Queensland v Commonwealth [1977] HCA 60

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. Queensland v Commonwealth [1977] HCA 60

ORDER Demurrers allowed with costs. Actions dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 28 Barwick C.J.

The second and third of these suits raises a question not in terms decided by the Court in Western Australia v. The Commonwealth [32] , namely, whether the Parliament has power under s. 122 of the Constitution to allow the representation of a Territory of the Commonwealth by persons elected by the residents of such a Territory and having full rights of membership of the House of Representatives. But it is rightly appreciated by the parties to the present proceedings that it could not be decided that the Parliament lacked that power without departing from the reasoning of the majority of the Court in that case. The first suit directly challenges the above decision. Thus, the argument of these cases involved a complete review of the reasons for judgment given by the Justices in that case.

1. (1975) 134 C.L.R. 201.

Having heard and considered that argument, and having again considered those reasons, I remain firmly of opinion that s. 122 does not give to Parliament power to alter the composition of either the Senate or the House of Representatives by intruding therein a senator or senators, or a member or members elected, not by a State, or by the people of a State, but, on the contrary, elected by the residents of a Territory of the Commonwealth.

As I earlier indicated, by no means can the definitive language of s. 7 and s. 24 be qualified by prefixing thereto the words "until the Parliament otherwise provides" or by giving s. 122 a construction which in effect does so. Certainly it cannot be done if the Constitution is read, as it should be, as a whole and as an instrument expressing a compact for a federation. Nor is there any reason, in my opinion, why those sections should be, or for that matter should have been, so qualified. The Constitution, unless altered in a constitutional manner, was intended to be permanent, just as the union of the people of the colonies "in one indissoluble Federal Commonwealth" upon the terms of the Constitution was intended to be permanent.