HISTORY OF PROVISIONS

The Constitution of the United States provides (Article 1, section 8, sub-section 17) that:

The Congress shall have power to . . . exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States. . .

The Commonwealth Bill of 1891 contained the following provisions:

Chapter I, section 53:

The Parliament shall . . . have exclusive legislative power . . . with respect to the following matters:-

(2) The Government of any territory which may by surrender of any State or States and the acceptance of the Parliament become the seat of Government of the Commonwealth . . .

Chapter VII, section 1:

The seat of Government of the Commonwealth shall be determined by the Parliament. Until such determination is made, the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the States, or, in the event of an equal division of opinion amongst the Governors, as the Governor-General shall direct.

In the Convention of 1897-8, the draft Bill as first prepared by the drafting committee adopted almost verbatim the above provisions of the 1891 Bill.

The 'legislative power' clause, by successive drafting amendments, was reduced by the Convention to the form in which it now stands-the words descriptive of the mode of acquisition being omitted.

In the 'seat of Government' clause several amendments were proposed. First of all, at Adelaide, Mr J. T. Walker proposed to insert, at the end of the first paragraph, the words 'and shall be within an area which shall be federal territory'. This was negatived. At the Melbourne session, a suggestion by the Legislative Council of N.S.W., that the seat of Government should be at Sydney, was negatived.

Later on, an amendment by Sir George Turner to insert 'and shall be within federal territory' was carried, a further amendment by Mr Lyne, to add 'and in the colony of N.S.W.' being negatived. Subsequently, as a drafting amendment, the words 'territory vested in the Commonwealth' were substituted for 'federal territory'.

The clause as passed by the Convention read as follows:

The seat of Government of the Commonwealth shall be determined by the Parliament and shall be within territory vested in the Commonwealth. Until such determination the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the States, or, in the event of an equal division of opinion among the Governors, as the Governor-General shall direct.

After the failure of the Convention Bill to poll the statutory 80,000 votes in N.S.W., the Legislative Assembly of N.S.W., in the resolutions submitting, for the consideration of the other Colonies, a series of propositions for the amendment of the draft Constitution, included the following:

The Capital of the Commonwealth.-That clause 124 should be amended, and provision made in the Bill for the establishment of the federal capital in such place within the boundaries of N.S.W. as the Federal Parliament may determine.

The Legislative Council of N.S.W. asked that the capital should be in Sydney.

The Premiers' Conference of 1899 amended the clause to read as follows:

The Seat of Government of the Commonwealth shall be determined by the Parliament and shall be within territory which shall have been granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth, and if New South Wales be an original State shall be in that State and be distant not less than one hundred miles from Sydney.

Such territory shall contain an area of not less than one hundred square miles and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

The report of the Conference contained the following passage:

It is considered that the fixing of the site of Capital is a question which might well be left to the Parliament to decide; but in view of the strong expression of opinion in relation to this matter in New South Wales, the Premiers have modified the clause, so that while the capital cannot be fixed at Sydney, or in its neighbourhood, provision is made in the Constitution for its establishment in New South Wales at a reasonable distance from that city.

Accordingly the request of New South Wales, that the capital should be in that Colony, was granted; but with two conditions which Victoria insisted upon: (1) that it should not be within 100 miles of Sydney; (2) that the Parliament should sit at Melbourne until it met at the seat of Government.

In the Imperial Parliament, the words 'if New South Wales be an Original State' and 'if Victoria be an Original State' were omitted.

DETERMINATION OF SEAT

It has been contended that the Constitution does not give the Federal Parliament an independent power to determine the site of the Federal capital, or to acquire the territory in which it is to be situated. To support this contention, it has been argued:

1. that before the seat of Government is 'determined' under section 125, the territory within which it is to be must first have been 'granted to or acquired by the Commonwealth'; and
2. that the power of the Federal Parliament to 'determine' the seat of Government is merely a power to determine in what part of the territory so granted or acquired the seat of Government shall be situated.

This contention rests wholly upon three assumptions:

1. that the words 'shall have been granted or acquired' have reference in point of time to the words 'shall be determined';




2. that the 'seat of Government' is to be a definite smaller area contained within the larger 'territory';




3. that the Constitution does not empower the Parliament to 'acquire' the territory without surrender of the territory by the State.

None of these assumptions, it is submitted, is justifiable.

1. The words 'shall have been granted or acquired' clearly refer, not to 'shall be determined', but to 'shall be within territory'. The Constitution does not require that the territory shall have been granted or acquired before the seat of Government shall be determined-which would be absurd-but that the territory shall be granted or acquired before the seat of Government shall be within the territory-i.e. before the establishment of the seat of Government. That this is the grammatical, as well as the common-sense interpretation, is shown by the following analysis:

The seat of Government of the Commonwealth-

1. shall be determined by the Parliament, and




2. shall be within territory which shall have been granted to or acquired by the Commonwealth.




The subject of the sentence-'the seat of Government of the Commonwealth'-has two predicates; and by repeating the subject before the second predicate it is seen that the whole sentence is exactly equivalent to the following two sentences:

1. The seat of Government of the Commonwealth shall be determined by the Parliament.
2. The seat of Government of the Commonwealth shall be within territory which shall have been granted to or acquired by the Commonwealth.

The subject of 'shall have been' is the relative pronoun 'which'. The antecedent of 'which' is 'territory'-a word forming part of the second predicate-'shall be within territory'.

This disposes of the argument that the grammatical reading of section 125 requires that the grant or acquisition of the territory must precede the determination of the

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seat. On the contrary, the order of the sentence implies that determination of the seat is the first step, to be followed by the establishment of the seat in territory which, before the establishment, is to be granted or acquired. The grammatical, as well as the logical order, is therefore:

1. determination of the seat of Government;
2. grant or acquisition of territory within which the seat of Government is to be;
3. establishment of the seat of Government in the territory.

2. There is nothing in the Constitution to suggest any distinction, as to area, between the 'seat of Government' and the 'territory'. The provision that the seat of Government shall be 'within' territory granted to or acquired by the Commonwealth does not mean that a particular portion of the territory is to be the seat of Government, and that the rest of the territory is not. The 'seat of Government' is the Federal capital from the point of view of locality; the territory is the same Federal capital, looked at from the point of view of jurisdiction. The locality of the Federal capital is to be within the exclusive jurisdiction of the Commonwealth. This is borne out by section 52, which gives the Federal Parliament exclusive power to make laws with respect to 'the seat of government of the Commonwealth'.
3. The third assumption-that the Parliament cannot 'acquire' the territory except by consent of the State-is dealt with elsewhere-ACQUISITION OF TERRITORY. For the present, it is enough that section 125 in clear words leaves the determination of the seat of Government to the Parliament of the Commonwealth, and makes no mention whatever of the Parliament of the State of New South Wales. It is submitted that the clear intention of the section is that the Federal Parliament is to determine the locality of the Federal capital; and that a construction which would restrict the scope of that determi-nation to a mere selection of a building site, after the territory has been acquired, is not only forced and unnatural, but is based on a wrong grammatical construction.

The view above taken is also borne out by the history of the clause.

The clause as adopted by the Convention merely provided that 'the seat of Government of the Commonwealth shall be determined by the Parliament and shall be within territory vested in the Commonwealth'. It is clear that if it had been enacted in that form, the power of the Parliament to determine the seat of Government would have been unfettered.

But after the first referendum, the Legislative Assembly of N.S.W. asked that provision should be made in the Bill 'for the establishment of the federal capital in such place within the boundaries of N.S.W. as the Federal Parliament may determine'. At the Premiers' Conference of 1899 this was agreed to, with the counter-amendment that the capital should not be within 100 miles of Sydney. These were the only substantive amendments intended to be made in the first paragraph of the clause-and, as it was not yet certain that either N.S.W. or Victoria would be original States, they were expressed subject to that condition. The paragraph was accordingly amended by inserting the words [emphasised] as follows:

The Seat of Government of the Commonwealth shall be determined by the Parliament and shall be within territory which shall have been granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth, and if New South Wales be an original State shall be in that State and be distant not less than one hundred miles from Sydney.

The meaning of the words 'granted to or acquired by the Commonwealth' is dealt with under the heading ACQUISITION OF TERRITORY. That they were intended to be machinery provisions only, and not to affect the provision that the site of the Federal capital should be selected by the Federal Parliament,b is clear from the facts:

1. that the request of the Legislative Assembly of N.S.W. was that the capital should be in such place in N.S.W. as the Federal Parliament should determine;
2. that the Premiers' Conference left untouched the words of the clause relating to determination by the Parliament;
3. that no words were introduced to indicate determination, or any share in determination, by any other authority-and indeed no other authority is even mentioned in the paragraph as it stands; and
4. that the report of the Conference does not hint at any alteration having been made in the authority which is to determine the site.

ACQUISITION OF TERRITORY

How is the territory, within which the seat of Government is to be, to become Commonwealth territory?

Section 125 provides that the territory 'shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth'.

(It is assumed, as the better construction, that it is 'territory', and not 'the seat of Government' which is the subject of 'shall be vested in and belong to'-though there is a grammatical ambiguity. See analysis in APPENDIX.)

It should be noted that what is to be 'granted' or 'acquired' is territory, not property-i.e. territorial rights, or rights of jurisdiction, or sovereignty, over the area-not necessarily proprietary rights in the estates held by individuals in land comprised within that area. The proprietary rights of land-owners in the territory can be acquired whenever necessary, under the Property for Public Purposes Acquisition Act1901, or other laws passed under the powers conferred by section 51 (xxxi) of the Constitution.

Apparently there are two ways in which the area, which is now State 'territory', may become Commonwealth 'territory'. It may be either (1) 'granted to the Commonwealth' (scil. by the State) or (2) 'acquired by the Commonwealth' (scil. from the State).

It is submitted that the first method refers to surrender to and acceptance by the Commonwealth and that the second refers to acquisition by the Commonwealth under a power of 'eminent domain'-without any grant or surrender by the State.

This construction is supported by the following considerations:

1. 'Acquired', used with respect to 'property' in section 51 (xxxi) and section 85 (ii) of the Constitution, clearly means acquired at the will of the Commonwealth only-without the necessity for any State consent.
2. The whole scope of the section shows that it is intended to give the Commonwealth Parliament power to determine and establish the seat of Government-within the limits of locality prescribed by section 125; there is certainly no express provision that that power shall be controlled in any way by the State Parliament, and to imply such a provision would be to render nugatory-or at least to enable the Parliament of N.S.W. to render nugatory-the power of the Federal Parliament to determine the site. The Constitution cannot mean that the Parliament of the Commonwealth is to determine where the capital shall be, and the Parliament of N.S.W. may determine where the capital shall not be.
3. The history of section 125 (see above HISTORY OF PROVISIONS) shows that the section, before amendment by the Premiers' Conference in 1899, placed the whole determination in the hands of the Commonwealth Parliament; and that it was amended to comply with the request of the N.S.W. Legislative Assembly that provision should be made 'for the establishment of the federal capital in such place within the boundaries of N.S.W. as the Federal Parliament may determine'.
4. If-as I submit is not the case-the words of section 125 ('territory which shall have been . . . acquired') are not of themselves enough to confer upon the Federal Parliament power to acquire, an express legislative power for that purpose is given by section 51 (xxxix), which empowers the Federal Parliament to make laws with respect to 'Matters incidental to the execution of any power vested by this Constitution in the Parliament . . . or in the Government of the Commonwealth'. If the power of determining the seat of Government is vested in the Commonwealth Parliament, and the territory of the seat of Government is to be acquired by the Commonwealth, surely the power to make laws for the acquisition of the territory is incidental to a power vested in the Commonwealth.

The second paragraph of the section is undoubtedly difficult to construe; but the difficulty is not diminished by reading unnecessary difficulties into the first paragraph.

First, the territory is to contain 'not less than one hundred square miles'-but no maximum area is fixed. It may be asked whether the Commonwealth Parliament has power to appropriate, for the seat of Government, an unlimited area of the State. The answer is-no. The power to acquire is limited to what is reasonably necessary to the purpose for which the acquisition is needed. The Commonwealth Parliament is entitled to take 100 square miles at least; it is entitled to take so much more-if any-as can be shown to be reasonably necessary for the purpose of the seat of Government; but it is not entitled-on the pretext of acquiring a site for the Federal capital-to appropriate a half, or a fourth, of the State of N.S.W. If it became necessary to acquire a site without the consent of the State of N.S.W., it would, in the last resort, be for the High Court to determine whether the area taken was fairly taken in pursuance of the power to establish the seat of Government.

Next, it is provided that 'such portion thereof (query of the 'territory' or of the 'area'?) as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

This is the most difficult part of the section. The granting, or acquisition, of the territory as a whole has already been dealt with in the first paragraph; and here is a further provision that there 'shall be granted' to the Commonwealth without payment, such portion, either of the 'territory' or of the 'area' which the territory contains, 'as shall consist of Crown lands'. The purpose of this provision is evidently to deal with the question of compensation; not to prescribe a different mode of acquisition in the case of 'Crown lands'-a term which is not defined. The distinction between 'Crown lands' and lands which are not Crown lands-as the terms are used in State laws-is a distinction as to property, not as to territory. The most reasonable view of the provision is that it means that the State shall not receive any payment for its proprietary rights in the area ceded. It was intended that the proprietary rights of the State, as well as its territorial rights, should pass to the Commonwealth-without other compensation than the advantage of having the Federal capital established in the State. But seeing that private proprietors in the area would have to be compensated if their property was taken, and in view of section 51 (xxxi) of the Constitution, it might have been argued,in the absence of some such provision as this, that where the State had not parted with proprietary rights-i.e. in the case of 'Crown lands'-the State should be compensated for the value of the fee simple. These words therefore mean that-though individuals are to be compensated for the proprietary rights given to them by the State and taken from them by the Commonwealth-the State is not to be compensated for its proprietary rights in unalienated land.

The word 'thereof must be taken to refer to 'area'-which is the better reading grammatically as well as logically and 'area' is quite capable of a proprietary significance.

As for the words 'shall be granted'-it is submitted that they mean 'shall by force of this Act be granted'. When the territory has been 'granted to or acquired by the Commonwealth', it is not necessary that the State should make a conveyance of its property in the Crown lands within the territory. The words are clearly imperative; and it is hard to suppose that the Constitution would have directed that the State 'shall' grant the lands, which would have been a cumbrous way of bringing about a necessary result. If that had been intended, the 'State of N.S.W.' would surely have been mentioned.

Moreover, the distinction between 'shall have been granted to or acquired' in the first paragraph, and 'shall be granted' here, is significant, and cannot be accounted for except on this construction.

It is submitted that-though the provision is not happily worded-it is reasonably capable of this construction. It is also submitted that no other construction which can be suggested is equally reasonable or equally harmonious.

Appended is an analysis of the whole section, explanatory of the view taken in this memorandum.

APPENDIX

Analysis of section 125

The seat of Government of the Commonwealth-

1. shall be determined by the Parliament, and
2. shall be within territory which-
1. shall have been granted to or acquired by the Commonwealth, and
2. shall be vested in and belong to the Commonwealth, and
3. shall be in the State of New South Wales and be distant not less than 100 miles from Sydney.

Such territory shall contain an area of not less than 100 square miles, and such portion thereof (of the area) as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

The Parliament shall sit at Melbourne until it meet at the seat of Government.

[Vol. 4, p. 470]