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

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh

Gummow JJ

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

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

Judgment date: 31 JULY 1997

Judgment by:
Gummow J

By order of the Chief Justice, certain questions were reserved for the consideration of a Full Court. The questions arise in two actions against the Commonwealth which are pending in this Court. In each action the pleadings have closed. By its defence in each action, the Commonwealth does not admit the allegations of fact pleaded by the plaintiffs.

By their statements of claim, the plaintiffs allege their removal from mother and family whilst infants and their subsequent detention (and in the case of the sixth plaintiff in Kruger & Ors v. The Commonwealth , the removal and detention of her infant child). These acts are said to have been committed against them in the Northern Territory ("the Territory") and to have been tortious and in breach of what are asserted to be individual constitutional rights. The tort upon which the plaintiffs rely is identified in the statements of claim as wrongful imprisonment and deprivation of liberty. There is no pleading of any other action in tort. The first alleged act of wrongful removal was in 1925 and the last in 1949. The alleged wrongful detentions are said to have continued for various periods, the last ending in 1960. The law relied upon by the Commonwealth in answer to the tortious acts complained of is the Aboriginals Ordinance 1918 (NT) ("the 1918 Ordinance"). The 1918 Ordinance was amended on numerous occasions ^[F390] and repealed by s 4 of the Welfare Ordinance 1953 (NT) ("the 1953 Ordinance").

By the Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act"), the Parliament created a regime for the administration by the Commonwealth of the Territory. In particular, s 13(1) of the Administration Act provided that, until the Parliament made other provision for the government of the Territory, the Governor-General might make Ordinances having the force of law in the Territory ^[F391] . The designation of the Governor-General meant the Governor-General acting with the advice of the Federal Executive Council ( Acts Interpretation Act 1901 (Cth), s 17(f)). It was pursuant to this authority that the 1918 Ordinance was made by the Governor-General on 12 June 1918.

Section 67 of the 1918 Ordinance empowered the Administrator appointed under s 4 of the Administration Act to make regulations for the effectual carrying out of the 1918 Ordinance.

The plaintiffs seek damages and declaratory relief. In particular, they seek a declaration of invalidity of ss 6, 7 and 16 of the 1918 Ordinance and, in so far as it is purported to confer power to make or amend certain regulations of which they complain, of s 67 thereof. They also seek a declaration of the invalidity of s 13(1) of the Administration Act, to the extent that it purported to authorise those provisions of the 1918 Ordinance.

Section 18 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") states that a member of the Court sitting alone may "reserve any question for the consideration of a Full Court". Order 35 r 2 of the High Court Rules provides that, if it appears to the Court or to a Justice that in a proceeding there is a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact determined, the Court or Justice may direct that question of law to be reserved for the opinion of the Full Court. The Chief Justice reserved the present questions expressly on the footing that the terms thereof do not call for the ascertainment of any facts, proof of which depends on evidence ^[F392] . Accordingly, in the absence of any further agreement between both sides to the litigation, it is impermissible for either side to rely on assertions of fact or to invite the Full Court to make or to proceed on assumptions or inferences of fact ^[F393] .

The first two of the questions reserved are in the following terms ^[F394] :

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

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

(a)

an officer of the Commonwealth; or

(b)

a person acting for and on behalf of the Commonwealth;

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

The plaintiffs seek an affirmative answer to question 2 by urging the existence in Australia of what in the United States is an action for damages arising from violation of constitutional rights by employees of the federal government. The United States doctrine has been developed since 1971 and derives from Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics ^[F395] . Bivens has received some favourable attention in New Zealand ^[F396] . However, current authority in this Court suggests there is no such doctrine in Australia in respect of executive action in excess of constitutional authority or in contravention of a constitutional prohibition beyond liability under the common law for tortious or other wrongful acts ^[F397] . On the other hand, s 84 of the Constitution directly creates an obligation in the Commonwealth enforceable in this Court to pay certain pensions and retiring allowances to certain State public servants transferred to and retained by the Commonwealth ^[F398] .

The reasoning in the Australian authorities has not proceeded on the footing that, because a constitutional guarantee operates to impose a restraint upon legislative power (as does s 51(xxxi) ^[F399] ) or to confer an immunity upon the individual in respect of certain activity (as does s 117 ^[F400] ), it follows that the guarantee confers a "right" which must have a remedy in the form of substantive relief upon a personal cause of action ^[F401] . Such a conclusion does not necessarily follow from the premise.

Moreover, Bivens has attracted much unfavourable comment in the United States, including the statement that the Bivens doctrine is "so devoid of constitutional legitimacy ... and so harmful in its consequences" that the Supreme Court itself should consider overruling Bivens ^[F402] . The decision is only to be understood against the limited waiver of the tort immunity of the United States by the Federal Torts Claims Act of 1946 ^[F403] , and by the limitation of the Civil Rights Act of 1871 ^[F404] to deprivation of federal rights by State or local officials acting under colour of State law. The Supreme Court recently declared that ^[F405] :

"[W]e implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available." (emphasis in original)

The treatment by the Judiciary Act of the tort liability of the Commonwealth has been quite different to that of the United States. So also is the relationship between the common law and the federal Constitution ^[F406] . Moreover, the plaintiffs' claim that their Bivens actions against the Commonwealth would escape any time limitation period would not hold in the United States. It has been held that Bivens creates no such class of perpetual federal liabilities ^[F407] .

The plaintiffs thus face formidable obstacles in propounding an affirmative answer to question 2.

The questions are so drawn that question 3 only arises if there is an affirmative answer to question 1 or question 2, and questions 4, 5 and 6 only arise if there is an affirmative answer to question 2. The remaining question, question 7, is as follows:

"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?"

The focus of the attack by the plaintiffs is on the validity of ss 6, 7 and 16 of the 1918 Ordinance. As the argument developed in oral submissions, it became apparent that little, if any, importance attached to any of the regulations made under the power conferred by s 67 thereof. If the attack on validity fails then it would follow that the acts complained of were not wrongful. The consequence then would be that question 1 would be answered in the negative and that, in due course, each action would be dismissed. The remaining questions either would not arise or be moot and so not permit of an answer by this Court ^[F408] .

The 1918 Ordinance

Provision was made by s 4(1) of the 1918 Ordinance for the appointment by the Administrator of an officer styled "Chief Protector of Aboriginals" ("the Chief Protector") to have, under the Administrator, responsibility for the administration and execution of the Ordinance ^[F409] . The Administrator also was empowered by s 4(2) to appoint "Protectors of Aboriginals" to have and exercise (s 4(3)) such powers and duties as were prescribed. The Chief Protector thus played the central role in the operation of the regime established by the 1918 Ordinance, of which ss 6, 7 and 16 formed part. Section 5(1) specified certain duties of the Chief Protector as follows:

"(a)

to apportion, distribute, and apply, as seems most fit, under the direction of the Administrator, the moneys at his disposal for the purpose of carrying out this Ordinance;

(b)

to distribute blankets, clothing, provisions, and other relief or assistance to the aboriginals;

(c)

to provide, as far as practicable, for the supply of food, medical attendance, medicines, and shelter for the sick, aged and infirm aboriginals;

(d)

to provide, when possible, for the custody, maintenance, and education of the children of aboriginals;

(e)

to manage and regulate the use of all reserves for aboriginals; and

(f)

to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud."

Section 6 conferred upon the Chief Protector substantial powers to undertake care and control of "any aboriginal or half-caste" (terms defined in s 3) ^[F410] . Section 6 provided:

"(1)

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

(2)

Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.

(3)

The powers of the Chief Protector under this section may be exercised whether the aboriginal or half- caste is under a contract of employment or not."

Section 16 conferred upon the Chief Protector powers of removal to any reserve declared by the Administrator to be a reserve for Aboriginals for the purposes of the 1918 Ordinance and powers of removal to any "aboriginal institution". That term was defined in s 3 as meaning:

"any mission station, reformatory, orphanage, school, home or other institution for the benefit, care or protection of the aboriginal or half-caste inhabitants of the Northern Territory, declared by the Administrator to be an aboriginal institution for the purposes of this Ordinance".

These powers did not (s 16(3)) apply to those who were lawfully employed pursuant to the provisions of Pt IV (ss 22- 34), who were holders of a permit to be absent from the reserve or aboriginal institution in question; who, being female, were lawfully married to and residing with a husband of substantially European origin or descent; or for whom, in the opinion of the Chief Protector, "satisfactory provision is otherwise made". The balance of s 16 provided:

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

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

Moreover, with an exception not presently material, s 7 created the Chief Protector the legal guardian of every Aboriginal and half-caste child. Section 7 relevantly provided:

"(1) The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years ...

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

Section 7 of the 1918 Ordinance was not reproduced in the 1953 Ordinance. This provided (s 14) for a declaration by the Administrator of certain persons to be a ward if by reason of enumerated matters that person stood "in need of such special care or assistance as is provided for by this Ordinance" and there was (ss 30-37) a system of judicial review in respect of declarations made under s 14.

The wardship system established by the 1953 Ordinance was considered by this Court in Namatjira v. Raabe ^[F411] . The Court held that it gave to Aboriginal people "a status substantially the same as that which they occupied under the [1918] Ordinance" and concluded ^[F412] :

"To sum the matter up, the legislation takes the place of prior legislation under which a large body of aboriginals had a particular status analogous to that which is given here; it confers a power to give a similar status to persons who stand in need of special care and assistance; the power is almost confined in its application to aboriginals, having regard to the ambit of the exclusions; they are persons who might be regarded as being as a class in such need and on the grounds enumerated; the power is reposed in the Administrator of the Territory; a person declared a ward has a right of appeal should he choose to exercise it and be in a position to exercise it; and the status given is protective in its nature." ^[F413]

The exercise of the powers of the Chief Protector under s 6 and s 16 of the 1918 Ordinance was subject to judicial review, whether by prerogative writ or in a suit for an injunction. Speaking of s 16, Fullagar J declared in Waters v. The Commonwealth ^[F414] :

"[T]he courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed".

Implications

In essence, the plaintiffs submit that the power conferred by s 13(1) of the Administration Act did not authorise the making of the 1918 Ordinance in so far as it contained the sections I have set out above. This, as I understand the submissions, was because (i) the power conferred by this provision upon the Executive to make Ordinances having the force of law could not exceed the constitutional competence of the Parliament itself directly so to legislate under s 122 of the Constitution and (ii) a law made by the Parliament in terms of ss 6, 7 and 16 of the 1918 Ordinance would have been invalid as exceeding one or other of various restraints upon its legislative power which were, as they still are, imposed as a matter of necessary implication from the text of the Constitution.

Before turning to consider these implied restraints, it is convenient to refer to certain remarks in McGinty v. Western Australia ^[F415] . Brennan CJ said:

"Implications are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis ^[F416] . No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure ^[F417] . However, as an implication will be applied in a particular case to a specific factual situation, it may be expressed in terms relevant to that situation ^[F418] . Although the Court was divided in Australian Capital Television Pty Ltd v. The Commonwealth ... there was nothing in any judgment to cast doubt on the approach then taken by Mason CJ ^[F419] :

'It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.'"

Legal equality

The plaintiffs contend that a law made by the Parliament in terms of the impugned provisions of the 1918 Ordinance would exceed the restraint upon legislative competence imposed by a doctrine of legal equality. They referred to the affirmative answer given in Leeth v. The Commonwealth ^[F420] by Deane and Toohey JJ to the question whether the Constitution, as a matter of necessary implication, adopts what their Honours had identified as a "general doctrine of legal equality" which existed as a "fundamental and generally beneficial doctrine of the common law". The doctrine was stated to have two distinct but related aspects ^[F421] :

"The first is the subjection of all persons to the law: 'every man, whatever be his rank or condition, is subject to the ordinary law ... and amenable to the jurisdiction of the ordinary tribunals' ^[F422] . The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts ^[F423] ."

As to this, four things may be said. First, no such doctrine was accepted by the other members of the Court in Leeth . It should also be noted that Gaudron J, the other member of the minority in Leeth , approached that case from a more particular standpoint, namely the proposition that ^[F424] :

"[w]hen exercising [federal] jurisdiction, State courts are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States",

and the further proposition that ^[F425] :

"[i]t is an essential feature of judicial power that it should be exercised in accordance with the judicial process."

Secondly, the decision in Leeth , by which the validity of s 4(1) of the Commonwealth Prisoners Act 1967 (Cth) was upheld, was inconsistent with any "general doctrine of legal equality". State laws relating to the fixing of non-parole periods differed, with the result that the minimum term of imprisonment imposed upon a person convicted of an offence against the law of the Commonwealth might vary significantly according to the State in which that person was tried.

In their joint judgment, Mason CJ, Dawson and McHugh JJ said ^[F426] :

"There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth. There is, of course, the implication drawn from the federal structure erected by the Constitution that prevents the Commonwealth from legislating in a way which discriminates against the States by imposing special burdens or disabilities upon them or in a way which curtails their capacity to exercise for themselves their constitutional functions ^[F427] ."

Their Honours went on to refer to specific provisions such as ss 51(ii), 92, 99 and 117 which prohibit discrimination or preference of one kind or another but are confined in their operation.

Thirdly, before federation the common law as it applied in the Australian colonies had been, as the common law in Australia is now, in continuing development by the courts administering it. In the nature of things, from time to time legislatures perceive the common law as unsatisfactory and as requiring, in a particular aspect, abrogation or modification. Thus the doctrines of common employment and of contributory negligence propounded in English nineteenth century decisions ^[F428] and the state of the law before the Married Women's Property Act 1882 (UK) invited and received legislative intervention. Other instances might readily be given.

Fourthly, to some extent, for example in the provision in s 80 for trial by jury, the Constitution adopts and preserves institutions of the common law as they existed in 1900, or at least what are perceived to be the essential features of those institutions ^[F429] . In addition, contemporary development of the common law in Australia must conform to the Constitution and the common law and the Constitution cannot be at odds ^[F430] . But in the absence of an anchor in the constitutional text it is a large step to extract from the whole corpus of the common law a "general doctrine of legal equality" and treat it as constitutionally entrenched.

Finally, caution is required in dealing with what was said by nineteenth century English legal writers as to equality of persons under or before the law. In so far as this referred to statute abrogating or amending the common law or creating novel rights and liabilities, it was said in the context of a fluid rather than a fixed constitution. Thus allowance had to be made for what was then perceived as the basal principles of parliamentary supremacy, and of the inability of any British Parliament to bind its successors. Dicey saw his doctrine of "parliamentary sovereignty" as an explanation of political reality in Great Britain ^[F431] .

It also is significant that certain provisions of s 51 of the Constitution itself support legislation which operates to the detriment of particular groups of persons, as well as beneficial legislation. This is true of par (xix) ("aliens") and also of par (xxvi) ^[F432] , at least in its original form which read:

"The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws" ^[F433] .

Moreover, s 117 sanctions different treatment for different classes of people, namely those who are subjects of the Queen and those who are not ^[F434] . The text of the Constitution thus serves to emphasise the point that, at the time of federation, concern with freedom under the law was directed not so much at achieving an even distribution of benefit and burden conferred or imposed by the substantive provisions of statute law, as an even-handed administration of those laws, whether by the executive or judicial branch of government.

Persons who were, within the meaning of the 1918 Ordinance, Aboriginals and half-castes were subjected in the Territory to the most acute interference with family relationships and freedom of movement and with the displacement of the ordinary incidents of guardianship in respect of infant children. These laws did not operate at all upon other persons. Nevertheless, the legislative power from which the authority to make these laws was derived was not limited by any doctrine of legal equality, implied as a matter of logical or practical necessity for the preservation of the integrity of the structure established by the Constitution.

Other implications

The plaintiffs also assert that the legislative power from which was derived the authority to make the impugned provisions of the Ordinance was restricted by other constitutional implications. These were identified as a "constitutional right to, and immunity from legislative and executive restrictions on, freedom of movement and association for political, cultural and familial purposes".

The problem is in knowing what "rights" are to be identified as constitutionally based and protected, albeit they are not stated in the text, and what methods are to be employed in discovering such "rights". Recognition is required of the limits imposed by the constitutional text, the importance of the democratic process and the wisdom of judicial restraint ^[F435] .

In Pioneer Express Pty Ltd v. Hotchkiss ^[F436] , Dixon CJ identified as resting upon a solid foundation the claim to a constitutional implication protecting the citizens of Australia "from attempts on the part of State legislatures to prevent or control access to the Capital Territory and communications and intercourse with it on the part of persons within the States, and to hamper or restrain the full use of the federal capital for the purposes for which it was called into existence". His Honour referred to considerations which "necessarily imply the most complete immunity from State interference with all that is involved in [the Territory's] existence as the centre of national government", and continued that that implication certainly meant "an absence of State legislative power to forbid, restrain or impede access to it ^[F437] . More recent decisions have emphasised the central importance to the efficacious working of the system of responsible and representative government established by the Constitution for the Commonwealth of communication of information respecting, and discussion of, matters of political interest ^[F438] .

In ACTV ^[F439] , it was said that the "notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement [and] freedom of association". However, with the delivery, after argument in the present case, of judgment in McGinty v. Western Australia ^[F440] and Lange v. Australian Broadcasting Corporation ^[F441] , it has become apparent that ACTV and the decisions in Nationwide News Pty Ltd v. Wills ^[F442] , Theophanous v. Herald & Weekly Times Ltd ^[F443] , and Stephens v. West Australian Newspapers Ltd ^[F444] are not authority for any proposition of this width.

In Cunliffe v. The Commonwealth ^[F445] , Brennan J, with reference to the decision of the United States Supreme Court in Crandall v. Nevada ^[F446] , said it was unnecessary on the instant occasion to determine whether the Constitution implies a right of access to government or to the repository of statutory power. However, if such an implication did exist, then s 16 of the 1918 Ordinance was susceptible of construction according full operation to the relevant restraint upon legislative power. The removal and the restraint upon freedom of movement imposed by s 16(1) did not apply to the holder of a permit to be absent from the reserve or aboriginal institution in question. Paragraph (b) of s 16(3) so provided. In accordance with the reasoning exemplified in such decisions as Minister for Immigration and Ethnic Affairs v. Mayer ^[F447] , s 16(3)(b) would be construed as impliedly conferring upon the Chief Protector the function of granting permits to be absent from the reserve or institution in question. Moreover, discretion attending the exercise of that function would be constrained so as to deny the efficacy of the exercise of the discretion inconsistently with any implied constitutional restriction ^[F448] . The position would be likewise with any broader constitutional implication as to freedom of movement, if such an implication existed.

That the structure established by the Constitution has as essential elements a system of responsible government and representative government does not bring with it, as an implication of logical or practical necessity for the preservation of the integrity of that structure, an implied restriction upon federal legislative power, as regards "freedom of association" in any general sense of that expression. There is, no doubt, much room for debate as to the content of the phrase "freedom of association" ^[F449] . For the present purpose of denying the existence of the relevant implication, I have taken the expression as containing at least those familial associations which would be impaired or indeed destroyed by the legal guardianship conferred upon the Chief Protector by s 7 of the 1918 Ordinance or by steps taken by the Chief Protector in exercise of powers conferred by ss 6 or 16 thereof.

The plaintiffs rely also upon the freedom or immunity from any law or executive act providing for or having a purpose, effect or likely effect of the destruction in whole or part of a racial or ethnic group or of the language and culture of such a group. In their submissions, the plaintiffs sought to supply a factual substratum showing the intention of the Commonwealth to commit "genocide". Issues of fact are presented. They are not to be assumed, before trial, in the proceeding presently before the Full Court.

Furthermore, the power conferred upon the Chief Protector by s 6 was conditioned upon the holding by the Chief Protector of an opinion that it was necessary or desirable in the interests of the Aboriginal or half-caste in question for the Chief Protector to undertake the care, custody or control of that person. It was the duty of the Chief Protector to exercise a general supervision and care over all matters affecting the welfare of the Aboriginals and to protect them against "immorality, injustice, imposition and fraud" (s 5(1)(f)). These provisions are indicative of a concern by the Executive, in making the Ordinance in exercise of the power conferred by s 13(1) of the Administration Act, to assist survival rather than destruction.

The philosophy given expression in the specific provisions to which I have referred now may appear entirely outmoded and unacceptable. Nevertheless, in its time, the 1918 Ordinance expressed a response to what then for at least 80 years had been perceived, initially by the Imperial Government, as the plight of the indigenous inhabitants of Australia as a consequence of the expansion of European settlement and land occupation ^[F450] . Officials styled "Protector of Aborigines" were first appointed by the Imperial Government following a recommendation in a Report of the Select Committee on Aboriginal Tribes, which had been appointed by the House of Commons in 1836. In his Despatch of 31 January 1838 to Governor Gipps of New South Wales, the Colonial Secretary (Lord Glenelg) included in his "general view of the duties, which will devolve upon the Protectors" the following ^[F451] :

"2. He must watch over the rights and interests of the Natives, protect them, as far as his personal exertions and influence, from any encroachment on their property, and from acts of Cruelty, of oppression or injustice, and faithfully represent their wants, wishes or grievances, if such representation be found necessary, thro' the Chief Protector, to the Government of the Colony. For this purpose, it will be desirable to invest each Protector with a Commission as Magistrate."

Thereafter, there was substantial colonial and State legislation on the subject. In South Australia, this had commenced with an Ordinance passed by the Governor and Legislative Council in 1844 "to provide for the Protection, Maintenance and Up-bringing of Orphans and other Destitute Children of the Aborigines" ^[F452] , in Victoria with an 1869 statute, "to provide for the Protection and Management of the Aboriginal Natives of Victoria" ^[F453] , in Western Australia with the Aborigines Protection Act 1886 (WA) ^[F454] , in Queensland with the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Q) ^[F455] , and in New South Wales with the Supply of Liquors to Aborigines Prevention Act 1867 (NSW) ^[F456] .

Against this background, it is little short of inconceivable that when the Administration Act was passed in 1910 the power conferred by s 13(1) was restrained as a matter of necessary inference from the structure of the Constitution in the way contended for by the plaintiffs.

Genocide

The plaintiffs rely upon the Convention on the Prevention and Punishment of the Crime of Genocide ("the Convention"), approval to the ratification of which by Australia was given by the Genocide Convention Act 1949 (Cth). The text of the Convention is set out in the Schedule to the statute. There is no further legislation which goes on to implement the Convention in Australian municipal law.

I have referred to the footing upon which this proceeding is before the Full Court. On that footing, I agree with Dawson J that acts authorised by the 1918 Ordinance which took place after the ratification became effective on 12 January 1951 did not fall within the definition of "genocide" contained in the Convention. I further agree, again for the reasons given by Dawson J, that reliance by the plaintiffs upon customary international law is misplaced.

There remain for consideration those grounds which the plaintiffs seek to base upon the specific provision in s 116 of the Constitution and the considerations flowing from the separation of federal judicial power by Ch III of the Constitution. It is convenient to deal first with these grounds on the footing that nothing turns upon considerations flowing from s 122. I will then deal with the more difficult, and logically anterior, issues whether s 116 applies to laws supported solely by s 122 and of the interrelation between Ch III and s 122.

The free exercise of religion

The plaintiffs submit that the power conferred by s 13(1) of the Administration Act did not authorise the making of an Ordinance which, in conferring or providing for powers of detention and removal, was a law "for prohibiting the free exercise of any religion" within the meaning of s 116 of the Constitution. They submit that, if the Administration Act itself had contained such provisions, it would have contravened the prohibition in s 116 and that this would follow even if such a law were passed in exercise of powers otherwise conferred upon the Parliament by s 122 of the Constitution.

In Attorney-General (Vict); Ex rel Black v. The Commonwealth ^[F457] , Gibbs J described that limb of s 116 which forbids the making of any law for prohibiting the free exercise of any religion as imposing a fetter on legislative power "for the purpose of protecting a fundamental human right". The constitutional expression "any religion" extends to the systems of faith and worship of Aboriginal people ^[F458] . On the other hand, it is as well to remember that in Adelaide Company of Jehovah's Witnesses Inc v. The Commonwealth ^[F459] , Latham CJ said that s 116 proclaims not only the principle of toleration of all religions, "but also the principle of toleration of absence of religion". Moreover, freedom to act in accordance with religious beliefs is not co-extensive with freedom of religious belief ^[F460] . Action in pursuance of a particular religious belief that is both monotheistic and eager to proselytise may conflict impermissibly with toleration both of other religions and of an absence of religion. Further, a law which protects or regulates the personal or property rights of others will not ordinarily offend s 116, despite curtailment by the general operation of that law of overt activity which in respect of some persons may give expression to their religious beliefs ^[F461] .

The use of the preposition "for" in the expression in s 116 of the Constitution "for prohibiting the free exercise of any religion" directs attention to the objective or purpose of the law in issue. The question becomes whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved ^[F462] . "Purpose" refers not to underlying motive but to the end or object the legislation serves ^[F463] .

The definition of "aboriginal institution" in s 3 of the 1918 Ordinance included a "mission station" but also any "reformatory, orphanage, school, home or other institution". The impugned provisions of the 1918 Ordinance, and the general duties of the Chief Protector set out in s 5(1), imposed no duty upon any officer charged with the administration of the 1918 Ordinance to bring up infants in any particular religion or to educate them in schools affiliated with any particular religion. No conduct of a religious nature was proscribed or sought to be regulated in any way. The withdrawal of infants, in exercise of powers conferred by the 1918 Ordinance, from the communities in which they would otherwise have been reared, no doubt may have had the effect, as a practical matter, of denying their instruction in the religious beliefs of their community. Nevertheless, there is nothing apparent in the 1918 Ordinance which suggests that it aptly is to be characterised as a law made in order to prohibit the free exercise of any such religion, as the objective to be achieved by the implementation of the law.

In the written submissions, by reference to extrinsic materials, the relevance and admissibility of which would be an issue at trial, the plaintiffs seek to place such a construction upon the 1918 Ordinance. I have referred to the particular nature of the proceeding before the Full Court. This does not permit, by submission, denial of the character with which the legislation otherwise is stamped. It may be that a particular law is disclosed as having a purpose prohibited by s 116 only upon consideration of extraneous matters indicating a concealed means or circuitous device to attain that end, and that it is permissible to apply s 116 in that fashion ^[F464] . But these can only be matters for another day.

Judicial power

The plaintiffs contend that the impugned provisions of the 1918 Ordinance conferred upon the Chief Protector powers which, consistently with the Constitution, in the Territory might be conferred only upon courts exercising the judicial power of the Commonwealth in accordance with Ch III of the Constitution. They further submit that these laws purported to confer judicial power other than on a court established under a law of the Commonwealth. The proposition here is that, even if the plaintiffs are wrong in their submission that Ch III applies in the Territory, nevertheless what might be called the judicial power of the Territory might be vested only in a body which answers the description of a court, and thus not in the Chief Protector. A power of detention which is punitive in character and not consequent upon adjudgment of criminal guilt by a court cannot be conferred upon the Executive by a law of the Commonwealth ^[F465] .

The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective ^[F466] . The categories of non-punitive, involuntary detention are not closed ^[F467] .

The powers of the Chief Protector to take persons into custody and care under the 1918 Ordinance were, whilst that law was in force, and are now, reasonably capable of being seen as necessary for a legitimate non-punitive purpose (namely the welfare and protection of those persons) rather than the attainment of any punitive objective.

This is apparent from various matters. There is the creation of legal guardianship in the Chief Protector by s 7, the specification in s 5(1) of the duties of the Chief Protector, the conditioning of the power under s 6 by an opinion as to exercise of the power being necessary or desirable in the interests of the persons in question for the Chief Protector to take them into care and custody, the exclusion from the operation of s 16 of those persons for whom, in the opinion of the Chief Protector, "satisfactory provision is otherwise made", and the existence before 1918 of long-established statutory regimes in the colonies and States which were directed to the welfare and protection of other indigenous persons.

Section 122 of the Constitution

Therefore, it is unnecessary to decide the logically anterior questions raised by the plaintiffs as to the relationship between s 122 on the one hand and s 116 and Ch III on the other.

However, I should express my firm view that s 122 is not disjoined from s 116. Also, were the matter res integra , it would be my tentative view, as regards the Territory, that the provisions of Ch III are applicable but that existing authority in this Court would require reconsideration before that conclusion could be reached and applied.

I turn first to the constitutional text which provides the foundation for the existence of the Territory. The relevant provisions in the covering clauses of the Commonwealth of Australia Constitution Act ^[F468] were identified as follows by Dixon CJ in Lamshed v. Lake ^[F469] :

"At the establishment of the Commonwealth the Northern Territory formed part of South Australia. In the definition of 'The States' contained in s 6 of the covering clauses of the Commonwealth of Australia Constitution Act , it is particularly mentioned, and after the reference to South Australia as a colony there occur the words 'including the northern territory of South Australia'. It formed part of a colony whose people agreed with the other colonies 'to unite in one indissoluble Commonwealth'. It formed part of the Commonwealth mentioned in the preamble and the subject of the Queen's proclamation by which pursuant to ss 3 and 4 of the covering clauses the Commonwealth was established. In fact the Northern Territory had been annexed to the Province of South Australia by Letters Patent in 1863. On 7th December 1907 an agreement was entered into between the State of South Australia and the Commonwealth for the surrender to the latter by the former of the Northern Territory on certain terms which are not material. The agreement was ratified by the Parliaments of State and Commonwealth. The Parliament of the Commonwealth ratified the agreement by the Northern Territory (Acceptance) Act 1910, s 6 of which declared that it was accepted by the Commonwealth as a Territory under the authority of the Commonwealth by the name of the Northern Territory of Australia. This declaration follows the language of s 122 of the Constitution."

The legislative power given by s 122 is necessarily not one to make laws with respect to particular subject-matters defined with reference to descriptions of conduct, activity or heads of law which are considered suitable for control by a central as distinguished from a State legislature ^[F470] . Nevertheless, the Parliament takes this power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia. Covering cl 5 of the Constitution renders it and the laws made by the Parliament under the Constitution binding on "the courts, judges, and people" not only of every State but also "of every part of the Commonwealth".

The scheme of the Constitution is that the Territory be governed, as Sir Owen Dixon put it, "not as a quasi foreign country remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament but as 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" ^[F471] .

The formulation of this point by Kitto J in Lamshed v. Lake a has since received a strong measure of acceptance in this Court ^[F472] . This has been so notwithstanding his Honour's later doubts in Spratt v. Hermes a ^[F473] as to what he had said in the earlier judgment. In Lamshed v. Lake Kitto J said ^[F474] :

"It has sometimes been remarked that the placing of s 122 in a late and not altogether appropriate position in the Constitution does less than justice to the far-reaching importance of the subject with which it deals. But 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."

The reasoning of Dixon CJ and Kitto J has led to acceptance of the propositions that (i) the Parliament may legislate for Australia as a whole when making laws with respect to various heads of power in s 51 of the Constitution and (ii) a law made by the Parliament in exercise of the power conferred by s 122 is a "law of the Commonwealth" within the meaning of s 109 of the Constitution so that it prevails over an inconsistent State law.

Whilst s 122 confers upon the Parliament law-making power for the government of any territory surrendered by any State to, and accepted by, the Commonwealth, it is s 111 which provides authority for such surrender and acceptance and specifies the status of the part of the State so surrendered. In particular, unlike the provision in s 123 for the alteration of the limits of States, s 111 does not require any approval at a referendum of the electors of the State in question. The steps taken in relation to the Territory were taken pursuant to s 111a ^[F475] .

Section 111 of the Constitution states:

"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."

The phrase "exclusive jurisdiction of the Commonwealth" is apt to identify the legislative, executive and judicial organs of government through which authority is exercised over what was previously part of a State. In Svikart v. Stewart ^[F476] , Brennan J said:

"Territories surrendered by a State and accepted by the Commonwealth pursuant to s 111 were declared to be 'subject to the exclusive jurisdiction of the Commonwealth'. They were taken out of the boundaries of the surrendering State ^[F477] . The Commonwealth acquired, subject to the Constitution, full sovereignty over a s 111 territory ^[F478] . Not only did a surrendering State lose legislative power over the s 111 territory; it lost all 'jurisdiction' over it, including executive and judicial power."

The executive authority there identified is that executive power of the Commonwealth provided for in Ch II of the Constitution and vested by s 61 of the Constitution in the Queen and exercisable by the Governor-General. This power extends to the doing of acts within a territory surrendered by a State to the Commonwealth without any statutory authority (other than the necessary appropriation of funds under s 83 of the Constitution) if those acts are of a kind which lie within the prerogative of the Crown. So much was established by the decision of this Court in Johnson v. Kent ^[F479] .

As with executive power, there is no express statement in the Constitution with respect to the operation of judicial power in the Territories. However, s 51(xxxix) speaks of "[m]atters incidental to the execution of any power vested by this Constitution ... in the Federal Judicature". And, the terms of Ch III are apt to encompass in all its aspects the judicial power for the Commonwealth. Express provision as to the legislative power of the Parliament is made by s 122. But s 122 stands outside Ch I. From that circumstance considerable difficulty has arisen. On one reading of the decisions in this Court, as regards the Territories, no power is vested by the Constitution in any court and the creation and exercise of such judicial power is left entirely to the choice of the Parliament in deciding to legislate under s 122. Yet, covering cl 5 of the Constitution assumes the existence of courts and judges of every part of the Commonwealth.

Before further examining the position as regards legislative and judicial authority in the Territory, it is appropriate to note that it would be surprising if the surrender of a part of a State to the Commonwealth and its acceptance by the Commonwealth pursuant to s 111 removed it, and the residents from time to time therein, from the protection of those provisions of the Constitution which applied to the people of the Commonwealth as members of the one body politic established by the Constitution ^[F480] .

Thus, it has been held that s 90 operated for the protection of the people of the Commonwealth including those who resided in an area of a State which subsequently became an internal Territory; those residents were and remained entitled to the maintenance of the free trade area throughout the Commonwealth which s 90 was intended to ensure ^[F481] . Likewise, s 118 mandates as to the whole of the Commonwealth a state of affairs wherein full faith and credit must be given to the laws, public Acts and records, and the judicial proceedings of every State ^[F482] .

Another protection to which those residents had been entitled was that conferred by s 116 against the making by the Parliament of the Commonwealth of any law, inter alia, "for prohibiting the free exercise of any religion". Further, these residents had the benefits which flow from Ch III of the Constitution.

Sections 116 and 122 of the Constitution

Section 116 states:

"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."

The weight of authority, albeit none of it determinative of the issue, supports the proposition that s 116 operates to restrict the exercise of the legislative power conferred by s 122 ^[F483] .

It is true that s 122, in stating that the Parliament may make laws for the government of the Territories, does not include the expression "subject to this Constitution" or a like form of words. But that does not mean that s 122 is to be construed as though it stood isolated from other provisions of the Constitution - of which s 90 certainly is one ^[F484] - which might qualify its scope. The bar imposed by s 116 upon the making of certain laws by the Commonwealth is imposed in general terms. Moreover, it would be a capricious result if the application of s 116 to a law made by the Parliament and operating in the Territories depended upon the circumstance that the source of the power of the Parliament to make the particular law was to be found in s 51 rather than s 122. The reasoning of Dixon CJ and Kitto J in Lamshed v. Lake ^[F485] is responsive to what otherwise would be a constitutional anomaly.

The reading of the Constitution, in the manner indicated by Dixon CJ and Kitto J, as a coherent instrument of national government, inevitably leads to the conclusion that the bar imposed by s 116 applies to the making by the Commonwealth of any law of the relevant description, whatever otherwise be the authority under the Constitution for the Parliament to pass that law. Added support for that construction, in the case of internal Territories, is supplied by the considerations which I have mentioned as flowing from the operation of s 111.

Accordingly, I would reject the submission by the Commonwealth that the case the plaintiffs sought to make in reliance upon s 116 failed at the outset because the Administration Act was a law supported by s 122 of the Constitution.

The judicial power and the Territories

Chapter III operates to achieve the independence of the judiciary for two related ends: (i) the institutional separation of the judicial power so that the courts might operate as a check, according to law, on the other arms of government; and (ii) protection of the independence of the judiciary to ensure the determination of controversies free from domination or improper influence by other branches of government and in accordance with judicial process ^[F486] . Chapter III gives effect to the doctrines of the separation of the judicial power from other functions of government and of judicial review which are essential integers of the federal structure of government ^[F487] . It also serves the personal interests of litigants (individual, corporate and government) in having their controversies resolved by an independent judiciary ^[F488] .

Certain decisions of this Court have sought, explicitly or otherwise, to explain the content and nature of that part of "the exclusive jurisdiction of the Commonwealth", within the meaning of s 111 of the Constitution, as pertains to the judicial power. Provision as to the legislative aspect of the "exclusive jurisdiction of the Commonwealth" in relation to the Territory is made by s 122 and, in some respects, by s 51 of the Constitution ^[F489] . Section 61 embraces the executive power in relation to such a Territory. An answer both simple and close to the text would have been given by a decision that, conformably with s 61 as to the executive power of the Commonwealth, provision was made by s 71 as to the judicial power of the Commonwealth in relation to the Territories.

In R v. Kirby; Ex parte Boilermakers' Society of Australia ^[F490] , Dixon CJ, McTiernan, Fullagar and Kitto JJ said:

"It would have been simple enough to follow the words of s 122 and of ss 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament."

Later, after referring to R v. Bernasconi ^[F491] and Buchanan v. The Commonwealth ^[F492] , Windeyer J said ^[F493] :

"Nevertheless and although, because of the eminence of those who gave the judgments and of their close knowledge of the genesis of phrases of the Constitution, it may seem boldly unbecoming to say so, I do not think that the conclusion that Chap III, as a whole, can be put on one side as inapplicable to matters arising in the territories is warranted by its actual language."

In my view, there is much to be said for the proposition that the text of the Constitution, which must be controlling, places the territorial courts within the scheme and structure of Ch III. However, as will appear, at least two subsequent decisions of this Court stand in the way of acceptance of that proposition.

It is true that controversies arising in the Territories might involve wholly or exclusively disputes as to rights and liabilities conferred or imposed pursuant to the general law rather than federal statute law. But s 7(1) of the Northern Territory Acceptance Act 1910 (Cth) provided:

"All laws in force in the Northern Territory at the time of the acceptance shall continue in force, but may be altered or repealed by or under any law of the Commonwealth."

Such a provision excluded the possibilities of a legal vacuum and of the surrender and acceptance of the Territory being equivalent to the cession of territory by one power to another by treaty, so that the ceded territory became part of the nation to which it was annexed ^[F494] . Further, in the Province of South Australia, it had been regarded as axiomatic that from the beginning of European occupation the common law and English and Imperial legislation would apply under the common law principles on the reception of law in settled colonies ^[F495] . Finally, there may be a "matter [a]rising under" a law made by the Parliament, within the meaning of s 76(ii) of the Constitution, although its interpretation is not involved; it is sufficient that the right or duty in question in the matter owes its existence to federal law or depends upon it for its enforcement ^[F496] .

Hence, the force in the statement, with reference to the position in the Australian Capital Territory, made by Dixon J in Federal Capital Commission v. Laristan Building and Investment Co Pty Ltd ^[F497] :

"It may well be that all claims of right arising under the law in force in the Territory come within this description [ie, within s 76(ii)], because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see s 6), and the Seat of Government (Administration) Act 1910 (see ss 4 to 7 and 12)."

However, on the appeal in Attorney-General of the Commonwealth of Australia v. The Queen ^[F498] , the Privy Council for the time being foreclosed any development to implement these views by a dogmatic statement that Ch III was to be regarded as "exhaustively describing the federal judicature and its functions in reference only to the federal system of which the Territories do not form part". That obliged Dixon CJ, in Lamshed v. Lake ^[F499] , to accept that Ch III "may be treated as inapplicable so that laws made mediately or immediately under s 122 are primarily not within the operation of the Chapter" (emphasis added).

Then, in Spratt v. Hermes ^[F500] , although many aspects of the subject were discussed, two points were decided. The first was that the Commonwealth legislation supported by s 122 may create or authorise the creation of courts with jurisdiction with respect to occurrences in or concerning a Territory without observance of the requirements of s 72 of the Constitution, so that the stipendiary magistrate hearing the charge in question under the Post and Telegraph Act 1901 (Cth) was validly appointed. Secondly, a court of a Territory having the appropriate local jurisdiction may enforce in relation to acts occurring within the Territory a law made by the Parliament upon a subject-matter falling within s 51 of the Constitution and, as was the case with the 1901 statute, intended to operate throughout the Commonwealth. This is so, even though the Territory court is not one in which the judicial power of the Commonwealth is vested within the meaning of s 71 of the Constitution ^[F501] .

Capital TV and Appliances Pty Ltd v. Falconer ^[F502] is authority for the proposition that the Supreme Court of the Australian Capital Territory, created and constituted by the Australian Capital Territory Supreme Court Act 1933 (Cth), was not a federal court nor a court exercising federal jurisdiction within the meaning of s 73 of the Constitution ^[F503] . The consequence was that no appeal lay by force of s 73 of the Constitution. A law passed under s 122 of the Constitution might confer a right of appeal to the High Court from territorial courts, whether or not the matter in issue otherwise was one of federal jurisdiction. However, no such law applied to the instant case and the appeal was dismissed as incompetent. Nor was there any legislation conferring jurisdiction to grant special leave ^[F504] .

As it presently appears to me, and contrary to the submissions for the plaintiffs, it would be necessary at least to reopen these decisions if Ch III were to be given that operation in relation to the Territories described in Boilermakers by Dixon CJ, McTiernan, Fullagar and Kitto JJ ^[F505] . This operation would follow from the "simple" reading of Ch III such that the courts and laws in force in a Territory were federal courts and laws made by the Parliament or made pursuant to such laws.

The treatment in some of the earlier decisions of the constitutional footing for the exercise of judicial power in the territories appears to have been blighted in several respects. First, there is the proposition that controversies which arise under some laws made by the Parliament will involve the exercise of federal jurisdiction whilst others will involve the exercise of jurisdiction which is "territorial" and "non-federal". This does not sit well with the established doctrine that the Constitution is to be read as one coherent instrument, so that s 122 should not be treated as "disjoined" from the rest of the Constitution ^[F506] .

Secondly, to treat the scope of Ch III as reflecting the division of legislative power between the Parliament and the legislatures of the States gives insufficient weight to the heading of Ch III. This is simply "THE JUDICATURE". It also gives the term "federal" in the phrase "federal courts" as it appears in s 71 and in succeeding provisions too narrow a meaning. Many heads of federal jurisdiction embrace justiciable controversies of a nature and character unknown in the anterior body of general jurisprudence in the Australian colonies. Griffith CJ pointed to this early in the history of this Court, with reference to the then disputed border between South Australia and Victoria ^[F507] . In addition to actions between States, the controversies include those arising under the Constitution or involving the interpretation of its provisions (including s 122 itself), and those where an injunction, prohibition or mandamus is sought against a Commonwealth officer ^[F508] . This renders inapt any analogy to the division of legislative power effected by s 51.

Thirdly, the absence, save in covering cl 5, in the Constitution of reference specifically to territorial courts and, in particular, the absence of specific identification thereof in Ch III have encouraged the belief that the creation and composition of territorial courts and the exercise of jurisdiction by them is a matter entirely for the legislature; yet, as was pointed out by Dixon CJ, McTiernan, Fullagar and Kitto JJ in Boilermakers (in the passage set out before in these reasons), the terms of s 122 and ss 71, 73 and 76(ii) are consistent with a contrary view.

Fourthly, there has been, at least before the amendments made in 1977 to s 72 of the Constitution, some apprehension lest the life tenure previously provided for in s 72 be requisite in all courts exercising jurisdiction in relation to the Territories.

At a time when the external Territories included or were expected to include populations then regarded as being in a backward state of development, there was an evident apprehension as to what would be involved in the extension there of the Australian legal system in all its incidents, including trial by jury. Further, both in this country ^[F509] and the United States ^[F510] , it has become clear that delegation of some part of the jurisdiction, powers and functions of a federal court to its officers is, upon certain conditions, permissible and consistent with the federal judicature provisions made by the respective Constitutions.

The first consideration is nowhere more evident than in the judgment of Isaacs J in R v. Bernasconi . The Court there decided, on a case reserved by the Central Court of Papua, that the accused's deemed request for a jury had been rightly refused and that s 80 of the Constitution was inapplicable. Isaacs J said ^[F511] :

"[Section 122] implies that a 'territory' is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers. It is in a state of dependency or tutelage, and the special regulations proper for its government until, if ever, it shall be admitted as a member of the family of States, are left to the discretion of the Commonwealth Parliament. If, for instance, any of the recently conquered territories were attached to Australia by act of the King and acceptance by the Commonwealth, the population there, whether German or Polynesian, would come within s 122, and not within s 80. Parliament's sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system."

Section 80 of the Constitution states:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

In its terms s 80 thus contemplates that the offence in question may not have been committed within any State. Accordingly, an offence to which s 80 applies may have been committed within a Territory or elsewhere in the world in contravention of a law of the Commonwealth having a valid extraterritorial effect ^[F512] . In either case, the trial is, pursuant to s 80, to be held at such place or places as the Parliament prescribes. Furthermore, the "offence against any law of the Commonwealth" referred to in s 80 may be an offence against a law applicable only to a Territory. This is a matter adverted to by Evatt J in Ffrost v. Stevenson ^[F513] . If a law made in pursuance of the power conferred by s 122 is a "law of the Commonwealth" for the purposes of s 109 of the Constitution, as established by Lamshed v. Lake , it is difficult to maintain the proposition that such a law is not a "law of the Commonwealth" within the meaning of s 80. It was considerations such as these which led Evatt J in Ffrost v. Stevenson to decline to support what his Honour described as "the at first sight surprising generalisation that no part of chapter III of the Constitution can have any application to territories under s 122".

A further consequence of this generalisation, before the passage of the Privy Council (Limitation of Appeals) Act 1968 (Cth), s 4, was that, although no appeal lay from the courts of a Territory under s 73 of the Constitution to the High Court of Australia, nevertheless an appeal from such a court lay directly to the Privy Council. It was stated by the then Solicitor-General for the Commonwealth ^[F514] :

"It is accepted that an appeal by special leave lies to the Privy Council from the decisions of other federal courts and the Supreme Courts of the Territories, although the jurisdiction is rarely invoked."

Accordingly, s 4 of the statute states:

"Leave of appeal to Her Majesty in Council, whether special leave or otherwise, shall not be asked from a decision of a Federal Court (not being the High Court) or of the Supreme Court of a Territory." ^[F515]

The point is that the need for such a provision in relation to the Territories only arose from the particular view that had been taken which disjoined those courts from the Australian appellate structure, at the apex of which this Court was placed by s 73 of the Constitution. The provision would have been unnecessary if the view had been taken that the courts and laws of the Territories were federal courts and the matters litigated there arose under laws made by the Parliament within the meaning of s 76(ii) of the Constitution.

Sections 10 and 19 of the Territories Law Reform Act 1992 (Cth) confer upon certain courts of the State of Western Australia jurisdiction previously vested in or exercisable by respectively the Supreme Court of Christmas Island and the Supreme Court of the Cocos (Keeling) Islands. If the views indicated above were presently authoritative, there would be no difficulty in classifying those laws as supported by s 77(iii) of the Constitution. As it is, reliance apparently must be placed on s 122 as conferring authority upon the Parliament to confer jurisdiction upon State courts.

Territorial courts

As matters now stand, the existing dislocation, if not disjunction, of the territorial courts produces several consequences, of daily importance, which appear to be adverse to the scheme and structure of the Constitution. This is nonetheless so in the light of changes made to the territorial court structure by legislation such as the Northern Territory Supreme Court (Repeal) Act 1979 (Cth) and the Supreme Court Act 1979 (NT) ("the NT Act"). The first statute repealed the Northern Territory Supreme Court Act 1961 (Cth) but provided (s 5) that the Supreme Court as established by the second, territorial, statute is to be deemed as to be a continuation in existence "without any change in identity" of the Supreme Court as established by the 1961 statute. Section 40 of the NT Act provides for the removal from office of a judge of the Supreme Court by the Administrator upon an address from the Legislative Assembly praying for removal on the ground of proved misbehaviour or incapacity ^[F516] .

Matters which are within the original jurisdiction of this Court, including matters arising under the Constitution or involving its interpretation, have been entrusted by the Parliament to courts which, under received doctrine, are neither federal courts nor courts of a State within the meaning of s 77 of the Constitution. Sections 78A, 78B and 40 of the Judiciary Act operate upon that premise. However, save for the possible availability of review under s 75(v) of the Constitution (on the footing that a judge of a "territorial court" is an "officer of the Commonwealth"), there is no constitutionally entrenched avenue for access to the High Court in such matters.

In Capital TV and Appliances Pty Ltd v. Falconer ^[F517] , Windeyer J said:

"When this Court hears appeals from courts in the territories, pursuant to a power to do so given by Parliament, it does not do so in a federal capacity. It does so as the supreme court of the Australian nation, exercising a jurisdiction conferred by the Parliament not pursuant to its federal powers but as a sovereign legislature having plenary powers over Australia's territories. The Parliament can authorise an appeal to this Court, on such conditions and subject to such limitation as it thinks fit, from any court that it was within its power as a sovereign legislature to create, although it is not a court within the federal system and governed by the provisions of Ch III of the Constitution."

There are two difficulties with the propositions in that passage. The first concerns the situation where the territorial court has been exercising what otherwise would be considered federal jurisdiction, for example, by determining a matter arising under or involving the interpretation of s 122 itself, or a matter arising under a law made by the Parliament. The received doctrine, strikingly applied in The Commonwealth v. Queensland ^[F518] , is that the judicial power delineated in Ch III is exhaustive of the manner in and the extent to which judicial power may be conferred on, or exercised by, any court in respect of the subject-matters set forth in ss 75 and 76, "matters" in those sections meaning "subject-matters" ^[F519] .

Secondly, it is fundamental that the Constitution creates an "integrated system of law" ^[F520] , and a "single system of jurisprudence" ^[F521] . The entrusting by Ch III, in particular by s 73, to this Court of the superintendence of the whole of the Australian judicial structure, its position as ultimate interpreter of the common law of Australia ^[F522] and as guardian of the Constitution are undermined, if not contradicted, by acceptance, as mandated by the Constitution, of the proposition that it is wholly within the power of the Parliament to grant or withhold any right of appeal from a territorial court to this Court.

These conclusions are the more remarkable when it is remembered that there is denied, under present doctrine, to the judicial officers of the courts of the Territories the constitutionally entrenched security of tenure otherwise provided by s 72 of the Constitution. The result is the dilution of the protection otherwise afforded to citizens by the countenancing of determination of their disputes by two levels of courts created by or pursuant to laws of the Parliament of Australia. Such a situation sits ill with the general requirement that the Constitution binds the courts, judges and people of every State and of every part of the Commonwealth (covering cl 5).

The plaintiffs submitted that "in the light of contemporary understanding of the federal structure" it is difficult to see any basis for excluding the application of the requirements of Ch III from the exercise of legislative power under s 122. It will be apparent that I see the force in that submission. However, in the present state of the authorities, the plaintiffs cannot make good their submission that all laws of the Commonwealth, including those supported by s 122, must comply with the doctrine of the separation of powers found in Ch III of the Constitution. Moreover, and as I have indicated, even if the plaintiffs were correct, that would not produce invalidity of any of the laws they impugn in these actions.

Conclusion

Question 1 of the questions reserved in each action should be answered by saying that none of the legislation in respect of which a declaration of invalidity is sought in that action is invalid by reason of any of the rights, guarantees, immunities, freedoms or provisions pleaded in par 29 of the amended statement of claim. There should be no answer to any of the remaining questions reserved. The plaintiffs must pay the costs of the defendant of the questions reserved for the Full Court.