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BETWEEN THE LINES
By GEOFFREY SAWER
MANY Canberrans
will feel sorry
about the vote
against a new State
of New England, if
only because of a
fellow-feeling for
our old friend,
Ulrich Ellis.
Ulrich, the former sec-
retary of the late Earle
Page and long-time
Country Party stalwart,
left Canberra some years
ago to devote his whole
time to the New England
movement, and I would
dearly have loved to be
able to welcome him as
the first Premier or Gov-
ernor of his adopted New
State.
Students of govern-
ment at the infant ANU
had a particular regard
for Ulrich, because he
was one of the few prac-
tising party men who
would come along to our
seminars and talk practi-
cal sense about what
!actually happens, instead
of repeating propaganda
cliches.
But, disregarding the
sympathies due to old
friendship, one cannot be
very surprised at the fail-
ure of last Saturday's
referendum.
Failure it certainly is,
irrespective of the final
details, because the scep-
tical State and Common-
wealth Parliaments could
not be expected to act
unless the vote showed
both a substantial major-
ity for the area as a
whole and, at the worst,
only a fairly even bal-
ance of opinion in New-
castle. Instead, there is
at best an even balance in
the area as a whole and
a decisive majority
against in Newcastle.
It's pretty obvious that
a vote of the whole of the
people of New South
Wales would now show a
majority, probably a large
majority, against a New
State.
Some of the New Eng-
landers have urged that a
vote of the whole State is
unnecessary. True, Sec-
tion 124 of the Federal
Constitution, dealing spe-
cifically with the creation
of new States out of ex-
isting States, doesn't re-
quire a referendum of
the whole State. Indeed,
it doesn't require a refer-
endum even in the area
to be affected.
But, in the first place,
Section 124 does require
the consent of the State
Parliament, which is
quite entitled to take the
view, as a matter of
policy, that the people of
the whole State should be
consulted.
And, secondly, Section
123 of the Constitution
require a referendum on
proposals to alter the
boundaries of a State.
The few constitutional
experts who've dealt with
this question say, with
some doubts, that these
two sections are indepen-
dent of each other, so
that creating a new State
under Section 124
doesn't require a refer-
endum merely because it
will incidentally alter
State boundaries.
But when you consider
the long and difficult
negotiations, and the ex-
pensive administrative
action, which setting up a
New State would require,
can the Governments and
Parliaments of New
South Wales and the
Commonwealth reason-
ably be asked to take any
risks with doubtful ques-
tions of constitutional in-
terpretation concerning
which there is absolutely
no authoritative guidance
or precedent?
Only by complying
with both Sections 123
and 124 could we be sure
that the ultimate result
will stand up to judicial
scrutiny.
It must be galling for
the New Staters to have
to cope with what they
probably think are legal
pedantries, resulting from
one of many examples of
sloppy drafting in the
Federal Constitution.
But they also have to
cope with more substan-
tial difficulties. Earle
Page himself, one of the
earliest saints in the New
England pantheon, saw
clearly — at least in his
younger days — that pro-
posals for New States
ought to go along with
proposals for a consider-
able increase in Federal
power. But even Page,
for all the political in-
fluence he exerted from
1923 on, never succeeded
in working out a method
by which New State pro-
posals, and proposals for
increasing Common-
wealth powers, could be
put simultaneously, be-
cause parties favouring
one nearly always op-
posed the other.
It's become a natural
law of Australian politi-
cal behaviour that the
electors always vote no at
a referendum, unless vot-
ing no involves shooting
Santa Claus, but that
gentleman's fate was not
clearly involved last Sat-
urday. Will the Santa
Claus proviso to the gen-
eral principle be in
operation when the
Nexus-Aboriginal Powers
referendum comes around
on May 27?
Returning to the Page
picture of more regions
and a stronger centre
which, I think, was also
the picture which Chifiey,
Dr Coombs and others
would have liked to de-
velop in 1945-49, and
ignoring the patent fact
that Australia is constitu-
tionally speaking the
frozen continent, is there
still something in that
general notion?
The main difficulty —
not seen either by Page
or Chif — is that the im-
portant differences now
are not "regional" in an
older sense at all. They
are qualitative differences
between kinds of living.
Broadly, we have the
cities against the country-
side.
You see this most
clearly in America — the
continuous city from
Boston in the north to
Atlantic City in the
south, including such
episodes as New York, as
against a decayed rural
hinterland.
But even in Australia
it's clear that Newcastle is
simply the most northern
part of a "conurbation",
in the fashionable jargon,
which begins now with
Nowra in the south and
includes the episode of
Sydney.
Similarly, from Gee-
long to Frankston along
the shores of Port Phillip.
Fitting this sort of
"region" into a constitu-
tional structure is much
more difficult than fitting
in the rural-urban "New
State" which Page and
Chif had in mind. Urban
areas need a high degree
of administrative decen-
tralisation, but I doubt
whether they need a sep-
arate system of law as
between man and man.
I doubt whether the
critical percentage of
alcohol in the blood for
purposes of traffic law
should be .05 in Victoria,
.08 in Tasmania and .15
in WA; probably it ought
to be .10 per cent every-
where. On the other
hand, it may well be that
a dirty book in Lismore
is not a dirty book in
Kings Cross. How do
you translate these differ-
ences into constitutional
terms?
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