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Chapter VI. New States.
121. New States may be admitted or established
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.
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I have no idea if the sweaty men in the basements of the Sydney and Melbourne Town Halls ever assumed that Australia would be like the United States and just keep on adding new states willy-nilly thither and yon but Section 121 has never even once been triggered. Since Federation, the Six Colonies which became states; being New South Wales, Victoria, Queensland, Tasmania, South Australia and Western Australia, are all that there have ever been. Maybe they thought that New Zealand would change its mind but when 1904 happened and New Zealand had its status changed to a dominion in its own right, then that possibility faded forever. Maybe they thought that Fiji or Papua New Guinea would sign up but that never happened either.
Section 121 is still the avenue whereby the Northern Territory may become a state but not the Australian Capital Territory because of other provisions in this Constitution.
With reference to those words "including the extent of representation in either House of the Parliament, as it thinks fit", I think that this is the vehicle which should be pursued to achieve the ends of the Uluru Statement From The Heart.
Section 121 allows for the admission of new States to the Commonwealth as it (the Parliament) thinks fit. When the Parliament thinks that anything is fit, it passes simple legislation. There is no need for a referendum because the terms of the Constitution aren't being changed and subject to the next three Sections, there wouldn't be any change to the existing states because of territory.
If First Peoples (and I use that term deliberately because this includes all Aboriginal peoples, Torres Straight Islanders, Tasmanian Aboriginal peoples, and peoples from islands not otherwise mentioned), are admitted as a 'virtual' state, which isn't dependent on territory but rather as a single electorate covering all First Peoples, the this satisfies all terms of the Uluru Statement From The Heart elegantly. The request that Aboriginal people should have a say on legislation that directly affects them, would not only be addressed with at least Six Senators which would be justly due but specific details can be worked out through the usual process of Senate Select Committees.
This would also finally address the implications that Mabo v Queensland No.2 (1992) set up. The underlying injustice which the Uluru Statement quite rightly tells the truth about, is the as yet unadmitted fact that First Peoples had and retained their original sovereignty and that this was never surrendered or ceded. In this respect, this is like the several State Crowns which other provisions of this Constitution tacitly admit exist, through the saving of constitutions, laws, court decisions, and governors' rights.
This would pose a new problem for First Peoples; namely, do they want to be Federated into the Commonwealth? In practical terms its going to be nigh on impossible to undo the past but through Treaty, Truth Telling and Active Reconciliation, then something approaching a just arrangement could be arrived at.
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122. Government of territories
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.
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The most obvious places where Section 122 applies, is the Australian Capital Territory, the Northern Territory, and Jervis Bay Territory. For a very brief period of time when the Northern Territory was subdivided, this also applied to Central Australia Territory as well.
The big territories of the ACT and NT, get members of the House and two Senators due to the operation of various acts. Jervis Bay Territory has this curious standing of being included in the House seat of Eden-Monaro and NSW when it comes to Federal representation, even though the laws of the ACT apply in JBT. For a very long time, the ACT and NT had no Senators at all and so were actively excluded from the upper house. With no voice in the house of review, they couldn't even voice their displeasure at what might happen to them. This all looks too familiar in the light of Section 121.
Section 122 also tacitly admits where the various Crowns that make up the Commonwealth actually reside. The territories, which do not have their own sovereignty, can in fact be directly ruled from Canberra and there isn't a thing that they can do about it. There isn't even the faint veil of Section 109 protection which says that the Commonwealth while having supremacy at least doesn't try and interfere in the affairs of the lesser Crown, because in the case of the territories, there is no lesser Crown.
The Commonwealth in its most heavy-handed and patriarchal periods, has made law such as the Northern Territory intervention, or making policy decisions to do with uranium mining in the Northern Territory, seemingly without any reference to or consideration for anything that the territories might wish. There have been attempts to curb the power of the Federal Government with instruments such as the Restoring Territory Rights Bill but as this is mere legislation and not a constitutional impediment on Federal power, anything that is passed can be repealed just as easily.
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123. Alteration of limits of States
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.
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I am unsure if the invention of the Australian Capital Territory in 1913 warranted a referendum of the people of the state of New South Wales, who then had a hundred square mile hole blown out of it.
Section 123 has as far as I know, never been invoked because of border disputes between states and I suspect that given the experience of South Australia and Victoria who had arguments about where the Surveyors-General drew their lines, nobody is keen to go through those arguments again. There are some weird oddities which occur at the intersection of South Australia, Victoria and New South Wales, where the Murray River forms a border.
The only real conditions where I can think of where Section 123 might be invoked, is if there was a border town whose residents felt that they might be better served by changing states. Maybe this might occur along the NSW/Queensland border or perhaps along the NSW/South Australian border but as for the other massive border which cross the continent, there's not many people who live that deep in the outback who would have that kind of dispute.
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124. Formation of new States
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.
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Section 124 assumes that a state will be bound by area and not as a 'virtual state' which I would have proposed for First Peoples under Section 121. The assumption that states are and would be bound by area, is reasonable. Statehood movements for New England in northern New South Wales and Far North Queensland which alternatively might be called Capricornia, have appeared from time to time but they don't seem to progress very far.
The consent of the Parliaments thereof, and the interaction with Section 123 which calls for the approval of the majority of the electors of the State voting upon the question, has never been attempted as far as I know and would be a big hurdle to overcome. In the case of the subdivision of the Northern Territory into the two parts of the Northern Territory and the Central Australia Territory, Section 124 was never pursued as this section only applies to the States.
Ironically the biggest opposition to the formation of new States would likely be the people who would be in the new State. If we imagine that New England separates from New South Wales, then they would also separate themselves from the state budget of New South Wales. I do not actually know if the wealth condensation which has occurred in Sydney actually subsidies the roads, water and sewerage, railways, et cetera of country New South Wales but I can guarantee that if New England were to demand separation and win it, then those subsidies would cease immediately. This scenario would likely play out for Far North Queensland, Riverina, and any other proposed state.
It is pretty obvious that in order to form a by state "formed by separation of territory from a State", that it would need referenda passed in the relevant states affected. If my proposal for a virtual First Peoples' State was enacted, then the terms wouldn't actually be the separation of territory since the whole entire of the Commonwealth would be take as a common electorate. Since the terms requiring a referendum would not be met, then no referendum would need to be held on this basis.
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Chapter VII. Miscellaneous.
125. Seat of Government
The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney.
Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.
The Parliament shall sit at Melbourne until it meet at the seat of Government.
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The Australian Capital Territory was proclaimed in 1911; with the city of Canberra being officially proclaimed in 1913. The nearest point of the ACT is about 140 miles away in a straight line from the obelisk in Sydney. The actual area of the ACT is about 910 square miles; which is far bigger than the 100 square miles laid out in the Constitution.
For the first 20 odd years of the Australian Parliament, it tended to sit in the Victorian Parliament building; with the two houses in their respective counterpart's chambers. I imagine that when the move to Canberra happened in 1927, that parliamentarians were happy not to share premises with someone else but not all that overjoyed with the smallness of the building that they'd been placed into. Parliament House I (1927-1988) was intended to be a library but for not quite sixty years, the increasingly cramped quarters would have to do.
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126. Power to Her Majesty to authorise Governor-General to appoint deputies
The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.
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Section 126 is arguably the most dangerous section in the Constitution. It seems harmless enough because I can not think of anyone who actually has been appointed as Deputy Governor-General but just because it looks harmless, does not make it so.
Section 126 empowers the Governor-General to appoint literally "any person, or any persons jointly or severally" to any "powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen". Think about this. This is the capacity of the Governor-General to appoint literally "any person" to any power that he thinks fit.
There are no qualifications stipulated. There are no barriers or legal disabilities placed upon either the Governor-General or their Deputy. Presumably this includes all of the Reserve Powers mentioned in the Constitution, which includes the full and express use of the military for any reason; as well as any other plenary unfettered power that the Governor-General can dream up.
If Section 126 isn't the almost express approval of the Constitution for the Governor-General to appoint and install a military junta without any kind of brace, bit, fetter, or restraint, then I don't what is.
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