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TERRITORY PLACED BY THE QUEEN.- Any country not within the chartered limits of a State may be placed by the Queen under the control and authority of the Commonwealth. This grant of power will enable the Queen, with the concurrence of the Federal Parliament, to give effect to any approved plan for transferring the Northern Territory of South Australia, or British New Guinea, to the Commonwealth, and will enable those countries to be placed under the authority of the Commonwealth.

TERRITORIES OTHERWISE ACQUIRED. – The only other way of acquiring territory expressly mentioned in the Constitution is under sec. 125, which provides that the seat of Government shall be within territory which shall have been “granted to or acquired by the Commonwealth.” It seems, however, that territory may also be acquired by the joint operation of sec. 51-xxxi. and 52- ii. ; under which the Federal Parliament is empowered to acquire property from any State for public purposes, and is given exclusive jurisdiction over “places” so acquired. (See Notes to sec. 52, supra.) The phrase “otherwise acquired” is wide enough to cover the acquisition of federal territory by every mode within the power of the Conimonwealth, either under the express words of the Constitution, or by implication from its general quasi-sovereign powers—as for instance, the acquisition of territory by purchase or by cession from other colonies or countries not forming parts of the Commonwealth.

GOVERNMENT OF TERRITORY. - The Parliament is authorized to make laws for the government of territory however acquired. Such territory may be ruled by the Federal Authority, acting not merely as a local government but as a quasi-sovereign government. It may rule the territory as a dependency, providing for its local municipal government as well as for its national government, in such a manner as may seem politic, wise, and just, having regard to its own interests as well as those of the people of the territory. (American Ins. Co. v. Canter, 1 Pet. 511 ; National Bank v, Yankton Co., 101 U.S. 129.) .

Territories may either be ruled by a Federal department charged to administer Federal laws therein, or they may be granted municipal institutions and territorial legislatures, empowered to make ordinances not inconsistent with the laws and Constitution of the Commonwealth. Should such territorial ordinances be contrary to Federal law, they may be annulled by the Federal Parliament. (Mormon Church v. United States, 136 U.S. p. 1.) In legislating for territories, the Federal Parliament will possess the combined powers of the National and of the State Governments. (American Ins. Co. v. Canter, 1 Pet. 511 ; Forsyth v. United States, 9 How. 571.) The territories bear much the same relation to the general government that counties do to the State, and the Federal Parliament may legislate for them as States do for their respective municipal subdivisions. (National Bank v. Yankton County, 101 U.S. 129. Baker, Annot. Const. p. 162.)

TERRITORIAL LEGISLATION.--A clause in the organic act of the territory of Oregon provided that the legislative power of the territory should “extend to all rightful subjects of legislation not inconsistent with the Constitution of the United States." Helil that, under the power so conferred, the territorial legislature had power to enact a law annulling the marriage of one of its citizens, even though the wife from whom he was so divorced had never resided within the territory. (Maynard v. Hill, 125 U.S. 190. Baker, Annot. Const. p. 167.)

Under the powers of the Federal legislature reserved in the organic acts of the territories to annul the acts of their legislatures, the absence of Federal action annulling a law that

in conflict with the organic act cannot be construed as recognition that such law is valid. (Clayton v. Utah, 13:2 U.S. 632. Id.)

The Federal legislature can grant to a corporation existing under the laws of a State, the right to construct a railroad within any of the territories of the Union, and the State afterwards created out of the territory could not put any impediment on the enjoyment of the right thus conferred except upon the same terms that it could do when applied to its own previously granted right. In such matters the State only succeeds to the Federal authority over the territory. (Van Wyck v. Knevals, 106 Ü.S. 360 ; Railroad Co. i. Baldwin, 103 U.S. 426. Id. 166.)

The Federal legislature may not only abrogate laws of the territorial legislatures, but may itself legislate directly for the local government. In other words, it has full

and complete legislative authority over the people of the territories and all departments of the territorial governments. It may do for territories what the people under the Constitution of the Union may do for the States. (National Bank v Yankton Coun'y, 101 U.S. 129 ; cited and approved in Mormon Church v. United States, 136 U.S. 1-43. Id. 165.)

The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. The Federal legislature may prescribe the qualification of voters within a territory, and may exclude from such privilege persons guilty of bigamy. (Murphy v. Ramsey, 114 U.S. 15. Id.)

PREROGATIVE IN TERRITORIES. - In the case of Reg. v. Amer (42 Upp. Can. Q.B. 391), where numerous cases are cited on the prerogative of the Crown, Harrison, C.J., said : “ The prerogative as to the issue of special commissions of Oyer and Terminer and General Gaol Delivery exists in all its integrity in the case of what are now known as the unorganized tracts or provisional judicial districts. The exercise of the power by the Governor-General of the Dominion, or by the Lieutenant Governor of the Provinces, is not inconsistent either with sub-sec. 27, sec. 91, or sub-sec. 14 of sec. 92 of the B.N.A. Act.” (Wheeler, C.C.,

JUDICIAL AUTHORITY IN TERRITORIES. — The legislative and judicial authority of the Federal Government in the territories is illustrated by the Canadian case of Riel v. The Queen, 10 App. Cas. 675. By the British North America Act, 1871, the North-west Territories became part of the Dominion, which was given power to pass any law for the peace, order, and good government thereof. The Dominion Parliament passed the North-west Territory Act, 1880, which gave power to try all criminal cases to a tribunal consisting of two magistrates and a jury of six, instead of a Judge and a jury of twelve men, as in England. Louis Riel was tried by a territorial court on a charge of high treason ; he was convicted and sentenced to death. Riel applied to the Privy Council for special leave to appeal against the conviction, on the ground that the court had no jurisdiction to try the case. His counsel contended that it was not competent for the Dominion Parliament, under the Act of 1871, to take away from a person charged with treason the right to be tried by a jury of twelve, whose verdict must be unanimous. The Privy Council refused leave to appeal. (See extract from the judgment, per Halsbury, L.C., quoted supra, p. 514.)

p. 33.)

$ 473.

Representation of such Territory.”

A territory which has been surrendered to the Commonwealth by a State, or placed under the authority of the Commonwealth by the Queen, or been otherwise acquired by the Commonwealth, may be allowed representation in either house of the Federal Parliament, to the extent and on such terms as the Parliament thinks fit. The repre. sentation thus accorded is not representation as a State, but territorial representation. It may be allowed not only- as in the case of new States —" to the extent " which the Parliament thinks fit, but also "on the terms which it thinks fit.” Apparently, therefore, the Parliament may not only fix the number of representatives for a territory, but determine--at least in some degree--the mode of representation. In the United States, there being no power to allow the territories to send members to Congress, the organized territories are nevertheless allowed to be represented in Congress by delegates who may speak but not vote. It would seem clear that under this Constitution the Parliament may, if it thinks fit, allow the representation of territories by delegates of the same kind, who, although allowed to sit and speak in the Senate or the House of Representatives, would not be members of either House, or entitled to vote therein. The Parliament may, however, under this section, allow a territory to be represented by actual members in either house ; and in that case no terms would be imposed inconsistent with the provisions of the Constitution as to mode of election, tenure, and right to vote. The number of representatives which a territory may be allowed is of course absolutely in the discretion of the Parliament.

SEAT OF GOVERNMENT. - In the United States, the District of Columbia is not allowed even territorial representation. Under this Constitution, however, the power to allow the representation of territories clearly includes the territory within which the seat of Government is situated. Whether it would also include any “place” acquired by the Commonwealth for public purposes is a more doubtful matter. It is of course most unlikely that any territory-other than the seat of Government- :-acquired for public purposes would be extensive enough to be entitled to a meniber of its own ; and the practical question is whether the residents in such territory would have to be disfranchised altogether, or whether they might be thrown into one of the electoral divisions of the State out of which the territory was carved. As regards Senate elections the answer must clearly be in the negative; the Senators for each State must be chosen by “the people of the State.” As regards elections for the House of Representatives the matter is not so clear. Members of that House are chosen by “the people of the Commonwealth,” which includes the people of the territories ; and although the mode of apportionment provisionally prescribed by sec. 24 does not provide for the people of a territory being counted in with the people of the State out of which the territory may have been carved, yet that mode of apportionment is alterable. Sec. 29 provides that “a division shall not be formed out of parts of different States ;” but there is no direct prohibition against including an area of federal territory in an adjoining electoral division. On the whole, it would seem that the residents of a federal territory which is too small to be allowed a member of its own in the House of Representatives, need not necessarily be disfranchised, but may, if the Parliament thinks fit, be included in one of the electoral divisions of “the people of the Commonwealth.”

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Alteration of limits of States. 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 alter474 the limits of the State, upon such terms and conditions as may be agreed

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.

HISTORICAL Notr. - Clause 4, Chap. VI. of the Commonwealth Bill of 1891 was as follows:

* The Parliament of the Commonwealth may, from time to time, with the consent of the Parliament of a State, increase, diminish, or otherwise alter the limits of a State, upon such terms and conditions as may be agreed to, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any State affected by it."

At the Adelaide session, 1897, the clause was adopted in substantially the same words. At the Melbourne session, it was verbally altered after the fourth report.

After the failure of the Convention Bill to poll the statutory number of votes in New South Wales, both Houses of the Parliament of that colony recommended (inter alia) “that better provision should be made against the alteration of the boundaries of a State without its own consent-namely, hy the protection afforded by clause 127 (sec. 128] as to the representation of States." Accordingly at the Premiers' Conference, 1899, it was agreed to amend the clause by inserting “and the approval of the majority of the electors of the State voting upon the question.”

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$ 474. “Increase, Diminish, or otherwise Alter."

The Federal Parliament is empowered to alter the limits of a State, subject to two conditions :-(1) The consent of the Parliament of the State, and (2) the approval of the majority of the electors of the State voting upon the question. The second condition was not in the section as framed by the Convention. It was inserted on the recommendation of the Conference of Premiers pursuant to one of the joint resolutions passed by both Houses of the Parliament of New South Wales ; and it is not quite clear whether it in any way affects other sections by which the limits of States may be altered. For instance, sec. 111 empowers the Parliament of a State to surrender any part of the State to the Commonwealth ; secs. 121 and 124 empower the Federal Parliament to form a new State by the separation of territory from a State, or by the union of States or parts of States, with the consent of the States affected. Is the consent of the electors required in any of these cases ?

It is to be noticed that the section is worded, not as a limitation of powers elsewhere conferred, but as an additional and substantive power. "The Parliament of the Commonwealth may,” subject to certain consent and approval, alter the limits of a State. It seems, therefore, to refer to a class of cases not included in any other powers of altering limits.

A limit is, strictly speaking, a boundary line ; and a line cannot be "increased or diminished” except in length. But the word is also used in a secondary sense, to denote “the space or thing defined by limits." (Webster, Internat. Dictionary.) In this sense, increasing or diminishing the limits of a State means altering the boundaries of a State so as to increase or diminish its territory.

The limits of a State could be increased by the addition of a part of another State or by the annexation of a Federal territory. The limits of a State could be diminished by taking from it country along its border, and giving it to another State or transferring it to the Commonwealth. The limits of a State could be altered without increasing or diminishing them, as for instance by a mutual rectification of boundaries, or by an equal exchange of strips of country by two adjoining States. Sec. 123 could receive a reasonable construction by confining its operation to the modification of boundaries of States by cession and acquisition, giving and taking, which are within the possible mischief intended to be guarded against. What was in the minds of those who advised and framed the amendment was to make more adequate provision to guard against the possible taking of country from one State and transferring it to another ; such as for example the annexation of Riverina to Victoria.

The limits of a State are clearly diminished when its Parliament consents to a new State being formed by a separation of territory from the State (secs. 121 and 124); and also when its Parliament surrenders to the Commonwealth a part of the State along its boundary (sec. 111). On the other hand, the surrender of an internal area might be made without diminishing or altering its limits. But it can hardly be contended that section 123 operates as a restriction of, or condition on, the exercise of the independent powers conferred by sec. 111, or by secs. 121 and 124. It contains not the slightest allusion to the surrender of territory to the Commonwealth, or the establishment of new States; and it purports, not to restrict those powers, but to confer an additional power.

Even as confined to the adjustment of boundaries between States, the section embodies an extraordinary limitation on the power of the State Parliaments. Hitherto, under the Colonial Boundaries Act, 1895, the Queen has had power to alter the boundaries of any of the Australian colonies with the consent of the colony-i.e., with the consent of the Parliament of the colony. Accordingly, adjustments of boundaries between colonies could be arranged between the Parliaments of the colonies, and then effected by Order in Council. Under this section, however, the consent of the Parliaments of the two States concerned must be supported by a Referendum in each of those States. This provision is an invasion of the principle, recognized by the Convention,

that the Constitutions of the States are not interfered with except so far as is absolutely necessary. In the case of an amendment of the Federal Constitution involving an alteration of the limits of a State, the requirement that a majority of the electors of the State should consent is appropriate enough, as the electors are the ratifying body ; but this section deprives the State Parliaments, without apparent justification, of an existing legislative power.

Formation of new States. 124. A new State may be formed*75 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.

UNITED STATES.-But no new State shall be formed or erected within the jurisdiction of any

other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the

Congress.-Const., Art. IV., sec. 3, sub-s. 1. HISTORICAL NOTE.-Clause 5, Chap. VI., of the Commonwealth Bill of 1891 was as follows:

A new State shall not be formed by separation of territory from a State without the consent of the Parliament thereof, nor shall a State be formed by the union of two or more States or parts of States, or the limits of a State be altered, without the consent of the Parliament or Parliaments of the State or States affected."

At the Adelaide session, this clause was adopted verbatim.

At the Melbourne session, Mr. Walker suggested that to meet the case of Northern and Central Queensland, the power which the Queen then had to subdivide that colony should be reserved (see Imperial Acts 5 and 6 Vic. c. 76, sec. 51 ; 13 and 14 Vic c. 59, sec. 32 ; 18 and 19 Vic. c. 54, sec. 7 ; 24 and 25 Vic. c. 44, sec. 2). (Melb. Conv. Deb., pp. 669-70.) At a later stage, Mr. Walker moved the insertion of the following new clause :

“If the colony of Queensland adopts this Constitution, or is admitted as a State of the Commonwealth, nothing in this Constitution shall be taken to impair any right which the Queen may be graciously pleased to exercise by virtue of Her Majesty's royal Prerogative, or under any statute, in respect of the division of Queensland into two or more colonies ; but so that the Commonwealth shall retain the powers conferred on it by this Constitution to impose terms and conditions in respect of the establishment of any such colony as a State.”

It was feared, however, that in the eyes of a large section of the inhabitants of Queensland this clause would be unwelcome, and at Mr. Barton's suggestion Mr. Walker withdrew the clause in order that the Queensland Government might be consulted. This was done, with the result that the l'remier of Queensland telegraphed to the effect that the proposed clause would be likely to injure the prospects of Federation in Queensland ; though the Presidents of the Northern and Central Separation Leagues telegraphed their support. The proposed new clause was negatived. (Conv. Deb., Melb., pp. 1690-1702, 2398-2400.) The clause was recast before the first report, and a verbal alteration was made after the fourth report.

$ 475. "A New State May be Formed.”

Section 121 empowers the Federal Parliament to establish new States without indicating the country out of which they are to be formed or the people whom they are to include. In the Notes to sec. 122, we have indicated the probable intention of the Constitution to authorize the establishment of new States out of certain classes of Federal territories. We now come to sec. 124, which does not contain a fresh grant of

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