The constitutional status of Torres Strait islands beyond 60 miles from the Queensland coast as part of Queensland is settled, with implications for the application of Commonwealth and Queensland legislation to those islands and surrounding waters.
Later decisions that cite Wacando v Commonwealth
Decisions cited by Wacando v Commonwealth
WACANDO v. THE COMMONWEALTH [1981] HCA 60; (1981) 148 CLR 1
Constitutional Law (Q.)
High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Aickin(4), Wilson(5) and Brennan(6) JJ.
CATCHWORDS
Constitutional Law (Q.) - Boundaries of State - Torres Strait islands - Statutory power for Queen to annex territory to any colony by Letters Patent - Letters Patent authorizing Governor of Colony of Queensland to declare certain islands in Torres Strait, including Darnley Island, to form part of Queensland - Proclamation so declaring - Doubt about power of Queen to annex territory to self governing colonies - Imperial statute deeming boundaries altered by Letters Patent to be true boundaries of a colony - Whether previous annexation alteration by Letters Patent - Australian Colonies Act 1861 (Imp.) - The Queensland Coast Islands Act of 1879 (Q.) - Colonial Boundaries Act 1895 (Imp.) - Letters Patent of 6 June 1859, 13 March 1862, 30 May 1872 and 10 October 1878 fixing boundaries of Colony of Queensland - Letters Patent of 29 October 1900 Constituting office of Governor of State of Queensland - The Constitution (63 & 64 Vict. c. 12),cll. 3, 4, 5, 8;s. 123.
HEARING
1981, May 5, 6; November 12. 12:11:1981DECISION
November 12.2. The question is raised by a case stated in an action brought by Carlemo Kelly Wacando against the Commonwealth of Australia and the State of Queensland for certain declaratory relief. The matters alleged by the plaintiff in his statement of claim, so far as it is necessary to state them, are as follows. The plaintiff was born in 1937 on Darnley Island, and the plaintiff's father was also born on that island. From the date of his birth until 1949 the plaintiff resided on the island on certain land which his father owned and used for the support of his family, and has resided there from time to time. The plaintiff is entitled by birth and as of right to reside upon and be a citizen of the island, and claims to be entitled to the land which was owned by his father. The plaintiff wishes and intends, in conjunction with others, to develop beche-de-mer fishing on the seabed surrounding and between Darnley Island and other islands beyond 60 miles from the coast of the mainland of Queensland, and to engage in the exploration for and exploitation of petroleum resources of the said islands and the submerged lands adjacent to the said islands and of the seabed between the said islands. In conformity with the terms of a treaty signed on 18 December 1978 by the Commonwealth and by the Independent State of Papua New Guinea, but not yet ratified, and in reliance respectively on the Continental Shelf (Living Natural Resources) Act 1968 (Cth), as amended, and the Fisheries Act 1976 (Q.) the defendants and each of them claim to be entitled to prevent the development of commercial beche-de-mer fishing by the plaintiff without the permit, leave or licence of the defendants or either of them on the seabed surrounding and between the said islands, and threaten to take steps against the plaintiff in the event of his commencing such fishing. In conformity with the terms of the said treaty, and in reliance on the Seas and Submerged Lands Act 1973 (Cth), as amended, and the Petroleum (Submerged Lands) Act of 1967 (Q.), as amended, the Commonwealth claims to be entitled to prevent the plaintiff without the permit, leave or licence of the defendants or either of them from engaging in the exploration for and the exploitation of petroleum resources of submerged lands adjacent to the said islands and of the subsoil surrounding and between the said islands and threatens to take steps against the plaintiff in the event of his commencing such exploration or exploitation. In conformity with the terms of the said treaty, and in reliance on the Petroleum (Submerged Lands) Act of 1967 (Q.), as amended, the Mineral Resources (Adjacent Submarine Areas) Act of 1964 (Q.) and the petroleum Act 1923- 1976 (Q.), the State of Queensland contends that it is entitled to prevent the plaintiff without the permit, leave or licence of the defendants or either of them from engaging in the exploration for the exploitation of petroleum resources of the said islands and submerged lands adjacent to the said islands and of the seabed and subsoil surrounding and between the said islands and threatens to take steps against the plaintiff in the event of his commencing such exploration or exploitation. Many of the facts alleged are denied or not admitted by the defendants, but each of the defendants does contend that its legislation has an application that would affect the plaintiff in his proposed undertakings. The plaintiff claims inter alia declarations that Darnley Island and all islands in Torres Strait beyond 60 miles from the coast of the mainland of Queensland do not fall within the boundaries of the State of Queensland (prayer 1), that the Continental Shelf (Living Natural Resources) Act 1968 (Cth) and the Fisheries Act 1976 (Q.) have no application to the seabed surrounding and between the said islands or, in the alternative, are invalid in so far as they purport to apply to the seabed surrounding and between the said islands (prayer 5) and that the Petroleum (Submerged Lands) Act 1967 (Cth), the Seas and Submerged Lands Act 1973 (Cth), the Petroleum (Submerged Lands) Act of 1967 (Q.), the Mineral Resources (Adjacent Submarine Areas) Act of 1964 (Q.) and the Petroleum Act 1923-1976 (Q.) have no application to the said islands and the submerged lands adjacent to the said islands or to the seabed and subsoil surrounding and between the said islands, or, in the alternative, are invalid in so far as they purport to apply to the said islands and the said submerged lands adjacent to and the seabed and subsoil surrounding and between the said islands (prayer 6). (at p6)
3. The following questions are stated for the opinion of the Full Court:
(a) Whether the matters alleged in paragraphs 1-5B inclusive and pars 8,
15A, 15B and 15C of the further amended statement of claim,
if established,
together with the facts stated in pars 2-20 inclusive of this stated case,
would give the plaintiff standing to obtain
the relief sought in prayer 1,
taking into account as well the relief claimed in prayers 5 and 6 of the
relief claimed in the further
amended statement of claim;
(b) If yes to (a), whether Darnley Island forms part of the State of
Queensland;
(c) If no to (b), whether the Parliament of the Colony of Queensland
immediately prior to the establishment of the Commonwealth,
had any and if so
what power to legislate in relation to Darnley Island;
(d) If the Parliament of the Colony of Queensland, as at the establishment
of the Commonwealth, had power to legislate in relation
to Darnley Island
whether such power was a power of the Parliament of the Colony of Queensland
in terms of s. 107 of the Commonwealth
of Australia Constitution.
(e) What provision should be made for the costs of this stated case. It
will be observed that the substantive questions in the
stated case are asked
in relation to Darnley Island, and, unlike prayer 1 of the statement of claim,
do not relate to other islands
beyond 60 miles from the coast. Mr. Jackson,
who appeared for the State of Queensland, indicated that Queensland did not
wish to
submit that the plaintiff was not entitled to have the questions
relating to Darnley Island decided, and the learned Solicitor-General
for the
Commonwealth also did not submit that the plaintiff had no locus standi.
Having regard to the special connexion which exists
between the plaintiff and
Darnley Island, and the particular effect which the legislation mentioned, if
valid and applicable, would
have on the plaintiff's proposed activities, I see
no reason to doubt the correctness of the concessions made, and hold that the
plaintiff has the necessary standing to raise the question relating to the
constitutional position of Darnley Island. (at p7)
4. The question whether Darnley Island forms part of the State of Queensland depends on where the boundaries of the Colony of Queensland were drawn at Federation. Once Queensland became part of the Commonwealth, its boundaries could be altered only in the manner permitted by the Constitution, and in particular by s. 123. It is clear that no such alteration has occurred, and that the boundaries of the State of Queensland remain the same as those which the Colony of Queensland had at 1 January 1901. The boundaries of Queensland were originally drawn by Letters Patent dated 6 June 1859 which separated from New South Wales part of the territory of that colony and erected it into a separate colony, to be called the Colony of Queensland. The area so separated lay to the north of a line which commenced on the sea coast at Point Danger and included "all and every the adjacent islands their members and appurtenances in the Pacific Ocean". The "adjacent" islands in the Pacific Ocean had been included in the territory of New South Wales by the commissions issued to Governor Phillip in 1786 and 1787 (Historical Records of Australia, Series 1, vol. 1, pp. 1-8) and thereafter by other instruments, including s. 46 of the New South Wales Constitution Act which received the royal assent pursuant to the authority of 18 & 19 Vict. c. 54 (1855). As will appear, it is unnecessary in the present case to determine what islands were "adjacent", but it may be mentioned that that vague expression appears at one time to have been given a very wide meaning. The Act 34 George III c. 45 (1794) had described Norfolk Island as an island "adjacent to the said eastern coast of New South Wales", although that island is about 900 miles from the coast, and it appears to have been thought during the first decade of the nineteenth century that Tasmania, New Zealand and even Tahiti were "adjacent" to New South Wales (see Professor Lumb: The Maritime Boundaries of Queensland and New South Wales (1964), University of Queensland Papers, vol. 1 no. 4, pp. 4- 5). Obviously this view did not prevail, but it is unnecessary to consider the question, because for present purposes I am content to assume that Darnley Island was neither in the Pacific Ocean nor "adjacent" to the coast of New South Wales, and that it was not included in the Colony of New South Wales at 1859. On that assumption, it did not become part of Queensland when that colony was constituted, because the Letters Patent of 1859 did not include in Queensland anything that was not part of New South Wales, and indeed, consistently with the Acts 5 & 6 Vict. c. 76 (1842), s. 51; 13 & 14 Vict. c. 59 (1850), s. 34; and 18 & 19 Vict. c. 54, s. 7, could not have erected into a separate colony any territory that was not, or at least was not reputed to have been, comprised within the Colony of New South Wales. (at p8)
5. Letters Patent dated 13 March 1862, passed under the authority of the Australian Colonies Act 1861 (24 & 25 Vict. c. 44), annexed to the Colony of Queensland so much of the Colony of New South Wales as lay to the northward of the 26th parallel of south latitude, and between the 141st and 138th meridians of east longitude, "together with all and every the adjacent islands, their members and appurtenances in the Gulf of Carpentaria". Of course, this annexation was of territory far removed from Darnley Island, but it will be necessary to mention it again in relation to the effect of certain Letters Patent passed on 29 October 1900. (at p9)
6. A more material alteration to the boundaries of the colony occurred in 1872. It appears that in 1865 the Governor of New South Wales had, pursuant to commissions issued to him, granted a lease of Raine Island, which lies about 60 miles from the coast of Cape York Peninsula, for the purpose of extracting guano deposits (see Lumb, op. cit., p. 7). The Imperial authorities had taken the view that this and other islands in respect of which application had been made for guano leases or licences were not within the limits of any Australian government (O'Connell & Riordan: Opinions on Imperial Constitutional Law (1971), pp. 265-6) but subsequently acceded to representations made by Queensland that its boundaries should be extended to include islands lying within 60 miles of the coast (Cumbrae-Stewart: The Boundaries of Queensland (1930), pp. 9-10). By Letters Patent dated 30 May 1872, Queen Victoria appointed the Governor of Queensland to be the Governor of "all the Islands lying and being within 60 miles of the coasts of the said Colony", and further declared that "if at any time hereafter the Legislative Council and Assembly of the said Colony of Queensland shall, by resolution or otherwise, request the said Governor of the said Islands to transfer the same to the said Colony of Queensland, for the purpose of their being annexed to and forming part of the said Colony, then the said Governor shall, and he is hereby authorised and empowered to transfer to the said Colony the said Islands; and from and after the date of such transfer the said Islands so transferred shall be deemed and taken to be, and shall be, annexed to and form part of the said Colony of Queensland". The necessary resolutions were passed by the two chambers of the Queensland legislature, and by a deed poll and a proclamation, each dated 22 August 1872, the Governor transferred to the Colony of Queensland all the islands lying and being within 60 miles of the coast of the colony, and declared that from and after the date of the transfer the islands were to be deemed and taken to be and were annexed to and formed part of the Colony of Queensland. The plaintiff submits that these Letters Patent were ineffective to alter the boundaries of Queensland, but that question is not directly relevant, since Darnley Island is not within 60 miles of the coast of Queensland. (at p9)
7. On 10 October 1878 Queen Victoria passed further Letters Patent which,
according to their heading, were passed "for the rectification
of the Maritime
Boundary of the Colony of Queensland" and for the annexation to that colony of
certain islands lying in Torres Strait.
The material part of the Letters
Patent read as follows:
"Whereas it is expedient that certain islands in Torres Straits, and
lying between the Continent of Australia and Island
of New Guinea, that is
to say, all Islands included within a line drawn from Sandy Cape northward
to the south-eastern limit
of Great Barrier Reefs, thence following the
line of the Great Barrier Reefs to their north-eastern extremity . . .
thence in
a north-westerly direction . . . . Now We do, by these Our
Letters-Patent, under the Great Seal of Our United Kingdom of
Great
Britain and Ireland, authorise Our Governor for the time being of Our said
Colony of Queensland, by Proclamation under
his hand and the public seal
of the said Colony, to declare that, from and after a day to be therein
mentioned, the said Islands
shall be annexed to and form part of Our said
Colony. Provided always that Our said Governor issues no such Proclamation
as aforesaid until the Legislature of Our said Colony of Queensland shall
have passed a law providing that the said Islands
shall, on the day
aforesaid, become part of Our said Colony, and subject to the laws in
force therein."
According to Professor Cumbrae-Stewart (op. cit., p. 11) the occasion for
these Letters Patent was that the inhabitants of certain
islands in Torres
Strait beyond 60 miles from the coast had no protection against violence,
whether by white settlers or from natives,
and in addition the islands
provided bases for those intent on evading the revenue and immigration laws of
Queensland. However, the
line drawn by the Letters Patent includes many
islands which do not lie within Torres Strait - it commences at Sandy Cape, on
the
north coast of Fraser Island, more than 1,000 miles from Torres Strait,
and follows the line of the Barrier Reef northward. It is
unnecessary to
resolve the question whether the intention expressed in the Letters Patent was
that only islands which were both in
Torres Strait and within the defined line
were to be annexed, or whether, for the purposes of the Letters Patent,
"Torres Straits"
was given an enlarged and artificial meaning to include all
the waters within the defined line. Darnley Island is within Torres Strait
and
within the line drawn by the Letters Patent, and on any view is one of the
islands to which the Letters Patent apply. Another
difficulty created by these
Letters Patent arises from the fact that the line which they draw is, at some
places, and over a considerable
distance, much closer to the coast than 60
miles. It is not clear whether there are any islands outside the line drawn by
the Letters
Patent of 1878 but within 60 miles of the coast, but the intention
of the Letters Patent of 1878 was to annex additional islands
rather than to
relinquish dominion over islands already within the colony, so that if there
are any islands between the two boundary
lines it would appear that they were
intended to remain within the colony. (at p11)
8. The legislature of Queensland did pass a law providing that the islands described in the schedule - which followed the words of the Letters Patent - should, from and after such day as the Governor should by such proclamation as was authorized by the said Letters Patent mention and appoint for that purpose, be annexed to and form part of the Colony of Queensland and should be and become subject to the laws in force therein: The Queensland Coast Islands Act of 1879 (Q.). Thereafter, on 18 July 1879, the Governor of Queensland issued a proclamation whereby he notified and proclaimed that as from 1 August 1879 the islands in question should be annexed to and become part of the Colony of Queensland and should be and become subject to the laws in force therein. (at p11)
9. If these instruments were valid, it is clear that Darnley Island was
annexed to and became part of Queensland. However, the submission
advanced on
behalf of the plaintiff is that the Letters Patent of 1878 were invalid and
ineffective. The plaintiff did not challenge
the correctness of the statement
of Diplock L.J. in Post Office v. Estuary Radio Ltd. (1968) 2 QB 740, at p 753
, which I cited with
approval in New South Wales v. The Commonwealth [1975] HCA 58; (1975)
135 CLR 337, at p 388 :
"It still lies within the prerogative power of the Crown to extend its
sovereignty and jurisdiction to areas of land or sea
over which it has not
previously claimed or exercised sovereignty or jurisdiction. For such
extension the authority of Parliament
is not required."
Therefore, it was not doubted that before the enactment of the Colonial
Boundaries Act 1895 (Imp.), the Crown had power to alter
by Letters Patent the
boundaries of any colony provided that the colony had not been granted
self-government and that its boundaries
had not been defined by or under an
Imperial statute. However, it was contended on behalf of the plaintiff that
the position was
different once the colony had been granted self-government,
or its boundaries had been defined by or under an Imperial statute. The
arguments upon which the plaintiff relied were in substance the same as those
whose acceptance by the law officers advising the Colonial
Office led to the
passing of the Colonial Boundaries Act. It is a basic principle of
constitutional law, which was recognized in
Sammut v. Strickland (1938) AC
678, at p 704 , that once there has been a grant of representative
institutions to a colony, without
any reservation of the power of concurrent
legislation, the Crown is precluded from the exercise of the prerogative in
relation to
the colony so long as the representative institutions continue in
force. It would, however, seem a rather surprising result that
the Crown, by
granting a representative legislature to a colony, should thereby lose the
power to alter the boundaries of the colony
even with the consent of the
colonial legislature, and in 1866 the law officers advised the Colonial Office
that an alteration could
be made in these circumstances by a charter of the
Crown together with an Act of the local legislature. They disagreed with the
opinion
which had been expressed by a former Attorney-General, Sir Hugh
Cairns, that an Imperial Act was necessary (O'Connell & Riordan,
op. cit., pp.
273-275). The Full Court of Queensland, in Reg. v. Gomez (1880) 5 QSCR 189 ,
also considered that an Imperial Act was
not necessary, and held that the
Letters Patent of 1872 and 1878 had been effective to annex to Queensland the
islands to which they
referred. However, in 1894 the opinion of Sir Hugh
Cairns regained ascendencey within the Colonial Office, and the law officers
reported
that the Kermadec Islands could not be annexed to New Zealand without
an Act of the Imperial legislature (O'Connell & Riordan,
op.
cit., pp.
294-296). A similar opinion was given in relation to the Penguin Islands and
other territory attempted to be annexed
to
the Cape Colony (O'Connell &
Riordan, op. cit., pp. 296-298). The reasons for these opinions were that once
a constitution
had been
granted to a colony by an Imperial Act, or the
boundary of a colony had been fixed by an Imperial Act, the prerogative right
of the
Crown to alter the boundaries was lost. The colonial legislature could
not itself enlarge the boundary, because its enactments
could
not operate
extra-territorially. Therefore an Imperial statute was necessary. The Colonial
Office in 1895 stated that the same
reasoning
applied to Queensland, so that
the islands the subject of the Letters Patent of 1872 and 1878 had not become
part of Queensland,
although they had been effectively placed under its
administration (O'Connell & Riordan, op. cit., p. 299). (at p12)
10. In consequence of these opinions, and the difficulties which they were
thought to have revealed, the Colonial Boundaries Act
was passed. Section 1 of
that Act is in the following terms:
"1. (1) Where the boundaries of a colony have, either before or after
the passing of this Act, been altered by Her Majesty
the Queen by Order in
Council or letters patent the boundaries as so altered shall be, and be
deemed to have been from the date of
the alteration, the boundaries of the
colony.
(2) Provided that the consent of a self-governing colony shall be
required for the alteration of the boundaries thereof.
(3) In this Act 'self-governing colony' means any of the colonies
specified in the schedule to this Act."
The colonies named in the schedule included Queensland, New Zealand and Cape
of Good Hope. (at p13)
11. Before I turn to consider the arguments as to the validity of the Letters Patent and the effect of the Colonial Boundaries Act it is convenient to conclude the legislative history. The Commonwealth of Australia Act received the Royal Assent on 9 July 1900, although the Commonwealth of Australia did not come into existence until 1 January 1901. On 29 October 1900 Letters Patent were passed constituting the office of Governor of the State of Queensland and its dependencies in the Commonwealth of Australia. The preamble recites that by the Letters Patent of 6 June 1859 the Queen erected "certain territories therein described" into a colony by the name of the Colony of Queensland, and further that by the Letters Patent of 30 May 1872 and by proclamation and deed of transfer dated 22 August 1872 all islands within 60 miles from the coast of Queensland were annexed to and now form part of the Colony of Queensland. However, the Letters Patent of 1900 did not refer either to the Letters Patent of 13 March 1862, which extended the boundary of Queensland to the westward, or to the Letters Patent of 10 October 1878 and The Queensland Coast Islands Act of 1879. The Letters Patent of 29 October 1900 went on to declare that there should be "a Governor in and over Our State of Queensland and its Dependencies in the Commonwealth of Australia (comprising the Territories and Islands hereinbefore described)". The territories and islands thereinbefore described of course did not include those islands which were within the limits defined by the Letters Patent of 1878 but beyond 60 miles from the coast. By cl. 15 of the Letters Patent of 1900 it was directed that those Letters Patent should be read and proclaimed within the State of Queensland. They were so proclaimed on 1 January 1901. It was not until 1925 that the omission from the Letters Patent of 1900 was rectified. On 10 June 1925 further Letters Patent were passed constituting the office of Governor of the State of Queensland and its dependencies in the Commonwealth of Australia, comprising the territories and islands thereinbefore described. This time the Letters Patent did refer to the Letters Patent of 1862 and 1878 as well as to those of 1859 and 1872. (at p13)
12. It is now possible to state shortly the effect of the submissions advanced by the plaintiff in support of the contention that Darnley Island is not part of Queensland. The argument was that since Darnley Island was never part of New South Wales, it did not become part of Queensland in 1859, and can now be part of Queensland only if the Letters Patent of 1878 and The Queensland Coast Islands Act of 1879 were effective to bring about its annexation. It was submitted that since Queensland was a self-governing colony, and since in any case its boundaries had been fixed by or under the authority of an Imperial Act, it was not possible to alter its boundaries except by an Imperial Act, and that the Letters Patent of 1878 and The Queensland Coast Islands Act of 1879 were accordingly ineffective to annex to Queensland the islands to which those Letters Patent referred, so that those islands, although placed under the government of Queensland, did not become part of that colony. Then it was said that the Colonial Boundaries Act did not validate the alteration, because the boundaries of the colony had not been altered by the Letters Patent of 1878, but by the action of the Governor acting thereunder, and that the Colonial Boundaries Act had no application to an alteration of boundaries so effected. Alternatively it was submitted that if the plaintiff's primary contention was erroneous, and if it remained possible to alter the boundaries of Queensland without the authority of an Imperial Act, so that the boundary was effectively altered in 1879, the Letters Patent of 1900 effected a further alteration, and excluded from Queensland the islands that had been included in 1879. (at p14)
13. The first question for decision is whether Darnley Island formed part of
Queensland before the passage of the Colonial Boundaries
Act. The opinion that
the Crown could not exercise the prerogative of adding territory to a colony
which had been granted self-government,
notwithstanding that the legislature
of the colony had concurred in the exercise, seems very narrow and technical,
and reflects the
restricted, and in my opinion erroneous, view of colonial
legislative competence that was entertained by the Colonial Office during
the
nineteenth century. I have already discussed this question in Pearce v.
Florenca [1976] HCA 26; (1976) 135 CLR 507, at pp 514-520
and Robinson
v. Western Australian
Museum (1977) 138 CLR 283, at pp 303-305 . However, it is
of course a
different
matter if an Act of the Imperial
Parliament has fixed the limits of
the colony, for then it is understandable
that it should be thought
that the
effect of the Imperial
Act is both to supersede the prerogative and to render
void any colonial
law repugnant to such Act.
The Colonial Office considered
that this was the situation with regard to Queensland, and that "the islands
in question not having
been part of the Colony of New
South Wales were not
covered by the Statutory authority by which Her Majesty
was empowered to
separate
the northern portion of that
Colony and to erect into a new Colony
the portion so separated" (O'Connell
& Riordan, op. cit.,
p. 299). Before us a
different view
as to the extent of the "Statutory authority" was advanced on
behalf
of the Commonwealth. It
was submitted that the Australian Colonies
Act
1861 (24 & 25 Vict. c. 44) expressly gave power to the
Crown to annex new
territory
to any of the Australian colonies. That Act
recited in the preamble
the effect of certain earlier Acts,
including 5 & 6 Vict.
c. 76 which, by s.
51, gave power to Her Majesty
by Letters Patent "to define as to Her Majesty
shall seem
meet, the Limits of the
Colony of New South Wales, and to erect
into a
separate Colony or Colonies any Territories which now are,
or are
reputed to be, or
hereafter may be comprised within the said Colony
of New
South Wales", subject to a proviso now immaterial.
The preamble to the Act
of
1861 continues as follows:
"And whereas Doubts are also entertained whether it is competent to Her
Majesty by Letters Patent to annex to any existing
Colony any Part of New
South Wales which may be detached therefrom, or to detach from New South
Wales that Portion thereof which
lies between the Western Boundary of South
Australia and the One hundred and twenty-ninth Degree of East Longitude: And
whereas it
is expedient to set at rest all such Doubts as aforesaid, and
also to detach from New South Wales the last-mentioned Portion thereof,
and
to annex the same to South Australia."
Then s. 2 provides, inter alia, as follows:
"It shall be lawful for Her Majesty by such Letters Patent as aforesaid
to annex to any Colony which is now or may hereafter
be established on the
Continent of Australia any Territories which, in exercise of the Powers
herein-before mentioned, might have
been erected into a separate Colony."
The marginal note to s. 2 reads as follows: "Power to annex to existing
Colonies Territories now Part of New South Wales."
The argument for the Commonwealth was that it would have been within the power
of the Crown under 5 & 6 Vict. c. 76 so to define
the boundaries of New South
Wales as to include the islands in question, and then to erect those islands
into a separate colony.
Therefore, it was submitted, the islands, being
territories which "might have been erected" into a separate colony, could
validly
be annexed to any existing colony under the powers given by s. 2. Of
course, the preamble and the marginal note suggest that the
section was
intended to have a narrower meaning. However, if the words of the section are
plain and unambiguous their meaning cannot
be cut down by reference to the
preamble: Bowtell v. Goldsbrough, Mort & Co. Ltd. [1905] HCA 60; (1905) 3 CLR 444, at p 451
.
It is unnecessary
to consider whether it is ever possible to take account of a
marginal note in construing
an Imperial Act passed
in 1861, or to canvass
the
different expressions of opinion as to the use of marginal notes which are to
be
found in Reg. v. Schildkamp
(1971) AC 1, at
pp 10, 20, 28 , for on any view
the terms of a marginal note cannot lead the court to
depart from the ordinary
meaning
of the words
of a section which are unambiguous and are not
inconsistent with any other provision
of the statute. It may be mentioned
in
passing
that the statement in Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557,
at p 577 , that it is not permissible
to have regard to a marginal
note, was
of course made with reference to
the construction of a Commonwealth statute,
and in the light
of s. 13(3) of the Acts Interpretation
Act (Cth). I would
hold that the words of s. 2 should be given their ordinary meaning, and
that
so read they authorized the issue
of the Letters Patent of 1878. It follows
that
in my opinion Darnley Island became part of
Queensland on 1 August 1879.
(at p16)
14. In my opinion, even if the passing of the Letters Patent of 1878, and of The Queensland Coast Islands Act of 1879, did not result in the annexation of the islands within the line drawn by those instruments, the effect of the Colonial Boundaries Act was that the islands were deemed to be part of the colony. On behalf of the plaintiff it was submitted that this Act had no application to the attempted annexation on 1 August 1879. It was not disputed that the annexation, if valid, would have resulted in an alteration to the boundaries of the colony within the meaning of the Act, but it was submitted that the boundaries would have been altered, not by the Queen by Letters Patent, but by the Governor acting under the authority of the Letters Patent, or by the enactment of The Queensland Coast Islands Act of 1879, and that the Colonial Boundaries Act only deemed valid an alteration effected by the Queen directly. In support of this submission reliance was placed on the fact that the Letters Patent of 1878 did not expressly state that the islands should be annexed to and form part of Queensland, and indeed did not specify a date as from which the islands were to become part of the colony. In this respect the form of the Letters Patent of 1878 differed from that of the Letters Patent of 1872, a matter which was regarded as being of possible significance in Cantley v. Queensland (1973) 47 ALJR 538, at p 540; 1 ALR 329, at p 333 . On the other hand, the proclamation of the Governor did declare that as from 1 August 1879 the islands should be annexed to and become part of the Colony of Queensland. However, the Letters Patent of 1878 authorized the Governor to declare that the islands should be annexed. Although the Letters Patent do not expressly say so, the necessary implication is that once the Governor did so declare (provided of course that the legislature of Queensland had passed the necessary legislation) the islands would be annexed. The Governor had no power to effect an annexation, and was given none by the Letters Patent; the making by him of a proclamation merely satisfied one of the conditions which had to be satisfied before the annexation authorized by the Letters Patent became effective. The alteration of the boundaries was effected not by the Governor, but by the Queen by the Letters Patent and by the Act of the colonial legislature in conjunction. By force of s. 1 of the Colonial Boundaries Act, the boundaries of Queensland, as drawn by the Letters Patent of 1878, were deemed to have been from 1 August 1879 the boundaries of the colony, even if as a matter of law they had not been its boundaries before that Act was passed. (at p17)
15. If it be thought that the words of the Colonial Boundaries Act are ambiguous, it becomes permissible to ascertain the mischief and defect for which the existing law did not provide, and for that purpose it is permissible to have regard to the facts which must be taken to have been within the knowledge of the Imperial Parliament when the Act was passed: Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. [1908] HCA 89; (1908) 5 CLR 737, at p 745 . The Parliament must be taken to have had before it the opinions of the advisors to the Colonial Office which showed that it was thought that annexations of territory to certain colonies were of doubtful validity. The annexations as to which doubts were particularly entertained were those of the Kermadec Islands to New Zealand, the Penguin Islands to the Cape Colony and the islands described in the Letters Patent of 1872 and 1878 to Queensland. It is abundantly clear that the mischief which the Act was intended to remedy was that certain annexations of territory to colonies, including the annexation of the islands to Queensland, were of doubtful validity. When regard is had to the circumstances existing at the time when the Colonial Boundaries Act was passed any possible doubt as to the intention of the Parliament is removed, and the conclusion is confirmed that the intention of the Act was to validate (inter alia) the alteration of the boundaries of Queensland effected in 1879 as well as in 1872. (at p18)
16. Then it becomes necessary to consider the argument advanced on behalf of
the plaintiff that if the annexation of the islands
in 1879 had been
effective, the Letters Patent of 29 October 1900 again amended the boundaries
of Queensland and excised from that
colony the territories that had been added
in 1862 and 1879. In advancing this argument, the plaintiff is met with an
intial difficulty.
Section 8 of the Commonwealth of Australia Constitution Act
provides as follows:
"After the passing of this Act the Colonial Boundaries Act, 1895, shall
not apply to any colony which becomes a State of the
Commonwealth; but the
Commonwealth shall be taken to be a self-governing colony for the purposes
of that Act."
The Commonwealth has never consented to any relevant alteration of its
boundaries and the condition laid down by s. 1(2) of the Colonial
Boundaries
Act has therefore not been satisfied. The plaintiff sought to overcome this
difficulty by the ingenious argument that
after 9 July 1900, when the
Commonwealth of Australia Constitution Act was passed, the Colonial Boundaries
Act no longer applied to the Colony of Queensland, by reason of the first
clause of s. 8
of the former Act, but that since the Commonwealth did not come
into existence until 1 January 1901 there was between 9 July 1900
and 1
January 1901 no self-governing colony in Australia to which the Colonial
Boundaries Act applied. Therefore, it was submitted,
the Crown could, in the
exercise of its prerogative power, during that time effect an alteration to
the boundary of an Australian
colony. It seems most unlikely that s. 8 was
intended to have such an effect, but for two reasons it is unnecessary to
explore further
the subtleties of the plaintiff's argument. In the first
place, the Letters Patent of 29 October 1900 did not take effect until 1
January 1901. By s. 2 of the Colonial Letters Patent Act 1863 (26 & 27 Vict.
c. 76) it was provided as follows:
"No such Letters Patent" (that is, Letters Patent intended to take
effect within Her Majesty's colonies and possessions
beyond the seas)
"hereafter to be made shall (unless otherwise provided therein or by other
lawful Authority) take effect
in any such Colony or Possession until the
making of the same shall have been signified therein by Proclamation or
other public
Notice."
The Letters Patent of 29 October 1900 did not provide that they should take
effect before they were proclaimed, but on the contrary
stated that the
earlier Letters Patent constituting the office of Governor should be revoked
from and after the proclamation which
was directed to be made by cl. 15. In
fact they were proclaimed by the Governor on 1 January 1901, and accordingly
took effect on
that date, by which time, of course, the Commonwealth had come
into existence, and the consent of the Commonwealth Parliament was
required to
any alteration of the boundaries. Further, in any case, it is apparent that
the Letters Patent of 1900 were not intended
to alter the boundaries of
Queensland. New Letters Patent constituting the office of Governor became
necessary once the constitutional
position of the colony altered when it
became a State of the Commonwealth. The purpose of the Letters Patent was to
constitute the
office of Governor and not to alter the boundaries. It is true
that the boundaries of Queensland were misdescribed in the Letters
Patent, but
that did not mean that they were thereby altered. No intention to alter them
appears. The argument that it was intended
by the Letters Patent of 1900 to
ensure that only those islands within the boundary drawn in 1872 should be
part of Queensland loses
its force when it is remembered that the Letters
Patent omitted to mention not only the Letters Patent of 1878 but also the
Letters
Patent of 1862 which had included land territories to the west of the
colony. The Letters Patent of 1900 therefore did not effect
any alteration of
the boundaries of Queensland. (at p19)
17. For these reasons I have reached the conclusion that Darnley Island has been a part of Queensland since 1st August 1879 and is still part of Queensland. (at p19)
18. Once this conclusion is reached, it becomes unnecessary to answer questions (c) and (d). As to question (e), it should be mentioned that counsel for the defendants did not press for an order for costs against the plaintiff. (at p19)
19. I would answer the questions in the case stated as follows: (a) Yes, in so far as the relief is sought in respect of Darnley Island; (b) Yes; (c) Not necessary to answer; (d) Not necessary to answer; (e) There should be no order as to costs. (at p19)
MASON J. The plaintiff's case is that the Letters Patent of 10 October 1878 and the Proclamation made on 18 July 1879 were ineffective to annex the Torres Strait Islands outside the sixty-mile limit so as to incorporate them as part of the Colony of Queensland. This case rests on the submission that the boundaries of a colony which has been granted representative institutions cannot be altered by an exercise of prerogative power whilst the grant of representative institutions continues in force. This submission reflects, partly but by no means wholly, the view expressed in the law officers' opinions which led to the passing of the Colonial Boundaries Act 1895 (Imp.), in particular the report of John Rigby and R.T. Reid dated 25 August 1894 relating to the annexation of the Kermadec Islands - see O'Connell & Riordan: Opinions on Imperial Constitutional Law (1971), pp. 294-296. Their view was based on two propositions, one of which, as we shall see, can no longer be sustained. (at p20)
2. The report of the Law Officers of 25 August 1894 was in substance a restatement of the opinion of Sir Hugh Cairns Q.C. (later Lord Cairns L.C.) when Attorney-General in 1866 - see O'Connell and Riordan, pp. 273-275. His opinion had been displaced in the intervening years by another view favoured by successive law officers, including Sir John Rolt, Sir Raymond Collier and Sir John Coleridge. According to them, the boundaries of a colony having representative institutions could be extended by Letters Patent under the prerogative, with the assent of the colonial legislature, so as to include new territory as part of the colony. The Imperial Government acted on this opinion in making a number of annexations including that of the Torres Strait Islands, the Kermadec Islands and the Penguin Islands which were included in the Cape of Good Hope. It was the realization that colonial laws were subordinate to Imperial statutes that generated doubts as to the effect of these annexations and revived the opinion of Sir Hugh Cairns. (at p20)
3. The two propositions on which the report of 25 August 1894 was based were: (1) that as the laws made by a colonial legislature did not have an extra-territorial operation they could not bring about an annexation; at most they evidenced colonial assent to an annexation; (2) that once representative institutions had been granted to a colony, the prerogative power to make laws for the colony could not be exercised so long as the grant of representative institutions continued in force. (at p20)
4. The two propositions naturally led to the conclusion that where an Imperial Act had established a constitution within certain boundaries, neither the colonial legislature, nor an exercise of the prerogative power, could extend the boundaries of the colony by including other territory so as to make it subject to the constitution granted to the colony as, for example, by including the new territory within a province or electoral division of the colony. It was, however, conceded that it was permissible for the Crown by Letters Patent under the prerogative to annex a new territory and place it under the administration of the Governor of a colony to whom representative institutions had been granted. This course was justified on the ground that merely to place the new territory under the administration of the Governor of the colony was not to incorporate it as part of the colony and thereby extend the boundaries of the colony. (at p21)
5. The course of recent decisions in this Court denies the validity of the first proposition. Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 , New South Wales v. The Commonwealth (the Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337 , Pearce v. Florenca [1976] HCA 26; (1976) 135 CLR 507 and Robinson v. Western Australian Museum (1977) 138 CLR 283 now demonstrate that the colonies could in the nineteenth century make laws which had an extra-territorial operation. The contrary view was founded not so much on judicial decision as on doctrines which gained currency in the opinions of the Imperial law officers and reflected Great Britain's Imperial, maritime and trading interests. The strength and persistence of the traditional view is attested by the declaration in s. 3 of the Statute of Westminister 1931 (Imp.) that the Dominions (but not the States or Provinces) had power to enact extra-territorial legislation. To the historian it may seem strange that we can now enunciate the law in terms diametrically opposed to informed legal thinking in the nineteenth and the early part of this century. Our ability to do so rests on a clearer perception of what essentially was involved in the grant of power to make laws for the peace and good government of a colony, uninfluenced by restrictive considerations not expressed in the grant of power itself. (at p21)
6. The second proposition is supported by the decision of the Privy Council in Sammut v. Strickland (1938) AC 678, at pp 702-704 . There it was held that once there had been a grant of representative institutions to a colony without any reservation of the prerogative power to legislate concurrently, the prerogative power could not be exercised so long as the representative institutions continued in force. The effect of the principle according to Lord Maugham L.C. (1938) AC, at p 706 is that the prerogative "right to legislate in relation to local matters was . . . suspended", whilst the grant of representative institutions continued in force, for the reason indicated by Lord Mansfield in Campbell v. Hall [1774] EngR 5; (1774) 1 Cowp 204, at p 213 [1774] EngR 5; (98 ER 1045, at p 1050) that so to legislate, would be "contradictory to, and a violation" of the instrument granting the powers. (at p21)
7. At this stage it is necessary to note that an annexation was an act of State undertaken in the exercise of the prerogative. The rule recognized in Sammut v. Strickland did not inhibit annexation by an exercise of the prerogative; at most it precluded the incorporation of the annexed territory in an existing colony having representative institutions without appropriate legislative authority. (at p22)
8. The question then is: was The Queensland Coast Islands Act of 1879, an enactment of the Colony of Queensland, sufficient legislative authority? Given that the Act was passed in exercise of the power to make laws for the peace, order and good government of Queensland, granted by s.2 of the Queensland Constitution Act of 1867 (Imp.), the answer depends on the resolution of another question: was the Act repugnant to the Imperial statutes authorizing the establishment of the Colony of Queensland and fixing its boundaries (Colonial Laws Validity Act 1865 (Imp.),s. 2)? (at p22)
9. Section 51 of An Act for the Government of New South Wales and Van Diemen's Land 1842 (5 & 6 Vict. c. 76) authorized Her Majesty by Letters Patent to define the limits of the Colony of New South Wales and "To erect into a separate Colony or Colonies any Territories which now are, or are reputed to be, or hereafter may be comprised within the said Colony of New South Wales". Further authority to establish a separate colony was conferred by s.34 of An Act for the Better Government of Her Majesty's Australian Colonies 1850 (13 & 14 Vict. c.59) which provided that Her Majesty might upon the petition of "the Inhabitant Householders" in any territories north of 30 degrees S latitude "detach such Territories from the Colony of New South Wales, and to erect such Territories into a separate Colony or Colonies, or to include the same in any Colony or Colonies to be established under the" powers conferred by 5 & 6 Vict. c. 76. Subsequently s. 7 of the NSW Constitution Act 1855 (18 & 19 Vict. c. 54) authorized Her Majesty by Letters Patent "to erect into a separate Colony or Colonies any Territories which may be separated from New South Wales" by alteration of its northern boundary. Apart from the reference in s.34 of the Act of 1850, these Acts said nothing about the later alteration of the boundaries of a colony once it was established. (at p22)
10. The preamble to the Act 24 & 25 Vict. c. 44 (1861), after reciting the
statutory provisions to which I have referred, went
on
to recite:
"And whereas Doubts are also entertained whether it is competent to Her
Majesty by Letters Patent to annex to any existing
Colony any Part of New
South Wales which may be detached therefrom . . . "
and to state that it was expedient to set such doubts ar rest. (at p22)
11. It was to this situation that s.2 was directed. The section provided:
"It shall be lawful for Her Majesty by such Letters Patent as aforesaid
to annex to any Colony which is now or may hereafter
be established on the
Continent of Australia any Territories which, in exercise of the Powers
herein-before mentioned, might have
been erected into a separate Colony
. . . ". (at p23)
12. It has been said that where the enacting part of a statute is clear and
unambiguous it cannot be cut down by the preamble. But
this does not mean that
a court cannot obtain assistance from the preamble in ascertaining the meaning
of an operative provision.
The particular section must be seen in its context;
the statute must be read as a whole and recourse to the preamble may throw
light
on the statutory purpose and object. There is, however, one difficulty
in seeking to restrict the generality of the operative provision
by reference
to a suggested restriction expressed in the preamble: it is that Parliament
may intend to enact a provision which extends
beyond the actual problem sought
to be remedied. Recognition of this difficulty led Viscount Simonds in
Attorney-General v. Prince
Ernest Augustus of Hanover (1957) AC 436, at p 463
to say "that the context of the preamble is not to influence the meaning
otherwise
ascribable to the enacting part unless there is a compelling reason
for it". See also pp. 460-461, 462-463. (at p23)
13. It seems to me that the reference to "any Territories" in s. 2 is readily susceptible of the interpretation "any Territories being part of New South Wales". Indeed, when we have regard to the provisions recited in the preamble which gave power to create a separate colony or colonies by detaching territory which formed part of, or was reputed to form part of, New South Wales it seems evident that this is the correct interpretation of s. 2. The preamble not only identifies the problem which the statute sought to remedy, it also shows us that the expression "any Territories" in s. 2 meant "any Part of New South Wales which may be detached therefrom" in exercise of the powers referred to. (at p23)
14. Those powers, as we have seen, enabled Her Majesty to form a separate colony or colonies by detaching a part or parts of New South Wales. The terms in which authority was given by s. 2 to annex any territories which in exercise of those powers might have been erected into a separate colony rather indicate that the power to annex was limited to territories which might be detached from New South Wales under those powers and that it did not extend to territories which might have been incorporated in New South Wales but were not so incorporated. Had Parliament intended the power to extend to territories whether they formed part of that Colony or not I should have thought that it would take the trouble to say so, instead of including the adjectival clause which follows the word "Territories", a clause which appears to be quite redundant if the Commonwealth's construction be accepted. It is more sensible to read s. 2 as having a more limited operation, resolving the doubt expressed in the preamble which had arisen from the failure of the earlier statutes to make any mention of subsequently annexing part of New South Wales to a colony earlier separated from New South Wales. (at p24)
15. Accordingly, reading the 1861 Act as a whole and giving effect to its expressed object and purpose, I am unable to read s. 2 as authorizing annexation to the Colony of Queensland, of territories which at no time formed part of New South Wales. (at p24)
16. However, to say that s. 2 did not authorize the annexation of the Torres Strait Islands, is not to say that the 1861 Act or the earlier statutory provisions which it recited prohibited the annexation to Queensland of territories not forming part of New South Wales. I am unable to see any basis for the implication of such a prohibition. Essentially the problem is one of power, not of prohibition. Consequently, there is no repugnance between The Queensland Coast Islands Act of 1879 and earlier Imperial statutes, the Queensland legislature having power under s. 2 of the Constitution Act of 1867 to incorporate within the Colony additional territory annexed by Her Majesty. (at p24)
17. In the result The Queensland Coast Islands Act of 1879 was not repugnant to the provisions of any Imperial statute. It can be read as conferring authority for the incorporation within Queensland of the Torres Strait Islands. (at p24)
18. In any event s. 1 of the Colonial Boundaries Act 1895 validated the alteration of boundaries made in 1879 which included the Torres Strait Islands in the Colony of Queensland. Section 1 (1) provided that "Where the boundaries of a colony have . . . been altered by Her Majesty the Queen by Order in Council or Letters Patent the boundaries as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the colony." Section 1(2) required the consent of a self-governing colony to make the alteration of boundaries effective. Section 1 (3) provided that the reference to "self-governing colony" meant any of the colonies specified in the Schedule to the Act. They included the Australian colonies, New Zealand, the Cape of Good Hope and Natal. (at p24)
19. The words "altered by" are sufficiently large in scope to catch up an alteration of boundaries brought about by Letters Patent and proclamation, the proclamation being authorized by the Letters Patent in association with a law of the local legislature providing that the new territory should become part of the colony from the date mentioned in the proclamation. The factors referred to by Gibbs C.J. in his reasons for judgment support the conclusion that what occurred was an alteration of the boundaries of the colony of Queensland "by Her Majesty the Queen by . . . letters patent" within the meaning of the Colonial Boundaries Act. (at p25)
20. In construing s. 1 it is permissible to have regard to the mischief to which the Act was directed. Generally speaking, reference cannot be made to what is said in Parliament for the purpose of interpreting a statute. But in my opinion there are grounds for making an exception for the case where a bill is introduced to remedy a mischief. Then, to have regard to the purpose for which the legislation was enacted as stated by the Minister in charge of the bill would conform to the rule that extrinsic material is admissible to show the mischief which the statute is designed to remedy. I acknowledge that the inadmissibility of Parliamentary debates, as an aid to the construction of statutes is supported by powerful authority. (See generally Bitumen and Oil Refineries (Australia) Ltd. v. Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 ; Australasian United Steam Navigation Co. Ltd. v. Hiskens [1914] HCA 56; (1914) 18 CLR 646, at p 672 ; South Australia v. The Commonwealth [1942] HCA 14; (1942) 65 CLR 373 ; South Australian Commissioner for Prices and Consumer Affairs v. Charles Moore (Aust.) Ltd. [1977] HCA 38; (1977) 139 CLR 449 ; Davis v. Johnson [1978] UKHL 1; (1979) AC 264 .) But there is a case for treating the Minister's statement, particularly when it is not contested, as cogent evidence of the mischief aimed at, evidence certainly as cogent as the extrinsic materials from which the court would draw an inference in many cases. (at p25)
21. In Assam Railways and Trading Co. v. Commissioners of Inland Revenue (1935) AC 445, at p 458 Lord Wright noted: ". . . that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the Report of Commissioners is even more removed from value as evidence of intention, because it does not follow that their recommendations were accepted." But his Lordship went on to refer to Lord Halsbury L.C.'s use of the Report of a Commission in Eastman Photographic Materials Co. v. Comptroller-General of Patents, Designs, and Trade Marks (1898) AC 571, at p 575 because there was "no more accurate source of information as to what was the evil or defect which the Act . . . was intended to remedy" (1935) AC, at pp 458-459 . As Elmer A. Driedger points out in The Construction of Statutes, pp. 130-131, the Minister's speech should be admissible for the same purpose. (at p26)
22. There is some support in the cases for this view. In In re Mew and Thorne (1862) 31 LJ Bk 87, at p 89 Lord Westbury referred to the report of a commission and to the speech of the member who introduced the legislation into the House of Commons and stated that he did so in order to ascertain the object to which the relevant provision was directed, having earlier noted that the court needed to ascertain the mischief or evil which existed under the antecedent law. In T. M. Burke Pty. Ltd. v. City of Horsham [1958] VicRp 35; (1958) VR 209, at pp 216-217 , Sholl J. referred to the Victorian Hansard to show that a provision amending the Local Government Act 1949 was introduced to remove a particular doubt. See also Griffith C.J. arguendo in Municipal Council of Sydney v. The Commonwealth [1904] HCA 50; (1904) 1 CLR 208, at pp 213-214 ; Lord Denning M.R. in Sagnata Investments Ltd. v. Norwich Corporation (1971) 2 QB 614 at pp 624 ; P. Brazil "Legislative History, Statutes and Construction", University of Queensland Law Journal, vol. 4 (1961), 1, esp. at pp. 12- 14; Pearce, Statutory Interpretation in Australia (1974), pars. 67, 219. (at p26)
23. In the United States of America where admittedly the courts make a much more generous use of legislative materials including debates, the established rule is: ". . . that debates, although inadmissible as evidence of legislative meaning, may be resorted to as evidence of the situation or 'evil' which led to the adoption of the statute in question . . . ". (Sutherland Statutes and Statutory Construction, 4th ed. (1974), vol. 3, p. 562; The Tap Line Cases (1914) 234 US 1, at p 27 (58 L Ed 1185, at p 1195) ; Standard Oil Co. v. United States [1910] USSC 113; (1911) 221 US 1, at p 50 (55 L Ed 619, at p 641) ). (at p26)
24. The Colonial Boundaries Bill was introduced in the House of Lords by the
Marquess of Ripon at the request of the Minister. The
Marquess of Ripon then
stated ((1895) House of Lords Hansard vol. 35, at p. 47):
"Some time ago the law officers of the Crown gave an opinion that there
were doubts as to the legality of certain small annexations
to some of our
colonies. The doubts had reference chiefly to certain colonies, the
boundaries of which are defined by Acts of Parliament.
The Law Officers
thought it was doubtful whether the boundaries so defined could be altered,
either by contraction or expansion,
without an Act of Parliament. Some small
islands have been added to New Zealand; and the boundaries of some
Australian colonies have
been altered. The doubts relate to cases of that
kind. The Bill is urgent in this sense, that questions of the kind having
been once
raised as to the legality of certain proceedings, it is of the
greatest possible importance to put an end to those doubts without
delay."
(at p27)
25. If the plaintiff's submission were to be accepted, then the consequence would be that the Colonial Boundaries Act would have no application to the annexations of the Torres Strait Islands, the Kermadec Islands and the Penguin Islands where the procedure followed was that of Letters Patent authorizing a proclamation accompanied by an Act of the local legislature. Yet we know from the Schedule to the Colonial Boundaries Act and the law officer's opinions that the Act was aimed at the validation of these very annexations. (at p27)
26. I agree with the comments made by Gibbs C.J. on the effect of the Commonwealth of Australia Constitution and the Letters Patent issued on 29 October 1900. (at p27)
27. I would therefore answer the questions asked in the stated case in the manner proposed by the Chief Justice. (at p27)
MURPHY J. In the Treaty of Tordesillas (1494) the Portuguese and Spanish claimed to divide between them the non-European world (see Encyclopaedia Britannica (1969) vol. 20, p. 1094). Under this disposition the Eastern half of Australia and Darnely Island apparently belonged to Spain. The arrogance of the European powers continued into and throught the nineteenth century and the British were no exception. Around the world land was claimed under the false pretence that it was unoccupied or terra nullius (see Western Sahara Case (1975) ICJ 6 ; Cooper v. Stuart (1889) 14 App Cas 286, at p 291 ; Coe v. The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; 24 ALR 118 ). Islands off the Australian mainland were annexed or abandoned without reference to the inhabitants. The cavalier way in which the British authorities dealt with the affairs of the Australian colonies is evidenced by gross inconsistencies and ludicrous errors of geographical description in important State documents referred to in the hearing. (at p27)
2. The eighteenth century pretensions of the British authorities to make law for other peoples aroused resistance by the American colonies which culminated in the War of Independence. Although these pretensions (like those of the Stuart Kings) have been progressively modified and now seem unacceptable to many, they provide the basis of the assumptions on which this case was argued. The extent to which at the end of the nineteenth century the representative institutions in the colonies were autonomous, and other fundamental questions, were hardly explored. On these assumptions however, it follows that the application of the Colonial Boundaries Act 1895 (Imp.) disposes of the plaintiff's claim that Darnley Island is not part of Queensland. I agree with Mason J. that the colonies could in the nineteenth century make laws which had extra-territorial operation. The plaintiff has standing. (at p28)
3. I agree with the order proposed by the Chief Justice. (at p28)
AICKIN J. In this matter I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I am in agreement with the answers which he proposes to the various questions in the case stated. (at p28)
2. The first question in this stated case asks whether the plaintiff has locus standi to maintain the claims which he asserts in respect of Darnley Island. At the hearing before the Full Court, neither defendant sought to argue that the plaintiff did not have locus standi. In this respect they were plainly right for the claim which he makes falls clearly within the second category stated by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109 . That question should therefore be answered in the affirmative, in so far as it relates to Darnley Island. (at p28)
3. As to the second question, which asks whether Darnley Island is part of Queensland, I am in agreement with the reasons given by the Chief Justice for answering this question in the affirmative and there is nothing that I can usefully add. (at p28)
4. It follows from the answer to the second question that it is not necessary to answer the third and fourth questions. I agree that there should be no order as to costs. (at p28)
WILSON J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. With one reservation, I agree with those resaons. (at p28)
2. The reservation I have is with respect to the efficacy of the Letters Patent of 10 October 1878. The Chief Justice accepts, in my respectful opinion correctly, that the boundaries of the colony of Queensland having been determined under the authority of Imperial enactment, any charge to those boundaries by subsequent Letters Patent required similar authority. I am unable to find any such authority in this case. In particular, I do not think that it is supplied by the Australian Colonies Act 1861 (24 & 25 Vict. c. 44), s. 2. The preamble to that Act and its relevant provisions are set out in his Honour's reasons. Section 2 authorizes Her Majesty to annex to a colony "any Territories which, in exercise of the Powers herein-before mentioned, might have been erected into a separate Colony". It seems to me with respect, that the only territories which in exercise of the powers referred to could have been erected into a separate colony were territories which already formed part of New South Wales. Darnley Island did not form part of New South Wales, and therefore the authority conferred on the Crown by s.2 of the 1861 Act did not extend to it. I would reject the argument for the Commonwealth that because it was within the power of the Crown under earlier statutory authority to extend the boundaries of New South Wales so as to include Darnley Island (and presumably any other territory wheresoever situated) and then to erect that added territory into a separate colony, that territory was comprehended in the final phrase of s.2 of the 1861 Act. That argument, if correct, leads to the conclusion that s.2 authorized the annexation to an Australian colony of any territory at all. It renders the final phrase of the section redundant. I may add that I come to this conclusion on the construction of the section itself, rather than by reliance upon any considerations of the statutory intent which might be gleaned from the preamble or the marginal note. (at p29)
3. In my opinion, therefore, the Letters Patent of 10 October 1878 were insufficient authority for the annexation of Darnley Island to Queensland. Nor do I think that the lack of authority was overcome by the enactment by the colonial legislature of The Queensland Coast Islands Act of 1879. Although in terms that Act declared that on the appointed day the islands described in the Schedule (which included Darnley Island) "shall be annexed to and become part of the Colony of Queensland", its provisions must be construed in the context of the Letters Patent which required its passage as a condition precedent to the proclamation by the Governor declaring the islands to be annexed to and to form part of the colony. Its enactment represented no more than the consent of the colonial legislature to the annexation of territory that was intended to be effected by authority of the Letters Patent. Furthermore, the doctrine of colonial legislative incompetence to enact laws having extra-territorial effect which held sway during the nineteenth century militated against the discernment of any legislative intent to effect an extension of the boundaries of the colony by force of its own enactment. In any event, if such an effect were to be ascribed to the Act, it would be necessary to examine the question of its possible repugnancy to Imperial legislation, and also the question whether it was competent for the legislature to enact, as a law for the peace order and good government of Queensland, a law annexing an island ninety miles away from the mainland. But these interesting questions need not be pursued. (at p30)
4. The reasons of the Chief Justice make it clear that, whatever may have been the legal efficacy of the Letters Patent of 1878, the passage of the Colonial Boundaries Act 1895 (Imp.) placed the validity of the annexation beyond doubt. That statute therefore seals the fate of the plaintiff's claim. (at p30)
5. I would answer the questions in the case stated in the manner proposed by the Chief Justice. (at p30)
BRENNAN J. If the Letters Patent of 1878 and The Queensland Coast Islands Act of 1879 (Q.) failed in their purpose of authorizing the annexation of the islands therein mentioned to the Colony of Queensland, I agree, for the reasons stated by the Chief Justice, that the purported annexation of Darnely Island from and after 1 August 1879 was validated by the Colonial Boundaries Act 1895 (58 & 59 Vict. c. 34). It is not necessary for the purposes of answering question (b) in the case stated to determine the validity of the annexation of Darnley Island at the time when the island was purportedly annexed (that is, from and after 1 August 1879, the date mentioned in the proclamation of annexation made by the Governor of Queensland), or to specify the foundation upon which its validity at that time might have been upheld. (at p30)
2. For the reasons given by his Honour, I agree that from the time when Darnley Island became or is deemed to have become part of Queensland, that is, from and after 1 August 1879, it has remained part of Queensland, and I would answer the questions in the case stated as his Honour proposes. (at p30)
ORDER
Answer the questions in the case stated as follows:Question (a).