‘Laws for the Government of any Territory’: Section 122 of the Constitution
| Author | Leslie Zines |
| DOI | 10.1177/0067205X6600200104 |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| Subject Matter | Article |
,LAWS FOR THE GOVERNMENT OF ANY
TERRITORY': SECTION 122 OF THE
CONSTITUTION
By
LESLIE
ZINES*
The many problems relating to Commonwealth power to make laws
for aTerritory have arisen because the power itself was aconstitutional
afterthought. The late Professor Ross Anderson described the Common-
wealth
of
Australia as
'the
child
of
as hard-headed amariage de convenance
as was ever arranged in the salons
of
France '.1The marriage was, how-
ever, between the self-governing colonies which later became the States.
Those who arranged the marriage were concerned primarily with the
health and prosperity
of
the parties to, and the issue of, the union.
Whether they were in favour
of
granting large powers to the Common-
wealth
or
were staunch believers in
'State
Rights'
or
whether they
were for
or
against Federation, the chief issue was whether and to what
extent each
of
the colonies should voluntarily reduce its own govern-
mental power by giving some
of
it
"to
anew self-governing colony which
would in area and population embrace all the existing colonies.
Many provisions
of
the Constitution were therefore apparently designed
to protect the interests
of
the States -Commonwealth legislative authority
is
confined to express affirmative and enumerated powers, the States
have equal representation in the Senate regardless
of
population, the
Constitution can only be amended with the consent, inter alia,
of
the
electorates
of
amajority
of
the States, the Constitutions
of
the States are
preserved.
Other provisions were calculated to ensure that the new government
would be
of
atype familiar in the various colonies e.g., provisions for
an elected Parliament, the requirement that ministers be members
of
Parliament (section 64), appropriation
of
revenue by Parliament (sec-
tion 81), some measure
of
religious freedom (section
116),
the require-
ment
of
'just
terms'
for the acquisition
of
property (section
51
(xxxi.»
and provision for trial by jury (section
80).
What the founding fathers no doubt envisaged was aself-governing
and broadly
'democratic'
political entity formed by union
of
con-
stituent states
of
asimilar type.
Provision, however, was also made
for'
dependencies'
of
the Com-
monwealth.
•LL.B. (Syd.), LL.M. (Harvard); Barrister-at-Law; Reader in Law, School
of
General Studies, Australian National University.
IElse-Mitchell (ed.), Essays on the Australian Constitution (2nd ed.
1961)
93.
72
JUNE
1966] Territories Power
73
Section
122
provides-
The Parliament may make laws for the government
of
any territory
surrendered by any State to and accepted by the Commonwealth,
or
of
any Territory placed by the Queen under the authority
of
and
accepted by the Commonwealth,
or
otherwise acquired by the
Commonwealth, and may allow the representation
of
such territory
in either House
of
the Parliament
to
the extent and
on
the terms
which it thinks
fit.
Covering clause 5
of
the Constitution Act also contemplates the opera-
tion
of
Commonwealth law in areas outside the States by providing that
the Constitution Act and laws made by the Commonwealth Parliament
shall be binding on, inter alia, 'the courts, judges, and people
of
every
State and
of
every
part
of
the Commonwealth '.
The chief questions that have arisen with respect to section
122
have
been the extent to which the other provisions
of
the Constitution defining
and limiting Commonwealth legislative, executive and judicial power
are applicable to the exercise
of
powers by the Commonwealth in
and
for
the Territories.
On this general question three different approaches can and have been
adopted
at
various times but none
of
them has been consistently adopted
by all the judges in
anyone
case. The matter has been further com-
plicated as will be shown later by arecent reluctance to over-rule some
previous decisions, even though the basic principles behind them have
in some cases been rejected. The three general approaches
are:-
(a) The
'disparate
power'
theory -According to this approach,
the position
of
the Commonwealth in relation to aTerritory
is
similar
to
that
of, say, New South Wales in respect
of
its own area before federa-
tion: the Commonwealth Parliament has full sovereign authority over
the Territory concerned. This power
is
untrammelled by other provisions
of
the Constitution which are thought to have the object
of
limiting and
defining Commonwealth power in the
'federal
system'.The Con-
stitution
is
asort
of
'social contract
'2
between the peoples
of
the States,
and
is
not concerned with delicate adjustments
of
power outside the dual
system
of
government which
is
the hallmark
of
federation and which
2The 'social
contract'
view
of
the Constitution has been thought by some to require
adistinction between internal and external Territories. This
is
based on the fact
that
at
the time
of
federation, the Northern Territory was
part
of
South Australia and the
area
of
the Australian Capital Territory was part
of
New South Wales. In section 6
of
the Constitution Act 'The States 'are defined to include 'South Australia including
the northern territory
of
South Australia '. The preamble to the Act refers to the fact
that 'the people
of
"the various colonies "have agreed to unite in one indissoluble
Commonwealth'.
It
could be argued, therefore, that as the people
of
the Northern
Territory and those in the area that is now the Australian Capital Territory were from
the beginning within
'The
Commonwealth 'and parties to the agreement, referred
to in the preamble, those Territories must be treated as an integrated
part
of
the'
federal
system'.
In
Mitchell
v.
Barker (1918) 24 C.L.R. 365, 367, Griffith C.J.
said'
It
may
be
that adistinction may some day be drawn between Territories which have and those
which have
not
formed
part
of
the Commonwealth'. In Spratt
v.
Hermes (1965)
39
A.L.J.R. 368, the High Court rejected this view and held that there was no relevant
legal distinction between internal and external Territories.
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