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Imagereal Capture .!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 Queensland 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 Australia. 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 New South Wales 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 latitude 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 longitude reckoning from the meridian of Greenwich, including all the islands adjacent in the Pacific Ocean within the latitudes 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 Western Australia, 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 South Australia was established, the boundaries of which were fixed as-on the north the 26th degree of south latitude; on the south the Southern Ocean; 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 Victoria 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.
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