Newcrest Mining (WA) Ltd & Another v Commonwealth & Another
(1997) 190 CLR 513(Decision by: Brennan CJ)
NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE
Court:
Judges:
Brennan CJDawson
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
Decision by:
Brennan CJ
An appeal from a judgment of the Full Court of the Federal Court and a question reserved for the opinion of the Full Court of this Court were heard together. The issues for determination relate to a number of mining leases that were held by or on behalf of the appellant ("Newcrest") - the plaintiff in the proceedings - over parcels of land in the Northern Territory. When the proceedings commenced, the original terms of some leases had expired but the original terms of other leases were current. However, the Northern Territory had purported to renew the leases the original terms of which had expired. The terms of the purportedly renewed leases and the terms of the other leases had not expired when two proclamations were made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Conservation Act") whereby the areas of those leases were added to and included in Kakadu National Park. For the purposes of these proceedings, the leases may be divided into two classes: one class [F1] consists in the leases which had been purportedly renewed by the Northern Territory on the expiry of their original terms, the areas of which were purportedly added to and included in the extension of Kakadu National Park by a proclamation dated 21 June 1991 and published in the Gazette of 24 June 1991; the other [F2] consists in the leases which had not expired when a proclamation dated 13 November 1989 and published in the Gazette of 22 November 1989 purported to add the areas of those leases to and include them in Kakadu National Park.
In relation to the first class, a question arises as to whether the purported renewal of those leases by the Northern Territory was effective to vest in Newcrest the interest of a lessee at the time when the proclamation of 21 June 1991 was made. If the answer to this question is in the affirmative, the next question is whether that proclamation effected an acquisition of Newcrest's property without just terms and, if so, whether the proclamation is invalid for want of compliance with the requirements of s 51(xxxi) of the Constitution. The same question arises mutatis mutandis in relation to the second class of leases. Newcrest submits that the proclamation of 13 November 1989 is invalid as being an acquisition of its property in the leases otherwise than on just terms.
The grant and purported renewal of the leases
All leases had been granted prior to 1978 pursuant to the provisions of the Mining Ordinance 1939-1972 of the Northern Territory. Some were gold-mining leases, others were mineral leases. Leases of both kinds were granted over "Crown land" as defined in the Mining Ordinance [F3] . The definition of "Crown land" prior to 1978 included, subject to certain immaterial exceptions, "all land of the Crown or of the Commonwealth". The Mining Ordinance contained provisions relating to the renewal of leases. Section 42 provided:
"The term of a gold-mining 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 gold- mining leases in force at the time of renewal."
Section 49 contained the like provisions applicable to mineral leases.
In 1978, the Northern Territory (Self- Government) Act ("the Self-Government Act") was enacted. Although, subject to certain exceptions, the Commonwealth's interests in land and the Commonwealth's interests in respect of minerals in the Territory were to be vested in the Territory by sub-ss (2) and (4) respectively of s 69, s 70 authorised the publication of a Gazette notice declaring that any interest in land that was to be vested in the Territory by s 69(2) be acquired by the Commonwealth. On 22 June 1978, s 70 came into operation. A notice was published in the Gazette on 29 June 1978 pursuant to which the Commonwealth acquired on 1 July 1978 [F4] the fee simple interest in the lands over which Newcrest's leases had been granted. But s 70 did not expressly confer power on the Commonwealth to acquire the interest in respect of minerals that was to be vested in the Territory by s 69(4). This difference in drafting between the two sections is explicable by the need to express in s 69(4) an intention to vest in the Territory the mineral interests of the Commonwealth that would otherwise have been reserved to it under other legislation. The acquisition of mineral interests was then covered in s 70 by the words "an interest less than, or subsidiary to, such an interest" (being the interest in land to be vested under s 69(2)). That extension of the power of acquisition was sufficient to include an interest in minerals lying on or in land acquired by the Commonwealth under s 70.
Although the Commonwealth acquired the fee simple in the land the subject of Newcrest's leases, it acquired that interest subject to the leases. That was the effect of s 70(6) of the Self- Government Act which provided:
"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."
Thus, on 1 July 1978, the Commonwealth held the reversions expectant on the determination of the respective leases, Newcrest holding the leases "from the Commonwealth on the same terms and conditions as those on which they were held from the Territory".
Newcrest submitted that, notwithstanding the acquisition by the Commonwealth of a fee simple interest in the lands the subject of Newcrest's leases, Newcrest was entitled to renewal of those leases under ss 42 and 49 of the Mining Ordinance. The submission was based on the contention that the right to renewal was a term of each lease and on the effect of s 57(1) of the Self-Government Act which provided:
"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."
However, it appears that there was no term conferring a right to renewal contained in any of the leases. The learned trial judge found [F5] :
"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 made under the Mining Ordinance . The point was made by the respondent that the form of lease contained no provision for renewal at the expiry of its term."
The point was well made. Moreover, even if the statutory rights to renewal contained in ss 42 and 49 of the Mining Ordinance were treated as a term of the respective leases, the right conferred thereby would not have been an absolute right to have the leases renewed but a right to renew "subject to the Ordinances and regulations ... in force at the time of renewal". By the time when the term of any lease expired after 1 July 1978, the definition of "Crown land" had been amended in s 7 of the Mining Ordinance by excluding all land "of the Commonwealth" [F6] . In consequence of that amendment, no renewal under the Mining Ordinance could have been granted over land which had been acquired by the Commonwealth. Section 8(2) of the Transfer of Powers (Self- Government) Ordinance 1978 (NT), a transitional provision which preserved accrued rights, was relied on to support Newcrest's submission of an accrued right to renewal. But the only relevant rights which Newcrest had had were statutory rights the content of which depended upon the actual state of the Mining Ordinance in force at the time of renewal. Section 8(2) preserved no right to renewal enforceable against the Commonwealth.
The complex of statutory provisions above referred to effectively denied Newcrest the benefit of the statutory right to renew any lease expiring after the Commonwealth acquired the fee simple in the relevant land. Notwithstanding the Commonwealth's acquisition of the relevant land, the Territory purported to renew the leases in the class first referred to. Moreover, the purported renewal of one of these leases [F7] occurred at a time when the relevant land had been incorporated into a declared conservation zone under a proclamation made pursuant to s 8A of the Conservation Act. Section 8B(1)(b) of that Act prohibited renewal of a gold mining or mineral lease "except with the consent in writing of the Minister and subject to such conditions as the Minister determines". The Minister was the Minister administering the Conservation Act. He gave no consent to the renewal and an attempt by Newcrest to clothe the Northern Territory officials with the cloak of agency for the Minister rightly failed at the trial.
Newcrest sought to raise a claim to compensation for refusal of consent under s 8B(2) of the Conservation Act, the relevant parts of which read:
"A person adversely affected by the refusal of the Minister to give consent ... under paragraph (1)(b) is entitled to be paid reasonable compensation by the Commonwealth."
However, on the facts of the case, it seems that the Minister did not decide to refuse consent. Assuming that the Minister had had power to renew the expired lease, Newcrest's case can be put no higher than this: the Minister failed to give a decision on renewal. A failure to give a decision is not a refusal under s 8B(1)(b) giving rise to an entitlement to compensation under s 8B(2). Section 8B(2) is conditioned on an actual refusal, not on a constructive refusal of consent.
It follows that, when the proclamation of 21 June 1991 was made, the leases in the class first referred to had expired. The proclamation affected no current interest of Newcrest and was effective to include the land to which it referred in Kakadu National Park.
The proclamations under the Conservation Act
Section 7 of the Conservation Act authorised the Governor-General by proclamation to declare an area to be a national park and to assign a name to the park, the area of the park being taken to include the subsoil to the depth specified in the proclamation. By a proclamation of 5 April 1979, the Governor-General declared an area set out in a schedule to the proclamation to be the Kakadu National Park and a depth of 1000 metres below the surface was specified to be within the park. The term "Kakadu National Park" was defined [F8] to mean "the area for the time being declared under section 7 to be the park of that name". Section 7(8) of the Conservation Act contained a power to amend a proclamation declaring an area to be a national park. It provides:
"Subject to this section, the Governor- General may, by Proclamation, revoke or amend a Proclamation made under this section."
The proclamations of 13 November 1989 and 21 June 1991 further amended the schedule to the proclamation which had declared the areas included in Kakadu National Park. The proclamation of 13 November 1989 added the land over which Newcrest held unexpired leases; the proclamation of 21 June 1991 added the land over which Newcrest had held leases, the terms of which had then expired.
Prior to the making of these proclamations, the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Conservation Amendment Act") had amended the Conservation Act by, inter alia, inserting sub-s (1A) in s 10:
"No operations for the recovery of minerals shall be carried on in Kakadu National Park".
The phrase "operations for the recovery of minerals" was given a new definition in a section inserted into the Conservation Act as s 3A. The phrase means, inter alia, "any operations or activities for or in connection with, or incidental to, the mining ... or recovery of minerals". The proclamations of 13 November 1989 and of 21 June 1991 ("the impugned proclamations") did not effect an acquisition of Newcrest's leaseholds nor did they effect an acquisition of whatever property Newcrest may have had in the subjacent minerals [F9] . However, by adding to Kakadu National Park the lands over which Newcrest's leases subsisted, the impugned proclamation of 13 November 1989 sterilised the benefits which Newcrest might otherwise have derived from possession of those leases. Did the sterilisation amount to an acquisition of property?
Under its mining leases, Newcrest had the right exercisable against the Commonwealth as reversioner to mine for, extract and take away minerals from the leased land during the term of the lease [F10] . When that land was included in Kakadu National Park, Newcrest's rights to carry on operations for the recovery of minerals were extinguished.
By force of the amendments of the Conservation Act effected by the Conservation Amendment Act, the Commonwealth was left in undisturbed possession of the minerals on and under the land included in Kakadu National Park. The Commonwealth's interest in respect of the minerals was enhanced by the sterilisation of Newcrest's interests therein. In my opinion, by force of the impugned proclamations, the Commonwealth acquired property from Newcrest [F11] . The property consisted not in a right to possession or occupation of the relevant area of land nor in the bare leasehold interest vested in Newcrest but in the benefit of relief from the burden of Newcrest's rights to carry on "operations for the recovery of minerals".
Section 7 of the Conservation Amendment Act provided that -
"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."
Section 7 was not inserted into the Conservation Act. Its effect is expressly restricted to the enactment of the Conservation Amendment Act. Although s 7 negates a right to compensation for a loss of which "the enactment of this Act" is the causative event, the context of that Act shows that the losses to which s 7 is directed are losses produced by the provisions of that Act. The Conservation Amendment Act is directed solely to the prohibition of operations for the recovery of minerals within Kakadu National Park. It would attribute an adventitious operation to s 7 if it were held to apply only in relation to land that had been included in Kakadu National Park up to the time of the enactment and not to apply to land included in the Park after that time. I would therefore hold that s 7 precluded any claim for compensation in respect of the Commonwealth's acquisition of Newcrest's property resulting from the sterilisation of Newcrest's right to carry on operations for the recovery of minerals under its subsisting leases.
There is no doubt but that the interests which Newcrest had in the unexpired leases were "property" within the meaning of that term in s 51(xxxi) of the Constitution. Equally, the interests which Newcrest claimed to have and which would have been vested in it had its other leases been validly renewed would have been "property".
The validity of the Conservation Amendment Act
If, by reason of s 7 of the Conservation Amendment Act or otherwise, the purported acquisition of property effected by the sterilisation of the mining rights of Newcrest under its subsisting leases were not on just terms, the validity of the acquisition is in question. The Commonwealth acquired Newcrest's property by the combined operation of the impugned proclamations and the Conservation Amendment Act. Thus the questions for determination are whether the Parliament of the Commonwealth had legislative power to enact the Conservation Amendment Act and whether, that Act being on the statute book, the Governor-General had power to make the impugned proclamations.
Two provisions were invoked by Newcrest to invalidate the acquisition. The first was s 50(2) of the Self- Government Act which reads as follows:
"... 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."
The second provision is s 51(xxxi) of the Constitution which reads:
"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."
If s 50(2) of the Self-Government Act be construed as a general provision imposing upon the Executive Government of the Commonwealth an obligation to pay just compensation for any acquisition of property in the Northern Territory, s 7 of the Conservation Amendment Act is a special provision which pro tanto repeals s 50(2). If s 50(2) be construed as imposing upon the Executive Government of the Northern Territory an obligation to pay just compensation for acquisitions it makes or authorises, it is irrelevant to the present case. That leaves for consideration s 51(xxxi) of the Constitution.
It was not contested by Newcrest - indeed, it was alleged by Newcrest in its amended statement of claim - that the Parliament had power under s 51(xxix) of the Constitution to forbid mining in Kakadu National Park in implementation of the Commonwealth's obligations under the Convention for the Protection of the World Cultural and Natural Heritage [F12] . The implementation of the Commonwealth's obligations under that Convention, which was effected by prohibiting operations for the recovery of minerals in Kakadu National Park, was a purpose for which the Parliament had power to make laws. But if the sole source of legislative power to enact a law prohibiting mining in Kakadu National Park were the external affairs power, any acquisition of property that was involved in effecting the prohibition would have had to satisfy the requirements of par (xxxi). Paragraph (xxxi) of s 51 abstracts from most of the other powers conferred by s 51 the power to make laws for the acquisition of property for the purposes stated in those other powers. As Dixon CJ said in Attorney-General (Cth) v. Schmidt [F13] :
"The decisions of this Court show that if par (xxxi) had been absent from the Constitution many of the paragraphs of s 51, either alone or with the aid of par (xxxix), would have been interpreted as extending to legislation for the acquisition of land or other property for use in carrying out or giving effect to legislation enacted under such powers. The same decisions, however, show that in the presence in s 51 of par (xxxi) those paragraphs should not be so interpreted but should be read as depending for the acquisition of property for such a purpose upon the legislative power conferred by par (xxxi) subject, as it is, to the condition that the acquisition must be on just terms."
The Conservation Amendment Act is a law which effects an acquisition of property and, in so far as it is a law with respect to external affairs, it must find support in s 51(xxxi) or it is invalid [F14] . A law which, like the Conservation Amendment Act, does not provide just terms for an acquisition can find no support in s 51(xxxi) but it may be supported by some other legislative power. The Commonwealth invokes s 122 as a legislative power available to support the Conservation Amendment Act.
Section 122 of the Constitution - its scope and limitations
In its submissions, Newcrest sought to identify the law for which support had to be sought as the Conservation Act. That is too imprecise an identification. The Conservation Act contains many provisions that are irrelevant to the acquisition of property by the Commonwealth and unconnected with the provisions under which Newcrest's property was acquired. What must be identified are the relevant acquisition and the precise provisions which effected it. Neither the subsisting leases nor Newcrest's rights of possession or occupation under those leases were acquired. What was acquired was the benefit of the extinguishment of Newcrest's rights to carry on operations for the recovery of minerals. Those rights were acquired by operation of the Conservation Amendment Act and it is that Act for which support must be found in s 122 if the acquisition is to be held to be valid. In so far as the acquisition was effected by the impugned proclamations, the same constitutional support is needed to uphold their validity. In other words, if the Conservation Amendment Act be valid in its application to the areas included in Kakadu National Park by the impugned proclamations, the proclamations attract the sterilising effect of s 10(1A) of the Conservation Act to those areas. Of course, if the Conservation Amendment Act be invalid, the impugned proclamations would effectively include the areas to which they relate within Kakadu National Park but the right to carry on operations for the recovery of minerals would not be affected. So the question is this: does s 122 of the Constitution support the provisions of the Conservation Act inserted by the Conservation Amendment Act?
Although the Conservation Act is intended to apply throughout Australia and, in so far as it does, must find support in the Constitution other than s 122, the Conservation Amendment Act may find support also in s 122. The position is stated by Windeyer J in Spratt v. Hermes [F15] :
"If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike. If it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will I consider fail altogether of effect. Whether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature."
The provisions of the Conservation Amendment Act are expressed to apply only to areas of land in Kakadu National Park. As s 122 requires no more to attract it than a sufficient nexus between the law and the territory [F16] , those provisions are a law which attracts the support of s 122 unless some further consideration limits the operation or scope of s 122.
To repel the conclusion that s 122 supports the Conservation Amendment Act, one or other of two propositions must be established: either (i) no law which would find support in s 51(xxxi) but for a failure to provide just terms can be supported by another head of power; or, (ii) the requirement of just terms that qualifies the power conferred by s 51(xxxi) implies that the power to make laws for the compulsory acquisition of property is abstracted from s 122 as it is abstracted from most of the other powers conferred by s 51. Both propositions are inconsistent with settled constitutional doctrine.
(i) Two heads of power
When a law is supportable by a constitutional power, it is immaterial to its validity that, if some particular requirement were met, it would also be supported by a second constitutional power. So long as the Parliament has power to enact a law, from whatever provision of the Constitution that power be derived, the law is valid. As Starke J said in Ex parte Walsh and Johnson; In re Yates [F17] :
"A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source derived . [The section under challenge] can be justified, in my opinion, if it is competent under any of the powers vested in Parliament, whatever the title of the Act, and whatever indications there are in the Act as to the precise power under which it may be suggested that Parliament purported to act." (Emphasis added.)
It follows that, unless there be some reason for denying the sufficiency of the power conferred by s 122 to support the Conservation Amendment Act, the Conservation Amendment Act is valid.
(ii) Section 122 and the requirement of just terms
Covering cl 3 of the Constitution provided for the uniting of the people of the several States "in a Federal Commonwealth under the name of the Commonwealth of Australia". The Constitution was "designed to fulfil the objectives of the federal compact" [F18] . Those objectives necessarily included the prescription of the organs of government and their constitution (both Commonwealth and State), the prescription of the powers which the Commonwealth and State governments were to exercise respectively in creating, administering and applying the laws of the several parts of the Commonwealth, the regulation of the financial and trading relationships between the Commonwealth, the States and their people and the prescription of other powers and functions which were to belong solely to the new polity of the Commonwealth. Parts I to IV of Ch I, Chs II and III, certain sections in Ch v. and Ch VII deal with the organs of government and their constitution. Part v. of Ch I and some other sections of Ch v. deal with the legislative powers of the Commonwealth and the respective States. Chapter IV deals with finance and trade. Chapter VI deals with topics discrete from those dealt with elsewhere in the Constitution. It is concerned with the formation and admission of new States, with alterations of State boundaries and, in s 122, with the government of territories that are not States. The government of the territories is a function exclusive to the Commonwealth.
The legislative power conferred by s 122 stands outside the provisions which express the distribution of powers between the Commonwealth and the States. It is distinguished from the provisions which confer other legislative powers on the Parliament in three respects: in text and structure, in the areas to which it is directed and in the absence of any sharing of legislative power with the States.
The text of s 122 confers power to "make laws for the government of any territory", that is, a power to prescribe the mode of government of a territory as well as its domestic laws. Sir W Harrison Moore identified three possible modes of territory government [F19] :
"The territory may be governed directly by the Commonwealth exercising all the powers of an unitary government over it; or it may be governed as a dependency with a subordinate government subject to the paramount authority of the Commonwealth; or finally, it may be admitted as a State (sec 121)."
Section 122 therefore provides constitutional support for laws enacted by the Parliament as the domestic laws of a territory and for laws enacted by a territorial legislature on which the Parliament has conferred power to enact the laws in question.
In so far as legislative power is conferred by s 122 in unqualified terms, the subject matter and content of the domestic laws of a territory, whether made in immediate or mediate exercise of the power, are prima facie unlimited. The section, being within Ch VI of the Constitution, is structurally separated from the grants of legislative power in Pt v. of Ch I that are exercised for "the peace, order, and good government" of the Commonwealth as a whole. The latter powers are conferred "with respect to" specified subjects, not as a grant of universal legislative power.
The s 122 power is limited, however, to the making of laws for the government "of any territory", not for the peace, order and good government of the Commonwealth as a whole. Although a s 122 law can have an effect outside the territory, a territorial nexus with the law is needed to attract the support of s 122 and, as I point out below, the nature of that nexus is critical to any extra-territorial operation of a law dependent on s 122 for validity.
The power conferred by s 122 is not possessed by or shared with any State. The States possess no power over external territories and, as to internal territories, s 111 provides that, on the acceptance by the Commonwealth of an internal territory that is surrendered by a State, the territory becomes "subject to the exclusive jurisdiction of the Commonwealth".
The universal character of the s 122 power and its separation from the powers conferred by s 51 have been recognised throughout the history of the Commonwealth. In Buchanan v. The Commonwealth [F20] Barton ACJ said:
"it must be observed that sec 122, by itself, contains all the necessary power to legislate for a territory ... It does not need any assistance from sec 51 in respect either of taxation, or of anything else. It would suffice for all its purposes if there were no sec 51 at all. It is more ample than sec 51 for all the purposes of a territory."
In R v. Bernasconi [F21] Isaacs J rejected a submission that s 80 of the Constitution limited the mode of trial that might be prescribed for trials in a territory on indictment for contravention of a s 122 law. He said that s 80 -
"is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self- governing community. And that is its sole operation.
When the Constitution, however, reaches a new consideration, namely, the government of territories, not as constituent parts of the self-governing body, not 'fused with it' as I expressed it in Buchanan's Case [F22] , but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power.
It is plain that that section does not consist merely of additional legislative power over territories beyond the powers already conferred upon Parliament in relation to the Commonwealth itself, for its language is unrestricted and covers many of the subjects already specified in sec 51. It is an unqualified grant complete in itself, and implies that a 'territory' is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers."
Perhaps the extreme view of s 122 was taken by Knox CJ and Gavan Duffy J in Porter v. The King; Ex parte Yee [F23] where, in an obiter, their Honours said that -
"in legislating for ... territories the Parliament of the Commonwealth must rely wholly upon the powers contained in [s 122], and cannot have recourse to legislative powers contained in Chapter I, Part V, of the Constitution, which have reference only to laws for the peace, order and good government of the Commonwealth."
The view that s 122 was the only (albeit sufficient) power to authorise the government or control of external territories was noted by Dixon J in Ffrost v. Stevenson [F24] but he did not find it necessary in that case to decide whether that view was correct. However, in the same case [F25] Latham CJ said:
"In my opinion the source of the authority of the Commonwealth Parliament to make laws for the Territory of New Guinea is to be found in sec 122 and not in sec 51(xxix), the power to legislate with respect to external affairs."
In Attorney-General of the Commonwealth of Australia v. The Queen ("the Boilermakers' Case ") [F26] , the Privy Council referred to R v. Bernasconi and Porter v. The King; Ex parte Yee and said:
"It appears to their Lordships that these decisions (the latter of which was not reached without difficulty and dissent) can be satisfactorily reconciled with the opinion they have formed in the present case by regarding Chap III as exhaustively describing the federal judicature and its functions in reference only to the federal system of which the Territories do not form part . There appears to be no reason why the Parliament having plenary power under s 122 should not invest the High Court or any other court with appellate jurisdiction from the courts of the Territories. The legislative power in respect of the Territories is a disparate and non- federal matter ." (Emphasis added.)
The disparate non-federal character of the territories power is illustrated by the absence of any jurisdiction in this Court under s 73 of the Constitution to entertain appeals from the Courts of the Territories, the jurisdiction being conferred by laws enacted under s 122 [F27] . Courts of the Territories are not "federal" courts, even though they are created by the Parliament, since those Courts are not created in exercise of a federal legislative power but in exercise of the non-federal power conferred on the Parliament by s 122 [F28] .
Then, in Lamshed v. Lake [F29] Dixon CJ said:
"In considering the operation of s 122 an obvious starting point is that it is 'the Parliament' that is to make the law pursuant to the power s 122 confers. That necessarily refers to s 1 of the Constitution and carries with it the provisions of Pts I, II, III and IV of Chap I. Leaving aside, for the time being, Pt V relating to the legislative powers of the Commonwealth, the next thing to point out in s 122 is the use of the expressions 'accepted by the Commonwealth' and 'placed under the authority of the Commonwealth'. The Commonwealth is the polity established by the Constitution and the 'authority' is the full legal authority which under the Constitution it possesses. ... The legislative power given by s 122 to the federal Parliament is necessarily not a power to make laws with respect to a subject matter defined with reference to a description of conduct, activity or head of law (like bills of exchange) considered suitable for control by a central as distinguished from the local State legislatures. For that reason most of Pt v. of Chap I has no relation to it , and since Chap III has been considered to be concerned with judicature in relation to that division of powers ( R v. Bernasconi ) [F30] it may be treated as inapplicable so that laws made mediately or immediately under s 122 are primarily not within the operation of the Chapter ." (Emphasis added.)
If the power to make law mediately or immediately under s 122 is not qualified by Ch III of the Constitution, it would be surprising if a qualification of a specific head of power contained in s 51 limited the legislative power conferred by s 122. In the next case of significance, Spratt v. Hermes [F31] , Barwick CJ said:
"Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s 122 to 'for the government of the Territory'. This is as large and universal a power of legislation as can be granted. It is non-federal in 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. " (Emphasis added.)
Kitto J said [F32] :
"The width of the legislative power it confers is the crucial consideration. Whether or not one or two of the miscellaneous provisions in Chap v. apply to the territories - ss 116 and 118 have been suggested, eg in Lamshed v. Lake [F33] , though further consideration has made me more doubtful than I was about them - it seems clear enough that the limitations which Chap I puts upon legislative power in the working of the federal system , anxiously contrived as they are with the object of keeping the Parliament to the course intended for it, are thrown aside as irrelevant when the point is reached of enabling laws to be made for the government of territories which stand outside that system ; for s 122 uses terms apt to authorize the Parliament to make what provision it will for every aspect and every organ of territory government. The exercise of the judicial power which is a function of government of a territory is within the unrestricted authority thus in terms conferred. The Court decided quite early, in Buchanan v. The Commonwealth [F34] , that the Constitution, addressing itself here to something different from that to which its first five chapters have been devoted , makes on the new topic a provision which is appropriately free from all concern with problems of federalism . The concern here is not only with 'a new consideration', as Isaacs J called it in R v. Bernasconi [F35] , but with 'a disparate non- federal matter' as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v. The Queen [F36] ." (Emphasis added.)
Consistently with this uniform line of authority, an unanimous Court gave judgment in Teori Tau v. The Commonwealth [F37] . The Court was constituted by five of the Justices who had sat in Spratt v. Hermes (Barwick CJ, Kitto, Menzies, Windeyer and Owen JJ) together with McTiernan and Walsh JJ. In Spratt v. Hermes the entire line of s 122 cases had been argued. The judgment in Teori Tau rejected the same argument as that put in the present case. The Court said [F38] :
"This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. ...
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. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.
It has been held with respect to the heads of legislative power granted by s 51 of the Constitution that by reason of the presence in that section of par (xxxi) none of the other heads of power, either of itself or aided by the incidental power, embraces a power to make laws for the acquisition of property. It is submitted by counsel that because it has been so held and 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. That is to say, it is said, in substance, 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.
In our opinion, this submission is clearly insupportable. Section 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. Section 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. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section."
Although Teori Tau follows in direct line the cases which considered s 122 since the establishment of the Commonwealth, Newcrest sought leave to reopen that decision. In my opinion, it is singularly inappropriate to reopen the decision in Teori Tau , especially when the ground for reopening was described by an unanimous Court familiar with the jurisprudence of s 122 as "clearly insupportable". Teori Tau has been followed, uniformly and unquestioningly, in this Court in a line of cases, including: Clunies-Ross v. The Commonwealth [F39] , Northern Land Council v. The Commonwealth [F40] , Capital Duplicators Pty Ltd v. Australian Capital Territory [F41] , Australian Capital Television Pty Ltd v. The Commonwealth [F42] and Mutual Pools & Staff Pty Ltd v. The Commonwealth [F43] .
A clear recognition of the non- application of the requirement of just terms to a law for the acquisition of property in a territory enacted under s 122 appears in the majority judgment in Clunies-Ross v. The Commonwealth [F44] :
"First, the power to acquire property for a public purpose which the Act confers is not conferred merely in pursuance of the legislative power contained in s 51(xxxi). It is also conferred in pursuance of s 122 of the Constitution in that, in relation to land in a Territory, the purpose for which the land may be acquired includes 'any purpose in relation to that Territory'. In so far as it includes a power to acquire land by agreement, it is conferred pursuant to either other specific constitutional grants of legislative power or the 'incidental' power (s 51(xxxix)): see Trade Practices Commission v. Tooth & Co Ltd [F45] . The fact that that power of acquisition is not conferred merely in pursuance of the provisions of s 51(xxxi) weakens the strength of any presumption that the words used in the Act [F46] should be construed conformably with the corresponding words used in that paragraph." (Emphasis added.)
Teori Tau rests on a principle "carefully worked out in a significant succession of cases" [F47] . The principle is that s 122 confers a power that is additional to the powers conferred by s 51 and is not qualified by that section, the s 122 power being conferred solely on the Commonwealth not for the government of the Commonwealth as a whole but for the government of Commonwealth territories. That is not to say that the scope of the power is not limited by implications drawn from the federal structure, but it is to say that no limiting implication is to be found in the text of s 51(xxxi).
The principle of Teori Tau and the line of cases of which it is a part satisfied the political exigencies in which the Constitution was framed. The s 122 power was to be exercised in the diverse social and economic conditions of territories which might be accepted by the Commonwealth [F48] . It would have been improvident to place on the Parliament, as the sole legislature for the territories, the restrictions that limited the s 51 powers which were to be exercised in the government of the whole federal Commonwealth.
However, Newcrest submits that s 51(xxxi) abstracts from s 122 the power to make laws for the compulsory acquisition of property in the same way as it abstracts that power from other powers conferred by s 51 and that it does so in order to preserve the "constitutional guarantee" of just terms. Of course, the description of "constitutional guarantee" has been used in relation to the requirement of just terms, but only in the context of laws that would otherwise have found their support in one of the other paragraphs of s 51. It has never been used in reference to a law enacted under s 122. Indeed, the description was used in Clunies-Ross [F49] in the paragraph immediately following the Court's holding that the power to acquire property might be conferred in pursuance of either s 51(xxxi) or s 122. And in Trade Practices Commission v. Tooth & Co Ltd [F50] , Mason and Aickin JJ stated the settled view to be that s 51(xxxi) abstracted the acquisition power from other heads of power "leaving aside s 122".
The long history of s 122 as a universal legislative power standing apart from and additional to the powers conferred by s 51 denies the possibility that the important governmental power of acquiring property compulsorily is abstracted from s 122. The contrary proposition can be tested by assuming that the legislature of a territory on which general legislative powers have been conferred [F51] enacts a law authorising the acquisition of property within the territory. Section 51(xxxi) would not apply to the law for that provision is expressed to apply only to laws made by the Parliament for a purpose in respect of which the Parliament has power to make laws. If the power to enact a law for the compulsory acquisition of property were held to be abstracted from s 122, how could the Parliament confer that power on the territorial legislature? The territorial law would be invalid, for the Parliament could not authorise the territorial legislature under s 122 to do what it could not do itself under that section. Yet there is no other provision which would empower the Parliament to confer on a territorial legislature power to make a law for the compulsory acquisition of property. If such a territorial law be valid, it would have derived its constitutional force from s 122. The power conferred by that section must therefore be additional to and unqualified by s 51(xxxi). No doubt s 50(1) of the Self- Government Act was introduced in order to impose on the legislature of the Northern Territory a statutory restriction similar to the constitutional restriction imposed on the Parliament of the Commonwealth by s 51(xxxi). Of course, if s 122 does confer a power to make laws for the compulsory acquisition of property, that power is not qualified by the requirement of just terms in s 51(xxxi). The requirement of just terms qualifies the legislative power of acquisition conferred by s 51(xxxi); it qualifies no other power.
Although the territories power is not restricted by any limitation derived from the text of s 51, a restriction relevant to the power to make a law for the compulsory acquisition of property arises from the nature of the territories power and from the structure of the Constitution. The competent legislative authority of a law area is the authority which alone can enact a law which determines the ownership of property within that area. In international law, the principle is stated in Attorney-General (United Kingdom) v. Heinemann Publishers Australia Pty Ltd [F52] :
"The principle denies jurisdiction in a court to determine a claim of title to the property based on the operation of a statute or executive act of the foreign State on that property outside the territory of the foreign State. It is otherwise when the claim of title is based on an exercise of sovereign authority with respect to the property within the territory of the foreign State".
Or, as Lord Denning MR stated the principle in A-G of New Zealand v. Ortiz [F53] :
"By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority."
By analogy, no legislature in an Australian State has power to enact laws for the compulsory acquisition of property in another State or in a Territory. Nor can a law of a territory under s 122 - in which I include a law enacted by the Parliament of the Commonwealth for the government of a territory - authorise the compulsory acquisition of property situated in a State. The nexus which is sufficient to attract the support of s 122 to a law providing for the compulsory acquisition of property is that the property be situated within the Territory. It is not sufficient that the acquisition is for a territorial purpose or that some personal nexus between the territory and the owner of the property be established. The federal compact permits property to be compulsorily acquired in a State pursuant to a law of the Commonwealth but the terms on which that is provided for are set out in s 51(xxxi). If the territories power could be exercised to acquire property in a State, it could distort or affect the operation of those provisions of the Constitution which express the federal compact and protect the constitutional interests of the people living under it [F54] . But the structure of the Constitution shows that, as between the Commonwealth and the States, the powers of the Commonwealth are those conferred in Chs I to v. and that s 122 confers power on the Commonwealth as an additional or supplementary power for exercise in performing the function of governing the territories, but not as a power which enlarges the powers of the Commonwealth to make laws for the peace, order and good government of the Commonwealth pursuant to the federal compact. That is not to deny that a law enacted by the Parliament under s 122 has the character of a law of the Commonwealth. I would respectfully agree with the views expressed by Dixon CJ on that question in Lamshed v. Lake [F55] except that the scope of s 122 needs to be stated in more restricted terms than those used by Dixon CJ [F56] in order to preserve the federal compact and to protect the constitutional interests of the people living under it.
As constitutional support for a s 122 law for the compulsory acquisition of property depends upon the property being within the Territory, a law for the compulsory acquisition of property in a State could not be supported as an exercise of an implied extension of the s 122 power to cover what is incidental to its fulfilment. Other kinds of s 122 laws may have an extra-territorial operation. That question engaged the Court in Lamshed v. Lake and in Attorney-General (WA) v. Australian National Airlines Commission [F57] . It probably will arise for further consideration in other cases. But it does not arise in the present case.
If the Commonwealth requires property situated in a State for a territory purpose - say, premises to house an office for the administration of the territory - a compulsory acquisition of the property could be effected only in exercise of the federal acquisition power conferred by s 51(xxxi). The acquisition of property for such a territory purpose would be a matter incidental to the execution of the territories power and could be effected with the combined support of s 51(xxxi) and (xxxix).
Teori Tau is not only consistent with an unbroken line of authority; it is also, in my opinion, correct. If it is not adhered to, the powers of territorial legislatures with respect to the compulsory acquisition of property are denied. There is a further and powerful consideration which tells against the reopening of Teori Tau . Since the Commonwealth first assumed the administration of territories, it has been understood that the power of compulsory acquisition of property within the territory is derived from s 122. During that time, numerous property transactions have taken place in the course of the Territories' development. If the s 122 power does not support compulsory acquisitions, any grant or transfer of property that involved a compulsory acquisition is exposed to uncertainty if not invalidity. No validation of such a transaction could be effected by a retrospective payment of compensation; the legal consequence of any invalidity would simply be that the grant or transfer must be taken never to have occurred. That would produce consequences of unforeseen and unforeseeable difficulty. Teori Tau ought not be reopened.
In my respectful opinion, the proposition that the Conservation Amendment Act cannot be a law for the government of the Northern Territory because those provisions are a law for the compulsory acquisition of property should be rejected as "clearly insupportable" (to adopt the term used in Teori Tau ).
The appeal should be dismissed and the question whether the impugned proclamations are invalid should be answered: No.