Queensland v. The Commonwealth1

DOI10.1177/0067205X7800900305
Date01 September 1978
AuthorVincent Robinson
Published date01 September 1978
Subject MatterCase Note
CASE NOTE
QUEENSLAND
v.
THE
COMMONWEALTH1
Constitutional
law
-
S.
122 -Representation
of
Territories in Senate
and House
of
Representatives -Interpretation.
Stare decisis -Former decisions
of
th,e
High Court
of
Australia -
Power to overrule -When power will
be
exercised -Relevant
considerations.
I. BACKGROUND
Since 1922 the people of the Northern Territory have had the right
to elect one representative in elections for the House of Representatives,
under the Northern Territory Representation Act 1922.2
On
16 October
1973 the Australian Capital Territory Representation (House of
Representatives)
Act
1973 came into operation.
It
provided for the
representation of the Australian Capital Territory in the House of
Representatives by two elected members.8On 7August 1974 the Senate
(Representation of Territories) Act 1973 came into operation, providing
in section 4that each Territory had the right to be represented in the
Senate by two Senators for the Territory directly chosen by the people
of the Territory voting
as
one electorate.4"Territory" for the purpose
of this legislation means the Australian Capital T'erritory (including the
Jervis Bay Territory) and the Northern Territory and will be used in
this sense throughout this case note. These three pieces of legislation
give effecttoTerritoryRepresentationin the CommonwealthParliament.
1S
In
May 1975 the first direct challenge to the Territories Represen-
tation legislation was made in Western Australia
v.
Common,wealth.6
In
this action only the Senate Representation legislation was challenged,
presumably because the challengers thought that their strongest argu-
ments could
be
made against this part of the scheme for Territory
Representation: the Senate
is
the institution which embodies above all
else the State role in the working of the Constitution. The High Court
delivered its judgments on 10 October 1975 and by amajority of four
1(1978) 52 A.L.J.R. 100. High Court
of
Australia; Barwick C.J., Gibbs, Stephen,
Mason, Jacobs, Murphy and Aickin JJ.
2This representative was only anon-voting representative until 1936.
From
that year until 1968, this member was able to vote only
on
Northern Territory
matters. Full voting rights came in 1968.
s
S.
5.
4
S.
4mirrors the first paragraph of
s.
7
of
the Constitution which provides that
"The Senate shall be composed
of
senators for each State, directly chosen by the
people
of
the State, voting
...
as one electorate".
6Note that each Act applies the Commonwealth Electoral Act 1918
to
the
elections for which it
provides-this
means among other things universal suffrage
as given under
s.
39
of
this Act.
6(1975) 134 C.L.R. 201. The case will be referred to in this
Dote
as The
Western Australia Case.
375

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