Authority was a company incorporated in the Australian Capital Territory with the primary object of planning and implementing celebrations to commemorate the 1988 Bicentenary. Section 22 of the Australian Bicentennial Authority Act 1980 (Cth) made it an offence for a person without the consent of the Authority to use certain expressions and s 23 provided for the forfeiture to the Commonwealth of articles or goods by means of which or in relation to which there had been committed an offence against s 22. Mason CJ, Deane and Gaudron JJ said of s 122 ^[F278] :

"That head of legislative power would extend to the incorporation of a corporation in the Australian Capital Territory and to the protection of its corporate name and symbols. But the Territories power on its own cannot sustain the regime which ss 22 and 23 attempt to create."

In this case the Commonwealth also submitted that significant consequences, favourable to the construction it supported, flowed from the presence in s 51 of the phrase "subject to this Constitution" and its absence from s 122. This phrase appears in various provisions of Ch I ^[F279] and Ch V ^[F280] . The processes and procedures for the making of laws by the Parliament in pursuance of the powers conferred by ss 51 and 52 are subjected to the requirements as to manner and form and specific content imposed by provisions such as s 53 (the respective powers of the two Houses of Parliament), s 54 (appropriation bills), s 55 (tax bills) and s 57 (disagreement between the Houses).

The phrase "subject to this Constitution" also serves in s 51 to emphasise that the subject-matter with respect to which the Parliament otherwise may make laws under s 51 is restrained by provisions such as ss 92, 99, 100 and 116 of the Constitution. But the same result would follow from the operation of the prohibitions in which those sections are expressed without the confirmatory warning in s 51 itself. No particular conclusion follows in this respect from the presence (in s 51) or the absence (from s 122) of the phrase "subject to this Constitution". It can hardly be suggested that s 122 operates other than subject to the Constitution, and, in particular, that it is not to be read with the Constitution as a whole.

It is true that, as authority presently stands, limitations imposed by s 55 do not apply to laws supported by s 122 ^[F281] . Nevertheless, territory representatives are subject to the ineligibility and disqualification provisions of ss 43, 44, 45 and

46 of the Constitution ^[F282] and in Spratt v. Hermes ^[F283] Barwick CJ said there seemed to be no reason why a double dissolution should not result from a disagreement between the two chambers upon a proposed law founded upon s 122.

Decisions which appear to disjoin s 122 from the operation of the Constitution as a whole were delivered before the Papua New Guinea Independence Act 1975 (Cth). The existence of so large and comparatively populous external territory appears to have been a consideration of some significance. For example, in R v. Bernasconi ^[F284] , Isaacs J referred to the acquisition of German New Guinea as follows:

"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 German or Polynesian, would come within s 122, and not within s 80.[ ^[F285] ] 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."

In Administration of Papua and New Guinea v. Daera Guba ^[F286] Barwick CJ said:

"I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connexion (as to which see generally Milirrpum v. Nabalco Pty Ltd ^[F287] , and more recently Calder v. Attorney-General (British Columbia) ^[F288] in the Supreme Court of Canada), the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter.

It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognised a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land."

Neither the identification of s 122 as conferring "plenary power" nor the absence from the section of a phrase such as "subject to this Constitution" supplies the necessary contrary intention to displace what otherwise, upon a textual analysis of the Constitution as a whole, is the operation of the constitutional guarantee upon laws made for the government of the Northern Territory.

Teori Tau v. The Commonwealth

It remains to consider the obstacle to that conclusion presented by the decision in Teori Tau v. The Commonwealth ^[F289] . Before turning to consider that question and the application made by the appellants, if necessary for their success, to re-open the case, reference should be made to relevant changed circumstances since that judgment was given in 1969.

First, there has been relevant amendment of the Constitution itself. Since 1977, s 128 has provided for the submission of proposed laws for the alteration of the Constitution to electors of Territories in respect of which there is in force a law allowing their representation in the House of Representatives ^[F290] . Secondly, the validity of the Senate (Representation of Territories) Act 1973 (Cth) was upheld in Western Australia v. The Commonwealth ^[F291] and, with respect to the House of Representatives, the validity of s 6 of the Northern Territory Representation Act 1922 (Cth) and s 18 of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth) were upheld in Queensland v. The Commonwealth ^[F292] . Thirdly, there have been other significant decisions of this Court. I have referred to Capital Duplicators and Davis v. The Commonwealth . I also noted the acceptance in 1984 in the joint judgment of six members of the Court in Clunies- Ross of the proposition that par (xxxi) is to be given the liberal construction appropriate to a constitutional guarantee, and to the repetition of that proposition in more recent decisions of the Court referred to earlier in these reasons. So much may now seem but a statement of the obvious. This was not always the case. The construction of s 116 of the Constitution provides an example from the fairly recent past ^[F293] . In Attorney-General (Vict); Ex rel Black v. The Commonwealth , Wilson J said ^[F294] :

"The plaintiffs' plea for a broad construction overlooks the fact that we are dealing with a clause which does not grant power, but denies it."

Mason J said ^[F295] :

"Although in some circumstances it is permissible to construe a grant of legislative power so as to apply it to things and events coming into existence and unforeseen at the time of the making of the Constitution, so that the operation of the relevant grant of power in the Constitution enlarges or expands, a constitutional prohibition must be applied in accordance with the meaning which it had in 1900. As a prohibition is a restriction on the exercise of power there is no reason for enlarging its scope of operation beyond the mischief to which it was directed ascertained in accordance with the meaning of the prohibition at the time when the Constitution was enacted." ^[F296] .

These developments have "overtaken", in the sense of that term used by Aickin J ^[F297] , the reasoning in Teori Tau and the assumptions upon which that reasoning appears to rest.

Any determination of the present standing of the decision in Teori Tau involves the question whether it formed part of, or developed from, a consistent body of authority ^[F298] . Consideration of what had been decided 11 years before in Lamshed v. Lake indicates the contrary. In that case, s 10 of the 1910 Act was in issue. It provided that trade, commerce and intercourse between the Northern Territory and the States, whether by means of internal carriage or ocean navigation, was to be absolutely free. The dispute was whether this provision applied to prevent South Australian legislation, which prohibited carriers from using certain roads without a licence, from applying to a carrier in the course of a journey from Adelaide to Alice Springs. The Court (Dixon CJ, Webb, Kitto and Taylor JJ; McTiernan and Williams JJ dissenting) held that s 10 did so apply. The Court rejected the submission by South Australia that, in exercising the legislative power conferred by s 122 of the Constitution, the Parliament was in the position of a local legislature in and for the relevant territory and that its power was limited to the area of that territory. Section 10 had a valid operation in respect of acts, matters and things in South Australia and was a "law of the Commonwealth" within the meaning of s 109 of the Constitution.

Subsequently, Spratt v. Hermes determined that a court of a territory having the appropriate local jurisdiction may enforce in relation to acts occurring within that territory a law made by the Parliament upon a subject-matter falling within s 51 of the Constitution and intended to operate throughout the Commonwealth. Further, as I have indicated, Barwick CJ in Spratt v. Hermes ^[F299] accepted as a corollary of the holding in Lamshed v. Lake that laws made for a territory may operate "into a State", the possibility of inter se questions respecting the legislative powers of the Commonwealth and the States arising out of the exercise of power under s 122.

Accordingly, at the time Teori Tau fell for decision, prior and recent determinations of this Court meant that (a) whatever might be meant by the description of s 122 as conferring legislative power which is "plenary" in nature, s 122 is not the sole source of the power of the Parliament to legislate with respect to a territory and, on the other hand, (b) whatever might be meant by describing s 122 as concerned with "non-federal" matters, a law made in exercise of that power may operate in the States as a law of the Commonwealth which attracted the operation of s 109 of the Constitution.

I turn now to consider the reasoning in Teori Tau . The plaintiff sued on behalf of himself and members of a kinship group of inhabitants of the Territory of Papua and New Guinea. They claimed to be entitled to land in respect of which legislation in force in that Territory purported to vest certain minerals in the Crown. The plaintiff sought to establish that the relevant legislation was invalid as providing for the compulsory acquisition of property without just terms for that acquisition. The matter came before the Full Court on a special case referred by Barwick CJ. After hearing submissions for the plaintiff, and without calling upon the defendants, the Court adjourned for a short time and the ex tempore reasons for judgment of the Court were then delivered by Barwick CJ. There was in those reasons neither discussion nor analysis nor, indeed, citation, of previous authority.

The reasoning contains two related propositions with which, with respect, no one would disagree. The first identifies the issue as "a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more" ^[F300] . The second is that "the Constitution must be read as a whole and as a consequence, s 122 be subject to other appropriate provisions of it" ^[F301] . However, this should have served to highlight the issue whether there was any good reason not to accept the ordinary reading of par (xxxi) as embracing a purpose being law-making for the government of a territory.

Barwick CJ identified ^[F302] the substance of the submissions for the plaintiff as being (a) "because the power given by s 51(xxxi) is so ample as the decisions of this Court show, s 122 should not be construed as conferring a power to make laws for the acquisition of property" and (b) that "s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth".

Those submissions did not fully reflect the understanding of par (xxxi) which has been developed in subsequent decisions. I referred to those developments earlier in these reasons. In particular, the constitutional guarantee applies only to acquisitions of a kind that permit of just terms and, further, where it does operate, it does so by reducing the content of the other grants of legislative power.

Barwick CJ stated as follows the issue for decision ^[F303] :

"The question we have to decide is whether the power to make laws for the government of a territory of the Commonwealth, whether it be the Australian Capital Territory, the Northern Territory or any other territory such as the territories beyond the mainland of Australia, as for example the Territory of Papua and New Guinea or Norfolk Island, includes a power akin to that possessed by the States of the Commonwealth to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just." (emphasis added)

The ordinary, if not the primary, meaning of "akin" is "similar". Similarity is no doubt a matter of opinion and degree. However, the paramountcy given by s 109 of the Constitution to laws of the Commonwealth made in exercise of the power conferred by s 122 renders that power different in nature and quality from the legislative power of any State. Given the permissible reach of laws made under s 122, the question, from the viewpoint of the States and those owning property in the States, might have been stated more forcefully as one whether it was open to the Commonwealth to acquire property in a State, without compensation, in reliance upon a law based upon s 122 where the Commonwealth had exercised or might have exercised in the State other legislative powers which undoubtedly would attract the operation of par (xxxi). In the terms of the Constitution itself, the true question was whether the phrase in par (xxxi) "any purpose in respect of which the Parliament has power to make laws" extends to the power of the Parliament under s 122 to "make laws for the government of any territory".

The immediate steps by which Barwick CJ reached the conclusion adverse to the plaintiff in Teori Tau appear to have been the following ^[F304] :

(i): "Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth" (emphasis added). More accurately, s 122 is a source of such power, as the holding in Spratt v. Hermes had indicated.
(ii): The grant of legislative power in s 122 "is general and unqualified ... plenary in quality and unlimited and unqualified in point of subject matter". I have referred to the unhelpful circularity inherent in the word "plenary" in such a setting. The subsequent decision in Capital Duplicators denies any proposition that the grant in s 122 is "unlimited and unqualified in point of subject matter". Moreover, in the absence of par (xxxi), the power to acquire property compulsorily would probably have been regarded as forming an incident of "almost every other power which is expressly granted by s 51" ^[F305] , just as much as it does of s 122. Whether in this respect the grant in s 122 is unlimited and unqualified was the question in issue.
(iii): Whilst s 51 "is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States", on the other hand s 122 "is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power". Nevertheless and as had been indicated by Barwick CJ in Spratt v. Hermes ^[F306] , questions may arise with respect to the valid exercise of power under s 122 just as much as they may arise under s 51. Moreover, laws made under s 122 are laws of the Commonwealth for the purposes of s 109. That had been established by Lamshed v. Lake .

The result is that the reasoning in Teori Tau at each stage is now to be seen as flawed, whether by reason of then established doctrine or by reason of later constitutional developments and decisions of this Court. A consideration sometimes given for adhering to past authority, whatever its correctness, is the inconvenience that would be caused by disturbing the reliance of governments, citizens and corporations upon the Court continuing to adhere to that authority. However, Teori Tau has not been the subject of more recent challenge, at least, it would appear, partly because the legislation of the Parliament and of the territorial legislatures has provided for just terms. This litigation, if the appellants are correct in their construction of the laws in question as effecting an acquisition in the constitutional sense, has arisen out of a departure from legislative practice. I referred earlier in these reasons to legislation indicative of that practice to place those with property in a territory in no different position as regards the laws of the Commonwealth to property holders in the States.

The Minerals (Acquisition) Ordinance 1953 (NT), by force of s 3, vested in the Crown in right of the Commonwealth all minerals not then already the property "of the Crown or of the Commonwealth". Section 4 obliged the Commonwealth to compensate those whose interests were acquired by s 3. There is a dispute between the parties as to whether the overruling of Teori Tau would have any significant consequences today, by reason of the application of the constitutional guarantee to the declaration by s 5 of the Petroleum (Prospecting and Mining) Ordinance 1954 (NT) of all helium and natural gas on or below the surface of any land in the Northern Territory to be the property of the Commonwealth.

The Commonwealth and the Director contended that the application of s 51(xxxi) to reduce the content of the legislative power conferred by s 122 "would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the [Territory] since 1911 to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law". Such apprehensions are not well founded. The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation ^[F307] . Secondly, legislation such as that considered in Mabo v. Queensland ^[F308] and Western Australia v. The Commonwealth ( Native Title Act Case ) ^[F309] , which is otherwise within power but is directed to the extinguishment of what otherwise would continue as surviving native title (or which creates a "circuitous device" to acquire indirectly the substance of that title ^[F310] ), may attract the operation of s 51(xxxi) ^[F311] . However, no legislation of that character, with an operation in the Territory, was pointed to in the submissions in this case.

Leave to reopen Teori Tau is sought by the appellants who are supported in this by the Northern Territory. Leave should be given. Teori Tau did not rest upon any principle carefully worked out in a succession of cases ^[F312] . Rather, it is contrary, at least as regards this tenor, to the reasoning which underlay Lamshed v. Lake and Spratt v. Hermes . Where the question at issue relates to an important provision of the Constitution which deals with individual rights, such as s 51(xxxi) or s 117, the "Court has a responsibility to set the matter right" ^[F313] . Ultimately, it is the Constitution itself which must provide the answer ^[F314] .

Reference has been made to Teori Tau in discussion in subsequent decisions of this Court of the scope of s 51(xxxi) ^[F315] , but in contexts where neither its correctness nor its direct application was in issue. As I have indicated, Teori Tau does not appear to have been significantly acted upon by the Parliament or territorial legislatures. It did not represent a fully considered decision which was reached after full argument by both sides. It has been overtaken by subsequent developments.

Once leave be given, it follows that Teori Tau should no longer be treated as authority denying the operation of the constitutional guarantee in par (xxxi) in respect of laws passed in reliance upon the power conferred by s 122.

Laws not supported solely by s 122

There is an additional path to the conclusion that the constitutional guarantee applies in this case. I have referred to the support in the external affairs power for the legislation which conferred the power to make the Proclamations. The matter is further developed in the reasons of Gaudron J. I concluded that it would be an odd result if there was excluded from the operation of the constitutional guarantee so much of a law as was supported both by s 122 and by one or more heads of power outside s 122.

Further, I agree with Gaudron J, for the reasons she gives, that the true position is the contrary. That is to say, I agree that where s 51(xxxi) is engaged by a law with respect to, for example, external affairs, it is not disengaged by the circumstance that the law in question also is a law for the government of a Territory.

It remains to consider whether the Commonwealth effected any acquisition of property of Newcrest without the just terms required by the constitutional guarantee. This first requires consideration of the operation of the 1939 Ordinance, the Self-Government Act and the 1980 Act upon the mining tenements which the appellants contend were later acquired by the Commonwealth.

The mining tenements

It is necessary to begin with s 111 of the Constitution pursuant to which what had been the State of South Australia and is now the Territory was surrendered to and accepted by the Commonwealth. Section 111 states:

"The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth."

The result of the operation of s 111 with respect to what became the Territory was that its geographical area was taken out of that of South Australia and, subject to the Constitution, the Commonwealth acquired full sovereignty over the Territory ^[F316] . Radical title over the land in the Territory was an attribute of that sovereignty ^[F317] .

Section 122 empowers the Parliament to "make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth". Section 6(1) of the Northern Territory Acceptance Act 1910 (Cth) ("the Acceptance Act") declared the Territory to be accepted by the Commonwealth as a territory under the authority of the Commonwealth. All laws in force in the Territory at the time were continued in force but were subjected to alteration or repeal by or under any law of the Commonwealth (s 7(1)). Section 10 of the Acceptance Act stated:

"All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall ... continue to be held from the Commonwealth on the same terms and conditions as they were held from the State."

The Acceptance Act was accompanied by legislation to provide for the government of the Territory, namely the 1910 Act. Section 21 of the 1910 Act provided for the making of Ordinances having the force of law in the Territory ^[F318] . This provided the foundation for the 1939 Ordinance.

The 1939 Ordinance

Part v. of the 1939 Ordinance (ss 39-102) was headed "Mining Leases". Division 1 (ss 39-44) provided for the granting of gold-mining leases over Crown land and Div 2 (ss 45-54) for the granting of mineral leases over Crown land. The term "crown land" was defined in s 7 as meaning "all land of the Crown or of the Commonwealth" but so as to exclude land "lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown".

In Gowan v. Christie ^[F319] Lord Cairns described a "mineral lease" as understood by the common law. His Lordship said it was:

"liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil".

With reference to this passage, Windeyer J, in Wade v. New South Wales Rutile Mining Co Pty Ltd ^[F320] , said of the grant by the Crown of a mining lease of an area of private land that it was "really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties". Kitto J had earlier stated that the common law recognises that a lease which entitles the lessee to work a mine on the demised premises gives the right not only to use the property, but also as part of the same grant the right to appropriate the minerals when severed from the land ^[F321] . Windeyer J also referred in Wade to the practice in Australia, when making Crown grants, to reserve minerals to the Crown as being a keeping back of a physical part of that which otherwise was granted ^[F322] .

What became, under the 1980 Act, MLN 19, MLNs 23-28 and MLNs 78-89 had been, in the special sense to which it will be necessary further to refer, mineral leases under the 1939 Ordinance. What became MLNs 751-756 had been gold-mining leases under the 1939 Ordinance.

In referring to the state of the evidence, French J had referred to the limited documentary records concerning the grant of the titles later acquired by Newcrest. His Honour said that, although "no formal leases were executed, the parties seem to have proceeded upon the common assumption that the terms and conditions of the mining leases were as defined in the forms prescribed by reg 102A of the Mining Regulations [(NT)] made under [the 1939 Ordinance]" ^[F323] . As the argument developed in this Court, it became apparent that, in tracing the root of those titles, s 71 of the 1939 Ordinance was of particular importance. In its original form, this stated:

"On the approval or refusal by the Administrator of an application for a lease, notice thereof shall be published in the Gazette , and every such notice shall be prima facie evidence of an agreement by the Administrator to grant the lease, subject to such conditions as may be therein stated, or of the refusal, as the case may be."

The term "lease" was defined in s 7 as follows:

"'lease' means any lease granted or approved under the provisions of this Ordinance or of any Act or Ordinance repealed by this Ordinance".

Section 44 dealt with the consequences of the approval of an application for a gold-mining lease. It stated:

"After the approval of an application for a gold-mining lease, the lessee shall have the exclusive right of mining for gold and other minerals in and on the land demised and every part thereof."

Section 73 provided that on "the lease being approved by the Administrator the lessee and his assigns shall be deemed to have entered into the covenants, and to be subject to the conditions" specified in the section. These included a covenant to pay rent and royalty, and to work the land demised in accordance with the regulations made under s 215 and a condition for forfeiture of the lease on breach of any of the covenants ^[F324] . Section 76 provided for the keeping of books to be called "The Register of Gold-mining Leases" and "The Register of Mineral Leases". There were to be registered therein applications for leases, transfers "and other dealings or transactions". The books and all registered instruments were to be open to public inspection (s 76(2)).

Counsel for the appellants submitted that the provisions of the 1939 Ordinance for the granting by the Administrator of gold-mining leases (s 39) and mineral leases (s 45) and the prescribed forms of grant in the Mining Regulations made under the 1939 Ordinance did not produce the result that Newcrest lacked the necessary root of title in the absence of evidence of any instruments of grant. The state of affairs reflected the practice, consistent with the terms of the 1939 Ordinance set out above, whereby applications were registered and approvals were, in effect, assimilated to grants ^[F325] . This position taken by the appellants was not seriously disputed by the respondents. Indeed, and as will shortly appear, on one branch of their case they relied upon what they asserted were relevant limitations in the terms of the prescribed forms of grant. The appeal should be dealt with on the footing accepted by the parties.

The prescribed forms of grant

The Mining Regulations prescribed particular forms of grant for gold-mining leases granted under s 39 of the 1939 Ordinance and for mineral leases granted under s 45 thereof. For present purposes, both may be treated as having been in the same form. Each was expressed as a grant by the Crown and each contained what was expressed as a proviso in the following terms ^[F326] :

"PROVIDED FURTHER that WE may at any time, without compensation to the lessee, resume possession of any portion of the surface of the land hereby demised for the construction thereon of roads, tramways or railways, including all necessary approaches thereto, or for any other public purpose whatsoever".

In this Court, the respondents submitted that this amounted to an inherent limitation upon that which was granted by the gold and mineral leases, that the Proclamations and supporting legislation did no more than bring about that which had been incipient in the grants themselves, and that, as a consequence, there was no relevant subject-matter to which the constitutional guarantee of acquisition only on just terms might apply.

However, the Proclamations were not expressed as having been made in exercise of any rights conferred upon the grantor of the mining tenements created under the 1939 Ordinance. The terms of the Proclamations base them in the exercise of power conferred by the Conservation Act. It is true that the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed. In Lockwood v. The Commonwealth , Fullagar J referred to the ^[F327] :

"settled principle that an act purporting to be done under one statutory power may be supported under another statutory power".

However, what was done by the Proclamations differed markedly from that which was allowed by the proviso in the prescribed forms. The Crown (assuming the Commonwealth may be so regarded for this purpose) did not, in the terms of that proviso, "resume possession ... of the surface of the land" in question for any public purpose. Rather, the Proclamations brought about a result whereby there were acquisitions of the land and the minerals to a depth of 1,000 metres and, by force of s 7(7) of the Conservation Act, there was vested in the Director the interest of the Commonwealth in the land save that in respect of minerals. The settled principle referred to by Fullagar J can have no application to such a case.

The submissions to the contrary made by the respondents should be rejected. This makes it unnecessary to determine whether the objection by the appellants that, in the light of the conduct of the litigation and the failure of the respondents to urge this submission before the primary judge, it is not now open to them to do so.

Renewals under the 1939 Ordinance - MLN 24

The 1939 Ordinance provided for the transfer of leases, with the approval of the Administrator (s 75). Every mining tenement (broadly defined in s 7 so as to include land lawfully held, occupied or used under a lease or an application for a lease) and every share and interest in a mining tenement was to be and to be taken in law to be a chattel interest which, subject to the 1939 Ordinance and the Regulations thereunder, might be transferred and encumbered by the holder thereof (s 145). That was subject to the proviso that no person could acquire any interest under a transfer of a mining tenement held under a miner's right, unless that person held a miner's right. The term of a gold- mining lease (s 42) and a mineral lease (s 49) was not to exceed 21 years from 1 January next preceding the approval thereof. In each case, at expiration of the lease the lessee was given "a right to renew the lease" for a further period of 21 years.

A particular issue arises here concerning what was later, under the 1980 Act, identified as MLN 24. This was the interest treated as granted under the 1939 Ordinance as a mineral lease for the period commencing 11 October 1957 and to expire on 31 December 1977. After the expiry of the original term and after the commencement of the Self-Government Act, the Territory Minister for Mines and Energy gave what was called an approval of the renewal. This occurred on 28 November 1978. Application by BHP had been made by letter dated 15 November 1978 for renewal for a further period of 21 years from 31 December 1978. By letter dated 4 December 1978, the Secretary to the Department notified BHP that because the correct expiry date had been 31 December 1977, rather than 31 December 1978, the renewal was for a period to expire 31 December 1998.

French J concluded ^[F328] that the right to renew MLN 24 had been validly exercised.

Section 49 of the 1939 Ordinance stated:

"The term of a mineral lease shall not exceed twenty-one years from the first day of January next preceding the approval thereof, but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of twenty- one years, subject to the Ordinances and regulations relating to mineral leases in force at the time of such renewal."

Unlike s 75 (dealing with transfers), s 49 did not specify any requirement of approval of renewals. This may also be contrasted with the provisions of Pt IVA (ss 38A-38X) dealing with exploration licences. These had been inserted by s 7 of the Mining Ordinance 1970 (NT). Section 38B(8) provided:

"An exploration licence may be granted or renewed, as the case may be, for such term, not exceeding one year, as the Administrator thinks fit, provided that the total term of the licence, including renewals, does not exceed five years." ^[F329] .

The first question of construction of s 49 turns upon the phrase "every lessee shall ... have a right to renew the lease". In R v. Mahony; Ex parte Johnson ^[F330] , Rich and Dixon JJ explained that the term "to renew" may be used to mean "to obtain an extension of a period" as well as "to extend a period". Where (as is the case with s 49) the renewal is not conditioned upon favourable exercise of a discretion and no provision directs that the renewal be upon application or in a particular form, this suggests that "renewal" means a prolongation not the grant of another licence. What is involved is the exercise of a right of the lessee to a prolongation of the then current period. On one branch of their argument, Newcrest and BHP submit that whatever the contrary basis upon which the 1939 Ordinance was administered, the right of renewal was exercisable by the lessee and required for its effectiveness no approval or other exercise of governmental authority. This submission should be accepted.

The question then is whether this right of the lessee must have been so exercised that it is effective at the expiration of the earlier grant. The Commonwealth submits that any renewal had to be effective "at the expiration" of the first term on 31 December 1977. That submission should be accepted.

In Associated Minerals Ltd v. NSW Rutile Mining Co ^[F331] , this Court was concerned with the question whether a dredging lease under the Mining Act 1906 (NSW) could be renewed after the term had expired. In answering that question in the negative, Dixon CJ, Kitto, Taylor and Menzies JJ said that the term "renew" pointed towards the continuity of that which was in existence and was on the point of expiring ^[F332] . Their Honours continued, and their reasoning is apposite to the construction of s 49 of the 1939 Ordinance ^[F333] :

"This construction accords with what seems to be the plan of the Act that, upon the expiration of an original or a renewed term, the lease is at an end and others have or can acquire rights that the existence of a lease would preclude. For instance, the owner holds his land free from the lease and any person seeking a lease may take steps to get a lease that the continued existence of another lease would prevent. Neither a gap between the original term and the renewed term, nor a renewed term dating back to the expiration of the original term, coupled in either case with the termination or the destruction ab initio of rights acquired in the meantime, seem to have been within the contemplation of the legislature."

The appellants relied upon the decision of McMullin J in Aetna Life v. Grace Bros Ltd ^[F334] . That case concerned the construction of a clause providing for rent review "at the expiration of" 5 years of a ten year term. It was held that the phrase "at the expiration" meant "within a reasonable time of the expiration of" ^[F335] . However, in that context, the considerations which are present in the reasoning in the above joint judgment and which are significant for this case were not to be found.

In the present case, French J referred to the continued occupancy by BHP after 31 December 1977 and said that it "appears that part of the 1978 rent had been paid in January 1978" ^[F336] . Nevertheless, it was not until 15 November 1978 that BHP wrote to the Mining Registrar of the Department of Mines and Energy on the subject of renewal. The reason for the delay appears to have been the false assumption by BHP that the term of the mineral lease was then still current and would expire on 31 December 1978.

Upon the proper construction of s 49 and in the events that happened, it should have been held in respect of MLN 24 that BHP had not effectively exercised its right of renewal at 31 December 1977. It follows that, at the time of the commencement of the Self- Government Act in 1978, and thereafter, there were then no subsisting rights in respect of MLN 24 upon which there might operate that statute and other laws of the Commonwealth and the Territory.

The 1980 Act

The 1939 Ordinance was repealed by s 3 of the 1980 Act, with effect 1 July 1982. The 1980 Act was amended by the Mining Amendment Act 1983 (NT), with a deemed commencement on 1 July 1982 (s 3). The result was that s 191(5) of the 1980 Act operated upon those mining leases in force under the 1939 Ordinance ^[F337] immediately before 1 July 1982 by deeming them mineral leases granted under Pt VI of the 1980 Act for the remainder of the term for which they were to remain in force under the 1939 Ordinance.

In the interval between the commencement of the Self-Government Act and 1 July 1982, putting aside MLN 24, renewals were made of MLN 23, MLNs 25-28, and of the gold-mining leases (MLNs 751-756). The renewals of the gold-mining leases were for a term commencing 1 January 1981, to expire 31 December 2001. As I have indicated above, these renewals were made in exercise of rights conferred by the 1939 Ordinance and did not require approval of any governmental authority. This is so notwithstanding an apparent practice of the Territory Minister for Mines and Energy to grant such approvals. As will later appear, s 57 of the Self-Government Act had continued those rights of the lessees under the 1939 Ordinance. One consequence of there being no requirement for governmental approval for the renewals is that no questions arise under s 35 of the Self-Government Act in respect of limitations upon the executive authority of the Ministers of the Territory ^[F338] .

Part VI of the 1980 Act (ss 54-81) provided for mineral leases. The term "mineral lease" was defined in s 4(1) as meaning mineral leases granted under Div 2 of Pt VI "or a mining lease continued in force by virtue of section 191(5)". Section 66 subjected every mineral lease to various conditions to be observed by the lessee. Section 68 provided for renewal or further renewal for a term not exceeding 25 years. In marked contrast to the regime under the 1939 Ordinance, s 68 specified that renewal was to be upon application and laid down formalities to be observed in making the application. The renewals with which this litigation is concerned were under the 1939 Ordinance. Under the 1980 Act, the Minister was not to refuse to grant an application for renewal except with the approval of the Administrator (s 68(4)) and once an application was pending a lease was deemed to continue in force until grant or refusal (s 68(5)). A legal or equitable interest in or affecting a mining tenement (so defined in s 4(1) as to include a mineral lease) might be transferred by instrument in writing and with the approval of the Minister (s 173). In respect of land comprising part of a park or reserve within the meaning of the Conservation Act, a law of the Commonwealth, the Minister was obliged by s 176(2)(b) of the 1980 Act not to grant the mineral lease without the written approval of the Minister of the Commonwealth charged with the administration of the Conservation Act ^[F339] . This provision is framed in terms of grants rather than renewals, and nothing turns upon it.

The Self-Government Act

The Self-Government Act commenced whilst the 1939 Ordinance was still in operation. The first of the Proclamations under the Conservation Act upon which Newcrest bases its claim of acquisition of the mineral leases otherwise than on just terms is that of 13 November 1989. The transfer of the mineral leases by BHP to Newcrest had been executed on 20 May 1987 and approved by the Territory Minister in June 1987. What then, immediately before 13 November 1989, was the standing of Newcrest with respect to the mineral leases? Putting, as it must be, MLN 24 to one side, and subject to any consequences flowing from the operation of the Self-Government Act and the Conservation Act, under the law of the Territory, Newcrest was entitled to rights conferred by the 1980 Act which answered the description of "property" in s 51(xxxi) of the Constitution. This is not denied by the Commonwealth and the Director in their submissions. Rather, they contend that as such property was situated in the Territory, par (xxxi) had no application to it. They also contend that, in any event, the steps of which Newcrest and BHP complain did not amount to any acquisition of that property on unjust terms.

The Commonwealth and the Director also rely upon a holding by the Full Federal Court as to the consequences of the Self-Government Act. This was that, upon the commencement of the Self-Government Act, that statute operated to deny to BHP, the predecessor of Newcrest, what otherwise were its then subsisting rights of renewal under s 49 of the 1939 Ordinance. The consequence was that purported renewals thereafter under the 1939 Ordinance, in the interval before the 1980 Act commenced on 1 July 1982 were of no effect. This would affect all the relevant mining leases and gold-mining leases under the 1939 Ordinance except that which became MLN 19. The original grant of MLN 19 was made on 22 July 1947 and there had been a renewal before the commencement of the Self-Government Act for a term to expire on 31 December 1988.

More broadly, the Full Court held that the effect of s 70 of the Self-Government Act was to provide exhaustively for the rights and obligations of the Commonwealth, and of persons holding previously acquired interests, in respect of the relevant lands, and to exclude the further operation of any law of the Territory ^[F340] . This meant that there was no relevant subject-matter upon which the 1980 Act operated and, therefore, no statutory right of renewal of the mining tenements. This was because there were no mining leases under the 1939 Ordinance in force immediately before 1 July 1982, which were to be deemed by s 191(5) to be mineral leases granted under the 1980 Act. Steps taken under the 1980 Act upon the contrary assumption were of no effect in law. The actions of the Commonwealth taken in 1989 and thereafter, of which the appellants complain, did not operate upon any then existing property of Newcrest situated in the Territory and deriving from the laws of the Territory.

It may be noted that the case has not been pleaded on the footing that, if the Self-Government Act had these consequences, it would have effected an acquisition of property of BHP or other predecessors of Newcrest. Rather, Newcrest and BHP counter by submission that s 57 of the Self-Government Act preserved the operation of then subsisting rights under the 1939 Ordinance, including rights to renew conferred by ss 42 and 49 thereof, and that, in any event, s 70(6) of the Self-Government Act preserved and continued these rights. This was the construction of s 70(6) supported by French J ^[F341] and by Beaumont J in his dissenting judgment in the Full Court ^[F342] .

I turn to consider the submissions concerning the Self-Government Act. Section 5 thereof brought into existence the Territory as a body politic under the Crown. Before the commencement of s 5 on 1 July 1978, it made no sense to describe any land or interest therein as "held from the Territory". The consequence of the operation of s 111 of the Constitution and s 10 of the Acceptance Act was that estates and interests in land within the geographical area of the Territory were held from the Commonwealth, or, as the same notion may be expressed, from the Crown in right of the Commonwealth.

Part IV of the Self-Government Act (ss 31- 42) provided for the executive government of the Territory. Part VII (ss 56-75) dealt with the transition from the then existing to the new legal regime for the Territory. The existing laws of the Territory were defined in s 57(3) in terms which included the 1939 Ordinance. Those laws were, subject to the Self-Government Act, to have the same operation as if that statute had not been enacted (s 57(1)). However, that continued operation was subjected to alteration or repeal (i) by or under a law made by the Legislative Assembly of the Territory and assented to by the Administrator or the Governor-General on reservation under s 8, and (ii) by or under an Ordinance made under the 1910 Act as continued in force by s 57(1). This state of affairs is established by s 57(1), (3) and the definition of "enactment" in s 4(1). Section 57(1) states:

"Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."

The question then is whether the phrase in s 57(1) "[s]ubject to this Act" had the consequence of abrogating or qualifying, adversely to the interests of Newcrest or its predecessors in title, the continued operation of the 1939 Ordinance and rights derived therefrom by means in addition to those just indicated. In my view the answer is that there was no such consequence. It is true, as will appear, that the phrase "[s]ubject to this Act" in s 57(1) is to be read so as to give effect to s 69(3). But it will be seen that s 69(3) complements rather than detracts from the operation of s 57(1) upon the interests derived from the 1939 Ordinance by Newcrest and its predecessors.

The Commonwealth relied upon ss 69 and 70 and steps taken thereunder, in particular a Notice published in the Commonwealth of Australia Gazette ("the Gazette") dated 27 June 1978, as having adverse consequences for titles then held under the 1939 Ordinance. However, upon their proper construction, these provisions were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57. Rather, their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the Self-Government Act.

A provision was made in s 69(3) as to the effect of that adjustment between Commonwealth and Territory upon existing interests in land held from the Commonwealth. As I have indicated, the status of the Territory before the commencement on 1 July 1978 of s 5 of the Self-Government Act meant that such interests in a geographical area of the Territory were held from the Commonwealth. Section 69(3) dealt with the matter in a fashion which complemented ss 5 and 57. It stated:

"All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth."

Sub-sections (2) and (4) of s 69 dealt with what the Notes on Clauses which accompanied the Bill for what became the Self-Government Act had described as the basic reversionary interest in all land of the Territory, and the reserved rights of the Crown to all minerals in the Territory ^[F343] . By force of s 69, these reversionary and reserved interests of the Commonwealth were to be vested in the Territory on 1 July 1978. The text of s 69(2) and (4) is as follows:

"(2) All interests of the Commonwealth in land in the Territory, other than interests referred to in subsection (5), are, by force of this section, vested in the Territory on the commencing date." ^[F344]

"(4) All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances within the meaning of the Atomic Energy Act 1953 and the regulations made under that Act and in force immediately before the commencing date) are, by force of this section, vested in the Territory on that date." ^[F345] .

However, in enacting the Self-Government Act, the Parliament also was concerned to reserve to the Commonwealth the right to withdraw from the operation of these provisions in favour of the Territory areas associated with public purposes of the Commonwealth, and to do so without incurring any liability to compensate the Territory. Section 70 operates to attain that end. It commenced on the date of the Royal Assent (s 2(1)), which was 22 June 1978. The other operative provisions, including s 69, commenced 1 July 1978. Hence, the significance in s 70(1) of the phrase "any interest in land vested or to be vested in the Territory by subsection 69(2)". The text of sub-ss (1)-(5) of s 70 was as follows:

"(1) The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by subsection 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section.

(2) The Governor-General may, on the recommendation of the Minister under subsection (1), authorize the acquisition of the interest for a public purpose approved by the Governor- General.

(3) The Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General.

(4) Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section:

(a)
vested in the Commonwealth; and

(b)
freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which subsection (6) applies);

to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth.

(5) An interest that may be acquired under this section may be an interest that did not previously exist as such."

As I have indicated, s 69(2) was concerned not with interests held "from the Commonwealth", as was s 69(3), but with interests "of the Commonwealth". Thus, s 70 had nothing to say as to interests held by third parties beyond what was provided by the combination of ss 5, 57 and 69(3). Submissions to the contrary by the Commonwealth should be rejected.

Once its true scope is perceived, the construction of s 70 presents no great difficulties. Notices under s 70 were not to be published after 1 July 1979, this being one year after the date of general commencement of the statute (s 70(10)). However, as proved to be the case, notices might be published in the interval between the commencement of s 70 on 22 June 1978 and 1 July 1978. The later date was the commencement date for s 69 and the other substantive provisions of the statute. In that interval, the Territory would not yet have come into existence as a body politic. Accordingly, there were no interests in the subject land held from the Territory immediately before the acquisition by the Commonwealth upon the commencement of s 69. There would be no interests held by the then non-existent body politic, the Territory, which were derived from the interest acquired by the Commonwealth under s 70 upon the commencement of s 69.

Accordingly, in those circumstances, there would be no work to be done by s 70(6). This states:

"Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory."

Where, at the time when steps were taken under s 70, the land in question had already been vested in the Territory by the operation of s 69(2), after 1 July 1978, such derivative interests might have come into existence. In those circumstances, s 70(6) would operate to provide that thenceforth they were to be held from the Commonwealth on the same terms and conditions on which they were held from the Territory. That was not this case. The Notice in question was dated 27 June 1978 and published in the Gazette two days later. Accordingly, s 70(6) may be dismissed from further consideration.

Section 70(9) provided that any acquisition by the Commonwealth under s 70 of interests vested or to be vested in the Territory by s 69(2) did not carry liability on the part of the Commonwealth to pay compensation to the Territory in respect of that acquisition.

Section 50(2) of the Self-Government Act is addressed to the Commonwealth. It provides that the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which s 51(xxxi) of the Constitution would apply, is not to be made otherwise than on just terms. However, s 50(2) is expressed as being subject to s 70. As I have indicated, s 70(9) provides that the Commonwealth was not liable to pay to the Territory any compensation in respect of an acquisition made under s 70.

It will be noted that s 70(1) refers solely to interests in land vested or to be vested in the Territory by s 69(2). There is no reference to a vesting of interests of the Commonwealth in respect of minerals by s 69(4). As a result, doubts arose as to whether that which was vested in the Commonwealth under s 70(4) included the reserved right of the Crown to minerals which otherwise were vested in the Territory by operation of s 69(4). To remove those doubts, the Parliament enacted s 11 of the Northern Territory (Self- Government) Amendment Act 1982 (Cth) and deemed it (s 2(2)) to have come into operation on 22 June 1978. Section 11 amended s 70 of the Self- Government Act by adding sub-s (11) in the following terms:

"Where sub-section (4) has effect in relation to an interest in land, that sub-section has the like effect in relation to any interest vested in the Territory by sub-section 69(4) in respect of minerals in or on that land."

On 29 June 1978, various Notices were published by the Minister of State for the Northern Territory in the Gazette stating that, on the recommendation of the Minister, the Governor-General had authorised under s 70(2) of the Self-Government Act "the acquisition of the fee simple interest in the land described in the Schedule" for a particular public purpose approved by the Governor-General. In the Notice with which this case is concerned the stated public purpose was "National Park". The land identified in the Schedule included the areas in respect of which there were subsisting interests under the 1939 Ordinance with which this case is concerned. Other Notices dealt with land required for such purposes as Darwin Airport, Alice Springs Airport, defence facilities at Pine Gap and the Uluru National Park.

To put beyond doubt the validity of all the Notices which were published in the Gazette on 29 June 1978, the Parliament enacted the Northern Territory (Commonwealth Lands) Act 1980 (Cth). It excluded from lands described in the Notice for the Uluru National Park certain lands which already were vested in the Director of National Parks and Wildlife under s 7(7) of the Conservation Act (s 3(2)). It also provided (s 3(1)) that all the Notices in question were "for all purposes" to be taken to have and to always have had effect "to the fullest extent" to which they were capable of having effect in relation to "an interest in land" as specified therein.

Accordingly, the use in the Notice of the term "fee simple" is to be read, consistently with s 70(1), (4) and s 69(2), (4), adjectivally and to identify the amplitude of the reversionary and reserved interests of the Commonwealth. By the steps taken under s 70, these were to be excepted from the vesting in the Territory which otherwise would occur under s 69 on 1 July 1978 ^[F346] .

Earlier in these reasons, I set out the text of s 49 of the 1939 Ordinance, which provided for a right of renewal of mineral leases "subject to the Ordinances and regulations relating to mineral leases in force at the time of such renewal". Section 42 made provision in similar terms for renewal of gold-mining leases. In both cases, the leases were of "Crown land" (ss 39, 45), a term originally defined in s 7 as meaning "all land of the Crown or of the Commonwealth". Upon the commencement of the primary provisions of the Self- Government Act on 1 July 1978, there also came into operation the Transfer of Powers (Self-Government) Ordinance 1978 (NT). Section 4 and Sched 1 thereof amended various ordinances including the 1939 Ordinance. The words "or of the Commonwealth" were omitted from the definition of "crown land". Sections 39 and 45, and the renewal provisions in ss 42 and 49, had thereafter to be read accordingly.

These changes accorded with the revised legal regime established by the Self-Government Act, with the provision (in s 5 thereof) for a "body politic under the Crown by the name of the Northern Territory of Australia". What might be called private interests, including those created under the 1939 Ordinance with which this litigation is concerned, were to survive the transition and the structure of government wrought for the Territory by the Self- Government Act. These interests survived in the same state, but with two qualifications. First, there was the operation of s 69(3) whereby they were to be "held from" the Territory rather than the Commonwealth. Secondly, by reason of the steps taken under s 70 on 27 June 1978, reserved and reversionary interests in the land in question remained vested in the Commonwealth. However, the content of those reserved and reversionary interests of the Commonwealth was to be ascertained after allowance for the continued operation, by dint of s 57 of the Self-Government Act, of the 1939 Ordinance and the private rights thereunder. This state of affairs would continue until the 1939 Ordinance was further altered or repealed by or under an enactment including a law of the legislature of the Territory.

Any contrary construction of the Self- Government Act, including ss 57 and 70, whereby private property rights were destroyed or impaired, impliedly rather than expressly, and without compensation, is contrary to the tenor of s 50. Reference to this provision has already been made. The text is:

"(1) The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.

(2) Subject to section 70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms."

I have referred to the specific stipulation in s 70(9) that the Commonwealth not be liable in the circumstances with which s 70 is concerned to pay compensation to the Territory. Otherwise, s 50(2) should be accorded its full significance in the construction of the other provisions of the statute.

In the Full Court, after referring to the construction of the legislation which I favour, Beaumont J said in his dissenting judgment ^[F347] :

"That this should be the intention of the Parliament and the outcome, given the absence of any specific provision in the self-government legislation for just compensation for the extinguishment of such interests, notwithstanding the guarantee given by s 50 of that statute, is hardly surprising."

The result, for the areas with which this litigation is concerned (save MLN 24), was to retain for the Commonwealth reversionary and reserved interests in land in which private subsisting interests were continued in operation but held from the Territory on the same terms and conditions on which they were held from the Commonwealth before 1 July 1978 by force of ss 57 and 69(3). There may appear some incongruity in that result. However, it was entirely the product of laws having the same immediate and ultimate source, namely ss 111 and 122 of the Constitution and laws of the Commonwealth made for the government of the Territory in exercise of the power conferred upon the Parliament by s 122.

MLN 19

Special considerations affect MLN 19, independently of those which would arise under the proclamation made on 21 June 1991. MLN 19 had been renewed under the 1939 Ordinance for a period to expire on 31 December 1988. The special considerations arise from steps taken under the Conservation Act and after the commencement of the Self- Government Act.

Section 8A(2) of the Conservation Act ^[F348] empowered the Governor-General, by proclamation, to declare any area within what was defined as the "Region" to be a "conservation zone". The subsoil beneath any land within an area declared to be a conservation zone, extending to such depth below the surface as was specified in the proclamation, was to be taken as being within that conservation zone (s 8A(4)). By proclamation under s 8A(2) dated 5 June 1987, the Governor-General declared the area specified in the Schedule thereof to be a conservation zone and, for the purposes of s 8A(4), specified the subsoil extending to 1,000 metres below the surface as also being in that conservation zone. MLN 19 was within this conservation zone.

This new state of affairs was of great significance for any renewal under the 1980 Act of MLN 19. This was because of the operation of s 8B (in particular s 8B(1)(b) and (3)(d)) upon any interest under MLN 19 in respect of minerals to the depth of 1,000 metres below the surface ^[F349] . The effect of s 8B(1)(b) was that the interest in minerals was not to be renewed and the term thereof was not to be extended except with the consent in writing of the Minister administering the Conservation Act and subject to such conditions as the Minister determined.

In this period there was uncertainty as to the identity of the current regulatory regime for the existing leases at Coronation Hill and disagreements in this respect between the Governments of the Commonwealth and the Territory. French J dealt with the relevant factual matters in detail in his judgment ^[F350] . Until about 1987, the Commonwealth left to the Territory formal aspects of the administration of mining leases which the Commonwealth nevertheless regarded as held from it under the construction it placed upon s 70(6) of the Self- Government Act ^[F351] . As I have indicated, that construction of s 70(6) should not be accepted.

French J held that, whilst application for renewal of MLN 19 had been made on 28 June 1988 to the Secretary of the Department of Mines and Energy of the Territory, the consent of the appropriate Commonwealth Minister had not been sought under the Conservation Act ^[F352] . The result was that MLN 19 had not effectively been renewed. Accordingly, it was not in existence at the time of the relevant proclamation made on 21 June 1991.

Section 8B(2) of the Conservation Act provided that any person adversely affected by the refusal of the Minister to give consent under s 8B(1)(b) was entitled to be paid reasonable compensation by the Commonwealth. However, French J held, no consent having been sought, there had been no refusal which could give rise to this right of compensation ^[F353] . In this Court, it appeared that the appellants had not pleaded in their Statement of Claim any claims under s 8B(2). Leave to amend was sought. Leave should be refused on the footing that, in any event, a claim under s 8B(2) must fail.

French J reached his conclusion after consideration ^[F354] of submissions by Newcrest and BHP that the Commonwealth had intended that MLN 19 be renewed by the issue to Newcrest (then named BHP Gold Mines Ltd) on 3 March 1988 of an authority under the Lands Acquisition Act 1955 (Cth) ("the 1955 Act") ^[F355] . His Honour rejected those submissions.

Section 53(2) of the 1955 Act authorised the grant of rights, powers or privileges (other than leases or occupation licences) over or in connection with land vested in the Commonwealth. French J held ^[F356] that an authority issued under the 1955 Act conferred rights which differed qualitatively and quantitatively from those under MLN 19. That cannot be seriously disputed.

Newcrest and BHP also submit that there was a "constructive refusal" by 31 December 1988 by reason of unreasonable delay by the Commonwealth in dealing with the matter. They refer to the assertion by the Commonwealth that, for the purposes of the applicable mining law in the Territory, the Commonwealth was now, as a consequence of the Self-Government Act, the relevant renewal authority. Sections 69 and 70 of the Self-Government Act were administered by the Minister for Administrative Services; the remaining sections of the Self- Government Act and the Conservation Act were administered by the Minister for the Arts, Sport, the Environment, Tourism and Territories ^[F357] . Newcrest and BHP refer to a letter dated 29 June 1988 addressed to the Secretary of the Department of Administrative Services. This was headed "MINERAL LEASE 19, NORTHERN TERRITORY" and stated:

"Please find herewith a duplicate application for renewal of the above Mineral Lease.

The original application was delivered to the Department of Mines and Energy, Darwin, on 29th June 1988."

A letter from an officer of the Department of Administrative Services which was received by and on behalf of Newcrest on 29 September 1988 responded that the Minister for Administrative Services, not the Minister for Mines and Energy of the Territory, was the responsible authority and that the matter of renewal was being considered. It is apparent from the tenor of the letter that what was being considered was the exercise of the power of renewal in respect of MLN 19 asserted by the Commonwealth upon its construction of s 70(6) of the Self-Government Act.

At no stage in the correspondence did Newcrest advert to the necessity of approval under s 8B(1)(b) of the Conservation Act. That being so, there is no substance in the submission that the Commonwealth is to be treated as having constructively refused that which had not been sought of it.

The holding by French J on this aspect of the case should not be disturbed. It follows that at the time of the relevant proclamation of 21 June 1991, there were no then subsisting rights in respect of either MLN 19 or MLN 24.

There remains the issue of whether, in respect of those mining tenements which subsisted at the times of the respective Proclamations, there was an acquisition of property without just terms.

Acquisition of property

In the introductory passages to these reasons, I indicated the complaint of the appellants as being that, upon the Proclamations coming into effect, the result was that by combination of ss 7(2), (7) and 10(1A) of the Conservation Act there was an acquisition of the then subsisting mining tenements without observance of the constitutional requirement of just terms. It follows from conclusions reached earlier in these reasons that MLN 19 and MLN 24 may be dismissed from such consideration. This is because they no longer subsisted at the relevant times.

None of the provisions relied upon by the appellants is expressed in direct language as effecting an acquisition of any property. However, the question is whether, even if not formally, the appellants effectively have been deprived of "the reality of proprietorship" by the indirect acquisition, through the collective operation of the provisions of the Conservation Act, of "the substance of a proprietary interest". I have referred earlier in these reasons to the passage in the judgment of Dixon J in Bank of NSW v. The Commonwealth ^[F358] which supports these propositions.

The appellants refer to the rights enjoyed in respect of the mining tenements under the 1939 Ordinance. These included, in the terms of the grants in the prescribed forms, a grant and demise of the relevant parcel of land and all the mines, veins, seams, lodes and deposits of the relevant minerals in, on or under the land, together with ^[F359] :

"the rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining, excepting and reserving out of this demise all such portions of the said piece or parcel of land as are now lawfully occupied by persons other than the lessee, or any portion thereof which is now used for any public works or buildings whatsoever".

The appellants say that, in substance, the Commonwealth and the Director acquired identifiable and measurable advantages. In the case of the Director, those advantages were the acquisition of the land freed from the rights of Newcrest to occupy and conduct mining operations thereon and, in the case of the Commonwealth, the minerals freed from the rights of Newcrest to mine them. In accordance with the authorities, that is sufficient derivation of an identifiable and measurable advantage to satisfy the constitutional requirement of an acquisition ^[F360] .

There is no reason why the identifiable benefit or advantage relating to the ownership or use of property, which is acquired, should correspond precisely to that which was taken ^[F361] . This is not a case in the category considered in Health Insurance Commission v. Peverill ^[F362] where what was in issue were rights derived purely from statute and of their very nature inherently susceptible to the variation or extinguishment which had come to pass. I have referred to the proviso in the prescribed forms under the Mining Regulations made under the 1939 Ordinance. They disclose that there was an inherent but limited liability to impairment of the rights conferred by the mining tenements. But what was done was not in exercise of the rights of the Crown under that proviso and went far beyond that which could have been brought about by those means.

Further, the history of the Territory, beginning with the surrender and acceptance effected pursuant to s 111 of the Constitution, shows that the Commonwealth (or the Crown in right of the Commonwealth) acquired a radical title in the sense known to the common law and thereafter the Commonwealth dealt with the subject land in exercise of its rights of dominion over it. This involved the use of statute to carve out interests from the particular species of ownership enjoyed by the Commonwealth and, after self-government, by the Territory in the manner identified earlier in these reasons. It is not correct, for the purposes of the application of s 51(xxxi), to identify the property held by Newcrest as no more than a statutory privilege under a licensing system such as that considered in such decisions as Minister for Primary Industry and Energy v. Davey ^[F363] and Bienke v. Minister for Primary Industries and Energy ^[F364] .

Nor is this a case where there was merely an impairment of the bundle of rights constituting the property of Newcrest. An example of such impairment is found in Waterhouse v. Minister for the Arts and Territories ^[F365] . There, the prohibition on export of the painting in question left the owner free to retain, enjoy, display or otherwise make use of the painting and left him free to sell, mortgage or otherwise turn it to advantage subject to the requirement of an export permit if the owner or any other person desired to take it out of Australia. Here, there was an effective sterilisation of the rights constituting the property in question. That this is so is only emphasised upon a consideration of the contrary submission made by the Commonwealth and the Director. It is true, as they submit, that the mining tenements were not, in terms, extinguished. It is true also that Kakadu extended only 1,000 metres beneath the surface. But, on the surface and to that depth, s 10(1A) of the Conservation Act forbade the carrying out of operations for the recovery of minerals. The vesting in the Commonwealth of the minerals to that depth and the vesting of the surface and balance of the relevant segments of the subterranean land in the Director had the effect, as a legal and practical matter, of denying to Newcrest the exercise of its rights under the mining tenements.

Conclusion

In respect of the mining tenements with the exceptions of MLN 19 and MLN 24, there were acquisitions of property from Newcrest other than on the constitutional requirement of just terms. This result is reached by a series of steps which involve denial of the propositions which supported the orders made by the Full Court. The appeal should be allowed and the orders made by the Full Court should be set aside. Appropriate declaratory relief should be granted which will give effect to the result reached in this Court with respect to the whole of the litigation.

French J gave liberty to apply for further directions dealing with the disposition of the action. This order was one of those set aside by the Full Court. However, no specific order by this Court is required to restore that order. This is because the terms of the remitter order of 8 October 1992 are sufficiently broad to encompass the disposition of any issues which remain pending in the Federal Court. Any further conduct of the litigation should be upon appropriate directions given in the Federal Court.

The respondents should pay the costs of the appellants of the issues to date tried in the Federal Court, the costs in the Full Court and the costs in this Court.

I would implement these conclusions by the following orders.

In respect of the appeal from the Full Court, the orders should be as follows:

1.

Appeal allowed with costs.

2.

Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in place thereof:

(a): declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the Conservation Act, each of MLNs 78-89 was still in force;
(b): declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act, each of MLNs 23, 25-28, 751- 756 was still in force;
(c): declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act, neither MLN 19 nor MLN 24 was any longer in force; and
(d): order that the costs of Newcrest and of BHP of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.

3.

Liberty to apply on 7 days' notice.

In respect of the matter reserved by order of the Chief Justice made on 21 May 1996 for consideration of the Full Court, the orders should be:

1.: Declare that in respect of MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the Conservation Act was invalid to the extent that it effected acquisitions of property from Newcrest other than on just terms within the meaning of s 51(xxxi) of the Constitution.
2.: Declare that in respect of MLNs 23, 25-28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the Conservation Act was invalid to the extent that it effected acquisitions of property from Newcrest other than on just terms within the meaning of s 51(xxxi) of the Constitution.
3.: Order that the costs of Newcrest of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.
4.: Liberty to apply on 7 days' notice.

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