Paterson v O'Brien; Tapp v Guest [1978] HCA 2

Paterson v O'Brien; Tapp v Guest [1978] HCA 2

Section 123 of the Constitution does not condition or control the surrender of State territory to the Commonwealth under s. 111. A State Parliament may surrender territory under s. 111 without elector approval, and the Commonwealth may accept that surrender, including by executive act. The plaintiffs' challenge to the validity of the surrender of the Northern Territory and the Australian Capital Territory, and to the Territory elections, was therefore misconceived.

Jurisdiction
Australia
Procedural Posture
Actions Seeking Injunctions to Restrain Electoral Officers From Causing or Continuing to Cause Elections for Senators and Members of the House of Representatives for the Australian Capital Territory and the Northern Territory / Motions on Notice and Demurrers Heard Together by the Whole Court
Outcome
Demurrers allowed and actions dismissed with costs.
Legal Topics
['surrender of State Territory to the Commonwealth' 'commonwealth Territories' 'referendum Approval Under S. 123 of the Constitution' 'acceptance of Surrendered Territory Under S. 111 of the Constitution']
['constitutional Law' 'electoral Law'] ['surrender of State Territory to the Commonwealth' 'commonwealth Territories' 'referendum Approval Under S. 123 of the Constitution' 'acceptance of Surrendered Territory Under S. 111 of the Constitution']

Case Brief

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Procedural Posture

Actions Seeking Injunctions to Restrain Electoral Officers From Causing or Continuing to Cause Elections for Senators and Members of the House of Representatives for the Australian Capital Territory and the Northern Territory / Motions on Notice and Demurrers Heard Together by the Whole Court

Legal Issues

  1. 1 ['Whether s. 123 of the Constitution controlled s. 111 so that a State Parliament could not validly surrender part of the State to the Commonwealth without approval of a majority of electors of the State.' 'Whether the Commonwealth could validly accept a surrender of State territory without approval by a majority of the electors of the State.' 'Whether acceptance of surrendered territory under s. 111 had to be by an Act of the Parliament or could be effected by executive act.' 'Whether the Northern Territory remained part of South Australia and the Australian Capital Territory remained part of New South Wales because no referendum was held.']

Ratio Decidendi

Section 123 of the Constitution does not condition or control the surrender of State territory to the Commonwealth under s. 111. A State Parliament may surrender territory under s. 111 without elector approval, and the Commonwealth may accept that surrender, including by executive act. The plaintiffs' challenge to the validity of the surrender of the Northern Territory and the Australian Capital Territory, and to the Territory elections, was therefore misconceived.

Court Disposition

Demurrers allowed and actions dismissed with costs.

Orders

  • ['Motions dismissed.' 'Demurrers allowed.' 'Actions dismissed with costs.']