## Facts

- The Commonwealth enacted legislation providing Senate representation for the Northern Territory and the Australian Capital Territory and adjusting territory representation in the House of Representatives.
- The legislation relied primarily on Constitution s 122, which authorizes Parliament to make laws for territories and to allow their representation in either House “to the extent and on the terms” Parliament thinks fit.
- States (Queensland and, in related proceedings heard together, Western Australia) challenged the validity of the territory-representation legislation in the High Court’s original jurisdiction.
- A closely divided earlier High Court decision had upheld territory Senate representation; after a change in Court membership, the States sought reconsideration and invalidation.
- The challenges also raised whether the Court should revisit its recent precedent, whether a State could relitigate a previously lost constitutional question, and whether parliamentary self-governance over membership barred judicial review of the legislation.

## Issues

1. Whether Constitution s 122 authorizes Parliament to provide for territorial representation in the Senate notwithstanding provisions describing the Senate as composed of senators “for each State.”
2. Whether Constitution s 122 authorizes Parliament to provide for territorial representation in the House of Representatives consistent with constitutional requirements governing the House’s composition and the House–Senate numerical relationship.
3. Whether the Court should overrule its recent decision upholding territory Senate representation merely because Court composition changed, and whether principles such as estoppel or abuse of process should bar the renewed challenge.
4. Whether questions about the composition of Parliament are nonjusticiable because each House determines its own membership.

## Decision

- By a 5–2 majority, the Court upheld the validity of the legislation providing for territorial representation in the Senate.
- By the same majority, the Court upheld the validity of the legislation providing for territorial representation in the House of Representatives.
- The Court declined to overrule its recent precedent upholding territory Senate representation.
- The Court held it had jurisdiction to determine the constitutional validity of the legislation, notwithstanding parliamentary powers over elections and qualifications.
- Dissenting, the Chief Justice and one Justice would have invalidated the legislation as inconsistent with the Constitution’s structural design for the two Houses.

## Legal Principles

- A constitutional provision expressly empowering Parliament to allow territorial representation “in either House” supports a broad legislative discretion as to the extent and terms of such representation, subject to preserving mandatory constitutional requirements for State representation.
- Territorial senators and members may be treated as an additional constitutional category created under the territories power, rather than as altering the constitutional status of State representation provisions.
- The House–Senate numerical relationship requirement (“as nearly as practicable” twice the number of senators) may include territory senators and territory members in the relevant counts, provided the overall constitutional ratio is maintained as nearly as practicable.
- The High Court may determine the constitutional validity of legislation structuring representation even though each House has powers to judge questions of elections and qualifications.
- The Court will not lightly overrule a recent constitutional precedent on a re-argument prompted chiefly by a change in judicial personnel, particularly where governmental and public reliance has followed the earlier decision; public-law constitutional challenges are not ordinarily barred by estoppel in a manner that would prevent judicial determination.

## Conclusion

The Court sustained federal legislation granting Australian territories representation in both the Senate and the House under the territories power, treated such representation as compatible with the Constitution’s structural provisions, confirmed judicial authority to review the validity of representation laws, and refused to overturn a recent precedent absent compelling justification.


Queensland v. Commonwealth (Austl.), 139 C.L.R. 585 (High Ct. Austl. 1977)