A critical examination of Australian constitutional law relating to territories and to places acquired by the Commonwealth (including a comparison with United States Law)

  • Alvin W. L. Hopper

    Student thesis: Doctoral Thesis


    This thesis examines the constitutional position in relation to those geographical areas over which the Commonwealth has sole power. These are the Territories, and Commonwealth places (over which, however, the States may retain some vestigial power). The thesis seeks to give a comprehensive account of the constitutional law concerning these heads of power. The thesis traces the tortuous history of the case law on the Territories, with its many instances of inconsistent decisions and dicta. In the words of a High Court Judge, Sir Douglas Menzies, the cases have "not resulted in a coherent body of doctrine". The problems have been particularly acute in regard to the exercise of judicial power, and they are compounded by the silence of the Constitution on some major issues concerning the Territories, such as the relationship between the 'Territories' power and the Constitution as a whole. The thesis' main contention is that, contrary to predominant doctrine, the constitutional position of the Territories and of Commonwealth places is federal, not 'disparate'. In this connection, several tenets are advanced: first, that the Constitution must be interpreted as a whole-that is, as a single instrument; secondly, that the Territories are an integral part of Australia, and their inhabitants, while not enjoying all the constitutional benefits of State residents, are full members of the Australian community; and thirdly, that there is no constitutional distinction to be drawn between different classes of Territory-thus, despite some contrary suggestions, there is no distinction between 'internal' and 'external' Territories or between Territories acquired from the States and Territories otherwise acquired. The thesis explores the particular difficulties, notably in the judicial sphere, that arise from the relevant case law, and it critically examines the cases against the text of the Constitution, as well as against the yardstick of those tenets. With regard to the Territories, the thesis analyses the constitutional topics of executive power and self-government. It considers particular issues concerning each of the three self-governing Territories, including the special status of the Australian Capital Territory as the federal "seat of government". In addition, the thesis looks at the constitutional position in the United States concerning Territories, federal enclaves and the American seat of government (the District of Columbia). The thesis draws a comparison between the American position and the corresponding position in Australia, and it critically considers the judicial interpretation, in both countries, of the constitutional grant to the federal legislature of exclusive, or sole, power over such geographical areas. This process assists an evaluation of the Australian position. The thesis concludes that, in some respects, the Australian case law has gone seriously astray, especially in treating the 'Territories' power as more or less separate from the rest of the Constitution. This judicial approach has led to a convoluted and confusing situation. Despite a degree of amelioration as a result of some more recent cases, the corrective process is by no means complete. The courts are hampered in their development of a "coherent body of doctrine" by the random way in which cases come before them, and it is unlikely that the position can be fully retrieved solely by judicial decisions. The thesis therefore proposes various reforms, and it sets out, in an appendix, proposed amendments of the Constitution. In addition to expounding and criticising the case law on the constitutional topics under discussion, the thesis reviews and, where appropriate, cites from the relevant legal literature. The thesis considers the Australian case law as decided down to the end of 2004.
    Date of Award2005
    Original languageEnglish
    SupervisorBede HARRIS (Supervisor) & Tony Deklin (Supervisor)

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