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Territory Representation in the Commonwealth Parliament
Margaret Healy
Politics and Public Administration Group
5 September 2000
The six States federating in 1901 comprised the entire continent of Australia
and the island of Tasmania. The Northern Territory and the Australian
Capital Territory were detached from their States after federation. Their
existence and political representation was contemplated by section 122
of the Constitution, which empowers the Commonwealth to allow the representation
of any territory in either House of the Parliament 'to the extent and
on the terms which it thinks fit'.
The Northern Territory, originally part of New South Wales, was annexed
to South Australia by Letters Patent in 1863. In April 1901, because of
the heavy financial costs, South Australia offered the Northern Territory
to the new Commonwealth government. On 1 January 1911 the Northern Territory
was formally transferred to the Commonwealth under the Northern Territory
Acceptance Act 1910.
The Australian Capital Territory was created as a result of the disagreement
between the colonies of New South Wales and Victoria about which city
should become the national capital. Colonial rivalries were intense. New
South Wales would not agree to federation unless the capital was located
within its borders. Victoria stipulated that it must not be within 100
miles of Sydney. The compromise finally adopted is set out in section
125 of the Constitution, which states:
The seat of Government of the Commonwealth shall be determined by the
Parliament, and shall be within Territory which shall have been granted
to or acquired by the Commonwealth, and shall be vested in and belong
to the Commonwealth, and shall be in the State of New South Wales, and
shall be distant not less than 100 miles from Sydney.
After the site of Canberra was chosen, the Australian Capital Territory
was transferred from New South Wales to the Commonwealth on 1 January
1911 by the Seat of Government Acceptance Act 1909.
As a result of these transfers, residents of both territories lost all
political representation. They had none in the Commonwealth Parliament,
and neither was there any form of 'state' or local government. Under section
127 of the Constitution (repealed by the 1967 referendum), aboriginal
natives were not counted as people of the Commonwealth, State or part
of the Commonwealth and the Franchise Act 1902 excluded them from
voting. The white population of the Territories was very small-less
than 4000 people-and legal opinion was that it could not be included in
a State electorate. The racially based exclusions from the franchise combined
with political circumstances and geographical accident combined to deprive
Australians living in the territories of their political rights. Territory
residents additionally lacked any vote in constitutional referenda until
this was granted by a referendum in 1977. Their votes count only to the
overall majority.
House of Representatives
The Northern Territory was first granted a member of the House of Representatives
by the Northern Territory Representation Act 1922. The parliamentary
rights of the Northern Territory member were severely restricted: the
member was prohibited from voting on any question, was excluded from being
counted in any situation where numbers mattered, such as a quorum or an
absolute majority, and could not hold the office of Speaker or Chairman
of Committees. These arrangements were partly based on the model of limited
representation adopted by the USA for its territories of Hawaii and Alaska.
In 1936 the member was permitted to vote on the question of the disallowance
of any ordinance of the Northern Territory. In 1959 the voting right was
extended to any issue relating solely to the Northern Territory. Full
voting rights were finally bestowed by the Northern Territory Representation
Act 1968.
The Australian Capital Territory was granted a Member by the Australian
Capital Territory Representation Act 1948. As with the Northern Territory,
voting and other rights were circumscribed. In 1959 the ACT MP achieved
the right to vote on all issues relating solely to the ACT (the Australian
Capital Territory Representation Act 1959). With the enactment of
the Australian Capital Territory Representation Act 1966, all disabilities
were removed and full voting rights in Parliament were achieved.
The ACT gained a second seat in 1974, and a third seat at the 1996 election,
which was abolished before the 1998 election because of a fall in population.
In the 2000 redistribution the Northern Territory gained its second seat.
The number of Territory members is now determined in the same way as
for the States, according to population, the establishment of a quota,
with an additional member resulting from more than half a quota. All legislative
provisions relating to territorial representation are now contained in
the Commonwealth Electoral Act 1918. Section 48(2B) specifies that
the Australian Capital Territory and the Northern Territory shall each
have at least one MP. A by-election is held to fill any vacancy.
Senate Representation
Senate representation for the Australian Capital Territory and the Northern
Territory was enacted by the Senate (Representation of Territories)
Act 1973 as part of Whitlam ALP Government's electoral reform measures.
The bill was one of the six which formed the basis for the 1974 double
dissolution. After the re-election of the Whitlam Government a joint sitting
of the House of Representatives and the Senate was held in August 1974,
which passed all the double dissolution bills. On 10 October 1975
the High Court upheld the validity of the legislation.(1) Territory
Senators were first elected at the 1975 election. The Act was again unsuccessfully
challenged in 1977.(2)
The legislation provided that the Northern Territory and the Australian
Capital Territory should be each represented by two Senators directly
chosen by the people of each Territory voting as one electorate. These
senators have all the powers, privileges and immunities of the senators
for the States, are included in ascertaining the numbers of the Senate
necessary to constitute meetings of the Senate and for constituting a
quorum, and have a vote on all questions arising in the Senate.
The number of Senate representatives for each Territory was set at two
on the basis that the quota required for election would result in the
major parties (i.e. the Liberal/Country Party or the ALP) winning one
seat each. Thus the political composition of the Senate would not normally
be affected by the creation of Territory Senators, and neither side could
gain an advantage. The length of term was fixed to the election cycle
of the House of Representatives. Since 1975 the ACT has been represented
by one Liberal and one ALP Senator, and the Northern Territory by one
Country Liberal Party and one ALP Senator.
The Representation Act 1973, another 1974 double dissolution bill,
ensured that the basis of representation remains 'the people of the States'
only. In order to preserve the federal compact set up by the Constitution,
neither the populations of the Territories, nor the Territory Senators,
may be counted in the complex formula of section 24 of the Constitution
determining the representational entitlements of the six States in the
House of Representatives.
In 1990 the Commonwealth Electoral Act 1918 was amended
to provide for the possibility of increased Senate representation. Once
a Territory representation entitlement in the House of Representatives
reaches six seats, it would be entitled to one Senator for every two MHRs.
Casual vacancies in Territory Senate representation were originally filled
by direct election, but the procedure was subsequently changed. Any vacancy
is now filled by the Legislative Assembly of the Territory. Should the
vacancy occur while the Assembly is not sitting, it is filled temporarily
by the Chief Minister until the Assembly meets again. Vacancies must be
filled by a member of the same party, (in line with section 15 of the
Constitution dealing with casual Senate vacancies from the States).
General issues
The Northern Territory has had self-government since 1978,(3)
and the ACT since 1989.(4) In 1998 the Governments of the Northern
Territory and the Commonwealth put forward a proposal for the Territory
to become Australia's seventh State by the year 2001. The Northern Territory
voted against the proposition at a referendum held conjointly with the
1998 election on 3 October 1998.
The number of Senators any new state should have is problematical. There
is no requirement that any new state should have the same Senate numbers
as the original States: but neither is there any prohibition. Section
121 of the Constitution 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 such representation in either
House of the Parliament as it thinks fit.
Should the Northern Territory, with a population of less than 200 000,
or two thirds of that of the ACT, gain more than two Senators by virtue
of statehood, this would add substantially to the representational inequality
and distortion caused by the equal representation of the States in the
Senate. There has generally been a parity in territorial representation
and an avoidance of establishing any political advantage.
Moreover, the loss of the third ACT seat, and the addition of a second
Northern Territory seat has caused a considerable disparity between the
number of voters per seat in the two Territories, which is also the case
with enrolments in the States. The average divisional enrolments calculated
on 31 July 2000 were: New South Wales 83 836, Victoria 85 277,
Queensland 82 957, WA 83 571, SA 85 953, Tasmania 64 976,
ACT 107 876, and Northern Territory 107 111 (the quota for the
two seats is 54 989). As ACT seats now contain far more voters than seats
in the rest of Australia, ACT votes count for much less.
Hon. Bob McMullan, MP for Fraser, ACT, recently raised the possibility
of a future ALP government giving the ACT a guaranteed number of seats,
pointing out that section 24 of the Constitution guarantees Tasmania,
as an original State, a minimum of five seats in the House of Representatives.
This is the major and continued reason for disparities in enrolments.
If there were to be another instance of a guaranteed number of seats,
care would be needed to ensure a linkage to population, so as not to cause
a significant departure from principles of representational equality.
Endnotes
- Western Australia v. Commonwealth (1975) 134 CLR 201.
- Queensland v. Commonwealth, (1977) 139 CLR 585.
- Northern Territory (Self-Government) Act 1978.
- Australian Capital Territory (Self-Government) Act 1988.
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