THE PEOPLES OF THE STATES UNDER THE AUSTRALIAN CONSTITUTION.

• Date: 01 August 2022
• Author: Arcioni, Elisa

CONTENTS I Introduction II Defining the Peoples of the States A Distinct State Peoples B Territorially Bounded Communities: Place and Home C Fungibility of State Identity II The Privileged State People A The Peoples of the States as Electors B The Peoples of the States at the Core of the Commonwealth III Resolving Federal-National Tensions: The Demotic State People A The Peoples in the States as People of the Commonwealth B Peoples of the States of the Commonwealth C Political State Peoples IV Conclusion I INTRODUCTION

Since March 2020, each Australian state has, at various times, enacted regulatory orders which have restricted travel into its jurisdiction in an effort to reduce the impact of the COVID-19 pandemic on its population. (1) Despite the rhetoric of 'we are all in this together', (2) legal restrictions were imposed with state residence as a criterion. (3) It therefore matters to which state one belongs, and where one lives within Australia. Our sub-national identities have become more important than at other times since Federation. We are identified as 'Victorians, 'Western Australians, etc, in addition to 'Australians, in a way which we usually associate with sporting codes rather than with how we can physically interact with fellow Australians.

In light of the renewed legal significance of where one lives within Australia, this article interrogates who the peoples of the Australian states under the Constitution are. (4) The Commonwealth of Australia was created by the federal union of the six Australian colonies and their peoples. Those colonies became states and the peoples of the colonies became the peoples of the states. Section 7 of the Constitution refers to the people of the states as those who directly choose Senators, and it is the same people who are referred to in s 24 as those who directly choose Members of the House of Representatives. The peoples in the states also have a privileged role in referenda under s 128 of the Constitution.

There is growing scholarly interest in membership of the Australian constitutional people as a whole--following cases before the High Court of Australia that have addressed who constitutes a 'belonger, as compared to who constitutes an 'alien' who can be deported. (5) However, the sub-national status of being a member of a state people has not received the same attention. This article sets out a fundamental doctrinal analysis of that status. I address the identity of the category 'people of the states' and explain how those peoples are at the core of the Australian constitutional people.

In Part II, I tackle the identity of the peoples of the states. Through an analysis of constitutional text and case law, we can see that the state peoples are territorially bounded, distinct and mutually exclusive communities. This is in parallel with the identity of the people of the colonies, who were the constitutional ancestors of the people of the states. The people of the states are defined in relation to state boundaries. State boundaries are significant in understanding how the system of representative government operates under the Constitution, with states and the peoples of the states represented as distinct entities in Parliament and in referendum result calculations. The way in which the people of a state are identified through residence reinforces the importance of state boundaries and, together with the default guarantee of free movement across state borders (albeit a freedom with limits), (6) supports the ability of individuals to exercise some autonomy in determining their state affiliation.

While state identity is significant, it is also complicated by the dual nature of 'the people' under the Constitution. The Constitution established a federal Commonwealth. Thus, two consequential questions arise in relation to the peoples of the states. First, how do the peoples of the states fit within the Commonwealth? Secondly, how can tensions be resolved when national and federal concerns collide? In relation to the status of the peoples of the states within the Commonwealth, in Part III, I argue that they are the core of 'the people'. This argument relies on a recognition that the identity of 'the people' under the Constitution is predominantly a demotic or political one. (7) Unlike some constitutional systems where the identity of 'the people' is based upon ethnicity or culture, the Australian constitutional identity is based upon the roles of 'the people' within democratic systems of government. We do not have constitutional commitments to a particular racial profile, despite our history of administrative and legal commitments to a 'white Australia'. (8) Instead, we have commitments to a protected franchise and freedom of communication to support 'the people' in their exercise of political participation. Once one accepts the political or demotic character of 'the people' under the Constitution, then, by considering the privileged roles of the peoples of the states in relation to representative government, it becomes clear that they are at the core of 'the people'. We can see them as the privileged people because, textually, they are recognised as the constitutional electors.

In Part IV, I turn to explore how the tensions between the national and federal identities of the people are likely resolved. A survey of High Court case law reveals that there are many indications of the unity of the Australian people and polity, and recognition of the new nation created by the Constitution federating the pre-existing colonies. At the same time, the High Court has adopted doctrines which are protective of the ongoing existence and functioning of the states as distinct polities, and has recognised exceptions to constitutional rules which on their face look like limitations on the power of states to privilege their residents over out-of-state residents.

The most recent example of the latter is the case of Palmer v Western Australia ('Palmer'). (9) Clive Palmer challenged the validity of Western Australia's border closure in response to the spread of COVID-19. (10) Palmer, a resident of Queensland, was prevented by the border closure from travelling to Western Australia, where he had business interests. He argued that there was therefore a contravention of s 92 of the Constitution. Section 92 states: 'On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States ... shall be absolutely free.' The High Court unanimously rejected Palmer's argument, accepting Western Australia's argument that the laws in question had the 'legitimate purpose of protecting the Western Australian population against the health risks of COVID-19'. (11) This case epitomises the tensions that exist when there is a national principle of free movement, as well as legitimate claims for state-specific regulation.

In Part V, I conclude and highlight the importance of recognising both national and federal elements in the identity of 'the people' under the Constitution.

II DEFINING THE PEOPLES OF THE STATES

In this Part, I address the identity of the peoples of the states and argue that they are distinct, territorially defined communities. This seemingly obvious conclusion is grounded in the text of the Constitution, (12) the ways in which the peoples of the states are represented as communities within the structures of representative government in the Constitution, and the significance of residence within the text and related case law.

The states are understood as territorially defined, and 'the peoples' of the states are likewise defined by their connections to specific territories. Covering cl 6 to the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 ('Constitution Act') defines the 'Original States' to include New South Wales, Queensland, Tasmania, Victoria, Western Australia and South Australia. Those states together formed the Commonwealth. (13) The text of the Constitution Act maintains the earlier colonial boundaries as state boundaries, subject to change only with the approval of the peoples of the relevant states. (14) Covering cl 8 of the Constitution Act states:

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. The consequence of this clause was that the internal boundaries of the Commonwealth could no longer be changed by the United Kingdom. The boundaries could only be changed through the mechanisms set out in the Constitution. (15) The mechanisms for changing the boundaries of any state require the consent of 'the people' of the relevant state--either directly through a referendum or indirectly through the approval of their representative state Parliament. (16) Therefore, the text of the Constitution assumes the states are territorially bounded. Thus, the peoples of the states can be understood as territorially bounded communities, with some power to determine their own constitutional identity through changes in the relevant territory.

Unlike the states, the peoples of the states are not defined within the covering clauses of the Constitution Act or the Constitution itself. (17) Instead, what we see in the constitutional text is that state boundaries are significant in determining who the people of a state are. I address the importance of territory by considering how the states and people of a state are represented as distinct entities in Parliament and in referendum calculations. Then, I address the significance of residence.

A Distinct State Peoples

The identity of the peoples of the states as distinct constitutional communities can be seen in the way in which the peoples of the states are represented as communities within the structures of representative government in the Constitution. The composition of the Senate is an obvious...