The Secretary, Home and Territories Department, has forwarded the following memorandum for advice:

I forward herewith the following documents in regard to the case Commonwealth v. Holmes which was brought before the Local Court of Darwin in June last:

1. Copy of the Magistrate’s Notes;
2. Copy of the Magistrate’s Judgment;
3. Copy of a report by the Crown Law Officer, dated 26th June, 1926.

Will you kindly furnish me with advice in regard to the points raised by Mr. Barratt for the defendant in support of his application for a non-suit?

The action referred to was the recovery of fees payable under the Slaughtering Regulations in respect of certain stock slaughtered by the defendant.

Mr. Barratt asked that the plaintiff should be non-suited on the following grounds:

• 1st. On grounds that the person who is entitled to bring this action is not before the Court.
• 2nd. The collection of Slaughtering Fees in Hundred of Bagot depends on the person inspecting being a veterinary surgeon, or a competent or qualified meat inspector. The plaintiff has failed to prove that Mr. Tivendale is a qualified meat inspector.
• 3rd. That the Administrator had no power to make these regulations. That section 26 of the Slaughtering Ordinance 1923 is ultra vires of section 13 of the Northern Territory Administration Act 1910, and if section 26 is ultra vires and bad, the regulations made under that section are also ultra vires, and there can be no claim made against defendant.

Dealing with the first ground, Mr. Barratt distinguished between the general power of the Commonwealth to legislate under section 51 of the Constitution, and the power to legislate for the government of territories under section 122. He contended that ‘the Commonwealth of Australia is distinct when it deals with Federal matters and with Territory affairs’, and that section 61 of the Judiciary Act is concerned only with suits brought in the Federal capacity, and not with suits brought under its home capacity; that section 61 does not touch Territorial matters, and was not intended to. In support of this argument, he also mentioned the fact that the Northern Territory was not a territory of the Commonwealth when the Judiciary Act was passed, and that the Supreme Court Ordinance 1920⁽¹⁾ provides that claims against the Commonwealth may be brought in the Supreme Court of the Northern Territory, whereas the Judiciary Act provides that such claims may be brought in the High Court or the Supreme Court of the State in which the claim arose. He therefore contended that the information should have been laid under the South Australian law in force in the Territory.

The distinction drawn by Mr. Barratt was probably based on the distinction made by the High Court in The King v. Bernasconi (19 C.L.R. p. 629). In this case, the Court considered the question whether section 80 of the Constitution applied to Papua, and Griffith, C.J., stated his view of the law as follows (at p. 635):

In my judgment, Chapter III (of the Constitution) is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories. Section 80 therefore relates only to offences created by the Parliament by statutes passed in the execution of those functions, which are aptly described as ‘laws of the Commonwealth’. The same term is used in that sense in section 5 of the Constitution Act itself, and in sections 41, 61 and 109 of the Constitution. In the last mentioned section it is used to contradistinction to the law of a State. I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a State.

The circumstances of the present case differ in some important respects from those in Bernasconi’s case. The question determined in that case concerned the application of section 80 of the Constitution to Papua, whereas the question now raised concerns the application of section 61 of the Judiciary Act to the Northern Territory. Consequently, the present case is not governed by Bernasconi’s case.

The distinction drawn in Bernasconi’s case between ‘laws of the Commonwealth’ (passed under section 51 of the Constitution) and laws passed in pursuance of section 122 of the Constitution is, I think, applicable to the Northern Territory, but this distinction does not, in my opinion, affect the application of section 61 of the Judiciary Act to the Northern Territory. That section reads as follows:

Suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney-General or by any person appointed by him in that behalf.

Although this section appears in the Judiciary Act, it does not necessarily follow that it was passed under the powers conferred by Chapter III of the Constitution, which relates to the Judicature. On the contrary, I can find no provision in that Chapter under which it could have been enacted. There is no doubt, however, that section 51(xxxix) confers power to enact the provision, and section 122 confers power to enact it in relation to the Territories.

The section deals with ‘suits on behalf of the Commonwealth’. It contains no other limitation in regard to the class of suits to which it applies, and, in the absence of any implied limitation, it must be read as applying to all suits on behalf of the Commonwealth.

Mr. Barratt has stated that the section was not intended to apply to suits arising under Territorial legislation, but I am unable to find anything in the report of his remarks to sustain this statement. Prima facie the section applies to all suits on behalf of the Commonwealth, and the onus rests of those who assert that there is an implied limitation to prove its existence.

I cannot agree that any such implication arises from the fact that Ordinance No. 9 of 1920 provides that claims against the Commonwealth in respect of the Northern Territory may be brought in the Supreme Court of the Northern Territory. This alteration of the law was merely consequential upon the transfer of the Territory to the Commonwealth. Prior to that transfer, claims against the Commonwealth in respect of the Territory could be brought in the Supreme Court of South Australia. After the Territory ceased to be part of South Australia, this was no longer possible, and Ordinance No. 9 of 1920 merely conferred on the Supreme Court of the Northern Territory the jurisdiction previously exercised by the Supreme Court of South Australia.

I am of opinion, therefore, that section 61 of the Judiciary Act applies to all suits on behalf of the Commonwealth, however arising.

I suggest, however, that in view of the decision given in the case under consideration, which may be quoted as authority in future cases, and of the Crown Law Officer’s remarks in regard to the prospect of obtaining a more satisfactory decision from the Supreme Court of the Northern Territory, it might be advisable to insert a general provision in the Supreme Court Ordinance in regard to suits on behalf of the Commonwealth.⁽²⁾

The second ground on which Mr. Barratt claimed that the plaintiff should be non-suited was not upheld by the court, and I do not propose to deal with it.

The third ground relied on by Mr. Barratt raises the question of the power of the Governor-General to insert in an Ordinance a provision authorising the Minister or the Administrator to make regulations for giving effect to the Ordinance.

This question was considered in regard to New Guinea in my Opinion dated the 10th December, 1924 (Opinion No. 254 of 1924),⁽³⁾ and the principles set out in that Opinion apply equally in regard to the Northern Territory.

I am of opinion that section 26 of the Slaughtering Ordinance is within the powers conferred by the Northern Territory Administration Act 1910, and the Slaughtering Regulations are valid.

I see no legal objection to the amendment of the Slaughtering Ordinance on the lines suggested in the Crown Law Officer’s memorandum of the 26th June, 1926.

[Vol. 23, p. 170]

(1) Which inserted s 21A into the Supreme Court Ordinance 1911.

(2) See Supreme Court Ordinance (No. 2) 1927, s 2, which inserted s 21G into the Supreme Court Ordinance 1911.

(3) See Opinion No. 1366.