Norfolk Island's

Status Comes Up For A New Airing

From Merval Hoare on Norfolk Island A long-held belief that, con stitutionally, Norfolk Island is in dependent of Australia was given a new airing on Norfolk in late March in a Supreme Court hear ing before Mr. Justice Eggleston.

MR. H. S. NEWBERY, of Norfolk Island, used the constitutional question as argument in unsuccess fully seeking leave to appeal against his conviction in the Court of Petty Sessions last August of failing to enrol, as required by the Norfolk Island Ordinance, 1960-64.

Mr. Newbery conducted his own case. He based it on a statement by a constitutional expert, Lord Chief Justice Halsbury, that the Crown (in its Administrator) had no power to amend or repeal the constitution of a people who had a representa tive legislature before the passing of the British Settlements Act of 1887.

According to Mr. Newbery, Norfolk Island, in 1887, was a self governing community with its own set of 39 laws which had been proclaimed by Sir William Denison, Governor of New South Wales and Governor of Norfolk Island, on October 30, 1857.

Mr. Newbery cited laws 2, 15, and 16 of this code as giving Norfolk its own government.

He said Sir William Denison had previously —by proclamation on November 1, 1856—severed Norfolk Island from the Colony of Van Diemen’s Land and made it “a

distinct and separate settlement”.

This state of being “a separate settlement” had not been changed by later legislation.

Mr. Newbery said a proclamation at Norfolk Island by the Governor of NSW, Viscount Hampden, on November 14, 1896, repealing all existing laws and bringing in new ones was invalid because Viscount Hampden had no power to amend the Norfolk laws. Consequently, all Norfolk legislation from 1896 on wards was invalid.

Mr. A Neaves, who appeared for the Crown, said it was clearly not Queen Victoria’s intention that the island should be self-governing.

Subordinate Legislation

The 39 laws were not a constitu tion but merely subordinate legisla tion; they did not establish a re presentative government to be dealt with in the terms of the British Settlements Act, 1887; and they con templated merely an advisory body, the action of the Governor being necessary to bring laws into opera tion.

Mr. Neaves added that since 1914, when Norfolk was made a Commonwealth territory, the Com monwealth had exercised authority over the island without intervention by the British authorities.

In refusing Mr. Newbery leave to appeal against his conviction, Mr.

Justice Eggleston did not require him to pay costs.

Footnote : In 1960 the Norfolk Island Council sent a letter from Mr. Newbery to Australia’s Gover nor-General seeking an investiga tion of the constitutional question.

This resulted in a detailed study, by Australian experts, but the Commonwealth Solicitor-General informed the Council that the constitutional authority of the Com monwealth Parliament to enact legislation for Norfolk Island was clear beyond doubt.