The Secretary, Home and Territories Department, forwards the following memorandum for advice:

I am directed to invite your attention to the provisions of section 10 of the Northern Territory Acceptance Act 1910 and to request the favour of your advice as to the extent, if any, to which the power of the Commonwealth to deal with pastoral leases granted under South Australian Acts prior to the transfer of the Territory to the Commonwealth is limited by that section or other sections of the same Act.

In particular the Minister is desirous of advice as to whether it would be competent for the Commonwealth to enact an Ordinance altering the conditions of leases granted under the South Australian Acts referred to, in the direction of:

1. increasing the rentals of such leases;
2. varying the periods fixed for the reappraisement of rentals;
3. taking power to resume portions of the lands held under such leases for the purposes of closer settlement; and
4. altering the conditions of the leases in regard to stocking and improvements.

It may be explained that the Minister has in view the passing of an Ordinance enabling him to:

1. increase the rentals derived from the pastoral leases concerned;
2. resume and subdivide for purposes of closer settlement portions of the lands held under such leases; and
3. lay down uniform lease conditions which shall apply to all leases in the Northern Territory.

If the law will not permit of these proposals being carried out, the Minister would be glad to be advised as to whether it would be competent to introduce a system of differential taxation, applying to the Northern Territory only, and having for its object the compelling of lessees to themselves subdivide their holdings.

As the question of the future land policy of the Northern Territory is now under the consideration of the Government, the favour of early advice on the points mentioned would be very much appreciated.

Section 10 of the Northern Territory Acceptance Act 1910-1919 reads as follows:

All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall continue to be held from the Commonwealth on the same terms and conditions as they were held from the State.

It is clear, I think, that an Ordinance to increase the rentals derived from the pastoral lands mentioned or to alter the conditions on which such leases are held would be inconsistent with section 10 and would be to that extent invalid.

It would appear, however, that such leases were held from the State of South Australia subject to the right of the State to resume the land if the Parliament passed an Act for that purpose, and that the Commonwealth has the same powers in this regard as the State had.

I am of opinion, therefore, that an Ordinance could be passed providing for the resumption of such land for the purpose of closer settlement. As to this question, however, please see my opinion of 21 April 1914⁽¹⁾.

In regard to the last question asked, I am of opinion that it would be competent to introduce a system of differential taxation, applying to the Northern Territory only, and having for its object the compelling of lessees to themselves subdivide their holdings.

[Vol.19, p. 32]

(1) The opinion of 21 April 1914 [Vol.12, p. 248], not published in Vol.1, was addressed to the Secretary, Department of External Affairs and, formal parts omitted, reads:

'Before preparing a draft of the Ordinance as asked for in your letter of 1st instant I desire to point out that in my opinion a difficulty is caused by section 10 of the Northern Territory Acceptance Act 1910. That section is as follows:

"All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall continue to be held from the Commonwealth on the same terms and conditions as they were held from the State".

The conditions, as to resumption, upon which estates in the Northern Territory were held at the time of the acceptance of the Territory by the Commonwealth are contained in the Northern Territory Land Amendment Act 1901, section 2, which provides inter alia that after the passing of that Act the Governor shall not resume possession of any leased land except for the purposes contained and set forth in sub-section (1) of section 54 of the Northern Territory Land Act 1899, or when the land is required for agricultural purposes.

The purposes set forth in the Northern Territory Land Act 1899, section 54 (1) are: public works, such as railways, tramways, roads,
bridges, public buildings, water conservation works, or the like, or sites for towns or cemeteries, or for mining or for park lands.

But for section 10 of the Northern Territory Acceptance Act 1910 it would in my opinion be possible to provide by Ordinance for resumption of leases for any purpose. In view of that section, however, I am of opinion that leases in general cannot be resumed for purposes other than those stated in the Northern Territory Land Amendment Act 1901, without legislation by the Parliament of the Commonwealth.

Of course under the Lands Acquisition Act 1906 (which is applied to the Territory by the Northern Territory (Administration) Act 1910, section 9), the Commonwealth may acquire any land required for any public purpose.

I shall be glad to receive further instructions'.