The NT and ACT won representation in the Senate before being given self-government.
With the Australian Capital Territory election looming, it is somewhat ironic that a territory that has been denied an upper house continues to be represented in the Australian Senate.
More than a decade before the ACT was granted a limited right to self-government and a Legislative Assembly, the Commonwealth government fought two cases to defend the representation of the ACT and Northern Territory in the Commonwealth Parliament.
These are the Western Australia v Commonwealth (1975) and Queensland v Commonwealth (1977), better known as First Territory Senators’ Case and Second Territory Senators’ Case, to distinguish them from earlier cases between the same parties and because lawyers are bad at naming things.
During the constitutional crisis of 1974-1975 the Governor-General, acting under section 57 of the Australian Constitution, called a joint sitting of both Houses to pass several bills. In the First Territory Senators’ Case, the Governor-General’s decision was upheld by the High Court.
But the primary issue of the case was whether the Senate (Representation of Territories) Act 1973 (Cth) was valid. Western Australia, joined by Queensland and New South Wales, alleged that it was unconstitutional.
The Commonwealth legislation sought to give two Senators to both the NT and ACT. By now, both territories had voting MPs in the House of Representatives. The ACT was given one with full voting rights under the Australian Capital Territory Representation Act 1966 (Cth), and a second in the Australian Capital Territory (House of Representatives) Act 1973 (Cth). These laws were not contested here, and only Chief Justice Barwick made significant references to them.
Section 122 of the Constitution empowers the Commonwealth Parliament to “allow the representation of such territory in either House of the Parliament to the extent and on the terms it sees fit.”
On the other hand, section 7, which establishes the Senate, states that “the Senate shall be composed of senators for each State, directly chosen by the people of the State.”
The court was completely divided. No two judges were in full agreement with one another. Justices McTiernan, Mason, Jacobs and Murphy, upheld the legislation. Murphy had been a Senator when the legislation was passed. Chief Justice Barwick and Justices Gibbs and Stephen ruled against it.
Justices Mason and Murphy have been seen as the leaders of the majority. Both focused on the importance of democratic representation. They argued that the framers of the Constitution were not “speaking for all time” when they wrote section 7. They could not possibly have intended to deny representation to the territories forever.
The two, in the words of Justice Murphy, believed that although the territories were not developed enough “to suggest the immediate likelihood of their securing representation in either House, but the possibility of such a development occurring in the future was undeniable.”
To this end, Justice Mason stated that because the framers couldn’t predict the future, but knew that representation would eventually be warranted, Parliament was trusted to grant representation “on the terms it thinks fit” at that future time.
The framers were aware of at least two territories that would exist: Section 125 sets out some of the rules for the creation of the ACT. More vaguely, clause 6 refers to the “northern territory of South Australia.”
However, that raised an important point for the two judges. The ACT and NT were both created out of existing states. Their residents had once been residents of states. To deny people the right to representation purely because of where they were born went against “the democratic theme of the Constitution.”
Justice Murphy, the architect of the implied freedom of political representation, which was similarly based on inherent democratic freedoms, stated that “these houses are our most political institutions, the principal organs of our democracy; their decisions are vital to every Australian.”
Today, few people would disagree with Justices Mason and Murphy. But the argument against Senate representation is worth mentioning.
Chief Justice Barwick and the other dissenters took a very literalist approach to section 7. To them, the rule that “the Senate shall be composed of senators for each State” was absolute; it could not be limited.
Commenting on sections 7 and 24, the equivalent of section 7 but for the House of Representatives, he said that there was no language that allowed section 122 to apply to them. However, he conceded that a delegate in the Senate who represented a territory but did not possess the same rights as the senators, in particular voting rights, would not infringe upon section 7.
Referring to the “dependent territories,” he said that “it is quite clear that those who reside in any such Territory do not become people of the Commonwealth for the purposes of s 24.”
His views on section 24 were definitely in the minority; neither of the other dissenters mentioned section 24. While section 24 does make specific requirements for the representation of States, the phrase ‘members chosen by the people of the Commonwealth” makes it broader than section 7. This is why Justices Gibbs and Stephen did not challenge it.
Chief Justice Barwick was proven wrong on section 24 just one year later, when a referendum partially incorporated the territories into the referendum system. Indeed, the new section 128 granted referendum voting rights “in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
But this didn’t stop Chief Justice Barwick from trying to reopen the issue by encouraging Queensland to bring the Second Territory Senators’ Case.