I have perused the Seat of Government Surrender Bill⁽¹⁾ as introduced into the New South Wales Parliament.

Paragraph 2 of clause 6⁽²⁾ of the Bill is open to objection on constitutional grounds.

It is taken from section 7 of The Northern Territory Surrender Act 1907 of South Australia-where similar words, not included in the Bill as introduced, were inserted in Committee. The Government of South Australia, on representations from this Government, have undertaken to introduce a Bill for their omission.

The objection to the words is-

1. that they are irrelevant to the surrender; because the surrender is of territorial or jurisdictional rights, and the words refer to proprietary rights;
2. that they purport to limit the surrender of jurisdiction, or to except something from this surrender.

It is assumed that the object of the provision is to make it clear that the surrender of jurisdiction does not have the effect of dispossessing landed proprietors in the Territory. There cannot be the least doubt that the surrender can have no such effect; but if there had been any doubt, it would be completely removed by clause 9⁽³⁾ of the Seat of Government Acceptance Bill, which is as follows:

9. All estates and interests in any land in the Territory which are held by any person from the State immediately before the proclaimed day shall, subject to any law of the Commonwealth, continue to be held from the Commonwealth on the same terms and conditions as they were held from the State.

Clause 12⁽⁴⁾ of the Acceptance Bill applies the Lands Acquisition Act 1906 to the acquisition by the Commonwealth of privately owned lands in the Territory. Under that Act owners can only be dispossessed by resumption at a valuation in the usual way.

The omission of this paragraph of the Surrender Bill is regarded as very important, owing to the uncertainty as to whether it would qualify the surrender and invalidate the Bill. In the United States, the Attorney-General has frequently advised that qualifications of a surrender of territory would either be void or would invalidate the surrendering Act. See Federal Statutes Annotated, Vol. 6, pp. 696,697.

In every other respect the Bill as introduced appears to be satisfactory.

In the United States it has also been held that the surrender of territory does not dispossess private owners: U.S. v. Jones 109 U.S. 513.

[Vol. 7, p. 277]

(1) Enacted as the Seat o f Government Surrender Act 1909 (N.S.W.).

(2) The words of paragraph 2 did not appear in the Seat o f Government Surrender Act 1909 as enacted by the New South Wales Parliament.

(3) Enacted as section 7 of the Seat o f Government Acceptance Act 1909.

(4) Enacted as section lOof theSea/ o f Government Acceptance Act 1909.