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General-the Hon. R. W. Pennefather; Colonial Secretary-the Hon. G. Randell; without portfolio-the Hon. S. Burt, Q.C.

§ 47. "Colonies or Territories."

The only "States" at the outset will be the " Original States," namely, New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. But under sec. 121 the Federal Parliament may admit or establish new States; and any colonies or territories which are so established as States will thenceforth be included in the definition. Apart from New Zealand and the northern Territory of South Australia, new States are hardly likely to be formed except by the sub-division of existing States. TERRITORIES.—A description may here be given of the chief Australasian territories which are likely, in time, to become territories of the Commonwealth-though their size or political condition, or both, render it unlikely that any of them will be admitted to the rank of States.

NORFOLK ISLAND.-This island, about five miles in length, and three in breadth, situated 900 miles from the Australian main land, and 1,100 miles from Sydney, was discovered by Captain Cook, on 9th October, 1774. It is said to be one of the most beautiful spots in the Pacific. The inhabitants are governed, since 14th November, 1896, by a Resident Magistrate, and an elective Council of 12 members; they are subject to the instructions of the Governor of New South Wales, who is expected to visit it once during his term of office. Area, 10 square miles; population about 750.

LORD HOWE ISLAND.-This picturesque island, seven miles in length, and about one and half miles in breadth, situated about 400 miles from Sydney, was discovered by Lieutenant Ball, on 14th February, 1788, whilst on a voyage in H.M.S. Supply from Port Jackson to found a Settlement at Norfolk Island. It is administered by the Government of New South Wales, and since 1882, it has been under the jurisdiction of a visiting Magistrate from Sydney. Population, 55.

FIJI.--The Fiji Islands were ceded to the Queen by the Chiefs and people thereof, and the British flag was hoisted on 10th October, 1874. Rotumah was annexed in December, 1880. The islands are ruled by a Governor, assisted by an Executive and a Legislative Council. There are about 80 inhabited islands in the group, containing a total area, including Rotumah, of about 8,000 square miles, and having a population of 121,180; of whom 99,773 are Fijians, and the rest Indians, Polynesians, Rotumans, and Europeans.

NEW GUINEA.-By letters patent, dated 8th June, 1888, British New Guinea was erected into a separate possession, as part of the Queen's dominions. Its area is calculated to include about 86,000 square miles. The territory is at present governed by a local administrator, assisted by an Executive Council; the sum of £15,000 per year being guaranteed by the colonies of Queensland, New South Wales, and Victoria towards the expenses of governing the territory.

Repeal of Federal Council Act. (48 and 49 Vic. c. 60.)

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia18 and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

HISTORICAL NOTE.-Clause 6 of the Commonwealth Bill of 1891 was in almost identical words, and was adopted by the convention of 1897-8 without debate. At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

§ 48. "Laws Passed by the Federal Council."

The following Acts have been passed by the Federal Council, viz:-
:-

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(1.) 49 Vic. No. 1. An Act for shortening the language used in Acts of the Federal Council of Australasia. Cited as The Federal Council Interpretation Act, 1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 396.)

(2.) 49 Vic. No. 2. An Act to facilitate the proof throughout the Federation of

Acts of the Federal Council and of the Acts of the Parliaments of the Australasian Colonies, and of Judicial and Official Documents and of the Signatures of certain Public Officers. Cited as "The Federal Council Evidence Act, 1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 397.) (3.) 49 Vic. No. 3. An Act to authorize the service of Civil Process out of the jurisdiction of the colony in which it is issued. Cited as "The Australasian Civil Process Act, 1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 397.)

(4.) 49 Vic. No. 4. An Act to make provision for the enforcement within the Federation of judgments of the Supreme Court of the Colonies of the Federation. Cited as "The Australasian Judgments Act, 1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 398.)

(5.) 51 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries in Australasian waters adjacent to the colony of Queensland. Cited as "The Queensland Pearl Shell and Beche de mer Fisheries (extra-territorial) Act, 1888." Reserved for the Royal assent 20 Jan., 1888, and proclaimed 19 July, 1888. (Vic. Gov. Gaz., 17 Aug., 1888, p. 2576; 31 Aug., 1888, p. 2706; and 7 Sept., 1888, p. 2753.)

(6.) 52 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries in Australasian waters adjacent to the colony of Western Australia. Cited as "The Western Australian Pearl Shell and Beche de mer Fisheries (extra-territorial) Act of 1889." Reserved for the Royal assent 4 Feb. 1889, and proclaimed 18 Jan., 1890. (Vic. Gov. Gaz., 31 Jan., 1890, p. 332.)

(7.) 54 Vic. No. 1. An Act to facilitate the recognition in other colonies of Orders and Declarations of the Supreme Court of any colony in matters of Lunacy. Cited as "The Australasian Orders in Lunacy Act, 1891." (Vic. Gov. Gaz., 17 Feb., 1891, p. 903.)

(7.) 56 Vic. No. 1. An Act to make provision for the Discipline and Government of the Garrisons established at King George's Sound and Thursday Island at the joint expense of the Australian Colonies or some of them (3 Feb., 1893). Cited as 66 The Federal Garrisons Act, 1893." (Published in the Vic. Gov. Gaz., 3 March, 1893, p. 1131.)

(8.) 60 Vic. No. 1. An Act to provide for the naturalization within the Australian Colonies, or some of them, of persons of European descent naturalized in any of such colonies (1 Feb., 1897). Cited as "The Australasian Naturalization Act, 1897." (Vic. Gov. Gaz., 19 March, 1897, pp. 1121-2.)

(9.) 60 Vic. No. 2. An Act to make provisions for the enforcement in certain cases within the Australasian Colonies, or some of them, of Orders of the Supreme Courts of such Colonies for the production of Testamentary Instruments (1 Feb., 1897). Cited as "The Australasian Testamentary Process Act, 1897." (Vic. Gov. Gaz., 19 March, 1897, p. 1123.)

The colonies represented in the Federal Council were:-Victoria, Queensland, Western Australia, Tasmania, Fiji; and also, for a period of two years (from 10th December, 1888, to 10th December, 1890), South Australia. (See Historical Introduction, p. 114, supra.)

Application of Colonial Boundaries Act. (58 and 59 Vic. c. 34.)

8. 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.

HISTORICAL NOTE.-At the Melbourne Session of the Convention, after the first report, this clause was proposed by Mr. O'Connor in precisely the form in which it now stands. (Conv. Deb., Melb., pp. 1,826-7.)

$ 49. "Colonial Boundaries Act."

This is an Act to provide, in certain cases, for the alteration of the boundaries of self-governing colonies. It provides as follows:

(i.) Where the boundaries of a colony have, either before or after the passing
of this Act, been altered by Her Majesty 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.
(ii.) Provided that the consent of a self-governing colony shall be required for
the alteration of the boundaries thereof.

(iii.) In this Act "self-governing colony" means any of the colonies specified in
the schedule to this Act.

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The effect of this clause is to make the Colonial Boundaries Act apply, not to the separate States of the Commonwealth, but to the Commonwealth as a whole-just as it applies to the Dominion of Canada as a whole. In other words, the colonies which become States are in effect struck out of the schedule, and the Commonwealth of Australia is substituted.

The purpose of the Act is to confer general statutory authority on the Queen to alter the boundaries of a self-governing colony, with the consent of that colony, without the necessity of resorting to Imperial legislation in every case.

The reason for repealing the Act, so far as it applied to colonies which become States of the Commonwealth, is that the Constitution itself makes provision for the alteration of the boundaries of States. Sec. 123 provides that the Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of a majority of voters in the State, alter the limits of the State.

Now, therefore, the Colonial Boundaries Act only applies to the alteration of the boundaries of the Commonwealth. Apart altogether from that Act, the Commonwealth has power under section 121 to alter the boundaries of the Commonwealth by admitting new States; and sec. 122 contemplates, and perhaps impliedly gives, the power to accept or acquire new territories.

The first question is-What constitutes the consent of the Commonwealth within the meaning of the Colonial Boundaries Act? The consent of a colony is ordinarily given by its Legislature; and the consent here intended is evidently the consent of the Parliament of the Commonwealth. It may indeed be contended that by the Commonwealth, which is described in the Colonial Bonndaries Act, as "a self-governing colony," is meant the community; and that the consent of the community cannot be given either

by the Parliament of the Commonwealth or by the Parliaments of the States, or both, but only by the community in quasi-sovereign organization--i.e., by the amending power. This, however, was certainly not the intention of the framers of the Colonial Boundaries Act, or of the Federal Constitution; whatever may be the teachings of political science as to the seat of quasi-sovereignty in the Commonwealth. The consent of Canada under the Colonial Boundaries Act is clearly to be given by the Parliament of Canada; and the consent of the Commonwealth means the consent of the Parliament of the Commonwealth. That is to say, the word Commonwealth" is used here as in other provisions as referring to the central governing organs of the Commonwealth. (See notes § 17 and § 43"Commonwealth," supra.)

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Where the alteration of the boundaries of the Commonwealth involves merely territory which is not part of any State, the clause presents no further difficulty; but where it involves the alteration of the limits of a State, it becomes a question whether in addition to the consent of the Parliament of the Commonwealth, the consent of the Parliament and electors of the State is also necessary. The Colonial Boundaries Act, as amended by the Constitution Act, provides that Orders in Council, or letters patent, altering the boundaries of the Commonwealth, shall be valid if made with the consent of the Commonwealth; sec. 123 of the Constitution provides that the Parliament of the Commonwealth may, with the consent of the Parliament and a majority of the electors of a State, alter the limits of the State. The latter section certainly implies that the Parliament of the Commonwealth may not alter the limits of a State without such consent. The question is whether, in consenting to an alteration of boundaries by the Queen, the Parliament can be said to alter the limits of a State. Under sec. 123, the Parliament of the Commonwealth makes the alteration; under the Colonial Boundaries Act, the Queen makes the alteration, and the Parliament of the Commonwealth merely consents. It is certainly open to argument that the consent of the Commonwealth, in such a case, is in effect an alteration of the limits of a State by the Commonwealth, and therefore that the Parliament of the Commonwealth cannot lawfully give such consent without the consent of the Parliament of the State, and the approval of a majority of the electors.

Constitution.

9. The Constitution50 of the Commonwealth shall be as follows:

THE CONSTITUTION.

This Constitution is divided as follows:

I.-The Parliament:

Chapter

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Chapter

VI.-New States:

Chapter VII.- Miscellaneous :

Chapter VIII.-Alteration of the Constitution :

The Schedule.

HISTORICAL NOTE. -The division of the Constitution into Chapters and Parts is precisely the same as in the Commonwealth Bill of 1891. At the Adelaide Session, 1897, the wording of the Bill of 1891 was followed exactly. At the Melbourne Session, after the fourth report, a few verbal changes were made-notably the substitution of "Alteration" for "Amendment;" but the mode of division remained unchanged.

In the Bill as introduced into the Imperial Parliament, the clause was altered to read :-"Subject to the foregoing provisions, the Constitution of the Commonwealth shall be as set forth in the schedule to this Act." The Constitution was appended as a schedule. In Committee, however, the clause was restored to its original shape. Hist. Intro., pp. 242, 248, supra.)

$ 50. "The Constitution."

(See

ORGANIZATION OF THE COMMONWEALTH WITHIN THE CONSTITUTION.-Up to this stage the Imperial Act has dealt with the organization of the Commonwealth outside of and without reference to the Constitution. Clause 9 unfolds the Constitution, which, as we have already seen, deals with the internal organization of the Commonwealth, distributes power, provides for the government of the Commonwealth, guarantees the corporate rights of the States, parts of the Commonwealth, and the personal rights and liberties of individuals resident within the Commonwealth; and contains provisions for the accomplishment of changes to meet the possible requirements and potentialities of the future. We are now able to appreciate the distinction, previously emphasized, between the Commonwealth and the Constitution. Back of the Federal and State governments lies the amending power-the quasi-sovereign organization of the Commonwealth within the Constitution; back of the amending power and the Constitution lies the sovereign British Parliament, which ordained the Constitution. (Burgess, Political Sc., I., p. 57.) The Constitution embodies the terms of the deed of political partnership between the people and the States, by whose union the Commonwealth is composed. This deed contains a complete scheme for the regulation of the legal rights and duties of the people, considered both as members of the united community, and as members of the provincial communities in which they respectively reside; it contains a full delimitation and distribution of the governing powers of the Commonwealth, not only creating a central government, but expressly confirming the Constitutions, powers and laws of the State governments so far as not inconsistent with grants of powers to the central government. This is a feature which presents a marked contrast to the Constitution of the United States, referring to which Bryce says:-

"It must, however, be remembered that the Constitution does not profess to be a complete scheme of government, creating organs for the discharge of all the functions and duties which a civilized community undertakes. It pre-supposes the State governments. It assumes their existence, their wide and constant activity. It is a scheme designed to provide for the discharge of such and so many functions of government as the States do not already possess and discharge." (Bryce's American Comm., vol. I., p. 29.)

By implication, no doubt, the State Constitutions of the United States must be read along with and into the Federal Constitution in order to make it cover the whole field of civil government. But no such implication or inference is necessary in order to show that the Constitution of the Commonwealth is not a fragmentary statute dealing in a partial manner with the political government of the Union. It does not merely presuppose the State governments. It expressly recognizes and confirms their existence (secs. 106-7-8). It is a comprehensive and a complete system of government, partitioning the totality of quasi-sovereign powers delegated to the Commonwealth, as well as providing for a future development and expansion of those powers. This is suggested by a general conspectus of the Constitution now under review, and it is confirmed by an analysis of the Constitution in detail. A logical classification of the various powers exercisable under the Constitution would resolve them into three parts-

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