Paterson v O'Brien; Tapp v Guest

In each of these matters the plaintiff seeks by motion on notice an injunction to restrain electoral officers from "causing or continuing to cause an election to be made of" senators for the Australian Capital Territory and for the Northern Territory and members of the House of Representatives of those Territories.

In each matter a statement of claim has been filed. In the second matter, a demurrer has been filed on behalf of the defendants. The first case has proceeded on the footing that it shall be assumed that a demurrer has been filed in like terms to that filed in the second case.

An amendment was made to the statement of claim in the first case to make it clear that the plaintiff in that case was not enrolled as an elector in an electoral division in the Australian Capital Territory and to the statement of claim in the second case to make it clear that the plaintiff in that case is not enrolled as an elector on the electoral roll for the Northern Territory.

The matters were heard together by the whole Court on Monday, 28th November 1977. The plaintiff in the first matter, a barrister, appeared for himself and as counsel for the plaintiff in the second matter. At the conclusion of the argument on behalf of the plaintiffs, the Court dismissed the motions, allowed the demurrers and dismissed the actions, indicating that it would put in writing its reasons for so doing.

The basic submission of the plaintiffs was that s. 123 of the Constitution "controlled" s. 111 so that the Parliament of a State might not validly surrender a part of the State to the Commonwealth except with the approval of a majority of the electors of the State. As an alternative, it was submitted that the Commonwealth could not validly accept such a surrender unless a majority of those electors had approved of the alteration in the limits of the State which it was submitted was involved in the surrender.

Historically it is known that the surrender of the Northern Territory of South Australia to the Commonwealth was sought to be effected by an agreement of 7th December 1907 between the State of South Australia and the Commonwealth, approved and ratified by the legislature of South Australia and by the Parliament and that no referendum of the electors of South Australia was held in relation to such surrender.

It is also known historically that the area now known as the Australian Capital Territory was surrendered to the Commonwealth by the State of New South Wales by an agreement dated 18th October 1909, ratified and approved by the legislature of the State of New South Wales and by the Parliament. As in the case of South Australia, no referendum of electors of the State of New South Wales was held to approve the surrender.

Conformably to the submission of the plaintiffs as to the relationship of ss. 123 and 111, it is said by them that the Northern Territory remains part of the State of South Australia and that the Australian Capital Territory remains politically as well as geographically part of the State of New South Wales. It is therefore said that the plaintiffs are "politically" disadvantaged, presumably in that they are not enrolled in an electoral sub-division of South Australia or of New South Wales.

It might be as well if we set out in full the two sections principally involved in this submission.

Section 111, which is in Ch. V, "The States", provides:

The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

Section 123, which is in Ch. VI, "New States", provides:

The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

It seems to have been assumed by the plaintiffs in their submissions that the question upon which the electors of the surrendering State should vote is the question which is posed by s. 123. That question is whether the electors approve of the act of the Parliament which increases, diminishes or alters the limits of that State. In order to make out the impact of s. 123 on s. 111 which they assert, the plaintiffs treat the surrender by the State to the Commonwealth of a part of the State as an alteration of the limits of that State within the meaning of s. 123. They further read the Commonwealth, where first appearing in s. 111, as referring, and referring exclusively, to the Parliament. They deny that the acceptance of the surrendered territory may validly be made by the Executive of the Commonwealth, the Governor-General in Council. Taking these two steps, the plaintiffs' concluding submission is that the acceptance of the surrender of the part of a State, being by legislative act on the part of the Commonwealth, is an exercise of the legislative power granted by s. 123 and to be valid must conform to the conditions imposed by that section on its exercise.

But these submissions exhibit more ingenuity than logic and the proper construction of the Constitution will bear. Indeed, in our opinion, the whole argument for the plaintiffs stems from a failure to observe fundamental distinctions.

Section 111 and s. 123 are quite disparate, dealing with quite different matters and powers; they make no impact one on the other: s. 111 empowers the legislature of a State to surrender part of its territory to the Commonwealth. It is of a different order to the power to alter State limits given to the Parliament by s. 123. The only "condition" imposed by s. 111 on the power to surrender territory is that the surrender must be to and accepted by the Commonwealth.

So far as the Australian Capital Territory is concerned, s. 125 contemplated that such a territory, vested in the Commonwealth by surrender or acquisition, should be geographically in the State of New South Wales. Thus it was contemplated that in due course the State of New South Wales should surrender part of its territory to the Commonwealth to form a Commonwealth Territory, wherein the seat of Government of the Commonwealth would be sited. The selection of that Territory was in the initiative of the Commonwealth. Consequently, the approval of the electors of New South Wales was scarce appropriate to the constitutional scheme evinced in s. 125.

Not only, in our opinion, is the power of the State legislature under s. 111 unconditioned upon the approval of the electors of the State, but the ability of the Commonwealth to accept a surrender of State territory is unconditioned. Acceptance rests in the unconditioned discretion of the Commonwealth. Further, we are of opinion that that acceptance can be effected by an executive act of the Commonwealth. Acceptance within s. 111 does not have to be by an act of the Parliament. Thus no statute approving or ratifying the acceptance is necessary, though because of the terms of a particular agreement, such a statute may be passed as was in fact the case in each of the surrenders of territory with which these cases are concerned.

Thus one of the steps necessarily taken in the plaintiffs' argument, i.e. that only the Parliament could accept a surrender, is, in our opinion, fallacious. Once the fallacy is exposed, the plaintiffs are left with the proposition that the power of the Executive of the Commonwealth under s. 111 is conditioned by the power of the Parliament under s. 123. By no manner of logic or construction can this proposition, in our opinion, be made good.

But, further, even if the acceptance should be by an act of the Parliament, that act will not be an exercise of the power given to the Parliament by s. 123: it will be an exercise of the power given by s. 111. The territory surrendered will become a Territory of the Commonwealth by virtue of s. 111 and not by virtue of s. 123. The power to make laws for its government will be derived from so much of s. 122 as relates to territory surrendered by a State.

The plaintiffs based much of their argument on the conclusion that the surrender by a State of part of its territory necessarily effected an alteration in the limits of the State so that the surrender was itself an alteration of those limits. Let it be supposed, without deciding, that a surrender of territory necessarily effects an alteration of the limits of the surrendering State within the meaning of the word "limits" in s. 123, none the less the acceptance within s. 111 by the Commonwealth, even if by the Parliament, is not in our opinion an alteration by the Parliament of the limits of the State and particularly not such an alteration effected by an act of the Parliament under s. 123. Clearly, if the acceptance is by the Executive of the Commonwealth, it could not be such an alteration.

The initiative for the alteration of the limits of a State under s. 123 is with the Parliament whereas the initiative in the surrender of a part of a State is with the legislature of the State. This is true, even in relation to the territory in which the seat of Government was to be placed. The consequence in relation to the boundary of a State of a surrender of part of its territory cannot be regarded, in our opinion, as an alteration of the limits of that State by an initiative of the Parliament under s. 123. The function of accepting the surrendered territory bears no relationship to the exercise of the power given by s. 123.

Once these fundamental distinctions are observed, the claim that s. 123 "controls" s. 111 cannot be supported.

Having formed the definite view that the plaintiffs' submission should be rejected, there is no need to consider other matters which might bear on the propriety of the plaintiffs' actions. Thus, their standing to bring suit for the relief claimed need not be examined. It has been assumed, without any decision, that either plaintiff had the requisite interest to support the action before the Court.

In our opinion, both actions are misconceived. Consequently, for the reasons we have given, the motions were dismissed, the demurrers allowed and the actions dismissed.