Opinion:
No. 237
Subject:
MACQUARIE AND KING ISLANDS
WHETHER PART OF COMMONWEALTH
Author:
ISAACS Isaac Alfred
Key Legislation:
FISHERIES ACT 1889 (TAS.)
Date:
29 March 1906
Client:
The Minister for Trade and Customs
Related Opinion:
Opinion text:

The Minister for Customs asks to be advised whether Macquarie Island, King Island and other islands more or less subject to the control of the various States form part of the Commonwealth.

Both King Island and Macquarie Island are within the description of the Colony of Tasmania and its Dependencies as set out in the Letters Patent constituting the Office of Governor of that Colony.

In the Letters Patent(1) constituting the Office of Governor and Commander-in-Chief of the Colony of Tasmania, the Colony of Tasmania and its Dependencies is described as-

comprising Our Island of Tasmania, and all islands and territories lying to the southward of Wilson's Promontory, in the Province of Victoria, in thirty-nine degrees twelve minutes of south latitude, and to the northward of the forty-fifth degree of south latitude, and between the one hundred and fortieth and one hundred and fiftieth degrees of longitude east from Greenwich, and also Macquarie Island, lying to the south-east of the said Island of Tasmania

which said Colony of Tasmania and its Dependencies were thereinafter called the Colony.

This description of Tasmania is repeated in the Letters Patent dated 29 October 1900, issued after the passing of the Commonwealth of Australia Constitution Act.

These Letters do not in themselves grant Macquarie Island to Tasmania, but they are very strong evidence that the Island became annexed to Tasmania in some form and that the annexation is recognised as valid by the Imperial Government.

A careful search has been made in my office but no grant of the Island to Tasmania has been found.

In January 1889, the Government of New Zealand, being unaware of the previous inclusion of the Island in the Colony of Tasmania and its Dependencies, urged the Colonial Office to annex Macquarie Island and the islands adjacent thereto to New Zealand.

The Colonial Office expressed a willingness that the annexation should be effected and gave directions to the New Zealand Government as to how the annexation should be carried out.

The New Zealand Government made preparation for annexing the islands when the matter came under the notice of the Tasmanian Government which promptly informed the New Zealand Government that the Island was, by the Letters Patent of 1880, included in the Colony of Tasmania.

Both the British Government and the New Zealand Government recognised Tasmania's right to the Island. In a despatch dated 28 February 1890, to the Governor of New Zealand, the Secretary of State said:

Should the Government of New Zealand wish to come to any arrangement with that of Tasmania for the transfer of this Island or Group of Islands no objection would be raised on the part of His Majesty's Government to such a course.

Some steps were taken to transfer the Island from Tasmania to New Zealand, and a motion for an address to the Queen praying for the transfer was passed by the Legislative Council of Tasmania but was defeated in the House of Assembly.

In the motion for the address the Island was referred to as a 'dependency of Tasmania'.

Since then Tasmania has exercised authority over the Island by making regulations under a Tasmanian Act (the Fisheries Act 1889, No. 11) prohibiting the taking of seals on the Island and adjacent islands which are described as a dependency of Tasmania and by granting leases of land therein.

At the time the Commonwealth was established the Government of Tasmania was, by the authority of the Imperial Government, exercising authority over both King and Macquarie Islands. Neither of these Islands has any separate Government of its own, and in the absence of any such Government must be considered to be part of the State of Tasmania, and consequently part of the Commonwealth.

It is impossible to advise as to whether 'other islands more or less subject to the control of the various States' form part of the Commonwealth. The boundaries of the Australian States are, generally speaking, laid down very definitely and there is little difficulty in finding out whether any particular island is part of a State or not. For instance, Kangaroo Island is part of South Australia, the islands about Cape York Peninsula are part of Queensland, and Melville Island, as part of the Northern Territory, is part of South Australia.

[Vol. 5, p. 209]

(1) Dated 17 June 1880.

* See also Opinion No.248.


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