In consultation with officers of the Department of External Affairs, consideration has been given to the most appropriate manner of ensuring that Australia’s legal title to Heard and MacDonald Islands is established for the purposes of:

(i)  International Law; and

(ii)  Australian domestic law, namely, section 122 of the Constitution which relates to territories placed by His Majesty under the authority of the Commonwealth or otherwise acquired.

(2)  In this consideration, regard has been had to the following points, namely:

(a)  The rights taken over by Australia are in continuance of those formerly enjoyed by the United Kingdom.

(b)  The United Kingdom Government would be unwilling to recommend the issue of any Order-in-Council which had effect prior to the date of its issue.

(c)  Similarly, an Order-in-Council could not be issued by the Federal Executive Council having retrospective operation.

Note:  The relevancy of the date of operation arises if it is regarded as essential that there should be in existence some instrument of transfer which has effect from 26th December, 1947.

(3)  Under International Law, sovereign rights in territory may be acquired, inter alia—

(a)  by occupation

(b)   by some form of transfer or cession.

Occupation is applicable only to terra nullius. Although the validity of United Kingdom claims to the Islands is to some extent doubtful, it is clear that Australia cannot rely on title by occupation alone but there is no reason why Australia should not make a claim in the alternative.  That is to say,

(a)  That the transfer to Australia of United Kingdom rights was made effective by the establishment of occupation and control with United Kingdom consent; or

(b)  That, if the United Kingdom rights are without legal foundation, Australia, by its occupation, has an independent root of title.

(4)  If this analysis is correct, Australian title, both for international and domestic purposes, will depend on proof of facts if any challenge is ever made. In that view, the only action really necessary at this stage is a public announcement of the facts issued with the approval of His Majesty and the attached draft notice has been drawn accordingly.

(5)  In the case of the Ashmore and Cartier Islands, His Majesty placed the Islands under the authority of the Commonwealth. In the present case, I should think that any proposal to place the Islands under the authority of the Commonwealth as from December 1947 would not satisfy the legal advisers of the United Kingdom Government who have been unable to accept any draft instrument which would be given effect prior to the date of its issue. Probably, the same rule applies to Orders-in-Council issued in Australia. This means, in effect, Australian laws under section 122 could not be given retrospective effect to the date of occupation. Hence, from the legal point of view it may be necessary to rely on the second limb of section 122 (‘otherwise acquired’).

(6)  The issue is possibly complicated because the United Kingdom had certain inchoate rights in the Islands and claimed sovereign rights before Australian occupation. As the United Kingdom claimed these rights it is obviously undesirable to disclaim any continuity. On the other hand, no formal instrument of transfer was ever issued. The only evidence available of Australian occupation is—

(a)  Letter (dated 23rd December, 1947) from United Kingdom Government expressing willingness to transfer its rights, titles and interests in the Island.

(b)  Australian occupation.

(c)  Letter from Secretary, Prime Minister’s Department, acknowledging letter of 23rd December, 1947, and reporting the occupation of the Islands.

(7)  The foregoing is based on the view that any formal instrument which has only prospective operation is unacceptable. So far as can be ascertained, all practical needs can be met so long as Australia’s legislative powers are clearly established from an early future date. If this is so, the absence of retrospective operation may be thought to be only a theoretical defect.

(8)  If an instrument with only prospective effect is thought sufficient as a matter of policy, there seem to be legal advantages in resorting, as has been done in the other Antarctic territory, upon the first rather than the second limb of section 122 of the Constitution—i.e., ‘territory placed by His Majesty under the authority of the Commonwealth’.

(9)  If the Islands are formally placed under the authority of the Commonwealth by a United Kingdom Order in Council, the position under domestic law would be clear beyond reasonable doubt. Under international law, the position would have to be considered on two contrary assumptions—i.e. either that the asserted United Kingdom prior rights are valid, or that they are not. If the United Kingdom rights were held valid, the instrument placing the territory under the authority of the Commonwealth would no doubt satisfy the requirements of cession at international law. If, on the other hand, the United Kingdom claims are not valid, Australia’s international rights could rest only on title by occupation. The mere issue of a United Kingdom Order purporting to place the territory under the authority of the Commonwealth would not disentitle Australia to rely on its acts of occupation.

(10)  On balance, it appears that a United Kingdom Order in Council placing the territory under the authority of the Commonwealth from the date of its operation would be the most satisfactory procedure. It necessarily assumes the validity of the prior United Kingdom claims, and on that assumption readily fulfils the requirements of both domestic and international law. If on the other hand the United Kingdom claims are not valid, the mere issue of the Order in Council would not preclude Australia from setting up title by virtue of acts of occupation. This title, if established, would likewise satisfy the requirements both of international and domestic law.

(11)  On balance, therefore, I recommend that a request should be transmitted to His Majesty by the Australian Government requesting the issue of an Order in Council placing the Islands under the authority of the Commonwealth.

[Vol. 38, p. 427]