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Published online by Cambridge University Press: 24 January 2025
When Mr Cyril Worthing fell and suffered InjUrieS during his inspection of building work at the Richmond Air Force Base there was not only an alleged gap in the scaffolding but also a very significant gap in the law. For when he sued the defendant contractors for damages for breach of alleged statutory duty under the Scaffolding and Lifts Act, 1912-1965 of New South Wales, the High Court held in Worthing v. Rowell and Muston Pty Ltd and Others that the State scaffolding regulations, made after the Commonwealth's acquisition, did not apply in “places acquired by the Commonwealth for public purposes” within the meaning of section 52(i.) of the Constitution.
Section 52(i.) of the Constitution provides as follows:
52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to—
(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.
The views in this article are expressed as the personal views of the author, and are not necessarily those of the Department.
1 (1970) 44 A.L.J.R. 230 (Barwick C.J., Windeyer, Menzies and Walsh IJ.; dissenting judgments were delivered by McTieman, Kitto and Owen JJ.).
2 The West Australian, 11 July 1970,14.
3 44 A.LJ.R. 230, 235-236. See also at 243 per Menzies J., and at 247 per Windeyer J. (“… a short Commonwealth Act … providing that the laws of each State, from time to time in force should have full force and effect in all places already acquired, or acquired in the future, by the Commonhealth, which are within the geographical limits of that State, save in so far as any such State law is inconsistent with any Commonwealth law or is incompatible with the conduct by the Commonwealth of its lawful purposes carried on in any such place.”) .
4 Act No. 121 of 1970.
5 Commonwealth Gazette; 30 November 1970, 7941.
6 Commonwealth Places (Administration of Laws) Acts 1970.
7 (1970) 44 A.L.J.R. 497.
8 Western Australia alleged an offence contrary to section 184 of the Criminal Code Act, 1913 (W.A.) in Pearce Air Force Base, which was acquired by the Commonwealth in 1935.
9 (1970) 45 A.L.J.R. 9.
10 It is not proposed in this article to consider any possible constitutional objections to the validity of the provisions of the Act, but I shall deal with various constitutional problems that the Act was obviously designed to avoid.
11 44 A.L.J.R. 230.
12 44 A.L.J.R. 497.
13 45 A.L.J.R. 9.
14 Worthing, 44 A.L.J.R. 230, 244.
15 4S A.L.J.R. 9, 10, 14, 16, 19.
16 Id., 16.
17 The High Court in Phillips rejected arguments that Commonwealth places cease to be part of the State concerned. The defendant's argument turned on the nature of the Commonwealth's title to the land, but no mention was made in argument of Clause 13(3.) of the Financial Agreement, which recognizes that the Commonwealth can hold certain “freehold” titles under State law.
18 Section 4(9.)—see under heading (g) infra.
19 44 A.L.J.R. 230, 235, 243.
20 44 A.L.J.R. 499-500, 505 respectively.
21 Worthing, 44 A.L.J.R. 230, 250 per Walsh J.
22 Infra and see also the Excursus to this article.
23 44 A.L.J.R. 497.
24 Id. 508, 512 per Walsh and Gibbs JJ. respectively.
25 Constitution, sections 69 and 85(i).
26 Constitution, s. 109:
109. When a law of a State is inconsistent with a law of the Common-wealth, the latter shall prevail, and the fonner shall, to the extent of the inconsistency, be invalid.
27 Hansard, House of Representatives, 27 October 1970, p. 2801.
28 (1953) 87 C.L.R. 144. There is also the problem of State laws conferring judicial power on bodies that are not “courts”.
29 55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect….
30 Attorney-General of the Cbmmonwealth v. Schmidt (1961) C.L.R. 361, 311-372.
31 Constitution s. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.
32 Morgan v. The Commonwealth (1947) 74 C.L.R. 421, 455. Cf. Wynes, W. A., Legislative, Executive and Judicial Powers in Australia (4th ed. 1970), 236-237Google Scholar.
33 Cf. C.S.R.v. Irving [1906] A.C. 360.
34 Queen Victoria Memorial Hospital v. Thornton (1953) 87 C.L.R. 144.
35 Boilermakers' case (1957) 95 C.L.R. 529.
36 44 A.L.J.R. 497.
37 (1919) 26 C.L.R. 305.
38 [1924] V.L.R. 276. See Lorenzo v. Carey (1921) 29 C.L.R. 243, 252; generally, Wynes, op. cit. 413.
39 Felton v. Mulligan (heard by High Court 16-18 March 1971).
40 The Queen v. Clalverie [1970] 92 W.N. (N.S.W.) 301.
41 Appeals lie as provided under State law: see section 12 and section 8(6.); compare Seaegg v. The King (1932) 48 C.L.R. 251; see also, in relation to section 12, Williams v. The King (No. 1) (1933) 50 C.L.R. 536, and Williams v. The King (No. 2) (1933) 50 C.L.R. 551.
42 If the court is a Supreme Court, section 8(4.) prevents the removal of the cause into the High Court.
43 Section 73 provides that “[t]he High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences” of the courts referred to in that section.
44 Cockle v. Isaksen (1958) 99 C.L.R. 155.
45 See supra, n. 42.
46 [1924] V.L.R. 276; supra n. 38.
47 Supra, n. 39.
48 On double causes of action see section 9 of the Commonwealth Act and section 6 of the State Acts.
49 45 A.L.J.R. 9.
50 Supra, n. 15.
51 See now section 14(2) of the State Acts.
52 4S A.L.J.R. 9, 19.
53 Id., 16.
54 Id., 10, 16, 19 per Barwick C.J., Windeyer and Walsh JJ. respectively.
55 Loc. cit.
56 Supra, n. 20.
57 45 A.L.J.R. 9, 19.
58 45 A.L.J.R. 9, 10, 14, 16.
59 45 A.L.J.R. 9, 19.
60 44 A.L.J.R. 497.
61 E.g., Stocks and Holdings 45 A.L.J.R. 9, 14 per Menzies J.; Worthing 44 A.L.J.R. 230, 250 per Walsh J.
62 Section 19(1.); cf: Acts Interpretation Act 1901-1966 (Commonwealth),section 8.
63 Section 14(3).
64 44 A.L.J.R. 497.
65 Section 19(2.) and section 14( 1) respectively.
66 Commonwealth Gazette, 13 May 1971, 2906.
67 It was announced on 16 October 1970 that the State Attorneys-General were at tha.t stage unanimously of the view that the most effective solution would be an amendment to the Constitutionu : The Canberra Times 16 October 1970, 3.
1 (1970) 44 A.L.J.R. 230.
2 (1970) 44 A.L.J.R. 497.
3 Phillips, 44 A.L.J.R. 491, 501 per Barwick: C.J
4 Quick and Garran, Annotated Constitution of the Australian Commonwealth, 938; Harrison Moore, Constitution of the Commonwealth of Australia, 412; Inglis Clark, Australian Constitutional Law, 94; Phillips, 44 A.L.J.R. 497.500, 505-506, 512-513 per Barwick C.J., Windeyer and Gibbs JJ.; Worthing, 44 A.L.J.R. 230, 238, 246, per Kitto and Windeyer JJ. Only Menzies J. bas expressed a contrary view: Phillips, 44 A.L.J.R. 491, 502, in support of which consider, for example, State laws for maintaining military forces pending their transfer to the Commonwealth, but compare Quick and Garran, op. cit. 949.
5 (1901) 1 S.R. (N.S.W.) 337.
6 Ibid.
7 44 A.L.J.R. 497.
8 Supra, n. 4. Colonial laws on matters within the exclusive power of the Commonwealth would seem to include laws for coining money bythe colonies (Constitution, section 115), presumably as distinct from laws with respect to the coining of money by other authorities (e.g. Sydney Mint Act, 1902 of New South Wales); laws making anything but gold or silver legal tender.. for payment of debts (there was no such colonial legislation); and laws for raising or maintaining a colonial naval or military force (section 114).
9 E.g., 44 A.L.J.R. 497, S03 per Barwick C.I.
10 Consider, forexantple, section 116 of the Constitution and section 26 of the Roman Catholic Relief Act (Imp.) (10 Geo. IV, c. 7) adopted by 10 Geo. IV No. 9 (N.S.W.), prohibiting Roman Catholic ceremonies outside usual places of worship.