Kruger & Anors v Commonwealth

(1997) 190 CLR 1

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(Judgment by: Dawson J)

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

Court:

Judges: Brennan CJ

DawsonToohey
Gaudron
McHugh
Gummow JJ

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

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

Judgment date: 31 JULY 1997

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Judgment by:
Dawson J

The plaintiffs in these two matters are Aboriginal Australians who at the time of the events in question resided in the Northern Territory. Each of the first five plaintiffs in the first action and each of the plaintiffs in the second action complain that, when a child, he or she was "removed into and detained and kept in the care, custody and/or control of" the Chief Protector of Aboriginals of the Northern Territory or the Director appointed under the Aboriginals Ordinance 1918 (NT) ("the 1918 Ordinance") and thereafter kept in institutions or reserves away from his or her mother and family. The sixth plaintiff in the first action is alleged to be the mother of a child who was so treated. The first removal is alleged to have occurred in approximately 1925, the last in approximately 1949, and the last detention is said to have ended in 1960.

The plaintiffs contend that the 1918 Ordinance, to the extent that it authorised the actions complained of and the making of regulations empowering nominated officers to take the actions complained of, was beyond power and invalid. To the extent that Commonwealth statutes authorised the subordinate legislation (and the plaintiffs specify the Northern Territory Acceptance Act 1910 (Cth), the Northern Territory (Administration) Act 1910 (Cth) and the Northern Australia Act 1926 (Cth)), the plaintiffs say that those statutes were beyond power and invalid.

The basis upon which the plaintiffs allege invalidity is that the course of conduct of which they complain infringed certain constitutional rights or freedoms. Those rights or freedoms appear from par 29 of the amended statement of claim in the first action. It is there alleged of that course of conduct that:

"(i) A. it was contrary to an implied constitutional right to freedom from and/or immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth conferred in accordance with Ch III of the Constitution or of judicial power under laws of the Commonwealth;

B. it purported to confer judicial power of the Commonwealth -

(1)

on persons who were not appointed under or obliged or entitled to exercise the judicial power of the Commonwealth in accordance with Ch III of the Constitution or judicial power under laws of the Commonwealth;

(2)

other than on Courts established under or in accordance with Ch III of the Constitution or under laws of the Commonwealth;

(ii)

it was contrary to an implied constitutional right to and/or guarantee of legal equality including equality before and under, and equal protection of, the law, and in particular, laws of the Commonwealth and laws made pursuant to or under the authority of laws of the Commonwealth;

(iii)

it was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association;

(iv)

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

A. providing for or having a purpose, the effect or the likely effect of the destruction in whole or in part of a racial or ethnic group, or the language and culture of such a group;

B. subjecting the children of a racial or ethnic group, solely by reason of their membership of that group, to the legal disability of removal and detention away from the group; or

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

(i)

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

(ii)

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

(iii)

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

...

(vi)

it was a law for prohibiting the free exercise of a religion contrary to section 116 of the Constitution."

The plaintiffs also allege that the 1918 Ordinance and any laws authorising its enactment, to the extent that they authorised the conduct complained of, were not laws for the government of the Northern Territory. All of the laws have long since been repealed.

Brennan CJ, whilst recognising that, as a general rule, it is inappropriate to reserve any point of law for the opinion of the Full Court before a determination of the facts which evoke consideration of that point of law or of the facts on which the answer to the question reserved may depend, held that the manifest preponderance of convenience required such a course to be taken in these cases ^[F35] . He reserved a number of questions, but it is necessary for present purposes to set out only the first two of them because the need to answer the others depends upon an affirmative answer to those questions or one or other of them. The first two questions in the first action are:

"1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?

2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by -

(a)

an officer of the Commonwealth; or

(b)

a person acting for and on behalf of the Commonwealth;

gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"

The questions in the second action are not materially different.

Under s 122 of the Constitution, the parliament may make laws "for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth". The Northern Territory was surrendered to and accepted by the Commonwealth pursuant to an agreement with South Australia in 1907. That agreement was ratified and approved by the Northern Territory Acceptance Act 1910 (Cth). Pursuant to s 111 of the Constitution, the Northern Territory thereupon became, and remains, "subject to the exclusive jurisdiction of the Commonwealth".

Upon acquiring exclusive jurisdiction over the Northern Territory, the Commonwealth enacted the Northern Territory (Administration) Act 1910 (Cth). Section 13(1) of that Act empowered the Governor-General to make Ordinances having the force of law in the Northern Territory. Under s 13(2) and (3) Ordinances were required to be laid before the Houses of Parliament, either of which had the power of disallowance. Until 1947, the powers of the Governor- General remained essentially unchanged, although under the Northern Australia Act 1926 (Cth) the Northern Territory was divided into two territories (known as North and Central Australia) which were separately administered. In 1947 the Northern Territory (Administration) Act 1947 (Cth) amended the earlier Act of the same name to create a legislative council for the Northern Territory. A new section, s 4U, provided that "[s]ubject to this Act, the Council may make Ordinances for the peace, order and good government of the Territory." Further sections were added which provided that such Ordinances had no effect until assented to by the Administrator of the Northern Territory according to his discretion ^[F36] , and that the Governor-General had power to disallow any Ordinance within six months of the Administrator's assent ^[F37] . The Administrator was not to assent to any Ordinance relating to "aboriginals or aboriginal labour" unless the Ordinance contained a clause suspending its operation until the signification of the Governor-General thereon ^[F38] .

It was pursuant to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) that the Governor- General made the 1918 Ordinance. The Ordinance was amended by the Governor- General before 1947 and by the legislative council after 1947 but little appears to turn on these amendments. The Ordinance was repealed by the Welfare Ordinance 1953 (NT), with effect from 13 May 1957. Whilst the plaintiffs also complain of regulations made under the regulation-making power in the 1918 Ordinance ^[F39] , it became clear in oral argument that their attack was upon ss 6, 7 and 16 of the 1918 Ordinance itself. Because, save possibly for s 7, no significance for present purposes attaches to the amendments to the 1918 Ordinance, it is convenient to deal with its provisions as they originally stood.

Section 6(1) provided:

"The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody."

The section went on in sub-ss (2) and (3) to require persons upon whose premises an Aboriginal or "half-caste" ^[F40] was present to facilitate his being taken into custody and to allow the powers of the Chief Protector to be exercised whether the Aboriginal or "half-caste" was under a contract of employment or not.

Section 7 provided:

"(1) The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of the Act of the State of South Australia in force in the Northern Territory entitled The State Children Act 1895, or any Act of that State or Ordinance amending or substituted for that Act.

(2) Every Protector shall, within his district, be the local guardian of every such child within his district, and as such shall have and may exercise such powers and duties as are prescribed."

Section 7 was repealed by s 7 of the Aboriginals Ordinance (No 2) 1953 (NT) and replaced with the following:

"The Director is the legal guardian of all aboriginals."

Section 16 provided:

"(1) The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.

(2) Any aboriginal or half-caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance.

(3) Sub-section (1) of this section shall not apply to any aboriginal or half-caste -

(a)

who is lawfully employed by any person; or

(b)

who is the holder of a permit to be absent from the reserve or aboriginal institution in question; or

(c)

who is a female lawfully married to and residing with a husband who is substantially of European origin or descent; or

(d)

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

Part III of the 1918 Ordinance established a system of aboriginal reserves and institutions and the effect of ss 6, 7 and 16, particularly s 16, was to enable the Chief Protector to place Aboriginals in those reserves or institutions, if necessary against their will, and thereby to restrict their freedom of movement. Moreover, under s 11 of the 1918 Ordinance, the Administrator could declare any place to be a prohibited area so that it would be an offence for an Aboriginal or "half- caste" to be or remain within it. It was in purported exercise of the powers conferred by these provisions that the events of which the plaintiffs complain took place. However, s 6 made it clear that the powers of the Chief Protector under that section were to be exercised in the interests of Aboriginals and "half-castes" and whilst s 16 did not contain any explicit requirement that the powers which it conferred were to be exercised for the welfare of Aboriginals or "half-castes", it is clear enough that it was so circumscribed. In Waters v. The Commonwealth ^[F41] , Fullagar J described the powers of the Director (as they had then become) under s 16 as "vast" and as likely to be exercised over those who are "weak and helpless". His Honour continued:

"He must often act on his own opinion in circumstances of difficulty, and no court can substitute its opinion for his. But, on the other hand, the courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed."

Fullagar J was of the view that under s 6 of the 1918 Ordinance the welfare of the Aboriginal concerned may have been the sole consideration, but that under s 16 it was not the only legitimate consideration ^[F42] . It was his Honour's view that under that section the Director was entitled to have regard, not only to the welfare of the particular Aboriginal, but also to "the welfare of other aboriginals and the general interests of the community in which the particular aboriginal dwells" ^[F43] .

The precise scope of s 7 in constituting the Chief Protector (and then the Director) the legal guardian of Aboriginals is far from clear as was recognised by the Supreme Court of the Northern Territory in Ross & Ors v. Chambers ^[F44] . In that case Kriewaldt J expressed the view that the guardianship for which the section provided could not, as regards adult Aboriginals, embrace all the incidents which normally attach to the relationship of guardian and ward. However, it does not appear that anything turns upon that point in these cases.

The predecessor to the 1918 Ordinance was the Northern Territory Aboriginals Act 1910 (SA) which was continued in force by s 7 of the Northern Territory Acceptance Act 1910 (Cth) until repealed by the 1918 Ordinance. In relevant respects the 1918 Ordinance does not differ from the Act which it repealed. That Act was prompted by the plight of Aboriginals in the Northern Territory who were said to be "rapidly decreasing through disease, neglect, and insanitary conditions" ^[F45] . The 1918 Ordinance would appear to have been motivated by similar concerns. The measures contemplated by the legislation of which the plaintiffs complain would appear to have been ill-advised or mistaken, particularly by contemporary standards. However, a shift in view upon the justice or morality of those measures taken under an Ordinance which was repealed over 40 years ago does not of itself point to the constitutional invalidity of that legislation and it is to the legal basis of the plaintiffs' claims that I now must turn. The legal basis of those claims concerns the constitutional validity of the provisions in issue, and does not raise the question whether the actions complained of were authorised by those provisions.

Section 122

Section 122 of the Constitution provides:

"The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."

The 1918 Ordinance was made under legislation which was reliant upon s 122 for its validity. The plaintiffs claim that, to the extent that it authorised the making of the 1918 Ordinance, or at least those parts of it of which they complain, the legislation did not constitute a law "for the government of any territory" within the meaning of s 122 and was invalid. The basis upon which they make that submission is that for a law to be for the government of a territory it must be reasonably capable of being seen as appropriate and adapted to the end of governing the territory. The plaintiffs argue that the 1918 Ordinance constituted an extraordinary intrusion upon fundamental rights and common law liberties, exhibiting "such callous disregard for familial unity and cultural cohesion in the Aboriginal community" that its purpose can only be seen as the arbitrary executive detention of Aboriginal citizens and the cultural and physical extinguishment or disintegration of that racial minority. The plaintiffs submit that such a law cannot be seen as appropriate and adapted to the government of the Northern Territory and for that reason is outside the scope of s 122.

That submission must be rejected. I have elsewhere expressed my view that no real assistance is to be gained by asking whether legislation is appropriate and adapted to some end when testing its validity under s 51 of the Constitution, at all events where a non- purposive power under that section is involved ^[F46] . That test can have even less application where the power in question is, like s 122, a power to legislate for the government of a territory and where, unlike the powers conferred by s 51, the power is not confined by reference to subject matter. In Teori Tau v. The Commonwealth ^[F47] the Court described the legislative power conferred by s 122 as "plenary in quality and unlimited and unqualified in point of subject matter". That statement was approved by the whole Court in Northern Land Council v. The Commonwealth ^[F48] . It is in accordance with the view expressed by Barwick CJ in Spratt v. Hermes ^[F49] where he 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."

And in Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F50] Brennan, Deane and Toohey JJ described the power as "no less than the power which would have been conferred if the 'peace, order and good government' formula had been used". The result is that "all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connection between the law and the Territory" ^[F51] . There can be no doubt of the existence of that nexus or connection in this case.

It is true that in Lamshed v. Lake ^[F52] Dixon CJ appears to have thought that s 122 may be viewed as conferring a power to legislate with respect to a subject matter. He said that it "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". He continued: "The words 'the government of any territory' of course describe the subject matter of the power." Perhaps Dixon CJ was there using the expression "subject matter" in a different sense. If, as is incontrovertible, the power of the Parliament to legislate under s 122 is not confined to particular heads as it is under s 51, to speak of subject matter in that context can only be to advert 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 ^[F53] . Nevertheless, it is unusual for the legislative power of a State to be described as a power with respect to a subject matter, namely, the State, and, setting to one side such qualifications as may possibly be found elsewhere in the Constitution, the scope of the legislative power conferred upon the Parliament by s 122 with respect to the territories is no less than that possessed by the State legislatures with respect to the States. As Mason J said in Berwick Ltd v. Gray ^[F54] , it is:

"a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development. It is sufficiently wide to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate territorial administrative institutions ... yet on the other hand it is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions".

The Commonwealth Parliament is, with respect to the territories, a completely sovereign legislature ^[F55] .

However, it seems clear that Dixon CJ had something else in mind when he spoke of the power under s 122 as being a legislative power with respect to a subject matter. The view which Dixon CJ expressed in Lamshed v. Lake first appeared in Australian National Airways Pty Ltd v. The Commonwealth ^[F56] . There he indicated that in his opinion s 122 extended beyond conferring power to make laws for the government of a territory as a geographical or local unit and conferred power to legislate upon a national basis with respect to territories. It was in that sense that he viewed territories as the subject matter of a legislative power, apparently thinking that it was impossible to regard the national Parliament as being confined, even in relation to a territory, to the making of laws with only a local application. That is why in the passage in Lamshed v. Lake to which I have already referred he used, and placed emphasis upon, the term "national Parliament". He did so in order to reject an argument that the legislative function which s 122 confers upon the Parliament is essentially that of a local legislature in and for a territory with a power territorially restricted to the territory. The latter was a view which had been accepted by Latham CJ and Williams J in Australian National Airways Pty Ltd v. The Commonwealth ^[F57] and was consonant with the earlier cases of Buchanan v. The Commonwealth ^[F58] and R v. Bernasconi ^[F59] . The view expressed by Dixon CJ would seem, with respect, to beg the question by referring to the Parliament in the context of s 122 as the "national Parliament", for in speaking of the power to make laws for the government of any territory, s 122 is referring to the government of a geographical unit and not of the nation as a whole. Moreover, the view taken by Dixon CJ in Lamshed v. Lake regards the power conferred by s 122 as if it were the equivalent of a head of power under s 51 so that it becomes a power to make laws for the peace, order and good government of the Commonwealth with respect to territories. In accordance with this view, Dixon J in Australian National Airways Pty Ltd v. The Commonwealth ^[F60] thought that the incidental power under s 51(xxxix) might be invoked in aid of the power under s 122. Section 122 is not, however, expressed in the same terms as s 51 and is not made subject to the Constitution, as is s 51.

The only separate judgments, other than that of Dixon CJ, 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.

However, in Spratt v. Hermes ^[F61] Kitto J recanted the opinion he had expressed in Lamshed v. Lake . He pointed out that the first five chapters of the Constitution are concerned with working out the federal compact and belong to "a special universe of discourse". When one comes to Ch VI and s 122 "a fundamentally different topic is perceived". To Kitto J the change was "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'." Of course, as Kitto J recognised, in some senses a territory is part of the Commonwealth, but that term is of variable meaning and where it is used to describe the federation of States, a territory lies outside its concept. Kitto J continued ^[F62] :

"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 ^[F63] , 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 authorise 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 ^[F64] , 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 ^[F65] , but with 'a disparate non- federal matter' as Viscount Simonds called it in Attorney-General of the Commonwealth of Australia v. The Queen ^[F66] ."

The difficulties to which Kitto J adverted were not considered in Attorney-General (WA) v. Australian National Airlines Commission ^[F67] . Lamshed v. Lake was applied in that case but, although the majority may not have intended as much, the result of its application appears to suggest that any law having a beneficial effect in a territory falls within the power conferred by s 122. Gibbs J ^[F68] , in dissent, was provoked to remark that to give s 122 such an operation would "elevate it to a position of importance, even dominance, which it cannot possibly have been intended to occupy in the Constitution", an observation which went unanswered in the majority judgments.

Whilst the judgment of Kitto J in Spratt v. Hermes does not reject the result in Lamshed v. Lake , much of his reasoning is inconsistent with the reasoning which led to that decision. Lamshed v. Lake , and the later decision in Attorney-General (WA) v. Australian National Airlines Commission , stand, of course, as authorities of this Court, but it is possible at the same time to question whether they require the conclusion that Ch v. of the Constitution has any application to the territories. Kitto J doubted whether ss 116 and 118 had any such application and they, along with s 109, are the only sections of Ch v. that could possibly do so, because the other sections are confined to the States in express terms.

The application of s 118 to the territories would involve a somewhat curious construction. That section requires full faith and credit to be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. It is, of course, possible to apply s 118 to the territories but to do so immediately raises the question why, if it was intended to apply to them, full faith and credit should not have been required to be accorded in the States to the laws, etc, of the territories. The answer, upon the view expressed by Dixon CJ, is that it was unnecessary because territory laws are national laws. But the more convincing answer is that the territories do not enter the province of Ch v. which is, after all, headed "The States". A construction of s 118 which required that full faith and credit be given in the territories to the laws, etc, of every State would rob that section of the mutuality or reciprocity it was obviously intended to have, for on no construction could s 118 require that full faith and credit be given in the States to the laws, etc, of the territories ^[F69] .

Similarly, s 109, which deals with inconsistency between State and Commonwealth laws, would appear to be dealing with inconsistency between State and federal laws and not to have in contemplation inconsistency between State and territory laws. And if, contrary to Lamshed v. Lake , territory laws were confined to a territorial operation there would be no more need for a s 109 in relation to territory laws than there is need for such a section to resolve conflict between the laws of different States.

Section 116

When one comes to s 116 different considerations apply. That section provides:

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

Various views have been expressed about the character of s 116 and its application to the legislative power of the Commonwealth under s 122 ^[F70] . However, there has been no real examination of the question or any attempt to reconcile the existing authorities, save perhaps in the judgment of Gibbs J in Attorney- General (Vict); Ex rel Black v. The Commonwealth ^[F71] . Gibbs J expressed his doubts, notwithstanding dicta to the contrary, whether s 116 had any application to laws made under s 122. He pointed out that the dicta are very difficult to reconcile with the decision in R v. Bernasconi ^[F72] and that if s 122 is limited by s 116, the latter section will have a much larger operation in the territories than in the States since s 116 is not expressed to bind the States.

In R v. Bernasconi it was held that s 80 of the Constitution, which requires the trial on indictment of any offence against "any law of the Commonwealth" to be by jury, does not restrict the power of the Commonwealth to make laws under s 122. Section 80 is to be found in Ch III of the Constitution dealing with "The Judicature". Griffith CJ said ^[F73] :

"In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories. Sec 80, therefore, relates only to offences created by the Parliament by Statutes passed in the execution of those functions, which are aptly described as 'laws of the Commonwealth.' The same term is used in that sense in sec 5 of the Constitution Act itself, and in secs 41, 61 and 109 of the Constitution. In the last mentioned section it is used in contradistinction to the law of a State. I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a State."

Isaacs J said of s 80 ^[F74] :

"But the provision 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 ^[F75] , but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power."

Gavan Duffy and Rich JJ adopted the view of Griffith CJ.

R v. Bernasconi was not overruled in Lamshed v. Lake nor in any other decision of this Court. Its reasoning is plainly inconsistent with a great deal that was said in Lamshed v. Lake but there is much that is open to doubt in the latter decision as was recognised by Kitto J in Spratt v. Hermes . There is even more that is open to doubt in Attorney-General (WA) v. Australian National Airlines Commission . Section 80 imposes a requirement upon the Commonwealth in what would appear to be absolute terms, as does s 116. Section 80 appears in Ch III in general terms. Section 116 appears in Ch v. which, at least by its heading, is confined in its application to the States. In my opinion, what was said of s 80 in R v. Bernasconi applies a fortiori to s 116. I do not think that it is possible while R v. Bernasconi stands to hold that s 116 restricts s 122. Nor do I think that the reasoning in Lamshed v. Lake is necessarily to be preferred to that in R v. Bernasconi .

The explanation why s 116, unlike the other sections in Ch V, is directed to the Commonwealth is that ultimately the matter with which those responsible for its drafting were concerned was the possibility that, because of the reference to "Almighty God" in the preamble to the Constitution, there might be a perception that the Commonwealth had the power to interfere in matters of religion. The clause which eventually became s 116 was originally drafted to include the States, but in order to emphasise the prohibition imposed upon the Commonwealth, the States were excluded. The amendment in that form was moved by Mr Higgins who said ^[F76] :

"My idea is to make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights to the states where they are, to leave the existing law as it is."

The appearance of s 116 in a chapter headed "The States" has often been regarded as anomalous, but in fact the section deals with the division of legislative power between the Commonwealth and the States within the federation. There is no suggestion of any desire to extend the restriction imposed upon Commonwealth federal power to the "disparate and non-federal matter" ^[F77] dealt with in s 122. The States are not precluded by s 116 from doing those things which the Commonwealth is prohibited from doing and there is no reason to suppose that the Commonwealth was to be inhibited in a way in which the States are not in its capacity to legislate for the government of any territory.

For these reasons, I am of the opinion that the power of the Commonwealth Parliament to legislate under s 122 for the government of the territories is not restricted by s 116. I should add that, if I am wrong in that conclusion, I would agree with Gummow J, for the reasons given by him, that the 1918 Ordinance contains nothing which would enable it to be said that it is a law for prohibiting the free exercise of any religion.

Due Process of Law and the Judicial Power of the Commonwealth

In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power ^[F78] . Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the 14th Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws ^[F79] . The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law. The few provisions contained in the Constitution which afford protection against governmental action in disregard of individual rights do not amount to such a general guarantee ^[F80] . It follows that, in so far as the plaintiffs' claim is reliant upon a constitutional right to the due process of law, it must fail.

The plaintiffs contend that the actions of which they complain amounted to the exercise of judicial power otherwise than by courts constituted in accordance with Ch III of the Constitution and hence could not be validly authorised by the 1918 Ordinance. That contention is dependent upon acceptance of the view that the removal and detention of Aboriginal children pursuant to the powers conferred by the 1918 Ordinance were of a penal character and hence constituted judicial rather than executive functions. It is by no means apparent that this view can be sustained. However much one may with hindsight debate the appropriateness of the actions authorised by the 1918 Ordinance, those actions may legitimately be seen as non-punitive ^[F81] . The Chief Protector (and then the Director) was the legal guardian of Aboriginals and that position, although its precise scope was uncertain, clearly imposed an obligation to act in the interests of the Aboriginal community but did not involve the performance of judicial functions. No relevant decision could legitimately be taken under the 1918 Ordinance without regard to the interests of Aboriginals involved and those of the wider Aboriginal population. No doubt it may be said with justification that the events in question did not promote the welfare of Aboriginals, but that does not mean that the decisions made and the actions taken were of a judicial rather than an executive character.

However, this aspect of the plaintiffs' claim must fail even assuming that which is not apparent, namely, that those decisions or actions were of a judicial rather than an executive character. Chapter III of the Constitution does, of course, require the separation of the judicial power of the Commonwealth from its executive and legislative functions ^[F82] . The judicial power of the Commonwealth may only be exercised by federal courts constituted in accordance with the requirements of Ch III and State courts which are invested with federal jurisdiction. Federal courts may only perform judicial functions and such other functions as are ancillary to the exercise of judicial power. But the judicial power exercised in the territories is not the judicial power of the Commonwealth within the meaning of Ch III. Courts created under s 122 are not federal courts nor do they exercise federal jurisdiction. They are not required to be constituted in accordance with Ch III and, since it is from the terms of Ch III and the position which it occupies in the constitutional structure that the requirement of a separation of powers flows, it follows that that doctrine has no application in the territories ^[F83] . The consequence is that, even if the decisions or actions taken under the 1918 Ordinance were of a judicial rather than an executive character, no requirement of the Constitution would have been infringed.

Legal Equality

The plaintiffs contend that by implication the Constitution guarantees legal equality before and under the law. There is reason to think that such a guarantee, if it existed, would not prevail against the legislative power conferred by s 122, but it is convenient to proceed directly to the question whether any such implication can be made.

The separation of judicial power from the other powers of government precludes the legislature from investing a court created by or under Ch III of the Constitution with non-judicial powers that are not ancillary but are directed to some non-judicial purpose. A Ch III court cannot be made to perform a function which is of a non- judicial nature or is required to be performed in a non-judicial manner. Chapter III may, perhaps, be regarded in this way as affording a measure of due process, but it is due process of a procedural rather than substantive nature. As was pointed out in Leeth v. The Commonwealth ^[F84] , "to speak of judicial power in this context is to speak of the function of a court rather than the law which a court is to apply". However, for the reasons which I have already given, the plaintiffs are unable to resort to the separation of powers so far as the territories are concerned and in any event their argument goes much further than the requirements of Ch III in asserting a guarantee of equality before and under the law.

The plaintiffs encounter difficulty at the outset by reason of the decision of this Court in Leeth . In that case, a majority (Mason CJ, Brennan J, McHugh J and myself) held that a law of the Commonwealth which did not operate uniformly throughout the Commonwealth was not in breach of any constitutional requirement. Deane and Toohey JJ, and Gaudron J in a separate judgment, held the law to be invalid but they were in a minority in so doing. Nevertheless, the plaintiffs base their argument upon the line of reasoning adopted by Deane and Toohey JJ in their joint judgment.

It is true that Deane and Toohey JJ found a doctrine of legal equality in the Constitution, but the reasoning which led to that conclusion did not commend itself to other members of the Court nor, with the greatest of respect, does it now commend itself to me. An analogy for the doctrine of equality was, it was said, to be discerned in the implied prohibition against Commonwealth legislation which discriminates against the States or subjects them or their instrumentalities to special burdens or disabilities. It would be surprising, it was suggested, if the Constitution "embodied a general principle which protected the States and their instrumentalities from being singled out by Commonwealth laws for discriminatory treatment but provided no similar protection of the people who constitute the Commonwealth and the States" ^[F85] . With respect, I do not find that situation surprising at all. The limitation upon the powers of the Commonwealth Parliament which prevent it from discriminating against the States is derived from different considerations entirely, which were articulated by Dixon J in Melbourne Corporation v. The Commonwealth ^[F86] when he said:

"The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities."

That principle does not spring from any notion of equality. Moreover the Constitution is in many respects inconsistent with a doctrine of legal equality.

Section 51 (xxvi), as Deane J recognised in The Tasmanian Dam Case ^[F87] , "remains a general power to pass laws discriminating against or benefiting the people of any race". Similarly, s 51(xix) enables the Commonwealth Parliament to make laws which discriminate in favour of or against aliens. Discrimination in relation to the qualification to vote in federal elections is clearly envisaged by the Constitution ^[F88] and equality of voting power is not guaranteed ^[F89] . And until 1967 (which is after the last alleged act of detention ended), ss 51(xxvi) and 127 excluded Aboriginals for specified purposes. It is unnecessary to provide an exhaustive list of those respects in which the Constitution does not support the suggested doctrine of equality, for Deane and Toohey JJ recognised in Leeth that "the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorised by the relevant provision of the Constitution" ^[F90] or may need to be "adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate" ^[F91] . To recognise as much is surely to undermine any basis for asserting that the Constitution assumes a doctrine of equality.

Not only that, but where the Constitution requires equality it does not leave it to implication. It makes provision for it by prohibiting discrimination, preference or lack of uniformity in specific instances. For example, the power of the Commonwealth Parliament to make laws with respect to taxation conferred by s 51(ii) must not be exercised so as to discriminate between States or parts of States. Section 88 provides for uniform customs duties and s 51(iii) provides for uniform bounties. Section 92, in requiring trade, commerce and intercourse among the States to be absolutely free, prohibits discrimination of a protectionist kind. Section 99 forbids the Parliament to give preference to one State or any part thereof over another State or any part thereof by any law or regulation of trade, commerce or revenue. And s 117 provides that a subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. In Leeth , Deane and Toohey JJ said that the existence of these specific provisions "which reflect the doctrine of legal equality serves to make manifest rather than undermine the status of that doctrine as an underlying principle of the Constitution as a whole" ^[F92] . That statement not only denies the accepted canon of construction expressed in the maxim expressio unius , exclusio alterius ; it turns it on its head. And as one commentator has observed ^[F93] :

"If various provisions aimed at preventing discrimination, preference and lack of uniformity are merely reflections of a general principle of equality, it can be similarly reasoned that the specific powers given to the Commonwealth Parliament are merely examples of a general principle, mentioned from time to time by delegates, that the Commonwealth Parliament was to be given power over all subjects which could not be as effectively dealt with by the States."

The inappropriateness of the expressio unius maxim arose, in their Honours' view, from what was said to be the "ordinary approach of the Constitution not to spell out the fundamental common law principles upon which it is structured" ^[F94] because "the general approach of the framers of the Constitution ... was to incorporate underlying doctrines or principles by implication" ^[F95] . With respect, that is not the case. Guarantees of equality before the law and due process were specifically rejected, not because they were already implicit and therefore unnecessary, but because they were not wanted. Indeed, if there was a need to make specific provision for equality where that was intended, it would suggest that there is no principle of equality underlying the Constitution and that were such a doctrine intended, specific provision would have been made for it. But to be fair to Deane and Toohey JJ, they did not, I think, base a doctrine of equality principally upon the existence of these specific provisions. They referred to considerations of a more fundamental kind.

The ultimate source of the doctrine was said to lie in the common law. Thus Deane and Toohey JJ said ^[F96] :

"The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalises. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government."

However, whilst the rule of law requires the law to be applied to all without reference to rank or status, the plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-discriminatory, operation of laws. It is not possible, in my view, to dismiss the discriminatory treatment of women at common law or such matters as the attainder of felons ^[F97] as "past anomalies". To do so is to treat the doctrines of the common law with selectivity. Moreover, the supremacy of parliament, which is itself a principle of the common law ^[F98] , necessarily leaves the common law subject to alteration without reference to notions of equality. The common law thus provides no foundation for a doctrine of equality, at all events substantive equality as opposed to the kind of procedural equality envisaged by the rule of law.

But even if a doctrine of substantive equality were discernible in the common law, it would not appear that it was a doctrine which was adopted in the drafting of the Constitution. Apart from anything else, it is clear that the Commonwealth Parliament was intended to have the capacity, in the exercise of its legislative powers, to alter the common law. If it were not so, the scope of those powers would be less than the scope of the concurrent powers of the States. There is no reason to suppose that such a capacity would not extend to a common law doctrine of equality if such a doctrine were to exist. Nevertheless, in Leeth Deane and Toohey JJ expressed the view that such a doctrine had been adopted in the Constitution by necessary implication by reason of its conceptual basis and because it is "implicit in the Constitution's separation of judicial power from legislative and executive powers and the vesting of judicial power in designated 'courts'" ^[F99] .

In referring to the conceptual basis of the Constitution, Deane and Toohey JJ had in mind the preamble and covering cl 3 of the Commonwealth of Australia Constitution Act which refer to the agreement of the people of the various colonies to unite in a Federal Commonwealth. Their Honours took the view ^[F100] that "[i]mplicit in that free agreement was the notion of the inherent equality of the people as the parties to the compact." It may be observed that a degree of equality was lacking in the free agreement of which their Honours spoke, in that the referendum expressing that agreement excluded most women and many Aboriginals. But the important thing is that the Constitution to which the people agreed plainly envisages inequality in the operation of laws made under it. Moreover, those who framed the Constitution deliberately chose not to include a provision guaranteeing due process or the equal protection of the laws and it was with those omissions that the people agreed to the Constitution. It is not possible, in my view, to read into the fact of agreement any implications which do not appear from the document upon which agreement was reached. Not only does a doctrine of equality in the operation of laws made under the Constitution not appear from the Constitution, but the very basis upon which it was drafted was that matters such as that were better left to parliament and the democratic process.

The view taken of Ch III of the Constitution by Deane and Toohey JJ was as follows ^[F101] :

"Thus, in Ch III's exclusive vesting of the judicial power of the Commonwealth in the 'courts' which it designates, there is implicit a requirement that those 'courts' exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds."

As I read that passage, it does not draw any distinction between procedural equality and substantive equality, that is to say, between procedural equality and the equality of laws in their operation. As I have said, it is possible to regard the separation of judicial power from the other powers of government as affording a measure of due process but it is due process of an essentially procedural rather than a substantive kind. What is clear is that Ch III says nothing, either expressly or by implication, requiring equality in the operation of laws which courts created by or under that Chapter must administer. Those courts have an obligation to administer justice according to law. No doubt that duty is to do justice according to valid law, but Ch III contains no warrant for regarding a law as invalid because the substantive rights which it confers or the substantive obligations which it imposes are conferred or imposed in an unequal fashion. The passage which I have reproduced appears to me to contemplate a guarantee of what American jurisprudence calls substantive due process, but that conception is not to be found in Ch III or elsewhere in the Australian Constitution.

For these reasons, I would respectfully reject the conclusion reached by Deane and Toohey JJ that there is a doctrine of equality to be found by implication in the Constitution. For the same reasons I would reject the plaintiffs' claim based upon that doctrine. I would affirm the proposition contained in the judgment of Mason CJ, McHugh J and myself in Leeth ^[F102] that there is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth.

Freedom of Movement and Association

In attacking the validity of the 1918 Ordinance, the plaintiffs rely upon an implied constitutional right to, or guarantee of, freedom of movement and association for political, cultural and familial purposes and say that, in authorising the removal and detention of Aboriginals, the 1918 Ordinance denied that right or offended against that guarantee.

To the extent that the right or guarantee which is asserted is founded upon an implied right to freedom of communication for political purposes, it is now established ^[F103] that such protection as the Constitution affords to freedom of communication is relevantly derived from the requirement that members of the Commonwealth Parliament be directly chosen by the people at periodic elections ^[F104] . The choice envisaged in each instance is a true or genuine choice

with "an opportunity to gain an appreciation of the available alternatives" ^[F105] . That requires freedom of communication about those matters which may properly influence the outcome of those elections. Laws which purport to inhibit that freedom of communication will be inconsistent with the requirements of the Constitution and invalid. If there is an implication it is not of any "right" and is of a negative kind. It precludes laws which would inhibit the required freedom of communication. The freedom owes its existence to the absence of laws curtailing it and it is reinforced by the restriction upon legislative power.

The freedom of communication protected by the Constitution relevantly arises from the system of representative government for which the Constitution specifically provides. In Australian Capital Television Pty Ltd v. The Commonwealth McHugh J observed ^[F106] :

"There is nothing in s 122 or anywhere else in the Constitution which suggests that laws made by the Commonwealth for the government of a territory are subject to prohibitions or limitations arising from the concepts of representative government, responsible government or freedom of communication."

I respectfully agree with that observation and would extend its application to such other rights to freedom of movement and association as may be suggested as constitutional requirements. I have in mind, in particular, the suggestion made by Griffith CJ and Barton J in R v. Smithers; Ex parte Benson ^[F107] that there is a right of access to the seat of government ^[F108] . Of course, s 92 of the Constitution restricts its guarantee of freedom of intercourse to intercourse among the States ^[F109] . I also have in mind the suggestion of Gaudron J in Australian Capital Television Pty Ltd v. The Commonwealth ^[F110] that "[t]he notion of a free society governed in accordance with the principles of representative democracy may entail freedom of movement [and] freedom of association". In any event, that suggestion appears to be based on the nature of our society, which to my mind cannot legitimately be used as a source of constitutional implications ^[F111] .

No system of government, elected or otherwise, is prescribed for the territories. Sovereign legislative power is conferred by s 122 upon the Commonwealth Parliament to make laws for the government of the territories but there need be no representation of a territory in either House of the Parliament, nor is there any requirement that institutions of representative government exist within the territories. There is nothing to be found in the Constitution which would support an implied constitutional right to, or guarantee of, freedom of movement and association for political or other purposes that might limit the powers conferred by s 122. This aspect of the plaintiffs' claim must fail.

Fundamental Rights and Genocide

In this part of their claim the plaintiffs invoke international law and, in particular, the Convention on the Prevention and Punishment of the Crime of Genocide ("the Genocide Convention"). The Genocide Convention was ratified by Australia on 8 July 1949 and entered into force on 12 January 1951. The 1918 Ordinance therefore pre-dates it by more than three decades. The Genocide Convention Act 1949 (Cth) gave parliamentary approval to the ratification by Australia of the Genocide Convention, but there is no legislation implementing the Genocide Convention in this country.

The definition of "genocide" in the Genocide Convention is as follows:

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

(a)

Killing members of the group;

(b)

Causing serious bodily or mental harm to members of the group;

(c)

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)

Imposing measures intended to prevent births within the group;

(e)

Forcibly transferring children of the group to another group."

The first thing that may be said is there is nothing in the 1918 Ordinance, even if the acts authorised by it otherwise fell within the definition of genocide, which authorises acts committed with intent to destroy in whole or in part any Aboriginal group. On the contrary, as has already been observed, the powers conferred by the 1918 Ordinance were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally. The acts authorised do not, therefore, fall within the definition of genocide contained in the Genocide Convention.

In any event, the Convention has not at any time formed part of Australian domestic law. As was recently pointed out in Minister for Immigration and Ethnic Affairs v. Teoh ^[F112] , it is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Where such provisions have not been incorporated they cannot operate as a direct source of individual rights and obligations. However, because of a presumption that the legislature intends to give effect to Australia's obligations under international law, where a statute or subordinate legislation is ambiguous it should be construed in accordance with those obligations, particularly where they are undertaken in a treaty to which Australia is a party ^[F113] . Such a construction is not, however, required by the presumption where the obligations arise only under a treaty and the legislation in question was enacted before the treaty, as is the situation in the present case.

On the other hand, there is another principle that legislation is to be interpreted and applied, so far as its language admits, in accordance with established rules of international law ^[F114] . It was suggested in Teoh ^[F115] that perhaps the two principles should be merged so as to require courts to favour a construction, to the extent that the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. The rule as so stated would still admit of an exception, logically necessary, where the relevant obligations are under a treaty which had not been entered into at the time the legislation came into force.

Presumably for this reason, the plaintiffs rely principally upon a pre-existing rule of international law involving a prohibition upon genocide, rather than upon the provisions of the treaty. Even assuming the existence of such a rule, it is to my mind not possible to conceive of any acceptable definition of genocide which would embrace the actions authorised by the 1918 Ordinance, given that they were required to be performed in the best interests of the Aboriginals concerned or of the Aboriginal population. But more importantly, the applicable principle amounts to no more than a canon of construction and reading the relevant provisions of the 1918 Ordinance in a manner which is consistent with a rule of international law prohibiting genocide would yield no different result from reading those provisions, as Fullagar J did in Waters v. The Commonwealth ^[F116] , in their particular context. It certainly would not invalidate those provisions of the 1918 Ordinance which purportedly authorised the acts of which the plaintiffs complain.

But the plaintiffs say that it is beyond the constitutional power of the Commonwealth Parliament to authorise acts of genocide, in which they include acts of "cultural genocide", and hence those parts of the 1918 Ordinance which authorise such acts are beyond power and invalid. As I have said, in my view nothing which appears in the 1918 Ordinance confers authority to commit acts of genocide within the meaning of the Genocide Convention. The Genocide Convention is not concerned with cultural genocide, references to cultural genocide being expressly deleted from it in the course of its being drafted ^[F117] , but whatever the form of genocide which the plaintiffs assert was authorised by the 1918 Ordinance, it cannot be said that the provisions of the 1918 Ordinance were beyond the sovereign power of the Parliament to enact laws under s 122 for the government of the territories.

The plaintiffs' submission amounts to an argument that there are some rights at common law which are so fundamental that it is beyond the sovereign power of parliament to destroy them. It is an argument which would seek to avail itself of the reservation expressed by this Court in Union Steamship Co of Australia Pty Ltd v. King ^[F118] when, having recognised that the words "for the peace, order and good government" contained in a grant of legislative power are not words of limitation, the Court said:

"They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v. Road Carriers ^[F119] ; Fraser v. State Services Commission ^[F120] ; Taylor v. New Zealand Poultry Board ^[F121] ), a view which Lord Reid firmly rejected in Pickin v. British Railways Board ^[F122] , is another question which we need not explore."

That question was, however, raised in Kable v. DPP (NSW) ^[F123] , and there I expressed the view that the doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law and that it is of its essence that a court, once it has ascertained the true scope and effect of valid legislation, should give unquestioned effect to it accordingly ^[F124] . I need not here repeat the reasoning or refer to the authorities which support that view.

The power of the Commonwealth Parliament under s 122 of the Constitution is, if anything, wider than its power to make laws for the peace, order, and good government of the Commonwealth under s 51. That power is, of course, more restricted in geographical terms, but it is, unlike the parliament's power under s 51, unlimited in terms of subject matter. In that sense, the legislative power of the parliament to make laws for the government of the territories is sovereign and, subject to the possibility of any specific limitation to be found elsewhere in the Constitution, there is nothing which places rights of any description beyond its reach. Accordingly, this aspect of the plaintiffs' claim must fail.

Conclusion

For all of these reasons, I would answer the first question in each case in the negative. Since my conclusion is that the Constitution does not afford the rights upon which the plaintiffs base their claims, it is unnecessary to answer the second question, which asks whether a breach of any such rights would give rise to a right of action against the Commonwealth sounding in damages. It is unnecessary to answer the other questions.