Newcrest Mining (WA) Ltd & Another v Commonwealth & Another
(1997) 190 CLR 513(Judgment by: Dawson J)
NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE
Court:
Judges:
Brennan CJ
DawsonToohey
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:
Dawson J
This case concerns a claim to certain mining leases in the area of Coronation Hill in the Northern Territory. In 1987 the second appellant, BHP Minerals Limited, transferred its interest in the leases to the first appellant, Newcrest Mining (WA) Limited ("Newcrest"). Various issues were raised upon the pleadings, including the question whether Newcrest's property in the mining leases was acquired by the Commonwealth otherwise than on just terms in breach of s 51(xxxi) of the Constitution. The issues other than that involving s 51(xxxi) were remitted for determination to the Federal Court and this Court now has before it an appeal from the judgment of the Full Court of the Federal Court following upon the remitter as well as the question involving s 51(xxxi) which was not remitted. The relevant facts and legislation are set out in the judgment of Gummow J, but because of the view which I take of the question involving s 51(xxxi), I have no need to refer to them in detail.
The lands over which Newcrest claims mining leases are included in Kakadu National Park. That park was proclaimed in three stages under s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) ("the Act"). That sub-section provides that the Governor-General may declare by Proclamation an area specified in the Proclamation to be a park or reserve and assign a name to that park or reserve. On 5 April 1979 Stage 1 of Kakadu National Park was proclaimed. Consistently with s 7(6) of the Act, the Proclamation specified the depth of the subsoil to be taken to be within the park to be 1,000 metres. On 22 February 1984 Stage 2 was proclaimed and a similar depth specified and on 5 June 1987 Stage 3 was proclaimed with a similar depth. Stage 3 was extended by Proclamation on 13 November 1989 and again on 21 June 1991. It is the Proclamations dated 13 November 1989 and 21 June 1991 which the appellants assert are invalid, they together being with respect to an area of land over which the appellants claim their mining leases. It is those Proclamations which, according to the appellants' contention, constitute an acquisition of property otherwise than upon just terms.
Broadly speaking, upon self-government being accorded to the Northern Territory in 1978, all land in the Territory which was previously vested in the Commonwealth was transferred to the Territory. However, simultaneously the fee simple in certain lands, including the lands which were to comprise Kakadu National Park, was acquired by the Commonwealth pursuant to s 70 of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self- Government Act") [F58] .
Under s 7(7) of the Act:
"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 is the Director of National Parks and Wildlife who is a corporation under s 15 of the Act. The Commonwealth accepts that Newcrest's mining leases, if they exist, are property within the meaning of s 51(xxxi) of the Constitution. However, it says that any interest held by Newcrest under the leases was not under s 7(7) vested in the Director and continued to be held by it from the Commonwealth. Nothing would seem to turn upon this.
The Act was amended by the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the Amending Act"). The Amending Act inserted in the definition section of the Act the following:
"'Kakadu National Park' means the area for the time being declared under section 7 to be the park of that name".
The Amending Act also inserted s 10(1A) in the Act. That sub-section provides:
"No operations for the recovery of minerals shall be carried on in Kakadu National Park."
Section 7 of the Amending Act provides:
"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."
The appellants contend that the words "by reason of the enactment of this Act" in s 7 of the Amending Act restricted the effect of that section to the situation as it existed when the Amending Act came into force on 18 May 1987. That is to say, the only liability for compensation which s 7 denied was liability arising from the prohibition of mining in Kakadu National Park as it existed at that date. Stage 3 of Kakadu National Park had not been implemented by 18 May 1987 and the lands said to be the subject of the mining leases were included in Stage 3, as extended by later Proclamations. Thus, the appellants argued, s 50(2) of the Self-Government Act continued to apply in relation to the mining leases, unaffected by s 7. Section 50(2) provides that, subject to s 70 (which is immaterial for present purposes):
"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".
However, to adopt the construction of s 7 of the Amending Act for which the appellants contend is to disregard the insertion in the Act by the Amending Act of the definition of "Kakadu National Park" as meaning "the area for the time being declared under s 7 [of the Act] to be the park of that name". The effect of that definition is to give s 10(1A) of the Act an ambulatory effect, prohibiting mining operations in Kakadu National Park as it is constituted from time to time. In asserting an acquisition of property, Newcrest relies upon the prohibition against the exploration of the mining tenements in question. Since s 10(1A) of the Act was inserted by the Amending Act, any acquisition of property was by reason of the enactment of the Amending Act.
It is sufficient for my purposes to assume that the Proclamations dated 13 November 1989 and 21 June 1991, together with the statutory prohibition against mining operations in Kakadu National Park, constituted the acquisition otherwise than upon just terms of property held by Newcrest in the form of the mining leases which it claims.
Under s 122 of the Constitution the Commonwealth Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth. Upon federation, the area which is now the Northern Territory was part of the State of South Australia [F59] . By s 7 of The Northern Territory Surrender Act 1907 (SA) the Northern Territory was surrendered to the Commonwealth by South Australia in accordance with the agreement set out in the schedule to that Act. By s 6(1) of the Northern Territory Acceptance Act 1910 (Cth) the Northern Territory was declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth by the name of the Northern Territory of Australia. The latter enactment was proclaimed to commence on 1 January 1911.
The legislative power conferred by s 122 is "plenary in quality and unlimited and unqualified in point of subject matter" [F60] . Thus, as Barwick CJ explained in Spratt v. Hermes [F61] :
"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."
The result is that the Commonwealth is, with respect to a territory, a completely sovereign legislature [F62] . All that need be shown to support an exercise of the power under s 122 is that there is a sufficient nexus or connection between the resultant law and any territory [F63] . Notwithstanding a clear connection between the Act and the Northern Territory, the appellants argue that the relevant provisions of that Act cannot be supported by s 122.
The argument proceeds upon the basis that the Act is intended to have an application throughout Australia, not just in the Northern Territory [F64] , so that it cannot be characterised as a law for the government of the Northern Territory within the meaning of s 122. That argument cannot be sustained. True it is that the Act has an application beyond the Northern Territory and, to the extent that it does, the legislative power to support its provisions must be found in s 51 rather than s 122. An acquisition of property, where reliance could not be placed upon s 122, would be under s 51(xxxi) and require just terms, for, as has frequently been observed, the presence of par (xxxi) in s 51 abstracts from the other paragraphs of that section the power to legislate with respect to the acquisition of property for any purpose in respect of which the Parliament has power to make laws and makes par (xxxi) the exclusive repository of that power [F65] .
But the fact that the Act extends in its application beyond the Northern Territory does not mean that in its application to the Northern Territory it is not a law for the government of the Territory. One of the objects of Pt II of the Act, which is headed "Parks and Reserves" and contains the provisions relevant in this case, is expressed as being "to make provision for the establishment and management of parks and reserves ... in the Territories" [F66] , indicating to my mind a clear intention to invoke the support of s 122 to the extent that it is available. Other sections in Pt II are given a specific application in the Northern Territory [F67] .
In any event, the appellants' argument denies the well-established principle that in passing a law of general application the Parliament is entitled to rely upon all those powers which are able to support the law. The particular application of that principle where s 122 is involved was explained by Windeyer J in Spratt v. Hermes [F68] as follows:
"when the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling. 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."
It is, in my view, beyond question that Pt II of the Act was intended to apply in the Northern Territory regardless of the validity of its application elsewhere. Not only is it an express object of Pt II that it make provision for the establishment and management of parks and reserves in the Territories, but, as I have said, Pt II is given specific application to areas within the Northern Territory, including Kakadu National Park. There is not only a clear nexus or connection between the legislation and the Northern Territory which is sufficient to support it as an exercise of legislative power for the government of the Territory under s 122 but there is also a clear indication of an intention that its provisions should so apply irrespective of the validity of its application elsewhere.
The appellants rely upon the establishment of the Northern Territory as a separate body politic with extensive powers of self-government as indicating that the Act was not intended to be an exercise of the power to make laws under s 122 of the Constitution. They do not, and could not, submit that, having granted a measure of self-government, the Commonwealth has relinquished its own power to legislate for the government of the Northern Territory. Even if in some circumstances the granting of self-government may have relevance in determining parliamentary intention where legislation expressed to apply generally cannot be validly so applied [F69] , it remains a question of construction whether the legislation is nevertheless intended to apply to a territory. As I have said, there is clear indication in the Act that Pt II was intended to apply in the Northern Territory, even if it could not validly be applied elsewhere.
The appellants further argue that if Pt II of the Act is supported by s 122 of the Constitution in addition to s 51, the requirement of just terms imposed by s 51(xxxi) nevertheless applies. They make this submission in reliance upon the well-known passage in the judgment of Dixon CJ in Attorney-General (Cth) v. Schmidt [F70] :
"It is hardly necessary to say that when you have, as you do in par (xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that 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 authorised the same kind of legislation but without the safeguard, restriction or qualification."
However, whilst the other legislative powers granted by s 51 of the Constitution may be seen as being in the same context as par (xxxi) for the purposes of that passage, the same can hardly be said of s 122. Appearing as it does in a separate chapter of the Constitution headed "New States", the legislative power in respect of the territories "is a disparate and non-federal matter" [F71] which, it may also be noted, is not expressed to be subject to the Constitution. Not only does s 122 appear in a different context, but it is a context which provides no basis whatsoever for suggesting any limitation upon the power which it confers save for the requirement of a territorial nexus. On the contrary, its terms deny any such limitation for there can be no formula for the more complete bestowal of legislative power than that used in s 122.
Not only that, but the submission is in direct conflict with the unanimous decision of this Court in Teori Tau v. The Commonwealth [F72] . In that case, the Court rejected a submission 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 by the Commonwealth in a territory. It did so without calling upon the defendants because it was "able to reach, without any doubt, a clear conclusion upon the question submitted" [F73] . The Court said [F74] :
"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."
In Clunies-Ross v. The Commonwealth [F75] , six members of this Court affirmed that s 122 confers power to acquire property, such power not being abstracted from it by s 51(xxxi). In Northern Land Council v. The Commonwealth [F76] , a unanimous Court relied upon Teori Tau without questioning it in any respect, as did three members of the Court in Capital Duplicators Pty Ltd v. Australian Capital Territory [F77] . Moreover, Teori Tau was affirmed by McHugh J in Australian Capital Television Pty Ltd v. The Commonwealth [F78] and by four members of the Court in Mutual Pools & Staff Pty Ltd v. The Commonwealth [F79] . Thus, despite other differences of opinion regarding s 122, the relationship between that section and s 51(xxxi) is settled by a unanimous decision of this Court which has stood for nearly thirty years and which, far from having ever been doubted, has been relied upon on numerous occasions [F80] . The appellants seek to have the Court re-examine the correctness of Teori Tau , but they should be refused leave to do so. The consequences of departure from settled authority in this instance may be severe. But more importantly, in light of the acceptance in this Court of Teori Tau , it is, I think, difficult to suggest that the decision is plainly wrong. In fact, in my view, Teori Tau is a manifestly correct decision.
It is important to bear in mind that, notwithstanding its requirement of just terms, s 51(xxxi) confers a legislative power. The requirement of just terms is sometimes referred to as a guarantee [F81] , but that should not be allowed to obscure the fact that it is a qualification imposed upon a legislative power. That power is the power to make laws for the acquisition of property from any State or person for any purpose in respect of which the Parliament has power to make laws. Paragraph (xxxi) is set in s 51 which enumerates those subject matters in respect of which, as part of the federal division of power, the Commonwealth Parliament has power to legislate for the peace, order, and good government of the Commonwealth. The enumerated powers in s 51 circumscribe the purposes for which the Commonwealth Parliament is given power to make laws for the acquisition of property, for they provide the purposes in respect of which that Parliament has power to make laws. As Dixon CJ observed in Attorney-General (Cth) v. Schmidt [F82] in a judgment in which Fullagar, Kitto, Taylor and Windeyer JJ concurred:
"It is perhaps not easy to express in a paraphrase the extent of the operation of s 51(xxxi) and thus to define its full scope and application but it is at least clear that before the restriction involved in the words 'on just terms' applies, there must be a law with respect to the acquisition of property (of a State or person) for a purpose in respect of which the Parliament has power to make laws. The expression 'for any purpose' is doubtless indefinite. But it refers to the use or application of the property in or towards carrying out or furthering a purpose comprised in some other legislative power."
Section 122 also confers legislative power upon the Parliament, but the power which it confers is a plenary power which is not limited to any subject matter and hence does not restrict the purposes for which laws may be made for the government of a territory. The fact that the power is a power to make laws for the government of any territory does not supply a purpose, at all events in the sense in which that word is used in s 51(xxxi), any more than the power of the Parliament under s 51 to make laws for the peace, order, and good government of the Commonwealth supplies a purpose for which the Parliament has power to make laws within the meaning of s 51(xxxi). The purposes to which s 51(xxxi) refers are limited purposes which are not to be discerned in the plenary legislative power granted by s 122. The power granted by s 122 is unlimited in terms of subject matter and, hence, in terms of purpose, with the result that the power to make laws for the acquisition of property which it necessarily embraces is a completely different power from that granted by s 51(xxxi).
This may, perhaps, be more readily appreciated by comparing the opening words of s 51 with s 122, bearing in mind that the reference in s 122 to "the government of any territory" is no less extensive in relation to a territory than is the expression "the peace, order, and good government of the Commonwealth" in relation to the Commonwealth in s 51 [F83] . However, in the case of s 51, unlike s 122, the Constitution then proceeds to enumerate particular matters "with respect to" which the power conferred may be exercised. Clearly, it is not the power to make laws for the peace, order, and good government of the Commonwealth which is a "purpose in respect of which the Parliament has power to make laws" within the meaning of s 51(xxxi). The purposes referred to in s 51(xxxi) are limited purposes and those limits must be found in those matters contained in the paragraphs of s 51 and other sections of the Constitution which confer limited powers. However, the power to make laws for the government of any Territory is not limited in any such way and thus is not a "purpose in respect of which the Parliament has power to make laws". Thus, s 51(xxxi) can have no application in relation to the legislative power granted by s 122. The valid exercise of s 51(xxxi) is dependent upon the observance of a limitation laid down by that paragraph by reference to the subject matter of other limited powers.
There is a second reason why s 51(xxxi) cannot, in my view, be construed as limiting the power conferred by s 122. Section 122 is a power to legislate for the government, that is to say, the peace, order, and good government, of any territory. However, the requirement of just terms to be found in s 51(xxxi) is confined by its terms to laws for the peace, order, and good government of the Commonwealth. When the Commonwealth Parliament legislates for the government of any territory pursuant to s 122, even if that territory may be regarded as part of the Commonwealth, it is not legislating for the peace, order, and good government of the Commonwealth but for something entirely different. Sections 51 and 122 clearly posit the government of any territory and the peace, order, and good government of the Commonwealth as different things. A law for the government of any territory is no more a law for the peace, order and good government of the Commonwealth than is a law for the peace, order (or welfare), and good government of a State. No doubt a law passed pursuant to s 51 may have an application in a territory, but that is not to the point.
In Nintendo Co Ltd v. Centronics Systems Pty Ltd [F84] , after referring to the principle of construction laid down in Attorney- General (Cth) v. Schmidt , it was said:
"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 [F85] ."
It is, I think, unnecessary to invoke the principle expressed in that passage, since on the view which I take s 51(xxxi) and s 122 do not collide. But even if they do, it is clear that s 122 manifests the contrary intention to which that passage makes reference. For it confers a complete and unqualified legislative power which is not expressed to be subject to the Constitution but which is situated in a chapter of the Constitution dealing with matters which are different from those dealt with in s 51. That power necessarily extends to the acquisition of property in any territory.
In Allders International Pty Ltd v. Commissioner of State Revenue (Vict) [F86] I expressed the view, to which I adhere, that since the power to tax conferred by s 51(ii) of the Constitution is subject to a safeguard which prevents its exercise so as to discriminate between States or parts of States, the power to tax is abstracted from the power over Commonwealth places conferred by s 52(i) of the Constitution. In making that suggestion, I referred to the comments of Dixon CJ in Attorney-General (Cth) v. Schmidt [F87] . The suggestion was, however, rejected as having no merit by McHugh, Gummow and Kirby JJ, with whom Gaudron J agreed. Their Honours referred to the separate and plenary nature of the power conferred by s 52(i) [F88] . But the powers conferred by s 52 are expressed to be conferred subject to the Constitution, are to be exercised for the peace, order, and good government of the Commonwealth, and confer power over Commonwealth places as a subject matter rather than as areas over which the Commonwealth enjoys political dominion [F89] . If the view is taken that s 52(i) prevails against the safeguard contained in s 51(ii), a fortiori s 122 must prevail against the safeguard contained in s 51(xxxi).
It is true that in Lamshed v. Lake [F90] Dixon CJ, with whom Webb and Taylor JJ agreed, said:
"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. But once the law is shown to be relevant to that subject matter it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs."
However, Dixon CJ in that passage must have been using the term "subject matter" in a very different sense from that in which it is used in relation to ss 51 and 52. Plainly the power of the Parliament under s 122 is not confined to particular heads as it is under ss 51 and 52 and to speak of subject matter in relation to s 122 can only be to point to the requirement of some territorial nexus such as has been said to exist in the case of a State legislature which has power to legislate for the peace, order, and good government of the State [F91] . However, it would be unusual for the legislative power of a State to be described as a power to make laws with respect to a subject matter, namely, the State, and, apart from any qualifications which may exist elsewhere in the Constitution, the legislative power conferred by s 122 with respect to the territories is no less than that possessed by the State legislatures in respect of the States [F92] .
In Lamshed v. Lake Dixon CJ was concerned to deny the proposition that the power to make laws for the government of any territory under s 122 is a power which is exercised by the Commonwealth Parliament in the capacity of a local legislature for the territory concerned. That was why he referred to the national Parliament of Australia as exercising power under s 122. However, in my view, the question is not the nature of the repository of the power but the nature of the power conferred upon it. In referring to the government of any territory as the subject matter of the power under s 122 and in concluding that any exercise of that power by the Parliament was on a national basis, Dixon CJ was treating s 122 as if it were the equivalent of a head of power under ss 51 or 52 so that it became a power to make laws for the peace, order, and good government of the Commonwealth with respect to territories. He had earlier expressed the same view in Australian National Airways Pty Ltd v. The Commonwealth [F93] where its effect was made even more apparent by his observation that the incidental power under s 51(xxxix) might be invoked in aid of the power under s 122 [F94] . Of course, if s 122 were to be viewed as unrestricted in terms of subject matter, albeit limited by a requirement of territorial nexus, there could be no call for any incidental power.
In Australian National Airways Pty Ltd v. The Commonwealth [F95] Latham CJ and Williams J expressed a view contrary to that held by Dixon J. They equated the power under s 122 to the power of a State legislature to make laws for the peace, order, and good government of the State and concluded that laws made under s 122 have a local rather than national application as do the laws of a State. Such a view was consistent with earlier decisions of the Court, in particular, Buchanan v. The Commonwealth [F96] and R v. Bernasconi [F97] .
In Lamshed v. Lake [F98] Dixon CJ's view prevailed in that s 10 of the Northern Territory (Administration) Act 1910 (Cth), which provided that trade, commerce and intercourse between the Northern Territory and the States should be absolutely free, was held, by the application of s 109 of the Constitution, to preclude the operation of an inconsistent State law. However, the only separate judgments which were delivered in Lamshed v. Lake were those of McTiernan, Williams and Kitto JJ. McTiernan J dissented due to the construction he placed on the statutory provision in question, and did not appear to accept the view of s 122 taken by Dixon CJ. Williams J, who also dissented, adhered to the view which he had expressed in Australian National Airways Pty Ltd v. The Commonwealth . Kitto J, a member of the majority, appeared to accept the line of reasoning adopted by Dixon CJ.
Yet in Spratt v. Hermes [F99] , whilst not questioning the result in Lamshed v. Lake , Kitto J departed from much of the reasoning which led to that result and returned to an approach more consistent with that adopted in Buchanan v. The Commonwealth and R v. Bernasconi . He pointed to the fact that the first five Chapters of the Constitution are concerned with the creation and working of a federation. When one reaches s 122 in Ch VI, he observed, there is a change to a fundamentally different topic [F100] :
"The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being 'a part of the Commonwealth' [F101] ."
Of course, Kitto J was aware that the term "Commonwealth of Australia" is capable of being used for more than one purpose and takes its meaning from its context [F102] . Clearly enough the expression comprehends the territories as well as the States in a territorial sense. Indeed, the powers in s 51 of the Constitution may support laws for the peace, order, and good government of the Commonwealth in their application in the territories, a point of some significance to which I shall return in a moment. But the territories are not part of the federation, involving as it does a division of power between the Commonwealth and the States, and that was what Kitto J had in mind in the passage quoted above.
He went on to question the application of certain provisions of Ch v. of the Constitution - ss 116 and 118 - to s 122 and said [F103] :
"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 authorise the Parliament to make what provision it will for every aspect and every organ of territory government".
To ss 116 and 118, I would add s 109. When that section says, as it does, that a law of the Commonwealth shall prevail over a law of a State where there is an inconsistency, it is not speaking of a law passed pursuant to s 122, but of a law passed for the peace, order, and good government of the Commonwealth. That was the view of Griffith CJ in R v. Bernasconi [F104] and I think that it is correct. But a different approach was taken by Dixon J in Australian National Airways Pty Ltd v. The Commonwealth and in Lamshed v. Lake , for to treat laws made under s 122 as operating upon a national scale necessarily involves the invocation of s 109. If a law made under s 122 operates territorially as does a law of a State, with an extraterritorial operation limited by the requirement of territorial nexus and the capacity to enforce it, it is not properly to be described as "a law of the Commonwealth" as those words appear in s 109. And in that situation there is no need for s 109, just as there is no need for a s 109 to resolve conflicts between laws of the States. Such conflicts are resolved either as questions of power or under the rules of private international law.
The difficulties inherent in the view expressed by Dixon J are apparent in the decision in Attorney- General (WA) v. Australian National Airlines Commission [F105] . The Court in that case was constrained to apply Lamshed v. Lake but, as appears from the dissenting judgment of Gibbs J [F106] , the breadth of the territories power when regarded as a power to make laws for the peace, order, and good government of the Commonwealth with respect to territories was such as to "elevate it to a position of importance, even dominance, which it cannot possibly have been intended to occupy in the Constitution". The majority, in my view, offered no answer to that dilemma, although it cannot be supposed that they intended to hold that any law having a beneficial effect in a territory falls within the power conferred by s 122.
There are, I think, other difficulties with the view expressed by Dixon J. On that view, for example, s 122 would justify a law which operated to acquire property in a State for territorial purposes. If that were so, there might be some ground for thinking that the power s 122 confers is limited by s 51(xxxi), if that were open as a matter of language. However, in my view, the Commonwealth has no power under s 122 to legislate to acquire land in a State to be used for territorial purposes any more than a State would have power to legislate to acquire land in another State to be used for the purposes of the first State. Such a law would, in either case, be beyond power.
It does not seem to me that the conflict between the earlier cases and the view ultimately adopted by Kitto J in Spratt v. Hermes on the one hand, and the view upon which the decisions in Lamshed v. Lake and Attorney- General (WA) v. Australian National Airlines Commission are based on the other, requires any choice to be made in this case. I should, however, regard the question as an open one, for, while Lamshed v. Lake and Attorney-General (WA) v. Australian National Airlines Commission stand, so also do the earlier cases, particularly R v. Bernasconi , which have never been overruled.
The answer in this case is arrived at more easily, for it is concluded by settled authority which is plainly correct. Section 51(xxxi) does not guarantee just terms for the acquisition of property from any State or person in the same way as, for example, s 80 guarantees that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Of course, R v. Bernasconi establishes that a law made under s 122 is not a law of the Commonwealth for the purposes of s 80, but that is not the point here. The point is that in prescribing just terms, s 51(xxxi) imposes a qualification upon the power to make laws with respect to the acquisition of property which that paragraph confers upon the Commonwealth Parliament. There being no doubt that the power to make laws under s 122 is without qualification in point of subject matter, that power necessarily comprehends an unqualified power to make laws with respect to the acquisition of property. There is no process which I am able to discern by which a qualification upon a power to make laws with respect to the acquisition of property can, as a matter of construction or otherwise, be imported as a qualification of an unlimited power which embraces the making of laws with respect to the same subject matter. Had the requirement of just terms been incorporated in the Constitution as a free-standing guarantee, the same questions may have arisen as arose in relation to s 80 in R v. Bernasconi . But the requirement of just terms contained in par (xxxi) is part of the description of the subject matter of the legislative power which that paragraph bestows. It is only in that way that it can be said to be a requirement at all and it forms no part of the description of the legislative power bestowed by s 122 which is entirely without limitation in terms of subject matter.
I would observe that this conclusion does not mean that people in the territories are not protected at all by s 51(xxxi). If a law which applies generally throughout the Commonwealth is invalid because it purports to acquire property otherwise than on just terms, it will be wholly invalid unless, as Windeyer J observed in Spratt v. Hermes [F107] , the law manifests an intention that it should operate as a law for the government of a territory even if invalid as a law for the peace, order, and good government of the Commonwealth. It is only if that intention may be discerned that the law will be seen to invoke s 122 and be valid. That is to say, it is only laws which may be seen as being laws for the government of a territory that are not subject to the limitation in s 51(xxxi). If this result is thought to be distasteful, it may be observed that laws for the peace, order (or welfare), and good government of a State are similarly unrestricted by s 51(xxxi). Of course, since it is the same organ - the Commonwealth Parliament - which may legislate for the government of any territory and for the peace, order, and good government of the Commonwealth, the practical scope of the protection contained in s 51(xxxi) is more limited in respect of the territories than it is in respect of the States. That, however, is no more than a consequence of the fact that there is no federal division of power which operates in the territories. Nevertheless, to say that s 122 is not limited by s 51(xxxi) is not to say that s 51(xxxi) can have no application in respect of laws which have an operation in the territories.
However, as I have said, it is quite plain that the relevant provisions of Pt II of the Act are intended to apply in the Northern Territory regardless of whether they are valid in their general application throughout the Commonwealth. Those provisions may be supported by s 122 of the Constitution and, in so far as they involve the acquisition of property, are not required to provide just terms. That is enough to dispose of this matter, for the entitlement of the appellants to the declaratory relief which they claim is dependent upon their establishing the invalidity of the relevant Proclamations and statutory provisions. Thus, the appellants rely on the invalidity of ss 7 and 10(1A) of the Act by reason of the absence of any provision for just terms. For the reasons given, the absence of any such provision does not affect the validity of those sections. In my view, the appellants fail in their appeal and the question whether the relevant Proclamations are invalid should be answered in the negative.