States and Territories

On 1 January 1901, the 6 colonies became the 6 States of Australia (covering clause 6). The Australian Constitution expressly guarantees the continuing existence of the States and preserves each of their constitutions (section 106). However, the States are bound by the Australian Constitution, and the constitutions of the States must be read subject to the Australian Constitution (section 106 and section 107).

Origin of State constitutions

The State constitutions, like the Australian Constitution, have their origin in British statutes. The State constitutions developed during the 19th century in the light of British conceptions of parliamentary sovereignty. All power, including the constitution-making power itself, was concentrated in the institution of a parliament, and there were practically no restrictions on the parliament’s law-making power. This necessarily created a flexible system, since the parliament was generally able to keep reshaping (by legislation) its own structure and that of the other major institutions of government, the executive and the courts.

The executive authority symbolised by the Crown and vested in ministers had its own historical origins, and courts of law were given a great deal of independence from both the parliament and the executive. However, neither the executive nor the judiciary was given a secure constitutional basis, and both could be changed and regulated at the will of the parliament.

State politicians readily accused each other of 'unconstitutional' activities if they proposed measures such as interfering with the discretions of governors or the independence of judges. But this sort of 'unconstitutionality' was generally a failure to observe conventions or moral standards which had come to be regarded as binding, and from a strict legal point of view a breach of such conventions involved no breach of law at all.

Contrast with the Australian Constitution

This is to be contrasted with the position of the Commonwealth Parliament under the Australian Constitution. The Commonwealth Parliament only has law-making powers in relation to those particular matters specified in the Constitution. Further, the power to change the constitutional system established by the Australian Constitution is vested not in the Commonwealth Parliament but in a combination of the Parliament and the Australian people voting at a referendum under section 128 (which we discuss in chapter 11).

Popular sovereignty and parliamentary supremacy

Historically, the Australian Constitution was not, like that of the United States of America, based squarely on a constitutional theory of sovereignty vested in 'the people'. However, as noted earlier (see [1.3]–[1.4]), the High Court now considers that the validity of the Australian Constitution is based on the Australian people’s continuing commitment to remain bound by its terms – the result is that political sovereignty now rests with the Australian people.

As we shall see, a component of popular sovereignty has crept into some State constitutions, in that some provisions have been 'entrenched' to the extent that they can only be amended or repealed following approval by a referendum of the people of the State. But it remains true that, with respect to the rival political concepts of popular sovereignty and parliamentary supremacy, the Australian Constitution is closer to the United States position of popular sovereignty, whereas the State constitutions are generally closer to the British position of parliamentary supremacy.

Form of State constitutions

This difference in constitutional 'style' is reflected in a difference of formal shape. The Australian Constitution is a single document and the process of amendment is completely reflected in that document. In order to get a full picture of the 6 State constitutions, it is necessary to go back over a series of British statutes – 1842, 1850, 1855, 1856, 1861, 1865, 1890 and 1907 – and in most cases a series of State statutes as well.

The basic constitutional statutes of the States are currently:

for New South Wales, the Constitution Act 1902
for Victoria, the Constitution Act 1975
for Queensland, the Constitution Act 1867 and the Constitution of Queensland Act 2001
for South Australia, the Constitution Act 1934
for Tasmania, the Constitution Act 1934, and
for Western Australia, the Constitution Act 1889 and the Constitution Acts Amendment Act 1899.

These Acts have been amended from time to time since their original passage in the year noted in the citation. [WHY WAS THIS EXCLUDED?]

Basic features

The constitutions of the States vary greatly in length and in the kinds of material they include. However, there are some common features:

Qualifications of voters and candidates for parliamentary membership, and disqualification of members, are set out at some length, although further details may have to be sought in electoral Acts.
The structure of the legislature is set out in some detail, with provisions about the relations between the 2 houses in the 5 bicameral parliaments (that is, each State except Queensland).
The lower house is where the government is formed and is generally called the Legislative (or House of) Assembly. All the assemblies are made up of representatives from single member electorates, except Tasmania, which has multi-member electorates for its House of Assembly. The upper house, or house of review, is generally called the Legislative Council. All the councils are made up of representatives of various forms of multi-member electorates, except the Tasmanian upper house, which has single-member electorates.
In all States, the maximum duration of lower house terms has been extended from 3 years to 4 years.
Common provisions about financial legislation in the bicameral parliaments include requirements about specified types of 'money Bills'. These must originate in the lower house and cannot be amended by the upper house. However, the upper house can 'suggest' amendments (in Victoria, a limited number of times) and can reject these Bills. Under section 5A of the New South Wales Constitution, a Bill appropriating money for the ordinary annual services of government may be enacted by the Legislative Assembly and Governor notwithstanding its rejection by the Legislative Council.
British-style responsible government with an executive drawn from (and answerable to) parliament is indicated by provisions which require ministers to be members of parliament.

Democratisation of upper houses

Traditionally, the State constitutional systems had been more rigid and constrained in operation than their legal basis would lead one to expect because of certain in-built political tendencies. The most important of these was the structure of the 5 Legislative Councils or 'upper houses':

Before its abolition in 1922, the Queensland Legislative Council was a nominated body with members holding office for life.
The Legislative Council of New South Wales was similar until 1934, when election for fixed terms was introduced.
The other State Legislative Councils were elected but with membership and franchise restrictions, including property and professional qualifications, giving them a conservative bias.

All States have now abolished special qualifications for membership and voting in relation to the 5 Legislative Councils. By 1900 all State lower houses had adult manhood qualifications for voters and members without any property or professional qualifications, though some had started with such restrictions. Female adult suffrage was adopted in all States by 1908.

Entrenching provisions

As a result of the virtual disappearance of British parliamentary or governmental intervention in Australian governments after 1900, and the modification of the few original requirements for special majorities in the State houses of parliament in relation to constitutional changes, by 1929 the State parliaments had become almost as 'constitutionally flexible' as the British Parliament. For example, the abolition of Queensland’s Legislative Council in 1922 was validly effected by an ordinary Act of the Queensland Parliament. (This abolition was made possible by the Governor, at the direction of the State government, appointing a large number of members to the Council who were prepared to vote for the Council’s abolition.)

Before 1929 few 'special majority' provisions survived in State constitutions, but except in one case all that these required was an absolute majority in the houses – that is, one more than half the total membership (when, for most purposes, a majority of the members present and voting was sufficient). The one exception was Tasmania, which required, and still requires, a two-thirds majority of members to amend the provision setting the duration of Parliament at 4 years.

In 1929, however, a conservative New South Wales administration passed legislation requiring a referendum of the electors to approve any Bill to abolish the upper house (then a nominated body) and a similar referendum to repeal this requirement of a referendum. This double entrenchment was held valid by the High Court and Privy Council in Trethowan (1931) and effective in preventing a Labor government from abolishing the upper house without a referendum. The legal basis for the entrenchment was section 5 of the Colonial Laws Validity Act 1865, which provided that a law respecting the 'constitution, powers or procedures' of a State parliament shall be of no force unless it was made in such manner and form as required by a law of the Parliament.

Such clauses, often called 'manner and form' or 'Trethowan clauses' from the title of the case, have since been adopted by many State parliaments to protect various provisions of their constitutions from amendment or repeal by parliamentary majorities:

In New South Wales and South Australia, a 'Trethowan clause' protects the basic features of their current constitutional structure.
In New South Wales, the separation of the judiciary from the other arms of government has also been entrenched to some limited extent.
In Queensland, the abolition of the upper house can be reversed and the single (former lower) house abolished only by a referendum of the people. The office of Governor and its relations with the King (and by inference the King himself) can be removed from the constitutional system only by such a procedure – it applies also to changing the 4-year duration of Parliament.
In Western Australia, a 'Trethowan clause' protects aspects of the existing structure both in relation to the legislature and as to the office of Governor and its relation with the King.

Overview of State constitutions

Broadly speaking, the first 'real' Constitution for each of the Australian colonies was enacted in the mid to late 19th century. Before that time, the institutions of government were governed by various imperial Acts and letters patent. In most cases, that first Constitution has been replaced by a Constitution enacted by the relevant State parliament after federation. The following section provides a brief overview of each of the current State constitutions (noted at [4.9]) and some of the provisions unique to those constitutions.

New South Wales

The current New South Wales Constitution was first enacted in 1902. It repealed the first 'real' Constitution for New South Wales enacted in 1855 (see [2.7]).

The New South Wales Parliament has the power to 'make laws for the peace, welfare and government of New South Wales in all cases whatsoever'. This formulation means that the Parliament may make laws on any subject that is relevant, even remotely relevant, to New South Wales. The Parliament consists of the Monarch acting with the advice and consent of the 2 houses of Parliament – the Legislative Council and the Legislative Assembly.

The Legislative Council, or upper house, has been completely reconstructed over time. It is now elected from the whole State as a single electorate, by variations of the proportional representation system used for federal Senate elections since 1949 and pioneered by the Tasmanian lower house. Members hold office for staggered terms, a proportion of the membership retiring in such a way that elections are held at the same time as elections for the lower house.

The head of the executive is the Governor of New South Wales, who is advised by the Executive Council. The Constitution includes some sections relating to the judiciary, including the process for removal of a holder of judicial office. However, many of the provisions relating to New South Wales courts are not contained in the Constitution but, rather, can be found in separate legislation such as the Supreme Court Act 1970 (NSW).

The Constitution also deals with local government in New South Wales. The Constitution specifically provides for the continuation of a system of local government. The New South Wales Parliament has the power to make laws about local government bodies, including their powers and functions.

Victoria

The current Victorian Constitution was first enacted in 1975. It repealed the first 'real' Constitution for Victoria enacted in 1855 (see [2.7]).

The Victorian Constitution is the most detailed of the State constitutions, with over 100 sections. Like the other constitutions, it provides for the 3 arms of government – the Parliament, the executive, and the judiciary. However, unlike other constitutions, it also contains provisions relating to various other bodies, including the Director of Public Prosecutions, the Judicial Commission of Victoria and the Auditor-General.

The Victorian Parliament has the power 'to make laws in and for Victoria in all cases whatsoever'. This formulation, like 'peace, welfare and government' for New South Wales, allows the Victorian Parliament to make laws on any subject relevant to Victoria. The Parliament consists of the Queen and 2 houses of Parliament, which are called the Legislative Council and the Legislative Assembly. The Legislative Council, or upper house, is elected from 8 'regions', each returning 5 members.

The head of the executive is the Governor of Victoria. The Constitution expressly provides that the Governor is advised by members of the Executive Council where the Governor is bound by law or established constitutional convention to act in accordance with advice (section 87E).

The Victorian Constitution sets out a detailed process – unique among the State Constitutions – for dealing with a Bill which has passed the Legislative Assembly but is blocked by the Legislative Council. First, a Dispute Resolution Committee, comprising members of both the Assembly and the Council, must seek to reach a resolution on the Bill. If a resolution is not reached, there are 2 options. First, the Premier may advise the Governor to dissolve the Legislative Assembly. Alternatively, the Premier can withdraw the Bill until the following election. The Bill can then be reintroduced into the Assembly. If the Council continues to block the Bill, the Premier may advise the Governor to convene a joint sitting of both houses of Parliament.

The lower house can be dissolved by the Governor and a general election held, but this may be done only on a few specified grounds arising from loss of a government’s supporting majority or as incidental to deadlocks between the houses (discussed at [4.27]). The Premier cannot advise the Governor to dissolve the lower house on the basis that the government thinks the electorate favours it but might not do so later (which often occurs under Westminster rules and can still occur federally and in the other States).

The Constitution makes detailed provision for the Victorian judiciary, including in respect of the Supreme Court of Victoria (the highest State court), as well as the process for the removal of holders of judicial office. The Constitution also contains provisions about local government. The Constitution 'recognises' local government as a 'distinct and essential tier of government'. The Constitution grants specific law-making power to the Victorian Parliament in respect of local government.

Queensland

The first Queensland Constitution was enacted in 1867. This Constitution remained in force until 2001, when the Constitution of Queensland Act 2001 was enacted. The 2001 Act says that it 'declares, consolidates and modernises the Constitution of Queensland'. However, it also says that it does not consolidate a number of provisions of the 1867 Constitution (as well as subsequent legislation amending that Constitution). This is because those provisions were subject to a 'Trethowan clause' (discussed at [4.16]), which the 2001 Constitution acknowledges may need to be complied with before they can be consolidated. Further, several provisions of the 2001 Constitution require reference back to the 1867 Constitution in order to give them their content (see, for example, sections 6, 7 and 8). The relevant sections of the 1867 Constitution can be found in Attachment 1 to the 2001 Act.

The Queensland Parliament consists of the Queen and the Legislative Assembly. As noted at [4.10] and [4.13], Queensland is the only State with only one house of Parliament. The upper house, the Legislative Council, was abolished in 1922. The Queensland Parliament has plenary legislative power. Specifically, the Queen has the power 'by and with the advice and consent' of the Assembly to make laws for the peace welfare and good government of Queensland in all cases whatsoever.

The head of the executive is the Governor of Queensland. The Constitution expressly provides for a Cabinet, consisting of the Premier and a number of other Ministers appointed by the Governor. The Constitution states specifically that the Cabinet is 'collectively responsible to the Parliament'. There is also an Executive Council, which consists of persons appointed as members of the Council by the Governor. The executive government has 'all the powers, and the legal capacity, of an individual'. The State may carry out commercial activities, and a minister may carry out commercial activities for the State.

The Constitution provides that there must be a Supreme Court of Queensland and a District Court of Queensland. There are also sections dealing with the appointment, removal and salary of judges. The Constitution does not contain all provisions relating to the courts. These are found in other legislation, such as the Supreme Court of Queensland Act 1991 (Qld).

The Constitution also provides that there must be a system of local government in Queensland, which is to consist of a 'number of local governments'. The Constitution contains specific requirements that apply where there is a Bill that affects local governments or proposes to end the system of local governments in Queensland.

South Australia

The first South Australian Constitution came into force in 1856 (see [2.8]). This Constitution was repealed and substituted by the Constitution Act 1934, which remains in force today.

The Parliament is constituted by a Legislative Council and a Legislative Assembly. It has plenary legislative power. The Legislative Council, or upper house, has been completely restructured in the same way as the New South Wales Legislative Council (discussed at [4.20]). That is, the Council is now elected from the whole State as a single electorate, and members hold office for staggered terms.

The head of the executive is the Governor of South Australia. As is the case in Victoria (discussed at [4.28]), the Governor can dissolve the lower house only on a few specified grounds arising from loss of a government’s supporting majority or as incidental to deadlocks between the houses.

The Constitution contains very few provisions relating to the judiciary. It only provides for the tenure and removal of judges. The Constitution also provides for the continuance of a system of local government in South Australia. Under that system, local government bodies are constituted with the powers that the South Australian Parliament considers necessary.

Uniquely amongst Australian constitutions, the South Australian Constitution includes provisions relating to the rights and status of women. Specifically, the Constitution contains sections which expressly provide that women have the right to vote (section 48) and that women are not disqualified by sex or marriage from being elected to, or sitting or voting as a member of, either house of Parliament (s 48A).

Tasmania

The first Tasmanian Constitution came into force in 1855 (see [2.8]). This Constitution was later repealed and replaced by the Constitution Act 1934.

The Tasmanian Parliament is constituted by the Governor, the Legislative Council and the House of Assembly. There are no provisions in the Constitution which deal with the general legislative power of the Parliament (including the power to amend the Constitution). It is therefore necessary to read the Constitution with the Australian Constitutions Act 1850 which deals with these matters (see [2.6]–[2.8]). Under that Act, the Parliament has the power to make laws 'for the Peace, Welfare, and good Government' of Tasmania. The House of Assembly, or lower house, is elected from 5 electoral divisions, each returning 5 members. The Legislative Council, or upper house, has staggered elections for 15 single-member divisions.

The Constitution does not contain any provisions relating to the judiciary. For those provisions, it is necessary to look at other Acts of the Tasmanian Parliament – for example, the Supreme Court Act 1887. The Constitution does provide for a system of local government. The system comprises municipal councils that have such powers as the Parliament gives them.

Uniquely among the State constitutions, the Tasmanian Constitution contains a provision which protects religious freedom (section 46). The Constitution provides that '[f]reedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen'. In addition, similar to section 116 of the Australian Constitution (see [9.21]– [9.25]), the Tasmanian Constitution provides that no religious test can be imposed in respect of appointment to or holding of a public office.

Western Australia

Originally, the Legislative Council was the only chamber in the Western Australian Parliament. The first Western Australian Constitution was passed by the Legislative Council in 1889 and reserved for the royal assent. The following year, the reserved Bill was enacted as a schedule to an imperial Act. In 1899, the Western Australian Parliament passed the Constitution Acts Amendment Act 1899, which amended the 1889 Act. For example, the Act increased the number of members in both houses of Parliament. Both the 1889 Act and 1899 Act comprise the current Western Australian Constitution.

The Constitution established a Parliament consisting of the Queen, a Legislative Council and a Legislative Assembly. The Parliament has plenary legislative power – in the words of the Constitution, it is lawful for Her Majesty 'by and with the advice of' the Legislative Assembly and Legislative Council’ to make laws for the 'peace, order, and good Government' of Western Australia. In 1987, the Western Australian Parliament enacted amendments which extended the duration of the lower house to 4 years and abolished the previous 'staggered' membership of the upper house, giving it a 4-year term also and causing all its members to retire simultaneously. Since then, the upper house has been elected, by proportional representation, from 6 'provinces', some returning 5 and others 7 members. In addition, the lower house electorates have been redistributed in ways that reduce the voting advantage previously held by rural electors.

The Governor is referred to in the Constitution as 'the Queen's representative in Western Australia’. The Constitution contains only 2 provisions relating to the judiciary. They state that present and future judges of the Supreme Court of Western Australia hold their offices 'during good behaviour' and may be removed by Her Majesty on the address of both houses of Parliament. The Constitution also requires the Parliament to maintain a system of 'local governing bodies'. Those bodies have such powers as the Parliament gives them.

Relationship between State constitutions and the Australian Constitution

Considered in isolation, the State constitutions have a basic simplicity and flexibility, and this comes out particularly clearly in the statement of their parliaments’ powers. In contrast with the limited and sometimes difficult to interpret list of powers possessed by the Commonwealth Parliament under the Australian Constitution, those of the States are completely general – 'peace, order (or welfare) and good government', in Victoria 'in all cases whatsoever'.

Essentially these terms purport to confer on a State parliament the power to make a law on any subject of remote relevance to the State. This includes matters outside the State, so long as there is some connection to the State. Further, the constitutions of the States impose few limitations on the law-making powers of State parliaments. As indicated at [4.16], a number of provisions in State constitutions have been entrenched, in the sense that they can only be amended by referendum or by some other special procedure, but such provisions remain comparatively rare.

However, the Australian Constitution restricts to a significant extent the law-making powers of State parliaments.

Prohibitions on States

It does so, first, by prohibiting State parliaments and governments from doing certain things. For example, State laws cannot contravene the freedom of interstate trade, commerce and intercourse guaranteed by section 92 of the Australian Constitution (see [9.17]–[9.20]). Also, they cannot discriminate against residents of other States contrary to section 117 (see [9.26]–[9.30]). (Interestingly, though, many of the guarantees of rights and freedoms prescribed by the Australian Constitution apply only to the Commonwealth Parliament and not to the States – see, in particular, those concerning acquisition of property (section 51(xxxi)); trial by jury (section 80); and freedom of religion (section 116)).

The Australian Constitution also imposes some implied prohibitions on State parliaments and governments. For example, in Kable (1996) the High Court held that the Australian Constitution prevents State parliaments from giving functions to supreme courts which are incompatible with their exercise of federal judicial power (see [8.39]–[8.41] and [9.52]).

Removal of subject matters from States

Secondly, the Constitution removes certain subject matters from State competence and makes them exclusive to the Commonwealth. For example, section 90 of the Constitution prevents a State parliament from imposing duties of customs and excise, and section 114 prohibits a State from having defence forces without the consent of the Commonwealth Parliament.

Section 109

Thirdly, and most importantly, section 109 of the Constitution provides that, where a valid Commonwealth law is inconsistent with a State law, the Commonwealth law prevails and the State law is invalid to the extent of the inconsistency. The High Court has determined that the operation of section 109 is not confined to invalidating State laws which are directly inconsistent with Commonwealth laws (such as where a Commonwealth law requires a person to do a certain thing and a State law prohibits a person from doing that thing).

According to the Court, section 109 also invalidates a State law that attempts to regulate a matter which the Commonwealth Parliament has indicated is to be regulated exclusively by Commonwealth legislation. In this way, in the language of successive High Courts, the Commonwealth can 'cover the field' in relation to a particular subject to the exclusion of State law.

Section 109, then, effectively allows the Commonwealth Parliament to dominate those subject matters conferred on it by the Australian Constitution. For example, even though bankruptcy (section 51(xvii)) is not expressed in the Australian Constitution to be an exclusive Commonwealth power (as opposed to the imposition of customs duties and excise under section 90), the fact that the Commonwealth has enacted comprehensive legislation regulating bankruptcy, the Bankruptcy Act 1966, coupled with the operation of section 109, means that the State parliaments have effectively little law-making power over bankruptcy. The relationship between the Commonwealth and the States is discussed in greater depth in the next chapter.

Effect of the Australia Act on State constitutions

As we saw in chapter 3, the Australia Act 1986 had a considerable impact on the States. Besides removing legislative, executive and judicial ties with the British Parliament, government and courts, it minimises the legal powers of the Queen in relation to the States by transferring the exercise of those powers almost completely to the State governors. This to some extent reduces the effect of the Queensland and Western Australian constitutional provisions designed to emphasise a continuing role for the Queen.

Two provisions of the Act have greater practical significance. First, section 2(1), in clear terms, gives the States a power to make laws that have extraterritorial operation. (Early High Court decisions had tended to throw doubt on the extent of that power, although by the time the Australia Act was enacted the better view appeared to be that the State parliaments had power to pass laws with extraterritorial effect – a view confirmed by subsequent High Court decisions.)

Secondly, section 6 repeats, in slightly stronger language, the provision in section 5 of the Colonial Laws Validity Act 1865 which required a State parliament to make laws concerning the 'constitution, powers and procedure' of its parliament in 'such manner and form' as may be required by its own laws.

Section 5 of the Colonial Laws Validity Act (now repealed as to its effect in Australia by the Statute of Westminster 1931, section 2(1), and the Australia Act, section 3(1)) was the main basis of the High Court and Privy Council decisions establishing the validity and effectiveness of the 'Trethowan clauses' mentioned at [4.15]–[4.16]. The correctness of those decisions had been questioned, but perpetuation of the 'manner and form' requirement in section 6 of the Australia Act puts the validity and effectiveness of such provisions beyond doubt.

Territories

The Commonwealth Parliament is empowered by section 122 of the Constitution to make laws in relation to territories which have been surrendered by the States or which have otherwise been acquired by the Commonwealth. In relation to these territories (of which there are currently 10) the Commonwealth Parliament can make laws on any subject – that is, it does not share its law-making power with a State as it does in relation to the rest of Australia. In this important respect, the relationship between the Commonwealth and these territories is fundamentally different from the Commonwealth’s relationship with the States.

The relationship between the territories power in section 122 and the other provisions of the Constitution is particularly vexed and complicated. Traditionally, many of the express and implied prohibitions in other parts of the Constitution which limit Commonwealth law-making powers, such as the requirement of just terms for compulsory acquisitions in section 51(xxxi), have been treated by the High Court as not applying to Commonwealth laws enacted under section 122 (Teori Tau (1969), but see [4.62]). Similarly, many of the provisions of Chapter III, such as the security of judicial tenure provisions in section 72, have been held not to apply to judges of Territory courts (Spratt v Hermes (1965)).

However, in the 1990s it became clear that several justices of the High Court were uncomfortable with treating the territories power as if it were largely unqualified by the other provisions of the Constitution. Specifically, it was considered anomalous that persons living in the territories, particularly the mainland territories of the Northern Territory and the Australian Capital Territory, should not enjoy the same constitutional safeguards as persons in the States. Consistently with this view, the High Court overruled Teori Tau (1969) in Wurridjal (2009) and held that acquisitions of property under the territories power are subject to the 'just terms' requirement in section 51(xxxi) of the Constitution.

In Kruger (1997), a case concerning the validity of a Northern Territory ordinance under which Aboriginal children were forcibly removed from their families, a number of justices signalled their intention to reconsider the relationship between section 122 and Chapter III of the Constitution. However, a majority of the Court held in Eastman (2000) that the appointment of judges to territory courts – in this case, the appointment of an acting judge to the ACT Supreme Court – did not need to comply with the requirements of section 72 of the Constitution. In doing this, the Court reaffirmed its earlier decision in Spratt v Hermes (1965).

In summary, the law regarding the relationship between section 122 and other provisions of the Constitution remains confused and complicated.

Self-government and the Territories

Section 122 also allows the Commonwealth to confer self-government on particular territories. Two territories, the Northern Territory and the Australian Capital Territory, have self-government conferred on them by Acts of the Commonwealth Parliament. The Commonwealth retains residual constitutional control, however, and can legislate to limit or override Territory powers or legislation. The practical and political expectation is that this control will rarely be exercised, although in 1997 the Commonwealth Parliament amended the Territory self-government Acts to withdraw the power to make laws permitting voluntary assisted dying. This rendered inoperative the Northern Territory’s Rights of the Terminally Ill Act 1995, which had done exactly that. In 2022, the Commonwealth Parliament reinstated the power of the Northern Territory and the Australian Capital Territory to legislate on voluntary assisted dying.

While section 109 of the Constitution renders inoperative only State legislation which is inconsistent with Commonwealth legislation (see [4.53]–[4.55]), similar principles apply to legislation enacted by self-governing territories. So, for example, in the Marriage Equality case (2013) the High Court held that an Australian Capital Territory Act which allowed for same-sex marriage was of no effect because it was inconsistent with the Commonwealth Marriage Act 1961, which at that time provided that marriage was the union of a man and a woman. The Marriage Act has since been amended to provide for same-sex marriage after a plebiscite on this issue (see [11.7]).

Northern Territory

After a stage of representative but not responsible government, the Commonwealth Parliament enacted the Northern Territory (Self-Government) Act 1978, which established fully responsible government for the Northern Territory on the Westminster model. Subject to various restrictions, the Northern Territory Legislative Assembly has a general law-making power in relation to the Territory. An Administrator, appointed by the Commonwealth Governor-General, occupies a position broadly similar to that of State governors.

A single-chamber Parliament (now with 25 members) is given a 'peace, order and good government' range of powers, but the Commonwealth retains control of uranium mines, national parks and some matters concerning Aboriginal affairs. Compulsory, preferential voting by resident Australian citizens over 18 years in single-member constituencies elects the members of Parliament. In addition to its own legislature, the Northern Territory has its own public service and judiciary. The Territory has been increasingly treated by Commonwealth authorities much like a State. Its Chief Minister attends meetings of State premiers, and a considerable part of its revenue comes from the Commonwealth tax-sharing and special grants schemes on the same principles as apply to States.

However, owing to its great size, small population and a likely continued reliance on special Commonwealth assistance, the path to statehood may yet be long. The Commonwealth may be reluctant to relinquish control over sensitive and important issues (such as uranium mining, national parks and those affecting the interests of Indigenous Australians). In a referendum on statehood held in the Northern Territory with the national general election in 1998, a majority of voters opposed statehood.

The power to establish new States is conferred by section 121 of the Constitution. That section provides that the Commonwealth Parliament may 'admit' or 'establish' new States and may impose such terms and conditions (including the extent of representation in either house of the Commonwealth Parliament) as it thinks fit. One important issue which needs to be addressed in the context of statehood for the Northern Territory is the level of representation which its people should have in the Commonwealth Parliament if statehood is conferred.

Australian Capital Territory

The people of the Australian Capital Territory had self-government conferred on them by the Australian Capital Territory (Self-Government) Act 1988. The scheme of self-government that the Act prescribes is similar to that provided by the Northern Territory (Self-Government) Act. Subject to various restrictions, the Australian Capital Territory Legislative Assembly has a general law-making power in relation to the Territory.

The Assembly comprises 25 members elected from 5 multi-member electorates (each providing 5 members) using a modified Hare-Clark voting system similar to that used for Senate elections. An interesting feature of the Australian Capital Territory system is that there is no one office holder performing the functions of administrator or governor. The functions ordinarily performed by a governor are spread among various officers, including the Governor-General.

As far as developing towards statehood is concerned, the position of the Australian Capital Territory creates special problems. This is because the Australian Capital Territory is, or at least includes, the seat of government of the Australian Commonwealth, which has a status specially recognised in sections 52(i) and 125 of the Constitution. Section 125 provides that the seat of government of the Commonwealth shall be within territory granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth. This means that the Australian Capital Territory, to the extent it comprises the seat of government of the Commonwealth, cannot become a State of Australia (Capital Duplicators (No 1) (1992)).

Norfolk Island

In 1979, the Commonwealth Parliament granted limited self-government to Norfolk Island. The Norfolk Island Act 1979 established a Legislative Assembly of 9 elected members. It had power, subject to various restrictions, to make laws for the peace, order and good government of the territory. An Administrator administered the government of the Territory, on advice from an Executive Council. In 2015, the Commonwealth Parliament abolished the Norfolk Island Legislative Assembly and the Norfolk Island Executive Council, which comprised those members of the Legislative Assembly who formed the Norfolk Island ministry. The power to make laws for Norfolk Island is now exercised by the Governor-General in Council, and executive powers are now vested mainly in the relevant Commonwealth minister.

The changes made to the governance of Norfolk Island mean that it can no longer be regarded as a self-governing territory. Rather, its governance arrangements are now similar to those of the Indian Ocean territories of Christmas Island and Cocos (Keeling) Islands.

The Commonwealth legislation abolishing self-government was considered by the Australian Parliament as necessary to provide for the sustainable economic and social development of Norfolk Island. Together with the changes to governance arrangements, Commonwealth legislation extended many Commonwealth social security, immigration and health care arrangements to Norfolk Island which had not previously applied there. Various aspects of the Australian tax system were also made to apply for the first time. This was viewed as consistent with the principle that Norfolk Island residents should have the same obligations and receive the same access to benefits as other Australians. Despite these considerations, the abolition of self-government remains a point of contention among significant numbers of Norfolk Islanders.

Other Territories

In addition to the Northern Territory, Australian Capital Territory and Norfolk Island, the other territories are:

the Jervis Bay Territory, on the New South Wales south coast, east of Canberra
Cocos (Keeling) Islands, in the Indian Ocean near Indonesia
Christmas Island, also in the Indian Ocean near Indonesia
Heard Island and McDonald Islands, in the Indian Ocean near Antarctica
the Australian Antarctic Territory
Ashmore and Cartier Islands, in the Timor Sea, and
the Coral Sea Islands Territory.

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