CO885-(15-16) — Page 667

R

3013

No. 172.

(AUSTRALIA.)

COLONIAL OFFICE to LAW OFFICERS.

[Mode of transfer of Norfolk Island to the authority of the Government of the Commonwealth of Australia.]

GENTLEMEN,

Downing Street, 13 February, 1914.

I AM directed by Mr. Secretary Harcourt to request you to be so good as to favour him with your advice on the subject of the mode of transfer of Norfolk Island to the authority of the Government of the Commonwealth.

It

2. I am to enclose copy of an Act which has been passed by the Parliament of the Commonwealth of Australia, No. 15 of 1913, entitled “ An Act to provide for the acceptance of Norfolk Island as a territory under the authority of the Common- wealth, and for the government thereof." In the preamble to that Act will be found a full recital of the circumstances affecting the government of the Island. is now administered by the Government of the State of New South Wales under the terms of the Order in Council of the 18th of October, 1900 (a copy of which is enclosed), and His Majesty's Government have agreed with the Governments of the Commonwealth and of New South Wales that it is desirable that the Island should be placed under the authority of the Commonwealth.

3. The question, however, arises whether, under the existing legislation, His Majesty has the power to take this step. The legal position of Norfolk Island has formed the subject of previous references to the Law Officers in 1896 and 1902, and I am to enclose copies of the opinions* given by your predecessors on those occasions. 4. It will be seen that in 1896 the Law Officers of the Crown considered that Norfolk Island could not be annexed to the Colony of New South Wales by Order in Council, and that the Act 18 and 19 Vict., Chapter 56, Sec. 5, contemplated that Norfolk Island should romain a Crown Colony governed under the direction of the Queen in Council. In 1902, however, the Law Officers advised that it would be possible to annex the Island by Order in Council to the Commonwealth of Australia. The question of the transfer of the administration to the Commonwealth was not discussed, but it will be seen that the Law Officers advised that the Island was entirely at the disposal of the Crown in view of the Order in Council made under Section 5 of the Act 18 and 19 Vict., Chapter 56.

5. From the reasoning of the Law Officers in this case it would appear to Mr. Harcourt that there is no objection to the placing of the Island under the authority of the Commonwealth, and I am to invite your attention to the provisions

of Section CXXII. of the Commonwealth Constitution, which provides that the Par- liament may make laws for the government of any territory placed by the King under the authority of, and accepted by, the Commonwealth.

6. I am accordingly to transmit the draft of an Order in Council placing the Island under the authority of the Commonwealth, which has been drawn up on the model of the Letters Patent dated 18th March, 1902, for placing British New Guinea under the authority of the Commonwealth, a copy of which I am to enclose.

I am to explain that the form of procedure by Order in Council is adopted as the power to be exercised is the statutory authority given by Section 5 of the Act 18 and 19 Vict., Chapter 56, whereas in the case of Papua no such statutory authority

existed.

7. Mr. Harcourt would be glad if you would take into consideration the facts mentioned in this letter and the papers which accompany it and will be so good as to advise him

(1) Whether it is competent for His Majesty, by Order in Council under Section 5 of the Act 18 and 19 Vict., Chapter 56, to place Norfolk Island under the authority of the Commonwealth; and

Vol. V., Nos. 119 and 123, and Vol. VI, No. 170.

(1212-2.) Wt. 124-872, 25. 6/14. D & S. G. 1.

PUBLIC RECORD OFFICE

C.O.885

Reference :-

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO

2