Australia’s territories sit at the bottom of the federal pyramid of Australian governments.
During the 1890s, representatives of the governments of all 6 Australian colonies, after more than a century of British rule, agreed to develop an ‘Australian Constitution’ that would unite the six ‘states’ under a ‘federal’ or ‘Commonwealth’ government.
All six states would have equal status in the Commonwealth of Australia, in an attempt to pre-empt any fights between the state and the creation of a state hierarchy. Thus, Most of the 128 sections of the Australian Constitution are dedicated to establishing the framework for a federal system of government.
However, there are two other levels of government in the Constitution, namely local governments and the territories.
Local governments are not explicitly mentioned, but their authority comes from the states, so sections 106-108 protect them from most Commonwealth interference.
Although territories are mentioned in the Constitution, they are mostly found in sections 122-124, under the heading of ‘New States.’ These sections concern partitioning off state land to create new states or to create ‘territories,’ which may later become new states under section 121.
In recent years, the High Court has become frustrated with how “briefly” the territories are dealt with, given the “realities of government and administration …[and] the disparate nature of territories.”
The Constitution puts local governments in the domain of the states, but territories are given the opposite treatment; they are under the control of the Commonwealth.
Section 122 establishes the Commonwealth’s power to “make laws for the government of any territory.” It is a ‘plenary power,’ historically almost without limit. In contrast, sections 51 and 52 grant the Commonwealth limited ‘heads of power’ or issues that it can pass laws on that may affect the states.
Where there is a clash between state and Commonwealth laws, section 109 gives the Commonwealth government priority, but respects the jurisdiction of the state. The state law is only invalid “to the extent of the inconsistency.”
Under section 122, it is the territories that have a limited scope of power. The Commonwealth can pull the rug out from under the territories’ feet by reducing that scope of power through legislation, but the same cannot be said for the Commonwealth’s constitutional powers.
A referendum would be needed to limit the Commonwealth government’s constitutional power. However, reducing the power of the ‘self-governing’ territories only requires new legislation.
The High Court has traditionally denied the territories the benefit of constitutional rights that apply to Commonwealth laws, as in R v Bernasconi (1915), which will be the subject of an upcoming article. However, section 122 allows the Commonwealth to grant those same rights as legislation, although that legislation can be repealed at any time.
There is no contest that the Northern Territory falls under the jurisdiction of section 122. But, occasionally, an ACT case arises that challenges the jurisdiction of section 122.
Section 52(i) grants the Commonwealth “exclusive power to make laws … with respect to the seat of government.” In cases like Re Governor, Goulburn Correctional Centre (1999), ACT bodies have relied on this to benefit from those rights because they are part of the ‘Commonwealth government,’ not a territory.
The High Court has repeatedly shot that down, by referring to section 125:
“The seat of the 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.”
Section 125 treats the ‘seat of government’ as separate from the ‘territory,’ so section 122 still applies to the ACT. Confusingly, the ACT was originally known as the ‘Territory for the Seat of Government.’
Chief Justice Gleeson and Justices McHugh and Callinan were glad that the ACT was specifically addressed by the Constitution, given their earlier criticism about having to rely solely on section 122.
Clearly, the framers of the Constitution gave the territories some thought but underestimated their importance. Thus, the law is straightforward for the ‘internal’ territories of the NT, ACT, and the Jervis Bay Territory. But the same cannot be said for Australia’s ‘external’ island territories, which involves the United Nations.
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