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Published online by Cambridge University Press: 24 January 2025
(1970) 44 A.L.J.R. 25. High Court of Australia: Barwick C.J., McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ.
2 Order 35 rule 2 of the High Court Rules provides: “If it appears to the Court or a Justice that there is, in a proceeding, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact determined, the Court or Justice may make an orderaccordingly and may direct that question of law to be raised for the opinion of the Court or of the Full Court, either by special case or in such other manner as the Court or Justice deems expedient ”.
3 S. 122 of the Constitution of Australia 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. ”
4 The joint judgment of the High Court (seven judges) was delivered by Menzies J.
5 (1970) 44 A.L.J.R. 25, 26.
6 51(xxxi) of the Constitution provides: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, andgood government of the Commonwealth with respect to:— The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws ”.
7 Op. cit., 26.
8 S.85(ii) permits the Commonwealth when any department of the Public Service of a State is transferred to the Commonwealth to acquire any property of the State, of any kind used but not exclusively used in connexion with the department.
9 Mention should be made of the fact that the Commonwealth as a fully sovereign power, has the legal right within its constitutional limits to deal as it thinks fit with anything and everything within its territory. This “legal right ” would be extensive enough to incorporate what Grotiuscalled the right of “eminent domain ” i.e. the power of a sovereign State compulsorily to acquire the property of its subjects, although this right is limited morally, if not legally to acquisitions for “ends of public utility ” and should be subject to the duty to make good the loss to the dispossessed owner. The Commonwealth may also exercise executive power by operation of the doctrine of the royal prerogative, compulsorily to acquire the property of its subjects, though there would seem to be no evidence, in England at least, to show that the Crown's requisitioning powers were ever exercised without payment of compensation or that a claim to do so was ever made: see: Attorney-General v. De Keyser's Royal Hotel, Ltd [1920] A.C. 508; Burmah Oil Co. (Burma Trading) Ltd v. Lord Advocate [1964] 2 All E.R. 348; [1965] A.C. 75; Nissan v. Attorney-General [1967] 2 All E.R. 1238 (C.A.); [1969] 1 All E.R. 629 (H.L.); and Latham C.J.'s recognition of the Commonwealth's executive power in this respect in Johnston Fear and Kingham v. The Commonwealth (1943) 67 C.L.R. 314. In Tau's Case, there was of course no question relating to the exercise of the prerogative power or the right of eminent domain. The foregoing analysis merely shows the width of the acquisition powers of the Commonwealth and the limitations thereon.Op. cit.
10 (1965) 114 C.L.R. 226.Op. cit
11 Ibid.
12 Id., 246-247.
13 In this connection see also Menzies J. at 269-270; but his Honour's view is inconsistent with that of Dixon, C.J. in Lamshed v. Lake (1958) 99 C.L.R. 132Google Scholar.
14 (1965) 114 C.L.R. 226; per Barwick C.J. at 241, Kitto J. at 258, Taylor J. at 264, Menzies J. at 269-270, Windeyer J. at 273; and Owen J. at 280.
15 (1970) 44 A.L.J.R. 25, 26.
16 Menzies, J. in Spratt v. Hermes (1965) 114 C.L.R. 226Google Scholar, 270 also adhered to this view when his Honour said:
Moreover, it has to be remembered that s. 122 is not the only source of power to make laws for the government of the territories. A law of the Commonwealth made under s. 51 may operate within theterritories simply because they are parts of the Commonwealth.
17 Andrews v. Howell (1941) 65 C.L.R. 255, 282; Johnston Fear and Kingham v. The Commonwealth (1943) 67 C.L.R. 314; The Minister of State for the Army v. Dalziel (1944) 68 C.L.R. 261; Real Estate Institute of N.S.W. v. Blair (1946) 73 C.L.R. 213; P. J. Magennis Pty Ltd v. The Commonwealth (1949) 80 C.L.R.382; W. H. Blakely & Co. Pty Ltd v. The Commonwealth (1953) 87 C.L.R. 501, 521; Re Dohnert Muller Schmidt & Co. (1961) 35 A.L.J.R. 54.
18 (1970) 44 A.L.J.R. 25, 26.
19 See s. 51(vi) of the Constitution.
20 (1970) 44 A.L.J.R. 25, 26.
21 Ibid.
22 Barwick C.J. recognised this essential point in Spralt v. Hermes (1965) 114 C.L.R. 226, 246:
… it seems to me, with the utmost respect, to be an error to compart- mentalize the Constitution, merely because for drafting convenience it has been divided into chapters. No doubt on some occasions some assistance may be obtained from the place in the layout of the Constitution which a particular provision occupies when resolving ambiguities in language. But this does not call for disjoining a part of the Constitution from the rest.
23 Id., 242.
24 It is particularly significant to note that in Tau's Case the Court held that:While the Constitution must be read as a whole and as a consequence, s. 122 be subject to other appropriate provisions of it as, for example, s. 116 … ”(1970) 44 A.L.J.R. 25, 26.
25 Australian Federal Constitutional Law (1968) 357.
26 Or, for that matter, in any other chapter.
27 Spratt v. Hermes (1965) 114 C.L.R. 226, 245.
28 (1958) 99 C.L.R. 132, 142-143.
29 Id., 143.
30 Id., 143-144.
31 This contention has in fact once been decided by Bridge, J. in Kean v. The Commonwealth (1963) 5 F.L.R. 432Google Scholar, 439-440. At p. 439 he said: “ … I think that an exercise under the Constitution of legislative power given by s. 122 is conditional on the provision of ‘just terms’ as contemplated by s. 51 (xxxi). ”This statement may now be regarded as having been overruled by the High Court.
32 (1970) 44 A.L.J.R. 25, 2.
33 But in another passage, the Court conceded that s. 122 is subject at least to s. 116.
34 114 C.L.R. 226, 242 per Barwick C.J., per Windeyer J. at 277. 3599 C.L.R. 132, 145.
35 99 C.L.R. 132, 145. 3.
36 Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 C.L.R. 29, 85.
37 (1913) 16 C.L.R. 315.
38 (1915) 19 C.L.R. 629.
39 For example, in Buchanan's Case it was said that s. 55 of the Constitution had no application to a law made under s. 112, but that was so because s. 51(ii)—the taxation power—is concerned with the division of powers between the Commonwealth and the States and s. 55 was merely a limitation upon the power in s. 51(ii), and this is the ground that has been more recently accepted as the basis upon which that decision can be accepted: see Dixon, C.J. in Lamshed v. Lake, (1958) 99 C.L.R. 132Google Scholar, 142; Kitto, J. in Spratt v. Hermes, (1965) 114 C.L.R. 226Google Scholar, 252.
40 (1970) 44 A.L.J.R. 25, 25.
41 44 A.L.J. 49. See Zines, L., “‘Laws for the Government of any Territory’: Section 122 of the Constitution” (1966) 2 F.L.Rev. 72Google Scholar and Finlay, H. A., “The Dual Nature of the Territories Power of the Commonwealth” (1969) 43 A.L.J. 256Google Scholar. The Court also paid no regard to the opinion expressed by MrBridge, Justice in Kean v. The Commonwealth (1963) 5 F.L.R. 432Google Scholar.
42 Cf. L. Zines, op cit., at 93.