''Queensland v Commonwealth'',
[.] also known as the ''Second Territory Senators' Case'', was an important decision of the
High Court of Australia regarding the representation of territories in the
Australian Parliament
The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-g ...
. The case involved a re-argument of the High Court's decision in ''
Western Australia v Commonwealth'' (1975),
[{{cite AustLII, HCA, 46, 1975, litigants=Western Australia v Commonwealth , link=Western Australia v Commonwealth (1975) , pinpoint=, parallelcite=(1975) 134 ]CLR CLR may refer to:
* Calcium Lime Rust, a household cleaning-product
* California Law Review, a publication by the UC Berkeley School of Law
* Tube_bending, Centerline Radius, a term in the tubing industry used to describe the radius of a bend
* Cen ...
201, date=17 October 1975, courtname=auto, juris=, ref=. in which the High Court had held legislation providing for
Senate representation for the
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an Australian territory in the central and central northern regions of Australia. The Northern Territory shares its borders with Western Aust ...
and the
Australian Capital Territory
The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. I ...
to be constitutionally valid. The High Court again found the legislation to be constitutional and, additionally, that legislation providing for territory representation in the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
was also valid.
Background
In 1974, the
Whitlam government passed laws granting Senate representation to the Northern Territory and the Australian Capital Territory, as well as representation for the Australian Capital Territory in the House of Representatives. The Northern Territory had been represented in the lower chamber since 1922, with voting rights for its member since 1936.
In ''Western Australia v Commonwealth'' (1975), the High Court upheld the constitutional validity of the law for Senate representation. The decision was a divided one, with
McTiernan, Mason, Jacobs and Murphy JJ upholding the law and Barwick CJ, Gibbs and Stephen JJ finding that the law was unconstitutional.
In 1976, a change occurred in the Court's membership, with McTiernan J resigning and being replaced by
Aickin J. The State of
Queensland
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, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, establishe ...
, which had been a plaintiff in the 1975 case, again challenged the validity of the law allowing Senate representation. The State of
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
, which had also been a plaintiff in the 1975 case, brought an action challenging the constitutional validity of the laws providing for territory representation in the House of Representatives.
Arguments
The plaintiff States argued that the 1975 case had been wrongly decided and should be overruled. The Commonwealth argued that 1975 case had been correctly decided or, if it was wrong, that ''
stare decisis'' required that it be followed. It also argued that Queensland was estopped from raising the Senate representation case again and that the Court had no jurisdiction to decide to case because the Houses of Parliament had the power to exclusively determine their membership.
Decision
Each member of the Court again wrote a separate opinion. The remaining members of the majority in the 1975 case - Mason, Jacobs and Murphy JJ - wrote opinions affirming their continued view of the correctness of their earlier judgments.
Mason J further supported his conclusion by referring to the
inclusion
Inclusion or Include may refer to:
Sociology
* Social inclusion, aims to create an environment that supports equal opportunity for individuals and groups that form a society.
** Inclusion (disability rights), promotion of people with disabiliti ...
, earlier that year, of the territories in Constitutional referendum.
Gibbs and Stephen JJ, who had been in the minority in the 1975 cases, re-stated their views that the laws for territory representation were invalid and that the earlier case had been wrongly decided. Although Gibbs J concluded that the Court was not bound by its previous decision and should be slow to apply ''stare decisis'' in Constitutional cases, he followed the decision in ''Western Australia v Commonwealth'' because the only relevant circumstance justifying a reconsideration of the earlier case had been a change in the Court's membership and that the legislation had been acted upon and Senators from the territories had been elected.
Stephen J found that the recency of the decision, the fact that it was a decision on which reasonable minds could differ and the impact upon the territories now that the law had been given effect, required the previous decision to be followed.
The effect of the decision was that although a majority of the Court considered the legislation to be unconstitutional, the laws were upheld by an increased majority compared to the 1975 case.
References
High Court of Australia cases
1977 in Australian law
1977 in case law
Australian constitutional law