Prior to 6 July 1863, what is now known as the Northern Territory was part of the State of New South Wales.

The Australian Constitutions Act 1842(5 & 6 Vic. c. 76), section 51 empowered the Queen, by Letters Patent, to separate from New South Wales any part of the territory of that colony lying to the northward of 26 degrees south latitude, and to erect the same into a separate colony or colonies.

The Queensland Government Act 1861⁽¹⁾ (24 & 25 Vic. c. 44),section 2 em-powered the Queen to annex to any Australian colony any territories which, in the exercise of the above powers, might have been erected into a separate colony; with a proviso that it should be lawful for the Queen,in such Letters Patent, to reserve the power of revoking or altering the same.

By Letters Patent of 6 July 1863, in pursuance of the above powers, it was declared that Her Majesty did thereby 'annex to Our said colony of South Australia, until We think fit to make other disposition thereof the territory now known as the Northern Territory; and it was further declared by the same Letters Patent that 'We do hereby reserve to Us, Our heirs and successors full power and authority from time to time to revoke, alter, or amend these Our letters patent as to Us or them shall seem fit'.

It appears clear that by these Letters Patent the Northern Territory became part of the State of South Australia, although power was reserved to the Queen to detach it again from that colony.

That was the position when the Commonwealth Constitution Act was passed by the Imperial Parliament. Covering clause 6 of that Act defines the States. It says:

'The States' shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called 'a State'.

One effect of this clause is to define the colonies which were competent to join the Commonwealth as States. One of the units which was thus enabled to join the Commonwealth was the colony of 'South Australia, including the northern territory of South Australia'.

South Australia accepted the Constitution by a referendum (which, by the way, extended over the Northern Territory). Covering clause 3 of the Commonwealth Constitution Act enables the Queen to declare by proclamation that after a day appointed 'the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth'. Proclamation was made accordingly, including all six States. South Australia thus became a State of the Commonwealth; and the State of South Australia clearly, in accordance with covering clause 6, includes the Northern Territory.

That being so, the Northern Territory is a part of the State of South Australia; and under section 111 of the Constitution the Parliament of South Australia may surrender that part of the State to the Commonwealth; and upon such surrender and its acceptance by the Commonwealth, that part shall become subject to the exclusive jurisdiction of the Commonwealth.⁽²⁾

[Vol. 7, p. 176]

(1) Australian Colonies Act 1861 (Imp.).

(2) This opinion was published in Commonwealth of Australia, Pari. Papers 1909, Vol. II, p. 1948.