Abstract
The New South Wales squatting district of Moreton Bay became the colony of Queensland in 1859. Large in size but small in number of inhabitants (approximately 25,000 people), the colony was preoccupied with safeguarding its boundaries. This concern soon led to insistent demands on the mother country to carry out her ‘imperial task’ in the south-west Pacific and to engage in territorial expansion.
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References
Q.G.G., vol. I (1859–60), No. 1, p. 2.
Ibid., vol. III (1862), No. 51, p. 296.
F. W. S. Cumbrae-Stewart, The Boundaries of Queensland with Special Reference to The Maritime Boundary and the ‘Territorial Waters Jurisdiction Act, 1878’, (University of Queensland, Brisbane, 1930), p. 9.
Ibid., pp. 9-10. The basis for this commission is contained in the Despatch from the Secretary of State for the Colonies of 20 July 1863 to the Governor of Queensland enclosing reports of the Law Officers of the Crown relating to the extent of Queensland’s jurisdiction over islands in the adjacent seas. See Papers Presented to Parliament, Leg. Assembly of Victoria, 1864, vol. III, No. 16 (‘Guano Islands in the Pacific’).
Lord Normanby to Lord Kimberley, 26 Dec. 1871, as cited in Cumbrae-Stewart, op. cit., p. 10.
Q.G.G., vol. XIII (1872), No. 87, pp. 1325-6.
John Moresby, New Guinea & Polynesia; Discoveries & Surveys in New Guinea and the D’Entrecasteaux Islands, pp. 130–1.
G.B.S.P., 1876, vol. LIV, C.-1566, NO. 13, p. 20.
Ibid., No. 17, pp. 39-40.
Ibid.. Encl. in No. 18, pp. 40-1.
Marjorie G. Jacobs, ‘The Colonial Office and New Guinea, 1874–84’, Historical Studies, Australia and New Zealand, vol. V (May 1952), p. 110.
G.B.S.P., 1883, vol. XLVII, C.-3617, No. 3 and Ends. 1–3, and No. 4, pp. 27-9.
Ibid., End. in No. 4, p. 29.
Q.S., vol. I (Brisbane, 1911), p. 330. Reproduced in D. & C (Doc. B. 1.).
Quoted in Jacobs, op. cit., pp. 110-11.
John Douglas (Vice-President of the Executive Council) in his Memorandum to Governor Kennedy of 27 December 1877. G.B.S.P., 1883, vol. XLVII, C.-3617, End. 2 in No. 3, p. 28.
A confidential source dealing with the pearling industry indicates that in 1877 sixteen firms were operating 109 vessels and boats, employing 700 ‘natives’ and 58 Europeans. In 1883 exports from Thursday Island totalled £123,000 with pearl-shell accounting for nearly £80,000.
See, for example, S. Whittemore Boggs, International Boundaries; a Study of Boundary Functions and Problems (New York, 1940), p. 169.
C.A.O., CP 1 (Colony), series 4,’ separate No. 12’ (London, 2 Apr. 1895).
CA.O., A 1, 06/5950 (Jiear to Government Secretary, Port Moresby, 7 June 1903).
_See, for example, Gunnar Landtman, The Kiwai Papuans of British New Guinea… (London, 1927), pp. 213–16; Wilfred N. Beaver, Unexplored New Guinea … (London, 1920), pp. 164-5, 295.
In ‘British New Guinea. Correspondence respecting Future Administration’, No. 65. Victorian Parliamentary Papers, 1886, vol. III (P. 86/958), pp. 7-8. Reproduced in D. & C. (Doc. B. 2).
Samuel W. Griffith in John Douglas, ‘Maritime Boundary of Queensland’, Queensland Geographical Journal, vol. XIX, No. 5 (1904), p. 36.
C.A.O., CP 1 (Colony), series 5, vol. 10, pp. 14-20. Reproduced in D. & C. (Doc. B. 3).
Ibid., series 6, vol. 2, pp. 457-63. Reproduced in D. & C. (Doc. B. 4).
Ibid., series 5, vol. 12, p. 81.
Ibid., p. 79.
Ibid., series 4,’ separate No. 9’ (London, 19 Mar. 1895) and’ separate No. 12’ (London, 2 Apr. 1895).’ separate No. 9’ has been reproduced in D. & C. (Doc. B. 5).
Hugh Nelson to Sir Henry Norman, 31 Aug. 1895. Ibid., series 5, vol. 12, p. 259.
G.B.S.R.O., 1896, p. 488. Reproduced in D. & C. (Doc. B. 6).
C.A.O., CP 1 (Colony), series 6, vol. 3, pp. 474-8. Reproduced in D. & C. (Doc. B. 7).
Ibid., pp. 475-6.
Hugh Nelson to Lord Lamington, 5 Oct. 1896. Ibid., series 5, vol. 13, p. 253.
Nelson to Lord Lamington, 24 Feb. 1898. C.A.O., A 1, 06/5950. Reproduced in D. & C. (Doc. B. 8).
Despatch No. 27 to Lord Lamington. 1 Apr. 1897. C.A.D. CP 1 (Colony), series 6, vol. 4, p. 39.
Nelson to Lord Lamington, 24 Feb. 1898. C.A.O., A 1, 06/5950.
G.B.S.R.O., 1898, p. 851. Reproduced in D. & C. (Doc. B. 9).
Despatch No. 62 to Lord Lamington (13 Sept. 1899). CA.O., CP 1 (Colony), series 6, vol. 5, p. 270.
Ibid., series 5, vol. 17, p. 114.
‘Re-adjustment of Boundaries between Queensland & British New Guinea’. Statement of 3 Sept. 1901 by Queensland Premier. C.A.O., A 1, 06/5950.
A.R.B.N.G., 1900-1 (Brisbane, 1902), p. x. A confidential source mentions reports of depletion of the pearling grounds (as evidenced by the steady decline of the individual take) during this period. These reports indicated the need for temporary closures and rotation over a wide area. It is not clear whether this development contributed to the Queensland government’s inactivity vis-à-vis a revision of the boundary.
C.P.D., H. of R., vol. XI (22 July 1902), p. 14486.
Robinson to Governor-General, 14 Sept. 1903. The Resident Magistrate’s report of 7 June 1903 is Enclosure No. 1 in the above despatch. C.A.O., A 1, 06/5950. Both of these documents are in D. & C. (Docs. B. 10 and 11).
Reproduced in Queensland Geographical Journal, vol. XIX, No. 5 (1904), pp. 32–6.
Ibid., p. 36.
The memorandum from the Governor-General’s Office—C.A.O., A 1, 06/5950—is reproduced in D. & C. (Doc. B. 12).
Atlee Hunt to the Secretary of the Attorney-General’s Department, 20 June 1906 (ibid.). The letter from the Governor-General’s Office is reproduced in D. & C. (Doc. B. 13).
Minute Paper, Opinion of Attorney-General, C.A.O., A. 1, 06/5950. Although the author did not have access to this document he understands that it is based on the reasoning presented below. The gist of Isaacs’s advice, moreover, is contained in the letter of Prime Minister Deakin to Queensland Premier William Kidston of 6 August 1906 (ibid.).
H. S. Nicholas, The Australian Constitution; An Analysis (2nd ed., Sydney, 1952), pp. 394–412. Section 111: ‘States May Surrender Territory.—The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.’ Section 123: ‘Alteration of Limits of States.—The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation of any State affected.’ Section 128: ‘Mode of Altering the Constitution.—This Constitution shall not be altered except in the following manner: — … No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.’
The Colonial Boundaries Act of 1895 (H.C.T., vol. XX, London, 1898, p. 602) provides: ‘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 Schedule includes Queensland.] Clause 8 of the Covering Act of the Commonwealth Constitution (Nicholas, op. cit., p. 394) states: ‘8. Application of Colonial Boundaries Act. 58 & 59 Vict. c. 34.—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.’
Deakin to Kidston, 6 Aug. 1906. C.A.O., A 1, 06/5950. Reproduced in D. & C. (Doc. B. 14).
Kidston to Deakin, 28 Aug. 1906 (ibid.). See D. & C. (Doc. B. 15).
The matter was first raised by Resident Magistrate A. P. Lyons in his Patrol Report of 23 Feb. 1918—C.A.O., CP 1 (Territory), series 35/198. Lyons then restated the matter in a memorandum to the Government Secretary (Port Moresby) of 27 June 1919 (ibid.). See D. & C. (Doc. B. 16). Although Lyons gives no indication of being familiar with the 1893 correspondence on the subject his suggestions are practically identical with those of Sir Samuel Griffith. In other words, cession to Papua is requested for Saibai, Dauan, Boigu, and members of the Talbot group only.
The circulated paper was seen and initialled by the Commissioner for Native Affairs (24 March) and the Treasurer (25 March), but apparently did not get to the other members of the Council. At the bottom of the cover leaf ‘No order’ is written. C.A.O., CP 1 (Territory), series 35/198. In an interview granted to the Papuan Courier, L. Murray (Official Secretary to the Lieutenant-Governor) mentioned that shortly before his return from leave in early March 1920 the Lieutenant-Governor had held discussions with the Queensland Premier. The possibility of assistance being provided by the Queensland Harbours and Rivers Department in carrying out certain projects in Papua was discussed. See ‘Administrative Activities’, Papuan Courier, 2 Apr. 1920. A subsequent statement indicated that ‘the Queensland Government would put up … beacons [along the Papuan coast]’. Ibid., 7 May 1920.
‘Documents affecting the Constitution of the State of Queensland’, Appendix IV in Q.S., vol. IX (Brisbane, 1903), p. 8063.
Cumbrae-Stewart, The Boundaries of Queensland …, p. 14. The author was Professor of Law at the University of Queensland.
Q.G.G., vol. CXXV (1925), No. 78, p. 798.
Erroneous statements, indicating that the whole of the Torres Strait and Barrier Reef area was a mare clausum, appear in several publications. See, for example, Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, 1927), continuation of fn. 47 on p. 17; Hugh H. L. Bellot in ‘Territorial Limits in the Bristol Channel; the “Fagerness Case”’, B.Y.B.I.L., vol. IX (1928), p. 123; and Sir Graham Bower in William Edward Masterson, ‘National Jurisdiction in the Marginal Seas over Foreign Smuggling Vessels’, T.G.S., vol. XIII (1928), p. 76. Cumbrae-Stewart concluded in 1930 (op. cit., p. 17): ‘I have been unable to find any record of such a claim by Queensland.’
See on this point Cumbrae-Stewart, op. cit., pp. 12-13.
A confidential source which quotes the June 1936 instructions to the captain of the gunboat Larrakia. The question of the territorial limits of Queensland over waters within the Great Barrier Reef and the jurisdiction of the Commonwealth and the state of Queensland over such waters (beyond three miles from the mainland or from any island), had been raised in a letter of Attorney-General Alfred Deakin to the Governor-General of 14 May 1902. In a subsequent memorandum prepared in the Colonial Office any notion that the Commonwealth might ‘legislate for foreigners beyond territorial waters’ was effectively disposed of. With regard to states of the Commonwealth, the memorandum summarizes the situation as follows: ‘The conclusion is irresistible that neither Western Australia nor Queensland exercises territorial jurisdiction over all the waters within the line of their boundaries, and that in fact they only exercise such jurisdiction within the 3 mile limit. The Acts of the Federal Council appear to constitute precedents showing that Queensland has no legislative authority as to fisheries outside the 3 mile limit and these precedents have been approved by the Law Officers of the Crown.’ Memorandum sent by J. Chamberlain to ‘The Officer Administering the Government of Australia’, 25 July 1902. C.A.O., A 1, 06/2050.
The connection is noted by Richard Young in’ sedentary Fisheries and the Convention on the Continental Shelf’, A.J.I.L., vol. LV (1961), pp. 369-70. The recommendations of the International Law Commission were sanctioned by the United Nations Conference on the Law of the Sea (Geneva, 1958). See Convention on the Continental Shelf (UN Doc. A/ Conf. 13/L. 55), Articles 1 and 2. For an excellent general discussion see Francis P. Shepard, The Earth beneath the Sea (second printing, London and Baltimore, 1960), pp. 69-133.
C.A.G., 1953, No. 56 (11 Sept. 1953), p. 2563.
Pearl Fisheries Act 1952-3; Pearl Fisheries Regulations, C.S.R., 1901–56, vol. IV (Adelaide, 1958), pp. 4070-93. A map showing the 100-fathom bathymétrie contour line and the areas of waters ‘that are, or include, proclaimed waters’ is found in L. F. E. Goldie, ‘Australia’s Continental Shelf: Legislation and Proclamations’, The International and Comparative Law Quarterly, vol. III (Oct. 1954), pp. 536-7. See also Goldie, The Continental Shelf Doctrine, LL.M. thesis (Sydney, 1956), passim; John Bach, ‘The Political Economy of Pearlshelling’, Economic History Review, 2nd series, vol. XIV (1961-2), pp. 105-14.
See ‘Queensland Division’ in the Third Schedule of the Pearl Fisheries Act 1952-3, Pearl Fisheries Regulations, pp. 4089-92. In the process of drafting the Queensland and Papuan divisions the peculiarity of the southern point of the Irian boundary being defined as the middle of the mouth of a river at about such and such a longitude was encountered. To avoid such imprecision, the Pearl Fisheries Regulations employed the meridian of 141° 02′ E.L. as the line which bounded the ‘proclaimed waters’ in this area (ibid.). The Continental Shelf Proclamation of 25 Sept. 1953 (C.A.G., 1953, No. 59, p. 2683) does the same.
A.P.C.A., 1953, No. 38, pp. 148-50.
Pearl Fisheries Regulations, pp. 4092-3.
Goldie, ‘Australia’s Continental Shelf …’, p. 538.
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van der Veur, P.W. (1966). Papua Irredenta. In: Search for New Guinea’s Boundaries. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-3620-2_3
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