Opinion Number. 1447

Subject

ASHMORE AND CARTIER ISLANDS PROPOSED TRANSFER OF INTERESTS OF UK GOVERNMENT IN ASHMORE ISLANDS AND CARTIER ISLET TO COMMONWEALTH OF AUSTRALIA: PREFERRED MODE OF TRANSFER: ORDER-IN-COUNCIL PLACING ISLANDS UNDER AUTHORITY OF COMMONWEALTH UNDER CONSTITUTION s 122 AND PASSING OF ACT BY COMMONWEALTH PARLIAMENT ACCEPTING ISLANDS

Key Legislation

COLONIAL BOUNDARIES ACT 1895 (U.K.) (58 & 59 Vict. c. 34): CONSTITUTION s 122

Date
Client
The Secretary, Prime Minister

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

With reference to Opinion No. 134 of the Solicitor-General dated 23rd July, 1927,(1) relative to the proposed transfer to the Western Australian Government of jurisdiction over the Ashmore and Cartier Islands, I forward herewith a copy of a despatch addressed to the Secretary of State for Dominion Affairs on the 11th January, 1928, in this matter, and a reply thereto of the 8th January last received from the Secretary of State.

I should be glad if you would please advise as to which of the two methods of transfer set out in the Secretary of State’s despatch would in your opinion be preferable, having regard to the circumstances of the case.

The despatch of the 8 January from the Secretary of State reads as follows:

  • With reference to your despatch No. 7 of the 11th January, 1928, regarding the proposed transference of the interests of His Majesty’s Government in Great Britain in the Ashmore Islands and Cartier Islet to His Majesty’s Government in the Commonwealth of Australia, I have the honour to state that it would appear that there are two methods by which such transfer could be effected, viz. (a) by the issue of an Order in Council under the Colonial Boundaries Act 1895, extending the boundaries of the Commonwealth of Australia so as to include these islands, or (b) by the issue of an Order-in-Council placing the islands under the authority of the Commonwealth in terms of section 122 of the Commonwealth of Australia Constitution Act.
  1. As an example of the former procedure, I enclose a copy of the Order-in-Council of the 13th May 1901 extending the boundaries of New Zealand so as to include the Cook Islands: while the latter procedure was adopted when Norfolk Island was placed under the authority of the Commonwealth of Australia by Order-in-Council of the 30th March, 1914. Reference may be made also to the Letters Patent of 18th March, 1902 placing British New Guinea under the authority of the Commonwealth. I may observe in this connection that as the boundaries of the Commonwealth of Australia as such are not defined in the Commonwealth of Australia Constitution Act or other Commonwealth instrument the procedure (b) might from this point of view be found more convenient.
  2. In either case it would be desirable, as a preliminary to the issue of an Order-in-Council, that Resolutions should be passed by both Houses of the Commonwealth Parliament which would take the form of consenting to the inclusion of the islands in the boundaries of the Commonwealth, or of authorising their acceptance by the Commonwealth, according to whether it was desired to adopt procedure (a) or (b). I understand from your despatch under reference that upon the issue of an Order-in-Council an Act would be passed by the Commonwealth Parliament accepting the islands in terms of section 122 of the Commonwealth of Australia Constitution Act and providing for laws for their government to be made by the Parliament of Western Australia. It may be mentioned in this connection that if procedure (a) were adopted, it would appear that the islands would in the normal course, upon the issue of an Order-in-Council under the Colonial Boundaries Act, become forthwith part of the Commonwealth, but that in case of adoption of procedure (b), the transfer of the islands could not take effect until the Commonwealth Parliament had made due provision for their administration: in the latter case, therefore, it would be desirable that the Order-in-Council should be so worded as not to come into operation until the proposed Act of the Commonwealth Parliament had been passed.
  3. I should be glad to learn in due course the views of the Commonwealth Government as to the procedure to be adopted.
  4. It is observed from your telegram No. 141 of the 2nd August that no further action is desired as regards Scott’s Reef.

In my opinion, the method to be preferred in transferring the Islands to the Commonwealth would be the issue of an Order-in-Council placing the Islands under the authority of the Commonwealth under section 122 of the Constitution, and the passing of an Act by the Commonwealth Parliament accepting the Islands and providing for laws for their government to be made by the Parliament of Western Australia.

[Vol. 24, p. 145]

(1) Opinion No. 1420.