.!In t r(//icul B()/luclalifs IS ,1 p(/per 'ze!llclz :cas rtLld IJy tilt' !(ltt' Pro­ Ifssor F. Ir. S. Cllmurae-Stt:c(lIt J.:..C., D.C.L.~ first Profcssor of La:e In tltt {; 1l1~I"rsit\' of Queens/alld, IN'jort till' ~lus!r,"zan cllul .\'t:c 'Icaland Society oj Intn';lational Lafu In 1<)33. It ':cas published I'~' thc [~niversity of In }tJ34 ill palJlph/rt tOI11/. but ,has Jor a /~)J/[!, tunc been out of print. in 1C{{'llt ytllrS the (jUestlOn of the !;t'i!t'51S {lJ1d prescnt state of .iustra/ian Statc I)(JUJldarics /las agaIn brtJl can~'(/sst'(l (/nd the }l{'cd f~r a cOllcist' discussioJi of thr legal !ou,:ccs. of t!zrS( !J()llnd{/ri~s. has !Jccn Jelt. For this leason, awl !J(t'(/use oJ zts Intrznslc Illtcrtst, tilt fjdltors are noU' 1't-publishing the paprr in this iss1ft oj the JO/llJwl ':cith the l~iJ1d ptnnission of the authors 5011, Jlr. F. D. Cumbrae-Stc'U.'art. The islands of the South Sea, no\v known as ..\ustralia and Tasmania, were discovered by European navigators, the latest of whom, James Cook, sailing under a comtnission from King George III, took possession of the whole eastern coast of both islands in the name of his Sovereign. Whatever may have been the effect of this in Public International Law, a title by occupation was obtained by the effective settlement of the islands and their appendages which followed. This was accompanied by express acts of Imperial Public Law, under which the whole of the lands so settled came, in legal intendment, into the possession of the King as representing the supreme executive pO"ler of the British Empire. No dispute with any foreign power arose with respect to the King's right and title to these lands of the South, though there is good reason to believe that the F rench Expedition of 1802 was part of a design by Napolean Bonaparte to occupy and settle the southern coast of . But the sea po,ver of the Empire \vas established at Trafalgar, and all that came of the design ,vas a few French names on the South .A.ustralian coast. Later, \vhen the territory acquired was divided by the Sovereign Po,ver into separate colonies under separate administra­ tions, and with different laws, the necessity of the case required that the boundaries between them should be settled, otherwise it would be impossible for the inhabitants of the various colonies to know by what laws they \vere bound or the authorities 'VhOIH they were to obey. The boundaries thus settled \vere eithcr natural, or artificial, that is, lines dra\vn from point to point, or fixed hy meridians and parallels. The \\Tord boundary, as used in reference to line boundaries of States, inlports, froln the very nature and purpose of t he thing described, a line of denlarcation capable of being lnarked on the ground as the visible and pernlanent drlilllitation of sepa rate and independent jurisdictions. 111 ot her words, the very tenn boundary connotes, in its ordinary naturalllleaning, a line of division capahle of being pernlanently fixed. t 'rhe boundaries in question \vcrc

1. Per O'Connor J" South .Australia 'u. Firtoria, 12 C L.R. ;It p. 71~. 2 1'lJc Uni'vcrJily of QuccJlJ/aJld J~(JfO jourJ/al defIned by docuI11ents of 1tnperial ]>ublic L.aw, based on the I{oyal ])rerogative and I~egislativc Enactnlent, including (~otnnlissions isslled to Governors, Orders in Council, IJetters !>atent authorised by Statute, and i\cts of the Imperial ]>arliarnent. 1 1 hese were all issued subsequent to the fI rst act of annexation, which took place at Possession Island, lying ofT Cape York in Queensland, on 22nd j\llgllst, 1770, as recorded in the official Log of H.l\I.S. "Endeav­ H OllL

Sixteen years later, active steps ,,'ere taken to occupy the lands thus annexed to the Ernpire. By Orders in Council of 6th Decetnber, 1786, provision was made under Legislative authority for the transportation of offenders to the east coast of or someone or other of the islands adjacent. Captain Arthur Phillip, R.N., was in the same year appointed Governor of New South \Vales, and in 1787 a Criminal Court was established for that territory, and the boundaries \vere defined in the Governor's Commission.2

They extended from the northern cape or extremity of the coast called Cape York in the of 10 0 37' south to the southerly extremity of the territory or south cape in the latitude of 43 0 39' south, and embraced all the country inland to the west­ ward as far as the 135th degree of reckoning from the of Greenwich, including all the islands adjacent in the Pacific Ocean within the mentioned.

These boundaries, with the exception of the vvestern, were entirely maritime and were fixed by the natural feature of the sea. It was not until 1798 that the land of the South Cape was known to be the island now called Tasmania. The western bound­ ary ran from about the centre of Arnhem Land southward to the coast westward of Eyre's Peninsula. No question arose as to the exact position on the ground of the 135th meridian. It continued to be the western boundary until 1825, \vhen by the Commission issued to the Governor of New South vVales, Lieutenant-General Ralph Darling, it was extended further \\rest to the 129th meridian.

Doubts as to British sovereignty over the territory west of the 129th meridian and French activity on that coast led to the establishment of British settlements there. In 1829, by 10 George IV. C. 22, these settlements were recognised by the name of , and provision made for Orders in Council to make laws for their government. No express boundaries were

2. For first and second COlnmissions issued to Governor Phillip on 12th Octoher, 1786. and 2nd April, 1787, sec lIistorical Records of Australia, series 1, vol. 1, pp. 6-8. ,., .i1ustralian Boundaries J

ftxcd,:1 but it \vas provided that no' part of New South Wales or of Van Dietuan's Land as then established should be comprised within the new colony or settlements of Western Australia. In 1825 rrasmania, which until 1853 was known as Van Diemen's Land, was separated from New South Wales. Its boundaries were defined in the Commission issued to Lieut.­ General }~alph Darling as Captain General and Governor in Chief, as "Our Island of Van Diemen's Land, and all Islands and terri­ tories lying to the southward of Wilson's Promontory in 39° 12' of south latitude, and to the northward of the 45th degree of south latitude, and between the 140th and 150th degrees of east longi­ tude, and also :Nlacquarie Island."4 r-rhe Imperial Act 4 and 5 William IV. C. 95, passed in 1834, made provision for the creation of a new province or provinces within the territory of New South Wales as far east as the 141st degree of east longitude. Letters patent dated 18th February, 1836, were thereupon issued by which the Province of was established, the boundaries of which were fixed as-on the north the 26th degree of south latitude; on the south the ; on the west, the 132nd degree of east longitude; and on the cast, the 141st degree of east longitude, including Kangaroo Island and all other adjacent islands. By the "Australian Constitutions Act, 1850" (13 and 14 Vict. c. 59), sec. 1, the Colony of was established. The land boundary \vas declared to be a line from Cape Howe to the near­ est source of the River Murray and by the course of that river to the eastern boundary of the province of South Australia.;) By the "New South Wales Constitution Act, 1855," sec. 5, the whole watercourse of the River Murray from its source to the eastern boundary of South Australia was declared to be within the Territory of New South Wales;} and by sec. 46 of the Schedule to that Act, the territory of New South Wales was defined as all the territory lying bet\vecn the 129th and 154th meridians of east longitude and north of the 40th parallel of south latitude, includ­ ing all adjacent islands in the }lacific and Lord lIo\ve Island~ except the 1"'erritories comprised within the boundaries of the province of South Australia and the colony of Victoria as at present established.7

3. [In 1831, when the Comnlission to Governor Stirling' was iSSllt.'J, thC' 0 boundaries were defined. 'rhcy conlpt ise the tcrritory lying bl'tw<:'C'1l 13 30' and 3soH' s. Lit. ,lIld \\cst of the 12<)th tllcridi,ln illclllditl~ the adj,llcnt islands ill t he Indi,ln and Southern OCl'ans.l 4. IIistorical Records of All~tralia. 3rJ series. \'01. 5, p. 1. 5. ITaIsbury: Statutes (2nd Ed,). vol. 6. p. 22<}. (). Ihid., p. 23(1. 7. [See now Ncw South \r,des Constitution Act (1902) S. 41. 4 The Ulli'versity of Queensland Law Journal

]~y Letters l l atent issllcd l1nder this Act datcd 6th June, 1859, there was ercctcd into the colony of Quccnsland so lnuch of New South "Vales as lay northward of a line commcncing on the sea­ coast at ]>oint Danger in latitudc about 28°8' south and following the rangc thence which divides the waters of the rI\veed, Clarence, and I<.ichrl1ond I{ivers from those of the Logan and Brisbane I{ivers westerly to the Great Dividing Range southerly to the range dividing the waters of Tenterfield Creek from those of the main head of the Dumaresq River, and following that range west­ erly to the Dumaresq and following that river, known locally as the Severn, do\vnward to its confluence with the Macintyre River, thence following the Macintyre River which lower down becomes the Barwan, downward to the 29th parallel of south latitude, and following that parallel westerly to the 141st meridian of east longi­ tude which is the eastern boundary of South Australia, together with all and every the adjacent islands, their members and appurt­ enances in the Pacific Ocean.s The projecting land named Point Danger by Captain Cook and shown with a small island lying off it, on his chart, is known to-day as Fingal Point and the island as Cook Island. The Point Danger of later charts lies some 3 miles north of Fingal Point, and north of the mouth of the Tweed River. The boundary bet\veen New South Wales and Queensland from Point Danger to \\That is known as "Poppel's Corner," where it meets the South Australian border, has been laid down; and along its course are fences designed to arrest the movement of rabbits and stock infested with ticks. It will be seen that there was room for misconception as to the Western boundary of Queensland north of the 26th parallel. The Letters Patent of 6th June, 1859, severed so much of New South Wales as lay northward of a line therein described downward to the 29th parallel of south latitude and following that parallel westerly to the 141st meridian, the eastern boundary of South Australia. But the northern boundary of South Australia was the 26th parallel. Beyond the 26th parallel all the land to the Western Australian border was part of New South Wales. It was, therefore, contended that north of the 26th parallel, the western boundary of Queensland was the eastern boundary of Western Australia. The question was referred to the Law Officers of the Crown, whose opinion was that the true western boundary of Queensland was the 141st meridian from sea to sea. An address from the Queensland Legislature, asking that the western boundary should be declared to extend at least so far as to include the Gulf of

8. Queensland Statutes, (1936 Reprint) p. 569. ,,1ustralian IJoundaries 5

Carpentaria, led to representations to the Home Government and the passing of further legislation under which South Australia and Queensland received additional parts of New South Wales on their western borders. The legislation took the form of the "Aus­ tralian Colonies Act, 1861."9 As regarded South Australia, by sec. 1, so much of New South Wales to the south of the 26th degree of south latitude as lay between the western boundary of South Australia and the 129th degree of east longitude, was detached from New South Wales and annexed to South Australia, making the boundaries of South Australia and Western Australia coter­ minous up to the 26th parallel. By section 2, power was given to Her Majesty by Letters Patent to annex to any colony then or thereafter to be established in Australia, any territories which might lawfully have been erected into a separate colony under certain terms as to revocation or limits of time of operation. By Letters Patent of 1862, the Territory of Queensland was increased by annexation to it of such of the colony of New South Wales as then lay to the north­ ward of the 26th parallel of south latitude and between the 141st and 138th meridian of east longitude, together with the adjacent islands in the .10 Any chance of obtaining the remaining portion of New South Wales that Queensland might have had was defeated by South Australia, the government of which colony was induced by favour­ able reports of the result of exploration, to petition for annexation of the whole of New South Wales north of the 26th parallel. This request was granted and Letters Patent were issued on 6th July, 1863, annexing to South Australia, until other disposition was made, so much of the colony of New South Wales as lay to the northwards of 26 0 south latitude and between 129 0 and 138 0 cast longitude together with the bays, gulf, and adjacent islands. Thus the passed to South Australia. In 1()t 1 it became a territory of the ConlIllol1wealth \vithout change of boundary.l! Section ,5 of the "Australian ("'olonies Act, 1~(d ," pnn'ided that as the boundaries of certain of the Australian colonil'~ lllight be found to have been itnpC'rfcctly or inconveniently deflncd, and t hat it might beexpcd jent frotll t i 111 e t () t iIII t' t () aIt l'r t hl' In. l'() \\' er \vas given to the (;overnors of any contiguous colonies \"it It the advice of their l~:xt'cuti\'c C'ouncils, to dctcrtnine or :tltcr thl~

9. ITalsbury: Statutes, \ 01. (I. p. 252. 10. ()UCl'IlSLllld \otc8 .Intl Proct'cdings, 1st ~l'''~, lStd. p, 5·~7. 11. N(~rtht'nl 'rcrrit

COtllnlOIl boundat y of any such colonies and the buundary so dl'tcrJllitH.'d \\as to be dcclned the ttue bOlllldaty, as soon as the approyal (If the ('J"(>\vn had been proclaillled in eithcr of the l·()lonie~. 'rhis po\ver to regulate bounoaries locally \vas extended by the ~~t~()lollial J~ollndaries Act, 1HY5" (5H and SY \licL c. 34),1~ \vhirh provided that where the boundaries of a colony had either before or aftcr the passing of the i\ct been altered by Order in t ~()uncil or Letters !latent, the boundaries as so altered should be, and be deC111ed to have been from the date of the alteration, the boundaries of the colony. In the case of a self-governing colony as defined by the Act the consent of the colony to the alteration was required. 'T'he Act no longer applies to Australian States, but the COlnmonwealth is a self-governing colony \vithin the Act.]:~ It should be noted that there was thus ample means of effective rectification of boundaries with little or no expense if the parties concerned could agree. But agreement proved impossible in the only case in which rectific.ation was sought. By the Commonwealth of Australia Constitution Act, 1900, the colonies were erected into a federation, with the result that their common external boundary became purely maritime, and their internal boundaries either natural and artificial, as in the case of the boundaries of New South Wales and Victoria and New South 'Vales and Queensland, or purely artificial as to the remain­ ing internal boundaries which consist of the meridians and para- llels \vhich have been mentioned. ' ~o international questions have been raised regarding the external or maritime boundary of Australia, to \vhich the ordinary rules of Public International Law apply. 'rhere \vas, however, much doubt for many years as to the correct interpretation of the words of Governor Phillip's Com­ tnission ~'including all the islands adjacent in the Pacific Ocean" \vithin the latitudes mentioned. \\That \vere adjacent islands? ~orfolk Island was certainly considered to be one, as it was settled shortly after, and a Criminal Court \\Tas established there by the rmperial Parliament in 1794, in which ::\orfolk Island was described as being one of the islands adjacent to the said eastern coast of Ne\v South Wales. The changes which have taken place in the control of Norfolk Island are recited in the preamble to the '"~orfolk Island Act, tY13," by which it became Federal r-rerritory. ~o special provision has been nlade as to its boundaries, \vhich arc

12. IlaL,hury: Statutes. \'01. (). p. 562. 13. COIlllllollwcalth of Australia CoilstituticIl Act. 1900 sec. 8. [Sec LUIllb. Ttrrilorial C/ian,!!,f's in tilt' Slalf's and Tt'l'l'iIO!"lts oj tilt (,'olllJ1lo11u.'('alth, 37 l\.L.]. (19(d) 17-l.] ,,-lust ratia II IiGUildaries 7 cntirely 111aritill1e. 1 ! Comn1issions 01 the I}eace were issued by the (;overnor of ~e\v South \Vales to residents in Tahiti and Ne\v Zealand. Later, claims to these islands were abandoned. "1~hc j\ustralian Courts Act, 1828,"1;) (9 Geo. IV. c. 83) sec. 4 treated them as not subject to His l\1ajesty. Tahiti eventually became a r--rench possession. In 1840 the Queen's sovereignty was proclaimed over New Zealand. By "The New Zealand Boundaries Act, 1863," the colony of New Zealand was deemed to comprise all territories, islands, and countries lying between the 162nd degree of east longitude, and the 173 rd degree of west longitude, I and between the 33rd and 53rd parallels of south latitude. t) Doubts regarding the islands lying off the Queensland Coast in the Great Barrier Reef and in Torres Strait were settled by their annexation to Queensland. The rules as to maritime bound­ aries, including the law declared by the "Territorial Waters Jurisdiction Act, 1878," apply to these islands. No claim is made by Queensland to waters within the Barrier Reef but outside Territorial waters.17 Two disputes of importance have occurred regarding internal boundaries in Australia, and in both the State of Victoria has been concerned. Both were decided by the Privy Council, one arising over an island in the Murray River, as the boundary be­ tween New South Wales and Victoria, on a case submitted by agreement; the other in connection with the exact position of the meridian forming the boundary between Victoria and South Australia decided on appeal from the High Court of Australia. THE PE~TAL ISLAND CASE When the district of Port Phillip, in New South Wales, was formed the course of the River Murray was made the northern boundary.18 In the channel lay PentaI Island, above S,van llill, about 15 miles in length and fronl one to t\VO n1iles in width. rrhe total area of the island was about 18,400 acres. rrhe channel on

14. COlnIl1Oll\Vealth Acts, vol. IV, p. 3045. 15. IJalsbury: Statutes, YO!. (J, p. 215. 16. At a later stage these boundaries \\'ere l''\tended. SCl' Ilalshul~ St.ttu1c.',,-. vol. 6, p. ~47. 17. Questions relating to the Barrier Rl'ef \\crc discussed ill :1 pn'\'iUllS puhliC,I­ tion of thc lJlli\clsitr of Qucl'lls1.lnd ("'1'1Il' Boundaries of Queellsl.llllr· Till' (;O\'Cfl1IllCllt Printcr, Brisbane, l~JO). LSel' also Lumh. "'rhe l\LtlitilllC Boundaries of QUl'cllsland and Ncw South \Vales" (ll)(J·l). For disnls~i(HI"­ of ..\ustrali,ln off-shore jUlisdictioll illcluding cOlltlO} (If fishing :llId the rcsources of thc contillcllLd shclf Sl'C (l'C()IlIll'Il. P'O!J!t"111J oj .!t"lrld/lI1l COt/sla! j//lisdiltiol1 3-t- British Year HllOk pf Intl'nt,llion:!l LI\\ (tq~S) 19<), H,lill', . . /[(I"!ui/it/ ({lid Iht' l~(/.(' 01 Iht" .~'t'd, I \dl'l.lillc LoI" Rc\ ic\\ (l<)(JO) I.·Coldic. . /u.\trldltl'-' C0l1ti110/llt! Shtlt. ~ Illtl'11l:1tion,d :lnd Cnlll­ p,lr,lti\c L,I\\' Qu,lItcrly (Jt)~·n 535. C:Illll'hclL Rtg,ultl!iol1 of .lustrldilll1 ClItI.\ltll FL\!lo'it'S, I 'r,IS 1l.L R. (19(JO) 10-t-. l.ulIlh, .1r"'lrt/lia1l O/f-Shorf' tItri.\Jil IiUIi. ) \\ otld Rl'\ il'\\ (Jt)(J-t-) YJl IR. ~ ,llId () \ il t .. Co 7(J. 1'ht' ifJli'z'crsit y of (}uccIlJ/and Lo':u Journal t It c norl 11 ern ~ ide \vas much \" ider t II an thaton the soIIthern side. Jt "'a~ originally taken up as portion of a 111uch larger run in the dist I iet of Port j)hillip. I Jl 1~4() an application for a lease of t he island \vas made to the l\Hlltnissioner of CrO\VIl Lands for the district on the ground that the southcrn channel "'as a branch of the Murray and a pCrIllanent streatn, and that it, and not the northern channel, was the true boundary of the run originally taken up. 'fhe Commissioner, however, decided against the application on the ground that the northern channel appeared to be the main channel and the southern channel ,vas merely an ana-branch. The original run \vas subsequently divided into seven runs. Mean­ \"hile, in 1851, l)ort Phillip \\?as erected into the separate colony of \Tictoria, the boundary of which ""as declared to be as follows­ "On the north and south-cast by a straight line to be drawn from Cape Howe to the nearest source of the River Murray and thence by the course of the river to the eastern boundary of South Aus­ tralia." This was read by the New South Wales authorities as giving the southern half of the river to Victoria, and consequently the southern half only of Pental Island. However, as the island was then included in two large runs, the remaining portions of \vhich were admittedly in Victoria, no claim was made by the parent colony to the northern half of the island. In 1853, o\ving to the enterprise of Captain Francis Cadell, the lVlurray was opened up for navigation. Matters in connection \\?ith the collection of customs duties became involved, and the qucstion \\'as raised as to whether the \vhole of the channels of the l\1urray ",'ere not within New South Wales territory. rrhis question was settled by the "New South Wales Constitution Act, 1855," \vhich, by sec. 5,19 declared that the whole watercourse of the l\1urray fronl its source to the South Australian boundary was and should he \vithin the territory of New South \Vales. In July, 1858, the Victorian Government dealt with the whole of the island as a separate run. Shortly after,,"ards the Crown Lands Commissioner on the New South Wales side drew the attention of his (]overnment to the facts and suggested that not only !)ental Island but also Puggarmilly Island, lo,,"er down the river, should be treated as part of New South 'Vales. 1'he Ne\v South "Tales (~()vernment adopted this view. l'he Victorian Government admitted the claim as regards I>uggarn1illy Island since the main channel of the river flowed to the south of it, but refused to admit the claim in regard to Pental Island. Occupiers of Pcntal Island thcn found themselves faced \vith dcrnands for rent by both. Governments.

]<). See Il. 5. .1uJtl'alian Boundaries 9

In 18()() this state of affairs was brought to the notice of the ('olonial OfTtce, and both colonies \vere induced to put the matter before the Privy (~oLlllcil for advice in the fornl of separate cases :-.upplicd by the contestants.

On behalf of l\e\v South \Vales it \vas contended that the course of the ~Iurray throughout each of the channels on either side \vas a continuation and formed part of the main stream. It \vas stated that the river Loddon flo\\Ting in from Victoria ran into t he southern channel two or three miles from the southern end of PentaI Island, and discharged some water into the channel during the \vintcr, but that this discharge except in time of extreme flood did not increase the size of the channel; that during the summer months the Loddon lvas dry and then the only water in the ~()llthern channel came from the Murray. New South Wales asked for a declaration of her right to the island, on the ground that the southern channel was part of the river, and therefore within the territory of ~e\v South Wales, and, secondly, that the island "vas not separated from Ne\v South Wales by the Act creating the colony of Victoria and accordingly remained New South Wales territory. The Victorian case, which was settled by Sir Roundel Palmer (after\vards Lord Chancellor Selborne), and Messrs. J. Dennistoun \Vood, and Watkin Williams, set out the facts of the early occupation and asserted that no claim was made by Nc\v South Wales until 1859; that the southern channel \vas only a continuation of the Loddon, and was really part of the bed of that river; that the Act giving the \vhole river to New South Wales nearly caused the bed of the river to become part of New South Wales and did not take away from Victoria any portion of Port Phillip not covered by the waters of the Murray. The Victorian case was based on t\VO grounds-First, that the southern channel was not the river Murray within the meaning of the Act giving the river to New South \'Tales, and secondly, that the 1\(t had no other effect than to deprive Victoria of that part of its tcrritory which formed the bed of the river.

The Judicial Committee heard the parties, in lR72, and in accordance with the practice, advised, without giving any rcagons, that the tract of land known as Pental Island was \vithin the boundary and fornled part of the territory of the colony of Vic­ toria.20

20. See Despatch frol11 Secretary of State fOf the Colonies to t he (~overllor of New South \V~dcs (rotl'S :tllJ Proc{'cdings of Legislative Assemhly of New South Wales. 1872-3, vol. 1, pp. 519-20). "The l\furray Rivef Qucstion: The Pcntal Island })isputc": l\1c1bourne Argus, 18th April, 18<)0. sait[ at the time to havc been written by 1\1r. ])cnuistoun \\'ood, and "'rhe Case of Pental Island," by Sir \Vlll. Ilanison l\loorc: Law Quarttrly Rt':';rw, vol. xx., p. 23(). to 1'''c {flli'vcrJity of QuccnJ/and La,;!' journal

I·:a r1y in 1H90 the question of the o\vnership of the Murray j{iver and, incidentally, the position of the boundary, was raised by Si r 1fenry j>arkes in a speech at l~roken Hill. rrhis gave rise to a correspondence in April of that year in the l\1elbourne Argus bet\veen j>rofessor f~dward Jenks, ~lr. J. \\1arrington }{ogers, Q.C., lVlr. J. I)ennistoun Wood, and others. SOtlle thirty years ago the contention that the lVlurrumbidgee and not the l\1urray was the true boundary bet\veen New South '\'ales and \lictoria led to a libel action (Ogier v. Norton) in Mel­ bourne \vithout in any \\ray affecting the point at issue. '1'111·: SOlTl~lI AUSTRALIAN AND \rIC1~ORIAN CASE 'rhe bounJary bet\\reen South Australia and Victoria was disputeJ for many years until finally determined on appeal to the IJrivy Council from the High Court of Australia in 1914.21 rrhe disputed boundary had been fixed when the Province of South Australia was created. By Letters }Jatent issued on 19th February, 1836, the eastern boundary of South Australia was declared to be the 141st nleridian, \vhich thus became the western boundary of New South "7ales from the Southern Ocean to the 26th parallel. In 1839 that part of New South Wales which lay south of the }{iver l\1u rray \vas created the district of Port Phillip. 13y the "Australian Constitutions Act, 1842," provision was made for the representation of Port Phillip in the Legislative Council of New South Wales. In that Act the boundaries of Port Phillip were defined as "bounded by a line from Cape Howe to the nearest source of the River Murray and by the course of that river to the eastern bo'undary of the colony of South Australia." In 1gS1 the district of Port Phillip became the colony of Victoria, and, as far as the law of the Empire could make it, the boundary between South l\ustralia and Victoria was the 141st meridian. That fact was undisputed. But where exactly on the surface of the land was the 141st lneridian? Various officers of the Surveys of Ne\v South Wales and South Australia had been entrusted \vith the duty of settling the position of the meriJian line. The first of these was Charles l"yers, in 1R39, \vha fixed and marked a point near to and to the east of the Glenelg }{iver as the approximate meridian. }{evision of his \\rork, ,vith the assistance of Captain Owen Stanley, }~.N., then in comrnand of H.lVLS. "Britomart," satisfied him that the longitude of his lllarked point "ras 2 rninutes 35.5 seconds east of the 141st rneridian. As a matter of fact the marked point was practically correct.

21. The State of South ~Justralia 'U. Tlzr StaIr of Ficloria, 12 C.L.R. 6()7. On Appeal [1914] A.C. 283, 18 C.L.R. 115. .:1ustralian Boundaries 11

In 1846 it became necessary in South Australia to cause the definition, at least approximately, of the eastern boundary of the colony, and correspondence with the New South Wales Govern­ ment resulted in instructions to Mr. Henry Wade, of the New South Wales Survey, to mark a boundary for police purposes bet\veen the Port Phillip district and South Australia. 1\Ilr. "Vade accordingly proceeded to the mouth of the Glenelg. There he found Tyer's marked point, and taking Tyer's later opinion that the 141st meridian was 2 miles 28 chains to the west of Tyer's mark and of the mouth of the Glenelg, he proceeded to lay down a north-and-south line for 123 miles from the coast. Wade's line was then, in 1847, officially adopted by South Aus­ tralia and New South Wales as their mutu:al boundary as far as it extended. Half the cost of the survey was paid by each colony, the expenditure being sanctioned by the Lords of the Treasury on 22nd November, 1850. About the end of 1850 Wade's line \vas carried on to the River lVlurray with the approval of the Govern­ ments of Great Britain, South Australia, and Victoria, and from that time until 1869 Wade's line, as extended to the Murray, \vas the de facto boundary, although it was common ground that it was not on the true meridian. In 1866 the question of the true boundary between South Australia and :\ew South \\Tales north of the ~furray "vas raised. "Tas it to be a prolongation of the boundary between South ...;\ustralia and \7ictoria, \vhich was about 2t miles west of the 141 st meridian, or was it to be the true 141st meridian? In 1868 the Governn1ent astronomers of South Australia and New South Wales fixed the position of the 141st meridian with the latest Inethod of observation, and confirmed the fact that the boundary bet\veen South Australia and Victoria, as fIxed in 1847, gave \Tictoria a strip of land from the sea to the l\1urray of 2 Iniles 19 chains, lying to the west of the 141st meridian, the boundary fIxed by Imperial law. Victoria refused to depart fronl the position created ill 18-1-7 or to join in stating a case for the opinion of the l>ri\'y (~oullril, and the Inatter renlained in dispute until 1910, \\'hen the estab­ lishIllcnt of the Ifigh (~ourt Jllade it possible to try the issue ill all action for the recovery of posses:;iol1 of the strip in dispute and consequent relief.

r rhe action ·\va s t ricdill 1\ leI bourill' inthc ea IIy pat t 0 [ 1q II before a full Bench of .J us tices, and t hl' \,'irt orian contl'n tion \\' as llpheld. l~'ollr of thl' Justices \vert' of opinioll that an iJllplied authority \\,'as gi\l'1l to thl' (;o\'l'rnOIS of South j\llstralia and Ne\v South \rall's jointly, possibly \vithout, and rt.'rtainl~· \\ ith, the concurrence of the CrO\Vll, pernlanently to locate and Inark on the ground the boundary fi.\.l'd by lYllperialla\\T as the 141st IneriJian, as soon as circulnstances called for the exercise of that authority; and once fixed by that authority, that boundary Blust stand, although it \vas afterwards found to have been fixed in the wrong place; no judicial authority having power to correct the error. I-liggins J. \vas of opinion that nothing except an Act of the Imperial Ilarliament could alter the boundary fixed by a previous Act. On appeal to the I-lrivy Council the judgment of the High Court \vas affirtlled. The decision of the I>rivy Council was based on the view that on the true construction of the Letters Patent it \-vas contemplated that the 141st meridian should be ascertained and represented upon the surface of the earth, and that there ,vas ilnplied authority given to the Executives of the two colonies to do such acts as \vere necessary to that end; that on the fact the t\VO Executives had acted \vithin that implied authority; and that the line agreed and marked became and "ras the boundary be­ t\ycen South Australia and Victoria.