Commonwealth territories and separation of powers

Figure0803I understand that the High Court is likely to hand down its decision in North Australian Aboriginal Justice Agency v Northern Territory of Australia (‘NAAJA v NT’) within the next week or so tomorrow.  So what, you might say?

The context – NT “paperless arrest’ law

Well, the immediate law under challenge and its context are quite interesting (not to say disturbing) in themselves.  As the High Court’s own case summary explains:

This special case challenges the validity of Division 4AA of Part VII of the Police Administration Act 2014 (NT) (‘the PA Act’) which commenced operation on 17 December 2014. The new powers apply where a member of the police force arrests a person without a warrant and does so believing on reasonable grounds that the person has committed, was committing, or was about to commit an “infringement notice offence”.  Some 35 different offences fall within this class. The majority are minor offences for which no term of imprisonment could be imposed as a penalty for the offence, if the person were found guilty by a court. Many are of a “public order” character. The new powers purport to authorise police to take a person into custody and hold the person for a period of up to four hours or, if the person is intoxicated, for a period longer than four hours, until the member believes on reasonable grounds that the person is no longer intoxicated.

The first plaintiff provides legal services to Aboriginal and Torres Strait Islander people in the Northern Territory. It alleges that a disproportionately high number of people detained under s 133AB of the PA Act since it came into effect are indigenous. The second plaintiff was arrested and taken into custody purportedly pursuant to s 133AB(2)(b) of the PA Act on 19 March 2015 and was held in custody for almost 12 hours.

 Possible practical and legal consequences

However, although the human rights aspects of authorising arrest for such minor offences  are significant*, the case has much wider and potentially dramatic constitutional consequence for Australia’s Commonwealth territories generally.  Moreover, as I outline at the end of this (rather long) post, the wider human rights consequences of accepting NAAJA’s main constitutional argument are adverse for Australia’s Commonwealth territories and even more serious.  If those arguments are accepted it will be a classic situation of hard cases making bad law.

*The challenged provisions are more an example of thoughtless overreach than outrageous abuse of human rights (as some hyperbolic commentary has suggested). It has always been lawful for police to arrest any person for any offence, including ones that don’t carry a term of imprisonment. Usually they proceed by summons rather than arrest with those offences, but arrest can and does take place e.g. for offences like drunk and disorderly. However, where the offence does not carry imprisonment the arrested person must be released as soon as all the charging paperwork is completed, which usually take an hour or so. See section 137(3) of the Police Administration Act. The only real effect of the challenged provisions is to allow police to keep a person in custody and postpone completing the arrest and charging paperwork for 4 hours (or more if the person is intoxicated) so they can get back on the road and continue dealing with the Territory’s huge crime rates. That is why it is called a “paperless arrest” law. It should also be noted that police have for many years had powers of preventive/protective (non-arrest) detention and custody for drunks and others who are a danger to themselves or others, and for periods much longer than 4 hours. See Division 4 of the Police Administration Act. The practical injustice arises from evident selective enforcement by police.  Caucasian tourists, bogans and off duty military personnel on the Mitchell Street nightclub strip are often just as drunk and much worse behaved than any Aboriginal person but are seldom arrested.

It’s the Constitution (not just the vibe)

The wider importance of NAAJA v NT is that it will probably decide definitively whether the constitutional doctrine of separation of powers (between legislative, executive and judicial power) applies to laws made by the parliaments of self-governing Commonwealth territories (presently the Northern Territory and ACT).

The challenged “paperless arrest” provisions are characterised by the applicant NAAJA as undeniably punitive, and punitive detention (as opposed to detention for protective or other reasons) has been held to be an exercise of judicial power and hence a power that can’t be conferred on an executive body (like police) where separation of powers is a constitutional requirement. The NT government argues that the provisions are not punitive anyway, but that wouldn’t matter if separation of powers doesn’t apply.

Given that it certainly doesn’t apply to State parliaments, and that it has generally been assumed by governments and lawyers until now that it didn’t apply to the territories either, a ruling that separation of powers nevertheless constrains the legislative powers of territory parliaments would have a major impact. Most prominently, both the NT and ACT have followed the trend of all states and created their own general civil and administrative tribunals: quasi-judicial tribunals (not courts) that combine the functions of an administrative law merits review tribunal (clearly an executive function) with equally clearly judicial functions.  For example NTCAT determines residential tenancy disputes and will determine all civil damages claims up to $25,000.  If a constitutional requirement for separation of powers is held to apply to the territories (in contrast to the states) then the jurisdictions of these tribunals will need to be radically restructured and many existing decisions will be invalid.

More broadly, it is quite common for reasons of both convenience and practical justice that some judicial functions are conferred on executive bodies and some executive functions are vested in territory courts.  Significant restructuring would be needed across a wide range of institutions and functions, and invalid determinations would either have to be validated by remedial legislation or the dispute reheard.

Courts and jurisdiction in the territories – “baroque complexities”

But how did it happen that the NT and ACT have conducted their affairs on the basis that constitutionally mandated separation of powers did not apply to them, when in fact no definitive High Court ruling on that question has ever been made?

One reason is that the case law in this area is so confusing, convoluted and technical that Cowen and Zines have referred to ‘[t]he baroque complexities and many uncertainties associated with courts and jurisdiction in the Territories’.  Those complexities in turn have emerged as a result of several factors:

First, the Constitution itself gives few if any clues as to how Commonwealth territories fitted into the federal compact comprising the Australian Constitution.  Section 122, which gives the Commonwealth Parliament its power to legislate for territories, is expressed in stark, simple terms. Structurally section 122 is not included in the Chapters comprising that federal compact (Chapters 1-V inclusive) but in a separate Chapter VI titled “New States”.

Secondly, there was very little discussion about the place of Commonwealth territories during the Constitutional Conventions of the 1890s.  It is difficult to escape the conclusion that little thought was given to territories by the Founders.

Subsequent attempts to fit territory courts, and indeed to place the territories more generally, into the Constitutional framework have involved the application of conflicting theories, including:

  1. The section 122 territories power as a “full and plenary” power authorising the Commonwealth to make whatever laws it likes in the territories on whatever subjects it sees fit with few restrictions.
  2. The “One Australia” theory, which aims at making the constitutional position of the territories, at least the self-governing mainland territories, as close as reasonably possible to that of the States.
  3. The “single system of Australia courts” hypothesis, which sees the Constitution as creating (and desirably guaranteeing) a single system of federal and state (and territory?) courts with the High Court at its apex.

The territories power – ‘disparate and non-federal’?

R v Bernasconi[1] is perhaps the starkest example of the first theory about the place of the territories in the Constitution.  Courts established to mete out justice to territory residents were not exercising the “judicial power of the Commonwealth” and so section 80 (part of Chapter III of the Constitution) which provides a guarantee of trial by jury for indictable offences had no application. You might think this would necessarily mean that separation of powers, which is a constitutional implication flowing both from the structure of the Constitution and the terms of Chapter III specifically, could not apply to territories either.  However none of the Justices in Bernasconi actually said so.  The direct result (by accident rather than design) meant that the position of territories to this extent coincided with that of the states: they don’t have any constitutional guarantee of jury trial either.

Almost 40 years later in Attorney-General (Commonwealth) v The Queen[2] the Privy Council made an even more sweeping statement about the (non) place of the territories in Australia’s constitutional framework:

There appears  to be no reason why the  Parliament  having  plenary  power  under  s  122  should  not  invest  the  High Court  or  any  other  court  with  appellate  jurisdiction  from  the  courts  of  the Territories.  The  legislative  power  in  respect  of  the  Territories  is  a  disparate and non-federal matter.

Again the practical result was to affirm an earlier High Court decision upholding Commonwealth legislation which put territory residents and courts on a similar footing to states in relation to appeals to the High Court, but it did so not by finding any constitutional right of appeal but on the basis that section 122 allowed Parliament to do effectively what it liked in Commonwealth territories.  It could legislate for territories free from all of the restrictions, freedoms and guarantees that applied in relation to states and their residents.

The evolution of the “One Australia” approach to the territories

Nevertheless, as the mainland territories grew and developed it became increasingly evident that treating territory residents as effectively “second class” citizens with none of the rights and protections applying to state residents was not really maintainable.  Hence the progressive development of an approach some have referred to as the “One Australia” theory.  In Spratt v Hermes Barwick CJ remarked:

No doubt some of the powers of the Commonwealth are appropriate to the rule of non self-governing possessions whilst others, though federally disposed, are truly those of a self-governing people. But this neither means that the Constitution is divisible into two parts without any mutual interaction nor that the power to govern dependent territories is in no respect controlled by any other part of the Constitution. …

Though the abandonment of a doctrine of interpretation of the Constitution is something not lightly and but rarely to be done, I feel compelled after deep consideration, because of the logical consequences of doing so, to express the view that the Constitution ought not to be interpreted as if Chap. III as a whole were “inapplicable to territories”. [3]

However, Barwick CJ said nothing about whether separation of powers should be regarded as having any application to the territories power. Later, in Australian Capital Duplicators v Australian Capital Territory, Gaudron J enunciated the “One Australia” theory rather more clearly:

The constitutional significance of the political relationship between Territorians and the body politic of the Commonwealth of Australia is, perhaps, not as obvious as that which flows from the fact that the Internal Territories are part of the geographical area that is Australia. However, it is arguable that that relationship requires that s. 122 be interpreted in a way that secures to Territorians the same basic rights that the Constitution confers on other Australians, unless the contrary is clearly indicated. …

Her Honour went on to postulate that perhaps section 122 should be interpreted restrictively so that:

it only authorizes the alteration of their status from dependent Territory to that involving a separate body politic with separate organs of government, on the basis that, as separate bodies politic, they are subject to the same restraints as the Constitution imposes on the States.[4]

In fact, case law on the territories power up to 1992 and subsequent to Gaudron J’s enunciation of the “One Australia” doctrine, and whether by accident or design, has actually resulted in a situation whereby the legal position and rights of residents of Commonwealth mainland territories (NT and ACT) are approximately equal to those of state residents. Constitutional freedoms and guarantees such as freedom of religion and of political communication apply to territory residents as they do to those living in the states; we have federal political representation at least in the House of Representatives calculated on the same basis as the states (although in theory it could be removed by the Commonwealth by ordinary legislation[5], in contrast to state residents); and at least to date no part of Chapter III of the Constitution has been held to apply to the territories to any different effect to the states.  In addition to the cases previously noted, the High Court has also held that the terms of appointment, tenure and remuneration of federal judges provided in Chapter III (section 72) do not apply to territory courts or judicial officers[6], any more than they do to the states.

The only significant aspect of Chapter III that has not yet been determined by the High Court is whether separation of powers applies either to the Commonwealth’s exercise of power under Constitution section 122 or to the self-governing territory legislatures it has established pursuant to that power.  The question was considered by the High Court in Kruger v Commonwealth[7] but not determined.  Three Justices held that separation of powers had no application to section 122; Toohey J held that it did; Gaudron J concluded that no general principle that detention/imprisonment was an exclusively judicial power could be identified and so the question of separation of powers did not arise; and Gummow J noted that on the present state of authority, it could not be said that laws made pursuant to section 122 must comply with the doctrine of separation of powers, but did not decide the question.

Coherent in practice if not theory

In other words, although it can certainly be said that existing case law on the territories power has “not resulted in a coherent body of doctrine” in terms of the underpinning legal theory, in a practical sense case law has resulted in a high degree of coherence, namely that the combination of Commonwealth legislation and High Court jurisprudence has actually achieved a situation which in most regards “secures to Territorians the same basic rights that the Constitution confers on other Australians, unless the contrary is clearly indicated”, as Gaudron J envisaged in Capital Duplicators.

If the High Court decides tomorrow that separation of powers does apply to exercises of power under Constitution section 122 (and to those by self-governing territory legislatures), it will represent a dramatic departure from this longstanding pragmatic approach by both the Commonwealth Parliament and High Court.  That would in this writer’s view be extremely unfortunate, especially given that the Northern Territory is embarking on a statehood process, in respect of which judicial imposition of constitutionally mandated separation of powers would at the very least have significant nuisance value.

In fact it would potentially have much more than nuisance value. Such a finding potentially invalidates a wide range of judicial and quasi-judicial decisions made by courts and quasi-judicial tribunals in both the NT and ACT.  Moreover, if separation of powers constrains both the Commonwealth Parliament and NT and ACT Legislative Assemblies, it may well be impossible for them to enact legislation directly validating existing decisions, because such an exercise might itself breach separation of powers.  It would no doubt be possible to enact legislation reconstituting the relevant bodies and their powers, and include a power allowing the new body to re-determine existing decisions by an expedited process, but such a process would unavoidably be time-consuming and expensive.

Moreover, at least if the NT Solicitor-General is correct in his assertion that the challenged provisions don’t actually add anything substantive to existing powers of arrest and detention, the whole exercise is pointless in a practical sense.  This writer at least hopes that the High Court resists any temptation to recast existing jurisprudence by imposing constitutionally mandated separation of powers on the territories.  When you take into account that existing High Court jurisprudence on separation of powers at federal level allows federal courts to make “control orders” against persons who have not committed a crime[8] and does not prevent executive bodies from subjecting people to effectively almost unlimited “administrative detention”[9], it is not unreasonable to suggest that the protection afforded by separation of powers at least by itself is somewhat marginal.  If they managed to find a way to imply a right to due process I would be more excited.

Indeed a decision holding that separation of powers is constitutionally mandated by the territories power may well come to be seen as a pyrrhic victory for core human rights.  The High Court’s reasoning in R v Momcilovic in 2011 held that the Victorian Charter of Human Rights was valid.  However the reasoning of five of the Justices indicates that a similar “dialogue model” charter of rights at federal level would be invalid on separation of powers grounds.  The ACT is the only other Australian jurisdiction with a bill of rights of any sort (the Human Rights Act 2004) and it too is a “dialogue model” charter.  Depending on the result of NAAJA v NT it may well be wholly invalid.

Additional reading

For a more general coverage of NAALAS v NT see Anna Reinstra, ‘The ‘paperless arrest’: Chapter III and police detention powers in the Northern Territory’ Australian Public Law blog 9/11/2015

For a fuller discussion of the “One Australia” theory in its application to Commonwealth territories see Graham Nicholson, ‘The Concept of “One Australia” in Constitutional Law and the Place of the Territories‘ 25 Federal Law Review 281 (1997).

For a much fuller discussion of the territories and judicial power see Tom Pauling QC and Sonia Brownhill, ‘The Territories and Constitutional Change’ 28 Adelaide Law Review 55 (2007).


[1] (1915) 19 CLR 629 (‘Bernasconi’).

[2] (1957) 95 CLR 529.

[3] (1965) 114 CLR 226, 247-248.

[4] Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, 288-289.

[5] Although the High Court’s reasoning about the scope and meaning of the words “directly chosen by the people” in Constitution sections 7 and 24 (see e.g. Roach v Electoral Commissioner (2007) 233 CLR 162 [6] – [7] per Gleeson CJ) should be noted.  It rests in part on the proposition that although those sections permitted the legislation of universal adult suffrage, it could not now be reversed. The reasoning was based on the conclusion that the evolution of cultural and historical understandings meant that anything less than universal adult suffrage could not now be regarded as direct choice by “the people”. By parity of reasoning, it is at least conceivable that the Court would similarly regard any attempt to strip Territorians of voting rights in federal elections as not supported by ss 7 and 24.

[6] Spratt v Hermes (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146.

[7] (1997) 190 CLR 1.

[8] Thomas v Mowbray (2007) 233 CLR 307

[9] Chu Kheng Lim v MILGEA (1992) 176 CLR 1.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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4 Responses to Commonwealth territories and separation of powers

  1. Jenny McCulloch says:

    Federal court control orders and detention have their source of power in the defence power and the aliens power. What power would support admin detention for infringement notice offences in Div4AA? Trade and commerce?

    • Ken Parish says:

      The challenged provisions are in a NT Act not a Commonwealth one. The NT Legislative Assembly was given general (full and plenary) legislative power (to make laws for the peace, order and good government of the NT – though subject to some express exceptions e.g. Aboriginal land rights) by the Australian Parliament by section 6 of the Northern Territory (Self-Government) Act. In turn the Commonwealth’s source of legislative power to do so is found in Constitution s 122 (which is also a full and plenary power).

      The legislative powers found in Constitution section 51 define the Commonwealth’s powers to legislate federally (i.e. they define the Commonwealth’s share of the division of powers between Commonwealth and States). The Commonwealth COULD rely on one of those powers to legislate for a Territory if it wanted to and a head of power was available, but it has no need to do so because it can simply rely on section 122. Accordingly there is simply no need to ask your question.

  2. Jenny McCulloch says:

    Thanks for being so gracious. Gloriously missing the whole point there. But the error does indicate that it is hard to imagine that Territorians don’t have the same legal status in as those living in a state. Self-government is the ersatz independence from the Commonwealth that allows us to forget. The people who remember the neglect that stymied independent action and sensible development before self-government are thin on the ground. If Div4AA is invalidated there will be a bureaucratic blip and flurry but it needs to be enough to revive the Canberra bashing meme.

    • derrida derider says:

      Err, by “Canberra bashing” do you mean “Commonwealth bashing”? Because if so Canberra will be the biggest Canberra basher of all on this matter.

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