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PUBLIC RECORD OFFICE

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C.O.885

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14 PUBLIC RECORD OFFICE; LONDON

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The Fourteenth Article does not, in our opinion, secure to foreigners the right of residence unless they have been convicted, after trial in court, of a breach of the law, but leaves it open to the Republic summarily to expel any foreigner contravening the law, If he were expelled when in fact he had conformed to the law, it would form the subject of diplomatic representation.

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But the Act of the Volksraad now before us goes much further, and provides that any foreigner who is dangerous to public peace and order can be banished by the Executive of the Republic.

Circumstances may well exist in which the preserve of the particular foreigner might be rightly considered dangerous to the public peace and order, although he had conformed in every respect to the laws of the Republic. His position and influence might be such as to lead the Executive of the Republic to the conclusion that the public safety demanded his expulsion, although he was not himself charged with having broken the law. The Act now in question confers upon the Executive the right to expel any foreigner with regard to whom they have come to this conclusion, without requiring that they should also be satisfied that he has failed to conform to the law of the Republic.

The Act is, therefore, in our opinion, of itself an infraction of the Convention. The enactment of such a measure must occasion a sense of insecurity among the foreigners in the Transvaal, and constitutes a breach of the Fourteenth Article.

(2.) An order made under the Bill, if it is enacted, banishing a foreigner, or ordering him to reside in a certain place, or prohibiting him from residing in a certain place, would, in our opinion, be an infringement of the Convention, if the foreigner in question had in fact confirmed himself in all respects to the laws of the South African Republic. The British Government are not, in our opinion, entitled to insist upon the lecision of a competent court of justice as a condition precedent to the right of the Republic to expel a foreigner who, in fact, has broken the law; his expulsion in such case may be effected simply by the action of the Executive. But the expulsion of the foreigner who has conformed to the law, merely on the ground that his presence is regarded as dangerous to the public peace and order, would be an infringement of the Convention.

(3.) It is, in our opinion, desirable that Her Majesty's Government should object to the enactment of the Bill, or, if it has become law, should insist on its repeal or amendment so as to bring it into conformity with the Convention.

The mere existence of such a law must interfere with the settlement of foreigners in the Transvaal, and with the business and social arrangements of those who are already there,

Although, as a matter of strict right, Hor Majesty's Government are not, in our opinion, entitled to insist on conviction by a court of law as a necessary preliminary to expulsion, it would, we think, be much more satisfactory, and much more likely to as to confine the right of prevent friction in future, if the law were amended so expulsion to the case of a foreigner legally convicted.

We further think that Her Majesty's Government should reserve the right of objecting to any action taken under the provisions of the Bill in question.

We have, &c.

The Right Hon. Joseph Chamberlain, M.P..

&c.

&c.

&c.

RICHARD E WEBSTER. ROBERT B. FINLAY.

22645.

SIR,

No. 119.

(NORFOLK ISLAND) (NEW SOUTH WALES).

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, October 31, 1896.

We were honoured with your commands, signified in Mr. Bramston's letter of the 7th instant, stating that he was directed to ask our advice upon the following

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matter.

That Norfolk Island, which was situated in the Pacific some 900 miles E.N.E. of Australia, was formerly part of the Colony of Van Dieman's Land (now called Tasmania), but by 18 & 19 Vict. c. 56 § 5 it was provided "that it should be "lawful for Her Majesty at any time by Order in Council to separate Norfolk Island "from the Colony of Van Dieman's Land, and to make such provision for the government of Norfolk Island as might seem expedient." That on the 24th June 1856 an Order in Council was passed whereby it was provided that the Island should be a distinct and separate Settlement, the affairs of which, until further Order was made in that behalf by Her Majesty, were to be administered by a Governor who was to be for that purpose appointed by Her Majesty with the advice and consent of Her Privy Council.

That subsequent events had made it undesirable to continue this form of Government, and that it was proposed to incorporate the Island with the Colony of New South Wales, but that it was desired to arrange that the laws of the Colony should not extend to Norfolk Island, to which they were not suited in the present condition of that Island, and to give to the Governor of New South Wales in Council the power of making laws for the Island until the Colonial Parliament should otherwise provide. That by this means such laws of New South Wales as were suitable could be at once introduced, and from time to time could be added to as occasion required, or special laws applicable only to the Island could be enacted. But that the question had arisen whether such

an arrangement could be effected by Order in Council.

That it was presumed that the Island could be annexed to the Colony by Order in Council, and that the annexation would, if the Colony consented to it, be valid by virtue of the Colonial Boundaries Act, 1895, and Mr. Bramston was to enquire (1) Whether in our opinion this was correct. He was further to enquire (2) Whether the consent of New South Wales might be given by the Colonial Government, or required a vote of the Legislature. (3) Whether the power given to Her Majesty by 18 & 19 Vict. c. 56 to make provision by Order in Council for the government of Norfolk Island was still in existence and could be made use of to declare what laws should be in force in the Island when it should become part of New South Wales and to create special powers of legislation for making laws until the New South Wales Legislature should provide otherwise.

(4) That if this could not be effected by Order in Council whether it was competent to the Legislature of New South Wales by Act to declare that the laws of the Colony should not apply to Norfolk Island after annexation, and to provide a special mode of legislation for that Island.

We have taken the matter into our consideration, and in obedience to your commands have the honour to

Report-

1. That, in our opinion, Norfolk Island cannot be annexed to the Colony of New South Wales by Order in Council.

The power given to her Majesty by 18 & 19 Vict. c. 56. § 5 to make provision for the government of Norfolk Island does not, in our opinion, authorise the transfer of the power to make such provision from Her Majesty in Council to the Legislaturo of New South Wales, which would be the result of annexation. What the statute contemplates is that Norfolk Island should remain a Crown Colony governed under the direction of the Queen in Council, not that Norfolk Island should be annexed to another Colony.

We further think that the general power of Her Majesty to alter the boundaries of Colonies referred to in the Colonial Boundaries Act, 1895, cannot be relied on to justify the annexation even with the consent of the Colony.

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90536.--32. 25,-11/96.