The Secretary, Prime Minister’s Department, has forwarded the following letter received from the Lieutenant-Governor of Papua, and asks for my advice in regard to the inquiry made in the final paragraph:

I have the honour to inform you that on October 18th, on my way back from Samarai to Port Moresby, we found a Japanese launch lying about a quarter of a mile outside the main barrier reef ten miles eastward of Coutance Island.

Mr. Humphries, Resident Magistrate, boarded the launch and brought the man who appears to be in charge to the ‘Laurabada’. He was, apparently, unable to speak or understand English, but we showed him a chart and from signs that he made it appeared that he had come from North Queensland and was on his way back to Torres Strait.

Mr Humphries reported that there were three men on board, but it is possible that the remainder of the crew were away in the boats, for there were no boats of any kind to be seen on the launch.

As there was no evidence that there was any breach of the law, we took no further steps but proceeded to Port Moresby.

It is reported that the launch afterwards called at Hula and that the crew, who were said to number about 18, landed at that village.

The incident has been reported to Thursday Island.

The launch was more than three miles from the coast, but presumably the crew were engaged in fishing on the reef, though we saw no sign of them.

I should be glad if you would inform me whether the reef where it is distant more than three miles from the coast, is legally part of the Territory. If it is not, I presume that persons fishing there without a licence may do so with impunity.

Section 5 of the Papua Act 1905–1934 provides that the Possession of British New Guinea is thereby declared to be accepted as a Territory under the authority of the Commonwealth by the name of the Territory of Papua. The Act does not in terms define what constituted the ‘Possession of British New Guinea’, but the preamble recites Letters Patent dated 8 June 1888, whereby the Territories and Islands therein described were constituted and erected into a separate Possession and Government by the name of British New Guinea. I am of opinion that these Territories and Islands referred to in those Letters Patent (as affected by letters Patent dated 8 February 1896, which are not relevant to this Opinion) constituted the Possession of New Guinea within the meaning of the Act, and now comprise the Territory of Papua.

Those Territories and Islands are defined by the Letters Patent as being portion of the island of New Guinea, certain specified groups of Islands, ‘and all islands lying between the 8th and 12th parallels of south latitude, and between the 141st and 155th degrees of east longitude and not forming part of Our colony of Queensland; and furthermore including all islands and reefs lying in the Gulf of Papua to the northward of the 8th parallel of south latitude.’

The reef referred to in the Lieutenant-Governor’s letter lies between the 8th and 12th parallels of south latitude, and between the 141st and the 155th degrees of east longitude, but is apparently more than three miles from the coast of the mainland and from the coast of any island in that area.

It does not, therefore, form part of the Territory, unless the expression ‘islands lying between the 8th and 12th parallels … and the 141st and 155th degrees …’ may be read as including ‘reefs’ lying within that area. I am of opinion, however, that reefs are not included, as a distinction is made between ‘reefs’ and ‘islands’ in another part of the Letters Patent.

The answer to the Lieutenant Governor’s inquiry is, therefore, that the reef is not part of the Territory, and the laws of the Territory relating to fishing do not apply in respect of the reef.

[Vol. 28, p. 354]