ed, presumably on the basis of Sections 52(i) and 122 of the Constitution which give the Parliament power to make laws for the "seat of government" and Capital Territory and "allow the representation of such territory in either House of Parliament to the extent and on the terms which it thinks fit." (However, there has been some disagreement on the force of Section 122, to which reference is made in considering Senate representation for the ACT- and the Northern Territory)

REPRESENTATION IN THE SENATE

In 1973 legislation was presented to the federal Parliament providing for two Senators for each of the mainland territories, the Australian Capital Territory and the Northern Territory. There was considerable controversy over this legislation, one of the major reasons being that Section 7 of the Constitution states that the Senate "shall be composed of senators for each State, directly chosen by the people of the State". On this basis, and the argument that the Senate had been created as a "States' house" it was contended that territories should not be represented in the Senate. On the other hand it was argued that Section 122 overrode Section 7 and left it to the Parliament to decide. The legislation was eventually passed in extraordinary circumstances in August 1974.

The Senate (Representation of Territories) Act was then challeged in the High Court of Australia by the State governments of New South Wales, Queensland and Western Australia. They questioned whether the legislation was invalid, being beyond the legislative power of the federal Parliament as provided in Section 122 of the Constitution and contrary to the provision of Section 7.

On 10 October 1975 the full brench of the High Court ruled (by 4 to 3) that the legislation was valid. The difference between the majority and the minority centered on Section 122. The majority argued that its "terms allow the Parliament to make laws respecting the extent and terms of representation in either House of Parliament. The Senate is one such House and the language of s.7, designed to establish the Senate in the federation of the Original States, cannot override the specific language of s. 122 with its vision of a future Commonwealth" (Justice Jacobs).

Two Senators were elected for each of the territories (ACT and NT) in December 1975. However, early in 1977 in a judgement on another matter the Chief Justice expressed a view which many took to be an invitation to a further challenge to the representation of the territories in the federal Parliament-in both the Senate and the House of Representatives. The State of Queensland took up the former challenge and Western Australia the latter.

On 28 November 1977 the High Court again upheld the legislation, this time by 5 to 2. (This occurred following a national referendum in May 1977 by which a large majority had given the people of the territories the right, for the first time, to vote in future referendums). Territory Senators and Representatives were again elected at the general election in December 1977.

The Australian Capital Territory with a population of about 220,000, and the Northern Territory (about 100,000) are now represented in the Parliament by three Representatives (2 government and 1 opposition) and four Senators (2 government and 2 opposition) with full voting rights on all issues which come before the Houses.

BIOGRAPHICAL NOTES

SENATOR JOHN WILLIAM KNIGHT (Liberal-A.C.T.)

Senator for the Australian Capital Territory (A.C.T.) since 1975.

Born 20 November 1943 in Armidale, New South Wales.

Educated Armidale High School and University of New England, B.A. (Hons), M.A. (East West Centre, Hawaii) Fulbright Scholar, 1968-69. Visiting Fellow in International Relations at the Australian National University in 1975.

Former Officer of the Australian Department of Foreign Affairs, in which capacity he served in India, Fiji and Saudia Arabia.

Foreign Policy Adviser to the Leader of the Opposition, the Right Honourable B.M. Snedden, Q.C., from 1973 to 1975.

Elected Senator for the Australia Capital Territory December 1975; re-elected December 1977.

Presently Chairman of the Parliamentary Joint Committee on the Australian Capital Territory and member of the Senate Foreign Affairs and Defence Committee.

Elected Deputy Government Whip in the Senate, March 1978

Senator Knight has written a series of articles on regional cooperation, parliament and foreign policy and the Pacific. He has also edited a book on Australia and the Middle East.

Senator BAYH. Our next witness is Hon. Walter E. Washington, the Mayor of the District of Columbia.

Mayor, it is good to have you with us here this morning, sir. Senator SCOTT. Let me add a word of welcome, Mr. Mayor.

Mr. Chairman, I was thinking, before Mr. Tucker comes in, of endorsing his candidacy for the Mayor's job. Would that help you, Mayor Washington, if I might do that?

Mayor WASHINGTON. I don't know, but I would like to spear it and I'll determine whether it will be helpful or hurtful. [Laughter.] Senator BAYH. Were you also going to consult with Mr. Tucker before you took that act?

Senator SCOTT. No. I was just thinking of the Mayor.

Mayor WASHINGTON. We have been down the road together, Senator, a little bit since he was a Member of the House. We worked together very favorably.

Senator BAYH. It is good to have you.

Please proceed.

TESTIMONY OF HON. WALTER E. WASHINGTON, MAYOR OF THE DISTRICT OF COLUMBIA, ACCOMPANIED BY JUDITH ROGERS, SPECIAL ASSISTANT FOR LEGISLATION

Mayor WASHINGTON. I am very pleased to appear here this morning. I am delighted to see Senator Scott here and supporting us, as he always supports the region.

I look forward to a very fine hearing here.

I had not met the gentleman from Australia, but he made a lot of sense.

On November 9, 1967, in my first appearance before a congressional committee as the Mayor/Commissioner of the District of Columbia, I testified before this committee in support of Senate Joint Resolution 80 to amend the Constitution to provide voting representation for the District in the Congress. I stated then that while the idea of full congressional representation for the District of Columbia is by no means new, the need is far greater than ever as we move into the home rule era. As early as 1801, more than 176 years ago, a private citizen had made such a proposal but it was never formally introduced in Congress. In 1888, 90 years ago, the first congressional proposal was introduced in the 50th Congress.

In January of this year, appearing before the Constitutional Rights Subcommittee of the House Judiciary Committee for the second time as the elected Mayor of the District of Columbia, I said:

It is a simple enough proposition that is proposed by these resolutions; namely, to enable the people of the District, constituting the seat of Government of the United States, to elect two Senators and the number of Representatives in Congress to which the District would be entitled if it were a State.

It is obviously long past time to give the residents of the District of Columbia the right to have full congressional representation in the Congress. The vote by the House on March 2 is heartening. The 95th Congress appears to be an auspicious time to finish the work

on the joint resolution so that we can begin the effort to obtain ratification of the constitutional amendment by the States. I had hoped, Mr. Chairman, that would have been accomplished in our Bicentennial Year when all of the patriotism of our Nation was not only being recognized but recommitments were being made for the next 300 years. But here we are, and I certainly think the 95th can correct that.

In a sense, Senate Joint Resolution 65 would reenfranchise the residents of the Federal District which was created under acts of Congress in 1870 and 1871, that did not take away the rights of the citizens in the areas ceded by Virginia and Maryland to elect their own officials and to vote for senators and congressmen. Constance McLaughlin Green points out in her history of Washington that local citizens of the new District continued to vote in State and national elections as late as November of 1800.

There is evidence that the Founding Fathers intended it to be that way-that the loss of suffrage amounted to an oversight that was not addressed when enabling legislation was enacted more than a decade before the first government of the new city of Washington actually came into being in 1802. Mrs. Green has cited the records of the Continental Congress, suggesting that it had been taken for granted by Americans of the 1780's that permanent residents of the capital would "enjoy the privilege of trial by jury and of being governed by laws made by representatives of their own election."

James Madison in the Federalist Papers, commenting on article I, section 8, of the proposed new Constitution, apparently assumed that the new District, like Virginia and Maryland now, would be fully franchised. He stated:

The inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government, which is to exercise authority over them; as a municipal legislature for local purposes, deprived from their own suffrages will, of course, be allowed them.

It was apparently assumed, Mr. Chairman, that existing laws of the two ceding States would provide for the suffrage, as well as the other rights that were transferred. Unfortunately, things did not work out that way.

There has been a very interesting set of circumstances on the way to the forum, Mr. Chairman. It seems to have been working that way ever since 1800 with the District. And somewhere there is an oversight.

We are here to urge this committee and the Senate to right this wrong and permit us to move as full partners in this great democracy of ours. We are saying that we don't want anything that anybody else has, except we want ours. I think that sort of deals with the question of whether other people are hurt. I think that by right of birth in this Nation in other jurisdictions they come to have representation. We would not want to take anything away from another State; but we would like to be coequal in all realms with it. I believe that the time is here, in the 95th Congress, for us to address that.

I do not believe it is difficult to justify representation in the Congress for the citizens of Washington. Our basic democratic system provides such justification. The Congress not only has an

impact on national affairs, but it has a special substantive and direct responsibility for the District's affairs. Ordinary fairness, it would seem to me, and basic principles of American democracy require that the citizens of the District have a voice in Congress equal to that of individual citizens across the Nation.

Residents of the District have carried out their responsibilities as citizens. They pay Federal and local taxes; they fight and die in our country's wars; they live under laws enacted for them by Congress. As recently pointed out by Senator Eagleton, his position was influenced upon receiving a letter from a District resident whose son was killed in the Vietnam War, a war whose policy was determined without her voice or vote. When our local residents perform these acts of citizenship, they asked no questions. They go to the wars; they pay their taxes; they fight for their country. They do not ask anything more than what any other citizen has by right. They are, indeed, entitled, in my view, to full rights-the rights enjoyed by all other citizens in this Nation. In my statement in 1967, I quoted President Johnson who forthrightly observed with respect to District citizens in a special message to Congress:

They are asked to assume the responsibilities of citizenship while denied one of its basic rights. No major capital in the free world is in a comparable condition of disenfranchisement.

President Carter has also endorsed full voting representation for .the District.

There are other factors that fully support the measure before this subcommittee. Today there are 708,000 people in the District. I might say that the figure that has been alluded to-609,000-is from the Bureau of the Census, which left out in its count 15,000 people in District institutions; so the figure is actually over 700,000 residents. But that's not unusual for us, Mr. Chairman, to be left out, as I pointed out. The District is larger than seven of the States. It is among the largest cities of the United States. Its fiscal affairs, its transportation needs, its environmental, health, and welfare requirements all dictate a need for the District to have full representation in the Congress and for the Congress to provide for such representation.

We have some great friends in the Senate, but it is not a matter of friendship. It is a matter of being in there in the ball game yourself. We have looked through the knothole so long. Now we are told: You have to wait out there. And I could always wait for you or some other friend to come out and tell us what is going on. All we want is to get in ourselves so that we don't have to ask this. What we are saying is that we would like a little of that action ourselves, to go in and know what is happening and participate and vote and do those things that every other group of citizens in any jurisdiction in this Nation has an opportunity to do.

I think that the drawbacks to alternative ways of providing the District with full congressional representation have already been discussed by this committee in the testimony of the Department of Justice. I won't go into that discussion, except to say that I think statehood, as I understand it, would be an unfortunate move. I think we can achieve full representation without going that route. I would not like to see us cut out, or carve out as we once tried to do recently, a Federal enclave. The economic and social and physi

cal life of this community is so intertwined now that it would be very difficult to separate, isolate, or pull a part this city out of the rest of it. I know that there are problems in some parts of the city that no State would want. I understand that. And, of course, I am dealing with these problems every day, and I am going to continue to deal with them. But we do not look to statehood as a viable alternative.

I suppose Senator Scott would say that we could move the whole District back to Maryland. We wouldn't want to say that to Maryland. I believe that is not an alternative that we would want to consider.

I have tried in my way to summarize where we are and summarize it with some little emotion, because this is more than a substantive rights issue. It is something that is so symbolic, I think, to the whole human rights approach that the President of this Nation subscribes to. People come to me from other countries say: Look, you have human rights as a national projection that goes from your country to other places, and we fail to be able to understand why full congressional representation does not operate in the District of Columbia, the Nation's capital.

I believe, Mr. Chairman, that as I strongly support the resolution which would propose full congressional representation for the District, I also commend the committee for moving promptly after the passage of the House resolution to hold hearings and I urge that prompt action be taken so the 95th Congress can at last do what should have been done hundreds of years ago.

Thank you for this opportunity to testify. I urge you, Mr. Chairman, to move swiftly. We do not have much time. I think as a matter of dealing with the rights of people, the clock ticketh in a most peculiar way. We have come a great distance in this city in a very few years. I remember it in 1954 as a town fully segregated, where races were not together, where people lived on the other side of the tracks. We have moved away from that. This city is blossoming now as a city where racial harmony exists and where people live together and live in dignity and live with some elements of home rule and want more. This, I think, would be one of those final measures that would put the city in a far better and a far stronger posture to represent this Nation not only as the capital of this great Nation-and it is a great Nation-but the capital of the free world. We want to stand high and make this city that capital, so that people from all over the world will have hope in what we do here.

Thank you, Mr. Chairman.

Senator BAYH. Thank you, Mayor Washington, for your persuasive testimony and for your continued interest in this.

You pointed out that back in November 1967, you first testified here before this committee. I had not been chairman then nearly as long as I have now. But as I recall, I was the principal sponsor of that amendment that you testified in support of.

Mayor WASHINGTON. You were.

Senator BAYH. I think it is fair to say that we have come a long way since then. There was not really the kind of recognition throughout the country in the equity and the wisdom of this particular position. But, hopefully, this will prove, if we have a good idea