Opinion Number. 225



Key Legislation

CONSTITUTION, ss. 121, 122, 123: AUSTRALIAN WASTE LANDS ACT 1855 (IMP.), s. 5

The Prime Minister

These papers are referred by the Prime Minister for advice as to the possible modes

of annexation of Norfolk Island to the Commonwealth, and their consequences.

Norfolk Island was originally part of the Colony of New South Wales.

The Imperial Act 6 & 7 Vic. c. 35 empowered the Queen by Letters Patent to sever Norfolk Island from New South Wales and annex it to Van Diemen's Land, and this was done, as from 29 September 1844, by Letters Patent dated 24 October 1843.

The Australian Waste Lands Act 1855 (18 & 19 Vic. c. 56), section 5, empowered the Queen by Order in Council to separate Norfolk Island from Van Diemen's Land, 'and to make such provision for the government of Norfolk Island as may seem expedient'.

Accordingly, by Order in Council dated 24 June 1856 (S.R.O. Rev. Vol. 5, p. 129) it was ordered that from the date of the proclamation of the Order in N.S.W., Norfolk Island should be separated from Van Diemen's Land and be a separate settlement, and provision was made for its government.

That Order in Council was repealed by an Order in Council (S.R.O. 1897, p. 504) dated 15 January 1897, made under the Australian Waste Lands Act 1855, which- after reciting that, 'it is expedient that other provision should be made for the government of Norfolk Island, and that, in prospect of the future annexation of that island to the colony of New South Wales, or to any federal body of which that colony may here after form part, in the meantime the affairs of the island should be administered by the governor of New South Wales as herein provided'-provides for the administration of the affairs of the Island accordingly.

Norfolk Island is therefore a separate settlement, for the government of which the King may provide by Order in Council under the Act of 1855, and which is at present administered by the Governor of N.S.W. under the Order in Council of 1897.

The possible modes of annexing Norfolk Island to the Commonwealth appear to be:

  1. to make it a territory placed by the Queen under the control of and accepted by the Commonwealth-or otherwise acquired by the Commonwealth (Constitution, sec┬Čtion 122);
  2. to place it within the limits of a State of the Commonwealth (Constitution, section 123);
  3. to admit it as a new State of the Commonwealth subject to such terms and conditions as Parliament imposes (Constitution, section 121).

The Island could apparently be made a territory under the control of the Commonwealth by the joint operation of an Imperial Order in Council and a Commonwealth Act. The effect of this would be that the Parliament could make laws for its government, and that it would be a dependency of the Commonwealth, not a part of the Commonwealth itself, and the general laws of the Commonwealth would not be in force in the Island to any further extent than the Parliament thought fit to provide- nor would it necessarily be within the Commonwealth tariff fence. In other words, it would be in the same relation to the Commonwealth as British New Guinea will be if the Papua Bill(1) is passed.

The Island could be placed within the limits of a State by the procedure provided by section 123 of the Constitution-in conjunction with an Imperial Order in Council- and the effect would be that it would become part of the State and of the Commonwealth.

[Vol. 5, p. 89]

(1)Enacted as the Papua Act 1905.

(2)This opinion was endorsed 'agree. Forward to the Honourable the Prime Minister.' by Mr lsaacs,Attorney-General.