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Published online by Cambridge University Press: 24 January 2025
This paper argues that there is a fundamental concept implicit in the interpretation of the Australian Constitution which postulates that that document should be approached from the perspective of what I have called for convenience “One Australia”. It is a concept which suggests that the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a “unitary” system of Australian domestic laws. It arises from the evolution of Australian nationhood and from the increasingly interdependent nature of Australian society. It is suggested that this concept is already exerting an influence on judicial decision-making in this country, to be balanced with other constitutional fundamentals, including that of the federal system. However it is also asserted that the full implications of “One Australia” have not as yet been determined. This is particularly so in relation to Commonwealth territories and their residents. The latter have in the past been generally regarded as being of little importance, both constitutionally and otherwise.
1 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 146-148 per Knox CJ, Isaacs, Rich and Starke JJ, cited in New South Wales` v Commonwealth (1932) 46 CLR 155 at 196-197 per Evatt J, and in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 446-450 per Isaacs J; Commonwealth v Kreglinger and Fernau Ltd (1925) 37 CLR 393 at 411-413 per Isaacs J; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 668 per Murphy J; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 228-231 per McHugh J; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 147 per Brennan J; and McGinty v Western Austraha (1996) 186 CLR 140 at 269 per Gummow J; and Lange v Australian Broadcasting Corporation (High Court of Australia, 8 July 1997, unreported); Levy v Victoria (High Court of Australia, 31 July 1997, unreported).
2 Attorney-General (Commonwealth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 56-57 per Stephen J; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 47-50 per Brennan J, at 70-71 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 137-138 per Mason CJ , at 168 per Deane and Toohey JJ , at 210-212 per Gaudron J, at 228-231 per McHugh J; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 121 per Mason CJ , Toohey and Gaudron JJ , at 147 per Brennan J, at 199-201 per McHugh J; and McGinty v Western Australia (1996) 186 CLR 140 at 167-171 per Brennan CJ, at 221-222 per Toohey J; Lange v Australian Broadcasting Corporation (High Court of Australia, 8 July 1997, unreported).
3 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Kable v Director of Public Prosecutions (1996) 70 ALJR 814; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 70 ALJR 743.
4 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and other cases, with the principles concerning this implied right recently re-argued in further litigation in the High Court; Lange v Australian Broadcasting Corporation (High Court of Australia, 8 July 1997, unreported); Levy v Victoria (High Court of Australia, 31 July 1997, unreported).
5 Victoria v Commonwealth and Hayden (1975) 134 CLR 338; Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351; Commonwealth v Tasmania (1983) 158 CLR 1; Davis v Commonwealth (1988) 166 CLR 79; Victoria v Commonwealth (1996) 70 ALJR 680.
6 Laurie v Carroll (1958) 98 CLR 310 at 331 per Dixon CJ , Williams and Webb JJ.
7 Constitution, ss 106, 107 and 108.
8 Breavington v Godleman (1988) 169 CLR 41 at 78 per Mason CJ. See also Victoria v Commonwealth (1971) 122 CLR 353 at 396 per Windeyer J; Street v Queensland Bar Association (1989) 168 CLR 461 at 485 per Mason CJ.
9 “5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.” This section is discussed in Lange v Australian Broadcasting Corporation (High Court of Australia, 8 July 1997, unreported).
10 “118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”
11 Breavington v Godleman (1988) 169 CLR 41, adopting a single lex loci test in tortious claims involving more than one Australian jurisdiction. Note the return to a modified “ Phillips v Eyre” test in McKain v RW Miller & Co (South Australia) Pty Ltd (1992) 174 CLR 1 and Stevens v Head (1993) 176 CLR 433, although without a flexible exception of the kind applied in Chaplin v Boys [1971] AC 356. The provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and parallel State and Territory Acts, plus the Service and Execution of Process Act 1992 (Cth), have profoundly affected the jurisdictional relationships between Australian courts. State and Territory legislation on limitation periods has also affected conflict of law rules within Australia - see Gardner v Wallace (1996) 70 ALJR 113. Further, co-operative legislation on conflict of laws within Australia is proposed, following on from the Report of the Australian Law Reform Commission, Choice of Law, (Report No 58, 1992.
12 The word “unitary” is used without denying that there are State and Territory laws operating concurrently with Commonwealth laws, but together operating as one coherent and internally consistent system of Australian laws.
13 Lange v Australian Broadcasting Corporation (High Court of Australia, 8 July 1997, unreported). As to the common law in Australia, see also Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 105 at 141-142 per Brennan}.
14 Breavington v Godleman (1988) 169 CLR 41 at 122-123 per Deane J.
15 University of Wollongong v Metwally (1983) 158 CLR 447 at 478-479 per Deane J.
16 Breavington v Godleman (1988) 169 CLR 41 at 123-124 per Deane J.
17 Australian Citizenship Act 1948 (Cth), Part III.
18 Constitution, s 117. It was said by Deane Jin Street v Queensland Bar Association (1989) 168 CLR 461 at 522 that this section “constitutes a structural provision directed at the promotion of national economic and social cohesion and the establishment of a national citizenship”.
19 Royal Style and Titles Act 1973 (Cth). See Commonwealth v Queensland (1975) 134 CLR 298.
20 Leeth v Commonwealth(1992) 174 CLR 455.
21 Ibid at 484 per Deane and Toohey JJ.
22 Ibid at 486.
23 Commonwealth of Australia Constitution Act (UK), Covering Clause 5; Constitution, ss 51(iii), (vi), (xx), (xxiv), (xxv) and 118.
24 As to Covering Clause 5, see Lamshed v Lake (1958) 99 CLR 132 at 148 per Dixon CJ; Spratt v Hermes (1965) 114 CLR 226 at 246-247 per Barwick CJ , at 252 per Kitto J, at 270 per Menzies J and Munn v Argus , (Northern Territory Court of Appeal, 17 January 1997, unreported). As to s 5l(iii), see Capital Duplicators Pty Ltd v Australian Capital Territory (No1) (1992) 177 CLR 248 at 279 per Brennan, Deane and Toohey JJ , at 289-290 per Gaudron J. As to s 51(vi), see Lamshed v Lake (1958) 99 CLR 132 at 143 per Dixon CJ. As to s 51(xx), see New South Wales v Commonwealth (1990) 169 CLR 482 at 504, 508 per Deane J. As to s 51(xxiv), see Aston v Irvine (1955) 92 CLR 353 at 364 per Dixon CJ , McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ; Lamshed v Lake (1958) 99 CLR 132 at 151 per Williams J. As to s 51(xxv), see Breavington v Godleman (1988) 169 CLR 41 at 149 per Dawson J. As to s 118, see Lamshed v Lake (1958) 99 CLR 132 at 142 per Dixon CJ; Breavington v Godleman (1988) 169 CLR 41.
25 Berwick v Gray (1976) 133 CLR 603 at 605 per Barwick CJ and at 608 per Mason J; JQ Ewens,“Norfolk Island as Part of the Commonwealth” (1980) 54 AL/ 68.
26 Lumb, RD, “The Commonwealth of Australia - Constitutional Implications” (1979) 10 FL Rev 287Google Scholar.
27 Kahle v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814 at 839 per Gaudron J, at 844-847 per McHugh J, at 860 per Gummow J.
28 Ibid at 838-839 per Gaudron J, at 843 per McHugh J and the cases cited at footnote 186, at 858 per Gummow J.
29 Ibid at 846 per McHugh J.
30 Kahle v Director of Public Prosecutions (NSW)(1996) 70 ALJR 814.
31 Constitution, s 77(iii).
32 The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and complementary State andl Territory Acts, plus the Corporations Act 1989 (Cth), Part 9, and complementary State andl Territory Acts, currently provide schemes for cross-vesting of superior court jurisdiction in Australia. The validity of these schemes was upheld in BP Australia Ltd v Amann Aviatiori Pty Ltd (1996) 62 FCR 451, with special leave to appeal to the High Court having beer granted, the case now being entitled Gould v Brown. There may, however, be somE constitutional limits on the capacity of States to vest State jurisdiction on Federal courts.
33 The Queen v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1985) 158 CLR 535 at 552 pel Gibbs CJ.
34 Section 92 provides that trade, commerce and intercourse among the States shall bt absolutely free.
35 McGinty v Western Australia (1996) 186 CLR 140 at 168 per Brennan CJ.
36 Constitution, ss 106, 107 and 108.
37 For example, s 51(xxxi) of the Constitution as to just terms and ss 80 and 116.
38 National referendum of 3 September 1988, the results of which are summarised in Blackshield, Williams and Fitzgerald, Australian Constitutional Law and Theory: Commentary and Materials (1996) at 974-975.
39 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
40 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 162 per Brennan J, at 176-177 per Deane and Toohey JJ, at 215-216 and 221-224 per Gaudron J, but see at 245-246 per McHugh J; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 156 per Brennan J, at 164 per Deane J.
41 Constitution Act, s 6, definitions of “The States”; Constitution, ss 111 and 122.
42 Constitution, s 121.
43 Constitution, s 125.
44 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 274-275 pe Brennan, Deane and Toohey JJ; Cole v Whitfield (1988) 165 CLR 360 at 391 per Mason CJ Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
45 Commonwealth of Australia Constitution Act (UK), s 6, definition of “The States”.
46 SirMason, Anthony, “The Australian Constitution 1901-1988” (1988) 62 AL/ 752 at 755Google Scholar.
47 Commonwealth of Australia Constitution Act (UK), s 6, definitions of “The States”; Constitution, ss 111 and 122.
48 The first Commonwealth territory to be established was that of Papua, effective on 1 September 1906 under the Papua Act 1905 (Cth). The Northern Territory became a Commonwealth territory on 1 January 1911 under the Northern Territory Acceptance Act 1910 (Cth). The Australian Capital Territory was proclaimed as a territory on the same day under the Seat of Government Acceptance Act 1910 (Cth).
49 Buchanan v Commonwealth (1913) 16 CLR 315; R v Bernasconi (1915) 19 CLR 629.
50 PF Donovan, A Land Full of Possibilities (1981), Chs 9 and 10; Alan Powell, Far Country (1982) Ch 7.
51 Constitution, s 125.
52 H Zelling, The Territories of the Commonwealth, in the Hon Justice Else Mitchell (ed) , Essays on the Australian Constitution (2nd ed 1961) at 338.
53 Constitution Alteration (Referendums) 1977 (Cth), the referendum being held on 21 May 1977, and resulting in the third highest affirmative vote in all referenda.
54 Western Australia v Commonwealth (1975) 134 CLR 201; Queensland v Commonwealth(1977) 139 CLR585.
55 Lam.shed v Lake (1958) 99 CLR 132; Spratt v Hermes (1965) 114 CLR 226; Attorney-General 1 (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines : Commission (1976) 138 CLR 492.
56 Spratt v Hermes (1965) 114 CLR 226 at 242 per Barwick CJ; Capital Duplicators Pty Ltd v • Australian Capital Territory (1992) 177 CLR 248 at 288 per Gaudron J.
57 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 287-288 perGaudron J; Nicholson, GR, “Constitutionalism in the Northern Territory and Other Territories” (1992) 3 PLR 50 at 55Google Scholar and footnote 39.
58 Newcrest Mining (WA) Ltd v Commonwealth (1993) 46 FCR 342; Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167, on appeal to the High Court at the time of writing, and in which it was argued that Teori Tau v Commonwealth (1969) 119 CLR 564 should be overruled.
59 Northern Territory (Self-Government) Act 1978 (Cth) and Regulations.
60 Australian Capital Territory (Self-Government) Act 1988 (Cth) and the ACT Self-Government (Consequential Provisions) Act 1988 (Cth).
61 Norfolk Island Act 1979 (Cth).
62 Berwick v Gray (1975) 133 CLR 603; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 183-186 per Gibbs CJ , at 265-266 per Aickin J , at 278-280 per Wilson J; Capital 1 Duplicators v Australian Capital Territory (1992) 177 CLR 248.
63 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212;Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462.
64 Australian Demographic Statistics, ABS Catalogue No. 3101.0, March Quarter 1996 at 8.
65 Euthanasia Laws Act 1996 (Cth), overriding the Rights of the Terminally Ill Act 1995 (NT), the latter Act having been held to be valid in Wake and Gondarra v Northern Territory (1996) 109 NTR 1, and following the Report of the Senate Legal and Constitutional Committee, Euthanasia Laws Bill 1996 (March 1997).
66 (1992) 177 CLR 248.
67 Section 90 provides that the power of the Commonwealth Parliament to impose duties of customs and excise, and to grant bounties on the production or export of goods, is exclusive.
68 (1992) 177 CLR 248 at 278-279 per Brennan, Deane and Toohey JJ.
69 Ibid at 288-289 per Gaudron J.
70 The concept of universalism in human rights is spelt out in the Universal Declaration of Human Rights of 1948 and in other international human rights instruments. The Vienna Declaration, adopted at the Second World Conference on Human Rights, provides ins I paragraph 5 that all human rights are universal, indivisible, and interdependent and inter-related.
71 For example, in the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
72 There are many recent examples of this in Australian judicial decisions, for example, Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. For a, discussion, see SirMason, Anthony, “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 PLR 20Google Scholar.
73 For example, Breavington v Godleman (1988) 169 CLR 41 at 98 per Wilson and Gaudron JJ. adopting a common law rule for events occurring in a Commonwealth territory equivalen: to that ins 118 of the Constitution.
74 Existing constitutional provisions that warrant consideration in this regard includt ss Sl(xxxi), 80 and 116.
75 Above n54
76 Northern Territory Statehood Working Group, Final Report (Northern Territory edition, May 1996), prepared for the Council of Australian Governments (COAG); Legislative Assembly of the Northern Territory, Foundations for a Common Future, Report on Paragraph l(a) of the Sessional Committee on Constitutional Development's Terms of Reference on a Final Draft Constitution for the Northern Territory (November 1996).
77 Constitution, s 106, and note Select Committee of the Legislative Assembly of the Northern Territory on Constitutional Development, Entrenchment of a New State Constitution ,Information Paper No. 2, undated.
78 Foundations for a Common Future, Volume 1, at 5.11-5.13 and note the Final Draft Constitution for the Northern Territory at Appendix 8 of that Volume, Preamble 1 plus Clause 2.1.1, Part 7 and Part 8.
79 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 272 per Brennan, Deane and Toohey JJ
80 Constitution, ss 52(i) and 125.