High Court battle over Northern Territory constitutional rights as Territorians head to polls.
Nearly one year after the Indigenous Voice to Parliament referendum, Northern Territory and Australian Capital Territory voters are returning to the polling booths for their elections. The top end voted last weekend, with the Country Liberals winning a majority over Labor.
However, recent events, including the referendum, demonstrate the limited power and status of these ‘self-governing territories,’ compared to their sibling states.
In contrast to the state governments, the two territory parliaments have a meager 25 members each. Alongside Queensland, they are Australia's only ‘unicameral’ parliaments, without an upper house.
This division is repeated at the federal level. Each territory is only allowed two senators, versus the 12 of each state, and only serve for three-year terms. And it took two High Court battles to establish that right.
It wasn’t until 2022 that a territory elected a senator who did not belong to Labor or the Liberals/Country Liberals, with David Pocock securing the ACT seat normally held by the Liberal Party.
Likewise, the ACT was the only jurisdiction to vote in favour of the Voice to Parliament, but referendum rules meant that its voters only counted towards the ‘majority of Australians’ requirement, but not the ‘majority of states’ requirement.
But these ‘surface level’ issues are indicative of a greater power imbalance.
Common(wealth) Knowledge #62 already demonstrated that local governments are a caveat to the ideal Commonwealth-state ‘federal’ system. But the relationship between the Commonwealth and the territories is better seen as ‘diet federalism.’
An upcoming series will seek to explore this more jaded relationship between the two levels of government, and its impact on the territories’ residents.
Although it is often said that the Australian Constitution does not include many human rights, borrowing the English tradition of leaving that to the common law, it does contain some rights.
Section 80 states that all individuals charged with ‘indictable’ offences committed under Commonwealth law shall have a right to trial by jury. Putting aside the debate over the meaning of ‘indictable,’ this guarantees that any state resident who violates a Commonwealth law has a right to a trial by jury.
Each state has passed legislation to protect this right for any offence committed within its jurisdiction.
However, the Australian Constitution limits the powers of the Commonwealth government over the states, most famously in Section 51. The Constitution presumes that states have the power to pass any laws unless the Constitution says otherwise. Even when they are inconsistent, section 109 tries to remove only the inconsistent elements, and keep the rest intact.
However, Section 122 gives the Commonwealth complete jurisdiction over territories, unless it grants them the power to pass legislation on a particular topic. Even then, it can override them.
The question of section 80 in the territories arose before the High Court as early as 1915, in R v Bernasconi, an appeal from the Central Court of Papua, which was a territory at the time. To avoid rehashing Common(wealth) Knowledge #33, it can be summarised by the following statement by Justice Isaacs, who believed that the common law protection of rights didn’t exist in the territory.
“[Section 122] is an unqualified grant [of power] complete in itself, and implies that a ‘territory’ is not yet in a condition to enter into full participation of Commonwealth constitutional rights and powers. … Parliament’s sense of justice and fair dealing is sufficient to protect [Papuans].”
Unsurprisingly, modern courts don’t use this language anymore, partly because it reflects the attitude of the White Australia Policy towards the Northern Territory’s Aboriginals and the people of Papua New Guinea. There has been much judicial debate about whether PNG was meant to be under Australia’s control ‘temporarily,’ or more along the lines of assimilation and annexation.
Nonetheless, even though the ‘self-governing territories’ have been given some legislative autonomy, so it is no longer just the Commonwealth government’s “sense of justice” that is relevant, the lack of constitutional rights and the dominance of the Commonwealth government through section 122 remains.
In early August, the High Court travelled to Darwin to hear oral arguments in Commonwealth v Yunupingu. Ostensibly a native title case, the native title claimants from the Northern Territory argued that section 51(xxxi), which prevents acquisition by the Commonwealth of property on unjust terms, extended to the Northern Territory.
The Commonwealth argued that because the Northern Territory was originally part of South Australia, the land was divided up under South Australian property law. Because the acquisition limitation does not affect the states, the Commonwealth claimed that the limitation did not apply to any future property dealings in the Northern Territory before it achieved legislative autonomy in 1978.
The Full Court of the Federal Court of Australia rejected the Commonwealth government’s argument. The High Court has only heard the arguments of all parties, and has not handed down its judgment.
More than 100 years have passed since Bernasconi, and the jury is still out on the constitutional rights of the territories and their residents. In fact, the High Court has outright refused to even consider revisiting the core of Bernasconil. That’s how difficult it is to determine the relationship between the territories and the other Australian governments.
And it doesn’t help that the constitutional framers didn’t pay too much attention to this issue either, beyond the blanket rule of section 122.
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