I am asked by the Secretary, Prime Minister's Department, to advise as to the provisions of the Constitution relating to the establishment of new States.

Chapter VI of the Constitution is entitled 'New States', but only two of its four sections-sections 121 and 124-deal with new States.

Section 121 provides that: 'The Parliament may admit to the Commonwealth or establish new States . . .

Section 124 deals with the cases where the territory of the proposed new State is contained in one or more old States, and provides that:

1. a new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof; and
2. 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.

Thus the power to admit a new State is vested in the Parliament of the Commonwealth; but where the new State is carved out of the territory of one or more existing States, the consent of the Parliaments of those States is required.

Sections 123 and 124 are quite independent of each other. Section 123 contains a power to alter the limits of a State, and the exercise of that power requires the approval of the majority of the electors of the State voting upon the question.

But it seems quite clear that section 123, which does not refer to new States, cannot be read into section 124 so as to impose any limitation or condition upon the powers contained in that section.

It follows that, in order to carve a new State out of an existing State, the concurrence of the Federal Parliament and of the Parliament of the existing State is required, but not any approval at a referendum. See on this subject Quick & Garran, pp. 974-6.

[Vol. 18,p.432]