Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Constitutional law -- whether damages flow from a constitutional breach
Commonwealth Constitution -- Validity of the Aboriginals Ordinance 1918 (NT)
Commonwealth Constitution -- Territories power -- Whether s. 122 limited by express or implied constitutional freedoms or limitations -- Whether judicial power separated in a Territory -- Whether separation of judicial power infringed by a law authorising involuntary "welfare" detention without a Court order
Commonwealth Constitution -- Whether limited by implied guarantees of legal equality or freedom from genocide
Commonwealth Constitution -- Freedom of exercise of religion -- Whether s. 116 infringed by a law with a "welfare" purpose
Commonwealth Constitution -- Implied freedom of political speech -- Whether includes freedoms of movement or association
Limitation of actions -- Whether Limitation Act 1981 (NT) applied to claims against the Commonwealth by Judiciary Act 1903 (Cth)
Observations on possible future actions relating to the conduct of officials acting beyond the powers conferred on them by the Ordinance.
The plaintiffs were people removed from their Aboriginal families as children, and an Aboriginal mother whose child was removed, under the Aboriginals Ordinance 1918 (NT). The Ordinance -- promulgated by the Governor-General under the Northern Territory Acceptance Act 1910 (Cth) and Northern Territory (Administration) Act 1910 (Cth) -- was repealed by the Welfare Ordinance 1953 (NT). It conferred on the Chief Protector of Aboriginals (later the Director of Native Affairs) the legal guardianship of "every aboriginal and ... half-caste child" under 18 (s. 7) and powers to remove those children into his custody if "in their interests" to do so (s. 6). The Chief Protector was also given powers to intern Aboriginal people in reserves and institutions (s. 16). Regulations under the Ordinance allowed local Protectors discretion to "forward" Aboriginal children to schools or institutions. No judicial hearing was required before these powers to detain could be exercised.
No factual findings had been made regarding the impact of the Ordinance on the plaintiffs, although the plaintiffs sought to place before the Court some documentary material relating to the Commonwealth's purposes in promulgating the Ordinance, including reports and correspondence by officials charged with its administration.
Held:
Validity of the Ordinance
(per Brennan CJ, Dawson, McHugh and Gummow JJ; Gaudron J dissenting): The Ordinance was valid.
(per Toohey J): Whether or not the Ordinance was valid may depend on matters of evidence not before the Court.
(per Brennan CJ and Toohey J; Dawson and McHugh JJ not deciding; Gummow J inclined to agree with Brennan CJ and Toohey J): The Constitution creates no private rights enforceable directly by an action for damages. Even if the plaintiffs could establish the unconstitutionality of the Ordinance, that alone would not entitle them to compensation.
(per Gaudron J): Breach of s. 116 Constitution or the implied guarantee of political communication does not found an action in damages.
(per the Court): Section 122 Constitution, the Territories power, is a broad plenary power authorising the making of the Ordinance.
(per Dawson, Toohey and McHugh JJ): Laws made under s. 122 are not limited by considerations of purpose or proportionality.
(Obiter dicta per Gaudron J): Laws with a national purpose may not be s. 122 laws.
(per Brennan CJ, Dawson and McHugh JJ; Gaudron and Toohey JJ contra; Gummow J inclined to agree with Toohey and Gaudron JJ): Section 122 Constitution is not limited by implied limitations found elsewhere in the Constitution.
(per Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ; Toohey J contra): Section 122 is not limited by implications arising from the separation of judicial power in Chapter III Constitution.
(per Gummow J): The conclusion that s. 122 is not limited by Chapter III is dictated by the state of the authorities. The conclusion that s. 122 is so limited is the preferable interpretation.
(per Gaudron J): Section 122 is not subject to an implied right of due process.
(per McHugh J; Gaudron and Toohey JJ contra): Any implied political freedom of movement or association cannot apply in a Territory, in part because the Constitution does not guarantee Territorians the right to vote in Commonwealth elections.
(per Toohey, Gaudron and Gummow JJ; Brennan CJ not deciding; Dawson and McHugh JJ contra): Section 122 Constitution is limited by s. 116 Constitution (freedom of religion).
(per Dawson, Toohey, Gaudron, McHugh and Gummow JJ): The removal of children under the Ordinance did not involve "punitive detention" of a kind requiring judicial authorisation.
(per Toohey and Gummow JJ): Whether or not a detention falls within an exception to the rule that the power to order involuntary detention is an incident of judicial power depends on the purpose of the legislation judged by the values and standards of the time.
(Obiter dicta per Gaudron J): It may be that a law authorising involuntary detention is beyond the power conferred by s. 51(xxvi) Constitution, the "race" power.
(per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ): Section 116 Constitution requires an infringing law to disclose a purpose of prohibiting Aboriginal religion. No such purpose was evident from the language of the Ordinance.
(per Toohey and Gaudron JJ): A law infringing s. 116 may have more than one purpose.
(per Toohey, Gaudron and Gummow JJ): Factual material before the Court could not be relied on to show that a purpose of the Ordinance was the prohibition of Aboriginal religion.
(per Gaudron J): Section 116 extends to laws which prevent the free exercise of religion. The Ordinance's purpose should be determined by reference to the conditions of the time. If the Ordinance prohibited the free exercise of Aboriginal religion, the Commonwealth would need to demonstrate that it was necessary, not simply adapted, to the overriding public purpose of Aboriginal welfare.
(per Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ; Toohey J contra): The Constitution contains no implied guarantee of substantive legal equality. The Constitution was and is in many respects inconsistent with such a guarantee.
(per Toohey J): Whether or not the Ordinance infringed the guarantee depends on considerations of reasonable proportionality between the discrimination it embodied and the community standards of the time as to what was a rational and relevant basis for discriminatory treatment of "Aboriginal or half-caste" people. Those standards are a matter of evidence not before the Court.
(Obiter dicta: per Gaudron J; Dawson J contra): The "race" power, Constitution s. 51(xxvi), may allow the Commonwealth Parliament to make laws for the benefit of Aboriginal and Torres Strait Islander people only.
(per Brennan CJ, Dawson J) Toohey, McHugh and Gaudron JJ contra; Gummow J doubting existence of the freedom): The Constitution contains no implied freedom of movement or association.
(per McHugh and Gaudron JJ): Freedoms of movement and association are part of the implied freedom of political communication based on representative government.
(per Gaudron J): A law will infringe the freedom if its purpose is to restrict or prohibit movement or association and it is not necessary for attainment of some overriding public purpose. The Ordinance restricted Aboriginal freedom of movement and association. The Commonwealth maintained that the Ordinance was appropriate and adapted to the public purpose of Aboriginal welfare, but not that the Ordinance was necessary for that purpose. Therefore the provisions of the Ordinance infringing the freedom were invalid.
(per Toohey J): Whether or not the freedom is infringed depends on whether the Ordinance was appropriate and adapted to a legitimate purpose, Aboriginal welfare, as defined by the values and standards of the time. The Court cannot determine whether the freedom is infringed in the absence of evidence of those past community standards.
(per Gummow J): If a freedom of movement existed, the Ordinance would be read so as to be consistent with it.
(per Dawson, Toohey, McHugh and Gummow JJ): The Constitution contains no implied freedom from genocide. The Genocide Convention post-dates the Ordinance and has never been part of Australian law.
(per Gaudron J): It may be that s. 122 does not confer power to enact laws which permit genocide.
(per Dawson, Toohey, Gaudron, McHugh and Gummow JJ): The removal of children did not constitute genocide under the Convention or pre-existing international law. Genocide requires an intent to destroy a racial group.
(per Dawson, Toohey and Gummow JJ): The intention underlying the Ordinance was that of preserving the welfare of Aboriginal people.
Limitation of actions
(per Gaudron J): The substantive law to be applied in this case is the law of the Northern Territory, as required by the choice of law rules of the Australian Capital Territory (where the matter was heard), which are "picked up" by s. 79 Judiciary Act 1903 (Cth). Section 79 also "picks up" s. 56 Limitation Act 1985 (ACT), which treats NT limitation law as part of NT substantive law. Thus the Limitation Act 1981 (NT) applies to these proceedings.
(per Toohey J): The plaintiffs are free to challenge as ultra vires particular exercises of power under the Ordinance.
Brennan CJ
... The plaintiffs seek, inter alia, a declaration that the provisions of the Ordinances of the Northern Territory under which th[e] alleged actions were taken were invalid and that the Acts of the Commonwealth under which those provisions were enacted were invalid in so far as they might be found to have authorised the impugned provisions of the Ordinances.
The relevant provisions are to be found in s. 67 of the Aboriginals Ordinance 1918 (NT) ("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 Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act"). The Ordinance was amended from time to time by the Governor-General pursuant to the same statutory powers or, in one instance, pursuant to powers conferred by the Northern Australia Act 1926 (Cth).
... 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 provided:
"6. (1) The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.
(2) Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.
(3) The powers of the Chief Protector under this section may be exercised whether the aboriginal or half-caste is under a contract of employment or not.
7. (1) The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of the Act of the State of South Australia in force in the Northern Territory entitled The State Children Act 1895, or any Act of that State or Ordinance amending or substituted for that Act.
(2) Every Protector shall, within his district, be the local guardian of every such child within his district, and as such shall have and may exercise such powers and duties as are prescribed."
The Chief Protector and Protectors of Aboriginals were appointed under the Ordinance. After an amendment of the Ordinance in 1939, the Director of Native Affairs became the successor in function to the Chief Protector. ...
Section 16 reads:
"16.(1) The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.
(2) Any aboriginal or half-caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance.
(3) Sub-section (1) of this section shall not apply to any aboriginal or half-caste
(a) who is lawfully employed by any person; or
(b) 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 husband who is substantially of European origin or descent; or
(d) for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made.
67. (1) The Administrator may make regulations, not inconsistent with this Ordinance, prescribing all matters and things which by this Ordinance are required or permitted to be prescribed, or which may be necessary or convenient 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) providing for the control, care and education of Aboriginals or half-castes in aboriginal institutions and for the supervision of such institutions;
(e) providing for the control and prevention of communicable diseases amongst Aboriginals or half-castes;
(f) prescribing 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 "removal 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 aboriginal institution or school, reporting the reason for such action to the Chief Protector" or, from 17 October 1940, to the Director.
Sections 6 and 16 are the principal provisions of the Ordinance which are 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, are hereafter referred to collectively as "the plaintiff children". Section 6 conferred on the Chief Protector a power "to undertake the care, custody, or control" 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 half-caste for him to do so". This is a power which in terms is conferred to serve the interests of those whose care, custody or control might be undertaken. It is not a power to be exercised adversely to those individual interests. And, as s. 67 required the regulations made thereunder to be "for the effectual carrying out" of the Ordinance, a valid exercise of the powers conferred by the removal regulations would have to be intended to serve the interests of the "Aboriginals and half-castes" to whom those regulations applied in any case in which the power was being exercised in performance of the function of care, custody or control. The several paragraphs of s. 67 indicate that the regulations are to facilitate the serving of the interests of the "Aboriginals and half-castes" to whom the regulations might be applied. ...
The practice of enforced separations is now seen to be unacceptable as a general policy. However, the erroneous formation 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. Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention. ...
Sections 6 and 7 of the Ordinance and the removal regulations, so far as those regulations effectually carry out ss. 6 and 7, were laws which were calculated to advance the interests of the "Aboriginals and half-castes" of the Northern Territory. ... Section 16 is a provision of a different kind. On its face, it is not simply intended to serve the interests of the persons over whom the power might be exercised. ...
... The amended statements of claim advanced reasons for alleging the
invalidity of the Ordinance and in particular
ss. 6 and 16 and, in so far
as it purported to confer power to make or amend the removal regulations, s.
67. The reasons were stated
in six sub-paragraphs of a paragraph drawn in
identical terms in the amended statements of claim in each of the two
actions:
"(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 the 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 to confer judicial power of the Commonwealth
(1) on persons who were not appointed under or obliged or entitled to exercise the judicial power of the Commonwealth in accordance with Ch III of the Constitution or judicial power under laws of the Commonwealth;
(2) other than on Courts established under or in accordance with Ch III of the Constitution or under laws 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 , and in particular, laws of the Commonwealth and laws made pursuant to or under the authority of laws of the Commonwealth;
(iii) it was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association;
(iv) it was contrary to an implied constitutional right to freedom from and/or immunity from any law, purported law or executive act:
A. providing for or having 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 ethnic group, solely by reason of their 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 authorising:
(i) the removal and transfer of children of a racial or ethnic group in a manner which was calculated to 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 infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part;
(v) the Aboriginals Ordinance, and, insofar as they purported to authorise the enactment or amendment of the Aboriginals Ordinance or provisions thereof, the Administration Act, the Acceptance Act and the Northern Australia Act, were not laws for the government of the Northern Territory.
(vi) it was a law for prohibiting the free exercise of a religion contrary to s. 116 of the Constitution."
The factual issues in these actions have not been tried but, for reasons which I have earlier given, I reserved certain questions of law arising on the pleadings in each of the cases for the opinion of the Full Court. In each case, the first of those questions was in the following terms:
"1. Is the legislative power conferred by s. 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in para. 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"
... If the impugned laws authorised the keeping of a plaintiff child in Aboriginal institutions or reserves "in the interests" of the child or for some other legitimate purpose under s. 16, they did not thereby authorise an intentional or purposeful infliction of mental harm. In retrospect, many would say that the risk of a child 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 implemented, but the existence of that risk did not deny the legislative power to make the laws which permitted the implementation of that policy. ...
[Section 116 Free Exercise of Religion]
Similarly, 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-para. (vi). To attract invalidity under s. 116, a law must have the purpose of achieving an object s. 116 forbids. None of the impugned laws has such a purpose. That leaves for consideration the questions whether s. 122 would support the impugned laws (sub-para. (v)) and whether the scope of s. 122 is limited by restrictions arising from the terms or structure of the Constitution affecting the judicial power of the Commonwealth (sub-para. (i)), equality under the law (sub-para. (ii)), or freedom of movement and association (sub-para. (iii)).
[Scope of Section 122 of the Constitution]
...
... 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 argument that all laws of the Commonwealth must accord substantive equality to all people irrespective of race. In any event, there is nothing in the text or structure of the Constitution which purports so to restrict the power conferred by s. 122 as to require substantive equality in the treatment of all persons within the territory. Indeed, prior to 1967, s. 127 of the Constitution expressly discriminated against "aboriginal natives" in the taking of the census. The ground advanced by the plaintiffs in sub-para. (ii) also fails.
... No such right 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 about 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 child could not be attacked on the ground that the interests of the child infringed an implied freedom of 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 effect of impeding the freedom of communications about 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 the impugned provision would be construed conformally with the constitutional requirement. 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-para. (iii) is to be found in the Constitution, its existence would not have invalidated any of the provisions impugned by the plaintiffs.
... [Q]uestion 2 was stated in the following terms:
"Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by --
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"
The Constitution creates no private rights enforceable directly by an action for damages. ... [It] reveals no intention to create a private right of action for damages for an attempt to exceed the powers it confers or to ignore the restraints it imposes. The causes of action enforceable by awards of damages are created by the common law (including for this purpose the doctrines of equity) supplemented by statutes which reveal an intention to create such a cause of action for breach of its provisions. ... [I]f if a government does or omits to do something the doing or omission of which attracts no liability under the general law, no liability in damages 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 tort or for breach of contract arises by reason of any breach of the protections claimed by the plaintiffs in the paragraphs of the respective amended statements of claim referred to in question 2. That question must be answered: No.
...
As the remaining questions are posited on the condition that an affirmative answer is given to question 2 or, in the case of question 3, an affirmative answer to question 1 or 2, no answer to the remaining questions is required.
Dawson J
... The measures contemplated by the legislation of which the plaintiffs complain would appear to have been ill-advised or mistaken, particularly by contemporary standards. However, a shift in view upon the justice or morality of those measures taken under an Ordinance which was repealed over 40 years ago does not of itself point to the constitutional invalidity of that legislation. ...
Section 122
...
Section 116 -- Free Exercise of Religion
... Various views have been expressed about the character of s. 116 and its application to the legislative power of the Commonwealth under s. 122. However, there has been no real examination of the question or any attempt to reconcile the existing authorities, save perhaps in the judgment of Gibbs J in Attorney-General (Vic); Ex rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 593-594. Gibbs J expressed his doubts, notwithstanding dicta to the contrary, whether s. 116 had any application to laws made under s. 122. He pointed out that the dicta are very difficult to reconcile with the decision in R v Bernasconi and that if s. 122 is limited by s. 116, the latter section will have a much larger operation in the territories than in the States since s. 116 is not expressed to bind the States.
In R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629, it was held that s. 80 of the Constitution, which requires the trial on indictment of any offence against "any law of the Commonwealth" to be by jury, does not restrict the power of the Commonwealth to make laws under s. 122. Section 80 is to be found in ch. III of the Constitution dealing with "The Judicature". ...
R v Bernasconi, supra, was not overruled in Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 at 142, 143, nor in any other decision of this Court. Its reasoning is plainly inconsistent with a great deal that was said in Lamshed v Lake, supra but there is much that is open to doubt in the latter decision as was recognised by Kitto J in Spratt v Hermes, [1965] HCA 66; (1965) 114 CLR 226. There is even more that is open to doubt in Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492. Section 80 imposes a requirement upon the Commonwealth in what would appear to be absolute terms, as does s. 116. Section 80 appears in ch. III in general terms. Section 116 appears in ch. V which, at least by its heading, is confined in its application to the States. In my opinion, what was said of s. 80 in R v Bernasconi, applies a fortiori to s. 116. I do not think that it is possible while R v Bernasconi, stands to hold that s. 116 restricts s. 122. Nor do I think that the reasoning in Lamshed v Lake is necessarily to be preferred to that in R v Bernasconi. ...
I am of the opinion that the power of the Commonwealth Parliament to legislate under s. 122 for the government of the territories 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 would enable it to be said that it is a law for prohibiting the free exercise of any religion.
...
... [I]n asserting a guarantee of equality before and under the law ... [t]he plaintiffs encounter difficulty at the outset by reason of the decision of this Court in Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455. In that case, a majority (Mason CJ, Brennan J, McHugh J and myself) held that a law of the Commonwealth which did not operate uniformly throughout the Commonwealth was not in breach of any constitutional requirement. ...
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 now commend itself to me. ... Deane and Toohey JJ recognised in Leeth, supra at 489 that "the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorised by the relevant provision of the Constitution or may need to be "adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate. To recognise as much is surely to undermine any basis for asserting that the Constitution assumes a doctrine of equality.
Not only that, but where the Constitution requires equality it does not leave it to implication. It makes provision for it by prohibiting discrimination, preference or lack of uniformity in specific instances. For example, the power of the Commonwealth Parliament to make laws with respect to taxation conferred by s. 51 (ii) must not be exercised so as to discriminate between States or parts of States. Section 88 provides for uniform customs duties and s. 51 (iii) provides for uniform bounties. ...
The ultimate source of the doctrine was said to lie in the common law. ... However, whilst the rule of law requires the law to be applied to all without reference to rank or status, the plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-discriminatory, operation of laws. ...
[T]he Constitution to which the people agreed plainly envisages inequality in the operation of laws made under it. Moreover, those who framed the Constitution deliberately 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. ... Not only does a doctrine of equality in the operation of laws made under the Constitution not appear from the Constitution, but the very basis upon which it was drafted was that matters such as that were better left to parliament and the democratic process.
... Chapter III contains no warrant for regarding a law as invalid because the substantive rights which it confers or the substantive obligations which it imposes are conferred or imposed in an unequal fashion. ...
For these reasons, ... I would affirm the proposition contained in the judgment of Mason CJ, McHugh J and myself in Leeth that there is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth.
... The freedom of communication protected by the Constitution relevantly arises from the system of representative government for which the Constitution specifically provides. ...
No system of government, elected or otherwise, is prescribed for the territories. Sovereign legislative power is conferred by s. 122 upon the 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 of representative government exist within the territories. There is nothing to be found in the Constitution which would support an implied constitutional right to, 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.
... The Genocide Convention Act 1949 (Cth) gave parliamentary approval to the ratification by Australia of the Genocide Convention, but there is no legislation implementing 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 acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."
The first thing that may be said is there is nothing in the 1918 Ordinance, even if the acts authorised by it otherwise fell within the definition of genocide, which authorises acts committed with intent to destroy in whole or in part any Aboriginal group. On the contrary, as has already been observed, the powers conferred by the 1918 Ordinance were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally. The acts authorised do 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 for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 275 at 286-287, 298, 304, 315 it is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute ... . However, because of a presumption that the legislature intends to give effect to Australia's obligations under international law, where a statute or subordinate legislation is ambiguous it should be construed in accordance with those obligations, particularly where they are undertaken in a treaty to which Australia is a party. Such a construction is not, however, required by the presumption where the obligations arise only under a treaty and the legislation in question was enacted before the treaty, as is the situation in the present case.
On the other hand, there is another principle that legislation is to be interpreted and applied, so far as its language admits, in accordance with established rules of international law. It was suggested in Teoh that perhaps the two principles should be merged so as to require courts to favour 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 obligations are under a treaty which had not been entered into at the time the legislation came into force.
Presumably for this reason, the plaintiffs rely principally upon a pre-existing rule of 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 conceive of any acceptable definition of genocide which would embrace the actions authorised by the 1918 Ordinance, given that they were required to be performed in the best interests of the Aboriginals concerned or of the Aboriginal population. But more importantly, 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 genocide would yield no different result from reading those provisions, as Fullagar J did in Waters v The Commonwealth [1951] HCA 9; (1951) 82 CLR 188 at 194-195 in their particular context. It certainly would not invalidate those provisions of the 1918 Ordinance which purportedly authorised the acts of which the plaintiffs complain.
... As I have said, in my view nothing which appears in the 1918 Ordinance confers authority to commit acts of genocide within the meaning of the 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, but whatever the form of genocide which the plaintiffs assert was authorised by the 1918 Ordinance, it cannot be said that the provisions of 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 to destroy them. ...
That question was, however, raised in Kable v DPP (NSW) [1996] HCA 24; (1996) 70 ALJR 814; 138 ALR 577, and there I expressed the view that the doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law and that it is of its essence that a court, once it has ascertained the true scope and effect of valid legislation, should give unquestioned effect to it accordingly ... .
The power of the Commonwealth Parliament under s. 122 of the Constitution is, if anything, wider than its power to 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, but it is, unlike the parliament's power under s. 51, unlimited in terms of subject matter. In that sense, the legislative power of the parliament to make laws for the government of the territories 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 description beyond its reach. Accordingly, this aspect of the plaintiffs' claim must fail.
For all of these reasons, I would answer the first question in each case in the negative. Since my conclusion is that the Constitution does not afford the rights upon which the plaintiffs base their claims, it is unnecessary to answer the second question, which asks whether a breach of any such rights would give rise to a right of action against the Commonwealth sounding in damages. It is unnecessary to answer the other questions.
Toohey J
... The ... legislative history ... lends force to the submission that the Ordinance was seen at the time as serving a welfare purpose. While the means adopted to achieve such a purpose would now be regarded as entirely unacceptable, there is a question as to how far any assessment can be divorced from the perceptions of the time. ...
It must again be stressed that it is the validity of the Ordinance the plaintiffs challenge and which is the basis of their claim for damages, not the exercise of power under an enactment accepted as valid ... .
But in these proceedings it is not abuse of power upon which the plaintiffs rely ... .
...
...
... There are statements in several decisions of the Court in support of the proposition that s. 116 is applicable to an exercise of power under s. 122. ...
Section 116 "is directed to the making of law. It is not dealing with the administration of a law". The use of the word "for" indicates that "the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character". ... It does not follow that there is only one purpose to be discerned in a law; there may be more than one. ... It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, though this is something that could only be demonstrated by evidence. But I am unable to discern in the language of the Ordinance such a purpose.
... The possibility of sustaining the claim by reference to extrinsic material does not warrant giving a qualified answer to so much of Question 1 as is relevant to this head of the plaintiffs' claim. As the matter has come before the Court, the claim under "free exercise of religion" must fail and the question answered accordingly.
... The Genocide Convention was not ratified by Australia until 8 July 1949 and
did not enter into force until
12 January 1951, more than 30 years after
the Ordinance was enacted. The provisions of the Genocide Convention do not
form part of
Australian municipal law since they have not been incorporated by
statute. 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 construction of a statute or subordinate
legislation which is
ambiguous.
No doubt because of the relationship in time between the Ordinance and the ratification of the Genocide Convention, the plaintiffs also argued that the latter reflected a norm of international law and that the Ordinance should be construed on the footing that s. 122 was not intended to confer power to make a law authorising acts in conflict with that norm.
On its face the relevant paragraph of each statement of claim gives rise to difficult questions of implied constitutional freedoms and immunities. But because of the way in which this part of the claim was argued, the focus must be on Art. II of the Genocide Convention in which, relevantly, genocide is defined inter alia to mean
"any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such: ...
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children 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 Ordinance, according to it the ordinary principles of construction, which would justify a conclusion that it authorised acts "with intent to destroy, in whole or in part" the plaintiffs' racial group.
... [I]t is necessary to keep 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.
... The plaintiffs identify a freedom of movement and association "for political, cultural and familial purposes". Although their argument was directed to these broad purposes, its focus was on the prohibition of or restrictions on political communication. That is not surprising, given the recent trend of authority 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 ... .
To speak of political communication is in some ways to understate the true nature of the freedom which it entails. As Mason CJ commented in Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 139:
Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community."
... In Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104 at 124 Mason CJ, Toohey and Gaudron JJ adopted the observation of Barendt that `political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about".
Nothing said in Lange v Australian Broadcasting Commission, (unreported High Court of Australia, 8 July 1997) at 16 diminishes the scope of the implied freedom as I have identified it; rather the decision reinforces it. Certainly Lange endorsed what had been said in earlier decisions, namely, that the freedom of communication which the Constitution protects is not absolute. "It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution." ...
I agree with Gaudron J that in order for 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 matters relevant to their government and to discuss those matters amongst themselves ... .
Comment and discussion by all those who are governed is essential for the people to make an informed choice as electors. ...
For these reasons it is no answer 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 Territory 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 flow in that way. Similarly, the freedom does not turn upon the electoral status of individuals. ...
Although the plaintiffs assert a "right of association", in truth they claim a limitation on legislative power to restrict the freedom of association which 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 Commonwealth's alternative defence that
"(I) the Aboriginals 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 the Aboriginals Ordinance was capable of being reasonably considered to be or alternatively was appropriate and adapted to the achievement of that purpose".
... Whether the inquiry is in the terms as I have just expressed it, or whether it be in terms of reasonably appropriate and adapted to serve a legitimate end it is relevant to consider the standards and perceptions prevailing at the time of the Ordinance. That is not to say that those standards and perceptions necessarily conclude the matter; the infringement of a relevant freedom may be so fundamental that justification cannot be found in the views of the time. But the Ordinance does have a welfare character and questions of proportionality and adaptedness cannot exclude the prevailing perceptions. ... [I]n my view, the manner in which these issues come before 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 restricted by the freedom of movement and association implied in the Constitution, it is not possible to say at this stage of the proceedings that the impugned provisions of the Ordinance are necessarily invalid on that account ... .
If any of the provisions of the Ordinance were held invalid, it does 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 breach of contract. The implied limitation operates as a restriction on legislative power, not as grounding a cause of action. It means that, in response to any common law claim for trespass or false imprisonment, the authority conferred by the Ordinance to take Aboriginals into custody must yield to the freedom of association implied by the Constitution.
In Leeth v The Commonwealth, supra, Deane J and I spoke of a doctrine of legal equality, having two distinct but related aspects.
The first is the subjection of all persons to the law. The second, that upon which the plaintiffs relied to impugn provisions of the Ordinance, involves the underlying or theoretical equality of all persons under the law and before the courts. In Leeth, supra, we concluded, for the reasons there given, that while the Constitution did not spell out such a doctrine in express words, it adopted it as a matter of necessary implication. Those reasons included "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 ...
[T]here is nothing in the Constitution which excludes Aboriginals from citizenship. Their exclusion from citizenship rights, in particular voting rights, was the result of legislation. ... 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 between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment...
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.
The preamble to the Constitution recites that "the people ... have agreed to unite in one indissoluble Federal Commonwealth." 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". [T]he equality derives from the very existence of a Constitution brought into existence by the will of the people, save to the extent that the Constitution itself permits discriminatory treatment in the sense discussed in these reasons.
[F]or the reasons advanced earlier in this judgment, the Ordinance must be assessed by reference to what was reasonably capable of being seen by the legislature at the time as a rational and relevant means of protecting Aboriginal people against the inroads of European settlement. That is a matter of evidence. It cannot be determined by reference to the pleadings. Hence the answer to this component of the question can only be a qualified one.
Again, if by reason of the application of this doctrine of legal equality any of the impugned provisions were held invalid, this would serve to meet a defence founded on the Ordinance to a common law claim for trespass or false imprisonment.
...
...
Gaudron J
...
...
... The notion of genocide embodied in the definition in Art. II of the Genocide Convention is so fundamentally repugnant to basic human rights acknowledged by the common law that, by reason of well settled principles of statutory interpretation, an intention to authorise acts falling within that definition needs to be clear beyond doubt before a legislative provision can be construed as having that effect. Ordinarily, however, different considerations apply to the interpretation of constitutional documents.
It is settled doctrine that a constitutional grant of power is to be "construed with all the generality which the words used admit". Moreover because of the democratic principles enshrined in the Constitution, constitutional powers are not to be read down to prevent the possibility of abuse. At least that is so in relation to the powers conferred by s. 51 of the Constitution ... .
If territories are put to one side, it may be reasonable to say, as was said by Professor Harrison Moore [2] and as has often been [3] that, under the Australian Constitution, "the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power". However, the Constitution ensures no share in political power to the people of a territory. They have no constitutional right to participate in elections for either House of Parliament; they have no constitutional right to self-government. ...
I would consider it much the better view that s. 122 is to be construed in light of the fact that, unlike other Australians, persons 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 consider that that approach requires that s. 122 should be construed on the basis that it was not intended to extend to laws authorising gross 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 Ch. III. Nor do I think it correct to say that, either because s. 122 confers power of a different order from that conferred by s. 51 or because it is not made subject to the Constitution, it is not subject to any of the express or implied constitutional limitations which confine the legislative power conferred by s. 51. However, if either of those propositions is, to any extent, correct that is an additional reason for construing s. 122 on the basis that it does 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 does not confer power to pass laws authorising acts of genocide as defined in Art. II of the Genocide Convention. The acts encompassed in that definition are so fundamentally 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 extending to laws of that kind. However, the question whether s. 122 is so confined does not and cannot arise in this case.
... [T]he settled principles of statutory construction ... compel the conclusion that [the Ordinance] did not authorise 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 acts 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 destroying the plaintiffs' racial group, they may be the subject of an action for damages whether or not the Ordinance was valid.
...
... In Leeth, supra at 502-503 I expressed the view, to which I still adhere, that Ch. III operates to preclude the conferral on courts of discretionary powers which are conditioned in such a way that they must be exercised in a discriminatory manner. If that view is correct, there is a limited constitutional guarantee of equality before the courts, not an immunity from discriminatory laws which, in essence, is what is involved in the argument that there is an implied constitutional guarantee of equality.
... Quite apart from the discriminatory provisions of s. 127, the Constitutional provisions which sanction and those which operate to prevent discriminatory laws so combine, in my view, that there is no room for any implication of a constitutional right of equality beyond that deriving from Ch. III. That deriving from Ch. III has no bearing on the validity of the Ordinance. It follows that the Ordinance was not invalid by reason that it was contrary to an implied constitutional right to or guarantee of equality.
... It is clear, and it has been so held, that the fundamental elements of the system of government mandated by the Constitution require that there be freedom of political communication between citizens and their elected representatives and also between citizen and citizen ... .
Modern means of communication notwithstanding, freedom of political communication between citizen and citizen and between citizens and their elected representatives entails, at the very least, freedom on the part of citizens to associate with those who wish to communicate information and ideas with respect to political matters and those who wish to listen ... .
Again 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 Smithers; Ex parte Benson [1912] HCA 92; (1912) 16 CLR 99 at 108-109 per Griffith CJ, 109-110 per Barton J, freedom of access to the seat of government.
... It does not mean... that, because the system of representative government for which the Constitution provides has no application to territories, s. 122 is unaffected by the implied freedom of political communication identified in Nationwide News and in Australian Capital Television. In this regard, it is sufficient to note that the Constitution contemplates that territories will be governed by laws enacted by a Parliament comprised of persons elected by and responsible to the people; it most certainly does not contemplate that they are to be governed by an executive unanswerable either to the Parliament or to the people.
Accordingly, the question whether s. 122 is subject to the freedom of political communication identified in Nationwide News and in Australian Capital Television, supra is one that must be answered by ascertaining the meaning and operation of that provision in its constitutional setting. In particular, its meaning and operation must be ascertained by having regard to the Constitution as a whole. ...
... Freedom of political communication is a freedom which extends to all matters which may fall for consideration in the political process. The government of the Australian territories is one such matter. Hence, the freedom extends to all matters that bear upon territory government as well as those which bear upon the actual government of the Territories.
Moreover, the nature of the freedom is such that it extends to members of society generally. ...
[F]reedom of association and freedom of movement are not absolute. Obviously, they must yield to valid laws of the Commonwealth on topics which clearly comprehend restrictions on movement and association, as is certainly the case, for example, with s. 51 (vi) which authorises laws with respect to defence, s. 51 (ix) which authorises laws with respect to quarantine and s. 51 (xix), so far as it is concerned with aliens. It is equally obvious that freedom of association and freedom of movement must yield to court orders for the detention of persons in custody upon conviction for criminal offences. ...
Because freedom of movement and freedom of association are not absolute, the question whether the Ordinance impermissibly restricted those freedoms is one that necessitates consideration of the issues raised by the Commonwealth in its plea that the Ordinance was enacted "for the purpose of the protection and preservation of persons of the Aboriginal race". That plea is the subject of Question 3. Until that question is answered, it is not possible to answer that part of Question 1 which asks whether the Ordinance was invalid because it impermissibly restricted freedom of movement and of association.
... [T]he consideration that, unlike other Australians, residents of the Territories have neither a constitutional right to participate in the electoral processes for which the Constitution provides nor a constitutional right to self-government is, in itself, a strong reason for reading s. 122 as subject to express constitutional guarantees and freedoms unless their terms clearly indicate otherwise. ... [I]n my view, s. 116 is to be given full effect according to its terms. ...
.. By its terms, s. 116 does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, "in form, a constitutional guarantee of the rights of individuals". It does not bind the States: they are completely free to enact laws imposing religious observances, prohibiting the free exercise of religion or otherwise intruding into the area which s. 116 denies to the Commonwealth. ... [I]t 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 are thereby affected.
Freedom of movement and of political communication stand in a somewhat different position from the limited guarantee of religious freedom effected by s. 116 of the Constitution. They are freedoms which, of their nature are universal, in the sense that they necessarily operate without restriction as to time or place. That being so, they necessarily restrict State legislative power and thus, may be described as giving rise to general, although as earlier indicated, not absolute freedoms. Even so, it does 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.
... 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 appropriate cases, exemplary damages. There is, thus, no necessity to invent a new cause of action. ...
... It 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 appropriate and adapted, or, alternatively, that it was appropriate and adapted to achieving that purpose. And in this regard, the Commonwealth contends that issues of appropriate adaptation are to be determined by reference to the standards and perceptions of the period in which the Ordinance operated, not those of the present day.
I have earlier described the freedoms of movement and of association as subsidiary to the freedom of political communication required for the maintenance of the system of representative government for which the Constitution provides. They are subsidiary only in the sense that they support and supplement that latter freedom and not in the sense that they are inferior to or less robust than it. ... In this respect, it is to be noted that not every restriction on communication is a restriction on the communication of political ideas and information. On the other hand, any abridgment of the right to move in society and to associate with one's fellow citizens necessarily restricts the opportunity to obtain and impart information and ideas with respect to political matters. ...
[A] law which is, in terms, a prohibition or restriction on political communication or which operates directly to prevent or curtail discussion of political matters is, in my view, to be taken to have that purpose unless the prohibition or restriction is necessary for the attainment of some overriding public purpose (for example, to prevent criminal conspiracies) or, in terms used by Deane J in Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 340 to satisfy some "pressing social need" (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" Cunliffe, supra at 240. That in turn depends on whether less drastic measures are available. On the other hand, a law with respect to some subject-matter unconnected with the discussion of political matters 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 reasonably appropriate and adapted or, which is the same thing, proportionate to some legitimate purpose connected with that other subject-matter.
In my view, the test applicable in the case of the implied freedom of political communication is equally applicable to the subsidiary freedoms of movement and association which support that freedom, namely, whether the purpose of the law in question is to restrict those freedoms. ...
[T]here 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 Aboriginal Australians, were in any way necessary for the protection or preservation of Aboriginal people or, indeed, those Aboriginal people whose rights in that regard were, in fact, curtailed. Certainly, the powers conferred on the Chief Protector and, later, the Director by ss. 6 and 16 were not conditioned on any necessity to take Aboriginal people into custody or to keep and detain them in reserves and institutions for their protection or preservation.
Nor were the powers conferred by ss. 6 and 16 of the Ordinance conditioned on the formation of an opinion that their exercise was necessary to protect or preserve Aboriginal people. On the contrary, the power conferred by s. 16 extended to all Aboriginals, except those falling within the limited categories specified in subs. (3), and was entirely at large; the exercise of the power conferred by s. 6(1) to take people into custody was subject only to the formation of an opinion by the Chief Protector and, later, the Director that it was "necessary or desirable in the interests of the aboriginal or half-caste for him to do so". ... Further, the regulation making power conferred by s. 67(1)(c) was not conditioned by reference to any necessity to protect or preserve any of the Aboriginal people of the Northern Territory.
It follows in my view that s. 6, so far as it conferred authority to take people into custody, and ss. 16 and 67(1) (c) were at all times invalid. As the plaintiffs complain only of their forced removal and detention in Aboriginal reserves and institutions, it is unnecessary to consider whether other provisions of the Ordinance which did not impinge on their freedom of movement and association were also invalid. ...
... There are two matters, one textual, the other contextual, which in my view, tell against construing s. 116 as applying only to laws which, 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 Company of Jehovah's Witnesses Inc [1943] HCA 12; (1943) 67 CLR 116 at 124, that "it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion". The contextual consideration is that, putting s. 122 to one side, the Commonwealth has no power to legislate with respect to religion, and, thus, a law which, in terms, prohibits religious practice would, ordinarily, not be a law on a subject-matter with respect to which the Commonwealth has any power to legislate. These considerations provide powerful support 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 terms, ban it.
... The matters to which reference has been made compel the conclusion that s. 116 extends to laws which prevent the free exercise of religion. And the need to construe guarantees so that they are not circumvented by allowing to be done indirectly what cannot be done directly has the consequence that s. 116 extends to provisions which authorise acts which prevent the free exercise of religion, not merely provisions which operate of their own force to prevent that exercise.
... The use of the word "for" indicates that purpose is the criterion and the sole criterion selected by s. 116 for invalidity. Thus, purpose must be taken into account. Further, it is the only matter to be taken into account in determining whether a law infringes s. 116. ...
Clearly, a law may have more than one purpose. ... 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 half-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 inconsistent with the purpose of removing Aboriginal children from their families and communities, thereby preventing them from participating in community practices. Indeed, in the absence of some overriding social or humanitarian need -- and none is asserted -- it might well be concluded that one purpose of the power conferred by s. 16 of the Ordinance was to remove Aboriginal and half-caste children from their communities and, thus, prevent their participation in community practices. And if those practices included religious practices, that purpose necessarily extended to prohibiting the free exercise of religion.
As with the implied freedom of political communication and the implied freedoms of movement and association, a law will not be a law for "prohibiting the free exercise of any religion", notwithstanding that, in terms, it does just that or that it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need. Nor will it have that purpose if it is a law for some specific purpose unconnected with the free exercise of religion and only incidentally affects that freedom. It is not pleaded in the present case either that the Ordinance was necessary for the protection or preservation of Aboriginal people or that its purpose was a purpose unconnected with the free exercise of religion. The plea is, thus, no answer to the plaintiffs' claim that the Ordinance was invalid by reason that it infringed s. 116. ...
...
...
McHugh J
For the reasons given by Dawson J:
(1) the Aboriginals Ordinance (1918) NT ("the 1918 Ordinance") was authorised by s. 122 of the Constitution;
(2) the actions of which the plaintiffs complain were not an exercise of judicial power by the Executive government contrary to Chapter III of the Constitution;
(3) the Constitution contains no general guarantee of due process of law or of legal equality before or under the law; and
(4) the power to legislate under s. 122 of the Constitution is not restricted by s. 116 of the Constitution.
[Implied right to freedom of movement and of association]
I would also reject the plaintiffs' claim that the 1918 Ordinance was invalid because it infringed an implied constitutional right of freedom of movement and association for political, cultural and familial purposes. Nothing in s. 122 of the Constitution gives any support for this claim. Nor is there any implication in the Constitution as a whole that supports the claim.
Because ss. 7, 24, 64 and 128 and related sections of the Constitution provide for a system of representative and responsible government and a procedure for amending the Constitution by referendum, the Constitution necessarily implies that "the people" must be free from laws that prevent them from communicating with each other with respect to government and political matters. The freedom arises from the constitutional mandate "that the members of the House of Representatives and the Senate shall be `directly chosen by the people' of the Commonwealth and the States, respectively." It exists for the protection of "the people of the Commonwealth" in the case of the House of Representatives and for "the people of the State[s]" in respect of the Senate. As a matter of construction, the constitutional implication cannot protect those who are not part of "the people" in either of those senses. ...
[A]t no relevant time were the residents of the Northern Territory part of the constitutionally prescribed system of government... . Moreover, at no time during the life of the 1918 Ordinance did an "aboriginal native of Australia", who was resident in the Northern Territory and subject to the 1918 Ordinance, have any right to vote in federal elections.
For these reasons, nothing in the Constitution implied that the plaintiffs had any freedom or immunity from laws affecting their common law rights of association or travel during the life of the 1918 Ordinance.
... Art. II of the Genocide Convention relevantly defines genocide to mean certain acts "committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such". ... There is, however, nothing in the 1918 Ordinance that could possibly justify a construction of its provisions that would authorise the doing of acts "with intent to destroy, in whole or in part" the Aboriginal race. ...
Gummow J
.. The reasoning in the Australian authorities has not proceeded on the footing that, because a constitutional guarantee operates to impose a restraint upon legislative power (as does s. 51(xxxi)) or to confer an immunity upon the individual in respect of certain activity (as does s. 117), it follows that the guarantee confers a "right" which must have a remedy in the form of substantive relief upon a personal cause of action. Such a conclusion does not necessarily follow from the premise. ...
The plaintiffs contend that a law made by the Parliament in terms of the impugned provisions of the 1918 Ordinance would exceed the restraint upon legislative competence imposed by a doctrine of legal equality. They referred to the affirmative answer given in Leeth v The Commonwealth, supra, at 485 by Deane and Toohey JJ to the question whether the Constitution, as a matter of necessary implication, adopts what their Honours had identified as a "general doctrine of legal equality" which existed as a "fundamental and generally beneficial doctrine of the common law". ...
As to this, four things may be said. First, no such doctrine was accepted by the other members of the Court in Leeth. ...
Secondly, the decision in Leeth, by which the validity of s. 4 (1) of the Commonwealth Prisoners Act 1967 (Cth) was upheld, was inconsistent with any "general doctrine of legal equality" ...
Thirdly, before federation the common law as it applied in the Australian colonies had been, as the common law in Australia is now, in continuing development by the courts administering it. In the nature of things, from time to time legislatures perceive the common law as unsatisfactory and as requiring, in a particular aspect, abrogation or modification. ...
Fourthly, to some extent, for example in the provision in s. 80 for trial by jury, the Constitution adopts and preserves institutions of the common law as they existed in 1900, or at least what are perceived to be the essential features of those institutions. In addition, contemporary development of the common law in Australia must conform to the Constitution and the common law and the Constitution cannot be at odds. But in the absence of an anchor in the constitutional text it is a large step to extract from the whole corpus of the common law a "general doctrine of legal equality" and treat it as constitutionally entrenched.
... It also is significant that certain provisions of s. 51 of the Constitution itself support legislation which operates to the detriment of particular groups of persons, as well as beneficial legislation. This is true of para. (xix) ("aliens") and also of para. (xxvi), at least in its original form ...
Persons who were, within the meaning of the 1918 Ordinance, Aboriginals and half-castes were subjected in the Territory to the most acute interference with family relationships and freedom of movement and with the displacement of the ordinary incidents of guardianship in respect of infant children. These laws did not operate at all upon other persons. Nevertheless, the legislative power from which the authority to make these laws was derived was not limited by any doctrine of legal equality, implied as a matter of logical or practical necessity for the preservation of the integrity of the structure established by the Constitution.
... That the structure established by the Constitution has as essential elements a system of responsible government and representative government does not bring with it, as an implication of logical or practical necessity for the preservation of the integrity of that structure, an implied restriction upon federal legislative power, as regards "freedom of association" in any general sense of that expression. ...
The plaintiffs rely also upon the freedom or immunity from any law or executive act providing for or having a purpose, effect or likely effect of the destruction in whole or part of a racial or ethnic group or of the language and culture of such a group. ... [T] he power conferred upon the Chief Protector by s. 6 was conditioned upon the holding by the Chief Protector of an opinion that it was necessary or desirable in the interests of the Aboriginal or half-caste in question for the Chief Protector to undertake the care, custody or control of that person. It was the duty of the Chief Protector to exercise a general supervision and care over all matters affecting the welfare of the Aboriginals and to protect them against "immorality, injustice, imposition and fraud" (s. 5(1)(f)). These provisions are indicative of a concern by the Executive, in making the Ordinance in exercise of the power conferred by s. 13(1) of the Administration Act, to assist survival rather than destruction. ...
[I]t is little short of inconceivable that when the Administration Act was passed in 1910 the power conferred by s. 13(1) was restrained as a matter of necessary inference from the structure of the Constitution in the way contended for by the plaintiffs.
... I agree with Dawson J that acts authorised by the 1918 Ordinance which took place after the ratification became effective on 12 January 1951 did not fall within the definition of "genocide" contained in the Convention. I further agree, again for the reasons given by Dawson J, that reliance by the plaintiffs upon customary international law is misplaced. ...
... [A] law which protects or regulates the personal or property rights of others will not ordinarily offend s. 116, despite curtailment by the general operation of that law of overt activity which in respect of some persons may give expression to their religious beliefs .
The use of the preposition "for" in the expression in s. 116 of the Constitution "for prohibiting the free exercise of any religion" directs attention to the objective or purpose of the law in issue. The question becomes whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved. "Purpose" refers not to underlying motive but to the end or object the legislation serves.
The definition of "Aboriginal institution" in s. 3 of the 1918 Ordinance included a "mission station" but also any "reformatory, orphanage, school, home or other institution". The impugned provisions of the 1918 Ordinance, and the general duties of the Chief Protector set out in s. 5(1), imposed no duty upon any officer charged with the administration of the 1918 Ordinance to bring up infants in any particular religion or to educate them in schools affiliated with any particular religion. No conduct of a religious nature was proscribed or sought to be regulated in any way. The withdrawal of infants, in exercise of powers conferred by the 1918 Ordinance, from the communities in which they would otherwise have been reared, no doubt may have had the effect, as a practical matter, of denying their instruction in the religious beliefs of their community. Nevertheless, there is nothing apparent in the 1918 Ordinance which suggests that it aptly is to be characterised as a law made in order to prohibit the free exercise of any such religion, as the objective to be achieved by the implementation of the law... .
...
The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch. III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed.
The powers of the Chief Protector to take persons into custody and care under the 1918 Ordinance were, whilst that law was in force, and are now, reasonably capable of being seen as necessary for a legitimate non-punitive purpose (namely the welfare and protection of those persons) rather than the attainment of any punitive objective. ...
...
...
...
Question 1 of the questions reserved in each action should be answered by saying that none of the legislation in respect of which a declaration of invalidity is sought in that action is invalid by reason of any of the rights, guarantees, immunities, freedoms or provisions pleaded in para. 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.
This decision is reported in (1997) 71 AJLR 991. l
Endnotes
1. Justice Kirby did not sit.
2. The Constitution of the Commonwealth of Australia 1st ed (1902) at 329.
[3] See for example: Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 24 per Barwick CJ, 46 per Gibbs J; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 43 per Brennan J; Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 139-140 per Mason CJ, at 182 per Dawson J; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 193 per Dawson J.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/37.html