REPORTS OF CASES

lJETERlvllNED IN THE

HIGH COURT OF AUSTRALIA

KRUGER AND OTHERS PLAll\;T1FFS;

THE COMMON\VEALTH OF AUSTRALIA .. DEFENDA:-IT.

BRAY AND OTHERS ... PLAINTIffS;

THE COMMONWEALTH OF AUSTRALIA. DEFENDANT.

Constitutional WI'.' (Oh) -.- Judicial power of Commonwealth - Terri/ories H en" A

1'1%1997
- Sepamtion of powers - Law al/thorising removal ollii de/ell/ion oj
Aboriginal children - Character - Purpwe - The Constilulion 163 & Fe/> 12-1<;
64 Viet c 12), ell III, S 122 ~ Aboriginals Ordinance 1918 (NT), 556, 19%
16, 67.
Constitutional Law (eth) - Powas of CommolHl'ealih Por/iament -
Territories - Scope of power - Conncctioll of subjed (!f law with
Territory - Proportionality - Wlu:/ha s 122 subjecllo oll1er provisions !lee"""" (J
of CumliluliO/l - The ConI/ilulioll (63 & 64 Viet c 12). s 122. D"w,'"n.
T;'"Il'y_
G"uJn'".
Constiwtional Law (CIIl) -- Freedom of exercise or re/iRion - Whetha denial ~1cHLI~h
'oJ
- Tile ComtitUlion (63 & 64 Viet c 12),.> 116. GUlnm,m-JJ

Constil/ltimwl Lwv (Cthj --. Implied cOllstitutiOl/ti1 riRhts "-- Legal equality-
Freedom of movemenl and associalion - W!'>' Qllthorising removal and
detention of Aboriginal childrell,
Comtirutiono{ ww (Clh) - Extemal aJJuirs - Intemuliollul conv/'ntiml, -
Conlleclion between intemationa{ instrument and Commo/lwealth law-
Trear;! ratified by Ausrralia bur nOI givf/1 effect hv leRis{atioll
Com-ention on Prc-.'ention and Prmishmellt a/Crime oIGenocide.
2 HIGH COURT [1996-1997

HC",A Conslilulivnal Law (On) - Rights under CUlls/illllioll - Breach - Wht'lher

1996-1997 right of actioll for damage;.
K~cGER The: Aboriginals Ordinance 1918 (NT) was made pursuant to powers
conferred by the Northern Territory Accepmnce Act 1910 (eth) and the
THE
C"~IM()N'
Nurthern Ten-iIOl)' Admillisrruliun Act 1910 (Oh) and commenced
WEALTII operation on 13 June 1918, It was amended at various times pursuant to
power~ l:onfcrrctl by the Al:(.:cptancc Act, the Administration Al:( and \h(:
Northern AllSfra/ia Acrl926 (Oh). It was repealed from 13 May 1957.
Section (i of the On]inance allowed th~ Chief Prot~ctor of Aboriginals,
and later the Director of Native Affairs. to undertake the care. custody or
control of any Aboriginal or half-caste (as defined) if, in his opinion, it
was necessary or desirable in the interests or the Aboriginal or half-(;aste
for him to do so. Section 7 of the Ordinance made the Chief Protector
(later Director) the legal guardian of ever)' Aboriginal and of every half-
caste child, and later, the legal guardian of all Aboriginals as then
defined. Section 16(1) empowered the Chief Protector (later Director) to
cause any Aboriginal or half-caste to be removed to and 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 moved from one reserve or institution to another and to be kept
therein. Section 16(2) made any Aboriginal or half-caste who refused to
be removed etc when ordered, or refused to remain within or attempted
to depart from any reserve or institution to which he had been removed
or was being kept, guilty of an offence. Section 67 enabled regulations to
bc made. Regulations were made empowering Protectors of Aboriginals
to rorward any Aboriginal or half-t:aste t:hildren to the nearest Aboriginal
institution or school and requiring them to report the reason for suo::h
action to the Chief Protector (later Director).
A number of adult Aboriginals sued the Commonwealth alleging that
as children they had been "removed into and detained and kept in the
care, custody amVor control of" the Chief Protector or the Director and
kept in institutions or reserves. The tirs! removal was alleged to have
occurred ahout 1925, the last ahout 1949, and the last detention was
alleged to have ended in 1960. The pluimiffs (;(llltended that the
Ordinance and the Acts, to Ihe extent that they authorised the actions
complained of and the making of the rdevant regulations and the
subordinate legislation. ",'ere invalid upon several grounds: that they
were contrary to an implied constitutional freedom from removal or
detention without legal process in ac(;()rdanc~ with Ch 111 of the
Constitution and that the powers otherwise contravened Ch 111; that they
were contrary to implied constitutional rights or guarantees of legal
equality and of freedOin of movement and association: that they were
contrary to implied constitutional righls of freedom or imlllunity from
laws or executive acts providing for or having the purpose, effect, or
likely effed, of the destruction of a raeial or ethnic group or its language
or culture. or subJeding the children of a racial or ethnic group to the
disability of removal and detention from that group, or constituting or
authorising the crime against humanity of genocide; and that they
prohihited the free exercise of religion contrary to s 116 of the
Constitution; and that they were not laws for the govemmen! of the
Northern Territory.
190 CLR 1] OF AUSTRALIA
Held. by Brennan C1, Dawson, McHugh and Gummow 11, semble H COF A
Gummow J. Gaudron J dissl:nting as to ss 6(1),16 and 67(1)(c) of the 1996- t997
Ordinam:e. Touhey J not dcciding. that neither the Ordinance, or ss 6, 7,
KRI.:GER
16 and 67 thereof, nor any of the Acts was invalid by reason or any of ,
the rights, guarantees, immunities, freedoms or provisions pleaded. THE
Hefd, further, by Brennan C1, Tuohey and Gaudron 1J, Dawson, COM"""-
McHugh 11 not deciding, the Constitution creates no private rights WELTH

enforceable directly by an action for damages, other than an action for

tort or bre,Kh uf contract, for hreach of its provisions.
Chapter III
Per Brennan C1. The scope of s 122 of the Constitution is not confined
by limitatiuns derived from provisions of the Constitution designed
merely to distribute powers hetween the Communwe<llth and the States.
Chapter III descrihes the federal judicature and its functions in reference
only to the federal system of which Ihe Territories are not part.
Per Dawson J, McHugh 1 agreeing, The Constitution contains no
general guarantee of due process of law. Mureuver the actions
wmplained of were of an executive rather than a Judicial character. The
judicial power exercised in the Territories is not the judicial power of thc
Commonwealth within Ch III. Accordingly, even if the al:tions were of a
judicial charal:ter. no constitutional requirement wuuld have been
iufringed.
Per Toohey J. Although laws made under s 122 must comply with
Ch III. and the puwer to detain in custody is generally an incident of
judicial power, the welfare purpose evident in the legislature is at odds
with the notion that the powers of detention conferred hy the Ordinance
are punitive and necessarily involve the exercise of judicial power.
Per Gaudron J. A law authorising detentiun in custody is not of itself
uffensive to Ch III. Hence, whether ur not the exercise of power under
s 122 is suhjectto Ch III, the Ordinance is not invalid on the ground that
it purpons to confer judicial power contrary to Ch III. Nor is s 122
suhjeet to an implied right of due process, and so the Ordinance is not
invalid on that ground.
Per Gummow 1. The powers to take persons into custody and care
were non-punitive. Funher, on the present state of authority, it cannot be
said that laws made pursuant 10 s 122 must comply with the doctrine of
the separation of powers.
Chu KhelJR Lim I' Millis/er for fmmif(ratiorl (1992) 176 CLR I,
considered.
Legal equality
Per Brennan CJ, Dawsun, McHugh and Gummow 11. There is no
constitutional requirement that all laws or the Commonwealth must
accord equality before the law.
Per Toohey 1. The implied l:onstitutional doctrine of legal equality is
nut infringed hy a law whil:h discriminates between persons on grounds
which arc reasonahly capable of bcing seen as pruviding a rational and
relevant basis for that treatment. Whether such basis for discrimination
exists in the case of the OrdimUlee must he assessed in its historical
selling and upon evidence.
Per Gaudron J. There is no wnstilUtionaJ guarantee of legal equality
other than that derived from Ch III which precludes the conferring on
4 HIGH COURT [1996-1997
H COFA (ouns of discretionary [Jowers whjl:h lIrc such that they must be
19961 ~Y7 exef';iscrJ in a discriminatory manner.
Leeth v The Commonwealth (1992) 174 CLR 455, considered.

THE
Freedom of mVl'emenf and association
CO""''''_ Per Brennan CJ. Leaving open the question of whether any at:tiuns
WEAlTH under the l.:hallcnged laws infringed the implied constitutional freedom of
communication with respect to government and political matters or, if
there were an implied cun~litulionllI freedom of movement and
association, the existence of the laller freedom would not have
invalidated any of the challenged laws.
Per Dawson 1. Leaving open the question of whether there W;J.~ ~n
implied constitutional freedom of movement and association which may
otherwise restrict Commonwealth legislative power, nothing in the
Constitution supported an implied constitutional right to or guarantee of
freedom of movement and association for political purposes which might
limit the powers conferred by s 122.
Per Toohey J. Section 122 of the Constitution is confined by the
implied constitutional freedom of political communication and by an
implied constitutional freedom of movement and association which
(seinhle) is its corollary. The validity of the Ordinance depends upon the
relevant provisions not bcing disproportionate to what was reasonably
necessary for the protection and preservation of the Aboriginal people of
the Northern Territory, alternatively, the law must be reasonably amI
appropriately adapted to serve a legitimate end. To apply the
proportionality test, standards and perccptions prcvaiJing at the lime of
the Ordinance must he considered.
Pcr Gaudron J. Freedom of political communication necessarily entails
freedom of association and movement. Hence those freedoms are implicit
in the Constitution and constrain the powers conferred by s 51. Funhcr,
because of the nature and scope of the freedom of political communi-
cation and the rcsponsibility thc Australian pcoplc bcar for thc
government of the territories through their members of parliament. s 122
is subject to both freedom of political communication amI the subsidiary
freedoms of movement and association. A law which has the purpose of
restricting either freedom is invalid. Sections 6 and 16 or the Ordinance
were couched in terms directly contrary to the freedoms or movement
and association, as was the power in s 67( I)(c). They could be valid only
if necessary for the allainment of an overriding public purpose or for the
satisfaction of a pressing social need. In the absence of assenion by thc
Commonwealth that the Ordinanl'e was necessary for the preservation or
protection of Aboriginal people, or any basis upon which su(;h an
assertion could he made out, s 6, in so far as it conferred authority to
take people into custody, and ss 16 and 67(1);) were at all times invalid.
Per McHugh J. The freedom of the "people of the C<Jmmonwealth"
and the "people of the States" from laws that prevent them from
associating with others, and from travelling, within and outside Australia,
for the purposes of the constitutionally prescribed system of government,
did not at the relevant time extend to the residents of the Northern
territory who had no part to play in the constitutionally prescribed system
of government.
Pcr Gummow J. There is no implied constitutional freedom of
association for political, cultural and familial purp<Jses. Even if such an
190CLRIJ OF AUSTRALIA 5
implied l:OTIstitutional freedom exists, th.e provisions of the Ordinance Il C OF !\
were Susl:cptihle or " construction which did not infringe any implied 1996-t9Y7

constitutional freedom of movement.

KRlGhR
Genocide Convention
,
THE
The Convention on the Prevention ilm.l Punishment of the Crime of COM.'1<lN-
Genocide was ratified by Australia on 8 July 1949 and entered inlo forr;c "1O,'Lnl
on 12 January 1951. Parliamentary approval to the ratification was given
by the Genocide Convention Act 1949 (Oh) bUllhc Convention was not
implemented by legislation. Genocide was defined by the Convention as
"any of the following acts committed with intent to destroy. in whole or
in part, a national, ethnical, racial or religious group, as such: (I)
(b) Causing serious bodily or mental harm to members of the group;
(c) Dcliheratcly innicting on the group conditions of life calculated to
bring about its physical destruction in whole or in pan; (d)
(e) Forcibly transferring l:hildren of the group to :mother group".
Per curimn. The acts authorised hy the Ordinance were nOl within the
description of genocide in the Convention because the Ordinance did not
authorise the wmmission of acts with the intent to which the Convention
rcfcrred.
Pn Dawson 1. The provisions of thc Convcntion do not from part of
domestic law The principle that legislation is to be construcd so far as
JXlssible in al:cordanl:e with established rules of international law applies
only with respect to legislation enacted after the establishment of the
relevant rule of international law.
Pcr Gummow 1. When the Administration Act was enacted the
Commonwealth's legislative power was not constrained by neD~ssary
inrerence by a freedom or immunity from any law or executive act
providing for or having a purpose, the effect or likely cffel:t of the
destTllclion, in whole or in part, of a racial or ethnk group or of its
language or culture.
Section /22 (Territories flower)
Per Brennan CJ. The challenged laws wcrc exprcssed to operate in thc
Northern Territory and to apply to persons within the Territory, thereby
establishing a sufficicnt connection to allract the prima facic support of
s 122.
Pn Dawson J, McHugh J agreeing. Whether or not a law is
reasonably l:apable of being seen as appropriate and adapted to the end
of governing the Northern Territory is not determinativc of its validity.
All that need be shown to support an exercise of power under s 122 is
that there is a sufficient nexus hetween the law and the Territory.
Per Toohey J. Proportionality is not relevant to charaderisation or
laws passed under s 122. The Ordinance relates to an aspel:t of the
government of the Northern Territory and bears on certain inhabitants by
reference only to plm:es and circumstances within the Territory. It is
therefore a law for its government.
Per Gaudron J. Sedion 122 has a purposivc elcmctll ill that it
authorises Jaws "for Ihe government of [a] Territory" lienee not every
law which operates in a Territory is a law of the government of that
Territory But the Ordinance was a law which operated only on people,
places and events in a Territory and it served 110 distinct constitutional
6 HIGH COURT [1996-1997
HCo,A purpose apart from its government: it was therefore a law for the

-
19%1997

KRUGER
government of the Northern Territory within s 122,

Sec/ion 116 (Prohibition offree exercise of relifl,ion)

"
THE Per Brennan C1. None of the challenged laws had the purpose of
COMMON-
achil;ving an objc<.:t forbidden by s 1Hi.
WEALTH
Per Dawson J, McHugh J agreeing. Section 116 does not restrict the
exercise of power under s 122.
Per Toohey J. The Ordinance did not eviuence a purpose of
prohibiting the free exercise of the religion of the Aboriginal people.
Per Gaudron J. Section 122 is confined by s 116. In delennining
whether a law infringes s 116, the only matter to be taken into account is
whether it has a prescribed purpose. As it was not pleaded either that the
Ordinance was necessary for the protection or preservation of Aboriginal
people or that its purpose was one uncorrected with the free exercise of
religion, the plea was no answer to the question whether the Ordinance
was invalid by reason that it infringed s 116 and, thus, that question
could not be detennined.
Per Gummow J, Dawson J agreeing. The critical question in
infringement of s 116 h whether the purpose of the law (scilthe end or
object served) is to prohibit the frec cxcrcise of religion. Nothing appears
in the Ordinance which suggests that it had an impennissible purpose.
Semble s 122 is subject to s I 16.
Limitation lal<'s
Per Gaudron and Toohey JJ. In its application to the High Cout1, s 79
of the Judiciary Act 1903 (Cth) opermes to "pick up" the laws of the
State or Territory in which a matter is heard and detennined. Section 56
of the Limilalioll Act 1985 (ACT) (which provides that if the substantive
law in, inter alia, another Territory is to govern a claim before a court in
the Tnritory, a limitation law of that Territory is to be regarded as part
of that substantive law) is capable of being "picked up" by s 79 of the
Judiciary Act. As the proceedings were being "heard and detennined" in
the Australian Capital Territory, it applied in them, and operated to
rendc.r the Limitation Act 1981 (!'IT) applicahle to the claims in both
cases.

QUESTIONS RESERVED under High Cout1 Rules, 0 35, r 2.

In Kruger v The Commonwealth, the first fiye plaintiffs alleged that
they had been remoyed and thereafter detained and kept away from
their mothers and families purportedly pursuant to ss 6 and 16 of
Aborigi/lOls Ordinance 1918 (NT). lbe sixth plaintiff alleged that she
was the mother of a child who had been remoyed from her and
detained and kept in the care, custody and/or control of the Director of
Native Affairs without her consent purportedly pursuant to ss 6 and 16
of that Ordinance and/or the regulations made thereunder. That
proceedin.g was issued in the Melhnurne office of the High Court
Registry. Each of the plaintiffs in Bray j} The Commonwealth alleged
that he or she had been removed and thereafter detained and kept away
from his or her mother and family pursuant to ss 6 and 16 of the
190 CLR 1J OF AUSTRALIA 7

Ordinance and/or the regulations madc thereunder. That proceeding HCOFA

1996]997
was issucd in the Darwin office of the High Court Registry. ~

In each proceeding, the plaintiffs alleged that the Ordinance, and in

,
KRUGER

particular ss 6, 16 and 17, and, in so far as it purported to confer THH

power to make or amend the Regulations under the Aboriginals COMMON-
WEALTH
Ordinance 1918 and the Aboriginals Regulations 1933, s 67 of the
Ordinance, were at all material times invalid as being beyond the
power which could be conferred on the makers of those laws under the
Constitution and in particular s 122 and as being beyond the power
conferred respectively on the makers of thosc laws, by reason that
they: 0) were conlrary to an implied constitutional right to freedom
andlor immunity from rcmoval and detention without due process of
law in the exercise of thc jwlicial power of the Commonwealth or
judicial power under the laws of the Commonwealth; (ii) purported to
confer judicial power of the Commonwealth (A) on persons not
appointed under or entitled to exercise the judicial power of the
Commonwealth in accordance with Ch 1Il of the Constitution or
judicial powcr under thc laws of the Commonwealth; (B) other than on
Ch II courts or courts established under the laws of the Common-
wealth; (iii) were contrary to an implied constitutional right to or
guarantee of legal equality; (iv) were contrary to an implied
constitutional right 10 or guarantee of freedom of movement and
association; (v) were contrary to an implied constitutional right to
freedom or immunity from laws or executive acts (A) provitling for or
having the purpose or effect or likely effeet of the destruction in whole
nr in part of a mcial group or its language or culture; (B) subjecting
the children of a racial or ethnic group to removal and detention;
(C) constituting or authorising the crime against humanity of genocide
hy, inter alia, provitling for, eonstituting or authorising (a) the removal
and tmnsfer of children of a racial or ethnic group in a manner
calculated to bring about the group's physical destruction in whole or
in part; (b) actions which had the purposes, the effect or likely effect
of causing serious mental hann to members of the group; and (e) the
deliberate infliction on a racial or cthnic group of conditions of life
calculated to bring about its physical destruction in whole or in part;
(vi) were not laws for the government of the Northern Territory; and
(vii) were laws for prohibiting the free exercise of religion contrary to
s 116 of the Constitution,
The plaintiffs further eontended that the Northern Territory
Administration Act 1910 (Cth), the Northern Territory Acceptance Act
1910 (Cth) and the Northern Australia Act 1926 (Cth) were invalid in
so far as they purported 10 authorise the enactment or amendment of
the Ordinance or, alternatively, the enactment or amendment of ss 6,
16 anti 17, and in so far as it purported to confer the power to make or
8 HIGH COURT [1996-1997

H COFA amend the 191R regulations and the 1933 regulations, s 67 of the
19%1997
Ahoriginals Ordinance. They also alleged that their removal and
KReCER detention, and, in the case of the sixth plaintiff In Kruger v The
THE
Commonwealth, the child of the sixth plaintiff, was in breach of the
COM""" constitutional rights, guarantees, immunities, freedoms and provisions
WEALTIl
pleaded, constituted wrongful imprisonment and deprivation of liberty,
and that each plaintiff had sutTered loss and damage for which he or
she was entitled to recover compensation from the Commonwealth.
The defendant pleaded that: (a) if the power conferred by s 122 of
the Constitution was at any material time restricted by any of the
constitutional freedoms pleaded by the plaintiffs. the Ordinance was
not contrary to any such freedom because it was enacted and amended
for the purpose of the protection of persons of the Aboriginal race, and
was capable of being reasonably considered or alternatively was
appropriate and adapted to the achievement of that purpose; (h) the
constitutional validity of the Ordinance fell to he considered hy
reference to the standards and perceptions prevailing at the time of its
enactment or operation and not hy reference to contemporary standards
and perceptions.
Brennan CJ reserved the questions for the consideration of the Full
Court in each proceeding that are set out at pp 176-180 post.
N H M Forsyth QC and R A Finkelstein QC, for the plaintiffs.
N H M Forsyth Qc' Sections 6 and 16 of the Aboriginals Ordinance
1918 (NT), together with reg 3 of the Regulations made under the
Aboriginals Ordinance 1918 and reg 6 of the Aboriginals Regulations
1933. made under s 67(1) of the Ordinance, provided for the arbitrary
removal and detention of "Aboriginals" and ""half-castes" by officers
of the Commonwealth employed in the administration of the Northern
Territory. With limited exceptions, involuntary detention is of its
nature punitive or penal (I) and is an exclusively judicial function (2).
The removal and detention powers conferred by the Ordinance and
regulations did not bear a welfare or protective character so that they
could fall within the exceptions. No judicial authority or other form of
due process was required for the exercise of the powers of removal
and detention, nor was there any requirement that they be exercised
judicially. Hence the Ordinance and regulations infringed the doctrine
of separation of powers. That doctrine applies to all laws made by the
Commonwealth Parliament. including those made under s 122 of the
Constitution, and all laws passed under their authority. No decision on

(I) Chu KhenK Lim " Minis/afilr lmmiXrtlllOn (1992) 176 CLR I m 27-28.
(2) Chu KhenK Lim v Minister for lmmiRY<l/io/1 (1992) 176 CLR I at 27, 28-29:
Willil1ms \. The Queen (986) 161 CLR 278; Blackslone. Commenume.l, 17th cd
(1830), Bk I, pp 136-137.
190 CLR II OF AUSTRALIA 9

the point requires a different conclusion. The proposition that Ch III HCOFA
has no application to the territories (3) is too broad, and is not required
by the cases in which it has been hdd that Territory courts created
pursuant to s 122 arc not federal courts (4) and that those courts are
-
19%-1997

KRUGER

not courts exercising federal jurisdiction (5) for the purposes of 55 71, T",
72 or 73 or courts exercising the judicial power of the Common- C"M"""
W'EALTIJ

wealth (6). The internal territories at least (7) fonn an integral part of
the Commonwealth (8) and s 122 should not be read as if disjoined
from the rest of the Constitution (9). The application of the separation
of powers 10 s 122 laws may be achieved in three ways: by overruling
decisions that Territory courts are not Ch III courts; by holding that
Territory courts are Ch III courts for purposes other than those the
subject of Ihe decisions; or by holding that the separation of powers in
its application to s 122 arises from provisions of the Constitution other
than Ch III, such as ss 1 and 61 (0).
The common law doctrine of legal equality gained constitutional
status at Federation conferring on all Australian citizens a right to
equality before and under, and equal protection of, Commonweahh
laws, and laws made under their authority (11). The existence of the
constitutional doctrine may be implied from the nature of the
Constitution as a compact to "unite in one indissoluble Federal
Commonwealth" (12), which brought into existence one nation (13),
as well as the unitary nature of Australian law (14), and is inherent in

(3) R v Bernasconi (1915) 19 CLR f,29 at 635.

(4) Porter v '/lle K'ng; FJ parle Yee (1926) 37 CLR 432; SprtU/ v Herme.\ (1965) 114
CLR 226; Capillif TV & .Applianl"e" Pty Ltd,' Faln"lfl' (I971) 125 CLR 591;
cf Mainru v Cusrodian of Exproprialed Properly (1924) .l4 CLR 297.
(5) Porter r The K'ng; Ex parte Yee (l92iJ) 37 CLR 432 at 440: C"pillJl TV of
Appliances Pry Lid v Fal<:,mer (1971) 125 CLR 591.
(6) Porter \' The King; Ex parle Yee (1926) 37 CLR 432 at 441; Sprall \' Hermes
([965) 114 CLR 226 at 260.
(7) Sprttrr I' Hermes (1965) 114 r:LR 226 at 269-27 J, Cupiwl Dupliel/lllrs Pry Ltd r
Auslralian Capilal Terri"'r)' INo 1/ (1992) 177 CLR 248 at 279, 288; Srikurt v
Sle ...."r/ (1994) 181 CLR 548 at 581.
(8) Sprain" Herme" (1965) 114 CLR 226 at 269':270.
(9) Limtshed v lIke (1958) 99 CLR 132 at 140, 14L [42, 143-144, 145: AU.I'lralian
Capira{ Television PI)' Ltd v The Commollwealrli (1992) 177 CLR 106 at 222:
,lustra/I,m NariOfIit{ Aim'ays Ply Ltd" The Comn"l1/weallh ([945) 7! CLR 29 at
85; Sprarr v Hermes (1965) 114 CLR 226 al 277-278.
(10) Liyalla/{e v The Q~~eell [1967J AC 259 a1287-288
(II) uelh \' The Commonweallh (1992) 174 CLR 455 at 475. 502.
(I2) Preamble. covering ell 3 and 6 of Commonwealth '<! Au.<tralia CmmilUlion Aet
t900 (Imp).
(13) Siren V Queem/and Bar A.',"'ci{1I1"'~ (1989) 168 CLR 461 at -485. 548. 559-560.
(14) EreOl'ingloli v Codlemall (I989) 169 CLR 41 at 120. 134-135; MeK(jin v
R IV Miller of Co (SA) Ply Ud (19'l[) 174 CLR I at 46, 52, 53, 55; Slevens v
Head (1992) 176 CLR 433 at 461-462. 463; Sireer V Queensland Bar Assudl/tioll
(1989) I@CLR46I.u1485.512,531.559560: Theophallou.\ I' Herald of Weekly
Time.I' Ud (1994) 182 CLR 104.
10 HIGH COURT [1996-1997

H COF A the common citizenship of the Australian people (15). There are
19%.1997
examples in international jurisprudence of the application of the
](RUGE~ principle of legal equality which are appropriate guides for the
Australian constitutional doctrine (16). Differential treatment, other
'"'
COMMnN-
than to effect a compelling governmental interest (17), or otherwise by
WEALTll reference to considerations reasonably capable of being seen as
providing a rational and relevant basis for discriminatory treat-
ment (18), offend the doctrine. No relevant ditference between
Aboriginal, half-caste and white persons, children or adults, is
advanced which could justify the discrimination against the members
of the fonner racial groups effected by and under the Aboriginals
Ordinance. Any argument that the welfare and protection of
Aboriginal or half-caste people provided a compelling justification for
the removal and detention provisions of the Ordinance and regulations
is insupportable in the light of their tenns and of other provisions of
the legislation, It is relevant to have regard to general historical and
archival material such as administrators' reports, letters from the
administrator of the Territory to the Minister for the Interior, letters
from the Prime Minister and other statements of government policy to
understand the purpose for which the Ordinance was made, continued
and maintained.
There is a constitutional right to, and immunity from legislative and
executive restrictions on, freedom of movement and association for
political, cultural and familial purposes. A constitutional guarantee of
freedom of movement, at least between the States, was recognised in
R v Smithers: Ex parte Benson (19) and a constitutional freedom of
access to the seat of government was identified in Pioneer Express Pry
Ltd v Hotchkiss (20). In the United States a general implied right of
freedom of movement has been developed (21) from implied freedoms
to travel to the scat of government and have free access to
seaports (22) and to pass freely from State to State (23). There is

(15) Street v Queensland BM Association (1989) 168 CLR 461 at 55}

(16) Taytor v Strauder (1879) 100 US 664; Yh:k Wo ,. Hopkins (l~~6) lI8 US 356:
Ptessy v Ferguson (1896> 163 US 537 at 559: Brawn v BotJrd of EduCt/lion (I954)
347 US 483 aI 494; AJl.lnJnJ Constructors, Inc \' Pella. SeaefiJl)' oj
Tmn.lpor/I.I/ion (l99S) lIS S a 2CH7; R v Drybone.< (t 970) 9 DLR (3d) 473 aI
484; Andre.....! I' La..... SocieT)' of British Columbiu [19891 I SCR 143 at 152, 166,
171, 174, 183: South West Afriw Cases (Second Phase) [196611CJR 4 al 306.
(17) Gerhard)'.' Brown (1985) 159 CLR 70 at 126-127.
(18) Leeth V The Commonweatlh (1992) 174 CLR 455 al 489,
(19) (1912) 16CLR99,
(20) (1958) 101 CLR 536 aI 550.
i21} United Stales v GuesT (1966) 383 US 745 at 757758; Shapiro r Thompson (1969)
394 US 618 at 629-631; Kentl' Dulles (1958) 357 US 116 al 125 126.
(22) Cralldalt" Nevada (t868) 6 Wall 35 al43-44.
(23) T....ining v Ne .... Jersey (1908) 211 US 1~ at 97,
190 CLR 1] OF AUSTRALIA 11

suppon in Australian cases for a similar extension of the freedom (24). HCrlFA
Funhcr, freedoms of movement and association arc corollaries of
implied conslitutional freedom of political communication, as the
United States and Canadian decisions show. In the United States an
-,
1996[997

KRL'uER

TilE
implied general freedom of association has been derived from the CO>iMON-
First (25) and Fourteenth (26) Amendments to the Constitution, as a WEALTH

necessary complement to the rights of free speech, assembly and

[letition guaranteed by those Amendments (27). The freedoms protect
association for a variety of purposes, including rcligious, cultural and
familial purposes. Freedom of association received similar recognition
in Canada, even before it was constitutionally entrenched by s 2(d) of
the Charter of Rights alld Freedoms (28). Freedom of association
promotes the attainment of collective goals and renders the achieve-
ment of individual goals possible. Removal and detention of the
plaintiffs under the Aboriginals Ordinance inhibited their freedom of
movement and association, has disabled them from taking part in the
social, cultural and political processes at work in their former
community and effectively precluded them from participating in
Tcrritory !clOd claims. The powers of removal and detention arc
disproportionate to any benevolent purpose which eould be said to
underlie the legislation.
The Constitution must be read in the light of common law
assumptions; further, certain common law freedoms have been
entrenched within its structure. Some fundament<ll human rights or
basic freedoms "lie so deep" (29) that they are immune from
h::gislative interference. Coke's pronouncement in Dr Bonham's
Case (30) that' 'when an Act of Parliament is against common "right
and reason, or repugnant, or impossible to be performed, the common
law will control it and adjudge such Act to he void" has received

(24) Blick r Bllwme (1976) 135 CLR 110 at 137; McGraw-Hind., (Au,'1) Pry Lid"
Smith (1979) 144 CLR 633 at 670; Alisefl Trl1ll.~pllrr fndllJlries (Operations) Pty
Ltd" The Commollwel1lth (1977) 139 CLR 54 al 87-88; Miller" TCN Clulllllel 9
Pry Lid (1986) 161 CLR 557 at 581-583; Uebergang r AustralilJfi Wheal Bmud
(l980) 145 CLR 266 at 31L Ausfraliun Cifl'ilill Tele\'I"i"" PlY Lid r The
Comnumweullh (1992) 177 CLR 106 at212: cf Cole v Wlliljield(1988) 165 CLR
360
(25) Gibsoll \. Flurida ugi.>!ulive fm'e.rligmion Commillee (1963) 372 US 539;
Roberts. Acting Commis.<ioll. Minllnota Def'<lrIment or Human Righl.l v United
StUll'S laveen (1984) 468 US 609.
(26) Gihson v Florida ugisluthe lllvnfigUlion COlf/millee (I963) 372 US 539:
NllIio1l<.d Assodalion for Adrunceme/ll (!r Colored People \' AlablJma (1958) 357
US 449: Bates eI ul \' Cir)' of Little Rock (1960) 361 US 516,
(27) Healy I" lame.' (1972) 40R US 169 at 181
(28) Alhertll UniOIl of Provillcial Employees \' Al/omeyGeneral (Alberta) [1987J
lSCR313.
(29) Tuylor r NI'l'; Zealalld Poultry Boord [1984J 1 NZLR 394 at 398.
(30) (1608) 8 Co Rep IUb at I 18a [77 ER 646 at 682J.
12 HIGH COURT [1996-1997

He"F A frequent support (31), while support for an absolutist VieW of

-,
1996-1997

KRUOER
parliamentary supremacy has declined (32). The fundamental rights
doctrine has expressly been left open by the High Court (33). Ultimate
sovereignty lies in the hands of the Australian people (34) and it must
THE
COMMON_
be assumed that if they had wished to confer on the Parliament the
"'EM,TII power to override fundamental rights and common law liberties they
would have given such authorisation in clear and unequivocal
tenns (35). It is an accepted canon of statutory construction that
Parliament will be presumed not to have intended to abrogate
fundamental human rights and freedoms (36); this principle should
extend to interpretation of the Constitution (37). The Aborif;inuls
Ordinance provided for and authorised the deprivation of Ahongmals
and half-castes in the Northern Territory of the most basic of
freedoms; the progenitors of the constitutional compact can never
mtcnded Parliament to have power to enact such a law. Further, the
acts of the Commonwealth authorised by and carried out under the

(31) L v M [1979J 2 :-.IZLR 5 19 ~t 527; Brader v Min'siry of Tran.'porl [191\ I] I NZLR

73 at 78: Ne .... Lealand Drh-ers' As.weiatlon I" Ne-e.- Zea/ami Road Carrier.' [1982]
I NZLR :\74 at 390: FnueY v S/(l/e Ser.-iees Commi,mon [1984] I NZLR 116 at
121; raylor.' ,Iy'el< Zeat.md POUlrlJ Board [1984] I NZLR 394 at 398: Keenall v
AllomeyGelleral(NZ) [191\6] I SZLR 241 at 244; Day vSw'lId!!e (1614) Hob 85
at 87 [80 ER 135 at 237]; Cal"';'I.' Case (1609) 7 Co Rep la at 12b-14 [77 ER
377 at 391-3941; Oppenheimer,' Cattem",le [1976] AC 249: SOli/ii West AIri""
Cases 1Second Pila.,e) [1966J rCJR 4 at 295; Buildinf.i CO/wrue/ioll lIIplli)'u'\
((lid Bllilders' Lilbourer.~ Federalion '~f Ne,,' Smllh \Vllies \' ""fini.Her fi!f Induslrial
Relations (1986) 7 ;-.,rSWLR 372 at 387: AIl~n, "Legislative Supremacy and thc
Rule or the Law: Democracy and Conslitulionali,m", C"mblidw I",IU' journol,
vol 44 (l985) III, at pp 17-IK; Allan, Luw, Uherrr and Jlls/ice (1993). pp 686\!,
74, 77: Wintcrton, "The Briti:;h Grundnorm: P~rliamentary Supremacy Re-
examincd",l.m" Qlwnerlv Re\'iew, vol 92 (1<)76) 591, at P 613: Mann, "Britain's
Bill or Rights". I.a\,; Qlwrlerlr Re\'in", vol 94 (J 978) 5 I 2, at P 513
(::I2l Um\'eI'.,il) '!/ Woll"''!i{)l1~ v Men,'allr (lY1\3) 158 CLR 447 at 476-477: Lord
Denning, "Misuse of Power" _ Aus/rolitm UM journal, vol 55 (I Yl\ I) 720, at
P 723: Walker. "DiCey's Dubiou, D(}gm~ of Par!iament~I)' SovereigntY' A Reeent
Fr~y with Freedom of Religion" Au.,lralian lA"" .fm",,,,l. vol 59 (1985) 276, ~t
pp 21\3-21\4: Toohcy. "A Government of Law,. and :-.rot or Men?", Public UM
Rel"iel<'. vol 4 (IY93) 151\, at P 151\; Allen, UM, Liberty and jlls/ice (1993), pp 28,
68-69,131; Kennett. -'Individual Rights, the High Court and the Comtilulion",
Melbourne U"ivenitr 1~lw Review, vol 19 (1994) 581. m p 583.
(33) Uni"" Slewn"hip "t'AH-,mllia PrrLrd \' Kin!? (1988) 166 CLR I at 10.
(34) Au,,lraliwl Capiwl Televi.\im, Ply '.Id" The C,mll"tI/JIL'e,,{/1i 1l992) 177 CLR 106
at 137-138
(35) Toohey, A Govemmenl of Laws, and Not or Men?", Public f.aw Re\'iew, vol 4
(1993) 158, al p 170: R v SIW'" (J 91 5) 20 CLR 315 m 322-323
(36) Nmimmide Nnn PI\, 1.111 v WillJ (1992) 177 CLR I at 43; Coco \.' The Queen
(1994) 179 CLR 427 at 436ff; Pyneboard Ply Ltd ,. Trade Practices Cmnmisyitln
(19K3) 152 CI.R 328 at 341, PUller v MilWlwll (1908) 7 CLR 277 at 304: Sor!i"tld
Bros v Th,' Comllw1I\\'",dlh (1910) I I CLR 2'i& at 279: Melbourne Corpowt'o" \.'
Balf\' (1922) 31 CLR 174 m 206; N,wonal A.",is!<JIlce BO(jrd v' \vilki,lsoll [1952J
2 QB 648 at 6hl. Re 0 [1991] 2 QR 520 ~t 529,
(37) Toohey. "A Govemll1ent of Laws_ and NO! of Men"", Puhlic I.","' Rc\'ie,,. vol 4
(1993)15~.atp17{)
190 CLR I] OF AUSTRALIA 13

Ordinance constituted genocide within both the treaty (38) and HCorA
1996-1997
customary (39) meanings of the term. The prohibition on genocide has
at all material times been a rule of jus cogens and an obligation erga
omnes. Principles of international law may be resorted to in
TilE
interpreting municipal legislation and the powers of the executive (40); Cn,t.'10N-
a similar approach should be taken to constitutional interpretation. WEALTH

Nothing in s 122 or elsewhere in the Constitution indicates that those

who brought it into existence intended anything other than for the new
Australian feder<ltion to take its pl<lce in the international community
within the absolute limits on power set by that community via the
rules of jus cogens nor can they he taken 10 have intended to alienate
themselves from the protection of the prohibition on genocide.
Power under s 122 is delimited by subject matter (41). It is not a
general authority to make laws having general or remote connection
with a Territory; it is a mandate only to make laws for the government
of a Territory (42). A similar approach to that adopted in respect of
s 51 powers must be employed in relation to s 122. It has a purposive
quality. A proportionality test should be employed in determining the
validity of laws enacted under it (43). It cannot be said that the
Ordinance was, or was reasonahly capable of heing seen to be,
appropriate and adapted to the govcrnment of the Territory; its direct
impact on fundamental freedoms was so severe that it was on no view
proportionate to a welfare or protective purpose.
R A Finkelstein QC. There is a qualitative difference hetween s 6
and s 16 of the Aboriginals Ordinance. Under s 6, a protector assumes
a responsihility for the care, custody or control of an Aboriginal or
half-caste. Section 16 is ahsolute and imposes no such responsibility;
its object is to allow an Ahoriginal or half-cast flerson to he kept in a
particular place, whether or not it is desirahle in the interests of the
person.
The system of spiritual beliefs and practices of the Aboriginal
people satisfies any definition of religion in the cases (44). Judicial
notice has heen taken of the status of Aboriginal belief systems as a

(38) Convention on the Prevention and Punishment of the Crime of Genocide,

notification by Australia approved by Genocide C"nrenlion .'lei 1949 {Oil).
(39) Lemkin, Axi" Rule in F;~rope (1<)44): Lemkill. Genocide as a Crime Under
Internntional Law", Amaiwn Journal o{ IlllermH!O/ial Lmv, vol -'I t (1'147) 145, at
p 147.
(40) Minister for Immil;rali"'l (Jrld Elhnic Affair" .' Teoh (1995) 183 CLR 273: MilliMa
}in FOI'eigli AJfuirs and Trade r Maf;nlJ (1992) 37 FCR 298: Murray v DlreclOr.
F(1milySemCes (ACT) (1993) 116 FLR 321. Iii Fam LR 982: [1993] FLC 80,243,
(41) f.a"'shed v Lake (1958) 99 CLR 132 at 141
(42) AUIlmlian Capit(11 Televisio/l!'/)' Lid v Hie C""/nIl",..-e"lth (1992) 177 CLR 106
at 176.223-224.
(43) Cunliffe v The CottlmlJm.ealth (1994) 182 CLR 272.
(44) ego Adelaide Co ',{Jehovah.. Willles.>e.> 111<: \' The Cottll/lm'l>'l'ulth (1943) 67 CLR
116: Church ofllie New Failh v C",nmi",io/ler of!'ayroll T(n (VicO (1983) 154
CLR t20 at 136, 151, 174-175,
14 HIGH COURT [1996-1997

HCNA religion (45). The concept of religion extends to "acts.. done in

19%-IWi7
pursuance of religious beliefs" (46) and to "teaching and propagation
of religion, and to the practices and observances of religion" (47). The
notion of religion protected by s 116 necessarily imports a freedom to
THE
COMM""-
associate for rdigious purposes. Many religions. including those of the
WEAU" Aboriginal people, arc not practised in solitude but within family
groups anu clans. For an Aboriginal child, freedom of religion
necessitates that the child be not removed and kept apart from the
family, as such actions will prevent the means by which Aboriginal
religion is passed on through the generations. Preventing a child from
learning a religion which he or she would otherwise acquire in the
ordinaf)' course from the family intrudes on freedom of religion, as
docs preventing parents from teaching or passing on religious beliefs
to their children. The terms of s 116 require the Court to determine the
purpose of the law. Apart from the establishment limb of s 116, it is
not necessary to show that prohibition of the free exercise of religion
is the sole purpose of the law or to show that the law-maker knew that
its subject matter is a religion. Its effect of a law is a reliabk guide 10
its purpose (48). The impact of the Aboriginals Ordinance on freedom
of religion was not merely an incidental by-product, but a direct
conscquence, of the Ordinance and the executive acts under it. The law
was directed to, and adapted to the purpose of, removing Aboriginal
people from their culture and traditions. It prevented removed children
from learning, ohscrving, practising and participating in the religion of
their family and community, precluded their parents and families from
passing on the rites and secrets of their religion, and prevented all of
them from associating for religious purposes, making continuance of
the religious community impossible.
Section 122 is subject to all the constitutional freedoms contended
for by the plaintiffs whether express (s 116 (49)) or implicd (SO). None
arc rderable solely to the relationship hclween the Commonwealth and
the States (5 I). At Federation, the people of the Northern Territory

(45) ClIUI'ch u! rlie Nell" [-"min I' Commis.<loi1er of l'arroll Tax IVicli (1983) 154 CLR
120 a1 151. Ah"riKiml! '.p/.("I Ri/.(hls Movn>wIlI 1m: \. Sowh A".rlralia (the
Hindmanh '.llaml C,-,e) (1995) fJ4 SASR 55], Milirrpum v Nabalw Ply LTd
(1971) 17FLR 141 at ]67
(461 Adelaide Co of Jehovah's Wilrwsses IIIC V The Cm/llllmnveol1i1 (1943) 67 CLR 116
at 124: Ch"rch 0( Iile New Faith" Cummis,<iollu of Pilyroll Tax (I/iet) II~lU) 154
CLR ]20alI30.
(47) Adelaide Co of Jehowh's WilrleSSeS IIIC \' Tile Cml/llwllweo{lilIIY43) 67 CLR 116
~l 156; Church ojlhe New Fairh v Cmnmi<.<irmer (~! Payroll T,n (I/iet) (1983) 154
CLR 120al135.
(c1-8) C,1i1lilJe \. l1w Commonweallh (199c1-) ]82 CLR 272 at 387-388; Nmi"n",ide .""",.,.'
Ply Ud v Will", (1992) 177 CU{ 1 at 95; Illlomel'-(;etJeral (Viet); Ex rei Blad ,.
Tile Commonweallh (l981) ]46 CLR 559 at 615616,
(49) l.wmhed v wh (1958) 99 CLR 132 m 143: Teori T"" .' Ti,e Comn"''''realth
(1969) 119 CLR 564 at 570; Mromey-Gelleral (Vicn, I:;x rei BI"ck \ The
Commonwealth (1981) 146 CLR 559 at 619 (cf at 593); Adelaide Co of .leho""h '.I
Wimesus fnc v Tile Commonwealth (1943) 67 CLR 116 al 123,
(50) ,hmm!i(lll CUl'iwl Televi.<i'''' Ply Ltd v Tile Com""",wetdlh (1992) 177 CLR 106
al 176-177, 215':216 cf at 246: Tlleoplw/lou.< \' Herald & WeeklY nmes Ud (1994)
llCCLR 104alI40-142, 155-156.164.
(5]) cf Bueh"''''n v The C"mmO/Meallil (1913) 16 CLR 315,
190 CLR 11 OF AUSTRALIA 15

were part of South Australia and were therefore part of the one H COF A
19%-1997
indissoluble federal Commonwealth then created. At least hetween
1901 and 1911, when the Territory was surrendered to the KRVGER
Commonwealth, the people of the Territory had the benefit of s 116
THE
and any other freedoms implied in the Constitution. They did lose the COMMON-
benefit of those rights or freedoms in 1911. The people of the "'"AUH
Territory have always been part of the Commonwealth (52), and each
freedom pleaded, express or implied, must be taken to .mandate a
situation for the whole of the Commonwe:llth" (53). [He also referred
to Romney "II United States (54) and Dred Ii SCOtT Sanford (55).]
The defence pleads that the Aboriginal Ordinance was capahle of
being reasonably considered to he appropriate and adapted to the
achievement of the purpose of the law, namely, the protection and
preservation of persons of the Aboriginal race. Proportionality will not
assist to the extent that the Ordinance infringes the separation of
powers or intrudes upon fundamental rights and liherties which arc
beyond legislative reach. It may be accepted that the Constitution is a
living instrument which may be construed and applied to changing
facts and circumstances (56). To some extent, the scope of
constitutional freedoms may depend upon contemporary conditions.
But this docs not mean that the constitutional validity of the Ordinance
must be assessed by reference 10 societal perceptions and values which
prevailed in the Territory or the rest of the Commonwealth between
1918 and 1957. That is impermissible. Except to the extent that
perceptions may. in rare cases, form part of a relevant fact (as in, eg,
Theophanous v Herald & Week!), Times Ltd (57), they cannot affect a
law's constitutional validity.
The hreach by the defendant of the constitutional rights and
freedoms relied on by the plaintiffs in (a) enacting or authorising the
enactment of the Aboriginals Ordinunce; and (b) causing or
authorising activities carried out pursuant to the Ordinance, gave rise
to a personal right of action, independent of any common law cause of
action, in respect of which damages are recoverable. The concept of

{52) Covering cI 5; Theophamnl.> ,. Herald & Weekly Times Ltd (199-4) l82 CLR 104
at t64t65: Spmll v Herme.\ ([965) tl4 CLR 226 til 246-247: UIIIISh<!d v Luke
(J958) 99 CLR 132 at 140, 142. 148.
(53) Capital DupliCillOrs Pry Lrd \' Ausrmlian ClJpirlJl Terrirory IN" I} (1992) 177
CLR 248 M288.
(54) (l889) 136 US I at 44.
(55) (1856) 19 How 39 at 449.
(56) TheophmlOus ~Hemld & Weekly Times Ltd (1994) [82 CLR 104 at 143144, 171,
172. 174. 197: Inglis Clark, Studies ill AII,<fmlilm Con.,tiwtiOflal l~ .... (1901).
pp 2122: Quick and GaITan, The Allnotilled CtJJlUitlUioli of the Austmlian
Cmn/1J(mlrealth (190J), p 301: Sl'mll ~ Hermes (1965) 114 CLR 226 at 272.
(57) (1994) 182 CLR 104.
16 HIGH COURT [[996-1997

H enF A personal rights is not unknown to the Constitution: see 55 116 (58),
1996-1997
~
117 (59), 84 (60). James v The Commonwealth (61) and similar cases
which held that a breach of s 92 will not give risc to a cause of action
,
KRnlER
were hased on a view of s 92 which is now outdated and they should
THE
COMMON
be reconsidered. The decisions on the implied constitutional freedom
WEALTH of political discussion leave open the question whether it is a source of
positive rights. A number of the judgments suggest that it does (62).
There are similar indications in the cases supporting the status as a
positive constitutional right of the guarantee of duc process of law
arising by virlue of the separation of powers (63), the doctrine of
equality beforc the law (64), the freedom of movement and associ-
ation (65); and the freedom of the religion under s 116 (66). In other
Jurisdictions, breaches of implied and exprcss constitutional rights
have bccn held to give rise to private rights to damages. In Kennedy v
Ireland (67), damages were awarded for a breach of an implied
constitutional right to privacy. In Ashby v While (68), Holt CJ held the
plaintiff had a right to vote in an election for a member of Parliament
and would be entitled to a remedy against a returning officer who
refused to admit his vote. In Maharaj v Attorney-General (Trinidad
and Tobago} {No 2] (69), the plaintiff, who had heen falsely
imprisoned, recovered damages for breach of constitutional rights. [He
also referred Iu Lord v Allison (70).1 In Simpson v Attomey-General
(NZ) (71), monetary compensation was awarded for a breach of the

(581 Adelaide Co or Jelwm!l's Wllilesses file I' "tlie COlllnlOlll<e<iflh (l'l-'l3) 67 CLR
116: ClIIJrcll of llie !'oIe'" Failli v COllllllis.<loner of Panoll Tax (Vin) (1983) 154
eLR 120,
(59) Sircer \. Queem/and 8uI A,,,,,'imIOll (19891 168 CLR 4(,1, Cilll/!!Je \. The
COllwlOm,ea/th (l9'l4) 182 CLR 272
(60) MeDo1lohi r Viuorhi (1937) 58 CLR 146: Pemberlof! \' The Comlllom,,,,,111t
(1933) 49 CLR 382, Flill/ l' Tlie Com/llo/lweallh (1932) 47 CLR 274_
(61) (939) 62 CLR 339.
(62) AlI'lrall,U/ Cap/wi Te/Hisi"n Ply '.ttl" The CO/ll/llo",.eafth (1992) 177 CLR 106
~t 144,227.235,240: TheophwltJlJ,1' .- Herold & Weeklv Times Ltd (l994) 18~
CLR 104 al206. 214 d at 167-168_
(6J) Slleet L' Queells/and Ear Association (1989) 168 CLR 461 at 521-522: Re TraLn;
Et parte Ryall (19H9) 166 CLR 518 Ul 574, 5~0, 581, PO/YUk/IO\'lcil v nle
COIIIII!ullweo!th (1991) 172 CLR 501 Ul 719: Vlcrorla I' AU.\Ira!ian Buifding
COlls/meliml t:lllplurees' alld Builders Lobourers' Federollull (982) 152 CLR 25
at 107-111
(64) Leeth,' Tire C",IIII/om.'caftil (t ')')21 t 74 CLR 455 Ul 4~5,
(65) R \' Smithers; Fx !'orte RellwJJl (l912) 16 CLR 99 al lOR, 109-110, 119: Elick \'
flavone (t976) t35 CLR ItO Ul 137: UeberganK l' Aus/ro!lurl Wlleat floard(I980)
145 CLR 266 at 311312,
(66) At/ome,--General (l,-'idJ. Ex rei Black ,- Tire Comm('"\t-eolth (1981) t-'l6 CLR 559
at 623,
(67) [1987] IR 587_
(68) (170,) 21.d Raym ')38[92 ER 126J_
(69) [1979] AC 385_
(701 (1986) 3 BCLR (2d1 300,
(711 [1994J -' ~ZLR 6(;7
190 CLR I] OF AUSTRALIA 17

proscription on unreasonable search and seizure in the New Zealand H Co,;A

1996-1997
Bill of Rights, notwithstanding the absence of an express enforcement
provisiun. [He also referred to R v Goodwin (72) and Bivens v Six KRCGE~
Unknown Named Agents afthe Federal Bureau 0.( Narcotics (73).J The
personal right of citizens under the Constitution is the corollary of the '"'
ell""ON
limitation on parliamentary power; atlempts to draw fine distinctions WEALTH

between types of constitutional rights and freedOins or to limit the

manner in which they may be vindicated risk nullifying them. It is a
right against anyhody who might interfere with it, the Crown or
another citizen (74). The remedies to \lindicate such a right should be
those under the general law, common law and equity appropriate in the
circumstances. There should not he any theoretical limitation on the
relief which can be granted. [McHUGH 1. Why does not s 78 of the
Constitution indicate that the Commonwealth cannot be sued unless
the Parliament enacts enahling legislation'!] Because the right arises
out of the Constitution. If that is wrong, we rely on s 64 of the
Judiciary Act 1903 (Oh). Just as there is no difference in terms of
enfon:eahility and available remedy hetween implied and express
terms in a contract, the fact that a right is implied in the Constitution
should make no difference to the availabililY of an appropriate remedy.
No statutory limitation, whether enacted by the Commonwealth, a
State or a Territury, applies to a constitutiunal cause of action. The
Constitution is paramount. Further State and Territory legislatures and
even, the Commonwealth legislature, lack power to limit an
entitlement to invuke the original jurisdiction of the High Coun under
s 75(iij) of the Constitution. Even if it could, no limitation law
purports to apply to constitutional claims. Nor is there a limitation law
which can apply to the plaintiffs' common law claims. Their
constitutional and common law claims tog~ther cunstitule a non-
servable "matter' within the jurisdiction of the High Court under
ss 75(iii) and 76(i) of the Constitution and s 30(a) of the Judiciary
Act (75) because of their shared factual basis, If this were not so, in the
absence of an applicable Commonwealth limitation law, s 79 of the
Judiciary Act does not pick up any relevant State or Territory law
hecause it applies only to courts exercising jurisdiction "in" a
particular State or Territory. The cases which assume that the High
Coun exercises jurisdiction "in" a State or Territory (76) predate
changes to the administrative structure of the High Court. The present
structure, involving the cstahlishment of a single registry, with a
number of satellite offices (77), and the Australia-wide jurisdiction of

(72) [1'I'l312 NZLR 153.

(73) (1971)4O:JUS388,
(74) Me,kelt" (""m.1 to"'pair ire(//I,I I I 973] IR 121
(75) Philip Moms 1/1(''' Adam P Brr",,, Mute rash'orls Ply Lid (1981) 1'1-8 CLR 457
(761 eg. ('ennuI! .' YOWl/( (19(,4) I JO CLR H;2.
(77) H'Ii" C"UrI ',fAuslmlia Au 1979 (Cth). > 30,
18 HIGH COURT [1996-1997

HCor-A the COllrt (78), make this premise untenable. The Commonwealth ha.~
19%-1997
not enacted an applicable limitation law. Cases which suggest that
KRUGE~ actions in 10ft in the original jurisdiction of the High Court are
governed by the limitation law of the cause as the limitation law of the
THE
CnMMO:<-
forum (79), based on s 56 or s 64 of the Judiciiol}' Act, proceed on a
WIlJ\LTIl false premise, as claims in tort against the Commonwealth can be
brought under s 39(2) of the Judiciary Act in courts which do not
exercise jurisdiction under s 56 and which adopt the same choice of
law principles as in actions between suhjects under s 79 (80). State
laws such as s 5 of the Chuice of Law (Limitatiun Periods) Act 1993
(Viet) which provide that, if lhe substantive law of another place is to
govern a claim before a court of the relevant State, a limitation law of
that place is to be regarded as part of the substantive law of that place
cannot be picked up withoul modification by s 79 of the Judiciary
Act (81).
G Griffith QC, Solicitor-General for the Commonwealth, and
S J Gage/a (with them M A Perry and C R Staker), for the defendant.
G Griffith QC. The removal and detention of Aboriginal children in
the circumstances envisaged by the Aburiginals Ordinance, though
contrary to contemporary standards of morality and social justice, was
not unconstitutionaL The terms of the Ordinance were premised on the
prevailing view that Aboriginal people as a class stood in need of
special care and assistance and were incapable of managing their
affairs in the same way as the population generally The intention of
the Ordinance was the care and protection of the Aboriginal people.
Section 7 which confers on the Chief Protector/Director the status of
legal guardian. reinforces what is implicit: the discretionary powers
under the protective provisions could not be exercised for a purpose
inconsistent with the welfare of the Aboriginal person concerned or the
Aboriginal people generally nor In any manner otherwise
-unconstitutiona1. [He referred to RuD' Ii Chambers (82).] The exercise
of those powers was subject to judicial review.
The power under s 122 of the Constitution is unlimited by reference
to specific subject matter (R3). It is no less expansive than the
legislative powers of the Imperial or State Parliaments. There is a
sufficient nexus between the Ordinance and the Northern Territory
bcc:ause it operates upon persons or things within the Territory. The
words "for the gO\iernment of any Territory" are not words of

OR} McKain r R W Miller &: Co (SA) Pry f.td (1991) 174 CLR J at 35,
(79) Sudl!e v Tile Commonwealth (1967) J l6 CLR 353: The Commo",n,,,lth ,- Mewell
(1994) 126ALR39l
(80) BreariliglOlIl' Godlenum (InS) 169 CLR 41
(81) C"mmi,moner of St",,,p DM/ies (NSW) \' Owens (No 2J (1953) 88 CLR 168,
(82) Unrcpmtcd: Supreme Court "rtlle J\;T (Kricwaldt J): 5 April 1956.
(83) Spratt" Herm!", (196'i) 114 CLR 226: Teorl Till! v Ti,e C"mm"nlH'alth (1969)
1\9 CLR 564.
 190 CLR I] OF AUSTRALIA 19

limitation; they emphasise that the power encompasses the determi- HCOF A
nation of the means of government as well as the execution of its
functions. The validity of the Ordinance IS not tested by
proportionality. The grants of power under the Northern Terri/ory
-,
19%-1997

KRL'GER

TilE
(Administration) Act 1910 (Cth) and the Northern Australia Act 1926 Co~t."o~
(Cth) pursuant to which the Ordinance was made and amended contain l'iEALl1l
no relevant enabling purpose hy reference to which a test of
proportionality can be applied. Many provisions of the Constitution
have been held not to apply to s 122 - eg, s 55 (84), s 80 (85),
s 72 (86), s 73 (87), s 51(xxxi) (88), ss 7 and 24 (89), s 118 (90) and
s 52(i) (91). The fact that s 90 has been held to apply 10 s 122 (92)
does not provide a basis for assuming that other constitutional
limitations apply to it.
The Constitution is interpreted by its language and structure, and not
by reference to extrinsic matters such as "the nature of our society'
Implications must be securely based, and must be "logically or
practically necessary for the preservation of the integrity of thai
structure" (93). The drawing of analogies between the United States
Constitution and other constitutions incorporating a hill of rights and
the Australian which eschewed one are unhelpful in delennining the
implications from our Constitution. The assertion that its framers
deliherately chose to communicate intentions hy implication is
implausible. Acceptance of the argument that if the Australian people
had wished to confer on Parliament power to override fundamental
rights and common law liberties they would have done so in
unequivocal terms would involve a reversal of the manner in which the
Constitution has heen construed. Recent cases cited hy the
plaintiffs (94) rest on doubtful historical foundations. The principle of
statutory construction which presumes that, in the absence of a clear.
contrary intention. Parliament did not intend to derogate from

(84) Bue/llma/l v Tile C"'I/mill/Wealll, (1913) 16 CLR ][5.

(85) R" BemaJColli (1915) 19 CLR 529,
(86) Porrer v Tile KIIIK: Ex parre Chi" Ma" ree ([926) 37 CLK -'132: Spr<ln r Hermes
(1965)114CLR225.
(87) Capllul TV & Applia/lce\" Ny f.td l' f"OIcOllef (1971) 125 CLR 591
(R8) Teori Tau l" Tile C"nmumweallh (1959) 119 CLR 564: GWllboll1i r Rel"I"le
Samanlha Ltd ([ 995) 69 ALJR 752 at 754-755; 131 ALR 263 at 266-267_
(89) Weslern A,mralill I" The COnlmon\i-eullh (1975) 134 CLR 10[; Queensland v The
C"'llmo/lwe"lth (1977) 139 CLR 585.
(90) A/ldemm v Eric AlllierwJII Rudio &:TV Pry Ltd (l9(5) 114 CLR 20; Breal";/lKIOII
1 God/ell/WI (1988) 169 CLR 41
(91) SriJ;,m v S,elWrI (1994) 1H1 CLR 548.
(92) Cupiwl Duplicator< Pry /.Id ,. AU.'lraliali Capiwl j'uritory' [No IJ (1992) 177
CLR 248,
(93) AIf.'/I'a/i<m C"pilal TeI""i"i"/l I'ly /Jd v Tlte Conllll(lIIweallh (1992) 177 CLR 106
at 134-135
(94) New lea/a/ld Driver,r A"\,,ciatimt r New Zell!<lIId Roud Carrier.< [1982] I NZLR
374: Fmur v SUlIe Senices Commi.'-";()l1 [19R41 1 Nl.LK 116: Taylor v Ne ..'
Zealand l'oldtry Board [1984] I NZLR 394.
20 HIGH COURT [1996-1997

HeoF A fundamental common law rights or human rights does not apply to
1996-1997
~
construction of the Constitution itself. Further, the common law
KRUGER principles relied upon by the plaintiffs have not been shown to exist in
1900.
TIfE
C()r-t~10!'J
The requirement of the separation of judicial power in the
",MUll Constitution does restrict powers under s 122. Moreover, the impugned
provisions of the Ordinance do no! infringe any such requirement. The
implication of the separation of judicial power has been construed as a
limitation upon powers under s 51 (95). But Spratt 1/ Hermes (96) and
Capital TV & Appliances Ply Ltd v Falconer (97) show that ss 71. 72
and 73, from which the implication of the separation of powers arises,
do not apply to s 122. Leave should not be granted to reopen those
decisions (98). If it is, the settled doctrine should be maintained.
Section 71 vests the judicial power of the Commonwealth in
., federal" courts and courts exerclsmg "federal jurisdiction".
"Federal" relates to powers shared with the States only. Article IV,
s 3(2) of the United States Constitution, upon which s 122 was broadly
modelled, was never interpreted as requiring the separation of judicial
power in the territories (99). The separation of judicial power was not
an established feature of the constitutional position of the Australian
colontes before Federation nor of the States after Federation. Further,
the power conkrred by s 122 was designed to cover hoth internal and
external territories at various levels of development, the circumstances
of which may have been wholly inconsistent with the effective
maintenance of a separate judiciary. The judicial power has heen
validly conferred on bodics other than Ch III couns pursuant to
constitutional provisions outside Ch III. eg, s 49 (100) and
s 51(vi) (101). As a guarantce of due process, the separation of judicial
power is not absolute and unqualified.
The powers under the Ordinance were not judicial. Not all powcrs
of involuntary detention arc judicial, and the categories of non-
punitive, involuntary detention arc not closed (102). Whether a power
to detain persons ur take them into custody is punitive depends on
whether the custody can reasonably be capable of being seen as having
a legitimate, non-punitive object. and whether the power is reasonably
c:1pable of being seen as necess(lry for those purposes (103). It is
apparent from the Ordinance that the purpose of the relevant sections
was welfare and protection. They had no punitive object. Furthcr, they

(<)5) 0", KhenK Lim \' Mini.ller!ilrlmmit<r<Jfioll (1992) 176 CLR j

(96) (1965) 114CLR 226
(97) (1971) 125 Cl.R 591
(98) John L' Federal CO/ll/lli.<siOlwr 4 T{Lwtion (1989) 166 eLR 417.
(\191 American !n.<lImm:e Co v Canfer (J l\28) 26 US 511
(100) R ,. Ricl"lnl.l"; b parle Fiqwrrick IIml Browne (1955) 92 ClR 15?
(IOJ) Re Trace)": F.x p"rle Ryan (I\189) 166 CLR 518.
(102) Chu Kheng Lim \' /I1llliSlerfiJ1' !mmigwlitm (19\12) 176 eLR J.
(103) elm Kl1ell!( !.im \' Mini,'fer!,,' Immit<wlivlI (1992) 176 CLR I
l(j(} CLR I] OF AUSTRALIA 21

did not go beyond what, by the standards of the time, waS reasonably He"F A
19%-1997
capable of being seen as necessary for the purpose of looking after the
welfare and protection of Aboriginal children. K"LGlR
No general right to legal equality in the sense of freedom from
TH~
discriminatory ,treatment requiring equality before and under. and
C<',".'1"k
equal protection of, Commonwealth law or laws made under the WEALTH

authority of the Commonwealth can be implied into the Constitution.

Nor does the Constitution, expressly or by implication, create a
constitutional right to freedom from legislative or executive discrimi-
nation (104). TIle common law principle of equality under the law
referred to by Deane and Toohey JJ in Leeth (105) is concerned with
procedural equality, and not wilh the content of laws. Nor could it be
broader without impinging on the ultimate supremacy of Parliament.
No proper basis has been established for drawing an implication of
equality. lL is in direct contradiction of the framers' deliberate rejection
of a proposal to include a provision modelled on the United States
Fourtcenth Amendment. Nothing in the structure of the Constitution
founds the implication; concepts of popular sovereignty and common
citizenship arc too broad and abstract. The question of where
sovereignty lies is conceptually distinct from, and has no necessary
impact on, the principle of the ultimate supremacy of Parliament.
Equality under the law is not logically or practically necessary for the
preservation of the representative structure established by the
Constitution. The duty of a court to extend "equal justice" docs not
allow or require it to rewrite a law it considers unjust or
discriminatory. The plaintiffs' argument also loses force when it is
recognised that the Constitution contains provisions eg, ss 51 (xxvi)
and 51(xix), which authorise discriminatory laws. Until 1967, the
Constitution contained provisions which specifically excluded Aborigi-
nal people for various purposes (ss 51(xxvi), 127). The Convention
Debates support the Commonwealth's position. In any event, a
doctrine of legal equality is not infringed by a law whieh discriminates
between people on grounds which, in the light of circumstances at the
time, are reasonably capable of being seen as providing a rational and
relevant basis for the discriminatory treatment (106),
No general freedom of movement or aSSOCiation has been implied
under the Constitution; nor is there a proper foundation for its
implication. The statement of Murphy J to the contrary in Buck )/
Barone (107) was disapproved in Miller r TeN Channel Nine Pty
Ltd (108). To the extent a freedom of association may be implied
correlative to the freedom of political communication. it must be

(104) reerll" The COnlllllJlHt'e"tth (1992) 174 CLR 455.

(105) Lath v The C",nmollweolrh (1992) 174CLH 455 m 4S5.
(106) Lee/h ,. The C",nnumweolrh (1992) 174 Clf{ 455 m 4SS,
(t07) {1976) 1:>5 CLR tlO at 137.
(lOS) (l9S6j 161 CLR 556.
22 HIGH COURT [1996-1997

IlCo.. A limited by its source in representative government. It would permit

1~%-1997
restrictions enacted to fulfil a legitimate purpose and appropriate anu
KRCGFR adapted to its fulfilment. It has not been held that s 122 is subject to
the freedom of political communication. No general freedom of
THE
COMMO';.
intrastate or intra-territorial rn()v~mcnt can be implied from the fact of
WEAl.n< federation (109). Although lower courts in the United States have
assumed that no distinction should be urawn between intrastate and
interstate movement and that both are subject [0 constitutional
protection, the Supreme Court has left the question open (110). II has
to be decided whether s 92 applies to s 122. The immunity from State
interference with movement to the seat of government recognised in
R v Smithers; Ex parte Benson (Ill) and Pioneer Express Pry Ltd v
Hotchkiss (112) may now be hcttcr e:\plained on the basis that it is an
aspect of freedom of political communication and that this constitutes
the sole imphcation from freedom of political communication relating
to movement. Even if powers under s 122 were restricted by eithcr a
freedom of association or of movement, the Ordinance did not infringe
either freedom.
International law is not a restraint on Commonwealth legislative
power. Further, the rights against ""genocide" alleged hy the plaintiffs,
in particular "cultural genocide", are wider than those now recognised
by international law. The ddinition of "genoeide" in the Genocide
Convention is authoritative in this regard. It shows that the relevant
acts must be carried out with the "intent to destroy, in whole or in
part, a national, ethmc, racial or religious group, as such". That intent
is not established.
Section 116 has not been held to apply to s 122. That the people of
the Northern Territory would have lost the benefit of s 116 upon
surrender of the Territory in 1911 does not tell against this proposition.
Even if s 116 limits the Commonwealth's puwer under s 122, the
impugned sections of the Ordinance do not infringe s 116. The
plaintiffs bave not pleaded that at the relevant time they or their
parents held a religion. Nor is there anything in the Ordinance to
indicate that its purpose was to prohibit the e:\ereise by Aboriginal
people of their religiorr (113). Even if the effect, rather than the
purpose, of the law were determinative of its compatibility with s 116,
the impact of the Ordinance on freedom of religion must be considered
agairrst its legitimate purpose irr determining whether the infringement
was impermissible. Section 116 is not infringed hy limitations
reasonably necessary fur the protection of the community and in the

(109) Pio"eer t\pre.<.< Pry t.Ed" HoICilki,<s (1958) 101 CLR 5~6
(110) Memorial Ho,'piwl \ Maricopa Coumy (1974) -'115 US 250,
(111)(1912)16CLR99.
(l12) (1958) 101 CLR 536.
(11~) Al/omey,Genemt (\'in); Ex reI Blm'k ~ 111e Co",,,w1I,,-euII1l (1981) 146 CLR 559_
190CLR I] OF AUSTRALIA 23
interests of social muer (114). Differences in history anu application He OF A
1996-1997
mean that United States cases about the constitutional guarantee of
freedom of religion In the First Amendment do not assist in construing KRL'GER
s 116. ,
THE
Cases to date have acccpteu that neither express provisions in the CO),J.'10,,-
Constitution (115), nor implied freedoms, guarantees or immunities WEALTH

give rise to personal fights of action sounding in damages or

otherwise (116). The same result follows in principle. While a finding
of constitutional invalidity might remove the lawful justification for
action taken unuer a valid law, it does not give a private right of
action (117). The High Court rejected the notion that the rule of law
required recognition of a special right of action for the unauthorised
acts of government In Northern TerriTory v Mengel (118). The
rejection of a private right of action sounding in damages for breach of
the Constitution is also consistent with the principle that a failure to
exercise a statutory power in accordance with the principles of
administrative law does nol give rise to an action in uamages (119). In
any event, the Commonwealth is ahsolutely immune from civil or
criminal liability save only to the extent to which Parliament makes
laws confl:rring rights to proceed against it under s 78 of the
Constitution. Scction 75(iii) does not subject thc Commonwealth to
substantive liahility (120). Further, s 64 of the Judiciary Act does not
confer a right <lgainst the Commonwealth; even if it did. il would not
in this case because it concerns a causc of action which is inc<lpable of
ansmg "'as in a suit hetwcen subject and subject". The foreign
authorities on which the plaintiffs rely are of little assistance, primarily
because they arc from jurisdictions with an express hill of nghts, many
of which contain express remedies clauses, hut also on other grounds.
Actions in the United States under the doctnnc estahlished in Bivens v

(114) /ldduide C" of Je!llJl'uh'y WimH.'n {nc " The COIIIIIIOlIWt'lilTh (1943) 67 CLR
116,
(It5) Jamp" '" The CommOfl\"l'li/I!I (1939) 62 CLR 339; Hiren!J(j Trlills{Jorl Ply Ud v
Vic/ori" (1937) 57 CLR 327; Blink '~fNSIV., The Cvmmo!J\l'calr/1 (I\.I4l\) 76 CLR
I; AIlIiIl Ranger & Co {'ry LTd \-' Co",,,,i,uioller for "'1m",- Tmllspo!"l (1955) '013
CLR l\J.
(tI6) C"nli/!e ,. The Commomwa!llT (1\.1<)4) 182 CLR 272 al 326-327: Theoplwf!ol/s,'
Hemld & Weekly Timp., Ud (1994) 182 CLR tlM at 168.
(] 17) }lJIliCS v The Commotl\,'pallh (1939) 62 CLR 339.
(118) (1995) 1l\5 CLR 307.
(119) Pork 011 Ho I' Milli.,ler FJI' ImmiXrmioJl alld t:rlmic i1!!i-lJr" (19R9) 167 CLR 637;
Clum v Milli.l'ler{(Jr ImmigrmiVII, Local Gm-ermnem and F:lh1lic Aflairs (19<)1) 31
FCR 29; DUliiop \ W{)lJllahm MIJ/llclj!ol Council [1<)82] AC 158,
(120) Warin " The C(II",,,,II)\<eollli (1938) .'i9 eLI{ 150: Magllire \' Simp.IOn (j 977) 139
CLI, 362; GeorgiaJi.< .- /lIISlrali<111 u"d O,,,rsem Teln:ommurliwtiom
Corf'ol'(1lion (19<)4) 17'1 CLR 297: Def'ur,' COlf[lIIlssiOlltr of Taxmion \' Richard
W'j/lt'r Ply LTd (199.'i) 183 CLR 168: .1sim;'" SIP"m 1'I,'uvigmiurl Co LTd,' The
ComJlW"",e(1!T11 (1<)56) 96 CLR 3'>7; The Common",,,,,lth \. Emns [)e,jki'l
{"d!l,mie" Ud (1986) 161 CLR 2'i4: Lf The Comm"fl ...."a/I!I " Nt", S"!lth \Vales
(1923) 32 CLR 200 at 216.
24 HIGH COURT [1996-1997
HeoF A Six Unknown Named Agents of the Federal Bureau of Narcotics (12])
1996-1997
cannot be brought against the Uniteu States or federal agencies hut
only against federal agents (122). Moreover, the qualified immunity
from suit enjoyed by federal agents in the Cnitcu Sta\i.:s (123) would
THE
O,M"O';. ensure that if an action such as this was brought there, it would fail on
WEALTH that ground. In Canada, it has been held that only rarely will an
mdividual remedy under the remedies provision of the Charfer of
Rights and Freedoms be permitled in conjunction with an action
seeking to have a statutory provision declared invalid (124).
Even jf the constitutional freedoms asserted by the plaintiffs eXIst,
and c:o:.istcd since Federation. it docs not follow that a law which
would infringe them now would have done so in the past. The
practical effect of both express (125) and implied (126) proVIsions of
the Constitution may change over time in the light of social and
political developments, The necessity of such an approach to imphed
constitutional rights or freedoms, because of the continuing evolution
of human rights (127). is compelling. The European Convention on
Human Rights must be interpreted in the light of "present-day
conditions" (12R). The same approach has been taken to bills of rights
in the United States (129) and Canada (130). Accordingly. the Court
must determine the applicablity of the constitutional rights asserted by
the plaintiffs to past events in the light of the standards and
perceptions at the time of the enactmenl or operation of the legislation
or of the relevant conduct. Further, none of the freedoms asserted can
be absolute; in dcteffilining the validity of the Ordinance to the extent
that it infringes any of those rights the Court must ascertain whether
its purpose serves an lOterest justifying derogation from the relevant
constitutional freedom and whether its proviSIOns arc reasonably
capable of being considered, or are. appropriate and adapted to the
achievement of that purpose. Those questions must be consideretl in
the light of standards and perceptions at the lime, The purpose of the

(121) (1971)403 L~ 388,

(122) Federal Deposit bl51ln:HI('e Co,-poralion \ Meyer (1994) 127 L~w EJ 2J 308
(123) Federal De!'o,,'tlll.lurtilice Corpowllon v ,"'lewr (199+) 127 LJW Ed 2d 308
(124) Schadan v CWI<lda (1992) 93 DLR (4th) 1
(125) Slre<'l \ QIJeell.<ia/ld Rar ,h,w"imlor! (1')8')) I(iR CLR 4lil. Allorl!cyGefieral
(Vlel), ICy rei Blm:k ,. The Commullwealth (In 1) 146 CLR 55'); R " Federa!
COllrl oIAustra!ill, F,x parle WA l'/atiurlal Fom/",11 League fire (lY79j 143 CLR
190; /.""-,,,11 \' Lansel/ (1'J64) t10 CLR 353: Chem!e \' T"e Q"ei'il (1993) 177
CLR 541. AllfJmey-Ce"eral (OIrJ. Lx l'eI McKi"I",'" The c,'III/II(lIIwwilli (1975)
135 CLR 1
(126) A"slndlllli C<lpiwl Te/nision Ply Lid" File n""mm,,,'e,,iI!t 1.1Y(2) 177 CLf{ 106:
Tlreol'/II.IIIO"S \' Herald & >\-'ed:l,. j'ime, Ltd (1 Y94) 182 Cl.R 10"
(t27) Theoph<irlOllS v Hemld & Weekly Time.\ Lid (19941 lR2 CLR 1(4
(128) 'l)WI' v L'lIJled KirlKd"'r! (1'178) 2 EHRR 1. MI!rck.\ \ lJeI/{iwn (1979) 2 EHRR
330
(129) Hdll'N I' lil'-xmia n"ard o{E/ecton (1966) 383 U~ 663,
(1 :,(J) And,,'w" \' L<ill SO('lNy ,,(B,-ilish CoIUlI/bla (19R9) 56 DLR (4Ih) I
190 CLR I) OF AUSTRALIA 25
Ordinance 1$ apparent on its face. The Court should not have regard on He OF A
19%-1997
the questions reserved to any of the historical materials put forward hy
the plaintiffs. In any event, the materials do not assist the plaintiffs. KRUGER
The Ordinance satisfies either test of validity put forward by the
THE
Commonwealth in relation to each of the constitutional righls or (:mIMnN_
freedoms asserted by the plaintiffs. WEALTH

5 J Cage/a. Section 64 of the Judiciary Ac/ subjecls the rights of

all parties to proceedings in which Ihe Commonwealth is a party to
any statute of limitation thai would he applicahle if all parties ""erc
natural persons (I 31). Scclion 79 of that ACI npplies to proceedings in
the High Court the statutes of the Statc or Territory in which thc Court
is actually sitting. Accordingly, the Northern Territory limitation law is
applicahle to the plaintiffs' common law claim in each action, in the
Kruger proceeding by virtue of s 5 of the Choice of Law (Umitation
Periods) Act 1993 (ViCl), or the equivalent law in the Stnte or
Territory in which the Court may he silting, hecause it is picked up
and applied hy s 79 of the Judiciary Act (132). The approach of
Windeyer ] in Sue/lie v The Commomvealth (133) should not be
followed in so far as it suggests there IS a special rule for actions
against the Commonwealth which is not applicahle to aelions against
private citizens. lGAUDROr-: 1. Given that the Commonwealth is the
defendant. why would not the law which governs the common law
claim hc the common law of Australia ralhcr than the law of the
Tcrritory'!1 Because of the majority decision in McKain j} R W /l-filler
& Co (SA) Pty Ltd (134) and thc clrcct of s 64 of the Judiciary Act.
Dle claim for damagcs for hreach of the Constitution must be subject
to a statutory limitation period appropriate to an analogous aClion In
turl as made applicable hy ss 64 and 79 of thc Judiciary Act (135)
(through powcr derived either from s 78 or s 51(.>:.xx1.\) of the
Constitution), in this case the limitation law or thc .Iunsdiction in
which the Court sits to hear thc matter. In the United States. BirellS
actlOns arc subjcct to limitation statutes, Alternatively, thc
constitutional claim is suhject to an implied constitutional requirement
that claims he instituted within a reasonable timc. The constitutional
nghts now asserted by Ihe plmntiffs were unknown during the
currcncy of the Ordinance and if the claims had heen hrought then, the
Commonwealth could havc had them struck out. It should not now be
exposed to liahility in respect of past acts going back to Fedcration
because the Court decides a new point of constitutional law. The
retrospective effect of a declaration of invalidilY could he mitigated

(1.1 I) Maguire \. Siml'.<,,11 (I (77) 139 CLR _,6~_

(132) Gardner.' Wal/N'e (1995) 1~4 CLR 95; Cohen.' C"hell (1'129) 42 CLR 91. foilll
Robel'/son & C" Ltd v FerX"'</J!1 Tmll.<jvl'IIl<'rs PlY Ltd (147-') 124 CLR 65
(lJ.1J (1967) 11(, Cl.R 353,
(134) (1'1'11) J74CLR I
(13'i) Camphell' Hmerhlll(1845) 155 L"S (,10
26 HIGH COURT [ 1996-1997

HCm/l through the technique of prospective overruling. Alternatively. a

1996-1997
defence of laches or other analogous equitable principles should
KR\CGER apply (136). There is precedent for the application of time limits to the
bringing of actions providcJ for under the Constitution, such as
T", applications for mandamus or prohibition under s 75(v). The difficulty
COM-'1{lN-

"'c.'LTH in determining and applying the stamhm.ls and perceptions prevailing

at the time of the making and operation of the Ordinance, which is
necessary for determining its validity, also supports the conclusion that
the plaintiffs' action cannot now be brought.
K Mawn QC, Solicitor-General for the StZlte of New South Wales,
(with him L S Katz SCi, for the Attorney-General for that State,
intervening in SUppOlt of the defendant. It is established that no
damages flow otherwise than in respect of a recognised wrong for
which an invalid law would provide no authority (137), The pnnClplcs
stated in Northern Terrirory v Mengel (13H) should apply where thc
official action is ultHI vires the Constitution; a fortiori in so far as the
legislation pursuant 10 which the assumed agents of the Common-
wealth acted in the past in good faith was only beyond powers
conferred hy the Constitution. Propcrly undcrstood, Bivens v Six
UnknO\vn Named Agents of the Federal Bureau of Narcotics (139)
undermines the plaintiffs' easc. A plaintiff in a Bivens claim may bc
mct by absolute and qualified immunities protecting public
officials (140). Thc Supreme Court has left open the question whether
the Bivens constitutional tort is constitutionally required or a product
of the common law (141); properly understood, it is thc laller. [He
rcl"erred 10 Federal Deposit Insurance Corporatioll v Meyer (142).]
Bivens imposed no liability on the federal government, but only on
individual federal olTil:ials (143). A plaintiff in a Bivens claim must
prove a breach of the Bill of Rights which may entail a level of

([36) Mdr'luis 0{ Cholmo"deley " Lurd Clinton (1820) 2 Jal: & W I [37 ER 'in]:
Monby IlJewicke (1857) 3 K & J 342 [69 ER 11401: Prete .. Al/omey-Geller<,1
(Vmario) (1993) 86 CCC (3d) 442,
(137) McClimock" The Cmlllf/olll1ealllr (1947) 75 CLR 1 at 19, 30: Au,~lralasia" Uniled
Sleam Na\'i~{/fioll Co Lid \. Shipping C01ilml BO{jrd (1945) 71 CLR sOg at 527:
Nelungaloo Ply LId I' The Commollweallh (1948) 75 CLR .495 at 505: Ne!ungal,,(!
Pry LId v The ComlilOtiwealih (19.'i2) 85 CLR 545 at 567s6g: Arthur Yale.< '" Co
Pry LId I' Vegela/>/e Seeds C(lmmitree (1945) 72 CLR 37 at 64
(138) (t995) 185 CLR 307,
(139) (1971) 403 US 388.
(140) Nixo" \. Fil~xerald (1982) 457 US 731, Chapell" IVaI/ace (198.1) 462 US 296:
Un/led Sillies \' Sla"ley (1987\ 483 US 669.
(141) BU,\'h \. Luea,' (1983) 462 US 367,
(t42) (t994) t 27 Law Ed 2d 308.
(143) Biven> v Six U"klll'''''' Named A~ellls (!t'the Federal Bureau of Narcotics (t 97tl
403 US 388: BI,sh" l.uca" (ln3) 462 US 367: Schweiker \' Chilicky (1988) 487
US 412.
190CLR I] OF AUSTRALIA 27

fault (144). A Bivens-type action is regarded as a tort claim (145) and H Co, A
1996-19')7
will allract the appropriate limitation period (146). Section 79 of the
Judiciary Act fills a void by picking up State law and treating it as KRUGE~
federal law. Even if it did not exist the same result woulrJ follow by
THE
virtue of s 108 of the Constitutioo. COMMON-
V.'EAlTH
R J Meadows QC, Solicitor-General for the State of Western
Australia, (with him R M Mitchell), for the Attorney-General for that
State, intervenmg in supp011 of the defendant. The legislative history
of the Aboriginals Ordinance demonstrates that its scope and purpose
were to provide for the welfare and protection of Ahoriginal people.
So much is apparent from the Aborigines Act 1905 (WA), and its 1897
predecessor, as well as the Ahoriginals Proteclion and the R!'srricrion
of Safe of Opium Act 1897 (Q) and the Northern Territory Aboriginafs
Act 1910 (SA) from whieh the relevant provisions of the Aborif:illals
Ordinance were derived. The provisions of the Ordinance which might
be said to authorise detention are not punitive and hence do not
amount to or authorise an exercise of judicial power (47). None of
the impugned proVIsions operates by reference to the past conduct of
the per;;on who may be detained, nor docs the Ordinance judge the
guilt of any person of a crime, or authorise the executive to do so as a
(.;ondition to the exercise of statutory powers; a central characteristic of
judicial power is therefore ahsent (148). Section 7 of the Ordinance
was not a Jaw provirJing for the detention of any adult citi/.en: hut for
the custody and guardianship of children in a manner similar to s 63F
of the Family I,aw Act 1975 (Oh) and s 35 of the Family ww Act
1975 (WA). Section 16 did not authorise the arhitrary removal of
Ahoriginal people to resen:es or the exercise of the power for punitive
purposes. It only authorised the exercise of the power for purposes
concerned with the welfarc of the Aboriginal person concerned. In any
event, the doctrine of the separation of powers docs not extend to the
Territories: III this respect, the position of people in the Territories is
essentially equivalent to that of people III the States (149).
There is no general requirement in the Constitution that Common-

(144) F"rm~r v f/relllUiri (1994) 12g law Ed 2(1 81 I

(145) Fedeml Deposir III.>Ilr(Jllcc CurpUratiOIi r Meyer (1994) t27 law Ed 2d 30g.
(146) O"'~n.< '" Okure O':)g9) 481\ US 235: HaJ'di'l v Slr<illb (1':)g9) 490 US 566;
Cwnpbetl r H(Jverhill (ll\'!4) 155 US 610: Mo'.'leco!or Ltd V Ea,llmwl K",l"k CII
(1961) 288 F 2d IW, een denied 368 US 821, McSurle)' \' IIl1hlllll.wn (191\9) 823
F 2d 10m, e~11 d~nied 485 US 9.'\4: S~ber v UI/tie/' (l9'!5) l\l\1 FS 323: Leunhard
v United Swte,1 (I '!80) 63J F 2<1 599.
(t47) Chu Klleng Lilli v Mini.llerjiJr Immigrarillll (19'12) 176 ClR 1
(148) Karial'per '" W!je"nhl/ [1')6l\] AC 717: R v Whit": f.) parte Bwnes (1963) 109
Clk 665,
(149) Kor,li" I' Klmi" (1970) 122 ClR 69; R, r.ydon, Er porle Ce,f.\fluck Collieries Ltd
(19601 t03 CLR 15: h:ve ,. Attorney-General (NS\\/) (1990) IG'J CLR 307:
Gilher/son v SOIuh AII.>Imlla [1978] AC 772: Po!wkhovich ,. Th~ C"mmol/wealth
(l9'!)) 172 elk 501
28 HIGH COURT [ 1996-191.)7

He"F A .....ealth laws operate uniformly throughout the Commonwealth (150).

1996-1997
Section 51(xxvi) authorises Parliament to make laws thscriminating
auyersely as well as positively in respect of the people of a particular
race. Further, the principle postulated by Deane and Toohey JJ In
rHo Ll:efh allows for discriminatory laws which arc n::asonably capable of
COM''')~
wL\LTIl hemg seen as providing a rational and relevant hasls for discriminatory
treatment (151). Gaudron ] saw impermissible discrimination as the
different treatment of persons or things not relevantly different or nol
reasonably capable of being seen to he appropnatc and adapted to that
difference (152). The decision as to whut differences un: relevant and
the extent and type of dillen:nee of treatment which is appropriate
must be left to Parliament. To the cxtent that the Constitution prohibits
discrimination generally, the prohibition extends only to laws
discriminating hctween citizcns of different States and to Common-
wealth laws discriminating on the basis of locality in a manner not
authorised by the relevant head of power. The reasoning in the United
States and CanadIan decisions relied on by the plaintiJls is not
applicahle because they depend on the interprctation of bills of rights.
Any constitutional lin plication of freedom of association must be
limited to freedom to associate for political purposes or for the purpose
of discussing political or government matters (153). While political
rights implied in the Constitution may not be confined to voters, it is
relevant that the plaintiffs wcre not of voting age at the time they were
allegedly detained. At least to the extent that s 16 authorised minors
under guardianship tll hc removed to and kept within a rcserve or
institution, it was not inconsistent ""ith any freedom of movement as
might he necessary to preserve the Constitution's prOVIsion for
rerresentative government. Genocide is predicated upon an Intention
to destroy, in whole or in pan, a relevant group. The terms of the
On..linancc arc Inconsistent with that intent. Further, the crime of
genocide did not acquire its status as part of customary internation.al
law until aftcr World War II; it was nol so recogniscd until the time of,
or possihly just herore, the adoption of the Genocidc Convention E)48.
While the invalidity of legislation which infringes onc of thc unplied
L:Onstitutional limitations asserted hy the plaintiffs would possibly
remove a justification for otherwise tonious acts or omissions, no
private right of action arises from thc Constitution itself (154).
Ilnplications uf freedoms as to movement and communication havc
been identified as limitations on power, not as rrolccting individual

(150) I.celh l' The C"mmOlmealTh (1(92) 174 CLI{ 4.'iS.

(I S 11 Leelh .' Tilt C"lIImoml't"lIh (199:0) 174 CLR 455 Jl ,,~~,
(152) '.etlh l' Til" C"mmo"",,,,,!fh (1992) 174 CUt cl5"; al49S
(153) TI1,o!'I"",,,,,.1 .' Herald & Weekly Time.l Lid (19941 IB2 CLl{ 10"
(1541 }ol/les l' The C"mmmnl'""lth It939) 62 CLf{ 3.19, McClillloci< \' (he
Commol/wealTh (1(47) 75 CLI, I, Cunliffe )' The ("01111110/1" ("llh 1.1994) I g2 CLR
272,
190 CLR I] OF AUSTRALIA 2"
rights of citizens (155). Decisions from other countries cannot he HCflFA
1~%-j997
applied to the diffcn.:nt language anu context of the Constitution.
Section 79 of the Judiciary Act 1903, read wilh s 80, provides for the Ii:RL'GER
application by the High Court of the laws of the State or Territory in ,
THE
which the Court sits to hear the suhstantive case or trial. Further, a CO"."ON-
cause of action based on a constitutional right of action would have to WEALTH

be brought within a reasonable time, whether that time is identified hy

reference to limitation legislation or equitable principles such as
laches.
B M Sehvay QC. Solicitor-General for the State of South Australia,
(with him N A Manetta), for the Attorney-General for Ihat Slate.
intervening in support of the defendant. Any implication to be mudc in
the Constitution must be textual or derive hy logic or necessity from
the structure of the Constitution (156). An implication cannot be made
if it would be inconSIstent with the constitutional text or the historical
purposes and objects of those present at the Convention Debates or if
it has not been consistently applicable (cg, implications allegedly
resulting from some change in society or community expectations). To
allow the derivation of implications from the nature of Australian
society or the sovereignty of the Australian people would require the
reconsideration of settled principles and could revive the reserved
powers and implied immunities doctrines discarded by the Engineers'
Cuse (157). The principle of parliamentary supremacy is so fundamen-
tal and csscntial that it should not be overturned. Moreover. the
proposition that legislative power in Australia is subject to fundamen-
tal common law principles was laid to rest by the Colonial Laws
Validity Act 1865 (Imp). The separation of powers does not apply to
s 122. It applies only to courts established under eh III when
exercising jurisdiction derived from eh 111; it does not apply to courts
established otherwise than under ell III (such as courts estahlished
undcr the territories or the defence power). Even so only detention
pursuant to a finding of guilt necessarily involves an exercise of
judicial power. The Ordinance did not authorise detention as
punishment. The power to take custody and control of Ahoriginal
children as a statutory power is an incident of guardianship which the
Ah()riginal~' Ordinance estahlishes (158). The excrcise of the power
would be controlled by a requirement that it must be exercised for

(1 ~.'i) Thell[Jhanllus " Herold & Wed-Iv Times Uri (1994) 18~ CLR 104,
(15(,) AIISlr</li<l'1 Ci!>ilal Ielc<'isiol! f'ry L((I v lhe Cl!mr>l"m,'c~llh (I':N2) 177 CLK 106:
ThcophwWllS r Herold &: Weeklv TilliE,' Lid (1994) 182 CLK 104: ,ViIIilJllwide
,'...."',.,\. Ply Lui,' Will., (1992) 177 CLR 1 Stepheni' ,. \-reM Auslrolian Ne"".'!Hi[J''I'.'
Uri 11(92) 182 ell'. 21 1
(157) Anwlgamaurf SOc;'."I.\' or Fngilleers . Atlelaidp Steamship Co Ud (1920l 28 CLR
129.
(158) Hewn v Hnalll 119701 1 QI:l 357; rOlf/lIW" \' Ah'x</lu!cr (I n2) 150 eLI'. 615
Gillid v IVe.\"I ,."'{}Iff,lk and Wi,weI'h Area Hnillh AlIl"o!'ir;' 119861 AC I 12
30 HIGH COURT [1 \J96-1997

He OF A proper purposes and for the bona fide advancement of the chil
1996-1997
dreo (159). An abusive exercise of the power could be remedied hy
means of prerogative writs or the parens patriae Jurisdiction (160). The
doctrine of legal equality asserted by the plaintiffs would be
THo
Cm,,,()~
inconsistent with the doctrine of parliamentary supremacy anu would
\VEAITli require the courts to decide whether the discriminatory trcalment is fair
and adapted to its end. That has never been the province of the courts.
Moreover, nothing in the text of the Constitution requires the
principle (161).
The correct question IS whether the Ordinance operates to dimmish
representative government in the Commonwealth, not whether it
impinges on freedom of political communication. A general law such
as the Ordinance which authorises guanhanship of those in need of
protection does not have an ohvious aim of the prevention or
suppression of participation in political life, Nor is it ohvious that it
would have that effect, except as it may be reasonably necessary to
achieve that object of guardianship. Accordingly. it does not offend the
limitation. The reasoning which led to the identification of the freedom
of communication with respcct to puhlic affairs and political matters
must give rise to a freedom 10 approach a federal memher and the
Commonwealth Parliament (162) and a freedom to associate for
relevant purposes. In each case, the freedom is from legislative
interfcrcnce with the nghl. While the freedoms would extend to people
in the Territories, is no allegation establishes interference with them.
There are no common law freedoms so fundamental that laws madc by
the Parliamcnt cannot touch them (63). A common assumption or
how legislative power will be cxerciscd in a democracy cannot
properly form the hasis of a legal limitation upon power. Further, hoth
the race power (s 51 (xxvi)} and the aliens power (s 51 (xix}) were
included to permit the Commonwealth to legislate 10 discriminate
against as well as in favour of people of particular races and
backgrounds. The framers of the Constitution and most of the voters
who voted for its adoption must have mtended that Ihose powers could
so be exercised. No relcvant Implication preventing the enaetment of
discriminatory legislation can he drawn against this hackground. In
any event, the Ordinance established a protective regime and did not

(J59) R v GVIII<"U [1893]2 QB 2.12: Thomm.leI \' Th"ma,l:;el [18941 P 195; J v C [1970]
AC 668; Gillick v West ;V"r/i,/k wrJ lVi,,!;e,h Are" !leliith AI,lnIH'inlln61 AC
Itl: Secrelo".. Del'"nmenr 0( HealIh lmd Community Senil'e.< ,. l11'B and 5MB
(19921175 eLI< 118.
(160) Curse/din" ,'Director o11ht IJepllrtllltm o{Children's Sen-icn (1974) 133 CLf{
345: Fmmrai" v Ale.nll/ria (1982) 150 eLf.: 615; Secrewry, DeparTment o{ Ilealth
alld Community Sen'i,.", \' jlVB "ntf 5MB (t992) 175 eLI{ 218.
(l6t) Leelll rThe COllllllOtlWeolrli (1992) 174 eLf{ 45'i.
(162) R '" Smither,,; Ex pa/Te Benw" (1912) 16 eLR 99: L,IIII,flied" Lake (1')5~) <)')
CLR 132: P'mlen Lxpren I'ry Lid r HOlchkiss (l958) 10\ CLR 530,
(163) British Railways /Joardv l'idiIlI1974] AC 7fS
190CLR 1] OF AUSTRALIA 31

impose or authorise arbitrary punishment. A law having an object HC"FA

1996-1997
otber than an interference with freedom of religion is not invalid for ~

breach of s 116 of the Constitution merely because it has the incidental

ellen of making it more difficult for a person to practise religious ,
KRL'liER

THE
beliefs. Further, given the limited effect and application of s 116, there CO."."ON-
is no need to imply a right to freedom of association for religious 'WBLTT-f

purposes. [He referred to Kiorgaard v Kiorgaard and Lang (164) and

In the Marriage (~f Firth (165).]
An invalid law may be ignored. This provides the basis fOT the
vindication of unlawful executive action. Most "rights" conferred by
the Constitution are only limitations on legislative power. Express
constitutional rights, such as s 92, have been held not to give rise to a
cause of action (166). Section 117 is another example (167). Implied
rights cannot be treated more highly than an express constitutional
nght. To the extent that Ashby v White (168) can be taken to suggest
that there IS a general right of action for an ultra vires act, it is not
good law in Australia. It relates to misfeasance in public office (169).
The foreign cases fall into two categories: those from jurisdictions
where there is an express statutory power to mak.e redress and those
where the relevant rights are such that if the only power is to declare
invalidity, the rights cannot be enforced. They do not apply to our
Constitution. Where a Parliament lacks power to pass legislation, it
also lacks power to legislate wholly to extingUIsh common law
remedies that might be applicable in respect of anions performed in
reliance on the invalid statute (170). To the extent tIm! a limitation
peTiou IS applicable it does not have the effect of extingUIshing any
otherwise available remedy. As these proceedings have been mstitutcd
in the Victorian Registry, the law to be applied pursuant to s 79 of the
Judician Act is (assuming the case is ultimately heard in Victoria) the

(1M) [19fi71QdR 162,

(165) (1988) J2 F~1ll LI{ 547: IISlSSJ FLC nOIR.
(166) eg, James ,. Sour!> Allslrah'l IISl27) 40 CLR I. Ri"ni"a Tm"Sl'orl 1'1)' Ltd v
lIiewria (1937) 57 CLI{ 327: James \' The Common,wallh (1939) 62 CLR 339;
I1mlrnt'5 ,. HOI,ell (1'141) 65 CLR 25.'i: MeClimod " The CommoJlweallh (1947)
75 CLR I: Bank o( NSW .. The Comm,mwe(lilh (1948) 76 ClR 1, Tire
C"mmomveallh l' Hank o/NSW (1'149) 79 CLR 497: Williams v Metropolitan &
Export Abul/oir.. Hoard (I Sl53) 89 CLR 66; H"Khe,< & Vales Pry Lid v New S,,"'iI
Wales {ill" IJ (1954) Sl3 CLR L /1mill RanXi'r,~ Co Ply f.ld" Comminimwrj;lr
MIlI01' Tram!,,,rl (lSl55) 93 CLR 83; Rarton v Comminio/ler.!i" Umo1' Transpo1'!
(1957) 97 CLR fiJ3: M(I.HI"" Nnl South Wales (1959) 102 CLR IDS; NatimmiJe
I',/e\;,s Ply 1.ld \' W!lls (1992) 177 CLI{ I. "Ilu"l'lrwwas I' Herold & Weekly Times
Ltd (1994) 18'2CLR 104,
(167) Sired v Queenslaml Bar Auot."i,ui"n (I')X')) 168 CU< 461
11(8) (l703) 2 Lei R,-,ym 938 ['12 ER 126J.
(\69) Norlh"'I! Terrilory " Ah"l(e1 (!995) 185 eLR 307,
(170) Alii/II 1I""IiN & Co Ud, C""'minioJler j;" M%r Tram!'or/ (1955) 93 CLR RJ;
Ru1'!o" v COII/missimur.!;)r Molor Tmmpllrl (1955) 97 CLR 633: Commissio/ler
!;Ir Molor Trall.<{'or/ \. Amil! Ra!lger & Co Ltd (1956) 94 CLR 177, Mumal PliO!.\,
& .'11<,11'l'ry LTd., Tile Cmnmmmpa!lh (1994) 17') eLR 155,
32 HIGH COURT 11')96-1997

HCOfA law of Victoria, including its choice of law rules, in particular the
19961997
Choice o(Lmr (Limitation Periods) ACT 1993. The effect of that Act is
that an action in tort is not maintainahle if it would have been statute
barred in accordance with the lex loci. If that Act is nut applicable
Til" hecause of its rcfcn::ncc 10 "a Court of this State", the relevant
CO"fMO~
WE.,UII limitation perioJ to he applied hy virtue of s 79 of the judiciw)' Act is
found in the Limitation ofActions Act 1958 (Viet),
N H M Forsyth QC, in reply. Section 13( I) of the Administration
Act, which cmpowcn::u the Governor-General to make the Aboriginals
Ordinance, was in broad terms. To the extent that it authorised the
making uf the OnJinancc In tcnns heyond s 122, it is invalid, The
deeision in Lim (171) is an exception to the doctrine that the powcr or
detention is part or the judicial powcr, hut is shows that detention by
the executive is limited to compelling necessity, The legislature
cannot, by taking a prejudice against a group confer on itself the right
to depart from the long-estahlished principles mentioned in Lim, The
history of the Ordinance indicates that welfare and protection were
only pan of its purpose; the other part was control of Aboriginal
people, ami s 16 is directed to the latter purpose, Unlike the State
Children Act 1R95 (SA), which reqUIred the identification of particular
circumstances of need and the authorisation of a justice as a
precondition to the detention of a non-Aboriginal chihL the powers
under the Onlinancc applied to all Aboriginals and half-castes
irrespective of circumstances or or particular need for protection or
welfare,
R A Finkelstein Qc' following, Any limitation on or rcstnction the
entitlement of a person to bring an action or to ohtain relief m n.:spect
of a hreach of the Constitution must be derived from the Constitution,
In thc ahsence of an unambiguous provision to that effect. such a
limitation or restriction does not exist. The inapplicahility of statutory
time limitations to constitutional fights was recognised in relation to
the Canadian Charter of Righrs and Freedoms in Prete v Attorney-
General (Ollwrin) (172), Under Australian law, laches is a defence
only to equitable claims (173), The plaintiffs' elaims are constitutional.
In any event, where specific performance 01' an injunction IS refused
because of laches, equitahle damagcs may be awarded (174). If there is
an Implied eonstitutional limit requiring chums to he brought within a
reasonahle time, or somc other basis in equity for the Court to exercise
its discretion to refuse the remedies sought the phuntiffs have not
delayed unreasonably.

(171) Chu Kilelll' Lim r Mi'll.'/er FJr t"mlli;!"fiOJl (1992) 176 CLR 1
on) 0')\)3) 8(, CCC nJ) 442 al449
(173) Orr ,- Ford (1989) 167 CLR 3t (,
(17-'1-) St'Il/"r c- /"1""''''1 (I i\(,(,) LR 3 E'J 330, Brac,"",,11 A/,ple!>'- II 'J751 Ch elOiL
190 CLR 1] OF AUSTRALIA 33

Cur ad)) vult He OJ'''\

1996-1997

KRl;OFR
31 July 1997
THE
C()M~J(}N

The following written judgments were dcliven::d: WMLTlI

BRENNA:--i CJ. The plaintiffs are Aborigin<ll Australians. All but one
BTcnnan (J
of them were children of tender years living in the Northern Territory
when they were allegedly" "removed into <lnd detained and kept in the
care, custody and/or control" of the Chief Protector of Aborigines (or
of his successor in function, the Director of Native Affairs) "and
thereafter detained and kept away from his [or her] mother and family
in Aboriginal institutions <lnd/or reserves". The other plaintiff, Rosie
Napangardi McClary, is the mother of a child who, without the
mother's conscnt, allegedly suffered the samc fate as the other
plaintiffs. The plaintiffs seek, inter alia, a declaration that the
provisions of the Ordinances of the Northern Territory under which
these <ll1eged actions were taken were invalid and that the Acts of the
Commonwealth under which those provisions were enacted were
invalid in so far as thcy might be found to have authorised the
impugned provisions of the Ordinances.
The relevant provisions (175) arc to be found in ss 6, 7, 16 and 67
of the AhoriRinals Ordinance (the Ordinance) which commenced
operation on 13 June 1918. That Ordinance was made by the
Governor-General pursuant to powers conferred by s 7(3) of the
Northern Territory Acceptance Act 1910 (Cth) (the Acceptance Act)
and by s 13 of the Nm1hem Territory (Administration) Act 1910 (Oh)
(the AdministraTion Act). The Onlin;mee was "mended from time to
time by the Governor-General pursuant to the same statutory powers
or, in one instance, pursuant to powers conferred hy the NOrThern
Australia Act 1926 (Cth). In 1953. a further amendment was made to
the Ordinance by the Legislative Council of the Northern Territory
which had acquired the requisite powers under the Admmistration Act.
Nothing turns on the terms of the amendments made and it is
sufficient to set out the terms of the impugned provisions of the
Ordinance as they stood in 1918.
The Ordinance providcd:
"'6. (I) The Chief Protector shall be entitled at any time to
undertake thc carc, custody, or control of any Aboriginal or half"
caste, if, in his opinion it is necessary or desirahle in the interests of
Ihe Abof1gmal or halfcaste for him to do so, and for that purpose

(175) The litles of the OrdiniUlcc am] !h~ amending Onlin~n~e, ~nd of Ihe A~ts under
which they were purportedly made are sd nul in pillS 7-1~ of the ~mend"d
stalcment "r daim in Ihe fir,! adion and in pars 4') of Ihe amcnded -,Ialcmenl of
claim in (he second action.
34 HIGH COURT [1996-1997

HenF A may enter any premises where the Aboriginal or half-caste is or is

j 996-1997
supposed to he. and may lah: him inlo his custouy.
KRlJGER (2) Any person on \vhosc premises any Aboriginal or half-caste
is. shall, on demand by the Chief Protector, Of by anyone acting on
THF
Co",,,,,, behalf of the Chief Protector on production of his authority,
WEAl.TlJ [w.:ilitatc by all reasonable means in his power the taking into
custody of the Aboriginal or half-caste.
Hrc'"",,,'C! (3) The [JOwers or the Chief Prutcclor under this section may be
exercised whether the Aboriginal or half-caste is under a contract of
employment or noL
7. (1) The Chief Protector shall be the legal guardian of every
Aboriginal and of every half-caslL: chilu, notwithstanding that the
child has a parent or other rdative living, until the child attains the
age of eighteen years, except while the ehilu IS a State child within
the meaning of the Act of the State of South Australia 10 forcc in
the Northern Territory entitleu The Srate Children Act 1895, or any
Act of that Stale or Oruinance amending or suhstituted for that Act.
(2) Every Protector shall, within his dlstnct, be the local guardian
of every such chilu within his uistrict, and as such shall have and
may exercise such powers and duties as are prcscribeu,"
The Chief Protector anu Protectors of Aboriginals were appointed
under the Ordinance. After an amendrnent of the Ordinance (176) in
1939, the Director of Native Affairs became the successor in function
to the Chief Protector. In 1953 (177), s 7 was amended 10 read:
"'The Director is the legal guaruian of all Ahoriginals."
Each of the plaintiffs is an "'Aboriginal"' as defined in s 3 of the
Oruinance, Sections 16 and 67 reads:
"'16. (J) The Chief Protector may cause any Aboriginal or half-
caste to be kept within the boundaries of any reserve or Aboriginal
rnstitution or to be removed to and kept within the boundaries of
any reserve or Ahorlginal Instilution, or to he removed from one
reserve or Aboriginal institution to another reserve or Aboriginal
institution, and to be kept therein.
(2) Any Aboriginal or half-caste \.vllo refuses to be removed or
kept within the hounuunes of any reserve or Aboriginal institution
when ordered by the Chief Protector. or resists removal, or who
refuses to remain v,'ithin or attempts to depart from any reserve or
Ahongmal mstitution to which Ill,; has been so removed, or within
which he is being kept, shall be guilty of an offence against this
Ordinance.
(3) Suh-section (I) of this section shall not apply to any
Ahoriginal or half-caste -

(176) Aho,-;gi,w!.,' O,-Ji""",,., I 'lJ'l (NT)

(177) ,1/mri;;('IO!.S OrdinaliCE (iV" 111'.153 (:\TI,
190 CLR 1] OF AUSTRALIA 35

(a) who is lawfully employed by any person; or fI Co,A

(b) who is the holder of a permitlo be absent from the reserve
or Aboriginal institution in question: or
(c) who is a female lawfully married to and residing with a
-,
1996-1997

KR\.'C,ER

[HE
husband who IS substantially of European origin or descent; or COMMON-
(d) for whom. in the opmion of the Chief Protector. WEALTH

satisfactory provision is otherwise madc.

Brenn'" CJ

67. (I) The Administrator may make regulations, not inconsistent

with this Ordinance. prescribing all matters and things which by this
Ordinance arc n:quin:d or permitted to be presenbed. or whieh may
be necessary or convement to be prescribed for the effectual
carrying out of this Ordinance, and in particular-
(a)
(b) providing for the care, custody and education of the
children of Aboriginals and half-castes;
(c) enabling any Aboriginal or half-caste child to be sent to
and detained in an Aboriginal Institution or Industrial School;
(d) providmg for the control, care and education of Aborigi-
nals or half-castes in Aboriginal institutiuns and fur the
supervision of such institutions:
(c) providing for the control and prevention of communicable
diseases amongst Aboriginals or half-castes;
({") pn::scrihing the conditions on which Aboriginal and half-
caste children may be apprenticed to or placed in the
service of suitable people:

Regulations (described in the amended statements of claim as the

"remuval regulations'") made in purported pursuance of s 67
conferred on Protectors "at their discretion" the power to "forward
any Aboriginal or half-caste children to the nearest Ahongmal
institution or school, reporting the reason for such action to the Chief
Protector" (178) or, from 17 October 1940, to the Director (179).
Sections 6 and 16 are the principal proVIsions of the Ordinance
which <:Ire material to the alleged removal and detention of the
Aboriginal children referred to in the amended statements of claim.
Those children, including the child of the plaintiff Rosie Napangardi
McClary. arc hereafter referred to collectively as "the plaintiff
children"'. Section 6 conferred on the Chief Protector a power "to
undertake the care, custody, or conlrol" of the plaintiff children but
that power was conditioned upon the Protector's opinion that "it [was]
necessary or desirable in the interests of the Aboriginal or hall-caste
for him to do so"'. This is it power which in terms is conferred to serve

(In) Regulations (Gener~1) lllldel' (he Abo,-igi,wl" O,-din",,,.-e 191R. S .'1 and Ihe
Aboriginal Regulations 19.n. S (,.
(179) S~heJule (0 Amending R"gulJt;ons of J OClQbcr t940.
36 HIGH COURT [ 1996-1997

HCfll'A the interests of those whose care, custody or control might be

-,
1'1%1997

KRl'GFR
undertaken. It is not a power to he exercised adversely 10 those
individual interests. And, as s 67 rCLjuircd the regulations made
thereunder to be "for the effectual cafl),jng out" of the Ordinance, a
THE
valid exercise of the powers conferred by the removal regulations
CO"""". would have to he intended to serve the mterests of the "Ahoriginals
wMLfll
and half-castes" to whom those regulations applied in any case in
Bronn"n CJ
which the power was helng c:u.Tciscd In pcrfonnancc of the function
of care, custody ur cuntroL The several paragraphs of s 67 indicate that
the regulations are to t:1cilitate the serving of the interests of the
""Aboriginals and half-castes" to whom the regulations might be
applied, The requirement prescribed by the removal regul<ltions that a
Protector report to the Chief Protector or Director thc reasons for
forwardmg Aboriginal or half-caste children to an Aboriginal
institution or school also suggests that the Chief Protector or DirectOl"
should supervise the Protectors' exercise of authority to ensure that the
duties of guardianship are properly discharged.
Of course. a power which is to be exercised in the interests of
another may be misused. Revelation of the ways in which the powers
conferred by the Ordinance were excrcised in many cases has
profoundly distressed the nation, but the susceptibility of a power to its
misuse IS not an indicium of its invalidity (80). It may be that in the
cases of the plaintiff children, the Chief Protector or the Director
formed an opinion about their interests which would not be acu::ptcd
today as a reasonable opinion having regard to contemponuy
community standards and the interests of those childrcn m being kept
together with their families. The practice of enforced separations IS
now seen to be unacceptable as a general policy. However, the
erroneous fom1ation of an opinion by the Chief Protector which
purported to enliven the exercise of the power conferred by s 6 or by
the removal regulations does not deny the validity of s 6 or of those
regulations, though it may deny the validity of the exercise of the
power (181).
Moreover, when a discretionary power is statutorily conferred on <l
reposItory. the power must be exercised reasonably, for the legislature
IS taken to mtend that the discretion be so exercised (182).
Reasonableness can be determined only by reference to the community
standards at the time of the exercise of the discrction and that must be
taken to he the legislative intention. Therefore, it would be erroneous
in point of law to hold that a step taken in purported exercise of a

(I W) Ama11i,mwlcd Sw'lery ot D1liJ"eers I' Adelaide SleIlIlilhip Co Lid (I nO) 28 CLR

1~9 at IS 1-I'i2.
(181) i\,rlinn IIi ,'.lSi'll Fry Lid I' ."ie\!' SlIurh Wales [,'iii 2/ (I%'i) 113 eLI' 54 at It2,
(182)A.lwci<ilcd I'rori",:,,,1 !',,'wre HO/lyes Lid.' Wedllcst>"n C()JpormJ,m 11948J
I KB 223 <il 234; Il'mer C"lIsen'IUI"'1 olld !r'rJ;;iUloJi Commi"",ion (NSW) I'

Br"'nJi"ji (1947) 74 CLR 4'12 at 'iUS,

190 CLR II Of AUSTRAl,TA 37

discretionary power was taken unre<lsonably and therefore without HCnF A

1'196-1997
authority if the unreasonableness appears only from a change in
community standards that has occurrcu since the step was taken. KRUGER
However that may be, even if the powers conferred hy s 6 of the
THE
Ordinance and by the removal regulations were misused in the cases of COI-!>'lO"-
the plaintiff children, the fael of misuse would not affect the validity WEALTH

of those pro visions.

Sections 6 and 7 of lhL: Ordinance nnd the removal regulations, so
far as those regulations effectually carry out 55 6 and 7, were laws
which were calculated to advance the interests of the "Aboriginals and
hnlf-castes" of the Northern Territory. They afC clearly supportable as
laws malic for the government of the Northern Territory, finding their
constitutional authority in s 122 of the Constitution.
Section 16 IS a provision of a different kind. On its face, it IS not
simply intended to serve the mterests of the persons over whom the
power might be exercised. In Waters v The Commol/wealth (183)
Fullagar J considered whether there had been an abuse of power or an
absence of bona fides in the exercise of power hy the Director who in
effect had authoflsed the taking mto custody at Darwin of the plaintiff
and hIS removal to and detention in the Haast Bluff Aboriginal
Reserve. Fullagar J, who was of the opinion that the Director was
empowered hy s 1610 authorise these steps to be taken. said (184):
"The powers which the Director wields are vast, and those over
whom he wields them arc likely often to be weak and helpless. His
responsibility is heavy. When he acts, every presumption has to be
made in his favour. He must often act on his own opinion in
circumstances of difficulty, and no court can substitute its opinion
for his. But, on the other hand, the courts must be alert to sec thaI. jf
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. The material before me in this case, however, fails
completely, m my opinion, to make even a prima facie case of abuse
of power.
It was argued that, both under s 6 and under s 16, the only
consideration which should affect the discretion of the Director was
the welfare of the particular Aboriginal concerned. This may be so
under s 6, but, so far as s 16 is concerned, it is, in my opinion, hy no
means the only legitimate consideration. Unlike s 6, s 16 contains
no reference to the fonnation of any particular opinion on the part of
the Director. The discretion given is in terms absolute. I have no
intcntion, on such an appliclltion as this, of laying down any rules
for the guidance of the Director. But I think I should say that, in my
opinion, he may legitimately take into considcration a number 01

(t:53) (195tJ 82 CLR 188.

(tM) Wwer1<J5t)82CLR 188all<J4-195
 HIGH COL:RT [ 1996-1997
II C OF A other factors in addition to the welfare or the particular Aboriginal
19%-1997
conccrnl:d, and that these include Ihe wclfare of othcr Ahonginals
and the general interests of the community in which the particulZlr
Aboriginal dwells."
THO.
COMMON- The conferring of a power which was capahIe of use so as to compel
WEALTH
the n:moval of a person from one place to another and to confine that
person in the other place must find clear support in thl: legislative
power rc1il:d upon to support the provisions which confer the power.
In thc present case, the legislative power relied on to support the
Ordinance and the removal regulations is s 122 of the Constitution.
Although the impugned provisions of the Ordinance and of the
remov(l] regulations were made in purported pursuance of the
Acceptance Act the Administration Act and the Northern Australia
Act, the plaintiffs contended that s 122 of the Constitution was
incapable of authorising the conferral of po\.\'er on the GovernOl"-
General or on the Legislative Council to make those provisions. The
amended statements of claim advanced re(lsons for alleging the
invalidity of the Ordinance and 111 particular ss 6, 7 and 16 and, in so
far as it purported to confer pown to male or amend the removal
regulations, s 07. The reasons were stated in six sub-paragraphs of a
paragraph drawn in identical terms in the amended statements of cl(lim
in e(lch of the t\.\'o actions (185):
""(i) A. it was contr(lry to an implied constitutional right to freedom
from und/or immunity from removal and subsequent detention
without due process of law in the exercise of the judicial
power of the Commonwealth confcrret.l in accordance wllh
Ch III of the Constitution or of judicial power under laws of
the Commonwealth:
B. it purported to confer judicial power of the Common-
wealth -
(l) on persons who were not appointcd under or ohliged
or entitled to exercise the judicial power of the
Commonwealth m accordance with Ch III of the
Constitution or Judicial power under laws of the
Commonwealth;
(2) other than on Courts establislled under or 1I1
accordance \vith Ch HI of the Constitution or under lav.'s
(,f the Commonwealth;
(ii) it was contrary to an implied constitutional right to and/or
guarantce of legal equality including equality before and
undcr, and cqual protection of, the law, and in particular, l(l,vs
of the Commonwealth and laws made pursuant to or under the
authority of laws of the Commonwealth:

11K.') Paragraph 2'1 of the amended stalement of cbim in th~ ftrst ;Jetio" and paragraph
21; "f Ih~ amended 'talcmcnt or dail1l in th~ '~c'(md aelio".
190 CLR 1] OF AUSTRALIA 39
(iii) it was contrary 10 an nnplicd constitutional right to and/or II Co.. A
1996-1997
guarantee of freedom of movement and association:
(iv) it was contrary to an implied constitutional right to freedom KReGER
from and/or immunity from any Jaw, purported law or
rHl
e;{ecutivc act: COM,"O~
A. providing for or having a purpose, the effect or the likely WEALTH

effect of the destruction in whole or in part of a racial or

ethnic group, or the language and culture of such a group;
B, subjecting the children of a racial or ethnic group, solely by
reason of thcir membership of that group, to the legal
disability of removal and detention away from the group; or
C. constituting or authorising the crime against humanity of
genocide by, inter alia, providing for, constituting or authoris-
mg:
(i) the removal and transfer of children of a racial or
ethnic group in a manner which was calculated 10 bring
about the group's physical destruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely
effect of causing serious mental harm to members of a
racial or ethnic group; and
(iii) the deliberate inOiction on a racial or ethnic group of
conditions of life calculated to bring about its physical
destruction in whole or in part:
(v) the Aborixinals Ordinance, and, insofar as they purported to
aLlthorise the enactment or amendment of the Aborixinals Ordinance
or provisions thereof, the Administration Act. the Acceptance Act
and the Northern Aus/ralia Act, were not laws for the government of
the Northern Territory,
(vi) it was a law for prohibiting the free nercise of a religion
contrary to section 116 of the Constitution,"
The factual issues in these actions have not been tried but, for
reasons which I have earlier given (186), I reserved certain questions
of law arising on the pleadings in each of Ihe cases for the opmion of
the Full Court. In each case, the first of those questions was I1l the
following terms (187):
"I. Is the legislative power conferred by section 122 or the
Constitution or the power to enact the OnJinanecs 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,

(lSf,) Krugn \' Tile C"mrtlOl!",'"llh (199S) 69 ALJR llll'i.

(187ltn the s~~(Jnd a~li"n, Bral' .. 'Iile C"I11I1I1"II1ealtil, the paragraph nUlllocrs
mentioned ill th~ que,llion wew 4-9 and 26
40 HIGH COURT [I t,!%- Il)l)7

He"F A Ordinances and regulations referred to in paragraphs A, B, C and 0

19%-1997
of the claim to the extent pleaded in those paragraphs'!"
This question looks to the effect of the rights, guarantees,
T.. immunities, freedoms, or provisions referred to in paragraph 29" on
em"",,,. the Acceptance Act, the Admmlstration Act, the Northern Australia
WFAI.TH
Act, the Ordinance and the removal regulations. Unless some one or
more of these provisions arguably authorises the taking of action
B"'no",,CJ
which is inconsistent with one or more of the proposed grounds of
constitutional protection referred to in par 29, it IS unnecessary to
consider whether those grounds restrict the scope of s 121 or thl:
Constitution.
It can be accepted that the detention of Aboriginal children and
keeping them away from their mothers and families in Aboriginal
institutions or reserves might well have caused mental harm in at least
some cases but, as a matter of statulOry interpretation, none of the
impugned provisions can bc taken 10 have authorised or purportedly
authorised acts done for the purpose or with the intention of causing
mental haon as alleged in sub-par (iv), If the impugned laws
authorised thc keeping of a plaintiff child in Aboriginal institutions or
rcserves "in the intcrests" of thc child or for some other legitimate
purpose under s 16, they did not therehy authorise an Intentional or
purposeful infliction of mental haml, Tn retrospect, many would say
that the risk of a ehild suffering mental harm by being kept away from
its mother or family was too great to permit even a well-intentioned
policy of separation to be implcmentcd, hut the existence of that risk
did not deny the legislative pO\ver to make the laws which permitted
the implementation of that policy, It is therefore unnecessary to
consider sub-par (iv),
Similar]y, none of the impugned laws on its proper construction can
be seen as a law for prohibiting the free exercise of a religion, contrary
to the pleading in sub-par (vi), To attract invalidity under s 116, a law
must have the purpose of achieving an object which s 116
forbids (18R), None of the impugned laws has such a purpose. That
leaves for consideration the questions whcther s 122 would support the
impugned laws (sub-par (v)) and whether the scope of s 122 is limited
by restrictions arising from the tcrms or structure of the Constitution
affecting the judicial powcr of the Commonwealth (suh-par (i)),
equality under the la\\' (sub-par (ii)), or frcedom of movement and
association (sub-par (iii)).
The scope or
the leRiylative power conJicrred by s 122 of the
Constitution
Section 122 reads as follows:

(188) Allomey-Gencral iV;"li. Ex rei Black " Tlte C"'l/lllOrlWe<llrh 119R I) 1--1.6 CLR 559
a1579. 615-616. 653
190 CLR I] OF AUSTRALIA 41

"The Parli<lment m<lY nmke l<lwS for the government of <lny He "F ,\
1996_1997
Territory surrem.lcred by any State to and accepted by the
Commonwealth, or of any Territory placed by the Queen under the KRl'~FR
authority of and accepted by the Commonwealth, or otherwise
THE
acquired by the Commonwealtb, and may allow the represenlation COMMO;>l-
of sueh Territory in either House of the Parliament to the extent and we.'LTH

on the terms which it thinks fit."

Bronnan CJ
This section confers on the Parliament a legislative power thai has
heen described in the hroadest tenns: Isaacs J in R v Bernasconi (189)
described it as "an unqu<llified grant complete in itselr'; BarwIck CJ
in Spratt v Hermes (190) described it as a legislative power "as large
and universal as can be granted" and the Court described it in
Teori Tau v The Commomvealth (191) as "unlimited and unqualified
in point of subject matter". The power "to make laws for the
government" of a Territory can be divided into two hroad categorics,
namely. a power to make laws defining the form and institutions of a
government for a Territory of the Commonwealth (192) and a power
to enact the domestic laws of the Territory other than laws with respect
to the fonn and institutions of its government. An exercise of the
power conferred by s 122 may both define the power of a Territory
legislature and enact thc laws which, irrespcctive of laws enaeteJ by
that legislature, are to be the laws of that Territory. All that is needed
to attract the support of s 122 to a law enacted by the Parlimnent is "a
suffiCient nexus or connection between the law and the TelTl-
tory" (193). In the present case. the impugned laws were expressed to
operate m the Northern Territory and to be apphed to persons within
that Territory. They were laws which fell clearly within the prima
facie scope of s 122. The ground of alleged invalidity contained in
sub-par (v) is without substance.
However, s 122 must he construed in its context and, having regard
to the structure of the Constitution and some of its particular
provisions. some restrictions on the generality of its grant of legislative
power appear (194).
The Constitution, though in fonn and substance a statute of thc
Parlillment of the United Kingdom, was a compact among the peoples

(I ~<J) (I<JI~) 19 CLR 629 at 637.

(190) (1965) 114 CLR 226 at 242, S~~ also Coplwl DllpliCluor,l Ply Lid \' Aus/ralia"
Capiwl Ti?mlOn (I'!'i2) 177 CLR 24~ at 272.
(191) (1969) 119 eLR 564 at 570, See al,o Nor/hem La",1 Cou""il . The
Commollweal/Ii (191;6) i61 CLR 1 at 6
(192) Hawick Lid . Gray (1'.176) IlJ CLR liOJ ~I 607: Spmll " HermeJ (1965) 114
CLH 226 '11 2(;4.
(193)8erl<ick Ud v Gray (1976) 13.1 eLI< 603 at 607: ':Jrmm v Hermes 11(5) 114
CLR 226 at 242:. Cal,i/al Duplinu",., Pr, l.ld v AuSlmlj"JI C"pillil Ten'iron'
(1991) 177 CLR 241; at 271
(J94) Capilal Dupli",,!ors I'IY Ud ,. Almraliml Ca{mal TenilOry (1992) 177 CLR 24R
at 271-272. 2R8; S.'ikwi .. SlewmT (I ')94) 181 CLR 548 at 561
42 HIGH COURT [1996-1997

HCOF A of the lCderating Colonies, as the preamble to the Constitution

1~%-1997
declares. In Capital Duplicators Ply Ltd v Australiall Capital
Terriwrr 0(5) Brennan, Deane and Toohey JJ said.
'"The Constitution was enacted to give effect to the agreement
'"'
0'''.''0''- reached by the people of New South Wales, Victoria, South
WEALTH
Australia, Queensland. Tasmania and Western Australia to unite 'in
Rro"n:," rJ one indissoluble Federal Commonwealth' (196). The Constitution is
no ordinary statute: it is the instrument designed to fulfil the
ohjectives of the federal compact."
The leading object of the Constitution was the creation of the
Federation. The Constitution prescribed the institutions and powers of
the Commonwealth and, by ss 106 and 107, conferred upon the States
their constitutions and powers subject to the Constitution. The
Constitution thus preseribeu the charter of the respective powers of the
Commonwealth anu States. The federal compact was expressed in the
distrihution of legislative, executive and judicial power 10 be exercised
throughout the federating States by the Commonwealth on the one
hand and the respective States on the other. The boundaries of the
Commonwealth of Federation were coterminous ',>,'ith the aggregate of
the boundaries of the federating Colonies except the Commonwealth's
rights In anu power over the territorial sea, seahed and airspace and
continental shelf and incline which were acquired hy the new polity in
virtue of its international personality (197). There were in fact no
internal Commonwealth territories when the Commonwealth was
established. Section 122 conferred on the Commonwealth an au-
ditional, non-federal function: the government of territories external to
the Commonwealth and, hy cession from the States, of other territories
within the houndaries uf the Commonwealth. This function was non-
federal in the sense that the governmental powers 10 he exercised in
the territories were not shared in any way with the States (198). At the
time of Feueration, the only territories which were foreseen as
territories of the Commonwealth were the Northern Territory of South
Australia. the fiji Islands and British New Guinea (199). The
legislative powers conferred hy s 122 were the powers available for
exerCise hy the Commonwealth in anu for the internal territories, as
well as for the external territories. Section 122 is found in eh VI of the
Constitution - "Nev.' States"'. It stands outsiue Chs I-V whieh govern

(195) (t992) t77 CLR 248 at 274.

(1')6) Pr"amllie to Ihe C,m"""'IWeillrh or A1IS/mfja Conslil"li",) Acr I<jOO (Imp) and
Covering cl3.
(197) Ne''.' SOllth '\-',de.<
l' The Cmmnoll\n'a!th (Seas "nd S1Ihmergnl umds Cllse) (1975)
IVi CLR 337 m 373, 46')-470, SO'i.
(tYS)Sl'rall v Hfl'me, (1965) tl4 CLR 226 at 242: Capital DUl'licalOrs I'ly Ltd v
/lu,rtraliwi C"pila!'/emw,)' (199:'.) 177 CLR 24::\ al 272
(tY9) Capilli! Duplicworl" Pt" Lid v Auslralian Capi",f Terri/ory (l9Y2) 177 CLR 241\
ill 271
190CLRlj OF AUSTRALIA 43
thl: rdationship helween the CommonweJlth and the States. It stands 11 COrA
J996-1997
in a Chapter that confers on the Parliament of the Commonwealth the
powers required to vary the constituent politics of thl: fedcml compact KnGER
and to govern the territories of the Commonwealth that are not, or not ,
THe
yet, a constituent polity of that compact. TIle scope of s 122 is not
COM."O."-
confined by limitations or restrictions derived from provisions of the weALTH

Constitution that are designed merely to distribute powers as between

Bronna"
the Commonwealth and the States. But neithl:r docs s 122 impair or ('J

distort the distribution of powep.; as between the Commonwealth and

the States which is expressed in the federal compact (20D). Therefore,
when limitations or restrictions on Commonwealth legislative power
are imphed from the text or structure of the Constitution and are said
to qualify the legislative powers confcrn::d by s 122, it is necessary to
consider whence the proposed limitation or restriction is derived. The
position was stated by Barwick CJ in Spratt I' Hermes (201):
"It may also be granted that the powcrs which were given to the
Commonwealth were of different orders, some federal, limited by
subject matter, some complete and given expressly, and some no
doubt derived by implication from the very creation or existence of
the hody politic. Consequently, the need to observe the nature of the
powers sought to be exercised at any time by the Commonwealth IS
ever present. Bu\, the Constitution hrought mto existence but one
Commonwealth which was, in turn, destined to become the nmion.
The diJTen:m:e in the quality and extent of the powers given to it
introduced no duality in the Commonwealth itsdf. The undoubted
fact that the Commonwealth emerged from a federal compact or that
that compact IS reflected in the limitations placed upon somc of the
powers of the Commonwealth or that the new political entity
dcrived from a uniun of the peoples of the fomler colonies docs not
deny the essential unity and singleness of the Commonwealth."
Accordingly, although Ch III of the Constitution contains exclus-
ively the legislative power to confer judicial power ror exercise
throughout the federal Commonwealth (202), the Privy Council said m
Allorney-General (Cth) v The Queen (the Boilermakers' Case) (203)
that Ch III IS regarded
"as exhaustively descrihing the federal judicature and Its functions
in referencc only to the federal system of which the Territories do
not form part. There appears to be no reason why the Parhament
having plenary power under s 122 should not invest the High Court
or any other court with appellate jurisdiction from the courts of the

(::'00) Cupllal DU/lllwliJr.\ PI." Uti \' AU<!l'aliati C"pilal 'I'ernu)l') (I Y92) 177 CLR NR
(201) (1%5) 114 CLR 226 at 247
(202) R ,. Kirl,y. Ex palll Bllilermakers' .""def), o/Au,wuli" (1956) 94 CLR 2';4 at 270,
(2(13) (10l5?) 015 CLR 52Y al 54';, [19';71 AC 288 Jt 320,
44 HIGH COURT ( 1996-1997

HCOFA Territories. The legislative power in respect of the Territories is a

19%-1997
~
disparate and non-federal matter."
KRlJUER This is the accepted doctrine of the relationship between eh III and
TIlE
s 122 (204). As Kitto J said in Spratt v HemlCs (205):
Ol.\1"(J~
WEALTH "But it has been the: doctrine of this Court for fifty years.
consistently maintained notwithstanding criticism. that eh IJI is
Bron"a" U directed to a limited topic and accordingly has a limited application.
The doctrine arises from a c{)nsid~rali()n of the framework of the
Constitution and from many indications, to be found by working
through the ConstiWtiol! Act (63 and 64 Viet c III and the
Constitution itself, th<lt the first five Chapters of the Cunstitution
belong to a special universe of discourse, namely that of the creation
and the working of a federation or States, with all the safeguanls,
inducements, checks and balances that had to be negotiated and
carefully expresseJ !II order to secure the assent of the peoples of
the several Colonies, with their divers interests, sentiments,
prejuJices, ambitions and apprehensions, to unite in the federation.
When eh VI is reached, and it is found that s 122 gives the
Parliament a general power to make la\.\'s for the government of any
TerrilOry surrendered by any State 10 and accepted by the
Commonwealth, or of any Territory placed under the authority of
the Commoll\vealth or othenvise acquired by iL a change to a
fundamentally different topic is perceiveJ. The change is from
proVISIOns for the self-government of the new federal polity to a
provision for the government by that polity of any community
which comes under its authority whik not being 'a part of the
Commonwealth' (206)."
It follows that the ground advanced by the plaintiffs III sub-par 0) for
restnding the scope of s 122 fails.
Sub-paragraph (ii) asserts that the legislutive power conferred by
s 122 is restricted by a requirement of "'legal equality" including
equality under laws of the Commonwealth. The proposition. 11'
accepted, would lIIvaIidate the laws purportedly enacted under s 122
which treated Aboriginal children dirferently from other children.
Whatever may he said of the policy \',..hich underlay the impugned
provisions, it is impossible to derive a restriction of suostantive
equality to control the legislative power conferred by s 122. Even in
the federal provisions of the Constitution. some legislative inequality
is contemplated by s 51(xix) and (xxvi). Without attempting to
ascertain the operation of these sub-paragraphs, they destroy the

(2iYll R,' Ben"",.,.,,,,i (1915) 19 CLR 629 Jt 6.\7,63S: {'(iI'ler t' Ihe Kill!', r..' p,"'le Yee
(1')2(,) :n eLR 432 :II 44<),
(:20S) (1965) 1J4 CLR:226 at 250
C06} cf Harrison I>'lQOI\" lire COIIS/ili/lioll flt'llie CIlJi"""'IIl'l.'twh "I' AU.Ilraii". 2nd ~d
(191()J.p5~9.
190 CLR II OF AUSTRALIA 45
argument (207) that all laws of the Commonwcallh must accord He OF A
1996-1997
suhstantive equality to all people irrespective of race. In any event,
then.: is nothing in the text or structure of the Constitution v.'hich
purports so to restrict the power confcrn:u by s 122 as 10 reqUire
Te'
substantive equality in the treatment of all persons within the O,M:-tON.
Territory. Indeed, prior to 1967 (208), S 127 of the Constitution \VMLTlI
expressly discrimmated agmnst "Aboriginal natives" in the taking of
the census. The ground advanced by the plaintiffs in sub-par (ii) also Brenn'" (I

fails.
Sub-paragraph (iii) asserts the cxislcnn:: of "an implied
constitutional right to freedom of movement and association"
v.'hich restricts the scope of s 122. No such fight has hitherto been held
to be implied in the Constitution and no textual or structural
foundation for the implication has been demonstrated in this case. The
freedom contended for is advanced as a corollary of that freedom of
communication ahout government and political matters which is
implied in the Constitution, especially by reason of ss 7 and 24. But
the impugned provisions in this case were not directed to the impeding
of protected communications and, if action taken under those
provisions could have had that effect. the invalidity would strike at the
action taken, not at the provision which purported to authorise the
action.
Actions taken under the Ordinance or the removal regulations in the
interests of an Aboriginal ehild could not be attacked on the ground
that the interests of the child infnnged an Implied freedom or
movement or association. And If actions were taken under. for
example, s 16 of the Ordinance to achieve some other purpose and the
action had the effeet of impeding the freedom of communications
ahout government or political matters implied in the Constitution, a
question could arise as to the validity of the action. The discretion to
take action would be confined by the requirement not to impair the
freedom unreasonably or needlessly and lhe impugned provision
would be construed confonnably with the constitutional reLjuircment.
The constitutional requirement would not invalidate the impugned
provision, but would confine the power which it confers.
It follows that, whether or not some such implication as that
contended for in sub-par (iii) is to be found in the Constitution. its
existence would not have invalidated any of the provisions impugned
by the plaintiffs.
For these reasons, question I must be answered: No

(207) Based on Leerh " The C"m",o",ve"/th (1992) 174 CLR 4~5 at 486. per Deane and
Tooh~y JJ.
(208) Section 127 wa, repealed hy the'C,mstilmioll Allumi",) IAborigillu/sj 1')67,
46 HIGH COURT [1996-1997

IlC",A Questioll 2: Action for breach of u constitutional guarantee

-,
l~%-I'.m

K~l'GE~
In audition to seeking declarations or invalidity of the Acts,
On.linancc and regulations referred 10 In the amemJed statements of
Till]
claim, the plaintiffs seck damages for the removal and detention of the
CO.'1"OS- plaintiff children. Apart from any common law cause of action which
WEALTH may have accrued to the plaintiffs, they assert a right to damages by
reason of a breach of "the constitutional rights, guarantees.
Broll"a" CJ
Immunities, frccuOlns and provisions" referred to In the suh-
paragraphs which I have set out above. To raise the question whether a
cause of action arises by reason of such a breach. question 2 was
stated in the following terms:
"Docs 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 anu on hehalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort
or for hreach of contract) against the Commonwealth sounulllg III
uamagcs?' '
The Constitution creates no private rights enforceable dm;ctly by an
action for damages. It "is concerned with the powers and I"unctions of
government and the restraints upon their exercise", as Dixon J said of
s ':l2 in JllInes v The Commonwealth (209). The Constitution reveals no
intention to create a priv:lte right of action for damages for an allempt
to exceed the powers it confers or to ignore the restramts it Imposes.
The causes of action enforceahle hy awards of damages arc created by
the common law (including for this purpose the doctrines of equity)
supplemented by statutes which reveal an Illtention to create such a
cause of action for breach of its proVIsions. If a government docs or
omits to do anything which, under the general law, would expose it or
its servants or agents to a liahility in damages. an attempt to deny or to
escape that liability fails when justifiemion for the act done or
omission made depends on a statute or an action that is invalid for
want of constitutional support. In such a case, liability is not incurred
for breach of a constitutional right but by operation of the general law.
But if a government does or omits to do something the doing or
omission of which attracts no liability under the general lnw, no
liability in {.bmages for doing or omitting to do that thing is imposed
on the government by the Constitution.
It follows that no right of action distinct from a right of action in
lor! or for breach of contract arises hy reason of any hreach of the
protections claimed by the plaintiffs in the paragraphs of the respective

(209) (193'11 62 CLR 33<) at 362,

190CLRlj OF AUSTRALIA 47
amended statements of claim referred to In question 2. That question HCOf'A
IYY6-1 yn
must be answered: No
The remaining question., ,
KRl.'CiER

As the remaining questions arc posited on the condition that an THE

(h"MOS-
affirmative answer is given to question 2 or, in the case of question 3, 'HALTH
an affimlative answer to question I or 2, no answer to the remaining
questions is rcquired.
The plaintiffs must pay the defendant's costs.

DAWSOl' J. The plaintiffs in these two matters are Aboriginal

Australians who at the time of the events in question resided in the
Northern Territory. Each of the first five plaintilTs in the first action
and each of the plaintiffs in the second action complain that, whcn a
child, hc or she was' 'removed into and detained and kept in the care,
custody and/or control of' the Chief Protector of Aboriginals of the
Northern TelTitory or the Director appointed under the Aboriginals
Ordinance 1918 (NT) (the 1918 Ordinance) and thereafter kept in
institutions or reserves away from his or her mother and family. The
sixth plaintiff in the first action is alleged to be the mother of a child
who was so treated. The first removal is alleged to have occurred in
approximately 1925, the last in approximately 1949, and the last
detention is said to have ended in 1960.
The plaintiffs contend that the 1918 Ordinancc, to the extent that it
authorised the actions complained of and the making of regulations
empo\vering nominated officers to take the actions complained of, was
beyond power and invalid. To the extent that Commonwealth statutes
authorised the subordinate legislation (and the plaintiffs specify the
Northern Territory Acceptance Act IYIO (Cth), the Norrhem Territorv
(Administratio/l) Act 1910 (Cth) and the Northern Australia Act 1926
(Cth)), the plaintiffs say that those statutes were beyond power and
invalid.
Thc hasis upon which the plaintiffs allege invalidity is that thc
course of conduct of which they complain infringed ccrtain
constitutional rights or freedoms. Those rights or freedoms appcar
from par 29 of the amended statement of claim in the first action. It is
there alleged of that course of conduct that:
"(i) A. it was contrary to an implied constitutional right to freedom
from and/or immunity from removal and subsequent detention
without due process of law in the exercise of thc judicial
power of the Commonwealth conferred in accordance with
Ch III of the Constitution or of judicial power under laws of
the Commonwealth;
B. it purported 10 confer judicial power of the Common-
wealth -
(I) on persons who were not appointcd under or obliged
or entitled to excn:ise Ihe judicial power of the
48 HIGH COURT l1996-1997

IlCoFA Commonwealth in accordnnce with ell III of the

19%-1997
Constitution or jllUit:lal power unLier laws of the
K"lGE" Commonwealth;
, (2) other than on Courts e~tablisheLi unLier or in
THE
CI'-"M(>~
[Iccordance with eh III of the Constitution or under laws
''''"AUH of the Commonwealth:
(ii) it was contrary to an implied constitutional right to and/or
guarantee of legal equality including equality before and under. and
equal protection of, the law, anu 111 particular. laws of the
Commo1l\vcalth and laws made pursuant to or under the authority of
][IWS of the Commonwealth;
(iii) it was contrary to an implicu constitutional right to anuJor
guarantee of freedom of movement ,md association;
(iv) it was contrary 10 an llnplil.:d constitutional fight 10 fn.:cdom
from and/or immunity from any law, purported la\'.' or executive act:
A. proviuing for or having a purpose. thc clrecl or the likely
effect of the L1estruction in whole or in part of a racial or
ethnic group, or the language and cultule of such a group;
B. subjecting the children of a racial or ethnic group, solely by
reason of their memhership of that group, to the legal
disability of removal anu L1clention away from the group: or
C. constituting or authorising the crime against humanity of
genocide by, inter alia, providing for, constituting or authoris-
mg:
(i) the removal anLi transfer of chilLiren of a racial or
cthlllC group in a manner which was cukulatcLi to bring
about the groups physical dcslruction in whole or in part:
(ii) actions which had the purpose, the effect or the likely
effcct of causing serious mental harm 10 memhers of a
racial or ethnic group: amI
(iii) the L1eliberatc inJliction on a racial or ethnic group of
conuitions of life calculateu 10 bring about its physical
destruction in whole or in part;

(vi) it was a law for prohibiting the free exercise of a religion

cOnlrary to section 116 of the Constitution."
The plaintiffs also allege that the 191 R Ordinance and any laws
authorising its enactment. to the extent that they authorised the
conLluct complaineLi of, were not laws for the government of the
Northern Territory. All of the laws have long since heen repealed.
Brennan CJ, whilst recognising that, as a general rule, it is
inappropriate to reserve any point of law for the opinion of the Fun
Court before a determination of the facts which evoke consideration of
that point of law or of the facts on whieh the answer 10 the question
reserved may uepenLl, helLi that the manifest preponderance of
190 CLR 1] OF AUSTRALIA 49
convenicnn:: required such a course to be taken in these cases (210). He OF A
1~%19'i7
He reserved a numher of questions, but it is necessary for present
purposes to set out only the first two of them because the need to
answer the others depends upon an affirmative answer to those ,
KRl.'''ER

tHE
questions or one or other of them. The first t\.','o questions In the first
CO'IMON-
action are: WEAI,TII

"I. Is the legislative power con felTed hy section 122 of the

Constitution or the power to enact the Ordinances and regulations
referred to in paragraphs 7- J 2 inclusive of the Amended Statement
of Claim so restricted by any and which of the rights, guarantees,
immunities, freedoms, or provisions referred to m paragraph 29 of
the Amended Statement of Chiim as to invalidate the Acts.
Ordinances and regulations referred to in paragraphs A, 8, 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 lise to a right of action (distinct from a right of action in tort
or for breach of contract) against the Commonwealth sounding 11l
damages?' '
The questions in the second action arc not materially different.
Under s 122 of the Constitution, thc parliament may make laws' 'for
the government of any Territory surrendered by any Stale to and
accepted hy the Commonwealth. or of any Territory placed hy the
Queen under the authority of and accepted by the Commonwealth. or
otherwise acquired by the Commonwealth". The Northern Territory
was surrendered to and accepted by the Commonwealth pursuant to an
agreement with South Australia in 1907. That agreement was ratified
and approved by the Northem Territory Acceptance Act 1910 (Oh).
Pursuant to s III of the Constitution, the Northern Territory thereupon
became, and remains, "subject to the exclusive jurisdiction of the
Commonwealth" .
Upon acquiring exclusive jurisdiction over the Northern Territory,
the Commonwealth enacted the Nur/hem Territory (Administration)
!Lct 1910 (Oh). Section 13(1) of that Act empowered the Governor-
General to make Ordinances having the force of law in the Northern
Territory. Under s 13(2) and (3) Ordinances were requited 10 be laid
hefore the Houses of Parliamcnt, either of which had the power of
disallowance. Until 1947, the powers of the Governor-General
remained essentially unchanged, although under the Northern
Australia Ac/ 1926 (Cth) the Northern Territory was divided mtu twu
territories (known as North and Central Australia) which were

(2111) See Kl"uger C' The Com",m"wIlIrIJ (I <)')5) 6') ALJR ~~5
50 HIGH COURT [1996-1997

HCmA separately administered, In 1947 the Northern Territory

199619n
(Admillistration) Act 1947 (Ctll) amended the earlier Act of the same
name to create a legislative cOllncil for the Northern Territory. A new
section, s 4u, provided that "[s]ubject to this Act, the Council may
THE
COMMON.
make Ordinances for the peace, order and good government of the
WBLTH Territory". Further sections wcrc added which provided that such
Ordinances had no effect until assented to by the Administrator of the
Northern Territory accon.ling to his discretion (5 4V). and that the
Governor-General had power to disallow any On.linancc within six
months of the Administrator's assent (s 4W). The Administrator was
nol to assent 10 any Ordinance relating to "Aboriginals or Aboriginal
labour" unless the Ordinance contmned a clause suspemhng its
operation until the signification of the Governor-Genera! thereon
(s 4y(c).
lL was pursuant to s 13(1) of the Northern TlTriton' (Administration)
Act 1910 (Cth) that the Governor-General made the 1918 Ordinance
The Ordinance was amended by the Governor-General before 1947
amI by the legislative council after 1947 but little appears 10 tum on
these amendments. The Ordinance was repealed by the \Velfare
Ordinunce 1953 (NT), with effect from 13 May 1957. Whilst the
plaintiffs also complain of regulations made under the regulation-
making power in the 1918 Ordinance (s 67), it became clear in oral
argument that their altack was upon ss 6, 7 and 16 of the 1918
Ordinance itself. Because, save possibly for s 7, no significance for
prescnt purposes attaches to the amendments to the 1918 Ordinance, it
is convenient to deal with its provisions as they oflgmally stood.
Section 6( I) provided:
"The Chief Protcclor 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 10 be, and may take him into his custody.'
The scction went on in sub-ss (2) and (3) 10 require persons upon
whose premises an Aboriginal or 'half-caste" (211) was present to
facilitate his being taken into cuslOdy and to allow the powers of the
ChiefProteelor to be exercised whether the Aboriginal or "'half-caste"
was under a contract of employment or no\.
Section 7 provided-
"(I) The Chief Protector shall be the legal guardian of every
Aboriginal and of every half-caste child, notwithstanding that the
child has a parent or other relative living, until the child attains the
age of eighteen years, except while the child is a State child within

(~ll) The ler"" "Ahoriginw'- illlJ "half-caste" were defined in s 3.

190CLR 1J OF AUSTRALIA 51

the meaning of the Act of the Stale of South Australia in force in H COF A
19%-1997
the Northern Territory entitled The Srate Children Act 1895, or any
Act of that State or Ordinance amending or substituted for that Act.
(2) Every Protector shall, within his district, he the local guardian ,
KRU"ER

THE
of every such child within his district, and as such shall have and
C""MON-
may exercise such powers and duties as arc prescribed." WHLTH

Section 7 was repealed by s 7 of the Aboriginals Ordinance (No 2)

1953 (NT) and replaced with the following:
"The Director is the legal guardian of all Aboriginals. "
Section 16 provided:
"(1) The Chief Protector may causc any Ahoriginal or half-caste
to he kept Within the boundaries of any reserve or Aboriginal
institution or to be removed to and kept within the boundarics of
any reserve or Aboriginal institution, or 10 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 removeu or
kept within the boundaries of any reservc or Ahoriginal institution
when ordered by the Chief Protector, or resists removal. or who
refuses to remain within or attempts to depart from any rcserve or
Aboriginal institution to which he has been so removeu, or within
which he is being kept, shall be guilty of an offence against this
Ordinance.
(3) Sub-section (I) of this section shall not apply to any
Ahoflgmal or half-caste-
(a) who is lawfully employed hy any person: or
(h) who is the holder of a permit to be absent from the reserve
or Aboriginal institution in question: or
(c) who is a female lawfully married to and residing with a
hushanu who is suhstantially of European origin or descent; or
(d) for whom, in the opinion of the Chief Protector,
satisfactory provision is otherwise made."
Pari III of the 1918 Ordinance established a system of Aboriginal
reserves and institutions and the effect of ss 6, 7 anu 16, particularly
s 16, was to enable the Chid Protector to placc Aboriginals in those
reserves or institutions, if necessary against their will, and thereby to
restrict their freedom of movement. Moreover, under s II of thc 1918
Ordinance, the Auministrator coulu declare any place to be a
prohihited area so that it would be an offence for an Aboriginal or
'"halfcaste" to be or remain within it. It was 111 purporteu exercise of
the powers conferred by these provisions thaI the events uf which the
plaintiffs complain took place. However, s 6 made rt clear that the
powers of thc Chief Protector under that section were to be exercised
in the intcrcsts of Ahoriginals and "'half-castes" and whilst s 16 uid
not contain any explicit requiremcnt that the powers which it conferred
52 HIGH COURT [1996-1997

H COI-;\ were to be exercised for the welfare of Aboriginals or "half-castes". It

1996-1997
IS clear enough that it was so circumscrihed. In Wuters v The
COllllllonwealth (212), Fullagar J described the powers of the Director
(as they had then become) under s 16 as "vast" and as likely to be
T" exercised over those who are weak and helpless". His Honour
C"""ON-
WEALTH continued:
. 'He must often act on his own opinion In cIrcumstances or
difficulty, and no court can substitute its opinion for his. But, on the
other hand, the courts must be alert to see lhat, if that which is not
expected docs happen and he docs ""listakc or ahuse his poweL the
mistake or abuse does not go either undetected or unredressed."
Fullagar J was of the view that under s 6 of the 1918 Ordinance the
welfare of the Ahoriginal concerned may have heen the sole
consideration, but that under s 16 it was not the only legitimate
consideration (213). It was his Honour's VICW that under that section
the Director was entitled to have regard. not only to the welfare of the
particular AhoriginaL hut also to "the wclfare of other Ahoriginals
and the general interests of the community in which the particular
Ahonginal dwells" (2]4).
The precise scope of s 7 in constituting the Chief Protector (and
then the Director) the legal guardian of Ahoriginals is far from clear as
was recognised hy the Supreme Court of the Northern Territory 10
Ross v Chamhers (215). In that case Kriewaldt J expn::sscd thc view
that the guardianship for which the section provided could not, as
regards adult Aboriginals, embrace all the incidents which normally
attach to the relationship of guardian and ward. However, it does not
appear that anything turns upon that point in these cases.
The predecessor to the 1918 Ordinance was the Northern Tariton
Aborifiinal.\' Act 1910 (SA) which ',','as continued in force by s 7 of the
Northern Territory Acceptance Act 1910 (Cth) until repealed hy the
1918 Ordinance, In relevant respects the 1918 Ordinance docs not
differ from the Act which it repealed. That Act was prompted hy thc
plight of Aboriginals in the Northern Territory who \overe said to he
. 'rapidly decreasing through disease, neglect, and insanitary con-
ditions" (216). The 1918 Ordinance would appear to have been
motivatcd hy similar concerns. The measures contemplated by the
legislation of which thc plaintiffs complain would appear to have been
ill-advised or mistaken, panieu]arly hy contemporary standanJs.
However, a shift in view upon the justice or morality of those
measures taken umJcr an Ordinance which was repealed over forty

(2t2) (1951) 82 CLR 188 at t94,

(213) Wma.\{1(51)~2CLR 1~8a(195.
(214) Wmu., (l95J) 82 CLR 188 ~( 195,
(215) Cnr"ported: 5 April 1951'>
(216) Se~ Second Reading Sp~~ch (0 (he I"onhern Territor)' Aborigin", Bill. South
AustfJliJ. Legislative A,.,,,mhly.:; (Jdohcf 1910. r 672.
190 CLR I] OF AUSTRALIA 53

Yl:ars ago docs nOl or itself [Jomt to the constitutional invalidity of that HCOF,'I
I ~Yh_l Y<J7
legislation and it is to the legal basis of the plaintiffs' claims that r
now must turn. The legal basis of those claims concerns the
constitutional validity of the provisions in issue, and docs not raise the
THE
question whcth~r the actions complained of were authorised by those OJ\'Mn~_
proVISIOns. \VE. LTII

Section 122
Section 122 of the Constitution provides:
. The Parliament may make laws for the government of any
Territory surrendered by any State to and accepted by the
Commonwealth, or of any Territory placed by the Queen under the
authority of and accepted by the Commonwealth, or otherwise
acquired by the Commonwealth, and may allow the representation
of such Territory in either House of the Parliament to the extent and
on the terms which it thinks fit."
The 1918 Ordinance was made under legislation which was reliant
upon s 122 for its validity. The plaintiffs claim that, to the extent that
it authorised the making of the 1918 Ordinance, or at least those parts
of it of which they complain, the legislation did not constitute alaI,','
"for the government of any Territory" within the meaning of s 122
and was invalid. The basis upon which they make that submission is
that for a law to be for the government of a Territory it must be
reasonahly capable of being seen as appropriate and adapteu to the enu
of governing the Territory. The plaintiffs argue that the 1918
Ordinance constituted an extraordinary intrusion upon fundamental
rights and common law liberties, exhibiting "such callous disregaru
for familial unity and cultural cohesion in the Aboriginal community"
that its purpose can only be seen as the arbitrary executive detention of
Aboriginal citizens and the cultural and physical extinguishment or
disintegration of that racial minority. The plaintiffs submit that such a
law cannot be seen as appropriate and auapted to the government of
the Northern Territory and for that n::ason is outside the scope of
s 122.
That submiSSIOn must be rejected. I have elsewhere expresseu my
view that no real assistance is to be gaineu by asking whether
legislation is appropriate and adapted to some end when testing its
validity under s 51 of the Constitution, at all events where a non-
purposive power unuer that section is involved (217). That test can
have even less application where the power III question is, like s 122. a
power to legislate for the government of a Tcrritory ami where, unlike
the powers conferred by s 51, the power is not confined by reference
to subject matter. In Tfori Tall Ii The Commonwealth (218) the Court

(217) See Lea,k,' The CommOllwealth (t996) IS7 CLR 579

Ct~) (1969) tt'! CLR 564 at 570.
54 HIGH COURT [ 1996-1997
H COF A uescribed the legislative power conferred by s 122 as "plenary in
1996-1997
~
quality and unlimited and unqualified in point of subject malleI'''. That
KRL{iEN statement was approved by the whole Court in Northem Land Council
, v The Cnmmnmrealth (219). It IS In accordance with the view
TilE
Cr'\1"'>N_
expressed by Barwick CJ in Spratt v Herl/lfS (220) \vhere he said:
"Section 122 gives 10 the Parliament legislative power or a different
WEM,TH

order to those given by s 51. That power IS not only plenary but is
unlimited by n::fercncc to subject matter. It is u complete power to
make laws for the peace, order and good government or thl:
Territory - an expression cundensed In S 122 to 'for the
government of the Territory'. This is as large and universal a power
of legislation as can be granted. It is non federal in charactcr In the
sense that the total legislative power to make laws to operate in and
for II Territory is not shared in any wise with the States."
And in Capital Duplicators Ptv Lid \' Australian Capital Terri
tory (221) Brennan, Deane and Toohey JJ descrihed the power as "no
less than the power which would have been conferred if the 'peace,
order and good government' formula had becn used". The result is
that "all that need be shown to support an exercise of the power is that
there should bc a sufficient nexus or connection between the law and
the Territory" (222). There can be no douht of the eXIstence of that
nexus or connection in this case.
It is true that in LOfllshed l' Lake (223) Dixon CJ dppears to have
thought that s 122 may be viewed as conferring a power to legislate
with respect to a suhjeet maller. He said that it "is a power given to
the national Parliament of Australia as such to make laws 'for'. thalls
to say 'with respect to', the government of the Territory" He
conlinUl:J: "The WOlds 'the government of any Territory' of course
describe the suhject maHer of the power." Perhaps DiXOn CJ was there
usmg the expression "suhject matter" in a different sense. If, as is
incontrovertible, the power of the Parliament to legislate under s 122 is
not conllned 10 particular heads as it IS under s 51, to speak of subject
matter in that context can only he to advert to the requirement or some
territorial nnus such as has heen said to exist in the case of a State
legislature which has power to legislate I"or the peace, order and good
government of the State (224). Nevertheless, it is unusual for the
legislative power of a State to be descrihed as a pO\ver with respect to
a suhject matter. namely, the State, amL setting to onc side such

(119) (1986) 161 CLR 1 at (,

(220) 1]%5) I]~ CLR 226 at 241242
(211) (1992) 177 CLI? 248 al 271
(222) See tkr,,'ck Lid ,. Grin' 1]976j 133 CLR 6fH at 607,
(22:1)(19.i8 'I 99 CLR 132 at 141 S~e "Isu C"f,ila,' TV ,1- Appl;",,,.-e.\' Pn' Lid v F,ti<'t!J1e1'
(1971) 125 CLR 591 at 605, pn ~kn/ie, J: ilu,\lra/i"I! Cap;w! Telal.,Ion PI.' Lid
,. The C"mrrwl!wcolth 11992) 177 CLR 106 at 222-22'. p~r Guudroll J
(224) See Ullio" SIP"",shif' Co ,,{Au,<tr<l!ia /'1.,' f.ut \' KlIIg (1')88) 1(,(, CLR 1 at 121",
 190 CLR 1J OF AUSTRALIA 55
qualifications [is may possibly be found elsewhere In thl: Constitution, HCOFA
the scope of the legislative power conferred upon the Parhament by
s J 22 with respect to thc territories is no less than that possessed by
the State legislaturcs with respect to the States. As Mason J said in
-
19%1997

K"'''"R
,
THE
Bem'id Ltd v Gray (225 j, il IS: CO,1W,-'-
WE"LTH
"a plenary power capahle of exercise in relation to Territories of
varying size and importance which arl: at different stages or political
and economic development. It is sufficiently \vide to enable the
passing of laws providing for the direct administration of a TelTitory
by the Australian Government without separate territorial adminis-
trative institutions yet on the other hand it is wide enough to
enable Parliament to endow a Territory with separate political,
representative and administrative institutions."
The Commonwealth Parliament is, with respect to the territories, a
completely sovereign legislature (226).
However, it seems clear that Dixon CJ had something clse in mind
when he spoke of the power under s 122 as heing a legislative power
with respect to a suhject matter. The view which Dixon CJ expressed
in Lamshed v Lake first appeared in Australian Nmianal Ainravs Pty
Ltd v The COlllmOf/wealth (227). There he indicated that in his opinion
s 122 extended heyond conferring power to make laws for the
government of a Territory as a geographical or local unit and conferred
power to legislate upon a national hasis with respect to territories. It
was in that sense that he viewed territories as the suhjeet matter of a
legislative power. apparently thinking that it was impossible 10 regard
the national Parliament as being confined, even in relation to a
Territory. to the making of laws with only a local apphcation. That IS
Why in the passage in wmshed v Lake to which r have already referred
he used, and placed emphasis upon, the term "national Parliament".
He did so in order 10 reject an argument thai the legislative function
which s 122 confers upon the Parliament is essentially that of a local
legislature in and for a Territory with a power territorial1y restricted to
the Territory. The latter ....as a view which had bl:cn accepted hy
Latham CJ and Williams J in Australian National Ainmys Ptl' Ltd v
The Commonwealth (228) amI was consonant with the earlier cases of
Buchanan r The Commonwealth (229) and R v Bernasconi (230). The
view expressed by Dixon CJ would seem, with respect, to beg the
question by referring to the Parliament in the context of s 122 as the
"national Parhament", for in speaking of the power to make laws for

(225) (1976) 1.1-' CLI{ 603 m 607,

(22(,1 S"" Cap/wi n 1 & f1pl'lJIII",e5l'rv Lid, Falumer(1971) 125 CLR 591 m611. pCI'
Wind"y"r J,
(227) (1945) 71 CLI{ 29 ~l ~4-~5,
(228) {19451 71 CLR 29 Ul 62_ 102-103.
{n'l) (l\.lt3) 16 CLR 315.
(2.<0) (19151 19 CLR 62':!.
56 HIGH COURT [ 1996-1997

He OF A the government of any Territory, s 122 is n::ft:rring to the government

1996-1997
of a geographical unit and not of the nation as a whole. Moreover, the
view taken by Dixon CJ in Lamshed v Lake regards the power
conferred hy s 122 as if it wen: the equivalent of a head of power
T", under s 51 so that it hecomes a power to make laws for the peace,
CO".\1())-J-
"'MLTH order and good government of the CommollwcalLh with n::spccl to
territories. In accordance with this view. Dixon J in Australian
U,w-"mJ
National Ain-l'ays Pty Ltd .' The CO/lllllonlvea{th (231) thought that the
incidental power under s 51 (xxxix) might he Invoked In aid of the
power under s 122. Section 122 is not. however, expressed in the same
terms as s 51 und is not made subject to the Constitution, as is s 51.
The only separate judgments, other than that of Dixon CJ, whICh
\'\'ere delivered in Lamshed v Lake were those of McTiernan, Williams
and Kitto JJ McTiernan J dissented due 10 the construction he placed
on the statutory proVision in question, and did not appear to accept the
view of s 122 taken hy Dixon CJ. Williams J, who also dissented.
adhered to the view which he had expressed in Australian National
Airwavs PI\' Ltd v The Commonwealth. Kitto J, a memher of the
majority, appeared to accept the line of reasoning ado[1ted hy
Dixon Cl
However. in Spratt v Hermes (232) Kitto J recanted the opinion he
had expressed in Lall/shed v Lake. He [1olllted out that the first five
chapters of the Constitution are concerned with working out the
federal compact and bclong to "a special universe of discourse"
When one comcs to Ch VI and s 122 "a fundamentally different topic
is perceived". To Kitto J the changc was "from provisions for the
self-government of the new federal polity to a proVIsion for the
government by that polity of any community which comcs undn its
authority while not hcing 'a part of the Commonwealth'." Of course,
as Kitto J rccogniscd, in some senses a TerritoI)' is part of the
Commonwealth, hut that term is of variable meaning and where it is
used to describe the federation of States, a Territory lil.:s outsidl.: its
concept. Kitto J continued (233):
"Whether or not one or two of the miscellaneous provisions in
eh V apply to the territories - ss 116 and 11 S have been
suggested, eg in Lall/shed v Lake (234), though further consideration
has madl.: me more doubtful than I was about them - it sel.:ms clear
enough that the limitations which eh I puts upon legislative power
in the working of the federal system, anxiously contrived as thcy arc
with the object of keeping the Parliament to the course intended for
it, are thrown :lside as inelcvunt when the point is reaclled of
enahling laws to he made for the government of lerritories which

.11) (19..5) 71 CLR 29 m S4.

~2) (1%5) 114 eLI< 226 Cl1 250
.13) S,""II' Hermes (19651 114 CLR 226 at 250-251
~4) (195S) \!\! elR 132 JI 142. 143.
190 CLR 11 or- AUSTRALIA 57
stand outside that system: for s 122 uses terms apt to authonsc the II C OF A
)<)96-J<)<)7
Parliament to make what provision it will for eve!)' aspect and every
organ of Territory government. The exercise of the judicial power KRUGER
which is a funclioll of government of a Territory is within the
THE
unrestricted authority thus in terms conferred. The Court decided
Co""",,-
quite early, in Buchanan v The Commonwealth (235), that the "'FALTH

Constitution, addressmg itself here to something different from that

to which its first five chapters have been devoted, makes on the new
topic a proVision which is appropriately free from all concern with
problems of fcdcrahsm. The concern here is not only with 'a new
consideration', as Isaacs J called it in R v Bernasconi (236), but with
'a l.hsparate non-federal matter' as Viscount Simonds called it III
Afforney-General (Cth) v The Queen (237)."
The difficultics to which Kitto J advcrted were not considered m
Attorney-General (WA) v Australian Natiol/al Airlines Com-
mission (238). Lamshed v Lake was applied in that case but, although
the majority may not have intended as much, the result of its
application appears to suggest that any law having a beneficial effect
in a Territory falls within the pO\ver conferred by s 122, Gibbs J (239),
in dissent, was provoked to remark that to give s 122 such an
operation would ""elevate it to a position of importance, even
dominance, which it cannot possibly have been intended to occupy in
the Constitution", an observation which went unanswered in the
majority judgments.
Whilst the judgment of Kitto J in Spratt v Hermes does not reject
the result in Lamshed v Lake, much of his reasoning is inconsistent
with the reasoning which led to that decision. Lamshed v Lake, and the
later dccision in Attorney-General (WA) v Australia!! Nmional Airlines
Comminiol!, stand, ot course, as authorities of this Court, but it is
possible at the same time to question whether they require the
conclusion thaI eh V of the Constitution has any application to the
territories. Kitto J doubted whether ss 116 and 118 had any such
application and they, along with s 109, are the only sections of Ch V
that could possibly do so, bec<luse the other sections are confined to
the States in express terms.
The application of s 118 to the territories would involve a somewhat
cunous construction, That section requires full faith and credit to be
given throughout the Commonwealth to the laws, the puhlic Acts and
records, antl the Jutlicial proceedings of every State. It is, of course,
possihlc to apply s 118 to the territories but to do so immediately

(235) (1913) ]6 CLR 3] 5.

{236) (]<)])]<) CLR 629 at 637.
12:17) [19571 AC 28i; ~1 ,20; (]<)57) 95 CLR 529 at 545
(238) (976) 138 CLR 492.
{239) AII''''lIn'-Gcllcml ill'iI) \' AII-'Indi"" iVwim",1 /tirlilll.'.I' C",,,miui,,n (1976) 138
CLR 492 ~l 504
 HIGH COURT [1996-1997

IIC""A raises the question why, if it was intended to apply to them, full faith

-
1996-19n

,
KRUUER
and credit should not have been required to be accorded in the States
to the laws, etc, of the territories. The answer, upon the view expressed
by Dixon CL is that it was unnecessary because TerrilOry laws arc
TH~
C()M""~
national laws. But the more convincmg answer IS that the territOries do
WEALTH nut enter the province of Ch V which is, after all, headed "Thl:
States". A construction of s liS which required thm full faith and
D,w.\nn) credit bc given in the telTitoHes to Ihe laws, etc, of every Statl: woukl
rob that section of the mutuality or reciprocity it was obviously
intended to have, for on no construction could s 118 require that full
faith and credit be given in thc States to the laws. etc. of the
territories (240).
Similarly, s 109, which ueals with inconsistency bet,wen State and
Commonwealth laws, would appear to be uealing with inconslskncy
between State and federal laws and not to have in contemplation
inconsistency between State and Territory laws. And if, contrary to
Lamshed v Lake, Territory laws were confined 10 a territorial operation
there would be no more nel:d fur a s 109 In relation 10 TerrilOry laws
than there is need fur such a sl:ctioll to resolve connict bl:tween the
laws of different States,
Section 116
When one comes to s 116 different considerations apply. That
section provides:
"'The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, ur for prohibiting
the free exercise of any religion, and no religious test shall be
required as a qualification for any office or public trust under the
Commonwealth. "
Various views hllVl: been expressed about the character of s II () and its
application to the legislative power of the Commonwealth under
s 122 (241). However, there has been no real examination uf the
question or any attempt to reconcile the eXisting authorities, save
perhaps in the judgment of Gibbs J in Mrorney-Gellcral (Viet): Ex rei
H/ack v The Commo/!'Feallh (2421. Gibbs J expressed his duuhts.
notwithstanding dicta to the contrary, whether s 116 had any
application to laws made under s 122. He pointed out that the dicta are

(240l S.-:"Arlder.''''I'' !,','i,. AlldPrw/I Rwli" & TV F/y Lid (1965) 114 OJ, 20 al .,1. per
Killo J
(41) S.-:.-: Adelaide C" "r fe/JOwl> '.< ll'imesses Inc .' The COllilliotlWe<l!liI (I 'i4,,) ri7 CLR
II ri al 123. 156-157: LOrr/shed v I"'ke (19';1\) 99 CLR 1.,2 at 143: Sl'mll c' Ham",'
(1965) 114 CLR 226 at 250: T~ori Ta" \ 'rhe C"III/lIOII\.eol/1i ([%9) 119 f'LR
564 at 570: C"e. The Conm",,,,,eal,1r (1979) 53 AI.JR 403 al 408: 24 ALR 11l\
al 129: Allome.\'-(i~JI~ml (Vir'/); Ex rd Black. The COllltJIollln'allh (I Yl\ I) 1..6
CLR 559 J157ri-5n ';93-59.., 61S. 621 M9.
(242) (1981) 146 CLR 559 'II 593-594
190CLR1J OF AUSTRALIA 59
ycry lhfficult to reconcile with the decision in R v Bernasconi (243) He OF A

and that if s 122 is limited hy s 116, the latter section will have a much
larger operation in the tcrritoncs than in the States since s 116 is not
expressed to hind the States.
-
1996-1997

KRUGER

rllr
In R Ii Bernasconi it was held that s 80 of the Constitution, which COMMO~.
requires the trial on indictment of any offence against "any law of the "'BUll
Commonwealth" to be by jury, does not restnct the power of the
D,w,,,n)
Commonwealth to make laws under s 122. Section 80 is to be found in
Ch III of the Constitution dealing with "The Judicature". Griffith CJ
said (244):
"In my judgment, Ch III is limited in its application to the
exercise of the judicial power of the Commonwealth in respect of
those functions of government as to which it stands in the place of
the States, and has no application to territories. Section 80,
therefore, rclatcs only to offences createtl hy the Parliament by
Statutes passed in the execulion of those functions, which arc aptly
described as 'laws of the Commonwealth'. The same term is used in
that sense III s 5 of the Constitution Act itself, and in ss 41, 61 and
109 of the Constitution. In the last mentioned section it is usetl in
contradistinction to the law of a Stale. 1 do not think that in this
respect the law of a Territory can be put on any different footing
from that of a law of a State."
Isaacs J said of s 80 (245):
'But the proviSIOn 1S clearly enacted as a limitation on the
accompanying provisions, applying to thc Commonwealth as a self-
governing community. And that is its sale operation.
When the Constitution, however, reaches a new considerotion,
namely, the government of territories, not as constituent paris of the
self-governing body. not 'fused with it' os I expressed it in
Buchanan's Case (246), but rather os parts annexed to the
Commonwealth and subordinate to it, then s 122 provides the
appropriate grant of power."
Gavan Duffy oud Rich 11 adopted the view of Griffith CJ.
R v Bernasconi was not ovenuled in Lamshed v Lake or 111 any
other decision of this Court. Its reasoning is plainly inconsistent with a
great deol that wos said in Lamshed Ii Lake bUl there is much that is
open to doubt in the latter decision as was rccoglllsed by Kitto J in
Spmll v Hermes. There is even more that is open to douht in Attortlcy-
General (WAj v Australian Natiollal Airlines Commission. Section 80
imposes a requirement upon the Commonwealth in what would appear

(243) (I'!I: t'l CLR 62')

(2M) R \' Bemascon; (1915) I'! CLR. 629 at 635,
(245) H v lit'mmc()lI; (I') 15) 19 eLR 629 al 637
(246) (1913) 1(, eLR. 31:> at 335
60 HIGH COURT [1996-1997

He OF A to be ahsolute lcnns, as UOCS s 116. Section 80 appears in eh III In

-
19%-J9n

KR<J';>:R
,
general terms. Section 116 appears in eh V which, at least by its
heading, is confined in its application to the States. In my opinion,
whal was said 01 s 80 in R v Bernusconi applies a fortiori to s 116. I
THE
uo not think that it is possible while R v Bernasconi stands to hold that
CD."""'" s 116 restricts s 122. Nor do I think Ihn! the reasoning in Lamshed v
'''EALTH

Luke is ncn::ssarily to he preferred to that in R v Bernasconi.

The explanation why s 116, unlike the other sections in ell v, is
directed to the Commonwealth is that uhimatcly the maLler with which
those responsible for its drafting were concerned was the possibility
that, because of the reference to "Almighty God" In the preamble to
the Constitution, thcre might be a perception that the Commonwealth
had the power to interfere in matters of religion. The clause v,'hich
eventually became s 116 was originally drafted to include the States.
hut In order to emphasise the prohihition lInposed upon the
Commonwealth, the States were excluded. The amendment in that
form was moved by Mr Higgins who said (247):
"My idea is to make it dear beyond doubt that the powers whieh
the states individually have of making such laws as they like with
rcgard to rcligion shall remain umJisturhed and unhroken. and 10
make it clear that in framing this Constitution there is no intention
\vharever to give to the Federal Parliament the power to interfere in
these matters. My ohject is to leave the rcscrved rights to the states
where they arc. to leave the eXisting la\\' as it IS."
The appearance of s 116 in a chapter headed "The States" has often
heen rcgarded as anomalous. but In fact the section deals with the
division of legislative power hetween the Commonwealth and the
States within the federation, There is no suggestion of any dcsire to
cxtend the restriction imposed upon Commonwealth federal power to
the "disparate and non-federal mailer" (248) tlealt with In s 122. Tl.le
States arc not precluded by s 116 from doing those things which the
Comlnon\vealth is prohihitetl from doing antl there is no reason to
suppose that the Commonwealth was to be inhibited in a way in which
the States are not in its capacity to legislate for the government of any
TelTitory.
For these re.asons, I am of the opinion that the power of the
Commonwealth Parliament to legislate under s 122 for the government
of thc telTitories is not restricted by s 116. I should add that, if I am
wrong in that conclusion. I would agree with Gummow J. for the
reasons given by him. that the 1918 Ordinance contains nothing which

r:;47) Ottlcial Record f,f the Debate., or the Au-'troimiwi Fedeml COIa'elll;',,,.
(Melbourne), 2 March l~n. vol V. p 1769,
(24~) S.:e """'rlley-Genel'"t (eth) \' The QlIun (1957) 95 CLR 529 m 545; [1957J AC
2gg al -'20
190 CLR I] OF AUSTRALIA 61

would enable it to be srlid thai it is a law for prohibiting the free H('Of A
{'N6_{<)97
exercise of any religion.
Due process of law and the judicial power oj the Commonwealth
In a numher of recent cases it has heen pointed out that the THE
COMMON-
Australian Constitution, with few exceptions and in contrast with its WEALTH
American model, does not seek to estahlish personal liherty hy placing
restrictions upon the exercise of governmental power (249). Those D,,,,,.,,,,,j
who framed the Australian Constitution accepted the view that
individual rights were on the whole best left to the protection of the
common law and the supremacy of parliament. Thus the Constitution
deals, almost without exception, with the structure and relationship of
government rather than with individual righLs. The fcLLers which arc
placed upon legislative action are, for the most Palt, for the purpose of
distributing power heLween the federal governmcnL on the one hand
and State governments on the other, rather than for the purpose of
placing certain matters beyond the reach of any parliament. The
Constitution does not contain a Bill of Rights. Imb::d, the I R98
Constitutional Convention rejected a proposal to includc an express
guarantee of individual rights based largely upon the Fourteenth
Amendment to the United States Constitution and including a right to
due process of law and the equal protection of laws (250). The framers
preferred to place their raith in the democratic proccss for thc
protection of individual rights and saw constitutional guarantees as
restricting that process. Thus the ConstilUtion contains no general
guarantee of the due process of law. The few provisions contained in
the Constitution which afford protection against governmental action
in disregard of individual rights do not amount to such a general
guarantee (2.51). It follows that, in so far as the plaintiffs' claim is
reliant upon a constitutional right to the due process of law, it must
rail.
The plaintiffs contend that the actions of which they complain
amounted to the exercise of Judicial power otherwise than hy courts
constituted in accordance with Ch III of the Constitution and hence
could not he validly authorised by the 1918 Ordinance. That

(249) See Allomev-Genera) (C'h), F-x rei M"K;nla.\' v The CO/1l/1lo!lweul,h (1975) 135
CLR I at 24: Dr",m ,. The Queen (19R6) IflO CLR 17\ ;It 208. 214; ""ari"lIwide
News PI., Lid. Will., (191)2) 177 CLR I ~I 43-44: Allslraliwl Capilal Television
l'ri'Lrd r "I'Ile CO/lllluml<""llh (1992) 177 CLR 106 at 135-136. 186: "I'I1<,of!hwwus
\' Herald &: Weekly TiHlt.\' 1.ld (19941 182 CLR 104 ~I 193: CwrlifJ--e v "I'Ile
C",nlllollweulih (1\)<)4) L82 CLR 272 a{ 361-3f12.
(250) Se~ iljmi""ll'ide lVew., {'rl' 1.1<1 \' Will.l 0<)<)2) 177 CLR L at 43. per g,-.,nnan 1:
OlJiciof R",.orJ of rhe DelWIn f!( Ihe AII.<lmlmioll Feder"f Comenliml
(M~lboume), )j FebnlUl)' Isn. vol IV_ pp fl64-691. H,mi,on Moore, fhe
Co".-.Imil;o!l or the Cmnmo"welllih or Au."r"lia. 2nd cd (l9LO). pp 614-61';: Ll
Nauze. Tile Mokhl!: (1/ Ihe AII.l'lralian C""",illll;"1! (1972), P 227.
(251) See. ego ,s 41, 51(xxiiiAJ, 51(xxxi), 80. 116. 117: cf Re Trauy: F.x ['fir'" Ryall
on<)) 166 CLR SIR at 5RO. per J)e;lne.l.
62 HIGH COURT ll~96-1997

HCOFA contention is dependent upon acceptance of the vicw that thl: removal

-
19%-1997

KRllGER
anu detention of Aboriginal children pursuant to the powers confcm::u
hy the 1918 Ordinance were of a penal character and hence conslilull:d
judicial rather than executive functions. II IS by no means apparent that
THE
O>MMO';.
this view can be sustained. However much one may with hindsight
WFAl.T" debate the appropriateness of the actions authorised hy the 1918
Ordinance, those actions may legitimately he seen as non-punI-
Daw,,,") tive (252). The Chief Protector (and then the Director) was the legal
guardian of Aboriginals and that position, although its prCC1Sl: scope
was uncertain, clearly imposl:u an ohligation 10 act in the interests of
the Ahoriginal community but did not involve the performance of
judicial functions. No relevant decision could legitimately be taken
under the 1918 Ordinance without regard to the interests of
Aboriginals involved and those of the wider Ahoriginal population. No
douht it may be said with justification that the events in question did
not promote the welfare of Aboriginals, but that does not mean that the
decisions made and the actions takcn wcrc of a judicial rather than an
executive character.
However, this aspect of the plaintiffs' claim must fail even
assuming that which is not apparent, namely, that those dccisions or
actions werc of a judicial rather than an cxccutive character.
Chapter ITT of the Constitution docs. of course. require the separation
of the judicial power of the Commonwealth from its executive and
legislative functions (253). The judicial power of the Commonwealth
may only he exercised by federal courts constituted in aeeordancc with
the requirements of Ch ITT and State eourts which arc invested with
federal Jurisdiction. Federal courts may only perform Judicial functions
and such other functions as are ancillary to the exercise of judICial
power, But the judicial power exercised in the territories is not the
judicial power of the Commonwealth within thc meaning of Ch JJJ.
Courts created under s 122 are not federal courts nor do they exercise
federal jurisdiction. They are not required to bc constituted In
accordance with eh III and, since it is from the terms of Ch UI and the
position which it occupies in the constitutional structure that the
requirement of a separation of powers flows, it follows that that
doctrine has no application in the territories (254). The consequence is
that, even if the decisions or actions taken undcr the 1918 Ordinance
were of a judicial rather than an executive character, no requirement of
the Constitution would have been infringed.

(252) See Chu !OIfIiX Urn ,. Mini,'la/or Jmmil)r<llloti (t992) 176 ClR I at 28.
(253) See R " Kirb\': Ex parte !Joilerm<lker.< SodeN o/AII,'lrall<l (l956) 94 ClR 254.
(254) See Porler v The King: Exp,me Yet on6) 37 Cll{ 432: 51'1<111\' Humes (t965)
114 ClR 226: C<!pilal TV & Appliance., Ply Ltd '" Falwnu It971} 125 ClR 591.
Kable \' Direcw,- 0" Public Prose,,,ri"'ls fNSW) (1996) Ill9 ClR 51
190 CLR I] OF AUSTRALIA 63

Legal equality Heo!'A

19%1997
The plaintiffs contend that by implication the Constitution guaran-
tees legal equality before and under the law. There is reason to think KRU;ER

that such a guarantee, if it existed, would not prevail against the

T"
legislative power conferred by s 122, but it is convenient to proceed COMM""
directly to the question whether any such implication can he made. WEALTH

The separation of judicial power from the OIher powers of

government precludes the legislature from investing a court created hy
or under Ch III of the Constitution with non-judicial powers that are
not ancillary but arc directed to some non-judicial purpose. A Ch 111
court cannot be made to perform a function which is of a non-judicial
nature or is required to be performed in a non-judicial manner.
Chapter III may. perhaps, he regarded in this way as affording a
measure of due process, but it is due process of a procedural rather
than substantive nature. As was pOlllted out in Leeth v The
Commonwealth, (255) "to speak of judicial power III this context is to
speak of the function of a court rather than the law which a court is to
apply". However, for the reasons which I have already given, the
plaintiffs are unable to resort to the separation of powers so far as the
territories arc concerned amI in any event their argument goes much
funher than the rel/uirements of eh III in asserting a guarantee of
equality he fore and under the law.
The plaintiffs encounter difficulty at the outset by reason of the
decision of this Coun in Leeth. In that case, a majority (Mason CJ.
Brennan J, McHugh J and myself) held that a law of the
Commonwealth which did not operate unifonnly throughout the
Commonwealth was not in breach of any constitutional requirement.
Deane and Toohey JJ, and Gaudron J in a scparatc Judgment, held the
law to he invalid hut they were in a millority III so doing.
Nevertheless, the plaintiffs base their argument upon the line of
reasoning adopted by Deane and Toohey JJ in their joint judgment.
It is true that Deane and Toohey JJ found a doctrine of legal
equality in the Constitution, but the reasoning which led to that
conclusion did not commend itself to other members of the Court nor,
with the greatest of respect, does it no\\' commend itself to me. An
analogy for the doctrine of equality was, it was said, to be discerned in
the implied prohibition against Commonwealth legislation which
discriminates against the States or subjects them or their
instrumentnlities to special burdens or disabilities. It would be
surprising, it was suggested, if the Constitution "embodied a genera]
principle which protected the States and their instrumentalities from
being singled out by Commonwealth laws for discriminatory treatment
hut provided no similar protection of the people who constitute the

(255) (t992) 174 CLR 455 at 469

64 HIGH COURT [1996-1997

He"F A Commonwealth and the States" (256). With respect. I do not find that

-
19961')<)7

KRl'(;ER
situation surprising at all. The limitation upon the powers of the
Commonwealth Parliament which prevent it from discriminating
against the States is derived from different considerations entirely.
THE
COMMON-
which were articulated by Dixon J in Mdboume Corpora/ion j} The
WHLTH Commonwealth (257) when he said:
"The foundation of the Constitution is the conception of a central
government and Q number of State governments separately
organised. The Constitution predicates their continued existence as
independent entities,"
Thai pnnciph:: docs nol spring from any notion of equality. Moreover
the Constitution is in many respects inconsistent with a doctrine of
legal equality.
Section 51 (xxvi), as Deane] recogmsed In the Tasmanian Dam
Case (258), "rcmains a general power to pass laws discriminating
against or benefiting the people of any race". Similarly, s 51(xixj
enables the Commonwealth Parliament to make laws which discrimi-
nate in favour of or against aliens. Discrimination in rdation to the
qualification to voLe in federal ekcLions is clearly envisageu hy th!.:
Constitution (see ss 25, 30) and equality of voting power is not
guaranteed (259). And until 1967 (which is after the last alleged act of
detention ended), ss 51(xxvi) and 127 excluded Aboriginals for
specifieu purposcs. It is unm:cessary to proviue an exhaustive hst of
those respects in \vhich the Constitution ducs not support th!.: suggested
doctrine of equality, for Deane and Toohey JJ recogniseu in Leeth that
"the nature of the particular grant of legislative power may be such as
to rehut the assllTnption that such discrimination was un<lutholised by
the relevant provision of the Constitution" (2(0) or may need to he
"auJusted 10 the extent necessary to accommodate discriminatory
treatment which other provisions of the Constitution cleady contem-
plate" (261). To recognise as much is surdy to undermine any basis
for asserting that the Constitution assumes a doctrine of equality.
Not only that. but where the Constitution requires equality it docs
not kave it to implication. It makes provision for it hy prohihiting
discrimination, prefcn::nce or lack of uniformity in specific instanc-os.
For example, the power of thc Commonwealth Parliament to make
laws with respect to taxation conferred by s SIOi) mmt not be
exercised so as to uiscriminate between States or parts of Stales,

(256) l.eelh (1992) 174 CLR 455 at 4~4

(2571 (1947J 74 CLR 31 mn
(25~) ihe Commml\,"""lt!, Ta,,,,,,,,,I,, (the To.PI/<IIlial) Pall! e"se) 11()~.'1 15~ CLR 1
at 27.'. Sec also K"",,,,na ,. Ilj<'ike-Pf/n'sm II Y~2) 151 CLR 16g :u 1~6. 20Y,
244,261
(2-';9) Sec /l1<(;i,,/.I') l'ies/em Au.w"li" (19%) IR6 CLR 140
(260) Lee/II (I <)'il) 174 CI J{ 4<;5 ell 4~9
(261) (.nIh (1992) 174 CLR 455 Jl 4')0,
190 CLR lJ OF AUSTRALIA 65
Section RR provides for uniform customs duties and s 51(iii) provides He OF A
j 996-1997
for uniform bounties. Section 92, in requiring Lrade, commerce and
intercourse amung the States to bc ahsolutely free, prohibits KRUGER
discrimination of a protectionist kind, Section 99 forhids the
THE
Parliament to give preference to one State or any part thereof over C()MM(l~
another State or any part thereof by any law or regulaLion of trade. WEALTH

commerce or revenue. And s 117 provides that a subject of the Queen,

D,w"",J
resident in any Stnte, shnll not be subject in any other State to any
disability or discrimination which would not be equally applicahle to
him if he were a suhject of the Queen residenL in such other State. In
Lee/h, Deane and Toohey JJ said Ihat the existence of these specific
provisions "which rctlect thc doctrine of legal equality serves to makc
manifest rather than undermine the status of LhaL doctnne as an
underlying principle of thc ConsLiLution as a whole" (262). That
statement not only denies the accepted canon of construction expressed
in the maXlm exprcssJ() umus, excluslO alterius; it turns it on its head.
And as one commentator hns observed (263);
"If various provisions aimed aL preventing discrimination.
preference and lack of unifomlity are merely reOections of a general
pnnClple of equality, iL can hc SImilarly reasoned that the specific
powers given to the Commonwcalth Parliament are merely
examples of a general principle. mentioned from time to time by
delegates, that the Commonwealth Parliament was to be given
power ovcr all suhjcCLS which could noL hc as c1Tective1y dealt \vith
by the States."
The inappropriateness of the expressio un ius maxim arose, III their
Honours' VIew, from what was said to be the "ordinary npprom;h of
the Constitution not to spell out the fundamental common law
principles upon which it is structured" (264) because the general
approach of the framers of the ConstituLion was to incorporate
underlying doctrines or principles by implication" (265). Wilh respect,
that is not the cnse. Gunrantees of equality before the law and due
process were specifically rejected, not because they were already
Implicit and therefore unnecessary, hut because they were not wanted.
Indeed, if there was a need to make specific provision for equality
where (hat was intended, it would suggest that there is no principle of
equality underlying the Constitution and that were such a doctrine
intended, specific provision would have been made for it. But 10 be
fair to Deane and Toohey JJ, they did noL, I think, base a doctrine of

(262) Leeth (1992) 174 CLR 455 at 487.

(263) Zincs. "A Judicially Created Bill of Rights~' SyJney WI<' Rel'iew, vol 16 (1994)
166.arp 182.
(264) '.eetil (1992) 174 CLR -'155 at 487.
(265) Leetlt (992) L74CLR 455 a1484.
66 HIGH COURT [ 19961997

HC"FA equality principally upon the existl:nl:e of these specific provisions.

-
1991'>-1997

K""C,ER
They referred to considerations oj" a more fundamental kind.
The ultimate source of the doctrine was said to iiI: in thl: common
law. Thus Deane and Toohl:Y II said (266):
T..
C"_"Me'N- "The common law may discriminatl: hetween Individuals by
WEALTH
refercnce to relevant differences and distinctions, such as infancy or
incapacity, or by reason of conduct which it proscribes, punishes or
penalises. It may have failed adequately to acknowledge or address
the fact thaL In some circumstances, theoretical equality under the
law sustains rather than alleVIates the practical reality of social and
economic inequality. Nonetheless, and putting to one side the
position of the Crown and some past anomalies, notably, discrimi-
natory treatment of women, the essential or underlying theoretical
equality of all persons under the law and before the courts is and
has been a fundamental and gl:m:rally beneficial doctrine of the
common law and a basil: prescript of the administration of justil:e
undl:r our system of government."
Howl:vcr, whilst the rule of law requilTs [hI: law to he applied to all
without referenl:e to rank or status, the plain mailer of fan is that lhl:
common law has never required as a nl:cessary outcome the equal, or
non-discriminatory, operation of laws. It lS not possible, in my view,
to dismiss the discriminatory treatment of women at common law or
such matters as the attainder of felons (207) as "past anomalies". To
do so is to tn::at the doctrines of the common law with selectivity.
Moreover, the supremacy of parIJament. which is itself a principiI: of
the common law (26R), nl:cessarily leaves the common law suhject 10
alteration without reference to notions of equality_ The common law'
thus provides no foundation for a doctrine of equality, at all events
substantive equality as opposed to the kind of procedural equality
envisaged by the rule of law.
But even if a doctnnc of substantive equality were dIscernible in the
common law, it would not appear that it was a doctrine which was
adopted in the drafting of the Constitution. Apart from anything else, it
is clear that the Commonwealth Parliament was intended to have the
capacity, m the exercise of its legislative powers. to alter the common
law. If it were not so, the scope of those powers \vould he less than the
scope of the concurrent powels of the States. There is no reason to
suppose thnt such a capacity would not extend 10 a common law
doctrine of equality if such a doctrine were to exist. Nevertheless, in

(266) Leellt (1<)<)2) 174 eLI{ ..55 ~I 4R'i-4R6

(267) SC~ DUgilll \. Mirmr Newspapers Ltd (1978) 142 CLR 'i8~: se~ al,o Winterton,
Th~ Separalion ot' JlIdicial Power ~s an IlIlpli,'d Bill ot' Right,' in Lindclll~d).
FUllrl'f IJiJ'p,ri"ns in ,1u.\1mlia" C(lIlsr;r"riOl",'/~I\\ (1994) j 85. at p 21.15
(268) See Di;wn. '-The Common Law a<, an UllimJle Constilutionat foundation
Jesrill/< Pi/me (196';) 2m, at p 2116: Kuhle \' Diraror or I'ublic Pro.,eclI/ir"n
(,VSWI (1<)96) j 89 eLI< 51 ~t 76-7i
190CLRIJ OF AUSTRALIA 67

Leeth Deane and Toohey JJ expressed the vicw that such a doctrine He "1' 1\
1996-1997
hau heen adopted in the Constitution by necessary implication by ~

rcason of its conceptual basis and because it is "implicit in the K~l'''E~

Constitution's separation or Judicial power from legislative and ,
THE
c:u::cutivc powers anu the vesting of judicial power In designated CO."MON-
'courts'" (269). WEALTH

In referring to the conceptual hasis of the Constitution, Deane and

Toohey JJ had in mind the preamble and covering cl 3 of the D,,,,,,"J
Commonwealth of Australia Constitution Act which refer to the
agreement of the people of the various colonies to unite in a Federal
Commo!1wcalLh. Their Honours took the view (270) that "[i]rnplicit in
that free agreement was Ihe notion of the inherent equality of the
people as the parties to the compact". It may he ohscrved that a
degree of equality was lacking in the free agreement of which their
Honours spoke, in that the referendum expressing that agreement
excluded most women and many Aboriginals. But the important thing
is that the Constitution to which the people agreed plamly envisages
inequality in the operation of laws made under it. Moreover, those who
framed the Constitution delihcratcly chose not to include a provision
guaranteeing due process or the equal protection of the laws and it was
with those omissions that the people agreed to the Constitution. It IS
not possible, in my view, 10 read into the fact of agreement any
implications whieh do not appear from the document upon which
agreement was reached. Not only docs a doctnne of equality in the
operation of la\vs made under the Constitution not appear from thc
Constitution, hut the very hasls upon which it was drafted was that
matters such as that were hetter left to parliament and the democratic
process.
The view taken of Ch I11 of the Constitution by Deane and
Toohey 11 was as follows (271):
"Thus, in Ch Ill's exclusive vesting of the judicial power of the
Commonwealth in the 'couns' which it designates, there is implicit
a requirement that those 'courts' exhihit the essential attrihutes of a
court :md observe, in the exercise of that judicial power, the
essential requirements of the curial process, including the obligation
to act judicially. At the hean of that obligation is the duty of a court
to extend to the parties before it equal justice, that is to say, to treat
them Jairly and impartially as equals before the law and 10 refrain
from discrimination on irn::1cvant or irrational grounds."
As I read that passage, it docs not draw any distinction between
procedural equality and substantive equality, that is to say, hetween
procedural equality and the equality of laws in their opemtioll. As I

(269) Lcerli (1992) 174 CLR 455 ~t 4E6

(270) Lee/Ii (19n) 174 CLR 455 al -1U,
(271.1 Leelh (19921 174 CLR 45.~ :it 4S7
68 HIGH COURT [1996-1997

IlCoFA have said, it is possible to regnrd the separation of judicial power from

-
19%1997

KRllCFR
the: other powers of government as affording a measure of due process
hUl it IS due process of an essentially procedural rather than a
substantive kind. What is clear IS that ell III says nothing, either
TilE
COMM()~
expressly or by implication, requiring equality in the operation of laws
WMLTII which courts created by or under that Chapter must administer. Those
courts have an obligation to adminIster justice according to law. No
D.1"'oo J doubt that duty is to do justice according to valid Jaw, but eh III
contains no warrant for regarding a law as invalid hecause the
substantive rights which it confers Of the substantive obligations which
it imposes are conferred or imposed in an unequal fashion. The
passage which I have reproduced appears to me to contemplate a
guarantee of what American jurisprudence calls substantive due
process, but that conception is not to he found in Ch III or elsewhere
in the Australian Constitution.
For these reasons, I would respectfully reject the conelusion reached
by Deane and Toohey JJ that there is a doctrine of equality to be found
by implication in the Constitution. For the same reasons I would reject
the plaintiffs' elaim based upon that doctrine, I would atlinn the
proposition contained in the judgment of Mason CJ, McHugh J and
myself in Leeth (272) that there is no general requirement contained in
the Constitution that Commonwealth laws should have a uniform
operation throughout the Commonwealth.
Freedon! oj' n!ovement and association
In attacking the validity of the 1918 Ordinance, the plaintiffs rely
upon an implied constitutional right to, or guarantee of, freedom of
movement and association for political, cultural and familial purposes
amI say that, in authorising the removal and detention of Aboriginals,
the 1915 Ordinance denied that right or offended against that
guarantee.
To the extent that the right or guarantee which is asserted is founded
upon an implied right to freedom of communication for political
purposes, it is now established (273) that such protection as the
Constitution affords to freedom of communication is relevantly
derived from the requirement that members of the Commonwealth
Parliament be directly chosen by the people at pef]odic elections (274).
TIle choice envisaged in each instance is a true or genuine choice with
"an opportunity to gain an appreciation of the available alteroa-

(272) (1992) 174 CLR 4.55 at 467.

(273) See wll/:e )' AI/simI/WI Broadca.<riJIN Corporation (19<)7) UN CLR 520,
(274) See ss 1.4, 12, 24. 28. 32. The amendment to s t2l\ of th~ Constitution to add
Territory electors did not occur until 1977, ,ec Con.\1ituliml Ailer(1/i,,,,
iR,,!eremlllllls) 1977,
 190 CLR II OF AUSTRALIA 69

lives" (275). That requires freedom of communication ahout those HCOF A

mailers which may properly influence the outcome of those clcdioos.
Laws which purport to inhibit that freedom of communication will be
inconsistent with the requirements of the Constitution and invalid. If
-,
19%-1997

KRU,ER

THE
there is an implication it is not of any "right" and is of a negative
C"".\tON-
kind. It precludes laws which would Inhibit the required freedom of "'EALTf!

cOJOIOunlcation. The freedom owes its existence to the absence of laws

Daw,,,n J
curtailing it and it is reinforced by the restriction upon legislative
power.
The freedom of communication protected by the Constitution
relevantly arises from the system of representative government for
which the Constitution specifically provides. In Australian Capital
Television Pty Ltd v The Commonwealth (276) McHugh J observed:
"There is nothing in s 122 or anywhere else in the Constitution
which suggests that laws made hy the Commonwealth for the
government of a Territory are subject to prohibitions or limitations
arising from the concepts of n::presentative government. responsible
government or freedom of communication."
I n::spectfully agree with that observation and would extend its
application to such other rights to freedom of movement and
association as may be suggested as constitutional requirements. I have
in mind, in particular, the suggestion made by Griffith CJ and Barton J
in R v Smithers; Ex parte Benson (277) that there IS a right Df acccss to
thc scat of government (278). Of course, s 92 of the Constitution
restricts its guarantee of freedom of intercourse to intercourse among
the States (279). I also have in mind the suggestion of Gaudron J in
Australian Capital Television Pty Ltd v The Commoflwealth (2RO) that
"[t]he notion of a free society governed in accordance with the
principles of representative democracy may cntail frcedom of
movement land] freedom of association". In any event. that
suggestion appears to be based on the nature of our society, which to
my mind cannot legitimately hc used as a source of constitutional
Implications (281).
No system of government, elected or otherwise, is prescribed for the

(275) S~~ AU.<I""liwl Cup/lui Television Pry Lid ,. Tile CO!!J!!JOIn,'e"llh (1992) 177 CLR
liXJ m 1~7; umge V !luslmli"" BmadcUSli1JK C"'pori1/illll (1997) liN eLR 520 Jt
560
(276) (1992) [77 eLR 106 m 246.
(277) (1912) [6 CLR 99 a( to~. 1O<J. l](); Cwdi!li: \' Tire Comm(}/",e(llrll (1994) 182
CLR 272 J( 12~. per BrcnllJll J
(~7H) See olso "i""eo- -'1"""".,' Ply Lid v H01<'hkiss (195S) 101 eLK 5~1i or 550, per
Dixon CJ; Theol'''wWUS .' Herald & Weekly Jime' /HI (1')<)<1-) 1~2 eLR 104
at 166, 169. pn Ikone],
(27\.1) S~e Pioneer E.,pres" Ply Ltd)' HOII'IIk/" (19.'i~) tol CIJ{ 5~6,
(280) (19')2) 177 CLR 106 m 212
(2Hl) See Theol'lrwlfIu., \' Herald & Weeki" Fi,m',< Lid (19\.14) 182 CLR 104 a( 193. Se~
olso Lmlfie l' .1u-"lrulia" Bmad"aslinr.; Co"pora/iol! (I '!'!7) I ~') CLR 520 or 567.
70 HIGH COURT [1996-1997

H COF . \ territories. Sovereign legislative power is conferred hy s 122 upon the

1'0196-1997
Commonwealth Parliament to make laws for the government of the
territories but there need be no representation of a Territory in either
House of the Parliament, nor IS there any reqUIrement that institutions
nil' of n::prcscntutivc government exist within the territories. There is
C"M_'"J~
WE.'LTH nothing to be found. in the Constitution which would support an
implied constitutional right 10, or guarantee of. freedom of movement
and association for political or other purposes that might limit the
powers conferred by s 122. This aspect of the plaintiffs' claim must
fail.
Fundamental rights and genocide
]n Ihis part of their claim the plaintiffs invoke international Jaw and,
in particular, the Convention on the Prevention and Pumshment of the
Crime of Genocide (the Genocide Convention). The Genocide
Convention was ratified by Australia on 8 July 1949 and entered into
force on 12 January 1951. TIle 1918 Ordinance therefore pre-datcs it
hy more than three decades. The Genocide Convention Act 1949 (eth)
gave parliamentary approval 10 the ratification by Australia of the
Genocide Convention, but there is no legislation unplementing the
Genocide Convention in this country.
The definition of genocide" in the Genocide Convention is as
follows:
"In the present Convention, genocide means any of the following
aCls committed with mtent to destroy, in whole or in part. a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(h) Causing serious houily or mental harm to members of the
group:
(c) Deliberately innicting on the gmup conditions of life
calculatcd to hring ahout its phYSICal destruction in whole or in
part;
(d) Imposing measures intended to prevent births within the
group:
(e) Porcihly trans felTing children of the group to another
group.
The first thing that may he said is there IS nothing in the 1918
Ordinance, even if the acts authorised hy it otherwise fell within the
definition of genocide, whieh authorises acts comrnillcd with intent to
destroy in whole or in pm1 any Ahoriginal group. On the contrary, as
has already been observed, the powers confelTed hy thl.: 1918
Ordinance were required to he exercised in the bl.:st lllterests of the
Aboriginals concerned or of the Ahoriginal population generally. The
acts authorisl.:J uo not, therefore, fall within the definition of genocide
contained in the Genocide Convention.
In any event, the Convention has not at any time formed part of
Australian domestic law. As was recently pointed out in Minister fliT
190CLRlj OF AUSTRALIA 71

Immigrarion and Ethnic A'/jairs v Teoh (282), it is well established that He OF A

1996-1997
the provisions of an international treaty to which Australia is a party
do not form part of Australian law unless those provisions have heen KR'--'GF~

validly incorporated into our municipal law by statute. Where such

rHE
provisions have not been incorporated they cannot operate as a direct C()M"().~
source of individual rights and obligations. However, bccause of a WEALTH

presumption that the legislature intends to give erfed to Australia's

obligations under intcrnational law, where a statute or subordinate
legislation is ambiguous it should be construed in accordance with
those obligations, particularly whcre they arc undertaken in a treaty 10
which Australia is a party (283). Such a construction is not, however,
required by the presumption where the obligations arise only under a
trcaty and the legislation in question was enacted beforc the treaty, as
is the situation in the present C<lse.
On the other hand, there is another principle that legislation is to he
interpreted and applied, so far as its hlllguagc admits, in accordance
with established rules of intcrnational law (284). It was suggested in
Teoh (285) that perhaps the two principles should be merged so as to
require courts to ravour a construction, to the extent that the language
of the legislation permits, that is in conformity and not in conflict with
Australia's international obligations. The rule as so stated would still
admit of an exception, logiCally necessary, where the relevant
ohligations are under a treaty which had not been entered into at the
time the legislation came into force.
Presumably for this reason, the plaintirfs rely principally upon a pre-
cxisting rule or international law involving a prohibition upon
genocide, rather than upon the provIsIOns of the treaty. Even assuming
the existence of such a rule, it is to my mind not possible to conecive
of any acceptable definition of genocide which would emhrace the
actions authorised by the 1918 Ordinance, given that they were
required to be performed in the best intercsts or the Aboriginals
concerned o[ of the Aboriginal population. But more imponantly, the
applicable principle amounts to no more than a canon of construction
and reading the relevant provisions of the 1918 Ordinance in a manner
which is consistent with a rule of international law prohibiting
genocidc would yield no dirrerent result from reading those provisions,
as Fullagar J did in Waters v The Commonwealth (286), in their
particular contcxt. It certainly would not lIlvalidate those provisions of
the 1918 Ordinance which purportedly authorised the acts of which the
plaintilTs complain.

(2821 (1995) 183 CLR 273 at 286-287, 298, 304, 315,

(283) See Mllli"ler .tilr 11I1I1II~r<lII"'1 alld tlhnie Affail'-' l' Tcol! (1995) 183 CLR 273
at 287, 315,
(284) See P(!1I1~.I" l' Th~ C(!mm(lm"~{lllh (194.~) 70 CLR 60 at 61\-69_ 77, 80-81
(21\5) (1995) 18., CLR 273 at 287-288.
(21\6) (['15l) 1\2 eLI<. 188.
72 HIGH COURT [1996-1997

He or !I But the plaintiffs say that it is beyond the constitutional power of

1~%-1<)97
the CommonwealLh Parliament to authorise acts of genocide, in which
KRUGER they include acts of "cultural genocide", and hence those parts of the
1918 Ordinance which authorise such acts are beyond power and
THE
O>MMO".
invalid. As I have said, in my view nothing which appears in the 1918
"'L\lTH Ordinance confers authority to commit acts of genocide within the
meaning of Ihe Genocide Convention. The Genocide Convention is not
concerned with cultural genocide, references to cultural genocide
being expressly deleted from it in the course of its being drafted (287).
bUI whatever the fonn of genocide which the plaintiffs assert was
authorised by the 1918 Ordinance. it cannot hc said that the provisions
or the 1918 Ordinance were beyond the sovereign power of the
Parliament to enact laws under s 122 for the government of the
territories.
The plaintiffs' submission amounts to an argument that there are
some rights at common law which are so fundamental that it is beyond
the sovereign power of parliament 10 destroy them. It is an argument
which would seek to avail itself of the reservation expressed by this
Court in Union Steamship Co of Australia Pty Lid v King (288) when.
having recognised that the words "for the peace, order and good
government" contained in a grant of legislative power arc not words
of limitatioll, the Court said:
"They did not confer on the courts of a colony. just as they do not
confer on the courts of a State, jurisdiction to strike down legislation
on the ground that, in the opinion of a court, the legislation docs not
promote or seeure the peace, order and good government of the
colony, Just as the courts of the United Kingdom cannot invalidate
laws made by the Parliament of the United Kingdom on the ground
that they do not secure the welfare and the public interest, so the
exercise of its legislative power by the Parliament of New South
Wales is not susceptible to judicial review on that score. Whether
the exercise of that legislative power is subject to some restraints by
reference to rights deeply rooted in our democratic system of
government and the common law (see Drivers v Road Car-
riers (289); Fra.lTr v State Sen'ices Commission (2')0): Tarlor v
New Zealand Poultry Board (291 ), a VIew which Lord Reid firmly
rejected in Pichn v British Raihl'a)'s Board (292), is another
question which we need not explore."

(2~7) See KUllz. "The United Nations ConvelHion on G~llocid~" AmrricclIJ .lo"m"! "t
",Iema/iolla! Lm>. vol 43 (1949) 738. at p 742. Ca.",,;;e, !llIlI"m Righi,' ill <i
Ch"ng'''f-: World (1990). P 7o.
(2~H) (ISlHHl 166 CLR 1 at 10.
(2~<) [1982) 1 :,</.L!{ 374 ~t 390
(290) [19R4] I :,<ZLR 116 at 121
(291) L19~4J I :,<ZLR 3')4 ~t 398,
(292) 119741 AC 765 ~t 782,
190CLR I] OF AUSTRALIA 73

That queslion was, however, raised in Kuhle v Director of Public He Of A

Prosecutions (NSWj (293), and lhere I expressed the view that the
doctnne of parliamentary supremacy is a dOdrine as deeply rooted as
any in the common law and that it is of its essence that a court. once it
-,
19%1997

K.L'(;ER

THE
has asccrtaim:d the true scope and effect of valid legislation. should CO.\1"'ON-
give unquestiom::d effect to it accordingly (294), I need not here repeat WeALTH

the reasoning or refer to the aulhonlies which support that view.

Tuuhc-yJ
The power of the Commonwealth Parliament under s 122 of the
Constitution is, if anything, wider than its power 10 make laws for the
peace. order, and good government of the Commonwealth under s 51.
That power is, of course. more restricted in geographical terms, bUI it
is. unlike the parliament's power under s 51, unlimited in terms of
subject mailer. In that sense, the legislative power of the parliament to
make laws for the government of the territones is sovereign and.
subject to the possibility of any specific limitation to be found
elsewhere in the Constitution, there is nothing which places rights of
any descnplion heyond its reach. Accordingly, this aspect of the
plaintiffs' claim must faiL
CO/lclusion
For all of these reasons, I would answer the first question in each
case in the negative. Since my conclusion is that the Constitution docs
not afford the rights upon which the plaintiffs base their claims, it IS
unnecessary to answer the second question. which asks whether a
hn::ach of any such rights would give rise to a right of action against
lhe Commonwealth sounding III damages. It is unnecessary to answer
the other questions.

TOOHEY 1. In Ihese actions each plaintiff claims against the

Commonwealth declaratory rehef and damages hy reason of his or her
removal from mother and family while a child and detention in a
""reserve or Aboriginal institution" (295). The mailers came before the
Coun by way of queslions reserved, pursuant to 0 35, r 2 of the High
Coun Rules. Those questions appear in other Judgments and it is
unnecessary to set them out. In the Commonwealth's submission, the
questions arise solely OIl the pleadings and it is both inappropriate and
impennissiblc, in the ubsence of the agreement of the parties. 10 rely
on asscrtions of fact or 10 invite the Court to makc or proceed on
assumptions or inferences of fact. This approach lo the task the Court
is required to perform is undoubtedly correct. The Court's role is
accordingly circumscrihed. It has the consequence that some uf lhose
queslions may remain unanswercd unlil factual issues have heen

1293) (1996) 189 eLI{ 51.

(294) KuVle (1996) 189 el.I{ 51 at 76-77.
(295) In Ihe Kruger aClioll lh~ ,ix(h plaintiff alkg~s the removJJ and ddClllioll of her
child
74 HIGH COURT [1996-1997

He OF A resolved. This IS not uncommonly the fatc of the procedure that has
1996-1997
~
been adopted.
KRl'(]ER
, Aboriginals Ordinance
THE To understand the enactment of the Aboriginals Ordinance 1918
ON''''',- (NT) (the Ordinance), it must be remembered that, by the Northern
WHLTH
Territor\' Acceptance Act 14]{) (Clh) (the Acceptance Act), the
Commonwealth accepted the Northern Territory from South Australia
'"as a Territory under the authority of the Commonwealth, by the
name of the Northern TcrrilrJry of Australia" (s 6(1)). The Northern
Terri/ory (Administration) Act 1910 COh) (the Administration Act)
was pllssed, tlccording to Its long title, to provide for the Provisional
Government 0(" the NOrlhern Territory". 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 (296). The
On..linance was made pursuant to that authority_ Section fJ7 of the
Ordinance empO\vered the Administrmor (appointed by the Governor-
General under s 4 of the Administration Act) to make regulations for
its can-ying out. The Ordinance was repealed on 13 May 1957 (297).
The plaintiffs' principal attack was on the validity of ss 6, 7 ami 16,
together with s 67. They also challenged the Administration Act and
the Acceptance Act m so far as those Acts authof]sed those sections of
the Ordinance. However, they did not challenge any particular exercise
of power under the Ordinance if the Ordinance was held to be valid.
Section 6( I) of the Ordinance read.
'The Chief Protector shall be entitled at any time 10 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 10 do so, and for that purpose may enter any
premises where the Aboriginal or half-caste is or is supposed to be,
and may lake him into his custody."
Each plaintiff pleads that he or she "is and was, at all material limes.
an 'Aboriginal' and/or a 'half-casle' within the meaning of the
definition of those tenlls" in the Ordinance.
Section 7 appointed the Chief Protector "the legal guardian of every
Aboriginal and of every half-caste child, notwithstanding that the child
hllS a parent or other relative living". In 1953 s 7 was repealed and
replaced with a provision which read simply:

(296) s DII). By rea,on of the A<'Is Illierprel"liml An 1901 (Cth). s 17(0 Jnd (g). the
n::fen::nce 10 the Govemor-GencrJI was a refen:nce 10 th~1 pcn;on aCling with [he
advice of lhe Federal Executive CounciL
(2Y7) Weltiire Ordi/"ma 195., (NT). s 4.
190CLR II OF AUSTRALIA 75

"The Director is the legal guardian of all Aboriginals." (298) He OF A

I ~')6-t~~7
Section 16(1) empowered the Chief Protector to
. 'cause any Ahoriginal or half-caste to be kept within the boundaries ,
KRlCGER

THE
of any reserve or Ahoriginal institution or to he removed to and kept
CO"-'1{lN-
within the boundaries of any reserve or Aboriginal institution, or to WHLTH
be removed from one reserve or Ahoriginal institution to another
reserve or Aboriginal institution, amI to he kepltherem".
By force of suh-s (2), any Ahoriginal or half-caste who refused or
resisted removal or who refused to remain in or attempted to depan
from a reserve or institution was guilty of an offence. The operation of
s 16 was qualified by sub-s (3) wherehy the section was expressed not
to apply to any such person
"(a) \vho is lawfully employed by any person; or
(h) who is the holder of a permit to be absent from the reserve or
Aboriginal institution in question; or
(c) who is a female lawfully married to and residing with a
hushand who is suhstantially of European origin or descent; or
(dl for whom, in the opinion of the Chief Protector, satisfactory
provision is otherwise made"'
Two delinitiol1s should he noted, particularly having regan! 10
s [6 (299). "Reserve" was delined, following an amelllJment to the
OnJinanee in 1939, to mean
"any lands reserved for the use and henefit of the Aboriginal
native inhahitants".
"Ahonglnallnstitution" was defined to mean
"any mission station, refornUltory. orphanage. school. home or other
institution for the benefit. care or protection of the Aboriginal or
half-caste inhahitants of the Northern TefTltory, declared hy the
Administrator to be an Aborigina[ institution for the purposes of lhis
Ordinance' ,
The significance of these definitions is for the Commonwealth's
argument that reserves and institutions were estabhshed for the benefit.
care or protection of Ahorigmals (JOO). Hence, it was suhmitted, the
sections under challenge should be seen as having a welfare and
protection purpose. .It followed that the Ordinance should not be
treated as hnngmg ahout the "detention" of Ahorigmals III the sense

(29S) Aboriginal,I' Ordinance (/'i" 2) 19S3 C"olT). , 7. Although the Ordin~nee wa,
JITIended on J number of occJsion,. this is the only significrul1 amcndmcnt of
rekvance tu these proceeding<;.
C'i'i) The definition provision ",as s 3
(-'DO) Unless quoting: from the Ordinance or referring directly to it, term,. t ,p~ak of
.. Ahoriginals"
76 HIGH COURT [1996-1997

HCOF A that the term is generally understood. This view of the On.linancc IS

-
19961997

KRl.'C,ER
discussed later in these reasons.
'"egis/alive history
"
T.. The provenance of the legislation plays a part in identifying its
C()~lM""
WEALTH
object. The Ordinance had been preceded by the Northern Territory
Aburi/?illa{s Act 1910 (SA), which was continued in force by the
Acceptance Act until its repeal hy the Ordinance. The 1910 Ac! was
expressed to be .. An Act to make Provision for the betLer Protection
and Control of the Aboriginal Inhabitants of the Northern Territory,
and for other purposes". It contained proVISHlnS similar to S5 7 and 16
of the Ordinance (301).
111e Solicitor-General for Western Australia suggested that the
Ordinann:: had its gcnesis in legislation from Weslcrn Australia, m
particular the Aborigines Act 1897 (WA). That Act was expressed LO
be "for the better Protection of the Aboriginal Race of Western
Australia". However it was the Aboril?ines Act 1905 (WA), it was
suhmitlcd, from which the Ordinance was derived. The 1905 Act was
cxpressed as "An Act to make provision for the better protection and
care of the Aboriginal inhabitants of Western Australia". Section 4 of
the 1905 Act set up an Aborigines Department, . 'charged with the
duty of promoting the welL1re of the aborigines". Section 8 appointed
the Chid Protector "the legal guardian of every Aboriginal and half-
caste child". Sections 12 and 13 established a power of removal to a
reserve, subject to exemptions in s 13 in terms which s I (j of the
Ordinance closely resembles. The regulation-making power was
similar in the two enactments. The power of n:moval contained In s 12
of the 1905 Act scerns to have been borrowed from s 9 of the
AlJorixinals Protection and Restriction of the Sale of Opium Act
1897 (Q).
Drummond J has pOInted out that it was the Report of the House of
Commons Select Committee on Aborigmal Rights (302) "which
recommended the appointment in Australia of protectors of Aborigi-
nes. invested with both coronial and magisterial powers, to cultivate
relations with the local tribes and to secure the maintenance and
protection of their rights" (303). The pOlnt of this legislative history is
that it lends force to the suhmission that the Ordinance was seen at the
time as serving a welfare purpose. While the means adopted to achieve
such a purpose would now he regarded as entirely unacceptable, there
is a question as to how far any assessment can be divorced from the
pcn;eptions of the time. And there is a Illore hasic question, 10 be
discussed later, whetl1er the tenns of the legislation went beyond what
was necessary 10 secure its purpose.

(30t) Sl'C ,S 9. t6 and 17 of the t\.l10 Act,

(302) 26June 1~37,
(3m) Wlk Peoples v Quamlaml (t9%) 63 FeR 450 at 4(,0
190 CLR II OF AUSTRALIA 77

In l'./amarjira to Raabe (304) the Court considered the provision of He OF A

[9%-1997
the Welfare OrdinuT/ce 1953 (NT) which empowered the Adminis-
trator to declare a person a ward in certain circumstances. \\-'hile the KRUGER
Welfare Ordinance was of general operation, the Court held that. with
THE
a few exceptions, the very large category of persons excluded from its
operation "must cover everybody but Aboriginals" (305). The Court
c"""",,-
WEAI.TH

spoke of the legislation as conferring a status which was substantially

the same as that conferred by the Ordinance and "almost confined in
its application to Aboriginals persons who might be regarded as
being as a class in such need [of special care and assIstance] and
the status given is protective in its nature" (306).
It must again he stressed that it is the validity of the Ordinance the
plaintiffs challenge and which is the hasis of their claim for damages,
not the exercise of power under an enactment acceptcd as valid. This
is in contrast to ""'atas v The Cummunwealth (307) which conccrned
an allcged ahusc of powcr hy the DirccLor under s 16 of the Ordinance.
In that regard Fullagar J said (08):
"[Tlhe courts must be alert to sec that, if that which is not expected
does happen and he docs mistake o[ abuse his power, the mistake or
ahuse does not go either undetected or unredressed.'
But in these proceedings it is not abuse of power upon which the
plaintiffs rely.
The challenge
The plaintiffs' challenge to the legislation involved, as a first step,
the suhmission lhat the Parliament could notconl"cr on another. in this
case the executive, the powcr to make laws which the Parliament itself
eould not validly enact. This is an uncontroversial proposition. The
second step was to identify why the Parliament could not itself validly
have enacted the legislation in question. Broadly speaking, the
ohstacles to direct enactment wcrc said to exisl by reason of a
constitutional prohibition against dctention without due process, the
existence of s 116 o!" the Constitution and various implications arising
from the Constitution, coupled with a general asserlion that the
legislation was not a law for the government of the Northern Territory
within s 122 of the Constitution.
In its defence to each action the Commonwealth pleaded that the
legislation under challenge in each case was a valid Illw for the
government of the Northern Territory and denied that the legislative
power conferred by s 122 was constrained by s 116 or by any of the
constitutional implications relied upon by the plaintiffs. By way of

(304) (195<)1 100 CLf{ 6&1

(05) ,\lamarji'" \' HI,,,b,, I J95<)1 l()() CLR liM al li67.
(06) ."'anwtjml (1959) 100 eLR 664 ~t 6(j'J-670
(07) (19'iliX2CLR I~~,
nOli} Willrt'.I(195l)g2CLR Iggal 194,
7' HIGH COURT [ 1996-1997
He OF A alternative defence the Commonwealth pleaded (09) that if the

-,
1996-1997

KRL'''ER
legislative power confcrred by s 122 is so restricted, the Ordinance
was not in hrl:HCh of s 116 or any such imphcation because It was
. 'cnacted and amended for the purpose of thl: protection and
['fIE
COM.'10N-
preservation of persons of the Aboriginal race" and was "cnpnble of
WMLTfi being reasonably considered to be or alternatively was appropriate and
adapted to the achievement of that purpose". Thl: Commonwealth
further argued that if the On..linance did not necessarily answer the
description in each defence, no final view could be expressed on these
matters without an inquiry into the standards and perceptions
prev<liling at the time of enactment of the Ordinance, not by reference
to current standards and perceptions. Such an mqUlry. it was said, was
not open at this stage of the proceedings.
It IS necessary to look now at the basic questions raised by the
questions n:servcd.
Seerion 122 of the ConsTilulion
Section 122 or the Australian Constitution empowers the Parliament
to "make laws for the government of any TelTitory . acquired by the
Commonwealth" The formula employed differs from that in s 51
which empowers thl.: Parliament to "make laws for the peace, order,
and good government of the Commonwl.:alth with respect to" the
mattns identified in the section. Nevertheless. "the power is no less
than the power which would have been conferred Ir thl.: 'peace, order
and good government' forrnula had hel.:n used" (310).
In Ber.l'ick Ltd v Gray (311) it was said tlml
'"all that need be shown 10 support an eXefCISI.: of thl.: power IS that
there should be a sufficient nexus or connl.:ction between the law
and the Territory".
The Commonwealth relied upon this statement and also upon the
earlier statement by Barwick CJ in Spratl I' Hermes (312) that the
power confcrrcd by s 122 "is not only plenary but is unlimited by
reference to subject matter".
The Commonwealth submitted that a sufficient connection exists
whcre a law opcrates upon persons or things within a TelTitory. On
this footing it argued that s 122 authorised the Ordinance. whether or
not it answered the description of welfare legislation. On the other
hand the plaintiffs contended that s 122 demands more than a law
having some general or remote connection with a Territory. The law

(309) Amended defence pm' 2':J(d) (Kmger): par 26(d) I Br~y)

(\ I0) Capital D"pliwlOTS p(" Ltd " IlI/,'lralill" G;"ilal Tanton' (, 9<)2) t 77 CLR 24~
at 271, per Brennrul, Deane and Toohey JJ
OIl) (1976) 133 CLR 603 ~t 607, p<:r M~'on J
(312) (1%5) 114 CLR 226 at 242,
190CLR 1] OF AUSTRALIA 79

must he "for the government" of the Territory In some meaningful Heo" A

1996-1997
sense (13).
In the course of argument on this aspect it was submitted hy the
plaintiffs that a test of proportionality was appropriate to assess ,
KRUGER

THE
whether a law was one for the government of a Territory. I would
reject this test, generally for the reasons 1 gave in Lcask " The
Co.''''''''-
WEALTH

Commonwealth (314). I shall not repeat those reasons cxccpt to say

that they assigned proportionality to a particular aspect of
constitutional interpretation which is not relevant to the characteris-
ation of s 122. Proportionality docs have relevance at a later stagc of
these reasons. It is hard to see why the On..linance docs not answer the
description oj" a law for the government of the Northern Tenitory since
it relates to an aspect of government and since it bears directly and
only on certain inhabitants of the Territory, by refercnce only to places
and circumstances within the Territory. It is III my view a law for the
government of the Territory.
But to say that does not answer the place of s 122 in the
Constitution and its relationship with olher sections. In Spratt ~.
Hermes (315) Barwick CJ observed of the section:
"It IS non-federal in character in the sense that the total legislative
power 10 make laws to operate in and for a Territo!)' is not shared in
any wise with the States.
But this does not mean that the power is not controlled in any
respeci by other parts of the Constitution or that nunc of Ihe
proVisions to be found ltl chapters other than Ch VI are applicahle to
the making of laws for the Territory or to its government."
II will be necessary to explore this aspect later in Ihcsc n::asons. It IS
enough at this stage to say that the plenary nature of Ihe power will
nOI necessarily exclude such express provisions as s 116 nor wlll it
necessarily exclude implications which may fairly bc drawn from thc
Constitution if relevant to the operation of the law in question (316).
It is also necessary to bear in mind the comment of the Court 1tl
Union Steamship Co of Australia Pry Lrd v King (317) in relation to
the words "for Ihe peace, order and good governmetll":
Whethcr the exercise of thai legislative power is subject to some
restraints by reference to rights deeply rooted in our democratic

(313) See AU.llralian Clif'/Ia' Telnisio/l PI\' Lrd,' The Cmlllll(lll\reolih (1991) 177 CLR
106 at 12.,-124. JlCr Gaudron J.
(314) (19%) 187 CLR 579 at 612-616.
13t5) (1965) J 1-'1 CLR 226 at 2-'12: see also C"pilof D"plicul(l/,S PI." Ltd.' Allslmll""
C"p;wl Teml"')' (1992) 177 CLR 248 at 271. p~r B,-.,nnun, [)~une and Toohey JJ
(16) 1llI,'lmfim, C"pilal Telni,\'io/l Ply Ltd I' The C"mmmm'caflh (1992) 177 CLR 106
at t76
(J17)(1988) 166CLR I aliI)
 HIGH COURT [1996-1997

IICoFA system of government and the common law is another question

-
1~~6-1~n

KRUGER
which we need not explore."

Separation of powers and due process

"
THE
COMMO,,- The plaintiffs argued that even if the Ordinance was otherwIse a law
'VEAL'rn for the government 01 the Northcrn Tcrritory, s 122 of thc Constitution
docs not support a law which confers judicial power upon a body
which is not a court within Ch III of the Constitution. They further
said that the powers exercisable by the Chief Protector (later Director)
under the impugned sections of the Ordinancc constituted judicial
power.
Thc focus of thc attack in this respect was on s 16 of the Ordinance.
the provision which empowered the Chief Protector to keep an
Aboriginal or half-caste within a reserve or AbOriginal institution.
Cenainly the power is one lo detain against the wishes of the person
concerned. And. so far as the section itself is concerned. the power is
cxprcssed in absolute terms, subject of course to the exemptions in
sub-s (3). That is not to say that when the Ordinance is read as a whole
a purpose does not emerge which controls the cxcrcisc of thc powcr.
However, as already noted, it is nut the exercise of powcr which is
before the Court.
The plaintiffs' case in this regard wcars two faccs which. as argued,
could be taken us independcnt of each other or as linked in some way.
The first IS that Ch III confers the judicial power of the
Commonwealth exclusively on "courts", that neither the Chief
Protector nor Director answered that description, that the power
conferrcd by s 16 was JudIcial, hence the conferral of power \liaS
invalid That argUlTH.:nt cunnot succeed unless Ch III upL:rates In
respect of a Territory. The second involves the proposition that, even if
Ch HI is not applic4lble to a Territory, tIle separation of powers dictalcS
that punitivl.: powers of detcntion cannot be conferred upon the
exceutive without prior adjudication or due process of la1.>.'.
In R v Bernasconi (318) Grifrith CJ made his views clcar when he
said that "the powcr confcrrcd hy s 122 IS not restricted by the
pnlVlsions of Ch III of the Constitution". Howevcr, Bernasconi itself
is not authority for that hroad proposition. The dceision was that the
power conferred by s i22 is not restricted by thc provision In S 80 of
the Constitution that the trial on indictment of any offence against any
law of thc Commonwcalth shall hI.: by jury. As \Vindeyer J observed in
Spratt v Hermes (319):
"Recognition of the decision docs not neeess(lrily involvc acecpt-
lmCI.: of the statement that Ch III as a \\'hole has no application to
the territories.'"

(318) (1915) 19 CLR 629 al 6~5

Ot')) (l 9(5) lt~ eLR 226 'II 275,
190 CLR 11 OF AUSTRALIA

In Spratt v Hermes (320), Barwick CJ spoke of the relationship He OF A

1996-1997
between s 122 and the Constitution generally in these tem1S:
KRl'GE.
"It must remain, .. a question of construction as the matter arises
whether any panicular provision has such an operation [that is THE

whether the power is controlled hy olher parts of the Constitution], COMMON-

Wf.AlTll
the construction being resolved upon a consideration of the lext and
orlhe purpose of the Constitution as a whole."
At its narrowest. this part of the argument turns on whether courts
of a Territory established pursuant 10 S 122 are "federal courts"
within the meaning of s 71 of the Constitution which vests the judicial
power of the Commonwealth In Ihe High Court "and in such other
federal courts as the Parliament creates", [n R v Kirhy; Ex parte
Boilermakers' Society of AlIstmlia (321), Dixon C1, 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(i i) and to hold that the courts and laws of a
Territory were federal courts and laws made by the Parliament.
But an entin::ly different mtcrpretation has been adopted, one which
brings its own difficulties."
As indicated in this passage. and in line with decisions of this Court,
the courts of the Northern Territory estahlished pursuant to s 122 have
been held not to be "federal courts" as referred to in s 71. Whether
Ihe doctrine of separation of powers nevertheless applies to the
Tcrritory is another question, to be mentioned later in these reasons.
Among the decisions of this Court. two command particular attention,
In Spratt v Hermes the Court held that the Parliament may, pursuant
LO s 122, create or authorise the creation of courts wilh jurisdiction in
respect of occurrences in or concerning a Territory, without observing
the requirements of s 72 of the Constitution in the appointment of the
judicial officers constituting such courts. The memhers of the Court
reached this conclusion by somewhat different routes but largely by
reference to the concern of s 71 with "the Commonwealth considered
in its federal aspect, and with courts created or invested with federal
Jurisdiction in that sense" (J22).
Capital1V & Appliances Pty Ud v Falconer held that the Supreme
Court of the Australian Capital Territory is not a federal court or a
court exercising federal Junsdietion within the meaning of s 73 of the
Constitution. Owen J said (323):
"It is a terri tonal court created by the Parliament pursuant to s 122

(J20) (1965) 114 CLR 226 al 242.

(321) (llJ561 <)4 CLR 2~4 at 290.
n22) -'('rail" Hermes (t9651 114 CLR 226 at 274, per Windeyer 1. See also at 243. p~r
Balv"id. CJ: al 25L pn Kill" J:;lt 2(,4. per Taylor J; and m 2~O-2~1, per Owen J.
(:'2:,) Capila{'/V (!lJ7 I) j 25 CLR ';91 at 61.1-614
82 HIGH COURT [ 1996-1997

HCOF A of the Constitution and not a 'federal court' within the meamng of

-
1996-1997

KRUGl"

"
TilE
eh III."
Barwick CJ reconsidered the cOnsequences of the reasoning in
Banasconi, saying (324):
C"'1MnN_
V,l\Utl "But in the end, I have come to the same conclusion, namely that
the judicial power to which s 7 J refers is that pan of the totality
or jw..licial power which the Commonwealth may exert which can DC
called 'federal judicial power' ,"
The Chief Justice held that "the doctrine of the duality of the judicial
power was so deeply entrenched that it ought [Jot now to be
overturned" (325).
Faced with Sprafl r Hermes and Capita/IV & Appliances Pry Ltd v
Falconer, the plalllliffs submitted that the Court should now reject the
curn::ctm:ss of the approach taken in those cases. They made lhat
submission as only one of the courses the Court might take. Primarily.
they submitted that this step was not required for their argument to
succeed. They contended that the proper understandmg of the federal
structure and nature 01 the Commonwealth offered no ground on
which to exclude the operation of" Ch III from laws enacted pursuant to
s 122. Indeed they contended that the decisIOns referred to were
authority only for the operation of ss 72 and 73(ij) of the Constitution.
As thcy put it. the decisions can he "shorn of their supporting
reasonmg
Central to the plaintiffs' argument was the submission that the
territories fonn an integral part of the Commonwealth and of a single
federal system. Thc pOlnl was Illade by Menzies ] m Sprau ('
Hermes (326) when he said:
. 'To me, it seems inescapahle that Territories of the Commonwealth
arc parts of the Commonwealth of Australia and I find myself
unable to grasp how what is part of the CommoO\vealth is not part
of 'the Federal System' It cannot. therefore, be said that the
territories are governed by 'territorial laws' as distinct from laws of
lhe Commonwealth."
Certainly that statement finds support in the preamble to the
Commonwealth of Australia CO/Istitlllioll Act 1900 (Imp) which recites
that '"the people have agreed to unit<: ][} one indissoluble Federal
Commonwealth under the Constitution herehy estahlished". It
followed from these considerations, the plaintifrs submitted, that with
the Constitution established to govern a system of whieh the territories
formed part there was no reason to exclude the territories from the
separation of powers implicit m Ch Ill.

{324) Capilal IV (1971) 12) CLR YJI at 5\.19,

(25) Copil"t TV {1971) 125 CLR )'J I 3.1 59R
(.126) (]\!65)] 14 el.1< 226"-1270-271
190CLRI] Of AUSTRALIA 83

As noted. there are judgments of this Coun in v.'hich the relationship Il COf' A
1996-1997
of s 122 to the Constitution generally has been discussed, Thus in
Spratt v Hermes (327) Windeyer J said:
"[Tlhe power to make laws for the territories under s 122 is not THE

independent of and uncontrolled by other provisions of the O"'~1(\"_

\\TMTH
Constitution The Constitution must be read as a who\(;. an
instrument of government for a nation and its people, the
Commonwealth of Australia,"
In Australian Capital Television Ptr Ltd v The Com mOil wealth (328)
Gaudron J said of Spratt v Hermes and Bernasconi:
"'[I]t does not follow from those or any of the other cases decided
with respect to s 122 that it stands apan from other provisions of the
Constitution ',','ith its mcamng and operation uninfluenced by them."
In Capital Duplicators Pty Ltd v Australian Capital Territory (329)
Brennan, Deane and Toohey JJ referred to thl: judgment of Kitto J in
Lamshed \' Lake (330) and concluded:
'It would therefore be erroneous to construc s 122 as though it
stood isolated from other provisions of the Constitution which might
qualify its scope."'
The plaintiffs' argument, in short, is that separation of powers tS an
element of the Constitution, that laws enacted pursuant to s 122 arc
exercises of the legislative power of the Commonwealth and arc laws
of the Commonwealth and that an exercise of jUdicial power conferred
by any law made by the Parliament is an exercise of the judicial power
of the Commonwealth. Consequently a law of the Commonwealth,
including a law made pursuant to s 122 conferring judicial power,
must comply with the requirements of Ch III.
There is another way of approaching this question and that is to sec
the Constitution as vesting legislative power exclusively in the
Parliament, executive power exclusively in the Governor-General and
judicial power exclusively in the courts created by the Parliament.
Chapter III then is seen as a manifestation of the separation of powers
which the Constitution mandates. In Leeth v Commonwealth (331)
Deane] and I said:
"Again, the Constitution contains no detailed statement of the
contenl or implications of the doctrine of the separation of judicial
power from executive and legislative powers which it implements

(27) (l%S) 114 CLR 226 at 277-27li"

(28) (1992) 177 CLR lOr; at 222
(32')) il~(2) 177 CLR 248 at 2n
CUll) i I958) 'JO! CLR 1:12 at 154,
(.,,1) {19(2) 174 CI.R 455 ilt 485, S~" ~bo Kable \' DI"CClor o{ I'ubllc 1'1'O,'ecwi"ns
(,VSI'.'! 119(6) 189 CLR 51 aI 6(,-67.
84 HIGH COURT [ 1996-1997

fI COl' A hy expressly vesting the juuicial power of the Commonwealth in

1996-1997
eh [II courts (s 71), the legislative power of the Commonwealth in
KRl'G[R the Parliament (s 5 [) and the executive power of the Common-
, wealth in the Crown (s 61). The adoption of that doctrine of the
TilE
CO,1MO'<.
common law as purt of the vcry structure of the Constitution is,
WEALTil however, apparent." (footnote omiUcu)
The argument in support of the proposition Ihat eh III of the
Constitution does extend to the Territories is very persuasive. But the
plaintiffs still face a formidable obstacle in the path of their argument.
In general tcnns. the power to oruer lllvo]untary detention IS an
incident of judicial power. In Chu Kheng Lim v Minister for
Ill1lniRratiofi (332) Brennan, Deane and Dawson JJ spoke of
"the general proposition that the power to on..ler that a citizen he
involuntarily confined in custody is_ under the doctrine of the
separation of .. powers enshrined in our Constitution, part of the
Judicial power of the Commonwealth entrusted exclusively to Ch III
courts" .
That proposition was affinned hy a majority of the Court in KaMe v
Director of Puhlic Prosecutions (NSW) (333).
However. both decisions recognise that there are qualifications to
the general proposition that involuntary detention is necessarily an
incident o[ the .Iudicml function of adjudging and punishing criminal
guilt. The qualifications to which Brennan, Deane and Dawson II
referred include detention in cases of mental illness or ml"cctious
disease and committal to custody awaiting trial. Their Honours left
open "whether the defence power in times of war will support an
exccutive power to make detention orders" (334). And in Lim itself
tbe Court upheld a law conferring upon the executive authority to
detain an alien in custody for the purposes of expulsion or deportation.
The point is that there arc qualifications to the general proposition so
that it cannot be said in absolute terms that the power to detain m
custody is necessarily an incident of judicial power.
Judged hy current standards, the involuntary detention of an
Ahoriginal pursuant 10 such a provision as s 16 of the Ordinance could
hardly be brought within any of the recogmscd exceptions to the
general proposition. Conscious of this, the Commonwealth submitted
that the welfare and protection object of the legislation must be judged
hy the values and standards prevailing at the time. TIle plaintiffs' reply
was that. even by the standards prevailing in 1918, the Ordinance was
one which expressly contemplated pcmlanent institutionalisation and
carried an unqualified power of indefinite detention, unlimited by the
ohjccts or circumstances of necessity said to justify that power.

(32) (1992) 176 CLR 1 at 2~,

OJ}) (1'196) 18'1CLII. 51
0.14) ClllI Khc"" Lim (19'12) 176 CLI< t ot 2~. n ({)(,)
190CLR1J OF AUSTRALIA 85

A welfare purpose IS evident in the legislation, emrhasiscd by the HCOFA

19%)997
lcgislntive histol)' to which reference hm; been nwde. The Chief
Protector (and later the Director) was the legal guardian of
Aboriginals. His duties, identified in s 5( I), included the distribution
THE
of forms of "relief or assistance to the Aboriginals", the supply of
O'.'''f(lN-
food and shelt~r, medicine, provision for custody, maintenance and \'>'EAlTH
education and
"(f) to exercise a general supervision and care over all malters
affecting the welfare of the Aboriginals, and 10 protect them against
immorality, injustice. imposition and fraud".
Section 6( I) empowered the Chief Protector
"to undertnke the care, custody. or control of any Aborigimll 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".
The responsibility for welfare cast upon the Chief Protector is at odds
with the notion that the powers conferred by the Ordinance are of
themselves punitive and necessarily involve the exercise of judicial
power (335). And this is the argument with which we arc presently
concerned. While this does not necessarily provide an answer to other
bases of the plaintiffs' claim, the argument bascd on judicial power
cannot succeed.
Free exerciye of relixion
Section 116 of the Constitution provides inter alia:
. 'The Commonwealth shall not make any law for estahlishing any
religion, or for imposing any religious observance. or for prohibiting
the free exercise of any religion."
There are stmements in several decisions of the Court in surport of
the proposition that s 116 is applicable to an exercise of power under
s 122. In Lnmshed j} Luke Dixon CJ, with whom Webb, Kitto and
Taylor 11 agreed said (336) that he did nol "sec why s 116 should not
apply to laws made under s 122" (337). There is nothing in the nature
of s 116 that bears only upon the relationship between the
Commonwealth and the States. And this is so even though the
provision is found in Cll Y "The States". For instance, s 118, which is
also in eh Y, reqUires that full faith and credit shall be given

(335) ClIU Khen!\ {jm "Milllsterj;H 1111"'/1;,-"tl"n (1992) 176 CLR 1 at 31-33, 71
(3361 L"'n"hed I' !-<Ike (1958) 99 CLR lJ2 at 143
(337) See ai,,, 7'eon lilu v nil' Commmll1'e"lth (1969) 119 CLR 564 at 570; Adelaid"
Co o(.fehomh's Wimes.'es ll1e \ The Comm"nwealth (19et3) 67 CLR lifo al In,
!"'r Latham CL :ll 156-157, p~r McTieman J: At/ome."-Gnwm! (II/eli: L:t rei
B!ud v The C{JlJlllt(l!Iwea!lh (198 I) 146 ClJ{ 559 al 576. per Banvick CJ: al 618,
per Mil,on J: al 621, p~r MUl1'hy J: m 649, per Willon J: cf al 593-594, per
Gibb, J,
R6 HIGH COURT lI9%-19'n

II C "" A throughout the Commonwealth "to the laws. the puhlic Acts and

-
1~96-19n

KRL{]ER
records, anu thl: jw..licial proceedings of every State". It is not
concerned with the position of the Commonwealth vis-a-vis the States.
The real problem for the plaintiffs in this aspect of then claim lies
rilE
in demonstrating that the Ordinance is a law "for prohihiting the free
COM'10S-
WE"LTII eXCfcise of any religion". Section 116 "is directed to the making of
law. It is not dealing with the administration of a law" (338). The use
of the word "'for" indicates lhat "the purpose of the legislation in
question may properly be taken into account in uctcnmnmg whether or
not it is a law of Ih,,; prohibited character" (339) .. 'Purpose" in this
context "refers to an end or object which legislation may serve ... it is
the C0U11 which must decide whether the measure possesses the
requisite charactcr" (340). It docs not follow that there is only one
purpose to be discerned in a law: there may be more than one. The
question should therefore he asked: was a purpose of the Ordinance to
prohibit the free exercise of the religion of the AbonglIIals. to whom
thc Ordlllance was directed'! [t may well be that an effect of the
Ordinance was to Impair, even prohibit the spiritual heliefs and
practices of the Aboriginal people in thc Northern Territory. though
this is something that could only be uemonstratcu by evidence. But I
am unable to discern in the language of the Ordinance such a purpose.
The Commonv.'ealth points to the fact that the plaintiffs have not
pleaded that, at the relevant time, they or their parents held religious
beliefs or that the detention of the plaintiffs deprived them of the
capacity to exercise those heliefs. It may be that this shortcoming only
precludes a claim for damages hy the plaintiffs. In any event. it does
not stand in the way of a declamtion that the Ordinance was invalid if
the Court is satisfied that it was for a purpose of prohibiting the free
exercisl: of rdigioll.
In their \vritten submissions the plaintiffs have referred to official
reports and corresponuence which, they say. evidence the vcry purpose
of the policy embodied in the Ordinance as the removal of half-caste
children to prevent them from assllnilating the "hahits, customs anu
superstitions of the full-blooded Abonginals". Assuming that the
material in question is admissihle in the construction of the
Ordinance (341), it cannot be relied upon in the proceedings as they
arc now before the Courl. The possibility of sustaining the claim by
reference to extrinsic material does not warrant giving a qualified
ansl,l,'er to so much of Question I as is relevant to this head of the

(338) ..1 1IUmey-GeIiNal il/iui. Fx rei mack,' Th~ COl!llllOJlwealih (19RI) 146 CLR 559
at 5BO-'iBI. p"r Harwid. Cl.
(339) Adelaide Co o{lt'iwmh's Will/en~.< ""')' The C,mlllw"",cililh (1<)43) 67 CLR 116
nt 132, per Lmh"m U.
(:'40) i\1I,'lmliml C"""'IINlisl ('art")' The Conmw"",,,,,111r (1~5l) 83 CLR 1 :ll 273. per
Kitto J
(341) See Arthur rmes & Co Plr L/(i \' VCI{NIlhie Se",ls Commit/a (1')45) 72 CLR 37 al
oS
190 CLR 11 OF AUSTRALIA 87

plaintiffs' claim. As the matter has come before the Court, the claim H CO" i\
1996-19Y7
under "free exercise of religion" must fail and the question answen.:d
accordingly.
Genocide
'"'
COM"O'"
In their amended statements of claim the plaintiffs plead that the WEALTH
Ordinance, in particular ss 6, 7, 16 and 67 in so far as thc latter
purported to confer power to make relevant n.:gulations, was invalid
beeausc
"it was contrary to an implied constitutional right to l"rcedom from
and/or immunity from any law. purported law or executive act:
A. providing for or havmg a purpose, the effect or the likely effect
of the destruction in whole or in part of a racial or ethnic group, or
the language and culture of such a group~
B. subjecting the children of a racial or cthnic group, solely by
reason of thcir membership of that group, to the legal disability of
removal and detention away from thc group; or
C. constituting or authorising the crime against humanity of
genocide hy, inter alia, providing for, constituting or authorismg:
(i) the removal and transfer of children of a racial or uhnic
group in a manncr which was crllculated to hring ahout the
groups physical dcstruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely
effect of causing serious mental harm to memhcrs of a racial
or ethnic group; and
(iii) the deliherate infliction on a racial or ethnic group of
conditions of life calculated to hring ahout its physical
destruction in whole or in part".
On its face then the claim to invalidity is anchored finnly in the
Constitution. However, the arguments presented to the Court on behalf
of the plaintiffs were confined to the submission that the Ordinance
was invalid because it authorised acts of genocide contrary to Art II(d)
and (e) of the Convcntion on the Prevention and Punishment of the
Crime of Genocide (the Genocide Convention).
The Genocide Convention was not ratified by Australia until 8 July
1949 and did not enter into force until 11 January 1951. mQfe than
thirty years after the Ordinance was enacted. The provisions ()f the
Genocide Convention do not form part of Australian municipal law
since they have not been incorporated by statute (342). At the same
time, resort may be had to the Convention, as with any international
instrument to which Australia is party. to throw light on the proper

t-'4~) ,Hilli.,rer/'!f Immi/\I"tUioJ! Wid Ibm" Alfain ,- {eoli (1')')5) 18J CLR 273 ot 286-
287. In, 304. 315.
 HIGH COURT [1996-1997

II COFA construction of a statute or subordinate legislation which is ambigu-

1996-1997
ous (343).
No doubt because of the relationship in time between the Ordinance
and the ratification of the Gl:nocidc Convl:ntion, the plaintiffs also
THF
COM"O'"
argul:J that the latter reflectcJ a norm of international law and that thl:
\VFAUII Ordinanl:e should be construed on the footing that s 122 was not
intended to confer power to make a law authorising acts in contlict
with that norm.
On its face the relevant paragraph or cach statcment of claim gives
rise to difficult questions of implied constitutional freedoms and
immunities. But heeausc of the way In which this part of the claim was
argued, the focus must be on Art II of the GenociJe Convention 1TI
which, relevantly, genocide is defined inter alia to mean
"any of thc following acts eommittcd with intent to destroy, In
whole or in part, a national, ethnicaL racial or religious group, as
such:

(d) Imposing measures intended 10 prevent births within the group;

(c) Forcibly transferring chilt.lrcn of the group to another group".
Each of the 'acts" which spells out genocide is qualified by the
opening words "with intent to destroy' There is nothing in the
OrJinance, according to it the ordinary principles of construction.
which "'(JuIJ justify a conclusion that it authorised acts 'with Intent to
destroy, in whole or in pan the plaintifk racial group_
Once again, at the risk of undue repctition, it is necessary to kcep in
mind that it is the validity of the Ordinance. not any exercise of power
under the Ordinance, which is the subject of these proceedings.
Freedom oImoremenr and associatioll
The plaintiffs plead, in each statement of claim. that the Ordinancc
was
"contrary to an implied constitutional right [0 and/or guarantee of
freedom of movement and association'
lllis was reformulated in argument to a
"constitutional right to anJ immunity from legislative and executive
resnictions on freedom of movcmcnt and assoL:iation for political,
cliltural and familial purposes"
In Cole " Whirjield (344) the Court s~iJ that to givl: contcnt to the
words "'intercourse" and "absolutdy free" in s 92. there must be a
guarantl:c of personal freedom "to pass to and fro among the States

(\43) MIIII,Iter!,,, Il/lllli!!/'<lIillll and 10111";,, Aft,,;,,)- reo" (199:;) I~J CLR 273 nt 2~7.
31-'i,
(44) (t988) 165 CLR 360 m 393,
190 CLR I] OF AUSTRALIA

without burden. hinurancc or restriction" (345). The plaintiffs do not H C'l; A

rely upon s 92 or upon the express language of any other section of the
Constitution. The freedom upon which they rely is said to be implicit
in the Constitution, rather in the way in which Murphy J, in Buck F
-
1996-1997

KRlC"ER

THE
Bm'one (346), spoke of the right of persons to move freely across or COM-'>10.'-
within State bonlers as 'a fundamentJl right arising from the union of WHLTH

the people III an indissoluble Commonwealth". It is true that this

observation was disapproved in Miller v TeN Channel Nine Pry
Lid (347) but the trend of more recent authority calls for further
consideration of the matter in an appropriate contexl.
In Natiunwide Nnvs Prv Ltd v Wills (348) Deane J Jnd I spoke of
"three main general doctrines of government which underlie the
Constitution and are implemented by its provisions" The third of
these we deseribed JS
"the doctrine of represent<Jtive government, that is to say, of
government by representatives directly or indirectly elected or
appointed by, and ultimately responsible to, the people of the
Commonwealth, The rational baSIS of that Jodrine is the thesis that
all powers of govcrnment ultim<ltely belong to, and arc derived
from, the governed",
Later we said (349):
"The people of the Commonwealth would be unable responsibly
to discharge and exercise the powers of governmental control which
the Constitution reserves to them if each person was In island,
unable to communicate with any other person."
In McGinn' F Western Australia (50) r said:
"Recent decisions of the Couf! have held that the Austmlian
Constitution prescribes a system of representative democracy or
representJtive government. The terms have been useJ somewhat
interchangeably.' ,
The "recent decisions" induded Nationwide News PI\' Ltd v Wills and
also Auslralian Capirol Television Pty Ltd v The Cnmmmnvealrh (351),
Theoplwnotls v Herald & Weekly Times Ltd (352) and Srephens v West
Il/lstralian Newspapers Ltd (353). Notwithstanding differences of
opinion expressed by Justices in those c<Jses, the Couf!'s recognition of

n4S) A qumalion fwm CroMiek l'jollllson (1\.145) 70CLR 1 m 17.

D46) (I':!76) u.~ CLR 110:11 tn
1347) (I'Jl\6) 161 CLR 5.~6
n4~) (I ':!92) 177 CLR 1 al 69,70,
(34':!) ,V"ulm"ide Ne"" (1992) t77 CLR I at 72
DSIl) (1996) 1~6 CLR 140 al In.
0.'; I) (1992) 177 CLR 106.
(3S2) 119':!4) 182 CLR 104.
0.';.1) (19')4) 1~2 CLR 211
90 HIGH COURT [1996-1997
IlCoFA a freedom of communication amI discussion of political matters
19%-1997
~
derived from the Constitution is beyond questIOn in the light of Lange
K~L'Gi," v Australian Broadcasting Corpora/ion (354).
, The plaintiffs identify a fn.:cuom of movement and association "fof
THE
C"''-''ON-
political, cultural and familial purposes". Although thl:lf argument was
WBLTH directed to these hroad purposes, its focus was on the prohibition of or
restrictions on political COllutlumcation. That is not surprismg, given
the recent trent.! of authmity in this Court. However the preponderance
of recent decisions should not conceal the early recognition by the
Court of the rights of the citizens of a federation. In R v Smithers, Ex
parte Henson (355) Barton J sait.! of the judgment of Miller J in
Crandall v Nevada (356):
""The reasoning shows that the creation of a federal union with one
government ant.! one legIslature III respect of national affaIrs ussures
to every free citir.cn the right of access to the institutions, anu of t.!ue
participation in the activities of the nation."
To speak of political communication is in some ways lo unt.!erstate
the true nature of the freedom which it cntails. As r-.lason CJ
commentcd in Australian Capiwl Television Pry Ltd v The Common-
wealth (357):
. "Precuom of communication In rdation lo puhlic affairs and
political discussion cannot be confineu to communications hetween
eJected representatives and candidates for election on the one hand
and the eleclorate on the other. The efficacy of representative
government depends also upon free communi calion on such matters
between all persons. groups and other hodies in the community"
And. as Drennan J observed in IVatiol1wide Nt'lI'S Ply Ud V H'ills (358 j:
"But where a represL:ntative ucmocracy IS constitutionally
entrenched, it carries with it those legal incidents which are essential
to lhL: effectivc maintcnancc of that form of government."
In Theophanous \' Herald & Wefkly Times Ltd (359) Mason CJ,
Toohey and Gaudron 11 adopted the obsl.:fvation of Barenut (:160) that
" "political speech' refers to all speech relevant to the development
of public opinion on the whole range of issues which an intellIgcnl
citizen should think about".
Nothing said in Lange diminishes the scope of the implied freedom as

(3~4) II 9'J7) I W! CLI{ ~2i1,

(355) (1912) Iii CLR 99 at 109-110
13.'16) (I ~6 71 7-' US .,5.
(357) (I '!'J2) 177 CLI{ 10(, Jt 13(),
(358) (,19921 J77CLR I m48
(35')) (19941182 CLR 104 at 124,
n60l Freed"", of S/,ur'!! (19R';I. r 1:;2
190CLRlj OF AUSTRALIA 91

I have identified it; rather the decision reinforces it. Certamly Lange He"" A
1')9/i,1997
endorsed what had heen said in earlier deCIsIOns, namely, that the ~

freedom of communication which the Constitution protects is not

absolute. ,
KRUGeR

THE

"It is limited to whatls necessary for the effective operation of that Ol."M"~
WEAl.TH
system of representative and responsible government provided for
by the Constitution." (361)
In Re Public Service Employee Relations Act (362), McIntyre J
described freedom of association as "one of the most fundamental
rights m a frce society", Although that case was decided under the
Canadian Charter of Rights and Freedoms, it is apparent from the
judgment that the importance of freedom of association was
recognised by Canadian law prior to the Charter. While the freedom
has many facets, it is an essential mgredient of political communi-
cation, a freedom which extends not only to communications by
political representatives to those whom they represent but also to
communications from the represented to the representatives and
between the represented (363). Indeed, the freedom necessarily
extends to all the people of the Commonwealth (364).
I agree with Gaudron J that m order I'm the residents of the Northern
Territory to comment on the way in which they were governed they
had to be free to provide other members of the body politic with their
views on all mmters relevnnt to their government and to discuss those
matters amongst themselves. As her Honour observed in Austmlian
Capital Television Pry Ltd v The Conrmomvealth (365):
"[A]s the matters entrusted to the ConmlOnwenlth include the
power conferred by s 122 to make laws for the government of its
Territories, the freedom of political discourse necessarily extends to
every aspect of Territory government.' ,
Comment and discussion by all those who are governed is essential for
the people to make an informed choice as electors (366). It is in this
context that issues relating to the freedom of communication will
ordinarily arise since a system of universal adult franchise now exists.
And, so far as the Northern Territory is concerned, its residents are
now called upon to make nn informed choice for the House of
Representatives and the Senate. But the frecdom of communication is

(61) LWIRe v Au"lralia" l:JmaJunling Corf'0r(ll/o/l (1997) 189 CLR 520 al 561
(62) [1987 J I SCR -' n at :In
(63) AU.\/rI.diwl Capilill Fe/e,'i.,io!! PIy!.t1l ,. The CO/lllllo/!ll'e,iI,fI (1992) 177 CLR t06
~t 13'1, per M~s()n CJ: at 174. pCr' Dcane and Toohey 11 at 212. per Gnudrnn J
See also Re PuNic Sen-ice Emf'/o.l'N' Relalio"" Act 11 ')l\7 J I SCR -' I 3 ~t 3\.1 I
(64) Australia" Capilal Te/ais/OII Ply Ud, T"~ C"mJJlo1l,,"pulrIJ (19'12) 177 CLR 106
~I 142, per M~son CJ: at 168169. pcr D""ne and T(Joh<:y JJ.
(65) (1992) 177 eLR Ifl6 "t 215,
(66) U"'iiC v A".\'Ir,r!illll Bm"deas/illii e"'/'Oralio!/ (1997) t89 CLR 520 at 560-561
92 HIGH COURT [1996-1997

HC", A not so confined. As McTiernan ami Jacohs JJ observed in AUornn-

-,
1996-1997

K"c"Gl"
General (Cth); Ex rel McKinlay v The Commonwealth (367):
"The people is the hody of subjects of the Crown mhabiting the
THE Commonwealth regarded collectively as a unity or whole, and the
Cm1\10N- sum of those subjects regarded individually."
\VULT"
for these reasons it is no nnswer to the claim based on the implied
freedom of political communication to point out that during the
currency of the Ordinance the residents of the Northern Tcn-itory were
not eligible to cast a vote for either the Senate or the House of
Representatives. That is to take an impermissibly narrow view. The
freedom does not ebb and now in that way. Similarly, the freedom
does not turn upon the electoral status of individuals. In other words, it
is not answered by the capacity or incapacity of Aboriginals to register
a vote during the currency of the Ordinance. I shall, when dealing with
the concept of legal equality, say something about the position of
Aboriginals as citiLens.
Although the plaintiffs assert a "right of association". in truth they
claim a limitation on legislative power to restrict the freedom of
association \vhich political communication demands. For the reasons
stated above, and for the reasons advanced by Gaudron J with which I
respectfully agree, s 122 is confined by the freedom of political
communication identified in the authorities.
In the light of these conclusions it is necessary to consider the
Commoll\.vealth's alternative defence (36R) that
"(i) the Ahoriginals Ordinance was enacted and amended for the
purpose of the protection and preservation of persons of the
Abonginal race; and
(ii) at all material times the Aboriginals Ordinance was capable of
being reasonably cunsidcred to be or alternatively was appropriate
and adapted to the achievement of that purpose".
Earlier in these reasons I referred to the question of proportionality
as [ had discussed it in Leask v The Commonwealth. In the context of
that case I rejected proportionality as a relevant test. However, in the
present context it is relevant because of the tension between the
implied freedom of political communication and the express grant of
power for the government of the Northern Territory (3691. Put another
way, the relevant provisions of tht: Ordinance must not be
disproportionate to what was reasonably ne\:cssary for the protection
and preservation of tht: Aboriginal people of the Northern Territory.
Whether the inquiry is in the terms as I have just expresset.l it, or
whether it be in terms of reasonably appropriate and adaptt:d to serve a

(367) (1')75) 135 eLl< 1 al.15.

(ViR) par 29(dJ (Kruger). par 26(dl (Bray),
(J6':l) See Lealk (1\.1')6) I ~7 CLR 57\.1 ",t 612-61 (,
190CLR 11 OF AUSTRALIA 93
legitimate end (370), it is relevant to consider the standards and l-I COf i\
14%_14n
perceptions prevailing at the time of the Ordinance. That is not to say
that those standards and perceptions necessarily conclude the maller;
the infringement of a relevant freedom may be so fundamental that
THE
justification cannot be found in the views of the time. But the CO"."os-
Ordinance docs have a welfare character and questions of "'FM,TH

proportionality and adaptedness cannot exclude the prevailing percep-

tions. lbat, I think, is clear from the views expressed in Chealle v The
Queen (371) where the Court said of the unchanging clements of trial
by jury:

"The restrictions and qualifications of jurors which either advance

or ::Ire consistent with it may, however, vary with contemporary
standards and perceptions."
Again. in Attorney-General (Crh;; Ex rei McKinlay v lJie Commol/-
Ivealth (372) McTiernan and Jacobs JJ said of s 24 of the Constitution:
"'The words 'chosen by the people of the Commonwealth' fall 10
he applied to different circumstances at different times It
depends in part upon the common understanding of the time."
Powerful arguments can he mounted for saying that the powers
conferred on the ChJcC Protector (and Director) were so extensive that
reference to prevailing perceptions cannot save them. BUI, m my view,
the manner in which these issues come hefore the Court means that an
inquiry into those perceptions cannot be excluded. It follows that while:
the legislative power conferred by s 122 of the Constitution is
reslncted hy the freedom of movement and association implied in the
Constitution, it is not possihle: to say at this stage of the proceedings
that the impugned provisions of the Ordinance are necessarily invalid
on that account. No question arises mdependently as to the validity of
the Administration Act.
If" any of the provisions of the Ordinance were held invalid, it docs
not follow that the conclusion would ground a right of action in
damages against the Commonwealth which is distinct from a right of
action in tort or for hreach of contract (373), The imphed limitation
operates as a restriction on legislative power. nOl as grounding a cause
of action (374). It means thm, in response to any common law claim
for trespass or false imprisonment, the authority conferred hy the
Ordinance to take Ahoriginals into custody must yield to the freedom
of association implied hy the Constitution.

(3701 See LanKe I' AII.\/1'llliall Broad,."asrinK Corporari"" (1')')7) IH') eLI{ S2() 3.1 Slil-
562.567-568.
(.Hl) (1993) 177 CLR 54t al .'iOO
(72) ([975) 135 CLR 1 al 30.
(373) Set' Queslion 2.
(74) Nor/hem TenilOr..... " MenKe! (1995) 185 CLR 307 at 350-353. 372-373,
94 HIGH COURT [1996-1997

He"F A Legul equality

-
1~%-1997

KrWGLR
,
In Leeth v The Commomwa!th (375) Deane J and r spoke of a
doctrine of legal equality, having two distinct but related aspects.
The first is the suhjection of all persons to the law. The sccomL that
TilE
Cc)MMO~' upon which the plaintiffs relied to impugn provisions of the
WE,\LTH Ordinance, involves the underlying or theoretical equality of all
persons under the law and hdorc the courts, In Leeth we concluded,
for the re:lsons there given. that while the Constitution did not spell
OU! such a doctrine in express words, it adopted it as a mailer of
necessary imphcation. ThOSl: reusons mcluded "the conceptual basis
of the Constitution", that is, the free agreement of the people of the
federating Colonies to unite in the Commonwealth under the
Constitution. [n Street v Queensland Har Association (376) 1 s<lid, in
relation to s 117 of the Constitution, that while the section was the
product of compromIse, "there IS nothing to suggest that it represented
any compromIse of the principle that Australia was to he a
commofl\vealth in which the law was La apply equally to all its
citizens".
In Leeth (377) we added:
"The doctrine of legal equality is not infringed hy a law "..hieh
discriminates between peopk on grounds which arc reasonably
capahle of heing seen as providing a rational and rekvant hasis for
the discriminatory treatment. In one sense. almost all laws
discriminate against some people since almosl all laws operate to
punish. penalise or advantage some, hUl not all, persons hy
reference to whether their commands are breached or ohserved.
While such laws discriminate against those whom they punish or
penalise or do not advantage, they do not infringe the doctrine of the
equality of all persons under the law and hefore the courts. To the
contrary, they assume that underlying kgal equality III that they
discriminate by reference to relevant differences. Again, laws whieh
distinguish between the different needs or responsibilities of
different people or different localities may necessarily be directed to
some, hut not alL of the people of the Commonwealth." (footnote
omitted)
In the same case Brennan J acccpted a principle of eqltality, though
in terms which led him to join the majority in upholding the validity of
the sentencing legislation under challenge. His Honour distinguished
between the judicial power to send an offender to prison and the
executive power to release a pnsoneL As to the former his Honour
said (37::-:):

075) (t'!'J2) t74 eLl{ 4'i5 at 4R5-490

(376) (In91 16R CLR 461 at.'iS4
(1771 (1992) 174 CLR 455 at 481\-489,
(In) Lurllll'J[J1) 174CLR 455 at 47'\.
1l)(}CLR I] OF AUSTRALIA 05

"IL would be offenSIve to the constitutional unity of the Australian H COF."

1996-1997
people 'in one indissoluble f.:'ederal Commonwealth' .. to expose
offenders against the same law of the Commonwealth to different KReGER
max.imum penalties dependent on the locality of the court by which
TFI[
the offender is convicted and sentenced." COM,,]nl'-

Gaudron J spokc in tenns of judicial power, saying (379): "'c._,Ln,

'It is an essential feature of judicial power that it shoulJ bc Tn,,",,- J

exerCIsed In accordance with the JudiCIal process.
All are equal before the law. And the concept of equal justiee-
a concept which reqUlrcs the like treatment of like persons 111 like
circumstances, but also requires that genuine differences be treated
as such - is fundamental to the Judicial process."
It follows that a view of Leeth which confines any doctrine of equality
to the joint judgment of Deane J and myself Joes less than justice to
the reasons of Brennan J and Gaudron J.
Because equality is derived from the Constitution, it IS no answer to
refer to laws in which Aboriginals or other groups have heen treated
unequally. However, a particular law may not infringe the principle,
for the reasons Deane J and J nlentified in Leeth. The Constitution
mentioned Aboriginals only twice: one of those proVIsions has heen
amended, the other n:pealcd. Section 51 of the Constitution
empowered the Parliament to make laws with respect 10:
"(xxvi) The people of any race, other than the Ahoriginal race 111
any State, for whom it is deemed necessary 10 make special laws."
The words "other than the Aboriginal race in any State" were later
deleted (380). Section 127, which was repealed by s 3 of the same Act,
read:
"In reckoning the numbers of the people of the Commonwealth, or
of a State or other part of the Commonwealth, Aboriginal natives
shall not be counted."
Referring to par (xxvi) before it was amended, Professor Sawer
commented (381):
"The exclusion of the aborigines may not necessarily have been
against theil" interests in accordance with the ideas of the time; while
they might have lost the possibility of Commonwealth laws for their
protection and advancement, so far as such laws had to depend on
(xxvi), they were also saved from the sort of laws against their

(379) Leelll (1992) 174 CLR 455 at 502_

(80) Con.Hill/lioli Aller<iliml(Av"rii<IIIItlS) j 967 (C1h). s 2_
OR I) Sawcr, "Th", AUSlfalian Constillilion and Ih", Australian Aborigine". Federal Lill';
Rniew, vol 2 {19(6) 17. al p 23
 HIGH COURT [1996-1997

He Of ,\ interests which were uppennost In the minds of the delegates as

1996-1997
likely to be passed pursuant to the placitum"

,
KRlCnF.R Both provisions are negative and, as Professor Sawer further
THE
observed (382):
co""o,, ,It is contrary to common sense to attributc to them any more
WEALTH
significance than they possess considered individually and in
relation to the disparate considerations with which history suggests
they were intended to deaL"
In particular there is nothing in the Constitution which excludes
Aboriginals from citizenship. Their exclusion from citizenship rights,
in particular voting rights, was the result of legislation (383). It is
unnccessary to purSlte the steps that were taken m this regard: the
matter is explored in a recent article by Professors Galligan and
ChestenTIllil who conclude that nothing in the Constitution excluded
Ahorigmals from Australian citizenship (384). There is nothing that
excludes Aboriginals from the principle of equality save the
qualification that the principle is not infringed by a law which
discriminates bclween people on grounds which an:: reasonably
capable of being seen as providing a rational and relevant basis for the
discriminatory treatment. Indeed. in Leeth (385) Deane J and I spoke
of thl: fact that
"a legislative power to make special laws with respect to a
particular class of persons, such as aliens (Constitution, s 51(xix)j or
persons of a particular race (s 51 (xxvi, neeessarily authof\ses
discriminatory treatment of mcmbcrs of that class to the extent
which is reasonably capable of being seen as appropriate and
adapted lO the circumstance or that membership".
Of course, during the period of the Ordinance s 51 (xxvi) exeluded
"the Aboriginal race in any State". It is not that sub-section with
which we arc directly concerned (386). It may be noted however that
the "discriminatory treatment" referred to in Leeth does not stand in
necessary contradistinction to laws which are beneficial to a particular
class of persons; it may include such laws.
Thc preamhle to the Constitution recites that "the people have

Ole) SJwer, Federal Lml/le\,/('\\'. vol 2 (1<)(,6) 17. 'It r .15.

(3R3\ The Climmmlll'p"llh Frarwhiu /11:1 190} (Oh\ ,,4 provided
;-';0 Ahoriginal native of Australia shJJJ be entitkd !O h~ve his narn" pl~eed on
<In El"etoral Roll unle" so "ntitkd under ,,,dion fOTty-one of thl Constitution.'
OR4:, G~llig~n wHI Chesterman. "Ahori[!in~,. Citiz~nship and (h~ A"mahan
Constitution: Did the Consti!llt;on Exdlld" Abor;g;n~ll-'eorl" from Citizenship)"
I'uhli,' 1."11' I<nieH'. vol R (1977) 45.
0~5) (1992) 174 eLR 455 at 4~9,
(386) Se" Koml'(lIIa I' IJjelke-Piw.'rul1 (19RZ) 15.1 eLR I(,R for a discus"inn of th~
.'LO[lC WId <lper:llinn 01' S 51 (.,xvi).
190 CLR 11 OF AUSTRALIA 97
agreed to unite In one indissoluhle Federal Commonwealth" (3K7). H Co. A
These words "proclaim that the Constitution of the Commonwealth of
Australia is founded on the will of the people whom it is designed to
unite and govern" (388). To repeat what Deane J and I said in
-
1996-1997

KR'_'<1ER

THe
Lcelll (389): COMMON-
WEALTH
"Implicit in that free agreement was the notion of the inherent
equality of the people as the parties to the compact."
In other words, the equality derives from the very existence of a
Constitution brought into existence hy the will of the people. save to
the extent thm the Constitution itsell" permits discriminatory treatment
in the sense discussed in these reasons.
When the Ordinance is analysed and plan::u in its historical selling,
is it reasonably capable of heing seen as providing a rational and
relevant baSIS for the discriminatory treatment of persons answering
the description of "Aboriginal or half-caste'''? No such basis would
survive analysis today. But, for the reasons advanced earlier in this
judgment, the Ordinance must he assessed hy reference to what was
reasonably capable of being seen hy the legislature at the time as a
rational and relevant means of protecting Ahoriginal people against the
inroads of European settlement. That is a matter of evidence. It cannot
he determined by reference 10 the pleadings. Hence the answer to this
clllnponent of the question can only be a qualified one.
Again. if hy reason of the application of this doctrine of legal
equality any of the impugned provisions were held invalid, this would
serve 10 mecl a uefellce founded on the Ordinance to a common la\'II'
claim for trespass or false imprisonment.
Application of limitation laws
I have read what Gaudron J has wntten on this aspect. It is
unnecessary to express any view on the matters canvassed hy her
Honour, save 10 agree that bccause the Commonwealth has not enacted
any statute of limitations relevant to the plaintiffs' claims and because
the Limitation Act 1981 (NT) confers power to extend the limitation
periods it fixes, it is inappropriate to answer Question 7(aj. Question
7(h) therefore does not arise.
Concl/lsion
It follows from these reasons that I would in euch maller answer the
questions reserved as follows:
Q I The legislative power conferred by s 122 of the Constitution is
restricteu hy an implied freedom of movement and association as

osn S~~ Capital DII/,liwwr,< Pt.' Ud, Allwa!iml CUl'iral '['errilo!'Y (l':l92) 177 CLR
24g al 274. p~r l:lr~nnan. Deane and Toohey JJ.
OSS) Quick ami GaITan. The Anwll<lud COIISliulIi''!1 (lr
Ihe lI"s/ralian Co",mon,,-e,r!/n
(IL)OI).p2s5
Os')) (1':192) 174 CLR 455 at 486,
98 HIGH COURT [ 1996-1997

IICmA identified in these reasons and hy the principle of legal equality.

j9%-1~97
But it is not possihle, at this stage of the proceedings, to say
whelhn the Ordinance or any of its provisions was thcn::hy
invalid.
TilE
O\M-"''-~
Q2 No.
WEAL til Q3 Each of the matters pleaded in par 29(u) and (el of the amended
ddence (Kruger) and par 26(d) and (ej of the amended defence
G"u~"m J (Bray) is relevant.
Q 4 Ducs not ansc.
Q 5 Does nut arise.
Q 6 Does not ansc,
Q 7 (a) Inappropnate to answer.
(b) Does not arise.

GAUDRO", J. The plaintiffs In thl:sl: actions are Aboriginal

Australians. All but one, Rosie Napangardi McClary, claim that, as
children, they were removed from their mothers and families and kept
In Abonginal reserves or institutions. Rosie Napangan..li McClary is a
mother who claims that her child, Queenie Rose, was taken from her.
The acts of which the plaintiffs complain arc said to have occurred
In the Northern Territory between 1925 and 1%0, It IS alleged that
they wcre catTied out hy Protectors appointed under the Aboriginals
Ordinance 1918 (NT) (the Ordinance!, and, after May 1957. officers
appointed under the Welfare Ordil/o/lce 1953 (NT) with the authority
or purp0l1ed authority of the Chief Protector of Ahoriginals of the
Northern Territory (the Chief Protector) or, after 5 April 1939, the
Director of Native Affail's of the Northern Territory (the Director) and
their <.lclegatcs.
The Ordinance was made by the Governor-General pursuant to
s 13(1) of the Northern Territory (Administration) Act 1')0 (Cth) (the
Administration Act) (390). It was amended from time to time.
mclu<.ling hy enactments of the Legislative Council for the Northern
Territory. It was repealed by the We!j(He Ordinance with effect from
May 1957.
Relevant provisions of the Ordil/ance and oj'the lYe/fare Ordinance
It is convenient to rekr to the Ordinance in its original form and to
refer tu specific amendments only when necessary.
Section 4 of the Or<.linance provi<.lcd [or the appointment of a Chief
Protector and Protectors to exercise powers and duties conferred on
thcm hy the Ordinance and by regulations made pursuant to S 07. By
s 6(1), the Chid' Protector was empowered "at any tim!.: to undertake

(390) Seclion 13( I) or Ihe Norrhern [errilory IAdminisl,."ri",,) ,\,,/ 1910 (Oh) provilkd:
"Untij the Par1iamelll mak~s olher provision for th~ governmcnt or the Territory.
Ih~ Gov~morGencral may makc Ordinances having the force of law ill th~
T~rrilOry .
190 CLR I) OF AUSTRALIA 99
the care, custody, or control of any Aboriginal or hall"-caste, if, in his He or A
opinion it [was] necessary or desirabll: in the interests of the
Aboriginal or half-caste ... to do so". He coukl, for that purpose, take
that person into custody (s 6(1. Until 1953, the Chief Protector, was.
-
19%-1997

,
KKLUER

rHE
by s 7(1), the legal guardian of every Aboriginal anu every half-caste
C"'''toN
child. As a result of amendments in 1953, the Director became the 'VEALTH

legal guaruian of all Aboriginal persons.

The Ordinance provided. In s I() (391), for Crown Lands to he made GoU""''')

Aboriginal reserves and, in s 13, for the licensing of mission stations,

reformatories. orphanages, schools, homes and other institutions
established by private cuntributions as Aboriginal institutions (392).
Section 16( I) of the Ordinance authorised the removal of Aboriginals
to and their uetention in reserves and institutions in these terms:
"The Chicf Protector may cause any Aboriginal or half-caste to he
kept within the boundaries of any reserve or Abonginal 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 Ahorlginal institution,
and to be kept therein."
Those who refused to be movcu or resisted the operation of s 16(1)
were, hy s 16(2), guilty of an offence. By s 16(3), persons who were
lawfully employed, those \vho held pennits to be absent from a reserve
or Aboriginal institution, females marricJ to and residing with
hosbanus "suhstantially of European origin or descent" and those for
whom, in the opinion of the Chief Protector, other satisfactory
arrangements existed were exempt from the operation of s 16( I).
It is necessary to mention s 67(1) of the Ordinance. It authorised Ihe
making of regulations, including, by par (c), regulations . 'enabling any
Aboriginal or half-caste child to be sent to and detained in an
Aboriginal Institution or Inuustrial School" (393).
With the rcpeal of the Ordinance in 1957, procedures were

(91) S,,,lion 10 was repealed by the I1horixinal\ Ol'dinance [924, However. the
ddinilions of Il.esen'e' and Aboriginat InstiIUlion' n:m~ined. they being
defined hy 1; ~ of the Ordinance rc.\pcctivcly, as f"ltow,: .. 'R~5~rv~' me~ns any
lands which, in pUlOuallce of any Ordinance or oth~r law now. heretofore or
herealier in forc~ ill the Territol)', :liT declared to J:,., a n"s~n-'~ for Aboriginals 01'
are n",;erv~J for Ihe use and benefit of the Aboriginal Ilativ~ inhabitants of the
Territory or for Ihe use and benefit of the Aboriginal inhahil;mts of the Territory."
'Ahoriginal Institution' mean, any Il,is,i"n ,tati ..m, reformalory, orphanagc.
.\cllOot, h"rn~ or other institution 1,)1' lhe bend,t, <:ar~ or prolection of thc
Ahoriginals declared by the Administrator 10 b~ all inslitution for the purpo,e., of
Ihis Ordinanec ,. These definilions w~r<: amended hom timc ({J time. hut not in
any r~Sp"cl relevant 10 thc i,sues in Ih",,, mallef';,
O'J2) l\ote thaI , I~ was amended by the Aborigi",,!., Ordi""nce 1941 such thai thc
refcrcnee to ""slahli,h~d by private cOlllributions"' was reTTlov~d
093) Th~ Ordinance wa,\ amended by th~ Abol'lRlnals Urdlnunu: (N" 2) 1953 and Ihe
words or half-casw" \\'e,-c omilleu rrorrl' 67(1)(,-),
100 HIGH COURT [1996-1997

Hen,A established by the Welfare Ordinance allowing for Aboriginals to be

1996-1997
~
made wan..ls. And by s 17( l) of the Welfare Ordinance, the Direclor
was empowered, if he considered il in the beSl interest of a ward, to
,
KRUGER
make orders for his or her removal to and detenlion in a reserve or
THE
em,,,,,,, institution (394).
'NEAI.TH
Constilutionl1! cl1I1[{enge to the vulidity of the Ordinance I1l1d cluims
for damuges
The plaintiffs claim that the Ordinance was at all times invalid.
Alternatively, they claim that ss 6, 7, 16 and 67, so far as the latter
provision conferred power lO make or amend removal regulations,
were at all times invalid. If need be, they also claim that s 13(1) of lhe
Administration Act was invalid to the extent that it rmrported to
authorise the Ordimlllcc or alternatively, to the e.xtent that it authorised
ss 6, 7,16 and lhe challenged operation of s 67. No challenge is made
to the validity of the Wf~farf Ordinance or any of ils provisions.
In par 29 of their amend~d statement of claim, the plaintiffs in the
first action assert that the Ordinance was invalid by reason of seven
distinct considerations which may be summarised as follows:
the Ordmance was not a law for the government of the Northern
Territory and, thus, not authorised by s J 22 of the Constitution;
it exceeded the legislative power of the Commonwealth in that
that power, whether conlcrred by s 122 or otherwIse, uoes not
extenu to laws ueslroying racial or ethnic groups, their language
or culture or to laws <luthorising genocide and crimes against
humanity;
it purportedly con felTed juuicial power contrary lo the provisions
of Ch III of the Constitution;
it was contrary to an implied constitutional freedom from removal
<lnu detl:ntion without due process of law;
it was conlrary lo lin implied constitutional right anu/or guarantee
of equality;
it was contrary to an implied constitutional right to aod/or
guarantee of freedom of movement and association:
it was contrary to s 116 of the Coostitution.
The same assertions are made in par 26 of the amended statement of
claim in the second action.
The plaintiffs further contcnd thaL by reason of the invalidity whieh
they asserl, they are entilled to recover uamages frum the Common-
wealth. They say they are entitled to damages for causes of action

(194) Sedion 17(1) provi[kd: "Where the Direclor nmsider, that il i" in lhe best
intere,ls 01 a ward. he may (aj take the ward into hi, cU5tody: (b) JlI!horize ~
p"r50n (0 !ak" lhe wJrd into cll,tody On bdlJlf of th" Director; (c) order lhal Ihe
ward he removed to, and kepI within, ~ res,,'"'' or in-,liIU(ion; (d) order lh"l the
ward he kepI within a rcsnvc or institution; and {e) order lhal lhe w[lrd be
removed from On~ re,erve or in<,tilulion (0 Jnother rc,crve or institution.-
190 CLR IJ OF AUSTRALIA 101

recognised by the common law and, also, for breach of their He "I' A
1996,1997
constitutional rights.
The Commonwealth's answer ,
KRL.'''ER

So far as is presently relevant, the Commonwealth denies that the THE

COMMON_
plaintiffs have any claim to damages. It also asserts, in par 29(dl of its "'ML1H
amended defence in the first action, that, if there are constitutional
freedoms as claimed by the plaintiffs, the Ordinance was not contrary
to those freedoms in th<lt:
"(i) The Ahoriginals Ordinance was enacted and amended for the
purpose of the protection and preservation of persons of the
Aboriginal race; and
(ii) at all material times tbe Ahoriginals Ordinance was cupable of
being reasonably considered to be or alternatively was appropriate
and adapted to the achievement of that purpose."
The Commonwealth further asserts, in par 29(e) of its amended
defence in the first action, that "the constitutional validity of the
Aborif:inals Ordinance must be considered by reference to standards
and perceptions prevailing at the time or its enactment or operation
and not by reference to contemporary standards and perceptions" .
The same mal1ers arc pleaded hy the Commonwealth In its amended
defence in the second action.
Qlle~-tion.l" re.l"frl'ed
In each action, the Chief Justice has reserved seven questions for the
consideration of the Full Court. In each action, questions 4, 5 and 6
only arise if question 2 is answered in favour of the plaintiffs. As will
later appear, I am of the view that question 2 must be answered against
them in each action and, thus, it is unnecessary to make further
rercrence to questions 4, 5 and 6.
In the first action, questions I, 2, 3 and 7 are as follows:
"1. Is the legislative power conferred hy section 122 of the
Constitution or the power to enact the lAboriginals] Ordinances and
regulations ... [made thereunder] so restflcted hy any and which or
the rights, guarantees, immunities, freedoms. or provisions referred
10 in paragraph 2'.) of the Amended Statement of Claim as to
invalidate the Acts, Ordinances and regulations [which
purportedly authorised the acts of which the plaintiffs complainl'!
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 hy -
(a) an officer of the Commonwealth: or
(bl a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in
IOrt or for breach of contract) against the Commonwealth
sounding in damages?
102 HIGH COURT [1996-1997

II e OF . '> 3. [f yes to question I or question 2, are any and which of the

-
19%-1997

KRl.";ER
mailers pleaded in subparagraphs (d) and (e) or paragraph 29 of the
Amended Defence relevant to the ex.istence. scope or operation at
any material time of any and which of the rights. guarantees.
"
THe
immunities, lreedoms and provisions'!
COM"""-
WEALTH 7. On the facts pleadet.! in paragraphs 1 to 6 of the Amended
Statement of Claim ~
(a) arc the PLllntiffs' claims (or any of them) for t.!amages for
wrongful imprisonment and t.!eprivation of liberty statute
barred'!
(b) by what statute'!"
Paragraphs I to 6 of the amended statement of claim record details of
the removal of the plaintiffs in the first action and, in the case of Rosie
Napangardi McClary, her daughter and then detention in specified
Aboriginal reserves and institutions.
The questions reservet.! by the Chid Justice in the second action are
the same as those reserved in the first, save for n::fcrences 10 different
paragraph numbers In the plaintiffs' amended statement of chum ant.!
in the Commonwealth's amendet.! ddence.
Section 122 of the Constitution
It IS convenient to deal first with the argument that the Ordinance
was not a law "for the government of [al Territory" and thus not
authorised hy s 122 of the Constitution. The argument proceeds trom
the clearly correct premise that the Ordinance authorised gross
violations or the rights and liberties of Aboriginal Australians to the
proposition that, all that account, it was t.!isproportionate 10 anything
that might reasonably be required for the government of the Northern
Territory and. then, to the conclusion that it was not a law authorised
by s 122,
Thel'e are occasions when it is necessary to identify the purpose or a
la\v, either because purpose IS the criterion of its validity (for example.
if it is said to be a law for defence) (395) or invalidity (for example, ir
the purpose of a State law is to discriminate against a resident of
another State) (396) or because some specified purpose is said to
provide the requisite connection with a head of legislative
power (397). Purpose is "ascertained by considering the true nature
and operation or the law and the facts with which it deals" (39X). And

(395) ('on,liIUlion, S 5 I(vii. See. eg.. SlenlUluse r C"lemon (1944) 69 CLR 457 at 47 J
(3%) Conslilutioll. S 117, NNe Ihat i1 ;, arg:uahle [hm s 117 is nOl restricted to Sl~te
taws
(397) See. eg, Bank o{'.VSIV \' fhe CommOllweallh (194~) 76 CLR I at _,54, per Dixon.l:
ViC/or/a I' Jhe Commonweallh (1957) 99 CLR 575 at 614. per Dixon CJ:
lVal;om,'de Nev.'.' PI)' Lid v Writs (l9Y2J 177 C'LR I ul 27-2~. per !'>'lason CJ: Jt
9,. per Gaudron J: at 101, per !'>kHLJgh J
I-"JBl AI'I/iw' rille.< & Co PI., !.ut \'Vq:ewbte Sad.t Cmll/llll1ee (19<1-5) 72 CLR.17 at liS.
pn LmhulIl CJ.
ltJOCLRI1 OF AUSTRALIA 103

in that exercise, it is sometimes convenient to ask whether the law In Heo", '"
199n_t 997
question tS appropriate and adapted or, which is, in effect. the same
thing, whether it IS proportionate to the purpose which it is said to
serve (399). At le<lst thnt is so where the issue IS whethcr the law in
THE
question offends a constitutional prohihition (400). On the other hand, C,,,,,,,,,,
where the issue IS whether it has a purpose providing a relevant WEAl.TH

connection with a head of legislative power, the queslion is whether it

is reasonably capable or heing viewed as <lppropriate and adapled to
some purpose connected with the subject mattcr of thai power (401). If
it is not appropriate and adaptcd to the purpose in qucstion or, if it is
not reasonably capable or heing so viewed, where that is the relevant
test, it can he taken that it has some other and different purpose (402).
However, that is an exercise which is undertaken only if purpose is in
issue and, then, only if the purposc of the law is not discernible from
its terms or its context.
It may he taken that s 122 of the Constitution has a purposivc
element in that it authoriscs laws "for the government of [a]
Territory" (403). That purposive clement has the consequence that nol
every law that operates in a Territory is, to that extent, a law for the:
government of that Territory. And that is so nOlwithstanding that a law
may have a dual character, in the sense that it is enacted pursuant to
two separate heads of legislative power (404). It may be that a law
whieh serves some distinct constitutionnl purpose (for example.
defence) may prove, on analysis. to have no other purpose and, thus,
not to be a law for the government of a Territory, notwithstanding that
it operates in a Territory or, indeed, only in a Territory. Similarly, it
may he that a law which operates throughout Australia with re:spect to
some specific rnalte:r, ror example, tax, is not sufficiently connected
with the Australian Capital Territory or the Northern Territory to be
properly classified as a law for their government.

IJ99) Nmionwir!e Nnn PI'\' Ltd \' ,fills (1')92) 177 CLR I at 9l, per Gaudron J,
(4()0) ,'Variollwi<!e News I'r\' Ltd v Wills (l'l92) 177 CLR 1 at 95, per GaUljmn J:
Australlall ClIplllll '/elevisioll Pry Ltd V Tile Commo!lweallh (1992) 177 CLR 106
at 14l. p~r Mason CJ: at 150-151, 157, per I:lrennCUl J: at 2t7218, per Gaudron J:
Theoplwmw.\ '" Herald & Weekly Time.< Ltd (1994) 1~2 CLR 104 at 152. per
Brcnn~n J; f <IIll(e ,. AI!srmllan lJroadcastinu C()!'l'()rwiOlI (1997) 189 CLR .~20 at
V,I-562.
t4(1)S()lrlh AU.llrali,,)' T"''''eI" (1989) 1M, CLR 161 at 165, pn Wilson, Dawsoll.
Toohey and Gaudron JJ: /'i""limvide Ne"'.I' P/I' '.ul v Wills (1992) 177 CLR I at
30, per I>lason CJ: Cunliffe I' The Commmmw!lrh (1994) 182 CLR 272 at 300, per
Masoll CJ: at l~8, per Gaudmn J.
(402) See Curi/ifle I' The Commonwealth (1994) 182 CI.R 272 at 388, pn Gaudron J,
(40.1) d I"II/.<hed Il.ake (\958) 9'1 CLR tJ2 at 141. pC"[ Dixon CJ. where it is said that
"[tlhc wonh thc government or any Territory' of course describe the subject
marter of the power"
(4M) See ikwn and AnfiOlIJlCfl'S "'-qlliry Auociallofl I' FOlltml<! Film" Pty Lid (1982)
151l CLR 169 at 192-194, per Stephen L Re F: Ex porte F (1986) 161 eLR 376
JI lH7. pCI' Mason and Deane J1: Leask" The Commonwealth (199(,) 187 el.I{
579 at (,21-622, per Gummow J
104 HIGH COURT [1996-1997

HC"F A The purposive element of s 122 notwithstanding, no question arises

1~%1997
in this case with respeet to proportionality. Whatever the precise
nature of the power conferred by s 122 (405) and whatever the
differences between that pO\ver amI the power conferred by s 51 of the
THE
Constitution (406), a law which operates on and operates only on
COM"".'
W~ALI H p~ople, places and events in a Territory and which scrVl:S no distinct
constitutional purpose apart from the governmcnt of a Territory is, in
my vicw, clearly a law for the government of that Territory. TIle
Ordinance was a law of that kind and, thus, it was authorised by s 122
unless that provision is subject to one or other of the constitutional
limitations for which the plaintiffs contend.
Immunity ji"om fail'S allthorisins acts of Renocide: readillK dOIVJl of
.\' 122
Although they asserted a somewhat wider immunity in their
Statements of Claim, the plaintiffs' oral and written arguments wen::
limited to the contention that thc Ordinance was invalid in that it
authorised acts of genocide contrary to Art TI(d) and (c) of the United
Nations' Convention on the Prevention and Punishml:nt of the Crime
of Genocide (the Genocide Convention), They argucd that the
Genocide Convention gives e:>:.pression to an enduring peremptory
norm of international law amI that s 122 and other constitutional grants
of legislative power must he construed on the basis that they were not
intended to confer power to make laws authonslllg acts contrary to that
norm.
"Gl:nocide" tS d(;fined in Art II of the Genocidl: Convention as
follows:
genocide means any of the following acts commitleu with
Intcnt to destroy, in whole or in part. a mtional. clhlllcnl, racial or
rcligious group. as sueh:
(a) Killing members of tIle group:
(b) Causing seHOUS bodily or mental harm to members of the
group:
(cl Dcliheratr.:ly inlllcting on the group conditions of life
calculated to bring about its phySIcal destruction in whole or in
pnrt:

(405) A:; to whi~h. ,,,e A, ..'H,l1iwl ,"'",imUlI Ainmvs Pry r,d r' 'fhe Co",,,,,,,,,,eallh
(194';) 71 CLR 29: L",nsiwd,' U,/.:(' (1958) 99 CLR 132: Sp""l1 r 11"'-11I1'.' (i')(j))
It4 eLR 226: [eon '1,,,, v The Cmnm(lmte"llh (1'16'1) II') eLI{ )(,4: n'f"lat n 1
& AI'I'!irlllces PI\' /./(/ \' Flltumer (1'171) 125 elR 591. R,.,.wld Ud I' Grav
(1976) I.B CLR 603. Norlhem umd Cmmcill' Th,. C()/lUlWIHH,,,111i (InG) 1(,1
eLI{ I. AU.<lrali"" C"l'iwl Telel'isu!II PI." Lid. 'rile CfIIlllII"m"~"!lh (1992) 177
CLR 106
(-'106) Compare, eg, th~ view oi Diwn C1 in Lamslred.' Like (1,)5~) <)<J eLf{ 132 Wilh
that ~xpr~ss~d by Harr,"ick CJ in Capil,II 'rv & API'!i"w",\' Ply rid r' F,rlu'ner
(1971:,125 CLR 591 at 5'19600, S~". g"n"rJ.lly. A'I.<I""t,wl C"f'iwl IeI('\'j"illll I'I\,
Lui v 1/1" ("mill/Wm"",lir/r (1992) 177 CLR 106 at 222223. paGaudron J.
IYO CLR 1J OF AUSTRALIA 105
(d) Imposing measures intended to prevent hirths within the H C,l> A
1946_14n
group;
(e) Fon:ihly transferring children of the group to another
group
THE
The notion of genocide emhodled in the definition in Art II of the CO""",,
Genocide Convention is so fundamentally repugnant to hasie human \I'F..\I,Tll

rights acknowledged by the common Jaw that hy reason of well Gaud"," J

settled principles of statutory interpretation, an intention to authorise
aets falling \vithin that definition needs to he dear beyond doubt
hefore a legislative provisIOn can be construed as having that
effect (407). Ordinarily, however, different considerations apply to the
interpretation of constitutional uocumenLs.
It is settled doctrine that a constitutional grant of power is to he
construed with allthc generality which the words med admit" (408).
Moreover because of the democratic principles enshrined in the
Constitution, constitutional powers arc not to be read down 10 prevent
the possibility of ahuse (409). At least that is so in relation to the
powers conferred by s 51 of the Constitution, It was said with
reference to those powers, III Amalgamated Society of EIIKineers v
Adelaide Steamship Co l.td (the En/?ineers' Case) (410), that:
'"If il he eonn:ivable that the representatives of Ihe people of
Australia as a whole would ever proceed to usc their national
powers 10 injure the people of Australia considered sectionally, it is
certainly within the power of the people themselves 10 resent and
reverse what may be done."
If territories arc put to one side. it may be reasonahle to say, as was
said by Professor Harrison Moore (411) and as has often been

14(7) See ['filler \' IHinalwlI 1190H) 7 CLR 277 at 30el-305, per O'Connor J: Ex parle
Wahl! aJ!d 1011115011. In re YilIe< (1925) 37 CLR 36 at 93, per Isaacs L S(lrby \.
The CO/lllIIlHl\\flllTl1 (19H,') 152 CLR 281 at 289290_ per Gibbs CJ: al 309. 311,
per Mason. Wilson and Da"i'On JJ: Balog r Independelll C"mmi"sio" AgainST
CorruptiOIl (1990) t6<J CLR 625 at 635-636: Rmp/IO l' WeSTern Au.'tmlia (1990)
171 CLR ! at 18, per Ma.~on CJ. Dean",. Dawson, Toohey, GaUllrun and
:>.-kHugh JJ: Corpurale Affair" C"mmisri"J! fNSW) r Yuill (l<J9J) 172 CLR 319
at 322. pn Brennan J; al 33t, per Dawson J: al 331;. per Gaudron J: at 348. pn
McHugh J: Coco \'/he QI,een (19<J'1) 179 CLR el2? at 437438, per Ma.\on CJ.
Brennan, Gaudrqn and McHugh JJ: at 446. per o"an", and Dawson JJ,
(408) R \' Public Vehicles Licellsillg Appe,,1 Tribunat (Tas), Ex p"rlf AU.l'lrali"lI
,Varlml,d Ai,w"y" Ptv l.ld (1<)64) 11:\ CLR 207 at 225, See '11>0 Jumb/lrllw C(I"I
,l,line, I'lL., Vic/"r;"" C(lal Miners As,w,i"/i,,n (1908) 6 CLR 309 at 367-368, per
O'Connor J: R r Co/dill/lit, fx {Jarle AU,'tUlfill" Social Wettiire Urli"" (1983) 153
eLR 297 at 313-314; The CO",mOIlIl'<'allh I' T"sm"nia (Ihe 10.SJJ1I1"i"" nam Case)
119H}) 15H CLR I at 127, per 1\-la.~on J
(409) Am"lgalll<JI<,d S"cietv ot' Ellgilleer5 ,. Adel"id,' Steam,hip C" Ud t 1920) 28 CLR
129 al 151-152, per Knox CJ. Isaae", Rkh and Slarke Jj,
(410) (1 nO) 28 CLR 129 at 151152, per Knox CJ, I'aacs. Rich and Slark~ 11,
{411) lhe C01l.<Iimiion ot"he Cmnlll"lJIl'ealiit o{AI/slmlia, 1,1 cd {1902), p :,29.
lO6 HIGH COURT [1996-1997

He"F A repeated (412) that, under the Australian Constitution, '"the rights of

-
1996-1997

K"''';F.R
individuals are sufficiently secured by ensuring, as far as possihle, to
each a share, and an equal share, m political power". However. the
Constitulion ensures no share in political power to the people of a
Tee Territory. 111cy have no constitutional nght to participate in elections
COMMO"-
WTAl.n, for either House of Parliament: they have no constitutional right to
self-government. Such rights as they have in these respects arc purely
G,ud"," J statutory and, so far as the Northern Tenilory is concerned, were of a
lesser order than those enjoyed by other Australians during the penod
\vith which these cases arc concerned (413). And only smce
1977 (414) have persons resident in a Tenitory had the right to vote in
a rdercndum and, then, only if there is a law in force allowing for the
Territory's representation in the House of Representatives (415).
At least to the exlcnt that the Constitution makes nD distinct
provision for the parliCJpalion of the people of a Tenitory in any
electoral processes, it may fairly be said that it allows for terntories to
be ruled as Commonwealth fiefdoms. That being so, the considerations
which require that other granls of legislative pO\ver be construed
without regard to possible abusc havc no part to play in the
construction of s 122. Rather. I would consider it much the beller view

(412) S~~, ~g. Atromn'-G"",,m/ (Ohl. f..r rd McK'n/ay \' '!'Irc COI!IJJwll\\cal,h (1975)
135 CLR I ,It 24. p~r R~rwick CJ: at 46. per Gibbs J; /'/<IIio/iwide ,VCll'.' PIl: rid,
Will.l (1992) 177 CLR I ~t 43, per Rr~nnan J: iluslruliuJi Capllu! Tdfl'i.,ioll P,r
Lid v Tlie Commomwo!lh (199~) 177 eLR 106 at IYI-I'-lIJ. per Mason CJ. at 182,
per Dawson J. Thc0l'hwwu.\, Hera/d & Weckl., Time,1 Lid (1994) 182 CLR 104
at I':JJ, per Dawson j,
(41.') Notwithstanding: (hat th~ Nonhenl Terrilory Represelllarillli Ael 1922 (Oh)
provid~lI ror th~ deLlion or a r~prl"l'ntntive to th~ !!0U\~ of I<~pre,enlativ~,. il
W,,, not until 1968. when that Act was amended by s 4 of the "'oullem Terr;lorr
Re/nes"mmio" !lei 1968 (011.1, thm "[tlhe member "'pr~s~nling thc No"hcrn
Turilory [was given] all the powers. inmllmiti~, and pri,'ilcg~s or a m~mber
representing an Electoral Divi,ion of u Stuk and the reprc.\cmation of the
:--Ionhcrn Tcrritory Iwas to] b~ on the sam~ t~rms ;C; [he r~pn:,cntation of sllch an
ElccJoral Divi,ion se~, G of the Norrhem Ternwn Rel'rf.lUlllilion Acr In:!
(Cth). Th~~ wa, no Senate repr~,~lllation at ~ll for lhe r-:OIth~rn TerrilOf)' prior to
th~ COlllmcnc~mell1 of th~ SCn(/le rRepresemm'o!l or Terriloriesi ACI 197.1 (Oh)
(Scction 6 of the ./y'orlhenr Tcnilon Rq>resemario" ACI 192210h) and lh~ SPIlme
IRepreselllalioJl ol Terrirol'io) An 1973 ICth) were held to b~ <:on,titutionally
"alit! in Quum1"",' \' '['ite C",1/mOI[lI'cll!lh (1977) I.W CLR 585.) Th~ ~nti[kl1lcnl
of Ihe peopk of the "onhem T<:rrilory tu panicipale in feder~l el~di{)n, is now
r~gululet! hy ,,'-I()-54 of the C'rIl!l"""" .. e"llh F./e<:lowl An 1918 (Oh), Self-
government was g:rant~d [0 [h~ r-:orlh~m TerritOl)' by the ;VoJ'/llem Terr;lOrI' rSdl-
Gm'emmelll) An 197H (Oh).
(414) S~dion 2(a) of th~ CO/lsI;I"r'"" AlrerUl;(JI! (fI~terendllmsJ 1977 (Oh) altered:; 128
by insetting th~ won!> "and T<:rrilory" in both places to which refen;nCl' is made
to lh~ e1~dor, "in ~ach Stat~"
(415) The final p~J'agr~ph of s 128 or lh~ C"n.stitution, inserted by s 2(h) of the
C",lsrilullurl A!rcnuio" IRe/ere"d",,,st 1977 (Ohl is as follows 'In this section,
'Terrilory' lIleans any T~n'itory rdelT~d to in s~cli()n one hundred and (wenty-Iwo
of thi, Constitution ill J'~,p"'<:[ of which there i, in force ~ law ullowing: it,
represent~tion in lh~ H"u,e "I' Rl"pr<:s~nta(i\ies.
190CLRI] OF AUSTRALIA 107

that s 122 is to be construed in light of the fact that, unlike other H C"f'A
1996-1997
Australians, p~rsons resident in a Territory have no constitutional right
to participate in the democratic processes and, thus, have no protection
on that account in the event of an abuse of power. And, I would
THE
consider that that approach requires that s 122 should he construed on COMMON-
the basis that it was not intended to extend to laws authorising gross WEALTH

violations of human rights and dignity contrary to established

principles of the common law.
As will later appear, I am not persuaded that it is correct to say that
s 122 stands wholly apart from eh III. Nor do I think it correct to say
that, eithL:r because s 122 confers power of a different order from that
conferred by s 5 I or because it is not made suhject to the Constitution,
it is not subject to any of the express or implied constitutional
limitations which confinc the legislative power conferred by s 5l.
However. if eithcr of those propositions is, to any extent. correct that
is an additional reason for construing s 122 on the basis that it docs
not extend to laws authorising gross violations of human rights and
dignity.
Were it necessary to decide the matter, I would hold that, whatever
the position with respect to other heads of legislative power. s 122
docs not confer power to pass laws authorismg acts of genocide as
defined m Art II of the Genocide Convention. The acts encompassed
in that definition are so fundamentaJly abhorrent to the principles of
the common law that, on the approach which I favour, it is impossible
to construe the general words of s 122 as extendmg to laws of thal
kind. However. the question whether s 122 is so confined docs not and
cannot arise in this case.
Although it may be taken that the Ordinance authorised the forcible
transfer of Aboriginal children from their racial group, the settled
principles of statutory construction, to which reference has bcen made,
compel the conclusion that it did not authonse persons to remove those
children "with intent to destroy, in whole or in part, [their] racial
group, as such". It follows that the Ordinance did not authorise
m.:ts of genocide as defined in the Genocide Convention and, if there is
a limitation of the kind which I favour. it was not infringed by the
Ordinance. It also follows that, subject to a consideration of the
eXistence of a time bar, if acts were committed with the intention of
dL:stroying the plaintiffs' raelal group, they lTlay be the subject of an
action for damages whether or not the Ordinance was valid.
Chapter III of the Constitution and the claimed guamnfee of due
process
The argument with respect to Cll III of the Constitution and that
with respect to the asserTed freedom from detention except pursuant to
due process arc closely related. It IS convenient that they be dealt with
together.
The argument based on eh fIE starts \Nith the proposition that,
subject to certain exceptions which do not include powers of the kind
108 HIGH COURT [1996-1997

He OF A here in issue, the power to deprive people of their liberty is judicial

1996-1~97
power. Il is then said that. as the Ordinance was made pursuant to a
~

KRU(;ER law of the Commonwealth, its attempt 10 confer power on the Chid
, Protector or his delegate 10 deprive Aboriginal people of their liberty
THE
was an attempt to confer on them the judicial power of the
COMM""-
WEAl-TIl Commonwealth. If that is so, the plain lilTs afC correct in their claim
that the Ordinance was, to that extent, invalid. In this regard, it is
GoLlcln"'! sufficient to note that it is well sl:lllc:d that ell III requires that the
Judicial power of the Commonweallh he vcstcu only in the courts
named amI specified in s 71 of the Constitution (416). However, the
plaintiffs face considerable difficully In making good the two
propositions on which they rest their clmm that the Ordinance
offended the requirements of Ch III.
It was held in R v Bernasconi (417) that s 80, which IS In Ch III and
which requires trial by jury for indictable offences "against any law of
the Commonwealth", does not apply to offences created by a law or
by an Ordinance made pursuant to a law enactcu under s 122 of the
Constitution. Similarly, it was held in Spratt v Hermes (418) that
courts may be created under s 122 to c:>:.crcisc jurisdiction with respect
to events in or concerning a Territory without satisfying the
requirements of s 72 of the Constitution. Those uccisions have
somclimes heen said to rest on the proposition that Ch III "has no
application to the tcrrilones" or "does not extend to the
Territories" (419).
In Spratt, Barwick CJ declined to accept the full extent of the
proposition that Ch III has no application to territories (420). Instead.
he was of the view that the deCISIon m Bernascuni was correct hut on
the ground that s 80 applies only to offences against laws enacted
pursuant to s 51 of the Constitution (421), And In 5prau his Honour
held that s 72 applies only to federal courts, that is "couns created oy
la\\'s maue in pursuance of the 'federal' legislative powers contained in
s 51 of the Constitution". not courts created pursuant to s 122 (422).
There arc difficulties with his Honour's approach to ss 72 and gO in
that it involves reauing limitations into those provisions which their
tcnns do not require.
There are, however, even greater difficulties with the view that

(4t61 R L' Kirbv; Ex pO"lf /joilermakers' S"eien 0/ ..111J1wii" (I ')56) ')4 CLR 254.
(417) (1915) 19 CLR 629.
(418)(19651114CLR226,
(419) .'vimm l' Hermes (1%5) 114 CLR 226 at 24-'. per Barukk CJ; al 253. per Kino J.
rderring- to R)' Bernasconi (1915119 eLI{ ('2L), See also POrler L' Tile Kill/{, f,'x
Iwrle y"" (1926) 37 CLR 432. Federa! C"pll,,1 COlI/mis,liol! t' LoriHim BI/ild"'/: &
/rl'-e.<lmew Co I'ly Ud (1929) 42 CLR 582; W(l/ers \. The Commo""'eoilh 11')51)
82 CLR 188
(420) 5'''011,' Hennes (I '!(i.'i) 114 CLR 226 at 245,
(.+21) 51'11111,' lINme" (1965) 114 CLR 226 at 244,
(422) Sprwi ,'Hame,1 (1965) 114 CLI{ 22(, al 242-243
190 CLR 1J or AUSTRALIA 109

Ch III docs not extend to the TeITitories, Tn my view, there is no HCOFA

convincing reason for treating the words "ltJhe judicial power of the
Commonwealth" in s 71 of the Constitution as not extending to the
determination of justiciable conflicts by application of laws enacted by
-,
19961997

KRU(;ER

THE
the Parliament of the Commonwealth pursuant to s 122. However, it
C"""ON-
may be that different considerations apply to laws enacted by the WEALTH

legislature of a self-governing Territory (423). And T do nOl sce why

thc exprcssion 'courts created by the Parliament" in s 72 of the
Constitution does not include courts created by the exercise of
legislative power conferred by s 122. Again. different considerations
may apply to courts created by laws enacted hy the legislature of a
self-governing Territory. However, it is unnecessary for me to express
a concluded view on these matters for 1 am of the view that the
plaintiffs cannot make good their first proposition, namely, th,ll the
power to deprive people of their liberty is neccssarily judicial power.
The plaintiffs rely for their argument with respect to Ch III on
statements in Cflu Khen~ Lim v Ministerfor Immigratio/l (424) which
point in favour of a broad immunity from detention in custody save by
order of a court in consequence of a determination of criminal guilt.
Thus, it was said in the joint judgment of Brennan. Deane and
Dawson JJ that (425):
"It would, for example, be beyond the legislative power of the
Parliament to invest the Executive with an arbitrary power to detain
citizens in custody notwithstanding that the power was conferred in
terms which sought to divorce such detention in custody from hoth
punishment and criminal guilt."
And subject to certain exceptions, their Honours expressed the view
that "the citizens of this country enjoy, at least in times of peace, a
constitutional immunity from being imprisoned by Commonwealth
authority except pursuant to an order by a court in the exercise of the
Judicial power of the Commonwealth" (426). Their Honours explained
the immunity on Ihe basis that' 'the involuntary detention of a citizen
in custody by the State is penal or punitive in character and, under our
system of government, exists only as an incident of the exclusively
judicial function of adjudging and punishing crimlOal guilt" (427),
AITest and custody pursuant to waITan! pending trial, detention by
reason of mental illness or infectious disease, and punishment for
contempt of Parliament and for breach of military discipline were
recognised by Brennan. Deane and Dawson JJ in Lim as exceptions to

(42.,) See C"pilat D"pliea/"I"s Pr, Ud I' A".<lrali"" C"pil(1/ Terri",'." (t992) 177 CLR
24H.
{--124j(1992)176CLRI
(425) fjm (1992) 176 eLR t at 27
(426) Lim (19921 176 CLR I at 2H-2\.!,
(427) Um (1992J 176 CLR I at 27
110 HIGH COURT [1996-19lJ7

HCnl-A the immunity which their Honours would there acknowledge (428).
lY%-19Y7
And of course, it was held in Lim that aliens might lawfully be
KRu;eR detained in custody for the purposes or expulsion and deportation and.
also, for the purposes of the receipt investigation and determination of
THE
CO".\1(lN-
applications for admission to this country (429).
WEALTH At one leveL the existence of so t11<lny acknowledged exceptions to
thl: immunity for which the plmnlills contend and the fact that those
(iauJ,,,n J
exceptions serve so many different purposes tell against the
implication of a constitutional rule lhat involuntary detention can only
result from a court order. AntI that is so even if the supposed rule is
one that is subject to exceptions. Of greater sigmficance, however, is
the consideration thm it cannot be said that the power to authorise
detention In custody is exclusively judiCial except lor clear exceptions.
I say elear exceptions because it is difficult to assert exclusivity except
within a defined area and, if the area is to be defined by reference to
exceptions, the exceptions should be clear or should fall within precise
and confined categories.
The exceptions recognised In Lim are neither clear nor within
precise and confined categories. For example, the exceptions with
respect to mental illness and infectious disease point in favour of
broader exceptions relating, respectively, to the detention of people in
custody for their own welfare and for the safety or welfare of the
community. Similarly, it would seem that. if there is an exception in
war time, it, too. is an exception which relates to the safety or welfare
of the community.
Once exceptions are expressed in terms involving the \.velfare of the
individual or that of the community. it is not possible to say that they
are clear or fall within precise and confined categories. More to the
point, it is not possihle to say that. subject to clear exceptions, the
power to authorise detention in custody is necessarily and exclusively
judicial power. Accordingly, I adhere to the vIew that I tentatively
expressed in Lim, namely, that a law authorising detention in custody
is not, of itself, offensive to Ch [[l (430).
Moreover, the acknmvledgmcnt by Brennan, Deane ano Dawson JJ
in Lim that the immUnity there enunciated docs or may not operate in
war time is. In my view. inconsistent with the nOlion of a general
immunity from involuntary detention deriving from Ch III of the
Constitution. The defence power, as with the power to legislate with
respect to the other mallers specificd in s 51. is "subject to [the]
Constitution". It is, thus, equally subject to the limitatiuns deriving
from eh III as is the power to legislate with respect to those other
matters.
[ do not douht that there is a broad immunity similar to, but not

(~18) !.im (1991) t 7(, CLR I at 28

(429) l.im (1992) 17f, CLR I
(430) LIlli (l(!~2) 176 eLl{ I al 55,
190 CLR I] OF AUSTRALIA III

precisely identical with that enunciated by Brennan, Deane and HCo,A

Dawson JJ in Lim. In my view, however. it does not derive from
Ch III, Rather. I am of the view that the true constitutional position is
that, subject to certain exceptions, a law authorising detention in
-
1996_1997

KRUGF.R

THE
custody, divorced from any breach of the law, is not a law on a topic COMMClN-
with respect to which s 51 confers legislativc powcr. The defence WEALTH

power may be an exception to that proposition (431), And the

proposition does not extend to laws with respect to quarantine (432) or
laws with respect to aliens (433) and the mJlux of crimmals (434), It
may be that an exception should also be acknowledged with respect to
the race power (435). It IS however arguahle that that power only
authorises laws for the bcnefit of "the peoplc of raJ race for whom it
is deemed necessary to make special laws" (436),
If, as I think, the legislative power conferred by s 51 of the
Constitution does not extend to authorise laws conferring a power of
detention divorced from criminal guilt, unless they arc laws with
respect to the topics or, perhaps, some of the topics to which reference
has been made, that IS another reason ror concluding that there is no
simil<lr immunity deriving from Ch lll, On that basis, there is no
necessity for any such implication. At least that is so with respect to
the powers conferred by s 51. However and no matter the position
with respect to s 51, it can only he said that s 122 does not authorise
laws for the detention of persons in custody, divorced from a hre<leh of
the law, if that provision is subject to some express or implied
lirnimtion in that regard. Because. It1 my view, the power to authonse
detention in custody is not exclusively judicial in character, Ch III is
not the source of any such limitation. It follows that the Ordinance was
not invalid by reason that it purportedly conferred judicial power
contrary to Ch III of the Constitution.
The plaintiffs' argument with respect to an unplied right of clue
process tS closely related to their argument based on eh III of the
Constitution, The right to due proccss IS asserted in the amenclecl

(431) Constitution, S 5l(vi)

(432) Constitution, s Sl{ix)
(433) Constitution, s 5I{xix).
(434) Constitution. s SI'ixxviiiJ.
(4.,5) Constilulion. s Sl(xxvi),
(436) Sec Ko" .... arw I' Rjelkp-P~lnSetl (1982) 153 CLR t68 at 242, per Murphy J;
cf at I H6, per Gibbs CJ; at 209. per Slepb",n J; at 244, per Wibon J, See ~Jso nle
C,m",wIllH'(lIl!t., TiismaJlia (lh~ TtlSlII<IIliwl DC/III Cmc) (l983) 158 CLI<. I at 242,
pn Br~nnan J: Jt 273. per D"ane J. Om Kllerll{ Lim \' Mi/lisla Fir Imllligralilill
(1992) 176 eLl{ I at 56, per Gaudron J. NOk. also. the view, exp"",,,d by [)~ane
and Toohey JJ in Lalil \. Tile Commonweallil (1992) 174 eLR 455 aI4S'J. that "a
kgislative power to make special law, with respeLl to a parti~ular ~la" of
pe",o",. '''eh "" aliens (Constitution. s 5I{xix) or persolls of a partitular rate
(" 51(xxv;), nee~"arily authoris~s dis~riminatory Ireallnem of mcmocrl; of that
cla." to the ntent whieh i, r~"-\onably capJble of being seen JS approprimc Jnd
adapted to thl' cirCU[Jbtanu, or lhal lTle",be",hip"
112 HIGH COURT [1996-1997

He OF'" statements of claim as "an implied constitutional right to freedom

-
19%1997

l(R\'<,FR
,
from and/or immunity from removal and subsequent detention without
due process of law in the exercise of the judicial pO\ver of the
Commonwealth conferred in accordance with Ch III of the Consti-
l"Il~
COM.\10N-
tution or of judicial power under laws of the Commonwealth".
WEAHH There are two aspects to the asserted right of due process. The first
is. In essence. another way of putting the argument based on Ch 111.
G.uJ"m J Accordingly, it need not be further considered. The second IS an
alternative to the argument based on Ch III. It proceeds on the basis
that. suhject to exceptions which do not eXICnd to the Ordinance, the
power to order involuntary detention is necessarily judicial power, hut
is not the judicial power of the Commonwealth if conferred pursuant
to s 122 of the Constitution. For the rcasons gn'Cn with respect 10 the
argument hased on Ch Ill, it cannot be said that the power to order
involuntary detention is necessarily Judicial power, whether or not
subject to exceptions, and, thus, s 122 is not suhject to an implied right
of due process, as contended hy the plaintiffs. There being no such
right, the Ordinance was not invalid hy reason of its mfnngemcnl.
Implied guarantee of equality
The plaintiffs rest their argument in support of an implied guarantee
of legal eyuality on what was said hy Deane and Toohey JJ in Leeth r
The Commonwealth (437). Tn that case, theIr Honours expressed the
view, in a dissenting judgment. that, as a matter of necessary
implication and subject to certain exceptions, the Constitution providcs
a guarantee of legal eyuality. TheIr Honours allowed for exceptions
where the grant of legislative power expressly aulhof]ses dlSCnml11at-
ory laws and where the subject mailer of the grant is "such as to rehut
the nssumption that such tliscrimination was unauthorised hy the
relevant proVIsIOn of the Constitution" (438).
In Leeth. I expresseJ the vtew. 10 which I still ndhere, that Ch HI
operates to preclude the conferral on courts of Jiscretionnry powers
\vhich are conditioned in such a 'ovay that thcy must he exercised in a
discriminatory manner (43'1). If that view is correct, there is a limited
constitutional guarantee of equality before the courts, not an immunity
from tliscnml11alory laws which, in essence. is whm is involved in the
argument that thl:rl: IS an ImpJieJ constitutional guarantee of equnlity
Several provisions of the Constitution are exprl:ssly concerned 10
prevent discrimination: the power to legislate ,-,'ilh respelt to laxation
is subject to the requirement that Jaws on thm topic '!lot
discriminate between States or parts of Swtes" (440); the power to
legislate with respect to bounties is subject to the requirement that they

(4371 (19<)2) 174 CLR 455

(438) uelli (l992) 174 CLR 455 m489.
(.1-39) retth (1992) 174 CUt 455 ;11 502-503.
(440) Constitul;on. s 51(;;).
190CLR I] OF AUSTRALIA 113

"bl: umform throughout the Commonwealth" (441): customs duties He OF A

arc to be uniform (442); trade, commerce and intercourse among the lY'!6-IYY7
Slates arc to be absolutely free (443), by which is meant free from
"discriminatory burdens of a protectionist kind" (444). And by s 117,
THE
"[a] subject of the Queen, resident In any State, shall not be subject in COM"n,,_
any other State to any disability or discrimination which would not be W1'.,\1-'lI

equally appheablc to him if he were a subject of the Queen resident in

such other SLate". Gaud"," J

There is a dUrll aspect to s 117: it operates to prevent discrimination;

it also sanctions discrimination so far as concerns persons who arc not
subjects of the Queen. It is not the only provision of the Constitution
which sanctions different treatment for different people. Thus, as
Deane and Toohey JJ acknowledged in Leeth, the power to make laws
with respect to aliens and persons of a particular race necessarily
allows for different treatment for different classes of people (445). And
their Honours also ack.nowledged that' 'the nature of a Commonwealth
legislative power may be such as to authorise laws which discriminate
between persons in different geographical areas", giving defence,
quarantine and medical services as possible examples (446).
Section 25 of the Constitution also sanctions discriminatory laws
and allows that, for the purposes of determining the number of
members of the Housc of Representatives to be chosen in each State,
"if by the law of any State all persons of any race Qre disqualified
from voting at elections for the more numerous House of the
Parliament of the State, then, In reckonIng thl: number of the people of
the State or of the Commonwealth, persons of that race rl:sident in that
State shall not be counted". Morcover, until 1967, the Constitution,
itself, was blatantly discriminatory. Until repealed in that year, s 127
pruvided, in terms completely contrary 10 any notion of equality, that
"[i]n reckoning the numbers of the people of the Commonwealth, or
of a State or other part of the Commonwealth, Abonginal natives
[should] not be counted". That laUer provision precludes any
implication of equality benefiting Aboriginal Australians in respect of
events which occurred before its repeal In 1967,
Quite apart from the discrimmatory provisions of s 127, the
constitutional provisions which sanction and those which opcratc to
prevent discriminatory laws so combine, in my view, that there is no
room for any implication of a constilUtional right of equality beyond
that denving (i-om Ch III. That deriving from eh III has no bearing on

(441) ConslilUtion, ;; S 1(iii)

(44~) Con'lituri"n,' ~~,
(443) Constitution. s n.
(444) c"le \' Wliillield (1%8) 165 CLR 360 at .194
(4-4.') Leelh (1992) 174 eLI{ 455 at 4EY. Note. however, that different treatrnc"t clne,
Ilot constituk cli,nilIl;nali"n if rderabk ro a relevJIll difference pcr1J;ning to the
p"r,on, concerned.
(4-46) LUllr (199~) 171 CLR .:ISS at 489,
114 HIGH COURT [1996-1997

HCOF A the validity of the Ordinance. It follows that the Ordinance was not
19')6-1997
invalid by rcason that it was contrary to an implied constitutional nght
to or guarantee of equality.
THE Implied freedom (~l movement and of ossocimioll
COM.'1flN-
\\'E,'LTH
It is settled constitutional doctnnc thai the Constitution provides for
a system of govcramcnt which entails representative government and
G,tudnm J n::pn::scntutivc democracy (447). It IS also sCllkd constitutional
doctrine that the system oj democratic government for which the
Constitutioa provides depends for its maintenance on freedom of
communication and discussion of political matters. Thus, it was held in
Nationwide Nn','s Pty Ltd v Wills (448) and in AI/stralian Capital
Telerisir)// Pry Lid .' The Commonwealth (449) thaL the legislative
power confern:d hy s 51 docs not extent! to laws which impermissibly
impede the free flO\v of information and ideas on mallers \.,..hich may
come under consideration III the political process. And it was held in
Theophano!ls v Herald & IVeekly Times Lid (450) and In Stephens v
West Australian Newspapers Ltd (451) that that freedom impacts upon
the Iaw of defamation.
The implied constitutional freedom of political communication was
recognised in cases concerned with laws which. in one way or another,
restricted the freedom to communicute infonnation, ideas or opinions
with respect to mailers which might fall for consideralion in Ihe
political process. Those cases do not hold that the freedom IS confined
to political communications and discussions. Rather, the position is
that the Constitution mandates whatever is necessary for the
maintenance of the democralic processes for which it provides (452).
The fundamental elements of the system of government for which
the Constitution provides wen:: descrihed hy Mason CJ. in terms with

(447) Scc gcncrally, Nmll",,,,ide Nell'.' Pry Ud,' Will, (1992) 177 CLR I. AIIJlraliml
Capitol Teh..-i,w", Ply Lid " The COilU>IOJlwealrh (t992) 177 CLR t06:
TheopluJlwuI \' Herald & Wedll' Times Lid (t994) t82 CLR t04; 5Iephens"
ll'eM AUltralian !l/el,-.'paper" Uri (1994 \ 1R2 CLR 2tt. CUIllifje " The
Commonwealth (1994) t82 CLR 272; 'AJIIW: \. AIHlmiiall Rroodcaslilll:
Corporalion (997) IS9 CLR 520 al 557-559. NOI" thaI lh~ l"rms "r"pr"s"maliv"
govcmmcnl" and ""'pr<""nlaliv<, d"rno(:r.. ~y" h,,,,,, b~"n "us"d ~olTJ<.'whal
intcrchangeably" McGi,l/v,' We,Hem AU.l"tmlw (1996) 186 CLR t40 ~\ 198, p~r
Toohey 1: d Theoph",,,,ul" \' Hemld & Weekly Time., Lid (1994) IlQ eLK 104
Ul 189, p~rDJwson J; al t99'::!01. per McHugh 1.
(44g) 0<)92) 177 CLR 1
(449) (1992) 177 CLR 106
(450) (1<)94) 182 CLR 104,
(451) (1994) IS2 eLK 2J I
(452) Sce Nariom..ide Nell'S Ply rul., Iifh (19<)2\ 177 CLR 10148. per Brennan J
wh"re il is said Ihat "whe[e 0 representative democr~cy is cOnSli{[l1ion~lJy
~mr"nch"d, it c~rrie> wilh il lhose kgal in~i(knb wh;~h ~r" ~ss~ntiat 10 [h"
cffeetive m~inlcnUllee of lhal form of govemmcnt."'
190 CLR 11 OF AUSTRALIA 115

which I agree, In Australian Capital Telel'isio/!. His Honour IICo>A

1996-1997
snid (453):

the n::prcscntativcs who arc members of Parliament and

Mmisters of State arc not only chosen by the people but exercise THF

their legislative and executive powers as representatives of the COM""".

WEALTH
people. And in the exercise of those powers the representatives of
necessity arc accountable to the people for what they do and have a GauJnJll I
responsibility to take nccount of the views of the people on whose
behalf they act.'
It is clenL and it has been so held, that the fundamental clements of
the system of government mandated by the Constitution require that
there be freedom of political communication hetween citizens and their
elected representntives and also between citizen and citizen (454).
However, just as communication would be Impossible if "each person
was an island" (455), so too it is substantially impeded if citill:ns arc
held in enclaves, no matter hmv large the enclave or congenial its
composition. Freedom of pulitical communication depends on human
contact and entails at least a significant measure of freedom to
associate with others (456), And freedom of association necessarily
entails freedom of movemenL (457).
Modern means of communication notwithstanding, freedom of
political communication between citizen and citizen and between
citizens and their elected representatives entails, at the very lcast

(453) Au.<lf(jlitm C<lp/lul Telel'i"iml (\992) 177 CLR 106 al 138.

(454) See ;Valiolll<ide IVel>' J'ry Lid l' \\'111.< (1992) 177 CLR I at 12, rer Dc:lJl~ and
Toohey 1.1, A'olr"I;"I! n'pital ll\'i.<i"'l Pr"!' f.rd ,. Fhe C"If",w"wealth (1992)
177 CLR 106 at 139. p.:r Mason (I; al 174, per Deane and Toohq.- JJ; at 212, P~j'
GaurJron J; at 231, per \fcHugh J; ra"IV" AIHtm/ran Bmad""slill/i Cotf>oWI/oli
(1997) t89 CLk 520 at 559-560
(4551 :"<lllorm/de Ne',., Pry Lid r '\'ill.< (1992) 177 CLR 1 a( n. per D~ane and
Toohey JJ,
(456) Th:l1 frocdom of commllnication depends on freedom of association ha~ been
nowd in the United Staws and Canada. Sec De }ulI!?e r Ore!?o!l (I 'H7) 29'-1 US
353 at 364: II,'aliorwl Assoclorio/l Fir Ihe Ad\'(l!Icemel11 'l Colored People .'
AI<lb<lllla (958) 357 US 449 at 460; She/I,m' TIH'kn (19(;0) 3M I:S 479 al 41\(;:
Gibwn r Florida Lqii,<lative fnve.l'li!?alion C"mlllillce (\963) 372 US 539 at 562.
p.:r Douglas J; He Public Sen'ice FJJJpl".W'c Reluti"'ts A('I Jl9l\7] 1 SCR 31.1
at 391, p"r Lellain J (wilh whom Heet' ,mrlLa Fore.'t.IJ mneurredJ: al .~97, per
\klntrye ],
(4571 Note. however. Ihal Ihe Americun ~ulh,-,rilie' Irea( rr=dolll or movemenl a, an
incidem of nJtional citizenship. protected by the FOllneemh Amendment whit;h
prohibits the Slates from abridging the privilege, and immunities of L:niterJ Slates
citi7en, and from depriving any per,on of lit", liheny ()r propeny without due
proee" or law See Crandall v Newd,j (11\67) 6 \Vall 35 at 43-44: Willi'IIII" "
Feu", 1.19(X)) 17\.1 L:S no at 274: Fwinin;.: v Ne\>' }er"cl- (1')O~) 211 US 78 al 97:
fd"II'd,< " Colitiml;U (1941) 314 US 160 al In. per Douglas J. Prior to the
enactment or the Can~dian Charier uf R/ghlY and F,eedum,<. which exp",,,,ly
provide'S for mobility rights. CanJdJ followed a similar Jpproach, See Willfier \
SMI' (hlSfem! lid 11')5Ij 4 1)1-1< 52'1 at 55i>-55'J, per Rand J,
116 HIGH COURT [1996-1997

HCOFA freedom on the parl of citizens to associate with those who \vish to
1990199]
communicate information and ideas with respect to political matters
and those who wish 10 listen. It also entails the right to communicate
, with electeu n:prcscnlalivcs who "have a responsibility not only to
THE
ascertain the views of the electorate but also to explain and account for
C"""ON-
WFM.rH their decisions and actions in government and to inform the people so
that they may make infonTIcJjudgmcnts on relevant matters" (458).
Agnin modern methods of communication notwithstanding, freedom
of political communication between citizen and citizen and between
citizens and their elected representatives entails. at the very least,
freedom to move within society, freedom of access to the institutions
of government and, as was early recognised in R v Smirhers; Ex parte
Benson (459), freedom of access to the sent of government.
As already mmtioned, the Commonwealth's power to legislate with
respect to the matters specified in s 51 of the Constitution is limited by
and subject to the implied freedom of political commul1lcation
necessary for the maintenance of the system of government for which
the Constitution provides. And because freedom of movement nnd
freedom of association are, at least in the respects mentioncd, aspects
of freedom of political eommuniention, they, too, arc implicit 1I1 the
Constitution nnd constrain the power conferred by s 51. It is. however.
another question whether the power conferred by s 122 is subject to
the same freedoms. That question, so far as it concerns freedom of
political communication, was refcrrcd to 111 Nationwide News and in
Australian Capital Television, but not decided (460).
There are two matters which might be thought to provide some
support for thL: viL:\v that thL: power 10 legislate pursunnt to s 122 is not

(:ISS) AU.\'lralia" C"pit"r Televi.""n Pty Ltd )' The C"''''/lolI\lta/1i1 (1992) J77 CUt 106
at 13~. per M~son CJ
H5~) (t ~ 12) 16 eLI{ 99 at 108,109, per Griffith CJ. ~t 109-110, I"'r Flar10n J. Se-:o ~Iso
I'loneer ~~l're,'s I'rf Ltd l' HOIdlkin (1958) 101 CLR S'6 at S50. per Dixon CJ:
/'ilillonwide New", Pry Ltd v IVil/s (1992) 177 CLR I at 71-74. p~r [)~an-:o and
Toohey JJ: A,wralian Cupll"/ Tdel';.\io" Ply rid v The COIrJ!II()/HveOIIIi 0\)')2)
177 CLR 106 Jt 213-214, per GJudron J; Theophw,,,"., \ lIerald & Wecklr Time.<
Ltd (1994) 182 CLR 104 at 169. per ~atle J. In TIr~()t'lwlwllS (994) 182 CLR
104 at 166, Deane J charaderiser! Smitlwr" as having affirmed the "'~onstjtutional
implication of freedom of ~ee"s, by Ihe rcprcserll~d to the organs and
in,lrumcnwlitie, of their representalive g,wemmenl"
(460) In Auslralial? Capillil Television f'ry Ltd .. 1hp Co",,,,,,,,,,'e,,llh (1992) 177 CLR
106 at 176 Deane and Toohey 11 nOled thaI lhey were "not pres~Jllly persllJded
lhal s 122's power to mnke law, 'for lhe government of ,my Terrilory sUfITmkred
by any State' is immune frolll the impli~Jti<)ns to he di,lcemcd in the Con,titution
as J ,vhole. induding Ihe implication of frc~dom of pohtkal eommunicJtion'
McHugh J, how~v~r. was of the view that '"Itlhere is nothing in s 122 or
anywhere ehe in the Conslitution which suggests lha! ta,,'s made by the
Commonweallh for the gov~mmem of a Territo!)' aT'<' ,ubje<:1 to prohitJilionl or
limitations ari,ing from tbe <:on<:epls of representalive gO'.'l'rnment, responsible
go"emllleni or freedom or eolllm~lliealioll'" i111.'traliwl Cill'llill Feln'isi"" (1992)
I77 CLR 106 a! 2'-16.
190 CLR I] OF AUSTRALIA 117

constrained by thc frceuum of political communication identified in H Co;- i>'

19%-1991
Natiollwide Neil'S and in Australian Capital Telel'isiofl. They are both
matters 10 which some refercncc has already heen made. First, S 122 KRl'~LR

is, at least in some respects, a pO\ver of a "'different order" from thaI ,

THE
conferred by s 51 (461). The second IS that the syslem of C"""ON-
representative government which the Constitution requires has no WEALTH

application to the Territories.

There can be no doubt thM s 122 is different from s 51 in thal it is
not expressed to be "'subject to [the] Constitution". Moreover, it is
clear that s 122 is a "non-federal" power, in the sense that, unlike the
power conferred by s 51, it is not shared hetween the Commonwealth
and the States. It may be taken, by reason of these considerations, that
it is not subject to limitations denved by implication from the federal
structure of the Constitution (462). However, a number of ueclsions of
this Court have held Lhat s 122 is not subject to or limited by certain
other prOVIsions of the Constitution which clearly confine other
Commonwealth powers. It has been held, for example, that a law
enacted under s 122 for the compulsory acquisition of property is not
subject to the requirement for just tcmlS in s 51 (xxxi) of the
Constitulion (463). And as already mentioned, it has been held in a
number of cases that the provisions of Ch TTL or at least some of those
provisions, do not limit the power conferred by s 122 (464). It has also
been held that a Territory legislature, created pursuant to s 122, may
enact laws \vith respect to Commonwealth places notwithstanding thm.
hy s 52(i), the power to legislate ~'ith respect to those places IS
conferred exclusively on the Commonwealth (465).
It does not follow that, because s 122 is not expressed to be subject
to tlK Cunstitution or because it is not subject to some constitutional
prohibitions or restrictions, its meaning (lnd operation are not affected
hy other constitutional provisions, Indeed, Capita! LJuplicarors Pry Ltd
\' Auslralian C{ipital Territory (460) estahhshes to the contrary It was
held in that case that s 122 docs not authorise Territory legislatures to

(46\l C"pil"{ H' of Appliwrccs Ply Lid v Falconer (j97l) t25 CLR 591 al 599, P'"
Balwick CJ.
(4f12) As to which. ,ce \I"esl \ C"mlniSSI/llia of l<J..\"IIliNI f/1iSll'j (1937) 56 CLR 657:
Esse",'"" C"iJ)(Jf(Uillll ~' Crileri"'l "I'Ilealre,~ Lid (19el-/) 74 eLl{ I. Melbourne
C()Il'OIwi"" \' "I'I,e C"mmmil>Wdll! (1':J47) 7el- CLR 31, ViCI()J'i<l v The
Co",,,ullnH'''/lh (lh~ P'Hml/ T"x Ca.ld (l':J71) 122 CLR 353. Queenslwld
t/ect,-icil.\' Commis.,ion \. 'llIe C"mll/on\H'o/lh (1':J1I5) 159 CLR In: Siale
n",nrhn '!( C"nrmen:e <md Indl'II(\' I' The CommO/lWeu/llr (lhe Sec"/ld Fringe
En""irs T"x C",e) (19H7) lfd ClR 329
(el-li]) '/""ri r"u v The Commonwe"lth (19ri9) 119 CLR 'i(,,j.
(el-M) S,,<;' cg, t? \' IJem<lsclllli 0;.115) 19 eLl{ 629: l'o''1C1" v 1'111' King: Fr parle Yee
11926).',1 CLR 432; Wmers \. The CrwwlfIr,wealrh (1'}51) R2 CLR IRH: S"I"IIII ,.
llnmes (I,}(,-~) 11,1 CLR 22h: Capital 1'1' & Appliance., PI." Ltd \' Fa/umer (1971.1
125CLR591
(465) SI'iJ::<lrI " SI('\",rr (I ')'J4) 1111 CUI 54H,
(4(,(;) (199~) 177 elf{ ~4l\
I" HIGH COURT [ 1996-1997

HCmA impose duties of excise. the power to impose which is, by s YO,
1')%1997
conferred exclusively on lhl.: Commonwealth.
Nor, m my vu::w, docs it follow that, hccausc the splcm or
representative government for which the Constitution provides has no
l"f1L
C<,."',,.~
application to territories, s 122 is unaffected by the implied freedom of
Wb\UH political communication identified in NatiOll"widc l','cws and In
Allstralian Capilal Te!nision. In Ihis regard. it is sufficient to note thal
G,uJ"," J the Constitution contemplates that territories will be governed by lav.'s
enacted by a Parliament comprised of persons elected by anu
n::sponsih1c 10 the pt:oph::; it most certainly docs nol contemplate that
they are 10 be governed by an executive unanswerable either 10 thl.:
Parliament or to the people.
Accordingly, the question whether s 122 is suhject to the freedom of
political conunumcation identified in Nationwide News and III
Australian Capital Televisiou is one that must be answered by
ascertaining the meaning and operation of that provision in its
constitutional setting. In particular, its meanIng and opcnltion must be
ascertained by having n::gard 10 the Constitution as a whole. In this
respect, I adopt v.'hat was said by Kino J in Lamshed v uikc (467):
" ... the fact that tbe section is found embedded in the agreed lerms
of federation, with every appearance of having been regarded III the
process of drafting as a proVIsion upon a matter germane to the
working of thc federation, seems to me to underline the necessity of
adopting an interpt'etation which will treat the Constitution as one
cohcn::nt IllstrumenL for the govemmcnt of the rclkration, and not as
two constitutions. one for the federation and the other for its
territories.' ,
lhen regard is had to the Constitution as a whole. there are two
rcatun:s whidl. III my VIew, nl.:ccssitate the conclusion that s 122 IS
confined hy the freedom of political cOTllTllunication idcntified in
Natimnl'ide News and in Australian Capital Tdevision and by the
subsidiary freedoms of association and movement to which reference
has already been made, The first is the nature and scope of the
freedom of political communication identified in those cases. The
sccond is the special position of territories in our constitutional
arrangements.
Freedom of political communication is a freedom which extends 10
all matters which may fall for consideration in the political prOi,;ess.
The government of the Australian territories is one such matter. Hence.
the freedom extends to all matters that bear upon Territory government

(467) (1958) 99 CLR 132 al 153-154.

190CLRlj OF AUSTRALIA II"

as well as those whieh bear upon the actual government of the He, A
1~%,1~97
Territories (468).
Moreover. the nature of the freedom is such that it extends to
memhers of society generally (469). In Australian Capital Telcvisio/l,
TH~
Mason CJ pointed out that ""individual judgment, whether that of the C"-'N(,N-
elector, the representative or the candidate, on so many issues turns ",'EnTH

upon tree public discussion in the media of the vic ....,s of all interested
persons, groups and oodles and on puhhc participation 111, and access ,"'lull,,,"!

to, that discussion" (470). However. informed judgment does not

depend simply on media discussion. At hase. it depends on public
discussion, that is diSCUSSIOn in which all are free to participate, or, as
was put by Mason CJ in Australiall Capita! Telcvision, "[tJhc efficacy
of representative government depends upon free communication
hctween all persons, groups and olher bodies in the com-
munity" (471).
The nature and extent of the freedom identified in Naliunwide News
and in /Iustraliall Capital Television assume particular significance in
the context of the constitutional arrangements made with respect to
territories. It may be true to sny that the Territories do not form part of
the federation. Even so, s 111 of the Constitution provides that the
Commonwealth, which IS constituted by the federating States, has
. "exclusi ve jurisdiclion" over surrendereu Tcmtory, as is the case with
the Northern Territory (472). And given Ihe lerms of ss 111 and 122
and. so far as concerns the Australian Capital Temtory, 5S 52 (473)
and 125 (474), it must be acknowledged that neither Territory is "a
ljuasi foreign country remote frolll and unconnected with Australia
except for owing ooedience to the sovereignty of the same Parliament
hut a Territory of Australia ahout the government of which the

{461\) See AUSlroh<!1I Copllal Telel'isiOIl Pry Lid .' The COJ1ll>lflll"'e,,llh (1<)92) 177 CLR
106 U! 1<12, per Mason (1; at 168169, per De~ne ~J\J Toohey JJ; at 215-217, per
GaudronJ, see Jiso Jl BI, per McHugh),
(469) See Theopll<HltllIS" Herald & Weekly Tillie" Ltd (1994) IR2 (LR 104 U! 122, per
~Iason CJ, Toohey and Gaudron )J refening 10 AII,<trlrliaJ> Capital Tdn-iliml Pr..'
Ltd.' The C(!mmtllllrealih (1992) 177 CLR 10fi ut 139, pt)r M:l.~on C1: at 174, per
Deane lIml Toohey JJ; at 212. per G~udrl)n J.
(470) /w'lroliml Capiml Telnisiml (1992) 177 CLR 106 U! 1.'1<).
(471) /w.\lraliwi Capital Telaisiml (1<)92) 177 CLR 106 at 1.'1<).
(472) The Northern Territory wa, "annexed to the Province of SOlllh Australia by
Letters Palent in 11\63' (I..am,lhed \' Lake (1951\) 99 CLR 132 U! 140) and owes it,
cxislencc a, J TerritoI)' to lhe sUITl'nder of Territot)' by the SlJte of South
Australia Jnd Ihe a((eptanee of lhal Terrilory hy the CommonweJhh. See
,vouhem TerrilOry Surrender A('I 1<)07 (SA): iV"uhem TerrilolT /\c,-eplwwe Ad
1910 (Oh)
(473) Section 52(;) rekvJntly confers exdusive power 00 the Parli~meJ\t I<> make law,
with respect to '(he ,cat of government of the COllunnnwealth"
(c/74) Section 125 rdevantly provides for the seat of Government 10 be within
Territory gr~nled to or ~cf.juired by the C()mmonwealth"
120 HIGH COURT ll'.l96-19tJ7

HCNi\ Parliament may make every proper provision as part of its legislative
I996-1 ~~7
power operating throughout its j llrisdiclion" (475).
Although it is for the Parliament to make proper provision for the
,
KR\.LLR
g(ivcrnmcnt of the territories of the Commonwealth, responsibility for
THe
their government and, thus, for the welfare of those who reside in them
C""-""N-
WEALTH ultimately rests with the people to whom the Constitution entrusts the
responsihility of choosing the Members of Parliament (476). Clearly.
the proper discharge of that responsibility depends upon the free now
of information with respect to all matters bearing upon Territory
government amI. also. those matters which bear upon the actual
government of the Territories.
Moreover, thc propcr dischargc of" thc responsibility which tbe
people of Australia ultimately bear for the government of the
Territories uepends on freeuom of political communication bet\vecn
them and persons resident in those Territories: there eoulu hardly he
in ("oITneu judgmcnt on matters relevant to their government if residents
were not free to provide other members of the body politic with
information as to the affairs of the Territories. And although persons
resident in the Territories have no constitutional right to participate in
the electoral processes I"or which the Constitution provides, the
discharge by elected representatives and Ministers of Stale of their
responsibilities requires that there be freedom of communication
between thcm and persons rcsiding in the Territoncs. Anu for
uiscussion between persons resiuent in the Territoflcs and othcr
memhers of the body politic. induding elected representatives and
Ministers of State. to be properly infoflTled, it is necessary Ihat there be
freedom of political communication between the persons who reside in
the Territories.
11 follows that. if Parliament is to remain accountable to the
Australian people. the freedom of political communication identified
in Natiollwide Neil'S and in Australian Cupirul Telel'isioll must extend
to persons resident in the TCITitorics and Ih<:ll. 111 that regard, s 122
stanus in the same position as s 51 That being so. the power to
legislate pursuant to s 122 is confined by the frecumTl of political
communication identified in Nationwide News and in AI/slm/ian
CaJlitul Television and. also. by the subsidiary freedoms of movement
<ind association which, as r have explalilcd. arc csscntial lor the
mmntenance nnu llltegrity of the system of representative government
for which the Constitution pmviues.
The freedom of political communication identifieu in Nationwide
Nn;,s and in Australiall Capital Television IS not absolute (477).

(475) 1,,'IJ1<lied' I,"kp (19SR) 99 CLR 1.12 al 144. p~r Di"on CJ

(476) C"o,t;luli"n, ,., 7. 24
(477) See ,ViU/()!lwlde :Ve"", l'r1" Lid \' Will.' (1992) 177 C1.R I ~I SO-51, per Brennan J:
at 76-77. p~r ])~an~ and Toohey JJ: at 94-9'\. pa G~uJr(m 1: Au,IIr"II"" C"f'/hl!
'I'pfPl'isi"n Ply /./(1 I' The C"mnWJ1\,-eallh (19921 t77 CLR 106 Jt 169, per tkJn~
 190 CLR 1] OF AUSTRALIA 121

Similarly, freedom of association and freedom of movement arc not IlCoFA

ahsolute, Obviously, they must yield to valid laws of the Common-
wealth on topics which clearly comprehend restrictions on movement
and association, as is certainly the case, for example. with s 51{vi)
-
19%-1997

KW(;E"
,
THE
which authorises laws with respect to defence, s 51(n) \vhich
C".\1MON-
authorises laws with respect to quarantine and s 51(xix). so far as it is weALTH

concerned with aliens. It is equally obvious that freedom of association

<:tnd freedom of movement must yield to court orders for the detention
of persons in custody upon conviction for criminal offences, So to
state is not to mark oul the boundaries of these freedoms: it is simply
to illustrate that they arc not ahsolute.
Because Ireedom of movement and freedom of association arc not
ahsolute. the question whether the Ordinance impermissihly rcstrlcted
those freedoms IS one that necessitates consideration of the issues
raised hy the Commonwealth in its plea that the Onhnance was
enacted ""for the f'Jurpose of the protection and preservation of persons
01 the Ahoriginal race". That plea is the subject of Q 3. Until that
question is answered. it is not possihle to answer that part of Q 1
which asks whether the Ordinance was invalid hccause it
impermisslhly rcstricted freedom of movement and of association_
Freedom of religion
Section 116 of the Constitution provides:
"The Commonwealth shalll10t make any law for establishing any
religion. or for imposing any rcligious ohservance. or for prohibiting
thc free excrcise of any religion, and no religious tcst shall be
required as a qualification for any office or puhlie trusl under the
Commonwealth."
Clearly, s 116 is, in tenns, wIde enough tll extend to laws enacted
pursuant to s 122. However, in Allurnev-Gelleral (Viet), Ex reI Block v
Thl: CommOl/wealth (478), Gibbs J doubted whether that was so.
Before turning to the question whether s 122 is confined by s 116, it
is necessary to nOle the Commonwealth's submission that the plamliJTs
"have not pleaded th<:tt, at the relevant time, they or their parents held
a religion; nor that the taking or [the plaintiffs and Rosie Napangardi
McClary] into custody and cat'e deprived them of the ahility to
exercise that religion". That submission is relevant to Ihe extent that

(477) ('"m
~nd Toohey JJ: al 217-2Ig, per Gaudron J: at 2J4, pCI' McHugh J. S~C ~ls<J
Tlieopliall"us r tt"",1d & Weeklv Times LId (1994) 11Q C1.R IIl4 at 126. per
Mason CJ. Toohey and Gaudron JJ: :ll 146. per B"-,nn~1l J; nl 178-179. per
Vcane J: C"nlJtf~ \' The C"lIIlIIon"'-'il/lh (1994) 1R2 CUt 272 Ul 299. per
Mason CJ: ~t 336-337, per Deane J; Ul 387. pet' Gaudron J: l.wlge .. /luslra/io"
Broad{'(J$I!"!i Corporal;"n (1997) IR9 CLR 520 Jl 561562,
(4781 (In\) 146 CLR :'i:'i9 at 593594. Sl'~ Jiso C"e \' Th~ Com"!Oll\walil, (1979) 53
AUK 403 ~t 40g; 24 ALR II R Jt 129. p"r Gibbs J.
122 HIGH COURT [199Ci-1997

II COF A the plaintiffs claim damages for breach of their rights to religious
1496-1447
freedom, assuming it can he said that they have such rights and lhal
theIr hreach sounds in damages. It is not. howevet, relevant to a
detemlination whether the Ordinance was invalid because it was, m
THE
C",,,,,,,,- terms of s 116, a "law
religion".
for prohihiting the free exercise of
WHLTH

In Lamshed \' Lake, Dixon CJ, wIth whom Wehh and Taylor JJ
agreed, said that he did not "sec why s 116 should not apply to laws
made under s 122" (479). Similar statements ',','crc made in Teori Tau
v The Commonwealth (480), in Adelaide Co oj' fehoW/h'.I Wifne.lses
Inc v The COflllllomreallh (481) and in AlloT/)cv-Generu{ (Vier); Ex ref
Blark v The Commonwealth (482). However and as already noted, III
that latter case Gihbs J expressed some rcluctann:: 10 accept that
proposition. His Honour acknowledged the strength of the dicta in the
decided cases hut said (483):
those dicta arc in my opinion very difficult to reconcile \vith
the decision in R v Bemascolli ,",,'here it was held that the power
given by s 122 is not restricted by s 80 of the Constitution - see
also Spmll v Hermes" (citations omitted).
His HOllllur added (484):
"If s 122 IS limited hy s 116, the latter sel:lioll will have a much
larger operation III the Territones than m the States, f()f although
s 116 IS contained in Ch V of the Constitution which is headed "The
States' it is not expressed to bind the States."
The cases to which Gibbs J referred. namely. Bernasconi and Spmll
v arc cases concerned with provisions found in eh III of the
IICI'IIICS,
Constitution. I have aln:ady inJicatl::d that I sec no reason why Ihere
should be read into those provisions limitations which their terms do
not requirc. Moreover, if, to any extent, s 122 stands free of ell III it
can, 1Il my view, only be by reason of the critical slgnlficancl:: of
Ch III for the maintcnance of the federal compact (485). There IS
nothing which warrants special federal significancc heing attrihll1cd to
s 116.
Not", in Illy view, should s II () be read down hy referencc to the

i~191 L"II("hd L' Lak" (l'-J5l(1 '-J'J CLK lY'- m I--I-~ nlld ,C~ at 15l 15-1-, per Kino J Nl'le.
h"W~V(;L Kiu" r, C4ui\'(J(;alion in relalioJl to thi, 4unlion in S/mill " Herm,-.\'
11'1651 11~CLK226at250,
1~8()) (1%9) 119 CLR 504 ~I 570
('181) (194l) 61 CLR J 16m 12~. p~r Latham CJ: at 156157. lJ"r :VlcTi~m~n J
(4-82) 11 '!K I) 1-1-6 CLR 559 ~t 57(;, per Ham'ick CJ, al Ii 18. peT \hsOJl J: ~l 621. p<:r
[I,'lurphy J, and al O4':l.Ile"r Wilson J.
(-I-8~ 1 /:',\ I'e! Ii!{j('/'; (1981) 146 CLI{ 559 at 59,-S9..\
('18--1-) Ex rd Black (1981) 146 CLR 559 at 5'1-1-
(..\851 As to ,',--hich, 0<'<' Wil,WII )' Millislerji'" Ab(}n'_~illal & T", ''0 50'<111 {"IWlller Aft,'irs
II'j'J(,J 189 n.R I. Kahle I' Dir'-"'Io' (It'I',,I>Ii,: Prosuwi(}n,< 1,\'Sl-rJ (1996) Ix9
CLK 51
190 CLR 1J OF AUSTRALIA 123

consiueration that it is not expressed to bind the States. Rather. the II Co, A
19%-1~~7
consideration that. unlike other Australians. resiuents of the Territories
have neither a constitutional right to participate in the electoml
processes for which the Constitution proviues nor a constitutional right
THE
10 self-government is, in itself. a strong reason for reading s 122 as
CnM"'l,~'
subject to express constitutional guarantees and freedoms unless their WE.".TH

terms clearly indicate otherwise. And, it may not be entirely accurate

to say that, if s 122 is limited hy s 116. the latter has "a mueh larger
operalion in the Territories than in the States" (486). Rather. it may be
that, so far as concerns self-governing terrilOries. the position is the
same. In this respect, it is sufficient to ohserve that s 116 is directed to
laws maue hy the Commonwealth, not laws enacted by the legislature
of a self-governing Territory.
As already mentioneu, the acecpleu approach 10 constitutional
I11terpretation is that constitutional provisions "should be Cllnstrucd
with all the generality which the worus used admit" (487). There rna),'
he special considerations which require thllt approach to be modified
in relation 10 particular provisions. as I think is necessary with s 122.
But there is no reason for modification in the case of constitutional
guarantees. On the contrary, to adopt any bll1 the general approach in
relation to constitutional guarantees is to rob those guarantees of their
efficacy and to depreciate nghts which they serve to protect (488).
Aceoruingly, in my view, s 116 is to be given full effect aCCllrding 10
its tcmlS. When given that crfeet it is, as Latham C1 said in Adelaide
Co o(Jehowl!J'S lVirnnses //1(' (4gy):
a general prohibition applying to all laws, under whatever
power those laws may he mauc. It IS an overriding provision. It does
nol compete with other provisions of the Constitution so that the
Court shoulu seck to reconcile it with other provisions. It prevails
over and limits all provisions which give power to make laws.'

(-'llIo) A/tomey-Generalr Vin); Fx rei mad v The Commo/llreal,h (1981) 1ell'> eLf< 5S\I
at .'ilJ"-. per Gibbs J.
(4l17) R )' Public Vehides !.ian.,iIlM AI'f'~<l1 Trilm'wl ITIl5!. Ex 1'<lJ'tf Ausml!im,
Nal"mal Ainmys PI}'/.rd (1964) 113 CLR 207 ~t 225,
(4l1l\) Sec Boyd I' Uniln} SI'l/es (11\1I6) 11(, t:5 616 ~t 635, See Jiso Street' QIICfllsl"ml
[Jar !l.1,\(lciutiO/l (1\l1I9) 1611 CLR -'161 al 527-528. per D~~ne J; ~I 554. p~r
Toohey J; and ~t S09, per Gaudron J. Anrt s"",, ~> to th~ n~ed to interpr~t
lOllSlilutional gu~r~IlIe~.\ liberally, Rank of ;\iSlt' r The COIlllllo!HH'oIlh (I9-'1S I 76
eLI<. I at 349, per Dixon J; ClilniN-R(I,<.' \ The Commo/lwcalth (1\.184) 155 CLR
]9'> at 201-202, p~r Gibbs CJ, \-1~M>n. \Vilson, I:llt'lm~n. De~ll~ and Dawson JJ:
Aus!ralill!l Tapc M<l!llllilcw,'fl's A.uoc;mio!l Ltd \' The CmllllJm!l<;eulth (1993) 176
CLf< el80 at 509. p",r \-tason CJ, Bl~lman, D~anc and Gaudrnn JJ. Mutual Pool, &
St/II1Ft.\' Ltd" Tlte Common>\'elllih (1994) 179 CLR 155 "t Ig4. per f)",~nc and
Gauclron Jl: Georgiadis .. ,lu.<rrali"n mid O,'asea" Teleuilllllwmcali'lIIs
Corpolil/ion (199el) 179 Cl.R 297 at ~()J. per Mason 0, Deane and Gaudwn lJ.
m '>20. pCI' Toohey J
OW)) (1'14' 67 CLR 116 at 123. Sec also at 156, per \-kTicm~n J where it is suit! Ihal
.s 116 "imp"'",s a r~.'lriction 011 nl! !h~ IGg,islmivc powers of Pnrli::lJrlcnt"
i24 HIGH COURT [1996-1997

II C OF A The que~tion whclhcr thl: Onlimlnee infringuJ the prohihition

14')6-1')47
effected by s 116 was argueu by n::lerencc only to that aspect of its
prohibitiun concerneu with the liTe exelTlse of rehglOn. There are two
issues involved in the question whether the Ordinance infringed that
TH~
aspect of s 116, namely, whcther the Oruinanu:: was a law
CO"""",
WEM,TE1 "pmhihiting thl: free exercise of any religion" and, if so, whether it
was a lav,' "jilr prohibiting" it (emphasIs added). These Issues may
convl:nil:ntiy b~ considered in conjunction with the Commom\iealth's
pica that the purpose of the Ordinance was to protect and preserve
Aboriginal people. That plea \vil1 he considered later in thes~ r~asons.
All action for damages for infringement of constitl/tional right~

The plaintiffs contend that thl:rl: IS Of, pl:rhaps. that thl:rl: should
now be recognised a cause of action sounding in damnges for breach
of constitutional guarantces and fr~edom~. They argue that "thl:
Jnlcgrity of l:onstitutinnal entitil:ml:nts. whl:thcr articulatcd as rcstric-
tions on legislative or executive power, privileges or immunities or
positive rights. and whether express or Implied, can only be presl:rved
Jf appropriate and dTcctive rl:ml:uil:s arc availahil: for their brcach."
Anu they contl:nd, by reference to uecisions in other jurisdictions,
notably the decision of the United States Supreme Court in Bivens \.
Six UllkJlOlWI Named Afients o{ Federal Bureau o{ iVarcolics (490),
that, in all such cases, uamages arc the only appropriatc:: remcuy.
There are two malleI'S which should be noted with respect 10 the
plaintiffs' argument. hrst, it is only necessary lO consider the
argument as it rdates to s 116 and to the implied constitutional
freedoms of movement <lnd association, they being. in my view. the
only relevant limitations on the legislative power conferred by s 122
and, thus, the only liTeuoms \\"hich could conceivably have heen
infringed by the actions of which the plaintiffs complain. The second
matter to be noted IS that, as a l1l<1ttcr of logic, the plaintiffs' argument
nm only sueeeeu il anu to the extent that the constitutional prohibition
in question can only be vindicated by an award of tlamages unu, then.
only by an award made in an action for breach of that constitutional
prohibition rather than in an action for infringement of common lQW
righl~.
It is convenienl to turn first to s 116. By its terms. S 116 dOl:s no
more than effect a restriction or limitation on the legislative power of
the Commonwealth. It is not, "in form. a constitutional guarantee of

(4\.10) 0\.171) 40J US ~l\l\_ :"ow lhal a Bile", aClion cannOI be broughl again,t a federal
agency, only individllal agent,; Federal De!,"";1 bl511rWICC C"'f>olilI;"'1 I' Meyer
(19941127 La", EJ 2d ~Og al .122-.12'1_ As 10 Ihl: position in lrdand and Ne",
Zealand, where neitlwr Ihe Irish Conslitution nor Ihe New Zealand Hill of Righl\
~xpre,,]y pr,-,vid~s for r~m~di~,. 'e~_ resp~clivcly, Till' SItU" (Quillnl ,- Ryan
[t965] IR 70. and SIIII['S"" ,- AI/om"y-G"""rol iNZI Wmge"I'.\- Case) i1994]
~ NZLR 667
190 CLR 1] OF AUSTRALIA 125

the rights of indIviduals" (491). It docs not bind the States: they are H Cor i\
IQ%,1<l97
completely free to enact laws imposing religious observances,
prohibiting the free exercise of religion or otherwise intruding into the
area which s 116 dellles to the Commonwealth. It makes no sense to
THE
speak of a constitutional nght to religious freedom III a context in
CDM""'''
which the Constitution elearly postulates that the States may enact WFALTII

laws in derogation of that right. It follows, in my view, that s 116 must

be construed as no more than a limitation on Commonwealth
kglslative power. More preciscly, it cannot be construed as impliedly
conferring an independent or free-standing right which. if breached,
sounds in damages at the suit of the individual whose interests arc
thereby affected.
Freedom of movement and of political communication stand in a
somewhat different position from the hmited guarantee of religious
freedom effected by s I Hi of the Constitution. They arc freedoms
which, of their nature are universal. in the sense that they necessarily
operate without restriction as to time or place (492). That being so.
they necessarily restnct State kgislative power and thus, may be
described as giVing rise to general. although as earlier indicated. not
absolute freedoms. Even so. it docs not follow that the Constitution
gives an independent or free standing right to move in society and to
associate with one's fellow citizens which., if breached, sounds in
damages.
The right to move in society and to associate with one's fellow
citizens is an aspect of personal liberty which is jealously guarded hy
the common law and which. is abridged only to the extent that it is
inconsistent with positive rights, including property rights, or to the
extent that statute Jaw validly provides to the contrary (4t)3). Personal
liberty is protected by the Constitution to the extent that freedom of
movement and association are impliedly mandated by it. However.
there is no basis, in my VIew, for construing the Constitution as
conferring an additional right over and above those provided by the
common law. Moreover, the relevant rights provided by the common
law are properly vindicated by actions for trespass to the person and
for false imprisonment actions which sound in damages, including. in

(491)Allorllcy-Gelleml (VI,,). Lx ("IWalA' The CwmnOlJ."""llh (19gl) 146 CLR 'i'i'!

ar 605. per Stephen .I,
(492) See a, ro rhe operatilln of the froXdom of politicat disclls,ion m all time,; and
throughout the Cmmll{)llwe<llth. iValiolly.idc Nnn I'r.... Lid v WIll.I (1992) 177 ClR
I at 75-76. per Dcanc ami Toohey JJ; Australian C"plwl Telcvislolll'rl' Lid \. The
CO/llnumwelllih (]9'l2j 177 CLR 106 ~t 142, per~laslln CJ; <11168-169. per Deane
and Toohey JJ; ;:It 215-217. per Galldmn .I; Tileoplumoa" ,'Ilemhl & IVedlr
T'lIIcs Lid (t9'!41 I g2 CLR 104 at 122_ pc" Ma,on CJ. Toohey and Gaud"'n JJ;
al 164-1 ('(i. p,,, lle~ne .I; Sr"l'hcrls " Wesl Au.\lI'ali"lI New,'l"'f"'rs Lid (1<)<)4) I gl
CLR 211 at 232. per :>'1a>;on CJ. Toohey and Gauclron JJ; at 257.1"'r Deane J
(-+93) Sec Cox \' Hake" (1l\90) 15 ApI' C's 506 at Y17. per Lord Herschell; R l' CWIt/OII
Ro\!' I'ollce SI<lI'orl (In.<pn(or) (11)22) 91 LJKB n ~t 106; He BO/WIl, Fx parte
BeallI' (19.'\7) 162 elR 514 at 521.1"" Hrennan J,
126 HIGH COURT [1(j96-1 (j(j7

llen.. A appropriate cases, exemplary damnges (494), There is, thus, no

]')%_IL)Y7
necessity to invent a new cause of action,
The Commonwealth plea: pllrpose and proportionality of the
THE Ordinance in relalion TO j'reedom oj' movemenT and oj'association
Ol"'1ilN.
\\T..\I.TH
It is necessary now to turn to so much of Q I ns asks whether the
Ordinancc was invalid hy reason that it impermissibly restricted
GouJ,,,,, J freedom of movement or of association. As already indicated, that
raises the Issue involved in Q 3, namely, whether the Ordinance was
consistent with those freedoms hy reason that its purpose was to
protect and preserve Aboriginnl people. II is in support of the
proposition that protection and preservation were the purpose of the
Ordinance. that the Commonwealth pleads that it is reasonably capable
of being viewed as appropliate and adapted (495), or, alternatively,
that it was appropriate and adapted to achieving that purpose. And in
this regard, the Commonwealth contends that issues of appropriate
aclnptation are to be determined by reference to the standards and
perceptions of the period in which thl: Ordinance operated. not those
of the present day.
1 have earlier described the freedoms of movement and of
association as subsidiary to the freedom of political communication
n:qUlred for the maintenance of the system of representative
government for which the Constitution rrovides. They arc suhsidiary
only in the sense that they supp0l1 and supplement that latter freedom
and Ilot 111 the sense that they are inferior to or less robust thnn it. On
the contrary, their nature is such that, although, as will later appear. the
tcst which dctemlines whether or not they have been infringed is the
same as that appilcabIc 1I1 the case of the implied freedom of pol itical
discussion, the circumstances in which a law may va1idly restrict
freedom of movement and discussion are. to some extent, more
circulTlscriheu than is the case with the implied freedom of political
discussion In this respect, it is to he notcd that not every restnction on
cOlIHnunIcation is a restriction on the communication of political ideas
and in/ormation. On the other ham\, any abridgment of the nght to
move in socicty and to associate with one's kllow citizens necessarily

(49.:1) Set: l'"naally wi(h r~<;pc~t to (h~ award of ex~mplat).' damal'~s, (/U.'1l " 1111",
F"ilj,1X & So"s Pn' Lid (19661117 CLR ll~ ~( l~'J. U~-Il<), p'" T~ylor J:
at 1.:17, p~r Menzies 1: at 15.:1, per \Vinucycr J: at 160-161. pCI' Owcn J; AI,sll'o/ilin
C"".\'olidaled Pre."" ,. Ur,.11 (1966) 117 eLR t~5, For c~.\~\ wh"r~ e~~rnpb')"
damagc, have be~n aw~rded in adiun, of (r~,pu" (0 the per'on. ,cee F""lill \'
K<lIUf'rldi-, (]L)li2) lOR CLR 177; La",I;, COII'Ii"" (19871 16.:1 CLR I ~Ild, fo,- f"l,e
imprisonmenL 'C", Hildie v Mom:y (l763) 2 Wils KB 205 [')5 1-'1{ 7liR]: W,IIWIJ ,
;'Y{"r"I"dl (Jnd Cade (l971) 12.. C1.R 621.
(.:I'))) This ull"m,uive musl 1-,,, rcj~Cled, it rdating to the t,'st of chJrJct~ri,atioll r~tha
than (0 tes(ing: whcther a law infringes (h~ irnpli~d fr"~(t,,rn. Sc" e"nli!f" ,
Tlte Commot!weal/I! (1994) Ig2 CLR 272 a( 300, per \lu,011 CJ. Jt :18S. p"r
GJudron J,
190CLRl] OF AUSTRALIA 127

restricts the oppOrlunity 10 ohtain and m1parl infonnation and ideas II C OF A

1':1%-1 Y':17
with respect to political mailers.
Tn Australian Capital Television, Masun CJ drew a distinction, in
relation to the implied freedom of political communicmion, between
I'He
"restrictions on communication which target ideas or infunnation and O>MMO'<-
those which restrict an [Ietivity or mode of communication by which WHUH

ideas or mfonnation arc transmitted" (496). Of the fomlCr, his Honour

said that, "only a compelling justification will W<lrrant the imposition Gaudnm J

of a burden on free communication by way of restriction and the

restnction must hc no more than is reasonahly necessary to achicve the
protection of the competing public mterest which is invoked to justify
the burden on communication" (497). He allowed a less stringent test
in the case of restrictions imposed on an activity or modc or
communication, requiring only that "the restriction [be] re[lson[lbly
necessary to achieve thc competing puhlic intcrest".
Similarly, Deane and Toohey JJ expressed the view in Australian
Capital Television that "a law whose character is that of a law with
respect to the pruhihition or rcstnction of [political] commumcations
will be much more difficult to justify than will a law whose
character is that of a law WIth respect to some uther suhject and whose
effect on such commumcations tS unrelated to their nature as political
communications" (491':). And a like dichotomy was recognised hy
McHugh J who drew a distinction between' 'Ia"'is which restrict the
freedom of electoral communicmions by prohibiting or regulating their
contents and laws which incidentally limit that freedom by regulating
the timl.:, placl.: or manner or communication" (499). As to the fom1cr,
his Honour said th~t they "[couldl only he upheld on grounds or
compelling justificmion", where[ls the latter could be upheld if
"designed to protect some competing aspect of the public interest anJ
the restraint [wast not disproportionate to the end sought to be
achieved" (500).
In Nationwide News, I expressed the vie\v, by reference to what [
said in Australian Capiral Television, that a law which restricts
political communication is valid "only if its purpose is not to impair
freedom [of political communication], hUl to secure some end within
power in a man ncr which, having regard to the general law as it has

(496) AJI,I'!mhlill Cal'iralldn'i.>iollll':l921 177 CLR 10(, al t4-'.

(497) AJI,<1mhan Capiral Fe/Hlsi'm (t':ln) 177 CLR 10(, at 143. S~~ ah() at 23.'i, per
M<:Ilugh J: CIiIlIi/1;' l' {'he COl>1moJn,",'atlh (t994) 1i{2 CLR 272 at 299, pn
Ma:;on CJ,
(498) Auslmlian Capi/al Telni"io/l (1':192) t77 CLR 106 at t69. See ~Iw ,Vallomnd"
,I'inn Pn' !.til \' Will.< 1l')'J2) 177 CLR t at 7677. ref I:k.'ane and Toohey JJ:
('''Nhtk.' Th" C"mmom,eailh (1994) 182 OJI. 172 .It 3J7, pt'r l)eJne J,
(499,> AlIslraliali C"I'il,,1 relnl"io/l Fly Uti v Tlip Commol1\H"tllh (t992) 177 CLR t06
at 2,14-235
(SOO) A".llrati,,,. C"piral Teln'i""" (t992) 177 CLlI. 106 al23S,
I2R HIGH COURT [1996-1997

He"" A developed in relation to the written and spoken word, IS reasonably

1996-1997
and appropriately adapted to that end" (SOl).
The various formulations in AI/stralian Capita! Televisiun and in
Nationwide News point 10 but one test of a law which restricts political
THE
communication; namely, whether the purpose of the law in question is
COMMO"-
"'E,\LTll to prohibit or restrict political communication. Questions directed to
compelling justification, necessity and proportionality arc, at base,
questions directed to ascertaimng the purpose of the law in question.
As earlier indicated, the purpOSL: or a law is to be ascertained by its
nature, its operation and the facts with which it deals. In ascertaining
that purpose, a Jaw which IS, In terms, a prohibition or restriction on
pohtical communication or which operates directly to prevent or
curtail discussion of political matters is, in my Vlew, to he taken to
have that purpose unless the prohibition or restriction is necessary for
the attainment of some overriding puhlic purpose (for example, to
prevent criminal conspiracies) or. in terms used hy Dcane ] in Cllnliffe
v The Commoml'ealth, to satisly some "pressing social nced" (502)
(for example, to prevent sedition). Whether a law is necessary for
some such purpose depends on whether it is "no more than is
proportionate to the legitimate aim pursued" (503). That in turn
depcnds on whether less drastic measurcs arc available (504). On the
other hamL a law wilh respect to some subject matter unconnected
with the discussion of political mailers and which only incidentally
impinges on the freedom of that diSCUSSIOn, is not to be taken to be a
law for the purpose of restricting that freedom if it IS reasonahly
appropriate and adapted or. which is the same thing, proportionate to
some legitimate purpose connected with that other subject matter.
In my VICW, the test applicable in the case of the implied freedom of
political communication is equally applicable to the suhsidiary
freedoms of movement and association which SUppOrl that freedom.
namely. whether the purpose of the law m question is to restrict those
freedoms. Although the test is the same. it may involve different
considerations in 111e sense that the matters of public importance or
pressing social need which will justify a law restricting freedom of
movement or of association will ordinarily be of a different nature
from those which justify a law restricting political communication.

(SOl) Nali"'IIl'ide New.' (IY'l~) 177 CLR 1 at 95, See Jiso A",<lmlia" C"l'illll TeI""i,\';'1/I
I'll' !.IJ ,. The C""'''''''MC,IM (19'12) 177 CLR 106 m 21721~: Cllllliffe " Tile
C"mlllOlme"ilh (1994) 182 CLR 17~ Clt387
(SOl) Omliffe (1994) 182 CLR 272 at ~"o. referring to i1tromey-Gcllerol \' ulwrdla"
l'lewI{"'fJi'r\ lA'" 2} 11')90] I AC 109 at 2IU-28". per Lorrl Goff of Chin~lcy. S~c
also Tllc,,[!ilal!{)u,\' \' Herald & Wed!.\' Times Ltd (1994) 182 CLR 10" Jt 179, per
Dean~ J.
(5(1.') e",difl" \' {he CflJlJJJjo""eallh 1,199-+) 1:52 eLI< 272 al .140, per DCJJIC j, S,'e alsQ
n'~"f''''''lIIus \' Herald & W"dly rimes f./{t (1994) 182 CLR 10" Jl ]7').
(<;04) Sec IV"tl"'I"'ld,, /'k\l'-' 1'1." l./{I \' Will., (1992) 177 CLR I JI 51. per F1rmnan J
190CLRli OF AUSTRALIA 129

Similarly, different considerations may he hrought mlo piny where the Hen, i\
19'>6-1997
question is one of proportionality.
lL is necessary now to tum to the terms and operation of the K~"Gr'K
Ordinance. Sections 6 <lnu 16 conferred powers on the Chief Protector ,
Tm_
and, later. the Director which, if exercised, operated Jircctly to prevent COMMON
freedom of movement and of associntion. Moreover, they were \'iEALTH

couchcu in terms directly contrary to those freedoms, S 6 conferring a

Gaud"," J
power to take people into custody and s 16 conferring power to cause
Aboriginal people to be "kept within Ihe houndaries of .. reserve[s]
or Aboriginal institution[sJ". Similarly, the power conferred by
s 67(1)(c) to make regulations "enabling any Aboriginal or half-caste
child to be sent to and detained in an Ahoriginal Institution or
Industrial School" pennitted regulations which directly prcvcnted
frecdom of movcment and of association. lndeed, it only permitted
regulations of that kind. Accordingly, in my view, s 6 (to the extent
that it authorised the taking of people into custody), and ss 16 and
67(1)(c) were only valid if necessary for the altmnment of some
overriding public purpose or for the satisfaction of some prcssing
social need.
Because s 6 (to the extent that it authorised the taking of people into
custody) and ss 16 and 67(l)(c) were only valid if necessary for the
attainment of some overriding public purpose or the satisfaction of
some public need, the Commonwealth's plea that the Ordinance is or
is reasonably capable of being viewed as appropriate and adapted to
preservmg and protecting Aboriginal people provides no answer to the
question whether it infringed constitutional freedoms.
If it could be said that the Ordinance was necessary for the
preservation or protection of Aboriginal people. it would follow that it
was valid in its entin:ty. However, lhe COllllllll[lWealth asserts no such
necessity. Moreover, there is no basis on which it could be said that
those provisions of the Ordinance which authorised action impairing
the rights of Aboriginal people to move in society and to associate
with their fellow citizens, including their fellow Ahoriginal
Australians. were in any way necessary for the protection or
preservation of Aboriginal people or, mdeed. those Aboriginal people
whose rights in that regard were. in fact, CUltailed. Cenainly, the
powers conferred on the Chief Protector and, later, the Director oy ss 6
and 16 were not conditioned on any necessity to take Aboriginal
people into custody or to keep and dctain them in reserves and
institutions for their protection or preservation.
Nor were the power.-; conferred hy ss 6 and 16 of the Ordinance
conditioned on the formation of an opinion that their exercise was
necessary to proti.:ct or pn:serw Aboriginal peopk. On the contrary,
the power conferred hy s 16 extended to all Ahoriginals. except those
falling within the limited eategofll:s specifii.:d in sub-s (3), and was
entirely at large: the exercise of the power conferred by s 6( I) to take
pcoplc into custody was suhject only to the formatioll of an opinion hy
the Chief Protector and, later, the Director that it was' 'necessary or
130 HIGH COURT [ ISI()6- ISlt;17

H C llF A desirable in the interests of the Aboriginal or half-caste for him to do

1Q9!i19Q7
so Inh:resting questions rmght have anscn had the pOWl:r heen
conditioned on thl: formation of an opmlOn that it was necessary to
, undertake the custody of the person concerned for his or her welfare.
T~F
However s 6(1} cannot he rl:ad m that way. Nor can it he read down to
Cn-'IMo".
\\[;,\UH operate in that way: that would be to give it an entirely different
operation. Funher- the regulation making power conferred hy
s 67(1)(e} \."'~s not conditioned by reference to any necessity to protect
or preserve any of the Aboriginal people of the Northern Territory.
It rollows in my view that s 6, so far as it conferred authority to take
people into custody, and ss 16 and 67(l)(c) were at all times invalid.
As the plaintilTs complain only of thclr forced removal and dl:tcntion
in Aboriginal reserves and institutions. it is unnecessary to consider
whether othl:r provislUns of the Ordmance which did not nnpmge on
their freedom of movement and association were also invulid. So far as
concerns the Admimstration Act. its general provisions can and should
he read as conferring power suhject to the Constitution, So read, no
question arises as to its validity.
The Comtrlollwealrh's pfea. purpose and proporriollo!iry of rhe
Ordinuna ill relmion ro s I 16 or
the CO/lstitutio/l
As earlier indicated there are two questions which arise \.",ith respect
to this aspect of the case. -TIle first is \-\'hether. in terms of s 116. the
Ordinance wus a 1'1'>'.' "prohihiting thl: free exerCIse of un)' religion".
The second is whether it was a IQW made for that purpose. Both
qUl:stions assuml: that the Ahongmal people ortbe Northern Temtory,
or at least some of them, had heliefs or practices which arc properly
classified as a religion for thc purposes of s 116. Although thcre arc
somc statemcnts in thl: Jecidcd cases to thl: d'fl:ct that Ahoriginal
beliefs are properly classified as religious beliefs (505), that is a
questIOn which involves factual considerations and cannot be
detenmncd at this stagl: or the proceedings. for present purposes,
however. that issue may hc assumed m favour or the plaintiffs. On the
hasis of that assumption, it is possible to turn to the rirst qucstion of
law raised hy s 116, namely, whether the Ordinance was a law
"prohibiting" the exercise of rd igion,
The expression 'prohibiting the free eX(TClSC or any rchglOn"
suggests that, in that respect. s 116 is concerned only with laws v..-hich,
in tcrms, ban religious pri.Kti..:es or olherv.l~e forbid the frec excrcisc
of religion. Some support for that vievv is to he !"ounu in the statement
of Griffith CJ in Kryg,lJer v Williams (506) that "a law requiring a man
10 do an act which his rdigion rorhids [mIght] be ohjectionahle on

C'i(5) Sec. Mllin,'''''1 \' :VI/bate" 1',1' 1.ld (1971) 17 FLR 14t nt 167, per HI,Kki:>"m J:
AI",,'lgll!at I.el'''! Rll'hlS l!mu""1II t",. \. So",I, Ausmdia (HilldIlUlrs!> hi",,,!
e"e) (199-') 64 SASR 551 at 555. per tkbdk J
(S06) (1912) J-' CLR 366 at J6'),
190 CLR 1J OF AUSTRALIA 131

moral grounds, hut it does not come within the prohihition of s 116". Hen, A
1<J96-t<J<J7
Moreover, as Barwick. CJ pointed out in Atforney-General (Viet). Ex
rei Rlack v The COJrlmomt'calth (507), S 116 is directed to "the making
of law", not "the administration of a law".
THE
There arc two matters, one textual, the other contextuaL which in
Co".''''''-
my view, tell against construing s 116 as applying only to laws which. WHLTH

in terms, ban religious practices or otherwise prohibit the free exercise

of religion. First, s 116 speaks of the exercise of religion. and it
follows, as Latham CJ pointed out in Adelaide Co of Jehovah's
Witnesses Inc (SOg), that "it is intended to protect from the operation
of any Commonwealth laws acts which arc done In the exercise of
religion". The contextual considcratiun is that, pUlling s 122 to one
side, the Commonwealth has no power to legislate with respect to
religion (509), and, thus, a law which. in terms, prohibits religious
practice would, ordinarily, not he a law on a suhject matter with
respect to which the Commonwealth has any pO\vcr to legislatc. These
considerations provide powerful suppon for the view that s 116 was
intended to extend to laws which operate to prevent the free exercise
of religion, not merely those which, in temJS, ban it.
Another matter which points in favour of construing s 116 as
extending to laws which prevent the free exercise of religion, not
merely those which. in temlS, effect a prohihition In Ihat regard, is the
need to construe constitutional guarantees liherally, even limited
guarantees of the kind effeclcd hy s 116. ln this respect. it IS
Inconslstcnt with estahlished priociples of constitutional construction
to construe constitutional guarantees as concerned with form rather
than substance (510). So too, it is inconsistent \>"ith establishcd
principle to interprci constilUtional guarantees "pedantically" (511) so
tbat they may be circumvented by legislative provisions which purport
to do indirectly what cannot be done directly (512).

(:'i07) (I 'lSI) I'-Ili CLR :'i'i9 al :'iSO-'i81

(:'iOS) (t943) 67 eLI{ I Iii at 124
(50':!) Sec Ade!<,ide Cli or Jeh,mlh 's Wimn.I't.'s 11", .. Tilt., C"mmo""'elllth (1943) 67 CLR
116m 154.pcrStarkcJ.
1510) Sec Sireet., QueenslalJd Bar A\'w,:iari'JI! (1989) 168 CLR 461 at .'i27-'i28, pn
Deane J: at 569. per Gaudron J: Mulua! PI''''' & Sial! PI)' Ud .. The
Commol!l';eaITIt (1994) 17',1 eLI{ 15.'i at 184, pCI' Deane and Gaudmn JJ:
Geol'!!it,di.\ r Au.>mdialJ ",,,I (A'eneas Telecm",,,,,,,iuuionl C"'pormio" (1',1<)4)
179 eLK 2'!7 at 305, per :o..1.ason CJ, D~an~ and Gaudl'Orl JJ: at .'20. pcI' Toohcy J.
(51\) See B(mk oj NSIV \' Tlte Commmmealih (194R) 76 CLR I at ~'-I9, pcr Dixon J. Se<:
also 111e CO!ll!llo/HH',illil .' Tasmania (the Ta.I"IJ"",ialJ O"m Case) 119R3j I.'iS CLR
I at t45. per :o..1.asorl J: m 282-2R3. pcr Dcanc J: /l1"I[wl Pools & Stall Ply I.u! ,
"flle COJJJrl/OIIWealllt {I9941 174 CLR 155 at t84, pa Deane amt Gaudron JJ;
at 200. pa Daw,on and Toohey JJ: Georgiadis," "'''Slmlian am} O"(I'5e<15
Telecommu/lico/l(J!I.\ Corpora/ion (l944) 174 CLR 297 at .,03, per Mason CJ.
Deane and Gaudnm JJ.
(5121 See Bonk o! NSW v The CommolJwealth (1948) 76 CLR I at 349-YiO. pt'r
Dixon J: GeNliiadi.> v AusTralialJ ami th'a.IHIs Teleumm"",icali,ms C",powtio"
(19',14) 179 CLR 297 ~t 305, p"r Mason CJ, Deane and Gaudron JJ,
132 HIGH COURT [ 1996-1997

He "r. ,\ The mailers to which n::fcrcnce has been made compel the
1996-1997
conclusion that s 116 extends to laws which prevcnt the free exercise
of religion. Am! the need to construe guarantees so that they are not
circumvented by allowing to he uone indircctly what cannot be done
rll"
C()MW'-~
dnectly has the consequence that s 116 extends to provisions which
wEALTH authorisc acts which prevent the free exercise of religion, not merely
provisions which operate of their own force to prevent that exercise.
Agmn, the lJllcstion whether the Ordinance authorised acts which
prevented the free exercise of religion involves factual Issues which
cannot presently be uetennined. However, if Aboriginal people had
practices anu beliefs which are properly characterised as a religion for
the purposes of s 116, and if as would seem likely, those practices
were carried out 111 association with other members of the Aboriginal
community to "'ihich they belonged or at sacreu sites or other places on
their traditional lanus, removal from their communities and their
traditional lands would, necessarily, have prevented the free exercise
of theIr rehgion. Whether or not that was the case remains to he
dccidcd_ But on the assumption that it was, the question arises whether
the Ordinance was a law "for prohihiting the free exercIse of any
religion
In A,dcfuide Co of lehovahs Witnesses Inc (513), Latham CJ
ohserved in relation to s 116 that "[tlhe word 'for' shows that the
purpose of the legislation in lJuestion may properly he taken mto
account in determining whether or not it is a law of the prohihited
character". In my view, that is not entirely accurate. 111e use of the
word 'for" indicates that purpose is thc criterion anu the sole criterion
selected hy s 116 for invalidity. Thus, purpose must be taken mto
accounT. I-'urther, it is the only matter to be taken into account in
determining whether a law mfringes s 116.
In emphasising that purpose is the criterion selected by s 116, I uo
not overlook observations to the efTect, for example, that s 116 is nol
infnnged by laws which "prevent persons or bodies from
disseminating subversive principles or uoctrincs or those prejuulciallO
the defence of the Commonwealth or the efficient prosecution of tht:
war' (514) or that "[ijt is consistent with the maintenance of religious
liherty for the State to restrain actions and courses of conduct whieh
are incunsistent with the maintenance of civil governmenl or
pre]udlcial to the continued existence of the community" (515). Those
statements are undouhtedly correct. However, they uo not stall: the
criterion of invaliuity selected by s 116. It is purpose. not the

(~I.\)(1'J4-')67CLIl.I16at H2,
(514) Adelaid" Co ()rkhrll'rli, ',I lVime"ses 1m v Th,' Comrlwllw",ilrh (194,,\) 67 CLR j 16
al 119. per Rich J Sr~ nlso nt 1.\2. pCI' Lnthnm CJ: at I'i). pn Stmkc 1: nt 160-
161 per \l,'jlliam, J
(515) Adrl"id" C() ()(./dwl'IIlr'.I' Wime,lse,I' h" .. The C'''''"IOt!lI'e"lth 1194.'\) 67 CLR 116
,II I 31 p~r l.alharn CJ.
190CLRlj OF AUSTRALIA 133

continued existence of society, which that provision selects as the 11 Co... A

1~%_1~97
mechanism by which "to reconcile religiuus freedom with ordcrcd
government" (516).
In Attomey-Gclleral (Vict); Ex ret Black (517), Barwick CJ
THF
expressed the view, in relation to that part of s 116 whieh protects
against Inws '"for cstahlishing any religion", that for "laJ law to
CO"""".
WHITH

satisfy [that] description lit] must have that objective as its express and
... single purpose", If that is correct, it is because of what is involved
in the notion of "'estahlishing fa] religion". Certainly, that notion
involves something conceptually ditlerent from "impOSIng
religious observance", "prohibiting the free exercise of any religion"
or requiring religious tests "as a qualification for. office or public
trust under the Commonwenlth", they heing the other matters against
which s 116 protects. Moreover. s 116 is not, in terms, directed to laws
the express and single purpose of which offends one or other of its
proscriptions. Rather. its terms are sufficiently wide to encompass any
law which has a proscrihed purpose. And the principles of
construction 10 which reference has heen made require thaI, save,
perhaps, in its application to laws "for estahlishing ta] religion",
s 116 he so interpreted lest it be robbed of its efficacy.
It IS convenient now to turn to the Commonwealth's plea that the
purpose of the Ordinance was ""the protection and preservation of
persons of the Ahorlginal race" and the issues raised by Q 3. Clearly.
a law may have more than one purpose. Similarly, a particular purpose
may be subsumed in a larger or more general purpose. TIlat tattcr
proposition is well illustrated by the present case. It is clear from the
terms of the Ordinance that one of Its purposes, evident from the terms
of s 16, was to remove Aboriginal and hair-caste people to and keep
them in Aboriginal reserves and institutions. That purpose is not
necessarily inconsistent with the more general purpose which the
Commonwealth asserts. And neither purpose is necessarily inconsist-
ent wllh the purpose of removing Ahoriginal childrcn ['rom their
families and communities, therehy preventing them from participating
in cOlnmumty practices. lndeed, in the ahsence of some overriding
social or humanitarian need - and nonc is asserted -- it might well
be concluded that one purpose of the power conferred hy s 16 of the
Ordinance was to remove Ahoriginal and half-caste children from their
communities and, thus, prevcnt thclr participation in community
practiccs. And if those practices included religious practices, that
purpose necessarily extended to prohibiting the free exercise of
religion,
As with the implied freedom or political communication and the
implied freedoms of movement and association. a law will not he a

{5161 Addalde Co ofJelwmll's 11'ilne\'\eT tlJ< I' The CmnmolJllcallli ()')4Jj 67 eLI<. 116
~t I n, per L~lh"!1l G.
(517) (In)) 146 CLR 559 at 57\.1.
134 HIGH COURT lISl96-1997

He or ,\ law for "prohibiting the free exercisl: of any rl:hgion", nOlwilhst:md-

-
19%-1'197

Kl<l'GER
ing thaL In terms, it does just that or that it operates directly with that
conSl:ljucnce, if it is necessary to attain some overriding public
purpose or to siltisfy some pressing social need. Nor will it have that
TilE
CtNW).'-
purpose if it is a Jaw for some specific purpose unconnected with the
\\E,\LTII free exercise of religiiln and only incidentally atleets that freedom. It
is not pkaded in the present case either that the Ordinance was
C,uJ",")
necessary for the protection or preservation of Ahonginul peopk or
thnt its purpose was a purpose unconnected with the liTe exercisc of
rcligion. The plea is, thus, no answer to the plaintiffs' claim that the
Ordinanc~ was Invalid hy reason that it infringed s 116.
Were the Commonwealth to further amend its defence to assert that
the purpose of protecting and presl:rvlng Ahonglnal people was
unconnected with the purpose of prohibiting the free exercise of
religion. a question might arise, If the pka werl: to he maue good.
whether the mterference with religious freedom, if any, effected by the
Ordinance was appropriate and adapted or. which IS the saInt: thing,
proportionate to the protection and preservation of those peopk. And
us the purpose of a law is to he determined by reference to . 'the facts
v,'ith which it deals" (5Itl), that question would necessarily have to he
answered hy reference to the conditions of the time In which it
operated. However. the answo.;r to the question depends on an anulysis
of the law's operation, not on subjectivc vicws and percefltiolls.
It follows that the matters pleaded by the Commonwealth and
referred to m Q 3 arc not rckvant to the: ljuestion whether the
Ordlllance mfrmged s 116. Whether the Ordinance "..as invalid on thar
account is not a matter th"t can presently be determined
Application of lilllilariOiI laws
The seventh question reserved by the Chief Justice asks whether the
plaintiffs' claims for damages are statute-barred and, if so, by what
statute. r have curlier indicated that, in my view, thl:re is nl)
constilutional cause of action as asscrted by the plaintiffs and, thus.
Q 7 only arises in relation to their common law claims.
There are certain matters whieh should be noted at the outset. First.
although the Parilalllent has power. pursuant to s 78 of the
Constitution, to ""make laws conferring rights to proceed against thc
Commonwealth or a State in respect of matters within the limits of the
judicial power [of lht: Commonwealth]", it has not at any stage
enacted a general statute of limitations with respect 10 those mailers.
t-:or has it e:'xen:iscd the express incidental power l'onfern:d by
s 51 (xxxix) l)f lht: Constitution to enact a gmnal statute of limitations
with respect to those or other matters falling within the judicial power
of the Commo!l\''-ealth. further. no general limitation law has heen

(51~) AI/III/I" Yates & C"I'/1 Lid \' Vef:ewb/e Sad.f C"lIImirla (1')45) 71 CLR 37 Jl 68.
P~I [,mham CJ
190 CLR II OF AUSTRALIA 135

enacted pursuant to s 122 or the Constitution, whether by the He OF A

t9%t997
Parliament of the Commonwcallh or by the legislatures of the
Australian Capital Territory or the Northern Territory, which purports,
in terms, to apply to actions brought against the Commonwealth in this
THE
Court with respect to acts or events occurring in a Tcnilory. Moreover. COMMON-
it is well settled that State Jaws cannot apply of their own force to WEALTH

proceedings in this Court (519). Thus, it is common ground that, if

there is a limitation provision applicable in this case, it is one that is
made applicahle by the Judiciary Act 1903 (Cth).
The relevant provisions of the Judiciary Act arc 55 56(1), 64, 79 and
80. Section 56( 1) allows that a suit may be brought against the
Commonwealth in this Court, In a court of the State or Territory in
which thc claim arose or, if it did not arise in a State or Territory, any
other court of competent jurisdiction of a State or Territory. It was
suggested by Windeyer J in Sue/lie v 111(' Commonwealth (520) that
s 56 of the Judiciary Act directs that an action against the
Commonwcalth "IS to bc tned accordmg to the lex loci delicti; and
when the action is brought in this Court that bccomes the lex fori".
However, the Commonv.'ealth docs not contenu that s 56 has any
relevant operation in this case. Nor docs it arguc that s HO IS relevant.
It does argue, however, that ss 6.:1 and 79 of the Judiciarv Aer operate
so as to make the Limitation Act 19R1 (NT) (the NT Limitation Act)
applicable to the plaintiffs' claims.
Before turning to ss 64 and 79 of the Judiciary r1r't, it is convenient
that I 111dieate my view with respect to ss 56 and 80. Despite the
observation of Windeyer J in Sue/de v The CommO/JIvealth (521), s 56
docs no!. in my VIew, opl:rate to require application of the laws of the
State or Territory in which the events giving fiSC to a claim against the
Commonwealth occur. As the parties do not contend otherwise, it is
unnecessary to state the reasons which lead me to that view (522).
I do, however, think that. 111 the absence of Commonwealth legislation
on the subject, it is the common law in Australia that uetermines the
body of law, including limitation provisions, to be applied in mailers
of federal jurisdiction and that the effect of s 1m is to require
application of that body of law before resort is had to s 79 (523). In

(51',)} john R"bel'lsOII <I.: Co Lid v Ferguson hOlistiil'lUEr.< Pr,' Lrd (1973) 1~9 CLR 65
J( 7'J. per .\1enlies J~ J( ln, per Gibbs J~ Jt 'n. pn Mason J,
(521)) (1967) 116 CLf< 353 ~I 355-35G. Se~ ~bo AJu-'!UIIW I' The C"mmoliwelilih (1937)
57 CLR .)I~ a( 547-54x, p~r Dixon J: "t ,<;50-5.'11 p~r b,,!( and \1cTi~m~n JJ;
Brell>'i"iilOi1 \' (;odle",,,,, (19xR) 169 CLR 41 ill II R. per Brcnn"n J; al IS 1-152,
f'<'r Dawson J
(.'i~I) (1%7) IIG CLI{ 353 J( 3'i5-356,
(522) However, on this poin! sec The C'JI/""Oi1H',,,i!th I' Mm'ell (1997) 71 ALJR 1102.
pn (;~udron J
(523) Section 80 provides: "So tar as (h~ laws or (h~ Commonwealth ar~ not applicahk
or so f~r;1.\ Ih~ir provision:; ar~ insufflci~1H to CJfry them imo dfect. or to provide
adc'-Ju~tc n:",~Jil"' or punishJll~nl. lh~ common law in Australi" "-, rno(lifi~d by
the Constitution Jnd by the ,tJtute IJW in force in the State or TcrrilOry in whic],
]36 HIGH COURT [1996-1997

Hene/\, this respect, it should be noted that s 79 operates "except as otherwise

19961997
provided hy the Constitution [and1 the laws of the Commonwealth"
which, necessarily include s 80 (524). However, as the VICW which
I take with respect to s 80 does not lead to any different result in this
THE
COMMON-
case, it is convenient to proceed on the basis thaI it has no application
WEAUII and that the question whether the plaintiffs' actions are statute-barred
is to be answered by resort to ss 64 and 79.
Gauu,o" J Section 64 of the Judiciary Act relevantly provides that. in any suit
to which the Commonwealth is a party, "the fights of parties shall as
nearly as possible be the same as in a suit between subject and
subject". Section 79 of the Judiciary Act provides:
"The laws of each State or Territory, mcluding the laws relating 10
procedure, evidence. and the competency of witnesses, shall, except
as otherwise provided hy the Constitution or the laws of the
Commonwealth, he hinding on all Courts exercising federal
jurisdiction in that State or Territory in all cases 10 which they are
applicable.' .
11 is convenient to set out the steps in the Commonwealth's
argument that the NT Limitation Act applies to the plaintiffs' claims.
The first step is to argue that s 79 of the Judiciary Act applies to this
Court; the second is 10 contend thai s 79 "picks up" for each action
the laws of the State or Territory in which is located the Registry of
the Court in which lhat particular action was commenced; the third
step is 10 say thm in the first action. which was commenced in the
Melbourne Registry. s 79 picks up the Choice oj" Law (Limilation
Periods) Act 1993 (Viet) and that that Act requires that the NT
Limitation Act be applied; the fourth step is to claim that in the sccond
action, comlOenced 10 the Darwin Registry, s 79 operates directly 10
pick up the NT Limitation Act. The fifth and final stcp is to argue that
s 64 requires that the provisions of the NT Limitation Aet be applied
as they would be in "a suit between subject and suhject". There is no
doubt that if s 79 operates. either itself or by means of another law to
"pick up" a limitation provision, s 64 requires thai that limitation
provision be applied in proceedings to which lhe Commonwealth is a
party (525). However, the earlier steps in the Commonwealth's
argument require analysis.
It is clear that, in terms of s 79 of the luliiciary Act, this Court is a

(52]) emU
the Court in whkh the jurisdiction i, <,x<,rci,ed is held <;hall, so far as it is
applicable and not inconoi,tent with the Con<;litution and the laws of the
COllllllonwealth, govern all Coun, ex<'reising federat jurisdiction in the <,x~rci~ or
their jurisdiction in civil and criminal matte,,"'
(.'i24) See The C"mmmn','fairh '" Melt'ell (1997) 7\ ALJR IIOZ, per Gnudron J,
(525) See Mil!!uire l' Simpsml (1977) 139 CLR 362,
190 CLR IJ OF AUSTRALIA 137

court "exercising federal jurisdiction" (526). It is, however, difficult HCOFA

to say that it exercises jurisdiction in a State or Territory. Rather, it 1996-1997
exercises its jurisdiction throughout Australia, sitting for that purpose KRUGER
in Canberra, Ihe nation's capital, and sometimes in the States. The ,
THE
plaintiffs contend that because this Court exercises jurisdiction COMMON-
throughout Australia, the words of s 7Y arc not apl to apply to it. And "''EALTH

in support of that proposition, they contend that there is no

construction which can guarantee against anomalous consequences. G,u"nm J

It cannot be demed that there arc difficulties mvolved in the

application of s 79 to proceedings in this Court. Those difficulties
have, on occas1Ons, led to the vIew that s 79 operates 10 "pick up" the
laws of the Stale or Territory in which is located the Registry in which
proceedings are commenced (527). Certainly, that appronch has or
mOlY huve unomalous consequences, as noted by Deane J in McKain v
R W Miller &: Co (SA) Ply Ltd (528). In that case, his Honour said of
the circumstances involved in Pedersen v Young (529) that "[ill', for
example, the defendant lin that case] had sued the plaintiff in
negligence in proceedings instituted in the Registry of this Court in the
prima facie appropriate place (ie Queenslnnd) on the day on which the
plaintiff instiluted the proceedings against him in New South Wnles
and the proceedings had been heard in Chambers, the defendant's
action would have been harred but the plmntiff's would not,
notwithstanding that hath actions arose out of the same accident and
had been instituted in the same court on the same day".
It may be thai the anomalous consequences adverted to by Deane J
in McKain v R W Miller & Co (SA) Pty Ltd huve now been avoided, if
not completely, to a very significant extent, by the enactment, in recent
years, of uniform State and Territory laws directing that. if the
substantive law of another Stute or Territory applies 10 a claim bdore
a court, the limitation laws of that other State or Territory are to be
Ircated as part of its suhstantive law and are to be applied

(526) See, 26(<:) of the AU.' llllerpre/ali"n Act 190t (Clh) which J",fin"" "Coun
exerci,ing ft'tlera1 juri,Jidion" to m",an "any court wilen ",x",rcising federal
juri,diction" and 10 include "kJeml court"';' 26(b) ddin",s "Fo:d"'ral Court" to
mean "the High Coun or any coun creat",d by Ih", Par[iam",nt". See also Cohen v
CO/len (1929) -42 CLR 91 al 99, per Dixon J: Musgruve I' The Commonwealth
(1937) 57 CLR 514 al 53[-532, p<:r Latham CJ: Bainoridxe,Hul>ker v The
Mini.<ler for Trade Wid Cus/llms (t958) 99 CLR 52t at 536-537, per William, 1;
Pedenol " Young (1964) lJO CLR t62 at 165, per Kino J: at t67-168, per
MctlJ;ies J; at 169. pn WinJ",y",r J: at t71, per Ow",n 1.
(527) Sce. ego Pedersen v Young (1964) ItO CLR 162 at 165166, per Kiuo J: at 166,
per Taylor J; at 170-171, per Owen J; Hargen v Stule GOI'ernmflll (lI.<umll('e
()1fice (Q) (19K!) 154 CLR 318 at 322-323, pn SI",pllen J: Fielditlfi v Doran
(In4) 59 ALJR 511 at 514: 60 ALR 342 at 346, per Dawson J.
(528) (1991) 174 CLR I at 51-52.
(529) (\964) 110 CLR 162,
138 HIGH COURT [ 1996-11)97

II C OF A accordingly (530). At least that would seem 10 be the case if those

1':1':16-1997
laws arc capahle of heing "picked up" by s 79 - a question which
~

K~L'f;[R
remains to he considered. However. even if they are "picked up".
other anomalies may well arise if s 79 is construed as "picking up"
"
THE
State lind Tcrritory laws hy reference to the location of the RegIstry in
C''-''M''~
'Io'EALTH which proceedings are commenced.
It has also been suggested that s 79 of the Judiciary Act operates to
"pick up" the laws of the State or Territory in which an action is
"heard and determined" (530. And. bel:ause actions may be heard in
one Statc or Tcrritory and judgment delJvered in another. it has heen
said that s 79 operates to pick up the laws or the Stilte or Territory in
which thc Court sits to hear the matter (5321. And, in Parker t' The
Commonwealth (533), Windeyer J seems to have entertained the
possihility that s 79 might operate to pick up thc bws ur the State or
Territory in which judgment is delivered. It cannot be doubted that. if
s 79 operates in any of {hese ways, it may well produce' 'capricious
result[s]" (534). Morcover, as Windeyer J remarked in Pedersen v
Young, answers to the various questions raised \-",ith respcct to s 79 m
its appliCation to proceedings in this Court which are "logically
satisfying [arc] not readily apparent" (535). Even so. to construe s 79
as not applymg to this Court would be to risk grcater anomalies and.
perhaps. more capricious consequences than those which result from
its apphcation. At least that is so if, as has hecn assumed, s 80 has no
role to play in dctennining whether an action is statutc-harrcd.
As already indicaled, s 56 of the Judiciar\' ACT does not. in my vic,",".
impliedly direct that the law of the State or Territory lTI v.'hich the
events m question occurred should he applied in actions against the
Commonwealth. But evcn if it does, there is no like implication to be
drawn in cases in which the events did not occur in a State or
Territory, a possihility acknowledged hy the tenns of s 56(])(c). And
there is no provision giving rise to an implication of that kind In an
aclion hetween subject and suhJect, as m:curs when procccdings are
tHought in this Court bctween residents of different Slates (536).

(5JOl Sec Limila/ioll 040 !')(,9 (NS\V1. s n ~ml Clloice of LUll' (Limilillion Periods! ,1u
1'193 (~Sv.."L Choice {!f l.m" (limitalioll Periods! Au 1993 (Viet): {.onilallm, of
iln;ml.' Ac/ 1\J36 (SA). s 38,>,; l,imlltUirm of ildioliS .'1<'1 197cl (Q1. , 4J,\ and
Choice or {.{l\1 i/.i",irmi"" Period,) Au 1')\J6 (()I: C/",i,'e or l.aw IL,lllitol;",1
Period,) ,1e1 1994 (WA): Limil<l/i<m .'1,.'1 1974 (T~,l. ,S J2 . \J2t>: Ch"ice or rail
I Limitat;ml l'ai"dsj ACI 1994 {l\'TI: f,imilalioll Au 1985 (,ACT). " 5-';_';7.
{5:-I) f'ederun )' Young (J 964) J 10 ell<. 16~ Jt 1(,7_ pn \1~nl.ies J
{'i3~) See DepUl)' rcdcwl Commissioner "rTaxalioll \. Drmt'll (1 ')581 1no CLR 32 at ."1.
[J<:r Dixon CJ: Forkn C' The COIlIllIiJIIII'Utllll (1965) t 12 CLR 2'15 at J06, p~r
Wind"yt:, 1: .foh" RoiJal.HJII & Co Ud ,. Fergusm. Tr,,,,,rfrmners l'n' Ud (197.1l
12'1 eLI' 65 at 8081. [J<:r \knzie., J: at 88, [X'" Gibbs J; ~t '15. per !I..hsnn J.
(5JJ1 (I %5) 112 CU, 295 at J()6
(.:'U41 fJreavi"l'lo" L' Godlnll"'l (1988) 1(,9 CLR 41 at 1~ I pCI' D~\\,;()n J
(5J511'N!NSCIi v YtI""l: (19M) 110 CLR 162 at n{l,
15J6) ConstiWlion., 7';(i\).
190CLRlj OF AUSTRALIA 139

Putting s II g of the Constitution to one side (537), no provision of the HCm.-\

1996-1997
Constitution and no law of the Commonwealth provides directly as to
the law to be applied in such cases, And. of course, that was the case KU(;eR
when the Judicial)' Act was enacted in 1903. In that context and on the ,
rllr
assumption that s flO has no role to play in detennining the law to he
C<'''\1(\~'
applied in matters such as the present, s 79 must, in my view, he WF,"TH

construed as intended to apply to this Court, notwithstandmg that its

language docs not udequutely reflect the nature of its jUflsdiclion or the
manner of its exercise and notwithstanding the difficulties mevitably
involved in its application.
As appears from what hus been said with respect to the application
of s 79. there are various problems associated with the meaning to be
anribuled to the phrase "exercising federal jurisdiction in [a] State or
Territory". In its appheation to this Court that phrase docs not, as a
matter of ot'dinary language, direct attention to the State or Territory in
which is located the Registry in which proceedings are commenced.
Of the various possibilities to which reference has been made. the
hearing and detcmlination of the matter in issue most nearly eljuates
with the expression "exercising federal jurisdiction". Accordingly, I
would interpret s 79, in its application to this Court, as "picking up'
the la\.\'s of the State or Territory in which a matter is heard and
determined.
Should it oecur that a matter is heard in one place and is to he
determined in another, pragmatic considerations dictate that, in its
application to this Court, s 79 operates to pick up the laws of the State
or Territory in \vhieh the matter is heard. How else ean the parties
know on what basis their case should be conducted'! And, if the Court
were to hear the matter in more than one State or Territory, the same
pragmatic considerations require that s 79 be applied to pick up the
lav.' of the State or Territory in which the Court first sits to hear the
substance of the matter, unless it is clear that the Court will later sit in
a State or Territory more closely nmnccted with the matter.
This matter was heard and, so far as concerns the questions reserved
by the Chief Justice, will be determined in Canberra. Thus. s 79
operates to rick up the relevant laws of the Allstralian Capital
TefTltory, including its choice of law rules (538). It is not in issue that,
in actions in tort, the choice of law rules of all States and Territories
direct appilcation of the lex loci delicti. In this regard, it is sufficient to
note that that is the effect of the decision in Brem'illl\!un r
Godlemall (539) and there is nothing in the judgments in McKain I'

(537) Sec. wilh rCSr~d to lhc Jifkn;nl vi~w, a, 10 the operalion and efkcl of s lt~ of
the Con,lillltion. fjre<lv!II!!/(irl v Codterrl"'J (19HH) lll9 CLR 41
(53H) Sec Depulv Federal Commi"sioner ,,(Tawrilll! I' Hmw/I (1')5S1 100 CLR 32 al 39.
per Dixon L/'eder"UJ I' Y"IWX (1%4) 110 CLR 1112 al 11l9-l70. pcr \VinJcyer J
aml BrearinxuIH I' GodlpJJJ(lJI (lSi::;::;) J6') CLR 41 at H7-Hi>, per Wiholl am]
Gaudron JJ and the cascs lhere c'ilcJ
(539) I lng, 169 CUt 4-1
]40 HIGH COURT [ 1996- 19')7

He OF A R W Miller & Cn (SA) Pry Ltd (540) 10 suggest thai. In thai rcspL:Cl,
1996-1Y97
~
RreavilJgton \' God/ell/an was wrongly ucciucu. (541) Thus, the
KRL{ilR substantive len\' to be applied in this case is the law of the Northern
, Territory, as [Cljuircu hy the choice of law rules of the Australian
THE
C<l\1MON-
Capital Territory which are "picked up" hy s 7lJ of the Judiciary Act.
"'TALTH And prima facie, at least, s 79 also "picks up" s 56 of the Limitation
Act 1985 (ACT) (the ACT Limitation Act) which provides that:
"If the suhstantive law of another place being a State, another
Territory or New Zealand, is to govern a claim before a court of the
Territory, a limitation law of that place IS to hL: n::gan.lcd as part of
that substantive law amI applied accordingly by the court,'
The plaintiffs contend, hy reason of the reference in s 56 of the
ACT Limitation Act to "a court of the Territory", that that provision
relates to cOUl1s of the Australian Capital TI.:rr1tory and, thus, cannot
hI.: applied to prol.:eedings in this Court. In support of that proposition
thl.:)' rely on the statement hy Kitto J in Pedersen " YOIlIlg that s 79
"does not purport LD do morl.: than pil.:k up State la\vs with their
meaning unchangl.:d" (542). They also rely on COli/missioner oj Sramp
Duties (NSW) v Owells (No 2] (543) in which it was said:
"Whuher or not s 79 applies to the appellate JUrISdICtion of this
Court, it is no part of its purpose to pick up, so to speak, a provision
of Statl.: law imposing on State courts such <l function as that
assigned to them hy s 6(1) [of the SlIitors' FlIlId Act 1951 (KSW)]
and convert it into a provision imposing a like function on federal
COUtts."
There may be statutory provisions couched III terms which make it
impossihle for them to be "picked up" by s 79 of the Judiciary Acl.
Simllarly, there may be provisions which impose functions which are
heyond the reach of s 79. Even so, I see no reason why s 79 cannot
"pick up" limitation laws or other statutury provisions merely hecause
they are expressed in tenns applYlllg specifically to Stale or Tenitory
courts, RatheL as Gibbs J noted III John Rohal.I'OI] <.~ Co Ltd ~.
Fergu.l'On Transformers Pty Ltd (544):

If the lav,'s of a State could not apply tf. upon their true
construction ... they related only to the courlS or the State, it would
seem impossihle ever to find a Stale Jaw relating to pro<.:cdure.

(S40) (I')!)]) 174("LI{]

(541) cf (;ardller \ Wall",,, (1995) IH4 CLR 95
(54~) PedN"NI" rmmli (1'164) I]() CLR 162 JI 165. I!owever. ,ontrao( (h~ stal~menl
al I"g. p~r r>-knzi" J. wh,re il w~, ,aid: '11 may wdl be a pan of Ihe- office of
s, 7'J and SO III m~j;e ~ppljc~bk in this ("ow, ,;ome Sl~t~ q~tlJ1~' " . hj"h. upon
lheir Irue ~o"struetion .. apply of their own for~e- Dilly to eOUI1S governed by the
law of the Slaw in whieh Ihl' Coun i<, exercising its kd.:ral jllrisdiction.
L'iB, (193) gg CI.R l(,R ,11 l70
(544)(19~) 129 CLR 65 al 88.
190CLR1] OF AUSTRALIA 141

evidence or the competency of witnesses that could be rendered II Co, A

1996-1997
hinding on courts exercising federal jurisdiction, hecause most, if
not all. of such laws, upon their proper construction, would be KRlGhR
intended to apply In courts exercising Jurisdiction under State law." ,
I-lif
The reference in s 79 of the llldiciarr Act to State and Territory (:O\!-"",.
Wr.-\UII
"laws rclating to procedurc, evidcnce, and thc compctcncy of
witnesses" compels the conclusion thnt s 79 requires Stnte and ~ld-jughJ

Territory lnws to be applied "[on] the hypothesis that federnl courts do

not necessarily lic outside thcir field of application" (545). On that
hypothesis, s 56 of the ACT Limitation Act is capable of bcing
"picked up" by s 79. It thus applies in these proceedings and. when
applied, it renders the NT Limitation Act applicable to the plaintiffs'
claims.
It is neccssary to mcntion that, In certllin circumstances. S 44 of the
NT Limitation Act confers power to extend the limitntion periods fixed
by that Act. No argument was directed to the question whether s 44
applies to these cases and. if so, whether thc powcr to extent] time
should be exercised in favour of the plnintiffs. It is. thus. inappropriate
to consider whether the plaintiffs' actions are statute-barred.
Answers to Questions
In each mailer. the questions reserved hy the Chief Justice should he
answered as follows:
Q 1 The legislntive po\.\'er conferred by s 122 of the Constitution is so
restricted by implied freedoms of movement and assoClatiun as tu
Invalidatc S 6( 1), (so far as it conferred power 10 take people into
custody). nnd ss 16 and 67(1)(c) of the Aboriginals Ordil1allCc
]918 (NT). It is also restricted hy s 116 of the Constitution.
although it is not possible to say at this stnge of the proceedings
whether the Ordinance was also invalid on that account.
Q 2 I'\o
Q 3 Nunc of the mailers are relevant.
Q 4 Does not arise.
Q 5 Does not nrise.
Q 6 Does not nrise.
Q 7 (a) Inappropriate to answer.
(b) Strictly docs not arise, but tbe Limitatioll Ac! l'::l!;] (NT) is
made applicahle to the plnintiffs' actions by operation of
ss 64 and 79 of the ludiciall' Act 1903.

McHUGH J. [om the reasons given by Dawson J: (1) the Aborixinafs

Ordinance Itjl8 (NT) (the Itjl~ Ordinance) was authorised by s 122
of the Constitution: (2) the actions of which the plaintiffs complain

(545J jolin NO/Jerl.HIII & Cli Ud \. Fng"",,, T","s!imners Fry Lrd (1Y13) 129 CLR 6_~
al 95. p.:r Mason J
142 HIGH COURT lI996-1997

HCnF A were not an exercise of judicial power by the Executive government

19%-1997
contrary 10 eh III of the Constitution; (3) the Constitution contains no
general guaranlce of duc proccss of law ur of legal equality before or
under the law; and (4) the P01.','Cf to Icgishlte under s 122 01 the
THE
Constitution is not restricted hy s 116 of the Constitution.
CO.""",,-
WFALTfl r would also reject the plaillliffs' claim that the 1911:! Ordinimee ,,"vas
invalid because it infnnged an Implied constitutional nght of freedom
of movement <Jnd association fur political, cultural and familial
purposes_ Nothing in s 122 of the Constitution gives any support for
this c1mm (546). Nor is there any implic.ation in the Constitution as <l
whole that supports the claim.
Because ss 7, 24, 64 and 128 and related sections of the
Constitution provide for a system of n:presentativ(; and responsihle
govnnml:nt and a procedure for amending the Constitution by
referendum, the Constitution necessarily implies that "the people
must be free from laws thal prevent them from communicating with
each other with respect to government and poJitic<JI matters (547). The
freedom arises from the constitutional mandate' "that the members of
the House of Representatives and the Senatc shall 11(; 'dirl:ctly choscn
hy the people' of the Commonwealth and the States, respect-
Ively" (548). It exists for the protection of ""the people of the
Commonwealth" in the case of the House of Representatives and for
"thc pcople of the State[sj" in respect of the Senate. As a matter of
construction. the constitutional implication cannot protect those who
arc not part of "thc pcoplc" in eithcr of thosc senscs.
The reasons that led to the drawing of the implication of freedom of
communication lead me to the conclusion that the Constitution also
necessarily llllphes thai "the people' must he free from laws that
prevent them from associating with other persons. and from travelling,
inside and outside Australia for the purposes of the constitutionally
prescrihed system of govcrmnent and referendum procedure. The
implication of freedom from laws preventing association and travel
must extend, at the very least. to such matters as voting for. or
supporting or opposmg thc clcctiol1 oJ, candidates for membership of
the Scnalc and thl: House or Rcprescntatives, monitoflng the
performance of and petitioning federal Ministers and parliamentunans
and voting III referenda.
However. from the timc whcn thc 1918 Ordinam;e was enacted until
it was repealed m 1957 (549). the residents of the Northern Territory
had no pan to play in the constitutionally prcscrihcd system of

{5461 flusiralillll C"f,ital reln/si"" PI.' Ltd " Ti,e CW>iIllI",we"lth (199='.) 177 CLR j O(i
at 2-16.
(.'i47) L,,,,ge \. Aus/wli,m BmaduHllIl1' Cor/II'ral/oli (I'N7:> 1~') eLI< .'i:?11 al .'i('(J-Sfi='..
(54~) uUI):e (1997) I ~9 CU, :ill! m :i59
(S49j Tile 191R Ordinance ,va, rq,eakd hy the R-d/im' OrJi",,,,ct I'J5J (~TJ "illl
ciTed from n \lay 1957
190 CLR II OF AUSTRALIA 143

government or in the procedure for amending the Constitution. The II Co" A

19%-19')7
right of the Territories to elect senators or memhers of the House of
Representatives was, as it is tod[ly, dependent on federal legislation,
not constitutional entitlement. The Northern Territory had no
THE
constitutional right Juring the period 1918 to 1957 to elect or vote for COMMON-
a memher of the Senate or the House of Representatives. Wb\lTH

It was not until 1922 that the Northern Territory had any
.'I(Hugh J
representation in the House of Representatives (550). Moreover, its
member was not given a vote on any question arising in that House. In
1936, the member \vas given the right 10 vote on any motion for the
disallowance of any On.linam:c of the Northern Territory anu on any
amendment of such motion (551). [n 1959, this right was extended to
any question "on or in connection with" a proposed law that was
determined to relate solely 10 the Northern Territory (552). It was not
until 1968 that the member for the Northern Territory was given the
same "powers, immunities and privileges" as those enjoyed by
memhers representing State Electoral Divisions (553). Furthermore,
the Northern Territory had no Senate representation until the
enactment of the Sellate (Representation oI Territories) Act 1973
(Cth), which came into force on 7 August 1974. Indeed, it was nOI
until 1977 that the residents of the Northern Territory finally received
constitution'll as well as democralic recognition by being given the
right to vote in a referendum 10 amend the Constitution (554). By then
the 1911:.: Ordin'lnce had long been repealed.
As the foregoing account shows. at no relevant time were the
residenls of the Northern Territory part of the constitutionally
prescrihed system of government. Nor. as the second paragraph of s 24
and ss 25 and 26 of the Constitution and s 15 of the Commo/lwealth
Electoral Act 1918 (Oh) made plain, were the residents of the
Territortes "people of the Common\vealLh" for the purpose of
s 24 (555). Moreover, at no time during the life of the 191 I:.: Ordinance
did an "Aboriginal native of Australia", who \\'as resident in the
Northern Territory and subject to the 191 I:.: Ordinance, have any fight
to vote in federal elections (556).
For these reasons. nothing in the Constitution implied that the

(550) !'ior[/lel'lllel'l'ilOn' Repre.<eIHal;(1I! AI'! 1922 (Ohl, S 5

(~.'i I) ,"-lortlwl'll ferl'ilorY Rel'l'e.<erllal;OI! AI'! 19J6 (Oil). ,2
(552) NOl'lhern TerriWI)' Rewe5t'rIl<lliilll Ad 1959 (Cth)." J.
(.'i5J) Nor/han Terrilll'" Represl'nuuion Ad 196H (Cth)., 4.
(554) Con.Him/ioll AllermiOIl (Refel'endwlIsJ 1'177.
1.'i5.'i) d Atlol'll"."-GeJleml (NSWi. Lx rel.'l1cKel!tn." The COlllm",,,,'elJ!lh (19771 1.19
CLR 527
(556) S"c Common\,-mlrlr Flel'lm'o! Ac/ 1<)1~, 5 39(5), a" runcmkJ by Co"",wlJ),-e"llh
fJeCl(lJ'<llllel 1925 (Cth). ' 2; C"mlluJ/lwe"llh Ue("/or,,1 ACI 1949 (Ohl. s J:
Comllumwe"l/h EI~("umd Au 19(il (011) 5 4: COll1mo"",eallh Elaloml AC:l 1962
(Oh). s 2. see also North~m T~rritmy Etechlr.ll t<egubtions (SR :"<0 1541192:2).
reg 22. as arncnllcd by Nonhern rerrilOry Electoral RcgulUlions (SR j\;() (1/1949).
reg 3.
144 HIGH COURT [1996-1997

He OF '" plaintiffs had any freedom or immunity from laws affecting their
19%-1997
common law rights of association or travel during the life of the 191X
KRl'GER On..Iinance.
" Accordmgly, I reject the plaintiffs' claim that the 191 8 Ordinance is
T". invalid because it burdened their constitutionally protected freedom of
C[).\1M()~
""'lTli association and travel.
In their statement of claim, the plaintiffs also claim that S5 6, 7 and
Gumm,'wJ
16 of the 1918 Ordinance and s 67, in so far as it conferred power to
make or amend relevant regulations, were invalid because those
sections authorised acLs which were contrary to an Implied
constitutional right to freedom or immunity from any law or executive
act that constituted or authorised the crime against humanity of
genocidl:. The plaintiffs claim that the United Nations' Convention on
the Prevention and Punishment of the Crime of Genocide (557) (the
Genocide Convention) gave effect to a fundamental rule of mtlT-
national law and that s 122 of the Constitution docs not authorise a
law thJt would breach such a rule.
However, it is unnecessary to deal with the cotlstitutionJl point. The
191X OnJinance did not authorise genocide. Article II of the Genocide
Convention relevantly defines genocide to mean certain Jcts
'"committed with intent to destroy, in whole or in pan, J natiorwl.
ethmcal, racial or religious group, as such". The acts include
'"[i]mposing measures intendl:d to prevent hirths within the group"
and "[fJorcibly transfcrring children of the group to another group".
There IS, however. nothing in the 191 g Ordinance that could possihly
justify a construction of its pf(wlsions that would authorise the doing
of acts "with intent to destroy, in whole or in part" the Aboriginal
race.
Accordingly, I would also reject the plaintiffs' claim based on the
Genocide Convention.
The questions In the actions should be answered in the manner
indicated in the judgment of Dawson 1.

GUMr>10W 1. By ordcr of thc Chid Justiec, certain questions were

reserved fur thl: consideration of a Full Court. The questions arise in
t\lm actions against the Commonwcalth which arc pending in this
Court. In each action the pleadings have closed. By its defence in each
action. the CommOllwealth does not admit the allegations of fact
pleaded by thc plaintiffs.
By their statements of claim, thc ph.llntiJTs allege theIr removal from
mother and family whilst infants and their suhsequent detention (and
in the case of the sixth plaintiff in Kruger v The Commonwealth, the

(557) t;r-; G<:n Ass, Oft Rec, ~rd Sess, Re,olmion 174 (AlI~Ol (]V4H). Th<: Convention
w,,", r~liried by ,"'USlr~lia on 8 July 1949 and enl",,,d into fore'" on 1~ J~nuaf}'
1951 No kgi,Jation ~nads lh" Convention ""' pan of Australian law.
190CLR IJ OF AUSTRALIA 145

removal and detention of her infant child). These acts are said to have HeOFA
hcen committed against them in the Northern Territory (the Territory)
and to have been tortious and in breach of what arc asserted to he
individual constitutional rights. The tort upon which the plaintiffs rely
-
19961997

KRUGER
,
THE
is identified in the statements of claim as wrongful imprisonment and
deprivation of liberty. There is no pleading of any other action 111 tort.
CO""",,
,",'Menl
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 hy the
Commonweahh in answer to the tortious acts complained of is the
Aboriginals Ordinance 1911S (NT) (the 1918 Ordlllanee). The 1918
Ordinance was amended on numerous occasions (558) and repealed by
s 4 of the Welfare Ordinance 1953 (NT) (the 1953 Ordinance).
By the Northem Taritory (Administration) Act 1910 (Cth) (the
Admim.stration Act), the Parliament created a regime for the
administnltion by the Commonwealth of the Terrilory. In particular,
s 13(1) of the Administration Act provided that, until the Parliament
made other proVIsion for thc government of the Territory. the
Governor-General might make Ordinances having the force of law in
the Territory (559). The designation of the Governor-General meant
the Governor-General acting with the advice of thc Pcdcral Executive
Council (Acts Interpretation Act 1901 (Oh), s 17(f). It was pursuant
to this authority that the 191 IS Ordinancc was made hy the Governor-
General on 12 June Ell IS.
Section 07 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 plaintills seck 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 10 confer power to make or
amem] certain regulations of whieh they complain, of s 67 thereof.
They also seck a declaration of the invalidity of s 13(1) of the

(SSH) AINm!"",,/., Ordi"ance I'in (NT). Aho'igl""ls Ordi'lli/ice 1924 (NT). .4.b"ri!!inall
()rdim",ce (N" 2) 1924 (NT), Ahorit.:IJla!.' Ordinance tnS (NT), Abo,.,t.:i""I"
Ordinance 1927 (NT), Aborigimd.' Ordi""''''e 1928 ('H), A[wnt.:i'luls Ordinance
(No 2) tnH (NT). Ab"rit.:i"al, Ordinance 1930 (NT), "'bonginals Ordinance
1\,133 (NT), Abor'!,'nal.\ Ordinance 1936 (l':T). Aborit.:'llals Ordinance t937 (NT).
Ab"ri!,',,,,!__ Ord'",,,,,'~ ilVo 2) 1937 (NT), Aborit.:i"als ()rJirwlJt'e 19-'9 (NT),
Abong"wl., Ord''''l!lce 1941 (NT), Abont.:ill"I,' Ordinallce 1943 (NT). AI"'ri!!ilJa!'
Or"'",,,,,e 1'i47 (NT!, Almrigillills Ordinallce J9S3 (NT). A!iongi,,,,!s Onli~ance
(.'-ili 2j 1<).~3 (NT)
('iVI) The Adlnini,lfntion Ad wa, amended ,jgnifl<~ntly hy the iV"nlr"m Tari/or)'
(Admini,'lm/illlJj h'l 1947 (Cth). This eswblished a Lcgislative Council for Ihe
Territo!), and ~nd(Jwed il with Ihe power 10 make Ordjna"n~e, for Ihe peae~. order
and good gllVemmenl of lhe TCfI'ilory. Asscnl of thc Administralor was requiITd
and th~ G(Jvemor-Geneml h"d the powcr of disallowancc. Suh,e'luent
al]1t'ndmenl,!O the 19111 Ordinance and lhc 1953 On.!inam:e wert' made under thi,
ncw'y'lerll.
146 HIGH COURT [19%-1997

HC"FA Aclministrntion Act. to the extent that it purported to authorisc thosc

1996-1997
~
provisions of the 1918 Ordinance.
KRl.'(;ER Section 18 of the Judiciary Act 1903 (Cthl states that a memher of
, the Court sitting alone may "reserve any question for the consider-
TOIL
ation of a Full Court". Ordcr 35, r 2 of the High Court Rules provides
C()."MO~
WEALTH that. if it <lppcars to the Court or to a Justicc that in a proceedmg there
is a 4uestioll of law which it would ho: 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 l.1w to be
rescrved for the opinion of the Full Court. The Chid Justice n::scrved
the present questions cxpressly on the footing Ihat the terms thereof do
not call for the ascertainment of any facts, proof of which depends on
evidence (560). Accordingly. in the nbsence of any further ~greemcnt
hetween hoth sides to the litigation, it IS Impermissible for either side
to rely on assertions of fact or to invitc the Full Court to make or to
proeced on assumptions or inferences of fact (561).
The first two of the questions reserved are in the follO\ving
tcrms (5ti2):
"l. Is the legislative power conl"crrcd hy section 122 of the
Conslitution or the power to enact the Ordinances and regulations
n::krn::d to in paragraphs 7-12 inc1usl\'e of the Amended Statement
of Claim so restricted by any and which of the rights, guarantl::cs.
immunities, freedoms, or provisions referred to in p~ragra[1h 29 of
the Amended Statement of Claim as to invalidate the Acts.
Ordinances and regulations rdcITed to m paragraphs A, B, C and [)
of the claim to the extent pleaded in those paragraphs?
2. Does the Constitution contain any right. guarantcc, Immunity.
freedom or provision as referred to in paragraph 29 of thl.:: Aml.::ndcd
Statement of Claim, a brcJl:h of which hy -
(a) an officer of the Common\-\'e~lth: or
(h) a person acting for and on behalf of the Commonwealth,
gives risc to a fight of ,Ktion (tlistinet from a right of action in tort
or fur hrl::Hch of contfal:l) agalllst the Commonwealth sounding in
damages '!"
The plaintiffs seek an affinnative anSWl::r to qUl.::stion 2 by urging the
existence in Australia of what in the United States is an action for
damages arising from violation of constitutional rights hy employees
of the federal government. The United States doctrine has heen
developed sincc 1971 and derives from Birens r Six UnknowlI Named
Axents of Fedeml Bureau of ,,",,'uremirs (563). Bivens has received

(5MJl Kruxer \' The C"nrmmmeallil (t~()51 W ALJI{ 885 'II gS9
(5611 Sec A co 1111.\'</('1) (1~l(4) 156 CLR 5-'2 at )R4.
(56ll Rcproduc~d h~r~ ar~ the question" rcscrvcd in Kru!!rr \' T"~ C""J1lI!!!",",'allil The
<juc,tions in liro\" \' flle Cummol1llw'!lh arc' not n,atl'rially difkrent
(.~63J I(971)4U3 L:,',; -'88,
190 CLR 1] or AUSTRALIA 147

some favourahle attention in New Zealand (504). However, current II C Of A

1~9hl~~7
authority in this Court suggests there is no such doctrine in Australia
in respect of executive action in excess of constitutional authority or in
contravcntion of a constitutional prohibition beyond liability under the
THE
common law for lortious or other wrongful acts (565). On the other
hand, s 84 of the Constitution directly creates an obligation in the
("""",,-
WMlTIl
Commonwealth enforceable in this Court to pay certain pensions and
Gummow J
retiring allowances to certain State puhlic servants transferred to and
retained hy the Commonwealth (566).
The reasoning in the Australian authorities has not proceeded on the
footing that, hecause a constitutional guarantee operates to impose a
restraint upon legislative power (as does s 51 (xxxi (567) or to confer
an immunity upon the individual in respect of certain activity (as does
s 117) (568), it foljows that the guarantee confers a "right'" which
must have a remedy in the form of substantive rehcf upon a personal
cause of action (569). Such a conclusion docs not necessarily follow
fro111 the premise.
Moreover, Bhw/5 has attracted much unfavourable comment in the
l;nited States, including the statement that the Bivens doctrine IS "so
devoid of constitutional legitimacy and so hamlful 111 its
conscqucnecs that the Supreme Court itself should consider
ovcrruling Bivens (570). The decision is only to be understood against
the limited waiver of the tort immunity of the United Slatl:S hy thl:
Fedeml Turls Claims Act 1946 (57l), and by the limitation of the Civil
Rights Act 1871 (572) to deprivation of federal rights by State or local

(56,,) SllIIps"'l ,. Al/omnGeneral (;\ILJ (n"il:"I1I" Co,e) [199--1] 3 :---:ZLR 667 ut 702:
dul70'i
(5651 .fm"".' v The Comm"rl\\ca!lh (t939) 6~ CLR 339 Jt 3G9-37CJ: AhCIiIll,'ck I' Tlte
Commoml't.'"lt" (19471 75 CLR I JI 19: l,'e!II'I!ialoo !'r\, Lid l' lile C"IlIlIIorn,'mltli
(1'l5~) H5 CI.R 545 al 567-568: iVouhem Tantor\' v Mel/gel (IL)')5) 185 CLR 307
at 350-353. 37~-3n. tn ~~nain ~ir~uIll'tJn~~, rn~rnb~r 'lal~' Illay b~ tiJbk 10
provide reparation t()r d::unJgc su,tain~(t by individuuh by r~a>on of breach by
member statcs of Europcan Union b,,': '''~ Thne Ri\'elS Olsn'ici Cni!W/!1' Balik
01 EIlX/""J fi'io 3 J [19'l61 3 A It ER 558 at 622-625.
(566) Sec Flinl!' Th" C""''''''''H'e''!th (1932) --17 CLR 274: M('[)mwld r I-I"'o,-ia 11')371
58 CLR 146
(5671 Balik o{}"SIY \' Til, C()/III>wm\'e"llh {194S) 76 r:t.R t ul 3.:1<)-35()
(5681 Sired r Quem,lau" Bar A""",itllio!l (1989) 168 CLl{ <Hjl at ,,85-486. 502503,
541 See also Cmdifle I' The ('ommolHH'allh (!<)L)<f) t82 eLl{ 272 Jt 326-327 II
ha<; yet to h~ '~lIled whdha:; tl7 imposes a restl'Jint upon federal Icgi,>lnlive ()I'
executive nction, und whdhcr Stute ~dion indude, Ihe enforcement of common
bw I'ules in a I'riv~te actioo: cf iVrl<' r"d: Fillies C" j.' SU/!i\WI 11964) -'76 LS 254
JI 265: Tribe, AJlleri~a" ('()n'lif!ll;,m(lll~"", 2nd ~ll (1988). ~ 18-6
(569) cf Am~r. '"Of Sov,'reignty and r:cdcorali,,,," Yale I.m>, .Journal vol 9(; 119~7)
1425. al pp I.:IS5- J 486,
(57(J) Davis and Pierc~. ,\dillilJislrali\'t.' I""", Tre"lis~, :lrd ~d (19'i4). vol 3, ~19.5,
Prcviuu\ ~riljc'i,ms by Professor Davis appear [hmughnut his work. COJlS/illlli(ilJal
IorlS (1984). '""1' I'P ISI-lI()
{.~71) 28 I.'SC ** 1346.2671-2680.
{'in) 42 L'se *198-'.
14R HIGH COURT [1996-19'::17

H COl' ,\ olTicials acting under colour of State law. The Supreme Court recently
1996199i
declared that (573):
"lWJe implied a cause of action against federal officials in Bil'fm
T';F In part becuuse a direct action agalnsl the Government W8,S not
("""nN- availahle." (Emphasls in originaL)
WlAUH
The treatment hy the Judiciary Act of the tort liahility of the
(iemm<lw J Commonwealth has heen quitl: different to that of the (]nllcu Slales.
So also is the relationship between the common law and the federal
Constitution (574). Moreover, the plaintiffs claim that their Rivens
actions against the Commonwealth would escape an),' time limitation
period woulJ noL hold In the United States. It has hl:cn held Ihm
Bivens cremes no such class of perpetual kdcralliabilities (575).
The plaintiffs thus face fomlidahk obstacks in propounding an
arrirmativc answer 10 question 2.
The questions are SD drawn that question 3 only arises if there is an
affirmative anS\\'Cf to question I or question 2, and questions 4, 5 and
6 only arise if there is an affillTlative answer 10 question 2. The
remaining question. question 7, is as follows:
"7. On the facts pleaded in paragraphs 1-6 of the Amended
Swtement of Claim -
(a) are the Plaintiffs' claims (or any of them) for damages for
wrongful imprisonment and deprivation of liberty stalute
harred'?
(h) hy what statute'!"
The focus of the attaek by the plaintiffs is on the validity of ss 6. 7
and 16 (,f the 1~18 Ordinance. As the argument developed In oral
submissions, it hecame apparent that lilth:, ii' any. Hnportancc atlachcll
to any oj the regulations made under the power conferred hy s 67
thereof. If the allack on validity fails then it would follow thatlhe aus
complained of were not wrongful. The consequence then would be Ihat
question 1 would be answered in the negative and that. in due course.
each action would he dismissed. The remaining questions either would
not arise or he moot and so not permit of an answer hy this
Court (57fi).

(573) Fnla,,1 Del'lI.\'il Illsurance Corporatio" ,,/.hra (19'1.t) 127 Law Etl 2d 30S at
323, This case hold, lhal Bi,'m.' nClions run against intlividuals not fetler~l
~gellcie". In lhe present nctions the plainliff.' sue th~ Commonweallh ilself. not
any ofticers of (he Commonwealth.
(57.t) Lange \' A'JS/mli,,,, Bro"dea.<lilli! C"rporali"" (1997) I S'1 CLR 520 at 5f.2-56.t.
(575) Le(lIlhard \' Un"ed Sl<lle" (19RO) 63-' F 2d 5'19 ~(612-613; McSllrel.l r HUlehi,,,,,,
(l9S7J 82:1 F 2tl tom. SeliC/' l' Unf-)C/' 11995) 881 F Supp 32-' nt 327,
(5761 Nonl> (;1IIwl"")<I Ab"rigilliil C"'powli"" .. QueelislaHd (1996:1 185 CLl<. 595
m612-6B. 642-f..t3.
190 CLR 1] OF AUSTRALIA 149

The 1918 Ordinance He OF A

19%-1997
Provision was made hy s 4(1) of the 1918 Ordinance for the
appointment by the AdmimstraLOr of an officer styled' 'Chief Protector
of Aboriginals" (the Chief Protector) to have, unuer the Administrator, TilE
responsibility for the administration and execution of the Ordi- CO."."<iN-
nance (577). The Administrator also was empowered by s 4(2) to WE._LTH

appoint "Protectors of Aboriginals" 10 have and exercise (54(3) such

powers and duties as were prescrihed. The Chief Protector thus played
the central role In the operation of the regime established by the 1918
Ordinance, of which 55 6. 7 and J 6 formed pari. Section 5( I) specified
certain duties of the Chief Protector as follows:
"(a) to apportion, distribute, and <lpply, as seems most fit, under the
direction of lhe Administrator, the moneys at his disposal for the
purpose of c'lrrying 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 inliml
Aboriginals;
(d) to provide, when possible, for the custody, maintenance, and
education of the children of Abor.igin'lls;
(e) to manage and n.:gulatc the usc of all rcscrvcs for Aboriginals;
and
(f) to exercise a general supervision and care over all matters
affecting the welfare of thc Ahoriginals, 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-custe" (tem1s
defined in s 3) (578). Section 6 provided:
"(1) The Chief Protector shall he entitled at any time to
undertake the care. custody, or control of any Aboriginal or half-
caste, if. III 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 Ahoriginal or half-caste is or is
supposed to he, and may lake him into his custody.
(2) Any person on whose premises any Ahoriginal or half-caste
is, shall, on demand by the Chief Protector, or hy anyone acting on
beh:!lf of the Chief Protector on production of his authorily,

(577) The office of Chief Protector of At>orig:in~ls was replan'd. by lhe ,\hori!:in"h
Ordinance t~H\J Il\TJ. Ily thaI of lhe Director of N~tive Affairs. j\'othing ror
presenl purposes turns upon this change
(578j These defmilinns were ~m~mktJ 011 5everal oem,inn" hqly Ill' :; J of lhe
Ahoriginals Ordimm,e Ii"" 2) 1953 {l\T), which omilled any definilions of "halr-
taSlc" "ml ",bslinlled J new definilion or "Allori1!inar'
150 HIGH COURT r19%-1997
IlCoFA facilltate hy all reasonahle means in his power the taking into
19%-19n
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
THE
COM.\10N-
employment or not.' ,
WEALTH
Section 16 conferred upon the Chief Protector powers of removal 10
any reserve declared by the Administrator to be a reserve for
Ahoriginals for thc purposes of the 1918 Ordinance and powers of
removal to any '"Aboriginal institution". That tern} was defined in s 3
as mcamng:
"'any mission station, reformatory, orphanage, school, home or other
institution for the hcnefit, care or protection of thc Ahoriginal or
half-caste mhahitants uf the Northern Territory, declared by the
Administrator to be an Aboriginal institution for the purposes of this
Ordmance. ,
These powers did not (s 16(3)) apply to those who were la\vfully
employed pursuant to the provisions of Pt IV (ss 22-34). \vho were
holders of a pennit to be absent fmm the reserve or Ahoriginal
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 or the Chid 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 Ahoriginal institution to another reserve or Aboriginal
mstitution, and to he kept therein.
(2) Any Aboriginal or half-caste who refuses to be removed or
kept within the boundaries of any reserve or Ahoriginal 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. \-\'ith an exception not presently matcriaL s 7 created thL:
Chief Protector the legal guardian of every Aboriginal and half-castL:
child. Section 7 relevantly provided:
"(1) Thc Chief Protector shall be the kgal 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 dislm;1. be the local guardian
190CLR 11 OF AUSTRALIA 151

of every such child within his district, and as such shall have and He or A

may exercise such powers and duties as are prescrihed.'"

Section 7 of the I'Hg Ordinance was not reproduced in the 1953
Ordinance. This provided (s 14) for a declaration by the AdministnltOf
-
1996-1997

,
KRL!CiER

rHl
of certain persons to he a wanl if hy rcason of enumerated matters that CmN()N-
WEALTH
person stood "in need of such special care or assistance as is provided
for by this Ordinance" ,mu there was (S5 30-37) a system of judicial Gumm"wJ
review in respect of declarations made under s 14.
The wardship system established hy the 1953 Ordinance was
considered by this Court in Namatjira v Raabe (579). The Court held
that it gave 10 Aboriginal people "a status substantially the same as
lhat which they occupied under the [1918J Ordinance" and
conduded (580);
"To sum the matter up. the legislation takes the place of prior
legislation under which a large body of Ahoriginals had a particular
status analogous to that which is given herc: it confers a pov..er to
give a similar status to persons who stand in need of special care
and assistance; the power is almost confined III its application to
Ahorigmals, having regard to the ambit of the exclusions; they are
persons who might he regarded as heing as a class in such need and
on the grounds enumerated: the power IS reposed III the
Admimstrator of the Territory; a person declared a ward has a right
of appeal should he choose to exercise it and he in a position to
exercise it; and the status given is protective in its nature." (5HI)
The exercise of the powers of the Chief Protector under ss 6 and 16
of the 1918 Ordinance was suhject to judicial review. \vhether by
prerogative writ or in a suit for an injunction. Speaking or s 16,
Fullagar J declamd in Wafers v The Commomvealth (582):
"TOhe courts must be alert to see that, if that which is not expected
docs happen and he does mistake or abuse his poweL the mistake or
ahuse does not go either undetected or unredressed."

(579) (1959) 100 CLR 604 at 669.

(580) Namutjim "Raabe (1959) 100 CLR 6M at 669-670.
(581) The juJgrnent of this Court was upon a refusal of leave to appeal from a Jecision
01" KriewalJt J reported [t958J NTJ (iJ2. In R r Siilwer l'ilitltliritjiltliri 11965J
NTJ 776, BriJge J disl:hargeJ arJ order ni~i for habeas corpus direCling delivery of
three AbOliginal children to their natural parents. from the l:ustody of the
respondents as foster parents, His Honour was exercising the t'4.uity jurisdiction of
the Northem Territory of the Supreme Court in rt'spect of inl"anl cu~toJy and
considered (R v Siil'ester l'ilinrapiljimtri [19li5j NTJ 776 at 785-787) the
accommodation in that jurisdiction of special considerations rd~ting to the
Aboriginal culture of the panics.
(582) 11951} 82 CLR 188 at 194,
152 HIGH COURT [1996-1997

H Co, A lmplicutirms

-
19%-1997

KRnlFR
In essence, the plaintiffs submit that the power conferred by s 13( 1)
or the Administration Act did not authorise thc making of the 1918
Ordinance in so far as it contained the sections T have set out above.
THE
Cm'.'10N- This, as I understand the submiSSIOns, was because (ij the power
'!>'EALTH conferred by this provision upon the Executive to make Ordinances
having the force of law could not exceed the constitutional competence
Gun"''''''' J
of the Parliament itself directly so to legislate under s 122 of the
Constitution and (iij a law made by the Parliament in terms of ss 6, 7
and 16 of the 191R Ordinance would have been invalid as nceeJing
one or other of various restraints upon its legislative power \.vhich
WCfe, as they still are, imposed as a matter of necessary implic<ltion
from the text or the Constitution.
Before turning to consider these implied restraints, it is convenient
to refer to certain remarks in McGinry l' Weslern Australia (5R3j.
Brennan CJ said:
"Implications are not deviscd by the Judiciary: they exist in the
text and structure of the Constitution and arc revealed or uncovered
by juJicial exegesIs (51:;4). No implication can be drawn from the
Constitution which is not based on the actual temlS or the
Constitution, or on its structure (51:;5), However, as an impliClltion
will be applied in a particular case to a spcClfic factual situmion, it
may be cxprcsseJ In terms relevant to that situation (51:;6). Although
the Court was divided in Australian Capital Televisiull Ply Ltd \.
The Cmlllllollwealth there was nothing in any Judgment to cast
doubt on the approach then takcn by Mason CJ (587): "It may not bc
right to say that no implication \.vill be made unless it is necessary.
In cases where the imphcation is sought to be denved from the
actual tcnTIS of the Constitution it may bc 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 th'll the tenn sought to be
implied must be logically or practically necessary for the
preservation of the integrity of that structure.' "

(583) (1996) 186 CLR 140 at 168-169: ,ee also at 188, per Daw~on J:;ll ~.'O-2_E_ per
McHugh J: al 291 per Gummo\>! J,
(584) See Nali"nwiJe NeilS Pry Ltd v Wills (1992) 177 CLR 1 at 41-45 and Allslrali""
C0l'ilal Televisl"" Ply Ltd ~' The Comllli!lllly"iI/J (ACTV) (1992) 177 CLR 106
al 133-136 and the ca.les cited in lho;;l' passages,
(585) Amal;;/lnwted Socii'IY 4 Enliilleel'S I" Adelaide Slemmirip Co Ltd (InO) 28 CLR
129 aI 145. 155: Melb"urne C"'pow/ion '" The CO"lliwl/\leulrli (1947) 74 CLR 31
m 83:AClV(1992) 177 CLR 106 at 135, 209-210.
(586) ACTV(1992) 177CLR lIXiaI158-159.
(587) ACTV (1992) 177 CLR 106 at 135,
 190CLR 1] OF AUSTRALIA 153

Legal equality HC')fA

1996-1997
The plaintiffs contend that a law made hy the Parliament in terms of
the impugned provisions of the 191 R Ordinance would exceed the
restraint upon legislativc competence imposed by a doctrine of legal THE
equality. They referrcd to the affirmative answer given in Leeth v The C"".\10N
Commonwealth (588) by Deane and Toohey JJ to thc question whether WEALTH

thc Constitution, as a mallcr or necessary implication, adopts what

their Honours had idcntiried as a "general doctrine of legal equality"
which existcd as a "fundmnenlal and generally beneficial doctrine of
thc common law". The doctrinc was stated to have two distinct but
related aspects (589):
"The first is the subjection of all persons to the law: 'cvery man,
whatcver he his rank or condition, IS suhjcct to the ordinary law
and amenable 10 the jurisdiction of the ordinary trihunals' (590).
The second involves thc underlying or inherent theoretical equality
of all persons under the law and before the courts (591)."
As 10 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 othcr memher of the minority in Leeth.
appro:Jehed that case from a more particular standpoint. namely the
proposition that (592):
"lw]hen exercismg rrcderal] jurisdiction. State courts arc part of the
Auslralian Judicial system created by Ch III of the Constitution and,
in that sense and on Ihat account, they have :J role and eXlstencc
which transcends their status as courts of the States",
and the further proposition that (593):
"lilt 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
CUllilllOirwealth Prisoners Act 1967 (Cth) was upheld. was lIlconslslcnt
with any "general dOClnnc of legal equ:Jlity". Stale laws relating to
the fixing of non-parole periods differed, with the result that the
minimum term of imprisonment imposcd upon a person convicted of
an offence against the law or the Commonwealth might vury
slglllficantly according to the State in \vhich that person was tricU.

(5SS) (1992) 17.+CLR cl55 aI48'i-490,

(5S9) ru/Ii (19921 t74 eLR cl5.'i al 485
(5901 Dicey, fmnui,/Ctiorl /0 Ihe 5tudr (Ii t"~ I,IW ot lite Constitulion, 10th ~d (1'159),
p 19-'.
(:';91) S~~, eg, Holdswor1h, A Hi.>lory ot EnxlisIJ 1.(1\> (J'JJ8). YGI 10, P 049.
(592) I.celil (\9':.12) 174 eLR 455 at 498-499, S~e now Koble" Direuo,. III PlIl>lic
Pro'i'I'wio".> (NSW) (1990) 189 eLI{ 51 at 9')-100. 102-104. 111-115. 134-139.
(.'i9.1) I.u/Ii (19921174 CLk 455 al502
154 HIGH COURT [ 1996-1997

He OF A In then- joint Judgment, Mason CJ. Da~vson and McHugh ]]

I 'J%-I9Y7
said (594):
"Thcn: is no general requirement contaim:d in the Constitution
THE that Commonwealth Inws should have a uniform operation
CO".\10N- throughout the Commonwealth. There is, of course. the Implication
WEALTH
drawn from the federal structure erected hy the Constitution that
prevents the Commonwealth from legislating in a way which
discriminates against the States by imposing special burdens or
disilbilities upon them or in a way which curtails their capacity to
c:o:.cn:isc lor themselves their constitutional functions (595)."
Their Honours went on to refer to specific provisions such as 5S 51(ii).
92, 99 amI 117 which prohihit discnffimation or preference of onc kind
or another hut arc confined in their uperation.
Thirdly, before federation the eummon law as it applied in the
Australian colonies had been, as the common law in Australia is nuw,
in continuing dcvelopmcnt hy 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. TIluS the doctrines of common employment and of
contributory negligence propounded m Enghsh mm:tecnth n::ntury
decisIOns (596) and the state of the law before the Married Women's
Properly ACT IgS2 (UK) invited and received legislative intervention.
Other instanccs 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 thosc institutions (597), In addition,
cOn!cmporary development of the common law in Australia must
conform to the Constitution and thc common law and the Constitution
cannot be at odds (598). But in the abscnce of an anchor in the
cunstitutional text it is a large step 10 extract from the whole corpus of
thc common la...' a . 'general doctrine of legal equality" and treat it as
constitutionally entrenched.
t'inally. caution is required in dealing with what was said hy
mnetcenth century English legal wnters as to equality of persons under
or hefore the law. ]n so far as this referred to statute abrogating or
amcnding the common Jawor creating novel rights and liabilities. it
was said in the context of a f1uiJ rather than a fixed constitution. Thus

(S94) Lee/Ii (l')<)2i 174 CLR 4~5 at 467

(S')Si S~~ QUNm!alld Eleclri,-ilv (""lIIlIIi,si",! " The ComilJolIH'eu!liI (J98~) JSY eLR
192
(596) ."';olahly Prieslle." \' FOlder (1837) 3 1>1 & \V I [ISO ER 1030] (wmmon
employmcnt) ~nd 811l1n,1ield " Forre,<lu (180Y) tl East 60 1103 ER 926J
(contribulor) n"glig~ncc)
(S')7) Clie,lI!p v The Queen (lY93j 177 CLR 541 '-'I _'i60-~61
(598) LO"K" v AustraliaJl H,.,!<"ka.\liIlK Corporwiol! (I ')'J7i 189 CLit 520
190 CLR IJ OF AUSTRALIA 155
allowance had to be mQde for what was then perceived as the basal 11 C Or A
19%_1997
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
THE
Great Britain (599). COM.I1""
It also is significant that certain provisions of s 51 of the WEALDJ

Constitution itself support legislation which operates to the detriment

of particular groups of persons, as well as bcncficiallegislatioll. This is
true of par (xix) (aliens) and also of par (xxvi) (600), at least in its
original fonn 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 (601)."
Moreover, s 117 sanctions different treatment for different classes of
people, namely those who arc suhjects of the Queen and those who are
not (602). The text of the Constitution thus serves to emphasise the
point that, at the time of federation, concern with frecdom 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 administralion of those laws,
whether by the executive or Judicial hranch of goveroment,
Persons who were, within the mcaning of the 1918 Ordinance,
Aboriginals and half-castes wen~ subjected in the Territory 10 the most
aeute interference with family relationships and freedom of movement
and with thc displacement of the ordinary mcidents of guardianship in
respect of infant children. These laws did not operate at all upon other
persons. Nevertheless, the legislative power from whieh the authority
to make these laws was derived \vas not limitcd by any doctrine of
legal equality, implied as a mailer of logical or practical necessity for
the preservation of the integrity of the structure established by the
Constitution.

(599) Provisions such JS s I of the Au.llrati" An 1986 (Imp), s :2 of the 1:.'1;"'l'eol/

C"mnj/j"illcs A('I J972 (UK) Jlld, I of the Europe"" COmmuullies (Amendment)
ACI J993 (UK) CJJI into question {he continuation or this ~s CUlTenl reality: ,ee
Wintel1on, "The British Grulldnorm: Parliamentary Supn:mJcy Re-Examined'-
Law Quarterly Review, vol Y2 (1976) 591, Jt pp 604-608: Zines, COIl.'itiWllmwl
Choli);e ill the Cmlll/w"wealth (199J), Ch 3: Jnd R l' Tr<Uls{'ort 5aretary; Ex p
Fat'llJrlallleLtd!No2]lI99IJ I AC603,
or
(600) Quick and GJffJll, Tlte Aflnotaled C"n.>lilll/IOII the AII,"raliilli CommmH,-ealth,
(190 I ) at pp 622,623.
(601) The wonJs "other thJfl the Ahoriginal ra~e in Jny State" were omiued after
carriJge of J referendum by 5 52 of the COfwilull"" IIIterat;,m rAborixinals! 1967
(Cth),
(602) See al,o s 25 of the Ccm\CtilUtion,
156 HIGH COURT [ 1996-1997

1-1 C OF /\ Other implications

I 996 I'm
The plaintiffs also assert that the legislative power from which was
derived the authority to make the impugned provisions of the
TilE
Ordmance \vas n::striclcd by other constitutional implications. These
C"-""n,,. were identified as a "constitutional nght to, and immunity from
\<'EAUH legislative: and CXl:cutivc 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 proteeted. alheit they arc not stated in the
text. and what ffil:lhods ure to be employed in discovering such
"rights", Recognition is required of the limits imposed by the
constitutional text, the imporlance of the democratic process and the
wisdom of judicial restraint (603).
In Pioneer Express Pry Ltd v Hotchkiss (604), Dixon CJ identified
as n::sting upon a solid foundation the chum 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
1110st complete immunity from State interference with all that is
involved in [the Territory's] existence as the centre of national
governmenf', and continued that that Implication certainly meant "an
abscrin:: of Slate legislative power to forbid, restrain or impede acccss
to it" (605). /\.-lore recent decisions have emphasised the central
importance to the efficacious working of the system of responsible and
representative governIm:nt established by the Constitution for the
Commonwealth of commumcation of mfonnation respecting, and
discussion of, matters of political interest (606).
In AC7V (607), it was said that the '"notion of a free society
governed in accordance with the principles of representative parlia-
mentary democracy may entail freedom of movement [and] freedom of
association". However, with the delivery. after argument in the
present case, of judgment in McGillt} v Westem Australia (608) and
Lange v Ausralian Hroadcasting Corporation (609), it has hecomc
apparent that ACTV and the decisions in Nationwide News Pry Ltd v

(603) Crump, "Huw Do The Courts Reali." Di,~ov"r Lin"num"ralcd Fundamental

Righb" Cataloguing The ~klhods of Judicial Alch,'my'. Han'urd JOUr/wi ,,{ t.I1\1'
"",I Public /'olit,y, vol 19 (t')lj6) 795, Jt pp 837-83~
(604) (1<)5:5) 101 CLR 536;115511.
160S) Sc~ also R \' Smilhery. Fx parle BefJ.\an (1912) t6 CLR '19 at IO~-I09. 109-110:
Tlieopliwwl,IS \' Herold & Weekly Fillies Ud(t994) liQ CLR 104 at t66. 169
(606) NillI"""idp''\!nn (1<)92) 177 CLR I. Aen'( t992) 177 CLR t06.
1607) (1992) 177 CLR 100 at 212.
1608) Il'}%) 186 eLR 140,
(609) (1'J(J7l1~9 CLI{ 520,
190 CLR 1] OF AUSTRAUA 157

Wills (610), Theophanous v Herald & Weekly Times Ltd (fill), and He OF A
19%-1997
Stephens \' West Australian Newspapers Ltd (612) are not authority for
any proposition of this width. KRUGER
In Cunliffe v The Commonwealth (613), Brennan 1, with reference to
TilE
the decision of the United States Supreme Court in Crandall v CO.'1"ON-
Nevada (614), said it was unnecessary on the instant occasion to WEALTH

detennine whether the Constitution implies a nght of access to

government or to the repository of statutory power. However, if such
an implication did exist, then s I fi or the 191 X Ordinance was
susceptible of construction according full operation to the relevant
restraint upon legislative power. The removal and the restralllt upon
freedom of movement imposed by s 16(1) did not apply to the holder
of a permit to he ahsent from the reserve or Ahoriglllal institution in
question. Paragraph (bl of s 16(3) so provided. In accordance with the
reasoning exemplified in such decisions as Minister for Immigration
and Ethnic Affairs v Mayer (615), s 16(3)(h) would he construed as
impliedly conferring upon the Chief Protector the function of granting
pem1its \0 be absent from the reserve or institUlion in question.
Moreover. discretion attending the exercise of that function would he
constrained so as to deny the efficacy of the exercise of the discretion
inconsistently with any implied constitutional restriction (616). The
position would be likewise with any broader constitutional implication
as to freedom of movement, if such an implication existed.
That the structure estahlished hy the Constitution has as essential
clements a system of responsihle government and representative
government does not bring with it, as an implication of logical or
practical necessity for the preservation of the llltcgrity 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 dehate as to the content of the
phrase "freedom of association" (617)_ For the present purpose of
denying the existence of the relevant implication, 1 have taken the
expression as containing at least those familial associations which
would he impaired or indeed destroyed by the legal guardianship
conferred upon the Chief Protector hy s 7 of the 1918 Ordinance or hy
steps taken by the Chief Proteclor 111 exercise of powers conferred by
s 6 or 16 thereof.
The plaintiffs rely also upon the freedom or immunity from any law

((,10) (1992) 177 CLR I

(611) (t9\.14) t~2 CLR 104
(012) (1994) 182 CLR 2tl
(613) (1994) 182 CLR 272 at 328
(614) (1867) 73 US 35.
(6IS) (1985) 157 CLR 290 at 303.
(6(6) Miller \- TC." Chwmef ,liillP I'f\, Lid (I n6) t61 CLR 5V, al 014-015.
{(17) d Alisr,.olian C"mlll"nisl Parly \' Thr COJJlJJlol!\t'wlrlJ (l\.lSI) 83 CLR I at 175-
170.11\1-184
158 HIGH COURT [19%-1997

HeOFA or executive act proviuing for or having a purpose, effect or likely

1~%-19'n
effect of the uestruetion in whole or part of a racial or ethnic group or
KRUGER of the language anu culture of such a group. In their submissions, thc
plaintiffs sought to supply a factual substratum showing the Intention
-r"l: of the Commonwealth to commit "genocide". Issues of fact are
C(l"_''''.~_
WeALTl1 presenteu. They are not to be assumed, before trial. In the proceeding
presently before the Full Coun.
Gumm<lW J
Furthennore, the power conferred upon the Chief Protector by s 6
was conditioned upon the holding by the Chief Protl:ctor of an opinion
that it was necessary or desirahle In the interests of the Ahoriginal 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 alTecting the
welfare of the Aboriginals and to protect them "gainst 'immorality,
mjustice, imposition and fraud" (s 5(1)(1". These provisions arc
indicative of a eonCl:rn hy the Executive, in making the Ordinance in
exercise of the power conferred by s 13(1) of the Administration Act,
10 assist survival rather than uestruction.
The philosophy given expression in the specific prlJVlSlOnS 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 eighty yellrs had been perceived, initilllly by the
Imperial Government, as the plight of the indigenous inhllbitants of
Australia as a consequence of the npansion of European settlement
and land occupation (618). Officials styled "Protl:ctor ()f Aborigines"
were first appointl:d by the Imperial Government following a
reeommendatiun 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 J I January] 838 to Governor Gipps of ~ew South
Wales, the Colonial Secretary (Lord Glenelg) incluueu in his "general
view of the duties, which will devolve upon thc Protectors" the
following (619):
"2. He must watch over Ihe nghls and interests of the Natives,
protect them, as far as his personal exertions and influence, from
any encroachment on their property, ancl from acts of Crudty, of
oppression or injustice, and litithfully represent their wants, wishes
or grievances, jf such representation be found necessary, thm' 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 coloma] and State legislation on the
suhject. In South Australia, Ihis had commenced with an Ordinance
p,1ssed by the Governor and Legislative Council in IK44 'to provide

(6t8) See IYik "fople,' )' QueelL\l<wd (I ')%) 63 FeR 4'iO at 460,461
(619) Hi,wri,,,! Records utAli5lraha. SLri~, I. vol 19 (l')2:'), pp ~'i~-2SS_
190 CLR II OF AUSTRALIA 159

for the Protection, Maintenance anu Up-hringing of Orphans and other He or . \

1996-1997
Destitute Children of the Aborigines" (620), in Victoria wilh an 1869
statute, "to provide for the Protection and Management of the KRl'UE.
Aboriginal Natives of Victoria" (621), in Western Australia WIth the "
THE
Ahorigines Protection Act 1886 (WA) (622l, In Queensland with the COMMO'i-
Aboriginals ProtecTion Gnd Restriction of the Sale of Opium Act 1S97 WEALTH

(Q) (623), and in New South Wales with the Supply of Liquors to
Ahorigines Prevention Act 1867 (NSW) (624).
Against this hackground, it is little short of inconceivable that when
the Administration Act was passed in 1910 the power confcrn::u hy
s 13( 1) was restrained as a matler of necessary inference froin the
structure of the Constitution in the way contended for by the plaintiffs.
Genocide
The plaintiffs rely upon the Convention on the Prevention anu
Punishment of the Crime of Genocide (the Convention), approval to
the ratification of which by Australia was given by the Genocide
Convention Act !'::l49 (Oh). The text of the Convention is set out in the
Schedule to the statute. There is no further legislation whieh goes on
to implement the Convention in Austmlian mUllicipallaw.
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 aner 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 eh III of the Constitution. It is convenient 10 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 anlerior, issues whether s 116 applies to laws supported
solely by s 122 and of the interrelation between Ch III and s 122.

(620) R~pealcd hy s 2 of and replaced by the other provisions of lhe AlmriK'nes A('/
1911 (SAl.
(6ll) Amended 1">)' the AhonK'ne.\ Pmleclimj ,1('/ 1886 (Vkl) and repealed by the
Aboriliille.\ Act 1890 (Viel).
(622) Repeakd and replaced by the Ahm-iKine.'> An t897 (WA) and further replaced by
the Aborig;ne.\ A<:/ 190:; (WA).
(623) Amended by the Aborlg;nals Pro/en!"" and Re.Hr;c/;on of Ihe Sale of Of'iI/II/ Ad
1901 (QJ.
(6241 Repealed and replaced by the Ahorigine, PrO/en;,,!! AN 1909 (NSW).
160 HIGH COURT [I ':1%- I ':Itj7

He or'\ The free exercise of religion

19%1997
The plaintiffs submit thut the PO\\'Cf conferred by s 13( I) of the
Administration Act did not authorise the making of an Ordinance
TilE
which, in confcTTlng or providing for powers of detention and removal.
CO~'MO~ was a law "for prohibiting the free exercise of any rdig-lOn" within
WEALTH
the rneamng of S 116 of the Constitution. They suhmit that, if the
Administration Act itself had contained such provisIons, it wuuld have
cuntravcned the pmhibition in s 116 and that this would follow even if
such a law were passed in exercise of powers otherwise conferred
upon the Parliament hy s 122 of the Constitution.
In Atwrney-Geneml (Viet), Ex rei Rlark v The Common-
wealth (625), Gibbs J described that limb of s 116 which forbids the
making of any law for prohihiting the free exercise of uny 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 (626). On the other hand, it is as well 10 remember that III
Adelaide Co of Jehuvuh' s Witnesses Inc v The COn1f11omvealth (f,27),
Latham CJ said that s 116 proclaims not only the principle of
toleration of all religions, ""but also the principle of toleration of
ahsence of rehgion'. Moreover. freedom to act III accordance with
religious heliefs is not co-extcnsive with freedom of religious
belief (628), 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 or religion.
Further, a law which protects or regulates the personal or property
rights of others will not ordinarily offend s II f" despite curtailment hy
the general operation of that law of ovel1 activity which in respect of
some persons may give expression to their religious beliefs (629).
The use of the prepositioil "'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 ComTllom\iealth has made a law in order to
prohibit the free exercise of any religion, as the end to he
achieved (630). "Purpose' refers not to underlying motive but to the
end or object the legislation serves (6311.

(625) (1\.1S1) 146 CLI< 55') m 603.

(626) See CUrl1bra~-S[~wi1rl. "'S~L1;"n 116 ot th~ Constitution" . 1 u,Hwlr"" L,m'
Journal. vot 20 (1<)46) 207, at p 21 t.
(6271 (1\.143)67 eLI< llGJl In,
(621\) Chllrd, orlh" /Ve,,' F"irh,' CommiSSIOner or Pal'-roll T,u (Fiu) (j<)SJl 154 CI.R
120 al 135-136.
(62<)) d f-jlJl'loylllCJlI [)i"i5iOlL [)pl'"rrmerri of H",,,wr Resource" "1" Ore!'o/l ,. SlIIi,lr
(199m 494 us 1\72 at 1\71\l\SO
(630)cfilrromcy-Gcncnd (llicri, Ey I'e! R/"ck I' Thc COlllJiJonll'e"lr/r (191\1) 146 CLI<
559 at 653; Kn"!;gerl' Willimn< (1912) I.'i CLR 3M al 369.
(I'd I) /\II,\II'IIliw, C",,,m""'\1 Party" The C"''''IWII\I""i!111 (1 \.151) S3 CLR 1 al 273.
190 CLR 1] OF AUSTRALIA 161

The definition of "Ahonglnal lllstitution" In s 3 of the 1918 HC()F A

Ordinance includcd a "mission station" hut also any "refommtory,
orphanage. school, home or other IllstltutlOn The impugned
provisions of the 1918 Ordinance. and the general duties of the Chief
-,
1996-1997

K~U:;ER

TilE
Protector set out 111 s S( I), imposed no duty upon any officer charged
CO"""N-
with the administration of the 1918 Ordinance to bring up infants in \"B'-TH

any particular religion or to educate them in schools affiliated with any

particular religion. No conduct of a religious nature was proscrihed 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
douht may have had the effect, as a practical matter, of denying their
instruction 111 the religious beliefs of their community. Nevenheless.
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 Jaw.
In the wriuen submissions, by reference to extrinsic materials, the
rclevam:e and admissibility of ....hieh would bc an issue at trial, the
plaintiffs seck to place such a construction upon the 1918 Ordinance.
I have referred to the particular naturc of thc proceeding hefore the
Full Court. ThIs docs 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 havlllg a purpose prohihited by s
116 only upon consideratiun of extraneous matters indicating a
concealed means or circuitous device to attain that end, and that it is
pemlissible to apply s 116 In that fasbion (632). But these can only be
matters for another day.
Judicial power
The plaintiffs contend that the impugned provisions of the 1'J18
Ordinance conferred upon the Chief Protector powers which,
consistently with tbe 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
estahlished under a law of the Commonwealth. The propositiun here is
that, even if the plaintiffs arc 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 III 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

(f>~~) cr fJllnk otNSW \. 'the Comml",\\""I/" (19481 76 CLR 1 m 349: C"le l' lViii/field
(19S8) 165 ClR 360 m 401. CiI.I/lmwine T"ohev, Uri v S(llI/h Aus/ralla (1'1901
16'1 CLR 436 al 472-474.
162 HIGH COURT [1')96-19')7

H C Of A aujudgment of criminal guilt by a court cannot be eonferreu upon the

-,
19961997

KRU;ER
Executive hy a law of the Commonwealth (633).
The question \vhether a power to uetain persons or to take them into
custody is to be characterised as punitive in nature, so as to attract the
THE
C,,\1"ON.
operation of Ch Ill, depends upon whether those activities are
WEALTII reasonably capable or being seen as nl;eessary for a legitimate non-
punitive objective (634). The categories of non-punitive, involuntary
Gumn",,,,, J
detention are not closed (635).
The powers of the Chief Protector to take persons into custody and
care under the 1918 Oruinance were. whilst that law was 10 force, anu
arc now, reasonahly 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 ereation or legal
guardianship in the Chief Protector by s 7, the specification in s 5(l)
of the duties of the Chief Protector, the conditiuning of the power
unuer s 6 by an opinion as to exercise of the power being necessary or
uesirable 11l the lllterests of the persons in l.]uestiun for the Chid'
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 madc", anu the
eXistence before 1918 of long-establisheu statutory regimes in the
colonies anu States which were uirectcd to the wclfarc anu protectiun
of other indigenous persons.
Sectiun 122 oj'the COl/stitt/tion
Therefore. it is unncccss~ry to dcciuc the logically anterim
questions raised by the plaintiffs as to the rel~tionship bclwcen s 122
on the one hand and s 116 and Ch III on the other.
However, I shoulu express my finn v!C\v that s 122 is not diSjoined
from s 116. Also, were the mattcr res intcgru. it woulu he my tentative
vicw, as regards the Territory, that the provisions of Ch 111 are
applicable hut that existing authority in this Court would reqUire
reconsideration before that conclusion coulu be reached and applied.
I tum first to the constitutional text which proviues the founuation
for the existence of the Territory. The relevant provisions in the
covering clauses of the Commonwealth of Austrulia Constitulion
Act (636) were identified as follows by Dixon CJ tn Lamshed v
Lake (637):

i(33) KiAbte (19%) R9 CLR .~ I

(6-'41 eil" KI"'IIg LI,,! \' MlnlslCI' Fir lllllllipm!oll (1992) l7(i CLR 1 at JJ. 46.58.65.

"
((,35) ellu KiJeng t.i", (1442) 176 CLR I at 55.
(fiJ6) (iJ & 64 Viet c 12 (Imp),
(637) (1458) 94 CLR lJ2 ~1 140-141 The dj,tine1i'ln hel,,-ccn those tcrritorie,; which
wer~ once p~l1'; of ~ Stal~ '-lnd lhu.' ~ddrc"c<l hy eowring. cI 5. and ~xtcrnal
190 CLR 11 OF AUSTRALIA 163

"At the establishment of the Commonwealth the Northern Territory H CrJF A

fomled part or South Australia. In the definition of 'The States'
contained in s 6 of the covering clauses of the Commonwealth or
Australiu Constitulion Act, it is particularly mentioned, and after the
-,
1'!96-1~'!7

KRl.'(;ER

reference Lo South Australia as a colony thcre occur the words T"

COMMO,",'
'including the northern Territory of South Australia'. It formed part WEALTH

of a colony whose people agreed with the other colOnies 'to unite in
one indissoluble Commonwealth'. It formed part of the Common- (1"mm"",,)

wealth mentioned in the preamble and the suhjeet 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 inlO 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 Common-
wealth. The Parliament of the Commonwealth ratified the agreement
by the Northern Territory (Acceptullce) Act 1910, s 6 of whieh
declared thaL 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 thl:
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 contwl by a central as distinguished from a
State legislature (638). Nevertheless, the Parliament takes this power
in its character as the 1cgislature 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 Austraha except for OWl11g ohedience to the
sovereignty of the satTIe 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" (639l-
The fonnulation of this point by Kitto J in u!mshed v Lake has

(63S) Lam.\heJ \ I.flKt (I'ISS) 99 CLR 132 nt 142, p~r Dixon Cl.
(G3'!) LamS/led \. Lake 11'I5Bl 'I'l CLR L32 al 144. Webb ant] Taytor JJ agreed "illl
Dixon CJ.
]64 HIGH COURT [ 1996-1997

He nF A since received a strong measure of acceptance in this Court (640). This

I991>_19n
has been so notwithstanding his Honour's later doubts in Spratt v
Hermes (641) as to what he had said in the earlier judgment. In
Larn.~hed v Lake (642) Kitto J said:
THF
CO"",,'! "It has sometimes bCl:n remarked that the placing of s 122 in a lule
,,,[,nil and not altogether appropriate position in the Constitution does less
than justice to the far-reading importance of the subject with which
Gumn",,,, J
it deals. But the fact that the section is found embedded in the
agreed terms of federation, ,,"vith every appearance of having been
regarded in the process of draning as a provision upon a matter
germane to the working or
the federation, seems to me to unucrlinc
the necessity of adopting an interpretation which will treat the
Constitution as onc 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 anu Kitlo J has leu to acceptance of the
propositions that (i) the Parliament may legislate for Australia as a
whole when making laws ...vith respect to various heads of power in
s 51 of the Constitution and (ii) a law made by the Parliament in
exelTlse of the power confcm:u by s 122 is a "law of the
COlTlmOlnvealth" 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 acceptcd
by, the Commonwealth, it is sIll which provides authority for such
surrender and acceptance and specifics 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, sill 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 sIll (643l-
Section 111 of the Constitution states;
"The Parliament of a State may surrender any p<lrt 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, executivc and Judicial organs of government

(640) C,lflilid DuplicOiors Pr\' Ltd \ AU.\IWliwl Capillli TerrilOl)' (t992) t77 CLR 24g
al272, p~r Rr~nnan> D~ane ami T(}"n~y JJ; Svikarl ,-51",<,,,rl (tY94) 18t CLR 548
at .'i72-'i73, per Tooney J: at 581, per Gaudroll J: see also 51'1',,/1 \' Herm(., (1965)
114 CLR 226 at 2-'l2. per Barwick CJ
(641) (1965) 1 t4 CLK 226 at 250,
(642) (1958) 99 CLR 132 ~I 153-154,
(643) Plllers"'l .' O'Rnen (1978) 1.18 CLR 276
190CLR1J or AUSTRALIA 165

through which authority is exerciscd over what was previously part of He <w;\
19%-1997
a State. In Svikart v Siewarl (644), Brennan J said:
KRUGE~
"Territoncs surrendercd by a Statc and accepted by the Common-
wealth pursuant to sIll were dedared to he 'suhject 10 thc THE

exclusive jurisdiction of the CommonwealLh'. They were taken out CnMMn".

,nAl.TH
of the boundaries of the surrendering StZlte (645). Ibe Common-
wealth aelJuired. suhject to the Constitution, full sovereignty over a
s III territory (646). Not only did a surrendering State lose
legislative power over the sIll territory; it lost all "jurisdiction'
oyer it, including executi~e and judicial power."
The executive authority there identified is that executive power of
thc Commonwealth provided for in Ch II of the Constitution and
vested by s 61 of the Constitution in the Queen antI exerCisahle hy the
Governor-GenerZiL This power extends to the doing of acts within a
territory surrendered by a SlZIte to the Commonwealth without any
statutory authority (other than the necessary appropriation of funds
under s 83 of the Constitution) if those acts arc 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 (647).
As with executive power, there is no express statement 111 the
Constitution with respect to the operation of judicial power 111 the
Territories. However, s 51(xxxix) speaks of "[mJatiers incidental to
the execution of Z1ny power vested by this Constitution in the
Federal JudIcature". And, the terms of Ch III are apl to encompass in
all its aspects thc 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 eh l. From that circumstance
considerable difficulty has arisen. On one reading of the decisions in
this Court, as regards the Territories, no power is vested hy the
Constitution in any court and the creation and exercise of such judicial
power is left entirely to the choice 01 the Parliament in deciding to
legislate under s 122. Yet, covering cI 5 of the Constitution assumes
the existence of courts and judges of every pan of the Commonwealth.
Before further examilllng the pOSItion as regards legislative and
judicial authority in the Territory, it is appropriate to note that it would
be surpnsl11g if the surrender uf a part of a State to the Commonwealth
and its acceptance by the Commonwealth pursuant to s III 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

(644) (1')<.)4) tSt eLR 54S at 566

IM5) The C"mmlimvealth )' "f"odhill (19171 1" CLR 481 ~l 486-487; WIII'riling "
R,,"e/I & /}'I<,<I"II Pry Lid I t nO) t n eLR S9 m 114-125
(046) R I' Phillip,1 (1970) 125 eLI{ 93 <It 126: Wo1'/hilll< \' Rowell & MuH"" PIV Lid
I J nO) 123 CLR 89 al 126: and ,~" Official Record (if Ihe f)e!>me" Of 11i(
AII,mal"si"" Fedeml CoNVenliol! (,\ldboume), 2::1 Jamlal)' 1898, vol 4, P 259
(647) (1975) 132 CLR 164 at 169-170, 174
166 HIGH COURT [1996- J lJ1.)7

He OF A Commonwealth as members of th~ one body politic cstabhshcd by the

-
19%-1997

KRUJFR
Constitution (648).
Thus, it has been held that s 90 operated for the protection of the
people of the Commonwealth lllcludin-g those who rcsiucd in an area
THe
COM"1<\N-
of a Slale which subsequently became an internal Territory; those
WMUIL residents were and re!naincd cnlitlcJ to the maintenance of the free
trade area throughout the Commonwenlth which s 90 was intended to
Gummnwl ensure (649). Likewise. s 118 mandates as to the whole of the
Commonwealth a state of affairs wherein full faith and credit must be
given 10 the laws, public Acts and records. and the judicial
proceedings of every State (650).
Another protection to which those residents had been entitled was
that confcrred by s 116 against the making by the Parliament of the
Commom\'ealth of any law, inter lilia, "for prohihiting the free
exercise of any religion". Further, these residents had the benefits
which now from Ch III of the Constitution
Sections 116 and 122 o/the Constitution
Section 116 states:
"The Commonwealth shall not make any law for establishing any
religion. or for imposing any religious ohservance, or for prohihiting
the free exercise of any religion. and no rehgious test shall he
required as a qualification for any office or puhlic trust under the
Commonwealth.' .
The weight of authority, albeit none of it ueterrninative of the issue.
supports the proposition that s 116 operates to restm::t tht: exercIse of
the legislative power conferred hy s 122 (651 l.
It is true that s 122, in stating that the Parliamcnt may make laws fOI
the government of the Tenilories. does not include the expression
"suhject 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 (652) - which might qualify its scope. The hal' imposcd hy sIll)
upon the making of certain laws by the Commoll\vealth is imposed in
general terms. r-.foreover. it would be a capricious result if the

((i4Sj cf Capil"! 1;"l'liour",,< I'IY Ud \' A".<II'"Ii"'1 C,,!,ilal 'rerl'ill!ry (I')')}) 177 CLI{
24S at 276. 279. 2S6-2S7.
{(,4 L)j Capit,,1 {)lIphC<lI""S (1')'J2) 177 eLK 24S J( 279,
((50) '-am<hni , l."ke (1958) 99 CLI{ 132 'II 1.. 2,
(651) Add"ide C" or Jeh""ilh 's Wi/nesse" fne I' The C"mmo"H'eallh (194-') 67 CLR 116
J( 12:1. 156-157: '-"'!I.<hed I' uike (l l )58} ')'J CLI{ 132 Jt 143; SP1'<i1l \ Hermes
(1965) 114 CLR 226 al2'iO: Telm Tall \' The C"""I!"n<ve,i!lh (1%9) 119 CLR
564 JI 570: AllornnGerlt1'<i1 (Vid),- Ex rei lJ!<Kk ,. n,l' Comllllmwea!th (tnl)
146 CLiI. 55'! ~t 576. 618. 621. 649; cf C"e \. ill" UII!lI/Wl/weo!,h (1'17')) 53
ALJR 403 J( 40S: 24 ALR I IS aI 129: and AII(lmey-(~e"eral (1//('11. Ex rei m"d
vi",' C,,"mwm,ealrl, (ISIS I) 146 eLR 559 al .'i93-594
((,52) C"!,,w! TJ"I'!ic(lfon (1992) 177 CLK 248 J( 272, 27'1, 288. 290,
190CLR 1] OF AUSTRALIA 167

application of s 116 to a law made by the Parliament and operating in H COF A

1996-1997
the Territories depended upon thc l:in:umstance that the sourec of the
power of the Parliament to make the panicular law was to be found in
s 51 rather than s 122. The reasoning of Dixon CJ and Kitto J in
THE
Lalnshed v Lake (653) is responsive to what otherwisc would be a CO'l"ON
constitutional anomaly. \IfF.ALTIi
The reading of the Constitution, in the manner indicated by
Dixon CJ and Kitto J, as a cohcn::nt instrumcnt of national Gumm"", J

government, incvitably 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 I II .
Accordingly, I would reject the submission by the Commonwealth
that the case the plaintiffs sought to make in reliancc upon s 116 failed
at the outset because the Admimstration Act was a law supported by
s 122 of the Constitution.
The judicial power alld the Territories
Chapter 11l 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, accordmg to law. on the
other arnlS of government; and (ii) protection of the ltldepem.lcnee of
the judiciary to ensure the determination of controversies free from
domination or impropcr influence by other branches of government
and in accordam:e with judicial process (654). Chapter III gives effect
to the doctrines of the separation of the judicial power from other
functions or government and of judicial review which are essential
integers of the federal structure of government (655). It also serves the
personal interests cif litigants (individual, corporatc and government) in
having their controversies resolved by an independent judiciary (656).
Certain decisions of this Court have sought. explicitly or otherWIse,
to explain the content and naturc of that part of "the exclusive
jurisdiction of Ihe Commonwealth", v,'ithin the meaning of s 11 I of
the Constitution, as pertains to the judicial power. Provision as to the
legislative aspect of the cxclusive jurisdiction of the Common-
wealth" in relation to the Territory is made by s 122 and, in some

(653) (1'J5H) 'J'J eLR 1.'2 at 141-144. 153-154. Webb and Taylor JJ agreed with
Dixon CJ.
(654) I'o!vukhovicl,., The C'mnmmmealth (1991) 17~ C'LR 50J at 6::\4685
(655) AUSlwliml Cormnwli,\, PUrly (1951) S3 CLR I at 1<,1:,,262-263; R v Kirby: Lx
parle Boilermakers Socier)' o(Australi" (J (56) 94 eLR 2';4 at 275-276.
(656) \\il.,on l' MiniS/erfo! AhoriJ!inal <lrld 1''11,,-1 Slwi, 1,1!<",J", .V/'"n (19%) IS9
eLI{ I Jl II 12. 16-17, 25-26, 41-42.
168 HIGH COURT [1996-1997

HenF A respects, by s 51 of the Constitution (657). Section 61 embraces the

-
19901997

KRllC,[R
executive pov,'cr in relation to such a Territory. An answer both simple
and close to the text would have been given by a decision that.
conformahly with s 61 as to the executive power of the Common-
"
THE
wealth, provision was made by s 71 as to the judicial power or the
C".''''''N- Commonwealth in relation to the Territories.
WEAl.TH

In R v Kirby: Ex parte Boilermakers' Society of Australia (65tq.

Dixon CL McTiernan. Fullagar and Kitto 11 snid:
"It would have been simple enough to follow the words of s 122
and of S5 71, 73 and 76(iiJ and to hold that the courts anu Jaws of a
Territory were federal courts and laws made by the Parliament.'
Later, after referring 10 R v Bernasconi (659) and Buchanan v The
Commol/wealth (660), Winueyer J said (661):
. 'Nevertheless and although, because of the emmence of those who
gave the judgments and of their close knowledge of the genesis of
phrases of the Constitution, it may seem holdly unhecummg to say
so, I do not think that the conclusion that Ch 11[, as a whole, can he
put on one side as mapplicahlc to matters arising in the territories is
warranted hy its actual language."
In my view, there is much to he said for the proposition that the text of
the Constitution, whieh must he contmlhng. 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 mvolve
wholly or exclusively disputes as to rights and liahilities conf"crred or
imposed pursuant to the general law rather than federal statulC law.
BUI s 7( 1) of the Northern Territon Acceptance Act 1910 (Cth)
provided:
"All laws in force in the Northern Territory at the time of the
acceptance shall continue in force, hut may he altered or repealed by
or under any law of the Commonwealth."

(657) In Firml '" Ste""nWIJ (I'H7) SH CLR 52X at S5H. Latham CJ expre~sed Ihe view
that the effect of, 122 i, that (h~ Parliam~n( h3' "exdu,iv~ power'" within Ihc
m~anillg of s 52(iii), so Ih3t, hy Ihe operation of, 52{iii) in rebtion to s 122, Ihe
P3rharnent "would appear to hav~ POWCI' to ma~e law.' for Ihe COIIl[rtO!mealtll
with respect \() the gov~l'llmcnt of :--;ew Guine~" II is unneLL.<>ary to pursuc this
question in the present ~~5e.
(65S) (I()56) 94 CJJ{ 254 at 290. The deci,io[l of th~ High Court "as followed hy the
enactrnent of the ('""cili",i,,,, wid ArI,illw;'1/I A"I1956 (Oil). Section 49 th~r~of
decmcd certain ordcl's of th~ (,Id ComlTlonwe~llh COUll of Con.:iliation 3nd
Al'bitration w be Ol'd~rs of Ik ne" COJllmo[lw~alth tndustrial COlin
(659) (1915) 19 CLR 629.
16M)) (1911) 16 CLR -']5.
(661) Sprall v lkrmcs (1'165) 11-'1 CJ.R 226 '-'I 27-';
190 CLR 1] or AUSTRALIA 169

Such a provision excluded the possibilities of a legal vacuum and of He OF A

the surrender and acceptance of the Territory being equivalent to the
cession of territory by one power to another by trealy, so that the
ceded territory became part or the nation 10 which it was
-
19%-1997

KRl'G""
,
TilE
annexed (662). further, in the Province of South Australia, it had heen COMI>-<ON-
regarded as axiomatic that from the beginning of European occupation Wr:ALTH

the common law and English and Imperial 1cgislution would apply
under the common law principles on the reception of law in settled
colonies (663). Finally, there may be a "matter [aJrising 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 maHer owes its existence to
federal law or depends upon it for its enforcement (664).
Hence, the force in the statement. with reference to the position m
the Australian Capital Territory, made by Dixon J in Federal Capital
Commissio/l v Laristan Building & Investment Co Pty Ltd (665):
"It may well be that all claims of right arising under the law m
force in the Territory come within this description [ie, within
s 76(ii)], hccause they arise indirectly as the result of the Scar or
Covernment Acceptance Act 1909 (see s 6), and the Seat of
Covernment (Administratio/l) Act 1910 (sec ss 410 7 and 12)."
However, on the appeal m Aflomn'GenfTal (Cth) v The
Queen (666), the Privy Council for the time heing foreclosed any
development to Implement these views by a dogrnatic statement that
eh III was to be regarded as '"exhaustively describing the federal
judicature and its functions in reference only 10 the federal system of
which the Territories do not form part". That ohligcd Dixon CJ, in
Lamshed v Lake (667), 10 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 Hemlcs (66R), alLhough many aspects of the
suhject were discussed, two points were decided. lne first was thai the
Commonwealth legislation supported by s 122 may create or authorise
the creation of courts with jurisdiction with respect to occurrences in

(662) s~~ Bud""'''n'' The ComIJJUn""fallli (l'J131 16 CLR 315 Jt 32-'1. 333-334.
(66.3) COmm;H;OJler f!f Slamp.' (SAl" Telel'rllph If/lnlllle,,1 Co Fly Ltd (IYYS) IH4 CLR
-'15., JI 4M-467.
(664) U'/C tndli,\/rifJ!.Id \' BlIW (AUSlraha) Lid (]YH3j lSI CLR 575 m SH I
(665) (1929) 42 CLR 582 at 585. See al,o Dixon IT, rcmarks in Chapman" SUllie
(1963) 110 eLR 321 al 32'J-.'30. Cowell Jnd Zinc" Fedi'ral Jun.,dil'li"" in
AuS/ralla. 2nd ed (l'J7Hl, pp t61-162 conclude Ihut ull the common bw (inchlding
pJ'ivntc inl~mali"n~lluwl operming in J territory hJ, J slJ!ulOry ha.,i,.
(666) (tY57) 95 CLR 529al .'i4.\ [19.:'7J AC 288 ~l 320,
(667) (1958) 99 eLR tJ2 m t42.
(6681 (1965) 114 eLi{ 226.
'70 HIGH COURT [1996-1997

Heo,. A or concerning a Territory without observance of the requirements of

19%-1997
s 72 of the Constitution. so thai the stipendiary magistrate hearing the
charge in question under the Post and Telegraph Act 190 I (Cth) was
validly appointed. Secondly, a courL or a Territory having the
THE
(m'Mm.;.
appropnalc local jurisdiction may enforce in relation to acts occurring
"'CALIfI within the Territory a law made hy the Parliament upon a subject
matter falhng within s 51 of the Constitution and, as was the case with
(iumm,'wJ
the 1901 statute, intended to operate throughout the Commonwealth.
This is so. even though the Territory court is not one in which the
judicial powel" of the Commonwcallh is vested within the meaning of
s 71 of the Constitution (669).
Capital TV & Appliances Pry Ltd II Falcoller (670) 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 junsdiction within the meaning of s 73 of the
Constitution (671), Ihe consequence was that no appeal lay hy 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 nOl the matter in issue otherwise was one
of federal jurisdiction, However, no such law apphed to the instant
case and the appeal was dismissed as incompetent. Nor was there any
legislation conferring jurisdiction to grant special leave (672).
As it presently appears to me. and contrary to the submissions for
the plaintiffs, it would he necessary at least to reopen these deeis10ns if
eh ITT wcre to be given that operation in relation to the Territories
descrihed in Boilermakers by Dixon C1. McTiernan, FullJgar and
Kitto 11 (673), This operation would follow from the "simple"
reading of eh III such that the courts and laws III force III a Territory
wcre federal courts and laws made hy the Parliament or made pursuant
to such laws.
The treatment in some of the earher decisions of the constitutional
footing for the exercise of judicial power in the terrilOnes appears to
have heen hlighted in several respects. First, there IS the proposition
that controvcrsies which arise under some laws made hy the
Parliament will involve the exercise of federal jurisdiction \vhilst
others will involve the exercise of jurisdiction which is "territorial"

(66')) Th" authoriti<'s supponing that ~ol1clusion ,,'en= bier ~"lkcl~cl hy Gihhs J in
Capiwt TV & App!illJu,'e" Ply !.rtf \' Fa!coner (1971) I ~5 CLR 59 j a( 627.
(fJ70l (1971) 1~5 CLR '\91
(671) d ll"rris L' The Queerl (954) 90 C'LR 652 J( 655, wh"re Dixon CJ. Fullagar.
Kitto and Taylor JJ .,aid '"The juri.,clicliol1 of this Court to ~nt~rtain the appeal
ari,,~;;, if [lot untkr (h~ Constitution. at ~Il events Linder,; 64 of the Papull (Inri . IIel<
Guine" .1c1 1949-1950,"
(6721 Ct'f',wl IV (1971) 1::'5 CLR 591 al fl~~. per Gihh, J, d at 597, 600. per
B~r"i;~k CJ; a( fl02, per McTiernan J: at 624, per Walsh J
((i73) R"i!em",kers (195fJ) 94 CLR 254 at 290.
190CLR1] OF AUSTRALIA 171

and '"non-federal". This docs not sit well with the estahlished doctnne H C Of A
19%-1997
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 (674).
['HE
Secondly, to treat the scope of eh III as reflecting the division of COM-""."-
legislative power between the Parliament and the legislatures of the WHLTH

States gives insulTiclent 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 100
narrow a meanmg. Many heads of federal jurisdiction emhrace
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 (675). In addition to actions between Stales, the controversies
Include those arising undcr the Constitution or involving the
interpretation of its provisions (including s 122 itself), and those
where an injunction, prohibition or mamlamus is sought against a
Commonwealth officer (676). This renders inapt any analogy to the
division of legislative power effected hy s 51.
ThinJly, the ahsence, save in covering c1 5, 11l the Constitution of
reference specifically 10 territorial courts and, in particular, the ahsencc
of specific identification thereof In Ch III have l:m::ouraged the helie!"
that the creation and composition of territorial couTts ami the exercise
of jurisdiction by them is a maller entirely for the legislature: yet, as
was pointed out by Dixon CL McTiernan, Fullagar ami 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) arc consistent with a contrary view.
Fourthly. there has been, at least hefore the amemlments 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 couTtS exerciSing
jurisdiction in relation to the Terri tones.
At a time when the external Territories included or were expected to
include populations then regarded as being in a hackward state or
development, there was an evident apprehcnsion as to what would be
involved in the extension there of the Australian legal system in all its
incidents, including trial by jUI}'. Further, both in this country (677)
and the United States (678), it has become clear that delcgation of

(674) Berwick l.ld \. Cm} (1976) 133 CLR 603 at 60H: ,ee abo Capitaf Dupliclllfin
(19\12) 177 CLR 248 at 272. 288.
(675) SOUlh Alls/mlio v Viewri" (I'! II) 12 ClR 667 at 676.
(676) See Ex parte Goldring (19m):< SR (]\;SW) 2(i(). in whkh it was Ildd, before the
est"blishm~m of the High CourL that a State coun had no power to grJllt
mandaTTlu, ag~inst a federal officer
(677) lfar,-i, \ Cal"dine (1991) 172 CLR 84,
(678) S~e Harri.' v C"f",lme (1991) 172 elR ~4 at 1Y)-140: Chemcrinsky, Fella,"
Jun,'die/irm, 2nd ed (1\.194), *4.5.2
172 HIGH COURT lI9%-JlJ97

He OF A some parl of the Junsuiclion, powers anu functions of a federal court

-
1~%-1997

KRU'ER
to its officers is, upon certain conditions, permissible and consistent
with the federal judicature provisions made by the respective
Constitutions,
THE
The first consideration is nowhere more evident than in the
en""""
WFAUll Judgment of Isaacs J In R v Bernasconi. The Court therl: decided, on a
case reserved by the Central Court of Papua. that the accused's
Gumn",,,,. J
deemed request for a jury had been rightly refused and thal s XO of the
Constitution WJS inapplicable. Isaacs J said (67lj):
"[Section 122J implies that a 'territory' is not yet in a condition 10
enter into the full participation of Commonwealth constitutional
rights amI powers. It is in a state of depemlency or tutelage, and the
special regulations proper for its government until. if ever, it shJl.I
be admitted as a member of the family of States, an:: 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 Gennan or Polynesian. would come within s 122, and
not within s RO. 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 he hy jury, and every such trial shall be held
in the State where the offence was committed, and if the ollence
was not committed within any State the trial shall be held at such
place or places as the ParlIament prescnbes."
In its tenns s 1\0 thus contemplates that the offence in question may
not have hcen 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 Common-
wealth having a valid extraterritorial eHec! (680). In either case, the
trial is, pursuant to s 80, to be hl:1d at such place or places as the
Parliament prescribes. rurthemlon::, the: "offence against any law of
the Commoll\veahh' referred to in s 80 may be: an offence against a
law applicable only to a Territory_ This is a mailer adverted to by
Evatl J in J'ji-ost v Stevenson (681). Ii" a law made in pursuance of the
powe:r coni"em::d hy s 122 IS a "law of the Commonwealth' for the
pllIposes of s 109 of the Constitution, as established by Lamshed r

(679) R v Bem",,'olli {191 5) 19 CLR 629 at 637-63S_

((iSO) Leelh l" The C""I1IIO"".",IIIII (1992) 174 CLR 455 Jt 46'1. 47,5. 4/;(,_ 501 and ,,'-'~.
generJlly. 1'"lyukhoric/i v The COlllllwfIll'eilllh (1991) 172 CLR 501
(6Sl) (l'n7) 58 CLR 528 at 592
190 CLR 1J OF AUSTRALIA 173

Lake, it is difficult to maintain the proposition that such a law is not a HCo, A
19%-1997
"Iaw 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
THE
surprising generalisation that no part of Ch III of the Constitution can CO"MON-
have any application to territories under s 122". WEALTH

A further consequence of this generalisation, before the passage of

(,umnw",)
the Privy CO/lneil (Limitation of Appeals) Act 1968 (Cth) s 4. was that,
although no appeal lay from the courts of a Territory under s 73 uf 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 Sohcitor-General for the Commonwealth (682):
"It is accepted that an appeal hy special leave lies to the Privy
Council from the decisions of other federal courts and the Supreme
Courts of the Territories, although the junsdiction 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 he askcd from a decision of a Federal
Court (not being the High Court) or of the Supreme Court of a
Territory." (683)
The point is that th~ 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 CoU!1 was placed hy s 73 of the Constitution.
The provision would have been unnecessary if the view had been
tak<:n that the l:ourts 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 \Vestcrn Australia
Jurisdiction previously vested in or exercisable hy respectively the
Supreme Court of Christmas Island and the Supreme Court of the
Cocos (Keeling) Islands. [f the views indicated ahove were presently

{(iS2) M~son. "Th" Li",i(~(ion or Appeals to Ihe Privy Coun"il rrom IhL High Court nf
Au,lealia. rrom Fnkral Courts othcr Ihan thc High COUrt, li'om Ihc Supremc
Courls of Ihc Tcrritories and from Courts cxcrcising federal Jurisdiction".
Federal La,,' Rn'le\;" vol 3 (l%S1 t. aI P [7, This followed from the view wken
in Parkin Wid C"Wfler) Jallles (1\.1051:2 eLI? 3t5 aI 330,332 of Ihe ,cope of Ihe
Judi"ial C''IIlmillee Ac' tS44 (Imp) (7 & S Vict c 6'): sce CurS011 ,'Jolm I,'<lir/;I.\
& SOli,' Ltd (t,)\.It) 173 CLR 1')4 aI 212-2JJ.
{(iS3) Th" sectioll thus d~Jlt Jbo with Jpp~als from fed~r~1 wurh olh"r (h~n th~ High
COUIt. The rea50ning in the laler decision The COllllllomn'allll ,. Q""t'll.rI",,,/
(1975) 134 eLf{ 298 ~t 3t4-316. 32S. indic~tes th.n Ch III op"rJted to limit the
prcrog:llive hy Lxlinguishing it in respect of mUlters ari,ing thereund"r, savc ror
the pres"rvation thereof in r"'p""t only of c"n~;n High Court ~ppeJI,
174 HIGH COURT [ 19%-1997
HC(lFA authoritative. there would be no difficulty in classifying those laws as
1996-19n
supported by s nOii) of thc Constitution. As it IS, rclumce apparently
KRLnER must be placed on s 122 as conferring authority upon lhe Parliament to
confer jurisdiction upon State courts.
THE
Co""o,,- Territorial courts
WEALTH
As mattcrs now stand. the existing dislocation. if not disjunction. of
Gumm""') the territorial courts prm.luces several consequences, of daily import-
ance, which appear to be adverse to the scheme and structure of the
Constitution. This is noncthdcss so in the light oj" changes made to the
tcrritorial court structure by legislation such as the Northern Territon'
Supreme COlirt (Repeal) Act 1'.l7'.l (Oh) and the Supreme COllrt Act
In'.l (NT) (the NT Act). The first statute repealed the Northern
Territory Supreme COllrt Act 1961 (Cth) but provided (s 5) that tile
Supreme Court as established hy the second, territoriaL statute is to he
deemed as 10 he a continuation In cxlstcnce "without allY change in
identity" of the Supreme Court as established by the 1%1 statute.
Section 40 of the NT Act provides for the removal from office of a
Juuge of the Supreme Court by the Administrator upon an address
from tbe Legislative Assembly praying for removal on the ground of
proved misbehaviour or llleapal:ity (684).
Matters which arc 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.
undcr received doctrine. are neither federal courts nor courts of a State
within the meaning oj" 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 rooting 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 maltcrs.
In Capital TV & Appliances Pn Ud \. Falconer ((i!)S). Windeyer J
said:
"When this Court hears appeals from courts in the territories,
pursu<lnt 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, exerClsmg a JUrisdiction conferred by the

(6~4) The ACT Supreme Court (Tnms/erj A<'I t')')l (Ohl provjd~d for th~ lramfn llf
responsibility for the Suprem~ COlin of the Austr~ti~n C~rita1 Terrilory from the
Common",e~llh hi Ihe Territor)'. Seelion 8 the",of inserte,l.' 4Su in the .1uslralia"
G'fJl'wl Terriwry (Sell~G"""lmllenlJ Ilu 1988 (Cthl. The dICct of this I, thJt ~ny
enactment of the L~gisl~tive Assembly of th~ Territory ",bling to r~[]Io\'al fmIll
oflleL of a judicial oniccr I!lu,t folio", the pCll"liLular procedures therein specified.
including an adverse rcporr by a judicial commi,sion ~nd detemlin~lion hy lhL
Assembly lhat Ih~ faLts so found by th~ eommi."ion amounl to lIIi,bchaviour or
phy,i~al or ",~nt~t in~~pa~ily idcntili~d by IhL "'''Hlllis;;inn.
(085) (197t) \2'; CLR 59t alotl
190CLR I] OF AUSTRALIA 175

Parliament not pursuant to its federal powers but as a sovereign H COF A

1996-1997
legislature having plenary powers over Australia's territories. The
Parliament can authorise an appeal to this Court, on such conditions
and suhject to such limitation as it thinks fit, from any court that it
THE
was within its power as a sovereign legislature to create, although it C()MW)~'
is not a court within the federal system and governed hy the "'MLTIl
prOVISIons of Ch III of the Constitution."
Gumm"", J
There are two difficulties with the propositions in that passage. lbe
first concerns the situation where the territorial court has heen
exercising what otherwise would he considered federal jurisdiction, for
example, by determining a matter arising under or involving the
interpretation of s 122 itse1L or a matter arising under a law made hy
the Parliament, The received doctrine, strikingly applied in The
Commonwealth v Queensland (686). is that the judicial power
delineated in Ch III is exhaustive of the manner in and the extent lo
which judicial power may he conl"crred on, or exercised hy, any court
in respect of the suhjeet matters set forth in ss 75 and 76, "matters" in
those sections meaning "subject matters" (687).
Secondly. it is fundamental that the Constitution creates an
"integrated system of law" (688), and a "single system of
jurisprudence" (689). The entrusting by eh Ill, in particular by s 73.
to this Court of the superinlendem:e of the whole of the Australian
judicial structure, ils position as ultimate inteflJreter of the common
law of Australia (690) and as guardian of the Constitution are
undennined, 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.
TIICse conclusions are the more remarkable when it is remembered
that there is denied, under present doclrine, 10 the Judicial officcrs of
the courts of the Territones the constitutionally entrenched security of
tenure otherwise provided by s 72 of the Constitution. The result is the
dilution of the protection otherWise afforded 10 citizens hy the
countenancing of determination of their disputes hy two levels of
courts created hy or pursuant to [a\vs of the Parliament of Australia.
Such a situation sits ill with the general requirement that Ihe

(6R6) (19751 134CLR 2n,

(6R7) The CO/rllJul!lweo!liJ \' Queentl"",1 (1Y751 U4 CLR 29R ell 313-315, 327-329. SoX
also Vic(()ria'l Sleved",illl{ & Gel/eral COlltwcti"l{ Cli Ply l./d ilnd ,He<lkes .-
Di!(ntlll (1931) 46 CLR 7J at 116: Harris I' C"lodine (19911 172 CLTl. 84:lt 109.
120,
(6881 Theoph""ou\ (1994) 182 CLR 1()4 m 141 SC~ :llso Koble (19961 189 eLl{ 51 at
102-104,111-116,1371-40.
(689) 1""Il!(e v Au.tlm!iilt! Hl'(!udCiiSling Cmf'0,-"t;"" (1997) IR9 CLR 520 al 564,
{6YOl Ires/erll/lustrali" '" The C",nllloIlH-'c<drh (:,'<lI;I'e "lille Ad C"se) (IY95) IR3 CLTl.
373 al 486.
176 HIGH COURT [ 1996-1997

He",. A Constitution binds the courls, Judges and people of every State and of
19%-1997
every part of the Commonwealth (covering cI 5).
The plaintiffs submitted that . "in the light of contemporary
understanding of the federal structure" it is difficult to see any basis
rHE
COMWl,,--
for c,;:cluding the application of the requirements of eh ITT from the
"'Mull exercise of legislative power under s 122. It will be apparent that I sec
the force in that submissIOn. However, in the present state of the
authorities, the plaintiffs cannot make good their suhmi~si()n that all
laws of the Commonwealth, including those: supported by s 122, must
comply with the doctrine of the separation of powers found in eh nr
of the Constitution. Moreover. and as I have Indicated, even if the
plaintiffs ",,'ere correct, that would not produce Invalidity of any of the
laws they impugn in these actions.
Conclusion
Question I of the questions reserved in each action should be
answered by saying that none of the legislation In respect of which"
Jeclaration of invalidity is sought in thlit action is invliliJ by reason of
any or 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.
KRUGER v THE CO\lMON\VEALTH
I. The questions reserved for the consideration of the
Full Court be answered as follmvs:
"Q. I. /s the legislative power conferred hy
s 122 oj the Constitwion or the power to
enact the Ordinances and regulutions
reji'rred to in pars 7-12 inclusive of the
Amended Statement oj Claim so restric-
ted by alty and which of the rights,
;?uaranrees, imlllunities, jreedvllls, or
provisions reji'rred to in par 29 of the
amended statement oj claim m: to
invalidate the Aers. Ordinances and
regulations referred to in pars A n, C
and D oJ'the claim to the (,\tent pleaded
in those paragraphs ')'
A. No.
"Q.2. Does the Constitution co/lfain any right,
guarantee, ifllflHllJity, ji"eedmll or pro-
vision as referred to in par 29 oj" the
amended shltemellf of claim, ([ breach or
which bv-
(a) an officer o(the Commonwealth. or
190 CLR 11 OF AUSTRALIA 177

(b) a person acting for and on behalf of IlCoFA

the Commonwealth;
gives rise to a riRht 0{ action (distinci
Fom a right (~f action in tort or for
-
lY%-IYY7

K.lCC;ER
,
nrc
breach of contract) against fhe Common-
wealth sounding in damages,?"
Co""",,-
"'HLTH
No.
If ves to question 1 or question 2, are
any and which (~f the matters pleaded in
suhpars (d) and (e) of par 29 01' the
amended dljl'nce relel'tmt to the exist-
ence, scope or opemtion at any material
time 01' any and which of the rights,
guarantees, immunities. freedoms and
provisions?' ,
A. Unnecessary to answer.
"Q,4, {fyes to question 2-
(a) on the facts pleaded in pars 1 to 6
of the amended statement (~f claim,
are the plaintiffs' claims (or any of
them) for damages for hreach of a
constitutional right, guaral/fee, im-
nwnity, freedom or provision sWttlte
barred?
(b) by what statute?"
A, Unnecessun to answer.
"Q.5. II yes to qliestion 2, on the facts pleaded
'" -
(a) par.1 I/()6 oJ Ihe amended .\"fate-
mellt (~f claim. par 3611(a) and (cj (~f
the amended !fljt'nce and par 7 rd'
the amended r('ply:
(h) pars 1 to 6 01' the amended stute-
ment oj' claim, par 36R(C) oI the
amended defence and pars 6 and 7
c1'the amended reply,
are the plainlijj~" claims (or allY oI them)
for damages for hreach 01' a
constitutio/l(l! right, guarantee. immun-
ity, ;reedom or provision barred, or
capable oI being barred, br WI implied
constitutional time limiTatiOIl reqlllTing
thar Ihe claims be instiluled 'within a
reasonable time?"
A. Unnecessary to answer.
"Q,6. II yes to question 2, on the facts pleaded
in -
(a) pars I 10 6 of the amended state-
178 HIGH COURT [1996-1997

HeOJ' A mew olc/aim, par 366(U) and (e) oj'

-
1996-1997

,
KRUiER

Te,
(b)
the Amended Defcllce alld par 7 of
the amended reply;
pars I to 6 of the amended siafe-
ment of claim. pur 368(C) of the
C""MON-
,VE.'LTH amended defence and pars 6 and 7
of the amended reply,
are the plaintiffs' claims (or any oI them)
for declaratory rdief and/or damages for
breach of a constitlltional right, guaran-
fee, immllnitv, ji'crdom or provisioll -
(i) capable or bein;? barred by
laches or other ana!O!?010
equitable principles?
(ii) harred In laches or other anal-
ogous equitable principles?"
A. Unnecessary to answer.
"Q.7. On the fuets pleaded in pars I to 6 of the
Gil/ended starement of claim -
(a) arc the plainriffs' claim I' (or mn' ul
them) jor dUII/agl's for wrongjid
imprisonmcm and deprivation or
fibert\' stalute burred?
(b) bv \Vhat statute')"
A. Unnecessmy to U/I.lwer.
2. The plaintiffs pay the derendant's costs
DRAY v THE COM;\IO:"WEALTH
I. The questions reserved for the COllsideratioll o( the
Full Court be answered as Io{{{iI\'s.
"Q.l. Is the legislative power conferred by
s 122 of the Constitution or the power 10
enact the Ordinances and regula/iolls
referred to in pars 4-9 incfllsin: of Ihe
amended statement (~r claim so restricted
bv any and which of rhe rights, X/UI/WI"
tees, immunities, freedollls, or provisions
referred to ill par 20 of the amended
statement of claim as 10 invalidate the
Acts, Ordinonces ulld regulatiotls re-
ferred to in purs A B, C and D of the
claim to the e.tlenl pleaded ill those
paragraphs?' ,
A. No.
Q.2. Don the ConstiTUtioll contain OilY right,
guarantee, illllllllnity, freedom or pro-
vision as referred to i/, par 20 I~f the
190CLRII OF AUSTRALIA 179

amended statement 01' elt/im, a breach of HCnF!\

1~%-1~~7
which bv- ~

(a) an officer oj'the Commonwealth; or KRl;Gl"

(h) a person actin;; for and 011 behalf of
THE
the Commonwealth; CnMMnN-
Rives rise to (I right of action (distinct WBUR

from (I right of action in tort or for

breach of contract) against the Common-
wealth sOlll1dillj? in damages?"
A. No,
"Q.3. If yes to question I or question 2, (Ire
any and which of the maTters pleaded ill
subpars (d) and (eJ of par 26 of the
amended defcnce relevant 10 the exist-
ence, scope or operation at (my matprial
time of any and H'hich of the rights.
glwruntees, immunilies, freedoms (lfld
provisions?' .
A. Unnecessary to (I/ls,ver.
"Q.4. If yes 10 question 2-
(a) on Ihe facls pleaded in pars 1 10 3
of the amcnded statement of clailll.
are the p[aintiff~" elaillls (or any of
Ihem) j(ir damages j(Jr breach oj a
cOllslitl/tional right, glluTOlIIee, im-
munil.\', freedom or provision slO.lute
barred?
(b) by what statl/te?"
(!lu/ecnsary II! answer.
If ves to question 2, on the facls pleaded
/11-
(a) pars I 10 3 oj'thc amended stu/e-
ment of claim, par 33B(a) and (c) of
the amcnded defence (lnd par 7 of
the all/ended reply;
(b) pars I to 3 of the amended stale-
ment of claim, par 33t1(c) of the
amended dlf'ence and pars 6 and 7
of the amcnded reply,
are the plaintijj~" claims (or any (If them)
jiir damages jiir breach oj u
f(JIlstitutional right, gual'Unlee. illl/lllm-
ify, .fieedom or p{(JFision halTed. or
capable of being barred, hv an implied
CO/lStiftltional lillie limitation requiring
that the claims he instituted within a
reasorwble lillie?"
Unnecessary to I/IlSwer.
180 HfGH COURT [1996-1997

H C'J> A "Q.6. ~(yes to question 2, 011 the facts plmded

1996-1997
'"
(a)
-
pars I 10 3 of the amended srate-
ment of claim, pur 33~(a) and (e) of
I' He
C()M.wJ~
tile amended defence /llid par 7 of
WEALTH the anlcnded rep!r;
(h) pars 1 to 3 of the amended slate-
mew of claim. par JJR(c) (!f the
amended dffence and pars 6 and 7
of the amended reply.
are the plaintiffs' claims (or allY of them)
jiit declaratnry relief and/of damaRcs for
breach of a constitutional right, gllomll-
lee, immunity. freedom or provision -
(i) capable of being barred h)
laches or milt,. analogous
equitable principles?
(ii) barred by laches or other wwl-
ogous equitahle principles ,:)"
A. Unnecessary to answer
'Q.7. Oil thejiu':ls pleaded in pars I to 3 offhe
(imended statement (~f claim -
(aJ are Ihe plaintiJIs' claims (or any of
them) j1lr damages for .vrollgflll
imprisonment and deprivation of
libert)' stutule barred?
(h) hy what statute?"
A. Unnecessary to an.nrer,
2. The plaintiff, pay the defendmrt's costs,
Soli(;itor for the plamtills, North Australian Aboriginal Legol Aid
Sen'ice Inc.
Solicitor for the defendant, Australian Government Solicitor.
Solicitors for the interveners, I V Knight, Crown Solicitor for the
State of New South Wales; M D Wafter, Crown Solicitor for the State
of South Australia; P A Panegyres, Crown Solicitor for the State of
Western Australia.
WAH