Opinion Number. 1337

Subject

BOUNDARIES OF STATE OF QUEENSLAND boundaries of commonwealth and queensland: status of islands in coral sea and off coast of queensland: annexation of territory: alteration of boundaries

Key Legislation

QUEENSLAND COAST, ISLANDS AND WATERS PROCLAMATION dated 22 August 1872 (Qld): DEED POLL TRANSFERRING TO THE COLONY OF QUEENSLAND THE ISLANDS WITHIN SIXTY MILES OF THE COAST dated 22 August 1872: LETTERS PATENT PASSED UNDER THE GREAT SEAL OF THE UNITED KINGDOM FOR THE RECTIFICATION OF THE MARITIME BOUNDARY OF THE COLONY OF QUEENSLAND, AND FOR THE ANNEXATION TO THAT COLONY OF TUAN, SAIBAI, TALBOT, DELIVERANCE, AND OTHER ISLANDS LYING IN TORRES STRAITS AND BETWEEN AUSTRALIA AND NEW GUINEA dated 10 October 1878: LETTERS PATENT UNDER THE GREAT SEAL OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND CONSTITUTING THE OFFICE OF GOVERNOR IN AND OVER THE STATE OF QUEENSLAND AND ITS DEPENDENCIES dated 29 October 1900: CONSTITUTION covering cl 8, s 123: COLONIAL BOUNDARIES ACT 1895 (U.K.) (58 & 59 Vict. c. 34)

Date
Client
The Secretary, Prime Minister

The Secretary to the Prime Minister’s Department has forwarded me the following minute for advice:

I hand you herewith this Department’s file S.C.496 relating to the boundaries of Queensland and of the Commonwealth in the Coral Sea.

It will be seen that two questions are raised in this file; first, a doubt as to whether certain islands and reefs formerly within the boundary of the Colony of Queensland are now within the State of Queensland; second, a suggestion that certain islands off the east and north east coasts of Australia should be brought under control of the Commonwealth.

The Premier of Queensland was informed on 5th December last of the doubt which seemed to exist as to the boundary of Queensland, and was asked whether the Queensland Government would cooperate with the Commonwealth Government in any steps that might be necessary to have the former boundary restored. He replied on 30th July that he had requested the Governor of Queensland to suggest to the Colonial Office that fresh letters Patent should be issued restoring the original boundary of that State.

I should be obliged if you would advise me–

  1. What further steps, if any, the Commonwealth Government should take regarding the rectification of the boundary of Queensland;
  2. What action would be necessary to bring about the inclusion within the States of Queensland and New South Wales of the islands off the East and North East coasts of Queensland shown on the chart attached to the file.

With regard to the maritime boundaries of Queensland the position appears to be that, by the Order in Council of 1872, and the subsequent Proclamation and Deed of Transfer in the same year, all islands within 60 miles from the coast of Queensland were annexed to and became part of that colony.

The maritime boundary of Queensland was subsequently altered by Order in Council of 1878 to include certain Islands within a line commencing at Sandy Cape and proceeding north to the south eastern limit of the Great Barrier Reefs and following the line of those reefs and, after proceeding through the Torres Straits as mentioned in the Order, terminating at a point on the 138th degree of East Longitude.

This Order does not expressly repeal that of 1872 and does not cover the whole maritime boundary of the Colony. It annexed to that colony certain Islands not previously part of Queensland but seeing that the line of the Great Barrier Reef is in places less than 60 miles from the coast the Order does not include any islands which may exist eastward from the reef to the sixty mile mark. In my opinion the effect of the Order is merely to annex those islands not annexed under the Order of 1872.

The Order of 1898 declares a portion of the northern boundary of Queensland which, so far as it goes varies the line fixed by the Order of 1878 and further declares that the islands north of that line shall be part of New Guinea.

The Order of 1900 had as its primary object the constitution of the office of Governor of the State of Queensland. In view of the circumstances under which it was made I think it was also intended to convey an effective and true description of the boundaries of that State. The boundaries theretofore existing were those fixed by the Order of 1872 amplified by the Orders of 1878 and 1898 where the latter orders effect an annexation of further territory. In my opinion the Order of 1900 is ineffective to alter the boundaries for the reason suggested by the Solicitor-General of Queensland. The Order is dated 29th October 1900 which is subsequent to the passing of the Constitution Act (9th July 1900). That Act provides (section 8) that 'after the passing of this Act the Colonial Boundaries Act 1895 shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.'

The Colonial Boundaries Act 1895 requires the consent of a self-governing colony to any alteration of its boundaries. As no consent was given by the Commonwealth to the alteration purported to be made by the Order of 1900 such alteration is non-effective.

It appears desirable to secure the issue of a fresh Order defining the boundaries of the State in question and amending the Order of 1900 so that the Governor of Queensland may have jurisdiction over the State within the boundaries so defined.

As the Commonwealth is the self-governing colony required to consent to alterations of boundaries under the Colonial Boundaries Act 1895 it appears appropriate for the Commonwealth to make representations on the matter to the Secretary of State for the Colonies. In making such representations the boundaries described in Schedule No. 2 attached to the letter of 28th August 1923 of the Queensland Surveyor-General appear desirable of adoption. This would overcome the doubt as to which edge of the Great Barrier Reef is referred to in previous descriptions.

It is suggested that the Queensland Government be informed of the Commonwealth's proposal to approach the Secretary of State for the Colonies and that, upon the concurrence of that Government, steps be taken forthwith in the direction above indicated.

With regard to the second question, this involves the annexation of new territory as parts of the respective States of Queensland and New South Wales. This is a matter capable of being dealt with by Imperial Letters Patent. As the annexation, if made, would be effected by the Imperial Government, it is not a matter governed by section 123 of the Constitution. It is suggested that the State Governments be consulted before the Imperial Government be asked to effect the annexation. If they agree to the alteration of their boundaries, representations should be made by the Commonwealth to the Secretary of State for the Colonies and the consent of the Commonwealth, as a self-governing colony within the meaning of the Colonial Boundaries Act 1895, should be given.

[Vol. 20, p. 207]