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12. New States.
New States may be admitted or established.
121. The Parliament may admit to the Commonwealth or establish new States470, and may upon such admission or establishment make or impose such terms and conditions471, including the extent of representation in either House of the Parliament, as it thinks fit.
UNITED STATES.—New States may be admitted by the Congress into this Union.—Const. Art. IV. sec. 3, sub-sec. 1. CANADA.—It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on address from the Houses of the Parliament of Canada to admit Rupert's Land and the North Western Territory, or either of them, into the Union, on such terms and conditions in each case as are in the addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.—B.N.A. Act, 1867, sec. 146.HISTORICAL NOTE.—Chap. VI. of the Commonwealth Bill of 1891 contained the following clauses:—
(1.) “Any of the existing Colonies of [here name the existing colonies which have not adopted the Constitution] may upon adopting this Constitution be admitted to the Commonwealth, and shall thereupon become and be a State of the Commonwealth.”
(2.) “The Parliament of the Commonwealth may from time to time establish and admit to the Commonwealth new States, and may upon such establishment and admission make and impose such conditions, as to the extent of representation in either House of the Parliament or otherwise, as it thinks fit.”
This would have entitled any of the existing Australian colonies to be admitted to the Commonwealth at any time, upon equal terms with the Original States, whereas other new States could only be admitted by the Parliament of the Commonwealth, on such terms as it thought fit to impose. In Committee, Colonel W. Collard Smith suggested that existing colonies which did not come in at first should only be permitted to come in afterwards on such terms as the Parliament might determine. Sir Samuel Griffith thought it better to leave the clause as it was, and no amendment was moved. (Conv. Deb., Syd. [1891], p. 883.)
At the Adelaide session both these clauses were included in the first draft. In Committee, however, it was pointed out that the provision as to existing colonies was altogether one-sided; it bound the outstanding colonies to nothing, whilst it bound the Commonwealth to admit them unconditionally at any time; and this offered an inducement to “languid” colonies to “lounge into the Federation” at their own convenience. It was suggested that either the Commonwealth should be empowered to impose terms, or that at least the consent of the Commonwealth should be required to the admission of a new State. On the other hand, it was argued that the clause as it stood would smooth the way for existing colonies, which might not be ready to join at present; and that to impose terms and conditions might discourage them. Eventually the first clause was struck out, and the second clause was amended to read as follows:—
“The Parliament may from time to time admit to the Commonwealth any of the existing colonies of [here name the colonies which have not adopted the Constitution] and
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may from time to time establish new States, and may upon such admission or establishment impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.” (Conv. Deb., Adel., pp. 1007–12.)
During the statutory adjournment, various suggestions were made by the Legislatures. Both Houses in Western Australia and Tasmania suggested the restoration of the right of the existing colonies to claim admission at any time unconditionally. The Legislative Assembly of South Australia wished the representation of all new States to be unconditional; and both Houses in New South Wales suggested the omission of the power to impose terms and conditions—a suggestion which must be read with their request for proportional representation in the Senate. At the Melbourne session these various amendments were negatived. There was some debate on the words “admit” and “establish.” (Conv. Deb., Melb., pp. 694–8.) Before the first report the clause was recast, and after the fourth report the words “from time to time” were omitted.
§ 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.
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(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.)
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§ 471. “Terms and Conditions.”
Under the Constitution of the Commonwealth the Federal Parliament has a free hand in deciding the terms and conditions under which a new member may be admitted into the Federal family system. It will be at liberty to impose such stipulations as it thinks fit, unhampered by considerations of equality of Original States. Among the terms and conditions which may be imposed on such new States, the following may be suggested, viz., that such new States shall, before their admission, contain a population duly organized and of a certain numerical strength; that they shall have a Constitution suitable for State Government; that such Constitution shall contain a reasonable rule of suffrage; that such Constitution should contain no provision contrary to the recognized usages and policy of the other States. When Missouri applied for admission as a State in the American Union, she was received on condition that the Constitution should never be construed to authorize the passage of an act by which any of the citizens of other States should be excluded from the enjoyment of any of the privileges and immunities to which they were entitled under the Constitution of the United States. (Benton's Thirty Year's View, ch. 2.) The State of Michigan was admitted to the Union on the condition that she should surrender to the State of Ohio certain territory which had been the subject of dispute between them, and her assent was required to be given by a Convention of delegates chosen by the people for the purpose. (Campbell's Hist. Mich. ch. 14.) The State of Arkansas was admitted on the condition that its Constitution should never deprive any citizen or class of citizens of the right to vote who were entitled to vote by the Constitution at the time that instrument was presented for the approval of Congress. (Cooley's Const. Law, p. 192–4.)
The Constitution of the Commonwealth expressly authorizes the Federal Parliament to determine the extent of representation in either House to which new States shall be entitled. It is to be noted that the rule of equal representation in the Senate is only mandatory in the case of Original States; new States cannot demand parity of senatorial representation as a right; the Federal Parliament may assign to such States the number of senators which it thinks fit. In the House of Representatives the constitutional rule is, that the number of members chosen in the several States must be in proportion to the respective numbers of their people as determined by the quota (sec. 24). Notwithstanding that section each Original State is entitled to a minimum number of five representatives. No minimum number of representatives is prescribed in the Constitution for new States; and it would seem that even the principle of proportional representation in the House of Representatives, though expressed without qualification in sec. 24, might under this section be varied in the case of new States. The Federal Parliament would, clearly, under the power conferred by sec. 121, be able to fix the minimum number of senators, as well as the minimum number of representatives, to be assigned to the new States. The mode of establishing new States is prescribed by secs. 123 and 124.
That part of the compact admitting Alabama as a State respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new State whether they consented to be bound or not. (Pollard v. Hagan, 3 How. 212; Baker, Annot. Const. p. 164.)
The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively; and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. (Pollard v. Hagan, 3 How. 212; Withers v. Buckley, 20 How. 92; McCready v. Virginia, 94 U.S. 391; Bridge Co. v. United States, 105 U.S. 491. Id.)
Prior laws of Congress in relation to the Territories and their government have no force in the new State after its admission and adoption of a Constitution, unless they are adopted by the State Constitution. (Permoli v. First Municipality, 3 How. 589. Id.)
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Government of territories.
122. The Parliament may make laws for the government of any territory472 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 territory473 in either House of the Parliament to the extent and on the terms which it thinks fit.
UNITED STATES.—The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and nothing in this Constitution shall be construed to prejudice any claims of the United States, or of any particular State.—Const, Art. IV., sec. 3, sub-s. 2.HISTORICAL NOTE.—Clause 3, Chap. VI. of the Commonwealth Bill of 1891 was as follows:—
“The Parliament may make such laws as it thinks fit for the provisional administration and government of any territory surrendered by any State to and accepted by the Commonwealth, or any territory in the Pacific placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may in any such case allow the representation of such territory in either House of the Parliament to such extent and on such terms as it thinks fit.”
At the Adelaide session, 1897, the clause was introduced in substantially the same form, with the omission of the words “in the Pacific.” In Committee, Sir Edward Braddon moved an amendment that the representation allowed by the Parliament should be “in accordance with the ratio of representation provided in the Constitution.” This was negatived. Mr. Wise moved an addition to the effect that no federal territory should be leased for a longer term than fifty years, or alienated in fee simple, except on payment of a perpetual rent, subject to periodic appraisement on the unimproved value. This was negatived by 21 votes to 13. (Conv. Deb., Adel., pp. 1012–9.) At the Melbourne session, the word “provisional” was omitted at Mr. Barton's suggestion, as being an undue limitation. An amendment suggested by the Legislative Assembly of South Australia, and another moved by Mr. Glynn, similar to that moved by Mr. Wise at Adelaide, were negatived. (Conv. Deb., Melb., pp. 698–9.) Drafting amendments were made after the fourth report.
§ 472. “The Government of Any Territory.”
The Parliament may make laws for the government of Federal territory. Federal territory is country within the jurisdiction of the Commonwealth and not forming part of a State. Such territory may be acquired by the Commonwealth in the following ways:—
(1.) It may be surrendered by a State and accepted by the Commonwealth.
(2.) It may be placed by the Queen under the authority of and accepted by the Commonwealth.
(3.) It may be otherwise acquired by the Commonwealth.
TERRITORY SURRENDERED.—By sec. 111, a State is authorized to surrender any part of the country within its constitutional limits to the Commonwealth, and the Commonwealth is authorized to accept the same.
It seems that territory may be thus surrendered and accepted, either for the general purpose of being administered as a territory by the Federal Government, or for some special purpose for which it is required by the public service of the Federal Government. (See Notes to sec. 111, supra.)
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TERRITORY PLACED BY THE QUEEN.—Any country not within the chartered limits of a State may be placed by the Queen under the control and authority of the Commonwealth. This grant of power will enable the Queen, with the concurrence of the Federal Parliament, to give effect to any approved plan for transferring the Northern Territory of South Australia, or British New Guinea, to the Commonwealth, and will enable those countries to be placed under the authority of the Commonwealth.
TERRITORIES OTHERWISE ACQUIRED.—The only other way of acquiring territory expressly mentioned in the Constitution is under sec. 125, which provides that the seat of Government shall be within territory which shall have been “granted to or acquired by the Commonwealth.” It seems, however, that territory may also be acquired by the joint operation of sec. 51—xxxi. and 52—ii.; under which the Federal Parliament is empowered to acquire property from any State for public purposes, and is given exclusive jurisdiction over “places” so acquired. (See Notes to sec. 52, supra.) The phrase “otherwise acquired” is wide enough to cover the acquisition of federal territory by every mode within the power of the Commonwealth, either under the express words of the Constitution, or by implication from its general quasi-sovereign powers—as for instance, the acquisition of territory by purchase or by cession from other colonies or countries not forming parts of the Commonwealth.
GOVERNMENT OF TERRITORY.—The Parliament is authorized to make laws for the government of territory however acquired. Such territory may be ruled by the Federal Authority, acting not merely as a local government but as a quasi-sovereign government. It may rule the territory as a dependency, providing for its local municipal government as well as for its national government, in such a manner as may seem politic, wise, and just, having regard to its own interests as well as those of the people of the territory. (American Ins. Co. v. Canter, 1 Pet. 511; National Bank v. Yankton Co., 101 U.S. 129.)
Territories may either be ruled by a Federal department charged to administer Federal laws therein, or they may be granted municipal institutions and territorial legislatures, empowered to make ordinances not inconsistent with the laws and Constitution of the Commonwealth. Should such territorial ordinances be contrary to Federal law, they may be annulled by the Federal Parliament. (Mormon Church v. United States, 136 U.S. p. 1.) In legislating for territories, the Federal Parliament will possess the combined powers of the National and of the State Governments. (American Ins. Co. v. Canter, 1 Pet. 511; Forsyth v. United States, 9 How. 571.) The territories bear much the same relation to the general government that counties do to the State, and the Federal Parliament may legislate for them as States do for their respective municipal subdivisions. (National Bank v. Yankton County, 101 U.S. 129. Baker, Annot. Const. p. 162.)
TERRITORIAL LEGISLATION.—A clause in the organic act of the territory of Oregon provided that the legislative power of the territory should “extend to all rightful subjects of legislation not inconsistent with the Constitution of the United States.” Held that, under the power so conferred, the territorial legislature had power to enact a law annulling the marriage of one of its citizens, even though the wife from whom he was so divorced had never resided within the territory. (Maynard v. Hill, 125 U.S. 190. Baker, Annot. Const. p. 167.)
Under the powers of the Federal legislature reserved in the organic acts of the territories to annul the acts of their legislatures, the absence of Federal action annulling a law that is in conflict with the organic act cannot be construed as recognition that such law is valid. (Clayton v. Utah, 132 U.S. 632. Id.)
The Federal legislature can grant to a corporation existing under the laws of a State, the right to construct a railroad within any of the territories of the Union, and the State afterwards created out of the territory could not put any impediment on the enjoyment of the right thus conferred except upon the same terms that it could do when applied to its own previously granted right. In such matters the State only succeeds to the Federal authority over the territory. (Van Wyck v. Knevals, 106 U.S. 360; Railroad Co. v. Baldwin, 103 U.S. 426. Id. 166.)
The Federal legislature may not only abrogate laws of the territorial legislatures, but may itself legislate directly for the local government. In other words, it has full
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and complete legislative authority over the people of the territories and all departments of the territorial governments. It may do for territories what the people under the Constitution of the Union may do for the States. (National Bank v Yankton County, 101 U.S. 129; cited and approved in Mormon Church v. United States, 136 U.S. 1–43. Id. 165.)
The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. The Federal legislature may prescribe the qualification of voters within a territory, and may exclude from such privilege persons guilty of bigamy. (Murphy v. Ramsey, 114 U.S. 15. Id.)
PREROGATIVE IN TERRITORIES.—In the case of Reg. v. Amer (42 Upp. Can. Q.B. 391), where numerous cases are cited on the prerogative of the Crown, Harrison, C.J., said: “The prerogative as to the issue of special commissions of Oyer and Terminer and General Gaol Delivery exists in all its integrity in the case of what are now known as the unorganized tracts or provisional judicial districts. The exercise of the power by the Governor-General of the Dominion, or by the Lieutenant Governor of the Provinces' is not inconsistent either with sub-sec. 27, sec. 91, or sub-sec. 14 of sec. 92 of the B.N.A. Act.” (Wheeler, C.C., p. 33.)
JUDICIAL AUTHORITY IN TERRITORIES.—The legislative and judicial authority of the Federal Government in the territories is illustrated by the Canadian case of Riel v. The Queen, 10 App. Cas. 675. By the British North America Act, 1871, the North-west Territories became part of the Dominion, which was given power to pass any law for the peace, order, and good government thereof. The Dominion Parliament passed the North-west Territory Act, 1880, which gave power to try all criminal cases to a tribunal consisting of two magistrates and a jury of six, instead of a Judge and a jury of twelve men, as in England. Louis Riel was tried by a territorial court on a charge of high treason; he was convicted and sentenced to death. Riel applied to the Privy Council for special leave to appeal against the conviction, on the ground that the court had no jurisdiction to try the case. His counsel contended that it was not competent for the Dominion Parliament, under the Act of 1871, to take away from a person charged with treason the right to be tried by a jury of twelve, whose verdict must be unanimous. The Privy Council refused leave to appeal. (See extract from the judgment, per Halsbury, L.C., quoted supra, p. 514.)
§ 473. “Representation of such Territory.”
A territory which has been surrendered to the Commonwealth by a State, or placed under the authority of the Commonwealth by the Queen, or been otherwise acquired by the Commonwealth, may be allowed representation in either house of the Federal Parliament, to the extent and on such terms as the Parliament thinks fit. The representation thus accorded is not representation as a State, but territorial representation. It may be allowed not only—as in the case of new States—“to the extent” which the Parliament thinks fit, but also “on the terms which it thinks fit.” Apparently, therefore, the Parliament may not only fix the number of representatives for a territory, but determine—at least in some degree—the mode of representation. In the United States, there being no power to allow the territories to send members to Congress, the organized territories are nevertheless allowed to be represented in Congress by delegates who may speak but not vote. It would seem clear that under this Constitution the Parliament may, if it thinks fit, allow the representation of territories by delegates of the same kind, who, although allowed to sit and speak in the Senate or the House of Representatives, would not be members of either House, or entitled to vote therein. The Parliament may, however, under this section, allow a territory to be represented by actual members in either house; and in that case no terms would be imposed inconsistent with the provisions of the Constitution as to mode of election, tenure, and right to vote. The number of representatives which a territory may be allowed is of course absolutely in the discretion of the Parliament.
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SEAT OF GOVERNMENT.—In the United States, the District of Columbia is not allowed even territorial representation. Under this Constitution, however, the power to allow the representation of territories clearly includes the territory within which the seat of Government is situated. Whether it would also include any “place” acquired by the Commonwealth for public purposes is a more doubtful matter. It is of course most unlikely that any territory—other than the seat of Government—acquired for public purposes would be extensive enough to be entitled to a member of its own; and the practical question is whether the residents in such territory would have to be disfranchised altogether, or whether they might be thrown into one of the electoral divisions of the State out of which the territory was carved. As regards Senate elections the answer must clearly be in the negative; the Senators for each State must be chosen by “the people of the State.” As regards elections for the House of Representatives the matter is not so clear. Members of that House are chosen by “the people of the Commonwealth,” which includes the people of the territories; and although the mode of apportionment provisionally prescribed by sec. 24 does not provide for the people of a territory being counted in with the people of the State out of which the territory may have been carved, yet that mode of apportionment is alterable. Sec. 29 provides that “a division shall not be formed out of parts of different States;” but there is no direct prohibition against including an area of federal territory in an adjoining electoral division. On the whole, it would seem that the residents of a federal territory which is too small to be allowed a member of its own in the House of Representatives, need not necessarily be disfranchised, but may, if the Parliament thinks fit, be included in one of the electoral divisions of “the people of the Commonwealth.”
Alteration of limits of States.
123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter474 the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.
HISTORICAL NOTE.—Clause 4, Chap. VI. of the Commonwealth Bill of 1891 was as follows:—
“The Parliament of the Commonwealth may, from time to time, with the consent of the Parliament of a State, increase, diminish, or otherwise alter the limits of a State, upon such terms and conditions as may be agreed to, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any State affected by it.”
At the Adelaide session, 1897, the clause was adopted in substantially the same words. At the Melbourne session, it was verbally altered after the fourth report.
After the failure of the Convention Bill to poll the statutory number of votes in New South Wales, both Houses of the Parliament of that colony recommended (inter alia) “that better provision should be made against the alteration of the boundaries of a State without its own consent—namely, by the protection afforded by clause 127 [sec. 128] as to the representation of States.” Accordingly at the Premiers' Conference, 1899, it was agreed to amend the clause by inserting “and the approval of the majority of the electors of the State voting upon the question.”
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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.
§ 475. “A New State May be Formed.”
Section 121 empowers the Federal Parliament to establish new States without indicating the country out of which they are to be formed or the people whom they are to include. In the Notes to sec. 122, we have indicated the probable intention of the Constitution to authorize the establishment of new States out of certain classes of Federal territories. We now come to sec. 124, which does not contain a fresh grant of
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power, but merely indicates several methods according to which the power granted by sec. 121 may be exercised. The several methods defined comprehend the creation of new States out of pre-existing States, but of course the specification of methods does not exhaust or limit the generality of sec. 121.
The first method defined is by the separation of territory from a State; the second is by the junction of two or more States; the third is by the union of two or more parts of States. The most important question, in connection with the interpretation of this section, is, what are the conditions precedent to the exercise of the power? The section itself says it can be done “only by the consent of the Parliament of the States affected.” If sec. 123 is applicable to the creation of new States out of old ones, then an additional condition precedent must be added to sec. 124, which does not appear on its face, making it read thus: “only with the consent of the Parliament of the States affected and of the majority of the electors of the States voting upon the question.” The arguments against such a view have been already presented in the Notes to sec. 123.