How Australia's territories have developed.
In 1901, the Commonwealth of Australia was born from an agreement between the United Kingdom and the 6 Australian colonies. The colonies would enjoy more independence, while still being part of the British Empire.
But this series isn’t about Australia’s developing independence from the UK—this has already been covered in Common(wealth) Knowledge. Rather, it is about the developing independence of Australia’s territories.
One reason for Australian independence was the difficulty of administering Pacific Ocean land from the UK. So, the UK almost immediately gave Australia control over some of its Pacific possessions. Most importantly, Australia was to take control over Papua, the bottom half of what is now Papua New Guinea.
In the 1880s, Queensland tried to colonise Papua, out of fear of German expansion in New Guinea. An angry British government intervened and took control instead, but by 1906 formal control had been handed over to the Commonwealth government. Queensland had to satisfy itself with the Torres Strait.
With control of its first ‘external’ territory established, the Commonwealth government turned inwards, to create ‘internal’ territories.
Although we treat the Australian Constitution as the supreme law of the land, in the UK, it was simply another piece of legislation. The Constitution itself is found in ‘clause 9’ of the Act, while other matters for setting up Australia’s independence are found in the first 8 clauses.
Clause 6 defines ‘the States,’ stating the following: “and South Australia, including the northern territory of South Australia, as for the time being.”
Clearly, the framers had already anticipated the Commonwealth taking control of the Northern Territory, with South Australia ‘surrendering’ it to the Commonwealth under section 111 of the Constitution. It did so in 1911.
Because of its special status as the ‘Seat of Government,” section 125 was dedicated to establishing the Australian Capital Territory, protecting it from legislative meddling. This included the Jervis Bay Territory, to give the otherwise-landlocked territory a port.
It was also surrendered to the Commonwealth in 1911, although known as the ‘Territory of the Seat of Government’ until 1938.
Australian soldiers took control of German New Guinea and Nauru during World War I. In 1920, Australia was given these as League of Nation mandates with the intention of developing them into countries.
By this time, the High Court had established in R v Bernasconi (1915) that territories would not have any constitutional rights and privileges contained in Chapter III of the Constitution, including the right to trial by jury, It also ruled that section 122 of the Constitution gave the Commonwealth complete legislative power over territories. The scope of Bernasconi will be discussed throughout this series.
World War II would introduce a new perspective to the territories.
Thanks in part to the Kokoda campaign strengthening relations between Australians and the native population of the Territory of Papua and the Territory of New Guinea, it was clear that the two needed to be united. An arbitrary straight line didn’t represent the culture and history of the two territories, home to over 800 languages and dialects.
The Territory of Papua and New Guinea, united under the Papua and New Guinea Act 1949 (Cth), wasn’t self-governing. However, it was the testing ground for the status of territories and their role in the system.
Cases like Teori Tau v Commonwealth (1969) affirmed the application of Bernasconi to other constitutional rights, including the government giving appropriate compensation when it seized property.
However, another line of reasoning was becoming more popular with some judges. In Spratt v Hermes (1965), Chief Justice Barwick and Justice Menzies both referred to “the essential unity and singleness of the Commonwealth.”
They ultimately argued that it is unfair to treat the citizens of the Territories as lesser just because of where they happened to live at the time of Federation, especially because, at the point of Federation, they all lived in ‘states.’
It was this reasoning that influenced the High Court, in a narrow 4:3 ruling in the First Territory Senators Case (1975), to allow the NT and ACT to have two Senators each.
In the words of Justice Murphy, “These Houses [of Parliament] are our most important political institutions … their importance to the people of the territories is not less than their importance to the people of the States.”
Papua New Guinea would also have received Senators, were it not for the fact that its unification in 1949 set the wheels in motion for its independence. In 1975, the same year that the NT and ACT were given Senators, PNG was granted independence.
The decision that section 122 included the ability to grant federal representation to the territories all but secured the right to limited self-government.
Just three years after winning Senate representation, the NT achieved limited self-government under the Northern Territory (Self-Government) Act 1978 (Cth).
The ACT joined them ten years later, with the Australian Capital Territory (Self-Government) Act 1988 (Cth).
The next two articles in this series will focus on the issue of establishing jurisdiction over the territories, which was difficult with the external territories, before moving on to discuss the events that led to the democratic reforms of the 1970s.