The Commonwealth Places (Application of Laws) Act 1970
| Author | Dennis J. Rose |
| DOI | 10.1177/0067205X7100400204 |
| Published date | 01 June 1971 |
| Date | 01 June 1971 |
| Subject Matter | Article |
THE COMMONWEALTH PLACES
(APPLICATION
OF
LAWS)
ACT
1970
By
DENNIS
J.
ROSE*
Introduction
When
Mr
Cyril Worthing fell
and
suffered InjUrieS during his
inspection of building work at the
Richmond
Air
Force
Base
there
was not only
an
alleged gap in the scaffolding
but
also a
very
significant
gap
in
the
law.
For
when
he
sued
the
defendant contractors
for
damages
for
breach
of alleged statutory
duty·
under the Scaffolding
and
Lifts
Act,
1912-1965
of
New
South
Wales,
the
High
Court
held
in
Worthing v. Rowell and Muston
Ply
Ltd
and Others1that the State
scaffolding regulations, made after
the
Commonwealth's acquisition,
did.
not apply. in "places acquired
by
the
Commonwealth
for
public
pur-
poses"
within
the
meaning
of
section
52(i.)
of
the Constitution.
Section
52(i.)
of the Constitution
provides
as follows:-
52. The
Parliament
shall,subject
to
this Constitution, have
exclusive
power
to make laws
for
the peace,
order,
and
good
government
of
the
Commonwealth
with
respect
to---
(i)
The
seat
of government
of
the
Commonwealth,
and
all places
acquired
by
the
Commonwealth
for
public purposes.
The
majority
in
Worthing
reached
its conclusion notwithstanding
that
the
State regulations purported to apply generally
throughout
the
State
and
not
specifically
in
relation
to
any
Commonwealth
place
or
places.
Even
if
the
decision
in
Worthing
had
only
affected
State
scaffolding
regulations .and similar laws concerning
the
physical
condition
of
Com-
monwealth places, there
would
still have
been
asignificant
gap
in
the
laws operating there. Accordingly,
soon
after
~hedecision
in
Worthing,
the
Standing Committee of Common\vealth·and State
Attorneys-General
announced
that
draft
legislation
would
be
prepared
to
restore retro-
spectively
the
.position that,
ever
since 1900, had been assumed
by
Commonwealth
and
State Governments
to
be
the law.2
*B.A. (Oxon.), LL.B.
(Tas.);
Practitioner
of
the Supreme Court
of
Tasmania;
Senior Assistant Secretary,
AdvisingsBranch,
Attomey-Generars Department,
Canberra. .
The
views in this article are· expressed as
the
personal views
of
the author, and
are
not
necessarily those
of
the Department.
1(1970) 44 A.L.I.R.
230-
(Barwick C.J., Wi
nd
eyer, Menzies and Walsh
IJ.;
dissenting judgments were delivered by McTieman, Kitto and 'Owen
II.).
2The West Australian,
11
July 1970,14.
263
The
first method suggested by Barwick
e.J.
has
now
been
followed
by
the
•Commonwealth Parliament
in
the .Commonwealth Places
(Application of
Laws)
Act
1970 (referred to in this article as
"the
Act"
or
"the
.·Commonwealth
Act")
which received·
the
Royal
Assent on
11
November 19704and took effect
on
30 November
1970
with
344
A.LJ.R.
230, 23·5-236.
See
also
at
243 per Menzies J.,
and
at
247
per Windeyer J.
("
...
a
short
Commonwealth Act . . . providing
that
the
laws
of
each
State, from time
to
time in force, should have full
force and effect in all places already acquired,
or
acquired in the future,
by
the
Comm();:~ealth,
which are within the geographical limits
of
.
that
State, save in so
far
as any such State law is inconsistent with
any
Com-
monwealth law
or
is.
incompatible with the conduct by the Common-
wealth
of
its lawful purposes carried
on
in
any
such place.")
4-Act No.
121
of
1970.
No
doubt, the Parliament will need to legislate
to·
fill
avoid
which adecision in the sense of
my
opinion will. have disclosed.
But it
can
do
so
referentially and without delay
or
difficulty merely
by
continuing
by
dint
of
Commonwealth law, the terms
of
State
legislation which would
be
applicable
if
the place
or
places so .
acquired
or
for
that
matter
to
be
acquired
had
remained within
the legislative jurisdiction of the State legislature.
By
suitable
words, amendm.ents of
that
State law
made
at
any time after
acquisition could also
be
made
operative referentially. Or,
on
the
other hand, the Parliament
may·
prefer itself to legislate its own
code
of
behaviour for places acquired for public purposes.3
[VOLUME
4
Federal
Law
Review
This announcement implied that,
so
far as constitutionally· possible,
Commonwealth laws would be enacted with the same effect as any
State laws excluded by section
52(L);
However, as appears from the
subsequent legislation itself, complete assimilation might
not
be
possible,
since there might
be
some la\vs validly enacted
by
the
States for
non-'
Commonwealth places
that
the Commonwealth could
not
constitution-
ally·
enact.
For
example, tl]e Commonwealth probably could not, in
view
of
section 116
o·f
the
Constitution, apply
in
Commonwealth places
the provisions
of
aState law imposing any form of religious observance.
Moreover,
the
restoration
of
the
pre-Worthing ·situation also implied
that
the Commonwealth laws would
be
administered
by
State authorities,
and
adjudicated
upon
by
State courts, as if they were still State laws.
But
the imposition
of
administrative duties upon State authorities, and
the
assimilation
of
federal jurisdiction
under
the applied provisions
to
State jurisdiction, clearly involved some complex problems.
In
Worthing itself, several justices indicated briefly how the main
problems arising from the decision might
be
solved.
For
example,
Barwick C.J. said:
264
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