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Published online by Cambridge University Press: 24 January 2025
Questions relating to the Torres Strait Islands and the rights of their inhabitants have come before the High Court in the last decade. In one of these cases the High Court examined the constituent instruments by which the islands were annexed to Queensland in the nineteenth century. That case, Wacando v Commonwealth, established that Damley Island, which is situated about 92 miles north-east of Cape York Peninsula, was part of the Colony of Queensland and therefore within its boundaries at federation. The ratio of Wacando centred on the validating provisions of the Colonial Boundaries Act 1895 (Imp). There was however disagreement between various Justices in that case as to the effect of Imperial letters patent and local legislation passed in 1878 and 1879 which raised questions as to British constitutional law and practice relating to the annexation of new territory and the modification of colonial boundaries. These issues will be examined below.
1 Wacando v The Commonwealth (1981) 148 CLR 1 and Mabo v Queensland and Another (1988) 166 CLR 186. In the latter case, the High Court was concerned with s 3 of the Queensland Coast Islands Declaratory Act 1985 (Qld) which declared, inter alia, that upon the islands being annexed to Queensland, they were vested in the State Crown freed from all other rights etc. It was held that, on the assumption that the inhabitants of the Murray Islands (located in the north east region of the Torres Strait) could establish the traditional rights which they were claiming, the section of the State Act was inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth). The issue of the existence of the land rights is still before the courts. At the time of writing the Supreme Court of Queensland is determining questions of fact remitted to it by the High Court.
2 (1981) 148 CLR 1.
3 Infra text at nn 47-53.
4 The power to separate the northern portion of New South Wales was first inserted in the Australian Constitutions Act 1842 (Imp) s 51. With a modification as to the southern boundary of the territory to be separated, it was continued in the Australian Constitutions Act 1850 (Imp) s 34 and in the New South Wales Consutution Act 1855 (Imp) s 7. Scheduled to that latter statute was the local New South Wales Constitution Act 1855 (Imp) pursuant to which responsible government was granted to the Colony. Section 46 of that Act contained a delineation of the boundaries of the Colony. The present boundaries are set out in the Constitution Act 1902 (NSW) s 4.
5 The Letters Patent of 1859 are to be found in Acts and Laws Relating to the Constitution of the State of Queensland (1989) 10.
6 O'Connell, DP and Riordan, A, Opinions on Imperial Conslilulional Law (1971) 265-266Google Scholar.
7 Ibid 269-270.
8 Historical Records of Australia Series 1, Vol 1, 13. See generally, RD Lumb, The Maritime Boundaries of Queensland and New South Wales (University of Queensland Paper 1964) 4; AS Cumbrae-Stewart, The Boundaries of Queensland (University of Queensland Paper 1930) 5; and Burmester, H, “Outposts of Australia in the Pacific Ocean” (1983) 29 Australian Journal of Politics and History 14CrossRefGoogle Scholar.
9 Historical Xecords of Australia Series 1, Vol 1, 5.
10 New South Wales Government Gazette (1849) Vol 1, 117.
11 DP O'Connell and A Riordan, supra n 6, 269.
12 This expression of course referred, not to the coasts of Great Britain, but to the coasts of British colonies.
13 DP O'Connell and A Riordan, supra n 6, 269-70. Of course the Great Barrier Reef extends well into Torres Strait. From a geographical point of view the distinction between Barrier Reef islands and Torres Strait islands is difficult to maintain.
14 Ibid 270-271.
15 New South Wales Government Gazette (1863) Vol 2, 2669.
16 DP O'Connell and A Riordan, supra n 6, 266.
17 New South Wales Government Gazette (1868) Vol 2, 3184.
18 DP O'Connell and A Riordan, supra n 6, 282-284.
19 Ibid 284.
20 The large island of New Caledonia to which these islands were adjacent had been annexed by France in the 1850s.
21 On international law principles relating to claims of sovereignty over small uninhabited islands see “The Clipperton Island Arbitration” (1932) 26 American Journal of International Law 390.
22 Eg by Cook in 1770, Bligh in 1792, Flinders in 1803 and Blackwood in 1844-1845.
23 D P O'Connell and A Riordan, supra n 6, 284.
24 Ibid 273-274.
25 Ibid 273.
26 Sir John Rolt had become the new Attorney-General on the death of Sir Hugh Cairns.
27 DP O'Connell and A Riordan, supra n 6, 274-275.
28 Acts and Laws, supra n 5, 57-59.
29 This was to enable him to accept a surrender of licences or leases previously granted by the Governor of New South Wales and to issue new instruments in their place.
30 Supra n 5, 60-61.
31 Pacific Islanders Protection Act 1875 (Imp) s 6.
32 Ibid s 7.
33 Report of the Western Pacific Royal Commission, (1883) para 16.
34 Ibid para 38.
35 Supra n 5, 64-65.
36 Id.
37 43 Vic No 1 (Qld).
38 Supra n 5, 68-69.
39 A S Cumbrae-Stewart, supra n 8, 11.
40 (1981) 148 CLR 1.
41 Ibid 10. Indeed, it was not until the signing of the Torres Strait Treaty in 1978 that it was determined that certain small islands near Papua-New Guinea (Kawa, Mata Kawa, Kussa) were not included within the islands annexed in 1879. See generally, H Burmester, “The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement” (1982) 76 American Journal of International Law 321, 325.
42 DP O'Connell and A Riordan, supra n 6, 294-296.
43 Ibid 295.
44 Ibid 298.
45 Ibid 299.
46 (1981) 148 CLR l.
47 (1981) 148 CLR l.
48 Ibid 16.
49 Ibid 28.
50 Ibid 23; see also Wilson J at 29.
51 Ibid 14, 20-21.
52 Ibid 14.
53 Ibid 24.
54 Cooper v Stuart (1889) 14 App Cas 286; Mifirrpum v Nabafco Pty Ltd (1971) 17 FLR 141, 204.
55 Halsbury's Laws of England (4th ed 1974) Vol 6, para 1017.
56 Id.
57 Ibid para 1018.
58 Ibid para 1019.
59 Id. Cf JG Starke, Introduction to International Law (9th ed 1984) 160, n 3.
60 McNeil, K, Common Law Aboriginal Title (1989) ll8Google Scholar, referring to the colonies of Sierra Leone and the Gold Coast, which are classified as settled although lands were cultivated by local inhabitants.
61 Eg by a “paramount chief' as in the case of Basutoland. See RO Roberts-Wray, Commonwealth and Colonial Law (1966) 277-278.
62 DP O'Connell, International Law (2nd ed 1970) Vol 1,440.
63 K McNeil, supra n 60, 133.
64 DP O'Connell and A Riordan, supra n 6, 419-420.
65 Ibid 417.
66 Ibid 418-419.
67 (1944) 10 WACA 201.