Kruger & Anors v Commonwealth

(1997) 190 CLR 1

(Judgment by: Gaudron J)

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

Court:
HIGH COURT OF AUSTRALIA

Judges: Brennan CJ
Dawson
Toohey

GaudronMcHugh
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

Judgment by:
Gaudron J

The plaintiffs in these actions are Aboriginal Australians. All but one, Rosie Napangardi McClary, claim that, as children, they were removed from their mothers and families and kept in Aboriginal reserves or institutions. Rosie Napangardi McClary is a mother who claims that her child, Queenie Rose, was taken from her.

The acts of which the plaintiffs complain are said to have occurred in the Northern Territory between 1925 and 1960. It is alleged that they were carried out by Protectors appointed under the Aboriginals Ordinance 1918 (NT) ("the Ordinance"), and, after May 1957, officers appointed under the Welfare Ordinance 1953 (NT) ("the Welfare Ordinance") with the authority or purported authority of the Chief Protector of Aboriginals of the Northern Territory ("the Chief Protector") or, after 5 April 1939, the Director of Native Affairs of the Northern Territory ("the Director") and their delegates.

The Ordinance was made by the Governor- General pursuant to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act") [F221] . It was amended from time to time, including by enactments of the Legislative Council for the Northern Territory. It was repealed by the Welfare Ordinance with effect from May 1957.

Relevant provisions of the Ordinance and of the Welfare Ordinance

It is convenient to refer to the Ordinance in its original form and to refer to specific amendments only when necessary.

Section 4 of the Ordinance provided for the appointment of a Chief Protector and Protectors to exercise powers and duties conferred on them by the Ordinance and by regulations made pursuant to s 67. By s 6(1), the Chief Protector was empowered "at any time to undertake the care, custody, or control of any aboriginal or half- caste, if, in his opinion it [was] necessary or desirable in the interests of the aboriginal or half-caste ... to do so". He could, for that purpose, take that person into custody [F222] . Until 1953, the Chief Protector, was, by s 7(1), the legal guardian of every Aboriginal and every half-caste child. As a result of amendments in 1953, the Director became the legal guardian of all Aboriginal persons.

The Ordinance provided, in s 10 [F223] , for Crown Lands to be made Aboriginal reserves and, in s 13, for the licensing of mission stations, reformatories, orphanages, schools, homes and other institutions established by private contributions as Aboriginal institutions [F224] . Section 16(1) of the Ordinance authorised the removal of Aboriginals to and their detention in reserves and institutions in these terms:

"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".

Those who refused to be moved or resisted the operation of s 16(1) were, by s 16(2), guilty of an offence. By s 16(3), persons who were lawfully employed, those who held permits to be absent from a reserve or Aboriginal institution, females married to and residing with husbands "substantially of European origin or descent" and those for whom, in the opinion of the Chief Protector, other satisfactory arrangements existed were exempt from the operation of s 16(1).

It is necessary to mention s 67(1) of the Ordinance. It authorised the making of regulations, including, by par (c), regulations "enabling any aboriginal or half-caste child to be sent to and detained in an Aboriginal Institution or Industrial School" [F225] .

With the repeal of the Ordinance in 1957, procedures were established by the Welfare Ordinance allowing for Aboriginals to be made wards. And by s 17(1) of the Welfare Ordinance, the Director was empowered, if he considered it in the best interest of a ward, to make orders for his or her removal to and detention in a reserve or institution [F226] .

Constitutional challenge to the validity of the Ordinance and claims for damages

The plaintiffs claim that the Ordinance was at all times invalid. Alternatively, they claim that ss 6, 7, 16 and 67, so far as the latter provision conferred power to make or amend removal regulations, were at all times invalid. If need be, they also claim that s 13(1) of the Administration Act was invalid to the extent that it purported to authorise the Ordinance or alternatively, to the extent that it authorised ss 6, 7, 16 and the challenged operation of s 67. No challenge is made to the validity of the Welfare Ordinance or any of its provisions.

In par 29 of their Amended Statement of Claim, the plaintiffs in the first action assert that the Ordinance was invalid by reason of seven distinct considerations which may be summarised as follows:

•
the Ordinance was not a law for the government of the Northern Territory and, thus, not authorised by s 122 of the Constitution;
•
it exceeded the legislative power of the Commonwealth in that that power, whether conferred by s 122 or otherwise, does not extend to laws destroying racial or ethnic groups, their language or culture or to laws authorising genocide and crimes against humanity;
•
it purportedly conferred judicial power contrary to the provisions of Ch III of the Constitution;
•
it was contrary to an implied constitutional freedom from removal and detention without due process of law;
•
it was contrary to an implied constitutional right and/or guarantee of equality;
•
it was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association;
•
it was contrary to s 116 of the Constitution.

The same assertions are made in par 26 of the Amended Statement of Claim in the second action.

The plaintiffs further contend that, by reason of the invalidity which they assert, they are entitled to recover damages from the Commonwealth. They say they are entitled to damages for causes of action recognised by the common law and, also, for breach of their constitutional rights.

The Commonwealth's answer

So far as is presently relevant, the Commonwealth denies that the plaintiffs have any claim to damages. It also asserts, in par 29(d) of its Amended Defence in the first action, that, if there are constitutional freedoms as claimed by the plaintiffs, the Ordinance was not contrary to those freedoms in that:

"(i)
The Aboriginals Ordinance was enacted and amended for the purpose of the protection and preservation of persons of the Aboriginal race; and
(ii)
at all material times the Aboriginals Ordinance was capable of being reasonably considered to be or alternatively was appropriate and adapted to the achievement of that purpose".

The Commonwealth further asserts, in par 29(e) of its Amended Defence in the first action, that "the constitutional validity of the Aboriginals Ordinance must be considered by reference to standards and perceptions prevailing at the time of its enactment or operation and not by reference to contemporary standards and perceptions".

The same matters are pleaded by the Commonwealth in its Amended Defence in the second action.

Questions reserved

In each action, the Chief Justice has reserved seven questions for the consideration of the Full Court. In each action, questions 4, 5 and 6 only arise if question 2 is answered in favour of the plaintiffs. As will later appear, I am of the view that question 2 must be answered against them in each action and, thus, it is unnecessary to make further reference to questions 4, 5 and 6.

In the first action, questions 1, 2, 3 and 7 are as follows:

"1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the [Aboriginals] Ordinances and regulations ... [made thereunder] 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 ... [which purportedly authorised the acts of which the plaintiffs complain]?
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?
3. If yes to question 1 or question 2, are any and which of the matters pleaded in subparagraphs (d) and (e) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?
7. On the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim-

(a)
are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred?
(b)
by what statute?"

Paragraphs 1 to 6 of the Amended Statement of Claim record details of the removal of the plaintiffs in the first action and, in the case of Rosie Napangardi McClary, her daughter and their detention in specified Aboriginal reserves and institutions.

The questions reserved by the Chief Justice in the second action are the same as those reserved in the first, save for references to different paragraph numbers in the plaintiffs' Amended Statement of Claim and in the Commonwealth's Amended Defence.

Section 122 of the Constitution

It is convenient to deal first with the argument that the Ordinance was not a law "for the government of [a] territory" and thus not authorised by s 122 of the Constitution. The argument proceeds from the clearly correct premise that the Ordinance authorised gross violations of the rights and liberties of Aboriginal Australians to the proposition that, on that account, it was disproportionate to anything that might reasonably be required for the government of the Northern Territory and, then, to the conclusion that it was not a law authorised by s 122.

There are occasions when it is necessary to identify the purpose of a law, either because purpose is the criterion of its validity (for example, if it is said to be a law for defence) [F227] or invalidity (for example, if the purpose of a State law is to discriminate against a resident of another State) [F228] or because some specified purpose is said to provide the requisite connection with a head of legislative power [F229] . Purpose is "ascertained by considering the true nature and operation of the law and the facts with which it deals" [F230] . And in that exercise, it is sometimes convenient to ask whether the law in question is appropriate and adapted or, which is, in effect, the same thing, whether it is proportionate to the purpose which it is said to serve [F231] . At least that is so where the issue is whether the law in question offends a constitutional prohibition [F232] . On the other hand, where the issue is whether it has a purpose providing a relevant connection with a head of legislative power, the question is whether it is reasonably capable of being viewed as appropriate and adapted to some purpose connected with the subject-matter of that power [F233] . If it is not appropriate and adapted to the purpose in question or, if it is not reasonably capable of being so viewed, where that is the relevant test, it can be taken that it has some other and different purpose [F234] . However, that is an exercise which is undertaken only if purpose is in issue and, then, only if the purpose of the law is not discernible from its terms or its context.

It may be taken that s 122 of the Constitution has a purposive element in that it authorises laws "for the government of [a] territory" [F235] . That purposive element has the consequence that not every law that operates in a territory is, to that extent, a law for the government of that territory. And that is so notwithstanding that a law may have a dual character, in the sense that it is enacted pursuant to two separate heads of legislative power [F236] . It may be that a law which serves some distinct constitutional purpose (for example, defence) may prove, on analysis, to have no other purpose and, thus, not to be a law for the government of a territory, notwithstanding that it operates in a territory or, indeed, only in a territory. Similarly, it may be that a law which operates throughout Australia with respect to some specific matter, for example, tax, is not sufficiently connected with the Australian Capital Territory or the Northern Territory to be properly classified as a law for their government.

The purposive element of s 122 notwithstanding, no question arises in this case with respect to proportionality. Whatever the precise nature of the power conferred by s 122 [F237] and whatever the differences between that power and the power conferred by s 51 of the Constitution [F238] , a law which operates on and operates only on people, places and events in a territory and which serves no distinct constitutional purpose apart from the government of a territory is, in my view, clearly a law for the government of that territory. The Ordinance was a law of that kind and, thus, it was authorised by s 122 unless that provision is subject to one or other of the constitutional limitations for which the plaintiffs contend.

Immunity from laws authorising acts of genocide: reading down of s 122

Although they asserted a somewhat wider immunity in their Statements of Claim, the plaintiffs' oral and written arguments were limited to the contention that the Ordinance was invalid in that it authorised acts of genocide contrary to Art II(d) and (e) of the United Nations' Convention on the Prevention and Punishment of the Crime of Genocide ("the Genocide Convention"). They argued that the Genocide Convention gives expression to an enduring peremptory norm of international law and that s 122 and other constitutional grants of legislative power must be construed on the basis that they were not intended to confer power to make laws authorising acts contrary to that norm.

"Genocide" is defined in Art II of the Genocide Convention as follows:

"... 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 notion of genocide embodied in the definition in Art II of the Genocide Convention is so fundamentally repugnant to basic human rights acknowledged by the common law that, by reason of well settled principles of statutory interpretation, an intention to authorise acts falling within that definition needs to be clear beyond doubt before a legislative provision can be construed as having that effect [F239] . Ordinarily, however, different considerations apply to the interpretation of constitutional documents.

It is settled doctrine that a constitutional grant of power is to be "construed with all the generality which the words used admit." [F240] Moreover because of the democratic principles enshrined in the Constitution, constitutional powers are not to be read down to prevent the possibility of abuse [F241] . At least that is so in relation to the powers conferred by s 51 of the Constitution. It was said with reference to those powers, in Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (" the Engineers' Case ") [F242] , that:

"If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done."

If territories are put to one side, it may be reasonable to say, as was said by Professor Harrison Moore [F243] and as has often been repeated [F244] that, under the Australian Constitution, "the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power". However, the Constitution ensures no share in political power to the people of a territory. They have no constitutional right to participate in elections for either House of Parliament; they have no constitutional right to self-government. Such rights as they have in these respects are purely statutory and, so far as the Northern Territory is concerned, were of a lesser order than those enjoyed by other Australians during the period with which these cases are concerned [F245] . And only since 1977 [F246] have persons resident in a Territory had the right to vote in a referendum and, then, only if there is a law in force allowing for the Territory's representation in the House of Representatives [F247] .

At least to the extent that the Constitution makes no distinct provision for the participation of the people of a territory in any electoral processes, it may fairly be said that it allows for territories to be ruled as Commonwealth fiefdoms. That being so, the considerations which require that other grants of legislative power be construed without regard to possible abuse have no part to play in the construction of s 122. Rather, I would consider it much the better view that s 122 is to be construed in light of the fact that, unlike other Australians, persons resident in a Territory have no constitutional right to participate in the democratic processes and, thus, have no protection on that account in the event of an abuse of power. And, I would consider that that approach requires that s 122 should be construed on the basis that it was not intended to extend to laws authorising gross violations of human rights and dignity contrary to established principles of the common law.

As will later appear, I am not persuaded that it is correct to say that s 122 stands wholly apart from Ch III. Nor do I think it correct to say that, either because s 122 confers power of a different order from that conferred by s 51 or because it is not made subject to the Constitution, it is not subject to any of the express or implied constitutional limitations which confine the legislative power conferred by s 51. However, if either of those propositions is, to any extent, correct that is an additional reason for construing s 122 on the basis that it does not extend to laws authorising gross violations of human rights and dignity.

Were it necessary to decide the matter, I would hold that, whatever the position with respect to other heads of legislative power, s 122 does not confer power to pass laws authorising acts of genocide as defined in Art II of the Genocide Convention. The acts encompassed in that definition are so fundamentally abhorrent to the principles of the common law that, on the approach which I favour, it is impossible to construe the general words of s 122 as extending to laws of that kind. However, the question whether s 122 is so confined does not and cannot arise in this case.

Although it may be taken that the Ordinance authorised the forcible transfer of Aboriginal children from their racial group, the settled principles of statutory construction, to which reference has been made, compel the conclusion that it did not authorise persons to remove those children "with intent to destroy, in whole or in part, ... [their] racial ... group, as such". It follows that the Ordinance did not authorise acts of genocide as defined in the Genocide Convention and, if there is a limitation of the kind which I favour, it was not infringed by the Ordinance. It also follows that, subject to a consideration of the existence of a time bar, if acts were committed with the intention of destroying the plaintiffs' racial group, they may be the subject of an action for damages whether or not the Ordinance was valid.

Chapter III of the Constitution and the claimed guarantee of due process

The argument with respect to Ch III of the Constitution and that with respect to the asserted freedom from detention except pursuant to due process are closely related. It is convenient that they be dealt with together.

The argument based on Ch III starts with the proposition that, subject to certain exceptions which do not include powers of the kind here in issue, the power to deprive people of their liberty is judicial power. It is then said that, as the Ordinance was made pursuant to a law of the Commonwealth, its attempt to confer power on the Chief Protector or his delegate to deprive Aboriginal people of their liberty was an attempt to confer on them the judicial power of the Commonwealth. If that is so, the plaintiffs are correct in their claim that the Ordinance was, to that extent, invalid. In this regard, it is sufficient to note that it is well settled that Ch III requires that the judicial power of the Commonwealth be vested only in the courts named and specified in s 71 of the Constitution [F248] . However, the plaintiffs face considerable difficulty in making good the two propositions on which they rest their claim that the Ordinance offended the requirements of Ch III.

It was held in R v. Bernasconi [F249] that s 80, which is in Ch III and which requires trial by jury for indictable offences "against any law of the Commonwealth", does not apply to offences created by a law or by an Ordinance made pursuant to a law enacted under s 122 of the Constitution. Similarly, it was held in Spratt v. Hermes [F250] that courts may be created under s 122 to exercise jurisdiction with respect to events in or concerning a territory without satisfying the requirements of s 72 of the Constitution. Those decisions have sometimes been said to rest on the proposition that Ch III "has no application to the territories" or "does not extend to the Territories" [F251] .

In Spratt , Barwick CJ declined to accept the full extent of the proposition that Ch III has no application to territories [F252] . Instead, he was of the view that the decision in Bernasconi was correct, but on the ground that s 80 applies only to offences against laws enacted pursuant to s 51 of the Constitution [F253] . And in Spratt his Honour held that s 72 applies only to federal courts, that is "courts created by laws made in pursuance of the `federal' legislative powers contained in s 51 of the Constitution", not courts created pursuant to s 122 [F254] . There are difficulties with his Honour's approach to ss 72 and 80 in that it involves reading limitations into those provisions which their terms do not require.

There are, however, even greater difficulties with the view that Ch III does not extend to the Territories. In my view, there is no convincing reason for treating the words "[t]he judicial power of the Commonwealth" in s 71 of the Constitution as not extending to the determination of justiciable conflicts by application of laws enacted by the Parliament of the Commonwealth pursuant to s 122. However, it may be that different considerations apply to laws enacted by the legislature of a self-governing Territory [F255] . And I do not see why the expression "courts created by the Parliament" in s 72 of the Constitution does not include courts created by the exercise of legislative power conferred by s 122. Again, different considerations may apply to courts created by laws enacted by the legislature of a self- governing Territory. However, it is unnecessary for me to express a concluded view on these matters for I am of the view that the plaintiffs cannot make good their first proposition, namely, that the power to deprive people of their liberty is necessarily judicial power.

The plaintiffs rely for their argument with respect to Ch III on statements in Chu Kheng Lim v. Minister for Immigration [F256] which point in favour of a broad immunity from detention in custody save by order of a court in consequence of a determination of criminal guilt. Thus, it was said in the joint judgment of Brennan, Deane and Dawson JJ that [F257] :

"It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt."

And subject to certain exceptions, their Honours expressed the view that "the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth." [F258] Their Honours explained the immunity on the basis that "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt." [F259]

Arrest and custody pursuant to warrant pending trial, detention by reason of mental illness or infectious disease, and punishment for contempt of Parliament and for breach of military discipline were recognised by Brennan, Deane and Dawson JJ in Lim as exceptions to the immunity which their Honours would there acknowledge [F260] . And of course, it was held in Lim that aliens might lawfully be detained in custody for the purposes of expulsion and deportation and, also, for the purposes of the receipt, investigation and determination of applications for admission to this country [F261] .

At one level, the existence of so many acknowledged exceptions to the immunity for which the plaintiffs contend and the fact that those exceptions serve so many different purposes tell against the implication of a constitutional rule that involuntary detention can only result from a court order. And that is so even if the supposed rule is one that is subject to exceptions. Of greater significance, however, is the consideration that it cannot be said that the power to authorise detention in custody is exclusively judicial except for clear exceptions. I say clear exceptions because it is difficult to assert exclusivity except within a defined area and, if the area is to be defined by reference to exceptions, the exceptions should be clear or should fall within precise and confined categories.

The exceptions recognised in Lim are neither clear nor within precise and confined categories. For example, the exceptions with respect to mental illness and infectious disease point in favour of broader exceptions relating, respectively, to the detention of people in custody for their own welfare and for the safety or welfare of the community. Similarly, it would seem that, if there is an exception in war time, it, too, is an exception which relates to the safety or welfare of the community.

Once exceptions are expressed in terms involving the welfare of the individual or that of the community, it is not possible to say that they are clear or fall within precise and confined categories. More to the point, it is not possible to say that, subject to clear exceptions, the power to authorise detention in custody is necessarily and exclusively judicial power. Accordingly, I adhere to the view that I tentatively expressed in Lim , namely, that a law authorising detention in custody is not, of itself, offensive to Ch III [F262] .

Moreover, the acknowledgment by Brennan, Deane and Dawson JJ in Lim that the immunity there enunciated does or may not operate in war time is, in my view, inconsistent with the notion of a general immunity from involuntary detention deriving from Ch III of the Constitution. The defence power, as with the power to legislate with respect to the other matters specified in s 51, is "subject to [the] Constitution". It is, thus, equally subject to the limitations deriving from Ch III as is the power to legislate with respect to those other matters.

I do not doubt that there is a broad immunity similar to, but not precisely identical with that enunciated by Brennan, Deane and Dawson JJ in Lim. In my view, however, it does not derive from Ch III. Rather, I am of the view that the true constitutional position is that, subject to certain exceptions, a law authorising detention in custody, divorced from any breach of the law, is not a law on a topic with respect to which s 51 confers legislative power. The defence power may be an exception to that proposition [F263] . And the proposition does not extend to laws with respect to quarantine [F264] or laws with respect to aliens [F265] and the influx of criminals [F266] . It may be that an exception should also be acknowledged with respect to the race power [F267] . It is however arguable that that power only authorises laws for the benefit of "the people of [a] race for whom it is deemed necessary to make special laws" [F268] .

If, as I think, the legislative power conferred by s 51 of the Constitution does not extend to authorise laws conferring a power of detention divorced from criminal guilt, unless they are laws with respect to the topics or, perhaps, some of the topics to which reference has been made, that is another reason for concluding that there is no similar immunity deriving from Ch III. On that basis, there is no necessity for any such implication. At least that is so with respect to the powers conferred by s 51. However and no matter the position with respect to s 51, it can only be said that s 122 does not authorise laws for the detention of persons in custody, divorced from a breach of the law, if that provision is subject to some express or implied limitation in that regard. Because, in my view, the power to authorise detention in custody is not exclusively judicial in character, Ch III is not the source of any such limitation. It follows that the Ordinance was not invalid by reason that it purportedly conferred judicial power contrary to Ch III of the Constitution.

The plaintiffs' argument with respect to an implied right of due process is closely related to their argument based on Ch III of the Constitution. The right to due process is asserted in the Amended Statements of Claim as "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".

There are two aspects to the asserted right of due process. The first is, in essence, another way of putting the argument based on Ch III. Accordingly, it need not be further considered. The second is an alternative to the argument based on Ch III. It proceeds on the basis that, subject to exceptions which do not extend to the Ordinance, the power to order involuntary detention is necessarily judicial power, but is not the judicial power of the Commonwealth if conferred pursuant to s 122 of the Constitution. For the reasons given with respect to the argument based on Ch III, it cannot be said that the power to order involuntary detention is necessarily judicial power, whether or not subject to exceptions, and, thus, s 122 is not subject to an implied right of due process, as contended by the plaintiffs. There being no such right, the Ordinance was not invalid by reason of its infringement.

Implied guarantee of equality

The plaintiffs rest their argument in support of an implied guarantee of legal equality on what was said by Deane and Toohey JJ in Leeth v. The Commonwealth [F269] . In that case, their Honours expressed the view, in a dissenting judgment, that, as a matter of necessary implication and subject to certain exceptions, the Constitution provides a guarantee of legal equality. Their Honours allowed for exceptions where the grant of legislative power expressly authorises discriminatory laws and where the subject-matter of the grant is "such as to rebut the assumption that such discrimination was unauthorized by the relevant provision of the Constitution" [F270] .

In Leeth , I expressed the view, to which I still adhere, that Ch III operates to preclude the conferral on courts of discretionary powers which are conditioned in such a way that they must be exercised in a discriminatory manner [F271] . If that view is correct, there is a limited constitutional guarantee of equality before the courts, not an immunity from discriminatory laws which, in essence, is what is involved in the argument that there is an implied constitutional guarantee of equality.

Several provisions of the Constitution are expressly concerned to prevent discrimination: the power to legislate with respect to taxation is subject to the requirement that laws on that topic "not ... discriminate between States or parts of States" [F272] ; the power to legislate with respect to bounties is subject to the requirement that they "be uniform throughout the Commonwealth" [F273] ; customs duties are to be uniform [F274] ; trade, commerce and intercourse among the States are to be absolutely free [F275] , by which is meant free from "discriminatory burdens of a protectionist kind" [F276] . And by s 117, "[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."

There is a dual aspect to s 117: it operates to prevent discrimination; it also sanctions discrimination so far as concerns persons who are not subjects of the Queen. It is not the only provision of the Constitution which sanctions different treatment for different people. Thus, as Deane and Toohey JJ acknowledged in Leeth , the power to make laws with respect to aliens and persons of a particular race necessarily allows for different treatment for different classes of people [F277] . And their Honours also acknowledged that "the nature of a Commonwealth legislative power may be such as to authorize laws which discriminate between persons in different geographical areas", giving defence, quarantine and medical services as possible examples [F278] .

Section 25 of the Constitution also sanctions discriminatory laws and allows that, for the purposes of determining the number of members of the House of Representatives to be chosen in each State, "if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted." Moreover, until 1967, the Constitution, itself, was blatantly discriminatory. Until repealed in that year, s 127 provided, in terms completely contrary to any notion of equality, that "[i]n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives [should] not be counted". That latter provision precludes any implication of equality benefiting Aboriginal Australians in respect of events which occurred before its repeal in 1967.

Quite apart from the discriminatory provisions of s 127, the Constitutional provisions which sanction and those which operate to prevent discriminatory laws so combine, in my view, that there is no room for any implication of a constitutional right of equality beyond that deriving from Ch III. That deriving from Ch III has no bearing on the validity of the Ordinance. It follows that the Ordinance was not invalid by reason that it was contrary to an implied constitutional right to or guarantee of equality.

Implied freedom of movement and of association

It is settled constitutional doctrine that the Constitution provides for a system of government which entails representative government and representative democracy [F279] . It is also settled constitutional doctrine that the system of democratic government for which the Constitution provides depends for its maintenance on freedom of communication and discussion of political matters. Thus, it was held in Nationwide News Pty Ltd v. Wills [F280] and in Australian Capital Television Pty Ltd v. The Commonwealth [F281] that the legislative power conferred by s 51 does not extend to laws which impermissibly impede the free flow of information and ideas on matters which may come under consideration in the political process. And it was held in Theophanous v. Herald & Weekly Times Ltd [F282] and in Stephens v. West Australian Newspapers Ltd [F283] that that freedom impacts upon the law of defamation.

The implied constitutional freedom of political communication was recognised in cases concerned with laws which, in one way or another, restricted the freedom to communicate information, ideas or opinions with respect to matters which might fall for consideration in the political process. Those cases do not hold that the freedom is confined to political communications and discussions. Rather, the position is that the Constitution mandates whatever is necessary for the maintenance of the democratic processes for which it provides [F284] .

The fundamental elements of the system of government for which the Constitution provides were described by Mason CJ, in terms with which I agree, in Australian Capital Television . His Honour said [F285] :

"... the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act."

It is clear, and it has been so held, that the fundamental elements of the system of government mandated by the Constitution require that there be freedom of political communication between citizens and their elected representatives and also between citizen and citizen [F286] . However, just as communication would be impossible if "each person was an island" [F287] , so too it is substantially impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition. Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others [F288] . And freedom of association necessarily entails freedom of movement [F289] .

Modern means of communication notwithstanding, freedom of political communication between citizen and citizen and between citizens and their elected representatives entails, at the very least, freedom on the part of citizens to associate with those who wish to communicate information and ideas with respect to political matters and those who wish to listen. It also entails the right to communicate with elected representatives who "have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters." [F290]

Again modern methods of communication notwithstanding, freedom of political communication between citizen and citizen and between citizens and their elected representatives entails, at the very least, freedom to move within society, freedom of access to the institutions of government and, as was early recognised in R v. Smithers; Ex parte Benson [F291] , freedom of access to the seat of government.

As already mentioned, the Commonwealth's power to legislate with respect to the matters specified in s 51 of the Constitution is limited by and subject to the implied freedom of political communication necessary for the maintenance of the system of government for which the Constitution provides. And because freedom of movement and freedom of association are, at least in the respects mentioned, aspects of freedom of political communication, they, too, are implicit in the Constitution and constrain the power conferred by s 51. It is, however, another question whether the power conferred by s 122 is subject to the same freedoms. That question, so far as it concerns freedom of political communication, was referred to in Nationwide News and in Australian Capital Television , but not decided [F292] .

There are two matters which might be thought to provide some support for the view that the power to legislate pursuant to s 122 is not constrained by the freedom of political communication identified in Nationwide News and in Australian Capital Television . They are both matters to which some reference has already been made. First, s 122 is, at least in some respects, a power of a "different order" from that conferred by s 51 [F293] . The second is that the system of representative government which the Constitution requires has no application to the Territories.

There can be no doubt that s 122 is different from s 51 in that it is not expressed to be "subject to [the] Constitution". Moreover, it is clear that s 122 is a "non-federal" power, in the sense that, unlike the power conferred by s 51, it is not shared between the Commonwealth and the States. It may be taken, by reason of these considerations, that it is not subject to limitations derived by implication from the federal structure of the Constitution [F294] . However, a number of decisions of this Court have held that s 122 is not subject to or limited by certain other provisions of the Constitution which clearly confine other Commonwealth powers. It has been held, for example, that a law enacted under s 122 for the compulsory acquisition of property is not subject to the requirement for just terms in s 51(xxxi) of the Constitution [F295] . And as already mentioned, it has been held in a number of cases that the provisions of Ch III, or at least some of those provisions, do not limit the power conferred by s 122 [F296] . It has also been held that a territory legislature, created pursuant to s 122, may enact laws with respect to Commonwealth places notwithstanding that, by s 52(i), the power to legislate with respect to those places is conferred exclusively on the Commonwealth [F297] .

It does not follow that, because s 122 is not expressed to be subject to the Constitution or because it is not subject to some constitutional prohibitions or restrictions, its meaning and operation are not affected by other constitutional provisions. Indeed, Capital Duplicators Pty Ltd v. Australian Capital Territory [F298] establishes to the contrary. It was held in that case that s 122 does not authorise territory legislatures to impose duties of excise, the power to impose which is, by s 90, conferred exclusively on the Commonwealth.

Nor, in my view, does it follow that, because the system of representative government for which the Constitution provides has no application to territories, s 122 is unaffected by the implied freedom of political communication identified in Nationwide News and in Australian Capital Television . In this regard, it is sufficient to note that the Constitution contemplates that territories will be governed by laws enacted by a Parliament comprised of persons elected by and responsible to the people; it most certainly does not contemplate that they are to be governed by an executive unanswerable either to the Parliament or to the people.

Accordingly, the question whether s 122 is subject to the freedom of political communication identified in Nationwide News and in Australian Capital Television is one that must be answered by ascertaining the meaning and operation of that provision in its constitutional setting. In particular, its meaning and operation must be ascertained by having regard to the Constitution as a whole. In this respect, I adopt what was said by Kitto J in Lamshed v. Lake [F299] :

"... the fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories."

When regard is had to the Constitution as a whole, there are two features which, in my view, necessitate the conclusion that s 122 is confined by the freedom of political communication identified in Nationwide News and in Australian Capital Television and by the subsidiary freedoms of association and movement to which reference has already been made. The first is the nature and scope of the freedom of political communication identified in those cases. The second is the special position of territories in our Constitutional arrangements.

Freedom of political communication is a freedom which extends to all matters which may fall for consideration in the political process. The government of the Australian territories is one such matter. Hence, the freedom extends to all matters that bear upon territory government as well as those which bear upon the actual government of the Territories [F300] .

Moreover, the nature of the freedom is such that it extends to members of society generally [F301] . In Australian Capital Television , Mason CJ pointed out that "individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion." [F302] However, informed judgment does not depend simply on media discussion. At base, it depends on public discussion, that is discussion in which all are free to participate, or, as was put by Mason CJ in Australian Capital Television , "[t]he efficacy of representative government depends ... upon free communication ... between all persons, groups and other bodies in the community." [F303]

The nature and extent of the freedom identified in Nationwide News and in Australian Capital Television assume particular significance in the context of the constitutional arrangements made with respect to territories. It may be true to say that the Territories do not form part of the federation. Even so, s 111 of the Constitution provides that the Commonwealth, which is constituted by the federating States, has "exclusive jurisdiction" over surrendered territory, as is the case with the Northern Territory [F304] . And given the terms of ss 111 and 122 and, so far as concerns the Australian Capital Territory, ss 52 [F305] and 125 [F306] , it must be acknowledged that neither Territory is "a quasi foreign country remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament but ... a territory of Australia about the government of which the Parliament may make every proper provision as part of its legislative power operating throughout its jurisdiction." [F307]

Although it is for the Parliament to make proper provision for the government of the territories of the Commonwealth, responsibility for their government and, thus, for the welfare of those who reside in them ultimately rests with the people to whom the Constitution entrusts the responsibility of choosing the Members of Parliament [F308] . Clearly, the proper discharge of that responsibility depends upon the free flow of information with respect to all matters bearing upon territory government and, also, those matters which bear upon the actual government of the Territories.

Moreover, the proper discharge of the responsibility which the people of Australia ultimately bear for the government of the Territories depends on freedom of political communication between them and persons resident in those Territories: there could hardly be informed judgment on matters relevant to their government if residents were not free to provide other members of the body politic with information as to the affairs of the Territories. And although persons resident in the Territories have no constitutional right to participate in the electoral processes for which the Constitution provides, the discharge by elected representatives and Ministers of State of their responsibilities requires that there be freedom of communication between them and persons residing in the Territories. And for discussion between persons resident in the Territories and other members of the body politic, including elected representatives and Ministers of State, to be properly informed, it is necessary that there be freedom of political communication between the persons who reside in the Territories.

It follows that, if Parliament is to remain accountable to the Australian people, the freedom of political communication identified in Nationwide News and in Australian Capital Television must extend to persons resident in the Territories and that, in that regard, s 122 stands in the same position as s 51. That being so, the power to legislate pursuant to s 122 is confined by the freedom of political communication identified in Nationwide News and in Australian Capital Television and, also, by the subsidiary freedoms of movement and association which, as I have explained, are essential for the maintenance and integrity of the system of representative government for which the Constitution provides.

The freedom of political communication identified in Nationwide News and in Australian Capital Television is not absolute [F309] . Similarly, freedom of association and freedom of movement are not absolute. Obviously, they must yield to valid laws of the Commonwealth on topics which clearly comprehend restrictions on movement and association, as is certainly the case, for example, with s 51(vi) which authorises laws with respect to defence, s 51(ix) which authorises laws with respect to quarantine and s 51(xix), so far as it is concerned with aliens. It is equally obvious that freedom of association and freedom of movement must yield to court orders for the detention of persons in custody upon conviction for criminal offences. So to state is not to mark out the boundaries of these freedoms: it is simply to illustrate that they are not absolute.

Because freedom of movement and freedom of association are not absolute, the question whether the Ordinance impermissibly restricted those freedoms is one that necessitates consideration of the issues raised by the Commonwealth in its plea that the Ordinance was enacted "for the purpose of the protection and preservation of persons of the Aboriginal race". That plea is the subject of Q 3. Until that question is answered, it is not possible to answer that part of Q 1 which asks whether the Ordinance was invalid because it impermissibly restricted freedom of movement and of association.

Freedom of Religion

Section 116 of the Constitution 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."

Clearly, s 116 is, in terms, wide enough to extend to laws enacted pursuant to s 122. However, in Attorney- General (Vict); Ex rel Black v. The Commonwealth [F310] , Gibbs J doubted whether that was so.

Before turning to the question whether s 122 is confined by s 116, it is necessary to note the Commonwealth's submission that the plaintiffs "have not pleaded that, at the relevant time, they or their parents held a religion; nor that the taking of [the plaintiffs and Rosie Napangardi McClary] into custody and care deprived them of the ability to exercise that religion". That submission is relevant to the extent that the plaintiffs claim damages for breach of their rights to religious freedom, assuming it can be said that they have such rights and that their breach sounds in damages. It is not, however, relevant to a determination whether the Ordinance was invalid because it was, in terms of s 116, a "law ... for prohibiting the free exercise of ... religion".

In Lamshed v. Lake , Dixon CJ, with whom Webb and Taylor JJ agreed, said that he did not "see why s 116 should not apply to laws made under s 122." [F311] Similar statements were made in Teori Tau v. The Commonwealth [F312] , in Adelaide Company of Jehovah's Witnesses Inc v. The Commonwealth [F313] and in Attorney-General (Vict); Ex rel Black v. The Commonwealth [F314] . However and as already noted, in that latter case Gibbs J expressed some reluctance to accept that proposition. His Honour acknowledged the strength of the dicta in the decided cases but said [F315] :

"... those dicta are in my opinion very difficult to reconcile with the decision in R v. Bernasconi where it was held that the power given by s 122 is not restricted by s 80 of the Constitution - see also Spratt v. Hermes " (citations omitted).

His Honour added [F316] :

"If s 122 is limited by s 116, the latter section will have a much larger operation in the Territories than in the States, for although s 116 is contained in Ch v. of the Constitution which is headed 'The States' it is not expressed to bind the States."

The cases to which Gibbs J referred, namely, Bernasconi and Spratt v. Hermes , are cases concerned with provisions found in Ch III of the Constitution. I have already indicated that I see no reason why there should be read into those provisions limitations which their terms do not require. Moreover, if, to any extent, s 122 stands free of Ch III it can, in my view, only be by reason of the critical significance of Ch III for the maintenance of the federal compact [F317] . There is nothing which warrants special federal significance being attributed to s 116.

Nor, in my view, should s 116 be read down by reference to the consideration that it is not expressed to bind the States. Rather, the consideration that, unlike other Australians, residents of the Territories have neither a constitutional right to participate in the electoral processes for which the Constitution provides nor a constitutional right to self-government is, in itself, a strong reason for reading s 122 as subject to express constitutional guarantees and freedoms unless their terms clearly indicate otherwise. And, it may not be entirely accurate to say that, if s 122 is limited by s 116, the latter has "a much larger operation in the Territories than in the States" [F318] . Rather, it may be that, so far as concerns self-governing territories, the position is the same. In this respect, it is sufficient to observe that s 116 is directed to laws made by the Commonwealth, not laws enacted by the legislature of a self- governing territory.

As already mentioned, the accepted approach to constitutional interpretation is that constitutional provisions "should be construed with all the generality which the words used admit." [F319] There may be special considerations which require that approach to be modified in relation to particular provisions, as I think is necessary with s 122. But there is no reason for modification in the case of constitutional guarantees. On the contrary, to adopt any but the general approach in relation to constitutional guarantees is to rob those guarantees of their efficacy and to depreciate rights which they serve to protect [F320] . Accordingly, in my view, s 116 is to be given full effect according to its terms. When given that effect it is, as Latham CJ said in Adelaide Company of Jehovah's Witnesses Inc [F321] :

"... a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws."

The question whether the Ordinance infringed the prohibition effected by s 116 was argued by reference only to that aspect of its prohibition concerned with the free exercise of religion. There are two issues involved in the question whether the Ordinance infringed that aspect of s 116, namely, whether the Ordinance was a law "prohibiting the free exercise of any religion" and, if so, whether it was a law " for prohibiting" it (emphasis added). These issues may conveniently be considered in conjunction with the Commonwealth's plea that the purpose of the Ordinance was to protect and preserve Aboriginal people. That plea will be considered later in these reasons.

An action for damages for infringement of Constitutional rights

The plaintiffs contend that there is or, perhaps, that there should now be recognised a cause of action sounding in damages for breach of constitutional guarantees and freedoms. They argue that "the integrity of constitutional entitlements, whether articulated as restrictions on legislative or executive power, privileges or immunities or positive rights, and whether express or implied, can only be preserved if appropriate and effective remedies are available for their breach." And they contend, by reference to decisions in other jurisdictions, notably the decision of the United States Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics [F322] , that, in all such cases, damages are the only appropriate remedy.

There are two matters which should be noted with respect to the plaintiffs' argument. First, it is only necessary to consider the argument as it relates to s 116 and to the implied constitutional freedoms of movement and association, they being, in my view, the only relevant limitations on the legislative power conferred by s 122 and, thus, the only freedoms which could conceivably have been infringed by the actions of which the plaintiffs complain. The second matter to be noted is that, as a matter of logic, the plaintiffs' argument can only succeed if and to the extent that the Constitutional prohibition in question can only be vindicated by an award of damages and, then, only by an award made in an action for breach of that constitutional prohibition rather than in an action for infringement of common law rights.

It is convenient to turn first to s 116. By its terms, s 116 does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, "in form, a constitutional guarantee of the rights of individuals" [F323] . It does not bind the States: they are completely free to enact laws imposing religious observances, prohibiting the free exercise of religion or otherwise intruding into the area which s 116 denies to the Commonwealth. It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right. It follows, in my view, that s 116 must be construed as no more than a limitation on Commonwealth legislative power. More precisely, it cannot be construed as impliedly conferring an independent or free-standing right which, if breached, sounds in damages at the suit of the individual whose interests are thereby affected.

Freedom of movement and of political communication stand in a somewhat different position from the limited guarantee of religious freedom effected by s 116 of the Constitution. They are freedoms which, of their nature are universal, in the sense that they necessarily operate without restriction as to time or place [F324] . That being so, they necessarily restrict State legislative power and thus, may be described as giving rise to general, although as earlier indicated, not absolute freedoms. Even so, it does not follow that the Constitution gives an independent or free standing right to move in society and to associate with one's fellow citizens which, if breached, sounds in damages.

The right to move in society and to associate with one's fellow citizens is an aspect of personal liberty which is jealously guarded by the common law and which is abridged only to the extent that it is inconsistent with positive rights, including property rights, or to the extent that statute law validly provides to the contrary [F325] . Personal liberty is protected by the Constitution to the extent that freedom of movement and association are impliedly mandated by it. However, there is no basis, in my view, for construing the Constitution as conferring an additional right over and above those provided by the common law. Moreover, the relevant rights provided by the common law are properly vindicated by actions for trespass to the person and for false imprisonment, actions which sound in damages, including, in appropriate cases, exemplary damages [F326] . There is, thus, no necessity to invent a new cause of action.

The Commonwealth plea: purpose and proportionality of the Ordinance in relation to freedom of movement and of association

It is necessary now to turn to so much of Q 1 as asks whether the Ordinance was invalid by reason that it impermissibly restricted freedom of movement or of association. As already indicated, that raises the issue involved in Q 3, namely, whether the Ordinance was consistent with those freedoms by reason that its purpose was to protect and preserve Aboriginal people. It is in support of the proposition that protection and preservation were the purpose of the Ordinance, that the Commonwealth pleads that it is reasonably capable of being viewed as appropriate and adapted [F327] , or, alternatively, that it was appropriate and adapted to achieving that purpose. And in this regard, the Commonwealth contends that issues of appropriate adaptation are to be determined by reference to the standards and perceptions of the period in which the Ordinance operated, not those of the present day.

I have earlier described the freedoms of movement and of association as subsidiary to the freedom of political communication required for the maintenance of the system of representative government for which the Constitution provides. They are subsidiary only in the sense that they support and supplement that latter freedom and not in the sense that they are inferior to or less robust than it. On the contrary, their nature is such that, although, as will later appear, the test which determines whether or not they have been infringed is the same as that applicable in the case of the implied freedom of political discussion, the circumstances in which a law may validly restrict freedom of movement and discussion are, to some extent, more circumscribed than is the case with the implied freedom of political discussion. In this respect, it is to be noted that not every restriction on communication is a restriction on the communication of political ideas and information. On the other hand, any abridgment of the right to move in society and to associate with one's fellow citizens necessarily restricts the opportunity to obtain and impart information and ideas with respect to political matters.

In Australian Capital Television , Mason CJ drew a distinction, in relation to the implied freedom of political communication, between "restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted." [F328] Of the former, his Honour said that, "only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication." [F329] He allowed a less stringent test in the case of restrictions imposed on an activity or mode of communication, requiring only that "the restriction [be] reasonably necessary to achieve the competing public interest."

Similarly, Deane and Toohey JJ expressed the view in Australian Capital Television that "a law whose character is that of a law with respect to the prohibition or restriction of [political] communications ... will be much more difficult to justify ... than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications." [F330] And a like dichotomy was recognised by McHugh J who drew a distinction between "laws which restrict the freedom of electoral communications by prohibiting or regulating their contents and laws which incidentally limit that freedom by regulating the time, place or manner of communication." [F331] As to the former, his Honour said that they "[could] only be upheld on grounds of compelling justification", whereas the latter could be upheld if "designed to protect some competing aspect of the public interest and the restraint ... [was] not disproportionate to the end sought to be achieved." [F332]

In Nationwide News , I expressed the view, by reference to what I said in Australian Capital Television , that a law which restricts political communication is valid "only if its purpose is not to impair freedom [of political communication], but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end." [F333]

The various formulations in Australian Capital Television and in Nationwide News point to but one test of a law which restricts political communication; namely, whether the purpose of the law in question is to prohibit or restrict political communication. Questions directed to compelling justification, necessity and proportionality are, at base, questions directed to ascertaining the purpose of the law in question.

As earlier indicated, the purpose of a law is to be ascertained by its nature, its operation and the facts with which it deals. In ascertaining that purpose, a law which is, in terms, a prohibition or restriction on political communication or which operates directly to prevent or curtail discussion of political matters is, in my view, to be taken to have that purpose unless the prohibition or restriction is necessary for the attainment of some overriding public purpose (for example, to prevent criminal conspiracies) or, in terms used by Deane J in Cunliffe v. The Commonwealth , to satisfy some "pressing social need" [F334] (for example, to prevent sedition). Whether a law is necessary for some such purpose depends on whether it is "no more than is proportionate to the legitimate aim pursued" [F335] . That in turn depends on whether less drastic measures are available [F336] . On the other hand, a law with respect to some subject-matter unconnected with the discussion of political matters and which only incidentally impinges on the freedom of that discussion, is not to be taken to be a law for the purpose of restricting that freedom if it is reasonably appropriate and adapted or, which is the same thing, proportionate to some legitimate purpose connected with that other subject-matter.

In my view, the test applicable in the case of the implied freedom of political communication is equally applicable to the subsidiary freedoms of movement and association which support that freedom, namely, whether the purpose of the law in question is to restrict those freedoms. Although the test is the same, it may involve different considerations in the sense that the matters of public importance or pressing social need which will justify a law restricting freedom of movement or of association will ordinarily be of a different nature from those which justify a law restricting political communication. Similarly, different considerations may be brought into play where the question is one of proportionality.

It is necessary now to turn to the terms and operation of the Ordinance. Sections 6 and 16 conferred powers on the Chief Protector and, later, the Director which, if exercised, operated directly to prevent freedom of movement and of association. Moreover, they were couched in terms directly contrary to those freedoms, s 6 conferring a power to take people into custody and s 16 conferring power to cause Aboriginal people to be "kept within the boundaries of ... reserve[s] or aboriginal institution[s]". Similarly, the power conferred by s 67(1)(c) to make regulations "enabling any aboriginal or half-caste child to be sent to and detained in an Aboriginal Institution or Industrial School" permitted regulations which directly prevented freedom of movement and of association. Indeed, it only permitted regulations of that kind. Accordingly, in my view, s 6 (to the extent that it authorised the taking of people into custody), and ss 16 and 67(1)(c) were only valid if necessary for the attainment of some overriding public purpose or for the satisfaction of some pressing social need.

Because s 6 (to the extent that it authorised the taking of people into custody) and ss 16 and 67(1)(c) were only valid if necessary for the attainment of some overriding public purpose or the satisfaction of some public need, the Commonwealth's plea that the Ordinance is or is reasonably capable of being viewed as appropriate and adapted to preserving and protecting Aboriginal people provides no answer to the question whether it infringed constitutional freedoms.

If it could be said that the Ordinance was necessary for the preservation or protection of Aboriginal people, it would follow that it was valid in its entirety. However, the Commonwealth asserts no such necessity. Moreover, there is no basis on which it could be said that those provisions of the Ordinance which authorised action impairing the rights of Aboriginal people to move in society and to associate with their fellow citizens, including their fellow Aboriginal Australians, were in any way necessary for the protection or preservation of Aboriginal people or, indeed, those Aboriginal people whose rights in that regard were, in fact, curtailed. Certainly, the powers conferred on the Chief Protector and, later, the Director by ss 6 and 16 were not conditioned on any necessity to take Aboriginal people into custody or to keep and detain them in reserves and institutions for their protection or preservation.

Nor were the powers conferred by ss 6 and 16 of the Ordinance conditioned on the formation of an opinion that their exercise was necessary to protect or preserve Aboriginal people. On the contrary, the power conferred by s 16 extended to all Aboriginals, except those falling within the limited categories specified in sub-s (3), and was entirely at large; the exercise of the power conferred by s 6(1) to take people into custody was subject only to the formation of an opinion by the Chief Protector and, later, the Director that it was "necessary or desirable in the interests of the aboriginal or half-caste for him to do so". Interesting questions might have arisen had the power been conditioned on the formation of an opinion that it was necessary to undertake the custody of the person concerned for his or her welfare. However s 6(1) cannot be read in that way. Nor can it be read down to operate in that way: that would be to give it an entirely different operation. Further, the regulation making power conferred by s 67(1)(c) was not conditioned by reference to any necessity to protect or preserve any of the Aboriginal people of the Northern Territory.

It follows in my view that s 6, so far as it conferred authority to take people into custody, and ss 16 and 67(1)(c) were at all times invalid. As the plaintiffs complain only of their forced removal and detention in Aboriginal reserves and institutions, it is unnecessary to consider whether other provisions of the Ordinance which did not impinge on their freedom of movement and association were also invalid. So far as concerns the Administration Act, its general provisions can and should be read as conferring power subject to the Constitution. So read, no question arises as to its validity.

The Commonwealth's plea: purpose and proportionality of the Ordinance in relation to s 116 of the Constitution

As earlier indicated there are two questions which arise with respect to this aspect of the case. The first is whether, in terms of s 116, the Ordinance was a law "prohibiting the free exercise of any religion". The second is whether it was a law made for that purpose. Both questions assume that the Aboriginal people of the Northern Territory, or at least some of them, had beliefs or practices which are properly classified as a religion for the purposes of s 116. Although there are some statements in the decided cases to the effect that Aboriginal beliefs are properly classified as religious beliefs [F337] , that is a question which involves factual considerations and cannot be determined at this stage of the proceedings. For present purposes, however, that issue may be assumed in favour of the plaintiffs. On the basis of that assumption, it is possible to turn to the first question of law raised by s 116, namely, whether the Ordinance was a law "prohibiting" the exercise of religion.

The expression "prohibiting the free exercise of any religion" suggests that, in that respect, s 116 is concerned only with laws which, in terms, ban religious practices or otherwise forbid the free exercise of religion. Some support for that view is to be found in the statement of Griffith CJ in Krygger v. Williams that "a law requiring a man to do an act which his religion forbids [might] be objectionable on moral grounds, but it does not come within the prohibition of s 116" [F338] . Moreover, as Barwick CJ pointed out in Attorney-General (Vict); Ex rel Black v. The Commonwealth , s 116 is directed to "the making of law", not "the administration of a law" [F339] .

There are two matters, one textual, the other contextual, which in my view, tell against construing s 116 as applying only to laws which, in terms, ban religious practices or otherwise prohibit the free exercise of religion. First, s 116 speaks of the exercise of religion, and it follows, as Latham CJ pointed out in Adelaide Company of Jehovah's Witnesses Inc , that "it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion." [F340] The contextual consideration is that, putting s 122 to one side, the Commonwealth has no power to legislate with respect to religion [F341] , and, thus, a law which, in terms, prohibits religious practice would, ordinarily, not be a law on a subject-matter with respect to which the Commonwealth has any power to legislate. These considerations provide powerful support for the view that s 116 was intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it.

Another matter which points in favour of construing s 116 as extending to laws which prevent the free exercise of religion, not merely those which, in terms, effect a prohibition in that regard, is the need to construe constitutional guarantees liberally, even limited guarantees of the kind effected by s 116. In this respect, it is inconsistent with established principles of constitutional construction to construe constitutional guarantees as concerned with form rather than substance [F342] . So too, it is inconsistent with established principle to interpret constitutional guarantees "pedantically" [F343] so that they may be circumvented by legislative provisions which purport to do indirectly what cannot be done directly [F344] .

The matters to which reference has been made compel the conclusion that s 116 extends to laws which prevent the free exercise of religion. And the need to construe guarantees so that they are not circumvented by allowing to be done indirectly what cannot be done directly has the consequence that s 116 extends to provisions which authorise acts which prevent the free exercise of religion, not merely provisions which operate of their own force to prevent that exercise.

Again, the question whether the Ordinance authorised acts which prevented the free exercise of religion involves factual issues which cannot presently be determined. However, if Aboriginal people had practices and beliefs which are properly characterised as a religion for the purposes of s 116, and if, as would seem likely, those practices were carried out in association with other members of the Aboriginal community to which they belonged or at sacred sites or other places on their traditional lands, removal from their communities and their traditional lands would, necessarily, have prevented the free exercise of their religion. Whether or not that was the case remains to be decided. But on the assumption that it was, the question arises whether the Ordinance was a law "for prohibiting the free exercise of any religion".

In Adelaide Company of Jehovah's Witnesses Inc , Latham CJ observed in relation to s 116 that "[t]he word `for' shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character." [F345] In my view, that is not entirely accurate. The use of the word "for" indicates that purpose is the criterion and the sole criterion selected by s 116 for invalidity. Thus, purpose must be taken into account. Further, it is the only matter to be taken into account in determining whether a law infringes s 116.

In emphasising that purpose is the criterion selected by s 116, I do not overlook observations to the effect, for example, that s 116 is not infringed by laws which "prevent persons or bodies from disseminating subversive principles or doctrines or those prejudicial to the defence of the Commonwealth or the efficient prosecution of the war" [F346] or that "[i]t is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community." [F347] Those statements are undoubtedly correct. However, they do not state the criterion of invalidity selected by s 116. It is purpose, not the continued existence of society, which that provision selects as the mechanism by which "to reconcile religious freedom with ordered government." [F348]

In Attorney-General (Vict); Ex rel Black , Barwick CJ expressed the view, in relation to that part of s 116 which protects against laws "for establishing any religion", that for "[a] law to satisfy [that] description [it] must have that objective as its express and ... single purpose." [F349] If that is correct, it is because of what is involved in the notion of "establishing [a] religion". Certainly, that notion involves something conceptually different from "imposing ... religious observance", "prohibiting the free exercise of any religion" or requiring religious tests "as a qualification for ... office or public trust under the Commonwealth", they being the other matters against which s 116 protects. Moreover, s 116 is not, in terms, directed to laws the express and single purpose of which offends one or other of its proscriptions. Rather, its terms are sufficiently wide to encompass any law which has a proscribed purpose. And the principles of construction to which reference has been made require that, save, perhaps, in its application to laws "for establishing [a] religion", s 116 be so interpreted lest it be robbed of its efficacy.

It is convenient now to turn to the Commonwealth's plea that the purpose of the Ordinance was "the protection and preservation of persons of the Aboriginal race" and the issues raised by Q 3. Clearly, a law may have more than one purpose. Similarly, a particular purpose may be subsumed in a larger or more general purpose. That latter proposition is well illustrated by the present case. It is clear from the terms of the Ordinance that one of its purposes, evident from the terms of s 16, was to remove Aboriginal and half-caste people to and keep them in Aboriginal reserves and institutions. That purpose is not necessarily inconsistent with the more general purpose which the Commonwealth asserts. And neither purpose is necessarily inconsistent with the purpose of removing Aboriginal children from their families and communities, thereby preventing them from participating in community practices. Indeed, in the absence of some overriding social or humanitarian need - and none is asserted - it might well be concluded that one purpose of the power conferred by s 16 of the Ordinance was to remove Aboriginal and half-caste children from their communities and, thus, prevent their participation in community practices. And if those practices included religious practices, that purpose necessarily extended to prohibiting the free exercise of religion.

As with the implied freedom of political communication and the implied freedoms of movement and association, a law will not be a law for "prohibiting the free exercise of any religion", notwithstanding that, in terms, it does just that or that it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need. Nor will it have that purpose if it is a law for some specific purpose unconnected with the free exercise of religion and only incidentally affects that freedom. It is not pleaded in the present case either that the Ordinance was necessary for the protection or preservation of Aboriginal people or that its purpose was a purpose unconnected with the free exercise of religion. The plea is, thus, no answer to the plaintiffs' claim that the Ordinance was invalid by reason that it infringed s 116.

Were the Commonwealth to further amend its Defence to assert that the purpose of protecting and preserving Aboriginal people was unconnected with the purpose of prohibiting the free exercise of religion, a question might arise, if the plea were to be made good, whether the interference with religious freedom, if any, effected by the Ordinance was appropriate and adapted or, which is the same thing, proportionate to the protection and preservation of those people. And as the purpose of a law is to be determined by reference to "the facts with which it deals" [F350] , that question would necessarily have to be answered by reference to the conditions of the time in which it operated. However, the answer to the question depends on an analysis of the law's operation, not on subjective views and perceptions.

It follows that the matters pleaded by the Commonwealth and referred to in Q 3 are not relevant to the question whether the Ordinance infringed s 116. Whether the Ordinance was invalid on that account is not a matter that can presently be determined.

Application of Limitation Laws

The seventh question reserved by the Chief Justice asks whether the plaintiffs' claims for damages are statute- barred and, if so, by what statute. I have earlier indicated that, in my view, there is no constitutional cause of action as asserted by the plaintiffs and, thus, Q 7 only arises in relation to their common law claims.

There are certain matters which should be noted at the outset. First, although the Parliament has power, pursuant to s 78 of the Constitution, to "make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power [of the Commonwealth]", it has not at any stage enacted a general statute of limitations with respect to those matters. Nor has it exercised the express incidental power conferred by s 51(xxxix) of the Constitution to enact a general statute of limitations with respect to those or other matters falling within the judicial power of the Commonwealth. Further, no general limitation law has been enacted pursuant to s 122 of the Constitution, whether by the Parliament of the Commonwealth or by the legislatures of the Australian Capital Territory or the Northern Territory, which purports, in terms, to apply to actions brought against the Commonwealth in this Court with respect to acts or events occurring in a Territory. Moreover, it is well settled that State laws cannot apply of their own force to proceedings in this Court [F351] . Thus, it is common ground that, if there is a limitation provision applicable in this case, it is one that is made applicable by the Judiciary Act 1903 (Cth) ("the Judiciary Act").

The relevant provisions of the Judiciary Act are ss 56(1), 64, 79 and 80. Section 56(1) allows that a suit may be brought against the Commonwealth in this Court, in a court of the State or Territory in which the claim arose or, if it did not arise in a State or Territory, any other court of competent jurisdiction of a State or Territory. It was suggested by Windeyer J in Suehle v. The Commonwealth that s 56 of the Judiciary Act directs that an action against the Commonwealth "is to be tried according to the lex loci delicti; and when the action is brought in this Court that becomes the lex fori." [F352] However, the Commonwealth does not contend that s 56 has any relevant operation in this case. Nor does it argue that s 80 is relevant. It does argue, however, that ss 64 and 79 of the Judiciary Act operate so as to make the Limitation Act 1981 (NT) ("the NT Limitation Act") applicable to the plaintiffs' claims.

Before turning to ss 64 and 79 of the Judiciary Act, it is convenient that I indicate my view with respect to ss 56 and 80. Despite the observation of Windeyer J in Suehle v. The Commonwealth [F353] , s 56 does not, in my view, operate to require application of the laws of the State or Territory in which the events giving rise to a claim against the Commonwealth occur. As the parties do not contend otherwise, it is unnecessary to state the reasons which lead me to that view [F354] . I do, however, think that, in the absence of Commonwealth legislation on the subject, it is the common law in Australia that determines the body of law, including limitation provisions, to be applied in matters of federal jurisdiction and that the effect of s 80 is to require application of that body of law before resort is had to s 79 [F355] . In this respect, it should be noted that s 79 operates "except as otherwise provided by the Constitution [and] the laws of the Commonwealth" which, necessarily include s 80 [F356] . However, as the view which I take with respect to s 80 does not lead to any different result in this case, it is convenient to proceed on the basis that it has no application and that the question whether the plaintiffs' actions are statute-barred is to be answered by resort to ss 64 and 79.

Section 64 of the Judiciary Act relevantly provides that, in any suit to which the Commonwealth is a party, "the rights of parties shall as nearly as possible be the same ... as in a suit between subject and subject." Section 79 of the Judiciary Act provides:

"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

It is convenient to set out the steps in the Commonwealth's argument that the NT Limitation Act applies to the plaintiffs' claims. The first step is to argue that s 79 of the Judiciary Act applies to this Court; the second is to contend that s 79 "picks up" for each action the laws of the State or Territory in which is located the Registry of the Court in which that particular action was commenced; the third step is to say that in the first action, which was commenced in the Melbourne Registry, s 79 picks up the Choice of Law (Limitation Periods) Act 1993 (Vic) and that that Act requires that the NT Limitation Act be applied; the fourth step is to claim that in the second action, commenced in the Darwin Registry, s 79 operates directly to pick up the NT Limitation Act. The fifth and final step is to argue that s 64 requires that the provisions of the NT Limitation Act be applied as they would be in "a suit between subject and subject." There is no doubt that if s 79 operates, either itself or by means of another law to "pick up" a limitation provision, s 64 requires that that limitation provision be applied in proceedings to which the Commonwealth is a party [F357] . However, the earlier steps in the Commonwealth's argument require analysis.

It is clear that, in terms of s 79 of the Judiciary Act, this Court is a court "exercising federal jurisdiction" [F358] . It is, however, difficult to say that it exercises jurisdiction in a State or Territory. Rather, it exercises its jurisdiction throughout Australia, sitting for that purpose in Canberra, the nation's capital, and sometimes in the States. The plaintiffs contend that because this Court exercises jurisdiction throughout Australia, the words of s 79 are not apt to apply to it. And in support of that proposition, they contend that there is no construction which can guarantee against anomalous consequences.

It cannot be denied that there are difficulties involved in the application of s 79 to proceedings in this Court. Those difficulties have, on occasions, led to the view that s 79 operates to "pick up" the laws of the State or Territory in which is located the Registry in which proceedings are commenced [F359] . Certainly, that approach has or may have anomalous consequences, as noted by Deane J in McKain v. RW Miller & Co (SA) Pty Ltd [F360] . In that case, his Honour said of the circumstances involved in Pedersen v. Young [F361] that "[i]f, for example, the defendant [in that case] had sued the plaintiff in negligence in proceedings instituted in the Registry of this Court in the prima facie appropriate place (ie Queensland) on the day on which the plaintiff instituted the proceedings against him in New South Wales and the proceedings had been heard in Chambers, the defendant's action would have been barred but the plaintiff's would not, notwithstanding that both actions arose out of the same accident and had been instituted in the same court on the same day."

It may be that the anomalous consequences adverted to by Deane J in McKain v. RW Miller & Co (SA) Pty Ltd have now been avoided, if not completely, to a very significant extent, by the enactment, in recent years, of uniform State and Territory laws directing that, if the substantive law of another State or Territory applies to a claim before a court, the limitation laws of that other State or Territory are to be treated as part of its substantive law and are to be applied accordingly [F362] . At least that would seem to be the case if those laws are capable of being "picked up" by s 79 - a question which remains to be considered. However, even if they are "picked up", other anomalies may well arise if s 79 is construed as "picking up" State and Territory laws by reference to the location of the Registry in which proceedings are commenced.

It has also been suggested that s 79 of the Judiciary Act operates to "pick up" the laws of the State or Territory in which an action is "heard and determined" [F363] . And, because actions may be heard in one State or Territory and judgment delivered in another, it has been said that s 79 operates to pick up the laws of the State or Territory in which the Court sits to hear the matter [F364] . And, in Parker v. The Commonwealth , Windeyer J seems to have entertained the possibility that s 79 might operate to pick up the laws of the State or Territory in which judgment is delivered [F365] . It cannot be doubted that, if s 79 operates in any of these ways, it may well produce "capricious result[s]" [F366] . Moreover, as Windeyer J remarked in Pedersen v. Young , answers to the various questions raised with respect to s 79 in its application to proceedings in this Court which are "logically satisfying [are] not readily apparent" [F367] . Even so, to construe s 79 as not applying to this Court would be to risk greater anomalies and, perhaps, more capricious consequences than those which result from its application. At least that is so if, as has been assumed, s 80 has no role to play in determining whether an action is statute-barred.

As already indicated, s 56 of the Judiciary Act does not, in my view, impliedly direct that the law of the State or Territory in which the events in question occurred should be applied in actions against the Commonwealth. But even if it does, there is no like implication to be drawn in cases in which the events did not occur in a State or Territory, a possibility acknowledged by the terms of s 56(1)(c). And there is no provision giving rise to an implication of that kind in an action between subject and subject, as occurs when proceedings are brought in this Court between residents of different States [F368] . Putting s 118 of the Constitution to one side [F369] , no provision of the Constitution and no law of the Commonwealth provides directly as to the law to be applied in such cases. And, of course, that was the case when the Judiciary Act was enacted in 1903. In that context and on the assumption that s 80 has no role to play in determining the law to be applied in matters such as the present, s 79 must, in my view, be construed as intended to apply to this Court, notwithstanding that its language does not adequately reflect the nature of its jurisdiction or the manner of its exercise and notwithstanding the difficulties inevitably involved in its application.

As appears from what has been said with respect to the application of s 79, there are various problems associated with the meaning to be attributed to the phrase "exercising federal jurisdiction in [a] State or Territory". In its application to this Court, that phrase does not, as a matter of ordinary language, direct attention to the State or Territory in which is located the Registry in which proceedings are commenced. Of the various possibilities to which reference has been made, the hearing and determination of the matter in issue most nearly equates with the expression "exercising federal jurisdiction". Accordingly, I would interpret s 79, in its application to this Court, as "picking up" the laws of the State or Territory in which a matter is heard and determined.

Should it occur that a matter is heard in one place and is to be determined in another, pragmatic considerations dictate that, in its application to this Court, s 79 operates to pick up the laws of the State or Territory in which the matter is heard. How else can the parties know on what basis their case should be conducted? And, if the Court were to hear the matter in more than one State or Territory, the same pragmatic considerations require that s 79 be applied to pick up the law of the State or Territory in which the Court first sits to hear the substance of the matter, unless it is clear that the Court will later sit in a State or Territory more closely connected with the matter.

This matter was heard and, so far as concerns the questions reserved by the Chief Justice, will be determined in Canberra. Thus, s 79 operates to pick up the relevant laws of the Australian Capital Territory, including its choice of law rules [F370] . It is not in issue that, in actions in tort, the choice of law rules of all States and Territories direct application of the lex loci delicti. In this regard, it is sufficient to note that that is the effect of the decision in Breavington v. Godleman [F371] and there is nothing in the judgments in McKain v. RW Miller & Co (SA) Pty Ltd [F372] to suggest that, in that respect, Breavington v. Godleman was wrongly decided [F373] . Thus, the substantive law to be applied in this case is the law of the Northern Territory, as required by the choice of law rules of the Australian Capital Territory which are "picked up" by s 79 of the Judiciary Act. And prima facie, at least, s 79 also "picks up" s 56 of the Limitation Act 1985 (ACT) ("the ACT Limitation Act") which provides that:

"If the substantive law of another place being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court."

The plaintiffs contend, by reason of the reference in s 56 of the ACT Limitation Act to "a court of the Territory", that that provision relates to courts of the Australian Capital Territory and, thus, cannot be applied to proceedings in this Court. In support of that proposition they rely on the statement by Kitto J in Pedersen v. Young that s 79 "does not purport to do more than pick up State laws with their meaning unchanged" [F374] . They also rely on Commissioner of Stamp Duties (NSW) v. Owens [No 2] [F375] in which it was said:

" Whether or not s 79 applies to the appellate jurisdiction of this Court, it is no part of its purpose to pick up, so to speak, a provision of State law imposing on State courts such a function as that assigned to them by s 6(1) [of the Suitors' Fund Act 1951 (NSW)] and convert it into a provision imposing a like function on federal courts."

There may be statutory provisions couched in terms which make it impossible for them to be "picked up" by s 79 of the Judiciary Act. Similarly, there may be provisions which impose functions which are beyond the reach of s 79. Even so, I see no reason why s 79 cannot "pick up" limitation laws or other statutory provisions merely because they are expressed in terms applying specifically to State or Territory Courts. Rather, as Gibbs J noted in John Robertson & Co Ltd v. Ferguson Transformers Pty Ltd [F376] :

"If the laws of a State could not apply if, upon their true construction ... they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law."

The reference in s 79 of the Judiciary Act to State and Territory "laws relating to procedure, evidence, and the competency of witnesses" compels the conclusion that s 79 requires State and Territory laws to be applied "[on] the hypothesis that federal courts do not necessarily lie outside their field of application." [F377] On that hypothesis, s 56 of the ACT Limitation Act is capable of being "picked up" by s 79. It thus applies in these proceedings and, when applied, it renders the NT Limitation Act applicable to the plaintiffs' claims.

It is necessary to mention that, in certain circumstances, s 44 of the NT Limitation Act confers power to extend the limitation periods fixed by that Act. No argument was directed to the question whether s 44 applies to these cases and, if so, whether the power to extend time should be exercised in favour of the plaintiffs. It is, thus, inappropriate to consider whether the plaintiffs' actions are statute-barred.

Answers to Questions

In each matter, the questions reserved by the Chief Justice should be answered as follows:

Q1 The legislative power conferred by s 122 of the Constitution is so restricted by implied freedoms of movement and association as to invalidate s 6(1), (so far as it conferred power to take people into custody), and ss 16 and 67(1)(c) of the Aboriginals Ordinance 1918 (NT). It is also restricted by s 116 of the Constitution, although it is not possible to say at this stage of the proceedings whether the Ordinance was also invalid on that account.

Q2 No.

Q3 None of the matters are relevant.

Q4 Does not arise.

Q5 Does not arise.

Q6 Does not arise.

Q7(a) Inappropriate to answer.

(b) Strictly does not arise, but the Limitation Act 1981 (NT) is made applicable to the plaintiffs' actions by operation of ss 64 and 79 of the Judiciary Act 1903.

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