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§ 474. “Increase, Diminish, or otherwise Alter.”

The Federal Parliament is empowered to alter the limits of a State, subject to two conditions:—(1) The consent of the Parliament of the State, and (2) the approval of the majority of the electors of the State voting upon the question. The second condition was not in the section as framed by the Convention. It was inserted on the recommendation of the Conference of Premiers pursuant to one of the joint resolutions passed by both Houses of the Parliament of New South Wales; and it is not quite clear whether it in any way affects other sections by which the limits of States may be altered. For instance, sec. 111 empowers the Parliament of a State to surrender any part of the State to the Commonwealth; secs. 121 and 124 empower the Federal Parliament to form a new State by the separation of territory from a State, or by the union of States or parts of States, with the consent of the States affected. Is the consent of the electors required in any of these cases?

It is to be noticed that the section is worded, not as a limitation of powers elsewhere conferred, but as an additional and substantive power. “The Parliament of the Commonwealth may,” subject to certain consent and approval, alter the limits of a State. It seems, therefore, to refer to a class of cases not included in any other powers of altering limits.

A limit is, strictly speaking, a boundary line; and a line cannot be “increased or diminished” except in length. But the word is also used in a secondary sense, to denote “the space or thing defined by limits.” (Webster, Internat. Dictionary.) In this sense, increasing or diminishing the limits of a State means altering the boundaries of a State so as to increase or diminish its territory.

The limits of a State could be increased by the addition of a part of another State or by the annexation of a Federal territory. The limits of a State could be diminished by taking from it country along its border, and giving it to another State or transferring it to the Commonwealth. The limits of a State could be altered without increasing or diminishing them, as for instance by a mutual rectification of boundaries, or by an equal exchange of strips of country by two adjoining States. Sec. 123 could receive a reasonable construction by confining its operation to the modification of boundaries of States by cession and acquisition, giving and taking, which are within the possible mischief intended to be guarded against. What was in the minds of those who advised and framed the amendment was to make more adequate provision to guard against the possible taking of country from one State and transferring it to another; such as for example the annexation of Riverina to Victoria.

The limits of a State are clearly diminished when its Parliament consents to a new State being formed by a separation of territory from the State (secs. 121 and 124); and also when its Parliament surrenders to the Commonwealth a part of the State along its boundary (sec. 111). On the other hand, the surrender of an internal area might be made without diminishing or altering its limits. But it can hardly be contended that section 123 operates as a restriction of, or condition on, the exercise of the independent powers conferred by sec. 111, or by secs. 121 and 124. It contains not the slightest allusion to the surrender of territory to the Commonwealth, or the establishment of new States; and it purports, not to restrict those powers, but to confer an additional power.

Even as confined to the adjustment of boundaries between States, the section embodies an extraordinary limitation on the power of the State Parliaments. Hitherto, under the Colonial Boundaries Act, 1895, the Queen has had power to alter the boundaries of any of the Australian colonies with the consent of the colony—i.e., with the consent of the Parliament of the colony. Accordingly, adjustments of boundaries between colonies could be arranged between the Parliaments of the colonies, and then effected by Order in Council. Under this section, however, the consent of the Parliaments of the two States concerned must be supported by a Referendum in each of those States. This provision is an invasion of the principle, recognized by the Convention,


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that the Constitutions of the States are not interfered with except so far as is absolutely necessary. In the case of an amendment of the Federal Constitution involving an alteration of the limits of a State, the requirement that a majority of the electors of the State should consent is appropriate enough, as the electors are the ratifying body; but this section deprives the State Parliaments, without apparent justification, of an existing legislative power.

Formation of new States.

124. A new State may be formed475 by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

UNITED STATES.—But no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.—Const., Art. IV., sec. 3, sub-s. 1.

HISTORICAL NOTE.—Clause 5, Chap. VI., of the Commonwealth Bill of 1891 was as follows:—

“A new State shall not be formed by separation of territory from a State without the consent of the Parliament thereof, nor shall a State be formed by the union of two or more States or parts of States, or the limits of a State be altered, without the consent of the Parliament or Parliaments of the State or States affected.”

At the Adelaide session, this clause was adopted verbatim.

At the Melbourne session, Mr. Walker suggested that to meet the case of Northern and Central Queensland, the power which the Queen then had to subdivide that colony should be reserved (see Imperial Acts 5 and 6 Vic. c. 76, sec. 51; 13 and 14 Vic c. 59, sec. 32; 18 and 19 Vic. c. 54, sec. 7; 24 and 25 Vic. c. 44, sec. 2). (Melb. Conv. Deb., pp. 669–70.) At a later stage, Mr. Walker moved the insertion of the following new clause:—

“If the colony of Queensland adopts this Constitution, or is admitted as a State of the Commonwealth, nothing in this Constitution shall be taken to impair any right which the Queen may be graciously pleased to exercise by virtue of Her Majesty's royal Prerogative, or under any statute, in respect of the division of Queensland into two or more colonies; but so that the Commonwealth shall retain the powers conferred on it by this Constitution to impose terms and conditions in respect of the establishment of any such colony as a State.”

It was feared, however, that in the eyes of a large section of the inhabitants of Queensland this clause would be unwelcome, and at Mr. Barton's suggestion Mr. Walker withdrew the clause in order that the Queensland Government might be consulted. This was done, with the result that the Premier of Queensland telegraphed to the effect that the proposed clause would be likely to injure the prospects of Federation in Queensland; though the Presidents of the Northern and Central Separation Leagues telegraphed their support. The proposed new clause was negatived. (Conv. Deb., Melb., pp. 1690–1702, 2398–2400.) The clause was recast before the first report, and a verbal alteration was made after the fourth report.

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