Does the 'separation of powers 'doctrine apply in the NT? Did the Aboriginals Ordinance 1918 (NT) ("the Ordinance violate the doctrine?

3 Judges (Brennan CJ, Dawson and McHugh JJ) stated that as a result of previous High Court cases, the doctrine does not apply in the NT. 3 Judges (Toohey, Gaudron and Gummow JJ) suggested that the doctrine should apply in the NT. However, they did not finally decide the issue, concluding that the power in the Ordinance to remove a child was not an exercise of judicial power, in light of the 'welfare' objective of the Ordinance and the (then) prevailing circumstances.

Is there to be implied in the Constitution a right to legal equality that limits the exercise of power in the NT? Did the Ordinance violate the implied right to equality?

4 Judges (Brennan CJ, Dawson, McHugh and Gummow JJ) stated that no right to equality limiting the exercise of power in relation to the NT can be implied in the Constitution. (The same result would be likely if the Ordinance were a State law-although Brennan CJ and Gummow J explicitly referred to s122 of the Constitution in considering the implication.) 2 Judges stated that there is a right to equality implied in the Constitution, but disagreed on the nature of the right. Toohey J stated the question to be asked is: 'When the Ordinance is analysed and placed in its historical setting, Is it reasonably capable of being seen as providing a rational and relevant basis for ... discriminatory treatment?' He preferred not to answer the question until a trial. Gaudron J stated the question to be asked is whether the discretionary powers of courts are' conditioned in such a way that they must be exercised in a discriminatory manner'. She concluded that the Ordinance did not violate this right.

Is there to be implied in the Constitution a right to freedom of movement and association or freedom of political communication that limits the exercise of power in the NT? Did the Ordinance violate the implied freedom of movement and association?

4 views offered on existence of implications: (1) Brennan CJ, Dawson, McHugh and Gummow JJ rejected any implication of freedom of movement and association in the NT. (2) Dawson and McHugh JJ also stated that the NT is not subject to the implication of freedom of political communication that otherwise limits the Commonwealth. (3) Brennan CJ assumed that the implication of freedom of political communication applies in the NT. (4) Toohey and Gaudron JJ stated that there is an implication of freedom of association and movement for the purpose of political communication.

3 views offered on whether a violation of the implication found to exist: (1) Brennan CJ stated that the Ordinance did not violate the implied freedom because it was not directed to political communication. However, any actions done pursuant to the Ordinance that unreasonably or needlessly impeded the right to political communication would have been invalid. (2) Toohey J stated that the Ordinance would have violated the implied freedom if it was 'disproportionate to what was reasonably necessary for the protection and preservation of the Aboriginal people' assessed by (then) prevailing standards, and preferred to await evidence at trial before reaching a final view. (3) Gaudron J stated that the Ordinance violated the implied freedom and was invalid because there was 'no basis on which it could be said that those provisions of the Ordinance which authorised action impairing the rights of Aboriginal people to move in society and to associate with their fellow citizens ... were in any way necessary for the protection or preservation of Aboriginal people'.

Is there to be implied in the Constitution a right to freedom from genocide that limits the exercise of power in the NT? Does the Ordinance violate the implied freedom?

5 Judges (Dawson, Toohey, Gaudron, McHugh and Gummow JJ) found that the Ordinance did not authorise any acts that were intended to destroy a racial group' and so would not violate any implied freedom from genocide. Brennan CJ stated that the Ordinance did not authorise acts for the purpose or intention of causing mental harm. Dawson J also stated that the effect of s122 of the Constitution was that there was no basis for an implication of freedom from genocide in the NT. Gaudron J stated that the exercise of power under the Constitution's s-122 Is subject to an implication that laws may not 'authorise gross violations of human rights and dignity contrary to established principles of the common law'.

Did the Ordinance violate the express protection of freedom of religion contained in the Constitution’s s 116 (ie a law must not prohibit the free exercise of religion)? Does s 116 of the Constitution limit the exercise of power in the NT?

On the question of whether the Ordinance violated the Constitution s1 16: 4 Judges (Brennan CJ, Dawson, Toohey and Gummow JJ) stated that there was no violation because, on its face, the purpose (ie end or object) of the law was not to prohibit religion. Gummow J (with whom Dawson J agreed on this point) and Toohey J stated that a different conclusion may be reached if extraneous materials admissible at trial revealed a purpose that violated s116. Gaudron J stated the Ordinance would be invalid by reason of s116 if (1) there was evidence that Aboriginal people had practices that could be characterised as a 'religion (eg association with others); (2) the Ordinance prevented those practices; and (3) either the Ordinance cannot be justified by an overriding public purpose, or is a law for a specific purpose that is not connected to religion and only incidentally affects religion. The resolution of these questions would have to await evidence at trial. McHugh J agreed with Dawson J. On the question of whether s116 of the Constitution applied in the NT: 2 Judges (Dawson and McHugh JJ) said 'no'; 2 Judges (Gaudron and Gummow JJ) said 'yes'; Toohey J said 'probably yes', and Brennan CJ did not consider this question.

Was the Ordinance within the power of the Commonwealth in accordance s 122 of the Constitution?

5 Judges (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) stated that a law must disclose sufficient nexus or connexion between the law and the Territory in order to be within the power to 'make laws for the government of any territory' under s122 of the Constitution, and that the Ordinance answered this description. Gummow J did not expressly consider the issue.