Western Australia v Commonwealth

High Court of Australia|1975-07-01|Before: Murphy JJ

These proceedings raise questions of the validity of three Acts passed at the joint sitting of the Australian Parliament on 6th and 7th August, 1974.

The Acts are the Senate (Representation of Territories) Act 1973, the Representation Act 1973 and the Commonwealth Electoral Act (No. 2) 1973.

The States of New South Wales, Queensland, Western Australia and, by leave, Victoria, challenged the validity of the Acts. Cases were stated under s. 18 of the Judiciary Act 1908-1973 containing three questions for the opinion of the Full Court.

The first question is whether the procedures of s. 57 of the Constitution were observed in respect of each of the Acts.

The second question is whether the Senate (Representation of Territories) Act 1973 was within the legislative power of the Parliament.

The third question raises the issue of the justiciability of the first two questions.

I will deal with the question of the validity of the Senate (Representation of Territories) Act 1973 first, and then with the procedural question under the headings of the implied limitations of time in s. 57, prorogation and the proclamation, and finally with the issue of justiciability.

This Act was affirmed by an absolute majority of the members of the Senate and House of Representatives at the joint sitting and aimed "to provide for the representation in the Senate of the Australian Capital Territory, the Jervis Bay Territory and the Northern Territory of Australia".

Each Territory shall be represented in the Senate by two senators for the Territory directly chosen by the people of the Territory voting as one electorate. Section 5 of the Act declares that a senator for a Territory has all the powers, immunities and privileges of a senator for a State. The challenge to the Act is based on the invalidity of these provisions, to which other quite important sections are ancillary.

The source of legislative power relied upon is s. 122 of the Constitution which states:

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.

The plaintiffs assert that this Act, even if formally passed through the procedures of s. 57 of the Constitution, is beyond the power conferred on the Parliament by the Constitution.

There is no dispute that the Australian Capital Territory and the Northern Territory are territories to which s. 122 applies. These two Territories have been represented by members in the House of Representatives for some time, and Parliament has acted on the view that representation in s. 122 includes full representation, that is, the territorial representatives are on equal terms with other members of the House and vote on all questions (Australian Capital Territory Representation (House of Representatives) Acts 1973 and the Northern Territory Representation Act 1922-1968.)

Section 122 clearly shows, by the words "in either House", that the constitution envisaged some representation in the Senate. The plaintiffs' challenge relates to the nature of the representation in the Senate to which the Territories are entitled under the Act. They contend that "representation" referred to in s. 122 does not include membership in the Senate or voting rights in it but at the most allows for non-voting delegates.

The plaintiffs assert that the Parliament, in providing for representation in the Senate, must do so in a way consistent with the whole Constitution, its federal character and, in particular, s. 7, which provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original State shall be maintained and that no Original States shall have less than six senators

Two main arguments were advanced on the language of s. 7. Firstly, that "composed" means that the Senate should contain "senators" and exclude all others, and that s. 122 only allows "representation" of a territory in the Senate by representatives who are not members and cannot vote. Secondly, that s. 7 was designed to protect the balance between the States and that full representation of the territories would disturb this balance.

It was also contended that, if full voting representation was given to the territories, the Parliament could by similar legislation create a limitless number of territorial representatives from Norfolk Island to the Australian Antarctic Territory, overwhelming the whole structure of the federal system and undermining the guarantees given to the States by s. 7.

The general scheme in Ch. 1 of the Constitution is a Senate of States with equal numbers of senators (s. 7) and a House of Representatives with the number of members as nearly as practicable twice the number of the senators and the number of members chosen in the states being in proportion to their population (s. 24). The symmetry of this scheme was imperfect. It was marred by the provision that at least five members of the House of Representatives shall be chosen in each original State. Thus, the number of members chosen from the States was not, and is not now, strictly proportional to their population. Therefore, though an increase in the number of senators for each original State would mean a proportionate increase in the House of Representatives, it would not necessarily result in a proportionate increase in each State.

Again it appears from s. 7 and s. 121 that the constitutional guarantee of equal representation of States in the Senate and the minimum number of six senators for each State is applicable only to original States and not to new States.

Section 122 provides another exception. The task is to arrive at its meaning. The language of s. 122 is extremely wide and the powers it confers are plenary (Buchanan v. The Commonwealth [37] ; R. v. Bernasconi [38] ; Boilermakers' Case [39] ). Its words should not be read narrowly and should be construed as enduring and applicable to changing conditions. As O'Connor J. said:

it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. (Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [40] ).

(1908) 6 C.L.R. 309, at pp. 367-368.
1. (1913) 16 C.L.R. 315.
2. (1915) 19 C.L.R. 629.
3. (1957) 95 C.L.R. 529, at p. 545.
4. (1908) 6 C.L.R. 309, at pp. 367-368.

The critical word in s. 122 is "representation". Its ordinary dictionary meaning is "the fact of representing or being represented in a legislative or deliberative assembly, especially in Parliament" (The Oxford English Dictionary). The word "representation" appears in other sections of the Constitution, and the presumption is that when identical words are used in different parts of a statute their meaning is the same. The word is used in the immediately preceding section, s. 121, which provides:

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 the Parliament, as it thinks fit. If representation in s. 121 was construed as the plaintiffs contend, then under this Constitution, Parliament would be debarred from giving a new State membership or any voting power in either House. Any construction leading to such an unreasonable result in the interpretation of s. 121 is erroneous.

"Representation" is also used in ss. 7 and 21. In these sections it clearly means representation by a member or members of the Senate. In s. 128, in "the proportionate representation of any state in either House of the Parliament", the word clearly refers to membership of the Houses.

The cognate word "representatives" is used in s. 24 and in other sections referring to the House of Representatives. Each time it clearly refers to members of the House. In s. 128 the reference to "the minimum number of representatives" of a State in the House of Representatives clearly means members.

Thus, using the Constitution as a dictionary, the word "representation" in s. 122 plainly means "membership" which accords with its ordinary meaning.

The plenary nature of the power in s. 122, including the power of the Parliament to allow representation in each House to the extent and on the terms which it thinks fit, suggests that the Parliament may allow each Territory to be represented by members; the number of members and the terms of membership are within its discretion.

The purpose of the Constitution and the fundamental constitutional doctrines which were its background must be kept in mind. It was forcefully pointed out by Isaacs J.:

it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognised at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature. (The Commonwealth v. Kreglinger & Fernau Ltd. [41] ). 1. (1926) 37 C.L.R. 393, at pp. 411-412.

The Constitution is designed for a democratic society. Except for the role of the Queen, which by convention has become largely formal, the Constitution is based on the concept of democracy. It was written against the background of the struggle, substantially fought out over the previous hundred and fifty years, for the representative form of popular democratic government. The framers of the Constitution had the benefit of the American Declaration of Independence, the French Declaration of the Rights of Man and the Citizen, and work of writers such as Hamilton, Madison and Jay in the Federalist Papers and Mill in Representative Government (1861).

The American Declaration of Independence asserted that "governments are instituted among men, deriving their just powers from the consent of the governed" and its chief complaints against the King included:

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature; a right inestimable to them and formidable to tyrants only.

The whole power of the proposed government is to be in the hands of the representative people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in a civil society.

The only government which can fully satisfy all the exigencies of the social state is one in which the whole people participate; the participation everywhere should be as great as the general degree of improvement of the community will allow; and that nothing less can be ultimately desirable than the admission of all to share in the sovereign power of the State. But as all cannot participate personally but some very minor proportions of the public business, it follows that the ideal type of perfect government must be representative. and in Ch. 7: In a really equal democracy every or any section will be represented, not disproportionately but proportionately. A majority of the electors would always have a majority of the representatives. But a minority of the electors would always have a minority of representatives. Man for man they would be as fully represented as the majority. Unless they are, there is no equal government but a government of inequality and privilege: one part of the people rule over the rest: there is a part whose fair and equal share of influence in the representation is withheld from them; contrary to all just government, but, above all, contrary to the principle of democracy, which professes equality as its very root and foundation.

Such sentiments pervaded the Constitution of the United States. This spirit of democracy was vigorously asserted in Australia, and motivated the drive towards responsible government and independence from Imperial domination. The framers of our Constitution looked to the United States Constitution. Many of the provisions of our Constitution have obviously been borrowed from the United States model.

Victoria rightly contended that expressions such as "chosen by the people" in s. 24 were directly borrowed from the United States Constitution. From this the argument ran that, as the United States Constitution only allows non-voting delegates to represent the territories in Congress, the same approach should be used in construing s. 122.

Section 122 however, is a deliberate departure from the United States model. There is little doubt that s. 122 was inserted to ensure that the privilege of membership in each House should not be denied forever to the people of the territories. This was accepted by authoritative textwriters from the earlier days.

In 1901, Quick and Garran, commenting on s. 122, drew attention to this in The Annotated Constitution of the Australian Commonwealth, p. 973.

In the United States there being no power to allow the territories to send members to Congress, the organised territories are nevertheless allowed to be represented in Congress by delegates who may speak but not vote. It would seem clear that under this Constitution the Parliament may, if it thinks fit, allow the representation of territories by delegates of the same kind, who, although allowed to sit and speak in the Senate or the House of Representatives, would not be members of either House, or entitled to vote therein. The Parliament may, however, under this section, allow a territory to be represented by actual members in either house; and in that case no terms would be imposed inconsistent with the provisions of the Constitution as to mode of election, tenure, and right to vote. The number of representatives which a territory may be allowed is of course absolutely in the discretion of the Parliament. In 1902 another acknowledged authority on the Constitution, W. Harrison Moore, wrote in The Constitution of the Commonwealth of Australia, 1st ed. (1902), p. 312: In one important respect these territories differ from the territories of the United States. In America, the territories cannot return members to Congress, though they are suffered to send delegates who may lay their views before the legislature. The Commonwealth Constitution enables the Parliament to allow the representation of such territory in either House of The Parliament, to the extent and on the terms which it thinks fit.

In 1910 in the second edition of the same work he was more emphatic:

In one respect the territories of the Commonwealth, whether within or without its limits, are more favourably placed than are the territories of the United States. In America the territories can not return members to Congress, though they are suffered to send delegates who may lay their views before the Legislature. Section 122 of the Commonwealth Constitution definitely includes in the power to make laws a power to allot representation in either House of the Parliament to the extent and on the terms which Parliament thinks fit. The statements by these learned authors are a very powerful support for the validity of the Act.

If the contention of the plaintiffs is right, and the Parliament is not empowered by s. 122 to allow representation to the territories by way of membership of the Senate, it would follow inevitably that Parliament could not under s. 122 allow representation of territories by membership of the House of Representatives. The consequence would be that the Australian Capital Territory Representation (House of Representatives) Acts 1973 and the Northern Territory Representation Act 1922-1968 would both be invalid.

The Australian Capital Territory and the Northern Territory would have no membership in either House, and Parliament could not provide for membership of any territory in either House unless the Constitution was altered. This could only be done in the mode prescribed by s. 128 of the Constitution. It could well be argued that such an alteration would not become law unless the majority of the electors voting in every State approved the proposed law (see the final paragraph of s. 128).

The permanent deprivation of representation by membership in the Senate or the House of Representatives is a serious exclusion from the democratic process. These houses are our most important political institutions, the principal organs of our democracy; their decisions are vital to every Australian. Their importance to the people of the territories is not less than their importance to the people of the States. It is contrary to the democratic theme of the Constitution that Parliament should not be able to allow representation by membership in either House to territories at the time and on the terms which the Parliament considers appropriate.

It has been argued in this case, as in a number of others, that the Constitution should not be construed in a way that gives Parliament powers it might abuse. In this case, the argument is that s. 122 must be read down to exclude altogether the power of Parliament to allow any members in either House from any of the Territories, because if it is not read down, Parliament might abuse its power by allowing absurdly large numbers of senators from these two Territories or from the small island Territories or even the Antarctic Territory.

There is no such principle of construction. It is not in accordance with the respect that should characterize the relationship between Parliament, the Executive Government, and the Judiciary. (See The Constitution of the United States of America, Analysis and Interpretation, U.S. Senate Document No. 92-82 (1973) (formerly edited by Corwin), p. 681.) The framers of the Constitution did not distrust Parliament. In section after section, they left it to Parliament to provide for, or modify the provision for, important subjects. The expression, "until the Parliament otherwise provides", is to be found in numerous sections.

It was further asserted for the plaintiffs that the Australian Capital Territory and the Northern Territory "are in a position of tutelage" (defined as meaning that they are "in a state of learning") and are not fit for the representation by membership in either House denied to them by the Constitution until they become States. Each of these Territories has a considerable and growing community, significant in comparison with at least the smaller States. Their people pay taxes to the Government of Australia. The Parliament makes laws governing their affairs. Without membership in the Houses, their situation is "taxation without representation". These Territories may never become States. There may be constitutional and other obstacles to their attaining Statehood.

The representation they have been given by this Act can only be extended by an Act of Parliament. This is a protection against abuse of the provisions.

Another protection against Parliament being "swamped" with Territorial members may be derived from the provision of s. 24 of the Constitution (see Wesberry v. Sanders [42] ).

My conclusion is that the Act is within the legislative powers of Parliament.

I turn now to the question of whether the procedures of s. 57 of the Constitution were observed in respect of each of the three Acts.

The plaintiffs contended that there is an implied limitation in s. 57 that if an opportunity for a double dissolution, justified in respect of a particular proposed law, is not acted upon promptly, the opportunity for the double dissolution lapses in respect of that proposed law. They contended that there should be read into s. 57 an adverb or adverbial clause of time such as "thereupon" or "within a reasonable time" as a condition of the exercise of the power of the Governor-General to dissolve both Houses, in order to give effect to the purpose of the section, which is to use an extraordinary mechanism to resolve deadlocks between the two Houses. They contended that the double dissolution should not be available for "stale" deadlocks.

There is no limitation on the number of proposed laws which may be passed at one joint sitting if the requirements of s. 57 have been met in respect of each proposed law. (See Cormack v. Cope [43] ).

After the second passage of each of the proposed laws by the House of Representatives, the Senate defeated a motion on each bill that it be now read a second time. The effect of this is correctly stated in Odgers, Australian Senate Practice, 4th ed. (1972), p. 253. Strictly, it was not a rejection of the bill, but was certainly a failure to pass.

Some months elapsed between the Senate's negativing of the motions for second readings and the double dissolution. In the case of the Commonwealth Electoral Bill (No. 2), the interval was nearly eight months, and in the case of others, about five months. The plaintiffs contended that, because of these intervals, the procedures of s. 57 were not observed. As there was only a failure to pass and not strictly a rejection, it is questionable whether there was any interval at all. The failure to pass continued. At the time of the double dissolution, each of the bills was still in the Senate, at the stage of having been read a first time. By appropriate procedures, each bill could have been proceeded with before the double dissolution.

The only limitations of time on the procedures of s. 57 are three expressed in the section itself. The first is the interval of three months before the second passage of the proposed law by the House of Representatives, but it is not clear exactly when this interval commences. The section has long been regarded as a difficult one, especially on this point.

The interpretation that the three months' interval dates from the first passing by the House of Representatives has been strongly held and strongly disputed over the years. The Royal Commission on the Constitution in 1929 assumed that it was to be understood in this way. The Report states at p. 9:

To overcome a deadlock between the two Houses in matters with respect to which their powers are co-ordinate, the House of Representatives may send a Bill to the Senate twice, either in the same session or in successive sessions, with an interval of three months between the two occasions, and if there is still a deadlock both Houses may be dissolved simultaneously. If the dispute continues after the election, the questions involved may be decided at a Joint Sitting. The House of Representatives cannot force a double dissolution in the last six months of its own life.

I agree with the view of Jacobs J. on measurement of the interval in the Petroleum and Minerals Authority Case [44] .

My conclusion is that it should be measured from the first passing by the House of Representatives.

The second limitation of time is that the second passing of the House of Representatives must be in the same or the next session of Parliament. Thus, one intervening prorogation does not interrupt the procedures of s. 57.

The third limitation of time is that "the dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time". Section 28 provides that every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be dissolved earlier by the Governor-General.

These three limitations of time were not exceeded in respect of any of the three Acts, and there is no justification in the text of s. 57 or the rest of the Constitution for implying any other limitation of time. The argument against doing so is strengthened by the consideration that if an issue whether a delay was unreasonable is justiciable, then the judiciary would be involved in attempting to resolve questions at the heart of the political process, far removed from the traditional exercise of judicial power.

The plaintiffs contended that if there is a prorogation after the sequence of events necessary for a double dissolution has occurred, and before the Governor-General has dissolved both Houses, the sequence leading to the double dissolution is ended and the double dissolution is not available. They contended that when the Governor-General prorogued the Parliament on 14th February 1974 he must be deemed to have made an election and declined to exercise his power to dissolve Parliament, and that he then became unable to do so in respect of the three proposed laws. They contended that the House of Representatives would have to recommence completely if it wished to pursue the s. 57 procedures, and therefore the double dissolution on 11th April 1974 was unauthorized.

The Governor-General may appoint such times for holding the session of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.

The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

Section 6 requires that there shall be a session of the Parliament at least once in every year so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

Prorogation ends a session of Parliament. It is a prelude usually to the appointment of another session and sometimes to the dissolution of the House of Representatives. The power to dissolve the House of Representatives is of course unaffected by preceding prorogation, and the suggestion that the power to dissolve both Houses is precluded by a prior prorogation is incorrect.

The history of prorogation shows that it does not interfere with the power to dissolve. Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 10th ed. (1893), p. 46, current at the time of federation, asserted that the Parliament of the United Kingdom was usually dissolved by proclamation, after having been prorogued to a certain day. The practice was followed afterwards in the United Kingdom (see May , op. cit., 18th ed. (1971), p. 255). For many years in Australia, it was the practice of the Governor-General to prorogue Parliament before dissolving the House of Representatives. Logically, a dissolution precludes a prorogation, but a prorogation does not preclude a dissolution. The same considerations apply to a double dissolution. The power to dissolve both Houses is not lost by a previous prorogation.

The only relevance of prorogation to procedures of s. 57 is that the second passing of the proposed law by the House of Representatives must occur in the same or the next session as the first passing. This means there must be no more than one prorogation between the first and the second passings. This specific reference indicates strongly that the occurrence of sessions, and therefore of prorogations, is otherwise irrelevant. It would not matter how many sessions occur after the second passing by the House of Representatives before the double dissolution. It would not matter how many sessions occur before the joint sitting in the Parliament elected after the double dissolution.

In the Petroleum and Minerals Authority Case [45] , this Court declared the Petroleum and Minerals Authority Act 1973 invalid on the grounds that failure to observe the procedures of s. 57 precluded the affirming of the proposed law at the joint sitting. The plaintiffs contended that because the proclamation convening the joint sitting referred to this Act, the proclamation, the joint sitting and all business done at the joint sitting were invalid.

The proclamation dated 30th July 1974 was in these terms:

Whereas a Proclamation made on 11th April 1974 by the Governor-General of Australia then holding office recited that the conditions upon which the Governor-General is empowered by section 57 of the Constitution to dissolve the Senate and the House of Representatives simultaneously had been fulfilled in respect of the several proposed laws intituled:

And whereas by the said Proclamation, the said Governor-General dissolved the Senate and the House of Representatives accordingly:

And whereas since that dissolution and the election of the Twenty-ninth Parliament, the conditions upon which the Governor-General is empowered by section 57 of the Constitution to convene a joint sitting of the members of the Senate and of the House of Representatives have been fulfilled in respect of each of the said proposed laws:

Now Therefore I, Sir John Robert Kerr, the Governor-General of Australia, do by this my Proclamation convene a joint sitting of the members of the Senate and of the House of Representatives, to commence in the House of Representatives Chamber at Parliament House, Canberra at 10.30 o'clock in the morning on 6 August 1974 at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives.

Section 57 authorizes the Governor-General to convene a joint sitting of the members of the Senate and the House of Representatives, and a proclamation is a convenient method of doing this. The Governor-General sent a message to each House enclosing a copy of the proclamation. The consequence of the Court's decision in the Petroleum and Minerals Authority Case [46] , that the procedures of s. 57 were not observed in respect of the Petroleum and Minerals Authority Act 1973, does not mean that each of the other proposed laws affirmed by the joint sitting are invalid. The reasons given by the Governor-General for convening the joint sitting have no more operative effect than his reasons for convening any meeting of Parliament.

The practice in both Houses in the United Kingdom, and in our House of Representatives, at the beginning of each session is to introduce a bill and read it a first time, before the opening speech containing the reasons for convening Parliament is reported. This tradition asserts their right to deliberate without reference to the immediate cause of the summons. The joint sitting was held in accordance with rules and orders made by concurrent resolutions of each House pursuant to s. 50(ii) of the Constitution. The Houses declared pursuant to s. 50(i) that any joint sitting was a proceeding in Parliament.

The proclamation in terms of s. 57 convened a joint sitting of the members " at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives". The authorization or direction to the members was not compulsory. It mistakes the nature of the Houses of Parliament to suppose that it was. They could not be required by the Governor-General to deal with each of the laws, or prevented by him from debating or voting on any other subject. And this Court could not interfere with their deliberations. (The Bill of Rights, art. 9 stated that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament (1 Wm and My Sess. 2 c. 2. See Constitution s. 49; Cormack v. Cope [47] ).

In any event, the suggestion that proceedings of Parliament may be invalid because the reasons assigned for convening the sitting included business outside the powers of the sitting is alien to the historical and existing concept of Parliament. It was proper and desirable for the proposed laws to be included in the Proclamation dissolving both Houses so that in the ensuing election the public might know the reasons for the Governor-General's decision.

It was also proper and desirable to include the proposed laws in the Proclamation convening the joint sitting so that members of both Houses and of the public might know the reasons of the Governor-General for convening the joint sitting.

The complaints about the language of the proclamations, and contentions that defects in form invalidated the joint sitting seek to apply by analogy rules applicable to lesser bodies such as are created by parliaments. Any attempt to apply them to Parliament is an exercise in the absurd.

The issues raised by the States require a determination whether the procedures of s. 57 were observed in respect of each of the three proposed laws, whether the Governor-General was authorized to grant the double dissolution of April 1974, and whether the joint sitting of August 1974 was not validly convened because of a defect in the Proclamation.

The decision whether the procedures in s. 57 for a double dissolution had been observed is a political decision, confided by the Constitution, not to the judiciary, but to the Governor-General. The decision is to be made by the Governor-General on the advice of the Executive Council (Constitution s. 62). It is a high political responsibility, to be determined on political and not judicial considerations. As Griffith C.J. stated:

the jurisdiction of the High Court, if any, is judicial and not political. So far, therefore, as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think it is not justiciable under the Constitution. (South Australia v. Victoria [48] ). 1. (1911) 12 C.L.R. 667, at pp. 674-675.

The judiciary is not equipped to investigate circumstances which traditionally and properly have been taken into account in determining whether the requirements of s. 57 have been met (see the judgment of McTiernan J. in the Petroleum and Minerals Authority Case [49] ).

The decision to dissolve both Houses means an immediate reference to the electorate. This emphasizes the political aspect of the issues. I agree generally with what was said by McTiernan J. on the justiciability of the questions arising from s. 57 in the Petroleum and Minerals Authority Case. The remarks of Griffith C.J. on sections of the Constitution almost adjacent to s. 57 and also relating to proposed laws are relevant:

Sections 53 and 54 deal with "proposed laws" - that is, Bills or projects of law still under consideration and not assented to - and they lay down rules to be observed with respect to proposed laws at that stage. Whatever obligations are imposed by these sections are directed to the Houses of Parliament whose conduct of their internal affairs is not subject to review by a Court of law. (Osborne v. The Commonwealth [50] ). 1. (1911) 12 C.L.R. 321, at p. 336.

The Constitution expressly entrusts the decision on questions arising under s. 57 to the Governor-General. The assumption of jurisdiction by the Court is an unconstitutional intrusion into his sphere. It means that a political decision, made in the exercise of non-judicial power and on non-judicial considerations, is subjected to review by this Court in the purported exercise of judicial power and on that evidence only which is admissible in a court.

However, as a majority of the Court has held that such an issue is justiciable (see Petroleum and Minerals Authority Case [51] ), I have dealt with the issues as if they were justiciable.

Apart from the s. 57 issues, a declaration is sought that the Senate (Representation of Territories) Act 1973 is beyond the powers of the Parliament and invalid. Australia by its demurrer signified its intention to argue that the plaintiff had no standing to seek that relief. This argument was not put at the hearing, unless it is not distinguishable from the argument on justiciability.

In my opinion, the issue is justiciable and there is no reason to doubt that a state has standing to seek the relief.

The answers to the questions should be that each of the Acts was duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution, but that the question is not justiciable; the Senate (Representation of Territories) Act 1973 is within the legislative powers of the Parliament, and that this question is justiciable.

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Western Australia v Commonwealth [1975] HCA 46

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