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105.

PUBLIC RECORD OFFICE

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Reference :-

།། ༄། ། ། :། .................. C.O. 885

No. 48.

(NEW SOUTH WALES.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, January 2, 1861.

MY LORD DUKE,

We were honoured with your Grace's commands, signified in Sir Frederic Bogers' letter of the 6th October last, in which he stated that he was directed by your Grace to request that we would take into our consideration the accompanying draft of a warrant for detaching the territories therein described from the Colony of New South Wales, and annexing them to the Colony of South Australia.

Sir Frederic Rogers stated that in our joint report of the 28th September 1859, we expressed the opinion that by force and effect of a proviso contained in the 46th section of an Act passed by the Legislature of New South Wales, and scheduled in the Impe- rial Act, 18 & 19 Vict. cap. 54., it was competent to the Crown to exercise its prero- gative right of detaching from New South Wales this part of the Colony. But our attention was not then called to the 51st section of 5 & 6 Vict. cap. 76., which, after authorizing Her Majesty to alter the boundaries of New South Wales by Letters Patent, goes on to provide "that no part of the territories lying to the southward of “the 26th degree of south latitude in the said Colony of New South Wales should, by such Letters Patent as aforesaid, be detached from the said Colony." That in the Act 6 & 7 Vict. cap. 35. it was recited that on account of this provision it was doubted whether Norfolk Island (which is south of the 26th parallel of south latitude) could be severed from New South Wales without authority of Parliament.

Sir Frederic Rogers pointed out, first, that the provisions of the local Act do not positively authorise the Crown to detach territory from New South Wales, but only negatively declare that nothing therein contained should prevent it.

Secondly, that it is not now proposed to act by Letters Patent, but by warrant.

Sir Frederic Rogers requested that we would inform your Grace, first, whether, in our opinion, the annexed warrant would, notwithstanding the Acts of Parliament above referred to, be effectual for detaching the territory referred to from New South Wales.

And, secondly, whether the same warrant would be effectual for annexing these territories to the Colony of South Australia, which was constituted under the Act of Parliament 4 & 5 Will. 4., cap. 95.

Sir Frederic Rogers observed that, if we should be of opinion that the warrant would be ineffectual for either of these purposes, he was to request our opinion whether the proposed severance and annexation could be effected without an Act of Parliament, and if so, by what form of instrument.

In humble obedience to your Grace's commands, we have carefully considered the above-mentioned papers, and have the honour to

Report

That in consequence of the 51st section of the 5 & 6 Vict. c. 76., we are of opinion that the proposed warrant will not be effectual for detaching the territory in question from New South Wales, or annexing it to the Colony of South Australia, and that the proposed severance and annexation cannot be effected without an Act of Parliament.

We have, &c.

RICHARD BETHELL. WM. ATHERTON.

His Grace the Duke of Newcastle.

(Signed)

16278.-589. 25-9/86.

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