§ 478. “And shall be Vested in and Belong to the Commonwealth.”

The grammar of this section is by no means clear. Is it the “seat of Government” or the “territory” within which the seat of Government is situated that is to be vested in and belong to the Commonwealth? In the clause as framed by the Convention it was clear that the “territory” was to be vested in the Commonwealth, and it is submitted that this is the true reading of the section. That is to say, the words “and shall be vested,” &c., are part of the relative sentence “which shall have been granted,” &c., referring to the antecedent “territory.”

It is clear from this construction that the Commonwealth acquires under this section territorial rights only, and not proprietary rights. What the Commonwealth may acquire under section 51—xxxi. is “property;” what it acquires under this section is “territory.” Landowners or Crown Lessees within the territory chosen for the seat of Government will not be dispossessed unless the Federal Parliament chooses to dispossess them. The result of the transfer of territory will be that instead of holding from the Crown, as represented by the Government of New South Wales, they will hold from the Crown as represented by the Government of the Commonwealth; and the Commonwealth, in the exercise of its exclusive jurisdiction over the territory, will be free to resume so much of the privately opened land as it requires, in accordance with laws passed under the power of “eminent domain” (sec. 51—xxxi.), and subject, of course, to the constitutional requirement of just compensation.

CROWN LANDS—The meaning of the provision that Crown lands shall be granted without payment therefor is not clear, and seems to involve some confusion between territorial and proprietary rights. It may be construed to apply to lands which are Crown lands within the meaning of the Crown Lands Acts of New South Wales; or it may—as Mr. Oliver suggests in his report—apply only to vacant Crown lands. It does not appear to mean that the occupation of Crown tenants is necessarily to be disturbed by the acquisition of the territory. It is perhaps intended to mean that the rights of the Crown, in any lands whatever, shall not be the subject of compensation, although the proprietary rights of individuals, if their land is resumed, must be dealt with on just terms (sec. 51—xxxi.). Mr. Oliver, however, suggests that in the case of lands which are not “Crown lands” in the ordinary acceptation of the term, the State may be entitled to compensation for the loss of its rights of taxation.

EXCLUSIVE POWER.—The seat of Government, when determined by the Parliament and duly acquired, becomes subject to the jurisdiction of the Federal Parliament, which has exclusive power to make laws for its peace, order, and good government. (See notes to sec. 52—i.)

  ― 983 ―

Power to Her Majesty to authorise Governor-General to appoint Deputies.

126. The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies479 within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

CANADA.—It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor-General from time to time to appoint any person or any persons jointly or severally to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise during the pleasure of the Governor-General such of the powers, authorities, and functions of the Governor-General as the Governor-General deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen; but the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor-General himself of any power, authority, or function.—B.N.A. Act, 1867, sec. 14.

HISTORICAL NOTE.—Clause 2, Chap. VII., of the Commonwealth Bill of 1891, was in almost identical words, and was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, suggestions by the Legislative Assembly of South Australia, to limit the provision to a single deputy for the whole Commonwealth, and to omit the concluding sentence, were negatived. (Conv. Deb., Melb., pp. 712–3.) Verbal amendments were made after the fourth report.