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

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow

Kirby JJ

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

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

Judgment date: 14 AUGUST 1997

Judgment by:
Kirby J

In Nelungaloo Pty Ltd v. The Commonwealth ^[F366] , Kitto J remarked:

"The decisions of the Court on s 51(xxxi) have been comparatively few, and the judgments that have been delivered have revealed the existence of serious problems still to be faced."

Many of the serious problems remain for consideration forty-five years later. The important constitutional question arising in these proceedings concerns the relationship between the territories power ^[F367] in the Constitution and the express power for the acquisition of property ^[F368] to which Kitto J referred in Nelungaloo. The question is presented in an appeal from a decision of the Full Court of the Federal Court of Australia ^[F369] .

By majority ^[F370] , that Court reversed orders made by the primary judge ^[F371] disposing of part of an action originally commenced in this Court but remitted by it to the Federal Court ^[F372] . Excluded from the order of remittal was an application by Newcrest Mining (WA) Limited ("the first appellant") and BHP Minerals Limited ("the second appellant") claiming particular relief from the Commonwealth ("the first respondent") and the Director of National Parks and Wildlife ("the second respondent") created by the National Parks and Wildlife Conservation Act 1975 (Cth) ^[F373] ("the Conservation Act"). The relief concerned the suggested invalidity of certain provisions of the Conservation Act made in reliance (in part) upon the territories power ^[F374] . Such invalidity was said to arise because of a failure of the Act to comply with s 51(xxxi) of the Constitution.

The substantive questions, other than the fundamental constitutional one, now being returned to this Court in this appeal, the proceedings are once again brought together. The fundamental constitutional question, withheld from the order of remittal, remains to be determined. It presents an obstacle which lies across the path of the appellants' request for an affirmative answer to the question whether s 51(xxxi) applies to laws made by the Parliament under s 122 of the Constitution. That obstacle appears in the form of the unanimous holding of this Court in Teori Tau v. The Commonwealth ^[F375] . The Federal Court was bound by that decision. Hence, the exclusion from the remittal of what was, in effect, a challenge to its correctness. That challenge, reserved to this Court, is now before it for decision.

The proceedings

The facts and the applicable legislative provisions are contained in the reasons of Gummow J, in terms which I accept.

There are, as his Honour points out, particular complications with respect to two of the mining tenements (MLN 19 and MLN 24) propounded by the appellants. I agree, for the reasons which Gummow J gives, that at the relevant times ^[F376] the first appellant enjoyed no subsisting rights in respect of either of such tenements. Accordingly, in respect of them, there was no "property" to be the subject of any acquisition calling forth the suggested application of the requirement for "just terms" in s 51(xxxi) of the Constitution. That conclusion, however, leaves the remaining mining tenements, the subject of these proceedings.

By the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) ("the 1987 Act"), the Conservation Act was amended to provide that ^[F377] :

"No operations for the recovery of minerals shall be carried on in Kakadu National Park."

Whilst it is true that the first appellent's interests were not expressly acquired or extinguished by, or under, any federal law, it is also true that the creation and extension of the Kakadu National Park by federal law - encompassing, in the areas acquired, some 1,000 metres beneath the surface of the land ^[F378] - effectively deprived the first appellant of the benefit of its property in the mining tenements, principally the right to recover minerals. A notional possibility that the first appellant could tunnel more than 1,000 metres below the surface to win the mineral product without disturbing the surface of the Park can be ignored as unrealistic.

The issue was thus presented whether such prohibition against the recovery of minerals amounted in law, as it did in effect, to an acquisition of the first appellant's property. If it did, the next question was whether the law purporting to authorise that result was a valid law. Relevant to the answer to that question are the terms of s 7 of the 1987 Act which states:

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

The outcome of the prohibition on "operations for the recovery of minerals" ^[F379] in the Kakadu National Park was, in my view, an acquisition of the first appellant's remaining mining tenements. It was an event which had occurred "by reason of the enactment of" the 1987 Act ^[F380] . If s 7 of the 1987 Act is valid it purportedly exempted the Commonwealth from any liability to pay compensation to the appellants for such acquisition. Hence the appellants' assertion of invalidity based upon the constitutional requirement of just terms.

Pause for a moment to reflect upon the result of the impugned legislation, if valid. It is one thing to expand a National Park for the benefit of everyone who will enjoy its facility. It is another to do so at an economic cost to the owners of valuable property interests in sections of the Park whose rights are effectively confiscated to achieve that end. Ordinarily, at least under federal law, the expansion of areas for public use is carried out at the price of compensating justly those private individuals who lose their property interests in order to contribute to the greater public good. It is possible that the operation of the Constitution and the applicable federal legislation might result in such an uncompensated acquisition. That, after all, could certainly occur, so far as the Constitution is concerned, in respect of acquisitions of property under State law which is not subject to the "just terms" requirement of s 51(xxxi) ^[F381] . If the correct interpretation of the Constitution requires such a result, this Court must give effect to it. It must do so whatever opinions might be held concerning the justice or fairness or propriety of obliging selected property holders to suffer uncompensated losses for the benefit of the community as a whole.

Nevertheless, the result of such a course is so manifestly unjust that the mind inclines against an interpretation of the Constitution which has that consequence. At least it does so if another interpretation, which avoids it, is available. I shall return to this consideration towards the end of these reasons. But first, it is necessary, as the appellants ask, to consider whether the decision of the Court in Teori Tau ^[F382] , which holds that s 51(xxxi) does not apply to a law validly made under s 122 of the Constitution, was correctly decided. If it was and if it applies, it is necessary to examine the narrower, approach which has commended itself in this case to Toohey J and, as an additional ground, to Gaudron and Gummow JJ as a result of the way in which the Conservation Act invokes a collection of federal heads of power to support its constitutional validity ^[F383] .

Because of the constitutional importance of the relationship between s 51(xxxi) and s 122, the differences which have now emerged in the opinions in this Court and the full argument of the parties, I propose to address first the authority in Teori Tau. I shall then return to the alternative, or additional, approach and express my view upon it.

Compulsory acquisitions in the territories

Section 51(xxxi) of the Constitution appears in Pt v. of Ch I providing for the powers of the Federal Parliament. The paragraph states:

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

...

(xxxi)

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

Before federation, what is now the Northern Territory of Australia was "annexed to the Province of South Australia by Letters Patent in 1863" ^[F384] . After federation it came to owe its existence as a territory, within the meaning of the Constitution, to the surrender of the annexed territory by the State of South Australia ^[F385] and the acceptance of that territory by the Commonwealth in terms of legislation enacted by the Federal Parliament ^[F386] . This process of surrender and acceptance was accomplished pursuant to s 111 of the Constitution, appearing in Ch v. - "The States". The terms of that section should be noted:

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

Meaning is given to the "exclusive jurisdiction" referred to in s 111 by the provisions of s 122 of the Constitution. That section appears in Ch VI called (somewhat misleadingly) "New States". Section 122 provides:

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

Before Teori Tau , there was something of a controversy about whether an acquisition of property from any person under a law for a territory made by the Federal Parliament would attract the constitutional entitlement to just terms such that, if they were not provided, the law purporting to authorise the acquisition would be invalid to that extent. Invoking, by analogy, the suggestion in Lamshed v. Lake ^[F387] that the incidental power, expressly provided to the Parliament by s 51(xxxix) of the Constitution, could supplement the legislative power to make laws for the government of a territory, Professor P H Lane observed in 1964 ^[F388] :

"Because of the width of the power in s 122, there is just no need to turn to the legislative powers in s 51 when Parliament deals with territorial matters.

There are, however, two powers in s 51 which may apply to the territories, namely s 51(xxxi) and s 51(xxxix). The terms of the acquisition power refer as much to a defence acquisition associated with s 51(vi), for example, as they refer to a territorial acquisition related to s 122; for s 51(xxxi) confers an expropriation power 'for any purpose in respect of which the Parliament has power to make laws'; one such purpose exists in s 122. [The Constitution] s 51(xxxix) in referring to 'any power vested by this Constitution in Parliament' refers to s 122; not that we need set much store on s 51(xxxix), for whatever can be done under that power can be achieved under the incidental power implied in s 122 itself."

At about the time this view was expressed, a single judge of the Supreme Court of the Northern Territory ^[F389] decided in Kean v. The Commonwealth ^[F390] that the requirement of just terms for federal acquisitions applied to acquisitions in the territories in the same way as it would to acquisitions in the States. To be valid, the federal law authorising such acquisitions had to provide that the acquisition be on just terms. The decision in Kean was welcomed by a contemporary comment in the Australian Law Journal ^[F391] :

"The ill-considered decisions and dicta of the High Court in Buchanan v. Commonwealth ^[F392] and R v. Bernasconi ^[F393] had given rise to the possibility of a general rule that s 122 ... was not subject to other provisions of the Constitution such as the separation of judicial power required by Ch 3, the guaranteeing of religious toleration in s 116 or the requirement of just terms on acquisition of property. But doubts about that general doctrine were expressed ... by Dixon CJ in Lamshed v. Lake ^[F394] . "

Strictly speaking, the judge in Kean did not have to reach a conclusion on the application of the constitutional requirement for he found that the applicable law ^[F395] did, in fact, provide just terms. Nevertheless, in obiter remarks, he expressed the opinion that the constitutional requirement had to be observed in the Territory ^[F396] .

Dr Wynes completed the fourth edition of his text Legislative, Executive and Judicial Powers in Australia ^[F397] without the benefit of Teori Tau . In his summary of this Court's then jurisprudence relating to the territories he remarked that the extent (if at all) that other sections of the Constitution apply to, or in respect of, the territories depended upon the construction of the particular section concerned and the consideration of the operation of the Constitution as a whole. He thus concluded that some sections, eg ss 116, 118 and 92 in relation to passage through a territory, "may and probably do" apply ^[F398] . In a footnote he noticed the decision in Kean. However, he "respectfully doubt[ed] the correctness of this opinion in view of the decision in Spratt v. Hermes " ^[F399] . It was in Spratt , after Kean was decided, that this Court held that the provisions of Chapter III of the Constitution (notably s 72 with its guarantees associated with the appointment, tenure and salary for members of the federal judiciary) were not applicable to courts created by, or pursuant to, laws made under s 122 of the Constitution. That approach was later confirmed by the decision in Capital TV and Appliances Pty Ltd v. Falconer ^[F400] . Those decisions were made during a period when the Court's jurisprudence uniformly emphasised the separate and plenary nature of the powers of the Federal Parliament in making laws for the territories.

In that context the decision of the Court in Teori Tau was scarcely a surprising one. The record of argument shows that Barwick CJ (who delivered the judgment of the Court) was prepared to concede that s 122 might be subject to s 116 ^[F401] . However, his Honour suggested to counsel for the plaintiff that "that does not involve its being qualified by s 51(xxxi)" ^[F402] . Counsel submitted that the paragraph was different from others in s 51. It was a purposive power. Its language included the purpose of making laws for the territories. Counsel pointed to the anomaly which would arise if the Commonwealth could acquire property within a State for a purpose connected with the government of a territory ("such as establishing a tourist bureau" ^[F403] ) without having to provide just terms. The law report records that, following a short adjournment, Barwick CJ delivered the brief ex tempore opinion which presents the decisional obstacle to the appellants' first constitutional argument in these proceedings.

The reasons of Barwick CJ, for the Court, are cited and analysed by Gummow J. I will not repeat what his Honour has said. The essential foundation for the conclusion that there was "no doubt whatever" that the power to make laws providing for the acquisition of property in a territory was "not limited to the making of laws which provide just terms of acquisition" appears in the following passage ^[F404] :

"Section 122 of the Constitution ... is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.

...

Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter."

In the two decades since Teori Tau was decided views have occasionally been expressed in the Court which have appeared to question the fundamental assumption ^[F405] about the almost complete disjointure of s 122 from the rest of the Constitution ^[F406] . With the passage of time, later decisions of the Court have laid renewed emphasis upon the inter- relationship between s 122 and the remainder of the Constitution. Thus, in Australian Capital Television Pty Ltd v. The Commonwealth ^[F407] , the principle in Teori Tau was impliedly reserved by some of the justices ^[F408] but it was relied upon by one, at least, for his minority view ^[F409] . Whilst Teori Tau has certainly been referred to in a number of decisions of the Court since it was delivered ^[F410] , in none of these was a direct challenge to its correctness mounted.

Some commentators on Teori Tau have suggested that factors peculiar to the application of the territories power to an external territory such as Papua ^[F411] or Papua and New Guinea ^[F412] , with large indigenous populations and distinct cultural norms may have influenced, however unconsciously, the Court's decisions to quarantine that power from the rest of the Constitution. Whatever may be the force of that suggestion as a matter of unconscious psychology, it was expressly denied by Barwick CJ's closing words in Teori Tau ^[F413] :

"Our decision applies to all the territories, those on the mainland of Australia as well as those external to the continent of Australia."

Other commentators have discerned from later decisions of this Court an "ambiguous status" about Teori Tau. They have proposed that "[i]t would probably be best if the decision were overturned" ^[F414] . That is the course which the appellants urged upon the Court in these proceedings. To the extent that the Court's practice required leave ^[F415] to permit that course, the appellants sought such leave. I have, in previous decisions, expressed my doubts about the validity of this practice, however convenient it may be ^[F416] . But, clearly, any question of leave would be bound up with the merits of the respective arguments defending and criticising the holding in Teori Tau and examining the perceived requirements of the constitutional text . To these considerations I now turn.

However, I first remind myself of two observations about the approach which should be taken to the task of constitutional interpretation. In Australian National Airways Pty Ltd v. The Commonwealth , Dixon J said ^[F417] :

"[I]t is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances."

He continued ^[F418] :

"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications. It is absurd to contemplate a central government with authority over a territory and yet without power to make laws, wherever its jurisdiction may run, for the establishment, maintenance and control of communications with the territory governed. The form or language of s 122 may not be particularly felicitous but, when it is read with the entire document, the conclusion that the legislative power is extensive enough to cover such a matter seems inevitable."

In the Pay-roll Tax Case ^[F419] , Windeyer J remarked, referring to the fresh approach to the Constitution taken in the Engineers' Case ^[F420] :

"[T]he Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. ... As I see it the Engineers' Case ... looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there. That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law."

The settled authority of this Court in matters of constitutional doctrine is a specially important element in ensuring stability and predictability in the fundamental arrangements affecting government and the exercise of political power in this country. Furthermore, the text of the Constitution, being virtually unchanged and written for the most part in language of everyday use, takes succeeding generations of Justices of this Court back to a common verbal reference point. Opinions of earlier Justices about the meaning of the text are likely (to say the least) to remain correct, as a matter of textual analysis, years or even decades later. This may be especially so where, as in Teori Tau , the decision of the Court was a unanimous one and not a single justice felt constrained to propound a dissenting opinion.

However, when a challenge to an established decision comes, it is the duty of each Justice to discover the precise state of the Court's authority and then to examine the arguments of the parties and to look afresh at the constitutional text ^[F421] . He or she must study the Constitution's language, structure and implications - to see whether new insights, derived from later authority of the Court or from new occurrences "outside the law courts" upon which the Constitution must operate, suggest strongly the need to reopen established authority and to reverse an opinion which recommended itself to the Court in earlier times. Various useful rules have been propounded to assist in the decision on whether a case is one for adhering to past authority or reversing it in favour of a new principle ^[F422] . But in the end, in each case, it is a matter for judgment. In constitutional cases it is one requiring the reconciliation of the conflicting demands of loyalty to the Court's past decisions and loyalty to the constitutional text, freshly examined. Each of these demands has legitimacy. The one provides the accumulated wisdom of the past in the authoritative statements of the law. The other affords recognition of the legitimate influences upon constitutional doctrine of fresh perspectives and of "matters that might broadly be called social or political" ^[F423] .

I would reject the suggestion that the Court's response to an application to reopen past authority is controlled by the reliance which the Executive Governments or the Parliaments of the Commonwealth, the States and the Territories have placed upon past authority. There can be no estoppel against the Constitution. It not infrequently happens that a decision of the Court disturbs assumptions and invalidates significant legislation and actions important to the Executive Government. One need go no further into the past than the recent decision of the Court in Ha and Anor v. State of New South Wales ^[F424] to see that this is so. Nor is it unique for unanimous decisions to be overturned when fresh insights provide new approaches to constitutional interpretation. Thus, Cole v. Whitfield ^[F425] , concerning the meaning of s 92 of the Constitution, overthrew past doctrine stated in many decisions, several of them unanimous.

The notion that the Court should stay its hand because of the rejection of the constitutional referendum in 1988 is the least convincing reason of all. There were several connected proposals any one of which could have explained the failure to pass the constitutional alteration concerning State and Territory acquisitions of property. Typically, political factors can play a part, as they did on that occasion. I do not recall the slightest mention of Teori Tau during the referendum arguments. Far from being "comfortable" with the holding in that case, the people of Australia, it seems safe to assume, were blissfully ignorant about it and about the controversy which now falls for reasoned decision by this Court.

Nonetheless, in my view, Teori Tau does not represent an ill-considered departure from the holdings of the Court which preceded it on the scope of the territories power under the Constitution. On the contrary, the decision fits quite comfortably within a number of other decisions of the Court. These emphasised the distinctiveness of the head of power in s 122 and its separation from the other powers afforded to the Parliament to make laws. Before identifying the reasons which lead me to conclude that Teori Tau was wrongly decided, and should now be overruled, I want to acknowledge, as forcefully as I can, the persuasive power of the arguments which would sustain adherence to its holding. Only by understanding and weighing these can a correct decision be reached about the submissions of the appellants to the contrary.

Arguments for separating s 122 from s 51(xxxi)

The principal reasons, apart from those of authority, for adhering to the holding in Teori Tau are, in my opinion, these.

1.

A number of indications in the text of the Constitution are relevant and must be given weight. The provisions of ss 51(xxxi) and 122 appear in separate Chapters of the Constitution. Whilst it is true that both s 51 and s 122 empower the making of laws by the Parliament, the collection of the powers in s 51 is specific and limited as to subject matter. The power under s 122 is not limited in subject matter but only by reference to geography and object. The phrase used in s 51(xxxi) "for any purpose in respect of which the Parliament has power to make laws" represents the exact formula used in the opening words of s 51 and s 52. There is no reference in s 122 to the Parliament's "power to make laws". Had it been intended to subsume acquisitions of property made pursuant to the territories power within the regime established by s 51(xxxi), it might have been expected that such power would have appeared as a paragraph in s 51 or s 52. As Gummow J has pointed out, it was proposed at the Melbourne Convention in 1898 that s 122 be placed in what became s 52. Instead, it was placed in Ch VI. This separation gives a measure of support to its suggested character as "unlimited and unqualified in point of subject matter" ^[F426] . It helps to explain why the territories power has sometimes been described as being "of a different order" ^[F427] from the legislative powers appearing elsewhere, notably in s 51.

2.

The textual expression and arrangement of the Constitution also help to explain why the power to make laws under s 122 has been repeatedly described as plenary ^[F428] . The "plenary" character is given emphasis by the omission from s 122 of the phrase "subject to this Constitution". That phrase appears in the opening words of the grants of legislative power in ss 51 and 52. Had it been intended to submit acquisitions effected under the territories power to the requirement established by s 51(xxxi), it might have been expected that the familiar words of cross-reference would have been used. They were not. The grant of power by s 122 to make "laws for the government of any territory" must be taken to include a power to legislate for the compulsory acquisition of property. Such power is, as it was in 1901, an essential feature of "government". Whatever doubts were thought to exist as to the capacity of the specific heads of power in s 51 to sustain compulsory acquisition of property by the Commonwealth for its non-territorial functions, such doubts could not exist in respect of the plenary grant of power in s 122. The "government of any territory" could not be conducted without a power, where necessary, to acquire property by compulsion for such governmental purposes. In 1901 the power of acquisition by statute was fully accepted for the provision of roads, railways, post offices, court houses and the other essential services of government. Even more so today, as governmental purposes have expanded, the words of s 122 must, by necessary implication, carry an acquisition power. But whereas that power is expressly qualified in s 51(xxxi) by the requirement that the acquisition be "on just terms", no such express qualification has been included in the terms of s 122.

3.

An explanation for this differentiation may exist in the history of s 51(xxxi). The location of the provision in the list of the Commonwealth's legislative powers suggests that it was not conceived of as a constraint on power but as an affirmative contribution to that power, although on the condition stated. In their text of 1901, Quick and Garran explained that the addition of the provision was proposed at the 1898 session of the Constitutional Convention to overcome doubts which were expressed that the proposed Federal Parliament would not have "a right of eminent domain for federal purposes" ^[F429] . The Framers had recourse to the provisions of the Fifth Amendment to the United States Constitution. The terms of s 51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms" ^[F430] . The function of the paragraph as a grant of federal power has long been accepted by this Court ^[F431] . The function of s 122 is different. It was not part of the assignment of powers as between the new federal polity and the States, which was the general concern of s 51. To that extent the territories power in s 122 has been described as "non-federal" in its essential character ^[F432] . Similarly, the territories have been described as not being "part of the Federal system" ^[F433] . The federal compact between the former colonies and the new Commonwealth was to be contained in the first five Chapters of the Constitution. They established a "special universe of discourse" ^[F434] . Upon this view, s 122, found in Ch VI, deals with a fundamentally different topic entirely within the Commonwealth's governmental concerns ^[F435] .

It was the realisation that the power to make laws for the government of the territories stood outside the federal system that led Kitto J in Spratt v. Hermes ^[F436] to "recant" ^[F437] the opinion which he had earlier expressed in Lamshed v. Lake ^[F438] . Whilst for some purposes a territory was part of the Commonwealth, for the purposes of the limitations placed upon the powers of the Federal Parliament under the federal compact with the States, s 122 was to be viewed as separate and distinct. Some textual support for this view exists in the language of s 51(xxxi). The paragraph refers expressly to "acquisition ... from any State or person". There is no reference to acquisition by or from a territory. The words lend some support to the view that such acquisitions were to be regarded as exclusively within the power granted by s 122.

4.

Further reinforcement for this view emerges from the nature of the power granted by s 122. It is, in effect, a power to establish local government in the territories. By analogy with the States in their own domain, it is therefore an entire grant. There is no requirement that it be subject to limitations, qualifications or conditions thought proper with respect to the new federal polity in its relationship to the States and persons within such States ^[F439] . Just as the States are not now, any more than they were in 1901, subject to entrenched constitutional requirements to provide just terms for the acquisition of property, so the grant of power to the Commonwealth had no such limitations, qualifications or conditions in the territories.

5.

Nor can it be said that Teori Tau stands as an anomalous exception to the Court's jurisprudence with respect to the s 122 power. On the contrary, it is consistent with a series of decisions which emphasise the unique nature of s 122 and the legislative power which it affords. In Buchanan v. The Commonwealth ^[F440] it was held that the limitations imposed by s 55 of the Constitution on the making of laws imposing taxation applied only to laws made under the power conferred by s 51(ii). It did not apply to a law made under s 122. Accordingly, the requirements of s 55 of the Constitution were inapplicable in a territory. In R v. Bernasconi ^[F441] it was held that the protections of s 80 did not apply to a law made under s 122. In Lamshed v. Lake ^[F442] it was held that s 92 was not applicable to trade, commerce and intercourse between a territory and a State. In Spratt v. Hermes ^[F443] it was held that the guarantees in s 72 with respect to the appointment, tenure and salary of members of the federal judiciary were not applicable to courts created by, or pursuant to, laws made under s 122. In Capital TV and Appliances Pty Ltd v. Falconer ^[F444] it was held that the Supreme Court of the Australian Capital Territory was not a federal court, nor a court exercising federal jurisdiction and, accordingly, that this Court had no jurisdiction, pursuant to s 73, to entertain an appeal from it. In Svikart v. Stewart ^[F445] , it was held that s 52(i) did not apply to places in the Northern Territory acquired by the Commonwealth for public purposes. There are other cases in the same line ^[F446] . Moreover, the correctness of the Court's holding in Teori Tau has either been implicitly or expressly accepted in later decisions ^[F447] .

Insofar as dicta of the Court disclaim the theory that territories are "disjoined from the rest of the Constitution" ^[F448] such disjunction is refuted except in respect of lawmaking power for the territories or where provisions of the Constitution are, in terms, apt to apply only to the States ^[F449] . Insofar as more recent decisions of the Court have raised questions about the scope of s 122 and its relationship with the other provisions of the Constitution ^[F450] and the implications therefrom ^[F451] , these decisions may be supported by the proponents of Teori Tau by the particular matters they dealt with. Notably, the holding that s 90 of the Constitution (within Ch IV) precludes the Legislative Assembly of a territory, established pursuant to s 122, from imposing duties of excise is explained by the suggested distinction between the express prohibition in s 90 and the restriction on the exercise of federal power in s 51(xxxi).

Various other arguments for holding to Teori Tau are collected in the opinions of Brennan CJ, Dawson and McHugh JJ in this matter. Some of them lay emphasis on the supposed consequences of the opposite theory for the validity of grants of freehold or leasehold title made by the Commonwealth in the Northern Territory after 1911. For the reasons given by Gummow J, I am not convinced that these apprehensions are well founded. If they were, yet were the consequences of the operation of the Constitution properly understood, they could not provide a reason for withholding the meaning which the text required. They would be a reason for hesitation to depart from established authority and for requiring convincing argument to reach the alternative view.

But the history of constitutional interpretation in this country, as elsewhere, has been marked by several instances when the holding of the Court has obliged significant rearrangements and readjustments in the rights and duties of those affected by its decisions. This is no more than the application of the rule of law in the constitutional context.

I have taken the pains to mention the foregoing arguments because I do not consider that Teori Tau can be discarded as a mere anomaly in this Court's jurisprudence. If the holding in that case is now to be overruled, this should be done in full recognition of its lineage: appreciating and accepting the significant implications, legal and otherwise, of that course.

Application of s 51(xxxi) to territory laws under s 122

I accept the force of the preceding arguments of a decisional, textual and historical kind. Nevertheless, with respect to the contrary view, I have concluded that the correct interpretation of the constitutional text requires the application of the "just terms" requirement of laws for the acquisition of property by the Commonwealth from a person as much in a territory as elsewhere in Australia. The error of the contrary opinion is such as to authorise, and require, the reversal of the Court's holding in Teori Tau. It necessitates the establishment of the correct constitutional doctrine. To the extent that leave is required to overrule Teori Tau , it should be granted. My essential reasons are as follows:

1.

The text of s 51(xxxi), as a matter of language, is apt to include an acquisition pursuant to a federal law made under s 122. The paragraph refers to acquisitions for any purpose "in respect of which the Parliament has power to make laws". Whilst it is true that ss 51 and 52 contain such law-making powers, s 122 likewise does. That section refers to the same law-making organ. The absence of the word "power" from the formula in s 122 is inconsequential, for legislative power there clearly is. The "Parliament" signified in s 51(xxxi) is the same Parliament as is empowered to make laws under s 122. There is thus an explicit control upon the law- making of that Parliament which is not, in terms, confined to law- making outside the territory. Whilst this approach did not commend itself to the Court in Teori Tau , its rejection effectively endorsed the view that s 122 is "disjoined from the rest of the Constitution" as Dixon J said it could not be ^[F452] . It is much more persuasive and, I think, orthodox constitutional interpretation to read down the amplitude of the general grant of legislative power in s 122 to "make laws for the government of any territory" so its content is understood together with the other provisions of the Constitution, particularly those which were designed, as s 51(xxxi) was, to provide "a constitutional guarantee of just terms" ^[F453] . It is an elementary rule of the interpretation of constitutions that provisions of such a protective kind are given the liberal construction appropriate to such constitutional guarantees ^[F454] . The narrow view hitherto adopted is inappropriate to the constitutional language of s 51(xxxi), understood in this sense.

2.

The absence from s 122 of the phrase "subject to this Constitution" is also unimportant. That phrase has been described as "superfluous" ^[F455] , given that it is another rudimentary requirement of constitutional construction that each provision in the document must be read with all other provisions ^[F456] . Since the Constitution must be read as a whole, the words "subject to this Constitution" in ss 51 and 52 are strictly unnecessary. Put another way, the words can be implied into s 122. This point was made by Dixon CJ in Lamshed v. Lake ^[F457] when his Honour said "I have always found it hard to see why s 122 should be disjoined from the rest of the Constitution".

The contrary view is ultimately untenable, not simply as a matter of verbal construction but also when the purpose of the Constitution is kept in mind. That purpose, relevantly, was to provide for the harmonious interrelationship of the government of the Commonwealth and all its parts, including the territories. The territories were not, in law or in political reality, " quasi foreign countr[ies] remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament" ^[F458] . Kitto J's thoughts in Lamshed v. Lake ^[F459] were correct:

"[T]he 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."

3.

When it comes to the implications which are to be derived from the structure and organisation of the Constitution, they too support this approach. It seems unlikely that a fundamental law made by the people of Australia and establishing a Parliament elected by, and responsible to, the Australian people, would have contemplated the government of the territories as akin to federal fiefdoms, beyond the protection of the relatively few guarantees of rights thought so fundamental to the rest of the people of Australia that they had to be expressly stated in the constitutional text. To exclude the people in the territories from the rights conferred by the "constitutional guarantee" of just terms in s 51(xxxi), would have necessitated a much clearer expression of exemption. None exists. Where a special limitation on the powers of a Parliament is expressed in clear terms, the orthodox application of the principles of constitutional interpretation states ^[F460] :

"'[I]t is in accordance with the soundest principles of interpretation to treat the conferral of an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect' as inconsistent with 'any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification'."

That principle has been applied by this Court many times in relation to the interaction of s 51(xxxi) and other heads of legislative power in s 51. The same rule applies, with precisely the same force, in respect of other grants of legislative power appearing in the Constitution, including s 122.

4.

The foregoing is not to deny that the territories power in s 122 may properly be described as "plenary". Nor does it refute the amplitude of the power or its analogies to the general powers of government enjoyed by a State in relation to its own domain. But where there is an express constitutional safeguard, restriction or qualification, it does not erase the plenary power. It simply controls its exercise in relation to that particular subject matter specifically provided for. In explaining why the power to extract taxation is outside the requirement of "just terms" in s 51(xxxi), it is usually pointed out that the express power to tax people necessarily involves the contemplation of the acquisition of the taxpayer's property ^[F461] . However, the general power to make laws for a territory of the Australian Commonwealth does not necessarily require the uncompensated acquisition of property. There is no necessary reason to exclude the requirement of just terms. The Court should, instead, follow the course of interpretation which it has taken where it has been argued that an express head of power, supported, perhaps, by the express incidental power, authorises an acquisition of property without the constitutional precondition stated in s 51(xxxi). Within the boundaries of s 51, the Court has always insisted that the express constitutional promise of just terms in par (xxxi) has to be fulfilled, whatever the other constitutional source or sources of the law under which the acquisition is purportedly effected ^[F462] .

5.

The contrary view can also be tested by the bizarre consequences which would flow according to its logic. They suggest that the opposite interpretation should not be accepted. For example, the "plenary" view of s 122, taken to its extreme, led Gibbs J to question whether the guarantee in s 116 of the Constitution against the making of federal laws for establishing any religion applied to federal laws for the territories ^[F463] . Although Barwick CJ, delivering the judgment of the Court, drew back from this consequence in Teori Tau ^[F464] it is, in truth, a logical extension from totally disjoining s 122 from the rest of the Constitution. After all, s 116 appears in Ch v. titled "The States". An uncompromising view of the separateness of the several Chapters of the Constitution, and the particular separateness of s 122, supports Gibbs J's opinion. Yet it scarcely seems likely to have been the purpose of the Framers. It is not necessary to the constitutional text which they adopted. At least it is not necessary if the unity and integration of the whole draft is respected ^[F465] . Nor is the thesis that s 51 is confined to "federal", as distinct from territorial, concerns convincing. It has been commonly assumed that s 51(xxxix) is available to expand the power conferred on the Parliament by s 122 to make laws for the government of any territory ^[F466] . Yet once that supplementation by s 51 is acknowledged as a possibility, it is untenable, in logic, to adhere to the strict divide. If the incidental power is available to permit the Parliament to enact a law having extra- territorial operation outside a territory (as this Court has held ^[F467] ), the logic of that determination must be that acquisitions effected by the Commonwealth under a law made by the Parliament reliant on s 122, although in a State or even from a State, would not entail the constitutional entitlement to "just terms".

Such a proposition has only to be stated to show the absurdities which result from such a rigid disjunction of the territories power from the rest of the Constitution.

6.

The more recent authority of this Court has evidenced a gradual retreat from the approach of complete disjunction and a return to Dixon J's insistence upon viewing the territories power in its context in a Constitution established by and for the people of Australia for the entire government of their country, including the territories ^[F468] . Perhaps this movement reflects an appreciation of the changes of the political realities upon which the Constitution must operate as much as fresh insights into the text and this Court's decisional authority. No longer is s 122 of the Constitution necessary for the contemplated or prospective government of colonies such as Papua-New Guinea and Fiji, with their distinct needs, as originally envisaged when the Constitution was drafted ^[F469] . Now, the power must be read as part of a constitutional document providing for the government only of the Australian people, including those who live in the mainland and island territories of the Commonwealth. They constitute one people and Australia is one country ^[F470] . It is for such a people and country that the provisions of ss 51(xxxi) and 122 must now be understood and applied by this Court. The only way to avoid absurd results, out of joint with contemporary realities, is to read s 122 as subject to the expressed and implied safeguards, restrictions or qualifications appearing elsewhere in the Constitution. Doing so requires the overruling of the authority of Teori Tau. It may also require some reconsideration of other earlier decisions of this Court affecting the territories ^[F471] . The process of the reintegration of s 122 with the rest of the Constitution has already begun. It can be seen most clearly in the recent holding of this Court in Capital Duplicators Pty Ltd v. Australian Capital Territory ^[F472] . The doctrine that s 122 was "disjoined" was there reined in.

The territories power had purportedly been used by a territorial legislature to impose a duty of excise. That attempt was held to be forbidden by s 90 of the Constitution despite the amplitude of the territories power in s 122. This was so although s 90 appears in Ch IV, makes no reference to the territories, is expressed in terms which refer to "the Parliament" and "the several States" and is related to the central subject matters of the "federal" arrangements adopted to govern the Commonwealth and the States after the federation. The Court read the Constitution as a unity. Doing so, it found that s 122 was subject to s 90. The same approach should be taken to the principal problem presented by this case.

Interpretative principle

There is one final consideration which reinforces the view to which I am driven by the foregoing reasons. Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights.

Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said ^[F473] . If the Constitution is clear, the Court must (as in the interpretation of any legislation) give effect to its terms. Nor should the Court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law ^[F474] . However, as has been recognised by this Court ^[F475] and by other courts of high authority ^[F476] , the inter- relationship of national and international law, including in relation to fundamental rights, is "undergoing evolution" ^[F477] . To adapt what Brennan J said in Mabo v. Queensland [No 2] ^[F478] , the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.

One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia's domestic law, still less of its Constitution ^[F479] . Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation ^[F480] . At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution ^[F481] . The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms" ^[F482] . Such jurisprudence has its analogies in the courts of several other countries ^[F483] . The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted ^[F484] .

The Universal Declaration states in Article 17:

"1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property."

Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided:

"To any man whom we have deprived or dispossed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".

A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen , 1789 ^[F485] :

"Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".

Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that ^[F486] :

"No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."

The original provision to this effect in the Indian Constitution ^[F487] has been amended several times ^[F488] . The provision required that no person should be deprived of that person's property save by authority of law and such law had to provide for compensation for the property so acquired or requisitioned ^[F489] . The Supreme Court of India, while that test stood, insisted that provisions for compensation were a necessary condition for the making of a valid law providing for the acquisition or requisition of property by the state ^[F490] . In other countries of the region property rights are constitutionally protected by the same two requirements. Thus, Malaysia's Constitution provides that there shall be no deprivation of property save in accordance with law and no valid law for compulsory acquisition or use of property without adequate compensation ^[F491] . Similarly the Japanese Consititution provides ^[F492] that "[p]rivate [p]roperty may be taken for public use upon just compensation". In South Africa, where the issue was much debated in the context of the rights of the dispossessed majority, the 1996 Bill of Rights provides that "[n]o-one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property" ^[F493] .

In effect, the foregoing constitutional provisions do no more than reflect universal and fundamental rights by now recognised by customary international law. Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right ^[F494] , s 51(xxxi) of the Australian Constitution must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.

When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights ^[F495] . The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose. That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.

The authority of Teori Tau apart, a correct understanding of the Constitution does not oblige a construction condoning a law made by the Federal Parliament for a territory providing for the acquisition of property otherwise than on just terms. The obstacle which Teori Tau presents to the adoption of the correct constitutional principle should be overcome. This may the more readily be done because that decision effectively breaks a promise given on behalf of the Commonwealth at federation adopting a safeguard, restriction or qualification on its lawmaking powers relevant to the fundamental rights of all persons from whom property is compulsorily acquired under federal law. That promise extends to the territories and to laws for the government of the territories. This Court should ensure that the promise is kept. The decision in Teori Tau should be overruled. Section 51(xxxi) applies to a law made by the Federal Parliament under s 122. It therefore applies to the Conservation Act. It follows that the orders and declarations proposed by Gummow J should be made.

An alternative approach

The same result, as is reached by the foregoing reasoning, follows from the additional (or alternative) approach explained by Gaudron J in her reasons with which Toohey J agrees. Gummow J additionally adopts that approach. So would I.

The Conservation Act depends for its constitutional validity not only upon the territories power in s 122. It also relies upon the other sources of constitutional power described by Gaudron J in her reasons, notably the power afforded by s 51(xxix). This last- mentioned constitutional support is expressly stated, clearly applicable and real. It is not redundant, uncertain or superfluous to the terms of the Conservation Act. Once this is appreciated, for the reasons which Gaudron J gives, s 51 (xxxi) requires that the legislative power of the Federal Parliament, in enacting the Conservation Act, is fettered to the extent of forbidding any law with respect to acquisition of property on terms which are not just ^[F496] . The additional reliance upon s 122 of the Constitution cannot release that fetter. Gummow J is clearly right when he says that, if s 51(xxxi) is engaged, it is not disengaged by the circumstance that the law in question is, additionally, one for the government of a territory.

Although I prefer to face, and answer, the crucial constitutional question which the parties tendered to the Court concerning the authority of Teori Tau , the same result may be reached by this alternative path. I would therefore additionally support my orders on this basis.

Orders

The declarations and orders proposed by Gummow J should be made.