Opinion Number. 249

Subject

QUEENSLAND-PAPUA BORDER WHETHER COMMONWEALTH HAS POWER TO ALTER : MODES OF ALTERING BOUNDARIES OF COMMONWEALTH AND LIMITS OF STATES

Key Legislation

CONSTITUTION, covering cl. 8; ss. 111. 121. 123. 124. 128 : COLONIAL BOUNDARIES ACT 1895 (IMP.)

Date
Client
The Prime Minister

An Order in Council dated 19 May 1898, and made 'in exercise of the powers by the Colonial Boundaries Act, 1895, or otherwise in Her Majesty vested' provides as follows:

  1. So soon as the Colony of Queensland shall, through its Legislature, have consented to the alteration of the boundary of the Colony as herein described the boundary of Queensland to the northward shall be as follows:
  2. The boundary line shall run from a point on the existing boundary three miles S.E. from Bramble Cay by a line bearing S.550 W. (true) to a point midway between Pearce Cay and Dalrymple Island; thence by the centre of Moon Pass in Warrior Reef and by a line bearing S.88° W. (true) passing three miles S. of Turnagain and Deliverance Islands (westerly); thence W. by S. (true) to the meridian of 138° of E. longitude.

  3. The islands and reefs lying to the northward of the boundary as thus altered shall thenceforth become and be part of Her Majesty's Possession of British New Guinea.
  4. The Order in Council of 29th June, 1896, whereby the existing boundary of Queensland to the northward is described, is hereby revoked.

No Act has been passed by the Parliament of Queensland to consent to the alteration of the boundary.

The Prime Minister asks for advice as to the action necessary to carry this Order in Council into effect.

The answer to this question involves:

  1. consideration of the provisions of the Constitution, and the covering clauses of the Constitution Act, relating to the alteration of the limits of the Commonwealth and of the States;
  2. consideration of the position created, in this particular case, by the fact of the establishment of the Commonwealth having occurred since the making of the Order in Council.

(A) Constitutional provisions as to alteration of boundaries

Covering clause 8 of the Constitution Act provides that:

After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

The Colonial Boundaries Act provides that where the boundaries of a colony are altered by the Queen, by Order in Council or Letters Patent, the boundaries as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the colony. It further provides that 'the consent of a self-governing colony shall be required for the alteration of the boundaries thereof; and it defines

'self-governing colony' as 'any of the colonies specified in the schedule to this Act'. The

schedule specifies, amongst others, New South Wales, Victoria, South Australia, Queensland, Western Australia and Tasmania.

The effect of covering clause 8 of the Constitution appears to be that the Commonwealth is now a 'colony' and a 'self-governing colony' within the meaning of the Colonial Boundaries Act, and that the States are not 'colonies' or 'self-governing colonies' within the meaning of the Act.

Chapter V of the Constitution ('The States') contains the following provision:

Section 111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

Chapter VI of the Constitution ('New States') contains the following provisions:

Section 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.

Section 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.

Section 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.

Chapter VIII of the Constitution ('Alteration of the Constitution') contains the following provision:

Section 128. . . . No alteration . . . increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

It appears therefore that the Constitution Act and the Constitution make provision-

  1. for the alteration of the boundaries of the Commonwealth under the Colonial Boundaries Act-by the King in Council with the consent of the Commonwealth Parliament (covering clause 8);
  2. for the alteration of the limits of a State-
    1. by surrender of territory to and acceptance by the Commonwealth- Commonwealth and State Parliaments only (section 111);
    2. by the Commonwealth Parliament, with the consent of the State Parliament and the approval of the electors of the State voting (section 123);
    3. by separation of territory from the State to form new State or part of new State-Commonwealth and State Parliaments only (sections 121,124);
    4. by constitutional amendment-amending organization, with approval of majority of Commonwealth electors voting in the State (section 128).

To account for some of these diverse provisions, reference may be made to the historical stages of the draft Constitution. It is worthy of note that sections 123 and 128, as passed by the Convention, did not contain the words ([emphasised] where they are set out above) requiring the consent of the electors to alterations of State limits. But after the failure of the draft Constitution to poll the statutory number of votes in

N.S.W., both Houses of the N.S.W. Parliament recommended 'that better provision be made against the alteration of the boundaries of a State without its own consent- namely, by the protection afforded by clause 127 (section 128) as to the representation of States'. At the Premiers' Conference, 1899, section 128 was amended as above indicated, so as to secure that no constitutional amendment altering the limits of a State should become law without the approval of a majority of the electors of the State voting on the question; and, apparently as complementary to that provision, the words requiring the approval of the electors were inserted in section 123. The intention appears to have been to protect the States against alteration of their territory by ordinary law as well as by constitutional amendment. Section 123 already gave that protection to the extent of requiring the consent of the Parliament of the State; the effect of the amendment was further to protect the people of the State against the Parliament of the State.

From the history of these amendments, it would appear that their intention was to forbid any alteration of the limits of a State except with the consent of its electors; but this is not, in my opinion, their effect. Section 123 is in affirmative language, and provides one method of altering the limits of a State, namely on the initiative action of the Commonwealth Parliament. But section 111 is also in affirmative language, and provides another method of altering the limits of a State, in certain events and for certain purposes, on the initiative action of the Parliament of the State, without reference to the electors, but with the consent of the Commonwealth Parliament. The affirmative provisions of section 111 are independent of, and are not cut down by the affirmative provisions of section 123.

Next comes the question whether, under the Colonial Boundaries Act as amended by the Constitution Act, an alteration of the boundaries of the Commonwealth, involving the alteration of the limits of a State, could be effected by the King in Council, with the consent of the Commonwealth Parliament, without reference to the electors of the State.

In my opinion, the power of the King in Council, with the consent of the Commonwealth Parliament, to alter the limits of the Commonwealth, must be taken to cover a case-such as the proposed alteration of the boundary of Queensland-in which the alteration of the external boundary of a State is involved. As the Commonwealth is at present constituted no alteration of its limits is possible which does not alter the limits of a State-except an alteration which consists of including a new State or territory, or excluding an existing State.

Covering clause 8 cannot, in my opinion, be construed as referring solely to such extraordinary alterations.

I therefore think that the King in Council has power, with the consent of the Parliament of the Commonwealth, and without reference to the electors of Queensland, to alter the boundaries of the Commonwealth, and incidentally those of Queensland, in the way proposed.

(B) The position with respect to the Order in Council of 19 May 1898

The Order in Council, dated 19 May 1898, purports to alter the boundaries of Queensland. Since that time the Commonwealth has been established, and the Colonial Boundaries Act has ceased to apply to Queensland and has been applied to the Commonwealth.

It appears to me, under the circumstances, that the consent of the Commonwealth Parliament to that Order in Council would not be technically sufficient to alter the boundaries of the Commonwealth; and I think that the safer course would be to request the Imperial Government to revoke the Order in Council, and substitute a new Order in Council, altering the boundaries of the Commonwealth and then to obtain the approval of Parliament to the alteration.

Alternatively, the Parliament of Queensland could under section 111 surrender the territory in question to the Commonwealth, and the Commonwealth could accept the territory. Then, under the Colonial Boundaries Act, the territory could be taken out of the Commonwealth and added to Papua.

[Vol. 5, p. 281]