I refer to your memorandum dated 22nd June, 1948, requesting advice whether an exchange of notes between the United Kingdom Government and the Australian Government would be effective to place these Islands under the authority of the Commonwealth and so to attract the provisions of section 122 of the Constitution.

(2)  It appears from an informal letter from the Commonwealth Relations Office that that Office regarded the title to the Islands as being firmly established only by the Australian occupation in December, 1947. What is now in contemplation is the transfer to Australia of the inchoate rights of the United Kingdom to the Islands.

(3)  My understanding of the reasons for the action taken by Australia to occupy the Islands is that Australia merely intended by its act of occupation to perfect any rights which the United Kingdom Government had in the Islands. It was not the intention that Australia should, as it were, establish an independent title to the Islands as if they were terrae nullius. What was proposed was the issue of an Order-in-Council placing the control of the Islands under the Commonwealth when the occupation had become effective. However, the view taken by the Commonwealth Relations Office makes it necessary to consider whether Australia has in fact and law on its own account acquired a territory for the purposes of section 122. Having regard to the comprehensive character of the words ‘territory otherwise acquired’ in section 122, I think it may be assumed that Australia’s occupation of the Islands constitutes a sufficient basis in law for the exercise of legislative powers in relation thereto by the Commonwealth Parliament, although it would, in my view, still be desirable for the United Kingdom Government to transfer to the Commonwealth whatever rights it has in the Islands.

(4)  If the United Kingdom Government is prepared to transfer its rights in the Islands to Australia by means of an exchange of notes, it seems to me that, when the exchanged has taken place, it could be accepted that those rights will have passed to Australia both in fact and in law.

[Vol. 38, p. 180]