WHAT WAS CLAIMED
Electoral boundaries are invalid because Clause 8 of the constitution says the Boundaries Act doesn't apply.
OUR VERDICT
False. The clause does not remove or invalidate state or electorate boundaries.
AAP FACTCHECK - Australia's federal electorates and state borders are valid under the constitution, despite social media claims.
Experts say the nation's founding legal document empowered parliaments to set electoral boundaries and it did not dissolve state borders.
The false claim is in a Facebook video in which a man questions why Home Affairs Minister Tony Burke has constituents before claiming that electoral divisions are invalid.
"Why has he got constituents? Why has he got an area? When clause eight of our Constitution says the Boundaries Act doesn't apply? You can't have a boundary, not electoral, nothing," the man says (timestamp six minutes and 56 seconds).
"You can divide this country up into states; all of those lines are imaginary on a document which shows the outline of this country."
However, the claim that electorates and state borders are invalid because "the Boundaries Act" does not apply under the constitution is false.
Anne Twomey, a professor emerita in constitutional law at the University of Sydney, described the claim as "absolute nonsense".
She said that Section 29 of the constitution empowers the federal parliament to legislate for electorates, including determining boundaries.
Section 123 covers altering state boundaries, she added.
Harry Hobbs, a legal expert at the University of NSW, said parliament exercised the power to set electoral boundaries through the Commonwealth Electoral Act.
This law sets out electoral divisions and establishes redistribution committees to ensure electorates remain roughly equal in population, Associate Professor Hobbs said.
Prof Twomey said the "Clause 8" referenced in the video isn't in the constitution itself, but part of the introductory provisions in the UK law that established the constitution called the Commonwealth of Australia Constitution Act 1900.
When contacted, the post's author confirmed to AAP FactCheck that he was referring to Clause 8 of that act.
The law effectively established Australia's federation under UK law.
It has nine clauses, the first eight of which are called "covering clauses", with the constitution itself set out in Clause 9.
Clause 8 did not remove or change any borders or electoral divisions, Prof Twomey said.
It merely clarified how an earlier UK law, the Colonial Boundaries Act 1895, would apply after federation.
The change meant that if the British monarch wanted to alter colonial borders in future, they would need consent from the Commonwealth, rather than from the individual colonies, as had been required under the 1895 law.
In other words, Prof Twomey said, it just changed who the Queen needed to get permission from to change state borders.
"Covering Clause 8 does not remove or affect existing boundaries of the Commonwealth or the States," she told AAP FactCheck.
Prof Twomey said that the process for changing state and national borders is set out in the actual constitution, which gives the Commonwealth parliament the power to do so under certain conditions.
Section 121 covers admitting new states, Section 122 clarifies accepting new territories and Section 123 covers altering state borders.
The latter section provides that state borders may be altered by the Commonwealth parliament passing a law with the approval of that state's parliament and a majority of its voters.
Assoc Prof Hobbs said the constitution established a federation of six states, not a dissolution of their borders.
Chapter 5 of the constitution, which he noted was titled "The States", contains 15 provisions dealing with state powers.
This includes Section 106, which explicitly preserves the colonial constitutions of each of the founding states.
"The states decided to join up into an indissoluble Commonwealth," Assoc Prof Hobbs told AAP FactCheck.
"At no point did they intend to, or were they trying to, dissolve themselves or dissolve their borders. They did not do that."
AAP FactCheck is an accredited member of the International Fact-Checking Network. To keep up with our latest fact checks, follow us on Facebook, Instagram, Threads, X, BlueSky, TikTok and YouTube.
