§ 470. “New States.”

Two classes of States are distinctly recognized by the Constitution, (1) Original States and (2) new States. Original States mean such States as are parts of the Commonwealth at its establishment. New States are those which are subsequently admitted or established.

The colonies which were qualified to join the Commonwealth as original States (see clause 6) were seven in number: New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia. When the Constitution was framed by the Convention it was of course uncertain how many of these colonies would embrace the opportunity of becoming Original States, and how many might afterwards seek admission as New States. In the actual event, every one of them except New Zealand has become an Original State; so that New Zealand is the only one of the seven colonies to which this section can now apply; though other new States may be admitted or established in ways which we now proceed to discuss.

MODES OF CREATING NEW STATES.—This section contemplates two methods by which new States may be created and organized as autonomous parts of the Commonwealth—(1) by admission, (2) by establishment. The section does not specify the mode or conditions according to which new States may be admitted or established, or out of what country, or territory, or groups of population, new States are to be either admitted or established. This information may, however, be gathered partly by implication and partly from the express provisions of other sections of the Constitution.

(1.) The admission of new States can only refer to the entry into the Commonwealth of political communities which, prior to their entry, were duly constituted colonies, such as:—

  • (a) Colonies commonly known as Australasian colonies existing at the establishment of the Commonwealth, but not then joining it; of which, in the actual event, New Zealand is the only example.
  • (b) Colonies erected or to be erected in other dominions of the Crown; for example, New Guinea and Fiji.
  • (c) Colonies erected after the establishment of the Commonwealth by the division of other colonies.

This view is supported by clause 6 (Definition), which declares that “States” shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted or established. These colonies, when admitted, will be transformed into States, and, like original States, become parts of the Commonwealth.

  ― 969 ―

(2.) The establishment of new States evidently includes the formation of States either out of Federal territory, or out of States already in existence, by sub-division or otherwise. Beyond the definition in clause 6, just cited, there is no actual affirmation that new States may be formed out of federal territory. It may be assumed, however, as unquestionable that, whilst some of the territories may permanently remain in a dependent condition subject to the dominion and exclusive jurisdiction of the Commonwealth, others, when sufficiently developed, and not required or appropriated for federal purposes, will be organized into new States having the special privileges of State Government with State representation in the Federal Parliament. In addition to the establishment of new States out of federal territory, they may also be formed out of pre-existing States by the three different methods; namely, division, combination, and accretion:

  • (a) By the partition of a State and the erection of its several parts into new States:
  • (b) By the union of the whole of two or more States, so that such wholes may constitute one State:
  • (c) By the junction of contiguous parts of two or more States, so that such parts may constitute one State:

Little need be said as to the admission of States originally qualified to become parts of the Commonwealth, except that New Zealand—the only outstanding colony which was so qualified—cannot demand admission as a right; her admission depends upon the discretion of the Federal Parliament, which may subject her to terms and conditions. At the same time it is not likely that she would be accorded any differential treatment; she would probably be admitted on terms of equality with the original States, provided that her territory remained undiminished. With reference to the admission of colonies formed by the sub-division of existing colonies, or any other colonies erected after the establishment of the Commonwealth, the Federal Parliament will have to determine when the moral, political, and material conditions of the population of any such newly organized colony are sufficient to justify the belief that its people are able to exercise the power of State Government and fit to participate in Federal Government. The considerations which should influence the Federal authority in deciding when to establish a new State are thus weightily put by Dr. Burgess:—

“Congress ought not to pass its enabling act until it is clear that such a population is fully prepared to exercise the powers of local self-government and to participate in the general government. When this moment has arrived, Congress ought not to withhold its enabling act. This is a matter, however, of political ethics, not of constitutional law; and the Congress alone must judge when the proper requirements shall have been fulfilled to warrant the change from centralized to federal government in any part of the territory of the United States. I think, however, we may say that the Congress is constitutionally bound not to clothe with commercial powers any population which is unrepublican in its character—nor perhaps any population which is unnational in character. But of this character again the Congress alone must be the judge. The conclusion is that the Constitution recognizes no natural right to State powers in any population, but views these powers as a grant from the sovereign .… which latter employs the Congress to determine the moment from which the grant shall take effect.” (Burgess, Political Sci. ii. 163.)

“When the Congress discharges this function, however, the State powers, both as to local government and participation in general government, are vested in the given population by the Constitution, not by the Congress. I cannot convince myself that the Congress has the right to determine what powers the new State shall or shall not exercise, although I know that the Congress has assumed to do so in many cases. I think the Constitution determines these questions for all the States alike. Certainly a sound political science of the federal system could never countenance the possession of such a power by the Congress. Its exercise might lead to interminable confusion. In fact, its possession is inimical to the theory of the federal system. As we have seen, that system can only really obtain, where the power-distributing organ exists back of both the general government and the States.” (Id. p. 163.)

  ― 970 ―