Section 122 of the Australian Constitution
Created | Updated Oct 4, 2010
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 on the terms which it thinks fit.
- Section 122, Constitution of the Commonwealth of Australia.
What Does All That Mean?
This is a section of the Australian Constitution. A Constitution is basically a set of rules designed for a country to follow, setting out what can and can't be done.
This section shows that the Federal Parliament in Australia has power over all Australia's territories. It does not matter how those territories were acquired. What are Australia's territories? Australia is divided into smaller sections known as states and territories. States and some territories have a governing body each. States are slightly more independent than territories, partly due to this section of the Constitution.
This section of the Constitution allows the Federal Parliament, also known as the Commonwealth, to legislate for any territory in Australia. This applies both to the territories that have some form of self-government, such as Northern Territory, Norfolk Island1 and Australian Capital Territory, as well as to other territories.
The full list of territories that fall under this section are:
Northern Territory (self-government)
Australian Capital Territory (self-government)
Norfolk Island (a form of self-government)
Jervis Bay Territory (linked to ACT)
Ashmore and Cartier Islands
Australian Antarctic Territory
Heard Island and McDonald Islands
Cocos (Keeling) Islands
Coral Seas Islands Territory
Nauru (became independent 1967)
Papua New Guinea (became independent 1975)
Note that not all islands are territories. Some, such as Macquarie Island and Lord Howe Island, are part of states and fall under state legislation. Papua New Guinea and Nauru are former territories of Australia that fell under this section of the Constitution, but they received independence, under the Papua New Guinea Independence Act 1975 and the Nauru Independence Act 1967.
Before self-government arrived in the Australian Capital Territory (ACT) in 1988, the Federal Parliament made all the decisions about the territory. Since self-government, the legislative assembly can make almost all decisions. Although the Federal Parliament has the power to make additional laws, they only rarely get involved. Thus the ACT (and Northern Territory which also has self-government) essentially governs itself as a state would, but with the Federal parliament having the last say.
If the Federal Parliament grants self-government to a territory, the Act of Parliament with which it does so specifies exactly what the territory will be able to make laws about, and what areas it can't make laws about. In the Australian Capital Territory (Self-Government) Act 1988, sections specify what the ACT can make laws about.
The second part of this section is about representatives from territories in Parliament. The Federal Parliament has the right to choose if there will be territory representatives in either house of Parliament. It can also choose how many. For example, in the Senate, the Northern Territory and ACT have two representatives each, whereas states have twelve. If the Federal Parliament wanted to increase each territory’s representatives to twelve, like the states, it could do so. In the same way it could remove all territory representatives from Parliament, which would of course make it very unpopular. Norfolk Island has no representatives in Parliament as it is not considered important enough2.
When is this Section Used?
Probably the most famous time the Federal Parliament exercised their powers under Section 122 was when the Northern Territory (NT) brought in laws legalising euthanasia. Euthanasia is where a patient - suffering from a usually incurable disease and in great pain - is aided by a doctor to end their life painlessly. Euthanasia is illegal in most countries, including Australia. Many people believe that it is an individual's right to 'die with dignity', but some argue that doctors are murdering patients even if the patient wants to die, and that murder and suicide are wrong.
On 22 February, 1995, the Rights of the Terminally Ill Bill was introduced in the Northern Territory Legislative Assembly by the Chief Minister of the time, Marshall Perron. The bill proposed 'medically assisted euthanasia', meaning that doctors who helped certain patients commit suicide could not be prosecuted. Of course there were various conditions that came with this bill to ensure its proper use. Some of these were that the request from the patient had to be in writing, there had to be 'cooling off' periods, the patient and doctor could pull out at any time and for safety reasons two doctors had to be involved. This bill was passed in the Northern Territory and became the Rights of the Terminally Ill Act 1995, although it was decided that the actual laws would not come into effect until 1996.
Several members of the Federal Parliament spoke about how they disagreed with the Act and were planning to introduce a bill in Federal Parliament to change it. Shortly after the first person died under the Euthanasia Act, MP Kevin Andrews introduced a bill to remove the power of the NT, ACT and Norfolk Island to make laws related to euthanasia, mercy killing or assisted suicide.
The bill passed through the House of Representatives - 91 for, 38 against - and through the Senate a few months later - 38 to 34. On 27 March, 1997 the Governor General signed the bill and it became active immediately. The self-government acts of the three territories now include an amendment banning them from making laws about euthanasia. The previous Act from the NT was revoked.
Interestingly, about a year later the Northern Territory had a referendum where they decided whether or not they should become a state. The result was 'no'. If they had voted yes, they would have been able to make laws about euthanasia, but of course they would have lost a lot of the funding they get as a territory from the Federal Government. It was generally thought that one of the major states would follow the Northern Territory's lead and introduce a euthanasia bill, which the Parliament would not be able to over-ride, but that hasn't happened.
However, various Members of Federal Parliament have stated that they are considering introducing a bill into Parliament to repeal the law made in 1997. If it is passed through the Parliament, it would return the right to the territories to make laws about euthanasia.
This section of the Constitution was written a long time before the ACT self-government Act and shortly before the Northern Territory's self-government act. The Federal Parliament does not need to govern these territories. It could therefore be said that this section is obsolete, or only relevant to territories without self-government. After all, there is very little difference between states and territories - why should territory residents be downtrodden?
This section is still used today, but that doesn't necessarily mean it's still relevant. However there is almost no chance of the section being removed.
This part of the constitution allows the Parliament to regulate Australian territories. It is important to control the territories of Australia that do not have self-government yet but can be slightly annoying to territories like the NT. It is an active part of the Constitution today.