The Concept of “One Australia” in Constitutional Law and the Place of Territories
| Author | Graham Nicholson |
| DOI | 10.22145/flr.25.2.4 |
| Date | 01 June 1997 |
| Published date | 01 June 1997 |
| Subject Matter | Article |
THE CONCEPT OF "ONE AUSTRALIA"
IN
CONSTITUTIONAL
LAW
AND
THE PLACE
OF TERRITORIES
Graham Nicholson*
This
paper
argues
that
there is a
fundamental
concept implicit
in
the
interpretation
of
the
Australian
Constitution
which
postulates
that
that
document
should
be
approached
from
the
perspective of
what
I
have
called for convenience "One Australia". It is a
concept
which
suggests
that
the
Australian courts should,
where
appropriate,
take into
account
that
Australia is one
nation
and
one people operating
under
a"unitary"
system
of
Australian
domestic laws. It arises from
the
evolution of
Australian
nationhood
and
from
the
increasingly
interdependent
nature
of
Australian
society. It is
suggested
that
this
concept
is
already
exerting
an
influence
on
judicial decision-making
in
this
country,
to
be
balanced
with
other constitutional fundamentals, including
that
of
the
federal system.
However
it is also asserted
that
the full implications of "One Australia"
have
not
as
yet
been
determined. This is particularly so
in
relation to
Commonwealth
territories
and
their residents. The latter
have
in
the
past
been
generally
regarded
as
being
of little importance,
both
constitutionally
and
otherwise. Recent
developments
in
some
of these Territories,
and
their
growing
importance
within
the
Australian
nation,
directly raise
the
question of the applicability of the concept of "One Australia" to them,
particularly
as
it
might
be
held
to impinge
on
the constitutional place of
such
territories
in
Australia
and
on
the
constitutional rights of their residents.
At
present
it
can
be
said
that
there
are
two
classes of Australians
in
constitutional terms, those
in
the
territories
and
those
in
the
States,
with
those
in
the former
having
an
inferior position
in
this
regard. The question raised is
whether
Australian
courts will seek to
address
this
constitutional
form
of disadvantage,
in
so far as it is
within
their capacity to
do
so,
by
having
regard
to
the
premise
of "One Australia".
That
there
could
be
such
an
implication is
not
anovel concept. It is well established
that
there
are
certain
fundamental
concepts
or
principles
inherent
in
or
implied
into
the
Australian
Constitution
which
are not,
or
not
fully, expressed
in
the
written
text. The
concepts of responsible government,1
and
representative democracy,2 are
good
1
Barrister
and
Solicitor
of
the
Supreme
Court
of
the
Northern
Territory, Senior
Crown
Counsel,
Northern
Territory Attorney-General's Department; Visiting Fellow,
Law
Faculty,
Northern
Territory University.
Amalgamated
Society
of
Engineers
v
Adelaide
Steamship
Co
Ltd
(1920) 28 CLR 129
at
146-148
per
Knox CJ, Isaacs, Rich
and
Starke
JJ,
cited
in
New South
Wales
v
Commonwealth
(1932) 46
CLR 155
at
196-197
per
Evatt
J,
and
in
Commonwealth
v
Colonial
Combing,
Spinning
and
Weaving
Co
Ltd (1922)
31
CLR
421
at
446-450
per
Isaacs
J;
Commonwealth
vKreglinger
and
Fernau
Ltd (1925) 37 CLR 393
at
411-413
per
Isaacs
J;
McGraw-Hinds (Aust) Pty Ltd vSmith
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