Research Paper no. 21 2007–08
Northern Territory statehood: major constitutional
issues
Dr Nicholas
Horne
Politics and Public Administration Section
15 February 2008
|
This research paper surveys the major constitutional issues
relating to Northern Territory statehood and gives an indication of
the complexities and nuances involved. The application of
Commonwealth legislation to the Territory after statehood is also
discussed. Background is provided on the Northern Territory s
constitutional development and the statehood timeline.
The major constitutional issues relating to statehood
include:
- the use of section 121 of the Australian Constitution for
granting statehood
- the implementation of a constitution for the Northern Territory
as a new state under section 106 of the Australian
Constitution
- representation of the Territory as a new state in the
Commonwealth Parliament and
- the availability of section 122 of the Australian Constitution
in relation to the Territory after statehood.
Most of these issues will be the subject of comprehensive
negotiations between the Commonwealth and the Northern Territory
prior to any grant of statehood. There is a longstanding
expectation within the Territory, however, that statehood should
put the Northern Territory on a footing of constitutional equality
with the existing states.
The Commonwealth has been reluctant in the past to endorse
constitutional equality per se for the Northern Territory as a new
state, particularly in relation to parliamentary and executive
power. There is potential for tension between the expectations of
the Territory and the intentions of the Commonwealth, particularly
regarding matters such as the Territory constitution and the level
of Senate representation. However, the formal stance of the new
Rudd Commonwealth Government in relation to the terms and
conditions of statehood remains to be seen.
|
Contents
Executive summary
Introduction
Background
The constitutional development of
the Northern Territory
The statehood timeline
Major constitutional
issues
The mechanism for admitting or
establishing a new state: section 121
A Northern Territory constitution and section
106
Representation in the Commonwealth
Parliament
The position of the Northern Territory
The effect of a new state on parliamentary numbers: the nexus
requirement in section 24
The availability of section
122 in relation to the Northern Territory after statehood
Commonwealth legislation applying to the Northern
Territory
Conclusion
Glossary
|
AGD
|
Attorney-General s Department (Cwlth)
|
|
ALP
|
Australian Labor Party
|
|
HRSCLCA
|
House of Representatives Standing Committee on Legal and
Constitutional Affairs
|
|
NTSSC
|
Northern Territory Statehood Steering Committee
|
Acknowledgements
The author would like to thank Austin Asche, Scott Bennett,
Chris Lawley, Cathy Madden, Marilyn Harrington, and Diane Spooner
for their assistance in the preparation of this research
paper.
Introduction
The proposition of statehood for
the Northern Territory has been part of the political landscape
since at least the 1950s. The establishment of a new state within a
nation has been called one of the most difficult political
decisions a federation can attempt , and the Northern Territory
experience to date certainly reveals that statehood is no
straightforward endeavour.[1]
The major constitutional issues relating to Northern Territory
statehood include:
- the use of section 121 of the Australian Constitution for
granting statehood
- the implementation of a constitution for the Northern Territory
as a new state under section 106 of the Australian
Constitution
- representation of the Territory as a new state in the
Commonwealth Parliament and
- the availability of section 122 of the Constitution in relation
to the Northern Territory after statehood.
The purpose of this paper is to survey these matters and to give
an indication of the complexities and nuances involved;
consideration is also given to the application of Commonwealth
legislation in the Territory after statehood. Background is also
provided on the Northern Territory s constitutional development and
on the statehood timeline. This paper does not consider the
arguments for and against statehood or internal Territory
matters.[2]
In addition to the constitutional issues, there are a number of
other significant and complex statehood matters that arise out of
the Territory s relationship with the Commonwealth. These
include:
- the possession and control of Commonwealth land and uranium
resources in the Territory
- indigenous land rights
- the possession and control of the Kakadu and Uluru-Kata
Tjuta National Parks and the Ashmore Reef and Cartier Island
offshore reserves
- industrial relations regulation in the Territory and
- financial and economic arrangements between the Territory and
the Commonwealth.
These matters, which are beyond the scope of this paper, have
received recent consideration by the House of Representatives
Standing Committee on Legal and Constitutional Affairs in its
report on Northern Territory statehood (considered further
below).
The broad suite of issues surrounding statehood will be the
subject of comprehensive negotiations between the Commonwealth and
the Northern Territory prior to any grant of statehood. One
certainty, however, is the longstanding expectation within the
Northern Territory that statehood should put the Territory on a
footing of equality with the States. In 1986 the Chief Minister of
the Northern Territory stated that Constitutional and political
equality, long denied to Territorians and long sought-after, is the
keystone and the prime objective of my Government s policy
.[3] The following
year, a Northern Territory Legislative Assembly Committee
established to investigate a constitution for the Territory and
statehood issues affirmed that Statehood for the Territory must
provide for constitutional equality with the other States. [4] More recently, the
Northern Territory Statehood Steering Committee (NTSSC), which was
established in 2004 by the Legislative Assembly to assist with the
development of a new Territory constitution and with promoting
statehood education and awareness, has contended that:
Statehood for the Northern Territory must mean
eventual equality with the existing States.
Anything less than an equal partnership with the other States in
the federation would be unacceptable to most Territorians.[5]
The Commonwealth, for its part, has recognised the importance of
the claim for constitutional equality in relation to individual
rights. In 1996 a joint Commonwealth/Northern Territory Statehood
Working Group, which considered a range of issues pertinent to
statehood, stated in its report that:
It is difficult to identify any sound reason why
residents of the new State should not enjoy the same constitutional
rights and privileges as those enjoyed by residents of the other
States, subject to the issue of Senate representation. Indeed it
seems unlikely that the Commonwealth Parliament could
constitutionally deprive a resident of a new State of the
protection conferred by provisions such as section 80 - trial by
jury.[6]
However, the report of the Working Group also revealed the
Commonwealth s reluctance to provide an endorsement of
constitutional equality per se for the Northern Territory as a new
state, particularly in relation to parliamentary and executive
power:
the Commonwealth raises the question whether the
Parliament and the Executive of the new State should have precisely
the same powers vis-a-vis the Commonwealth as those of the other
States. For example, the Commonwealth might argue that there is no
compelling reason to maintain strictly a demarcation of power
prescribed in 1901 when subsequent developments have rendered that
demarcation artificial and created practical problems. The
Commonwealth suggests that this means that there may be
considerations other than the concept of 'equality' which are
relevant to determining what terms and conditions should be made or
imposed on the conferral of Statehood. The Northern Territory is
opposed to this view.[7]
Whether the Commonwealth still holds this view remains to be
seen, for little or no further work on the possible terms and
conditions of statehood has been conducted by the Commonwealth
since the failed Northern Territory statehood referendum of
1998.
The Northern Territory has had an interesting and eventful
constitutional history. The area that would eventually become the
Northern Territory was part of the Colony of New South Wales from
1825 to 1863 before being annexed by the Province of South
Australia in 1863.[8]
The Territory remained part of South Australia until 1911, at which
point it was formally surrendered by South Australia to the
Commonwealth.[9] The
terms of the Australian Constitution, enacted in 1900, provided the
Commonwealth with a plenary power to legislate for territories and
to regulate the representation of territories in the Commonwealth
Parliament:
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.[10]
The Commonwealth assumed government of the Northern Territory
on 1 January 1911 a state of affairs that would continue,
with some variations, for almost 70 years. Notable developments
during the first 50 years of Commonwealth government included the
division of the Territory into two separate administrative
territories, North Australia and Central Australia, from 1926 to
1931,[11] the
military administration of the Territory from 1942 to 1946, and the
establishment of the Northern Territory Legislative Council by the
Commonwealth in 1947.[12] The Legislative Council was established as a limited
ordinance-making body, and, for most of its existence, consisted of
a majority of appointed members and a minority of elected
members.[13]
The 1970s was a particularly eventful decade for the
constitutional development of the Northern Territory. In 1974 the
Commonwealth established the Northern Territory Legislative
Assembly, which replaced the Legislative Council.[14] The Assembly was a fully-elected
body consisting of 19 members, although the scope of the Assembly s
powers differed little from that of the Legislative Council. In
1977, following a successful referendum, section 128 of the
Australian Constitution was altered to enable Northern Territory
(and ACT) electors to vote in constitutional referendums.[15] Perhaps the single
most important development of the 1970s, however, was the grant of
self-government to the Territory by the Commonwealth in
1978.[16] This
involved:
- the establishment of the Northern Territory as a body politic
under the Crown
- the conferral of power on the Legislative Assembly to legislate
for the peace, order and good government of the Territory
- the establishment of an Executive and
- the conferral of executive authority in respect of certain
specified matters.[17]
The grant of self-government, however, was (and is) limited by
provision for the disallowance of legislation by the
Governor-General, by the withholding of executive authority from
the Northern Territory Government in respect of certain
matters,[18] and by
the continued power of the Commonwealth to legislate for the
Territory under section 122 of the Australian Constitution. The
Commonwealth exercised this constitutional power in 1997 in
relation to Territory euthanasia laws.[19]
In terms of Commonwealth parliamentary representation, the
Northern Territory was granted a single member of the House of
Representatives in 1922.[20] The member had no voting rights, could not be elected
as Speaker of Chairman of Committees, and was not counted for House
of Representatives quorum or majority determination purposes. This
situation was augmented marginally in 1936 when the member was
granted voting rights in regard to disallowance motions for
Territory ordinances, and, in 1959, the member was granted full
voting rights in regard to proposed Northern Territory legislation
and disallowance motions relating to regulations made under
Territory ordinances.[21] It was not until 1968, however, that the Northern
Territory member was granted the powers, immunities and privileges
possessed by members from the States.[22] In 1990 the Commonwealth
Electoral Act 1918 was amended to ensure that at least one
member of the House of Representatives would be chosen in the
Northern Territory at Commonwealth general elections.[23]
A redistribution of the Northern Territory into two electorates
for Commonwealth elections in 2000 meant that two Territory members
were elected to the House of Representatives at the Commonwealth
general election in 2001[24] a level of representation that has subsequently been
preserved by Commonwealth legislation.[25] With regard to Senate representation,
the Commonwealth granted the Northern Territory two Commonwealth
Senate positions in 1974.[26] The Territory senators have the powers, privileges and
immunities possessed by State senators, but differ from their State
counterparts in that their terms are concurrent with those of
members of the House of Representatives.
On 13 May 1958, the Commonwealth Minister for Territories, Paul
Hasluck, stated that:
The Government has a strong interest in the
development of the Northern Territory, including its political
development The Government endorses the objectives towards which,
as Minister for Territories, I have worked steadily for seven
years, namely the eventual creation of the Northern Territory as a
north Australian State either in the present boundaries or with a
readjustment of boundaries. We hope to see its population grow and
its resources develop so that it will reach in the shortest
possible time full self-governing status.[27]
Almost 50 years later, Northern Territory statehood remains an
objective rather than a reality. Yet statehood has certainly gained
prominence since the mid-1970s and has been the focus of
considerable attention and development since the mid-1980s. The
issue received national publicity in November 1975 with the
announcement by Prime Minister Malcolm Fraser that statehood would
be achieved within five years.[28] While this did not eventuate, the establishment
of a Statehood Executive Group by the Northern Territory Government
in 1985 inaugurated a period of serious investigation and
development of the statehood question by a number of government and
parliamentary bodies, including the joint Commonwealth/Northern
Territory Statehood Working Group.[29] This period culminated in the
production of a final draft constitution for the Northern Territory
in 1996 by the Northern Territory Legislative Assembly Sessional
Committee on Constitutional Development.[30]
In 1998 a number of developments transpired. A constitutional
Statehood Convention was convened early in the year and adopted a
draft constitution for the Territory based on that prepared by the
Sessional Committee; the draft constitution was subsequently
formally adopted by the Legislative Assembly in August.[31] Also in August 1998,
Prime Minister John Howard announced Commonwealth support for the
Territory becoming a state by 1 January 2001.[32] On 3 October 1998 a referendum
on statehood was held in the Northern Territory and the following
question was submitted to Territory electors:
Now that a constitution for the State of the
Northern Territory has been recommended by the Statehood Convention
and endorsed by the Northern Territory Parliament:
DO YOU AGREE that we should become a
State?[33]
The referendum was unsuccessful, with a majority (51.3 per cent)
No vote.[34] The
following year the Northern Territory Legislative Assembly Standing
Committee on Legal and Constitutional Affairs found that major
reasons for the majority No vote included:
a lack of information and understanding about
Statehood, concern about the Statehood Convention process and the
events surrounding it, a lack of trust in those responsible for
last year s process, inadequate consultation, the role and approach
of the Chief Minister, and a protest against the then Chief
Minister and the arrogance of politicians .[35]
The Committee further found that indigenous Territorians voted
No as a bloc for these and other reasons.[36]
The goal of statehood received fresh impetus in May 2003 with
the announcement by Northern Territory Chief Minister Clare Martin
of a new, community-based statehood campaign.[37] The new campaign would include
the drafting of a new Territory constitution and the holding of a
second statehood referendum: 1 July 2008, the 30th
anniversary of self-government, was identified as a flexible target
date for the referendum. Milestones in the statehood campaign to
date have included the establishment of the NTSSC in 2004 to
facilitate the campaign and the appointment of the Northern
Territory s first Minister for Statehood in September 2006.[38]
At the Commonwealth level, in February 2007 the Northern
Territory Minister for Statehood and his Opposition counterpart met
with the Commonwealth Attorney-General and the Commonwealth
Minister for Local Government, Territories and Roads in Canberra to
discuss the implications of statehood.[39] Little seemed to be achieved at this
meeting, however, and following the meeting the Attorney-General
was reported to be unconvinced of the existence of popular support
for statehood in the Territory and of the view that such support
must be demonstrated.[40]
Statehood received expressions of support from the Australian
Labor Party (ALP) at a number of points when it was in opposition.
Prior to the 1998 federal election and the Northern Territory
statehood referendum, the ALP indicated its support for statehood
and a popularly-elected Constitution Convention.[41] In September 2004 the Opposition
Shadow Minister for Tourism, Regional Services and Territories
stated that Labor supports the move toward Statehood for the
Northern Territory providing this reflects the aspirations of
Territorians and no Territorian or group of Territorians are
disadvantaged due to the Territory becoming a State .[42] ALP campaign documents
released prior to the 2004 federal election also expressed support
for statehood and for a new Territory constitution.[43] While statehood was
not covered in ALP campaign documentation prior to the 2007 federal
election, in early 2007 the Northern Territory Chief Minister
indicated that (then) Opposition Leader Kevin Rudd supported
statehood.[44]
In the Commonwealth parliamentary context, the House of
Representatives Standing Committee on Legal and Constitutional
Affairs (HRSCLCA) commenced an inquiry in 2005 into the federal
implications of statehood and recent statehood
developments.[45]
The Committee concluded its inquiry in May 2007; its single
recommendation is discussed below. It is also worth noting here
that statehood has received expressions of support at the state
government level. In February 2007 the Council for the Australian
Federation, which consists of state and territory premiers and
chief ministers, indicated its support for the goal of Northern
Territory statehood.[46]
Whether or not the second statehood referendum is held in the
Territory on 1 July 2008 remains to be seen. The NTSSC, which has
conducted a very active education and awareness campaign since its
establishment, produced an updated draft work plan in February
2006. The work plan states that the aim is to achieve statehood in
a timely, cost effective and efficient manner , and envisages 2007
08 as a possible timeframe for a second constitutional Statehood
Convention and plebiscite.[47] From May to August 2007 a plebiscite on statehood was
conducted in the Northern Territory by the Australian Electoral
Commission for the NTSSC. A total of 809 electors took part in the
plebiscite, with results indicating a high level of support for the
prospect of the Territory becoming a state and for the Territory as
a new state having the same powers as the existing states (76 and
87 per cent respectively).[48] Despite this activity, it is quite possible that the
second referendum could be a medium-term proposition given the
little time remaining until the 1 July 2008 target date, the
initial casting of this date as flexible, and the fact that the
NTSSC work plan indicates that timeframes are flexible.[49] The timing of
statehood itself remains a matter for conjecture.
In August 1998, Prime Minister John Howard indicated that the
preferred mechanism for achieving Northern Territory statehood
would be Commonwealth legislation enacted under section 121 of the
Australian Constitution.[50] In a May 2007 discussion paper, the NTSSC indicated its
support for section 121 as the preferred mechanism for achieving
statehood.[51]
Section 121, which has not yet been utilised by the Commonwealth,
provides that:
The Parliament may admit to the Commonwealth or
establish new States, and may upon such admission or establishment
make or impose such terms and conditions, including the extent of
representation in either House of Parliament, as it thinks
fit.[52]
Various commentators have considered the different aspects of
section 121. With regard to the distinction made in the section
between the admission and the establishment of new states, Quick
and Garran, in their early commentary on the Constitution, took the
view that admission can only refer to the entry into the
Commonwealth of political communities which, prior to their entry,
were duly constituted colonies (for example New Zealand, New Guinea
and Fiji).[53]
Establishment, however, includes the formation of States either out
of Federal territory, or out of States already in existence, by
sub-division or otherwise .[54] Some subsequent commentators have maintained this
view,[55] although
one commentary has suggested that:
As to the formation of new States from Territories
which are geographically part of the Commonwealth, it is an
uncertain question whether such Territories are established or
admitted . In so far as a Territory which is to be admitted to
Statehood would have already attained the status of a
self-governing Territory, it would be appropriate to describe the
process as admission If this wide interpretation of admit is
adopted, it would be more appropriate to restrict the word
establish to the formation of a new State from an existing State or
States [56]
The other important element of section 121 is the power of the
Commonwealth Parliament, upon the admission or establishment of a
new state, to make or impose such terms and conditions, including
the extent of representation in either House of Parliament, as it
thinks fit . Quick and Garran considered this power, in relation to
representational equality with other States, to be a broad one:
Under the Constitution of the Commonwealth the
Federal Parliament has a free hand in deciding the terms and
conditions under which a new member may be admitted into the
Federal family system. It will be at liberty to impose such
stipulations as it thinks fit, unhampered by considerations of
equality of Original States It is to be noted that the rule of
equal representation in the Senate is only mandatory in the case of
Original States; new States cannot demand parity of senatorial
representation as a right; the Federal Parliament may assign to
such States the number of senators which it thinks fit No minimum
number of representatives is prescribed in the Constitution for new
States; and it would seem that even the principle of proportional
representation in the House of Representatives might under this
section be varied in the case of new States. The Federal Parliament
would, clearly, under the power conferred by sec. 121, be able to
fix the minimum number of senators, as well as the minimum number
of representatives, to be assigned to the new States.[57]
It has also been suggested that the language of section 121
implies that there must be some degree of representation for a new
state in the Commonwealth Parliament.[58] The High Court of Australia has given
some consideration to the issue of parliamentary representation of
new states in connection with section 121; this is discussed
further below.
Commentators after Quick and Garran have noted the breadth of
the terms and conditions power in section 121, but have also
identified some potential limitations on the exercise of that
power. For example, John Toohey, a former Justice of the High Court
of Australia, observed that section 121 is expressed in broad terms
,[59] but also
suggested that the High Court would not be likely to permit the
imposition of any term or condition which derogated from the rights
in relation to States [60] in the following sections of the Australian
Constitution:
- section 51 (ii) (Commonwealth taxation laws not to discriminate
between states or parts of states)
- section 51 (xxxi) (Commonwealth laws for the acquisition of
property from states to be on just terms)
- section 55 (Commonwealth taxation laws shall deal only with the
imposition of taxation and with only one subject of taxation, and
taxation laws imposing customs and excise duties shall deal with
such duties only)
- section 80 (trial on indictment of any offence against any
Commonwealth law shall be by jury)
- section 92 (trade, commerce, and intercourse among the states
shall be absolutely free)
- section 99 (Commonwealth trade, commerce or revenue laws shall
not give preference to one state or any part of a state over
another state or any part thereof)
- section 116 (the Commonwealth shall not legislate in relation
to religious matters)
- section 117 (a resident of a state shall not be subject in any
other state to any disability or discrimination which would not be
equally applicable if the resident had been in the other
state)
- section 118 (full faith and credit shall be given throughout
the Commonwealth to the laws, acts, records, and judicial
proceedings of every state)
- section 119 (the Commonwealth shall protect every state against
invasion and, upon application by the government of a state,
against domestic violence) and
- section 123 (the Commonwealth may increase, diminish or
otherwise alter the limits of a state with the consent of the state
parliament and the approval of a majority of electors in the
state).[61]
Toohey maintained that There is nothing in the Constitution
which supports a confinement of these provisions to original
States; on the contrary, the Constitution evinces a clear intention
that a reference to States is a reference to both original and new
States .[62]
Professor Geoffrey Sawer identified a number of further provisions
of the Constitution that, in his view, could not be encroached upon
by the exercise of the terms and conditions power in section
121:
It is unlikely that the High Court would allow the
terms and conditions to displace as to the new state the
distribution of legislative power between Commonwealth and States
provided by ss. 51, 61 and 71, and 109. Provision such as the free
trade guarantee 92 and the fiscal restrictions or facilities 90,
91, 96 would apply.[63]
The proposition has also been advanced that the upon such
admission or establishment element of section 121 limits the
exercise of the terms and conditions power to the point of
admission or establishment of a new state and not beyond: The power
is to be exercised only at or about the time of admission and
establishment; it is not a continuing power .[64] In a related vein, it has also
been suggested that section 121 could not be used after the
admission or establishment of a new state to revoke or amend the
legislation granting statehood.[65] One other commentator has expressed the view,
however, that the upon admission or establishment element should
not be understood in relation to the point of admission or
establishment of statehood, but rather as meaning that the
Parliament may impose such terms as it thinks fit as conditions of
admission or establishment .[66]
It is to be expected that the terms and conditions of a grant of
statehood, which will encompass many, if not all, of the statehood
issues to be resolved, will be the subject of detailed and
comprehensive negotiations between the Commonwealth and Northern
Territory Governments prior to any grant of statehood under section
121. In its September 2006 submission to the HRSCLCA statehood
inquiry, the NTSSC delineated its position regarding the
negotiation of the terms and conditions of statehood:
It is important that an agreed process to
determine any terms and conditions is adopted. The process should
include realistic time frames for planned outcomes. Such an
agreement will assist the Northern Territory to make budget
allocations for timely education programs, plebiscites and other
requirements and will identify benchmarks against which citizens
may assess what progress is being made. The previous Northern
Territory Committee recommended the negotiation process should go
hand in hand with Territory constitutional development.
When it comes to managing emerging issues related
to the terms and conditions for Statehood, it would be open to the
Commonwealth to determine the only term and condition would be
equality with the existing States.[67]
The NTSSC also called on the Commonwealth to declare its
intentions regarding statehood and to engage with the Northern
Territory on statehood matters.[68] The Commonwealth Attorney-General s Department
(AGD), in its submission to the same inquiry, indicated that it has
not undertaken any work on the possible terms and conditions of a
grant of statehood since the 1998 Territory referendum.[69] The Commonwealth
Department of the Prime Minister and Cabinet, which also made a
submission to the inquiry, declined to answer a query from the
Committee concerning Commonwealth parliamentary representation of
the Territory on the basis of this being a policy issue on which it
would be inappropriate for the department to pre-empt government
consideration .[70]
The HRSCLCA completed its statehood inquiry in May 2007 and
concluded that, while it is not appropriate for the Commonwealth to
drive the statehood agenda for the Northern Territory , there is
nevertheless a real danger of statehood being in a stalemate if the
Commonwealth does not progress matters in some way .[71] The Committee
accordingly recommended that:
the Australian Government update and refine its
position on Northern Territory statehood and re-commence work on
unresolved federal issues.[72]
This unanimous recommendation from a Commonwealth parliamentary
committee now awaits a Commonwealth Government response. It is
possible that the recommendation will induce the Commonwealth to
examine the suite of federal statehood issues afresh and arrive at
a policy position regarding the terms and conditions of statehood.
It is not clear, however, what the formal stance of the new Rudd
Government will be regarding the terms and conditions of statehood,
and it is also possible that the Government will not accept the
recommendation.
A Northern Territory constitution and section
106
Two matters that will be important in negotiations regarding the
terms and conditions of statehood are the future Northern Territory
constitution and its implementation in relation to section 106 of
the Australian Constitution. Section 106 provides for the
preservation of state constitutions after federation as
follows:
The Constitution of each State of the Commonwealth
shall, subject to this Constitution, continue as at the
establishment of the Commonwealth, or as at the admission or
establishment of the State, as the case may be, until altered in
accordance with the Constitution of the State.[73]
The Northern Territory does not currently have a constitution;
as noted above, the drafting of a new Territory constitution is an
element of the new statehood campaign that was announced in
2003.[74] In its
2006 submission to the HRSCLCA statehood inquiry, the NTSSC
indicated its view that the Northern Territory will need to have a
constitution in place prior to statehood which at least puts the
Northern Territory in the same position as the other States of
Australia upon entry to the Federation .[75] Professor Dean Jaensch has suggested
that In political [sic] terms, it would be
necessary for such a document to be part of the [statehood] process
.[76] The NTSSC has
also stated its belief that the Commonwealth should have no role in
preparing a proposed Northern Territory constitution provided such
a constitution is consistent with the Commonwealth Constitution and
the Australia Acts .[77]
In its May 2007 discussion paper the NTSSC also indicated that a
future Northern Territory Constitution should be in force just
prior to admission as a new State in order to attract the
protection of section 106 .[78] Twelve years ago a different position was
articulated by the joint Commonwealth/Northern Territory Statehood
Working Group, which stated in its 1996 report that having a
constitution in place prior to statehood was not the favoured
stance of the Northern Territory Government.[79]
The Statehood Working Group also noted some issues arising in
relation to the implementation of a Northern Territory
constitution. Firstly, the Working Group indicated that, in order
to be in place prior to statehood, a Northern Territory
constitution would need to be passed by the Commonwealth Government
under section 122 of the Australian Constitution and the
Northern Territory (Self-Government) Act 1978
would need to be repealed.[80] In the 1992 High Court decision of Capital
Duplicators Pty Ltd v. Australian Capital Territory,[81] Brennan, Deane and
Toohey JJ noted that the terminology of s. 122 emphasizes that the
Parliament may prescribe the constitutional arrangements for the
government of a territory .[82]
Secondly, the Working Group indicated that, upon statehood,
section 106 of the Australian Constitution would be likely to
preserve a Northern Territory constitution in existence before
statehood or implemented upon statehood (unless the Commonwealth
could validly retain power to alter the Territory constitution
under the terms and conditions of statehood). The Working Group
also observed, however, that at any point prior to a grant of
statehood an existing Territory constitution would, as a
Commonwealth Act, be subject to change by the Commonwealth.[83] The Northern Territory
Legislative Assembly Sessional Committee on Constitutional
Development similarly noted in 1996 that a Territory constitution
implemented prior to statehood would not have the protection of the
Commonwealth Constitution [sic] .[84] The Sessional Committee did
note, however, that having a Territory constitution in place prior
to statehood could have certain advantages, such as separating
constitutional issues from political statehood concerns and
reinforcing the constitutional position of the Northern Territory
in advance of Statehood .[85]
The relationship between state constitutions and section 106 has
been considered by the High Court on a number of occasions. In the
1996 decision of McGinty v. Western Australia,[86] Toohey J stated that
the scope and operation of s 106 are by no means settled ,[87] and that Historically
it has been seen, for the most part, as offering protection to the
States against the exercise of Commonwealth power .[88] In the 1947 decision
of Melbourne Corporation v. Commonwealth,[89] for example, Latham CJ stated
that State constitutional powers are, subject to the Commonwealth
Constitution, expressly preserved by the Commonwealth Constitution
ss. 106, 107 .[90]
In the 1989 decision of Re Tracey; Ex
parte Ryan,[91] Brennan and Toohey JJ expressed the view that section
106 protects state court functions from Commonwealth legislative
interference by way of its maintenance of state constitutions:
State courts are an essential branch of the
government of a State and the continuance of State Constitutions by
s. 106 of the Constitution precludes a law of the Commonwealth from
prohibiting State courts from exercising their functions.[92]
The operation of section 106 is not settled, however, and the
High Court has also indicated that the maintenance of state
constitutions by section 106 is subject to Commonwealth law enacted
under section 51 (xxxviii) of the Australian Constitution.[93]
One additional possibility, noted by the Statehood Working
Group, would be the implementation of a new Northern Territory
constitution as part of the grant of statehood under section 121 of
the Australian Constitution.[94] At least one commentator has also suggested that
the terms and conditions power in section 121 would extend to the
modification of the constitutional framework under which the
Territory Government operates .[95] The Statehood Working Group also recognised this
possibility and noted that this raises political considerations
.[96] In 1998,
Prime Minister John Howard indicated that a Northern Territory
constitution would need to be acceptable not only to Territorians
but to the rest of the Australian people and identified a
consultative approach to formulating the constitution as the way
forward.[97]
In its submission to the HRSCLCA statehood inquiry, the NTSSC
stated that constitutional equality of a new State with existing
States is a central issue and maintained that the Commonwealth
should not reserve to itself any power to later amend the new
constitution or to place any fetters on future State amendment of
same .[98] One
commentator has recognised the importance of this issue for the
Territory:
The most pressing question from the Northern
Territory s point of view, is whether rigidity can be imposed upon
the Constitution of a new State by the inclusion of a condition of
continuing effect, in the Commonwealth s enabling Act, that no
amendment may be made to the State Constitution unless it complies
with a particular manner and form requirement. On the political
side, States generally would object to the Commonwealth imposing
and controlling the means of amending the State s Constitution,
simply as a matter of principle. However, such an outcome might be
acceptable to the Northern Territory if it were necessary to
achieve Statehood.[99]
The NTSSC has already sounded a warning in relation to the
exercise of Commonwealth power and the integrity of a future
Territory constitution:
Any attempt by the Commonwealth to autocratically
impose unacceptable terms and conditions, particularly if they
purport to conflict with the new State Constitution, would doom the
whole exercise to failure.[100]
For the Northern Territory, a meaningful constitution that
enshrines basic equality with the states and is not subject to
Commonwealth interference is clearly an integral element of
statehood. The importance of a constitution for the Territory also
appears to have been recognised by the Commonwealth. Beyond this,
however, there is at least the potential for tension to arise
between the expectations of the Territory and the intentions of the
Commonwealth (whatever these may be). The implementation of a
Northern Territory constitution will be a significant matter for
negotiations between the Commonwealth and the Territory.
Aside from the current numerical levels of representation, the
fundamental point of difference between the Northern Territory and
the states in the area of Commonwealth parliamentary representation
is the constitutional position of the Territory relative to that of
the states. Sections 7 and 24 of the Australian Constitution
provide, respectively, that there shall be a minimum of six
senators for each Original State and a minimum of five members of
the House of Representatives from each Original State.[101] Section 7 also
requires that the Senate representation of the Original States be
equal, and section 24 prescribes the basis upon which the number of
members and senators for the states is to be determined as
follows:
The House of Representatives shall be composed of
members directly chosen by the people of the Commonwealth, and the
number of such members shall be, as nearly as practicable, twice
the number of the senators.
The number of members chosen in the several States
shall be in proportion to the respective numbers of their people,
and shall, until the Parliament otherwise provides, be determined,
whenever necessary, in the following manner:
- a quota shall be ascertained by dividing the number of
the people of the Commonwealth, as shown by the latest statistics
of the Commonwealth, by twice the number of the senators;
- the number of members to be chosen in each State shall be
determined by dividing the number of the people of the State, as
shown by the latest statistics of the Commonwealth, by the quota;
and if on such division there is a remainder greater than one-half
of the quota, one more member shall be chosen in the State.[102]
In contrast to the Original States, no minimum level of
representation for the Northern Territory, either in the Senate or
in the House of Representatives, is enshrined in the Australian
Constitution. Indeed, as noted above, section 122 of the
Constitution explicitly provides the Commonwealth Parliament with
the power to provide for the parliamentary representation of the
Territory to the extent and on the terms which it thinks fit . The
level of Territory representation in the Commonwealth Parliament
(currently two senators and two members of the House of
Representatives) is governed by Part III of the Commonwealth
Electoral Act 1918.
The application of sections 7 and 24 in relation to new states,
in conjunction with the exercise of the terms and conditions power
in section 121, has received some consideration by the High Court.
In the 1977 decision of Queensland v. The
Commonwealth,[103] Aickin J, in a dissenting judgment, indicated that the
terms and conditions power in section 121 would not extend to the
removal of Commonwealth parliamentary representation for a new
state:
It appears to me that it would not be within the
power of the Parliament under s. 121 to admit or establish a new
State upon the basis that there were to be no senators for such a
State or that they were to be selected otherwise than by being
directly chosen by the people of such a State, nor any members of
the House of Representatives chosen in such a State. Section 121
shows that it is only the extent , and not the fact or mode, of
representation which is committed to the Parliament.[104]
In the earlier decision of Western Australia v. The
Commonwealth (1975),[105] Murphy J observed that it appears from s. 7 and
s. 121 that the constitutional guarantee of equal representation of
States in the Senate and minimum number of six senators for each
State is applicable only to original States and not to new States
.[106] In the
same decision Barwick CJ stated that:
ss. 7 and 24 will operate with respect to the new
State when admitted But, not being an original State, the number of
senators which the new State can elect to the Senate would need to
be prescribed. To some extent s. 24 will prescribe the
representation of the residents of the new State, who, because it
is a State, become part of the people of the Commonwealth for the
purpose of both sections. But there is scope for a limitation to be
placed upon the number of members as well as upon the number of
senators which the electors of a new State may elect: and such a
limitation might be regarded as affecting the extent of the
representation. Thus, by determining the extent of the
representation , the numerical strength of the representation
provided by the Constitution itself, may be determined by the
Parliament at the point of, and as a term and condition of, the
admission of the new State.[107]
If the Northern Territory, as a new state, would not receive as
of right the minimum levels of representation in the Commonwealth
Parliament that are guaranteed for the Original States by the
Constitution, but would nevertheless be entitled to representation,
the question then becomes what the level of this representation
would be. In its 1996 report, the Statehood Working Group
identified a range of options for Commonwealth parliamentary
representation of the Territory as a new state:
- representation on the same basis as an Original State
- Senate representation equal to the states (12 senators) and
House of Representatives representation on the section 24 quota
basis
- Senate representation under a formula designed to achieve
eventual equality or based on population increases and House of
Representatives representation on the section 24 quota basis
and
- continuation of (then) current representation levels.[108]
The option of Senate representation under a formula designed to
achieve eventual equality, unrelated to population, together with
House of Representatives representation on the basis of the section
24 quota, emerged in the report as the least problematic of these
options.
In 1986, the Chief Minister of the Northern Territory stated
that, regarding representation in the House of Representatives, the
Territory as a state would abide by the constraints of the quota
set out in section 24 of the Constitution.[109] The Chief Minister also stated in
no uncertain terms that the new state would expect equal
representation in the Senate with the other States, if not
immediately then over time, and that No relationship between Senate
representation and population size will be accepted .[110]
Ten years later, the position of the Northern Territory
Government on these points was essentially unchanged. In its 1996
report, the Statehood Working Group noted that the Northern
Territory Government had indicated that it would not:
seek the constitutionally guaranteed minimum
representation of an Original State in the House of Representatives
of five members It is content to accept membership in that House on
the basis of the section 24 quota.[111]
Regarding Senate representation, the Working Group stated
that:
Although the Northern Territory Government seeks
ultimate equality in the Senate, it being the States House , the
former Chief Minister has clarified this by saying that the
Northern Territory s position should not necessarily be read as a
request for immediate full and equal representation upon the grant
of Statehood. The Northern Territory Government would consider a
formula for Senate representation which would ensure equality
within a reasonable time, provided that such a formula was not
linked to population size [112]
The Working Group also observed that the Northern Territory as a
new state would not be guaranteed the minimum levels of
representation provided for the Original States in sections 7 and
24 of the Constitution.[113] In 1998 Prime Minister John Howard discounted full
parity of Senate representation in the first instance, identifying
instead the possibility of three Senators to begin with followed by
increases in representation in line with increases in population
size.[114] In its
2006 submission to the HRSCLCA statehood inquiry, the NTSSC
recognised that the agreement on Senate representation should be
incorporated into the terms and conditions process and stated that
it supports equality Anything less than a partnership with the
other States in a federation will in the eyes of many Territorians
probably not be worth fighting for .[115]
Clearly, Commonwealth parliamentary representation of the
Northern Territory as a new state is a crucial matter for
statehood.[116]
It seems settled that the Territory, as a new state and not an
original State, would not be entitled to the minimum levels of
representation that the Constitution guarantees for the original
States. Past statements also suggest that the Territory would
accept representation in the House of Representatives according to
the quota basis set out in section 24. It should be noted, however,
that these statements were made prior to the Territory receiving
its second member of the House, and presumably the Territory would
not wish to see any reduction of its current level of
representation upon statehood. The main question requiring
resolution in negotiations between the Commonwealth and the
Territory may well be the initial and future levels of Senate
representation. The NTSSC has expressed the view that the
negotiations regarding parliamentary representation will need to be
resolved in advance of the second statehood referendum.[117]
One other issue that arises in this context is the effect that
the Northern Territory, as a new state, would have upon the overall
numbers in the Commonwealth Parliament due to the operation of the
nexus requirement in section 24 of the Constitution. Section 24
requires that the number of such members shall be, as nearly as
practicable, twice the number of the senators . In the 1977
decision of Attorney-General (NSW); Ex rel. McKellar v. The
Commonwealth,[118] the High Court held that only state senators and
members are relevant to the nexus requirement. In this decision
Gibbs J stated that the second part of the first paragraph of s.
24, the nexus provision, relates only to the number of members
chosen in, and to the senators chosen for, the States .[119]
If the Northern Territory was to achieve statehood, then the
question of whether the new state s members and senators would have
to be included in calculations for the nexus between the House of
Representatives and the Senate would need to be resolved. Inclusion
of Territory senators in the nexus calculation would likely mean an
increase in the number of members of the House of Representatives
allocated amongst the States.[120] In its 1996 report the Statehood Working Group
indicated that the weight of opinion on this matter favours an
interpretation of section 24 which would confine the operation of
the nexus requirement to the Original States .[121] However, the Working Group
also stated that the matter is not free from doubt .[122]
The Commonwealth Parliament s plenary power in section 122 of
the Constitution to legislate for Commonwealth territories would
presumably no longer be available in relation to the Northern
Territory after statehood. As one commentator has put it,
Commonwealth power persists over s 122 [sic] territories
as long as they remain territories. [123] In its 1996 report the Statehood
Working Group expressed the view that:
Assuming the grant of Statehood were made on the
basis that the new State should, vis-a-vis the Commonwealth, enjoy
equality with the Original States, the grant of Statehood would
remove the Commonwealth s legislative power in relation to all
those subject matters which are not expressly or by implication
conferred on it by the Constitution other than under section 122.
The Commonwealth would, for example, have no specific power over
environmental matters in the new State in the same way as it does
not have that power in the existing States.[124]
In the High Court s 1992 Capital Duplicators decision,
Mason CJ and Dawson and McHugh JJ located section 122 within the
context of a territory s progression towards and attainment of
statehood:
Section 122 forms part of Ch. VI of the
Constitution Plainly enough, Ch. VI, in particular ss. 121 and 122,
contemplates that a Commonwealth territory may advance to
Statehood. In the course of its evolution towards Statehood, it is
natural, indeed inevitable, that a territory will be progressively
endowed with institutions appropriate to self-government Section
122 was and is the source of legislative power for the advancement
of the territories along this path towards the final step of
Statehood, at which point s. 121 becomes the relevant source of
power.[125]
A range of Commonwealth legislation currently applies to the
Northern Territory including legislation specific to the Territory
and legislation which has a broader application. Perhaps the most
obvious example is the Northern Territory
(Self-Government) Act 1978 and its attendant regulations;
other examples include the Aboriginal Land
Rights (Northern Territory) Act
1976, the Commonwealth Electoral Act 1918, the
Atomic Energy Act 1953, and the Environment Protection
(Alligator Rivers Region) Act 1978. Some Commonwealth
legislation applying to the Territory, such as the Northern
Territory (Self-Government) Act 1978, has been
enacted under section 122 of the Australian Constitution; other
legislation has been enacted under other constitutional heads of
power. Many issues surrounding statehood are bound up with
Commonwealth legislation applying to the Northern Territory.
It is clear that a grant of statehood would affect the suite of
Commonwealth legislation that applies to the Northern Territory.
Some level of repeal and/or amendment, for example, would almost
certainly be necessary (again, most obviously in relation to the
Northern Territory (Self-Government) Act 1978 and
regulations, particularly in the context of a Northern Territory
constitution). In its submission to the HRSCLCA statehood inquiry,
the AGD indicated that:
The establishment of the Northern Territory as a
state would have a significant impact on Commonwealth legislation
applying to the Territory. It would inevitably affect the
Northern Territory (Self-Government) Act 1978 and
other Commonwealth legislation with differential operation as
between the states and the territories.[126]
As to specifics, the AGD stated that it is not possible to
address this issue in any detail without making assumptions about
the terms and conditions upon which statehood may be conferred
.[127] In its
1996 report, the Statehood Working Group identified at least 28
Commonwealth Acts (including many of the examples noted above) with
specific or extended application to the Northern Territory that
could require repeal or amendment in the event of
statehood.[128]
In its recent report, the HRSCLCA also listed over 250 items of
Commonwealth legislation that could require minor amendment in
relation to statehood.[129] The Working Group further noted that some Commonwealth
legislation applying to the Territory at the point of statehood may
well have separate constitutional legitimacy apart from section 122
of the Constitution and could therefore remain in force after
statehood:
To the extent that the legislation can be
supported by the constitutional power of the Commonwealth otherwise
than under section 122 (e.g. under section 51(xxvi) - race power in
relation to Aboriginal land rights) there seems no constitutional
reason why the legislation could not continue to operate.[130]
For Commonwealth legislation not in this category, the Working
Group indicated that any continued application would need to be
specified and could either be dealt with in an agreement between
the Commonwealth and the Northern Territory or transferred to the
new state.[131]
In addition, the Working Group noted that legislation coming under
special arrangements, such as a referral of powers under section 51
(xxxvii) of the Constitution or under cooperative schemes between
the Commonwealth and the states, would require specific measures in
order to have continued application in the Northern Territory after
statehood.[132]
One prominent example of a Commonwealth legislative regime
constituted by virtue of a referral of powers is the current
corporations law scheme established by the Corporations Act
2001 and the Australian Securities and Investments
Commission Act 2001.
An alternative approach to dealing with the range of
Commonwealth legislation applying to the Northern Territory was
identified by Lionel Bowen, a former Commonwealth
Attorney-General:
it may be that all Commonwealth laws would
continue to apply after statehood, with the power of the new State
to repeal or amend such laws being dealt with in its Constitution
or by the imposition of terms and conditions.[133]
In its 2006 submission to the HRSCLCA statehood inquiry the
NTSSC expressed the view that the current Commonwealth legislative
regime that is in place by virtue of section 122 would have to
change upon a grant of Statehood, acknowledging the Commonwealth
retains a range of constitutional powers over the States .[134] The NTSSC also
stated that the Commonwealth should take into account any Northern
Territory views regarding any lesser amendments that might be
required.[135]
Statehood has been identified as a goal for the Northern
Territory since at least the 1950s but has yet to be achieved.
Despite this, the latest statehood campaign and the planned second
referendum (to be held possibly in July 2008) indicate that the
statehood aspiration is still very much alive in the Territory.
The constitutional issues outlined in this paper are complex and
are fundamental to the question of bringing a new state into
existence within the Australian Federation. For Northern Territory
statehood, many of these issues, along with other significant and
complex matters, will require extensive negotiations between the
Commonwealth and the Territory prior to statehood becoming a
reality.
The matter of constitutional equality with the existing States,
a longstanding expectation within the Territory in relation to
statehood, has the potential to be a point of contention given the
Commonwealth s reluctance in the past to endorse constitutional
equality per se for the Northern Territory as a new state. An
additional factor is the new Rudd Commonwealth Government. While
the ALP expressed support for statehood when in Opposition, the
declared policy position of the new Government regarding the terms
and conditions of statehood remains to be seen.
[6]. Northern Territory Statehood Working Group, Final
Report, Northern Territory Statehood Working Group, 1996, p.
27,
http://www.nt.gov.au/lant/parliament/committees/
condev/ntconstitution/ntcons/finalreportworkingroup.PDF ,
accessed on 11 January 2008.