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.

Postscript

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.