¹ Chief Minister of the Northern Territory (S P Hatton) Towards Statehood, Ministerial Statement, 28 August 1986.

² Unless otherwise stated, references to sections are to the sections of the Australian Constitution and those to clauses are to the “covering clauses”, ss I to 8 of the Commonwealth of Australia Constitution Act 1900 (UK).

³ New State issues have been examined and debated in many. forums — including a.number of Royal Commissions and in the lead up to a new State referendum. New South Wales Report of the Royal Commission of Inquiry into proposals for the establishment of a new state or new states, formed wholly or in part out of the present territory of the State of New South Wales (The Cohen Commission) 1925. Commonwealth of Australia Report of the Royal Commission on the Constitution (The Peden Commission) 1929. New South WalesNew States: Report of the Royal Commission of Inquiry (The Nicholas Commission)1935. A referendum held in northern New South Wales on 29 April 1967 voted against a new State proposal.

⁴ The Cohen Commission, supra n 3 recommended against new States and therefore did not have to concern itself with such matters. Section 121 was discussed briefly by the Nicholas Commission, supra n 3, 9–10.

⁵ B F Kilgariff The State of the Northern Territory unpublished paper by Senator B F Kilgariff, April 1985, p 10. These are areas in which capacity has been withheld from the present Territory Government. See G R Nicholson “The Constitutional Status of the Self-Governing Northern Territory” (1985) 59 AU 698, 706.

⁶ The very wide terms of reference of the Constitutional Commission extend to all sections of the Constitution. Constitutional Commission: Bulletin Canberra, The Constitutional Commission, No l May 1986, 4. For discussion of the recommendations in the first report of the Commission see n 162 below.

⁷ A V Dicey Introduction to the Study of the law of the Constitution (8th ed 1920) 142–3.

⁸ Infra n 12 and associated text.

⁹ The texts of the other sections in Chapter VI are as follows:

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 provisions 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.

¹⁰ As “enigmatic as a hard boiled egg” and “positively Sphinx-like in its failure to communicate” are phrases employed by Professor Colin Howard in relation to s 121. “Statehood on Conditions: Federal Representation and Residual Links”, an unpublished paper delivered at the Law Society of the Northern Territory Conference, The Northern Territory of Australia and Statehood, 2 October 1986, 34.

¹¹ As Professor Howard says, their exclusiveness is implied because “their subject matters are of a character which could not possibly be within State legislative competence unless expressly assigned thereto, which they are not.” Australian Federal Constitutional Law (3rd ed 1985) 17, text at n 95.

¹² Official Report of the National Australasian Convention Debates, 1891, 883.Official Report of the National Australasian Convention Debates 1897, 1007–1012.Official Record of the Debates of the Australasian Federal Convention 1898, 694–698. See particularly Mr (Edmund) Barton at 695 of the 1898 Debates.

¹³ “The power conferred bys 122 is a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development.” Berwick v Gray (1976) 133 CLR 603, 607per Mason J.

¹⁴ (1978) 138 CLR 276. The thrust of the decision was that the two sections were not related and any action by the Parliament of the Commonwealth under s 111 was not “an alteration by the Parliament of the limits of the State and particularly not such an alteration effected by an act of the Parliament under s 123.” See the unanimous joint judgment at 281. See also RD Lumb “Territorial Changes in the States and Territories of the Commonwealth” (1963) 37 AU 172, 173; W A Wynes Legislative, Executive and Judicial Powers in Australia (1976) 112.

¹⁵ P Durack and M H Byers Northern Territory: Establishment as a State Joint Opinion of the Attorney-General and the Solicitor-General 18 July 1978.

¹⁶ For instance, that it only encompasses the entirety of the new State being derived from the original State or that combination with a territory is excluded expressio unius by the remainder of the section — although there seems little to recommend either view.

¹⁷ Toohey J “New States and the Constitution: An Overview” a paper delivered at the Law Society of the Northern Territory Conference, The Northern Territory of Australia and Statehood, 1–3 October 1986, 7.

¹⁸ An interpretation consistent with the tenor of Quick and Garran's treatment of the clause. J Quick and RR Garran The Annotated Constitutionof the Australian Commonwealth (1901) 376.

¹⁹ Emphasis added.

²⁰ 1898 Debates, supra n 12, 694.

²¹ That is, as the context makes clear, the “existing colonies”: Ibid 694-695. This intrinsically imprecise phrase was used in the Convention debates to refer to those colonies which were likely to (some delegates would have said, had a right to) join the Federation. Essentially these were the mainland colonies and Tasmania. In the 1897-1898 Convention there was no question of New Zealand's joining but Queensland was seen as an existing colony despite its non-participation. Edmund Barton made clear that it would only enjoy this status if the State remained undivided. Had moves to create new entities in the central and northern parts proved successful all three areas would have had to have been, in the terms of cl 114, established as new States.

²² Ibid 695.

²³ Ibid 696.

²⁴ It is clear that the drafts of the Constitution Bill are permissible aids to construction.Tasmania v Commonwealth (1904) I CLR 329, 333. The rejection of any use of the Convention Debates for such a purpose, in that case and subsequently, may no longer represent the attitude of the Court:Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120, 143-144 and A Mason “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” (1986) 16 FL Rev I, 25-26.

²⁵ Quick and Garran, supra n 18, 968, attempted the first resuscitation by suggesting that “admission ... can only refer to the entry into the Commonwealth of political communities which, prior to their entry, were duly constituted colonies”. They instance New Guinea, Fiji and colonies yet to be formed. See also W H Moore The Constitution of the Commonwealth of Australia (2nd ed 1910) 593; G Sawer “The Northern Territory: Constitutional Status Present and Future” in R Herr and P Loveday (eds) Small is Beautiful: Parliament in the Northern Territory Canberra, Australasian Study of Parliament Group and the North Australia Research Unit of the Australian National University (1981) 91, 95.

²⁶ ''The Northern Territory and Statehood” (1978) 52 ALJ 554, 559.

²⁷ In the case Professor Lumb cites, that of a territory which has attained a degree of autonomy, ii is likely that ii would be made a State with its constitution and institutions substantially unaltered. That there is no constitutional imperative to do this can be seen from the fact that ii is open to the Commonwealth to impose upon it an entirely new constitution, exercising the s 122 power, prior to its being “admitted” to statehood. If Professor Lumb's distinction were meaningful then his suggestion that “establishment” is confined to s 124 entirely overlooks the situation of a territory or an area of foreign land, having no previous autonomy, that ii is desired to elevate to statehood.

²⁸ As Federal executive power probably extends to supporting a claim, unquestionable in the courts, of sovereignty over such an entity, (Diplock UPost Office v Estuary Radio [1968) 2 QB 740, 753, cited with approval inNew South Wales v Commonwealth (TheSeas and Submerged Lands case) (1975) 135 CLR 337, 388per Gibbs J; 453per Stephen J) it could first be constituted a Commonwealth territory and any constitution the Australian Government chose might be imposed on it under s 122. There is, however, no conceivable reason why this intermediate step could be required.

²⁹ Had the wording of cl 114, as presented to the 1897 Adelaide Convention, prevailed then the Commonwealth would have had no “choice”. The two terms were combined in a compound expression. The Parliament's power was from time to time to “establishand admit” new States. Emphasis added. (AdelaideDebates, supra n 12, 1010.) The interests of clarity would have been well served had this version been retained.

³⁰ Toohey Jsupra n 17, 6. Also Sawersupra n 25, 96.

³¹ This is distinct from the case where the Commonwealth purported to set the extent of representation at zero. For discussion of this possibility see text infra at n 44. In the unlikely event that no references were made to parliamentary representation, s 24 may, of its own force, establish the number of members of the House of Representatives. No number of Senators could be determined, however, as s 7 only provides a number for Original States in default of parliamentary provision. Note the comment of Barwick CJ inWestern Australia v Commonwealth (theFirst Territories Representation case) (1975) 134 CLR 201, 229.

³² “Strictly speaking”, says Professor Howard, “it can be said that this makes no sense, for once the admission or establishment of the new State has taken place it must be too late to start imposing conditions.” Howard, supra n 10, 10.

³³ The word “upon” might also bear a limiting, temporal sense — that is “at the same time as”. Whether the s 12I power extends to a new State after it is admitted or established is discussed below — see text at n 56.

³⁴ Supra n 12, 1007–1012.

³⁵ Ibid, 1010–101 I.

³⁶ Ibid 1009.

³⁷ This straw man is raised by Professor Howard courtesy of Professor Whalan. Howard,supra n IO, 3 citing: D J Whalan “Aspects of Northern Territory Law: Backbone or some .Skeletons in the Constitutional Cupboard” in Rhys Jones (ed)Northern Australia: Options and Implications (1980) 208–9.

³⁸ A detailed consideration of all the issues is not attempted, principally because of the excellent analyses available among those here listed. Consistent with the theme of this paper, concentration is placed upon the boundaries of Commonwealth power in this respect. See M H ByersNorthern Territory: Establishment as a State Opinion of the Solicitor-General 10 December 1980, 2–5; C Howardsupra n IO, 8–14; Quick and Garransupra n 18, 970; Toohey Jsupra n 17, 5--6; L Zincs “Representation of Territories and New States in the Commonwealth Parliament”Proceedings of the Australian Constitutional Convention Vol 2 Adelaide 26–29 April 1983, Appendix H.

³⁹ Supra n 1O.

⁴⁰ Ibid 9, 14.

⁴¹ Particularly in view of the decision on the equivalent words.ins 122 in theFirst Territories Representation case,supra n 31; confirmed inQueensland v Commonwealth (theSecond Territories Representation case) (1977) 139 CLR 585.

⁴² M H Byei:ssupra n 38, 2–5; Toohey Jsupra n 17, 5–6, L Zinessupra n 38, 10--:13.

⁴³ L Zines.ibid 12...This should bea fortiori as there can be no doubt as to the; meaning of its use of the word “representation”. The minority in theFirst Territories Representation case read down itssignification in s 122 to exclude senatoi:s or membei:s with full voting rights. Those judges who referred to s 121 recognised that no such limitation could be applied there. The restricted. reading of s 122 was powerfully reasserted in the second case which only upheld its pred essor.by application of the principles of stare decisis. However, even if the decisio11 should at some time be overturned this would not disturb the reasoning whi1:h supports the proffered view, of s. 121.

⁴⁴ Supra n 41, 617.

⁴⁵ Supra n 31, 229.

⁴⁶ Emphasis added.

⁴⁷ (1977) 139 CLR 527.

⁴⁸ This outcome is assumed by Barwick C J in theFirst Territories Representation case,supra n 31, 229.

⁴⁹ Supra text at nn 42, 43.

⁵⁰ Attorney-Genera/for New South Wales (Ex Rel McKel/ar) v Commonwealth, supra n 47, 569.

⁵¹ Supra n 31, 287.

⁵² Contrast the views of Mason J, ibid 271, who explicitly refers to the position of new States in this regard. See also the various other judicial views on the question collected by Zines,supra n 38, 7-8.

⁵³ Supra n 31, 268.

⁵⁴ Id for discussion of this proposition see Zinessupra n 38, IO.

⁵⁵ Part of the logic that supported the prevailing view in the Territories Representation cases was thatthe word “representation” ins 122 included representation by Senators and Members with full voting rights because this was its signification in s 121. TheFirst Territories Representation casesupra n 31per Mason J, 282-283per Murphy J. TheSecond Territories Representation case,supra n 41per Mason J, 606.

⁵⁶ s 106.

⁵⁷ The amended Constitution still has 128 sections because the addition of s 105A is matched by the repeal of s I27.

⁵⁸ The explicit mention of New Zealand and the Northern Territory in cl 6 now confers upon them no special status under the Constitution as potential States. The simplest justification for this statement is that the “colon(y)” of new Zealand and the “northern territory of South Australia” no longer exist. The latter was surrendered to the Commonwealth, being accepted under s 111 by virtue of the Northern Territory Acceptance Act, No 20 of 1910 and thus becoming a Commonwealth territory. The former, not having become an Original State, could only now become a State by virtue of legislation under s 121 and even if cl 6 could be construed as referring to the modem nation of New Zealand, this could have no bearing on the scope of the s 121 power. At most it could require that New Zealand could not become a part of the Commonwealth other than as a State. See G Sawer Australia-New Zealand Association: Some Constitutional Problems, New Zealand Institute of International Affairs, Auckland Branch, Occasional Paper No I 1968, 21–25.

⁵⁹ Discussion above reveals that s 24 is an exception. The specific provision in relation to represenation ins 121, when exercised, has the effect of making a reference to a “State” therein only applicable to Original States. See text nn 42–43infra and L Zines “Representation of Territories and New States in the Commonwealth Parliament”Proceedings of the Australian Constitutional Convention Vol 2 Adelaide 26-29 April 1983 Appendix H, 12.

⁶⁰ Supra text at n37.

⁶¹ For a more comprehensive list see Toohey J “New States and the Constitution: An Overview” a paper delivered at the Law Society of the Northern Territory Conference The Northern Territory of Australia and Statehood, 1–3 October 1986, 11.

⁶² This argument does not follow from the present analysis because, with the exception of the requirement that a trial on indictment be held in the State where the offence was committed, these guarantees are not expressed in terms of States or their residents, but, rather, are generally expressed limitations on Commonwealth capacity. There seems no reason why these specific provisions should not subjugate the general s 121 power as they would any other that did not clearly authorise their violation. As Latham CJ said of s 116, it “is a general prohibition applying to all laws, under whatever power those Jaws may be made.”Adelaide Company of Jehovah's Witnesses vCommon-wealth (1943) 67 CLR 116, 123. Generally approved inAttorney-General for Victoria (Ex rel Black) v Commonwealth (theDOGS case) (1981) 146 CLR 559.

⁶³ Clause 5, with similar wording in ss 7, 15, 24, 25, 75, JOO, ll7.

⁶⁴ Section 7, with similar in ss 9, JO, 12, 13, 14.

⁶⁵ Section9,withsimilarinss JO, 15,25,29,30,31,41,51,90, 105A, 107,108, Ill, 123,124.

⁶⁶ Section 12, with similar in ss 7, 15, 21, 84, 110.

⁶⁷ Clause5withsimilarinss 9, 10,25, 30, 31, 34,44, 76, 84, 85,90, 105A, 109,112,113,118.

⁶⁸ Section 51, with similar in cl 5 and ss 73, 77, 118.

⁶⁹ Section 69, with similar in ss 84, 85, 89.

⁷⁰ Section 87, with similar in ss 105, 105A.

⁷¹ Section 51 (xiii) and (xiv). Indeed, at Federation, many did not.

⁷² Section 51 (xxxii), (xxxiii) and (xxxiv), and ss 98, 102, 104. Section 110 both contemplates and provides for the situation where a State does not have a Governor. A provision that “In each State of the Commonwealth there shall be a Governor”, which stood as part of a number of the drafts of the Constitution, was expressly removed by the Adelaide Convention.Official Report of the National Australasian Convention Debates Adelaide, (1897) 992-1001. The history is given by J Quick and R R GarranThe Annotated Constitution of the Australian Commonwealth (1901) 939-940.

⁷³ For a discussion of the meaning of the word “territories” in the clause supra text at n I 7ff.

⁷⁴ Or equivalent — see s I IO.

⁷⁵ This description is taken from the most appropriate definition of the word “State” given by the Oxford English Dictionary.

⁷⁶ “The Commonwealth, unlike the State, is the creature of the Constitution.”Queensland Electricity Commission v Commonwealth (1985) 61 ALR I, 41per Deane J.

⁷⁷ Quick and Garran supra n 72, 930.New South Wales v Commonwealth (theSeas and Submerged Lands case) (1975) 135 CLR 337, 372per Barwick CJ.

⁷⁸ Quick and Garran supra n 72, 927–929. This is not to deny that, on a formal level, the Constitution can be said to have created the Original States as such. It was by its force alone that the colonies were changed into States. See Barwick CJ ibid.

⁷⁹ Section I I2 can be similarly construed but is coupled with an express grant of power to the Commonwealth to annul any law passed by States by virtue of the facility granted to them. All discussion of the scope of the legislative power of new States that follows assumes the effect of s 9.

⁸⁰ For example ss 9, 25, 41, 51 (xxxvii).

⁸¹ Sections 29, 30, 31.

⁸² Section 9.

⁸³ Section 12. Or equivalent — see s 110.

⁸⁴ Outside the area of parliamentary representation, problems are also raised by those sections that provide for the alteration of State territory and boundaries. Sections 111, 123 and 124 could all be said to be inapplicable to a State without a Parliament as its consent is necessary to their operation. Indeed s 124 provides that a new State may be formed by separation of territory from a State “only with the consent of the Parliament thereof' (emphasis added), suggesting that such a State would be incapable of this type of subdivision.

⁸⁵ McCawley v R [1920] AC 691.

⁸⁶ Taylor v Attorney-General of Queensland (1917) 23 CLR 457, 473--474per Isaacs J. It might also be thatreform of a State legislature is limited by its incapacity to abdicate its own powers:In re The Initiative and Referendum Act (1919] AC 935, 945 andCommonwealth Aluminium Corporation v Attorney-General for Queensland [1976) Qd R 231, 236–237. The scope of this proposition is also unclear.

⁸⁷ Supra text at n 54.

⁸⁸ One of the assumptions of those drafting the Constitution was that State Parliaments would consist of an upper and a lower house. Before the 1977 constitutional amendments, s 15 required that casual senate vacancies be filled by the “Houses of Parliament of the State . . . sitting and voting together”. Since 1922 the Queensland Parliament has been unicameral and yet on a number of occasions, prior to 1977, it filled casual Senate vacancies. Odgers, in hisSenate Practice,suggested that the absence of any challenge on these occasions was a good indication of a general view that a unicameral legislature was capable of complying withs 15 in its unamended form. See JR OdgersAustralian Senate Practice (5th ed 1976) 105.

⁸⁹ The Australia Act could have considerable bearing on this matter. It has already been suggested that s 7 entrenches the position of the existing State Governors. (Senate: Weekly Hansard No 19 1985, 2 December, 2688.) Removal of the application of the Colonial Laws Validity Act 1865 (UK) by s 3( I) — combined with recent statements that the Crown is divisible (R v Secretary of State for Foreign Affairs, Ex parte Indian Association of Alberta (1982] QB 892)- may tend to the opposite conclusion.

⁹⁰ If s 122 is sufficient for this purpose then so also is s 121. See G R Nicholson “The Constitutional Status of the Self-Governing Northern Territory” (1985) 59 AU 698, 701–704.

⁹¹ C Howard “Statehood on Conditions: Federal Representation and Residual Links” an unpublished paper delivered at the Law Society of the Northern Territory Conference The Northern Territory of Australia and Statehood Darwin 2 October 1986, 15–17.

⁹² Sub-section(I).

⁹³ Sub-section (2).

⁹⁴ This may have some consequences for the imposition of particular transitional provisions. Section 90 would, for instance, prevent a period during which a new State might continue to impose and collect its own duties of customs and excise. Compare the situation of Western Australia during the first years of Federation as provided for in s 95. If certain transitional provisions were imposed as part of the Act admitting or establishing the new State, then sections such as 84 and 85 might be applicable. This could generally be avoided by the expedient of providing for a period, however brief, during which the potential new State became a Commonwealth territory with the necessary transitions taking place at that time, prior to its becoming a State. On the specific question of the transfer of departments of the public service, those provided for in s 69 would probably have to be effected although the section itself does not apply with any elegance to new States. With reference to transitional provisions note the effect of s 105A outlined in Toohey, supra n 61, 15–16.

⁹⁵ And s 107 if it can be construed so as to apply.

⁹⁶ The vote against the guarantee of equality was a convincing nine States to two despite the urgings of delegate Mason that “the best policy is to treat them with that equality which will make them friends not enemies”. E DumbauldThe Constitution of the United States (1964) 422-426; United States SenateThe Constitution of the United States of America: Analysis and Interpretation L S Jaysonet al (eds) (1973) 842-845. Compare cl 113 as presented to the Adelaide session of the Australasian Convention and ensuing debate. Also the attempted amendment by Western Australia at Melbourne.Official Report of the National Australasian Convention Debates Adelaide, (1897) 1007ffOfficial Record of the Debates of the Australasian Federal Convention Melbourne, (1898) 694.

⁹⁷ Escanaba Co v Chicago 107 US 678, 689 (1882).

⁹⁸ Also cited asCoyle v Smith 221 US 559 (1911).

⁹⁹ “The power is to admit 'new States into this Union.' 'This Union' was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of the Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission. Thus it would result ... that the powers of Congress would not be defined by the Constitution alone, but in respect to new States, enlarged or restricted by the conditions imposed upon new States by its own legislation admitting them into the Union”.Ibid 567per Lurton J.

¹⁰⁰ Ibid 566.

¹⁰¹ “The Northern Territory: Constitutional Status Present and Future” in R Herr and P Loveday (eds) Small is Beautiful: Parliament in the Northern Territory Canberra, Australasian Study of Parliament Group and the North Australia Research Unit of the Australian National University (1981), 95–98.

¹⁰² Although in practice the process of constitution making has often been facilitated byCongressional legislation. See L N Park “Admission of States and the Declaration of Independence” (1960) 33 Temple LQ 403, 404–407.

¹⁰³ The various Enabling Acts have regularly employed phraseology importing the equality of the new State. See Coyle v Oklahoma, supra n 98, 566–567.

¹⁰⁴ For an ebullient exposition of popular sovereignty, its embodiment in the United States Constitution and the. consequences for the formation of new States, see: “The Formation and Admission of New States into the Union” (1857) 40 Democratic Review 413.

¹⁰⁵ In the Matter of a Reference as to the Constitutional Validity of Section 17 of the Alberta Act [1927] SCR 364;Attorney-Genera/for Saskatchewan v Canadian Pacific Railway Co [1953] AC 594.

¹⁰⁶ Canadian Pacific, ibid 614.

¹⁰⁷ Id.

¹⁰⁸ Ibid 613--614.

¹⁰⁹ Supra n IOI, 96.

¹¹⁰ It has been suggested that, particularly following the passage of the Australia Act, the fundamental authority that supports the Australian Constitution is to be found other than in its characterisation as an enactment of the Parliament of the United Kingdom, and perhaps in the “consent and authority of the Australian people”. J A Thomson “The Australian Constitution: Statute, Fundamental Document or Compact?” (1985) 59 L Inst JI 199. Does this open the way for a greater willingness to resort to implications in general, and to the possible application to the new States provision of the type of reasoning evident in the United States cases in particular? It has certainly been suggested that a newgrundnorm may have important implications for constitutional interpretation.(Ibid) II 99-1201) A cogent case has been made that this consequence is neither necessary nor likely. G J Lindell “Why is Australia's Constitution Binding?- the Reason in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29. The changes that have seen the achievement by Australia of its independence have been both slow and evolutionary in nature. There is no reason to think that any consequent changes in the High Court's approach to constitutional construction will be otherwise.

¹¹¹ One of the more remarkable contributions was that of The Honourable Richard Chaffey Baker. His three-hundred-page workA Manual of Reference to Authorities for the use of the Members of the National Australasian Convention which will Assemble at Sydney on March 2, 1891, for the Purpose of Drafting a Constitution for the Dominion of Australia, as its title suggests, was produced specifically and solely for convention delegates. It was only subsequently reprinted, for a more widespread distribution, in Adelaide by WK Thomas & Co in 1891. His “Schedule of Books Cited” appears at pp 7–8. The main text is a detailed consideration of the issues facing the Convention in light of overseas experience; that of the United States and Canada in particular. The volume'sSchedules reproduce the Constitutions of those countries, the resolutions of the Quebec Convention and the South Africa Union Act, 1877. Other contemporary references are listed in J A La NauzeThe Making of the Australian Constitution (1972) 358–359; and J Quick and R R GarranThe Annotated Constitution of the Australian Commonwealth (1901) ix.

¹¹² Ibid, vii.

¹¹³ E M Hunt American Precedents in Australian Federation (1930). R D Lumb Australasian Constitutionalism (1983) ch 5. J Reynolds “A I Clark's American Sympathies and His Influence on Australian Federation” (1958) 32 AU 62.

¹¹⁴ Quick and Garran supra n 111, vii.

¹¹⁵ In chronicling the interaction of these “centripetal” and “centrifugal” forces, Ronald Norris concludes that “To the extent that fear wrought federation, the fear was less of yellow hordes — warlike or peaceful — and more of the economic consequences of separation or isolation.” “Towards a Federal Union” in B W Hodgins et al (eds)Federalism in Canada and Australia: The Early Years Canberra, (1978) 173–193. Quotation at 192–193.

¹¹⁶ Supra n Ill, 30.

¹¹⁷ The Coming Event; or, The United Provinces of Australia. Two lectures Delivered in the City Theatre and School of Arts, Sydney (1850), 14. The adjective is Quick and Garran's, supra n 111, 92.

¹¹⁸ The term “States” was adopted in 1891. La Nauze supra n Ill, vii, 57.

¹¹⁹ Supra n 11I, 928.

¹²⁰ James Bryce, author of The American Commonwealth (1888), an authority of considerable influence with those who drafted the Constitution.

¹²¹ Modern Federalism (1976) 51.

¹²² Ibid ch 5.

¹²³ D'Emden v Pedder (1904) l CLR 91.

¹²⁴ They have been recently discussed in the following: N Douglas” 'Federal' Implications in the Construction of Commonwealth Legislative Power: A Legal Analysis of their Use” (1985) 16 UWALR l05, R D Lumb “Problems of Characterization of Federal Powers in the High Court” (1982) 45; L Zines The High Court and the Constitution (2nd ed 1987) particularly chs I and 14; L Zines “The State of Constitutional Interpretation” (1984) 14 FL Rev 277.

¹²⁵ Attorney-General for New SouthWales v Brewery EmployersUnion (theUnion Label case) (1908) 6 CLR 469,503 per Griffith CJ.

¹²⁶ Thus, in the case of s 5l(i), power over intra-State tradeand commerce not being explicitly granted to the Commonwealth was reserved to the States.

¹²⁷ The Union Label case, supran 125, 503 per Griffith CJ. For a list ofcases applying this rule and their effect see L ZinesTheHigh Court and the Constitution,supra n 124,5.

¹²⁸ The doctrine was held tobe of reciprocal effect and was first applied in protection of theCommonwealth. D'Emden v Pedder,supra n 123.

¹²⁹ To take anexample from the case that established the reciprocal nature of theprinciple(Federated Amalgamated Government Railway and Tramway.Service Association v NSW Railway TrafficEmployees Association (theRailway Servants' case) (1906) 4 CLR 488.) Commonwealth legislation under theconciliation and arbitration power (s 5 I (xxxv)) could not apply todisputes between State railways and their employees and so anorganisation of such employees could not be registered under theCommonwealth Conciliation and Arbitration Act.

¹³⁰ D'Emden v Pedder, supra n 123, 109.

¹³¹ This was certainly Griffith CJ's viewof “his” 1891 draft. SeeOfficial Report of the National Australasian Convention Debates Sydney, (1891)523. The implied immunities doctrine, it has been pointed out, wasbased on a general concept of the nature of federalism while it wasthe particular manifestation of federalism in the Australian Constitution that was seen as requiring the doctrine of reservedpowers. L ZinesThe High Court and the Constitution, supra n 124, 5.

¹³² Supra n 98.

¹³³ Sawer supra n 12 I, ch 5 andpassim.

¹³⁴ Douglas supra n 124, 106. ZinesThe High Court and the Constitution, supra n 124, 7.

¹³⁵ Amalgamated Society of Engineers v Adelaide Steamship (theEngineers case) (1920) 28 CLR 129.

¹³⁶ Ibid 148.

¹³⁷ Ibid 151.

¹³⁸ Ibid 145.

¹³⁹ Isaacs J's conception of federation as expressed during the Convention debates of 1897-1898 might well have been characterised by the majority of delegates as “individual”. It, along with his manner, forced on him the role of vigorous dissenter, a role that equally had to content him, on major constitutional issues, for his first fourteen years as a Justice of the High Court. (La Nauzesupra n 111, 123, 129; Z CowenIsaac Isaacs (I 967) chs 4, 7.) In characterising Isaacs J as an interpreter of the Constitution, Cowen chooses the words “the flame of an aggressive nationalism” and “the theme of an expanding national power”.Ibid 149. See also L F CrispThe Unrelenting Penance of Federalist Isaac Isaacs (1981).

¹⁴⁰ See Windeyer J irtVictoria v Commonwealth (thePayroll Tax case) (1971) 122 CLR 353,396. The relevant passage is quoted at length in ZinesThe High Court and the Constitution, supra n 124, 15.

¹⁴¹ Sawer supra n 121, ch 5.

¹⁴² South Australia v Commonwealth (1942) 65 CLR 373.Victoria v Commonwealth (1957) 99 CLR 575.

¹⁴³ Although perhaps it would not have surprised all. One is driven to wonder just how far Alfred Deakin 's pre-Federation views had been altered by fifteen months of hindsight when he wrote of the States being “legally free, but financially bound to the chariot wheels of the central Government”. Federated Australia (1968) 97.

¹⁴⁴ The inconsistency between this and aspects of the decision itself has frequently been pointed out. See Douglas supra n 124, 108 and references he cites there in n 16.

¹⁴⁵ Particularly those of Dixon J:Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 by implication at 390; West v The CommissionerofTaxation (1937) 56 CLR 657,681-683; Essendon Corporation v Criterion Theatres (1947) 74 CLR I, 22-23.

¹⁴⁶ Melbourne Corporation v Commonwealth (theState Banking case) (1947) 74 CLR 31; ThePayroll Tax casesupra n 140;Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192.

¹⁴⁷ See Douglassupra n 124, 114-134; ZinesThe High Court and the Constitution, supra n 124, 39-40, 61, 77-78, 251-252, 304 and his “The State of Constitutional Interpretation”supra n 124,280-282 and passim.

¹⁴⁸ Douglassupra n 124 and Zinessupra n 124 discuss the criticisms that can be, and are, made. See also “The Concept of the 'Federal Balance' “ inCurrent Notes (1986) 60 AU 653.

¹⁴⁹ The Electricity Commission case, supra n 146.

¹⁵⁰ Ibid 19per Mason J.

¹⁵¹ Id.

¹⁵² Koowarta v Bje/ke-Petersen (1982) 153 CLR 168, 216.

¹⁵³ “The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities. Among them it distributes powers of governing the country. The framers of the Constitution do not appear to have considered that power itself forms part of the conception of a government. They appear rather to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them.” This is Dixon J's concise summation in theState Banking casesupra n 146, 82.

¹⁵⁴ Whether this is a practical possibility is another question. As has been pointed out, even the most expansive of Commonwealth powers, the external affairs power (s 51 (xxix)), is not without its limits. Zines “The State of Constitutional Interpretation” supra n 124, 286.

¹⁵⁵ That certain Commonwealth powers of their nature include a capacity to discriminate against States was widely recognised in the Electricity Commission case, supra n 146. See particularly Deane J, 44-45.

¹⁵⁶ The implication that prevents the placing on the States of special burdens is aimed, not at preventing differential treatment as such, but, at such burdens being applied to strike de facto at the existence or functional integrity of the State components of the Federation. The State Banking case, supra n 146, 81-82 per Dixon J.

¹⁵⁷ However analogous the present position of the Northern Territory, there is a crucial distinction. It is not a self-governing colony of the Imperial Crown, it is a territory of the Commonwealth under its unfettered control.

¹⁵⁸ The role envisaged by Sir George Turner, at the. Adelaide session of the Convention, in the context of urging that any existing colony that did not immediately join the Federation should equally be subject to terms and conditions. Debates, supra n 96, 1007.

¹⁵⁹ Depending on whether the recitals in the Constitution or the Australia Act are preferred.

¹⁶⁰ The possibility would always remain of amendment via the ponderous machinery of s 128. That depends on the new State constitution being viewed as a part of the Federal Constitution. See Quick and Garran supra n 111, 930.

¹⁶¹ For a discussion of these types of procedure and their problems see: C Palley “Constitutional Devices in Multi-Racial and Multi-Religious Societies” (1968) 19 NILQ 377.

¹⁶² In the First Report of the Constitutional Commission (1988) the Commission addressess the question of new States (see Vol 2, 559-569). Properly, it desires clarification in the area of Parliamentary representation. It recommends amendments to “establish the entitlement of a new State to membership of the House of Representatives and the Senate” by means of “firm formulas for the extent of representation”. On section 121, it recommends amendments to make it clear that the Federal Parliament has power:

(a)to create or establish a constitution for a new State:

established from a Territory;

formed by separation of a territory from a State or by the union of two or more States, or parts of States; or

formed by the union of a part or parts of a State and a Territory, and

(b)to make its approval of the Constitution of an independent body politic a condition of the admission of that body politic as a new State.

Significantly, the Commision has not proposed a preferred wording. Great care will be required to ensure that such “clarifications” do not curtail the power granted by the section. On the interpretation proffered here, for example, the Commonwealth already has the power to rewrite the constitution of an incoming independent body politic.