The prerogative power of the Commonwealth executive in the ACT extends to works on Commonwealth land including commercial and tourist facilities, provided funds are appropriated, and statutes conferring specific powers do not necessarily limit the broader prerogative.
Later decisions that cite Johnson v Kent
Decisions cited by Johnson v Kent
JOHNSON v. KENT [1975] HCA 4; (1975) 132 CLR 164
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies, Stephen(3) and Jacobs(4) JJ.
(THE RIGHT HONOURABLE MR. JUSTICE MENZIES died before judgment was delivered
in this case.
CATCHWORDS
Constitutional Law (Cth) - Territories - Australian Capital Territory - Executive power of Commonwealth - Proposal to erect telecommunications tower incorporating restaurant and tourist facilities - No statutory authority - Whether within executive power - Whether executive power diminished by statute - Wireless Telegraphy Act 1905-1966 (Cth) - Broadcasting and Television Act 1942-1969 (Cth) - Post and Telegraph Act 1901-1970 (Cth), s. 80.
HEARING
Sydney, 1974, May 1,2;DECISION
1975, February 17.
2. The funds wherewith to construct the tower have been appropriated out of
the consolidated revenue of the Commonwealth but revenue
derived from the
restaurant and viewing facilities is expected to reimburse the Commonwealth in
due course for the whole cost of
the construction of the tower. (at p168)
3. The basic challenge made by the present respondents - whom I shall call
the objectors - as plaintiffs in the Supreme Court of
the Australian Capital
Territory and as cross-appellants in this Court was and is that the
Commonwealth lacks power to erect this
tower on Black Mountain incorporating a
restaurant and viewing facilities. (at p168)
4. The only arguments for the objectors before this Court are, firstly, that
any relevant source of power to construct such a tower
must be statutory and,
secondly, that the only possible source of such statutory powers are three
Acts relating to the powers of
the Postmaster-General (viz. the Post and
Telegraph Act, 1901-1970, the Wireless Telegraphy Act, 1905-1966 and the
Broadcasting and
Television Act, 1942-1969) and that no such power is to be
found in any of the three Acts. (at p168)
5. It is clear that there is express statutory power for the
Postmaster-General to erect structures for "telegraphic, telephonic
and other
like services"; see, for example, s. 80 of the Post and Telegraph Act. Whilst
I am ready enough to assume, if it be relevant,
that the provision of
"telegraphic, telephonic and other like services" is the principal purpose of
this tower, it is plain that
this is not its sole purpose. A statutory power
to erect any structure for "telegraphic, telephonic and other like services"
is,
of itself, insufficient, in my opinion, to authorize the erection of a
tower of which an integral part goes beyond making provision
for such
services. This is so even though what is extraneous to the purpose of
providing such services will afford reimbursement
for the cost of the tower.
It is not sound doctrine that the Commonwealth may do anything that will help
it to reimburse itself for
moneys lawfully spent for its purposes. After
examining the Acts relating to the powers of the Postmaster-General to which
the objectors
have referred, I am unable to find in any of them a power which
covers the building of this tower incorporating a restaurant and
viewing
facilities. Thus, if the cross-appellants are correct in their primary
submission that statutory authority for the erection
of such a tower is
necessary, their secondary submission would be made out. (at p169)
6. It is important to point out that we are not here concerned directly or,
in my opinion, indirectly with what the Commonwealth
may do elsewhere than in
the Australian Capital Territory. Accordingly, I do not feel called upon to
express any opinion as to the
power of the Commonwealth executive to perform
works in parts of Australia other than the Australian Capital Territory
without statutory
authority. It is enough for the disposal of this matter to
decide the power of the executive in the Australian Capital Territory
relevant
to the subject-matter of the suit. (at p169)
7. Power to make laws for the government of the Australian Capital Territory
is derived from s. 122 of the Constitution. Section 61 in relation to the
Territory in my opinion includes traditional executive power broadly embraced
in the description of "the prerogative"
exercisable in the Territory. Just as
the legislative power for the Territory derived from s. 122 is non-federal in
the sense I used that description in Spratt v. Hermes (1965) 114 CLR at p 242
, so it seems to me that the executive
power in relation to the Territory is
not federally restrained. Consequently, whatever the position in other parts
of Australia,
the executive, unless its power is relevantly reduced by
statute, may in my opinion do in the Territory upon or with respect to land
in
the Territory anything which remains within the prerogative of the Crown. Here
the land, namely, Black Mountain, is the property
of the Commonwealth having
been vested in the Commonwealth as part of the Australian Capital Territory by
the Seat of Government
Acceptance Act, 1909-1938. But what the executive does
upon and in respect of such lands will be done by virtue of the prerogative
and not by virtue of proprietorship. There can be no objection in my opinion
to the Commonwealth, in the absence of any statutory
provisions, establishing
parks, gardens, sports grounds, tourist facilities and the like upon land it
possesses in Canberra. But,
of course, funds to be expended on any such
activity must be the subject of due appropriation according to law (s. 83 of
the Constitution). Such a conclusion would cover the erection in the present
circumstances of a restaurant and viewing facilities, assuming that there
is
no relevant statutory impairment of the prerogative. (at p170)
8. The question therefore remains whether there is any Act limiting the
exercise of the prerogative in the Australian Capital Territory.
The only Acts
which were mentioned in argument were the three Acts to which I have already
referred, viz. Post and Telegraph Act,
1901-1970, the Wireless Telegraphy Act,
1905-1966 and the Broadcasting and Television Act, 1942-1969. But none of
these, in my opinion,
relevantly impinges on the prerogative exercisable in
the Australian Capital Territory. Section 80 of the Post and Telegraph Act
was
specially relied on. That section although in terms conferring an exclusive
privilege is apt, in my opinion, to confer authority
to do the things which it
describes; but the authority is limited to those things. But in so far as it
provides authority, it does
so where no like or greater authority already
exists. It is not intended to limit any existing authority. Consequently, it
is inapt
to limit or confine the exercise of the prerogative in the Australian
Capital Territory. Accordingly, the objectors' arguments based
on
Attorney-General v. De Keyser's Hotel [1920] UKHL 1; (1920) AC 508 must be rejected. (at
p170)
9. On 19th September 1973, the Governor-General in Council accepted a
recommendation from the Minister for Works, as follows:
"Construction of Communication Tower at Black Mountain
in the Australian Capital Territory.
Recommended for the approval of His Excellency theThe construction of the tower incorporating the restaurant and viewing facilities was then expressly authorized, even if it be there had been no earlier formal authority from the Governor-General in Council for its construction. (at p171)
Governor-General in Council, that, pursuant to all powers him thereto
enabling, he authorise the Minister for Works to proceed to
construct on land owned by the Commonwealth of Australia at
Black Mountain in the Australian Capital Territory the
communications tower and associated revenue producing facilities
referred to in the report of the Parliamentary Standing
Committee on Public Works dated 13th July 1972."
10. The question raised by the cross-appeal, namely, whether the Minister for
Works armed with the minute of 19th September 1973
has power to erect on Black
Mountain the communications tower and associated revenue-producing works
referred to in the report of
the Parliamentary Standing Committee, should be
resolved in the affirmative. The submission of the appellants that the
Minister may
only construct the tower with the authority of Parliament
expressed in the Act should be rejected. (at p171)
11. Before disposing of the matter I should observe that the hearing of this
appeal and cross-appeal took an unusual course, no
doubt due in some measure
to the form of the judgment of the learned trial judge. His Honour, in his
reasons for judgment, made what
were described as a number of "findings" which
were not reflected in the declarations that he made. The appellants sought to
appeal
against some of these findings. It was intimated by the Court to
counsel for the appellants that such a course was not open to the
appellants,
only the declarations being appealable. These declarations were as follows:
"1. That if, subject to the second declaration hereunder, theAccordingly, the power of the Commonwealth to erect a tower - save to the extent to which it was affected by the second declaration - was not in issue upon the appeal. Counsel for the appellants, therefore, having informed the Court that, after the judgment under appeal had been given, the National Capital Development Commission had, by reason of action taken under s. 12 of the National Capital Development Commission Act, approved the erection of the tower, intimated that in these circumstances it was not necessary to proceed further with the appeal in support of the second declaration. (at p171)
tower were constructed and operated for restaurant and tourist
purposes without adequate arrangements being made to control
traffic to ensure reasonable access by road to the Black
Mountain Reserve and reasonable use of the road for passage by
persons not desiring to visit the tower a public nuisance would
be committed by those so operating it.
2. That the construction of the Post Office tower on the
summit of Black Mountain as proposed without the approval
and against the will of the National Capital Development
Commission would constitute an exercise in undertaking and
carrying out the planning, development and construction of the City
of Canberra as the National Capital of the Commonwealth of
Australia and as such would be an unlawful usurpation of the
functions of the National Capital Development Commission in
contravention of the National Capital Development
Commission Act 1957, and ought to be restrained."
12. I would observe that the first declaration, which relates to arrangements
made for the control of traffic in the vicinity of
the tower, does hardly seem
to have been a matter put in issue by the pleadings. However, the appellants,
having informed the Court
they understood that the Minister intended to make
proper provision for the control of such traffic in the vicinity of the tower,
did not seek to canvass the declaration. Accordingly, the appeal as to that
declaration will be treated as having been withdrawn.
In these circumstances
it would seem sufficient to dismiss the appeal without expressing any view as
to the propriety of the declarations.
Thus, the cross-appeal relating to the
powers of the Commonwealth to erect the tower became the only matter that was
argued in the
proceedings. The cross-appeal should be dismissed for the
reasons I have given. (at p172)
McTIERNAN J. I am in agreement with the Chief Justice's reasons for judgment
and with his conclusions in this case. Accordingly
I would dismiss the appeal
and the cross-appeal. (at p172)
STEPHEN J. In this appeal and cross-appeal all that now arises for decision
is the cross-appellants' contention that there exists
no power to erect, as
proposed, a communications tower and associated facilities on land owned by
the Commonwealth of Australia on
Black Mountain in the Australian Capital
Territory. (at p172)
2. I have had the advantage of reading the reasons for judgment of the Chief
Justice; I would wish to dispose of this matter upon
the narrow ground that
what is here in issue is the proposed construction of works within the
Australian Capital Territory and since
I agree with the reasons for judgment
of the Chief Justice I would accordingly dismiss both appeal and cross-appeal.
(at p172)
JACOBS J. This appeal arises out of the proposal to build a
telecommunications tower on the summit of Black Mountain overlooking
the city
of Canberra. The proposal has led in these proceedings to what may be regarded
essentially as an environmental dispute,
the proposal being criticized by many
on aesthetic grounds, visual and architectural, and on ecological grounds
because of the proximity
of the proposed tower to the natural reserve on Black
Mountain. Burley Griffin in his Plan of October 1913 stated:
"Ainslie, Black Mountain, Mugga Mugga, rising almost 700
feet (too lofty and too exposed for building purposes), afford
objective points of prospect to terminate great garden and water
vistas, with conspicuous positions for future commemorative
monuments, and conversely offer points of outlook over a city
arranged in an orderly way with reference to them." (at p172)
2. The Post Office Tower is not proposed as a commemorative monument, but
would be a striking construction on the skyline. Hence
the controversy. Some
see it as a desecration of the skyline; others see it as an exciting structure
reflecting the century and the
society in which we live. The lines of battle
are not unique. But the substance of the battle is not one which easily lends
itself
to determination by the courts along established avenues of legal
decision. So what was at base a dispute involving community attitudes
and
purposes, a political dispute in the broad sense, had perforce when it was
brought before the Court to turn itself largely into
a technical legal dispute
on the question whether there was legal authority to erect the structure.
However, this was not altogether
so. In two ways the plaintiffs sought to have
something of the environmental dispute made the subject of judicial
determination.
First, it was claimed that under the National Capital
Development Commission Act 1957-1960, the approval of the Development
Commission
was necessary as it alone could exercise the function of
undertaking and carrying out the planning, developing and constructing of
the
national capital and that there was no such approval. Smithers J. found in
favour of the plaintiffs on this claim and made a
declaration accordingly.
Secondly, it was claimed that the erection of the tower would constitute a
public nuisance and the grounds
upon which this claim was based related mainly
to the effect which the tower would have on the visual appearance of the
capital's
surroundings, the effect on the ecology of the Black Mountain
Reserve and on the weight of traffic on the road to the summit. A mass
of
evidence was produced on these subjects and thus one objective of the
proceedings was met, namely, the marshalling and presentation
before the Court
of a large body of evidence whereby the objections of the plaintiffs as
citizens could be expressed. Smithers J.
found that the interest of even a
broad section of the community in the enjoyment of a particular skyline did
not constitute a right
in the public of such a nature that invasion of it
constituted a public nuisance. He also found that the matters of alleged
public
nuisance other than the matters of road access had not established a
case for relief, but he found that if the tower were constructed
and operated
for restaurant and tourist purposes without adequate arrangements being made
to control traffic to ensure reasonable
access by road to the Black Mountain
Reserve and reasonable use of the road for passage by persons not desiring to
visit the tower
a public nuisance would be committed by those so operating it.
He made a declaration in those terms. (at p173)
3. The appellants lodged a notice of appeal challenging the correctness of
both of the declarations, but on the hearing of the appeal
counsel for the
appellants informed the Court that they did not wish to argue the ground of
appeal relating to the power to erect
the structure in the absence of an
approval by the Development Commission. It is therefore unnecessary to
determine this question.
As to the other declaration which was made, the first
declaration in the order appealed from, the attitude of the appellants was
indeterminate. The appeal was not withdrawn nor was this ground formally
abandoned. It would be my opinion that the appeal in respect
of this
declaration should be allowed and the declaration set aside, but as the
majority of the Court is of the view that as a result
of the course taken at
the hearing of the appeal the ground was not pressed, I am not prepared to
dissent from that view. However,
I wish to state that in my opinion the
declaration cannot be supported. It is not a public nuisance to increase
traffic upon a highway.
Every member of the public has the right to use the
highway as such. The act of one user in so doing does not in law injure any
other
user, nor is the creation of an attraction by an owner of land so that
the number of users is increased a wrongful act. User of a
highway as such is
never an obstruction. There is an obstruction when a person uses a highway
otherwise than for passage and an attraction
of a crowd which congregates and
ceases to use the highway for passage may by causing such a congregation
result in a public nuisance
for which the attractor may be liable. The cases
to this effect which were relied on by the judge at first instance are not in
my
opinion applicable to a case where the attractor does no more than increase
the number of persons using the highway for the purposes
of passage. (at
p174)
4. Upon the cross-appeal I am of the opinion that the executive power of the
Commonwealth extends to the doing of acts upon its
own lands within a
territory surrendered by a State to the Commonwealth without any statutory
authority other than the necessary
appropriation of funds if those acts are of
the kind which lie within the prerogative of the Crown. The erection of a
restaurant
and viewing facilities on the lands in question fall within such a
category. I agree with the reasons expressed by the Chief Justice.
(at p174)
5. I am of the opinion that the appeal and the cross-appeal should be
dismissed. (at p174)
ORDER
Appeal and cross-appeal each dismissed with cost.