The Prime Minister asks to be advised on the points raised in the following extract from a letter received from the Premier of New South Wales on the subject of the proposed transfer of Norfolk Island to the Commonwealth:

Further, I am of opinion that section 122 of the Constitution, which provides for the Commonwealth making laws for government of a territory, was not intended to apply to a case where legislative and administrative control is being satisfactorily carried Out by part of the constitutional machinery of a State, and the Executive authority of that State, moreover, has not asked to be relieved of its responsibilities.

It may be further noted that the section referred to empowers the Parliament to make laws for the government of a territory, but I do not find any authority in the Constitution for the Governor-General legislating through the medium of ordinances.

As regards the first point, the facts as to the present status of Norfolk Island are recited in the preamble to the Norfolk Island Bill⁽¹⁾ now before the House of Representatives.

By Order in Council of 24 June 1856, made in pursuance of the Australian Waste Lands Act 1855, Norfolk Island was separated from the Colony of Van Diemen's Land and made a distinct and separate settlement, the affairs of which were, until further Order, to be administered by a Governor to be appointed by the Queen in Council.

By Order in Council of 15 January 1897, it was recited that in prospect of a future annexation of Norfolk Island to the Colony of New South Wales or to any federal body of which that Colony might thereafter form part, it was expedient that in the meantime the affairs of Norfolk Island should be administered by the Governor of New South Wales; and it was ordered that until further Order the affairs of Norfolk Island should be so administered.

By Order in Council of 18 October 1900 (after the Royal Assent to the Commonwealth Constitution Act) it was ordered that the affairs of Norfolk Island should until further Order be administered by the Governor of New South Wales.

The only sense in which it can be said that the legislative and administrative control of Norfolk Island is being 'carried out by part of the constitutional machinery of a State' is that, by Orders in Council of a provisional nature, the Governor of New South Wales for the time being is the Administrator of Norfolk Island.

Under the Australian Waste Lands Act 1855, the King has power to make such provision for the Government of Norfolk Island as may seem expedient.

In my opinion, the King has power to place Norfolk Island under the authority of the Commonwealth, and the Commonwealth Parliament, by virtue of section 122 of the Constitution, has power to accept it as a territory. I cannot see how the power of the King and the Commonwealth Parliament, or the intention of section 122, can be limited in the way suggested.

As regards the second point, I am of opinion that the power of the Commonwealth Parliament to make laws for the government of a territory is plenary, and includes the power to create a legislative authority, subordinate to itself, for the territory.

[Vol. 7, p. 199]

(1) Enacted as the Norfolk Island Act 1913.