Friday, June 04, 2010

New State arguments 7 - the constitutional position

At the time the Australian Federation was formed, the existing state structure was not seen as fixed in stone for all time. For that reason, the Australian constitution includes specific provisions that allow for the admission and governance of new territories, for alteration of state boundaries, for mergers between states or parts of states and for the subdivision of existing states.

The relevant section reads:   

Chapter VI. New States.

121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

122. The Parliament may make laws for the government of any territory 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 territory in either House of the Parliament to the extent and on the terms which it thinks fit.

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 alter 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.

124. A new State may be formed 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.

Since the Federation was formed, these provisions have been used a number of times.

Within Australia, they provide the basis for the governance of the Australian Capital and Northern Territories. Both remain territories rather than states. The NT itself was a territory of South Australia at the time of Federation. In 1911, control was transferred to the Commonwealth by parallel legislation in both jurisdictions.

Externally to Australia, they provide the basis for the acquisition and administration of external territories. In 1933, for example, land in Antarctica claimed by the Empire was transferred to Australia by Imperial order and accepted by an Act of the Australian Parliament. In another example, in 1955 Australia accepted responsibility for the Cocos Keeling Islands via parallel legislation passed in the British and Australian Parliaments. 

While the territories' power has been exercised, the new states or subdivision power has not. Further, its exact meaning has not been tested. However, on the words alone, a referendum in the state or states involved is required plus parallel legislation in the jurisdictions involved.  

Given that a formal process exists for the creation of new states, the problems involved have always been political rather than constitutional. There is no present mechanism that allows for the creation of new states without the effective consent of the governing party in that state, regardless of the views of the people. Governments in power have proved very reluctant to do anything that would diminish their power. For that reason, all the new state movements over time have campaigned for constitutional change.

One of the odd things about the arguments put by those in power against subdivision is that they are a bit like the compulsive sinner who pleads with God for help to reform, but not just yet! Those arguing against specific new state proposals have often said things like there will be new states, but the times not right or this specific case doesn't make sense. It is, in fact, very hard to argue a general case that existing state structures must be fixed for all time. It doesn't make a great deal of sense.

We saw an interesting example of this a week or so back in Queensland. I quote from the Courier Mail of 27 May 2010:

NORTH Queensland should not be allowed to break off into another state, because it would cost the state on the football field, Treasurer Andrew Fraser says.

Premier Anna Bligh and her senior ministers faced a public forum today in which they were questioned on topics ranging from daylight saving to abortion.

But in a question on the perennial issue of whether north Queensland should be made a separate state, the north Queensland-born treasurer and rugby league fan was not a supporter.

Mr Fraser said the breadth and diversity of the state was its great strength.

"It allows us to beat NSW at State of Origin as well, which is worth pointing out," he said.

"... JT (Johnathan Thurston) and others all hail from the north and we'd be pretty foolish to cast that aside."

Queensland beat their NSW rivals 28-24 in the first Origin game for 2010 last night in which Thurston won man of the match.

On a serious note, Mr Fraser said Australia's state boundaries could move in the next century, as settlement patterns changed.

Here you see the usual pattern of dismissal along with the sop of possible change later.

Do the political problems involved make change impossible? The answer to that is no. No political entity can preserve itself in the long term if a significant proportion of its population demands change strongly enough.

Had New England voted yes at the 1967 plebiscite (and it was pretty close), the NSW Government would have been forced to respond. At a political level, it might have tried to temporise and delay by offering other forms of concessions and benefits.

Of itself, this is not to be sneezed at. However, the Government would also have been forced to address the next round issues, including whether a NSW referendum was required, as well as the practical issues involved in separation.

In 1967, a NSW referendum might well have failed. I am not sure that is true today for reasons I will set out in another post. However, if New England again voted yes even though NSW as a whole voted no, another set of dynamics would have been created that would have maintained the pressure for change. This would probably have led to increased devolution of power as an intermediate step. 

Significant change takes time.

The Scottish Nationalist Party was formed in 1934, although its predecessors were older. At the time, the idea of a Scottish Parliament seemed a long way a way. In 1978, the then Labour Government passed an Act providing for the establishment of a Scottish Parliament subject to a referendum. While a majority of those voting voted yes, this failed to get the required absolute proportion. In May 1997, the Blair Labour Government was elected on a platform promising another referendum. This one passed, and Scotland gained its Parliament.

In New England, the New State Movement collapsed after the 1967 result and the bitter in-fighting at the NSW election that followed. The pressure stopped to the ultimate detriment of all New England. Further, since the New England Movement as the most powerful movement had been the main national driver for the other separation movements, the whole cause declined.

Yet today the issue is clearly coming back onto the agenda in New England and elsewhere. The pressure is coming back.


In comments, Mark pointed to a very useful paper by UNE's Bryan Pape, Federalism for the Second Century, that summarises the changes that have taken place in the constitution, discusses constitutional principles and argues the case for constitutional change including especially new states.

Mark also pointed to a story in the Australian of 6 April 2010 in which Percy Allan, former head of the NSW Treasury, is quoted as arguing the case for more states. In part support, Mr Allan points to the difficulties he experienced in NSW in trying to devolve more power to the regions.   


Mark said...

There is certainly a flaw in the constitution. I read about numerous meetings with Prime Ministers etc in efforts to push change in the constitution to override some of the existing state governments reluctance for new states, New England in particular.

I read an essay last night from Mr B. Page from UNE on federalism for the new century. He quoted a few federal ministers over the years in their desire for more states for a healthier federal system. A pretty good read I thought.

Greg said...

Mark, I would be interested to read that. Can you direct me where I might find it?

Now is definitely the right time to be bringing this issue back on to the agenda with the appointment of Tony Burke as the population minister. As I understand it, he will be looking into population issues, including over crowding in the cities and decentralisation, over the next 12 months before reporting back to the government. Examination of the case for new states would seem to be a logical part of that brief.

Also check out this item from the Australian published on 6th April 2010.

Former NSW treasury secretary Percy Allan points to our overly centralised jurisdictions as a major barrier to decentralisation and regional development. He even goes so far as to suggest that the state capital be relocated from Sydney to Newcastle in order to promote the Hunter as a new "growth centre".

I don't know where Percy Allan hails from, but clearly his views are close to that of the new staters. It would be a big plus to have a former senior public official on board.

Perhaps all the planets are now coming into alignment?

Mark said...

That is a great find and a great read Greg. We need to round these people up, look at comment 35 of 40, Phil C of Newcastle. These feelings are everywhere, mention the words "new state" and "public meeting" and I'm sure that they will come out of the woodwork.

A lot of the recent articles such as the one you referred to Greg is history repeating itself. The same basic issues.

The essay I was referring to earlier is found here:

The constitution is the major impediment and pressure will need to be applied on Canberra.

Mark said...
This comment has been removed by the author.
Greg said...

Absolutely Mark. The anti Sydney, pro-separation sentiment is there and bubbling away just beneath the surface - at least in Newcastle. I wonder how we get high profile individuals such as Percy Allan on board and up front?

That comment 35 is typical though. The thought processes are not well focused in some minds. Many dissatisfied people make that comment about abolition of the states. We need to argue the case that separation and constitutional home rule is a realistic and achievable goal. Abolition of the states is not.

Will check out that essay. Cheers!

Jim Belshaw said...

Mark, thank you for finding Bryan's paper. It provides a very helpful review. Bryan was most recently famous for taking the Commonwealth to the High Court over one aspect of the stimulus package.

I saw Bryan in Armidale in March. He remains a new stater. He complained about the lack of interest in constitutional principles in recent years.

Jim Belshaw said...

I have now added the links that Mark found to the original post.

Greg said...

Here are a couple more links.

These articles advocate either shifting capitals or establishing new capitals (Newcastle and Townsville) as a means of encouraging regional development and population growth away from their respective state capital cities.

Clearly there are plenty of intelligent people thinking about these issues and coming up with similar solutions. Furthermore, it is getting some capital city media coverage.

The population debate has somewhat overtaken us in this regard. It is a topic which is of special concern in the large cities and we need to capitalise on this.

Perhaps this could be the "hook" to not only convince New England of the value of a new state but also those in the capital. It is good for both Sydney and regional NSW in that it will help ease the pressures in Sydney created by adding a city the size of Maitland each and every year.

The Sydney population will be more inclined to agree with a New England new state if they can also see benefit in it for themselves. So in that sense we perhaps should concentrate on the broader benefits rather than the narrow local grievances.

Jim Belshaw said...

Greg, we have to work both local and broader. Actually, and this is a change, Sydney needs out from NSW. It needs a Government that can focus on its interests and the immediate surrounds. Just look at the fiasco associated with the so-called brand Sydney, and the rise of Melbourne.

Greg said...

Yes that is it in a nutshell - Sydney needs out as much as we do. Then NSW can concentrate on Sydney's issues - and they also have many.

Anonymous said...

Dear Sir

Australians should look also to another federations and as they evolved from federation of few state into federation of many states. The best example is USA. How they do it? Ok appart of expanding their territory. But there are, federations who created new states without expanding their land. For example Brazil, on the same land area new states were formed as recently as in 1978, when state Tocantins was formed from northern parts of state Goais. Or state Matto Grosso split into two states Matto Grosso and Matto Grosso del Sul. One wery important things I want to mention Regions like Eyre Peninsula, where governmental neglect left the second biggest city of SA to drop population from 35,000 to 21,000 calls for that area to have their own state as remedy impact of centralism. So does the are of Far West NSW where drop of population in Broken Hill from 30,000 in 1970 to 19,000 now calls for similliar remedies. Creation of new states is strong stimuli for population growth as it shows in the new state of Tocantins in Brazil, where state capital Palmas grew from 0 to 260,000 people over period of 30 years with its own university, profesional theatre, airport, domestic and international. Imagine that!
Also India is good example where new state of Uttrakhand become 27th Indian state in year 2000 when it split from state of Uttar Pradesh. SO we have to learn what mechanisms are in place in Brazil and India and what mechanisms were in USA to allow form new states. Australia become to split in 19th century from one supper colony into five smaller colonies- it was an odd century, 20th century didn't bring any relevant changes, now we have odd century again and this is the time to create enough states to benefit Australian continent as whole. Famous historian professor Blainey said that if all Australians should enjoy benefits of federalism, Australia because of its sheer geographical size needs at least 20 states.
Yours sincerely

J Kazok

Jim Belshaw said...

Thank you very much for this comment. I wasn't properly aware of the Brazilian experience in particular. I will follow that up.