Opinion Number. 1872

Subject

TERRITORIES: HEARD AND MACDONALD ISLANDSTRANSFER OF SOVEREIGNTY IN HEARD AND MACDONALD ISLANDS FROM UNITED KINGDOM TO AUSTRALIA: ACQUISITION OF SOVEREIGNTY IN HEARD AND MACDONALD ISLANDS BY AUSTRALIA BY OCCUPATION: MEANING OF ‘[TERRITORY] OTHERWISE ACQUIRED BY COMMONWEALTH’: REGISTRATION WITH UNITED NATIONS

Key Legislation

CONSTITUTION s 122

Date
Client
The Secretary, Department of External Affairs

I refer to your memorandum dated 29th January, 1950, conveying the text of a telegram from the External Affairs Officer, London in which he states that the Commonwealth Relations Office still seems to favour an exchange of notes as the most appropriate method of dealing with the transfer to Australia of the sovereignty in the abovementioned Islands.

(2)  With my memorandum dated 22nd December, last, I forwarded a copy of a submission to the former Attorney-General recommending that His Majesty be requested to issue an Order-in-Council placing the Islands under the authority of the Commonwealth. Dr. Evatt approved of this recommendation and expressed the view that urgent action was desirable.  Any suggestion for re-opening at this stage the basic approach to the problem is to be deprecated. In any case, I would wish to know, before submitting the matter to the present Attorney-General, whether the United Kingdom authorities:

(a)  still attach any importance to the secrecy of communications in regard to the transfer of sovereignty in the Islands;  and

(b)  remain of the opinion that the communications would not require registration in accordance with the Charter of the United Nations.

(3)  I would mention, for your information, that the maintenance of secrecy seems to me to be completely impossible. It will be necessary for an Act to be passed by the Commonwealth Parliament, under section 122 of the Constitution, to provide for the law to be in force in the new Territory constituted by the Islands, and it will be highly desirable, if not necessary, to set forth in that Act the circumstances out of which the Commonwealth’s title to the Islands has arisen.

(4)  Again, I would feel no confidence in the soundness of a contention that an exchange of notes, by virtue of which His Majesty’s title in one part of his territory is transferred from one of His Majesty’s Governments to another, would not require registration.

(5)  I freely concede that on either of the two possible assumptions about the United Kingdom’s legal position with regard to these Islands, an exchange of notes would, of course, satisfy the requirements of section 122. These assumptions are (i) that the United Kingdom had, and (ii) that the United Kingdom had not, valid rights before the proposed transfer. The position, as I see it, would be as follows:

(i)  if the United Kingdom had valid rights before the proposed transfer, then by the transfer Australia would ‘otherwise acquire’ the territory in the islands for the purposes of section 122;

(ii)  if the United Kingdom had no valid rights in the islands, then the proposed exchange would be merely a nullity, and Australia’s claim internationally would and could rest on effective occupation alone.

(6)  I should think also that an exchange of notes could be so expressed as to make the transfer operative as form the date of Australia’s effective occupation (26th December, 1947). This is no doubt some advantage, theoretically at any rate if not practically.

(7)  If therefore the United Kingdom authorities see no objection to the making public of the exchange of notes, and to their registration with the United Nations, I would myself see no great objection to adopting that form—provided at least that it could be put into effect quickly. But if the United Kingdom demurs on either of the two main points, I think Australia should press for an Order-in-Council at the earliest possible date. The really important thing is to clarify without further delay Australia’s title to these islands, not so much perhaps for international as for domestic, constitutional and legislative purposes.

(8)  I do not wish my views on either point to be conveyed as being mine to the Commonwealth Relations Office before the Attorney-General has had an opportunity of considering the whole matter, upon receipt of the views of that Office. But the foregoing will serve to explain why I am urging so strongly that Australia should ascertain, as a matter of urgency, the views of that Office on the two points above referred to.

[Vol. 39, p. 20]