The Territory of the Commonwealth.

This expression may be used with different meanings. First, we have seen that the Commonwealth is a territorial community; and its territory is the sum of the territories of its parts. The territory of every State therefore is territory of the Commonwealth. But there are parts of the Commonwealth which, not forming part of any State (Act, sections v. and vi.; Constitution, section 127), stand outside the main principle of federal government, and these are distinguished by the expression “territory of the Commonwealth” from the “territory of the States.” Such parts of the Commonwealth outside the State organization include:

1. Territory of a State surrendered by the State Parliament, thereby becoming subject to the exclusive jurisdiction of the Commonwealth (sections 111 and 122).

2. Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth (section 122).

3. By section 52 (1), the seat of government and all places acquired by the Commonwealth for public purposes are subject to the legislative power of the Commonwealth exclusively; and in the view taken in the United States, the exclusive power of legislation in the Federal Government, where it exists over any territory, carries with it exclusive jurisdiction in all respects, so that the territory in question ceases wholly to be in the power of a State.note

By section 125, the seat of government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred

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miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

A third meaning with which the expression “territory of the Commonwealth” may be used, is in relation to property in the land and not governmental power. Nowhere is it more necessary than in communities in the economic condition of the United States, Canada, and Australia to appreciate the distinction between government and property. The vast areas of public and unappropriated lands form one of the most constant subjects of legislation and absorb the attention of one of the largest departments of administration. In the United States and in Canada the Courts have been called on again and again, in dealings between the central and the local power, to determine whether the transaction was one of cession or grant, of public power or private right.note

Section 125 is a typical case of difficulty. The terms employed—“granted to or acquired by,” “vested in and belong to”—are words of property rather than of jurisdiction; and it is open to question whether the section deals with government and jurisdiction at all, whether the exclusive power of the Commonwealth over the territory in question does not come from § 52 (1) alone. The last clause in § 125, which declares that such portion of the territory as consists of Crown lands shall be granted without any payment therefor, clearly designates a right of property. Its seems reasonable to conclude that the first clause in the section at any rate embraces property, and that the words “or acquired by” point to acquisition by purchase of lands other than Crown lands either by voluntary dealing or by the exercise of compulsory powers under § 51 (xxxi.).

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