The High Court offers some clarity on whether it can 'unelect' Senators.
With the 2025 federal election likely to be called early, Senators Katy Gallagher, Malarndirri McCarthy, David Pocock, and Jacinta Price will once again have to defend their Senate seats, thanks to their limited 3-year terms.
This limited representation was won through hard-fought battles in Parliament and the High Court.
The Senate (Representation of Territories) Act 1973 (Cth) was only passed because the Governor-General called a joint session of the two Houses of Parliament, the only time this was done in Australia’s history.
In Western Australia v Commonwealth (1975), Western Australia, Queensland, and New South Wales failed to overturn that hard-fought legislation, in a 4:3 High Court split.
In Queensland v Commonwealth (1977), Queensland and Western Australia tried to reopen the case. This was because Justice McTiernan, who was part of the 1975 majority, had taken 'early retirement' at age 84, after a hip injury when Chief Justice Barwick refused to install a wheelchair ramp for him. Justice Aickin replaced him.
As Justice Stephen pointed out, this second challenge would 'unelect' the four territory Senators who were elected at the federal election on 13 December 1975.
Despite the hope that the change to the High Court would actually offer some clarity on the subject, as no two judges fully agreed with one another in 1975, the trend of each judge writing separately continued.
Justices Mason, Jacobs, and Murphy reaffirmed their support for the Senate (Representation of Territories) Act 1973 (Cth) and the validity of their judgment in the First Territory Senators’ Case.
Justices Gibbs and Stephen, who opposed the legislation in 1975, again expressed their discontent towards the law. Despite this, they both upheld the legislation, respecting the 1975 case.
The Commonwealth government’s argument relied on the doctrine of stare decisis, where past decisions of the court have future consequences when making judgments on similar issues of law.
This is the closest thing the High Court of Australia has to a binding precedent on itself, however, this becomes less prevalent when a precedent has been acted on through legislation, or when the facts of a case are different.
Based on this, Justice Gibbs stated that “there is of course no doubt that this Court is not bound by its own decisions … [and] the doctrine of stare decisis should not be so rigidly applied to the constitutional as to other laws.”
Still, Justice Gibbs paid respect to the 1975 judgment, by arguing that “no Justice is entitled to ignore the decisions and reasoning of his predecessors.”
As the question of law was of significant importance, Justice Gibbs considered the possibility of reviewing the case and providing a judgement against it. Ultimately, however, he found no noteworthy events other than the fact that “one member of the Court has retired” which isn’t enough to justify the First Territory Senators’ Case being overturned.
However, Justice Gibbs stated that he would be willing to reopen the case if the ACT and NT were given further representation, either more than 2 Senators or 6-year terms. Anything more would give the territories a “disproportionate” voice in the Senate.
Justice Stephen came to similar conclusions in his judgment, where he did acknowledge the power of the High Court of Australia to reopen and overturn previous cases, but also argued that “to do so is exceptional and will only be undertaken after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so.”
In relation to his first point, Justice Stephen was unable to identify any actual precedent cases or “settled principles of law” that allowed for such a reopening. Between that and the fact that no two judges could fully agree either then or in this case and six of the seven original judges were still on the court, there was no reason to reopen or overturn that case.
For him, stare decisis was all the clarity that was needed.
As mentioned above, he also pointed out the impracticality of overturning the first case.
Both the NT and the ACT already had Senate representation, and removing this would be undemocratic and may even “jeopardise their existing rights of representation in the House of Representatives.”
Ironically, this exact point was made in 1975 by Justices Mason and Murphy.
Despite finding the Senate (Representation of Territories) Act valid, and recognising “[the] power to afford representation to a Territory to the extent to which Parliament thinks fit,” Justice Stephen did make clear that lawmaking power must only exist in relation to representation, and stated that any law “other than a measure providing for Territory representation” would be invalid “regardless of the continued authority of Western Australia v Commonwealth.”
Justice Aickin acknowledged that the core issues in both the First Territory Senators’ Case and the Second Territory Senators’ Case are the same.
The doctrine of issue estoppel prevents a case from being brought between the same parties on the same issue when a judgment on that issue and between those parties was already made.
Effectively, issue estoppel is similar to double jeopardy.
Justice Aikin’s solution was to argue that the parties were different. In the First Territory Senators’ Case, the Queensland government was a party. But, this time round, the Queensland government started the case, but the Attorney-General of Queensland also intervened in the case.
Justice Aikin reasoned that the Queensland government represented itself. However, he argued that when the Attorney-General “sues to enforce a public right or liberty he does so as representing Her Majesty’s subjects,’ not the government. The Attorney-General represented the State of Queensland, which is made up of all the residents of Queensland.
This argument does not hold up under scrutiny. The people of the ‘State of Queensland’ elect representatives to Parliament to represent themselves in Parliament. After all, it is called ‘Her Majesty’s Government’ for a reason.
Justice Aickin then used this justification to argue that the Senate (Representation of Territories) Act was unconstitutional. He referred to section 122 of the Australian Constitution, which allows “representation of such territory in either House of the Parliament.”
Justice Aickin believed that “representation in the Senate … does not … warrant the conclusion that the senators in any sense ‘represent’ the body politic which is comprised by the State itself.”
In doing so, he differentiated between a Territory as a political entity and the people of the Territory themselves, arguing that the territories would be better represented “[in] a variety of forms short of the provision of persons who are members of either House of the Parliament.” By this, he meant non-voting representatives, which had been the existing system.
His complicated argument, which has never been approved by any other judge, reverted back to some of the early arguments seen in this series.
The above quote is based on the notion that the Territory governments aren’t developed enough to become a political and legal entity that is separate from the federal government.
He alleged that they lacked the powers and autonomy of a State government, and so cannot be represented in the Senate. The Senate is meant to represent the interests of the States.
He took the opposite approach to all of the above judges. He argued that if section 7 is invalid, section 24 is automatically invalid. This is in stark contrast to Justice Murphy’s insistence that the right to representation is inherent in democracies, and that people should not be denied that right.
Finally, Chief Justice Barwick, who dissented in The First Territory Senators’ Case, again wrote a judgement in opposition to the legislation providing the same views as he did in 1975.
He stressed “the duty … of each Justice .. [to pay] due regard to the opinions of other Justices past and present, to decide what in truth the Constitution provides.”
Chief Justice Barwick believed that stare decisis didn’t apply to constitutional matters, stating that the“Constitution may be rigid but that does not imply or require rigidity on the part of the Court in adherence to prior decisions,” to justify his opposition to the NT’s and ACT’s representation in the Senate.
His complete opposition to stare decisis in constitutional law meant that he didn’t even agree with Justice Gibbs’ proposal for ‘two Senators and 3-year terms, but no more.’
Both Territory Senators’ cases played a major role in guaranteeing Senate representation for all Australians, with there being a near impossible likelihood of either case being reopened in the future, as Senate representation for the NT and ACT is universally supported across the country.
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