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19. Chapter XIX. New States and Territories.

THE Commonwealth of Australia starts on its career in circumstances different from those of the United States or of the Dominion of Canada, in that its territory is coterminous with the territory of the States, and that the partition of the Continent amongst the members of the Union leaves no part of it outside the federal system. Some of the colonies, however, are of unwieldy size and possess a vast unsettled territory, and it has been seen, in the History of Federation, that the re-adjustment of territory has been mooted from time to time. Thus, with eyes on Western Australia and South Australia, it has been suggested, that such colonies should consent to a partition, which would place their unsettled and distant territory in the hands of a central government for the benefit of all Australia. Again, in the Colony of Queensland, separate and conflicting interests have been developed, and have produced political conditions, which are believed to require a division of that Colony into two or three Colonies. The re-adjustment of the boundaries of New South Wales and Victoria so as to include the Riverina in the latter colony, the erection of a new Riverina colony, and the claims of aggrieved areas for separation from an unsympathetic capital, are among the political murmurings. In a country as yet so sparsely settled as Australia, it is improbable that the present political divisions are final.

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In these circumstances, there must be provision for the surrender of territories to the Commonwealth, the readjustment of existing States, and the erection of new States, either by union or sub-division of existing States, or by establishment out of territories which have been surrendered to the Commonwealth.

But, as it is a fundamental principle of the union that the “territories of the several existing colonies shall remain intact,” it is made clear that no State is to be deprived of its territory for any of these purposes without its consent. Two other matters must be remembered. There were two colonies—Queensland and Western Australia—whose present acceptance of federation was uncertain, and one— New Zealand—which had for years dissociated itself from the federal movement. It was considered, that the doubtful colonies would be more likely to come in at the outset, if they ran the risk of getting less favourable terms by delay. Accordingly, the Act, unlike the Constitution of 1891, and despite the protests of New Zealand at the London Conference, distinguishes between Original States and Colonies which may be subsequently admitted (section vi.). Finally, it was recognized that the Commonwealth might, like some of the colonies, have dependencies, and that it might be entrusted by the Crown with the government of dependent communities not included within the territorial limits of Australia, Tasmania, or New Zealand.

These are the conditions for which provision is made in chapter vi., somewhat misleadingly headed “New States.”

Section 122 deals with what the marginal note calls the “Government of territories,” a term which is used, as in the Constitution of the United States, to describe territory and territorial communities, not forming part of any State, but subject to the general government.

In the United States, the term “Territory” has also connoted that the community in question was in a state of political pupilage, and that in due course it would come to maturity and be received as a State. Accordingly, it has been customary to regard the seat of Government—the

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District of Columbia—as not included among the “territories,” and some difficulty has been felt as to the status of the islands acquired by the United States from Spain, islands whose condition hardly promises that they will within any reasonable time become States.note

The Act by section vi. recognizes the term “Territories” as describing a political status, and the Constitution indicates the manner in which a territory may be constituted. By section 111, the Parliament of a State may surrender any part of the State to the Commonwealth, and, upon acceptance, such part of the State becomes subject to the exclusive jurisdiction of the Commonwealth. The Crown may place under the authority of the Commonwealth any colony or dependency outside the Commonwealth. For the government of these, the Parliament may make provision by section 122. In one important respect these territories differ from the territories of the United States. In America, the territories cannot return members to Congress, though they are suffered to send delegates who may lay their views before the legislature. The Commonwealth Constitution enables the Parliament to allow the representation of such territory in either House of The Parliament, to the extent and on the terms which it thinks fit. There is another class of territory within the terms of section 122—territory “otherwise acquired” by the Commonwealth. It is not improbable that this had some reference to the power over “treaties,” which was in the earlier draft of the Constitution. But, as it stands, it appears to refer to the seat of Government and all places acquired by the Commonwealth for public purposes, which, under section 52, are under the exclusive jurisdiction of the Commonwealth, and therefore probably no longer part of any State, so that their inhabitants enjoy political privileges as citizens thereof.

So far as the government of the territories is concerned,

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the division of power between Federal and State government of course does not exist; any institutions, which may be set up there, are the creation of The Parliament, in whom lies the power of regulation and control. To them are inapplicable the rights and duties cast upon States, hence they stand, in the main, outside the provisions of the Constitution—“the Constitution was made for the States, not the territories,” is true in the Commonwealth to the same extent as in the United States. Thus, suits between a resident in a State and a resident in a territory are not within federal jurisdiction, and section 117 does not protect residents in a territory against disabilities or discriminations in the States.

Of residents in the territories of the United States it is said, that “the securities for personal liberty which are incorporated in the Constitution were intended as limitations of power over any and all persons within the jurisdiction of the United States.” But, as has been mentioned before, such securities are not to be found in the Commonwealth Constitution. Section 116, however, is an exception, and may fetter the power of The Parliament, wherever that power is intended to operate. But the suggested limitation in favour of personal liberty, even in the United States, rests merely upon dicta.note

New States.

By section 121 the Parliament may admit to the Commonwealth or establish New States. “Admit to the Commonwealth” obviously relates to communities without the Commonwealth, over which the Parliament has no power, viz. Colonies such as New Zealand or Fiji. In this class of case, the power of admission is, of course, subject to the agreement of the community admitted, as signified by the authority competent to act therefor. “To establish New States” relates to communities within the Commonwealth,

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e.g. the territories, which it may be determined to raise to the dignity of States (section 6 of the Act). It is probable that The Parliament cannot convert the seat of government, or places acquired for public purposes, into a State. The power to convert a Territory into a State, or to establish a State in a Territory, may be exercised by The Parliament without the concurrence of any other authority.

By section 124, The Parliament may form a new State by separation of territory from any State of the Commonwealth, but only with the consent of the Parliament thereof; or may form a new State by the union of two or more States or parts of States, but only with the consent of the Parliaments of the State affected.

In admitting or establishing new States, The Parliament may make and impose such terms and conditions, including the extent of representation in either House of The Parliament, as it thinks fit (section 121). Except so far as otherwise agreed or determined, upon such admission or establishment, the Constitution will apply to such new State.

Alteration of the Limits of States.

It has been seen, that the preservation of the territory of the federating Colonies was a primary condition of the union, and intercolonial suspicion led to this security being sought in very remarkable terms.

Section 123 confers power upon The Parliament to increase, diminish, or otherwise alter the limits of a State; but requires, that, for such alteration, as well as for the arrangements incident thereto, the consent shall be obtained not merely of the ordinary authority therein—the Parliament of the State—but of the electors of the State. The result is very curious. The State Parliament may, without any consent of Electors, diminish its territory; for it is expressly authorized by section 111 to surrender any part of the State to the Commonwealth. The Commonwealth Parliament may immediately transfer the territory so surrendered to another State; but, in order to make the transfer good, the Electors, as well as the Parliament of the

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State receiving the accession of territory, must assent to the “increase” of “its limits.” Again, by section 124, a State, without any approval of Electors, may be cut asunder and made into two or more States, or may lose its separate existence altogether by union with another State—in either case, no more than the concurrence of the State Parliament and the Commonwealth Parliament is required.

It may be doubted, whether the powers referred to exclude all other modes of dealing with the boundaries of the States. The Colonial Boundaries Act, 1895, is not applicable to the States (section viii. of the Act). But there are several other statutory provisions affecting the boundaries of the Australian Colonies, and it is by no means clear, that they all merge in, and are extinguished by, the provisions of the Commonwealth Constitution.note Thus, it may still be competent for the legislature of New South Wales and Victoria, by laws passed in concurrence with each other, to define in any manner different from that contained in 18 and 19 Victoria, c. 54, the boundary line of the two colonies along the course of the river Murray. Again, by the 24 and 25 Victoria, c. 44 § 5, the Governors of contiguous colonies on the Australian continent may, with the advice of their Executive Councils, determine or alter the common boundaries of such colonies, and, on the proclamation of the Crown, such boundaries as altered shall become the true boundaries of the colonies; and, by section 6, provision is made for appointing the public debt, and making other necessary arrangements on the rectification. And, while it may be assumed, that the various provisions, enabling the Crown to establish new colonies in Australia by separation from existing colonies, are either spent or repealed by implication, it does not appear certain, that the power of the Crown to annex portions of one colony to another (as under the Western Australian Constitution Act, 1890, section 6) is consumed and extinguished by the Constitution.