Opinion Number. 379

Subject

JERVIS BAY EXTENT OF COMMONWEALTH POWER OVER WATERS OF AND WATERS BEYOND

Key Legislation

CONSTITUTION, covering cl. 5; s. 122 : SEAT OF GOVERNMENT ACCEPTANCE ACT 1909.s.5

Date
Client
The Secretary, Department of Home Affairs

The Secretary, Department of Home Affairs forwards the following memorandum:

The agreement made on the eighteenth day of October 1909, between the Commonwealth and the State of New South Wales, and which is the first schedule to the Seat of Government Acceptance Act 1909, provides in Clause 5 that the State shall grant to the Commonwealth without payment therefor areas of land at Jervis Bay. These areas are particularly described in the following sub-sections of the Clause above referred to, and in each description mean high-water mark is referred to as one of the boundaries.

This agreement.was ratified by the Seat of Government Acceptance Act 1909, Clause 3.

The question has been raised as to whether the Commonwealth, after the declaration by proclamation provided for in Section 5 of the Act, will have any rights or jurisdiction over the waters of Jervis Bay or of the Pacific Ocean, by virtue of the surrender to the Commonwealth of the land referred to, and if so, the nature thereof.

The Minister for Home Affairs directs me to submit the question to you, and to ask for the favour of your advice and opinion thereon.

In my opinion, the effect of clause 5 of the Agreement, confirmed as it is by the Act, is to make it obligatory upon the State of New South Wales to issue to the Commonwealth Crown Grants of the lands at Jervis Bay therein referred to. Neither the Act, the proclamation under section 5, nor the issue of the Crown Grants will give to the Commonwealth any further jurisdiction over the waters of Jervis Bay or of the Pacific Ocean than it had before.

The Commonwealth of course has jurisdiction in Jervis Bay, as in every other part of the Commonwealth, to the full extent of the scope of the Federal powers; so that the laws of the Commonwealth (e.g. with respect to defence) will be in force and will prevail there as elsewhere.

[Vol. 7, p. 471 ]