Regina v. Lampe; Ex Parte Maddalozzo1
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| DOI | 10.1177/0067205X6400100110 |
| Author | T. J. Higgins |
| Subject Matter | Article |
JUNE
1964] Case Notes 149
law made under section 122 is a
'law
of
the Commonwealth'
at
least
for the purposes
of
section 109
of
the Constitution. The Chief Justice
in Lamshed
v.
Lake was careful
to
distinguish Bernasconi's case
but
did
not
expressly approve
of
it.
He
said:
. . . since Chapter
III
has been considered to be concerned with
judicature in relation to
that
division
of
powers [between acentral
and local State legislature]
it
may be treated as inapplicable so
that
laws made mediately
or
immediately under section 122 are primarily
not
within the operation
of
the Chapter.
15
In
Lamshed
v.
Lake, Dixon C.J. stated
that
there were anumber
of
powers in section
51
that
had
no relation
to
the Territories. However,
the mere fact
that
apower was conferred by section
51
did
not
itself
mean that
it
was only
of
Commonwealth-State concern
and
irrelevant
to
the Territories. Some
of
the powers expressly mentioned as appli-
cable
to
the Northern Territory were the naval and military defence
of
the Commonwealth, the postal power, power in respect
to
fisheries in
Australian waters beyond territorial limits, banking including State
banking extending beyond the limits
of
the State concerned, naturalisa-
tion, aliens
and
the incidental power.
Other powers mentioned by Dixon C.J. in Lamshed
v.
Lake as being
applicable to laws made under section 122 were section 118, section 116,
section 120, section 52 (i)
and
section 49.
Thus in the instant case Bridge J. approached the problem
of
the
application
of
section
51
(xxxi)
to
the Northern Territory along the
lines set
out
by Dixon C.J.
in
Lamshed
v.
Lake.
T.
I.
HIGGINS
REGINA
v.
LAMPE;
EX
PARTE
MADDALOZZ01
Constitutional
Law-
Ultra Vires-Application
of
the maxim 'delegatus
non
potest delegare'
-Legislative
and administrative power-Sources
of
legislative power
in
the Territories-Mandamus-Executive power.
Maddalozzo sought
an
order for mandamus to require members
of
aBuilding Board appointed under the Building Ordinance 1955 (N.T.)
to
hear and determine abuilding application.
The applicant
had
applied to the Board for abuilding permit under
the Ordinance. The Board specified certain conditions in regard
to
the building which the applicant contended were outside the material
which the Board was legally entitled
to
consider.
The Building Ordinance was made by the Legislative Council
of
the
Northern Territory under section
4U
of
the Northern Territory (Adminis-
tration) Act 1910-1962 (Cth). The Ordinance gave power
to
the
15
Ibid.
142.
1Judgment
29
March 1963,
not
yet reported; Supreme Court
of
the Northern
Territory; Bridge J.
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