Opinion Number. 1420

Subject

Ashmore and Cartier Islands ashmore and cartier islands: transfer from british government to AUSTRALIA: ALTERATION OF BOUNDARIES OF COMMONWEALTH: ALTERATION OF BOUNDARIES OF WESTERN AUSTRALIA: DELEGATION OF LEGISLATIVE POWER TO WESTERN AUSTRALIA

Key Legislation

Government of Western Australia Act 1829 (U.K.) (10 Geo. IV c. 22): Colonial Boundaries Act 1895 (U.K.) (58 & 59 Vict. c. 34): Constitution covering cl 8, ss 122, 123

Date
Client
The Secretary, Prime Minister

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

I am forwarding you herewith communications which have passed between the British and Commonwealth Governments, and the Government of Western Australia, respecting the transfer to Western Australia of the Ashmore Islands and Cartier Island.

You will observe that the Secretary of State for the Colonies inquires as to the form of transfer which would meet with the Commonwealth’s convenience. In this respect the Premier of Western Australia has made certain suggestions.

I am directed to ask that you be so good as to advise as to the most suitable manner of effecting the transfer.

The Premier of Western Australia has suggested that the correct procedure to follow in transferring the islands to the State would be for the Imperial authorities to issue letters patent annexing the islands to Western Australia.

The Ashmore Islands are in the Timor Sea approximately in latitude 12° south and longitude 123° east and more than 200 miles to the north-westward of Cape Bougainville. Geographically, they would be said to be attached to the Australian continent, being on the edge of the shallow water shelf surrounding the Australian continent and separated by deep water from Timor. The Cartier Island is some 50 miles to the south-eastward of the Ashmore Island and nearer to Australia.

Scotts Reef, which is mentioned in the Prime Minister’s letter of 6th February 1925 to the Premier of Western Australia, is approximately in latitude 14° south and longitude 122° east and less than 200 miles from the West Australian Coast.

In letters patent of August 25th 1890, constituting the office of Governor of the Colony of Western Australia and its dependencies, the Colony and its dependencies are defined as ‘extending from the parallel of 13° 30’ south latitude to West Cape Howe in the parallel of 35° 8’ south latitude, and from Dirk Hartog’s Island, on the Western coast, in longitude 112° 52’, to 129° of East longitude, reckoning from the meridian of Greenwich, including all the islands adjacent in the Indian and Southern Oceans, within the latitudes aforesaid of 13° 30’ South and 35° 8’ South, and within the longitudes aforesaid of 112° 52’ and 129° East from the said meridian of Greenwich.’

The Ashmore Islands and Cartier Island are outside the limits of latitude and longitude mentioned in the above description. Scotts Reef is within those limits and would appear to be already a part of Western Australia or its dependencies.

(See also earlier letters patent 10th July, 1873, and 17th November, 1877. Also Act 10, George 4, Ch. 22.)

The letters patent of 29th October, 1900, constituting the office of Governor of the State of Western Australia and its dependencies in the Commonwealth of Australia, define the boundaries of the State of Western Australia in precisely the same terms.

The Colonial Boundaries Act 1895 is the only general statutory authority of which I am aware for altering the boundaries of a Colony. It provides that—

  1. Where the boundaries of a Colony have either before or after the passing of this Act been altered by Her Majesty the Queen by Order in Council or letters patent, the boundaries as so altered shall be, and be deemed to have been, from the date of the alteration the boundaries of the Colony.
  2. Provided that the consent of a self-governing Colony shall be required for the alteration of the boundaries thereof.
  3. In this Act, self-governing Colony means any to the Colonies specified in the Schedule of this Act.

The Schedule specified all the Australian Colonies including Western Australia.

Covering clause 8 of the Commonwealth of Australia Constitution Act provides 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.

It therefore appears that the Colonial Boundaries Act no longer authorises the King to alter the boundaries of the State of Western Australia, but it authorises him to alter the boundaries of the Commonwealth.

Apparently, the effect of action under the Colonial Boundaries Act would be to make these islands part of the Commonwealth, but not to make them part of Western Australia. There is another method by which the Islands could be placed under the authority of the Commonwealth and that is by virtue of section 122 of the Constitution of the Commonwealth which provides that the Parliament (of the Commonwealth) may make laws for the government of any territory … placed by the Queen under the authority of and accepted by the Commonwealth or otherwise acquired by the Commonwealth.

If, therefore, the King by Order in Council or letters patent, placed these islands under the authority of the Commonwealth and they were accepted by an Act of the Commonwealth Parliament, that Parliament would have power to make laws for their government.(1)

Its authority in that case would be as plenary as that of the Parliament of the United Kingdom (Hodge v. Queen, 9 Appeal Cases 117), and apparently it could, if it wished, delegate legislative power over the islands to the Parliament of Western Australia.

The Commonwealth Parliament could also, by virtue of section 123 of the Constitution, with the consent of the Parliament of Western Australia and the approval of the majority of the electors of Western Australia voting upon the question, alter the limits of Western Australia by including within them the islands which had thus been placed under Commonwealth authority. In this way it would be possible when the islands have been placed under the Commonwealth authority to annex them to the State, but the difficulty is that under section 123 the expense of a State referendum would be involved to make the annexation to the State effective.

The action which has above been suggested under section 122 avoids this difficulty and would, it appears to me, meet equally well the needs of the situation.

[Vol. 23, p. 223]

(1) See Ashmore and Cartier Islands Acceptance Act 1933 and Commonwealth of Australia, Gazette, No. 28, 10 May 1934, p. 761.